Chapter Vi—Department of the Navy

CHAPTER VI—DEPARTMENT OF THE NAVY

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 documents affecting the public ...... 45 705 Public affairs regulations ...... 134

SUBCHAPTER B—NAVIGATION 706 Certifications and exemptions under the Inter- national Regulations for Preventing Collisions at Sea, 1972 ...... 172 707 Special rules with respect to additional station and signal lights ...... 183

SUBCHAPTER C—PERSONNEL 716 Death gratuity ...... 184 718 Missing Persons Act ...... 190 719 Regulations supplementing the manual for courts- martial ...... 192 720 Delivery of personnel; service of process and subpoenas; production of official records ...... 206 721–722 [Reserved] 723 Board for Correction of Naval Records ...... 223 724 Naval Discharge Review Board ...... 229 725 Release of official information for litigation purposes and testimony by Department of the Navy personnel ...... 263 726 Payments of amounts due mentally incompetent members of the Naval service ...... 276 727 Legal assistance ...... 279 728 Medical and dental care for eligible persons at Navy medical department facilities ...... 284 732 Nonnaval medical and dental care ...... 348

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Part Page 733 Assistance to and support of dependents; paternity complaints ...... 362 734 Garnishment of pay of Naval military and civilian personnel for collection of child support and alimony ...... 368 735 Reporting births and deaths in cooperation with other agencies ...... 370

SUBCHAPTER D—PROCUREMENT, PROPERTY, PATENTS, AND CONTRACTS 736 Disposition of property ...... 372 744 Policies and procedures for the protection of proprietary rights in technical information proposed for release to foreign governments ...... 376 746 Licensing of government inventions in the custody of the Department of the Navy ...... 377

SUBCHAPTER E—CLAIMS 750 General claims regulations ...... 382 751 Personnel claims regulations ...... 407 752 Admiralty claims ...... 436 755 Claims for injuries to property under Article 139 of the Uniform Code of Military Justice ...... 439 756 Nonappropriated-fund claims regulations ...... 441 757 Affirmative claims regulations ...... 444

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 ...... 452 762 [Reserved] 763 Rules governing public access ...... 464

SUBCHAPTER G—MISCELLANEOUS RULES 765 Rules applicable to the public ...... 467 766 Use of Department of the Navy aviation facilities by civil aircraft ...... 471 767 Application guidelines for archeological research permits on ship and aircraft wrecks under the jurisdiction of the Department of the Navy ...... 481 768–769 [Reserved] 770 Rules limiting public access to particular installations ...... 485 771–774 [Reserved] 775 Procedures for implementing the National Envi- ronmental Policy Act ...... 496

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Part Page 776 Professional conduct of attorneys practicing under the cognizance and supervision of the Judge Ad- vocate General ...... 504 777–799 [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- Sec. tion). 700.101 Origin and history of United States 700.327 The General Counsel of the Navy. Navy Regulations. THE OFFICE THE SECRETARY OF THE NAVY/THE 700.102 Statutory authority for issuance of STAFF ASSISTANTS United States Navy Regulations. 700.330 The Staff Assistants. 700.103 Purpose and effect of United States 700.331 The Judge Advocate General. Navy Regulations. 700.332 The Naval Inspector General. 700.104 Statutory authority for prescription 700.333 The Chief of Naval Research. of other regulations. 700.334 The Chief of Information. 700.105 Issuance of directives by other offi- 700.335 The Chief of Legislative Affairs. cers and officials. 700.336 The Director, Office of Program Ap- 700.106 Control of administrative require- praisal. ments. 700.337 The Auditor General. 700.107 Maintenance of Navy Regulations. SUBPART D—THE CHIEF OF NAVAL OPER- SUBPART B—THE DEPARTMENT OF THE NAVY ATIONS 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 SUBPART C—THE SECRETARY OF THE NAVY Operations. THE SECRETARY OF THE NAVY 700.405 Delegated authority and responsi- 700.301 Responsibilities of the Secretary of bility. the Navy. 700.406 Naval Vessel Register, classification 700.302 Responsibilities within the Depart- of naval craft, and status of ships and ment of the Navy. service craft. 700.303 Succession. SUBPART E—THE COMMANDANT OF THE MA- 700.304 Recommendations to Congress. RINE CORPS 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 THE OFFICE OF THE SECRETARY OF THE NAVY Corps. 700.310 Composition. 700.504 Statutory authority and responsi- 700.311 Sole responsibilities. bility of the Headquarters, Marine Corps. 700.312 Authority over organizational mat- 700.505 Delegated authority and responsi- ters. bility. THE OFFICE OF THE SECRETARY OF THE NAVY/ SUBPART F—THE UNITED STATES COAST THE CIVILIAN EXECUTIVE ASSISTANTS GUARD (WHEN OPERATING AS A SERVICE OF 700.320 The Civilian Executive Assistants. THE NAVY) 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 700.845 Maintenance of logs. OTHER COMMANDERS 700.846 Status of logs. TITLES AND DUTIES OF COMMANDERS 700.847 Responsibility of a master of an in- 700.701 Titles of commanders. service ship of the Military Sealift Com- 700.702 Responsibility and authority of command. manders. 700.848 Relations with merchant seamen. 700.703 To announce assumption of com- 700.855 Status of boats. mand. 700.856 Pilotage. 700.704 Readiness. 700.857 Safe navigation and regulations gov- 700.705 Observance of international law. erning operation of ships and aircraft. 700.706 Keeping immediate superiors in- 700.859 Quarantine. formed. 700.860 Customs and immigration inspec- STAFFS OF COMMANDERS tions. 700.710 Organization of a staff. SPECIAL CIRCUMSTANCES/SHIPS IN NAVAL STA- 700.711 Authority and responsibilities of of- TIONS AND SHIPYARDS ficers of a staff. 700.871 Responsibility for safety of ships and ADMINISTRATION AND DISCIPLINE craft at a naval station or shipyard. 700.720 Administration and discipline: Staff 700.872 Ships and craft in drydock. embarked. 700.873 Inspection incident to commis- 700.721 Administration and discipline: Staff sioning of ships. based ashore. SPECIAL CIRCUMSTANCES/PROSPECTIVE COM- 700.722 Administration and discipline: Staff MANDING OFFICERS unassigned to an administrative com- 700.880 Duties of the prospective command. manding officer of a ship. 700.723 Administration and discipline: Sepa- SUBPART I—THE SENIOR OFFICER PRESENT rate and detached command. CONTENTS SUBPART HE OMMANDING FFICER H—T C O 700.901 The senior officer present. COMMANDING OFFICERS IN GENERAL 700.902 Eligibility for command at sea. 700.801 Applicability. 700.903 Authority and responsibility. 700.802 Responsibility. 700.904 Authority of senior officer of the 700.804 Organization of commands. Marine Corps present. 700.809 Persons found under incriminating 700.922 Shore patrol. circumstances. 700.923 Precautions for health. 700.810 Rules for visits. 700.924 Medical or dental aid to persons not 700.811 Dealers, tradesmen, and agents. in the naval service. 700.812 Postal matters. 700.815 Deaths. 700.934 Exercise of power of consul. 700.816 The American National Red Cross. 700.939 Granting of asylum and temporary 700.819 Records. refuge. 700.822 Delivery of personnel to civil au- SUBPART J—PRECEDENCE, AUTHORITY AND thorities and service of subpoena or COMMAND other process. AUTHORITY 700.826 Physical security. 700.1020 Exercise of authority. 700.827 Effectiveness for service. 700.1026 Authority of an officer who suc- 700.828 Search by foreign authorities. ceeds to command. 700.832 Environment pollution. 700.1038 Authority of a sentry. 700.834 Care of ships, aircraft, vehicles and DETAIL TO DUTY 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. COMMANDING OFFICERS AFLOAT 700.1058 Command of a submarine. 700.840 Unauthorized persons on board. 700.1059 Command of a staff corps activity. 700.841 Control of passengers. SUBPART K—GENERAL REGULATIONS 700.842 Authority over passengers. STANDARDS OF CONDUCT 700.844 Marriages on board. 700.1101 Demand for court-martial.

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700.1113 Endorsement of commercial prod- (c) Thirteen editions of Navy Regula- uct or process. tions were published in accordance 700.1120 Personal privacy and rights of indi- with this authority (later codified as viduals regarding their personal records. Section 1547, Revised Statutes) be- OFFICIAL RECORDS 700.1121 Disclosure, publication and security tween 1865 and 1948. The 1973 edition of of official information. Navy Regulations was published under 700.1126 Correction of naval records. authority of 10 United States Code 700.1127 Control of official records. (U.S.C.) 6011, which provided that 700.1128 Official records in civil courts. ‘‘United States Navy Regulations shall DUTIES OF INDIVIDUALS be issued by the Secretary of the Navy 700.1138 Responsibilities concerning mari- with the approval of the President.’’ In juana, narcotics, and other controlled 1981, this provision was amended to substances. eliminate the requirement for presi- 700.1139 Rules for preventing collisions, 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. SUBPART A—NAVY REGULATIONS § 700.102 Statutory authority for § 700.101 Origin and history of United issuance of United States Navy Reg- States Navy Regulations. ulations. (a) United States Navy Regulations Title 10, United States Code, section began with the enactment by the Con- 6011, provides that United States Navy tinental Congress of the ‘‘Rules for the Regulations shall be issued by the Sec- Regulation of the Navy of the United retary of the Navy. Regulations issued Colonies’’ on November 28, 1775. The under this authority are permanent first issuance by the United States regulations of general applicability, as Government which covered this subject opposed to regulations issued by the matter was ‘‘An Act for the Govern- Secretary under § 700.104. ment of the Navy of the United States,’’ enacted on March 2, 1799. This § 700.103 Purpose and effect of United was followed the next year by ‘‘An Act States Navy Regulations. for the Better Government of the Navy United States Navy Regulation is the of the United States.’’ principle regulatory document of the (b) In the years preceding the Civil Department of the Navy, endowed with War, twelve successor publications the sanction of law, as to duty, respon- were promulgated under a number of sibility, authority, distinctions and re- titles by the President, the Navy De- lationships of various commands, offi- partment and the Secretary of the Navy. A decision by the Attorney Gen- cials and individuals. Other directives eral that the last of the pre-Civil War issued within the Department of the issuances was invalid led to the inclu- Navy shall not conflict with, alter or sion in the 1862 naval appropriations amend any provision of Navy Regula- bill of a provision that ‘‘the orders, tions. regulations, and instructions here- tofore issued by the Secretary of the § 700.104 Statutory authority for pre- Navy be, and they are hereby, recog- scription of other regulations. nized as the regulations of the Navy The Secretary of the Navy may pre- Department, subject, however, to such scribe regulations to carry out his or alterations as the Secretary of the her functions, powers and duties under Navy may adopt, with the approbation Title 10, United States Code. of the President of the United States.’’

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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: (1) Directives which implement or (b) Changes to Navy Regulations will amplify directives from higher author- be numbered consecutively and issued ity will not be issued unless absolutely as page changes. Advance changes may essential. be used when required; these will be (2) Administrative reporting require- numbered consecutively and incor- ments will not be imposed unless the porated in page changes at frequent in- expected value of the information to be tervals. gained is significantly greater than the SUBPART B—THE DEPARTMENT OF THE NAVY cumulative burden imposed. (b) Each officer or official issuing a § 700.201 Origin and authority of the directive or imposing a reporting re- Department of the Navy. quirement will periodically, in accord- (a) The naval affairs of the country ance with instructions to be issued by began with the war for independence, appropriate authority, review such di- the American Revolution. On 13 Octo- rective or report with a view toward ber 1775, Congress passed legislation for the following: ships. This, in effect, created the conti- (1) Reduction of directives by can- nental Navy. Two battalions of Ma- cellation or consolidation; or (2) Reduction of reporting require- rines were authorized on 10 November ments by elimination of the report, re- 1775. Under the Constitution, the First duction in the frequency of the report, Congress on 7 August 1789 assigned re- or combination with other reports. sponsibility for the conduct of naval af- (c) When issuance of a directive or a fairs to the War Department. On 30 tasking will result in imposition of ad- April 1798, the Congress established a ditional administrative requirements separate Department of the Navy with on commands not within the chain of the Secretary of the Navy as its chief command or the issuing authority, the officer. On 11 July 1798, the United first common superior of the com- States Marine Corps was established as mands affected by the requirement a separate service, and in 1834 was must concur in the issuance. made a part of the Department of the Navy. § 700.107 Maintenance of Navy Regula- (b) The National Security Act of 1947, tions. as amended, is the fundamental law (a) The Chief of Naval Operations is governing the position of the Depart- responsible for maintaining Navy Reg- ment of the Navy in the organization ulations, and for ensuring that Navy for national defense. In 1949, the Act Regulations conforms to the current was amended to establish the Depart- needs of the Department of the Navy. ment of Defense as an Executive De- When any person in the Department of 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 (f) The presentation and justification the central executive offices of the De- of the position of the Department of partment of the Navy located at the the Navy on the plans, programs and seat of Government. The Navy Depart- policies of the Department of Defense; ment is organizationally comprised of (g) The effective supervision and con- the Office of the Secretary of the Navy, trol of the intelligence activities of the the Office of the Chief of Naval Oper- Department of the Navy; and ations, and the Headquarters, Marine (h) Such other activities as may be Corps. In addition, the Headquarters, prescribed by law or by the president Coast Guard, is included when the or Secretary of Defense. Coast Guard is operating as a service in the Navy. § 700.302 Responsibilities within the (c) The operating forces of the Navy Department of the Navy. and the Marine Corps comprise the several fleets, seagoing forces, Fleet Ma- The Secretary is the head of the De- rine Forces, other assigned Marine partment of the Navy. The Secretary is Corps Forces, the Military Sealift responsible for, and has the authority Command and other forces and activi- necessary to conduct, all affairs of the ties that may be assigned thereto by Department of the Navy, including the the President or the Secretary of the following functions: Navy. (a) Recruiting; (d) The shore establishment is com- (b) Organizing; prised of shore activities with defined (c) Supplying; missions approved for establishment by (d) Equipping (including research and the Secretary of the Navy. development); SUBPART C—THE SECRETARY OF THE NAVY (e) Training; THE SECRETARY OF THE NAVY (f) Servicing; § 700.301 Responsibilities of the Sec- (g) Mobilizing; retary of the Navy. (h) Demobilizing; The Secretary of the Navy is respon- (i) Administering (including the mo- sible to the Secretary of Defense for: rale and welfare of personnel); (a) The functioning and efficiency of (j) Maintaining; the Department of the Navy; (k) The construction, outfitting and (b) The formulation of policies and repair of military equipment; and programs by the Department of the (l) The construction, maintenance Navy that are fully consistent with na- and repair of buildings, and interests in tional security objectives and policies real property necessary to carry out established by the President or the the responsibilities specified in this ar- Secretary of Defense; ticle. (c) The effective and timely implementation of policy, program and § 700.303 Succession. budget decisions and instructions of the President or the Secretary of De- If the Secretary of the Navy dies, re- fense relating to the functions of the signs, is removed from office, is absent Department of the Navy; or is disabled, the person who is high- (d) Carrying out the functions of the est on the following list, and who is not Department of the Navy so as to fulfill absent or disabled, shall perform the (to the maximum extent practicable) duties of the Secretary until the Presi- the current and future operational re- dent directs another person to perform quirement of the unified and specified those duties or until the absence or dis- combatant commands; ability ceases: (e) Effective cooperation and coordi- (a) The Under Secretary of the Navy; nation between the Department of the (b) The Assistant Secretaries of the Navy and the other military depart- Navy, in the order prescribed by the ments and agencies of the Department Secretary of the Navy and approved by of Defense to provide for more effec- the Secretary of Defense; tive, efficient and economical adminis- (c) The Chief of Naval Operations; tration and eliminate duplication;

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(d) The Commandant of the Marine (3) The Assistant Secretary of the Corps. Navy (Manpower and Reserve Affairs); (4) The Assistant Secretary of the § 700.304 Recommendations to Con- Navy (Research, Development and Ac- gress. quisition); After first informing the Secretary of (5) The Assistant Secretary of the Defense, the Secretary of the Navy Navy (Installations and Environment); may make such recommendations to and Congress relating to the Department of (6) The General Counsel of the De- Defense as he or she considers appro- partment of the Navy. priate. (b) The Staff Assistants: § 700.305 Assignment of functions. (1) The Judge Advocate General of the Navy; The Secretary of the Navy may as- (2) The Naval Inspector General; sign such functions, powers, and duties as he or she considers appropriate to (3) The Chief of Naval Research; the Under Secretary of the Navy and to (4) The Chief of Information; the Assistant Secretaries of the Navy. (5) The Chief of Legislative Affairs; Officers of the Navy and the Marine (6) The Auditor General of the Navy; Corps shall, as directed by the Sec- (7) The Director, Office of Program retary, report on any matter to the Appraisal; and Secretary, the Under Secretary or any (8) Such other officers and officials as Assistant Secretary. may be established by law or as the Secretary of the Navy may establish or § 700.306 Assignment of duty and ti- designate. tles. The Secretary of the Navy may: § 700.311 Sole responsibilities. (a) Assign, detail and prescribe the (a) The Office of the Secretary of the duties of members of the Navy and Ma- Navy shall have sole responsibility rine Corps and civilian personnel of the within the Office of the Secretary of Department of the Navy; and the Navy, the Office of the Chief of (b) Change the title of any officer or Naval Operations and the Head- activity of the Department of the Navy quarters, Marine Corps, for the fol- not prescribed by law. 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- THE OFFICE OF THE SECRETARY OF THE NAVY ational test and evaluation, which are the responsibilities of the Office of the § 700.310 Composition. Chief of Naval Operations and the The function of the Office of the Sec- Headquarters Marine Corps. retary of the Navy is to assist the Sec- (b) The following offices within the retary in carrying out his or her re- Office of the Secretary of the Navy are sponsibilities. The Office of the Sec- designated to conduct the functions retary of the Navy is composed of the specified in paragraph (a) of this sec- following: tion. No office or other entity may be (a) The Civilian Executive Assist- established or designated within the ants: Office of the Chief of Naval Operations (1) The Under Secretary of the Navy; or the Headquarters, Marine Corps, to (2) The Assistant Secretary of the conduct any of the functions specified Navy (Financial Management); 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 also the Navy Senior Procurement Ex- and the Commandant of the Marine ecutive and Senior Department of the Corps, or otherwise participating in Navy Information Resource Manage- that function within the executive part ment Official. Responsibilities include of the Department under the direction developing acquisition policy and proof the office assigned responsibility for cedures for all Department of the Navy that function in the Office of the Sec- research, development, production, retary of the Navy. shipbuilding and production/logistics support programs; and Department of § 700.312 Authority over organiza- the Navy international technology tional matters. transfer. Subject to the approval or guidance (2) The Auditor General is respon- of the Secretary of the Navy, the Civil- sible for the internal auditing function ian Executive Assistants, the Chief of within the Department of the Navy. Naval Operations, the Commandant of (3) The Assistant Secretary of the the Marine Corps and the Staff Assist- Navy (Financial Management) is re- ants are individually authorized to or- sponsible for comptrollership, includ- ganize, assign and reassign responsibil- ing financial management, within the ities within their respective commands Department of the Navy. or offices, including the establishment (4) The Naval Inspector General is re- and disestablishment of such compo- sponsible for the inspector general nent organizations as may be nec- function within the Department of the essary, subject to the following: Navy. (a) The authority to disestablish may (5) The Chief of Legislative Affairs is not be exercised with respect to any or- responsible for legislative affairs with- ganizational component of the Depart- in the Department of the Navy. ment established by law. (6) The Chief of Information is re- (b) The Secretary retains the author- sponsible for public affairs within the Department of the Navy. ity to approve the establishment and (c) The Secretary shall: disestablishment of shore activities. (1) Prescribe the relationship of each THE OFFICE OF THE SECRETARY OF THE NAVY/ office or other entity established or THE CIVILIAN EXECUTIVE ASSISTANTS designated under paragraph (b) of this § 700.320 The Civilian Executive As- section: sistants. (i) To the Chief of Naval Operations 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 resistance 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 engineering, 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 accounting 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 integrity; THE OFFICE OF THE SECRETARY OF THE NAVY/ THE STAFF ASSISTANTS (2) Exercises broad supervision, general guidance and coordination for all § 700.330 The Staff Assistants. Department of the Navy inspection, 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 who is serving as Chairman or bers of committees of the United Vice Chairman of the Joint Chiefs of States Congress and their staffs which Staff. are necessary in the transaction of official Government business (except ap- § 700.402 Succession. propriations matters) affecting the De- When there is a vacancy in the posi- partment of the Navy; and tion of Chief of Naval Operations, or (b) Furnish staff support, advice and during the absence or disability of the assistance to the Secretary of the Chief of Naval Operations: Navy, the Chief of Naval Operations, (a) The Vice Chief of Naval Oper- the Commandant of the Marine Corps ations shall perform the duties of the and all other principal civilian and Chief of Naval Operations until a suc- military officials of the Department of cessor is appointed or the absence or the Navy concerning congressional as- disability ceases. pects of the Department of the Navy 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- absent or disabled, unless the President gram Appraisal. 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 ceases, whichever occurs first. § 700.337 The Auditor General. § 700.403 Statutory authority and re- (a) The Auditor General of the Navy sponsibility of the Chief of Naval is responsible for: Operations. (1) Serving as Director of the Naval 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 SUBPART D—THE CHIEF OF NAVAL OPER- shall: ATIONS (1) Preside over the Office of the Chief of Naval Operations; § 700.401 Precedence. (2) Transmit the plans and rec- The Chief of Naval Operations, while ommendations of the Office of the so serving, has the grade of admiral. In Chief of Naval Operations to the Sec- the performance of duties within the retary and advise the Secretary with Department of the Navy, the Chief of regard to such plans and recommenda- Naval Operations takes precedence tions; above all other officers of the naval (3) After approval of the plans or rec- service, except an officer 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 responsibility of the Office of the to commanders of unified or specified Chief of Naval Operations. combatant commands, under the direction 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 morale 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 or the Assistant Commandant ceases, ‘‘active status, in service,’’ except whichever occurs first. those described by paragraph (c) of this section, shall be referred to by name, § 700.503 Statutory authority and re- when assigned, classification, and hull sponsibility of the Commandant of number (e.g., ‘‘HIGHPOINT PCH–1’’ or the Marine Corps. ‘‘YOGN–8’’). (a) Except as otherwise prescribed by (e) The Chief of Naval Operations law and subject to the statutory au- shall designate hospital ships and med- thority of the Secretary of the Navy to ical aircraft as he or she deems nec- assign functions, powers and duties, essary. Such designation shall be in the Commandant of the Marine Corps compliance with the Geneva Conven- performs duties under the authority, tion for the Amelioration of the Condi- direction and control of the Secretary tions of Wounded, Sick and Ship of the Navy and is directly responsible wrecked Members of the Armed Forces to the Secretary. at Sea of 12 August 1949. The Chief of (b) Subject to the authority, direc- Naval Operations shall ensure compliance 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: SUBPART E—THE COMMANDANT OF THE MA- (1) Preside over the Headquarters, RINE CORPS Marine Corps; (2) Transmit the plans and rec- § 700.501 Precedence. ommendations of the Headquarters, The Commandant of the Marine Marine Corps, to the Secretary and ad- Corps, while so serving, has the grade vise the Secretary with regard to such of general. In the performance of duties plans and recommendations; within the Department of the Navy, (3) After approval of the plans or rec- the Commandant of the Marine Corps ommendations of the Headquarters, takes precedence above all other offi- Marine Corps, by the Secretary, act as cers of the Marine Corps, except an of- the agent of the Secretary in carrying ficer of the Marine Corps who is serv- them into effect; 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 When there is a vacancy in the office members and organizations of the Navy of Commandant of the Marine Corps, or and the Marine Corps as the Secretary 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 (b) If there is a vacancy in the office are assigned to the Commandant of the of the Assistant Commandant of the Marine Corps by the President, the Marine Corps or the Assistant Com- Secretary of Defense or the Secretary mandant is absent or disabled, unless of the Navy. the President directs otherwise, the (c) The Commandant of the Marine most senior officer of the Marine Corps Corps shall also perform the statutory in the Headquarters, Marine Corps, duties prescribed for a member of the who is not absent or disabled and who Joint Chiefs of Staff. is not restricted in the performance of (1) To the extent that such action duty shall perform the duties of the does not impair the independence of Commandant until a successor to the the Commandant of the Marine Corps Commandant or the Assistant Com- in the performance of duties as a mem- mandant is appointed or until the ab- ber of the Joint Chiefs of Staff, the sence or disability of the Commandant 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- tain the readiness of the Coast Guard ment; and for leadership in maintain- to function as a specialized service in ing the morale and motivation of Ma- the Navy for the performance of na- rine Corps personnel and the prestige tional defense missions, as directed; of a career in the Marine Corps. (b) Plan for and determine the SUBPART F—THE UNITED STATES COAST present and future needs of the Coast GUARD (WHEN OPERATING AS A SERVICE IN THE NAVY) Guard, both quantitative and qualitative, for personnel, including reserve § 700.601 Relationship and operation personnel; as a service in the Navy. (c) Budget for the Coast Guard, ex- (a) Upon the declaration of war or cept as may be otherwise directed by when the President directs, the Coast the Secretary of the Navy; Guard shall operate as a service in the (d) Plan for and determine the sup- Navy, and shall be subject to the orders port needs of the Coast Guard for of the Secretary of the Navy. While so equipment, materials, weapons or com- operating as a service in the Navy, and bat systems, supplies, facilities, main- to the extent practicable, Coast Guard tenance and supporting services; operations shall be integrated and uni- (e) Exercise essential military ad- form with Navy operation. ministration of the Coast Guard. This (b) Whenever the Coast Guard oper- includes, but is not limited to, such ates as a service in the Navy: matters as discipline, communications, (1) Applicable appropriations of the personnel records and accounting, con- Coast Guard to cover expenses shall be forming, as practicable, to Navy proce- available for transfer to the Depart- dures; ment of the Navy and supplemented, as (f) In conjunction with the Director required, from applicable appropria- of Naval Intelligence, and the National tions of the Department of the Navy; Intelligence Community, where appro- (2) Personnel of the Coast Guard priate, establish and maintain an intel- shall be eligible to receive gratuities, ligence and security capability to pro- medals and other insignia of honor on vide support for the maritime defense the same basis as personnel in the zones, port security, narcotics interdic- naval service or serving in any capac- tion, anti-terrorist activity, fishery ac- ity with the Navy; and tivity, pollution monitoring and other (3) To the extent practicable, Coast Coast Guard missions; Guard personnel, ships, aircraft and fa- (g) Enforce or assist in enforcing Fed- cilities will be utilized as organized eral laws on and under the high seas Coast Guard units. and waters subject to the jurisdiction of the United States; § 700.602 The Commandant of the (h) Administer, promulgate and en- Coast Guard. force regulations for the promotion of (a) The Commandant of the Coast safety of life and property on and under Guard is the senior officer of the the high seas and waters subject to the United States Coast Guard. jurisdiction of the United States. This (b) When reporting to the Secretary applies to those matters not specifi- of the Navy, the Commandant will re- cally delegated by law to some other port to the Chief of Naval Operations. executive department;

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(i) Develop, establish, maintain and they may communicate directly with operate, with due regard to the require- any of their subordinates. ments of national defense, aids to mar- (b) Commanders shall ensure that itime navigation, ice breaking facili- subordinate commands are fully aware ties, for the promotion of safety on, of the importance of strong, dynamic under and over the high seas and wa- leadership and its relationship to the ters subject to the jurisdiction of the overall efficiency and readiness of United States; naval forces. Commanders shall exer- (j) Engage in oceanographic surveys cise positive leadership and actively in conjunction with the Office of the develop the highest qualities of leader- Oceanographer of the Navy; and ship in persons with positions of au- (k) Continue in effect under the Sec- thority and responsibility throughout retary of the Navy those other func- their commands. tions, powers and duties vested in the (c) Subject to orders of higher au- Commandant by appropriate orders and thority, and subject to the provisions regulations of the Secretary of Trans- of § 700.106 of these regulations, com- portation on the day prior to the effec- manders shall issue such regulations tive date of transfer of the Coast Guard and instructions as may be necessary to the Department of the Navy until for the proper administration of their specifically modified or terminated by commands. the Secretary of the Navy. (d) Commanders shall hold the same SUBPART G—COMMANDERS IN CHIEF AND OTHER COMMANDERS relationship to their flagships, or to TITLES AND DUTIES OF COMMANDERS shore activities of the command in which their headquarters may be lo- § 700.701 Titles of commanders. cated, in regard to internal administra- (a) The commander of a principal or- tion and discipline, as to any other ganization of the operating forces of ship or shore activity of their com- the Navy, as determined by the chief of mands. Naval Operations, or the officer who has succeeded to such command as pro- § 700.703 To announce assumption of vided elsewhere in these regulations, command. shall have the title ‘‘Commander in (a) Upon assuming command, com- Chief.’’ The name of the organization manders shall so advise appropriate su- under the command of such an officer periors, and the units of their com- shall be added to form his or her offi- mands. cial title. (b) When appropriate, commanders (b) The commander of each other or- shall also advise the following officers ganization of units of the operating and officials located within the area forces of the Navy or marine corps, or encompassed by the command con- organization of units of shore activi- cerning their assumption of command. ties, shall have the title ‘‘Com- (1) Senior commanders of other mander,’’ ‘‘Commandant,’’ ‘‘Com- United States armed services; manding General’’ or other appropriate (2) Officials of other federal agencies; title. The name of the organization and under the command of such an officer (3) Officials of foreign governments. shall be added to form his or her official title. § 700.704 Readiness. § 700.702 Responsibility and authority Commanders shall take all prac- of commanders. ticable steps to maintain their com- (a) Commanders shall be responsible mands in a state of readiness to per- for the satisfactory accomplishment of form their missions. In conformity the mission and duties assigned to with the orders and policies of higher their commands. Their authority shall authority, they shall: be commensurate with their respon- (a) Organize the forces and resources sibilities. Normally, commanders shall under their command and assign duties exercise authority through their imme- to their principal subordinate com- diate subordinate commanders, but 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 miral normally shall be a vice admiral political and military aspects of the or a rear admiral. The officer detailed national and international situation; as chief of staff and aide to a vice ad- (e) Make, or cause to be made, necessary 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 headquarters; pertaining to that work. All persons (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 command. mander.

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ADMINISTRATION AND DISCIPLINE § 700.723 Administration and discipline: 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 request the Judge Advocate general to § 700.721 Administration and discipline: Staff based ashore. obtain authorization from the Sec- retary of the Navy. When a staff is based ashore, the en- SUBPART H—THE COMMANDING OFFICER listed persons serving with the staff COMMANDING OFFICERS IN GENERAL shall, when practicable, be assigned to an appropriated activity for purposes § 700.801 Applicability. of administration and discipline. The In addition to commanding officers, staff officers may be similarly as- the provisions of this chapter shall signed. Members of a staff assigned for apply, where pertinent, to aircraft any purpose to a command or activity commanders, officers in charge (includ- shall conform in matters of general dis- ing warrant officers and petty officers cipline to the internal regulations and when so detailed) and those persons routine of that command or activity. standing the command duty.

§ 700.722 Administration and dis- § 700.802 Responsibility. cipline: Staff unassigned to an administrative command. (a) The responsibility of the com- (a) When it is not practicable to as- manding officer for his or her com- sign enlisted persons serving with the mand is absolute, except when, and to staff of a commander to an established the extent, relieved therefrom by com- activity for administration and dis- petent authority, or as provided other- cipline, the commander may designate wise in these regulations. The author- an officer of the staff to act as the ity of the commanding officer is com- commanding officer of such persons mensurate with his or her responsi- and shall notify the Judge Advocate bility. While the commanding officer General and the Commandant of the may, at his or her discretion, and when Marine Corps, or the Chief of Naval not contrary to law or regulations, del- Personnel, as appropriate, of such ac- egate authority to subordinates for the tion. execution of details, such delegation of authority shall in no way relieve the (b) If the designating commander de- commanding officer of his or her con- sires the commanding officer of staff tinued responsibility for the safety, enlisted personnel to possess authority well-being, and efficiency of the entire to convene courts-martial, the com- command. mander should request the Judge Advo- cate General to obtain such authorization from the Secretary of the Navy.

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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 functions 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 regulations 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 governments, 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- COMMANDING OFFICERS AFLOAT able funding arrangements have been made. § 700.840 Unauthorized persons on (d) Work, facilities, supplies, or serv- board. ices furnished non-appropriated fund The commanding officer shall satisfy activities classified as instrumental- him or herself that there is no unau- ities of the United States in the Navy thorized person on board before pro- Comptroller Manual shall be funded in ceeding to sea or commencing a flight. accordance with regulations of the Comptroller of the Navy. § 700.841 Control of passengers. (e) Supplies or services may be furnished 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 seamen. 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 promulgated 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 officer, 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 inspections. themselves that the passenger clearance 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 immigration 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 NAVAL STA- leave the dock clears the sill, and the TIONS AND SHIPYARDS ship is pointed fair for leaving the drydock, when the ship’s commanding offi- § 700.871 Responsibility for safety of ships and craft at a naval station or cer shall assume responsibility for the shipyard. safety and control of the ship. (e) When a naval ship is to be (a) The commanding officer of a 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 other person designated for the purpose (a) The commanding officer of a ship shall be in direct charge of such move- in drydock shall be responsible for ef- ment, and all persons on board shall fecting adequate closure, during such cooperate with and assist the pilot as periods as they will be unattended, of necessary. Responsibility for such ac- all openings in the ship’s bottom upon tions in a private shipyard will be as- which no work is being undertaken by signed by contract to the contractor. the docking activity. The commanding (d) When a ship operating under her officer of the docking activity shall be own power is being drydocked, the responsible for the closing, at the end commanding officer shall be fully re- of working hours, of all valves and sponsible for the safety of his ship other openings in the ship’s bottom until the extremity of the ship first to upon which work is being undertaken enter the drydock reaches the dock sill by the docking activity, when such and the ship is pointed fair for entering closing is practicable. the drydock. The docking officer shall (b) Prior to undocking, the com- then take charge and complete the manding officer of a ship shall report docking, remaining in charge until the to the docking officer any material ship has been properly landed, bilge changes in the amount and location of blocks hauled, and the dock pumped weights on board which have been down. In undocking, the docking offi- made by the ship’s force while in dock, cer shall assume charge when flooding and shall ensure, and so report, that all the dock preparatory to undocking is sea valves and other openings in the started, and shall remain in charge ship’s bottom are properly closed. The until the extremity of the ship last to level of water in the dock shall not be

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permitted to rise above the keel blocks quently thereafter, in order to keep prior to receipt of this report. The him or herself informed of the state of above valves and openings shall be her preparation for service. If, during tended during flooding of the dock. the course of these inspections he or (c) When a ship or craft, not in com- she notes an unsafe or potentially un- mission, is in a naval drydock, the pro- safe condition, he or she shall report visions of this article shall apply, ex- such fact to the commander of the cept that the commanding officer of naval shipyard or the supervisor of the docking activity or his representa- shipbuilding and to his or her superior tive shall act in the capacity of the for resolution; commanding officer of the ship or (3) Keep him or herself informed as to craft. the progress of the work being done, in- (d) When a naval ship or craft is in cluding tests of equipment, and make drydock in a private shipyard, respon- such recommendations to the com- sibility for actions normally assigned mander of the naval shipyard or the su- by the commanding officer of the dock- pervisor of shipbuilding as he or her ing activity will be assigned by contract to the contractor. she deems appropriate; (4) Ensure that requisitions are sub- § 700.873 Inspection incident to committed for articles to outfit the ship missioning of ships. 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- SPECIAL CIRCUMSTANCES/PROSPECTIVE COM- er condition to be commissioned at the MANDING OFFICERS time the commander of the naval ship- § 700.880 Duties of the prospective yard or the supervisor of shipbuilding commanding officer of a ship. signifies his intention of transferring the ship to the prospective com- (a) Except as may be prescribed by manding officer, he or she shall report the Chief of Naval Operations, the pro- that conclusion with his reasons there- spective commanding officer of a ship for, in writing, to the commander of not yet commissioned shall have no independent authority over the prepa- the naval shipyard or the supervisor of ration of the ship for service by virtue shipbuilding and to the appropriate of his assignment to such duty, until higher authority. the ship is commissioned and placed (c) If the ship is elsewhere than at a under his or her command. The pro- naval shipyard, the relationship be- spective commanding officer shall: tween the prospective commanding of- (1) Procure from the commander of ficer and the supervisor of ship- the naval shipyard or the supervisor of building, or other appropriate official, shipbuilding the general arrangement shall be the same as that between the plans of the ship, and all pertinent in- prospective commanding officer and formation relative to the general con- the commander of a naval shipyard as dition of the ship and the work being specified in this article. undertaken on the hull, machinery and (d) The Chief of Naval Operations equipment, upon reporting for duty; shall be responsible for providing the (2) Inspect the ship as soon after re- commanding officer or prospective porting for duty as practicable, and fre- commanding officer of a naval nuclear

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powered ship with the authority and ficer of the Marine Corps present with direction necessary to carry out his or respect to those units of the Marine her responsibilities. Corps, including Navy personnel at- SUBPART I—THE SENIOR OFFICER PRESENT tached, which are in the locality and CONTENTS not under the authority of the senior officer present. § 700.901 The senior officer present. Unless some other officer has been so § 700.922 Shore patrol. designated by competent authority, (a) When liberty is granted to any the ‘‘senior officer present’’ is the sen- considerable number of persons, except ior line officer of the Navy on active in an area that can absorb them with- duty, eligible for command at sea, who out danger of disturbance or disorder, is present and in command of any part 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- All officers of the line of the Navy, viding assistance to military personnel including Naval Reserve, on active in relations with civil courts and po- duty, except those designated for the lice, arranging for release of service performance of engineering, aero- personnel from civil authorities to the nautical engineering or special duties, parent command, and providing other and except those limited duty officers services that favorably influence dis- who are not authorized to perform all cipline and morale. deck duties afloat, are eligible for com- (b) A patrol shall not be landed in mand at sea. any foreign port without first obtain- § 700.903 Authority and responsibility. ing the consent of the proper local officials. Tact must be used in requesting At all times and places not excluded permission; and, unless it is given will- in these regulations, or in orders from ingly and cordially, the patrol shall competent authority, the senior officer present shall assume command and di- not be landed. If consent cannot be ob- rect the movements and efforts of all tained, the size of liberty parties shall persons in the Department of the Navy be held to such limits as may be nec- present, when, in his or her judgment, essary to render disturbances unlikely. the exercise of authority for the pur- (c) Officers and enlisted personnel on pose of cooperation or otherwise is nec- patrol duty in a foreign country nor- essary. The senior officer present shall mally should not be armed. In the exercise this authority in a manner United States, officers and men may be consistent with the operational com- armed as prescribed by the senior offi- mand responsibility vested in the com- cer present. manders of unified or specified com- (d) No officer or enlisted person who mands. is a member of the shore patrol or beach guard, or is assigned in support § 700.904 Authority of senior officer of thereof, shall partake of or indulge in the Marine Corps present. any form of intoxicating beverage or The authority and responsibility of the senior officer present are also conferred upon the senior commanding of-

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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 directed 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 sonnel embarked, or when placed on most expeditious means of all action duty by such officer. taken pursuant to paragraphs (a)(1)(i) (3) When senior officer at the scene of and (a)(1)(ii) of this section, as well as a riot or other emergency, or when the attendant circumstances. Tele- placed on duty by such officer. phone or voice communications will be used where possible, but must be con- § 700.1026 Authority of an officer who firmed as soon as possible with an im- succeeds to command. mediate precedence message, informa- (a) An officer who succeeds to com- tion to the Secretary of State (for ac- mand due to incapacity, death, depar- tions taken pursuant to paragraphs ture on leave, detachment without re- (a)(2)(i) and (a)(2)(v) of this section, lief or absence due to orders from com- also make the appropriate American petent authority of the officer detailed Embassy or Consular Office an infor- to command, has the same authority mation addressee). If communication and responsibility as the officer whom by telephone or voice is not possible, he or she succeeds. notification will be effected by an im- (b) An officer who succeeds to com- mediate precedence message, as demand during the temporary absence of scribed above. The Chief of Naval Oper- the commanding officer shall make no ations or Commandant of the Marine changes in the existing organization, Corps will cause the Secretary of the and shall endeavor to have the routine Navy and the Deputy Director for Op- and other affairs of the command car- erations of the National Military Com- ried on in the usual manner. mand Center to be notified without (c) When an officer temporarily suc- delay. ceeding to command signs official cor- (b) Personnel of the Department of respondence, the word ‘‘Acting’’ shall the Navy shall neither directly nor in- appear below his or her signature. directly invite persons to seek asylum or temporary refuge. § 700.1038 Authority of a sentry. SUBPART J—PRECEDENCE, AUTHORITY AND COMMAND A sentry, within the limits stated in AUTHORITY his or her orders, has authority over all persons on his or her post. § 700.1020 Exercise of authority. DETAIL TO DUTY

(a) All persons in the naval service on § 700.1052 Orders to active service. active service, and those on the retired list with pay, and transferred members (a) No person who is on leave of ab- of the Fleet Reserve and the Fleet Ma- sence or not on active service shall be rine Corps Reserve, are at all times ordered into active service or on duty subject to naval authority. While on without permission of the Com- active service they may, if not on leave mandant of the Marine Corps, or the of absence except as noted below, on Chief of Naval Personnel, as appro- the sick list, taken into custody, under priate, except: arrest, suspended from duty, in con- (1) In the case of a person on leave of finement or otherwise incapable of dis- absence, by the officer who granted the charging their duties, exercise author- leave or a superior, or ity over all persons who are subordi- (2) By the senior officer present on a nated to them. foreign station. (b) A person in the naval service, al- (b) In the event that the senior offi- though on leave, may exercise author- cer present of a foreign station issues ity: any orders as contemplated by this ar- (1) When in a naval ship or aircraft ticle, he or she shall report the facts, and placed on duty by the commanding including the reasons for issuing such officer or aircraft commander. orders, to the Commandant of the Ma- (2) When in a ship or aircraft of the rine Corps or the Chief of Naval Per- armed services of the United States, sonnel, without delay. other than a naval ship or aircraft, as (c) Retired officers of the Navy and the commanding officer of naval per- 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 § 700.1121 Disclosure, publication and officer of the Marine Corps. security of official information. (a) No person in the Department of § 700.1058 Command of a submarine. the Navy shall convey or disclose by The officer detailed to command a oral or written communications, publi- submarine shall be an officer of the cation, graphic (including photo- line in the Navy, eligible for command graphic) or other means, any classified at sea and qualified for command of information except as provided in di- submarines. rectives governing the release of such information. Additionally, no person in § 700.1059 Command of a staff corps the Department of the Navy shall com- activity. municate or otherwise deal with for- Officers in a staff corps shall be de- eign entities, even on an unclassified tailed to command only such activities basis, when this would commit the De- as are appropriate to their corps. partment of the Navy to disclose clas- SUBPART K—GENERAL REGULATIONS sified military information except as STANDARDS OF CONDUCT may be required in that person’s official duties and only after coordination § 700.1101 Demand for court-martial. with and approval by a release authority 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 herself or on any other person in the required by his or her official duties, naval service. any information concerning the De- 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- Except as necessary during contract tion might be of possible assistance to administration to determine specifica- a foreign power; nor shall any person in tion or other compliance, no person in the Department of the Navy make any the Department of the Navy, in his or public speech or permit publication of her official capacity, shall endorse or an article written by or for that person express an opinion of approval or dis- which is prejudicial to the interests of approval of any commercial product or the United States. The regulations con- process. cerned with the release of information to the public through any media will be § 700.1120 Personal privacy and rights as prescribed by the Secretary of the of individuals regarding their per- Navy. sonal records. (c) No person in the Department of (a) Except as specifically provided in the Navy shall disclose any informa- this section, maintenance of personal tion whatever, whether classified or records of individuals, and the release unclassified, or whether obtained from of those records, shall be in accordance official records or within the knowledge 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 of the Navy. United States. The prohibitions pre- (b) Except as specifically provided in scribed by the first sentence of this this section, the release of depart- paragraph are not applicable to an offi- mental records to private parties shall cer or employee of the United States be in accordance with the provisions of who is acting in the proper course of, the Freedom of Information Act and di- and within the scope of, his or her offi- rectives issued by the Secretary of the cial duties, provided that the disclo- Navy. sure of such information is otherwise OFFICIAL RECORDS 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 relation 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 response 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 implementing 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 requests 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 specific 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 expenditure 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 requester 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 inspection 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 replacement 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 republic, 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 exempt 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 retained 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 proscribe 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 rein 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 requests 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 reviewing 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 responsive information need not be requester. 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 recommendations 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 discretionary 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 adequacy 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 response 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 activities 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 activities 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 activity. 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 response 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, intelligence, 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 redelegated 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 request 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 representations. 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 classified 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 continuing 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 authority 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 disin 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, investigation, 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 interest 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 exclude 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 communication. § 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 infor 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 independent 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 exemption. The concept that apparently harmless 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 research 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 requester 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, private 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 recipient 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 without 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 forwarding 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 intended 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 portion 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 activities 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 dition 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 processing 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 demand 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 inferred 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 available 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 additional association or relationship that § 701.58 In-depth analysis of FOIA exemptions. 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, regulation 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 containing 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 commercial 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 contest 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 compartment 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 unnecessary 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 orders—opinions (including concurring § 701.65 Availability, public inspection, and dissenting opinions) which are and indexing of other documents affecting 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 supplements 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 opin 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 involved, 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 the Reserve Components), individuals tion required by 5 U.S.C. 552 (1988) as 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 behalf. 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 comment (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 configuration (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 practicable, 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 determinations; 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 reten 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 identifying 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 temporarily 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 reports 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 acquired 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 employment, 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 described 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 retain 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 individual 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. (2) No exemption may be established for a system of records until the sys- (a) Using exemptions. No system of tem itself has been established by pub- records is automatically exempt from lishing a notice in the FEDERAL REG- all provisions of 5 U.S.C. 552a. A system ISTER, at least 30 days prior to the ef- of records is exempt from only those fective date, describing the system. provisions of 5 U.S.C. 552a that are This allows interested persons an op- identified specifically in the exemption portunity to comment. An exemption rule for the system. Subpart G of this may not be used to deny an individual part contains the systems designated access to information that he or she as exempt, the types of exemptions can obtain under Secretary of the Navy claimed, the authority and reasons for Instruction 5720.42F, ‘‘Department of invoking the exemptions and the provi- the Navy Freedom of Information Act sions of 5 U.S.C. 552a from which each Program.’’ system has been exempt. Exemptions are discretionary on the part of De- (d) Exemption for classified material. partment of the Navy and are not effec- All systems of records maintained by tive until published as a final rule in the Department of the Navy shall be exempt under section (k)(1) of 5 U.S.C. the FEDERAL REGISTER. The naval activity maintaining the system of 552a, to the extent that the systems records shall make a determination contains any information properly that the system is one for which an ex- classified under E.O. 12958 and that is emption may be established and then required by that E.O. to be kept secret propose an exemption rule for the sys- in the interest of national defense or tem. Submit the proposal to CNO foreign policy. This exemption is appli- (N09B30) for approval and publication cable to parts of all systems of records in the FEDERAL REGISTER. including those not otherwise specifically designated for exemptions herein (b) Types of exemptions. There are two types of exemptions permitted by 5 which contain isolated items of prop- U.S.C. 552a. erly classified information. (1) General exemptions. Those that au- NOTE: Department of the Navy Privacy Act thorize the exemption of a system of systems of records which contain classified records from all but specifically identi- information automatically qualify for a fied provisions of 5 U.S.C. 552a. (k)(1) exemption, without establishing an exemption rule. (2) Specific exemptions. Those that allow a system of records to be exempt (e) Exempt records in nonexempt sys- from only a few designated provisions tems. (1) An exemption rule applies to of 5 U.S.C. 552a. the system of records for which it was (c) Establishing exemptions. (1) 5 U.S.C. established. If a record from an exempt 552a authorizes the Secretary of the system is incorporated intentionally Navy to adopt rules designating eligi- into a system that has not been ex- ble systems of records as exempt from empt, the published notice and rules certain requirements. The Secretary of for the nonexempt system will apply to the Navy has delegated the CNO the record and it will not be exempt (N09B30) to make a determination that from any provisions of 5 U.S.C. 552a. 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

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not be exempt from any provisions of 5 (A) Investigative records maintained U.S.C. 552a. by a naval activity having no criminal (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 for a system of records maintained by section (j)(1) of 5 U.S.C. 552a. a criminal law enforcement activity (2) Law enforcement. (i) The general cannot protect law enforcement exemption provided by subsection (j)(2) records incorporated into a nonexempt of 5 U.S.C. 552a may be established to system of records or any system of protect criminal law enforcement records maintained by an activity not records maintained by Department of principally tasked with enforcing the Navy. criminal laws. All system managers, (ii) To be eligible for the (j)(2) exemp- therefore, are cautioned to comply tion, the system of records must be strictly with Department of the Navy maintained by an element that per- regulations or instructions prohibiting forms, as one of its principal functions, or limiting the incorporation of crimi- the enforcement of criminal laws. The nal law enforcement records into sys- Naval Investigative Service, Naval In- tems other than those maintained by spector General, and military police criminal law enforcement activities. activities qualify for this exemption. (g) Specific exemptions. Specific ex- (iii) Criminal law enforcement in- emptions permit certain categories of cludes police efforts to detect, prevent, records to be exempted from specific control, or reduce crime, or to appre- provisions of 5 U.S.C. 552a. Subsections hend criminals, and the activities of (k)(1)–(k)(7) of 5 U.S.C. 552a allow ex- prosecution, court, correctional, proba- emptions for seven categories of tion, pardon, or parole authorities. records. To be eligible for a specific ex- (iv) Information that may be pro- emption, the record must meet the cor- tected under the (j)(2) exemption in- responding criteria. cludes: NOTE: Department of the Navy Privacy Act (A) Information compiled for the pur- systems of records which contain classified pose of identifying criminal offenders information automatically qualify for a (k)(1) exemption, without an established ex- and alleged criminal offenders con- emption rule. sisting of only identifying data and no- (1) (k)(1) exemption: Information prop- tations of arrests; the nature and dis- erly classified under Secretary of the position of criminal charges; and sen- Navy Instruction 5720.42F, ‘‘Depart- tencing, confinement, release, parole, ment of the Navy Freedom of Informa- and probation status; tion Act Program’’ and E.O. 12958, in (B) Information compiled for the pur- the interest of national defense or for- pose of a criminal investigation, in- eign policy. cluding reports of informants and in- (2) (k)(2) exemption: Investigatory investigators, and associated with an formation (other than that information identifiable individual; and within the scope of paragraph (f)(2) of (C) Reports identifiable to an indi- this section) compiled for law enforce- vidual, compiled at any stage of the en- ment purposes. If maintaining the in- forcement process, from arrest, appre- formation causes an individual to be hension, indictment, or preferral of ineligible for or denied any right, ben- charges through final release from the efit, or privilege that he or she would supervision that resulted from the otherwise be eligible for or entitled to commission of a crime. under Federal law, then he or she shall (v) The (j)(2) exemption does not be given access to the information, ex- apply to: cept for the information that would

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identify a confidential source (see § 701.114 Enforcement actions. paragraph (h) of this section, ‘‘con- (a) Administrative remedies. An indi- fidential source’’). The (k)(2) exemp- vidual who alleges he or she has been tion, when established, allows limited affected adversely by a naval activity’s protection on investigative records violation of 5 U.S.C. 552a or this sub- maintained for use in personnel and ad- part and subpart G of this part shall be ministrative actions. permitted to seek relief from SECNAV (3) (k)(3) exemption: Records main- through proper administrative chan- tained in connection with providing nels. protective services to the President of (b) Civil court actions. After exhaust- the United States and other individuals ing all administrative remedies, an in- under 18 U.S.C. 3056. dividual may file suit in Federal court (4) (k)(4) exemption: Records required against a naval activity for any of the by Federal law to be maintained and following acts: used solely as statistical records that (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 individual’s request for review of the initial except as provided by 13 U.S.C. 8. denial of an amendment or, after re- (5) (k)(5) exemption: Investigatory ma- view, wrongfully refuses to amend the terial compiled solely for the purpose record; of determining suitability, eligibility, (2) Denial of access. The activity or qualifications for Federal civilian wrongfully refuses to allow the indi- employment, military service, Federal vidual to review the record or wrong- contracts, or access to classified infor- fully denies his or her request for a mation, but only to the extent such copy of the record; material would reveal the identity of a (3) Failure to meet recordkeeping stand- confidential source (see paragraph (h) ards. The activity fails to maintain an of this section, ‘‘confidential source’’). individual’s record with the accuracy, This exemption allows protection of relevance, timeliness, and complete- confidential sources in background in- ness necessary to assure fairness in any vestigations, employment inquiries, determination about the individual’s and similar inquiries used in personnel rights, benefits, or privileges and, in screening to determine suitability, eli- 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. (c) Criminal penalties. Subsection (i)(1) fairness of the testing or examination of 5 U.S.C. 552a authorizes three crimi- process. nal penalties against individuals for (7) (k)(7) exemption: Evaluation mate- violations of its provisions. All three rial used to determine potential for are misdemeanors punishable by fines promotion in the military services, but of $5,000. only to the extent that disclosure (1) Wrongful disclosure. Any member would reveal the identity of a confiden- or employee of Department of the Navy tial source (see paragraph (h) of this who, by virtue of his or her employ- section, ‘‘confidential source’’.) ment or position, has possession of or (h) Confidential source. Promises of access to records and willfully makes a confidentiality are to be given on 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 matching 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 qualifications 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 material would reveal the identity of a con- rial would reveal the identity of a confidential 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 promotion 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 qualification which could compromise the nations, 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 connection 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) [Reserved] (3) Authority: 5 U.S.C. 552a(k)(1) and (q) System identifier and name: (k)(5). (1) N05800–1, Legal Office Litigation/ (4) Reasons: Correspondence Files. (i) Granting individuals access to in- (2) Exemption: formation collected and maintained in (i) Information specifically author- this system of records could result in ized to be classified under E.O. 12958, as the disclosure of classified material; implemented by DoD 5200.1–R, may be and jeopardize the safety of inform- exempt pursuant to 5 U.S.C. 552a(k)(1). ants, and their families. Further, the (ii) Investigatory material compiled integrity of the system must be en- for law enforcement purposes may be sured so that complete and accurate exempt pursuant to 5 U.S.C. 552a(k)(2). records of all adjudications are main- However, if an individual is denied any

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right, privilege, or benefit for which he as exhibits, decisional memorandum would otherwise be entitled by Federal and other case-related papers. Adminis- law or for which he would otherwise be trative due process could not be eligible, as a result of the maintenance achieved by the ‘‘exparte’’ correction of such information, the individual will of such materials. be provided access to such information (ii) Subsection (e)(1) because it is not except to the extent that disclosure possible in all instances to determine would reveal the identity of a confiden- relevancy or necessity of specific infor- tial source. mation in the early stages of case de- (iii) Investigatory material compiled velopment. What appeared relevant and solely for the purpose of determining necessary when collected, ultimately suitability, eligibility, or qualifica- may be deemed unnecessary upon as- tions for federal civilian employment, sessment in the context of devising military service, federal contracts, or legal strategy. Information collected access to classified information may be during civil litigation investigations exempt pursuant to 5 U.S.C. 552a(k)(5), which is not used during subject case is but only to the extent that such mate- often retained to provide leads in other rial would reveal the identity of a con- cases or to establish patterns of activ- fidential source. ity. (iv) Testing or examination material (iii) Subsections (f)(2), (3), and (4) be- used solely to determine individual cause this record system is exempt qualifications for appointment or pro- from the individual access provisions motion in the Federal service may be of subsection (d). exempt pursuant to 5 U.S.C. 552a(k)(6), (r) System identifier and name: if the disclosure would compromise the (1) N01000–5, Naval Clemency and Pa- objectivity or fairness of the test or ex- role Board Files. amination process. (2) Exemption: (v) Evaluation material used to de- (i) Parts of this system may be ex- termine potential for promotion in the empt pursuant to 5 U.S.C. 552a(j)(2) if Military Services may be exempt pur- the information is compiled and main- suant to 5 U.S.C. 552a(k)(7), but only to tained by a component of the agency the extent that the disclosure of such which performs as its principle func- material would reveal the identity of a tion any activity pertaining to the en- confidential source. forcement of criminal laws. (vi) Portions of this system of (ii) Portions of this system of records records are exempt from the following are exempt from the following sub- subsections of the Privacy Act: (d), sections of the Privacy Act: (c)(4), (d), (e)(1), and (f)(2), (3), and (4). (e)(4)(G), and (f). (3) Authority: 5 U.S.C. 552a(k)(1), (3) Authority: 5 U.S.C. 552a(j)(2). (k)(2), (k)(5), (k)(6), and (k)(7). (4) Reasons: (4) Reasons: (i) Granting individuals access to (i) Subsection (d) because granting records maintained by this Board could individuals access to information relat- interfere with internal processes by ing to the preparation and conduct of which Board personnel are able to for- litigation would impair the develop- mulate decisions and policies with re- ment and implementation of legal gard to clemency and parole in cases strategy. Accordingly, such records are involving naval prisoners and other 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 remit 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

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system of records from the require- could jeopardize the safety and well ments of the other cited provisions. being of parents and their children. (s) System identifier and name: (ii) Exempted portions of this system (1) N06320–2, Family Advocacy Program also contain information considered System. relevant and necessary to make a de- (2) Exemption: termination as to qualifications, eligi- (i) Investigatory material compiled bility, or suitability for Federal em- for law enforcement purposes may be ployment and Federal contracts, and exempt pursuant to 5 U.S.C. 552a(k)(2). that was obtained by providing an ex- However, if an individual is denied any press or implied promise to the source right, privilege, or benefit for which he that his or her identity would not be would otherwise be entitled by Federal revealed to the subject of the record. law or for which he would otherwise be (t) System identifier and name: (1) N12930–1, Human Resources Group eligible, as a result of the maintenance Personnel Records. of such information, the individual will (2) Exemption: be provided access to such information (i) Investigatory material compiled except to the extent that disclosure solely for the purpose of determining would reveal the identity of a confiden- suitability, eligibility, or qualifica- tial source. tions for federal civilian employment, (ii) Investigatory material compiled military service, federal contracts, or solely for the purpose of determining access to classified information may be suitability, eligibility, or qualifica- exempt pursuant to 5 U.S.C. 552a(k)(5), tions for federal civilian employment, but only to the extent that such mate- military service, federal contracts, or rial would reveal the identity of a con- access to classified information may be fidential source. exempt pursuant to 5 U.S.C. 552a(k)(5), (ii) Testing or examination material but only to the extent that such mate- used solely to determine individual rial would reveal the identity of a con- qualifications for appointment or pro- fidential source. motion in the Federal service may be (iii) Portions of this system of exempt pursuant to 5 U.S.C. 552a(k)(6), records are exempt from the following if the disclosure would compromise the subsections of the Privacy Act: (c)(3) objectivity or fairness of the test or ex- and (d). amination process. (3) Authority: 5 U.S.C. 552a(k)(2) and (iii) Portions of this system of (k)(5). records are exempt from the following (4) Reasons: subsections of the Privacy Act: (d), (i) Exemption is needed in order to (e)(4)(G) and (H), and (f). encourage persons having knowledge of (3) Authority: 5 U.S.C. 552a(k)(5) and abusive or neglectful acts toward chil- (k)(6). dren to report such information, and to (4) Reasons: protect such sources from embarrass- (i) Exempted portions of this system ment or recriminations, as well as to contain information considered rel- protect their right to privacy. It is es- evant and necessary to make a deter- sential that the identities of all indi- mination as to qualifications, eligi- viduals who furnish information under bility, or suitability for Federal em- an express promise of confidentiality ployment, and was obtained by pro- 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.

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(u) System identifier and name: N05813– inappropriate because the trial/govern- 4, Trial/Government Counsel Files. ment counsel files contain official (1) Exemption. Parts of this system records including transcripts, court or- may be exempt pursuant to 5 U.S.C. ders, and investigatory materials such 552a(j)(2) if the information is compiled as exhibits, decisional memorandum and maintained by a component of the and other case-related papers. Disclo- agency which performs as its principle sure of this information could result in function any activity pertaining to the the concealment, alteration or destruc- enforcement of criminal laws. Portions tion of evidence, the identification of of this system of records that may be offenders or alleged offenders, nature exempt pursuant to subsection 5 U.S.C. and disposition of charges; and jeop- 552a(j)(2) are (c)(3), (c)(4), (d), (e)(1), ardize the safety and well-being of in- (e)(2), (e)(3), (e)(5), (e)(4)(G), (H), and (I), formants, witnesses and their families, (e)(8), (f), and (g). and law enforcement personnel and (2) Exemption. Information specifi- their families. Disclosure of this infor- cally authorized to be classified under mation could also reveal and render in- E.O. 12958, as implemented by DoD effective investigation techniques, 5200.1-R, may be exempt pursuant to 5 sources, and methods used by law en- U.S.C. 552a(k)(1). forcement personnel, and could result (3) Exemption. Investigatory material in the invasion of privacy of individ- compiled for law enforcement purposes uals only incidentally related to an in- may be exempt pursuant to 5 U.S.C. vestigation. 552a(k)(2). However, if an individual is (iii) From subsection (e)(1) because it denied any right, privilege, or benefit is not always possible in all instances for which he would otherwise be enti- to determine relevancy or necessity of tled by Federal law or for which he specific information in the early stages would otherwise be eligible, as a result of case development. Information col- of the maintenance of such informa- lected during criminal investigations tion, the individual will be provided ac- and prosecutions and not used during cess to such information except to the the subject case is often retained to extent that disclosure would reveal the provide leads in other cases. identity of a confidential source. Por- (iv) From subsection (e)(2) because in tions of this system of records that criminal or other law enforcement in- may be exempt pursuant to subsections vestigations, the requirement that in- 5 U.S.C. 552a(k)(1) and (k)(2) are (c)(3), formation be collected to the greatest (d), (e)(1), (e)(4)(G), (H), and (I), and (f). extent practicable from the subject in- (4) Authority: 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2). dividual would alert the subject as to (5) Reason: (i) From subsection (c)(3) the nature or existence of an investiga- because release of accounting of disclo- tion, presenting a serious impediment sure could place the subject of an in- to law enforcement investigations. vestigation on notice that he/she is (v) From subsection (e)(3) because under investigation and provide him/ compliance would constitute a serious her with significant information con- impediment to law enforcement in that cerning the nature of the investigation, it could compromise the existence of a resulting in a serious impediment to confidential investigation or reveal the law enforcement investigations. identity of witnesses or confidential in- (ii) From subsections (c)(4), (d), formants. (e)(4)(G), and (e)(4)(H) because granting (vi) From subsection (e)(4)(I) because individuals access to information col- the identity of specific sources must be lected and maintained for purposes re- withheld in order to protect the con- lating to the enforcement of laws could fidentiality of the sources of criminal interfere with proper investigations and other law enforcement informa- and orderly administration of justice. tion. This exemption is further nec- Granting individuals access to informa- essary to protect the privacy and phys- tion relating to the preparation and ical safety of witnesses and informants. conduct of criminal prosecution would (vii) From subsection (e)(5) because impair the development and implemen- in the collection of information for law tation of legal strategy. Amendment is enforcement purposes it is impossible

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to determine in advance what informa- During the processing of a Privacy tion is accurate, relevant, timely, and Act request (which may include access complete. With the passage of time, requests, amendment requests, and re- seemingly irrelevant or untimely infor- quests for review for initial denials of mation may acquire new significance such requests), exempt materials from as further investigation brings new de- other systems of records may in turn tails to light and the accuracy of such become part of the case record in this information can only be determined in system. To the extent that copies of a court of law. The restrictions of sub- exempt records from those ‘other’ sys- section (e)(5) would restrict the ability tems of records are entered into this of trained investigators and intel- system, the Department of the Navy ligence analysts to exercise their judg- hereby claims the same exemptions for ment in reporting on investigations the records from those ‘other’ systems and impede the development of intel- that are entered into this system, as ligence necessary for effective law en- claimed for the original primary sys- forcement. tem of which they are a part. (viii) From subsection (e)(8) because (3) Authority compliance would provide an impedi- 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), ment to law enforcement by interfering (k)(4), (k)(5), (k)(6), and (k)(7). with the ability to issue warrants or (4) Records are only exempt from per- subpoenas and by revealing investiga- tinent provisions of 5 U.S.C. 552a to the tive techniques, procedures, or evi- extent such provisions have been iden- dence. tified and an exemption claimed for the (ix) From subsection (f) and (g) be- original record and the purposes under- cause this record system is exempt lying the exemption for the original from the individual access provisions record still pertain to the record which of subsection (d). is now contained in this system of (x) Consistent with the legislative records. In general, the exemptions purpose of the Privacy Act of 1974, the were claimed in order to protect prop- Department of the Navy will grant ac- erly classified information relating to cess to nonexempt material in the national defense and foreign policy, to records being maintained. Disclosure avoid interference during the conduct will be governed by the Department of of criminal, civil, or administrative ac- the Navy’s Privacy Regulation, but tions or investigations, to ensure pro- will be limited to the extent that the tective services provided the President identity of confidential sources will and others are not compromised, to not be compromised; subjects of an in- protect the identity of confidential vestigation of an actual or potential sources incident to Federal employ- criminal violation will not be alerted ment, military service, contract, and to the investigation; the physical safe- security clearance determinations, and ty of witnesses, informants and law en- to preserve the confidentiality and in- forcement personnel will not be endan- tegrity of Federal evaluation mate- gered, the privacy of third parties will rials. The exemption rule for the origi- not be violated; and that the disclosure nal records will identify the specific would not otherwise impede effective reasons why the records are exempt law enforcement. Whenever possible, from specific provisions of 5 U.S.C. information of the above nature will be 552a. deleted from the requested documents (w) System identifier and name and the balance made available. The (1) N05720–1, FOIA Request Files and controlling principle behind this lim- Tracking System ited access is to allow disclosures ex- (2) Exemption cept those indicated above. The deci- During the processing of a Freedom sions to release information from these of Information Act request, exempt systems will be made on a case-by-case materials from other systems of basis. records may in turn become part of the (v) System identifier and name: case record in this system. To the ex- (1) N05211–1, Privacy Act Files and tent that copies of exempt records from Tracking System those ‘other’ systems of records are en- (2) Exemption tered into this system, the Department

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of the Navy hereby claims the same ex- (c)(4), (d), (e) (2) and (3), (e)(4)(G) emptions for the records from those through (I), (e)(5), (e)(8), (f), and (g). ‘other’ systems that are entered into (3) Authority: 5 U.S.C. 552a(j)(2). this system, as claimed for the original (4) Reasons: primary system of which they are a (i) Granting individuals access to in- part. formation collected and maintained by (3) Authority: these activities relating to the enforce- 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), ment of criminal laws could interfere (k)(4), (k)(5), (k)(6), and (k)(7). with orderly investigations, with the (4) Records are only exempt from per- orderly administration of justice, and tinent provisions of 5 U.S.C. 552a to the might enable suspects to avoid detec- extent such provisions have been iden- tion or apprehension. Disclosure of this tified and an exemption claimed for the information could result in the con- original record and the purposes under- cealment, destruction, or fabrication of lying the exemption for the original evidence, and jeopardize the safety and record still pertain to the record which well being of informants, witnesses and is now contained in this system of their families, and law enforcement records. In general, the exemptions personnel and their families. Disclo- were claimed in order to protect prop- sure of this information could also re- erly classified information relating to veal and render ineffectual investiga- national defense and foreign policy, to tive techniques, sources, and methods avoid interference during the conduct used by this component, and could re- of criminal, civil, or administrative ac- sult in the invasion of the privacy of tions or investigations, to ensure pro- individuals only incidentally related to tective services provided the President an investigation. The exemption of the and others are not compromised, to individual’s right of access to his or protect the identity of confidential her records, and the reasons therefore, sources incident to Federal employ- necessitate the exemption of this sys- ment, military service, contract, and tem of records from the requirements security clearance determinations, and of other cited provisions. to preserve the confidentiality and in- (ii) [Reserved] tegrity of Federal evaluation mate- (b) System identifier and name: rials. The exemption rule for the origi- (1) MIN00001, Personnel and Security nal records will identify the specific Eligibility and Access Information System. reasons why the records are exempt (2) Exemption: from specific provisions of 5 U.S.C. (i) Investigatory material compiled 552a. for law enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). [65 FR 31471, May 18, 2000, as amended at 65 However, if an individual is denied any FR 48170, Aug. 7, 2000; 65 FR 53171, Sept. 1, right, privilege, or benefit for which he 2000; 66 FR 54928, Oct. 31, 2001; 67 FR 30554, would otherwise be entitled by Federal May 7, 2002] law or for which he would otherwise be § 701.119 Exemptions for specific Ma- eligible, as a result of the maintenance rine Corps record systems. of such information, the individual will be provided access to such information (a) System identifier and name: except to the extent that disclosure (1) MMN00018, Base Security Incident would reveal the identity of a confiden- Reporting System. tial source. (2) Exemption: (ii) Records maintained in connec- (i) Parts of this system may be ex- tion with providing protective services empt pursuant to 5 U.S.C. 552a(j)(2) if to the President and other individuals the information is compiled and main- under 18 U.S.C. 3506, may be exempt tained by a component of the agency pursuant to 5 U.S.C. 552a(k)(3). which performs as its principle func- (iii) Investigatory material compiled tion any activity pertaining to the en- solely for the purpose of determining forcement of criminal laws. suitability, eligibility, or qualifica- (ii) Portions of this system of records tions for federal civilian employment, are exempt from the following sub- military service, federal contracts, or sections of the Privacy Act: (c)(3), access to classified information may be

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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 (iv) Portions of this system of correspondents or staff members of civilian 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. (i) Exempt portions of this system 705.21 Requests for Navy participation. contain information that has been 705.22 Relations with community groups. properly classified under E.O. 12958, 705.23 Guest cruises. and that is required to be kept secret 705.24 Exhibits. in the interest of national defense or 705.25 Navy Exhibit Center. foreign policy. 705.26 Exhibit availability report. (ii) Exempt portions of this system 705.27–705.28 [Reserved] 705.29 Navy Art Collection. also contain information considered 705.30 Aerospace Education Workshop. relevant and necessary to make a de- 705.31 USS Arizona Memorial, Pearl Harbor. termination as to qualifications, eligi- 705.32 Aviation events and parachute dem- bility, or suitability for Federal civil- onstrations. ian employment, military service, Fed- 705.33 Participation by Armed Forces bands, eral contracts, or access to classified, choral groups, and troops in the public compartmented, or otherwise sensitive domain. information, and was obtained by pro- 705.34 Other special events. viding an expressed or implied assur- 705.35 Armed Forces participation in events ance to the source that his or her iden- in the public domain. 705.36 Government transportation of civil- tity would not be revealed to the sub- ians for public affairs purposes. ject of the record. 705.37 Public affairs and public service (iii) Exempt portions of this system awards. further contain information that identifies sources whose confidentiality AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031. must be protected to ensure that the SOURCE: 41 FR 29101, July 15, 1976, unless privacy and physical safety of these otherwise noted. witnesses and informants are protected. § 705.1 Purpose. The regulations and rules in this part PART 705—PUBLIC AFFAIRS prescribe policies and procedures for REGULATIONS the Department of the Navy pertaining to public affairs practices. Sec. 705.1 Purpose. § 705.2 Chief of Information and the 705.2 Chief of Information and the Office of Office of Information (CHINFO). Information (CHINFO). (a) The Chief of Information is the di- 705.3 [Reserved] rect representative of the Secretary of 705.4 Communication directly with private the Navy and of the Chief of Naval Op- organizations and individuals. erations in all public affairs and inter- 705.5 Taking of photos on board naval ships, aircraft and installations by members of nal relations matters. As such, the the general public. Chief of Information has the authority 705.6 Releasing public information material to implement public affairs and inter- to the media. nal relations policies and to coordinate 705.7 Radio and television. Navy and Marine Corps public affairs 705.8 Motion pictures. and internal relations activities of mu- 705.9 Availability of motion pictures to ex- tual interest. ternal audiences. 705.10 Still photography. (b) The Chief of Information will 705.11 Supplying photographs and services keep Navy commands informed of De- to other than Navy and Marine Corps. partment of Defense policies and re- 705.12 Print media. quirements. No command within the

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Department of the Navy, except Head- (iv) Provide advice on Navy coopera- quarters, Marine Corps, will deal dition 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 inform normal audio-visual functions at formed of all operations and proposed the local level. plans and policies which have national (vi) Provide personnel and other as- or international (and in the case of sistance as appropriate, to special audio-visual material, regional) public Command Information Bureaus and affairs aspects. public information staffs of other naval (d) The Chief of Information heads activities as directed by the Chief of the Navy Office of Information, the Information. Navy Internal Relations Activity (vii) Advise the Chief of Information (NIRA), the Office of Information on current trends and significant prob- Branch Offices (NAVINFOs), the Navy lems relating to local media require- Public Affairs Center (NAVPACENs) ments. and the Fleet Home Town News Center (viii) Seek ways to support the long- (FHTNC). In addition, the Chief of In- range goals and immediate priorities of formation has responsibility (on behalf the Navy. of the Secretary of the Navy as Execu- (ix) Provide advice and assistance in tive Agent for the Department of De- the placement of news and feature ma- fense) for the High School News Serv- terials to the field activities of the ice and has operational control of the Navy Recruiting Command. U.S. Navy Band, Washington, DC. (x) Perform such other tasks as may (e) The Navy Office of Information be assigned by the Chief of Informa- Branch Offices (NAVINFOs) are located tion. in Atlanta, Boston, Chicago, Dallas, (2) Additionally, NAVINFO Los Ange- Los Angeles, and New York. As rep- les is the Navy representative for all resentatives of the Secretary of the appropriate liaison with motion pic- Navy, Chief of Naval Operations, and ture and network television offices in Chief of Information, the NAVINFOs the Hollywood area. Naval activities have a primary mission of providing di- will channel all requests for informa- rect liaison with local and regional tion or assistance from these media to mass communications media. NAVINFO Los Angeles, which will co- (1) The function of the NAVINFOs ordinate with CHINFO. are as follows: (3) Additionally, NAVINFO New York (i) Establish and maintain close per- is the Navy representative for all ap- sonal relationships with local tele- propriate liaison with television and vision, radio, film, publishing, and radio networks in the New York area other mass-media organizations includ- and with magazine and book publishers ing minority-group-oriented media. in that area. Requests for assistance (ii) Seek ways through these media originating from these media should be to inform the public about naval per- directed to NAVINFO New York, which sonnel and activities. will coordinate with CHINFO. (iii) Provide assistance to media or- (4) Except as specifically directed by ganizations and respond to their inter- CHINFO, the Branch Offices do not est in Navy programs, stories, and fea- have responsibility or authority for tures. In this regard, maintain infor- community relations or internal rela- mal liaison with various information tions. offices afloat and ashore in order to re- (5) Direct liaison between NAVINFOs spond to requests from local media rep- and Naval District public affairs of- resentatives, particularly those from fices, Navy recruiters and other naval inland areas, who desire to visit fleet activities afloat and ashore is encour- units or activities ashore. aged.

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(f) Areas covered by the respective (iv) Perform such other tasks as may offices are: 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 ries for dissemination to the media affairs responsibilities of the District through normal information channels. Commandants. (1) The following tasks are included among the functions of the [44 FR 6389, Feb. 1, 1979] NAVPACENs. (i) Produce written, audio and photo- § 705.3 [Reserved] graphic feature public information material about fleet and shore personnel, § 705.4 Communication directly with units and activities, as coordinated private organizations and individuals. with and approved for policy and concept by the respective fleet and shore (a) Questions from the public and re- commander concerned. quests from groups or individuals for (ii) Serve as public affairs emergency pamphlets, photos, biographies, histor- reaction teams/resource personnel re- ical matter, etc., must be promptly an- sponsive to the requirements of the swered. (32 CFR part 701, subparts A–D CNO and CHINFO, and when feasible refers.) and appropriate and as approved by (b) Assistance within the command’s CNO or CHINFO, serve as public affairs capabilities should (and in some cases, emergency reaction teams/resource must) be given. Where an established personnel in support of Fleet Com- channel for obtaining the item exists, manders. such as a publication stocked by the (iii) Develop feature material to sup- Superintendent of Documents (Govern- port the long range goals and the im- ment Printing Office), or photos, as ex- mediate priorities of the Navy. Direct plained in the subparagraph below, the liaison is authorized with the Navy Re- requester may be directed to it. Under cruiting Command, Recruiting Areas, some circumstances, a charge may be Recruiting Districts, and other Com- made. (Consult part 701 or the commanders as appropriate to achieve this mand’s Freedom of Information au- function. thority for details.) If a lengthy search,

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beyond the convenient manpower re- (2) When film exposed by civilian sources of the command, would be re- visitors or media representatives in quired, the requester may be offered sensitive areas is beyond the capability the opportunity of examining the ma- of the local command to process, it terial at the command instead of cop- may be forwarded to the Commanding ies being made. 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- (a) Methods of releasing information: eral public. (1) Release at the seat of government (1) Photos made within the last 10 and/or as approved by the Assistant years may be purchased from the Naval Secretary of Defense (Public Affairs). Photographic Center. Information on (i) Overall responsibility for release the conditions of sale can be obtained of information rests with the Assistant by writing to the Commanding Officer, Secretary of Defense (Public Affairs). Naval Photographic Center, Naval Sta- The Chief of Information is responsible tion, Washington, DC 20390. 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 described in paragraph (b) of this sec- § 705.5 Taking of photos on board tion, following. naval ships, aircraft and installations by members of the general (2) Releases by local commands: public. (i) News of purely local interest may (a) Visitors will not be allowed to be released by the command concerned. take photographic equipment on board Higher and coordinating authorities a naval ship or aircraft or into a naval (such as the District Commandant) will activity or to take photographs within be informed, when appropriate, that a naval jurisdiction unless specially the release has been made. authorized by the officer in command (ii) News of national or other wide in- or higher authority. terest may be released by a local com- (b) Guests of the Navy who wish to mand under the following cir- take photos within naval jurisdictions cumstances: will be advised of areas where photog- (A) The Assistant Secretary of De- raphy is permitted. An escort will be fense (Public Affairs), having approved assigned to assure that security is a release, directs that it be issued by maintained, unless photography is per- the command concerned. mitted throughout the ship, aircraft or (B) An event of immediate and ur- installation, or the areas in which it is gent news interest, such as a not permitted are appropriately guard- disasterous accident, occurs at the ed or secured. command, and emergency announce- (c) If there is reason to believe that ments must be made as delay in issuing film exposed by a visitor or media pho- information would be against the best tographer contains classified informa- interests of the Navy. The officer in tion, the film will be processed under command will make a ‘‘spot news’’ re- Navy jurisdiction. lease of all appropriate information (1) Classified photos, if any, will be considered releasable. retained. All unclassified film will be (1) Copies of spot news releases made returned to the owner. (or a description if the announcement

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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 original inquiry or request substan- (v) Newsmen are not normally asked tially similar inquiries or requests are to submit their questions in advance. If received from other newsmen, the first this is considered advisable, as in cases inquirer will be so informed, and subse- where highly technical answers may be quent inquirers will be advised that a required, the answers are prepared in prior request has been received. None advance and given to all attending of the inquirers will be told the iden- newsmen (not just the questioner) at tity of the individuals or media who the news conference. have placed these similar inquiries. (5) Interviews. These are similar to (B) If not more than three similar re- news conferences except that they in- quests are received, the information volve a single newsman (who has usu- will be provided simultaneously to ally requested the interview) and a sin- each inquirer. gle Navy spokesman. (C) If more than three requests for (i) Required procedures are essen- substantially the same information tially the same as for news con- have been received before any are an- ferences. However, a public affairs offi- swered, inquirers will be advised as cer should be present only if desired by soon as possible that the information the person being interviewed. The cannot be given on an exclusive or lim- interview may be taped, if the news- ited basis, and a general release cov- man agrees. ering the subject will be issued to all (ii) Without penalizing initiative dis- media. played by a newsman in asking perti- (4) News conferences: nent questions, care should be exer- (i) A news conference is held when a cised by the naval spokesman not to command has something specific to an- make a major revelation of news mate- nounce to the press that cannot be han- rial to a single media outlet in the dled in a news release or by phone call. course of a routine interview. A news conference should not be called (iii) If major areas of difficulty arise just to get together with the press. A in the interview, the Chief of Informa- request from the press is also a reason tion should be notified of them.

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(6) Background briefings; ‘‘Not for at- request, through the chain of command tribution’’; or ‘‘Off the record.’’ to the Chief of Information. (i) Since there is a possibility or risk (ii) No direct coordination or contact of a misunderstanding arising in these between local naval commands and the briefings, it is important that all con- Assistant Secretary of Defense (PA) is cerned understand and agree to the authorized unless specifically provided ground rules. for by separate directives or cor- (ii) In general, information will not respondence. 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 taking place. such a manner as to give a true portrayal and interpretation of military § 705.7 Radio and television. life. (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 § 705.17). (3) Operational readiness shall not be (2) Cooperation with them when they impaired. produce a program on a Navy subject. (4) Official activities of military per- This is discussed in the paragraph fol- sonnel assisting the production must lowing: be within the scope of normal military (b) Requirement for approval by activities. Exceptions to this policy higher authority. will be made only in unusual cir- (1) Commanding officers may: cumstances. (i) Release audiovisual material (5) Diversion of ships, equipment, which is spot news, as defined in personnel and material resources from § 705.6(a)(2)(ii) preceding, or is of purely normal military locations or military local interest. operations will not normally be au- (ii) Participate in local community thorized for filming. Exceptions to audiovisual projects of benefit to the such policy must be authorized by the Department of Defense or in the na- Assistant Secretary of Defense (Public tional interest. Affairs), through the Chief of Informa- (iii) Approve one-time, one-station tion. participation by personnel of their (i) The production company con- commands (as individuals) in programs cerned must reimburse the government of purely local interest. for any extra expense involved. A strict (2) All other audiovisual material accounting of the additional expenses originated by the Department of the incurred and charged to the production Navy or requiring Navy cooperation company must be maintained by the must be approved by the Chief of Infor- designated project officer. A copy of mation, who will effect the necessary this accounting will be forwarded to coordination and/or approval of the As- the Chief of Information. sistant Secretary of Defense (Public (6) Naval material and personnel will Affairs). not be employed in such a manner as to (i) Requests for assistance from non- compete with commercial and private governmental audiovisual media will enterprise. In this regard, any person be forwarded, with the maximum avail- or agency requesting their use will fur- able details and an evaluation of the nish a noncompetitive certification.

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(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 commitments. (h) Requests for courtesy prints of (iii) Not in competition with the reg- commercial television programs: ular employment of professional per- (1) Requests will not be made directly formers. to the producer or network concerned, (2) The public affairs officer will but will be forwarded to the Chief of In- screen requests for such appearances formation by the Navy requester. for members of his command to see (2) These courtesy prints will be ex- that the programs are in good taste, hibited only under circumstances and that neither the Navy nor its per- which cannot be construed as competi- sonnel are exposed to embarrassment tive with commercial ventures. for the sake of entertainment. (3) Approval of participation by Navy § 705.8 Motion pictures. individuals: (a) The rules and procedures given in (i) Approval is not required for per- the preceding for TV will also apply to sonnel attending audience participa- cooperation with commercial motion tion broadcasts if they are selected at picture producers. random from the audience. (b) The Navy assists in the produc- (ii) One-time, one-station participation of commercial, privately financed, tion of purely local interest may be ap- nontheatrical motion pictures of insti- proved by the officer in command con- tutional or of educational value to the cerned. public. They Navy will not: (iii) If participation will be on a net- (1) Solicit their production. work (defined as more than one sta- (2) Provide lists of subjects the Navy tion, even if local) of if the same per- considers ‘‘desirable.’’ son or program is requested by two or more unrelated stations, approval by (3) State that the Navy will use a the Chief of Information must be ob- commercially produced film. tained even if the show is of local in- (4) Imply endorsement of a product. terest only. (5) Permit the use of official Navy (e) Use of official footage: seals. (1) Use of official U.S. Navy stock (c) Navy assistance to motion pic- film footage on TV broadcasts is not tures and all other audio-visual prod- authorized without approval and clear- ucts produced by Navy contractors will ance by the Chief of Information and be subject to the same rules and proce- the Department of Defense. dures that apply to other non-govern- (2) Use of Navy public information ment producers. Audio-visual products motion pictures cleared for TV is au- produced by Navy contractors, with or thorized and encouraged except that without Navy assistance, will be sub- such films may be used on subscription mitted to the Chief of Information via

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the appropriate Navy headquarters ac- § 705.5 apply also to media representa- tivity for coordination with the Assist- tives. ant Secretary of Defense (Public Af- (b) Basic policy and procedures for fairs) for clearance for public release. still photos are set forth in the Manual They will be accompained by five cop- of Naval Photography, OPNAVINST ies of the script and a statement from 3150.6D. the producer that costs were paid from (c) Authority to forbid photography: corporate (vice contract) funds. (1) On Navy property, the officer in (d) When a commercial film which command may forbid the taking of has been produced with Navy coopera- photographs and may confiscate film, tion is screened in a community, local reviewing it if it is suspected that clas- commands can provide Navy exhibits sified material has been photographed. for display in theater lobbies, coordi- In such cases, all unclassified photos nate displays of recruiting material, will be returned promptly to the pho- and arrange for personal appearances tographer. of Department of Defense and Depart- (2) Navy personnel have no authority ment of the Navy military and civilian to confiscate film off Navy property. If, personnel, provided such cooperation is as in an accident, classified equipment approved by the Chief of Information is exposed which cannot be removed or and the Assistant Secretary of Defense covered, Navy representatives will ask (Public Affairs). news media photographers not to pho- [41 FR 29101, July 15, 1976, as amended at 44 tograph it and will inform them of 18 FR 6390, Feb. 1, 1979] U.S.C. 793(e), 795, 797, which makes it a criminal offense to photograph classi- § 705.9 Availability of motion pictures fied material. Navy personnel will not to external audiences. use force if media photographers refuse (a) Public access. Navy and Marine to cooperate, but will instead seek the Corps general motion pictures and mo- assistance of appropriate civil authori- tion picture projects not previously ties and/or the photographer’s superior cleared for public exhibition will rein recovering film or photographs pre- quire clearance by the Chief of Infor- sumed to be of classified nature. mation or the Marine Corps Director of (3) If media photographers are unco- Information, as appropriate, prior to operative in regard to protection of public viewing. Concurrent review of classified material, an account of the legal rights and instruments associated matter will be forwarded to the Chief with the production will be carried out of Information. by Patent Counsel, Naval Air Systems (d) Release of photographs: Command (AIR–OOP). Cleared motion (1) Most unclassified photographs of pictures may also be made available interest to the public may be released for free loan as determined by the indi- to news media. However, the rights of vidual services. In addition, cleared individuals photographed and special motion pictures may be provided for constraints such as those described in rent or sale through the National section 0403 of the Public Affairs Regu- Audio-Visual Center, National Ar- lations must be taken into consider- chives and Records Service (GSA), ation before a decision is made to re- Washington, DC 20409. lease a photograph. In addition, photos (b) Foreign military training. Motion which might be harmful to recruiting pictures from the Navy inventory may or otherwise not be in the Navy’s best be made available for foreign military interests will not be used unless this training programs on approval by the failure to release them constitutes sup- Chief of Naval Operations. Classified pression of legitimate news. motion pictures selected for such use (2) Photographs of strictly local in- will also require a security review by terest can be made available by the the Chief of Naval Operations. command to local media without being submitted to review by higher author- § 705.10 Still photography. ity. (a) Policy and procedures on taking (3) If a feature type photo released lo- photos by the general public, given in cally is considered of possible interest

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elsewhere, because of its human inter- federal government, without specific est or artistic merit, a single print permission from the Chief of Naval Op- should be forwarded to the Chief of In- erations. formation, together with a notation of (b) In the case of natural catas- the distribution made. trophe, or other circumstances where (4) Photographs of national interest: prompt action is required, the senior (i) ‘‘Spot news’’ photos may be re- officer present may authorize a depar- leased by a District Commandant or ture from the preceding paragraph. In Fleet or Force Commander. all such cases, a report of the cir- (ii) If a photo has been released by a cumstances will be made to the Chief local command to national news of Naval Operations. media: (c) This policy does not preclude re- (A) The original negative or trans- leases to the media, news companies, parency will be forwarded by the fast- and others in accordance with estab- est available means to the Com- lished procedures, or the sale of re- manding Officer, Naval Photographic leased photographs to private agencies Center, Naval Station, Washington, DC or individuals under existing Depart- 20390. Such forwarding will be in ac- ment of Defense regulations and part cordance with the Manual of Naval 701, subparts A–D, Availability to the Photography, par. 0445, subparagraphs public of Department of the Navy In- 3 and 4. formation and Records. Normally, re- (B) One print, a copy of the letter of quests by individuals for still photo- transmittal, and the distribution list graphs and motion picture photog- will be forwarded to the Chief of Infor- raphy for private use are forwarded to mation. the Commanding Officer, Naval Photo- (C) Navy units with a Unified Com- graphic Center, Naval Station, Wash- mand will forward the photos through ington, DC 20390, for action. Procedures Unified Command channels. for the collection or authority for (D) All other commands will forward waiver of fees for service and material the photos to the Chief of Information provided are set forth in Volume III, who will effect coordination with the NAVCOMPT Manual, and part 701, sub- Office of the Assistant Secretary of De- parts A–D. fense (Public Affairs) and, if necessary, (d) Navy aerial photography released arrange for security review. for sale to the public is transferred to (iii) Photography of research activi- the United States Department of the ties is normally considered to be of na- Interior. Inquirers regarding the pur- tional interest. chase of this photography should be di- (iv) Still photographs of national rected to Chief, Map Information Of- news interest may be forwarded, un- fice, Geological Survey, Department of processed, for release by the Chief of the Interior, Washington, DC 20025. Information by any command not sub- (e) Navy training films suitable for ject to the authority of a Unified or sale to the public are transferred to the Specified Commander. Such forwarding National Audio-Visual Center, Na- will be in accordance with paragraph tional Archives and Records Service, 0445, subparagraph 3, of the Manual of General Services Administration, Naval Photography. All available cap- Washington, DC 20408. Inquires regard- tion material will be forwarded with ing the sale of Navy training films this unprocessed photography. should be addressed to the National Audio-Visual Center. § 705.11 Supplying photographs and (f) This policy does not preclude re- services to other than Navy and Ma- leases to contractors and others prop- rine Corps. erly engaged in the conduct of the (a) To avoid competition with civil- Navy’s business. However, when serv- ian photographic organizations, naval ices are performed for other agencies of aircraft will not be used to take photo- the government, and under certain con- graphs for, nor will photographs or mo- ditions, for other military depart- saic maps be provided to any individ- ments, the Navy Comptroller Manual uals, corporations, or agencies other prescribes that such are subject to re- than departments or agencies of the imbursement.

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(g) All private inquiries from foreign racy of the advertiser’s claims or for nationals should be returned, advising his compliance with laws protecting the addressee to contact his local U.S. the rights of privacy of military per- Information Service officer for the de- sonnel whose photographs, names or sired materials. statements appear in the advertise- ment. It will neither indicate that a § 705.12 Print media. 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 taken exclusively for the use of an ad- or in any way reflect discredit upon vertiser. them.) (d) Navy cooperation in commercial advertising, publicity and other pro- (5) Testimonials from naval per- motional activities will be based on the sonnel are not banned, but the person following requirements. giving the testimonial must not be spe- (1) It must be in accordance with the cifically identified. provisions of 32 CFR part 721. (i) The use of name, initials, rank or (2) It must be in good taste and not rate of Navy personnel appearing in reflect discredit on the Navy or the testimonial advertising is not per- U.S. Government. Statements made mitted, but such expressions as, ‘‘says must be matters of fact, without mis- a Navy chief,’’ may be used. leading information or other objection- (ii) Care will be taken to ensure that able features. testimonials from Navy personnel are (3) It must not indicate that a prod- presented in such a way as to make uct is used by the Navy to the exclu- clear that the views expressed are sion of similar products offered by those of the individual and not of the other manufacturers or appear to en- Department of the Navy. dorse or selectively benefit or favor (directly or indirectly) any private indi- § 705.14 Embarkation of media rep- vidual, sect, fraternal organization, resentatives. commercial venture or political group, (a) General. (1) Although this para- or be associated with solicitation of graph applies primarily to embar- votes in a political election. It will not kation in ships, provisions which are infer Navy responsibility for the accu- applicable to embarkation on aircraft

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or visits to shore installations apply be embarked in the Exercise Com- also to those situations. mander’s flagship or the Exercise Con- (2) See also § 705.37 on transportation trol ship, when possible. This ship of non-Navy civilians. should also control the ship-to-shore (b) Invitations to embark. (1) Invita- press radio and teletype (RATT). tions should be extended as far in ad- (6) When more than one representa- vance as possible and inclusive infor- tive from the same medium is em- mation on the following should be pro- barked, an attempt should be made to vided: have them located at separate vantage (i) Type, scope and duration of oper- points. ation or cruise. (d) Communications. (1) Every effort (ii) Communications, methods of will be made to provide suitable com- press transmission, and charges, if any. munication facilities for newsmen em- (iii) Transportation arrangements. barked (including equipment and per- (iv) Approximate cost of meals and/or sonnel, if feasible). quarters, and the statement that the (2) All persons embarked with per- newsman will be expected to pay for mission of proper authority and accred- these and other personal expenses in- ited as correspondents are eligible to curred. file press traffic, as authorized by the (2) It should be made clear to the procedures set forth in Naval Tele- newsman that there may be limits on communication Procedures (NTP–9), movement from one participating unit ‘‘Commercial Communications.’’ to another. If helicopters or highline (3) Navy radio or wire transmission transfers are to be used, their limita- facilities, where available, may be tions and hazards should be explained. made available to news media (includ- (3) On operations where security is ing accredited civilian photographers) critical, embarkation of newsmen may when operational requirements permit, be made contingent to their agreement in accordance with instructions set to submit copy for security review. forth by the Director of Naval Commu- Under such circumstances, the reason nications. This includes making live for the review will be made clear prior broadcasts or telecasts. (A live net- to embarkation, and every effort will work broadcast or telecast must, how- be made to avoid any interpretation of ever, be approved by the Chief of Infor- such review as ‘‘censorship’’ or inter- mation.) ference with freedom of the press. (4) Messages and instructions from (c) Arrangements aboard ship. (1) editors and station managers to em- Where appropriate, a briefing should be barked newsmen will be handled as held at the earliest convenient time press traffic, as authorized in Naval after embarkation at which newsmen Telecommunication Procedures (NTP– may meet the commanding officer and 9). other key personnel and guests and at (5) Stations receiving press circuits which previously supplied information will be authorized to receipt for press is reviewed. traffic without asking for time-con- (2) If feasible, an escort officer will be suming ‘‘repeats.’’ assigned to each newsman (or group of (6) Under normal circumstances, newsmen having similar requirements). press copy will be transmitted on a (3) It should be reported in the ship’s first-come, first-served basis; however, newspaper (and on radio and closed-cir- newsmen will be informed that the pre- cuit TV, if any) that newsmen will be rogative of limiting the amount to be embarked, giving their names and the filed during any one period rests with media they represent. the Exercise Commander. (4) If a correspondent is interested in (7) If it becomes necessary for oper- home town material, personnel from ational reasons for newsmen to pool his area should be contacted in ad- copy, such messages shall be filed as vance, if possible, to determine if and ‘‘multiple address messages’’ or book when they would be available for inter- messages, as appropriate, or when reviews and photos. quested by the newsmen concerned. (5) Representatives of press associa- (8) If the locale of the exercise per- tions and radio and TV networks will mits newsfilm and press mail to be

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flown ashore, flights should be sched- (ii) The Office of Information does uled on a high priority basis to connect not issue, nor have funds available for with scheduled commercial air traffic. the purchases of, any photographic Operational aircraft as well as sched- equipment or supplies for Navy com- uled government air flights should be mands. Details on the establishment of considered for delivery of television authorized laboratories and acquisition news film, radio tapes and photography of equipment and supplies are given in to the nearest commercial communica- the Manual of Navy Photography tions facility. (OPNAVINST 3150.6D). (e) Voluntary submission of material by (2) Photographic coverage of command a newsman for security review. When a events. (i) If more than two photog- review is not required but is sought by raphers are required to cover a public the newsman, no attempt will be made event, consideration should be given to to delete or change any material, having them wear appropriate civilian whether or not it appears critical of attire. the Navy or of naval personnel. If any (ii) Personnel in uniform who are classified information is included, the amateur photographers and who are at- newsman will be asked to delete it. In tending the event as spectators will addition, his attention will be drawn to not be discouraged from taking photos. any inaccurate or possibly misleading (3) Unofficial photos taken by Navy per- statements. sonnel. (i) The following regulations [41 FR 29101, July 15, 1976, as amended at 44 apply to Navy civilian employees and FR 6390, Feb. 1, 1979] to Navy personnel in transit through a command, as well as to active duty § 705.15 Employment of Navy per- personnel assigned to the command. sonnel as correspondents or staff (ii) Personal cameras and related members of civilian news media. equipment are permitted on Navy (a) A member of the naval service on ships, aircraft and stations at the dis- active duty or Navy civilian may act as cretion of the officer in command. correspondent for a news periodical or (iii) An officer in command may service, radio or TV station or net- screen all photos taken by naval per- work, or may work part-time for such sonnel with personal cameras within an organization. The Secretary of the the jurisdiction of the command to pro- Navy will, however, be immediately in- tect classified information or to ac- formed, via the Chief of Information. quire photos for official use, including (1) See section 0307 (par. 5), section public affairs. Photographs taken by 0308 (par. 4), and section 0309 (par. 3) of bystanders at times of accident, com- the Navy Public Affairs Regulations bat, or similar significant events can for regulations referring to personnel be valuable for preparation of official assigned to public affairs staffs receiv- report and public release. They should ing compensation for such work. be collected for screening and review as (2) In time of war, only personnel as- expeditiously as possible. signed to public affairs billets and such (iv) Amateur photographers should other personnel as the Secretary of the also be encouraged to volunteer the use Navy may authorize can act as cor- of interesting or significant photos for respondents for civilian media. public affairs use. (b) Military personnel on active duty (v) Photos made by naval personnel, and Navy civilians may not serve on with either personal cameras and film, the staff of a ‘‘civilian enterprise’’ Navy equipment and film, or any com- newspaper published for personnel of a bination thereof, may be designated Navy installation or activity. ‘‘Official Navy Photo’’ if it is considered in the best interests of the Navy. § 705.16 Navy produced public infor- (A) All precautions will be taken to mation material. protect such film from loss or damage, (a) Still photo—(1) General. (i) The pol- and all unclassified personal photos not icy and procedures given for media pro- designated as ‘‘official’’ will be reduced still photos in § 705.10, apply to turned to the owner immediately after Navy produced photos. review.

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(B) When a photo taken by an indi- forwarding letter will be sent to the vidual who is not an official photog- Chief of Information. rapher is selected for public affairs re- (c) Fleet Home Town News Center lease: (FHTNC). (1) All public affairs officers (1) The photographer will receive will assure that appropirate news and credit for his work in the same manner photo releases on personnel of their as an official photographer. commands are regularly sent to the (2) The original negative or trans- Fleet Home Town News Center. parency will be retained and assigned (2) Procedures, requirements and for- an official file number. It will then be mats are contained in CHIN–FOINST handled like any other official Navy 5724.1. photograph. [41 FR 29101, July 15, 1976, as amended at 44 (3) At least one duplicate negative or FR 6390, Feb. 1, 1979] transparency of each unclassified personal photo which has been designated § 705.17 Participation guidelines. as ‘‘official’’ will be prepared and deliv- (a) The provisions of this section ered to the photographer. A black-and- refer to participation by naval per- white print may also be prepared for sonnel and use of Navy facilities and the photographer’s personal use. material in events sponsored by non- (b) Audiovisual. (1) The Chief of Infor- government organizations except mation releases TV featurettes directly where otherwise stated. to local TV stations and the Office of (b) In accordance with the estab- Information’s Branch Offices (NAV lished responsibilities of local officers INFO’s). After such featurettes have in command, these officers will con- been cleared for public release by the tinue to determine whether facilities, Assistant Secretary of Defense (Public equipment and personnel within their Affairs). cognizance may be provided for such (2) The Assistant Secretary of De- programs (except in the Washington, fense (PA) must approve, prior to com- DC area where the Assistant Secretary mitment of funds, the initiation of of Defense (Public Affairs) is the au- Navy audiovisual productions intended thorizing authority). for public release. (c) Officers in command will ensure (3) Motion picture film. that participation is appropriate in (i) Film of major news value will be scope and type, and is limited to those forwarded immediately, unprocessed, occasions which are: In keeping with to the Commanding Officer, U.S. Naval the dignity of the Department of the Photographic Center. The package Navy, in good taste and in conformance should be labeled as follows: with the provisions of part 721 of this chapter. The national, regional, state NEWS FILM—DO NOT DELAY or local significance of the event and the agency sponsoring the event will be Commanding Officer, U.S. Naval Photo- used as guides in determining the scope graphic Center (ATTN: CHINFO Liaison), Washington, DC 20374. and type of Navy participation to be authorized. NEWS FILM—DO NOT DELAY (d) Participation in community relations programs is authorized and en- The Commanding Officer of the Naval couraged to accomplish the aims and Photographic Center will be advised purposes as set forth in § 705.18 (fol- (with an information copy to the Chief lowing). Where mutually beneficial to of Information) of its forwarding, the the Department of Defense and the subject, type and amount of footage, public, support authorized and provided method of delivery, and estimated time is always subject to operational consid- of arrival in Washington. erations, availability of requested sup- (ii) The original negative of motion port and the policy guidance provided picture photography of feature value herein. (photography which will not lose its (e) Military personnel, facilities, and timeliness over a reasonable length of materiel may be used to support non- time) will be forwarded to the Naval government public affairs programs Photographic Center, and a copy of the when:

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(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: to endorse, benefit or favor, any pri- (i) Ensure that the minority commu- vate individual, group, corporation nity is aware of the procedure for ob- (whether for profit or nonprofit), sect, taining Navy support for community quasi-religious or ideological move- events and that they are appraised of ment, fraternal, or political organiza- the use of Navy demonstration teams, tion, or commercial venture, or be as- units, and speakers. sociated with the solicitation of votes (ii) Encourage Navy involvement in, in a political election. and attention to, local minority com- (1) Providing use of government fa- munity events. cilities, such as transportation, hous- (iii) Continue to cultivate a rapport ing, or messing, at government expense with key members of all minority com- to private groups is normally inter- munities. preted as a selective benefit or favor (k) Participation is not authorized if and is not authorized as part of a com- there is fund raising of any type con- munity relations program. Therefore, nected with the event, except as pro- such provisions are normally not au- vided for in § 705.34. thorized as part of a community rela- (l) No admission charge may be lev- tions program, even though certain ied on the public solely to see an uses of facilities may be authorized Armed Forces demonstration, unit, or under directives on domestic action or exhibit. other programs. (1) When admission is charged, the (2) The above does not bar private Armed Forces activity must not be the groups from providing entertainment sole or primary attraction. on base. However, the appearance must (2) A general admission charge need be for entertainment and not for fund- not be considered prohibitory to Navy

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participation, but no specific or addi- be used in such capacities as ushers, tional charge may be made because of guards, parking lot attendants, runner Navy participation. or messengers, baggage handlers or for (3) Participation shall be incidental crowd control, or in any installations. to the event except for programs of a (t) Maximum advantage of recruiting patriotic nature, celebration of na- potential will be taken at appropriate tional holidays, or events which are events for which Navy participation open to the general public at no charge has been authorized. for admission. (u) Navy support will not normally (4) The provisions of this paragraph be authorized for commercially-ori- do not apply to the Navy’s Blue Angel ented events such as shopping center Flight Demonstration Team or to the promotions, Christmas parades, and Navy Band and other special bands en- other such events clearly sponsored by, gaged in authorized concert tours con- or conducted for the benefit of com- ducted at no additional cost to the gov- mercial interests. However, this policy ernment. does not preclude participation of Navy (m) Some participation in or support recruiting personnel and their organic of commercially sponsored programs equipment, materials and exhibits so on audio or visual media is allowable. long as their participation is not used See §§ 705.7 and 705.8. to stimulate sales or increase the flow (n) Some participation which sup- of business traffic or to give that ap- ports commercial advertising, pub- pearance. Requests for exceptions will licity and promotional activities or be considered on a case-by-case basis events is allowable. See section 0405, by the Chief of Information. par. 3 of the Navy Public Affairs Regu- (v) Questions as to appropriateness of lations. Navy participation, or as to existing (o) Navy speakers may be provided Navy and OASD (PA) policy, may be for certain events at which other forms referred to the Chief of Information. of Navy participation may not be ap- (w) Procedures for requesting partici- propriate. See section 0604, par. 8 of the pation are addressed in § 705.21. Navy Public Affairs Regulations. [41 FR 29101, July 15, 1976, as amended at 44 (p) When participation is in the mu- FR 6390, Feb. 1, 1979] tual interest of the Navy and the sponsor of the event, participation will be § 705.18 Authority and coordination. authorized at no additional cost to the (a) Each naval command will coordi- government. Additional costs to the nate its community relations program government (travel and transportation with the senior authority having re- of military personnel, meals and quar- sponsibility for community relations in ters, or standard per diem allowances, its area (District Commandant, Unified etc.) will be borne by the sponsor. Commander, or other). (q) Department of Defense policy pro- (b) Within policy limitations out- hibits payment by the Armed Forces lined in this section, the command re- for rental of exhibit space, utilities, or ceiving a request for Navy participa- janitorial costs. Other exceptions may tion, and processing the required re- be given under unusual circumstances. sources, has the authority to process (r) Navy participation in professional the request and provide the support re- sports events and post-season bowl quested. games will frequently be authorized at (c) Requests for support exceeding no additional cost to the government, local capability, or requiring approval will emphasize Joint Service activity from higher authority, or requiring an when possible, and must support re- exception to policy will be referred as cruiting programs. Chief of Informa- directed in § 705.21 for determination. tion approval is required. (d) The Assistant Secretary of De- (s) Navy participation in public fense (Public Affairs) has the overall events shall be authorized only when it responsibility for the Department of can be reasonably expected to bring Defense community relations program. credit to the individuals involved and Civilian sponsors should be advised to to the Armed Forces and their recruit- address requests for approval of the fol- ing objectives. Naval personnel will not lowing types of programs directly to

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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. (5) Aerial reviews on military instal- be delegated. lations within the United States if the § 705.19 Financing. review involves more than one Service. (6) Programmed national sports, pro- (a) The financial requirements for fessional athletic events, formal inter- community relations purposes will be national competitions, and contests be- kept to the minimum necessary to ac- tween a Navy and professional team in complish Department of Defense objec- the public domain. See section 0605, tives. par. 18 of the Navy Public Affairs Regu- (b) Costs of participation will nor- lations. mally be at government expense for the (7) Performing Navy units appearing following types of events and programs on regional or national television. when they are in the primary interest (8) Overall planning for Armed Forces of the Department of Defense: Day (not including local activities). (1) Public observances of national (9) Granting exceptions to policy. holidays. (e) Overseas, Unified Commanders (2) Official ceremonies and functions. are designated to act for and on behalf (3) Speaking engagements. of the Secretary of Defense in imple- (4) Programmed, scheduled tours by menting community relations pro- Navy information activity support grams within their command areas and units (e.g., an exhibit from the Navy in granting any exceptions to policy or regulations. This authority may be del- Exhibit Center) when this method of egated. reaching special audiences is consid- (1) Policy, direction and guidance for ered by the Secretary of the Navy to be Unified Command community relations the most effective and economical way programs are provided to Navy compo- of accomplishing a priority public af- nents of these commands by the Uni- fairs program. fied Commander concerned. (5) Tours by units (e.g., the Navy (2) Authority of the Commander-in- Band) for which appropriated funds Chief, Pacific extends to planning and have been specifically provided. execution of community relations pro- (6) Support of recruiting. grams in Alaska and Hawaii. Participa- (7) Events considered to be in the nation in events held in Alaska and Ha- tional interest, or in the professional, waii will be governed by the same prin- scientific, or technical interests of the ciples as policies applicable to other Navy or Department of Defense, when states. approved by the Secretary of Defense (3) Community relations programs or the overseas Unified Commander, as and events taking place within the appropriate.

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(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 [41 FR 29101, July 15, 1976, as amended at 44 can be accomplished by government FR 6391, Feb. 1, 1979] aircraft on a normal training flight or opportune airlift. § 705.21 Requests for Navy participation. § 705.20 Use of Navy material and fa- (a) Decisions will be made on a case- cilities. by-case basis. Events which are inap- (a) The loan of equipment and per- propriate for one type of participation mission to use facilities will be depend- may be entirely appropriate for an- ent on the following: other type of participation. A positive (1) The program support must be and flexible approach should be em- within the command’s public affairs re- ployed. sponsibility. (b) Requests by civilian organizations (2) The loan of the equipment must for Navy participation in programs or not interfere with the military mission events they sponsor should be ad- of the command. dressed to the nearest naval installa- (3) Equipment must be available tion and should be evaluated and au- within the command or obtainable thorized at that level if possible. Re- from another Navy command in the quest exceeding local resoures, or re- local area. quiring authorization from higher au- (4) The event must be of the type for thority, should be forwarded through which participation is considered ap- appropriate channels. (c) Requests for Armed Forces par- propriate. ticipation in public events are to be (5) It must not be in any direct or im- submitted on official request forms plied competition with a commercial (§§ 705.33, 705.34 and 705.36) by the spon- source. sors of events occurring outside a com- (6) There must be no potential danger mand’s area of direct knowledge and to persons or private property that local capability, or involving a type or could result in a claim against the gov- level of participation unavailable lo- ernment. Safety requirements will be cally, or requiring approval of higher observed. authority. (b) Use of open mess facilities will be (d) Fact sheets expounding upon nor- permitted only under one of the fol- mally requested assets are enclosed in lowing conditions: §§ 705.33, 705.34 and 705.36 and may be (1) Incident to the holding of a pro- reproduced and distributed locally. fessional or technical seminar at the (e) The official request form is to be command. used on all requests referred to the (2) Incident to an official visit to the Chief of Information and to the Office command by a civic group. of Assistant Secretary of Defense (Pub- (3) Navy League Council luncheon or lic Affairs). dinner meetings (not to exceed one per quarter per group). § 705.22 Relations with community (4) Incident to group visits by the groups. Boy Scouts of America, Boys Clubs of (a) Naval commands will cooperate America, the Navy League Sea Cadets with and assist community groups (by virtue of their federal charters), within their capabilities, to the event Girl Scouts and the Navy League Ship- authorized by current instructions, and mates, and a few representative adult will participate in their activitis to the leaders. extent feasible.

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(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 the Secretary of the Navy, open mess not take action in connection with facilities may be used for luncheon or labor disputes. Personnel inadvertently dinner meetings of Navy League Coun- or incidentally involved in labor dis- cils, but not more often than once per putes will consult officers in command quarter per group. for guidance. (e) Relations with Industry and (f) Emergency Assistance to the Com- Labor in the Community (refer to munity: SECNAVINST 5370.2F and DOD Direc- (1) Navy commands will offer and tive 5500.7): provide assistance to adjacent commu- (1) Relations with Navy contractors nities in the event of disaster or other and with industry and business in gen- emergency. eral are the responsibility of the officer (2) The Chief of Information will be in command, with the assistance of his advised immediately of action when public affairs officer. taken, and copies of subsequent reports (2) Navy commands will cooperate to the Chief of Naval Operations will be with industry and its representatives forwarded to the Chief of Information. in planning and executing community (3) Navy commands will participate relations projects of mutual interest. in planning by local Civil Defense offi- (i) Visits to commands will be sched- cials. uled for industrial and employee [41 FR 29101, July 15, 1976, as amended at 44 groups under the same conditions as FR 6391, Feb. 1, 1979] for other civilian groups. (ii) A contractor may be identified in § 705.23 Guest cruises. a news release, exhibit, or the like (a) General policy. (1) The embar- whenever the major responsibility for kation of civilian guests in Navy ships

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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- commanders, if so designated) have the sociations. authority to use Navy ships to embark (ii) Embarkation of media represent- individuals other than news media rep- atives on assignment is discussed in resentatives for public affairs purposes. § 705.14. (i) Public affairs embarkations origi- (iii) Other categories may be estab- nating within the geographical limits lished by the Secretary of the Navy, of the Unified Command will be ap- subject to the approval of the Sec- proved by and coordinated with the retary of Defense. commanders of such commands. This (2) It has also been demonstrated authority may be delegated. Requests that the occasional embarkation on for such embarkations originating with cruises of families and personal guests the subordinate fleet or force command of naval personnel has contributed ma- of a Unified Command will be sub- terially to the morale of the family cir- mitted via the operational chain of cle and has instilled in each individual command, to the appropriate com- a sense of pride in his ship. For further mander of the Unified Command, un- information see OPNAVINST 5720.2G. less delegated. (3) Embarkations should be con- (ii) Requests for public affairs embar- ducted within the framework of regu- kations originating from any Navy larly scheduled operations; underway source other than the Chairman of the periods solely to accommodate guests Joint Chiefs of Staff, or the Unified and are not authorized. Specified Commanders or their subor- (4) Commander-in-Chief, Pacific dinate commands, will be submitted to Fleet, Commander-in-Chief, Atlantic the Chief of Information, who will ef- Fleet, Commander-in-Chief, U.S. Naval fect coordination with the Chief of Forces Europe, Commander Military Naval Operations and/or the Assistant Sealift Command (and their subordi- Secretary of Defense (Public Affairs) as nate commands if so designated), Chief appropriate. of Naval Education and Training, and (iii) When guests debark in a foreign District Commandants may authorize port which is in the geographic area of the embarkation of female civilians for a Unified Command other than that in daylight cruises. Embarkation of civil- which the cruise originated, the Chief ians for overnight cruises must be au- of Information will coordinate travel thorized by the Chief of Naval Oper- by obtaining concurrence of all appro- ations via the Chief of Information. priate commanders and the approval of (5) All guest visits are normally au- the Chief of Naval Operations, and the thorized on an unclassified basis. Assistant secretary of Defense (Public (6) In all instances, due precautions Affairs) as appropriate. must be taken for the safety of the (2) Officers in command to whom au- guests. (See section 0403, pars. 6(b) and, thority to embark guests for public af- 6(e), of the Navy Public Affairs Regula- fairs purposes is delegated will make tions, for procedures to be followed in maximum use of this authority. the case of death of, or injury to, civil- (c) Secretary of the Navy Guest Cruise ians embarked on naval ships.) and Guest of the Navy Cruise Programs. (7) For further information on policy, (1) The objective of these two programs procedures, and eligibility criteria, see is: To expose top-level and middle-level OPNAVINST 5720.2G. opinion leaders in the fields of busi- (b) Authority. (1) Authority to estab- ness, industry, science, education, and lish procedures for the conduct of the labor to the operation of the U.S. embarkation of guests for public af- Navy, in order that they may gain a fairs purposes (including the Secretary better understanding of its capabilities of the Navy Guest Cruise and Guest of and problems, the complicated nature

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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 informative 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 prehensive unclassified briefings will statement will be included with each be given dealing with the Navy’s mis- invitation, or form part of the attached sion, fleet operations, and current information sheets: problems. (F) Cruises will vary in length from 3 The Department of the Navy has no specific authority to use its funds to defray or to 7 days, when appropriate, to con- reimburse any personal expenses of a navy form with the operating schedule of the guest. As a result, the Department of the ship. Navy cannot provide you with transpor- (ii) Guests of the Navy Cruise Program. tation to the port of embarkation or from (A) All types of ships will be used. This the port of debarkation back to your home. will include carriers when available, Your expenses for meals will be quite nomi- after selection of a cruise for the Sec- nal while you are on board a naval ship or fa- retary of the Navy Guest Cruise Pro- cility. You should make provision for any extraordinary expense which may arise. For gram. example, if a personal or other emergency (B) Guest of the Navy Cruise guests arises which necessitates your returning will be drawn from middle-level execu- home during the cruise, you should be pre- tives and leaders who have not had prepared to take commercial transportation at vious exposure to the Navy. Guests your own expense from the most distant should include persons who have direct point on the cruise itinerary. impact on recruiting, such as sec- Navy ships and aircraft, by their very na- ondary school principals, guidance ture, present certain hazards not normally counselors, coaches and teachers. encountered on shore. These hazards require persons on board to exercise a high degree of (C) Cruises of relatively short dura- care for their own safety. tion (3 to 5 days) are preferred, al- Acceptance of this invitation will be con- though cruises up to 7 days are author- sidered your understanding of the above ar- ized. Protracted cruises will not be ap- rangements and limitations.

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(iii) Applicable to both programs. (A) purchase of items for immediate per- Guests will provide their own transpor- sonal use. tation from home to the ship and re- (G) Only emergency medical and den- turn, and must reimburse the Navy for tal care will be provided and then only living and incidental expenses while where civilian care is not conveniently embarked so that the program may be available. conducted at no additional expense to (1) In the event of injury to civilians the government. embarked in Navy ships and aircraft or (B) Because the number of billets visiting naval activities, commanding available to accommodate all of the po- officers will notify the Chief of infor- tential guests is limited, the guest’s mation, the appropriate Commandant, opportunity to communicate his expe- and operational commanders, by mes- rience to his associates must be consid- sage, of the injury and action taken. ered. For this reason, one of the cri- (2) In the event of an emergency not teria for selection of guests will be covered by Navy Regulations, the facts their level of activity in civic, profes- and circumstances will be reported immediately 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 pictures renew guests’ feelings of iden- be answered fully, the purposes of the tification with a ship. Guests will be cruise program outlined and the fact advised of areas, however, where pho- stressed that no cost to the govern- tography is prohibited, and security ment is incurred. regulations will be courteously but [41 FR 29101, July 15, 1976, as amended at 44 firmly enforced. FR 6391, Feb. 1, 1979] (E) Guests will be billeted in officers quarters and normally subsisted in the § 705.24 Exhibits. wardroom. It is not necessary that (a) Navy exhibits are representations guests be assigned individual rooms. or collections of naval equipment, Billeting with ship’s officers promotes models, devices and information and mutual understanding, and guests feel orientation material placed on public more closely identified with the ship’s display for information purposes before company. They will be invited to dine audiences at conventions, conferences, at least once in each mess on board, if seminars, demonstrations, exhibits, the length of the cruise permits. fairs, or similar events. Also included Guests will be encouraged to speak are general purpose displays in public freely and mingle with the crew. buildings or public locations. Museums (F) Guests will be accorded privileges also occasionally request a Navy ex- of the cigar mess commissioned offi- hibit on a permanent or temporary cers mess (open) ashore—with the ex- loan basis. ception of package store privileges— (1) Exhibits may be displayed in any and the use of ship’s or Navy Exchange appropriate location or event (includ- laundry and tailor shops. Other Navy ing commercially owned spaces such as Exchange privileges will be limited to shopping centers, malls, etc.) provided

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it is clearly established that such areas (i) All Navy activities will forward are places the general public frequents such requests to the Chief of Informa- and that the exhibit is not for the pur- tion for coordination with the OASD pose of drawing the public to that loca- (PA). tion, and that it is determined that (ii) Subordinate commands of a Uni- participation is in the best interests of fied Command will forward exhibit re- the Department of Defense and the De- quests of the above types to the Unified partment of the Navy. Commander concerned, via the chain of (2) [Reserved] command. (b) Exhibits will be used for the fol- (3) The official OASD(PA) Request lowing purposes only: Form for Armed Forces Participation (1) To inform the public of the Navy’s will be used. See Armed Forces Request mission and operations. Form, § 705.36. (2) To disseminate technical and sci- (4) Requests for exceptions to policy entific information. for exhibit displays should be for- (3) To assist recruiting of personnel warded to the Officer in Charge, Navy for Navy military service and for civil- Recruiting Exhibit Center. ian employment in the Department of (5) Policy guidance on costs is de- the Navy. fined in § 705.19. (c) Exhibit requests and procedures: (6) Occasionally, a project officer will (1) Requests for Navy exhibits, other be assigned to coordinate use of the ex- than local exhibits may be forwarded hibit with the sponsor. to the Navy Recruiting Exhibit Center (i) Project officers are normally com- via the local Navy recruiter with an in- missioned officers, equivalent civilian formation copy to the Chief of Infor- personnel, local recruiters or reserv- mation. The primary mission of the ists, who have been assigned the re- Navy Recruiting Exhibit Center is to sponsibility of coordinating Service support local Navy recruiters. Requests participation in a special event. for exhibits for community relations (ii) The project officer should estab- events will be considered favorably lish immediate liaison with the spon- only when not in conflict with recruit- sor. ing requirements. (iii) The project officer should assist in determining the actual location of (i) Requests for exhibits must be sub- the exhibit, make arrangements for as- mitted well in advance of their pro- sembling and disassembling the exhibit posed dates of use. material, and supervise these oper- (ii) Requests for mobile exhibits re- ations. quiring tractor-trailer transportation (iv) The project officer will ensure should be forwarded prior to November Navy and Department of Defense poli- 15th previous to the year desired. A cies are followed, and will coordinate tour itinerary of mobile exhibits will local news releases concerning Navy then be established for the following participation. year. (iii) The period of time for which an [41 FR 29101, July 15, 1976, as amended at 44 exhibit is authorized will be deter- FR 6391, Feb. 1, 1979] mined by the nature of the event and § 705.25 Navy Exhibit Center. the type of exhibit (e.g., equipment from local resources used for a local (a) The center is a field activity of celebration would normally not be ex- the Chief of Information and is located hibited for more than three days; but, in the Washington Navy Yard. Its pri- a formal exhibit at an exposition might mary mission is to produce, transport remain for the duration of the event). and display U.S. Navy exhibits (2) The office of the Assistant Sec- throughout the United States. It also retary of Defense (Public Affairs) is the facilitates assignments of Navy combat approving authority for Navy exhibits artists and, additionally, produces ex- in events of international or national hibits for its own tours and for short- scope, or those requiring major coordi- term loans to naval commands. nation among the Armed Forces, or (b) [Reserved] with other agencies of the Federal Gov- [41 FR 29101, July 15, 1976, as amended at 44 ernment. FR 6391, Feb. 1, 1979]

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§ 705.26 Exhibit availability report. tional travel orders to each artist approved. (a) A center index of exhibits which (3) The following policy pertains: are available at the local level in each (i) All finished art portraying the Naval District is maintained by the ex- Navy and produced by Navy artists on hibit center. To achieve maximum ef- active duty for that purpose and by fectiveness for an overall integrated guest artists working under invita- program, an up-to-date registry of all tional travel orders becomes the prop- exhibits is required. erty of the Department of the Navy. (b) A current inventory of exhibits (ii) Civilian artists selected to paint headquartered in Washington, DC, and Navy life through cooperation of a pri- managed by the Navy Recruiting Ex- vate sponsor and the Chief of Informa- hibit Center for scheduling purposes tion may be authorized by the Chief of may be obtained by writing to: Officer- Information or the Office of the Sec- in-Charge, Navy Recruiting Exhibit retary of Defense to retain their works. Center, Washington Navy Yard, Wash- (iii) Paintings, sketches, drawings ington, DC 20374. and other forms of artwork will not be [41 FR 29101, July 15, 1976, as amended at 44 accepted by the Department of the FR 6391, Feb. 1, 1979] Navy unless all reproduction rights are surrendered and unless they become §§ 705.27–705.28 [Reserved] the permanent property of the Depart- ment of the Navy. § 705.29 Navy Art Collection. (iv) Requests for reproduction of (a) The U.S. Navy has continued to combat art for use in advertising or record its military actions, explo- publication will be directed to the rations, launchings, etc., in fine art Chief of Information. form since before World War II. The (b) Responsibilities: present Navy Combat Art Collection (1) The Chief of Information exercises contains over 4,000 paintings and supervision and control of the Navy sketches. A significant number of new Art Program and issues SECNAV invi- works is being added each year. The tational travel orders and letters of in- combat artists of World War II have vitation to artists selected for assign- been replaced by civilian artists who ment. witness today’s Navy in action, record (2) When directed by the Chief of In- their impressions, and donate their formation or other appropriate Navy works of art to the Department of the authority, a NACAL project officer will Navy. perform the following functions: (1) The voluntary services of most of (i) Act as a local liaison officer for the artists are arranged through the the NACAL Program. Navy Art Cooperation and Liaison (ii) Assist NACAL artists on assign- Committee (NACAL) which operates in ments within his area. close cooperation with the Salmagundi (3) The Curator Navy Combat Art Club of New York City and the Munic- Center, in coordination with the Chief ipal Art Department of the City of Los of Information, will: Angeles. (i) Plan trips for the NACAL Pro- (2) The Chief of Information has es- gram. tablished liaison with the Salmagundi (ii) Approve requests for art displays. Club in order to maintain a continuing (iii) Provide logistic support for the historical record of the Navy. Orga- maintenance, storage, shipment and nized in 1871, the Salmagundi Club is display of the Navy Combat Art Pro- the oldest club of professional artists gram. in the United States. The Club ap- (c) Requests for art displays should pointed a Navy Art Cooperation and be forwarded to the Director, Commu- Liaison (NACAL) Committee to advise nity Relations Division, Office of Infor- the Navy on art matters and to nomi- mation, Navy Department, Wash- nate artists for assignment to paint ington, DC 20350. Navy activities through the world. The (d) Exhibition of Navy Art: Chief of Information reviews the nomi- (1) Operation Palette I’’ is a carefully nations, and issues SECNAV invita- selected group of 75 to 100 combat art

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paintings depicting Navy and Marine (e) Navy Combat Art Lithograph Pro- Corps activities during World War II. gram: The schedule of ‘‘Operation Palette I’’ (1) This program makes available full is promulgated by the Officer-in- color, high quality lithographs which Charge, Navy Recruiting Exhibit Cen- are faithful reproductions of the origi- ter and supervised by the Chief of In- nal artwork on quality paper of se- formation, with the concurrence of Dis- lected works of art from the Navy Art trict Commandants. Schedules are ar- Collection. ranged so that the exhibition travels (2) Additional information and order- within a particular Naval District for ing details are contained in CHINFO several months at a time. District NOTICE 5605, which is issued periodi- Commandants designate project offi- cally. cers for each city where ‘‘Operation [41 FR 29101, July 15, 1976, as amended at 44 Palette I’’ is exhibited. The project of- FR 6391, Feb. 1, 1979] ficer makes all arrangements, including suitable location, publicity and § 705.30 Aerospace Education Work- personnel to assist the chief petty offi- shop. cer who travels with the collection. (a) This program is devised by the Promotional kits are provided by the Navy to give students at colleges and Officer-in-Charge, Navy Recruiting Ex- universities conducting teacher train- hibit Center. Requests for exhibitions ing a comprehensive background in the are not desired, since the collection al- field of aviation. The teachers in turn ways travels on a prearranged tour. integrate this knowledge into their (2) ‘‘Operation Palette II’’ consists of education programs. 75 to 100 paintings representative of the (b) Appropriate commands are en- worldwide operations of the contem- couraged to provide assistance to edu- porary Navy and Marine Corps * * * cational institutions sponsoring the the Navy today * * *, and travels on workshop program: Provided, That such prearranged tours similar to ‘‘Oper- support does not interfere with the ation Palette I.’’ command’s primary mission and that (3) Other exhibitions of original such cooperation involves no addi- paintings from the Combat Art Collec- tional expense to the government. tion may be scheduled on request by ei- (c) The Chief of Naval Operations has ther Navy commands or civilian art cognizance of all assistance provided groups. Requests should be directed to by the Navy to all Aerospace Edu- the Director, Community Relations Di- cation Workshop program. A summary vision, Office of Information, Navy De- report of local command participation partment, Washington, DC 20350 and in Aerospace projects will be submitted contain the following: to the Chief of Naval Operations via (i) The occasion. the appropriate chain of command. In- (ii) Inclusive dates. (Not less than 10 formation copies of such reports will be days or more than 90 days sub-cus- sent to Commander, Navy Recruiting tody.) Command and the Chief of Informa- (iii) Expected attendance and type of tion. For further information see publicity planned. OPNAVINST 5726.1C. (iv) Amount of space allotted. (v) If Navy-sponsored show, certifi- § 705.31 USS Arizona Memorial, Pearl cation that 24-hour security will be Harbor. provided for the paintings while in cus- (a) Limited space and the desirability tody. of keeping the Memorial simple and (vi) If civilian-sponsored show, state- dignified require the following prac- ment that transportation and insur- tices to be observed: ance requirements will be met. (Phys- (1) Rendering of formal ceremonies ical security must be available for ex- on the USS Arizona Memorial will be hibit, with an attendant on duty during confined to Memorial Day. open hours and locked building or (2) Observances on December 7, or other means of protecting exhibit when any other date, at the request of indi- closed to the public.) viduals or organizations, will consist of

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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 (b) Events which are appropriate for (Community Chest). As a minimum, aviation participation include: Dedica- the sponsor must agree to provide at tion of airports; aviation shows; air- least half of the profit above costs to craft exposition; air fairs; recruiting the Combined Federal or United Givers programs; civic events which con- Campaigns to receive Armed Forces tribute to the public knowledge of support. naval aviation equipment and capabili- (e) Request form. This form is used to ties and to the advancement of general request military flight and parachute aviation; public observances of certain demonstration team participation in national holidays (Armed Forces Day, public events. The information is re- Veterans Day, Memorial Day and Inde- quired to evaluate the event for appro- pendence Day); national conventions of priateness and compliance with De- major veterans organizations; memo- partment of Defense policies and for rial services for deceased, nationally coordination with the units involved. recognized dignitaries; and receptions for foreign dignitaries. GENERAL (c) Support of Armed Forces recruit- 1. Title of Event lllllllllllllll ing is the primary purpose of military Town or City: lllllll State: lllll flight and parachute demonstration Date: llllllll Time—From: lllll teams. Armed Forces recruiting teams To: llll Place: (Airport, etc.) llllll are available to assist sponsors in co- 2. Sponsor: lllllllllllllllll ordinating advance publicity and infor- 3. The sponsor (is) (is not) a civic organiza- mation coverage to insure maximum tion and the event (does) (does not) have the exposure for the demonstration team official backing of the mayor. and the event. This assistence is at no 4. The sponsoring organization (does) (does additional expense to the sponsor; how- not) exclude any person from its membership or practice any form of discrimination in its ever, the sponsor is required to give functins, based on race, creed, color or na- full support to the recruiting effort and tional origin. to cooperate fully with local service of- 5. Sponsor’s representative authorized to ficials. Such support could include (but complete arrangements for Armed Forces

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participation and responsible for reimburs- Parachute Team Demonstration U.S. ing Department of Defense for accrued ex- Army Golden Knights: (Cost is $25.00 per penses when required: day per man for each day required to support your event. Team consists of Name: llllllllllllllllllll 10–14 personnel.) ...... Address: lllllllllllllllllll (Other) ...... City, State: lllllllll Zip: lllll 2. Flight and/or Parachute Team demonstra- Telephone: (Office) llll (AC) llllll tions are restricted to appropriate events llllllllllllllllllllllll at airports, over open bodies of water, or (home) llllllllll (AC) lllllll over suitable open areas of land. Please llllllllllllllllllllllll give the specific location of your event ll 6. Purpose of this event (explain fully): lll llllllllllllllllllllllll llllllllllllllllllllllll If an airport, name of airdrome facility and 7. Expected attendance: lllllllllll longest usable landing runway. Airport: l 8. Is this event being used to promote funds llllllllllllllllllllllll for any purpose? lllllllllllll Runway data:llllllllllllllfeet. 9. Admission charge: llllllllllll 3. Flyovers, Flight and Parachute Team ‘‘Charge for seating: llllllllllll demonstrations require that sponsors se- 10. Disposition of profits which may accrue: cure FAA clearance or waiver. Will steps be taken by sponsor to accomplish this at 11. Will admission, seating and all other ac- least sixty days prior to the event? llll commodations and facilities connected 4. Flight and Parachute Team demonstra- with the event be available to all persons tions must adhere to FAA regulations without regard to race, creed, color or na- which specify that spectators not be per- tional origin? lllllllllllllll mitted within 1500 feet of an area over 12. Will the standard Military Services al- which the flight demonstration takes lowance for quarters and meals be provided place, or 250 feet of the jump area over by the sponsor for Armed Forces partici- which parachutists are performing. What pants? lllllllllllllllllll type of crowd control is planned? lllll 13. Will transportation at sponsor’s expense llllllllllllllllllllllll be proviced for Armed Forces participants 5. Flight and Parachute Team demonstra- between the site of this event and hotel? tions require that an ambulance and a doc- llllllllllllllllllllllll tor be on the site during the demonstra- 14. Will telephone facilities, at sponsor’s ex- tion. Will this requirement be met? lll pense, be made available for necessary offi- 6. Flight and Parachute Team demonstra- cial communications regarding the event? tions require that the sponsor provide a re- llllllllllllllllllllllll cent aerial photograph, taken vertically 15. It may be necessary for representatives of from an altitude of 5,000 feet or higher, to the requested unit to visit the site prior to the team(s) giving the demonstration. Will the event. Will transportation, meals and this requirement be met? lllllllll hotel accommodations be provided by the 7. Flight Team demonstrations and Static sponsor? llllllllllllllllll Aircraft displays require that the sponsor llllllllllllllllllllllll provide suitable aircraft fuel (JP jet fuel 16. Please describe the space which will be or aviation gas, as appropriate) and pay provided to recruiters: llllllllll the cost of transporting and handling this llllllllllllllllllllllll fuel, if it is not available at the staging llllllllllllllllllllllll airport under military contract prices. llllllllllllllllllllllll Will this requirement be met? llllll 17. Designate charity beneficiary(s): llll 8. Flight Team demonstrations and Static llllllllllllllllllllllll Aircraft displays require mobile fire- fighting, crash and ground-to-air commu- FLIGHT TEAM, PARACHUTE TEAM, FLYOVERS, nications equipment at the demonstration STATICS site. Will this requirement be met? llll 9. Flight Teams and Static Aircraft displays 1. This request is for (check appropriate require that the sponsor provide guards for line): the aircraft that land and are parked at Flight Team Demonstration ...... the site during their entire stay. Will this U.S. Navy Blue Angels ...... requirement be met? lllllllllll U.S. Air Force Thunderbirds. (Cost for ei- 10. Parachute Team demonstrations may re- ther team is $1500.00 for each day team quire that the sponsor arrange aircraft scheduled at your event.) ...... Aircraft Flyover: (No cost to sponsor.) ...... transportation from the team’s home base Static Aircraft: (Cost is $25.00 per day per to the location of the event, for use as a crewmember.) ...... jump platform and return to the home U.S. Army Silver Eagles: (Cost for this base. Will this requirement be met, if nec- team is $750.00 for each day team sched- essary? llllllllllllllllll uled at your event.) ...... llllllllllllllllllllllll 159

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11. Name and address of any Armed Forces not considered an appropriate event for representative or government official with authorizing flyover support. The static whom you have discussed possible partici- display of aircraft is the ground display pation: llllllllllllllllll of any military aircraft and its related llllllllllllllllllllllll 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 ties, aviation shows, expositions, and costs involved prior to final commitments. 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 Return this form to: llllllllllll 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 parachute demonstration is an exhi- group is comprised of fourteen mem- bition of free-fall and precision landing bers: Nine jumpers, three aircraft crew- techniques by the official DOD para- men, one ground controller, and a nar- chute team, the U.S. Army Golden rator. The sponsor will be advised by Knights. Other parachute demonstra- the Golden Knights in advance of the tions can be performed by the U.S. costs related to his event for which the Navy Parachute Team, or another un- government must be reimbursed. The official team or sports parachute club United States Army Silver Eagles heli- representing the Department of De- copter team, composed of seven heli- fense. A flyover is a flight of not more copters, performs precision formation than four aircraft over a fixed point at manuevers and solo helicopter aero- a specific time and does not involve batics to demonstrate the capabilities precision maneuvers or demonstra- of modern helicopters and the skill of tions. Flyovers are authorized for cer- Army aviators. The Silver Eagles pertain events when the presence of formance lasts about 30 minutes and is Armed Forces aircraft overhead would conducted entirely in full view of spec- contribute to the effectiveness of the tators on the crowd line. The cost for event based on a direct correlation be- the team is $750 for each day a dem- tween the event and the aircraft. Fly- onstration is scheduled. The sponsor overs can also be authorized for occa- should make a check payable to the sions primarily designed to encourage Treasurer of the United States for the the advancement of aviation and which required amount and present it to the are of more than local interest. Fly- appropriate demonstration team com- overs by any of the official DOD flight mander in advance of the scheduled teams are not authorized. Parades are event.

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(2) Costs associated with static air- However, the sponsor may choose to craft are normally $25 per day for each transport military contract fuel from a crew member plus possible fuel require- military base or a commercial airport ments discussed below. Charges for any having a U.S. Government into-plane other military parachuting demonstra- contract. In this case, his cost would be tion (i.e., U.S. Navy Parachute Team, only the transporting and handling of local Armed Forces sport parachute this fuel to the show site. clubs, etc.) will depend on the number (5) The Department of Defense no of personnel and transportation in- longer requires the sponsor to provide volved. Checks payable to the Treas- the Department with a public liability urer of the United States should be and property damage insurance policy. made available to the appropriate air- This should in no way deter the spon- craft commander for static displays or sor from obtaining such liability and parachute team commander upon ar- property damage insurance he feels is rival at the event. necessary for his own protection. Due (i) As noted in the Department of De- to the costs that could accrue to the fense request form, the sponsor is re- sponsor in case of cancellations be- quired to pay per diem costs for team cause of inclement weather, the spon- and static display crew members ex- sor may wish to consider rain insur- cept for flyovers or aircraft demonstra- ance to protect his investment. Pre- tions not involving landing. vious sponsors have advised us that (3) These costs are binding after a such insurance is available from most team or crew personnel have arrived at commercial companies. the show site, even though weather (i) Other information. (1) Flight and/or conditions or other unforeseen cir- parachute team demonstrations are re- cumstances force the event to be can- stricted to appropriate events at air- celled. These funds provided by the ports, over open bodies of water, or sponsor will be utilized by team mem- over suitable open areas of land. For bers or crew personnel for paying hous- the U.S. Air Force Thunderbirds or ing and subsistence costs. The actual U.S. Navy Blue Angels to operate from breakdown of the per diem involved is an airport show site, the following $13.20 for housing, $9.30 for subsistence, operational requirements must be met: and $2.50 for incidental expenses. In (i) Minimum useable runway length those locations where housing and sub- for the Thunderbirds is 5000 feet by 150 sistence cannot be procured for these feet in width. amounts, it will be the responsibility (ii) Minimum useable runway length of the sponsor to absorb the additional for the Blue Angels is 6000 feet by 150 cost. As stated, these costs will cover feet in width. participation but does not include cer- (iii) Minimum single landing gear tain ground support requirements (i.e., load bearing capacity for Thunderbirds ground transportation, telephone, etc.) is 45,000 pounds; for Blue Angels, 21,000 to be furnished by a sponsor as out- pounds. Tandem landing gear load lined in a team support packet. bearing capacity is 155,000 pounds for (4) Other costs that could be incurred Blue Angels and Thunderbirds. by the sponsor are in the area of the (2) A staged performance may not be sponsor’s agreement to provide suit- given if the location planned for the able aircraft fuel (defined as JP jet fuel show site does not meet these mini- or aviation gas and lubricants) at U.S. mums. The maximum distance for a Government contract prices. Where staged performance’’ under normal fuel is available from local military conditions is 50 nautical miles. It stocks—usually military installa- should be noted that staged perform- tions—or when fuel is available from ances are seldom authorized since the commercial into-plane contract loca- recruiting potential is reduced at such tions, the U.S. Government will pay all events. fuel costs. If military contract fuel is (3) The type and number of static not available at the show site, the and/or flyover aircraft which may be sponsor will be required to pay all assigned is entirely dependent upon the costs above the contract price and that Military Services’ capability to provide price charged by the local supplier. such resources at the time of your

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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 participation has also been scheduled, on the days a flight team is partici- prize monies must come from sources pating. A flyover is not authorized other than admission charges. when a flight team is participating un- (9) Flight team, parachute and air- less it can be provided by a locally- craft demonstrations also require that based National Guard or Reserve com- the sponsor provide: (i) Recent aerial ponent. photograph of the site; (ii) an ambu- (6) Participation by the U.S. Navy lance and doctor at the site; and (iii) Blue Angels and the U.S. Air Force Guards for the Armed Forces aircraft Thunderbirds is normally limited to during their entire stay. The aerial two consecutive years in any one photograph should be recent, taken event. This usually involves one ap- vertically from at least 5,000 feet. pearance by each of the two flight (10) Maximum advantage of Armed teams. This provision may be waived Forces recruiting will be taken at ap- when other appropriate requests have propriate events in the public domain not been received, when the team is where demonstrations by military air- performing in the same geographical craft and parachutists have been au- area and has open dates or when the thorized. event is national or international in (11) Exception to the policies con- nature and participation would be in tained herein will only be considered the best interests of Department of De- by OASD(PA) on events of national or fense. Participation in an event is nor- international significance. mally limited to two days unless a (12) Department of Defense hosts a third day can be included without pre- scheduling conference in mid-December empting other requests. each year to prepare U.S. Air Force (7) Sponsors are required to obtain a Thunderbirds, U.S. Navy Blue Angels, Federal Aviation Agency (FAA) waiver U.S. Army Golden Knights and U.S. for any demonstration by military air- Army Silver Eagles participation craft and/or parachutists in the public schedules for the ensuing year. All re- domain. The final authorization for quests for such demonstrations from such Armed Forces participation sponsors should reach OASD(PA) prior hinges upon the sponsor securing this to the middle of November each year to waiver far enough in advance to permit be considered at this conference. In adequate planning (normally not later order to accommodate many requests than 60 days prior to the event). Fur- Department of Defense receives for ther guidance on the details of obtain- other parachuting demonstrations, air- ing this waiver will be contained in the craft demonstrations, static aircraft team support packet or FAA. FAA reg- displays, and flyovers, each request ulations require that spectators be con- must be received by OASD(PA) a min- fined 1500 feet from a flight or aircraft imum of 30 days in advance of the demonstration and 250 feet from a event and preferably 60 days in ad- parachute demonstration. vance.

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(13) If there are any points that a (i) Official government functions in- member of the public might wish to clude those in which senior officials of have clarified, contact Chief, Aerial the Federal government are involved in Events Branch, OASD(PA), Room the performance of their official duties. 1E790, The Pentagon, Washington, DC (ii) Official military functions in- 20301. Telephone: AC (202) 695–6795 or clude social activities held on military 695–9900. installations (or off when the Military Service certifies that suitable facilities § 705.33 Participation by Armed are not available on post) which are Forces bands, choral groups, and troops in the public domain. sponsored by the Military Services, have as their principal purpose the pro- (a) Military musical participation in motion of esprit de corps, and are con- public events which otherwise meet the ducted primarily for active duty per- criteria outlined herein will be limited sonnel and their guests. to patriotic programs as opposed to (iii) Official civic functions include pure entertainment and will not dupli- such State, county or municipal events cate a performance within the capa- as inaugurals, dedication of public bility of a civilian group. For example, buildings and projects, the convening music to accompany the presentation of legislative bodies, and ceremonies of the national colors, or a performance of military or patriotic music by for officially invited government visi- a military band, drum and bugle corps tors. or choral group may be authorized; (2) Armed Forces musical units may background, dinner, dance or other so- also be authorized to provide patriotic cial music is considered ‘‘entertain- and military programs at national con- ment.’’ ventions and meetings of nationally- (b) Requests received for military recognized civic, patriotic and veterans musical participation in appropriate organizations. events in the civilian domain must in- (d) Bands, drill teams and other units clude an indication from the sponsor can normally participate at no cost to that there is no conflict with the local the sponsor if the event is within the civilian musicians concerning the ap- installation’s immediate community pearance of Navy musicians. A state- relations area (approximately 100-mile ment to this effect from the cognizant radius). local musicians’ union must be ob- (1) Normally, not more than one band tained by the sponsor and attached to or other musical unit will be author- his request. ized for a parade in the civilian do- (c) Armed Forces musical units may main. This guidance intended to assure be authorized to provide certain speci- widest possible participation in public fied musical programs in the public do- events of local interest (particularly on main. The performance must not place national holidays) does not apply to military musicians in competition national convention of veterans’ with professional civilian musicians. groups or other events having national Background, dinner, dance or other so- significance. cial music cannot be authorized. The (2) All Armed Forces participation in specified programs which may be au- international and national events, and thorized usually include a short open- in the Washington, DC area, must be ing or closing patriotic presentation. authorized by the Assistant Secretary Musical selections normally consist of of Defense (Public Affairs). a medley of military or patriotic songs, honors to the President or Vice Presi- (3) Requests for Armed Forces musi- dent (if he is there), or music to accom- cal or troop units when no military in- pany the presentation of colors by a stallation is accessible, or for the Color Detail. Washington, DC-based ceremonial (1) Armed Forces musical units may bands or troop units (when the event is be authorized to participate in official outside the Washington, DC area), government, military and civic func- should be addressed to the parent Serv- tions. ice of the unit:

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(I) U.S. ARMY the authority of local military com- Chief of Public Information, Department of manders, and requests for participation the Army, Washington, DC 20310. should be made directly to those local military installations. All requests (II) U.S. NAVY should be submitted no earlier than 60 Chief of Information, Code OI–321, Depart- days and preferably no later than 45 ment of the Navy, Washington, DC 20350. days prior to the event.

(III) U.S. AIR FORCE § 705.34 Other special events. Director of Information, Secretary of the Air (a) Ship visits. Requests for visits gen- Force, Community Relations Division, Washington, DC 20330. erally originate with civic groups desiring Navy participation in local (IV) U.S. MARINE CORPS 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- of their interest in a particular event. ington, DC 20380. 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 respective 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. (iv) An admission charge is levied on These visits will be conducted in ac- the public primarily to see participa- cordance with instructions issued by tion by an Armed Forces unit. Fleet and Force Commanders, District (v) There is fund-raising of any type Commandants, or other cognizant au- connected with the event, unless all thority. profits are to be donated to a charity (ii) Casual visits are visits to ships or which is one of the consolidated pro- stations by individuals or specific grams recognized by the Federal Serv- groups, as differentiated from the gen- ices Fund-Raising Program. These are eral public. Details and procedures con- the United Givers Fund Community cerning these visits are a matter of Chest, National Health Agencies (as a command discretion. group), the International Service Agen- (iii) Tours are occasions when a ship cies, and the American Red Cross or station is host to a specific group on (when not included in a consolidated a scheduled date. Some of the larger campaign). The Military Services’ Wel- shore commands also regularly sched- fare Societies (Army Emergency Re- ule one or more sightseeing type tours lief, Navy Relief and Air Force Aid So- daily during seasons when many vaca- ciety) are also included. tioners ask to visit the command. (5) Sponsors of an event must agree (2) General rules. Prior approval for to reimburse the Military Services con- general visiting or Open House at any cerned for transportation and per diem time other than civic-sponsored public when participation is authorized at no observances and official ceremonies for additional cost to the government. Armed Forces Day, memorial Day, (6) Participation by Armed Forces Independence Day, and Veterans Day, musical units in other areas is within and for observances in overseas areas

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of similar significant holidays, will be authorized campaigns. Navy support of requested as follows: Fleet units vis- fund-raising events or projects for a iting U.S. ports, from Senior Officer single cause, even though the cause is present Afloat; fleet units visiting for- a member of one of the federated, joint eign ports, from commander ordering or authorized campaigns, or donates in the visit; shore stations and district part to one of several of the recognized vessels in the United States, from Dis- campaigns, is not authorized by De- trict Commandants; and overseas shore partment of Defense. stations, from the naval area com- (2) Navy support for a single-cause mander. fund-raising event may be authorized if (c) Official functions. (1) Navy units the event is: may be authorized by local commanding officers to participate in offi- (i) In support of Navy recruiting ob- cial government military and civic jectives; functions, except in the Washington DC (ii) Supported by a letter indicating area where OASD(PA) retains author- the local United Way representative ity. has no objection; and (2) Official government functions in- (iii) Approved by the local Navy clude those in which senior officials of Commander as a single-cause charity the federal government are involved in which has broad local benefit. the performance of their official duties. [41 FR 29101, July 15, 1976, as amended at 44 (3) Official military functions include FR 6391, Feb. 1, 1979] social activities held on military installations (or off, when it is certified § 705.35 Armed Forces participation in that suitable facilities are not avail- events in the public domain. able on base), which are sponsored by the Navy, have as their principal pur- (a) Requests for bands, troops, units, pose the promotion of esprit de corps, teams, exhibits and other Armed and are conducted primarily for active Forces participation should be ad- duty personnel and their guests. dressed to the nearest military instal- (4) Official civic functions include lation. Local commanders have re- such state, county or municipal events sources which they can commit to ap- as inaugurals, dedications of public propriate events if mission require- buildings and projects, and convening ments permit. If no military installa- of legislative bodies and ceremonies for tion is accessible, or if resources re- officially invited government visitors. quested are not available locally or re- (5) Overseas, similar functions at- quire approval by higher authorities, a tended by comparable host-country of- standard Department of Defense Re- ficials in their official capacities might quest Form should be completed. This also be considered appropriate for Navy form is used to evaluate the request, participation. determine appropriateness of the event (d) A parade which is sponsored by and compliance with Department of the community as a whole (rather than Defense policies, and eliminate re- by a single commercial venture) and peated correspondence. The request held on a Sunday or holiday or at a form should be returned to the office or time when shops are closed for business military command from which it was may be a public event for which par- received unless another address is indi- ticipation could properly be authorized; representation by individual com- cated. mercial ventures in such parades need (b) Basic criteria governing Armed not be a bar to Navy participation as Forces participation in public events long as the emphasis is planned and have been developed by the Depart- placed on the civic rather than comment of Defense to ensure compliance mercial aspects. Such participation with public law, to assure equitable will be at no additional cost to the gov- distribution of resources to as many ernment. appropriate events as possible, and to (e) Fund-raising events. (1) Navy sup- avoid excessive disruption of primary port of fund-raising events must be training and operational missions of limited to recognized, joint or other the Military Services. the following

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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 proof 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 (ii) Be associated with the solicita- of electricity, or utility or janitorial tion of votes in a political election. costs. Sites such as commercial theaters or (7) The duration of participation by department stores, churches or fra- military units in any one event is lim- ternal halls; and events such as ited in the interests of proper utiliza- testimonials to private individuals or tion and equitable distribution of sectarian religious services, are gen- Armed Forces manpower and resources. erally inappropriate for Armed Forces While an exhibit might be scheduled participation. for the duration of an event, a unit (3) Participation by the Armed such as a military band is limited to Forces in any event or activity may be three days. authorized only if admission, seating (8) Armed Forces participation in and all other accommodations and fa- professional sports events and post-sea- cilities are available to all without re- son bowl games will normally be au- gard to race, creed, color or national thorized at no additional cost to the origin, and only if the sponsoring orga- government, will emphasize joint Serv- nization does not exclude any form of ice activity and must support recruit- discrimination based on race, creed, ing programs. Participation in beauty color or national origin. This does not contests, fashion shows, pageants, bar participation in events sponsored Christmas parades, and motion picture by nationally-recognized veteran’s or- premieres is not authorized since mili- ganizations when the program is ori- tary support would violate policy and ented toward the veterans’ interests, appropriateness. nor does it bar participation in nonpublic school events when the program § 705.36 Government transportation of is directed toward education or recruit- civilians for public affairs purposes. ing. (a) General policy. (1) Regulations on (i) No admission charge may be lev- transportation of civilians vary accord- ied on the public solely to see an ing to whether: Armed Forces demonstration, unit or (i) The civilians are news media rep- exhibit. When admission is charged, resentatives or not.

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(ii) The travel is local or nonlocal (b) Definition of local v. nonlocal trav- (see paragraph (b) of this section). el. (1) Local travel is travel within the (iii) The purpose of the travel is to immediate vicinity of the command get to a desired destination or is to ob- concerned in connection with a public serve the Navy at first hand. affairs program of local interest only. (2) Authority for embarkation of in- (For air travel within the continental dividuals in naval vessels and military U.S., about 150 miles or less is gen- aircraft is vested in the Chief of Naval erally considered local.) Operations by § 700.710 of this chapter. (2) Nonlocal travel is that conducted Nothing in this part shall be construed in connection with a public affairs pro- as limiting his authority in this re- gram affecting more than one Service, gard. geographic area or major command, (3) The following policy has been es- usually of primary concern to higher tablished by DOD for providing all authority. types of Navy transportation to non- (c) Transportation of news media rep- Navy civilians. resentatives. (1) This section applies to (i) Military transport facilities shall media representatives who are em- not be placed in a position of competi- barked for the purpose of news gath- tion with U.S. commercial carriers. ering or of traveling to an area in order (A) When embarkation of a newsman to cover a news event. It does not apply is necessary for him to obtain news to: material about a ship, aircraft, cargo (i) Correspondents when members of or embarked personnel, or when he is groups embarked as regular cruise invited to report on a matter of special guests of the Navy. interest to the Navy, it is not consid- (ii) Casual trips by correspondents to ered that the transportation furnished ships in port or to shore stations in him is in competition with commercial CONUS. Such visits may be authorized transport. by officers in command or higher au- (B) An exception is also made for thority in accordance with instructions short trips between an airport (or other promulgated by the Chief of Naval Op- transportation center) and the com- erations. Written orders are not re- mand. Cars and buses within the required. sources of the command may be used for meeting guests or taking them to (2) Local travel. Commanding officers make their travel connections. at all levels are authorized (under De- (ii) When authorization is requested fense Department policy) to approve for travel which is of interest to or will local travel for public affairs purposes affect more than one command or within the scope of the mission and re- Service, the approving authority will sponsibilities of their command, if: coordinate the request with all other (i) Public interest in the public af- interested commands, Services and fairs purpose involved is confined pri- Agencies. marily to the vicinity of that com- (iii) Travel in connection with any mand. public affairs program arranged by the (ii) The travel is being provided for Navy jointly with another Federal De- the benefit of local media and meets a partment or Agency or a foreign gov- naval public affairs objective. ernment will be authorized only by the (iii) Scheduled commercial air trans- Assistant Secretary of Defense (Public portation is not readily available. Affairs, or those to whom he has dele- (iv) The aircraft to be used is a heli- gated this authority. Navy commands copter, or multiengine dual piloted air- desiring authorization of such travel craft, and is within the resources of the will forward the request to the Chief of host command on a not-to-interfere Information. basis. This provision does not apply to (iv) If a request for travel for orientation flights. nonlocal public affairs purposes is dis- (3) Nonlocal travel. (i) Requests for approved, sufficient reasons should be nonlocal travel will be submitted to provided so that the action is clearly the Chief of Information, who will for- understood by the individual or group ward them with his recommendations concerned. to the Chief of Naval Operations and/or

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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 overseas should be made at least three and must be borne by the correspond- weeks prior to the date required and ents. should be addressed to the Assistant Secretary of Defense (Public Affairs) (ii) Space-required travel may be au- via the Chief of Information or Unified thorized when sufficiently in the inter- Commander, as appropriate. The re- est of the Navy, and the charge may be quests should include: borne by the Navy. (A) A statement that the cor- (iii) In either case, determination of respondent is a full-time employee, or Navy interests will be made by the has a specific assignment, and that the Chief of Information, guided by the trip is for the purpose of news gath- transportation policy of the Chief of ering. Naval Operations, whose approval of (B) Appropriate date of entry into such embarkation is required. area, port of entry, method of travel, (iv) Requests for such travel will be proposed duration of visit and travel submitted to the Chief of Information, termination date. who will coordinate with the Chief of (C) Assurance that the correspondent Naval Operations and/or the Assistant will observe currency control regula- Secretary of Defense (Public Affairs), tions, and sponsoring agency will guar- as appropriate. antee financial obligations incurred. (8) Point to point transportation (5) Embarkation of male correspondents within the continental United States between ports within CONUS. (i) Male in naval aircraft other than those oper- correspondents may be embarked in ated by the Military Airlift Command. naval ships for passage between ports (i) SECNAVINST 4630.2A contains within the area of a single Fleet com- guidance for travel in military aircraft mand for the purpose of news gathering other than those operated by the Mili- at the discretion of the Sea Frontier tary Airlift Command. Commander, Commandants of the (ii) Naval activities desiring to ar- Naval Districts, the Chief of naval Air range such transportation will address Training, Fleet, Force and Type com- requests via the chain of command to manders and flag officers afloat who the operational command of the lowest

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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: (d) Transportation of other civilians. (1) (A) Prepare travel orders. Although groups normally provide (B) Ensure that any waiver forms, as their own transportation to Navy com- may be required by governing direc- mands, Navy transportation may be tives, are executed. authorized when: (9) Embarkation of news media rep- (i) Commercial transport is not avail- resentatives of foreign citizenship: able. (i) Requests from foreign news media (ii) A professional group visit has representatives to cruise with units of been solicited by the Navy, such as par- the U.S. Navy are usually made to the ticipants in the Naval Academy Infor- nearest U.S. military installation mation Program (‘‘Blue and Gold’’) or known to the correspondent, and are educators invited to an Aerospace Edu- often not made in the proper chain of cation Workshop. command to the Fleet Commander un- (2) Requests for nonlocal transpor- less authorized to effect arrangements tation under the above circumstances for an underway cruise. will be made to the Chief of Naval Op- (A) if the request is received by a erations. command which is not a subordinate of (3) Carrier-on-board-delivery (COD) the Fleet Commander concerned, it flights and helicopters flights to ships will be forwarded to the U.S. Naval At- are considered local transportation. tache assigned to the foreign news- (4) When units or areas of a Unified man’s country. The Attache will then Command are involved in the public af- forward the request to the appropriate fairs program in connection with which Fleet Commander, with his rec- travel authorization is requested by a ommendations and the result of a brief Navy command which is not a compo- background check on the newsman and nent of the Unified Command con- his employer. cerned, coordination will be effected by (B) If the request is received by a the host command, through command subordinate of the appropriate Fleet channels, via the Chief of Information, Commander, it may be forwarded di- to the Assistant Secretary of Defense rectly to the latter, but the U.S. Naval (Public Affairs), who—as appropriate— Attache in the newsman’s country will will consult with the Unified Com- be given the opportunity to comment mander concerned. on the proposed embarkation. (e) Special programs. (1) Cruises are (ii) Naval commands should not in- discussed in Chapter 6, section 0604, troduce an embarked third-party (i.e., para. 1 of the Navy Public Affairs Reg- a foreign media representative) into a ulations. foreign country other than his own (2) Embarkation of news media rep- without first obtaining appropriate resentatives, especially on operations clearance from the country to be vis- and exercises, is discussed in Chapter 4, ited. Approval for entry should be for- section 0405, paragraph 4 of the Navy warded via appropriate command chan- Public Affairs Regulations. nels to the cognizant U.S. Naval Atta- (3) Other programs subject to special che. requirements or which have had excep- (10) Security considerations. (i) No tions authorized for them include: media representative known to be af- (i) Naval Air Training Command Ci- filiated with a group advocating the vilian Orientation Cruise Program, overthrow of the U.S. government will conducted by the Chief of Naval Air be permitted aboard naval ships or sta- Training. tions. (ii) Joint Civilian Orientation Con- (ii) If security review is directed, the ference, conducted by the Assistant reason will be made clear to the cor- Secretary of Defense (Public Affairs). respondent prior to embarkation. News (iii) Orientation flights in govern- media people refusing to agree to ob- ment aircraft, conducted in accordance serve security regulations may have with OPNAVINST 37107H.

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(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 Sea Cadet Corps of the Navy League. tificate of Commendation to members (A) Flights must be in Navy multien- of special committees and groups; and gine, transport type craft. the Navy Certificate of Merit to orga- (B) Point-to-point flights on a space- nizations and associations. required basis are governed by an an- (2) Details are given in SECNAVINST nual quota set by the Chief of Naval 5061.12. Operations. Space-available transpor- (3) Nominations for awards to mili- tation is authorized and will not be tary personnel are considered by the charged against this quota if it will not Board of Decorations and Medals, in result in delays of takeoffs or a change accordance with SECNAVINST in the itinerary planned for the pri- 1650.24A. mary mission. (4) Nominations for honorary awards (C) Flights must not interfere with to Department of the Navy civilian em- operational commitments or training ployees are considered by the Distin- or results in additional expense to the guished Civilian Service Awards Panel. government. (See Civilian Manpower Management (D) This transportation is not avail- Instruction 451.) able to other youth programs, includ- (d) Chief of Information awards—(1) ing others sponsored by the Navy Certificate of Public Relations Achieve- League. ment. (i) This certificate is signed by (f) Other instructions on transportation the Chief of Information. It honors in- of non-Navy civilians. Details on policy, dividuals who are not Navy employees, procedures, and the transportation of corporations, or associations. certain categories of people will be (ii) It was established to fill the need found in OPNAVINST 5720.2G and DOD for a civilian award for public relations Directive 4515.13. achievements which, while not meeting [41 FR 29101, July 15, 1976, as amended at 44 the criteria for public service awards FR 6391, Feb. 1, 1979] presented by the Secretary of the Navy, are of such Navy-wide signifi- § 705.37 Public affairs and public service awards. cance as to merit recognition at the Department level. Examples of these (a) General. (1) A number of public achievements might be a particularly service awards are presented by the De- well done feature article about the partment of Defense and the Navy to Navy in a nationally read newspaper or business and civic leaders, scientists an outstanding contribution to a lo- and other nongovernment civilians. cally sponsored event, which ulti- Other awards—military and civilian— mately gave national or regional rec- are presented to members of the naval establishment. ognition to the Navy. (2) These awards are of public affairs (iii) The achievement for which the interest in the locale where they are certificate is given shall meet the fol- presented and also in the home towns lowing criteria: of those who receive them. (A) Contribute to accomplishment of (b) Department of Defense awards. (1) the public information objectives of The Department of Defense Medal for the Navy. Distinguished Public Service is pre- (B) Be the result of a single out- sented to individuals. The Department standing project or program.

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(C) Have been accomplished within service personnel for letters on patri- one year of the date of the official let- otic themes. Details are carried in ship ter of nomination. and station publications, or may be ob- (iv) Nominations will be submitted tained by writing to Freedom Founda- through appropriate administrative tions, Valley Forge, PA 19481. channels to the Chief of Information, (iii) Thomas Jefferson Awards are the and will include a description of the prizes in an annual interservice com- service rendered, a statement of its rel- petition sponsored by civilian media evance to the accomplishment of the through the Department of Defense’s public affairs objectives of the Navy Office of Information for the Armed and a draft of the recommended cita- Forces. The contest is open to all tion. To avoid possible embarrassment, Armed Forces media—broadcast and nominations shall be marked ‘‘For Offi- print. Details can be obtained by writ- cial Use Only’’ and safeguarded until ing to Office of Information, Depart- final action has been taken. ment of the Navy, Washington, DC (2) CHINFO Merit Awards. (i) These 20350. awards, or certificates, are presented (iv) Navy League Awards. Several an- quarterly to Navy publications and nual awards are presented to naval per- broadcasts considered to be out- sonnel and civilians who have made a standing or to have shown improve- notable contribution to the importance ment in meeting professional standards of seapower. The awards are for inspi- of journalism. rational leadership, scientific and tech- (ii) Publications and broadcasts eligi- nical progess, operational competence, ble are those which inform the reader literary achievement, etc. Nominations concerning aspects of service life or re- should be forwarded directly to Board lated matters which contribute to the of Awards, Navy League of the United well-being of naval personnel, their de- States, 818 18th St., NW., Washington, pendents, and civilian employees of the DC 20006. Navy. Civilian enterprise periodicals (v) Nonofficial awards to outstanding are included if produced for the exclu- Navy students or training units. sive use of a naval installation. (A) Various civilian organizations (iii) Nominations are made in two and private individuals have estab- ways: lished awards to be presented to out- (A) Selection during regular review standing training units or naval stu- periodicals and broadast air-checks re- dents. ceived by the Internal Relations Activ- (B) Requests to establish an award ity. for students in the Naval Air Training (B) Nominations from the field. Such program should be forwarded to the nominations are informal and may be Chief of Naval Air Training. made by the officer-in-charge, publications editor, broadcast station man- (C) Requests to establish an award ager, or public affairs officer to the which will involve more than one chief of Information, Navy Depart- school (other than the Naval Air Train- ment, Washington, DC 20350 (ATTN: ing Program) will be forwarded to the OP–0071). Chief of Naval Personnel. (3) Other awards pertaining to public (D) All other cases may be decided by affairs/internal relations. (i) Silver Anvil the Navy authority at the school con- award is given by the Public Relations cerned. Society of America for outstanding (E) Directives in the 5061, 1650 and public relations programs carried out 3590 series issued by pertinent authori- during the preceding year. Entry ties may provide further guidance in blanks and details may be obtained by individual cases. writing directly to Public Relations (vi) Awards established by a com- Society of America, 845 Third Ave., mand to honor non-Navy civilians. New York, NY 10022. All Navy entries (A) Examples of such awards are will be forwarded via the Chief of Infor- ‘‘Good Neighbor’’ or ‘‘Honorary Crew mation. Member’’ certificates. (ii) Freedom Foundation Awards of (B) Established to honor persons who cash and medals are annually given to have been helpful to the command,

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they are a valuable community rela- in a commercial or governmental busi- tions program. They should not be ness capacity. awarded to persons or organizations [41 FR 29101, July 15, 1976, as amended at 44 with which the command is associated FR 6391, Feb. 1, 1979]

SUBCHAPTER B—NAVIGATION

PART 706—CERTIFICATIONS AND cons, different colored fixed and rotary EXEMPTIONS UNDER THE INTER- wing aircraft landing signal lights, red NATIONAL REGULATIONS FOR aircraft warning lights, and red or blue contour approach lights on replenish- PREVENTING COLLISIONS AT SEA, ment-type ships. These lights may be 1972 shown in combination with the navigational lights. Sec. (c) During peacetime naval maneu- 706.1 Purpose of regulations. vers, naval ships, alone or in company, 706.2 Certifications of the Secretary of the may also dispense with showing any Navy under Executive Order 11964 and 33 U.S.C. 1605. lights, though efforts will be made to 706.3 Exemptions by the Secretary of the display lights on the approach of ship- Navy under Executive Order 11964. ping. (d) Executive Order 11964 of January AUTHORITY: 33 U.S.C. 1605. 19, 1977, and 33 U.S.C. 1605 provide that § 706.1 Purpose of regulations. the requirements of the International Regulations for Preventing Collisions (a) All ships are warned that, when at Sea, 1972, as to the number, position, U.S. naval vessels are met in inter- range, or arc of visibility of lights or national waters, certain navigational shapes, as well as to the disposition lights and sound-signalling appliances and characteristics of sound-signalling of some naval vessels may vary from appliances, shall not apply to a vessel the requirements of the International of the Navy where the Secretary of the Regulations for Preventing Collisions Navy shall find and certify that, by at Sea, 1972 (33 U.S.C. foll. section 1602 reason of special construction or pur- (1982)), as to number, position, range, pose, it is not possible for such vessel or arc of visibility of lights, as well as to comply fully with the provisions to the disposition and characteristics without interfering with the special of sound-signalling appliances. Those function of the vessel. differences are necessitated by reason (e) Executive Order 11964 also proof the special construction or purpose vides that the Secretary of the Navy is of the naval ships. An example is the authorized to exempt, in accordance aircraft carrier where the two mast- with Rule 38 of the International Regu- head lights are considerably displaced lations for preventing Collisions at from the center or keel line of the ves- Sea, 1972, any vessel, or class of vessels, sel when viewed from ahead. Certain the keel of which is laid, or which is at other naval vessels cannot comply with a corresponding stage of construction, the horizontal separation requirements before July 15, 1977, from full compli- for masthead lights, and the two mast- ance with the International Regula- head lights on even large naval vessels tions, provided that such vessel, or will thus appear to be crowded together class of vessels, complies with the re- when viewed from a distance. Naval quirements of the International Regu- vessels may also have unorthodox navi- lations for Preventing Collisions at gational light arrangements or charac- Sea, 1960. teristics when seen either underway or (f) This part consolidates and codifies at anchor. certifications and exemptions granted (b) Naval vessels may also be ex- by the Secretary of the Navy under Ex- pected to display certain other lights. ecutive Order 11964 and 33 U.S.C. 1605. These lights include, but are not lim- It has been determined that, because of ited to, different colored rotating bea- their special construction or purpose,

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the vessels and classes of vessels listed TABLE ONE—Continued in this part cannot comply fully with Distance in all of the requirements of the Inter- meters of national Regulations for Preventing forward masthead Collisions at Sea, 1972. light below Vessel Number minimum [42 FR 36434, July 14, 1977, as amended at 42 required FR 48876, Sept. 26, 1977; 45 FR 43165, June 26, height. 1980; 52 FR 4770, Feb. 17, 1987] ¤ 2(a)(i) Annex I

§ 706.2 Certifications of the Secretary USS VANDEGRIFT ...... FFG 48 1.6 of the Navy under Executive Order USS ROBERT G. BRADLEY ...... FFG 49 1.6 11964 and 33 U.S.C. 1605. USS TAYLOR ...... FFG 50 1.6 USS GARY ...... FFG 51 1.6 The Secretary of the Navy hereby USS CARR ...... FFG 52 1.6 finds and certifies that each vessel list- USS HAWES ...... FFG 53 1.6 ed in this section is a naval vessel of USS FORD ...... FFG 54 1.6 USS ELROD ...... FFG 55 1.6 special construction or purpose, and USS SIMPSON ...... FFG 56 1.6 that, with respect to the position of USS REUBEN JAMES ...... FFG 57 1.6 the navigational lights listed in this USS SAMUEL B. ROBERTS ...... FFG 58 1.6 USS KAUFFMAN ...... FFG 59 1.6 section, it is not possible to comply USS RODNEY M. DAVIS ...... FFG 60 1.6 fully with the requirements of the pro- USS INGRAHAM ...... FFG 61 1.37 visions enumerated in the Inter- USS OGDEN ...... LPD 5 4.15 national Regulations for Preventing USS DULUTH ...... LPD 6 4.4 USS DUBUQUE ...... LPD 8 4.2 Collisions at Sea, 1972, without inter- USS DENVER ...... LPD 9 4.4 fering with the special function of the USS JUNEAU ...... LPD 10 4.27 vessel. The Secretary of the Navy fur- USS TRIPOLI ...... LPH 10 3.3 LCAC (class) ...... LCAC 1 1 6.51 ther finds and certifies that the naviga- through tional lights in this section are in the LCAC 100 closest possible compliance with the LCAC (class) ...... LCAC 1 2 7.94 applicable provisions of the Inter- through LCAC 100 national Regulations for Preventing USS INCHON ...... MCS 12 3.0 Collisions at Sea, 1972. NRÐ1 ...... NR 1 2.7 USS SEAWOLF ...... SSN 21 4.62 TABLE ONE USS CONNECTICUT ...... SSN 22 4.62 USS PARCHE ...... SSN 683 3.58 Distance in USS KAMEHAMEHA ...... SSN 642 3.58 meters of USS MENDEL RIVERS ...... SSN 686 2.40 forward USS LOS ANGELES ...... SSN 688 6.10 masthead USS PHILADELPHIA ...... SSN 690 6.10 Vessel Number light below USS MEMPHIS ...... SSN 691 6.10 minimum USS BREMERTON ...... SSN 698 3.49 required height. USS JACKSONVILLE ...... SSN 699 3.35 ¤ 2(a)(i) USS DALLAS ...... SSN 700 3.5 Annex I USS LA JOLLA ...... SSN 701 3.5 USS CITY OF CORPUS CHRISTI SSN 705 3.5 USS DOLPHIN ...... AGSS 555 0.8 USS ALBUQUERQUE ...... SSN 706 3.5 USS MC INERNY ...... FFG 8 1.6 USS PORTSMOUTH ...... SSN 707 3.5 USS CLARK ...... FFG 11 1.6 USS MINNEAPOLIS-ST. PAUL .... SSN 708 3.5 USS GEORGE PHILIP ...... FFG 12 1.6 USS HYMAN G. RICKOVER ...... SSN 709 3.5 USS SAMUEL ELIOT MORISON .. FFG 13 1.6 USS AUGUSTA ...... SSN 710 3.5 USS SIDES ...... FFG 14 1.6 USS SAN FRANCISCO ...... SSN 711 3.5 USS ESTOCIN ...... FFG 15 1.6 USS HOUSTON ...... SSN 713 3.5 USS JOHN A. MOORE ...... FFG 19 1.6 USS NORFOLK ...... SSN 714 3.5 USS BOONE ...... FFG 28 1.6 USS BUFFALO ...... SSN 715 3.5 USS STEPHEN W. GROVES ...... FFG 29 1.6 USS SALT LAKE CITY ...... SSN 716 3.5 USS JOHN L. HALL ...... FFG 32 1.6 USS OLYMPIA ...... SSN 717 3.5 USS JARRETT ...... FFG 33 1.6 USS HONOLULU ...... SSN 718 3.5 USS UNDERWOOD ...... FFG 36 1.6 USS PROVIDENCE ...... SSN 719 3.5 USS CROMMELIN ...... FFG 37 1.6 USS PITTSBURGH ...... SSN 720 3.5 USS CURTS ...... FFG 38 1.6 USS CHICAGO ...... SSN 721 3.5 USS DOYLE ...... FFG 39 1.6 USS KEY WEST ...... SSN 722 3.5 USS HALYBURTON ...... FFG 40 1.6 USS OKLAHOMA CITY ...... SSN 723 3.5 USS MCCLUSKY ...... FFG 41 1.6 USS LOUISVILLE ...... SSN 724 3.5 USS KLAKRING ...... FFG 42 1.6 USS HELENA ...... SSN 725 3.5 USS THACH ...... FFG 43 1.6 USS NEWPORT NEWS ...... SSN 750 3.5 USS DEWERT ...... FFG 45 1.6 USS SAN JUAN ...... SSN 751 3.5 USS RENTZ ...... FFG 46 1.6 USS PASADENA ...... SSN 752 3.5 USS NICHOLAS ...... FFG 47 1.6 USS ALBANY ...... SSN 753 3.5

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TABLE ONE—Continued TABLE ONE—Continued

Distance in Distance in meters of meters of forward forward masthead masthead light below Vessel Number light below Vessel Number minimum minimum required required height. height. ¤ 2(a)(i) ¤ 2(a)(i) Annex I Annex I

USS TOPEKA ...... SSN 754 3.5 USS MICHIGAN ...... SSBN 727 3.70 USS MIAMI ...... SSN 755 3.5 USS FLORIDA ...... SSBN 728 3.70 USS SCRANTON ...... SSN 756 3.5 USS GEORGIA ...... SSBN 729 3.70 USS ALEXANDRIA ...... SSN 757 3.5 USS HENRY M. JACKSON ...... SSBN 730 3.70 USS ASHEVILLE ...... SSN 758 3.5 USS ALABAMA ...... SSBN 731 3.70 USS JEFFERSON CITY ...... SSN 759 3.4 USS ALASKA ...... SSBN 732 3.70 USS ANNAPOLIS ...... SSN 760 3.5 USS NEVADA ...... SSBN 733 3.70 USS SPRINGFIELD ...... SSN 761 3.5 USS TENNESSEE ...... SSBN 734 3.70 USS COLUMBUS ...... SSN 762 3.5 USS PENNSYLVANIA ...... SSBN 735 3.70 USS SANTA FE ...... SSN 763 3.5 USS WEST VIRGINIA ...... SSBN 736 3.70 USS BOISE ...... SSN 764 3.5 USS KENTUCKY ...... SSBN 737 3.70 USS MONTPELIER ...... SSN 765 3.5 USS MARYLAND ...... SSBN 738 3.70 USS CHARLOTTE ...... SSN 766 3.5 USS NEBRASKA ...... SSBN 739 3.70 USS HAMPTON ...... SSN 767 3.5 USS RHODE ISLAND ...... SSBN 740 3.70 USS HARTFORD ...... SSN 768 3.5 USS MAINE ...... SSBN 741 3.70 USS TOLEDO ...... SSN 769 3.5 USS WYOMING ...... SSBN 742 3.70 USS TUCSON ...... SSN 770 3.5 USS LOUISIANA ...... SSBN 743 3.70 USS COLUMBIA ...... SSN 771 3.5 1 The permanent masthead light is 5.26 meters athwartship USS GREENEVILLE ...... SSN 772 3.5 to port of centerline, 5.49 meters above the main deck. USS CHEYENNE ...... SSN 773 3.5 2 The temporary masthead light is 3.98 meters athwartship USS OHIO ...... SSBN 726 3.70 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

CSP (class) ...... CSPÐ101 1.62 ...... 3.93 through CSPÐ182 USS KITTY HAWK CV 63 27.8 ...... 1 ...... 1 0.2 ...... USS CONSTELLA- TION ...... CV 64 28.2 ...... 1 ...... 1 0.4 ...... USS JOHN F. KEN- NEDY ...... CV 67 27.5 ...... 1 9.0 2 0.4 ...... USS ENTERPRISE CVN 65 28.0 ...... 0.4 ...... USS NIMITZ ...... CVN 68 31.0 ...... 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 ......

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TABLE TWO—Continued

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 IWO JIMA ...... LHD 7 ...... 2.97 88.80 ...... USS TRIPOLI ...... LPH 10 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 USS INCHON ...... MCS 12 10.6 ...... 1 2.2 2 0.4 47.5 ...... 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) ...... SLWTÐ6 1.62 ...... 3.93 SLWT (class) ...... SLWTÐ8 1.62 ...... 3.93 through SLWTÐ19 SLWT (class) ...... SLWTÐ22 1.62 ...... 3.93 through SLWTÐ24 SLWT (class) ...... SLWTÐ26 1.62 ...... 3.93 through SLWTÐ65 1 [Reserved] 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 ...... PC2 ...... 28.26 1 3.01 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 ...... PCÐ8 ...... 1 28.26 3.01 1.1 below 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 ...... PCÐ13 ...... 1 28.26 3.01 1.1 below USS TORNADO ...... PCÐ14 ...... 1 27.8 3.01 1.1 below USS DOLPHIN ...... AGSS 555 227.51⁄2 1191⁄2 1911⁄2 2.1 10.8 1.8 0.5 above NRÐ1 ...... 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

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TABLE THREE—Continued

USS CONNECTICUT SSN 22 232° 112.8° 207° 5.1 10.7 2.8 1.63 below. USS KAMEHAMEHA .. SSN 642 236° 117° 252° 3.8 7.6 2.1 same height USS PARCHE ...... SSN 683 232° 112.5° 209° 4.1 6.8 2.2 0.2 below USS L. MENDEL RIV- SSN 686 236° 113° 252° 3.8 5.2 3.4 1.4 below ERS. 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 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 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 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 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

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TABLE THREE—Continued

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 (class) ...... YTB 769 ...... 2.77 14.02 ...... KEOKUK ...... YTB 771 ...... 3.11 13.00 ...... YTB 781 ...... YTB 781 ...... 2.56 13.41 ...... YTB (class) ...... YTB 789 ...... 2.50 14.99 ...... YTB 806 ...... YTB 806 ...... 2.79 10.97 ...... YTB 812 ...... YTB 812 ...... 3.03 14.02 ...... YTB 813 ...... YTB 813 ...... 2.63 19.2 ...... YTB 820 ...... YTB 820 ...... 3.08 14.20 ...... SHABONEE ...... YTB 833 ...... 2.77 13.34 ...... 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 of two lights, one light port and one light 1. Ships other than aircraft carrier types starboard on the mast or superstructure at (CV, CVN, LHA, LHD, and LPH) may not si- each location in the vertical array. multaneously exhibit the masthead lights re- 3. The second masthead light required by quired by Rule 27(b)(iii) and the lights re- Rule 23(a)(ii) and the lights and shapes required by Rule 27(b)(i) for vessels restricted quired by Rules 24, 27, and 30(d)(i) are not in their ability to maneuver when such si- displayed by submarines. multaneous exhibition will present a hazard 4. On mine warfare type ships the mast- to their own safe operations. In those in- head lights will not always be above and stances, the lights required by Rule 27(b)(i) clear of the minesweeping lights, as is re- will be exhibited. Ships conducting flight op- 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

MSB ...... 15 below ...... MSB ...... 16 do ...... MSB ...... 25 do ...... MSB ...... 28 do ...... MSB ...... 29 do ...... MSB ...... 41 do ...... MSB ...... 51 do ...... MSB ...... 52 do ......

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5. The masthead light required by Rule Distance of 23(a)(i) is not located in the forepart of the sidelights vessel on the CSP Class and SLWT Class. forward of Vessel Number masthead 6. [Reserved] light in me- 7. On the following ships the arc of visi- ters bility of the forward masthead light required by Rule 23(a)(i) may be obstructed through USS DEWERT ...... FFG 45 2.75 USS RENTZ ...... FFG 46 2.75 1.6° arc of visibility at the points 021° and ° USS NICHOLAS ...... FFG 47 2.75 339 relative to the ship’s head. USS VANDEGRIFT ...... FFG 48 2.75 USS MCINERNEY ...... FFG 8 USS ROBERT G. BRADLEY ...... FFG 49 2.75 USS CLARK ...... FFG 11 USS TAYLOR ...... FFG 50 2.75 USS GEORGE PHILIP ...... FFG 12 USS GARY ...... FFG 51 2.75 USS SAMUEL ELIOT MORISON ...... FFG 13 USS CARR ...... FFG 52 2.75 USS SIDES ...... FFG 14 USS HAWES ...... FFG 53 2.75 USS ESTOCIN ...... FFG 15 USS FORD ...... FFG 54 2.75 USS JOHN A. MOORE ...... FFG 19 USS ELROD ...... FFG 55 2.75 USS BOONE ...... FFG 28 USS SIMPSON ...... FFG 56 2.75 USS STEPHEN W. GROVES ...... FFG 29 USS REUBEN JAMES ...... FFG 57 2.75 USS JOHN L. HALL ...... FFG 32 USS SAMUEL B. ROBERTS ...... FFG 58 2.75 USS JARRETT ...... FFG 33 USS KAUFFMAN ...... FFG 59 2.75 USS UNDERWOOD ...... FFG 36 USS RODNEY M. DAVIS ...... FFG 60 2.75 USS CROMMELIN ...... FFG 37 USS INGRAHAM ...... FFG 61 2.19 USS CURTS ...... FFG 38 USS DOYLE ...... FFG 39 9. On LCAC-class amphibious vessels, full USS HALYBURTON ...... FFG 40 compliance with Rules 21(a), 21(b), and 22(b), USS MCCLUSKY ...... FFG 41 and Annex I, section 2(a)(i), 72 COLREGS, USS KLAKRING ...... FFG 42 cannot be obtained. Tables One and Two of USS THACH ...... FFG 43 USS DEWERT ...... FFG 45 section 706.2 provide the dimensions of clos- USS RENTZ ...... FFG 46 est possible compliance of LCAC-class am- USS NICHOLAS ...... FFG 47 phibious vessels with the aforementioned USS VANDERGRIFT ...... FFG 48 rules. The following paragraph details the USS ROBERT G. BRADLEY ...... FFG 49 specific dimensions of closest possible com- USS TAYLOR ...... FFG 50 pliance and the basis for certification by the USS GARY ...... FFG 51 Secretary of the Navy that full compliance USS CARR ...... FFG 52 USS HAWES ...... FFG 53 with the aforementioned rules is not obtain- USS FORD ...... FFG 54 able. USS ELROD ...... FFG 55 In LCAC-class amphibious vessels, there USS SIMPSON ...... FFG 56 are permanent and temporary masts. The USS REUBEN JAMES ...... FFG 57 permanent masthead light is located 5.26 me- USS SAMUEL B. ROBERTS ...... FFG 58 ters athwartship to port of centerline 5.49 USS KAUFFMAN ...... FFG 59 meters above the hull. The temporary mast- USS RODNEY M. DAVIS ...... FFG 60 USS INGRAHAM ...... FFG 61 head light is located 3.98 meters athwartship to starboard of centerline 4.06 meters above 8. Sidelights on the following ships do not the hull. The temporary masthead light is comply with Annex 1, Section 3(b): displayed in lieu of the permanent masthead light only when LCAC-class amphibious ves- Distance of sels are operating with amphibious assault sidelights forward of vessels. When operating in this mode, the Vessel Number masthead sidelights are displayed at a height greater light in me- than three-quarters of the height of the tem- ters porary masthead light. The sidelights are lo- USS MCINERNEY ...... FFG 8 2.75 cated on top of the port and starboard deck- USS CLARK ...... FFG 11 2.75 houses to permit the required unobstructed USS GEORGE PHILIP ...... FFG 12 2.75 arcs of visibility and are 3.28 meters above USS SAMUEL ELIOT MORISON .. FFG 13 2.75 the hull, resulting in a vertical separation USS SIDES ...... FFG 14 2.75 between those lights and the temporary USS ESTOCIN ...... FFG 15 2.75 masthead light of 0.78 meters. Because of the USS JOHN A. MOORE ...... FFG 19 2.75 minimal vertical separation between the USS BOONE ...... FFG 28 2.75 USS STEPHEN W. GROVES ...... FFG 29 2.75 sidelights and the temporary masthead light USS JOHN L. HALL ...... FFG 32 2.75 and the luminous intensity of the temporary USS JARRETT ...... FFG 33 2.69 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. [Reserved] USS DOYLE ...... FFG 39 2.75 11. On USS DOLPHIN (AGSS 555) the mast- USS HALYBURTON ...... FFG 40 2.75 USS MCCLUSKY ...... FFG 41 2.75 head light will be visible at a distance of 4.3 USS KLAKRING ...... FFG 42 2.75 nautical miles and the sidelights will be visi- USS THACH ...... FFG 43 2.75 ble at a distance of 2 nautical miles.

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12.–13. [Reserved] Horizontal dis- 14. The following harbor tugs are equipped tance from the fore and aft with a hinged mast. When the mast is in the Vessel Number centerline of lowered position as during a towing along- the vessel in side or pushing operation, the two masthead the athwartship direction lights required by Rule 24(c), and the all around lights required by Rule 27(b)(i) will USS SHOUP ...... DDG 86 1.90 meters. not be shown; however, an auxiliary masthead light not meeting with Annex I, section 16. On the following ships, the arc of visi- 2(a)(i) height requirement will be exhibited. bility of the forward masthead light, required by rule 21(a), may be obstructed at the following angles relative to ship’s head- Distance in meters of aux. masthead light ing: Vessel No. below minimum required height. Annex I, sec. 2(a)(i) Obstruction angle rel- Vessel Number ative ship’s headings YTB 769 ...... 3.86 ° ° YTB 771 ...... 3.89 USS ARLEIGH BURKE ... DDG 51 100.00 thru 112.50 ° ° YTB 781 ...... 3.66 USS BARRY ...... DDG 52 101.16 thru 112.50 ° ° YTB 789 ...... 3.30 USS JOHN PAUL JONES DDG 53 103.29 thru 112.50 ° ° YTB 806 ...... 3.58 USS CURTIS WILBUR ... DDG 54 102.61 thru 112.50 ° ° YTB 812 ...... 4.04 USS STOUT ...... DDG 55 102.00 thru 112.50 ° ° YTB 813 ...... 6.15 USS JOHN S. MCCAIN .. DDG 56 102.53 thru 112.50 ° ° YTB 820 ...... 3.30 USS MITSCHER ...... DDG 57 102.27 thru 112.50 ° ° YTB 833 ...... 3.68 USS LABOON ...... DDG 58 102.80 thru 112.50 ° ° YTB 835 ...... 4.04 USS RUSSELL ...... DDG 59 92.62 thru 109.38 USS PAUL HAMILTON ... DDG 60 101.35° thru 112.50° 15. Task (restricted maneuverability) USS RAMAGE ...... DDG 61 103.66° thru 112.50° ° ° lights on the following ships do not comply USS FITZGERALD ...... DDG 62 108.30 thru 112.50 USS STETHEM DDG 63 108.5 thru 112.50° with Annex I, section 3(c). USS CARNEY ...... DDG 64 105.06° thru 112.50° USS BENFOLD ...... DDG 65 101.86° thru 112.50° ° ° Horizontal dis- USS GONZALES ...... DDG 66 101.69 thru 112.50 tance from the USS COLE ...... DDG 67 101.83° thru 112.50° fore and aft USS THE SULLIVANS .... DDG 68 103.06° thru 112.50° Vessel Number centerline of USS MILIUS ...... DDG 69 102.30° thru 112.50° the vessel in USS HOPPER ...... DDG 70 102.25° thru 112.50° the athwart- USS ROSS ...... DDG 71 104.05° thru 112.50° ship direction USS MAHAN ...... DDG 72 102.11° thru 112.50° ° ° USS ARLEIGH BURKE ...... DDG 51 1.85 meters USS DECATUR ...... DDG 73 103.00 thru 112.50 ° ° USS BARRY ...... DDG 52 1.94 meters USS MCFAUL ...... DDG 74 102.00 thru 112.50E ° ° USS JOHN PAUL JONES ...... DDG 53 1.89 meters USS DONALD COOK ..... DDG 75 108.78 thru 112.50 ° USS CURTIS WILBUR ...... DDG 54 1.90 meters USS HIGGINS ...... DDG 76 108.60 thru 112.50 ° USS STOUT ...... DDG 55 1.90 meters USS O’KANE ...... DDG 77 102.00 thru 112.50 ° USS JOHN S. MCCAIN ...... DDG 56 1.88 meters USS PORTER ...... DDG 78 108.43 thru 112.50 ° USS MITSCHER ...... DDG 57 1.93 meters USS OSCAR AUSTIN ..... DDG 79 107.94 thru 112.50 . ° USS LABOON ...... DDG 58 1.90 meters USS ROOSEVELT ...... DDG 109.34 thru 112.50 . USS RUSSELL ...... DDG 59 1.91 meters 80. ° USS PAUL HAMILTON ...... DDG 60 1.88 meters USS WINSTON S. DDG 81 101.96 thru 112.50 . USS RAMAGE ...... DDG 61 1.91 meters CHURCHILL. ° USS FITZGERALD ...... DDG 62 1.90 meters USS LASSEN ...... DDG 82 109.11 thru 112.50 ° USS STETHEM ...... DDG 63 1.91 meters USS HOWARD ...... DDG 83 103.20 thru 112.50 ° USS CARNEY ...... DDG 64 1.90 meters USS BULKELEY ...... DDG 84 104.74 thru 112.50 ° USS BENFOLD ...... DDG 65 1.90 meters USS MCCAMPBELL ...... DDG 85 108.61 thru 112.50 ° USS GONZALES ...... DDG 66 1.90 meters USS SHOUP ...... DDG 86 190.46 thru 112.50 USS COLE ...... DDG 67 1.90 meters USS THE SULLIVANS ...... DDG 68 1.87 meters 17. The second masthead light required by USS MILIUS ...... DDG 69 1.93 meters Rule 23(a)(ii) will not be displayed on the PC USS HOPPER ...... DDG 70 1.83 meters 1 Class. USS ROSS ...... DDG 71 1.96 meters 18. On the following mine warfare type USS MAHAN ...... DDG 72 1.90 meters ships, the arc of visibility of the lower all- USS DECATUR ...... DDG 73 1.87 meters USS MCFAUL ...... DDG 74 1.91 meters round minesweep lights required by Rule USS DONALD COOK ...... DDG 75 1.90 meters 27(f), may be obstructed through the fol- USS HIGGINS ...... DDG 76 1.92 meters lowing angles relative to the ship’s heading: USS O’KANE ...... DDG 77 1.92 meters USS PORTER ...... DDG 78 1.92 meters Obscured angles relative to USS ROOSEVELT ...... DDG 80 1.90 meters ship’s heading USS WINSTON S. CHURCHILL DDG 81 1.87 meters. Vessel Number USS HOWARD ...... DDG 83 1.88 Port STBD USS LASSEN ...... DDG 82 1.93 USS BULKELEY ...... DDG 84 1.90 OSPREY ...... MHC 51 59.5° to 78.3° 281.7° to 300.5° USS MCCAMPBELL ...... DDG 85 1.85 meters. HERON ...... MHC 52 59.5° to 78.3° 281.7° to 300.5°

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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

PELICAN ...... MHC 53 59.5° to 78.3° 281.7° to 300.5° USS FALCON MHC 59 65.0° to 75.6° 284.1° to 294.6° ROBIN ...... MHC 54 59.5° to 78.3° 281.7° to 300.5° CARDINAL ..... MHC 60 65.0° to 75.6° 284.1° to 294.6° ORIOLE ...... MHC 55 65.0° to 75.6° 284.1° to 294.6° CORMORANT MHC 57 59.5° to 78.3° 281.7° to 300.5° 19. Sidelights on the following ships do not BLACK HAWK MHC 58 65.0° to 75.6° 284.1° to 294.6° comply with Annex I, Section 2 (g):

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 FLINT ...... AE 32 ...... X 98 USS SHASTA ...... AE 33 ...... X 98 USS NIAGARA FALLS ...... AFS 3 ...... X 97.9 USS CONCORD ...... AFS 5 ...... X 97 USS SAN JOSE ...... AFS 7 ...... X 98.1 USS LA SALLE ...... AGF 3 ...... X 54 USS CORONADO ...... AGF 11 ...... X 55 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 USS PORT ROYAL ...... CG 73 N/A X X 38 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

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TABLE FIVE—Continued

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 O’BRIEN ...... DD 975 ...... X X 46.1 USS BRISCOE ...... DD 977 ...... X X 46.4 USS STUMP ...... DD 978 ...... X X 46 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 CUSHING ...... DD 985 ...... 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 FIFE ...... DD 991 ...... X X 48 USS FLETCHER ...... DD 992 ...... X X 46 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 19.8 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 19.2 USS FITZGERALD ...... DDG 62 X X X 21.2 USS STETHEM ...... DDG 63 X X X 20.9 USS CARNEY ...... DDG 64 X X X 19.7 USS BENFOLD ...... DDG 65 X X X 20.0 USS GONZALES ...... DDG 66 X X X 20.4 USS COLE ...... DDG 67 X X X 14.0 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 14.8 USS HIGGINS ...... DDG 76 X X X 14.8 USS O’KANE ...... DDG 77 X X X 14.0 USS PORTER ...... DDG 78 X X X 14.4 USS OSCAR AUSTIN ...... DDG 79 X X X 14.7 USS ROOSEVELT ...... DDG 80 X X X 14.6 USS WINSTON S. CHURCHILL ...... DDG 81 X X X 13.8 USS HOWARD ...... DDG 83 X X X 14.0 USS LASSEN ...... DDG 82 X X X 14.5 USS BULKELEY ...... DDG 84 X X X 14.1 USS MCCAMPBELL ...... DDG 85 X X X 14.6 USS SHOUP ...... DDG 86 X X X 14.6 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

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TABLE FIVE—Continued

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 IWO JIMA ...... LHD 7 X X 41.5 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 TRIPOLI ...... LPH 10 ...... X X 12 USS ANCHORAGE ...... LSD 36 ...... X 46 USS PORTLAND ...... LSD 37 ...... X 46 USS MOUNT VERNON ...... LSD 39 ...... X 46 USS WHIDBEY ISLAND ...... LSD 41 ...... X 65 USS GERMANTOWN ...... LSD 42 ...... X 65 USS FORT McHENRY ...... LSD 43 ...... X 64 USS GUNSTON HALL ...... LSD 44 ...... X 64 USS COMSTOCK ...... LSD 46 ...... X 64 USS TORTUGA ...... LSD 46 ...... X 64 USS RUSHMORE ...... LSD 47 ...... X 64 USS ASHLAND ...... LSD 48 ...... X 64.1 USS HARPERS FERRY ...... LSD 49 ...... X 63.9 USS CARTER HALL ...... LSD 50 ...... X 63.9 USS OAK HILL ...... LSD 51 ...... X 63.9 USS PEARL HARBOR ...... LSD 52 ...... X 63.9 USS FREDERICK ...... LST 1184 ...... X 90 USS CAYUGA ...... LST 1186 ...... X 89 USS SAN BERNARDINO ...... LST 1189 ...... X 89 USS LA MOURE COUNTY ...... LST 1194 ...... X 88 USS HARLAN COUNTY ...... LST 1196 ...... X 89 USS BARNSTABLE COUNTY ...... LST 1197 ...... X 88 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 USS INCHON ...... MCS 12 ...... X X 11 USNS KILAUEA ...... T-AE 26 ...... X 94.1

[42 FR 36434, July 14, 1977]

EDITORIAL NOTE 1: For FEDERAL REGISTER citations affecting § 706.2, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and on GPO Access.

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EDITORIAL NOTE 2: At 66 FR 53532, Oct. 23, 2001, Tables Four and Five were amended by adding entries for the USS WINSTON CHURCHILL. Those tables have entries for the ship.

§ 706.3 Exemptions by the Secretary of 707.7 Submarine identification light. the Navy under Executive Order 707.8 Special operations lights. 11964. 707.9 Convoy operations stern light. The Secretary of the Navy hereby ex- 707.10 Wake illumination light. empts, in accordance with Rule 38 of 707.11 Flight operations lights. the International Regulations for Pre- 707.12 Amphibious operations lights. venting Collisions at Sea, 1972, the ves- AUTHORITY: 33 U.S.C. 182 and 1606, E.O. sels and classes of vessels listed in this 11964. section, from full compliance with the SOURCE: 42 FR 61596, Dec. 6, 1977, unless Regulations, where an exemption is al- otherwise noted. lowed by, and for the periods specified in, Rule 38. The Secretary of the Navy § 707.1 Purpose of regulations. further finds that the vessels and classes of vessels listed have had their keels All ships are warned that when U.S. laid or are in corresponding stages of naval vessels are met in international construction before July 15, 1977, and and inland waters, some of the naviga- that such vessels and classes of vessels tional lights displayed by them may be comply with the requirements of the special lights for naval purposes. When International Regulations for Pre- used, they may be displayed simulta- venting Collisions at Sea, 1960. neously with the ordinary navigational TABLE ONE lights required by the International [The following vessels and classes of vessels, less than 150 Regulations for Preventing Collisions meters in length, are permanently exempted pursuant to rule 38(d)(i) from repositioning of masthead lights resulting at Sea, 1972, or the Inland Navigational from the prescriptions of Annex I, section 3(a)] Rules. The lights are located and char- Vessel or class acterized in such a fashion that, as far as possible, they cannot be mistaken USNS HAYES (TÐAGÐ195) for any light authorized by either set TÐAGOR 3 Class TÐAGS 26 Class of rules. This part publishes the special TÐAOG 77 Class rules with respect to these additional TÐATF 166 Class station and signal lights promulgated DDG 2 Class FF 1040 Class by the Secretary of the Navy for ves- FF 1052 Class sels of the Navy. FFG 7 Class LCU 1610 Class LCU 1648 Class § 707.2 Man overboard lights. USS DOLPHIN (AGSS 555) Naval vessels may display, as a SSN 594 Class SSN 637 Class means of indicating man overboard, SSN 688 Class two pulsating, all round red lights in SSBN 726 Class the vertical line located on a mast YFU (Ex-LCU 1466 Class) from where they can best be seen. [42 FR 36434, July 14, 1977, as amended at 55 FR 27818, July 9, 1990; 60 FR 22506, May 8, § 707.3 Yard arm signaling lights. 1995; 65 FR 79742, Dec. 20, 2000] Naval vessels may display, as a means of visual signaling, white all PART 707—SPECIAL RULES WITH RE- round lights at the ends of the yard SPECT TO ADDITIONAL STATION arms. These lights will flash in varying AND SIGNAL LIGHTS sequences to convey the intended signal. Sec. 707.1 Purpose of regulations. § 707.4 Aircraft warning lights. 707.2 Man overboard lights. 707.3 Yard arm signaling lights. Naval vessels may display, as a 707.4 Aircraft warning lights. means of indicating the presence of an 707.5 Underway replenishment contour obstruction to low flying aircraft, one lights. 707.6 Minesweeping station keeping lights. all round red light on each obstruction.

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§ 707.5 Underway replenishment con- it can best be seen all around the hori- tour lights. zon. Naval vessels may display, as a § 707.9 Convoy operations stern light. means of outlining the contour of the delivery ship during nighttime under- Naval vessels may display, during pe- way replenishment operations, either riods of convoy operations, a blue light red or blue lights at delivery-ship- located near the stern with the same deck-edge extremities. characteristics as, but in lieu of, the normal white stern light. [42 FR 61596, Dec. 6, 1977, as amended at 44 FR 27991, May 14, 1979] § 707.10 Wake illumination light. § 707.6 Minesweeping station keeping Naval vessels may display a white lights. spot light located near the stern to il- luminate the wake. Naval vessels engaged in minesweeping operations may display, as an § 707.11 Flight operations lights. aid in maintaining prescribed intervals and bearings, two white lights in a Naval vessels engaged in night flight vertical line visible from 070° through operations may display various ar- 290° relative. rangements of light systems containing combinations of different col- § 707.7 Submarine identification light. ored lights as a means of assisting in the launch and recovery of aircraft and Submarines may display, as a dis- enhancing flight safety. These light tinctive means of identification, an systems will be located at various intermittent flashing amber beacon points on the vessels, depending on the with a sequence of operation of one vessel type and the nature of the flight flash per second for three (3) seconds operations being conducted. followed by a three (3) second off-period. The light will be located where it § 707.12 Amphibious operations lights. can best be seen, as near as practicable, all around the horizon. It shall not be Naval vessels engaged in night am- located less than two (2) feet above or phibious operations may display var- below the masthead lights. ious arrangements of light systems containing combinations of different [48 FR 4284, Jan. 31, 1983] colored lights as a means of assisting in the launch and recovery of assault § 707.8 Special operations lights. craft and enhancing the safety of the Naval vessels may dispay, as a means amphibious operation. These light sys- of coordinating certain special oper- tems will be located at various points ations, a revolving beam colored red, on the vessel, depending on the vessel green, or amber, located on either yard type and the nature of the amphibious arm or the mast platform from where operations being conducted.

SUBCHAPTER C—PERSONNEL

PART 716—DEATH GRATUITY 716.8 Payments excluded. 716.9 Erroneous payment. Subpart A—Provisions Applicable to the Subpart B—Provisions Applicable to the Navy and the Marine Corps Navy Sec. 716.10 Procedures. 716.1 Principal rule. 716.2 Definitions. 716.3 Special situations. Subpart C—Provisions Applicable to the 716.4 Eligible survivors. Marine Corps 716.5 Delegation of authority. 716.11 Procedures. 716.6 Death occurring after active service. 716.7 Payment of the death gratuity.

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AUTHORITY: Sec. 301, 80 Stat. 379, 1(32)(A), member of the naval service, other 72 Stat. 1452; 5 U.S.C. 301, 10 U.S.C. 1475–1480, than active duty for training, or (2) as Pub. L. 89–554. a midshipman at the United States SOURCE: 24 FR 7523, Sept. 18, 1959, unless Naval Academy, and (3) authorized otherwise noted. travel to or from such duty or service. (c) Active duty for training. Such term Subpart A—Provisions Applicable means: to the Navy and the Marine Corps (1) Full-time duty performed by a member of a Reserve component of the § 716.1 Principal rule. naval service for training purposes; Under title 10 U.S.C., section 1475, the (2) Annual training duty performed Secretary of the Navy shall have a for a period of 14 days or more by a death gratuity paid immediately upon member of the Naval Reserve Officers official notification of the death of a Training Corps; and member of the naval service who dies (3) Authorized travel to or from such while on active duty, active duty for duty. training, or inactive duty training. The (d) Inactive-duty training. Such term death gratuity shall equal six months’ is defined as any of the training, in- basic pay (plus special, incentive, and struction, appropriate duties, or equiv- proficiency pay) at the rate to which alent training, instruction, duty, ap- the deceased member was entitled on propriate duties, or hazardous duty the date of his death but shall not be performed with or without compensa- less than $800 nor more than $3,000. A tion by a member of a Reserve compo- kind of special pay included is the 25% nent prescribed by the Secretary of the increase in pay to which a member Navy pursuant to sections 206, 309, and serving on a naval vessel in foreign wa- 1002 of title 37 U.S.C. or any other pro- ters is entitled under 10 U.S.C. 5540 vision of law. The term does not in- when retained beyond expiration of en- clude: listment because such retention was (1) Work or study performed by a essential to the public interest. member of a Reserve component in connection with correspondence § 716.2 Definitions. courses in which he is enrolled, or For the purposes of this part, terms (2) Attendance at an educational in- are defined as follows: stitution in an inactive status under (a) Member of the naval service. This the sponsorship of the Navy or Marine term includes: Corps. (1) A person appointed, enlisted, or [24 FR 7523, Sept. 16, 1959, as amended at 37 inducted into the Regular Navy, Reg- FR 6471, Mar. 30, 1972; 44 FR 25647, May 2, ular Marine Corps, Naval Reserve or 1979] Marine Corps Reserve, and includes a midshipman at the United States § 716.3 Special situations. Naval Academy; (a) Service without pay. Any member (2) Enlisted members of the Fleet Re- of a Reserve component who performs serve and Fleet Marine Corps Reserve active duty, active duty for training, and retired members; or inactive-duty training without pay (3) A member of the Naval Reserve shall, for purposes of a death gratuity Officers Training Corps when ordered payment, be considered as being enti- to annual training duty for 14 days or tled to basic pay, including special pay more, and while performing authorized and incentive pay if appropriate, while travel to and from that duty; and performing such duties. (4) Any person while en route to or (b) Death occurring while traveling to from, or at a place for final acceptance and from active duty for training and infor entry upon active duty in the naval active-duty training. Any member of a service who has been ordered or di- Reserve component who, when author- rected to go to that place, and who has ized or required by competent author- been provisionally accepted for such ity, assumes an obligation to perform duty. active duty for training or inactive- (b) Active duty. This term is defined duty training and who dies from an in- as (1) full-time duty performed by a jury incurred on or after January 1,

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1957 while proceeding directly to or di- paragraphs (a) (3) and (5) of this section rectly from such active duty for train- include brothers and sisters of the half ing or inactive-duty training, shall be blood and those through adoption. deemed to have been on active duty for (b) Designation of payee by service training or inactive-duty training as member. Where the service member has the case may be. designated a beneficiary and is not sur- (c) Hospitalization. A member of a Re- vived by a spouse, child, or children, serve component who suffers disability the payment will be made to the spe- while on active duty, active duty for cific person designated by him provided training, or inactive-duty training, and the designee falls within the class of who is placed in a new status while he beneficiaries permitted as set forth in is receiving hospitalization or medical paragraph (a)(3) of this section. If more care (including out-patient care) for than one person is so designated on the such disability, shall be deemed, for Record of Emergency, payment will be purposes of death gratuity payment to made in equal shares unless the mem- have continued on active duty, active ber designated a proportionate share to duty for training, or inactive-duty each beneficiary. Frivolous designa- training, as the case may be, in the tions, such as one per centum to a par- event of his death in such status. ticular beneficiary, should not be (d) Discharge or release from a period of made. active duty. A person who is discharged (c) Death of survivor prior to receipt of or released from active duty (other gratuity. (1) If a survivor dies before re- than for training) is considered to con- ceiving payment, or if a designated tinue on that duty during the period of beneficiary predeceases the member time required for that person to go to (and there is no other designated bene- his home by the most direct route. ficiary) such amount shall be paid to That period may not end before mid- the then living survivor or survivors night of the day on which the member listed first under paragraph (a) of this is discharged or released. section. (2) In case one of the beneficiaries [24 FR 7523, Sept. 18, 1959, as amended at 25 (parents or brothers or sisters) des- FR 7792, Aug. 16, 1960] ignated by a member, pursuant to § 716.4 Eligible survivors. paragraph (a)(3) of this section, to receive death gratuity payment dies (a) The death gratuity shall be paid prior to the member’s death, or after to or for the living survivor or sur- his death but prior to the time pay- vivors of the deceased member first ment is made, the share which would listed below: have been paid to the deceased des- (1) The lawful spouse. (For purpose of ignee may be paid to the other person this part, a man or woman shall be or persons designated. considered to be the spouse if legally married to the member at the time of [24 FR 7523, Sept. 18, 1959, as amended at 37 the member’s death.) FR 6471, Mar. 30, 1972] (2) His children (without regard to their age or marital status) in equal § 716.5 Delegation of authority. shares. (a) Pursuant to the authority con- (3) Parent(s), brother(s) or sister(s) or tained in title 10 U.S.C., section 1479, as any combination of them, when des- to deaths described in section 1475 ignated by the deceased member. thereof, the Secretary of the Navy has (4) Undesignated parents in equal delegated to commanding officers of shares. naval commands, installations, or dis- (5) Undesignated brothers and sisters tricts, with respect to naval personnel, in equal shares. In paragraphs (a)(2), (3) and to Marine Corps commanding gen- and (4), respectively, of this section, erals and officers in command of regi- the terms ‘‘child’’ and ‘‘parent’’ have ments, battalions or equivalent units the meanings assigned to them by title and of separate or detached commands 10 U.S.C. section 1477 and the term who have custody of service records, ‘‘parents’’ includes persons in loco with respect to Marine Corps per- parentis as indicated by that section. sonnel, authority to certify for the The terms ‘‘brother’’ and ‘‘sister’’ in payment of death gratuity the lawful

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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 (1) Cases in which a doubt may exist possible date. The Veterans’ Adminis- as to the identity of the legal bene- tration is promptly notified of all ficiary; and deaths of this category reported, and (2) Cases in which the widow or des- upon the request of that agency all per- ignated beneficiary(ies) of the deceased tinent data is forwarded. service member was not residing with him at or near his place of duty at the § 716.7 Payment of the death gratuity. time of his death. (a) Claim certification and voucher for [24 FR 7523, Sept. 18, 1959, as amended at 44 the death gratuity payment. The Comp- FR 25647, May 2, 1979] troller General of the United States has approved DD Form 397 as the form § 716.6 Death occurring after active to be used hereafter for claim certifi- service. cation and voucher for the death gra- (a) Under title 10 U.S.C., section 1476, tuity payment. the death gratuity will be paid in any (b) Active duty deaths (Navy). To ef- case where a member or former mem- fect immediate payment of death gra- ber dies on or after January 1, 1957, tuity the following actions will be during the 120-day period which begins taken: on the day following the date of his dis- (1) The commanding officer will as- charge or release from active duty, ac- certain that the deceased member died tive duty for training, on inactive duty while on active duty, active duty for training, if the Administrator of Vet- training, or inactive-duty training, and erans’ Affairs determines that: will obtain the name, relationship, and (1) The decedent was discharged or address of the eligible survivor from released, as the case may be, from the the Service Record of the deceased. service under conditions other than The Dependency Application/Record of dishonorable from the last period of Emergency Data (NAVPERS 1070/602) the duty or training performed; and or Record of Emergency Data (DD (2) Death resulted from disease or in- Form 93), will normally contain this jury incurred or aggravated while on information. In addition, in the case of such active duty or active duty for enlisted personnel, the Application for training; or while performing author- Dependents Allowance (BAQ [Basic Al- ized travel to or from such duty; or lowance for Quarters]), NAVPERS (3) Death resulted from injury in- Form 668, may serve as a source of cor- curred or aggravated while on such in- roboration. He will, with the coopera- active-duty training or while traveling tion of the disbursing officer, initiate

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preparation of a Claim Certification ian appointed by the civil court to and Voucher for Death Gratuity Pay- manage the minor’s financial affairs. ment, DD Form 397, in original and five [24 FR 7523, Sept. 18, 1959, as amended at 37 copies, completing blocks 5 through 14 FR 6471, Mar. 30, 1972; 44 FR 25647, May 2, inclusive, and the administrative state- 1979] ment in block 18. The administrative statement in block 18 will be signed by § 716.9 Erroneous payment. the commanding officer or acting com- Where through administrative mis- manding officer. take of fact or law, payment of the (2) The disbursing officer will, upon death gratuity is made to a person receipt of the DD Form 397, draw a clearly not entitled thereto, and it is check to the order of the eligible sur- equally clear that another person is en- vivor named in block 5, complete titled to the death gratuity, the Chief blocks 2, 3, 4, and the check payment of Naval Personnel (Pers–732) or the data portion of block 18. Commandant of the Marine Corps (3) Under arrangements made by the (Code MSPA–1), as appropriate, will commanding officer, the check and the certify payment to the proper payee, original and one copy of the voucher, irrespective of recovery of the erro- DD Form 397, will be delivered to the neous payment. On the other hand, payee. The payee will be required to where a payment of the death gratuity complete block 15, sign in block 17a, has been made to an individual on the and have two witnesses complete block basis of representations of record made 17 on the original voucher at the time by the deceased member as to his mar- the check is delivered. Under no circumstances will the check be delivered ital and dependency status, and the to the payee until this action has been Government otherwise has no informa- accomplished. The payee will retain tion which would give rise to doubt the copy of the voucher, DD Form 397, that such status is as represented, the and the signed original voucher will be payment is not to be regarded as ‘‘er- returned by hand to the disbursing offi- roneous.’’ The Government has a good cer by the person designated to deliver acquittance in such cases even though the check. it may subsequently develop that the payee is not the proper statutory payee [24 FR 7523, Sept. 18, 1959, as amended at 44 of the gratuity and no second payment FR 25647, May 2, 1979] is authorized. § 716.8 Payments excluded. [24 FR 7523, Sept. 18, 1959, as amended at 44 (a) No payment shall be made if the FR 25647, May 2, 1979] deceased member suffered death as a result of lawful punishment for a crime Subpart B—Provisions Applicable or for a military or naval offense, ex- to the Navy cept when death was so inflicted by any hostile force with which the Armed § 716.10 Procedures. Forces of the United States have en- (a) Action by commanding officers. See gaged in armed conflict. § 716.7(b)—(1) Immediate payment—Eligi- (b) No payment will be made to a sur- ble beneficiary residing with deceased vivor implicated in the homicide of the member. Commanding officers, in order deceased in the absence of evidence to expedite the payment of the death clearly absolving such survivor of any gratuity, will, upon official notifica- felonious intent. tion of death, ascertain the duty status (c) Unless the laws of the place where of the deceased, and determine the eli- a minor beneficiary resides provide gibility of the spouse or designated that such a payment would grant a beneficiary who was residing with the valid acquittance of the Government’s deceased member on or near his duty obligation to make a payment of death station at the time of his death. The gratuity to or for a minor, a death gra- services of a staff or district legal offi- tuity of more than $1,000 may not be cer will be utilized as required. Every paid in whole or in part to a parent as effort should be made to effect prompt natural guardian of a minor or to any payment (within 24 hours, if possible). other person who is not a legal guard- It is the intent that determinations of

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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 guardianship must be provided for the with the request that payment of the protection of the decedent’s children, death gratuity be made upon receipt of or wherein a technicality exists which the certification of beneficiary entitle- makes immediate certification legally ment from the Chief of Naval Per- unsound, will be considered question- sonnel (Pers-732). able. (2) Navy Relief. In cases where there (3) Where the entitlement Exception. is immediate need prior to receipt of of the survivor who is living with the the death gratuity, the Navy Relief So- deceased at the time of his death is ciety will be contacted by the Casualty questionable and such survivor is in Assistance Calls Program officer. dire financial circumstances, the Chief of Naval Personnel (Pers–G23) shall be (c) Action by the Chief of Naval Per- requested by message to make an adju- sonnel. (1) In all cases where death gra- dication of entitlement. If it is deter- tuity is not authorized to be paid lo- mined that the survivor is entitled to cally and in cases where authority ex- the payment, the commanding officer ists to pay locally but entitlement is will be authorized by message to exe- questionable (see paragraph (a)(2) of cute DD Form 397. this section), the Chief of Naval Per- (b) Action by Casualty Assistance Calls sonnel (Pers–732) will expedite adju- Program (CACP) officers; Potential bene- dication of claims. As indicated in ficiary not residing with member—(1) paragraph (b)(1) of this section CACP Widow(er). The CACP officer, on his or officers will refer cases of urgent finan- her initial visit to a widow(er), deter- cial need to the Chief of Naval Per- mines, propriety permitting, whether sonnel (Pers–732) by message for ac- there is an urgent need for financial as- tion. sistance. If there is an urgent need for (2) If a minor is entitled to a death financial assistance, the CACP officer gratuity under 10 U.S.C. 1477 not ex- should obtain DD Form 397 from any ceeding $1,000, such death gratuity may military disbursing office and, on his be paid to the father or mother as nat- or her second visit to the widow(er), ural guardian on behalf of the minor, have him or her sign it and obtain the provided a legally appointed guardian signatures of two witnesses on the has not been appointed, upon substan- form. It should be noted that the fol- tiation by a sworn (notarized) state- lowing procedure is confined to cases in ment of the natural guardian: which the decedent’s eligible survivor (i) That no legal guardian has been for the death gratuity is a widow(er), appointed and that such an appoint- and efforts to effect immediate payment is not contemplated;

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(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 gratuity is made by the Chief of Naval PART 718—MISSING PERSONS ACT Personnel (Pers–732) and payment is effected by the Navy Finance Center, Sec. Cleveland, OH 44199; 718.1 General provisions. 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 which the member is attached and (a) Under the provisions of the Miss- which maintains his service record is ing Persons Act, as amended, a finding in the immediate vicinity and certifi- of presumptive death is made by the cates the beneficiary eligible to receive Secretary of the Navy when a survey of payment on the proper voucher (DD all available sources of information in- Form 397). Otherwise the pay record dicates beyond doubt that the pre- will be sent to the Army Finance Cen- sumption of continuance of life has ter, Air Force Finance Center, Com- been overcome. When a finding of pre- mandant of the Marine Corps (Code sumptive death is made, a man’s pay CDB), the Navy Finance Center, of the accounts are closed as of the day fol- Commandant, U.S. Coast Guard, as ap- lowing the expiration of the 12 months’ propriate. absence or a longer period when justified, and the various benefits, such as [24 FR 7523, Sept. 18, 1959, as amended at 44 the six months’ gratuity, become pay- FR 25647, May 2, 1979; 45 FR 43165, June 26, able. A finding of presumptive death 1980] concerning an officer or enlisted man of the Navy means simply that as of Subpart C—Provisions Applicable the date thereof he is for the purposes to the Marine Corps of Naval administration no longer alive. It does not mean that death oc- § 716.11 Procedures. curred on that or on any other certain (a) Action. Commanding officers will date. direct immediate payment of the gra- (b) Findings of presumptive death are tuity where the deceased member’s never made when the ‘‘missing’’ status spouse was, in fact, residing with the has not continued for at least 12 member on or near the station of duty months. Whenever, subsequent to the at the time of the member’s death expiration of the 12th month, cumu- while on active duty, active duty for lative or other evidence establishes by training, or inactive-duty training. its preponderance that a ‘‘missing’’ Every effort should be made to effect person is no longer alive, a prompt such payment promptly (within 24 finding of presumptive death will be hours, if possible). In cases where the made. Also, such a finding will be made eligible survivor residing with the whenever justified by the lapse of time member on or near the duty station is beyond the 12 months’ absence without other than a spouse, commanding offi- specific information being received. cers may direct the payment of death (c) The Secretary of the Navy, or gratuity when the case can be properly such subordinate as he may designate,

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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 to the expiration of 12 months when person’s application if injured, to such the evidence received is considered to location as may have been determined establish conclusively the fact of death in advance or as may be subsequently and settlement of accounts is made to approved, except that a reasonable re- the date established as the date of relationship must exist between the con- ceipt of evidence on which the fact of dition and circumstances of the de- death is established. pendents and the destination to which (Sec. 301, 80 Stat. 379; 5 U.S.C. 301. Interpret transportation is requested. In the case or apply 80 Stat. 112–117, 248–254; 5 U.S.C. of a person in an injured status, trans- 5561–5568, 37 U.S.C. 551–558) portation of his dependents or house- [17 FR 5390, June 14, 1952] hold and personal effects may be authorized only when the hospitalization § 718.2 Allotments. or treatment of the injured person will During such period as a person is in a be of prolonged duration. Payment in status of missing, missing in action, in- money of amounts equal to such com- terned in a foreign country, captured mercial transportation costs or a mon- by a hostile force, beleaguered by a etary allowance in lieu of transpor- hostile force, or besieged by a hostile tation as authorized by law for the force, allotments from his pay and al- whole or such part of the travel for lowances may be initiated, continued, which transportation in kind is not discontinued, increased, decreased, sus- furnished, may be authorized, when pended or resumed in behalf of his de- such travel has been completed. pendents and for such other purposes (b) When the Secretary of the Navy as are justified by the circumstances or his designee determines that an and are in the interests of the person emergency exists and that such sale or of the Government. would be in the best interests of the Government, he may provide for the (R.S. 161, sec. 5031, 70A Stat. 278, as amended; disposition of the motor vehicles and 5 U.S.C. 22, 10 U.S.C. 5031, 50 U.S.C. App. 1013– other bulky items of such household 1015) and personal effects of the person by [26 FR 12658, Dec. 29, 1961] public or private sale. Prior to any such sale, and if practicable, a reason- § 718.3 Transportation of dependents. able effort shall be made to determine (a) Whenever a person in active serv- the desires of the interested persons. ice is officially reported as dead, in- The net proceeds received from such

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sale shall be transmitted to the owner, note which should be written on a copy next of kin, heir or legal representa- of the inventory or in a letter: tive, or other person determined in accordance with paragraph (d) of this sec- Delivery of the personal effects into the custody of other than the owner thereof, by tion; but if there be no such persons or the Department of the Navy, does not in any if such persons or their addresses are way vest title to the effects in the recipient. not ascertainable within one year from Delivery of the effects to the recipient is the date of sale, the net proceeds may made so that distribution may be made in be covered into the Treasury as mis- accordance with the laws of the state in cellaneous receipts. which the owner of the effects was legally (c) The Secretary of the Navy or his domiciled or to restore the effects to the designee is authorized to store the owner in the event of his return from a missing status. household and personal effects of the person until such time as proper dis- (3) When it is impracticable to divide position can be made. The cost of such the personal effects of a person into storage and transportation, including equal shares, and two or more persons packing, crating, drayage, temporary within a class, as provided in 10 U.S.C. storage, and unpacking of household section 2771, are entitled to receive the and personal effects, will be charged effects but cannot agree among them- against appropriations currently avail- selves as to which one of them shall re- able. ceive the effects, then all of the effects (d) The following provisions apply to will be retained by either the Personal the determination of the ‘‘other per- Effects Distribution Center at Norfolk, son’’ or persons referred to in para- VA, or the Personal Effects Distribu- graphs (a) and (b) of this section who tion Center at Oakland, CA, for a pe- may receive the effects or proceeds. riod of two years from the date of (1) If no duly appointed legal rep- death of the member. At the expiration resentative of the owner of the per- of the two-year period such effects will sonal effects makes demand upon the be sold. Department of the Navy for the effects, (R.S. 161, sec. 5031, 70A Stat. 278, as amended; the determination by naval authorities 5 U.S.C. 22, 10 U.S.C. 5031, 50 U.S.C. App. 1013– as to the next of kin or heirs of the 1015; Pub. L. 89–554, 80 Stat. 379 (5 U.S.C. 301) owner of the personal effects may be made on the basis of the following: [26 FR 12659, Dec. 29, 1961, as amended at 37 (i) Personnel records; or FR 6472, Mar. 30, 1972; 44 FR 22456, Apr. 16, 1979] (ii) Other documents applicable to the case; or § 718.4 Delegations. (iii) Title 10 U.S.C., section 2771, to the extent that it prescribes an order The Secretary of the Navy has dele- of precedence among next of kin or gated to the Director, Personal Serv- heirs, namely, the widow or widower of ices Division, Bureau of Naval Per- the owner; if no widow or widower, sonnel with respect to personnel in the then the child or children of the owner Navy, and to the Head, Personal Af- and descendants of deceased children, fairs Branch Manpower Department by representation; if none of the above, (Code MSPA), United States Marine the parents of the owner or the sur- Corps, with respect to personnel in the vivor of them; or if none of the above, Marine Corps, authority to make all other persons determined to be eligible determinations to administer the act. under the laws of the domicile of the (Pub. L. 89–554, 80 stat. 379 (5 U.S.C. 301)) owner. (2) Such determination should be re- [17 FR 5391, June 14, 1952, as amended at 19 FR 7959, Dec. 2, 1954; 44 FR 22456, Apr. 16, garded as administrative rather than 1979] legal, as the determination does not vest title to effects or proceeds in the next of kin, heirs, or legal representa- PART 719—REGULATIONS SUPPLE- tive to whom the effects are delivered. MENTING THE MANUAL FOR Therefore, delivery of the personal ef- COURTS-MARTIAL fects to other than the owner will be made subject to the following advisory Subparts A–B [Reserved] 192

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Subpart C—Trial Matters monial immunity to a witness is reserved to officers exercising general Sec. court-martial jurisdiction. This au- 719.112 Authority to grant immunity from 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 below. Subpart E—Miscellaneous Matters (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 719.155 Application under 10 U.S.C. 874(b) for recommendation will be forwarded by the substitution of an administrative the trial counsel or defense counsel in form of discharge for a punitive dis- cases referred for trial, the pretrial in- charge or dismissal. vestigating officer conducting an in- AUTHORITY: 3 U.S.C. 301; 5 U.S.C. 301; 10 vestigation upon preferred charges, the U.S.C. 815, 5013, 5148; 32 CFR 700.206 and counsel or recorder of any other fact- 700.1202. finding body, or the investigator when no charges have yet been preferred. Subparts A–B [Reserved] The recommendation shall state in detail why the testimony of the witness Subpart C—Trial Matters is deemed so essential or material that the interests of justice cannot be § 719.112 Authority to grant immunity served without the grant of immunity. from prosecution. The officer exercising general court- (a) General. In certain cases involving martial jurisdiction shall act upon more than one participant, the inter- such request after referring it to his ests of justice may make it advisable staff judge advocate for consideration to grant immunity, either trans- and advice. If approved, a copy of the actional or testimonial, to one or more written grant of immunity must be of the participants in the offense in served upon the accused or his defense consideration for their testifying for counsel within a reasonable time be- the Government or the defense in the fore the witness testifies. Additionally, investigation and/or the trial of the if any witness is expected to testify in principal offender. Transactional im- response to a promise of leniency, the munity, as that term is used in this terms of the promise of leniency must section, shall mean immunity from be reduced to writing and served upon prosecution for any offense or offenses the accused or his defense counsel in to which the compelled testimony re- the same manner as a grant of immu- lates. Testimonial immunity, as that nity. term is used in this section, shall mean (c) Civilian witnesses. Pursuant to 18 immunity from the use, in aid of future U.S.C. 6002 and 6004, if the testimony or prosecution, of testimony or other in- other information of a civilian witness formation compelled under an order to at a court-martial may be necessary in testify (or any information directly or the public interest, and if the civilian indirectly derived from such testimony witness has refused or is likely to or other information). The authority to refuse to testify or provide other infor- grant either transactional or testi- mation on the basis of a privilege

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against self-incrimination, then the ap- (3) Name of the employer or company proval of the Attorney General of the with which a witness is associated or United States, or his designee, must be the military unit or organization to obtained prior to the execution or which a witness is assigned. issuance of an order to testify to such (4) Date and place of birth, if known, civilian witness. The cognizant officer of the witness. exercising general court-martial juris- (5) FBI or local police file number, if diction may obtain the approval of the any, and if known. Attorney General in such a cir- (6) Whether any State or Federal cumstance by directing a message or charges are pending against the wit- letter requesting the assistance of the ness and the nature of the charges. Judge Advocate General (Code 20) in (7) Whether the witness is currently the form prescribed in paragraph (e) of incarcerated, under what conditions, this section. and for what length of time. (d) Cases involving national security. In (8) A brief resume of the background all cases involving national security or of the investigation or proceeding be- foreign relations of the United States, fore the agency or department. the cognizant officer exercising general court-martial jurisdiction shall for- (9) A concise statement of the rea- ward any proposed grant of immunity sons for the request, including: to the Judge Advocate General for the (i) What testimony the witness is ex- purpose of consultation with the De- pected to give; partment of Justice. See section 0126 of (ii) How this testimony will serve the the Manual of the Judge Advocate Gen- public interest; eral regarding relations between the (iii) Whether the witness: Departments of Defense and Justice. (A) Has invoked the privilege against The cognizant officer exercising gen- self-incrimination; or eral court-martial jurisdiction may ob- (B) Is likely to invoke the privilege; tain approval by the Attorney General (iv) If paragraph (e)(9)(iii)(B) of this of a proposed grant of immunity by di- section is applicable, then why it is an- recting a letter requesting the assist- ticipated that the prospective witness ance of the Judge Advocate General will invoke the privilege. (Code 20) in the form prescribed in (10) An estimate as to whether the paragraph (e) of this section. witness is likely to testify in the event (e) Content of immunity requests. In all immunity is granted. cases in which approval of the Attor- (f) Post-testimony procedure. After a ney General of the United States is re- witness immunized in accordance with quired prior to the issuance of a grant paragraphs (c) and (d) of this section of immunity, whether under paragraph has testified, the following information (c) or (d) of this section, the cognizant should be provided to the United States officer exercising general court-martial Department of Justice, Criminal Divi- jurisdiction shall forward by message sion, Immunity Unit, Washington, DC or letter the proposed order to testify 20530, via the Judge Advocate General and grant of immunity to the Judge (Code 20). Advocate General (Code 20). The order to testify should be substantially in (1) Name, citation, or other identi- the form set forth in appendix A-1-i(3) fying information, of the proceeding in of the Manual of the Judge Advocate which the order was requested. General. Requests for assistance shall (2) Date of the examination of the be in writing, should allow at least witness. three weeks for consideration, and (3) Name and residence address of the must contain the following informa- witness. tion: (4) Whether the witness invoked the (1) Name, citation, or other identi- privilege. fying information of the proceeding in (5) Whether the immunity order was which the order is to be used. used. (2) Name of the witness for whom the (6) Whether the witness testified pur- immunity is requested. suant to the order.

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(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 pating in the grant of immunity would from the time of apprehension, the not be so disqualified under those cir- preferral of charges, or the commence- cumstances. (h) Form of grant. In any case in ment of an investigation directed to which a military witness is granted make recommendations concerning transactional immunity, the general disciplinary action, until the imposi- court-martial convening authority tion of nonjudicial punishment, com- should execute a written grant, sub- pletion of trial (court-martial sessions) stantially in the form set forth in ap- or disposition of the case without trial. pendix section A-1-i(1) of the Manual of These regulations also prescribe guide- the Judge Advocate General. In any lines for the release or dissemination case in which a military witness is of information to public news agencies, granted testimonial immunity, the to other public news media, or to other general court-martial convening au- persons or agencies for unofficial pur- thority should execute a written grant poses. substantially in the form set forth in (3) Release of information. (i) As a gen- appendix section A-1-i(2) of the Manual eral matter, release of information per- of the Judge Advocate General. taining to accused persons should not be initiated by persons in the naval [56 FR 57803, Nov. 14, 1991] service. Information of this nature §§ 719.113–719.114 [Reserved] should be released only upon specific request therefor, and, subject to the § 719.115 Release of information per- following guidelines, should not exceed taining to accused persons; spec- the scope of the inquiry concerned. tators at judicial sessions. (ii) Except in unusual circumstances, (a) Release of information—(1) General. information which is subject to release There are valid reasons for making in- under the regulation should be released formation available to the public con- by the cognizant public affairs officer; cerning the administration of military requests for information received from justice. The task of striking a fair bal- representatives of news media should ance among the protection of individ- be referred to the public affairs office uals accused of offenses, improper or for action. When an individual is sus- unwarranted publicity pertaining to pected or accused of an offense, care

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should be taken to indicate that the in- (iii) The existence or contents of any dividual is alleged to have committed confession, admission, statement, or or is suspected or accused of having alibi given by the accused, or the re- committed an offense, as distinguished fusal or failure of the accused to make from stating or implying that the ac- any statement. cused has committed the offense or of- (iv) The performance of any examina- fenses. tion or test, such as polygraph exami- (4) Information subject to release. On nations, chemical tests, ballistics inquiry, the following information contests, etc., or the refusal or the failure cerning a person accused or suspected of the accused to submit to an exam- of an offense or offenses may generally ination or test. be released except as provided in para- (v) The identity, testimony, or credi- graph (6) of this section: bility of possible witnesses, except as (i) The accused’s name, grade, age, authorized in paragraph (4)(iii), of this unit, regularly assigned duties, duty section. station, and sex. (vi) The possibility of a plea of guilty (ii) The substance of the offenses of to any offense charged or to a lesser of- which the individual is accused or sus- fense and any negotiation or any offer pected. to negotiate respecting a plea of guilty. (iii) The identity of the victim of any (vii) References to confidential alleged or suspected offense, except the sources or investigative techniques or victim of a sexual offense. procedures. (iv) The identity of the apprehending (viii) Any other matter when there is and investigative agency, and the iden- a reasonable likelihood that the dis- tity of accused’s counsel, if any. semination of such matter will affect 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 of the accused, including the time and the due administration of military jus- place of apprehension, resistance, pur- tice either before, during, or after trial. suit, and use of weapons. (6) Exceptional cases. The provisions (vi) The type and place of custody, if of this section are not intended to re- any. strict the release of information de- (vii) Information which has become a signed to enlist public assistance in ap- part of the record of proceedings of the prehending an accused or suspect who court-martial in open session. is a fugitive from justice or to warn the (viii) The scheduling of any stage in public of any danger that a fugitive ac- the judicial process. cused or suspect may present. Further, (ix) The denial by the accused of any since the purpose of this section is to offense or offenses of which he may be prescribe generally applicable guide- accused or suspected (when release of lines, there may be exceptional cir- such information is approved by the cumstances which warrant the release counsel of the accused). of information prohibited under para- (5) Prohibited information. The fol- graph (a)(5) of this section or the non- lowing information concerning a per- release of information permitted under son accused or suspected of an offense paragraph (a)(4) of this section. Atten- or offenses generally may not be re- tion should be given to the Secretary leased, except as provided in paragraph of the Navy instructions implementing (a)(6) of this section. the Freedom of Information Act (i) Subjective opinions, observations, (5720.42 series) and the Privacy Act or comments concerning the accused’s (5211.5C series). Consultation with the character, demeanor at any time (ex- command judge advocate, if one is as- cept as authorized in paragraph (4)(v) signed, or with the cognizant Naval of this section), or guilt of the offense Legal Service Office concerning inter- or offenses involved. pretation and application of these in- (ii) The prior criminal record (includ- structions is encouraged. ing other apprehensions, charges or (b) Spectators. (1) The sessions of trials) or the character or reputation of courts-martial shall be open to the the accused. public, which includes members of both

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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 Judge Advocate General, the presiding public voucher, properly completed as officer, upon motion of the Govern- hereinbefore prescribed, and accom- ment or the defense or upon his mo- panied by an order from the officer who tion, may direct that all or part of the authorized the taking of the deposi- hearing be held in closed session and tion, subscribed by him and directing that all persons not connected with the the disbursing officer to pay to the wit- hearing be excluded therefrom. The de- ness the fees and mileage supported by cision to exclude spectators shall be the public voucher. When the civilian based on the ground that dissemination witness testifies outside the United of evidence, information, or argument States, its territories and possessions, presented at the hearing may disclose the public voucher must be accom- matters that will be inadmissible in panied by a certified copy of the order evidence at a subsequent trial by appointing the court-martial, court of court-martial and is therefore likely to inquiry, or investigation, and by an interfere with the right of the accused order from the convening authority or to a fair trial by an impartial tribunal. appointing authority, subscribed by him and directing the disbursing offi- [38 FR 5997, Mar. 6, 1973, as amended at 47 FR 49644, Nov. 2, 1982; 50 FR 23800, June 6, 1985] cer to pay to the witness the fees and mileage supported by the public voucher. Subpart D [Reserved] (b) Obtaining money for advance tender or payment. Upon written request by Subpart E—Miscellaneous Matters one of the officers listed in paragraph (a) of this section, the disbursing offi- § 719.138 Fees of civilian witnesses. cer under the command of the con- (a) Method of Payment. The fees and vening or appointing authority, or the mileage of a civilian witness shall be disbursing officer nearest the place paid by the disbursing officer of the where the witness is found, will, at command of a convening authority or once, provide any of the persons listed appointing authority or by the disin paragraph (a) of this section, or any bursing officer at or near the place other officer or person designated for

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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 receiving 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 witness may be paid accrued fees at his re- (2) Civilian witnesses in Government quest at any time during the period of employ. When summoned as a witness, a attendance. The disbursing officer will civilian in the employ of the Govern- make such interim payment(s) upon re- ment shall be paid as authorized by ceipt of properly executed certifi- Joint Travel Regulations. cate(s). Upon his discharge from at- (j) Supplemental construction of sec- tendance, the witness will be paid, tion. Nothing in this paragraph shall be upon the execution of a certificate, a construed as permitting or requiring final amount covering unpaid fees and the payment of fees to those witnesses travel, including an amount for return not requested or whose testimony is travel. Payment for return travel will determined not to meet the standards be made upon the basis of the actual of relevancy and materiality set forth fees and mileage allowed for travel to in accordance with MCM, 1984, R.C.M. the court, or place designated for tak- 703. ing a deposition. (k) Expert witnesses. (1) The convening (f) Computation. Travel expenses shall authority will authorize the employ- be determined on the basis of the ment of an expert witness and will fix shortest usually traveled route in ac- the limit of compensation to be paid cordance with official schedules. Rea- such expert on the basis of the normal sonable allowance will be made for un- compensation paid by United States at- avoidable detention. torneys for attendance of a witness of (g) Nontransferability of accounts. Ac- such standing in United States courts counts of civilian witnesses may not be in the area involved. Information con- transferred or assigned. cerning such normal compensation (h) Signatures. Signatures of wit- may be obtained from the nearest offi- nesses signed by mark must be wit- cer exercising general court–martial nessed by two persons. jurisdiction having a judge advocate (i) Rates for civilian witnesses pre- assigned in other than an additional scribed by law—(1) Civilian witnesses not duty, temporary duty, or temporary in Government employ. A civilian not in additional duty capacity. Convening Government employ, who is compelled authorities at overseas commands will or required to testify as a witness be- adhere to fees paid such witnesses in

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the Hawaiian area and may obtain in- mental or physical disability or has formation as to the limit of such fees been engaged in professional or per- from the Commander, Naval Base, sonal misconduct of such a serious na- Pearl Harbor. See paragraph (l) of this ture as to demonstrate that he or she is section for fees payable to foreign na- lacking in integrity or is failing to tionals. meet the ethical standards of the pro- (2) The provisions of paragraph (i) of fession or is otherwise unworthy or un- this section are applicable to expert qualified to perform the duties of a witnesses. However, the expert witness judge advocate or attorney, such infor- fee prescribed by the convening author- mation should be reported to the comity will be paid in lieu of ordinary at- manding officer of that judge advocate tendance fees on those days the witness or, in the case of civilian counsel, to is required to attend the court. the officer exercising general court- (3) An expert witness employed in martial jurisdiction over the command strict accordance with MCM, 1984, convening the proceedings or to the R.C.M. 703(d), may be paid compensa- Judge Advocate General. tion at the rate prescribed in advance (b) Form of Report. The report shall: by the official empowered to authorize (1) Be in writing, under oath or affir- his employment (11 Comp. Gen. 504). In mation, and made and signed by the in- the absence of such authorization, no dividual reporting the information. fees other than ordinary witness fees (2) State that the individual report- may be paid for the employment of an ing the information has personal individual as an expert witness. After knowledge or belief or has otherwise an expert witness has testified pursu- received reliable information indi- ant to such employment, the certifi- cating that: cate of one of the officers listed in sub- (i) The counsel is, or has been, unable section a above, when presented to the to discharge properly all the duties of disbursing officer, shall also enclose a his or her office by reason of mental or certified copy of the authorization of physical disability; or the convening authority. (ii) The counsel is or has been en- (l) Payment of witness fees to foreign gaged in professional or personal mis- nationals: Officers exercising general conduct of such a serious nature as to court-martial jurisdiction in areas demonstrate that he or she is lacking other than a State of the United States in integrity or is failing to meet the shall establish rates of compensation ethical standards of the profession; or for payment of foreign nationals who (iii) The counsel is unworthy or un- testify as witnesses, including expert qualified to perform his or her duties; witnesses, at courts-martial convened (3) Set forth the grounds of the alle- in such areas. gation together with all relevant facts; [38 FR 5997, Mar 6, 1973, as amended at 47 FR and 49644, Nov. 2, 1982; 50 FR 23801, June 6, 1985] (4) Be forwarded to the appropriate authority as set forth in paragraph (a). §§ 719.139–719.141 [Reserved] (c) Consideration of the Report—(1) Ac- tion by the Commanding Officer of a § 719.142 Suspension of counsel. judge advocate. Upon receipt of the re- (a) Report of Allegations of Misconduct port, the commanding officer: or Disability. When information comes (i) Shall dismiss any report relating to the attention of a member of a to the performance of a judge advocate court-martial, a military judge, trial more properly appealed under law or or defense counsel, staff judge advo- any report that is frivolous, unfounded, cate, member of the Navy-Marine or vague and return it to the reporting Corps Court of Military Review or individual; other directly interested or concerned (ii) May make further inquiry into party that a judge advocate or civilian the report at his or her discretion to who is acting or is about to act as determine the merits of the report. The counsel before a proceeding conducted commanding officer may appoint an of- under the UCMJ or MCM is or has been ficer to investigate informally the alle- unable to discharge properly all the du- gations of the report to determine ties of his or her position by reason of whether further action is warranted.

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Any officer so appointed should be a ure to appear on a set date after notice judge advocate senior in rank to the shall constitute waiver of appearance, judge advocate being investigated; absent good cause shown. The respond- (iii) May take appropriate action to ent shall be generally afforded the address and dispose of the matter being rights of a party as set out in section mindful of such measures as warning, 0304 of this Manual, except that, in the counseling, caution, instruction, pro- event the judge advocate respondent ceedings in contempt, therapy, and wishes to have military counsel ap- other punitive or administrative ac- pointed, he or she shall not have the tion; or right to select or identify a particular (iv) Shall, if the commanding officer military counsel. A civilian respondent is of the opinion that evidence of dis- may not be represented by military ability or professional or personal mis- counsel, but may be represented by ci- conduct exists, and that remedial vilian counsel at no expense to the measures short of suspension or decer- Government. Upon ascertaining the tification are not appropriate or will relevant facts after notice and hearing, not be effective, forward the original a written report of the findings and complaint, a written report of the in- recommendations of the board shall be quiry or investigation, all other rel- made to the officer who convened the evant information, and his or her com- board. In all cases, a written copy of ments and recommendations to the of- the board’s findings and recommenda- ficer in the chain of command exer- tions shall be provided to the respond- cising general court-martial authority. ent. The respondent shall be given an (2) Action by Officer Exercising General opportunity to comment on the report Court-Martial Authority. (i) Upon rein writing. ceipt of a report of an allegation of (ii) Upon receipt of the report of the misconduct or disability of a counsel, board of investigation, the officer exer- the officer exercising general court- cising general court-martial authority martial convening authority: shall: (A) May take the action authorized (A) Return the report to the board for by subsections (c)(1)(i), (ii) or (iii); or further investigation, if the investiga- (B) Shall, if he or she considers that tion is determined to be incomplete; or evidence of disability or professional or (B) Forward the report of the board personal misconduct exists and that of investigation to the Judge Advocate other remedial measures short of sus- General together with comments and pension or decertification are not ap- recommendations concerning suspen- propriate or will not be effective, ap- sion of the counsel involved. point a board of officers to investigate (3) Action by the Judge Advocate Gen- the matter and to report its findings eral. (i) Upon receipt of a report of an and its recommendations. This board allegation of misconduct or disability shall be comprised of at least three of- of a counsel, the Judge Advocate Gen- ficers, each an Article 27(b), Uniform eral: Code of Military Justice, certified (A) May take the action authorized judge advocate. If practicable, each of by subsections (c)(1)(i), (ii), or (iii); the officers of the board should be sen- (B) May appoint a board of officers ior to the judge advocate under inves- for investigation and hearing in ac- tigation. If the counsel is a member of cordance with subsections (c)(2)(i)(B) the Marine Corps, a majority of the or members of the board should be Marine (C) May request the officer exercising Corps judge advocates. The senior offi- general court-martial jurisdiction over cer of the board shall cause notice to the command of the respondent (if be given to the counsel, judge advocate judge advocate counsel) or over the or civilian (respondent), informing him proceedings (if civilian counsel) to take or her of the misconduct or other dis- the matter for investigation and hear- qualification alleged and affording him ing in accordance with subsection or her the opportunity to appear before (c)(2)(i)(B). the board for a hearing. The respondent (ii) Upon receipt of the report of the shall be permitted at least ten (10) investigating board, the Judge Advo- days’ notice prior to the hearing. Fail- cate General:

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(A) May determine whether the re- (vi) Flagrant or repeated violations spondent is to be suspended or decerti- of any specific rules of conduct pre- fied and, if so, whether for a stated scribed for counsel in the Manual for term or indefinitely; Courts-Martial. (B) May determine that the findings (vii) Conviction of an offense involv- of the board do not warrant further ac- ing moral turpitude or conviction for tion; or violation of article 48, UCMJ. (C) May return the report to the (viii) Disbarment by a State Bar, sending officer with appropriate in- Federal Court, or the United States structions for further inquiry or ac- Court of Military Appeals. tion. The Judge Advocate General may, (ix) Suspension as counsel by the sua sponte, or upon petition of the re- Judge Advocate General of the Navy, 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. fice by reason of mental or physical (xii) Failure to meet the rules set disability or has been engaged in pro- forth in the ABA Code of Professional fessional or personal misconduct of Responsibility and the ABA Standards such a serious nature as to dem- on Fair Trial and Free Press and The onstrate that he or she is lacking in in- Prosecution Function and the Defense tegrity or is failing to meet the ethical Function. In view of the unique mission standards of the profession or is other- and personal requirements of the mili- wise unworthy or unqualified to per- tary, many of the rules and principles form the duties of a counsel Action to of the ABA Code or Standards are not suspend or decertify should not be ini- applicable to the military lawyer. Ac- tiated because of personal prejudice or cordingly, the rules are to be used as a hostility toward counsel, nor should guide only, and a failure to comply such action be initiated because coun- with the specific wording of a rule is sel has initiated an aggressive, zealous not to be construed as a violation of or novel defense, or the apparent mis- the rule where common sense would in- conduct stems from inexperience or dicate to a reasonable person that lack of instruction. there is a distinction between the civil- (2) Specific grounds for suspension or ian context, which the codes were decertification include, but are not drafted to embrace, and the unique limited to, the following: concerns of the military setting, where (i) Demonstrated incompetence while the codes serve as a general guide. acting as counsel before, during or [50 FR 23801, June 6, 1985] after a court-martial. (ii) Preventing or obstructing justice, § 719.143 Petition for new trial under including the deliberate use of frivo- 10 U.S.C. 873. lous or unwarranted dilatory tactics. (a) Statutory provisions. 10 U.S.C. 873, (iii) Fabricating papers or other evi- provides, ‘‘At any time within 2 years dence. after approval by the convening au- (iv) Tampering with a witness. thority of a court-martial sentence, (v) Abusive conduct toward the the accused may petition the Judge court-martial, the Navy-Marine Corps Advocate General for a new trial on the Court of Military Review, the military grounds of newly discovered evidence judge, or opposing counsel. or fraud on the court. If the accused’s

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case is pending before a Court of Mili- evant facts within the personal knowl- 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, or affirmation by the accused, by a per- would probably produce a substantially son possessing the power of attorney of more favorable result for the accused. the accused for that purpose, or by a (2) No fraud on the court-martial person with the authorization of an ap- warrants a new trial unless it had a propriate court to sign the petition as substantial contributing effect on a the representative of the accused. The finding of guilty or the sentence ad- petition shall contain the following in- judged. formation, or an explanation why such (f) Action on the petition. (1) The au- matters are not included: thority considering the petition may (1) The name, service number, and cause such additional investigation to current address of the accused; be made and such additional informa- (2) The date and location of the trial; tion to be secured as that authority believes appropriate. Upon written re- (3) The type of court-martial and the quest, and in his discretion, the au- title or position of the convening authority considering the petition may thority; permit oral argument on the matter. (4) The request for the new trial; (2) When a petition is considered by (5) The sentence or a description the Judge Advocate General, any hear- thereof as approved or affirmed, with ing may be before the Judge Advocate any later reduction thereof by clem- General or before an officer or officers ency or otherwise, designated by the Judge Advocate Gen- (6) A brief description of any finding eral. or sentence believed to be unjust; (3) If the Judge Advocate General be- (7) A full statement of the newly dis- lieves meritorious grounds for relief covered evidence or fraud on the court- under Article 74, Uniform Code of Mili- martial which is relied upon for the tary Justice have been established but remedy sought; that a new trial is not appropriate, the (8) Affidavits pertinent to the mat- Judge Advocate General may act under ters in subsection (6)i; and article 74, Uniform Code of Military (9) Affidavit of each person whom the Justice, if authorized, or transmit the accused expects to present as a witness petition and related papers to the Sec- in the event of a new trial. Each affi- retary concerned with a recommenda- davit should set forth briefly the rel- tion.

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(4) The Judge Advocate may also, in original record of trail is held by the cases which have been finally reviewed command that reviewed the case under but have not been reviewed by a Court 10 U.S.C. 864(a) or (b), it shall be for- of Military Review, act under article warded as a enclosure to the endorse- 69, Uniform Code of Military Justice. ment. If the original record of trial has [50 FR 23803, June 6, 1985] been filed in the National Personnel Records Center, the endorsement will § 719.144 Application for relief under include all necessary retrieval data 10 U.S.C. 869, in cases which have (accession number, box number, and been finally reviewed. shelf location) obtained from the re- (a) Statutory provisions. 10 U.S.C. 869 ceipt returned from the National Per- provides in pertinent part, ‘‘The find- sonnel Records Center to the sending ings or sentence, or both, in a court- activity. This endorsement shall also martial case not reviewed under sub- include information and specific com- section (a) or under section 866 of this ment on the grounds for relief asserted title (article 66) may be modified or set in the application, and an opinion on aside, in whole or in part, by the Judge the merits of the application. If the ap- Advocate General on the ground of plicant is no longer on active duty, the newly discovered evidence, fraud on the application may be submitted directly court, lack of jurisdiction over the ac- to the Judge Advocate General. cused or the offense, error prejudicial (d) Contents of applications. All appli- to the substantial rights of the ac- cations for relief shall contain: cused, or the appropriateness of the (1) Full name of the applicant; sentence. If such a case is considered (2) Social Security number and upon application of the accused, the branch of service, if any; application must be filed in the Office (3) Present grade if on active duty or of the Judge Advocate General by the retired, or ‘‘civilian’’ or ‘‘deceased’’ as accused on or before the last day of the applicable; two-year period beginning on the date (4) Address at time the application is the sentence is approved under section forwarded; 860(c) of this title (article 60(c)), unless (5) Date of trial; the accused establishes good cause for (6) Place of trial; failure to file within that time.’’ (7) Command title of the organization (b) Time Limitations. In order to be at which the court-martial was con- considered by the Judge Advocate Gen- vened (convening authority); eral, an application for relief must be (8) Command title of the officer exer- placed in military channels if the ap- cising review authority in accordance plicant is on active duty, or be depos- with 10 U.S.C. 864 over the applicant at ited in the mail if the applicant is no the time of trial, if applicable; longer on active duty, on or before the last day of the two-year period begin- (9) Type of court-martial which con- ning on the date the sentence is ap- victed the applicant, and sentence ad- proved by the convening authority. An judged; application not filed in compliance (10) General grounds for relief which with these time limits may be consid- must be one or more of the following: ered if the Judge Advocate General de- (i) Newly discovered evidence; termines, in his or her sole discretion, (ii) Fraud on the court; that ‘‘good cause’’ for failure to file (iii) Lack of jurisdiction over the ac- within the time limits has been estab- cused or the offense; lished by the applicant. (iv) Error prejudicial to the substan- (c) Submission procedures. Applica- tial rights of the accused; tions for relief may be submitted to the (v) Appropriateness of the sentence; Judge Advocate General by letter. If (11) An elaboration of the specific the accused is on active duty, the ap- prejudice resulting from any error plication shall be submitted via the ap- cited. (Legal authorities to support the plicant’s commanding officer, and the applicant’s contentions may be in- command that convened the court, and cluded, and the format used may take the command that reviewed the case the form of a legal brief if the appli- under 10 U.S.C. 864(a) or (b). If the cant so desires.);

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(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 § 719.155 Application under 10 U.S.C. (15) If the application is signed by a 874(b) for the substitution of an ad- person other than the applicant pursu- ministrative form of discharge for a ant to subsection e, an explanation of punitive discharge or dismissal. the circumstances rendering the appli- (a) Statutory provisions. 10 U.S.C. cant incapable of making application. 874(b) provides that the ‘‘Secretary The applicant’s copy of the record of concerned may, for good cause, sub- trial will not be forwarded with the ap- stitute an administrative form of dis- plication for relief, unless specifically charge for a discharge or dismissal exe- requested by the Judge Advocate Gen- cuted in accordance with the sentence eral. of a court-martial.’’ (e) Signatures on applications. Unless (b) Submission procedures. Applica- incapable of making application, the tions for relief will be submitted to the applicant shall personally sign the ap- Secretary using the following address: plication under oath before an official Secretary of the Navy (Judge Advocate authorized to administer oaths. If the General, Code 20), 200 Stovall Street, applicant is incapable of making appli- Alexandria, VA 22332–2400. Except in cation, the application may be signed unusual circumstances, applications under oath and submitted by the appli- will not normally be considered if re- cant’s spouse, next of kin, executor, ceived within five (5) years of the exe- guardian or other person with a proper cution of the punitive discharge or dis- interest in the matter. In this regard, missal, or within five (5) years of dis- one is considered incapable of making approval of a prior request under 10 application for purposes of this section U.S.C. 874(b). when unable to sign the application under oath due to physical or mental (c) Contents of the application. All ap- incapacity. plications shall contain: (1) Full name of the applicant; [50 FR 23804, June 6, 1985] (2) Social Security Number, service number (if different), and branch of §§ 719.145–719.150 [Reserved] service of the applicant; § 719.151 Furnishing of advice and (3) Present age and date of birth of counsel to accused placed in pre- the applicant; trial confinement. (4) Present residence of the applicant; The Department of the Navy Correc- (5) Date and place of the trial, and tions Manual, SECNAVINST 1640.9, re- type of court-martial which resulted in iterates the requirement of Article 10, the punitive discharge or dismissal; UCMJ, that, when a person is placed in (6) Command title of the convening pretrial confinement, immediate steps authority of the court-martial which should be taken to inform the confinee resulted in the punitive discharge or of the specific wrong of which he is ac- dismissal; cused and try him or to dismiss the (7) Offense(s) of which the applicant charges and release him. The Correc- was convicted, and sentence finally ap- tions Manual requires that this infor- proved from the trial which resulted in mation normally will be provided with- the punitive discharge or dismissal; in 48 hours along with advice as to the (8) Date the punitive discharge or dis- confinee’s right to consult with lawyer missal was executed; counsel and his right to prepare for (9) Applicant’s present marital sta- trial. Lawyer counsel may be either a tus, and number and ages of depend- civilian lawyer provided by the ents, if any; confinee at his own expense or a mili- (10) Applicant’s civilian criminal tary lawyer provided by the Govern- record (arrest(s) with disposition, and

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conviction(s)), both prior and subse- tendant to the court-martial which re- quent to the court-martial which resulted in the punitive discharge or dis- sulted in the punitive discharge or dismissal, are neither relevant nor appro- missal; priate for consideration under 10 U.S.C. (11) Applicant’s entire court-martial 874(b). As used in the statute, ‘‘good record (offense(s) of which convicted cause’’ was envisioned by Congress to and finally approved sentence(s)), and encompass only Secretarial exercise of nonjudicial punishment record (includ- clemency and ultimate control of sen- ing offense(s) and punishment(s) award- tence uniformity. Accordingly, in de- ed); termining what constitutes ‘‘good (12) Any military administrative discharge proceedings (circumstances and cause’’ under 10 U.S.C. 874(b), the pri- disposition) initiated against the appli- mary Secretarial concern will be with cant; the applicant’s record in the civilian (13) Applicant’s full employment community subsequent to his or her record since the punitive discharge or punitive separation. Material sub- dismissal was executed; mitted by the 10 U.S.C. 874(b) applicant (14) The specific type and character should be consistent with the fore- of administrative discharge requested going.) pursuant to 10 U.S.C. 874(b) (a more fa- (d) Signature on application. Unless in- vorable administrative discharge than capable of making application himself that requested will not be approved); or herself, the applicant shall person- (15) At least three but not more than ally sign the application, under oath, six character affidavits, (The character before a notary or other official au- affidavits must be notarized, must indi- thorized to administer oaths. If the ap- cate the relationship of the affiant to plicant is incapable of executing the the applicant, and must include the ad- application, the application may be dress of the affiant as well as specific reasons why the affiant believes the ap- signed under oath and submitted by plicant to be of good character. The af- the applicant’s spouse, next of kin, ex- fidavits should discuss the applicant’s ecutor, guardian and other person rec- character primarily as reflected in the ognized as a personal representative by civilian community subsequent to the the law of the applicant’s domicile. punitive discharge or dismissal which One is considered incapable of exe- is the subject of the application); cuting an application for purposes of (16) Any matters, other than the this paragraph only when the applicant character affidavits, supporting the is unable to sign the application under considerations described in subpara- oath due to physical or mental inca- graph (18) below; pacity. When an application is signed (17) Any other relief sought within by a person other than the applicant, the Department of the Navy and out- the circumstances rendering the appli- side the Department of the Navy in- cant incapable of making sworn appli- cluding dates of application and final cation shall be set forth in the applica- dispositions; tion, with appropriate documentation. (18) A statement by the applicant, (e) Privacy Act Statement. Disclosure setting forth the specific consider- of personal information requested by ations which the applicant believes constitute ‘‘good cause,’’ so as to war- paragraph (c) of this section is vol- rant the substitution of an administra- untary; however, failure to accurately tive form of discharge for the punitive provide all requested information may discharge or dismissal previously exe- result in the application being denied cuted. (In this connection, 10 U.S.C. because of inadequate documentation 874(b) does not provide another regular of good cause. or extraordinary procedure for the re- [47 FR 49645, Nov. 2, 1982, as amended at 50 view of a court-martial. Questions of FR 23804, June 6, 1985] guilt or innocence, or legal issues at-

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PART 720—DELIVERY OF PER- Subpart D—Compliance With Court Orders SONNEL; SERVICE OF PROCESS by Department of the Navy Members, Employees, and Family Members Out- AND SUBPOENAS; PRODUCTION side the United States OF OFFICIAL RECORDS 720.40 Purpose. Subpart A—Delivery of Personnel 720.41 Definitions. 720.42 Policy. Sec. 720.43 Points of contact. 720.1 Delivery of persons requested by State 720.44 Responsible officials. 720.45 Procedures. authorities in criminal cases. 720.46 Overseas screening programs. 720.2 Delivery when persons are within the 720.47 Report. territorial limits of the requesting State. 720.3 Delivery when persons are beyond ter- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031 and ritorial limits of the requesting State. 5148; 32 CFR 700.206 and 700.1202. 720.4 Persons stationed outside the United States. Subpart A—Delivery of Personnel 720.5 Authority of the Judge Advocate Gen- eral and the General Counsel. SOURCE: 57 FR 5228, Feb. 13, 1992, unless 720.6 Agreement required prior to delivery otherwise noted. to State authorities. 720.7 Delivery of persons to Federal authori- § 720.1 Delivery of persons requested ties. by State authorities in criminal 720.8 Delivery of persons to foreign authori- cases. ties. Subpart A of this part deals with re- 720.9 Circumstances in which delivery is requests by State authorities for the sur- fused. render of members or civilians pursu- 720.10 Members released by civil authorities ant to arrest warrants or similar proc- on bail or on their own recognizance. 720.11 Interviewing servicemembers or civil- ess, generally in connection with a ian employees by Federal civilian inves- criminal prosecution. Responding to tigative agencies. such requests by a State for delivery of 720.12 Request for delivery of members serv- members or civilian employees in- ing sentence of court-martial. volves balancing the Federal interest 720.13 Request for delivery of members serv- in preserving sovereign immunity and ing sentence of a State court. the productivity, peace, good order, 720.14–720.19 [Reserved] and discipline of the installation against the right of the State to exer- Subpart B—Service of Process and cise its jurisdiction. Additionally, by Subpoenas Upon Personnel regulation, naval and Marine authorities are limited in the extent to which 720.20 Service of process upon personnel. they can directly assist such an act. 720.21 Members or civilian employees sub- Commands should respond to such re- poenaed as witnesses in State courts. quests as set out below, generally using 720.22 Members or civilian employees subpoenaed as witnesses in Federal courts. the minimum authority necessary to 720.23 Naval prisoners as witnesses or par- preserve the Federal interests without ties in civilian courts. unduly restricting State jurisdiction. 720.24 Interviews and depositions in connection with civil litigation in matters per- § 720.2 Delivery when persons are within the territorial limits of the taining to official duties. requesting State. 720.25 Repossession of personal property. 720.26–720.29 [Reserved] When the delivery of any member or civilian is requested by local civil au- Subpart C—Production of Official Records thorities of a State for an offense punishable under the laws of that jurisdic- 720.30 Production of official records in re- tion, and such person is located at a sponse to court order. Navy or Marine Corps installation 720.31 Production of official records in the within the requesting jurisdiction, or absence of court order. aboard a ship within the territorial wa- 720.32 Certificates of full faith and credit. ters of such jurisdiction, commanding officers are authorized to and normally

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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 civilian is located in order that deliv- (3) Executed copies of all waivers will ery may be effected. A civilian may be be mailed to the Judge Advocate Gen- directed to leave a classified area. All eral immediately after their execution. should be done with minimum inter- (4) When a member declines to waive ference to good order and discipline. extradition, the nearest Naval Legal Service Office or Marine Corps staff § 720.3 Delivery when persons are be- judge advocate shall be informed and yond territorial limits of the re- shall confer with the civil authorities questing State. as appropriate. The member concerned (a) General. When State civil authori- shall not be transferred or ordered out ties request delivery of any member of of the State in which he is then located the Navy or Marine Corps for an al- without the permission of the Sec- leged crime or offense punishable under retary of the Navy (Judge Advocate the law of the jurisdiction making the General), unless a fugitive warrant is request, and such member is not at- obtained as set forth in § 720.3(c). tached to a Navy or Marine Corps ac- (c) Fugitive warrants. (1) A fugitive tivity within the requesting State or a warrant, as used in this chapter, is a ship within the territorial waters warrant issued by a State court of thereof, the following action will be competent jurisdiction for the arrest of taken. Any officer exercising general a member. Normally, a State request- court-martial jurisdiction, or officer ing delivery of a member from another designated by him, or any commanding State will issue a fugitive warrant to officer, after consultation with a judge the State where the member is then lo- advocate of the Navy or Marine Corps, cated.

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(2) Upon issuance of a fugitive war- of the Navy or Marine Corps is desired rant by the requesting State to the for trial in a Federal district court, State in which the member is located, upon appropriate representation by the the latter State will normally request Department of Justice to the Secretary delivery of the member to local State of the Navy (Judge Advocate General), authorities. Delivery to local State au- the member will be returned to the thorities should be arranged by Navy United States at the expense of the De- or Marine Corps officers designated in partment of the Navy and held at a § 720.3(a), upon compliance with the military facility convenient to the De- provisions of § 720.6, and subject to the partment of the Navy and to the De- conditions of §§ 720.9 and 720.3(c) (3) and partment of Justice. Delivery may be (4). accomplished as set forth in § 720.7, sub- (3) Upon receipt of a request for de- ject to the exceptions in § 720.9. livery of a member under fugitive warrant to State authorities, if the mem- § 720.5 Authority of the Judge Advo- cate General and the General Coun- ber voluntarily waives extradition, the sel. provisions of § 720.3(b) apply. If the member is delivered to local authori- (a) Authority of the Judge Advocate ties but refuses to waive extradition in General. The Judge Advocate General, the courts of the State in which he is the Deputy Judge Advocate General, located. and the Assistant Judge Advocates (4) No delivery of a member by Navy General are authorized to act for the or Marine Corps officers pursuant to a Secretary of the Navy in performance fugitive warrant or waiver of extra- of functions under this chapter. dition shall be effected without com- (b) Authority of the General Counsel. pletion of the agreement required by The authority of the General Counsel § 720.6 and execution of such agreement of the Navy is prescribed by Navy Reg- either: ulation (32 CFR 700.203 (a) and (g)) and by appropriate departmental directives (i) By authorities of both the request- and instructions (e.g., SECNAVINST ing State and the State in which the 5430.25D).1 The principal areas of re- member is located, or sponsibility of the Office of the General (ii) By authorities of the State in Counsel (OGC) are commerical law, in- which the member is located if such cluding maritime contract matters; ci- authorities, on behalf of the requesting vilian employee law; real property law; State, accept the full responsibility for and Freedom of Information Act and returning the number to a command Privacy Act matters as delineated in 32 designated by the Department of the CFR part 701. The Office of the General Navy. Counsel shares responsibility with the (d) Members stationed outside the Judge Advocate General for environ- United States. When the member sought mental law cases. by State authorities is not located (c) Points of contact. Commanding of- within the United States, see § 720.4. ficers are advised to contact their local area judge advocates for assistance in § 720.4 Persons stationed outside the United States. referring matters to the appropriate office of the Judge Advocate General or (a) Persons desired by local U.S. au- General Counsel. thorities. When delivery of any member (d) Coordination with the Commandant in the Navy or Marine Corps, or any ci- of the Marine Corps. Marine Corps com- vilian employee or dependent, is demands shall inform the Commandant of sired for trial by state authorities and the Marine Corps (CMC) of all matters the individual whose presence is sought referred to the Judge Advocate General is stationed outside the United States, or the Office of General Counsel. Copies the provisions of subpart D of this part of all correspondence and documents will be followed. In all such cases, the shall also be provided to CMC. The nearest judge advocate of the Navy or Marine Corps shall be consulted before 1 Copies may be obtained if needed, from any action is taken. the Commanding Officer, Naval Publication (b) Members desired by U.S. Federal au- and Forms Center, 5801 Tabor Avenue, Phila- thorities. When delivery of any member delphia, PA 19120.

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Staff Judge Advocate to the Com- rants for the arrest of members, civil- mandant (CMC (JAR)) shall be advised ian employees, civilian contractors and of all matters referred to the Judge Ad- their employees, or dependents resid- vocate General. Counsel to the Com- ing at or located on a Department of mandant shall be advised of matters re- the Navy installation, commanding of- ferred to the Office of General Counsel. ficers are authorized to and should allow the arrest of the individual § 720.6 Agreement required prior to sought. The exceptions in § 720.9 may be delivery to State authorities. 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 designate 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, comment 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 naval or Marine Corps activity as set foreign authorities. When a request for forth in the agreement; delivery of these persons is received in (2) The member is provided cash to a country with which the United States cover incidental expenses en route has no agreement or when the com- thereto; and manding officer is in doubt, advice (3) The Department of the Navy is so should be sought from the Judge Advo- informed. cate General. Detailed information As soon as practicable, a copy of the concerning the delivery of members, ci- delivery agreement shall be forwarded vilian employees, and dependents to to the Judge Advocate General. foreign authorities when a status of (b) Delivery under Interstate Agreement forces agreement is in effect is con- on Detainers Act. Special forms are used tained in DoD Directive 5525.1 of 9 when delivering prisoners under the April 1985 and SECNAVINST 5820.4F.2 Interstate Agreement on Detainers Act. The Act is infrequently used and § 720.9 Circumstances in which delivery is refused. most requests are pursuant to Article 14, UCMJ. See § 720.12 for a detailed dis- (a) Disciplinary proceedings pending. cussion of the Detainers Act. When disciplinary proceedings involving military offenses are pending, com- § 720.7 Delivery of persons to Federal manding officers should obtain legal authorities. guidance from a judge advocate of the (a) Authority to deliver. When Federal Navy or Marine Corps prior to delivery law enforcement authorities display proper credentials and Federal war- 2 See footnote 1 of § 720.5(b).

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of members to Federal or State au- § 720.11 Interviewing servicemembers thorities. or civilian employees by Federal ci- (b) When delivery may be refused. De- vilian investigative agencies. livery may be refused only in the fol- Requests by the Federal Bureau of lowing limited circumstances: Investigation, Naval Investigative (1) Where the accused has been re- Service Command, or other Federal ci- tained for prosecution; or vilian investigative agencies to inter- (2) When the commanding officer de- view members or civilian employees of termines that extraordinary cir- the Department of the Navy suspected cumstances exist which indicate that or accused of crimes should be promptly honored. Any refusal of such a redelivery should be refused. quest shall be immediately reported to (c) Delivery under Detainers Act. When the Judge Advocate General, or the Of- the accused is undergoing sentence of a fice of General Counsel, as appropriate, court-martial, see § 720.12. by telephone, or by message if tele- (d) Reports required. When delivery phone is impractical. When the em- will be refused, the commanding officer ployee in question is a member of an shall report the circumstances to the exclusive bargaining unit, a staff judge Judge Advocate General by telephone, advocate or General Counsel attorney or by message if telephone is imprac- will be consulted to determine whether tical. The initial report shall be con- the employee has a right to have a bar- firmed by letter setting forth a full gaining unit representative present statement of the facts. A copy of the during the interview. report shall be forwarded to the re- § 720.12 Request for delivery of mem- gional coordinator. bers serving sentence of court-martial. § 720.10 Members released by civil authorities on bail or on their own re- (a) General. Article 14, UCMJ (10 cognizance. U.S.C. 814), provides authority to honor 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 authorities 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 State authorities and returns to his agency holding the prisoner. The De- ship or station on bail, or on his own partment of the Navy, as an agency of recognizance, the commanding officer, the Federal Government, shall comply upon verification of the attesting facts, with the Act. The Act is designed to date of trial, and approximate length of avoid speedy-trial issues and to aid in time that should be covered by the ab- rehabilitation efforts by securing a sence, shall grant liberty or leave to greater degree of certainty about a permit appearance for trial, unless this prisoner’s future. The Act provides a way for a prisoner to be tried on would have a serious negative impact charges pending before State courts, ei- on the command. In the event that lib- ther at the request of the State where erty or leave is not granted, a judge ad- the charges are pending or the pris- vocate of the Navy or Marine Corps oner’s request. When refusal of delivery should immediately be requested to act under Article 14, UCMJ, is intended, as liaison with the court. Nothing in comply with § 720.9(d). this section is to be construed as per- (b) Interstate Agreement on Detainers mitting the member arrested and re- Act. Upon request under the Act by ei- leased to avoid the obligations of bond ther State authorities or the prisoner, or recognizance by reason of the mem- the cognizant Navy or Marine Corps ber’s being in the military service. staff judge advocate, as appropriate,

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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 tial sentence. request delivery of prisoners in military 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- (a) General. Ordinarily, members gardless of whether an appeal is in serving protracted sentences resulting process), delivery is mandatory unless from a State criminal conviction will the request is disapproved by the Di- be processed for administrative dis- rector of the Bureau of Prisons, Wash- charge by reason of misconduct. It ington, DC, 20537 as the designee of the may, however, be in the best interest of Attorney General for this purpose. 28 the Naval Service to retain a member CFR 0.96(n). There has been no further charged with a serious offense, subject delegation to military authority. The to military jurisdiction, to try the prisoner should be informed that he member by court-martial. The Navy may request the Director of the Bureau may obtain temporary custody of in- of Prisons, Washington, DC 20537, with- carcerated members for prosecution in 30 days after such request is re- with a request to the State under the ceived, to deny the request. Upon the Interstate Agreement on Detainers expiration of such 30-day period or Act. 18 U.S.C. app. 9. The Department upon the Director of the Bureau of of the Navy may use the Act in the Prisons’ denial of the prisoner’s re- same manner in which State authori- quest, whichever occurs first, the pris- ties may request members purusant to oner shall be delivered to the request- § 720.12. ing authority. (b) Interstate Agreement on Detainers (2) Prisoner request. The obligation to Act. Military authorities may use the grant temporary custody under the Act Act to obtain temporary custody of a also applies to prisoners’ requests to be member incarcerated in a State insti- delivered to State authority. Section 2, tution, pursuant to conviction by a Article III(c) of the Act requires the State court, to resolve criminal custodial official to inform the pris- charges against the member before a oner of the existence of any detainer court-martial. and of the prisoner’s right to request (1) Detainer. If a command requests disposition. The prisoner’s request is temporary custody under the Act, the directed to the custodial official who commanding officer of the cognizant must forward it to the appropriate naval legal service office or the Marine prosecuting official and court, with a Corps staff judge advocate, shall file a certificate of prisoner status as pro- detainer with the warden, commis- vided by Article III of the Act. sioner of corrections, or other State of- (c) Article 14, UCMJ. When a request ficial having custody of the member. for custody does not invoke the Inter- The detainer shall identify the member state Agreement on Detainers Act, de- with particularity, enumerate the mili- livery of custody shall be governed by tary charges pending, and request the Article 14, UCMJ, and §§ 720.2 through command be notified in advance of any 720.9. The request shall be honored un- intention to release the member from less, in the exercise of discretion, there confinement. is an overriding reason for retaining (2) Request for delivery. As soon as the accused in military custody, e.g., practical after filing the detainer, the additional courts-martial are to be commanding officer of the cognizant

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naval legal service office or the Marine §§ 720.14–720.19 [Reserved] Corps staff judge advocate, shall prepare a written request for temporary Subpart B—Service of Process and custody of the member addressed to Subpoenas Upon Personnel the State official charged with administration of the State penal system. The request shall designate the per- SOURCE: 57 FR 5232, Feb. 13, 1992, unless otherwise noted. son(s) to whom the member is to be delivered and shall be transmitted via the § 720.20 Service of process upon per- military judge to whom the member’s sonnel. case has been assigned. If the request is (a) General. Commanding officers properly prepared, the military judge afloat and ashore may permit service shall approve, record, and transmit the of process of Federal or State courts request to the addressee official. The upon members, civilian employees, de- Act provides the State with a 30-day pendents, or contractors residing at or period after receipt of the request be- located on a naval installation, if lo- fore the request is to be honored. With- cated within their commands. Service in that period of time, the governor of will not be made within the command the State may disapprove the request, without the commanding officer’s con- either unilaterally or upon the pris- sent. The intent of this provision is to oner’s request. If the governor dis- protect against interference with mis- approves the request, the command sion accomplishment and to preserve should coordinate any further action good order and discipline, while not un- with the Judge Advocate General. necessarily impeding the court’s work. (3) Responsibilities. The cognizant Where practical, the commanding offi- command shall ensure that the respon- cer shall require that the process be sibilities of a receiving jurisdiction, de- served in his presence, or in the pres- lineated in section 2, Article IV of the ence of a designated officer. In all Act, are discharged. In particular, the cases, individuals will be advised to Act requires that the receiving juris- seek legal counsel, either from a legal diction: assistance attorney or from personal (i) Commence the prisoner’s trial counsel for service in personal matters, within 120 days of the prisoner’s ar- and from Government counsel for serv- rival, unless the court, for good cause ice in official matters. The com- shown during an Article 39(a), UCMJ, manding officer is not required to act session, grants a continuance nec- as a process server. The action required essary or reasonable to promote the depends in part on the status of the in- ends of justice; dividual requested and which State issued the process. (ii) Hold the prisoner in a suitable (1) In-State process. When a process jail or other facility regularly used for server from a State or Federal court persons awaiting prosecution, except from the jurisdiction where the naval for periods during which the prisoner station is located requests permission attends court or travels to or from any to serve process aboard an installation, place at which his presence may be re- the command ordinarily should not quired; prevent service of process so long as de- (iii) Return the prisoner to the send- livery is made in accordance with rea- ing jurisdiction at the earliest prac- sonable command regulations and is tical time, but not before the charges consistent with good order and dis- that underlie the request have been re- cipline. Withholding service may be solved (prematurely returning the pris- justified only in the rare case when the oner will result in dismissal of the individual sought is located in an area charges); and under exclusive Federal jurisdiction (iv) Pay all costs of transporting, not subject to any reservation by the caring for, keeping, and returning the State of the right to serve process. prisoner to the sending jurisdiction, Questions on the extent of jurisdiction unless the command and the State should be referred to the staff judge ad- agree on some other allocation of the vocate, command counsel, or local costs or responsibilities. naval legal service office. If service is

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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 advised that he may accept service, but Counsel (Litigation), as appropriate, also may refuse. In the event that the and shall be endorsed by the com- person named refuses service, the proc- manding officer, who shall provide all ess server should be so notified. If serv- necessary data relating to the ques- ice of process is attempted from out-of- tions of whether the person was acting State by mail and refused, the refusal within the course of official duty or should be noted and the documents re- scope of employment at the time of the turned to the sender. Questions should incident out of which the suit arose. be referred to the staff judge advocate, (3) If the service of process involves a command counsel, or the local naval potential claim against the Govern- legal service office. ment, see 32 CFR 750.12(a), 750.12(b), (b) Service of process arising from offi- and 750.24. The right to remove to Fed- cial duties. (1) Whenever a member or eral Court under 28 U.S.C. 1442 and civilian employee of the Department of 1442a must be considered where the the Navy is served with process be- outcome of the State court action may cause of his official position, the Judge influence a claim or potential claim Advocate General or the Associate against the United States. Questions General Counsel (Litigation), as appro- should be directed to the Judge Advo- priate, shall be notified by telephone, cate General or the Associate General or by message if telephone is imprac- Counsel (Litigation). tical. Notification shall be confirmed (c) Service of process of foreign courts. by a letter report by the nearest appro- (1) Usually, the amenability of mem- priate command. The letter report bers, civilian employees, and their de- shall include the detailed facts which pendents stationed in a foreign coun- give rise to the action. try, to the service of process from (2) Any member or civilian employee courts of the host country will have served with Federal or State court civil been settled by an agreement between

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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 performed in the course of official du- or the Associate General Counsel (Liti- ties. The Judge Advocate General or gation), as appropriate, of all requests the Associate General Counsel (Litiga- for service of process from a foreign tion), as appropriate, will arrange court and the details thereof. through the Department of Justice for (d) Leave or liberty to be granted per- defense of the suit against the United sons served with process. When members States or an official acting within the or civilian employees are either served scope of official duties, or make other with process, or voluntarily accept arrangements, and will issue instruc- service of process, in cases where the tions. United States is not a party to the liti- (2) Usually, the persons described in gation, the commanding officer nor- § 720.20(c)(1) are not required to accept mally will grant leave or liberty to the service of process outside the geo- person served to permit compliance graphic limits of the jurisdiction of the with the process, unless to do so would court from which the process issued. In have an adverse impact on naval oper- such cases, acceptance of the service is ations. When a member or civilian em- not compulsory, but service may be ployee is a witness for a nongovern- voluntarily accepted in accordance mental party because of performance with § 720.20(b). In exceptional cases of official duties, the commanding offi- when the United States has agreed that cer may issue the person concerned service of process will be accepted by permissive orders authorizing attend- such persons when located outside the ance at the trail at no expense to the geographic limits of the jurisdiction of Government. The provisions of 32 CFR the court from which the process part 725 must also be considered in issued, the provisions of the agreement such cases. Members or civilian em- and of § 720.20(a) will govern. ployees may accept allowances and (3) Under the laws of some countries mileage tendered; however, any fees (such as Sweden), service of process is tendered for testimony must be paid to effected by the document, in original the Department of the Navy unless the or certified copy, being handed to the member or employee is on authorized person for whom the service is in- leave while attending the judicial pro- tended. Service is considered to have ceeding. When it would be in the best

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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 (e) Report where service not allowed. which the activities of the Department Where service of process is not per- of the Navy are not involved, the De- mitted, or where the member or civil- partment of the Navy will be reim- ian employee is not given leave, lib- bursed in accordance with the proce- erty, or orders to attend a judicial pro- dures outlined in the Navy Comptroller ceeding, a report of such refusal and Manual, section 046268. the reasons therefor shall be made by (b) Witnesses on behalf of nongovern- telephone, or message if telephone is mental parties—(1) Criminal actions. impractical, to the Judge Advocate When members or civilian employees General or the Associate General Coun- are served with a subpoena to appear as sel (Litigation), as appropriate. a witness for a defendant in a criminal action and the fees and mileage re- § 720.21 Members or civilian employees subpoenaed as witnesses in quired by rule 17(d) of the Federal State courts. Rules of Criminal Procedure are tendered, the commanding officer may Where members or civilian employees are subpoenaed to appear as wit- issue the person subpoenaed permissive nesses in State courts, and are served orders authorizing attendance at the as described in §§ 720.20, 720.20(d) ap- trial at no expense to the Government, plies. If these persons are requested to unless the person’s absence would have appear as witnesses in State courts an adverse impact on naval operations. when the interests of the Federal Gov- In such a case, a full report of the cir- ernment are involved (e.g., Medical cumstances will be made to the Judge Care Recovery Act cases), follow the Advocate General or, in the case of ci- procedures described in § 720.22. If State vilian employees, to the Associate Gen- authorities are attempting to obtain eral Counsel (Litigation). In those the presence of a member or a civilian cases where fees and mileage are not employee as a witness in a civil or tendered as required by rule 17(d) of the criminal case, and such person is un- Federal Rules of Criminal Procedure, available because of an overseas as- but the person subpoenaed still desires signment, the command should imme- to attend, the commanding officer also diately contact the Judge Advocate may issue permissive orders at no cost General, or the Associate General to the Government. Such persons, how- Counsel (Litigation), as appropriate. ever, should be advised that an agree- § 720.22 Members or civilian employment as to reimbursement for any ex- ees subpoenaed as witnesses in Fed- penses incident to travel, lodging, and eral courts. subsistence should be effected with the (a) Witnesses on behalf of Federal Gov- party desiring their attendance and ernment. When members or civilian em- that no reimnbursement should be ex- ployees of the Department of the Navy pected from the Government. are required to appear as witnesses in a (2) Civil actions. When members or ci- Federal Court to testify on behalf of vilian employees are served with a sub- the Federal Government in cases in- poena to appear as a witness on the be- volving Department of the Navy activi- half of a nongovernmental party in a ties, the Chief of Naval Personnel or civil action brought in a Federal court, the provisions of § 720.20 apply. 3 See footnote 1 of § 720.5(b).

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§ 720.23 Naval prisoners as witnesses mation obtained in the course of their or parties in civilian courts. official duties, including expert testi- (a) Criminal actions. When Federal or mony related thereto, shall be proc- State authorities desire the attendance essed in accordance with 32 CFR part of a naval prisoner as a witness in a 725. criminal case, they should submit a § 720.25 Repossession of personal written request for such person’s at- property. tendance to the Judge Advocate Gen- eral. The civilian authority should in- Repossession of personal property, lo- clude the following averments in its re- cated on a Navy or Marine Corps in- quest: stallation, belonging to a member or to (1) That the evidence to be derived any dependent residing at or located on from the prisoner’s testimony is un- a Department of the Navy installation, available from any other source: may be permitted in the discretion of (2) That the civilian authority will the commanding officer of the installa- provide adequate security arrange- tion where the property is located, sub- ments for the prisoner and assume reject to the following. The documents sponsibility for the prisoner while he is purporting to authorize repossession in its custody; and and the procedures for repossessing the (3) that the civilian authority will as- property must comply with State law. sume all costs of transporting the pris- Prior to permitting physical reposses- oner from the brig, of maintaining that sion of any property, the commanding prisoner while in civilian custody, and officer shall cause an informal inquiry of returning the prisoner to the brig into the circumstances and then deter- from which he was removed. mine whether to allow the reposses- The civilian authority should also in- sion. If repossession is to be allowed, clude in its request an estimate of the the person whose property is to be re- length of time the prisoner’s services possessed should be asked if he wishes will be required, and should specify the to relinquish the property voluntarily. mode of transport by which it intends Repossession must be carried out in a to return the prisoner. Upon receipt of manner prescribed by the commanding such a request, authority by the Judge officer. In the case of property owned Advocate General will be given, in a by civilian employees of the Depart- proper case, for the production of the ment of the Navy or civilian contrac- requested naval prisoner in court with- tors or their employees or dependents, out resort to a writ of habeas corpus ad the commanding officer should direct testificandum (a writ which requires that the disputed property be removed the production of a prisoner to testify from the installation until the com- before a court of competent jurisdic- manding officer is satisfied that the tion). dispute is resolved. (b) Civil actions. The Department of §§ 720.26–720.29 [Reserved] the Navy will not authorize the attendance of a naval prisoner in a Federal or State court, either as a party or as a Subpart C—Production of Official witness, in private litigation pending Records before such a court. The deposition of a naval prisoner may be taken in such a § 720.30 Production of official records in response to court order. case, subject to reasonable conditions or limitations imposed by the com- (a) General. Where unclassified naval mand concerned. records are desired by or on behalf of litigants, the parties will be informed § 720.24 Interviews and depositions in that the records desired, or certified connection with civil litigation in copies thereof, may be obtained by for- matters pertaining to official du- warding to the Secretary of the Navy, ties. Navy Department, Washington, DC, or Requests to interview, depose, or call other custodian of the records, a court as witnesses, current or former mem- order calling for the particular records bers or civilian employees of the De- desired or copies thereof. Compliance partment of the Navy, regarding infor- with such court order will be effected

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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 consent to the production or if the proof dependents) of persons in the naval duction is otherwise authorized under service is authorized upon receipt of a the Privacy Act and the Secretary of court order, without procuring specific the Navy Instruction 5211.5 series. authority from the Secretary of the Whenever compliance with a court Navy. When the request for production order for production of Department of involves material related to claims in the Navy records is deemed inappro- favor of the Government, notification priate for any reason, such as when should be made to the affirmative they contain privileged or classified in- claims office at the naval legal service formation, the records and subpoena office having territorial responsibility may be forwarded to the Secretary of in the area. Where travel is involved, it the Navy (Judge Advocate General) for must be without expense to the Gov- appropriate action, and the parties to ernment. the suit so notified. Any release of (d) Medical and other records of civilian classified information for civil court employees. Production of medical cer- proceedings (whether civil or criminal tificates or other medical reports con- in nature) must also be coordinated cerning civilian employees is con- within the office of the Chief of Naval trolled by the provisions of Executive

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Order 10561, 19 FR 5963, as implemented minded that the authority to release by Federal Personnel Manual, chapter records does not necessarily include de- 294, and chapter 339.1–4 (reprinted in nial authority. MANMED article 23–255(6)). Records of (1) JAG Manual Investigations (includ- civilian employees other than medical ing enclosures). Any request for release records may be produced upon receipt outside the Department of the Navy of a court order without procuring spe- shall be forwarded to the Assistant cific authority from the Secretary of Judge Advocate General (Military Law) the Navy, provided there is not infor determination, except that Privacy volved any classified or For-Official- Act requests for release shall be for- Use-Only information, such as loyalty or security records. Records relating to warded to the Assistant Judge Advo- compensation benefits administered by cate General (Civil Law) for determina- the Bureau of Employees’ Compensa- tion. tion may not be disclosed except upon (2) Court-martial records and Articles 69 the written approval of that Bureau (20 and 73 petitions. These are matters of CFR 1.21). In case of doubt, the matter public record and may be released by should be handled in accordance with any local holder. Court-martial records the provisions of subsection a above. should be released only following prop- Where information is furnished here- er authentication. under in response to a court order, it is (3) Article 138 Complaints of Wrongs. advisable that certified copies rather Forward as in paragraph (b)(1) of this than originals be furnished and that, section. where original records are to be pro- (c) Affirmative claims files. Affirmative duced, the assistance of the U.S. Attor- claims files (including Medical Care ney or U.S. Marshal be requested so Recovery Act files), except to the ex- that custody of the records may be tent that such files contain copies of maintained. reports of investigations prepared [38 FR 6021, Mar. 6, 1973, as amended at 48 FR under the Manual of the Judge Advo- 4466, Feb. 1, 1983] cate General, or classified or privileged information, may be released by local § 720.31 Production of official records holders to insurance companies to sup- in the absence of court order. port claims; to civilian attorneys rep- (a) General. Release of official records resenting the injured party’s and the outside the Department of the Navy in Government’s interests; and to other the absence of a court order is gov- components of the Department of De- erned by the Privacy Act (5 U.S.C. 552a) fense, without the prior approval of the and the Freedom of Information Act (5 Judge Advocate General, provided that U.S.C. 552). The following sources per- the amount of the claim is within the tain: SECNAVINST 5211.5 series (Pri- monetary settlement authority of the vacy) and SECNAVINST 5720.42 series releaser. When the request for produc- (Freedom of Information). tion involves material related to (b) Release of JAG Manual Investiga- claims in favor of the Government, no- tions, Court-Martial Records, Articles 69 tification should be made to the af- and 73 Petitions, and Article 138 Com- plaints of Wrongs. Except as provided in firmative claims office at the naval this section, only the Assistant Judge legal service office having territorial Advocates General (Civil Law) and responsibility for the area. (Military Law) shall make determina- (d) Accounting for disclosures of records tions concerning the release of the from systems of records. When records lo- records covered herein if less than a re- cated in a ‘‘system of records’’ are release of the complete requested record leased, the official responsible for re- will result. In all other instances the leasing the records shall consult Deputy Assistant Judge Advocates SECNAVINST 5211.5 series regarding General, who have cognizance of the the requirement that accountings of record(s) in issue, may release such the disclosures be maintained. Appen- records. Local record holders are re- dix A–3–a of the Manual of the Judge

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Advocate General is recommended for Department of the Navy member or this purpose. employee assigned to duty outside the United States. (1 CFR 18.14, and part 21, subpart B) Felony. A criminal offense that is [45 FR 8599, Feb. 8, 1980, as amended at 48 FR punishable by incarceration for more 4466, Feb. 1, 1983] than one year, regardless of the sentence that is imposed for commission § 720.32 Certificates of full faith and of that offense. credit. Member. An individual on active duty The Judge Advocate General, the in the Navy, Naval Reserve, Marine Deputy Judge Advocate General, or Corps, or Marine Corps Reserve. any Assistant Judge Advocate General Request for return. Any request or is authorized to execute certificates of order received from a court, or from full faith and credit certifying the sig- federal, state or local authorities con- natures and authority of officers of the cerning a court order, for the return to Department of the Navy. the United States of members, employees, or family members, for any reason [38 FR 6021, Mar. 6, 1973] listed in § 720.42. Respondent. A member, employee, or Subpart D—Compliance With 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 designated in this instruction to act on a AUTHORITY: DoD Directive 5525.9, 54 FR 296, request to return, or take other action 32 CFR part 146. 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 § 720.41 Definitions. mission requirements (including oper- Court. Any judicial body in the ational readiness), the provisions of ap- United States with jurisdiction to im- plicable international agreements, and pose criminal sanctions on a Depart- ongoing Department of Defense (DoD) ment of the Navy member, employee, investigations and courts-martial. or family member. (b) Every reasonable effort will be Employee. A civilian employed by the made to resolve the matter without the Department of the Navy or a compo- respondent returning to the United nent service, including an individual States, or other action being taken paid from non-appropriated funds, who against the respondent under this in- is a citizen or national of the United struction. States. (c) Requests to return members for Family member. A spouse, natural or felonies or for contempt involving un- adopted child, or other lawful depend- lawful or contemptuous removal of a ent of a Department of the Navy em- child from the jurisdiction of a court or ployee or member accompanying the the custody of a parent or other person

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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 (3) Director, Office of Civilian Per- (TAD) basis unless there are compel- sonnel Management (Code OOL), 800 N. ling reasons the return should be a per- Quincy Street, Arlington, VA 22203–1998 manent change of duty station (PCS). (For civilian personnel, including non- (f) The involuntary return of employ- appropriated fund employees and their ees or family members in response to a family members). request for return is not authorized. 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 § 720.44 Responsible officials. from the jurisdiction of the court or 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 temptuous removal of a child from the level for decisions to deny the request jurisdiction of the court or the custody for return. of a parent or other person awarded (b) The Commandant of the Marine custody by a court order will normally Corps (CMC) for requests involving Ma- have their command sponsorship re- rine Corps members and their family moved. Failure to comply with other members who are not employees. The court orders may also result in re- CMC may delegate this authority with- moval of command sponsorship, de- in his headquarters, not below the 0–6 pending on the circumstances of the in- level for routine matters and no lower dividual case. that the general officer level for deci- (g) To facilitate prompt resolution of sions to deny the request for return. requests for return of members, mini- (c) The local commanding officer or mize the burden on operating units, officer in charge for requests involving and to provide consistency during ini- employees and their family members tial implementation of this new pro- who are not active duty military mem- gram, a limited number of responsible bers.

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(d) The Assistant Secretary of the the responsible official, unless a delay Navy (Manpower and Reserve Affairs) is authorized by the ASN(M&RA). (ASN(M&RA)) for requests not covered (e) When a delay to complete the ac- by §§ 720.44 (a) through (c). tion is warranted, the ASN(M&RA) will grant a 45 day delay, and provide a § 720.45 Procedures. copy of that approval to the Assistant (a) If the request pertains to a felony Secretary of Defense (Force Manage- or to contempt involving the unlawful ment & Personnel (ASD(FM&P)) and or contemptuous removal of a child the General Counsel, DoD. The 45 day from the jurisdiction of a court or the period begins upon request by the re- custody of a parent or another person sponsible official of the request for re- awarded custody by court order, and turn. Conditions which, when accom- the matter cannot be resolved with the panied by full supporting justification, court without the respondent returning will warrant the granting of the 45 day to the United States: delay are: (1) For members: The responsible of- (1) Efforts are in progress to resolve ficial shall direct the commanding offi- the matter to the satisfaction of the cer or officer in charge to order the court without the respondent’s return member to return to the United States. to the United States. Failure to comply will normally be the (2) To provide sufficient time for the basis for disciplinary action against respondent to provide evidence to show the member. legal efforts to resist the request or to (2) For employees, military and civil- show legitimate cause for noncompli- ian family members: The responsible ance. official shall strongly encourage the (3) To provide commanding officers respondent to comply. Failure to comply may subject employees to adverse an opportunity to detail the specific ef- action, to include removal from the fect on command mission and oper- Federal service, and subject military ational readiness anticipated from the and civilian family members to with- loss of the member or Department of drawal of command sponsorship. the Navy employee, and to present (b) For all other requests when the facts relating to any international matter cannot be resolved with the agreement, or ongoing DoD investiga- court without returning the respondent tion or courts-martial. to the United States, the responsible (f) A commanding officer or officer in official shall take the action described charge who receives a request for the in this instruction when deemed appro- return of, or other action affecting, a priate with the facts and cir- member, family member, or employee cumstances of each particular case, fol- not of his/her command will forward lowing consultation with legal staff. the request to the appropriate com- (c) When a member’s return is incon- manding officer or officer in charge, sistent with mission requirements, the copy to the responsible official, and ad- provisions of applicable international vise both of them by message that a re- agreements, or ongoing DoD investiga- quest for return or other action has tions and courts-martial, the Depart- been forwarded to them. ment of the Navy will ask DoD to ap- (g) A commanding officer or officer prove denial of the request for the mili- in charge who receives a request for tary members’s return. To initiate this the return of, or other action affecting, action, there must be an affirmative a member, family member, or em- showing of articulable harm to the ployee of his/her command will: unit’s mission or violation of an inter- (1) Notify the respondent of the right national agreement. to provide evidence to show legal ef- (d) When a responsible official has de- forts to resist the request, or to show termined a request for return is appar- legitimate cause for noncompliance for ently based on an order issued by a inclusion in the submission to the re- court of competent jurisdiction, the responsible official. sponsible official shall complete action (2) For members and their family on the request for return within 30 days members who are not employees, for- of receipt of the request for return by ward the request immediately to the

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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 revolving 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 state and a foreign host-nation, or be- to which the family member’s sponsor tween two different foreign nations, is attached, or by which the employee the matter shall be referred to the is employed, will carry out the fol- ASN(M&RA) on the first issue and to lowing steps: the Judge Advocate General (Code 10) (i) An employee shall be strongly en- on the second and third issues. couraged to comply with the court (2) Encourage the respondent to at- order or other request for return. Fail- tempt to resolve the matter to the sat- ure to comply may be the basis for ad- isfaction of the court or other request- verse action to include removal from ing authority without return of or Federal service. Adverse action should other action affecting the member, em- only be taken after coordination with ployee, or family member. the cognizant civilian personnel office (3) When a delay to complete action and legal counsel and in compliance under this section is warranted, re- with Civilian Personnel Instruction quest the delay from ASN(M&RA) with 752. full supporting justification. (ii) If a family member of either a (4) Examine all information the re- member or an employee is the subject spondent desires to provide to show of a request for return, the family

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member shall be strongly encouraged AUTHORITY: 10 U.S.C. 1034, 1552. to comply with the court order. Failure SOURCE: 62 FR 8166, Feb. 24, 1997, unless to respond may be the basis for with- otherwise noted. drawal of command sponsorship of the family member. § 723.1 General provisions. (10) Report promptly to the This part sets up procedures for cor- ASN(M&RA) any actions taken under rection of naval and marine records by § 720.45 (a) or (b). the Secretary of the Navy acting (i) The ASN(M&RA): through the Board for Correction of (1) May grant delays of up to 45 days Naval Records (BCNR or the Board) to from the date of a request for delay in remedy error or injustice. It describes accordance with § 720.45(e). how to apply for correction of naval (2) Will report promptly all delays of and marine records and how the BCNR requests for the return of members to considers applications. It defines the the ASD(FM&P) and to the General Board’s authority to act on applica- Counsel of the Department of Defense. tions. It directs collecting and main- (3) Will request from the taining information subject to the Pri- ASD(FM&P), when warranted, excep- vacy Act of 1974 authorized by 10 U.S.C. tion to the policies and procedures of 1034 and 1552. DoD Directive 5525.9 of December 27, 1988. § 723.2 Establishment, function and ju- (4) Consolidate and forward reports of risdiction of the Board. action taken under § 720.45 (a) or (b) to (a) Establishment and composition. the ASD(FM&P) and the General Coun- Under 10 U.S.C. 1034 and 1552, the Board sel, DoD as required by DoD Directive for Correction of Naval Records is es- 5525.9 of December 27, 1988. tablished by the Secretary of the Navy. The Board consists of civilians of the § 720.46 Overseas screening programs. executive part of the Department of The Chief of Naval Operations (CNO) the Navy in such number, not less than and the CMC shall incorporate proce- three, as may be appointed by the Sec- dures requiring members and employ- retary and who shall serve at the pleas- ees to certify they have legal custody ure of the Secretary. Three members of all minor dependents accompanying present shall constitute a quorum of them outside the United States into the Board. The Secretary of the Navy service overseas screening programs. will designate one member as Chair. In the absence or incapacity of the Chair, § 720.47 Report. an Acting Chair chosen by the Execu- The report requirement in this in- tive Director shall act as Chair for all struction is exempt from reports con- purposes. trol by SECNAVINST 5214.2B. (b) Function. The Board is not an investigative body. Its function is to con- PARTS 721–722 [RESERVED] sider applications properly before it for the purpose of determining the existence of error or injustice in the naval PART 723—BOARD FOR records of current and former members CORRECTION OF NAVAL RECORDS of the Navy and Marine Corps, to make recommendations to the Secretary or Sec. to take corrective action on the Sec- 723.1 General provisions. 723.2 Establishment, function and jurisdic- retary’s behalf when authorized. tion of the Board. (c) Jurisdiction. The Board shall have 723.3 Application for correction. jurisdiction to review and determine 723.4 Appearance before the board; notice; all matters properly brought before it, counsel; witnesses; access to records. consistent with existing law. 723.5 Hearing. 723.6 Action by the Board. § 723.3 Application for correction. 723.7 Action by the Secretary. 723.8 Staff action. (a) General requirements. (1) The appli- 723.9 Reconsideration. cation for correction must be sub- 723.10 Settlement of claims. mitted on DD 149 (Application for Cor- 723.11 Miscellaneous provisions. rection of Military Record) or exact

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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 considering 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 justice to excuse the failure to file the of insufficient evidence to demonstrate application within the time prescribed. the existence of probable material (c) Acceptance of applications. An ap- error or injustice is final subject to the plication will be accepted for consider- provisions for reconsideration con- ation unless: tained in § 723.9. (1) The Board lacks jurisdiction. (3) When an original application or a (2) The Board lacks authority to request for further consideration of a grant effective relief. previously denied application is denied (3) The applicant has failed to comply without a hearing, the Board’s deter- with the filing requirements of para- mination shall be made in writing and graphs (a)(l), (a)(2), or (a)(3) of this sec- include a brief statement of the tion. grounds for denial. (4) The applicant has failed to ex- (4) The brief statement of the haust all available administrative rem- grounds for denial shall include the edies. reasons for the determination that re- (5) The applicant has failed to file an lief should not be granted, including application within 3 years after dis- the applicant’s claims of constitu- covery of the alleged error or injustice tional, statutory and/or regulatory vio- and has not provided a reason or rea- lations that were rejected, together sons why the Board should find it in with all the essential facts upon which

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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 U.S.C. 3402, or such other persons who, advised of reconsideration procedures. in the opinion of the Board, are consid- (5) The statement of the grounds for ered to be competent to present equi- denial, together with all attachments, tably and comprehensively the request shall be furnished promptly to the ap- of the applicant for correction, unless plicant and counsel, who shall also be barred by law. Representation by coun- informed that the name and final vote sel will be at no cost to the govern- of each Board member will be furnished ment. or made available upon request. Classi- (d) Witnesses. The applicant will be fied or privileged material will not be permitted to present witnesses in his/ incorporated or attached to the Board her behalf at hearings before the statement; rather, unclassified or non- Board. It will be the responsibility of privileged summaries of such material the applicant to notify his/her wit- will be so used and written expla- nesses and to arrange for their appear- nations for the substitution will be ance at the time and place set for hear- provided to the applicant and counsel. ing. Appearance of witnesses will be at no cost to the government. § 723.4 Appearance before the board; (e) Access to records. (1) It is the re- notice; counsel; witnesses; access to sponsibility of the applicant to procure records. such evidence not contained in the offi- (a) General. In each case in which the cial records of the Department of the Board determines a hearing is war- Navy as he/she desires to present in ranted, the applicant will be entitled to support of his/her case. appear before the Board either in per- (2) Classified or privileged informa- son or by counsel of his/her selection or tion may be released to applicants only in person with counsel. Additional pro- by proper authorities in accordance visions apply to cases processed under with applicable regulations. the Military Whistleblower Protection (3) Nothing in this part authorizes Act (10 U.S.C. 1034). the furnishing of copies of official (b) Notice. (1) In each case in which a records by the Board. Requests for cop- hearing is authorized, the Board’s staff ies of these records should be sub- will transmit to the applicant a writ- mitted in accordance with applicable ten notice stating the time and place of regulations governing the release of in- hearing. The notice will be mailed to formation. The BCNR can provide a re- the applicant, at least 30 days prior to questor with information regarding the date of hearing, except that an ear- procedures for requesting copies of lier date may be set where the appli- these records from the appropriate re- cant waives his/her right to such notice tention agency. in writing. (2) Upon receipt of the notice of hear- § 723.5 Hearing. ing, the applicant will notify the Board (a) Convening of board. The Board will in writing at least 15 days prior to the convene, recess and adjourn at the call date set for hearing as to whether he/ of the Chair or Acting Chair. she will be present at the hearing and (b) Conduct of hearing. (1) The hearing will indicate to the Board the name of shall be conducted by the Chair or Act- counsel, if represented by counsel, and ing Chair, and shall be subject to his/

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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 Board may consider the case in accord- blower Protection Act cases, any rec- ance with the provisions of paragraph ommendation by the Board to the Sec- (b)(2) of this section, or make such retary that disciplinary or administra- other disposition of the case as is ap- tive action be taken against any Navy propriate under the circumstances. official based on the Board’s deter- (4) All testimony before the Board mination that the official took reprisal shall be given under oath or affirma- action against the applicant will not be tion. The proceedings of the Board and made part of the Board’s record of pro- the testimony given before it will be ceedings or furnished the applicant but recorded verbatim. will be transmitted to the Secretary as (c) Continuance. The Board may con- a separate communication. tinue a hearing on its own motion. A (b) Minority report. In case of a dis- request for continuance by or in behalf agreement between members of the of the applicant may be granted by the Board a minority report will be sub- Board if a continuance appears nec- mitted, either as to the findings, con- essary to insure a full and fair hearing. clusions or recommendation, including the reasons therefor. § 723.6 Action by the Board. (c) Record of proceedings. Following a (a) Deliberations, findings, conclusions, hearing, or where the Board determines and recommendations. (1) Only members to recommend that the record be cor- of the Board and its staff shall be rected without a hearing, a record of present during the deliberations of the proceedings will be prepared. Such Board. record shall indicate whether or not a (2) Whenever, during the course of its quorum was present, and the name and review of an application, it appears to vote of each member present. The the Board’s satisfaction that the facts record shall include the application for have not been fully and fairly disclosed relief, a verbatim transcript of any tes- by the records or by the testimony and timony, affidavits, papers and docu- other evidence before it, the Board may ments considered by the Board, briefs require the applicant or military au- and written arguments, advisory opin- thorities to provide such further infor- ions, if any, minority reports, if any,

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the findings, conclusions and rec- such action along with any specific in- ommendations of the Board, where ap- structions. If the Secretary’s decision propriate, and all other papers, docu- is to deny relief, such decision shall be ments, and reports necessary to reflect in writing and, unless he or she ex- a true and complete history of the pro- pressly adopts in whole or in part the ceedings. findings, conclusions and recommenda- (d) Withdrawal. The Board may per- tions of the Board, or a minority remit an applicant to withdraw his/her port, shall include a brief statement of application without prejudice at any the grounds for denial. See § 723.3(e)(4). time before its record of proceedings is (b) Military Whistleblower Protection forwarded to the Secretary. Act. The Secretary will ensure that de- (e) Delegation of authority to correct cisions in cases involving the Military certain naval records. (1) With respect to Whistleblower Protection Act are all petitions for relief properly before issued 180 days after receipt of the case it, the Board is authorized to take final and will, unless the full relief re- corrective action on behalf of the Sec- quested is granted, inform applicants retary, unless: of their right to request review of the (i) Comments by proper naval author- decision by the Secretary of Defense. ity are inconsistent with the Board’s Applicants will also be informed: recommendation; (1) Of the name and address of the of- (ii) The Board’s recommendation is ficial to whom the request for review not unanimous; or must be submitted. (iii) It is in the category of petitions (2) That the request for review must reserved for decision by the Secretary be submitted within 90 days after re- of the Navy. ceipt of the decision by the Secretary (2) The following categories of peti- of the Navy. tions for relief are reserved for decision (3) That the request for review must by the Secretary of the Navy: be in writing and include: (i) Petitions involving records pre- (i) The applicant’s name, address and viously reviewed or acted upon by the telephone number; Secretary wherein the operative facts 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 reason 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. retary or the Executive Director, war- (4) That the request must be based on rant Secretarial review. the Board record; request for review (3) The Executive Director after en- based on factual allegations or evi- suring compliance with this section, dence not previously presented to the will announce final decisions on appli- Board will not be considered under this cations decided under this section. paragraph but may be the basis for reconsideration by the Board under § 723.7 Action by the Secretary. § 723.9. (a) General. The record of proceedings, except in cases finalized by § 723.8 Staff action. the Board under the authority dele- (a) Transmittal of final decisions grant- gated in § 723.6(e), and those denied by ing relief. (1) If the final decision of the the Board without a hearing, will be Secretary is to grant the applicant’s forwarded to the Secretary who will di- request for relief the record of pro- rect such action as he or she deter- ceedings shall be returned to the Board mines to be appropriate, which may infor disposition. The Board shall trans- clude the return of the record to the mit the finalized record of proceedings Board for further consideration. Those to proper naval authority for appro- cases returned for further consider- priate action. Similarly final decisions ation shall be accompanied by a brief of the Board granting the applicant’s statement setting out the reasons for request for relief under the authority

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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 screened by the Executive Director of proper naval authority for filing in the the Board to determine whether new applicant’s service record except where and material evidence or other matter the effect of such action would be to (including, but not limited to, any fac- nullify the relief granted. In such cases tual allegations or arguments why the no reference to the Board’s decision relief should be granted) has been sub- shall be made in the service record or mitted by the applicant. If such evi- files of the applicant and all copies of dence or other matter has been sub- the record of proceedings and any re- mitted, the request shall be forwarded lated papers shall be forwarded to the to the Board for a decision. If no such Board and retained in a file maintained evidence or other matter has been sub- for this purpose. mitted, the applicant will be informed (3) The addressees of such decisions that his/her request was not considered shall report compliance therewith to by the Board because it did not contain the Executive Director. new and material evidence or other (4) Upon receipt of the record of pro- matter. ceedings after final action by the Sec- retary, or by the Board acting under § 723.10 Settlement of claims. the authority contained in § 723.6(e), (a) Authority. (1) The Department of the Board shall communicate the deci- the Navy is authorized under 10 U.S.C. sion to the applicant. The applicant is 1552 to pay claims for amounts due to entitled, upon request, to receive a applicants as a result of corrections to copy of the Board’s findings, conclu- their naval records. sions and recommendations. (2) The Department of the Navy is (b) Transmittal of final decisions deny- not authorized to pay any claim here- ing relief. If the final decision of the tofore compensated by Congress Secretary or the Board is to deny re- through enactment of a private law, or lief, the following materials will be to pay any amount as compensation for made available to the applicant: any benefit to which the claimant (1) A statement of the findings, con- might subsequently become entitled clusions, and recommendations made under the laws and regulations admin- by the Board and the reasons therefor; istered by the Secretary of Veterans (2) Any advisory opinions considered Affairs. by the Board; (b) Application for settlement. (1) Set- (3) Any minority reports; and tlement and payment of claims shall be (4) Any material prepared by the Sec- made only upon a claim of the person retary as required in § 723.7. Moreover, whose record has been corrected or applicant shall also be informed that legal representative, heirs at law, or the name and final vote of each Board beneficiaries. Such claim for settle- member will be furnished or made ment and payment may be filed as a available upon request and that he/she separate part of the application for cor- may submit new and material evidence rection of the record. or other matter for further consider- (2) When the person whose record has ation. been corrected is deceased, and where no demand is presented by a duly ap- § 723.9 Reconsideration. pointed legal representative of the es- After final adjudication, further con- tate, payments otherwise due shall be sideration will be granted only upon made to the surviving spouse, heir or presentation by the applicant of new beneficiaries, in the order prescribed and material evidence or other matter by the law applicable to that kind of not previously considered by the payment, or if there is no such law cov- Board. New evidence is defined as evi- ering order of payment, in the order set dence not previously considered by the forth in 10 U.S.C. 2771; or as otherwise Board and not reasonably available to prescribed by the law applicable to the applicant at the time of the pre- that kind of payment.

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(3) Upon request, the applicant or ap- final determination of an application plicants shall be required to furnish by the Board or the Secretary will be requisite information to determine indexed and promptly made available their status as proper parties to the for public inspection and copying at claim for purposes of payment under the Armed Forces Discharge Review/ applicable provisions of law. Correction Boards Reading Room lo- (c) Settlement. (1) Settlement of cated on the Concourse of the Pen- claims shall be upon the basis of the tagon Building in Room 2E123, Wash- decision and recommendation of the ington, DC. Board, as approved by the Secretary or (2) All documents made available for his designee. Computation of the public inspection and copying shall be amounts due shall be made by the ap- indexed in a usable and concise form so propriate disbursing activity. In no as to enable the public to identify case will the amount found due exceed those cases similar in issue together the amount which would otherwise with the circumstances under and/or have been paid or have become due reasons for which the Board and/or Sec- under applicable laws had no error or retary have granted or denied relief. injustice occurred. Earnings received The index shall be published quarterly from civilian employment, self employ- and shall be available for public inspec- ment or any income protection plan for tion and distribution by sale at the such employment during any period for Reading Room located on the Con- which active duty pay and allowances course of the Pentagon Building in are payable will be deducted from the Room 2E123, Washington, DC. Inquiries settlement. To the extent authorized concerning the index or the Reading by law and regulation, amounts found Room may be addressed to the Chief, due may be reduced by the amount of Micromation Branch/Armed Forces any existing indebtedness to the Gov- Discharge Review/Correction Boards ernment arising from military service. Reading Room, Crystal Mall 4, 1941 Jef- (2) Prior to or at the time of pay- ferson Davis Highway, Arlington, Vir- ment, the person or persons to whom ginia 22202. payments are to be made shall be ad- (3) To the extent necessary to pre- vised by the disbursing activity of the vent a clearly unwarranted invasion of nature and amount of the various bene- personal privacy, identifying details of fits represented by the total settlement the applicant and other persons will be and shall be advised further that ac- deleted from the documents made ceptance of such settlement shall con- available for public inspection and stitute a complete release by the copying. Names, addresses, social secu- claimants involved of any claim rity numbers and military service against the United States on account numbers must be deleted. Deletions of of the correction of the record. other information which is privileged (d) Report of settlement. In every case or classified may be made only if a where payment is made, the amount of written statement of the basis for such such payment and the names of the deletion is made available for public payee or payees shall be reported to inspection. the Executive Director.

§ 723.11 Miscellaneous provisions. PART 724—NAVAL DISCHARGE REVIEW BOARD (a) Expenses. No expenses of any nature whatsoever voluntarily incurred Subpart A—Definitions by the applicant, counsel, witnesses, or by any other person in the applicant’s Sec. behalf, will be paid by the Government. 724.101 Naval Service. (b) Indexing of decisions. (1) Docu- 724.102 Naval Discharge Review Board. ments sent to each applicant and coun- 724.103 NDRB panel. sel in accordance with § 723.3(e)(5) and 724.104 NDRB Traveling Panel. 724.105 President of the NDRB. § 723.8(a)(4), together with the record of 724.106 Presiding Officer, NDRB Panel. the votes of Board members and all 724.107 Discharge. other statements of findings, conclu- 724.108 Administrative discharge. sions and recommendations made on 724.109 Types of administrative discharges.

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724.110 Reason/basis for administrative dis- 724.304 Responsibility for Department of the charge. Navy suppport of the Naval Discharge 724.111 Punitive discharge. Review Board. 724.112 Clemency discharge. 724.305 Functions of the CMC and CNO. 724.113 Application. 724.306 Functions of the Commander, Naval 724.114 Applicant. Medical Command. 724.115 Next of kin. 724.307 Functions of the Commander, Naval 724.116 Council/representative. Reserve Force. 724.117 Discharge review. 724.118 Documentary discharge review. Subpart D—Principal Elements of the Navy 724.119 Personal appearance discharge re- Department Discharge Review System view. 724.120 National Capital Region (NCR). 724.401 Applicants. 724.121 Decisional document. 724.402 Naval Discharge Review Board. 724.122 Recorder, NDRB Panel. 724.403 President, Naval Discharge Review 724.123 Complainant. Board. 724.404 Director, Naval Council of Personnel Subpart B—Authority/Policy for Boards. Departmental Discharge Review 724.405 Commandant of the Marine Corps or the Commander, Naval Military Per- 724.201 Authority. sonnel Command. 724.202 Statutory/Directive Authority. 724.406 Commander, Naval Medical Com- 724.203 Broad objectives of naval discharge mand. review. 724.407 Commander, Naval Reserve Force. 724.204 Eligibility for naval discharge re- 724.408 Secretary of the Navy. view. 724.205 Authority for review of naval dis- Subpart E—Procedural Rights of the Appli- charges; jurisdictional limitations. cant and Administrative Actions Pre- 724.206 Jurisdictional determinations. liminary to Discharge Review 724.207 Disposition of applications for discharge review. 724.501 Procedural rights of the applicant. 724.208 Implementation of NDRB decisions. 724.502 Actions to be taken by the applicant 724.209 Evidence supporting applications. preliminary to discharge review. 724.210 Review action in instances of un- 724.503 NDRB response to application for available records. discharge review. 724.211 Regularity of government affairs. 724.504 NDRB actions preliminary to dis- 724.212 Availability of records. charge review. 724.213 Attendance of witnesses. 724.214 Applicant’s expenses. Subpart F—Naval Discharge Review Board 724.215 Military representation. Mission and Functions 724.216 Failure to appear at a hearing or respond to a scheduling notice. 724.601 General. 724.217 Limitation—Reconsiderations. 724.602 Mission. 724.218 Limitation—Continuance and Post- 724.603 Functions. ponements. 724.219 Withdrawal of application. Subpart G—Organization of the Naval 724.220 Review on motion of the NDRB. Discharge Review Board 724.221 Scheduling of discharge reviews. 724.222 Personal appearance discharge hear- 724.701 Composition. ing sites. 724.702 Executive management. 724.223 NDRB support and augmentation by 724.703 Legal counsel. regular and reserve activities. 724.224 Court-martial specifications, pre- Subpart H—Procedures of the Naval sumption concerning. Discharge Review Board Subpart C—Director, Naval Council of Per- 724.801 Matters to be considered in dis- sonnel Boards and President Naval charge review. Discharge Review Board; Responsibil- 724.802 Applicant’s responsibilities. ities in Support of the Naval Discharge 724.803 The decisional document. Review Board 724.804 Decision process. 724.805 Response to items submitted as 724.301 Mission. issues by the applicant. 724.302 Functions: Director, Naval Council 724.806 Decisional issues. of Personnel Boards. 724.807 Record of NDRB proceedings. 724.303 Functions: President, Naval Dis- 724.808 Issuance of decisions following discharge Review Board. charge review.

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724.809 Final disposition of the record of § 724.104 NDRB Traveling Panel. proceedings. 724.810 Availability of Naval Discharge Re- An NDRB Panel that travels for the view Board documents for public inspec- purpose of conducting personal appear- tion and copying. ances discharge review hearings at lo- 724.811 Privacy Act information. cations outside of the National Capital 724.812 Responsibilities of the Reading Region (NCR). Room. 724.813 The recommendation of the NDRB § 724.105 President of the NDRB. president. 724.814 Secretarial Review Authority (SRA). A senior officer of the Naval Service 724.815 Complaints. designated by the Secretary of the Navy who is responsible for the direct Subpart I—Standards for Discharge Review supervision of the discharge review function within the Naval Service. (See 724.901 Objective of discharge review. subpart E). 724.902 Propriety of the discharge. 724.903 Equity of the discharge. § 724.106 Presiding Officer, NDRB APPENDIX A TO PART 724—POLICY STATEMENT Panel. BY THE SECRETARY OF DEFENSE—AD- DRESSING CERTAIN CATEGORIES OF DIS- The senior member of an NDRB CHARGES Panel shall normally be the Presiding APPENDIX B TO PART 724—OATH OR AFFIRMA- Officer. He/she shall convene, recess TION TO BE ADMINISTERED TO DISCHARGE and adjourn the NDRB Panel as appro- REVIEW BOARD MEMBERS priate. APPENDIX C TO PART 724—SAMPLES OF FOR- MATS EMPLOYED BY THE NAVAL DIS- § 724.107 Discharge. CHARGE REVIEW BOARD In the context of the review function APPENDIX D TO PART 724—VETERANS’ BENE- FITS prescribed by 10 U.S.C. 1553, a discharge or dismissal is a complete separation AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 1553. from the Naval Service, other than one SOURCE: 50 FR 10943, Mar. 19, 1985, unless pursuant to the sentence of a general otherwise noted. court-martial. By reason of usage, the EDITORIAL NOTE: Nomenclature changes to term ‘‘discharge’’ is predominantly ap- part 724 appear at 65 FR 62616, Oct. 19, 2000. plicable to the separation of enlisted personnel for any reason, and the term Subpart A—Definitions ‘‘dismissal’’ to the separation of officers 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 to the sentence of general court-mar- § 724.102 Naval Discharge Review tial. The term ‘‘discharge’’ also in- Board. cludes the type of discharge and the An administrative board, referred to reason/basis for that discharge, e.g., as the ‘‘NDRB’’ established by the Sec- Other Than Honorable/Misconduct retary of the Navy pursuant to title 10 (Civil Conviction). U.S.C., section 1553, for the review of § 724.108 Administrative discharge. discharges of former members of the Naval Service. A discharge upon expiration of enlistment or required period of service, or § 724.103 NDRB panel. prior thereto, in a manner prescribed An element of the NDRB, consisting by the Commandant of the Marine of five members, authorized to review Corps or the Commander, Naval Per- discharges. In plenary review session, sonnel Command, but specifically ex- an NDRB panel acts with the authority cluding separation by sentence of a delegated by the Secretary of the Navy general court-martial. to the Naval Discharge Review Board. [65 FR 62616, Oct. 19, 2000]

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§ 724.109 Types of administrative dis- for a member of a Reserve component charges. separated from the Delayed Entry Pro- (a) A determination reflecting a gram is under honorable conditions. member’s military behavior and per- (b) [Reserved] formance of duty during a specific pe- [50 FR 10943, Mar. 19, 1985, as amended at 51 riod of service. The three characteriza- FR 44909, Dec. 15, 1986; 65 FR 62616, Oct. 19, tions are: 2000] (1) Honorable. A separation from the naval service with honor. The issuance § 724.110 Reason/basis for administra- of an Honorable Discharge is contin- tive discharge. gent upon proper military behavior and The terms ‘‘reason for discharge’’ and performance of duty. ‘‘basis for discharge’’ have the same (2) Under Honorable Conditions (also meaning. The first is a Navy term and termed General Discharge). A separa- the second is a Marine Corps term. tion from the naval service under hon- These terms identify why an adminis- orable conditions. The issuance of a trative discharge was issued, e.g., Con- discharge under honorable conditions venience of the Government, Mis- is contingent upon military behavior conduct. Reasons/basis for discharge and performance of duty which is not are found in the Naval Military Per- sufficiently meritorious to warrant an sonnel Manual and Marine Corps Sepa- Honorable Discharge. ration and Retirement Manual as well (3) Under Other Than Honorable Condi- as predecessor publications. tions (formerly termed Undesirable Dis- charge). A separation from the naval § 724.111 Punitive discharge. service under conditions other than A discharge awarded by sentence of a honorable. It is issued to terminate the court-martial. There are two types of service of a member of the naval serv- punitive discharges: ice for one or more of the reasons/basis (a) Bad conduct. A separation from listed in the Naval Military Personnel the naval service under conditions Manual, Marine Corps Separation and other than honorable. It may be ef- Retirement Manual and their prede- fected only as a result of the approved cessor publications. sentence of a general or special court- (4) Entry Level Separation. (i) A sepa- martial. ration initiated while a member is in (b) Dishonorable. A separation from entry level status will be described as the naval service under dishonorable an Entry Level Separation except in conditions. It may be effected only as a the following circumstances: result of the approved sentence of a (a) When characterization under general court-martial. Other Than Honorable Conditions is authorized and is warranted by the cir- § 724.112 Clemency discharge. cumstances of the case; or (a) The clemency discharge was cre- (b) When characterization of service ated by the President on September 16, as Honorable is clearly warranted by 1974, in his Proclamation 4313, ‘‘An- the presence of unusual circumstances nouncing a Program for the Return of including personal conduct and per- Vietnam Era Draft Evaders and Mili- formance of naval duty and is approved tary Deserters.’’ Upon issuance to indi- on a case-by-case basis by the Sec- viduals who have an undesirable dis- retary of the Navy. This characteriza- charge or a punitive discharge, a clem- tion will be considered when the mem- ency discharge serves as a written tes- ber is separated by reason of Selected timonial to the fact that the individual Changes in Service Obligation, Conven- has satisfied the requirements of the ience of the Government, or Disability. President’s program, and has fully (ii) With respect to administrative earned his/her return to the main- matters outside the administrative stream of American society in accord- separation system that require a char- ance with that program. acterization of service as Honorable or (b) The clemency discharge is a neu- General, an Entry Level Separation tral discharge, neither honorable nor shall be treated as the required charac- less than honorable. It does not effect a terization. An Entry Level Separation change in the characterization of the

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individual’s military service as havng descending precedence by age; grand- been under other than honorable condi- father or grandmother; any other rel- tion, nor does it serves to change, seal, ative (precedence to be determined in erase or in any way modify the individ- accordance with the civil law of de- ual’s past military record. Therefore, if scent of the deceased former member’s the underlying discharge was issued as state of domicile at time of death). a result of a general court-martial, the issuance of a Clemency Discharge does § 724.116 Council/representative. not subject the underlying character- An individual or agency designated ization to review under 10 U.S.C. 1553. by the applicant who agrees to rep- Clemency discharges are issued by the resent the applicant in a case before Commander, Naval Military Personnel the NDRB. It includes, but is not lim- Command or the Commandant of the ited to: a lawyer who is a member of Marine Corps when an individual has the bar of a Federal Court or of the met the requirements of the Presi- highest court of a State; an accredited dential Proclamation. representative designated by an organi- § 724.113 Application. zation recognized by the Administrator of Veterans Affairs; a representative In the context of this Manual, a writ- from a State agency concerned with ten application to the NDRB for the re- veterans affairs; or a representative view of a discharge submitted by a from private organizations or local former member of the naval service or, Government agencies. where a former member is deceased or incompetent, by spouse, next of kin or § 724.117 Discharge review. legal representative. Department of 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). (a) Whose case is considered by the NDRB at the request of the former § 724.118 Documentary discharge review. member, of, if authorized under § 724.113, the surviving spouse, next-of- A formal session of the NDRB con- kin or legal representative, or vened for the purpose of reviewing, on (b) Whose case is considered on the the basis of documentary data, an ap- NDRB’s own motion. plicant’s discharge. The Documentary data shall include the application to- § 724.115 Next of kin. gether with all information accom- The person or persons in the highest panying that application, available category of priority as determined by service and medical records, and any the following list (categories appear in other information considered relevant descending order of priority): Sur- by the NDRB. viving legal spouse; children (whether by current or prior marriage) age 18 § 724.119 Personal appearance dis- years or older in descending precedence charge review. by age; father or mother, unless by A formal session of the NDRB con- court order custody has been vested in vened for the purpose of reviewing an another (adoptive parent takes prece- applicant’s discharge on the basis of a dence over natural parent); siblings personal appearance, as well as docu- (whole or half) age 18 years or older in mentary data. The personal appearance

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may be by the applicant or by a rep- Subpart B—Authority/Policy for resentative of the applicant, or both. Departmental Discharge Review § 724.120 National Capital Region § 724.201 Authority. (NCR). The Naval Discharge Review Board, The District of Columbia; Prince established pursuant to 10 U.S.C. 1553, Georges and Montgomery Counties in is a component of the Naval Council of Maryland; Arlington, Fairfax, Personnel Boards. By SECNAVINST Loudoun, and Prince William Counties 5730.7 series, the Assistant Secretary of in Virginia; and all cities and towns in- the Navy (Manpower and Reserve Af- cluded within the outer boundaries of fairs) is authorized and directed to act the foregoing counties. for the Secretary of the Navy within his/her assigned area of responsibility § 724.121 Decisional document. and exercises oversight over the Naval The written recordation of the appli- Council of Personnel Boards. cant’s summary of service, the issue or SECNAVINST 5420.135 series of July 15, 1983 states the organization, mission, issues presented together with any evi- duties and responsibilities of the Naval dence offered in support of the applica- Council of Personnel Boards to include tion, the NDRB’s response to the issue the Naval Discharge Review Board. The or issues, the votes of the members of Chief of Naval Operations established the panel, and any recommendations or the Office of Naval Disability Evalua- responses by the President of the tion and Navy Council of Personnel NDRB or the Secretarial Reviewing Boards on 1 October 1976 (OPNAVNOTE Authority (SRA). The decisional docu- 5450 Ser 09B26/535376 of 9 Sep 1976 (Canc ment is promulgated by the ‘‘en bloc frp: Apr 77)). The Chief of Naval Oper- letter’’. ations approved the change in name of the Office of Naval Disability Evalua- § 724.122 Recorder, NDRB Panel. tion and Navy Council of Personnel A panel member responsible for brief- Boards to Naval Council of Personnel ing an applicant’s case from the docu- Boards on 1 February 1977 mentary evidence available prior to a (OPNAVNOTE 5450 Ser 09B26/32648 of 24 discharge review, presenting the brief Jan 1977 (Canc frp: Jul 77)) with the fol- to the panel considering the applica- lowing mission statement: tion, performing other designated func- To administer and supervise assigned tions during personal appearance dis- boards and councils. charge hearings, and drafting the [50 FR 10943, Mar. 19, 1985, as amended at 65 decisional document subsequent to the FR 62616, Oct. 19, 2000] hearing. § 724.202 Statutory/Directive Author- § 724.123 Complainant. ity. A former member of the Armed The NDRB, in its conduct of dis- Forces (or the former member’s coun- charge review, shall be guided by the sel) who submits a complaint under 32 applicable statutes, regulations, and CFR Part 70 with respect to the manuals and directives of the Depart- ment of the Navy, and other written decisional document issued in the public expressions of policy by com- former member’s own case; or a former petent authority: member of the Armed Forces (or the (a) 10 U.S.C. 1553, Review of discharge former member’s counsel) who submits or dismissal: a complaint under reference (b) stating (1) ‘‘The Secretary concerned shall, that correction of the decisional docu- after consulting the Administrator of ment will assist the former member in Veterans’ Affairs, establish a board of preparing for an administrative or judi- review, consisting of five members, to cial proceeding in which the former review the discharge or dismissal member’s own discharge will be at (other than a discharge or dismissal by issue. sentence of a general court-martial) of any former member of an armed force

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under the jurisdiction of his/her depart- (a) The furtherance of good order and ment upon its own motion or upon the discipline. request of the former member or, if he/ (b) The correction of injustice or in- she is dead, his/her surviving spouse, equity in the discharge issued. next of kin, or legal representative. A (c) The correction of administrative motion or request for review must be or clerical errors. made within 15 years after the date of the discharge or dismissal.’’ § 724.204 Eligibility for naval dis- (2) A board established under this charge review. section may, subject to review by the Any former member of the Naval Secretary concerned, change a dis- Service, eligible for review under ref- charge or dismissal, or issue a new dis- erence (a) or surviving spouse, next of charge, to reflect its findings. kin or legal representative, shall upon (3) A review by the board established submission of an application be af- under this section shall be based on the forded a review of the member’s dis- records of the armed forces concerned charge from the Naval Service as pro- and such other evidence as may be pre- vided in §§ 724.205 and 724.206. Discharge sented to the board. A witness may review may also be initiated on the present evidence to the board in person motion of the NDRB (See § 724.220). 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 (a) The Board shall have no authority an organization recognized by the Ad- to: ministrator of Veterans’ Affairs under (1) Review a discharge or dismissal title 38 U.S.C. 3401 et seq.’’. resulting from a general court-martial; (b) Pub. L. 95–126. See appendix D. (2) Alter the judgment of a court- (c) 32 CFR part 70. This provides for martial, except the discharge or dis- uniform standards and procedures for missal awarded may be changed for review of discharges from the military purposes of clemency; services of the Department of Defense. (3) Revoke any discharge or dis- The provisions of 32 CFR part 70 are in- missal; corporated in this Manual. (4) Reinstate a person in the naval (d) The Secretary of Defense memo- service; randa dated August 13, 1971 and April 28, (5) Recall a former member to active 1972 (NOTAL). These directed a review duty; for recharacterization of (1) adminis- (6) Change a reenlistment code; trative discharges under other than (7) Make recommendations for reen- honorable conditions issued solely on listment to permit entry in the naval the basis of personal use of drugs or service or any other branch of the possession of drugs for the purpose of Armed Forces; such use, and (2) punitive discharges (8) Cancel or void enlistment con- and dismissals issued solely for convic- tracts; or tion of personal use of drugs and pos- (9) Change the reason for discharge session for the purpose of such use for from or to a physical disability those discharges executed as a result of (b) Review of naval discharges shall a case completed or in process on or be- not be undertaken in instances where fore July 7, 1971. (See appendix B). the elapsed time between the date of (e) 32 CFR part 41. This prescribes pol- discharge and the date of receipt of ap- icy, standards and procedures which plication for review exceeds fifteen govern the administrative separation years. of enlisted persons from the Armed Forces. § 724.206 Jurisdictional determinations. § 724.203 Broad objectives of naval dis- The determination as to whether the charge review. NDRB has jurisdiction in any case Naval discharge review shall have as shall be predicated on the policy stated its broad objectives: in § 724.205. Decisions shall be made by

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administrative action without referral Applications in which elements of rel- to the NDRB. Normally, they shall be evant information are obviously omit- made by the Executive Secretary of the ted will be returned for completion and NDRB, or they may be referred to the resubmission. President, NDRB. § 724.210 Review action in instances of § 724.207 Disposition of applications unavailable records. for discharge review. (a) In the event that Department of One of three dispositions will be the Navy personnel or health records made of an application for review of a associated with a requested review of discharge: discharge are not located at the custo- (a) The application may be rejected dial activity, the following action shall for reason of: 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 60 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 [50 FR 10943, Mar. 19, 1985, as amended at 65 Marine Corps. The Commander, Naval FR 62616, Oct. 19, 2000] Military Personnel Command, acting for the Chief of Naval Operations and § 724.211 Regularity of government af- Chief of Naval Personnel, shall be noti- fairs. fied of decisions in each discharge re- There is a presumption of regularity view case and shall implement the de- in the conduct of governmental affairs. cisions within the Navy. This presumption can be applied in any review unless there is substantial cred- § 724.209 Evidence supporting applica- ible evidence to rebut the presumption. tions. In the absence of law, evidence or § 724.212 Availability of records. policy to the contrary, naval dis- (a) Before applying for discharge re- charges shall be considered just, equi- view, potential applicants or their des- table and proper as issued. When hear- ignated representatives may obtain ings are scheduled, applicants must be copies of their military personnel prepared to present their case at the records by submitting a General Serv- scheduled time. In the absence of any ices Administration Standard Form other evidence, naval discharge review 180, ‘‘Request Pertaining to Military shall be undertaken by examination of Records,’’ to the National Personnel available service and health records of Records Center (NPRC), 9700 Page Bou- the applicant. Normally, the responsi- levard, St. Louis, MO 63132. Once the bility for presenting evidence from out- application for discharge review (DD side available service and health Form 293) is submitted, an applicant’s records shall rest with the applicant. military records are forwarded to the

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NDRB where they cannot be repro- applicant and counsel or representa- duced. Submission of a request for an tive, if any, at a reasonable time before applicant’s military records, including initiating the decision process, a notice a request under the Freedom of Infor- of the availability of all regulations mation Act (5 U.S.C. 552) or Privacy and documents to be considered in the Act (5 U.S.C. 552a) after the DD Form discharge review, except for documents 293 has been submitted, shall result in the official personnel or medical automatically in the temporary sus- records and any documents submitted pension of processing of the application by the applicant. The NDRB shall also for discharge review until the re- notify the applicant or counsel or rep- quested records are sent to an appro- resentative: (a) of the right to examine priate location for copying, are copied, such documents or to be provided with and are returned to the headquarters of copies of the documents upon request; the NDRB. Processing of the applica- (b) of the date by which such requests tion shall then be resumed at whatever must be received; and (c) of the oppor- stage of the discharge review process is tunity to respond within a reasonable practicable. Applicants are encouraged period of time to be set by the NDRB. to submit any request for their mili- (2) When necessary to acquaint the tary records before applying for dis- applicant with the substance of a clas- charge review rather than after sub- sified document, the classifying au- mitting DD Form 293 to avoid delays in thority, on the request of the NDRB, processing of applications and sched- shall prepare a summary of or an ex- uling of reviews. Applicants and their tract from the document, deleting all counsel may also examine their military personnel records at the site of references to sources of information their scheduled review before the hear- and other matters, the disclosure of ing. The NDRB shall notify applicants which, in the opinion of the classifying of the dates the records are available authority, would be detrimental to the for examination in their standard national security interests of the scheduling information. United States. Should preparation of (b) If the NDRB is not authorized to such summary be deemed impracti- provide copies of documents that are cable by the classifying authority, in- under the cognizance of another gov- formation from the classified source ernment department, office, or activ- shall not be considered by the NDRB in ity, applications for such information its review of the case. must be made by the applicant to the (e) Regulations of a military depart- cognizant authority. The NDRB shall ment may be obtained at many instal- advise the applicant of the mailing ad- lations under the jurisdiction of the dress of the government department, Military Department concerned or by office, or activity to which the request writing to the following address: DA should be submitted. Military Review Boards Agency, Atten- (c) [Reserved] tion: SFBA (Reading Room), Room (d) The NDRB may take steps to ob- 1E520, The Pentagon, Washington, DC tain additional evidence that is rel- 20310. evant to the discharge under consider- [50 FR 10943, Mar. 19, 1985, as amended at 65 ation beyond that found in the official FR 62616, Oct. 19, 2000] military records or submitted by the applicant, if a review of available evi- § 724.213 Attendance of witnesses. dence suggests that it would be incomplete without the additional informa- Arrangement for attendance of wit- tion, or when the applicant presents nesses testifying in behalf of the appli- testimony or documents that require cant at discharge review hearings is additional information to evaluate the responsibility of the applicant. The properly. Such information shall be NDRB is not authorized to subpoena or made available to the applicant, upon otherwise require their presence. request, with appropriate modifications regarding classified material. § 724.214 Applicant’s expenses. (1) In any case heard on request of an Unless otherwise specified by law or applicant, the NDRB shall provide the regulation, expenses incurred by the

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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 represented 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 notice. vious consideration of the case by the 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: (1) When the applicant has been sent (g) On the basis of presentation of a letter containing the month and loca- new, substantial, relevant evidence not tion of a proposed hearing and fails to available to the applicant at the time make a timely response; or of the original review. The decision (2) When the applicant, after being whether evidence offered by an appli- notified by letter of the time and place cant in support of a request for recon- of the hearing, fails to appear at the sideration is in fact new, substantial, appointed time, either in person or by relevant, and was not available to the representative, without having made a applicant at the time of the original prior, timely request for a continu- review will be based on a comparison of ation, postponement, or withdrawal. such evidence with the evidence con- (b) In such cases, the applicant shall sidered in the previous discharge re- be deemed to have waived the right to view. If this comparison shows that the a hearing, and the NDRB shall com- evidence submitted would have had a plete its review of the discharge. Fur- probable effect on matters concerning ther request for a hearing shall not be the propriety or equity of the dis- granted unless the applicant can dem- charge, the request for reconsideration onstrate that the failure to appear or shall be granted. respond was due to circumstances beyond the applicant’s control. § 724.218 Limitation—Continuance and Postponements. § 724.217 Limitation—Reconsider- (a) A continuance of a discharge re- ations. view hearing may be authorized by the A discharge review shall not be sub- President of the NDRB or presiding of- ject to reconsideration except: ficer of the panel concerned, provided (a) When the only previous consider- that such continuance is of reasonable ation of the case was on the motion of duration and is essential to achieving a the NDRB; full and fair hearing. When a proposal (b) When the original discharge re- for continuance is indefinite, the pend- view did not involve a personal hearing ing application shall be returned to the and a hearing is now desired, and the applicant with the option to resubmit provisions of § 724.216 do not apply; when the case is fully ready for review.

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(b) Postponements of scheduled re- travel to other selected sites within views normally shall not be permitted the contiguous 48 states for the pur- other than for demonstrated good and pose of conducting reviews. The selec- sufficient reason set forth by the appli- tion of sites and frequency of visits cant in a timely manner or for the con- shall be predicated on the number of venience of the government. requests pending within a region and the availability of resources. § 724.219 Withdrawal of application. 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 (a) When an NDRB Panel travels for for a scheduled hearing shall not be the purpose of conducting hearings, it construed or accepted as a withdrawal. shall normally select Navy or Marine Corps installations in the area visited § 724.220 Review on motion of the as review sites. NDRB. (b) The NDRB Traveling Board shall Reviews of Naval discharges may be normally consist of members from the initiated by the NDRB on its own mo- NCPB and augmentees from regular tion (10 U.S.C. 1553) which includes re- and reserve Navy and Marine Corps views requested by the Veterans Ad- sources, as required. ministration under 38 U.S.C. 101, 3103 as (c) Navy and Marine Corps activities amended by Pub. L. 95–126 of October 8, in the geographical vicinity of selected 1977 (See Pub. L. 98–209). review sites shall provide administra- § 724.221 Scheduling of discharge re- tive support and augmentation to an views. NDRB Panel during its visit where such assistance can be undertaken (a) If an applicant requests a personal without interference with mission ac- appearance discharge review, or to be complishment. The NDRB shall coordi- represented in absentia, the NDRB nate requests for augmentees and ad- shall provide a hearing in the NCR or ministrative support through Com- at another site within the forty-eight mandant of the Marine Corps or the contiguous states. Chief of Naval Reserve, as appropriate. (b) The NDRB shall subsequently notify 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 place. This notice shall normally be and shall process associated review mailed thirty to sixty days prior to the documents. date of the hearing. If the applicant elects, this time limit may be waived § 724.224 Court-martial specifications, presumption concerning. and an earlier date set. (c) When an applicant requests a doc- (a) Relevant and material facts stat- umentary review, the NDRB shall un- ed in a court-martial specification, dertake the review as soon as prac- shall be presumed by the NDRB Panel ticable. Normally, documentary re- as established facts. With respect to a views shall be conducted in the order in discharge or dismissal adjudged by a which they are received. court-martial case tried under the Uni- form Code of Military Justice, the ac- § 724.222 Personal appearance dis- tion may extend only to change in the charge hearing sites. discharge or dismissal for purposes of (a) The NDRB shall be permanently clemency. This policy only applies to located, together with its administra- cases filed with the discharge review tive staff, in the NCR. The NDRB shall board after December 6, 1983. routinely conduct personal appearance (b) Relevant and material facts stat- discharge reviews and documentary re- ed in a court-martial specification, in views at this, its permanent office. the face of which the applicant re- (b) In addition, as permitted by avail- quested a discharge for the good of the able resources, NDRB Panels shall service to avoid trial by court-martial,

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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, (b) Submit recommendations to the unless there is a substantial credible Secretary of the Navy regarding policy evidence to rebut this presumption; or and procedures for discharge review. (2) If the discharge in lieu of court- (c) Provide administrative and cler- martial only required a valid preferral, ical support for NDRB. the NDRB may presume that the signer (d) Inform the Secretary of the Navy either had personal knowledge of, or of matters of interest to him. had investigated the matters set forth, (e) Maintain a system of records, in- and that the charges were true in fact cluding as a minimum: to the best of the signer’s knowledge (1) Records specified for the NDRB as and belief.1 The weight to be given this stipulated in the procedures prescribed presumption in determining whether in subpart H of this Manual. the facts stated in the charge sheet are (2) Records required for the adminis- true is a matter to be determined by tration of military and civilian per- the NDRB. To the extent that the dis- sonnel. charge proceeding reflects an official (3) Files of correspondence received determination that the facts stated in and issued. the charge sheet are true; that the ap- (f) Establish billet/position assignment criteria for the NDRB. plicant/accused admitted the facts (g) Propose to the Secretary of the stated in the charge sheet; or that the Navy, changes to this instruction. applicant/accused admitted guilt of the (h) Issue requisite precepts and re- offense(s), then the presumption is move or add members to the NDRB strengthened. In accordance with para- from personnel detailed to serve on the graph B12f of enclosure (3) to 32 CFR Naval Council of Personnel Boards, or part 70 the presumption may be rebut- from personnel otherwise made avail- ted by ‘‘substantial credible evidence.’’ able. Subpart C—Director, Naval Coun- § 724.303 Functions: President, Naval cil of Personnel Boards and Discharge Review Board. President Naval Discharge Re- (a) Exercise primary cognizance view Board; Responsibilities in within the Department of the Navy for Support of the Naval Dis- matters relating to discharge review. (b) Supervise and direct the activi- charge Review Board ties of the NDRB. § 724.301 Mission. (c) Maintain appropriate liaison with discharge review activities in other To administer and supervise assigned services (use Army Discharge Review boards and councils within the Depart- Board as focal point for service coordi- ment of the Navy. nation). (d) Maintain coordination with the 1 Charges may be preferred by any person Commandant of the Marine Corps subject to the Uniform Code of Military Jus- (Code M) and the Commander, Naval tice. The charges must be signed and sworn Military Personnel Command in mat- to before a commissioned officer authorized ters associated with discharge review. to administer oaths, and shall state that the (e) In conformance with signer has personal knowledge of, or has in- SECNAVINST 5211.5C, protect the pri- vestigated the matters set forth therein; and that the charges are true in fact to the best vacy of individuals in connection with of the signer’s knowledge and belief. 10 discharge review. U.S.C. 830 (1976) (Art. 30 Uniform Code of (f) Assure that NDRB functions are Military Justice). administered in accordance with the

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appropriate Secretary of the Navy in- (g) Establish administrative proce- structions dealing with privacy and ac- dures to ensure that if a member is sep- cess to information. arated from the Navy or the Marine (g) Convene the NDRB as authorized Corps under other than fully honorable by the Secretary of the Navy. conditions, the member is advised of: (h) Direct the movement of the (1) The right to a review of his or her NDRB Traveling Panel(s) on the basis discharge under provisions of 10 U.S.C. of regional hearing requests. 1553, and (i) Monitor the performance of the naval discharge review system. Make (2) The procedures for applying for recommendations for changes and im- such a review. provements. Take action to avoid (h) Provide Navy and Marine Corps delays in processing of individual dis- units and activities with information charge review actions. on the mission of the Naval Discharge (j) Provide NDRB inputs for the Review Board through entries in appro- maintenance of a public reading file priate personnel administration direc- and maintain associated NDRB indexes tives. updated quarterly. § 724.306 Functions of the Commander, § 724.304 Responsibility for Depart- Naval Medical Command. ment of the Navy support of the Naval Discharge Review Board. Under the CNO the COMNAVMEDCOM shall facilitate, as The Commandant of the Marine required, access by the NDRB to health Corps; Commander, Naval Military Personnel Command; Commander, records of applicants. Naval Reserve Force; Commander, § 724.307 Functions of the Commander, Naval Medical Command; and chiefs of Naval Reserve Force. other bureaus and offices of the De- 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— (a) Upon request and within available § 724.305 Functions of the CMC and resources, provide qualified inactive CNO. duty reservists to serve as members of In the case of Navy, CNMPC, under the NDRB. the CNP, shall discharge responsibil- (b) Upon request, provide appropriate ities of the CNO. accommodations to the NDRB Trav- (a) Provide and facilitate access by eling Panels for purposes of conducting the NDRB to service/health records and reviews at Naval and Marine Corps Re- other data associated with performance of duty of applicants. serve Centers and aviation facilities. (b) Advise the NDRB of developments in personnel management which may Subpart D—Principal Elements of have a bearing on discharge review the Navy Department Dis- judgments. charge Review System (c) Implement the discharge review decisions of the NDRB and those of § 724.401 Applicants. higher authority within respective areas of cognizance. As defined in § 724.114. (d) Include the record of NDRB proceedings as a permanent part of the § 724.402 Naval Discharge Review Board. service record of the applicant in each case. As defined in § 724.102. (e) Where appropriate, recommend cases for the NDRB to review on its § 724.403 President, Naval Discharge own motion. Review Board. (f) Provide qualified personnel as Supervises the Naval Discharge Re- NDRB members, recorders and admin- view Board. (See subpart C). istrative staff.

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§ 724.404 Director, Naval Council of tive present the applicant’s case in the Personnel Boards. absence of the applicant; or to have the Exercises adminstrative control and review conducted based on records and oversight of the Naval discharge review any additional documentation sub- process. (See subpart C). mitted by the applicant or counsel/representative. § 724.405 Commandant of the Marine (d) To request copies of any docu- Corps or the Commander, Naval ments or other evidence to be consid- Military Personnel Command. ered by the NDRB in the review of the Personnel managers of the Marine applicant’s discharge or dismissal Corps and the Navy; responsible for other than the documents or evidence providing limited support to the Naval contained in the official record or sub- Discharge Review Board and for imple- mitted by the applicant prior to the mentation of departmental discharge conduct of the formal review and to be review decisions. (See subpart C). afforded an opportunity to examine such other documents or evidence or to § 724.406 Commander, Naval Medical be provided with copies of them. Command. (e) To withdrawn the request for dis- Custodian of Navy and Marine Corps charge review without prejudice at any health records. (See subpart C). time prior to the scheduled review, except that failure to appear for a sched- § 724.407 Commander, Naval Reserve uled hearing shall not be construed or Force. accepted as a withdrawal. Manages Naval Reserve resources. (f) To request a continuance of the Responsible for providing limited sup- review when the continuance is of a port to the Naval Discharge Review reasonable duration and essential to Board. (See subpart C). achieving a full and fair hearing. The request must indicate the reason why § 724.408 Secretary of the Navy. the continuance is required. The final authority within the De- (g) To request postponement of the partment of the Navy in discharge re- discharge review for good and suffi- view. cient reason set forth in a timely manner. (h) To request reconsideration of the Subpart E—Procedural Rights of discharge review under the conditions the Applicant and Administra- set forth in § 724.217. tive Actions Preliminary to Dis- (i) To have access to the information charge Review to be considered by the NDRB prior to the actual review of the applicant’s § 724.501 Procedural rights of the ap- case. plicant. (j) To have the applicant’s right to Each applicant has the following pro- privacy protected in any review con- cedural rights: ducted by the NDRB. (a) Within 15 years after the date of (k) When appearing personally before discharge, to make a written request the NDRB: for review of the applicant’s discharge (1) To introduce witnesses, docu- if the discharge was other than the re- ments, and sworn or unsworn testi- sult of a general court-martial. The re- mony. quest may include such other state- (2) To present oral or written arguments, affidavits, or documentation as ments personally or through counsel/ desired. representative. (b) To have that review conducted by (l) To submit documents, affidavits, the NDRB either in the NCR or other briefs or arguments in writing. When designated location, when a personal the counsel/representative appears in appearance discharge review is desired. person before the NDRB, arguments (c) To appear before the NDRB in per- may be presented orally. son, with or without counsel/represent- (m) To state clearly and specifically ative; with counsel/representative con- the issue or issues which the applicant currence, to have counsel/representa- desires the NDRB to answer in writing.

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These must be presented in writing on § 724.503 NDRB response to applica- DD Form 293 by the applicant or coun- tion for discharge review. sel/representative. (a) The NDRB shall acknowledge re- (n) To have the applicant’s discharge ceipt of the application. reviewed under the standards of equity (b) In the event a documentary re- and propriety outlined in subpart I. view is requested, the applicant shall (o) To be provided with a written de- normally receive no further commu- cision on the applicant’s review. nication from the NDRB until notified (p) If the case is to be forwarded for of the decision in the case. Secretarial review, to present a timely (c) In the event a personal appear- statement rebutting any findings, con- ance discharge review is requested, the clusions, or reasons of the NDRB or the applicant shall be notified of the pro- President, NDRB, which are alleged to posed time and place of this review and be erroneous on the facts, against the shall be advised of the availability of substantial weight of the evidence, or the official documents to be considered 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- § 724.502 Actions to be taken by the resentative of record, if any. 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 ized individual as discussed in § 724.113 under 38 U.S.C. 3103. These cir- of this Manual. cumstances of discharge are: (b) The application is to be accom- (1) Discharge or dismissal by reason panied by: of the sentence of a general court-mar- (1) A copy of the certificate of dis- tial. charge, if available; (2) Discharge as a conscientious ob- jector who refused to perform military (2) A copy of the Armed Forces of the duty, to wear the uniform or otherwise United States Report of Transfer or to comply with lawful orders of com- Discharge (DD–214), if available; petent military authority. (3) Certification of death, incom- (3) Discharge as a deserter. petency and evidence of relationship in (4) Discharge on the basis, or as part applicable cases (§ 724.113); of the basis, of an absence without au- (4) Other statements, affidavits, thority from active duty for a contin- depositions, documents and informa- uous period of at least 180 days, if such tion desired by the applicant to be con- discharge was under conditions other sidered by the NDRB. than honorable. Additionally, such ab- (c) Correspondence relating to review sence is computed without regard to of naval discharges should be addressed the applicant’s normal or adjusted ex- to: piration of term of service. (5) Discharge or dismissal of an offi- Naval Discharge Review Board, Suite 905— cer based on acceptance of the officer’s 801 North Randolph Street, Arlington, VA resignation for the good of the service. 22203 (6) Discharge, on his/her own applica- (d) NDRB telephone number is (202) tion, during a period of hostilities, as 696–4881. an alien.

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(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- mand. Subpart F—Naval Discharge Re- (iii) Commander, Naval Military Per- view Board Mission and Func- sonnel Command, under the Chief of tions Naval Personnel. (4) Judge Advocate General of the § 724.601 General. Navy. The NDRB is a component of the (5) Veterans’ service organizations. Naval Council of Personnel Boards and (6) Discharge review boards of the has its offices located in the NCR. The other services, using the Army Dis- NDRB conducts documentary reviews charge Review Board as the focal point and personal appearance reviews in the for service coordination. NCR and, on a traveling basis, at se- (h) Protect the privacy of individuals lected sites within the 48 contiguous whose records are reviewed. states. Regional site selection is predi- (i) Maintain for public access a read- cated on the number of pending appli- ing file and associated index of records cations accumulated from a given geo- of NDRB proceedings in all reviews un- graphical area and the resources avail- dertaken subsequent to July 1, 1975. able to support distant personal appearance reviews. The NDRB does not Subpart G—Organization of the maintain facilities other than at its Naval Discharge Review Board NCR offices. The primary sites of NCR are: Chicago, IL; Dallas, TX; and San § 724.701 Composition. Francisco, CA. The NDRB acting in plenary review session shall be composed of five mem- § 724.602 Mission. bers. Normally the members shall be To decide, in accordance with stand- career military officers, assigned to ards of naval law and discipline and the the Naval Council of Personnel Boards standards for discharge review set or otherwise made available; inactive forth in subpart I, whether a discharge duty officers of the Navy and Marine or dismissal from the naval service is Corps Reserve may serve as members proper and equitable, or whether it when designated to do so by the Presi- should be changed. dent, NDRB. (a) Presiding officers of the NDRB § 724.603 Functions. shall normally be Navy or Marine (a) Meet as frequently as necessary Corps officers in the grade of Captain/ to provide expeditious review of naval Colonel or above. discharges. (b) The remaining NDRB membership (b) Meet at locations within the 48 shall normally be not less than the contiguous states as determined appro- grade of Lieutenant Commander/Major

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with preference being given to senior (c) Testimony, if any, presented dur- grades. ing hearings; (c) At least three of the five members (d) Service and health records; of the NDRB shall belong to the service (e) A brief of pertinent facts ex- from which the applicant whose case is tracted from the service and health under review was discharged. records, prepared by the NDRB re- (d) Individual membership in the corder. NDRB may vary within the limitations of the prescribed composition. § 724.802 Applicant’s responsibilities. (e) Any member of a panel of the (a) Request for change of discharge. An NDRB other than the presiding officer applicant may request a change in the may act as recorder for cases assigned. character of or reason for discharge (or The recorder will participate as a vot- both). ing member of the panel. (1) Character of discharge. Block 7 of § 724.702 Executive management. DD Form 293 provides an applicant an opportunity to request a specific The administrative affairs of the change in character of discharge (for NDRB shall be managed by the Execu- example, General Discharge to Honor- tive Secretary. This responsibility able Discharge; Other than Honorable shall include schedules, records, cor- Discharge to General or Honorable Dis- respondence and issuance of NDRB de- charge). A person separated on or after cisions. 1 October 1982 while in an entry level status may request a change from § 724.703 Legal counsel. Other Than Honorable Discharge to Normally, the NDRB shall function Entry Level Separation. A request for without the immediate attendance of review from an applicant who does not legal counsel. In the event that a legal have an Honorable Discharge will be advisory opinion is deemed appropriate treated as a request for a change to an by the NDRB, such opinion shall be ob- Honorable Discharge unless the appli- tained routinely by reference to the cant requests a specific change to an- senior Judge Advocate assigned to the other character of discharge. Office of the Director, Naval Council of (2) Reason for discharge. Block 7 of DD Personnel Boards. In addition, the Form 293 provides an applicant an op- NDRB may request advisory opinions portunity to request a specific change from staff offices of the Department of in the reason for discharge. If an appli- the Navy, including, but not limited to cant does not request a specific change the General Counsel and the Judge Ad- in the reason for discharge, the NDRB vocate General. will presume that the request for review does not involve a request for Subpart H—Procedures of Naval change in the reason for discharge. Discharge Review Board Under its responsibility to examine the propriety and equity of an applicant’s § 724.801 Matters to be considered in discharge, the NDRB will change the discharge review. reason for discharge if such a change is In the process of its review of dis- warranted. charges, the NDRB shall examine (3) The applicant must ensure that available records and pertinent regula- issues submitted to the NDRB are con- tions of the Department of the Navy, sistent with the request for change in together with such information as may discharge set forth in block 7 of the DD be presented by the applicant and/or Form 293. If an ambiguity is created by representative, which will normally in- a difference between and applicant’s clude: issue and the request in block 7, the (a) The application for discharge re- NDRB will respond to the issue in the view; context of the action requested in (b) Statements, affidavits or docu- block 7. In the case of a personal ap- mentation, if any, accompanying the pearance hearing, the NDRB will at- application or presented during hear- tempt to resolve the ambiguity under ings; § 724.802(c).

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(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 those matters that, in the option of the to issues submitted on the new form in applicant, provide a basis for changing accordance with this instruction. the discharge; (2) Relationship of issues to character of (B) Assists the NDRB in focusing on or reason for discharge. If the applica- those matters considered to be impor- tion applies to both character of and tant by an applicant; reason for discharge, the applicant is (C) Assists the NDRB in distin- encouraged, but not required, to iden- guishing between a matter submitted tify the issue as applying to either the by an applicant in the expectation that character of or the reason for discharge it will be treated as a decisional issue, (or both). Unless the issue is directed and those matters submitted simply as at the reason for discharge expressly or background or supporting materials; by necessary implication, the NDRB (D) Provides the applicant with will presume that it applies solely to greater rights in the event that the ap- the character of discharge. plicant later submits a complaint con- (3) Relationship of issues to the stand- cerning the decisional document; ards for discharge review. The NDRB re- (E) Reduces the potential for dis- views discharges on the basis of issues agreement as to the content of an ap- of propriety and equity. The standards plicant’s issue. used by the NDRB are set forth in (iv) Incorporation by reference. If the § 724.804. The applicant is encouraged to applicant makes an additional written review those standards before submit- submission, such as a brief, in support ting any issue upon which the appli- of the application, the applicant may cant believes a change in discharge incorporate by reference specific issues should be based.

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(i) Issues concerning the equity of the ceived on or after November 27, 1982 discharge. An issue of equity is a mat- apply: ter that involves a determination (i) The issue must be set forth or ex- whether a discharge should be changed pressly incorporated in the ‘‘Appli- under the equity standards of this part. cant’s Issue’’ portion of DD Form 293. This includes any issue, submitted by (ii) If an applicant’s issue cites a the applicant in accordance with prior decision (of the NDRB, another § 724.802(b)(1), that is addressed to the Board, an agency, or a court), the ap- discretionary authority of the NDRB. plicant shall describe the specific prin- (ii) Issues concerning the propriety of a ciples and facts that are contained in discharge. An issue of propriety is a the prior decision and explain the rel- matter that involves a determination evance of cited matter to the appli- whether a discharge should be changed cant’s case. under the propriety standards of this (iii) To ensure timely consideration part. This includes an applicant’s issue, of principles cited from unpublished submitted in accordance with opinions (including decisions main- § 724.802(b)(1), in which the applicant’s tained by the Armed Forces Discharge position is that the discharge must be Review Board/Corrective Board Read- changed because of an error in the dis- ing Room), applicants must provide the charge pertaining to a regulation, stat- NDRB with copies of such decisions or ute, constitutional provision, or other of the relevant portion of the treatise, source of law (including a matter that manual or similar source in which the requires a determination whether, principles were discussed. At the appli- under the circumstances of the case, cant’s request, such materials will be action by military authorities was ar- returned. bitrary, capricious, or an abuse of dis- (iv) If the applicant fails to comply cretion). Although a numerical ref- with requirements in § 724.802(b)(4), the erence to the regulation or other decisional document shall note the de- sources of law alleged to have been vio- fect, and shall respond to the issue lated is not necessarily required, the without regard to the citation. context of the regulation or a description of the procedures alleged to have (c) Identification by the NDRB of issues been violated normally must be set submitted by an applicant. The appli- forth in order to inform the NDRB ade- cant’s issues shall be identified in ac- quately of the basis for the applicant’s cordance with this section after a re- position. view of the materials noted under § 924.803, is made. (iii) The applicant’s identification of an issue. The applicant is encouraged, but (1) Issues on DD Form 293. The NDRB not required, to specify that each issue shall consider all items submitted as pertains to the propriety or the equity issues by an applicant on DD Form 293 of the discharge. This will assist the (or incorported therein). NDRB in assessing the relationship of (2) Amendment of issues. The NDRB the issue to propriety or equity. shall not request or instruct an appli- (4) Citation of matter from decisions. cant to amend or withdraw any matter The primary function of the NDRB in- submitted by the applicant. Any volves the exercise of discretion on a amendment or withdrawal of an issue case-by-case basis. Applicants are not by an applicant shall be confirmed in required to cite prior decisions as the writing by the applicant. Nothing in basis for a change in discharge. If the this provision: applicant wishes to bring the NDRB’s (i) Limits the NDRB’s authority to attention to a prior decision as back- question an applicant as to the mean- ground or illustrative material, the ci- ing of such matter; tation should be placed in a brief or (ii) Precludes the NDRB from devel- other supporting documents. If, how- oping decisional issues based upon such ever, it is the applicant’s intention to questions; submit an issue that sets forth specific (iii) Prevents the applicant from principles and facts from a specific amending or withdrawing such matter cited decision, the following require- any time before the NDRB closes the ments with respect to applications re- review process for deliberation; or

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(iv) Prevents the NDRB from pre- tary Justice (including nature and date senting an applicant with a list of pro- (YYMMDD) of offense or punishment); posed decisional issues and written in- (xvi) Convictions by court-martial; formation concerning the right of the (xvii) Prior military service and type applicant to add to, amend, or with- of discharge received. draw the applicant’s submission. The (2) Any other matters in the appli- written information will state that the cant’s record which pertains to the dis- applicant’s decision to take such ac- charge or the issues, or provide a clear- tion (or decline to do so) will not be er picture of the overall quality of the used against the applicant in the con- applicant’s service. sideration of the case. (b) A list of the type of documents (3) Additional issues identified during a submitted by or on behalf of the appli- hearing. The following additional pro- cant (including written briefs, letters cedure shall be used during a hearing of recommendation, affidavits con- in order to promote the NDRB’s under- cerning the circumstances of the dis- standing of an applicant’s presen- charge, or other documentary evi- tation. If, before closing the case for dence), if any. deliberation, the NDRB believes that (c) A statement whether the appli- an applicant has presented an issue not cant testified, and a list of the type of listed on DD Form 293, the NDRB may witnesses, if any , who testified on be- so inform the applicant, and the appli- half of the applicant. cant may submit the issue in writing (d) A notation whether the applica- or add additional written issues at that tion pertained to the character of dis- time. This does not preclude the NDRB charge, the reason for discharge, or from developing its own decisional both. issues. (e) A list of the items submitted as issues on DD Form 293 or expressly in- § 724.803 The decisional document. corporated therein and such other A decisional document shall be pre- items submitted as issues by the appli- pared for each review. At a minimum, cant that are identified as inadvert- this document shall contain: ently omitted. If the issues are listed (a) The circumstances and character verbatim on DD Form 293, a copy of the of the applicant’s service as extracted relevant portion of the form may be at- from available service records, includ- tached. Issues that have been withing health records, and information drawn or modified with the written provided by other government authori- consent of the applicant need not be ties or the applicant, such as, but not listed. limited to: (f) The response to the items sub- (1) Information concerning the dis- mitted as issues by the applicant. charge under review, including: (g) A list of decisional issues and a (i) Date (YYMMDD) of discharge; discussion of such issues. (ii) Character of discharge; (h) NDRB’s conclusions on the following: (iii) Reason for discharge; (1) Whether the character of or rea- (iv) The specific regulatory authority son for discharge should be changed. under which the discharge was issued; (2) The specific changes to be made, (v) Date (YYMMDD) of enlistment; if any. (vi) Period of enlistment; (i) A record of the voting, including: (vii) Age at enlistment; (1) The number of votes for the (viii) Length of service; NDRB’s decision and the number of (ix) Periods of unauthorized absence; votes in the minority, if any. (x) Conduct and efficiency ratings (2) The NDRB members’ names and (numerical or narrative); votes. The copy provided to the appli- (xi) Highest rank achieved; cant may substitute a statement that (xii) Awards and decorations; the names and votes will be made (xiii) Educational level; available to the applicant at the appli- (xiv) Aptitude test scores; cant’s request. (xv) Incidents of punishment pursu- (j) Advisory opinions, including those ant to Article 15, Uniform Code of Mili- containing factual information, when

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such opinions have been relied upon for mentary evidence submitted by or on final decision or have been accepted as behalf of an applicant, presentation of a basis for rejecting any of the appli- a hearing examination, testimony by cant’s issues. Such advisory opinions or on behalf of an applicant, oral or or relevant portions that are not fully written arguments presented by or on set forth in the discussion of decisional behalf of an applicant, and any other issues or otherwise in response to relevant evidence. items submitted as issues by the appli- (e) If an applicant who has requested cant shall be incorporated by reference. a hearing does not respond to a notifi- A copy of opinions incorporated by ref- cation letter or does not appear for a erence shall be appended to the deci- scheduled hearing, the NDRB may sion and included in the record of pro- complete the review on the basis of ma- ceedings. terial previously submitted and avail- (k) The recommendation of the able service records. NDRB president when required. (f) Application of standards. (1) When (l) The addendum of the SRA when the NDRB determines that an appli- required. cant’s discharge was improper, the (m) Index entries for each decisional NDRB will determine which reason for issue under appropriate categories list- discharge should have been assigned ed in the index of decisions. based upon the facts and circumstances (n) An authentication of the docu- before the discharge authority, includ- ment by an appropriate official. ing the service regulations governing § 724.804 Decision process. reasons for discharge at the time the applicant was discharged. Unless it is (a) The NDRB or the NDRB panel, as also determined that the discharge was appropriate, shall meet in plenary ses- inequitable, the provisions as to the sion to review discharges and exercise characterization in the regulation its discretion on a case-by-case basis in under which the applicant should have applying the standard set forth in sub- been discharged will be considered in part I. determining whether further relief is (b) The presiding officer is respon- warranted. sible for the conduct of the discharge (2) When the NDRB determines that review. The presiding officer shall con- an applicant’s discharge was inequi- vene, recess, and adjourn the NDRB table, any change will be based on the panel as appropriate and shall main- evaluation of the applicant’s overall tain an atmosphere of dignity and de- record of service and relevant regula- corum at all times. tions of the service of which the appli- (c) Each NDRB member shall act cant was a member. under oath or affirmation requiring careful, objective consideration of the (g) Voting shall be conducted in application. NDRB members are re- closed session, a majority of the votes sponsible for eliciting all facts nec- of the five members constituting the essary for a full and fair review. They NDRB decision. shall consider all information pre- (h) Details of closed session delibera- sented to them by the applicant. In ad- tions of the NDRB are priviledged in- dition, they shall consider available formation and shall not be divulged. military service and health records, to- (i) There is no requirement for a gether with other records that may be statement of minority views in the in the files of the military department event of a split vote. concerned and relevant to the issues (j) The NDRB may request advisory before the NDRB, and any other evi- opinions from appropriate staff officers dence obtained in accordance with this of the naval service. These opinions are Manual. advisory in nature and are not binding (d) The NDRB shall identify and ad- on the NDRB in its decision-making dress issues after a review of the fol- process. lowing material obtained and presented (k) The preliminary determinations in accordance with this Manual and required by 38 U.S.C. 3103(e) shall be any implementing instructions of the made upon majority vote of the NDRB NDRB: available official records, docu- concerned on an expedited basis. Such

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determination shall be based upon the (Decisional Issues) unless one of the standards set forth in this Manual. following responses is applicable: (i) Duplicate issues. The NDRB may § 724.805 Response to items submitted state that there is a full response to as issues by the applicant. the issue submitted by the applicant (a) General guidance. (1) If any issue under a specified decisional issue. This submitted by an applicant contains response may be used only when one two or more clearly separate issues, issue clearly duplicates another or the the NDRB should respond to each issue issue clearly requires discussion in con- under the guidance of this paragraph as junction with another issue. if it had been set forth separately by (ii) Citations without principles and the applicant. facts. The NDRB may state that the ap- (2) If an applicant uses a ‘‘building plicant’s issue, which consists of a cita- block’’ approach (that is, setting forth tion to a decision without setting forth a series of conclusions on issues that any principles and facts from the deci- lead to a single conclusion purportedly sion that the applicant states are rel- warranting a change in the applicant’s evant to the applicant’s case, does not 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 (1) When the NDRB decides that a is considered not specific if a reason- change in discharge should be granted, able person familiar with the discharge and the NDRB bases its decision in review process after a review of the whole or in part on the applicant’s materials considered cannot determine issue; or the relationship between the appli- (2) When the NDRB does not provide cant’s submission and the particular the applicant with the full change in circumstances of the case. This re- discharge requested, and the decision is sponse may be used only if the submis- based in whole or in part on the sion is expressed in such general terms NDRB’s disagreement on the merits that no other response is applicable. with an issue submitted by the appli- For example, if the NDRB disagrees cant. with the applicant as to the relevance (c) Response to items not addressed as of matters set forth in the submission, decisional issues. (1) If the applicant re- the NDRB normally will set forth the ceives the full change in discharge re- nature of the disagreement with requested (or a more favorable change), spect to decisional issues, or it will re- that fact shall be noted and the basis ject the applicant’s position. If the ap- shall be addressed as a decisional issue. plicant’s submission is so general that No further response is required to none of those provisions is applicable, other issues submitted by the appli- then the NDRB may state that it can- cant. not respond because the item is not (2) If the applicant does not receive specific. the full change in discharge requested with respect to either the character of § 724.806 Decisional issues. or reason for discharge (or both), the (a) General. Under the guidance in NDRB shall address the items sub- this section, the decisional document mitted by the applicant under § 724.806, shall discuss the issues that provide a

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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. (b) Change of discharge: issues of pro- (1) Partial change. When the decision priety. If a change in the discharge is changes a discharge, but does not pro- warranted under the propriety stand- vide the applicant with the full change ards, the decisional document shall in discharge requested, the decisional state that conclusion and list the er- document shall address both the issues rors of expressly retroactive changes in upon which change is granted and the policy or violations of regulations that issues upon which the NDRB denies the provide a basis for the conclusion. The full change requested. decisional document shall cite the (2) Relationship of issue of character of facts in the record that demonstrate or reason for discharge. Generally, the the relevance of the error or change in decisional document should specify policy to the applicant’s case. If the whether a decisional issue applies to change in discharge does not constitute the character of or reason for discharge the full change requested by the appli- (or both), but it is not required to do cant, the reasons for not granting the so. full change shall be set forth. (3) Relationship of an issue to propriety (c) Denial of the full change requested: or equity. (i) If an applicant identifies issues of propriety. (1) If the decision re- an issue as pertaining to both projects the applicant’s position on an priety and equity, the NDRB will con- issue of propriety, of if it is otherwise sider it under both standards. decided on the basis of an issue of pro- (ii) If an applicant identifies an issue priety that the full change in discharge as pertaining to the propriety of the requested by the applicant is not war- discharge (for example, by citing a pro- ranted, the decisional document shall priety standard or otherwise claiming note that conclusion. that a change in discharge is required (2) The decisional document shall list as a matter of law), the NDRB shall reasons for its conclusion on each issue consider the issue solely as a matter of of propriety under the following guid- propriety. Except as provided in ance: § 724.806(a)(3)(d), the NDRB is not re- (i) If a reason is based in whole or in quired to consider such an issue under part upon a regulation, statute, con- the equity standards. stitutional provision, judicial deter- (iii) If the applicant’s issue contends mination, or other source of law, the that the NDRB is required as a matter NDRB shall cite the pertinent source of of law to follow a prior decision by set- law and the facts in the record that ting forth an issue of propriety from demonstrate the relevance of the the prior decision and describing its resource of law to the particular cir- lationship to the applicant’s case, the cumstances in the case. issue shall be considered under the pro- (ii) If a reason is based in whole or in priety standards and addressed under part on a determination as to the oc- § 724.806 (a) or (b). currence or nonoccurrence of an event (iv) If the applicant’s issue sets forth or circumstances, including a factor re- principles of equity contained in a quired by applicable service regula- prior NDRB decision, describes the re- tions to be considered for determina- lationship to the applicant’s case, and tion of the character of and reason for contends that the NDRB is required as the applicant’s discharge, the NDRB a matter of law to follow the prior shall make a finding of fact for each case, the decisional document shall such event or circumstance. note that the NDRB is not bound by its (A) For each such finding, the discretionary decisions in prior cases. decisional document shall list the spe- However, the principles cited by the cific source of the information relied applicant, and the description of the upon. This may include the presump- relationship of the principles to the ap- tion of regularity in appropriate cases.

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If the information is listed in the serv- (D) The NDRB may reject the appli- ice record section of the decisional doc- cant’s position on the grounds that ument, a citation is not required. other specified factors in the case pre- (B) If a finding of fact is made after clude granting relief, regardless of consideration of contradictory evi- whether the NDRB agreed with the ap- dence in the record (including informa- plicant’s position. tion cited by the applicant or other- (E) If the applicant take the position wise identified by members of the that the discharge must be changed be- NDRB), the decisional document shall cause of an alleged error in a record as- set forth the conflicting evidence and sociated with the discharge, and the explain why the information relied record has not been corrected by the upon was more persuasive than the in- organization with primary responsi- formation that was rejected. If the pre- bility for corrective action, the NDRB sumption of regularity is cited as the may respond that it will presume the basis for rejecting such information, validity of the record in the absence of the decisional document shall explain such corrective action. If the organiza- why the contradictory evidence was in- tion empowered to correct the record is sufficient to overcome the presump- within the Department of Defense, the tion. In an appropriate case, the expla- NDRB should provide the applicant nation as to why the contradictory evi- with a brief description of the proce- dence was insufficient to overcome the dures for requesting correction of the presumption of regularity may consist record. If the NDRB on its own motion of a statement that the applicant failed cites this issue as a decisional issue on to provide sufficient corroborating evi- the basis of equity, it shall address the dence, or that the NDRB did not find issue. the applicant’s testimony to be suffi- (F) When an applicant’s issue con- ciently credible to overcome the pre- tains a general allegation that a cer- sumption. tain course of action violated his or her (iii) If the NDRB disagrees with the constitutional rights, the NDRB may position of the applicant on an issue of respond in appropriate cases by noting propriety, the following guidance ap- that the action was consistent with plies in addition to the guidance in statutory or regulatory authority, and § 724.806(c)(2) (a) and (b): by citing the presumption of constitu- (A) The NDRB may reject the appli- tionality that attaches to statutes and cant’s position by explaining why it regulations. If, on the other hand, the disagrees with the principles set forth applicant makes a specific challenge to in the applicant’s issue (including prin- the constitutionality of the action by ciples derived from cases cited by the challenging the application of a stat- applicant in accordance with ute or regulation in a particular set of § 724.802(b)(4). circumstances, it is not sufficient to (B) The NDRB may reject the appli- respond solely by citing the presump- cant’s position by explaining why the tion of constitutionality of the statute principles set forth in the applicant’s or regulation when the applicant is not issue (including principles derived from challenging the constitutionality of cases cited by the applicant in accord- the statute or regulation. Instead, the ance with § 724.802(b)(4)) are not rel- response must address the specific cir- evant to the applicant’s case. cumstances of the case. (C) The NDRB may reject an appli- (d) Denial of the full change in dis- cant’s position by stating that the ap- charge requested when propriety is not at plicant’s issue of propriety is not a issue. If the applicant has not sub- matter upon which the NDRB grants a mitted an issue of propriety and the change in discharge, and by providing NDRB has not otherwise relied upon an an explanation for this position. When issue of propriety to change the dis- the applicant indicates that the issue charge, the decisional document shall is to be considered in conjunction with contain a statement to that effect. The one or more other specified issues, the NDRB is not required to provide any explanation will address all such speci- further discussion as to the propriety fied issues. of the discharge.

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(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 precision 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 demonstrate the relevance of the (B) The NDRB may reject the appli- source of law to the exercise of discre- cant’s position by explaining why the tion on the issue of equity in the appli- principles set forth in the applicant’s cant’s case. issue (including principles derived from (ii) If a reason is based in whole or in cases cited by the applicant) are not part on a determination as to the oc- relevant to the applicant’s case. currence or nonoccurrence of an event (C) The NDRB may reject an appli- or circumstance, including a factor re- cant’s position by explaining why the quired by applicable service regula- applicant’s issue is not a matter upon tions to be considered for determina- which the NDRB grants a change in tion of the character of and reason for discharge as a matter of equity. When the applicant’s discharge, the NDRB the applicant indicates that the issue shall make a finding of fact for each is to be considered in conjunction with such event or circumstance. other specified issues, the explanation (A) For each such finding, the will address all such specified issues. decisional document shall list the spe- (D) The NDRB may reject the appli- cific source of the information relied cant’s position on the grounds that upon. This may include the presump- other specified factors in the case pre- tion of regularity in appropriate cases. clude granting relief, regardless of If the information is listed in the serv- whether the NDRB agrees with the ap- ice record section of the decisional doc- plicant’s position. ument, a citation is not required. (E) If the applicant takes the posi- (B) If a finding of fact is made after tion that the discharge should be consideration of contradictory evi- changed as a matter of equity because dence in the record (including informa- of an alleged error in a record associ- tion cited by the applicant or other- ated with the discharge, and the record wise indentified by members of the has not been corrected by the organiza- NDRB), the decisional document shall tion with primary responsibility for

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corrective action, the NDRB may re- (7) Notification of the NDRB’s deci- spond that it will presume the validity sion to the cognizant custodian of the of the record in the absence of such applicant’s records, or reference to the corrective action. However, the NDRB notification document; will consider whether it should exercise (8) A copy of the decisional docu- its equitable powers to change the dis- ment. charge on the basis of the alleged error. If it declines to do so, it shall explain § 724.808 Issuance of decisions fol- why the applicant’s position did not lowing discharge review. provide a sufficient basis for the The applicant and counsel or rep- change in the discharge requested by resentative, if any, shall be provided the applicant. with a copy of the decisional document (iv) When NDRB concludes that ag- and of any further action in review. gravating factors outweigh mitigating factors, the NDRB must set forth rea- Final notification of decisions shall be sons such as the seriousness of the of- issued to the applicant with a copy to fense, specific circumstances sur- the counsel or representative, if any, rounding the offense, number of of- and to the service manager concerned. fenses, lack of mitigating cir- (a) Notification to applicants, with cumstances, or similar factors. The copies to counsel or representatives, NDRB is not required however, to ex- shall normally be made through the plain why it relied on any such factors U.S. Postal Service. Such notification unless the applicability or weight of shall consist of a notification of deci- such a factor is expressly raised as an sion, together with a copy of the issue by the applicant. decisional document. (v) If the applicant has not submitted (b) Notification to the service man- any issues and the NDRB has not oth- ager shall be for the purpose of appro- erwise relied upon an issue of equity priate action and inclusion of review for a change in discharge, the matter in personnel records. Such noti- decisional document shall contain a fication shall bear appropriate certifi- statement to that effect, and shall note cation of completeness and accuracy. that the major factors upon which the (c) Actions on review by superior au- discharge was based are set forth in the thority, when occurring, shall be pro- service record portion of the decisional vided to the applicant and counsel or document. representative in the same manner as § 724.807 Record of NDRB proceedings. to the notification of the review decision. (a) When the proceedings in any review have been concluded, a record § 724.809 Final disposition of the thereof will be prepared. Records may record of proceedings. include written records, electro- The original decisional document and magnetic records, audio and/or video- tape recordings, or a combination. all appendices thereto, shall in all cases be incorporated in the military (b) At a minimum, the record will include the following: service record of the applicant and the (1) The application for review; service record shall be returned to the custody of the appropriate record hold- (2) A record of the testimony in either verbatim, summarized, or re- ing facility. If a portion of the original corded form at the option of the NDRB; record of proceedings cannot be stored (3) Documentary evidence or copies, with the service record, the service other than the military service record record shall contain a notation as to considered by the NDRB; the place where the record is stored. (4) Briefs and arguments submitted Other copies including any electro- by or on behalf of the applicant; magnetic records, audio and/or video- (5) Advisory opinions considered by tape recordings or any combination the NDRB, if any: thereof shall be filed in the NDRB case (6) The findings, conclusions, and rea- folder and disposed of in accordance sons developed by the NDRB; with appropriate naval regulations.

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§ 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 counsel or representative and made has accepted an application, informa- available for public inspection. It is tion concerning the availability of the not intended that the statement be so index shall be provided in the NDRB’s detailed as to reveal the nature of the response to the application. withheld material. (d) NDRB documents made available § 724.811 Privacy Act information. for public inspection and copying shall Information protected under the Pri- be located in the Armed Forces Dis- vacy Act is involved in the discharge charge Review/Correction Board Read- review functions. The provisions of ing Room. The documents shall be in- SECNAVINST 5211.5C shall be observed dexed in a usable and concise form so throughout the processing of a request as to enable the public, and those who for review of discharge or dismissal. represent applicants before the NDRB, to isolate from all these decisions that § 724.812 Responsibilities of the Read- are indexed, those cases that may be ing Room. similar to an applicant’s case and that (a) Copies of decisional documents indicate the circumstances under or will be provided to individuals or orga- reasons for (or both) which the NDRB nizations outside the NCR in response or the Secretary concerned granted or to written requests for such docu- denied relief. ments. Although the Reading Room (1) The reading file index shall in- shall try to make timely responses to clude, in addition to any other item de- such requests, certain factors such as termined by the NDRB, the case num- the length of a request, the volume of

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other pending requests, and the impact adopts the views of the majority only of other responsibilities of the staff as- in part, the recommendation shall cite signed to such duties may cause some the specific matter adopted from the delays. A fee may be charged for such majority. If the president modifies a documents under appropriate DOD and statement submitted by the majority, Department of the Army directives and the recommendation shall set forth the regulations. The manual that accom- modification. panies the index of decisions shall no- (3) Response to issues not included in tify the public that if an applicant in- matter adopted from the majority. The dicates that a review is scheduled for a recommendation shall set forth the fol- specific date, an effort will be made to lowing if not adopted in whole or in provide requested decisional docu- part from the majority: ments before that date. The individual (i) The issues on which the presi- or organization will be advised if that dent’s recommendation is based. Each cannot be accomplished. such decisional issue shall be addressed (b) Correspondence relating to mat- by the president. ters under the cognizance of the Read- (ii) The president’s response to items ing Room (including requests for pur- submitted as issues by the applicant. chase of indexes) shall be addressed to: (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 resulted 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- § 724.814 Secretarial Review Authority thority (SRA). There is no requirement (SRA). that the president submit a recommendation 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. prepared under the guidance in (1) The SRA may review the fol- § 724.813b. lowing types of cases before issuance of (b) Format for recommendation. If a the final notification of a decision: recommendation is provided, it shall (i) Any specific case in which the contain the president’s view whether SRA has an interest. there should be a change in the char- (ii) Any specific case that the presi- acter of or reason for discharge (or dent of the NDRB believes is of signifi- both). If the president recommends cant interest to the SRA. such a change, the particular change to (2) Cases reviewed by the SRA shall be made shall be specified. The rec- be considered under the standards set ommendation shall set forth the presi- forth in this part. dent’s position on decisional issues and (b) Processing the decisional document. issues submitted by the applicant (1) The decisional document shall be under the following guidance: transmitted by the NDRB president (1) Adoption of the NDRB’s decisional under § 724.813. document. The recommendation may (2) The following guidance applies to state that the president has adopted cases that have been forwarded to the the decisional document prepared by SRA except for cases reviewed on the the majority. The president shall en- NDRB’s own motion, without the par- sure that the decisional document ticipation of the applicant or the appli- meets the requirements of this enclo- cant’s counsel: sure. (i) The applicant and counsel or rep- (2) Adoption of the specific statements resentative, if any, shall be provided from the majority. If the President with a copy of the proposed decisional

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document, including the NDRB presi- (i) Adoption of the NDRB president’s dent’s recommendation to the SRA, if recommendation. The addendum may any. Classified information shall be state that the SRA has adopted the summarized. NDRB president’s recommendation. (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 decisional document issue shall be ad- not required unless the correction pro- dressed by the SRA. This includes rea- duces a different result or includes a sons for rejecting the conclusion of the substantial change in the decision by NDRB or the NDRB president with re- the NDRB (or NDRB president) of the spect to decisional issues which, if re- issues raised by the majority or the ap- solved in the applicant’s favor, would plicant. have resulted in a change to the dis- (d) The addendum of the SRA. The de- charge more favorable to the applicant cision of the SRA shall be in writing than that afforded by the SRA’s deci- and shall be appended as an addendum sion. Such issues shall be addressed to the decisional document under the under the principles in § 724.806(f). guidance in this subsection. (B) The SRA’s response to items sub- (1) The SRA’s decision. The addendum mitted as issues by the applicant. shall set forth the SRA’s decision (3) Response to the rebuttal. (i) If the whether there will be a change in the SRA grants the full change in dis- character of or reason for discharge (or charge requested by the applicant (or a both); if the SRA concludes that a more favorable change), that fact shall change is warranted, the particular be noted, the decisional issues shall be change to be made shall be specified. If addressed and no further response to the SRA adopts the decision rec- the rebuttal is required. ommended by the NDRB or the NDRB (ii) If the SRA does not grant the full president, the decisional document change in discharge requested by the shall contain a reference to the matter applicant (or a more favorable change), adopted. the addendum shall list each issue in (2) Discussion of issues. In support of rebuttal submitted by an applicant in the SRA’s decision, the addendum shall accordance with this section, and shall set forth the SRA’s position on set forth the response of the SRA under decisional issues, items submitted as the following guidance: issues by an applicant and issues raised (A) If the SRA rejects an issue in re- by the NDRB and the NDRB president buttal, the SRA may respond in ac- in accordance with the following guid- cordance with the principals in ance: § 724.806.

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(B) If the matter adopted by the SRA (1) There exists an error of fact, law, provides a basis for the SRA’s rejection procedure, or discretion associated of the rebuttal material, the SRA may with the discharge at the time of note that fact and cite the specific issuance; and that the rights of the ap- matter adopted that responds to the plicant were prejudiced thereby (such issue in rebuttal. error shall constitute prejudicial error (C) If the matter submitted by the if there is substantial doubt that the applicant does not meet the require- discharge would have remained the ments for rebuttal material, that fact same if the error had not been made); shall be noted. or (4) Index entries. Appropriate index (2) A change in policy by the military entries shall be prepared for the SRA’s service of which the applicant was a actions for matters that are not adopt- member, made expressly retroactive to ed from the NDRB’s proposed the type of discharge under consider- decisional document. ation, requires a change in the discharge. § 724.815 Complaints. (b) When a record associated with the A complaint is any correspondence in discharge at the time of issuance in- which it is alleged that a decisional volves a matter in which the primary document issued by the NDRB or the responsibility for corrective action SRA contains a specifically indentified rests with another organization (for ex- violation of 32 CFR part 70 or any ref- ample, another Board, agency, or erences thereto. Complaints will be re- court) the NDRB will recognize an viewed pursuant to 32 CFR part 70. error only to the extent that the error has been corrected by the organization Subpart I—Standards for with primary responsibility for cor- Discharge Review recting the record. (c) The primary function of the § 724.901 Objective of discharge re- NDRB is to exercise its discretion on view. issues of equity by reviewing the indi- The objective of a discharge review is vidual merits of each application on a ot examine the propriety and equity of case-by-case basis. Prior decisions in the applicant’s discharge and to effect which the NDRB exercised its discre- changes, if necessary. The standards of tion to change a discharge based on the review and the underlying factors issues of equity (including the factors which aid in determining whether the cited in such decisions or the weight standards are met shall be consistent given to factors in such decisions) do with historical criteria for determining not bind the NDRB in its review of sub- honorable service. No factors shall be sequent cases because no two cases established that require automatic present the same issues of equity. change or denial of a change in a dis- (d) The following applies to appli- charge. Neither the NDRB nor the Sec- cants who received less than fully hon- retary of the Navy shall be bound by orable administrative discharges be- any methodology of weighting of the cause of their civilian misconduct factors in reaching a determination. In while in an inactive duty status in a each case, the NDRB shall give full, reserve component and who were dis- fair, and impartial consideration to all charged or had their discharge re- applicable factors before reaching a de- viewed on or after April 20, 1971: the cision. An applicant may not receive a NDRB shall either recharacterize the less favorable discharge than that discharge to Honorable without any ad- issued at the time of separation. This ditional proceedings or additional pro- does not preclude correction of clerical ceedings shall be conducted in accord- errors. ance with the Court’s Order of Decem- ber 3, 1981, in Wood v. Secretary of De- § 724.902 Propriety of the discharge. fense to determine whether proper (a) A discharge shall be deemed to be grounds exist for the issuance of a less proper unless, in the course of dis- than honorable discharge, taking into charge review, it is determined that: account that:

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(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 (viii) Other acts of merit that may effectiveness of the military, including not have resulted in formal recognition military morale and efficiency. through an award or commendation; § 724.903 Equity of the discharge. (ix) Length of service during the service period which is the subject of A discharge shall be deemed to be eq- the discharge review; uitable unless: (x) Prior military service and type of (a) In the course of a discharge re- discharge received or outstanding post view, it is determined that the policies service conduct to the extent that such and procedures under which the appli- matters provide a basis for a more cant was discharged differ in material thorough understanding of the per- respects from policies and procedures formance of the applicant during the currently applicable on a service-wide period of service which is the subject of basis to discharges of the type under the discharge review; consideration, provided that: (xi) Convictions by court-martial; (1) Current policies or procedures represent 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: of discipline in the military service of (i) Total capabilities. This includes an which the applicant was a member. evaluation of matters such as age, edu- (c) In the course of a discharge re- cational level, and aptitude scores. view, it is determined that relief is Consideration may also be given as to warranted based upon consideration of whether the individual met normal the applicant’s service record and other military standards of acceptability for evidence presented to the NDRB viewed military service and similar indicators in conjunction with the factors listed of an individual’s ability to serve satis- in this paragraph and the regulations factorily, as well as ability to adjust to under which the applicant was dis- military service. charged, even though the discharge was (ii) Family and personal problems. This determined to have been otherwise eq- includes matters in extenuation or uitable and proper at the time of mitigation of the reason for discharge issuance. Areas of consideration in- that may have affected the applicant’s clude, but are not limited to: ability to serve satisfactorily. (1) Quality of service, as evidenced by (iii) Arbitrary or capricious actions. factors such as: This includes actions by individuals in (i) Service history, including date of authority which constiute a clear enlistment, period of enlistment, high- abuse of such authority and that, al- est rank achieved, conduct and pro- though not amounting to prejudicial ficiency ratings (numerical and nar- error, may have contributed to the de- rative); cision to discharge the individual or

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unduly influence the characterization ‘‘It is my desire that this policy be ex- of service. panded to include punitive discharges and (iv) Discrimination. This includes un- dismissals resulting from approved sentences authorized acts as documented by of courts-martial issed solely for conviction 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 DEFENSE—ADDRESSING CERTAIN authority set forth in Title 10, United States CATEGORIES OF DISCHARGES Code, sections 874(b), 1552 and 1553. ‘‘This policy is applicable only to dis- Secretary of Defense memorandum of Au- charges which have been executed on or be- gust 13, 1971, to the Secretaries of the Mili- fore July 7, 1971, or issued as a result of a tary Departments, The Chairman, Joint case in process on or before July 7, 1971. Chiefs of Staff; Subject: Review of Dis- charges Under Other Than Honorable Condi- ‘‘Former service members requesting a re- tions Issued to Drug Users: view will be notified of the results of the review. The Veterans’ Administration will also ‘‘Consistent with Department of Defense be notified of the names of former service Directive 1300.11, October 23, 1970, and my members whose discharges are recharacter- memorandum of July 7, 1971, concerning re- ized.’’ habilitation and treatment of drug users, administrative discharges under other than APPENDIX B TO PART 724—OATH OR AF- honorable conditions issued solely on the basis of personal use of drugs or possession of FIRMATION TO BE ADMINISTERED TO drugs for the purpose of such use will be re- DISCHARGE REVIEW BOARD MEMBERS viewed for recharacterization. Prior to undertaking duties as a Board ‘‘Accordingly, each Secretary of a Military member, each person assigned to such duties Department, acting through his/her Dis- in the precept of the Board shall execute the charge Review Board, will consider applica- following oath or affirmation which shall tions for such review from former service continue in effect throughout service with members. Each Secretary is authorized to the Board. issue a discharge under honorable conditions upon establishment of facts consistent with Oath/Affirmation this policy. Former service members will be notified of the results of the review. The Vet- I, llllll, do swear or affirm that I erans’ Administration will also be notified of will faithfully and impartially perform all the names of former service members whose the duties incumbent upon me as a member discharges are recharacterized. of the Naval Discharge Review Board; that I ‘‘The statute of limitations for review of will fully and objectively inquire into and discharges within the scope of this policy examine all cases coming before me; that I will be in accordance with 10 United States will, without regard to the status of the indi- Code 1553. vidual in any case, render my individual ‘‘This policy shall apply to those service judgment according to the facts, my con- members whose cases are finalized or in science and the law and regulations applica- process on or before July 7, 1971’’. ble to review of naval discharges, so help me Secretary of Defense memorandum of April God. 28, 1972, to Secretaries of the Military De- partments, Chairman, Joint Chiefs of Staff; APPENDIX C TO PART 724—SAMPLES OF Subject: Review of Punitive Discharges FORMATS EMPLOYED BY THE NAVAL Issued to Drug Users: DISCHARGE REVIEW BOARD ‘‘Reference is made to Secretary Packard’s memorandum of July 7, 1971, concerning re- Attach- Form Title habilitation and treatment of drug users, ment and my memorandum of August 13, 1971, subject: ‘Review of Discharges Under Other 1 Letter ...... En Block Notification of Decision to Commander, Naval Military Per- Than Honorable Conditions Issued to Drug sonnel Command (No Change). Users.’ 2 ...... do ...... En Block Notification of Decision to ‘‘My August 13, 1971 memorandum estab- Commander, Naval Military Per- lished the current Departmental policy that sonnel Command (Change). administrative discharges under other than 3 ...... do ...... En Block Notification of Decision to honorable conditions issued solely on the Commandant, Marine Corps (No basis of personal use of drugs or possession of Change). drugs for the purpose of such use will be re- 4 ...... do ...... En Block Notification of Decision to viewed for recharacterization to under hon- Commandant, Marine Corps (Change). orable conditions.

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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 discharge 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 discharged under conditions other than honor- such standards; able unless such person demonstrates to the ‘‘(B) Such determination shall be made by satisfaction of the Administrator that there such board, (i) on an expedited basis after no- are compelling circumstances to warrant tification by the Veterans’ Administration such prolonged unauthorized absence.’’ after to the Secretary concerned that such person ‘‘deserter,’’ in subsection (a), and by insert- has received, is in receipt of, or has applied ing a coma and ‘‘notwithstanding any action for such benefits or after a written request is subsequent to the date of such discharge by made by such person or such determination, a board established pursuant to section 1553 (ii) on its own initiative within one year of title 10’’ before the period at the end of after the date of enactment of this paragraph such subsection; and in any case where a general or honorable dis- (2) Adding at the end of such section the charge has been awarded on or prior to the following new subsection: date of enactment of this paragraph under ‘‘(e)(1) Notwithstanding any other provi- revised standards referred to in clause (A) (i), sion of law, (A) no benefits under laws ad- (ii), or (iii) of this paragraph, or (iii) on its ministered by the Veterans’ Administration own initiative at the time a general or hon- shall be provided, as a result of a change in orable discharge is so awarded in any case or new issuance of a discharge under section where a general or honorable discharge is 1553 of title 10, except upon a case-by-case re- awarded after such enactment date. view by the board of review concerned, sub- ‘‘If such board makes a preliminary deter- ject to review by the Secretary concerned, mination that such person would not have under such section, of all the evidence and been awarded an upgraded discharge under factors in each case under published uniform standards meeting the requirements of para- standard (which shall be historically con- graph (1) of this subsection, such personal sistent with criteria for determining honor- shall be entitled to an appearance before the able service and shall not include any cri- board, as provided for in section 1553(c) of terion for automatically granting or denying title 10, prior to a final determination on such change or issuance) and procedures gen- such question and shall be given written no- erally applicable to all persons administra- tice by the board of such preliminary deter- tively discharged or released from active mination and of his or her right to such ap- military, naval, or air service under other pearance. The Administrator shall, as soon than honorable conditons: and (B) any such as administratively feasible, notify the ap- person shall be afforded an opportunity to propriate board of review of the receipt of

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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 and related benefits authorized to be pro- added by section 1(a)(2) of this Act, until, (I) vided under chapter 17 of title 38, United the day on which a final determination not States Code, for any disability incurred or favorable to the person concerned is made on aggravated during active military, naval, or an expedited basis under paragraph (2) of air service in line of duty by a person other such section 3103(e), (II) the day following than a person barred from receiving benefits the expiration of ninety days after a prelimi- by section 3103(a) of such title, but shall not nary determination not favorable to such provide such health care and related benefits person is made under such paragraph, or (III) pursuant to this section for any disability the day following the expiration of one hun- incurred or aggravated during a period of dred and eighty days after such enactment service from which such person was dis- date, whichever day is the earliest, and (ii) charged by reason of a bad conduct dis- the United States shall not make any claim charge. to recover the value of any benefits provided Section 3. Paragraph (18) of section 101 of to such person prior to such earliest day; Title 38, United States Code, is amended to (B) With respect to any person awarded a read as follows: general or honorable discharge under revised ‘‘(18) The term ‘discharge or release’ in- standards for the review of discharges re- cludes, (A) retirement from the active mili- ferred to in clause (A) (i), (ii), or (iii) of such tary, naval, or air service, and (B) the satis- paragraph who has been provided any such factory completion of the period of active benefits prior to such enactment date, the military, naval, or air service for which a United States shall not make any claim to person was obligated at the time of entry recover the value of any benefits so provided; into such service in the case of a person who, and

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(C) The amendments made by clause (1) of § 725.2 Policy. section 1(a) shall apply, (i) retroactively only to persons awarded general or honor- (a) It is DON policy that official fac- able discharges under such revised standards tual information, both testimonial and and to persons who, prior to the date of en- documentary, should be made reason- actment of this Act, had not attained gen- ably available for use in Federal eral eligibility to such benefits by virtue of courts, state courts, foreign courts, (I) a change in or new issuance of a discharge and other governmental proceedings under section 1553 of title 10, United States unless that information is classified, Code, or (II) any other provision of law, and privileged, or otherwise protected from (ii) prospectively (on and after such enact- public disclosure. ment date) to all other persons. (b) DON personnel, as defined in § 725.4(b), however, shall not provide PART 725—RELEASE OF OFFICIAL such official information, testimony, INFORMATION FOR LITIGATION or documents, submit to interview, or PURPOSES AND TESTIMONY BY permit a view or visit, without the authorization required by this part. DEPARTMENT OF THE NAVY PER- (c) DON personnel shall not provide, SONNEL with or without compensation, opinion or expert testimony concerning official Sec. DON or Department of Defense (DOD) 725.1 Purpose. information, subjects, personnel, or ac- 725.2 Policy. tivities, except on behalf of the United 725.3 Authority to act. States or a party represented by the 725.4 Definitions. Department of Justice, or with the 725.5 Applicability. written special authorization required 725.6 Authority to determine and respond. by this part. 725.7 Contents of a proper request or de- (d) Section 725.2(b) and (c) constitute mand. a regulatory general order, applicable 725.8 Considerations in determining to to all DON personnel individually, and grant or deny a request. need no further implementation. A vio- 725.9 Action to grant or deny a request. lation of those provisions is punishable 725.10 Response to requests or demands in under the Uniform Code of Military conflict with this instruction. Justice for military personnel and is 725.11 Fees. the basis for appropriate administra- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 113, 5013; tive procedures with respect to civilian 31 U.S.C. 9701 and 32 CFR part 97. employees. Moreover, violations of this instruction by DON personnel may, SOURCE: 57 FR 2463, Jan. 22, 1992, unless otherwise noted. under certain circumstances, be ac- tionable under 18 U.S.C. 207. § 725.1 Purpose. (e) Upon a showing by a requester of exceptional need or unique cir- This instruction implements 32 CFR cumstances, and that the anticipated part 97 regarding the release of official testimony will not be adverse to the in- Department of the Navy (DON) infor- terests of the DON, DOD, or the United mation and provision of testimony by States, the General Counsel of the DON personnel for litigation purposes, Navy, the Judge Advocate General of and prescribes conduct of DON per- the Navy, or their respective delegates sonnel in response to a litigation re- may, in their sole discretion, and pur- quest or demand. It restates the infor- suant to the guidance contained in this mation contained in Secretary of the instruction, grant such written special Navy Instruction 5820.8A of 27 August authorization for DON personnel to ap- 19911, and is intended to conform in all pear and testify as expert or opinion respects with the requirements of that witnesses at no expense to the United instruction. States. § 725.3 Authority to act. 1 Copies may be obtained, if needed, from the Naval Publications and Forms Direc- (a) The General Counsel of the Navy, torate, Attn: Code 301, 5801 Tabor Avenue, the Judge Advocate General of the Philadelphia, PA 19120-5099. Navy, and their respective delegates

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[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 may further include whether installa- (1) Naval personnel may merely be tions, facilities, ships, or aircraft may percipient witnesses to an incident, in be visited or inspected; what, if any, which event their testimony would be conditions will be imposed upon any re- purely factual. On the other hand, they lease, interview, contact, testimony, may be involved with the matter only visit, or inspection; what, if any, fees through an after-the-event investiga- shall be charged or waived for access tion (e.g., JAGMAN investigation). De- under the fee assessment consider- scribing the manner in which they con- ations set forth in § 725.11; and what, if ducted their investigation and asking any, claims of privilege, pursuant to them to identify factual conclusions in this instruction, may be invoked before their report would likewise constitute any tribunal. factual matters to which they might testify. In contrast, asking them to § 725.4 Definitions. adopt or reaffirm their findings of fact, (a) Determining authority. The cog- opinions, and recommendations, or nizant DON or DOD official designated asking them to form or express any to grant or deny a litigation request. other opinion—particularly one based In all cases in which the United States upon matters submitted by counsel or is, or might reasonably become, a going to the ultimate issue of causa- party, or in which expert testimony is tion or liability—would clearly con- requested, the Judge Advocate General stitute precluded testimony under the or the General Counsel of the Navy, de- above policy. pending on the subject matter of the (2) Naval personnel, by virtue of their request, will act as determining au- training, often form opinions because thority. In all other cases, the respon- they are required to do so in the course sibility to act as determining author- of their duties. If their opinions are ity has been delegated to all officers formed prior to, or contemporaneously exercising general court-martial con- with, the matter in issue, and are rou- vening authority, or to their subordi- tinely required of them in the course of nate commands, and to other com- the proper performance of their profes- mands and activities indicated in sional duties, they constitute essen- § 725.6. tially factual matters (i.e., the opinion (b) DON personnel. Active duty and they previously held). Opinions formed former military personnel of the naval after the event in question, including service including retirees; personnel of responses to hypothetical questions, other DOD components serving with a generally constitute the sort of opinion

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or expert testimony which this instruc- § 725.5 Applicability. tion is intended to severely restrict. (a) This instruction applies to all (3) Characterization of expected testimony 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 official duties or because of their official sonnel or release of official DOD or status within DOD or its components, DON information during grand jury while such personnel were employed by proceedings. or on behalf of the DOD or on active (f) This instruction does not control duty with the United States Armed release of official information in re- Forces (determining whether ‘‘official sponse to requests unrelated to litiga- information’’ is sought, as opposed to tion or under the Freedom of Informa- non-DOD information, rests with the tion Act (FOIA), 5 U.S.C. 552, or the determining authority identified in Privacy Act, 5 U.S.C. 552a. This in- § 725.6, rather than the requester). struction does not preclude treating (f) Request or demand (legal process). any written request for DON records as Subpoena, order, or other request by a a request under the FOIA or Privacy federal, state, or foreign court of com- Acts. Activities are encouraged to petent jurisdiction, by any administra- treat such requests for documents tive agency thereof, or by any party or under the FOIA or the Privacy Act if other person (subject to the exceptions they are invoked by the requestor ei- stated in § 725.5) for production, disclo- ther explicitly or by fair implication. sure, or release of official DOD infor- See 32 CFR 701.3(a), 701.10(a). Activities mation or for appearance, deposition, are reminded that such treatment does or testimony of DON personnel as wit- not absolve them of the responsibility nesses. to respond in a timely fashion to legal

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process. In any event, if the official in- closure (in the latter event, compliance formation requested pertains to a liti- with 32 CFR part 97 and this part is re- gation matter which the United States quired); is a present or potential party, the re- (7) Cases involving garnishment or- lease authority should notify the dele- ders for child support and/or alimony. gate of the General Counsel or the The release of official information in Judge Advocate General, under § 725.6. these cases is governed by 5 CFR 581 (g) This part does not apply to re- and SECNAVINST 7200.163, or; lease of official information or testi- (8) Release of information to Federal, mony by DON personnel in the fol- state, and local prosecuting and law lowing situations: enforcement authorities, in conjunc- (1) Before courts-martial convened by tion with an investigation conducted any DOD component, or in administra- by a DOD component or DON criminal tive proceedings conducted by, or on investigative organization. behalf of, such component; (h) This part does not preclude offi- (2) Under administrative proceedings cial comment on matters in litigation conducted by, or on behalf of, the in appropriate cases. Equal Employment Opportunity Com- (i) The DOD General Counsel may no- mission (EEOC) or the Merit Systems tify DOD components that DOD will as- Protection Board (MSPB), the Federal sume primary responsibility for coordi- Labor Relations Authority, the Federal nating all litigation requests for de- Services Impasse Panel, or under a ne- mands for official DOD information or gotiated grievance procedure under a testimony of DOD personnel in litiga- collective bargaining agreement to tion involving terrorism, espionage, which the Government is a party; nuclear weapons, and intelligence (3) In response to requests by Federal sources or means. Accordingly, deter- Government counsel, or counsel rep- mining officials who receive requests resenting the interests of the Federal pertaining to such litigation shall no- Government, in litigation conducted, tify the Associate General Counsel in whole or in part, on behalf of the (Litigation) or the Deputy Assistant United States (e.g., Medical Care Re- Judge Advocate General (International covery Act claims, affirmative claims, Law or General Litigation) who shall or subpoenas issued by, or concurred in consult and coordinate with DOD Gen- by, Government counsel when the eral Counsel prior to any response to United States is a party), but the regu- such requests. lation does apply to an action brought (j) Relationship with Federal Rules of under the qui tam provisions of the Procedure. The requirements imposed False Claims Act in which a private by this instruction are intended, party brings an action in the name of among other things, to provide ade- the United States but in which the De- quate notice to DON regarding the partment of Justice either has not yet scope of proposed discovery. This will determined to intervene in the litiga- assure that certain DON information, tion or has declined to intervene; which properly should be withheld, is (4) As part of the assistance required not inadvertently released in response by the Defense Industrial Personnel Se- to a litigation request or demand, in- curity Clearance Review Program cluding a subpoena or other request for under DOD Directive 5220.62; discovery issued under Federal rules of (5) Release of copies of Manual of the procedure. When the United States is a Judge Advocate General (JAGMAN) in- party to Federal litigation and the vestigations, to the next of kin (or party opponent uses discovery methods their representatives) of deceased or (e.g., request for interrogatories and incompetent naval personnel; admissions, depositions) set forth in (6) Release of information by DON Federal rules of procedure, the Judge personnel to counsel retained on their Advocate General or General Counsel, behalf for purposes of litigation, unless in consultation with representatives of that information is classified, privi- the Department of Justice or the cog- leged, or otherwise protected from dis- nizant United States Attorney, may

2 See footnote 1 to § 725.1. 3 See footnote 1 to § 725.1.

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determine whether the requirement for Determining authorities, if in doubt a separate written request in accord- whether the United States is likely to ance with § 725.7 should be waived. Even become a party to the litigation, if this requirement is waived, however, should seek guidance from representa- DON personnel who are subpoenaed to tives of the Offices of the Judge Advo- testify still will be required to obtain cate General or General Counsel. The the written permission described in Judge Advocate General and the Gen- § 725.2. eral Counsel have the authority to determine whether a litigation request § 725.6 Authority to determine and re- should be forwarded to them, or respond. 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- Matters not clearly within the purview thority of its transfer of the request or of a particular command counsel shall demand. be referred to Associate General Coun- (c) Litigation matters to which the sel (Litigation), who may either re- United States is, or might reasonably be- spond or refer the matter for action to come, a party. Examples of such in- another office. stances include suits under the Federal (3) Matters involving the Armed Tort Claims Act, Freedom of Informa- Services Board of Contract Appeals tion Act, Medical Care Recovery Act, shall be forwarded to these respective Tucker Act, and suits against Govern- counsel except where the determina- ment contractors where the contractor tion may involve the assertion of the may interplead the United States or deliberative process privilege before seek indemnification from the United that Board. In such an event, the mat- States for any judgment paid, e.g., ter shall be forwarded for determina- aviation contractors or asbestos mat- tion to the Associate General Counsel ters. Generally, a suit in which the (Litigation). plaintiff is representing the interests of (d) Litigation matters in which the the United States under the Medical United States is not, and is reasonably Care Recovery Act is not a litigation matter to which the United States is, 4 See footnote 1 to § 725.1. or might reasonably become, a party. 5 See footnote 1 to § 725.1.

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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 wise respond for the Judge Advocate DOD Directive 5530.16, 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- a request by counsel. Requests for doc- mining authority better suited under uments maintained by the National the circumstances to determine the Personnel Records Center will be deter- matter and respond, but the requester mined by the official provided in shall be notified of the referral. Fur- § 725.8(b)(2)(iii). ther, each determining authority speci- (iv) Expert or opinion requests. Any re- fied in this paragraph may further del- quest for expert or opinion consulta- egate his or her decisional authority to tions, interviews, depositions, or testi- a principal staff member, staff judge mony will be referred to the Deputy advocate, or legal advisor. Assistant Judge Advocate General (D) In the alternative, the requester (General Litigation) who will respond may forward the request to the Deputy for the Judge Advocate General, or Assistant Judge Advocate General (General Litigation), who may refer transmit the request to the appropriate the matter to another determining au- DAJAG for response. Matters not thority for response, and so notify the clearly within the purview of a par- requester. ticular Deputy Assistant Judge Advo- (ii) Visits and views. A request to visit cate General will be retained by the a DON activity, ship, or unit, or to inspect material or spaces located there 6 See footnote 1 to § 725.1.

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Deputy Assistant Judge Advocate Gen- the requester. Absent independent in- eral (General Litigation), who may ei- formation, the following data is nec- ther respond or refer the matter to an- essary to assess a request. other determining authority for re- (1) Identification of parties, their coun- sponse. sel and the nature of the litigation. (i) (2) Matters within the cognizance of the Caption of case, docket number, court. General Counsel of the Navy—(i) Matters (ii) Name, address, and telephone not involving issues of Navy policy. Such number of all counsel. matters shall be forwarded for deter- (iii) The date and time on which the mination to the respective counsel for documents, information, or testimony Naval Sea Systems Command, Naval sought must be produced; the requested Air Systems Command, Naval Supply location for production; and, if applica- Systems Command, Naval Facilities ble, the estimated length of time that Engineering Command, Space and attendance of the DON personnel will Naval Warfare Command, Office of the be required. Navy Comptroller, Commandant of the (2) Identification of information or doc- Marine Corps, Office of the Chief of uments requested. (i) A description, in as Naval Research, Military Sealift Com- much detail as possible, of the docu- mand, Office of Civilian Personnel Pol- ments, information, or testimony icy, or to the Assistant General Coun- sought, including the current military sel (Acquisition), depending upon who service, status (active, separated, re- has cognizance over the information or tired), social security number, if personnel at issue. known, of the subject of the requested (ii) Matters involving issues of Navy pay, medical, or service records; policy. Such matters shall be forwarded (ii) The location of the records, infor determination to the General Coun- cluding the name, address, and tele- sel of the Navy via the Associate Gen- phone number, if known, of the person eral Counsel (Litigation). from whom the documents, informa- (iii) Matters involving asbestos litigation, or testimony is sought; and tion. Such matters shall be forwarded (iii) A statement of whether factual, to the Office of Counsel, Naval Sea Sys- opinion, or expert testimony is re- tems Command Headquarters, Per- quested (see §§ 725.4(c) and sonnel and Labor Law Section (Code 725.8(b)(3)(ii)). 00LD), Washington, DC 20362-5101. (3) Description of why the information (3) Matters not clearly within the cog- is needed. (i) A brief summary of the nizance of either the Judge Advocate Gen- facts of the case and the present pos- eral or the General Counsel. Such mat- ture of the case. ters may be sent to the Deputy Assist- (ii) A statement of the relevance of ant Judge Advocate General (General the matters sought to the proceedings Litigation) or the Associate General at issue. Counsel (Litigation), who will, in con- (iii) If expert or opinion testimony is sultation with the other, determine the sought, an explanation of why excep- appropriate authority to respond to the tional need or unique circumstances request. exist justifying such testimony, including why it is not reasonably available § 725.7 Contents of a proper request or from any other source. demand. (b) Additional considerations. The cir- (a) Routine requests. If official infor- cumstances surrounding the under- mation is sought, through testimony lying litigation, including whether the or otherwise, a detailed written request United States is a party, and the na- must be submitted to the appropriate ture and expense of the requests made determining authority far enough in by a party may require additional in- advance to assure an informed and formation before a determination can timely evaluation of the request, and be made. Providing the following infor- prevention of adverse effects on the mation or stipulations in the original mission of the command or activity request may expedite review and elimi- that must respond. The determining nate the need for additional cor- authority shall decide whether suffi- respondence with the determining au- cient information has been provided by thority.

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(1) A statement of the requester’s quests and participate in any dis- willingness to pay in advance all rea- covery. sonable expenses and costs of searching (c) Response to deficient requests. A for and producing documents, informa- letter request that is deficient in pro- 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 forth here, which were not anticipated (4) An agreement to conduct the dep- in the course of proper pretrial plan- osition at the location of the witness, ning and discovery. Oral requests and unless the witness and his or her com- subsequent determinations should be manding officer or cognizant superior, reserved for instances where factual as applicable, stipulate otherwise; matters are sought, and compliance (5) In the case of former DON per- with the requirements of a proper writ- sonnel, a brief description of the length ten request would result in the effec- and nature of their duties while in DON tive denial of the request and cause an employment, and a statement of injustice in the outcome of the litiga- whether such duties involved, directly tion for which the information is or indirectly, the information or mat- sought. No requester has a right to ters as to which the person will testify; make an oral request and receive a de- (6) An agreement to provide free of termination. Whether to permit such charge to any witness a signed copy of an exceptional procedure is a decision any written statement he or she may within the sole discretion of the deter- make, or, in the case of an oral deposi- mining authority, unless overruled by tion, a copy of that deposition tran- the General Counsel or the Judge Ad- script, if taken by a stenographer, or a vocate General, as appropriate. video tape copy, if taken solely by (2) If the determining authority con- video tape, if not prohibited by applica- cludes that the request, or any portion ble rules of court; of it, meets the emergency test, he or (7) An agreement that if the local she will require the requester to agree rules of procedure controlling the liti- to the conditions set forth in § 725.7(a). gation so provide, the witness will be The determining authority will then given an opportunity to read, sign, and orally advise the requester of the de- correct the deposition at no cost to the termination, and seek a written con- witness or the Government; firmation of the oral request. There- (8) A statement of understanding after, the determining authority will that the United States reserves the make a written record of the disposi- right to have a representative present tion of the oral request including the at any interview or deposition; and grant or denial, circumstances requir- (9) A statement that counsel for ing the procedure, and conditions to other parties to the case will be pro- which the requester agreed. vided with a copy of all correspondence (3) The emergency procedure should originated by the determining author- not be utilized where the requester re- ity so they may have the opportunity fuses to agree to the appropriate condi- to submit any related litigation re- tions set forth in § 725.7(a) or indicates

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unwillingness to abide by the limits of rights, reveal the identity of an intel- the oral grant, partial grant, or denial. ligence source or source of confidential information, conflict with U.S. obliga- § 725.8 Considerations in determining tions under international agreement, to grant or deny a request. or be otherwise inappropriate under (a) General considerations. In deciding the circumstances; whether to authorize release of official (9) Whether attendance of the re- information, or the testimony of DON quested witness at deposition or trial personnel concerning official informa- will unduly interfere with the military tion (hereafter referred to as ‘‘the dis- mission of the command; and closure’’ under a request conforming (10) Whether, in a criminal case, re- with the requirements of § 725.7, the de- quiring disclosure by a defendant of determining authority shall consider the tailed information about the relevance following factors: of documents or testimony as a condi- (1) The DON policy regarding disclo- tion for release would conflict with the sure in § 725.2; defendant’s constitutional rights. (2) Whether the request or demand is (b) Specific considerations—(1) Docu- unduly burdensome or otherwise inap- ments, interviews, depositions, testimony, propriate under applicable court rules; and views (where the United States is, or (3) Whether disclosure, including re- may become, a party). All requests per- lease in camera (i.e., to the judge or taining to such matters shall be for- court alone), is appropriate under pro- warded to the Judge Advocate General cedural rules governing the case or or the General Counsel, as appropriate matter in which the request or demand under § 725.6(c). arose; (2) Documents (where the United States (4) Whether disclosure would violate is not, and is reasonably not expected to or conflict with a statute, executive become a party)—(i) Unclassified Navy order, regulation, directive, instruc- and Marine Corps records. Where parties tion, or notice; or potential parties desire unclassified (5) Whether disclosure, in the absence naval records in connection with a liti- of a court order or written consent, gation matter, the subpoena duces would violate 5 U.S.C. 552, 552a; tecum or court order will be served, (6) Whether disclosure, including re- under 32 CFR 257.5(c), upon the General lease in camera, is appropriate or nec- Counsel of the Navy, along with a writ- essary under the relevant substantive ten request complying with § 725.7. law concerning privilege (e.g., attor- (A) If the determining authority to ney-client, attorney work-product, or whom the matter is referred deter- physician-patient in the case of civil- mines to comply with the order or sub- ian personnel); poena, compliance will be effected by (7) Whether disclosure, except when transmitting certified copies of records in camera (i.e., before the judge alone) to the clerk of the court from which and necessary to assert a claim of process issued. If, because of an un- privilege, would reveal information usual circumstance, an original record properly classified under the DOD In- must be produced by a naval custodian, formation Security Program under it will not be removed from the cus- DOD 5200.1-R7, withholding of unclassi- tody of the person producing it, but fied technical data from public disclo- copies may be placed in evidence. sure following OPNAVINST 5510.161; (B) Upon written request of one or privileged Naval Aviation Safety Pro- more parties in interest or their re- gram information (OPNAVINST 3750.6Q spective attorneys, records which (NOTAL))8, or other matters exempt would be produced in response to a from unrestricted disclosure under 5 court order signed by a judge as set U.S.C. 552, 552a; forth above may be furnished without a (8) Whether disclosure would unduly court order, but only upon a request interfere with ongoing law enforcement complying with § 725.7 and only when proceedings, violate constitutional such records are not in a ‘‘system of records’’ as defined by the Privacy Act 7 See footnote 1 to § 725.1. (5 U.S.C. 552a). In determining whether 8 See footnote 1 to § 725.1. a record not contained in a ‘‘system of

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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 refused 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 requested 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 manding information from, or produc- produced because of unusual cir- tion of, service or medical records of cumstances, they may not be removed former Navy and Marine Corps per- from the custody of the official pro- sonnel in the custody of the National ducing them, but copies may be placed Personnel Records Center will be on the record. served upon the Director, National Per- (v) JAGMAN investigations (other than sonnel Records Center, 9700 Page Bou- to next of kin). The Deputy Assistant levard, St. Louis, MO 63132. If records Judge Advocate General having cog- responsive to the request are identified nizance over the records at issue for and maintained at the National Per- litigation or prospective litigation pur- sonnel Records Center, that Center poses may release the records if a com- shall make appropriate certified (au- plete release will result. The Assistant thenticated) copies of the information Judge Advocate General (Civil Law) requested. These copies will then be will make determinations concerning forwarded, along with the request, in the release of the records specified in the case of Navy personnel, to Chief, this subparagraph if a release of less Bureau of Naval Personnel (Pers-06), than the complete requested record Washington, DC 20370-5000, or his dele- will result. A release to next of kin of gate, who will respond. In the case of incompetent or deceased DON per- Marine Corps personnel, the copies and sonnel or their representatives is exempt from these requirements and this 9 See footnote 1 to § 725.1. part. 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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(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 land Center, Anthony J. Celebrezze the activity, ship, or unit at issue is Federal Building, Cleveland, OH 44199- not limited by this part. Accordingly, 2055. Official pay records of active- he or she may prescribe appropriate duty, reserve, retired, or former Ma- conditions as to time, place, and cir- rines should be requested from Direc- cumstances (including proper restric- tor, Defense Finance and Accounting tions on photography). Service, Kansas City Center (Code G), (iv) Non-DOD information. A request Kansas City, MO 64197-0001. for disclosure under this part, particu- (3) Interviews, depositions, and testi- larly through the testimony of a wit- mony (where the United States is not, and ness, may involve both official infor- is reasonably not expected to become, a mation and non-DOD information (e.g., party)—(i) Factual matters. DON policy in the case of a person who has ac- favors disclosure of factual matters quired additional and separate knowl- when disclosure does not violate the edge or expertise wholly apart from criteria stated in this section. Distin- Government employment). Deter- guishing between factual matters and mining whether or not official informa- expert or opinion matters (where DON tion is at issue is within the purview of policy favors non-disclosure) requires the determining authority, not the re- careful analysis. Opinion matters are quester. A requester’s contention that defined at § 725.4(c). only non-DOD information is at issue

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is not dispositive. The requester must sures requested, stating a specific de- still comply with this instruction to termination on each particular re- support that contention. If non-DOD quest. When a request is denied in information is at issue in whole or in whole or in part, a statement of the part, the determining authority shall reasons for denial should be provided to so state in the written determination fully inform a court of the reasons un- described in § 725.9. He or she shall derlying the determination if it is chal- make no other determination regard- lenged. ing that non-DOD information. (f) A copy of any denial, in whole or in part, of a request, should be for- § 725.9 Action to grant or deny a request. 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 to testimony by former naval per- been received and the requester refuses sonnel and former civilian employees to pay fees or otherwise comply with of DON. A proper request must be the guidance and requirements imposed made, under § 725.7, to obtain testi- by this part, or if the determining au- mony by former personnel regarding thority declines to make some or all of official DOD information. However, the subpoenaed information available, this part is not intended to place un- or if the determining authority has had reasonable restraints upon the post- insufficient time to complete its deter- employment conduct of such personnel. mination as to how to respond to the Accordingly, requests for expert or request, the determining authority opinion testimony by such personnel must promptly notify the General Liti- will normally be granted unless that gation Division of the Office of the testimony would constitute a violation Judge Advocate General or the Navy of the U.S. Code (e.g., 18 U.S.C. 201 et Litigation Office of the Office of the seq.), conflict with pertinent regula- General Counsel, which offices will de- tions (e.g., Secretary of the Navy In- termine, in consultation with the De- struction 5370.2H), or disclose properly partment of Justice, the appropriate classified or privileged information. response to be made to the tribunal (c) A determination to grant or deny which issued the subpoena. Because the should be made as expeditiously as pos- Federal Rules of Civil Procedure re- sible to provide the requester and the quire that some objections to sub- court with the matter at issue or with poenas must be made either within 10 a statement of the reasons for denial. days of service of the subpoena or on or The decisional period should not ex- before the time for compliance, which- ceed 10 working days from receipt of a ever first occurs, and because this will complete request complying with the require consultation with the Depart- requirements of § 725.7, absent excep- ment of Justice, timely notice is essen- tional or particularly difficult cir- tial. cumstances. The requester should also be informed promptly of the referral of § 725.10 Response to requests or de- any portion of the request to another mands in conflict with this instruc- authority for determination. tion. (d) Except as provided in § 725.7(d), a (a) Except as otherwise provided in determination to grant or deny shall be this paragraph, DON personnel, includ- in writing. ing former military personnel and ci- (e) The determination letter should vilian employees, shall not produce, respond solely to the specific disclo- disclose, release, comment upon, or

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testify concerning any official DOD in- priate DON official, respectfully de- formation in response to a litigation cline to comply with the demand. request or demand without prior writ- Legal counsel for the command con- ten approval of the appropriate DON cerned should accompany and advise official designated in § 725.6. If a re- DON personnel during any court pro- quest has been made, and granted, in ceedings involving the foregoing cir- whole or in part, per 32 CFR part 97 and cumstances. this part, DON personnel may only (d) It is expected that all DON ac- produce, disclose, release, comment tions in the foregoing paragraphs will upon, or testify concerning those mat- be taken only after active consultation ters specified in the request and prop- with the appropriate component of the erly approved by the determining au- Department of Justice. Generally, DON thority designated in § 725.6. See United personnel will be instructed to decline States ex rel. Touhy v. Ragen, 340 U.S. to comply with a court order only if 462 (1951). the Department of Justice commits to (b) If, after DON personnel have re- represent the DON personnel in ques- ceived a litigation request or demand tion. and have in turn notified the appropriate determining authority described § 725.11 Fees. in § 725.6, a response to the request or (a) Generally. Except as provided demand is required before instructions below, determining authorities shall from the responsible official have been charge reasonable fees and expenses to received, the responsible authority des- parties seeking official DON informa- ignated in § 725.6 shall notify the Dep- tion or testimony under this instruc- uty Assistant Judge Advocate General tion. Pursuant to 32 CFR 288.4, 288.10, or Associate General Counsel (Litiga- these fees should include all costs of tion) who has cognizance over the mat- processing a request for information, ter. That official will furnish the re- including time and material expended. quester, the court, or other authority Travel for active duty members sum- that the request or demand is being re- moned as witnesses is governed by viewed in accordance with this part Joint Travel Regulations, Vol. I, Chap. and seek a stay of the request or de- 7, pt. E. and Navy Travel Instructions, mand pending a final determination. Chap. 6, pt. E.13 Travel for civilian per- (c) If a court of competent jurisdic- sonnel summoned as witnesses is gov- tion or other appropriate authority de- erned by the Joint Travel Regulations, clines to stay the effect of the request Vol. II, Chap. 4, pt. E.14 or demand in response to action taken (1) When DON is a party. No fees nor- under § 725.10(b), or if such court or mally shall be charged when the DON other authority orders that the request is a party to the proceedings, and the or demand must be complied with, not- activity holding the requested informa- withstanding the final decision of the tion or employing the witness shall appropriate DON official, the DON per- bear the expense of complying with the sonnel upon whom the request or de- request. mand was made will, if time permits, (2) When another federal agency is a notify the determining authority of party. No fees shall be charged to the such ruling or order. That authority requesting agency. Travel and per diem will notify the Deputy Assistant Judge expenses may be paid by the requesting Advocate General or the Associate agency, or by the Navy activity to General Counsel (Litigation) having which the requested witness is as- cognizance over the matter. After due signed, subject to reimbursement from consultation and coordination with the the requesting agency. Department of Justice, as required by (3) When neither DON nor another fed- the Manual of the Judge Advocate Gen- eral agency is a party. Fees shall be eral, that official will determine charged to the requester for time taken whether the individual is required to from official duties by DON personnel comply with the request or demand and who are authorized to be interviewed, will notify the requester, the court, or other authority accordingly. The wit- 13 See footnote 1 to § 725.1. ness shall, if directed by the appro- 14 See footnote 1 to § 725.1.

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give testimony, or escort persons on (2) Waiver or reduction of fees. The de- views and visits of installations. At the termining authority may waive or re- discretion of the cognizant command, duce fees pursuant to 32 CFR 288.4, DON personnel need not be made avail- 288.9, provided such waiver or reduction able during duty hours unless directed is in the best interest of the DON and by subpoena. Time which DON per- the United States. Fee waivers and re- sonnel spend in court testifying, or ductions shall not be routinely grant- waiting to testify on factual matters ed, or granted under circumstances shall not be charged. Fees should be which might create the appearance charged, however, for expert or opinion that DON favors one party over an- testimony based upon the witness’s other. education, training, or experience. Tes- (3) Witness fees required by the court. timony by a treating physician called Witness fees required by the rules of to testify about his personal knowledge the applicable court shall be paid di- of a specific case is considered fact not rectly to the witness by the requester. expert testimony. Fees are payable to Such amounts are to defray the cost of the Treasurer of the United States for travel and per diem. In a case where deposit in the Treasury’s miscellaneous the Government has paid the cost of receipts. Rates for uniformed personnel travel and per diem, the witness shall are published in NAVCOMPT Notice turn over to his or her supervisor any 7041 series.15 Pursuant to 32 CFR 288.4, payment received from a private party charges for civilian personnel should to defray the cost of travel that, when include the employee’s hourly rate of added to amounts paid by the Govern- pay, as well as allowances and benefits. ment, exceed the actual cost of travel. Except as provided in § 725.11(b)(4), no The supervisor shall forward the funds may be expended for travel or per amount turned over by the witness to diem of active duty members when an the Office of the Comptroller of the Navy for appropriate action. agency of the Federal Government is (4) Exceptional cases. If neither the not a party. The requesting party is re- DON, nor an agency of the Federal sponsible for travel arrangements and Government is a party, appropriated funding. Government funding of travel funds may be used to pay, without re- and per diem for civilian employees is imbursement, travel and per diem of authorized. DON personnel who are witnesses in (b) Special circumstances—(1) Refusal criminal or civil proceedings, provided, to pay fees. In cases in which a sub- the case is directly related to the poena has been received and the re- Armed Services, or its members, and quester refuses to pay appropriate fees, the Armed Services have a genuine and it may become necessary to request the compelling interest in the outcome. Department of Justice to take appropriate legal action before the court issuing the subpoena. Determining au- PART 726—PAYMENTS OF thorities should consult promptly with AMOUNTS DUE MENTALLY IN- the OJAG General Litigation Division COMPETENT MEMBERS OF THE or the Navy Litigation Office of the NAVAL SERVICE General Counsel if this course of action appears necessary, because some objec- Sec. tions to subpoenas must be made either 726.1 Purpose. 726.2 Scope. within ten days of service of the sub- 726.3 Authority to appoint trustees. poena or on or before the time for com- 726.4 Procedures for convening competency pliance, whichever first occurs, and be- boards. cause this will require timely consulta- 726.5 Procedures for designation of a trust- tion with the Department of Justice. If ee. no subpoena has been issued, the deter- 726.6 Travel orders. 726.7 Status of pay account. mining authority must decide whether 726.8 Emergency funds. to deny the request or, if appropriate, 726.9 Reports and supervision of trustees. waive the fees. AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031, and 5148; 37 U.S.C. 601-604, and 1001; 32 CFR 700.206 15 See footnote 1 to § 725.1. and 700.1202.

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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 § 726.1 Purpose. in nonnaval medical facilities, the regional 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 training) or on the retired list of the mental health, is accurate and com- Navy or Marine Corps; and plete. (2) Members of the Fleet Reserve or (5) The requirement for the com- Fleet Marine Corps Reserve. petency board is in addition to and separate from the medical board proce- § 726.3 Authority to appoint trustees. dures. Each board member will sign the The Judge Advocate General or his report of the board and will certify designee is authorized to act for the whether the member is or is not men- Secretary of the Navy to appoint trust- tally capable of managing his affairs. ees to receive and administer Federal After approval by the convening au- monies for members and to carry out thority, the original board report is the provisions of this chapter. forwarded to the Judge Advocate Gen- eral. § 726.4 Procedures for convening com- (b) Records. (1) The convening author- petency boards. ity will forward the original of each (a) Competency Board. (1) The com- board report to the Judge Advocate manding officer of the cognizant naval General, Department of the Navy, 200 medical facility will convene a board of Stovall Street, Alexandria, VA 22332- not less than three medical officers or 2400. physicians, one of whom will be a psy- (2) In the case of a finding that a chiatrist, when there is evidence that a member is not mentally capable of member who is a patient in the naval managing his affairs, the forwarding medical facility may be incapable of endorsement will set forth the name, handling his affairs. The board will be relationship, address, and telephone convened in accordance with chapter number(s), of the member’s next of kin

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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 the Judge Advocate General or his des- trustee. 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 as directed by the Judge Advocate Gen- (3) Directly to the member following eral or his designee; a determination that the member is ca- (2) Ascertain that the prospective pable of managing his affairs. trustee is willing to execute an affi- (b) The Commanding Officer, Navy davit acknowledging that all monies Finance Center, or Commanding Offi- will be applied to the use and benefit of cer, Marine Corps Finance Center, will the member and his legal dependents notify the Judge Advocate General of and that no fee, commission, or charge, any fact affecting the pay of a member for any service performed by the trust- mentally incapable of managing his af- ee, except for payment of the required fairs. This includes waiver of retired bond, will be paid from Federal monies pay in favor of Veterans Administra- received by the trustee. tion compensation; death of the mem- (3) Forward recommendations to the ber; death of the trustee; or, notice of Judge Advocate General for appro- appointment of a legal representative priate action. by a State court of competent jurisdiction. At the request of the Judge Advo- § 726.6 Travel orders. cate General or his designee, the appro- The Chief of Naval Personnel or the priate finance center will report all Director, Personnel Management Divi- disbursements from the member’s ac- sion, Headquarters, Marine Corps, may count. issue travel orders to a member to ap- (c) The Navy or Marine Corps Fi- pear before an examining board con- nance Center will seek direction from vened to determine whether the mem- the Judge Advocate General when in- ber is mentally capable of managing formation from other sources indicates his affairs. In the case of permanently a member is not competent to manage retired members, however, travel for his affairs.

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§ 726.8 Emergency funds. writing. If a satisfactory accounting is (a) Until a trustee is appointed, the not received by the Judge Advocate Judge Advocate General or his designee General within the time specified, the may appoint the member’s com- trustee will be declared in default of manding officer or other appropriate the trustee agreement and will become official to receive emergency funds up liable for all unaccounted trustee to $1,000.00 from the pay account of the funds. If a trustee is declared in default member without bond. The money will of the trustee agreement, the appro- be used for the benefit of the member priate finance center will be directed and his legal dependents. to terminate payments to the trustee (b) The commanding officer of any and, if necessary, a successor trustee naval medical facility may designate may be appointed. The trustee and sur- an officer of the command to receive ety will be notified in writing by the and account for up to $35.00 per month Judge Advocate General or his designee for the health and comfort of a member of the declaration of default. The noti- who is found mentally incapable of fication will state the reasons for de- handling his affairs and who is a pa- fault, the amount of indebtedness to tient at the naval medical facility, if: the Government, and will demand pay- (1) A trustee has not been designated ment for the full amount of indebted- under this chapter and a committee, ness. If payment in full is not received guardian, or other legal representative by the Judge Advocate General within has not been appointed by a State an appropriate period of time from no- court of competent jurisdiction; tification of default, the account may (2) The member has no other funds be forwarded to the Department of Jus- available for use in his own behalf; and tice for recovery of funds through ap- (3) The funds are necessary for the propriate civil action. purchase of items necessary for the health and comfort of the member. PART 727—LEGAL ASSISTANCE (c) This section will be cited on the pay voucher as authority for payment Sec. and receipt of such funds. 727.1 Purpose. 727.2–727.4 [Reserved] § 726.9 Reports and supervision of 727.5 Persons eligible for assistance. trustees. 727.6 Functions of legal assistance officers. (a) Accounting reports. The trustee 727.7 Limitations on service provided. designated under this chapter will sub- 727.8 Confidential and privileged character mit accounting reports annually or at of service provided. such other times as the Judge Advo- 727.9 Referrals to civilian lawyers. cate General or his designee directs. 727.10 Fees, compensation, solicitation, and The Judge Advocate General will pro- representation in civilian courts. 727.11 Supervision. vide forms to be used by trustees for 727.12 Communications. the required accounting report. The re- 727.13 Reports. port will account for all funds received 727.14 Files and records. from the Navy or Marine Corps on be- 727.15 Liberal construction of part. half of the member. When payments to a trustee are terminated for any rea- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031 and 5148; 32 CFR 700.206 and 700.1202. son, the trustee will submit a final accounting report to the Judge Advocate SOURCE: 38 FR 6026, Mar. 6, 1973, unless oth- General. Upon approval of the final ac- erwise noted. counting report, the trustee and the surety will be discharged from liabil- § 727.1 Purpose. ity. A legal assistance program providing (b) Failure to submit a report and de- needed legal advice and assistance to fault. If an accounting report is not re- military personnel and their depend- ceived by the date designated by the ents has been in operation in the naval Judge Advocate General or his des- service since 1943. The program has im- ignee, or an accounting is unsatisfac- proved the morale of personnel and re- tory, the Judge Advocate General or duced disciplinary problems since its his designee will notify the trustee in inception. The purpose of this part is

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to provide guidelines for the continu- appropriate civilian bar officials, serve ation of the program. as advocate and counsel for, and provide full legal representation including §§ 727.2–727.4 [Reserved] representation in court to, persons eligible for assistance in connection with § 727.5 Persons eligible for assistance. their personal legal problems. Legal assistance shall be available to (4) Shall, subject to the direction of members of the Armed Forces of the the senior legal assistance officer of United States and their dependents, the command, establish contact and and military personnel of allied na- maintain liaison with local bar organi- tions serving in the United States, its zations, lawyer referral services, legal territories or possessions. Legal assist- aid societies, and other local organiza- ance is intended primarily for the ben- tions through which the services of ci- efit of active duty personnel during ac- vilian lawyers may be made available tive service, including reservists (and to military personnel and their depend- members of the National Guard) on ac- ents. tive duty for 30 days or more. As re- (5) Shall supervise the personnel and sources permit, legal assistance may be operation of the legal assistance office extended to retired military personnel, in accordance with good legal practice their dependents, survivors of members and the policies and guidance provided of the Armed Forces who would be eli- by the Judge Advocate General. gible were the service member alive, (6) Shall advise persons with com- reservists on active duty for single pe- plaints of discrimination on policies riods of 29 days or less, and in overseas and procedures under the Civil Rights areas, to civilians, other than local- Act of 1964 and pertinent Navy instruc- hire employees, who are in the employ tions. of, serving with, or accompanying the (b) Nature of assistance. Legal assist- U.S. Armed Forces, and their depend- ance officers and administrative and ents, when and if the workload of the clerical personnel assigned to legal as- office renders such service feasible, and sistance offices perform legal assist- other persons authorized by the Judge ance duties as official duties in the ca- Advocate General of the Navy. pacity of an officer or an employee of [65 FR 26748, May 9, 2000] the United States. Persons performing legal assistance duties, however, § 727.6 Functions of legal assistance of- should not mislead those with whom ficers. they may deal into believing that their (a) Basic duties. A legal assistance of- views or opinions are the official views ficer, while performing legal assistance or opinions of, approved by, or binding duties, in addition to performing any on, the Department of the Navy or the other duties which may be assigned to United States. him/her: (c) Duty to client. A legal assistance (1) Shall counsel, advise, and assist officer should exercise his independent persons eligible for assistance in con- professional judgment on behalf of his nection with their personal legal prob- client within the standards promul- lems, or refer such persons to a civilian gated in the Code of Professional Re- lawyer as provided in § 727.9. sponsibility and the specific limita- (2) Shall serve as advocate and coun- tions imposed in this part. sel for persons eligible for assistance in (d) Professional legal advice. Legal as- connection with their personal legal sistance is authorized for personal problems and may prepare and sign legal affairs only, as contrasted with correspondence on behalf of a client, military justice problems, business negotiate with another party or his ventures, or matters that are not of a lawyer, and prepare all types of legal personal nature. Legal assistance du- documents, including pleadings, as are ties are separate and apart from re- appropriate. sponsibilities of trial counsel, defense (3) Shall, in appropriate cases and counsel, or others involved in proc- under guidelines prescribed in the Man- essing courts-martial, nonjudicial pun- ual of the Judge Advocate General con- ishments, administrative boards or templating agreements or liaison with proceedings, and investigations. Only

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legal assistance officers are authorized advice in domestic violence cases will to render services that call for the pro- be consistent with the Department of fessional judgment of a lawyer. The the Navy family advocacy program. If legal assistance officer may delegate two or more eligible persons with con- tasks to clerks, secretaries, and other flicting interests seek legal assistance lay personnel provided the officer from the same office on the same mat- maintains a direct relationship with ter, the party first establishing an at- the client, supervises the delegated torney-client relationship will be pro- work, and has complete professional re- vided representation. Other parties sponsibility for the work product. shall be advised that they are also eli- Services that call for the professional gible for assistance, but that it must be judgment of a lawyer include, but are obtained from another source, with the not limited to, the preparation of wills assistance of and referral by the first and powers of attorney, advising per- office. sonnel with respect to legal rights and (c) Nonlegal advice. The legal assist- relationships, negotiating contracts, ance officer, while giving legal advice, and other matters requiring an edu- may also determine that the client cated ability to relate the general body needs or desires advice on related and philosophy of law to a specified nonlegal matters. The legal assistance legal problem of a client. Guidance in officer should provide legal advice this matter may be had from various only, or defer giving such advice, and official sources including the ethical refer the client to an appropriate per- considerations under the Code of Pro- son or agency for such nonlegal coun- fessional Responsibility of the Amer- seling. The legal assistance officer ican Bar Association. should establish and maintain a working relationship with those individuals [41 FR 26863, June 30, 1976, as amended at 47 FR 41561, Sept. 21, 1982; 65 FR 26748, May 9, who are qualified to provide nonlegal 2000] counseling services. (d) Proceedings involving the United § 727.7 Limitations on service pro- States. A legal assistance officer shall vided. not advise on, assist in, or become in- (a) Assistance in official military mat- volved with, individual interests op- ters. Legal Assistance duties are sepa- posed to or in conflict with the United rate and apart from the responsibilities States without the specific approval of of a trial counsel, defense counsel, or the Judge Advocate General. other officer involved in the processing (e) Telephone inquiries. In the absence of courts-martial, nonjudicial punish- of unusual or compelling cir- ment, administrative boards or pro- cumstances, legal advice should not be ceedings, investigations, or other offi- given over the telephone. This does not cial military matters. Frequently, a prohibit appropriate follow-up tele- service member accused or suspected of phone discussions between the legal as- an offense or conduct leading to an ad- sistance attorney and the client. ministrative proceeding will request [41 FR 26863, June 30, 1976, as amended at 65 advice from the legal assistance offi- FR 26749, May 9, 2000] cer. In such a case, the service member should be advised of the proper proce- § 727.8 Confidential and privileged dures for obtaining counsel or advice. character of service provided. This limitation does not prevent the All information and files pertaining assignment of the same officer to per- to the persons served will be treated as form the functions of a legal assistance confidential and privileged in the legal officer and the functions of a defense sense as outlined in the Code of Profes- counsel, counsel for respondent, or sional Responsibility, as opposed to counsel for a party. confidential in the military sense of se- (b) Domestic-relations cases. In domes- curity information. These privileged tic-relations cases, a legal assistance matters may not be disclosed to any- officer may provide advice concerning one by personnel rendering the service, the legal and practical implications of except upon the specific permission of divorce, legal separation, annulment, the person concerned, and disclosure custody, and paternity. Assistance and thereof may not be lawfully ordered by

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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 fices shall maintain the confidential part with respect to matters about nature of matters handled. which they consulted or advised said [42 FR 35957, July 13, 1977, as amended at 65 person in an official capacity. FR 26749, May 9, 2000] (b) Solicitation. Active duty military personnel, civilian employees of the § 727.9 Referrals to civilian lawyers. Navy and Marine Corps, and inactive (a) General. If it is determined that reservists, acting in an official capac- the legal assistance requested is be- ity, are prohibited from soliciting, or yond the scope of this part, or if no advising that any person entitled to available legal assistance officer is legal assistance under this part retain, qualified to give the assistance re- consult, or seek legal services from quested, the client should be referred themselves in their private capacities, to a civilian lawyer. When the client or from any attorney who is a partner does not know of a lawyer whom he or associate of a law firm of which they wishes to represent him, his case may are partners or associates, or from any be referred to an appropriate bar orga- attorney with whom they share office nization, lawyer referral service, legal spaces; Provided that nothing herein aid society, or other local organization shall prevent such person from being for assistance in obtaining reliable, referred to civilian counsel as provided competent, and sympathetic counsel, in § 727.9. or to a civilian lawyer designated by (c) Representation before civilian courts such organization. or agencies. No active duty Navy or Ma- (b) Fees charged by civilian lawyers. rine Corps judge advocate may appear Legal assistance clients being referred as counsel on behalf of any person enti- to a civilian lawyer should be advised tled to legal assistance, except as pro- that, even when the fee to be charged is vided in paragraph (a)(3) of § 727.6, or

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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 ices are made available to all eligible assigned for this reporting require- personnel within their areas. The ment. Judge Advocate General will collaborate with the American Bar Associa- [38 FR 6026, Mar. 6, 1973, as amended at 47 FR tion, the Federal Bar Association, and 41561, Sept. 21, 1982] other civilian bar organizations as he § 727.14 Files and records. may deem necessary or advisable in the accomplishment of the objectives and (a) Case files. The material contained purposes of the legal assistance pro- in legal assistance case files is nec- gram. essarily limited to private unofficial matters and such material is privileged [42 FR 35957, July 13, 1977] and protected under the attorney-cli- § 727.12 Communications. ent relationship. Each legal assistance office should therefore maintain only (a) Legal assistance officers are au- such files as are necessary for the prop- thorized to communicate directly with er operation of the office. the Judge Advocate General, with each (b) [Reserved] other, and with other appropriate organizations and persons concerning legal [38 FR 6026, Mar. 6, 1973, as amended at 43 FR assistance matters. 17355, Apr. 24, 1978] (b) The use of a legal assistance office letterhead within the Department § 727.15 Liberal construction of part. of the Navy is authorized as an excep- The provisions of this part are in- tion to the standard letterhead require- tended to be liberally construed to aid ments contained in Department of De- in accomplishing the mission of legal fense Instructions. Naval Legal Service assistance.

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PART 728—MEDICAL AND DENTAL Subpart F—Beneficiaries of Other Federal CARE FOR ELIGIBLE PERSONS AT Agencies NAVY MEDICAL DEPARTMENT 728.51 General provisions—the ‘‘Economy FACILITIES Act.’’ 728.52 Veterans Administration bene- Subpart A—General ficiaries (VAB). 728.53 Department of Labor, Office of Work- Sec. ers’ Compensation Programs (OWCP) 728.1 Mission of Navy Medical Department beneficiaries. facilities. 728.54 U.S. Public Health Service (USPHS), 728.2 Definitions. other than members of the uniformed 728.3 General restrictions and priorities. services. 728.4 Policies. 728.55 Department of Justice beneficiaries. 728.56 Treasury Department beneficiaries. Subpart B—Members of the Uniformed 728.57 Department of State and associated Services on Active Duty agencies. 728.58 Federal Aviation Agency (FAA) bene- 728.11 Eligible beneficiaries. ficiaries. 728.12 Extent of care. 728.59 Peace Corps beneficiaries. 728.13 Application for care. 728.60 Job Corps and Volunteers in Service 728.14 Pay patients. to America (VISTA) beneficiaries. 728.61 Medicare beneficiaries. Subpart C—Members of Reserve Compo- 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 728.25 Army and Air Force National Guard the reserve components who apply for ac- personnel. tive duty. 728.75 Applicants for cadetship at service Subpart D—Retired Members and academies and applicants for the Uni- Dependents of the Uniformed Services formed Services University of Health Sciences (USUHS). 728.31 Eligible beneficiaries and health ben- 728.76 Naval Home residents. efits authorized. 728.77 Secretarial designees. 728.32 Application for care. 728.78 American Red Cross representatives 728.33 Nonavailability statement (DD 1251). and their dependents. 728.34 Care beyond the capabilities of a 728.79 Employees of Federal contractors and naval MTF. subcontractors. 728.35 Coordination of benefits—third party 728.80 U.S. Government employees. payers. 728.81 Other civilians. 728.36 Pay patients. 728.82 Individuals whose military records are being considered for correction. Subpart E—Members of Foreign Military 728.83 Persons in military custody and non- Services and Their Dependents military Federal prisoners. 728.41 General provisions. Subpart H—Adjuncts to Medical Care 728.42 NATO. 728.43 Members of other foreign military 728.91 General. services and their dependents. 728.92 Policy. 728.44 Members of security assistance train- 728.93 Chart of adjuncts. ing programs, foreign military sales, and their ITO authorized dependents. Subpart I—Reservists—Continued Treat- 728.45 Civilian components (employees of ment, Return to Limited Duty, Separa- foreign military services) and their de- tion, or Retirement for Physical Dis- pendents. ability 728.46 Charges and collection. 728.101 General. 284

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728.102 Care from other than Federal matic reversion to non-active status sources. when the specified period of active duty is completed. It includes annual Subpart J—Initiating Collection Action on training, special tours, and the initial Pay Patients tour performed by enlistees without 728.111 General. prior military service. 728.112 Responsibilities. (c) CHAMPUS. Civilian Health and 728.113 Categories of pay patients. Medical Program of the Uniformed AUTHORITY: 5 U.S.C. 301 and 8101; 10 U.S.C. Services. 1071–1095, 1201–1221, 2104, 2107, 2109, 2110, 5031, (d) Catchment area. A specified geo- 5537, 6011, 6201–6203; 22 U.S.C. 1158, 2357, 2504, graphic area surrounding each Uni- 2505, 2507, 2522; 24 U.S.C. 15, 34, 35; 31 U.S.C. 1535; 42 U.S.C. 249, 253; and 32 CFR 700.1202. formed Services Medical Treatment Facility (USMTF) or designated Uni- SOURCE: 52 FR 33718, Sept. 4, 1987, unless formed Services Treatment Facility otherwise noted. (USTF). In the United States, catchment areas are defined by zip Subpart A—General 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 ambulatory care. Zip codes designating The primary mission of Navy Medical such areas in the United States are Department facilities is to provide specified in Volumes I and II of the medical and dental care for members of Military Health Services System the Navy and Marine Corps and for (MHSS) Catchment Area Directory. members of the other uniformed serv- Catchment areas for facilities outside ices who may be sick, injured, or dis- the United States are defined in Vol- abled. In addition, Navy Medical De- ume III of the MHSS Catchment Area partment facilities may provide med- Directory. These directories exclude ical and dental care to dependents of certain areas because of geographic military personnel, to members not on active duty, and to such other persons barriers. as authorized by law, U.S. Navy regula- (e) Chronic condition. Any medical or tions, and Department of Defense di- surgical condition marked by long du- rectives. These authorizations also pro- ration or frequent recurrence—or like- vide that Navy Medical Department fa- ly to be so marked—which, in light of cilities may be called upon to furnish medical information available, will or- medical and dental care, under laws of dinarily resist efforts to eradicate it humanity or principles of international completely; a condition which needs courtesy, to civilians and to other per- health benefits to achieve or maintain sons not otherwise entitled to medical stability that can be provided safely and dental care. only by, or under the supervision of, physicians, nurses, or persons author- § 728.2 Definitions. ized by physicians. Unless otherwise qualified in this (f) Civilian employee. Under 5 U.S.C. part, the following terms, when used 2105, a nonmilitary individual (1) ap- throughout, are defined as follows: pointed in the civil service, (2) engaged (a) Active duty. Full-time duty in the in the performance of a Federal func- active military service of the United tion, or (3) engaged in the performance States. This includes full-time training of his or her duties while subject to the duty; annual training duty; and attend- supervision of The President, a Member ance, while in the active military serv- or Members of Congress, or the Con- ice, at a school designated as a service gress, a member of a uniformed service, school by law or by the Secretary of an individual who is an employee under the military department concerned. It 5 U.S.C. 2105, the head of a Government does not include full-time National controlled corporation, or an adjutant Guard duty. general designated by the Secretary (b) Active duty for training. A tour of concerned under section 709c of title 32. active duty for reserves for training Included are justices and judges of the under orders that provide for auto- United States, appointed and engaging

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in the performance of duties per 5 (2) Inpatient and outpatient services. (i) U.S.C. 2104. Wyman Park Health System, Inc., 3100 (g) Cooperative care. Medical services Wyman Park Drive, Baltimore, MD and supplies for which CHAMPUS will 21211, telephone (301) 338–3693. share in the cost under circumstances (ii) Alston-Brighton Aid and Health specified in § 728.4(z), even though the Group, Inc., Brighton Marine Public patient remains under the primary Health Center, 77 Warren Street, Bos- control of a USMTF. ton, MA 02135, telephone (617) 782–3400. (h) Cooperative care coordinator. Des- (iii) Bayley Seton Hospital, Bay ignated individual in a CHAMPUS con- Street and Vanderbilt Avenue, Staten tractor’s office who serves as the point Island, NY 10304, telephone (718) 390– of contact for health benefits advisors 5547 or 6007. on all matters related to supplemental- (iv) Pacific Medical Center, 1200 12th cooperative care or services provided Avenue South, Seattle, WA 98144, tele- or ordered for CHAMPUS-eligible bene- phone (206) 326–4100. ficiaries by USMTF providers. (3) Outpatient services only. (i) Coastal (i) Dental care. Treatment which will Health Service, 331 Veranda Street, prevent or remedy diseases, disabil- Portland, ME 04103, telephone (207) 774– ities, and injuries to the teeth, jaws, 5805. and related structures and thereby con- (ii) Lutheran Medical Center, Down- tribute to maintenance or restoration town Health Care Services, 1313 Supe- of the dental health of an individual. rior Avenue, Cleveland, OH 44113, tele- (j) Dependent. A spouse, an phone (216) 363–2065. unremarried widow or widower, a child, (l) Disability retirement or separation. or a parent who bears that legal rela- Temporary or permanent retirement or tionship to his or her sponsor. For the separation for physical disability as purpose of rendering care under title provided in title 10, U.S.C., 1201–1221. 10, U.S.C., chapter 55, this category (m) Elective care. Medical, surgical, or may also include an unremarried dental care desired or requested by the former spouse. However, each bene- individual or recommended by the phy- ficiary must also meet the eligibility sician or dentist which, in the opinion criteria in § 728.31(b) and § 728.31(c). of other cognizant professional author- (k) Designated USTFs. The following ity, can be performed at another place former U.S. Public Health Service or time without jeopardizing life, limb, (USPHS) facilities operate as ‘‘des- health, or well-being of the patient, ignated USTFs’’ for the purpose of ren- e.g., surgery for cosmetic purposes and dering medical and dental care to ac- nonessential dental prosthetic appli- tive duty members and to all ances. CHAMPUS-eligible individuals. (n) Emergency care. Medical treat- (1) Sisters of Charity of the Incarnate ment of patients with severe, life- Word Health Care System, 6400 threatening, or potentially disabling Lawndale, Houston, TX 77058 (713) 928– conditions that require immediate 2931 operates the following facilities: intervention to prevent undue suffering (i) St. John Hospital, 2050 Space Park or loss of life or limb and dental treat- Drive, Nassau Bay, TX 77058, telephone ment of painful or acute conditions. (713) 333–5503. Inpatient and outpatient (o) Health benefits advisors (HBA). services. Designated individuals at naval facili- (ii) St. Mary’s Hospital Outpatient ties who are responsible for advising Clinic, 404 St. Mary’s Boulevard, Gal- and assisting beneficiaries covered in veston, TX 77550, telephone (409) 763– this part concerning medica1 and den- 5301. Outpatient services only. tal benefits in uniformed services fa- (iii) St. Joseph Hospital Ambulatory cilities and under CHAMPUS. They Care Center, 1919 La Branch, Houston, also provide information regarding TX 77002, telephone (713) 757–1000. Out- Veterans’ Administration, Medicare, patient services only. MEDICAID, and such other local (iv) St. Mary’s Hospital Ambulatory health programs known to be available Care Center, 3600 Gates Boulevard, to beneficiaries (see § 728.4(n)). Port Arthur, TX 77640 (409) 985–7431. (p) Hospitalization. Inpatient care in a Outpatient services only. medical treatment facility.

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(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 erate amount of treatment on an out- and chemoprophylaxis; education and patient basis, may be considered as training related to occupational having attained maximum hospital health; and other services provided to benefit. avoid lost time or to improve effective- (t) Medical care. Treatment required ness of employees. The latter will in- to maintain or restore the health of an clude the furnishing of emergency individual. Medical care may include, treatment of illnesses or injuries oc- but is not limited to, the furnishing of curring at work. Furnish such health inpatient treatment, outpatient treat- services to both active duty military ment, nursing service, medical exami- personnel and naval civilian employees nations, immunizations, drugs, subsist- per current directives. ence, transportation, and other ad- (aa) Retired member. A member or juncts such as prosthetic devices, spec- former member of a uniformed service tacles, hearing aids, orthopedic foot- who is entitled to retired or retainer wear, and other medically indicated pay, or equivalent pay, as a result of appliances or services. service in a uniformed service. This in- (u) Medically inappropriate. A situa- cludes a member or former member tion arising when denial of a Nonavail- who is: (1) Retired for length of service; ability Statement could result in sig- (2) permanently or temporarily retired nificant risk to the health of a patient for physical disability; (3) on the emer- or significant limitation to the pa- gency officers’ retired list and is enti- tient’s reasonable access to needed tled to retired pay for physical dis- health care. ability; or (4) otherwise in receipt of re- (v) Medically necessary. The level of tired pay under chapter 67 of title 10. services and supplies (i.e., frequency, (bb) Routine care. Medica1 and dental extent, and kinds) adequate for the di- care necessary to maintain health or agnosis and treatment of illness or in- dental functions other than care of an jury, including maternity care. Medi- emergency or elective nature. cally necessary, includes the concept of (cc) Supplemental care or services. appropriate medical care. When medical or dental management is

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retained by a naval MTF and required fessional staff and the availability of care is not available at the facility re- space and facilities. taining management, any additional (2) Hospitalization and outpatient material, professional diagnostic or services may be provided outside the consultative services, or other personal continental limits of the United States services ordered by qualified uniformed and in Alaska to officers and employ- service providers, and obtained for the ees of any department or agency of the care of that patient are supplemental. Federal Government, to employees of a See § 728.12 concerning the management contractor with the United States or of active duty member patients. the contractor’s subcontractor, to ac- (dd) Uniformed services. The Navy, companying dependents of such per- Marine Corps, Air Force, Army, Coast sons, and in emergencies to such other Guard, Commissioned Corps of the Pub- persons as the Secretary of the Navy lic Health Service, and the Commis- may prescribe: Provided, such services sioned Corps of the National Oceanic are not otherwise available in reason- and Atmospheric Administration. ably accessible and appropriate non- (ee) USMTF. Uniformed services med- Federal facilities. Hospitalization of ical treatment facility. such individuals in a naval MTF is lim- (ff) Visit, outpatient. Appearance by ited to the treatment of acute medical an eligible beneficiary at a separate, and surgical conditions, exclusive of organized clinic or specialty service nervous, mental, or contagious dis- for: Examination, diagnosis, treat- eases, or those requiring domiciliary ment, evaluation, consultation, coun- care. Routine dental care, other than seling, or medical advice; or treatment dental prosthesis or orthodontia, may of an eligible beneficiary in quarters; be rendered on a space available basis and a signed and dated entry is made in outside the continental limits of the the patient’s health record. Specifi- United States and in Alaska, Provided, cally excluded are personnel in an in- such services are not otherwise avail- patient status at the time of such a able in reasonably accessible and ap- visit. propriate non-Federal facilities. (b) Priorities. When care cannot be § 728.3 General restrictions and prior- rendered to all eligible beneficiaries, ities. the priorities in the following chart (a) Restrictions. (1) Naval MTFs pro- will prevail. Make no distinction as to vide care to all eligible beneficiaries the sponsoring uniformed service when subject to the capabilities of the pro- providing care or deciding priorities.

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 subpart 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.

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§ 728.4 Policies. or in puerto Rico may grant convales- (a) Admissions to closed psychiatric cent leave to active duty naval pa- wards. Admit patients to closed psy- tients, with or without reference to a chiatric wards only when they have a medical board, physical evaluation psychiatric or emotional disorder board, or higher authority provided which renders them dangerous to the: themselves or others, or when a period (i) Convalescent leave is being grant- of careful closed psychiatric observa- ed subsequent to a period of hos- tion is necessary to determine whether pitalization. such a condition exists. When a patient (ii) Member is not awaiting discipli- is admitted to a closed psychiatric nary action or separation from the ward, the reason for admission must be service for medical or administrative clearly stated in the patient’s clinical reasons. record by the physician admitting the (iii) Medical officer in charge: patient to the ward. These same poli- (A) Considers the convalescent leave cies apply equally in those instances beneficial to the patient’s health. when it becomes necessary to place a (B) Certifies that the patient is not patient under constant surveillance fit for duty, will not need hospital while in an open ward. treatment during the contemplated (b) Absence from the sick list. See convalescent leave period, and that § 728.4 (d), (x), and (y). such leave will not delay final disposi- (c) Charges and collection. Charges for tion of the patient. services rendered vary and are set by (3) When considered necessary by the the Office of the Assistant Secretary of attending physician and approved on Defense (Comptroller) and published in an individual basis by the commander a yearly NAVMEDCOMNOTE 6320, of the respective geographic regional (Cost elements of medical, dental, sub- medical command, convalescent leave sistence rates, and hospitalization in excess of 30 days may be granted. bills). Billing and collection actions The authority to grant convalescent also vary according to entitlement or leave in excess of 30 days may not be eligibility and are governed by the pro- redelegated to hospital commanding visions of NAVMED P-5020, Resource officers. Member’s permanent com- Management Handbook. See subpart J mand must be notified of such exten- on the initiation of collection action sions (see MILPERSMAN 3020360). on pay patients. (d) Convalescent leave. Convalescent (4) Exercise care in granting con- leave, a period of authorized absence of valescent leave to limit the duration of active duty members under medical such leave to that which is essential in care when such persons are not yet fit relation to diagnosis, prognosis, esti- for duty, may be granted by a mem- mated duration of treatment, and pa- ber’s commanding officer (CO) or the tient’s probable final disposition. hospital’s CO per the following: (5) Upon return from convalescent (1) Unless otherwise indicated, grant leave; such leave only when recommended by (i) Forward one copy of original or- COMNAVMEDCOM through action ders of officers, bearing all endorse- taken upon a report by a medical ments, to the Commander, Naval Mili- board, or the recommended findings of tary Personnel Command a physical evaluation board or higher (COMNAVMILPERSCOM) (NMPC–4) or authority. the Commandant of the Marine Corps (2) Member’s commanding officer (CMC), as appropriate. (upon advice of attending physician); (ii) Make an entry on the administra- commanding officers of Navy, Army, or tive remarks page (page 13 for Navy Air Force medical facilities; com- personnel) of the service records of en- manders of regional medical commands listed personnel indicating that con- for persons hospitalized in designated valescent leave was granted and the USTFs or in civilian facilities within dates of departure and return. their respective areas of authority; and (6) lf considered beneficial to the pa- managers of Veterans Administration tient’s health, commanding officers of hospitals within the 50 United States hospitals may grant convalescent leave

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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 tial for jeopardy to physical or mental of care (i.e., transfer to another health of an individual. USMTF, a USTF, or other Federal (2) Commanding officers will mon- source via the aeromedical evacuation itor, control, and assure compliance system, if appropriate) and attendant with the following cosmetic surgery costs, if applicable, have been fully ex- policy: plained to patient or responsible fam- (i) Certain cosmetic procedures are a ily member. Counselors may arrange necessary part of training and reten- for counseling by other appropriate tion of skills to meet the requirements sources when the patient is or may be of certification and recertification. eligible for VA, Medicare, MEDICAID, (ii) Insofar as they meet minimum etc. benefits. With the individual’s per- requirements and serve to improve the mission, counselors may also contact skills and techniques needed for recon- State programs, local health organiza- structive surgery, the following cos- tions, or health foundations to deter- metic procedures may be performed as mine if care is available for the condi- low priority surgery on active duty tion upon which disengagement is members only when time and space are based. After the disengagement deci- available. sion is made, the patient to be dis- (A) Cosmetic facial rhytidectomies engaged or the responsible family (face lifts) will be a part of all training member should be advised to return to programs required by certifying the naval MTF for any care required boards. subsequent to receiving the care that (B) Cosmetic augmentation necessitated disengagement. mammaplasties will be done only by (2) CHAMPUS-eligible individuals. (i) properly credentialed surgeons and Issue a Nonavailability Statement (DD residents within surgical training pro- 1251) per § 728.33, when appropriate, to grams to meet requirements of certi- patients released to civilian sources for fying boards. total care (disengaged) under (f) Cross-utilization of uniformed serv- CHAMPUS. CHAMPUS-eligible pa- ices facilities. To provide effective cross- tients disengaged for total care, who do utilization of medical and dental facili- not otherwise require a DD 1251 (re- ties of the uniformed services, eligible leased for outpatient care or those re- persons, regardless of service affili- leased whose residence is outside the ation, will be given equal opportunity inpatient catchment area of all for health benefits. Catchment areas USMTFs and USTFs) will be given the have been established by the Depart- original of a properly completed DD ment of Defense for each USMTF (see 2161, Referral For Civilian Medical § 728.2(d)). Eligible beneficiaries resid- Care, which clearly indicates that the ing within such a catchment area are patient is released for total care under expected to use that inpatient facility CHAMPUS. CHAMPUS-eligible bene- for care. Make provisions to assure ficiaries will be disengaged for services that: under CHAMPUS when: (1) Eligible beneficiaries residing in a (A) Required services are beyond catchment area served by a USMTF your capability and these services cannot of the sponsor’s own service may not be appropriately provided through

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one of the alternatives listed in ment from civilian sources using sup- § 728.4(z), or plemental care funding. (B) You cannot effectively provide re- (iii) Counseling. The initial step in quired services or manage the overall the disengagement process is appro- course of care even if augmented by priate counseling and documentation. services procured from other Govern- In an emergency, or when the indi- ment or civilian sources using naval vidual cannot be appropriately coun- MTF operation and maintenance funds seled prior to leaving the MTF, estab- as authorized in subpart § 728.4(z). lish procedures to ensure counseling (ii) When a decision is made to dis- and documentation are accomplished engage a CHAMPUS-eligible indi- during the next working day. Such vidual, commanding officers (CO) or of- ‘‘follow-up’’ counseling may be in per- ficers-in-charge (OIC) are responsible son or via a witnessed telephone con- for assuring that counseling and docu- versation. In either instance, the coun- mentation of counseling are appro- selor will document counseling on a priately accomplished. Complete a NAVMED 6320/30, Disengagement for NAVMED 6320/30. Disengagement for Civilian Medical Care. The disengage- Civilian Medical Care, to document ment decision making authority must that all appropriate disengagement assure the accomplishment of coun- procedures have been accomplished. seling by personally initiating this (iii) After obtaining the signature of service or by referring the patient or the patient or responsible family mem- responsible family member to the HBA ber, the counselor will file a copy of for counseling. As a minimum, coun- the DD 2161 and the original of the seling will consist of: NAVMED 6320/30 in the patient’s (A) Explaining that the patient is Health Record. being disengaged from treatment at (3) Patients other than active duty or the facility and the reason therefor. CHAMPUS-eligible individuals—(i) Cat- Assure that the individual understands egories of patients. The following are the meaning of ‘‘disengagement’’ by ex- categories of individuals who also may plaining that the MTF is unable to pro- be disengaged: vide for the patient’s present needs and must therefore relinquish medical (A) Medicare-eligible individuals. management of the patient to a health (B) MEDICAID-eligible individuals. care provider of the individual’s choice. (C) Civilians (U.S. and foreign) ad- (B) Assuring the individual that the mitted or treated as civilian humani- disengagement action is taken to pro- tarians. vide for the patient’s immediate med- (D) Secretarial designees. ical needs. Also assure that the indi- (E) All other individuals, with or vidual understands that the disengage- without private insurance, who are not ment is not indicative of whether care eligible for care at the expense of the is or will be available in the MTF for Government. other aspects of past, current, or future (ii) Disengagement decision. Disengage medical conditions. such individuals when: (C) Explaining Medicare, MEDICAID, (A) Required services are beyond the or other known programs as they re- capability of the MTF, and services late to the particular circumstance of necessary for continued treatment in the patient, including cost-sharing, the MTF cannot be appropriately pro- deductibles, allowable charges, partici- vided by another USMTF, a USTF, or pating and authorized providers, physi- another Federal source. (Explore alter- cians accepting assignment, claim fil- native sources, for individuals eligible ing procedures, etc. Explain that once for care from these sources, before disengagement is accomplished, the making the disengagement decision.) Navy, is not responsible for any costs (B) The MTF cannot, within the fa- for care received from a health care cility’s capability, effectively provide provider of the patient’s or responsible required care or manage the overall family member’s choice. course of treatment even if augmented (iv) Documentation. Commanding offi- by services procured from other Gov- cers are responsible for ensuring that ernment sources or through procure- proper documentation procedures are

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started and that providers and coun- only during the period of the emer- selors under their commands are ap- gency. Initiate action to effect appro- prised of their individual responsibil- priate disposition of such patients as ities for counseling and documenting soon as the emergency period ends. each disengagement. Failure to prop- (j) Evaluation after admission. Evalu- erly counsel and document counseling ate each patient as soon as possible may result in the naval MTF having to after admission and continue reevalua- absorb the cost of the entire episode of tion until disposition is made. Antici- care. Document counseling on a pate each patient’s probable type and NAVMED 6320/30. Disengagement for date of disposition. Necessary proc- Civilian Medical Care. Completion of essing by the various medical and ad- all items on the form assures docu- ministrative entities will take place mentation and written acknowledge- concurrently with treatment of the pa- ment of appropriate disengagement and tient. Make the medical disposition de- counseling. If the patient or respon- cision as early as possible for U.S. mili- sible family member refuses to ac- tary patients inasmuch as immediate knowledge receipt of counseling by transfer to a specialized VA center or signing the form, state this fact on the to a VA spinal cord injury center may bottom of the form and have it wit- be in their best interest (see nessed by an officer. Give the patient NAVMEDCOMINST 6320.1.2). Make dis- or responsible family member a copy position decisions for military per- and immediately file the original in sonnel of NATO nations in conform- the patient’s Health Record. ance with § 728.42(d). (4) Active duty members. When an ac- (k) Extent of care. Subject to the re- tive duty member seeks care at a strictions and priorities in § 728.3, eligi- USMTF, that USMTF retains some re- ble persons will be provided medical sponsibility (e.g., notification, medical and dental care to the extent author- cognizance, supplemental care, etc.) for ized, required, and available. When an that member even when the member individual is accepted for care, all care must be transferred to another facility and adjuncts thereto, such as non- for care. Therefore, relinquishment of standard supplies, as determined by the total management of an active duty CO to be necessary, will be provided member (disengagement) cannot be ac- from resources available to the CO un- complished. less specifically prohibited elsewhere (h) Domiciliary/custodial care. The in this part. When a patient has been type of care designed essentially to as- accepted and required care is beyond sist an individual in meeting the nor- the capability of the accepting MTF, mal activities of daily living, i.e., serv- the CO thereof will arrange for the re- ices which constitute personal care quired care by one of the means shown such as help in walking and getting in below. The method of choice will be or out of bed, help in bathing, dressing, based upon professional considerations feeding, preparation of special diets, and travel economy. and supervision over medications (1) Transfer the patient per which can usually be self-administered § 728.4(bb). and which does not entail or require (2) Procure from civilian sources the the continuing attention of trained necessary material or professional per- medical or paramedical personnel. The sonal services required for the patient’s essential characteristics to be consid- proper care and treatment. ered are the level of care and medical (3) Care authorized in § 728.4(k)(2) will supervision that the patient requires, normally be accomplished in the naval rather than such factors as diagnosis, MTF. However, when such action is not type of condition, or the degree of func- feasible, supplementation may be ob- tional limitation. Such care will not be tained outside the facility. Patients provided in naval MTFs except when may be sent to other Federal or civil- required for active duty members of ian facilities for specific treatment or the uniformed services. services under § 728.4(k)(3) provided they (i) Emergency care. Treat patients au- remain under medical management of thorized only emergency care and the CO of the sending facility during those admitted as civilian emergencies the entire period of care.

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(l) Family planning services. Provide ties, Medicare, MEDICAID, and other family planning services following the health programs. provisions of SECNAVINST 6300.2A. (iii) Assure that when a referral or (m) Grouping of patients. Group hos- disengagement is required, patients or pitalized patients according to their re- responsible family members are: quirements for housing, medical, or (A) Fully informed that such action dental care. Provide gender identified is taken to provide for their immediate quarters, facilities, and professional su- medical or dental requirements and pervision on that basis when appro- that the disengagement or referral has priate. Individuals who must be re- no bearing on whether care may be tained under limited medical super- available in the naval MTF for other vision (medical hold) solely for admin- aspects of current or other future med- istrative reasons or for medical condi- ical conditions. tions which can be treated on a clinic (B) Provided the services and coun- basis will be provided quarters and seling outlined in § 728.4(n)(2) or messing facilities, where practicable, § 728.3(g)(3)(ii), as appropriate, prior to separately from those hospitalized. their departure from the facility when Provide medical care for such patients such beneficiaries are referred or dis- on a periodic clinic appointment basis engaged because care required is be- (see § 728.4(p) for handling enlisted con- yond the naval MTF’s capability. In an valescent patients). Make maximum emergency, or when the patient or use of administrative versus medical sponsor cannot be seen by the HBA personnel in the supervision of such pa- prior to leaving, provide these benefits tients. as soon thereafter as possible. (n) Health benefits advising—(1) Gen- (2) Counseling and assisting eral. A Health Benefits Advising pro- CHAMPUS-eligible individuals. HBAs, as gram must be started at all shore com- a minimum, will: mands having one or more medical offi- (i) Explain alternatives available to cers. While health benefits advisors are the patient. not required aboard every ship with a (ii) If appropriate, explain CHAMPUS medical officer, the medical depart- as it relates to the particular cir- ment representative can usually pro- cumstance, including the cost-sharing vide services to personnel requiring provisions applicable to the patient, al- help. The number of health benefits ad- lowable charges, provider participa- visors (HBAs) of a command will be tion, and claim filing procedures. Fully commensurate with counseling and as- inform the patient or responsible fam- sistance requirements. The program ily member that when a patient is dis- provides health benefits information engaged for care under CHAMPUS or and counseling to beneficiaries of the when cooperative care is to be consid- Uniformed Services Health Benefits ered for payment under the provisions Program (USHBP) and to others who of § 728.4(z) (5) and (6), the naval MTF is may or may not qualify for care in not responsible for monetary amounts USMTFs. Office location of HBAs, their above the CHAMPUS-determined al- names, and telephone numbers will be lowable charge or for charges widely publicized locally. If additional CHAMPUS does not allow. help is required, contact MEDCOM–333 (iii) Explain why the naval MTF is on AUTOVON 294–1127 or commercial paying for the supplemental care, if ap- (202) 653–1127. In addition to the duties propriate (see § 728.4(z) (3) and (4)), and described in § 728.4(n)(2), HBAs will: how the bill will be handled. Then: (i) Maintain a depository of up-to- (A) Complete a DD 2161, Referral For date officially supplied health benefits Civilian Medical Care, marking the ap- information for availability to all propriate source of payment with the beneficiaries. concurrence of the naval MTF com- (ii) Provide information and guidance manding officer or CO’s designee. to beneficiaries and generally support (B) If referred for a specified proce- the medical and dental staff by pro- dure with a consultation report to be viding help to eligible beneficiaries returned to the naval MTF retaining seeking or obtaining services from medical management, annotate the DD USMTFs, civilian facilities, VA facili- 2161 in the consultation report section

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to state this requirement. Advise pa- and criticism, especially when emer- tient or responsible family member to gency hospitalization has resulted. Ac- arrange for a completed copy of the DD cordingly, naval MTFs will effect pro- 2161 to be returned to the naval MTF cedures to make notifications required for payment, if appropriate, and inclu- in § 728.4(q) (2), (3), and (4) upon admission in patient’s medical record. sion or diagnosis of individuals speci- (iv) Brief patient or responsible fam- fied. The provisions of § 728.4(q) supple- ily member on the use of the DD 2161 in ment articles 1810520 and 4210100 of the USMTF payment procedures and Naval Military Personnel Manual and CHAMPUS claims processing, as appro- chapter 1 of Marine Corps Order priate. Provide sufficient copies of DD P3040.4B, Marine Corps Casualty Proce- 2161 and explain that CHAMPUS con- dures Manual; they do not supersede tractors will return claims submitted them. without a required DD 2161. Obtain sig- (1) Privacy Act. The right to privacy nature of patient or responsible family of individuals for whom hospitalization member on the form. reports and other notifications are (v) Arrange for counseling from ap- made will be safeguarded as required propriate sources when the patient is by the Privacy Act, implemented in eligible for VA, Medicare, or MED- the Department of the Navy by ICAID benefits. SECNAVINST 5211.5C, U.S. Navy Regu- (vi) Serve as liaison between civilian lations, the Manual of the Judge Advo- providers and naval MTF on adminis- cate General, the Marine Corps Cas- trative matters related to the referral ualty Procedures Manual, and the Man- and disengagement process. ual of the Medical Department. (vii) Serve as liaison between naval (2) Active duty flag or general officers MTF and cooperative care coordinators and retired Marine Corps general officers. on matters relating to care provided or Upon admission of subject officers, recommended by naval MTF providers, make telephonic contact with as appropriate. MEDCOM–33 on AUTOVON 294–1179 or (viii) Explain why the patient is commercial (202) 653–1179 (after duty being disengaged and, per § 728.4(g)(2), hours, contact the command duty offi- provide a DD 1251, Nonavailability cer on AUTOVON 294–1327 or commer- Statement, or DD 2161, Referral For Ci- cial (202) 653–1327) to provide the fol- vilian Medical Care, as appropriate. lowing information: (o) Immunizations. Administer immu- (i) Initial. Include in the initial re- nizations per BUMED INST 6230.1H. port: (p) Medical holding companies. Medical (A) Officer’s name, grade, social secu- holding companies (MHC) have been es- rity number, and designator. tablished at certain activities to facilitate handling of enlisted convalescent (B) Duty assignment in ship or sta- patients whose medical conditions are tion, or other status. such that, although they cannot be re- (C) Date of admission. turned to full duty, they can perform (D) Present condition, stating if seri- light duty ashore commensurate with ous or very serious. their condition while completing their (E) Diagnosis, prognosis, and esti- medical care on an outpatient basis. mated period of hospitalization. To Where feasible, process such patients prevent possible invasion of privacy, for transfer. report the diagnosis only in Inter- (q) Notifications. The interests of the national Classification of Diseases—9th Navy, Marine Corps, and DOD have Edition (ICD–9–CM) code designator. been adversely affected by past proce- (ii) Progress reports. Call frequency dures which emphasized making notifi- and content will be at the discretion of cations only when an active duty mem- the commanding officer. However, ber’s condition was classed as either se- promptly report changes in condition riously ill or injured or classed as very or status. seriously ill or injured. However, even (iii) Termination report. Make a termi- temporary disabilities which preclude nation of hospitalization report to pro- communication with the next of kin vide appropriate details for informa- have generated understandable concern tional purposes.

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(iv) Additional commands to apprise. should develop a local form for such pa- The geographic naval medical region tients to sign attesting their desire or serving the hospital and, if different, refusal to have their NOK notified). the one serving the officer’s command Once notification has been made, the will also be apprised of such admis- facility will make progress reports, at sions. least weekly, until the patient is again (3) Active duty members—(i) Notifica- able to communicate with the NOK. tion of member’s command. The com- (1) Navy personnel. Upon admission of manding officer of naval medical treat- Navy personnel, effect the following ment facilities has responsibility for notification procedures. notifying each member’s commanding (i) In the contiguous 48 states. Patient officer under the conditions listed administration department personnel below. Make COMNAVMILPERS COM will notify the NOK in person, by tele- or CMC, as appropriate, information phone, telegraph, or by other expedi- addressees on their respective per- tious means. Included are notifications sonnel: of the NOK upon arrival of all Navy pa- (A) Direct admissions. Upon direct ad- tients received in the medical air-evac- mission of an active duty member, uation system. with or without orders regardless of ex- (ii) Outside the contiguous 48 states. If pected length of stay. The patient ad- the next of kin has accompanied the ministration department (administra- patient on the tour of duty and is in tive watch officer after hours) is re- the immediate area, hospital personnel sponsible for preparation, per will notify the next of kin in person, by § 728.4(q)(4), and release of these mes- telephone, telegraph, or by other expe- sages. If the patient is attached to a ditious means. If the next of kin is lo- local command (CO’s determination), cated in the 48 contiguous United initial notification may be made tele- States, use telegraphic means to notify phonically. Record the name, grade or COMNAVMILPERSCOM who will pro- rate, and position of the person receiv- vide notification to the NOK. ing the call at the member’s command (2) Marine Corps personnel. When Ma- on the back of the NAVMED 6300/5, In- rine Corps personnel are admitted, ef- patient Admission/Disposition Record fect the following notification proce- and include the name and telephone dures. number of the MTF’s point of contact (i) In the contiguous 48 states. The as given to the patient’s command. commander of the unit or activity to (B) Change in medical condition. Upon which the casualty member is assigned becoming aware of any medical condi- is responsible for initiating notification, including pregnancy, which will tion procedures to the NOK of seriously now or in the foreseeable future result or very seriously ill or injured Marine in the loss of a member’s full duty Corps personnel. Patient administra- services in excess of 72 hours. Transmit tion department personnel will assure this information in a message, pre- that liaison is established with the ap- pared per § 728.4(q)(4), marked ‘‘Com- propriate command or activity when manding Officer’s Eyes Only.’’ such personnel are admitted. Patient (ii) Notification of next of kin (NOK)— administration personnel will notify (A) Admitted members. As part of the ad- the Marine’s command by telephone mission procedure, encourage all pa- and request that cognizance be as- tients to communicate expeditiously sumed for in-person initial notification and regularly with their NOK. When an of the NOK of Marine Corps patients active duty member’s incapacity admitted with an incapacity that makes timely personal communication makes personal and timely commu- impractical, i.e., fractures, burns, eye nication impractical and for those ar- pathology, psychiatric or emotional riving via the medical air-evacuation disorders, etc., MTF personnel will ini- system. If a member’s command is un- tiate the notification process. Do not known or cannot be contacted, inform start the process if the patient specifi- CMC (MHP–10) on AUTOVON 224–1787 cally declines such notification or it is or commercial (202) 694–1787. clear that the NOK already has knowl- (ii) Outside the contiguous 48 states. edge of the admission (commands Make casualty notification for Marine

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Corps personnel hospitalized in naval upon admission or diagnosis of active MTFs outside the contiguous 48 States duty members of other services. to the individual’s command. If the (D) Nonactive duty patients. At the command is unknown or not located in discretion of individual commanding close proximity to the MTF, notify officers, the provisions of § 728.4(q)(3)(ii) CMC (MHP–10). When initial notifica- on providing notification to the NOK tion to the individual’s command is may be extended to admissions or diag- made via message, make CMC (MHP– nosis of nonactive duty patients; e.g., 10) an information addressee. admission of dependents of members on (iii) In and outside the United States. In duty overseas. life-threatening situations, the Com- (4) Messages—(i) Content. Phrase con- mandant of the Marine Corps desires tents of messages (and telephonic noti- and encourages medical officers to fications) in lay terms and provide suf- communicate with the next of kin. In ficient details concerning the patient’s other circumstances, request that the condition, prognosis, and diagnosis. Marine Corps member communicate Messages will also contain the name with the NOK if able. If unable, the and telephone number of the facility’s medical officer should communicate point of contact. When appropriate for with the NOK after personal notifica- addressal, psychiatric and other sen- tion has been effected. sitive diagnoses will be related with (B) Terminally ill patients. As soon as discretion. When indicated, also in- a diagnosis is made and confirmed (on clude specific comment as to whether inpatients or outpatients) that a Navy the presence of the next of kin is medi- member is terminally ill, cally warranted. NOTE: In making noti- MILPERSMAN 4210100 requires notifi- fication to the NOK of patients diag- cation of the primary and secondary nosed as having Acquired Immune Defi- next of kin. Accomplish notification ciency Syndrome (AIDS) or Human Im- the same as for Navy members admit- munodeficiency Virus (HIV), use one of ted as seriously or very seriously ill or the symptoms of the disease as the di- injured, i.e., by priority message to the agnosis (e.g., pneumonia) rather than Commander, Naval Military Personnel ‘‘HIV’’, ‘‘AIDS’’, or the diagnostic code Command and to the Casualty Assist- for AIDS. ance Calls/Funeral Honors Support (ii) Information addressees. Make the Program Coordinator, as appropriate, commander of the geographic naval who has cognizance over the geo- medical region servicing the member’s graphical area in which the primary command and the one servicing the and secondary NOK resides (see hospital, if different, information ad- OPNAVINST 1770.1). Submit followup dressees on all messages. For Marine reports when appropriate. See Corps personnel, also include CMC MILPERSMAN 4210100 for further am- (MHP–10) and the appropriate Marine plification and for information address- Corps district headquarters as informa- ees. tion addressees, COMNAVMEDCOM (1) In the contiguous 48 states. Notifi- WASHINGTON DC requires informa- cation responsibility is assigned to the tion copies of messages only when a pa- USMTF making the diagnosis and to tient has been placed on the seriously the member’s duty station if diagnosed ill or injured or very seriously ill or in- in a civilian facility. jured list or diagnosed as terminally (2) Outside the contiguous 48 states. No- ill. tification responsibility is assigned to (r) Outpatient care. Whenever pos- the naval medical facility making the sible, perform diagnostic procedures diagnosis. When diagnosed in nonnaval and provide preoperative and post oper- facilities or aboard deployed naval ves- ative care, surgical care, convales- sels, notification responsibility belongs cence, and followup observations and to the Commander, Naval Military Per- treatment on an outpatient basis. sonnel Command. (s) Performance of duties while in an (C) Other uniformed services patients. inpatient status. U.S. military patients Establish liaison with other uniformed may be assigned duties in and around services to assure proper notification naval MTFs when such duties will be,

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in the judgement of the attending phy- measures, other than routine treat- sician, of a therapeutic value. Physical ment for minor or temporary disabil- condition, past training, and other ac- ities, will be asked to sign a completed quired skills must all be considered be- NAVMED 6100/4, Medical Board Certifi- fore assigning any patient a given task. cate Relative to Counseling on Refusal Do not assign patients duties which are of Surgery and/or Treatment, attesting not within their capabilities or which to the counseling. require more than a very brief period of (ii) The board will study all pertinent orientation. information, inquire into the merits of (t) Prolonged definitive medical care. the individual’s refusal to submit to Prolonged definitive medical care in treatment, and report the facts with naval MTFs will not be provided for appropriate recommendations. U.S. military patients who are unlikely (iii) As a general rule, refusal of to return to duty. The time at which a minor surgery should be considered un- patient should be processed for dis- reasonable in the absence of substan- ability separation must be determined tial contraindications. Refusal of on an individual basis, taking into con- major surgical operations may be rea- sideration the interests of the patient sonable or unreasonable, according to as well as those of the Government. A the circumstances, The age of the pa- long-term patient roster will be main- tient, previous unsuccessful operations, tained and updated at least once existing physical or mental contra- monthly to enable commanding offi- indications, and any special risks cers and other appropriate staff mem- should all be taken into consideration. bers to monitor the progress of all pa- (iv) Where surgical procedures are in- tients with 30 or more continuous days volved, the board’s report will contain of hospitalization. Include on the ros- answers to the following questions: ter basic patient identification data (A) Is surgical treatment required to (name, grade or rate, register number, relieve the incapacity and restore the ward or absent status, clinic service, individual to a duty status, and may it and whether assigned to a medical be expected to do so? holding company), projected disposi- (B) Is the proposed surgery an estab- tion (date, type, and profile), diagnosis, lished procedure that qualified and ex- and cumulative hospital days (present perienced surgeons ordinarily would facility and total). recommend and undertake? (u) Remediable physical defects of ac- (C) Considering the risks ordinarily tive duty members—(1) General. When a associated with surgical treatment, the medical evaluation reveals that a Navy patient’s age and general physical con- or Marine Corps patient on active duty dition, and the member’s reason for re- has developed a remediable defect fusing treatment, is the refusal reason- while on active duty, the patient will able or unreasonable? (Fear of surgery be offered the opportunity of operative or religious scruples may be consid- repair or other appropriate remediable ered, along with all the other evidence, treatment, if medically indicated. for whatever weight may appear appro- (2) Refusal of treatment. Per MANMED priate.) art. 18–15, when a member refuses to (v) If a member needing surgery is submit to recommended therapeutic mentally competent, do not perform measures for a remediable defect or surgery over the member’s protesta- condition which has interfered with the tion. member’s performance of duty and fol- (vi) In medical, dental, or diagnostic lowing prescribed therapy, the member situations, the board should show the is expected to be fit for full duty, the need and risk of the recommended pro- following procedures will apply: cedure(s). (i) Transfer the member to a naval (vii) If a medical board decides that a MTF for further evaluation and appear- diagnostic, medical, dental, or surgical ance before a medical board. After procedure is indicated, these findings counseling per MANMED art. 18–15, must be made known to the patient. any member of the naval service who The board’s report will show that the refuses to submit to recommended patient was afforded an opportunity to medical, surgical, dental, or diagnostic submit a written statement explaining

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the grounds for refusal. Forward any provisions. Procedures are delineated statement with the board’s report. Ad- in BUMEDINST 1910.2G and vise the patient that even if the dis- SECNAVINST 1910.4A. ability originally arose in line of duty, (3) Other uniformed services patients. its continuance may be attributable to When a patient of another service is the member’s unreasonable refusal to found to have a remediable physical de- cooperate in its correction; and that fect developed in the military service, the continuance of the disability refer the matter to the nearest head- might, therefore, result in the mem- quarters of the service concerned. ber’s separation without benefits. (v) Responsibilities of the commanding (viii) Also advise the patient that: officer. In connection with the provi- (A) Title 10 U.S.C. 1207 precludes dis- sions of this part, commanding officers position under chapter 61 of 10 U.S.C. if of naval MTFs will: such a member’s disability is due to in- (1) Determine which persons within tentional misconduct, willful neglect, the various categories authorized care or if it was incurred during a period of in a facility will receive treatment in, unauthorized absence. A member’s re- be admitted to, and be discharged from fusal to complete a recommended therapy regimen or diagnostic procedure that specific facility. may be interpreted as willful neglect. (2) Supervise care and treatment, in- (B) Benefits from the Veterans Ad- cluding the employment of recognized ministration will be dependent upon a professional procedures. finding that the disability was incurred (3) Provide each patient with the best in line of duty and is not due to the possible care in keeping with accepted member’s willful misconduct. professional standards and the assigned (ix) The Social Security Act contains primary mission of the facility. special provisions relating to benefits (4) Provide for counseling patients for ‘‘disabled’’ persons and certain pro- and naval MTF providers when care revisions relating to persons disabled ‘‘in quired is beyond the naval MTF’s capa- line of duty’’ during service in the bility. This includes: Armed Forces. In many instances per- (i) Establishing training programs to sons deemed to have ‘‘remediable’’ dis- acquaint naval MTF providers and orders have been held not ‘‘disabled’’ HBAs with the uniformed services’ re- within the meaning of that term as ferral for supplemental/cooperative used in the statute, and Federal courts care or services policy outlined in have upheld that interpretation. One § 728.4(z). who is deemed unreasonably to have (ii) Implementing control measures refused to undergo available surgical to ensure that: procedures may be deemed both ‘‘not (A) Providers requesting care under disabled’’ and to have incurred the con- the provisions § 728.4(z) are qualified to dition ‘‘not in the line of duty.’’ maintain physician case management (x) Forward the board’s report di- when required. rectly to the Central Physical Evalua- tion Board with a copy to MEDCOM–25 (B) Care requested under the supple- except in those instances when the con- mental/cooperative care criteria is vening authority desires referral of the medically necessary, legitimate, and medical board report for Departmental otherwise permissible under the terms review. of that part of the USHBP under which (xi) Per MANMED art. 18–15, a mem- it will be considered for payment. ber who refuses medical, dental, or sur- (C) Providers explain to patients the gical treatment for a condition that ex- reason for a referral and the type of re- isted prior to entry into the service ferral being made. (EPTE defect), not aggravated by a pe- (D) Attending physicians properly riod of active service but which inter- refer beneficiaries to the HBA for coun- feres with the performance of duties, seling and services per § 728.4(n). should be processed for reason of phys- (E) Uniform criteria are applied in ical disability, convenience to the Gov- determining cooperative care situa- ernment, or enlisted in error rather tions without consideration of rate, than under the refusal of treatment grade, or uniformed service affiliation.

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(F) All DD 2161’s are properly com- etc.) be considered before granting this pleted and approved by the com- privilege. manding officer or designee. (2) Naval MTF patients in a sub- (G) A copy of the completed DD 2161 sisting out status should not be con- is returned to the naval MTF for inclu- fused with those enlisted personnel in a sion in the medical record of the pa- rehabilitation program who are grant- tient. ed liberty and are drawing commuted (w) Sick call. A regularly scheduled rations, but are required to be present assembly of sick and injured military at the treating facility during normal personnel established to provide rou- working hours. These personnel are not tine medical care. Subsequent to exam- subsisting out and must have a bed as- ination, personnel medically unfit for signed at the naval MTF. duty will be admitted to an MTF or (3) Naval MTF patients who are replaced sick in quarters; personnel not quired to report for examinations or admitted or placed sick in quarters treatment more often than every 48 will be given such treatment as is hours should not be placed in a sub- deemed necessary. When excused from sisting out status. duty for medical reasons which do not (z) Supplemental/cooperative care or require hospitalization, military per- services—(1) General. When such serv- sonnel may be authorized to remain in ices as defined in § 728.2(cc) are ren- quarters, not to exceed 72 hours. dered to other than CHAMPUS-eligible (x) Sicklist—authorized absence from. individuals, the cost thereof is charge- Commanding officers of naval MTFs able to operation and maintenance may authorize absences of up to 72 funds available for operation of the fa- hours for dependents and retired per- cility requesting care or services. Co- sonnel without formal discharge from operative care applies to CHAMPUS-el- the sicklist. When absences are author- igible patients receiving inpatient or ized in excess of 24 hours, subsistence outpatient care in a USMTF who re- charges or dependent’s rate, as applica- quire care or services beyond the capable, for that period will not be collected and the number of reportable oc- bility of that USMTF. The following cupied bed days will be appropriately general principles apply to such reduced. Prior to authorizing such ab- CHAMPUS-eligible patients: sences, the attending physician will ad- (i) Cooperation of uniformed services vise patients of their physical limita- physicians. USMTF physicians are re- tions and of any necessary safety pre- quired to cooperate in providing cautions, and will annotate the clinical CHAMPUS contractors and record that patients have been so ad- OCHAMPUS additional medical infor- vised. For treatment under the Medical mation. SECNAVINST 5211.5C delin- Care Recovery Act, make reporting eates policies, conditions, and proce- consistent with § 728.4(aa). dures that govern safeguarding, using, (y) Subsisting out. A category in accessing, and disseminating personal which officer and enlisted patients on information kept in a system of the sicklist of a naval MTF may be records. Providing information to placed when their daily presence is not CHAMPUS contractors and required for treatment nor examina- OCHAMPUS will be governed thereby. tion, but who are not yet ready for re- (ii) Physician case management. Where turn to duty. As a general rule, pa- required by NAVMEDCOMINST 6320.18 tients placed in this category should (CHAMPUS Regulation; implementa- reside in the area of the facility and tion of), uniformed services physicians should be examined by the attending are required to provide case manage- physician at least weekly. Enlisted per- ment (oversight) as would an attending sonnel in a subsisting out status should or supervising civilian physician. be granted commuted rations. (iii) CHAMPUS-authorized providers. (1) Granting of subsisting out privi- CHAMPUS contractors are responsible leges is one of many disposition alter- for determining whether a civilian pro- natives; however, recommend that vider is CHAMPUS-authorized and for other avenues (medical holding com- providing such information, upon re- pany, convalescent leave, limited duty, quest, to USMTFs.

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(iv) Phychiatric or psychotherapeutic (ii) When the patient is a retired services. If psychiatric care is being ren- member or dependent, transfer per dered by a psychiatric or clinical social § 728.4(bb)(3) (i), (ii), (iii), or (iv), in that worker, a psychiatric nurse, or a mar- order. When the patient is a dependent riage and family counselor, and the of a member of a NATO nation, trans- uniformed services facility has made a fer per § 728.4(bb)(4) (i), (ii), or (iii), in determination that it does not have that order. the professional staff competent to pro- (iii) With the patient’s permission, vide required physician case manage- the naval MTF may contact State pro- ment, the patient may be (partially) grams, local health agencies, or health disengaged for the psychiatric or psy- foundations to determine if benefits chotherapeutic service, yet have the are available. remainder of required medical care (iv) Obtain such supplemental care or provided by the naval MTF. services as delineated in § 728.4(z)(4) (v) Forms and documentation. A DD from a civilian source using local oper- 2161, Referral For Civilian Medical ation and maintenance funds, or Care, will be provided to each patient (v) Obtain such cooperative care or who is to receive supplemental or coop- services as delineated in § 728.4(z)(6) erative care or services. When supple- from a civilian source under the terms mental care is required under the proof CHAMPUS. visions of § 728.4(z) (3) and (4), the provi- (3) Operation and maintenance funds. sions of § 728.4(z)(3)(iii) apply. When co- When local operation and maintenance operative care or services are required funds are to be used to obtain supple- under the provisions of § 728.4(z) (5) and mental care or services, the following (6), the provisions of § 728.4(z)(5)(iv) guidelines are applicable: apply. (i) Care or services must be legiti- (vi) Clarification of unusual cir- mate, medically necessary, and ordered cumstances. Commanding officers of by a qualified USMTF provider. naval MTFs will submit requests for (ii) The naval MTF must make the clarification of unusual circumstances necessary arrangements for obtaining to OCHAMPUS or CHAMPUS contrac- required care or services from a spe- tors via the Commander, Naval Med- cific source of care. ical Command (MEDCOM–33) for con- (iii) Upon approval of the naval MTF sideration. commanding officer or designee, pro- (2) Care beyond a naval MTF’s capa- vide the patient or sponsor with a prop- bility. When, either during initial eval- erly completed DD 2161, Referral For uation or during the course of treat- Civilian Medical Care. The DD 2161 will ment of CHAMPUS-eligible bene- be marked by the health benefits advi- ficiaries, required services are beyond sor or other designated individual to the capability of the naval MTF, the show the naval MTF as the source of commanding officer will arrange for payment. Forward a copy to the MTF’s the services from an alternate source contracting or supply officer who is the in the following order, subject to re- point of contact for coordinating obli- strictions specified. The provisions of gations with the comptroller and thus § 728.4(z)(2)(i) through (iii) must be fol- is responsible for assuring proper proc- lowed before either supplemental care, essing for payment. authorized in § 728.4(z)(4), is considered (iv) Authorize care on an inpatient or for payment from Navy Operations and outpatient basis for the minimum pe- Maintenance funds, or cooperative riod necessary for the civilian provider care, authorized in § 728.4(z)(6), is to be to perform the specific test, procedure, considered for payment under the treatment, or consultation requested. terms of CHAMPUS. Patients receiving inpatient services in (i) Obtain from another USMTF or civilian medical facilities will not be other Federal MTF the authorized care counted as an occupied bed in the naval necessary for continued treatment of MTF, but will be continued on the the patient within the naval MTF, naval MTF’s inpatient census. Con- when such action is medically feasible tinue to charge pay patients the and economically advantageous to the USMTF inpatient rate appropriate for Government. their patient category.

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(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. (i) All specialty consultations for the Subject to the availability of space, fa- purpose of establishing or confirming cilities, and capabilities of the staff, diagnoses or recommending a course of USMTFs may provide consultative and treatment. such other ancillary aid as required by (ii) All diagnostic tests, diagnostic the civilian provider selected by the examinations, and diagnostic proce- beneficiary. dures (including genetic tests and CAT (iv) Provide a properly completed DD scans), ordered by qualified USMTF 2161, Referral For Civilian Medical providers. Care, to patients who are referred (iii) Prescription drugs and medical (versus disengaged) to civilian sources supplies. under the terms of CHAMPUS for coop- (iv) Civilian ambulance service or- erative care. (A Nonavailability State- dered by USMTF personnel. ment (DD 1251) may also be required. (5) CHAMPUS funds. When payment Provide this form when required under is to be considered under the terms of § 728.33.) The DD 2161 will be marked by CHAMPUS for cooperative care, even the health benefits advisor, or other though the beneficiary remains under designated individual, to show naval MTF control, the following CHAMPUS as the source of payment guidelines are applicable: consideration. All such DD 2161’s must (i) Process charges for care under the be approved by the commanding officer terms of CHAMPUS. or designee. Give the patient sufficient (A) If the charge for a covered service copies to ensure a copy of the DD 2161 or supply is above the CHAMPUS-de- accompanies each CHAMPUS claim. termined reasonable charge, the direct Advise patients that CHAMPUS con- care system will not assume any liabil- tractors will return claims received ity on behalf of the patient where a ci- without the DD 2161. Also advise pa- vilian provider is concerned, although tients to arrange for return of a com- a USMTF physician recommended or pleted copy of the DD 2161 to the naval prescribed the service or supply. MTF for inclusion in their medical (B) Payment consideration for all record. care or services meeting cooperative (v) Such patients receiving inpatient care criteria will be under the terms of or outpatient care or services will pay CHAMPUS and payment for such care the patient’s share of the costs as spec- or services will not be made from naval ified under the terms of CHAMPUS for MTF funds. Conversely, any care or their beneficiary category. Patients re- services meeting naval MTF supple- ceiving inpatient services will not be mental care or services payment cri- continued on the naval MTF’s census teria will not be considered under the and will not be charged the USMTF in- terms of CHAMPUS. patient rate. (ii) Care must be legitimate and oth- (vi) Certain ancillary services au- erwise permissible under the terms of thorized under CHAMPUS require phy- CHAMPUS and must be ordered by a sician case management during the qualified USMTF provider. course of treatment. USMTF physi- (iii) Provide assistance to bene- cians will manage the provision of an- ficiaries referred or disengaged under cillary services by civilian providers CHAMPUS. Although USMTF per- when such services are obtained under sonnel are not authorized to refer bene- the terms of CHAMPUS. Examples in- ficiaries to a specific civilian provider clude physical therapy, private duty for care under CHAMPUS, health bene- (special) nursing, rental or lease/pur- fits advisors are authorized to contact chase of durable medical equipment,

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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 of care. USMTF physicians exercising an accident report, if available. Prior physician case management responsi- to requesting such a statement from a bility will maintain professional con- patient, the person preparing the front tact with civilian providers of care. side of NAVJAG 5890/12 will show the (6) Care and services authorized. Refer patient the Privacy Act statement CHAMPUS-eligible patients to civilian printed at the bottom of the form and sources for the following under the have the patient sign his or her name terms of CHAMPUS: beneath the statement. (i) Authorized nondiagnostic medical (2) Submission—(i) Naval patients. For services such as physical therapy, naval patients, submit the completed speech therapy, radiation therapy, and front side of the NAVJAG 5890/12 to the private duty (special) nursing. appropriate action JAG designee listed (ii) Preauthorized (by OCHAMPUS) in section 2401 of the JAG Manual at adjunctive dental care, including or- the following times: thodontia related to surgical correc- (A) Initial. Make an initial submis- tion of cleft palate. sion as soon as practicable after a pa- (iii) Durable medical equipment. tient is admitted for any period of in- (CHAMPUS payment will be considered patient care, or if it appears that more only if the equipment is not available than 7 outpatient treatments will be on a loan basis from the naval MTF.) furnished. This submission should not (iv) Prosthetic devices (limited ben- be delayed pending the accumulation efit), orthopedic braces and appliances. of all potential charges from the treat- (v) Optical devices (limited benefit). ing facility. This submission need not (vi) Civilian ambulance service to a be based upon an extensive investiga- USMTF when service is ordered by tion of the cause of the injury or dis- other than direct care personnel. ease, but it should include all known (vii) All CHAMPUS Program for the facts. Statements by the patient, po- Handicapped care. lice reports, and similar information (if (viii) Psychotherapeutic or psy- available), should be appended to the chiatric care. form. (ix) Except for those types of care or (B) Interim. Make an interim submis- services delineated in § 728.4(z)(4), all sion every 4 months after the initial other CHAMPUS authorized medical submission until the patient is trans- services not available in the naval ferred or released from the facility, or MTF (for example, neonatal intensive changed from an inpatient status to an care). outpatient status. (aa) Third party liability case. Per (C) Final. Make a final submission chapter 24, section 2403, JAG Manual, upon completion of treatment or upon use the following guidelines to com- transfer of the patient to another facil- plete and submit a NAVJAG 5890/12, ity. The facility to which the patient is Hospital and Medical Care, 3rd Party transferred should be noted on the Liability Case, when a third party may form. Report control symbol NAVJAG be liable for the injury or disease being 5890–1 is assigned to this report. treated: (ii) Nonnaval patients. When care is (1) Preparation. All naval MTFs will provided to personnel of another Fed- use the front of NAVJAG 5890/12 to re- eral agency or department, that agency port the value of medical care fur- or department generally will assert nished to any patient when (i) a third any claim in behalf of the United party may be legally liable for causing States. In such instances, submit the the injury or disease, or (ii) when a NAVJAG 5890/12’s (initial, interim, and

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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 (C) U.S. Coast Guard. Commandant time necessary to attain the mental or (G–K–2). U.S. Coast Guard, Washington, physical state required for return to DC 20593–0001. duty or separation from the service. (D) Department of Labor. The appro- When required care is not available at priate Office of Workers’ Compensation the facility providing area inpatient Programs (OWCP). care, transfer patients to the most (E) Veterans Administration. Director readily accessible USMTF or des- of the Veterans Administration hos- ignated USTF possessing the required pital responsible for medical care of capability. Transportation of the pa- the patient being provided treatment. tient and a medical attendant or at- (F) Department of Health and Human tendants, if required, is authorized at Services (DHHS). Regional attorney’s Government expense. Since the VA is office in the area were the incident oc- staffed and equipped to provide care in curred. the most expeditious manner, follow (3) Supplementary documents. An SF the administrative procedures outlined 502 should accompany the final submis- in NAVMEDCOMINST 6320.12 when: sion in all cases involving inpatient (i) A patient has received the max- care. Additionally, when Government imum benefit of hospitalization in a care exceeds $1,000, inpatient facilities naval MTF but requires a protracted should complete and submit the back period of nursing home type care. The side of NAVJAG 5890/12 to the action VA can provide this type care or ar- JAG designee. On this side of the form, range for it from a civilian source for the determination of ‘‘patient status’’ individuals so entitled. may be used on local hospital usage. (ii) Determined that there is or may (4) Health record entries. Retain copies be spinal cord injury necessitating im- of all NAVJAG 5890/12’s in the Health mediate medical and psychological at- Record of the patient. Immediately no- tention. tify action JAG designees when a pa- (iii) A patient has sustained an ap- tient receives additional treatment parently severe head injury or has been subsequent to the issuance of a final blinded necessitating immediate inter- NAVJAG 5890/12 if the subsequent vention beyond the capabilities of treatment is related to the condition naval MTFs. which gave rise to the claim. (iv) A determination has been made (5) No-fault insurance. When no-fault by the Secretary concerned that a insurance is or may be involved, the member on active duty has an alcohol naval legal service office at which the or drug dependency or drug abuse dis- JAG designee is located is responsible ability. for apprising the insurance carrier that (3) Retired members and dependents. the Federal payment for the benefits of When a retired member of a dependent this part is secondary to any no-fault requires care beyond the capabilities of insurance coverage available to the in- a facility and a transfer is necessary, jured individual. the commanding officer of that facility (6) Additional guidance. Chapter 24 of may: the JAG Manual and BUMEDINST (i) Arrange for transfer to another 5890.1A contain supplemental informa- USMTF or designated USTF located in tion. an overlapping inpatient catchment (bb) Transfer of patients—(1) General. area of the transferring facility if ei- Treat all patients at the lowest echelon ther has the required capability. equipped and staffed to provide nec- (ii) If the patient or sponsor agrees, essary care; however, when transfer to arrange for transfer to the nearest

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USMTF or designated USTF with re- and appropriate non-Federal facilities. quired capability, regardless of its lo- Hospitalization of such persons in a cation. naval MTF is further limited by 24 (iii) Arrange for transfer of retired U.S.C. 35 to the treatment of acute members to the Veterans Administra- medical and surgical conditions, exclu- tion MTF nearest the patient’s resi- sive of nervous, mental, or contagious dence. diseases, or those requiring domiciliary (iv) Provide aid in releasing the pa- care. tient to a civilian provider of the pa- (ii) Dental care. Section 35 of title 24 tient’s choice under the terms of Medi- provides for space available routine care, if the patient is entitled. Bene- dental care, other than dental pros- ficiaries entitled to Medicare, Part A, thesis and orthodontia, for the cat- because they are 65 years of age or egories of individuals enumerated in older or because of a disability or § 728.4(bb)(5)(i): Provided, that such chronic renal disease, lose CHAMPUS services are not otherwise available in eligibility but remain eligible for care in USMTFs and designated USTFs. reasonably accessible and appropriate (v) If the patient is authorized bene- non-Federal facilities. fits under CHAMPUS, disengage from (iii) Transfer. Accomplish transfer medical management and issue a Non- and subsequent treatment of individ- availability Statement (DD 1251) per uals in § 728.4(bb)(5)(i) per the provi- the provisions of § 728.33, for care under sions of law enumerated in § 728.4(bb)(5) CHAMPUS. This step should only be (i) and (ii). taken after due consideration is made (cc) Verification of patient eligibility— of the supplemental/cooperative care (1) DEERS. (i) The Defense Enrollment policy addressed in § 728.4(z). Eligibility Reporting System (DEERS) (4) Dependents of members of NATO na- was implemented by OPNAVINST tions. When a dependent, as defined in 1750.2. Where DEERS has been started § 728.41, of a member of a NATO nation at naval medical and dental treatment requires care beyond the capabilities of facilities, commanding officers will ap- a facility and a transfer is necessary, point, in writing, a DEERS project offi- the commanding officer of that facility cer to perform at the base level. The may: project officer’s responsibilities and (i) Arrange for transfer to another functions include coordinating, exe- USMTF or designated USTF with re- cuting, and maintaining base-level quired capability if either is located in DEERS policies and procedures; pro- an overlapping inpatient catchment viding liaison with line activities, area of the transferring facility. base-level personnel project officers, (ii) If the patient or sponsor agrees, and base-level public affairs project of- arrange for transfer to the nearest ficers; meeting and helping the con- USMTF or designated USTF with re- tractor field representative on site vis- quired capability, regardless of its lo- its to each facility under the project cation. officer’s cognizance; and compiling and (iii) Effect disposition per § 728.42(d). submitting reports required within the (5) Others—(i) Medical care. Section 34 of title 24, United States Code, provides command and by higher authority. that hospitalization and outpatient (ii) Commanding officers of afloat services may be provided outside the and deployable units are encouraged to continental limits of the United States appoint a unit DEERS medical project and in Alaska to officers and employ- officer as a liaison with the hospital ees of any department or agency of the project officer providing services to Federal Government, to employees of a local medical and dental treatment fa- contractor with the United States or cilities. Distribute notice of such ap- the contractor’s subcontractor, to de- pointments to all concerned facilities. pendents of such persons, and in emer- (iii) When a DEERS project officer gencies to such other persons as the has been appointed by a naval MTF or Secretary of the Navy may prescribe: DTF, submit a message (report control Provided, such services are not other- symbol MED 6320–42) to wise available in reasonably accessible COMNAVMEDCOM, with information

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copies to appropriate chain of com- questing health benefits. Although the mand activities, no later than 10 Octo- most widely recognized and acceptable ber annually, and situationally when forms of identification are DD 1173, DD changes occur. As a minimum, the re- 2, Form PHS–1866–1, and Form PHS– port will provide: 1866–3 (Ret), individuals presenting for (A) Name of reporting facility. If the care without such identification may project officer is responsible for more be rendered care upon presentation of than one facility, list all such facili- other identification as outlined in this ties. part. Under the circumstances indi- (B) Mailing address including com- cated, the following procedures will be plete zip code (zip + 4) and unit identi- followed when individuals present fication code (UIC). Include this infor- without the required ID card. mation for all facilities listed in (i) Children under 10. Although a DD § 728.4(cc)(1)(iii)(A). 1173 (Uniformed Services Identification (C) Name, grade, and corps of the and Privilege Card) may be issued to DEERS project officer designated. children under 10 years of age, under (D) Position title within parent facil- normal circumstances they are not. ity. Accordingly, certification and identi- (E) AUTOVON and commercial tele- fication of children under 10 years of phone numbers. age are the responsibility of the mem- (2) DEERS and the identification card. ber, retired member, accompanying This subpart includes DEERS proce- parent, legal guardian, or acting guard- dures for eligibility verification checks ian. Either the DD 1173 issued the to be used in conjunction with the spouse of a member or former member identification card system as a basis or the identification card of the mem- for verifying eligibility for medical and ber or former member (DD 2, DD 2 dental care in USMTFs and uniformed (Ret), Form PHS–1866–1, or Form PHS– services dental treatment facilities 1866–3 (Ret)) is acceptable for the pur- (USDTFs). For other than emergency pose of verifying eligibility of a child care, certain patients are required to under 10 years of age. have a valid ID card in their possession and, under the circumstances described (ii) Indefinite expiration. The fact that in § 728.4(cc)(3), are also required to the word ‘‘indefinite’’ may appear in meet DEERS criteria before treatment the space for the expiration date on a or services are rendered. Although member’s card does not lessen its ac- DEERS and the ID card system are ceptability for identification of a child. interrelated, there will be instances See § 728.4(cc)(3)(iii) for dependent’s where a beneficiary is in possession of cards with an indefinite expiration an apparently valid ID card and the date. DEERS verification check shows that (iii) Expiration date. To be valid, a de- eligibility has terminated or vice pendent’s DD 1173 must have an expira- versa. Eligibility verification via an ID tion date. Do not honor a dependent’s card does not override an indication of DD 1173 with an expiration date of ‘‘in- ineligibility in DEERS without some definite’’. Furthermore, such a card other collateral documentation. De- should be confiscated, per pendents (in possession of or without NAVMILPERSCOMINST 1750.1A, and ID cards) who undergo DEERS check- forwarded to the local PSD. The PSD ing will be considered ineligible for the may then forward it to the Com- reasons stated in § 728.4(cc)(4)(v) (A) mander, Naval Military Personnel through (G). For problem resolution, Command, (NMPC (641D)/Pers 7312), De- refer dependents of active duty mem- partment of the Navy, Washington, DC bers to the personnel support detach- 20370–5000 for investigation and final ment (PSD) servicing the sponsor’s disposition. Render necessary emer- command; refer retirees, their depend- gency treatment to such a person. The ents, and survivors to the local PSD. patient administration department (3) Identification cards and procedures. must determine such a patient’s bene- All individuals, including members of ficiary status within 30 calendar days uniformed services in uniform, must and forward such determination to the provide valid identification when re- fiscal department. If indicated, billing

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action for treatment will then proceed junction with possession of a valid ID following NAVMED P–5020. card. (iv) Without cards or with expired (i) Prospective DEERS processing—(A) cards. (A) When parents or parents-in- Appointments. To minimize difficulties law (including step-parents and step- for MTFs, DTFs, and patients, DEERS parents-in-law) request care in naval checks are necessary for prospective MTFs or DTFs without a DD 1173 in patients with future appointments their possession or with expired DD made through a central or clinic ap- 1173’s, render care if they or their spon- pointment desk. Without advance sor sign a statement that the indi- DEERS checking, patients could arrive vidual requiring care has a valid ID at a facility with valid ID cards but card or that an application has been may fail the DEERS check, or may ar- submitted for a renewal DD 1173. In the rive without ID cards but be identified latter instance, include in the state- by the DEERS check as eligible. ment the allegation that: (1) The bene- Records, including full social security ficiary is dependent upon the service numbers, of central and clinic appoint- member for over one-half of his or her ment systems will be passed daily to support, and (2) that there has been no the DEERS representative for a pro- material change in the beneficiary’s spective DEERS check. This enables circumstances since the previous deter- appointment clerks to notify individ- mination of dependency and issuance of uals with appointments of any appar- the expired card. Place the statement ent problem with the DEERS or ID in the beneficiary’s medical record. In- card system and refer those with prob- form the patient or sponsor that if eli- lems to appropriate authorities prior gibility is not verified by presentation to the appointment. of a valid ID card to the patient admin- (B) Prescriptions. Minimum checking istration department within 30 cal- requirements of the program require endar days, the facility will initiate ac- prospective DEERS checks on all indi- tion to recoup the cost of care. If individuals presenting prescriptions of ci- cated, billing action for the cost of vilian providers (see treatment will then proceed following § 728.4(cc)(4)(iv)(D)). NAVMED P–5020. (ii) Retrospective DEERS processing. (B) When recent accessions, National Pass daily logs (for walk-in patients, Guard, reservists, or Reserve units are patients presenting in emergencies, or called to active duty for a period great- patients replacing last minute appoint- er than 30 days and neither the mem- ment cancellations) to the DEERS rep- bers nor their dependents are at yet in resentative for retrospective batch receipt of their identification cards, processing if necessary for the facility satisfactory collateral identification to meet the minimum checking re- may be accepted in lieu thereof, i.e., of- quirements in § 728.4(cc)(4)(iv). For ficial documents such as orders, along DEERS processing, the last four digits with a marriage license, or birth cer- of a social security number are insuffi- tificate which establish the individ- cient. Accordingly, when retrospective ual’s status as a dependent of a mem- processing is necessary, the full social ber called to duty for a period which is security number of each patient must not specified as 30 days or less. For a be included on daily logs. child, the collateral documentation (iii) Priorities. With the following ini- must include satisfactory evidence tial priorities, conduct DEERS eligi- that the child is within the age lim- bility checks using a CRT terminal, iting criteria outlined in § 728.31(b)(4). single-number dialer telephone, or 800 An eligible dependent’s entitlement, number access provided for the specific under the provisions of this subpart, purpose of DEERS checking to: starts on the first day of the sponsor’s (A) Determine whether a beneficiary active service and ends as of midnight is enrolled. on the last day of active service. (B) Verify beneficiary eligibility. (4) DEERS checking. Unless otherwise Eastablishment of eligibility is under indicated, all DEERS verification pro- the cognizance of personnel support ac- cedures will be accomplished in con- tivities and detachments.

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(C) Identify any errors on the data (E) One hundred percent of all indi- base. viduals requesting treatment without a (iv) Minimum checking requirements. valid ID card if they represent them- Process patients presenting at selves as individuals who are eligible to USMTFs and DTFs in the 50 States for be included in the DEERS data base. DEERS eligibility verification per the (v) Ineligibility determinations. When a following minimum checking require- DEERS verification check is performed ments. and eligibility cannot be verified for (A) Twenty five percent of all out- any of the following reasons, deny rou- patient visits. tine nonemergency care unless the ben- (B) One hundred percent of all admis- eficiary meets the criteria for a sions. DEERS eligibility override as noted in (C) One hundred percent of all dental § 728.4(cc)(4)(viii). visits at all DTFs for other than active (A) Sponsor not enrolled in DEERS. duty members, retired members, and (B) Dependent not enrolled in dependent. DEERS. (1) Active duty members are exempt (C) ‘‘End eligibility date’’ has passed. from DEERS eligibility verification Each individual in the DEERS data checking at DTFs. base has a date assigned on which eligi- (2) Retired members will receive a bility is scheduled to end. DEERS vertification check at the ini- (D) Sponsor has separated from ac- tial visit to any DTF and annually tive duty and is no longer entitled to thereafter at time of treatment at the benefits. same facility. To qualify for care as a (E) Spouse has a final divorce decree result of the annually performed from sponsor and is not entitled to con- verification check, the individual per- tinued eligibility as a former spouse. forming the eligibility check will make (F) Dependent child is married. a notation to this effect on an SF 603, (G) Dependent becomes an active Health Record—Dental. Include in the duty member of a uniformed service. notation the date and result of the (Applies only to CHAMPUS benefits check. since the former dependent becomes (3) Dependents will have a DEERS entitled to direct care benefits in his or eligibility verification check upon ini- her own right as an active duty mem- tial presentation for evaluation or ber and must enroll in DEERS.) treatment. This check will be valid for (vi) Emergency situations. When a phy- up to 30 days if, when the check is con- sician determines that emergency care ducted, the period of eligibility re- is necessary, initiate treatment. If ad- quested is 30 days. A 30-day eligibility mitted after emergency treatment has check may be accomplished online or been provided, a retrospective DEERS via telephone by filling in or request- check is required. If an emergency ad- ing the operator to fill in a 30 day pe- mission or emergency outpatient treat- riod in the requested treatment dates ment is accomplished for an individual on the DEERS eligibility inquiry whose proof of eligibility is in ques- screen. Each service or clinic is ex- tion, the patient administration de- pected to establish auditable proce- partment must determine the individ- dures to trace the date of the last eligi- ual’s beneficiary status within 30 cal- bility verification on a particular de- endar days of treatment and forward pendent. such determination to the fiscal de- (D) One hundred percent of pharmacy partment. Eligibility verifications will outpatients presenting new prescrip- normally consist of presentation of a tions written by a civilian provider. valid ID card along with either a posi- Prospective DEERS checks are re- tive DEERS check or a DEERS over- quired for all patients presenting pre- ride as noted in § 728.4(cc)(4)(viii). If in- scriptions of civilian providers. A dicated, billing action for treatment DEERS check is not required upon will then proceed per NAVMED P–5020. presentation of a request for refill of a (vii) Eligibility verification for non- prescription of a civilian provider if emergency care. When a prospective pa- the original prescription was filled by a tient presents without a valid ID card USMTF within the past 120 days. and:

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(A) DEERS does not verify eligi- If the original is used, the personnel bility, deny nonemergency care. Care support detachment (PSD) furnishing denial will only be accomplished by su- the original will list the telephone pervisory personnel designated by the number of the verifying officer to aid commanding officer. in verification. Any copy presented (B) The individual is on the DEERS must have an original signature in sec- data base, do not provide non- tion III; printed name of verifying offi- emergency care until a NAVMED 6320/ cer, his or her grade, title, and tele- 9, Dependent’s Eligibility for Medical phone number; and the date the copy Care, is signed by the member, patient, was issued. For treatment purposes, patient’s parent, or patient’s legal or this override expires 120 days from the acting guardian. This form attests the date issued. fact that eligibility has been estab- (B) Recently issued identification lished per appropriate directives and cards—(1) DD 1173. Patient presents a includes the reason a valid ID card is recently issued DD 1173, Uniformed not in the prospective patient’s posses- Services Identification and Privilege sion. Apprise the aforementioned re- Card. Examples are spouses recently sponsible individual of the provisions married to sponsor, newly eligible step- on the form NAVMED 6320/9 now re- children, family members of sponsors quiring presentation of a valid ID card recently entering on active duty for a within 30 calendar days. Deny treat- period greater than 30 days, parents or ment or admission in physician deter- parents-in-law, and unremarried mined nonemergency situations of per- spouses recently determined eligible. sons refusing to sign the certification For treatment purposes, this override on the NAVMED 6320/9. For persons expires 120 days from the date issued. rendered treatment, patient adminis- (2) Other ID cards. Patient presents tration department personnel must de- any of the following ID cards with a termine their eligibility status within date of issue within the previous 120 30 calendar days and forward such de- days: DD 2, DD 2 (Ret), Form PHS 1866– termination to the fiscal department. 1, or Form PHs 1866–3 (Ret). When these If indicated, billing action for treat- ID cards are used for the purpose of ment will then proceed following verifying eligibility for a child, collat- NAVMED P–5020. eral documentation is necessary to en- (viii) DEERS overrides. Possession of sure the child is actually the alleged an ID card alone does not constitute sponsor’s dependent and in determining sufficient proof of eligibility when the whether the child is within the age DEERS check does not verify eligi- limiting criteria outlined in bility. What constitutes sufficient § 728.31(b)(4). proof will be determined by the reason (C) Active duty orders. Patient or the patient failed the DEERS check. sponsor presents recently issued orders For example, groups most expected to to active duty for a period greater than fail DEERS eligibility checks are re- 30 days. Copies of such orders may be cent accession members and their de- accepted up to 120 days of their issue pendents, Guard or Reserve members date. recently activated for training periods (D) Newborn infants. Newborn infants of greater than 30 days and their de- for a period of 1 year after birth pro- pendents, and parents and parents-in- vided the sponsor presents a valid ID law with expired ID cards. Upon pres- card. entation of a valid ID card, the fol- (E) Recently expired ID cards. If the lowing are reasons to ‘‘override’’ a DEERS data base shows an individual DEERS check either showing the indi- as ineligible due to an ID card that has vidual as ineligible or when an indi- expired within the previous 120 days vidual does not appear in the DEERS (shown on the screen as ‘‘Elig with data base. valid ID card’’), care may be rendered (A) DD 1172. Patient presents an when the patient has a new ID card original of a copy of a DD 1172, Applica- issued within the previous 120 days. tion for Uniformed Services Identifica- (F) Sponsor’s duty station has an FPO tion and Privilege Card, which is also or APO number or sponsor is stationed used to enroll beneficiaries in DEERS. outside the 50 United States. Do not deny

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care to bona fide dependents of spon- Subpart B—Members of the Uni- sors assigned to a duty station outside formed Services on Active the 50 United States or assigned to a Duty duty station with an FPO or APO address as long as the sponsor appears on § 728.11 Eligible beneficiaries. the DEERS data base. Before initiating (a) A member of a uniformed service, nonemergency care, request collateral as defined in subpart A, who is on ac- documentation showing relationship to tive duty is entitled to and will be pro- sponsor when the relationship is or vided medical and dental care and ad- may be in doubt. juncts thereto. For the purpose of this (G) Survivors. Dependents of deceased part, the following are also considered sponsors when the deceased sponsor on active duty: failed to enroll in or have his or her de- (1) Members of the National Guard in pendents enrolled in DEERS. This situ- active Federal service pursuant to a ation will be evidenced when an eligi- ‘‘call’’ under 10 U.S.C. 3500 or 8500. bility check on the surviving widow or (2) Midshipmen of the U.S. Naval widower (or other dependent) finds that Academy. the sponsor does not appear (screen (3) Cadets of the U.S. Military Acad- shows ‘‘Sponsor SSN Not Found’’) or emy. the survivor’s name appears as the (4) Cadets of the Air Force Academy. (5) Cadets of the Coast Guard Acad- sponsor but the survivor is not listed emy. separately as a dependent. In any of (b) The following categories of per- these situations, if the survivor has a sonnel who are on active duty are enti- valid ID card, treat the individual on tled to and will be provided medical the first visit and refer him or her to and dental care and adjuncts thereto to the local personnel support detachment the same extent as is provided for ac- for correction of the DEERS data base. tive duty members of the Regular serv- For second and subsequent visits prior ice (except reservists when on active to appearance on the DEERS data base, duty for training as delineated in require survivors to present a DD 1172 § 728.21). issued per § 728.4(cc)(4)(viii)(A). (1) Members of the Reserve compo- (H) Patients not eligible for DEERS en- nents. rollment. (1) Secretarial designees are (2) Members of the Fleet Reserve. not eligible for enrollment in DEERS. (3) Members of the Fleet Marine Their eligibility determination is Corps Reserve. verified by the letter, on one of the (4) Members of the Reserve Officers’ service Secretaries’ letterhead, of au- Training Corps. thorization issued. (5) Members of all officer candidate (2) When it becomes necessary to programs. make a determination of eligibility on (6) Retired members of the uniformed services. other individuals not eligible for entry on the DEERS data base, patient ad- § 728.12 Extent of care. ministration department personnel Members who are away from their will obtain a determination from the duty stations or are on duty where purported sponsoring agency, if appro- there is no MTF of their own service priate. When necessary to treat or may receive care at the nearest avail- admit a person who cannot otherwise able Federal MTF (including des- present proof of eligibility for care at ignated USTFs) with the capability to the expense of the Government, do not provide required care. Care will be pro- deny care based only on the fact that vided without regard to whether the the individual is not on the DEERS condition for which treatment is re- data base. In such instances, follow the quired was incurred or contracted in procedures in NAVMED P–5020 to mini- line of duty. mize, to the fullest extent possible, the (a) All uniformed services active duty write-off of uncollectible accounts. members. (1) All eligible beneficiaries

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covered in this subpart are entitled to 443–1943 or FTS 443–1943 if DHHS is to and will be rendered the following assume financial responsibility. Pa- treatment and services upon applica- tient Care Services is the sole source tion to a naval MTF whose mission infor providing authorization for non- cludes the rendering of the care re- Federal care at DHHS expense. quired. This entitlement provides that (b) Maternity episode for active duty fe- when required care and services are be- male members. A pregnant active duty yond the capabilities of the facility to member who lives outside the MHSS which the member applies, the com- inpatient catchment area of all manding officer of that facility will ar- USMTFs is permitted to choose wheth- range for care from another USMTF, er she wishes to deliver in a closer ci- designated USTF, or other Federal vilian hospital or travel to the USMTF source or will authorize and arrange for direct use of supplemental services for delivery. If such a member chooses and supplies from civilian non-Federal to deliver in a naval MTF, makes ap- sources out of operation and mainte- plication, and presents at that facility nance funds. at the time for delivery, the provisions (i) Necessary hospitalization and of paragraph (a) of this section apply other medical care. with respect to the furnishing of need- (ii) Occupational health services as ed care, including routine newborn care defined in § 728.2(z). (i.e., nursery, newborn examination, (iii) Necessary prosthetic devices, PKU test, etc.); arrangements for care prosthetic dental appliances, hearing beyond the facility’s capabilities; or aids, spectacles, orthopedic footwear, the expenditure of funds for supple- and other orthopedic appliances (see mental care or services. Pay expenses subpart H). When these items need re- incurred for the infant in USMTFs or pair or replacement and the items were civilian facilities (once the mother has not damaged or lost through neg- been admitted to the USMTF) from ligence, repair or replacement is au- funds available for care of active duty thorized at Goverment expense. members, unless the infant becomes a (iv) Routine dental care. patient in his or her own right either (2) When a USMTF, with a mission of through an extension of the birthing providing the care required, releases hospital stay because of complications, the medical management of an active subsequent transfer to another facility, duty member of the Navy, Marine or subsequent admission. If the Gov- Corps, Army, Air Force, or a commis- ernment is to assume financial respon- sioned corps member of USPHS or NOAA, the resulting civilian health sibility for: care costs will be paid by the referring (1) Care of pregnant members resid- facility. ing within the MHSS inpatient (3) The member’s uniformed service catchment area of a uniformed services will be billed for care provided by the hospital or in the inpatient catchment civilian facility only when the refer- area of a designated USTF, such mem- ring MTF is not organized nor author- bers are required to: ized to provide needed health care (see (i) Make application to that facility part 732 of this chapter for naval mem- for care, or bers). Saturation of service or facilities (ii) Obtain authorization, per part 732 does not fall within this exception. of this chapter, for delivery in a civil- When a naval MTF retains medical ian facility. management, the costs of supplemental (2) Non-Federal care of pregnant care obtained from civilian sources is members residing outside inpatient paid from funds available to operate catchment areas of USMTFs and the MTF which manages care of the pa- USTFs, the member must request and tient. When it becomes necessary to receive authorization per part 732 of refer a USPHS or NOAA commissioned this chapter. Part 732 of this chapter corps member to a non-Federal source of care, place a call to the Department also provides for cases of precipitious of Health and Human Services (DHHS), labor necessitating emergency care. Chief, Patient Care Services on (301) OPNAVINST 6000.1, Management of

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Pregnant Servicewomen, contains med- Subpart C—Members of Reserve ical-administrative guidelines on man- Components, Reserve Offi- agement prior to admission and after cers’ Training Corps, Navy discharge from admission for delivery. and Marine Corps Officer (c) Reserve and National Guard personnel. In addition to those services Candidate Programs, and Na- covered in paragraphs (a) and (b) of tional Guard Personnel this section, Reserve and National § 728.21 Navy and Marine Corps re- Guard personnel are authorized the fol- servists. lowing under conditions set forth. (See § 728.25 for additional benefits for Na- (a) Scope. This section applies to re- tional Guard personnel.) servists, as those terms are defined in (1) Personnel whose units have an ac- § 728.2, ordered to active duty for train- tive Army mission of manning missile ing or inactive duty training for 30 sites are authorized spectacle inserts days or less. Reservists serving under for protective field masks. orders specifying duty in excess of 30 (2) Personnel assigned to units des- days, such as Sea and Air Mariners ignated for control of civil disturb- (SAMS) while on initial active duty for ances are authorized spectacle inserts training, will be provided care as mem- for protective field masks M17. bers of the Regular service per subpart B. § 728.13 Application for care. (b) Entitlement. Per 10 U.S.C. 1074a(a), reservists who incur or aggravate an Possession of an ID card (a green col- injury, illness, or disease in line of ored DD 2 (with letter suffix denoting duty while on active duty for training branch of service), Armed Forces Iden- or inactive duty training for a period of tification Card; a green colored PHS 30 days or less, including travel to and 1866–1, Identification Card; or a red col- from that duty, are entitled to medical ored DD 2 Res (Reservists on active and dental care appropriate for the duty for training)) alone does not con- treatment of that injury, disease, or stitute sufficient proof of eligibility. illness until the resulting disability Accordingly, make a DEERS check, per cannot be materially improved by fur- § 728.4(cc), before other than emergency ther hospitalization or treatment. Care care is rendered to the extent that may is authorized for such an injury, ill- be authorized. ness, or disease beyond the period of § 728.14 Pay patients. training to the same extent as care is authorized for members of the Regular Care is provided on a reimbursable service (see subpart B) subject to the basis to: Coast Guard active duty offi- provisions of § 728.21(e). cers, enlisted personnel, and academy (c) Questionable circumstances. If the cadets; Public Health Service Commis- circumstances are questionable, refer- sioned Corps active duty officers; and ral to the OMA or ODA is appropriate. Commissioned Corps active duty offi- If necessary, make referral to the cers of the National Oceanic and At- Naval Medical Command (MEDCOM–33 mospheric Administration. Accord- for medical and MEDCOM–06 for den- ingly, patient administration personnel tal) on determinations of entitlements. will initiate the collection action proc- (d) Line of duty. For the purpose of ess in subpart J in each instance of in- providing treatment under laws enti- patient or outpatient care provided to tling reservists to care, an injury, ill- these categories of patients. ness, or disease which is incurred, aggravated, or becomes manifest while a

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reservist is employed in the perform- during a period of training duty with- ance of active duty for training or in- out written authorization. active duty training (including author- (2) Except in emergencies or when in- ized leave, liberty and travel to and patient care initiated during a period from either duty) will be considered to of training duty extends beyond such have been incurred in line of duty period, reservists will be required to (LOD) unless the condition was in- furnish written official authorization curred as a result of the reservist’s own from their unit commanding officer, or misconduct or under other cir- higher authority, incident to receiving cumstances enumerated in JAG Man- inpatient or outpatient care beyond ual, chapter VIII. While the LOD inves- the period of training duty. The letter tigation is being conducted, such re- of authorization will include name, servists remain entitled to care. If the grade or rate, social security number, investigation determines that the in- and organization of the reservist; type jury or illness was not incurred in line of training duty being performed or of duty, the civilian humanitarian non- that was being performed when the indigent rate is applicable if further condition manifested; diagnosis (if care is required in naval MTFs. (See known); and a statement that the con- DOD Military Pay and Allowances En- dition was incurred in line of duty and titlement Manual for allowable con- that the reservist is entitled to care. If structive travel times.) the reservist has been issued a notice (e) Treatment and services authorized. of eligibility (NOE) (subpart I), the In addition to those services delineated NOE may then be accepted in lieu of above, the following may be rendered the letter of authorization. When au- under circumstances outlined: thorization has not been obtained be- (1) Prosthetic devices, including den- forehand, care may be provided on a ci- tal appliances, hearing aids, spectacles, vilian humanitarian basis (see subpart and orthopedic appliances that are lost G) pending final determination of eligi- or have become damaged during train- bility. ing duty, not through negligence of the § 728.22 Members of other reserve individual, may be repaired or replaced components of the uniformed serv- at Government expense. ices. (2) Reservists covered by this subpart (a) Members of reserve components of may be provided the following only if the Coast Guard may be provided care approved by the appropriate OMA or the same as Navy and Marine Corps re- ODA, or by the Commander, Naval servists. Medical Command (MEDCOM–33 for (b) Members of reserve components of medical and MEDCOM–06 for dental) the Army and Air Force may be pro- prior to initiation of services. vided care in naval MTFs to the same (i) Treatment for acute exacerbations extent that they are eligible for such of conditions that existed prior to a re- care in MTFs of their respective serv- servist’s period of training duty. Limit ices. Consult current Army Regulation care to that necessary for the preven- 40–3, Medical, Dental, and Veterinary tion of pain or undue suffering until Care, or Air Force Regulation 168–6, the patient can reasonably return to Persons Authorized Medical Care, as control of the member’s private physi- appropriate, for particular eligibility cian or dentist. requirements or contact the nearest (A) Remediable physical defects and appropriate service facility. remediable treatment for other condi- (c) When the service directive re- tions. quires written authorization, obtain (B) Elective surgery. such authorization from the reservist’s (ii) All dental care other than emer- unit commanding officer or other ap- gency treatment and that necessary to propriate higher authority. correct an injury incurred in the line of (d) Naval MTFs in the United States duty. are authorized to conduct physical ex- (f) Authorization for care. (1) Reserv- aminations of and administer immuni- ists covered by this subpart may be zations to inactive reserve Public provided inpatient or outpatient care Health Service commissioned officers

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upon presentation of a written request (2) While attending a civilian edu- from the Commissioned Personnel Op- cational institution: erations Division, OPM/OAM, 5600 Fish- (i) Medical care in naval MTFs, in- ers Lane, Rockville, MD 20852. cluding hospitalization, for a condition incurred in line of duty while at or § 728.23 Reserve Officers’ Training traveling to or from a military instal- Corps (ROTC). lation for the purpose of undergoing (a) Eligible beneficiaries. (1) Members medical or other examinations or for of the Senior Reserve Officers’ Train- purposes of making visits of observa- ing Corps of the Armed Forces includ- tion, including participation in service- ing students enrolled in the 4-year Sen- sponsored sports, recreational, and ior ROTC Program or the 2-year Ad- training activities. vanced Training Senior ROTC Pro- (ii) Medical examinations, including gram. hospitalization necessary for the prop- (2) Designated applicants for mem- er conduct thereof. bership in the Navy, Army, and Air (iii) Required immunizations, includ- Force Senior ROTC Programs during ing hospitalization for severe reactions their initial 6-weeks training period therefrom. (practice cruises or field training). (c) Authorization. The individual’s (3) Medical, dental, pharmacy, veteri- commanding officer will prepare a let- nary or science allied to medicine stu- ter of authorization addressed to the dents who are commissioned officers of commanding officer of the MTF con- a reserve component of an Armed cerned. Force who have been admitted to and (d) ROTC members as beneficiaries of training in a unit of a Senior Reserve the Office of Workers’ Compensation Pro- Officers’ Training Corps. grams (OWCP). Under circumstances described therein, render care as out- (b) Extent of care. (1) While attending lined in § 728.53 to members of the or en route to or from field training or ROTC as beneficiaries of OWCP. practice cruises: (i) Medical care for a condition in- § 728.24 Navy and Marine Corps Offi- curred without reference to line of cer Candidate Programs. duty. Members of the Reserve Officers Can- (ii) Routine dental care. didate Program and Platoon Leaders (iii) Prosthetic devices, including Class are entitled to the same medical dental appliances, hearing aids, spec- and dental benefits as are provided tacles, and orthopedic appliances that members of the Navy and Marine Corps have become damaged or lost during Reserve Components. Accordingly, the training duty, not through negligence provisions of § 728.21 are applicable for of the individual, may be repaired or such members. Additionally, can- replaced as necessary at government didates for, or persons enrolled in such expense. programs are authorized access to (iv) Care of remediable physical de- naval MTFs for the purpose of con- fects, elective surgery or other remedi- ducting special physical examination able treatment for conditions that ex- procedures which have been requested isted prior to a period of training duty by the Commander, Naval Medical are not authorized without approval Command to determine their physical from the appropriate OMA or ODA, or fitness for appointment to, or continu- from the Commander, Naval Medical ation in such a program. Upon a re- Command (MEDCOM–33 for medical quest from the individual’s com- and MEDCOM–06 for dental). manding officer, the officer in charge (v) Medical examinations and immu- of cognizant Navy and Marine Corps re- nizations. cruiting stations, or officer selection (vi) ROTC members are authorized officer, naval MTFs are authorized to continued medical care, including hos- admit such persons when, in the opin- pitalization, upon expiration of their ion of the cognizant officer, hos- field training or practice cruise period, pitalization is necessary for the proper the same as reservists in § 728.21(b) and conduct of the special physical exami- § 728.22. nations. Hospitalization should be kept

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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 spection, 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 from that duty. The authorizing letter military personnel will include name, social security num- (NAVMEDCOMINST 6810.1 refers). ber, grade, and organization of the (b) Dependents of members of former member; type and period of duty in members. Include: which engaged (or in which engaged when the injury or illness occurred); di- (1) The spouse. agnosis (if known); and will indicate (2) The unremarried widow. that the injury suffered or disease con- (3) The unremarried widower. tracted was in line of duty and that the (4) An unmarried legitimate child, in- individual is entitled to medical or cluding an adopted child or a stepchild, dental care. Limit care to that appro- who either— priate for the injury. disease, or illness (i) Has not passed his or her 21st until the resulting disability cannot be birthday; materially improved by further hos- (ii) Is incapable of self-support be- pitalization or treatment. cause of a mental or physical inca- (b) Physical examinations. AR 40–3 and pacity that existed before the 21st AFR 168–6 also authorize physical ex- birthday and is, or was at the time of aminations for National Guard per- the member’s or former member’s sonnel. Accordingly, when requested by death, in fact dependent on the mem- an Army or Air Force National Guard ber for over one-half of his or her sup- unit’s commanding officer, naval MTFs port; or may perform the requested physical ex- (iii) Has not passed the 23rd birthday, amination per the appropriate service is enrolled in a full-time course of directive, subject to the availability of study in an institution of higher learn- space, facilities, and the capabilities of ing approved by the administering Sec- the staff. retary and is, or was at the time of the member’s or former member’s death, in Subpart D—Retired Members and fact dependent on the member for over Dependents of the Uniformed one-half of his or her support. (If such Services a child suffers a disabling illness or injury and is unable to return to school, § 728.31 Eligible beneficiaries and the child remains eligible for benefits health benefits authorized. until 6 months after the disability is (a) Retired members of the uniformed removed, or until the 23rd birthday is services. Retired members, as defined in reached, whichever comes first.) § 728.2(aa), are authorized the same (5) An unmarried illegitimate child medical and dental benefits as active or illegitimate step-child who is, or duty members subject to the avail- was at the time of sponsor’s death, de- ability of space and facilities, capabili- pendent on the sponsor for more than ties of the professional staff, and the one-half of his or her support; residing priorities in § 728.3, except that: with or in a home provided by the

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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 (7) An unremarried former spouse of the professional staff, and priorities in a member or former member who does § 728.3. Additionally: not have medical coverage under an (1) Members of the uniformed serv- employer-sponsored health plan, and ices must be serving under orders who: specifying active duty for more than 30 (i) On the date of the final decree of days before their dependents are au- divorce, dissolution, or annulment, had thorized benefits delineated in been married to the member or former § 728.31(d). member at least 20 years during which (2) A dependent’s eligibility begins on period the member of former member the date the member enters on active performed at least 20 years of service duty and ends as of midnight of the creditable in determining that mem- date the sponsor’s period of active duty ber’s or former member’s eligibility for ends for any reason other than retire- retired or retainer pay, or equivalent ment or death. Dependents lose eligi- pay. bility as of midnight of the date a (ii) Had been married to the member member is officially place in a deserter of former member at least 20 years, at status. Eligibility is restored on the least 15 of which were during the period date a deserter is returned to military the member of former member per- control. formed service creditable in deter- (3) A dependent (other than a former mining the member’s eligibility for re- spouse) of a member or former member tired or retainer pay, or equivalent who died before attaining age 60 and at pay. The former spouse’s sponsor must the time of death— have performed at least 20 years of (i) Would have been eligible for re- service creditable in determining the tired pay under chapter 67 of title 10 sponsor’s eligibility for retired or re- U.S.C. but for the fact that the member tainer pay, or equivalent pay. of former member was under 60 years of (A) Eligibility for such former age, and spouses continue until remarriage if (ii) Had elected to participate in the the final decree of divorce, dissolution, Survivor Benefit Plan, may not be ren- or annulment occurred before 1 April dered medical or dental care under the 1985. sponsor’s entitlement until the date on (B) Eligibility terminates the later which such member of former member of: Either 2 years from the date of the would have attained age 60. final decree of divorce, dissolution, or (4) A spouse, not qualifying as a annulment; or 1 April 1988 for such former spouse, who is divorced from a former spouses whose final decree member loses eligibility for benefits as occured on or after 1 April 1985. of midnight of the date the divorce be- (iii) An unremarried former spouse of comes final. This includes loss of ma- a deceased member of former member ternity care benefits for wives who are who meets the requirements of pregnant at the time a divorce becomes

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final. A spouse does not lose eligibility (ii) Prescriptions written by civilian through issuance of an interlocutory physicians and dentists (non-Navy em- decree of divorce even when a property ployed) for eligible beneficiaries may settlement has been approved which re- be filled if: leases the member from responsibility (A) The commanding officer or CO’s for the spouse’s support. A spouse’s eli- designee determines that pharmacy gibility depends upon the relationship personnel and funds are available. of the spouse to the member; so long as (B) The items requested are routinely the relationship of husband and wife is stocked. not terminated by a final divorce or (C) The prescribed quantity is within annulment decree, eligibility con- limitations established by the com- tinues. mand. (5) Eligibility of children is not af- (D) The prescriber is in the local area fected by the divorce of parents except (limits designated by the commanding that a stepchild relationship ceases officer). upon divorce or annulment of natural (E) The provisions of chapter 21, parent and step-parent. A child’s eligi- MANMED are followed when such serv- bility for health benefits is not affected ices include the dispensing of con- by the remarriage of the divorced trolled substances. spouse maintaining custody unless the (4) Treatment on an inpatient or out- marriage is to an eligible service mem- patient basis of: ber. (i) Medical and surgical conditions. (6) A stepchild relationship does not (ii) Contagious diseases. cease upon death of the member step- (iii) Nervous, mental, and chronic parent but does cease if the natural conditions. parent subsequently remarries. (5) Physical examinations, including (7) A child of an active duty or re- eye examinations and hearing evalua- tired member, adopted after that mem- tions, and all other tests and proce- ber’s death, retains eligibility for dures necessary for a complete physical health benefits. However, the adoption examination. of a child of a living member (other (6) Immunizations. than by a person whose dependents are (7) Maternity (obstetrical) and infant eligible for health benefits at USMTFs) care, routine care and examination of terminates the child’s eligibility. the newborn infant, and well-baby care (8) If a member’s child is married be- for mothers and infants meeting the fore reaching age 21 to a person whose eligibility requirements of § 728.31(b). If dependents are not eligible for health a newborn infant of an unmarried de- benefits in USMTFs, eligibility ceases pendent minor daughter becomes a pa- as of midnight on the date of marriage. tient in his or her own right after dis- Should the marriage be terminated, charge of the mother, classify the in- the child again becomes eligible for fant as civilian humanitarian non- benefits as a dependent child if other- indigent inasmuch as § 728.31(b) does wise eligible. not define the infant as a dependent of (d) Health benefits authorized. (1) Inpa- the active duty or retired service mem- tient care including services and sup- ber. Therefore, the minor daughter’s plies normally furnished by the MTF. sponsor (parent) should be counseled (2) Outpatient care and services. concerning the possibility of Secre- (3) Drugs (see chapter 21, MANMED). tarial designee status for the infant (i) Prescriptions written by officers (see § 728.77). of the Medical and Dental Corps, civil- (8) Diagnostic tests and services, in- ian physicians and dentists employed cluding laboratory and x-ray examina- by the Navy, designated officers of the tions. Physical therapy, laboratory, x- Medical Service Corps and Nurse Corps, ray, and other ambulatory diagnostic independent duty hospital corpsmen, or therapeutic measures requeted by and others designated to write pre- non-Navy employed physicians may be scriptions will be filled subject to the provided upon approval of the com- availability of pharmaceuticals, and manding officer or designated depart- consistent with control procedures and ment heads. Rendering of such srvices applicable laws. is subordinate to and will not unduly

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interfere with providing inpatient and (e) Dependents of reserves. (1) A de- outpatient care to active duty per- pendent, as defined in § 728.31(b), of a sonnel and others whose priority to re- deceased member of the Naval Reserve, ceive care is equal to or greater than the Fleet Reserve, the Marine Corps such dependents. Ensure that the re- Reserve, or the Fleet Marine Corps Re- lease of any information to non-Navy serve, who— employed physicians is in consonance (i) Was ordered to active duty or to with applicable provisions of perform inactive-duty training for any SECNAVINST 5211.5C. period of time. (9) Family planning services as delin- (ii) Was disabled in the line of duty eated in SECNAVINST 6300.2A. Abor- from an injury while so employed, and tions, at the expense of the Govern- (iii) Dies from such a specific injury, ment, may not be performed except illness, or disease is entitled to the where the life of the mother would be same care as provided for dependents in endangered if the fetus were carried to § 728.31(c). term. (2) The provisions of this subpart D (10) Dental care worldwide on a space are not intended to authorize medical available basis. and dental care precluded for depend- (11) Government ambulance services, ents of members of Reserve compo- surface or air, to transport dependents nents who receive involuntary orders to, from, or between medical facilities to active duty under 10 U.S.C. 270b. when determined by the medical officer (f) Unauthorized care. In addition to in charge to be medically necessary. the devices listed in § 728.31(d)(16) as (12) Home calls when determined by unauthorized, dependents are not au- the medical officer in charge to be thorized care for elective correction of medically necessary. minor dermatological blemishes and (13) Artificial limbs and artificial marks or minor anatomical anomalies. eyes, including initial issue, fitting, repair, replacement, and adjustment. § 728.32 Application for care. (14) Durable equipment such as Possession of an ID card alone (DD 2 wheelchairs, hospital beds, and resus- (Retired), PHS–1866–3 (Retired), or DD citators may be issued on a loan basis. 1173 (Uniformed Services Identification (15) Orthopedic aids, braces, crutches, and Privilege Card)) does not con- elastic stockings, walking irons, and stitute sufficient proof of eligibility. similar aids. Accordingly, a DEERS check will be (16) Prosthetic devices (other than instituted per § 728.4 (cc) before medical artificial limbs and eyes), hearing aids, and dental care may be rendered except orthopedic footwear, and spectacles or in emergencies. When required inpa- contact lenses for the correction of or- tient or outpatient care is beyond the dinary refractive error may not be pro- capabilities of the naval MTF, the provided dependents. These items, how- visions of § 728.34 apply. When required ever, may be sold to dependents at cost inpatient care cannot be rendered and to the Government at facilities outside a decision is made to disengage a the United States and at specific in- CHAMPUS-eligible beneficiary, the stallations within the United States provisions of § 728.33 apply. where adequate civilian facilities are unavailable. § 728.33 Nonavailability statement (DD (17) Special lenses (including intra- 1251). ocular lenses) or contact lenses for (a) General. Per DODINST 6015.19 of 26 those eye conditions which require Nov. 1984, the following guidelines are these items for complete medical or effective as of 1 Jan. 1985. All pre- surgical management of the condition. viously issued Nonavailability State- (18) One wig if the individual has alo- ment guidelines and reporting require- pecia resulting from treatment of a ments are superseded. malignant disease: Provided the indi- (b) Applicability. The following provi- vidual has not previously received a sions are applicable to nonemergency wig at the expense of the United inpatient care only. A DD 1251 is not States. required:

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(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 require the beneficiary to use the by CHAMPUS-eligible beneficiaries USMTF and the attending physician who are subject to the provisions of has specific prior approval from the fa- this section. cility’s commanding officer or higher (2) Emergency maternity care. Unless authority to make such determination. substantiated by medical documenta- (i) Issuance for this reason should be tion and review, a maternity admission restricted to those instances when de- would not be deemed as an emergency nial of the DD 1251 could result in a since the fact of the pregnancy would significant risk to the health of any pa- have been established well in advance tient requiring any clinical specialty. of the admission. In such an instance, (ii) Issuing authorities have discre- the beneficiary would have had suffi- tionary authority to evaluate each sit- cient opportunity to obtain a DD 1251 if uation and issue a DD 1251 under the required in her residence catchment ‘‘medically inappropriate’’ reason if: area. (A) In consideration of individual (3) Newborn infant(s) remaining in hos- medical needs, personal constraints on pital after discharge of mother. A new- an individual’s ability to get to the born infant remaining in the hospital USMTF results in an unreasonable lim- continuously after discharge of the itation on that individual’s ability to mother does not require a separate DD get required medical care, and 1251 for the first 15 days after the (B) The issuing authority determines mother is discharged. Claims for care that obtaining care from a civilian beyond this 15-day limitation must be source selected by the individual would accompanied by a valid DD 1251 issued result in significantly less limitations in the infant’s name. This is due to the on that individual’s ability to get re- fact that the infant becomes a patient quired medical care than would result in his or her own right (the episode of if the individual was required to obtain care for the infant after discharge of care from a USMTF. (C) A beneficiary is in a travel status. the mother is not considered part of The commanding officer of the first fa- the initial reason for admission of the cility contacted, in either the bene- mother (delivery), and is therefore con- ficiary’s home catchment area or the sidered a separate admission under a catchment area where hospital care different diagnosis). was obtained, has this discretionary (4) Cooperative care program. When a authority. Travel in this instance DD 2161, Referral for Civilian Medical means the beneficiary is temporarily Care, is issued for inpatient care in on a trip away from his or her perma- connection with the Cooperative Care nent residence. The reason the patient Program (§ 728.4(z)(5)(iv)) for care under is traveling, the distance involved in CHAMPUS, a DD 1251 must also be the travel, and the time away from the issued. permanent residence is not critical to (5) Beneficiary responsibilities. Bene- the principle inherent in the policy. ficiaries are responsible for deter- The issuing officer to whom the re- mining whether an NAS is necessary in

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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 manders of naval geographic medical Assistant Secretary of Defense for commands, naval MTFs will issue Non- Health Affairs (OASD(HA)) by elec- availability Statements only when care tronic means. System users should required is not available from the refer to their DEERS/NAS Users Man- naval MTF and the beneficiary’s place ual for specific guidance on the use of of residence is within the catchment the automated system. At activities area (as defined in § 728.2(d)) of the where the DEER/NAS automated sys- issuing facility or as otherwise directed tem is not operational, prepare each by the Secretary of Defense. When the DD 1251 per instructions on the reverse facility’s inpatient catchment area of the form. After completion, if au- overlaps the inpatient catchment area thorized by the facility CO, the issuing of one or more other USMTFs or authority will sign the DD 1251. Give a USTFs with inpatient capability and copy to the patient for presentation to the residence of the beneficiary is a participating civilian provider, or for within the same catchment area of one submission with the claim of a non- or more other USMTFs or USTFs with participating provider. Retain a copy inpatient capability, the issuing au- for the issuing activity’s records. Re- thority will: tain the original for subsequent trans- (1) Determine whether required care mittal to the Naval Medical Data Serv- is available at any other USMTFs or ices Center per paragraph (j) of this USTFs whose inpatient catchment area section. overlaps the beneficiary’s residence. If (B) Explain to the patient or other care is available, refer the beneficiary responsible family member the validity to that facility and do not issue a DD period of the DD 1251 (see paragraph (f) 1251. of this section). (2) Implement measures ensuring (C) Ensure that beneficiaries are that an audit trail related to each clearly advised of the cost-sharing pro- check and referral is maintained, in- visions of CHAMPUS and of the fact cluding the check required before ret- that the issuance of a Nonavailability roactive issuance of a DD 1251 as delin- Statement does not imply that eated in paragraph (g) of this section. CHAMPUS will allow any and all costs When other than written communica- incurred through the use of the DD tion is made to ascertain capability, 1251. The issuance of a DD 1251 indi- make a record in the log required in cates only that care requested is not paragraph (h) of this section that available at a USMTF or USTF serving ‘‘Telephonic (or other) determination the beneficiary’s residence inpatient was made on (date) that required care catchment area. was not available at (name of other (D) Review, with the patient or re- USMTF(s) or USTF(s) contacted)’’. The sponsible family member, instructions individual ascertaining this informa- 1 through 6 on the face of the DD 1251 tion will sign this notation. and have the patient or responsible

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family member sign acknowledgement will be annotated in the remarks sec- that such review has been made and is tion documenting the special cir- understood. cumstances necessitating issuance, the (E) Advise recipients that CHAMPUS name and location of the source of care fiscal intermediaries may deny claims selected by the beneficiary, and ap- of individuals who are not enrolled in proximate distance from the source se- the Defense Enrollment Eligibility Re- lected to the nearest USMTF or USTF porting System (DEERS). with capability (see instruction num- (f) Validity period. DD 1251’s issued ber 2 on the reverse of the DD 1251). Es- for: tablish and maintain a consecutively (1) Other than maternity care are numbered log to include for each indi- valid for a hospital admission occur- vidual to whom a DD 1251 is issued: ring within 30 days of issuance and re- (1) Patient’s name and identifying main valid from the date of admission data. until 15 days after discharge from the (2) The facility unique NAS number facility rendering inpatient care. This (block number 1 on the DD 1251). allows for any follow-on treatment re- (i) Appeal procedures. Beneficiaries lated directly to the original admis- may appeal the denial of their request sion. for a DD 1251. This procedure consists (2) Maternity episodes are valid if of four levels within Navy, any one of outpatient of inpatient treatment re- which may terminate action and order lated to the pregnancy is initiated issuance of a Nonavailability State- within 30 days of its issuance. They re- ment if deemed warranted: main valid for care of the mother through termination of the pregnancy (1) The first level is the chief of serv- and for 42 days thereafter to allow for ice, or director of clinical services if postnatal care to be included in the the chief of service is the cognizant au- maternity episode. (See paragraph thority denying the beneficiary’s origi- (d)(3) of this section for the validity penal request. riod of DD 1251’s for infants remaining (2) The second level is the com- after discharge of the mother.) manding officer of the naval MTF de- (g) Retroactive issuance. Issue Non- nying the issuance. Where the appeal is availability Statements retroactively denied and denial is upheld at the com- only if required care could not have manding officer’s level, inform bene- been rendered in a USMTF or USTF as ficiaries that their appeal may be for- specified in paragraph (e) of this sec- warded to the geographic commander tion at the time services were rendered having jurisdictional authority. in the civilian sector. At the time a (3) The third level is the appropriate retroactive issuance is requested, the geographic commander, if the appeal is facility receiving the request will de- denied at this level, inform bene- termine whether capability existed at ficiaries that their appeal may be for- the USMTF or USTF serving the inpa- warded to the Commander, Naval Med- tient catchment area wherein the bene- ical Command, Washington, DC 20372– ficiary resides (resided) or at any of the 5120. facilities in the overlapping area de- (4) The Commander, Naval Medical scribed in paragraph (e) of this section. Command, the fourth level of appeal, While the date of service will be re- will evaluate all documentation sub- corded on the DD 1251, send the re- mitted and arrive at a decision. The tained original to the Naval Medical beneficiary will be notified in writing Data Services Center along with others of this decision and the reasons there- issued during the week of issuance for. (paragraph (j) of this section refers). (j) Data collection and reporting. Do (h) Annotating DD 1251’s. Before not issue the original of each DD 1251 issuance, annotate each DD 1251 per prepared at activities where the DEER/ the instructions for completion on the NAS automated system is not oper- reverse of the form. DD 1251’s issued ational. Send the retained originals to under the CO’s discretionary authority the Commanding Officer, Naval Med- for the ‘‘medically inappropriate rea- ical Data Services Center (Code–03), son (paragraph (c)(3)(ii) of this section) Bethesda, MD 20814–5066 for reporting

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under report control symbol DD-HA (Q) (2) A husband if dependent on his 1463(6320). sponsor for more than one-half of his support. § 728.34 Care beyond the capabilities (3) An unmarried legitimate child, in- of a naval MTF. cluding an adopted or stepchild who is When either during initial evaluation dependent on the sponsor for over one- or during the course of treatment of an half of his or her support and who ei- individual authorized care in this sub- ther: part, a determination is made that re- (i) Has not passed the 21st birthday; quired care or services are beyond the capability of the naval MTF, the provi- or sions of § 728.4(z)(2) apply. (ii) Is incapable of self-support due to a physical or mental incapacity that § 728.35 Coordination of benefits— existed prior to reaching the age of 21; third party payers. or Title 10 U.S.C. 1095 directs the serv- (iii) Has not passed the 23rd birthday ices to collect from third-party payers and is enrolled in a full-time course of the reasonable costs of inpatient hos- study in an accredited institution of pital care incurred by the United higher learning. States on behalf of retirees and depend- (b) Transfer to naval MTFs in the ents. Naval hospital collection agents United States. Do not transfer personnel have been provided instructions rel- covered in this subpart to the United ative to this issue and are responsible States solely for the purpose of obtain- for initiating claims to third-party ing medical care at naval MTFs. Con- payers for the cost of such care. Admis- sideration may be given however, in sion office personnel must obtain in- special circumstances following laws of surance, medical service, or health humanity or principles of international plan (third-party payer) information courtesy. Transfer to naval MTFs in from retirees and dependents upon admission and forward this information the United States of such persons lo- to the collection agent. cated outside the United States requires approval of the Secretary of the § 728.36 Pay patients. Navy. Naval commands, therefore, Care is provided on a reimbursable should not commit the Navy by a basis to retired Coast Guard officers promise of treatment in the United and enlisted personnel, retired Public States. Approval generally will not be Health Service Commissioned Corps of- granted for treatment of those who suf- ficers, retired Commissioned Corps offi- fer from incurable afflictions, who re- cers of the National Oceanic and At- quire excessive nursing or custodial mospheric Administration, and to the care, or those who have adequate facili- dependents of such personnel. Accord- ties in their own country. When a re- ingly, patient administration personnel quest is received concerning transfer will follow the provisions of subpart J for treatment at a naval MTF in the to initiate the collection action proc- United States, the following procedures ess when inpatient or outpatient care apply: is provided to these categories of bene- (1) Forward the request to the Chief ficiaries. of Naval Operations (OP–61), with a copy to the Commander, Naval Medical Subpart E—Members of Foreign Command, Washington, DC 20372–5120 Military Services and Their De- for administrative processing. Include: pendents (i) Patient’s full name and grade or rate (if dependent, the sponsor’s name § 728.41 General provisions. and grade or rate also). (a) Dependent. As used in this sub- (ii) Country of which a citizen. part, the term ‘‘dependent’’ denotes a (iii) Results of coordination with the person who bears one of the following chief of the diplomatic mission of the relationships to his or her sponsor: country involved. (1) A wife.

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(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 (OP–61) will, if appropriate, obtain eligible persons passing through the State Department clearance and guid- United States on official business and ance and advise the Secretary of the those enumerated in paragraph (b) (2) Navy accordingly. The Commander, and (3) of this section, orders or other Naval Medical Command will furnish official identification may be accepted the Chief of Naval Operations informa- in lieu of the DD 1173. tion and recommendations relative to (d) Disposition. When it becomes nec- the medical aspects and the name of essary to return individuals to their the naval MTF with the capability to home country for medical reasons, provide required care. If approved, the make immediate notification to the Chief of Naval Operations will furnish, NATO unit sponsoring the member or through the chain of command, the dependent’s sponsor. Include all perti- commanding officer of the designated nent information regarding the phys- naval MTF authorization for admission ical and mental condition of the indi- of the beneficiary for treatment. vidual concerned. Following are details of agreements among the Armed § 728.42 NATO. Forces of NATO, CENTO, and SEATO (a) NATO SOFA nations. Belgium, Nations on procedures for disposition Canada, Denmark, Federal Republic of of allied country patients by DOD med- Germany, France, Greece, Iceland, ical installations. Italy, Luxembourg, the Netherlands, (1) Transfer of patients. (i) The pa- Norway, Portugal, Spain, Turkey, the tient’s medical welfare must be the United Kingdom, and the United paramount consideration. When decid- States. ing upon transfer of a patient, give due (b) Beneficiaries. The following per- consideration to any increased medical sonnel are beneficiaries under the con- hazard which the transfer might in- ditions set forth. volve. (1) Members of NATO military services (ii) Arrangements for disposition of and their dependents. Military personnel patients should be capable of being im- of NATO nations, who, in connection plemented by existing organizations. with their official duties, are stationed Consequently, no new establishment in or passing through the United States, and their dependents residing should be required specially for dealing in the United States with the sponsor with the transferring of allied casual- may be provided care in naval MTFs to ties. the same extent and under the same (iii) Transfer patients to their own conditions as comparable U.S. uni- national organization at the earliest formed services personnel and their de- practicable opportunity consistent pendents. Accordingly, the provisions with the observance of principles estab- of § 728.12 are applicable to military lished in paragraph (d)(1) (i) and (ii) of personnel and § 728.31(d) through § 728.34 this section and under any of the fol- to accompanying dependents. lowing conditions: (2) Military ships and aircraft per- (A) When a medical facility of their sonnel. Crew and passengers of visiting own nation is within reasonable prox- military aircraft and crews of ships of imity of the facility of the holding na- NATO nations which land or come into tion.

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(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 (viii) Patients not suitable for trans- departments; and military personnel fer to their own national organization on duty in the United States at the in- must be dealt with for treatment and vitation of the Secretary of Defense or disposition purposes as patients of the one of the military departments. For holding nation until they are trans- the purpose of § 728.43, members of for- ferred, i.e., they will be dealth with in eign Security Assistance Training Pro- military hospitals, military medical grams (SATP) and Foreign Military installations, or in civilian hospitals Sales (FMS) are not included (see that are part of the military medical § 728.44). evacuation system of the holding na- (3) Foreign military personnel action. credited to joint United States defense (2) Classification of patients. Different boards or commissions when stationed channels for disposition will be rein the United States. quired for the following two types of (4) Foreign military personnel cov- patients: ered in agreements entered into by the (i) Patients not requiring admission. Secretary of State, Secretary of De- Patients not requiring admission to an fense, or one of the military depart- MTF will be returned to their nearest ments to include, but not limited to, national unit under arrangements to be United Nations forces personnel of for- made locally. eign governments exclusive of NATO (ii) Patients admitted to medical instal- nations. lations. All such patients will be dealth (b) Care authorized in the United with per paragraph (d)(1) of this sec- States. Military personnel of foreign nation. tions not covered in § 728.42 and their (e) Care authorized outside the 48 con- dependents residing in the United tiguous United States. Major overseas States with the sponsor may be rou- commanders may authorize care in tinely provided only outpatient med- naval MTFs subject to the availability ical care in naval MTFs on a reimburs- of space, facilities, and the capabilities able basis. Provided, the sponsor is in of the professional staff in emergency the United States in a status officially situations only, Provided, the required recognized by an agency of the Depart- care cannot reasonably be obtained in ment of Defense. Dental care and hos- medical facilities of the host country pitalization for such members and or in facilities of the patient’s own their dependents are limited to emer- country, or if such facilities are inad- gencies. All outpatient care and hos- equate. Provide hospitalization only pitalization in emergencies are subject

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to reimbursement as outlined in care provided to their dependents; and § 728.46. all inpatient medical services for train- (c) Application for care. All personnel ees from France and their dependents covered by § 728.43 will present orders are to be borne by the individual train- or other official U.S. identification ee. verifying their status when applying (2) Elective and definitive surgery. The for care. overall policy with respect to elective (d) Disposition. When it becomes nec- and definitive surgery for Security As- essary to return individuals covered by sistance Training Program (SATP), § 728.43 to their home country for med- Foreign Military Sales (FMS) per- ical reasons, make immediate notifica- sonnel and their dependents is that tion to the sponsoring unit of the pa- conservatism will at all times prevail, tient or patient’s sponsor with a copy except bona fide emergency situations to the Chief of Naval Operations (OP– which might threaten the life or health 61). Include all pertinent information of an individual. Generally, elective regarding the physical and mental con- care is not authorized nor should be dition of the individual concerned and started. However, when a commanding full identification, diagnosis, prog- officer of a naval MTF considers such nosis, estimated period of hospitaliza- care necessary to the early resumption tion, and recommended disposition. Ad- and completion of training, submit the ditionally, the provisions of § 728.42(d) complete facts to the Chief of Naval (1) and (2) apply. Operations (OP–63) for approval. In- (e) Care authorized outside the 48 conclude the patient’s name (sponsor’s tiguous United States. Major overseas also if patient is an ITO authorized de- commanders may authorize care in pendent), grade or rate, country of ori- naval MTFs subject to the availability gin, diagnosis, type of elective care of space, facilities, and the capabilities being sought, and prognosis. of the professional staff in emergency (3) Prior to entering training. Upon ar- situations only. Provided, the required rival of an SATP or FMS trainee in the care cannot reasonably be obtained in United States or at an overseas train- medical facilities of the host country ing site, it is discovered that the train- or in facilities of the patient’s own ee cannot qualify for training by rea- country, or if such facilities are inad- son of a physical or mental condition equate. Provide hospitalization only which will require a significant amount for acute medical and surgical condi- of treatment before entering or com- tions, exclusive of nervous, mental, or pleting training, return such trainees contagious diseases or those requiring domiciliary care. Administer dental to their home country immediately or treatment only as an adjunct to au- as soon thereafter as travel permits. thorized inpatient care. Do not include (4) After entering training. When train- dental prostheses or orthodontia. ees require hospitalization or are disabled after entering a course of train- § 728.44 Members of security assisting, return them to their home country ance training programs, foreign as soon as practicable when, in the military sales, and their ITO au- opinion of the commanding officer of thorized dependents. the medical facility, hospitalization or (a) Policies—(1) Invitational travel or- disability will prevent training for a ders screening. Prior to determining the period in excess of 30 days. Forward a levels of care authorized or the govern- copy of the patient’s clinical records ment or person responsible for pay- with the patient. When a trainee is ac- ment for care rendered, carefully cepted for treatment that is not ex- screen ITOs to detect variations appli- pected to exceed 30 days, notify the cable to certain foreign countries. For commanding officer of the training example, unless orders state dif- acvitity. Further, when a trainee is ferently, Kuwait has a civilian health scheduled for consecutive training ses- plan to cover medical expenses of their sions convening prior to the expected trainees; trainees from the Federal Re- data of release from a naval MTF, public of Germany are personally re- make the next scheduled training ac- sponsible for reimbursing for inpatient tivity an information addressee. Upon

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release from the MTF, direct such (A) Prosthetic devices, hearing aids, trainees to resume training. orthopedic footwear, and similar ad- (b) Care authorized. Generally, all juncts are not authorized. SATP and FMS personnel and their (B) Spectacles may be furnished when ITO authorized dependents are entitled required to enable trainees to perform to care to the same extent. However, their assigned duties, Provided the re- certain agreements require that they quired spectacles are not available be charged differently and that certain through civilian sources. exclusions apply. (C) Dental care is limited to emer- (1) NATO members and their ITO au- gency situations for the military member and is not authorized for depend- thorized dependents—(i) Foreign military ents. sales (FMS). Subject to reimbursement (D) Dependents are not authorized per § 728.46, FMS personnel of NATO na- cooperative care under CHAMPUS. tions who are in the United States or (ii) International military education at U.S. Armed Forces installations out- and training. Subject to reimbursement side the United States and their ac- for both inpatient and outpatient care companying ITO authorized dependents at the appropriate rates for members will be provided medical and dental and dependents, IMET personnel of care in naval MTFs to the same extent non-NATO nations may be provided and under the same conditions as com- medical and dental care on a space parable United States military per- available basis when facilities and sonnel and their dependents except staffing permit except that: that: (A) Prosthetic devices, hearing aids, (A) Dependent dental care is not au- orthopedic footwear, and similar ad- thorized. juncts are not authorized. (B) Dependents are not authorized co- (B) spectacles may be furnished when operative care under CHAMPUS. required to enable trainees to perform (ii) International military education their assigned duties, Provided the re- and training (IMET). Subject to reim- quired spectacles are not available bursement for inpatient care at the ap- through civilian sources. propriate IMET rate for members or at (C) Dental care is limited to emer- the full reimbursement rate for de- gency situations for military members pendents, IMET personnel of NATO na- and is not authorized for dependents. tions who are in the United States or (D) Dependents are not authorized at U.S. Armed Forces installations out- cooperative care under CHAMPUS. side the United States and accom- (c) Application for care. Trainees and panying dependents will be provided accompanying dependents will present medical and dental care in naval MTFs official U.S. identification or orders to the same extent and under the same verifying their status when applying conditions as comparable United for care. If any doubt exists as to the extent of care authorized, ITOs should States military personnel and their de- be screened (see paragraph (a)(1) of this pendents except that: section). (A) Dependent dental care is not au- (d) Notification. When trainees require thorized. hospitalization as a result of illness or (B) Dependents are not authorized co- injury prior to or after entering train- operative care under CHAMPUS. ing, the training activity (the hospital (2) Other foreign members and ITO au- if patient has been admitted) will make thorized dependents—(i) Foreign military a message report through the normal sales. Subject to reimbursement by the chain of command to the Chief of Naval trainee or the trainee’s government for Operations (OP–63) with information both inpatient and outpatient care at copies to MAAG, COMNAV MEDCOM, the full reimbursement rate, FMS per- Navy International Logistics Control sonnel of non-NATO nations and ITO Office (NAVIL CO), Unified Com- authorized accompanying dependents mander, the affected office, and the may be provided medical and dental foreign naval attache concerned. In- care on a space available basis when fa- clude details of the incident, estimated cilities and staffing permit except that: period of hospitalization, physical or

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mental condition of the patient, and di- pendents from a foreign country if agnosis. For further amplification, see comparable care is made available to a OPNAVINST 4950.1H and comparable number of United States NAVCOMPTMAN 032103. military personnel in that foreign country.’’ § 728.45 Civilian components (employ- (b) Canadian agreement. On 3 Novem- ees of foreign military services) and ber 1986, the Department of National their dependents. Defence of Canada and DOD concluded (a) Care authorized. Beneficiaries cov- a comparable care agreement that covered in this section are only authorized ers certain military personnel. The care in naval MTFs in the United agreement stipulates that: States and then only civilian humani- (1) DOD will, upon request, provide tarian emergency care on a reimburs- Canadian Forces members the same able basis (subpart J) rendered at in- range of medical and dental services stallations which have been designated under the same conditions and to the as remote by the Secretary of the same extent as such services are pro- Navy. Make arrangements to transfer vided comparable United States mili- such beneficiaries to a civilian facility tary personnel. Inasmuch as the agree- as soon as their condition permits. ment covers only certain military per- (b) Potential beneficiaries—(1) NATO. sonnel, the reimbursement provisions Civilian employee personnel (and their of Pub. L. 99–591 remain in effect for in- dependents residing with them) accom- patient care provided to Canadian dip- panying military personnel in lomatic personnel, Canadian depend- § 728.42(b)(1), Provided, the beneficiaries ents, and Canadian foreign military are not stateless persons nor nationals sales trainees who receive care in the of any state which is not a party to the United States. Further: North Atlantic Treaty, nor nationals (2) Permanently stationed Canadian of, nor ordinarily residents in the units with established strengths of United States. more than 150 personnel are expected (2) Others. Civilian personnel not cov- to have integral health care capability. ered in § 728.45(b)(1) (and their depend- Any health care services which mem- ents residing with them) accompanying bers of such units receive from the host personnel of foreign nations on duty in nation will be provided on a full reim- the United States at the invitation of bursement basis. Groups of larger than the Department of Defense or one of 150 personnel, which conduct collective the military departments. training in the United States, are ex- (c) Application for care. Personnel cov- pected to deploy with an organic unit ered by the provisions of § 728.45 will medical capability. Naval MTFs may present orders or other official U.S. be requested to provide services, be- identification verifying their status yond the capability of the organic unit, when applying for care. at full reimbursement rates. (c) Procedures. (1) Until otherwise di- § 728.46 Charges and collection. rected, naval MTFs in the 50 United (a) Policy. Pub. L. 99–591, section 9029, States will collect the full reimburse- contains provisions prohibiting the ex- ment rate (FRR) for inpatient care pro- penditure of appropriated funds vided to all foreign military personnel ‘‘. . . to provide medical care in the (except Canadians covered by the com- United States on an inpatient basis to parable care agreement in § 728.46(b), foreign military and diplomatic per- and military personnel connected with sonnel or their dependents unless the a Foreign Military Sales (FMS) case Department of Defense is reimbursed number), foreign diplomatic personnel, for the costs of providing such care: and to the dependents of both whether Provided, That reimbursements they are in the United States on offi- . . . shall be credited to the appropria- cial duty or for other reasons. tions against which charges have been (2) Subpart J contains procedures for made for providing such care, except the initiation of collection action when that inpatient medical care may be inpatient care is rendered to bene- provided in the United States without ficiaries from NATO nations and when cost to military personnel and their de- either inpatient or outpatient care is

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rendered to all others enumerated in (i) Twenty-four months of continuous this part. Chapter II, part 4 of active duty, or NAVMED P–5020 is applicable to the (ii) The full period for which that collection of and accounting for such person was called or ordered to active charges. duty. (b) Inpatient control—Each VAB ad- Subpart F—Beneficiaries of Other mitted will be required to conform to Federal Agencies regulations governing the internal administration of the naval facility. Re- § 728.51 General provisions—the strictive or punitive measures, includ- ‘‘Economy Act.’’ ing disciplinary action or denial of The Economy Act, 31 U.S.C. 1535, gen- privileges, will conform as nearly as erally permits agency heads, or heads possible to VA instructions. of major organizational units of agen- (c) Resolution of problems—All prob- cies, to procure goods and services lems pertaining to VABs, including ad- from other agencies or within their mission, medical or other records, and own agency so long as funds for pro- all correspondence will be matters of curement are available, the order is in resolution between the commanding of- the best interest of the Government, ficer of the naval facility and the VA the source from which the goods or office of jurisdiction authorizing ad- services are ordered can produce them mission. Questions of policy and ad- or obtain them by contract, and the in- ministration which cannot be so re- ternal or inter-agency procurement is solved will be forwarded, through the more convenient, or less expensive, normal chain of command, to the Ad- than commercial procurement. Provi- ministrator of Veterans Affairs via sions of the Economy Act apply to re- COMNAVMEDCOM for resolution. quests from other Federal agencies for (d) Care in the United States—(1) Inpa- medical and dental care for bene- tient care. An eligible VAB may be ad- ficiaries for whom they are responsible. mitted to a naval MTF on presentation Consult specific provisions of the Act of a written authorization for admis- respecting financial and acounting lim- sion signed by an official of the VA of- itations and requirements. fice of jurisdiction. Neurological and certain neuropsychiatric patients with- § 728.52 Veterans Administration bene- out obvious evidence of psychosis and ficiaries (VAB). not requiring restraints, and instances (a) Eligible beneficiaries—Those who of suspected tuberculosis, may be ad- have served in the Armed Forces, have mitted for diagnosis. When diagnosed, been separated under conditions other promptly report instances of psychosis, than dishonorable, and have been de- psychoneurosis, and tuberculosis of termined by the Veterans Administra- present clinical significance to the VA tion (VA) to be eligible for care at VA office of jurisdiction with a request for expense. Prior to 7 September 1980, vet- transfer to a VA facility. erans status could be obtained by vir- (i) Extent of care. Provide eligible tue of 1 day’s honorable service. The VABs medical and surgical care, in- following restrictions do not apply to cluding prostheses such as eyes and individuals who are discharged from limbs and appliances such as hearing active duty because of a disability or aids, spectacles, or orthopedic appli- who were discharged for reasons of ances when required for the proper ‘‘early out’’ or hardship program under treatment of the condition upon which 10 U.S.C. 1171 and 1173. eligibility is based. (1) For individuals with an original (ii) Disposition of emergency admission. enlistment in the military service after Notify the appropriate VA office of ju- 7 September 1980, the law generally de- risdiction by message or other expedi- nies benefits, including medical care. tious means within 72 hours after the (2) For individuals entering service date and hour of an emergency admis- after 16 October 1981, the law generally sion of a potential VAB. Include a re- denies medical benefits when such indi- quest for an authorization for admis- viduals do not complete the shorter of: sion and emergency treatment. If VA

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denies VAB status to such a person ad- sponsibility for issuing authorizations mitted in an emergency, the provisions for care and furnishing dispisition in- of § 728.81(a) are applicable. Once ad- structions for VABs in overseas naval mitted in an emergency situation, MTFs: discharage a VAB promptly upon ter- (i) In the Trust Territory of the Pa- mination of the emergency unless ar- cific (Micronesia), VA Office, Honolulu, rangements have been made with the Hawaii. VA office of jurisdiction: (ii) In the Philippines, VA Regional (A) For transfer to a VA treatment Office, Manila, Philippines. facility if further treatment is re- (iii) In Canada, Canadian Department quired. of Veterans Affairs, Ottawa, Canada. (B) To retain the patient as a VAB in (iv) In all other foreign countries, the naval MTF. consular offices of U.S. embassies. (2) Outpatient care. Outpatient care, (f) Forms required. (1) Complete a VA including post hospitalization out- 10–10 (Application for Medical Benefits) patient care, may be provided upon au- when potential VABs are admitted for thorization by the VA office of jurisdic- emergency care without prior author- tion. When outpatient followup care is ization. requested, commanding officers are re- (2) Prepare a VA 10–10m (Medical Cer- sponsible for determining whether ca- tificate and History) when care is ren- pabilities and workload permit pro- dered. All information required in the viding such care. In an emergency, pro- medical certificate thereon will be fur- vide necessary care. nished whether the admission is subse- (3) Physical examinations. Upon a de- quently approved or disapproved by the termination by a naval MTF com- VA office of jurisdiction. manding officer that space, facilities, (3) Since the completion of VA 10– and capabilities exist, naval MTFs may 10m requires an examination of pa- provide physical examinations when re- tients, admissions which are dis- quested by the VA for the purpose of approved will be reported as medical adjudicating claims for VA physical examinations on DD 7A, Report of disability compensation. If authorized Treatment Furnished Pay Patients, by the VA, patients may be admitted Outpatient Treatment Furnished (part when the examination requires more B) (See subpart J). than 1 day. (4) Prepare and submit a DD 7 (Re- (4) Dental care. Limit dental treat- port of Treatment Furnished Pay Pa- ment to inpatients who require serv- tients, Hospitalization Furnished (part ices adjunctive to medical or surgical A)) on all VABs and potential VABs ad- conditions for which hospitalized. mitted (see subpart J). (e) Care outside the United States—(1) (5) Complete an SF 502 (Narrative Eligible beneficiaries. Beneficiaries de- Summary) or SF 539 (Abbreviated Clin- scribed in paragraph (a) of this section ical Record), as appropriate, when a who are citizens of the United States VAB or potential VAB is discharged or and residing or sojourning abroad may, otherwise released. When an interim within the capabilities of the facility report of hospitalization is requested as determined by the commanding offi- by the VA office of jurisdiction, it may cer, be provided inpatient and out- be prepared on an SF 502. patient care upon presentation of an authorization from the appropriate VA § 728.53 Department of Labor, Office of office of jurisdiction listed in para- Workers’ Compensation Programs graph (e)(3) of this section. (OWCP) beneficiaries. (2) Emergency care. Overseas naval (a) Potential beneficiaries. The fol- MTFs furnishing emergency care to po- lowing may be beneficiaries of one of tential VABs will promptly notify the the programs sponsored by the Office of appropriate VA office of jurisdiction Workers’ Compensation Programs and request authorization for treat- (OWC) under the conditions set forth. ment and instructions for disposition They are not beneficiaries of OWCP of the patient. until authorized as such by the appro- (3) Offices of jurisdiction. The fol- priate district officer of OWCP. How- lowing activities are vested with re- ever, they may be carried as potential

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beneficiaries pending OWCP determina- (4) Former Peace Corps enrollees for tion of eligibility. DOD civilian em- injury or disease which is the proxi- ployees provided medical services mate result of their former employ- under a Defense or service health pro- ment with the Peace Corps or which gram are not included under this au- was sustained or contracted while lo- thority (see subpart G). cated with the Peace Corps outside the (1) Members and applicants for mem- United States and its territories. bership in the Reserve Officers’ Train- (5) Former Job Crops enrollees for in- ing Corps of the Navy, Army, and Air jury or disease which is the proximate Force, provided the condition necessi- result of employment with the Job tating treatment was incurred in line Corps. of duty during an off-campus training (6) Former VISTA (Volunteers in regimen. Such care is authorized for in- Service to America) enrollees for injury (a disease or illness which is the jury or disease which is the proximate proximate result of performance of result of employment with VISTA. training is considered an injury) in- (7) Military Sealift Command (MSC) curred while engaged in: civilian marine personnel (i) Training. (CIVMARPERS or CIVMARS) (includ- (ii) Flight instructions. ing temporary employees, intermittent (iii) Travel to or from training or employees, and employees with less flight instructions. than 1 year’s service) are entitled to (2) The following employees of the occupationally related care at the ex- Government of the United States, re- pense of OWCP. CIVMARS are in a gardless of nationality or place of crew status only after reporting to work, are entitled to receive care as their assigned ship. They are in a trav- outlined in paragraph (e) of this sec- el status from crewing point to ship tion for work incurred traumatic inju- and return. While in a travel status, ries at the expense of OWCP. (In addi- they are entitled to the same health tion to injury by accident, a disease or care benefits as other Federal civil illness which is the proximate result of service employees in a travel status (5 performance of employment duties is U.S.C. 8101). CIVMARS presenting for considered an injury.) This category in- treatment with a properly completed cludes but is not limited to: CA–16, Request for Examination and/or (i) Civilian student employees in Treatment, will: training at Navy and Marine Corps fa- (i) Enter the naval MTF’s system cilities. through the occupational medicine (ii) Civilian seamen in the service of service. vessels operated by the Department of (ii) Be treated for any injury or dis- the Army (see paragraph (a)(7) of this ease proximately caused by their em- section and § 728.80(c)(2) for civilian ployment. Although the actual deter- Military Sealift Command (MSC) per- mination of whether an illness or in- sonnel). jury is occupationally related is a func- (iii) All civilian employees of the tion of OWCP, determinations are Government except nonappropriated- based on the required injury report fund-activity employees. Nonappro- along with the treatment record from priate fund employees may be covered the attending physician. Therefore, under the Longshore and Harbor Work- when doubt exists as to the relation- ers’ Compensation Act (contact cog- ship of the condition to the potential nizant district office of OWCP). patient’s employment, the physician (3) Civilian members of the Civil Air should report an unbiased medical con- Patrol (except Civil Air Patrol Cadets) clusion and the medical rationale for injury or disease which is the proxi- therefor, indicating the conditions mate result of active service or travel which are responsible for the claim- to and from such service, rendered in ant’s disability. As a general rule, the performance or support of operational following may be initially considered missions of the Civil Air Patrol under as occupationally related, however, it the direction and written authority of should be emphasized that OWCP is the the Air Force. final approval authority:

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(A) Any injury or illness occurring as properly prepared and signed author- a direct result of employment. May ization from CA–16 (Request for Exam- occur on a ship, at a Government in- ination and/or Treatment). District of- stallation ashore, or in an aircraft fices of OWCP will honor these author- while performing a requirement of em- izations for 60 days unless written no- ployment. tice of termination of authorization is (B) Any injury or illness which be- given earlier. Whereas the CA–16 is comes manifest while away from work used primarily for traumatic injuries, (on leave or liberty) while in a crew it may also be used to authorize exam- status or travel status as long as the ination and treatment for disease or condition may be directly related to illness provided the affected agency job activities or to exposures incident has obtained prior permission from the to travel to ship assignment. cognizant district office of OWCP. If (C) Required immunizations. the condition for which treatment is (D) Required physical examinations. requested appears related to employ- (E) Periodic medical surveillance ment, treatment of beneficiaries in screening examinations for DOD occu- paragraph (a) (1) through (7) of this sec- pational and industrial health pro- tion may be initiated without presen- grams, i.e., asbestos medical surveil- tation of a CA–16. Patients provided lance, hearing conservation, etc. treatment without a CA–16 may be car- (iii) Be referred to a non-Federal ried as OWCP beneficiaries from the source of care where back-to-work care time of initial treatment, provided the may be provided at the CIVMAR’s ex- appropriate district office of OWCP is pense after, if necessary, the imme- notified and requested to submit a CA– diate emergency is alleviated when a 16 within 48 hours giving authorization reasonable determination can be made as of the date of actual treatment. that the injury or illness is not occupa- OWCP will not be liable for payment of tionally related. bills for unauthorized treatment. Post (A) Per 5 U.S.C. 7901(c)(3), the health hospitalization care following author- service program for Federal civilian ized inpatient care does not require an employees is limited to referral of em- additional authorization. First aid ployees, upon their request, to private treatment rendered civilian employees sources of care. does not require an authorization form (B) Long term extended care of (c) Disallowance by OWCP. When chronic illnesses such as hypertension, OWCP determines that any claim diabetes, etc., is not authorized in should be disallowed, OWCP will advise naval MTFs at the expense of OWCP the naval facility rendering care that nor at the CIVMAR’s personal expense. no further treatment should be ren- (C) Patients who cannot be referred, dered at OWCP expense. The patient because of medical reasons or because ceases to be an OWCP beneficiary as of non-Federal sources are not available the date of receipt of the notice of dis- or available but inadequate, may be re- allowance by the naval MTF and the tained in naval MTFs at the expense of patient will be so notified. Any treat- the CIVMAR or of his or her private in- ment subsequent to the date of receipt surance until transfer becomes pos- of the notice of disallowance will be at sible. Although the means of access to the personal expense of the patient (see the naval MTF may have been through § 728.81(a)). the occupational medicine service, re- (d) Authorization for transfer. Prior tention in the naval MTF is on a civil- approval of OWCP is required before a ian humanitarian basis. This is also ap- transfer can be effected, except in an plicable when OWCP disallows a emergency or when immediate treat- CIVMAR’s claim (see paragraph (c) of ment is deemed more appropriate in this section). another Federal facility. When transfer (b) Authorization required. Personnel is effected without approval, the trans- in paragraph (a) (1) through (6) may be ferring facility will immediately re- rendered inpatient and outpatient care quest such authorization from the ap- as outlined in paragraph (e) of this sec- propriate district office of OWCP. tion, unless otherwise stipulated in When authorized by OWCP, evacuation this section, upon presentation of a to the United States can be effected per

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OPNAVINST 4630.25B. Medical records to OWCP, the physician’s report will and a CA–16 will accompany such pa- include: tients. (i) History. (e) Care authorized—(1) Inpatient care. (ii) Physical findings. Medical and surgical care necessary for (iii) Laboratory findings. the proper treatment of the condition (iv) Abstract of hospital records. upon which eligibility is based. Spe- (v) Diagnosis for conditions due to in- cific OWCP authorization is required jury and not due to injury. before major surgical procedures can (vi) Rationalized medical opinion for be performed unless the urgency of the the physician’s belief that the illness situation is such that time does not or disease treated was causally related permit obtaining said authorization. to a specific condition or set of condi- All necessary prostheses, hearing aids, tions to which the claimant was sub- spectacles, and orthopedic appliances jected. will be furnished when required for (vii) Condition on discharge with proper treatment of the condition upon opinion as to degree of impairment due which eligibility is based. Upon specific to injury, if any. authorization, damaged or destroyed (3) Complete and submit, per subpart medical braces, artificial limbs, and J, a DD 7 (Report of Treatment Fur- other orthopedic and prosthetic devices nished Pay Patients, Hospitalization will be replaced or repaired, except Furnished, part A) or DD 7A (Report of that eyeglasses and hearing aids will Treatment Furnished Pay Patients, not be replaced or repaired unless their Outpatient Treatment, part B) when damage or destruction is incidental to outpatient or inpatient care is ren- a personal injury requiring medical dered to any OWCP beneficiary. services. (2) Outpatient care. Complete medical § 728.54 U.S. Public Health Service and surgical care not requiring hos- (USPHS), other than members of pitalization, and posthospitalization the uniformed services. services following authorized inpatient (a) Potential beneficiaries. The fol- care in a naval MTF for the proper lowing may be beneficiaries of the treatment of the condition upon which USPHS for care in naval MTFs upon eligibility is based. submission of the necessary form from (3) Dental care. Limit dental treat- appropriate officials as outlined in ment to emergencies and that care nec- paragraph (b) of this section. essary as an adjunct to inpatient hos- (1) Within and outside the United pital care authorized in advance. Such States. Any individuals the USPHS may care will not include dental prostheses, determine to be eligible for care on an unless specifically authorized, nor or- interagency reimbursable basis. thodontic treatment. (2) Within the 48 Contiguous United (f) Reports and records. (1) Copies of States and the District of Columbia. medical records will accompany OWCP American Indians, Alaska Natives, Es- patients being transferred from one kimos, and Aleuts. medical treatment facility to another. (3) In Alaska. American Indians, Eski- Records accompanying OWCP patients mos, and Aleuts. to a debarkation hospital will be the (b) Authorization required—(1) Normal same as for military personnel and will circumstances. An American Indian or clearly identify the patient as an Alaska Native may be rendered inpa- OWCP beneficiary. tient care upon presentation of form (2) Forward a CA–20 (Attending Phy- HRSA 43 (Contract Health Service Pur- sician’s Report) to the appropriate dis- chase Order for Hospital Services Ren- trict office of OWCP on discharge of dered) or HRSA form 64 (Purchase/De- the patient unless hospitalization ex- livery Order for Contract Health Serv- ceeds 1 month. In such instances, a re- ices Other Than Hospital Inpatient or port will be submitted every 30 days. Dental). Either form must be signed by When extensive hospitalization is re- an appropriate Indian Health Service quired, use an SF 502 or a narrative for- or Alaska Native Health Service area/ mat in lieu of CA–20. When submitted program official.

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(2) Emergencies. In an emergency, care for central collection of the cost of may be rendered upon written request care provided. of patient’s commanding officer or su- (a) Federal Bureau of Investigation. In- perior officer, or the patient if neither vestigative employees of the Federal of the above is available. When emer- Bureau of Investigation (FBI) and ap- gency care is rendered without prior plicants for employment as special authorization, the facility rendering agents with the FBI may be provided: care must notify the service unit direc- (1) Immunizations. tor of the patient’s home reservation (2) Physical examinations and hos- within 72 hours from the time such pitalization when required to deter- care is rendered unless extenuating cir- mine physical fitness. Use this period cumstances preclude prompt notifica- of hospitalization for diagnostic pur- tion. poses only. Do not correct disquali- (c) Care authorized. Unless limited by fying defects. the provisions stipulated in paragraph (b) U.S. Marshals. U.S. Marshals may (a) of this section and subject to the receive physical examinations and hos- provisions of § 728.3, the following care pitalizations when required to deter- may be rendered, when requested, to mine physical fitness. Use this period all beneficiaries enumerated in para- of hospitalization for diagnostic pur- graph (a) of this section. poses only. Do not correct disquali- (1) Inpatient care. Necessary medical fying defects. and surgical care. (c) Claimants against the United States. (2) Outpatient care. Necessary medical Claimants whose suits or claims and surgical care. against the United States are being de- (3) Dental care. (i) Limit dental care fended by the Department of Justice in the United States, its territories, may be furnished physical examina- possessions, and the Commonwealth of tions to determine the extent and na- Puerto Rico to emergencies for the re- ture of the injuries or disabilities being lief of pain or acute conditions and claimed. Hospitalization is authorized that necessary as an adjunct to inpa- for proper conduct of the examination. tient hospital care. Prosthetic dental Upon completion, forward the report of appliances and permanent restorations the examination promptly to the U.S. are not authorized. Attorney involved. (ii) In overseas areas, dental care is authorized to the extent necessary § 728.56 Treasury Department bene- pending the patient’s return to the ficiaries. United States, its territories, posses- (a) Potential beneficiaries. The fol- sions, or the Commonwealth of Puerto lowing may be beneficiaries of the Rico. Treasury Department and may be ren- (d) Report. Complete and submit, per dered care as set forth below. subpart J, a DD 7 (Report of Treatment (1) Secret Service Special Agents and Furnished Pay Patients, Hospitaliza- support personnel. tion Furnished, part A) or a DD 7A (Re- (2) Secret Service Agents providing port of Treatment Furnished Pay Pa- protection to certain individuals. tients, Outpatient Treatment, part B) (3) Persons being provided protection when outpatient or inpatient care is by the Secret Service. rendered. (4) Agents of the U.S. Customs Serv- ice. § 728.55 Department of Justice bene- (5) Prisoners (detainees) of the U.S. ficiaries. Customs Service. Upon presentation of a letter of au- (b) Care authorized. (1) Secret Service thorization that includes disposition of Special Agents may be provided rou- SF 88 (Report of Medical Examination), tine annual physical examinations SF 93 (Report of Medical History), and upon request and presentation of a let- address for submission of claim, the ter of authorization. Conduct and following personnel may be furnished record examinations in the same man- requested care as beneficiaries of the ner as routine examinations rendered Department of Justice. See subpart J naval officers except that they may be on completing and submitting forms conducted only on an outpatient basis.

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If hospitalization is considered desir- § 728.57 Department of State and asso- able in connection with an examina- ciated agencies. tion, patient administration depart- Eligibility for care under the provi- ment personnel will contact the United sions of this section will be determined States Secret Service at (202) 535–5641 by the Department of State, Office of at the address in paragraph (c) of this 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. (3) Agents of the U.S. Customs Serv- (1) Department of State-U.S.Arms ice and their prisoners (detainees) may Control and Disarmament Agency and be provided emergency medical treat- the Office of International Conferences. ment and evacuation services to the (2) U.S. Agency for International De- nearest medical facility (military or ci- velopment. vilian) in those remote areas of the (3) International Communications United States where no other such Agency. services are available. Limit evacu- (4) ACTION—Peace Corps Staff. ation to the continental United States and do not cross borders. The Navy’s (5) Department of Agriculture—For- responsibility for medical care of such eign Agriculture Service. prisoners terminates once the medical (6) Department of Commerce—Bureau emergency has been resolved. Guarding of Public Roads. of prisoners, while they or their cap- (7) Department of Interior—Bureau of tors are receiving treatment at naval Reclamation and the U.S. Geological MTFs, remains the responsibility of Survey. the U.S. Customs Service or other ap- (8) Department of Transportation— propriate Federal (nonmilitary) law en- Federal Aviation Administration and forcement agencies. the Federal Highway Administration. (c) Reports and records. (1) When ex- (9) Department of Justice—Drug En- aminations are rendered to Secret forcement Agency. Service Special Agents and support (10) Department of Treasury—U.S. personnel, forward one copy of the SF Customs, U.S. Secret Service, Office of 88, one copy of the SF 93, and one copy International Affairs (OIA), U.S.— of any forms provided with the letter of Saudi Arabian Joint Commission for authorization to United States Secret Economic Cooperation (JECOR), and Service, Administrative Operations Di- the Internal Revenue Service. vision, Safety and Health Branch, 1800 (11) National Aeronautics and Space G Street, NW., Room 845, Washington, Administration. DC 20223 or as otherwise directed by the letter of authorization. Provide an (12) Library of Congress. information copy to the Deputy Comp- (13) Beneficiaries of such other agen- troller of the Navy. cies as may be included in the Depart- (2) Complete and submit, per subpart ment of State Medical Program. J, a DD 7 (Report of Treatment Fur- (b) Care authorized—(1) General. The nished Pay Patients, Hospitalization Foreign Service Act of 1946, as amend- Furnished, part A) or DD 7A (Report of ed, authorizes care delineated in this Treatment Furnished Pay Patients, section. Subject to the restrictions and Outpatient Treatment, part B) when priorities of § 728.3 and the restrictions outpatient or inpatient care is ren- of this section, care may be rendered at dered. the expense of the Department of State

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or one of the agencies listed in para- ness or injury incurred while outside graph (a) of this section. The law al- the United States. lows for payment when care is fur- (4) Physical examinations. The Sec- nished for an illness or injury which re- retary of State is authorized to provide sults in hospitalization or equal treat- for comprehensive physical examina- ment. Outpatient care is only author- tions, including dental examinations ized as an adjunct to hospitalization. and other specific testing, of applicants (2) Overseas. (i) When, in the opinion for employment and for officers and of the principal or administrative offi- employees of the Foreign Service who cer of an overseas post of the Depart- are U.S. citizens and for their depend- ment of State, an individual meets the ents, including examinations necessary conditions of eligibility, the post will to establish disability or incapacity for furnish authorization to the naval retirement purposes. An authorization MTF for care at the expense of the De- will be executed by an appropriate De- partment of State or one of the agen- partment of State official and fur- cies listed in paragraph (a) of this sec- nished in duplicate to the naval MTF, tion. listing the type of examination re- (ii) Should the Department of State quired and stating that the individual official determine that the illness or is entitled to services at the expense of injury does not meet the conditions of the Department of State. Furnish re- eligibility for care at the expense of ports per the letter of authorization. one of the agencies, all care provided (5) Immunizations. Inoculations and will be at the expense of the patient or vaccinations are authorized for offi- patient’s sponsor and charged at the cers, employees, and their dependents full reimbursement rate. upon written authorization from an ap- (3) In the United States. (i) Care is not propriate Department of State official. authorized for an injury or illness in- This authorization, in duplicate, will curred in the United States. Authoriza- include the type of inoculation or vac- tions and other arrangements for care cination required and will state that in the United States for individuals in- the individual is entitled to services at curring injury or illness outside the the expense of the Department of United States will be provided by the State. Furnish reports per the letter of Deputy Assistant Secretary for Med- authorization. ical Services, Department of State, using appropriate authorization (6) Dental care. Limit dental care to form(s). When personnel are admitted emergencies for the relief of pain or in an emergency without prior author- acute conditions, or dental conditions ization, the commanding officer of the as an adjunct to inpatient care. Do not admitting naval MTF will immediately provide prosthetic dental appliances. request authorization from the Deputy (c) Evacuation to the United States. Assistant Secretary for Medical Serv- Should a beneficiary in an overseas ices. naval MTF require prolonged hos- (ii) The extent of care furnished in pitalization, the commanding officer of the United States, to individuals in the overseas facility will report the re- paragraph (a) of this section who are quirement to the nearest Department evacuated to the United States for of State principal or administrative of- medical reasons, will be comparable in ficer and request authority to return all respects to that which is authorized the patient to the United States. Re- or prescribed for these individuals out- lease dependents who decline evacu- side the United States. When deter- ation to the custody of their sponsor. mined appropriate by the Deputy As- Aeromedical evacuation may be used sistant Secretary for Medical Services, per OPNAVINST 4630.25B. Travel of an officers and employees and their ac- attendant or attendants is authorized companying dependents who have re- at Department of State expense when turned to the United States for non- the patient is too ill or too young to medical reasons may be furnished med- travel unattended. ical care at the expense of one of the (d) Report. Complete and submit, per above agencies for treatment of an ill- subpart J, a DD 7 (Report of Treatment

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Furnished Pay Patients, Hospitaliza- quests, report such examinations of tion Furnished, part A) or DD 7A (Re- Peace Corps volunteers on SF–88 and port of Treatment Furnished Pay Pa- SF–93. Include: tients, Outpatient Treatment, part B) (A) Medical history and systemic re- when outpatient or inpatient care is view. rendered. (B) Chest x-ray with interpretation. (C) Complete urinalysis, serology, § 728.58 Federal Aviation Agency and blood type. (FAA) beneficiaries. (D) Pelvic examination and Pap (a) Beneficiaries. Air Traffic Control smear for all female volunteers. Specialists (ATCS) of the FAA when (E) Hematocrit or hemoglobin for all appropriate authorization has been fur- females and for all males over 40 years nished by the FAA regional representa- of age. tive. (F) Electrocardiogram for all volun- (b) Authorization. Written authoriza- teers over 40 years of age. tion from an FAA Regional Flight Sur- (2) Immunizations. Immunizations, as geon is required and will include in- requested, may be provided all bene- structions for forwarding the results of ficiaries listed in paragraph (a) of this services rendered. section. (c) Care authorized. Subject to the (3) Medical care. Both inpatient and provisions of § 728.3, authorized per- outpatient care may be provided volun- sonnel may be rendered chest x-rays, teers for illnesses or injuries occurring electrocardiograms, basic blood chem- during their period of service which in- istries, and audiograms, without inter- cludes all periods of training. Depend- pretation in support of the medical sur- ents of volunteers specified in para- veillance program for ATCS personnel graph (a)(3) of this section are author- established by the FAA. ized care to the same extent as their (d) Report. Complete and submit, per sponsor. subpart J, a DD 7A (Report of Treat- (4) Dental care. Limit dental care to ment Furnished Pay Patients, Out- emergencies. Render only that care es- patient Treatment, part B) outpatient sential to relieve pain or prevent immi- care is rendered. nent loss of teeth. All beneficiaries seeking dental care will be requested, § 728.59 Peace Corps beneficiaries. whenever possible, to furnish advanced (a) Potential beneficiaries. (1) Appli- authorization. cants for the Peace Corps. (c) Care authorized outside the United (2) Peace Corps Volunteers. States—(1) Physical examinations. Ter- (3) Minor children of a Peace Corps mination physical examinations may volunteer living with the volunteer. be provided volunteers and eligible de- (b) Care authorized in the United pendents of volunteers. In most in- States. Upon written request of a Peace stances, Peace Corps staff physicians Corps official, stating care to be pro- will provide these examinations; how- vided and disposition of reports, the ever, help may be required of naval following may be provided subject to MTFs for ancillary services. the provisions of § 728.3. (2) Immunizations. When requested, (1) Physical examinations. Physical ex- immunizations may be provided all aminations are authorized on an out- beneficiaries listed in paragraph (a) of patient basis only. Except for interpre- this section. tation of x-rays, make no assessment (3) Medical care. When requested in of the physical qualifications of writing by a representative or physi- examinees. cian of a Peace Corps foreign service (i) Preselection physical examination post, volunteers, eligible dependents of may be provided applicants (volun- volunteers, and trainees of the Peace teers) for the Peace Corps. Corps may be provided necessary med- (ii) Separation or other special physical care at Peace Corps expense. When ical examinations may be provided vol- emergency treatment is rendered with- unteers and their dependents as listed out prior approval, forward a request in paragraph (a)(3) of this section. Un- to the Peace Corps foreign service post less otherwise prescribed in written re- as soon as possible.

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(4) Dental care. Limit dental care to providing needed services. However, emergencies. Render only that care es- upon presentation of an appropriate sential to relieve pain or prevent immi- authorization, the following services nent loss of teeth. All beneficiaries may be rendered subject to the provi- seeking dental care will be requested, sions of § 728.3. whenever possible, to furnish advanced (1) Job Corps enrollees are authorized authorization. emergency medical care upon presen- (5) Evacuation to the United States. tation of their Job Corps Identification When a beneficiary in an overseas Card; however, the corpsmember’s Job naval MTF requires prolonged hos- Corps center should be notified imme- pitalization, the commanding officer of diately. the overseas facility will report the re- (2) Job Corps applicants may be pro- quirement to the nearest Peace Corps vided preenrollment physical examina- foreign service post and request au- tions and immunizations on an out- thorization to return the patient to the patient basis only. United States. Releases custody of de- (3) Job Corps enrollees, VISTA train- pendents to their sponsor when evacu- ees, and VISTA volunteers are author- ation is declined. Aeromedical evacu- ized: ation may be used per OPNAVINST (i) Outpatient medical examinations, 4630.25B. Travel of attendant(s) is au- outpatient treatment, and immuniza- thorized when the patient is too ill or tions. too young to travel unattended. (ii) Inpatient care for medical and (d) Report. Complete and submit, per surgical conditions which, in the opin- subpart J, a DD 7 (Report of Treatment ion of the attending physician, will Furnished Pay Patients, Hospitaliza- benefit from definitive care within a tion Furnished, part A) or DD 7A (Re- reasonable period of time. When found port of Treatment Furnished Pay Pa- probable that a patient will require tients, Outpatient Treatment, part B) hospitalization in excess of 45 days, no- when outpatient or inpatient care is tify the Commander, Naval Medical rendered. Command (MEDCOM–33) by the most § 728.60 Job Corps and Volunteers in expeditious means. Service to America (VISTA) bene- (iii) Limit dental care to emer- ficiaries. gencies. Render only that care essen- (a) Beneficiaries. Job Corps and tial to relieve pain or prevent immi- VISTA enrollees and Job Corps appli- nent loss of teeth. Beneficiaries seek- cants may be provided services as set ing dental care will be requested to fur- forth. For former members, see § 728.53. nish, whenever possible, advanced au- (b) Authorization required—(1) Job thorization. Corps enrollees. Presentation of a Job (d) Report. Complete and submit, per Corps Identification Card after ap- subpart J, a DD 7 (Report of Treatment pointment has been made by the corps- Furnished Pay Patients, Hospitaliza- member’s Job Corps center. tion Furnished, part A) or DD 7A (Re- (2) Job Corps applicants. Presentation port of Treatment Furnished Pay Pa- of a letter from a screening agency tients, Outpatient Treatment, part B) (e.g., State Employment Service) after when outpatient or inpatient care is an appointment has been made by that rendered. agency. (3) VISTA Volunteers and VISTA § 728.61 Medicare beneficiaries. Trainees. A ‘‘Blue-Cross and Blue (a) Care authorized. Emergency hos- Shield Identification Card’’ is issued to pitalization and other emergency serv- such personnel as identification. Each ices are authorized for beneficiaries of card has a VISTA identification num- the Social Security Health Insurance ber which will be used on all records Program for the Aged and Disabled and correspondence. (Medicare) who reside in the 50 United (c) Care authorized. Normally, med- States and the District of Columbia, ical services are provided only when ci- Guam, Puerto Rico, the Virgin Islands, vilian of VA facilities are not avail- American Samoa, and the Northern able. or if available, are incapable of Mariana Islands. Such care in naval

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MTFs may be rendered when emer- (1) Former women members of the gency services, as defined in § 728.61(b), Army, Air Force, Navy, and Marine are necessary. Corps. (b) Emergency services. Services pro- (2) On or after 12 August 1985, former vided in a hospital emergency room women members of the Commissioned after the sudden onset of a medical Corps of the United States Public condition manifesting itself by acute Health Service (USPHS) and the Na- symptoms of sufficient severity (in- tional Oceanic and Atmospheric Ad- cluding severe pain) such that the ab- ministration (NOAA). sence of immediate medical attention (b) Care authorized. (1) Former women could reasonably be expected to result members may be rendered medical and in: surgical care in naval MTFs incident to (1) Placing the patient’s health in se- that pregnancy, prenatal care, hos- rious jeopardy. pitalization, postnatal care, and, when requirements of SECNAVINST 6300.2A (2) Serious impairment to bodily are met, abortions. Limit postnatal functions of serious dysfunction of any care to 6 weeks following delivery. Do bodily organ or part. not promise civilian sources under any (c) General provisions—(1) Limitations. circumstances for either the mother or Benefit payments for emergency serv- the infant as such care is not author- ices under Medicare can be made for ized. only that period of time during which (2) Treatment of the newborn infant the emergency exists. Therefore, when in USMTFs includes care, both inpa- the emergency is terminated and it is tient and outpatient, only during the permissible from a medical standpoint, first 6 weeks (42 days) following deliv- discharge or transfer the patient to a ery. If the newborn infant requires care facility that participates in Medicare. beyond the 6-weeks postnatal period, (2) Notification. Notify the nearest of- the mother or other responsible family fice of the Social Security Administra- member must make arrangements for tion as soon as possible when a Medi- disposition to private, State, welfare, care beneficiary is rendered treatment. or another Federal facility. (d) Report. Complete and submit, per (c) Application for care. In making ap- subpart J, a DD 7 (Report of Treatment plication for care authorized by this Furnished Pay Patients, Hospitaliza- section, former women members should tion Furnished, part A) or DD 7A (Re- apply either in person or in writing to port of Treatment Furnished Pay Pa- the Armed Forces inpatient MTF near- tients, Outpatient Treatment, part B) est their home and present either their when outpatient or inpatient care is DD 214 (Armed Forces of the United rendered. States Report of Transfer or Discharge) or DD 256A (Honorable Discharge Cer- tificate) as proof of eligibility for re- Subpart G—Other Persons quested care. In areas with more than one Armed Forces MTF available and § 728.71 Ex-service maternity care. capable of providing required care, ap- (a) Eligible beneficiaries. After separa- plication should be made to the MTF of tion from the service under honorable the service from which separated, as conditions because of pregnancy, or applicable. Disengagement in such separated from the service under hon- areas to MTFs of other services may be orable conditions and found to have made only when space is not available been pregnant at the time of separa- or capability does not exist in the MTF tion, the following former members of the services from which the indi- and their newborn infant(s) may be vidual was separated. provided care as set forth below. The (d) Charges and collection. Charges rendering of this care is subject to the and reimbursement procedures for care provisions of § 728.3. When certified by rendered to beneficiaries in paragraph medical authorities that the pregnancy (a)(2) of this section are the same as existed prior to entry into service prescribed by current regulations for (EPTE), maternity benefits are not au- active Coast Guard, USPHS, and NOAA thorized. members.

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§ 728.72 Applicants for enrollment in § 728.75 Applicants for cadetship at the Senior Reserve Officers’ Train- service academies and applicants ing Program. for the Uniformed Services Univer- When properly authorized, designated sity of Health Sciences (USUHS). applicants (including applicants for en- (a) Upon presentation of a letter of rollment in the 2-year program and authorization from the Department of Military Science II enrollees applying Defense Medical Examination Review for Military Science III) may be fur- Board (DODMERB), applicants for ca- nished medical examinations at naval detship at Service Academies (Navy, MTFs including hospitalization nec- Army, Air Force, Coast Guard, and essary for the proper conduct thereof. Merchant Marine) and applicants for Medical care, including hospitaliza- the Uniformed Services University of tion, is authorized for diseases con- Health Sciences (USUHS) will be fur- tracted or injuries incurred in line of nished medical examinations at facili- duty while at or traveling to or from a ties designated by the DODMERB. Hos- military installation for the purpose of pitalization is authorized when quali- undergoing medical or other examina- fications for service cannot otherwise tions or for visits of observation. be determined. Use the hospitalization period for diagnostic purposes only, § 728.73 Applicants for enlistment or and not to correct disqualifying or reenlistment in the Armed Forces, other defects. Perform examinations and applicants for enlistment in the and make disposition of completed reserve components. forms per BUMEDINST 6120.3M. (a) Upon referral by a commander of (b) Applicants who suffer injury or a Military Enlistment Processing Sta- acute illness while awaiting or under- tion (MEPS), applicants will be fur- going processing at Navy and Marine nished necessary medical examina- Corps facilities or at MEPS may be fur- tions, including hospitalization when nished emergency medical and dental qualifications for service cannot other- care, including emergency hospitaliza- wise be determined. Use the hos- tion, for that injury or illness. pitalization period only for diagnostic purposes. Do not correct disqualifying § 728.76 Naval Home residents. defects. Provide necessary medical and dental (b) Applicants who suffer injury or care, both inpatient and outpatient, to acute illness while awaiting or under- residents of the Naval Home when re- going processing at Navy and Marine quested by the Governor of the Home. Corps facilities or MEPS may be fur- In an emergency, care may be rendered nished emergency medical and dental without prior approval of the Gov- care, including emergency hospitaliza- ernor; however, the Governor of the tion, for that injury or illness. Home should be contacted immediately § 728.74 Applicants for appointment in and requested to furnish authorization. the regular Navy or Marine Corps and reserve components, including § 728.77 Secretarial designees. members of the reserve components Subject to the capabilities of the pro- who apply for active duty. fessional staff and the availability of (a) Necessary medical examinations space and facilities, naval MTFs and may be furnished, including hos- DTFs will provide treatment to indi- pitalization when qualifications for viduals that have been granted Secre- service cannot otherwise be deter- tarial designee status by any of the mined. Use such a period of hospitaliza- three service Secretaries (Navy, Army, tion only for diagnostic purposes. Do or Air Force), the Secretary of Com- not correct disqualifying defects. merce for NOAA personnel, the Sec- (b) Applicants who suffer injury or retary of Health and Human Services acute illness while awaiting or under- for USPHS personnel, or the Secretary going processing at Navy and Marine of Transportation for Coast Guard per- Corps facilities or MEPS may be fur- sonnel. nished emergency medical and dental (a) Potential designees. Upon a show- care, including emergency hospitaliza- ing of sufficient cause, the Secretary of tion, for that injury or illness. the Navy may authorize individuals,

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not otherwise authorized by law, to re- (7) In other instances wherein the cir- ceive such care as is available in naval cumstances clearly merit the providing MTFs in the United States. Designa- of treatment in naval MTFs, and in tion may be extended on a worldwide which the best interest of the patient, basis for preadoptive children and the Navy, and the Government will be wards of active duty members, and for served, favorable Secretarial action abused dependents delineated in para- may result. The mere need of medical graph (a)(6) of this section. Temporary care by a former beneficiary or other in loco parents or foster parent status person, alone, will not support ap- of the member with regard to a minor proval of such a request. is insufficient for approval. Also, civil- (b) Requests for consideration. Re- ian health care under the CHAMPUS quests for consideration will be sub- program cannot be authorized for other mitted to the Commander, Naval Med- than abused dependents. The Sec- ical Command (MEDCOM–33) by appli- retary’s discretionary authority is ex- cants via their command, when appli- ercised most conservatively, however, cable, or by the Medical Department favorable action is usually taken on re- command concerned. Requests should quests involving the following situa- include any pertinent information tions: which will support resolution and a re- (1) Preadoption proceedings wherein turn address. Requests involving: an active duty member or a retired (1) Preadoption must include a leg- member has taken affirmative legal ac- ible reproducible copy of an interim tion to adopt a child. court order or adoption agency place- (2) Custodianships and guardianships ment agreement which names the spon- authorized by a court order wherein sor and identifies the other partici- the member is designated by the court pating parties. A petition for a court as the custodian or guardian and the order is insufficient to support a recommendation for approval. child is fully dependent upon the active (2) Custodianships and guardianships duty or retired member sponsor. must include a legible reproducible (3) Evaluation and selection of non- copy of the court order, identification beneficiaries who are donor candidates of the parties, and also identify any for an organ or tissue transplant proce- amounts of income to which the ward dure in behalf of a military service is entitled. beneficiary. (3) Participants in clinical research (4) Nonbeneficiary participants in of- studies must include: ficially approved clinical research (i) Sufficient clinical information studies. concerning the nature of the study. (5) Unremarried former spouses who: (ii) Benefits which may accrue to the Require care for a condition incurred individual. during or caused/aggravated by condi- (iii) The extent, if any, to which actions associated with the member’s or cess by other authorized beneficiaries former member’s creditable service; do will be impaired. not qualify under the former spouses (iv) Benefits which will accrue to the act; and do not have medical coverage command, e.g., enhancement of train- under an employer-sponsored health ing, maximum use of specialized facili- plan which will provide for the care re- ties, etc. quired. (v) Recommended duration of des- (6) Abused dependents of discharged ignation. or dismissed former uniformed services (vi) Whether the consenting indi- members in need of medical or dental vidual has been informed concerning care resulting from knowledge of the the nature of the study, its personal abuse or for an injury or illness result- implications, and freely consents. ing from abuse by the former member. (4) Unremarried former spouses must Eligibility will terminate the earliest include: of 1 year after the date on which the (i) A notarized copy of the marriage member is discharged or dismissed license. from a uniformed service, or when care (ii) A statement attesting to the fact is no longer needed. that the sponsoring former spouse

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achieved 20 or more years of creditable (viii) The Under Secretary of Defense military service. for Policy. (iii) Copy of divorce decree with offi- (ix) The Under Secretary of Defense cial date. for Research and Engineering. (5) Abused depdendents must include: (x) The Secretaries, Under Secre- (i) Full name, social security num- taries, and the Assistant Secretaries of ber, grade or rate, branch or service, the Military Departments. and date and type of discharge or dis- (d) Authorization. Designees will missal of the former member. Such a present a signed letter bearing the let- member must have received a dishon- terhead of the designating service. Sec- orable or bad-conduct discharge or dis- retarial designees are not included in missal from a uniformed service as a the DEERS data base and may not pos- result of court-martial conviction for sess Government identification cards. an offense involving abuse of a depend- Therefore, the only proof of their eligi- ent of the member. bility for treatment may be the letter (ii) Full names, social security num- of authorization. When a Secretarial bers (if assigned), and relationship to designee presents for treatment: the former member of any dependent in (1) Ask for identification of the indi- need of medical or dental care to treat vidual presenting the letter of author- adverse health conditions resulting ization to assure that the person seek- from such dependent’s knowledge of ing care is the individual to whom the the abuse or any injury or illness suf- letter was issued. fered by the abused person as a result (2) Check the expiration date on the of such abuse. letter of authorization. Many author- (c) Blanket designation. (1) The Sec- izations are issued for only a specified retary of Defense has granted Secre- period of time, e.g., abused depend- tarial designee status to full-time ents—no longer than 1 year. Schedule ‘‘A’’ faculty members of the (3) Check to assure that the indi- Uniformed Services University of vidual is applying for care authorized Health Sciences (USUHS). They have by the letter of authorization. Designa- been provided documentation substan- tion is often granted for a specific diag- tiating their eligibility and, where nec- nosis or specific mode of treatment. essary, an eligibility termination date. (4) Check to assure that the indi- These personnel are authorized routine vidual has not been designated for care care at the Naval Hospital, Bethesda, only as specific facility. Many author- MD. At other naval MTFs, only emer- izations are granted for conditions or gency treatment is authorized while for care that can be rendered only by a they are traveling on official univer- specified physician or under a specific sity business. The letter of authoriza- program. tion excludes routine dental care, pros- (5) Place a copy of the letter of au- thetic appliances, and spectacles. thorization in the individual’s Health Record or outpatient treatment record (2) The following officials within the on the left side at the first visit or ad- Government, the Department of De- mission. fense, and military departments have (e) Charges and collection. (1) Inter- been granted blanket Secretarial des- agency rates are applicable for inpa- ignation for medical and emergency tient and outpatient care provided out- dental care in naval MTFs in the side the National Capital Region to all United States: individuals listed in paragraph (c)(2) of (i) The President. this section with the exception of (ii) The Vice President. Members of Congress. Charges are at (iii) Members of the Cabinet. full reimbursement rates for Members (iv) Article III Federal Judges. of Congress provided inpatient or out- (v) U.S. Court of Military Appeals patient care outside the National Cap- Judges. ital Region. (vi) Members of Congress. (2) In the National Capital Region: (vii) The Secretary, Deputy Sec- (i) Charges are waived for outpatient retary, and the Assistant Secretaries of care provided to all categories listed in Defense. paragraph (c)(2) of this section.

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(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 outpatient or inpatient care is ren- records, including all clinical records dered to Secretarial designees whose and x-ray films, to the Medical Direc- charges for care have not been waived. tor, National Headquarters, American Red Cross, 20th and D Street NW., § 728.78 American Red Cross rep- Washington, DC 20006. resentatives and their dependents. (d) Charges and collection. Charge (a) Potential beneficiaries. beneficiaries in paragraph (a) (1) and (1) Volunteer workers. (2) of this section the rate applicable to (2) Full-time, paid employees. officer personnel and dependents in (3) Dependents of personnel enumer- paragraph (a)(3) of this section the de- ated in paragraph (a) (1) and (2) of this pendent rate. Complete and submit, per section when accompanying their spon- subpart J, a DD 7 (Report of Treatment sor outside the continental United Furnished Pay Patients, Hospitaliza- States, including Alaska, Hawaii, and tion Furnished, part A) or DD 7A (Re- Puerto Rico. port of Treatment Furnished Pay Pa- (b) Care authorized. (1) When services tients, Outpatient Treatment, part B) of the American Red Cross (ARC) have when outpatient or inpatient care is been accepted in behalf of the Federal rendered to ARC personnel or to their Government under applicable DOD reg- dependents. ulations, beneficiaries in paragraph (a)(1) of this section are considered § 728.79 Employees of Federal contrac- ‘‘employees’’ of the Government for the tors and subcontractors. purpose of this part and are authorized (a) Beneficiaries. (1) U.S. citizen con- health care in USMTFs, both in and tractor, engineering, and technical outside the United States for work-re- service personnel designated as U.S. lated conditions. See § 728.53(a)(2) re- Navy Technicians. garding the specific application of this (2) Civilian employees of contractors authorization. and subcontractors operating under (2) Beneficiaries enumerated in para- U.S. Government contracts. graph (a) (1) and (2) of this section are (3) Dependents of personnel enumer- authorized health care in USMTFs lo- ated in paragraph (a) (1) and (2) of this cated outside the United States for section when accompanying their spon- both work and nonwork-related condi- sor outside the continental United tions. See § 728.53(a)(2) for treatment of States or in Alaska. work-related conditions of those in (b) Care authorized. (1) Beneficiaries paragraph (a)(1) of this section. identified in paragraph (a) (1) and (2) of (3) Beneficiaries identified in para- this section may be provided emer- graph (a) (1), (2), and (3) of this section gency care in naval MTFs for illnesses are authorized emergency care in and injuries occurring at work in or USMTFs outside the continental outside the United States. United States, including Alaska, Ha- (2) While serving outside the conti- waii, and Puerto Rico where facilities nental United States or in Alaska, are not otherwise available in reason- where facilities are not otherwise ably accessible and appropriate non- available in reasonably accessible and Federal hospitals. Provide hospitaliza- appropriate non-Federal facilities, tion only for acute medical and sur- beneficiaries identified in paragraph (a) gical conditions, exclusive of nervous, (1), (2), and (3) of this section may re- mental, or contagious diseases or those ceive hospitalization and necessary

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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 ized on a space available basis provided the performance of duty, including dis- facilities are not otherwise available in eases proximately caused by conditions reasonably accessible and appropriate of employment (see § 728.53). non-Federal facilities. (c) Charges and collection. Care is au- (2) Federal civil service employees thorized on a reimbursable basis. Com- and applicants for such employment plete and submit, per subpart J, a DD 7 are authorized services as outlined in (Report of Treatment Furnished Pay chapter 22, section XIII, of the Manual Patients, Hospitalization Furnished, of the Medical Department part A) or DD 7A (Report of Treatment (MANMED). When appropriated fund Furnished Pay Patients, Outpatient and nonappropriated fund employees, Treatment, part B) when outpatient or including unpaid volunteer employees, inpatient care is rendered. require emergency and nonemergency occupational health services due to an § 728.80 U.S. Government employees. illness or an injury on the job, provide (a) Civil service employees of all Fed- this limited care through your occupa- eral agencies, including teachers em- tional health service, emergency room, ployed by Department of Defense De- or evening primary care clinic, as ap- pendent’s Schools (DODDS) and their propriate. This care is rendered free of dependents, may be provided hos- charge to the employee, the employee’s pitalization and necessary outpatient command, or insurance carrier. In- services, (other than occupational cluded with this group are Military health services), on a reimbursable Sealift Command (MSC) civilian ma- basis, outside the continental limits of rine personnel (authorized additional the United States and in Alaska, where care and services as outlined in facilities are not otherwise available in BUMINST 6320.52 and care under reasonably accessible and appropriate § 728.53(a)(7)) and members of the Na- non-Federal hospitals. Except for em- tional Oceanic and Atmospheric Ad- ployees who are serving aboard naval ministration (NOAA) serving with the vessels, hospitalization may be fur- Navy. nished only for acute medical and sur- (3) Under the technical control of the gical conditions, exclusive of nervous, Surgeon General of the Army, the DOD mental, or contagious diseases or those Civilian Employees’ Health Service is requiring domiciliary care. Routine dental care, other than dental pros- responsible for administering the thesis and orthodontia, is authorized health program for all Federal civil on a space available basis provided fa- service employees in the District of Co- cilities are not otherwise available in lumbia area. reasonably accessible and appropriate (d) Care, other than occupational non-Federal facilities. health services, is provided on a reim- (b) Such civilian employees and their bursable basis. Complete and submit, dependents may be provided medical, per subpart J, a DD 7 (Report of Treat- surgical, dental treatment, hospitaliza- ment Furnished Pay Patients, Hos- tion, and optometric care at installa- pitalization Furnished, part A) or DD tions in the United States which have 7A (Report of Treatment Furnished been designated remote by the Sec- Pay Patients, Outpatient Treatment, retary of the Navy for the purpose of part B) when outpatient or inpatient providing medical care. care is rendered.

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§ 728.81 Other civilians. (iv) Civilians competing in Navy or Marine Corps sponsored competitive (a) General. In an emergency, any meets. person may be rendered care in naval (v) Members of Little League teams MTFs to prevent undue suffering or and Youth Conservation groups. loss of life or limb. Limit care to that (vi) Boy Scouts and Girl Scouts of necessary only during the period of the America. emergency, and if further treatment is (4) Other civilian personnel included indicated, initiate action to transfer below are not normally eligible for the patient to a private physician or ci- care in naval MTFs; however, under vilian facility as soon as possible. Fur- the conditions set forth, care may be ther, subject to the provisions of §728.3, rendered. the following personnel are authorized (i) Potential beneficiaries. care as set forth. (A) Civilian representatives of reli- (b) Beneficiaries and extent of care. (1) gious groups. Provide all occupational health serv- (B) Educational institutions rep- ices to civilian employees paid from resentatives. nonappropriated funds, including Navy (C) Athletic clinic instructors. exchange employees and service club (D) USO representatives. employees, free of charge (see § 728.80(c)(2)). Provide treatment of oc- (E) Celebrities and entertainers. cupational illnesses and injuries other (F) Social agencies representatives. than in emergencies per rules and regu- (G) Others in a similar status to lations of the Office of Workers’ Com- those in § 728.81(b)(4)(i) (A) through (F). pensation Programs (see § 728.53). (H) News correspondents. (2) Civilians attending the Federal (I) Commercial airline pilots and em- Bureau of Investigation (FBI) Acad- ployees. emy, Marine Corps Development and (J) Volunteer workers. This category Education Command, Quantico, VA, includes officially recognized welfare may be rendered care at the Naval workers, other than Red Cross. Medical Clinic, Quantico, VA, for emer- (ii) Care authorized. (A) Persons enu- gencies. Such persons who are in need merated in paragraph (b)(4)(i) (A) of hospitalization for injuries or dis- through (G) of this section, who are ease may be hospitalized and classed as contracted to provide direct services to civilian humanitarian nonindigents the Armed Forces and who are acting under orders issued by the Department with the approval of the cognizant hos- of Defense or one of the military de- pital’s commanding officer. EXCEPTION: partments to visit military commands Certain individuals, such as employees overseas, and their accompanying de- of the Federal Bureau of Investigation pendents, may be provided medical who are injured in the line of duty, care in naval MTFs outside the 48 con- may be entitled to care at the expense tiguous United States and the District of the Office of Workers’ Compensation of Columbia provided local civilian fa- Programs (OWCP) (see § 728.53). cilities are not reasonably available or (3) The following civilians who are in- are inadequate. Limit inpatient care to jured or become ill while participating acute medical and surgical conditions in Navy or Marine Corps sponsored exclusive of nervous, mental, or con- sports, recreational or training activi- tagious diseases, or those requiring ties may be rendered care on a tem- domiciliary care. Routine dental care, porary (emergency) basis until such other than dental prostheses and or- time as disposition can be effected to thodontia, is authorized on a space another source of care. available basis outside the United (i) Members of the Naval Sea Cadet States, provided such care is not other- Corps. wise available in reasonably accessible (ii) Junior ROTC/NDCC (National De- and appropriate non-Federal facilities. fense Cadet Corps) cadets. (B) Persons enumerated in paragraph (iii) Civilian athletes training or (b)(4)(i) (H) and (I) of this section are competing as part of the U.S. Olympic authorized emergency medical and den- effort. tal care in naval MTFs outside the 48

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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 conformance 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. United Nations) or by a voluntary non- (iv) On parole whose punitive dis- profit-relief agency registered with and charge has been executed are not mem- approved by the Advisory Committee bers of the military service and are on Voluntary Aid (e.g., CARE), they therefore not entitled to care at Gov- may receive other necessary non- ernment expense. If the circumstances emergency medical care and occupa- are exceptional, individuals herein who tional health services while serving are not authorized care may request outside the 48 contiguous United Secretarial designee status under the States and the District of Columbia. provisions of § 728.77. (c) Charges and collection. Care is pro- (2) Nonmilitary Federal prisoners. vided on a reimbursable basis. Com- Under the provisions of this section, plete and submit, per subpart J, a DD 7 nonmilitary Federal prisoners are au- (Report of Treatment Furnished Pay thorized only emergency medical care. Patients, Hospitalization Furnished, When such care is being rendered, the part A) or DD 7A (Report of Treatment institution to which prisoners are sen- Furnished Pay Patients, Outpatient tenced must furnish necessary guards Treatment, part B) when outpatient or to effectively maintain custody of pris- inpatient care is rendered. oners and assure the safety of other pa- § 728.82 Individuals whose military tients, staff members, and residents of records are being considered for the local area. Under no circumstances correction. will military personnel be voluntarily Individuals who require medical eval- used to guard or control such pris- uation in connection with consider- oners. Upon completion of emergency ation of their individual circumstances care, make arrangements for imme- by the Navy, Army, and Air Force diate transfer of the prisoners to a non- Board for Correction of Military military MTF or for return to the facil- Records are authorized evaluation, in- ity to which sentenced. cluding hospitalization when necessary (3) Enemy prisoners of war and other for the proper conduct thereof. detained personnel. Subject to the provisions of § 728.3, enemy prisoners of war § 728.83 Persons in military custody and other detained personnel are enti- and nonmilitary Federal prisoners. tled to and may be rendered all nec- (a) Potential beneficiaries. essary medical and dental care. (1) Military prisoners. (c) Charges and collection. Care pro- (2) Nonmilitary Federal prisoners. vided individuals enumerated in (3) Enemy prisoners of war and other § 728.83(b)(1) (ii), (iv), and (2) is on a re- detained personnel. imbursable basis. Complete and sub- (b) Care authorized—(1) Military pris- mit, per subpart J, a DD 7 (Report of oners. (i) Whose punitive discharges Treatment Furnished Pay Patients, have been executed but whose sen- Hospitalization Furnished, part A) or tences have not expired are authorized DD 7A (Report of Treatment Furnished all necessary medical and dental care. Pay Patients, Outpatient Treatment, (ii) Whose punitive discharges have part B) when outpatient or inpatient been executed and who require hos- care is rendered.

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Subpart H—Adjuncts to Medical service and when such members will be Care separated from the service because of these defects. § 728.91 General. (c) For active duty members, make Adjuncts to medical care include but the initial allowance of orthopedic are not limited to prosthetic devices footwear and orthopedic alterations to such as artificial limbs, artificial eyes, standard footwear the same quantity hearing aids, orthopedic footwear, as provided in the initial clothing al- spectacles, wheel chairs, hospital beds, lowance. and similar medical support items or (d) Base the number of orthopedic aids which are required for the proper and prosthetic appliances issued or re- care and management of the condition placed for other authorized recipients being treated. Generally, expenses in- upon the individual’s requirements as curred for procurement of such items, determined by the attending physician either from civilian sources as supple- to be consistent with the highest mental care or from stocks maintained standards of modern medicine. by the facility, are payable from oper- (e) Former members of the uniformed ation and maintenance funds available service should be advised that they for support of naval MTFs. However, may obtain durable medical equip- certain adjuncts may be cost-shared ment, medical care, and adjuncts from under CHAMPUS for CHAMPUS-eligi- Veterans Administration facilities. ble individuals under circumstances (f) Dependents are authorized certain enumerated in the cooperative care or adjuncts per §§ 728.31 (c) and (d) and in services criteria of § 728.4(z). instances where items are not normally authorized at the expense of the § 728.92 Policy. Government, they may be provided at (a) Provide adjuncts to medical care cost to the United States if available to eligible beneficiaries receiving inpa- from Government stocks under the fol- tient or outpatient care when, in the lowing conditions: opinion of the attending physician, (1) Outside the United States. such adjuncts will offer substantial as- (2) At specific stations within the sistance in overcoming the handicap or United States which have been author- condition and thereby contribute to ized by the Secretary of the Navy to the well-being of the beneficiary. sell these items. (b) Unless necessary for humanitarian reasons, do not furnish ortho- § 728.93 Chart of adjuncts. pedic and prosthetic appliances on an The following chart and footnotes elective basis to members of the naval provide information relative to ad- service with short periods of service re- juncts which may be furnished the sev- maining when the defect requiring the eral categories of beneficiaries eligible appliance existed prior to entry into 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

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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)

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 physician. 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 (2) There is no limited duty status, Treatment, Return to Limited per se, for inactive reservists. However, Duty, Separation, or Retire- if the attending physician determines that a reservist is temporarily unfit for ment for Physical Disability full duty, but will be fit for full duty following a period of convalescence or § 728.101 General. following duty with physical limita- (a) Notice of eligibility (NOE). While tions, not to exceed 6 months, the phy- the NOE is basically a document that sician may return the reservist to duty substantiates entitlement to a dis- with a summary of the hospitalization ability benefit equal to pay and allow- or treatment. The summary will set ances, it may be accepted when re- forth the limitations posed by the quired to substantiate eligibility for member’s disability and the period of benefits other than pay and allow- such limitations. Followup hospitaliza- ances, i.e., treatment in USMTFs under tion, treatment, and evaluation for the the provisions of title 10, United States same condition may be provided at Code. USMTFs during the period of restricted (b) Physical disability benefits. The fol- duty, if required. If, during the period lowing, excerpted and paraphrased of the restricted duty, it appears that from SECNAVINST 1770.3, paragraph the reservist will be permanently unfit 10, is applicable when a reservist may for full duty, promptly authorize the be entitled to physical disability bene- reservist to report for evaluation, fits. treatment if required, and appearance (1) When a notice of eligibility (NOE) before a medical board at the nearest has been issued to a member hospital- naval MTF capable of accomplishing ized in a naval MTF and the attending same. Admission to the sicklist is au- physician is of the opinion that recov- thorized, when required. Should the ery is not anticipated or that the re- medical board recommend appearance servist is not expected to be fit for re- before a physical evaluation board, dis- turn to full duty within a reasonable ability benefits equal to pay and allow- period, a medical board will be con- ances should continue until final dis- vened and the case managed the same position is effected. as that of a Regular member. Assure that a copy of the NOE accompanies § 728.102 Care from other than Federal the medical board report forwarded to sources. the Central Physical Evaluation Board. The provisions of this subpart do not Disability benefits, equal to pay and al- authorize care for reservists at other lowances, will continue in such in- than Federal facilities nor out of funds stances until final disposition. available for operation of USMTFs

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(supplemental care) after a period of (a) Coast Guard. (1) Active Officers; active duty or a period of training duty (2) Retired Officers; (3) Active Enlisted; ends, including travel to and from such (4) Retired Enlisted; (5) Dependents; (6) training. Such care may be rendered Cadets. under the provisions of part 732 of this (b) Public Health Service. (1) Active Of- chapter. ficers; (2) Retired Officers; (3) Depend- ents of Officers. Subpart J—Initiating Collection (c) National Oceanic and Atmospheric Action on Pay Patients Administration (NOAA). (1) Active Offi- cers; (2) Retired Officers; (3) Depend- § 728.111 General. ents of Officers. The Comptroller of the Navy has ap- (d) Foreign. (1) NATO Officers (Except proved a system of transactions that Canadians provided care under the generates reports to COMNAV comparable care agreement.); (2) NATO MEDCOM on unfunded reimbursable Enlisted (Except Canadians provided transactions. The purpose of the final care under the comparable care agree- report is to provide data on services furnished by naval health care facili- ment.); (3) NATO Dependents; (4) Civil- ties for which central collection from ians Accompanying NATO Members; (5) other Government agencies and private Foreign Military Sales (FMS) Officers; parties is required. (6) FMS Enlisted; (7) FMS Dependents; (8) FMS Civilians; (9) Military Grant § 728.112 Responsibilities. Aid Officers; (10) Military Grant Aid (a) Patient administration departments. Enlisted; (11) Military Grant Aid De- The initiation of the collection process pendents; (12) Military Grant Aid Civil- begins with patient administration de- ians; (13) Military Officers From Other partments. Collection action cannot be Than NATO Nations; (14) Military En- accomplished unless patient adminis- listed From Other Than NATO Nations; tration departments take the initial (15) Dependents of Officers and Enlisted step to complete: From Other Than NATO Nations; (16) (1) DD 7, Report of Treatment Fur- Civilians Accompanying Military Mem- nished Pay Patients, Hospitalization Fur- bers of Other Than NATO Nations; (17) nished (part A). Prepare a separate sub- Nationals and Their Dependents. stantiating DD 7, in triplicate, for each (e) Secretarial designees not exempted category of pay patient receiving inpa- from paying. tient care. At the end of each day that (f) Others. (1) Merchant Marines; (2) any pay patient is admitted, submit Military Sealift Command (MSC) Per- DD 7’s to the collection agent. sonnel; (3) Public Health Service bene- (2) DD 7A, Report of Treatment Fur- ficiaries (Other than Commissioned nished Pay Patients, Outpatient Treat- Corps); (4) Veterans Administration ment Furnished (part B). Prepare a sepa- beneficiaries; (5) Peace Corps bene- rate substantiating DD 7A, in triplicate, for each category of pay patient ficiaries; (6) Job Corps beneficiaries; (7) receiving outpatient care. At the end of Volunteers In Service to America each day that any pay patient is treat- (VISTA) beneficiaries; (8) Office of ed on an outpatient basis, submit DD Workers Compensation Program 7A’s to the collection agent. (OWCP) beneficiaries; (9) Bureau of (b) Collection agents. Upon receipt of a Employees Compensation (BEC) bene- completed DD 7 or DD 7A, collection ficiaries; (10) Department of State and agents will take the action indicated in Other Federal Agencies beneficiaries paragraph 24304 of the Resource Man- (prepare a separate form for each Fed- agement Handbook, NAVMED P–5020, eral agency); (11) Civilian Humani- to effect central collection action. tarian Nonindigents (CHNI); (12) Trust Territory beneficiaries; (13) Others not § 728.113 Categories of pay patients. specified above who are not entitled to The categories of patients for whom health benefits at the expense of the collection action must be initiated are: Government.

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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. Ensure that personnel under your 732.1 Background. cognizance are made aware of the con- 732.2 Action. 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 result in denial of Navy financial respon- 732.11 Definitions. sibility for expenses of maternity, med- 732.12 Eligibility. ical, or dental care obtained. 732.13 Sources of care. 732.14 Authorized care. 732.15 Unauthorized care. Subpart B—Medical and Dental 732.16 Emergency care requirements. Care From Nonnaval Sources 732.17 Nonemergency care requirements. 732.18 Notification of illness or injury. § 732.11 Definitions. 732.19 Claims. Unless otherwise qualified in this 732.20 Adjudication authorities. 732.21 Medical board. part the following terms when used 732.22 Recovery of medical care payments. throughout are defined as follows: 732.23 Collection for subsistence. (a) Active duty. Full-time duty in the 732.24 Appeal procedures. active military service of the United States. Includes full-time training Subpart C—Accounting Classifications for duty; annual training duty; and attend- Nonnaval Medical and Dental Care ance, while in the active military serv- Expenses and Standard Document ice, at a school designated as a service Numbers school by law or by the Secretary of the military department concerned. 732.25 Accounting classifications for nonnaval medical and dental care ex- (b) Active duty for training. A specified penses. tour of active duty for Reserves for 732.26 Standard document numbers. training under orders that provides for automatic reversion to non-active duty AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 1071–1088, status when the specified period of ac- 5031, 6148, 6201–6203, and 8140; and 32 CFR 700.1202. tive duty is completed. It includes annual training, special tours, and the SOURCE: 52 FR 32297, Aug. 27, 1987, unless initial tour performed by enlistees otherwise noted. without prior military service. The period of duty includes travel to and from Subpart A—General training duty, not in excess of the allowable constructive travel time pre- § 732.1 Background. scribed by SECNAVINST 1770.3 and When a U.S. Navy or Marine Corps paragraphs 10242 and 10243 of DOD Mili- member or a Canadian Navy or Marine tary Pay and Allowances Entitlements Corps member receives authorized care Manual. from other than a Navy treatment fa- (c) Constructive return. For purposes cility, care is under the cognizance of of medical and dental care, an the uniformed service medical treat- unathorized absentee’s return to mili- ment facility (USMTF) providing care, tary control may be accomplished the USMTF referring the member to through notification of appropriate another treatment source, or under the military authorities as outlined below. provisions of this part. If such a mem- (1) For members in an unauthorized ber is not receiving care at or under absentee (UA) status, constructive re- the auspices of a Federal source, return to military control for the pur- sponsibility for health and welfare, and pose of providing medical or dental the adjudication of claims in connec- care at Navy expense is effected when tion with their care, remains within one of the following has occurred: the Navy Medical Department. Part 728 (i) A naval activity informs a civilian of this chapter and NAVMEDCOMINST provider of medical or dental care that

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the Navy accepts responsibility for a (ii) Alston-Brighton Aid and Health naval member’s care. The naval activ- Group, Inc., Brighton Marine Public ity providing this information must Health Center, 77 Warren Street, Bos- also provide documentation of such no- ton, MA 02135, telephone (617) 782–3400. tification to the appropriate adjudica- (iii) Bayley Seton Hospital, Bay tion authority in § 732.20. Street and Vanderbilt Avenue, Staten (ii) A member has been apprehended Island, NY 10304, telephone (718) 390– by civil authorities at the specific re- 5547 or 6007. quest of naval authorities and naval (iv) Pacific Medical Center, 1200 12th authorities have been notified that the Avenue South, Seattle, WA 98144, tele- member can be released to military phone (206) 326–4100. custody. (3) Outpatient services only. (i) Coastal (iii) A naval member has been ar- Health Service, 331 Veranda Street, rested, while in a UA status, by civil Portland, ME 04103 (207) 774–5805. authorities for a civil offense and a (ii) Lutheran Medical Center, Down- naval authority has been notified that town Health Care Services, 1313 Supe- the member can be released to military rior Avenue, Cleveland, OH 44113, tele- control. phone (216) 363–2065. (2) When a naval member has been arrested 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 fense does not allow release to military dental care is received. Members, in- control, constructive return is not ac- cluding reservists, on leave or liberty complished. The individual is respon- are considered in a duty status. Reserv- sible for medical and dental care re- ists, performing active duty for train- ceived prior to arrest and the incarcer- ing or inactive duty training, are also ating jurisdiction is responsible for considered in a duty status during care required after arrest. their allowable constructive travel (d) Designated Uniformed Services time to and from training. Treatment Facilities (Designated USTFs). (f) Emergency care. Medical treatment Under Pub. L. 97–99, the following fa- of severe life threatening or poten- cilities are ‘‘designated USTFs’’ for the tially disabling conditions which result purpose of rendering medical and den- from accident or illness of sudden onset tal care to all categories of individuals and necessitates immediate interven- entitled to care under this part. tion to prevent undue pain and suf- (1) Sisters of Charity of the Incarnate fering or loss of life, limb, or eyesight Word Health Care System, 6400 and dental treatment of painful or Lawndale, Houston, TX 77058 (713) 928– acute conditions. 2931 operates the following facilities: (g) Federal facilities. Navy, Army, Air (i) St. John Hospital, 2050 Space Park Force, Coast Guard, Veterans Adminis- Drive, Nassau Bay, TX 77058, telephone tration, and USTFs (former U.S. Public (713) 333–5503. Inpatient and outpatient Health Service facilities listed in services. § 732.11(d). (ii) St. Mary’s Hospital Outpatient (h) Inactive duty training. Duty pre- Clinic, 404 St Mary’s Boulevard, Gal- scribed for Reserves by the Secretary veston, TX 77550, telephone (409) 763– of the Navy under Section 206 of Title 5301. Outpatient services only. 37, United States Code, or any other (iii) St. Joseph Hospital Ambulatory provision of law. Also includes special Care Center, 1919 La Branch, Houston, additional duties authorized for Re- TX 77002, telephone (713) 757–1000. Out- serves by an authority designated by patient services only. the Secretary of the Navy and per- (iv) St Mary’s Hospital Ambulatory formed by Reserves on a voluntary Care Center, 3600 Gates Boulevard, basis in connection with the prescribed Port Arthur, TX 77640 (409) 985–7431. training or maintenance activities of Outpatient services only. units to which they are assigned. (2) Inpatient and outpatient services. (i) (i) Maternity emergency. A condition Wyman Park Health System, Inc., 3100 commencing or exacerbating during Wyman Park Drive, Baltimore, MD pregnancy when delay caused by refer- 21211, telephone (301) 338–3693. ral to a uniformed services medical

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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 USMTFs, designated USTFs, VA facili- (3) Other uniformed services supple- ties, as well as from civilian sources. mental care programs. In addition to (m) Office of Medical Affairs (OMA) or services that augment other USMTF’s Office of Dental Affairs (ODA). Des- capabilities, supplemental care pro- ignated offices, under program man- grams of the other uniformed services agement control of COMNAVMEDCOM include care and services comparable and direct control of regional medical to those authorized by this part, e.g., commands, responsible for administra- emergency care and pre-approved non- tive requirements delineated in this emergency care. part. Responsibilities and functional (q) Unauthorized absence. Absence or tasks of OMAs and ODAs are outlined departure without authority from a in NAVMEDCOMINST 6010.3. member’s command or assigned place (n) Prior approval. Permission granted of duty. for a specific episode of necessary but (r) Uniformed Services Medical Treat- nonemergent maternity, medical, or ment Facilities (USMTF). Health care fa- dental care. cilities of the Navy, Army, Air Force, (o) Reservist. A member of the Naval Coast Guard, and the former U.S. Pub- or Marine Corps Reserve. lic Health Service facilities listed in (p) Supplemental care—(1) Operation paragraph (d) of this section designated and maintenance funds, Navy. Supple- as USTFs per DOD and Department of mental care of all uniformed services Health and Human Services directives. members, at Navy expense, encom- passes only inpatient or outpatient § 732.12 Eligibility. care augmenting the capability of a (a) Regular members. To be eligible for naval MTF treating a member. Such non-Federal medical, dental, or emer- care is usually obtained from civilian gency maternity care at Government sources through referral by the treat- expense, Regular active duty United ing naval MTF. If a member, authorized care under this part, is admitted States naval members and Canadian to or is being treated on an outpatient Navy and Marine Corps members must basis at any USMTF, all supplemental be in a duty status when care is pro- care is the financial responsibility of vided. that facility regardless of whether the (b) Reservists. (1) Reservists on active facility is organized or authorized to duty for training and inactive duty provide needed health care. The cost of training, including leave and liberty such care is chargeable to operation therefrom, are considered to be in a and maintenance funds (OM&N) avail- duty status while participating in able for operation of the USMTF re- training. Accordingly, they are enti- questing the care regardless of service tled to care for illnesses and injuries affiliation of the member (see part 728 occurring while in that status. of this chapter for such care under (2) Reservists are entitled to care for Navy Medical Department facilities). injuries and illnesses occurring during

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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 (a) Initial application. If a member re- Agreement (SOFA) nations of Belgium, quires maternity, medical, or dental Denmark, Federal Republic of Ger- care and naval facilities are unavail- many, France, Greece, Iceland, Italy, able, make initial application to other Luxembourg, the Netherlands, Norway, available Federal medical or dental fa- Portugal, Spain, Turkey, and the cilities or USTFs. When members are United Kingdom, are authorized out- stationed in or passing through a patient care only under the provisions of NATO SOFA nation and U.S. facilities this part when stationed in or passing are unavailable, ensure that members through the United States in connec- make initial application for emergency tion with official duties. Public Law and nonemergency care to military fa- 99–591 prohibits inpatient care of these cilities of the host country, or if appli- foreign military members in the cable, to civilian sources under the United States at the expense of the NATO SOFA nation’s health care pro- United States Government. The other gram. When hospitalized in Hawaii, NATO SOFA Nation, Canada, entered Alaska, or in a foreign medical facility, into a comparable care agreement with members and responsible commands the United States requiring the United will comply with OPNAVINST 6320.6. States to provide inpatient and out- (b) Secondary sources. When either patient care under the provisions of emergency or nonemergency care is re- this part to members of the Depart- quired and there are no Federal or ment of National Defence of Canada re- NATO SOFA facilities available, care ceiving care in the United States. may be obtained from non-Federal (d) Absent without authority. Naval sources under this part. members absent without authority during an entire episode of treatment § 732.14 Authorized care. are not eligible for non-Federal med- (a) Medical. (1) Consultation and ical, dental, or emergency maternity treatment provided by physicians or at care at Government expense. The only medical facilities, and procedures not exception occurs when a member’s ill- involving treatment when directed by ness or injury is determined to have COMNAVMEDCOM, are authorized. been the direct cause of the unauthor- Such care includes, but is not limited ized absentee status. In such an in- to: treatment by physicians, hospital stance, eligibility will be: inpatient and outpatient care, surgery, (1) Determined to have existed from nursing, medicine, laboratory and x- the day and hour of such injury or ill- ray services, physical therapy, eye ex- ness provided the member was not in aminations, etc. See § 732.17 for prior an unauthorized absentee status prior approval of these services in non- to the onset of the illness or injury and emergency situations. initiation of treatment. (2) When transplant (including bone- (2) Retained when the member is re- marrow) is the treatment of choice, turned directly to military control. COMNAVMEDCOM approval is re- (3) Terminated should the member quired. If time permits, telephone (A) return to an unauthorized absentee 294–1102, (C) (202) 653–1102 during reg- status immediately after completion of ular hours or (A) 294–1327, (C) 653–1327 treatment. Departmental level after regular duty hours, and followup (MEDCOM–333 for medical and with a message. Request approval via MEDCOM–06 for dental) review is re- message in nonemergency situations. quired before benefits may be extended. (b) Maternity episode. If a member au- (e) Constructive return. When con- thorized care under this part qualifies structive return, defined in § 732.11(c), for care under the provisions of is effected, entitlement will be deter- § 732.17(c) and delivers in a civilian hos- mined to have existed from 0001 hours pital, routine newborn care (i.e., nurs- of the day of constructive return, not ery, newborn examination, PKU test,

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etc.) is a part of the mother’s admis- request per § 732.17. Otherwise, the pre- sion expenses. Regardless of cir- scription from the refractionist, with cumstances necessitating delivery in a proper facial measurements, must be civilian facility or how charges are sep- sent for fabrication to the appropriate arated on the bill, charges will be paid dispensing activity set forth in from funds available for care of the NAVMED COMINST 6810.1. See mother. If the infant becomes a patient § 732.15(g) concerning contact lenses. in his or her own right—through an extension of the birthing hospital stay § 732.15 Unauthorized care. because of complications, transfer to The following are not authorized by another facility, or subsequent admis- this part: sion—the provisions of part 728 of this (a) Chiropractic services. chapter and NAVMEDCOMINST 6320.18 (b) Vasectomies. are applicable, and the sponsor be- (c) Tubal ligations. comes responsible for a part of the (d) Breast augmentations or reduc- medical expenses incurred. tions. (c) Dental. (1) With prior approval, (e) Psychiatric care, beyond the ini- the following may be provided: tial evaluation. (i) All types of treatment (including (f) Court ordered care. operative, restorative, and oral sur- (g) Contact lenses. gical) to relieve pain and abort infec- (h) Other elective procedures. tion. (ii) Prosthetic treatment to restore § 732.16 Emergency care requirements. extensive loss of masticatory function Only in a bona fide emergency will or the replacement of anterior teeth medical, maternity, or dental services for esthetic reasons. be obtained under this part by or on be- (iii) Repair of existing dental pros- half of eligible personnel without prior theses when neglect of the repair would authority as outlined below. result in unserviceability of the appli- (a) Medical or dental care. A situation ance. where the need or apparent need for (iv) Any type of treatment adjunctive medical or dental attention does not to medical or surgical care. permit obtaining approval in advance. (v) All x-rays, drugs, etc., required (b) Maternity care. When a condition for treatment or care in paragraphs commences or exacerbates during preg- (c)(1) (i) through (iv) of this section. nancy in a manner that a delay, caused (2) In emergencies (no prior ap- by referral to a USMTF or USTF, proval), only measures appropriate to would jeopardize the welfare of the relieve pain or abort infection are au- mother or unborn child, the following thorized. constitutes indications for admission (d) Eye refractions and spectacles. In- to or treatment at a non-Federal facil- cludes refractions of eyes by physicians ity: and optometrists and furnishing and (1) Medical or surgical conditions repairing spectacles. which would constitute an emergency (1) Refractions. A refraction may be in the nonpregnant state. obtained from a civilian source at Gov- (2) Spontaneous abortion, with first ernment expense only when Federal fa- trimester hemorrhage. cilities are not available, no suitable (3) Premature or term labor with de- prescription is in the member’s Health livery. Record, and the cognizant OMA or re- (4) Severe pre-eclampsia. ferring USMTF has given prior ap- (5) Hemorrhage, second and third tri- proval. mester. (2) Spectacles. When a member has no (6) Ectopic pregnancy with cardio- suitable spectacles and the lack there- vascular instability. of, combined with the delay in obtain- (7) Premature rupture of membrames ing suitable ones from a Federal source with prolapse of the umbilical cord. would prevent performance of duty; re- (8) Obstetric sepsis. pair, replacement, or procurement (9) Any other obstetrical condition from a civilian source may be author- that, by definition, constitutes an ized upon initiation of an after-the-fact emergency circumstance.

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§ 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 allowable in each instance of care. sources without prior approval from (ii) The location of the activity re- the cognizant adjudication authority ceiving blanket approval authority is in § 732.20. Obtaining nonemergency clearly delineated. care, other than as specified herein, (iii) Travel distance and time re- without documented prior approval quired to reach the nearest USMTF, may result in denial by the Govern- USDTF, designated USTF, or VA facil- ment of responsibility for claims aris- ity have been considered. ing from such care. (iv) Certain conditions are specifi- (a) Individual prior approval. (1) Sub- cally excluded, e.g., psychiatric care mit requests for prior approval of non- and elective surgical procedures. These emergency care (medical, dental, or conditions will continue to require in- maternity) from non-Federal sources dividual prior approval. to the adjudication authority (§ 732.20) (v) COMNAVMEDCOM (MEDCOM- serving the geographic area where care 333) is made an information addressee is to be obtained. When the require- on each letter of authorization. ments of § 732.14(d)(2) are met and spec- (c) Maternity care. (1) Pregnant active tacles have been obtained, request duty members residing outside Mili- after-the-fact approval per this para- tary Health Services System (MHSS) graph. inpatent catchment areas of uniformed (2) Submit requests on a NAVMED services facilities (including USTFs), 6320/10. Statement of Civilian Medical/ designated in Volumes I, II, and III of Dental Care, with blocks 1 through 7 MHSS Catchment Area Directories, are and 19 through 25 completed. Assist- permitted to choose whether to deliver ance in completing the NAVMED 6320/ in a closer civilian hospital or travel to 10 can be obtained from the health ben- a USMTF or USTF for delivery. If the efits advisor (HBA) at the nearest Government is to assume financial re- USMTF. sponsibility for non-Federal maternity (3) Upon receipt, the adjudication au- care of any member regardless of where thority will review the request and, if she resides, the member must obtain necessary, forward it to the appro- individual prior approval as outlined in priate chief of service with an expla- paragraph (a) of this section. Adjudica- nation of non-Federal care regulations tion authorities should not approve re- pertaining to the request. The chief of quests from members residing within service will respond to the request an inpatient MHSS catchment area un- within 24 hours. The adjudication au- less: thority will then complete blocks 26 (i) Capability does not (did not) exist and 27, and return the original of the at the USMTF or other Federal MTF approved/disapproved NAVMED 6320/10 serving her catchment area. to the member. (ii) An emergency situation neces- (b) Blanket prior approval. (1) Recruit- sitated delivery or other treatment in ing offices and other activities far re- a non-Federal facility (§ 732.16(b)). moved from USMTFs, uniformed serv- (2) Normal delivery at or near the ex- ices dental treatment facilities pected delivery date should not be con- (USDTFs), designated USTFs, and VA sidered an emergency for members re- facilities may request blanket approval siding within an MHSS inpatient for civilian medical and dental care of catchment area where delivery was ex- assigned active duty personnel. Letter pected to occur and, unless provided for requests should be submitted to the ad- in this part, will not be reason for de- judication authority (§ 732.20) assigned livery in a civilian facility at Govern- responsibility for the geographic area ment expense. of the requestor. (3) When granted leave that spans the (2) With full realization that such period of an imminent delivery, the blanket approval is an authorization to pregnant member should request a obligate the Government without indi- copy of her complete prenatal care

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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. should be denied when members have (ii) The requirement for prior ap- not attempted to adhere to the provi- proval if the Government may be ex- sions of this part. pected to defray any of the cost of such (4) Upon arrival at the designated care. leave address, members should contact (iii) Information regarding possible the MTF indicated on the statement compromise of disability benefits attached to their leave request. The should a therapeutic misadventure MTF will make a determination wheth- occur. er the member’s leave address falls (iv) Notification that should hos- within the inpatient catchment area of pitalization become necessary, or other a USMTF or USTF with the capability time is lost from the member’s place of of providing needed care. If no such duty, such lost time may be chargeable USMTF or USTF exists, the member as ‘‘ordinary leave.’’ will be given the opportunity to choose (v) Notification that the Government to deliver in a civilian hospital closer cannot be responsible for out-of-pocket to her leave address or travel to the expenses which may be required by the most accessible USMTF or USTF with insurance carrier or when the member capability for maternity care. does not have insurance which covers (5) Upon determination that civilian the cost of contemplated care. sources will be used for maternity care, (vi) Direction to report to a uni- the MTF listed on the attachment to formed services medical officer (pref- the leave papers will inform the mem- erably Navy) upon completion of treat- ber that she (or someone acting in her ment for determination of member’s behalf) must notify that MTF of the fitness for continued service. member’s admission for delivery or (2) If it becomes known that a mem- other inpatient care so that medical ber has already received non-Federal cognizance can be initiated. medical care without prior authoriza- (6) Automatically grant prior or ret- tion, refer the member to a uniformed roactive approval, as the situation war- services medical officer (preferably rants, to members requiring maternity Navy) to determine fitness for contin- care while in a travel status in the exe- ued service. At this time, counseling cution of permanent change of station measures delineated in paragraph (PCS) orders. (d)(1)(iii), (iv), and (v) of this section (d) Nonemergency care without prior must be taken. approval. (1) If it becomes known that a member intends to seek medical or § 732.18 Notification of illness or in- dental care (inpatient or outpatient) jury. from a non-Federal source and prior (a) Member’s responsibility. (1) If able, approval has not been granted for the members must notify or cause their

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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- mand Manual (MILPERSMAN) or Ma- port to the PNOK and SNOK is a re- rine Corps Order 6320.3B, as appro- sponsibility of the member’s command, priate. The adjudication authority will adjudication authorities must advise then arrange for transfer of the mem- the member’s command when such a ber and, if appropriate, newborn in- member is being treated or diagnosed fant(s), to a Federal facility or for such by non-Federal sources. The message other action as is appropriate. will also request forwarding of the (i) Name, grade or rate, and social se- member’s service and medical records curity number of patient. to the personnel support detachment (ii) Name of non-Federal medical or (PSD) supporting the activity in which dental facility rendering treatment. the OMA is located. Additionally, the (iii) Date(s) of such treatment. notification should contain a request (iv) Nature and extent of treatment for appropriate orders, either tem- or care already furnished. porary additional duty (TEMADD) or (v) Need or apparent need for further temporary duty (TEMPDU). treatment (for maternity patients, (i) Request TEMADD orders if care is need or apparent need for further care expected to terminate within the time of infant(s) also). constraints imposed for these orders. (vi) Earliest date on which transfer (ii) Request TEMDU Under Treat- to a Federal facility can be effected. ment orders for members hospitalized (vii) Telephone number of attending in a NMTF within the adjudication physician and patient. authority’s area of responsibility. (2) Should movement be delayed due (2) Make prompt message notifica- to actions of the member or the mem- tion to the member’s commanding offi- ber’s family, payment may be denied cer when apprised of any medical con- for all care received after provision of dition, including pregnancy, which will written notification by the adjudica- now or in the foreseeable future result tion authority. in loss of a member’s full duty services (3) The denial is § 732.18(a)(2) will be in excess of 72 hours. Mark the message for care received after the member’s ‘‘Commanding Officer’s Eyes Only.’’ condition has stabilized and after the cognizant adjudication authority has § 732.19 Claims. made a request to the attending physician and hospital administration for (a) Member’s responsibility. Members the member’s release from the civilian receiving care are responsible for prep- facility. This notification must specify: aration and submission of claims to the (i) Date and time the Navy will ter- cognizant adjudication authority iden- minate its responsibility for payment. tified in § 732.20. A complete claim in- (ii) That care rendered subsequent to cludes: receipt of the written notification is at (1) NAVMED 6320/10, Statement of Ci- the expense of the member. vilian Medical/Dental Care. In addition (b) Adjudication authority. As soon as to its use as an authorization docu- it is ascertained that a member is ment, the original and three copies of a

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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 block 10. If prior approval was not ob- any delay experienced in processing tained, state in block 11 circumstances claims. necessitating use of non-Federal facili- (1) Review. The receiving adjudication ties. authority will carefully review each (iii) Signature by the member in claim submitted for payment or reim- block 17 implies agreement for release bursement to verify whether: of information to the responsible adju- (i) Claimant was entitled to benefits dication authority receiving the claim (i.e., was on active duty, active duty for processing. Signature by the certi- for training, inactive duty training, fying officer in block 18 will be consid- was not an unauthorized absentee, ered certification that documentation etc.). As required by part 728 of this has been entered in the member’s chapter, a Defense Enrollment Eligi- Health Record as directed in article 16– bility Reporting System (DEERS) eli- 24 of MANMED. gibility check must be performed on (2) Itemized bills. The original and claims to all claimants required to be three copies of itemized bills to show: enrolled in DEERS. (i) Dates on or between which serv- (ii) Care rendered was due to a bona ices were rendered or supplies fur- fide emergency. (NOTE: When questions nished. arise as to the emergency nature of (ii) Nature of and charges for each care, forward the claim and all sup- item. porting documentation to the appro- (iii) Diagnosis. priate clinical specialist at the nearest (iv) Acknowledgment of receipt of naval hospital for review.) the services or supplies on the face of (iii) Prior approval was granted if a the bill or by separate certificate. The bona fide emergency did not exist. acknowledgment must include the (NOTE: If prior approval was not ob- statement. ‘‘Services were received and tained and the condition treated is de- were satisfactory.’’ termined to have been nonemergent, (3) Claims for reimbursement. To effect the claim may be denied.) Consider- reimbursement, also submit the origi- ation should always be given to cases nal and three copies of paid receipts that would have received prior ap- and an SF 1164. Claim for Reimburse- proval but, due to lack of knowledge of ment for Expenditures on Official Busi- the program, the member did not sub- ness, completed per paragraphs 046377– mit a request. 2 a and b of the Naval Comptroller (iv) Care rendered was authorized Manual (NAVCOMPT MAN). under the provisions of this part.

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(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 approval and the appropriate avenues services are the responsibility of the of appeal as outlined in § 732.24. service member. (3) Processing. Subpart C contains the (2) Third party payment. Do not with- chargeable accounting classifications hold payment while seeking funds from and Standard Document Numbers health benefit plans or from insurance (SDN) to be cited on the NAVCOMPT policies for which premiums are paid 2277, Voucher for Disbursement and/or privately by service members (see Collection, on an SF 1164 submitted per § 732.22 for possible recovery of pay- paragraph (a)(3) of this section, and on ments action). supporting documents of approved claims before submission to disbursing (3) No-fault insurance. In States with offices. no-fault automobile insurance require- (i) For payment to providers of care, ments, adjudication authorities will a NAV COMPT 2277 will be prepared notify the insurance carrier identified and certified approved for payment by in item 16 of the NAVMED 6320/10 that the adjudicating authority. This form Federal payment of the benefits in this must accompany the NAVMED 6320/10 part is secondary to any no-fault insur- and supporting documentation per ance coverage available to the poten- paragraph 046393–1 of the tially covered member. NAVCOMPTMAN. (d) Duplicate payments. Adjudication (ii) Where reimbursement is re- authorities and disbursing activities quested, the SF 1164 submitted per should take precautions against dupli- § 732.19(a)(3) will be completed, per cate payments per paragraph 046073 of paragraph 046377 of the the NAVCOMPTMAN. NAVCOMPTMAN, and certified approved for payment by the adjudicating § 732.20 Adjudication authorities. authority. This form must accompany (a) General. Controlling activities for the NAVMED 6320/10 and supporting medical care in the United States are documentation. designated as ‘‘offices of medical af- (c) Amount payable. Amounts payable fairs’’ (OMA) and for dental care, ‘‘of- are those considered reasonable after fices of dental affairs’’ (ODA). taking into consideration all facts. NAVMEDCOMINST 6010.3 delineates Normally, payment should be approved responsibilities and functional tasks of at rates generally prevailing within the OMAs and ODAs, including monthly re- geographic area where services or supporting of receipt of claims and claims plies were furnished. Although rates payment. Commanders of geographic

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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 (A/V) 485–2406/7/8 or (C) (504) 361–2406 States, the District of Columbia, and 2407 or 2408. Alaska, the following six regions are (5) Southwest Region. For the States responsible for care rendered or to be of Arizona and New Mexico; the coun- rendered within their areas of responsi- ties of Kern, San Bernadino, San Luis bility. Obispo, Santa Barbara, and all other (1) Northeast Region. The States of California counties south thereof; the Connecticut, Delaware, Illinois, Indi- community of Bridgeport, California ana, Iowa, Kentucky, Maine, Massa- (Marine Corps cold-weather training chusetts, Michigan, Minnesota, Mis- site); and Nevada, except for NAS souri, New Hampshire, New Jersey, Fallon and its immediate area; medical New York, Ohio, Pennsylvania, Rhode and dental responsibilities are vested Island, Vermont, and Wisconsin are in: Commander, Naval Medical Com- served by 1 ODA and 1 OMA: mand, Southwest Region, Office of Medical Affairs, San Diego, CA 92134– (i) Responsibility for dental matters 7000, Tele: (A/V) 987–2611 or (C) 233–2611. for States in the Northeast Region is (6) Northwest Region. The States of vested in: Commander, Naval Medical Alaska, Colorado, Idaho, Kansas, Mon- Command, Northeast Region, Office of tana, Nebraska, North Dakota, Oregon, Dental Affairs, Great Lakes, IL 60088, South Dakota, Utah, Washington, and Tele: (A/V) 792–3940 or (C) (312) 688–3940. Wyoming; the counties of Inyo, Kings, (ii) Responsibility for medical mat- Tulare, and all other counties of Cali- ters for States in the Northeast Region fornia north thereof; and NAS Fallon, is vested in: Commander, Naval Med- Nevada and its immediate area are ical Command, Northeast Region, Of- served by 2 OMAs and 1 ODA: fice of Medical Affairs, Great Lakes, IL (i) Responsibility for dental matters 60088, Tele: (A/V) 792–3950 or (C) (312) for the area of responsibility of the 688–3950. Northwest Region is vested in: Com- (2) National Capital Region. For the mander, Naval Medical Command, States of Maryland and West Virginia; Northwest Region, Office of Dental Af- the Virginia counties of Arlington, fairs, Oakland, CA 94267–5025, Tele: (A/ Fairfax, Loudoun, and Prince William; V) 855–6200 or (C) (415) 633–6200. the Virginia cities of Alexandria, Falls (ii) Responsibility for medical mat- Church, and Fairfax; and the District ters for the States of Colorado, Kansas, of Columbia, responsibility for medical and Utah; the California counties of and dental matters is vested in: Com- Inyo, Kings, Tulare, and all other coun- mander, Naval Medical Command, Na- ties of California north thereof; and tional Capital Region, Office of Medical NAS Fallon, Nevada and its immediate Affairs, Bethesda, MD 20814, Tele: (A/V) area is vested in: Commander, Naval 295–5322 or (C) (301) 295–5322. Medical Command, Northwest Region, (3) Mid-Atlantic Region. For the Oakland, CA 94627–5025, Attn: Office of States of North Carolina, South Caro- Medical Affairs, Tele: (A/V) 855–5705 or lina, and all areas of Virginia south (C) (415) 633–5705. and west of Prince William and (iii) Responsibility for medical mat- Loudoun counties, responsibility for ters for the States of Alaska, Idaho, medical and dental matters is vested Montana, Nebraska, North Dakota, Or- in: Commander, Naval Medical Com- egon, South Dakota, Washington, and mand, Mid-Atlantic Region, 6500 Hamp- Wyoming is vested in: Commanding Of- ton Boulevard, Norfolk, VA 23502, Attn: ficer, Naval Medical Clinic, Naval Sta- Office of Medical/Dental Affairs, Tele: tion, Seattle, WA 98115, Attn: Office of (A/V) 565–1074/1075 or (C) (804) 445–1074 Medical Affairs, Tele: (A/V) 941–3823 or or 1075. (C) (206) 526–3823.

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(c) Outside the United States (plus Ha- (9) The OMA for either the Southeast waii). For all areas outside the United Region or the Southwest Region for States plus Hawaii, the following ac- care rendered in Mexico to members tivities are vested with responsibility stationed within the respective areas of for approval or disapproval of requests responsibility of these OMAs. Forward and claims for maternity, medical, and claims for care rendered in Mexico to dental care: all other personnel to Commander, (1) Executive Director, Naval Medical Command, Washington, OCHAMPUSEUR, U.S. Army Medical DC 20372–5120 (MEDCOM–333). Command, APO New York 09102, for (10) Commander, Naval Medical Com- care rendered within the U.S. European mand, Washington, DC 20372–5120 Command, Africa, the Malagasy Repub- (MEDCOM–333) for inpatient and out- lic, and the Middle East. patient emergency and nonemergency (2) Commanding Officer, U.S. Naval care of active duty Navy and Marine Hospital, FPO San Francisco 96652–1600 Corps members in Canada and under (U.S. Naval Hospital, Subic Bay, the circumstances outlined in para- Luzon, Republic of the Philippines), for graph (d) of this section. care rendered in Afghanistan, Ban- (11) Outside the 50 United States, gladesh, Hong Kong, India, Nepal Paki- commanding officers of operational stan, the Philippines, Southeast Asia, units may either approve claims and Sri Lanka and Taiwan. direct payment by the disbursing offi- (3) Commanding Officer, U.S. Naval cer serving the command or forward Hospital, FPO Seattle 98765–1600 (U.S. claims to the appropriate naval med- Naval Hospital, Yokosuka, Japan), for ical command in paragraphs (b)(1) care rendered in Japan, Korea, and through (c)(9) of this section. This is a Okinawa. local policy decision to enhance the (4) Commanding Officer, U.S. Naval maintenance of good public relations. Hospital, FPO San Francisco 96630–1600 (12) The appropriate command in (U.S. Naval Hospital, Guam, Mariana paragraphs (b)(1) through (c)(9) of this Islands), for care rendered in New Zea- section for care rendered aboard com- land and Guam. mercial vessels en route to a location (5) Commanding Officer, U.S. Naval within the geographic areas listed. Communications Station, FPO San (13) The commanding officer author- Francisco 96680–1800 (U.S. Naval Com- izing care in geographical areas not munications Station, Harold E. Holt, specifically delineated elsewhere in Exmouth, Western Australia), for care this section. rendered in Australia. (d) The Commander, Naval Medical (6) Commanding Officer, U.S. Naval Command (MEDCOM–333), Navy Depart- Air Station, FPO New York 09560 (U.S. ment, Washington, DC 20372–5120. Under Naval Air Station, Bermuda), for care the following circumstances, responsi- rendered in Bermuda. bility is vested in COMNAVMEDCOM (7) Commanding Officer, U.S. Naval for adjudication of claims: Hospital, FPO Miami 34051 (U.S. Naval (1) For reservists who receive treat- Hospital, Roosevelt Roads, Puerto ment after completion of their active Rico), for maternity and medical care, duty or inactive duty training as pre- and Commanding Officer, U.S. Naval scribed in § 732.12(b). Dental Clinic, FPO Miami 34051 (U.S. (2) For care rendered in Mexico to Naval Dental Clinic, Roosevelt Roads, personnel stationed outside the areas PR), for dental care rendered in Puerto of responsibility of the Southeast and Rico, the Virgin Islands, and other Car- Southwest Regions. ibbean Islands. (3) For care rendered to members sta- (8) Commanding Officer, Naval Med- tioned in or passing through countries ical Clinic, Box 121, Pearl Harbor, HI in Central and South America. 96860, for maternity and medical care, (4) For outpatient care rendered and Commanding Officer, Naval Dental NATO active duty members. Clinic, Box 111, Pearl Harbor, HI 96860, (5) When Departmental level review for dental care rendered in the State of is required prior to approval, adjudica- Hawaii, Midway Island, and the Central tion, or payment. These claims: Pacific basin. (i) Will be considered on appeal.

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(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 Standards Notes, available from recipient of care must show the recipi- COMNAVMEDCOM (MEDCOM–25), pro- ent the Privacy Act statement printed vide guidance. at the bottom of the form prior to securing such a statement. The member (a) Chronic conditions requiring a should be asked to sign his or her name medical board include (but are not lim- beneath the statement. ited to): (c) For care rendered in States with (1) Arthritis, no-fault insurance laws, comply with (2) Asthma, procedures outlined in § 732.19(c)(3). (3) Diabetes, (4) Gout, § 732.23 Collection for subsistence. (5) Heart disease, The Navy Pay and Personnel Proce- (6) Hypertension, dures Manual provides guidance re- (7) Peptic ulcer disease, garding pay account checkage proce- (8) Psychiatric conditions, and dures to liquidate subsistence charges (9) Allergic conditions requiring de- incurred by members entitled to care sensitization. under the provisions of this part. Such (b) Other potentially disabling or members must also be entitled to basic chronic conditions may be referred to a allowance for subsistence (BAS) while medical board by the adjudication au- hospitalized at Government expense. thority with the concurrence of an ap- The responsible activity (the adjudica- propriate naval clinical specialist and tion authority or the naval MTF to the commander of the regional medical which such a member is transferred) command. should follow procedures outlined in the Navy Pay and Personnel Proce- § 732.22 Recovery of medical care pay- dures Manual when an eligible officer ments. or enlisted member of the naval service Adjudication authorities must sub- is subsisted at Department of the Navy mit evidence of payment to the action expense while hospitalized in a JAG designee per chapter 24 of the nonnaval treatment facility. Subpart C Manual of the Judge Advocate General contains the creditable accounting (JAGMAN), in each instance of pay- classification for inpatient subsistence ment where a third party may be le- collections. gally liable for causing the injury or disease treated, or when a Government § 732.24 Appeal procedures. claim is possible under workers com- When a claim for care or a request pensation, no-fault insurance, or under for prior approval for nonemergency

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care is initially denied by an adjudica- adjudication authority which upheld tion authority, the member may appeal the initial denial on reconsideration. the denial as outlined below. Any level (c) Level III—Consideration by in the appeal process may over-rule the COMNAVMEDCOM (MEDCOM–333). previous decision and order payment of the claim in whole or in part or grant the request for prior approval of care. Subpart C—Accounting Classi- (a) Level I—Reconsideration by the fications for Nonnaval Med- adjudication authority making the ini- ical and Dental Care Ex- tial denial. The member should submit penses and Standard Docu- any additional information that may ment Numbers mitigate the initial denial. (b) Level II—Consideration by the § 732.25 Accounting classifications for commander of the regional medical nonnaval medical and dental care command having cognizance over the 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 approved for payment. **Refer to NAVCOMPT Manual par. 027003 for appropriate Expenditure Category Codes when disbursement or collection involves a foreign or U.S. Contractor abroad. 1 Not applicable when care is procured from non-DOD sources for a patient receiving either inpatient or outpatient 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 products; 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.

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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 fiscal year. Each subsequent claim will then be serially numbered ‘‘00002’’, ‘‘00003’’, etc.

PART 733—ASSISTANCE TO AND been judicially decreed to be the parent SUPPORT OF DEPENDENTS; PA- of the child or judicially ordered to TERNITY COMPLAINTS contribute to the child’s support, or whose parentage has been admitted in Sec. writing by the member) who either: 733.1 Rates of basic allowance for housing (i) Is under 21 years of age; or (BAH). (ii) Is incapable of self-support be- 733.2 Delegations. cause of a mental or physical inca- 733.3 Information and policy on support of pacity, and in fact dependent on the dependents. 733.4 Complaints of nonsupport and insuffi- member for over one-half of his or her cient support of dependents. support; and 733.5 Determination of paternity and sup- (3) His or her parent (including a port of illegitimate children. stepparent or parent by adoption, and AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5013; 37 any person, including a former step- U.S.C. 101, 401, 403; 50 U.S.C. App. 2210; E.O. parent, who has stood in loco parentis 11157, 29 FR 7973, 3 CFR 1964 Supp. p. 139, as to the member at any time for a con- amended. tinuous period of at least 5 years before SOURCE: 44 FR 42190, July 19, 1979, unless he or she became 21 years of age) who otherwise noted. is in fact dependent on the member for over one-half of his or her support; § 733.1 Rates of basic allowance for however, the dependency of such a par- housing (BAH). ent is determined on the basis of an af- (a) Except as otherwise provided by fidavit submitted by the parent and law, a member of the naval service en- any other evidence required under reg- titled to basic pay is entitled to a BAH ulations prescribed by the Secretary of at the monthly rates according to the the Navy, and he or she is not consid- pay grade to which he or she is as- ered a dependent of the member claim- signed, in accordance with 37 U.S.C. ing the dependency unless: 403. (i) The member has provided over (b) The term ‘‘dependent’’ with re- one-half of his or her support for the spect to a member of the naval service, period prescribed by the Secretary; or as used in this part, means: (ii) Due to changed circumstances (1) His or her spouse; (2) His or her unmarried child (in- arising after the member enters on ac- cluding any of the following categories tive duty, the parent becomes in fact of children if such child is in fact de- dependent on the member for over one- pendent on the member: A stepchild; half of is or her support. an adopted child; or an illegitimate The relationship between a stepparent child whose alleged member-parent has and his or her stepchild is terminated

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by the stepparent’s divorce from the courts. Salient factors that should be parent by blood. considered are the pay of the member, [44 FR 42190, July 19, 1979, as amended at 65 any other private income or resources FR 62617, Oct. 19, 2000] 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 in paragraphs including determinations of depend- (b) and (c) of this section are not in- ency and relationship when required by tended as a fixed rule. They are in- legislation or policy for eligibility for tended as guidelines and the actual BAH, transportation and medical care support may be increased or decreased in behalf of dependents of Navy and as the facts and circumstances warrant Marine personnel and to administer until the amount of support to be fur- matters involving adequacy of support nished is settled by agreement of the for dependents and waivers of support parties or adjudicated by the civil of a spouse, and on the basis of new evi- courts. Because of the inherent arbi- dence or for other good cause to recon- trary and temporary nature of the sup- sider or modify any such determina- port scales set forth below, it is not in- tion. tended that they be used as bases for any judicial proceedings, for to do so [44 FR 42190, July 19, 1979, as amended at 65 FR 62617, Oct. 19, 2000] would lend excessive credence to administrative tools which have been de- § 733.3 Information and policy on sup- signed for use only within the Navy port of dependents. and the Marine Corps. (a) Policy—(1) General. The naval (b) Navy members. (1) The amount of service will not be a haven or refuge for support to be provided in the absence personnel who disregard or evade their of a mutual agreement or court order obligations to their families. All mem- is as follows:

bers of the naval service are expected For spouse only—1⁄3 gross pay to conduct their personal affairs satis- For spouse and one minor child—1⁄2 gross pay factorily. This includes the require- For spouse and two or more children—3⁄5 ment that they provide adequate and gross pay continuous support for their lawful de- For one minor child—1⁄6 gross pay 1 pendents and comply with the terms of For two minor children— ⁄4 gross pay For three or more children—1⁄3 gross pay separation agreements and court orders. Failure to do so which tends to (2) For purposes of this support bring discredit on the naval service is a guide, gross pay will include basic pay proper subject of command consider- and BAH, but does not include haz- ation for initiation of court-martial ardous duty pay, sea or foreign duty proceedings or other administrative or pay, incentive pay, or basic allowance disciplinary action. for subsistence. (2) Adequacy of support. Every mem- (3) Support of a lawful wife. The laws ber has an inherent natural and moral of jurisdictions in the United States obligation to support his or her spouse impose a legal obligation upon a hus- and family. What is adequate and rea- band to support his wife. Exemptions sonably sufficient support is a highly from support of a lawful wife may be in complex and individual matter depend- the form of an order of a civil court of ent on numerous factors, and may be competent jurisdiction, relinquishment resolved permanently only in the civil by the wife or mutual agreement of the

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parties, or a waiver of the naval sup- such duty is imposed on the adoptive port requirement granted by the Direc- parents. A Navy or Marine Corps mem- tor, Navy Family Allowance Activity ber who contemplates the adoption of a or the Commandant of the Marine child should be aware of the legal obli- Corps, as appropriate. gation to provide continuous support (4) Payments of alimony. Dependents for such child during minority. for whom basic allowance for quarters (7) Entitlement to basic allowance for or other allowances are payable are de- quarters. Entitlement of members to fined by law. For purposes of qualifying basic allowance for quarters on behalf for basic allowance for quarters, med- of dependents is provided by statute. ical care or other benefits, a former No member should be denied the right spouse is not a dependent even though to submit a claim or application for alimony has been decreed. Members are basic allowance for quarters, nor expected to comply with the terms of should any command refuse or fail to court orders or divorce decrees which forward any such claim or application. adjudge payments of alimony even In cases involving parents, the member though basic allowance for quarters is should furnish an estimate of the de- not payable. pendency situation to the best of his or (5) Support of children. The duty of a her knowledge. Commanding officers member to support his or her minor should not contact parents for depend- children is not affected by desertion or ency information to include in the other misconduct on the part of the member’s application. This delays the spouse. The obligation to support a application and serves no useful pur- child or children is not affected by dispose, as such cases are thoroughly in- solution of the marriage through di- vestigated by the Navy Family Allow- vorce, unless the judicial decree or ance Activity or Headquarters Marine order specifically negates the obliga- Corps, which obtains necessary depend- tions of the member to support a child ency affidavits directly from the par- or children of the marriage. The fact ents. Any person, including a service that a divorce decree is silent relative member or dependent who obtains an to support of minor children or does allowance by fraudulent means is sub- not mention a child or children will ject to criminal prosecution. not be considered as relieving the serv- (8) Application of the rule based on ice member of the inherent obligation Robey v. United States 71 Ct. Cl. 561. De- to provide support for the child or chil- terminations that no dependency exists dren of the marriage. In many cases, may be made in disputed cases—if a the courts may not be cognizant of the member does not contribute to the sup- existence of a child or children, or may port of spouse and child at least to the not have jurisdiction over the child or extent of: children. A commanding officer has (i) The full amount of his/her basic discretion to withhold action for al- allowance for quarters, or leged failure to support a child under (ii) An amount specified in a court the following conditions: order or legal separation agreement, or (i) Where the member cannot ascer- (iii) An amount agreed to by the par- tain the whereabouts and welfare of ties as acceptable, adequate support, the child concerned. whichever is lesser. Pertinent decisions (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 (c) Marine Corps members. (See MCO granted custody of the child by court 5800.16A, Marine Corps Manual for order but does not have physical con- Legal Administration trol of the child and the member is (LEGADMINMAN)) ready, willing, and able to care for and (1) In the absence of a court order or support the child if physical control is a written agreement between the par- obtained. ties as to an amount of support to be (6) Adopted children. The natural par- furnished by the Marine, the following ents of an adopted child are relieved of shall apply to establish interim sup- the obligation to support the child as port requirements. Note that gross pay

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is defined as basic pay and BAH, but (F) Involuntary allotment. does not include hazardous duty pay, (G) Garnishment. incentive pay, or basic allowance for (ii) As an exception to paragraph subsistence. 15002.6a of the LEGADMINMAN, a com- (2) Single family. (i) For a single fam- manding officer may direct compliance ily living in Government housing (ci- with the financial support require- vilian spouse): interim support shall be ments of this section by making in- $200.00 per supported person, up to a kind financial support. For example, maximum of 1⁄3 gross pay, per month. paying non-Government housing ex- (ii) For a single family not living in penses on behalf of family members, Government housing (civilian spouse): automobile loans, or charge accounts. interim support shall be either $200.00 (7) Alimony and child support. (i) De- per supported family member, or BAH pendents for whom BAH or other allow- at the ‘‘with dependents’’ rate, which- ances are payable are defined by law. ever is greater, up to a maximum of 1⁄3 For purposes of qualifying for BAH, gross pay, per month. medical care, or other benefits, a (3) Multiple families (not including a former spouse is not a dependent even spouse in the armed forces). Interim sup- though alimony has been decreed. Ma- port for each family member shall be rines are expected to comply with the either $200.00 per supported family terms of court orders which adjudge al- member, or the pro rata share of BAH imony payments (even though BAH is at the ‘‘with dependents’’ rate, which- not payable) until the responsibility ever is greater, up to a maximum of 1⁄3 for compliance is terminated by a gross pay, per month. court of competent jurisdiction; a writ- (4) Both spouses in the armed forces. (i) ten agreement between the persons No children of the marriage: no support concerned; relinquishment by the obligation, regardless of any disparities former spouse in writing; or the waiver in pay grade. of the support requirement is granted (ii) All the children of the marriage by the general court-martial (GCM) au- in the custody of one spouse: interim thority in writing. support shall be either $200.00 per sup- (ii) If the decree is silent as to ali- ported child, or BAH at the ‘‘with de- mony payments, it is presumed that pendents’’ rate, whichever is greater, the court did not intend such pay- up to a maximum of 1⁄3 gross pay, per ments. month. (iii) When a valid court order exists (iii) If custody of children of the mar- and the Marine concerned is finan- riage is divided between the two par- cially unable to comply, the Marine ents: interim support shall be either will be advised that noncompliance $200.00 per supported family member, with the terms of that order renders or the pro rata share of BAH at the the Marine liable to further civil court ‘‘with dependents’’ rate, whichever is action. greater, up to a maximum of 1⁄3 gross (iv) The duty of Marines to support pay, per month. their minor children is not terminated (5) Support amounts required pursu- by desertion or other misconduct on ant to this section will be paid until a the part of the Marine’s spouse. Simi- court order or written agreement is ob- larly, the obligation to support a child tained. or children is not eliminated or re- (6) Form and timing of financial sup- duced by the dissolution of the mar- port payments riage through divorce, unless a judicial (i) Unless otherwise required by court decree or order specifically negates the order or by written financial support obligation of child support. The fact agreement, a financial support pay- that a divorce decree is silent relative ment will be made in one of the fol- to support of minor children, or does lowing ways: not mention a child or children, will (A) Check. not be interpreted by command au- (B) Money order. thorities as relieving the Marine of the (C) Electronic transfer. inherent obligation to provide support (D) Voluntary allotment. for the child or children of the mar- (E) Cash. riage.

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(v) A commanding officer may con- parties, the applicable guide in § 733.3 sider releasing a Marine under his/her will apply. The member will be in- command from the specific require- formed that his/her Navy or Marine ments of this regulation in the situa- Corps career may be in jeopardy if he/ tions described below. A commanding she does not take satisfactory action. officer may reconsider any prior deci- The member may become ineligible to sion made by himself/herself or by a reenlist or extend enlistment (in the prior commanding officer: case of enlisted members), and may be (A) When the Marine cannot deter- subject to administrative or discipli- mine the whereabouts and welfare of nary action that may result in separa- the child concerned; (B) When it is apparent that the per- tion from the Navy or Marine Corps. son requesting support for the child (1) Waiver of support of spouse. If the does not have physical custody of the member feels that he or she has legiti- child; mate grounds for a waiver of support (C) When the Marine has been the for the spouse, the Director, Navy victim of a substantiated instance of Family Allowance Activity or in the physical abuse (this section applies case of a member of the U.S. Marine only to a requirement to support a Corps, the general court-martial con- spouse, not dependent children. Com- vening authority, may grant such a manding officers are strongly encour- waiver for support of a spouse (but not aged to consult the installation family children) on the basis of evidence of de- counseling center concerning such sertion without cause or infidelity on issues. In addition, commanders should the part of the spouse. The evidence exercise extreme caution in denying may consist of— dependent support in cases where the (i) U.S. Navy members. An affidavit of servicemember is also a perpetrator of the service member, relative, disin- spousal abuse.); or terested person, public official, or law (D) The dependent is in jail. enforcement officer, and written ad- (vi) All command directed support waivers shall be in writing and a copy missions by the spouse contained in shall be provided to the disenfranchised letters written by that spouse to the family member by the command. The service member or other persons. How- command shall also retain a copy. Al- ever, affidavits of the service member leged verbal support waivers shall be and relatives should be supported by given no force or effect. other corroborative evidence. All affi- (vii) The natural parents of an adopt- davits must be based upon the personal ed child are relieved of the obligation knowledge of the facts set forth; state- to support the child as such duty is im- ments of hearsay, opinion, and conclu- posed on the adoptive parent. A Marine sion are not acceptable as evidence. who contemplates the adoption of a (ii) U.S. Marine Corps members. The child should be aware of the legal obli- Marine’s commander may consider all gation to provide continuous support, pertinent facts and circumstances. The once adopted, for such child during its general court-martial convening au- minority. thority my consider any reliable evi- [44 FR 42190, July 19, 1979, as amended at 65 dence including, but not necessarily FR 62617, Oct. 19, 2000] limited to, the following: affidavits of the Marine, relatives, or other wit- § 733.4 Complaints of nonsupport and nesses; admissions of the spouse, in- insufficient support of dependents. cluding verbal and written statements (a) Upon receipt of a complaint alleg- or letters written by the spouse to the ing that a member is not adequately Marine or other persons; pertinent pho- supporting his or her lawful dependents tographs or court orders; and admis- (spouse or children), the member will sions by the person with whom the be interviewed and informed of the pol- spouse allegedly had sexual liaisons. icy of the Department of the Navy con- Witness statements should ordinarily cerning support of dependents. In the state facts that were personally ob- absence of a determination by a civil court or a mutual agreement of the served. Statements that merely state a

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conclusion without providing the per- order or decree of paternity or support sonal observations on which the con- is rendered by a United States or for- clusion is based are generally eign court of competent jurisdiction unpersuasive. against a member of the Navy or Ma- (iii) The request for waiver of support rine Corps on active duty, the member of a spouse should be submitted to the concerned will be informed of his moral Director, Navy Family Allowance Ac- and legal obligations as well as his tivity or in the case of a member of the legal rights in the matter. The member U.S. Marine Corps, the general court- will be advised that he is expected to martial convening authority, with a render financial assistance to the child complete statement of the facts and regardless of any doubts of paternity substantiating evidence, and comments that the member may have. If the or recommendations of the com- court order or decree specifies an manding officer. amount of support to be provided the (2) Action. After a written complaint member will be expected to comply that a member has failed or refused to with the terms of such decree or order. furnish support for his or her spouse or If no amount is specified, support children has been received, and the should be rendered in accordance with member has been counseled with re- such reasonable agreement as may be gard to his/her rights and obligations made with the mother or legal guard- in the support matter, continued fail- ian of the child or, in the absence of ure or refusal, without justification, to such agreement, in accordance with furnish support for dependents in ac- the applicable guide set forth above. If cordance with the provisions of a valid the member refuses to comply with the court order, written agreement, or, in terms of the court order, administra- the absence of a court order or agree- tive action will be taken as indicated ment, the appropriate support guide in § 733.4. set forth above, will be a basis for con- (1) Court of competent jurisdiction. A sideration of disciplinary or adminis- court of competent jurisdiction is gen- trative action which may result in the erally a court that has jurisdiction member’s separation from active serv- over the subject matter and the parties ice. involved. As a general rule, the com- (b) [Reserved] petency of the court to render the judi- [44 FR 42190, July 19, 1979, as amended at 65 cial order or decree may be tested by FR 62618, Oct. 19, 2000] the enforceability of the order or decree. Normally, although not always, § 733.5 Determination of paternity and personal service of the court’s process support of illegitimate children. on the member is considered essential. (a) Illegitimate children. If the service With respect to a foreign judicial order member desires marriage, leave for or decree, the general rule is that this purpose is recommended whenever where the defendant was a citizen or consistent with the needs or exigencies subject of the foreign country in which of the service. When the blood parents the order or decree was issued, the of an illegitimate child marry, the court may have acquired jurisdiction child is considered to be legitimized by over the member by any mode of serv- the marriage unless a court finds the ice or notice recognized as sufficient by child to be illegitimate. the laws of that country. It should be (b) Judicial order or decree of paternity noted, however, that an order or decree or support. Normally any order or de- against a citizen or permanent resident cree which specifies the obligation to of another country, without personal render support of illegitimate children service or personal notice of the action will include within it a determination to him or her, is null and void unless of paternity of such children; however, the member voluntarily submitted to some jurisdictions provide for deter- the jurisdiction by appearing and con- minations of the legal obligation to testing the action. In the event there is support illegitimate children without a doubt as to the competency of the determination of paternity. Either court to enter the order or decree, the type of order or decree falls within the question shall be referred to the Judge scope of this paragraph. If a judicial Advocate General.

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(2) [Reserved] before a court of competent jurisdic- (c) Nonjudicial determination. In the tion, administrative or executive agen- absence of an adjudication of paternity cy, or official authorized to receive it. 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 [44 FR 42190, July 19, 1979, as amended at 65 FR 62618, Oct. 19, 2000] informed of his moral obligation to assist in the payment of prenatal expenses. PART 734—GARNISHMENT OF PAY (d) Members not on active duty. Allega- OF NAVAL MILITARY AND CIVIL- tions of paternity against members of IAN PERSONNEL FOR COLLEC- the naval service who are not on active TION OF CHILD SUPPORT AND duty will be forwarded to the indi- ALIMONY vidual concerned in such a manner as to insure that the charges are delivered Sec. to the addressee only. The correspond- 734.1 Purpose. ence should be forwarded via the com- 734.2 Scope. mandant of the naval district in which 734.3 Service of process. the member resides. 734.4 Responsibilities. (e) Former members. (1) If a certified 734.5 Administrative procedures. copy of a judicial order or decree of paternity or support duly rendered by a AUTHORITY: 42 U.S.C. 659 (Social Security Act, sec. 459 added by Pub. L. 93–647, part B, United States or foreign court of com- sec. 101(a), 88 Stat. 2357, as amended by the petent jurisdiction against a former Tax Reform and Simplification Act of 1977, member of the Navy or Marine Corps is Pub. L. 95–30, title V, sec. 502, 91 Stat. 157). submitted, his or her last-known address will be furnished to the complain- SOURCE: 44 FR 42193, July 19, 1979, unless otherwise noted. ant with return of the correspondence and court order. The complainant will § 734.1 Purpose. be informed of the date of discharge and advised that the individual con- This part prescribes responsibilities cerned is no longer a member of the and procedures applicable in the De- Navy or Marine Corps in any capacity. partment of the Navy when processsing (2) Where there has been no court ad- and honoring legal process brought for judication, the correspondence will be the enforcement of legal obligations to returned to the complainant with an provide child support or make alimony appropriate letter stating that the in- payments under 42 U.S.C. 659 (Social dividual is no longer a member of the Security Act, section 459 added by Pub. Navy or the Marine Corps in any capac- L. 93–647, part B, sec. 101(a), 88 Stat. ity and giving the date of his or her 2357, as amended by the Tax Reform discharge or final separation except and Simplification Act of 1977, Pub. L. that the last-known address of the 95–30, title V, sec. 502, 91 Stat. 157). former member shall be furnished to the claimant if the complaint against § 734.2 Scope. the former member is supported by a The provisions of this part shall document which establishes that the apply to legal process affecting any former member has made an admission Federal pay administered by the De- or statement acknowledging paternity partment of the Navy and due and pay- or responsibility for support of a child able to all categories of naval military

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or civilian personnel including per- appropriated-fund instrumentalities) sonnel of Navy or Marine Corps non- or installations situated within the appropriated-fund activities. This part territorial jurisdiction of the issuing is not applicable to legal process af- court, such process may be served perfecting entitlements administered by sonally, or by registered or certified other agencies, such as civilian em- mail, return receipt requested, on the ployees’ retirement benefits adminis- commanding officer or head of such ac- tered by the Office of Personnel Man- tivity or installation, or principal as- agement or compensation administered sistant specifically designated in writ- by the Veterans Administration. ing by such official. [44 FR 42193, July 19, 1979, as amended at 47 (ii) In other cases involving civilian FR 28371, June 30, 1982] employees, such process may be served personally or by registered or certified § 734.3 Service of process. mail, return receipt requested, in the (a) It is the policy of the Department manner indicated below: of the Navy to respond promptly to (A) If pertaining to civil service per- legal process addressed to naval offi- sonnel of the Navy or Marine Corps, cials. Service of legal process affecting such process may be served on the Di- the pay of Department of the Navy per- rector of Civilian Personnel Law, Of- sonnel shall be made on the following fice of the General Counsel, Navy De- designated officials in the manner and partment, Washington, DC 20390. in the circumstances specified below: (B) If pertaining to non-civil service (1) Navy members. Process affecting civilian personnel of Navy Exchanges the military pay of active duty, Re- or related nonappropriated-fund instru- serve, Fleet Reserve, or retired Navy mentalities administered by the Navy members, wherever serving or residing, Resale System Office, such process may be served personnally or by reg- may be served on the Commanding Of- istered or certified mail, return receipt ficer, Navy Resale System Office, At- requested, on the Director, Navy Fam- tention: Industrial Relations Officer, ily Allowance Activity, Anthony J. 29th Street and Third Avenue, Brook- Celebrezze Federal Building, Room 967, lyn, New York 11232. Cleveland, Ohio 44199. (C) If pertaining to non-civil service (2) Marine Corps members. 42 U.S.C. 659 civilian personnel of Navy clubs, provides that pay of a servicemember, messes, or recreational facilities (nonactive duty or retired, shall be subject appropriated funds), such process may to legal process brought for the en- be served on the Chief of Naval Per- forcement against such member of sonnel, Director, Recreational Services legal obligations to provide child sup- Division (Pers/NMPC–72), Washington, port or alimony payments. ‘‘Legal DC 20370. process’’ means any writ, order, sum- (D) If pertaining to non-civil service mons, or other similar process in the civilian personnel of other non- nature of garnishment. Upon receipt of appropriated-fund instrumentalities such legal process, it will be forwarded which fall outside the purview of the directly to: Defense Finance and Ac- Chief of Naval Personnel or the Com- counting Service, Cleveland Center, manding Officer, Navy Resale Systems Garnishment Operations Directorate Office, such as locally established mo- (DFAS–CL/L), P.O. Box 998002, Cleve- rale, welfare, and other social and land, Ohio 44199–8002. The letter of hobby clubs, such process may be transmittal will state the date of serv- served on the commanding officer of ice and method by which service was the activity concerned. made. Detailed instructions for dis- (E) If pertaining to non-civil service bursing officers and commanding offi- civilian personnel of any Marine Corps cers are contained in DFAS–KC 7220.31– nonappropriated-fund instrumental- R, chapter 7. 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

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purview of 42 U.S.C. 659 (Social Secu- directions of the designated official in rity Act, sec. 459 added by Pub. L. 93– responding to the legal process. 647, part B, sec. 101(a), 88 Stat. 2357, as (2) For the purposes of this part, the amended by the Tax Reform and Sim- Director, Navy Family Allowance Ac- plification Act of 1977, Pub. L. 95–30, tivity, Cleveland, Ohio, will function as title V, sec. 502, 91 Stat. 157). Where the commanding officer with regard to service of process is offered to an offi- retired Navy military personnel and cial not authorized to accept it under members of the Fleet Reserve. paragraph (a) of this section, the per- (c) Legal services. The Judge Advocate son offering such service shall be re- General is responsible for the following ferred to the appropriate official des- functions pertaining to legal process ignated in paragraph (a) of this section. within the purview of this part: [44 FR 42193, July 19, 1979, as amended at 65 (1) Providing overall technical direc- FR 62619, Oct. 19, 2000] tion and guidance, as required, for all Department of the Navy military and § 734.4 Responsibilities. civilian attorneys engaged in reviewing (a) Designated officials. Within their such process or advising on its disposi- respective areas of cognizance as set tion. forth in § 734.3, the designated officials (2) Ensuring, as Director, Naval are responsible for the following func- Legal Sevice, the availability of attor- tions with regard to legal process: neys in Naval Legal Service Offices (1) Sending such notifications and di- who are qualified to advise and assist rections to the member concerned and the designated officials concerning the his or her commanding officer as may disposition of legal process, and be required. (3) Where required, ensuring effective (2) Obtaining or providing an appro- liaison with the Department of Justice priate review by qualified legal coun- or United States Attorneys. sel. (3) Taking or directing actions, tem- [44 FR 42193, July 19, 1979, as amended at 65 porary and final, as are necessary to FR 62619, Oct. 19, 2000] comply with 42 U.S.C. 659, as amended (see § 734.3(b)), the MCO 5800.16A, Ma- § 734.5 Administrative procedures. rine Corps Manual for Legal Adminis- The designated officials specified in tration (LEGADMINMAN), Navy § 734.3, shall, in consultation with the Comptroller Manual, and the court’s Judge Advocate General and Com- order in the case, and mander, Navy Accounting and Finance (4) Apprising the cognizant United Center or the Commandant of the Ma- States Attorney of the Department of rine Corps (FD), as appropriate, estab- the Navy’s disposition, as required, lish procedures for effectively exe- and, in coordination with the Judge cuting their assigned responsibilities. Advocate General, effecting liaison Implementing procedures shall con- with the Department of Justice or form with 42 U.S.C., 659, as amended, United States Attorneys in instances the MCO 5800.16A, Marine Corps Man- of noncompliance with process or other ual for Legal Administration circumstances requiring such action. (LEGADMINMAN), the Navy Comp- (b) Command responsibility. (1) The troller Manual, and the Federal Per- Commanding officer of the member or sonnel Manual. employee concerned shall, upon receipt of notification from the appropriate [44 FR 42193, July 19, 1979, as amended at 65 FR 62619, Oct. 19, 2000] designated official, ensure that the member or employee has received written notification of the pendency of the PART 735—REPORTING BIRTHS AND action and that the member or em- DEATHS IN COOPERATION WITH ployee is afforded counseling con- OTHER AGENCIES cerning his or her obligations in the matter, and legal assistance if applica- Sec. ble, in dealing with the legal action to 735.1 Purpose. affect his or her Federal pay. The com- 735.2 Background. manding officer shall comply with the 735.3 Action.

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AUTHORITY: 70A Stat. 278; 80 Stat. 379, 383; required by law and regulation of such 5 U.S.C. 301, 552; and 10 U.S.C. 5031. authorities when births occur on a SOURCE: 51 FR 15321, Apr. 23, 1986, unless course inbound to the U.S. Addition- otherwise noted. ally, the medical officer shall: (i) Furnish the parents with appro- § 735.1 Purpose. priate certificates and shall, if the re- To promulgate latest guidance on report is not accepted by the local reg- porting births and deaths, including istrar of vital statistics or other civil births to which part 138 of this title is authority, or in any case in which local applicable. authority has indicated in writing that such a report will not be accepted, § 735.2 Background. (ii) Advise the parents to seek the ad- For Armed Forces members and their vice of the nearest office of the U.S. dependents on duty overseas, registra- Immigration and Naturalization Serv- tion of vital statistics with an appro- ice (USINS), at the earliest practicable priate foreign government may be a time. USINS offices are located in distinct advantage should documentary ports of entry and in major cities of evidence, acceptable in all courts, be the United States. required at any future time. Depart- (iii) For births occurring on courses ment of Defense (DOD) policy is that out-bound and beyond the continental military services will require their limits of the U.S., report to the U.S. members to make official record of consular representative at the next ap- births, deaths, marriages, etc., with propriate foreign port. When the air- local civil authorities in whose juris- craft or ship does not enter a foreign diction such events occur. port, procedures described in § 735.3 Action. § 735.3(a)(2)(ii) shall be followed. (3) Attention is invited to the fact When a medical officer has knowl- that reports of birth may be forwarded edge of a birth or death occurring to the Bureau of Health Statistics, De- under the following conditions, he or partment of Health, Honolulu, Hawaii she shall refer the matter to the com- for any births occurring on courses des- manding officer for assurance of com- tined for islands in the Pacific Ocean pliance with DOD policy. (a) Births. (1) In accordance with over which the United States has juris- local health laws and regulations, the diction as well as for those births commanding officer of a naval hospital which are otherwise accepted by civil in the United States (U.S.) shall report authorities for Hawaii. to proper civil authorities all births, (4) Part 138 of this title prescribes including stillbirths, occurring at the policy, responsibilities, and procedures hospital. Medical officers on ships and on birth registration of infants born to aircraft operating within U.S. political U.S. citizens, in military medical fa- boundaries, or at stations other than cilities outside the United States and naval hospitals in the U.S., shall report its possessions. all births occurring within their profes- (b) Deaths. When a death occurs at a sional cognizance. It shall be the duty naval activity in any State, Territory, of the medical officer to determine the or insular possession of the United requirements of local civil authorities States, the commanding officer or des- for these reports. ignated representative shall report the (2) When births occur on aircraft or death promptly to proper civil authori- ships operating beyond U.S. political ties in accordance with Naval Medical boundaries, the medical officer respon- Command directives. If requested by sible for delivery shall make a report these civil authorities, the civil death to the commanding officer, master of certificate may be prepared and signed the ship, or to the officer in command by the cognizant naval medical officer. of any aircraft, in every case to be re- Local agreements concerning reporting corded in the ship or aircraft log. A re- and preparation of death certificates port shall also be made to local civil should be made between the naval fa- authorities in the first port of entry if cility and local civil authorities.

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CROSS REFERENCE: For joint procurement The Federal Property Act places the regulations of the Armed Forces, see chapter responsibility for the disposition of ex- I of this title. cess and surplus property located in the United States, Puerto Rico, the PART 736—DISPOSITION OF Virgin Islands, American Samoa, PROPERTY Guam, and the Trust Territory of the Pacific Islands with the Administrator Sec. of General Services, and for disposition 736.1 General. 736.2 Dispositions under contracts. of such property located in foreign 736.3 Sale of personal property. areas, with the head of each executive 736.4 Disposition of real property. agency. The Act of August 10, 1956 (70A 736.5 Disposition of real and personal prop- Stat. 451; 10 U.S.C. 7304, 7305, 7307) and erty under special statutory authority. Executive Order 11765 of January 21, 736.6 Certification prior to disposition. 736.7 Approval by the Attorney General. 1974, (39 FR 2577) provide authority for the disposal of warships as well as AUTHORITY: Secs. 5031, 6011, 70A Stat. 278, as amended; 10 U.S.C. 5031, 6011. Interpret or other vessels stricken from the Naval apply R.S. 3618, 3678, 3709, 38 Stat. 1084, 44 Vessel Register. The United States Stat. 605, 49 Stat. 885, 53 Stat. 811, 54 Stat. Maritime Commission, however, is au- 396, 57 Stat. 380, 59 Stat. 260, sec. 27, 60 Stat. thorized to dispose of surplus vessels, 856, sec. 5, 60 Stat. 998, sec. 4, 62 Stat. 286, other than warships, or 1,500 gross tons secs. 7(c), 8(a–b), 62 Stat. 452, 63 Stat. 377, 64 or more which the Commission deter- Stat. 1109, 65 Stat. 645, 68 Stat. 832, sec. 501(c)(3), 68A Stat. 163, secs. 2481, 2541, 2542, mines to be merchant vessels or capa- 2571–2574, 2662, 2667, 6155, 6156, 6901, 7227, 7228, ble of conversion to merchant use (40 7230, 7304–7308, 7541–7547, 7601–7604, 70A Stat. U.S.C. 484(i)). Accordingly, in disposing 141, sec. 5003, 72 Stat. 1252, 72 Stat. 1793, sec. of its property, the Department of the 616, 73 Stat. 381, as amended; 31 U.S.C. 487, Navy is subject to applicable regula- 628, 41 U.S.C. 5, 31 U.S.C. 686, 686a, 40 U.S.C. 304a, 50 U.S.C. 98–98h, 22 U.S.C. 521, 44 U.S. C. tions of the Administrator of General 366–380, 42 U.S.C. 1572, 24 U.S.C. 37, 20 U.S.C. Services and the Secretary of Defense, 77d, 15 U.S.C. 328, 49 U.S.C. 1156(c), 1157(a–b), and, in regard to potential merchant 40 U.S.C. 471 et seq., 42 U.S.C. 1855–1855g, 22 vessels other than warships, to deter- U.S.C. 1611–1613c, 1750 et seq., 26 U.S.C. minations of the United States Mari- 501(c)(3), 10 U.S.C. 2481, 2541, 2542, 2571–2574, 2662, 2667, 6155, 6156, 6901, 7227, 7228, 7230, 7304– time Commission. In general, property 7308, 7541–7547, 7601–7604, 38 U.S.C. 5003, 42 of the Department of the Navy, which U.S.C. 1891–1893, 40 U.S.C. 483a, E.O. 10885, 25 becomes excess to its needs, may not FR 8471, 40 U.S.C. 471; 40 U.S.C. 486; 10 U.S.C. be disposed of to the general public 2576; 33 U.S.C. 1401; Pub. L. No. 96–41 (50 until it has been determined to be sur- U.S.C. 98); Pub. L. No. 93–288 (42 U.S.C. 5121). plus after screening such property with SOURCE: 25 FR 4674, May 27, 1960, unless the other military departments of the otherwise noted. Department of Defense and all other § 736.1 General. agencies of the Government, and after it has been offered for donation to edu- Real and personal property under the cational institutions, and law enforce- jurisdiction of the Department of the ment and marine research activities. Navy, exclusive of battleships, aircraft carriers, cruisers, destroyers, and sub- (a) Within the limitations indicated marines (referred to as warships in this in the introductory paragraph of this part) and certain public domain lands section, the Department of the Navy is and mineral interests, may be disposed authorized to sell its surplus personal of under the authority contained in the property under the authority of the Federal Property and Administrative Federal Property Act and the Act of Services Act of 1949 (63 Stat. 377), as August 10, 1956 (70A Stat. 451; 10 U.S.C. amended (40 U.S.C. 471), in this part re- 7305), and to report its real property, ferred to as the Federal Property Act.

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when excess to the needs of the Depart- tractor under terms vesting title in the ment of Defense, to the General Serv- Government but in excess of the ices Administration for ultimate dis- amount required for performance of a position by that agency or the Depart- contract) may be sold to the contractor ment of the Navy. The Department of or otherwise disposed of in accordance the Navy is also authorized to transfer with the terms and conditions set forth real and personal property to other de- in the contract and applicable Navy in- partments or agencies of the Govern- structions. See also parts 8 and 13 and ment, and to sell, transfer and other- §§ 30.2 and 30.3 of this title. wise dispose of certain vessels and (b) Industrial and plant equipment other personal property under special provided by the Government to a con- statutory authority. Ships other than tractor for the performance of a con- warships are sold pursuant to the Fed- tract may, subject to applicable statu- eral Property Act (40 U.S.C. 484(i)) by tory authority and Navy instructions the U.S. Maritime Commission if over be disposed of in accordance with the 1500 gross tons and determined by the applicable contract terms and condi- Maritime Commission to be merchant tions. vessels or capable of conversion to (c) Transfer to nonprofit education or merchant use. In certain cases, Navy research institutions of title to equip- vessels and other property may be ment purchased with funds available transferred or otherwise made avail- for grants or contracts for the conduct able to other agencies without reim- of basic or applied research is author- bursement (sec. 616, 73 Stat. 381; 40 ized by the act of September 6, 1958 U.S.C. 483a). (sec. 2, 72 Stat. 1793; 42 U.S.C. 1892) and (b) This part sets forth the general implementing regulations (§§ 13.800 to procedures and authority with respect 13.803 of this title). to the disposition of property under the control of the Department of the Navy § 736.3 Sale of personal property. except disposition of property to for- (a) The sale of personal property de- eign governments under the authority termined to be surplus or foreign ex- of such statutes as the Aid to Amer- cess or for exchange purposes is au- ican Republics Act (54 Stat. 396; 22 thorized by the Federal Property Act U.S.C. 521) and the Mutual Defense As- and regulations of the Administrator of sistance Control Act of 1951 (65 Stat. General Services (see § 736.1(a)). Certain 644; 22 U.S.C. 1611–1613c). vessels stricken from the Naval Vessel (c) The Department of Defense Mate- Register may be sold under the act of rial Disposition Manual and directives August 19, 1956, (70A Stat. 451, 10 U.S.C. issued by the Department of the Navy 7305). cover the disposition of all property of (b) Sales are by sealed bid, auction, the Department including disposition spot bid or, under limited conditions under the Federal Property Act. The prescribed by law, negotiated method. Defense Material Disposition Manual is A deposit, generally 20 percent of the available on the internet at amount bid, is normally required of www.drms.dla.mil. Section XXIV of each bidder. Awards are usually made Navy Procurement Directives contains to the highest acceptable bidder. Nor- similar information applicable to the mally property may not be removed disposition of contractor inventory. from Government control until full These publications are available for in- payment is made. Arrangements must spection at the offices of the Com- be made by the successful bidder to re- mandants of the several Naval Dis- move the property within the time tricts; and at various Navy and Marine limit prescribed in the invitation to Corps installations. 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; 65 FR 53590, Sept. 5, 2000] terest of the Government. (1) The Department of Defense has a § 736.2 Dispositions under contracts. contact point for any person interested (a) Contractor inventory (that is, in purchasing surplus Department of personal property acquired by a con- Defense personal property within the

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United States. The contact point is the Commonwealth of Puerto Rico, the Defense Surplus Bidders Control Office, Virgin Islands, American Samoa, Defense Reutilization and Marketing Guam, and the Trust Territory of the Office, Federal Center Building, Battle Pacific Islands, Department of the Creek, Michigan. This office maintains Navy real property determined to be a single bidders list for all military de- excess to the Department of Defense is partments. 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 blank) are listed in a pamphlet ‘‘How (5 U.S.C. 301, 40 U.S.C. 471–514) to Buy Surplus Personal Property [35 FR 10008, June 18, 1970, as amended at 41 From The Department of Defense,’’ FR 26008, June 24, 1976] prepared by the Defense Reutilization and Marketing Office, Defense Logis- § 736.5 Disposition of real and per- tics Agency, Battle Creek, Michigan. sonal property under special statu- (2) Retail sales at fixed prices based tory authority. on the current market value are con- In addition to the authority to sell ducted by certain Defense property dis- personal property to the general public posal offices. and to transfer real property to the [39 FR 18442, May 28, 1974, as amended at 65 General Services Administration under FR 53590, Sept. 5, 2000] the provisions of §§ 736.3 and 736.4, the Department of the Navy has further § 736.4 Disposition of real property. authority to dispose of personal and (a) Real property, including related real property as described in para- personal property, determined to be ex- graphs (a) through (h) of this section. cess to the needs of the Department of (a) Disposition to other Government Defense is subject to disposition under agencies. The Department of the Navy the Federal Property Act. In the States is authorized to transfer real and per- of the United States, the District of sonal property to other governmental Columbia, the Commonwealth of Puer- departments or agencies under statutes to Rico, the Virgin Islands, American applicable to particular agencies, the Samoa, Guam, and the Trust Territory act of March 4, 1915 (38 Stat. 1084) as of the Pacific Islands, Department of amended (31 U.S.C. 686) and, as to cer- the Navy real property determined to tain personal property, under direc- be excess to the Department of Defense tives of the General Services Adminis- and not required for the needs and the tration. discharge of the responsibilities of all (b) Leases. Real and personal property Federal agencies, is generally disposed under the control of the Department of of by the General Services Administra- the Navy not excess to its needs and tion as surplus property. Exceptions, not for the time being required for pub- however, are property worth less than lic use may be leased, when the Sec- $1,000; certain leases, permits, licenses, retary of the Navy shall deem it to be easements or similar interests; certain advantageous to the Government, to fixtures, structures, and improve- such lessee or lessees and upon such ments; and other special classes of terms and conditions as in his judg- property which, when determined to be ment will promote the national defense surplus, are disposed of by the Com- or will be in the public interest. Such mander, Naval Facilities Engineering leases shall be for a period of not ex- Command, Field Division Directors, ceeding five years unless the Secretary and District or Area Public Works Offi- determines that a longer period will cers under authority delegated in Title promote the national defense or will be II, Regulations of the General Services in the public interest. Such leases are Administration, or under special dele- authorized by the act of August 10, 1956 gations from the Administrator of Gen- (70A Stat. 150; 10 U.S.C. 2667). Leases of eral Services. Government-owned real property where (b) Outside the States of the United the estimated annual rental is more States, the District of Columbia, the than 50,000 must be deferred for 30 days

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after reporting the proposed trans- change or sell similar items which are action to the Armed Services Commit- not excess to its needs, and apply the tees of Congress in accordance with the exchange allowance or proceeds of sale act of August 10, 1956 70A Stat. 147), as in whole or part payment for the items amended (10 U.S.C. 2662). acquired. (c) Disposition of strategic materials. (f) Donations and loans of personal Strategic materials may be disposed of property. (1) Certain personal property by the Department of the Navy under of the Department of the Navy, includ- the authority described in § 736.3 only ing vessels, which become surplus, may when such property is excess to the be donated or loaned under the author- needs of the Department of Defense and ity contained in the Federal Property when the Director of the Office of Civil Act and the act of August 10, 1956 (70A and Defense Mobilization (acting Stat. 453; 10 U.S.C. 2572, 7308, 7545) to: through the Defense Materials Service (i) Schools such as maritime acad- of the General Services Administra- tion) determines that the amounts of emies or military, naval, Air Force or such materials to be disposed of are so Coast Guard preparatory schools, des- small as to make transfer thereof ignated by the Secretary of Defense as under the act of June 7, 1939 (53 Stat. educational activities of special inter- 811) as amended (50 U.S.C. 98–98h) eco- est to the armed services. nomically impractical, or such mate- (ii) Accredited schools, colleges and rials are not necessary for stockpile re- universities and educational institu- quirements determined in accordance tions which have been exempted from with section 2 of said act. taxation under section 501(c)(3) of the (d) Disposition of vessels. Vessels Internal Revenue Code of 1954 and stricken from the Naval Vessel Reg- State Departments of Education for ister may be sold by the Department of use by tax exempt educational institu- the Navy under the authority and sub- tions. Applications for donation shall ject to the limitations of the Federal be approved by the Department of Property Act (sections 203(i), 63 Stat. Health and Human Services and the 386, 40 U.S.C. 484(i)) and the act of Au- Administrator of General Services and gust 10, 1956, (70A Stat. 451; 10 U.S.C. may be filed with the field representa- 7304, 7305, 7307) and Executive Order tive of the Department of Health and 11765 (39 FR 2577). However, pursuant to Human Services located nearest the ap- section 203(i) of the Federal Property plicant. Act (40 U.S.C. 484(i)), the United States (iii) States, Territories, Common- Maritime Commission disposes of ves- wealths, or possessions of the United sels, other than warships, if over 1,500 States and political subdivisions, mu- gross tons and determined by the Mari- nicipal corporations, veterans associa- time Commission to be merchant ves- tions, soldiers’ monument associations, sels or capable of conversion to mer- State museums, and non-profit edu- chant use. Vessels may be sold for scrapping or for use under such author- cational museums, subject in certain ity or, if such sale is not feasible, the cases to the approval of the Curator for Naval Sea Systems Command may ar- the Navy and to objection by a concur- range for the demolition of a vessel and rent resolution of the Congress. sale of the resulting materials by an (2) Applications other than those to authorized selling activity as set forth be filed with the field representative of in § 736.3. the Department of Health and Human (e) Exchange or sale of property for Services shall be filed with the Depart- replacement purposes. Under the au- ment of the Navy and referred to the thority of section 201(c) of the Federal cognizant Command or Headquarters Property Act (40 U.S.C. 481(c)) and con- for action except that applications for sistent with Department of Defense im- vessels and district craft shall be re- plementing regulations, DOD 4140.1–R ferred to the Chief of Naval Operations, and the Defense Federal Acquisition applications for boats to the Naval Sea Regulation Supplement, the Depart- Systems Command, and applications ment of the Navy is authorized in the for barges, floating drydocks, and other acquisition of new equipment to ex- floating construction equipment to the

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Naval Facilities Engineering Com- nique or invention), or of patents, proc- mand. Detailed instructions with re- esses, techniques or inventions, irre- spect to such applications are set forth spective of cost, the Department of the in the Defense Material Disposition Navy must notify the Attorney Gen- Manual. eral of the proposed disposal and the (g) Disposition of equipment for re- probable terms and conditions thereof. search. Under the act of September 6, Within a reasonable time, in no event 1958 (72 Stat. 1793; 42 U.S.C. 1891–1893), to exceed sixty days after receiving equipment purchased with research such notification, the Attorney Gen- grant or contract funds may be trans- eral will advise the Department of the ferred for the conduct of basic or ap- Navy, whether, insofar as he can deter- plied scientific research to (1) non-prof- mine, the proposed disposition would it institutions of higher education or tend to create or maintain a situation (2) non-profit organizations whose pri- inconsistent with the antitrust laws. In mary purpose is the conduct of sci- such cases, the Department of the entific research. An annual report of Navy must obtain from the proposed such transfers must be made to the ap- purchaser information regarding its fi- propriate Committees of Congress. nancial status, the anticipated use to (h) Assistance in major disaster relief. be made of the property and any other Under the Disaster Relief Act of 1974 information as may be required by the (Pub. L. No. 93–288) and subject to di- Attorney General; the award or final rections of the Federal Emergency sale must be delayed until the Attor- Management Agency, certain excess ney General advises of his determina- personal property may be utilized for tion. or donated to States and local governments for relief of suffering and dam- PART 744—POLICIES AND PROCE- age resulting from major disasters. DURES FOR THE PROTECTION OF Surplus property may also be disposed PROPRIETARY RIGHTS IN TECH- of to States for sale to small business NICAL INFORMATION PROPOSED concerns affected by specific disasters FOR RELEASE TO FOREIGN GOV- such as hurricanes. ERNMENTS [25 FR 4674, May 27, 1960, as amended at 25 FR 11066, Nov. 22, 1960, 26 FR 12158, Dec. 20, Sec. 1961; 35 FR 10008, June 18, 1970; 39 FR 18442, 744.1 Purpose. May 28, 1974; 41 FR 26008, June 24, 1976; 47 FR 744.6 Authorization for release without con- 28371, June 30, 1982; 65 FR 53590, Sept. 5, 2000; sent of the owner. 65 FR 67628, Nov. 13, 2000] 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,

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maintenance and repair and technical AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031; 40 information, known or claimed to be U.S.C. 486(c); and 41 CFR 101–4.1. proprietary, which is being considered SOURCE: 41 FR 55712, Dec. 22, 1976, unless for release in accordance with otherwise noted. § 264.4(d)(3), may be released when the Chief of Naval Operations or his des- § 746.1 Purpose. ignee or a bureau chief or deputy bu- This part implements Department of reau chief determines under the au- Defense Directive 5535.3 of November 2, thority of the Act that such action 1973 and 41 CFR subpart 101–4.1, and clearly warrants the assumption of fi- sets forth the policy, terms, conditions, nancial liability that may be incurred and procedures for the licensing of and there is no acceptable substitute rights in domestic patents and patent equipment or information for which applications vested in the United consent to release is obtainable or States of America and in the custody which is not proprietary. of the Department of the Navy. (b) Where any technical information is released in accordance with this sec- § 746.2 Policy. tion, such release shall be subject to the conditions of release set forth in (a) A major premise of the Presi- § 264.4(f). dential Statement fo Government Pat- (c) Military equipment, including the ent Policy, August 23, 1971 (36 FR 16887, information essential for its operation, August 26, 1971), is that government in- maintenance, and repair, known or ventions normally will best serve the claimed to be privately owned and for public interest when they are devel- which consent for release cannot be ob- oped to the point of practical applica- tained may be furnished to foreign gov- tion and made available to the public ernments in accord with § 264.4(d)(3) in the shortest possible time. The without further legal authorization, granting of express nonexclusive or ex- provided such release is made pursuant clusive licenses for the practice of to the grant aid provisions of the Mu- these inventions may assist in the actual Security Act of 1954, as amended, complishment of the national objective and provided further, there is no ac- to achieve a dynamic and efficient ceptable substitute equipment or infor- economy. mation for which consent for release is (b) The granting of nonexclusive li- obtainable or which is not proprietary. censes generally is preferable, since the invention is thereby laid open to all in- [24 FR 10715, Dec. 25, 1959, as amended at 44 terested parties and serves to promote FR 30686, May 29, 1979] competition in industry, if the invention is in fact promoted commercially. PART 746—LICENSING OF GOV- However, to obtain commercial utiliza- ERNMENT INVENTIONS IN THE tion of the invention, it may be nec- CUSTODY OF THE DEPARTMENT essary to grant an exclusive license for OF THE NAVY a limited period of time as an incentive for the investment of risk capital to Sec. achieve practical application of an in- 746.1 Purpose. vention. 746.2 Policy. (c) Whenever the grant of an exclu- 746.3 Delegation of authority. sive license is deemed appropriate, it 746.4 Definitions. shall be negotiated on terms and condi- 746.5 Government inventions available for tions most favorable to the public in- licensing. terest. In selecting an exclusive li- 746.6 Nonexclusive license. censee, consideration shall be given to 746.7 Limited exclusive license. the capabilities of the prospective li- 746.8 Additional licenses. 746.9 Royalties. censee to further the technical and 746.10 Reports. market development of the invention, 746.11 Procedures. his plan to undertake the development, 746.12 Litigation. the projected impact on competition, 746.13 Transfer of custody of Government and the benefit to the Government and inventions. the public. Consideration shall be given

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also to assisting small business and mi- ditions as to establish that the inven- nority business enterprises, as well as tion is being worked and that its bene- economically depressed, low income, fits are reasonably accessible to the and labor surplus areas, and whether public. each or any applicant is a United States citizen or corporation. Where § 746.5 Government inventions avail- there is more than one applicant for an able for licensing. exclusive license, that applicant shall Government inventions normally will be selected who is determined to be be made available for the granting of most capable of satisfying the criteria express nonexclusive or limited exclu- and achieving the goals set forth in sive licenses to responsible applicants this part. according to the factors and conditions (d) Subject to the following: (1) Any set forth in §§ 746.6 and 746.7, subject to existing or future treaty or agreement the applicable procedures of § 746.11. between the United States and any for- The Chief of Naval Research may re- eign government or inter-govern- move a prior designation of avail- mental organization, or ability for licensing of any patent(s) or (2) Licenses under or other rights to patent application(s), provided that no inventions made or conceived in the outstanding licenses to that invention course of or under Department of the are in effect. Navy research and development contracts where such licenses or other § 746.6 Nonexclusive license. rights to such inventions are provided 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 patent licensing program, with the au- the public. 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 (a) Government invention means an in- States of America, its territories and vention covered by a domestic patent possessions, the Commonwealth of or patent application that is vested in Puerto Rico, and the District of Colum- the United States and in the custody of bia, or in any lesser geographic portion the Department of the Navy, and is thereof. designated by the Chief of Naval Re- (4) After termination of a period search as appropriate for the grant of specified in the license agreement, the an express non-exclusive or exclusive Chief of Naval Research may restrict license. the license to the fields of use and/or (b) To the point of practical application geographic areas in which the licensee means to manufacture in the case of a has brought the invention to the point composition or product, to practice in of practical application and continues the case of a process, or to operate in to make the benefits of the invention the case of a machine, under such con- reasonably accessible to the public.

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(5) The license may extend to subsidi- (b) Selection of exclusive licensee. An aries and affiliates of the licensee but exclusive licensee will be selected on shall be nonassignable without ap- bases consistent with the policy set proval of the Chief of Naval Research, forth in § 746.2 and in accordance with except to the successor of that part of the procedures set forth in § 746.11. 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 rein 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 less than the terminal portion of the (1) The invention has been published patent, the period remaining being suf- as available for licensing pursuant to ficient to make the invention reason- paragraph (a) of § 746.11 for a period of ably available for the grant of a non- at least six months; exclusive license; and such period of (2) The Chief of Naval Research has exclusivity shall not exceed 5 years un- determined that: less the Chief of Naval Research deter- (i) The invention may be brought to mines, on the basis of a written sub- the point of practical application in mission supported by a factual show- certain fields of use and/or in certain ing, that a longer period is reasonably geographical locations by exclusive li- necessary to permit the licensee to censing; enter the market and recoup his rea- (ii) The desired practical application sonable costs in so doing. has not been achieved under any non- (4) The license shall require the li- exclusive license granted on the inven- censee to bring the invention to the tion; and point of practical application within a (iii) The desired practical application period specified in the license, or with- is not likely to be achieved expedi- in a longer period as approved by the tiously in the public interest under a Chief of Naval Research, and to con- nonexclusive license or as a result of tinue to make the benefits of the in- further government-funded research or vention reasonably accessible to the development; public. (3) The notice of the prospective li- (5) The license shall require the licensee has been published, pursuant to censee to expend a specified minimum paragraph (d) of § 746.11 for at least 60 amount of money and/or take other days; and specified actions, within a specified pe- (4) After termination of the period riod of time after the effective date of set forth in paragraph (a)(3) of § 746.7 the license, in an effort to bring the in- the Chief of Naval Research has deter- vention to the point of practical appli- mined that no applicant for a non- cation. exclusive license has brought or will (6) The license shall be subject to the bring, within a reasonable period, the irrevocable, royalty-free right of the invention to the point of practical ap- Government of the United States to plication, as specified in the exclusive practice and have practiced the inven- license, and that to grant the exclusive tion throughout the world, by or on be- license would be in the public interest. half of the Government of the United

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States, and by or on behalf of any for- tions when he determines that to do so eign government or intergovernmental would provide for an equitable ex- organization pursuant to any existing change of patent rights. The following or future treaty or agreement with the exemplify circumstances wherein such United states. If the Chief of Naval Re- licenses may be granted: search finds it to be in the public inter- (a) In consideration of the settlement est, this license may also be expressly of an interference; subject to this same royalty-free right (b) In consideration of a release of a by or on behalf of state and municipal claim of infringement; or governments. (c) In exchange for, or as part of, the (7) The license shall reserve to the consideration for a license under ad- Chief of Naval Research the right to re- versely held patents. quire the licensee to grant sublicenses to responsible applicants on terms that § 746.9 Royalties. are reasonable in the circumstances: (a) Nonexclusive license. Normally, (i) The extent that the invention is royalties shall not be changed under required for public use by government nonexclusive licenses granted to regulations, or United States citizens and United (ii) As may be necessary to fulfill States corporations on government in- health or safety needs, or ventions; however, the Chief of Naval (iii) For other public purposes stipu- Research may require other consider- lated in the license. ation. (8) The license may extend to subsidi- (b) Limited exclusive license. A limited aries and affiliates of the licensee but exclusive license on a government in- shall be nonassignable without ap- vention shall contain a royalty provi- proval of the Chief of Naval Research, sion and/or other consideration flowing except to successors of that part of the to the Government. licensee’s business to which the invention pertains. § 746.10 Reports. (9) An exclusive licensee may grant A license shall require the licensee to sublicenses under his license, subject submit periodic reports on his efforts to the approval of the Chief of Naval to achieve practical application of the Research. Each sublicense granted by invention. The reports shall contain in- an exclusive licensee shall make ref- formation within his knowledge, or erence to the exclusive license, includ- which he may acquire under normal ing the rights retained by the Govern- business practices, pertaining to the ment under the exclusive license, and a commercial use being made of the in- copy of such sublicense shall be fur- vention, and other information which nished to the Chief of Naval Research. the Chief of Naval Research may deter- (10) The license may be subject to mine is pertinent to its licensing ac- such other terms as may be in the pub- tivities and is specified in the license. lic interest. (11) The Government shall make no § 746.11 Procedures. representation or warranty as to valid- (a) Publication requirements. The Chief ity of any licensed application(s) or of Naval Research shall cause to be patent(s), or of the scope of any of the published in the FEDERAL REGISTER, claims contained therein, or that the the Official Gazette of the United exercise of the license will not result in States Patent and Trademark Office, the infringement of any other pat- and at least one other publication that ent(s), nor shall the Government as- the Chief of Naval Research deems sume any liability whatsoever result- would best serve the public interest, a ing from the exercise of the license. list of the government inventions available for licensing under the condi- § 746.8 Additional licenses. tions specified in this part. The list Subject to any outstanding licenses, shall be revised periodically to include nothing in this part shall preclude the directly, or by reference to a pre- Chief of Naval Research from granting viously published list, all inventions additional nonexclusive or limited ex- currently available for licensing. Other clusive licenses for government inven- publications on inventions available

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for licensing are encouraged, and may and marketing required to achieve the include abstracts, when appropriate, as practical application of the invention; 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 known, and any other identification of (5) Identification of other exclusive the invention; licenses granted to applicant under in- (2) Name and address of the person, ventions in the custody of other gov- company, or organization applying for ernment agencies; and the license, and whether the applicant (6) Any other facts which the appli- is a United States citizen or a United cant believes are evidence that it is in States corporation; the public interest for the Chief of (3) Name and address of the rep- Naval Research to grant an exclusive resentative of applicant to whom cor- license rather than a nonexclusive li- respondence should be sent; cense, and that such exclusive license (4) Nature and type of applicant’s should be granted to the applicant. business; (d) Published notices. (1) A notice that (5) Source of information concerning a prospective exclusive licensee has the availability of a license on this in- been selected shall be published in the vention; FEDERAL REGISTER, and a copy of the (6) Purpose for which the license is notice shall be sent to the Attorney desired and a brief description of appli- General. The notice shall include: cant’s plan to achieve that purpose; (i) Identification of the invention; (7) A statement of the fields of use (ii) Identification of the selected li- for which applicant intends to practice censee; the invention; and (iii) Duration and scope of the con- (8) A statement as to the geographic templated license; and areas in which the applicant would (iv) A statement to the effect that practice the invention. the license will be granted unless: (c) Contents of an exclusive license application. An application for an exclu- (A) An application for a nonexclusive sive license should be addressed to the license, submitted by a responsible ap- Chief of Naval Research (Code 300), Ar- plicant pursuant to paragraph (b) of lington, VA 22217, and, in addition to § 746.11, is received by the Chief of the information indicated in paragraph Naval Research within 60 days from the (b) of § 746.11, an application for an ex- publication of the notice in the FED- clusive license shall include: ERAL REGISTER, and the Chief of Naval (1) Applicant’s status, if any, in any Research determines in accordance one or more of the following categor- with his prescribed procedures, under ies: which procedures the Chief of Naval (i) Small business firm; Research shall record and make avail- (ii) Minority business enterprise; able for public inspection all decisions (iii) Location in a surplus labor area; made pursuant thereto and the basis (iv) Location in a low-income area; therefore, that the applicant has estab- and lished that he has already achieved or (v) Location in an economically deis likely to bring the invention to the pressed area; point of practical application withing a (2) A statement of applicant’s capa- reasonable period under a nonexclusive bility to undertake the development license; or

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(B) The Chief of Naval Research de- search shall furnish the licensee and termines that third party has pre- any sublicensee of record a written no- sented evidence and argument which tice of intention to modify or revoke has established that it would not be in the license, and the licensee and any the public interest to grant the exclu- sublicensee shall be allowed 30 days sive license. after such notice to remedy any breach (2) If an exclusive license has been of any covenant or agreement as re- granted pursuant to this part, notice ferred to in paragraph (e)(1) of § 746.11, thereof shall be published in the FED- or to show cause why the license ERAL REGISTER. Such notice shall in- should not be modified or revoked. clude: (f) Appeals. An applicant for a license, (i) Identification of the invention; a licensee, or such other third party (ii) Identification of the licensee; and who has participated under paragraph (iii) Duration and scope of the li- (d)(1)(iv)(B) of § 746.11 shall have the cense. right to appeal, in accordance with pro- (3) If an exclusive license has been cedures prescribed by the Chief of modified or revoked pursuant to para- Naval Research, any decision con- graph (e) § 746.11, notice thereof shall be cerning the granting, denial, interpre- published in the FEDERAL REGISTER. tation, modification, or revocation of a Such notice shall include: license. (i) Identification of the invention; (ii) Identification of the licensee; and § 746.12 Litigation. (iii) Effective date of the modification or revocation. The property interest in a patent is (e) Modification or revocation. (1) Any the right to exclude. It is not the in- license granted pursuant to this part tent of the Government to transfer the may be modified or revoked by the property right in a patent when a li- Chief of Naval Research if the licensee cense is issued pursuant to this part. at any time defaults in making any re- Accordingly, the right to sue for in- port required by the license or commits fringement shall be retained with re- any breach of covenant or agreement spect to all licenses so issued by the therein contained. Government. (2) A license may also be revoked by the Chief of Naval Research if the li- § 746.13 Transfer of custody of Govern- censee willfully makes a false statement inventions. ment of material fact or willfully The Chief of Naval Research may omits a material fact in the license ap- enter into an agreement to transfer plication or any report required in the custody of a Government invention to license agreement. another government agency for pur- (3) Before modifying or revoking any poses of administration, including the license granted pursuant to this part granting of licenses pursuant to this for any cause, the Chief of Naval Re- part.

SUBCHAPTER E—CLAIMS

PART 750—GENERAL CLAIMS 750.8 Claims: Responsibility of the adjudicating authority. REGULATIONS 750.9 Claims: Payments. 750.10 Claims: Settlement and release. Subpart A—General Provisions for Claims 750.11 Claims: Denial. 750.12 Claims: Action when suit filed. Sec. 750.13 Claims: Single service responsibility. 750.1 Scope of subpart A. 750.14–750.20 [Reserved] 750.2 Investigations: In general. 750.3 Investigations: The report. Subpart B—Federal Tort Claims Act 750.4 Claims: In general. 750.5 Claims: Proper claimants. 750.21 Scope of subpart B. 750.6 Claims: Presentment. 750.22 Exclusiveness of remedy. 750.7 Claims: Action by receiving command. 750.23 Definitions.

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750.24 Statutory/regulatory authority. tration and supervision of the resolu- 750.25 Scope of liability. tion of claims arising under the Fed- 750.26 The administrative claim. eral Tort Claims Act (subpart B of this 750.27 Information and supporting documentation. part), the Military Claims Act (subpart 750.28 Amendment of the claim. C of this part), the Nonscope Claims 750.29 Investigation and examination. Act (subpart D of this part), the Per- 750.30 Denial of the claim. sonnel Claims Act (part 751 of this 750.31 Reconsideration. chapter), the Foreign Claims Act, the 750.32 Suits under the Federal Tort Claims International Agreements Claims Act Act (FTCA). pertaining to cost sharing of claims 750.33 Damages. 750.34 Settlement and payment. pursuant to international agreements, 750.35 Attorney’s fees. the Federal Claims Collection Act of 750.36 Time limitations. 1966 (subpart A of part 757 of this chap- 750.37–750.40 [Reserved] ter), the Medical Care Recovery Act (subpart B of part 757 of this chapter), Subpart C—Military Claims Act and postal claims. 750.41 Scope of subpart C. (2) The Deputy Assistant Judge Ad- 750.42 Statutory authority. vocate General (Claims and Tort Liti- 750.43 Claims payable. gation) is the functional manager of 750.44 Claims not payable. the Navy claims system established to 750.45 Filing claim. evaluate, adjudicate, and provide liti- 750.46 Applicable law. gation support for claims arising under 750.47 Measure of damages for property the acts listed above and is responsible claims. 750.48 Measure of damages in injury or to the Judge Advocate General for the death cases. management of that system. The 750.49 Delegations of adjudicating author- claims system consists of field activi- ity. ties delegated claims processing and 750.50 Advance payments. adjudicating authority and the attor- 750.51 Final disposition. neys and support personnel assigned to 750.52 Appeal. the Claims and Tort Litigation Divi- 750.53 Cross-servicing. sion of the Office of the Judge Advo- 750.54 Payment of costs, settlements, and judgments related to certain medical or cate General. For economy of lan- legal malpractice claims. guage, Naval Legal Service Offices and 750.55 Attorney’s fees. Naval Legal Service Office Detach- 750.56–750.60 [Reserved] ments are referred to as Naval Legal Service Command Activities. Subpart D—Claims Not Cognizable Under (3) Commanding officers of com- Any Other Provision of Law mands receiving claims are responsible 750.61 Scope of subpart D. for complying with the guidance on in- 750.62 Statutory authority. vestigations in §§ 750.2 and 750.3 and the 750.63 Definitions. guidance on handling and forwarding 750.64 Claim procedures. claims found in § 750.5. 750.65 Statute of limitations. (b) This subpart A delineates general 750.66 Officials with authority to settle. investigative and claims-processing re- 750.67 Scope of liability. quirements to be followed in the han- 750.68 Claims not payable. 750.69 Measure of damages. dling of all incidents and claims within the provisions of this part. Where the AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 939, 5013, general provisions of this subpart A and 5148; E.O. 11476, 3 CFR, 1969 Comp., p. 132; conflict with the specific provisions of 32 CFR 700.206 and 700.1202. any subsequent subpart of this part, SOURCE: 57 FR 4722, Feb. 7, 1992, unless oth- the specific provisions govern. erwise noted. § 750.2 Investigations: In general. Subpart A—General Provisions for (a) Conducting the investigation. The Claims command where the incident giving rise to the claim is alleged to have hap- § 750.1 Scope of subpart A. pened is responsible for conducting an (a) General. (1) The Judge Advocate investigation in accordance with this General is responsible for the adminis- part.

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(b) Thorough investigation. Every inci- (e) Attorney work product. (1) The con- dent that may result in a claim against vening order and the preliminary state- or in favor of the United States shall ment of an investigative report pre- be promptly and thoroughly inves- pared to inquire into the facts of an in- tigated under this part. Investigations cident giving or likely to give rise to a convened for claims purposes are suffi- claim against the United States shall ciently complex that they should be include the following: performed with the assistance and This investigation has been convened and under the supervision of a judge advo- conducted, and this report prepared, in con- cate or other attorney. Where the com- templation of claims adjudication and litiga- mand has an attorney assigned, he tion and for the express purpose of assisting shall be involved in every aspect of the attorneys representing the interests of the proceedings. When an attorney is not United States. assigned to the investigating com- (2) When an investigation is prepared mand, consultation shall be sought by or at the direction of an attorney from the appropriate Naval Legal Serv- representing the Department of the ice Command activity. Navy and is prepared in reasonable an- (c) Recovery barred. Even when recov- ticipation of litigation, it is exempt ery may be barred by statute or case from mandatory disclosure under the law, all deaths, serious injuries, and Freedom of Information Act exemption substantial losses to property that are (b)(5) and is normally privileged from likely to give rise to claims must be in- discovery in litigation under the attor- vestigated while the evidence is avail- ney work product privilege. 5 U.S.C. able. Claims against persons in the 552(b)(5). Unless an attorney prepares naval service arising from the perform- the report or personally directs its ance of their official duties shall be in- preparation, the investigation may not vestigated as though they were claims be privileged, even if it was prepared in against the United States. When an in- reasonable anticipation of litigation. cident involves an actual or potential (f) Advance copy. An advance copy of claim against the United States for any investigation conducted because a property damage only and the total claim has been, or is likely to be, sub- amount likely to be paid does not ex- mitted shall be forwarded to the Naval ceed $5,000.00, an abbreviated investiga- Legal Service Command activity tive report may be submitted. Where claims office responsible for the area this monetary figure may be exceeded, where the incident giving rise to the but the circumstances indicate an ab- claim occurred. breviated report may be adequate to preserve the facts and protect the Gov- § 750.3 Investigations: The report. ernment’s claims interests, approval to (a) Purpose. The purpose of investiga- submit a limited investigative report tions into claims incidents is to gather may be sought from the nearest Naval all relevant information about the in- Legal Service Command activity. cident so adjudicating officers can ei- (d) Developing the facts. Any inves- ther pay or deny the claim. The essen- tigation convened for claims purposes tial task of the investigating officer is must focus on developing the facts of to answer the questions of who, what, the incident, i.e., the who, what, where, where, when, why and how? The Navy’s when, why, and how of the matter. best interests are served when the in- Opinions on the possible liability of the vestigation is thorough and is per- United States under any of the claims formed in a timely manner so the statutes listed above shall not be ex- claimant can be advised promptly of pressed. Early and continuous con- the action on the claim. sultation with claims attorneys at (b) Duties of the investigating officer. It Naval Legal Service Command activi- is the investigating officer’s responsi- ties is essential to ensure the timely bility: development of all necessary facts, the (1) To interview all witnesses to the identification and preservation of rel- incident and prepare summaries of evant evidence, and to void the need their comments. Obtaining signed for supplemental inquiries. statements of Government witnesses is

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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 claim and to advise such personnel charge of any other organization of the where they should file their claim. Department of Defense requests such (c) Content of the report. The written assistance from a naval commanding report of investigation shall contain officer or officer in charge, the latter information answering the questions should normally comply. If a complete mentioned in § 750.3(a) and, depending investigation is requested it will be on the nature of the incident, will in- performed in compliance with the regu- clude the following: lations of the requested service. These (1) Date, time, and exact place the investigations are normally conducted accident or incident occurred, speci- without reimbursement for per diem, fying the highway, street, or road; mileage, or other expenses incurred by (2) A concise but complete statement the investigating unit or installation. of the incident with reference to phys- (f) Report of Motor Vehicle Accident, ical facts observed and any statements Standard Form 91. RCS OPNAV 5100–6. by the personnel involved; The operator of any Government motor (3) Names, grades, organizations, and vehicle involved in an accident of any addresses of military personnel and ci- sort shall be responsible for making an vilian witnesses; immediate report on the Operator’s Re- (4) Opinions as to whether military port of Motor Vehicle Accident, Stand- or civilian employees involved in the ard Form 91. This operator’s report incident were acting within the scope shall be made even though the operator of their duties at the time; of the other vehicle, or any other per- (5) Description of the Government son involved, states that no claim will property involved in the incident and be filed, or the only vehicles involved the nature of any damage it sustained; are Government owned. An accident and, shall be reported by the operator re- (6) Descriptions of all private prop- gardless of who was injured, what property involved. erty was damaged, or who was respon- (d) Immediate report of certain events. sible. The operator’s report shall be re- The Navy or Marine Corps activity ferred to the investigating officer, who most directly involved in the incident shall be responsible for examining it

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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 prognosis, and the period of hos- involved in obtaining the opinion of a pitalization or incapacity. Navy-employed expert shall be borne (2) A Privacy Act statement for each person who was asked to furnish per- by the command to which the expert is sonal information shall be provided. attached. Medical experts shall be em- Social Security numbers of military ployed only after consultation with the personnel and civilian employees of the Chief, Bureau of Medicine and Surgery. U.S. Government should be included in (j) Action by command initiating the in- the report but should be obtained from vestigation and subsequent reviewing au- available records, not from the indi- thorities. (1) The command initiating vidual. the investigation in accordance with (3) Names, addresses, and ages of all § 750.3 or § 750.5 shall review the report civilians or military personnel injured of investigation. If additional inves- or killed; names of insurance compa- tigation is required or omissions or nies; information on the nature and ex- other deficiencies are noted, the inves- tent of injuries, degree of permanent tigation should be promptly returned disability, prognosis, period of hos- with an endorsement indicating that a pitalization, name and address of at- supplemental investigative report will tending physician and hospital, and be submitted. If the original or supple- amount of medical, hospital, and burial mental report is in order, it shall be expenses actually incurred; occupation forwarded by endorsement, with any and wage or salary of civilians injured pertinent comments and recommenda- or killed; and names, addresses, ages, tions. An advance copy of the inves- relationship, and extent of dependency tigation shall be forwarded to the of survivors of any such person fatally Naval Legal Service Command activity injured should be included. having territorial responsibility for the (4) If straying animals are involved, a area where the incident giving rise to statement as to whether the jurisdic- the claim occurred as indicated in tion has an ‘‘open range law’’ and, if so, § 750.34(c)(2)(ii). reference to such statute. (2) A reviewing authority may direct (5) A statement as to whether any that additional investigation be con- person involved violated any State or ducted, if considered necessary. The

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initial investigation should not be re- claims will be referred to a claims offi- turned for such additional investiga- cer. The officer will provide claim tion, but should be forwarded by an en- forms, advise where the forms should dorsement indicating that the supple- be filed, and inform the requester of mental material will be submitted. The the type of subtantiating information report shall be endorsed and forwarded required. Claims officers may provide to the next-level authority with appro- advice on the claims process but shall priate recommendations including an not provide advice or opinions about assessment of the responsibility for the the merits or the wisdom of filing a incident and a recommendation as to particular claim. While claims officers the disposition of any claim that may have a responsiblity to provide general subsequently be filed. If a reviewing information about claims, they must authority may be an adjudicating au- consider 18 U.S.C. 205 which makes it a thority for a claim subsequently filed, crime for an officer or employee of the one copy of the report shall be retained United States to act as an agent or an by such authority for at least 2 years attorney in the prosecution of any after the incident. claim against the United States. (3) It is essential that each investigative report reflect that a good faith ef- § 750.5 Claims: Proper claimants. fort was made to comply with the Pri- (a) Damage to property cases. A claim vacy Act of 1974 (5 U.S.C. 552a) as im- for damage to, or destruction or loss of, plemented by 32 CFR part 701, subpart property shall be presented by the F. Any indication of noncompliance owner of the property or a duly author- shall be explained either in the pre- ized agent or legal representative. liminary statement or the forwarding ‘‘Owner’’ includes a bailee, lessee, or endorsements and, when required, cor- mortgagor, but does not include a rected. The adjudicating Naval Legal mortgagee, conditional vendor, or Service Command activity listed in other person having title for security § 750.34(c)(2)(ii) has the responsibility to purposes only. ensure that remedial action is taken to (b) Personal injury and death cases. A rectify noncompliance indicated in the claim for personal injury shall be pre- investigative report prior to for- sented by the person injured or a duly warding the report to the Judge Advo- authorized agent or legal representa- cate General. tive, or, in the case of death, by the properly appointed legal representative § 750.4 Claims: In general. of the deceased’s estate or survivor (a) Claims against the United States. where authorized by State law. Claims against the United States shall (c) Subrogation. A subrogor and a receive prompt and professional dis- subrogee may file claims jointly or sep- position. Every effort will be made to arately. When separate claims are filed ensure an investigation is thoroughly and each claim individually is within and accurately completed, the claim- local adjudicating authority limits, ant’s allegations evaluated promptly, they may be processed locally, even if and where liability is established, a the aggregate of such claims exceeds check issued as quickly as possible to local monetary jurisdiction, if they do prevent further harm to a meritorious not exceed the sum for which approval claimant. Similarly, claims not payble of the Department of Justice is re- will be processed promptly and the quired (currently, $100,000.00) under the claimant advised of the reasons for the Federal Tort Claims Act. Where they denial. exceed this amount, they shall be re- (b) Claims in favor of the United States. ferred to the Claims and Tort Litiga- Potential claims in favor of the United tion Division. States will be critically evaluated and, (d) Limitation on transfers and assign- where appropriate, promptly asserted ment. All transfers and assignments and aggressively pursued. made of any claim upon the United (c) Assistance to Claimants. Claimants States, and all powers of attorney, or- or potential claimants who inquire ders, or other authorities for receiving about their rights or the procedures to payment of any such claim, are abso- be followed in the resolution of their lutely null and void unless they are

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made after the allowance of such a § 750.7 Claims: Action by receiving claim, the ascertainment of the command. amount due, and the issuing of a war- (a) Record date of receipt. The first rant for the payment thereof. 31 U.S.C. command receiving a claim shall 203. This statutory provision does not stamp or mark the date of recipt on apply to the assignment of a claim by the letter or claim form. The envelope operation of law, as in the case of a rein which the claim was received shall ceiver or trustee in bankruptcy ap- be preserved. pointed for an individual, firm, or cor- (b) Determine the military activity in- poration, or the case of an adminis- volved. The receiving command shall trator or executor of the estate of a determine the Navy or Marine Corps person deceased, or an insurer sub- activity most directly involved with rogated to the rights of the insured. the claim—usually the command where the incident is alleged to have oc- § 750.6 Claims: Presentment. curred—and forward a copy of the (a) Written demand and Standard Form claim to that activity. The original 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 Personnel Claims Act shall be sub- the Naval Legal Service Command ac- mitted on DD Form 1842. The claim and tivity providing claims support. Wait- all other papers requiring the signature ing until endorsements have been ob- of the claimant shall be signed by the tained before providing a copy of the claimant personally or by a duly au- investigation to the cognizant claims thorized agent. If signed by an agent or adjudicating authority is neither re- legal representative, the claim shall in- quired nor desirable. The facts of the dicate the title or capacity of the per- incident must be made known to cog- son signing and be accompanied by evi- nizant claims personnel as soon as pos- dence of appointment. When more than sible. one person has a claim arising from the § 750.8 Claims: Responsibility of the same incident, each person shall file a adjudicating authority. claim separately. A subrogor and a subrogee may file a claim jointly or (a) Reviewing prior actions. The adju- separately. dicating authority determines whether an adequate investigation has been (b) To whom submitted. Claims under conducted, whether the initial receipt the Federal Tort and Military Claims date is recorded on the face of the Acts shall be submitted to the com- claim, and whether all holders of the manding officer of the Navy or Marine investigation, if completed, are advised Corps activity involved, if known. Oth- of the receipt of the claim. erwise, they shall be submitted to the (b) Determining sufficiency of the claim. commanding officer of any Navy or The claim should be reviewed and a de- Marine Corps activity, preferably the termination of its sufficiency made. If one nearest to where the accident oc- the claim is not sufficient as received, curred, the local Naval Legal Service it shall be returned to the party who Command activity, or to the Judge Ad- submitted it along with an explanation vocate General, 200 Stovall Street, Al- of the insufficiency. This does not con- exandria, VA 22332–2400. stitute denial of the claim. The claim

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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 the claimant is informed that the final (1) When the claim has been for- decision on the claim will be made at a warded to the Judge Advocate General higher level. prior to the initiation of a suit, litiga- (3) If a claim cannot be approved, set- tion reports originate in the Claims tled, compromised, or denied within and Tort Litigation Division of the Of- the adjudicating authority limits es- fice of the Judge Advocate General. tablished in this instruction, the claim (2) When, however, the claim has not shall be referred promptly to the Judge been forwarded and is still under the Advocate General. The following mate- cognizance of the Naval Legal Service rials shall be forwarded with the claim: Command claims office, that command (i) An official endorsement or letter will ordinarily be required to prepare of transmittal containing a rec- and forward the litigation report to the ommendation on resolution of the requesting organization. In this in- claim. stance, the litigation report should be (ii) A memorandum of law containing sent directly to the cognizant Depart- a review of applicable law, an evalua- ment of Justice official or U.S. Attor- tion of liability, and recommendation ney with a copy of the report and all on the settlement value of the case. enclosures to the Judge Advocate Gen- This memorandum should concentrate eral. on the unusual aspects of applicable law, chronicle the attempts to resolve § 750.9 Claims: Payments. the claim at the local level, provide in- Claims approved for payment shall be formation about the availability of expeditiously forwarded to the dis- witnesses, and outline any other infor- bursing office or the General Account- mation material to a resolution of the ing Office depending on the claims act claim, i.e. prior dealings with the involved and the amount of the re- claimant’s attorney, local procedural quested payment. Generally, payment rules, or peculiarities that may make of a Federal tort claim above $2,500.00 trial difficult. The memorandum requires submission of the payment should not repeat information readily voucher to the General Accounting Of- obtained from the investigative report fice. All other field authorized pay- and should be tailored to the comment vouchers are submitted directly plexity of the issues presented. An ab- to the servicing disbursing office for breviated memorandum should be sub- payment.

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§ 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 settlement agreement has been re- diately to the commanding officer of ceived. the servicing Naval Legal Service Com- (b) Release. (1) Acceptance by the mand activity who shall take any nec- claimant of an award or settlement essary action and provide prompt noti- made by the Secretary of the Navy or fication to the Judge Advocate Gen- designees, or the Attorney General or eral. The commencement of a civil ac- designees, is final upon acceptance by tion against an employee of the Navy the claimant. Acceptance is a complete for actions arising from the perform- release by claimant of any claim ance of official duties shall be reported against the United States by reason of in the same manner. the same subject manner. Claimant’s (b) Steps upon commencement of civil acceptance of an advance payment does action. Upon receipt by the Judge Ad- not have the same effect. vocate General of notice from the De- (2) The claimant’s acceptance of an partment of Justice or other source award or settlement made under the that a civil action involving the Navy provisions governing the administra- has been initiated under the civil active settlement of Federal tort claims tion provisions of the Federal Tort or the civil action provisions of 28 Claims Act, and there being no inves- U.S.C. 1346(b) also constitutes a complete release of any claim against any tigative report available at the head- employee of the Government whose act quarters, a request shall be made to or omission gave rise to the claim. the commanding officer of the appropriate Naval Legal Service Command § 750.11 Claims: Denial. activity for an investigative report A final denial of any claim within into the incident. If there is not a com- this chapter shall be in writing and pleted investigation, the request shall sent to the claimant, his attorney, or be forwarded to the appropriate naval legal representative by certified or reg- activity to convene and complete such istered mail with return receipt re- a report. The commanding officer of quested. The denial notification shall the Naval Legal Service Command ac- include a statement of the reason or tivity shall determine whether an ad- reasons for the denial. The notification ministrative claim had been filed and, shall include a statement that the if available information indicates none claimant may: had, advise the Office of the Judge Ad- (a) If the claim is cognizable under vocate General (Claims and Tort Liti- the Federal Tort Claims Act, file suit gation Division) immediately. in the appropriate United States Dis- trict Court within 6 months of the date § 750.13 Claims: Single service respon- of the denial notification. sibility. (b) If the claim is cognizable under (a) The Department of Defense has the Military Claims Act, appeal in assigned single-service responsibility writing to the Secretary of the Navy within 30 days of the receipt of the de- for processing claims in foreign coun- nial notification. The notice of denial tries under the following acts. The shall inform the claimant or his rep-

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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 1966 (31 U.S.C. 3701); the Act of June This subpart provides information re- 1921 (31 U.S.C. 3702), claims and de- garding the administrative processing mands by the U.S. Government; and and consideration of claims against the (8) Public Law 87–212 (10 U.S.C. 2736), United States under the FTCA. The advance or emergency payments. FTCA is a limited waiver of sovereign (b) Single service assignments for immunity. Under the FTCA, an indi- processing claims mentioned above are vidual can seek money damages for as follows: personal injury, death, or property (1) Department of the Army: Austria, damage caused by the negligent or Belgium, El Salvador, France, the Fed- wrongful act or omission of a Federal eral Republic of Germany, Grenada, employee acting within the scope of Honduras, Korea, the Marshall Islands, employment. The FTCA also provides and Switzerland and as the Receiving for compensation for injuries caused by State Office in the United States under certain intentional, wrongful conduct. 10 U.S.C. 2734a and 2734b and the NATO The liability of the United States is de- Status of Forces Agreement, and other termined in accordance with the law of Status of Forces Agreements with the State where the act or omission countries not covered by the NATO occured. agreement. (2) Department of the Navy: Bahrain, § 750.22 Exclusiveness of remedy. Iceland, Israel, Italy, Portugal, and Tu- (a) The Federal Employees Liability nisia. Reform and Tort Compensation Act of (3) Department of the Air Force: Aus- 1988, Public Law 100–694 (amending 28 tralia, Azores, Canada, Cyprus, Den- U.S.C. 2679(b) and 2679(d)), provides mark, Greece, India, Japan, Luxem- that the exclusive remedy for damage bourg, Morocco, Nepal, Netherlands, or loss of property, or personal injury Norway, Pakistan, Saudi Arabia, or death arising from the negligent or Spain, Turkey, the United Kingdom, wrongful acts or omissions of all Fed- Egypt, Oman, and claims involving, or eral employees, acting within the scope generated by, the U.S. Central Com- of their employment, will be against mand (CENTCOM) and the U.S. Special the United States. This immunity from Operations Command (USSOC), that personal liability does not extend to al- arise in countries not specifically as- legations of constitutional torts, nor to allegations of violations of statutes specifically authorizing suits against 1 Copies may be obtained if needed, from Commanding Officer, U.S. Naval Publica- individuals. tions and Forms Center, 5801 Tabor Avenue, (b) Other statutory provisions create Philadelphia, PA 19120. immunity from personal liability for

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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 searches, to seize evidence, or to make respondeat superior (master and serv- arrests for violations of Federal law. 28 ant) of the place where the act or omis- U.S.C. 2680(h). sion occurred. Although 28 U.S.C. 2671 (c) Government employees—(1) General. states that acting within the scope of ‘‘Employee of the Government,’’ de- employment means acting in the line fined at 28 U.S.C. 2671, includes officers of duty, the converse is not always or employees of any Federal agency, true. For administrative purposes, a members of the U.S. military or naval Government employee may be found forces, and persons acting on behalf of ‘‘in the line of duty,’’ yet not meet the a Federal agency in an official capac- criteria for a finding of ‘‘within the ity. scope of employment’’ under the law of (2) Government contractors. Govern- the place where the act or omission oc- ment (also referred to as independent) curred. contractors, are those individuals or businesses who enter into contracts § 750.24 Statutory/regulatory author- with the United States to provide ity. goods or services. Because the defini- The statutory provisions of the Fed- tion of ‘‘Federal agency,’’ found at 28 eral Tort Claims Act (FTCA) are at 28 U.S.C. 2671, specifically excludes ‘‘any U.S.C. 1346(b), 2671–2672, and 2674–2680. contractor with the United States,’’ The Attorney General of the United the United States is generally not lia- States has issued regulations on ad- ble for the negligence of Government ministrative claims filed under the contractors. There are, however, three FTCA at 28 CFR part 14. If the provi- limited exceptions to the general rule, sions of this section and the Attorney

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General’s regulations conflict, the At- dent to Federal employment. These torney General’s regulations prevail. claims will be processed as indicated in 32 CFR part 756; § 750.25 Scope of liability. (iv) Any claim for personal injury or (a) Territorial limitations. The FTCA death covered by the Federal Employ- does not apply to any claim arising in ees’ Compensation Act (5 U.S.C. 8116c); a foreign country. 28 U.S.C. 2680(k) and (v) Any claim for personal injury or Beattie v. United States, 756 F.2d 91 (D.C. death covered by the Longshore and Cir. 1984). Harbor Workers’ Compensation Act (33 (b) Exclusions from liability. Statutes U.S.C. 905 and 5 U.S.C. 8171); and case law have established cat- (vi) That portion of any claim for egories of exclusions from FTCA liabil- personal injury or property damage, ity. caused by the negligence or fault of a (1) Statutory exclusions. Section 2680 Government contractor, to the extent of Title 28 lists claims not cognizable such contractor may have assumed li- under the FTCA. They include: ability under the terms of the contract (i) Claims based on the exercise or (see United States v. Seckinger, 397 U.S. performance of, or the failure to exer- 203 (1969) and § 750.23(c)(2); cise or perform, a discretionary Gov- (vii) Any claim against the Depart- ernment function; ment of the Navy by another Federal (ii) Admiralty claims under 46 U.S.C. agency. Property belonging to the Gov- 741–752 or 781–790. Claims under the ernment is not owned by any one de- Death on the High Seas Act (46 U.S.C. partment of the Government. The Gov- 761), however, are cognizable under the ernment does not reimburse itself for FTCA. All admiralty claims will be re- the loss of its own property except ferred to the Judge Advocate General where specifically provided for by law; for adjudication. Admiralty claims and against the Navy shall be processed (viii) Any claim for damage to a vehi- under part 752 of this Chapter; cle rented pursuant to travel orders. (iii) Claims arising from intentional torts, except those referred to in § 750.26 The administrative claim. § 750.23(b); (iv) Claims arising from the combat (a) Proper claimant. See § 750.5 of this activities of the military or naval part. forces, or the Coast Guard, during time (b) Claim presented by agent or legal of war. representative. A claim filed by an agent (2) Additional claims not payable. Al- or legal representative will be filed in though not expressly statutorily ex- the name of the claimant; be signed by cepted, the following types of claims the agent or legal representative; show shall not be paid under the FTCA: the title or legal capacity of the person (i) A claim for personal injury or signing; and be accompanied by evi- death of a member of the armed forces dence of the individual’s authority to of the United States incurred incident file a claim on behalf of the claimant. to military service or duty. Compare (c) Proper claim. A claim is a notice in United States v. Johnson, 481 U.S. 681 writing to the appropriate Federal (1987); Feres v. United States, 340 U.S. 135 agency of an incident giving rise to (1950) with Brooks v. United States, 337 Government liability under the FTCA. U.S. 49 (1949); It must include a demand for money (ii) Any claim by military personnel damages in a definite sum for property or civilian employees of the Navy, paid damage, personal injury, or death al- from appropriated funds, for personal leged to have occurred by reason of the property damage occurring incident to incident. The Attorney General’s regu- service or Federal employment, cog- lations specify that the claim be filed nizable under 31 U.S.C. 3721 and the ap- on a Standard Form 95 or other written plicable Personnel Claims Regulations, notification of the incident. If a letter 32 CFR part 751; or other written notification is used, it (iii) Any claim by employees of non- is essential that it set forth the same appropriated-fund activities for per- basic information required by Standard sonal property damage occurring inci- Form 95. Failure to do so may result in

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a determination that the administra- (viii) Any other evidence or informative claim is incomplete. A suit may be tion which may affect the liability of dismissed on the ground of lack of sub- the United States. ject matter jurisdiction based on (2) Personal injury. (i) A written re- claimant’s failure to present a proper port by attending physician or dentist claim as required by 28 U.S.C. 2675(a). on the nature and extent of the injury, (d) Presentment. A claim is deemed nature and extent of treatment, any presented when received by the Navy in degree of temporary or permanent dis- proper form. A claim against another ability, the prognosis, period of hos- agency, mistakenly addressed to or pitalization, any any diminished earn- filed with the Navy shall be transferred ing capacity. In addition, the claimant to the appropriate agency, if ascertain- may be required to submit to a phys- able, or returned to the claimant. A ical or mental examination by a physi- claimant presenting identical claims cian employed by any Federal agency. with more than one agency should Upon written request, a copy of the re- identify every agency to which the port of the examining physician shall be provided; claim is submitted on every claim form presented. Claims officers shall coordi- (ii) Itemized bills for medical, dental, nate with all other affected agencies and hospital expenses incurred, or and ensure a lead agency is designated. itemized receipts of payments of such expenses; 28 CFR 14.2. (iii) A statement of expected ex- § 750.27 Information and supporting penses for future treatment; documentation. (iv) If a claim is made for lost wages, a written statement from the employer (a) Proper documentation. Depending itemizing actual time and wages lost; on the type of claim, claimants may be required to submit information, as fol- (v) If a claim is made for lost self-employed income, documentary evidence lows: showing the amount of earnings actu- (1) Death. (i) An authenticated death ally lost; and certificate or other competent evidence (vi) Any other evidence or informa- showing cause of death, date of death, tion which may affect the liability of and age of the decedent; the United States for the personal in- (ii) Decedent’s employment or occu- jury or the damages claimed. pation at time of death, including (3) Property damage. (i) Proof of own- monthly or yearly earnings and the du- ership; ration of last employment; (ii) A detailed statement of the (iii) Full names, addresses, birth amount claimed for each item of prop- dates, relationship, and marital status erty; of the decedent’s survivors, including (iii) An itemized receipt of payment identification of survivors dependent for necessary repairs or itemized writ- for support upon decedent at the time ten estimates of the cost of repairs; of death; (iv) A statement listing date of pur- (iv) Degree of support provided by de- chase, purchase price, and salvage cedent to each survivor at time of value where repair is not economical; death; and (v) Decedent’s general physical and (v) Any other evidence or informa- mental condition before death; tion which may affect the liability of (vi) Itemized bills for medical and the United States for the property burial expenses; damage claimed. (vii) If damages for pain and suffering (b) Failure to submit necessary docu- are claimed, a physician’s detailed mentation. If claimant fails to provide statement specifying the injuries suf- sufficient supporting documentation, fered, duration of pain and suffering, claimant should be notified of the defi- any drugs administered for pain, and ciency. If after notice of the deficiency, the decedent’s physical condition dur- including reference to 28 CFR 14.4, the ing the interval between injury and information is still not supplied, two death; and, follow-up requests should be sent by

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certified mail, return receipt re- ation is presented on the date it is requested. 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 include 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 request for reconsideration. § 750.29 Investigation and examina- (c) Effect of presentment of request. The tion. presentment of a proper request for re- Subpart A of this part requires an in- consideration starts a new 6-month pe- vestigation for every incident that may riod for the DON to act on the request result in a claim against or in favor of to reconsider. The claimant may not the United States. Where a previously file suit until the expiration of the new unanticipated claim is filed against the 6-month period, or until after the date Government and an investigation has of mailing of the final denial of the re- not already been conducted, the appro- quest. Final denial of a request for re- priate claims officer shall immediately consideration shall be accomplished in request an investigation. See subpart A the manner prescribed in § 750.30. 28 of this part for specific action required CFR 14.9(b). by an adjudicating authority. § 750.32 Suits under the Federal Tort § 750.30 Denial of the claim. Claims Act (FTCA). Final denial of an administrative (a) Venue. Venue is proper only in the claim shall be in writing and shall be judicial district where the plaintiff resent to the claimant, his duly author- sides or where the act or omission com- ized agent or legal representative by plained of occurred. 28 U.S.C. 1402. certified or registered mail, with re- (b) Jury trial. There is no right to turn receipt requested. The notifica- trial by jury in suits brought under the tion of final denial shall include the FTCA. 28 U.S.C. 2402. reasons for the denial. The notification (c) Settlement. The Attorney General shall include a statement informing of the United States, or designee, may the claimant of his right to file suit in arbitrate, compromise, or settle any the appropriate Federal district court action filed under the FTCA. 28 U.S.C. not later than 6 months after the date 2677. of the mailing of the notification. 28 (d) Litigation support—(1) Who pro- CFR 14.9(a). vides. The adjudicating authority holding a claim at the time suit is filed § 750.31 Reconsideration. shall be responsible for providing nec- (a) Request. Prior to the commence- essary assistance to the Department of ment of suit and prior to the expiration Justice official or U.S. Attorney re- of the 6-month period for filing suit, a sponsible for defending the Govern- claimant or his duly authorized agent ment’s interests. or legal representative may present a (2) Litigation report. A litigation re- request for reconsideration to the au- port, including a legal memorandum thority who denied the claim. The re- emphasizing anticipated issues during quest shall be in writing and shall litigation, shall be furnished to the ap- state the reasons for the requested re- propriate Department of Justice offi- consideration. A request for reconsider- cial or U.S. Attorney.

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(3) Pretrial discovery. Complete and the time of the presentment of the timely responses to discovery requests claim or on intervening facts relating are vital to the effective defense of tort to the amount of the claim. litigation. Subject to existing personnel and resources available, appro- § 750.34 Settlement and payment. priate assistance shall be provided. The (a) Settlement agreement—(1) When re- Judge Advocate General should be no- quired. A settlement agreement, signed tified promptly when special problems by the claimant, must be received prior are encountered in providing the re- to payment in every case in which the quested assistance. claim is either: (4) Preservation of evidence. Tort liti- (i) Settled for less than the full gation is often accomplished over an amount claimed, or extended period of time. Every effort (ii) The claim was not presented on a shall be made to preserve files, docu- Standard Form 95. ments, and other tangible evidence (2) Contents. Every settlement agree- that may bear on litigation. Destruc- ment must contain language indicating tion of such evidence, even in accord- payment is in full and final settlement ance with routine operating proce- of the applicable claim. Each settle- dures, undermines defense of a case. ment agreement shall contain language indicating acceptance of the set- § 750.33 Damages. tlement amount by the claimant, or (a) Generally. The measure of dam- his agent or legal representative, shall ages is determined by the law of the be final and conclusive on the claim- place where the act or omission oc- ant, or his agent or legal representa- curred. When there is a conflict be- tive, and any other person on whose between local and applicable Federal law, half or for whose benefit the claim has the latter governs. 28 U.S.C. 1346(b). been presented, and shall constitute a (b) Limitations on liability. The United complete release of any claim against States is not liable for interest prior to the United States and against any em- judgment or for punitive damages. In a ployee of the Government whose con- death case, if the place where the act duct gave rise to the claim, by reason or omission complained of occurred of the same subject matter. 28 CFR provides for only punitive damages, the 14.10(b). In cases where partial payment United States will be liable in lieu will benefit both claimant and the Gov- thereof, for actual or compensatory ernment, such as payment for property damages. 28 U.S.C. 2674. damage to an automobile, the settle- (c) Setoff. The United States is not ment agreement shall be tailored to re- obligated to pay twice for the same in- flect the terms of the partial settle- jury. Claimants under the FTCA may ment. All settlement agreements shall have received Government benefits or contain a recitation of the applicable services as the result of the alleged statutory limitation of attorneys fees. tort. The cost of these services or bene- 28 U.S.C. 2678. fits shall be considered in arriving at (b) DON role in settlement negotiations any award of damages. For example, involving the U.S. Attorney or DOJ. the cost of medical or hospital services Agency concurrence is generally furnished at Government expense, in- sought by the Department of Justice or cluding CHAMPUS payments, shall be U.S. Attorney’s office prior to settle- considered. Additionally, benefits or ment of suits involving the DON. Re- services received under the Veterans quests for concurrence in settlement Act (38 U.S.C. 101–800) must be consid- proposals shall be referred to the ap- ered. Brooks v. United States, 337 U.S. 49 propriate DON adjudicating authority (1949). with primary responsibility for moni- (d) Suit. Any damage award in a suit toring the claim. Adjudicating authori- brought under the FTCA is limited to ties shall consult with the Judge Advo- the amount claimed administratively cate General concerning proposed set- unless based on newly discovered evi- tlements beyond their adjudicating au- dence. 28 U.S.C. 2675(b). Plaintiff must thority. prove the increased demand is based on (c) Payment of the claim—(1) Statutory facts not reasonably discoverable at authority. Pursuant to 28 U.S.C. 2672

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and in accordance with 28 CFR 14.6(a), out of the same incident or trans- the Secretary of the Navy or designee, action. acting on behalf of the United States, (2) Specific delegation and designa- may compromise or settle any claim tion—(i) Payment authority. filed against the Navy under the FTCA, Federal Tort provided any award, compromise, or Delegated and designated authority Claims Act settlement by the Navy in excess of $100,000.00 may be effected only with Judge Advocate General ...... Unlimited. Deputy Judge Advocate General ...... Unlimited. the prior written approval of the Attor- Assistant Judge Advocate General (Gen- Unlimited. ney General or designee. Title 28 CFR eral Law). 14.6 requires consultation with the De- Deputy Assistant Judge Advocate Gen- $100,000.00. eral (Claims and Tort Litigation) and partment of Justice prior to com- Deputy Division Director. promise or settlement of a claim in any Head, Federal Tort Claims Branch, $50,000.00. amount when: Claims and Tort Division, OJAG. Commanding Officers of Naval Legal $25,000.00. (i) A new precedent or a new point of Service Offices; Officers in Charge of law is involved; Naval Legal Service Office Detach- (ii) A question of policy is or may be ments when Specifically Designated by Cognizant Commanding Officers of involved; Naval Legal Service Offices. (iii) The United States is or may be entitled to indemnity or contribution Any payment of over $100,000.00 must from a third party and the agency is be approved by the Department of Jus- unable to adjust the third party claim; tice. In addition, the authority to deny (iv) The compromise of a particular Federal Tort Claims is double the Fed- claim, as a practical matter, will or eral Tort Claims Act approval author- may control the disposition of a re- ity shown above. The Judge Advocate lated claim in which the amount to be General, the Deputy Judge Advocate paid may exceed $100,000.00; or General, the Assistant Judge Advocate (v) The DON is informed or is other- General (General Law), and the Deputy wise aware that the United States or Assistant Judge Advocate General an employee, agent, or cost-plus con- (Claims and Tort Litigation) may deny tractor of the United States is involved Federal Tort Claims in any amount. in litigation based on a claim arising (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 220Ð223). NAVLEGSVCOFF Norfolk ...... Virginia (less Northern Virginia area—zip 220Ð223), 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). NAVLEGSVCOFF Pensacola...... Florida [Pensacola/Panama City area (zip 324Ð325)], 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 including 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).

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Responsible command Territory

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 longitude 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 cluded and the day the claim was pre- $2,500.00 or less are paid from DON ap- sented included. propriations. Claims approved in excess (b) Amendments. Upon timely filing of of $2,500.00 are paid from the judgment an amendment to a pending claim, the fund and must be forwarded to the DON shall have 6 months to make a United States General Accounting Of- final disposition of the claim as amend- fice (GAO) for payment. 28 CFR ed, and the claimant’s option to file 14.10(a). Claims arising out of the oper- suit under 28 U.S.C. 2675(a) shall not ation of nonappropriated-fund activi- accrue until 6 months after the pre- ties and approved for payment shall be sentment of an amendment. 28 CFR forwarded to the appropriate non- 14.2(c). appropriated-fund activity for pay- (c) Suits. A civil action is barred un- ment. less suit is filed against the United States not later than 6 months after § 750.35 Attorney’s fees. the date of mailing of notice of final denial of the claim. 28 U.S.C. 2401(b). Attorney’s fees are limited to 20 per- The failure of the DON to make final cent of any compromise or settlement disposition of a claim within 6 months of an administrative claim, and are after it is presented shall, at the option limited to 25 percent of any judgment of the claimant any time thereafter, be rendered in favor of a plaintiff, or of deemed a final denial of the claim. 28 any settlement accomplished after suit U.S.C. 2675(a). is filed. These amounts are to be paid out of the amount awarded and not in §§ 750.37–750.40 [Reserved] addition to the award. 28 U.S.C. 2678. Subpart C—Military Claims Act § 750.36 Time limitations. (a) Administrative claim. Every claim § 750.41 Scope of subpart C. filed against the United States under This section prescribes the sub- the FTCA must be presented in writing stantive bases and special procedural within 2 years after the claim accrues. requirements for the settlement of 28 U.S.C. 2401(b). Federal law deter- claims against the United States for mines the date of accrual. A claim ac- death, personal injury, or damage, loss, crues when the claimant discovers or or destruction of property: reasonably should have discovered the (a) Caused by military personnel or ci- existence of the act giving rise to the vilian employees of the Department of the claim. In computing the statutory time Navy (DON) (hereinafter DON personnel). period, the day of the incident is ex- For the purposes of this section, DON

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personnel include all military per- booms, training and field exercises, and sonnel of the Navy and Marine Corps, maneuvers that include operation of volunteer workers, and others serving aircraft and vehicles, use and occu- as employees of the DON with or with- pancy of real estate, and movement of out compensation, and members of the combat or other vehicles designed espe- National Oceanic and Atmospheric Ad- cially for military use. Activities inci- ministration or of the Public Health dent to combat, whether or not in time Service when serving with the DON. of war, and use of DON personnel dur- DON personnel does not include DON ing civil disturbances are excluded. contractors or their employees. (b) Specific claims payable. Claims (b) Incident to noncombat activities of payable by the DON under § 750.43(a) (1) the DON. Claims for personal injury or and (2) shall include, but not be limited death of a member of the Armed Forces to: or Coast Guard, or civilian officer or (1) Registered or insured mail. Claims employee of the U.S. Government for damage to, loss, or destruction, whose injury or death is incident to even if by criminal acts, of registered service, however, are not payable. or insured mail while in the possession (c) Territorial limitation. There is no of DON authorities are payable under geographical limitation on the applica- the MCA. This provision is an exception of the MCA, but if a claim arising tion to the general requirement that in a foreign country is cognizable compensable damage, loss, or destruc- under the Foreign Claims Act (10 tion of personal property be caused by U.S.C. 2734), the claim shall be proc- DON personnel while acting within the essed under that statute. See 10 U.S.C. scope of their employment or otherwise 2733(b)(2). (d) Suit. The MCA authorizes the ad- incident to noncombat activities of the ministrative settlement and payment DON. The maximum award to a claim- of certain claims. The United States ant under this section is limited to has not consented to be sued. that to which the claimant would be entitled from the Postal Service under § 750.42 Statutory authority. the registry or insurance fee paid. The 10 U.S.C. 2733, as amended, commonly award shall not exceed the cost of the referred to as the Military Claims Act item to the claimant regardless of the (MCA). fees paid. Claimant may be reimbursed for the postage and registry or insur- § 750.43 Claims payable. ance fees. (a) General. Unless otherwise pre- (2) Property bailed to the DON. Claims scribed, a claim for personal injury, for damage to or loss of personal prop- death, or damage or loss of real or per- erty bailed to the DON, under an ex- sonal property is payable under this press or implied agreement are payable provision when: under the MCA, even though legally (1) Caused by an act or omission de- enforceable against the U.S. Govern- termined to be negligent, wrongful, or ment as contract claims, unless by ex- otherwise involving fault of DON per- press agreement the bailor has as- sonnel acting within the scope of their sumed the risk of damage, loss, or de- employment; or struction. Claims filed under this para- (2) Incident to noncombat activities graph may, if in the best interest of the of the DON. A claim may be settled U.S. Government, be referred to and under this provision if it arises from processed by the Office of the General authorized activities essentially mili- Counsel, DON, as contract claims. tary in nature, having little parallel in (3) Real property. Claims for damage civilian pursuits, and in which the U.S. to real property incident to the use and Government has historically assumed a occupancy by the DON, whether under broad liability, even if not shown to an express or implied lease or other- have been caused by any particular act wise, are payable under the MCA even or omission by DON personnel while though legally enforceable against the acting within the scope of their em- DON as contract claims. Claims filed ployment. Examples include practice under this paragraph may, if in the firing of missiles and weapons, sonic best interest of the U.S. Government,

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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 (i) Any claim by a national, or cor- within the scope of assigned duties or poration controlled by a national, of a employment are payable under the country in armed conflict with the MCA. See § 750.54. United States, or an ally of such country, unless the claimant is determined § 750.44 Claims not payable. to be friendly to the United States. (a) Any claim for damage, loss, de- (j) Any claim for personal injury or struction, injury, or death which was death of a member of the Armed Forces proximately caused, in whole or in or civilian employee incident to his part, by any negligence or wrongful act service. 10 U.S.C. 2733(b)(3). on the part of the claimant, or his (k) Any claim for damage to or loss agent or employee, unless the law of of bailed property when bailor specifi- the place where the act or omission cally assumes such risk. complained of occurred would permit (l) Any claim for taking private real recovery from a private individual property by a continuing trespass or by under like circumstances, and then technical trespass such as overflights only to the extent permitted by the of aircraft. law. (m) Any claim based solely on com- (b) Any claim resulting from action by the enemy or resulting directly or passionate grounds. indirectly from any act by armed § 750.45 Filing claim. forces engaged in combat. (c) Any claim for reimbursement of (a) Who may file. Under the MCA, spe- medical, hospital, or burial expenses to cifically, the following are proper the extent already paid by the U.S. claimants: Government. (1) U.S. citizens and inhabitants. (d) Any claim cognizable under: (2) U.S. military personnel and civil- (1) Military Personnel and Civilian ian employees, except not for personal Employees’ Claims Act, as amended. 31 injury or death incident to service. U.S.C. 3721. (3) Persons in foreign countries who (2) Foreign Claims Act. 10 U.S.C. 2734. are not inhabitants. (3) 10 U.S.C. 7622, relating to admi- (4) States and their political subdivi- ralty claims. See part 752 of this Chap- sions (including agencies). ter. (5) Prisoners of war for personal prop- (4) Federal Tort Claims Act. 28 U.S.C. erty, but not personal injury. 2671, 2672, and 2674–2680. (6) Subrogees, to the extent they paid (5) International Agreements Claims the claim. Act. 10 U.S.C. 2734a and 2734b. (b) Who may not file. (1) Inhabitants (6) Federal Employees’ Compensation of foreign nations for loss or injury oc- Act. 5 U.S.C. 8101–8150. curring in the country they inhabit. (7) Longshore and Harbor Workers’ (2) U.S. Government agencies and de- Compensation Act. 33 U.S.C. 901–950. partments.

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(c) When to file/statute of limitations. partial payment of $100,000.00 and refer Claims against the DON must be pre- the excess to the General Accounting sented in writing within 2 years after Office for payment from appropriations they accrue. In computing the 2 year provided therefore. period, the day the claim accrues is excluded and the day the claim is pre- § 750.46 Applicable law. sented is included. If the incident oc- (a) Claims arising within the United curs in time of war or armed conflict, States, Territories, Commonwealth, and however, or if war or armed conflict in- Possessions. The law of the place where tervenes within 2 years after its occur- the act or omission occurred will be ap- rence, an MCA claim, on good cause plied in determining liability and the shown, may be presented within 2 years effect of contributory or comparative after the war or armed conflict is ter- negligence on claimant’s right of re- minated. For the purposes of the MCA, covery. the date of termination of the war or (b) Claims within foreign countries. (1) armed conflict is the date established Where the claim is for personal injury, by concurrent resolution of Congress or death, or damage to or loss or destruc- by the President. See 10 U.S.C. tion of real or personal property caused 2733(b)(1). by an act or omission determined to be (d) Where to file. The claim shall be negligent, wrongful, or otherwise in- submitted by the claimant to the commanding officer of the naval activity volving fault of DON personnel acting involved, if it is known. Otherwise, it within the scope of their employment, shall be submitted to the commanding liability of the United States will be officer of any naval activity, preferably assessed under general principles of the one within which, or nearest to tort law common to the majority of which, the incident occurred, or to the American jurisdictions. Judge Advocate General of the Navy, (2) Apply the law of the foreign coun- 200 Stovall Street, Alexandria, VA try governing the legal effect of con- 22332–2400. tributory or comparative negligence by (e) Claim form. A claim is correct in the claimant to determine the relative form if it constitutes written notifica- merits of the claim. If there is no for- tion of an incident, signed by the eign law on contributory or compara- claimant or a duly authorized agent or tive negligence, apply traditional rules legal representative, with a claim for of contributory negligence. Apply for- money damages in a sum certain. A eign rules and regulations on operation Standard Form 95 is preferred. A claim of motor vehicles (rules of the road) to should be substantiated as discussed in the extent those rules are not specifi- section 750.27 of this part. A claim cally superseded or preempted by U.S. must be substantiated as required by Armed Forces traffic regulations. this Part in order to be paid. See 10 (c) Clarification of terms. The prin- U.S.C. 2733(b)(5). ciples of absolute liability and punitive (f) Amendment of claim. A proper damages do not apply to claims under claim may be amended by the claimant the MCA. Federal law determines the at any time prior to final denial or meaning and construction of the MCA. payment of the claim. An amendment shall be submitted in writing and § 750.47 Measure of damages for property claims. signed by the claimant or a duly authorized agent or legal representative. Determine the measure of damages in (g) Payment. Claims approved for pay- property claims arising in the United ment shall be forwarded to such dis- States or its territories, common- bursing officer as may be designated by wealth, or possessions under the law of the Comptroller of the Navy for pay- the place where the incident occurred. ment from appropriations designated Determine the measure of damages in for that purpose. If the Secretary of property claims arising overseas under the Navy considers that a claim in ex- general principles of American tort cess of $100,000.00 is meritorious and law, stated as follows: would otherwise be covered by 10 (a) If the property has been or can be U.S.C. 2733 and § 750.43, he may make a economically repaired, the measure of

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damages shall be the actual or esti- § 750.48 Measure of damages in injury mated net cost of the repairs necessary or death cases. to substantially restore the property to (a) Where an injury or death arises the condition that existed immediately within the United States or its terri- prior to the incident. Damages shall tories, commonwealth, or possessions, not exceed the value of the property determine the measure of damages immediately prior to the incident less under the law of the location where the the value thereof immediately after injury arises. the incident. To determine the actual (b) Where an injury or death arises in or estimated net cost of repairs, the a foreign country and is otherwise cog- value of any salvaged parts or mate- nizable and meritorious under this pro- rials and the amount of any net appre- vision, damages will be determined in ciation in value effected through the accordance with general principles of repair shall be deducted from the ac- American tort law. The following is tual or estimated gross cost of repairs. provided as guidance. The amount of any net depreciation in (1) Measure of Damages for Overseas the value of the property shall be added Personal Injury Claims. Allowable com- to such gross cost of repairs, if such ad- pensation includes reasonable medical justments are sufficiently substantial and hospital expenses necessarily in- in amount to warrant consideration. curred, compensation for lost earnings Estimates of the cost of repairs shall and services, diminution of earning ca- be based upon the lower or lowest of pacity, anticipated medical expenses, two or more competitive bids, or upon physical disfigurement, and pain and suffering. statements or estimates by one or more competent and disinterested per- (2) Wrongful Death Claims Arising in Foreign Countries. (i) Allowable com- sons, preferably reputable dealers or of- pensation includes that in paragraph ficials familiar with the type of prop- (b)(1) of this section, burial expenses, erty damaged, lost, or destroyed. loss of support and services, loss of (b) If the property cannot be eco- companionship, comfort, society, pro- nomically repaired, the measure of tection, and consortium, and loss of damages shall be the value of the prop- training, guidance, education, and nur- erty immediately prior to the incident turing, as applicable. less the value immediately after the (ii) The claim may be presented by or incident. Estimates of value shall be on behalf of the decedent’s spouse, par- made, if possible, by one or more com- ent, child, or dependent relative. petent and disinterested persons, pref- Claims may be consolidated for joint erably reputable dealers or officials fa- presentation by a representative of miliar with the type of property dam- some or all of the beneficiaries or may aged, lost, or destroyed. be filed by a proper beneficiary individ- (c) Loss of use of damaged property ually. which is economically repairable may, if claimed, be included as an additional § 750.49 Delegations of adjudicating element of damage to the extent of the authority. reasonable expense actually incurred (a) Settlement Authority. (1) The Sec- for appropriate substitute property, for retary of the Navy may settle claims in such period reasonably necessary for any amount. The Secretary may pay repairs, as long as idle property of the the first $100,000.00 and report the ex- claimant was not employed as a sub- cess to the Comptroller General for stitute. When substitute property is payment under 31 U.S.C. 1304. See 10 not obtainable, other competent evi- U.S.C. 2733(d). dence such as rental value, if not spec- (2) The Judge Advocate General has ulative or remote, may be considered. delegated authority to settle claims for $100,000.00 or less. When substitute property is reasonably available but not obtained and used by (3) The Deputy Judge Advocate Gen- eral, the Assistant Judge Advocate the claimant, loss of use is normally General (General Law), and the Deputy not payable. Assistant Judge Advocate General

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(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 (c) Officials with Authority to make Ad- the U.S. Naval Station, Panama Canal vance Payments. (1) The Secretary of have delegated authority to settle the Navy has authority to make ad- claims for $10,000.00 or less. vance payments up to $100,000.00 (6) Overseas commands with a Judge (2) The Judge Advocate General has Advocate General’s Corps officer or a delegated authority to make advance judge advocate of the Marine Corps at- payments up to $100,000.00. tached, have delegated authority to (3) The Deputy Assistant Judge Ad- settle claims for $5,000.00 or less. vocate General (Claims and Tort Liti- (b) Denial Authority. (1) The Sec- gation) has delegated authority to retary of the Navy may deny a claim in make advance payments up to any amount. $25,000.00. (2) The Judge Advocate General, the (4) Naval Legal Service Office com- Deputy Judge Advocate General, the manding officers and the Officer in Assistant Judge Advocate General Charge, U.S. Sending State Office for (General Law), and the Deputy Assist- Italy have delegated authority to make ant Judge Advocate General (Claims advance payments up to $5,000.00. and Tort Litigation) have delegated au- (5) Officers in Charge of Naval Legal thority to deny claims in any amount. Service Office Detachments, when spe- (3) All other adjudicating authorities cifically designated by cognizant Com- have delegated authority to deny manding Officers of Naval Legal Serv- claims only to the amount of their set- ice Offices; and the Staff Judge Advo- tlement authority. cate at the U.S. Naval Station, Pan- (c) Appellate Authority. Adjudicating ama Canal have delegated authority to authorities have the same authority as make advance payments up to $3,000.00. delegated in paragraph b above to act (6) Overseas commands with a Judge upon appeals. No appellate authority Advocate General’s Corps officer or a below the Secretary of the Navy may judge advocate of the Marine Corps at- deny an appeal of a claim it had pre- tached, have delegated authority to viously denied. make advance payments up to $3,000.00. (d) Conditions for Advance Payments. § 750.50 Advance payments. Prior to making an advance payment (a) Scope. This paragraph applies ex- under 10 U.S.C. 2736, the adjudicating clusively to the payment of amounts authority shall ascertain that: not to exceed $100,000.00 under 10 U.S.C. (1) The injury, death, damage, or loss 2736 in advance of submission of a would be payable under the MCA (10 claim. U.S.C. 2733); (b) Statutory authority. Title 10 U.S.C. (2) The payee, insofar as can be deter- 2736 authorizes the Secretary of the mined, would be a proper claimant, or Navy or designee to pay an amount not is the spouse or next of kin of a proper in excess of $100,000.00 in advance of the claimant who is incapacitated; submission of a claim to or for any per- (3) The provable damages are esti- son, or the legal representative of any mated to exceed the amount to be paid; person, who was injured or killed, or (4) There exists an immediate need of whose property was damaged or lost, as the person who suffered the injury, the result of an accident for which al- damage, or loss, or of his family, or of lowance of a claim is authorized by the family of a person who was killed,

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for food, clothing, shelter, medical, or § 750.52 Appeal. burial expenses, or other necessities, (a) A claim which is disapproved in and other resources for such expenses whole or in part may be appealed by are not reasonably available; the claimant at any time within 30 (5) The prospective payee has signed days after receipt of notification of dis- a statement that it is understood that approval. An appeal shall be in writing payment is not an admission by the and state the grounds relied upon. An Navy or the United States of liability appeal is not an adversary proceeding for the accident concerned, and that and a hearing is not authorized; how- the amount paid is not a gratuity but ever, the claimant may obtain and sub- shall constitute an advance against mit any additional evidence or written and shall be deducted from any amount argument for consideration by the ap- that may be allowed under any other pellate authority. provision of law to the person or his (b) Upon receipt, the adjudicating au- legal representative for injury, death, thority examines the appeal, deter- damage, or loss attributable to the ac- mines whether the appeal complies cident concerned; and with this regulation, and reviews the (6) No payment under 10 U.S.C. 2736 claims investigative file to ensure it is may be made if the accident occurred complete. The claim, with the com- in a foreign country in which the plete investigative file and a memo- NATO Status of Forces Agreement (4 randum of law, will be forwarded to the U.S.T. 1792, TIAS 2846) or other similar appellate authority for action. If the agreement is in effect and the injury, evidence in the file, including informa- death, damage, or loss tion submitted by the claimant with (i) Was caused by a member or em- the appeal, indicates the appeal should ployee of the DON acting within the be approved, the adjudicating author- scope of employment or ity may treat the appeal as a request (ii) Occurred ‘‘incident to noncombat for reconsideration. activities’’ of the DON as defined in (c) Processing of the appeal may be § 750.43. delayed pending further efforts by the adjudicating authority to settle the § 750.51 Final disposition. claim. Where the adjudicating author- (a) Claimant to be notified. The adjudi- ity does not reach a final agreement on cating authority shall notify the an appealed claim, it shall send the en- claimant, in writing, of the action tire claim file to the next higher set- taken on the claim. tlement authority, who is the appellate (b) Final denial. A final denial, in authority for that claim. whole or in part, of any MCA claim (d) The appellate authority shall no- shall be in writing and sent to the tify the claimant in writing of the de- claimant, or his attorney or legal rep- termination on appeal; that such deter- resentative, by certified or registered mination constitutes the final adminis- mail, return receipt requested. The no- trative action on the claim; and there tification of denial shall include a is no right to sue under the MCA. statement of the reason or reasons for denial and that the claimant may ap- § 750.53 Cross-servicing. peal. The notification shall also inform (a) See § 750.13 or information about the claimant: single-service claims responsibility (1) The title of the appellate author- under DODDIR 5515.8 of 9 June 1990. ity who will act on the appeal and that (b) Claims Settlement Procedures. the appeal will be addressed to the ad- Where a single service has been as- judicating authority who last acted on signed a country or area claims respon- the claim. sibility, that service will settle claims (2) No form is prescribed for the ap- cognizable under the MCA under the peal, but the grounds for appeal should regulations of that service. The for- be set forth fully. warding command shall afford any as- (3) The appeal must be submitted sistance necessary to the appropriate within 30 days of receipt by the claim- service in the investigation and adju- ant of notice of action on the claim. dication of such claims.

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§ 750.54 Payment of costs, settlements, sonnel (hereinafter DON personnel) and judgments related to certain acting outside the scope of their em- medical or legal malpractice claims. ployment. (a) General. Requests for reimbursement/indemnification of costs, settle- § 750.62 Statutory authority. ments, and judgments cognizable under Section 2737 of title 10, United States 10 U.S.C. 1089(f) [for personal injury or Code, provides authority for the admin- death caused by any physician, dentist, istrative settlement in an amount not nurse, pharmacist, paramedic, or other to exceed $1,000.00 of any claim against supporting personnel (including med- the United States not cognizable under ical and dental technicians, nurse as- any other provision of law for damage, sistants, and therapists)] or 10 U.S.C. loss, or destruction of property or for 1054(f) (for damages for injury or loss of personal injury or death caused by property caused by any attorney, para- military personnel or a civilian official legal, or other member of a legal staff) or employee of a military department while acting as DON personnel will be incident to the use of a vehicle of the paid if: United States at any place, or any (1) The alleged negligent or wrongful other property of the United States on actions or omissions arose in connec- a Government installation. There is no tion with either providing health care right to sue. There are no territorial functions or legal services and within limitations and the Act has worldwide the scope of employment; and application. (2) Such personnel furnish prompt notification and delivery of all process § 750.63 Definitions. served or received, and other docu- (a) Civilian official or employee. Any ments, information, and assistance as civilian employee of the DON paid from requested; and cooperate in defending appropriated funds at the time of the the action on the merits. incident. (b) Requests for Indemnification. All (b) Vehicle. Includes every description requests for indemnification for per- of carriage or other artificial contriv- sonal liability of DON personnel for ance used, or capable of being used, as acts or omissions arising out of as- a means of transportation on land. See signed duties shall be forwarded to the 1 U.S.C. 4. Judge Advocate General for action. (c) Government installation. Any Fed- eral facility having fixed boundaries § 750.55 Attorney’s fees. and owned or controlled by the U.S. Attorney’s fees not in excess of 20 Government. It includes both military percent of any settlement may be al- bases and nonmilitary installations. lowed. Attorney’s fees so determined are to be paid out of the amount § 750.64 Claim procedures. awarded and not in addition to the (a) The general provisions of subpart award. These fee limitations shall be A of this part shall apply in deter- incorporated in any settlement agree- mining what is a proper claim, who is ment secured from a claimant. a proper claimant, and how a claim is to be investigated and processed under §§ 750.56–750.60 [Reserved] 10 U.S.C. 2737 and this section. (b) A claim is presented when the Subpart D—Claims Not Cog- DON receives from a claimant or the nizable Under Any Other Pro- claimant’s duly authorized agent, writ- vision of Law ten notification of a nonscope claim incident accompanied by a demand for § 750.61 Scope of subpart D. money damages in a sum certain. This section provides information on (c) A claimant may amend a claim at payment of claims against the United any time prior to final action. Amend- States, not payable under any other ments will be submitted in writing and statute, caused by the act or omission, signed by the claimant or the claim- negligent, wrongful, or otherwise in- ant’s duly authorized agent. volving fault, of Department of the (d) Claims submitted under the provi- Navy (DON) military and civilian per- sions of the Federal Tort Claims Act

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(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- Judge Advocate General; Deputy ment would otherwise be barred be- Judge Advocate General; Assistant cause the DON personnel were not in Judge Advocate General (General Law); the scope of their employment at the Deputy Assistant Judge Advocate Gen- time of the incident. If a tender of pay- eral (Claims and Tort Litigation Divi- ment under this section is not accepted sion); Head, Federal Tort Claims by the claimant in full satisfaction of Branch (Claims and Tort Litigation Di- the claim, no award will be made, and vision); Head, Military Claims Branch the claim will be denied pursuant to (Claims and Tort Litigation Division), the rules applicable to the statute and commanding officers of Naval under which it was submitted. Legal Service Offices may settle a (e) Damages caused by latent defects nonscope claim. of ordinary, commercial type, Govern- ment equipment that were not payable § 750.67 Scope of liability. under the MCA, Foreign Claims Act, or (a) Subject to the exceptions in FTCA are payable under this section. § 750.68 of specific claims not payable, (f) Nonscope claims for damages the United States shall not pay more caused by local national DON employ- than $1,000.00 for a claim against the ees overseas are also payable under United States, not cognizable under this section if the injury was caused by any other provision of law, except Arti- the use of Government equipment. cle 139, UCMJ. (g) Payment may not be made on a (b) Article 139, UCMJ, 10 U.S.C. 939, is nonscope claim unless the claimant ac- not preemptive. The prohibition in 10 cepts the amount offered in full satis- U.S.C. 2737 on paying claims ‘‘not cog- faction of the claim and signs a settle- nizable under any other provisions of ment agreement. law’’ applies only to law authorizing (h) Payment for nonscope claims ad- claims against the United States. Arti- judicated by field commands will be af- cle 139 authorizes claims against fected through their local disbursing servicemembers. See part 755 of this office by use of funds obtained from the chapter. Judge Advocate General. (i) Claims submitted solely under 10 § 750.68 Claims not payable. U.S.C. 2737 shall be promptly consid- (a) A claim for damage, loss, or de- ered. If a nonscope claim is denied, the struction of property or the personal claimant shall be informed of reasons injury or death caused wholly or partly in writing and advised he may appeal by a negligent or wrongful act of the in writing to the Secretary of the Navy claimant or his agent or employee. (Judge Advocate General) provided the (b) A claim, or any part thereof, that appeal is received within 30 days of the is legally recoverable by the claimant notice of denial. The provisions of under an indemnifying law or indem- § 750.51(b) of subpart C also apply to de- nity contract. nials of nonscope claims. (c) A subrogated claim.

§ 750.65 Statute of limitations. § 750.69 Measure of damages. (a) A claim must be presented in Generally, the measure-of-damage writing within 2 years after it accrues. provisions under the MCA are used to It accrues at the time the claimant dis- determine the extent of recovery for covers, or in the exercise of reasonable nonscope claims. Compensation is com- care should have discovered, the exist- puted in accordance with §§ 750.47 and ence of the act or omission for which 750.48 of subpart C, except damages for the claim is filed. personal injury or death under this sec- (b) In computing time to determine tion shall not be for more than the cost whether the period of limitation has of reasonable medical, hospital, and expired, exclude the incident date and burial expenses actually incurred and include the date the claim was pre- not otherwise furnished or paid for by sented. the United States.

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PART 751—PERSONNEL CLAIMS against the United States submitted by REGULATIONS Department of the Navy (DON) personnel and civilian employees of the Subpart A—Claims Against the United naval establishment. States § 751.2 Claims against the United Sec. States: In general. 751.1 Scope of subpart A. (a) Maximum amount payable. The 751.2 Claims against the United States: In Military and Civilian Employees’ Per- general. 751.3 Authority. sonnel Claims Act (Personnel Claims 751.4 Construction. Act), 31 U.S.C. 3701, 3702, and 3721, pro- 751.5 Definitions. vides that the maximum amount pay- 751.6 Claims payable. able for any loss or damage arising 751.7 Claims not payable. from a single incident is limited to 751.8 Adjudicating authorities. $40,000.00. Claims for losses occurring 751.9 Presentment of claim. prior to 31 October 1988 are limited to 751.10 Form of claim. 751.11 Investigation of claim. $25,000.00. 751.12 Computation of award. (b) Additional instructions. The Judge 751.13 Payments and collections. Advocate General of the Navy may 751.14 Partial payments. issue additional instructions or guid- 751.15 Reconsideration and appeal. ance as necessary to give full force and 751.16–751.20 [Reserved] effect to this section. (c) Preemption. The provisions of this Subpart B—Demand On Carrier, section and the Personnel Claims Act Contractor, or Insurer are preemptive of other claims regula- 751.21 Scope of subpart B. tions. Claims not allowable under the 751.22 Carrier recovery: In general. Personnel Claims Act may, however, be 751.23 Responsibilities. allowable under another claims act. 751.24 Notice of loss or damage. (d) Other claims. Claims arising from 751.25 Types of shipments and liability in- the operation of a ship’s store, laundry, volved. 751.26 Demand on carrier, contractor, or in- dry cleaning facility, tailor shop, or surer. cobbler shop should be processed in ac- 751.27 Preparation and dispatch of demand cordance with NAVSUP P487. packets. 751.28 Assignment of claimants rights to § 751.3 Authority. the government. The Personnel Claims Act provides 751.29 Recoveries from carrier, contractor, the authority for maximum payment or insurer. 751.30 Settlement procedures and third up to $40,000.00 for loss, damage, or de- party responses. struction of personal property of mili- 751.31 Common reasons for denial by carrier tary personnel or civilian employees or contractor. incident to their service. The Act pro- 751.32 Forwarding claims files for offset ac- vides for the recovery from carriers, tion. warehouse firms, and other third par- 751.33 Unearned freight packet. ties responsible for such loss, damage, 751.34 GAO appeals. 751.35 Forms and instructions. or destruction. No claim may be paid unless it is presented in writing within AUTHORITY: 5 U.S.C 301; 10 U.S.C. 939, 5013, 2 years of the incident giving rise to and 5148; E.O. 11476, 3 CFR, 1969 Comp., p. 132; the claim. 32 CFR 700.206 and 700.1202. SOURCE: 57 FR 5055, Feb. 12, 1992, unless § 751.4 Construction. otherwise noted. The provisions of this section and the Personnel Claims Act provide limited Subpart A—Claims Against the compensation to service members and United States civilian employees of the DON for loss and damage to personal property in- § 751.1 Scope of subpart A. curred incident to service. This limited Subpart A of this part prescribes pro- compensation is not a substitute for cedures and substantive bases for ad- private insurance. Although not every ministrative settlement of claims loss may be compensated under the

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Personnel Claims Act, its provisions (c) Unusual occurrence. Serious events shall be broadly construed to provide and natural disasters not expected to reasonable compensation on meri- take place in the normal course of torious claims. Adjudications must be events. Two different types of incidents based on common sense and the rea- may be considered unusual occur- soned judgment of the claims examiner rences: those of an unusual nature and giving the benefit of realistic doubt to those of a common nature that occur the claimant. to an unexpected degree of severity. Examples of unusual occurrences in- § 751.5 Definitions. clude structural defects in quarters, (a) Proper claimants—(1) Members of faulty plumbing maintenance, termite the DON. All Navy and Marine Corps or rodent damage, unusually large size active duty members and reservists on hail, and hazardous health conditions active duty for training under Federal due to Government use of toxic chemi- law whether commissioned, enrolled, cals. Examples of occurrences that are appointed, or enlisted. A retired mem- not unusual include potholes or foreign ber may only claim under this Act if objects in the road, ice and snow slid- loss or damage occurred while the ing off a roof onto a vehicle, and tears, 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 comment 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 and Marine Corps nonappropriated- available, to protect delicate items fund activities for loss, damage, or de- such as computers or videocassette re- struction of personal property incident corders. to their employment will be processed (d) Personal property. Property includ- and adjudicated in accordance with ing but not limited to household goods, this enclosure and forwarded to the ap- unaccompanied baggage, privately propriate local nonappropriated-fund owned vehicles (POV’s), mobile homes, activity which employs the claimant and boats. for payment from nonappropriated- (e) Intangible property. Property that funds. has no intrinsic marketable value such (4) Separation from service. Separation as bankbooks, checks, promissory from the service or termination of em- notes, non-negotiable stock certifi- ployment shall not bar former military cates, bonds, baggage checks, insur- personnel or civilian employees from ance policies, money orders, and trav- filing claims or bar designated officers elers checks. from considering, ascertaining, adjust- (f) Vehicles. Includes automobiles, ing, determining, and authorizing pay- motorcycles, mopeds, utility trailers, ment of claims otherwise falling within camping trailers, trucks, mounted the provision of these regulations when camper bodies, motor homes, boats, such claim accrued prior to separation boat trailers, bicycles, and aircraft. or termination. Mobile homes and other property used (b) Improper claimants. Insurers, as- as dwelling places are not considered signees, subrogees, vendors, vehicles. lienholders, contractors, subcontractors and their employees, and other § 751.6 Claims payable. persons not specifically mentioned as Claims for loss, damage, or destruc- proper claimants. tion of property may be considered as

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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 addition, unless evidence shows that some- ized or directed for the convenience of thing outside the claimant’s control the Government, provided the travel caused the damage, breakage is pre- did not include commuting to or from sumed to be the result of improper the permanent place of duty, and did packing by the claimant. For example, not arise from mechanical or struc- if a claimant’s truck is rear-ended by a tural defect of the vehicle. There is no drunk driver during a DITY move, it is requirement that the loss be due to out of claimant’s control. If the claim- fire, flood, hurricane, or other unusual ant can substantiate that he was free occurrence, or to theft or vandalism. from negligence, he can file a claim for As a general rule, however, travel is damages to his household goods. not considered to be for the conven- (5) Shipment or storage at the claim- ience of the Government unless it was ant’s expense. The shipment or storage pursuant to written orders authorizing is considered Government-sponsored if use for which the claimant is entitled the Government later reimburses the to reimbursement. The claimant must claimant for it. The Government, how- be free from negligence in order to be ever, will not compensate a claimant paid for a collision loss. Travel by the for loss or damage that occurs while claimant to other buildings on the in- property is being shipped or stored at stallation is not considered to be under the claimant’s expense, even if the orders for the convenience of the Gov- Government reimburses the claimant ernment. Travel off the installation for the shipment or storage fees. The without written orders may only be reason for this is that there is no con- deemed to be for the convenience of the tract, called a Government Bill of Lad- Government if the claimant was ex- ing (GBL), between Government and pressly directed by his superior to use the carrier. In such cases the claimant POV to accomplish the mission. The must claim against the carrier. issuance of written orders after the (b) Losses at assigned quarters or other fact raises the presumption that travel authorized places. Damage or loss was not for the convenience of the Gov- caused by fire, explosion, theft, van- ernment. The maximum payment of dalism, lightning, flood, earthquake, $2,000.00 authorized by the Allowance and unusual occurrences. Losses due to List-Depreciation Guide still applies to theft may only be paid if the claimant loss of or damage to vehicles and con- took reasonable measures to safeguard tents. This maximum does not apply to the property and the theft occurred as DITY moves.

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(2) Incurred while a vehicle is shipped able if bolted or secured to the vehicle at Government expense, provided the with a wire locking device. loss or damage did not arise from me- (6) Rental vehicles. Damage to rental chanical or structural defect of the ve- vehicles is considered under paragraphs hicle during such shipment. Damage of the Joint Federal Travel Regula- caused during shipment at the claim- tions (JFTR), rather than as a loss in- ant’s expense or while the vehicle is cident to service. being moved to or from the port by an (d) Mobile homes and contents in ship- agent of the claimant is not compen- ment. Claims for damage to mobile sable. homes and contents in shipment are (3) Incurred while a vehicle is located payable unless the damage was caused at quarters or other authorized place of by structural or mechanical defects lodging, including garages, carports, (see § 751.12(g) below on mobile homes). driveways, assigned parking spaces, if (e) Borrowed property (including vehi- the loss or damage is caused by fire, cles). Loss or damage to borrowed prop- flood, hurricane, theft, or vandalism, erty is compensable if it was borrowed or other unusual occurrence. Van- for claimant’s or dependent’s own use. dalism is damage intentionally caused. A statement will be provided by the Stray marks caused by children play- owner of the property attesting to the ing, falling branches, gravel thrown by use of the property by the claimant. other vehicles, or similar occurrences (f) Clothing and articles being worn. are not vandalism. The amount pay- Repairs/replacement of clothing and 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. or the Department of Defense (DOD). A (g) Personal property held as evidence vehicle properly on the installation or confiscated property. If property be- should be presumed to be used incident longing to the victim of a crime is to to the claimant’s service. A vehicle be held as evidence for an extended pe- that is not properly insured or reg- riod of time (in excess of 2 months) and istered in accordance with local regula- the temporary loss of the property will tions is not properly on the installa- work a grave hardship on the claimant, tion. A vehicle left in a remote area of a claim for the loss may be considered the installation that is not a des- for payment. This provision will not be ignated long-term parking area for an used unless every effort has been made undue length of time is presumed not to determine whether secondary evi- to be on the installation incident to dence, such as photographs, may be service. substituted for the item. No compensa- (5) Theft of property stored inside a ve- tion is allowed to a person suspected of hicle. Claimants are expected to lock an offense for property seized from that doors and windows. Neither the pas- same person in the investigation of senger compartment nor the trunk of a that offense. This also applies to prop- vehicle is a proper place for the long- erty a foreign government unjustly term storage of property unconnected confiscates or an unjust change in a with the use of the vehicle. The pas- foreign law that forces surrender or senger compartment of a vehicle does abandonment of property. not provide adequate security, except (h) Theft from possession of claimant. for very short periods of time for arti- Theft from the person of the claimant cles that are not of high value or easily is reimbursable if the theft occurred by pilferable. Car covers and bras are pay- use of force, violence, or threat to do

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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 authorities as soon as practicable, and it must § 751.7 Claims not payable. have been reasonable for the claimant (a) Losses in unassigned quarters in the to have had on his person the quality United States. Claims for property dam- and the quantity of the property alleg- aged or lost at quarters occupied by edly stolen. the claimant within the United States (i) Property used for the benefit of the that are not assigned or otherwise pro- Government. Compensation is author- vided by the Government. ized where property is damaged or lost (b) Currency or jewelry shipped or while being used in the performance of stored in baggage. Claims for lost Government business at the direction money, currency, or jewelry shipped or or request of superior authority or by stored in baggage are not payable. Coin reason of military necessity. or paper money included in collections (j) Money deposited for safekeeping, is payable only if listed on an inven- transmittal, or other authorized disposi- tory prepared at origin. tion. Compensation is authorized for (c) Enemy property or war trophies. personal funds delivered to and accept- This includes only property that was ed by military and civilian personnel originally enemy property or a war tro- authorized by the commanding officer phy that passed into the hands of a col- to receive these funds for safekeeping, lector and was then purchased by a deposit, transmittal, or other author- claimant. ized disposition, if the funds were nei- (d) Unserviceable or Worn-Out Prop- ther applied as directed by the owner erty. nor returned to the owner. (e) Loss or Damage to Property to (k) Fees—(1) For obtaining certain doc- the Extent of any Available Insurance uments. The fees for replacing birth cer- Coverage as Set Forth in § 751.26 of this tificates, marriage certificates, college part. diplomas, passports, or similar docu- (f) Inconvenience or loss of use. Ex- ments may be allowed if the original or penses arising from late delivery of a certified copy is lost or destroyed in- personal property, including but not cident to service. In general, com- limited to the expenses for food, lodg- pensation will only be allowed for re- ing, and furniture rental, loss of use, placing documents with a raised seal interest, carrying charges, attorney’s that are official in nature. No com- fees, telephone calls, additional costs pensation will be allowed for docu- of transporting claimant or family ments that are representative of value, members, time spent in preparation of such as stock certificates, or for per- claim, or cost of insurance are not sonal letters or records. compensable. While such claims do not (2) Estimate fees. An estimate fee is a lie against the Government, members fixed cost charged by a person in the should be referred to the Personal business of repairing property to pro- Property Office for assistance in filing vide an estimate of what it would cost their inconvenience claims against the to repair property. An estimate fee in commercial carriers (NAVSUP Publi- excess of $50.00 should be examined cation 490, Transportation of Personal with great care to determine whether Property). it is reasonable. A person becomes obli- (g) Items of speculative value. Theses, gated to pay an estimate fee when the manuscripts, unsold paintings, or a estimate is prepared. An estimate fee similar creative or artistic work done should not be confused with an ap- by the claimant, friend, or a relative is praisal fee, which is not compensable limited to the cost of materials only. (see § 751.7). A reasonable estimate fee The value of such items is speculative.

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Compensation for a utilitarian object (o) Intangible Property, such as made by the claimant, such as a quilt Bankbooks, Checks, Promissory Notes, or bookcase, is limited to the value of Stock Certificates, Bonds, Bills of Lad- an item of similar quality. ing, Warehouse Receipts, Baggage (h) Loss or damage to property due to Checks, Insurance Policies, Money Or- negligence of the claimant. Negligence is ders, and Traveler’s Checks are not a failure to exercise the degree of care Compensable. expected under the circumstances that (p) Property Owned by the United is the proximate cause of the loss. States, Except where the Claimant is Losses due, in whole or in part, to the Responsible to an Agency of the Gov- negligence of the claimant, the claim- ernment other than the DON. ant’s spouse, child, houseguest, em- (q) Contractual coverage. Losses, or ployee, or agent are not compensable. any portion thereof, that have been re- (i) Business property. Losses of items covered or are recoverable pursuant to acquired for resale or use in a private contract are not compensable. business are not compensable. If property is acquired for both business and § 751.8 Adjudicating authorities. personal use, compensation will not be (a) Claims by Navy personnel. (1) The allowed if business use is substantial, following are authorized to adjudicate or is the primary purpose for which the and authorize payment of personnel item was purchased, or if the item is claims up to $40,000.00: designed for professional use and is not (1) The Judge Advocate General; normally intended for personal use. (ii) Deputy Judge Advocate General; (j) Motor vehicles. Collision damage is (iii) Any Assistant Judge Advocate not payable unless it meets the criteria General; for payment as property used for the (iv) The Deputy Assistant Judge Ad- benefit of the Government as estab- vocate General (Claims and Tort Liti- lished in § 751.6(c)(1). gation); and (k) Violation of law or directives. Prop- (v) Commanding officers of Naval erty acquired, possessed, or trans- Legal Service Offices. ported unlawfully or in violation of (2) The Staff Judge Advocate at- competent regulations or directives. tached to Naval Supply Center, Oak- This includes vehicles, weapons, or land is authorized to adjudicate and property shipped to accommodate an- pay claims up to $25,000.00. other person, as well as property used (3) The Staff Judge Advocate at- to transport contraband. tached to Naval Station, Panama (l) Sales tax. Sales taxes associated Canal is authorized to adjudicate and with repair or replacement costs will pay claims up to $10,000.00. not be considered unless the claimant (4) The following are authorized to provides proof that the sales tax was adjudicate and authorize payment of actually paid. personnel claims up to $5,000.00: (m) Appraisal fees. An appraisal, as (i) Officers in charge of Naval Legal distinguished from an estimate of re- Service Office Detachments; placement or repair, is defined as a (ii) The Staff Judge Advocate at- valuation of an item provided by a per- tached to Naval Station, Keflavik; and son who is not in the business of selling (iii) Any personnel attached to a or repairing that type of property. Nor- Naval Legal Service Office when spe- mally, claimants are expected to ob- cifically designated by the com- tain appraisals on expensive items at manding officer of that Naval Legal their own expense. Service Office. (n) Quantities of property not reason- (5) Any individual, when personally able or useful under the circumstances are designated by the Judge Advocate Gen- not compensable. Factors to be consid- eral, may be authorized to adjudicate ered are claimant’s living conditions, and authorize payment of personnel family size, social obligations, and any claims up to any delegated amount, particular need to have more than av- not to exceed $40,000.00. erage quantities, as well as the actual (b) Claims by Marine Corps personnel. circumstances surrounding the acquisi- (1) The following individuals are au- tion and loss. thorized to adjudicate and authorize

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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 damage, 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. sonal property office serving the instal- (1) Obviously damaged or missing inven- lation where the claimant is stationed, tory items that are not reported at deliv- or nearest to the point where the loss ery. Claimants are expected to list or damage occurred. If submission in missing inventory items and obvious accordance with the foregoing is im- damage at time of delivery. Claimants practical under the circumstances, the who do not should be questioned. Obvi- claim may be submitted in writing to ously some claimants will simply not any installation or establishment of notice readily apparent damage. If, the Armed Forces which will forward however, the claimant cannot provide the claim to the appropriate Navy or an explanation or lacks credibility, Marine Corps claims office for proc- payment should be denied based on essing. To constitute a filing under this lack of evidence that the item was lost regulation, a claim must be presented or damaged in shipment. in writing to one of the military de- (2) Later-discovered shipment loss or partments. Claims that are incomplete damage. A claimant has 70 days to un- will not be refused and shall be logged pack, discover, and report loss and in as received. Claimants submitting damage that is not obvious at delivery. such claims, however, shall be in- In most cases, loss and damage that is formed in writing that properly com- discovered later and reported in a pleted forms or necessary substan- timely manner should be deemed to tiation must be received within a fixed have been incurred in shipment. period of time (normally 30 days), oth- (3) Damage to POV’s in shipment. Per- erwise the claim will be denied or paid sons shipping POV’s are expected to only in the amount substantiated. list damage on DD Form 788 (Private (b) Statute of limitations. A claim must Vehicle Shipping Document for Auto- be presented in writing to a military mobile) when they pick up the vehicle. installation within 2 years after it ac- Obvious external damage that is not crues. This requirement is statutory listed is not payable. Damage the and may only be waived if a claim ac- claimant could reasonably be expected

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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 § 751.12 Computation of award. best way to determine a proper award The Judge Advocate General will pe- is to examine the item closely to deter- riodically publish an Allowance List- mine that nature of the damage. For Depreciation Guide specifying rates of furniture, undersurfaces and the edges depreciation and maximum payments of drawers and doors should be exam- applicable to categories of property. ined to determine whether the material The Allowance List-Depreciation Guide is solid hardwood, fine quality veneer will be binding on all DON claims per- over hardwood, veneer over pressed sonnel. The value of the loss is deter- wood, or other types of material. If the mined and adjusted to reflect pay- inspection is conducted at the claim- ments, repairs, or replacement by car- ant’s quarters, the general quality of riers or insurers, or lost potential in- property should be determined. Claim- surance or carrier recoveries. ants should routinely be directed to (a) Repair of items. For items that can bring in vehicles and small broken be economically repaired, the cost of items of value such as figurines for in- repair or an appropriate loss in value is spection, and inspections should be the measure of the loss. The cost of re- conducted on all large claims. Observa- tions by repairmen and transportation pair may be the actual cost, as dem- inspectors are very valuable, but on oc- onstrated by a paid bill, or reasonable casion, claims personnel must go out of estimated costs, as demonstrated by an the office and inspect items them- estimate of repair prepared by a person selves. Such inspections are necessary in the business of repairing that type to reduce the number of reconsider- of property. ations and fraudulent claims and are (1) Loss of value (LOV)—(i) Minor dam- invaluable in enabling claims per- age not worth repairing. An LOV, rather sonnel to understand the facts in many than replacement cost, should be situations. awarded when an item suffers minor

§ 751.10 Form of claim. 1 Copies of these forms may be obtained by The claim should be submitted on DD contacting the claims office or personal Form 1842 (Claim for Personal Prop- property office serving the installation where the claimant is stationed, or nearest erty) accompanied by DD Form 1844 to the point where the loss or damage oc- (List of Property). If DD Forms 1842 curred.

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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, (i) Estimates that do not include repair repair of the scratch would exceed the of PED. If the estimate does not in- value of the table. Under the cir- clude repair of PED, even if PED is cumstances, LOV is appropriate. listed on the inventory, no deduction (ii) Damage to upholstered furniture. If should be made. This fact should be re- damage can be repaired imperceptibly 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, item, and the nature of the damage, is also often due to a mechanical de- and claims personnel should exercise fect, particularly when their is no ex- sound judgment to avoid being too le- ternal damage to the item. Claims for nient or too harsh. internal damage to small appliances (iii) Cosmetic damage to nondecorative that are not normally repaired, such as items. LOV should also be awarded to toasters or hair dryers, should be as- compensate claimants for cosmetic sessed based on damage to other items damage to items that were not pur- in the carton and the shipment, the age chased for purposes of display or deco- of the item, the honesty of the claim- ration. For example, the casing of a ant, and whether there are loose parts washing machine is dented. The wash- inside. If the evidence suggests rough ing machine is not decorative in nature and still functions perfectly. An LOV, handling caused the damage, a claim rather than replacement of the wash- for the item should be paid. Internal ing machine or the casing, is the appro- damage to larger items such as tele- priate measure of the claimant’s loss. visions or stereos should be evaluated (2) PED to repairable items. PED is by a repairman. Evidence that suggests damage to an item that predates the rough handling, such as smashed incident giving rise to a claim. PED is boards, provides a basis for payment. most commonly identified by the use Evidence that suggests a fault in the of symbols on household goods ship- item, such as burned-out circuits, does ment inventories. Whenever PED is not. Deterioration because an item in listed on an inventory, claims per- storage was not used for a long time, sonnel must determine whether the rather than because the item was mis- PED did in fact exist and whether the handled or the conditions of storage cost of repairing the item includes re- were improper, is also considered due pairing PED. The fact that a claimant to a mechanical defect.

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(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 (1) If there is a reg- Similar used items. block of DD Form 1844 (List of Prop- ular market for used items of that par- erty), or in a separate memorandum. A ticular type, the loss may be measured fair and reasonable award may be con- by the cost of a similar item of similar sidered in the following instances: age. Prices obtained from industry guides or estimates from dealers in this (i) The item is obsolete and a simple type of property are acceptable to es- deduction of a percentage for obsoles- tablish value. There is a regular mar- cence is not appropriate. ket on used cars and the value of a (ii) The claimant cannot replace the used automobile is always measured item in the local area. according to the N.A.D.A. Official Car (iii) The claimant cannot replace the Guide rather than the depreciated re- item at any cost. placement cost. Similarly, the Mobile (iv) Repair costs or replacement costs Home Manufactured Housing Replace- are excessive for the item and an LOV ment Guide may be used to value a deis not appropriate. stroyed mobile home. Where there is no (v) The claimant has substantiated a regular market in a particular type of loss in some amount but has failed to used item, however, estimates from substantiate a loss in the amount dealers in ‘‘collector’s items’’ should be claimed. avoided. (c) Depreciation. The Personnel (2) Depreciated replacement cost. This Claims Act is only intended to com- is the normal measure of a claimant’s pensate claimants for the fair market loss. A catalog or store price for a new value of their loss. Except in unusual item similar in size and quality is de- cases, a used item that has been lost or preciated using the Allowance List-De- destroyed is worth less than a new preciation Guide to reflect wear and item of the same type. The price of a

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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 storage and normally no depreciation service. Socks and underwear are not is taken on repair costs or on replace- considered military uniform items. ment cost for items less than 6 months (d) Salvage value. Whenever a claim- old, excluding the month of purchase ant has been fully compensated for a and the month the claim accrued (but destroyed item that still has some see § 751.12(c)(3)). value, the claimant has the option of (1) Depreciating replacement parts. No either retaining the item and having depreciation should be taken on re- the claims office deduct an amount for placement parts for damaged items un- the salvage value, or turning the item less these are parts separately pur- over to the Government or to the car- chased or normally replaced during the rier if the carrier will fully reimburse useful life of these items. The replace- the Government. ment cost for these latter items should (1) Turn-in to the Government. On all be depreciated. For example, the glass claims, except CONUS domestic ship- top to a table is not normally replaced ments, if the claimant does not choose during the useful life of the table and to retain the items and accepts a re- should not be depreciated. duction in the amount paid on the (2) Depreciating fabric for reupholstery. claim for salvage value, the claims of- Fabric is normally replaced during the fice will require the claimant to turn useful life of upholstered furniture. them into a disposal unit designated by When upholstered furniture is reuphol- the Personal Property Office. Nor- stered because the damage is too severe mally, the amount that the Govern- to be repaired and an LOV is not appro- ment may obtain from selling such priate, the cost of new fabric is depre- items is very low. If the claims office ciated at a rate of 5 percent per year. If determines that the salvage value is the item has been reupholstered since less than $25.00, the claimant may be it was purchased, depreciation is measured from the date the item was last advised to dispose of the items by other reupholstered, rather than from the means, either by throwing the item date the item was originally purchased. away or by turning it over to a chari- Labor costs are allowed as claimed. If table organization. Claimants may also the estimate does not list separate be directed to make alternative dis- costs for fabric and labor, the labor position of items that have been re- costs may be assumed to be 50 percent fused by the designated disposal unit. of the total bill. This alternate disposition must be (3) Rapidly depreciating items. Tires, noted on the chronology sheet that is most clothing items, and most toys kept as part of the claims file. Claims rapidly lose their value, as the high de- personnel will not divert such items to preciation rate for these items reflects. personal use or use them to furnish Depreciation should be taken on such Government offices. In determining items even when they are less than 6 whether an item has salvage value, the months old. As a rule of thumb, half of size of the item and the distance the the normal yearly or flat rate deprecia- claimant must travel to turn it in tion should be taken on such items should be considered. A claimant must

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make his own arrangements to trans- (1) AC: Amount claimed. The amount port salvageable items prior to pay- claimed was awarded to the claimant. ment. Claims personnel should ask the This abbreviation is not used if the claimant’s command to make transpor- claimant has presented an estimate of tation available to assist the claimant repair. 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 procedures. ant chooses. Claimants must retain (3) CR: Carrier recovery. The claimant other items for a maximum of 120 days was paid this amount by the carrier for from the date of delivery to allow the the item. The payment is recorded in carrier to pick them up. Pursuant to the remarks column, and the total car- this memorandum of understanding, rier payment is deducted at the bottom the carrier has until the end of the in- of DD Form 1844 in the same manner as spection period or 30 days after receipt insurance recovery. of the demand, whichever is greater, to (4) D: Depreciation. Yearly deprecia- identify such items. Claims offices tion was taken on the destroyed or must identify files in which the carrier missing item in accordance with the is entitled to salvage and must process appropriate depreciation guide in effect these claims for recovery action within at the time of the loss. Deviations from 30 days so that the claimant does not standard rates must be explained. dispose of salvageable items before the (5) DV: Depreciated value. A claim- end of the period allotted for carrier ant’s repair costs exceeded the value of pick-up. the item, so the depreciated value was (3) Maximum allowances. If the claim- awarded instead. Whenever a claimant ant will not be fully compensated for claims a repair cost that is very high, an item because a maximum allowance relative to the age and probable re- is applied, he will not be required to placement cost, the replacement cost turn in the item. should be obtained and the depreciated (e) Standard abbreviations. The claims value determined. examiner’s intent should be clear and (6) ER: Estimate of repair. The claim- unmistakable to anyone reviewing the ant provided an estimate of repair that remarks section of DD Form 1844. The was used to value the loss. If multiple following standardized abbreviations estimates were provided, they should are used in completing the remarks be numbered and referred to as exhib- section. Other abbreviations should not its. be used. Whenever one or more of these (7) EX: Exhibit. When numerous docu- abbreviations will not adequately ex- ments have been provided to substan- plain how the claimant has been com- tiate a claim, they should be numbered pensated, a brief explanation should be and referred to as exhibits. inserted in the remarks section, in the (8) FR: Flat rate depreciation. Flat comments section on the bottom of DD rate depreciation was taken on an item Form 1844, or on the chronology sheet in accordance with the Depreciation that is kept in each claims file. Guide in effect at the time of the loss.

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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- (10) LOV: Loss of value. An LOV was placement cost of the missing or de- awarded (see § 751.5(a)(1)). stroyed components. In some in- (11) MA: Maximum allowance. The ad- stances, however, a claimant would be judicated value, listed in the ‘‘Amount entitled to replacement of the entire Allowed’’ column, exceeds a maximum set or to an additional LOV. Some allowance. The amount in excess of the claimants will assert that all of the maximum allowance is subtracted at items in a room are part of a set. the bottom of the DD Form 1844. Pieces sold separately, however, are or- (12) N/P: Not payable. The item is not dinarily not considered parts of a set, payable. The reason for this comment and pieces that merely complement should be noted (i.e., ‘‘not substan- other items, such as a loveseat pur- tiated’’). chased to complement a particular (13) OBS: Obsolescence. A percentage hutch, are never considered part of a was deducted for obsolescence. set. When a component part of a set is 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 (17) NEX: Navy Exchange replacement than 25 percent of the place settings cost. A replacement from the NEX was are unusable. Exceptions may be made used. if the claimant can demonstrate a par- (18) RC: Replacement cost. A replace- ticular need for a certain number of ment cost was used. The store or cata- place settings because of family size or log from which the replacement cost social obligations. In those rare in- was taken should be listed. stances when an entire set is replaced, (19) SV/N: Item has no salvage value. A the claimant will be required to turn in destroyed item was determined to have undamaged pieces. no salvage value. (2) The set is still useful for its intended (20) SV/R: Salvage value, item retained. purpose. When missing pieces cannot be A destroyed item was determined to matched and there is measurable de- have salvage value and the claimant crease in the value of the set, but the chose to keep the item. Accordingly, a set is still useful for its intended pur- deduction was made for the salvage pose, the claimant is awarded the value value. of the missing pieces plus an amount (21) SV/T: Salvage value, item turned in. for the diminution in value of the set A destroyed item was determined to as a whole. The amount awarded as an have salvage value and the claimant LOV will vary depending on the exact chose not to keep the item. If the item circumstances. is part of a CONUS domestic shipment, (3) Mattresses and upholstered furniture the claimant must keep it for the car- are recovered. A mattress and box rier to pick up. Otherwise, the claim- spring set is covered during normal

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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 (iii) They are responsible for reseal- damage that cannot be repaired or re- ing the roof and weatherproofing the covered in matching fabric, recovering mobile home after delivery. The cost of the entire set or recovering the dam- this is not compensable, nor is any aged piece plus LOV should be consid- damage caused by the servicemember’s ered. Factors to take into account in- failure to have it done. clude the value of the set, PED to the (iv) They are responsible for remov- set, the nature of the current damage, ing obstructions, grading the roadway, and the extent to which the claimant’s or otherwise preparing the site to furniture is already mismatched. make it accessible for the carrier’s (g) Mobile homes. Mobile homes equipment at both origin and destina- present special problems. Most mobile tion. homes, particularly larger ones, are (v) Because of the risk that damage not built to withstand the stress of will result for which they cannot be multiple long moves. While the Mobile compensated, servicemembers should Home One-Time Only rate solicitation strongly consider purchasing private program, effective 1 November 1987, insurance coverage. A claimant usually may have reduced the incidence of loss must purchase separate insurance for and damage by encouraging carriers to property shipped inside the mobile use extra axles when necessary, mobile home and most mobile home carriers home shipments can result in enor- will sell some sort of insurance cov- mous, uncompensated losses for erage for damage to the mobile home servicemembers and present unusual itself. Often, when a mobile home has difficulties for claims adjudicators. Be- been moved repeatedly, the risk of un- cause the risk is so great, claims of- compensated loss is so high that the fices must coordinate with their serv- servicemember should consider selling icing transportation offices to ensure the home rather than attempting to both that servicemembers shipping mo- ship it. bile homes are advised of the risk and (2) Inspection Prior to Shipment. Trans- of their responsibilities, and that the portation personnel should inspect the transportation office does not author- home prior to shipment in all in- ize shipment of a mobile home that has stances. All defects should be recorded. not been placed in a fit condition to be In particular: shipped. (i) A mobile home should not be (1) Transportation counseling prior to shipped with a servicemember’s fur- shipment. Servicemembers should be niture and other household goods in- advised of the following: side. The maximum safe weight of ap- (i) They are responsible for placing pliances and additional property is the mobile home and its tires, tubes, very low. An overweight mobile home frames, and other parts in fit condition tends to blow tires and break apart to ship and for loading the mobile during shipment. Servicemembers home to withstand the stresses of nor- should be advised long before shipment mal transportation. They will not be that they will have to make other ar- compensated for any damage that re- rangements for shipping such items at sults either from a latent defect in the their own expense. construction of the mobile home (ex- (ii) A mobile home should never be cept when the carrier is aware of the shipped with defects in the steel frame defect and the servicemember is not) or or tow hitch. from their failure to place the mobile (iii) The condition of all tires should home in fit condition to ship. be checked and recorded. Some carriers (ii) They are responsible for paying submit huge bills for ‘‘blown’’ tires for necessary repairs en route. Such re- during shipment. pairs can amount to several hundred or (iv) Structural changes to the inte- even several thousand dollars, and rior of the home, particularly those

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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 (4) Substantiation of a claim. Prior to this in coordination with the adjudication of such claims, the mobile servicemember. home should be inspected and the fol- (v) DD Form 1841. If a Government lowing evidence obtained, if possible: representative does not inspect the mo- (i) DD Form 1800 (Mobile Home Ship- bile home at delivery, an inspection ment Inspection at Destination). This should be requested. document shows the condition of the (vi) Driver’s statement. The mobile home at origin prior to shipment. This home carrier should be requested to document is prepared by the Transpor- provide (within 14 days) a statement tation Office (TO) and is signed by the from the driver of the towing vehicle servicemember, the carrier’s represent- explaining the circumstances sur- ative, and the Government inspector. rounding the damage as well as de- It is vital and a claim should not be tailed travel particulars. If the mobile paid without it. At destination, dam- home carrier does not respond, the file ages noted at delivery should be anno- should be so annotated. Such state- tated and the form dated and signed by ments are often self-serving and should the driver and the servicemember. be reviewed critically to determine Damages may be listed on this form or whether the carrier is attributing damon the DD Form 1840 (Joint Statement age to a latent defect. of Loss or Damage at Delivery). (vii) Owner’s statement. The claimant (ii) DD Form 1863 (Accessorial Services- should provide a statement concerning Mobile Home). For shipments after 1 No- the age of the mobile home, the date vember 1987, DD Form 1863 lists all and place purchased, any prior damage services the carrier is required to pro- or repairs, all prior moves, and prior vide, including line-haul, payment of claims.

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(viii) Estimates of repair. When pos- (vii) The cost of separating or re- sible, the claimant should obtain two assembling and resealing a double-wide estimates of repair from firms in the mobile home. business of repairing, rather than sell- (6) Carrier liability and attempted waiv- ing, mobile homes. Such estimates ers. In the absence of additional cov- should list the approximate value of erage, the carrier’s maximum liability the home before and after damage, a for personal property shipped with the detailed breakdown of the repairs need- mobile home is $250.00. The carrier is ed and their cost, and the cause of fully liable for damages to the mobile damage. home itself. Carriers are also liable for 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 opinions prepared by qualified engi- 046370, paragraph 2 or in superseding neers. The claimant may not be com- messages, if applicable. pensated for services the carrier failed to perform or performed improperly or § 751.14 Partial payments. for other incidental expenses. The (a) Partial payments when hardship ex- claimant should be referred to the ists. When claimants need funds to feed, transportation office for these. Such clothe, or house themselves and/or services (listed on DD Form 1843 and their families as a result of sustaining the GBL correction notice) include: a compensable loss, the adjudicating (i) Escort or pilot services, ferry fees, authority may authorize a partial pay- tolls, permits, overdimension charges, ment of an appropriate amount, nor- or taxes. mally one-half of the estimated total payment. When a partial payment is (ii) Storage costs or parking fees en made, a copy of the payment voucher route. and all other information related to (iii) Expand charges and charges for the partial payment shall be placed in anti-sway devices, brakes and brake re- the claim file. Action shall be taken to pairs, or adding or replacing axles, ensure the amount of the partial pay- tubes, or tires. ment is deducted from the adjudicated (iv) Wrecker service. value of the claim when final payment (v)Connecting or disconnecting utili- is made. ties. (b) Marine hardship payments. The (vi) Blocking, unblocking, or remov- Marine claimant’s Transportation ing or installing skirting. Management Office (TMO) shall ensure

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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 be approved. If full additional payment (a) Responsibility. Recovery of is not granted, the file shall be for- amounts due for personal property lost warded for reconsideration to the next or damaged while in transit or in stor- higher adjudicating authority. The age at Government expense is a joint next higher adjudicating authority Personal Property Office/Naval Legal may be the commanding officer of the Service Office responsibility. In order Naval Legal Service Office if a properly to establish liability and to effectively delegated subordinate has acted ini- pursue a recovery claim against a car- tially on the claim. For claims origi- rier, warehouseman, or other third nally adjudicated by the commanding party, it is essential that all required offer, the files will be forwarded to the action be accomplished in an expedi- Judge Advocate General for final ac- tious manner. Failure of the property tion. The claimant shall be notified of owner or any Government agent to ex- this action either by letter or by copy ercise diligence in the performance of of the letter forwarding the file to duties may render collection of the higher adjudicating authority. The for- claim impossible and thereby deprive warding letter shall include a synopsis the Government of rightful revenue. of action taken on the file and reasons Claims approving and settlement au- for the action or denial, as well as a thorities will ensure that all actions recommendation of further action or required of the property owner and denial. naval personnel are accomplished (b) Files forwarded to JAG. For files promptly. forwarded to JAG in accordance with (b) Elements of collection. There are § 751.15(a), the forwarding endorsement four elements in the successful asser- shall include the specific reasons why tion and collection of a recovery claim. the requested relief was not granted They are: and shall address the specific points or (1) Proving that a transit loss oc- complaints raised by the clamant’s re- curred; quest for reconsideration. (2) Determining who had responsi- (c) Appeals procedure for claims sub- bility for the goods at the time of the mitted by Marine Corps personnel. Where transit loss; any of the Marine Corps adjudication (3) Calculating the amount of dam- authorities listed in § 751.8(b) fail to ages; and

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(4) Pursuing the responsible party or ‘‘refinished’’ or ‘‘repaired’’ are not ac- parties vigorously. ceptable. (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 Property, from the transportation of- on the DD Form 1840 (Joint Statement fice. of Loss or Damage at Delivery). Later (7) When necessary, DD Form 619–1, discovered damage must be noted on Statement of Accessorial Services Per- the DD Form 1840R (Notice of Loss or formed, from the transportation office. Damage) and delivered to the claims (d) Carrier inspection. Claims office office or Personal Property Office with- personnel should inform claimants that in 70 days of delivery. Failure to take the carrier has the right to inspect exceptions at delivery and note and re- damaged goods within 75 days of deliv- port later discovered damage will re- ery, or 45 days of dispatch of DD Form sult in deduction on any lost potential 1840R, whichever is later, and that carrier recovery from payment of the damaged items must be held out for claim. Failure to note on the DD Form carrier inspection during that period. 1840 items missing at the time of deliv- Essential items such as washer, dryer, ery may result in denial of claims for television etc., may be repaired prior those items. to that time if necessary. (b) DD Form 1840/1840R. The DD Form (e) Repair estimates. Claims personnel 1840/1840R is printed in carbon sets of must ensure that repair estimates de- five with DD Form 1840 on the front scribe the specific location and damage side and DD Form 1840R on the reverse claimed and that the same damage is side. DD Form 1840/1840R is provided by claimed on DD Form 1844, Schedule of the carrier to the member at delivery. Property and Claims Analysis Chart. Carriers were required to use this re- Repair estimates that merely note vised DD Form 1840/1840R beginning 15

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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 carrier’s released valuation (the car- be added in the claims file. Option 1 rier’s maximum liability for loss and must be annotated on the original damage) increased from $.60 per pound GBL. A GBL correction notice is ac- per article to $1.25 multiplied by the ceptable only if the carrier or his agent net weight of the shipment ($2.50 for has notice of the correction before shipments to and from Alaska). For pick-up. Option 1 may be listed in Codes 1 and 2 shipments picked up block 27 or block 30 either as a lump prior to these dates, carrier liability sum, such as ‘‘Option 1—$30,000,’’ or as remains at $.60 per pound per article a multiple, such as ‘‘Option 1—$3.00 and is calculated the same as for Code times the net weight.’’ The carrier’s 4 shipments. There are also two higher maximum liability is whatever higher levels of coverage available in which valuation the claimant places on the the owner pays the difference between shipment. For example: The owner of a the basic coverage and the higher level 10,000 pound shipment requests Option requested: High or higher increased re- 1 coverage of $30,000.00 and has this leased valuation (Option 1) and full re- listed on the GBL. The carrier’s max- placement protection (Option 2). These imum liability is $30,000.00. Under basic higher carrier released valuation rates coverage, the carrier’s maximum li- only apply to Codes 1 and 2 shipments ability for this shipment would only be and they do not affect the liability of a $12,500.00. The claimant must initially non-temporary storage (NTS) ware- file a claim with the carrier. The Gov- house which remains at $50.00 per line ernment will only accept a claim if the item. carrier denies the claim, if delay would

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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 maximum allowances. The claimant in the carrier liability column. If this should be informed that any additional total exceeds the maximum carrier li- amount will be forwarded after recov- ability for the entire claim, the max- ery action is effected against the car- imum carrier liability should be en- rier. Option 2 must be annotated on the tered on DD Form 1843 as the amount original GBL. A GBL correction notice demanded. Do not, however, change the is acceptable only if the carrier or his total of the amounts for which the car- agent receives notice of the correction rier is liable on the DD Form 1844. before pick-up. Option 2 may be listed (iii) If the amount the claimant rein block 27 or block 30 either as a lump ceives from the Government is limited sum, such as ‘‘Full Replacement Pro- by application of a maximum allow- tection—$50,000.00,’’ or as a multiple, ance (or by depreciation on full re- such as ‘‘Full Replacement Protec- placement protection claims) leaving tion—$3.50 times the net weight.’’ The the claimant with an uncompensated carrier’s maximum liability is the loss, the claimant may be due reim- higher valuation the claimant places bursement from recovery money after on the shipment. For example: The recovery is effected on the claim. owner of a 10,000 pound shipment re- Claimants with uncompensated losses quests full replacement protection of who have basic coverage are only enti- $3.50 times the net weight of the ship- tled to reimbursement from recovery ment and has this listed on the GBL. money if the amount recovered exceeds The carrier’s maximum liability is the amount paid by the Government $35,000.00 (10,000 pounds times (unless the loss was in excess of the

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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 or damaged, liability will be computed (d) Codes 7, 8, and J (Unaccompanied on the net weight of the shipment Baggage Shipments). Gross Weight Rules. times $.60 per pound. The net weight of Government payment to the carrier for the shipment may be obtained from the transportation of unaccompanied bag- origin transportation office. gage (Codes 7, 8, and J) is based upon (c) Codes 5 and T (International and gross weight of the shipment. Unless Hawaii). (1) A Code 5 shipment is the the inventory is prepared as a ‘‘Proper movement of household goods in Mili- Household Goods Descriptive Inven- tary Traffic Management Command tory,’’ computation of carrier liability (MTMC) approved door-to-door ship- for loss or damage incurred in a Code 7, ping containers (wooden boxes) and 8, or J shipment will also be based upon where a carrier provides line-haul serv- gross weight. Gross weight is defined as ice from origin residence to a military the total weight of all articles, includ- ocean terminal. The Government, ing necessary packing materials and through the Military Sealift Command packing containers. The shipping con- (MSC), provides ocean transportation tainer is the external crate (tri-wall or to the designated port of discharge, and other Government approved container) the carrier provides line-haul service into which individual articles and/or to the destination residence. packing cartons are placed. For the (2) A Code T shipment is the move- majority of claims, liability will be as- ment of household goods where the car- serted on gross weight of the container. rier provides containerization at origin (2) Baggage shipments prepared using a and transportation to the designated ‘‘Proper Household Goods Descriptive In- Military Airlift Command (MAC) ter- ventory.’’ The Joint Military/Industry minal. MAC provides terminal services Table of Weights will apply to Code 7, at both origin and destination, and air 8, or J unaccompanied baggage ship- transportation to a designated MAC ments if the inventory has been pre- terminal. The carrier provides trans- pared as a ‘‘Proper Household Goods portation to the destination residence. Descriptive Inventory,’’ in accordance (3) On Code 5 and T shipments, it is with Paragraph 54 of the Tender of often difficult to decide whether the Service for Personal Property House- Government or the carrier was in ac- hold Goods and Unaccompanied Bag- tual custody of the shipment at the gage (DOD 4500.34–R, appendix A). A

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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 supplement is considered a local move, a direct delivery from NTS, or a carrier de- mental service order. The BOA states livery picked up from NTS. These dis- that the contractor shall be liable ‘‘in tinctions are important since different an amount not exceeding fifty dollars liability is involved. ($50.00) per article or package listed on (1) Local move. A local move is a ship- the warehouse receipt or inventory ment performed under a local contract form’’ (i.e., $50.00 per inventory line that authorizes property to be moved item). from one residence to another within a (3) Carrier delivery picked up from NTS. specified area (usually a move from off The NTS portion of the shipment re- base to on base, or the reverse). The quires completion of an Initial Service contract for a local move is the pur- Order, DD Form 1164, to accomplish the chase order prepared by the transpor- ‘‘handling-in’’ of the goods into the tation office which lists the services warehouse for storage, as prescribed by required of the carrier in accordance the provisions of the BOA. When stor- with the provisions of the Federal Ac- age is terminated, the ‘‘handling-out’’ quisition Regulation (FAR). The pur- and post-storage services are accom- chase order usually includes packing plished by issuance of a GBL in accord- and picking up the goods at origin resi- ance with the tender of service. The dence or from storage, transporting the GBL may be issued to a different com- goods within a designated distance, and pany or in some cases to the same com- delivering and unpacking the goods at pany that stored the goods. These are destination. All these services are per- long-term storage, long-distance moves formed under the authority of one pur- processed under the authority of two chase order and will usually be accom- documents: the initial service order plished the same day or within a few and the GBL. Liability is assessed en- days of pickup. Timely notice must tirely against the delivering carrier at exist in order to pursue carrier recov- whatever rate is appropriate for the ery and liability is usually based on a code of service involved, unless the car- released valuation of $.60 per pound per rier prepares an exception sheet (rider) article. The Joint Military/Industry noting damage or loss at the time the Table of Weights is used to calculate li- goods are picked up from the ware- ability. There is no insurance coverage house. The exception sheet must be required on local contractors; if the signed by a warehouse representative.

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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- cle. lieve the carrier from liability as a car- (3) Since 1 January 1981 the destina- rier. If either the carrier alone, or both tion contractor has been held liable for the carrier and the NTS facility, fail to loss and damage unless it can prove pay their proper liability, the file is that it is not at fault, i.e., took excep- forwarded to the Naval Material Trans- tions prior to receipt of goods. The portation Office, (NAVMTO), Norfolk, motor freight carrier is liable for any Virginia for offset action. damage or loss noted against it during (f) Direct Procurement Method (DPM). its portion of the move. If the motor (1) A DPM move is a method in which freight carrier has noted specific dam- the Government manages the shipment age when it received the shipment, li- from origin to destination. Contracts ability is charged against the origin are issued to commercial firms for contractor at $.60 per pound times the packing, containerization, local weight of the article or carton. Damage drayage, and storage services, or Gov- noted against the origin contractor or ernment facilities and employees pro- motor freight carrier should be indi- vide these services. Separate arrange- cated on a valid shipping document and ments are made with carriers and sepa- generally involves distinct damage to rate documents are issued for each seg- or missing containers. These document throughout. DPM contractors are ments must be signed by all parties in- also known as packing and crating volved in the transfer of the goods. (P&C) contractors, as local drayage (4) The destination contractor must contractors, or just as local contrac- receive timely notice of loss or damage tors. via DD Form 1840/1840R and a demand (2) GBL’s for DPM shipments are usu- packet. If exceptions were taken ally only issued to motor freight car- against the origin contractor or motor riers. freight carrier on a transfer document, (i) Block 3 on the GBL entitled they should receive only demand pack- ‘‘service code’’ will contain the letters ets. A, B, H, or V, followed by a second let- (5) In determining destination or ori- ter A, H, K, N, P, R, W, X, or Y. These gin contractor’s liability, the term two letter codes identify the GBL as a ‘‘article’’ has been defined as each ship- DPM contract. ping carton or container and the con- (ii) Block 18, ‘‘consignee,’’ and Block tents thereof, less any exterior crate or 19, ‘‘from,’’ on the GBL contain the shipping carton. The net weight of each name and address of another carrier or article (carton or box) packed within transportation office rather than the the exterior crate or carton may be name and address of the claimant. used to determine the contractor’s li- (iii) Block 27, ‘‘description of ship- ability for a damaged or missing item ment,’’ on most GBL’s contains the originating out of that carton. statement, ‘‘household goods released (6) Claims offices should obtain a at a value of 10 cents per pound per ar- copy of the DPM contract from the ticle.’’ This refers to the motor freight local contracting office or transpor- carrier’s liability only. The origin and tation office in order to identify which destination contractors’ liability is company has the DPM contract and still $.60 per pound times the weight of verify the limits of the liability clause. the article or carton, as indicated in Contracts are awarded on a calendar- the Joint Military/Industry Table of year basis. Weights. (g) Mobile homes. Mobile home claims (iv) If liability lies against the motor represent such a small percentage of freight carrier, the term ‘‘article’’ is claims received that claims personnel

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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- ing upon the United States. curred during transit. A mobile home (vi) Extensions of storage in transit carrier is excused from liability when (SIT). The extension of SIT past 180 the carrier can introduce substantial days is only applicable to household proof that a latent structural defect goods and holdbaggage shipments. It is (one not detectable during the carrier’s not applicable to the shipment of mo- preliminary inspection) caused the loss bile homes. If a mobile home remains or damage. in SIT past 180 days, storage is at the (ii) For damage to contents. The car- owner’s expense. rier’s liability for loss or damage to (2) Notice. Item 306 of the carrier’s household or personal effects inside the rate solicitation states that: ‘‘Upon de- mobile home (such as clothing and fur- livery by the carrier, all loss of or dam- niture. or furnishings which were not age to the mobile home shall be noted part of the mobile home at the time it on the delivery document, the inven- was manufactured) is limited to $250.00 tory form, the DD Form 1800, and/or unless a greater value is declared in the DD Form 1840. Late(r) discovered writing on the GBL. Under the Mobile loss or damage, including personal Home One-Time-Only (MOTO) rate sys- property within the mobile home, will tem, effective for shipments after 1 No- be noted on DD Form 1840R not later vember 1987 the owner no longer pre- than 75 days following delivery and pares his own inventory. Under the shall be accepted by the carrier as MOTO system, the carrier in coordina- overcoming the presumption of cor- tion with the owner is required to pre- rectness of delivery receipt.’’ Notifica- pare a legible descriptive inventory on tion to the carrier may be made on any DD Form 1412, Inventory of Articles of the documents. Claims personnel Shipped in House Trailer. will dispatch the DD Form 1840R in ac- (iii) Agents of the mobile home carrier. cordance with § 751.14. If the shipment is transferred to an- (3) Preparation of demands. The car- other mobile home carrier for trans- rier is liable for the full amount of sub- port, the first carrier will continue to stantiated damage to the mobile home be shown on the GBL and is responsible itself (less estimate fees), plus up to for the mobile home from pickup to de- $250.00 for loss or damage to contents livery. The carrier is also responsible (unless the claimant purchased infor damage caused by third parties it creased released valuation on the con- engages to perform services such as tents). Prepare a demand for this auxiliary towing and wrecking. amount. In addition to the DD Form (iv) Water damage. Water damage to a 1843 and DD Form 1844, the demand double-wide or expando-type mobile packet should include the following home is usually due to the carrier’s documents: failure to provide sufficient protection (i) DD Form 1800, Mobile Home In- against an unexpected rainstorm. Car- spection Record; riers will often assert that this damage (ii) DD Form 1863, Assessorial Serv- is due to an ‘‘act of God’’ and attempt ices, Mobile Home; to avoid liability. It is, however, the (iii) DD Form 1840/1840R, Joint State- carrier’s responsibility to ensure safe ment of Loss or Damage at Delivery/ transit of the mobile home from origin Notice of Loss; to destination. Not only should car- (iv) DD Form 1412, Inventory of Items riers be aware of the risk of flash floods Shipped in House Trailer; and storms in certain locales during (v) DD Form 1841, Government In- certain seasons, but a carrier is sup- spection Report;

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(vi) Driver’s statement, from the under the terms of the storage agree- driver of the towing vehicle; ment. (vii) Claimant’s statement con- (d) Insurer. When the property lost, cerning previous moves; damaged, or destroyed is insured, the (viii) Estimates of repair, preferably claimant must make a demand against two, from firms in the business of re- the insurer for payment under the pairing mobile homes; and terms of the insurance coverage within (ix) Engineer’s statement, or state- the time provided in the policy. If the ment by other qualified professionals. amount claimed is clearly less than the (4) References. Chapter 3 and Appen- policy deductible, no demand need be dix E of DOD 4500.34–R, pertain to mo- made. Failure to pursue a claim bile home shipment and contain much against available insurance will result valuable information. Another source in reducing the amount paid on the 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 § 751.26 Demand on carrier, con- in which the Government has made a tractor, or insurer. recovery against the carrier or contractor, 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 storing or handling while in the cus- to the liable third party. More than tody of the Government, no demand one demand packet should be prepared shall be made against the carrier. when more than one party is deemed to (b) Marine Corps claimants. For Ma- be liable. Do not use original docu- rine Corps claimants, the claims inves- ments. Demand packets should be tigating officer will prepare the claim mailed in official DON envelopes. No against the carrier, contractor, and/or demand packet should be prepared for insurer and will mail it (together with claim files that have been closed or the DD Form 1842 claim package) to when potential recovery is $25.00 or the Commandant of the Marine Corps less. In those cases the outside of file (MHP–40), who will submit and assume folders in the upper left-hand corner the responsibility of monitoring the should be marked ‘‘CLOSED.’’ A de- claim against the carrier. mand packet will include the fol- (c) NTS warehousemen. Whenever lowing: property is lost, damaged, or destroyed (1) DD Form 1843, Demand on Carrier/ while being stored under a basic agree- Contractor; ment between the Government and the (2) DD Form 1844, Schedule of Prop- warehouseman, the claims inves- erty and Claim Analysis Chart; tigating officer, or appropriate Naval (3) DD Form 1841, Government In- Legal Service Command (NLSC) activ- spection Report (if available); ity, shall file a written claim for reim- (4) DD Form 1164, Service Order for bursement with the warehouseman Personal Property (when applicable);

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(5) Copies of all repair estimates the amount necessary to prevent the (translated from foreign languages); claimant from being compensated and twice for the same loss. If the amount (6) Copies of all other supporting doc- payable on a claim is less than the ad- uments deemed appropriate. judicated value of the claim, excess re- (b) Dispatch of demand packets. (1) The coveries from carriers, and other third demand packets are directly dis- parties shall be paid to the member as patched by the appropriate personal long as the total amount paid does not property office or the Naval Legal exceed the value of the claim as adju- Service Office to the third party. dicated. (2) Privately Owned Vehicles (POV’s). (b) Recovered property. When lost Demands for loss or damage to POV’s property is found, the claimant may, at will not be made directly against ocean 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; (iii) The estimated or actual cost of § 751.30 Settlement procedures and repair; third party responses. (iv) A document indicating the condi- (a) Settlement procedures. In the inter- tions of the items upon delivery to the est of expeditious office administra- carrier; and tion, correspondence to carriers and (v) a document indicating the for- contractors should be kept to a min- warding condition of the POV upon its imum. Normally, one rebuttal to a return to Government control. third party’s denial of liability is suffi- The letter of transmittal should iden- cient, unless the carrier or contractor tify the vessel by name, number, and if raises new arguments or provides new available, the sailing date. information. § 751.28 Assignment of claimants (1) Checks from third parties. Accept rights to the government. checks for the amount demanded from The claimant shall assign to the Gov- carriers and contractors. If a carrier or ernment, to the extent of any payment contractor forwards a check for less made on the claim, all rights and inter- than the amount demanded, review the est the claimant may have against any carrier’s arguments for reducing liabil- contractor, carrier, or insurer or other ity to determine if they are acceptable. party arising out of the incident on If the third party’s basis for reducing which the claim is based. The claimant liability is acceptable in the light of all shall also furnish such evidence as may evidence, deposit the check and dis- be required to enable the Government patch the unearned freight letter, if ap- to enforce its claim. If the claimant re- plicable. Mark the front upper left- fuses to cooperate, steps may be taken hand corner of the file as ‘‘CLOSED.’’ to ensure return of monies paid on the (2) Third party offers of settlement. If a item which the Government is trying carrier or contractor offers to settle to collect. the claim, review the carrier’s arguments for reducing liability to deter- § 751.29 Recoveries from carrier, contractor, or insurer. mine if they are acceptable. If the third party’s basis for reducing liability is (a) Recoveries. If a claimant receives acceptable in light of all evidence, in- payment from the Government under form the carrier that the offer is ac- this instruction and also receives com- cepted, but that offset action will be pensation from a carrier, contractor, or insurer for the same loss, the Govern- initiated if a check for that amount is ment shall collect from the claimant not received within 45 days. If a check

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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 tractor’s basis for denying liability in and given the opportunity to confirm the light of all the evidence. or deny the alleged condition of the (i) Acceptable third party reasons for items in question. The burden of proof denial. Mark the front upper left-hand is on the carrier to provide the valid corner of such files as ‘‘CLOSED.’’ exception sheet and establish its free- (ii) Partially acceptable and unaccept- dom from liability. able third party reasons for denial. If the (b) The carrier denies liability for miss- carrier or contractor’s basis for denying or damaged item packed in cartons being liability is acceptable only in part cause it did not pack the shipment and or is completely unacceptable, follow the cartons did not show outside damage. the procedures in subparagraph (3) When a carrier accepts a shipment in above, requesting the amount that is apparent good order, it is responsible justified under the circumstances in for damage to packed items, unless it the light of all the evidence. If a re- can prove that the packing was im- sponse is not received within 45 days, proper and was the sole cause of the or if the third party’s reply is not re- damage. sponsive, request NAVMTO, Norfolk (c) The carrier contends that the mildew (or appropriate contract officer) take damage occurred in NTS and not during offset action as described above. its transport of the shipment. Mildew for- (b) Depreciation. In determining pay- mation is more likely to occur in NTS ments to claimants, the depreciation than in transport. Unsupported by evi- rates from the Allowance List—Depre- dence, however, an allegation that mil- ciation Guide are used. In determining dew formation occurred during NTS

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does not rebut the established prima that could not have been prevented by facie case of a carrier liability. A car- human prudence. It is generally seen as rier must prepare an exception sheet an occurrence in which human skill or and note any mold or mildew damage watchfulness could not have foreseen when the items were picked up from the disaster. The burden of proof is on the NTS facility. The burden of proof is the carrier to establish that an ‘‘act of on the carrier to show that it was free God’’ existed and that it was the sole from negligence and that the damage cause of the damage claimed. Since the was due solely to the formation of mil- carrier can rarely establish this burden dew or mold during the NTS storage. of proof, denial due to an ‘‘act of God’’ (d) The carrier claims that damage is is generally not acceptable. The carrier due to ‘‘inherent vice.’’ Although the cannot avoid liability if it has been carrier may allege that damage was negligent in exposing the goods to po- due to ‘‘inherent vice,’’ the mere alle- tential danger or if it failed to take gation of ‘‘inherent vice’’ is insuffi- reasonable steps to reduce the extent cient to relieve the carrier of liability. of the injury once the danger was dis- The burden of proof is on the carrier to covered. establish that an ‘‘inherent vice’’ ex- (h) The carrier contends that the claim- isted and that it was the sole cause of ant’s repair estimate is excessive and that the damage claimed. Since the carrier its own repair firm can do the job cheaper. can rarely establish this burden of A claimant has the right to select a re- proof, denial due to ‘‘inherent vice’’ is pair firm provided the cost is reason- seldom acceptable. able and not in excess of the item’s (e) The carrier contends that it was de- value. The carrier is liable for the rea- nied the right to inspect. Often a carrier sonable cost of repairing damaged mer- will state that it made several at- chandise that includes labor, material, tempts to make an inspection, but the overhead, and other incidental ex- shipper failed to keep the appointment. penses incurred in reconditioning or If such a case exists, the proper proce- putting the goods in salable condition. dure for the carrier to follow is to con- If the carrier did not provide the tact the claims office for assistance in claims office with an acceptable, lower accomplishing the inspection within a estimate to use in adjudicating the timely manner. A carrier’s efforts to claim, and if the claimant’s estimate is obtain the inspection should be docu- reasonable, then the carrier is liable mented in the file by claims personnel. for the amount paid the claimant. Lack of an inspection alone, however, (i) The carrier contends that liability does not relieve the carrier of liability should have been predicated on the and is insufficient to rebut a well-es- agreed weight of a sofa and not a hide-a- tablished prima facie case of liability. bed. This argument only applies when (f) The carrier denies liability on miss- carrier liability is based on weight. At ing items because the items do not appear the time the inventory is prepared, the on the new inventory made at pickup carrier’s driver must establish whether from the NTS facility. When a carrier a sofa is merely a sofa, or one that con- picks up a shipment from NTS and verts into a bed. Failure to properly chooses to prepare a new inventory, it identify the item on the inventory does must use identical or cross-referenced not relieve the carrier of liability for numbers. If an article such as a chair the greater weight of a sofa bed. or a lawnmower is missing, it must be (j) The carrier argues that it is not re- indicated as ‘‘missing’’ on the new in- sponsible for warpage, rust, etc., due to ventory. Whether or not a new inven- climatic changes. This argument does tory is made, an exception sheet must not relieve a carrier of liability unless be prepared and the missing articles the carrier offers substantial evidence must be noted thereon. To relieve the to show that the damages resulted carrier of liability, both the new inven- solely from unusual circumstances be- tory and the exception sheet must be yond its control, as with an ‘‘act of signed by representatives of the NTS God,’’ or that it occurred while the facility and the carrier. property was in the hands of another (g) The carrier denies liability due to contractor, as reflected upon a valid ‘‘act of God.’’ An act of God is an event NTS exception sheet. The burden of

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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 action 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 correct 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 contracting 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 moves and DPM shipments in which loss or destruction of an item in ship- the origin and/or destination con- ment is attributable to a GBL carrier. tractor is determined to be liable. Unearned freight packets should be ad- When the contractor fails to reply to a dressed to the carrier, and not to the demand within 120 days or fails to agents of GBL carriers, NTS contrac- make an acceptable offer, the file tors, or other contract movers. An un- should be forwarded to the local con- earned freight packet is required when tracting office with a request for offset a mobile home is lost or completely de- action. stroyed. An unearned freight packet in- (c) Unjustified denials and inadequate cludes: settlement offers by carrier or contractor— (1) A Request For Deduction of Un- (1) GBL carriers. If a GBL carrier or in- earned Freight Charges; surer has refused to acknowledge or re- (2) A copy of DD Form 1843; spond to a demand within a reasonable (3) A copy of DD Form 1844; and time (usually 30 days), if the claims in- (4) A copy of the GBL. vestigating officer considers a valid (b) Dispatch. The unearned freight claim to have been denied or not ade- packet is not dispatched to the quate settlement offered, or if settle- NAVMTO, Norfolk until the carrier has ment has been delayed beyond 120 days paid its agreed liability or when offset (see § 751.32(a)), the claim shall be for- has been accomplished. warded to the NLSC activity serving the geographical location recom- § 751.34 GAO appeals. mending that set-off action be taken (a) General. Sections 1 through 12 and against the carrier or contractor. The 52 through 65 of Title 4, GAO Manual,

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Policy and Procedures Manual for § 752.1 Scope. Guidance of Federal Agencies, and 4 This part applies to admiralty-tort CFR parts 30–32 set forth procedures for claims. These include claims against carriers to appeal setoff action. Before the United States for damage caused a carrier can appeal a setoff action to by a vessel in the naval service or by GAO, the command requesting setoff other property under the jurisdiction action must make an administrative of the Navy, or damage caused by a report to GAO. maritime tort committed by an agent (b) Procedures for appeals. (1) The car- or employee of the Navy, and affirma- rier must request appeal from the com- tive claims by the United States for mand requesting setoff action and re- damage caused by a vessel or floating quest a GAO review. object to Navy property. (2) The command requesting setoff action will review the appeal and if it [39 FR 9962, Mar. 15, 1974 is determined the setoff action was appropriate, 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 (1994)). 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 (1994)). Household Goods Loss and Damage (b) Admiralty and Maritime Law Divi- Claims. Other commands dealing with sion of the Office of the Judge Advocate carrier recoveries should get a copy of General. The Navy’s admiralty-tort the manual from the NLSC activity claims are processed and adjudicated in servicing the local area. the Admiralty and Maritime Law Divi- sion of the Office of the Judge Advo- § 751.35 Forms and instructions. cate General. All correspondence with Copies of all of the forms and instruc- the Admiralty and Maritime Law Divi- tions discussed in this part may be ob- sion should be addressed to the Office tained if needed, from the Commanding of the Judge Advocate General (Code Officer, Naval Publications and Forms 11), 1322 Patterson Avenue SE, Suite Center, 5801 Tabor Avenue, Philadel- 3000, Washington Navy Yard, DC 20374– phia, PA 19120. 5066. (c) Mission and policy. The primary PART 752—ADMIRALTY CLAIMS mission of the Admiralty and Maritime Law Division is to effect prompt and Sec. equitable settlements of admiralty 752.1 Scope. claims, both against and in favor of the 752.2 Organization. United States. The settlement proce- 752.3 Claims against the Navy. dure has evolved to eliminate the ex- 752.4 Affirmative claims. penses and delays arising out of litiga- 752.5 Salvage. tion and to obtain results advan- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5013, 5148, tageous to the financial interests of and 7621–7623; 32 CFR 700.206 and 700–1202. the United States. Where settlements

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cannot be made, litigation ensues in (g) Resolving conflicts. Admiralty-tort the Federal Courts. The final test of claims, such as collision, personal-in- whether a settlement is justified is the jury, and death claims, are dealt with probable result of litigation. Settle- by the Admiralty and Maritime Law ments are therefore considered and de- Division, irrespective of whether an termined by the probable results of MSC vessel or other naval vessel is in- litigation. The policy of the Navy is to volved. Whether any particular claim effect fair and prompt settlements of is to be handled by JAG or by MSC, admiralty claims wherever legal liabil- therefore, is determined by the nature ity exists. of the claim. Cases may arise which (d) Admiralty-tort claims. As indicated could be handled by either office. If above, the Admiralty and Maritime doubt exists, such matters should be reported both to JAG and to MSC. An Law Division primarily handles admi- agreement will then be reached be- ralty-tort claims. These are claims for tween the Admiralty and Maritime damage caused by vessels in the naval Law Division and the Office of Counsel, service or by other property under the MSC, as to how the incident should be jurisdiction of the Navy, or damage handled. caused by a maritime tort committed by an agent or employee of the Navy, [39 FR 9962, Mar. 15, 1974, as amended at 55 and claims for damage caused by a pri- FR 12173, Apr. 2, 1990; 65 FR 60861, 60862, Oct. vately owned vessel to a vessel or prop- 13, 2000] erty of the Navy (affirmative claims). § 752.3 Claims against the Navy. The Admiralty and Maritime Law Divi- sion also handles claims for towage and (a) Settlement authority. 10 U.S.C. 7622 salvage services rendered to a vessel in (1994) provides settlement authority for ‘‘(1) Damage caused by a vessel in the the naval service. naval service or by other property (e) Admiralty-contract claims. Admi- under the jurisdiction of the Depart- ralty-contract claims arising out of the ment of the Navy; (2) compensation for operations of the Military Sealift Com- towage or salvage service, including mand (MSC) are handled by its Office contract salvage, rendered to a vessel of Counsel. MSC is responsible for the in the naval service or to other prop- procurement of vessels and space for erty of the Navy; or (3) damage caused the commercial ocean transportation by a maritime tort committed by any of Department of Defense cargo, mail, agent or employee of the Department and personnel. It is also responsible for of the Navy or by property under the the maintenance, repair, and alteration jurisdiction of the Department of the of Government-owned vessels assigned Navy.’’ The limit on the Secretary’s to it. The Office of Counsel, MSC, deals settlement authority is payment of with the various claims of a contract $1,000,000. A claim which is settled for nature which arise out of these oper- an amount over $1,000,000 is certified to ations. These include claims for cargo Congress for payment. Section 7622 pro- damage, charter hire, redelivery, gen- vides that the Secretary may delegate eral average, and claims arising under his settlement authority in matters MSC ship-repair contracts. where the amount to be paid is not (f) Damage caused by Navy contract over $100,000. Under the Secretary’s stevedores. Office of Counsel, Naval delegation, settlements not exceeding Supply Systems Command, has cog- $100,000 may be effected by the Judge nizance of admiralty claims for damage Advocate General, Deputy Judge Advo- caused by Navy contract stevedores. cate General, Assistant Judge Advo- Under these stevedore contracts, the cate General (General Law), and the stevedoring companies are responsible Deputy Assistant Judge Advocate Gen- for negligent acts of their employees eral (Admiralty and Maritime Law). which result in vessel damage. It is im- Authority has also been delegated to portant that the extent of any such Deputy Commander in Chief, U.S. damage be accurately determined and Naval Forces, Europe, and to Com- promptly reported to the contracting mander Sixth Fleet, to pay admiralty officer having cognizance of the par- claims against the Navy not exceeding ticular stevedore contract involved. $10,000, and to

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(b) Settlement is final. The legislation U.S.C. 7623 (1994), and is the reciprocal specifically authorizes the Secretary to of 10 U.S.C. 7622 (1994) 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 (1994)). (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 and Maritime Law Di- is not extended by the filing of claim vision is unable to effect settlement, nor by negotiations or correspondence. the matter is referred to the Depart- A settlement agreement must be ment of Justice for the filing of a com- reached before the end of the two-year plaint against the offending party. period. If settlement is not accom- Thereafter, as in the case of adverse plished, then the claimant must file litigated claims, the Navy has no fur- suit under the appropriate statute to ther authority to effect 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; 65 FR 60861, Oct. 13, ceive the approval of the Secretary of 2000] the Navy or his designee, depending on the amount involved, prior to the expi- § 752.5 Salvage. ration of the two-year period. (a) Scope. This section relates to sal- (e) Matters in litigation. When suit is vage claims against or by the Navy for filed, the matter comes within the cog- compensation for towage and salvage nizance of the Department of Justice, services, including contract salvage, and the Secretary of the Navy is no rendered to a vessel in the naval serv- longer able to entertain a claim or to ice or to other property under the ju- make administrative settlement. risdiction of the Department of the [39 FR 9962, Mar. 15, 1974, as amended at 55 Navy, or for salvage services rendered FR 12173, Apr. 2, 1990; 65 FR 60861, 60862, Oct. by the Department of the Navy. Suits 13, 2000] for salvage may be maintained under the Public Vessels Act, and salvage § 752.4 Affirmative claims. claims are within the Secretary of the (a) Settlement authority. The Navy has Navy’s administrative-settlement au- the same authority to settle affirma- thority under 10 U.S.C. 7622. Salvage tive admiralty claims as it does claims claims against the Navy are reported against the Navy. The statute confer- to and processed by the Judge Advo- ring this authorization is codified in 10 cate General (Admiralty and Maritime

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Law Division). Both claims and suits § 755.1 Statutory authority. for salvage against the United States Article 139, UCMJ, redress of injuries are subject to the two-year limitation to property, is the basis for this chap- of the Public Vessels Act and the ter. Navy’s settlement 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 (1994). 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), 2531 Jefferson Davis vately owned property caused by a per- Highway, NC/3 Room 11E54, Arlington, son or persons in the naval service, are VA 22242–5160. Salvage claims are re- payable under Article 139, UCMJ, only ferred to the Admiralty Division only if such damage, loss, or destruction is if the Assistant Supervisor of Salvage caused by riotous conduct, willful con- (Admiralty) is unsuccessful in making duct, or acts showing such reckless or collection. Any money received in set- wanton disregard of the property rights tlement of affirmative salvage claims of others that willful damage or deis credited to appropriations for main- struction is implied. Acts of the type taining salvage facilities by the Navy, punishable under Article 109, UCMJ, pursuant to 10 U.S.C. 7367 (1994). are cognizable under Article 139, [39 FR 9962, Mar. 15, 1974, as amended at 41 UCMJ. Charges against pay under FR 26866, June 30, 1976; 55 FR 12174, Apr. 2, these regulations shall be made only 1990; 65 FR 60861, 60862, Oct. 13, 2000] 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 cognizable 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. (c) Claims for personal injury or 755.4 Limitation on claims. death. 755.5 Complaint by the injured party and in- (d) Claims arising from acts or omis- vestigation. sions within the scope of employment 755.6 Action where offenders are members of of the offender. one command. (e) Claims for reimbursement for 755.7 Action where offenders are members of damage, loss, or destruction of Govern- different commands. ment property. 755.8 Reconsideration and appeal. 755.9 Effect of court-martial proceedings. § 755.4 Limitation on claims. AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 939, 5013, (a) Time limitations. A claim must be and5148; E.O. 11476, as reported in 3 CFR, 1969 submitted within 90 days of the inci- Comp., p. 132; 32 CFR 700.206 and 700.1202. dent giving rise to it. SOURCE: 56 FR 42232, Aug. 27, 1991, unless (b) Acts of property owner. When the otherwise noted. acts or omissions of the property NOTE 1: This part 755 is chapter IV of the owner, his lessee, or agent were a prox- Manual of the Judge Advocate General of the imate contributing factor to the loss or Navy. damage of the property, assessments NOTE 2: The Uniform Code of Military Jus- will not be made against members of tice (10 U.S.C. 801-940) is referred to in this part 755 as the ‘‘UCMJ’’. The Manual for the naval service in excess of the Courts-Martial, United States, 1984 (E.O. amount for which they are found to be 12473 of August 1, 1984) is referred to in this directly responsible, i.e., comparative part 755 as ‘‘MCM 1984’’. responsibility for the loss will be the

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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 physical damages to the property. Indi- members of one command. 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 commanding officer finds the claim pay- his duly authorized representative or able under these regulations, he shall agent. fix the amount to be assessed against (b) Where the claim alleges mis- the offenders. conduct by members of the command, a (b) Review. If the commanding officer commanding officer to whom the claim has authority to convene a general is submitted shall convene an inves- court-martial, no further review of the tigation under this Manual to inquire investigation is required as to the re- into the matter. Where a complaint is dress of injuries to property. If the received by a commanding officer to commanding officer does not have gen- whose command the alleged offenders eral court-martial convening author- do not report, he shall forward the ity, the investigation and the com- claim and other pertinent information manding officer’s action thereon shall about the matter to the member’s com- be forwarded to the officer exercising manding officer who will convene an general court-martial jurisdiction investigation into the incident. Where (OEGCM) over the command for review the command of the alleged offenders and action on the claim. That officer’s cannot be determined, the claim and action on the claim shall be commu- supporting materials shall be for- nicated to the commanding officer who warded to the Chief of Naval Personnel will take action consistent with the de- or the Commandant of the Marine termination. Corps, as appropriate, for action. (c) Charge against pay. Where the (c) The investigation shall inquire amount does not exceed $5,000.00, the into the circumstances surrounding the amount ordered by the commanding of- claim, gather all relevant information ficer shall, as provided in the Navy about the matter (answering the who, Comptroller Manual, be charged what, where, when, why, and how ques- against the pay of the offenders and tions) and make findings and opinions, the amounts so collected will be paid as appropriate, about the validity of to the claimant. Where the amount ex- the claim under Article 139, UCMJ, and ceeds $5,000.00, the claim, the investiga- these regulations. The investigation tion, and the commanding officer’s rec- shall determine the amount of damage ommendation shall be forwarded for re- suffered by the property owner. view prior to checkage to Head- (d) The investigation shall make rec- quarters, U.S. Marine Corps (Code ommendations about the amount to be JAR) or the Judge Advocate General, assessed against the pay of the respon- as appropriate. The amount charged in sible parties. If more than one person is any single month against the pay of of- found responsible, recommendations fenders shall not exceed one-half of

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basic pay, as defined in paragraph change will be noted in the OEGCM’s 126h(2), Manual for Courts-Martial. The decision. action of the commanding officer in or- (b) Appeal. In claims involving dering the assessment shall be conclu- $5,000.00 or less, a claimant or member sive on any disbursing officer for pay- who has been assessed pecuniary liabil- ment to the claimant of the damages ity may appeal the decision to the assessed, approved, charged, and col- OEGCM. An appeal must be submitted lected. within 5 days of the receipt of the OEGCM’s decision. Appeals will be for- § 755.7 Action where offenders are warded, via the OEGCM, to the Judge members of different commands. Advocate General for review and final (a) Action by common superior. The in- action. In the event of an appeal, the vestigative report shall be forwarded to imposition of the OEGCM’s decision the common superior exercising gen- will be held in abeyance pending the eral court-martial jurisdiction over the final action by JAG. If it appears that commands to which the alleged offend- good cause exists that would make it ers are assigned. That officer shall en- impracticable for an appeal to be sub- sure the alleged offenders are shown mitted within 5 days, the OEGCM may, the investigative report and permitted in his discretion, grant an extension of to comment on it, should they desire, time, as appropriate. His decision on before action is taken on the claim. extensions is final and nonappealable. That officer shall review the investigation and determine whether the claim § 755.9 Effect of court-martial pro- is properly within the provisions of Ar- ceedings. ticle 139, UCMJ, and these regulations, Administrative action under these and whether the facts indicate respon- regulations is separate and distinct sibility for the damage on members of from and is not affected by any dis- his command. If the claim is found pay- ciplinary action against the offender. able under these regulations, he shall The two proceedings are independent. fix the amount to be assessed against Acquittal or conviction of the alleged the offenders and direct the appro- offender by court-martial is evidence priate commanding officers to take ac- for the administrative action, but is tion accordingly. not determinative on the issue of re- (b) Forwarding to SECNAV (JAG). sponsibility for damages under these Where it is not practical or possible to regulations. carry out the procedure in § 755.7(a) of this section, the investigation or inves- PART 756—NONAPPROPRIATED- tigations shall be forwarded to the Sec- FUND CLAIMS REGULATIONS retary of the Navy (Judge Advocate General) who will take action in the Sec. matter. Commanding officers, in such a 756.1 Scope. situation, are not to make charges 756.2 Definitions. against the pay of their members until 756.3 Notification. directed by the Secretary of the Navy 756.4 Responsibility. (Judge Advocate General). 756.5 Investigation. 756.6 Negotiation. § 755.8 Reconsideration and appeal. 756.7 Payment. (a) Reconsideration. The OEGCM may, 756.8 Denial. 756.9 Claims by employees. upon a receipt of a request for reconsideration by either the claimant or a AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 939, 5013, member who has been assessed pecu- and 5148; E.O. 11476 (3 CFR, 1969 Comp., p. niary liability, reopen the investiga- 132); 32 CFR 700.206 and 700.1202. tion or take any other action he be- SOURCE: 57 FR 4736, Feb. 7, 1992, unless oth- lieves is necessary in the interests of erwise noted. justice. If the OEGCM contemplates acting favorably on the request, he will § 756.1 Scope. provide all individuals interested in This part explains how to settle the claim with notice and an oppor- claims for and against the United tunity to respond. The basis for any States for property damage, personal

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injury, or death arising out of the oper- should be given immediate written no- ation of nonappropriated-fund instru- tification. Notification should not be mentalities. postponed until a claim is filed. When the activity is self-insured, the self-in- § 756.2 Definitions. surance fund shall be notified of the po- (a) Nonappropriated-fund instrumen- tential liability by the activity. tality (NAFI). An instrumentality of the Federal Government established to § 756.4 Responsibility. generate and administer non- The primary responsibility for the appropriated-funds for programs and negotiation and settlement of claims services contributing to the mental resulting from nonappropriated-fund and physical well-being of Department activities is normally with the NAFI of Defense personnel and their depend- and its insurer. NAFI’s, however, are ents. A NAFI is not incorporated under Federal agencies within the meaning of the laws of any State and enjoys the the Federal Tort Claims Act if charged privileges and immunities of the Fed- with an essential function of the De- eral Government. partment of the Navy and if the degree (b) Nonappropriated-funds. Funds gen- of control and supervision by the Navy erated through the use and patronage is more than casual or perfunctory. of NAFI’s, not including funds appro- Compare United States v. Holcombe, 277 priated by Congress. F.2d 143 (4th Cir. 1960) and Scott v. (c) Employees of NAFI. Civilian per- United States, 226 F. Supp. 846, (D. Ga. sonnel employed by NAFI’s whose sala- 1963). Consequently, to the extent sov- ries are paid from nonappropriated- ereign immunity is waived by the Fed- funds. Also, military personnel work- eral Tort Claims Act, 28 U.S.C. 1346(b), ing part-time at NAFI’s when com- 2671–2672, 2674–2680, the United States pensated from nonappropriated-funds. remains ultimately liable for payment of NAFI claims. § 756.3 Notification. (a) Some NAFI’s, such as flying § 756.5 Investigation. clubs, carry private commercial insurance to protect them from claims for Claims arising out of the operation of property damage and personal injury NAFI’s, in and outside the United attributable to their operations. The States, shall be investigated in accord- Commandant of the Marine Corps, the ance with the procedures for inves- Chief of Naval Personnel, and the Com- tigating similar claims against appro- mander, Naval Supply Systems Com- priated fund activities in order to pro- mand determine whether NAFI’s with- tect the residual liability of the United in their cognizance shall carry liability States. All claims should be submitted insurance or become self-insurers, in to the command having cognizance whole or in part. over the NAFI involved. (b) The Marine Corps requires manda- § 756.6 Negotiation. tory participation in the Morale, Wel- fare and Recreation (MWR) Composite (a) General. Claims from NAFI’s Insurance Program by the following should be processed primarily through operations: MWR operations and retail NAFI claims procedures, using as services, food and hospitality, recre- guidelines the regulations and statutes ation; and special NAFI activities in- applicable to similar appropriated fund cluding flying clubs, rod and gun clubs, activity claims. Interservice Rifle Fund, Marine Corps (b) When the NAFI is insured. When a Marathon and Dependent Cafeteria NAFI is insured, the insurer or the con- Fund. The following organizations may tracted third-party claims adminis- also participate in the MWR Composite trator (TPA) will normally conduct ne- Insurance Program, if desired: Child gotiations with claimants. The appro- welfare centers, billeting funds, chapel priate naval adjudicating authority as funds, and civilian welfare funds. shown in 32 CFR 750.34(c)(2)(ii) has the (c) When the operations of NAFI’s re- responsibility of monitoring the nego- sult in property damage or personal in- tiations conducted by the insurer or jury, the insurance carrier, if any, TPA. Monitoring is normally limited

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to ascertaining someone has been as- (d) Other claims. A NAFI’s private in- signed to negotiate, to obtain periodic surance policy is usually not available status reports, and to close files on set- to cover losses which result from some tled claims. Any dissatisfaction with act or omission of a mere participant the insurer’s or TPA’s handling of the in a nonappropriated-fund activity. In negotiations should be referred di- the event the NAFI declines to pay the rectly to the Judge Advocate General claim, the file shall be forwarded to the for appropriate action. Under special Judge Advocate General for determina- circumstances, even when there is an tion. insurer or TPA, the appropriate naval adjudicating authority may conduct § 756.8 Denial. negotiations, provided the command Claims resulting from non- involved and the insurer agree to it. appropriated-fund activities may be de- When an appropriate settlement is ne- nied only by the appropriate naval ad- gotiated by the Navy, the rec- judicating authority. Such a denial is ommended award will be forwarded to necessary to begin the 6-month limita- the insurer or TPA for payment. tion on filing suit against the United (c) When the NAFI is not insured. States for claims filed under the Fed- When there is no private, commercial eral Tort Claims Act. Denial of a claim insurer and the NAFI has made no shall be in writing and in accordance independent arrangements for negotia- with subparts A or B of part 750 of this tions, the appropriate Navy adjudi- chapter, as appropriate. The appro- cating authority is responsible for con- priate naval adjudicating authority ducting negotiations. When an appro- should not deny claims which have ini- priate settlement is negotiated by the tially been processed and negotiated by Navy, the recommended award will be a nonappropriated-fund activity, its in- forwarded to the NAFI for payment surer or TPA until the activity or its from nonappropriated-funds. insurer has clearly stated in writing that it does not intend to pay the § 756.7 Payment. claim and has elected to defend in (a) Claims that can be settled for less court. than $1000.00. A claim not covered by insurance (or not paid by the insurer), § 756.9 Claims by employees. that can be settled for $1000.00 or less, (a) Personal injury or death of citizens may be adjudicated by the com- or permanent residents of the United manding officer of the activity con- States employed anywhere, or foreign na- cerned or designee. The claim shall be tionals employed within the United paid out of funds available to the com- States. Compensation is provided by the manding officer. Longshore and Harbor Workers’ Com- (b) Claims that cannot be settled for less pensation Act (33 U.S.C. 901–950) for than $1000.00. A claim negotiated by the employees of NAFI’s who have suffered Navy, not covered by insurance, that injury or death arising out of and in cannot be settled for less than $1000.00, the course of their employment (5 shall be forwarded to the appropriate U.S.C. 8171). That Act is the exclusive nonappropriated-fund headquarters basis for Government liability for inju- command for payment from its non- ries or deaths that are covered (5 appropriated-funds. U.S.C. 8173). A claim should first be (c) When payment is possible under an- made under that Act if there is a sub- other statute. In some cases neither the stantial possibility the injury or death NAFI nor its insurer may be legally re- is covered. sponsible. In those instances, when (b) Personal injury or death of foreign there is no negligence, and payment is nationals employed outside of the conti- authorized under some other statute, nental United States. Employees who are such as the Foreign Claims Act, 10 not citizens or permanent residents, U.S.C. 2734–2736, the claim may be con- and who are employed outside the considered for payment from appropriated tinental United States, are protected funds or may be referred to the Judge by private insurance of the NAFI or by Advocate General for appropriate ac- other arrangements (5 U.S.C. 8172). tion. When a nonappropriated-fund activity

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has neglected to obtain insurance cov- ment of Defense Directive 5515.11 1 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- PART 757—AFFIRMATIVE CLAIMS tive Government tort claims pursuant REGULATIONS to 28 U.S.C. 2415(b).

Subpart A—Property Damage Claims § 757.3 Regulatory authority. The regulations published in 4 CFR Sec. 757.1 Scope of subpart A. chapter II control the collection and 757.2 Statutory authority. settlement of affirmative claims. This 757.3 Regulatory authority. section supplements the material con- 757.4 Claims that may be collected. tained in those regulations. Where this 757.5 Assertion of claims and collection pro- section conflicts with the materials cedures. and procedure published in 4 CFR chap- 757.6 Waiver, compromise, and referral of ter II, the latter controls. claims. 757.7–757.10 [Reserved] § 757.4 Claims that may be collected. Subpart B—Medical Care Recovery Act (a) Against responsible third parties for (MCRA) Claims damage to government property, or the property of nonappropriated-fund activi- 757.11 Scope of subpart B. 757.12 Statutory authority. ties. It should be noted, however, that 757.13 Responsibility for MCRA action. as a general rule, the Government does 757.14 Claims asserted. not seek payment from 757.15 Claims not asserted. servicemembers and Government em- 757.16 Claims asserted only with JAG ap- ployees for damages caused by their proval. simple negligence. Exceptions to this 757.17 Statute of limitations. general policy will be made when the 757.18 Asserting the claim. incident involves aggravating cir- 757.19 Waiver and compromise. 757.20 Receipt and release. cumstances. (b) For medical costs from third party AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 939, 5013, payers in accordance with 10 U.S.C. 1095. and 5148; E.O. 11476, 3 CFR, 1969 Comp., p. 132; 32 CFR 700.206 and 700.1202. These claims are asserted and collected by the medical treatment facilities SOURCE: 57 FR 5072, Feb. 12, 1992, unless under the coordination of benefits pro- otherwise noted. gram. (c) For money paid or reimbursed by the Subpart A—Property Damage government for damage to a rental car in Claims accordance with the Joint Federal Travel Regulations (volume 1, paragraph U 3415– § 757.1 Scope of subpart A. C and volume 2, paragraph C 2101–2). Subpart A describes how to assert, Collection action shall be taken administer, and collect claims for dam- against third parties liable in tort. Col- age to or loss or destruction of Govern- lection action shall not be taken ment property through negligence or against Government personnel who wrongful acts. rented the vehicle. (d) Other claims. Any other claim for § 757.2 Statutory authority. money or property in favor of the (a) General. With the exception of United States cognizable under the MCRA claims, all affirmative claims for money or property in favor of the 1 Copies may be obtained if needed, from United States shall be processed in ac- the Commanding Officer, U.S. Naval Publica- cordance with the Federal Claims Col- tions and Forms Center, 5801 Tabor Avenue, lection Act (31 U.S.C. 3711). Depart- Philadelphia, PA 19120.

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Federal Claims Collection Act not spe- (f) Full payment. When a responsible cifically listed above. party or insurer tenders full payment or a compromise settlement on a § 757.5 Assertion of claims and collec- claim, the payment should be in the tion procedures. 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 claims. The following officers are au- 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 5515.8.2 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 action on affirmative claims of some other reasonable cause. In all in- $20,000.00 or less. stallment arrangements, a confession (d) Determining liability. Liability of judgment note setting out a repay- must be determined in accordance with ment schedule should be executed. the law of the place in which the dam- (h) Damage to nonappropriated-fund age occurred, including the applicable instrumentality (NAFI) property. Any traffic laws, elements of tort, and pos- amount collected for loss or damage to sible defenses. property of a NAFI shall be forwarded (e) Assertion of a claim. (1) Assertion to the headquarters of the non- of the claim is accomplished by mail- appropriated-fund activity for deposit ing to the tortfeasor a ‘‘Notice of with that activity. In those situations Claim.’’ The notice is to be mailed cer- where the recovery involves damage to tified mail, return receipt requested, both NAFI-owned property and other and should include the following infor- Government property, e.g., destruction mation: of an exchange building resulting in damage to both the building and the (i) Reference to the statutory right exchange-owned property inside, recov- to collect; ery for the exchange-owned property (ii) A demand for payment or restora- shall be forwarded to the NAFI. Recov- tion; ery for building damage shall be depos- (iii) A description of damage; ited in accordance with § 757.5(f) above. (iv) The date and place of the inci- (i) Damage to industrial-commercial dent; and property. When a loss or cost of repair (v) The name, phone number, and of- has been borne by an industrial-com- fice address of the claims personnel to mercial activity, payment shall be de- contact. posited in the Navy Industrial Fund of (2) See also 4 CFR part 102. the activity in accordance with the provisions of the Navy Comptroller 2 See footnote 1 to § 757.2. Manual. When a claim is based on a

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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- Subpart B—Medical Care tion, it is considered to be in the best Recovery Act (MRCA) Claims interests of the United States. § 757.11 Scope of subpart B. (k) Release. The commanding officer or officer in charge is authorized to Subpart B describes the assertion and execute a release of the claim when all collection of claims for medical care repairs have been completed to the under the Medical Care Recovery Act Government’s satisfaction, and when (MCRA). The MCRA states that when all repair bills have been paid. No prior the Federal Government provides approval from the Judge Advocate Gen- treatment or pays for treatment of an eral is required for this procedure. If individual who is injured or suffers a repair or replacement is made, a nota- disease, the Government is authorized tion shall be made in any investigation to recover the reasonable value of that or claims file. treatment from any third party legally liable for the injury or disease. § 757.6 Waiver, compromise, and referral of claims. § 757.12 Statutory authority. Medical Care Recovery Act, 42 U.S.C. (a) Officials authorized to compromise 2651–2653 (1982). claims. The officers identified in § 757.5(b) may collect the full amount § 757.13 Responsibility for MCRA ac- on all claims, and may compromise, tion. execute releases or terminate collec- (a) JAG designees. (1) Primary respon- tion action on all claims of $20,000.00 or sibility for investigating, asserting, less. Collection action may be termi- and collecting Department of the Navy nated for the convenience of the Gov- (DON) MCRA claims and properly for- ernment if the tortfeasor cannot be lo- warding MCRA claims to other Federal cated, is found to be judgment-proof, departments or agencies rests with the has denied liability, or has refused to following officers: respond to repeated correspondence (i) Commanding officers and officers concerning legal liability involving a in charge, Naval Legal Service Com- small claim. A termination for the con- mand (NLSC) activities, in their areas venience of the Government is made of geographic responsibility; after it is determined that the case (ii) Officer in charge, U.S. Sending does not warrant litigation or that it is State Office, Rome in his area of geo- not cost-effective to pursue recovery graphic responsibility. efforts. (2) JAG designees may assert and re- (b) Claims over $100,000.00. Claims in ceive full payment on any MCRA excess of $100,000.00 may not be com- claim. They may, however, agree to promised for less than the full amount compromise or waive only claims for or collection action terminated with- $40,000.00 or less. Claims in excess of out approval from the Department of $40,000.00 may be compromised or Justice (DOJ). waived only with DOJ approval. Such (c) Notification. The Judge Advocate claims will be forwarded to the Judge General shall be notified prior to all re- Advocate General in accordance with quests made to the DOJ to com- § 757.6. See § 757.7 for further discussion promise, terminate collection, or refer- of waiver and compromise. ral for further collection action or liti- (b) Navy Medical Treatment Facilities gation. (MTF). (1) Naval MTF’s are responsible

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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 (a) General. The DON asserts MCRA makes the determination of liability. claims when medical care is furnished (i) MTF computes the value of the to Navy and Marine Corps active duty care it provided on NAVJAG Form 5890/ personnel, retirees, or their depend- 12. Rates used to compute this value ents, and third-party tort liability for are published annually in the FEDERAL the injury or disease exists. Claims are REGISTER by the Office of Management asserted when the injured party is and Budget. treated in a military MTF or when the (ii) Block 4 of NAVJAG Form 5890/12 DON is responsible for reimbursing a requires a statement from the patient non-Federal care provider. Claims for describing the circumstances of the in- medical care furnished are also as- jury or disease. serted using alternate theories of re- (iii) An ‘‘interim’’ report is prepared covery if the MCRA does not apply. See for inpatients only. An interim report § 757.14(e). is prepared every 4 months until the 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 patient’s care is transferred to another name and for its own benefit. Proce- facility. A narrative summary should dural defenses, such as a failure of the accompany the final report in all cases injured person to properly file and/or involving inpatient care. In addition, serve a complaint on the third party, the back side of NAVJAG Form 5890/12 that may prevent the injured person is completed as part of the final report from recovering, do not prevent the when the value of Federal Government United States from pursuing its own care exceeds $1,000.00. action to recover the value of medical (c) The Office of Medical and Dental treatment provided to the injured per- Affairs (OMA). The office pays emer- son. The right arises directly from the gency civilian medical expenses in- statute; the statutory reference to sub- curred by active duty members. This rogation pertain only to one mode of office furnishes MCRA claims informa- enforcement. In creating an inde- tion to the NLSC activity or USSSO. pendent right in the Government, the The address is Bldg. 38H, U.S. Naval Act prevents a release given by the in- Training Center, Great Lakes, IL 60088– jured person to a third party from af- 5200. fecting the Government’s claim. (d) Civilian Health and Medical Pro- (c) Liable parties. MCRA claims may gram of the Uniformed Services be asserted against individuals, cor- (CHAMPUS) contractors. CHAMPUS porations, associations and non-Fed- contractors forward reports of pay- eral Government agencies subject to ments in injury cases to the appro- the limitations described in § 757.15. priate NLSC activity. Responsible JAG (d) Reasonable value of medical care. designees should, however, initiate reg- The reasonable value of medical care ular contact with contractors within provided to an injured person is deter- their geographic area to ensure all rel- mined: evant cases have been reported. (1) By using the rates set by the Of- (e) Department of Justice (DOJ). Only fice of Management and Budget and the DOJ may authorize compromise or published in the FEDERAL REGISTER for

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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 insurance 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 policy. The ability of the Federal Gov- third parties and forward a copy of ernment to recover as a third-party their claims file, along with rec- beneficiary has been upheld in some ommendations on assertion, to the states, while other states have taken Judge Advocate General: the contrary position. (a) Certain Government contractors. (2) Recovery may also be possible JAG approval is required before assert- under State workers’ compensation ing an MCRA claim against a Federal laws. Case law in this area is still Government contractor when the con- emerging, but in most jurisdictions, tract provides that the contractor will the United States stands in the posi- be indemnified or held harmless by the tion of a lien claimant for services ren- Federal Government for tort liability. dered. (b) Foreign Governments. JAG approval is required before asserting § 757.15 Claims not asserted. MCRA claims against foreign govern- In some cases, the MCRA or public ments, their political subdivisions, policy considerations limit the DON’s Armed Forces members, or civilian em- assertion of claims against apparent ployees. third-party tortfeasors. MCRA claims (c) U.S. personnel. JAG approval is re- are not asserted against: quired before asserting MCRA claims (a) Federal Government agencies. against U.S. servicemembers, their de- Claims are not asserted against any dependents and employees of the United partment, agency or instrumentality of States, or their dependents for injury the United States. ‘‘Agency or instru- to another person. mentality’’ includes self-insured, nonappropriated-fund activities but does § 757.17 Statute of limitations. not include private associations. (a) Federal. The United States, or the (b) Injured servicemembers, dependents injured party on behalf of the United and employers of the United States. States, must file suit within 3 years Claims are not asserted directly after an MCRA action accrues. 28

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U.S.C. 2415. Generally this is 3 years (b) Investigating the claim. While there from the date of initial Federal treat- is no prescribed form or content for in- ment or Federal Government payment vestigating these claims, the claims to a private care provider, whichever is file will contain sufficient information first. on which to base valuation, assertion, (b) State. Some State statutes of lim- settlement, waiver, and/or compromise itations may also apply where recovery decisions. Usually the file will contain: is based on authority such as workers’ (1) Identification of each person in- compensation statutes, no-fault insur- volved in the incident including name, ance statutes, no-fault medical pay- address, occupation, and nature of in- ments, or uninsured motorist provi- volvement; sions of insurance contracts. (2) Police, social service, and other § 757.18 Asserting the claim. Federal, State and local agency reports on the incident; (a) Initial action by JAG designee. (3) Completed copies of NAVJAG When advised of a potential MCRA Form 5890/12 3 or equivalent forms from claim, the JAG designee will determine other agencies and departments; the Federal agency or department responsible 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- (7) Itemized repair bills or estimates jured person will determine the agency of repair of damaged Federal Govern- which will assert a resulting MCRA ment property; claim. (8) Where an identified third-party (i) Where Navy or Marine Corps mem- tortfeasor is a uniformed bers, retirees, or their dependents re- servicemember or a U.S. employee, in- ceive medical treatment from another formation and findings concerning that Federal agency or department, the person’s duty or scope of employment DON will usually assert any MCRA status at the time of the incident giv- claim on behalf of the United States ing rise to the injury; based on information provided by the (9) Where an identified third-party treating agency or department. tortfeasor is a uniformed (ii) Similarly, where a Navy MTF servicemember or a U.S. employee or provides care to personnel of another the dependent of a uniformed service Federal agency or department, that member or U.S. employee, information other agency or department will usu- and findings concerning whether that ally assert any claim on behalf of the individual was grossly negligent or United States. willfully culpable and whether that in- (3) If the claim is not one which the dividual had insurance coverage at the DON should assert, the JAG designee time of the incident giving rise to the will forward all available information injury; to the appropriate department or agen- (10) Financial information on identi- cy. fied third-party tortfeasors including (4) If the claim is one which the DON names and addresses of insurance car- should assert, the JAG designee will riers, insurance policy numbers, and ensure an appropriate investigation extent of coverage; and into the circumstances underlying the claim is initiated and will provide no- (11) A statement whether the injured tice to the injured party and all third person or his attorney will protect the parties who may be liable to the in- interests of the United States. jured person and the United States under the MCRA. 3 See footnote 3 to § 757.2.

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(c) Claims forwarded to JAG or DOJ. In injuries to the injured person. It is not those cases where the file must be for- necessary or desirable to delay mailing warded to JAG or DOJ, the file will this notice until the completion of the also include: investigation convened to inquire into (1) A summary of the case which in- the circumstances underlying the inci- cludes the circumstances of the incident causing the injury. The prompt dent which caused the injury, the assertion of the claim will ensure that source, extent and value of medical the Government is named on the set- care provided and a brief of the appli- tlement draft. If the United States is cable law on the liability of the third not so named, and the claim has been party; asserted, the insurer settles at its own (2) Copies of all correspondence; and risk. (3) Recommended disposition. (2) The JAG designee will also notify (d) Request for assistance in conducting the injured person or his legal rep- investigation. When an injury for which resentative of the Government’s inter- the DON may assert an MCRA claim est in the value of the medical care occurs at a place where the DON does provided by the United States. This no- not have a command, unit, or activity tice will advise that: conveniently located for conducting an (i) The United States may be entitled inquiry into the circumstances under- to recover the reasonable value of med- lying the injury, the NLSC activity or ical care furnished or paid for by the USSSO having responsibility for ad- Federal Government; ministering any resulting MCRA claim (ii) The injured person is required to may request assistance from any other cooperate in the efforts of the United command, unit, or activity within the States to recover the reasonable value DOD. Such assistance may take the of medical care furnished or paid for by form of a complete inquiry into the cir- the Federal Government; cumstances underlying the incident or (iii) The injured person is required to it may only cover part of the necessary furnish a statement regarding the cir- inquiry and fact gathering. If a NLSC cumstances surrounding the care and activity or USSSO receives a similar treatment; request from another command, unit or activity within the DOD, every effort (iv) The injured person may seek should be made to honor the request. legal guidance concerning any possible Assistance will normally be provided claim for personal injury; without reimbursement from the re- (v) The injured person is required to questing service. furnish information concerning legal (e) Notice of claim. (1) The JAG des- action brought against any individual ignee will assert appropriate MCRA involved in the incident and provide claims by mailing, certified mail, re- the name of counsel representing the turn receipt requested, a notice of parties to such an action; and claim (SF 96) to identified third-party (vi) The injured person should not tortfeasors and their insurers, if execute a release or settle a claim aris- known. Many insured tortfeasors fail ing from the incident causing the in- to notify their insurance companies of jury without first notifying the JAG incidents. This failure may be a breach designee. of the cooperation clause in the policy (f) Administering the claim. (1) After and may be grounds for the insurer to investigating and asserting the claim, refuse to defend the insured or be re- the JAG designee will maintain con- sponsible for any liability. The United tact with all parties, their legal rep- States, as a claimant, may preclude resentatives, and insurers. such an invocation by giving the req- (2) An effort should be made to co- uisite notification itself. The purpose ordinate collection of the Federal Gov- of the insurance clause is satisified if ernment’s MCRA interest with the in- the insurer receives actual notice of jured person’s action to collect his own the incident, regardless of the inform- claim for damages. ant. This notice should be mailed as (i) Attorneys representing an injured soon as it reasonably appears an identi- person may be authorized to include fied third party may be liable for the the Federal Government’s MCRA claim

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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 JAG to refer the claim to the DOJ for claim file will be forwarded to JAG in possible suit. In such cases, the JAG accordance with §§ 757.18 (b) and (c). designee will forward the complete file (b) Waiver. The JAG designee may to JAG in accordance with §§ 757.18 (b) waive the Federal Government’s MCRA and (c). interest when a responsible third-party (g) Access to DON records and informa- tortfeasor cannot be located, is judg- tion. (1) The medical records of the in- ment proof, or has refused to pay and jured person will be released to the in- litigation is not feasible. Waiver is also jured person or his legal representative appropriate when, upon written request upon request. This release will be with- by the injured person or legal rep- out cost except in unusual cir- resentative, it is determined that col- cumstances. These records may not be lection would cause undue hardship to released to anyone else outside the the injured person. In assessing undue DON except in accordance with the hardship, the following circumstances provisions of the Privacy Act, 5 U.S.C. of the injured person should be consid- 552a. Usually such a release will re- ered: quire authorization from the injured (1) Permanent disability or disfigure- individual or legal representative or an ment; order from a court of competent juris- (2) Lost earning capacity; diction. A clerk or attorney signed sub- (3) Out-of-pocket expenses; poena is not ‘‘an order from a court of (4) Financial status; competent jurisdiction.’’ (5) Disability, pension and similar (2) In appropriate cases, military benefits available; health care providers who have exam- (6) Amount of settlement or award ined or treated the injured person may from third-party tortfeasor; and be made available by their commands (7) Any other factors which objec- to testify regarding the medical care tively indicate fairness requires waiv- provided to the injured person. Re- er. quests for such testimony will be proc- (c) Compromise. The JAG designee essed in accordance with DOD Direc- may, upon written request of the in- tive 5405.2, 28 CFR part 725, and 32 CFR jured person or legal representative,

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compromise the Federal Government’s ceipt will be mailed to the party mak- MCRA interest using the criteria listed ing payment and a copy of the ac- above. knowledgement kept in the claim file. (b) Release. The JAG designee will § 757.20 Receipt and release. execute and deliver a release to third (a) Payment. The JAG designee may parties making full or compromised receive payment in part or in full for payment on the Federal Government’s any claim for which he is responsible. MCRA interest. A copy of the release Written acknowledgment of this re- will be kept in the claims file.

SUBCHAPTER F—ISLANDS UNDER NAVY JURISDICTION

PART 761—NAVAL DEFENSIVE SEA Subpart A—Introduction AREAS; NAVAL AIRSPACE RES- ERVATIONS, AREAS UNDER NAVY § 761.1 Scope. ADMINISTRATION, AND THE (a) This part provides regulations TRUST TERRITORY OF THE PACIFIC governing the entry of persons, ships, and aircraft into: ISLANDS (1) Naval Defensive Sea Areas and Naval Airspace Reservations estab- Subpart A—Introduction lished by Executive order of the Presi- Sec. dent (see § 761.3(a)). 761.1 Scope. (2) Areas placed under the Secretary 761.2 Background and general policy. of the Navy for administrative pur- 761.3 Authority. poses by Executive order of the Presi- 761.4 Special provisions. dent (see § 761.3(b)). 761.5 Definitions. (3) The Trust Territory of the Pacific Islands (see § 761.3(c)). Subpart B—Criteria and Basic Controls (b) The entry authorizations issued 761.6 Criteria. under the authority of this part do not 761.7 Basic controls. supersede or eliminate the need for visas or other clearances or permits re- Subpart C—Entry Authorization quired by other law or regulation. 761.8 General. [28 FR 13778, Dec. 18, 1963, as amended at 35 761.9 Entry Control Commanders. FR 10008, June 18, 1970] 761.10 Persons: Group authorizations. 761.11 Persons: Individual authorizations. § 761.2 Background and general policy. 761.12 Ships: Group authorizations. (a) Certain areas, due to their stra- 761.13 Ships: Individual authorizations. tegic nature or for purposes of defense, 761.14 Aircraft: Group authorizations. have been subjected to restrictions re- 761.15 Aircraft: Individual authorizations. garding the free entry of persons, ships, 761.16 Notice of action. and aircraft. Free entry into the areas 761.17 Revocation. listed and defined in this part, and 761.18 Appeals. military installations contiguous to or 761.19 Forms. within the boundaries of defense areas, Subpart D—Additional Instructions is subject to control as provided for by Executive order or other regulation. 761.20 Additional regulations governing per- The object of controls over entry into sons and vessels in Naval Defensive Sea naval defensive sea areas, naval air- Areas. space reservations, administrative AUTHORITY: 5 U.S.C. 301, 10 U.S.C. 5031, 6011, areas, and the Trust Territory of the 18 U.S.C. 2152. The text of part 761 contains Pacific Islands, is to provide for the additional references, including Executive protection of military installations as Orders. well as other facilities, including the SOURCE: 28 FR 13778, Dec. 18, 1963, unless personnel, property, and equipment as- otherwise noted. signed to or located therein. Persons,

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ships, and aircraft are excluded unless February 14, 1941 (6 FR 1014; 3 CFR, 1943 and until they qualify for admission Cum. Supp., p. 893). under the applicable Executive order or (iii) Pearl Harbor Defensive Sea regulation. Area: Executive Order 8143 of May 26, (b) The control of entry into or move- 1939 (4 FR 2179; 3 CFR, 1943 Cum. Supp., ment within defense areas by persons, p. 504). ships, or aircraft will be exercised so as (iv) Johnston Island Naval Defensive to fully protect the physical security Sea Area; Johnston Island Naval Air- of, and insure the full effectiveness of, space Reservation: Executive Order bases, stations, facilities and other in- 8682 of February 14, 1941 (6 FR 1015; 3 stallations within or contiguous to de- CFR, 1943 Cum. Supp., p. 894) as amend- fense areas. However, unnecessary ined by Executive Order 8729 of April 2, terference with the free movement of 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., persons, ships, and aircraft is to be p. 919) and Executive Order 9881 of Au- avoided. gust 4, 1947 (12 FR 5325; 3 CFR, 1943–1948 (c) This part will be administered so Comp., p. 662). as to provide for the prompt processing (v) Kingman Reef Naval Defensive of all applications and to insure uni- Sea Area; Kingman Reef Naval Air- formity of interpretation and applica- space Reservation: Executive Order tion, insofar as changing conditions 8682 of February 14, 1941 (6 FR 1015; 3 permit. CFR, 1943 Cum. Supp., p. 894) as amend- (d) In cases of doubt, the determina- ed by Executive Order 8729 of April 2, tion will be made in favor of the course 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., of action which will best serve the in- p. 919) and Executive Order 9881 of Au- terests of the United States and na- gust 4, 1947 (12 FR 5325; 3 CFR, 1943–1948 tional defense as distinguished from Comp., p. 662). the private interests of an individual or (vi) Midway Island Naval Defensive group. Sea Area; Midway Island Naval Air- 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 amended 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 (ix) Kodiak Naval Defensive Sea December 20, 1941 (6 FR 6675; 3 CFR, Area: Executive Order 8717 of March 22, 1943 Cum. Supp., p. 1048). 1941 (6 FR 1621; 3 CFR, 1943 Cum. Supp., (ii) Kaneohe Bay Naval Defensive Sea p. 915). Kodiak Naval Airspace Reserva- Area; Kaneohe Bay Naval Airspace tion: Executive Order 8597 of November Reservation: Executive Order 8681 of 18, 1940 (5 FR 4559; 3 CFR, 1943 Cum.

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Supp., p. 837) as amended by Executive control of the Department of the Army Order 9720 of May 8, 1946 (11 FR 5105; 3 (Kwajalein Atoll) and of the Defense CFR, 1943–1948 Comp., p. 527). Nuclear Agency (Eniwetok Atoll) see (x) Unalaska Island Naval Defensive § 761.4) is controlled by the High Com- Sea Area, Unalaska Island Naval Air- missioner of the Trust Territory and space Reservation: Executive Order the Department of the Navy as follows: 8680 of February 14, 1941 (6 FR 1014; 3 (1) Entry of U.S. citizens and nation- CFR, 1943 Cum. Supp., p. 892) as amend- als and citizens of the Trust Territory, ed by Executive Order 8729 of April 2, into areas of the Trust Territory other 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., than those areas under control of the p. 919). See § 761.4(d) for delineation of Department of the Army and the De- areas where entry controls are sus- fense Nuclear Agency as outlined pended. above, shall be controlled by the High (b) Administrative areas. By Executive Commissioner. orders, as amended, the President has (2) All other persons: Applications for reserved, set aside, and placed under entry into the Trust Territory except the control and jurisdiction of the Sec- for those areas under control of the De- retary of the Navy for administrative partment of the Army or of the Defense purposes the following named areas in- Nuclear Agency, of all persons who are cluding their appurtenant reefs and not U.S. citizens, U.S. nationals, or territorial waters: who are not citizens of the Trust Terri- (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,

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That prior to the issuance of an au- the Kwajalein Atoll should be directed thorization to enter the Trust Terri- to: National Range Commander, U.S. tory, the High Commissioner shall pro- Army Safeguard System Command, vide the Department of the Navy in all ATTN: SSC–R, P.O. Box 1500, Hunts- cases with information on the appli- ville, AL 35807. cants for its consideration and com- (b) Entry into Eniwetok Atoll is con- ment, granting thereby the right of the trolled by the Defense Nuclear Agency. Department of the Navy to object to Inquiries concerning entries into Eni- the issuance of an authorization. wetok Atoll should be directed to: (d) [Reserved] Commander, Field Command, Defense (e) Exercise of authority. The author- Nuclear Agency, Kirtland Air Force ity of the Secretary of the Navy to con- Base, NM 87115. trol entry of ships, planes, and persons (c) Entry into Johnston Atoll is con- into the areas listed is exercised trolled by the Defense Nuclear Agency. through the Chief of Naval Operations Inquiries concerning entries into John- and certain of his subordinates as pre- ston Atoll should be directed to: Com- scribed in this part. mander, Johnston Atoll (FCDNA), APO (f) Penalties. Penalties are provided San Francisco, CA 96305. by law: (1) For violations of orders or (d) Suspension of restrictions. Restric- regulations governing persons or ships tions imposed under the authority of within the limits of defensive sea areas the above cited Executive Orders on (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 the custody of the Department of De- (4) Kodiak Island Naval Defensive fense, any department or agency of Sea Area. which said department or agency con- (5) Unalaska Island Naval Defensive sists, or any officer of employee of said Sea Area. department or agency (sec. 21 of the In- (6) Wake Island Naval Defensive Sea ternal Security Act of 1950 (50 U.S.C. Area except for entry of foreign flag 797) and Department of Defense Direc- ships and foreign nationals. tive 5200.8 of 20 August 1954 (19 FR (7) The portion of Kaneohe Defensive 5446)); and (4) for knowingly and will- Sea Area lying beyond a 500 yard buffer fully making a false or misleading zone around the perimeter of the statement or representation in any Kaneohe Marine Corps Air Station matter within the jurisdiction of any (Mokapu Peninsula) and eastward department or agency of the United therefrom to Kapoho Point, Oahu. States (18 U.S.C. 1001). (e) Suspension of restrictions on entry into a naval airspace reservation, [28 FR 13778, Dec. 18, 1963, as amended at 35 naval defensive sea area, or naval ad- FR 10008, June 18, 1970; 36 FR 21889, Nov. 17, ministrative area, does not affect the 1971; 41 FR 28957, July 14, 1976] authority of a commanding officer or § 761.4 Special provisions. other appropriate commander to control entry into or passage through any (a) Entry into islands in the Kwaja- base, station, or other installation or lein Atoll under military jurisdiction area, including port or harbor facilities is controlled by the Department of the under Navy control. Army. Inquiries concerning entries into islands under military control in [41 FR 28957, July 14, 1976]

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§ 761.5 Definitions. of this definition, the term ‘‘coast’’ in- (a) Defense area. A naval defensive cludes the coasts of islands, islets, sea area, naval airspace reservation, or rocks, atolls, reefs and other areas of naval administrative area established land permanently above the high water by Executive order of the President. mark. (b) Department of Defense. The De- (j) Trust Territory Registry. Registra- partment of Defense, including the De- tion of a ship or aircraft in accordance partments of the Army, Navy, and Air with the laws of the Trust Territory. (k) Registration of a Force. U.S. Registry. (c) Entry authorization. A document ship or aircraft in accordance with the which authorizes a ship, aircraft, or laws and regulations of the United person to enter a defense area. States. (d) Entry Control Commander. A com- (l) U.S. Armed Forces. Military per- mander empowered to issue entry au- sonnel of the Department of Defense, thorizations for one or more defense the Departments of the Army, Navy, areas (see § 761.9). Air Force, and the United States Coast (e) Excluded person. A person who Guard. does not hold a currently valid entry [28 FR 13778, Dec. 18, 1963, as amended at 35 authorization for the area concerned FR 10009, June 18, 1970; 41 FR 28958, July 14, and who has been notified by an Entry 1976] Control Commander that authority for 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:

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(1) Prior noncompliance with entry blackmail, or sex offenses involving control regulations or failure to ob- minors or perversion. serve terms under which any entry au- (10) Chronic alcoholism or addiction thorization may have been granted; 1 to the use of narcotic drugs without (2) Willfully furnishing false, incom- adequate evidence of rehabilitation; 1 plete, or misleading information in an (11) Illegal presence in the United application for an entry authorization;1 States, its territories or possessions, (3) Advocacy of the overthrow or al- having been finally subject to deporta- teration of the Government of the tion order, or voluntary departure in United States by unconstitutional lieu of deportation order, by the United means; States Immigration and Naturalization (4) Commission of, or attempt or Service; 1 preparation to commit, an act of espio- (12) Being the subject of proceedings nage, sabotage, sedition, or treason, or for deportation or voluntary departure conspiring with or aiding or abetting in lieu of deportation for any reasons another to commit such an act; which have not been determined in the (5) Performing, or attempting to per- applicant’s favor; 1 form, duties, or otherwise acting so as (13) Conviction of larceny of property to serve the interest of another govern- of the United States, willful injury to ment to the detriment of the United or destruction of property of the States; United States, fraudulent enlistment, (6) Deliberate unauthorized disclo- impersonation of a commissioned offi- sure of classified defense information; cer of the United States or any state or (7) Knowing membership with the territory thereof, or any offense involv- specific intent of furthering the aims ing moral turpitude, except offenses, of, or adherence to and active partici- which, in the jurisdiction within which pation in, any foreign or domestic or- the conviction was obtained, are pun- ganization, association, movement, ishable by imprisonment for not more group, or combination of persons (here- than one year or a fine of not more inafter referred to as organizations) than one thousand dollars. 1 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 treated for serious mental or neuro- law for the obtaining of a United logical disorders or for chronic alco- States visa. Naval authorization for holism, without evidence of cure; 1 entry into areas covered by this part (9) Conviction of any of the following will not be issued to foreign nationals offenses under circumstances indic- for purposes, places, or periods of time ative of a criminal tendency poten- in excess of those stipulated in the tially dangerous to the security of a visa. strategic area containing military es- (3) Alien spouses and bona fide de- tablishments; arson, unlawful traf- pendents of U.S. citizen employees of ficking in drugs, murder, kidnaping, the United States may, if otherwise qualified, be granted entry authorization so long as the U.S. citizen sponsor 1 The criteria so marked are applicable or principal remains on duty or resi- only to those applications concerning entry into areas under military cognizance. dent within the defense area. 1 The criteria so marked are applicable (d) Renewals. Entry authorizations only to those applications concerning entry having been granted and utilized may into areas under military cognizance. be extended or renewed upon request at

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the expiration of the period for which (c) Control of violators. No com- the entry was originally authorized or manding officer of a military installa- extended, provided the justification for tion shall permit any ship or aircraft remaining in the area or for making a which has entered the limits of his reentry meets the criteria set forth in command by passing through a defense this part. It shall be the responsibility area without authorization to land, ex- of every applicant to depart the defense cept in emergency, or, if permitted to area for which entry was authorized land, to disembark passengers or cargo upon expiration of the time prescribed except as authorized by the appropriate in the authorization, unless such au- Entry Control Commander. Com- thorization has been extended or re- manding officers will take appropriate newed. Failure to comply herewith will action to apprehend violators who be considered as evidence of violation come within their jurisdiction and re- of this part and may result in denial of quest disposition instructions from the future authorizations. appropriate Entry Control Commander. (d) Trust Territory. An authorization [28 FR 13778, Dec. 18, 1963, as amended at 36 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 U.S. Armed Forces, except as author- within any naval airspace reservation ized in writing by the Chief of Naval of the airspace over other defense Operations, has authority to waive the areas. requirements of this part, and any (b) Excluded persons—(1) Entry prohib- waiver must be in writing and signed ited. Excluded persons, as defined in by an authorized person. § 761.5(e), are prohibited from entering any defense area. In a bona fide emer- [28 FR 13778, Dec. 18, 1963, as amended at 36 gency which requires an excluded per- 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 Subpart C—Entry Authorization of the installation may grant permission to enter or transit subject to such § 761.8 General. restrictions as may be imposed by reg- (a) As indicated in § 761.7(a), certain ulation or which may, in his discretion, persons, ships, and aircraft must be be required. specifically authorized under the provi- (2) Carrying prohibited. Except in a sions of this part to enter defense bona fide emergency and after being areas. authorized by the appropriate local au- (b) When entering or transiting a de- thority, no vessel or aircraft, except fense area each person, ship, or aircraft public vessels and aircraft of the must have a valid authorization or sat- United States, shall enter into or be isfactory evidence thereof. navigated within any defense area while carrying any excluded person, as § 761.9 Entry Control Commanders. defined in this part, as passenger, offi- The following commanders are des- cer or crew member. ignated Entry Control Commanders

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with authority to approve or dis- Chief, U.S. Pacific Fleet, and other in- approve individual entry authoriza- terested commands, shall be informed tions for persons, ships, or aircraft as immediately of the nature of the emer- indicated (Commander Seventeenth gency, and action taken. Coast Guard District has been des- (i) U.S. Coast Guard. The U.S. Coast ignated an Entry Control Commander Guard regulates the movement of ship- by the authority of the Commandant, ping within the Honolulu Harbor under U.S. Coast Guard and Commander, the authority of Executive Orders 10173 Western Area, U.S. Coast Guard); and 10289; such shipping is considered (a) Chief of Naval Operations. Author- to be under U.S. authorized supervision ization for all persons, ships, or air- within the meaning of Executive Order craft to enter all defense areas. 8987. The Commandant, Fourteenth (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.

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(f) [Reserved] he may be empowered to do or for for- (g) Individuals on board any foreign warding the application to the nearest public vessel or aircraft which has been Entry Control Commander authorized granted diplomatic or other official by this part to take action thereon. U.S. Government authorization to Applications received in the United enter an area covered by this part. States and those received indicating (h) Through passengers and bona fide that the applicant has resided in the regularly employed crew members, un- United States for the major portion of less otherwise excluded, on nonpublic ten years immediately prior to date of vessels authorized to enter areas cov- request will normally be forwarded to ered by this part. This does not include the Chief of Naval Operations for ac- an authorization to disembark at a tion. In all cases where the forwarding 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 Commander having jurisdiction over statement including names of principal per- the air facility. sons, firms, or establishments to be visited) (j) U.S. citizen news correspondents 22. Proposed duration of visit: and photographers when properly ac- 23. Estimated date of arrival: credited by the Department of Defense 24. Address to which authorization should be mailed: to enter areas covered by this part except 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 [28 FR 13778, Dec. 18, 1963, as amended at 36 the certification and signature of ap- FR 21890, Nov. 17, 1971] plicant and witness may be utilized. (2) Incomplete forms will be returned § 761.11 Persons: Individual authoriza- for completion. tions. (3) When time is of the essence, emer- (a) Application; filing. Applications for gency applications may be forwarded 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. (4) Any Naval Sea Frontier Com- (iv) Residence for last ten (10) years. mander. (v) Employers and their addresses for (5) Any Naval Fleet or Force Com- last ten (10) years. mander. (vi) Results of Local Agency Check, if (6) Any Naval District Commandant. pertinent. (7) Any Naval Attache. The Com- (vii) Place to be entered and date of mander or Attache with whom the ap- entry. plication is filed is responsible for tak- (viii) Purpose of entry and duration ing such action on the application as of stay.

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(ix) Comments and/or recommenda- (b) U.S. private vessels which are: (1) tions of forwarding officer as appro- Under charter to the Department of priate. Defense (including the Military Sealift (x) A statement that a completed DD Command), or (2) operating under a 398 or appropriate substitute has been contract or charter with the Depart- mailed prior to the sending of the mes- ment of Defense providing for the em- sage. ployment of such vessels, or (3) routed (c) Processing. The Entry Control by a Naval Control of Shipping Office, Commander empowered to issue entry or (4) employed exclusively in support authorizations shall upon receipt of an of and in connection with a Depart- application take the following action: ment of Defense construction, mainte- (1) Initiate or conduct such investiga- nance, or repair contract and whose tion as may be required to establish crews carry individual entry clear- 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. (d) Authorizations. Entry authoriza- (f) Ships operating under a group au- tions will state the purpose for which thorization issued by the Chief of the entry is authorized and such other Naval Operations. information and conditions as are per- (g) Ships in distress, subject to local tinent to the particular authorization. clearances and control by senior officer Authorizations to enter and re-enter present. 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 be issued to U.S. citizens residing § 761.13 Ships: Individual authoriza- abroad and to aliens to enter and re- tions. enter for a specified period of time re- (a) Applications; form; filing. Applica- quired to accomplish the purpose for tions for authorization to navigate which the authorization was issued not ships within the limits of defense areas to exceed one year. shall be filed with the cognizant Entry [28 FR 13778, Dec. 18, 1963, as amended at 41 Control Commander by letter or tele- FR 28958, July 14, 1976] gram including the following information and any additional information § 761.12 Ships: Group authorizations. that may be relative to the proposed Ships or other craft in the following operation: categories, except those ships which (1) Name of ship. have been denied individual authoriza- (2) Place of registry and registry tion or have had a prior authorization number. revoked, may enter the defense areas (3) Name, nationality and address of indicated without individual authoriza- operator. tions: (4) Name, nationality and address of (a) U.S. Public vessels, to enter all owner. defense areas. (5) Gross tonnage of ship.

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(6) Nationality and numbers of offi- § 761.15 Aircraft: Individual authoriza- cers and crew (include crewlist when tions. practicable). (a) Special procedures. In addition to (7) Number of passengers (include list the entry authorization to enter or when practicable). navigate within the defense area con- (8) Last port of call prior to entry cerned, certain special procedures must into area for which clearance is re- be followed by aircraft: quested. (1) If landing at U.S. naval aviation (9) Purpose of visit. facilities, an Aviation Facility License (10) Proposed date of entry and esti- must be obtained, in accordance with mated duration of stay. Secretary of the Navy Instruction (b) Processing. Authorization for sin- 3770.1B, Use of Department of the Navy gle entries or for multiple entries for a aviation facilities by other than United period not to exceed one year may be States Department of Defense aircraft. 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. [41 FR 28958, July 14, 1976] *See ‘‘Note’’ to this paragraph.

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(7) Radio call signs of aircraft and issued as appropriate, to permit the radio frequencies available. ship, aircraft, or person to transit the (8) Whether cameras are to be carried defense area in order to depart from a and whether they will be used. contiguous area. *(9) Whether arms are to be carried. *(10) Whether authorization to land § 761.18 Appeals. as indicated in § 761.15(a) has been ob- (a) Appeals may be filed with the tained. Entry Control Commander who issued NOTE: Information on those items marked with an asterisk (*) need not be reported the denial or revocation. It shall con- when the aircraft will only overfly the areas tain a complete statement of the pur- covered by this part. pose of the proposed entry and a state- (c) Processing. Authorization for indi- ment of reasons why the entry should vidual entries or for multiple entries be authorized, including a showing that for a period not to exceed three months the entry will be consistent with the may be granted by an Entry Control purposes of national defense. 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. [41 FR 28958, July 14, 1976] (c) The superior may act on the appeal and notify the applicant of the de- § 761.16 Notice of action. cision, or he may forward the appeal to All applicants will be kept advised of the next superior and notify the appli- action being taken relative to the proc- cant of this referral. essing of applications. Individuals [28 FR 13778, Dec. 18, 1963, as amended at 41 whose applications cannot be processed FR 28959, July 14, 1976] promptly (usually within ten working days) or whose applications must be § 761.19 Forms. forwarded to another office for processing will be notified of the antici- The following forms shall be used in pated delay and advised of the approxi- connection with the processing of ap- mate time when action may be ex- plications for authorization to enter pected to be taken. Under no cir- defense areas and for revocation of au- cumstances will a notice of disapproval thorizations as indicated: include a statement of the reason (a) Application. Statement of Per- therefor. Copies of all notices will be sonal History (Form DD 398, Stock distributed to commands and Entry Number 0102–004–220) may be obtained Control Commanders concerned. Copies from NAVPUBFORMCEN, Building 26, of all notices of disapproval will be 5801 Tabor Ave., Philadelphia, PA 19120. mailed to the Chief of Naval Oper- (b) Entry authorization. (1) Defense ations concurrently with the mailing Area Entry Authorization to the applicant. (OPNAVForm 4600–2 (Rev. 5–59) may be obtained from Office of the Chief of § 761.17 Revocation. Naval Operations (OP–09B33), Navy De- Entry authorizations will be revoked partment, Washington, DC 20350. only by an Entry Control Commander (2) Letter or message authorization. upon being advised of the discovery of (c) Disapproval of request for entry au- information which would have been thorization. ground for denial of the initial request. Such a revocation will be confirmed in MY DEAR llllll: Your application of lll has been reviewed and we regret to ad- writing to the holder of an entry au- vise you that the requested authorization for thorization. No reason for revocation llllllll to enter llllllll is of the entry authorization will be not granted as the entry at this time for the given. When an entry authorization is purpose stated is not considered to be in the revoked, a one-way permit will be interest of national defense.

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The application may be resubmitted again eras or other devices for taking pic- in six months at which time it will be recon- tures, or film, plate or other device sidered in the light of then existing cir- upon or out of which a photographic cumstances. If you desire to appeal this decision, you imprint, positive or negative, can be may do so by submitting a letter to this of- made, the possession of which is pro- fice setting forth in full why you consider hibited by Executive Order 9275, from that the granting of the application would be any person, prior to the time any ves- in the interest of national defense and any sel enters any defensive sea area or other information that you believe will be of value of this person considering the appeal. upon the boarding by any person of any Your letter will be forwarded to the appro- vessel while within a defensive sea priate authority for review and you will be area, and to retain custody thereof advised in due course of his determination. until such vessel is outside the defen- Sincerely yours, sive sea area or the person is about to disembark. (d) Revocation of entry authorization. (3) There shall be prominently dis- MY DEAR llllll: This is to notify you played on board all vessels, except pub- that entry authorization to enter lic war vessels of the United States llllllll granted by (issuing activity) manned by personnel in the naval serv- on llll is hereby revoked effective this date. ice, a printed notice containing the regulations prescribed in Executive Sincerely yours, Order 9275. [41 FR 28959, July 14, 1976] (4) Any person violating section 1 of Executive Order 9275 (restated in para- Subpart D—Additional Instructions graph (a)(1) of this section) shall be liable to prosecution as provided in sec- § 761.20 Additional regulations governing persons and vessels in Naval tion 44 of the Criminal Code as amend- Defensive Sea Areas. ed and reenacted in 18 U.S.C. 2152. (a) By virtue of the authority vested (b) The regulations stated in para- in the President by section 44 of the graph (a) of this section are not a limi- United States Criminal Code, as tation on prosecution under any other amended and reenacted in 18 U.S.C. statute that may have been violated by 2152, the President has prescribed the acts or omissions prohibited by Execu- following additional regulations in Ex- tive Order 9275. ecutive Order 9275 of November 23, 1942 (7 FR 9767; 1943 Cum. Supp. p. 1227) to PART 762 [RESERVED] govern persons and vessels within the limits of defensive sea areas thereto- PART 763—RULES GOVERNING fore or thereafter established. (1) No person shall have in his posses- PUBLIC ACCESS sion within the limits of any defensive sea area, any camera or other device Subpart A—Entry Regulations for for taking pictures, or any film, plate Kaho’olawe Island, Hawaii or other device upon or out of which a Sec. photographic imprint, negative or posi- 763.1 Purpose. tive, can be made, except in the per- 763.2 Definition. formance of official duty or employ- 763.3 Background. ment in connection with the national 763.4 Entry restrictions. defense, or when authorized pursuant 763.5 Entry procedures. to the provisions of the Act approved 763.6 Violations. June 25, 1942 (Pub. L. 627, 77th Con- gress), as amended (50 U.S.C. App. 781– AUTHORITY: 50 U.S.C. 797; DOD Dir. 5200.8 of 785), and the regulations promulgated August 20, 1954; 5 U.S.C. 301; 10 U.S.C. 6011, 32 CFR 700.702; 32 CFR 700.714; E.O. No. 10436, 3 thereunder (7 FR 7307; 32 CFR 765.19(b)). CFR 1949–1953 Comp. p. 930, (1958). (2) It shall be the duty of the master or officer in charge of any vessel to SOURCE: 47 FR 27553, June 25, 1982, unless take custody of and safeguard all cam- otherwise noted.

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Subpart A—Entry Regulations for tion applies to all waters described in Kaho’olawe Island, Hawaii 33 CFR 204.223(4). [47 FR 27553, June 25, 1982, as amended at 52 § 763.1 Purpose. FR 20074, May 29, 1987]

The purpose of this subpart is to pro- § 763.5 Entry procedures. mulgate regulations for entry to Kaho’olawe Island, Hawaii, and its ad- (a) It is the policy of the Commander Naval Base to authorize, in accordance jacent waters. with the spirit of the American Indian § 763.2 Definition. Religious Freedom Act (1978), reasonable access to Kaho’olawe Island dur- For the purpose of this subpart, ing periods when it is not used for mili- Kaho’olawe Island includes that por- tary training. However, because there tion reserved for naval purposes by Ex- are bombs and other explosives on and ecutive Order No. 10436 of February 20, under the surface and in the waters of 1953. the island, and because there are significant archaeological resources § 763.3 Background. thereon (in 1981, the island was placed (a) Kaho’olawe Island is used by the on the National Register of Historical armed forces of the United States as a Places as an Archaeological District), Navy representatives accompany each training area including bombing and island visitation to safeguard both the gunnery training ranges under author- vistitor(s) and the island’s archae- ity granted by Executive Order No. ological resources. In this regard, in 10436. Training operations frequently order to ensure the safety of visitors to involve the use of live ordnance, cre- the island and its archaeological re- ating an obvious danger to persons on sources, persons and organizations or near the island. Moreover, a large wishing access to Kaho’olawe Island amount of unexploded ordnance is must comply with the following appro- present on Kaho’olawe Island and in priate procedures: Civilians (except au- adjacent waters. thorized U.S. and State representa- (b) Individuals who enter the island tives) must: of Kaho’olawe without authority ex- (1) Request, in writing, access au- pose themselves to extremely haz- thorization from Commander Naval ardous conditions. In addition, the Base (Code 01K), Pearl Harbor, Hawaii presence of unauthorized persons on 96860, at least 15 days prior to the ac- Kaho’olawe Island or in adjacent wa- cess requested, providing therein con- ters is likely to interfere with the use firmed access plans (including the of the island for military training. Ac- exact number of visitors, time, and lo- cordingly, it is necessary to prohibit cation of access, designation of person in charge, and any other pertinent in- entry to Kaho’olawe Island except formation); and under the controlled circumstances set (2) Submit to Commander Naval Base forth in this subpart. (at the aforementioned address) properly endorsed Standard Liability Re- § 763.4 Entry restrictions. lease Form (obtainable from Com- (a) Entry by any person upon mander Naval Base), for each access Kaho’olawe Island for any purpose is participant, at least five (5) days prior prohibited without advance authoriza- to the requested access. tion from Commander Naval Base. This (b) In evaluating each request, the prohibition applies to all areas of factors just enumerated will be Kaho’olawe Island reserved for naval weighed against training commit- purposes by Executive Order 10436. ments, safety requirements, specical (b) Entry by any person into the re- projects, and the amount and cost of stricted waters adjacent to Kaho’olawe military supervision necessitated by a Island for any purpose is prohibited granting of the request. Requests for without advance authorization from entry will be considered on an indi- Commander Naval Base. This prohibi- vidual basis. If a request is granted, the permission to enter Kaho’olawe Island

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authorizes one visit only, and shall not will not be allowed. Proposed camp- be construed as authorization for more sites for overnight hikes shall be simi- than one entry unless the authoriza- larly provided to, and approved by, the tion itself specifically states otherwise. Special Assistant for Kaho’olawe or his Moreover, entry pursuant to advance designated representative. consent, which is not in accordance (7) No person shall move about the is- with the terms and conditions per- land after sunset unless a bonafide mitted by Commander Naval Base, emergency situation arises. The senior shall be deemed a violation of this sub- Naval officer present shall be imme- part. diately notified in case of such emer- (c) For safety reasons, it is not Com- gency. mander Naval Base policy to permit (8) No person shall commit any of- children below the age of 15 access to fense proscribed by either Federal law Kaho’olawe Island. or the State of Hawaii Penal Code, as (d) The following safety regulations incorporated under the Federal Assimi- are applicable to visitors to lative Crimes Act, while on the island Kaho’olawe Island: of Kaho’olawe. Any individual who vio- (1) All visitors to the island are relates any provisions of these penal quired to execute and submit a waiver codes may be prosecuted by the Fed- of government liability form to a des- eral Government and/or barred from ignated Navy representative prior to any future access to Kaho’olawe. arrival at the island. (9) No person shall deface, alter, re- (2) Visitors to the island will be es- move, spoil, or destroy any archeo- corted by Navy designated Explosive logical object, feature, or site on the is- Ordnance Disposal (EOD) technicians land. to ensure that they stay on cleared (10) Children shall remain with their paths, avoid impact areas, and do not parents at all times while on the is- touch high explosives. For visitor safe- land. ty, the directions of the military es- (11) Visitors are responsible for re- corts must be followed. moving their own trash from the is- (3) No person will interfere with any land. EOD escort in the performance of his (12) Individuals failing to abide by duties. these safety guidelines will be pre- (4) Any actual or suspected ordnance cluded from future visitations. found by a visitor shall be reported to the Special Assistant for Kaho’olawe as [47 FR 27553, June 25, 1982, as amended at 52 FR 20074, May 29, 1987; 52 FR 45455, Nov. 30, soon as possible. If he is not in the vi- 1987] cinity, a description and location of the ordnance should be provided to the § 763.6 Violations. nearest EOD technician. Everyone, (a) Any person who violates this sub- other than EOD personnel, shall re- part is subject to prosecution under 18 main clear of any ordnance found. U.S.C. 1382, which provides in relevant (5) Only the qualified EOD techni- part: cians shall touch, examine, remove, attempt to remove, handle either di- Whoever * * * goes upon any * * * naval rectly or indirectly, or detonate any * * * reservation * * * for any purpose pro- ordnance, whether found on the sur- hibited by law or lawful regulation * * * face, beneath the surface or in the wa- shall be fined not more than $500 or impris- ters surrounding Kaho’olawe. oned not more than six months, or both. (6) Any proposed hike and procession (b) Additionally, persons who violate route shall be provided to the Special this Subpart are subject to prosecution Assistant for Kaho’olawe (or his des- under the Internal Security Act of 1950 ignated representative) for approval (50 U.S.C. 797), violations of which may and escort coordination at least twen- result in a maximum penalty of impris- ty-four hours in advance of the planned onment for one year, or a fine of $5,000 event. Deviation from approved routes 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. 765.14 Unofficial use of the seal, emblem, resentatives (except salaried officers or names, or initials of the Marine Corps. employees of the Federal Government, 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, 80 Stat. 379; 5 U.S.C. 301, 10 U.S.C. 133, 956, military control will be entitled to a 5031, 6011, 7881; DOD 7000.14–R, Financial payment of Management Regulation, Vol. 10. (i) $50 for the apprehension and detention until military authorities as- §§ 765.1–765.5 [Reserved] sume control, or (ii) $75 for the apprehension and de- § 765.6 Regulations for Pearl Harbor, livery to military control. Hawaii. Payment of reward will be made to the The Commander, U.S. Naval Base, person or agency representative actu- Pearl Harbor, Hawaii, is responsible for ally making the arrest and the turn- prescribing and enforcing such rules over or delivery to military control. If and regulations as may be necessary two or more persons or agencies join in for insuring security and for governing performing these services, payment the navigation, movements, and an- may be made jointly or severally but chorage of vessels in the waters of the total payment or payments will Pearl Harbor and in the entrance chan- not exceed $50 or $75 as applicable. Pay- nel thereto. 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 SF 1034 or who commits the offense of absence NAVCOMPT Form 2277 supported by a without leave. Cf. article 86 of the Uni- copy of DD Form 553 or other form or form Code of Military Justice (10 notification that an individual is ab- U.S.C. 886). sent and that his return to military (a) Payment of rewards—(1) Authority. control is desired, and a statement When authorized by military officials signed by the claimant specifying that of the Armed Forces, any civil officer he apprehended (or accepted voluntary having authority to arrest offenders surrender) 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 SF 1034 or sion of the absentee or deserter. NAVCOMPT Form 2277 supported by an (b) Reimbursement for actual expenses— itemized statement in triplicate signed (1) Authority. When a reward has not by the claimant and approved by the been offered or when conditions for commanding 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 established by the thorities. Reimbursement will be ef- Joint Travel Regulation for travel by fected on SF 1034 or NAVCOMPT Form privately owned vehicle, for a round 2277 supported by an itemized state- trip from either the place of apprehen- ment signed by the claimant and ap- sion or civil police headquarters to proved by the officer who requested the place of return to military control; confinement. (ii) Meals furnished the service member for which the cost was assumed by (d) Nothing said in this section shall the apprehending person or agency rep- be construed to restrict or exclude au- resentative; thority to apprehend an offender in ac- (iii) Telephone or telegraph commu- cordance with law. nication costs; (Sec. 807, 70A Stat. 39; 10 U.S.C. 807. Interpret (iv) Damages to property of the ap- or apply secs. 808, 7214, 70A Stat. 40, 445; 10 prehending person or agency if caused U.S.C. 808, 7214) directly by the service member during the apprehension, detention, or deliv- [25 FR 1075, Feb. 6, 1960, as amended at 51 FR 22283, June 19, 1986; 65 FR 53172, Sept. 1, 2000] ery; (v) Such other reasonable and nec- § 765.13 Insignia to be worn on uni- essary expenses incurred in the actual form by persons not in the service. apprehension, detention, or delivery as may be considered justifiable and reim- (a) Under title 10 U.S.C., section 773, bursable by the commanding officer. members of military societies com- Reimbursement will not be made for: posed of persons discharged honorably (a) Lodging at nonmilitary confine- or under honorable conditions from the ment facilities; United States Army, Navy, Air Force (b) Transportation performed by the or Marine Corps, regular or reserve, use of official Federal, State, county, may, when authorized by regulations or municipal vehicles; prescribed by the President, wear the (c) Personal services of the appre- uniform duly prescribed by such soci- hending, detaining, or delivering per- eties to be worn by the members there- son or agency. of.

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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 military 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 subordinate 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 promotion, 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, Administration (i) Imply any official or unofficial Resource Management (ARDE). Prior connection between the Marine Corps to granting approval for commercial and the user; usage of the Marine Corps insignia, the (ii) Tend to create the impression CMC (ARDE) shall forward such re- that the Marine Corps or the United quests to the Head, Marine Corps Ex- States is in any way responsible for change Service Branch, Facilities and any financial or legal obligation of the Services Division, Installations and Lo- user; gistics Department (CMC) (LFE)) and (iii) Give the impression that the Ma- to the Counsel for the Commandant rine Corps selectively benefits the par- (CMC (CL)) for comment and concur- ticular manufacturer, commercial enti- rence. All other requests shall be rout- ty, or other user, as in displaying the ed to the Director, Judge Advocate Di- Marine Corps emblem, names, or ini- vision (CMC (JAR)) for comment and tials on musical instruments, weapons, concurrence. 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 (ARDE). 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 [51 FR 45467, Dec. 19, 1986, as amended at 65 grant written permission to use the FR 62619, Oct. 19, 2000]

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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, execution 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 property 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 governmental 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 believes 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 charter 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. (2) For aircraft weighing 12,500 of this regulation will have to pay the pounds but less than 40,000 pounds: fee prescribed in § 766.11(b). In those $250. cases where an unauthorized landing is (3) For aircraft weighing 40,000 made at a facility within a Naval De- pounds but less than 100,000 pounds: fense Area, proclaimed as such by Ex- $500. ecutive order of the President, civil (4) For aircraft weighing above aircraft may be impounded and the op- 100,000 pounds: $600. erator prosecuted as indicated in (c) Normal landing fee. The normal OPNAVINST 5500.11C of November 12, landing fee is based on the aircraft 1963. In any event, before the aircraft is maximum authorized gross takeoff authorized to depart, the commanding weight, to the nearest 1,000 pounds. The officer of the facility will: maximum gross takeoff weight may be (a) Inform the aircraft operator of determined either from item 7F of the provisions of this part and the OP OPNAV Form 3770/1 or from the ‘‘Air- NAVINST 5500.11C of November 12, 1963, plane Flight Manual’’ carried aboard if applicable. each aircraft. If the weight cannot be (b) Require the aircraft operator (or determined, it should be estimated. owner), before takeoff, to pay all fees and charges and to comply with the CHARGE PER LANDING following procedure: (1) Execute OPNAV Form 3770/1, ex- Inside CONUS—0.20/1,000 pounds or any portion 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 (3) When it appears that the violation each 24-hour period or fraction thereof, may have been deliberate, or is a re- with a minimum charge of $1.50 per air- peated violation, departure authoriza- craft. tion must be obtained from the Chief of (2) Inside a hangar. Charges begin as Naval Operations. soon as the aircraft is placed inside the 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 criteria promotes consistency among fed- JURISDICATION OF THE DEPART- eral agencies and meets DON’s respon- MENT OF THE NAVY sibilities under the NHPA while allowing 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 research. 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 location 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 authorized 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 applications 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 review. 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 under the permit will be promptly re- (e) Antiquities Act of 1906, Public ported and appropriate action will be Law 59–209, 34 Stat. 225 (codified at 16 taken. Permitted activities will be U.S.C. 431 et seq. (1999)). evaluated and the findings will be used (f) Executive Order 11593, 36 FR 8291, to evaluate future applications. 3 CFR, 1971–1975 Comp., p. 559 (Protec- tion and Enhancement of the Cultural § 767.11 Violations of permit condi- Environment). tions. (g) Department of Defense Instruc- The Director of Naval History, the tion 4140.21M (DoDI 4120.21M, August Underwater Archeologist for DON, or 1998). Subject: Defense Disposal Man- his/her designee may, amend, suspend, ual. or revoke a permit in whole or in part, (h) Secretary of the Navy Instruction temporarily or indefinitely, if in his/ 4000.35 (SECNAVINST 4000.35, 17 Au- her view the permit holder has acted in gust 1992). Subject: Department of the violation of the terms of the permit or Navy Cultural Resources Program. of other applicable regulations, or for (i) Naval Historical Center Instruc- other good cause shown. Any such action 5510.4. (NAVHISTCENINST 5510.4, tion will be communicated in writing to the permit holder and will set forth 14 December 1995). Subject: Disclosure the reason for the action taken. The of Information from the Naval Ship- permit holder may appeal the action to wreck Database. the appeal authority listed in § 767.5. PARTS 768–769 [RESERVED] § 767.12 References for submission of permit application to conduct archeological research. PART 770—RULES LIMITING PUBLIC (a) National Historic Preservation ACCESS TO PARTICULAR INSTAL- Act of 1966, as amended (NHPA), 16 LATIONS U.S.C. 470 et seq. (1999), and Protection of Historic Properties, 36 CFR part 800. Subpart A—Hunting and Fishing at Marine These regulations govern the Section Corps Base, Quantico, Virginia 106 Review Process established by the Sec. NHPA. 770.1 Purpose. (b) Secretary of the Interior’s Stand- 770.2 Licenses. ards and Guidelines for Archeology and 770.3 Fishing regulations. Historic Preservation published on 770.4 Hunting regulations. September 29, 1983 (48 FR 44716). These 770.5 Safety regulations. guidelines establish standards for the 770.6 Restrictions. preservation planning process with 770.7 Violations and environmental regula- guidelines on implementation. tions. (c) Archeological Resources Protec- 770.8 Reports. tion Act of 1979, as amended (ARPA), 16 770.9 Miscellaneous. U.S.C. 470aa-mm, and the Uniform Reg-

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Subpart B—Base Entry Regulations for AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 6011; 32 Naval Submarine Base, Bangor, CFR 700.702; 32 CFR 700.714, unless otherwise Silverdale, Washington noted. 770.15 Purpose. Subpart A—Hunting and Fishing at 770.16 Definition. 770.17 Background. Marine Corps Base, Quantico, 770.18 Entry restrictions. Virginia 770.19 Entry procedures. 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 § 770.1 Purpose. 770.25 Purpose. This subpart provides regulations 770.26 Definitions. and related information governing 770.27 Background. 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- (a) Every person who hunts or fishes manders authorized to grant access on Marine Corps Base, Quantico, VA, under these regulations. 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- ginia. 770.35 Purpose. (b) In addition, hunting and fishing 770.36 Definitions. privilege cards, issued by the authori- 770.37 Background. 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, inclusive. Subpart E—Base Entry Regulations for (1) The privilege card may be pur- Naval Submarine Base New London, chased from the Natural Resources and Groton, Connecticut Environmental Affairs Branch, Build- 770.41 Purpose. ing 5–9, Marine Corps Base, Quantico, 770.42 Background. 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. hunting and fishing licenses. 770.46 Violations. (c) All hunters must obtain a Base hunting permit, and a parking permit, Subpart F—Base Entry Regulations for if applicable, from the Game Check Puget Sound Naval Shipyard, Brem- Station, Building 5–9 Station (located erton, Washington at the intersection of Russell Road and 770.47 Purpose. MCB–1) for each day of hunting. The 770.48 Definition. hunting permit must be carried by the 770.49 Background. hunter and the parking permit must be 770.50 Entry restrictions. displayed on the left dashboard of 770.51 Entry procedures. 770.52 Violations. parked vehicles. The hunting and parking permits must be returned within Subpart G—Entry Regulations for Ports- one hour after either sunset or the mouth Naval Shipyard, Portsmouth, hour hunting is secured on holidays or New Hampshire during special season. (d) Eligibility for a Base hunting per- 770.53 Purpose. mit is predicated on: 770.54 Background. 770.55 Responsibility. (1) Possession of required Federal and 770.56 Entry restrictions. State licenses for the game to be hunt- 770.57 Entry procedures. ed including Marine Corps Base hunt- 770.58 Violations. ing privilege card;

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(2) Attendance at a safety lecture § 770.4 Hunting regulations. given daily except Sunday during the All persons possessing the proper hunting season given at the Game State, Federal and Base licenses and Check Station. The lectures commence permits are permitted to hunt in the at the times posted in the Annual areas designated daily by the Annual Hunting Bulletin and are posted on all Hunting Bulletin on Marine Corps base bulletin boards; Base, Quantico, VA, on any authorized (3) Understanding of Federal, State hunting day. In addition, a minimum and Base hunting regulations; of fifteen percent of the daily hunting (4) And, if civilian, an executed re- spaces will be reserved to civilians on a lease of U.S. Government responsi- first come, first served basis until 0600 bility in case of accident or injury. on each hunting day, at which time, [41 FR 22345, June 3, 1976, as amended at 48 the Game Check Station may fill va- FR 23205, May 24, 1983; 65 FR 53591, Sept. 5, cancies from any authorized persons 2000] waiting to hunt.

§ 770.3 Fishing regulations. [65 FR 53591, Sept. 5, 2000] (a) All persons possessing the proper § 770.5 Safety regulations. state license and Base permit are per- (a) Hunting is not permitted within mitted to fish in the areas designated 200 yards of the following: Ammunition by the Annual Fishing Regulations on dumps, built-up areas, rifle or pistol Marine Corps Base, Quantico, VA, on ranges, dwelling or other occupied any authorized fishing day. A Base structures, and areas designated by the Fishing Privilege Card is required for Annual Hunting Bulletin as recreation all persons aged 16 to 65. areas. (b) Fishing is permitted on all waters (b) From the end of the special arch- within the boundaries of Marine Corps ery season until the end of the regular Base, Quantico, VA, unless otherwise firearms winter hunting season, except posted, under the conditions and re- for duck hunters in approved blinds, strictions and during the periods pro- hunters will wear an outer garment vided by Marine Corps Base, Quantico, with at least two square foot of blaze VA. Information regarding specific reg- orange visible both front and back ulations for each fishing area must be above the waist and a blaze orange cap obtained from the Natural Resources while hunting, or while in the woods and Environmental Affairs Branch, for any reason, during the hours that Building 5–9 prior to use of Base fishing hunting is authorized. Any person trav- facilities. eling on foot in or adjacent to an area (c) In addition to the requirements of open for hunting will comply with this the Laws of Virginia, the following ad- requirement. ditional prohibitions and requirements (c) Weapons will be unloaded while are in effect at Marine Corps Base, being transported in vehicles, and will Quantico, VA. be left in vehicles by personnel check- (1) No trout lines are permitted in ing in or out at the Game Check Sta- Marine Corps Base waters; tion. Weapons will not be discharged (2) No Large Mouth Bass will be from vehicles, or within 200 yards of taken, creeled or possessed in a slot hard surfaced roads. limit of 12–15 inches in length. All (d) Certain hunting areas contain nu- Large Mouth Bass within this slot will merous unexploded munitions (duds) be immediately returned to the water; which are dangerous and must not be (3) No Striped Bass will be taken, removed or disturbed. Hunters should creeled or possessed under the size of mark such duds with stakes or other twenty (20) inches in length. All means and report their location to the Striped Bass under this size will be im- Game Warden. mediately returned to the water. (e) Hunters must stay in their assigned areas when hunting. [41 FR 22345, June 3, 1976, as amended at 48 FR 23205, May 24, 1983; 65 FR 53591, Sept. 5, [41 FR 22345, June 3, 1976, as amended at 65 2000] FR 53592, Sept. 5, 2000]

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§ 770.6 Restrictions. § 770.7 Violations and environmental regulations. (a) There will be no hunting on Christmas Eve, Christmas Day, New Violations of hunting regulations, Years Day, or after 1200 on Thanks- fishing regulations, safety regulations, giving Day. or principles of good sportsmanship are (b) Hunters under 18 years of age subject to administrative restriction of hunting or fishing privileges and pos- must be accompanied by an adult (21 sible judicial proceedings in State or years of age or older) while hunting or Federal courts. in a hunting area. The adult is limited (a) The Marine Corps Base Game to a maximum of two underage hunt- Wardens are Federal Game Wardens. ers, and must stay within sight and They have authority to issue summons voice contact and no more than 100 to appear in Federal court for game yards away from the underage hunters. violations. (c) The following practices or actions (b) Offenders in violation of a Federal are expressly forbidden: Use of rifles, or State hunting or fishing laws will be except muzzleloaders of .40 caliber or referred to a Federal court. larger as specified below, revolvers or (c) Offenders in violation of a Fed- pistols; use of shotguns larger than 10 eral, State or Base hunting or fishing gauge or crossbows (this prohibition law or regulation will receive the fol- extends to carrying such weapons on lowing administrative actions. the person or in a vehicle while hunt- (1) The Base Game Warden shall have ing), use of buckshot to hunt any the authority to temporarily suspend game; use of a light, attached to a ve- hunting and fishing privileges. hicle or otherwise, for the purpose of (2) Suspensions of hunting and fish- spotting game; use of dogs for hunting ing privileges will be outlined in the or tracking deer; training deer dogs on Annual Fish and Wildlife Procedures the Reservation; training or running Manual. 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 wildlife. Those per- entering the base. sonnel who are authorized to hunt on (e) Serious hunting and fishing of- Base, desiring to train or exercise dogs fenses include, but are not limited to: other than deer dogs between 2 Sep- spotlighting, false statement on a license, hunting under the influence, em- tember and 28 February, may do so by ployment of a light in an area that obtaining Walking Pass to enter train- deer frequent, and taking game or fish ing areas at the Range Control Office. during closed seasons. This Walking Pass is not permission to hunt, and carrying weapons under [41 FR 22345, June 3, 1976, as amended at 65 these conditions is prohibited. FR 53592, Sept. 5, 2000] (d) Hunting will not commence be- § 770.8 Reports. fore one half hour before sunrise, and will end not later than sunset. The Upon killing a deer or turkey, a hours of sunrise and sunset are posted hunter must attach the appropriate tab daily at the Game Checking Station. from his big game license to the car- cass before moving the game from the (e) Weapons will not be loaded out- place of kill. The game will then be side of hunting hours. taken to the Game Checking Station (f) There will be no use of a muzzle- where the tab will be exchanged for an loader or slug shotgun after obtaining official game tag. All other game, not the daily or yearly game bag limits. requiring a tag, killed on the Reserva- (g) There will be no possession or use tion will be immediately reported to of drugs or alcohol while checked out the Game Warden when checking out to hunt. at the end of a hunt. [41 FR 22345, June 3, 1976, as amended at 48 [41 FR 22345, June 3, 1976, as amended at 48 FR 23205, May 24, 1983; 65 FR 53592, Sept. 5, FR 23206, May 24, 1983; 65 FR 53592, Sept. 5, 2000] 2000]

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§ 770.9 Miscellaneous. to restrict entry upon SUBASE Bangor to authorized persons only. Refer to the Annual Fishing and Hunting Bulletins that will cover any § 770.18 Entry restrictions. annual miscellaneous changes. Except for military personnel and ci- [65 FR 53592, Sept. 5, 2000] vilian employees of the United States in the performance of their official du- Subpart B—Base Entry Regulations ties, entry upon Naval Submarine for Naval Submarine Base, Base, Bangor, or remaining thereon by Bangor, Silverdale, Wash- any person whatsoever for any purpose ington without the advance consent of the Commanding Officer, SUBASE Bangor or his authorized representative is pro- AUTHORITY: 50 U.S.C. 797; DoDDir. 5200.8 of hibited. See, 18 U.S.C. 1382; the Internal April 25, 1991; 5 U.S.C. 301; 10 U.S.C. 6011; 32 CFR 700.702; 32 CFR 700.714. Security Act of 1950, Section 21 (50 U.S.C. 797); Department of Defense Di- SOURCE: 44 FR 32368, June 6, 1979, unless rective 5200.8 of 25 April 1991; Secretary otherwise noted. of the Navy Instruction 5511.36A of 21 July 1992. § 770.15 Purpose. The purpose of this subpart is to pro- [44 FR 32368, June 6, 1979, as amended at 65 FR 53592, Sept. 5, 2000] mulgate regulations governing entry upon Naval Submarine Base (SUBASE), § 770.19 Entry procedures. Bangor. (a) Any person or group of persons § 770.16 Definition. desiring the advance consent of the Commanding Officer, SUBASE Bangor For the purpose of this subpart, SUBASE Bangor shall include that or his authorized representative shall, area of land in Kitsap and Jefferson in writing, submit a request to the Counties, State of Washington which Commanding Officer, Naval Submarine has been set aside for use of the Fed- Base, Bangor, 1100 Hunley Road, eral Government by an Act of the legis- Silverdale, WA 98315. lature of the State of Washington, ap- (b) Each request for entry will be proved March 15, 1939 (Session laws of considered on an individual basis 1939, chapter 126). weighing the operational, security, and safety requirements of SUBASE Ban- § 770.17 Background. gor with the purpose, size of party, duration 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 [44 FR 32368, June 6, 1979, as amended at 65 are located at SUBASE Bangor. It is FR 53592, Sept. 5, 2000] vital to national defense that the operation and use of SUBASE Bangor be § 770.20 Violations. continued without undue and unneces- (a) Any person entering or remaining sary interruption. Many areas of on SUBASE Bangor, without the con- SUBASE Bangor are of an industrial sent of the Commanding Officer, nature, including construction sites, SUBASE Bangor or his authorized rep- where inherently dangerous conditions resentative, shall be subject to the pen- exist. alties prescribed by 18 U.S.C. 1382, (b) For prevention of the interruption which provides in pertinent part: of the stated use of the base by the presence of any unauthorized person Whoever, within the jurisdiction of the within the boundaries of SUBASE Ban- United States, goes upon any military, naval * * * reservation, post, fort, arsenal, yard, gor, and prevention of injury to any station, or installation, for any purpose pro- such person as a consequence of the hibited by law or lawful regulation * * * dangerous conditions which exist, as shall be fined not more than $5,000 or impris- well as for other reasons, it is essential oned not more than six months or both.

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(b) Moreover, any person who will- are not considered to be a part of naval fully violates this subpart is subject to installations. Rules for entry onto the a fine not to exceed $5,000 or imprison- outleased areas are made by the les- ment for not more than one (1) year or sees, except in the case of Waipio Pe- both as provided in 50 U.S.C. 797. ninsula where the lessee (Oahu Sugar Company) is not authorized to allow [44 FR 32368, June 6, 1979, as amended at 65 FR 53592, Sept. 5, 2000] anyone to enter Waipio Peninsula for any purpose not connected with sugar Subpart C—Base Entry Regulations cane production. for Naval Installations in the § 770.27 Background. State of Hawaii (a) Naval installations in Hawaii constitute 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 exercised 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 contains 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 interests. 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. has been outleased for agricultural pur- Therefore, entry onto a command or poses. For the purpose of this Subpart, into part of a command may be con- outleased areas which are not within trolled by the commander through the fenced portions of naval installations imposition of such restrictions as may

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be required by attendant cir- onment for one year, or both. See 50 cumstances. Within the State of Ha- U.S.C. 797. waii, entry into a naval installation is not permitted without the permission § 770.31 List of major naval installa- of the responsible commander. tions in the State of Hawaii and cognizant commanders authorized § 770.29 Entry procedures. to grant access under these regulations. (a) Operational, security, and safety 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 permit visiting by members of the public. Commander, Naval Base, Pearl Harbor, HI (b) Any person or group desiring to 96860. 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 installation well enough in advance to Commanding Officer, Naval Western Ocean- ography Center, Box 113, Pearl Harbor, HI allow a reasonable time for reply by 96860. mail. Mailing addresses for commanders of major installations covered (3) Naval Air Station, Barbers Point. by this subpart are listed in § 770.31. Contact: 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 deemed the equivalent of obtaining the (4) Naval Communication Area Mas- advance consent of the commander for ter Station, Eastern Pacific, Wahiawa. entrance upon the installation for the Contact: purpose of this subpart. Authorization Commanding Officer, Naval Communication to enter one naval installation or a Area Master Station, Eastern Pacific, portion of one installation does not Wahiawa, HI 96786. necessarily include the authorization to enter any other naval installation or (5) Naval Magazine (Lualualei, all portions of an installation. Waikele, and West Loch). Contact:

§ 770.30 Violations. Commanding Officer, Naval Magazine, Lualualei, HI 96792. (a) Any person entering or remaining on a naval installation in the State of (6) Naval Radio Transmitting Facil- Hawaii, without consent of the comity, Lualualei. Contact: mander or his authorized representa- Commanding Officer, Naval Base, Pearl Har- tive, shall be subject to the penalties of bor, HI 96860. a fine of not more than $500 or imprisonment for not more than six months, (7) Naval and Marine Corps Reserve or both. See 18 U.S.C. 1382. Training Center, Honolulu. Contact: (b) Moreover, any person who will- Commanding Officer, Naval and Marine fully violates this regulation is subject Corps Reserve Training Center, Honolulu, to a fine not to exceed $5,000 or impris- 530 Peltier Avenue, Honolulu, HI 96818.

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(8) Military Sealift Command Office. Commander Naval Base, Pearl Harbor, HI Contact: 96860. Also see 32 CFR Part 763. Commander, Naval Base, Pearl Harbor, HI (2) Kaula. Contact: 96860. Commander Naval Base, Pearl Harbor, HI (9) Mauna Kapu (Pacific Missile 96860. Range Facility). Contact: [44 FR 76279, Dec. 26, 1979, as amended at 52 Commanding Officer, Pacific Missile Range FR 20074, May 29, 1987] Facility, Hawaiian Area, Barking Sands, Kekaha, Kauai, HI 96752. Subpart D—Entry Regulations for (10) Kunia Facility; FORACS III Naval Installations and Prop- Sites; Degaussing Station, Waipio Pe- erty in Puerto Rico ninsula; Damon Tract (Remanant) Opana Communciations Site. Contact: SOURCE: 46 FR 22756, Apr. 21, 1981, unless Commander, Naval Base, Pearl Harbor, HIotherwise noted. 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: Commander, Naval Base, Pearl Harbor, HI§ 770.36 Definitions. 96860. For purposes of these regulations, (12) Pump Stations (Halawa, Waiawa, U.S. Naval installations and properties Red Hill, and Barbers Point). Contact: in Puerto Rico include, but are not limited to, the U.S. Naval Station, Commander, Naval Base, Pearl Harbor, HIRoosevelt Roads (including the Vieques 96860. Island Eastern Annexes, consisting of (13) Halawa Water Storage Area; Bar- Camp Garcia, the Eastern Maneuver bers Point, Independent Water Supply Area, and the Inner Range); the Naval Reservoir Site; Sewage Treatment Ammunition Facility, Vieques Island; Plant; Fort Kam (tri-service); Utility and the Naval Security Group Activity, Corridors, Lynch Park (Ohana Nui). Sabana Seca. Contact: § 770.37 Background. Commander, Naval Base, Pearl Harbor, HI 96860. In accordance with 32 CFR 765.4, 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: Commander, Naval Base, Pearl Harbor, HI§ 770.38 Entry restrictions. 96860. Except for duly authorized military (b) On Kauai. personnel and civilian employees, in- (1) Pacific Missile Range Facility, cluding contract employees, of the Barking Sands, Kekaha. United States in the performance of 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 (c) Other areas. the advance consent of the Com- (1) Kaho’olawe Island. Contact: manding Officer of the installation or

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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 Subpart E—Base Entry Regulations Commanding Officer of the Naval infor Naval Submarine Base stallation or property, or an authorized New London, Groton, Con- representative of that Commanding Of- ficer, shall present themselves at an necticut authorized entry gate at the installation or property concerned or, in the AUTHORITY: 50 U.S.C. 797; DoD Directive alternative, submit a request in writ- 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 CFR 700.702; 32 CFR 700.714. (1) Commanding Officer, U.S. Naval Station, Roosevelt Roads, Box 3001, SOURCE: 48 FR 5555, Feb. 7, 1983, unless oth- Ceiba, PR 00635. erwise noted. (2) Officer in Charge, Naval Ammuni- § 770.41 Purpose. tion Facility, Box 3027, Ceiba, PR 00635. (3) Commanding Officer, U.S. Naval The purpose of this subpart is to pro- Security Group Activity, Sabana Seca, mulgate regulations and procedures PR 00749. governing entry upon Naval Submarine (b) The above Commanding Officers Base New London, and to prevent the are authorized to provide advance con- interruption of the stated functions sent only for installations and prop- and operations of Naval Submarine erties under their command. Requests Base New London, by the presence of for entry authorization to any other fa- any unauthorized person within the cility or property shall be addressed to boundaries of Naval Submarine Base the following: New London. Commander, U.S. Naval Forces, Carib- § 770.42 Background. bean, Box 3037, Ceiba, PR 00635. (c) Each request for entry will be Naval Submarine Base New London considered on an individual basis and maintains and operates facilities to consent will be determined by applica- support training and experimental op- ble installation entry instructions. erations of the submarine force includ- Factors that will be considered include ing providing support to submarines, the purpose of visit, the size of party, submarine rescue vessels, and assigned duration of visit, destination, security service and small craft; within capa- safeguards, safety aspects, and the bilities, to provide support to other ac- military resources necessary if the re- tivities of the Navy and other govern- quest is granted. mental activities in the area; and to perform such other functions as may be § 770.40 Violations. directed by competent authority. Any person entering or remaining on U.S. Naval installations and properties § 770.43 Responsibility. in Puerto Rico, without the advance The responsibility for proper identi- consent of those officials hereinabove fication and control of personnel and enumerated, or their authorized rep- vehicle movement on the Naval Sub- resentatives, shall be considered to be marine Base New London is vested in violation of these regulations and with the Security Officer. therefore subject to the penalties prescribed by 18 U.S.C. 1382, which pro- § 770.44 Entry restrictions. vides in pertinent part: ‘‘Whoever, Except for military personnel, their within the jurisdiction of the United authorized dependents, or guests, and States, goes upon any military, naval employees of the United States in the

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performance of their official duties, Subpart F—Base Entry Regulations entry upon Naval Submarine Base New for Puget Sound Naval Ship- London, or remaining thereon by any yard, Bremerton, Washington person for any purpose without the advance consent of the Commanding Offi- cer, Naval Submarine Base New Lon- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 6011; 50 don, or his authorized representative is U.S.C. 797; DoD Directive 5200.8 of April 25, 1991; SECNAVINST 5511.36A of July 21, 1992; prohibited. See 18 U.S.C. 1382j, the In- OPNAVINST 5530.14C of December 10, 1998; 32 ternal Security Act of 1950 (50 U.S.C. CFR 700.702; 32 CFR 700.714. 797); Chief of Naval Operations Instruc- tion 5510.45B of April 19, 1971; and Sec- SOURCE: 65 FR 53592, Sept. 5, 2000, unless otherwise noted. retary of the Navy Instruction 5511.36 of December 20, 1980. § 770.47 Purpose. § 770.45 Entry procedures. To promulgate regulations and procedures governing entry upon Puget (a) Any individual person or group of Sound Naval Shipyard, and to prevent persons desiring the advance consent of the interruption of the functions and the Commanding Officer, Naval Sub- operations of Puget Sound Naval Ship- marine Base New London, or his au- yard by the presence of any unauthor- thorized representative shall, in writ- ized person within the boundaries of ing, submit a request to the Com- the Puget Sound Naval Shipyard. manding Officer, Naval Submarine Base New London, at the following ad- § 770.48 Definition. dress: Commanding Officer (Attn: Se- For the purpose of this subpart, curity Officer), Box 38, Naval Sub- Puget Sound Shipyard shall include marine Base New London, Groton, CT that area of land, whether or not 06349. fenced or covered by water, in Kitsap (b) Each request for entry will be County in the State of Washington considered on an individual basis under the operational control of the weighing the operational, security, and Commander, Puget Sound Naval Ship- safety requirements of Naval Sub- yard or any tenant command. This in- marine Base New London with the pur- cludes all such areas regardless of pose, size of party, duration of visit, whether the areas are being used for destination, and military resources purely military purposes, for housing, which would be required by the grant- for support purposes, or for any other ing of the request. purpose by a naval command or other § 770.46 Violations. Federal agency. (a) Any person entering or remaining § 770.49 Background. on Naval Submarine Base New London, (a) Puget Sound Naval Shipyard is a without the consent of the Com- major naval ship repair facility, with manding Officer, Naval Submarine operational requirements to complete Base New London or his authorized repairs and overhaul of conventionally representative, shall be subject to the powered and nuclear powered naval penalties prescribed in 18 U.S.C. 1382, vessels. It is vital to national defense which provides in pertinent part: that the operation and use of the ship- Whoever, within the jurisdiction of the yard be continued without interrup- United States, goes upon any military, naval tion. Additionally, most of Puget . . . reservation, post, fort, arsenal, yard, Sound Naval Shipyard is dedicated to station, or installation, for any purpose pro- heavy industrial activity where poten- hibited by law or lawful regulation . . . shall tially hazardous conditions exist. be fined not more than $500 or imprisoned (b) For prevention of the interruption not more than six months or both. of the stated use of Puget Sound Naval (b) Moreover, any person who will- Shipyard and prevention of injury to fully violates this subpart is subject to any unsupervised or unauthorized per- a fine not to exceed $5000 or imprison- son as a consequence of the hazardous ment for not more than one (1) year or conditions that exist, as well as for both as provided in 50 U.S.C. 797. other reasons, it is essential to restrict

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entry upon Puget Sound Naval Ship- SOURCE: 49 FR 34003, Aug. 28, 1984, unless yard to authorized persons only. otherwise noted.

§ 770.50 Entry restrictions. § 770.53 Purpose. Except for military personnel and ci- To promulgate regulations and proce- vilian 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 Puget Sound Naval the interruption of the functions and Shipyard, or remaining thereon by any operations of Portsmouth Naval Ship- person for any purpose without ad- yard by the presence of any unauthor- vance consent of the Commander, ized person within the boundaries of Puget Sound Naval Shipyard or his/her Portsmouth Naval Shipyard. authorized representative, is prohibited. § 770.54 Background. § 770.51 Entry procedures. (a) Portsmouth Naval Shipyard maintains and operates facilities ‘‘to (a) Any person or group of persons provide logistic support for assigned desiring the advance consent of the ships and service craft; to perform au- Commander, Puget Sound Naval Ship- yard, or his authorized representative, thorized work in connection with con- shall, in writing, submit a request to struction, conversion, overhaul, repair, the Commander, Puget Sound Naval alteration, drydocking, and outfitting Shipyard, at the following address: of ships and craft, as assigned; to per- Commander, Puget Sound Naval Ship- form manufacturing, research, develop- yard, 1400 Farragut Avenue, Brem- ment, and test work, as assigned; and erton, WA 98314–5001. to provide services and material to other activities and units, as directed § 770.52 Violations. by competent authority.’’ (a) Any person entering or remaining (b) Portsmouth Naval Shipyard is a on Puget Sound Naval Shipyard, with- major naval ship repair facility, with out the consent of the Commander, operational requirements to complete Puget Sound Naval Shipyard, or an au- repairs and overhaul of conventionally thorized representative, shall be sub- powered and nuclear-powered naval ject to the penalties prescribed by 18 vessels. It is vital to national defense U.S.C. 1382, which provides in pertinent that the operation and use of the ship- part: yard be continued without undue or Whoever, within the jurisdiction of the unnecessary interruptions. Addition- United States, goes upon any military, naval ally, most of Portsmouth Naval Ship- * * * reservation, post, fort, arsenal, yard, yard is dedicated to heavy industrial station or installation, for any purpose pro- activity where potentially hazardous hibited by law or lawful regulation * * * conditions exist. shall be fined not more than $500.00 or imprisoned not more than six months or both. (c) For prevention of interruption of the stated use of the base by the pres- (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 year or any such unsupervised person as a con- 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; 50 § 770.55 Responsibility. U.S.C. 797; DoD Directive 5200.8 of April 25, The responsibility for proper identi- 1991; SECNAVINST 5511.36A of July 21, 1992; NAVCOMSYSCOMINST 5510.2B of April 18, fication and control of personnel and 1990; 32 CFR 700.702; 32 CFR 700.714. vehicle movement on the Portsmouth

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Naval Shipyard is vested with the station, or installation, for any purpose pro- Shipyard Security Manager (Code 1700). hibited by law or lawful regulation . . . Shall be fined not more than $500 or imprisoned [49 FR 34003, Aug. 28, 1984, as amended at 65 not more than six months, or both. FR 53593, Sept. 5, 2000] (b) Moreover, any person who will- § 770.56 Entry restrictions. fully violates this instruction is subject to a fine not to exceed $5000 or im- Except for military personnel, their prisonment for not more than one (1) authorized dependents, or guests, and year, or both, as provided by 50 U.S.C. civilian employees of the United States 797. in the performance of their official duties, entry upon Portsmouth Naval Shipyard, or remaining thereon by any PARTS 771–774 [RESERVED] person for any purpose without the advance consent of the Commander, PART 775—PROCEDURES FOR IM- Portsmouth Naval Shipyard, or his au- PLEMENTING THE NATIONAL EN- thorized representative, is prohibited. VIRONMENTAL POLICY ACT In many instances, Commander, Naval Sea Systems Command, approval is re- Sec. quired. 775.1 Purpose. 775.2 Scope. § 770.57 Entry procedures. 775.3 Policy. 775.4 Responsibilities. (a) Any person or group desiring the 775.5 Classified actions. advance consent of the Commander, 775.6 Planning considerations. Portsmouth Naval Shipyard, or his au- 775.7 Time limits for environmental docu- thorized representative, shall, in writ- ments. ing, submit a request to the Com- 775.8 Scoping. mander, Portsmouth Naval Shipyard, 775.9 Documentation and analysis. at the following address: Commander, 775.10 Relations with state, local and regional agencies. Portsmouth Naval Shipyard, Ports- 775.11 Public participation. mouth, NH 03801, Attention: Security 775.12 Action. Manager (Code 1700). For groups, for- AUTHORITY: 5 U.S.C. 301; 42 U.S.C. 4321–4361; eign citizens, and news media, the re- 40 CFR parts 1500–1508. quest must be forwarded to the Com- mander, Naval Sea Systems Command, SOURCE: 55 FR 33899, Aug. 20, 1990, unless for approval. otherwise noted. (b) Each request for entry will be § 775.1 Purpose. considered on an individual basis, weighing the operational, security, and To supplement Department of De- safety requirements of Portsmouth fense (DOD) regulations (32 CFR part Naval Shipyard, with the purpose, size 214) by providing policy and assigning of party, duration of visit, destination, responsibilities to the Navy and Marine and military resources which would be Corps for implementing the Council on required by the granting of the request. Environmental Quality (CEQ) regulations (40 CFR parts 1500–1508) imple- [49 FR 34003, Aug. 28, 1984, as amended at 65 menting procedural provisions of the FR 53593, Sept. 5, 2000] National Environmental Policy Act (NEPA). § 770.58 Violations. (a) Any person entering or remaining § 775.2 Scope. on Portsmouth Naval Shipyard with- The policies and responsibility as- out the consent of the Commander, signments of this part apply to the Of- Portsmouth Naval Shipyard, or his au- fice of the Secretary of the Navy, the thorized representative, shall be sub- Department of the Navy (DON), and ject to the penalties prescribed in 18 the Navy and Marine Corps operating U.S.C. 1382, which provides in pertinent forces and shore establishments. This part: part is limited to the actions of these Whoever, within the jurisdiction of the elements with environmental effects in United States, goes upon any military, naval the United States, its territories, and . . . reservation, post, fort, arsenal, yard, possessions.

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§ 775.3 Policy. where there may be an impact on man’s environment; (a) The Department of the Navy will act with care to ensure that, in con- (3) Ensure that presently unmeasured ducting its mission of providing for the environmental amenities are consid- national defense, it does so in a manner ered in the decisionmaking process; consistent with national environ- (4) Consider the reasonable alter- mental policies. In so doing, the Navy natives to recommended actions in any recognizes that the NEPA process in- proposal that would involve unresolved cludes the systematic examination of conflicts concerning alternative uses of the likely environmental consequences available resources; of implementing a proposed action. To (5) Make available to states, coun- be an effective decisionmaking tool ties, municipalities, institutions, and this process will be integrated with individuals advice and information use- other Navy-Marine Corps project plan- ful in restoring, maintaining, and en- ning at the earliest possible time. This hancing the quality of the environ- ensures that planning and decision- ment; and making reflect environmental values, (6) Use ecological information in avoid delays, and avoid potential con- planning and developing resource-ori- flicts. Care will be taken to ensure ented projects. that, consistent with other national policies and national security require- § 775.4 Responsibilities. ments, practical means and measures (a) The Assistant Secretary of the are used to protect, restore, and en- Navy for Installations and Environ- hance the quality of the environment, ment (ASN(I&E)) shall: to avoid or minimize adverse environ- (1) Advise the Secretary of the Navy mental consequences, and to attain the on DON policy regarding NEPA compli- objectives of: ance. (1) Achieving the widest range of ben- (2) Be the principal point-of-contact eficial uses of the environment without with the CEQ, Environmental Protec- degradation, risk to health and safety, tion Agency (EPA), the Deputy Assist- or other consequences that are undesir- ant Secretary of Defense for Environ- able and unintended; ment (DASD(E)), other DOD compo- (2) Preserving important historic, nents and federal agencies concerned cultural, and natural aspects of our na- with NEPA matters, and with private tional heritage, and maintaining, environmental groups as applicable. where possible, an environment that (3) Direct and/or, upon recommenda- supports diversity and variety of indi- tion, approve the preparation of Envi- vidual choice; ronmental Impact Statements (EIS); (3) Achieving a balance between re- and, after preparation, approve and for- source use and development within the ward said statements to the EPA and sustained carrying capacity of the eco- DASD(E) for review and comment. system involved; and (4) Approve and forward to the Navy (4) Enhancing the quality of renew- Judge Advocate General (JAG) Find- able resources and working toward the ings of No Significant Impact (FONSI) maximum attainable recycling of de- for publication in the FEDERAL REG- pletable resources. ISTER for those actions of national con- (b) The DON shall: cern that the Navy/Marine Corps has (1) Assess environmental con- determined will not have a significant sequences of proposed actions that effect on the quality of the human en- could affect the quality of the human vironment and for which an EIS will environment in the United States, its not be prepared. territories, and possessions in accord- (5) Approve and forward to the Navy ance with DOD and CEQ regulations; JAG, for publishing in the FEDERAL (2) Use a systematic, interdiscipli- REGISTER, a Record of Decision (ROD) nary approach that will ensure the in- which will summarize for the public tegrated use of the natural and social record the decision made by the Navy/ sciences and environmental consider- Marine Corps among the alternatives ations in planning and decisionmaking presented in a Final EIS.

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(6) Maintain liaison with the Chief of (c) The Chief of Naval Operations and Information who will coordinate with the Commandant of the Marine Corps the Assistant Secretary of Defense are to comply with these procedures by (Public Affairs) those environmental subsequently directing subordinates to: matters which have significant public (1) Ensure all appropriate instruc- affairs implications. tions, directives, and orders include the (7) Maintain liaison with the Office of requirement for funding and planning Legislative Affairs who will coordinate for environmental documentation, as with the Assistant Secretary of De- required. fense (Legislative Affairs) and the Con- (2) Conduct analyses of the environ- gress those environmental matters mental effects of current and proposed which have significant legislative im- actions in accordance with DOD regu- plications. lations, CEQ regulations (40 CFR parts (b) The Chief of Naval Operations, or 1500–1508), and other applicable regula- his designee(s), and the Commandant of tions. the Marine Corps, or his designee(s), (3) Encourage, to the extent prac- are responsible, within their respective ticable, citizen participation in envi- services, for NEPA compliance, which ronmental evaluations of projects or includes: programs. (1) Implementing DON policy regard- (4) Evaluate environmental impacts ing protection of the environment to at initial planning stages and at each include NEPA compliance. following significant step or decision (2) Advising commands of the re- milestone in the development of a quirement for submitting environ- project or program, as warranted. mental assessments or impact statements and identifying major decision § 775.5 Classified actions. points in the chain of command where (a) The fact that a proposed action is environmental effects shall be consid- of a classified nature does not relieve ered. the proponent of the action from com- (3) Making decisions on environ- plying with NEPA and the CEQ regula- mental assessments as to whether a tions. Therefore, environmental docu- Finding of No Significant Impact is ap- ments shall be prepared, safeguarded propriate or preparation of an environ- and disseminated in accordance with mental impact statement is required. the requirements applicable to classi- (4) Coordinating, as appropriate, with fied information. When feasible, these CEQ, EPA, DASD(E), ASN(I&E), other documents shall be organized in such a DOD components and federal agencies manner that classified portions are in- concerned with environmental matters. cluded as appendices so that unclassi- (5) Serving as the point of contact for fied portions can be made available to DON environmental matters. the public. Review of classified NEPA (6) Coordinating, as appropriate, with documentation will be coordinated the Chief of Information for the release with the Environmental Protection to the public of environmental assess- Agency (EPA) to fulfill requirements of ments, impact statements, Findings of section 309 of the Clean Air Act (42 No Significant Impact, and other envi- U.S.C. 7609 et seq.). ronmental documents, according to the (b) It should be noted that a classi- Freedom of Information Act and other fied EA/EIS serves the same ‘‘informed applicable federal laws. decisionmaking’’ purpose as does a (7) Providing assistance for actions published unclassified EA/EIS. Even initiated by private persons, state or though the classified EA/EIS does not local agencies and other non-DON/DOD undergo general public review and entities for which DON involvement comment, it must still be part of the may be reasonably foreseen. information package to be considered (8) Ensuring that relevant environ- by the decisionmaker for the proposed mental documentation accompanies all action. The content of a classified EA/ proposals for action through the appro- EIS (or the classified portion of a pub- priate review process so that such in- lic EA/EIS) will therefore meet the formation is available to the decision same content requirements applicable maker. to a published unclassified EA/EIS.

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§ 775.6 Planning considerations. substantial environmental degradation (a) When integrating the NEPA proc- is occurring, or is likely to occur, as a ess into early stages of proposed ac- result of ongoing operations (e.g., a dis- tions, action proponents will determine covery that significant beach erosion is as early as possible the appropriate occurring as a result of continuing am- level of documentation required under phibious exercises, new designation of NEPA, i.e., is the action a major fed- wetland habitat, or discovery of an en- eral action significantly affecting the dangered species residing in the area of human environment requiring an envi- the activity), or ronmental impact statement (EIS), is (2) There is a discovery that the envi- the action one for which the impacts ronmental effects of an ongoing activ- are not known or which may not be sig- ity are significantly and qualitatively nificant and, therefore, an environ- different or more severe than predicted mental assessment (EA), is appro- in a NEPA document prepared in con- priate, or is the action one that has no nection with the commencement of the potential for significant impacts and activity. can be categorically excluded from fur- A substantial change in a continuing ther NEPA documentation. In addition, activity (such as a substantial change CEQ regulations (40 CFR 1501.5 and in operational tempo, area of use, or in 1501.6) require early identification of methodology/equipment) which has the lead and cooperative agencies for prep- potential for significant environmental aration of an EIS for which more than impacts should be considered a pro- one agency is involved or has special posal for a new action and be docu- expertise in environmental issues to be mented accordingly. Preparation of a addressed in the EIS. NEPA document is not a necessary pre- (b) The command responsible for requisite, nor a substitute, for compli- preparation of the appropriate docu- ance with other environmental laws. mentation may prepare an EA on any action at any time in order to assist in (d) Where emergency circumstances planning and decisionmaking, includ- require immediate action, for the pro- ing the decision whether or not to pre- tection of lives and for public health pare an EIS. If a determination is made and safety, which could result in sig- based on information presented in an nificant harm to the environment, the environmental assessment that an EIS activity Commanding Officer or his is not required, a Finding of No Signifi- designee shall report the emergency cant Impact (FONSI) will be prepared action to CNO (OP–44E)/CMC (LFL) and made available to the public in ac- who will facilitate the appropriate con- cordance with CEQ regulations (40 CFR sultation with CEQ as soon as prac- 1506.6). ticable. (c) CEQ regulations (40 CFR (e) CEQ regulations provide for the 1508.18(a)) define major federal actions establishment of categorical exclusions subject to evaluation under NEPA to (40 CFR 1508.4) for those actions which, include, among other things, ‘‘new and after consideration by the Department continuing activities’’. The term new of the Navy, have been found not to activities is intended to encompass fu- have a significant effect on the human ture actions, i.e., those which are not environment, individually or cumula- ongoing at the time of the proposal. tively, under normal circumstances, The term continuing activities which and for which, therefore, neither an EA may necessitate the preparation of a nor an EIS is required. Categorical ex- NEPA document will be applied by the clusions are applicable to those kinds Department of Navy to include activi- of Navy actions which do not signifi- ties which are presently being carried cantly affect the quality of the human out in fulfillment of the Navy mission environment, which do not result in and function, including existing train- any significant change from existing ing functions, where: conditions at the site of the proposed (1) The currently occurring environ- action, and whose effect is primarily mental effects of which have not been economic or social. ‘‘Normal cir- previously evaluated in a NEPA docu- cumstances’’ means that the proposal, ment, and there is a discovery that when analyzed with respect to context

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and intensity, can reasonably be ex- (5) Studies, data and information- pected to not cause significant im- gathering that involve no physical pacts. Even though a proposal gen- change to the environment, e.g., topo- erally fits the description set out below graphic surveys, bird counts, wetland for categorical exclusions, the categor- mapping, forest inventories, and tim- ical exclusion should not be used if the ber cruising. proposed action: (6) Routine repair and maintenance (1) Would affect public health or safe- of facilities and equipment in order to ty; maintain existing operations and ac- (2) Involves a site that includes wet- tivities, including maintenance of im- lands, endangered or threatened spe- proved and semi-improved grounds cies, historical or archaeological re- such as landscaping, lawn care, and sources, or hazardous wastes; minor erosion control measures. (3) Involves effects on the human en- (7) Alteration of and additions to ex- vironment that are highly uncertain, isting structures to conform or provide involve unique or unknown risks, or conforming use specifically required by which are scientifically controversial; new or existing applicable legislation (4) Establishes precedents or makes or regulations, e.g., hush houses for decisions in principle for future actions aircraft engines and scrubbers for air with significant effects, or; emissions. (5) Threatens a violation of federal, (8) Routine actions normally con- state or local law or requirements im- ducted to operate, protect, and main- posed for protection of the environ- tain Navy-owned and/or controlled ment. properties, e.g., maintaining law and (f) A decision to forego preparation of order, physical plant protection by an EA or EIS on the basis of one or military police and security personnel, more categorical exclusions shall be and localized pest management activi- documented, including the exclusions ties on improved and semi-improved found applicable, the facts supporting lands conducted in accordance with ap- their use and specific consideration of plicable federal and state directives. whether the exceptions to the use of (9) New construction that is con- categorical exclusions, set out above, sistent with existing land use and, were applicable. The following are ac- when completed, the use or operation tions which, under normal conditions, of which complies with existing regu- are categorically excluded from further latory requirements and constraints, documentation requirements under e.g., a building on a parking lot with NEPA: associated discharges/runoff within ex- (1) Routine personnel, fiscal, and ad- isting handling capacities, a bus stop ministrative activities involving mili- along a roadway, and a foundation pad tary and civilian personnel, e.g., re- for portable buildings within a building cruiting, processing, paying, and complex. records keeping. (10) Procurement activities that pro- (2) Reductions in force wherein im- vide goods and support for routine op- pacts are limited to socioeconomic fac- erations. tors. (11) Day-to-day manpower resource (3) Routine movement of mobile as- management and research activities sets, such as ships and aircraft, in that are in accordance with approved home port reassignments (when no new plans and inter-agency agreements and support facilities are required) to per- which are designed to improve and/or form as operational groups, and/or re- upgrade Navy ability to manage those pair and overhaul. resources. (4) Relocation of personnel into exist- (12) Decisions to close facilities, de- ing federally-owned or commercially- commission equipment, and/or tempo- leased space which does not involve a rarily discontinue use of facilities or substantial change in the supporting equipment (where such equipment is infrastructure (e.g., an increase in ve- not used to prevent/control environ- hicular traffic beyond the capacity of mental impacts). This paragraph (f)(12) the supporting road network to accom- does not apply to permanent closure of modate such an increase). public roads.

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(13) Contracts for activities conservation plans are incorporated), per- ducted at established laboratories and mits and easements where there is no plants, to include contractor-operated substantial change in land use or where laboratories and plants, within facili- subsequent land use would otherwise be ties where all airborne emissions, wa- categorically excluded. terborne effluents, external radiation (20) Disposal of excess easement in- levels, outdoor noise, and solid and terests to the underlying fee owner. bulk waste disposal practices are in (21) Renewals and minor amendments compliance with existing applicable of existing real estate grants for use of federal, state, and local laws and regu- government-owned real property where lations. no significant change in land use is an- (14) Routine movement, handling and ticipated. distribution of materials, including (22) Pre-lease exploration activities hazardous materials/wastes that when for oil, gas or geothermal reserves, e.g., moved, handled, or distributed are in geophysical surveys. accordance with applicable regula- (23) Return of public domain lands to tions. the Department of the Interior. (15) Demolition, disposal, or improve- (24) Land withdrawal continuances or ments involving buildings or structures extensions which merely establish time not on or eligible for listing on the Na- periods and where there is no signifi- tional Register of Historic Places and cant change in land use. when in accordance with applicable regulations, including those regula- (25) Temporary closure of public actions applying to removal of asbestos, cess to Navy property in order to pro- PCBs, and other hazardous materials. tect human or animal life. (16) Acquisition, installation, and op- (26) Engineering effort undertaken to eration of utility and communication define the elements of a proposal or al- systems, data processing cable, and ternatives sufficiently so that the envi- similar electronic equipment which use ronmental effects may be assessed. existing rights of way, easements, dis- (27) Actions which require the contribution systems, and/or facilities. currence or approval of another federal (17) Renewals and/or initial real es- agency where the action is a categor- tate ingrants and outgrants involving ical exclusion of the other federal existing facilities and land wherein use agency. does not change significantly. This in- (28) Maintenance dredging and debris cludes, but is not limited to, existing disposal where no new depths are re- federally-owned or privately-owned quired, applicable permits are secured, housing, office, storage, warehouse, and disposal will be at an approved dis- laboratory, and other special purpose posal site. space. (29) Installation of devices to protect (18) Grants of license, easement, or human or animal life, e.g., raptor elec- similar arrangements for the use of ex- trocution prevention devices, fencing isting rights-of-way or incidental ease- to restrict wildlife movement onto air- ments complementing the use of exist- fields, and fencing and grating to pre- ing rights-of-way for use by vehicles vent accidental entry to hazardous (not to include significant increases in areas. vehicle loading); electrical, telephone, (30) Natural resources management and other transmission and commu- actions undertaken or permitted pursu- nication lines; water, wastewater, ant to agreement with or subject to stormwater, and irrigation pipelines, regulation by federal, state, or local or- pumping stations, and facilities; and ganizations having management re- for similar utility and transportation sponsibility and authority over the uses. natural resources in question, includ- (19) Transfer of real property from ing hunting or fishing during hunting the Navy to another military depart- or fishing seasons established by state ment or to another federal agency, and authorities pursuant to their state fish the granting of leases (including leases and game management laws. With re- granted pursuant to the agricultural gard to natural resources regulated by outleasing program where soil con- another federal agency, the responsible

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command may cooperate in any envi- cation of notice of filing shall be al- ronmental analysis that may be re- lowed for public comment on draft quired by the other agency’s regula- statements prior to filing of the FEIS tions. (40 CFR 1506.10(c)). (31) Approval of recreational activities which do not involve significant § 775.8 Scoping. physical alteration of the environment As soon as practicable after the deci- or increase human disturbance in sen- sion to prepare an EIS is made, an sitive natural habitats and which do early and open process called not occur in or adjacent to areas inhab- ‘‘scoping’’ shall be used to determine ited by endangered or threatened spe- the scope of issues to be addressed and cies. to identify the significant issues to be (32) Routine maintenance of timber analyzed in depth related to the pro- stands, including issuance of down- posed action (40 CFR 1501.7). This proc- wood firewood permits, hazardous tree ess also serves to deemphasize insig- removal, and sanitation salvage. nificant issues, narrowing the scope of (33) Reintroduction of endemic or na- the EIS process accordingly (40 CFR tive species (other than endangered or 1500.4(g)). Scoping results in the identi- threatened species) into their historic fication by the proponent of the range habitat when no substantial site prepa- of actions, alternatives, and impacts to ration is involved. be considered in the EIS (40 CFR [55 FR 33899, Aug. 20, 1990, as amended at 55 1508.25). For any action, this scope may FR 39960, Oct. 1, 1990] depend on the relationship of the proposed action to other existing environ- § 775.7 Time limits for environmental mental documentation. documents. (a) The timing of the preparation, § 775.9 Documentation and analysis. circulation, submission and public (a) Environmental documentation availability of environmental docu- and analyses required by this rule ments is important in achieving the should be integrated as much as prac- purposes of NEPA. Therefore, the ticable with any environmental stud- NEPA process shall begin as early as ies, surveys and impact analyses re- possible in the decisionmaking process. quired by other environmental review (b) The EPA publishes a weekly no- laws and executive orders (40 CFR tice in the FEDERAL REGISTER of envi- 1502.25). When a cost-benefit analysis ronmental impact statements filed has been prepared in conjunction with during the preceding week. The min- an action which also requires a NEPA imum time periods set forth below analysis, the cost-benefit analysis shall shall be calculated from the date of be integrated into the environmental publication of notices in the FEDERAL documentation. REGISTER. No decision on the proposed (b) CEQ regulations encourage the action may take place until the later use of tiering whenever appropriate to of the following dates: eliminate repetitive discussions of the (1) Ninety days after publication of same issues and to focus on the actual the notice of availability for a draft en- issues ripe for discussion at each level vironmental impact statement (DEIS). of environmental review (40 CFR Draft statements shall be available to 1502.20). Tiering is accomplished the public for 15 days prior to any pub- through the preparation of a broad pro- lic hearing on the DEIS (40 CFR grammatic environmental impact 1506.6(c)(2)). statement discussing the impacts of a (2) Thirty days after publication of wide ranging or long term stepped pro- the notice of availability for a final en- gram followed by narrower statements vironmental impact statement (FEIS). or environmental assessments concen- If the FEIS is available to the public trating solely on issues specific to the within ninety days from the avail- analysis subsequently prepared (40 CFR ability of the DEIS, the minimum thir- 1508.28). ty day period and the minimum nintey (1) Appropriate use of tiering: Tiering day period may run concurrently. How- is appropriate when it helps the lead ever, not less than 45 days from publi- agency to focus on issues which are

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ripe for decision and exclude from con- § 775.10 Relations with state, local and sideration issues already decided or not regional agencies. yet ripe. (40 CFR 1508.28(b).) The se- Close and harmonious planning rela- quence of statements or analyses is: tions with local and regional agencies (i) From a broad program, plan, or and planning commissions of adjacent policy environmental impact state- cities, counties, and states, for co- ment (not necessarily site specific) to a operation and resolution of mutual subordinate/smaller scope program, land use and environment-related prob- plan, or policy statement or analysis lems should be established. Additional (usually site specific) (40 CFR 1508.28 coordination may be obtained from (a)). state and area-wide planning and devel- (ii) From an environmental impact opment ‘‘clearinghouses’’. These are statement on a specific action at an agencies which have been established early stage (such as need and site selec- pursuant to Executive Order 12372 of tion) to a supplement (which is pre- July 14, 1982 (3 CFR, 1982 Comp., p. 197). ferred) or a subsequent statement or The clearinghouses serve a review and analysis at a later stage (such as envi- coordination function for Federal ac- ronmental mitigation) (40 CFR tivities and the proponent may gain in- 1508.28(b)). sights on other agencies’ approaches to (iii) In addition to the discussion re- environmental assessments, surveys, quired by these regulations for inclu- and studies in relation to any current sion in environmental impact state- proposal. The clearinghouses would ments, the programmatic environ- also be able to assist in identifying pos- mental impact statement shall also sible participants in scoping proce- discuss: dures for projects requiring an EIS. (A) A description of the subsequent stages or sites that may ultimately be § 775.11 Public participation. proposed in as much detail as presently The importance of public participa- possible; tion (40 CFR 1501.4(b)) in preparing en- (B) All of the implementing factors vironmental assessments is clearly rec- of the program that can be ascertained ognized and it is recommended that at the time of impact statement prepa- commands proposing an action develop ration; a plan to ensure appropriate commu- (C) All of the environmental impacts nication with affected and interested that will result from establishment of parties. The command Public Affairs the overall program itself that will be Office can provide assistance with de- similar for subsequent stages or sites veloping and implementing this plan. as further implementation plans are In determining the extent to which proposed; and public participation is practicable, the (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 quality of the human environment or when § 775.12 Action. an impact statement is otherwise required. Otherwise, it is appropriate to The Chief of Naval Operations and document the tiered analysis with an the Commandant of the Marine Corps environmental assessment to fully as- shall, each, as appropriate: sess the need for further documenta- (a) Provide guidelines and procedures tion or whether a FONSI would be ap- for administrative direction and imple- propriate. mentation of this part and CEQ regula- (2) [Reserved] tions; and

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(b) Maintain a focal point for the co- 776.44 Impartiality and decorum of the tri- ordination of the preparation of envi- bunal. ronmental assessments and impact 776.45 Extra-tribunal statements. statements. 776.46 Attorney as witness. 776.47 Special responsibilities of a trial counsel. PART 776—PROFESSIONAL CON- 776.48 Advocate in nonadjudicative pro- DUCT OF ATTORNEYS PRAC- ceedings. TICING UNDER THE COG- 776.49 Truthfulness in statements to others. NIZANCE AND SUPERVISION OF 776.50 Communication with person rep- THE JUDGE ADVOCATE GENERAL resented by counsel. 776.51 Dealing with an unrepresented per- Subpart A—General son. 776.52 Respect for rights of third persons. Sec. 776.53 Responsibilities of the Judge Advo- 776.1 Purpose. cate General and supervisory attorneys. 776.2 Applicability. 776.54 Responsibilities of a subordinate at- 776.3 Policy. torney. 776.4 Attorney-client relationships. 776.55 Responsibilities regarding non-attor- 776.5 Judicial conduct. ney assistants. 776.6 Conflict. 776.56 Professional independence of a cov- 776.7 Reporting requirements. ered USG attorney. 776.8 Professional Responsibility Com- 776.57 Unauthorized practice of law. mittee. 776.9 Rules Counsel. 776.58–776.65 [Reserved] 776.10 Informal ethics advice. 776.66 Bar admission and disciplinary mat- 776.11 Outside part-time practice of law. ters. 776.12 Maintenance of files. 776.67 Judicial and legal officers. 776.13–776.17 [Reserved] 776.68 Reporting professional misconduct. 776.69 Misconduct. Subpart B—Rules of Professional Conduct 776.70 Jurisdiction. 776.71 Requirement to remain in good 776.18 Preamble. standing with licensing authorities. 776.19 Principles. 776.72–776.75 [Reserved] 776.20 Competence. 776.21 Establishment and scope of representation. Subpart C—Complaint Processing 776.22 Diligence. Procedures 776.23 Communication. 776.24 Fees. 776.76 Policy. 776.25 Confidentiality of information. 776.77 Related investigations and actions. 776.26 Conflict of interest: General rule. 776.78 Informal complaints. 776.27 Conflict of interests: Prohibited 776.79 The complaint. transactions. 776.80 Initial screening and Rules Counsel. 776.28 Conflict of interest: Former client. 776.81 Charges. 776.29 Imputed disqualification: General 776.82 Interim suspension. rule. 776.83 Preliminary inquiry. 776.30 Successive Government and private 776.84 Ethics investigation. employment. 776.85 Effect of separate proceeding. 776.31 Former judge or arbitrator. 776.86 Action by JAG. 776.32 Department of Navy as client. 776.33 Client under a disability. 776.87 Finality. 776.34 Safekeeping property. 776.88 Report to licensing authorities. 776.35 Declining or terminating representation. Subpart D [Reserved] 776.36 Prohibited sexual relations. 776.37 Advisor. AUTHORITY: 10 U.S.C. 806, 806a, 826, 827; 776.38 Mediation. Manual for Courts-Martial, United States, 776.39 Evaluation for use by third persons. 1998; U.S. Navy Regulations, 1990; Secretary 776.40 Meritorious claims and contentions. of the Navy Instruction 5430.27 (series), Re- 776.41 Expediting litigation. sponsibility of the Judge Advocate General 776.42 Candor and obligations toward the for Supervision of Certain Legal Services. tribunal. 776.43 Fairness to opposing party and coun- SOURCE: 65 FR 15060, Mar. 21, 2000, unless sel. otherwise noted.

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Subpart A—General (iv) All Reserve or Retired judge advocates of the Navy or Marine Corps § 776.1 Purpose. (and any other U.S. armed force), who, while performing official DON duties, In furtherance of the authority cita- practice law or provide legal services tions (which, if not found in local li- under the cognizance and supervision braries, are available from the Office of of the JAG. the Judge Advocate General, 1322 Pat- (v) All other attorneys appointed by terson Avenue, SE., Suite 3000, Wash- JAG (or the Director, Judge Advocate ington Navy Yard DC 20374–5066), which (JA) Division, Headquarters Marine require the Judge Advocate General of Corps (HQMC), in Marine Corps mat- the Navy (JAG) to supervise the per- ters) to serve in billets or to provide formance of legal services under JAG legal services normally provided by cognizance throughout the Department Navy or Marine Corps judge advocates. of the Navy (DON), this part is promul- This policy applies to officer and en- gated: listed reservists, to active-duty per- (a) To establish Rules of Professional sonnel, and to any other personnel who Conduct (subpart B of this part) for at- are licensed to practice law by any torneys subject to this part; Federal or state authorities, but who (b) To establish procedures (subpart are not members of the Judge Advocate C of this part) for receiving, processing, General’s Corps or who do not hold the and taking action on complaints of 4402 or 9914 designation in the Marine professional misconduct made against Corps. attorneys practicing under the super- (2) The following non-U.S. Govern- vision of JAG, whether arising from ment attorneys, referred to, collec- professional legal activities in DON tively, as ‘‘covered non-USG attor- proceedings and matters, or arising neys’’ throughout this part: All civil- from other, non-U.S. Government re- ian attorneys representing individuals lated professional legal activities or in any matter for which JAG is personal misconduct which suggests charged with supervising the provision the attorney is ethically, profes- of legal services. These matters in- sionally, or morally unqualified to per- clude, but are not limited to, courts- form legal services within the DON; martial, administrative separation and boards or hearings, and disability eval- (c) To ensure quality legal services at uation proceedings. all proceedings under the cognizance (3) The term ‘‘covered attorney’’ does and supervision of the JAG. not include those civil service or civilian attorneys who practice law or per- § 776.2 Applicability. form legal services under the cog- (a) This part defines the professional nizance and supervision of the General ethical obligations of, and applies to, Counsel of the Navy. all ‘‘covered attorneys.’’ (c) Professional or personal mis- (b) ‘‘Covered attorneys’’ include: conduct unrelated to a covered attor- (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

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for their ethical conduct to the extent held in abeyance until any related provided for in § 776.55 of this part. Ac- criminal investigation or proceeding is cordingly, subpart B of this part shall complete. However, a pending criminal serve as a model of ethical conduct for investigation or proceeding does not the following personnel when involved bar the initiation or completion of a with the delivery of legal services professional misconduct investigation under the supervision of the JAG: (subpart C of this part) stemming from (1) Navy legalmen and Marine Corps the same or related incidents or pre- legal administrative officers, legal vent the JAG from imposing profes- service specialists, and legal services sional disciplinary sanctions as pro- reporters (stenotype); vided for in this part. (2) Limited duty officers (LAW); (3) Legal interns; and § 776.4 Attorney-client relationships. (4) Civilian support personnel includ- (a) The executive agency to which as- ing paralegals, legal secretaries, legal signed (DON in most cases) is the cli- technicians, secretaries, court report- ent served by each covered USG attor- ers, and others holding similar posi- ney unless detailed to represent an- tions. other client by competent authority. Specific guidelines are contained in § 776.3 Policy. § 776.32 of this part. (a) Covered attorneys shall maintain (b) Covered USG attorneys will not the highest standards of professional establish attorney-client relationships ethical conduct. Loyalty and fidelity with any individual unless detailed, as- to the United States, to the law, to cli- signed, or otherwise authorized to do ents both institutional and individual, so by competent authority. Wrongfully and to the rules and principles of pro- establishing an attorney-client rela- fessional ethical conduct set forth in tionship may subject the attorney to subpart B of this part must come be- discipline administered per this part. fore private gain or personal interest. See § 776.21 of this part. (b) Whether conduct or failure to act (c) Employment of a non-USG attor- constitutes a violation of the profes- ney by an individual client does not sional duties imposed by this part is a alter the professional responsibilities matter within the sole discretion of of a covered USG attorney detailed or JAG or officials authorized to act for otherwise assigned by competent au- JAG. Rules contained in subpart B of thority to represent that client. this part are not substitutes for, and do not take the place of, other rules and § 776.5 Judicial conduct. standards governing DON personnel To the extent that it does not con- such as the Department of Defense flict with statutes, regulations, or this Joint Ethics Regulation, the Code of part, the American Bar Association’s Conduct, the Uniform Code of Military Code of Judicial Conduct applies to all Justice (UCMJ), and the general pre- military and appellate judges and to cepts of ethical conduct to which all all other covered USG attorneys per- 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

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§ 776.9 of this part), via the supervisory evant facts, and if the Committee ad- attorney. See § 776.53 of this part. vises that the proposed course of conduct is not violative of subpart B of § 776.7 Reporting requirements. this part, then no adverse action under Covered USG attorneys shall report this part may be taken against a cov- promptly to the Rules Counsel any dis- ered attorney who acts consistent with ciplinary or administrative action, in- the Committee’s advice. cluding initiation of investigation, by (4) The Chairman will forward copies any licensing authority or Federal, of all opinions issued by the Committee State, or local bar, possessing the to the Rules Counsel. power to revoke, suspend, or in any (c) Limitation. The Committee will way limit the authority to practice law not normally provide ethics advice or in that jurisdiction, upon himself, her- opinions concerning professional re- self, or another covered attorney. Fail- sponsibility matters (e.g., ineffective ure to report such discipline or admin- assistance of counsel, prosecutorial istrative action may subject the cov- misconduct, etc.) that are then the ered USG attorney to discipline admin- subject of litigation. istered per this part. See § 776.71 of this part. § 776.9 Rules Counsel. Appointed by JAG to act as special § 776.8 Professional Responsibility Committee. assistants for the administration of this part, the Rules Counsel derive au- (a) Composition. This standing com- thority from JAG and, as detailed in mittee will consist of the Assistant this part, have ‘‘by direction’’ author- Judge Advocate General (AJAG) for ity. The Rules Counsel shall cause Military Justice; the Vice Commander, opinions issued by the Professional Re- Naval Legal Service Command (NLSC); sponsibility Committee of general in- the Chief Judge, Navy-Marine Corps terest to the DON legal community to Trial Judiciary; and in cases involving be published in summarized, non-per- Marine Corps judge advocates, the Dep- sonal form in suitable publications. uty Director, JA Division, HQMC; and Unless another officer is appointed by such other personnel as JAG from JAG to act in individual cases, the fol- time-to-time may appoint. A majority lowing officers shall act as Rules Coun- of the members constitutes a quorum. sel: The Chairman of the Committee shall (a) Director, JA Division, HQMC, for be the AJAG for Military Justice. The cases involving Marine Corps judge ad- Chairman may excuse members dis- vocates, or civil service and contracted qualified for cause, illness, or exigen- civilian attorneys who perform legal cies of military service, and may re- services under his cognizance; and quest JAG to appoint additional or al- (b) AJAG for Civil Law, in all other ternate members on a temporary or cases. permanent basis. (b) Purpose. (1) When requested by § 776.10 Informal ethics advice. JAG or by the Rules Counsel, the Com- mittee will provide formal advisory (a) Advisors. Covered attorneys may opinions to JAG regarding application seek informal ethics advice either from of rules contained in subpart B of this the officers named below or from su- part to individual or hypothetical pervisory attorneys in the field. Within cases. the Office of the JAG and HQMC, the (2) On its own motion, the Committee following officials are designated to re- may also issue formal advisory opin- spond, either orally or in writing, to ions on ethical issues of importance to informal inquiries concerning this part the DON legal community. in the areas of practice indicated: (3) Upon written request, the Com- (1) Head, Military Affairs/Personnel mittee will also provide formal advi- Law Branch, Administrative Law Divi- sory opinions to covered attorneys sion: administrative boards and related 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;

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(3) Director, Legal Assistance Divi- to obtain permission before engaging in sion: legal assistance matters; the outside practice of law may subject (4) Deputy Director, JA Division, the covered USG attorney to adminis- HQMC: cases involving Marine Corps trative or disciplinary action, includ- judge advocates, or civil service and ing professional sanctions adminis- contracted civilian attorneys who per- tered per subpart C of this part. Cov- form legal services under the cog- ered USG attorneys may obtain further nizance and supervision of Director, JA details in JAGINST 5803.1 (series). This Division, HQMC; and requirement does not apply to non- (5) Head, Standards of Conduct/Gov- USG attorneys, or to Reserve or Re- ernment Ethics Branch, Administra- tired judge advocates unless serving on tive Law Division: all other matters. active-duty for more than 30 consecu- (b) Limitation. Informal ethics advice tive days. will not normally be provided by JAG/ HQMC advisors concerning professional § 776.12 Maintenance of files. responsibility matters (e.g., ineffective Ethics complaint records shall be assistance of counsel, prosecutorial maintained by the Administrative Law misconduct) that are then the subject Division, Office of the Judge Advocate of litigation. General, and, in the case of Marine (c) Written advice. A request for infor- records, by the Judge Advocate Re- mal advice does not relieve the research and Civil Law Branch, JA Divi- quester of the obligation to comply sion, HQMC. with subpart B of this part. Although (a) Requests for access to such covered attorneys are encouraged to records should be referred to Deputy seek advice when in doubt as to their Assistant Judge Advocate General (Ad- responsibilities, they remain person- ministrative Law), Office of the Judge ally accountable for their professional Advocate General (Code 13), 1322 Pat- conduct. If, however, an attorney re- terson Avenue, SE., Suite 3000, Wash- ceives written advice on an ethical ington Navy Yard DC 20374–5066, or to matter after full disclosure of all rel- Head, Judge Advocate Research and evant facts and reasonably relies on Civil Law Branch, JA Division, Head- such advice, no adverse action under quarters Marine Corps, Washington this part will be taken against the at- Navy Yard DC 20380–0001, as appro- torney. Written advice may be sought priate. from either a supervisory attorney or (b) Local command files regarding the appropriate advisor in paragraph professional responsibility complaints (a) of this section. JAG is not bound by will not be maintained. Commanding unwritten advice or by advice provided officers and other supervisory attor- by personnel who are not supervisory neys may, however, maintain personal attorneys or advisors. See § 776.54 of files but must not share their contents this part. with others.

§ 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

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Code of Military Justice, the Manual necessary for representation. Initial for Courts-Martial, 10 U.S.C. 1044 determinations as to competence of a (Legal Assistance), other laws of the covered USG attorney for a particular United States, and regulations of the assignment shall be made by a super- DON. vising attorney before case or issue as- (b) This subpart not only addresses signments; however, assigned attor- the professional conduct of judge advo- neys may consult with supervisors con- cates, but also applies to all other cov- cerning competence in a particular ered attorneys who practice under the case. cognizance and supervision of the JAG. (b) [Reserved] See § 776.2 of this part. (c) All covered attorneys are subject § 776.21 Establishment and scope of to professional disciplinary action im- representation. posed by the JAG for violation of the (a) Establishment and scope of represen- Rules contained in this subpart. Action tation: (1) Formation of attorney-client by the JAG does not prevent other Fed- relationships by covered USG attor- eral, State, or local bar associations or neys with, and representation of, cli- other licensing authorities from taking ents is permissible only when the at- professional disciplinary or other ad- torney is authorized to do so by com- ministrative action for the same or petent authority. Military Rule of Evi- similar acts. dence 502, the Manual of the Judge Ad- § 776.19 Principles. vocate General (JAG Instruction 5800.7 (series)), and the Naval Legal Service The Rules of this subpart are based Office and Trial Service Office Manual, on the following principles. Interpreta- define when an attorney-client relation of this subpart should flow from tionship is formed between a covered common meaning. To the extent that USG attorney and a client any ambiguity or conflict exists, this servicemember, dependent, or em- subpart should be interpreted con- ployee. sistent with these general principles. (a) Covered attorneys shall: (2) Generally, the subject matter (1) Obey the law and military regula- scope of a covered attorney’s represen- tions, and counsel clients to do so. tation will be consistent with the (2) Follow all applicable ethics rules. terms of the assignment to perform (3) Protect the legal rights and inter- specific representational or advisory ests of clients, organizational and indi- duties. A covered attorney shall inform vidual. clients at the earliest opportunity of (4) Be honest and truthful in all deal- any limitations on representation and ings. professional responsibilities of the at- (5) Not derive personal gain, except torney towards the client. as authorized, for the performance of (3) A covered attorney shall follow legal services. the client’s well-informed and lawful (6) Maintain the integrity of the legal decisions concerning case objectives, profession. choice of counsel, forum, pleas, wheth- (b) Ethical rules should be consistent er to testify, and settlements. with law. If law and ethics conflict, the (4) A covered attorney’s representa- law prevails unless an ethical rule is tion of a client does not constitute an constitutionally based. endorsement of the client’s political, (c) The military criminal justice sys- economic, social, or moral views or ac- tem is a truth-finding process con- tivities. sistent with constitutional law. (5) A covered attorney shall not counsel or assist a client to engage in § 776.20 Competence. conduct that the attorney knows is (a) Competence. A covered attorney criminal or fraudulent, but a covered shall provide competent, diligent, and attorney may discuss the legal and prompt representation to a client. moral consequences of any proposed Competent representation requires the course of conduct with a client, and legal knowledge, skill, thoroughness may counsel or assist a client in mak- and expeditious preparation reasonably ing a good faith effort to determine the

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validity, scope, meaning, or applica- which the client was seen in an official tion of the law. capacity, unless so authorized by the (b) [Reserved] JAG. (4) Covered non-USG attorneys may § 776.22 Diligence. charge fees. Fees shall be reasonable. (a) Diligence. A covered attorney Factors considered in determining the shall act with reasonable diligence and reasonableness of a fee include the fol- promptness in representing a client, lowing: and shall consult with a client as soon (i) The time and labor required, the as practicable and as often as nec- novelty and difficulty of the questions essary upon being assigned to the case involved, and the skill requisite to per- or issue. form the legal service properly; (b) [Reserved] (ii) The likelihood, if apparent to the client, that the acceptance of the par- § 776.23 Communication. ticular employment will preclude other (a) Communication: employment by the attorney; (1) A covered attorney shall keep a (iii) The fee customarily charged in client reasonably informed about the the locality for similar legal services; status of a matter and promptly com- (iv) The amount involved and the reply with reasonable requests for infor- sults obtained; mation. (v) The time limitations imposed by (2) A covered attorney shall explain a the client or by the circumstances; matter to the extent reasonably nec- (vi) The nature and length of the pro- essary to permit the client to make in- fessional relationship with the client; formed decisions regarding the rep- (vii) The experience, reputation, and resentation. ability of the attorney or attorneys (b) [Reserved] performing the services; and (viii) Whether the fee is fixed or con- § 776.24 Fees. tingent. (a) Fees: (5) When the covered non-USG attor- (1) A covered USG attorney shall not ney has not regularly represented the accept any salary, fee, compensation, client, the basis or rate of the fee shall or other payments or benefits, directly be communicated to the client, pref- or indirectly, other than Government erably in writing, before or within a compensation, for services provided in reasonable time after commencing the the course of the covered USG attor- representation. ney’s official duties or employment. (6) A fee may be contingent on the (2) A covered USG attorney shall not outcome of the matter for which the accept any salary or other payments as service is rendered, except in a matter compensation for legal services ren- in which a contingent fee is prohibited dered, by that covered USG attorney in by paragraph (a)(7) of this section or a private capacity, to a client who is other law. A contingent fee agreement eligible for assistance under the DON shall be in writing and shall state the 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 extended 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 matter and, if there is a recovery, that client in a private capacity con- showing the remittance to the client cerning the same general matter for and the method of its determination.

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(7) A covered non-USG attorney shall (3) A covered attorney may reveal not enter into an arrangement for, such information to the extent the cov- charge, or collect a contingent fee for ered attorney reasonably believes nec- representing an accused in a criminal essary to establish a claim or defense case. on behalf of the covered attorney in a (8) A division of fees between covered controversy between the covered attor- non-USG attorneys who are not in the ney and the client, to establish a de- same firm may be made only if: fense to a criminal charge or civil (i) The division is in proportion to claim against the attorney based upon the services performed by each attor- conduct in which the client was in- ney or, by written agreement with the volved, or to respond to allegations in client, each attorney assumes joint re- any proceeding concerning the attor- sponsibility for the representation; ney’s representation of the client. (ii) The client is advised of and does (b) Conduct likely to result in the not object to the participation of all the attorneys involved; and significant impairment of national se- (iii) The total fee is reasonable. curity or the readiness or capability of (b) Paragraphs (a)(4) through (a)(8) of a military unit, vessel, aircraft, or this section apply only to private civil- weapon system include, but are not ian attorneys practicing in proceedings limited to: Divulging the classified lo- conducted under the cognizance and su- cation of a special operations unit such pervision of the JAG. The primary pur- that the lives of members of the unit poses of paragraphs (a)(4) through (a)(8) are placed in immediate danger; sabo- of this section are not to permit the taging a vessel or aircraft to the extent JAG to regulate fee arrangements be- that the vessel or aircraft could not tween civilian attorneys and their cli- conduct an assigned mission, or that ents but to provide guidance to covered the vessel or aircraft and crew could be USG attorneys practicing with non- lost; and compromising the security of USG attorneys and to supervisory at- a weapons site such that the weapons torneys who may be asked to inquire are likely to be stolen or detonated. into alleged fee irregularities. Absent Paragraph (a)(2) of this section is not paragraphs (a)(4) through (a)(8) of this intended to and does not mandate the section, such supervisory attorneys disclosure of conduct which may have a have no readily available standard slight impact on the readiness or capa- against which to compare allegedly bility of a unit, vessel, aircraft, or questionable conduct of a civilian at- weapon system. Examples of such con- torney. duct are: absence without authority from a peacetime training exercise; in- § 776.25 Confidentiality of information. tentional damage to an individually as- (a) Confidentiality of Information: signed weapon; and intentional minor (1) A covered attorney shall not re- damage to military property. veal information relating to representation of a client unless the client con- § 776.26 Conflict of interest: General sents after consultation, except for dis- rule. closures that are impliedly authorized (a) Conflict of interest: General rule: in order to carry out the representa- (1) A covered attorney shall not rep- tion, and except as stated in para- resent a client if the representation of graphs (a)(2) and (a)(3) of this section. (2) A covered attorney shall reveal that client will be directly adverse to such information to the extent the cov- another client, unless: ered attorney reasonably believes nec- (i) The covered attorney reasonably essary to prevent the client from com- believes the representation will not admitting a criminal act that the covered versely affect the relationship with the attorney believes is likely to result in other client; and imminent death or substantial bodily (ii) Each client consents after con- harm, or significant impairment of na- sultation. tional security or the readiness or ca- (2) A covered attorney shall not rep- pability of a military unit, vessel, air- resent a client if the representation of craft, or weapon system. that client may be materially limited

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by the covered attorney’s responsibil- bailment relationship, unless otherwise ities to another client or to a third per- specifically authorized by competent son, or by the covered attorney’s own authority. interests, unless: (2) No covered attorney shall: (i) The covered attorney reasonably (i) Use information relating to rep- believes the representation will not be resentation of a client to the disadvan- adversely affected; and tage of the client unless the client con- (ii) The client consents after consents after consultation, except as per- sultation. mitted or required by § 776.25 or § 776.42 (3) When representation of multiple of this part; clients in a single matter is under- (ii) Prepare an instrument giving the taken, the consultation shall include covered attorney or a person related to explanation of the implications of the the covered attorney as parent, child, common representation and the advan- sibling, or spouse any gift from a cli- tages and risks involved. ent, including a testamentary gift, ex- (b) Reserve judge advocates. These concept where the client is related to the flict of interest rules only apply when donee; Reservists are actually drilling or on (iii) In the case of covered non-USG active-duty for training, or, as is the attorneys, accept compensation for case with Retirees, on extended active- representing a client from one other duty or when performing other duties than the client unless the client con- subject to JAG supervision. Therefore, sents after consultation, there is no in- unless otherwise prohibited by crimi- terference with the covered attorney’s nal conflict of interest statutes, Re- independence of professional judgment serve or Retired attorneys providing or with the attorney-client relation- legal services in their civilian capacity ship, and information relating to rep- may represent clients, or work in firms resentation of a client is protected as whose attorneys represent clients, with required by § 776.25 of this part; interests adverse to the United States. (iv) Negotiate any settlement on be- Reserve judge advocates who, in their half of multiple clients in a single mat- civilian capacities, represent persons ter unless each client provides fully in- whose interests are adverse to the DON formed consent; will provide written notification to their supervisory attorney and com- (v) Prior to the conclusion of rep- manding officer, detailing their in- resentation of the client, make or ne- volvement in the matter. Reserve judge gotiate an agreement giving a covered advocates shall refrain from under- attorney literary or media rights for a taking any official action or represen- portrayal or account based in substan- tation of the DON with respect to any tial part on information relating to particular matter in which they are representation of a client; providing representation or services to (vi) Represent a client in a matter di- other clients. rectly adverse to a person whom the covered attorney knows is represented § 776.27 Conflict of interests: Prohib- by another attorney who is related as ited transactions. parent, child, sibling, or spouse to the (a) Conflict of interests: Prohibited covered attorney, except upon consent transactions. by the client after consultation regard- (1) Covered USG attorneys shall ing the relationship; or strictly adhere to current Department (vii) Acquire a proprietary interest in of Defense Ethics Regulations and shall the cause of action or subject matter of not: litigation the covered attorney is con- (i) Knowingly enter into any business ducting for a client. transactions on behalf of, or adverse (b) [Reserved] to, a client’s interest which directly or indirectly relate to or result from the § 776.28 Conflict of interest: Former attorney-client relationship; or client. (ii) Provide any financial assistance (a) Conflict of interest: Former client. A to a client or otherwise serve in a fi- covered attorney who has represented a nancial or proprietorial fiduciary or client in a matter shall not thereafter:

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(1) Represent another person in the hibit them from representing co-ac- same or a substantially related matter cused at trial by court-martial. Im- in which the person’s interests are ma- puted disqualification rules for non- terially adverse to the interests of the USG attorneys are established by their former client, unless the former client individual licensing authorities and consents after consultation; may well proscribe all attorneys from (2) Use information relating to the one law office from representing a co- representation to the disadvantage of accused, or a party with an adverse in- the former client or to the covered at- terest to an existing client, if any attorney’s own advantage, except as torney in the same office were so pro- § 776.25 or § 776.42 of this part would per- hibited. mit or require with respect to a client (2) Whether a covered USG attorney or when the information has become is disqualified requires a functional generally known; or analysis of the facts in a specific situa- (3) Reveal information relating to the tion. The analysis should include con- representation except as § 776.25 or sideration of whether the following will § 776.42 of this part would permit or re- be compromised: Preserving attorney- quire with respect to a client. client confidentiality; maintaining (b) [Reserved] independence of judgment; and avoiding positions adverse to a client. See, § 776.29 Imputed disqualification: Gen- e.g., U.S. v. Stubbs, 23 M.J. 188 (CMA eral rule. 1987). (a) Imputed disqualification: General (3) Preserving confidentiality is a rule. Covered USG attorneys working question of access to information. Ac- in the same military law office are not cess to information, in turn, is essen- automatically disqualified from rep- tially a question of fact in a particular resenting a client because any of them circumstance, aided by inferences, de- practicing alone would be prohibited ductions, or working presumptions from doing so by § 776.26, § 776.27, that reasonably may be made about § 776.28, or § 776.38 of this part. Covered the way in which covered USG attor- non-USG attorneys must consult their neys work together. A covered USG at- federal, state, and local bar rules gov- torney may have general access to files erning the representation of multiple of all clients of a military law office or adverse clients within the same of- (e.g., legal assistance attorney) and fice before such representation is initi- may regularly participate in discus- ated, as such representation may ex- sions of their affairs; it may be inferred pose them to disciplinary action under that such a covered USG attorney in the rules established by their licensing fact is privy to all information about authority. all the office’s clients. In contrast, an- (b)(1) The circumstances of military other covered USG attorney (e.g., mili- (or Government) service may require tary defense counsel) may have access representation of opposing sides by to the files of only a limited number of covered USG attorneys working in the clients and participate in discussion of same law office. Such representation is the affairs of no other clients; in the 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

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any appropriate course of action for a rial disadvantage of that person. The client without regard to the covered former covered USG attorney may con- USG attorney’s personal interests or tinue association with a firm, partner- the interests of another. When such ship, or association representing any independence is lacking or unlikely, such client only if the disqualified cov- representation cannot be zealous. ered USG attorney is screened from (5) Another aspect of loyalty to a cli- any participation in the matter and is ent is the general obligation of any at- apportioned no part of the fee or any torney to decline subsequent represen- other benefit therefrom. tations involving positions adverse to a (3) Except as the law or regulations former client in substantially related may otherwise expressly permit, a cov- matters. This obligation normally re- ered USG attorney shall not: quires abstention from adverse rep- (i) Participate in a matter in which resentation by the individual covered the covered USG attorney participated attorney involved, but, in the military personally and substantially while in legal office, abstention is not required private practice or nongovernmental by other covered USG attorneys employment, unless under applicable through imputed disqualification. law no one is, or by lawful delegation may be, authorized to act in the cov- § 776.30 Successive Government and ered USG attorney’s stead in the mat- private employment. ter; or, (a) Successive Government and private (ii) Negotiate for private employ- employment: ment with any person who is involved (1) Except as the law or regulations as a party or as attorney for a party in may otherwise expressly permit, a a matter in which the covered USG at- former covered USG attorney shall not torney is participating personally and represent a private client in connection substantially. with a matter in which the covered (4) As used in this section, the term USG attorney participated personally ‘‘matter’’ includes: and substantially as a public officer or (i) Any judicial or other proceeding, employee, unless the appropriate Gov- application, request for a ruling or ernment agency consents after con- other determination, contract, claim, sultation. If a former covered USG at- controversy, investigation, charge, ac- torney in a firm, partnership, or asso- cusation, arrest, or other particular ciation knows that another attorney matter involving a specific party or within the firm, partnership, or asso- parties, and ciation is undertaking or continuing (ii) Any other matter covered by the representation in such a matter: conflict of interest rules of the Depart- (i) The disqualified former covered ment of Defense, DON, or other appro- USG attorney must ensure that he or priate Government agency. she is screened from any participation in the matter and is apportioned no (5) As used in this section, the term part of the fee or any other benefit ‘‘confidential Governmental informa- therefrom; and, tion’’ means information which has (ii) Must provide written notice been obtained under Governmental au- promptly to the appropriate Govern- thority and which, at the time this ment agency to enable it to ascertain Rule is applied, the Government is pro- compliance with the provisions of ap- hibited by law or regulations from dis- plicable law and regulations. closing to the public or has a legal (2) Except as the law or regulations privilege not to disclose, and which is may otherwise expressly permit, a not otherwise available to the public. former covered USG attorney, who has (b) [Reserved] information known to be confidential Government information about a per- § 776.31 Former judge or arbitrator. son which was acquired while a covered (a) Former judge or arbitrator: 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

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covered USG attorney participated per- privilege or attorney-client confiden- sonally and substantially as a judge or tiality on behalf of the DON, the head other adjudicative officer, arbitrator, of the organization is subject to being or law clerk to such a person, unless all overruled by higher authority. parties to the proceeding consent after (2) If a covered USG attorney knows disclosure. that an officer, employee, or other (2) A covered USG attorney shall not member associated with the organiza- negotiate for employment with any tional client is engaged in action, in- person who is involved as a party or as tends to act or refuses to act in a mat- attorney for a party in a matter in ter related to the representation that which the covered USG attorney is par- is either adverse to the legal interests ticipating personally and substantially or obligations of the DON or a viola- as a judge or other adjudicative officer. tion of law which reasonably might be A covered USG attorney serving as law imputed to the Department, the cov- clerk to a judge, other adjudicative of- ered USG attorney shall proceed as is ficer, or arbitrator may negotiate for reasonably necessary in the best inter- employment with a party or attorney est of the Naval service. In determining involved in a matter in which the clerk how to proceed, the covered USG attor- is participating personally and sub- ney shall give due consideration to the stantially, but only after the covered seriousness of the violation and its USG attorney has notified the judge, consequences, the scope and nature of other adjudicative officer, or arbi- the covered USG attorney’s representa- trator, and been disqualified from fur- tion, the responsibility in the Naval ther involvement in the matter. service and the apparent motivation of (3) An arbitrator selected as a par- the person involved, the policies of the tisan of a party in a multi-member ar- Naval service concerning such matters, bitration panel is not prohibited from and any other relevant considerations. subsequently representing that party. Any measures taken shall be designed (b) [Reserved] to minimize prejudice to the interests of the Naval service and the risk of re- § 776.32 Department of the Navy as cli- vealing information relating to the ent. representation to persons outside the (a) Department of Navy as client: service. Such measures shall include (1) Except when representing an indi- among others: vidual client pursuant to paragraph (i) Asking for reconsideration of the (a)(6) of this section, a covered USG at- matter by the acting official; torney represents the DON (or the Ex- (ii) Advising that a separate legal ecutive agency to which assigned) act- opinion on the matter be sought for ing through its authorized officials. presentation to appropriate authority These officials include the heads of or- in the Naval service; ganizational elements within the Naval (iii) Referring the matter to, or seek- service, such as the commanders of ing guidance from, higher authority in fleets, divisions, ships and other heads the chain of command including, if 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

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act concerning the matter insists upon § 776.34 Safekeeping property. action or refuses to act, in clear viola- (a) Safekeeping property. Covered USG tion of law, the covered USG attorney attorneys shall not normally hold or shall terminate representation with re- safeguard property of a client or third spect to the matter in question. In no persons in connection with representa- event shall the attorney participate or tional duties. See § 776.27 of this part. assist in the illegal activity. In this (b) [Reserved] case, a covered USG attorney shall report such termination of representa- § 776.35 Declining or terminating rep- tion to the attorney’s supervisory at- resentation. torney or attorney representing the (a) Declining or terminating representa- next superior in the chain of command. tion: (4) In dealing with the officers, em- (1) Except as stated in paragraph ployees, or members of the Naval serv- (a)(3) of this section, a covered attor- ice a covered USG attorney shall ex- ney shall not represent a client or, plain the identity of the client when it when representation has commenced, is apparent that the Naval service’s in- shall seek to withdraw from the rep- terests are adverse to those of the offi- resentation of a client if: cer, employee, or member. (i) The representation will result in (5) A covered USG attorney rep- violation of the Rules contained in this resenting the Naval service may also subpart or other law or regulation; represent any of its officers, employ- (ii) The covered attorney’s physical ees, or members, subject to the provi- or mental condition materially impairs sions of § 776.26 of this part and other his or her ability to represent the cli- applicable authority. If the DON’s con- ent; or sent to dual representation is required (iii) The covered attorney is dis- by § 776.26 of this part, the consent missed by the client. shall be given by an appropriate offi- (2) Except as stated in paragraph cial of the DON other than the indi- (a)(3) of this section, a covered attor- vidual who is to be represented. ney may seek to withdraw from rep- (6) A covered USG attorney who has resenting a client if withdrawal can be been duly assigned to represent an in- accomplished without material adverse dividual who is subject to disciplinary effect on the interests of the client, or action or administrative proceedings, if: or to provide legal assistance to an in- (i) The client persists in a course of dividual, has, for those purposes, an at- action involving the covered attorney’s torney-client relationship with that in- services that the covered attorney rea- dividual. sonably believes is criminal or fraudu- (b) [Reserved] lent; (ii) The client has used the covered § 776.33 Client under a disability. attorney’s services to perpetrate a (a) Client under a disability: crime or fraud; (1) When a client’s ability to make (iii) The client insists upon pursuing adequately considered decisions in con- an objective that the covered attorney nection with the representation is im- considers repugnant or imprudent; paired, whether because of minority, (iv) In the case of covered non-USG mental disability, or for some other attorneys, the representation will re- reason, the covered attorney shall, as sult in an unreasonable financial bur- far as reasonably possible, maintain a den on the attorney or has been ren- normal attorney-client relationship dered unreasonably difficult by the cli- with the client. ent; or (2) A covered attorney may seek the (v) Other good cause for withdrawal appointment of a guardian or take exists. other protective action with respect to (3) When ordered to do so by a tri- a client only when the covered attor- bunal or other competent authority, a ney reasonably believes that the client covered attorney shall continue rep- cannot adequately act in the client’s resentation notwithstanding good own interest. cause for terminating the representa- (b) [Reserved] tion.

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(4) Upon termination of representa- § 776.37 Advisor. tion, a covered attorney shall take (a) Advisor. In representing a client, a steps to the extent reasonably prac- covered attorney shall exercise inde- ticable to protect a client’s interests, pendent professional judgment and such as giving reasonable notice to the render candid advice. In rendering ad- client, allowing time for assignment or vice, a covered attorney should refer employment of other counsel, and sur- not only to law but to other consider- rendering papers and property to which ations such as moral, economic, social, the client is entitled and, where a non- and political factors that may be rel- USG attorney provided representation, evant to the client’s situation. refunding any advance payment of fee (b) [Reserved] that has not been earned. The covered attorney may retain papers relating to § 776.38 Mediation. the client to the extent permitted by law. (a) Mediation: (b) [Reserved] (1) A covered attorney may act as a mediator between individuals if: § 776.36 Prohibited sexual relations. (i) The covered attorney consults with each individual concerning the (a) Prohibited sexual relations: implications of the mediation, includ- (1) A covered attorney shall not have ing the advantages and risks involved, sexual relations with a current client. and the effect on the attorney-client A covered attorney shall not require, confidentiality, and obtains each indi- demand, or solicit sexual relations vidual’s consent to the mediation; with a client incident to any profes- (ii) The covered attorney reasonably sional representation. believes that the matter can be re- (2) A covered attorney shall not en- solved on terms compatible with each gage in sexual relations with another individual’s best interests, that each attorney currently representing a individual will be able to make ade- party whose interests are adverse to quately informed decisions in the mat- those of a client currently represented ter, and that there is little risk of ma- by the covered attorney. terial prejudice to the interests of any (3) A covered attorney shall not en- of the individuals if the contemplated gage in sexual relations with a judge resolution is unsuccessful; and, who is presiding or who is likely to pre- (iii) The covered attorney reasonably side over any proceeding in which the believes that the mediation can be uncovered attorney will appear in a rep- dertaken impartially and without im- resentative capacity. proper effect on other responsibilities (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]

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§ 776.39 Evaluation for use by third (ii) Fail to disclose a material fact to persons. a tribunal when disclosure is necessary (a) Evaluation for use by third persons: to avoid assisting a criminal or fraudu- (1) A covered attorney may under- lent act by the client; take an evaluation of a matter affect- (iii) Fail to disclose to the tribunal ing a client for the use of someone legal authority in the controlling juris- other than the client if: diction known to the covered attorney (i) The covered attorney reasonably to be directly adverse to the position of believes that making the evaluation is the client and not disclosed by oppos- compatible with other aspects of the ing counsel; covered attorney’s relationship with (iv) Offer evidence that the covered the client, and, attorney knows to be false. If a covered (ii) The client consents after con- attorney has offered material evidence sultation. and comes to know of its falsity, the (2) Except as disclosure is required in covered attorney shall take reasonable connection with a report of an evalua- remedial measures; or tion, information relating to the eval- (v) Disobey an order imposed by a tri- uation is otherwise protected by § 776.25 bunal unless done openly before the tri- of this part. bunal in a good faith assertion that no (b) [Reserved] valid order should exist. (2) The duties stated in paragraph (a) § 776.40 Meritorious claims and con- of this section continue to the conclu- tentions. sion of the proceedings, and apply even (a) Meritorious claims and contentions. if compliance requires disclosure of in- A covered attorney shall not bring or formation otherwise protected by defend a proceeding, or assert or con- § 776.25 of this part. trovert an issue therein, unless there is (3) A covered attorney may refuse to a basis for doing so that is not frivo- offer evidence that the covered attor- lous, which includes a good faith argu- ney reasonably believes is false. ment for an extension, modification, or (4) In an ex parte proceeding, a cov- reversal of existing law. A covered at- ered attorney shall inform the tribunal torney representing an accused in a of all material facts known to the cov- criminal proceeding or the respondent ered attorney which are necessary to in an administrative proceeding that enable the tribunal to make an in- could result in incarceration, discharge formed decision, whether or not the from the Naval service, or other ad- facts are adverse. verse personnel action, may neverthe- (b) [Reserved] less defend the client at the proceeding 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 § 776.41 Expediting litigation. counsel. A covered attorney shall not: (a) Expediting litigation. A covered at- (1) Unlawfully obstruct another par- torney shall make reasonable efforts to ty’s access to evidence or unlawfully expedite litigation or other pro- alter, destroy, or conceal a document ceedings consistent with the interests or other material having potential evi- of the client and the attorney’s respon- dentiary value. A covered attorney sibilities to tribunals. shall not counsel or assist another per- (b) [Reserved] son to do any such act; (2) Falsify evidence, counsel or assist § 776.42 Candor and obligations to- a witness to testify falsely, or offer an ward the tribunal. inducement to a witness that is prohib- (a) Candor and obligations toward the ited by law; tribunal: (3) In pretrial procedure, make a friv- (1) A covered attorney shall not olous discovery request or fail to make knowingly: reasonably diligent effort to comply (i) Make a false statement of mate- with a legally proper discovery request rial fact or law to a tribunal; by an opposing party;

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(4) In trial, allude to any matter that ceration, discharge from the Naval the covered attorney does not reason- service, or other adverse personnel ac- ably believe is relevant or that will not tion, and the statement relates to: be supported by admissible evidence, (i) The character, credibility, reputa- assert personal knowledge of facts in tion, or criminal record of a party, sus- issue except when testifying as a wit- pect in a criminal investigation, vic- ness, or state a personal opinion as to tim, or witness, or the identity of a the justness of a cause, the credibility victim or witness, or the expected tes- of a witness, the culpability of a civil timony of a party, suspect, victim, or litigant, or the guilt or innocence of an witness; accused; or (ii) The possibility of a plea of guilty (5) Request a person other than a cli- to the offense or the existence or con- ent to refrain from voluntarily giving tents of any confession, admission, or relevant information to another party statement given by an accused or sus- unless: pect or that person’s refusal or failure (i) The person is a relative, an em- to make a statement; ployee, or other agent of a client; and (iii) The performance or results of (ii) The covered attorney reasonably any forensic examination or test or the believes that the person’s interests will refusal or failure of a person to submit not be adversely affected by refraining to an examination or test, or the iden- from giving such information. tity or nature of physical evidence ex- (b) [Reserved] pected to be presented; (iv) Any opinion as to the guilt or in- § 776.44 Impartiality and decorum of nocence of an accused or suspect in a the tribunal. criminal case or other proceeding that (a) Impartiality and decorum of the tri- could result in incarceration, discharge bunal. A covered attorney shall not: from the Naval service, or other ad- (1) Seek to influence a judge, court verse personnel action; member, member of a tribunal, pro- (v) Information the covered attorney spective court member or member of a knows or reasonably should know is tribunal, or other official by means likely to be inadmissible as evidence prohibited by law or regulation; before a tribunal and would, if dis- (2) Communicate ex parte with such a closed, create a substantial risk of ma- person except as permitted by law or terially prejudicing an impartial pro- regulation; or ceeding; (3) Engage in conduct intended to dis- (vi) The fact that an accused has rupt a tribunal. been charged with a crime, unless there (b) [Reserved] is included therein a statement explaining that the charge is merely an § 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- offense or claim or defense involved

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and, except when prohibited by law or ered attorney is likely to be a nec- regulation, the identity of the persons essary witness except when: involved; (i) The testimony relates to an (iv) The scheduling or result of any uncontested issue; step in litigation; (ii) The testimony relates to the na- (v) A request for assistance in obtain- ture and quality of legal services ren- ing evidence and information necessary dered in the case; or thereto; (iii) Disqualification of the covered (vi) A warning of danger concerning attorney would work substantial hard- the behavior of the person involved, ship on the client. when there is reason to believe that (2) A covered attorney may act as ad- there exists the likelihood of substan- vocate in a trial in which another at- tial harm to an individual or to the torney in the covered attorney’s office public interest; and is likely to be called as a witness, un- (vii) In a criminal case, in addition to less precluded from doing so by § 776.26 paragraphs (a)(3)(i) through (a)(3)(vi) of or § 776.28 of this part. this section: (b) [Reserved] (A) The identity, duty station, occupation, and family status of the ac- § 776.47 Special responsibilities of a cused; trial counsel. (B) If the accused has not been appre- (a) Special responsibilities of a trial hended, information necessary to aid in counsel. A trial counsel shall: apprehension of that person; (1) Recommend to the convening au- (C) The fact, time, and place of ap- thority that any charge or specifica- prehension; and (D) The identity of in- tion not warranted by the evidence be vestigating and apprehending officers withdrawn; or agencies and the length of the inves- (2) Make reasonable efforts to assure tigation. that the accused has been advised of (4) Notwithstanding paragraphs (a)(1) the right to, and the procedure for ob- and (a)(2)(i) through (a)(2)(vii) of this taining, counsel and has been given section, a covered attorney may make reasonable opportunity to obtain coun- a statement that a reasonable covered sel; attorney would believe is required to (3) Not seek to obtain from an unrep- protect a client from the substantial resented accused a waiver of important undue prejudicial effect of recent pub- pretrial rights; licity not initiated by the covered at- (4) Make timely disclosure to the de- torney or the attorney’s client. A fense of all evidence or information 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 information 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

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making extrajudicial comments that § 776.48 Advocate in nonadjudicative have a substantial likelihood of height- proceedings. ening public condemnation of the ac- (a) Advocate in nonadjudicative pro- cused. ceedings. A covered attorney rep- (b) Role of the trial counsel. (1) The resenting a client before a legislative trial counsel represents the United or administrative tribunal in a non- States in the prosecution of special and adjudicative proceeding shall disclose general courts-martial. See Article that the appearance is in a representa- 38(a), UCMJ, and R.C.M. 103(16), tive capacity and shall conform to the 405(d)(3)(A), and 502(d)(5), MCM, 1998. provisions of § 776.42, § 776.43, and § 776.44 Accordingly, a trial counsel has the re- of this part. sponsibility of administering justice (b) [Reserved] and is not simply an advocate. This responsibility carries with it specific ob- § 776.49 Truthfulness in statements to others. ligations to see that the accused is accorded procedural justice and that (a) Truthfulness in statements to others. guilt is decided upon the basis of suffi- In the course of representing a client a cient evidence. Paragraph (a)(1) of this covered attorney shall not knowingly; (1) Make a false statement of mate- section recognizes that the trial coun- rial fact or law to a third person; or sel does not have all the authority (2) Fail to disclose a material fact to vested in modern civilian prosecutors. a third person when disclosure is nec- The authority to convene courts-mar- essary to avoid assisting a criminal or tial, and to refer and withdraw specific fraudulent act by a client, unless discharges, is vested in convening au- closure is prohibited by § 776.25 of this thorities. Trial counsel may have the part. duty, in certain circumstances, to (b) [Reserved] bring to the court’s attention any charge that lacks sufficient evidence to § 776.50 Communication with person support a conviction. See United States represented by counsel. v. Howe, 37 M.J. 1062 (NMCMR 1993). (a) Communication with person rep- Such action should be undertaken only resented by counsel. In representing a after consultation with a supervisory client, a covered attorney shall not attorney and the convening authority. communicate about the subject of the See also § 776.42 of this part, governing representation with a party the cov- ex parte proceedings. Applicable law ered attorney knows to be represented may require other measures by the by another attorney in the matter, un- trial counsel. Knowing disregard of less the covered attorney has the con- those obligations or a systematic abuse sent of the other attorney or is author- of prosecutorial discretion could con- ized by law to do so. stitute a violation of § 776.69 of this (b) [Reserved] part. § 776.51 Dealing with an unrepre- (2) The ‘‘ABA Standards for Criminal sented person. Justice: The Prosecution Function,’’ (a) Dealing with an unrepresented per- (3rd ed. 1993), has been used by appel- son. When dealing on behalf of a client late courts in analyzing issues con- with a person who is not represented by cerning trial counsel conduct. To the counsel, a covered attorney shall not extent consistent with this part, the state or imply that the covered attor- ABA standards may be used to guide ney is disinterested. When the covered trial counsel in the prosecution of attorney knows or reasonably should criminal cases. See United States v. know that the unrepresented person Howe, 37 M.J. 1062 (NMCR 1993); United misunderstands the covered attorney’s States v. Dancy, 38 M.J. 1 (CMA 1993); role in the matter, the covered attor- United States v. Hamilton, 41 M.J. 22 ney shall make reasonable efforts to (CMA 1994); United States v. Meek, 44 correct the misunderstanding. M.J. 1 (CMA 1996). (b) [Reserved]

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§ 776.52 Respect for rights of third per- directives and regulations of super- sons. visory attorneys when not inconsistent (a) Respect for rights of third persons. with this part or the duty of a judge In representing a client, a covered at- advocate to exercise independent pro- torney shall not use means that have fessional judgment as to the best inter- no substantial purpose other than to est of an individual client. embarrass, delay, or burden a third (3) A subordinate covered attorney person, or use methods of obtaining does not violate this part if that cov- evidence that violate the legal rights ered attorney acts in accordance with a of such a person. supervisory attorney’s written and rea- (b) [Reserved] sonable resolution of an arguable question of professional duty. See § 776.10. § 776.53 Responsibilities of the Judge (b) [Reserved] Advocate General and supervisory attorneys. § 776.55 Responsibilities regarding (a) Responsibilities of the Judge Advo- non-attorney assistants. cate General and supervisory attorneys. (a) Responsibilities regarding non-attor- (1) The JAG and supervisory attorneys ney assistants. With respect to a non-at- shall make reasonable efforts to ensure torney acting under the authority, su- that all covered attorneys conform to pervision, or direction of a covered at- this part. torney: (2) A covered attorney having direct (1) The senior supervisory attorney supervisory authority over another in an office shall make reasonable ef- covered attorney shall make reason- forts to ensure that the person’s con- able efforts to ensure that the other at- duct is compatible with the profes- torney conforms to this part. sional obligations of a covered attor- (3) A supervisory attorney shall be ney; responsible for another subordinate (2) A covered attorney having direct covered attorney’s violation of this supervisory authority over the non-at- part if: torney shall make reasonable efforts to (i) The supervisory attorney orders ensure that the person’s conduct is or, with knowledge of the specific con- compatible with the professional obli- duct, ratifies the conduct involved; or gations of a covered attorney; and (ii) The supervisory attorney has di- (3) A covered attorney shall be re- rect supervisory authority over the sponsible for conduct of such a person other attorney and knows of the con- that would be a violation of this part if duct at a time when its consequences engaged in by a covered attorney if: can be avoided or mitigated but fails to (i) The covered attorney orders or, take reasonable remedial action. (4) A supervisory attorney is respon- with the knowledge of the specific con- sible for ensuring that the subordinate duct, explicitly or impliedly ratifies covered attorney is properly trained the conduct involved; or and is competent to perform the duties (ii) The covered attorney has direct to which the subordinate covered at- supervisory authority over the person, torney is assigned. and knows of the conduct at a time (b) [Reserved] when its consequences can be avoided or mitigated but fails to take reason- § 776.54 Responsibilities of a subordi- able remedial action. nate attorney. (b) [Reserved] (a) Responsibilities of a subordinate attorney: § 776.56 Professional independence of (1) A covered attorney is bound by a covered USG attorney. this part notwithstanding that the cov- (a) Professional independence of a covered attorney acted at the direction of ered USG attorney. another person. (1) Notwithstanding a judge advo- (2) In recognition of the judge advocate’s status as a commissioned officer cate’s unique dual role as a commis- subject, generally, to the authority of sioned officer and attorney, subordi- superiors, a judge advocate detailed or nate judge advocates shall obey lawful assigned to represent an individual

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member or employee of the DON is ex- (3) Additionally, a judge advocate has pected to exercise unfettered loyalty a responsibility to report any instances and professional independence during of unlawful command influence. See the representation consistent with R.C.M. 104, MCM, 1998. these Rules and remains ultimately responsible for acting in the best interest § 776.57 Unauthorized practice of law. of the individual client. (a) Unauthorized practice of law. A (2) Notwithstanding a civilian USG covered USG attorney shall not: attorney’s status as a Federal em- (1) Except as authorized by an appro- ployee subject, generally, to the au- priate military department, practice thority of superiors, a civilian USG at- law in a jurisdiction where doing so is torney detailed or assigned to rep- prohibited by the regulations of the resent an individual member or em- legal profession in that jurisdiction; or ployee of the DON is expected to exer- (2) Assist a person who is not a mem- cise unfettered loyalty and professional ber of the bar in the performance of ac- independence during the representation tivity that constitutes the unauthor- consistent with these Rules and re- ized practice of law. mains ultimately responsible for act- (b) Limiting the practice of law to ing in the best interest of the indi- members of the bar protects the public vidual client. against rendition of legal services by (3) The exercise of professional judg- unqualified persons. A covered USG at- ment in accordance with paragraphs torney’s performance of legal duties (a)(1) and (a)(2) of this section shall pursuant to a military department’s not, standing alone, be a basis for an authorization, however, is considered a adverse evaluation or other prejudicial Federal function and not subject to action. regulation by the states. Thus, a cov- (b)(1) This section recognizes that a ered USG attorney may perform legal judge advocate is a military officer re- assistance duties even though the cov- quired by law to obey the lawful orders ered attorney is not licensed to prac- of superior officers. It also recognizes tice in the jurisdiction within which the similar status of a civilian USG at- the covered attorney’s duty station is torney. Nevertheless, the practice of located. Paragraph (a)(2) of this section law requires the exercise of judgment does not prohibit a covered USG attor- solely for the benefit of the client and ney from using the services of non-at- free of compromising influences and torneys and delegating functions to loyalties. Thus, when a covered USG them, so long as the covered attorney attorney is assigned to represent an in- supervises the delegated work and re- dividual client, neither the attorney’s tains responsibility for it. See § 776.55 personal interests, the interests of of this part. Likewise, it does not pro- other clients, nor the interests of third hibit covered USG attorneys from pro- persons should affect loyalty to the in- viding professional advice and instruc- dividual client. tion to non-attorneys whose employ- (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 attorney 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

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with any application for bar admission, ficer, or of a candidate for election or appointment as a judge advocate, em- appointment to judicial or legal office. ployment as a civilian USG attorney, (b) [Reserved] certification by the JAG or his designee, or in connection with any dis- § 776.68 Reporting professional mis- ciplinary matter, shall not: conduct. (1) Knowingly make a false state- (a) Reporting professional misconduct: ment of fact; or (1) A covered attorney having knowl- (2) Fail to disclose a fact necessary to edge that another covered attorney has correct a misapprehension known by committed a violation of this part that the person to have arisen in the mat- raises a substantial question as to that ter, or knowingly fail to respond to a covered attorney’s honesty, trust- lawful demand for information from an worthiness, or fitness as a covered at- admissions or disciplinary authority, torney in other respects, shall report except that this section does not re- such violation in accordance with the quire disclosure of information other- procedures set forth in subpart C of wise protected by § 776.25 of this part. this part. (b) The duty imposed by this section (2) A covered attorney having knowl- extends to covered attorneys and other edge that a judge has committed a vio- attorneys seeking admission to a bar, lation of applicable rules of judicial application for appointment as a cov- conduct that raises a substantial ques- ered USG attorney (military or civil- tion as to the judge’s fitness for office ian) or certification by the JAG or his shall report such violation in accord- designee. Hence, if a person makes a ance with the procedures set forth in false statement in connection with an subpart C of this part. application for admission or certifi- (3) This Rule does not require disclo- cation (e.g., misstatement by a civilian sure of information otherwise pro- attorney before a military judge re- tected by § 776.25 of this part. garding qualifications under Rule for (b) [Reserved] Courts-Martial 502), it may be the basis for subsequent disciplinary action if § 776.69 Misconduct. the person is admitted or certified, and (a) Misconduct. It is professional mis- in any event may be relevant in a sub- conduct for a covered attorney to: sequent admission application. The (1) Violate or attempt to violate this duty imposed by this section applies to subpart, knowingly assist or induce an- a covered attorney’s own admission or other to do so, or do so through the discipline as well as that of others. acts of another; Thus, it is a separate professional of- (2) Commit a criminal act that re- fense for a covered attorney to make a flects adversely on the covered attor- knowing misrepresentation or omission ney’s honesty, trustworthiness, or fit- in connection with a disciplinary inves- ness as an attorney in other respects; tigation of the covered attorney’s own (3) Engage in conduct involving dis- conduct. This section also requires af- honesty, fraud, deceit, or misrepresen- firmative clarification of any mis- tation; understanding on the part of the ad- (4) Engage in conduct that is preju- missions, certification, or disciplinary dicial to the administration of justice; authority of which the person involved (5) State or imply an ability to influ- becomes aware. ence improperly a government agency or official; or § 776.67 Judicial and legal officers. (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

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such commission can suggest an inabil- legal services in any DON matter under ity to fulfill the professional role of JAG cognizance and supervision, may judge advocate and attorney. This con- be precluded from such practice of law cept has similar application to civilian if, in the opinion of the JAG (as exer- USG attorneys. cised through this instruction) the at- (2) Covered non-USG attorneys, Re- torney’s conduct in any venue renders servists, and Retirees (acting in their that attorney unable or unqualified to civilian capacity), like their active- practice in DON programs or pro- duty counterparts, are expected to ceedings. demonstrate model behavior and exem- plary integrity at all times. JAG may § 776.71 Requirement to remain in consider any and all derogatory or ben- good standing with licensing au- eficial information about a covered at- thorities. torney, for purposes of determining the (a) Requirement to remain in good attorney’s qualification, professional standing with state licensing authority: competence, or fitness to practice law (1) Each officer of the Navy appointed in DON matters, or to administer dis- as a member of the Judge Advocate cipline under this part. Such consider- General’s Corps, each officer of the Ma- ation shall be made, except in emer- rine Corps designated a judge advocate, gency situations necessitating imme- and each civil service and contracted diate action, according to the proce- civilian attorney who practices law dures established in subpart C of this under the cognizance and supervision part. of the JAG shall maintain a status considered ‘‘in good standing’’ at all times § 776.70 Jurisdiction. with the licensing authority admitting (a) Jurisdiction. All covered attorneys, the individual to the practice of law as defined in § 776.2 of this part, shall be before the highest court of at least one governed by this part. State, Territory, Commonwealth, or (b)(1) Many covered USG attorneys the District of Columbia. practice outside the territorial limits (2) The JAG, the Director, JA Divi- of the jurisdiction in which they are li- sion, HQMC, or any other supervisory censed. While covered attorneys re- attorney may require any covered USG main subject to the governing author- attorney over whom they exercise au- ity of the jurisdiction in which they thority to establish that the attorney are licensed to practice, they are also continues to be in good standing with subject to these Rules. his or her licensing authority. Rep- (2) When covered USG attorneys are resentatives of the JAG or of the Direc- engaged in the conduct of Navy or Ma- tor, JA Division, HQMC, may also in- rine Corps legal functions, whether quire directly of any such covered USG serving the Navy or Marine Corps as a attorney’s licensing authority to estab- client or serving an individual client as lish whether he or she continues to be authorized by the Navy or Marine in good standing and has no discipli- Corps, the rules contained in this sub- nary action pending. part supersede any conflicting rules ap- (3) Each covered USG attorney shall plicable in jurisdictions in which the immediately report to the JAG if any covered attorney may be licensed. jurisdiction in which the covered USG However, covered attorneys practicing attorney is or has been a member in in State or Federal civilian court pro- good standing commences disciplinary ceedings will abide by the rules adopt- investigation or action against him or ed by that State or Federal civilian her or if the covered USG attorney is court during the proceedings. As for disciplined, suspended, or disbarred covered non-USG attorneys practicing from the practice of law in any juris- under the supervision of the JAG, vio- diction. lation of the rules contained in this (4) Each covered non-USG attorney subpart may result in suspension from representing an accused in any court- practice in DON proceedings. martial or administrative separation (3) Covered non-USG attorneys, Re- proceeding shall be a member in good servists, or Retirees (acting in their ci- standing with, and authorized to prac- vilian capacity) who seek to provide tice law by, the bar of a Federal court

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or of the bar of the highest court of a tracted civilian attorneys practicing State, or a lawyer otherwise authorized under the JAG’s cognizance and super- by a recognized licensing authority to vision, failure to maintain good stand- practice law and found by the military ing or otherwise to comply with the re- judge to be qualified to represent the quirements of this Rule may result in accused. adverse administrative action under (b)(1) The licensing authority grant- applicable personnel regulations, in- ing the certification or privilege to cluding termination of employment. practice law within the jurisdiction (4) A covered USG attorney need only generally defines the phrase ‘‘in good remain in good standing in one juris- standing.’’ At a minimum it means diction. If admitted to the practice of that the individual is subject to the ju- law in more than one jurisdiction, how- risdiction’s disciplinary review process; ever, and any jurisdiction commences has not been suspended or disbarred disciplinary action against or dis- from the practice of law within the ju- ciplines, suspends or disbars the cov- risdiction; is up-to-date in the payment ered USG attorney from the practice of of all required fees; has met applicable law, the covered USG attorney must so continuing legal education require- advise the JAG. ments which the jurisdiction has im- (5) Certification by the United States posed (or the cognizant authority has Court of Appeals for the Armed Forces waived those requirements in the case that a covered attorney is in good of the individual); and has met such standing with that court will not sat- other requirements as the cognizant isfy the requirement of this section, authority has set to remain eligible to since such status is normally depend- practice law. So long as these condi- ent on Article 27 UCMJ certification tions are met, a covered USG attorney alone. may be considered ‘‘inactive’’ as to the practice of law within a particular ju- §§ 776.72–776.75 [Reserved] risdiction and still be considered ‘‘in good standing’’ for purposes of this sec- Subpart C—Complaint Processing tion. Procedures (2) Rule for Courts-Martial 502(d)(3)(A) requires that any civilian § 776.76 Policy. defense counsel representing an ac- (a) It is JAG’s policy to investigate cused in a court-martial be a member and resolve, expeditiously and fairly, of the bar of a Federal court or of the all allegations of professional impro- bar of the highest court of a State. priety lodged against covered attor- This civilian defense counsel qualifica- neys practicing under JAG cognizance tion only has meaning if the attorney and supervision. is a member ‘‘in good standing,’’ see (b) Rules Counsel approval will be ob- U.S. v. Waggoner, 22 M.J. 692 (AFCMR tained before conducting any prelimi- 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

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characterize appropriately the nature reasonably confirmed, be the basis of a of a covered attorney’s conduct to de- formal complaint described in § 776.79 termine who may and properly should of this part. take official action. (a) Questions of legal ethics and pro- § 776.79 The complaint. fessional misconduct by covered attor- (a) The complaint shall: neys are within the exclusive province (1) Be in writing and be signed by the of JAG. Ethical or professional mis- complainant; conduct will not be attributed to any (2) State that the complainant has covered attorney in any official record personal knowledge, or has otherwise without a final JAG determination, received reliable information indi- made in accordance with this part, cating, that: that such misconduct has occurred. (i) The covered attorney concerned (b) Criminal misconduct is properly is, or has been, engaged in misconduct addressed by the covered USG attor- that demonstrates a lack of integrity, ney’s commander through the discipli- that constitutes a violation of subpart nary process provided under the UCMJ B of this part or a failure to meet the and implementing regulations, or ethical standards of the profession; or through referral to appropriate civil authority. (ii) The covered attorney concerned (c) Poor performance of duty is prop- is ethically, professionally, or morally erly addressed by the covered USG at- unqualified to perform his or her du- torney’s reporting senior through a va- ties; and riety of administrative actions, includ- (3) Contain a complete, factual state- ing documentation in fitness reports or ment of the acts or omissions consti- employee appraisals. tuting the substance of the complaint, (d) Prior JAG approval is not re- as well as a description of any at- quired to investigate allegations of tempted resolution with the covered criminal conduct or poor performance attorney concerned. Supporting state- of duty involving covered attorneys. ments, if any, should be attached to When, however, investigations into the complaint. criminal conduct or poor performance (b) A complaint may be initiated by reveal conduct that constitutes a viola- any person, including the Administra- tion of this part, or of the Code of Judi- tive Law Division of the Office of JAG cial Conduct in the case of judges, such (JAG (13)), or the Judge Advocate Re- conduct shall be reported to the Rules search and Civil Law Branch, JA Divi- Counsel immediately. sion, HQMC (JAR). (e) Inquiries into allegations of professional misconduct will normally be § 776.80 Initial screening and Rules held in abeyance until any related Counsel. criminal investigation or proceeding is (a) Complaints shall be forwarded to complete. However, a pending criminal JAG(13) or, in cases involving Marine investigation or proceeding does not Corps judge advocates or civil service bar the initiation or completion of a and contracted civilian attorneys who professional misconduct investigation perform legal services under the cog- stemming from the same or related in- nizance and supervision of Director, JA cidents or prevent the JAG from im- Division, HQMC, to JAR. posing professional disciplinary sanc- (b) JAG(13) and JAR shall log all tions as provided for in this subpart. complaints received and will ensure that a copy is provided to the covered § 776.78 Informal complaints. attorney who is the subject of the com- Informal, anonymous, or ‘‘hot line’’ plaint. type complaints alleging professional (c) The covered attorney concerned misconduct must be referred to appro- may elect to provide an initial state- priate authority (such as the JAG In- ment regarding the complaint for the spector General or the concerned su- Rules Counsel’s consideration. The cov- pervisory attorney) for inquiry. Such ered attorney will promptly inform complaints are not, by themselves, cog- JAG(13) or JAR if he or she intends to nizable under this subpart but may, if submit any such statement. At this

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screening stage, forwarding of the com- shall ensure the covered attorney con- plaint to the Rules Counsel will not be cerned receives appropriate counseling unduly delayed to await the covered and shall notify the complainant and attorney’s submission. the covered attorney concerned that (d) The Rules Counsel shall initially the file has been closed. JAG(13) and review the complaint, and any state- JAR will maintain copies of all cor- ment submitted by the covered attor- respondence related to the closing of ney complained of, to determine the file. The covered attorney con- whether it complies with the require- cerned is responsible, under these cir- ments set forth in § 776.79 of this part. cumstances, to determine if his or her (1) Complaints that do not comply Federal, state, or local licensing au- with the requirements may be returned thority requires reporting of such ac- to the complainant for correction or tion. completion, and resubmission to JAG(13) or JAR. If the complaint is not § 776.81 Charges. corrected or completed, and resub- (a) If the Rules Counsel determines mitted within 30 days of the date of its that there is probable cause to believe return, the Rules Counsel may close that a violation of this part or of the the file without further action. JAG Code of Judicial Conduct has occurred, (13) and JAR will maintain copies of all the Rules Counsel shall draft charges correspondence relating to the return alleging violations of this part or of and resubmission of a complaint, and the Code of Judicial Conduct and for- shall notify the covered attorney con- ward the charges, together with the cerned if and when the Rules Counsel original complaint and any allied pa- takes action to close the file. pers, as follows: (2) Complaints that comply with the requirements shall be further reviewed (1) In cases involving Marine Corps by the Rules Counsel to determine attorneys not serving as defense coun- whether the complaint: sel or attached to Navy units, to the (i) Establishes probable cause to be- officer exercising general court-martial lieve that a violation of this part or of jurisdiction (OEGCMJ) over the the Judicial Code has occurred; or charged covered attorney, and request, (ii) Alleges ineffective assistance of on behalf of JAG, that the OEGCMJ ap- counsel, or other violations of subpart point a covered attorney (normally the B of this part, as a matter of defense in concerned attorney’s supervisor) to a court-martial, administrative separa- conduct a preliminary inquiry into the tion, or nonjudicial punishment pro- matter; ceeding. If so, the Rules Counsel shall (2) In all other cases, to the super- forward a copy of the complaint to the visory attorney in the charged attor- proper appellate authority for appro- ney’s chain of command (or such other priate action and comment. officer as JAG may designate), and di- (e) The Rules Counsel shall close the rect, on behalf of JAG, the supervisory file without further action if the com- attorney to conduct a preliminary in- plaint does not establish probable quiry into the matter. cause to believe that a violation has (b) The Rules Counsel shall provide a occurred. The Rules Counsel shall no- copy of the charges, complaint, and tify the complainant and the covered any allied papers to the covered attor- attorney concerned that the file has ney against whom the complaint is been closed. JAG(13) and JAR will made and notify him or her that a pre- maintain copies of all correspondence liminary inquiry will be conducted. related to the closing of the file. Service of complaints, charges, and (f) The Rules Counsel may close the other materials shall be made by per- file if there is a determination that the sonal service, or by registered or cer- complaint establishes probable cause tified mail sent to the covered attor- but the violation is of a minor or tech- ney’s last known address reflected in nical nature appropriately addressed official Navy or Marine Corps records through corrective counseling. The or in the records of the state bar(s) Rules Counsel shall report any such de- which licensed the attorney to practice cision to the JAG. The Rules Counsel law.

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(c) The Rules Counsel shall also pro- covered attorney shall have 10 calendar vide a copy of the charges to the com- days in which to respond. manding officer, or equivalent, of the (c) If an order to show cause has been covered USG attorney concerned if the issued under paragraph (b) of this sec- complaint involves a covered USG at- tion, and the period for response has torney on active duty or in civilian passed without a response, or after con- Federal service. sideration of any response and finding (d) The Rules Counsel shall also for- sufficient evidence demonstrating ward a copy of the charges as follows: probable cause to believe that the cov- (1) In cases involving Navy or Marine ered attorney is guilty of misconduct Corps judge advocates serving in Naval and poses a substantial threat of irrep- Legal Service Command (NLSC) units, arable harm to his or her client or the to Vice Commander, NLSC; orderly administration of military jus- (2) In cases involving Navy attorneys tice, JAG may direct an interim sus- serving in Marine Corps units, or involving Marine Corps attorneys serving pension of the covered attorney’s cer- in Navy units, to the Commandant of tification under Articles 26(b) or 27(b), the Marine Corps (Attn: JA); UCMJ, or R.C.M. 502(d)(3), or the au- (3) In cases involving members of the thority to provide legal assistance, Navy-Marine Corps Trial Judiciary, to pending the results of the investigation the Trial Judiciary Chief Judge; and and final action under this instruction. (4) To the appropriate military serv- (d) Within 10 days of JAG’s decision ice attorney discipline section if the to impose an interim suspension, the complaint involves covered attorneys covered attorney may request an op- certified by the Judge Advocates Gen- portunity to be heard before an impar- eral/Chief Counsel of the other uni- tial officer designated by JAG. Where formed services. so requested, that opportunity will be scheduled within 10 calendar days of § 776.82 Interim suspension. the request. The designated officer (a) Where the Rules Counsel deter- shall receive any information that the mines there is probable cause to be- covered attorney chooses to submit on lieve that a covered attorney has com- the limited issue of whether to con- mitted misconduct or other violations tinue the interim suspension. The des- of this part, and poses a substantial ignated officer shall submit a rec- threat of irreparable harm to his or her ommendation to JAG within 5 calendar clients or the orderly administration of days of conclusion. military justice, the Rules Counsel (e) A covered attorney may, based shall so advise the JAG. Examples of upon a claim of changed circumstances when a covered attorney may pose a or newly discovered evidence, petition ‘‘substantial threat of irreparable for dissolution or amendment of JAG’s harm’’ include: imposition of interim suspension. (1) When charged with the commis- (f) Any professional responsibility in- sion of a crime which involves moral turpitude or reflects adversely upon vestigation involving a covered attor- the covered attorney’s fitness to prac- ney who has been suspended pursuant tice law, and where substantial evi- to this section shall proceed and be dence exists to support the charge; concluded without appreciable delay. (2) When engaged in the unauthorized However, JAG may determine it nec- practice of law (e.g., failure to main- essary to await completion of a related tain good standing in accordance with criminal investigation or proceeding, § 776.71 of this part); or or completion of a professional respon- (3) Where unable to represent client sibility action initiated by other li- interests competently. censing authorities. In such cases, JAG (b) Upon receipt of information from shall cause the Rules Counsel to so no- the Rules Counsel, JAG may order the tify the covered attorney under in- covered attorney to show cause why he terim suspension. Where necessary, or she should not face interim suspen- continuation of the interim suspension sion, pending completion of a profes- shall be reviewed by JAG every 6 sional responsibility investigation. The months.

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§ 776.83 Preliminary inquiry. (e) The PIO shall forward (via the (a) The purpose of the preliminary in- OEGCMJ in appropriate Marine cases) quiry is to determine whether, in the the results of the preliminary inquiry opinion of the officer appointed to con- to the Rules Counsel, providing copies duct the preliminary inquiry (PIO), the to the covered attorney concerned and questioned conduct occurred and, if so, all parties to whom the charges were whether it constitutes a violation of previously sent. this part or the Code of Judicial Con- (f) The Rules Counsel shall review all duct. The PIO is to recommend appro- preliminary inquiries. If the report is priate action in cases of substantiated determined by the Rules Counsel to be violations. incomplete, the Rules Counsel shall re- (b) Upon receipt of the complaint and turn it to the PIO, or to another in- charges, the PIO shall promptly inves- quiry officer, for further or supple- tigate the charges, generally following mental inquiry. If the report is com- the format and procedures set forth in plete, then: the Manual of the Judge Advocate Gen- (1) If the Rules Counsel determines, eral for the conduct of command inves- either consistent with the PIO rec- tigations. Reports of relevant inves- ommendation or through the Rules tigations by other authorities includ- Counsel’s own review of the report, ing, but not limited to, State bar asso- that a violation of this part or Code of ciations may be used. The PIO should Judicial Conduct has not occurred and also: that further action is not warranted, (1) Identify and obtain sworn affida- the Rules Counsel shall close the file vits or statements from all relevant and notify the complainant, the cov- and material witnesses to the extent ered attorney concerned, and all offi- practicable; cials previously provided copies of the (2) Identify, gather, and preserve all complaint. JAG(13) and/or JAR, as ap- other relevant and material evidence; propriate, will maintain copies of all and correspondence related to the closing (3) Provide the covered attorney con- of the file. cerned an opportunity to review all (2) If the Rules Counsel determines, evidence, affidavits, and statements either consistent with a PIO rec- collected and a reasonable period of ommendation or through the Rules time (normally not exceeding 7 days) Counsel’s own review of the report, to submit a written statement or any that a violation of this part has oc- other written material that the cov- curred but that the violation is of a ered attorney wishes considered. minor or technical nature, then the (c) The PIO may appoint and use Rules Counsel may determine that cor- such assistants as may be necessary to rective counseling is appropriate and conduct the preliminary inquiry. close the file. The Rules Counsel shall (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

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Counsel’s own review of the report, ter, or Legal Service Support Section that further professional discipline or (LSSS); or corrective action may be warranted, (ii) Requested by the covered attor- the Rules Counsel shall: ney concerned, if such counsel is at- (i) In cases involving Marine Corps tached to the cognizant NLSO, Law attorneys not serving as defense coun- Center, LSSS, or to a Navy or Marine sel or attached to Navy units, request, Corps activity located within 100 miles on behalf of JAG, that the subject at- of the hearing site at the time of the torney’s OEGCMJ appoint a disin- scheduled hearing, and if such counsel terested covered attorney (normally is reasonably available, as determined senior to the covered attorney com- by the requested counsel’s reporting plained of and not previously involved senior in his or her sole discretion. in the case) to conduct an ethics inves- There is no right to detailed counsel if tigation into the matter; requested counsel is made available. (ii) In all other cases, appoint, on be- (d) If a hearing is requested, the IO half of JAG, a disinterested covered at- will conduct the hearing after reason- torney (normally senior to the covered able notice to the covered attorney attorney complained of and not pre- concerned. The hearing will not be un- viously involved in the case) to con- reasonably delayed. The hearing is not duct an ethics investigation; and adversarial in nature and there is no (iii) Notify those supervisory attor- right to subpoena witnesses. Rules of neys listed in § 776.81(c) and § 776.81(d) of evidence do not apply. The covered at- this part. torney concerned or his or her counsel may question witnesses that appear. § 776.84 Ethics investigation. The proceedings shall be recorded but (a) Whenever an ethics investigation no transcript of the hearing need be is initiated, the covered attorney con- made. Evidence gathered during, or cerned will be so notified, in writing, subsequent to, the preliminary inquiry by the Rules Counsel. and such additional evidence as may be (b) The covered attorney concerned offered by the covered attorney shall will be provided written notice of the be considered. following rights in connection with the (e) The IO may appoint and use such ethics investigation: assistants as may be necessary to con- (1) To request a hearing before the in- duct the ethics investigation. vestigating officer (IO); (f) The IO shall prepare a report (2) To inspect all evidence gathered; which summarizes the evidence, to in- (3) To present written or oral state- clude information presented at any ments or materials for consideration; hearing. (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

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the Commandant of the Marine Corps such decision to the JAG. The Rules (Attn: JA); Counsel shall ensure that the covered (3) In cases involving Navy or Marine attorney concerned receives appro- Corps attorneys serving in subordinate priate counseling and shall notify the Navy fleet or staff billets, via the fleet complainant, the covered attorney con- or staff judge advocate attached to the cerned, and all officials previously pro- appropriate second-echelon com- vided copies of the complaint that the mander; file has been closed. JAG(13) and/or (4) In cases involving members of the JAR, as appropriate, will maintain cop- Navy-Marine Corps Trial Judiciary, via ies of all correspondence related to the the Trial Judiciary Chief Judge; closing of the file. The covered attor- (5) In cases involving Marine Corps ney concerned is responsible, under attorneys serving in defense billets, via these circumstances, to determine if the Chief Defense Counsel of the Ma- his or her Federal, state, or local li- rine Corps; censing authority requires reporting (6) In cases involving Marine Corps such action. attorneys not serving in defense coun- (3) If the Rules Counsel believes, ei- sel billets or in Navy units, via the ther consistent with the IO rec- OEGCMJ over the concerned attorney; ommendation or through the Rules and Counsel’s own review of the investiga- (7) In cases involving covered attor- tion, that professional disciplinary ac- neys certified by the Judge Advocates tion greater than corrective counseling General/Chief Counsel of the other U.S. is warranted, the Rules Counsel shall Armed Forces, via the appropriate forward the investigation, with rec- military service attorney discipline ommendations as to appropriate dis- section of that U.S. Armed Force. position, to JAG. (h) The Rules Counsel shall review all ethics investigations. If the report is § 776.85 Effect of separate proceeding. determined by the Rules Counsel to be incomplete, the Rules Counsel shall re- (a) For purposes of this section, the turn it to the IO, or to another inquiry term ‘‘separate proceeding’’ includes, officer, for further or supplemental in- but is not limited to, court-martial, quiry. If the report is complete, then: non-judicial punishment, administra- (1) If the Rules Counsel determines, tive board, or similar civilian or mili- either consistent with the IO rec- tary proceeding. ommendation or through the Rules (b) In cases in which a covered attor- Counsel’s own review of the investiga- ney is determined, at a separate pro- tion, that a violation of this part or ceeding determined by the Rules Coun- Code of Judicial Conduct has not oc- sel to afford procedural protection curred and that further action is not equal to that provided by a preliminary warranted, the Rules Counsel shall inquiry under this instruction, to have close the file and notify the complain- committed misconduct which forms ant, the covered attorney concerned, the basis for ethics charges under this and all officials previously provided instruction, the Rules Counsel may dis- copies of the complaint. JAG(13) and/or pense with the preliminary inquiry and JAR, as appropriate, will maintain cop- proceed directly with an ethics inves- ies of all correspondence related to the tigation. closing of the file. (c) In those cases in which a covered (2) If the Rules Counsel determines, attorney is determined to have com- either consistent with the IO rec- mitted misconduct at a separate pro- ommendation or through the Rules ceeding which the Rules Counsel deter- Counsel’s own review of the investiga- mines has afforded procedural protection, that a violation of this part or tion equal to that provided by an eth- Code of Judicial Conduct has occurred ics investigation under this instruc- but that the violation is of a minor or tion, the previous determination re- technical nature, then the Rules Coun- garding the underlying misconduct is sel may determine that corrective res judicata with respect to that issue counseling is appropriate and close the during an ethics investigation. A sub- file. The Rules Counsel shall report any sequent ethics investigation based on

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such misconduct shall afford the cov- of this part or its application to the ered attorney a hearing into whether facts of a particular case. the underlying misconduct constitutes (c) Upon receipt of the ethics inves- a violation of this part, whether the tigation, and any requested advisory violation affects his or her fitness to opinion, JAG will take such action as practice law, and what sanctions, if JAG considers appropriate in JAG’s any, are appropriate. sole discretion. JAG may, for example: (d) The Rules Counsel may dispense (1) Direct further inquiry into speci- with the preliminary inquiry and eth- fied areas. ics investigation, and if warranted, rec- (2) Where determining the allega- ommend to JAG that the covered at- tions to be unfounded, or that no fur- torney concerned be disciplined, con- ther action is warranted, direct the sistent with this subpart, after pro- Rules Counsel to make appropriate file viding the covered attorney concerned entries and to notify the complainant, written notice and an opportunity to covered attorney concerned, and all in- be heard in writing, in those cases in terested parties of such determination. which a covered attorney has been: (3) Where determining the allega- (1) Decertified or suspended from the tions to be supported by clear and con- practice of law or otherwise subjected vincing evidence, take appropriate cor- to professional responsibility discipline rective action including, but not lim- by the Judge Advocate General of an- ited to: other Military Department; (i) Limiting the covered attorney to practice under direct supervision of a (2) Disbarred or suspended from the supervisory attorney; practice of law or otherwise subjected (ii) Limiting the covered attorney to to professional responsibility discipline practice in certain areas or forbidding by the Court of Appeals for the Armed him or her from practice in certain Forces or by any Federal, State, or areas; local bar; or (iii) Suspending or revoking, for a (3) Convicted of a felony (or any of- specified or indefinite period, the cov- fense punishable by one year or more of ered attorney’s authority to provide imprisonment) in a civilian or military legal assistance; court which, in the opinion of the (iv) Where finding that the mis- Rules Counsel, renders the attorney conduct so adversely affects the cov- unqualified or incapable of properly or ered attorney’s continuing ability to ethically representing the DON or a practice law in the naval service or client when the Rules Counsel has de- that the misconduct so prejudices the termined that the attorney was af- reputation of the DON legal commu- forded procedural protection equal to nity, the administration of military that provided by an ethics investiga- justice, the practice of law under the tion under this instruction. cognizance of JAG, or the armed services 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 definite period or to be removed perma- opinion on interpretation of subpart B nently; and

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(vi) Directing the Rules Counsel to Navy Regulations or any other regula- contact appropriate authorities such as tion to the covered attorney concerned. the Chief of Naval Personnel or the Commandant of the Marine Corps so § 776.88 Report to licensing authori- that pertinent entries in appropriate ties. DON records may be made; notifying Upon determination by JAG that a the complainant, covered attorney con- violation of the Rules or the Code of cerned, and any officials previously Judicial Conduct has occurred, JAG provided copies of the complaint; and may cause the Rules Counsel to report notifying appropriate tribunals and au- that fact to the Federal, State, or local thorities of any action taken to sus- bar or other licensing authority of the covered attorney concerned. If so re- pend, decertify, or limit the practice of ported, notice to the covered attorney a covered attorney as counsel before shall be provided by the Rules Counsel. courts-martial or the U.S. Navy-Ma- The JAG’s decision in no way dimin- rine Corps Court of Appeals, adminis- ishes a covered attorney’s responsi- trative boards, as a legal assistance at- bility to report adverse professional torney, or in any other legal pro- disciplinary action as required by the ceeding or matter conducted under attorney’s Federal, State, and local bar JAG cognizance and supervision. or other licensing authority.

§ 776.87 Finality. Subpart D [Reserved] Any action taken by JAG is final, subject to any remedies afforded by PARTS 777–799 [RESERVED]

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