National Defense

32 Parts 700 to 799 Revised as of July 1, 2004

National Defense

Containing a codification of documents of general applicability and future effect

As of July 1, 2004

With Ancillaries

Published by Office of the Federal Register National Archives and Records Administration

A Special Edition of the Federal Register

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For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402–0001

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Page Explanation ...... v

Title 32:

Subtitle A—Department of Defense (Continued)

Chapter VI—Department of the Navy ...... 5

Finding Aids:

Table of CFR Titles and Chapters ...... 541

Alphabetical List of Agencies Appearing in the CFR ...... 559

List of CFR Sections Affected ...... 569

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VerDate May<21>2004 01:26 Aug 04, 2004 Jkt 203124 PO 00000 Frm 00003 Fmt 8092 Sfmt 8092 Y:\SGML\203124F.XXX 203124F Cite this Code: CFR

To cite the regulations in this volume use title, part and section number. Thus, 32 CFR 700.101 refers to title 32, part 700, section 101.

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The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further sub- divided into parts covering specific regulatory areas. Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows: Title 1 through Title 16...... as of January 1 Title 17 through Title 27 ...... as of April 1 Title 28 through Title 41 ...... as of July 1 Title 42 through Title 50...... as of October 1 The appropriate revision date is printed on the cover of each volume. LEGAL STATUS The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510). HOW TO USE THE CODE OF FEDERAL REGULATIONS The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to determine the latest version of any given rule. To determine whether a Code volume has been amended since its revision date (in this case, July 1, 2004), consult the ‘‘List of CFR Sections Affected (LSA),’’ which is issued monthly, and the ‘‘Cumulative List of Parts Affected,’’ which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule. EFFECTIVE AND EXPIRATION DATES Each volume of the Code contains amendments published in the Federal Reg- ister since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usually not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cut- off date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text. OMB CONTROL NUMBERS The Paperwork Reduction Act of 1980 (Pub. L. 96–511) requires Federal agencies to display an OMB control number with their information collection request.

VerDate May<21>2004 19:13 Jul 17, 2004 Jkt 203124 PO 00000 Frm 00005 Fmt 8008 Sfmt 8092 Y:\SGML\203124F.XXX 203124F Many agencies have begun publishing numerous OMB control numbers as amendments to existing regulations in the CFR. These OMB numbers are placed as close as possible to the applicable recordkeeping or reporting requirements. OBSOLETE PROVISIONS Provisions that become obsolete before the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on a given date in the past by using the appropriate numerical list of sections affected. For the period before January 1, 2001, consult either the List of CFR Sections Affected, 1949–1963, 1964–1972, 1973–1985, or 1986–2000, published in 11 separate volumes. For the period beginning January 1, 2001, a ‘‘List of CFR Sections Affected’’ is published at the end of each CFR volume. CFR INDEXES AND TABULAR GUIDES A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR INDEX AND FINDING AIDS. This volume contains the Parallel Table of Statutory Authorities and Agency Rules (Table I). A list of CFR titles, chapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume. An index to the text of ‘‘Title 3—The President’’ is carried within that volume. The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the ‘‘Contents’’ entries in the daily Federal Register. A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles. REPUBLICATION OF MATERIAL There are no restrictions on the republication of material appearing in the Code of Federal Regulations. INQUIRIES For a legal interpretation or explanation of any regulation in this volume, contact the issuing agency. The issuing agency’s name appears at the top of odd–numbered pages. For inquiries concerning CFR reference assistance, call 202–741–6000 or write to the Director, Office of the Federal Register, National Archives and Records Administration, Washington, DC 20408 or e-mail [email protected]. SALES The Government Printing Office (GPO) processes all sales and distribution of the CFR. For payment by credit card, call toll free, 866–512–1800, or DC area, 202–512–1800, M–F 8 a.m. to 4 p.m. e.s.t. or fax your order to 202–512–2250, 24 hours a day. For payment by check, write to the Superintendent of Documents, Attn: New Orders, P.O. Box 371954, Pittsburgh, PA 15250–7954. For GPO Customer Serv- ice call 202–512–1803. ELECTRONIC SERVICES The full text of the Code of Federal Regulations, the LSA (List of CFR Sections Affected), The United States Government Manual, the Federal Register, Public Laws, Public Papers, Weekly Compilation of Presidential Documents and the Pri- vacy Act Compilation are available in electronic format at www.gpoaccess.gov/ nara (‘‘GPO Access’’). For more information, contact Electronic Information Dis- semination Services, U.S. Government Printing Office. Phone 202–512–1530, or 888– 293–6498 (toll–free). E–mail, [email protected].

VerDate May<21>2004 19:13 Jul 17, 2004 Jkt 203124 PO 00000 Frm 00006 Fmt 8008 Sfmt 8092 Y:\SGML\203124F.XXX 203124F The Office of the Federal Register also offers a free service on the National Archives and Records Administration’s (NARA) World Wide Web site for public law numbers, Federal Register finding aids, and related information. Connect to NARA’s web site at www.archives.gov/federallregister. The NARA site also contains links to GPO Access.

RAYMOND A. MOSLEY, Director, Office of the Federal Register. July 1, 2004.

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Title 32—NATIONAL DEFENSE is composed of six volumes. The parts in these volumes are arranged in the following order: parts 1–190, parts 191–399, parts 400– 629, parts 630–699, parts 700–799, and part 800 to End. The contents of these volumes represent all current regulations codified under this title of the CFR as of July 1, 2004.

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

For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of Regula- tions publication program is under the direction of Frances D. McDonald, assisted by Alomha S. Morris.

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VerDate May<21>2004 19:13 Jul 17, 2004 Jkt 203124 PO 00000 Frm 00010 Fmt 8092 Sfmt 8092 Y:\SGML\203124F.XXX 203124F CFRORDR.FRM Title 32—National Defense

(This book contains parts 700 to 799)

Part

SUBTITLE A—DEPARTMENT OF DEFENSE (CONTINUED)

CHAPTER VI—Department of the Navy ...... 700

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SUBCHAPTER A—UNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDS

Part Page 700 United States Navy regulations and official records ...... 9 701 Availability of Department of the Navy records and publication of Department of the Navy 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 ...... 173 707 Special rules with respect to additional station and signal lights ...... 184

SUBCHAPTER C—PERSONNEL 716 Death gratuity...... 186 718 Missing Persons Act ...... 191 719 Regulations supplementing the manual for courts- martial ...... 194 720 Delivery of personnel; service of process and subpoenas; production of official records ...... 207 721–722 [Reserved] 723 Board for Correction of Naval Records ...... 224 724 Naval Discharge Review Board ...... 231 725 Release of official information for litigation purposes and testimony by Department of the Navy personnel ...... 264 726 Payments of amounts due mentally incompetent members of the Naval service ...... 278 727 Legal assistance...... 281 728 Medical and dental care for eligible persons at Navy medical department facilities ...... 285 732 Nonnaval medical and dental care ...... 349

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Part Page 733 Assistance to and support of dependents; paternity complaints ...... 363 734 Garnishment of pay of Naval military and civilian personnel for collection of child support and alimony ...... 370 735 Reporting births and deaths in cooperation with other agencies ...... 372

SUBCHAPTER D—PROCUREMENT, PROPERTY, PATENTS, AND CONTRACTS 736 Disposition of property ...... 374 744 Policies and procedures for the protection of proprietary rights in technical information proposed for release to foreign governments ...... 378 746 Licensing of government inventions in the custody of the Department of the Navy ...... 379

SUBCHAPTER E—CLAIMS 750 General claims regulations ...... 385 751 Personnel claims regulations ...... 409 752 Admiralty claims...... 438 755 Claims for injuries to property under Article 139 of the Uniform Code of Military Justice ...... 441 756 Nonappropriated-fund claims regulations ...... 444 757 Affirmative claims regulations ...... 446

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 ...... 455 762 [Reserved] 763 Rules governing public access ...... 467

SUBCHAPTER G—MISCELLANEOUS RULES 765 Rules applicable to the public ...... 470 766 Use of Department of the Navy aviation facilities by civil aircraft ...... 474 767 Application guidelines for archeological research permits on ship and aircraft wrecks under the jurisdiction of the Department of the Navy ...... 484 768–769 [Reserved] 770 Rules limiting public access to particular installations ...... 488 771–774 [Reserved] 775 Procedures for implementing the National Envi- ronmental Policy Act ...... 499

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Part Page 776 Professional conduct of attorneys practicing under the cognizance and supervision of the Judge Ad- vocate General ...... 507 777–799 [Reserved]

CROSS REFERENCES: Panama Canal: See 35 CFR chapter I. National Oceanic and Atmospheric Administration, Department of Commerce: See 15 CFR chapter IX. Coast Guard, Department of Transportation: See 33 CFR chapter I; 46 CFR chapter I. Office of the Secretary of Defense: See 32 CFR chapter I. Department of the Army: See 32 CFR chapter V. Navigation and Navigable Waters (Anchorage Bridge, Danger Zone, Navigation, and Oil Pol- lution Regulations, etc.): See 33 CFR chapters I and II. Selective Service System: See 32 CFR chapter XVI. Department of Veterans Affairs: See 38 CFR chapter I.

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PART 700—UNITED STATES NAVY 700.324 The Assistant Secretary of the Navy (Manpower and Reserve Affairs). REGULATIONS AND OFFICIAL 700.325 The Assistant Secretary of the Navy RECORDS (Installations and Environment). 700.326 The Assistant Secretary of the Navy Subpart A—Navy Regulations (Research, Development and Acquisi- tion). Sec. 700.327 The General Counsel of the Navy. 700.101 Origin and history of United States Navy Regulations. THE OFFICE THE SECRETARY OF THE NAVY/THE 700.102 Statutory authority for issuance of STAFF ASSISTANTS United States Navy Regulations. 700.103 Purpose and effect of United States 700.330 The Staff Assistants. Navy Regulations. 700.331 The Judge Advocate General. 700.104 Statutory authority for prescription 700.332 The Naval Inspector General. of other regulations. 700.333 The Chief of Naval Research. 700.105 Issuance of directives by other offi- 700.334 The Chief of Information. cers and officials. 700.335 The Chief of Legislative Affairs. 700.106 Control of administrative require- 700.336 The Director, Office of Program Ap- ments. praisal. 700.107 Maintenance of Navy Regulations. 700.337 The Auditor General. Subpart B—The Department of the Navy Subpart D—The Chief of Naval Operations 700.201 Origin and authority of the Depart- ment of the Navy. 700.401 Precedence. 700.202 Mission of the Department of the 700.402 Succession. Navy. 700.403 Statutory authority and responsi- 700.203 Composition. bility of the Chief of Naval Operations. 700.204 The principal elements of the De- 700.404 Statutory authority and responsi- partment of the Navy. bility of the Office of the Chief of Naval Operations. Subpart C—The Secretary of the Navy 700.405 Delegated authority and responsibility. THE SECRETARY OF THE NAVY 700.406 Naval Vessel Register, classification 700.301 Responsibilities of the Secretary of of naval craft, and status of ships and the Navy. service craft. 700.302 Responsibilities within the Depart- ment of the Navy. Subpart E—The Commandant of the 700.303 Succession. Marine Corps 700.304 Recommendations to Congress. 700.305 Assignment of functions. 700.501 Precedence. 700.306 Assignment of duty and titles. 700.502 Succession. 700.307 Powers with respect to the Coast 700.503 Statutory authority and responsi- Guard. bility of the Commandant of the Marine Corps. THE OFFICE OF THE SECRETARY OF THE NAVY 700.504 Statutory authority and responsi- 700.310 Composition. bility of the Headquarters, Marine Corps. 700.311 Sole responsibilities. 700.505 Delegated authority and responsi- 700.312 Authority over organizational mat- bility. ters. Subpart F—The United States Coast Guard THE OFFICE OF THE SECRETARY OF THE NAVY/ (When Operating as a Service of the THE CIVILIAN EXECUTIVE ASSISTANTS Navy) 700.320 The Civilian Executive Assistants. 700.321 The Under Secretary of the Navy. 700.601 Relationship and operation as a 700.322 Assistant Secretaries of the Navy; service in the Navy. statutory authorization. 700.602 The Commandant of the Coast 700.323 The Assistant Secretary of the Navy Guard. (Financial Management). 700.603 Duties and responsibilities.

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Subpart G—Commanders in Chief and 700.846 Status of logs. Other Commanders 700.847 Responsibility of a master of an in- service ship of the Military Sealift Com- TITLES AND DUTIES OF COMMANDERS mand. 700.848 Relations with merchant seamen. 700.701 Titles of commanders. 700.855 Status of boats. 700.702 Responsibility and authority of com- 700.856 Pilotage. manders. 700.857 Safe navigation and regulations gov- 700.703 To announce assumption of com- erning operation of ships and aircraft. mand. 700.859 Quarantine. 700.704 Readiness. 700.860 Customs and immigration inspec- 700.705 Observance of international law. tions. 700.706 Keeping immediate superiors informed. SPECIAL CIRCUMSTANCES/SHIPS IN NAVAL STATIONS AND SHIPYARDS STAFFS OF COMMANDERS 700.871 Responsibility for safety of ships and 700.710 Organization of a staff. craft at a naval station or shipyard. 700.711 Authority and responsibilities of of- 700.872 Ships and craft in drydock. ficers of a staff. 700.873 Inspection incident to commis- ADMINISTRATION AND DISCIPLINE sioning of ships. 700.720 Administration and discipline: Staff SPECIAL CIRCUMSTANCES/PROSPECTIVE embarked. COMMANDING OFFICERS 700.721 Administration and discipline: Staff 700.880 Duties of the prospective com- based ashore. manding officer of a ship. 700.722 Administration and discipline: Staff unassigned to an administrative com- Subpart I—The Senior Officer Present mand. 700.723 Administration and discipline: Sepa- CONTENTS rate and detached command. 700.901 The senior officer present. Subpart H—The Commanding Officer 700.902 Eligibility for command at sea. 700.903 Authority and responsibility. COMMANDING OFFICERS IN GENERAL 700.904 Authority of senior officer of the Marine Corps present. 700.801 Applicability. 700.922 Shore patrol. 700.802 Responsibility. 700.923 Precautions for health. 700.804 Organization of commands. 700.924 Medical or dental aid to persons not 700.809 Persons found under incriminating in the naval service. circumstances. 700.934 Exercise of power of consul. 700.810 Rules for visits. 700.939 Granting of asylum and temporary 700.811 Dealers, tradesmen, and agents. refuge. 700.812 Postal matters. 700.815 Deaths. Subpart J—Precedence, Authority and 700.816 The American National Red Cross. Command 700.819 Records. 700.822 Delivery of personnel to civil au- AUTHORITY thorities and service of subpoena or other process. 700.1020 Exercise of authority. 700.826 Physical security. 700.1026 Authority of an officer who suc- 700.827 Effectiveness for service. ceeds to command. 700.828 Search by foreign authorities. 700.1038 Authority of a sentry. 700.832 Environment pollution. DETAIL TO DUTY 700.834 Care of ships, aircraft, vehicles and their equipment. 700.1052 Orders to active service. 700.835 Work, facilities, supplies, or services 700.1053 Commander of a task force. for other Government departments, 700.1054 Command of a naval base. State or local governments, foreign gov- 700.1055 Command of a naval shipyard. ernments, private parties and morale, 700.1056 Command of a ship. welfare, and recreational activities. 700.1057 Command of an air activity. 700.1058 Command of a submarine. COMMANDING OFFICERS AFLOAT 700.1059 Command of a staff corps activity. 700.840 Unauthorized persons on board. 700.841 Control of passengers. Subpart K—General Regulations 700.842 Authority over passengers. STANDARDS OF CONDUCT 700.844 Marriages on board. 700.845 Maintenance of logs. 700.1101 Demand for court-martial.

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700.1113 Endorsement of commercial prod- with the approbation of the President uct or process. of the United States.’’ 700.1120 Personal privacy and rights of individuals regarding their personal records. (c) Thirteen editions of Navy Regula- tions were published in accordance OFFICIAL RECORDS with this authority (later codified as 700.1121 Disclosure, publication and security Section 1547, Revised Statutes) be- of official information. tween 1865 and 1948. The 1973 edition of 700.1126 Correction of naval records. Navy Regulations was published under 700.1127 Control of official records. authority of 10 United States Code 700.1128 Official records in civil courts. (U.S.C.) 6011, which provided that DUTIES OF INDIVIDUALS ‘‘United States Navy Regulations shall 700.1138 Responsibilities concerning mari- be issued by the Secretary of the Navy juana, narcotics, and other controlled with the approval of the President.’’ In substances. 1981, this provision was amended to 700.1139 Rules for preventing collisions, eliminate the requirement for presi- afloat and in the air. dential approval. RIGHTS AND RESTRICTIONS (d) While leaving this provision unaf- 700.1162 Alcoholic beverages. fected, Congress enacted the Gold- 700.1165 Fraternization prohibited. water-Nichols Department of Defense 700.1166 Sexual harassment. Reorganization Act of 1986 (Pub. L. 99– 700.1167 Supremacist activity. 443), which granted each of the service AUTHORITY: 10 U.S.C. 6011. secretaries the authority to prescribe regulations to carry out his or her stat- SOURCE: 64 FR 56062, Oct. 15, 1999, unless otherwise noted. utory functions, powers and duties. § 700.102 Statutory authority for Subpart A—Navy Regulations issuance of United States Navy Reg- ulations. § 700.101 Origin and history of United States Navy Regulations. Title 10, United States Code, section (a) United States Navy Regulations 6011, provides that United States Navy began with the enactment by the Con- Regulations shall be issued by the Sec- tinental Congress of the ‘‘Rules for the retary of the Navy. Regulations issued Regulation of the Navy of the United under this authority are permanent Colonies’’ on November 28, 1775. The regulations of general applicability, as first issuance by the United States opposed to regulations issued by the Government which covered this subject Secretary under § 700.104. matter was ‘‘An Act for the Govern- ment of the Navy of the United States,’’ § 700.103 Purpose and effect of United enacted on March 2, 1799. This was fol- States Navy Regulations. lowed the next year by ‘‘An Act for the United States Navy Regulation is the Better Government of the Navy of the principle regulatory document of the United States.’’ Department of the Navy, endowed with (b) In the years preceding the Civil the sanction of law, as to duty, respon- War, twelve successor publications sibility, authority, distinctions and re- were promulgated under a number of lationships of various commands, offi- titles by the President, the Navy De- partment and the Secretary of the cials and individuals. Other directives Navy. A decision by the Attorney Gen- issued within the Department of the eral that the last of the pre-Civil War Navy shall not conflict with, alter or issuances was invalid led to the inclu- amend any provision of Navy Regula- sion in the 1862 naval appropriations tions. bill of a provision that ‘‘the orders, regulations, and instructions heretofore § 700.104 Statutory authority for pre- issued by the Secretary of the Navy be, scription of other regulations. and they are hereby, recognized as the The Secretary of the Navy may pre- regulations of the Navy Department, scribe regulations to carry out his or subject, however, to such alterations as her functions, powers and duties under the Secretary of the Navy may adopt, Title 10, United States Code.

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§ 700.105 Issuance of directives by made to Navy Regulations, he or she other officers and officials. shall forward a draft of the proposed Responsible officers and officials of addition, change or deletion, with a the Department of the Navy may issue, statement of the reasons therefor, to or cause to be issued, directives con- the Chief of Naval Operations via the cerning matters over which they exer- chain of command. The Chief of Naval cise command, control or supervision, Operations shall endeavor to obtain the which do not conflict with, alter or concurrence of the Commandant of the amend these regulations. Marine Corps, the Judge Advocate Gen- eral and appropriate offices and com- § 700.106 Control of administrative re- mands. Unresolved issues concerning quirements. such additions, changes or deletions (a) Directives will be issued with due shall be forwarded to the Secretary of regard for the imposition of workload the Navy for appropriate action. Any resulting therefrom and benefits or ad- additions, changes or deletions to the vantages to be gained. Issuance of new U.S. Navy Regulations must be ap- directives will be in accordance with proved by the Secretary of the Navy. the following: (b) Changes to Navy Regulations will (1) Directives which implement or be numbered consecutively and issued amplify directives from higher author- as page changes. Advance changes may ity will not be issued unless absolutely be used when required; these will be essential. numbered consecutively and incor- (2) Administrative reporting require- porated in page changes at frequent in- ments will not be imposed unless the tervals. expected value of the information to be gained is significantly greater than the cumulative burden imposed. Subpart B—The Department of the (b) Each officer or official issuing a Navy directive or imposing a reporting re- § 700.201 Origin and authority of the quirement will periodically, in accord- Department of the Navy. ance with instructions to be issued by appropriate authority, review such di- (a) The naval affairs of the country rective or report with a view toward began with the war for independence, the following: the American Revolution. On 13 Octo- (1) Reduction of directives by can- ber 1775, Congress passed legislation for cellation or consolidation; or ships. This, in effect, created the conti- (2) Reduction of reporting require- nental Navy. Two battalions of Ma- ments by elimination of the report, re- rines were authorized on 10 November duction in the frequency of the report, 1775. Under the Constitution, the First or combination with other reports. Congress on 7 August 1789 assigned re- (c) When issuance of a directive or a sponsibility for the conduct of naval af- tasking will result in imposition of ad- fairs to the War Department. On 30 ditional administrative requirements April 1798, the Congress established a on commands not within the chain of separate Department of the Navy with command or the issuing authority, the the Secretary of the Navy as its chief first common superior of the com- officer. On 11 July 1798, the United mands affected by the requirement States Marine Corps was established as must concur in the issuance. a separate service, and in 1834 was made a part of the Department of the § 700.107 Maintenance of Navy Regula- Navy. tions. (b) The National Security Act of 1947, (a) The Chief of Naval Operations is as amended, is the fundamental law responsible for maintaining Navy Reg- governing the position of the Depart- ulations, and for ensuring that Navy ment of the Navy in the organization Regulations conforms to the current for national defense. In 1949, the Act needs of the Department of the Navy. was amended to establish the Depart- When any person in the Department of ment of Defense as an Executive De- the Navy deems it advisable that addi- partment, and to establish the Depart- tions, changes or deletions should be ments of the Army, Navy and Air

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Force (formerly established as Execu- seizure or defense of advanced naval tive Departments by the 1947 Act) as bases and for the conduct of such land military departments within the De- operations as may be essential to the partment of Defense. prosecution of a naval campaign. In ad- (c) The Goldwater-Nichols Depart- dition, the Marine Corps shall provide ment of Defense Reorganization Act of detachments and organizations for 1986 further defined the roles of the service on armed vessels of the Navy, military departments within the De- shall provide security detachments for partment of Defense. In addition to es- the protection of naval property at tablishing the office of Vice Chairman naval stations and bases, and shall per- of the Joint Chiefs of Staff, and further form such other duties as the President emphasizing the operational chain of may direct. However, these additional command, the Act provided detailed duties may not detract from or inter- statements of the roles of the Sec- fere with the operations for which the retary of the Navy, the Chief of Naval Marine Corps is primarily organized. Operations, the Commandant of the (d) The Marine Corps shall develop, Marine Corps, and their respective in coordination with the Army and the principal assistants. Air Force, those phases of amphibious (d) The responsibilities and authority operations that pertain to the tactics, of the Department of the Navy are technique and equipment used by land- vested in the Secretary of the Navy, ing forces. and are subject to reassignment and (e) The Marine Corps is responsible, delegation by the Secretary. The Sec- in accordance with integrated joint retary is bound by the provisions of mobilization plans, for the expansion of law, the direction of the President and peacetime components of the Marine the Secretary of Defense and, along Corps to meet the needs of war. with all persons in charge of Govern- ment agencies, the regulations of cer- § 700.203 Composition. tain non-defense agencies addressing (a) The Department of the Navy is their respective areas of functional re- separately organized under the Sec- sponsibility. retary of the Navy. It operates under the authority, direction and control of § 700.202 Mission of the Department of the Secretary of Defense. the Navy. (b) The Department of the Navy is (a) The Navy, within the Department composed of the following: of the Navy, shall be organized, (1) The Office of the Secretary of the trained, and equipped primarily for Navy; prompt and sustained combat incident (2) The Office of the Chief of Naval to operations at sea. It is responsible Operations; for the preparation of naval forces nec- (3) The Headquarters, Marine Corps; essary for the effective prosecution of (4) The entire operating forces, in- war except as otherwise assigned, and, cluding naval aviation, of the Navy and in accordance with integrated joint of the Marine Corps, and the reserve mobilization plans, for the expansion of components of those operating forces; the peacetime components of the Navy (5) All field activities, headquarters, to meet the needs of war. forces, bases, installations, activities (b) The Navy shall develop aircraft, and functions under the control or su- weapons, tactics, technique, organiza- pervision of the Secretary of the Navy; tion and equipment of naval combat and and service elements. Matters of joint (6) The Coast Guard when it is oper- concern as to these functions shall be ating as a service in the Navy. coordinated between the Army, the Air Force and the Navy. § 700.204 The principal elements of the (c) The Marine Corps, within the De- Department of the Navy. partment of the Navy, shall be orga- (a) The Department of the Navy con- nized, trained, and equipped to provide sists of three elements; the Navy De- fleet marine forces of combined arms, partment, the Operating Forces of the together with supporting air compo- Navy and the Marine Corps, and the nents, for service with the fleet in the Shore Establishment.

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(b) The Navy Department refers to of Defense to provide for more effec- the central executive offices of the De- tive, efficient and economical adminis- partment of the Navy located at the tration and eliminate duplication; seat of Government. The Navy Depart- (f) The presentation and justification ment is organizationally comprised of of the position of the Department of the Office of the Secretary of the Navy, the Navy on the plans, programs and the Office of the Chief of Naval Oper- policies of the Department of Defense; ations, and the Headquarters, Marine (g) The effective supervision and con- Corps. In addition, the Headquarters, trol of the intelligence activities of the Coast Guard, is included when the Department of the Navy; and Coast Guard is operating as a service in (h) Such other activities as may be the Navy. prescribed by law or by the president (c) The operating forces of the Navy or Secretary of Defense. and the Marine Corps comprise the several fleets, seagoing forces, Fleet Ma- § 700.302 Responsibilities within the rine Forces, other assigned Marine Department of the Navy. Corps Forces, the Military Sealift The Secretary is the head of the De- Command and other forces and activi- partment of the Navy. The Secretary is ties that may be assigned thereto by responsible for, and has the authority the President or the Secretary of the necessary to conduct, all affairs of the Navy. Department of the Navy, including the (d) The shore establishment is com- following functions: prised of shore activities with defined (a) Recruiting; missions approved for establishment by (b) Organizing; the Secretary of the Navy. (c) Supplying; (d) Equipping (including research and Subpart C—The Secretary of the development); Navy (e) Training; (f) Servicing; THE SECRETARY OF THE NAVY (g) Mobilizing; § 700.301 Responsibilities of the Sec- (h) Demobilizing; retary of the Navy. (i) Administering (including the mo- The Secretary of the Navy is respon- rale and welfare of personnel); sible to the Secretary of Defense for: (j) Maintaining; (a) The functioning and efficiency of (k) The construction, outfitting and the Department of the Navy; repair of military equipment; and (b) The formulation of policies and (l) The construction, maintenance programs by the Department of the and repair of buildings, and interests in Navy that are fully consistent with na- real property necessary to carry out tional security objectives and policies the responsibilities specified in this ar- established by the President or the ticle. Secretary of Defense; (c) The effective and timely imple- § 700.303 Succession. mentation of policy, program and If the Secretary of the Navy dies, re- budget decisions and instructions of signs, is removed from office, is absent the President or the Secretary of De- or is disabled, the person who is high- fense relating to the functions of the est on the following list, and who is not Department of the Navy; absent or disabled, shall perform the (d) Carrying out the functions of the duties of the Secretary until the Presi- Department of the Navy so as to fulfill dent directs another person to perform (to the maximum extent practicable) those duties or until the absence or dis- the current and future operational re- ability ceases: quirement of the unified and specified (a) The Under Secretary of the Navy; combatant commands; (b) The Assistant Secretaries of the (e) Effective cooperation and coordi- Navy, in the order prescribed by the nation between the Department of the Secretary of the Navy and approved by Navy and the other military depart- the Secretary of Defense; ments and agencies of the Department (c) The Chief of Naval Operations;

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(d) The Commandant of the Marine (2) The Assistant Secretary of the Corps. Navy (Financial Management); (3) The Assistant Secretary of the § 700.304 Recommendations to Con- Navy (Manpower and Reserve Affairs); gress. (4) The Assistant Secretary of the After first informing the Secretary of Navy (Research, Development and Ac- Defense, the Secretary of the Navy quisition); may make such recommendations to (5) The Assistant Secretary of the Congress relating to the Department of Navy (Installations and Environment); Defense as he or she considers appro- and priate. (6) The General Counsel of the De- partment of the Navy. § 700.305 Assignment of functions. (b) The Staff Assistants: The Secretary of the Navy may as- (1) The Judge Advocate General of sign such functions, powers, and duties the Navy; as he or she considers appropriate to (2) The Naval Inspector General; the Under Secretary of the Navy and to (3) The Chief of Naval Research; the Assistant Secretaries of the Navy. (4) The Chief of Information; Officers of the Navy and the Marine (5) The Chief of Legislative Affairs; Corps shall, as directed by the Sec- (6) The Auditor General of the Navy; retary, report on any matter to the (7) The Director, Office of Program Secretary, the Under Secretary or any Appraisal; and Assistant Secretary. (8) Such other officers and officials as may be established by law or as the § 700.306 Assignment of duty and ti- Secretary of the Navy may establish or tles. designate. The Secretary of the Navy may: (a) Assign, detail and prescribe the § 700.311 Sole responsibilities. duties of members of the Navy and Ma- (a) The Office of the Secretary of the rine Corps and civilian personnel of the Navy shall have sole responsibility Department of the Navy; and within the Office of the Secretary of (b) Change the title of any officer or the Navy, the Office of the Chief of activity of the Department of the Navy Naval Operations and the Head- not prescribed by law. quarters, Marine Corps, for the following 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 operational test and evaluation, which are THE OFFICE OF THE SECRETARY OF THE the responsibilities of the Office of the NAVY Chief of Naval Operations and the Headquarters Marine Corps. § 700.310 Composition. (b) The following offices within the The function of the Office of the Sec- Office of the Secretary of the Navy are retary of the Navy is to assist the Sec- designated to conduct the functions retary in carrying out his or her re- specified in paragraph (a) of this sec- sponsibilities. The Office of the Sec- tion. No office or other entity may be retary of the Navy is composed of the established or designated within the following: Office of the Chief of Naval Operations (a) The Civilian Executive Assist- or the Headquarters, Marine Corps, to ants: conduct any of the functions specified (1) The Under Secretary of the Navy; in paragraph (a) of this section, except

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as noted in paragraph (a)(8) of this sec- Marine Corps such staff support as the tion. Chief of Naval Operations and the Com- (1) The Assistant Secretary of the mandant of the Marine Corps consider Navy (Research, Development and Ac- necessary to perform their respective quisition) is the Acquisition Executive duties and responsibilities. for the Department of the Navy. The (d) The vesting in the Office of the Assistant Secretary of the Navy (Re- Secretary of the Navy of the responsi- search, Development and Acquisition) bility for the conduct of a function (ASN(RD&A)) is responsible for re- specified in paragraph (a) of this sec- search, development and acquisition, tion does not preclude other elements except for military requirements and of the Department of the Navy (includ- operational test and evaluation, which ing the Office of the Chief of Naval Op- remain functions of the Office of the erations and the Headquarters, Marine Chief of Naval Operations and Head- Corps) from providing advice or assist- quarters Marine Corps. In addition to ance to the Chief of Naval Operations Acquisition Executive, ASN(RD&A) is and the Commandant of the Marine also the Navy Senior Procurement Ex- Corps, or otherwise participating in ecutive and Senior Department of the that function within the executive part Navy Information Resource Manage- of the Department under the direction ment Official. Responsibilities include of the office assigned responsibility for developing acquisition policy and pro- that function in the Office of the Sec- cedures for all Department of the Navy retary of the Navy. research, development, production, shipbuilding and production/logistics § 700.312 Authority over organiza- support programs; and Department of tional matters. the Navy international technology Subject to the approval or guidance transfer. of the Secretary of the Navy, the Civil- (2) The Auditor General is respon- ian Executive Assistants, the Chief of sible for the internal auditing function Naval Operations, the Commandant of within the Department of the Navy. the Marine Corps and the Staff Assist- (3) The Assistant Secretary of the ants are individually authorized to or- Navy (Financial Management) is re- ganize, assign and reassign responsibil- sponsible for comptrollership, includ- ities within their respective commands ing financial management, within the or offices, including the establishment Department of the Navy. and disestablishment of such compo- (4) The Naval Inspector General is re- nent organizations as may be nec- sponsible for the inspector general essary, subject to the following: function within the Department of the (a) The authority to disestablish may Navy. not be exercised with respect to any or- (5) The Chief of Legislative Affairs is ganizational component of the Depart- responsible for legislative affairs with- ment established by law. in the Department of the Navy. (b) The Secretary retains the author- (6) The Chief of Information is re- ity to approve the establishment and sponsible for public affairs within the disestablishment of shore activities. Department of the Navy. (c) The Secretary shall: THE OFFICE OF THE SECRETARY OF THE (1) Prescribe the relationship of each NAVY/THE CIVILIAN EXECUTIVE AS- office or other entity established or SISTANTS designated under paragraph (b) of this section: § 700.320 The Civilian Executive As- (i) To the Chief of Naval Operations sistants. and the Office of the Chief of Naval Op- (a) The Civilian Executive Assist- erations: and ants, as identified in § 700.310, are as- (ii) To the Commandant of the Ma- signed department-wide responsibil- rine Corps and the Headquarters, Ma- ities essential to the efficient adminis- rine Corps; and tration of the Department of the Navy. (2) Ensure that each such office or (b) Each Civilian Executive Assist- entity provides the Chief of Naval Op- ants, within his or her assigned area of erations and the Commandant of the responsibility, is the principal civilian

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advisor and assistant to the Secretary § 700.324 The Assistant Secretary of on the administration of the affairs of the Navy (Manpower and Reserve the Department of the Navy. The Civil- Affairs). ian Executive Assistants carry out The Assistant Secretary of the Navy their duties with the professional as- (Manpower and Reserve Affairs) is 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 (2) Exercises broad supervision, gen- NAVY/THE STAFF ASSISTANTS eral guidance and coordination for all Department of the Navy inspection, § 700.330 The Staff Assistants. evaluation and appraisal organizations The Staff Assistants, as identified in to minimize duplication of efforts and § 700.310, assist the Secretary of the the number of necessary inspections; Navy, or one or more of the Civilian (3) Through analysis of available in- Executive Assistants, in the adminis- formation, identifies areas of weakness tration of the Navy. They supervise all in the Department of the Navy as they functions and activities internal to relate to matters of integrity and effi- their offices and assigned field activi- ciency and provides appropriate rec- ties, if any, and are responsible to the ommendations for improvement. To ac- Secretary or to one of the Civilian Ex- complish these functions, the Inspector ecutive Assistants for the utilization of General shall have unrestricted access, resources by, and the operating effi- by any means, to any information ciency of, all activities under their su- maintained by any naval activity pervision or command. Their duties are deemed necessary, unless specifically as provided by law or as assigned by restricted by the Secretary of the the Secretary. Navy;

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(4) Receives allegations of ineffi- the Department of the Navy relating to ciency, misconduct, impropriety, mis- patents, inventions, trademarks, copy- management or violations of law, and rights and royalty payments, and mat- investigates or refers such matters for ters connected therewith. investigation, as is appropriate; and (5) Serves as principal advisor to the § 700.334 The Chief of Information. Secretary of the Navy, the Chief of (a) The Chief of Information is the di- Naval Operations and the Commandant rect representative of the Secretary of of the Marine Corps on all inspection the Navy in all public affairs and inter- and investigation matters. nal relations matters. The Chief of In- (b) In addition, the Naval Inspector formation is authorized to implement General has various functions, includ- Navy public affairs and internal rela- ing (but not limited to): tions policies and to coordinate those (1) Providing of an alternative to the Navy and Marine Corps activities of normal chain of command channel for mutual interest. receipt of complaints of personnel; (b) The Chief of Naval Operations and (2) Serving as the official to whom the Commandant of the Marine Corps employees may complain without fear are delegated responsibilities for: of reprisal; (1) Conduct of their respective serv- (3) Cooperating with the Inspector ices’ internal information programs; General, Department of Defense; (2) Conduct of their respective serv- (4) Providing oversight of intel- ices’ community relations programs; ligence and special activities; and (5) Serving as the Department of the (3) Implementing the Secretary of Navy coordinator for fraud, waste and the Navy’s public affairs policy and di- efficiency matters; rectives. (6) Serving as Navy Program Man- (c) The Chief of Information will re- ager and focal point for the Depart- port to the Chief of Naval Operations ment of the Navy and Navy Hotline for support of the responsibilities out- programs; and lined in paragraph (b) of this section, (7) Designation as the centralized or- and will provide such staff support as ganization within the Department of the Chief of Naval Operations considers Defense to monitor and ensure the co- necessary to perform those duties and ordination of criminal, civil, adminis- responsibilities. trative and contractual remedies for (d) The Deputy Chief of Information all significant cases, including inves- for Marine Corps Matters may report tigation of fraud or corruption related directly to the Secretary regarding to procurement activities affecting the public information matters related Department of the Navy. solely to the Marine Corps. The Deputy Chief will promptly inform the Chief of § 700.333 The Chief of Naval Research. Information regarding the substance of (a) The Chief of Naval Research shall all independent contacts with the Sec- command the Office of the Chief of retary pertaining to Marine Corps mat- Naval Research, the Office of Naval Re- ters. The Deputy Chief of Information search, the Office of Naval Technology for Marine Corps Matters will report to and assigned shore activities. the Commandant of the Marine Corps (b) The Office of Naval Research shall for support of the responsibilities out- perform such duties as the Secretary of lined in paragraph (b) of this section, the Navy prescribes relating to: and will provide such staff support as (1) The encouragement, promotion, the Commandant considers necessary planning, initiation and coordination to perform those duties and respon- of naval research; sibilities. (2) The conduct of naval research in augmentation of and in conjunction § 700.335 The Chief of Legislative Af- with the research and development fairs. conducted by other agencies and offices The mission of the Chief of Legisla- of the Department of the Navy; and tive Affairs is to: (3) The supervision, administration (a) Plan, develop and coordinate rela- and control of activities within or for tionships between representatives of

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the Department of the Navy and mem- service, except an officer of the naval bers of committees of the United service who is serving as Chairman or States Congress and their staffs which Vice Chairman of the Joint Chiefs of are necessary in the transaction of offi- Staff. cial Government business (except appropriations matters) affecting the De- § 700.402 Succession. partment of the Navy; and When there is a vacancy in the posi- (b) Furnish staff support, advice and tion of Chief of Naval Operations, or assistance to the Secretary of the during the absence or disability of the Navy, the Chief of Naval Operations, Chief of Naval Operations: the Commandant of the Marine Corps (a) The Vice Chief of Naval Oper- and all other principal civilian and ations shall perform the duties of the military officials of the Department of Chief of Naval Operations until a suc- the Navy concerning congressional as- cessor is appointed or the absence or pects of the Department of the Navy disability ceases. policies, plans and programs (except (b) If there is a vacancy in the posi- appropriations matters). tion of Vice Chief of Naval Operations or the Vice Chief of Naval Operations is § 700.336 The Director, Office of Pro- gram Appraisal. absent or disabled, unless the President directs otherwise, the most senior offi- (a) The Director, Office of Program cer of the Navy in the Office of the Appraisal, directs, under the imme- Chief of Naval Operations who is not diate supervision of the Secretary of absent or disabled and who is not re- the Navy, the Office of Program Ap- stricted in the performance of duty praisal. shall perform the duties of the Chief of (b) The Office of Program Appraisal Naval Operations until a successor to will assist the Secretary in assuring the Chief of Naval Operations or the that existing and proposed Navy and Vice Chief of Naval Operations is ap- Marine Corps programs provide the op- pointed or until the absence or dis- timum means of achieving the objec- ability of the Chief of Naval Operations tives of the Department of the Navy. or Vice Chief of Naval Operations § 700.337 The Auditor General. ceases, whichever occurs first. (a) The Auditor General of the Navy § 700.403 Statutory authority and re- is responsible for: sponsibility of the Chief of Naval (1) Serving as Director of the Naval Operations. Audit Service; and (a) Except as otherwise prescribed by (2) Developing and implementing law, and subject to the statutory au- Navy internal audit policies, programs thority of the Secretary of the Navy to and procedures within the framework assign functions, powers and duties, of Government auditing standards. the Chief of Naval Operations performs (b) The Auditor General can provide duties under the authority, direction information and may provide assist- and control of the Secretary of the ance and support to the Chief of Naval Navy and is directly responsible to the Operations and the Commandant of the Secretary. Marine Corps to enable them to dis- (b) Subject to the authority, direc- charge their duties and responsibil- tion and control of the Secretary of the ities. Navy, the Chief of Naval Operations shall: Subpart D—The Chief of Naval (1) Preside over the Office of the Operations Chief of Naval Operations; (2) Transmit the plans and rec- § 700.401 Precedence. ommendations of the Office of the The Chief of Naval Operations, while Chief of Naval Operations to the Sec- so serving, has the grade of admiral. In retary and advise the Secretary with the performance of duties within the regard to such plans and recommenda- Department of the Navy, the Chief of tions; Naval Operations takes precedence (3) After approval of the plans or rec- above all other officers of the naval ommendations of the Office of the

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Chief of Naval Operations by the Sec- the Secretary of the Navy), training, retary, act as the agent of the Sec- servicing, mobilizing, demobilizing, ad- retary in carrying them into effect; ministering, and maintaining of the (4) Exercise supervision, consistent Navy, as will assist in the execution of with the statutory authority assigned any power, duty or function of the Sec- to commanders of unified or specified retary or the Chief of Naval Oper- combatant commands, over such of the ations; members and organizations of the Navy (2) Investigate and report upon the and the Marine Corps as the Secretary efficiency of the Navy and its prepara- determines; tion to support military operations by (5) Perform the duties prescribed for combatant commands; a member of the Armed Forces Policy (3) Prepare detailed instructions for Council and other statutory duties; and the execution of approved plans and su- (6) Perform such other military du- pervise the execution of those plans ties, not otherwise assigned by law, as and instructions; are assigned to the Chief of Naval Oper- (4) As directed by the Secretary or ations by the President, the Secretary of Defense or the Secretary of the the Chief of Naval Operations, coordi- Navy. nate the action of organizations of the (c) The Chief of Naval Operations Navy; and shall also perform the statutory duties (5) Perform such other duties, not prescribed for a member of the Joint otherwise assigned by law, as may be Chiefs of Staff. prescribed by the Secretary. (1) To the extent that such action (b) Except as otherwise specifically does not impair the independence of prescribed by law, the Office of the the Chief of Naval Operations in the Chief of Naval Operations shall be or- performance of duties as a member of ganized in such manner, and its mem- the Joint Chiefs of Staff, the Chief of bers shall perform such duties and have Naval Operations shall inform the Sec- such titles as the Secretary may pre- retary of the Navy regarding military scribe. advice rendered by members of the Joint Chiefs of Staff on matters affect- § 700.405 Delegated authority and re- ing the Department of the Navy. sponsibility. (2) Subject to the authority, direc- (a) The Chief of Naval Operations is tion and control of the Secretary of De- the principal naval advisor and naval fense, the Chief of Naval Operations executive to the Secretary of the Navy shall keep the Secretary of the Navy on the conduct of the naval activities fully informed of significant military of the Department of the Navy. operations affecting the duties and re- (b)(1) Internal to the administration sponsibilities of the Secretary of the of the Department of the Navy, the Navy. Chief of Naval Operations, consistent with the statutory authority assigned § 700.404 Statutory authority and 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; (10) To exercise authority for intel- (2) To determine current and future ligence within the Navy. requirements of the Navy (less Fleet (d) The Chief of Naval Operations, Marine Forces and other assigned Ma- under the direction of the Secretary of rine Corps forces) for manpower, mate- the Navy, shall exercise overall author- rial, weapons, facilities and services, ity throughout the Department of the including the determination of quan- Navy in matters related to: tities, military performance require- (1) The effectiveness of the support of ments and times, places and priorities the Operating Forces of the Navy and of need; assigned shore activities; (3) To exercise leadership in main- (2) The coordination and direction of taining a high degree of competence assigned Navy wide programs and func- among Navy officer, enlisted and civil- tions, including those assigned by high- ian personnel in necessary fields of spe- er authority; cialization, through education training (3) Matters essential to naval mili- and equal opportunities for personal tary administration, such as: advancement, and maintaining the mo- (i) Security; rale and motivation of Navy personnel (ii) Discipline; and the prestige of a Navy career; (iii) Communications; and (4) To plan and provide health care (iv) 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 [64 FR 56062, Oct. 15, 1999, as amended at 68 economy, except in those areas where FR 2697, Jan. 21, 2003] such responsibility rests with the Com- mandant of the Marine Corps; § 700.406 Naval Vessel Register, classi- (7) To determine the requirements of fication of naval craft, and status of naval forces and activities, to include ships and service craft. requirements for research, develop- (a) The Chief of Naval Operations ment, test, and evaluation to plan and shall be responsible for the Naval Ves- provide for the conduct of test and sel Register (except the Secretary of evaluation which are adequate and re- the Navy shall strike vessels from the sponsive to long range objectives, im- Register) and the assignment of classi- mediate requirements, and fiscal limi- fication for administrative purposes to tations; and to provide assistance to water borne craft and the designation the Assistant Secretary of the Navy of status for each ship and service (Research, Development and Acquisi- craft. tion) in the review and appraisal of the (b) Commissioned vessels and craft overall Navy program to ensure fulfill- shall be called ‘‘United States Ship’’ or ment of stated requirements; ‘‘U.S.S.’’ (8) To formulate Navy strategic plans (c) Civilian manned ships, of the and policies and participate in the for- Military Sealift Command or other mulation of Joint and combined stra- commands, designated ‘‘active status, 22

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in service’’ shall be called ‘‘United Commandant or the Assistant Com- States Naval Ship’’ or ‘‘U.S.N.S.’’ mandant is appointed or until the ab- (d) Ships and service craft designated sence or disability of the Commandant ‘‘active status, in service,’’ except those or the Assistant Commandant ceases, described by paragraph (c) of this sec- whichever occurs first. tion, shall be referred to by name, when assigned, classification, and hull § 700.503 Statutory authority and re- number (e.g., ‘‘HIGHPOINT PCH–1’’ or sponsibility of the Commandant of ‘‘YOGN–8’’). the Marine Corps. (e) The Chief of Naval Operations (a) Except as otherwise prescribed by shall designate hospital ships and med- law and subject to the statutory au- ical aircraft as he or she deems nec- thority of the Secretary of the Navy to essary. Such designation shall be in assign functions, powers and duties, compliance with the Geneva Conven- the Commandant of the Marine Corps tion for the Amelioration of the Condi- performs duties under the authority, tions of Wounded, Sick and Ship direction and control of the Secretary wrecked Members of the Armed Forces of the Navy and is directly responsible at Sea of 12 August 1949. The Chief of to the Secretary. Naval Operations shall ensure compli- (b) Subject to the authority, direc- ance with the notice shall ensure com- tion and control of the Secretary of the pliance with the notice provisions of Navy, the Commandant of the Marine that Convention. Corps shall: (1) Preside over the Headquarters, Subpart E—The Commandant of Marine Corps; the Marine Corps (2) Transmit the plans and recommendations of the Headquarters, § 700.501 Precedence. Marine Corps, to the Secretary and ad- The Commandant of the Marine vise the Secretary with regard to such Corps, while so serving, has the grade plans and recommendations; of general. In the performance of duties (3) After approval of the plans or rec- within the Department of the Navy, ommendations of the Headquarters, the Commandant of the Marine Corps Marine Corps, by the Secretary, act as takes precedence above all other offi- the agent of the Secretary in carrying cers of the Marine Corps, except an of- them into effect; ficer of the Marine Corps who is serv- (4) Exercise supervision, consistent ing as Chairman or Vice Chairman of with the statutory authority assigned the Joint Chiefs of Staff. to commanders of unified or specified combatant commands, over such of the § 700.502 Succession. members and organizations of the Navy When there is a vacancy in the office and the Marine Corps as the Secretary of Commandant of the Marine Corps, or determines; during the absence or disability of the (5) Perform the duties prescribed for Commandant: a member of the Armed Forces Policy (a) The Assistant Commandant of the Council and other statutory duties; and Marine Corps shall perform the duties (6) Perform such other military du- of the Commandant until a successor is ties, not otherwise assigned by law, as appointed or the absence or disability are assigned to the Commandant of the ceases; or Marine Corps by the President, the (b) If there is a vacancy in the office Secretary of Defense or the Secretary of the Assistant Commandant of the of the Navy. Marine Corps or the Assistant Com- (c) The Commandant of the Marine mandant is absent or disabled, unless Corps shall also perform the statutory the President directs otherwise, the duties prescribed for a member of the most senior officer of the Marine Corps Joint Chiefs of Staff. in the Headquarters, Marine Corps, (1) To the extent that such action who is not absent or disabled and who does not impair the independence of is not restricted in the performance of the Commandant of the Marine Corps duty shall perform the duties of the in the performance of duties as a mem- Commandant until a successor to the ber of the Joint Chiefs of Staff, the

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Commandant of the Marine Corps shall such manner, and its members shall 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 supervise the execution of those plans programs as assigned. 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 exercise authority for intel- Marine Corps, shall be organized in ligence within the Marine Corps.

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(6) To plan for and determine the § 700.602 The Commandant of the present and future needs, both quan- Coast Guard. titative and qualitative, for manpower, (a) The Commandant of the Coast including reserve personnel and civil- Guard is the senior officer of the ian personnel, of the United States Ma- United States Coast Guard. rine Corps. This includes responsibility (b) When reporting to the Secretary for leadership in maintaining a high of the Navy, the Commandant will re- degree of competence among Marine port to the Chief of Naval Operations. Corps officer and enlisted personnel (c) The Chief of Naval Operations and Marine Corps civilian personnel in shall represent the Coast Guard before necessary fields of specialization the Joint Chiefs of Staff. through education, training and equal § 700.603 Duties and responsibilities. opportunities for personal advancement; and for leadership in maintain- In exercising command over the ing the morale and motivation of Ma- Coast Guard while operating as a serv- rine Corps personnel and the prestige ice of the Navy, the Commandant shall: (a) Organize, train, prepare and main- of a career in the Marine Corps. tain the readiness of the Coast Guard [64 FR 56062, Oct. 15, 1999, as amended at 68 to function as a specialized service in FR 2697, Jan. 21, 2003] the Navy for the performance of national defense missions, as directed; Subpart F—The United States (b) Plan for and determine the present and future needs of the Coast Coast Guard (When Oper- Guard, both quantitative and quali- ating as a Service in the tative, for personnel, including reserve Navy) personnel; (c) Budget for the Coast Guard, ex- § 700.601 Relationship and operation cept as may be otherwise directed by as a service in the Navy. the Secretary of the Navy; (a) Upon the declaration of war or (d) Plan for and determine the sup- when the President directs, the Coast port needs of the Coast Guard for Guard shall operate as a service in the equipment, materials, weapons or com- Navy, and shall be subject to the orders bat systems, supplies, facilities, main- of the Secretary of the Navy. While so tenance and supporting services; operating as a service in the Navy, and (e) Exercise essential military ad- to the extent practicable, Coast Guard ministration of the Coast Guard. This operations shall be integrated and uni- includes, but is not limited to, such matters as discipline, communications, form with Navy operation. personnel records and accounting, con- (b) Whenever the Coast Guard oper- forming, as practicable, to Navy proce- ates as a service in the Navy: dures; (1) Applicable appropriations of the (f) In conjunction with the Director Coast Guard to cover expenses shall be of Naval Intelligence, and the National available for transfer to the Depart- Intelligence Community, where appro- ment of the Navy and supplemented, as priate, establish and maintain an intel- required, from applicable appropria- ligence and security capability to pro- tions of the Department of the Navy; vide support for the maritime defense (2) Personnel of the Coast Guard zones, port security, narcotics interdic- shall be eligible to receive gratuities, tion, anti-terrorist activity, fishery ac- medals and other insignia of honor on tivity, pollution monitoring and other the same basis as personnel in the Coast Guard missions; naval service or serving in any capac- (g) Enforce or assist in enforcing Fed- ity with the Navy; and eral laws on and under the high seas (3) To the extent practicable, Coast and waters subject to the jurisdiction Guard personnel, ships, aircraft and fa- of the United States; (h) Administer, promulgate and en- cilities will be utilized as organized force regulations for the promotion of Coast Guard units. safety of life and property on and under the high seas and waters subject to the

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jurisdiction of the United States. This such an officer shall be added to form applies to those matters not specifi- his or her official title. cally delegated by law to some other [64 FR 56062, Oct. 15, 1999, as amended at 68 executive department; FR 2697, Jan. 21, 2003] (i) Develop, establish, maintain and operate, with due regard to the require- § 700.702 Responsibility and authority ments of national defense, aids to mar- of commanders. itime navigation, ice breaking facili- (a) Commanders shall be responsible ties, for the promotion of safety on, for the satisfactory accomplishment of under and over the high seas and wa- the mission and duties assigned to ters subject to the jurisdiction of the their commands. Their authority shall United States; be commensurate with their respon- (j) Engage in oceanographic surveys sibilities. Normally, commanders shall exercise authority through their imme- in conjunction with the Office of the diate subordinate commanders, but Oceanographer of the Navy; and they may communicate directly with (k) Continue in effect under the Sec- any of their subordinates. retary of the Navy those other func- (b) Commanders shall ensure that tions, powers and duties vested in the subordinate commands are fully aware Commandant by appropriate orders and of the importance of strong, dynamic regulations of the Secretary of Trans- leadership and its relationship to the portation on the day prior to the effec- overall efficiency and readiness of tive date of transfer of the Coast Guard naval forces. Commanders shall exer- to the Department of the Navy until cise positive leadership and actively specifically modified or terminated by develop the highest qualities of leader- the Secretary of the Navy. ship in persons with positions of authority and responsibility throughout Subpart G—Commanders In Chief their commands. (c) Subject to orders of higher au- and Other Commanders thority, and subject to the provisions of § 700.106 of these regulations, com- TITLES AND DUTIES OF COMMANDERS manders shall issue such regulations § 700.701 Titles of commanders. and instructions as may be necessary for the proper administration of their (a) The commander of a principal or- commands. ganization of the operating forces of (d) Commanders shall hold the same the Navy, as determined by the Chief of relationship to their flagships, or to Naval Operations, or the officer who shore activities of the command in has succeeded to such command as pro- which their headquarters may be lo- vided elsewhere in these regulations, cated, in regard to internal administra- shall have the title ‘‘Commander.’’ The tion and discipline, as to any other name of the organization under the ship or shore activity of their com- command of such an officer shall be mands. added to form his or her official title, e.g., ‘‘Commander, U.S. Atlantic Fleet.’’ § 700.703 To announce assumption of command. Commander, U.S. Atlantic Fleet, Com- mander, U.S. Pacific Fleet, and Com- (a) Upon assuming command, commander, U.S. Naval Forces Europe, manders shall so advise appropriate su- may also be referred to as a ‘‘Geo- periors, and the units of their commands. graphic Fleet Commander.’’ (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 ‘‘Commander,’’ (1) Senior commanders of other ‘‘Commandant,’’ ‘‘Commanding General’’ United States armed services; or other appropriate title. The name of (2) Officials of other federal agencies; the organization under the command of and

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(3) Officials of foreign governments. thereto which is beyond their capacity or authority; § 700.704 Readiness. (d) Intelligence information which Commanders shall take all prac- may be of value; ticable steps to maintain their com- (e) Any battle, engagement or other mands in a state of readiness to per- significant action involving units of form their missions. In conformity their commands; with the orders and policies of higher (f) Any important service or duty authority, they shall: performed by persons or units of their (a) Organize the forces and resources commands; and under their command and assign duties (g) Unexecuted orders and matters of to their principal subordinate com- interest upon being relieved of commanders; mand. (b) Prepare plans for the employment of their forces to meet existing and STAFFS OF COMMANDERS foreseeable situations; (c) Collaborate with the commanders § 700.710 Organization of a staff. of other United States armed services (a) The term ‘‘staff’’ means those offi- and with appropriate officials of other cers and other designated persons as- federal agencies and foreign govern- signed to a commander to assist him or ments located within the area encom- her in the administration and oper- passed by their commands; ation of his or her command. (d) Maintain effective intelligence and keep themselves informed of the (b) The officer detailed as chief of political and military aspects of the staff and aide to a fleet admiral or ad- national and international situation; miral normally shall be a vice admiral (e) Make, or cause to be made, nec- or a rear admiral. The officer detailed essary inspections to ensure the readi- as chief of staff and aide to a vice ad- ness, effectiveness and efficiency of the miral or rear admiral shall normally be components of their commands; and a rear admiral or a captain. The detail- (f) Develop, in accordance with direc- ing of a vice commander or a deputy to tives issued by higher authority, train- a commander shall be reserved for se- ing strategies and plans for their com- lected commanders. An officer detailed mands. as chief staff officer to another officer shall normally not be of the same § 700.705 Observance of international grade as that officer. law. (c) The staff shall be organized into At all times, commanders shall ob- such divisions as may be prescribed by serve, and require their commands to the commander concerned or by higher observe, the principles of international authority. These divisions shall con- law. Where necessary to fulfill this reform in nature and designation, as sponsibility, a departure from other practicable and as appropriate, to provisions of Navy Regulations is au- those of the staffs of superiors. thorized. (d) The staff of a flag or general officer may include one or more personal § 700.706 Keeping immediate superiors aides. informed. Commanders shall keep their imme- § 700.711 Authority and responsibil- diate superiors appropriately informed ities of officers of a staff. of: (a) The chief of staff and aide or chief (a) The organization of their com- staff officer, under the commander, mands, the prospective and actual shall be responsible for supervising and movements of the units of their com- coordinating the work of the staff and mands, and the location of their head- shall be kept informed of all matters quarters; 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

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or chief staff officer while he or she is Personnel, as appropriate, of such ac- executing the duties of that office. tion. (b) The officers of a staff shall be re- (b) If the designating commander de- sponsible for the performance of those sires the commanding officer of staff duties assigned to them by the com- enlisted personnel to possess authority mander and shall advise the com- to convene courts-martial, the commander on all matters pertaining mander should request the Judge Advo- thereto. In the performance of their cate General to obtain such authoriza- staff duties they shall have no com- tion from the Secretary of the Navy. mand authority of their own. In carrying out such duties, they shall act § 700.723 Administration and dis- for, and in the name of, the com- cipline: Separate and detached mander. command. Any flag or general officer in com- ADMINISTRATION AND DISCIPLINE mand, any officer authorized to convene general courts-martial, or the § 700.720 Administration and dis- senior officer present may designate cipline: Staff embarked. organizations which are separate or de- In matters of general discipline, the tached commands. Such officer shall staff of a commander embarked and all state in writing that it is a separate or enlisted persons serving with the staff detached command and shall inform shall be subject to the internal regula- the Judge Advocate General of the actions and routine of the ship. They tion taken. If authority to convene shall be assigned regular stations for courts-martial is desired for the com- battle and emergencies. Enlisted per- manding officer or officer in charge of sons serving with the staff shall be as- such separate or detached command, signed to the ship for administration the officer designating the organiza- and discipline, except in the case of a tion as separate or detached shall re- staff embarked for passage only, and quest the Judge Advocate general to provided in that case that an organiza- obtain authorization from the Sec- tion exists and is authorized to act for retary of the Navy. such purposes.

§ 700.721 Administration and dis- Subpart H—The Commanding cipline: Staff based ashore. Officer When a staff is based ashore, the en- COMMANDING OFFICERS IN GENERAL listed persons serving with the staff shall, when practicable, be assigned to § 700.801 Applicability. an appropriated activity for purposes 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 ad- (a) The responsibility of the com- ministrative command. manding officer for his or her com- (a) When it is not practicable to as- mand is absolute, except when, and to sign enlisted persons serving with the the extent, relieved therefrom by com- staff of a commander to an established petent authority, or as provided other- activity for administration and dis- wise in these regulations. The author- cipline, the commander may designate ity of the commanding officer is com- an officer of the staff to act as the mensurate with his or her responsi- commanding officer of such persons bility. While the commanding officer and shall notify the Judge Advocate may, at his or her discretion, and when General and the Commandant of the not contrary to law or regulations, del- Marine Corps, or the Chief of Naval egate authority to subordinates for the

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execution of details, such delegation of and shall immediately initiate an in- authority shall in no way relieve the vestigation. commanding officer of his or her con- (b) Should an investigation indicate tinued responsibility for the safety, that such person is not a fugitive from well-being, and efficiency of the entire justice or has not committed or at- command. tempted to commit an offense, he shall (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 command from territory of the foreign or her subordinates a rigid compliance state, or that he is a citizen or subject with the regulations governing the re- of that state. ceipt, accounting, and expenditure of (c) If the investigation indicates that public money and materials, and the such person has committed or at- implementation of improved manage- tempted to commit an offense punishment techniques and procedures. able under the authority of the com- (d) The commanding officer and his manding officer, the latter shall take or her subordinates shall exercise lead- such action as he deems necessary. ership through personal example, (d) If the investigation indicates that moral responsibility, and judicious at- such a person is a fugitive from justice, tention to the welfare of persons under or has committed or attempted to com- their control or supervision. Such lead- mit an offense which requires actions ership shall be exercised in order to beyond the authority of the com- achieve a positive, dominant influence manding officer, the latter shall, at the on the performance of persons in the first opportunity, deliver such person, Department of the Navy. together with a statement of the circumstances, to the proper civil au- § 700.804 Organization of commands. thorities. All commands and other activities of (e) In all cases under paragraph (d) of the Department of the Navy shall be this section, a report shall be made organized and administered in accord- promptly to the Chief of Naval Oper- ance with law, United States Navy ations or the Commandant of the Ma- Regulations, and the orders of com- rine Corps, as appropriate. petent authority. All orders and instructions of the commanding officer § 700.810 Rules for visits. shall be in accordance therewith. (a) Commanding officers are responsible for the control of visitors to their § 700.809 Persons found under incrimi- commands and shall comply with the nating circumstances. relevant provisions of Department of (a) The commanding officer shall the Navy concerning classified infor- keep under restraint or surveillance, as mation and physical security. necessary, any person not in the armed (b) Commanding officers shall take services of the United States who is such measures and impose such restric- found under incriminating or irregular tions on visitors as are necessary to circumstances within the command, safeguard the classified material under

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their jurisdiction. Arrangements for § 700.816 The American National Red general visiting shall always be made Cross. with due regard for physical security (a) Pursuant to the request of the and based on the assumption that for- Secretary of the Navy, and subject to eign agents will be among the visitors. such instructions as the Secretary may (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 Personnel or the Commandant of the (3) To furnish services and supplies Marine Corps or, in the case of medical which are necessary and are not other- services, to the Commander, Naval wise, or are insufficiently, available to Medical Command. the personnel of the command. (c) Activities and personnel of the (b) Personal commercial solicitation American National Red Cross in areas and the conduct of commercial trans- subject to naval jurisdiction shall con- actions are governed by policies of the form to such administrative regula- Department of Defense. tions as may be prescribed by appropriate naval authority. § 700.812 Postal matters. (d) Red Cross personnel shall be con- Commanding officers shall ensure sidered to have the status of commis- that mail and postal funds are adminis- sioned officers, subject to such restric- tered in accordance with instructions tions as may be imposed by the Chief of issued by the Postmaster General and Naval Personnel or the Commandant of approved for the naval service by the the Marine Corps. Chief of Naval Operations, and instructions issued by the Chief of Naval Oper- § 700.819 Records. ations, the Chief of Naval Personnel, or The commanding officer shall require the Commandant of the Marine Corps, that records relative to personnel, ma- as appropriate; and that postal clerks terial and operations, as required by or other persons authorized to handle current instructions, are maintained mail perform their duties strictly in properly by those responsible therefor. accordance with those instructions. § 700.822 Delivery of personnel to civil § 700.815 Deaths. authorities and service of subpoena The commanding officer, in the event or other process. of the death of any person within his or (a) Commanding officers or other per- her command, shall ensure that the sons in authority shall not deliver any cause of death and the circumstances person in the naval service to civil au- under which death occurred are estab- thorities except as provided by the lished, that the provisions of the Man- Manual of the Judge Advocate General. ual of the Judge Advocate General are (b) Commanding officers are author- adhered to in documenting the cause ized to permit the service of subpoenas and circumstances, and that the appro- or other process as provided by the priate casualty report is submitted. Manual of the Judge Advocate General.

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§ 700.826 Physical security. § 700.832 Environmental pollution. (a) The commanding officer shall The commanding officer shall cooper- take appropriate action to safeguard ate with Federal, state and local gov- personnel, to prevent unauthorized ac- ernmental authorities in the preven- cess to installations, equipment, mate- tion, control and abatement of environ- rials and documents, and to safeguard mental pollution. If the requirements them against acts of sabotage, damage, of any environmental law cannot be theft, or terrorism. achieved because of operational consid- (b) The commanding officer shall erations, insufficient resources or take action to protect and maintain other reason, the commanding officer the security of the command against shall report to the immediate superior dangers from fire, windstorms, or other acts of nature. in the chain of command. The commanding officer shall be aware of exist- § 700.827 Effectiveness for service. ing policies regarding pollution con- The commanding officer shall: trol, and should recommend remedial (a) Exert every effort to maintain the measures when appropriate. command in a state of maximum effectiveness for war or other service con- § 700.834 Care of ships, aircraft, vehicles and their equipment. sistent with the degree of readiness as may be prescribed by proper authority. The commanding officer shall cause Effectiveness for service is directly re- such inspections and tests to be made lated to the state of personnel and ma- and procedures carried out as are pre- terial readiness; and scribed by competent authority, to- (b) Make him or herself aware of the gether with such others as he or she progress of any repairs, the status of deems necessary, to ensure the proper spares, repair parts and other compo- preservation, repair, maintenance and nents, personnel readiness and other operation of any ship, aircraft, vehicle, factors or conditions that could lessen and their equipment assigned to his or the effectiveness of his or her com- her command. mand. When the effectiveness is less- ened appreciably, that fact shall be re- § 700.835 Work, facilities, supplies, or ported to appropriate superiors. services for other Government departments, State or local govern- § 700.828 Search by foreign authori- ments, foreign governments, private ties. parties and morale, welfare, and (a) The commanding officer shall not recreational activities. permit a ship under his or her com- (a) Work may be done for or on facili- mand to be searched on any pretense ties, supplies, or services furnished to whatsoever by any person representing departments and agencies of the Fed- a foreign state, nor permit any of the eral and State governments, local gov- personnel within the confines of his or ernments, foreign governments, private her command to be removed from the parties, and morale, welfare, and rec- command by such person, so long as he reational activities with the approval has the capacity to repel such act. If of a commanding officer provided: force should be exerted to compel sub- (1) The cost does not exceed limita- mission, the commanding officer is to tions the Secretary of the Navy may resist that force to the utmost of his or approve or specify; and her power. (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 reimbursable funding arrangements have been COMMANDING OFFICERS AFLOAT made. (d) Work, facilities, supplies, or serv- § 700.840 Unauthorized persons on ices furnished non-appropriated fund board. activities classified as instrumental- The commanding officer shall satisfy ities of the United States in the Navy him or herself that there is no unau- Comptroller Manual shall be funded in thorized person on board before pro- accordance with regulations of the ceeding to sea or commencing a flight. Comptroller of the Navy. (e) Supplies or services may be fur- § 700.841 Control of passengers. nished to naval vessels and military (a) Control of passage in and pro- aircraft of friendly foreign govern- tracted visits to aircraft and ships of ments (unless otherwise provided by the Navy by all persons, within or law or international treaty or agree- without the Department of the Navy, ment): shall be exercised by the Chief of Naval (1) On a reimbursable basis without Operations. an advancement of funds, when in the (b) Nothing in this section shall be best interest of the United States: interpreted as prohibiting the senior (i) Routine port services (including officer present from authorizing the pilotage, tugs, garbage removal, passage in ships and aircraft of the linehandling and utilities) in terri- Navy by such persons as he or she torial waters or waters under United judges necessary in the public interest States control. or in the interest of humanity. The (ii) Routine airport services (includ- senior officer present shall report the ing air traffic control, parking, serv- circumstances to the Chief of Naval icing and use of runways). Operations when he or she gives such (iii) Miscellaneous supplies (includ- authorization. ing fuel, provisions, spare parts, and general stores) but not ammunition. § 700.842 Authority over passengers. Supplies are subject to approval of the Except as otherwise provided in these cognizant fleet or force commanders regulations or in orders from com- when provided overseas. petent authority, all passengers in a (iv) With approval of Chief of Naval ship or aircraft of the naval service are Operations in each instance, overhauls, subject to the authority of the com- repairs, and alterations together with manding officer and shall conform to necessary equipment and its installa- the internal regulations and routine of tion required in connection therewith, the ship or aircraft. The commanding to vessels and military aircraft. officer of such ship or aircraft shall (2) Routine port and airport services take no disciplinary action against a may be furnished at no cost to the for- passenger not in the naval service, eign government concerned where such other than that authorized by law. The services are provided by persons of the commanding officer may, when he or

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she deems such an action to be nec- § 700.847 Responsibility of a master of essary for the safety of the ship or air- an in-service ship of the Military craft or of any persons embarked, sub- Sealift Command. ject a passenger not in the naval serv- (a) In an in-service ship of the Mili- ice to such restraint as the cir- tary Sealift Command, the master’s re- cumstances require until such time as sponsibility is absolute, except when, delivery to the proper authorities is and to the extent, relieved therefrom possible. A report of the matter shall by competent authority. The authority be made to an appropriate superior of of the master is commensurate with the passenger. the master’s responsibility. The master § 700.844 Marriages on board. is responsible for the safety of the ship and all persons on board. He or she is The commanding officer shall not responsible for the safe navigation and perform a marriage ceremony on board technical operation of the ship and has his or her ship or aircraft. He or she paramount authority over all persons shall not permit a marriage ceremony on board. He or she is responsible for to be performed on board when the ship the preparation of the abandon ship or aircraft is outside the territory of bill and has exclusive authority to the United States, except: order the ship abandoned. The master (a) In accordance with local laws and the laws of the state, territory, or dis- may, using discretion, and when not trict in which the parties are domi- contrary to law or regulation, delegate ciled, and authority for operation of shipboard (b) In the presence of a diplomatic or functions to competent subordinates. consular official of the United States, However, such delegation of authority who has consented to issue the certifi- shall in no way relieve the master of cates and make the returns required by continued responsibility for the safety, the consular regulations. well-being, and efficiency of the ship. (b) All orders and instructions of the § 700.845 Maintenance of logs. master shall be in accordance with ap- (a) A deck log and an engineering log propriate laws of the United States, shall be maintained by each ship in and all applicable orders and regula- commission, and by such other ships tions of the Navy, Military Sealift and craft as may be designated by the Command, and the Office of Personnel Chief of Naval Operations. Management. A master who departs (b) A compass record shall be main- from the orders or instructions of com- tained as an adjunct to the deck log. petent authority or takes official ac- An engineer’s bell book shall be main- tion contrary to such orders or instruc- tained as an adjunct to the engineering tions, shall report immediately the cir- log. cumstances to the authority from (c) The Chief of Naval Operations whom the prior orders or instructions shall prescribe regulations governing were received. the contents and preparation of the deck and engineering logs and adjunct § 700.848 Relations with merchant 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 until the extremity of the ship last to NAVAL STATIONS AND SHIPYARDS leave the dock clears the sill, and the ship is pointed fair for leaving the dry- § 700.871 Responsibility for safety of dock, when the ship’s commanding offi- ships and craft at a naval station or cer shall assume responsibility for the shipyard. safety and control of the ship. (a) The commanding officer of a (e) When a naval ship is to be naval station or shipyard shall be re- drydocked in a private shipyard under sponsible for the care and safety of all a contract being administered by a su- ships and craft at such station or ship- pervisor of shipbuilding, the respon- yard not under a commanding officer sibilities of the commanding officer are or assigned to another authority, and the same as in the case of drydocking for any damage that may be done by or in a naval shipyard. The responsibil- to them. In addition, the commanding ities for the safety of the actual officer of a naval station or shipyard drydocking, normally assigned to the shall be responsible for the safe execu- commanding officer of a naval shipyard tion of work performed by that activ- through the docking officer, will be as- ity upon any ship located at the activ- signed by contract to the contractor. ity. The supervisor of shipbuilding is re- (b) It shall be the responsibility of sponsible, however, for ensuring that the commanding officer of a ship in the contractor facilities, methods, op- commission which is undergoing over- erations, and qualifications meet the haul, or which is otherwise immo- standards of efficiency and safety pre- bilized at a naval station or shipyard, scribed by Navy directives. to request such services as are nec- (f) If the ship is elsewhere than at a essary to ensure the safety of the ship. naval station or shipyard, the relation- The commanding officer of the naval ship between the commanding officer station or shipyard shall be responsible and the supervisor of shipbuilding, or for providing requested services in a other appropriate official, shall be the timely and adequate manner. same as that between the commanding (c) When a ship or craft not under her officer and the commanding officer of a own power is being moved by direction naval station or naval shipyard as of the commanding officer of a naval specified in this article. station or shipyard, that officer shall be responsible for any damage that § 700.872 Ships and craft in drydock. may result therefrom. The pilot or (a) The commanding officer of a ship other person designated for the purpose in drydock shall be responsible for ef- shall be in direct charge of such move- fecting adequate closure, during such ment, and all persons on board shall periods as they will be unattended, of cooperate with and assist the pilot as all openings in the ship’s bottom upon necessary. Responsibility for such ac- which no work is being undertaken by tions in a private shipyard will be as- the docking activity. The commanding signed by contract to the contractor. officer of the docking activity shall be (d) When a ship operating under her responsible for the closing, at the end own power is being drydocked, the of working hours, of all valves and commanding officer shall be fully re- other openings in the ship’s bottom sponsible for the safety of his ship upon which work is being undertaken until the extremity of the ship first to by the docking activity, when such enter the drydock reaches the dock sill closing is practicable. and the ship is pointed fair for entering (b) Prior to undocking, the com- the drydock. The docking officer shall manding officer of a ship shall report then take charge and complete the to the docking officer any material docking, remaining in charge until the changes in the amount and location of ship has been properly landed, bilge weights on board which have been blocks hauled, and the dock pumped made by the ship’s force while in dock, down. In undocking, the docking offi- and shall ensure, and so report, that all cer shall assume charge when flooding sea valves and other openings in the the dock preparatory to undocking is ship’s bottom are properly closed. The started, and shall remain in charge level of water in the dock shall not be

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permitted to rise above the keel blocks (2) Inspect the ship as soon after re- prior to receipt of this report. The porting for duty as practicable, and fre- above valves and openings shall be quently thereafter, in order to keep tended during flooding of the dock. him or herself informed of the state of (c) When a ship or craft, not in com- her preparation for service. If, during mission, is in a naval drydock, the pro- the course of these inspections he or visions of this article shall apply, ex- she notes an unsafe or potentially un- cept that the commanding officer of safe condition, he or she shall report the docking activity or his representa- such fact to the commander of the tive shall act in the capacity of the naval shipyard or the supervisor of commanding officer of the ship or shipbuilding and to his or her superior craft. for resolution; (d) When a naval ship or craft is in (3) Keep him or herself informed as to drydock in a private shipyard, respon- the progress of the work being done, in- sibility for actions normally assigned cluding tests of equipment, and make by the commanding officer of the dock- such recommendations to the coming activity will be assigned by con- mander of the naval shipyard or the su- tract to the contractor. pervisor of shipbuilding as he or her she deems appropriate; § 700.873 Inspection incident to com- (4) Ensure that requisitions are sub- missioning of ships. mitted for articles to outfit the ship which are not otherwise being pro- When a ship is to be commissioned, vided; the authority designated to place such (5) Prepare the organization of the ship in commission shall, just prior to ship; commissioning, cause an inspection to (6) Train the nucleus crew to effec- be made to determine the cleanliness tively and efficiently take charge of and readiness of the ship to receive its and operate the ship upon commis- crew and outfit. In the case of the de- sioning; and livery of a ship by a contractor, the (7) Make such reports as may be re- above inspection shall precede accept- quired by higher authority, and include ance of the ship. A copy of the report of therein a statement of any deficiency this inspection shall be furnished the in material or personnel. officer detailed to command the ship (b) If the prospective commanding of- and to appropriate commands. ficer does not consider the ship in proper condition to be commissioned at the SPECIAL CIRCUMSTANCES/PROSPECTIVE time the commander of the naval ship- COMMANDING OFFICERS yard or the supervisor of shipbuilding signifies his intention of transferring § 700.880 Duties of the prospective commanding officer of a ship. the ship to the prospective commanding officer, he or she shall report (a) Except as may be prescribed by that conclusion with his reasons there- the Chief of Naval Operations, the pro- for, in writing, to the commander of spective commanding officer of a ship the naval shipyard or the supervisor of not yet commissioned shall have no shipbuilding and to the appropriate independent authority over the prepa- higher authority. ration of the ship for service by virtue (c) If the ship is elsewhere than at a of his assignment to such duty, until naval shipyard, the relationship be- the ship is commissioned and placed tween the prospective commanding of- under his or her command. The pro- ficer and the supervisor of ship- spective commanding officer shall: building, or other appropriate official, (1) Procure from the commander of shall be the same as that between the the naval shipyard or the supervisor of prospective commanding officer and shipbuilding the general arrangement the commander of a naval shipyard as plans of the ship, and all pertinent in- specified in this article. formation relative to the general con- (d) The Chief of Naval Operations dition of the ship and the work being shall be responsible for providing the undertaken on the hull, machinery and commanding officer or prospective equipment, upon reporting for duty; commanding officer of a naval nuclear

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

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on post, or at other times prescribed by any naval aircraft or waterborne craft, the senior patrol officer. The senior pa- Navy or Marine Corps activity or sta- trol officer shall ensure that the provi- tion. sions of this paragraph are strictly ob- (ii) Under no circumstances shall the served and shall report promptly in person seeking asylum be surrendered writing to the senior officer present all to foreign jurisdiction or control, un- violations of these provisions that may less at the personal direction of the come to his or her notice. All officers Secretary of the Navy or higher au- and enlisted personnel of the patrol thority. Persons seeking political asy- shall report to the senior patrol officer lum should be afforded every reason- all violations of the provisions of this able care and protection permitted by paragraph on the part of those under the circumstances. them. (2) In territories under foreign jurisdiction (including foreign territorial § 700.923 Precautions for health. seas, territories, and possessions): The senior officer present shall take (i) Temporary refuge shall be granted precautions to preserve the health of for humanitarian reasons on board a the persons under his or her authority. naval aircraft or waterborne craft, He or she shall obtain information re- Navy or Marine Corps activity or sta- garding the healthfulness of the area tion, only in extreme or exceptional and medical facilities available therein circumstances wherein life or safety of and shall adopt such measures as are a person is put in imminent danger, required by the situation. such as pursuit by a mob. When temporary refuge is granted, such protec- § 700.924 Medical or dental aid to per- tion shall be terminated only when di- sons not in the naval service. rected by the Secretary of the Navy or The senior officer present may re- higher authority. quire the officers of the Medical Corps (ii) A request by foreign authorities and Dental Corps under his or her au- for return of custody of a person under thority to render emergency profes- the protection of temporary refuge will sional aid to persons not in the naval be reported to the CNO or Commandant service when such aid is necessary and of the Marine Corps. The requesting demanded by the laws of humanity or foreign authorities will be informed the principles of international cour- that the case has been referred to high- tesy. er authorities for instructions. (iii) Persons whose temporary refuge § 700.934 Exercise of power of consul. 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 (i) At his or her request, an applicant appropriate, will be informed by the for asylum will be received on board most expeditious means of all action

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taken pursuant to paragraphs (a)(1)(i) sonnel embarked, or when placed on and (a)(1)(ii) of this section, as well as duty by such officer. the attendant circumstances. Tele- (3) When senior officer at the scene of phone or voice communications will be a riot or other emergency, or when used where possible, but must be con- placed on duty by such officer. firmed as soon as possible with an immediate precedence message, informa- § 700.1026 Authority of an officer who tion to the Secretary of State (for ac- succeeds to command. tions taken pursuant to paragraphs (a) An officer who succeeds to com- (a)(2)(i) and (a)(2)(v) of this section, mand due to incapacity, death, depar- also make the appropriate American ture on leave, detachment without re- Embassy or Consular Office an infor- lief or absence due to orders from com- mation addressee). If communication petent authority of the officer detailed by telephone or voice is not possible, to command, has the same authority notification will be effected by an im- and responsibility as the officer whom mediate precedence message, as de- he or she succeeds. scribed above. The Chief of Naval Oper- (b) An officer who succeeds to com- ations or Commandant of the Marine mand during the temporary absence of Corps will cause the Secretary of the the commanding officer shall make no Navy and the Deputy Director for Op- changes in the existing organization, erations of the National Military Com- and shall endeavor to have the routine mand Center to be notified without and other affairs of the command car- delay. ried on in the usual manner. (b) Personnel of the Department of (c) When an officer temporarily suc- the Navy shall neither directly nor in- ceeding to command signs official cor- directly invite persons to seek asylum respondence, the word ‘‘Acting’’ shall or temporary refuge. appear below his or her signature. § 700.1038 Authority of a sentry. Subpart J—Precedence, Authority and Command A sentry, within the limits stated in his or her orders, has authority over all AUTHORITY persons on his or her post. DETAIL TO DUTY § 700.1020 Exercise of authority. (a) All persons in the naval service on § 700.1052 Orders to active service. active service, and those on the retired (a) No person who is on leave of ab- list with pay, and transferred members sence or not on active service shall be of the Fleet Reserve and the Fleet Ma- ordered into active service or on duty rine Corps Reserve, are at all times without permission of the Com- subject to naval authority. While on mandant of the Marine Corps, or the active service they may, if not on leave Chief of Naval Personnel, as appro- of absence except as noted below, on priate, except: the sick list, taken into custody, under (1) In the case of a person on leave of arrest, suspended from duty, in con- absence, by the officer who granted the finement or otherwise incapable of dis- leave or a superior, or charging their duties, exercise author- (2) By the senior officer present on a ity over all persons who are subordi- foreign station. nated to them. (b) In the event that the senior offi- (b) A person in the naval service, al- cer present of a foreign station issues though on leave, may exercise author- any orders as contemplated by this ar- ity: ticle, he or she shall report the facts, (1) When in a naval ship or aircraft including the reasons for issuing such and placed on duty by the commanding orders, to the Commandant of the Ma- officer or aircraft commander. rine Corps or the Chief of Naval Per- (2) When in a ship or aircraft of the sonnel, without delay. armed services of the United States, (c) Retired officers of the Navy and other than a naval ship or aircraft, as Marine Corps may be ordered to active the commanding officer of naval per- service, with their consent, in time of

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peace. In time of war or a national § 700.1057 Command of an air activity. emergency, such retired officers may, (a) The officer detailed to command a at the discretion of the Secretary of naval aviation school, a naval air sta- the Navy, be ordered to active service. tion, or a naval air unit organized for § 700.1053 Commander of a task force. flight tactical purposes shall be an officer of the line in the navy, designated (a) A geographic fleet commander, as a naval aviator or naval flight offi- and any other naval commander, may cer, eligible for command at sea. detail in command of a task force, or (b) For the purposes of Title 10 U.S.C. other task command, any eligible offi- § 5942, a naval air training squadron is cer within his or her command whom not considered to be a naval aviation he or she desires. All other officers or- school or a naval air unit organized for dered to the task force or the task command shall be considered subordi- flight tactical purposes. The officer de- nate to the designated commander. tailed to command a naval air training squadron or an air unit organized for (b) All orders issued under the au- administrative purposes shall be a line thority of this article shall continue in officer of the naval service, designated effect after the death or disability of as a naval aviator or naval flight offi- the officer issuing them until they are cer, eligible for command. If a naval revoked by his or her successor in com- air training squadron has been des- mand or higher authority. ignated a multi-service training squad- (c) The powers delegated to a com- ron, the officer detailed to command mander by this article are not con- that squadron may be a line officer ferred on any other officer by virtue of from any armed service designated as the fact that he or she is the senior of- the equivalent of a naval aviator naval ficer present. flight officer and otherwise eligible to [64 FR 56062, Oct. 15, 1999, as amended at 68 command an aviation squadron or unit FR 2697, Jan. 21, 2003] under that officer’s pertinent service regulations. § 700.1054 Command of a naval base. (c) The officer detailed to command a The officer detailed to command a naval air activity of a technical nature naval base shall be an officer of the on shore may be an officer of the line line in the Navy, eligible for command in the navy not eligible for command at sea. at sea, but designated as a naval aviator or a naval flight officer or des- § 700.1055 Command of a naval ship- ignated for aeronautical engineering yard. 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 aviation unit of the Marine Corps nor § 700.1056 Command of a ship. shall an officer of the Marine Corps (a) The officer detailed to command a normally be detailed to command an commissioned ship shall be an officer aviation unit of the Navy. Aircraft of the line in the Navy eligible for com- units of the Marine Corps may, how- mand at sea. ever, be assigned to ships or to naval (b) The officer detailed to command air activities in the same manner as an aircraft carrier, an aircraft tender, aircraft units of the navy and, con- or a ship with a primary task of oper- versely, aircraft units of the navy may ating or supporting aircraft shall be an be so assigned to Marine Corps air ac- officer of the line in the navy, eligible tivities. A group composed of aircraft for command at sea, designated as a units of the Navy and aircraft units of naval aviator or naval flight officer. the Marine Corps may be commanded

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either by an officer of the Navy or an OFFICIAL RECORDS officer of the Marine Corps. § 700.1121 Disclosure, publication and § 700.1058 Command of a submarine. security of official information. The officer detailed to command a (a) No person in the Department of submarine shall be an officer of the the Navy shall convey or disclose by line in the Navy, eligible for command oral or written communications, publication, graphic (including photo- at sea and qualified for command of graphic) or other means, any classified submarines. information except as provided in di- § 700.1059 Command of a staff corps rectives governing the release of such activity. information. Additionally, no person in the Department of the Navy shall com- Officers in a staff corps shall be de- municate or otherwise deal with for- tailed to command only such activities eign entities, even on an unclassified as are appropriate to their corps. basis, when this would commit the De- partment of the Navy to disclose clas- Subpart K—General Regulations sified military information except as may be required in that person’s offi- STANDARDS OF CONDUCT cial duties and only after coordination with and approval by a release author- § 700.1101 Demand for court-martial. ity designated by competent authority. Except as otherwise provided in the (b) No person in the Department of Uniform Code of Military Justice, no the Navy shall convey or disclose by person in the naval service may de- oral or written communication, publi- mand a court martial either on him or cation or other means except as may be required by his or her official duties, herself or on any other person in the any information concerning the De- naval service. partment of Defense or forces, or any § 700.1113 Endorsement of commercial person, thing, plan or measure per- product or process. taining thereto, where such information might be of possible assistance to Except as necessary during contract a foreign power; nor shall any person in administration to determine specifica- the Department of the Navy make any tion or other compliance, no person in public speech or permit publication of the Department of the Navy, in his or an article written by or for that person her official capacity, shall endorse or which is prejudicial to the interests of express an opinion of approval or dis- the United States. The regulations con- approval of any commercial product or cerned with the release of information process. to the public through any media will be as prescribed by the Secretary of the § 700.1120 Personal privacy and rights Navy. of individuals regarding their per- (c) No person in the Department of sonal records. the Navy shall disclose any informa- (a) Except as specifically provided in tion whatever, whether classified or this section, maintenance of personal unclassified, or whether obtained from records of individuals, and the release official records or within the knowl- of those records, shall be in accordance edge of the relator, which might aid or with the provisions of the Privacy Act be of assistance in the prosecution or and directives issued by the Secretary support of any claim against the United States. The prohibitions pre- of the Navy. scribed by the first sentence of this (b) Except as specifically provided in paragraph are not applicable to an offi- this section, the release of depart- cer or employee of the United States mental records to private parties shall who is acting in the proper course of, be in accordance with the provisions of and within the scope of, his or her offi- the Freedom of Information Act and dicial duties, provided that the disclo- rectives issued by the Secretary of the sure of such information is otherwise Navy. authorized by stature, Executive Order

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of the President or departmental regu- stroy them, or withhold them from lation. those persons authorized to have access (d) Any person in the Department of to them. the Navy receiving a request from the (b) Except as specifically provided in public for Department of the Navy this section, maintenance of personal records shall be governed by the provi- records of individuals, and the release sions of the Freedom of Information of those records, shall be in accordance Act and implementing directives issued with the provisions of the Privacy Act by the Secretary of the Navy. and directives issued by the Secretary (e) Persons in the Department of the of the Navy. Navy desiring to submit manuscripts (c) Except as specifically provided in to commercial publishers on profes- this section, the release of depart- sional, political or international sub- mental records to private parties shall jects shall comply with regulations be in accordance with the provisions of promulgated by the Secretary of the the Freedom of Information Act and di- Navy. rectives issued by the Secretary of the (f) No persons in the naval service on Navy. active duty or civilian employee of the Department of the Navy shall act as § 700.1128 Official records in civil correspondent of a news service or peri- courts. odical, or as a television or radio news (a) Department of the Navy personnel commentator or analyst, unless as- shall not provide official information, signed to such duty in connection with testimony, or documents, submit to the public affairs activities of the De- interview, or permit a view or visit, for partment of the Navy, or authorized by litigation purposes, without special the Secretary of the Navy. Except as written authorization. authorized by the Secretary of the (b) Department of the Navy personnel Navy, no person assigned to duty in shall not provide, with or without com- connection with public affairs activi- pensation, opinion or expert testimony ties of the Department of the Navy concerning official Department of De- shall receive any compensation for act- fense information, subjects, personnel ing as such correspondent, commen- or activities, except on behalf of the tator or analyst. United States or a party represented by the Department of Justice, or with § 700.1126 Correction of naval records. special written authorization.

(a) Any military record in the De- DUTIES OF INDIVIDUALS partment of the Navy may be corrected by the Secretary of the Navy, acting § 700.1138 Responsibilities concerning through the Board for Correction of marijuana, narcotics, and other Naval Records, when the Secretary controlled substances. considers that such action should be (a) All personnel shall endeavor to taken in order to correct an error or to prevent and eliminate the unauthor- remove an injustice. ized use of marijuana, narcotics and (b) Applications for corrections under other controlled substances within the this article may be made only after ex- naval service. haustion of all other administrative (b) The wrongful possession, use, in- remedies afforded by law or regulation. troduction, manufacture, distribution (c) Applications for such corrections and possession, or introduction with should be submitted to the Secretary intent to distribute, of a controlled of the Navy (Board for Correction of substance by persons in the naval serv- Naval Records) in accordance with pro- ice are offenses under Article 112a, Uni- cedural regulations established by the form Code of Military Justice. Except Secretary of the Navy and approved by for authorized medicinal or other au- the Secretary of Defense. thorized purposes, the possession, use, introduction, sale, or other transfer of § 700.1127 Control of official records. marijuana, narcotics or other con- (a) No person, without proper author- trolled substances on board any ship or ity, shall withdraw official records or aircraft of the Department of the Navy correspondence from the files, or de- or within any naval base, station or

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other place under the jurisdiction of craft, or in any vehicle of the Depart- the Department of the Navy by all per- ment of the Navy is prohibited. The sons is prohibited. transportation of alcoholic beverages (c) The term ‘‘controlled substance’’ for personal use ashore is authorized, means: a drug or other substance in- subject to the discretion of the officer cluded in Schedule I, II, III, IV, or V es- in command or officer in charge, or tablished by section 202 of the Com- higher authority, when the beverages prehensive Drug Abuse Prevention and are delivered to the custody of the offi- Control Act of 1970 (84 Stat. 1236), as cer in command or officer in charge of updated and republished under the pro- the ship, craft, or aircraft in sealed visions of that Act (21 U.S.C. 812). packages, securely packed, properly marked and in compliance with cus- § 700.1139 Rules for preventing colli- toms laws and regulations, and stored sions, afloat and in the air. in securely locked compartments, and (a) All persons in the naval service the transportation can be performed responsible for the operation of naval without undue interference with the ships, craft and aircraft shall diligently work or duties of the ship, craft, or air- observe the International Rules for craft. Whenever an alcoholic beverage Preventing Collisions at Sea (com- is brought on board any ship, craft, or monly called the COLREGS) (33 CFR aircraft for transportation for personal chapter I), Inland Navigation Rules (33 use ashore, the person who brings it on CFR chapter I), domestic and inter- board shall at that time file with the national air traffic regulations (14 CFR officer in command or officer in charge chapter I), and such other rules and of the ship, craft or aircraft, a state- regulations as may be established by ment of the quantity and kind of alco- the Secretary of Transportation or holic beverage brought on board, to- other competent authority for regu- gether with a certification that its im- lating traffic and preventing collisions portation will be in compliance with on the high seas, in inland waters or in customs and internal revenue laws and the air, where such laws, rules and reg- regulations and applicable State or ulations are applicable to naval ships local laws at the place of debarkation. and aircraft. In those situations where (b) The introduction, possession and such law, rule or regulation is not ap- use of alcoholic beverages for personal plicable to naval ships, craft or air- consumption or sale is authorized with- craft, they shall be operated with due in naval activities and other places regard for the safety of others. ashore under naval jurisdiction to the (b) Any significant infraction of the extent and in such manner as the Sec- laws, rules and regulations governing retary of the Navy may prescribe. traffic or designed to prevent collisions on the high seas, in inland waters, or in § 700.1165 Fraternization prohibited. the air which may be observed by per- (a) Personal relationships between of- sons in the naval service shall be ficer and enlisted members which are promptly reported to their superiors, unduly familiar and which do not re- including the Chief of Naval Operations spect differences in rank are inappro- or Commandant of the Marine Corps priate and violate long-standing tradi- when appropriate. tions of the naval service. (c) Reports need not be made under (b) When prejudicial to good order this article if the facts are otherwise and discipline or of a nature to bring reported in accordance with other di- discredit on the naval service, personal rectives, including duly authorized relationships are prohibited: safety programs. (1) Between an officer and an enlisted member which are unduly familiar and RIGHTS AND RESTRICTIONS do not respect differences in rank and grade; § 700.1162 Alcoholic beverages. (2) Between officer members which (a) Except as may be authorized by are unduly familiar and do not respect the Secretary of the Navy, the intro- differences in rank and grade where a duction, possession or use of alcoholic direct senior-subordinate supervisory beverages on board any ship, craft, air- relationship exists; and

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(3) Between enlisted members which PART 701—AVAILABILITY OF DE- are unduly familiar and do not respect PARTMENT OF THE NAVY differences in rank and grade where a RECORDS AND PUBLICATION OF direct senior-subordinate supervisory relationship exists. DEPARTMENT OF THE NAVY (c) Violation of this article may re- DOCUMENTS AFFECTING THE sult in administrative or punitive ac- PUBLIC tion. This article applies in its entirety to all regular and reserve personnel. Subpart A—Department of the Navy Free- dom of Information Act (FOIA) Pro- § 700.1166 Sexual harassment. gram (a) Sexual harassment will not be Sec. condoned or tolerated in the Depart- 701.1 Purpose. ment of the Navy. It is a form of arbi- 701.2 Navy FOIA website/FOIA handbook. 701.3 Applicability. trary discrimination which is unpro- 701.4 Responsibility and authority. fessional, unmilitary, and which ad- 701.5 Policy. versely affects morale and discipline 701.6 Reading rooms. and ultimately the mission effective- 701.7 Relationship between the FOIA and ness of the command involved. PA. 701.8 Processing FOIA requests. (b) Personnel who use implicit or ex- 701.9 Referrals. plicit sexual behavior to control, influ- 701.10 Processing requests received from ence or affect the career, promotion governmental officials. opportunities, duty assignments or pay 701.11 Processing specific kinds of records. of any other person are engaging in 701.12 FOIA appeals/litigation. sexual harassment. Naval personnel who make deliberate or repeated offen- Subpart B—FOIA Definitions and Terms sive verbal comments, gestures or 701.13 5 U.S.C. 552(a)(1) materials. physical contact of a sexual nature in 701.14 5 U.S.C. 552(a)(2) materials. the work environment are also engag- 701.15 5 U.S.C. 552(a)(3) materials. ing in sexual harassment. 701.16 Administrative appeal. 701.17 Affirmative information disclosure. 701.18 Agency record. § 700.1167 Supremacist activity. 701.19 Appellate authority. No person in the naval service shall 701.20 Discretionary disclosure. participate in any organization that es- 701.21 Electronic record. pouses supremacist causes; attempts to 701.22 Exclusions. 701.23 Executive Order 12958. create illegal discrimination based on 701.24 Federal agency. race, creed, color, sex, religion, or na- 701.25 5 U.S.C. 552, Freedom of Information tional origin; advocates the use of force Act (FOIA). or violence against the Government of 701.26 FOIA exemptions. the United States or the Government 701.27 FOIA fee terms location. of any state, territory, district, or pos- 701.28 FOIA request. session thereof, or the Government of 701.29 Glomar response. 701.30 Initial Denial Authority (IDA). any subdivision therein; or otherwise 701.31 Mosaic or compilation response. engages in efforts to deprive individ- 701.32 Perfected request. uals of their civil rights. The term 701.33 Public domain. ‘‘participate’’, as used in this article, in- 701.34 Public interest. cludes acts or conduct, performed alone 701.35 Reading room. or in concert with another, such as 701.36 Release authorities. demonstrating, rallying, fundraising, 701.37 Reverse FOIA. recruiting, training, or organizing or 701.38 Technical data. 701.39 Vaughn index. leading such organizations. The term ‘‘participate’’ also includes engaging in Subpart C—FOIA Fees any other activities in relation to such organizations or in furtherance of the 701.40 Background. objectives of such organizations when 701.41 FOIA fee terms. 701.42 Categories of requesters—applicable such activities are detrimental to good fees. order, discipline, or mission accom- 701.43 Fee declarations. plishment. 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 ‘‘any apprises the Director, Freedom of In- person’’ (U.S. citizen; foreigner, wheth- formation and Security Review, DoD of er living inside or outside the United same; responds to depositions and liti- States; partnerships; corporations; as- gation regarding DON FOIA policy Sec- sociations; and foreign and domestic retary of the Navy Instruction 5820.8A, governments) has the right enforceable Release of Information for Litigation by law, to access Federal agency Purposes and Testimony by DON Per- records, except to the extent that such sonnel; reviews/analyzes all proposed records (or portions thereof) are pro- FOIA legislation to determine its im- tected from disclosure by one or more pact on the DON; develops a Navy-wide of the nine FOIA exemptions or one of FOIA training program and serves as three special law enforcement exclu- training oversight manager; conducts sions. 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 Free- to CNO (N09B30). dom 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 Free- sory committee, to Congress, or to dom of Information Act Program,’’ re- other Federal agencies does not waive quires that each DoD Component pro- a FOIA exemption. vide an appropriate facility or facili- (4) Unauthorized disclosures. Exempt ties where the public may inspect and records disclosed without authoriza- copy or have copied the records held in tion by the appropriate DON official do their reading rooms. To comply, the not lose their exempt status. Navy FOIA website includes links that (5) Official versus personal disclosures. assist members of the public in locat- While authority may exist to disclose ing Navy libraries, online documents, records to individuals in their official and Navy electronic reading rooms capacity, the provisions of the instruc- maintained by SECNAV/CNO, CMC, tion in this part apply if the same indi- OGC, JAG and Echelon 2 commands. vidual seeks the records in a private or Although each of these activities will personal capacity. maintain their own document collec- (6) Distributing information. DON actions on their own servers, the Navy tivities are encouraged to enhance ac- FOIA website provides a common gate- cess to information by distributing in- way for all Navy online resources. To formation on their own initiative 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 ap- request, negotiations with the re- peals, 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) The requester Request withdrawn. 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 been determined that notification not subject to the FOIA). 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 of contact and telephone number in the § 701.10 Processing requests received referral letter. If that organization is from governmental officials. to respond directly to the requester, (a) Members of Congress. Many con- apprise the requester of the referral. stituents seek access to information (g) Within the DON/DoD, a DON ac- through their Member of Congress. tivity shall ordinarily refer a FOIA re- Members of Congress who seek access quest and a copy of the record it holds, to records on behalf of their con- but that was originated by another stituent are provided the same infor- DON/DoD activity or that contains sub- mation that the constituent would be stantial information obtained from entitled to receive. There is no need to that activity, to that activity for di- verify that the individual has author- rect response, after direct coordination ized the release of his/her record to the and obtaining concurrence from the ac- Congressional member, since the Pri- tivity. The requester shall be notified vacy Act’s ‘‘blanket routine use’’ for of such referral. In any case, DON ac- Congressional inquiries applies. tivities shall not release or deny such (b) Privileged release to U.S. Govern- records without prior consultation ment officials. DON records may be au- with the activity, except as provided in thenticated and released to U.S. Gov- paragraph (c) of this section. ernment officials if they are requesting (h) Activities receiving a referred re- them in their official capacity on be- quest shall place it in the appropriate half of Federal governmental bodies, processing queue based on the date it whether legislative, executive, admin- was initially received by the referring istrative, or judicial. To ensure ade- activity/agency. quate protection of these documents, (i) Agencies outside the DON that are DON activities shall inform officials subject to the FOIA. (1) A DON activity receiving records under the provisions may refer a FOIA request for any of this paragraph that those records record that originated in an agency are exempt from public release under outside the DON or that is based on in- FOIA. DON activities shall also mark formation obtained from an outside the records as ‘‘Privileged’’ and ‘‘Exempt agency to the agency for direct re- from Public Disclosure’’ and annotate sponse to the requester after coordina- any special handling instructions on tion with the outside agency, if that the records. Because such releases are agency is subject to FOIA. Otherwise, not made under the provisions of the

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FOIA, they do not impact on future de- (2) Processing classified documents cisions to release/deny requests for the originated by another activity. DON same records to other requesters. Ex- activities shall refer the request and amples of privileged releases 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 records’’ fected DON activity. response otherwise, then the purpose of (ii) Upon receiving the request, the this approach would be defeated. A affected activity shall review the re- Glomar response is a denial and exemp- quest for host nation relations, coordi- tion (b)(1) is cited and appeal rights are nate with Department of State as ap- 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 ex- JAG to review administrative appeals clude records from being considered of denials of FOIA requests on his be- agency records, unless they fall within half and prepare agency paperwork for one of the following categories: use by the DOJ in defending a FOIA (1) Objects or articles, such as struc- lawsuit. JAG is further authorized to tures, furniture, paintings, three-di- delegate this authority to a designated mensional models, vehicles, equipment, Assistant JAG. The authority of OGC parts of aircraft, ships, etc., whatever is further delegated to the Principal their historical value or value as evi- Deputy General Counsel, the Deputy dence. General Counsel, and the Associate (2) Anything that is not a tangible or General Counsel (Management). documentary record, such as an individual’s memory or oral communica- § 701.20 Discretionary disclosure. tion. The decision to release information (3) Personal records of an individual 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 not apply to exemptions (b)(1), (b)(3), before entering Government service; (b)(4), (b)(6) and (b)(7)(C). private materials brought into, cre- § 701.21 Electronic record. ated, or received in the office that were not created or received in the course of Records (including e-mail) which are transacting Government business, and created, stored, and retrieved by elec- work-related personal papers that are tronic means. not used in the transaction of Govern- ment business. § 701.22 Exclusions. (4) A record must exist and be in the The FOIA contains three exclusions possession and control of the DON at (c)(1), (c)(2) and (c)(3) which expressly the time of the request to be consid- authorize Federal law enforcement ered subject to this instruction and the agencies for especially sensitive FOIA. There is no obligation to create, records under certain specified cir- compile, or obtain a record to satisfy a cumstances to treat the records as not FOIA request. subject to the requirements of the (5) Hard copy or electronic records, FOIA. which are subject to FOIA requests under 5 U.S.C. 552(a)(3), and which are § 701.23 Executive Order 12958. available to the public through an es- Revoked Executive Order 12356 on Oc- tablished distribution system, or tober 14, 1995 and is the basis for claim- through the FEDERAL REGISTER, the ing that information is currently and National Technical Information Serv- properly classified under (b)(1) exemp- ice, or the Internet, normally need not tion of the FOIA. It sets forth new re- be processed under the provisions of quirements for classifying and declas- the FOIA. If a request is received for sifying documents. It recognizes both such information, DON activities shall the right of the public to be informed provide the requester with guidance, about the activities of its government inclusive of any written notice to the and the need to protect national secu- public, on how to obtain the informa- rity information from unauthorized or tion. However, if the requester insists untimely disclosure. that the request be processed under the FOIA, then process the request under 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 mem- essed and is received by the DON activ- ber of the public (U.S. or foreign cit- ity having possession and control over izen/entity), an organization, or a busi- the documents/information. ness, but not including a Federal agency or a fugitive from the law that ei- § 701.33 Public domain. ther 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 information, providing for setting the level of fees usually a corporation or other business for particular types of records. For ex- entity, that has supplied the agency ample, 5 U.S.C. 552 (a)(4)(A)(vi) enables with data on its policies, operations a Government agency such as the Gov- and products, seeks to prevent the ernment Printing Office (GPO) or the agency that collected the information National Technical Information Serv- 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 about organization could make a request that current events or that would be of cur- is for commercial use. Such situations rent interest to the public. Examples of must be addressed on a case-by-case news media entities include television basis. or radio stations broadcasting to the (b) Educational Institution refers to public at large, and publishers of peri- a pre-school, a public or private ele- odicals (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 ‘‘freelance’’ first 100 pages) when the request is journalists, they may be regarded as made by an educational institution working for a news organization if they whose purpose is scholarly research. can demonstrate a solid basis for ex- Requesters must reasonably describe pecting publication through that orga- the records sought. nization, even though not actually em- (2) Requesters must show that the re- ployed by it. A publication contract quest is being made under the auspices would be the clearest proof, but DON of a qualifying institution and that the activities may also look to the past records are not sought for commercial publication record of a requester in use, but in furtherance of scholarly re- 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 are search charges are likely to exceed 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.’’ 77

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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 Paper prints (engineering drawings), corporation and such citizen or cor- each ...... 1.50 poration certifies that the technical Paper reprints of microfilm indices, data requested is required to enable it each ...... 10 to submit an offer or determine whether it is capable of submitting an offer (4) Review Time. to provide the product to which the Hourly technical data relates to the United Type Grade rate States or a contractor with the United Clerical ...... E9/GS8 and below ...... $13.25 States. However, DON activities may Clerical Minimum E9/GS8 and below ...... 8.30 require the citizen or corporation to Charge. pay a deposit in an amount equal to Professional ...... 01 to 06/GS9 to GS15 ...... (**) ** not more than the cost of complying Executive ...... 07/GS16/ES1 or higher ..... ( ) with the request, which will be re- ** Rate to be established at actual hourly rate prior to search. (A minimum charge will be established at 1⁄2 Minimum funded upon submission of an offer by Charge) the citizen or corporation; (5) Other technical data records. (2) The release of technical data is re- Charges for any additional services not quested in order to comply with the specifically provided in paragraph (d) terms of an international agreement; of this section, consistent with Volume or, 11A of DoD 7000.14–R (NOTAL) shall be (3) The DON activity determines in made by DON activities at the fol- accordance with § 701.48 that such a lowing rates: waiver is in the interest of the United States. Minimum charge for office copy up to six im- (d) Fee rates. (1) Manual search. ages)—$3.50 Each additional image—$ .10 Hourly Each typewritten page—$3.50 Type Grade rate Certification and validation with seal, each—$5.20 Clerical ...... E9/GS8 and below ...... $13.25 Hand-drawn plots and sketches, each hour or Clerical (Minimum ...... 8.30 Charge). fraction Thereof—$12.00 Professional ...... 01 to 06/GS9 to GS15 ...... (**) Executive ...... 07/GS16/ES–1 and above (**) § 701.55 Processing FOIA fee remit- ** Rate to be established at actual hourly rate prior to tances. 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 § 701.56 Background. Diazo duplicate negative, per card .65 The FOIA is a disclosure statute When key punched and verified, per card .75 35mm roll film, per frame ...... 50 whose goal is an informed citizenry. 16mm roll film, per frame ...... 45 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 infor- parent: mation 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 consist- emption if the record is subsequently ently, not only when a record exists, requested by someone else. However, a but also when a record does not exist. FOIA exemption may be invoked to Otherwise, the pattern of using a ‘‘no withhold information that is similar or record’’ response when a record does related that has been the subject of a not exist, and a ‘‘refusal to confirm or discretionary release. deny’’ when a record does exist will (d) Initial Denial Authority (IDA) ac- itself disclose national security infor- tions. The decision to withhold information. 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 Informa- ‘‘ mation. tion 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 a intelligence investigations include record does not exist and a ‘‘refusal to background security investigations and 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’’ within of this section. If a proposed document 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. The official having cognizance of the viting public comment is not war- particular regulatory document in- ranted, he or she shall cause it to be volved, or having cognizance of the published in the FEDERAL REGISTER subject matter of a proposed document, with an invitation for the public to shall give full and prompt consider- submit comments in the form of writ- ation to any such petition. Such offi- ten data, views, or arguments during a cial may, at his or her absolute discre- specified period of not less than 30 days tion, grant the petitioner an oppor- following the date of publication. An tunity to appear, at his or her own ex- opportunity for oral presentation nor- pense, for the purpose of supporting the mally will not be provided, but may be petition, if this is deemed to be com- provided at the sole discretion of the patible with orderly conduct of public official having cognizance of the pro- business. The petitioner shall be ad- posed directive if he or she deems it to vised in writing of the disposition, and be in the best interest of the Depart- the reasons for the disposition, of any ment of the Navy or the public to do petition within the purview of this sec- so. After careful consideration of all tion. relevant matters presented within the period specified for public comment, Subpart F—Department of the the proposed document may be issued Navy Privacy Act Program in final form. After issuance, the adopted document, and a preamble ex- AUTHORITY: Pub. L. 93–579, 88 Stat 1896 (5 plaining the relationship of the adopt- U.S.C. 552a). ed document to the proposed and the SOURCE: 65 FR 31456, May 18, 2000, unless nature and effect of public comments, 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 (b) Notifying individuals if any systems of records contain a record per- published in the FEDERAL REGISTER for the guidance of the public, if required taining to them; under § 701.64(b). 1 Copies may be obtained: http:// www.whs.osd.mil/corres.htm. 2 See footnote 1 to § 701.100.

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(c) Verifying the identity of individ- Act between or among Department of uals who request their records before Defense (DoD) components, the Depart- the records are made available to ment of Defense is considered a single them; agency. For all other purposes, Depart- (d) Notifying the public of the exist- ment of the Navy is considered an ence and character of each system of agency within the meaning of Privacy records. Act. (e) Exempting systems of records Confidential source. A person or orga- from certain requirements of the Pri- nization who has furnished information vacy Act; and to the Federal Government either (f) Governing the Privacy Act rules under an express promise that the per- of conduct for Department of the Navy son’s or the organization’s identity will personnel, who will be subject to crimi- be held in confidence or under an im- nal penalties for noncompliance with 5 plied promise of such confidentiality if U.S.C. 552a, as amended by the Com- this implied promise was made before puter Matching Act of 1988. September 27, 1975. Defense Data Integrity Board. Consists § 701.101 Applicability. of members of the Defense Privacy This subpart and subpart G of this Board, as outlined in DoD Directive part apply throughout the Department 5400.11 and, in addition, the DoD In- of the Navy. It is also applicable to spector General or the designee, when contractors by contract or other le- convened to oversee, coordinate and gally binding action, whenever a De- approve or disapprove all DoD compo- partment of the Navy contract pro- nent computer matching covered by vides for the operation of a system of the Privacy Act. records or portion of a system of Disclosure. The transfer of any per- records to accomplish a Department of sonal information from a system of the Navy function. For the purposes of records by any means of communica- any criminal liabilities adjudged, any tion (such as oral, written, electronic, contractor or any employee of such mechanical, or actual review), to any contractor is considered to be an em- person, private entity, or government ployee of Department of the Navy. In agency, other than the subject of the case of a conflict, this subpart and sub- record, the subject’s designated agent part G of this part take precedence or the subject’s legal guardian. over any existing Department of the Federal personnel. Officers and em- Navy directive that deals with the per- ployees of the Government of the sonal privacy and rights of individuals United States, members of the uni- regarding their personal records, ex- formed services (including members of cept for disclosure of personal informa- 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 be- Access. The review or copying of a half. No rights are vested in the rep- record or parts thereof contained in a resentative of a deceased person under system of records by any individual. this instruction and the term ‘‘indi- Agency. For the purposes of dis- vidual’’ does not embrace an individual closing records subject to the Privacy acting in a non-personal capacity (for example, sole proprietorship or part- 3 Copies may be obtained: Chief of Naval nership). Operations, 2000 Navy Pentagon, Wash- Individual access. Access to informa- ington, DC 20350–2000. tion pertaining to the individual by the

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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 Word processing system. A combina- review authority for civilian official tion of equipment employing auto- personnel folders or records contained mated technology, systematic proce- in any other OPM record. dures, and trained personnel for the Risk assessment. An analysis which primary purpose of manipulating considers information sensitivity, vul- nerability, and cost to a computer fa- 4 See footnote 3 to § 701.101.

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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 (e) Let individuals request amend- notice does not meet your needs, con- ment of their records when discrep- tact the systems manager or Chief of ancies proven to be erroneous, un- Naval Operations (N09B30) with your timely, incomplete, or irrelevant are concerns so that amendment of the noted. system may be considered.

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§ 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 Act exemptions. training program and serve as training- (8) Conduct staff assistance visits oversight manager. within command and lower echelon (5) Conduct staff assistance visits commands to ensure compliance with within Department of the Navy to re- the Privacy Act. view compliance with 5 U.S.C. 552a and (9) Echelon 2 Privacy Act Coordina- this subpart and subpart G of this part. tors shall provide CNO (N09B30) with a (6) Coordinate and prepare responses complete listing of all Privacy Act Co- for Privacy Act requests received for ordinators under their jurisdiction. Office of the Secretary of the Navy Such information should include activ- records. ity name and address, office code, (b) Commandant of the Marine Corps name of Privacy Act Coordinator, com- (CMC). CMC is responsible for admin- mercial and DSN telephone number, istering and supervising the execution and FAX number, if applicable. of this subpart and subpart G of this (d) Release authority. Officials having part within the Marine Corps. The cognizance over the requested subject Commandant has designated the Direc- matter are authorized to respond to re- tor, Manpower Management Informa- quests for notification, access, and/or tion Systems Division (HQMC (Code amendment of records. These officials ARAD)) as the Privacy Act coordinator could also be systems managers (see for Headquarters, U.S. Marine Corps. § 701.104(g)). (c) Privacy Act Coordinator. Each ad- (e) Denial authority. Within the De- dressee is responsible for implementing partment of the Navy, the following and administering a Privacy Act pro- chief officials, their respective vice gram under this subpart and subpart G commanders, deputies, principal assist- of this part. Each addressee shall des- ants, and those officials specifically ignate a Privacy Act Coordinator to: designated by the chief official are au- (1) Serve as principal point of contact thorized to deny requests, either in on Privacy Act matters. whole or in part, for notification, ac- (2) Provide training for activity/com- cess and amendment, made under this mand personnel on the provisions of 5 subpart and subpart G of this part, U.S.C. 552a and this subpart and sub- when the records relate to matters part G of this part. within their respective areas of respon- (3) Issue implementing instruction sibility or chain of command: which designates the activity’s Privacy (1) Department of the Navy. Civilian Act Coordinator, Privacy Act records Executive Assistants; CNO; CMC; Chief disposition, Privacy Act processing of Naval Personnel; Commanders of the procedures, identification of Privacy Naval Systems Commands, Office of Act systems of records under their cog- Naval Intelligence, Naval Security

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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- the authority conferred here to other ations Notes (OPNAVNOTEs) 5211,6 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 that any additions or significant All officers authorized under Article 22, changes are submitted to CNO (N09B30) Uniform Code of Military Justice for approval and publication. The sys- (UCMJ) or designated in section 0120, tems of records should be maintained Manual of the Judge Advocate General in accordance with the systems notices (JAGINST 5800.7C),5 to convene general as published in the periodic Chief of courts-martial. Naval Operations Notes (ii) Commander, Naval Investigative (OPNAVNOTEs) 5211, ‘‘Current Privacy Service Command. Act Issuances.’’ (iii) Deputy Commander, Naval Legal (2) Maintain accountability records Service Command. of disclosures. (3) In the Operating Forces. All offi- (h) Department of the Navy employees. cers authorized by Article 22, Uniform Each employee of the Department of Code of Military Justice (UCMJ), or the Navy has certain responsibilities designated in section 0120, Manual of for safeguarding the rights of others. the Judge Advocate General (JAGINST These include: 5800.7C), to convene general courts- (1) Not disclosing any information martial. contained in a system of records by (f) Review authority. (1) The Assistant any means of communication to any Secretary of the Navy (Manpower and person or agency, except as authorized Reserve Affairs), is the Secretary’s des- by this subpart and subpart G of this ignee, and shall act upon requests for part. administrative review of initial denials (2) Not maintaining unpublished offi- of requests for amendment of records cial files which would fall under the related to fitness reports and perform- provisions of 5 U.S.C. 552a. ance evaluations of military personnel (3) Safeguarding the privacy of indi- (see § 701.111(c)(3)). viduals and confidentiality of personal (2) The Judge Advocate General and information contained in a system of General Counsel, as the Secretary’s records. designees, shall act upon requests for administrative review of initial denials § 701.105 Systems of records. of records for notification, access, or To be subject to this subpart and subpart G of this part, a ‘‘system of records’’ must consist of ‘‘records’’ that 5 Copies may be obtained: Judge Advocate General, Navy Department, 1322 Patterson are retrieved by the name, or some Avenue, SE, Suite 3000, Washington Navy Yard, Washington, DC 20374-5066. 6 See footnote 3 to § 701.101.

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other personal identifier, of an indi- the statute should also be identified. A vidual and be under the control of De- statute or E.O. authorizing a system of partment 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. (c) Authority to establish systems of (i) When an alteration or amendment records. Identify the specific Federal of an existing system is prepared pur- statute or E.O. of the President that suant to § 701.107(b) and (c), do the eval- authorizes maintaining each system of uation described in paragraph (e) of records. When a naval activity uses its this section. ‘‘internal housekeeping’’ statute, i.e., 5 (ii) Conduct the following reviews an- U.S.C. 301, Departmental Regulations, nually and be prepared to report, in ac- the naval instruction that implements cordance with § 701.104(c)(8), the results

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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 ensure the record which is being dis- records to ensure that the require- closed is accurate, relevant, timely, ments of § 701.115 have been met. and complete for the purposes it is (D) Actions of Department of the being maintained. Navy personnel that resulted in either (h) Federal government contractors—(1) Department of the Navy being found Applicability to Federal government con- civilly liable or a person being found tractors. (i) When a naval activity con- criminally liable under 5 U.S.C. 552a, to tracts for the operation of a system of determine the extent of the problem records to accomplish its function, the and find the most effective way of pre- activity must ensure compliance with venting the problem from occurring in this subpart and subpart G of this part the future. and 5 U.S.C. 552a. For the purposes of (E) Each system of records notice to the criminal penalties described in 5 ensure it accurately describes the sys- U.S.C. 552a, the contractor and its em- tem. Where major changes are needed, ployees shall be considered employees alter the system notice in accordance of the agency during the performance with § 701.107(b). If minor changes are of the contract. needed, amend the system notice pur- (ii) Consistent with parts 24 and 52 of suant to § 701.107(c). the Federal Acquisition Regulation (iii) Every even-numbered year, re- (FAR), contracts for the operation of a view a random sample of Department system of records shall identify specifi- of the Navy contracts that provide for cally the record system and the work the operation of a system of records to to be performed, and shall include in accomplish a Department of the Navy the solicitations and resulting contract function, to ensure the wording of each the terms as prescribed by the FAR. contract complies with the provisions (iii) If the contractor must use of 5 U.S.C. 552a and paragraph (h) of records that are subject to this subpart this section. and subpart G of this part to perform (iv) Every three years, beginning in any part of a contract, the contractor 1992, review the routine use disclosures activities are subject to this subpart associated with each system of records and subpart G of this part. to ensure the recipient’s use of the (iv) This subpart and subpart G of records continues to be compatible this part do not apply to records of a with the purpose for which the infor- contractor that are: mation was originally collected. (A) Established and maintained sole- (v) Every three years, beginning in ly to assist the contractor in making 1993, review each system of records for internal contractor management deci- which exemption rules have been estab- sions, such as records maintained by lished to determine whether each ex- the contractor for use in managing the emption is still needed. contract; (vi) When directed, send the reports through proper channels to the CNO 7 Copies may be obtained: OPNAV/SECNAV (N09B30). Directives Control Office, Washington Navy (f) Discontinued information require- Yard, Building 200, Washington, DC 20350– ments. (1) Immediately stop collecting 2000.

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(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; (C) Establish an internal system for (2) Train all personnel operating a reviewing contractor’s performance for system of records or using records from compliance with the Privacy Act; and a system of records in proper record se- (D) Provide for the biennial review of curity procedures. a random sample of contracts that are (3) Label information exempt from subject to this subpart and subpart G disclosure under this subpart and sub- of this part. part G of this part to reflect their sen- (2) Contracting procedures. The De- sitivity, such as ‘‘FOR OFFICIAL USE fense Acquisition Regulatory (DAR) ONLY,’’ ‘‘PRIVACY ACT SENSITIVE: Council, which oversees the implemen- DISCLOSE ON A NEED-TO-KNOW tation of the FAR within the Depart- BASIS ONLY,’’ or some other statement of Defense, is responsible for de- ment that alerts individuals of the sen- veloping the specific policies and pro- sitivity to the records. cedures for soliciting, awarding, and (4) Administer special administra- administering contracts that are sub- tive, physical, and technical safeguards ject to this subpart and subpart G of to protect records processed or stored this part and 5 U.S.C. 552a. in an automated data processing or (3) Contractor compliance. Naval ac- word processing system to protect tivities shall establish contract sur- them from threats unique to those en- veillance programs to ensure contrac- vironments. tors comply with the procedures estab- (b) Records disposal. (1) Dispose of lished by the DAR Council under the records from systems of records so as preceding subparagraph. to prevent inadvertent disclosure. Dis- (4) Disclosing records to contractors. posal methods are considered adequate Disclosing records to a contractor for if the records are rendered unrecogniz- use in performing a contract let by a able or beyond reconstruction (i.e., naval activity is considered a disclo- such as tearing, burning, melting, sure within Department of the Navy. chemical decomposition, burying, The contractor is considered the agent pulping, pulverizing, shredding, or mu- of Department of the Navy when re- tilation). Magnetic media may be

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cleared by completely erasing, over- altered when any one of the following writing, or degaussing the tape. actions occur or is proposed: (2) The transfer of large volumes of (1) A significant increase or change records (e.g., printouts and computer in the number or types of individuals cards) in bulk to a disposal activity about whom records are maintained. such as a Defense Reutilization and For example, a decision to expand a 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 records in the system. For example, Act systems of records. placing interactive computer terminals at regional offices when the system (a) Criteria for a new system of records. was formerly used only at the head- A new system of records is one for quarters would be an alteration. which no existing system notice has (5) A change in the manner in which EDERAL REG- been published in the F records are organized or in the method ISTER. If a notice for a system of by which records are retrieved. records has been canceled or deleted, (6) Combining record systems due to and it is determined that it should be a reorganization within Department of reinstated or reused, a new system no- the Navy. tice must be published in the FEDERAL (7) Retrieving by Social Security REGISTER. Advance public notice must Numbers (SSNs), records that pre- be given before a naval activity may viously were retrieved only by names begin to collect information for or use would be an alteration if the present a new system of records. The following notice failed to indicate retrieval by procedures apply: SSNs. An altered system of records (1) Describe in the record system no- must be published in the FEDERAL REG- tice the contents of the record system ISTER. Submission for an alteration and the purposes and routine uses for must contain a narrative statement, which the information will be used and the specific changes altering the sys- disclosed. tem, and the system of records notice. (2) The public shall be given 30 days (c) Criteria for amending a systems of to comment on any proposed routine records notice. Minor changes to pub- uses before the routine uses are imple- lished system of records notices are mented. considered amendments. All amend- (3) The notice shall contain the date ments should be forwarded to CNO the system of records will become ef- (N09B30) for publication in the FED- fective. ERAL REGISTER. When submitting an (b) Criteria for an alteration to a system amendment to a system of records no- of records notice. A system is considered tice, the naval activity must include a

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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 individuals must indicate the author- § 701.108 Collecting information about individuals. ity for soliciting the SSNs and whether it is mandatory for the individuals to (a) Collecting directly from the indi- provide their SSNs. E.O. 9397 requires vidual. To the greatest extent prac- federal agencies to use SSNs as numer- ticable, collect information for sys- ical identifiers for individuals in most tems of records directly from the indi- federal records systems, however, it vidual to whom the record pertains if does not make it mandatory for indi- the record may be used to make an ad- viduals to provide their SSNs. verse determination about the individ- (5) When entering military service or ual’s rights, benefits, or privileges civilian employment with the Depart- under the Federal programs. ment of the Navy, individuals must (b) Collecting information about indi- provide their SSNs. This is then the in- viduals from third persons. It might not 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- (7) A Department of the Navy activ- eral, State, or local government agency ity may request an individual’s SSN to deny an individual a right, benefit, even though it is not required by Fed- or privilege provided by law because eral statute, or is not for a system of the individual refuses to provide his or records in existence and operating her SSN. However, this prohibition prior to January 1, 1975. However, the does not apply if a Federal law requires separate Privacy Act Statement for that the SSN be provided, or the SSN the SSN, alone, or a merged Privacy is required by a law or regulation Act Statement covering both the SSN adopted before January 1, 1975, to verify the individual’s identity for a 8 Copies may be obtained: Office of Per- system of records established and in sonnel Management, 1900 E Street, Wash- use before that date. ington, DC 20415.

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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 interview, etc). If the information requested (4) On a separate form which the indi- will not be included in a system of vidual may keep. records, a Privacy Act Statement is § 701.109 Access to records. not required. (2) The Privacy Act Statement shall (a) Individual access to records. (1) include the following: Right of access. Only individuals who (i) The Federal law or E.O. that au- are subjects of records maintained in thorizes collecting the information systems of records and by whose per- (i.e., E.O. 9397 authorizes collection of sonal identifiers the records are re- SSNs); trieved have the right of individual ac- (ii) Whether or not it is mandatory cess under this subpart and subpart G for the individual to provide the re- of this part, unless they provide writ- quested information (It is only manda- ten authorization for their representa- tory when a Federal law or E.O. of the tive to act on their behalf. Legal President specifically imposes a re- guardians or parents acting on behalf quirement to furnish the information of a minor child also have the right of and provides a penalty for failure to do individual access under this subpart so. If furnishing information is a condi- and subpart G of this part. tion for granting a benefit or privilege (2) Notification of record’s existence. voluntarily sought by the individual, it Each naval activity shall establish pro- is voluntary for the individual to give cedures for notifying an individual, in the information.); response to his or her request, if a sys- (iii) The principle purposes for col- tem of records identified by him/her lecting the information; contains a record pertaining to the in- (iv) The routine uses that will be dividual. made of the information (i.e., to whom (3) Individual request for access. Indi- and why it will be disclosed outside the viduals shall address requests for ac- Department of Defense); and cess to records in systems of records to (v) The possible effects on the indi- the system manager or the office des- vidual if the requested information is not provided. ignated in the Department of the Navy (3) The Privacy Act Statement must compilation of system notices (periodic appear on the form used to collect the Chief of Naval Operations Notes information or on a separate form that (OPNAVNOTEs) 5211, ‘‘Current Privacy can be retained by the individual col- Act Issuances’’). lecting the information. If the informa- (4) Verifying identity. (i) An individual tion is collected by means other than a shall provide reasonable verification of form completed by the individual, i.e., identity before obtaining access to solicited over the telephone, the Pri- records. vacy Act Statement should be read to (ii) When requesting records in writ- the individual and if requested by the ing, naval activities may not insist individual, a copy sent to him/her. that a requester submit a notarized There is no requirement that the indi- signature. The courts have ruled that vidual sign the Privacy Act Statement. an alternative method of verifying

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identity must be established for indi- either designate the particular system viduals who do not have access to no- of records to be searched, or provide tary services. This alternative permits sufficient information for the system requesters to provide an unsworn dec- manager to identify the appropriate laration that states ‘‘I declare under system. Also, provide the individual perjury or penalty under the laws of with any other information needed for the United States of America that the obtaining consideration of his or her foregoing is true and correct.’’ request. (iii) When an individual seeks access (6) Granting individual access to in person, identification can be verified records. (i) Grant the individual access by documents normally carried by the to the original record (or exact copy) individual (i.e., identification card, without any changes or deletions, driver’s license, or other license, per- other than those made in accordance mit or pass normally used for identi- with § 701.113. fication purposes). (ii) Grant the individual’s request for (iv) When access is requested other an exact copy of the record, upon the than in writing, identity may be signed authorization of the individual, verified by the individual’s providing and provide a copy to anyone des- minimum identifying data such as full ignated by the individual. In either name, date and place of birth, or other case, the copying fees may be assessed information necessary to locate the to the individual pursuant to record sought. If the information § 701.109(b). sought is sensitive, additional identi- (iii) If requested, explain any record fying data may be required. Telephonic or portion of a record that is not un- requests should not be honored. derstood, as well as any changes or de- (v) Allow an individual to be accom- letions. panied by a person of his or her choice (7) Illegible or incomplete records. Do when viewing the record; however, re- not deny an individual access solely be- quire the individual to provide written cause the physical condition or format authorization to have the record dis- of the record does not make it readily cussed in front of the other person. available (i.e., when the record is in a (vi) Do not deny access to an indi- deteriorated state or on magnetic vidual who is the subject of the record tape). Either prepare an extract or re- solely for refusing to divulge his or her copy the document exactly. SSN, unless it is the only means of re- (8) Access by parents and legal guard- trieving the record or verifying iden- ians. (i) The parent of any minor, or tity. the legal guardian of any individual de- (vii) Do not require the individual to clared by a court of competent juris- explain why he or she is seeking access diction to be incompetent due to phys- to a record under this subpart and sub- ical or mental incapacity or age, may part G of this part. obtain access to the record of the (viii) Only a designated denial au- minor or incompetent individual if the thority may deny access. The denial parent or legal guardian is acting on must be in writing and contain the in- behalf or for the benefit of the minor or formation required by paragraph (d) of incompetent. However, with respect to this section. access by parents and legal guardians (5) Blanket requests not honored. Do to medical records and medical deter- not honor requests from individuals for minations about minors, use the fol- notification and/or access concerning lowing procedures: all Department of the Navy systems of (A) In the United States, the laws of records. In these instances, notify the the state where the records are located individual that requests for notifica- might afford special protection to cer- tion and/or access must be directed to tain medical records (i.e., drug and al- the appropriate system manager for cohol abuse treatment, and psychiatric the particular record system being re- records). The state statutes might quested, as indicated in the periodic apply even if the records are main- Chief of Naval Operations Notes tained by a naval medical facility. (OPNAVNOTEs) 5211, ‘‘Current Privacy (B) For installations located outside Act Issuances’’; and the request must the U.S., the parent or legal guardian 106

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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, considered Department of the Navy and advise the requester of your deci- records within the meaning of this sub- sion to grant/deny access within 30 part and subpart G of this part. These working days. documents are not systems of records (b) Reproduction fees. Normally, only that are subject to this subpart and one copy of any record or document subpart G of this part, if they are: will be provided. Checks or money or- (A) Maintained and discarded solely ders for fees should be made payable to at the discretion of the author; the Treasurer of the United States and

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deposited to the miscellaneous receipts (3) Deny the individual access to his of the treasury account maintained at or her medical and psychological the finance office servicing the activ- records if it is determined that access ity. could have an adverse affect on the (1) Fee schedules shall include only mental or physical health of the indi- the direct cost of reproduction and vidual. This determination normally shall not include costs of: should be made in consultation with a (i) Time or effort devoted to search- medical practitioner. If it is medically ing for or reviewing the record by indicated that access could have an ad- naval personnel; verse mental or physical effect on the (ii) Fees not associated with the ac- individual, provide the record to a tual cost of reproduction; medical practitioner named by the in- (iii) Producing a copy when it must dividual, along with an explanation of be provided to the individual without why access without medical super- cost under another regulation, direc- vision could be harmful to the indi- tive, or law; vidual. In any case, do not require the (iv) Normal postage; named medical practitioner to request (v) Transportation of records or per- the record for the individual. If, how- sonnel; or ever, the individual refuses or fails to (vi) Producing a copy when the indi- designate a medical practitioner, ac- vidual has requested only to review the cess shall be refused. The refusal is not record and has not requested a copy to considered a denial for reporting pur- keep, and the only means of allowing poses under the Privacy Act. review is to make a copy (e.g., the (d) Notifying the individual. Written record is stored in a computer and a denial of access must be given to the copy must be printed to provide indi- individual. The denial letter shall in- vidual access, or the naval activity clude: does not wish to surrender temporarily (1) The name, title, and signature of the original record for the individual to a designated denial authority; review). (2) The date of the denial; (2) Fee schedules. (3) The specific reason for the denial, (i) Office copy (per page)...... $.10 citing the appropriate subsections of 5 (ii) Microfiche (per fiche)...... $.25 U.S.C. 552a or this subpart and subpart (3) Fee waivers. Waive fees automati- G of this part authorizing the denial; cally if the direct cost of reproduction (4) The individual’s right to appeal is less than $15, unless the individual is the denial within 60 calendar days of seeking an obvious extension or dupli- the date the notice is mailed; and cation of a previous request for which (5) The title and address of the review he or she was granted a waiver. Deci- authority. sions to waive or reduce fees that exceed $15 are made on a case-by-case § 701.110 Amendment of records. basis. (c) Denying individual access. (1) Deny (a) Individual review and amendment. the record subject access to requested Encourage individuals to review peri- record only if it was compiled in rea- odically, the information maintained sonable anticipation of a civil action or about them in systems of records, and proceeding or is in a system of records to avail themselves of the amendment that has been exempt from the access procedures established by this subpart provisions of § 701.113. and subpart G of this part. (2) Deny the individual access only to (1) Right to amend. An individual may those portions of the record for which request to amend any record retrieved the denial will serve a legitimate gov- by his or her personal identifier from a ernment purpose. An individual may be system of records, unless the system refused access for failure to comply has been exempt from the amendment with established procedural require- procedures under this subpart. Amend- ments, but must be told the specific ments under this subpart and subpart reason for the refusal and the proper G of this part are limited to correcting access procedures. factual matters, not matters of opinion

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(i.e., information contained in evalua- quest to the extent necessary to meet tions of promotion potential or per- them. formance appraisals). When records (f) Time limits. Within 10 working days sought to be amended are covered by of receiving an amendment request, the another issuance, the administrative systems manager shall provide the in- procedures under that issuance must be dividual a written acknowledgement of exhausted before using the Privacy the request. If action on the amend- Act. In other words, the Privacy Act ment request is completed within the may not be used to avoid the adminis- 10 working days and the individual is trative procedures required by the so informed, no separate acknowledg- issuance actually covering the records ment is necessary. The acknowledg- in question. ment must clearly identify the request (2) In writing. Amendment requests and advise the individual when to ex- shall be in writing, except for routine pect notification of the completed ac- administrative changes, such as change tion. Only under exceptional cir- of address. cumstances should more than 30 work- (3) Content of amendment request. An ing days be required to complete the amendment request must include a de- action on an amendment request. scription of the information to be (g) Granting an amendment request in amended; the reason for the amend- whole or in part—(1) Notify the requester. ment; the type of amendment action To the extent the amendment request sought (i.e., deletion, correction, or ad- is granted, the systems manager shall dition); and copies of available docu- notify the individual and make the ap- mentary evidence supporting the re- propriate amendment. quest. (2) Notify previous recipients. Notify (b) Burden of proof. The individual all previous recipients of the informa- 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; be accurate, relevant, timely, com- (3) The procedures for requesting an plete, and necessary. If the record in appeal, including the title and address its present state does not meet each of of the official to whom the appeal the criteria, grant the amendment re- should be sent; and

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(4) Where the individual can receive ties, and agencies that receive the assistance in filing the appeal. statement of disagreement. (i) Requests for amending OPM records. The records in an OPM government- § 701.111 Privacy Act appeals. wide system of records are only tempo- (a) How to file an appeal. The fol- rarily in the custody of naval activi- lowing guidelines shall be followed by ties. Requests for amendment of these individuals wishing to appeal a denial records must be processed in accord- of notification, access, or amendment ance with OPM Regulations and the of records. Federal Personnel Manual. The denial (1) The appeal must be received by authority may deny a request, but all the cognizant review authority (i.e., denials are subject to review by the As- ASN (MRA), NJAG, OGC, or OPM) sistant Director for Workforce Infor- within 60 calendar days of the date of mation, Personnel Systems Oversight the response. Group, Office of Personnel Manage- (2) The appeal must be in writing and ment, 1900 E Street, NW, Washington, requesters should provide a copy of the DC 20415. denial letter and a statement of their (j) Individual’s statement of disagree- reasons for seeking review. ment. (1) If the review authority refuses (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 individual’s statement of disagree- Street, SE, Washington Navy Yard, ment. Building 36, Washington, DC 20374–5012. (3) At the discretion of the naval ac- (3) If the record pertains to a present tivity, the statement of reasons may be or former military member’s fitness re- disclosed to those individuals, activi- ports or performance evaluations to

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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. (i) For example, this may include dis- § 701.112 Disclosure of records. closure to personnel managers, review (a) Conditions of disclosure. (1) 5 U.S.C. boards, discipline officers, courts-mar- 552a prohibits an agency from dis- tial personnel, medical officers, inves- closing any record contained in a sys- tigating officers, and representatives of

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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 with the Personnel Exchange Program Numerous factors must be considered (PEP) and interagency support agree- such as: The nature of the information ments. Disclosure accountings are not to be disclosed (i.e., Do individuals nor- required for intra-agency disclosure mally have an expectation of privacy and disclosures made in connection in the type of information to be dis- with interagency support agreements closed?); importance of the public in- or the PEP. Although some disclosures terest served by the disclosure and authorized by this paragraph might probability of further disclosure which also meet the criteria for disclosure may result in an unwarranted invasion under other exceptions specified in the of privacy; relationship of the re- following paragraphs of this section, quester to the public interest being they should be treated under this para- served; newsworthiness of the indi- graph for disclosure accounting pur- vidual to whom the information per- poses. tains (i.e., high ranking officer, public (2) Disclosures required by the FOIA. (i) figure); degree of sensitivity of the in- A record must be disclosed if required formation from the standpoint of the by 5 U.S.C. 552 (1988) as amended by the individual or the individual’s family, Freedom of Information Reform Act of and its potential for being misused to 1986, which is implemented by Sec- the harm, embarrassment, or inconven- retary of the Navy Instruction 5720.42F, ience of the individual or the individ- ‘‘Department of the Navy Freedom of ual’s family; the passage of time since Information Act Program.’’ the event which is the topic of the (ii) 5 U.S.C. 552 (1988) as amended by record (i.e., to disclose that an indi- the Freedom of Information Reform vidual has been arrested and is being Act of 1986 and Secretary of the Navy held for trial by court-martial is nor- Instruction 5720.42F, ‘‘Department of mally permitted, while to disclose an the Navy Freedom of Information Act arrest which did not result in convic- Program require that records be made ’’ tion might not be permitted after the available to any person requesting passage of time); and the degree to them in writing, unless the record is which the information is already in the exempt from disclosure under one of the nine FOIA exemptions. Therefore, public domain or is already known by if a record is not exempt from disclo- the particular requester. sure, it must be provided to the re- (iv) Records or information from in- quester. vestigatory records, including per- (iii) Certain records, such as personnel security investigatory records, sonnel, medical, and similar files, are are exempt from disclosure under the exempt from disclosure under exemp- broader standard of ‘‘an unwarranted tion (b)(6) of 5 U.S.C. 552 (1988) as invasion of personal privacy’’ found in amended by the Freedom of Informa- exemption (b)(7)(C) of 5 U.S.C. 552. This tion Act Reform Act of 1986. Under that broader standard applies only to exemption, disclosure of information records or information compiled for pertaining to an individual can be de- law enforcement purposes.

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(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 (A) When compiling home addresses duty station and future duty station (if and telephone numbers, the individual finalized), unless the stations have may be offered the option of author- been determined by the Department of izing disclosure of the information the Navy to be sensitive, routinely without further consent for specific deployable, or located in a foreign ter- purposes, such as locator services. In ritory, office or duty telephone num- that case, the information may be dis- ber, source of commission, promotion closed for the stated purpose without sequence number, awards and decora- further consent. If the information is tions, attendance at professional mili- to be disclosed for any other purpose, a tary schools, and duty status at any signed consent permitting the addi- given time. tional disclosure must be obtained (vi) The following information nor- from the individual. mally may be disclosed from civilian (B) Before listing home addresses and employee records about CONUS em- telephone numbers in Department of ployees: Full name, present and past the Navy telephone directories, give position titles and occupational series, the individual the opportunity to present and past grades, present and refuse such a listing. If the individual past annual salary rates (including per- requests that the home address or tele- formance awards or bonuses, incentive phone number not be listed in the di- awards, merit pay amount, Meritorious rectory, do not assess any additional and Distinguished Executive Ranks, fee associated with maintaining an un- and allowances and differentials), past listed number for government-owned duty stations, present duty station and telephone services. future duty station (if finalized), in- (C) The sale or rental of lists of cluding room numbers, shop designa- names and addresses is prohibited un- tions, or other identifying information less such action is specifically author- regarding buildings or places of em- ized by Federal law. This does not pro- ployment, unless the duty stations hibit the disclosure of names and ad- have been determined by the Depart- dresses made under Secretary of the ment of the Navy to be sensitive, rou- Navy Instruction 5720.42F, ‘‘Department tinely deployable, or located in a for- of the Navy Freedom of Information eign territory, position descriptions, Act Program.’’ identification of job elements, and (D) In response to FOIA requests, in- those performance standards (but not formation concerning special and gen- actual performance appraisals) that eral courts-martial results (e.g., the disclosure of which would not records of trial) are releasable. How- interfere with law enforcement pro- ever, information regarding summary grams or severely inhibit Department courts-martial and non-judicial punish- of the Navy effectiveness. ment are generally not releasable. The (viii) Disclosure of home addresses balancing of interests must be done. It and home telephone numbers normally is possible that in a particular case, in- is considered a clearly unwarranted information regarding non-judicial pun- vasion of personal privacy and is pro- ishment should be disclosed pursuant hibited. However, they may be dis- to a FOIA request (i.e., the facts lead- closed if the individual has consented ing to a nonjudicial punishment are

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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 been established. These ‘‘Blanket Rou- category. Those records continue to be tine Uses’’ are published at the begin- maintained and controlled by the ning of the Department of the Navy’s transferring naval activity. The Fed- FEDERAL REGISTER compilation of eral Records Center is considered the record systems notices rather than at agent of Department of the Navy and

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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. (A) When responding to a congres- (iii) If a naval activity discloses a sional inquiry made on behalf of a con- record outside the Department of De- stituent by whose identifier the record fense for law enforcement purposes is retrieved, there is no need to verify without the individual’s consent and that the individual has authorized the without an adequate written request, disclosure to the Member of Congress. the disclosure must be under an estab- (B) The oral or written statement of lished routine use, such as the ‘‘Blanket a Congressional staff member is suffi- Routine Use’’ for law enforcement. cient to establish that a request has (iv) Disclosure to foreign law enforce- been received from the individual to ment agencies is not governed by the whom the record pertains. provisions of 5 U.S.C. 552a and this (C) If the constituent inquiry is made paragraph, but may be made only on behalf of an individual other than under established ‘‘Blanket Routine the record subject, provide the Member Uses,’’ routine uses published in the in- of Congress only that information re- dividual record system notice, or to leasable under 5 U.S.C. 552. Advise the other governing authority. Member of Congress that the written (8) Disclosure to protect the health or consent of the record subject is re- safety of an individual. Disclosure may quired before additional information be made under emergency conditions may be disclosed. Do not contact the involving circumstances affecting the record subject to obtain consent for the health and safety of an individual (i.e., disclosure to the Member of Congress when the time required to obtain the unless the Congressional office specifi- consent of the individual to whom the cally requests it be done. records pertain might result in a delay (10) Disclosures to the Comptroller Gen- which could impair the health or safety eral for the General Accounting Office of a person) provided notification of (GAO). Records may be disclosed to the the disclosure is sent to the record sub- Comptroller General of the U.S., or au- ject. Sending the notification to the thorized representative, in the course last known address is sufficient. In in- of the performance of the duties of the stances where information is requested GAO. by telephone, an attempt will be made (11) Disclosures under court orders. (i) to verify the inquirer’s and medical fa- Records may be disclosed under the cility’s identities and the caller’s tele- order of a court of competent jurisdic- phone number. The requested information.

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(ii) When a record is disclosed under (c) Disclosures to commercial enter- this provision and the compulsory legal prises. Records may be disclosed to process becomes a matter of public commercial enterprises only under the record, make reasonable efforts to no- criteria established by Secretary of the tify the individual to whom the record Navy Instruction 5720.42F and 42 U.S.C. pertains. Notification sent to the last 653, Parent Locator Service for En- known address of the individual is suf- forcement of Child Support. ficient. If the order has not yet become (1) Any information required to be a matter of public record, seek to be disclosed by Secretary of the Navy In- advised as to when it will become pub- struction 5720.42F and 42 U.S.C. 653, lic. Neither the identity or the party to Parent Locator Service for Enforce- whom the disclosure was made nor the ment of Child Support may be dis- purpose of the disclosure shall be made closed to a requesting commercial en- available to the record subject unless terprise. the court order has become a matter of public record. (2) Commercial enterprises may (iii) The court order must bear the present a consent statement signed by signature of a federal, state, or local the individual indicating specific con- judge. Orders signed by court clerks or ditions for disclosing information from attorneys are not deemed to be orders a record. Statements such as the fol- of a court of competent jurisdiction. A lowing, if signed by the individual, are photocopy of the order, regular on its considered sufficient to authorize the face, will be sufficient evidence of the disclosure: I hereby authorize the De- court’s exercise of its authority of the partment of the Navy to verify my SSN minimal requirements of or other identifying information and to SECNAVINST 5820.8A,9 ‘‘Release of Of- disclose my home address and tele- ficial Information for Litigation Pur- phone number to authorized represent- poses and Testimony by Department of atives of (name of commercial enter- the Navy Personnel.’’ prise) to be used in connection with my (12) Disclosures to consumer reporting commercial dealings with that enter- agencies. Certain information may be prise. All information furnished will be disclosed to consumer reporting agen- used in connection with my financial cies (i.e., credit reference companies relationship with (name of commercial such as TRW and Equifax, etc.) as de- enterprise). fined by the Federal Claims Collection (3) When a consent statement as de- Act of 1966 (31 U.S.C. 952d). Under the scribed in the preceding subsection is provisions of that Act, the following presented, provide the information to information may be disclosed to a con- the commercial enterprise, unless the sumer reporting agency: disclosure is prohibited by another reg- (i) Name, address, taxpayer identi- ulation or Federal law. fication number (SSN), and other infor- (4) Blanket consent statements that mation necessary to establish the iden- do not identify the Department of De- tity of the individual; fense or Department of the Navy, or (ii) The amount, status, and history that do not specify exactly the infor- of the claim; and mation to be disclosed, may be honored (iii) The agency or program under if it is clear that the individual, in which the claim arose. 31 U.S.C. 952d signing the consent statement, was specifically requires that the FEDERAL seeking a personal benefit (i.e., loan for REGISTER notice for the system of records from which the information a house or automobile) and was aware will be disclosed indicate that the in- of the type of information necessary to formation may be disclosed to a con- obtain the benefit sought. sumer reporting agency. (5) Do not honor requests from commercial enterprises for official evaluations of personal characteristics such 9 Copies may be obtained: Judge Advocate as personal financial habits. General, Navy Department, (Code 34), 1322 Patterson Avenue, SE, Suite 3000, Wash- (d) Disclosure of health care records to ington Navy Yard, Washington, DC 20374– the public. This paragraph applies to 5066. disclosure of information to the news

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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: tain the date of the disclosure; a de- (i) Information required to be re- scription of the information disclosed; leased by Secretary of the Navy In- the purpose of the disclosure; and the struction 5720.42F and OPM Regula- name and address of the person or tions and the Federal Personnel Man- agency to whom the disclosure was ual, as well as the information listed in made. paragraphs (b)(2)(v) (for military per- (2) The record subject has the right of sonnel) and (b)(2) of this section. access to the disclosure accounting ex- (ii) For civilian employees; and cept when the disclosure was made at (iii) General information concerning the request of a civil or criminal law medical conditions, i.e., date of admis- enforcement agency under paragraph sion or disposition; present medical as- (b)(7) of this section; or when the sys- sessment of the individual’s condition tem of records has been exempted from if the medical practitioner has volun- the requirement to provide access to teered the information, i.e., the indi- the disclosure accounting. vidual’s condition presently is (stable) (g) Methods of disclosure accounting. (good) (fair) (serious) (critical), and the Since the characteristics of various patient is (conscious) (semi-conscious) records maintained within the Depart- (unconscious). ment of the Navy vary widely, no uni- (2) Disclosures with the individual’s form method for keeping disclosure ac- consent. With the individual’s informed countings is prescribed. The primary consent, any information about the in- criteria are that the selected method dividual may be disclosed. If the indi- be one which will: vidual is a minor or has been declared (1) Enable an individual to ascertain incompetent by a court of competent what persons or agencies have received jurisdiction, the parent of the minor or disclosures pertaining to him/her; appointed legal guardian of the incom- (2) Provide a basis for informing re- petent may give consent on behalf of cipients of subsequent amendments or the individual. statements of dispute concerning the (e) Disclosure of Personal Informa- record; and tion on Group/Bulk Orders. Do not use (3) Provide a means to prove, if nec- personal information including com- essary that the activity has complied plete SSNs, home addresses and phone with the requirements of 5 U.S.C. 552a numbers, dates of birth, etc., on group/ and this subpart and subpart G of this bulk orders. This personal information part. should not be posted on lists that ev- (h) Retention of disclosure accounting. eryone listed on the orders sees. Such a Maintain a disclosure accounting of disclosure of personal information vio- the life of the record to which the dis- lates the Privacy Act and this subpart closure pertains, or 5 years after the and subpart G of this part. date of the disclosure, whichever is (f) Disclosure accounting. Keep an ac- longer. Disclosure accounting records curate record of all disclosures made are normally maintained with the from a record (including those made record, as this will ensure compliance with the consent of the individual) ex- with paragraph (f) of this section. cept those made to DoD personnel for use in performing their official duties; § 701.113 Exemptions. and those made under the FOIA. Dis- (a) Using exemptions. No system of closure accounting is to permit the in- records is automatically exempt from dividual to determine what agencies or all provisions of 5 U.S.C. 552a. A system persons have been provided informa- of records is exempt from only those

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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 (d) Exemption for classified material. are discretionary on the part of De- All systems of records maintained by partment of the Navy and are not effec- the Department of the Navy shall be tive until published as a final rule in exempt under section (k)(1) of 5 U.S.C. the FEDERAL REGISTER. The naval ac- 552a, to the extent that the systems tivity maintaining the system of contains any information properly records shall make a determination classified under E.O. 12958 and that is that the system is one for which an ex- required by that E.O. to be kept secret emption may be established and then in the interest of national defense or propose an exemption rule for the sys- foreign policy. This exemption is appli- tem. Submit the proposal to CNO cable to parts of all systems of records (N09B30) for approval and publication including those not otherwise specifi- in the FEDERAL REGISTER. cally designated for exemptions herein (b) Types of exemptions. There are two which contain isolated items of prop- types of exemptions permitted by 5 erly classified information. U.S.C. 552a. NOTE: Department of the Navy Privacy Act (1) General exemptions. Those that au- systems of records which contain classified thorize the exemption of a system of information automatically qualify for a records from all but specifically identi- (k)(1) exemption, without establishing an ex- fied provisions of 5 U.S.C. 552a. emption rule. (2) Specific exemptions. Those that (e) Exempt records in nonexempt sys- allow a system of records to be exempt tems. (1) An exemption rule applies to from only a few designated provisions the system of records for which it was of 5 U.S.C. 552a. established. If a record from an exempt (c) Establishing exemptions. (1) 5 U.S.C. system is incorporated intentionally 552a authorizes the Secretary of the into a system that has not been ex- Navy to adopt rules designating eligi- empt, the published notice and rules ble systems of records as exempt from for the nonexempt system will apply to certain requirements. The Secretary of the record and it will not be exempt the Navy has delegated the CNO from any provisions of 5 U.S.C. 552a. (N09B30) to make a determination that (2) A record from one component’s the system is one for which an exemp- (i.e., Department of the Navy) exempt- tion may be established and then pro- ed system that is temporarily in the pose and establish an exemption rule possession of another component (i.e., for the system. No system of records Army) remains subject to the published within Department of the Navy shall system notice and rules of the origi- be considered exempt until the CNO nating component’s (i.e., Department (N09B30) has approved the exemption of the Navy). However, if the non-origi- and an exemption rule has been pub- nating component incorporates the lished as a final rule in the FEDERAL record into its own system of records, REGISTER. A system of records is ex- the published notice and rules for the empt from only those provisions of 5 system into which it is incorporated U.S.C. 552a that are identified specifi- shall apply. If that system of records cally in the Department of the Navy has not been exempted, the record shall exemption rule for the system. not be exempt from any provisions of 5 (2) No exemption may be established U.S.C. 552a. for a system of records until the sys- (3) A record accidentally misfiled tem itself has been established by pub- into a system of records is governed by lishing a notice in the FEDERAL REG- the published notice and rules for the ISTER, at least 30 days prior to the ef- system of records in which it actually fective date, describing the system. should have been filed.

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(f) General exemptions—(1)Central In- classified information, regardless of telligence Agency (CIA). The Depart- the principle functions of the naval ac- ment of the Navy is not authorized to tivity that compiled them. establish an exemption for records (vi) The (j)(2) exemption established maintained by the CIA under sub- 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 and alleged criminal offenders con- (k)(1) exemption, without an established ex- sisting of only identifying data and no- emption rule. tations of arrests; the nature and dis- (1) (k)(1) exemption: Information prop- position of criminal charges; and sen- erly classified under Secretary of the tencing, confinement, release, parole, Navy Instruction 5720.42F, ‘‘Department and probation status; of the Navy Freedom of Information (B) Information compiled for the pur- Act Program’’ and E.O. 12958, in the in- pose of a criminal investigation, interest of national defense or foreign cluding reports of informants and in- policy. vestigators, and associated with an (2) (k)(2) exemption: Investigatory in- identifiable individual; and formation (other than that information (C) Reports identifiable to an indi- within the scope of paragraph (f)(2) of vidual, compiled at any stage of the en- this section) compiled for law enforce- forcement process, from arrest, appre- ment purposes. If maintaining the in- hension, indictment, or preferral of formation causes an individual to be charges through final release from the ineligible for or denied any right, ben- supervision that resulted from the efit, or privilege that he or she would commission of a crime. otherwise be eligible for or entitled to (v) The (j)(2) exemption does not under Federal law, then he or she shall apply to: be given access to the information, ex- (A) Investigative records maintained cept for the information that would by a naval activity having no criminal identify a confidential source (see law enforcement duties as one of its paragraph (h) of this section, ‘‘con- principle functions, or fidential source’’). The (k)(2) exemp- (B) Investigative records compiled by tion, when established, allows limited any element concerning individual’s protection on investigative records suitability, eligibility, or qualification maintained for use in personnel and ad- for duty, employment, or access to ministrative actions.

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(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 individ- except as provided by 13 U.S.C. 8. ual’s request for review of the initial (5) (k)(5) exemption: Investigatory ma- denial of an amendment or, after re- terial compiled solely for the purpose view, wrongfully refuses to amend the of determining suitability, eligibility, record; or qualifications for Federal civilian (2) Denial of access. The activity employment, military service, Federal wrongfully refuses to allow the indi- contracts, or access to classified infor- vidual to review the record or wrong- mation, but only to the extent such fully denies his or her request for a material would reveal the identity of a copy of the record; confidential source (see paragraph (h) (3) Failure to meet recordkeeping stand- of this section, ‘‘confidential source’’). ards. The activity fails to maintain an This exemption allows protection of individual’s record with the accuracy, confidential sources in background in- relevance, timeliness, and complete- vestigations, employment inquiries, ness necessary to assure fairness in any and similar inquiries used in personnel determination about the individual’s screening to determine suitability, eli- rights, benefits, or privileges and, in gibility, or qualifications. fact, makes an adverse determination (6) (k)(6) exemption: Testing or exam- based on the record; or ination material used solely to deter- (4) Failure to comply with Privacy Act. mine individual qualifications for ap- The activity fails to comply with any pointment or promotion in the Federal other provision of 5 U.S.C. 552a or any or military service if the disclosure rule or regulation promulgated under 5 would compromise the objectivity or U.S.C. 552a and thereby causes the indi- fairness of the testing or examination vidual to be adversely affected. process. (c) Criminal penalties. Subsection (i)(1) (7) (k)(7) exemption: Evaluation mate- of 5 U.S.C. 552a authorizes three crimi- rial used to determine potential for nal penalties against individuals for promotion in the military services, but violations of its provisions. All three only to the extent that disclosure are misdemeanors punishable by fines would reveal the identity of a confiden- of $5,000. tial source (see paragraph (h) of this (1) Wrongful disclosure. Any member section, ‘‘confidential source’’.) or employee of Department of the Navy (h) Confidential source. Promises of who, by virtue of his or her employ- confidentiality are to be given on a ment or position, has possession of or limited basis and only when essential access to records and willfully makes a to obtain the information sought. Es- disclosure knowing that disclosure is tablish appropriate procedures for in violation of 5 U.S.C. 552a or this sub- granting confidentiality and designate part and subpart G of this part. those categories of individuals author- (2) Maintaining unauthorized records. ized to make such promises. Any member or employee of Depart- ment of the Navy who willfully main- § 701.114 Enforcement actions. tains a system of records for which a (a) Administrative remedies. An indi- notice has not been published under vidual who alleges he or she has been periodic Chief of Naval Operations affected adversely by a naval activity’s Notes (OPNAVNOTEs) 5211, ‘‘Current violation of 5 U.S.C. 552a or this sub- Privacy Act Issuances.’’ part and subpart G of this part shall be (3) Wrongful requesting or obtaining permitted to seek relief from SECNAV records. Any person who knowingly and

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willfully requests or obtains informa- § 701.116 Purpose. tion concerning an individual under Subparts F and G of this part contain false pretenses. rules promulgated by the Secretary of § 701.115 Computer matching program. the Navy, pursuant to 5 U.S.C. 552a (j) and (k), and subpart F, § 701.113, to ex- (a) General. 5 U.S.C. 552a and this sub- empt certain systems of Department of part and subpart G of this part are ap- the Navy records from specified provi- plicable to certain types of computer sions of 5 U.S.C. 552a. matching, i.e., the computer comparison of automated systems of records. § 701.117 Exemption for classified There are two specific kinds of match- records. ing programs that are fully governed All systems of records maintained by by 5 U.S.C. 552a and this subpart and the Department of the Navy shall be subpart G of this part: exempt from the requirements of the (1) Matches using records from Fed- access provision of the Privacy Act (5 eral personnel or payroll systems of U.S.C. 552a(d)) under the (k)(1) exemp- records; tion, to the extent that the system (2) Matches involving Federal benefit contains information properly classi- programs to accomplish one or more of fied under E.O. 12958 and that is re- the following purposes: quired by that E.O. to be kept secret in (i) To determine eligibility for a Fed- the interest of national defense or for- eral benefit. eign policy. This exemption is applica- (ii) To comply with benefit program ble to parts of all systems of records requirements. including those not otherwise specifi- (iii) To effect recovery of improper cally designated for exemptions herein payments or delinquent debts from cur- which contain isolated items of prop- rent or former beneficiaries. erly classified information. (b) The record comparison must be a § 701.118 Exemptions for specific Navy computerized one. Manual comparisons record systems. are not covered, involving records from two or more automated systems of (a) System identifier and name: records (i.e., systems of records main- (1) N01070–9, White House Support Pro- tained by Federal agencies that are gram. subject to 5 U.S.C. 552a); or a Depart- (2) Exemption: (i) Information specifi- ment of the Navy automated systems cally authorized to be classified under of records and automated records 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 would reveal the identity of a confiden- Subpart G—Privacy Act tial source. (iii) Records maintained in connec- Exemptions tion with providing protective services to the President and other individuals AUTHORITY: Pub. L. 93–579, 88 Stat. 1896 (5 under 18 U.S.C. 3506, may be exempt U.S.C. 552a). pursuant to 5 U.S.C. 552a(k)(3). SOURCE: 65 FR 31471, May 18, 2000, unless (iv) Investigatory material compiled otherwise noted. solely for the purpose of determining

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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. (iii) Testing or examination material (v) Portions of this system of records used solely to determine individual are exempt from the following sub- qualifications for appointment or pro- sections of the Privacy Act: (c)(3), (d), motion in the Federal service may be (e)(1), (e)(4) (G) through (I), and (f). exempt pursuant to 5 U.S.C. 552a(k)(6), (3) Authority: 5 U.S.C. 552a(k)(1), if the disclosure would compromise the (k)(2), (k)(3), and (k)(5). objectivity or fairness of the test or ex- (4) Reasons: (i) Exempted portions of amination process. this system contain information which (iv) Evaluation material used to de- has been properly classified under E.O. termine potential for promotion in the 12958, and which is required to be kept Military Services may be exempt pur- secret in the interest of national de- suant to 5 U.S.C. 552a(k)(7), but only to fense or foreign policy. Exempted por- the extent that the disclosure of such tions of this system may also contain material would reveal the identity of a information considered relevant and confidential source. necessary to make a determination as (v) Portions of this system of records to qualifications, eligibility, or suit- are exempt from the following sub- ability for access to classified informa- sections of the Privacy Act: (c)(3), (d), tion, and which was obtained by pro- (e)(1), (e)(4)(G) through (I), and (f). viding an express or implied promise to (3) Authority: 5 U.S.C. 552a(k)(1), the source that his or her identity (k)(5), (k)(6), and (k)(7). would not be revealed to the subject of (4) Reasons: (i) Granting individuals the record. Exempted portions of this access to portions of this system of system may also contain information records could result in the disclosure of collected and maintained in connection classified material, or the identifica- with providing protective services to tion of sources who provided informa- the President and other individuals tion to the government under an ex- protected pursuant to 18 U.S.C. 3056. press or implied promise of confiden- Exempted portions of this system may tiality. Material will be screened to also contain investigative records com- permit access to unclassified material piled for law enforcement purposes, the and to information that does not dis- disclosure of which could reveal the close the identity of a confidential identity of sources who provide infor- source. mation under an express or implied (ii) [Reserved] promise of confidentiality, compromise (c) System identifier and name: investigative techniques and proce- (1) N01133–2, Recruiting Enlisted Selec- dures, jeopardize the life or physical tion System. safety of law-enforcement personnel, or (2) Exemption: (i) Information specifi- otherwise interfere with enforcement cally authorized to be classified under proceedings or adjudications. E.O. 12958, as implemented by DoD (ii) [Reserved] 5200.1–R, may be exempt pursuant to 5 (b) System identifier and name: U.S.C. 552a(k)(1). (1) N01131–1, Officer Selection and Ap- (ii) Investigatory material compiled pointment System. solely for the purpose of determining (2) Exemption: (i) Information specifi- suitability, eligibility, or qualifica- cally authorized to be classified under tions for federal civilian employment, E.O. 12958, as implemented by DoD military service, federal contracts, or 5200.1–R, may be exempt pursuant to 5 access to classified information may be U.S.C. 552a(k)(1). exempt pursuant to 5 U.S.C. 552a(k)(5), (ii) Investigatory material compiled but only to the extent that such mate- solely for the purpose of determining rial would reveal the identity of a con- suitability, eligibility, or qualifica- fidential source.

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(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, (4) Reason: (i) Granting individuals as well as to protect their right to pri- access to portions of these records per- vacy. It is essential that the identities taining to or consisting of, but not lim- of all individuals who furnish informa- ited to, disciplinary reports, criminal tion under an express promise of con- investigations, and related statements fidentiality be protected. Additionally, of witnesses, and such other related granting individuals access to informa- matter in conjunction with the en- tion relating to criminal and civil law forcement of criminal laws, could enforcement, as well as the release of interfere with the orderly investiga- certain disclosure accountings, could tions, with the orderly administration interfere with ongoing investigations

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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 identity of a confidential source. jeopardize the safety and well being of (ii) Portions of this system of records parents and their children. are exempt from the following sub- (ii) [Reserved] sections of the Privacy Act: (c)(3), (d), (f) System identifier and name: (e)(4) (G) through (I), and (f). (1) N03834–1, Special Intelligence Per- (3) Authority: 5 U.S.C. 552a(k)(2). sonnel Access File. (4) Reasons: (i) Granting individuals (2) Exemption: (i) Information specifi- access to information collected and cally authorized to be classified under maintained by these activities relating E.O. 12958, as implemented by DoD to the enforcement of criminal laws 5200.1–R, may be exempt pursuant to 5 could interfere with orderly investiga- U.S.C. 552a(k)(1). tions, with orderly administration of (ii) Investigatory material compiled justice, and possibly enable suspects to solely for the purpose of determining avoid detection or apprehension. Dis- suitability, eligibility, or qualifica- closure of this information could result tions for federal civilian employment, in the concealment, destruction, or military service, federal contracts, or fabrication of evidence, and could also access to classified information may be reveal and render ineffectual investiga- exempt pursuant to 5 U.S.C. 552a(k)(5), tive techniques, sources, and methods but only to the extent that such mate- used by these activities. rial would reveal the identity of a con- (h) [Reserved] fidential source. (i) System identifier and name: (iii) Portions of this system of 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 cally authorized to be classified under (k)(5). E.O. 12958, as implemented by DoD (4) Reasons: (i) Exempted portions of 5200.1–R, may be exempt pursuant to 5 this system contain information that U.S.C. 552a(k)(1). has been properly classified under E.O. (ii) Investigatory material compiled 12356, and that is required to be kept for law enforcement purposes may be secret in the interest of national de- exempt pursuant to 5 U.S.C. 552a(k)(2). fense or foreign policy. However, if an individual is denied any (ii) Exempted portions of this system right, privilege, or benefit for which he also contain information considered would otherwise be entitled by Federal relevant and necessary to make a de- law or for which he would otherwise be termination as to qualifications, eligi- eligible, as a result of the maintenance bility, or suitability for access to clas- of such information, the individual will sified information and was obtained by be provided access to such information providing an express or implied assur- except to the extent that disclosure ance to the source that his or her iden- would reveal the identity of a confiden- tity would not be revealed to the sub- tial source. ject of the record. (iii) Portions of this system of (g) System identifier and name: records may be exempt from the provi- (1) N04060–1, Navy and Marine Corps sions of 5 U.S.C. 552a(c)(3); (d); (e)(1); Exchange Security Files. (e)(4)(G), (H), and (I); and (f). (2) Exemption: (i) Investigatory mate- (3) Authority: 5 U.S.C. 552a(k)(1) and rial compiled for law enforcement pur- (k)(2). poses may be exempt pursuant to 5 (4) Reasons: (i) From subsection (c)(3) U.S.C. 552a(k)(2). However, if an indi- because the release of the disclosure vidual is denied any right, privilege, or accounting would permit individuals to benefit for which he would otherwise be obtain valuable information con- entitled by Federal law or for which he cerning the nature of the investigation

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and would present a serious impedi- this is all that subsection (e)(4)(I) of ment to the orderly conduct of any in- the Act requires. vestigative activities. Such accounting (j) System identifier and name: could result in the release of properly (1) N05300–3, Faculty Professional Files. classified information which would (2) Exemption: (i) Investigatory mate- compromise the national defense or rial compiled solely for the purpose of disrupt foreign policy. determining suitability, eligibility, or (ii) From subsections (d) and (f) be- qualifications for federal civilian em- cause access to the records would in- ployment, military service, federal form individuals of the existence and contracts, or access to classified infor- nature of the investigation; provide in- mation may be exempt pursuant to 5 formation that might result in the con- U.S.C. 552a(k)(5), but only to the extent cealment, destruction, or fabrication of that such material would reveal the evidence; possibly jeopardize the safety identity of a confidential source. and well-being of informants, witnesses (ii) Portions of this system of records and their families; likely reveal and are exempt from the following sub- render ineffectual investigatory tech- sections of the Privacy Act: (c)(3), (d), niques and methods and sources of in- (e)(4) (G) and (H), and (f). formation; and possibly result in the (3) Authority: 5 U.S.C. 552a(k)(5). invasion of the personal privacy of (4) Reasons: Exempted portions of third parties. Access could result in the this system contain information con- release of properly classified informa- sidered relevant and necessary to make tion which could compromise the na- a release determination as to qualifica- tional defense or disrupt foreign policy. tions, eligibility, or suitability for Fed- Amendment of the records would inter- eral employment, and was obtained by fere with the ongoing investigation and providing an express or implied prom- impose an impossible administrative ise to the source that his or her iden- burden by requiring investigations to tity would not be revealed to the sub- be continually reinvestigated. ject of the record. (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 to subsections (k)(1) and (k)(2) of the subsections of the Privacy Act: (c)(3), Privacy Act of 1974. (d), (e)(4)(G) through (I), and (f). (v) From subsection (e)(4)(I) because (3) Authority: 5 U.S.C. 552a(k)(1) and it is necessary to protect the confiden- (k)(5). tiality of sources and to protect the (4) Reasons: Granting access to infor- privacy and physical safety of wit- mation in this system of records could nesses. Although the system is exempt result in the disclosure of classified from this requirement, the Department material, or reveal the identity of a of the Navy has published a notice in source who furnished information to broad, generic terms in the belief that the Government under an express or

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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:(i) Granting individuals ac- would reveal the identity of a confiden- cess to information collected and tial source. maintained by this activity relating to (iii) Investigatory material compiled the enforcement of criminal laws could solely for the purpose of determining interfere with the orderly investiga- suitability, eligibility, or qualifications, with the orderly administration tions for federal civilian employment, of justice, and possibly enable suspects military service, federal contracts, or to avoid detection or apprehension. access to classified information may be Disclosure of this information could re- exempt pursuant to 5 U.S.C. 552a(k)(5), sult in the concealment, destruction, but only to the extent that such mate- or fabrication of evidence, and jeop- rial would reveal the identity of a con- ardize the safety and well-being of in- fidential source. formants, witnesses and their families, (iv) Evaluation material used to de- and law enforcement personnel and termine potential for promotion in the their families. Disclosure of this infor- Military Services may be exempt pur- mation could also reveal and render in- suant to 5 U.S.C. 552a(k)(7), but only to effectual investigative techniques, the extent that the disclosure of such sources, and methods used by these material would reveal the identity of a components and could result in the in- confidential source. vasion of the privacy of individuals (v) Portions of this system of records only incidentally related to an inves- are exempt from the following sub- tigation. The exemption of the individ- sections of the Privacy Act: (c)(3), (d), ual’s right of access to portions of (e)(4)(G) and (I), and (f). these records, and the reasons therefor, (3) Authority: 5 U.S.C. 552a(k)(1), necessitate the exemption of this sys- (k)(2), (k)(5), and (k)(7). tem of records from the requirement of (4) Reasons: Granting individuals ac- the other cited provisions. cess to information collected and (ii) [Reserved] maintained in this system of records (5) Exemption: (i) Information specifi- could interfere with orderly investiga- cally authorized to be classified under tions; result in the disclosure of classi- E.O. 12958, as implemented by DoD fied material; jeopardize the safety of 5200.1–R, may be exempt pursuant to 5 informants, witnesses, and their fami- U.S.C. 552a(k)(1). lies; disclose investigative techniques; (ii) Records maintained in connec- and result in the invasion of privacy of tion with providing protective services individuals only incidentally related to to the President and other individuals

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under 18 U.S.C. 3506, may be exempt secret in the interest of national de- pursuant to 5 U.S.C. 552a(k)(3). fense or foreign policy. (iii) Records maintained solely for (iii) Exempt portions of this system statistical research or program evalua- also contain information considered tion purposes and which are not used to relevant and necessary to make a de- make decisions on the rights, benefits, termination as to qualifications, eligi- or entitlement of an individual except bility, or suitability for Federal civil- for census records which may be dis- ian employment, military service, Fed- closed under 13 U.S.C. 8, may be ex- eral contracts, or access to classified empt pursuant to 5 U.S.C. 552a(k)(4). information, and was obtained by pro- (iv) Investigatory material compiled viding an express or implied assurance solely for the purpose of determining to the source that his or her identity suitability, eligibility, or qualifica- would not be revealed to the subject of tions for federal civilian employment, the record. military service, federal contracts, or (iv) The notice of this system of access to classified information may be records published in the FEDERAL REG- exempt pursuant to 5 U.S.C. 552a(k)(5), ISTER sets forth the basic statutory or but only to the extent that such mate- related authority for maintenance of rial would reveal the identity of a con- the system. fidential source. (v) The categories of sources of (v) Testing or examination material records in this system have been pub- used solely to determine individual lished in the FEDERAL REGISTER in qualifications for appointment or pro- broad generic terms. The identity of motion in the Federal service may be specific sources, however, must be exempt pursuant to 5 U.S.C. 552a(k)(6), withheld in order to protect the con- if the disclosure would compromise the fidentiality of the source, of criminal objectivity or fairness of the test or ex- and other law enforcement informa- amination process. tion. This exemption is further nec- (vi) Portions of this system of essary to protect the privacy and phys- records are exempt from the following ical safety of witnesses and informants. subsections of the Privacy Act: (c)(3), (vi) This system of records is exempt- (d), (e)(1), (e)(4)(G) through (I), and (f). ed from procedures for notice to an in- (6) Authority: 5 U.S.C. 552a(k)(1), dividual as to the existence of records (k)(3), (k)(4), (k)(5) and (k)(6). pertaining to him/her dealing with an (7) Reason: (i) The release of disclo- actual or potential civil or regulatory sure accountings would permit the sub- investigation, because such notice to ject of an investigation to obtain valu- an individual would be detrimental to able information concerning the nature the successful conduct and/or comple- of that investigation, and the information of an investigation, pending or fu- tion contained, or the identity of wit- ture. Mere notice of the fact of an in- nesses or informants, would therefor vestigation could inform the subject or present a serious impediment to law others that their activities are under, enforcement. In addition, disclosure of or may become the subject of, an inves- the accounting would amount to notice tigation. This could enable the subjects to the individual of the existence of a to avoid detection, to influence wit- record. nesses improperly, to destroy records, (ii) Access to the records contained or to fabricate testimony. in this system would inform the sub- (vii) Exempt portions of this system ject of the existence of material com- containing screening board reports. piled for law enforcement purposes, the (viii) Screening board reports set premature release of which could pre- forth the results of oral examination of vent the successful completion of in- applicants for a position as a special vestigation, and lead to the improper agent with the Naval Investigation influencing of witnesses, the destruc- Service Command. Disclosure of these tion of records, or the fabrication of records would reveal the areas pursued testimony. Exempt portions of this in the course of the examination and system also contain information that thus adversely affect the result of the has been properly classified under E.O. selection process. Equally important, 12958, and that is required to be kept the records contain the candid views of

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the members composing the board. Re- tion that its relevance and necessity lease of the records could affect the becomes clear. Such information per- willingness of the members to provide mits more informed decision-making candid opinions and thus diminish the by the Department when making re- effectiveness of a program which is es- quired suitability, eligibility, and qual- sential to maintaining the high stand- ification determinations. ard of the Special Agent Corps., i.e., (o) System identifier and name: those records constituting examination (1) N05527–1, Security Incident System. material used solely to determine indi- (2) Exemption:(i) Parts of this system vidual qualifications for appointment may be exempt pursuant to 5 U.S.C. in the Federal service. 552a(j)(2) if the information is compiled (n) System identifier and name: and maintained by a component of the (1) N05520–5, Personnel Security Pro- agency which performs as its principle gram Management Records System. function any activity pertaining to the (2) Exemption: (i) Investigative mate- enforcement of criminal laws. rial compiled solely for the purpose of (ii) Portions of this system of records determining suitability, eligibility, or are exempt from the following sub- qualifications for federal civilian em- sections of the Privacy Act: (c)(3), ployment, military service, federal (c)(4), (d), (e)(2), and (e)(4)(G) through contracts, or access to classified infor- (I), (e)(5), (e)(8), (f) and (g). mation may be exempt pursuant to 5 (3) Authority: 5 U.S.C. 552a(j)(2). U.S.C. 552a(k)(5), but only to the extent (4) Reasons:(i) Granting individuals that such material would reveal the access to information collected and identity of a confidential source. maintained by this component relating (ii) Therefore, portions of this system to the enforcement of criminal laws may be exempt pursuant to 5 U.S.C. could interfere with orderly adminis- 552a(k)(5) from the following sub- tration of justice, and possibly enable sections of 5 U.S.C. 552a(c)(3), (d), and suspects to avoid detection or appre- (e)(1). hension. Disclosure of this information (3) Authority: 5 U.S.C. 552a(k)(5). could result in concealment, destruc- (4) Reasons: (i) From subsection (c)(3) tion, or fabrication of evidence, and and (d) when access to accounting dis- jeopardize the safety and well being of closures and access to or amendment of informants, witnesses and their fami- records would cause the identity of a lies, and of law enforcement personnel confidential sources to be revealed. and their families. Disclosure of this Disclosure of the source’s identity not information could also reveal and only will result in the Department render ineffectual investigative tech- breaching the promise of confiden- niques, sources, and methods used by tiality made to the source but it will this component, and could result in the impair the Department’s future ability invasion of privacy of individuals only to compile investigatory material for incidentally related to an investiga- the purpose of determining suitability, tion.The exemption of the individual’s eligibility, or qualifications for Federal right of access to his or her records, civilian employment, Federal con- and the reason therefore, necessitate tracts, or access to classified informa- the exemption of this system of records tion. Unless sources can be assured from the requirements of other cited that a promise of confidentiality will provisions. be honored, they will be less likely to (ii) [Reserved] provide information considered essen- (p) [Reserved] tial to the Department in making the (q) System identifier and name: required determinations. (1) N05800–1, Legal Office Litigation/ (ii) From (e)(1) because in the collec- Correspondence Files. tion of information for investigatory (2) Exemption: (i) Information specifi- purposes, it is not always possible to cally authorized to be classified under determine the relevance and necessity E.O. 12958, as implemented by DoD of particular information in the early 5200.1–R, may be exempt pursuant to 5 stages of the investigation. In some U.S.C. 552a(k)(1). cases, it is only after the information (ii) Investigatory material compiled is evaluated in light of other informa- for law enforcement purposes may be

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exempt pursuant to 5 U.S.C. 552a(k)(2). ders, investigatory materials, evi- However, if an individual is denied any dentiary materials such as exhibits, right, privilege, or benefit for which he decisional memorandum and other would otherwise be entitled by Federal case-related papers. Administrative law or for which he would otherwise be due process could not be achieved by eligible, as a result of the maintenance the ‘‘exparte’’ correction of such mate- of such information, the individual will rials. 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: (i) Parts of this system (v) Evaluation material used to de- may be exempt pursuant to 5 U.S.C. termine potential for promotion in the 552a(j)(2) if the information is compiled Military Services may be exempt pur- and maintained by a component of the suant to 5 U.S.C. 552a(k)(7), but only to agency which performs as its principle the extent that the disclosure of such function any activity pertaining to the material would reveal the identity of a enforcement of criminal laws. confidential source. (ii) Portions of this system of records (vi) Portions of this system of are exempt from the following sub- records are exempt from the following sections of the Privacy Act: (c)(4), (d), subsections of the Privacy Act: (d), (e)(4)(G), and (f). (e)(1), and (f)(2), (3), and (4). (3) Authority: 5 U.S.C. 552a(j)(2). (3) Authority: 5 U.S.C. 552a(k)(1), (4) Reasons: (i) Granting individuals (k)(2), (k)(5), (k)(6), and (k)(7). access to records maintained by this (4) Reasons: (i) Subsection (d) because Board could interfere with internal granting individuals access to informa- processes by which Board personnel are tion relating to the preparation and able to formulate decisions and policies conduct of litigation would impair the with regard to clemency and parole in development and implementation of cases involving naval prisoners and legal strategy. Accordingly, such other persons under the jurisdiction of records are exempt under the attorney- the Board. Material will be screened to client privilege. Disclosure might also permit access to all material except compromise on-going investigations such records or documents as reflecting and reveal confidential informants. Ad- items of opinion, conclusion, or rec- ditionally, granting access to the ommendation expressed by individual record subject would seriously impair board members or by the board as a the Navy’s ability to negotiate settle- whole. ments or pursue other civil remedies. (ii) The exemption of the individual’s Amendment is inappropriate because right to access to portions of these the litigation files contain official records, and the reasons therefore, ne- records including transcripts, court or- cessitate the partial exemption of this

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system of records from the require- (ii) Exempted portions of this system ments of the other cited provisions. also contain information considered (s) System identifier and name: relevant and necessary to make a de- (1) N06320–2, Family Advocacy Program termination as to qualifications, eligi- System. bility, or suitability for Federal em- (2) Exemption: (i) Investigatory mate- ployment and Federal contracts, and rial compiled for law enforcement pur- that was obtained by providing an ex- poses may be exempt pursuant to 5 press or implied promise to the source U.S.C. 552a(k)(2). However, if an indi- that his or her identity would not be vidual is denied any right, privilege, or revealed to the subject of the record. benefit for which he would otherwise be (t) System identifier and name: entitled by Federal law or for which he (1) N12930–1, Human Resources Group would otherwise be eligible, as a result Personnel Records. of the maintenance of such informa- (2) Exemption: (i) Investigatory mate- tion, the individual will be provided ac- rial compiled solely for the purpose of cess to such information except to the determining suitability, eligibility, or extent that disclosure would reveal the qualifications for federal civilian em- identity of a confidential source. ployment, military service, federal (ii) Investigatory material compiled contracts, or access to classified infor- solely for the purpose of determining mation may be exempt pursuant to 5 suitability, eligibility, or qualifica- U.S.C. 552a(k)(5), but only to the extent tions for federal civilian employment, that such material would reveal the military service, federal contracts, or identity of a confidential source. access to classified information may be (ii) Testing or examination material exempt pursuant to 5 U.S.C. 552a(k)(5), used solely to determine individual but only to the extent that such mate- qualifications for appointment or pro- rial would reveal the identity of a con- motion in the Federal service may be fidential source. exempt pursuant to 5 U.S.C. 552a(k)(6), (iii) Portions of this system of if the disclosure would compromise the records are exempt from the following objectivity or fairness of the test or ex- subsections of the Privacy Act: (c)(3) amination process. and (d). (iii) Portions of this system of (3) Authority: 5 U.S.C. 552a(k)(2) and records are exempt from the following (k)(5). subsections of the Privacy Act: (d), (4) Reasons: (i) Exemption is needed (e)(4)(G) and (H), and (f). in order to encourage persons having (3) Authority: 5 U.S.C. 552a(k)(5) and knowledge of abusive or neglectful acts (k)(6). toward children to report such infor- (4) Reasons: (i) Exempted portions of mation, and to protect such sources this system contain information con- from embarrassment or recrimina- sidered relevant and necessary to make tions, as well as to protect their right a determination as to qualifications, to privacy. It is essential that the iden- eligibility, or suitability for Federal tities of all individuals who furnish in- employment, and was obtained by pro- formation under an express promise of viding express or implied promise to confidentiality be protected. Addition- the source that his or her identity ally, granting individuals access to in- would not be revealed to the subject of formation relating to criminal and the record. civil law enforcement, as well as the (ii) Exempted portions of this system release of certain disclosure account- also contain test or examination mate- ing, could interfere with ongoing inves- rial used solely to determine individual tigations and the orderly administra- qualifications for appointment or pro- tion of justice, in that it could result motion in the Federal service, the disin the concealment, alteration, de- closure of which would comprise the struction, or fabrication of informa- objectivity or fairness of the testing or tion; could hamper the identification examination process. of offenders or alleged offenders and (u) System identifier and name: N05813– the disposition of charges; and could 4, Trial/Government Counsel Files. jeopardize the safety and well being of (1) Exemption. Parts of this system parents and their children. may be exempt pursuant to 5 U.S.C.

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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), dividual would alert the subject as to and (k)(2). the nature or existence of an investiga- (5) Reason: (i) From subsection (c)(3) tion, presenting a serious impediment because release of accounting of disclo- to law enforcement investigations. sure could place the subject of an in- (v) From subsection (e)(3) because vestigation on notice that he/she is compliance would constitute a serious under investigation and provide him/ impediment to law enforcement in that her with significant information con- it could compromise the existence of a cerning the nature of the investigation, confidential investigation or reveal the resulting in a serious impediment to identity of witnesses or confidential in- law enforcement investigations. formants. (ii) From subsections (c)(4), (d), (vi) From subsection (e)(4)(I) because (e)(4)(G), and (e)(4)(H) because granting the identity of specific sources must be individuals access to information col- withheld in order to protect the con- lected and maintained for purposes re- fidentiality of the sources of criminal lating to the enforcement of laws could and other law enforcement informa- interfere with proper investigations tion. This exemption is further nec- and orderly administration of justice. essary to protect the privacy and phys- Granting individuals access to informa- ical safety of witnesses and informants. tion relating to the preparation and (vii) From subsection (e)(5) because conduct of criminal prosecution would in the collection of information for law impair the development and implemen- enforcement purposes it is impossible tation of legal strategy. Amendment is to determine in advance what informa- inappropriate because the trial/govern- tion is accurate, relevant, timely, and ment counsel files contain official complete. With the passage of time, records including transcripts, court or- seemingly irrelevant or untimely infor- ders, and investigatory materials such mation may acquire new significance

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as further investigation brings new de- records may in turn become part of the tails to light and the accuracy of such case record in this system. To the ex- information can only be determined in tent that copies of exempt records from a court of law. The restrictions of sub- those ‘other’ systems of records are en- section (e)(5) would restrict the ability tered into this system, the Department of trained investigators and intel- of the Navy hereby claims the same ex- ligence analysts to exercise their judg- emptions for the records from those ment in reporting on investigations ‘other’ systems that are entered into and impede the development of intel- this system, as claimed for the original ligence necessary for effective law en- primary system of which they are a forcement. part. (viii) From subsection (e)(8) because (3) Authority: 5 U.S.C. 552a(j)(2), (k)(1), compliance would provide an impedi- (k)(2), (k)(3), (k)(4), (k)(5), (k)(6), and ment to law enforcement by interfering (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: During the processing cept those indicated above. The deci- of a Freedom of Information Act re- sions to release information from these quest, exempt materials from other systems will be made on a case-by-case systems of records may in turn become basis. part of the case record in this system. (v) System identifier and name: To the extent that copies of exempt (1) N05211–1, Privacy Act Files and records from those ‘other’ systems of Tracking System records are entered into this system, (2) Exemption: During the processing the Department of the Navy hereby of a Privacy Act request (which may claims the same exemptions for the include access requests, amendment re- records from those ‘other’ systems that quests, and requests for review for ini- are entered into this system, as tial denials of such requests), exempt claimed for the original primary sys- materials from other systems of tem of which they are a part.

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(3) Authority: 5 U.S.C. 552a(j)(2), (k)(1), ment of criminal laws could interfere (k)(2), (k)(3), (k)(4), (k)(5), (k)(6), and with orderly investigations, with the (k)(7). orderly administration of justice, and (4) Records are only exempt from per- might enable suspects to avoid detec- tinent provisions of 5 U.S.C. 552a to the tion or apprehension. Disclosure of this extent such provisions have been iden- information could result in the con- tified and an exemption claimed for the cealment, destruction, or fabrication of original record and the purposes under- evidence, and jeopardize the safety and lying the exemption for the original well being of informants, witnesses and record still pertain to the record which their families, and law enforcement is now contained in this system of personnel and their families. Disclo- records. In general, the exemptions sure of this information could also re- were claimed in order to protect prop- veal and render ineffectual investiga- erly classified information relating to tive techniques, sources, and methods national defense and foreign policy, to used by this component, and could re- avoid interference during the conduct sult in the invasion of the privacy of of criminal, civil, or administrative ac- individuals only incidentally related to tions or investigations, to ensure pro- an investigation. The exemption of the tective services provided the President individual’s right of access to his or and others are not compromised, to her records, and the reasons therefore, protect the identity of confidential necessitate the exemption of this sys- sources incident to Federal employ- tem of records from the requirements ment, military service, contract, and of other cited provisions. security clearance determinations, and (ii) [Reserved] to preserve the confidentiality and in- (b) System identifier and name: tegrity of Federal evaluation mate- (1) MIN00001, Personnel and Security rials. The exemption rule for the origi- Eligibility and Access Information System. nal records will identify the specific 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, May 7, 2002; 68 FR 43461, July 23, 2003] would otherwise be entitled by Federal 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 (a) System identifier and name: be provided access to such information (1) MMN00018, Base Security Incident except to the extent that disclosure Reporting System. would reveal the identity of a confiden- (2) Exemption: tial source. (i) Parts of this system may be ex- (ii) Records maintained in connec- empt pursuant to 5 U.S.C. 552a(j)(2) if tion with providing protective services the information is compiled and main- to the President and other individuals tained by a component of the agency under 18 U.S.C. 3506, may be exempt which performs as its principle func- pursuant to 5 U.S.C. 552a(k)(3). tion any activity pertaining to the en- (iii) Investigatory material compiled forcement of criminal laws. solely for the purpose of determining (ii) Portions of this system of records suitability, eligibility, or qualifica- are exempt from the following sub- tions for federal civilian employment, sections of the Privacy Act: (c)(3), military service, federal contracts, or (c)(4), (d), (e) (2) and (3), (e)(4)(G) access to classified information may be through (I), (e)(5), (e)(8), (f), and (g). exempt pursuant to 5 U.S.C. 552a(k)(5), (3) Authority: 5 U.S.C. 552a(j)(2). but only to the extent that such mate- (4) Reasons: rial would reveal the identity of a con- (i) Granting individuals access to in- fidential source. formation collected and maintained by (iv) Portions of this system of these activities relating to the enforce- records are exempt for the following

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subsections of the Privacy Act: (c)(3), 705.16 Navy produced public information (d), (e)(1), (e)(4)(G) through (I), and (f). material. (3) Authority: 5 U.S.C. 552a(k)(2), (k)(3), 705.17 Participation guidelines. 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. 705.25 Navy Exhibit Center. in the interest of national defense or 705.26 Exhibit availability report. foreign policy. 705.27–705.28 [Reserved] (ii) Exempt portions of this system 705.29 Navy Art Collection. 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. 705.33 Participation by Armed Forces bands, ian employment, military service, Fed- choral groups, and troops in the public eral contracts, or access to classified, domain. compartmented, or otherwise sensitive 705.34 Other special events. information, and was obtained by pro- 705.35 Armed Forces participation in events viding an expressed or implied assur- in the public domain. ance to the source that his or her iden- 705.36 Government transportation of civil- tity would not be revealed to the sub- ians for public affairs purposes. 705.37 Public affairs and public service ject of the record. awards. (iii) Exempt portions of this system further contain information that iden- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031. tifies sources whose confidentiality SOURCE: 41 FR 29101, July 15, 1976, unless must be protected to ensure that the otherwise noted. privacy and physical safety of these witnesses and informants are pro- § 705.1 Purpose. tected. The regulations and rules in this part prescribe policies and procedures for PART 705—PUBLIC AFFAIRS the Department of the Navy pertaining REGULATIONS to public affairs practices. § 705.2 Chief of Information and the Sec. Office of Information (CHINFO). 705.1 Purpose. 705.2 Chief of Information and the Office of (a) The Chief of Information is the di- Information (CHINFO). rect representative of the Secretary of 705.3 [Reserved] the Navy and of the Chief of Naval Op- 705.4 Communication directly with private erations in all public affairs and inter- organizations and individuals. nal relations matters. As such, the 705.5 Taking of photos on board naval ships, Chief of Information has the authority aircraft and installations by members of to implement public affairs and inter- the general public. nal relations policies and to coordinate 705.6 Releasing public information material to the media. Navy and Marine Corps public affairs 705.7 Radio and television. and internal relations activities of mu- 705.8 Motion pictures. tual interest. 705.9 Availability of motion pictures to ex- (b) The Chief of Information will ternal audiences. keep Navy commands informed of De- 705.10 Still photography. partment of Defense policies and re- 705.11 Supplying photographs and services quirements. No command within the to other than Navy and Marine Corps. Department of the Navy, except Head- 705.12 Print media. quarters, Marine Corps, will deal di- 705.13 Commercial advertising. rectly with the Office of the Assistant 705.14 Embarkation of media representatives. Secretary of Defense (Public Affairs) 705.15 Employment of Navy personnel as on public affairs matters unless au- correspondents or staff members of civil- thorized to do so by the Chief of Infor- ian news media. mation.

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(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 of the Secretary of the Navy as Execu- the Navy. tive Agent for the Department of De- (ix) Provide advice and assistance in fense) for the High School News Serv- the placement of news and feature ma- ice and has operational control of the terials to the field activities of the U.S. Navy Band, Washington, DC. Navy Recruiting Command. (e) The Navy Office of Information (x) Perform such other tasks as may Branch Offices (NAVINFOs) are located be assigned by the Chief of Informa- in Atlanta, Boston, Chicago, Dallas, tion. Los Angeles, and New York. As rep- (2) Additionally, NAVINFO Los Ange- resentatives of the Secretary of the les is the Navy representative for all Navy, Chief of Naval Operations, and appropriate liaison with motion pic- Chief of Information, the NAVINFOs ture and network television offices in have a primary mission of providing di- the Hollywood area. Naval activities rect liaison with local and regional will channel all requests for informa- mass communications media. tion or assistance from these media to (1) The function of the NAVINFOs NAVINFO Los Angeles, which will co- are as follows: ordinate with CHINFO. (i) Establish and maintain close per- (3) Additionally, NAVINFO New York sonal relationships with local tele- is the Navy representative for all ap- vision, radio, film, publishing, and propriate liaison with television and other mass-media organizations includ- radio networks in the New York area ing minority-group-oriented media. and with magazine and book publishers (ii) Seek ways through these media in that area. Requests for assistance to inform the public about naval per- originating from these media should be sonnel and activities. directed to NAVINFO New York, which (iii) Provide assistance to media or- will coordinate with CHINFO. ganizations and respond to their inter- (4) Except as specifically directed by est in Navy programs, stories, and fea- CHINFO, the Branch Offices do not tures. In this regard, maintain infor- have responsibility or authority for mal liaison with various information community relations or internal rela- offices afloat and ashore in order to respond to requests from local media rep- tions. resentatives, particularly those from (5) Direct liaison between NAVINFOs inland areas, who desire to visit fleet and Naval District public affairs of- units or activities ashore. fices, Navy recruiters and other naval (iv) Provide advice on Navy coopera- activities afloat and ashore is encour- tion and assistance, as appropriate, to aged. representatives of national industrial (f) Areas covered by the respective and commercial organizations, includ- offices are: ing advertising agencies. (1) NAVINFO Atlanta: Alabama, the (v) Maintain a library of Navy mo- District of Columbia, Florida, Georgia, tion picture films for use by local tele- Kentucky, Maryland, Mississippi,

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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 [44 FR 6389, Feb. 1, 1979] among the functions of the NAVPACENs. § 705.3 [Reserved] (i) Produce written, audio and photographic feature public information ma- § 705.4 Communication directly with terial about fleet and shore personnel, private organizations and individ- units and activities, as coordinated uals. with and approved for policy and con- (a) Questions from the public and re- cept by the respective fleet and shore quests from groups or individuals for commander concerned. pamphlets, photos, biographies, histor- (ii) Serve as public affairs emergency ical matter, etc., must be promptly an- reaction teams/resource personnel re- swered. (32 CFR part 701, subparts A–D sponsive to the requirements of the refers.) CNO and CHINFO, and when feasible (b) Assistance within the command’s and appropriate and as approved by capabilities should (and in some cases, CNO or CHINFO, serve as public affairs must) be given. Where an established emergency reaction teams/resource channel for obtaining the item exists, personnel in support of Fleet Com- such as a publication stocked by the manders. Superintendent of Documents (Govern- (iii) Develop feature material to sup- ment Printing Office), or photos, as export the long range goals and the im- plained in the subparagraph below, the mediate priorities of the Navy. Direct requester may be directed to it. Under liaison is authorized with the Navy Re- some circumstances, a charge may be cruiting Command, Recruiting Areas, made. (Consult part 701 or the com- Recruiting Districts, and other Com- mand’s Freedom of Information au- manders as appropriate to achieve this thority for details.) If a lengthy search, function. beyond the convenient manpower re- (iv) Perform such other tasks as may sources of the command, would be re- be assigned by the Chief of Informa- quired, the requester may be offered tion. the opportunity of examining the ma- (2) NAVPACENs will have no public terial at the command instead of cop- affairs news media responsibilities ies being made.

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(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 installa- (2) Releases by local commands: tions by members of the general (i) News of purely local interest may public. be released by the command concerned. (a) Visitors will not be allowed to Higher and coordinating authorities take photographic equipment on board (such as the District Commandant) will a naval ship or aircraft or into a naval be informed, when appropriate, that activity or to take photographs within the release has been made. a naval jurisdiction unless specially (ii) News of national or other wide in- authorized by the officer in command terest may be released by a local com- or higher authority. mand under the following cir- (b) Guests of the Navy who wish to cumstances: take photos within naval jurisdictions (A) The Assistant Secretary of De- will be advised of areas where photog- fense (Public Affairs), having approved raphy is permitted. An escort will be a release, directs that it be issued by assigned to assure that security is the command concerned. maintained, unless photography is per- (B) An event of immediate and ur- mitted throughout the ship, aircraft or gent news interest, such as a installation, or the areas in which it is disasterous accident, occurs at the not permitted are appropriately guard- command, and emergency announce- ed or secured. ments must be made as delay in issuing (c) If there is reason to believe that information would be against the best film exposed by a visitor or media pho- interests of the Navy. The officer in tographer contains classified informa- command will make a ‘‘spot news’’ re- tion, the film will be processed under lease of all appropriate information Navy jurisdiction. considered releasable. (1) Classified photos, if any, will be (1) Copies of spot news releases made retained. All unclassified film will be (or a description if the announcement returned to the owner. is made orally) will be forwarded (2) When film exposed by civilian promptly to the Chief of Information. visitors or media representatives in (2) If the situation is considered crit- sensitive areas is beyond the capability ical, the spot news release will be for- of the local command to process, it warded by telephone or message. may be forwarded to the Commanding (b) Means through which information Officer, Naval Photographic Center, for is released to media:

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(1) Navy oriented information mate- mind, but the press should be clearly rial (written, taped, motion picture, informed of the nature of this meeting. still photo) is regularly released to all Technically, this is not considered a media presumed to be interested. news conference. (2) Similar material is provided in re- (ii) When a news conference is held, it sponse to query from a news media rep- is essential that all interested media be resentative. The material may be pro- invited to attend. duced by the Navy, or the newsman (iii) A record of what is said should may be assisted in researching, film- be kept. Ideally, the news conference ing, etc. himself. should be tape recorded and a public af- (3) Exclusive releases: fairs officer should be present. (i) Information concerning naval ac- (iv) Official spokesmen will be pre- tivities may be provided on an exclu- pared to answer questions in a frank sive basis only when a specific request and candid manner. If the answer or inquiry is received from one news would compromise military security, media representative for material not the inquirer should be so advised. If the requested by other media. answer is not known to the spokesman, (ii) In such cases, and assuming that he should say so and add that the mat- the information is properly releasable, ter will be checked and any available the following rules will apply: unclassified information provided (A) If prior to the time information is later. given to the newsman making the (v) Newsmen are not normally asked original inquiry or request substan- to submit their questions in advance. If tially similar inquiries or requests are this is considered advisable, as in cases received from other newsmen, the first where highly technical answers may be inquirer will be so informed, and subse- required, the answers are prepared in quent inquirers will be advised that a advance and given to all attending prior request has been received. None newsmen (not just the questioner) at of the inquirers will be told the iden- the news conference. tity of the individuals or media who 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. for conducting a news conference. Spe- (6) Background briefings; ‘‘Not for at- cial events, significant operations or tribution’’; or ‘‘Off the record.’’ serious accidents are frequent reasons (i) Since there is a possibility or risk for calling news conferences. If re- of a misunderstanding arising in these quested, spokesmen may be made briefings, it is important that all con- available to the press for questions cerned understand and agree to the without specific subject matter in ground rules.

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(ii) In general, information will not (c) Navy cooperation in productions be made public unless it can be openly by audiovisual media representatives attributed to the Navy and dissemi- (nongovernment). nated without reservation. Occasion- (1) The production or project must: ally, a backgrounder may be helpful. (i) Be consistent with the goals and An example is a briefing of embarked aims of the Department of Defense and/ newsmen in advance of an operation, or be in the national interest. providing information which may not (ii) Portray military operation, his- be reported until the operation is over. torical incidents, persons and places, in The purpose is to help the newsmen un- such a manner as to give a true por- derstand the operation while it is tak- trayal and interpretation of military ing place. life. (iii) Comply with accepted standards § 705.7 Radio and television. of dignity and propriety in the indus- (a) Navy relationships with radio and try. TV representatives are of two types: (2) There will be no deviation from (1) Dissemination to them of Navy established safety standards. produced tapes, photos, films, etc. (3) Operational readiness shall not be (This is discussed in more detail in impaired. § 705.17). (4) Official activities of military per- (2) Cooperation with them when they sonnel assisting the production must produce a program on a Navy subject. be within the scope of normal military This is discussed in the paragraph fol- activities. Exceptions to this policy lowing: will be made only in unusual cir- (b) Requirement for approval by cumstances. higher authority. (5) Diversion of ships, equipment, (1) Commanding officers may: personnel and material resources from (i) Release audiovisual material normal military locations or military which is spot news, as defined in operations will not normally be au- § 705.6(a)(2)(ii) preceding, or is of purely thorized for filming. Exceptions to local interest. such policy must be authorized by the (ii) Participate in local community Assistant Secretary of Defense (Public audiovisual projects of benefit to the Affairs), through the Chief of Informa- Department of Defense or in the nation. tional interest. (i) The production company con- (iii) Approve one-time, one-station cerned must reimburse the government participation by personnel of their for any extra expense involved. A strict commands (as individuals) in programs accounting of the additional expenses of purely local interest. incurred and charged to the production (2) All other audiovisual material company must be maintained by the originated by the Department of the designated project officer. A copy of Navy or requiring Navy cooperation this accounting will be forwarded to must be approved by the Chief of Infor- the Chief of Information. mation, who will effect the necessary (6) Naval material and personnel will coordination and/or approval of the As- not be employed in such a manner as to sistant Secretary of Defense (Public compete with commercial and private Affairs). enterprise. In this regard, any person (i) Requests for assistance from non- or agency requesting their use will fur- governmental audiovisual media will nish a noncompetitive certification. be forwarded, with the maximum avail- (7) Additional details on procedures able details and an evaluation of the will be found in DOD Instruction request, through the chain of command 5410.16. to the Chief of Information. (8) In addition to cooperation re- (ii) No direct coordination or contact quested by the media, commands will between local naval commands and the be alert to the advantages of providing Assistant Secretary of Defense (PA) is Navy programming and/or encouraging authorized unless specifically provided participation by Navy personnel in for by separate directives or cor- local radio and TV programming. Ex- respondence. amples are community forums, local

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talent shows, educational and religious produced or authorized for radio or TV programs, children’s shows, sports pro- broadcast. grams, etc. (g) Disclaimers. A disclaimer is not (d) Participation by individual Navy necessary if a product is advertised on personnel on radio or TV programs: a program in which the Navy partici- (1) In general, such participation is pates, but there must be no stated or encouraged if it is: implied endorsement of it by the Navy (i) Dignified and considered in the in- or by naval personnel appearing on the terests of the Navy. program. (ii) Compatible with operational (h) Requests for courtesy prints of commitments. commercial television programs: (iii) Not in competition with the reg- (1) Requests will not be made directly ular employment of professional per- to the producer or network concerned, formers. but will be forwarded to the Chief of In- (2) The public affairs officer will formation by the Navy requester. screen requests for such appearances (2) These courtesy prints will be ex- for members of his command to see hibited only under circumstances that the programs are in good taste, which cannot be construed as competi- and that neither the Navy nor its per- tive with commercial ventures. sonnel are exposed to embarrassment for the sake of entertainment. § 705.8 Motion pictures. (3) Approval of participation by Navy (a) The rules and procedures given in individuals: the preceding for TV will also apply to (i) Approval is not required for per- cooperation with commercial motion sonnel attending audience participa- picture producers. tion broadcasts if they are selected at (b) The Navy assists in the produc- random from the audience. tion of commercial, privately financed, (ii) One-time, one-station participa- nontheatrical motion pictures of insti- tion of purely local interest may be ap- tutional or of educational value to the proved by the officer in command con- public. They Navy will not: cerned. (1) Solicit their production. (iii) If participation will be on a net- (2) Provide lists of subjects the Navy work (defined as more than one sta- considers ‘‘desirable.’’ tion, even if local) of if the same per- (3) State that the Navy will use a son or program is requested by two or commercially produced film. more unrelated stations, approval by (4) Imply endorsement of a product. the Chief of Information must be ob- (5) Permit the use of official Navy tained even if the show is of local in- seals. terest only. (c) Navy assistance to motion pic- (e) Use of official footage: tures and all other audio-visual prod- (1) Use of official U.S. Navy stock ucts produced by Navy contractors will film footage on TV broadcasts is not be subject to the same rules and proce- authorized without approval and clear- dures that apply to other non-govern- ance by the Chief of Information and ment producers. Audio-visual products the Department of Defense. produced by Navy contractors, with or (2) Use of Navy public information without Navy assistance, will be sub- motion pictures cleared for TV is au- mitted to the Chief of Information via thorized and encouraged except that the appropriate Navy headquarters ac- such films may be used on subscription tivity for coordination with the Assist- or pay TV only when offered to the ant Secretary of Defense (Public Af- viewers at no cost. fairs) for clearance for public release. (3) Navy films will not be cut or por- They will be accompained by five cop- tions duplicated for TV use in lieu of ies of the script and a statement from stock footage without prior approval the producer that costs were paid from by the Chief of Information. corporate (vice contract) funds. (f) Music clearance. The Navy as- (d) When a commercial film which sumes no responsibility for clearance has been produced with Navy coopera- of music used on Navy recordings, tion is screened in a community, local transcriptions, or films not specially commands can provide Navy exhibits

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for display in theater lobbies, coordi- will be returned promptly to the pho- nate displays of recruiting material, tographer. and arrange for personal appearances (2) Navy personnel have no authority of Department of Defense and Depart- to confiscate film off Navy property. If, ment of the Navy military and civilian as in an accident, classified equipment personnel, provided such cooperation is is exposed which cannot be removed or approved by the Chief of Information covered, Navy representatives will ask and the Assistant Secretary of Defense news media photographers not to pho- (Public Affairs). tograph it and will inform them of 18 [41 FR 29101, July 15, 1976, as amended at 44 U.S.C. 793(e), 795, 797, which makes it a FR 6390, Feb. 1, 1979] criminal offense to photograph classified material. Navy personnel will not § 705.9 Availability of motion pictures to external audiences. use force if media photographers refuse to cooperate, but will instead seek the (a) Public access. Navy and Marine assistance of appropriate civil authori- Corps general motion pictures and mo- ties and/or the photographer’s superior tion picture projects not previously in recovering film or photographs pre- cleared for public exhibition will resumed to be of classified nature. quire clearance by the Chief of Infor- 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 § 705.10 Still photography. submitted to review by higher authority. (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 § 705.5 apply also to media representa- elsewhere, because of its human inter- tives. est or artistic merit, a single print (b) Basic policy and procedures for should be forwarded to the Chief of In- still photos are set forth in the Manual of Naval Photography, OPNAVINST formation, together with a notation of 3150.6D. the distribution made. (c) Authority to forbid photography: (4) Photographs of national interest: (1) On Navy property, the officer in (i) ‘‘Spot news’’ photos may be re- command may forbid the taking of leased by a District Commandant or photographs and may confiscate film, Fleet or Force Commander. reviewing it if it is suspected that clas- (ii) If a photo has been released by a sified material has been photographed. local command to national news In such cases, all unclassified photos media:

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(A) The original negative or trans- (c) This policy does not preclude re- parency will be forwarded by the fast- leases to the media, news companies, est available means to the Com- and others in accordance with estab- manding Officer, Naval Photographic lished procedures, or the sale of re- Center, Naval Station, Washington, DC leased photographs to private agencies 20390. Such forwarding will be in ac- or individuals under existing Depart- cordance with the Manual of Naval ment of Defense regulations and part Photography, par. 0445, subparagraphs 701, subparts A–D, Availability to the 3 and 4. public of Department of the Navy In- (B) One print, a copy of the letter of formation and Records. Normally, re- transmittal, and the distribution list quests by individuals for still photo- will be forwarded to the Chief of Infor- graphs and motion picture photog- mation. raphy for private use are forwarded to (C) Navy units with a Unified Com- the Commanding Officer, Naval Photo- mand will forward the photos through graphic Center, Naval Station, Wash- Unified Command channels. ington, DC 20390, for action. Procedures (D) All other commands will forward for the collection or authority for the photos to the Chief of Information waiver of fees for service and material who will effect coordination with the provided are set forth in Volume III, Office of the Assistant Secretary of De- NAVCOMPT Manual, and part 701, sub- fense (Public Affairs) and, if necessary, parts A–D. arrange for security review. (d) Navy aerial photography released (iii) Photography of research activi- for sale to the public is transferred to ties is normally considered to be of na- the United States Department of the tional interest. Interior. Inquirers regarding the pur- (iv) Still photographs of national chase of this photography should be di- news interest may be forwarded, un- rected to Chief, Map Information Of- processed, for release by the Chief of fice, Geological Survey, Department of Information by any command not sub- the Interior, Washington, DC 20025. ject to the authority of a Unified or (e) Navy training films suitable for Specified Commander. Such forwarding sale to the public are transferred to the will be in accordance with paragraph National Audio-Visual Center, Na- 0445, subparagraph 3, of the Manual of tional Archives and Records Service, Naval Photography. All available cap- General Services Administration, tion material will be forwarded with Washington, DC 20408. Inquires regard- this unprocessed photography. ing the sale of Navy training films should be addressed to the National § 705.11 Supplying photographs and Audio-Visual Center. services to other than Navy and Ma- (f) This policy does not preclude re- rine Corps. leases to contractors and others prop- (a) To avoid competition with civil- erly engaged in the conduct of the ian photographic organizations, naval Navy’s business. However, when serv- aircraft will not be used to take photo- ices are performed for other agencies of graphs for, nor will photographs or mo- the government, and under certain con- saic maps be provided to any individ- ditions, for other military depart- uals, corporations, or agencies other ments, the Navy Comptroller Manual than departments or agencies of the prescribes that such are subject to re- federal government, without specific imbursement. permission from the Chief of Naval Op- (g) All private inquiries from foreign erations. nationals should be returned, advising (b) In the case of natural catas- the addressee to contact his local U.S. trophe, or other circumstances where Information Service officer for the de- prompt action is required, the senior sired materials. officer present may authorize a departure from the preceding paragraph. In § 705.12 Print media. all such cases, a report of the cir- Requests for reprints of items pub- cumstances will be made to the Chief lished in national media will be ad- of Naval Operations. dressed to the Chief of Information.

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Commands will be careful not to repro- (4) It may not promote the use of to- duce on their own authority any copy- bacco or alcohol. righted material without advance per- (e) Use of uniforms and naval insig- mission from the copyright holder. nias. These may be used provided it is done in a dignified manner. § 705.13 Commercial advertising. (f) Use of Naval personnel: (a) The Navy encourages cooperation (1) Personnel may receive no com- with advertisers. However, the layout, pensation. artwork and text of the proposed ad- (2) Personnel will not be inconven- vertisement must be submitted to the ienced or have their training or normal Chief of Information for review and for duties interrupted. clearance by other appropriate authori- (3) Written consent from the person ties. concerned must be obtained before a (b) Requests from commercial enter- photo may be used. prises (including those with Navy con- (4) Navy civilians and military per- tracts) for use of Navy personnel, fa- sonnel on active duty may not use cilities, equipment or supplies for ad- their position titles or ranks in connec- vertising purposes must be referred to tion with any commercial enterprise or the Chief of Information. endorsement of a commercial product. (c) Official Navy photos which have (Retired personnel and Reserves not on been cleared and are released for open active duty may use their military ti- publication may be furnished for com- tles in connection with commercial en- mercial advertising, if properly identi- terprises if this does not give rise to fied and captioned. No photos will be the appearance of sponsorship of the taken exclusively for the use of an ad- enterprise by the Navy or Department vertiser. or in any way reflect discredit upon (d) Navy cooperation in commercial them.) 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 a must be matters of fact, without mis- 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 representatives. vidual, sect, fraternal organization, 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 racy of the advertiser’s claims or for or visits to shore installations apply his compliance with laws protecting also to those situations. the rights of privacy of military per- (2) See also § 705.37 on transportation sonnel whose photographs, names or of non-Navy civilians. statements appear in the advertise- (b) Invitations to embark. (1) Invita- ment. It will neither indicate that a tions should be extended as far in ad- product has undergone Navy tests nor vance as possible and inclusive infor- disclose data from any Navy tests mation on the following should be pro- which may have been made. vided:

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

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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 apply to Navy civilian employees and [41 FR 29101, July 15, 1976, as amended at 44 to Navy personnel in transit through a FR 6390, Feb. 1, 1979] 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 ships, aircraft and stations at the dis- (a) A member of the naval service on cretion of the officer in command. active duty or Navy civilian may act as (iii) An officer in command may correspondent for a news periodical or screen all photos taken by naval per- service, radio or TV station or net- sonnel with personal cameras within work, or may work part-time for such the jurisdiction of the command to pro- an organization. The Secretary of the tect classified information or to ac- Navy will, however, be immediately inquire photos for official use, including formed, via the Chief of Information. public affairs. Photographs taken by (1) See section 0307 (par. 5), section bystanders at times of accident, com- 0308 (par. 4), and section 0309 (par. 3) of bat, or similar significant events can the Navy Public Affairs Regulations be valuable for preparation of official for regulations referring to personnel report and public release. They should assigned to public affairs staffs receiv- be collected for screening and review as ing compensation for such work. expeditiously as possible. (2) In time of war, only personnel as- (iv) Amateur photographers should signed to public affairs billets and such also be encouraged to volunteer the use other personnel as the Secretary of the of interesting or significant photos for Navy may authorize can act as cor- public affairs use. respondents for civilian media. (v) Photos made by naval personnel, (b) Military personnel on active duty with either personal cameras and film, and Navy civilians may not serve on Navy equipment and film, or any com- the staff of a ‘‘civilian enterprise’’ news- bination thereof, may be designated paper published for personnel of a Navy ‘‘Official Navy Photo’’ if it is considered installation or activity. in the best interests of the Navy. (A) All precautions will be taken to § 705.16 Navy produced public infor- protect such film from loss or damage, mation material. and all unclassified personal photos not (a) Still photo—(1) General. (i) The pol- designated as ‘‘official’’ will be returned icy and procedures given for media pro- to the owner immediately after review. duced still photos in § 705.10, apply to (B) When a photo taken by an indi- Navy produced photos. vidual who is not an official photog- (ii) The Office of Information does rapher is selected for public affairs re- not issue, nor have funds available for lease: the purchases of, any photographic (1) The photographer will receive equipment or supplies for Navy com- credit for his work in the same manner mands. Details on the establishment of as an official photographer. authorized laboratories and acquisition (2) The original negative or trans- of equipment and supplies are given in parency will be retained and assigned

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

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(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 raising, or any political or promotional participation, but no specific or addi- purpose. tional charge may be made because of (j) Community relations programs Navy participation. must always be conducted in a manner (3) Participation shall be incidental free from any discrimination because to the event except for programs of a of race, creed, color, national origin, or patriotic nature, celebration of na- sex. tional holidays, or events which are

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open to the general public at no charge events for which Navy participation for admission. has been authorized. (4) The provisions of this paragraph (u) Navy support will not normally do not apply to the Navy’s Blue Angel be authorized for commercially-ori- Flight Demonstration Team or to the ented events such as shopping center Navy Band and other special bands en- promotions, Christmas parades, and gaged in authorized concert tours con- other such events clearly sponsored by, ducted at no additional cost to the gov- or conducted for the benefit of com- ernment. mercial interests. However, this policy (m) Some participation in or support does not preclude participation of Navy of commercially sponsored programs recruiting personnel and their organic on audio or visual media is allowable. equipment, materials and exhibits so See §§ 705.7 and 705.8. long as their participation is not used 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 be used in such capacities as ushers, the Director of Community Relations, guards, parking lot attendants, runner Office of the Assistant Secretary of De- or messengers, baggage handlers or for fense (Public Affairs), Pentagon, Wash- crowd control, or in any installations. ington, DC 20301: (t) Maximum advantage of recruiting (1) National and international events, potential will be taken at appropriate including conventions, except those

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taking place in overseas areas which fied Command and naval activities con- are primarily of internal concern to cerned. Unified Commanders. (4) Unified Commanders overseas re- (2) Events outside the United States quiring Navy support for a community which have an interest and impact ex- reltaions program or participation in a tending beyond the Unified Command public event should coordinate their re- areas, or which require assistance from quirements with the appropriate Navy outside the command area. component command. (3) Public events in the Washington, (f) The Secretary of the Navy will DC area. plan and execute Navy community re- (4) Aerial, parachute, or simulated lations programs and approve Navy tactical demonstrations held in the participation in public events not oth- public domain, except those held in erwise reserved or assigned to the Sec- areas assigned to overseas Unified retary of Defense. This authority may Commands. be delegated. (5) Aerial reviews on military installations within the United States if the § 705.19 Financing. review involves more than one Service. (a) The financial requirements for (6) Programmed national sports, pro- community relations purposes will be fessional athletic events, formal inter- kept to the minimum necessary to ac- national competitions, and contests be- complish Department of Defense objec- tween a Navy and professional team in tives. the public domain. See section 0605, (b) Costs of participation will nor- par. 18 of the Navy Public Affairs Regu- mally be at government expense for the lations. following types of events and programs (7) Performing Navy units appearing when they are in the primary interest on regional or national television. of the Department of Defense: (8) Overall planning for Armed Forces (1) Public observances of national Day (not including local activities). holidays. (9) Granting exceptions to policy. (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 Exhibit Center) when this method of regulations. This authority may be del- reaching special audiences is consid- egated. ered by the Secretary of the Navy to be (1) Policy, direction and guidance for the most effective and economical way Unified Command community relations of accomplishing a priority public af- programs are provided to Navy compo- fairs program. nents of these commands by the Uni- (5) Tours by units (e.g., the Navy fied Commander concerned. Band) for which appropriated funds (2) Authority of the Commander-in- have been specifically provided. Chief, Pacific extends to planning and (6) Support of recruiting. execution of community relations pro- (7) Events considered to be in the na- grams in Alaska and Hawaii. Participa- tional interest, or in the professional, tion in events held in Alaska and Ha- scientific, or technical interests of the waii will be governed by the same prin- Navy or Department of Defense, when ciples as policies applicable to other approved by the Secretary of Defense states. or the overseas Unified Commander, as (3) Community relations programs appropriate. and events taking place within the (c) Navy participation in all other United States which have an effect on public events will normally be at no a Unified or Specified Command as a additional costs to the government. whole, or are otherwise of significant (1) Continuing type costs to the gov- concern to the Unified Command, re- ernment which would have existed had quire complete coordination through the Navy not participated in the event appropriate channels between the Uni- will not be reimbursed by the sponsor.

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(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 facilities. (a) Decisions will be made on a case- 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. propriate. (c) Requests for Armed Forces par- (5) It must not be in any direct or im- ticipation in public events are to be plied competition with a commercial submitted on official request forms source. (§§ 705.33, 705.34 and 705.36) by the spon- (6) There must be no potential danger sors of events occurring outside a com- to persons or private property that mand’s area of direct knowledge and could result in a claim against the gov- local capability, or involving a type or ernment. Safety requirements will be level of participation unavailable lo- observed. cally, or requiring approval of higher (b) Use of open mess facilities will be authority. permitted only under one of the fol- (d) Fact sheets expounding upon nor- lowing conditions: mally requested assets are enclosed in (1) Incident to the holding of a pro- §§ 705.33, 705.34 and 705.36 and may be fessional or technical seminar at the reproduced and distributed locally. command. (e) The official request form is to be (2) Incident to an official visit to the used on all requests referred to the command by a civic group. Chief of Information and to the Office (3) Navy League Council luncheon or of Assistant Secretary of Defense (Pub- dinner meetings (not to exceed one per lic Affairs). quarter per group). (4) Incident to group visits by the § 705.22 Relations with community Boy Scouts of America, Boys Clubs of groups. America, the Navy League Sea Cadets (a) Naval commands will cooperate (by virtue of their federal charters), with and assist community groups Girl Scouts and the Navy League Ship- within their capabilities, to the event mates, and a few representative adult authorized by current instructions, and leaders. will participate in their activitis to the (c) Use of the official Navy flag will extent feasible. be in accordance with SECNAVINST (b) Navy commands will encourage 10520.2C and of official emblem in ac- membership of personnel in commu- cordance with OPNAVINST 5030.11B. nity organizations. (d) Requests not meeting the criteria (c) Officers in command will withhold cited here, but which are considered by approval of requests from community the officer in command to have merit, groups, organizations or individuals

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whose purposes are unclear, pending (iii) Commands will not solicit, nor advice from the Chief of Information. authorize others to solicit, contractors (d) Commands may make facilities, to provide advertising, contributions, less housing and messing, available to donations, subscriptions, etc. Where community groups, at no expense to there is a legitimate need for indus- the government, when it is in the best trial promotion items, such as scale interest of the Navy to do so. Mess fa- models, the command will contact the cilities may not be used for meetings of Chief of Information for advice as to civic groups or other asociations unless the procedure for requesting procure- all the members of the group concerned ment. are authorized participants of the mess (iv) Similarly, if Defense contractors as prescribed in NAVPERS 15951, ex- wish to distribute information mate- cept as provided below: rial through official Navy channels, the 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 the product can be clearly and fairly is appropriate in the furtherance of credited to him. In such cases, both the continuing public awareness of the manufacturer’s name for the product Navy and its mission. and the Navy designation of it will be (i) Examples of embarkations for used. public affairs purposes are (but not

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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 District Commandants may authorize (iii) When guests debark in a foreign the embarkation of female civilians for port which is in the geographic area of daylight cruises. Embarkation of civil- a Unified Command other than that in ians for overnight cruises must be au- which the cruise originated, the Chief thorized by the Chief of Naval Oper- of Information will coordinate travel ations via the Chief of Information. by obtaining concurrence of all appro- (5) All guest visits are normally au- priate commanders and the approval of thorized on an unclassified basis. the Chief of Naval Operations, and the (6) In all instances, due precautions Assistant secretary of Defense (Public must be taken for the safety of the Affairs) as appropriate. guests. (See section 0403, pars. 6(b) and, (2) Officers in command to whom au- 6(e), of the Navy Public Affairs Regula- thority to embark guests for public af- tions, for procedures to be followed in fairs purposes is delegated will make the case of death of, or injury to, civil- maximum use of this authority. ians embarked on naval ships.) (c) Secretary of the Navy Guest Cruise (7) For further information on policy, and Guest of the Navy Cruise Programs. procedures, and eligibility criteria, see (1) The objective of these two programs OPNAVINST 5720.2G. is: To expose top-level and middle-level (b) Authority. (1) Authority to estab- opinion leaders in the fields of busi- lish procedures for the conduct of the ness, industry, science, education, and embarkation of guests for public af- labor to the operation of the U.S. fairs purposes (including the Secretary Navy, in order that they may gain a of the Navy Guest Cruise and Guest of better understanding of its capabilities the Navy Cruise programs, which are and problems, the complicated nature discussed in § 705.24) is vested in the of modern sea-based equipment, and Secretary of the Navy. This authority the high levels of responsibility and is limited only insofar as the Chairman training required of Navy men and of the Joint Chiefs of Staff and the women.

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(2) In addition to policy contained in (D) Invitations will be extended by paragraph (c)(1) of this section, the fol- the District of Commandants. Invita- lowing policy guidelines apply to the tions will include: conduct of the Secretary of the Navy (1) Statement of the purpose of the Guest Cruise and the Guest of the Navy Guest of the Navy Cruise Program. Cruise Programs. (2) Authorization for embarkation (i) Secretary of the Navy Guest Cruise and, if applicable, for COD flights, with Program. (A) Only aircraft carriers and instructions for reporting on board. cruisers will be used. (3) Name and rank of the com- (B) Cruises will be conducted once manding officer and, if applicable, each quarter on each coast, contingent name and rank of embarked flag offi- upon the availability of appropriate cer. ships. (4) A caution that guests should not (C) The optimum number of guests is accept the invitation unless they are in 15. good health. (D) Guests will be drawn from top- (5) Statement to the effect that the level executives and leaders who have tempo of operations might cause not had previous exposure to the Navy. changes in scheduling which could re- ‘‘Previous exposure’’ is defined as active sult in the invitation having to be or reserve service in the U.S. Navy or withdrawn. U.S. Marine Corps within the last 10 (E) The following necessary informa- years; membership in the Navy League tion may be included separately with a or any other Navy-oriented organiza- letter of invitation: Recommended tion; or participation in a cruise on a wardrobe, passport and immunization U.S. Navy ship in the last 10 years. requirements, availability of emer- (E) Whenever feasible, Secretary of gency medical and dental facilities, the Navy Guests will be greeted by ship’s store and laundry facilities, CINCLANTFLT or CINCPACFLT, or in statement that guest’s use of a camera their absence by the SOPA. Com- will be authorized subject to certain re- prehensive unclassified briefings will strictions, and a listing of those re- be given dealing with the Navy’s mis- strictions. In addition, the following sion, fleet operations, and current statement will be included with each problems. invitation, or form part of the attached (F) Cruises will vary in length from 3 information sheets: to 7 days, when appropriate, to conform with the operating schedule of the The Department of the Navy has no spe- ship. cific authority to use its funds to defray or reimburse any personal expenses of a navy (ii) Guests of the Navy Cruise Program. guest. As a result, the Department of the (A) All types of ships will be used. This Navy cannot provide you with transpor- will include carriers when available, tation to the port of embarkation or from after selection of a cruise for the Sec- the port of debarkation back to your home. retary of the Navy Guest Cruise Pro- Your expenses for meals will be quite nomi- gram. nal while you are on board a naval ship or fa- (B) Guest of the Navy Cruise guests cility. You should make provision for any extraordinary expense which may arise. For will be drawn from middle-level execu- example, if a personal or other emergency tives and leaders who have not had pre- arises which necessitates your returning vious exposure to the Navy. Guests home during the cruise, you should be pre- should include persons who have direct pared to take commercial transportation at impact on recruiting, such as sec- your own expense from the most distant ondary school principals, guidance point on the cruise itinerary. counselors, coaches and teachers. Navy ships and aircraft, by their very na- (C) Cruises of relatively short dura- ture, present certain hazards not normally encountered on shore. These hazards require tion (3 to 5 days) are preferred, al- persons on board to exercise a high degree of though cruises up to 7 days are author- care for their own safety. ized. Protracted cruises will not be ap- Acceptance of this invitation will be con- proved except for special cir- sidered your understanding of the above ar- cumstances. 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’’ is (1) This program makes available full promulgated by the Officer-in-Charge, color, high quality lithographs which Navy Recruiting Exhibit Center and are faithful reproductions of the origi- supervised by the Chief of Information, nal artwork on quality paper of se- with the concurrence of District Com- lected works of art from the Navy Art mandants. Schedules are arranged so Collection. that the exhibition travels within a (2) Additional information and order- particular Naval District for several ing details are contained in CHINFO months at a time. District Com- NOTICE 5605, which is issued periodi- mandants designate project officers for cally. each city where ‘‘Operation Palette I’’ is [41 FR 29101, July 15, 1976, as amended at 44 exhibited. The project officer makes all FR 6391, Feb. 1, 1979] arrangements, including suitable location, publicity and personnel to assist § 705.30 Aerospace Education Work- the chief petty officer who travels with shop. the collection. Promotional kits are (a) This program is devised by the provided by the Officer-in-Charge, Navy to give students at colleges and Navy Recruiting Exhibit Center. Re- universities conducting teacher train- quests for exhibitions are not desired, ing a comprehensive background in the since the collection always travels on a field of aviation. The teachers in turn 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 ing Department of Defense for accrued ex- U.S. Army Golden Knights: (Cost penses when required: is $25.00 per day per man for each Name: llllllllllllllllllll day required to support your Address: lllllllllllllllllll event. Team consists of 10–14 per- City, State: lllllllll Zip: lllll sonnel.) ...... Telephone: (Office) llll (AC) llllll (Other) ...... llllllllllllllllllllllll 2. Flight and/or Parachute Team demonstra- (home) llllllllll (AC) lllllll tions are restricted to appropriate events llllllllllllllllllllllll at airports, over open bodies of water, or 6. Purpose of this event (explain fully): lll over suitable open areas of land. Please llllllllllllllllllllllll give the specific location of your event ll 7. Expected attendance: lllllllllll llllllllllllllllllllllll 8. Is this event being used to promote funds If an airport, name of airdrome facility and for any purpose? lllllllllllll longest usable landing runway. Airport: l 9. Admission charge: llllllllllll llllllllllllllllllllllll ‘‘Charge for seating: lllllllllllll Runway data:llllllllllllllfeet. 10. Disposition of profits which may accrue: 3. Flyovers, Flight and Parachute Team 11. Will admission, seating and all other ac- demonstrations require that sponsors se- commodations and facilities connected cure FAA clearance or waiver. Will steps with the event be available to all persons be taken by sponsor to accomplish this at without regard to race, creed, color or na- least sixty days prior to the event? llll tional origin? lllllllllllllll 4. Flight and Parachute Team demonstra- 12. Will the standard Military Services al- tions must adhere to FAA regulations lowance for quarters and meals be provided which specify that spectators not be per- by the sponsor for Armed Forces partici- mitted within 1500 feet of an area over pants? lllllllllllllllllll which the flight demonstration takes 13. Will transportation at sponsor’s expense place, or 250 feet of the jump area over be proviced for Armed Forces participants which parachutists are performing. What between the site of this event and hotel? type of crowd control is planned? lllll llllllllllllllllllllllll llllllllllllllllllllllll 14. Will telephone facilities, at sponsor’s ex- 5. Flight and Parachute Team demonstra- pense, be made available for necessary offi- tions require that an ambulance and a doc- cial communications regarding the event? tor be on the site during the demonstra- llllllllllllllllllllllll tion. Will this requirement be met? lll 15. It may be necessary for representatives of 6. Flight and Parachute Team demonstra- the requested unit to visit the site prior to tions require that the sponsor provide a re- the event. Will transportation, meals and cent aerial photograph, taken vertically hotel accommodations be provided by the from an altitude of 5,000 feet or higher, to sponsor? llllllllllllllllll the team(s) giving the demonstration. Will llllllllllllllllllllllll this requirement be met? lllllllll 16. Please describe the space which will be 7. Flight Team demonstrations and Static provided to recruiters: llllllllll Aircraft displays require that the sponsor llllllllllllllllllllllll provide suitable aircraft fuel (JP jet fuel llllllllllllllllllllllll or aviation gas, as appropriate) and pay llllllllllllllllllllllll the cost of transporting and handling this 17. Designate charity beneficiary(s): llll fuel, if it is not available at the staging llllllllllllllllllllllll airport under military contract prices. FLIGHT TEAM, PARACHUTE TEAM, FLYOVERS, Will this requirement be met? llllll STATICS 8. Flight Team demonstrations and Static Aircraft displays require mobile fire- 1. This request is for (check appropriate fighting, crash and ground-to-air commu- line): nications equipment at the demonstration Flight Team Demonstration ...... site. Will this requirement be met? llll U.S. Navy Blue Angels ...... 9. Flight Teams and Static Aircraft displays U.S. Air Force Thunderbirds. (Cost require that the sponsor provide guards for for either team is $1500.00 for the aircraft that land and are parked at each day team scheduled at your the site during their entire stay. Will this event.) ...... requirement be met? lllllllllll Aircraft Flyover: (No cost to spon- 10. Parachute Team demonstrations may re- sor.) ...... quire that the sponsor arrange aircraft Static Aircraft: (Cost is $25.00 per transportation from the team’s home base day per crewmember.) ...... to the location of the event, for use as a U.S. Army Silver Eagles: (Cost for jump platform and return to the home this team is $750.00 for each day base. Will this requirement be met, if nec- team scheduled at your event.) ...... essary? llllllllllllllllll 159

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llllllllllllllllllllllll teams are not authorized. Parades are 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 participation: llllllllllllllllll display of aircraft is the ground display llllllllllllllllllllllll of any military aircraft and its related equipment, not involving flight, tax- CERTIFICATION iing or starting of engines. I certify that the information provided (g) Events which are appropriate for above is complete and correct to the best of Armed Forces aviation participation in my knowledge and belief. I understand that representatives of the Military Services will the public domain include such activi- contact me to discuss arrangements and ties as dedication of airports and facili- costs involved prior to final commitments. ties, aviation shows, expositions, and Signature: llllllllllllllllll fairs; and other civic events which con- (Sponsor’s Representative) tribute to the public knowledge of the Date of Request: llllllllllllll U.S. Military Services aviation equip- Return this form to: llllllllllll ment and capabilities. The number one 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 Department of Defense military flight recruiting aspects of the all-volunteer demonstration teams, the U.S. Air force concept. The approval of any such Force Thunderbirds, the U.S. Navy military demonstration will only be Blue Angels and the U.S. Army Silver authorized if a maximum recruiting Eagles. An aircraft demonstration is a benefit exists at each location. flight demonstration by aircraft other (h) Costs. (1) The cost for either the than those of the teams listed above United States Air Force Thunderbirds and designed to portray tactical capa- or the United States Navy Blue Angels bilities of aircraft by a single aircraft will be $1500 for each day a demonstra- (i.e., the U.S. Marine Corps ‘‘Harrier’’) tion is scheduled. If the United States or group of aircraft, including air-to- Army Golden Knights precision para- air refueling, helicopter hover and chute team is scheduled for your event, pick-up or rappelling capabilities, Low the cost will be $25 per man per day for Altitude Parachute Extraction System, each day required to support your maximum performance take-off, etc. A event, to include the days of travel if parachute demonstration is an exhi- required. Under normal conditions, this bition of free-fall and precision landing group is comprised of fourteen mem- techniques by the official DOD para- bers: Nine jumpers, three aircraft crew- chute team, the U.S. Army Golden men, one ground controller, and a nar- Knights. Other parachute demonstra- rator. The sponsor will be advised by tions can be performed by the U.S. the Golden Knights in advance of the Navy Parachute Team, or another un- costs related to his event for which the official team or sports parachute club government must be reimbursed. The representing the Department of De- United States Army Silver Eagles heli- fense. A flyover is a flight of not more than four aircraft over a fixed point at copter team, composed of seven heli- a specific time and does not involve copters, performs precision formation precision maneuvers or demonstra- manuevers and solo helicopter aero- tions. Flyovers are authorized for cer- batics to demonstrate the capabilities tain events when the presence of of modern helicopters and the skill of Armed Forces aircraft overhead would Army aviators. The Silver Eagles per- contribute to the effectiveness of the formance lasts about 30 minutes and is event based on a direct correlation be- conducted entirely in full view of spec- tween the event and the aircraft. Fly- tators on the crowd line. The cost for overs can also be authorized for occa- the team is $750 for each day a dem- sions primarily designed to encourage onstration is scheduled. The sponsor the advancement of aviation and which should make a check payable to the are of more than local interest. Fly- Treasurer of the United States for the overs by any of the official DOD flight required amount and present it to the

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appropriate demonstration team com- sponsor will be required to pay all mander in advance of the scheduled costs above the contract price and that event. price charged by the local supplier. (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 con- fuel is available from local military ditions is 50 nautical miles. It should stocks—usually military installa- be noted that staged performances are tions—or when fuel is available from seldom authorized since the recruiting commercial into-plane contract loca- potential is reduced at such events. tions, the U.S. Government will pay all (3) The type and number of static fuel costs. If military contract fuel is and/or flyover aircraft which may be not available at the show site, the assigned is entirely dependent upon the

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Military Services’ capability to provide demonstration and 250 feet from a such resources at the time of your parachute demonstration. event. This capability is affected by (i) In some cases, parachute dem- operational commitments and sponsors onstrations require that the sponsor are advised that confirmation of static/ arrange for appropriate transportation flyover aircraft cannot be made by the for the team and equipment from its appropriate Service more than 15–30 home station to the event and return. days before your event. (ii) Mass parachute jumps, drops of (4) The U.S. Army Silver Eagles are equipment, assault aircraft demonstra- normally restricted to performances at tions, or tactical helicopter troop land- airports. Other open land areas may be ings under simulated tactical condi- operationally suitable but require the tions, will be limited to military in- prior approval of the team commander stallations. These activities, except in each case. those scheduled as part of regular (5) Only one flight demonstration training programs, are not authorized team and a parachute demonstration for public events in the civil domain. team may be authorized for any one (8) When civilian air racing is in- event. Military aircraft demonstra- volved in an event where Armed Forces tions may not be authorized for events 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

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event and preferably 60 days in ad- government, military and civic func- vance. tions. (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 sponsored by the Military Services, troops in the public domain. 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 perform- for officially invited government visi- ance of military or patriotic music by tors. a military band, drum and bugle corps (2) Armed Forces musical units may or choral group may be authorized; also be authorized to provide patriotic background, dinner, dance or other so- and military programs at national con- cial music is considered ‘‘entertain- ventions and meetings of nationally- ment.’’ recognized civic, patriotic and veterans (b) Requests received for military organizations. musical participation in appropriate (d) Bands, drill teams and other units events in the civilian domain must in- can normally participate at no cost to clude an indication from the sponsor the sponsor if the event is within the that there is no conflict with the local installation’s immediate community civilian musicians concerning the ap- relations area (approximately 100-mile pearance of Navy musicians. A state- radius). ment to this effect from the cognizant (1) Normally, not more than one band local musicians’ union must be ob- or other musical unit will be author- tained by the sponsor and attached to ized for a parade in the civilian do- his request. main. This guidance intended to assure (c) Armed Forces musical units may widest possible participation in public be authorized to provide certain speci- events of local interest (particularly on fied musical programs in the public do- national holidays) does not apply to main. The performance must not place national convention of veterans’ military musicians in competition groups or other events having national with professional civilian musicians. significance. Background, dinner, dance or other so- (2) All Armed Forces participation in cial music cannot be authorized. The international and national events, and specified programs which may be au- in the Washington, DC area, must be thorized usually include a short open- authorized by the Assistant Secretary ing or closing patriotic presentation. of Defense (Public Affairs). Musical selections normally consist of (3) Requests for Armed Forces musi- a medley of military or patriotic songs, cal or troop units when no military in- honors to the President or Vice Presi- stallation is accessible, or for the dent (if he is there), or music to accom- Washington, DC-based ceremonial pany the presentation of colors by a bands or troop units (when the event is Color Detail. outside the Washington, DC area), (1) Armed Forces musical units may should be addressed to the parent Serv- be authorized to participate in official 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]

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PART 706—CERTIFICATIONS AND shown in combination with the naviga- EXEMPTIONS UNDER THE INTER- tional lights. NATIONAL REGULATIONS FOR (c) During peacetime naval maneu- PREVENTING COLLISIONS AT SEA, vers, naval ships, alone or in company, 1972 may also dispense with showing any lights, though efforts will be made to display lights on the approach of ship- Sec. ping. 706.1 Purpose of regulations. 706.2 Certifications of the Secretary of the (d) Executive Order 11964 of January Navy under Executive Order 11964 and 33 19, 1977, and 33 U.S.C. 1605 provide that U.S.C. 1605. the requirements of the International 706.3 Exemptions by the Secretary of the Regulations for Preventing Collisions Navy under Executive Order 11964. at Sea, 1972, as to the number, position, AUTHORITY: 33 U.S.C. 1605. range, or arc of visibility of lights or shapes, as well as to the disposition § 706.1 Purpose of regulations. and characteristics of sound-signalling (a) All ships are warned that, when appliances, shall not apply to a vessel U.S. naval vessels are met in inter- of the Navy where the Secretary of the national waters, certain navigational Navy shall find and certify that, by lights and sound-signalling appliances reason of special construction or pur- of some naval vessels may vary from pose, it is not possible for such vessel the requirements of the International to comply fully with the provisions Regulations for Preventing Collisions without interfering with the special at Sea, 1972 (33 U.S.C. foll. section 1602 function of the vessel. (1982)), as to number, position, range, (e) Executive Order 11964 also pro- or arc of visibility of lights, as well as vides that the Secretary of the Navy is to the disposition and characteristics authorized to exempt, in accordance of sound-signalling appliances. Those with Rule 38 of the International Regu- differences are necessitated by reason lations for preventing Collisions at of the special construction or purpose Sea, 1972, any vessel, or class of vessels, of the naval ships. An example is the the keel of which is laid, or which is at aircraft carrier where the two mast- a corresponding stage of construction, head lights are considerably displaced before July 15, 1977, from full compli- from the center or keel line of the ves- ance with the International Regula- sel when viewed from ahead. Certain tions, provided that such vessel, or other naval vessels cannot comply with class of vessels, complies with the re- the horizontal separation requirements quirements of the International Regu- for masthead lights, and the two mast- lations for Preventing Collisions at head lights on even large naval vessels Sea, 1960. will thus appear to be crowded together (f) This part consolidates and codifies when viewed from a distance. Naval certifications and exemptions granted vessels may also have unorthodox navi- by the Secretary of the Navy under Ex- gational light arrangements or characteristics when seen either underway or ecutive Order 11964 and 33 U.S.C. 1605. at anchor. It has been determined that, because of their special construction or purpose, (b) Naval vessels may also be expected to display certain other lights. the vessels and classes of vessels listed These lights include, but are not lim- in this part cannot comply fully with ited to, different colored rotating bea- all of the requirements of the Inter- cons, different colored fixed and rotary national Regulations for Preventing wing aircraft landing signal lights, red Collisions at Sea, 1972. aircraft warning lights, and red or blue [42 FR 36434, July 14, 1977, as amended at 42 contour approach lights on replenish- FR 48876, Sept. 26, 1977; 45 FR 43165, June 26, ment-type ships. These lights may be 1980; 52 FR 4770, Feb. 17, 1987]

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§ 706.2 Certifications of the Secretary TABLE ONE—Continued of the Navy under Executive Order Distance in 11964 and 33 U.S.C. 1605. meters of The Secretary of the Navy hereby forward masthead finds and certifies that each vessel list- Vessel Number light below ed in this section is a naval vessel of minimum required special construction or purpose, and height. that, with respect to the position of § 2(a)(i) Annex I the navigational lights listed in this section, it is not possible to comply USS RODNEY M. DAVIS ...... FFG 60 1.6 fully with the requirements of the pro- USS INGRAHAM ...... FFG 61 1.37 USS OGDEN ...... LPD 5 4.15 visions enumerated in the Inter- USS DULUTH ...... LPD 6 4.4 national Regulations for Preventing USS DUBUQUE ...... LPD 8 4.2 Collisions at Sea, 1972, without inter- USS DENVER ...... LPD 9 4.4 USS JUNEAU ...... LPD 10 4.27 fering with the special function of the USS TRIPOLI ...... LPH 10 3.3 vessel. The Secretary of the Navy fur- LCAC (class) ...... LCAC 1 1 6.51 ther finds and certifies that the naviga- through LCAC 100 tional lights in this section are in the LCAC (class) ...... LCAC 1 2 7.94 closest possible compliance with the through applicable provisions of the Inter- LCAC 100 national Regulations for Preventing USS INCHON ...... MCS 12 3.0 NR–1 ...... NR 1 2.7 Collisions at Sea, 1972. USS SEAWOLF ...... SSN 21 4.62 USS CONNECTICUT ...... SSN 22 4.62 TABLE ONE USS PARCHE ...... SSN 683 3.58 USS KAMEHAMEHA ...... SSN 642 3.58 Distance in USS MENDEL RIVERS ...... SSN 686 2.40 meters of USS LOS ANGELES ...... SSN 688 6.10 forward USS PHILADELPHIA ...... SSN 690 6.10 masthead light below USS MEMPHIS ...... SSN 691 6.10 Vessel Number minimum USS BREMERTON ...... SSN 698 3.49 required USS JACKSONVILLE ...... SSN 699 3.35 height. USS DALLAS ...... SSN 700 3.5 § 2(a)(i) USS LA JOLLA ...... SSN 701 3.5 Annex I USS CITY OF CORPUS CHRISTI SSN 705 3.5 USS ALBUQUERQUE ...... SSN 706 3.5 USS DOLPHIN ...... AGSS 555 0.8 USS PORTSMOUTH ...... SSN 707 3.5 USS MC INERNY ...... FFG 8 1.6 USS MINNEAPOLIS-ST. PAUL .... SSN 708 3.5 USS CLARK ...... FFG 11 1.6 USS HYMAN G. RICKOVER ...... SSN 709 3.5 USS GEORGE PHILIP ...... FFG 12 1.6 USS AUGUSTA ...... SSN 710 3.5 USS SAMUEL ELIOT MORISON .. FFG 13 1.6 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 USS VANDEGRIFT ...... FFG 48 1.6 USS TOPEKA ...... SSN 754 3.5 USS ROBERT G. BRADLEY ...... FFG 49 1.6 USS MIAMI ...... SSN 755 3.5 USS TAYLOR ...... FFG 50 1.6 USS SCRANTON ...... SSN 756 3.5 USS GARY ...... FFG 51 1.6 USS ALEXANDRIA ...... SSN 757 3.5 USS CARR ...... FFG 52 1.6 USS ASHEVILLE ...... SSN 758 3.5 USS HAWES ...... FFG 53 1.6 USS JEFFERSON CITY ...... SSN 759 3.4 USS FORD ...... FFG 54 1.6 USS ANNAPOLIS ...... SSN 760 3.5 USS ELROD ...... FFG 55 1.6 USS SPRINGFIELD ...... SSN 761 3.5 USS SIMPSON ...... FFG 56 1.6 USS COLUMBUS ...... SSN 762 3.5 USS REUBEN JAMES ...... FFG 57 1.6 USS SANTA FE ...... SSN 763 3.5 USS SAMUEL B. ROBERTS ...... FFG 58 1.6 USS BOISE ...... SSN 764 3.5 USS KAUFFMAN ...... FFG 59 1.6 USS MONTPELIER ...... SSN 765 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 CHARLOTTE ...... SSN 766 3.5 USS NEVADA ...... SSBN 733 3.70 USS HAMPTON ...... SSN 767 3.5 USS TENNESSEE ...... SSBN 734 3.70 USS HARTFORD ...... SSN 768 3.5 USS PENNSYLVANIA ...... SSBN 735 3.70 USS TOLEDO ...... SSN 769 3.5 USS WEST VIRGINIA ...... SSBN 736 3.70 USS TUCSON ...... SSN 770 3.5 USS KENTUCKY ...... SSBN 737 3.70 USS COLUMBIA ...... SSN 771 3.5 USS MARYLAND ...... SSBN 738 3.70 USS GREENEVILLE ...... SSN 772 3.5 USS NEBRASKA ...... SSBN 739 3.70 USS CHEYENNE ...... SSN 773 3.5 USS RHODE ISLAND ...... SSBN 740 3.70 USS OHIO ...... SSBN 726 3.70 USS MAINE ...... SSBN 741 3.70 USS MICHIGAN ...... SSBN 727 3.70 USS WYOMING ...... SSBN 742 3.70 USS FLORIDA ...... SSBN 728 3.70 USS LOUISIANA ...... SSBN 743 3.70 USS GEORGIA ...... SSBN 729 3.70 1 The permanent masthead light is 5.26 meters athwartship USS HENRY M. JACKSON ...... SSBN 730 3.70 to port of centerline, 5.49 meters above the main deck. USS ALABAMA ...... SSBN 731 3.70 2 The temporary masthead light is 3.98 meters athwartship USS ALASKA ...... SSBN 732 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) ...... CSP–101 1.62 ...... 3.93 through CSP–182 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 ...... 0.51 ...... 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 RONALD REAGAN ...... CVN 76 31.09 ...... 0.56 ...... USS TARAWA ...... LHA 1 10.0 ...... 1 ...... 1 2.4 71.0 ...... USS SAIPAN ...... LHA 2 10.1 ...... 1 ...... 1 2.8 72.1 ...... USS BELLEAU WOOD ...... LHA 3 10.0 ...... 2.7 72.4 ...... USS NASSAU ...... LHA 4 10.0 ...... 2.7 72.4 ...... USS PELELIU ...... LHA 5 10.0 4 ...... 2.6 72.4 ...... USS WASP ...... LHD 1 9.0 ...... 2.8 89.0 ...... USS ESSEX ...... LHD 2 ...... 3.1 91.1 ...... USS KEARSARGE LHD 3 8.9 ...... 3.0 91 ...... USS BOXER ...... LHD 4 ...... 3.0 90.9 ...... USS BATAAN ...... LHD 5 ...... 2.9 98.6 ......

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TABLE TWO—Continued

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) ...... SLWT–6 1.62 ...... 3.93 SLWT (class) ...... SLWT–8 1.62 ...... 3.93 through SLWT–19 SLWT (class) ...... SLWT–22 1.62 ...... 3.93 through SLWT–24 SLWT (class) ...... SLWT–26 1.62 ...... 3.93 through SLWT–65 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 ...... PC–8 ...... 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 ...... PC–13 ...... 1 28.26 3.01 1.1 below USS TORNADO ...... PC–14 ...... 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 NR–1 ...... NR 1 238.51⁄2 114° 136.5° 1.5 4.1 2.1 USS SEAWOLF ...... SSN 21 225° 111.5° 205° 5.1 10.7 2.8 1.8 below USS CONNECTICUT SSN 22 232° 112.8° 207° 5.1 10.7 2.8 1.63 below. USS KAMEHAMEHA .. SSN 642 236° 117° 252° 3.8 7.6 2.1 same height

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TABLE THREE—Continued

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 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

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TABLE THREE—Continued

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 1. Ships other than aircraft carrier types of two lights, one light port and one light (CV, CVN, LHA, LHD, and LPH) may not si- starboard on the mast or superstructure at multaneously exhibit the masthead lights re- each location in the vertical array. quired by Rule 27(b)(iii) and the lights re- 3. The second masthead light required by quired by Rule 27(b)(i) for vessels restricted Rule 23(a)(ii) and the lights and shapes rein their ability to maneuver when such si- quired by Rules 24, 27, and 30(d)(i) are not multaneous exhibition will present a hazard displayed by submarines. to their own safe operations. In those in- 4. On mine warfare type ships the mast- stances, the lights required by Rule 27(b)(i) head lights will not always be above and will be exhibited. Ships conducting flight op- clear of the minesweeping lights, as is required 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 forward Relationship of after mast- Relationship of after mast- Vessel MSO No. masthead light to all mine- head light to lower mine- head light to upper minesweeping lights sweeping lights sweeping 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 forward of vessel on the CSP Class and SLWT Class. 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 USS DEWERT ...... FFG 45 2.75 by Rule 23(a)(i) may be obstructed through 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 section 706.2 provide the dimensions of clos- USS DEWERT ...... FFG 45 est possible compliance of LCAC-class am- USS RENTZ ...... FFG 46 phibious vessels with the aforementioned USS NICHOLAS ...... FFG 47 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 with the aforementioned rules is not obtain- USS HAWES ...... FFG 53 able. USS FORD ...... FFG 54 In LCAC-class amphibious vessels, there USS ELROD ...... FFG 55 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 head light is located 3.98 meters athwartship USS INGRAHAM ...... FFG 61 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 MASON ...... DDG 87 1.87 meters not be shown; however, an auxiliary mast- USS PREBLE ...... DDG 88 1.93 meters head light not meeting with Annex I, section USS MUSTIN ...... DDG 89 1.93 meters 2(a)(i) height requirement will be exhibited. USS CHAFEE ...... DDG 90 1.90 meters USS PINCKNEY ...... DDG 91 1.87 meters. Distance in meters of aux. masthead light 16. On the following ships, the arc of visi- Vessel No. below minimum re- bility of the forward masthead light, required height. Annex quired by rule 21(a), may be obstructed at I, sec. 2(a)(i) the following angles relative to ship’s head- YTB 769 ...... 3 .86 ing: YTB 771 ...... 3 .89 YTB 781 ...... 3 .66 Vessel Number Obstruction angle rel- YTB 789 ...... 3 .30 ative ship’s headings YTB 806 ...... 3 .58 YTB 812 ...... 4 .04 USS ARLEIGH BURKE ... DDG 51 100.00° thru 112.50° YTB 813 ...... 6 .15 USS BARRY ...... DDG 52 101.16° thru 112.50° YTB 820 ...... 3 .30 USS JOHN PAUL JONES DDG 53 103.29° thru 112.50° YTB 833 ...... 3 .68 USS CURTIS WILBUR ... DDG 54 102.61° thru 112.50° YTB 835 ...... 4 .04 USS STOUT ...... DDG 55 102.00° thru 112.50° USS JOHN S. MCCAIN .. DDG 56 102.53° thru 112.50° 15. Task (restricted maneuverability) USS MITSCHER ...... DDG 57 102.27° thru 112.50° ° ° lights on the following ships do not comply USS LABOON ...... DDG 58 102.80 thru 112.50 USS RUSSELL ...... DDG 59 92.62° thru 109.38° with Annex I, section 3(c). USS PAUL HAMILTON ... DDG 60 101.35° thru 112.50° USS RAMAGE ...... DDG 61 103.66° thru 112.50° Horizontal dis- USS FITZGERALD ...... DDG 62 108.30° thru 112.50° tance from the ° fore and aft USS STETHEM DDG 63 108.5 thru 112.50 Vessel Number centerline of USS CARNEY ...... DDG 64 105.06° thru 112.50° the vessel in USS GONZALES ...... DDG 66 101.69° thru 112.50° the athwart- USS COLE ...... DDG 67 101.83° thru 112.50° ship direction USS THE SULLIVANS .... DDG 68 103.06° thru 112.50° USS MILIUS ...... DDG 69 102.30° thru 112.50° USS ARLEIGH BURKE ...... DDG 51 1.85 meters USS HOPPER ...... DDG 70 102.25° thru 112.50° USS BARRY ...... DDG 52 1.94 meters USS ROSS ...... DDG 71 104.05° thru 112.50° USS JOHN PAUL JONES ...... DDG 53 1.89 meters USS MAHAN ...... DDG 72 102.11° thru 112.50° USS CURTIS WILBUR ...... DDG 54 1.90 meters USS DECATUR ...... DDG 73 103.00° thru 112.50° USS STOUT ...... DDG 55 1.90 meters USS MCFAUL ...... DDG 74 102.00° thru 112.50E° USS JOHN S. MCCAIN ...... DDG 56 1.88 meters USS DONALD COOK ..... DDG 75 108.78° thru 112.50° USS MITSCHER ...... DDG 57 1.93 meters USS HIGGINS ...... DDG 76 108.60 thru 112.50° USS LABOON ...... DDG 58 1.90 meters USS O’KANE ...... DDG 77 102.00 thru 112.50° USS RUSSELL ...... DDG 59 1.91 meters USS PORTER ...... DDG 78 108.43 thru 112.50° USS PAUL HAMILTON ...... DDG 60 1.88 meters USS OSCAR AUSTIN ..... DDG 79 107.94 thru 112.50°. USS RAMAGE ...... DDG 61 1.91 meters USS ROOSEVELT ...... DDG 80 109.34 thru 112.50°. USS FITZGERALD ...... DDG 62 1.90 meters USS WINSTON S. DDG 81 101.96 thru 112.50°. USS STETHEM ...... DDG 63 1.91 meters CHURCHILL. USS CARNEY ...... DDG 64 1.90 meters USS LASSEN ...... DDG 82 109.11 thru 112.50° USS BENFOLD ...... DDG 65 1.90 meters USS HOWARD ...... DDG 83 109.11 thru 112.50° USS GONZALES ...... DDG 66 1.90 meters USS BULKELEY ...... DDG 84 109.60 thru 112.50° USS COLE ...... DDG 67 1.90 meters USS MCCAMPBELL ...... DDG 85 108.61 thru 112.50° USS THE SULLIVANS ...... DDG 68 1.87 meters USS SHOUP ...... DDG 86 190.46 thru 112.50° USS MILIUS ...... DDG 69 1.93 meters USS MASON ...... DDG 87 108.03 thru 112.50° USS HOPPER ...... DDG 70 1.83 meters USS PREBLE ...... DDG 88 109.20 thru 112.50° USS ROSS ...... DDG 71 1.96 meters USS MUSTIN ...... DDG 89 107.83 thru 112.50° USS MAHAN ...... DDG 72 1.90 meters USS CHAFEE ...... DDG 90 108.88 thru 112.50° USS DECATUR ...... DDG 73 1.87 meters USS PINCKNEY ...... DDG 91 107.07 thru 112.50° USS MCFAUL ...... DDG 74 1.91 meters USS DONALD COOK ...... DDG 75 1.90 meters 17. The second masthead light required by USS HIGGINS ...... DDG 76 1.92 meters USS O’KANE ...... DDG 77 1.92 meters Rule 23(a)(ii) will not be displayed on the PC USS PORTER ...... DDG 78 1.92 meters 1 Class. USS ROOSEVELT ...... DDG 80 1.90 meters 18. On the following mine warfare type USS WINSTON S. CHURCHILL DDG 81 1.87 meters. ships, the arc of visibility of the lower all- USS HOWARD ...... DDG 83 1.88 round minesweep lights required by Rule USS LASSEN ...... DDG 82 1.93 USS BULKELEY ...... DDG 84 1.90 27(f), may be obstructed through the fol- USS MCCAMPBELL ...... DDG 85 1.85 meters. lowing angles relative to the ship’s heading: USS SHOUP ...... DDG 86 1.90 meters.

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Obscured angles relative to 19. Sidelights on the following ships do not Vessel Number ship’s heading comply with Annex I, Section 2 (g): Port STBD Num- Distance in meters of ° ° ° ° Vessel sidelights above max- OSPREY ...... MHC 51 59.5 to 78.3 281.7 to 300.5 ber imum allowed height. HERON ...... MHC 52 59.5° to 78.3° 281.7° to 300.5° PELICAN ...... MHC 53 59.5° to 78.3° 281.7° to 300.5° USS OGDEN ...... LPD 5 3.40 ROBIN ...... MHC 54 59.5° to 78.3° 281.7° to 300.5° USS DUBUQUE ...... LPD 8 1.2 ORIOLE ...... MHC 55 65.0° to 75.6° 284.1° to 294.6° USS DENVER ...... LPD 9 4.9 CORMORANT MHC 57 59.5° to 78.3° 281.7° to 300.5° USS JUNEAU ...... LPD 1.6 BLACK HAWK MHC 58 65.0° to 75.6° 284.1° to 294.6° 10 USS FALCON MHC 59 65.0° to 75.6° 284.1° to 294.6° CARDINAL ..... MHC 60 65.0° to 75.6° 284.1° to 294.6°

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 RONALD REAGAN ...... CVN 76 ...... X USS SPRUANCE ...... DD 963 ...... X X 46 USS PAUL F. FOSTER ...... DD 964 ...... X X 46.4 USS KINKAID ...... DD 965 ...... X X 46.4

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TABLE FIVE—Continued

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 14.0 USS BENFOLD ...... DDG 65 X X X 21.0 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 14.6 USS LASSEN ...... DDG 82 X X X 14.5 USS BULKELEY ...... DDG 84 X X X 14.7 USS MCCAMPBELL ...... DDG 85 X X X 14.6 USS SHOUP ...... DDG 86 X X X 14.6 USS MASON ...... DDG 87 X X X 14.5 USS PREBLE ...... DDG 88 X X X 14.7 USS MUSTIN ...... DDG 89 X X X 14.4 USS CHAFEE ...... DDG 90 X X X 14.6 USS PINCKNEY ...... DDG 91 X X X 14.4 USS BLUE RIDGE ...... LCC 19 N/A N/A X 84 USS MOUNT WHITNEY ...... LCC 20 ...... X 84 USS TARAWA ...... LHA 1 ...... X X 13

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TABLE FIVE—Continued

USS SAIPAN ...... LHA 2 ...... X X 10.2 USS BELLEAU WOOD ...... LHA 3 ...... X X 13 USS NASSAU ...... LHA 4 ...... X X 13 USS PELELIU ...... LHA 5 ...... X X 13 USS WASP ...... LHD 1 ...... X X 41 USS ESSEX ...... LHD 2 ...... X X 39 USS KEARSARGE ...... LHD 3 ...... X X 39.5 USS BOXER ...... LHD 4 ...... X X 39.3 USS BATAAN ...... LHD 5 ...... X X 39.7 USS BONHOMME RICHARD ...... LHD 6 ...... X X 39.8 USS 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]

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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.

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 already have entries for the ship.

§ 706.3 Exemptions by the Secretary of 707.3 Yard arm signaling lights. the Navy under Executive Order 707.4 Aircraft warning lights. 11964. 707.5 Underway replenishment contour lights. The Secretary of the Navy hereby ex- 707.6 Minesweeping station keeping lights. empts, in accordance with Rule 38 of 707.7 Submarine identification light. the International Regulations for Pre- 707.8 Special operations lights. venting Collisions at Sea, 1972, the ves- 707.9 Convoy operations stern light. sels and classes of vessels listed in this 707.10 Wake illumination light. section, from full compliance with the 707.11 Flight operations lights. Regulations, where an exemption is al- 707.12 Amphibious operations lights. lowed by, and for the periods specified AUTHORITY: 33 U.S.C. 182 and 1606, E.O. in, Rule 38. The Secretary of the Navy 11964. further finds that the vessels and classes of vessels listed have had their keels SOURCE: 42 FR 61596, Dec. 6, 1977, unless otherwise noted. laid or are in corresponding stages of construction before July 15, 1977, and § 707.1 Purpose of regulations. that such vessels and classes of vessels comply with the requirements of the All ships are warned that when U.S. International Regulations for Pre- naval vessels are met in international venting Collisions at Sea, 1960. and inland waters, some of the naviga- TABLE ONE tional lights displayed by them may be [The following vessels and classes of vessels, less than 150 special lights for naval purposes. When meters in length, are permanently exempted pursuant to used, they may be displayed simulta- rule 38(d)(i) from repositioning of masthead lights resulting from the prescriptions of Annex I, section 3(a)] neously with the ordinary navigational lights required by the International Vessel or class Regulations for Preventing Collisions USNS HAYES (T–AG–195) at Sea, 1972, or the Inland Navigational T–AGOR 3 Class Rules. The lights are located and char- T–AGS 26 Class acterized in such a fashion that, as far T–AOG 77 Class as possible, they cannot be mistaken T–ATF 166 Class DDG 2 Class for any light authorized by either set FF 1040 Class of rules. This part publishes the special FF 1052 Class rules with respect to these additional FFG 7 Class LCU 1610 Class station and signal lights promulgated LCU 1648 Class by the Secretary of the Navy for ves- USS DOLPHIN (AGSS 555) sels of the Navy. SSN 594 Class SSN 637 Class SSN 688 Class § 707.2 Man overboard lights. SSBN 726 Class Naval vessels may display, as a YFU (Ex-LCU 1466 Class) means of indicating man overboard, [42 FR 36434, July 14, 1977, as amended at 55 two pulsating, all round red lights in FR 27818, July 9, 1990; 60 FR 22506, May 8, the vertical line located on a mast 1995; 65 FR 79742, Dec. 20, 2000] from where they can best be seen. PART 707—SPECIAL RULES WITH RE- § 707.3 Yard arm signaling lights. SPECT TO ADDITIONAL STATION Naval vessels may display, as a AND SIGNAL LIGHTS means of visual signaling, white all round lights at the ends of the yard Sec. arms. These lights will flash in varying 707.1 Purpose of regulations. sequences to convey the intended sig- 707.2 Man overboard lights. nal.

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§ 707.4 Aircraft warning lights. ations, a revolving beam colored red, Naval vessels may display, as a green, or amber, located on either yard means of indicating the presence of an arm or the mast platform from where obstruction to low flying aircraft, one it can best be seen all around the hori- all round red light on each obstruction. zon.

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

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

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

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

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

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

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

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

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

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

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

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

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

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the due administration of military jus- part of an Article 32 investigation tice either before, during, or after trial. under 10 U.S.C. 832 be held in closed (6) Exceptional cases. The provisions session and that all persons not con- of this section are not intended to re- nected with the hearing be excluded strict the release of information de- therefrom. The decision to exclude signed to enlist public assistance in ap- spectators may be based on the need to prehending an accused or suspect who protect classified information, to pre- is a fugitive from justice or to warn the vent disclosure of matters that will be public of any danger that a fugitive ac- inadmissible in evidence at a subse- cused or suspect may present. Further, quent trial by Courts-Martial and are since the purpose of this section is to of such a nature as to interfere with a prescribe generally applicable guide- fair trial by an impartial tribunal, or lines, there may be exceptional cir- consistent with appellate case law, for cumstances which warrant the release a reason deemed appropriate by the of information prohibited under para- commander ordering the investigation graph (a)(5) of this section or the non- or the investigating officer. The rea- release of information permitted under sons for closing an Article 32 investiga- paragraph (a)(4) of this section. Atten- tion, and any objections thereto, shall tion should be given to the Secretary be memorialized and included as an at- of the Navy instructions implementing tachment to the report of investiga- the Freedom of Information Act tion. Ordinarily, the proceedings of a (5720.42 series) and the Privacy Act pretrial investigation should be open to (5211.5C series). Consultation with the spectators. In cases dealing with classi- command judge advocate, if one is as- fied information, the investigating offi- signed, or with the cognizant Naval cer will ensure that any part of a pre- Legal Service Office concerning inter- trial investigation (e.g., rights advise- pretation and application of these in- ment) that does not involve classified structions is encouraged. information will remain open to spec- (b) Spectators. (1) The sessions of tators. courts-martial shall be open to the [38 FR 5997, Mar. 6, 1973, as amended at 47 FR public, which includes members of both 49644, Nov. 2, 1982; 50 FR 23800, June 6, 1985; the military and civilian communities. 69 FR 20540, Apr. 16, 2004] In order to maintain the dignity and decorum of the proceedings or for other good cause, the military judge may Subpart D [Reserved] reasonably limit the number of spectators in, and the means of access to, Subpart E—Miscellaneous Matters the courtroom, exclude specific persons from the courtroom, and close a ses- § 719.138 Fees of civilian witnesses. sion. Video and audio recording and (a) Method of Payment. The fees and taking of photographs, except for the mileage of a civilian witness shall be purpose of preparing the record of trial, paid by the disbursing officer of the in the courtroom during the pro- command of a convening authority or ceedings and radio or television broad- appointing authority or by the dis- casting of proceedings from the court- bursing officer at or near the place room shall not be permitted. The mili- where the tribunal sits or where a dep- tary judge may, as a matter of discre- osition is taken when such disbursing tion, permit contemporaneous closed– officer is presented a properly com- circuit video or audio transmission to pleted public voucher for such fees and permit viewing or hearing by an ac- mileage, signed by the witness and cer- cused removed from the courtroom or tified by one of the following: by spectators when courtroom facili- (1) Trial counsel or assistant trial ties are inadequate to accommodate a counsel of the court-martial; reasonable number of spectators. (2) Summary court officer; (2) At pretrial investigations. Con- (3) Counsel for the court in a court of sistent with Rules for Courts-Martial inquiry; 405(h)(3), Manual for Courts-Martial, (4) Recorder or junior member of a the Convening Authority or inves- board to redress injuries to property, tigating officer may direct that all or or

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(5) Military or civil officer before with a certificate of the appropriate whom a deposition is taken. person named in paragraph (a) of this The public voucher must be accom- section, to the effect that the payment panied by a subpoena or invitational was necessary. orders (Joint Travel Regulations, vol. (d) Certificate of person before whom 2, chap. 6), and by a certified copy of deposition is taken. The certificate of the order appointing the court-martial, the person named in paragraph (a) of court of inquiry, or investigation. If, this section, before whom the witness however, a deposition is taken before gave his deposition, will be evidence of charges are referred for trial, the fees the fact and period of attendance of the and mileage of the witness concerned witness and the place from which sum- shall be paid by the disbursing officer moned. at or near the place where the deposi- (e) Payment of accrued fees. The wit- tion is taken upon presentation of a ness may be paid accrued fees at his republic voucher, properly completed as quest at any time during the period of hereinbefore prescribed, and accom- attendance. The disbursing officer will panied by an order from the officer who make such interim payment(s) upon re- authorized the taking of the deposi- ceipt of properly executed certifi- tion, subscribed by him and directing cate(s). Upon his discharge from at- the disbursing officer to pay to the wit- tendance, the witness will be paid, ness the fees and mileage supported by upon the execution of a certificate, a the public voucher. When the civilian final amount covering unpaid fees and witness testifies outside the United travel, including an amount for return States, its territories and possessions, travel. Payment for return travel will the public voucher must be accom- be made upon the basis of the actual panied by a certified copy of the order fees and mileage allowed for travel to appointing the court-martial, court of the court, or place designated for tak- inquiry, or investigation, and by an ing a deposition. order from the convening authority or (f) Computation. Travel expenses shall appointing authority, subscribed by be determined on the basis of the him and directing the disbursing offi- shortest usually traveled route in ac- cer to pay to the witness the fees and cordance with official schedules. Rea- mileage supported by the public vouch- sonable allowance will be made for un- er. avoidable detention. (b) Obtaining money for advance tender (g) Nontransferability of accounts. Ac- or payment. Upon written request by counts of civilian witnesses may not be one of the officers listed in paragraph transferred or assigned. (a) of this section, the disbursing offi- (h) Signatures. Signatures of wit- cer under the command of the con- nesses signed by mark must be wit- vening or appointing authority, or the nessed by two persons. disbursing officer nearest the place (i) Rates for civilian witnesses pre- where the witness is found, will, at scribed by law—(1) Civilian witnesses not once, provide any of the persons listed in Government employ. A civilian not in in paragraph (a) of this section, or any Government employ, who is compelled other officer or person designated for or required to testify as a witness be- the purpose, the required amount of fore a Naval tribunal at a specified money to be tendered or paid to the place or to appear at a place where his witness for mileage and fees for one deposition is to be taken for use before day of attendance. The person so re- a court or fact-finding body, will 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:

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

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convening the proceedings or to the measures short of suspension or decer- Judge Advocate General. tification are not appropriate or will (b) Form of Report. The report shall: not be effective, forward the original (1) Be in writing, under oath or affir- complaint, a written report of the in- mation, and made and signed by the inquiry or investigation, all other rel- dividual reporting the information. evant information, and his or her com- (2) State that the individual report- ments and recommendations to the of- ing the information has personal ficer in the chain of command exer- knowledge or belief or has otherwise cising general court-martial authority. received reliable information indi- (2) Action by Officer Exercising General cating that: Court-Martial Authority. (i) Upon re- (i) The counsel is, or has been, unable ceipt of a report of an allegation of to discharge properly all the duties of misconduct or disability of a counsel, his or her office by reason of mental or the officer exercising general court- physical disability; or martial convening authority: (ii) The counsel is or has been en- (A) May take the action authorized gaged in professional or personal mis- by subsections (c)(1)(i), (ii) or (iii); or conduct of such a serious nature as to (B) Shall, if he or she considers that demonstrate that he or she is lacking evidence of disability or professional or in integrity or is failing to meet the personal misconduct exists and that ethical standards of the profession; or other remedial measures short of sus- (iii) The counsel is unworthy or un- pension or decertification are not ap- qualified to perform his or her duties; propriate or will not be effective, ap- (3) Set forth the grounds of the alle- point a board of officers to investigate gation together with all relevant facts; the matter and to report its findings and and its recommendations. This board (4) Be forwarded to the appropriate shall be comprised of at least three of- authority as set forth in paragraph (a). ficers, each an Article 27(b), Uniform (c) Consideration of the Report—(1) Ac- Code of Military Justice, certified tion by the Commanding Officer of a judge advocate. If practicable, each of judge advocate. Upon receipt of the re- the officers of the board should be sen- port, the commanding officer: ior to the judge advocate under inves- (i) Shall dismiss any report relating tigation. If the counsel is a member of to the performance of a judge advocate the Marine Corps, a majority of the more properly appealed under law or members of the board should be Marine any report that is frivolous, unfounded, Corps judge advocates. The senior offi- or vague and return it to the reporting cer of the board shall cause notice to individual; be given to the counsel, judge advocate (ii) May make further inquiry into or civilian (respondent), informing him the report at his or her discretion to or her of the misconduct or other dis- determine the merits of the report. The qualification alleged and affording him commanding officer may appoint an of- or her the opportunity to appear before ficer to investigate informally the alle- the board for a hearing. The respondent gations of the report to determine shall be permitted at least ten (10) whether further action is warranted. days’ notice prior to the hearing. Fail- 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

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

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(x) Flagrant or repeated violations of be submitted by the accused person- the Uniform Rules of Practice Before ally, or by accused’s counsel, regard- Navy-Marine Corps Courts-Martial as less of whether the accused has been outlined in appendix A–1-p(1) of the separated from the service. A petition Manual of the Judge Advocate General. may not be submitted after the death (xi) Flagrant or repeated violations of the accused. of the provisions of section 0134 of this (c) Contents of petitions: The form and Manual of the Judge Advocate General contents of petitions for new trial are dealing with the Release of Information specified in MCM, 1984, R.C.M. 1210(c). Pertaining to Accused Persons; Spectators The petition for a new trial shall be at Judicial Sessions. written and shall be signed under oath (xii) Failure to meet the rules set or affirmation by the accused, by a per- forth in the ABA Code of Professional son possessing the power of attorney of Responsibility and the ABA Standards the accused for that purpose, or by a on Fair Trial and Free Press and The Prosecution Function and the Defense person with the authorization of an ap- Function. In view of the unique mission propriate court to sign the petition as and personal requirements of the mili- the representative of the accused. The tary, many of the rules and principles petition shall contain the following in- of the ABA Code or Standards are not formation, or an explanation why such applicable to the military lawyer. Ac- matters are not included: cordingly, the rules are to be used as a (1) The name, service number, and guide only, and a failure to comply current address of the accused; with the specific wording of a rule is (2) The date and location of the trial; not to be construed as a violation of (3) The type of court-martial and the the rule where common sense would in- title or position of the convening au- dicate to a reasonable person that thority; there is a distinction between the civil- (4) The request for the new trial; ian context, which the codes were (5) The sentence or a description drafted to embrace, and the unique thereof as approved or affirmed, with concerns of the military setting, where any later reduction thereof by clem- the codes serve as a general guide. ency or otherwise, [50 FR 23801, June 6, 1985] (6) A brief description of any finding or sentence believed to be unjust; § 719.143 Petition for new trial under (7) A full statement of the newly dis- 10 U.S.C. 873. covered evidence or fraud on the court- (a) Statutory provisions. 10 U.S.C. 873, martial which is relied upon for the provides, ‘‘At any time within 2 years remedy sought; after approval by the convening au- (8) Affidavits pertinent to the mat- thority of a court-martial sentence, ters in subsection (6)i; and the accused may petition the Judge (9) Affidavit of each person whom the Advocate General for a new trial on the accused expects to present as a witness grounds of newly discovered evidence in the event of a new trial. Each affi- or fraud on the court. If the accused’s case is pending before a Court of Mili- davit should set forth briefly the rel- tary Review or before the Court of evant facts within the personal knowl- Military Appeals, that Judge Advocate edge of the witness. General shall refer the petition to the (d) Who may act on petition. If the appropriate court for action. Otherwise accused’s case is pending before a the Judge Advocate General shall act Court of Military Review or the Court upon the petition.’’ of Military Appeals, the Judge Advo- (b) Submission Procedures: At any cate General shall refer the petition to time within 2 years after approval by the appropriate court for action. Other- the convening authority of a court- wise, the Judge Advocate shall act on martial sentence, the accused may pe- the petition. tition the Judge Advocate General for (e) Ground for New Trial. A new trial a new trial on the ground of newly dis- may be granted only on grounds of covered evidence or fraud on the court- newly discovered evidence or fraud on martial. The petition for new trial may the court-martial.

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(1) A new trial shall not be granted section (a) or under section 866 of this on the grounds of newly discovered evi- title (article 66) may be modified or set dence unless the petition shows that; aside, in whole or in part, by the Judge (i) The evidence was discovered after Advocate General on the ground of the trial, newly discovered evidence, fraud on the (ii) The evidence is not such that it court, lack of jurisdiction over the ac- would have been discovered by the peti- cused or the offense, error prejudicial tioner at the time of trial in the exer- to the substantial rights of the ac- cise of due diligence; and cused, or the appropriateness of the (iii) The newly discovered evidence, if sentence. If such a case is considered considered by a court-martial in the upon application of the accused, the light of all other pertinent evidence, application must be filed in the Office would probably produce a substantially of the Judge Advocate General by the more favorable result for the accused. accused on or before the last day of the (2) No fraud on the court-martial two-year period beginning on the date warrants a new trial unless it had a the sentence is approved under section substantial contributing effect on a 860(c) of this title (article 60(c)), unless finding of guilty or the sentence ad- the accused establishes good cause for judged. (f) Action on the petition. (1) The au- failure to file within that time.’’ thority considering the petition may (b) Time Limitations. In order to be cause such additional investigation to considered by the Judge Advocate Gen- be made and such additional informa- eral, an application for relief must be tion to be secured as that authority be- placed in military channels if the ap- lieves appropriate. Upon written re- plicant is on active duty, or be depos- quest, and in his discretion, the au- ited in the mail if the applicant is no thority considering the petition may longer on active duty, on or before the permit oral argument on the matter. last day of the two-year period begin- (2) When a petition is considered by ning on the date the sentence is ap- the Judge Advocate General, any hear- proved by the convening authority. An ing may be before the Judge Advocate application not filed in compliance General or before an officer or officers with these time limits may be consid- designated by the Judge Advocate Gen- ered if the Judge Advocate General de- eral. termines, in his or her sole discretion, (3) If the Judge Advocate General be- that ‘‘good cause’’ for failure to file lieves meritorious grounds for relief within the time limits has been estab- under Article 74, Uniform Code of Mili- lished by the applicant. tary Justice have been established but (c) Submission procedures. Applica- that a new trial is not appropriate, the tions for relief may be submitted to the Judge Advocate General may act under Judge Advocate General by letter. If article 74, Uniform Code of Military the accused is on active duty, the ap- Justice, if authorized, or transmit the plication shall be submitted via the ap- petition and related papers to the Sec- plicant’s commanding officer, and the retary concerned with a recommenda- command that convened the court, and tion. the command that reviewed the case (4) The Judge Advocate may also, in under 10 U.S.C. 864(a) or (b). If the cases which have been finally reviewed original record of trail is held by the but have not been reviewed by a Court command that reviewed the case under of Military Review, act under article 10 U.S.C. 864(a) or (b), it shall be for- 69, Uniform Code of Military Justice. warded as a enclosure to the endorse- [50 FR 23803, June 6, 1985] ment. If the original record of trial has been filed in the National Personnel § 719.144 Application for relief under Records Center, the endorsement will 10 U.S.C. 869, in cases which have include all necessary retrieval data been finally reviewed. (accession number, box number, and (a) Statutory provisions. 10 U.S.C. 869 shelf location) obtained from the re- provides in pertinent part, ‘‘The find- ceipt returned from the National Per- ings or sentence, or both, in a court- sonnel Records Center to the sending martial case not reviewed under sub- activity. This endorsement shall also

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include information and specific com- trial will not be forwarded with the ap- ment on the grounds for relief asserted plication for relief, unless specifically in the application, and an opinion on requested by the Judge Advocate Gen- the merits of the application. If the ap- eral. plicant is no longer on active duty, the (e) Signatures on applications. Unless application may be submitted directly incapable of making application, the to the Judge Advocate General. applicant shall personally sign the ap- (d) Contents of applications. All appli- plication under oath before an official cations for relief shall contain: authorized to administer oaths. If the (1) Full name of the applicant; applicant is incapable of making appli- (2) Social Security number and cation, the application may be signed branch of service, if any; under oath and submitted by the appli- (3) Present grade if on active duty or cant’s spouse, next of kin, executor, retired, or ‘‘civilian’’ or ‘‘deceased’’ as guardian or other person with a proper applicable; interest in the matter. In this regard, (4) Address at time the application is one is considered incapable of making forwarded; application for purposes of this section (5) Date of trial; when unable to sign the application (6) Place of trial; under oath due to physical or mental (7) Command title of the organization incapacity. at which the court-martial was con- [50 FR 23804, June 6, 1985] vened (convening authority); (8) Command title of the officer exer- §§ 719.145–719.150 [Reserved] cising review authority in accordance with 10 U.S.C. 864 over the applicant at § 719.151 Furnishing of advice and the time of trial, if applicable; counsel to accused placed in pre- (9) Type of court-martial which con- trial confinement. victed the applicant, and sentence ad- The Department of the Navy Correc- judged; tions Manual, SECNAVINST 1640.9, re- (10) General grounds for relief which iterates the requirement of Article 10, must be one or more of the following: UCMJ, that, when a person is placed in (i) Newly discovered evidence; pretrial confinement, immediate steps (ii) Fraud on the court; should be taken to inform the confinee (iii) Lack of jurisdiction over the ac- of the specific wrong of which he is accused or the offense; cused and try him or to dismiss the (iv) Error prejudicial to the substan- charges and release him. The Correc- tial rights of the accused; tions Manual requires that this infor- (v) Appropriateness of the sentence; mation normally will be provided with- (11) An elaboration of the specific in 48 hours along with advice as to the prejudice resulting from any error confinee’s right to consult with lawyer cited. (Legal authorities to support the counsel and his right to prepare for applicant’s contentions may be in- trial. Lawyer counsel may be either a cluded, and the format used may take civilian lawyer provided by the the form of a legal brief if the appli- confinee at his own expense or a mili- cant so desires.); tary lawyer provided by the Govern- (12) Any other matter which the ap- ment. If a confinee requests to confer plicant desires to submit; with a military lawyer, such lawyer (13) Relief requested; and should normally be made available for (14) Facts and circumstances to es- consultation within 48 hours after the tablish ‘‘good cause’’ for a failure to file request is made. the application within the time limits [39 FR 18437, May 28, 1974] prescribed in paragraph (b) of 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 con- The applicant’s copy of the record of cerned may, for good cause, substitute

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an administrative form of discharge for (13) Applicant’s full employment a discharge or dismissal executed in ac- record since the punitive discharge or cordance with the sentence of a court- dismissal was executed; martial.’’ (14) The specific type and character (b) Submission procedures. Applica- of administrative discharge requested tions for relief will be submitted to the pursuant to 10 U.S.C. 874(b) (a more fa- Secretary using the following address: vorable administrative discharge than Secretary of the Navy (Judge Advocate that requested will not be approved); General, Code 20), 200 Stovall Street, (15) At least three but not more than Alexandria, VA 22332–2400. Except in six character affidavits, (The character unusual circumstances, applications affidavits must be notarized, must indi- will not normally be considered if re- cate the relationship of the affiant to ceived within five (5) years of the exe- the applicant, and must include the ad- cution of the punitive discharge or dis- dress of the affiant as well as specific missal, or within five (5) years of dis- reasons why the affiant believes the ap- approval of a prior request under 10 plicant to be of good character. The af- U.S.C. 874(b). fidavits should discuss the applicant’s (c) Contents of the application. All ap- character primarily as reflected in the plications shall contain: civilian community subsequent to the (1) Full name of the applicant; punitive discharge or dismissal which (2) Social Security Number, service is the subject of the application); number (if different), and branch of (16) Any matters, other than the service of the applicant; character affidavits, supporting the (3) Present age and date of birth of considerations described in subpara- the applicant; graph (18) below; (4) Present residence of the applicant; (17) Any other relief sought within (5) Date and place of the trial, and the Department of the Navy and out- type of court-martial which resulted in side the Department of the Navy in- the punitive discharge or dismissal; cluding dates of application and final (6) Command title of the convening dispositions; authority of the court-martial which (18) A statement by the applicant, resulted in the punitive discharge or setting forth the specific consider- dismissal; ations which the applicant believes (7) Offense(s) of which the applicant constitute ‘‘good cause,’’ so as to war- was convicted, and sentence finally ap- rant the substitution of an administra- proved from the trial which resulted in tive form of discharge for the punitive the punitive discharge or dismissal; discharge or dismissal previously exe- (8) Date the punitive discharge or dis- cuted. (In this connection, 10 U.S.C. missal was executed; 874(b) does not provide another regular (9) Applicant’s present marital sta- or extraordinary procedure for the re- tus, and number and ages of depend- view of a court-martial. Questions of ents, if any; guilt or innocence, or legal issues at- (10) Applicant’s civilian criminal tendant to the court-martial which re- record (arrest(s) with disposition, and sulted in the punitive discharge or dis- conviction(s)), both prior and subse- missal, are neither relevant nor appro- quent to the court-martial which re- priate for consideration under 10 U.S.C. sulted in the punitive discharge or dis- 874(b). As used in the statute, ‘‘good missal; cause’’ was envisioned by Congress to (11) Applicant’s entire court-martial encompass only Secretarial exercise of record (offense(s) of which convicted clemency and ultimate control of sen- and finally approved sentence(s)), and tence uniformity. Accordingly, in de- nonjudicial punishment record (includ- termining what constitutes ‘‘good ing offense(s) and punishment(s) award- cause’’ under 10 U.S.C. 874(b), the pri- ed); mary Secretarial concern will be with (12) Any military administrative dis- the applicant’s record in the civilian charge proceedings (circumstances and community subsequent to his or her disposition) initiated against the appli- punitive separation. Material sub- cant; mitted by the 10 U.S.C. 874(b) applicant

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should be consistent with the fore- 720.9 Circumstances in which delivery is re- going.) fused. (d) Signature on application. Unless in- 720.10 Members released by civil authorities capable of making application himself on bail or on their own recognizance. or herself, the applicant shall person- 720.11 Interviewing servicemembers or civil- ally sign the application, under oath, ian employees by Federal civilian inves- before a notary or other official au- tigative agencies. thorized to administer oaths. If the ap- 720.12 Request for delivery of members serv- plicant is incapable of executing the ing sentence of court-martial. application, the application may be 720.13 Request for delivery of members serv- signed under oath and submitted by ing sentence of a State court. 720.14–720.19 [Reserved] the applicant’s spouse, next of kin, executor, guardian and other person rec- Subpart B—Service of Process and ognized as a personal representative by Subpoenas Upon Personnel the law of the applicant’s domicile. One is considered incapable of exe- 720.20 Service of process upon personnel. cuting an application for purposes of 720.21 Members or civilian employees sub- this paragraph only when the applicant poenaed as witnesses in State courts. is unable to sign the application under 720.22 Members or civilian employees sub- oath due to physical or mental inca- poenaed as witnesses in Federal courts. pacity. When an application is signed 720.23 Naval prisoners as witnesses or par- by a person other than the applicant, ties in civilian courts. the circumstances rendering the appli- 720.24 Interviews and depositions in connec- cant incapable of making sworn appli- tion with civil litigation in matters per- cation shall be set forth in the applica- taining to official duties. tion, with appropriate documentation. 720.25 Repossession of personal property. (e) Privacy Act Statement. Disclosure 720.26–720.29 [Reserved] of personal information requested by paragraph (c) of this section is vol- Subpart C—Production of Official Records untary; however, failure to accurately 720.30 Production of official records in re- provide all requested information may sponse to court order. result in the application being denied 720.31 Production of official records in the because of inadequate documentation absence of court order. of good cause. 720.32 Certificates of full faith and credit. [47 FR 49645, Nov. 2, 1982, as amended at 50 FR 23804, June 6, 1985] Subpart D—Compliance With Court Orders by Department of the Navy Members, PART 720—DELIVERY OF PER- Employees, and Family Members Out- SONNEL; SERVICE OF PROCESS side the United States AND SUBPOENAS; PRODUCTION 720.40 Purpose. OF OFFICIAL RECORDS 720.41 Definitions. 720.42 Policy. Subpart A—Delivery of Personnel 720.43 Points of contact. 720.44 Responsible officials. Sec. 720.45 Procedures. 720.1 Delivery of persons requested by State 720.46 Overseas screening programs. authorities in criminal cases. 720.47 Report. 720.2 Delivery when persons are within the territorial limits of the requesting State. AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031 and 720.3 Delivery when persons are beyond ter- 5148; 32 CFR 700.206 and 700.1202. ritorial limits of the requesting State. 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 authorities. 720.8 Delivery of persons to foreign authorities.

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§ 720.1 Delivery of persons requested ment. When a command has deter- by State authorities in criminal mined that a person is to be delivered cases. in response to a valid warrant, the fol- Subpart A of this part deals with re- lowing guidance should be considered. quests by State authorities for the sur- If the person to be delivered is a mili- render of members or civilians pursu- tary member, the member may be or- ant to arrest warrants or similar proc- dered to report to a location designated ess, generally in connection with a by the commanding officer and surren- criminal prosecution. Responding to dered to civil authorities under Article such requests by a State for delivery of 14, UCMJ (10 U.S.C. 814). If the person members or civilian employees in- to be delivered is a civilian, the person volves balancing the Federal interest may be invited to report to the des- in preserving sovereign immunity and ignated space for delivery. If the civil- the productivity, peace, good order, ian refuses, the civilian authorities and discipline of the installation may be escorted to a place where the against the right of the State to exer- civilian is located in order that deliv- cise its jurisdiction. Additionally, by ery may be effected. A civilian may be regulation, naval and Marine authori- directed to leave a classified area. All ties are limited in the extent to which should be done with minimum inter- they can directly assist such an act. ference to good order and discipline. Commands should respond to such requests as set out below, generally using § 720.3 Delivery when persons are be- the minimum authority necessary to yond territorial limits of the requesting State. preserve the Federal interests without unduly restricting State jurisdiction. (a) General. When State civil authorities request delivery of any member of § 720.2 Delivery when persons are the Navy or Marine Corps for an al- within the territorial limits of the leged crime or offense punishable under requesting State. the law of the jurisdiction making the When the delivery of any member or request, and such member is not at- civilian is requested by local civil au- tached to a Navy or Marine Corps ac- thorities of a State for an offense pun- tivity within the requesting State or a ishable under the laws of that jurisdic- ship within the territorial waters tion, and such person is located at a thereof, the following action will be Navy or Marine Corps installation taken. Any officer exercising general within the requesting jurisdiction, or court-martial jurisdiction, or officer aboard a ship within the territorial wa- designated by him, or any commanding ters of such jurisdiction, commanding officer, after consultation with a judge officers are authorized to and normally advocate of the Navy or Marine Corps, will deliver such person when a proper is authorized (upon compliance with warrant is issued. In the case of a the provisions of this section and member, delivery will only be effected § 720.6, and subject to the exceptions in upon compliance with § 720.6, subject to § 720.9) to deliver such member to make the exceptions in § 720.9. A judge advo- the member amenable to prosecution. cate of the Navy or Marine Corps The member may be delivered upon should be consulted before delivery is formal or informal waiver of extra- effected. The rule discussed above ap- dition in accordance with § 720.3(b), or plies equally to civilian employees and upon presentation of a fugitive war- civilian contractors and their employ- rant, in which case the procedures of ees when located on a Navy or Marine § 720.3(c) apply. The rule discussed Corps installation, except that compli- above applies equally to civilian em- ance with § 720.6 and consideration of ployees and civilian contractors and § 720.9 are not required (for purposes of their employees when located on a De- this part, ‘‘State’’ includes the District partment of the Navy installation not of Columbia, territories, common- within the requesting State, except wealths, and all possessions or protec- that compliance with § 720.6 and consid- torates of the United States). Com- eration of § 720.9 are not required. mands should normally not become ac- (b) Waiver of extradition. (1) Any tively involved in civilian law enforce- member may waive formal extradition.

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A waiver must be in writing and be (4) No delivery of a member by Navy witnessed. It must include a statement or Marine Corps officers pursuant to a that the member signing it has re- fugitive warrant or waiver of extra- ceived counsel of either a military or dition shall be effected without com- civilian attorney prior to executing the pletion of the agreement required by waiver, and it must further set forth § 720.6 and execution of such agreement the name and address of the attorney either: consulted. (i) By authorities of both the request- (2) In every case where there is any ing State and the State in which the doubt as to the voluntary nature of a member is located, or waiver, such doubt shall be resolved (ii) By authorities of the State in against its use and all persons con- which the member is located if such cerned will be advised to comply with authorities, on behalf of the requesting the procedures set forth in § 720.3(c). State, accept the full responsibility for (3) Executed copies of all waivers will returning the number to a command be mailed to the Judge Advocate Gen- designated by the Department of the eral immediately after their execution. Navy. (4) When a member declines to waive (d) Members stationed outside the extradition, the nearest Naval Legal United States. When the member sought Service Office or Marine Corps staff by State authorities is not located judge advocate shall be informed and within the United States, see § 720.4. shall confer with the civil authorities as appropriate. The member concerned § 720.4 Persons stationed outside the shall not be transferred or ordered out United States. of the State in which he is then located (a) Persons desired by local U.S. au- without the permission of the Sec- thorities. When delivery of any member retary of the Navy (Judge Advocate in the Navy or Marine Corps, or any ci- General), unless a fugitive warrant is vilian employee or dependent, is de- obtained as set forth in § 720.3(c). sired for trial by state authorities and (c) Fugitive warrants. (1) A fugitive the individual whose presence is sought warrant, as used in this chapter, is a is stationed outside the United States, warrant issued by a State court of the provisions of subpart D of this part competent jurisdiction for the arrest of will be followed. In all such cases, the a member. Normally, a State request- nearest judge advocate of the Navy or ing delivery of a member from another Marine Corps shall be consulted before State will issue a fugitive warrant to any action is taken. the State where the member is then lo- (b) Members desired by U.S. Federal au- cated. thorities. When delivery of any member (2) Upon issuance of a fugitive war- of the Navy or Marine Corps is desired rant by the requesting State to the 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- ber voluntarily waives extradition, the cate General and the General Coun- provisions of § 720.3(b) apply. If the sel. 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

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General are authorized to act for the the terms of the agreement. When indi- Secretary of the Navy in performance cating in the agreement the naval or of functions under this chapter. Marine Corps activity to which the (b) Authority of the General Counsel. member delivered is to be returned by The authority of the General Counsel the State, care should be taken to des- of the Navy is prescribed by Navy Reg- ignate the closest appropriate activity ulation (32 CFR 700.203 (a) and (g)) and (to the command to which the member by appropriate departmental directives is attached) that possesses special and instructions (e.g., SECNAVINST court-martial jurisdiction. The Depart- 5430.25D).1 The principal areas of re- ment of the Navy considers this agree- sponsibility of the Office of the General ment substantially complied with Counsel (OGC) are commerical law, in- when: cluding maritime contract matters; ci- (1) The member is furnished transpor- vilian employee law; real property law; tation (under escort in cases of deliv- and Freedom of Information Act and ery in accordance with § 720.12) to a Privacy Act matters as delineated in 32 naval or Marine Corps activity as set CFR part 701. The Office of the General forth in the agreement; Counsel shares responsibility with the (2) The member is provided cash to Judge Advocate General for environ- cover incidental expenses en route mental law cases. thereto; and (c) Points of contact. Commanding of- (3) The Department of the Navy is so ficers are advised to contact their local informed. area judge advocates for assistance in referring matters to the appropriate of- As soon as practicable, a copy of the fice of the Judge Advocate General or delivery agreement shall be forwarded General Counsel. to the Judge Advocate General. (d) Coordination with the Commandant (b) Delivery under Interstate Agreement of the Marine Corps. Marine Corps com- on Detainers Act. Special forms are used mands shall inform the Commandant of when delivering prisoners under the the Marine Corps (CMC) of all matters Interstate Agreement on Detainers referred to the Judge Advocate General Act. The Act is infrequently used and or the Office of General Counsel. Copies most requests are pursuant to Article of all correspondence and documents 14, UCMJ. See § 720.12 for a detailed dis- shall also be provided to CMC. The cussion of the Detainers Act. Staff Judge Advocate to the Com- mandant (CMC (JAR)) shall be advised § 720.7 Delivery of persons to Federal authorities. of all matters referred to the Judge Ad- vocate General. Counsel to the Com- (a) Authority to deliver. When Federal mandant shall be advised of matters re- law enforcement authorities display ferred to the Office of General Counsel. proper credentials and Federal warrants for the arrest of members, civil- § 720.6 Agreement required prior to ian employees, civilian contractors and delivery to State authorities. their employees, or dependents resid- (a) Delivery under Article 14, UCMJ. ing at or located on a Department of When delivery of any member of the the Navy installation, commanding of- Navy or Marine Corps to the civilian ficers are authorized to and should authorities of a State is authorized, allow the arrest of the individual the member’s commanding officer sought. The exceptions in § 720.9 may be shall, before making such delivery, ob- applied to members. A judge advocate tain from the Governor or other duly of the Navy or Marine Corps should be authorized officer of such State a writ- consulted before delivery is effected. ten agreement. The State official com- (b) Agreement not required of Federal pleting the agreement must show that authorities. The agreement described in he is authorized to bind the State to § 720.6 is not a condition to the delivery of members to Federal law enforce- 1 Copies may be obtained if needed, from ment authorities. Regardless of wheth- the Commanding Officer, Naval Publication er the member is convicted or acquit- and Forms Center, 5801 Tabor Avenue, Phila- ted, after final disposition of the case, delphia, PA 19120. the member will be returned to the

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Naval Service (provided that naval au- tical. The initial report shall be con- thorities desire his return) and the nec- firmed by letter setting forth a full essary expenses will be paid from an statement of the facts. A copy of the appropriation under the control of the report shall be forwarded to the re- Department of Justice. gional coordinator.

§ 720.8 Delivery of persons to foreign § 720.10 Members released by civil au- authorities. thorities on bail or on their own re- Except when provided by agreement cognizance. between the United States and the for- A member of the Navy or Marine eign government concerned, com- Corps arrested by Federal or State au- manding officers are not authorized to thorities and released on bail or on his deliver members or civilian employees own recognizance has a duty to return of the Department of the Navy, or their to his parent organization. Accord- dependents residing at or located on a ingly, when a member of the Navy or naval or Marine Corps installation, to Marine Corps is arrested by Federal or foreign authorities. When a request for State authorities and returns to his delivery of these persons is received in ship or station on bail, or on his own a country with which the United States recognizance, the commanding officer, has no agreement or when the com- upon verification of the attesting facts, manding officer is in doubt, advice date of trial, and approximate length of should be sought from the Judge Advo- time that should be covered by the ab- cate General. Detailed information sence, shall grant liberty or leave to concerning the delivery of members, ci- permit appearance for trial, unless this vilian employees, and dependents to would have a serious negative impact foreign authorities when a status of on the command. In the event that lib- forces agreement is in effect is con- erty or leave is not granted, a judge ad- tained in DoD Directive 5525.1 of 9 vocate of the Navy or Marine Corps April 1985 and SECNAVINST 5820.4F.2 should immediately be requested to act as liaison with the court. Nothing in § 720.9 Circumstances in which deliv- this section is to be construed as per- ery is refused. mitting the member arrested and re- (a) Disciplinary proceedings pending. leased to avoid the obligations of bond When disciplinary proceedings involv- or recognizance by reason of the mem- ing military offenses are pending, com- ber’s being in the military service. manding officers should obtain legal guidance from a judge advocate of the § 720.11 Interviewing servicemembers Navy or Marine Corps prior to delivery or civilian employees by Federal ci- of members to Federal or State au- vilian investigative agencies. thorities. Requests by the Federal Bureau of (b) When delivery may be refused. De- Investigation, Naval Investigative livery may be refused only in the fol- Service Command, or other Federal ci- lowing limited circumstances: vilian investigative agencies to inter- (1) Where the accused has been review members or civilian employees of tained for prosecution; or the Department of the Navy suspected (2) When the commanding officer de- or accused of crimes should be prompt- termines that extraordinary cir- ly honored. Any refusal of such a re- cumstances exist which indicate that quest shall be immediately reported to delivery should be refused. the Judge Advocate General, or the Of- (c) Delivery under Detainers Act. When fice of General Counsel, as appropriate, the accused is undergoing sentence of a by telephone, or by message if tele- court-martial, see § 720.12. phone is impractical. When the em- (d) Reports required. When delivery ployee in question is a member of an will be refused, the commanding officer exclusive bargaining unit, a staff judge shall report the circumstances to the advocate or General Counsel attorney Judge Advocate General by telephone, will be consulted to determine whether or by message if telephone is imprac- the employee has a right to have a bargaining unit representative present 2 See footnote 1 of § 720.5(b). during the interview.

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§ 720.12 Request for delivery of mem- of Prisons, Washington, DC 20537, with- bers serving sentence of court-mar- in 30 days after such request is re- tial. ceived, to deny the request. Upon the (a) General. Article 14, UCMJ (10 expiration of such 30-day period or U.S.C. 814), provides authority to honor upon the Director of the Bureau of requests for delivery of members serv- Prisons’ denial of the prisoner’s re- ing a sentence of a court-martial. Al- quest, whichever occurs first, the pris- though seldom utilized, additional au- oner shall be delivered to the request- thority and mandatory obligation to ing authority. deliver such members are provided by (2) Prisoner request. The obligation to the Interstate Agreement on Detainers grant temporary custody under the Act Act (18 U.S.C. app. 9, hereinafter ‘‘the also applies to prisoners’ requests to be Act’’), which applies to the Federal delivered to State authority. Section 2, agency holding the prisoner. The De- Article III(c) of the Act requires the partment of the Navy, as an agency of custodial official to inform the pris- the Federal Government, shall comply oner of the existence of any detainer with the Act. The Act is designed to and of the prisoner’s right to request avoid speedy-trial issues and to aid in disposition. The prisoner’s request is rehabilitation efforts by securing a directed to the custodial official who greater degree of certainty about a must forward it to the appropriate prisoner’s future. The Act provides a prosecuting official and court, with a way for a prisoner to be tried on certificate of prisoner status as pro- charges pending before State courts, ei- vided by Article III of the Act. ther at the request of the State where (c) Article 14, UCMJ. When a request the charges are pending or the prisoner’s request. When refusal of delivery for custody does not invoke the Inter- under Article 14, UCMJ, is intended, state Agreement on Detainers Act, de- comply with § 720.9(d). livery of custody shall be governed by (b) Interstate Agreement on Detainers Article 14, UCMJ, and §§ 720.2 through Act. Upon request under the Act by ei- 720.9. The request shall be honored un- ther State authorities or the prisoner, less, in the exercise of discretion, there the cognizant Navy or Marine Corps is an overriding reason for retaining staff judge advocate, as appropriate, the accused in military custody, e.g., shall communicate with the appro- additional courts-martial are to be priate State officials, and monitor and convened or the delivery would se- ensure that the cognizant commander verely prejudice the prisoner’s appel- acts on all such requests. The Act pro- late rights. Execution of the agreement vides that court-martial sentences con- discussed in § 720.6 is a condition prece- tinue to run during temporary custody. dent to delivery to State authorities. It This section does not cover requests is not required before delivery to Fed- between Federal authorities. The pro- eral authorities. See § 720.7. Unlike de- cedure set forth in § 720.12(c) shall be livery under the Act, delivery of cus- applied in such cases. tody pursuant to Article 14, UCMJ, (1) State request. State officials may interrupts execution of the court-mar- request delivery of prisoners in mili- tial sentence. tary custody under section 2, Article IV, of the Act. Where a detainer has § 720.13 Request for delivery of mem- been lodged against the prisoner, and bers serving sentence of a State court. the prisoner is serving a sentence (regardless of whether an appeal is in (a) General. Ordinarily, members process), delivery is mandatory unless serving protracted sentences resulting the request is disapproved by the Di- from a State criminal conviction will rector of the Bureau of Prisons, Wash- be processed for administrative dis- ington, DC, 20537 as the designee of the charge by reason of misconduct. It Attorney General for this purpose. 28 may, however, be in the best interest of CFR 0.96(n). There has been no further the Naval Service to retain a member delegation to military authority. The charged with a serious offense, subject prisoner should be informed that he to military jurisdiction, to try the may request the Director of the Bureau member by court-martial. The Navy

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may obtain temporary custody of in- (3) Responsibilities. The cognizant carcerated members for prosecution command shall ensure that the respon- with a request to the State under the sibilities of a receiving jurisdiction, de- Interstate Agreement on Detainers lineated in section 2, Article IV of the Act. 18 U.S.C. app. 9. The Department Act, are discharged. In particular, the of the Navy may use the Act in the Act requires that the receiving juris- same manner in which State authori- diction: ties may request members purusant to (i) Commence the prisoner’s trial § 720.12. within 120 days of the prisoner’s ar- (b) Interstate Agreement on Detainers rival, unless the court, for good cause Act. Military authorities may use the shown during an Article 39(a), UCMJ, Act to obtain temporary custody of a session, grants a continuance nec- member incarcerated in a State insti- essary or reasonable to promote the tution, pursuant to conviction by a ends of justice; State court, to resolve criminal (ii) Hold the prisoner in a suitable charges against the member before a jail or other facility regularly used for persons awaiting prosecution, except court-martial. for periods during which the prisoner (1) Detainer. If a command requests attends court or travels to or from any temporary custody under the Act, the place at which his presence may be re- commanding officer of the cognizant quired; naval legal service office or the Marine (iii) Return the prisoner to the send- Corps staff judge advocate, shall file a ing jurisdiction at the earliest prac- detainer with the warden, commis- tical time, but not before the charges sioner of corrections, or other State of- that underlie the request have been re- ficial having custody of the member. solved (prematurely returning the pris- The detainer shall identify the member oner will result in dismissal of the with particularity, enumerate the mili- charges); and tary charges pending, and request the (iv) Pay all costs of transporting, command be notified in advance of any caring for, keeping, and returning the intention to release the member from prisoner to the sending jurisdiction, confinement. unless the command and the State (2) Request for delivery. As soon as agree on some other allocation of the practical after filing the detainer, the costs or responsibilities. commanding officer of the cognizant naval legal service office or the Marine §§ 720.14–720.19 [Reserved] Corps staff judge advocate, shall 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. SOURCE: 57 FR 5232, Feb. 13, 1992, unless The request shall designate the per- 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.

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Where practical, the commanding offi- cept process. Accordingly, the process cer shall require that the process be server from the out-of-State jurisdic- served in his presence, or in the pres- tion need not be brought face-to-face ence of a designated officer. In all with the person named in the process. cases, individuals will be advised to Rather, the process server should re- seek legal counsel, either from a legal port to the designated command loca- assistance attorney or from personal tion while the person named is con- counsel for service in personal matters, tacted, apprised of the situation, and and from Government counsel for serv- advised that he may accept service, but ice in official matters. The com- also may refuse. In the event that the manding officer is not required to act person named refuses service, the proc- as a process server. The action required ess server should be so notified. If serv- depends in part on the status of the in- ice of process is attempted from out-of- dividual requested and which State State by mail and refused, the refusal issued the process. should be noted and the documents re- (1) In-State process. When a process turned to the sender. Questions should server from a State or Federal court be referred to the staff judge advocate, from the jurisdiction where the naval command counsel, or the local naval station is located requests permission legal service office. to serve process aboard an installation, (b) Service of process arising from offi- the command ordinarily should not cial duties. (1) Whenever a member or prevent service of process so long as de- civilian employee of the Department of livery is made in accordance with rea- the Navy is served with process be- sonable command regulations and is cause of his official position, the Judge consistent with good order and dis- Advocate General or the Associate cipline. Withholding service may be General Counsel (Litigation), as appro- justified only in the rare case when the priate, shall be notified by telephone, individual sought is located in an area or by message if telephone is imprac- under exclusive Federal jurisdiction tical. Notification shall be confirmed not subject to any reservation by the by a letter report by the nearest appro- State of the right to serve process. priate command. The letter report Questions on the extent of jurisdiction shall include the detailed facts which should be referred to the staff judge ad- give rise to the action. vocate, command counsel, or local (2) Any member or civilian employee naval legal service office. If service is served with Federal or State court civil permitted, an appropriate location or criminal process or pleadings (in- should be designated (for example, the cluding traffic tickets) arising from ac- command legal office) where the proc- tions performed in the course of offi- ess server and the member or employee cial duties shall immediately deliver can meet privately in order that proc- all such process and pleadings to the ess may be served away from the work- commanding officer. The commanding place. A member may be directed to re- officer shall ascertain the pertinent port to the designated location. A civil- facts and notify the Judge Advocate ian may be invited to the designated General or Associate General Counsel location. If the civilian does not co- (Litigation), as appropriate, by tele- operate, the process server may be es- phone or by message if telephone is im- corted to the location of the civilian in practical, of the service and imme- order that process may be served. A ci- diately forward the pleadings and proc- vilian may be required to leave a clas- ess to the relevant office. The member sified area in order that the process or civilian employee will be advised of server may have access to the civilian. the right to remove civil or criminal If unusual circumstances require that proceedings from State to Federal the command not permit service, see court under 28 U.S.C. 1442, 1442a, rights § 720.20(e). under the Federal Employees Liability (2) Out-of-State process. In those cases Reform and Tort Compensation Act (28 where the process is to be served by au- U.S.C. 2679b), if applicable, and the thority of a jurisdiction other than right of a Federal employee to request that where the command is located, representation by Department of Jus- the person named is not required to ac- tice attorneys in Federal (civil) or

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State (civil or criminal) proceedings national agreement or treaty, regard- and in congressional proceedings in less of whether the suit involves acts which that person is sued in an indi- performed in the course of official du- vidual capacity, as delineated in 28 ties. The Judge Advocate General or CFR 50.15. Requests for representation the Associate General Counsel (Litiga- shall be addressed to the Judge Advo- tion), as appropriate, will arrange cate General or Associate General through the Department of Justice for Counsel (Litigation), as appropriate, defense of the suit against the United and shall be endorsed by the com- States or an official acting within the manding officer, who shall provide all scope of official duties, or make other necessary data relating to the ques- arrangements, and will issue instructions of whether the person was acting tions. within the course of official duty or (2) Usually, the persons described in scope of employment at the time of the § 720.20(c)(1) are not required to accept incident out of which the suit arose. service of process outside the geo- (3) If the service of process involves a graphic limits of the jurisdiction of the potential claim against the Govern- court from which the process issued. In ment, see 32 CFR 750.12(a), 750.12(b), such cases, acceptance of the service is and 750.24. The right to remove to Fed- not compulsory, but service may be eral Court under 28 U.S.C. 1442 and voluntarily accepted in accordance 1442a must be considered where the with § 720.20(b). In exceptional cases outcome of the State court action may when the United States has agreed that influence a claim or potential claim service of process will be accepted by against the United States. Questions such persons when located outside the should be directed to the Judge Advo- geographic limits of the jurisdiction of cate General or the Associate General the court from which the process Counsel (Litigation). issued, the provisions of the agreement (c) Service of process of foreign courts. and of § 720.20(a) will govern. (1) Usually, the amenability of mem- (3) Under the laws of some countries bers, civilian employees, and their de- (such as Sweden), service of process is pendents stationed in a foreign coun- effected by the document, in original try, to the service of process from or certified copy, being handed to the courts of the host country will have person for whom the service is in- been settled by an agreement between tended. Service is considered to have the United States and the foreign coun- taken place even if the person refuses try concerned (for example, in the to accept the legal documents. There- countries of the signatory parties, fore, if a commanding officer or other amenability to service of civil process officer in the military service person- is governed by paragraphs 5(g) and 9 of ally hands, or attempts to hand, that Article VIII of the NATO Status of person the document, service is consid- Forces Agreement, TIAS 2846). When ered to have been effected, permitting service of process on a person described the court to proceed to judgment. Upon above is attempted within the com- receipt of foreign process with a re- mand in a country in which the United quest that it be served upon a person States has no agreement on this sub- described in § 720.20(c)(1), a com- ject, advice should be sought from the manding officer shall notify the person Judge Advocate General or the Asso- of the fact that a particular foreign ciate General Counsel (Litigation), as court is attempting to serve process appropriate. When service of process is and also inform that person that the upon the United States Government or process may be ignored or received. If one of its agencies or instrumentalities the person to be served chooses to ig- as the named defendant, the doctrine of nore the service, the commanding offi- sovereign immunity may allow the cer will return the document to the service of process to be returned to the embassy or consulate of the foreign court through diplomatic channels. country with the notation that the Service of process directed to an offi- commanding officer had the document, cial of the United States, on the other that the person chose to ignore it, and hand, must always be processed in ac- that no physical offer of service had cordance with the applicable inter- been made. The commanding officer

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will advise the Judge Advocate General § 720.21 Members or civilian employ- or the Associate General Counsel (Liti- ees subpoenaed as witnesses in gation), as appropriate, of all requests State courts. for service of process from a foreign Where members or civilian employ- court and the details thereof. ees are subpoenaed to appear as wit- (d) Leave or liberty to be granted per- nesses in State courts, and are served sons served with process. When members as described in §§ 720.20, 720.20(d) ap- or civilian employees are either served plies. If these persons are requested to with process, or voluntarily accept appear as witnesses in State courts service of process, in cases where the when the interests of the Federal Gov- United States is not a party to the liti- ernment are involved (e.g., Medical gation, the commanding officer nor- Care Recovery Act cases), follow the mally will grant leave or liberty to the procedures described in § 720.22. If State person served to permit compliance authorities are attempting to obtain with the process, unless to do so would the presence of a member or a civilian have an adverse impact on naval oper- employee as a witness in a civil or ations. When a member or civilian em- criminal case, and such person is unavailable because of an overseas as- ployee is a witness for a nongovern- signment, the command should imme- mental party because of performance diately contact the Judge Advocate of official duties, the commanding offi- General, or the Associate General cer may issue the person concerned Counsel (Litigation), as appropriate. permissive orders authorizing attendance at the trail at no expense to the § 720.22 Members or civilian employ- Government. The provisions of 32 CFR ees subpoenaed as witnesses in Fed- part 725 must also be considered in eral courts. such cases. Members or civilian em- (a) Witnesses on behalf of Federal Gov- ployees may accept allowances and ernment. When members or civilian em- mileage tendered; however, any fees ployees of the Department of the Navy tendered for testimony must be paid to are required to appear as witnesses in a the Department of the Navy unless the Federal Court to testify on behalf of member or employee is on authorized the Federal Government in cases in- leave while attending the judicial pro- volving Department of the Navy activi- ceeding. When it would be in the best ties, the Chief of Naval Personnel or interests of the United States Govern- the Commandant of the Marine Corps, ment (for example, in State criminal as appropriate, will issue temporary trails), travel funds may be used to additional duty orders to that person. provide members and civilian employ- The charges for such orders will be ees as witnesses as provided in the borne by the activity to which the re- Joint Federal Travel Regulations. Re- quired witness is attached. Payment to sponsibility for the payment of the witnesses will be as provided by the member’s mileage and allowances will Joint Federal Travel Regulations and be determined pursuant to the Joint U.S. Navy travel instructions. If the re- Federal Travel Regulations, Volume 1, quired witness is to appear in a case in paragraph M6300, subsections 1–3.3 which the activities of the Department (e) Report where service not allowed. of the Navy are not involved, the De- partment of the Navy will be reim- Where service of process is not per- bursed in accordance with the proce- mitted, or where the member or civil- dures outlined in the Navy Comptroller ian employee is not given leave, lib- Manual, section 046268. erty, or orders to attend a judicial pro- (b) Witnesses on behalf of nongovern- ceeding, a report of such refusal and mental parties—(1) Criminal actions. the reasons therefor shall be made by When members or civilian employees telephone, or message if telephone is are served with a subpoena to appear as impractical, to the Judge Advocate a witness for a defendant in a criminal General or the Associate General Coun- action and the fees and mileage re- sel (Litigation), as appropriate. quired by rule 17(d) of the Federal Rules of Criminal Procedure are ten- 3 See footnote 1 of § 720.5(b). dered, the commanding officer may

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issue the person subpoenaed permissive will be required, and should specify the orders authorizing attendance at the mode of transport by which it intends trial at no expense to the Government, to return the prisoner. Upon receipt of unless the person’s absence would have such a request, authority by the Judge an adverse impact on naval operations. Advocate General will be given, in a In such a case, a full report of the cir- proper case, for the production of the cumstances will be made to the Judge requested naval prisoner in court with- Advocate General or, in the case of ci- out resort to a writ of habeas corpus ad vilian employees, to the Associate Gen- testificandum (a writ which requires eral Counsel (Litigation). In those the production of a prisoner to testify cases where fees and mileage are not before a court of competent jurisdic- tendered as required by rule 17(d) of the tion). Federal Rules of Criminal Procedure, (b) Civil actions. The Department of but the person subpoenaed still desires the Navy will not authorize the attend- to attend, the commanding officer also ance of a naval prisoner in a Federal or may issue permissive orders at no cost State court, either as a party or as a to the Government. Such persons, how- witness, in private litigation pending ever, should be advised that an agree- before such a court. The deposition of a ment as to reimbursement for any ex- naval prisoner may be taken in such a penses incident to travel, lodging, and case, subject to reasonable conditions subsistence should be effected with the or limitations imposed by the com- party desiring their attendance and mand concerned. that no reimnbursement should be expected from the Government. § 720.24 Interviews and depositions in (2) Civil actions. When members or ci- connection with civil litigation in vilian employees are served with a sub- matters pertaining to official du- poena to appear as a witness on the be- ties. half of a nongovernmental party in a Requests to interview, depose, or call civil action brought in a Federal court, as witnesses, current or former mem- the provisions of § 720.20 apply. bers or civilian employees of the De- partment of the Navy, regarding infor- § 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 written request for such person’s at- § 720.25 Repossession of personal tendance to the Judge Advocate Gen- property. 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

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to relinquish the property voluntarily. section. In determining whether or not Repossession must be carried out in a a record contained in a ‘‘system of manner prescribed by the commanding records’’ will be furnished in response officer. In the case of property owned to a written request for that record, by civilian employees of the Depart- consideration shall be given to the pro- ment of the Navy or civilian contrac- visions of the Secretary of the Navy In- tors or their employees or dependents, struction 5720.42 series. If the record is the commanding officer should direct in a ‘‘system of records,’’ it may be pro- that the disputed property be removed duced upon written request of one or from the installation until the com- more parties in interest or their re- manding officer is satisfied that the spective attorneys in the absence of a dispute is resolved. court order only if the individuals to §§ 720.26–720.29 [Reserved] whom the record pertains give written consent to the production or if the pro- Subpart C—Production of Official duction is otherwise authorized under the Privacy Act and the Secretary of Records the Navy Instruction 5211.5 series. § 720.30 Production of official records Whenever compliance with a court in response to court order. order for production of Department of (a) General. Where unclassified naval the Navy records is deemed inappro- records are desired by or on behalf of priate for any reason, such as when litigants, the parties will be informed they contain privileged or classified in- that the records desired, or certified formation, the records and subpoena copies thereof, may be obtained by for- may be forwarded to the Secretary of warding to the Secretary of the Navy, the Navy (Judge Advocate General) for Navy Department, Washington, DC, or appropriate action, and the parties to other custodian of the records, a court the suit so notified. Any release of order calling for the particular records classified information for civil court desired or copies thereof. Compliance proceedings (whether civil or criminal with such court order will be effected in nature) must also be coordinated by transmitting certified copies of the within the office of the Chief of Naval records to the clerk of the court out of Operations (OP–009D) in accordance which the process issues. See the provi- with the Chief of Naval Operations In- sions in the Secretary of the Navy In- struction 5510.1 series. struction 5211.5 series which set forth (b) Records in the custody of National the additional requirement that rea- Personnel Records Center. Court orders, sonable efforts be made to notify all in- subpoenas duces tecum, and other legal dividuals to whom the record pertains documents demanding information of (1) the disclosure, and (2) the nature from, or the production of, service or of the information provided, when the medical records in the custody of the court order has become a matter of National Personnel Records Center in- public record and the record is con- volving former (deceased or discharged) tained in a system of records as defined Navy and Marine Corps personnel shall in the Secretary of the Navy Instruc- be served upon the General Services tion 5211.5 series. If an original record Administration, 9700 Page Boulevard; is produced by a naval custodian, it will not be removed from the custody St. Louis, MO 63132, rather than the of the person producing it, but copies Department of the Navy. In the fol- may be placed in evidence. Upon writ- lowing situations, the request shall be ten request of one or more parties in forwarded to the Secretary of the Navy interest or their respective attorneys, (Judge Advocate General). records which would be produced in re- (1) When the United States (Depart- sponse to a court order as set forth ment of the Navy) is one of the liti- above may be furnished without court gants. order when such records are not in a (2) When the case involves a person ‘system of records’ as defined by the or persons who are or have been senior Privacy Act (5 U.S.C. 552a) except as officers or officials within the Depart- noted in paragraphs (b) and (c) of this ment of the Navy; and

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(3) In other cases considered to be of that custody of the records may be special significance to the Judge Advo- maintained. cate General or the Secretary of the Navy. [38 FR 6021, Mar. 6, 1973, as amended at 48 FR 4466, Feb. 1, 1983] (c) Exceptions. Where not in conflict with the foregoing restrictions relative § 720.31 Production of official records to personal information, the release of in the absence of court order. which would result in a clearly unwarranted invasion of personal privacy, (a) General. Release of official records the production in Federal, State, terri- outside the Department of the Navy in torial, or local courts of evidentiary the absence of a court order is gov- material from investigations con- erned by the Privacy Act (5 U.S.C. 552a) ducted pursuant to this Manual, and and the Freedom of Information Act (5 the service, employment, pay or med- U.S.C. 552). The following sources per- ical records (including medical records tain: SECNAVINST 5211.5 series (Pri- of dependents) of persons in the naval vacy) and SECNAVINST 5720.42 series service is authorized upon receipt of a (Freedom of Information). court order, without procuring specific (b) Release of JAG Manual Investiga- authority from the Secretary of the tions, Court-Martial Records, Articles 69 Navy. When the request for production and 73 Petitions, and Article 138 Com- involves material related to claims in plaints of Wrongs. Except as provided in favor of the Government, notification this section, only the Assistant Judge should be made to the affirmative Advocates General (Civil Law) and claims office at the naval legal service (Military Law) shall make determina- office having territorial responsibility tions concerning the release of the in the area. Where travel is involved, it records covered herein if less than a re- must be without expense to the Gov- lease of the complete requested record ernment. will result. In all other instances the (d) Medical and other records of civilian Deputy Assistant Judge Advocates employees. Production of medical cer- General, who have cognizance of the tificates or other medical reports con- record(s) in issue, may release such cerning civilian employees is con- records. Local record holders are re- trolled by the provisions of Executive minded that the authority to release Order 10561, 19 FR 5963, as implemented records does not necessarily include de- by Federal Personnel Manual, chapter nial authority. 294, and chapter 339.1–4 (reprinted in (1) JAG Manual Investigations (includ- MANMED article 23–255(6)). Records of ing enclosures). Any request for release civilian employees other than medical outside the Department of the Navy records may be produced upon receipt shall be forwarded to the Assistant of a court order without procuring spe- Judge Advocate General (Military Law) cific authority from the Secretary of for determination, except that Privacy the Navy, provided there is not in- Act requests for release shall be for- volved any classified or For-Official- warded to the Assistant Judge Advo- Use-Only information, such as loyalty cate General (Civil Law) for determina- or security records. Records relating to tion. compensation benefits administered by (2) Court-martial records and Articles 69 the Bureau of Employees’ Compensa- and 73 petitions. These are matters of tion may not be disclosed except upon public record and may be released by the written approval of that Bureau (20 any local holder. Court-martial records CFR 1.21). In case of doubt, the matter should be released only following prop- should be handled in accordance with er authentication. the provisions of subsection a above. (3) Article 138 Complaints of Wrongs. Where information is furnished here- Forward as in paragraph (b)(1) of this under in response to a court order, it is section. advisable that certified copies rather (c) Affirmative claims files. Affirmative than originals be furnished and that, claims files (including Medical Care where original records are to be pro- Recovery Act files), except to the ex- duced, the assistance of the U.S. Attor- tent that such files contain copies of ney or U.S. Marshal be requested so reports of investigations prepared

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under the Manual of the Judge Advo- § 720.40 Purpose. cate General, or classified or privileged This instruction: information, may be released by local (a) Implements 32 CFR part 146. holders to insurance companies to sup- (b) Establishes policy and procedures port claims; to civilian attorneys rep- for requesting the return to the United resenting the injured party’s and the States of, or other action affecting, De- Government’s interests; and to other partment of the Navy (DON) personnel components of the Department of De- and employees serving outside the fense, without the prior approval of the United States, and family members ac- Judge Advocate General, provided that companying them, in compliance with the amount of the claim is within the court orders. monetary settlement authority of the releaser. When the request for produc- § 720.41 Definitions. tion involves material related to Court. Any judicial body in the claims in favor of the Government, no- United States with jurisdiction to im- tification should be made to the af- pose criminal sanctions on a Depart- firmative claims office at the naval ment of the Navy member, employee, legal service office having territorial or family member. responsibility for the area. Employee. A civilian employed by the (d) Accounting for disclosures of records Department of the Navy or a compo- from systems of records. When records lo- nent service, including an individual cated in a ‘‘system of records’’ are re- paid from non-appropriated funds, who leased, the official responsible for re- is a citizen or national of the United leasing the records shall consult States. SECNAVINST 5211.5 series regarding Family member. A spouse, natural or the requirement that accountings of adopted child, or other lawful depend- the disclosures be maintained. Appen- ent of a Department of the Navy em- dix A–3–a of the Manual of the Judge ployee or member accompanying the 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.

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United States. The 50 states, the Dis- the custody of a parent or other person trict of Columbia, Puerto Rico, Guam, awarded custody by a court order will the Northern Mariana Islands, Amer- normally require processing for adverse ican Samoa, and the Virgin Islands. action, up to and including removal from federal service. Failure to comply § 720.42 Policy. with other court orders may require (a) It is Department of the Navy pol- adverse action, depending on the cir- icy to cooperate, as prescribed in this cumstances of the individual case. instruction, with courts and federal, (2) Family members will be strongly state and local officials in enforcing encouraged to comply with court or- court orders. The Department of the ders. Family members who fail to com- Navy will cooperate with requests ply with court orders involving felonies when such action is consistent with or contempt involving unlawful or con- mission requirements (including oper- temptuous removal of a child from the ational readiness), the provisions of applicable international agreements, and jurisdiction of the court or the custody ongoing Department of Defense (DoD) of a parent or other person awarded investigations and courts-martial. custody by a court order will normally (b) Every reasonable effort will be have their command sponsorship re- made to resolve the matter without the moved. Failure to comply with other respondent returning to the United court orders may also result in re- States, or other action being taken moval of command sponsorship, de- against the respondent under this in- pending on the circumstances of the instruction. dividual case. (c) Requests to return members for (g) To facilitate prompt resolution of felonies or for contempt involving un- requests for return of members, mini- lawful or contemptuous removal of a mize the burden on operating units, child from the jurisdiction of a court or and to provide consistency during ini- the custody of a parent or other person tial implementation of this new pro- awarded custody by a court order will gram, a limited number of responsible normally be granted, but only if the officials, designated in § 720.44, will re- member cannot resolve the issue with spond to requesting officials. the court without return to the United States. When the member’s return is § 720.43 Points of contact. inconsistent with mission requirements, applicable international agree- (a) Authorities issuing requests for ments, or ongoing DoD investigations return or for other action under this or courts-martial, DoD approval of de- instruction may contact the following nial will be requested. activities: (d) For all other requests involving (1) Chief of Naval Personnel (Pers–14), members, return will be based on the Washington, DC 20370–5000 (For Navy circumstances of the individual case as members and their family members). provided in this instruction. (2) Commandant, U.S. Marine Corps (e) Members will normally be re- (Code JAR), Washington, DC 20380–0001 turned on a temporary additional duty (For Marine Corps members and their (TAD) basis unless there are compel- family members). ling reasons the return should be a per- (3) Director, Office of Civilian Per- manent change of duty station (PCS). sonnel Management (Code OOL), 800 N. (f) The involuntary return of employ- Quincy Street, Arlington, VA 22203–1998 ees or family members in response to a (For civilian personnel, including non- request for return is not authorized. appropriated fund employees and their However, the following action will be family members). taken: (1) Employees will be strongly urged (b) Upon receipt of a request for ac- to comply with court orders. Failure to tion under this instruction, the Office comply with court orders involving of Civilian Personnel Management will felonies or contempt involving unlaw- forward the request to the appropriate ful or contemptuous removal of a child responsible official for action in ac- from the jurisdiction of the court or cordance with § 720.44.

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§ 720.44 Responsible officials. and civilian family members to with- The following officials are designated drawal of command sponsorship. responsible officials for acting on re- (b) For all other requests when the quests to return or to take other action matter cannot be resolved with the affecting members, employees or fam- court without returning the respondent ily members to the United States. to the United States, the responsible (a) The Chief of Naval Personnel official shall take the action described (CHNAVPERS) for requests involving in this instruction when deemed appro- Navy members and their family mem- priate with the facts and cir- bers who are not employees. The cumstances of each particular case, fol- CHNAVPERS may delegate this au- lowing consultation with legal staff. thority within his headquarters, not (c) When a member’s return is incon- below the 0–6 level for routine matters sistent with mission requirements, the and not lower than the flag officer provisions of applicable international level for decisions to deny the request agreements, or ongoing DoD investiga- for return. tions and courts-martial, the Depart- (b) The Commandant of the Marine ment of the Navy will ask DoD to ap- Corps (CMC) for requests involving Ma- prove denial of the request for the mili- rine Corps members and their family tary members’s return. To initiate this members who are not employees. The action, there must be an affirmative CMC may delegate this authority with- showing of articulable harm to the in his headquarters, not below the 0–6 unit’s mission or violation of an inter- level for routine matters and no lower national agreement. that the general officer level for deci- (d) When a responsible official has de- sions to deny the request for return. termined a request for return is appar- (c) The local commanding officer or ently based on an order issued by a officer in charge for requests involving court of competent jurisdiction, the re- employees and their family members sponsible official shall complete action who are not active duty military mem- on the request for return within 30 days bers. of receipt of the request for return by (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 com- an opportunity to detail the specific ef- ply may subject employees to adverse fect on command mission and oper- action, to include removal from the ational readiness anticipated from the Federal service, and subject military loss of the member or Department of

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the Navy employee, and to present (4) Monitor, and update as necessary, facts relating to any international information provided to the respon- agreement, or ongoing DoD investiga- sible official. tion or courts-martial. (h) The responsible official shall: (f) A commanding officer or officer in (1) Determine whether the request is charge who receives a request for the based on an order issued by a court of return of, or other action affecting, a apparent competent jurisdiction and if member, family member, or employee so, complete action on the request no not of his/her command will forward later than 30 days after its receipt by the request to the appropriate com- the responsible official. If a conflicts of manding officer or officer in charge, law issue is presented between com- copy to the responsible official, and ad- peting state interests, or between a vise both of them by message that a re- state and a foreign host-nation, or be- quest for return or other action has tween two different foreign nations, been forwarded to them. the matter shall be referred to the (g) A commanding officer or officer ASN(M&RA) on the first issue and to in charge who receives a request for the Judge Advocate General (Code 10) the return of, or other action affecting, on the second and third issues. a member, family member, or employee of his/her command will: (2) Encourage the respondent to attempt to resolve the matter to the sat- (1) Notify the respondent of the right isfaction of the court or other request- to provide evidence to show legal efforts to resist the request, or to show ing authority without return of or legitimate cause for noncompliance for other action affecting the member, em- inclusion in the submission to the re- ployee, or family member. sponsible official. (3) When a delay to complete action (2) For members and their family under this section is warranted, re- members who are not employees, for- quest the delay from ASN(M&RA) with ward the request immediately to the full supporting justification. appropriate responsible official, to- (4) Examine all information the re- gether with: spondent desires to provide to show (i) Any information the individual legal efforts to resist the request, or desires to provide to show legal efforts otherwise to show legitimate cause for to resist the request, or otherwise to noncompliance. show legitimate cause for noncompli- (5) Requests for exception from the ance. requirements of this instruction shall (ii) Facts detailing the specific im- be submitted, with supporting jus- pacts on command missions and readi- tification, to the ASN(M&RA) for sub- ness anticipated from loss of the mem- mission to the ASD(FM&P). ber. (6) If a member will be ordered to re- (iii) Facts relating to any inter- turn to the United States, determine if national agreements or ongoing DoD the member will be ordered TAD or investigations or courts-martial in- PCS and advise the member’s com- volving the respondent. manding officer of the determination. (iv) Information regarding conditions (7) If a member will be ordered to re- expected to interfere with a member’s turn to an appropriate port of entry to return to the command after comple- comply with a request, ensure: tion of proceedings. If, in the opinion of (i) The requesting officer has given the commanding officer, there are compelling reasons for the member to be official notification to the responsible returned to the United States PCS, official that the requesting official or provide full justification to support other appropriate party will initiate that recommendation to the cognizant action with the receiving jurisdiction officer. to secure the member’s delivery/extra- (3) If a delay in processing is war- dition, as appropriate, per chapter 6 of ranted under § 720.42 or § 720.45(e), make the Manual of the Judge Advocate Gen- a recommendation with supporting jus- eral, and provide for all costs incident tification to the responsible official. thereto, including any escort if desired.

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(ii) If applicable, the necessary ac- § 720.46 Overseas screening programs. counting data are provided to the com- The Chief of Naval Operations (CNO) manding officer of the member or or- and the CMC shall incorporate proce- ders are issued. dures requiring members and employ- (iii) The member has arranged satis- ees to certify they have legal custody factory foster care for any lawful of all minor dependents accompanying minor dependents who will be left un- them outside the United States into accompanied overseas upon the mem- service overseas screening programs. ber’s return to the United States. (8) Notify the requesting official at § 720.47 Report. least 10 days before the member’s re- The report requirement in this in- turn to the selected port of entry. struction is exempt from reports con- (9) In the case of an employee or of a trol by SECNAVINST 5214.2B. family member, the commanding officer or officer in charge of the activity to which the family member’s sponsor PARTS 721–722 [RESERVED] is attached, or by which the employee is employed, will carry out the fol- PART 723—BOARD FOR lowing steps: CORRECTION OF NAVAL RECORDS (i) An employee shall be strongly encouraged to comply with the court Sec. order or other request for return. Fail- 723.1 General provisions. ure to comply may be the basis for ad- 723.2 Establishment, function and jurisdic- verse action to include removal from tion of the Board. 723.3 Application for correction. Federal service. Adverse action should 723.4 Appearance before the board; notice; only be taken after coordination with counsel; witnesses; access to records. the cognizant civilian personnel office 723.5 Hearing. and legal counsel and in compliance 723.6 Action by the Board. with Civilian Personnel Instruction 723.7 Action by the Secretary. 752. 723.8 Staff action. (ii) If a family member of either a 723.9 Reconsideration. 723.10 Settlement of claims. member or an employee is the subject 723.11 Miscellaneous provisions. of a request for return, the family 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.

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The Board consists of civilians of the shall be submitted with the applica- executive part of the Department of tion. the Navy in such number, not less than (b) Time limit for filing application. Ap- three, as may be appointed by the Sec- plications for correction of a record retary and who shall serve at the pleas- must be filed within 3 years after dis- ure of the Secretary. Three members covery of the alleged error or injustice. present shall constitute a quorum of Failure to file within the time pre- the Board. The Secretary of the Navy scribed may be excused by the Board if will designate one member as Chair. In it finds it would be in the interest of the absence or incapacity of the Chair, justice to do so. If the application is an Acting Chair chosen by the Execu- filed more than 3 years after discovery tive Director shall act as Chair for all of the error or injustice, the applica- purposes. tion must set forth the reason why the (b) Function. The Board is not an in- Board should find it in the interest of vestigative body. Its function is to con- justice to excuse the failure to file the sider applications properly before it for application within the time prescribed. the purpose of determining the exist- (c) Acceptance of applications. An ap- ence of error or injustice in the naval plication will be accepted for consider- records of current and former members ation unless: of the Navy and Marine Corps, to make (1) The Board lacks jurisdiction. recommendations to the Secretary or (2) The Board lacks authority to to take corrective action on the Sec- grant effective relief. retary’s behalf when authorized. (3) The applicant has failed to comply (c) Jurisdiction. The Board shall have with the filing requirements of para- jurisdiction to review and determine graphs (a)(l), (a)(2), or (a)(3) of this sec- all matters properly brought before it, tion. consistent with existing law. (4) The applicant has failed to exhaust all available administrative rem- § 723.3 Application for correction. edies. (a) General requirements. (1) The appli- (5) The applicant has failed to file an cation for correction must be sub- application within 3 years after dis- mitted on DD 149 (Application for Cor- covery of the alleged error or injustice rection of Military Record) or exact and has not provided a reason or rea- facsimile thereof, and should be ad- sons why the Board should find it in dressed to: Board for Correction of the interest of justice to excuse the Naval Records, Department of the failure to file the application within Navy, 2 Navy Annex, Washington, DC the prescribed 3-year period. 20370–5100. Forms and other explana- (d) Other proceedings not stayed. Fil- tory matter may be obtained from the ing an application with the Board shall Board upon request. not operate as a stay of any other pro- (2) Except as provided in paragraph ceedings being taken with respect to (a)(3) of this section, the application the person involved. shall be signed by the person request- (e) Consideration of application. (1) ing corrective action with respect to Each application accepted for consider- his/her record and will either be sworn ation and all pertinent evidence of to or will contain a provision to the ef- record will be reviewed by a three fect that the statements submitted in member panel sitting in executive ses- the application are made with full sion, to determine whether to author- knowledge of the penalty provided by ize a hearing, recommend that the law for making a false statement or records be corrected without a hearing, claim. (18 U.S.C. 287 and 1001) or to deny the application without a (3) When the record in question is hearing. This determination will be that of a person who is incapable of made by majority vote. making application, or whose where- (2) The Board may deny an applica- abouts is unknown, or when such per- tion in executive session if it deter- son is deceased, the application may be mines that the evidence of record fails made by a spouse, parent, heir, or legal to demonstrate the existence of prob- representative. Proof of proper interest able material error or injustice. The

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Board relies on a presumption of regu- statement; rather, unclassified or non- larity to support the official actions of privileged summaries of such material public officers and, in the absence of will be so used and written expla- substantial evidence to the contrary, nations for the substitution will be will presume that they have properly provided to the applicant and counsel. discharged their official duties. Appli- cants have the burden of overcoming § 723.4 Appearance before the board; this presumption but the Board will notice; counsel; witnesses; access to not deny an application solely because records. the record was made by or at the direc- (a) General. In each case in which the tion of the President or the Secretary Board determines a hearing is war- in connection with proceedings other ranted, the applicant will be entitled to than proceedings of a board for the cor- appear before the Board either in per- rection of military or naval records. son or by counsel of his/her selection or Denial of an application on the grounds in person with counsel. Additional proof insufficient evidence to demonstrate visions apply to cases processed under the existence of probable material the Military Whistleblower Protection error or injustice is final subject to the Act (10 U.S.C. 1034). provisions for reconsideration con- (b) Notice. (1) In each case in which a tained in § 723.9. hearing is authorized, the Board’s staff (3) When an original application or a will transmit to the applicant a writ- request for further consideration of a ten notice stating the time and place of previously denied application is denied hearing. The notice will be mailed to without a hearing, the Board’s deter- the applicant, at least 30 days prior to mination shall be made in writing and the date of hearing, except that an ear- include a brief statement of the lier date may be set where the appli- grounds for denial. cant waives his/her right to such notice (4) The brief statement of the in writing. grounds for denial shall include the (2) Upon receipt of the notice of hear- reasons for the determination that re- ing, the applicant will notify the Board lief should not be granted, including in writing at least 15 days prior to the the applicant’s claims of constitu- date set for hearing as to whether he/ tional, statutory and/or regulatory vio- she will be present at the hearing and lations that were rejected, together will indicate to the Board the name of with all the essential facts upon which counsel, if represented by counsel, and the denial is based, including, if appli- the names of such witnesses as he/she cable, factors required by regulation to intends to call. Cases in which the ap- be considered for determination of the plicant notifies the Board that he/she character of and reason for discharge. does not desire to be present at the Further the Board shall make a deter- hearing will be considered in accord- mination as to the applicability of the ance with § 723.5(b)(2). provisions of the Military Whistle- (c) Counsel. As used in this part, the blower Protection Act (10 U.S.C. 1034) if term ‘‘counsel’’ will be construed to in- it is invoked by the applicant or rea- clude members in good standing of the sonably raised by the evidence. At- federal bar or the bar of any state, ac- tached to the statement shall be any credited representatives of veterans’ advisory opinion considered by the organizations recognized by the Sec- Board which is not fully set out in the retary of Veterans Affairs under 38 statement. The applicant will also be 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

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Board. It will be the responsibility of Board, the applicant or representative the applicant to notify his/her wit- fails to appear at the time and place nesses and to arrange for their appear- set for the hearing or fails to provide ance at the time and place set for hear- the notice required by § 723.4(b)(2), the ing. Appearance of witnesses will be at Board may consider the case in accord- no cost to the government. ance with the provisions of paragraph (e) Access to records. (1) It is the re- (b)(2) of this section, or make such sponsibility of the applicant to procure other disposition of the case as is ap- such evidence not contained in the offi- propriate under the circumstances. cial records of the Department of the (4) All testimony before the Board Navy as he/she desires to present in shall be given under oath or affirma- support of his/her case. tion. The proceedings of the Board and (2) Classified or privileged informa- the testimony given before it will be tion may be released to applicants only recorded verbatim. by proper authorities in accordance (c) Continuance. The Board may con- with applicable regulations. tinue a hearing on its own motion. A (3) Nothing in this part authorizes request for continuance by or in behalf the furnishing of copies of official of the applicant may be granted by the records by the Board. Requests for cop- Board if a continuance appears nec- ies of these records should be sub- essary to insure a full and fair hearing. mitted in accordance with applicable regulations governing the release of in- § 723.6 Action by the Board. formation. The BCNR can provide a re- (a) Deliberations, findings, conclusions, questor with information regarding and recommendations. (1) Only members procedures for requesting copies of of the Board and its staff shall be these records from the appropriate represent during the deliberations of the tention agency. Board. (2) Whenever, during the course of its § 723.5 Hearing. review of an application, it appears to (a) Convening of board. The Board will the Board’s satisfaction that the facts convene, recess and adjourn at the call have not been fully and fairly disclosed of the Chair or Acting Chair. by the records or by the testimony and (b) Conduct of hearing. (1) The hearing other evidence before it, the Board may shall be conducted by the Chair or Act- require the applicant or military au- ing Chair, and shall be subject to his/ thorities to provide such further infor- her rulings so as to ensure a full and mation as it may consider essential to fair hearing. The Board shall not be a complete and impartial determina- limited by legal rules of evidence but tion of the facts and issues. shall maintain reasonable bounds of (3) Following a hearing, or where the competency, relevancy, and materi- Board determines to recommend that ality. the record be corrected without a hear- (2) If the applicant, after being duly ing, the Board will make written find- notified, indicates to the Board that ings, conclusions and recommenda- he/she does not desire to be present or tions. If denial of relief is rec- to be represented by counsel at the ommended following a hearing, such hearing, the Board will consider the written findings and conclusions will case on the basis of all the material be- include a statement of the grounds for fore it, including, but not limited to, denial as described in § 723.3(e)(4). The the application for correction filed by name and final vote of each Board the applicant, any documentary evi- member will be recorded. A majority dence filed in support of such applica- vote of the members present on any tion, any brief submitted by or in be- matter before the Board will constitute half of the applicant, and all available the action of the Board and shall be so pertinent records. recorded. (3) If the applicant, after being duly (4) Where the Board deems it nec- notified, indicates to the Board that essary to submit comments or rec- he/she will be present or be represented ommendations to the Secretary as to by counsel at the hearing, and without matters arising from but not directly good cause and timely notice to the related to the issues of any case, such

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comments and recommendations shall (2) The following categories of peti- be the subject of separate communications for relief are reserved for decision tion. Additionally, in Military Whistle- by the Secretary of the Navy: blower Protection Act cases, any rec- (i) Petitions involving records pre- ommendation by the Board to the Sec- viously reviewed or acted upon by the retary that disciplinary or administra- Secretary wherein the operative facts tive action be taken against any Navy remained substantially the same; official based on the Board’s deter- (ii) Petitions by former commis- mination that the official took reprisal sioned officers or midshipmen to action against the applicant will not be change the character of, and/or the rea- made part of the Board’s record of pro- son for, their discharge; or, ceedings or furnished the applicant but will be transmitted to the Secretary as (iii) Such other petitions as, in the a separate communication. determination of Office of the Sec- (b) Minority report. In case of a dis- retary or the Executive Director, war- agreement between members of the rant Secretarial review. Board a minority report will be sub- (3) The Executive Director after en- mitted, either as to the findings, con- suring compliance with this section, clusions or recommendation, including will announce final decisions on appli- the reasons therefor. cations decided under this section. (c) Record of proceedings. Following a hearing, or where the Board determines § 723.7 Action by the Secretary. to recommend that the record be cor- (a) General. The record of pro- rected without a hearing, a record of ceedings, except in cases finalized by proceedings will be prepared. Such the Board under the authority dele- record shall indicate whether or not a gated in § 723.6(e), and those denied by quorum was present, and the name and the Board without a hearing, will be vote of each member present. The forwarded to the Secretary who will di- record shall include the application for rect such action as he or she deter- relief, a verbatim transcript of any testimony, affidavits, papers and docu- mines to be appropriate, which may in- ments considered by the Board, briefs clude the return of the record to the and written arguments, advisory opin- Board for further consideration. Those ions, if any, minority reports, if any, cases returned for further consider- the findings, conclusions and rec- ation shall be accompanied by a brief ommendations of the Board, where ap- statement setting out the reasons for propriate, and all other papers, docu- such action along with any specific in- ments, and reports necessary to reflect structions. If the Secretary’s decision a true and complete history of the pro- is to deny relief, such decision shall be ceedings. in writing and, unless he or she ex- (d) Withdrawal. The Board may per- pressly adopts in whole or in part the mit an applicant to withdraw his/her findings, conclusions and recommenda- application without prejudice at any tions of the Board, or a minority re- time before its record of proceedings is port, shall include a brief statement of forwarded to the Secretary. the grounds for denial. See § 723.3(e)(4). (e) Delegation of authority to correct (b) Military Whistleblower Protection certain naval records. (1) With respect to Act. The Secretary will ensure that de- all petitions for relief properly before cisions in cases involving the Military it, the Board is authorized to take final Whistleblower Protection Act are corrective action on behalf of the Sec- issued 180 days after receipt of the case retary, unless: and will, unless the full relief re- (i) Comments by proper naval author- quested is granted, inform applicants ity are inconsistent with the Board’s recommendation; of their right to request review of the (ii) The Board’s recommendation is decision by the Secretary of Defense. not unanimous; or Applicants will also be informed: (iii) It is in the category of petitions (1) Of the name and address of the of- reserved for decision by the Secretary ficial to whom the request for review of the Navy. must be submitted.

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(2) That the request for review must the Board shall communicate the deci- be submitted within 90 days after re- sion to the applicant. The applicant is ceipt of the decision by the Secretary entitled, upon request, to receive a of the Navy. copy of the Board’s findings, conclu- (3) That the request for review must sions and recommendations. be in writing and include: (b) Transmittal of final decisions deny- (i) The applicant’s name, address and ing relief. If the final decision of the telephone number; Secretary or the Board is to deny re- (ii) A copy of the application to the lief, the following materials will be Board and the final decision of the Sec- made available to the applicant: retary of the Navy; and (iii) A statement of the specific rea- (1) A statement of the findings, con- sons the applicant is not satisfied with clusions, and recommendations made the decision of the Secretary of the by the Board and the reasons therefor; Navy. (2) Any advisory opinions considered (4) That the request must be based on by the Board; the Board record; request for review (3) Any minority reports; and based on factual allegations or evi- (4) Any material prepared by the Sec- dence not previously presented to the retary as required in § 723.7. Moreover, Board will not be considered under this applicant shall also be informed that paragraph but may be the basis for re- the name and final vote of each Board consideration by the Board under member will be furnished or made § 723.9. available upon request and that he/she may submit new and material evidence § 723.8 Staff action. or other matter for further consider- (a) Transmittal of final decisions grant- ation. ing relief. (1) If the final decision of the Secretary is to grant the applicant’s § 723.9 Reconsideration. request for relief the record of pro- After final adjudication, further con- ceedings shall be returned to the Board for disposition. The Board shall trans- sideration will be granted only upon mit the finalized record of proceedings presentation by the applicant of new to proper naval authority for appro- and material evidence or other matter priate action. Similarly final decisions not previously considered by the of the Board granting the applicant’s Board. New evidence is defined as evi- request for relief under the authority dence not previously considered by the delegated in § 723.6(e), shall also be for- Board and not reasonably available to warded to the proper naval authority the applicant at the time of the pre- for appropriate action. vious application. Evidence is material (2) The Board shall transmit a copy if it is likely to have a substantial ef- of the record of proceedings to the fect on the outcome. All requests for proper naval authority for filing in the further consideration will be initially applicant’s service record except where screened by the Executive Director of the effect of such action would be to the Board to determine whether new nullify the relief granted. In such cases and material evidence or other matter no reference to the Board’s decision (including, but not limited to, any fac- shall be made in the service record or tual allegations or arguments why the files of the applicant and all copies of relief should be granted) has been sub- the record of proceedings and any re- mitted by the applicant. If such evi- lated papers shall be forwarded to the dence or other matter has been sub- Board and retained in a file maintained mitted, the request shall be forwarded for this purpose. to the Board for a decision. If no such (3) The addressees of such decisions shall report compliance therewith to evidence or other matter has been sub- the Executive Director. mitted, the applicant will be informed (4) Upon receipt of the record of pro- that his/her request was not considered ceedings after final action by the Sec- by the Board because it did not contain retary, or by the Board acting under new and material evidence or other the authority contained in § 723.6(e), matter.

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§ 723.10 Settlement of claims. which active duty pay and allowances (a) Authority. (1) The Department of are payable will be deducted from the the Navy is authorized under 10 U.S.C. settlement. To the extent authorized 1552 to pay claims for amounts due to by law and regulation, amounts found applicants as a result of corrections to due may be reduced by the amount of their naval records. any existing indebtedness to the Gov- (2) The Department of the Navy is ernment arising from military service. not authorized to pay any claim here- (2) Prior to or at the time of pay- tofore compensated by Congress ment, the person or persons to whom through enactment of a private law, or payments are to be made shall be ad- to pay any amount as compensation for vised by the disbursing activity of the any benefit to which the claimant nature and amount of the various bene- might subsequently become entitled fits represented by the total settlement under the laws and regulations admin- and shall be advised further that ac- istered by the Secretary of Veterans ceptance of such settlement shall con- Affairs. stitute a complete release by the (b) Application for settlement. (1) Set- claimants involved of any claim tlement and payment of claims shall be against the United States on account made only upon a claim of the person of the correction of the record. whose record has been corrected or (d) Report of settlement. In every case legal representative, heirs at law, or where payment is made, the amount of beneficiaries. Such claim for settle- such payment and the names of the ment and payment may be filed as a payee or payees shall be reported to separate part of the application for cor- the Executive Director. rection of the record. (2) When the person whose record has § 723.11 Miscellaneous provisions. been corrected is deceased, and where no demand is presented by a duly ap- (a) Expenses. No expenses of any na- pointed legal representative of the es- ture whatsoever voluntarily incurred tate, payments otherwise due shall be by the applicant, counsel, witnesses, or made to the surviving spouse, heir or by any other person in the applicant’s beneficiaries, in the order prescribed behalf, will be paid by the Government. by the law applicable to that kind of (b) Indexing of decisions. (1) Docu- payment, or if there is no such law cov- ments sent to each applicant and coun- ering order of payment, in the order set sel in accordance with § 723.3(e)(5) and forth in 10 U.S.C. 2771; or as otherwise § 723.8(a)(4), together with the record of prescribed by the law applicable to the votes of Board members and all that kind of payment. other statements of findings, conclu- (3) Upon request, the applicant or ap- sions and recommendations made on plicants shall be required to furnish final determination of an application requisite information to determine by the Board or the Secretary will be their status as proper parties to the indexed and promptly made available claim for purposes of payment under for public inspection and copying at applicable provisions of law. the Armed Forces Discharge Review/ (c) Settlement. (1) Settlement of Correction Boards Reading Room lo- claims shall be upon the basis of the cated on the Concourse of the Pen- decision and recommendation of the tagon Building in Room 2E123, Wash- Board, as approved by the Secretary or ington, DC. his designee. Computation of the (2) All documents made available for amounts due shall be made by the ap- public inspection and copying shall be propriate disbursing activity. In no indexed in a usable and concise form so case will the amount found due exceed as to enable the public to identify the amount which would otherwise those cases similar in issue together have been paid or have become due with the circumstances under and/or under applicable laws had no error or reasons for which the Board and/or Sec- injustice occurred. Earnings received retary have granted or denied relief. from civilian employment, self employ- The index shall be published quarterly ment or any income protection plan for and shall be available for public inspec- such employment during any period for tion and distribution by sale at the

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Reading Room located on the Con- 724.203 Broad objectives of naval discharge course of the Pentagon Building in review. Room 2E123, Washington, DC. Inquiries 724.204 Eligibility for naval discharge review. concerning the index or the Reading 724.205 Authority for review of naval dis- Room may be addressed to the Chief, charges; jurisdictional limitations. Micromation Branch/Armed Forces 724.206 Jurisdictional determinations. Discharge Review/Correction Boards 724.207 Disposition of applications for dis- Reading Room, Crystal Mall 4, 1941 Jef- charge review. ferson Davis Highway, Arlington, Vir- 724.208 Implementation of NDRB decisions. ginia 22202. 724.209 Evidence supporting applications. 724.210 Review action in instances of un- (3) To the extent necessary to pre- available records. vent a clearly unwarranted invasion of 724.211 Regularity of government affairs. personal privacy, identifying details of 724.212 Availability of records. the applicant and other persons will be 724.213 Attendance of witnesses. deleted from the documents made 724.214 Applicant’s expenses. available for public inspection and 724.215 Military representation. copying. Names, addresses, social secu- 724.216 Failure to appear at a hearing or respond to a scheduling notice. rity numbers and military service 724.217 Limitation—Reconsiderations. numbers must be deleted. Deletions of 724.218 Limitation—Continuance and Post- other information which is privileged ponements. or classified may be made only if a 724.219 Withdrawal of application. written statement of the basis for such 724.220 Review on motion of the NDRB. deletion is made available for public 724.221 Scheduling of discharge reviews. inspection. 724.222 Personal appearance discharge hearing sites. 724.223 NDRB support and augmentation by PART 724—NAVAL DISCHARGE regular and reserve activities. REVIEW BOARD 724.224 Court-martial specifications, presumption concerning.

Subpart A—Definitions Subpart C—Director, Naval Council of Per- Sec. sonnel Boards and President Naval 724.101 Naval Service. Discharge Review Board; Responsibil- 724.102 Naval Discharge Review Board. ities in Support of the Naval Discharge 724.103 NDRB panel. Review Board 724.104 NDRB Traveling Panel. 724.105 President of the NDRB. 724.301 Mission. 724.106 Presiding Officer, NDRB Panel. 724.302 Functions: Director, Naval Council 724.107 Discharge. of Personnel Boards. 724.108 Administrative discharge. 724.303 Functions: President, Naval Dis- 724.109 Types of administrative discharges. charge Review Board. 724.304 Responsibility for Department of the 724.110 Reason/basis for administrative dis- Navy suppport of the Naval Discharge charge. Review Board. 724.111 Punitive discharge. 724.305 Functions of the CMC and CNO. 724.112 Clemency discharge. 724.306 Functions of the Commander, Naval 724.113 Application. Medical Command. 724.114 Applicant. 724.307 Functions of the Commander, Naval 724.115 Next of kin. Reserve Force. 724.116 Council/representative. 724.117 Discharge review. Subpart D—Principal Elements of the Navy 724.118 Documentary discharge review. Department Discharge Review System 724.119 Personal appearance discharge review. 724.401 Applicants. 724.120 National Capital Region (NCR). 724.402 Naval Discharge Review Board. 724.121 Decisional document. 724.403 President, Naval Discharge Review 724.122 Recorder, NDRB Panel. Board. 724.123 Complainant. 724.404 Director, Naval Council of Personnel Boards. Subpart B—Authority/Policy for 724.405 Commandant of the Marine Corps or Departmental Discharge Review the Commander, Naval Military Per- sonnel Command. 724.201 Authority. 724.406 Commander, Naval Medical Com- 724.202 Statutory/Directive Authority. mand.

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724.407 Commander, Naval Reserve Force. APPENDIX B TO PART 724—OATH OR AFFIRMA- 724.408 Secretary of the Navy. TION TO BE ADMINISTERED TO DISCHARGE REVIEW BOARD MEMBERS Subpart E—Procedural Rights of the Appli- APPENDIX C TO PART 724—SAMPLES OF FOR- cant and Administrative Actions Pre- MATS EMPLOYED BY THE NAVAL DIS- liminary to Discharge Review CHARGE REVIEW BOARD APPENDIX D TO PART 724—VETERANS’ BENE- 724.501 Procedural rights of the applicant. FITS 724.502 Actions to be taken by the applicant AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 1553. preliminary to discharge review. 724.503 NDRB response to application for SOURCE: 50 FR 10943, Mar. 19, 1985, unless discharge review. otherwise noted. 724.504 NDRB actions preliminary to dis- EDITORIAL NOTE: Nomenclature changes to charge review. part 724 appear at 65 FR 62616, Oct. 19, 2000.

Subpart F—Naval Discharge Review Board Subpart A—Definitions Mission and Functions § 724.101 Naval Service. 724.601 General. 724.602 Mission. The Naval Service is comprised of the 724.603 Functions. uniformed members of the United States Navy and the United States Ma- Subpart G—Organization of the Naval rine Corps, including active and inac- Discharge Review Board tive reserve components.

724.701 Composition. § 724.102 Naval Discharge Review 724.702 Executive management. Board. 724.703 Legal counsel. An administrative board, referred to Subpart H—Procedures of the Naval as the ‘‘NDRB’’ established by the Sec- Discharge Review Board retary of the Navy pursuant to title 10 U.S.C., section 1553, for the review of 724.801 Matters to be considered in dis- discharges of former members of the charge review. Naval Service. 724.802 Applicant’s responsibilities. 724.803 The decisional document. § 724.103 NDRB panel. 724.804 Decision process. An element of the NDRB, consisting 724.805 Response to items submitted as issues by the applicant. of five members, authorized to review 724.806 Decisional issues. discharges. In plenary review session, 724.807 Record of NDRB proceedings. an NDRB panel acts with the authority 724.808 Issuance of decisions following dis- delegated by the Secretary of the Navy charge review. to the Naval Discharge Review Board. 724.809 Final disposition of the record of proceedings. § 724.104 NDRB Traveling Panel. 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. 724.811 Privacy Act information. ances discharge review hearings at lo- 724.812 Responsibilities of the Reading cations outside of the National Capital Room. Region (NCR). 724.813 The recommendation of the NDRB president. § 724.105 President of the NDRB. 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 724.901 Objective of discharge review. function within the Naval Service. (See 724.902 Propriety of the discharge. subpart E). 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

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Officer. He/she shall convene, recess sufficiently meritorious to warrant an and adjourn the NDRB Panel as appro- Honorable Discharge. priate. (3) Under Other Than Honorable Condi- tions (formerly termed Undesirable Dis- § 724.107 Discharge. charge). A separation from the naval In the context of the review function service under conditions other than prescribed by 10 U.S.C. 1553, a discharge honorable. It is issued to terminate the or dismissal is a complete separation service of a member of the naval serv- from the Naval Service, other than one ice for one or more of the reasons/basis pursuant to the sentence of a general listed in the Naval Military Personnel court-martial. By reason of usage, the Manual, Marine Corps Separation and term ‘‘discharge’’ is predominantly ap- Retirement Manual and their prede- plicable to the separation of enlisted cessor publications. personnel for any reason, and the term (4) Entry Level Separation. (i) A sepa- ‘‘dismissal’’ to the separation of officers ration initiated while a member is in as a result of Secretarial or general entry level status will be described as court-martial action. In the context of an Entry Level Separation except in the mission of the NDRB, the term the following circumstances: ‘‘discharge’’ used here shall, for purpose (a) When characterization under of ease of expression, include any com- Other Than Honorable Conditions is plete separation from the naval service authorized and is warranted by the cir- other than that pursuant to the sen- cumstances of the case; or tence of general court-martial. The (b) When characterization of service term ‘‘discharge’’ also includes the type as Honorable is clearly warranted by of discharge and the reason/basis for the presence of unusual circumstances that discharge, e.g., Other Than Honor- including personal conduct and per- able/Misconduct (Civil Conviction). formance of naval duty and is approved on a case-by-case basis by the Sec- § 724.108 Administrative discharge. retary of the Navy. This characteriza- A discharge upon expiration of enlist- tion will be considered when the mem- ment or required period of service, or ber is separated by reason of Selected prior thereto, in a manner prescribed Changes in Service Obligation, Conven- by the Commandant of the Marine ience of the Government, or Disability. Corps or the Commander, Naval Per- (ii) With respect to administrative sonnel Command, but specifically ex- matters outside the administrative cluding separation by sentence of a separation system that require a char- general court-martial. acterization of service as Honorable or General, an Entry Level Separation [65 FR 62616, Oct. 19, 2000] shall be treated as the required charac- § 724.109 Types of administrative dis- terization. An Entry Level Separation charges. for a member of a Reserve component separated from the Delayed Entry Pro- (a) A determination reflecting a gram is under honorable conditions. member’s military behavior and performance of duty during a specific pe- (b) [Reserved] riod of service. The three characteriza- [50 FR 10943, Mar. 19, 1985, as amended at 51 tions are: FR 44909, Dec. 15, 1986; 65 FR 62616, Oct. 19, (1) Honorable. A separation from the 2000] naval service with honor. The issuance of an Honorable Discharge is contin- § 724.110 Reason/basis for administra- gent upon proper military behavior and tive discharge. performance of duty. The terms ‘‘reason for discharge’’ and (2) Under Honorable Conditions (also ‘‘basis for discharge’’ have the same termed General Discharge). A separa- meaning. The first is a Navy term and tion from the naval service under hon- the second is a Marine Corps term. orable conditions. The issuance of a These terms identify why an adminis- discharge under honorable conditions trative discharge was issued, e.g., Con- is contingent upon military behavior venience of the Government, Mis- and performance of duty which is not conduct. Reasons/basis for discharge

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are found in the Naval Military Per- § 724.113 Application. sonnel Manual and Marine Corps Sepa- In the context of this Manual, a writ- ration and Retirement Manual as well ten application to the NDRB for the re- as predecessor publications. view of a discharge submitted by a former member of the naval service or, § 724.111 Punitive discharge. where a former member is deceased or A discharge awarded by sentence of a incompetent, by spouse, next of kin or court-martial. There are two types of legal representative. Department of punitive discharges: Defense Form 293 must be used for the (a) Bad conduct. A separation from application. the naval service under conditions other than honorable. It may be ef- § 724.114 Applicant. fected only as a result of the approved A former member of the naval serv- sentence of a general or special court- ice who has been discharged adminis- martial. tratively in accordance with the direc- (b) Dishonorable. A separation from tives of the naval service or by sen- the naval service under dishonorable tence of a special court-martial under conditions. It may be effected only as a title 10 U.S.C. 801 et seq. (Uniform Code result of the approved sentence of a of Military Justice) and, in accordance general court-martial. with statutory and regulatory provisions: § 724.112 Clemency discharge. (a) Whose case is considered by the (a) The clemency discharge was cre- NDRB at the request of the former ated by the President on September 16, member, of, if authorized under 1974, in his Proclamation 4313, ‘‘An- § 724.113, the surviving spouse, next-of- nouncing a Program for the Return of kin or legal representative, or Vietnam Era Draft Evaders and Mili- (b) Whose case is considered on the tary Deserters.’’ Upon issuance to indi- NDRB’s own motion. viduals who have an undesirable discharge or a punitive discharge, a clem- § 724.115 Next of kin. ency discharge serves as a written tes- The person or persons in the highest timonial to the fact that the individual category of priority as determined by has satisfied the requirements of the the following list (categories appear in President’s program, and has fully descending order of priority): Sur- earned his/her return to the main- viving legal spouse; children (whether stream of American society in accord- by current or prior marriage) age 18 ance with that program. years or older in descending precedence (b) The clemency discharge is a neu- by age; father or mother, unless by tral discharge, neither honorable nor court order custody has been vested in less than honorable. It does not effect a another (adoptive parent takes prece- change in the characterization of the dence over natural parent); siblings individual’s military service as havng (whole or half) age 18 years or older in been under other than honorable condi- descending precedence by age; grand- tion, nor does it serves to change, seal, father or grandmother; any other rel- erase or in any way modify the individ- ative (precedence to be determined in ual’s past military record. Therefore, if accordance with the civil law of de- the underlying discharge was issued as scent of the deceased former member’s a result of a general court-martial, the state of domicile at time of death). issuance of a Clemency Discharge does not subject the underlying character- § 724.116 Council/representative. ization to review under 10 U.S.C. 1553. An individual or agency designated Clemency discharges are issued by the by the applicant who agrees to rep- Commander, Naval Military Personnel resent the applicant in a case before Command or the Commandant of the the NDRB. It includes, but is not lim- Marine Corps when an individual has ited to: a lawyer who is a member of met the requirements of the Presi- the bar of a Federal Court or of the dential Proclamation. highest court of a State; an accredited

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representative designated by an organi- issues presented together with any evi- zation recognized by the Administrator dence offered in support of the applica- of Veterans Affairs; a representative tion, the NDRB’s response to the issue from a State agency concerned with or issues, the votes of the members of veterans affairs; or a representative the panel, and any recommendations or from private organizations or local responses by the President of the Government agencies. NDRB or the Secretarial Reviewing Authority (SRA). The decisional docu- § 724.117 Discharge review. ment is promulgated by the ‘‘en bloc A nonadversary administrative re- letter’’. appraisal at the level of the Navy De- partment of discharges from the naval § 724.122 Recorder, NDRB Panel. service. The object of the reappraisal is A panel member responsible for brief- to determine whether the discharge ing an applicant’s case from the docu- should be changed, and if so, the nature mentary evidence available prior to a of the change. This reappraisal in- discharge review, presenting the brief cludes the type and reason/basis for to the panel considering the applica- separation, the procedures followed in tion, performing other designated func- accomplishing separation, and the tions during personal appearance dis- characterization of service. This term charge hearings, and drafting the includes determinations made under decisional document subsequent to the the provisions of 38 U.S.C. 3103(2). hearing.

§ 724.118 Documentary discharge re- § 724.123 Complainant. view. A former member of the Armed A formal session of the NDRB con- Forces (or the former member’s coun- vened for the purpose of reviewing, on sel) who submits a complaint under 32 the basis of documentary data, an ap- CFR Part 70 with respect to the plicant’s discharge. The Documentary decisional document issued in the data shall include the application to- former member’s own case; or a former gether with all information accom- member of the Armed Forces (or the panying that application, available former member’s counsel) who submits service and medical records, and any a complaint under reference (b) stating other information considered relevant that correction of the decisional docu- by the NDRB. ment will assist the former member in preparing for an administrative or judi- § 724.119 Personal appearance dis- cial proceeding in which the former charge review. member’s own discharge will be at A formal session of the NDRB con- issue. vened for the purpose of reviewing an applicant’s discharge on the basis of a Subpart B—Authority/Policy for personal appearance, as well as docu- Departmental Discharge Review mentary data. The personal appearance may be by the applicant or by a rep- § 724.201 Authority. resentative of the applicant, or both. The Naval Discharge Review Board, established pursuant to 10 U.S.C. 1553, § 724.120 National Capital Region is a component of the Naval Council of (NCR). Personnel Boards. By SECNAVINST The District of Columbia; Prince 5730.7 series, the Assistant Secretary of Georges and Montgomery Counties in the Navy (Manpower and Reserve Af- Maryland; Arlington, Fairfax, fairs) is authorized and directed to act Loudoun, and Prince William Counties for the Secretary of the Navy within in Virginia; and all cities and towns in- his/her assigned area of responsibility cluded within the outer boundaries of and exercises oversight over the Naval the foregoing counties. Council of Personnel Boards. SECNAVINST 5420.135 series of July 15, § 724.121 Decisional document. 1983 states the organization, mission, The written recordation of the appli- duties and responsibilities of the Naval cant’s summary of service, the issue or Council of Personnel Boards to include

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the Naval Discharge Review Board. The a review under this section may appear Chief of Naval Operations established before the board in person or by coun- the Office of Naval Disability Evalua- sel or an accredited representative or tion and Navy Council of Personnel an organization recognized by the Ad- Boards on 1 October 1976 (OPNAVNOTE ministrator of Veterans’ Affairs under 5450 Ser 09B26/535376 of 9 Sep 1976 (Canc title 38 U.S.C. 3401 et seq.’’. frp: Apr 77)). The Chief of Naval Oper- (b) Pub. L. 95–126. See appendix D. ations approved the change in name of (c) 32 CFR part 70. This provides for the Office of Naval Disability Evalua- uniform standards and procedures for tion and Navy Council of Personnel review of discharges from the military Boards to Naval Council of Personnel services of the Department of Defense. Boards on 1 February 1977 (OPNAVNOTE 5450 Ser 09B26/32648 of 24 The provisions of 32 CFR part 70 are in- Jan 1977 (Canc frp: Jul 77)) with the fol- corporated in this Manual. lowing mission statement: (d) The Secretary of Defense memoranda dated August 13, 1971 and April 28, To administer and supervise assigned 1972 (NOTAL). These directed a review boards and councils. for recharacterization of (1) adminis- [50 FR 10943, Mar. 19, 1985, as amended at 65 trative discharges under other than FR 62616, Oct. 19, 2000] honorable conditions issued solely on the basis of personal use of drugs or § 724.202 Statutory/Directive Author- ity. possession of drugs for the purpose of such use, and (2) punitive discharges The NDRB, in its conduct of dis- and dismissals issued solely for convic- charge review, shall be guided by the tion of personal use of drugs and pos- applicable statutes, regulations, and session for the purpose of such use for manuals and directives of the Depart- ment of the Navy, and other written those discharges executed as a result of public expressions of policy by com- a case completed or in process on or be- petent authority: fore July 7, 1971. (See appendix B). (a) 10 U.S.C. 1553, Review of discharge (e) 32 CFR part 41. This prescribes pol- or dismissal: icy, standards and procedures which (1) ‘‘The Secretary concerned shall, govern the administrative separation after consulting the Administrator of of enlisted persons from the Armed Veterans’ Affairs, establish a board of Forces. review, consisting of five members, to review the discharge or dismissal § 724.203 Broad objectives of naval dis- (other than a discharge or dismissal by charge review. sentence of a general court-martial) of Naval discharge review shall have as any former member of an armed force its broad objectives: 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 Secretary concerned, change a dis- Any former member of the Naval charge or dismissal, or issue a new dis- Service, eligible for review under ref- charge, to reflect its findings. erence (a) or surviving spouse, next of (3) A review by the board established kin or legal representative, shall upon under this section shall be based on the submission of an application be af- records of the armed forces concerned forded a review of the member’s dis- and such other evidence as may be pre- charge from the Naval Service as pro- sented to the board. A witness may vided in §§ 724.205 and 724.206. Discharge present evidence to the board in person review may also be initiated on the or by affidavit. A person who requests motion of the NDRB (See § 724.220).

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§ 724.205 Authority for review of naval (c) The application may be accepted discharges; jurisdictional limita- and the discharge reviewed by the tions. NDRB, resulting in, (a) The Board shall have no authority (1) Change to the discharge, or to: (2) No change. (1) Review a discharge or dismissal § 724.208 Implementation of NDRB de- resulting from a general court-martial; cisions. (2) Alter the judgment of a court- The Commandant of the Marine martial, except the discharge or dis- Corps and the Chief of Naval Oper- missal awarded may be changed for ations are responsible for imple- purposes of clemency; menting Naval Discharge Review Board (3) Revoke any discharge or dis- decisions within their respective serv- missal; ices. The Commandant of the Marine (4) Reinstate a person in the naval Corps shall be notified of decisions in service; each discharge review case and shall (5) Recall a former member to active implement the decisions within the duty; Marine Corps. The Commander, Naval (6) Change a reenlistment code; Military Personnel Command, acting (7) Make recommendations for reen- for the Chief of Naval Operations and listment to permit entry in the naval Chief of Naval Personnel, shall be noti- service or any other branch of the fied of decisions in each discharge re- Armed Forces; view case and shall implement the de- (8) Cancel or void enlistment con- cisions within the Navy. tracts; or (9) Change the reason for discharge § 724.209 Evidence supporting applications. from or to a physical disability (b) Review of naval discharges shall In the absence of law, evidence or not be undertaken in instances where policy to the contrary, naval dis- the elapsed time between the date of charges shall be considered just, equi- discharge and the date of receipt of ap- table and proper as issued. When hear- plication for review exceeds fifteen ings are scheduled, applicants must be years. prepared to present their case at the scheduled time. In the absence of any § 724.206 Jurisdictional determina- other evidence, naval discharge review tions. shall be undertaken by examination of available service and health records of The determination as to whether the the applicant. Normally, the responsi- NDRB has jurisdiction in any case bility for presenting evidence from out- shall be predicated on the policy stated side available service and health in § 724.205. Decisions shall be made by records shall rest with the applicant. 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.

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(2) The applicant shall be notified of tary records before applying for dis- the situation and requested to provide charge review rather than after sub- such information and documents as mitting DD Form 293 to avoid delays in may be desired in support of the re- processing of applications and sched- quest for discharge review. A period of uling of reviews. Applicants and their not less than 60 days shall be allowed counsel may also examine their mili- for such documents to be submitted. At tary personnel records at the site of the expiration of this time period, the their scheduled review before the hear- review may be conducted with informa- ing. The NDRB shall notify applicants tion available to the NDRB. of the dates the records are available (3) The presumption of regularity in for examination in their standard the conduct of government affairs may scheduling information. be applicable in instances of unavail- (b) If the NDRB is not authorized to able records depending on the cir- provide copies of documents that are cumstances of the case. (See § 724.211) under the cognizance of another gov- (b) [Reserved] ernment department, office, or activ- [50 FR 10943, Mar. 19, 1985, as amended at 65 ity, applications for such information FR 62616, Oct. 19, 2000] must be made by the applicant to the cognizant authority. The NDRB shall § 724.211 Regularity of government af- advise the applicant of the mailing ad- fairs. dress of the government department, There is a presumption of regularity office, or activity to which the request in the conduct of governmental affairs. should be submitted. This presumption can be applied in any (c) [Reserved] review unless there is substantial cred- (d) The NDRB may take steps to ob- ible evidence to rebut the presumption. tain additional evidence that is rel- § 724.212 Availability of records. evant to the discharge under consideration beyond that found in the official (a) Before applying for discharge re- military records or submitted by the view, potential applicants or their designated representatives may obtain applicant, if a review of available evi- copies of their military personnel dence suggests that it would be incom- records by submitting a General Serv- plete without the additional informa- ices Administration Standard Form tion, or when the applicant presents 180, ‘‘Request Pertaining to Military testimony or documents that require Records,’’ to the National Personnel additional information to evaluate Records Center (NPRC), 9700 Page Bou- properly. Such information shall be levard, St. Louis, MO 63132. Once the made available to the applicant, upon application for discharge review (DD request, with appropriate modifica- Form 293) is submitted, an applicant’s tions regarding classified material. military records are forwarded to the (1) In any case heard on request of an NDRB where they cannot be repro- applicant, the NDRB shall provide the duced. Submission of a request for an applicant and counsel or representa- applicant’s military records, including tive, if any, at a reasonable time before a request under the Freedom of Infor- initiating the decision process, a notice mation Act (5 U.S.C. 552) or Privacy of the availability of all regulations Act (5 U.S.C. 552a) after the DD Form and documents to be considered in the 293 has been submitted, shall result discharge review, except for documents automatically in the temporary sus- in the official personnel or medical pension of processing of the application records and any documents submitted for discharge review until the re- by the applicant. The NDRB shall also quested records are sent to an appro- notify the applicant or counsel or rep- priate location for copying, are copied, resentative: (a) of the right to examine and are returned to the headquarters of such documents or to be provided with the NDRB. Processing of the applica- copies of the documents upon request; tion shall then be resumed at whatever (b) of the date by which such requests stage of the discharge review process is must be received; and (c) of the oppor- practicable. Applicants are encouraged tunity to respond within a reasonable to submit any request for their mili- period of time to be set by the NDRB.

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(2) When necessary to acquaint the § 724.216 Failure to appear at a hear- applicant with the substance of a clas- ing or respond to a scheduling no- sified document, the classifying au- tice. thority, on the request of the NDRB, (a) Except as otherwise authorized by shall prepare a summary of or an ex- the Secretary concerned, further op- tract from the document, deleting all portunity for a hearing shall not be references to sources of information made available in the following cir- and other matters, the disclosure of cumstances to an applicant who has re- which, in the opinion of the classifying quested a hearing: authority, would be detrimental to the (1) When the applicant has been sent national security interests of the a letter containing the month and loca- United States. Should preparation of tion of a proposed hearing and fails to such summary be deemed impracti- make a timely response; or cable by the classifying authority, in- (2) When the applicant, after being formation from the classified source notified by letter of the time and place shall not be considered by the NDRB in of the hearing, fails to appear at the its review of the case. appointed time, either in person or by (e) Regulations of a military depart- representative, without having made a ment may be obtained at many instal- prior, timely request for a continu- lations under the jurisdiction of the ation, postponement, or withdrawal. Military Department concerned or by (b) In such cases, the applicant shall writing to the following address: DA be deemed to have waived the right to Military Review Boards Agency, Atten- a hearing, and the NDRB shall com- tion: SFBA (Reading Room), Room plete its review of the discharge. Fur- 1E520, The Pentagon, Washington, DC ther request for a hearing shall not be 20310. granted unless the applicant can demonstrate that the failure to appear or [50 FR 10943, Mar. 19, 1985, as amended at 65 respond was due to circumstances be- FR 62616, Oct. 19, 2000] yond the applicant’s control.

§ 724.213 Attendance of witnesses. § 724.217 Limitation—Reconsider- Arrangement for attendance of wit- ations. nesses testifying in behalf of the appli- A discharge review shall not be sub- cant at discharge review hearings is ject to reconsideration except: the responsibility of the applicant. The (a) When the only previous consider- NDRB is not authorized to subpoena or ation of the case was on the motion of otherwise require their presence. the NDRB; (b) When the original discharge re- § 724.214 Applicant’s expenses. view did not involve a personal hearing and a hearing is now desired, and the Unless otherwise specified by law or provisions of § 724.216 do not apply; regulation, expenses incurred by the (c) When changes in discharge policy applicant, witnesses, or counsel/rep- are announced after an earlier review resentative will not be paid by the De- of an applicant’s discharge, and the partment of Defense. The NDRB is not new policy is made expressly retro- authorized to issue orders or other active; process to enable the applicant to ap- (d) When the NDRB determines that pear in person. policies and procedures under which the applicant was discharged differ in § 724.215 Military representation. material respects from policies and Military officers, except those acting procedures currently applicable on a pursuant to specific detailing by appro- service-wide basis to discharges of the priate authorities desiring to act for or type under consideration, provided on behalf of an applicant in the presen- that such changes in policies or proce- tation of a case before an NDRB Panel dures represent a substantial enhance- are advised to consult legal counsel be- ment of the rights afforded an appli- fore undertaking such representation. cant in such proceedings; Such representation may be prohibited (e) When an individual is to be rep- by 18 U.S.C. 205. resented by counsel or representative,

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and was not so represented in any pre- tion (10 U.S.C. 1553) which includes re- vious consideration of the case by the views requested by the Veterans Ad- NDRB; ministration under 38 U.S.C. 101, 3103 as (f) When the case was not previously amended by Pub. L. 95–126 of October 8, considered under uniform standards 1977 (See Pub. L. 98–209). published pursuant to Pub. L. 95–126 and such application is made within 15 § 724.221 Scheduling of discharge re- years after the date of discharge; or views. (g) On the basis of presentation of (a) If an applicant requests a personal new, substantial, relevant evidence not appearance discharge review, or to be available to the applicant at the time represented in absentia, the NDRB of the original review. The decision shall provide a hearing in the NCR or whether evidence offered by an appli- at another site within the forty-eight cant in support of a request for recon- contiguous states. sideration is in fact new, substantial, (b) The NDRB shall subsequently no- relevant, and was not available to the tify the applicant and representative applicant at the time of the original (if any) in writing of the proposed per- review will be based on a comparison of sonal appearance hearing time and such evidence with the evidence con- place. This notice shall normally be sidered in the previous discharge re- mailed thirty to sixty days prior to the view. If this comparison shows that the date of the hearing. If the applicant evidence submitted would have had a elects, this time limit may be waived probable effect on matters concerning and an earlier date set. the propriety or equity of the dis- (c) When an applicant requests a doc- charge, the request for reconsideration umentary review, the NDRB shall un- shall be granted. dertake the review as soon as practicable. Normally, documentary re- § 724.218 Limitation—Continuance and views shall be conducted in the order in Postponements. which they are received. (a) A continuance of a discharge review hearing may be authorized by the § 724.222 Personal appearance dis- President of the NDRB or presiding of- charge hearing sites. ficer of the panel concerned, provided (a) The NDRB shall be permanently that such continuance is of reasonable located, together with its administra- duration and is essential to achieving a tive staff, in the NCR. The NDRB shall full and fair hearing. When a proposal routinely conduct personal appearance for continuance is indefinite, the pend- discharge reviews and documentary re- ing application shall be returned to the views at this, its permanent office. applicant with the option to resubmit (b) In addition, as permitted by avail- when the case is fully ready for review. able resources, NDRB Panels shall (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

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and reserve Navy and Marine Corps and belief.1 The weight to be given this sources, as required. presumption in determining whether (c) Navy and Marine Corps activities the facts stated in the charge sheet are in the geographical vicinity of selected true is a matter to be determined by review sites shall provide administra- the NDRB. To the extent that the dis- tive support and augmentation to an charge proceeding reflects an official NDRB Panel during its visit where determination that the facts stated in such assistance can be undertaken the charge sheet are true; that the ap- without interference with mission ac- plicant/accused admitted the facts complishment. The NDRB shall coordi- stated in the charge sheet; or that the nate requests for augmentees and ad- applicant/accused admitted guilt of the ministrative support through Com- offense(s), then the presumption is mandant of the Marine Corps or the strengthened. In accordance with para- Chief of Naval Reserve, as appropriate. graph B12f of enclosure (3) to 32 CFR (d) The administrative staff of the part 70 the presumption may be rebut- NCPB shall undertake all arrange- ted by ‘‘substantial credible evidence.’’ ments for NDRB Traveling Panel visits and shall process associated review Subpart C—Director, Naval Coun- documents. cil of Personnel Boards and President Naval Discharge Re- § 724.224 Court-martial specifications, presumption concerning. view Board; Responsibilities in Support of the Naval Dis- (a) Relevant and material facts stat- charge Review Board ed in a court-martial specification, shall be presumed by the NDRB Panel § 724.301 Mission. as established facts. With respect to a discharge or dismissal adjudged by a To administer and supervise assigned boards and councils within the Depart- court-martial case tried under the Uni- ment of the Navy. form Code of Military Justice, the action may extend only to change in the § 724.302 Functions: Director, Naval discharge or dismissal for purposes of Council of Personnel Boards. clemency. This policy only applies to cases filed with the discharge review (a) Make recommendations to the board after December 6, 1983. Secretary of the Navy regarding organization, tasking and resources of the (b) Relevant and material facts stat- NDRB and its associated administra- ed in a court-martial specification, in tive support. the face of which the applicant re- (b) Submit recommendations to the quested a discharge for the good of the Secretary of the Navy regarding policy service to avoid trial by court-martial, and procedures for discharge review. shall be considered in accordance with (c) Provide administrative and cler- the following: ical support for NDRB. (1) If the applicant/accused was re- (d) Inform the Secretary of the Navy quired to admit the facts contained in of matters of interest to him. the charge sheet, or if the discharge authority was required to find that the (e) Maintain a system of records, instated facts were true, then the NDRB cluding as a minimum: can presume the truth of such facts, unless there is a substantial credible 1 Charges may be preferred by any person evidence to rebut this presumption; or subject to the Uniform Code of Military Jus- tice. The charges must be signed and sworn (2) If the discharge in lieu of court- to before a commissioned officer authorized martial only required a valid preferral, to administer oaths, and shall state that the the NDRB may presume that the signer signer has personal knowledge of, or has in- either had personal knowledge of, or vestigated the matters set forth therein; and had investigated the matters set forth, that the charges are true in fact to the best and that the charges were true in fact of the signer’s knowledge and belief. 10 U.S.C. 830 (1976) (Art. 30 Uniform Code of to the best of the signer’s knowledge Military Justice).

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(1) Records specified for the NDRB as and maintain associated NDRB indexes stipulated in the procedures prescribed updated quarterly. in subpart H of this Manual. (2) Records required for the adminis- § 724.304 Responsibility for Depart- tration of military and civilian per- ment of the Navy support of the Naval Discharge Review Board. sonnel. (3) Files of correspondence received The Commandant of the Marine and issued. Corps; Commander, Naval Military (f) Establish billet/position assign- Personnel Command; Commander, ment criteria for the NDRB. Naval Reserve Force; Commander, (g) Propose to the Secretary of the Naval Medical Command; and chiefs of Navy, changes to this instruction. other bureaus and offices of the De- (h) Issue requisite precepts and re- partment of the Navy shall provide move or add members to the NDRB support, as requested, to the Naval dis- from personnel detailed to serve on the charge review process. Naval Council of Personnel Boards, or § 724.305 Functions of the CMC and from personnel otherwise made avail- CNO. able. In the case of Navy, CNMPC, under § 724.303 Functions: President, Naval the CNP, shall discharge responsibil- Discharge Review Board. ities of the CNO. (a) Provide and facilitate access by (a) Exercise primary cognizance the NDRB to service/health records and within the Department of the Navy for other data associated with performance matters relating to discharge review. of duty of applicants. (b) Supervise and direct the activi- (b) Advise the NDRB of developments ties of the NDRB. in personnel management which may (c) Maintain appropriate liaison with have a bearing on discharge review discharge review activities in other judgments. services (use Army Discharge Review (c) Implement the discharge review Board as focal point for service coordi- decisions of the NDRB and those of nation). higher authority within respective (d) Maintain coordination with the areas of cognizance. Commandant of the Marine Corps (d) Include the record of NDRB pro- (Code M) and the Commander, Naval ceedings as a permanent part of the Military Personnel Command in mat- service record of the applicant in each ters associated with discharge review. case. (e) In conformance with (e) Where appropriate, recommend SECNAVINST 5211.5C, protect the pri- cases for the NDRB to review on its vacy of individuals in connection with own motion. discharge review. (f) Provide qualified personnel as (f) Assure that NDRB functions are NDRB members, recorders and admin- administered in accordance with the istrative staff. 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 (2) The procedures for applying for naval discharge review system. Make such a review. recommendations for changes and im- (h) Provide Navy and Marine Corps provements. Take action to avoid units and activities with information delays in processing of individual dis- on the mission of the Naval Discharge charge review actions. Review Board through entries in appro- (j) Provide NDRB inputs for the priate personnel administration direc- maintenance of a public reading file tives.

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§ 724.306 Functions of the Commander, § 724.407 Commander, Naval Reserve Naval Medical Command. Force. Under the CNO the Manages Naval Reserve resources. COMNAVMEDCOM shall facilitate, as Responsible for providing limited sup- required, access by the NDRB to health port to the Naval Discharge Review records of applicants. Board. (See subpart C).

§ 724.307 Functions of the Commander, § 724.408 Secretary of the Navy. Naval Reserve Force. The final authority within the De- In the case of Navy, the partment of the Navy in discharge re- COMNAVRESFOR shall discharge the view. responsibilities of the CNO— (a) Upon request and within available resources, provide qualified inactive Subpart E—Procedural Rights of duty reservists to serve as members of the Applicant and Administra- the NDRB. tive Actions Preliminary to Dis- (b) Upon request, provide appropriate charge Review accommodations to the NDRB Trav- eling Panels for purposes of conducting § 724.501 Procedural rights of the ap- reviews at Naval and Marine Corps Re- plicant. serve Centers and aviation facilities. Each applicant has the following procedural rights: Subpart D—Principal Elements of (a) Within 15 years after the date of the Navy Department Dis- discharge, to make a written request charge Review System for review of the applicant’s discharge if the discharge was other than the re- § 724.401 Applicants. sult of a general court-martial. The re- As defined in § 724.114. quest may include such other statements, affidavits, or documentation as § 724.402 Naval Discharge Review desired. Board. (b) To have that review conducted by As defined in § 724.102. the NDRB either in the NCR or other designated location, when a personal § 724.403 President, Naval Discharge appearance discharge review is desired. Review Board. (c) To appear before the NDRB in per- Supervises the Naval Discharge Re- son, with or without counsel/represent- view Board. (See subpart C). ative; with counsel/representative con- § 724.404 Director, Naval Council of currence, to have counsel/representa- Personnel Boards. tive present the applicant’s case in the 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/rep- § 724.405 Commandant of the Marine resentative. Corps or the Commander, Naval (d) To request copies of any docu- Military Personnel Command. ments or other evidence to be consid- Personnel managers of the Marine ered by the NDRB in the review of the Corps and the Navy; responsible for applicant’s discharge or dismissal providing limited support to the Naval other than the documents or evidence Discharge Review Board and for imple- contained in the official record or sub- mentation of departmental discharge mitted by the applicant prior to the review decisions. (See subpart C). conduct of the formal review and to be afforded an opportunity to examine § 724.406 Commander, Naval Medical such other documents or evidence or to Command. be provided with copies of them. Custodian of Navy and Marine Corps (e) To withdrawn the request for dis- health records. (See subpart C). charge review without prejudice at any

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time prior to the scheduled review, ex- § 724.502 Actions to be taken by the cept that failure to appear for a sched- applicant preliminary to discharge uled hearing shall not be construed or review. accepted as a withdrawal. (a) Application for Review of Discharge (f) To request a continuance of the or Dismissal from the Armed Forces of the review when the continuance is of a United States, DD Form 293 must be reasonable duration and essential to used in requesting a discharge review. achieving a full and fair hearing. The DD Form 293 is available at most mili- request must indicate the reason why tary installations and regional offices the continuance is required. of the Veterans Administration. This (g) To request postponement of the form is to be signed personally by the discharge review for good and suffi- applicant. In the event the discharged cient reason set forth in a timely man- individual is deceased or incompetent, ner. the form must be signed by an author- (h) To request reconsideration of the ized individual as discussed in § 724.113 discharge review under the conditions of this Manual. set forth in § 724.217. (b) The application is to be accom- (i) To have access to the information panied by: to be considered by the NDRB prior to (1) A copy of the certificate of dis- the actual review of the applicant’s charge, if available; case. (2) A copy of the Armed Forces of the United States Report of Transfer or (j) To have the applicant’s right to Discharge (DD–214), if available; privacy protected in any review con- (3) Certification of death, incom- ducted by the NDRB. petency and evidence of relationship in (k) When appearing personally before applicable cases (§ 724.113); the NDRB: (4) Other statements, affidavits, (1) To introduce witnesses, docu- depositions, documents and informa- ments, and sworn or unsworn testi- tion desired by the applicant to be con- mony. sidered by the NDRB. (2) To present oral or written argu- (c) Correspondence relating to review ments personally or through counsel/ of naval discharges should be addressed representative. to: (l) To submit documents, affidavits, Naval Discharge Review Board, Suite 905— briefs or arguments in writing. When 801 North Randolph Street, Arlington, VA the counsel/representative appears in 22203 person before the NDRB, arguments may be presented orally. (d) NDRB telephone number is (202) 696–4881. (m) To state clearly and specifically the issue or issues which the applicant § 724.503 NDRB response to applica- desires the NDRB to answer in writing. tion for discharge review. These must be presented in writing on (a) The NDRB shall acknowledge re- DD Form 293 by the applicant or coun- ceipt of the application. sel/representative. (b) In the event a documentary re- (n) To have the applicant’s discharge view is requested, the applicant shall reviewed under the standards of equity normally receive no further commu- and propriety outlined in subpart I. nication from the NDRB until notified (o) To be provided with a written de- of the decision in the case. cision on the applicant’s review. (c) In the event a personal appear- (p) If the case is to be forwarded for ance discharge review is requested, the Secretarial review, to present a timely applicant shall be notified of the pro- statement rebutting any findings, con- posed time and place of this review and clusions, or reasons of the NDRB or the shall be advised of the availability of President, NDRB, which are alleged to the official documents to be considered be erroneous on the facts, against the by the NDRB. substantial weight of the evidence, or (d) A copy of NDRB correspondence contrary to law or governing regula- to an applicant shall be sent to the rep- tion, prior to that Secretarial review. resentative of record, if any.

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§ 724.504 NDRB actions preliminary to Subpart F—Naval Discharge Re- discharge review. view Board Mission and Func- (a) When each application for dis- tions charge review is received by the NDRB, the service record and health record of § 724.601 General. the applicant will be requested from The NDRB is a component of the the appropriate record custodian. Naval Council of Personnel Boards and (b) Upon receipt, each record of serv- has its offices located in the NCR. The ice will be reviewed to determine NDRB conducts documentary reviews whether or not the applicant appears and personal appearance reviews in the to have been discharged under cir- NCR and, on a traveling basis, at se- cumstances which might act as a bar lected sites within the 48 contiguous to Veterans’ Administration benefits states. Regional site selection is predi- under 38 U.S.C. 3103. These cir- cated on the number of pending appli- cumstances of discharge are: cations accumulated from a given geo- (1) Discharge or dismissal by reason graphical area and the resources avail- of the sentence of a general court-mar- able to support distant personal ap- tial. pearance reviews. The NDRB does not (2) Discharge as a conscientious ob- maintain facilities other than at its jector who refused to perform military NCR offices. The primary sites of NCR duty, to wear the uniform or otherwise are: Chicago, IL; Dallas, TX; and San to comply with lawful orders of com- Francisco, CA. petent military authority. § 724.602 Mission. (3) Discharge as a deserter. (4) Discharge on the basis, or as part To decide, in accordance with stand- of the basis, of an absence without au- ards of naval law and discipline and the thority from active duty for a contin- standards for discharge review set uous period of at least 180 days, if such forth in subpart I, whether a discharge discharge was under conditions other or dismissal from the naval service is than honorable. Additionally, such ab- proper and equitable, or whether it sence is computed without regard to should be changed. the applicant’s normal or adjusted ex- § 724.603 Functions. piration of term of service. (5) Discharge or dismissal of an offi- (a) Meet as frequently as necessary cer based on acceptance of the officer’s to provide expeditious review of naval resignation for the good of the service. discharges. (b) Meet at locations within the 48 (6) Discharge, on his/her own applica- contiguous states as determined appro- tion, during a period of hostilities, as priate on the basis of the number of an alien. discharge review applications received (c) If it appears that the applicant from various geographical areas and of was discharged under one or more of available resources and facilities. the circumstances outlined in (c) Review applications for review of § 724.504b, a written notification will be discharges. sent which informs the applicant that: (d) In consonance with directives of (1) An initial service record review higher authority and the policies set reveals that the discharge may have forth in this Manual, grant or deny been awarded under circumstances change of discharges. which make the applicant ineligible for (e) Promulgate decisions in a timely receipt of VA benefits regardless of any manner. action taken by the NDRB. (f) Maintain a system of records. (2) Separate action by the Board for (g) Maintain liaison in discharge re- Correction of Naval Records (BCNR) view matters with: and/or the VA, in case of 180 days con- (1) General Counsel of the Navy. secutive UA disqualification, may con- (2) Commandant of the Marine Corps. fer eligibility for VA benefits. Instruc- (3) Chief of Naval Operations. tions for making application to the (i) Commander, Naval Reserve Force. BCNR and for contacting the VA are (ii) Commander, Naval Medical Com- provided. mand.

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(iii) Commander, Naval Military Per- respondence and issuance of NDRB de- sonnel Command, under the Chief of cisions. Naval Personnel. (4) Judge Advocate General of the § 724.703 Legal counsel. Navy. Normally, the NDRB shall function (5) Veterans’ service organizations. without the immediate attendance of (6) Discharge review boards of the legal counsel. In the event that a legal other services, using the Army Dis- advisory opinion is deemed appropriate charge Review Board as the focal point by the NDRB, such opinion shall be ob- for service coordination. tained routinely by reference to the (h) Protect the privacy of individuals senior Judge Advocate assigned to the whose records are reviewed. Office of the Director, Naval Council of (i) Maintain for public access a read- Personnel Boards. In addition, the ing file and associated index of records NDRB may request advisory opinions of NDRB proceedings in all reviews un- from staff offices of the Department of dertaken subsequent to July 1, 1975. the Navy, including, but not limited to the General Counsel and the Judge Ad- Subpart G—Organization of the vocate General. Naval Discharge Review Board Subpart H—Procedures of Naval § 724.701 Composition. Discharge Review Board The NDRB acting in plenary review § 724.801 Matters to be considered in session shall be composed of five mem- discharge review. bers. Normally the members shall be In the process of its review of dis- career military officers, assigned to charges, the NDRB shall examine the Naval Council of Personnel Boards available records and pertinent regula- or otherwise made available; inactive tions of the Department of the Navy, duty officers of the Navy and Marine together with such information as may Corps Reserve may serve as members be presented by the applicant and/or when designated to do so by the Presi- representative, which will normally in- dent, NDRB. clude: (a) Presiding officers of the NDRB (a) The application for discharge re- shall normally be Navy or Marine view; Corps officers in the grade of Captain/ (b) Statements, affidavits or docu- Colonel or above. mentation, if any, accompanying the (b) The remaining NDRB membership application or presented during hear- shall normally be not less than the ings; grade of Lieutenant Commander/Major (c) Testimony, if any, presented dur- with preference being given to senior ing hearings; grades. (d) Service and health records; (c) At least three of the five members (e) A brief of pertinent facts ex- of the NDRB shall belong to the service tracted from the service and health from which the applicant whose case is records, prepared by the NDRB re- under review was discharged. corder. (d) Individual membership in the NDRB may vary within the limitations § 724.802 Applicant’s responsibilities. of the prescribed composition. (a) Request for change of discharge. An (e) Any member of a panel of the applicant may request a change in the NDRB other than the presiding officer character of or reason for discharge (or may act as recorder for cases assigned. both). The recorder will participate as a vot- (1) Character of discharge. Block 7 of ing member of the panel. DD Form 293 provides an applicant an opportunity to request a specific § 724.702 Executive management. change in character of discharge (for The administrative affairs of the example, General Discharge to Honor- NDRB shall be managed by the Execu- able Discharge; Other than Honorable tive Secretary. This responsibility Discharge to General or Honorable Dis- shall include schedules, records, cor- charge). A person separated on or after

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1 October 1982 while in an entry level (ii) Separate listing of issues. Each status may request a change from issue submitted by an applicant should Other Than Honorable Discharge to be listed separately. Submission of a Entry Level Separation. A request for separate statement for each issue pro- review from an applicant who does not vides the best means of ensuring that have an Honorable Discharge will be the full import of the issue is conveyed treated as a request for a change to an to the NDRB. Honorable Discharge unless the appli- (iii) Use of DD Form 293. DD Form 293 cant requests a specific change to an- provides applicants with a standard other character of discharge. format for submitting issues to the (2) Reason for discharge. Block 7 of DD NDRB, and its use: Form 293 provides an applicant an op- (A) Provides a means for an applicant portunity to request a specific change to set forth clearly and specifically in the reason for discharge. If an appli- those matters that, in the option of the cant does not request a specific change applicant, provide a basis for changing in the reason for discharge, the NDRB the discharge; will presume that the request for re- (B) Assists the NDRB in focusing on view does not involve a request for those matters considered to be impor- change in the reason for discharge. tant by an applicant; Under its responsibility to examine the (C) Assists the NDRB in distin- propriety and equity of an applicant’s guishing between a matter submitted discharge, the NDRB will change the by an applicant in the expectation that reason for discharge if such a change is warranted. it will be treated as a decisional issue, (3) The applicant must ensure that and those matters submitted simply as issues submitted to the NDRB are con- background or supporting materials; sistent with the request for change in (D) Provides the applicant with discharge set forth in block 7 of the DD greater rights in the event that the ap- Form 293. If an ambiguity is created by plicant later submits a complaint con- a difference between and applicant’s cerning the decisional document; issue and the request in block 7, the (E) Reduces the potential for dis- NDRB will respond to the issue in the agreement as to the content of an ap- context of the action requested in plicant’s issue. block 7. In the case of a personal ap- (iv) Incorporation by reference. If the pearance hearing, the NDRB will at- applicant makes an additional written tempt to resolve the ambiguity under submission, such as a brief, in support § 724.802(c). of the application, the applicant may (b) Request for consideration of specific incorporate by reference specific issues issues. An applicant may request the set forth in the written submission in Board to consider specific issues which, accordance with the guidance on DD in the opinion of the applicant, form a Form 293. The reference shall be spe- basis for changing the character of or cific enough for the NDRB to identify reason for discharge, or both. In addi- clearly the matter being submitted as tion to the guidance set forth in this an issue. At a minimum, it shall iden- section, applicants should consult the tify the page, paragraph, and sentence other sections in this manual before incorporated. Because it is to the appli- submitting issues for consideration by cant’s benefit to bring such issues to the Board. the NDRB’s attention as early as pos- (1) Submission of issues on DD Form sible in the review, applicants who sub- 293. Issues must be provided to the mit a brief are strongly urged to set NDRB on DD Form 293 (82 Nov) before forth all such issues as a separate item the NDRB closes the review process for at the beginning of the brief. If it rea- deliberation. sonably appears that the applicant in- (i) Issues must be clear and specific. An advertently failed expressly to incor- issue must be stated clearly and spe- porate an issue which the applicant cifically in order to enable the NDRB clearly identifies as an issue to be ad- to understand the nature of the issue dressed by the NDRB, the NDRB shall and its relationship to the applicant’s respond to such an issue. (See §§ 724.805 discharge. and 724.806.)

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(v) Effective date of the new Form DD source of law (including a matter that 293. With respect to applications pend- requires a determination whether, ing (before November 1982, the effective under the circumstances of the case, date of the new DD Form 293), the action by military authorities was ar- NDRB shall consider issues clearly and bitrary, capricious, or an abuse of dis- specifically stated in accordance with cretion). Although a numerical ref- the rules in effect at the time of sub- erence to the regulation or other mission. With respect to applications sources of law alleged to have been vio- received after November 1982, if the ap- lated is not necessarily required, the plicant submits an obsolete DD Form context of the regulation or a descrip- 293, the NDRB shall accept the application of the procedures alleged to have tion, but shall provide the applicant been violated normally must be set with a copy of the new form and advise forth in order to inform the NDRB ade- the applicant that it will only respond quately of the basis for the applicant’s to issues submitted on the new form in position. accordance with this instruction. (iii) The applicant’s identification of an (2) Relationship of issues to character of issue. The applicant is encouraged, but or reason for discharge. If the applica- not required, to specify that each issue tion applies to both character of and pertains to the propriety or the equity reason for discharge, the applicant is of the discharge. This will assist the encouraged, but not required, to iden- NDRB in assessing the relationship of tify the issue as applying to either the the issue to propriety or equity. character of or the reason for discharge (4) Citation of matter from decisions. (or both). Unless the issue is directed The primary function of the NDRB in- at the reason for discharge expressly or volves the exercise of discretion on a by necessary implication, the NDRB case-by-case basis. Applicants are not will presume that it applies solely to required to cite prior decisions as the the character of discharge. basis for a change in discharge. If the (3) Relationship of issues to the stand- applicant wishes to bring the NDRB’s ards for discharge review. The NDRB re- attention to a prior decision as back- views discharges on the basis of issues ground or illustrative material, the ci- of propriety and equity. The standards tation should be placed in a brief or used by the NDRB are set forth in other supporting documents. If, how- § 724.804. The applicant is encouraged to ever, it is the applicant’s intention to review those standards before submit- submit an issue that sets forth specific ting any issue upon which the appli- principles and facts from a specific cant believes a change in discharge cited decision, the following require- should be based. ments with respect to applications re- (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,

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manual or similar source in which the or add additional written issues at that principles were discussed. At the appli- time. This does not preclude the NDRB cant’s request, such materials will be from developing its own decisional returned. issues. (iv) If the applicant fails to comply with requirements in § 724.802(b)(4), the § 724.803 The decisional document. decisional document shall note the de- A decisional document shall be pre- fect, and shall respond to the issue pared for each review. At a minimum, without regard to the citation. this document shall contain: (c) Identification by the NDRB of issues (a) The circumstances and character submitted by an applicant. The appli- of the applicant’s service as extracted cant’s issues shall be identified in ac- from available service records, includ- cordance with this section after a re- ing health records, and information view of the materials noted under provided by other government authori- § 924.803, is made. ties or the applicant, such as, but not (1) Issues on DD Form 293. The NDRB limited to: shall consider all items submitted as (1) Information concerning the dis- issues by an applicant on DD Form 293 charge under review, including: (or incorported therein). (i) Date (YYMMDD) of discharge; (2) Amendment of issues. The NDRB shall not request or instruct an appli- (ii) Character of discharge; cant to amend or withdraw any matter (iii) Reason for discharge; submitted by the applicant. Any (iv) The specific regulatory authority amendment or withdrawal of an issue under which the discharge was issued; by an applicant shall be confirmed in (v) Date (YYMMDD) of enlistment; writing by the applicant. Nothing in (vi) Period of enlistment; this provision: (vii) Age at enlistment; (i) Limits the NDRB’s authority to (viii) Length of service; question an applicant as to the mean- (ix) Periods of unauthorized absence; ing of such matter; (x) Conduct and efficiency ratings (ii) Precludes the NDRB from devel- (numerical or narrative); oping decisional issues based upon such (xi) Highest rank achieved; questions; (xii) Awards and decorations; (iii) Prevents the applicant from (xiii) Educational level; amending or withdrawing such matter (xiv) Aptitude test scores; any time before the NDRB closes the review process for deliberation; or (xv) Incidents of punishment pursu- (iv) Prevents the NDRB from pre- ant to Article 15, Uniform Code of Mili- senting an applicant with a list of pro- tary Justice (including nature and date posed decisional issues and written in- (YYMMDD) of offense or punishment); formation concerning the right of the (xvi) Convictions by court-martial; applicant to add to, amend, or with- (xvii) Prior military service and type draw the applicant’s submission. The of discharge received. written information will state that the (2) Any other matters in the appli- applicant’s decision to take such ac- cant’s record which pertains to the dis- tion (or decline to do so) will not be charge or the issues, or provide a clear- used against the applicant in the con- er picture of the overall quality of the sideration of the case. applicant’s service. (3) Additional issues identified during a (b) A list of the type of documents hearing. The following additional pro- submitted by or on behalf of the appli- cedure shall be used during a hearing cant (including written briefs, letters in order to promote the NDRB’s under- of recommendation, affidavits con- standing of an applicant’s presen- cerning the circumstances of the dis- tation. If, before closing the case for charge, or other documentary evi- deliberation, the NDRB believes that dence), if any. an applicant has presented an issue not (c) A statement whether the appli- listed on DD Form 293, the NDRB may cant testified, and a list of the type of so inform the applicant, and the appli- witnesses, if any , who testified on be- cant may submit the issue in writing half of the applicant.

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(d) A notation whether the applica- (n) An authentication of the docu- tion pertained to the character of dis- ment by an appropriate official. charge, the reason for discharge, or both. § 724.804 Decision process. (e) A list of the items submitted as (a) The NDRB or the NDRB panel, as issues on DD Form 293 or expressly inappropriate, shall meet in plenary ses- corporated therein and such other sion to review discharges and exercise items submitted as issues by the appli- its discretion on a case-by-case basis in cant that are identified as inadvert- applying the standard set forth in sub- ently omitted. If the issues are listed part I. verbatim on DD Form 293, a copy of the (b) The presiding officer is respon- relevant portion of the form may be at- sible for the conduct of the discharge tached. Issues that have been with- review. The presiding officer shall con- drawn or modified with the written vene, recess, and adjourn the NDRB consent of the applicant need not be panel as appropriate and shall main- listed. tain an atmosphere of dignity and de- (f) The response to the items sub- corum at all times. mitted as issues by the applicant. (c) Each NDRB member shall act (g) A list of decisional issues and a under oath or affirmation requiring discussion of such issues. careful, objective consideration of the (h) NDRB’s conclusions on the fol- application. NDRB members are re- lowing: sponsible for eliciting all facts nec- (1) Whether the character of or rea- essary for a full and fair review. They son for discharge should be changed. shall consider all information pre- (2) The specific changes to be made, sented to them by the applicant. In ad- if any. dition, they shall consider available military service and health records, to- (i) A record of the voting, including: gether with other records that may be (1) The number of votes for the in the files of the military department NDRB’s decision and the number of concerned and relevant to the issues votes in the minority, if any. before the NDRB, and any other evi- (2) The NDRB members’ names and dence obtained in accordance with this votes. The copy provided to the appli- Manual. cant may substitute a statement that (d) The NDRB shall identify and ad- the names and votes will be made dress issues after a review of the fol- available to the applicant at the appli- lowing material obtained and presented cant’s request. in accordance with this Manual and (j) Advisory opinions, including those any implementing instructions of the containing factual information, when NDRB: available official records, docu- 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

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before the discharge authority, includ- response to multiple issues when such ing the service regulations governing action would enhance the clarity of the reasons for discharge at the time the decisional document, but such response applicant was discharged. Unless it is must reflect an adequate response to also determined that the discharge was each separate issue. inequitable, the provisions as to the (b) Decisional issues. An item sub- characterization in the regulation mitted as an issue by an applicant in under which the applicant should have accordance with this Manual shall be been discharged will be considered in addressed as a decisional issue in the determining whether further relief is following circumstances: warranted. (1) When the NDRB decides that a (2) When the NDRB determines that change in discharge should be granted, an applicant’s discharge was inequi- and the NDRB bases its decision in table, any change will be based on the whole or in part on the applicant’s evaluation of the applicant’s overall issue; or record of service and relevant regula- (2) When the NDRB does not provide tions of the service of which the appli- the applicant with the full change in cant was a member. discharge requested, and the decision is (g) Voting shall be conducted in based in whole or in part on the closed session, a majority of the votes NDRB’s disagreement on the merits of the five members constituting the with an issue submitted by the appli- NDRB decision. cant. (h) Details of closed session delibera- (c) Response to items not addressed as tions of the NDRB are priviledged in- decisional issues. (1) If the applicant re- formation and shall not be divulged. ceives the full change in discharge re- (i) There is no requirement for a quested (or a more favorable change), statement of minority views in the that fact shall be noted and the basis event of a split vote. shall be addressed as a decisional issue. (j) The NDRB may request advisory No further response is required to opinions from appropriate staff officers other issues submitted by the appli- of the naval service. These opinions are cant. advisory in nature and are not binding (2) If the applicant does not receive on the NDRB in its decision-making the full change in discharge requested process. with respect to either the character of (k) The preliminary determinations or reason for discharge (or both), the required by 38 U.S.C. 3103(e) shall be NDRB shall address the items sub- made upon majority vote of the NDRB mitted by the applicant under § 724.806, concerned on an expedited basis. Such (Decisional Issues) unless one of the determination shall be based upon the following responses is applicable: standards set forth in this Manual. (i) Duplicate issues. The NDRB may state that there is a full response to § 724.805 Response to items submitted the issue submitted by the applicant as issues by the applicant. under a specified decisional issue. This (a) General guidance. (1) If any issue response may be used only when one submitted by an applicant contains issue clearly duplicates another or the two or more clearly separate issues, issue clearly requires discussion in con- the NDRB should respond to each issue junction with another issue. under the guidance of this paragraph as (ii) Citations without principles and if it had been set forth separately by facts. The NDRB may state that the ap- the applicant. plicant’s issue, which consists of a cita- (2) If an applicant uses a ‘‘building tion to a decision without setting forth block’’ approach (that is, setting forth any principles and facts from the deci- a series of conclusions on issues that sion that the applicant states are rel- lead to a single conclusion purportedly evant to the applicant’s case, does not warranting a change in the applicant’s comply with the requirements of discharge), normally there should be a § 724.802(b)(4). separate response to each issue. (iii) Unclear issues. The NDRB may (3) Nothing in this paragraph pre- state that it cannot respond to an item cludes the NDRB from making a single submitted by the applicant as an issue

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because the meaning of the item is un- (3) Relationship of an issue to propriety clear. An issue is unclear if it cannot or equity. (i) If an applicant identifies be understood by a reasonable person an issue as pertaining to both pro- familiar with the discharge review priety and equity, the NDRB will con- process after a review of the materials sider it under both standards. considered. (ii) If an applicant identifies an issue (iv) Nonspecific issues. The NDRB may as pertaining to the propriety of the state that it cannot respond to an item discharge (for example, by citing a pro- submitted by the applicant as an issue priety standard or otherwise claiming because it is not specific. A submission that a change in discharge is required is considered not specific if a reason- as a matter of law), the NDRB shall able person familiar with the discharge consider the issue solely as a matter of review process after a review of the propriety. Except as provided in materials considered cannot determine § 724.806(a)(3)(d), the NDRB is not re- the relationship between the appli- quired to consider such an issue under cant’s submission and the particular the equity standards. circumstances of the case. This re- (iii) If the applicant’s issue contends sponse may be used only if the submis- that the NDRB is required as a matter sion is expressed in such general terms of law to follow a prior decision by set- that no other response is applicable. ting forth an issue of propriety from For example, if the NDRB disagrees the prior decision and describing its re- with the applicant as to the relevance lationship to the applicant’s case, the of matters set forth in the submission, issue shall be considered under the pro- the NDRB normally will set forth the priety standards and addressed under nature of the disagreement with re- § 724.806 (a) or (b). spect to decisional issues, or it will re- (iv) If the applicant’s issue sets forth ject the applicant’s position. If the ap- principles of equity contained in a plicant’s submission is so general that prior NDRB decision, describes the re- none of those provisions is applicable, lationship to the applicant’s case, and then the NDRB may state that it can- contends that the NDRB is required as not respond because the item is not a matter of law to follow the prior specific. case, the decisional document shall note that the NDRB is not bound by its § 724.806 Decisional issues. discretionary decisions in prior cases. (a) General. Under the guidance in However, the principles cited by the this section, the decisional document applicant, and the description of the shall discuss the issues that provide a relationship of the principles to the ap- basis for the decision whether there plicant’s case, shall be considered and should be a change in the character of addressed under the equity standards. or reason for discharge. In order to en- (v) If the applicant’s issue cannot be hance clarity, the NDRB should not ad- identified as a matter of propriety or dress matters other than issues relied equity, the NDRB shall address it as an upon in the decision or raised by the issue of equity. applicant. (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.

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(c) Denial of the full change requested: of a statement that the applicant failed issues of propriety. (1) If the decision re- to provide sufficient corroborating evi- jects the applicant’s position on an dence, or that the NDRB did not find issue of propriety, of if it is otherwise the applicant’s testimony to be suffi- decided on the basis of an issue of pro- ciently credible to overcome the pre- priety that the full change in discharge sumption. requested by the applicant is not war- (iii) If the NDRB disagrees with the ranted, the decisional document shall position of the applicant on an issue of note that conclusion. propriety, the following guidance ap- (2) The decisional document shall list plies in addition to the guidance in reasons for its conclusion on each issue § 724.806(c)(2) (a) and (b): of propriety under the following guid- (A) The NDRB may reject the appliance: cant’s position by explaining why it (i) If a reason is based in whole or in disagrees with the principles set forth part upon a regulation, statute, con- in the applicant’s issue (including prin- stitutional provision, judicial deter- ciples derived from cases cited by the mination, or other source of law, the applicant in accordance with NDRB shall cite the pertinent source of § 724.802(b)(4). law and the facts in the record that (B) The NDRB may reject the appli- demonstrate the relevance of the cant’s position by explaining why the source of law to the particular cir- principles set forth in the applicant’s cumstances in the case. issue (including principles derived from (ii) If a reason is based in whole or in cases cited by the applicant in accord- part on a determination as to the oc- ance with § 724.802(b)(4)) are not rel- currence or nonoccurrence of an event evant to the applicant’s case. or circumstances, including a factor re- (C) The NDRB may reject an appli- quired by applicable service regula- cant’s position by stating that the ap- tions to be considered for determina- plicant’s issue of propriety is not a tion of the character of and reason for matter upon which the NDRB grants a the applicant’s discharge, the NDRB change in discharge, and by providing shall make a finding of fact for each an explanation for this position. When such event or circumstance. the applicant indicates that the issue (A) For each such finding, the is to be considered in conjunction with decisional document shall list the spe- one or more other specified issues, the cific source of the information relied explanation will address all such speci- upon. This may include the presump- fied issues. tion of regularity in appropriate cases. (D) The NDRB may reject the appli- If the information is listed in the serv- cant’s position on the grounds that ice record section of the decisional doc- other specified factors in the case pre- ument, a citation is not required. clude granting relief, regardless of (B) If a finding of fact is made after whether the NDRB agreed with the ap- consideration of contradictory evi- plicant’s position. dence in the record (including informa- (E) If the applicant take the position tion cited by the applicant or other- that the discharge must be changed be- wise identified by members of the cause of an alleged error in a record as- NDRB), the decisional document shall sociated with the discharge, and the set forth the conflicting evidence and record has not been corrected by the explain why the information relied organization with primary responsi- upon was more persuasive than the in- bility for corrective action, the NDRB formation that was rejected. If the pre- may respond that it will presume the sumption of regularity is cited as the validity of the record in the absence of basis for rejecting such information, such corrective action. If the organiza- the decisional document shall explain tion empowered to correct the record is why the contradictory evidence was in- within the Department of Defense, the sufficient to overcome the presump- NDRB should provide the applicant tion. In an appropriate case, the expla- with a brief description of the proce- nation as to why the contradictory evi- dures for requesting correction of the dence was insufficient to overcome the record. If the NDRB on its own motion presumption of regularity may consist cites this issue as a decisional issue on

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the basis of equity, it shall address the (2) The NDRB shall list reasons for issue. its conclusion on each issue of equity (F) When an applicant’s issue con- under the following guidance: tains a general allegation that a cer- (i) If a reason is based in whole or in tain course of action violated his or her part upon a regulation, statute, con- constitutional rights, the NDRB may stitutional provision, judicial deter- respond in appropriate cases by noting mination, or other source of law, the that the action was consistent with NDRB shall cite the pertinent source of statutory or regulatory authority, and law and the facts in the record that by citing the presumption of constitu- demonstrate the relevance of the tionality that attaches to statutes and source of law to the exercise of discre- regulations. If, on the other hand, the tion on the issue of equity in the applicant’s case. applicant makes a specific challenge to (ii) If a reason is based in whole or in the constitutionality of the action by part on a determination as to the oc- challenging the application of a stat- currence or nonoccurrence of an event ute or regulation in a particular set of or circumstance, including a factor re- circumstances, it is not sufficient to quired by applicable service regula- respond solely by citing the presumptions to be considered for determination of constitutionality of the statute tion of the character of and reason for or regulation when the applicant is not the applicant’s discharge, the NDRB challenging the constitutionality of shall make a finding of fact for each the statute or regulation. Instead, the such event or circumstance. response must address the specific cir- (A) For each such finding, the cumstances of the case. decisional document shall list the spe- (d) Denial of the full change in dis- cific source of the information relied charge requested when propriety is not at upon. This may include the presump- issue. If the applicant has not sub- tion of regularity in appropriate cases. mitted an issue of propriety and the If the information is listed in the serv- NDRB has not otherwise relied upon an ice record section of the decisional doc- issue of propriety to change the dis- ument, a citation is not required. charge, the decisional document shall (B) If a finding of fact is made after contain a statement to that effect. The consideration of contradictory evi- NDRB is not required to provide any dence in the record (including informa- further discussion as to the propriety tion cited by the applicant or other- of the discharge. wise indentified by members of the (e) Change of discharge: issues of eq- NDRB), the decisional document shall uity. If the NDRB concludes that a set forth the conflicting evidence and change in the discharge is warranted explain why the information relied under the equity standards, the upon was more persuasive than the information 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

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in addition to the guidance in para- such a factor is expressly raised as an graphs above: issue by the applicant. (A) The NDRB may reject the appli- (v) If the applicant has not submitted cant’s position by explaining why it any issues and the NDRB has not oth- disagrees with the principles set forth erwise relied upon an issue of equity in the applicant’s issue (including prin- for a change in discharge, the ciples derived from cases cited by the decisional document shall contain a applicant). statement to that effect, and shall note (B) The NDRB may reject the appli- that the major factors upon which the cant’s position by explaining why the discharge was based are set forth in the principles set forth in the applicant’s service record portion of the decisional issue (including principles derived from document. cases cited by the applicant) are not relevant to the applicant’s case. § 724.807 Record of NDRB proceedings. (C) The NDRB may reject an appli- (a) When the proceedings in any re- cant’s position by explaining why the view have been concluded, a record applicant’s issue is not a matter upon thereof will be prepared. Records may which the NDRB grants a change in include written records, electro- discharge as a matter of equity. When magnetic records, audio and/or video- the applicant indicates that the issue tape recordings, or a combination. is to be considered in conjunction with (b) At a minimum, the record will in- other specified issues, the explanation clude the following: will address all such specified issues. (1) The application for review; (D) The NDRB may reject the appli- (2) A record of the testimony in ei- cant’s position on the grounds that ther verbatim, summarized, or re- other specified factors in the case pre- corded form at the option of the NDRB; clude granting relief, regardless of (3) Documentary evidence or copies, whether the NDRB agrees with the ap- other than the military service record plicant’s position. considered by the NDRB; (E) If the applicant takes the posi- (4) Briefs and arguments submitted tion that the discharge should be by or on behalf of the applicant; changed as a matter of equity because (5) Advisory opinions considered by of an alleged error in a record associ- the NDRB, if any: ated with the discharge, and the record (6) The findings, conclusions, and rea- has not been corrected by the organiza- sons developed by the NDRB; tion with primary responsibility for (7) Notification of the NDRB’s deci- corrective action, the NDRB may re- sion to the cognizant custodian of the spond that it will presume the validity applicant’s records, or reference to the of the record in the absence of such notification document; corrective action. However, the NDRB (8) A copy of the decisional docu- will consider whether it should exercise ment. its equitable powers to change the discharge on the basis of the alleged error. § 724.808 Issuance of decisions fol- If it declines to do so, it shall explain lowing discharge review. why the applicant’s position did not The applicant and counsel or rep- provide a sufficient basis for the resentative, if any, shall be provided change in the discharge requested by with a copy of the decisional document the applicant. and of any further action in review. (iv) When NDRB concludes that ag- Final notification of decisions shall be gravating factors outweigh mitigating issued to the applicant with a copy to factors, the NDRB must set forth rea- the counsel or representative, if any, sons such as the seriousness of the of- and to the service manager concerned. fense, specific circumstances sur- (a) Notification to applicants, with rounding the offense, number of of- copies to counsel or representatives, fenses, lack of mitigating cir- shall normally be made through the cumstances, or similar factors. The U.S. Postal Service. Such notification NDRB is not required however, to ex- shall consist of a notification of deci- plain why it relied on any such factors sion, together with a copy of the unless the applicability or weight of decisional document.

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(b) Notification to the service man- plicant’s records when required in proc- ager shall be for the purpose of appro- essing a complaint. priate action and inclusion of review (c) Any other privileged or classified matter in personnel records. Such noti- material contained in or appended to fication shall bear appropriate certifi- any documents required by this Man- cation of completeness and accuracy. ual to be furnished the applicant and (c) Actions on review by superior au- counsel or representative or made thority, when occurring, shall be pro- available for public inspection and vided to the applicant and counsel or copying may be deleted only if a writ- representative in the same manner as ten statement on the basis for the dele- to the notification of the review deci- tions is provided the applicant and sion. counsel or representative and made available for public inspection. It is § 724.809 Final disposition of the not intended that the statement be so record of proceedings. detailed as to reveal the nature of the The original decisional document and withheld material. all appendices thereto, shall in all (d) NDRB documents made available cases be incorporated in the military for public inspection and copying shall service record of the applicant and the be located in the Armed Forces Dis- service record shall be returned to the charge Review/Correction Board Read- custody of the appropriate record holding Room. The documents shall be indexed in a usable and concise form so ing facility. If a portion of the original as to enable the public, and those who record of proceedings cannot be stored represent applicants before the NDRB, with the service record, the service to isolate from all these decisions that record shall contain a notation as to are indexed, those cases that may be the place where the record is stored. similar to an applicant’s case and that Other copies including any electro- indicate the circumstances under or magnetic records, audio and/or video- reasons for (or both) which the NDRB tape recordings or any combination or the Secretary concerned granted or thereof shall be filed in the NDRB case denied relief. folder and disposed of in accordance (1) The reading file index shall in- with appropriate naval regulations. clude, in addition to any other item determined by the NDRB, the case num- § 724.810 Availability of Naval Dis- charge Review Board documents ber, the date, character of, reason and for public inspection and copying. authority for the discharge. It shall 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

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DRBs. The NDRB shall be responsible § 724.813 The recommendation of the for timely submission to the Reading NDRB president. Room of individual case information (a) General. The president of the required for update of the indexes. In NDRB may forward cases for consider- addition, the NDRB shall be respon- ation by the Secretarial Review Au- sible for submission of new index cat- thority (SRA). There is no requirement egories based upon published changes that the president submit a rec- in policy, procedures, or standards. ommendation when a case is forwarded These indexes shall be available for to the SRA. If the president makes a public inspection or purchase (or both) recommendation with respect to the at the Reading Room. When the NDRB character of or reason for discharge, has accepted an application, informa- however, the recommendation shall be tion concerning the availability of the prepared under the guidance in index shall be provided in the NDRB’s § 724.813b. response to the application. (b) Format for recommendation. If a recommendation is provided, it shall § 724.811 Privacy Act information. contain the president’s view whether Information protected under the Pri- there should be a change in the char- vacy Act is involved in the discharge acter of or reason for discharge (or review functions. The provisions of both). If the president recommends SECNAVINST 5211.5C shall be observed such a change, the particular change to throughout the processing of a request be made shall be specified. The rec- for review of discharge or dismissal. ommendation shall set forth the president’s position on decisional issues and § 724.812 Responsibilities of the Read- issues submitted by the applicant ing Room. under the following guidance: (a) Copies of decisional documents (1) Adoption of the NDRB’s decisional will be provided to individuals or orga- document. The recommendation may nizations outside the NCR in response state that the president has adopted to written requests for such docu- the decisional document prepared by ments. Although the Reading Room the majority. The president shall en- shall try to make timely responses to sure that the decisional document such requests, certain factors such as meets the requirements of this enclo- the length of a request, the volume of sure. other pending requests, and the impact (2) Adoption of the specific statements of other responsibilities of the staff as- from the majority. If the President signed to such duties may cause some adopts the views of the majority only delays. A fee may be charged for such in part, the recommendation shall cite documents under appropriate DOD and the specific matter adopted from the majority. If the president modifies a Department of the Army directives and statement submitted by the majority, regulations. The manual that accom- the recommendation shall set forth the panies the index of decisions shall no- modification. tify the public that if an applicant in- (3) Response to issues not included in dicates that a review is scheduled for a matter adopted from the majority. The specific date, an effort will be made to recommendation shall set forth the fol- provide requested decisional docu- lowing if not adopted in whole or in ments before that date. The individual part from the majority: or organization will be advised if that (i) The issues on which the presi- cannot be accomplished. dent’s recommendation is based. Each (b) Correspondence relating to mat- such decisional issue shall be addressed ters under the cognizance of the Read- by the president. ing Room (including requests for pur- (ii) The president’s response to items chase of indexes) shall be addressed to: submitted as issues by the applicant. DA Military Review Board Agency, Atten- (iii) Reasons for rejecting the conclu- tion: SFBA (Reading Room), Room 1E520, sion of the majority with respect to the The Pentagon, Washington, DC 20310. decisional document which, if resolved

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in the applicant’s favor, would have re- ment are required, the decisional docu- sulted in greater relief for the appli- ment shall be returned to the NDRB cant than that afforded by the presi- for corrective action. The corrected dent’s recommendation. Such issues decisional document shall be sent to shall be addressed under the principles the applicant (and counsel, if any), but in § 724.806. a further opportunity for rebuttal is not required unless the correction pro- § 724.814 Secretarial Review Authority duces a different result or includes a (SRA). substantial change in the decision by (a) Review by the SRA. The Secre- the NDRB (or NDRB president) of the tarial Review Authority (SRA) is the issues raised by the majority or the ap- Secretary concerned or the official to plicant. whom Secretary’s discharge review au- (d) The addendum of the SRA. The de- thority has been delegated. cision of the SRA shall be in writing (1) The SRA may review the fol- and shall be appended as an addendum lowing types of cases before issuance of to the decisional document under the the final notification of a decision: guidance in this subsection. (i) Any specific case in which the (1) The SRA’s decision. The addendum SRA has an interest. shall set forth the SRA’s decision (ii) Any specific case that the presi- whether there will be a change in the dent of the NDRB believes is of signifi- character of or reason for discharge (or cant interest to the SRA. both); if the SRA concludes that a (2) Cases reviewed by the SRA shall change is warranted, the particular be considered under the standards set change to be made shall be specified. If forth in this part. the SRA adopts the decision rec- (b) Processing the decisional document. ommended by the NDRB or the NDRB (1) The decisional document shall be president, the decisional document transmitted by the NDRB president shall contain a reference to the matter under § 724.813. adopted. (2) The following guidance applies to (2) Discussion of issues. In support of cases that have been forwarded to the the SRA’s decision, the addendum shall SRA except for cases reviewed on the set forth the SRA’s position on NDRB’s own motion, without the par- decisional issues, items submitted as ticipation of the applicant or the appli- issues by an applicant and issues raised cant’s counsel: by the NDRB and the NDRB president (i) The applicant and counsel or rep- in accordance with the following guid- resentative, if any, shall be provided ance: with a copy of the proposed decisional (i) Adoption of the NDRB president’s document, including the NDRB presi- recommendation. The addendum may dent’s recommendation to the SRA, if state that the SRA has adopted the any. Classified information shall be NDRB president’s recommendation. summarized. (ii) Adoption of the NDRB’s proposed (ii) The applicant shall be provided decisional document. The addendum may with a reasonable period of time, but state that the SRA has adopted the not less than 25 days, to submit a re- proposed decisional document prepared buttal to the SRA. Any issue in rebut- by the NDRB. tal consists of a clear and specific (iii) Adoption of specific statements statement by the applicant in support from the majority or the NDRB president. of or in opposition to the statements of If the SRA adopts the views of the the NDRB or NDRB president on NDRB or the NDRB president only in decisional issues and other clear and part, the addendum shall cite the spe- specific issues that were submitted by cific statements adopted. If the SRA the applicant. The rebuttal shall be modifies a statement submitted by the based solely on matters in the record NDRB or the NDRB president, the ad- before the NDRB closed the case for de- dendum shall set forth the modifica- liberation or in the president’s rection. ommendation. (iv) Response to issues not included in (c) Review of the decisional document. matter adopted from the NDRB or the If corrections in the decisional docu- NDRB president. The addendum shall

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set forth the following if not adopted in erences thereto. Complaints will be re- whole or in part from the NDRB or the viewed pursuant to 32 CFR part 70. NDRB president: (A) A list of the issues on which the Subpart I—Standards for SRA’s decision is based. Each such Discharge Review decisional document issue shall be addressed by the SRA. This includes rea- § 724.901 Objective of discharge re- sons for rejecting the conclusion of the view. NDRB or the NDRB president with re- The objective of a discharge review is spect to decisional issues which, if re- ot examine the propriety and equity of solved in the applicant’s favor, would the applicant’s discharge and to effect have resulted in a change to the dis- changes, if necessary. The standards of charge more favorable to the applicant the review and the underlying factors than that afforded by the SRA’s deci- which aid in determining whether the sion. Such issues shall be addressed standards are met shall be consistent under the principles in § 724.806(f). with historical criteria for determining (B) The SRA’s response to items sub- honorable service. No factors shall be mitted as issues by the applicant. established that require automatic (3) Response to the rebuttal. (i) If the change or denial of a change in a dis- SRA grants the full change in discharge. Neither the NDRB nor the Sec- charge requested by the applicant (or a retary of the Navy shall be bound by more favorable change), that fact shall any methodology of weighting of the be noted, the decisional issues shall be factors in reaching a determination. In addressed and no further response to each case, the NDRB shall give full, the rebuttal is required. fair, and impartial consideration to all (ii) If the SRA does not grant the full applicable factors before reaching a de- change in discharge requested by the cision. An applicant may not receive a applicant (or a more favorable change), less favorable discharge than that the addendum shall list each issue in issued at the time of separation. This rebuttal submitted by an applicant in does not preclude correction of clerical accordance with this section, and shall errors. set forth the response of the SRA under the following guidance: § 724.902 Propriety of the discharge. (A) If the SRA rejects an issue in re- (a) A discharge shall be deemed to be buttal, the SRA may respond in ac- proper unless, in the course of dis- cordance with the principals in charge review, it is determined that: § 724.806. (1) There exists an error of fact, law, (B) If the matter adopted by the SRA procedure, or discretion associated provides a basis for the SRA’s rejection with the discharge at the time of of the rebuttal material, the SRA may issuance; and that the rights of the ap- note that fact and cite the specific plicant were prejudiced thereby (such matter adopted that responds to the error shall constitute prejudicial error issue in rebuttal. if there is substantial doubt that the (C) If the matter submitted by the discharge would have remained the applicant does not meet the require- same if the error had not been made); ments for rebuttal material, that fact or shall be noted. (2) A change in policy by the military (4) Index entries. Appropriate index service of which the applicant was a entries shall be prepared for the SRA’s member, made expressly retroactive to actions for matters that are not adopt- the type of discharge under considered from the NDRB’s proposed ation, requires a change in the dis- decisional document. charge. (b) When a record associated with the § 724.815 Complaints. discharge at the time of issuance in- A complaint is any correspondence in volves a matter in which the primary which it is alleged that a decisional responsibility for corrective action document issued by the NDRB or the rests with another organization (for ex- SRA contains a specifically indentified ample, another Board, agency, or violation of 32 CFR part 70 or any ref- court) the NDRB will recognize an

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error only to the extent that the error (1) Current policies or procedures rep- has been corrected by the organization resent a substantial enhancement of with primary responsibility for cor- the rights afforded a respondent in recting the record. such proceedings; and (c) The primary function of the (2) There is substantial doubt that NDRB is to exercise its discretion on the applicant would have received the issues of equity by reviewing the indi- same discharge, if relevant current vidual merits of each application on a policies and procedures had been avail- case-by-case basis. Prior decisions in able to the applicant at the time of the which the NDRB exercised its discre- discharge proceedings under consider- tion to change a discharge based on ation. issues of equity (including the factors (b) At the time of issuance, the dis- cited in such decisions or the weight charge was inconsistent with standards given to factors in such decisions) do of discipline in the military service of not bind the NDRB in its review of sub- which the applicant was a member. sequent cases because no two cases (c) In the course of a discharge represent the same issues of equity. view, it is determined that relief is (d) The following applies to appli- warranted based upon consideration of cants who received less than fully hon- the applicant’s service record and other orable administrative discharges be- evidence presented to the NDRB viewed cause of their civilian misconduct in conjunction with the factors listed while in an inactive duty status in a in this paragraph and the regulations reserve component and who were dis- under which the applicant was discharged or had their discharge re- charged, even though the discharge was viewed on or after April 20, 1971: the determined to have been otherwise eq- NDRB shall either recharacterize the uitable and proper at the time of discharge to Honorable without any ad- issuance. Areas of consideration in- ditional proceedings or additional pro- clude, but are not limited to: ceedings shall be conducted in accord- (1) Quality of service, as evidenced by ance with the Court’s Order of Decem- factors such as: ber 3, 1981, in Wood v. Secretary of De- (i) Service history, including date of fense to determine whether proper enlistment, period of enlistment, high- grounds exist for the issuance of a less est rank achieved, conduct and pro- than honorable discharge, taking into ficiency ratings (numerical and nar- account that: rative); (1) An other than honorable (for- (ii) Awards and decorations; merly undesirable) discharge for an in- (iii) Letters of commendation or rep- active duty reservist can only be based rimand; upon civilian misconduct found to have (iv) Combat service; affected directly the performance of (v) Wounds received in action; military duties; (vi) Records of promotions and demo- (2) A general discharge for an inac- tions; tive duty reservist can only be based (vii) Level of responsibility at which upon civilian misconduct found to have the applicant served; had an adverse impact on the overall (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; (ix) Length of service during the § 724.903 Equity of the discharge. 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;

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(xii) Records of nonjudicial punish- charge Review Board, will consider applica- ment; tions for such review from former service (xiii) Convictions by civil authorities members. Each Secretary is authorized to while a member of the service, re- issue a discharge under honorable conditions upon establishment of facts consistent with flected in the discharge proceedings or this policy. Former service members will be otherwise noted in the service records; notified of the results of the review. The Vet- (xiv) Records of periods of unauthor- erans’ Administration will also be notified of ized absence; the names of former service members whose (xv) Records relating to a discharge discharges are recharacterized. in lieu of court-martial. ‘‘The statute of limitations for review of (2) Capability to serve, as evidenced discharges within the scope of this policy by factors such as: will be in accordance with 10 United States Code 1553. (i) Total capabilities. This includes an ‘‘This policy shall apply to those service evaluation of matters such as age, edu- members whose cases are finalized or in cational level, and aptitude scores. process on or before July 7, 1971’’. Consideration may also be given as to Secretary of Defense memorandum of April whether the individual met normal 28, 1972, to Secretaries of the Military De- military standards of acceptability for partments, Chairman, Joint Chiefs of Staff; military service and similar indicators Subject: Review of Punitive Discharges of an individual’s ability to serve satis- Issued to Drug Users: ‘‘Reference is made to Secretary Packard’s factorily, as well as ability to adjust to memorandum of July 7, 1971, concerning re- military service. habilitation and treatment of drug users, (ii) Family and personal problems. This and my memorandum of August 13, 1971, sub- includes matters in extenuation or ject: ‘Review of Discharges Under Other mitigation of the reason for discharge Than Honorable Conditions Issued to Drug that may have affected the applicant’s Users.’ ability to serve satisfactorily. ‘‘My August 13, 1971 memorandum estab- (iii) Arbitrary or capricious actions. lished the current Departmental policy that administrative discharges under other than This includes actions by individuals in honorable conditions issued solely on the authority which constiute a clear basis of personal use of drugs or possession of abuse of such authority and that, al- drugs for the purpose of such use will be re- though not amounting to prejudicial viewed for recharacterization to under hon- error, may have contributed to the de- orable conditions. cision to discharge the individual or ‘‘It is my desire that this policy be ex- unduly influence the characterization panded to include punitive discharges and dismissals resulting from approved sentences of service. of courts-martial issed solely for conviction (iv) Discrimination. This includes un- of personal use of drugs or possession of authorized acts as documented by drugs for the purpose of such use. records or other evidence. ‘‘Review and recharacterization are to be effected, upon the application of former serv- APPENDIX A TO PART 724—POLICY ice members, utilizing the procedures and STATEMENT BY THE SECRETARY OF authority set forth in Title 10, United States DEFENSE—ADDRESSING CERTAIN Code, sections 874(b), 1552 and 1553. CATEGORIES OF DISCHARGES ‘‘This policy is applicable only to discharges which have been executed on or be- Secretary of Defense memorandum of Au- fore July 7, 1971, or issued as a result of a gust 13, 1971, to the Secretaries of the Mili- case in process on or before July 7, 1971. tary Departments, The Chairman, Joint ‘‘Former service members requesting a re- Chiefs of Staff; Subject: Review of Dis- view will be notified of the results of the re- charges Under Other Than Honorable Condi- view. The Veterans’ Administration will also tions Issued to Drug Users: be notified of the names of former service ‘‘Consistent with Department of Defense members whose discharges are recharacter- Directive 1300.11, October 23, 1970, and my ized.’’ memorandum of July 7, 1971, concerning rehabilitation and treatment of drug users, ad- APPENDIX B TO PART 724—OATH OR AF- ministrative discharges under other than FIRMATION TO BE ADMINISTERED TO honorable conditions issued solely on the DISCHARGE REVIEW BOARD MEM- basis of personal use of drugs or possession of BERS drugs for the purpose of such use will be reviewed 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

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following oath or affirmation which shall (1) Inserting ‘‘or on the basis of an absence continue in effect throughout service with without authority from active duty for a the Board. continuous period of at least one hundred and eighty days if such person was dis- Oath/Affirmation charged under conditions other than honor- I, llllll, do swear or affirm that I able unless such person demonstrates to the will faithfully and impartially perform all satisfaction of the Administrator that there the duties incumbent upon me as a member are compelling circumstances to warrant of the Naval Discharge Review Board; that I such prolonged unauthorized absence.’’ after will fully and objectively inquire into and ‘‘deserter,’’ in subsection (a), and by inserting examine all cases coming before me; that I a coma and ‘‘notwithstanding any action sub- will, without regard to the status of the indi- sequent to the date of such discharge by a vidual in any case, render my individual board established pursuant to section 1553 of judgment according to the facts, my con- title 10’’ before the period at the end of such science and the law and regulations applica- subsection; and ble to review of naval discharges, so help me (2) Adding at the end of such section the God. following new subsection: ‘‘(e)(1) Notwithstanding any other provision APPENDIX C TO PART 724—SAMPLES OF of law, (A) no benefits under laws adminis- FORMATS EMPLOYED BY THE NAVAL tered by the Veterans’ Administration shall DISCHARGE REVIEW BOARD be provided, as a result of a change in or new issuance of a discharge under section 1553 of title 10, except upon a case-by-case review by Attach- Form Title ment the board of review concerned, subject to review by the Secretary concerned, under such 1 Letter ...... En Block Notification of Decision to Commander, Naval Military Per- section, of all the evidence and factors in sonnel Command (No Change). each case under published uniform standard 2 ...... do ...... En Block Notification of Decision to (which shall be historically consistent with Commander, Naval Military Per- criteria for determining honorable service sonnel Command (Change). and shall not include any criterion for auto- 3 ...... do ...... En Block Notification of Decision to matically granting or denying such change Commandant, Marine Corps (No or issuance) and procedures generally appli- Change). 4 ...... do ...... En Block Notification of Decision to cable to all persons administratively dis- Commandant, Marine Corps charged or released from active military, (Change). naval, or air service under other than honorable conditons: and (B) any such person shall NOTE: The Forms appearing in appendix C be afforded an opportunity to apply for such are not carried in the Code of Federal Regu- review under such section 1553 for a period of lations. time terminating not less than one year after the date on which such uniform stand- APPENDIX D TO PART 724—VETERANS’ ards and procedures are promulgated and BENEFITS published. ‘‘(2) Notwithstanding any other provision of 91 Stat. 1106 law— Pub. L. 95–126, Oct. 8, 1977 ‘‘(A) No person discharged or released from 95th Congress active military, naval, or air service under other than honorable conditions who has An Act been awarded a general or honorable dis- To deny entitlement to veterans’ benefits charge under revised standards for the re- to certain persons who would otherwise be- view of discharges, (i) as implemented by the come so entitled solely by virtue of the ad- President’s directive of January 19, 1977, ini- ministrative upgrading under temporarily tiating further action with respect to the revised standards of other than honorable President’s Proclamation 4313 of September discharges from service during the Vietnam 16, 1974, (ii) as implemented on or after April era; to require case-by-case review under 5, 1977, under the Department of Defense’s uniform, historically consistent, generally special discharge review program, or (iii) as appli cable standards and procedures prior to implemented subsequent to April 5, 1977, and the award of veterans’ benefits to persons ad- not made applicable to all persons adminis- ministratively discharged under other than tratively discharged or released from active honorable conditions from active military, military, naval, or air service under other naval, or air service; and for other purposes. than honorable conditions, shall be entitled Be it enacted by the Senate and the House to benefits under laws administered by the of Representatives of the United States of Veterans’ Administration except upon a de- America in Congress assembled, That (a) sec- termination, based on a case-by-case review, tion 3103 of Title 38, United States Code, is under standards (meeting the requirements amended by— of paragraph (1) of this subsection) applied

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by the board of review concerned under sec- Administration only through the action of a tion 1553 of title 10, subject to review by the board for the correction of military records Secretary concerned, that such person would under section 1552 of such title 10 or the ac- be awarded an upgraded discharged under tion of the Administrator of Veterans’ Af- such standards; fairs under section 3103 of such title 38, and ‘‘(B) Such determination shall be made by (B) of the procedures for making application such board, (i) on an expedited basis after no- to such section 1552 board for such purpose tification by the Veterans’ Administration and to the Administrator of Veterans’ Af- to the Secretary concerned that such person fairs for such purpose (including the right to has received, is in receipt of, or has applied proceed concurrently under such sections for such benefits or after a written request is 3103, 1552 and 1553). made by such person or such determination, Section 2. Notwithstanding any other pro- (ii) on its own initiative within one year vision of law, the Administrator of Veterans’ after the date of enactment of this paragraph Affairs shall provide the type of health care in any case where a general or honorable dis- and related benefits authorized to be pro- charge has been awarded on or prior to the vided under chapter 17 of title 38, United date of enactment of this paragraph under States Code, for any disability incurred or revised standards referred to in clause (A) (i), aggravated during active military, naval, or (ii), or (iii) of this paragraph, or (iii) on its air service in line of duty by a person other own initiative at the time a general or hon- than a person barred from receiving benefits orable discharge is so awarded in any case by section 3103(a) of such title, but shall not where a general or honorable discharge is provide such health care and related benefits awarded after such enactment date. pursuant to this section for any disability ‘‘If such board makes a preliminary deter- incurred or aggravated during a period of mination that such person would not have service from which such person was dis- been awarded an upgraded discharge under charged by reason of a bad conduct dis- standards meeting the requirements of para- charge. graph (1) of this subsection, such personal Section 3. Paragraph (18) of section 101 of shall be entitled to an appearance before the Title 38, United States Code, is amended to board, as provided for in section 1553(c) of read as follows: title 10, prior to a final determination on ‘‘(18) The term ‘discharge or release’ in- such question and shall be given written no- cludes, (A) retirement from the active mili- tice by the board of such preliminary deter- tary, naval, or air service, and (B) the satis- mination and of his or her right to such ap- factory completion of the period of active pearance. The Administrator shall, as soon military, naval, or air service for which a as administratively feasible, notify the ap- person was obligated at the time of entry propriate board of review of the receipt of into such service in the case of a person who, benefits under laws administered by the Vet- due to enlistment or reenlistment, was not erans’ Administration, or the application for awarded a discharge or release from such pe- such benefits, by any person awarded an up- riod of service at the time of such comple- graded discharge under revised standards re- tion thereof and who, at such time, would ferred to in clause (A) (i), (ii), or (iii) of this otherwise have been eligible for the award of paragraph with respect to whom a favorable a discharge or release under conditions other determination has not been made under this than dishonorable.’’ paragraph.’’. Section 4. In promulgating, or making any (b)(1) The Secretary of Defense shall fully revisions of or amendments to, regulations inform each person awarded a general or governing the standards and procedures by honorable discharge under revised standards which the Veterans’ Administration deter- for the review of discharges referred to in mines whether a person was discharged or re- section 3103(e)(2)(A) (i), (ii), or (iii) of title 38, leased from active military, naval, or air United States Code, as added by subsection service under conditions other than dishon- (a)(2) of this section of his or her right to ob- orable, the Administrator of Veterans’ Af- tain an expedited determination under sec- fairs shall, in keeping with the spirit and in- tion 3103(e)(2)(B)(i) of such title and of the tent of this Act, not promulgate any such implications of the provisions of this Act for regulations or revise or amend any such reg- each such person. ulations for the purpose of, or having the ef- (2) Notwithstanding any other provision of fect of, (1) providing any unique or special law, the Secretary of Defense shall inform advantage to veterans awarded general or each person who applies to a board of review honorable discharges under revised standards under section 1553 of title 10, United States for the review of discharges described in sec- Code, and who appears to have been dis- tion 3103(e)(2)(A) (i), (ii), or (iii) of title 38, charged under circumstances which might United States Code, as added by section constitute a bar to benefits under section 1(a)(2) of this Act, or (2) otherwise making 3103(a), of title 38, United States Code, (A) any special distinction between such vet- that such person might possibly be adminis- erans and other veterans. tratively found to be entitled to benefits Section 5. This Act shall become effective under laws administered by the Veterans’ on the date of its enactment, except that—

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(1) Section 2 shall become effective on Oc- 725.8 Considerations in determining to tober 1, 1977, or on such enactment date, grant or deny a request. whichever is later; and 725.9 Action to grant or deny a request. (2) The amendments made by section 1(a) 725.10 Response to requests or demands in shall apply retroactively to deny benefits conflict with this instruction. under laws administered by the Veterans’ 725.11 Fees. Administration, except that, notwith- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 113, 5013; standing any other provision of law. 31 U.S.C. 9701 and 32 CFR part 97. (A) With respect to any person who, on such enactment date is receiving benefits SOURCE: 57 FR 2463, Jan. 22, 1992, unless under laws administered by the Veterans’ otherwise noted. Administration, (i) such benefits shall not be terminated under paragraph (2) of section § 725.1 Purpose. 3103(e) of title 38, United States Code, as This instruction implements 32 CFR added by section 1(a)(2) of this Act, until, (I) part 97 regarding the release of official the day on which a final determination not favorable to the person concerned is made on Department of the Navy (DON) infor- an expedited basis under paragraph (2) of mation and provision of testimony by such section 3103(e), (II) the day following DON personnel for litigation purposes, the expiration of ninety days after a prelimi- and prescribes conduct of DON per- nary determination not favorable to such sonnel in response to a litigation re- person is made under such paragraph, or (III) quest or demand. It restates the infor- the day following the expiration of one hun- mation contained in Secretary of the dred and eighty days after such enactment Navy Instruction 5820.8A of 27 August date, whichever day is the earliest, and (ii) 19911, and is intended to conform in all the United States shall not make any claim to recover the value of any benefits provided respects with the requirements of that to such person prior to such earliest day; instruction. (B) With respect to any person awarded a general or honorable discharge under revised § 725.2 Policy. standards for the review of discharges re- (a) It is DON policy that official fac- ferred to in clause (A) (i), (ii), or (iii) of such tual information, both testimonial and paragraph who has been provided any such documentary, should be made reason- benefits prior to such enactment date, the ably available for use in Federal United States shall not make any claim to recover the value of any benefits so provided; courts, state courts, foreign courts, and and other governmental proceedings (C) The amendments made by clause (1) of unless that information is classified, section 1(a) shall apply, (i) retroactively privileged, or otherwise protected from only to persons awarded general or honor- public disclosure. able discharges under such revised standards (b) DON personnel, as defined in and to persons who, prior to the date of en- § 725.4(b), however, shall not provide actment of this Act, had not attained gen- such official information, testimony, eral eligibility to such benefits by virtue of (I) a change in or new issuance of a discharge or documents, submit to interview, or under section 1553 of title 10, United States permit a view or visit, without the au- Code, or (II) any other provision of law, and thorization required by this part. (ii) prospectively (on and after such enact- (c) DON personnel shall not provide, ment date) to all other persons. with or without compensation, opinion or expert testimony concerning official PART 725—RELEASE OF OFFICIAL DON or Department of Defense (DOD) INFORMATION FOR LITIGATION information, subjects, personnel, or ac- PURPOSES AND TESTIMONY BY tivities, except on behalf of the United States or a party represented by the DEPARTMENT OF THE NAVY PER- Department of Justice, or with the SONNEL written special authorization required by this part. Sec. (d) Section 725.2(b) and (c) constitute 725.1 Purpose. a regulatory general order, applicable 725.2 Policy. 725.3 Authority to act. to all DON personnel individually, and 725.4 Definitions. 725.5 Applicability. 1 Copies may be obtained, if needed, from 725.6 Authority to determine and respond. the Naval Publications and Forms Direc- 725.7 Contents of a proper request or de- torate, Attn: Code 301, 5801 Tabor Avenue, mand. Philadelphia, PA 19120-5099.

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need no further implementation. A vio- shall be charged or waived for access lation of those provisions is punishable under the fee assessment consider- under the Uniform Code of Military ations set forth in § 725.11; and what, if Justice for military personnel and is any, claims of privilege, pursuant to the basis for appropriate administra- this instruction, may be invoked before tive procedures with respect to civilian any tribunal. employees. Moreover, violations of this instruction by DON personnel may, § 725.4 Definitions. under certain circumstances, be ac- (a) Determining authority. The cog- tionable under 18 U.S.C. 207. nizant DON or DOD official designated (e) Upon a showing by a requester of exceptional need or unique cir- to grant or deny a litigation request. cumstances, and that the anticipated In all cases in which the United States testimony will not be adverse to the in- is, or might reasonably become, a terests of the DON, DOD, or the United party, or in which expert testimony is States, the General Counsel of the requested, the Judge Advocate General Navy, the Judge Advocate General of or the General Counsel of the Navy, de- the Navy, or their respective delegates pending on the subject matter of the may, in their sole discretion, and pur- request, will act as determining au- suant to the guidance contained in this thority. In all other cases, the respon- instruction, grant such written special sibility to act as determining author- authorization for DON personnel to ap- ity has been delegated to all officers pear and testify as expert or opinion exercising general court-martial con- witnesses at no expense to the United vening authority, or to their subordi- States. nate commands, and to other commands and activities indicated in § 725.3 Authority to act. § 725.6. (a) The General Counsel of the Navy, (b) DON personnel. Active duty and the Judge Advocate General of the former military personnel of the naval Navy, and their respective delegates service including retirees; personnel of [hereafter ‘‘determining authorities’’ other DOD components serving with a described in § 725.4(a), shall respond to DON component; Naval Academy mid- litigation requests or demands for offi- shipmen; present and former civilian cial DOD information or testimony by employees of the DON including non- DON personnel as witnesses. appropriated fund activity employees; (b) If required by the scope of their non-U.S. nationals performing services respective delegations, determining au- overseas for the DON under provisions thorities’ responses may include: con- of status of forces agreements; and sultation and coordination with the other specific individuals or entities Department of Justice or the appro- hired through contractual agreements priate United States Attorney as re- by or on behalf of DON, or performing quired; referral of matters proprietary services under such agreements for to another DOD component to that DON (e.g., consultants, contractors and component; determination whether official information originated by the their employees and personnel). Navy may be released in litigation; and (c) Factual and expert or opinion testi- determination whether DOD personnel mony. DON policy favors disclosure of assigned to or affiliated with the Navy factual information if disclosure does may be interviewed, contacted, or used not violate the criteria stated in § 725.8. as witnesses concerning official DOD The distinction between factual mat- information or as expert or opinion ters, and expert or opinion matters witnesses. Following coordination with (where DON policy favors non-disclo- the appropriate commander, a response sure), is not always clear. The consid- may further include whether installa- erations set forth below pertain. tions, facilities, ships, or aircraft may (1) Naval personnel may merely be be visited or inspected; what, if any, percipient witnesses to an incident, in conditions will be imposed upon any re- which event their testimony would be lease, interview, contact, testimony, purely factual. On the other hand, they visit, or inspection; what, if any, fees may be involved with the matter only

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through an after-the-event investiga- sonably anticipated to involve, civil or tion (e.g., JAGMAN investigation). De- criminal litigation. scribing the manner in which they con- (e) Official information. All informa- ducted their investigation and asking tion of any kind, however stored, in the them to identify factual conclusions in custody and control of the DOD and its their report would likewise constitute components including the DON; relat- factual matters to which they might ing to information in the custody and testify. In contrast, asking them to control of DOD or its components; or adopt or reaffirm their findings of fact, acquired by DOD personnel or its com- opinions, and recommendations, or ponent personnel as part of their offi- asking them to form or express any cial duties or because of their official other opinion—particularly one based status within DOD or its components, upon matters submitted by counsel or while such personnel were employed by going to the ultimate issue of causa- or on behalf of the DOD or on active tion or liability—would clearly con- duty with the United States Armed stitute precluded testimony under the Forces (determining whether ‘‘official above policy. information’’ is sought, as opposed to (2) Naval personnel, by virtue of their non-DOD information, rests with the training, often form opinions because determining authority identified in they are required to do so in the course § 725.6, rather than the requester). of their duties. If their opinions are (f) Request or demand (legal process). formed prior to, or contemporaneously Subpoena, order, or other request by a with, the matter in issue, and are rou- federal, state, or foreign court of com- tinely required of them in the course of petent jurisdiction, by any administra- the proper performance of their profes- tive agency thereof, or by any party or sional duties, they constitute essen- other person (subject to the exceptions tially factual matters (i.e., the opinion stated in § 725.5) for production, disclo- they previously held). Opinions formed sure, or release of official DOD infor- after the event in question, including mation or for appearance, deposition, responses to hypothetical questions, or testimony of DON personnel as wit- generally constitute the sort of opinion nesses. or expert testimony which this instruction is intended to severely restrict. § 725.5 Applicability. (3) Characterization of expected tes- (a) This instruction applies to all timony by a requester as fact, opinion, present and former civilian and mili- or expert is not binding on the deter- tary personnel of the DON whether em- mining authority. When there is doubt ployed by, or assigned to, DON tempo- as to whether or not expert or opinion rarily or permanently. Affected per- (as opposed to factual) testimony is sonnel are defined more fully in being sought, advice may be obtained § 725.4(b). informally from, or the request for- (b) This instruction applies only to warded, to the Deputy Assistant Judge situations involving existing or reason- Advocate General (General Litigation) ably anticipated litigation, as defined or the Associate General Counsel (Liti- in § 725.4(d), when DOD information or gation) for resolution. witnesses are sought, whether or not (d) Litigation. All pretrial, trial, and the United States, the DOD, or its com- post-trial stages of all existing or rea- ponents are parties thereto. It does not sonably anticipated judicial or admin- apply to formal or informal requests istrative actions, hearings, investiga- for information in other situations. tions, or similar proceedings before ci- (c) This instruction provides guid- vilian courts, commissions, boards (in- ance only for DON operation and ac- cluding the Armed Services Board of tivities of its present and former per- Contract Appeals), or other tribunals, sonnel in responding to litigation re- foreign and domestic. This term in- quests. It is not intended to, does not, cludes responses to discovery requests, and may not be relied upon to, create depositions, and other pretrial pro- any right or benefit, substantive or ceedings, as well as responses to formal procedural, enforceable at law or eq- or informal requests by attorneys or uity against the United States, DOD, others in situations involving, or rea- or DON.

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(d) This instruction is not intended in whole or in part, on behalf of the to infringe upon or displace the respon- United States (e.g., Medical Care Re- sibilities committed to the Department covery Act claims, affirmative claims, of Justice in conducting litigation on or subpoenas issued by, or concurred in behalf of the United States. by, Government counsel when the (e) This instruction does not super- United States is a party), but the regu- sede or modify existing laws, DOD or lation does apply to an action brought DON regulations, directives, or instruc- under the qui tam provisions of the tions governing testimony of DON per- False Claims Act in which a private sonnel or release of official DOD or party brings an action in the name of DON information during grand jury the United States but in which the De- proceedings. partment of Justice either has not yet (f) This instruction does not control determined to intervene in the litiga- release of official information in re- tion or has declined to intervene; sponse to requests unrelated to litiga- (4) As part of the assistance required tion or under the Freedom of Informa- by the Defense Industrial Personnel Se- tion Act (FOIA), 5 U.S.C. 552, or the curity Clearance Review Program Privacy Act, 5 U.S.C. 552a. This in- under DOD Directive 5220.62; struction does not preclude treating (5) Release of copies of Manual of the any written request for DON records as Judge Advocate General (JAGMAN) in- a request under the FOIA or Privacy vestigations, to the next of kin (or Acts. Activities are encouraged to their representatives) of deceased or treat such requests for documents incompetent naval personnel; under the FOIA or the Privacy Act if (6) Release of information by DON they are invoked by the requestor ei- personnel to counsel retained on their ther explicitly or by fair implication. behalf for purposes of litigation, unless See 32 CFR 701.3(a), 701.10(a). Activities that information is classified, privi- are reminded that such treatment does leged, or otherwise protected from dis- not absolve them of the responsibility closure (in the latter event, compliance to respond in a timely fashion to legal with 32 CFR part 97 and this part is re- process. In any event, if the official in- quired); formation requested pertains to a liti- (7) Cases involving garnishment or- gation matter which the United States ders for child support and/or alimony. is a present or potential party, the re- The release of official information in lease authority should notify the dele- these cases is governed by 5 CFR 581 gate of the General Counsel or the and SECNAVINST 7200.163, or; Judge Advocate General, under § 725.6. (g) This part does not apply to re- (8) Release of information to Federal, lease of official information or testi- state, and local prosecuting and law mony by DON personnel in the fol- enforcement authorities, in conjunc- lowing situations: tion with an investigation conducted (1) Before courts-martial convened by by a DOD component or DON criminal any DOD component, or in administra- investigative organization. tive proceedings conducted by, or on (h) This part does not preclude offi- behalf of, such component; cial comment on matters in litigation (2) Under administrative proceedings in appropriate cases. conducted by, or on behalf of, the (i) The DOD General Counsel may no- Equal Employment Opportunity Com- tify DOD components that DOD will as- mission (EEOC) or the Merit Systems sume primary responsibility for coordi- Protection Board (MSPB), the Federal nating all litigation requests for de- Labor Relations Authority, the Federal mands for official DOD information or Services Impasse Panel, or under a ne- testimony of DOD personnel in litiga- gotiated grievance procedure under a tion involving terrorism, espionage, collective bargaining agreement to nuclear weapons, and intelligence which the Government is a party; sources or means. Accordingly, deter- (3) In response to requests by Federal mining officials who receive requests Government counsel, or counsel representing the interests of the Federal 2 See footnote 1 to § 725.1. Government, in litigation conducted, 3 See footnote 1 to § 725.1.

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pertaining to such litigation shall no- activity will forward appropriate por- tify the Associate General Counsel tions of the request or demand to the (Litigation) or the Deputy Assistant DOD component originating the infor- Judge Advocate General (International mation, to the components where the Law or General Litigation) who shall personnel are assigned, or to the com- consult and coordinate with DOD Gen- ponents where the personnel were for- eral Counsel prior to any response to merly assigned, for action under 32 such requests. CFR part 97. The forwarding DON ac- (j) Relationship with Federal Rules of tivity will also notify the requester Procedure. The requirements imposed and court (if appropriate) or other au- by this instruction are intended, thority of its transfer of the request or among other things, to provide ade- demand. quate notice to DON regarding the (c) Litigation matters to which the scope of proposed discovery. This will United States is, or might reasonably be- assure that certain DON information, come, a party. Examples of such in- which properly should be withheld, is stances include suits under the Federal not inadvertently released in response Tort Claims Act, Freedom of Informa- to a litigation request or demand, in- tion Act, Medical Care Recovery Act, cluding a subpoena or other request for Tucker Act, and suits against Govern- discovery issued under Federal rules of ment contractors where the contractor procedure. When the United States is a may interplead the United States or party to Federal litigation and the seek indemnification from the United party opponent uses discovery methods States for any judgment paid, e.g., (e.g., request for interrogatories and aviation contractors or asbestos mat- admissions, depositions) set forth in ters. Generally, a suit in which the Federal rules of procedure, the Judge plaintiff is representing the interests of Advocate General or General Counsel, the United States under the Medical in consultation with representatives of Care Recovery Act is not a litigation the Department of Justice or the cog- matter to which the United States is, nizant United States Attorney, may or might reasonably become, a party. 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, article 0331 (1990), shall be vidual to whom the request or demand referred to the Deputy Assistant Judge is made will immediately notify the Advocate General for General Litiga- cognizant DON official designated in tion, Office of the Navy Judge Advo- § 725.6(c) and (d), who will determine cate General (Washington Navy Yard), availability and respond to the request 1322 Patterson Avenue, SE., Suite 3000, or demand. Washington, DC, 20374-5066, who will re- (b) Matters proprietary to another DOD spond for the Judge Advocate General component. If a DON activity receives a or transmit the request to the appro- litigation request or demand for offi- priate Deputy Assistant Judge Advo- cial information originated by another cate General for response. DOD component or for non-DON per- (2) Litigation requests regarding sonnel presently or formerly assigned matters assigned to the General Coun- to another DOD component, the DON sel of the Navy under Navy Regs., art.

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0327 (1990)5, shall be referred to the cog- rine Corps, or to other Marine Corps nizant Command Counsel under, and commands located in the Washington, subject to, limitations set forth in DC, area, it shall be forwarded to the § 725.6(d)(2). That Command Counsel Commandant of the Marine Corps may either respond or refer the matter (JAR), Headquarters, U.S. Marine for action to another office. Requests Corps, Washington, DC 20380-0001, involving asbestos litigation shall be which will respond for the Judge Advo- referred to the Office of Counsel, Naval cate General under criteria set forth in Sea Systems Command Headquarters, § 725.8. Personnel and Labor Law Section (C) Nothing here shall prevent a de- (Code 00LD), Washington, DC 20362-5101. termining authority from referring re- Matters not clearly within the purview quests or demands to another deter- of a particular command counsel shall mining authority better suited under be referred to Associate General Coun- the circumstances to determine the sel (Litigation), who may either re- matter and respond, but the requester spond or refer the matter for action to shall be notified of the referral. Fur- another office. ther, each determining authority speci- (3) Matters involving the Armed fied in this paragraph may further del- Services Board of Contract Appeals egate his or her decisional authority to shall be forwarded to these respective a principal staff member, staff judge counsel except where the determina- advocate, or legal advisor. tion may involve the assertion of the (D) In the alternative, the requester deliberative process privilege before may forward the request to the Deputy that Board. In such an event, the mat- Assistant Judge Advocate General ter shall be forwarded for determina- (General Litigation), who may refer tion to the Associate General Counsel the matter to another determining au- (Litigation). thority for response, and so notify the (d) Litigation matters in which the requester. United States is not, and is reasonably (ii) Visits and views. A request to visit not expected to become, a party—(1) Mat- a DON activity, ship, or unit, or to in- ters within the cognizance of the Judge spect material or spaces located there Advocate General—(i) Fact witnesses. Re- will be forwarded to one of the authori- quests to interview, depose, or obtain ties stated in § 725.6(d)(1)(i), who will testimony of any present or former respond on behalf of the Judge Advo- DON personnel as defined in § 725.4(b) cate General. Action taken by that au- about purely factual matters shall be thority will be coordinated with the forwarded to the Navy or Marine Corps commanding officer of the activity, officer exercising general court-martial ship, or unit at issue, or with his or her jurisdiction (OEGCMJ) in whose chain staff judge advocate (if applicable). The of command the prospective witness or military mission of the unit shall nor- requested documents lie. That deter- mally take precedence over any visit mining authority will respond for the or view. The commanding officer may Judge Advocate General under criteria independently prescribe reasonable set forth in § 725.8. conditions as to time, place, and cir- (A) If the request pertains to per- cumstances to protect against com- sonnel assigned to the Office of the promise of classified or privileged ma- Chief of Naval Operations, the Office of terial, intrusion into restricted spaces, the Vice Chief of Naval Operations, or and unauthorized photography. an Echelon 2 command located in the (iii) Documents. 10 U.S.C. 7861 pro- Washington, DC, area, it shall be for- vides that the Secretary of the Navy warded to that office which will like- has custody and charge of all DON wise respond for the Judge Advocate books, records, and property. Under General under the criteria set forth in DOD Directive 5530.16, the Secretary of § 725.8. the Navy’s sole delegate for service of (B) If a request pertains to Marine process is the General Counsel of the Corps personnel assigned to Head- Navy. See 32 CFR 257.5(c). All process quarters Battalion, Headquarters Ma- for such documents shall be served

5 See footnote 1 to § 725.1. 6 See footnote 1 to § 725.1.

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upon the General Counsel at the De- to the Office of Counsel, Naval Sea Sys- partment of the Navy, Washington, DC, tems Command Headquarters, Per- 20350-1000, who will refer the matter to sonnel and Labor Law Section (Code the proper delegate for action. Matters 00LD), Washington, DC 20362-5101. referred to the Judge Advocate General (3) Matters not clearly within the cog- will normally be provided to the deter- nizance of either the Judge Advocate Gen- mining authorities described in eral or the General Counsel. Such mat- § 725.6(c) and (d). That authority will ters may be sent to the Deputy Assist- respond per criteria in § 725.8. Process ant Judge Advocate General (General not properly served on the General Litigation) or the Associate General Counsel is insufficient to constitute a Counsel (Litigation), who will, in con- legal demand and shall be processed as sultation with the other, determine the a request by counsel. Requests for doc- appropriate authority to respond to the uments maintained by the National request. Personnel Records Center will be determined by the official provided in [57 FR 2463, Jan. 22, 1992, as amended at 69 FR 20541, Apr. 16, 2004] § 725.8(b)(2)(iii). (iv) Expert or opinion requests. Any re- § 725.7 Contents of a proper request or quest for expert or opinion consulta- demand. tions, interviews, depositions, or testimony will be referred to the Deputy (a) Routine requests. If official infor- Assistant Judge Advocate General mation is sought, through testimony (General Litigation) who will respond or otherwise, a detailed written request for the Judge Advocate General, or must be submitted to the appropriate transmit the request to the appropriate determining authority far enough in DAJAG for response. Matters not advance to assure an informed and clearly within the purview of a par- timely evaluation of the request, and ticular Deputy Assistant Judge Advo- prevention of adverse effects on the cate General will be retained by the mission of the command or activity Deputy Assistant Judge Advocate Gen- that must respond. The determining eral (General Litigation), who may ei- authority shall decide whether suffi- ther respond or refer the matter to an- cient information has been provided by other determining authority for re- the requester. Absent independent in- sponse. formation, the following data is nec- (2) Matters within the cognizance of the essary to assess a request. General Counsel of the Navy—(i) Matters (1) Identification of parties, their coun- not involving issues of Navy policy. Such sel and the nature of the litigation. (i) matters shall be forwarded for deter- Caption of case, docket number, court. mination to the respective counsel for (ii) Name, address, and telephone Naval Sea Systems Command, Naval number of all counsel. Air Systems Command, Naval Supply (iii) The date and time on which the Systems Command, Naval Facilities documents, information, or testimony Engineering Command, Space and sought must be produced; the requested Naval Warfare Command, Office of the location for production; and, if applica- Navy Comptroller, Commandant of the ble, the estimated length of time that Marine Corps, Office of the Chief of attendance of the DON personnel will Naval Research, Military Sealift Com- be required. mand, Office of Civilian Personnel Pol- (2) Identification of information or doc- icy, or to the Assistant General Coun- uments requested. (i) A description, in as sel (Acquisition), depending upon who much detail as possible, of the docu- has cognizance over the information or ments, information, or testimony personnel at issue. sought, including the current military (ii) Matters involving issues of Navy service, status (active, separated, re- policy. Such matters shall be forwarded tired), social security number, if for determination to the General Coun- known, of the subject of the requested sel of the Navy via the Associate Gen- pay, medical, or service records; eral Counsel (Litigation). (ii) The location of the records, in- (iii) Matters involving asbestos litiga- cluding the name, address, and tele- tion. Such matters shall be forwarded phone number, if known, of the person

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from whom the documents, informa- (5) In the case of former DON per- tion, or testimony is sought; and sonnel, a brief description of the length (iii) A statement of whether factual, and nature of their duties while in DON opinion, or expert testimony is re- employment, and a statement of quested (see §§ 725.4(c) and whether such duties involved, directly 725.8(b)(3)(ii)). or indirectly, the information or mat- (3) Description of why the information ters as to which the person will testify; is needed. (i) A brief summary of the (6) An agreement to provide free of facts of the case and the present pos- charge to any witness a signed copy of ture of the case. any written statement he or she may (ii) A statement of the relevance of make, or, in the case of an oral deposi- the matters sought to the proceedings tion, a copy of that deposition tran- at issue. script, if taken by a stenographer, or a video tape copy, if taken solely by (iii) If expert or opinion testimony is video tape, if not prohibited by applica- sought, an explanation of why excep- ble rules of court; tional need or unique circumstances (7) An agreement that if the local exist justifying such testimony, includ- rules of procedure controlling the liti- ing why it is not reasonably available gation so provide, the witness will be from any other source. given an opportunity to read, sign, and (b) Additional considerations. The cir- correct the deposition at no cost to the cumstances surrounding the under- witness or the Government; lying litigation, including whether the (8) A statement of understanding United States is a party, and the na- that the United States reserves the ture and expense of the requests made right to have a representative present by a party may require additional in- at any interview or deposition; and formation before a determination can (9) A statement that counsel for be made. Providing the following infor- other parties to the case will be pro- mation or stipulations in the original vided with a copy of all correspondence request may expedite review and elimi- originated by the determining author- nate the need for additional cor- ity so they may have the opportunity respondence with the determining au- to submit any related litigation re- thority. quests and participate in any dis- (1) A statement of the requester’s covery. willingness to pay in advance all rea- (c) Response to deficient requests. A sonable expenses and costs of searching letter request that is deficient in pro- for and producing documents, informa- viding necessary information may be tion, or personnel, including travel ex- returned to the requester by the deter- penses and accommodations (if applica- mining authority with an explanation ble); of the deficiencies and a statement (2) In cases in which deposition testi- that no further action will be taken mony is sought, a statement of wheth- until they are corrected. If a subpoena er attendance at trial or later deposi- has been received for official information testimony is anticipated and re- tion, counsel should promptly deter- quested. A single deposition normally mine the appropriate action to take in should suffice; response to the subpoena. See § 725.9(g). (3) An agreement to notify the deter- (d) Emergency requests. Written re- mining authority at least 10 working quests are generally required by 32 days in advance of all interviews, depo- CFR part 97. sitions, or testimony. Additional time (1) The determining authority, iden- for notification may be required where tified in § 725.6, has discretion to waive the witness is a DON health care pro- that requirement in the event of a bona vider or where the witness is located fide emergency, under conditions set overseas; 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

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with the requirements of a proper writ- order, regulation, directive, instruc- ten request would result in the effec- tion, or notice; tive denial of the request and cause an (5) Whether disclosure, in the absence injustice in the outcome of the litiga- of a court order or written consent, tion for which the information is would violate 5 U.S.C. 552, 552a; sought. No requester has a right to (6) Whether disclosure, including re- make an oral request and receive a de- lease in camera, is appropriate or nec- termination. Whether to permit such essary under the relevant substantive an exceptional procedure is a decision law concerning privilege (e.g., attor- within the sole discretion of the deter- ney-client, attorney work-product, or mining authority, unless overruled by physician-patient in the case of civil- the General Counsel or the Judge Ad- ian personnel); vocate General, as appropriate. (7) Whether disclosure, except when (2) If the determining authority con- in camera (i.e., before the judge alone) cludes that the request, or any portion and necessary to assert a claim of of it, meets the emergency test, he or privilege, would reveal information she will require the requester to agree properly classified under the DOD In- to the conditions set forth in § 725.7(a). formation Security Program under The determining authority will then DOD 5200.1-R7, withholding of unclassi- orally advise the requester of the de- fied technical data from public disclo- termination, and seek a written con- sure following OPNAVINST 5510.161; firmation of the oral request. There- privileged Naval Aviation Safety Pro- after, the determining authority will gram information (OPNAVINST 3750.6Q make a written record of the disposi- (NOTAL))8, or other matters exempt tion of the oral request including the from unrestricted disclosure under 5 grant or denial, circumstances requir- U.S.C. 552, 552a; ing the procedure, and conditions to (8) Whether disclosure would unduly which the requester agreed. interfere with ongoing law enforcement (3) The emergency procedure should proceedings, violate constitutional not be utilized where the requester re- rights, reveal the identity of an intel- fuses to agree to the appropriate condi- ligence source or source of confidential tions set forth in § 725.7(a) or indicates information, conflict with U.S. obliga- unwillingness to abide by the limits of tions under international agreement, the oral grant, partial grant, or denial. or be otherwise inappropriate under the circumstances; § 725.8 Considerations in determining (9) Whether attendance of the re- to grant or deny a request. quested witness at deposition or trial (a) General considerations. In deciding will unduly interfere with the military whether to authorize release of official mission of the command; and information, or the testimony of DON (10) Whether, in a criminal case, re- personnel concerning official informa- quiring disclosure by a defendant of de- tion (hereafter referred to as ‘‘the dis- tailed information about the relevance closure’’ under a request conforming of documents or testimony as a condi- with the requirements of § 725.7, the de- tion for release would conflict with the termining authority shall consider the defendant’s constitutional rights. following factors: (b) Specific considerations—(1) Docu- (1) The DON policy regarding disclo- ments, interviews, depositions, testimony, sure in § 725.2; and views (where the United States is, or (2) Whether the request or demand is may become, a party). All requests per- unduly burdensome or otherwise inap- taining to such matters shall be for- propriate under applicable court rules; warded to the Judge Advocate General (3) Whether disclosure, including re- or the General Counsel, as appropriate lease in camera (i.e., to the judge or under § 725.6(c). court alone), is appropriate under pro- (2) Documents (where the United States cedural rules governing the case or is not, and is reasonably not expected to matter in which the request or demand become a party)—(i) Unclassified Navy arose; (4) Whether disclosure would violate 7 See footnote 1 to § 725.1. or conflict with a statute, executive 8 See footnote 1 to § 725.1.

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and Marine Corps records. Where parties (ii) Classified Navy and Marine Corps or potential parties desire unclassified records. Any consideration of release of naval records in connection with a liti- classified information for litigation gation matter, the subpoena duces purposes, within the scope of this in- tecum or court order will be served, struction, must be coordinated within under 32 CFR 257.5(c), upon the General the Office of the Chief of Naval Oper- Counsel of the Navy, along with a writ- ations (OP-09N) per OPNAVINST ten request complying with § 725.7. 5510.1H.11 (A) If the determining authority to (iii) Records in the custody of the Na- whom the matter is referred deter- tional Personnel Records Center. Court mines to comply with the order or sub- orders or subpoenas duces tecum de- poena, compliance will be effected by manding information from, or produc- transmitting certified copies of records tion of, service or medical records of to the clerk of the court from which former Navy and Marine Corps per- process issued. If, because of an un- sonnel in the custody of the National usual circumstance, an original record Personnel Records Center will be must be produced by a naval custodian, served upon the Director, National Per- it will not be removed from the cus- sonnel Records Center, 9700 Page Bou- tody of the person producing it, but levard, St. Louis, MO 63132. If records copies may be placed in evidence. responsive to the request are identified (B) Upon written request of one or and maintained at the National Per- more parties in interest or their re- sonnel Records Center, that Center spective attorneys, records which shall make appropriate certified (au- would be produced in response to a thenticated) copies of the information court order signed by a judge as set requested. These copies will then be forth above may be furnished without a forwarded, along with the request, in court order, but only upon a request the case of Navy personnel, to Chief, complying with § 725.7 and only when Bureau of Naval Personnel (Pers-06), such records are not in a ‘‘system of Washington, DC 20370-5000, or his dele- records’’ as defined by the Privacy Act gate, who will respond. In the case of (5 U.S.C. 552a). In determining whether Marine Corps personnel, the copies and a record not contained in a ‘‘system of request will be sent to the Com- records’’ will be furnished in response mandant of the Marine Corps (MMRB- to a Freedom of Information Act 10), Quantico, VA 22134-0001, who will (FOIA) request, SECNAVINST 5720.42E9 respond. Those requests that do not controls. constitute legal demands will be re- (C) Generally, a record in a Privacy fused by the Director, National Per- Act ‘‘system of records’’ may not be re- sonnel Records Center, and written leased under a litigation request except guidance provided to the requester. with the written consent of the person (iv) Medical and other records of civil- to whom the record pertains or in re- ian employees. Production of medical sponse to a court order signed by a certificates or other medical reports judge. See SECNAVINST 5211.5C10 and 5 concerning civilian employees is con- U.S.C. 552, 552a for further guidance. trolled by Federal Personnel Manual, (D) Whenever compliance with a chapter 294 and chapter 339.1-4.12 court order or subpoena duces tecum Records of civilian employees, other for production of DON records is denied than medical records, may be produced for any reason, the subpoena or court upon receipt of a court order and a re- order and complete copies of the request complying with § 725.7, provided quested records will be forwarded to no classified or for official use only in- the appropriate Deputy Assistant formation, such as loyalty or security Judge Advocate General (General Liti- records, are involved. Disclosure of gation) or the Associate General Coun- records relating to compensation bene- sel (Litigation) for action, and the par- fits administered by the Office of ties to the suit notified in accordance Workers’ Compensation Programs of with this part. the Department of Labor are governed

9 See footnote 1 to § 725.1. 11 See footnote 1 to § 725.1. 10 See footnote 1 to § 725.1. 12 See footnote 1 to § 725.1.

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by Secretary of the Navy Instruction when release of records is otherwise au- 5211.5C (Privacy Act implementation) thorized, and records contained in a and Secretary of the Navy Instruction ‘‘system of records,’’ are released, the 5720.42E (Freedom of Information Act releasing official will consult Sec- implementation), as appropriate. retary of the Navy Instruction 5211.5C Where information is furnished per this regarding disclosure accounting re- subparagraph in response to a court quirements. order and proper request, certified cop- (viii) Pay records. Official pay records ies rather than originals should be fur- of active-duty, reserve, retired, or nished. Where original records must be former Navy members should be reproduced because of unusual cir- quested from Director, Defense Finance cumstances, they may not be removed and Accounting Service (DFAS), Cleve- from the custody of the official pro- land Center, Anthony J. Celebrezze ducing them, but copies may be placed Federal Building, Cleveland, OH 44199- on the record. 2055. Official pay records of active- (v) JAGMAN investigations (other than duty, reserve, retired, or former Ma- to next of kin). The Deputy Assistant rines should be requested from Direc- Judge Advocate General having cog- tor, Defense Finance and Accounting nizance over the records at issue for Service, Kansas City Center (Code G), litigation or prospective litigation pur- Kansas City, MO 64197-0001. poses may release the records if a com- (3) Interviews, depositions, and testi- plete release will result. The Assistant mony (where the United States is not, and Judge Advocate General (Civil Law) is reasonably not expected to become, a will make determinations concerning party)—(i) Factual matters. DON policy the release of the records specified in favors disclosure of factual matters this subparagraph if a release of less when disclosure does not violate the than the complete requested record criteria stated in this section. Distin- will result. A release to next of kin of guishing between factual matters and incompetent or deceased DON per- expert or opinion matters (where DON sonnel or their representatives is ex- policy favors non-disclosure) requires empt from these requirements and this careful analysis. Opinion matters are part. defined at § 725.4(c). (vi) Affirmative claims files. Affirma- (ii) Expert, opinion, or policy matters. tive claims files (including Medical Such matters are to be determined, Care Recovery Act files), except to the under the delegation in § 725.6, by the extent they contain copies of JAGMAN cognizant Deputy Assistant Judge Ad- investigations prepared under the Man- vocate General or by General Counsel. ual of the Judge Advocate General, or General considerations to identify ex- classified or privileged information, pert or opinion testimony are in may be released by the commanding of- § 725.4(c). DON personnel shall not pro- ficer of the Naval Legal Service Office vide, with or without compensation, having cognizance over the claim at opinion or expert testimony concerning issue, without compliance with this in- official information, subjects, or ac- struction, to: insurance companies to tivities, except on behalf of the United support claims; to civilian attorneys States or a party represented by the representing injured service persons, Department of Justice. Upon a showing their dependents, and the Govern- by the requester of exceptional need or ment’s interests; and to other DOD unique circumstances, and that the an- components. When a request for pro- ticipated testimony will not be adverse duction involves material related to to the interests of the DOD or the claims in favor of the Government, ei- United States, the appropriate DON of- ther the cognizant Command Counsel ficial designated in § 725.6, may grant, or the Naval Legal Service Office hav- in writing, special authorization for ing territorial responsibility for the DON personnel to appear and testify at area should be notified. no expense to the United States. In de- (vii) Accounting for disclosures from termining whether exceptional need or ‘‘systems of records.’’ When compliance unique circumstances exist, the deter- with a litigation request or demand for mining official should consider wheth- production of records is appropriate, or er such expert or opinion testimony is

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available to the requester from any official DOD information. However, other source. The burden of dem- this part is not intended to place un- onstrating such unavailability, if any, reasonable restraints upon the post- is solely upon the requester. employment conduct of such personnel. (iii) Visits and views (where the United Accordingly, requests for expert or States is not, and is reasonably not ex- opinion testimony by such personnel pected to become, a party). Such disclo- will normally be granted unless that sures are normally factual in nature testimony would constitute a violation and should not be accompanied by of the U.S. Code (e.g., 18 U.S.C. 201 et interviews of personnel unless sepa- seq.), conflict with pertinent regula- rately requested and granted. The au- tions (e.g., Secretary of the Navy In- thority of the commanding officer of struction 5370.2H), or disclose properly the activity, ship, or unit at issue is classified or privileged information. not limited by this part. Accordingly, (c) A determination to grant or deny he or she may prescribe appropriate should be made as expeditiously as pos- conditions as to time, place, and cir- sible to provide the requester and the cumstances (including proper restric- court with the matter at issue or with tions on photography). a statement of the reasons for denial. (iv) Non-DOD information. A request The decisional period should not ex- for disclosure under this part, particu- ceed 10 working days from receipt of a larly through the testimony of a wit- complete request complying with the ness, may involve both official infor- requirements of § 725.7, absent excep- mation and non-DOD information (e.g., tional or particularly difficult cir- in the case of a person who has ac- cumstances. The requester should also quired additional and separate knowl- be informed promptly of the referral of edge or expertise wholly apart from any portion of the request to another Government employment). Deter- authority for determination. mining whether or not official informa- (d) Except as provided in § 725.7(d), a tion is at issue is within the purview of determination to grant or deny shall be the determining authority, not the rein writing. quester. A requester’s contention that (e) The determination letter should only non-DOD information is at issue respond solely to the specific disclo- 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 re- warded to the cognizant Deputy Assist- quest. ant Judge Advocate General or the As- (a) The process of determining sociate General Counsel (Litigation), whether to grant or deny a request is as appropriate. Such notification is not an adversary proceeding. This part likewise appropriate when the litiga- provides guidance for the operation of tion request has been treated under 5 DON only and is not intended to, does U.S.C. 552, 552a and § 725.5(f). Tele- not, and may not be relied upon to, cre- phonic notification is particularly ap- ate any right or benefit, substantive or propriate where a judicial challenge or procedural, enforceable at law against contempt action is anticipated. the United States, DOD, or DON. (g) In cases in which a subpoena has (b) 32 CFR part 97 and this part apply been received and the requester refuses to testimony by former naval per- to pay fees or otherwise comply with sonnel and former civilian employees the guidance and requirements imposed of DON. A proper request must be by this part, or if the determining au- made, under § 725.7, to obtain testi- thority declines to make some or all of mony by former personnel regarding the subpoenaed information available,

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or if the determining authority has had quester, the court, or other authority insufficient time to complete its deter- that the request or demand is being re- mination as to how to respond to the viewed in accordance with this part request, the determining authority and seek a stay of the request or de- must promptly notify the General Liti- mand pending a final determination. gation Division of the Office of the (c) If a court of competent jurisdic- Judge Advocate General or the Navy tion or other appropriate authority de- Litigation Office of the Office of the clines to stay the effect of the request General Counsel, which offices will de- or demand in response to action taken termine, in consultation with the De- under § 725.10(b), or if such court or partment of Justice, the appropriate other authority orders that the request response to be made to the tribunal or demand must be complied with, not- which issued the subpoena. Because the withstanding the final decision of the Federal Rules of Civil Procedure re- appropriate DON official, the DON per- quire that some objections to sub- sonnel upon whom the request or de- poenas must be made either within 10 mand was made will, if time permits, days of service of the subpoena or on or notify the determining authority of before the time for compliance, which- such ruling or order. That authority ever first occurs, and because this will will notify the Deputy Assistant Judge require consultation with the Depart- Advocate General or the Associate ment of Justice, timely notice is essen- General Counsel (Litigation) having tial. cognizance over the matter. After due consultation and coordination with the § 725.10 Response to requests or de- Department of Justice, as required by mands in conflict with this instruc- the Manual of the Judge Advocate Gen- tion. eral, that official will determine (a) Except as otherwise provided in whether the individual is required to this paragraph, DON personnel, includ- comply with the request or demand and ing former military personnel and ci- will notify the requester, the court, or vilian employees, shall not produce, other authority accordingly. The wit- disclose, release, comment upon, or ness shall, if directed by the appro- 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.

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Travel for active duty members sum- agency of the Federal Government is moned as witnesses is governed by not a party. The requesting party is re- Joint Travel Regulations, Vol. I, Chap. sponsible for travel arrangements and 7, pt. E. and Navy Travel Instructions, funding. Government funding of travel Chap. 6, pt. E.13 Travel for civilian per- and per diem for civilian employees is sonnel summoned as witnesses is gov- authorized. erned by the Joint Travel Regulations, (b) Special circumstances—(1) Refusal Vol. II, Chap. 4, pt. E.14 to pay fees. In cases in which a sub- (1) When DON is a party. No fees nor- poena has been received and the re- mally shall be charged when the DON quester refuses to pay appropriate fees, is a party to the proceedings, and the it may become necessary to request the activity holding the requested informa- Department of Justice to take appro- tion or employing the witness shall priate legal action before the court bear the expense of complying with the issuing the subpoena. Determining au- request. thorities should consult promptly with (2) When another federal agency is a the OJAG General Litigation Division party. No fees shall be charged to the or the Navy Litigation Office of the requesting agency. Travel and per diem General Counsel if this course of action expenses may be paid by the requesting appears necessary, because some objec- agency, or by the Navy activity to tions to subpoenas must be made either which the requested witness is as- within ten days of service of the sub- signed, subject to reimbursement from poena or on or before the time for com- the requesting agency. pliance, whichever first occurs, and be- (3) When neither DON nor another fed- cause this will require timely consulta- eral agency is a party. Fees shall be tion with the Department of Justice. If charged to the requester for time taken no subpoena has been issued, the deter- from official duties by DON personnel mining authority must decide whether who are authorized to be interviewed, to deny the request or, if appropriate, give testimony, or escort persons on waive the fees. views and visits of installations. At the (2) Waiver or reduction of fees. The de- discretion of the cognizant command, termining authority may waive or re- DON personnel need not be made avail- duce fees pursuant to 32 CFR 288.4, able during duty hours unless directed 288.9, provided such waiver or reduction by subpoena. Time which DON per- is in the best interest of the DON and sonnel spend in court testifying, or the United States. Fee waivers and re- waiting to testify on factual matters ductions shall not be routinely grant- shall not be charged. Fees should be ed, or granted under circumstances charged, however, for expert or opinion which might create the appearance testimony based upon the witness’s that DON favors one party over an- education, training, or experience. Tes- other. timony by a treating physician called (3) Witness fees required by the court. to testify about his personal knowledge Witness fees required by the rules of of a specific case is considered fact not the applicable court shall be paid di- expert testimony. Fees are payable to rectly to the witness by the requester. the Treasurer of the United States for Such amounts are to defray the cost of deposit in the Treasury’s miscellaneous travel and per diem. In a case where receipts. Rates for uniformed personnel the Government has paid the cost of are published in NAVCOMPT Notice travel and per diem, the witness shall 7041 series.15 Pursuant to 32 CFR 288.4, turn over to his or her supervisor any charges for civilian personnel should payment received from a private party include the employee’s hourly rate of to defray the cost of travel that, when pay, as well as allowances and benefits. added to amounts paid by the Govern- Except as provided in § 725.11(b)(4), no ment, exceed the actual cost of travel. funds may be expended for travel or per The supervisor shall forward the diem of active duty members when an amount turned over by the witness to the Office of the Comptroller of the 13 See footnote 1 to § 725.1. Navy for appropriate action. 14 See footnote 1 to § 725.1. (4) Exceptional cases. If neither the 15 See footnote 1 to § 725.1. DON, nor an agency of the Federal

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Government is a party, appropriated (b) Member as used in this chapter refunds may be used to pay, without refers to: imbursement, travel and per diem of (1) Members of the Navy or Marine DON personnel who are witnesses in Corps on active duty (other than for criminal or civil proceedings, provided, training) or on the retired list of the the case is directly related to the Navy or Marine Corps; and Armed Services, or its members, and (2) Members of the Fleet Reserve or the Armed Services have a genuine and Fleet Marine Corps Reserve. compelling interest in the outcome. § 726.3 Authority to appoint trustees. PART 726—PAYMENTS OF The Judge Advocate General or his AMOUNTS DUE MENTALLY IN- designee is authorized to act for the COMPETENT MEMBERS OF THE Secretary of the Navy to appoint trust- NAVAL SERVICE ees to receive and administer Federal monies for members and to carry out Sec. the provisions of this chapter. 726.1 Purpose. 726.2 Scope. § 726.4 Procedures for convening com- 726.3 Authority to appoint trustees. petency boards. 726.4 Procedures for convening competency boards. (a) Competency Board. (1) The com- 726.5 Procedures for designation of a trust- manding officer of the cognizant naval ee. medical facility will convene a board of 726.6 Travel orders. not less than three medical officers or 726.7 Status of pay account. 726.8 Emergency funds. physicians, one of whom will be a psy- 726.9 Reports and supervision of trustees. chiatrist, when there is evidence that a member who is a patient in the naval 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 medical facility may be incapable of and 700.1202. handling his affairs. The board will be convened in accordance with chapter SOURCE: 56 FR 55088, Oct. 24, 1991, unless otherwise noted. 18, Manual of the Medical Department. NOTE: This part 726 is chapter XIV, of the The board may include members of the Manual of the Judge Advocate General of the Reserve components on active or inac- Navy. tive duty. When active duty Navy or Marine corps members are hospitalized § 726.1 Purpose. in nonnaval medical facilities, the re- This part explains the procedures for gional Naval Office of the Medical/Den- convening competency boards and how tal Affairs will ensure compliance with to appoint trustees for members of the chapter 18. Naval service who have been deter- (2) The Judge Advocate General or mined to be mentally incompetent in his designee may direct the com- accordance with title 11 of chapter 37, manding officer of any naval medical United States Code. facility, or request the commanding officer of another service medical facility § 726.2 Scope. or administrator of a Department of (a) The Secretary of the Navy has au- Veterans Affairs medical facility, to thority to designate a trustee in the convene a board in accordance with absence of notice that a legal com- this section to determine the mental mittee, guardian, or other legal rep- capability of a member to manage his resentative has been appointed by a affairs. State court of competent jurisdiction. (3) A finding of restoration of com- 37 U.S.C. 601-604. Trustees receive the petency or capability to manage per- active duty pay and allowances, sonal and financial affairs may be ac- amounts due for accrued or accumu- complished in the same manner speci- lated leave, and retired pay or retainer fied in chapter 18, Manual of the Med- pay, that are otherwise payable to a ical Department, except that the board member found by competent medical may consist of one or two medical offi- authority to be mentally incapable of cers or physicians, one of whom must managing his affairs. be a psychiatrist.

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(4) At least one officer on the board, the interviewing officer to the Judge preferably the psychiatrist, will per- Advocate General. sonally observe the member and ensure (b) The interviewing officer will: (1) that the member’s medical record, par- Determine whether the prospective ticularly that portion concerning his trustee can obtain an appropriate bond mental health, is accurate and com- as directed by the Judge Advocate Gen- plete. eral or his designee; (5) The requirement for the com- (2) Ascertain that the prospective petency board is in addition to and sep- trustee is willing to execute an affi- arate from the medical board proce- davit acknowledging that all monies dures. Each board member will sign the will be applied to the use and benefit of report of the board and will certify the member and his legal dependents whether the member is or is not men- and that no fee, commission, or charge, tally capable of managing his affairs. for any service performed by the trust- After approval by the convening au- ee, except for payment of the required thority, the original board report is bond, will be paid from Federal monies forwarded to the Judge Advocate Gen- received by the trustee. eral. (3) Forward recommendations to the (b) Records. (1) The convening author- Judge Advocate General for appro- ity will forward the original of each priate action. board report to the Judge Advocate General, Department of the Navy, 200 § 726.6 Travel orders. Stovall Street, Alexandria, VA 22332- The Chief of Naval Personnel or the 2400. Director, Personnel Management Divi- (2) In the case of a finding that a sion, Headquarters, Marine Corps, may member is not mentally capable of issue travel orders to a member to ap- managing his affairs, the forwarding pear before an examining board con- endorsement will set forth the name, vened to determine whether the mem- relationship, address, and telephone ber is mentally capable of managing number(s), of the member’s next of kin his affairs. In the case of permanently and any other data to help identify a retired members, however, travel for prospective trustee. an appearance before a board convened pursuant to section 1404, above, will be § 726.5 Procedures for designation of a at no cost to the Government unless trustee. the Judge Advocate General or his des- (a) Upon receipt of a report of a board ignee determines that unusual hard- convened under section 1404 that a ship exists and requests that appro- member has been found mentally in- priate authority fund the travel ex- capable of managing his affairs, the penses. Judge Advocate General or his designee will initiate action to appoint a trust- § 726.7 Status of pay account. ee, provided no notice of appointment (a) Upon notification by the com- of a committee, guardian, or other manding officer of the medical facility legal representative by a State court of preparing the incapacitation deter- competent jurisdiction has been re- mination that a member has been de- ceived by the Judge Advocate General. clared mentally incompetent to man- The Judge Advocate General or his des- age his affairs, the cognizant dis- ignee may direct any Navy or Marine bursing officer will take appropriate Corps activity to appoint an officer to action and immediately send the mem- interview a prospective trustee and ber’s personal financial record to the make recommendations concerning appropriate finance center following suitability. The Judge Advocate Gen- the guidelines in the Department of eral will provide the interviewing offi- Defense Military Pay and Allowances cer with complete instructions per- Entitlements Manual, Part Four, chap- taining to the interview of the prospec- ter 2. The Judge Advocate General or tive trustee, including the forms re- his designee will then direct the appro- quired to be completed by the prospec- priate finance center to suspend the tive trustee that will be returned by member’s pay. Thereafter, the Judge

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Advocate General or his designee will (3) The funds are necessary for the direct payment of monies to: purchase of items necessary for the (1) The appointed trustee; health and comfort of the member. (2) The legal representative ap- (c) This section will be cited on the pointed by a State court of competent pay voucher as authority for payment jurisdiction; or and receipt of such funds. (3) Directly to the member following a determination that the member is ca- § 726.9 Reports and supervision of pable of managing his affairs. trustees. (b) The Commanding Officer, Navy (a) Accounting reports. The trustee Finance Center, or Commanding Offi- designated under this chapter will sub- cer, Marine Corps Finance Center, will mit accounting reports annually or at notify the Judge Advocate General of such other times as the Judge Advo- any fact affecting the pay of a member cate General or his designee directs. mentally incapable of managing his af- The Judge Advocate General will pro- fairs. This includes waiver of retired vide forms to be used by trustees for pay in favor of Veterans Administra- the required accounting report. The re- tion compensation; death of the mem- port will account for all funds received ber; death of the trustee; or, notice of from the Navy or Marine Corps on be- appointment of a legal representative half of the member. When payments to by a State court of competent jurisdic- a trustee are terminated for any rea- tion. At the request of the Judge Advo- son, the trustee will submit a final ac- cate General or his designee, the appro- counting report to the Judge Advocate priate finance center will report all General. Upon approval of the final ac- disbursements from the member’s account. counting report, the trustee and the surety will be discharged from liabil- (c) The Navy or Marine Corps Fi- nance Center will seek direction from ity. the Judge Advocate General when in- (b) Failure to submit a report and de- formation from other sources indicates fault. If an accounting report is not re- a member is not competent to manage ceived by the date designated by the his affairs. Judge Advocate General or his designee, or an accounting is unsatisfac- § 726.8 Emergency funds. tory, the Judge Advocate General or (a) Until a trustee is appointed, the his designee will notify the trustee in Judge Advocate General or his designee writing. If a satisfactory accounting is may appoint the member’s com- not received by the Judge Advocate manding officer or other appropriate General within the time specified, the official to receive emergency funds up trustee will be declared in default of to $1,000.00 from the pay account of the the trustee agreement and will become member without bond. The money will liable for all unaccounted trustee be used for the benefit of the member funds. If a trustee is declared in default and his legal dependents. of the trustee agreement, the appro- (b) The commanding officer of any priate finance center will be directed naval medical facility may designate to terminate payments to the trustee an officer of the command to receive and, if necessary, a successor trustee and account for up to $35.00 per month may be appointed. The trustee and sur- for the health and comfort of a member ety will be notified in writing by the who is found mentally incapable of Judge Advocate General or his designee handling his affairs and who is a pa- of the declaration of default. The noti- tient at the naval medical facility, if: fication will state the reasons for de- (1) A trustee has not been designated fault, the amount of indebtedness to under this chapter and a committee, the Government, and will demand pay- guardian, or other legal representative ment for the full amount of indebted- has not been appointed by a State ness. If payment in full is not received court of competent jurisdiction; by the Judge Advocate General within (2) The member has no other funds an appropriate period of time from no- available for use in his own behalf; and tification of default, the account may

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be forwarded to the Department of Jus- serve Components following release tice for recovery of funds through ap- from active duty under a call or order propriate civil action. to active duty for more than 30 days issued under a mobilization authority PART 727—LEGAL ASSISTANCE (as determined by the Secretary of De- fense), for a period of time that begins Sec. on the date of the release and is not 727.1 Purpose. less than twice the length of the period 727.2–727.4 [Reserved] served on active duty under that call 727.5 Persons eligible for assistance. or order to active duty, and in overseas 727.6 Functions of legal assistance officers. areas, civilians, other than local-hire 727.7 Limitations on service provided. employees, who are in the employ of, 727.8 Confidential and privileged character serving with, or accompanying the U.S. of service provided. Armed Forces, and their dependents, 727.9 Referrals to civilian lawyers. 727.10 Fees, compensation, solicitation, and when and if the workload of the office representation in civilian courts. renders such service feasible, and other 727.11 Supervision. persons authorized by the Judge Advo- 727.12 Communications. cate General of the Navy. 727.13 Reports. [69 FR 20541, Apr. 16, 2004] 727.14 Files and records. 727.15 Liberal construction of part. § 727.6 Functions of legal assistance of- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031 and ficers. 5148; 32 CFR 700.206 and 700.1202. (a) Basic duties. A legal assistance of- SOURCE: 38 FR 6026, Mar. 6, 1973, unless oth- ficer, while performing legal assistance erwise noted. duties, in addition to performing any other duties which may be assigned to § 727.1 Purpose. him/her: A legal assistance program providing (1) Shall counsel, advise, and assist needed legal advice and assistance to persons eligible for assistance in con- military personnel and their depend- nection with their personal legal prob- ents has been in operation in the naval lems, or refer such persons to a civilian service since 1943. The program has im- lawyer as provided in § 727.9. proved the morale of personnel and re- (2) Shall serve as advocate and coun- duced disciplinary problems since its sel for persons eligible for assistance in inception. The purpose of this part is connection with their personal legal to provide guidelines for the continu- problems and may prepare and sign ation of the program. correspondence on behalf of a client, negotiate with another party or his §§ 727.2–727.4 [Reserved] lawyer, and prepare all types of legal documents, including pleadings, as are § 727.5 Persons eligible for assistance. appropriate. Legal assistance shall be available to (3) Shall, in appropriate cases and members of the Armed Forces of the under guidelines prescribed in the Man- United States and their dependents, ual of the Judge Advocate General con- and military personnel of allied na- templating agreements or liaison with tions serving in the United States, its appropriate civilian bar officials, serve territories or possessions. Legal assist- as advocate and counsel for, and pro- ance is intended primarily for the ben- vide full legal representation including efit of active duty personnel during ac- representation in court to, persons eli- tive service, including reservists (and gible for assistance in connection with members of the National Guard) on ac- their personal legal problems. tive duty for 30 days or more. As re- (4) Shall, subject to the direction of sources permit, legal assistance may be the senior legal assistance officer of extended to retired military personnel, the command, establish contact and their dependents, survivors of members maintain liaison with local bar organi- of the Armed Forces who would be eli- zations, lawyer referral services, legal gible were the service member alive, aid societies, and other local organiza- reservists on active duty for single pe- tions through which the services of ci- riods of 29 days or less, members of Re- vilian lawyers may be made available

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to military personnel and their depend- sonnel with respect to legal rights and ents. relationships, negotiating contracts, (5) Shall supervise the personnel and and other matters requiring an edu- operation of the legal assistance office cated ability to relate the general body in accordance with good legal practice and philosophy of law to a specified and the policies and guidance provided legal problem of a client. Guidance in by the Judge Advocate General. this matter may be had from various (6) Shall advise persons with com- official sources including the ethical plaints of discrimination on policies considerations under the Code of Pro- and procedures under the Civil Rights fessional Responsibility of the Amer- Act of 1964 and pertinent Navy instruc- ican Bar Association. tions. [41 FR 26863, June 30, 1976, as amended at 47 (b) Nature of assistance. Legal assist- FR 41561, Sept. 21, 1982; 65 FR 26748, May 9, ance officers and administrative and 2000] clerical personnel assigned to legal assistance offices perform legal assist- § 727.7 Limitations on service pro- ance duties as official duties in the ca- vided. pacity of an officer or an employee of (a) Assistance in official military mat- the United States. Persons performing ters. Legal Assistance duties are sepa- legal assistance duties, however, rate and apart from the responsibilities should not mislead those with whom of a trial counsel, defense counsel, or they may deal into believing that their other officer involved in the processing views or opinions are the official views of courts-martial, nonjudicial punish- or opinions of, approved by, or binding ment, administrative boards or pro- on, the Department of the Navy or the ceedings, investigations, or other offi- United States. cial military matters. Frequently, a (c) Duty to client. A legal assistance service member accused or suspected of officer should exercise his independent an offense or conduct leading to an ad- professional judgment on behalf of his ministrative proceeding will request client within the standards promul- advice from the legal assistance offi- gated in the Code of Professional Re- cer. In such a case, the service member sponsibility and the specific limita- should be advised of the proper proce- tions imposed in this part. dures for obtaining counsel or advice. (d) Professional legal advice. Legal as- This limitation does not prevent the sistance is authorized for personal assignment of the same officer to per- legal affairs only, as contrasted with form the functions of a legal assistance military justice problems, business officer and the functions of a defense ventures, or matters that are not of a counsel, counsel for respondent, or personal nature. Legal assistance du- counsel for a party. ties are separate and apart from re- (b) Domestic-relations cases. In domes- sponsibilities of trial counsel, defense tic-relations cases, a legal assistance counsel, or others involved in proc- officer may provide advice concerning essing courts-martial, nonjudicial pun- the legal and practical implications of ishments, administrative boards or divorce, legal separation, annulment, proceedings, and investigations. Only custody, and paternity. Assistance and 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.

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(c) Nonlegal advice. The legal assist- them in any way. While case files are ance officer, while giving legal advice, not subject to the control of the De- may also determine that the client partment of the Navy and therefore do needs or desires advice on related not constitute a ‘‘system of records’’ nonlegal matters. The legal assistance within the meaning of the Privacy Act officer should provide legal advice of 1974 (5 U.S.C. 552a), no information only, or defer giving such advice, and which identifies an individual legal as- refer the client to an appropriate per- sistance client by name or any other son or agency for such nonlegal coun- particular, such as social security seling. The legal assistance officer number, shall be extracted from the should establish and maintain a working relationship with those individuals case files and incorporated into any who are qualified to provide nonlegal file or index system aside from or in counseling services. addition to the information contained (d) Proceedings involving the United on the legal assistance form (NAVJAG States. A legal assistance officer shall 5801/9) or locally used equivalent. not advise on, assist in, or become in- Strict adherence to the foregoing will volved with, individual interests op- ensure compliance with the Privacy posed to or in conflict with the United Act. Administrative and clerical per- States without the specific approval of sonnel assigned to legal assistance of- the Judge Advocate General. fices shall maintain the confidential (e) Telephone inquiries. In the absence nature of matters handled. of unusual or compelling circumstances, legal advice should not be [42 FR 35957, July 13, 1977, as amended at 65 given over the telephone. This does not FR 26749, May 9, 2000] prohibit appropriate follow-up tele- § 727.9 Referrals to civilian lawyers. phone discussions between the legal assistance attorney and the client. (a) General. If it is determined that the legal assistance requested is be- [41 FR 26863, June 30, 1976, as amended at 65 FR 26749, May 9, 2000] yond the scope of this part, or if no available legal assistance officer is § 727.8 Confidential and privileged qualified to give the assistance recharacter of service provided. quested, the client should be referred All information and files pertaining to a civilian lawyer. When the client to the persons served will be treated as does not know of a lawyer whom he confidential and privileged in the legal wishes to represent him, his case may sense as outlined in the Code of Profes- be referred to an appropriate bar orga- sional Responsibility, as opposed to nization, lawyer referral service, legal confidential in the military sense of se- aid society, or other local organization curity information. These privileged for assistance in obtaining reliable, matters may not be disclosed to any- competent, and sympathetic counsel, one by personnel rendering the service, or to a civilian lawyer designated by except upon the specific permission of such organization. the person concerned, and disclosure (b) Fees charged by civilian lawyers. thereof may not be lawfully ordered by Legal assistance clients being referred superior military authority. This re- to a civilian lawyer should be advised striction does not prohibit providing that, even when the fee to be charged is the nonprivileged statistical data required by § 727.13 of this part. Protec- set by statute or subject to court ap- tion of the confidences of a legal assist- proval, it should be one of the first ance client is essential to the proper items discussed to avoid later mis- functioning of the legal assistance pro- understandings and eliminate uncer- gram in order to assure all military tainty. Legal assistance officers should personnel, regardless of grade, rank, or exercise caution in discussing possible position, that they may disclose frank- fees to be charged by civilian lawyers ly and completely all material facts of so as to avoid embarrassment or mis- their problem to those rendering the understanding between the client and service without fear that their con- his civilian lawyer. fidence will be abused or used against

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§ 727.10 Fees, compensation, solicita- or the Commander, Naval Legal Serv- tion, and representation in civilian ice Command, as appropriate. Requests courts. for such permission may be in the form (a) General. Active duty military per- prescribed in the Manual of the Judge sonnel and civilian employees of the Advocate General. Navy and Marine Corps are prohibited [47 FR 41561, Sept. 21, 1982, as amended at 65 from accepting or receiving, directly or FR 26749, May 9, 2000] indirectly, any fee or compensation of any nature, in cash or otherwise, for § 727.11 Supervision. legal services rendered to any person The Judge Advocate General will ex- entitled to legal assistance under this ercise supervision over all legal assist- part whether or not the service ren- ance activities in the Department of dered is normally provided or available the Navy. Subject to the supervision of to such person under this part and the Judge Advocate General, officers in whether or not the service is rendered charge of Naval Legal Service Offices, during duty hours as part of official du- and all Marine Corps commanders exer- ties. Reserve judge advocates on inac- cising general court-martial authority, tive duty are prohibited from accepting acting through their judge advocates, or receiving any fee or compensation of shall exercise supervision over all legal any nature, in cash or otherwise, for assistance activities within their re- legal services rendered to any person spective areas of responsibility and entitled to legal assistance under this shall ensure that legal assistance serv- part with respect to matters about ices are made available to all eligible which they consulted or advised said personnel within their areas. The person in an official capacity. Judge Advocate General will collabo- (b) Solicitation. Active duty military rate with the American Bar Associa- personnel, civilian employees of the tion, the Federal Bar Association, and Navy and Marine Corps, and inactive other civilian bar organizations as he reservists, acting in an official capac- may deem necessary or advisable in the ity, are prohibited from soliciting, or accomplishment of the objectives and advising that any person entitled to purposes of the legal assistance pro- legal assistance under this part retain, gram. consult, or seek legal services from themselves in their private capacities, [42 FR 35957, July 13, 1977] or from any attorney who is a partner or associate of a law firm of which they § 727.12 Communications. are partners or associates, or from any (a) Legal assistance officers are au- attorney with whom they share office thorized to communicate directly with spaces; Provided that nothing herein the Judge Advocate General, with each shall prevent such person from being other, and with other appropriate orga- referred to civilian counsel as provided nizations and persons concerning legal in § 727.9. assistance matters. (c) Representation before civilian courts (b) The use of a legal assistance of- or agencies. No active duty Navy or Ma- fice letterhead within the Department rine Corps judge advocate may appear of the Navy is authorized as an excep- as counsel on behalf of any person enti- tion to the standard letterhead require- tled to legal assistance, except as pro- ments contained in Department of De- vided in paragraph (a)(3) of § 727.6, or fense Instructions. Naval Legal Service the Expanded Legal Assistance Pro- Offices and other commands having au- gram, or under guidelines prescribed in thorized legal assistance officers are the Manual of the Judge Advocate Gen- authorized to print and use letterheads eral, before any civil court, civil ad- without seal or official command des- ministrative tribunal, civil regulatory ignation in those matters in which the body, or civil governmental agency, in correspondence pertains solely to legal any proceeding, whether or not a fee or assistance matters. Legal assistance other compensation is accepted or re- officers are directed to ensure that ceived, without prior written approval their correspondence does not imply of the Judge Advocate General, the ad- United States Navy or command spon- ministrator of the applicable program, sorship or approval of the substance of

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the correspondence. Such correspond- 728.3 General restrictions and priorities. ence is considered a private matter 728.4 Policies. arising from the attorney-client relationship as indicated in § 727.8. Subpart B—Members of the Uniformed Services on Active Duty [42 FR 35958, July 13, 1977, as amended at 65 FR 26749, May 9, 2000] 728.11 Eligible beneficiaries. 728.12 Extent of care. § 727.13 Reports. 728.13 Application for care. Each legal assistance office shall, by 728.14 Pay patients. the 10th day of October of each year, prepare and submit to the Judge Advo- Subpart C—Members of Reserve Compo- cate General one copy of the Legal As- nents, Reserve Officers’ Training Corps, sistance Report (NAVJAG 5801/3 Rev. Navy and Marine Corps Officer Can- 12–78)) covering the preceding fiscal didate Programs, and National Guard year. A final report shall be submitted Personnel on the disestablishment of the legal as- 728.21 Navy and Marine Corps reservists. sistance office. Special reports shall be 728.22 Members of other reserve components submitted when requested by the Judge of the uniformed services. Advocate General. Information copies 728.23 Reserve Officers’ Training Corps of all reports shall be furnished to the (ROTC). supervising commander referred to in 728.24 Navy and Marine Corps Officer Can- § 727.11. Reports symbol JAG–5801–1 is didate Programs. assigned for this reporting require- 728.25 Army and Air Force National Guard personnel. ment. [38 FR 6026, Mar. 6, 1973, as amended at 47 FR Subpart D—Retired Members and 41561, Sept. 21, 1982] Dependents of the Uniformed Services

§ 727.14 Files and records. 728.31 Eligible beneficiaries and health benefits authorized. (a) Case files. The material contained 728.32 Application for care. in legal assistance case files is nec- 728.33 Nonavailability statement (DD 1251). essarily limited to private unofficial 728.34 Care beyond the capabilities of a matters and such material is privileged naval MTF. and protected under the attorney-cli- 728.35 Coordination of benefits—third party ent relationship. Each legal assistance payers. office should therefore maintain only 728.36 Pay patients. such files as are necessary for the proper operation of the office. Subpart E—Members of Foreign Military (b) [Reserved] Services and Their Dependents [38 FR 6026, Mar. 6, 1973, as amended at 43 FR 728.41 General provisions. 17355, Apr. 24, 1978] 728.42 NATO. 728.43 Members of other foreign military § 727.15 Liberal construction of part. services and their dependents. 728.44 Members of security assistance train- The provisions of this part are in- ing programs, foreign military sales, and tended to be liberally construed to aid their ITO authorized dependents. in accomplishing the mission of legal 728.45 Civilian components (employees of assistance. foreign military services) and their dependents. PART 728—MEDICAL AND DENTAL 728.46 Charges and collection. CARE FOR ELIGIBLE PERSONS AT Subpart F—Beneficiaries of Other Federal NAVY MEDICAL DEPARTMENT Agencies FACILITIES 728.51 General provisions—the ‘‘Economy Subpart A—General Act.’’ 728.52 Veterans Administration bene- Sec. ficiaries (VAB). 728.1 Mission of Navy Medical Department 728.53 Department of Labor, Office of Work- facilities. ers’ Compensation Programs (OWCP) 728.2 Definitions. beneficiaries.

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728.54 U.S. Public Health Service (USPHS), 5537, 6011, 6201–6203; 22 U.S.C. 1158, 2357, 2504, other than members of the uniformed 2505, 2507, 2522; 24 U.S.C. 15, 34, 35; 31 U.S.C. services. 1535; 42 U.S.C. 249, 253; and 32 CFR 700.1202. 728.55 Department of Justice beneficiaries. 728.56 Treasury Department beneficiaries. SOURCE: 52 FR 33718, Sept. 4, 1987, unless 728.57 Department of State and associated otherwise noted. agencies. 728.58 Federal Aviation Agency (FAA) bene- Subpart A—General ficiaries. 728.59 Peace Corps beneficiaries. § 728.1 Mission of Navy Medical De- 728.60 Job Corps and Volunteers in Service partment facilities. to America (VISTA) beneficiaries. 728.61 Medicare beneficiaries. The primary mission of Navy Medical Department facilities is to provide Subpart G—Other Persons medical and dental care for members of 728.71 Ex-service maternity care. the Navy and Marine Corps and for 728.72 Applicants for enrollment in the Sen- members of the other uniformed serv- ior Reserve Officers’ Training Program. ices who may be sick, injured, or dis- 728.73 Applicants for enlistment or reenlist- abled. In addition, Navy Medical De- ment in the Armed Forces, and appli- partment facilities may provide med- cants for enlistment in the reserve com- ical and dental care to dependents of ponents. military personnel, to members not on 728.74 Applicants for appointment in the regular Navy or Marine Corps and re- active duty, and to such other persons serve components, including members of as authorized by law, U.S. Navy regula- the reserve components who apply for actions, and Department of Defense di- tive duty. rectives. These authorizations also pro- 728.75 Applicants for cadetship at service vide that Navy Medical Department fa- academies and applicants for the Uni- cilities may be called upon to furnish formed Services University of Health medical and dental care, under laws of Sciences (USUHS). humanity or principles of international 728.76 Naval Home residents. 728.77 Secretarial designees. courtesy, to civilians and to other per- 728.78 American Red Cross representatives sons not otherwise entitled to medical and their dependents. and dental care. 728.79 Employees of Federal contractors and subcontractors. § 728.2 Definitions. 728.80 U.S. Government employees. 728.81 Other civilians. Unless otherwise qualified in this 728.82 Individuals whose military records part, the following terms, when used are being considered for correction. throughout, are defined as follows: 728.83 Persons in military custody and non- (a) Active duty. Full-time duty in the military Federal prisoners. active military service of the United States. This includes full-time training Subpart H—Adjuncts to Medical Care duty; annual training duty; and attend- 728.91 General. ance, while in the active military serv- 728.92 Policy. ice, at a school designated as a service 728.93 Chart of adjuncts. school by law or by the Secretary of the military department concerned. It Subpart I—Reservists—Continued Treat- does not include full-time National ment, Return to Limited Duty, Separa- Guard duty. tion, or Retirement for Physical Dis- (b) Active duty for training. A tour of ability active duty for reserves for training 728.101 General. under orders that provide for auto- 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, 286

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(d) Catchment area. A specified geo- tractor’s office who serves as the point graphic area surrounding each Uni- of contact for health benefits advisors formed Services Medical Treatment on all matters related to supplemental- Facility (USMTF) or designated Uni- cooperative care or services provided formed Services Treatment Facility or ordered for CHAMPUS-eligible bene- (USTF). In the United States, ficiaries by USMTF providers. catchment areas are defined by zip (i) Dental care. Treatment which will codes and are based on an area of ap- prevent or remedy diseases, disabil- proximately 40 miles in radius for inpa- ities, and injuries to the teeth, jaws, tient care and 20 miles in radius for and related structures and thereby con- ambulatory care. Zip codes designating tribute to maintenance or restoration such areas in the United States are of the dental health of an individual. specified in Volumes I and II of the (j) Dependent. A spouse, an Military Health Services System unremarried widow or widower, a child, (MHSS) Catchment Area Directory. or a parent who bears that legal rela- Catchment areas for facilities outside tionship to his or her sponsor. For the the United States are defined in Vol- purpose of rendering care under title ume III of the MHSS Catchment Area 10, U.S.C., chapter 55, this category Directory. These directories exclude may also include an unremarried certain areas because of geographic former spouse. However, each bene- barriers. ficiary must also meet the eligibility (e) Chronic condition. Any medical or criteria in § 728.31(b) and § 728.31(c). surgical condition marked by long du- (k) Designated USTFs. The following ration or frequent recurrence—or like- former U.S. Public Health Service ly to be so marked—which, in light of (USPHS) facilities operate as ‘‘des- medical information available, will or- ignated USTFs’’ for the purpose of ren- dinarily resist efforts to eradicate it dering medical and dental care to ac- completely; a condition which needs tive duty members and to all health benefits to achieve or maintain CHAMPUS-eligible individuals. stability that can be provided safely (1) Sisters of Charity of the Incarnate only by, or under the supervision of, Word Health Care System, 6400 physicians, nurses, or persons author- Lawndale, Houston, TX 77058 (713) 928– ized by physicians. 2931 operates the following facilities: (f) Civilian employee. Under 5 U.S.C. (i) St. John Hospital, 2050 Space Park 2105, a nonmilitary individual (1) ap- Drive, Nassau Bay, TX 77058, telephone pointed in the civil service, (2) engaged (713) 333–5503. Inpatient and outpatient in the performance of a Federal func- services. tion, or (3) engaged in the performance (ii) St. Mary’s Hospital Outpatient of his or her duties while subject to the Clinic, 404 St. Mary’s Boulevard, Gal- supervision of The President, a Member veston, TX 77550, telephone (409) 763– or Members of Congress, or the Con- 5301. Outpatient services only. gress, a member of a uniformed service, (iii) St. Joseph Hospital Ambulatory an individual who is an employee under Care Center, 1919 La Branch, Houston, 5 U.S.C. 2105, the head of a Government TX 77002, telephone (713) 757–1000. Out- controlled corporation, or an adjutant patient services only. general designated by the Secretary (iv) St. Mary’s Hospital Ambulatory concerned under section 709c of title 32. Care Center, 3600 Gates Boulevard, Included are justices and judges of the Port Arthur, TX 77640 (409) 985–7431. United States, appointed and engaging Outpatient services only. 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

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Island, NY 10304, telephone (718) 390– the units to which they are assigned. It 5547 or 6007. includes those duties when performed (iv) Pacific Medical Center, 1200 12th by Reserves in their status as members Avenue South, Seattle, WA 98144, tele- of the National Guard. phone (206) 326–4100. (r) Legitimate care. Those medical and (3) Outpatient services only. (i) Coastal dental services under the cooperative/ Health Service, 331 Veranda Street, supplemental care program of Portland, ME 04103, telephone (207) 774– CHAMPUS that are legally performed 5805. and not contrary to governing statutes. (ii) Lutheran Medical Center, Down- (s) Maximum hospital benefit. That town Health Care Services, 1313 Supe- point during inpatient treatment when rior Avenue, Cleveland, OH 44113, tele- the patient’s progress appears to have phone (216) 363–2065. stabilized and it can be anticipated (l) Disability retirement or separation. that additional hospitalization will not Temporary or permanent retirement or directly contribute to any further sub- separation for physical disability as stantial recovery. A patient who will provided in title 10, U.S.C., 1201–1221. continue to improve slowly over a long (m) Elective care. Medical, surgical, or period without specific therapy or med- dental care desired or requested by the ical supervision, or with only a mod- individual or recommended by the phy- erate amount of treatment on an out- sician or dentist which, in the opinion patient basis, may be considered as of other cognizant professional author- having attained maximum hospital ity, can be performed at another place benefit. or time without jeopardizing life, limb, (t) Medical care. Treatment required health, or well-being of the patient, to maintain or restore the health of an e.g., surgery for cosmetic purposes and individual. Medical care may include, nonessential dental prosthetic appli- but is not limited to, the furnishing of ances. inpatient treatment, outpatient treat- (n) Emergency care. Medical treatment, nursing service, medical exami- ment of patients with severe, life- threatening, or potentially disabling nations, immunizations, drugs, subsist- conditions that require immediate ence, transportation, and other ad- intervention to prevent undue suffering juncts such as prosthetic devices, spec- or loss of life or limb and dental treat- tacles, hearing aids, orthopedic foot- ment of painful or acute conditions. wear, and other medically indicated appliances or services. (o) Health benefits advisors (HBA). Designated individuals at naval facili- (u) Medically inappropriate. A situa- ties who are responsible for advising tion arising when denial of a Nonavail- and assisting beneficiaries covered in ability Statement could result in sig- this part concerning medica1 and den- nificant risk to the health of a patient tal benefits in uniformed services fa- or significant limitation to the pa- cilities and under CHAMPUS. They tient’s reasonable access to needed also provide information regarding health care. Veterans’ Administration, Medicare, (v) Medically necessary. The level of MEDICAID, and such other local services and supplies (i.e., frequency, health programs known to be available extent, and kinds) adequate for the di- to beneficiaries (see § 728.4(n)). agnosis and treatment of illness or in- (p) Hospitalization. Inpatient care in a jury, including maternity care. Medi- medical treatment facility. cally necessary, includes the concept of (q) Inactive duty training. Duty pre- appropriate medical care. scribed for Reserves by the Secretary (w) Medical treatment facility (MTF). concerned under section 206 of title 37, Any duly authorized medical depart- U.S.C. or any other provision of law. ment center, hospital, clinic, or other Also includes special additional duties facility that provides medical, sur- authorized for Reserves by an author- gical, or dental care. ity designated by the Secretary con- (x) Member or former member. Includes: cerned and performed on a voluntary (1) Members of the uniformed serv- basis in connection with the prescribed ices ordered to active duty for more training or maintenance activities of than 30 days.

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(2) Retired members as defined in See § 728.12 concerning the management § 728.2(bb). of active duty member patients. (3) Members of a uniformed service (dd) Uniformed services. The Navy, ordered to active duty for more than 30 Marine Corps, Air Force, Army, Coast days who died while on that duty. Guard, Commissioned Corps of the Pub- (4) Deceased retired members. lic Health Service, and the Commis- (y) Military patient. A member of a sioned Corps of the National Oceanic United States uniformed service on ac- and Atmospheric Administration. tive duty, active duty for training, or (ee) USMTF. Uniformed services med- inactive duty training, or an active ical treatment facility. duty member of the armed forces of a (ff) Visit, outpatient. Appearance by foreign government who is receiving an eligible beneficiary at a separate, inpatient or outpatient care. organized clinic or specialty service (z) Occupational health services. In- for: Examination, diagnosis, treat- cludes medical examinations and tests ment, evaluation, consultation, coun- related to preemployment, seling, or medical advice; or treatment preplacement, periodic, and of an eligible beneficiary in quarters; pretermination; tests required for pro- and a signed and dated entry is made in tecting the health and safety of naval the patient’s health record. Specifi- personnel; job-related immunizations cally excluded are personnel in an in- and chemoprophylaxis; education and patient status at the time of such a training related to occupational visit. health; and other services provided to avoid lost time or to improve effective- § 728.3 General restrictions and prior- ness of employees. The latter will in- ities. clude the furnishing of emergency (a) Restrictions. (1) Naval MTFs pro- treatment of illnesses or injuries oc- vide care to all eligible beneficiaries curring at work. Furnish such health subject to the capabilities of the pro- services to both active duty military fessional staff and the availability of personnel and naval civilian employees space and facilities. per current directives. (2) Hospitalization and outpatient (aa) Retired member. A member or services may be provided outside the former member of a uniformed service continental limits of the United States who is entitled to retired or retainer and in Alaska to officers and employ- pay, or equivalent pay, as a result of ees of any department or agency of the service in a uniformed service. This in- Federal Government, to employees of a cludes a member or former member contractor with the United States or who is: (1) Retired for length of service; the contractor’s subcontractor, to ac- (2) permanently or temporarily retired companying dependents of such per- for physical disability; (3) on the emer- sons, and in emergencies to such other gency officers’ retired list and is enti- persons as the Secretary of the Navy tled to retired pay for physical dis- may prescribe: Provided, such services ability; or (4) otherwise in receipt of re- are not otherwise available in reason- tired pay under chapter 67 of title 10. ably accessible and appropriate non- (bb) Routine care. Medica1 and dental Federal facilities. Hospitalization of care necessary to maintain health or such individuals in a naval MTF is lim- dental functions other than care of an ited to the treatment of acute medical emergency or elective nature. and surgical conditions, exclusive of (cc) Supplemental care or services. nervous, mental, or contagious dis- When medical or dental management is eases, or those requiring domiciliary retained by a naval MTF and required care. Routine dental care, other than care is not available at the facility re- dental prosthesis or orthodontia, may taining management, any additional be rendered on a space available basis material, professional diagnostic or outside the continental limits of the consultative services, or other personal United States and in Alaska, Provided, services ordered by qualified uniformed such services are not otherwise avail- service providers, and obtained for the able in reasonably accessible and ap- care of that patient are supplemental. propriate non-Federal facilities.

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(b) Priorities. When care cannot be will prevail. Make no distinction as to rendered to all eligible beneficiaries, the sponsoring uniformed service when the priorities in the following chart 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.

§ 728.4 Policies. on the initiation of collection action (a) Admissions to closed psychiatric on pay patients. wards. Admit patients to closed psy- (d) Convalescent leave. Convalescent chiatric wards only when they have a leave, a period of authorized absence of psychiatric or emotional disorder active duty members under medical which renders them dangerous to care when such persons are not yet fit themselves or others, or when a period for duty, may be granted by a mem- of careful closed psychiatric observa- ber’s commanding officer (CO) or the tion is necessary to determine whether hospital’s CO per the following: such a condition exists. When a patient (1) Unless otherwise indicated, grant is admitted to a closed psychiatric such leave only when recommended by ward, the reason for admission must be COMNAVMEDCOM through action clearly stated in the patient’s clinical taken upon a report by a medical record by the physician admitting the board, or the recommended findings of patient to the ward. These same poli- a physical evaluation board or higher cies apply equally in those instances authority. when it becomes necessary to place a (2) Member’s commanding officer patient under constant surveillance (upon advice of attending physician); while in an open ward. commanding officers of Navy, Army, or (b) Absence from the sick list. See Air Force medical facilities; com- § 728.4 (d), (x), and (y). (c) Charges and collection. Charges for manders of regional medical commands services rendered vary and are set by for persons hospitalized in designated the Office of the Assistant Secretary of USTFs or in civilian facilities within Defense (Comptroller) and published in their respective areas of authority; and a yearly NAVMEDCOMNOTE 6320, managers of Veterans Administration (Cost elements of medical, dental, sub- hospitals within the 50 United States sistence rates, and hospitalization or in puerto Rico may grant convales- bills). Billing and collection actions cent leave to active duty naval pa- also vary according to entitlement or tients, with or without reference to a eligibility and are governed by the pro- medical board, physical evaluation visions of NAVMED P-5020, Resource board, or higher authority provided Management Handbook. See subpart J the:

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(i) Convalescent leave is being grant- which would be considered by the aver- ed subsequent to a period of hos- age prudent observer to be within the pitalization. broad range of ‘‘normal’’ and acceptable (ii) Member is not awaiting discipli- variation for age or ethnic origin, and nary action or separation from the in addition, is performed for a condi- service for medical or administrative tion which is judged by competent reasons. medical opinion to be without poten- (iii) Medical officer in charge: tial for jeopardy to physical or mental (A) Considers the convalescent leave health of an individual. beneficial to the patient’s health. (2) Commanding officers will mon- (B) Certifies that the patient is not itor, control, and assure compliance fit for duty, will not need hospital with the following cosmetic surgery treatment during the contemplated policy: convalescent leave period, and that (i) Certain cosmetic procedures are a such leave will not delay final disposi- necessary part of training and retention of the patient. tion of skills to meet the requirements (3) When considered necessary by the of certification and recertification. attending physician and approved on (ii) Insofar as they meet minimum an individual basis by the commander requirements and serve to improve the of the respective geographic regional skills and techniques needed for recon- medical command, convalescent leave structive surgery, the following cos- in excess of 30 days may be granted. metic procedures may be performed as The authority to grant convalescent low priority surgery on active duty leave in excess of 30 days may not be members only when time and space are redelegated to hospital commanding available. officers. Member’s permanent com- (A) Cosmetic facial rhytidectomies mand must be notified of such exten- (face lifts) will be a part of all training sions (see MILPERSMAN 3020360). programs required by certifying (4) Exercise care in granting con- boards. valescent leave to limit the duration of (B) Cosmetic augmentation such leave to that which is essential in mammaplasties will be done only by relation to diagnosis, prognosis, esti- properly credentialed surgeons and mated duration of treatment, and pa- residents within surgical training pro- tient’s probable final disposition. grams to meet requirements of certi- (5) Upon return from convalescent fying boards. leave; (f) Cross-utilization of uniformed serv- (i) Forward one copy of original or- ices facilities. To provide effective cross- ders of officers, bearing all endorse- utilization of medical and dental facili- ments, to the Commander, Naval Mili- ties of the uniformed services, eligible tary Personnel Command persons, regardless of service affili- (COMNAVMILPERSCOM) (NMPC–4) or ation, will be given equal opportunity the Commandant of the Marine Corps for health benefits. Catchment areas (CMC), as appropriate. have been established by the Depart- (ii) Make an entry on the administra- ment of Defense for each USMTF (see tive remarks page (page 13 for Navy § 728.2(d)). Eligible beneficiaries resid- personnel) of the service records of ening within such a catchment area are listed personnel indicating that con- expected to use that inpatient facility valescent leave was granted and the for care. Make provisions to assure dates of departure and return. that: (6) lf considered beneficial to the pa- (1) Eligible beneficiaries residing in a tient’s health, commanding officers of catchment area served by a USMTF hospitals may grant convalescent leave not of the sponsor’s own service may as a delay in reporting back to the par- obtain care at that facility or at a fa- ent command. cility of the sponsor’s service located (e) Cosmetic surgery. (1) Defined as in another catchment area. that surgery which is done to revise or (2) If the facility to which an eligible change the texture, configuration, or beneficiary applies cannot furnish relationship of contiguous structures needed care, the other facility or facili- of any feature of the human body ties in overlapping catchment areas are

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contacted to determine whether care MTF operation and maintenance funds can be provided thereat. as authorized in subpart § 728.4(z). (g) Disengagement. Discontinuance of (ii) When a decision is made to dis- medical management by a naval MTF engage a CHAMPUS-eligible indi- for only a specific episode of care. vidual, commanding officers (CO) or of- (1) General. Disengagement is accom- ficers-in-charge (OIC) are responsible plished only after alternative sources for assuring that counseling and docu- of care (i.e., transfer to another mentation of counseling are appro- USMTF, a USTF, or other Federal priately accomplished. Complete a source via the aeromedical evacuation NAVMED 6320/30. Disengagement for system, if appropriate) and attendant Civilian Medical Care, to document costs, if applicable, have been fully ex- that all appropriate disengagement plained to patient or responsible family member. Counselors may arrange procedures have been accomplished. for counseling by other appropriate (iii) After obtaining the signature of sources when the patient is or may be the patient or responsible family mem- eligible for VA, Medicare, MEDICAID, ber, the counselor will file a copy of etc. benefits. With the individual’s per- the DD 2161 and the original of the mission, counselors may also contact NAVMED 6320/30 in the patient’s State programs, local health organiza- Health Record. tions, or health foundations to deter- (3) Patients other than active duty or mine if care is available for the condi- CHAMPUS-eligible individuals—(i) Cat- tion upon which disengagement is egories of patients. The following are based. After the disengagement deci- categories of individuals who also may sion is made, the patient to be dis- be disengaged: engaged or the responsible family (A) Medicare-eligible individuals. member should be advised to return to (B) MEDICAID-eligible individuals. the naval MTF for any care required (C) Civilians (U.S. and foreign) ad- subsequent to receiving the care that mitted or treated as civilian humani- necessitated disengagement. tarians. (2) CHAMPUS-eligible individuals. (i) Issue a Nonavailability Statement (DD (D) Secretarial designees. 1251) per § 728.33, when appropriate, to (E) All other individuals, with or patients released to civilian sources for without private insurance, who are not total care (disengaged) under eligible for care at the expense of the CHAMPUS. CHAMPUS-eligible pa- Government. tients disengaged for total care, who do (ii) Disengagement decision. Disengage not otherwise require a DD 1251 (re- such individuals when: leased for outpatient care or those re- (A) Required services are beyond the leased whose residence is outside the capability of the MTF, and services inpatient catchment area of all necessary for continued treatment in USMTFs and USTFs) will be given the the MTF cannot be appropriately pro- original of a properly completed DD vided by another USMTF, a USTF, or 2161, Referral For Civilian Medical another Federal source. (Explore alter- Care, which clearly indicates that the native sources, for individuals eligible patient is released for total care under for care from these sources, before CHAMPUS. CHAMPUS-eligible bene- making the disengagement decision.) ficiaries will be disengaged for services (B) The MTF cannot, within the fa- under CHAMPUS when: cility’s capability, effectively provide (A) Required services are beyond your capability and these services can- required care or manage the overall not be appropriately provided through course of treatment even if augmented one of the alternatives listed in by services procured from other Gov- § 728.4(z), or ernment sources or through procure- (B) You cannot effectively provide re- ment from civilian sources using sup- quired services or manage the overall plemental care funding. course of care even if augmented by (iii) Counseling. The initial step in services procured from other Govern- the disengagement process is appro- ment or civilian sources using naval priate counseling and documentation.

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In an emergency, or when the indi- erly counsel and document counseling vidual cannot be appropriately coun- may result in the naval MTF having to seled prior to leaving the MTF, estab- absorb the cost of the entire episode of lish procedures to ensure counseling care. Document counseling on a and documentation are accomplished NAVMED 6320/30. Disengagement for during the next working day. Such Civilian Medical Care. Completion of ‘‘follow-up’’ counseling may be in per- all items on the form assures docu- son or via a witnessed telephone con- mentation and written acknowledge- versation. In either instance, the coun- ment of appropriate disengagement and selor will document counseling on a counseling. If the patient or respon- NAVMED 6320/30, Disengagement for sible family member refuses to ac- Civilian Medical Care. The disengage- knowledge receipt of counseling by ment decision making authority must signing the form, state this fact on the assure the accomplishment of coun- bottom of the form and have it wit- seling by personally initiating this nessed by an officer. Give the patient service or by referring the patient or or responsible family member a copy responsible family member to the HBA and immediately file the original in for counseling. As a minimum, coun- the patient’s Health Record. seling will consist of: (4) Active duty members. When an ac- (A) Explaining that the patient is tive duty member seeks care at a being disengaged from treatment at USMTF, that USMTF retains some re- the facility and the reason therefor. sponsibility (e.g., notification, medical Assure that the individual understands cognizance, supplemental care, etc.) for the meaning of disengagement by ex- ‘‘ ’’ that member even when the member plaining that the MTF is unable to pro- must be transferred to another facility vide for the patient’s present needs and for care. Therefore, relinquishment of must therefore relinquish medical total management of an active duty management of the patient to a health member (disengagement) cannot be ac- care provider of the individual’s choice. complished. (B) Assuring the individual that the disengagement action is taken to pro- (h) Domiciliary/custodial care. The vide for the patient’s immediate med- type of care designed essentially to as- ical needs. Also assure that the indi- sist an individual in meeting the nor- vidual understands that the disengage- mal activities of daily living, i.e., serv- ment is not indicative of whether care ices which constitute personal care is or will be available in the MTF for such as help in walking and getting in other aspects of past, current, or future or out of bed, help in bathing, dressing, medical conditions. feeding, preparation of special diets, (C) Explaining Medicare, MEDICAID, and supervision over medications or other known programs as they re- which can usually be self-administered late to the particular circumstance of and which does not entail or require the patient, including cost-sharing, the continuing attention of trained deductibles, allowable charges, partici- medical or paramedical personnel. The pating and authorized providers, physi- essential characteristics to be consid- cians accepting assignment, claim fil- ered are the level of care and medical ing procedures, etc. Explain that once supervision that the patient requires, disengagement is accomplished, the rather than such factors as diagnosis, Navy, is not responsible for any costs type of condition, or the degree of func- for care received from a health care tional limitation. Such care will not be provider of the patient’s or responsible provided in naval MTFs except when family member’s choice. required for active duty members of (iv) Documentation. Commanding offi- the uniformed services. cers are responsible for ensuring that (i) Emergency care. Treat patients au- proper documentation procedures are thorized only emergency care and started and that providers and coun- those admitted as civilian emergencies selors under their commands are ap- only during the period of the emer- prised of their individual responsibil- gency. Initiate action to effect appro- ities for counseling and documenting priate disposition of such patients as each disengagement. Failure to prop- soon as the emergency period ends.

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(j) Evaluation after admission. Evalu- (m) Grouping of patients. Group hos- ate each patient as soon as possible pitalized patients according to their re- after admission and continue reevalua- quirements for housing, medical, or tion until disposition is made. Antici- dental care. Provide gender identified pate each patient’s probable type and quarters, facilities, and professional su- date of disposition. Necessary proc- pervision on that basis when appro- essing by the various medical and ad- priate. Individuals who must be re- ministrative entities will take place tained under limited medical super- concurrently with treatment of the pa- vision (medical hold) solely for admin- tient. Make the medical disposition de- istrative reasons or for medical condi- cision as early as possible for U.S. mili- tions which can be treated on a clinic tary patients inasmuch as immediate basis will be provided quarters and transfer to a specialized VA center or messing facilities, where practicable, to a VA spinal cord injury center may separately from those hospitalized. be in their best interest (see Provide medical care for such patients NAVMEDCOMINST 6320.1.2). Make dis- on a periodic clinic appointment basis position decisions for military per- (see § 728.4(p) for handling enlisted con- sonnel of NATO nations in conform- valescent patients). Make maximum ance with § 728.42(d). use of administrative versus medical (k) Extent of care. Subject to the re- personnel in the supervision of such pa- strictions and priorities in § 728.3, eligi- tients. ble persons will be provided medical (n) Health benefits advising—(1) Gen- and dental care to the extent author- eral. A Health Benefits Advising pro- ized, required, and available. When an gram must be started at all shore com- individual is accepted for care, all care mands having one or more medical offi- and adjuncts thereto, such as non- cers. While health benefits advisors are standard supplies, as determined by the not required aboard every ship with a CO to be necessary, will be provided medical officer, the medical depart- from resources available to the CO un- ment representative can usually pro- less specifically prohibited elsewhere vide services to personnel requiring in this part. When a patient has been help. The number of health benefits ad- accepted and required care is beyond visors (HBAs) of a command will be the capability of the accepting MTF, commensurate with counseling and as- the CO thereof will arrange for the resistance requirements. The program quired care by one of the means shown provides health benefits information below. The method of choice will be and counseling to beneficiaries of the based upon professional considerations Uniformed Services Health Benefits and travel economy. Program (USHBP) and to others who (1) Transfer the patient per may or may not qualify for care in § 728.4(bb). USMTFs. Office location of HBAs, their (2) Procure from civilian sources the names, and telephone numbers will be necessary material or professional per- widely publicized locally. If additional sonal services required for the patient’s help is required, contact MEDCOM–333 proper care and treatment. on AUTOVON 294–1127 or commercial (3) Care authorized in § 728.4(k)(2) will (202) 653–1127. In addition to the duties normally be accomplished in the naval described in § 728.4(n)(2), HBAs will: MTF. However, when such action is not (i) Maintain a depository of up-to- feasible, supplementation may be ob- date officially supplied health benefits tained outside the facility. Patients information for availability to all may be sent to other Federal or civil- beneficiaries. ian facilities for specific treatment or (ii) Provide information and guidance services under § 728.4(k)(3) provided they to beneficiaries and generally support remain under medical management of the medical and dental staff by pro- the CO of the sending facility during viding help to eligible beneficiaries the entire period of care. seeking or obtaining services from (l) Family planning services. Provide USMTFs, civilian facilities, VA facili- family planning services following the ties, Medicare, MEDICAID, and other provisions of SECNAVINST 6300.2A. health programs.

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(iii) Assure that when a referral or arrange for a completed copy of the DD disengagement is required, patients or 2161 to be returned to the naval MTF responsible family members are: for payment, if appropriate, and inclu- (A) Fully informed that such action sion in patient’s medical record. is taken to provide for their immediate (iv) Brief patient or responsible fam- medical or dental requirements and ily member on the use of the DD 2161 in that the disengagement or referral has USMTF payment procedures and no bearing on whether care may be CHAMPUS claims processing, as appro- available in the naval MTF for other priate. Provide sufficient copies of DD aspects of current or other future med- 2161 and explain that CHAMPUS con- ical conditions. tractors will return claims submitted (B) Provided the services and coun- without a required DD 2161. Obtain sig- seling outlined in § 728.4(n)(2) or nature of patient or responsible family § 728.3(g)(3)(ii), as appropriate, prior to member on the form. their departure from the facility when such beneficiaries are referred or dis- (v) Arrange for counseling from ap- engaged because care required is be- propriate sources when the patient is yond the naval MTF’s capability. In an eligible for VA, Medicare, or MED- emergency, or when the patient or ICAID benefits. sponsor cannot be seen by the HBA (vi) Serve as liaison between civilian prior to leaving, provide these benefits providers and naval MTF on adminis- as soon thereafter as possible. trative matters related to the referral (2) Counseling and assisting and disengagement process. CHAMPUS-eligible individuals. HBAs, as (vii) Serve as liaison between naval a minimum, will: MTF and cooperative care coordinators (i) Explain alternatives available to on matters relating to care provided or the patient. recommended by naval MTF providers, (ii) If appropriate, explain CHAMPUS as appropriate. as it relates to the particular cir- (viii) Explain why the patient is cumstance, including the cost-sharing being disengaged and, per § 728.4(g)(2), provisions applicable to the patient, al- provide a DD 1251, Nonavailability lowable charges, provider participa- Statement, or DD 2161, Referral For Ci- tion, and claim filing procedures. Fully vilian Medical Care, as appropriate. inform the patient or responsible fam- (o) Immunizations. Administer immu- ily member that when a patient is dis- nizations per BUMED INST 6230.1H. engaged for care under CHAMPUS or (p) Medical holding companies. Medical when cooperative care is to be consid- holding companies (MHC) have been es- ered for payment under the provisions tablished at certain activities to facili- of § 728.4(z) (5) and (6), the naval MTF is tate handling of enlisted convalescent not responsible for monetary amounts patients whose medical conditions are above the CHAMPUS-determined allowable charge or for charges such that, although they cannot be re- CHAMPUS does not allow. turned to full duty, they can perform (iii) Explain why the naval MTF is light duty ashore commensurate with paying for the supplemental care, if ap- their condition while completing their propriate (see § 728.4(z) (3) and (4)), and medical care on an outpatient basis. how the bill will be handled. Then: Where feasible, process such patients (A) Complete a DD 2161, Referral For for transfer. Civilian Medical Care, marking the ap- (q) Notifications. The interests of the propriate source of payment with the Navy, Marine Corps, and DOD have concurrence of the naval MTF com- been adversely affected by past proce- manding officer or CO’s designee. dures which emphasized making notifi- (B) If referred for a specified proce- cations only when an active duty mem- dure with a consultation report to be ber’s condition was classed as either se- returned to the naval MTF retaining riously ill or injured or classed as very medical management, annotate the DD seriously ill or injured. However, even 2161 in the consultation report section temporary disabilities which preclude to state this requirement. Advise pa- communication with the next of kin tient or responsible family member to have generated understandable concern

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and criticism, especially when emer- (iv) Additional commands to apprise. gency hospitalization has resulted. Ac- The geographic naval medical region cordingly, naval MTFs will effect pro- serving the hospital and, if different, cedures to make notifications required the one serving the officer’s command in § 728.4(q) (2), (3), and (4) upon admis- will also be apprised of such admission or diagnosis of individuals speci- sions. fied. The provisions of § 728.4(q) supple- (3) Active duty members—(i) Notifica- ment articles 1810520 and 4210100 of the tion of member’s command. The com- Naval Military Personnel Manual and manding officer of naval medical treat- chapter 1 of Marine Corps Order ment facilities has responsibility for P3040.4B, Marine Corps Casualty Proce- notifying each member’s commanding dures Manual; they do not supersede officer under the conditions listed them. below. Make COMNAVMILPERS COM (1) Privacy Act. The right to privacy or CMC, as appropriate, information of individuals for whom hospitalization addressees on their respective per- reports and other notifications are sonnel: made will be safeguarded as required (A) Direct admissions. Upon direct ad- by the Privacy Act, implemented in mission of an active duty member, the Department of the Navy by with or without orders regardless of ex- SECNAVINST 5211.5C, U.S. Navy Regu- pected length of stay. The patient ad- lations, the Manual of the Judge Advo- ministration department (administra- cate General, the Marine Corps Cas- tive watch officer after hours) is re- ualty Procedures Manual, and the Man- sponsible for preparation, per ual of the Medical Department. § 728.4(q)(4), and release of these mes- (2) Active duty flag or general officers sages. If the patient is attached to a and retired Marine Corps general officers. local command (CO’s determination), Upon admission of subject officers, initial notification may be made tele- make telephonic contact with phonically. Record the name, grade or MEDCOM–33 on AUTOVON 294–1179 or rate, and position of the person receiv- commercial (202) 653–1179 (after duty ing the call at the member’s command hours, contact the command duty offi- on the back of the NAVMED 6300/5, In- cer on AUTOVON 294–1327 or commer- patient Admission/Disposition Record cial (202) 653–1327) to provide the fol- and include the name and telephone lowing information: number of the MTF’s point of contact (i) Initial. Include in the initial re- as given to the patient’s command. port: (B) Change in medical condition. Upon becoming aware of any medical condi- (A) Officer’s name, grade, social secu- tion, including pregnancy, which will rity number, and designator. now or in the foreseeable future result (B) Duty assignment in ship or sta- in the loss of a member’s full duty tion, or other status. services in excess of 72 hours. Transmit (C) Date of admission. this information in a message, pre- (D) Present condition, stating if seri- pared per § 728.4(q)(4), marked ‘‘Com- ous or very serious. manding Officer’s Eyes Only.’’ (E) Diagnosis, prognosis, and esti- (ii) Notification of next of kin (NOK)— mated period of hospitalization. To (A) Admitted members. As part of the ad- prevent possible invasion of privacy, mission procedure, encourage all pa- report the diagnosis only in Inter- tients to communicate expeditiously national Classification of Diseases—9th and regularly with their NOK. When an Edition (ICD–9–CM) code designator. active duty member’s incapacity (ii) Progress reports. Call frequency makes timely personal communication and content will be at the discretion of impractical, i.e., fractures, burns, eye the commanding officer. However, pathology, psychiatric or emotional promptly report changes in condition disorders, etc., MTF personnel will ini- or status. tiate the notification process. Do not (iii) Termination report. Make a termi- start the process if the patient specifi- nation of hospitalization report to pro- cally declines such notification or it is vide appropriate details for informa- clear that the NOK already has knowl- tional purposes. edge of the admission (commands

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should develop a local form for such pa- Corps personnel hospitalized in naval tients to sign attesting their desire or MTFs outside the contiguous 48 States refusal to have their NOK notified). to the individual’s command. If the Once notification has been made, the command is unknown or not located in facility will make progress reports, at close proximity to the MTF, notify least weekly, until the patient is again CMC (MHP–10). When initial notifica- able to communicate with the NOK. tion to the individual’s command is (1) Navy personnel. Upon admission of made via message, make CMC (MHP– Navy personnel, effect the following 10) an information addressee. notification procedures. (iii) In and outside the United States. In (i) In the contiguous 48 states. Patient life-threatening situations, the Com- administration department personnel mandant of the Marine Corps desires will notify the NOK in person, by tele- and encourages medical officers to phone, telegraph, or by other expedi- communicate with the next of kin. In tious means. Included are notifications other circumstances, request that the of the NOK upon arrival of all Navy pa- Marine Corps member communicate tients received in the medical air-evac- with the NOK if able. If unable, the uation system. medical officer should communicate (ii) Outside the contiguous 48 states. If with the NOK after personal notifica- the next of kin has accompanied the tion has been effected. patient on the tour of duty and is in (B) Terminally ill patients. As soon as the immediate area, hospital personnel a diagnosis is made and confirmed (on will notify the next of kin in person, by inpatients or outpatients) that a Navy telephone, telegraph, or by other expe- member is terminally ill, ditious means. If the next of kin is lo- MILPERSMAN 4210100 requires notifi- cated in the 48 contiguous United cation of the primary and secondary States, use telegraphic means to notify next of kin. Accomplish notification COMNAVMILPERSCOM who will pro- the same as for Navy members admit- vide notification to the NOK. ted as seriously or very seriously ill or (2) Marine Corps personnel. When Ma- injured, i.e., by priority message to the rine Corps personnel are admitted, ef- Commander, Naval Military Personnel fect the following notification proce- Command and to the Casualty Assist- dures. ance Calls/Funeral Honors Support (i) In the contiguous 48 states. The Program Coordinator, as appropriate, commander of the unit or activity to who has cognizance over the geo- which the casualty member is assigned graphical area in which the primary is responsible for initiating notification procedures to the NOK of seriously and secondary NOK resides (see or very seriously ill or injured Marine OPNAVINST 1770.1). Submit followup Corps personnel. Patient administra- reports when appropriate. See tion department personnel will assure MILPERSMAN 4210100 for further am- that liaison is established with the ap- plification and for information address- propriate command or activity when ees. such personnel are admitted. Patient (1) In the contiguous 48 states. Notifi- administration personnel will notify cation responsibility is assigned to the the Marine’s command by telephone USMTF making the diagnosis and to and request that cognizance be as- the member’s duty station if diagnosed sumed for in-person initial notification in a civilian facility. of the NOK of Marine Corps patients (2) Outside the contiguous 48 states. No- admitted with an incapacity that tification responsibility is assigned to makes personal and timely commu- the naval medical facility making the nication impractical and for those ar- diagnosis. When diagnosed in nonnaval riving via the medical air-evacuation facilities or aboard deployed naval ves- system. If a member’s command is un- sels, notification responsibility belongs known or cannot be contacted, inform to the Commander, Naval Military Per- CMC (MHP–10) on AUTOVON 224–1787 sonnel Command. or commercial (202) 694–1787. (C) Other uniformed services patients. (ii) Outside the contiguous 48 states. Establish liaison with other uniformed Make casualty notification for Marine services to assure proper notification

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upon admission or diagnosis of active sician, of a therapeutic value. Physical duty members of other services. condition, past training, and other ac- (D) Nonactive duty patients. At the quired skills must all be considered be- discretion of individual commanding fore assigning any patient a given task. officers, the provisions of § 728.4(q)(3)(ii) Do not assign patients duties which are on providing notification to the NOK not within their capabilities or which may be extended to admissions or diag- require more than a very brief period of nosis of nonactive duty patients; e.g., orientation. admission of dependents of members on (t) Prolonged definitive medical care. duty overseas. Prolonged definitive medical care in (4) Messages—(i) Content. Phrase con- naval MTFs will not be provided for tents of messages (and telephonic noti- U.S. military patients who are unlikely fications) in lay terms and provide suf- to return to duty. The time at which a ficient details concerning the patient’s patient should be processed for dis- condition, prognosis, and diagnosis. ability separation must be determined Messages will also contain the name on an individual basis, taking into con- and telephone number of the facility’s sideration the interests of the patient point of contact. When appropriate for as well as those of the Government. A addressal, psychiatric and other sen- long-term patient roster will be main- sitive diagnoses will be related with tained and updated at least once discretion. When indicated, also in- monthly to enable commanding offi- clude specific comment as to whether cers and other appropriate staff mem- the presence of the next of kin is medi- bers to monitor the progress of all pa- cally warranted. NOTE: In making noti- tients with 30 or more continuous days fication to the NOK of patients diag- of hospitalization. Include on the ros- nosed as having Acquired Immune Defi- ter basic patient identification data ciency Syndrome (AIDS) or Human Im- (name, grade or rate, register number, munodeficiency Virus (HIV), use one of ward or absent status, clinic service, the symptoms of the disease as the di- and whether assigned to a medical agnosis (e.g., pneumonia) rather than holding company), projected disposi- HIV , AIDS , or the diagnostic code ‘‘ ’’ ‘‘ ’’ tion (date, type, and profile), diagnosis, for AIDS. and cumulative hospital days (present (ii) Information addressees. Make the facility and total). commander of the geographic naval medical region servicing the member’s (u) Remediable physical defects of ac- command and the one servicing the tive duty members—(1) General. When a hospital, if different, information ad- medical evaluation reveals that a Navy dressees on all messages. For Marine or Marine Corps patient on active duty Corps personnel, also include CMC has developed a remediable defect (MHP–10) and the appropriate Marine while on active duty, the patient will Corps district headquarters as informa- be offered the opportunity of operative tion addressees, COMNAVMEDCOM repair or other appropriate remediable WASHINGTON DC requires informa- treatment, if medically indicated. tion copies of messages only when a pa- (2) Refusal of treatment. Per MANMED tient has been placed on the seriously art. 18–15, when a member refuses to ill or injured or very seriously ill or in- submit to recommended therapeutic jured list or diagnosed as terminally measures for a remediable defect or ill. condition which has interfered with the (r) Outpatient care. Whenever pos- member’s performance of duty and fol- sible, perform diagnostic procedures lowing prescribed therapy, the member and provide preoperative and post oper- is expected to be fit for full duty, the ative care, surgical care, convales- following procedures will apply: cence, and followup observations and (i) Transfer the member to a naval treatment on an outpatient basis. MTF for further evaluation and appear- (s) Performance of duties while in an ance before a medical board. After inpatient status. U.S. military patients counseling per MANMED art. 18–15, may be assigned duties in and around any member of the naval service who naval MTFs when such duties will be, refuses to submit to recommended in the judgement of the attending phy- medical, surgical, dental, or diagnostic

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measures, other than routine treat- the grounds for refusal. Forward any ment for minor or temporary disabil- statement with the board’s report. Ad- ities, will be asked to sign a completed vise the patient that even if the dis- NAVMED 6100/4, Medical Board Certifi- ability originally arose in line of duty, cate Relative to Counseling on Refusal its continuance may be attributable to of Surgery and/or Treatment, attesting the member’s unreasonable refusal to to the counseling. cooperate in its correction; and that (ii) The board will study all pertinent the continuance of the disability information, inquire into the merits of might, therefore, result in the mem- the individual’s refusal to submit to ber’s separation without benefits. treatment, and report the facts with (viii) Also advise the patient that: appropriate recommendations. (A) Title 10 U.S.C. 1207 precludes dis- (iii) As a general rule, refusal of position under chapter 61 of 10 U.S.C. if minor surgery should be considered un- such a member’s disability is due to in- reasonable in the absence of substan- tentional misconduct, willful neglect, tial contraindications. Refusal of or if it was incurred during a period of major surgical operations may be rea- unauthorized absence. A member’s re- sonable or unreasonable, according to fusal to complete a recommended ther- the circumstances, The age of the pa- apy regimen or diagnostic procedure tient, previous unsuccessful operations, may be interpreted as willful neglect. existing physical or mental contra- (B) Benefits from the Veterans Ad- indications, and any special risks ministration will be dependent upon a should all be taken into consideration. finding that the disability was incurred (iv) Where surgical procedures are in- in line of duty and is not due to the volved, the board’s report will contain member’s willful misconduct. answers to the following questions: (ix) The Social Security Act contains (A) Is surgical treatment required to special provisions relating to benefits relieve the incapacity and restore the for ‘‘disabled’’ persons and certain pro- individual to a duty status, and may it visions relating to persons disabled ‘‘in be expected to do so? line of duty’’ during service in the (B) Is the proposed surgery an estab- Armed Forces. In many instances per- lished procedure that qualified and ex- sons deemed to have ‘‘remediable’’ dis- perienced surgeons ordinarily would orders have been held not ‘‘disabled’’ recommend and undertake? within the meaning of that term as (C) Considering the risks ordinarily used in the statute, and Federal courts associated with surgical treatment, the have upheld that interpretation. One patient’s age and general physical con- who is deemed unreasonably to have dition, and the member’s reason for re- refused to undergo available surgical fusing treatment, is the refusal reason- procedures may be deemed both ‘‘not able or unreasonable? (Fear of surgery disabled’’ and to have incurred the con- or religious scruples may be consid- dition ‘‘not in the line of duty.’’ ered, along with all the other evidence, (x) Forward the board’s report di- for whatever weight may appear appro- rectly to the Central Physical Evalua- priate.) tion Board with a copy to MEDCOM–25 (v) If a member needing surgery is except in those instances when the con- mentally competent, do not perform vening authority desires referral of the surgery over the member’s protesta- medical board report for Departmental tion. review. (vi) In medical, dental, or diagnostic (xi) Per MANMED art. 18–15, a mem- situations, the board should show the ber who refuses medical, dental, or sur- need and risk of the recommended pro- gical treatment for a condition that ex- cedure(s). isted prior to entry into the service (vii) If a medical board decides that a (EPTE defect), not aggravated by a pe- diagnostic, medical, dental, or surgical riod of active service but which inter- procedure is indicated, these findings feres with the performance of duties, must be made known to the patient. should be processed for reason of phys- The board’s report will show that the ical disability, convenience to the Gov- patient was afforded an opportunity to ernment, or enlisted in error rather submit a written statement explaining than under the refusal of treatment

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provisions. Procedures are delineated (F) All DD 2161’s are properly com- in BUMEDINST 1910.2G and pleted and approved by the com- SECNAVINST 1910.4A. manding officer or designee. (3) Other uniformed services patients. (G) A copy of the completed DD 2161 When a patient of another service is is returned to the naval MTF for inclu- found to have a remediable physical de- sion in the medical record of the pa- fect developed in the military service, tient. refer the matter to the nearest head- (w) Sick call. A regularly scheduled quarters of the service concerned. assembly of sick and injured military (v) Responsibilities of the commanding personnel established to provide rou- officer. In connection with the provi- tine medical care. Subsequent to exam- sions of this part, commanding officers ination, personnel medically unfit for of naval MTFs will: duty will be admitted to an MTF or placed sick in quarters; personnel not (1) Determine which persons within admitted or placed sick in quarters the various categories authorized care will be given such treatment as is in a facility will receive treatment in, deemed necessary. When excused from be admitted to, and be discharged from duty for medical reasons which do not that specific facility. require hospitalization, military per- (2) Supervise care and treatment, in- sonnel may be authorized to remain in cluding the employment of recognized quarters, not to exceed 72 hours. professional procedures. (x) Sicklist—authorized absence from. (3) Provide each patient with the best Commanding officers of naval MTFs possible care in keeping with accepted may authorize absences of up to 72 professional standards and the assigned hours for dependents and retired per- primary mission of the facility. sonnel without formal discharge from (4) Provide for counseling patients the sicklist. When absences are author- and naval MTF providers when care re- ized in excess of 24 hours, subsistence quired is beyond the naval MTF’s capa- charges or dependent’s rate, as applicability. This includes: ble, for that period will not be col- (i) Establishing training programs to lected and the number of reportable oc- acquaint naval MTF providers and cupied bed days will be appropriately HBAs with the uniformed services’ re- reduced. Prior to authorizing such ab- ferral for supplemental/cooperative sences, the attending physician will ad- care or services policy outlined in vise patients of their physical limita- § 728.4(z). tions and of any necessary safety pre- (ii) Implementing control measures cautions, and will annotate the clinical to ensure that: record that patients have been so ad- (A) Providers requesting care under vised. For treatment under the Medical the provisions § 728.4(z) are qualified to Care Recovery Act, make reporting consistent with § 728.4(aa). maintain physician case management (y) Subsisting out. A category in when required. which officer and enlisted patients on (B) Care requested under the supple- the sicklist of a naval MTF may be mental/cooperative care criteria is placed when their daily presence is not medically necessary, legitimate, and required for treatment nor examina- otherwise permissible under the terms tion, but who are not yet ready for re- of that part of the USHBP under which turn to duty. As a general rule, pa- it will be considered for payment. tients placed in this category should (C) Providers explain to patients the reside in the area of the facility and reason for a referral and the type of re- should be examined by the attending ferral being made. physician at least weekly. Enlisted per- (D) Attending physicians properly sonnel in a subsisting out status should refer beneficiaries to the HBA for coun- be granted commuted rations. seling and services per § 728.4(n). (1) Granting of subsisting out privi- (E) Uniform criteria are applied in leges is one of many disposition alter- determining cooperative care situa- natives; however, recommend that tions without consideration of rate, other avenues (medical holding com- grade, or uniformed service affiliation. pany, convalescent leave, limited duty,

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etc.) be considered before granting this (iv) Phychiatric or psychotherapeutic privilege. services. If psychiatric care is being ren- (2) Naval MTF patients in a sub- dered by a psychiatric or clinical social sisting out status should not be con- worker, a psychiatric nurse, or a mar- fused with those enlisted personnel in a riage and family counselor, and the rehabilitation program who are grant- uniformed services facility has made a ed liberty and are drawing commuted determination that it does not have rations, but are required to be present the professional staff competent to pro- at the treating facility during normal vide required physician case manage- working hours. These personnel are not ment, the patient may be (partially) subsisting out and must have a bed as- disengaged for the psychiatric or psy- signed at the naval MTF. chotherapeutic service, yet have the (3) Naval MTF patients who are re- remainder of required medical care quired to report for examinations or provided by the naval MTF. treatment more often than every 48 (v) Forms and documentation. A DD hours should not be placed in a sub- 2161, Referral For Civilian Medical sisting out status. Care, will be provided to each patient (z) Supplemental/cooperative care or who is to receive supplemental or coop- services—(1) General. When such serv- erative care or services. When supple- ices as defined in § 728.2(cc) are ren- mental care is required under the provisions of § 728.4(z) (3) and (4), the provi- dered to other than CHAMPUS-eligible sions of § 728.4(z)(3)(iii) apply. When co- individuals, the cost thereof is charge- operative care or services are required able to operation and maintenance under the provisions of § 728.4(z) (5) and funds available for operation of the fa- (6), the provisions of § 728.4(z)(5)(iv) cility requesting care or services. Co- apply. operative care applies to CHAMPUS-el- (vi) Clarification of unusual cir- igible patients receiving inpatient or cumstances. Commanding officers of outpatient care in a USMTF who re- naval MTFs will submit requests for quire care or services beyond the capa- clarification of unusual circumstances bility of that USMTF. The following to OCHAMPUS or CHAMPUS contrac- general principles apply to such tors via the Commander, Naval Med- CHAMPUS-eligible patients: ical Command (MEDCOM–33) for con- (i) Cooperation of uniformed services sideration. physicians. USMTF physicians are re- (2) Care beyond a naval MTF’s capa- quired to cooperate in providing bility. When, either during initial eval- CHAMPUS contractors and uation or during the course of treat- OCHAMPUS additional medical infor- ment of CHAMPUS-eligible bene- mation. SECNAVINST 5211.5C delin- ficiaries, required services are beyond eates policies, conditions, and proce- the capability of the naval MTF, the dures that govern safeguarding, using, commanding officer will arrange for accessing, and disseminating personal the services from an alternate source information kept in a system of in the following order, subject to re- records. Providing information to strictions specified. The provisions of CHAMPUS contractors and § 728.4(z)(2)(i) through (iii) must be fol- OCHAMPUS will be governed thereby. lowed before either supplemental care, (ii) Physician case management. Where authorized in § 728.4(z)(4), is considered required by NAVMEDCOMINST 6320.18 for payment from Navy Operations and (CHAMPUS Regulation; implementa- Maintenance funds, or cooperative tion of), uniformed services physicians care, authorized in § 728.4(z)(6), is to be are required to provide case manage- considered for payment under the ment (oversight) as would an attending terms of CHAMPUS. or supervising civilian physician. (i) Obtain from another USMTF or (iii) CHAMPUS-authorized providers. other Federal MTF the authorized care CHAMPUS contractors are responsible necessary for continued treatment of for determining whether a civilian pro- the patient within the naval MTF, vider is CHAMPUS-authorized and for when such action is medically feasible providing such information, upon re- and economically advantageous to the quest, to USMTFs. Government.

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(ii) When the patient is a retired (v) Naval MTF physicians will main- member or dependent, transfer per tain professional contact with civilian § 728.4(bb)(3) (i), (ii), (iii), or (iv), in that providers. order. When the patient is a dependent (4) Care and services authorized. Use of a member of a NATO nation, trans- local operation and maintenance funds fer per § 728.4(bb)(4) (i), (ii), or (iii), in to defray the cost of the following that order. when CHAMPUS-eligible patients are (iii) With the patient’s permission, referred to civilian sources for the fol- the naval MTF may contact State pro- lowing types of care or services; grams, local health agencies, or health (i) All specialty consultations for the foundations to determine if benefits purpose of establishing or confirming are available. diagnoses or recommending a course of (iv) Obtain such supplemental care or treatment. services as delineated in § 728.4(z)(4) (ii) All diagnostic tests, diagnostic from a civilian source using local oper- examinations, and diagnostic proce- ation and maintenance funds, or dures (including genetic tests and CAT (v) Obtain such cooperative care or scans), ordered by qualified USMTF services as delineated in § 728.4(z)(6) providers. from a civilian source under the terms (iii) Prescription drugs and medical of CHAMPUS. supplies. (3) Operation and maintenance funds. (iv) Civilian ambulance service or- When local operation and maintenance dered by USMTF personnel. funds are to be used to obtain supple- (5) CHAMPUS funds. When payment mental care or services, the following is to be considered under the terms of guidelines are applicable: CHAMPUS for cooperative care, even (i) Care or services must be legiti- though the beneficiary remains under mate, medically necessary, and ordered naval MTF control, the following by a qualified USMTF provider. guidelines are applicable: (ii) The naval MTF must make the (i) Process charges for care under the necessary arrangements for obtaining terms of CHAMPUS. required care or services from a spe- (A) If the charge for a covered service cific source of care. or supply is above the CHAMPUS-de- (iii) Upon approval of the naval MTF termined reasonable charge, the direct commanding officer or designee, pro- care system will not assume any liabil- vide the patient or sponsor with a prop- ity on behalf of the patient where a ci- erly completed DD 2161, Referral For vilian provider is concerned, although Civilian Medical Care. The DD 2161 will a USMTF physician recommended or be marked by the health benefits advi- prescribed the service or supply. sor or other designated individual to (B) Payment consideration for all show the naval MTF as the source of care or services meeting cooperative payment. Forward a copy to the MTF’s care criteria will be under the terms of contracting or supply officer who is the CHAMPUS and payment for such care point of contact for coordinating obli- or services will not be made from naval gations with the comptroller and thus MTF funds. Conversely, any care or is responsible for assuring proper proc- services meeting naval MTF supple- essing for payment. mental care or services payment cri- (iv) Authorize care on an inpatient or teria will not be considered under the outpatient basis for the minimum pe- terms of CHAMPUS. riod necessary for the civilian provider (ii) Care must be legitimate and oth- to perform the specific test, procedure, erwise permissible under the terms of treatment, or consultation requested. CHAMPUS and must be ordered by a Patients receiving inpatient services in qualified USMTF provider. civilian medical facilities will not be (iii) Provide assistance to bene- counted as an occupied bed in the naval ficiaries referred or disengaged under MTF, but will be continued on the CHAMPUS. Although USMTF per- naval MTF’s inpatient census. Con- sonnel are not authorized to refer bene- tinue to charge pay patients the ficiaries to a specific civilian provider USMTF inpatient rate appropriate for for care under CHAMPUS, health bene- their patient category. fits advisors are authorized to contact

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the cooperative care coordinator of the and services under the CHAMPUS Pro- appropriate CHAMPUS contractor for gram for the Handicapped. USMTF pro- aid in determining authorized providers exercising physician case man- viders with the capability of rendering agement responsibility for ancillary required services. Such information services under CHAMPUS are subject may be given to beneficiaries. Also en- to the same benefit limitations and courage beneficiaries to obtain recertification of need requirements ap- quired services only from providers plicable to civilian providers under the willing to participate in CHAMPUS. terms of CHAMPUS for the same types Subject to the availability of space, fa- of care. USMTF physicians exercising cilities, and capabilities of the staff, physician case management responsi- USMTFs may provide consultative and bility will maintain professional con- such other ancillary aid as required by tact with civilian providers of care. the civilian provider selected by the (6) Care and services authorized. Refer beneficiary. CHAMPUS-eligible patients to civilian (iv) Provide a properly completed DD sources for the following under the 2161, Referral For Civilian Medical terms of CHAMPUS: Care, to patients who are referred (i) Authorized nondiagnostic medical (versus disengaged) to civilian sources services such as physical therapy, under the terms of CHAMPUS for coop- speech therapy, radiation therapy, and erative care. (A Nonavailability State- private duty (special) nursing. ment (DD 1251) may also be required. (ii) Preauthorized (by OCHAMPUS) Provide this form when required under adjunctive dental care, including or- § 728.33.) The DD 2161 will be marked by thodontia related to surgical correc- the health benefits advisor, or other tion of cleft palate. designated individual, to show (iii) Durable medical equipment. CHAMPUS as the source of payment (CHAMPUS payment will be considered consideration. All such DD 2161’s must only if the equipment is not available be approved by the commanding officer on a loan basis from the naval MTF.) or designee. Give the patient sufficient (iv) Prosthetic devices (limited ben- copies to ensure a copy of the DD 2161 efit), orthopedic braces and appliances. accompanies each CHAMPUS claim. (v) Optical devices (limited benefit). Advise patients that CHAMPUS con- (vi) Civilian ambulance service to a tractors will return claims received USMTF when service is ordered by without the DD 2161. Also advise pa- other than direct care personnel. tients to arrange for return of a com- (vii) All CHAMPUS Program for the pleted copy of the DD 2161 to the naval Handicapped care. MTF for inclusion in their medical (viii) Psychotherapeutic or psy- record. chiatric care. (v) Such patients receiving inpatient (ix) Except for those types of care or or outpatient care or services will pay services delineated in § 728.4(z)(4), all the patient’s share of the costs as spec- other CHAMPUS authorized medical ified under the terms of CHAMPUS for services not available in the naval their beneficiary category. Patients re- MTF (for example, neonatal intensive ceiving inpatient services will not be care). continued on the naval MTF’s census (aa) Third party liability case. Per and will not be charged the USMTF in- chapter 24, section 2403, JAG Manual, patient rate. use the following guidelines to com- (vi) Certain ancillary services au- plete and submit a NAVJAG 5890/12, thorized under CHAMPUS require phy- Hospital and Medical Care, 3rd Party sician case management during the Liability Case, when a third party may course of treatment. USMTF physi- be liable for the injury or disease being cians will manage the provision of an- treated: cillary services by civilian providers (1) Preparation. All naval MTFs will when such services are obtained under use the front of NAVJAG 5890/12 to re- the terms of CHAMPUS. Examples in- port the value of medical care fur- clude physical therapy, private duty nished to any patient when (i) a third (special) nursing, rental or lease/pur- party may be legally liable for causing chase of durable medical equipment, the injury or disease, or (ii) when a

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Government claim is possible under final) directly to the appropriate of the workmen’s compensation, no-fault in- following: surance (see responsibilities for appris- (A) U.S. Army. Commanding general ing the insurance carrier in of the Army or comparable area com- § 728.4(aa)(5)), uninsured motorist insur- mander in which the incident occurred. ance, or under medical payments insur- (B) U.S. Air Force. Staff judge advo- ance (e.g., in all automobile accident cate of the Air Force installation near- cases). Block 4 of this form requires an est the location where the initial med- appended statement of the patient or ical care was provided. an accident report, if available. Prior (C) U.S. Coast Guard. Commandant to requesting such a statement from a (G–K–2). U.S. Coast Guard, Washington, patient, the person preparing the front DC 20593–0001. side of NAVJAG 5890/12 will show the (D) Department of Labor. The appro- patient the Privacy Act statement priate Office of Workers’ Compensation printed at the bottom of the form and Programs (OWCP). have the patient sign his or her name (E) Veterans Administration. Director beneath the statement. of the Veterans Administration hos- (2) Submission—(i) Naval patients. For pital responsible for medical care of naval patients, submit the completed the patient being provided treatment. front side of the NAVJAG 5890/12 to the (F) Department of Health and Human appropriate action JAG designee listed Services (DHHS). Regional attorney’s in section 2401 of the JAG Manual at office in the area were the incident oc- the following times: curred. (A) Initial. Make an initial submis- (3) Supplementary documents. An SF sion as soon as practicable after a pa- 502 should accompany the final submis- tient is admitted for any period of in- sion in all cases involving inpatient patient care, or if it appears that more care. Additionally, when Government than 7 outpatient treatments will be care exceeds $1,000, inpatient facilities furnished. This submission should not should complete and submit the back be delayed pending the accumulation side of NAVJAG 5890/12 to the action of all potential charges from the treat- JAG designee. On this side of the form, ing facility. This submission need not the determination of ‘‘patient status’’ be based upon an extensive investiga- may be used on local hospital usage. tion of the cause of the injury or dis- (4) Health record entries. Retain copies ease, but it should include all known of all NAVJAG 5890/12’s in the Health facts. Statements by the patient, po- Record of the patient. Immediately no- lice reports, and similar information (if tify action JAG designees when a pa- available), should be appended to the tient receives additional treatment form. subsequent to the issuance of a final (B) Interim. Make an interim submis- NAVJAG 5890/12 if the subsequent sion every 4 months after the initial treatment is related to the condition submission until the patient is trans- which gave rise to the claim. ferred or released from the facility, or (5) No-fault insurance. When no-fault changed from an inpatient status to an insurance is or may be involved, the outpatient status. naval legal service office at which the (C) Final. Make a final submission JAG designee is located is responsible upon completion of treatment or upon for apprising the insurance carrier that transfer of the patient to another facil- the Federal payment for the benefits of ity. The facility to which the patient is this part is secondary to any no-fault transferred should be noted on the insurance coverage available to the inform. Report control symbol NAVJAG jured individual. 5890–1 is assigned to this report. (6) Additional guidance. Chapter 24 of (ii) Nonnaval patients. When care is the JAG Manual and BUMEDINST provided to personnel of another Fed- 5890.1A contain supplemental informa- eral agency or department, that agency tion. or department generally will assert (bb) Transfer of patients—(1) General. any claim in behalf of the United Treat all patients at the lowest echelon States. In such instances, submit the equipped and staffed to provide nec- NAVJAG 5890/12’s (initial, interim, and essary care; however, when transfer to

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another MTF is considered necessary, USMTF or designated USTF with re- use Government transportation when quired capability, regardless of its lo- available. Accomplish medical regu- cation. lating per the provisions of (iii) Arrange for transfer of retired OPNAVINST 4630.25B and BUMEDINST members to the Veterans Administra- 6320.1D. tion MTF nearest the patient’s resi- (2) U.S. military patients. Do not re- dence. tain U.S. military patients in acute (iv) Provide aid in releasing the pa- care MTFs longer than the minimum tient to a civilian provider of the pa- time necessary to attain the mental or tient’s choice under the terms of Medi- physical state required for return to care, if the patient is entitled. Bene- duty or separation from the service. ficiaries entitled to Medicare, Part A, When required care is not available at because they are 65 years of age or the facility providing area inpatient older or because of a disability or care, transfer patients to the most chronic renal disease, lose CHAMPUS readily accessible USMTF or des- eligibility but remain eligible for care ignated USTF possessing the required in USMTFs and designated USTFs. capability. Transportation of the pa- (v) If the patient is authorized bene- tient and a medical attendant or at- fits under CHAMPUS, disengage from tendants, if required, is authorized at medical management and issue a Non- Government expense. Since the VA is availability Statement (DD 1251) per staffed and equipped to provide care in the provisions of § 728.33, for care under the most expeditious manner, follow CHAMPUS. This step should only be the administrative procedures outlined taken after due consideration is made in NAVMEDCOMINST 6320.12 when: of the supplemental/cooperative care (i) A patient has received the max- policy addressed in § 728.4(z). imum benefit of hospitalization in a (4) Dependents of members of NATO na- naval MTF but requires a protracted tions. When a dependent, as defined in period of nursing home type care. The § 728.41, of a member of a NATO nation VA can provide this type care or ar- requires care beyond the capabilities of range for it from a civilian source for a facility and a transfer is necessary, individuals so entitled. the commanding officer of that facility (ii) Determined that there is or may may: be spinal cord injury necessitating im- (i) Arrange for transfer to another mediate medical and psychological at- USMTF or designated USTF with retention. quired capability if either is located in (iii) A patient has sustained an ap- an overlapping inpatient catchment parently severe head injury or has been area of the transferring facility. blinded necessitating immediate inter- (ii) If the patient or sponsor agrees, vention beyond the capabilities of arrange for transfer to the nearest naval MTFs. USMTF or designated USTF with re- (iv) A determination has been made quired capability, regardless of its lo- by the Secretary concerned that a cation. member on active duty has an alcohol (iii) Effect disposition per § 728.42(d). or drug dependency or drug abuse dis- (5) Others—(i) Medical care. Section 34 ability. of title 24, United States Code, provides (3) Retired members and dependents. that hospitalization and outpatient When a retired member of a dependent services may be provided outside the requires care beyond the capabilities of continental limits of the United States a facility and a transfer is necessary, and in Alaska to officers and employ- the commanding officer of that facility ees of any department or agency of the may: Federal Government, to employees of a (i) Arrange for transfer to another contractor with the United States or USMTF or designated USTF located in the contractor’s subcontractor, to de- an overlapping inpatient catchment pendents of such persons, and in emer- area of the transferring facility if ei- gencies to such other persons as the ther has the required capability. Secretary of the Navy may prescribe: (ii) If the patient or sponsor agrees, Provided, such services are not other- arrange for transfer to the nearest wise available in reasonably accessible

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and appropriate non-Federal facilities. ber annually, and situationally when Hospitalization of such persons in a changes occur. As a minimum, the re- naval MTF is further limited by 24 port will provide: U.S.C. 35 to the treatment of acute (A) Name of reporting facility. If the medical and surgical conditions, exclu- project officer is responsible for more sive of nervous, mental, or contagious than one facility, list all such facili- diseases, or those requiring domiciliary ties. care. (B) Mailing address including com- (ii) Dental care. Section 35 of title 24 plete zip code (zip + 4) and unit identi- provides for space available routine fication code (UIC). Include this infor- dental care, other than dental pros- mation for all facilities listed in thesis and orthodontia, for the cat- § 728.4(cc)(1)(iii)(A). egories of individuals enumerated in (C) Name, grade, and corps of the § 728.4(bb)(5)(i): Provided, that such DEERS project officer designated. services are not otherwise available in (D) Position title within parent facil- reasonably accessible and appropriate ity. non-Federal facilities. (E) AUTOVON and commercial tele- (iii) Transfer. Accomplish transfer phone numbers. and subsequent treatment of individ- (2) DEERS and the identification card. uals in § 728.4(bb)(5)(i) per the provi- This subpart includes DEERS proce- sions of law enumerated in § 728.4(bb)(5) dures for eligibility verification checks (i) and (ii). to be used in conjunction with the (cc) Verification of patient eligibility— identification card system as a basis (1) DEERS. (i) The Defense Enrollment for verifying eligibility for medical and Eligibility Reporting System (DEERS) dental care in USMTFs and uniformed was implemented by OPNAVINST services dental treatment facilities 1750.2. Where DEERS has been started (USDTFs). For other than emergency at naval medical and dental treatment care, certain patients are required to facilities, commanding officers will ap- have a valid ID card in their possession point, in writing, a DEERS project offi- and, under the circumstances described cer to perform at the base level. The in § 728.4(cc)(3), are also required to project officer’s responsibilities and meet DEERS criteria before treatment functions include coordinating, exe- or services are rendered. Although cuting, and maintaining base-level DEERS and the ID card system are DEERS policies and procedures; pro- interrelated, there will be instances viding liaison with line activities, where a beneficiary is in possession of base-level personnel project officers, an apparently valid ID card and the and base-level public affairs project of- DEERS verification check shows that ficers; meeting and helping the con- eligibility has terminated or vice tractor field representative on site vis- versa. Eligibility verification via an ID its to each facility under the project card does not override an indication of officer’s cognizance; and compiling and ineligibility in DEERS without some submitting reports required within the other collateral documentation. De- command and by higher authority. pendents (in possession of or without (ii) Commanding officers of afloat ID cards) who undergo DEERS check- and deployable units are encouraged to ing will be considered ineligible for the appoint a unit DEERS medical project reasons stated in § 728.4(cc)(4)(v) (A) officer as a liaison with the hospital through (G). For problem resolution, project officer providing services to refer dependents of active duty mem- local medical and dental treatment fa- bers to the personnel support detach- cilities. Distribute notice of such ap- ment (PSD) servicing the sponsor’s pointments to all concerned facilities. command; refer retirees, their depend- (iii) When a DEERS project officer ents, and survivors to the local PSD. has been appointed by a naval MTF or (3) Identification cards and procedures. DTF, submit a message (report control All individuals, including members of symbol MED 6320–42) to uniformed services in uniform, must COMNAVMEDCOM, with information provide valid identification when re- copies to appropriate chain of com- questing health benefits. Although the mand activities, no later than 10 Octo- most widely recognized and acceptable

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forms of identification are DD 1173, DD law (including step-parents and step- 2, Form PHS–1866–1, and Form PHS– parents-in-law) request care in naval 1866–3 (Ret), individuals presenting for MTFs or DTFs without a DD 1173 in care without such identification may their possession or with expired DD be rendered care upon presentation of 1173’s, render care if they or their spon- other identification as outlined in this sor sign a statement that the indi- part. Under the circumstances individual requiring care has a valid ID cated, the following procedures will be card or that an application has been followed when individuals present submitted for a renewal DD 1173. In the without the required ID card. latter instance, include in the state- (i) Children under 10. Although a DD ment the allegation that: (1) The bene- 1173 (Uniformed Services Identification ficiary is dependent upon the service and Privilege Card) may be issued to member for over one-half of his or her children under 10 years of age, under support, and (2) that there has been no normal circumstances they are not. material change in the beneficiary’s Accordingly, certification and identi- circumstances since the previous deter- fication of children under 10 years of mination of dependency and issuance of age are the responsibility of the mem- the expired card. Place the statement ber, retired member, accompanying in the beneficiary’s medical record. In- parent, legal guardian, or acting guard- form the patient or sponsor that if eli- ian. Either the DD 1173 issued the gibility is not verified by presentation spouse of a member or former member of a valid ID card to the patient admin- or the identification card of the mem- istration department within 30 cal- ber or former member (DD 2, DD 2 endar days, the facility will initiate ac- (Ret), Form PHS–1866–1, or Form PHS– tion to recoup the cost of care. If indi- 1866–3 (Ret)) is acceptable for the pur- cated, billing action for the cost of pose of verifying eligibility of a child treatment will then proceed following under 10 years of age. NAVMED P–5020. (ii) Indefinite expiration. The fact that (B) When recent accessions, National the word ‘‘indefinite’’ may appear in the Guard, reservists, or Reserve units are space for the expiration date on a mem- called to active duty for a period great- ber’s card does not lessen its accept- er than 30 days and neither the mem- ability for identification of a child. See bers nor their dependents are at yet in § 728.4(cc)(3)(iii) for dependent’s cards receipt of their identification cards, with an indefinite expiration date. satisfactory collateral identification (iii) Expiration date. To be valid, a de- may be accepted in lieu thereof, i.e., of- pendent’s DD 1173 must have an expira- ficial documents such as orders, along tion date. Do not honor a dependent’s with a marriage license, or birth cer- DD 1173 with an expiration date of ‘‘in- tificate which establish the individ- definite’’. Furthermore, such a card ual’s status as a dependent of a mem- should be confiscated, per ber called to duty for a period which is NAVMILPERSCOMINST 1750.1A, and not specified as 30 days or less. For a forwarded to the local PSD. The PSD child, the collateral documentation may then forward it to the Com- must include satisfactory evidence mander, Naval Military Personnel that the child is within the age lim- Command, (NMPC (641D)/Pers 7312), De- iting criteria outlined in § 728.31(b)(4). partment of the Navy, Washington, DC An eligible dependent’s entitlement, 20370–5000 for investigation and final under the provisions of this subpart, disposition. Render necessary emer- starts on the first day of the sponsor’s gency treatment to such a person. The active service and ends as of midnight patient administration department on the last day of active service. must determine such a patient’s bene- (4) DEERS checking. Unless otherwise ficiary status within 30 calendar days indicated, all DEERS verification pro- and forward such determination to the cedures will be accomplished in con- fiscal department. If indicated, billing junction with possession of a valid ID action for treatment will then proceed card. following NAVMED P–5020. (i) Prospective DEERS processing—(A) (iv) Without cards or with expired Appointments. To minimize difficulties cards. (A) When parents or parents-infor MTFs, DTFs, and patients, DEERS

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checks are necessary for prospective following minimum checking require- patients with future appointments ments. made through a central or clinic ap- (A) Twenty five percent of all out- pointment desk. Without advance patient visits. DEERS checking, patients could arrive (B) One hundred percent of all admis- at a facility with valid ID cards but sions. may fail the DEERS check, or may ar- (C) One hundred percent of all dental rive without ID cards but be identified visits at all DTFs for other than active by the DEERS check as eligible. duty members, retired members, and Records, including full social security dependent. numbers, of central and clinic appoint- (1) Active duty members are exempt ment systems will be passed daily to from DEERS eligibility verification the DEERS representative for a pro- checking at DTFs. spective DEERS check. This enables (2) Retired members will receive a appointment clerks to notify individ- DEERS vertification check at the ini- uals with appointments of any apparent problem with the DEERS or ID tial visit to any DTF and annually card system and refer those with prob- thereafter at time of treatment at the lems to appropriate authorities prior same facility. To qualify for care as a to the appointment. result of the annually performed (B) Prescriptions. Minimum checking verification check, the individual per- requirements of the program require forming the eligibility check will make prospective DEERS checks on all indi- a notation to this effect on an SF 603, viduals presenting prescriptions of ci- Health Record—Dental. Include in the vilian providers (see notation the date and result of the § 728.4(cc)(4)(iv)(D)). check. (ii) Retrospective DEERS processing. (3) Dependents will have a DEERS Pass daily logs (for walk-in patients, eligibility verification check upon ini- patients presenting in emergencies, or tial presentation for evaluation or patients replacing last minute appoint- treatment. This check will be valid for ment cancellations) to the DEERS rep- up to 30 days if, when the check is con- resentative for retrospective batch ducted, the period of eligibility re- processing if necessary for the facility quested is 30 days. A 30-day eligibility to meet the minimum checking re- check may be accomplished online or quirements in § 728.4(cc)(4)(iv). For via telephone by filling in or request- DEERS processing, the last four digits ing the operator to fill in a 30 day pe- of a social security number are insuffi- riod in the requested treatment dates cient. Accordingly, when retrospective on the DEERS eligibility inquiry processing is necessary, the full social screen. Each service or clinic is ex- security number of each patient must pected to establish auditable proce- be included on daily logs. dures to trace the date of the last eligi- (iii) Priorities. With the following ini- bility verification on a particular de- tial priorities, conduct DEERS eligi- pendent. bility checks using a CRT terminal, (D) One hundred percent of pharmacy single-number dialer telephone, or 800 outpatients presenting new prescrip- number access provided for the specific tions written by a civilian provider. purpose of DEERS checking to: Prospective DEERS checks are re- (A) Determine whether a beneficiary quired for all patients presenting pre- is enrolled. scriptions of civilian providers. A (B) Verify beneficiary eligibility. DEERS check is not required upon Eastablishment of eligibility is under presentation of a request for refill of a the cognizance of personnel support ac- prescription of a civilian provider if tivities and detachments. the original prescription was filled by a (C) Identify any errors on the data USMTF within the past 120 days. base. (E) One hundred percent of all indi- (iv) Minimum checking requirements. viduals requesting treatment without a Process patients presenting at valid ID card if they represent them- USMTFs and DTFs in the 50 States for selves as individuals who are eligible to DEERS eligibility verification per the be included in the DEERS data base.

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(v) Ineligibility determinations. When a (B) The individual is on the DEERS DEERS verification check is performed data base, do not provide non- and eligibility cannot be verified for emergency care until a NAVMED 6320/ any of the following reasons, deny rou- 9, Dependent’s Eligibility for Medical tine nonemergency care unless the ben- Care, is signed by the member, patient, eficiary meets the criteria for a patient’s parent, or patient’s legal or DEERS eligibility override as noted in acting guardian. This form attests the § 728.4(cc)(4)(viii). fact that eligibility has been estab- (A) Sponsor not enrolled in DEERS. lished per appropriate directives and (B) Dependent not enrolled in includes the reason a valid ID card is DEERS. not in the prospective patient’s posses- (C) ‘‘End eligibility date’’ has passed. sion. Apprise the aforementioned re- Each individual in the DEERS data sponsible individual of the provisions base has a date assigned on which eligi- on the form NAVMED 6320/9 now re- bility is scheduled to end. quiring presentation of a valid ID card (D) Sponsor has separated from ac- within 30 calendar days. Deny treat- tive duty and is no longer entitled to ment or admission in physician deter- benefits. mined nonemergency situations of per- (E) Spouse has a final divorce decree sons refusing to sign the certification from sponsor and is not entitled to con- on the NAVMED 6320/9. For persons tinued eligibility as a former spouse. rendered treatment, patient adminis- (F) Dependent child is married. tration department personnel must de- (G) Dependent becomes an active termine their eligibility status within duty member of a uniformed service. 30 calendar days and forward such de- (Applies only to CHAMPUS benefits termination to the fiscal department. since the former dependent becomes If indicated, billing action for treat- entitled to direct care benefits in his or ment will then proceed following her own right as an active duty mem- NAVMED P–5020. ber and must enroll in DEERS.) (viii) DEERS overrides. Possession of (vi) Emergency situations. When a phy- an ID card alone does not constitute sician determines that emergency care sufficient proof of eligibility when the is necessary, initiate treatment. If ad- DEERS check does not verify eligi- mitted after emergency treatment has bility. What constitutes sufficient been provided, a retrospective DEERS proof will be determined by the reason check is required. If an emergency ad- the patient failed the DEERS check. mission or emergency outpatient treat- For example, groups most expected to ment is accomplished for an individual fail DEERS eligibility checks are re- whose proof of eligibility is in ques- cent accession members and their de- tion, the patient administration dependents, Guard or Reserve members partment must determine the individ- recently activated for training periods ual’s beneficiary status within 30 cal- of greater than 30 days and their de- endar days of treatment and forward pendents, and parents and parents-in- such determination to the fiscal de- law with expired ID cards. Upon pres- partment. Eligibility verifications will entation of a valid ID card, the fol- normally consist of presentation of a lowing are reasons to ‘‘override’’ a valid ID card along with either a posi- DEERS check either showing the indi- tive DEERS check or a DEERS over- vidual as ineligible or when an indi- ride as noted in § 728.4(cc)(4)(viii). If in- vidual does not appear in the DEERS dicated, billing action for treatment data base. will then proceed per NAVMED P–5020. (A) DD 1172. Patient presents an (vii) Eligibility verification for non- original of a copy of a DD 1172, Applica- emergency care. When a prospective pation for Uniformed Services Identifica- tient presents without a valid ID card tion and Privilege Card, which is also and: used to enroll beneficiaries in DEERS. (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

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must have an original signature in sec- sors assigned to a duty station outside tion III; printed name of verifying offi- the 50 United States or assigned to a cer, his or her grade, title, and tele- duty station with an FPO or APO ad- phone number; and the date the copy dress as long as the sponsor appears on was issued. For treatment purposes, the DEERS data base. Before initiating this override expires 120 days from the nonemergency care, request collateral date issued. documentation showing relationship to (B) Recently issued identification sponsor when the relationship is or cards—(1) DD 1173. Patient presents a may be in doubt. recently issued DD 1173, Uniformed (G) Survivors. Dependents of deceased Services Identification and Privilege sponsors when the deceased sponsor Card. Examples are spouses recently failed to enroll in or have his or her de- married to sponsor, newly eligible step- pendents enrolled in DEERS. This situ- children, family members of sponsors ation will be evidenced when an eligi- recently entering on active duty for a bility check on the surviving widow or period greater than 30 days, parents or widower (or other dependent) finds that parents-in-law, and unremarried the sponsor does not appear (screen spouses recently determined eligible. shows ‘‘Sponsor SSN Not Found’’) or the For treatment purposes, this override survivor’s name appears as the sponsor expires 120 days from the date issued. but the survivor is not listed sepa- (2) Other ID cards. Patient presents rately as a dependent. In any of these any of the following ID cards with a situations, if the survivor has a valid date of issue within the previous 120 days: DD 2, DD 2 (Ret), Form PHS 1866– ID card, treat the individual on the 1, or Form PHs 1866–3 (Ret). When these first visit and refer him or her to the ID cards are used for the purpose of local personnel support detachment for verifying eligibility for a child, collat- correction of the DEERS data base. eral documentation is necessary to en- For second and subsequent visits prior sure the child is actually the alleged to appearance on the DEERS data base, sponsor’s dependent and in determining require survivors to present a DD 1172 whether the child is within the age issued per § 728.4(cc)(4)(viii)(A). limiting criteria outlined in (H) Patients not eligible for DEERS en- § 728.31(b)(4). rollment. (1) Secretarial designees are (C) Active duty orders. Patient or not eligible for enrollment in DEERS. sponsor presents recently issued orders Their eligibility determination is to active duty for a period greater than verified by the letter, on one of the 30 days. Copies of such orders may be service Secretaries’ letterhead, of au- accepted up to 120 days of their issue thorization issued. date. (2) When it becomes necessary to (D) Newborn infants. Newborn infants make a determination of eligibility on for a period of 1 year after birth pro- other individuals not eligible for entry vided the sponsor presents a valid ID on the DEERS data base, patient ad- card. ministration department personnel (E) Recently expired ID cards. If the will obtain a determination from the DEERS data base shows an individual purported sponsoring agency, if appro- as ineligible due to an ID card that has priate. When necessary to treat or expired within the previous 120 days admit a person who cannot otherwise (shown on the screen as ‘‘Elig with present proof of eligibility for care at valid ID card’’), care may be rendered the expense of the Government, do not when the patient has a new ID card deny care based only on the fact that issued within the previous 120 days. the individual is not on the DEERS (F) Sponsor’s duty station has an FPO data base. In such instances, follow the or APO number or sponsor is stationed procedures in NAVMED P–5020 to mini- outside the 50 United States. Do not deny mize, to the fullest extent possible, the care to bona fide dependents of spon- write-off of uncollectible accounts.

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Subpart B—Members of the Uni- treatment and services upon applica- formed Services on Active tion to a naval MTF whose mission in- Duty cludes the rendering of the care required. This entitlement provides that § 728.11 Eligible beneficiaries. when required care and services are be- (a) A member of a uniformed service, yond the capabilities of the facility to as defined in subpart A, who is on ac- which the member applies, the com- tive duty is entitled to and will be pro- manding officer of that facility will ar- vided medical and dental care and ad- range for care from another USMTF, juncts thereto. For the purpose of this designated USTF, or other Federal part, the following are also considered source or will authorize and arrange on active duty: for direct use of supplemental services (1) Members of the National Guard in and supplies from civilian non-Federal active Federal service pursuant to a sources out of operation and mainte- ‘‘call’’ under 10 U.S.C. 3500 or 8500. nance funds. (2) Midshipmen of the U.S. Naval (i) Necessary hospitalization and Academy. other medical care. (3) Cadets of the U.S. Military Acad- (ii) Occupational health services as emy. defined in § 728.2(z). (4) Cadets of the Air Force Academy. (iii) Necessary prosthetic devices, (5) Cadets of the Coast Guard Acad- prosthetic dental appliances, hearing emy. aids, spectacles, orthopedic footwear, (b) The following categories of per- and other orthopedic appliances (see sonnel who are on active duty are enti- subpart H). When these items need re- tled to and will be provided medical pair or replacement and the items were and dental care and adjuncts thereto to not damaged or lost through neg- the same extent as is provided for ac- ligence, repair or replacement is au- tive duty members of the Regular serv- thorized at Goverment expense. ice (except reservists when on active (iv) Routine dental care. duty for training as delineated in § 728.21). (2) When a USMTF, with a mission of (1) Members of the Reserve compo- providing the care required, releases nents. the medical management of an active (2) Members of the Fleet Reserve. duty member of the Navy, Marine (3) Members of the Fleet Marine Corps, Army, Air Force, or a commis- Corps Reserve. sioned corps member of USPHS or (4) Members of the Reserve Officers’ NOAA, the resulting civilian health Training Corps. care costs will be paid by the referring (5) Members of all officer candidate facility. programs. (3) The member’s uniformed service (6) Retired members of the uniformed will be billed for care provided by the services. civilian facility only when the referring MTF is not organized nor author- § 728.12 Extent of care. ized to provide needed health care (see Members who are away from their part 732 of this chapter for naval mem- duty stations or are on duty where bers). Saturation of service or facilities there is no MTF of their own service does not fall within this exception. may receive care at the nearest avail- When a naval MTF retains medical able Federal MTF (including des- management, the costs of supplemental ignated USTFs) with the capability to care obtained from civilian sources is provide required care. Care will be pro- paid from funds available to operate vided without regard to whether the the MTF which manages care of the pa- condition for which treatment is re- tient. When it becomes necessary to quired was incurred or contracted in refer a USPHS or NOAA commissioned line of duty. corps member to a non-Federal source (a) All uniformed services active duty of care, place a call to the Department members. (1) All eligible beneficiaries of Health and Human Services (DHHS), covered in this subpart are entitled to Chief, Patient Care Services on (301) and will be rendered the following 443–1943 or FTS 443–1943 if DHHS is to

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assume financial responsibility. Pa- (c) Reserve and National Guard per- tient Care Services is the sole source sonnel. In addition to those services for providing authorization for non- covered in paragraphs (a) and (b) of Federal care at DHHS expense. this section, Reserve and National (b) Maternity episode for active duty fe- Guard personnel are authorized the fol- male members. A pregnant active duty lowing under conditions set forth. (See member who lives outside the MHSS § 728.25 for additional benefits for Na- inpatient catchment area of all tional Guard personnel.) USMTFs is permitted to choose wheth- (1) Personnel whose units have an ac- er she wishes to deliver in a closer ci- tive Army mission of manning missile vilian hospital or travel to the USMTF sites are authorized spectacle inserts for delivery. If such a member chooses for protective field masks. to deliver in a naval MTF, makes ap- (2) Personnel assigned to units des- plication, and presents at that facility ignated for control of civil disturb- at the time for delivery, the provisions ances are authorized spectacle inserts of paragraph (a) of this section apply for protective field masks M17. with respect to the furnishing of needed care, including routine newborn care § 728.13 Application for care. (i.e., nursery, newborn examination, PKU test, etc.); arrangements for care Possession of an ID card (a green col- beyond the facility’s capabilities; or ored DD 2 (with letter suffix denoting the expenditure of funds for supple- branch of service), Armed Forces Iden- mental care or services. Pay expenses tification Card; a green colored PHS incurred for the infant in USMTFs or 1866–1, Identification Card; or a red col- civilian facilities (once the mother has ored DD 2 Res (Reservists on active been admitted to the USMTF) from duty for training)) alone does not con- funds available for care of active duty stitute sufficient proof of eligibility. members, unless the infant becomes a Accordingly, make a DEERS check, per patient in his or her own right either § 728.4(cc), before other than emergency through an extension of the birthing care is rendered to the extent that may hospital stay because of complications, be authorized. subsequent transfer to another facility, or subsequent admission. If the Gov- § 728.14 Pay patients. ernment is to assume financial respon- Care is provided on a reimbursable sibility for: basis to: Coast Guard active duty offi- (1) Care of pregnant members resid- cers, enlisted personnel, and academy ing within the MHSS inpatient cadets; Public Health Service Commis- catchment area of a uniformed services sioned Corps active duty officers; and hospital or in the inpatient catchment Commissioned Corps active duty offi- area of a designated USTF, such mem- cers of the National Oceanic and At- bers are required to: mospheric Administration. Accord- (i) Make application to that facility ingly, patient administration personnel for care, or will initiate the collection action proc- (ii) Obtain authorization, per part 732 ess in subpart J in each instance of in- of this chapter, for delivery in a civil- patient or outpatient care provided to ian facility. these categories of patients. (2) Non-Federal care of pregnant members residing outside inpatient Subpart C—Members of Reserve catchment areas of USMTFs and Components, Reserve Offi- USTFs, the member must request and receive authorization per part 732 of cers’ Training Corps, Navy this chapter. Part 732 of this chapter and Marine Corps Officer also provides for cases of precipitious Candidate Programs, and Na- labor necessitating emergency care. tional Guard Personnel OPNAVINST 6000.1, Management of Pregnant Servicewomen, contains med- § 728.21 Navy and Marine Corps re- ical-administrative guidelines on man- servists. agement prior to admission and after (a) Scope. This section applies to re- discharge from admission for delivery. servists, as those terms are defined in

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§ 728.2, ordered to active duty for train- titlement Manual for allowable con- ing or inactive duty training for 30 structive travel times.) days or less. Reservists serving under (e) Treatment and services authorized. orders specifying duty in excess of 30 In addition to those services delineated days, such as Sea and Air Mariners above, the following may be rendered (SAMS) while on initial active duty for under circumstances outlined: training, will be provided care as mem- (1) Prosthetic devices, including den- bers of the Regular service per subpart tal appliances, hearing aids, spectacles, B. and orthopedic appliances that are lost (b) Entitlement. Per 10 U.S.C. 1074a(a), or have become damaged during train- reservists who incur or aggravate an ing duty, not through negligence of the injury, illness, or disease in line of individual, may be repaired or replaced duty while on active duty for training at Government expense. or inactive duty training for a period of (2) Reservists covered by this subpart 30 days or less, including travel to and may be provided the following only if from that duty, are entitled to medical approved by the appropriate OMA or and dental care appropriate for the ODA, or by the Commander, Naval treatment of that injury, disease, or Medical Command (MEDCOM–33 for illness until the resulting disability medical and MEDCOM–06 for dental) cannot be materially improved by fur- prior to initiation of services. ther hospitalization or treatment. Care (i) Treatment for acute exacerbations is authorized for such an injury, ill- of conditions that existed prior to a reservist’s period of training duty. Limit ness, or disease beyond the period of care to that necessary for the preven- training to the same extent as care is tion of pain or undue suffering until authorized for members of the Regular the patient can reasonably return to service (see subpart B) subject to the control of the member’s private physi- provisions of § 728.21(e). cian or dentist. (c) Questionable circumstances. If the (A) Remediable physical defects and circumstances are questionable, refer- remediable treatment for other condi- ral to the OMA or ODA is appropriate. tions. If necessary, make referral to the (B) Elective surgery. Naval Medical Command (MEDCOM–33 (ii) All dental care other than emer- for medical and MEDCOM–06 for den- gency treatment and that necessary to tal) on determinations of entitlements. correct an injury incurred in the line of (d) Line of duty. For the purpose of duty. providing treatment under laws enti- (f) Authorization for care. (1) Reserv- tling reservists to care, an injury, ill- ists covered by this subpart may be ness, or disease which is incurred, ag- provided inpatient or outpatient care gravated, or becomes manifest while a during a period of training duty with- reservist is employed in the perform- out written authorization. ance of active duty for training or in- (2) Except in emergencies or when inactive duty training (including author- patient care initiated during a period ized leave, liberty and travel to and of training duty extends beyond such from either duty) will be considered to period, reservists will be required to have been incurred in line of duty furnish written official authorization (LOD) unless the condition was in- from their unit commanding officer, or curred as a result of the reservist’s own higher authority, incident to receiving misconduct or under other cir- inpatient or outpatient care beyond cumstances enumerated in JAG Man- the period of training duty. The letter ual, chapter VIII. While the LOD inves- of authorization will include name, tigation is being conducted, such re- grade or rate, social security number, servists remain entitled to care. If the and organization of the reservist; type investigation determines that the in- of training duty being performed or jury or illness was not incurred in line that was being performed when the of duty, the civilian humanitarian non- condition manifested; diagnosis (if indigent rate is applicable if further known); and a statement that the con- care is required in naval MTFs. (See dition was incurred in line of duty and DOD Military Pay and Allowances En- that the reservist is entitled to care. If

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the reservist has been issued a notice (3) Medical, dental, pharmacy, veteri- of eligibility (NOE) (subpart I), the nary or science allied to medicine stu- NOE may then be accepted in lieu of dents who are commissioned officers of the letter of authorization. When au- a reserve component of an Armed thorization has not been obtained be- Force who have been admitted to and forehand, care may be provided on a ci- training in a unit of a Senior Reserve vilian humanitarian basis (see subpart Officers’ Training Corps. G) pending final determination of eligi- (b) Extent of care. (1) While attending bility. or en route to or from field training or practice cruises: § 728.22 Members of other reserve (i) Medical care for a condition in- components of the uniformed services. curred without reference to line of duty. (a) Members of reserve components of (ii) Routine dental care. the Coast Guard may be provided care (iii) Prosthetic devices, including the same as Navy and Marine Corps re- dental appliances, hearing aids, spec- servists. tacles, and orthopedic appliances that (b) Members of reserve components of have become damaged or lost during the Army and Air Force may be pro- training duty, not through negligence vided care in naval MTFs to the same of the individual, may be repaired or extent that they are eligible for such replaced as necessary at government care in MTFs of their respective serv- expense. ices. Consult current Army Regulation (iv) Care of remediable physical de- 40–3, Medical, Dental, and Veterinary fects, elective surgery or other remedi- Care, or Air Force Regulation 168–6, able treatment for conditions that ex- Persons Authorized Medical Care, as isted prior to a period of training duty appropriate, for particular eligibility are not authorized without approval requirements or contact the nearest from the appropriate OMA or ODA, or appropriate service facility. from the Commander, Naval Medical (c) When the service directive re- Command (MEDCOM–33 for medical quires written authorization, obtain and MEDCOM–06 for dental). such authorization from the reservist’s unit commanding officer or other ap- (v) Medical examinations and immu- propriate higher authority. nizations. (d) Naval MTFs in the United States (vi) ROTC members are authorized are authorized to conduct physical ex- continued medical care, including hos- aminations of and administer immuni- pitalization, upon expiration of their zations to inactive reserve Public field training or practice cruise period, Health Service commissioned officers the same as reservists in § 728.21(b) and upon presentation of a written request § 728.22. from the Commissioned Personnel Op- (2) While attending a civilian edu- erations Division, OPM/OAM, 5600 Fish- cational institution: ers Lane, Rockville, MD 20852. (i) Medical care in naval MTFs, including hospitalization, for a condition § 728.23 Reserve Officers’ Training incurred in line of duty while at or Corps (ROTC). traveling to or from a military instal- (a) Eligible beneficiaries. (1) Members lation for the purpose of undergoing of the Senior Reserve Officers’ Train- medical or other examinations or for ing Corps of the Armed Forces includ- purposes of making visits of observa- ing students enrolled in the 4-year Sen- tion, including participation in service- ior ROTC Program or the 2-year Ad- sponsored sports, recreational, and vanced Training Senior ROTC Pro- training activities. gram. (ii) Medical examinations, including (2) Designated applicants for mem- hospitalization necessary for the prop- bership in the Navy, Army, and Air er conduct thereof. Force Senior ROTC Programs during (iii) Required immunizations, includ- their initial 6-weeks training period ing hospitalization for severe reactions (practice cruises or field training). therefrom.

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(c) Authorization. The individual’s from that duty. The authorizing letter commanding officer will prepare a let- will include name, social security num- ter of authorization addressed to the ber, grade, and organization of the commanding officer of the MTF con- member; type and period of duty in cerned. which engaged (or in which engaged (d) ROTC members as beneficiaries of when the injury or illness occurred); di- the Office of Workers’ Compensation Pro- agnosis (if known); and will indicate grams (OWCP). Under circumstances that the injury suffered or disease con- described therein, render care as out- tracted was in line of duty and that the lined in § 728.53 to members of the individual is entitled to medical or ROTC as beneficiaries of OWCP. dental care. Limit care to that appropriate for the injury. disease, or illness § 728.24 Navy and Marine Corps Offi- until the resulting disability cannot be cer Candidate Programs. materially improved by further hos- Members of the Reserve Officers Can- pitalization or treatment. didate Program and Platoon Leaders (b) Physical examinations. AR 40–3 and Class are entitled to the same medical AFR 168–6 also authorize physical ex- and dental benefits as are provided aminations for National Guard per- members of the Navy and Marine Corps sonnel. Accordingly, when requested by Reserve Components. Accordingly, the an Army or Air Force National Guard provisions of § 728.21 are applicable for unit’s commanding officer, naval MTFs such members. Additionally, can- may perform the requested physical ex- didates for, or persons enrolled in such amination per the appropriate service programs are authorized access to directive, subject to the availability of naval MTFs for the purpose of con- space, facilities, and the capabilities of ducting special physical examination the staff. procedures which have been requested by the Commander, Naval Medical Subpart D—Retired Members and Command to determine their physical Dependents of the Uniformed fitness for appointment to, or continu- Services ation in such a program. Upon a request from the individual’s com- § 728.31 Eligible beneficiaries and manding officer, the officer in charge health benefits authorized. of cognizant Navy and Marine Corps re- (a) Retired members of the uniformed cruiting stations, or officer selection services. Retired members, as defined in officer, naval MTFs are authorized to § 728.2(aa), are authorized the same admit such persons when, in the opin- medical and dental benefits as active ion of the cognizant officer, hos- duty members subject to the avail- pitalization is necessary for the proper ability of space and facilities, capabili- conduct of the special physical exami- ties of the professional staff, and the nations. Hospitalization should be kept priorities in § 728.3, except that: to a minimum and treatment other (1) Periodic medical examinations for than for humanitarian reasons, except members on the Temporary Disability as provided in this part, is not author- Retired List, including hospitalization ized. in connection with the conduct thereof, will be furnished on the same priority § 728.25 Army and Air Force National basis as care to active duty members. Guard personnel. (2) When vision correction is re- (a) Medical and dental care. Upon quired, one pair of standard issue spec- presentation of a letter of authoriza- tacles, or one pair of nonstandard 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

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military personnel (7) An unremarried former spouse of (NAVMEDCOMINST 6810.1 refers). a member or former member who does (b) Dependents of members of former not have medical coverage under an members. Include: employer-sponsored health plan, and (1) The spouse. who: (2) The unremarried widow. (i) On the date of the final decree of (3) The unremarried widower. divorce, dissolution, or annulment, had (4) An unmarried legitimate child, in- been married to the member or former cluding an adopted child or a stepchild, member at least 20 years during which who either— period the member of former member performed at least 20 years of service (i) Has not passed his or her 21st creditable in determining that mem- birthday; ber’s or former member’s eligibility for (ii) Is incapable of self-support be- retired or retainer pay, or equivalent cause of a mental or physical inca- pay. pacity that existed before the 21st (ii) Had been married to the member birthday and is, or was at the time of of former member at least 20 years, at the member’s or former member’s least 15 of which were during the period death, in fact dependent on the mem- the member of former member per- ber for over one-half of his or her sup- formed service creditable in deter- port; or mining the member’s eligibility for re- (iii) Has not passed the 23rd birthday, tired or retainer pay, or equivalent is enrolled in a full-time course of pay. The former spouse’s sponsor must study in an institution of higher learn- have performed at least 20 years of ing approved by the administering Sec- service creditable in determining the retary and is, or was at the time of the sponsor’s eligibility for retired or re- member’s or former member’s death, in tainer pay, or equivalent pay. fact dependent on the member for over (A) Eligibility for such former one-half of his or her support. (If such spouses continue until remarriage if a child suffers a disabling illness or in- the final decree of divorce, dissolution, jury and is unable to return to school, or annulment occurred before 1 April the child remains eligible for benefits 1985. until 6 months after the disability is (B) Eligibility terminates the later removed, or until the 23rd birthday is of: Either 2 years from the date of the reached, whichever comes first.) final decree of divorce, dissolution, or (5) An unmarried illegitimate child annulment; or 1 April 1988 for such or illegitimate step-child who is, or former spouses whose final decree was at the time of sponsor’s death, de- occured on or after 1 April 1985. pendent on the sponsor for more than (iii) An unremarried former spouse of one-half of his or her support; residing a deceased member of former member with or in a home provided by the who meets the requirements of sponsor or the sponsor’s spouse, as ap- § 728.31(b)(7)(i) or (ii) may be provided plicable, and is— medical and dental care as a dependent (i) Under 21 years of age; or when the sponsor: (ii) Twenty-one years of age or older (A) Died before attaining age 60. but incapable of self-support because of (B) At the time of death would have a mental or physical incapacity that been eligible for retired pay under 10 existed prior to the individual’s 21st U.S.C. 1331–1337 except that the sponsor birthday; or was under 60 years of age; but the (iii) Twenty-one or 22 years of age former spouse is not eligible for care and pursuing a full-time course of edu- until the date the sponsor would have cation that is approved per attained age 60; § 728.31(b)(4)(iii). (C) Whether or not the sponsor elect- (6) A parent or parent-in-law, who is, ed participation in the Survivor Ben- or was at the time of the member’s or efit Plan of 10 U.S.C. 1447–1455. former member’s death, in fact depend- (c) Eligibility factors. Care that may ent on the member for over one-half of be rendered to all dependents in this such parent’s support and residing in subpart D is subject to the availability the sponsor’s household. of space and facilities, capabilities of

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the professional staff, and priorities in by the remarriage of the divorced § 728.3. Additionally: spouse maintaining custody unless the (1) Members of the uniformed serv- marriage is to an eligible service mem- ices must be serving under orders ber. specifying active duty for more than 30 (6) A stepchild relationship does not days before their dependents are au- cease upon death of the member step- thorized benefits delineated in parent but does cease if the natural § 728.31(d). parent subsequently remarries. (2) A dependent’s eligibility begins on (7) A child of an active duty or re- the date the member enters on active tired member, adopted after that mem- duty and ends as of midnight of the ber’s death, retains eligibility for date the sponsor’s period of active duty ends for any reason other than retire- health benefits. However, the adoption ment or death. Dependents lose eligi- of a child of a living member (other bility as of midnight of the date a than by a person whose dependents are member is officially place in a deserter eligible for health benefits at USMTFs) status. Eligibility is restored on the terminates the child’s eligibility. date a deserter is returned to military (8) If a member’s child is married be- control. fore reaching age 21 to a person whose (3) A dependent (other than a former dependents are not eligible for health spouse) of a member or former member benefits in USMTFs, eligibility ceases who died before attaining age 60 and at as of midnight on the date of marriage. the time of death— Should the marriage be terminated, (i) Would have been eligible for re- the child again becomes eligible for tired pay under chapter 67 of title 10 benefits as a dependent child if other- U.S.C. but for the fact that the member wise eligible. of former member was under 60 years of (d) Health benefits authorized. (1) Inpa- age, and tient care including services and sup- (ii) Had elected to participate in the plies normally furnished by the MTF. Survivor Benefit Plan, may not be ren- (2) Outpatient care and services. dered medical or dental care under the (3) Drugs (see chapter 21, MANMED). sponsor’s entitlement until the date on which such member of former member (i) Prescriptions written by officers would have attained age 60. of the Medical and Dental Corps, civil- (4) A spouse, not qualifying as a ian physicians and dentists employed former spouse, who is divorced from a by the Navy, designated officers of the member loses eligibility for benefits as Medical Service Corps and Nurse Corps, of midnight of the date the divorce be- independent duty hospital corpsmen, comes final. This includes loss of ma- and others designated to write pre- ternity care benefits for wives who are scriptions will be filled subject to the pregnant at the time a divorce becomes availability of pharmaceuticals, and final. A spouse does not lose eligibility consistent with control procedures and through issuance of an interlocutory applicable laws. decree of divorce even when a property (ii) Prescriptions written by civilian settlement has been approved which re- physicians and dentists (non-Navy em- leases the member from responsibility ployed) for eligible beneficiaries may for the spouse’s support. A spouse’s eli- be filled if: gibility depends upon the relationship (A) The commanding officer or CO’s of the spouse to the member; so long as designee determines that pharmacy the relationship of husband and wife is personnel and funds are available. not terminated by a final divorce or annulment decree, eligibility con- (B) The items requested are routinely tinues. stocked. (5) Eligibility of children is not af- (C) The prescribed quantity is within fected by the divorce of parents except limitations established by the com- that a stepchild relationship ceases mand. upon divorce or annulment of natural (D) The prescriber is in the local area parent and step-parent. A child’s eligi- (limits designated by the commanding bility for health benefits is not affected officer).

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(E) The provisions of chapter 21, endangered if the fetus were carried to MANMED are followed when such serv- term. ices include the dispensing of con- (10) Dental care worldwide on a space trolled substances. available basis. (4) Treatment on an inpatient or out- (11) Government ambulance services, patient basis of: surface or air, to transport dependents (i) Medical and surgical conditions. to, from, or between medical facilities (ii) Contagious diseases. when determined by the medical officer (iii) Nervous, mental, and chronic in charge to be medically necessary. conditions. (12) Home calls when determined by the medical officer in charge to be (5) Physical examinations, including medically necessary. eye examinations and hearing evalua- (13) Artificial limbs and artificial tions, and all other tests and proce- eyes, including initial issue, fitting, re- dures necessary for a complete physical pair, replacement, and adjustment. examination. (14) Durable equipment such as (6) Immunizations. wheelchairs, hospital beds, and resus- (7) Maternity (obstetrical) and infant citators may be issued on a loan basis. care, routine care and examination of (15) Orthopedic aids, braces, crutches, the newborn infant, and well-baby care elastic stockings, walking irons, and for mothers and infants meeting the similar aids. eligibility requirements of § 728.31(b). If (16) Prosthetic devices (other than a newborn infant of an unmarried de- artificial limbs and eyes), hearing aids, pendent minor daughter becomes a pa- orthopedic footwear, and spectacles or tient in his or her own right after dis- contact lenses for the correction of or- charge of the mother, classify the in- dinary refractive error may not be pro- fant as civilian humanitarian non- vided dependents. These items, how- indigent inasmuch as § 728.31(b) does ever, may be sold to dependents at cost not define the infant as a dependent of to the Government at facilities outside the active duty or retired service mem- the United States and at specific in- ber. Therefore, the minor daughter’s stallations within the United States sponsor (parent) should be counseled where adequate civilian facilities are concerning the possibility of Secre- unavailable. tarial designee status for the infant (17) Special lenses (including intra- (see § 728.77). ocular lenses) or contact lenses for (8) Diagnostic tests and services, in- those eye conditions which require cluding laboratory and x-ray examina- these items for complete medical or tions. Physical therapy, laboratory, x- surgical management of the condition. ray, and other ambulatory diagnostic (18) One wig if the individual has alo- or therapeutic measures requeted by pecia resulting from treatment of a non-Navy employed physicians may be malignant disease: Provided the indi- provided upon approval of the com- vidual has not previously received a manding officer or designated depart- wig at the expense of the United ment heads. Rendering of such srvices States. is subordinate to and will not unduly (e) Dependents of reserves. (1) A de- interfere with providing inpatient and pendent, as defined in § 728.31(b), of a outpatient care to active duty per- deceased member of the Naval Reserve, sonnel and others whose priority to re- the Fleet Reserve, the Marine Corps ceive care is equal to or greater than Reserve, or the Fleet Marine Corps Re- such dependents. Ensure that the reserve, who— lease of any information to non-Navy (i) Was ordered to active duty or to employed physicians is in consonance perform inactive-duty training for any with applicable provisions of period of time. SECNAVINST 5211.5C. (ii) Was disabled in the line of duty (9) Family planning services as delin- from an injury while so employed, and eated in SECNAVINST 6300.2A. Abor- (iii) Dies from such a specific injury, tions, at the expense of the Govern- illness, or disease is entitled to the ment, may not be performed except same care as provided for dependents in where the life of the mother would be § 728.31(c).

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(2) The provisions of this subpart D quire the beneficiary to use the are not intended to authorize medical USMTF and the attending physician and dental care precluded for depend- has specific prior approval from the fa- ents of members of Reserve compo- cility’s commanding officer or higher nents who receive involuntary orders authority to make such determination. to active duty under 10 U.S.C. 270b. (i) Issuance for this reason should be (f) Unauthorized care. In addition to restricted to those instances when de- the devices listed in § 728.31(d)(16) as nial of the DD 1251 could result in a unauthorized, dependents are not au- significant risk to the health of any pa- thorized care for elective correction of tient requiring any clinical specialty. minor dermatological blemishes and (ii) Issuing authorities have discre- marks or minor anatomical anomalies. tionary authority to evaluate each situation and issue a DD 1251 under the § 728.32 Application for care. ‘‘medically inappropriate’’ reason if: Possession of an ID card alone (DD 2 (A) In consideration of individual (Retired), PHS–1866–3 (Retired), or DD medical needs, personal constraints on 1173 (Uniformed Services Identification an individual’s ability to get to the and Privilege Card)) does not con- USMTF results in an unreasonable lim- stitute sufficient proof of eligibility. itation on that individual’s ability to Accordingly, a DEERS check will be get required medical care, and instituted per § 728.4 (cc) before medical (B) The issuing authority determines and dental care may be rendered except that obtaining care from a civilian in emergencies. When required inpa- source selected by the individual would tient or outpatient care is beyond the result in significantly less limitations capabilities of the naval MTF, the pro- on that individual’s ability to get revisions of § 728.34 apply. When required quired medical care than would result inpatient care cannot be rendered and if the individual was required to obtain a decision is made to disengage a care from a USMTF. CHAMPUS-eligible beneficiary, the (C) A beneficiary is in a travel status. provisions of § 728.33 apply. The commanding officer of the first facility contacted, in either the bene- § 728.33 Nonavailability statement (DD ficiary’s home catchment area or the 1251). catchment area where hospital care (a) General. Per DODINST 6015.19 of 26 was obtained, has this discretionary Nov. 1984, the following guidelines are authority. Travel in this instance effective as of 1 Jan. 1985. All pre- means the beneficiary is temporarily viously issued Nonavailability State- on a trip away from his or her perma- ment guidelines and reporting require- nent residence. The reason the patient ments are superseded. is traveling, the distance involved in (b) Applicability. The following provi- the travel, and the time away from the sions are applicable to nonemergency permanent residence is not critical to inpatient care only. A DD 1251 is not the principle inherent in the policy. required: The issuing officer to whom the re- (1) For emergency care (see para- quest for a Nonavailability Statement graph (d)(1)) of this section. is made should reasonably determine (2) When the beneficiary has other in- that the trip was not made, and the ci- surance (including Medicare) that pro- vilian care is not (was not) obtained, vides primary coverage for a covered with the primary intent of avoiding use service. of a USMTF or USTF serving the bene- (3) For medical services that ficiary’s home area. CHAMPUS clearly does not cover. (d) Guidelines for issuing—(1) Emer- (c) Reasons for issuance. DD 1251’s gency care. Emergency care claims do may be issued for only the following not require an NAS; however, the na- reasons: ture of the service or care must be cer- (1) Proper facilities are not available. tified as an emergency by the attend- (2) Professional capability is not ing physician, either on the claim form available. or in a separate signed and dated state- (3) It would be medically inappro- ment. Otherwise, a DD 1251 is required priate (as defined in § 728.2(u)) to re- by CHAMPUS-eligible beneficiaries

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who are subject to the provisions of manders of naval geographic medical this section. commands, naval MTFs will issue Non- (2) Emergency maternity care. Unless availability Statements only when care substantiated by medical documenta- required is not available from the tion and review, a maternity admission naval MTF and the beneficiary’s place would not be deemed as an emergency of residence is within the catchment since the fact of the pregnancy would area (as defined in § 728.2(d)) of the have been established well in advance issuing facility or as otherwise directed of the admission. In such an instance, by the Secretary of Defense. When the the beneficiary would have had suffi- facility’s inpatient catchment area cient opportunity to obtain a DD 1251 if overlaps the inpatient catchment area required in her residence catchment of one or more other USMTFs or area. USTFs with inpatient capability and (3) Newborn infant(s) remaining in hos- the residence of the beneficiary is pital after discharge of mother. A new- within the same catchment area of one born infant remaining in the hospital or more other USMTFs or USTFs with continuously after discharge of the inpatient capability, the issuing au- mother does not require a separate DD thority will: 1251 for the first 15 days after the (1) Determine whether required care mother is discharged. Claims for care is available at any other USMTFs or beyond this 15-day limitation must be USTFs whose inpatient catchment area accompanied by a valid DD 1251 issued overlaps the beneficiary’s residence. If in the infant’s name. This is due to the care is available, refer the beneficiary fact that the infant becomes a patient to that facility and do not issue a DD in his or her own right (the episode of 1251. care for the infant after discharge of (2) Implement measures ensuring the mother is not considered part of that an audit trail related to each the initial reason for admission of the check and referral is maintained, in- mother (delivery), and is therefore con- cluding the check required before ret- sidered a separate admission under a roactive issuance of a DD 1251 as delin- different diagnosis). eated in paragraph (g) of this section. (4) Cooperative care program. When a When other than written communica- DD 2161, Referral for Civilian Medical tion is made to ascertain capability, Care, is issued for inpatient care in make a record in the log required in connection with the Cooperative Care paragraph (h) of this section that ‘‘Tel- Program (§ 728.4(z)(5)(iv)) for care under ephonic (or other) determination was CHAMPUS, a DD 1251 must also be made on (date) that required care was issued. not available at (name of other (5) Beneficiary responsibilities. Bene- USMTF(s) or USTF(s) contacted)’’. The ficiaries are responsible for deter- individual ascertaining this informa- mining whether an NAS is necessary in tion will sign this notation. the area of their residence and for ob- (3) Once established that a DD 1251 is taining one, if required, by first seek- authorized and will be issued, the fol- ing nonemergency inpatient care in the lowing will apply: USMTF or USTF serving the (i) Do not refer patients to a specific catchment area. Beneficiaries cannot source of care. avoid this requirement by arranging to (ii) Nonavailability Statements be away from their residence when issued at commands outside the United nonemergency inpatient care is ob- States are not valid for care received in tained, e.g., staying with a relative or facilities located within the United traveling. Individuals requiring an States. Statements issued within the NAS because they reside in the inpa- United States are not valid for care re- tient catchment area of a USMTF or ceived outside the United States. USTF also require an NAS for non- (iii) The issuing authority will: emergency care received while away (A) If capability permits, prepare a from their inpatient catchment area. DD 1251 via the automated application (e) Issuing authority. Under the direc- of DEERS. Where this system is oper- tion of the Commander, Naval Medical ational, it provides for transmitting Command, exercised through com- quarterly reports to the Office of the

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Assistant Secretary of Defense for lated directly to the original admis- Health Affairs (OASD(HA)) by elec- sion. tronic means. System users should (2) Maternity episodes are valid if refer to their DEERS/NAS Users Man- outpatient of inpatient treatment re- ual for specific guidance on the use of lated to the pregnancy is initiated the automated system. At activities within 30 days of its issuance. They re- where the DEER/NAS automated sys- main valid for care of the mother tem is not operational, prepare each through termination of the pregnancy DD 1251 per instructions on the reverse and for 42 days thereafter to allow for of the form. After completion, if au- postnatal care to be included in the thorized by the facility CO, the issuing maternity episode. (See paragraph authority will sign the DD 1251. Give a (d)(3) of this section for the validity pe- copy to the patient for presentation to riod of DD 1251’s for infants remaining a participating civilian provider, or for after discharge of the mother.) submission with the claim of a non- (g) Retroactive issuance. Issue Non- participating provider. Retain a copy availability Statements retroactively for the issuing activity’s records. Re- only if required care could not have tain the original for subsequent trans- been rendered in a USMTF or USTF as mittal to the Naval Medical Data Serv- specified in paragraph (e) of this sec- ices Center per paragraph (j) of this tion at the time services were rendered section. in the civilian sector. At the time a (B) Explain to the patient or other retroactive issuance is requested, the responsible family member the validity facility receiving the request will de- period of the DD 1251 (see paragraph (f) termine whether capability existed at of this section). the USMTF or USTF serving the inpa- (C) Ensure that beneficiaries are tient catchment area wherein the bene- clearly advised of the cost-sharing pro- ficiary resides (resided) or at any of the visions of CHAMPUS and of the fact facilities in the overlapping area de- that the issuance of a Nonavailability scribed in paragraph (e) of this section. Statement does not imply that While the date of service will be re- CHAMPUS will allow any and all costs corded on the DD 1251, send the re- incurred through the use of the DD tained original to the Naval Medical 1251. The issuance of a DD 1251 indi- Data Services Center along with others cates only that care requested is not issued during the week of issuance available at a USMTF or USTF serving (paragraph (j) of this section refers). the beneficiary’s residence inpatient (h) Annotating DD 1251’s. Before catchment area. issuance, annotate each DD 1251 per (D) Review, with the patient or re- the instructions for completion on the sponsible family member, instructions reverse of the form. DD 1251’s issued 1 through 6 on the face of the DD 1251 under the CO’s discretionary authority and have the patient or responsible for the ‘‘medically inappropriate reason family member sign acknowledgement (paragraph (c)(3)(ii) of this section) will that such review has been made and is be annotated in the remarks section understood. documenting the special circumstances (E) Advise recipients that CHAMPUS necessitating issuance, the name and fiscal intermediaries may deny claims location of the source of care selected of individuals who are not enrolled in by the beneficiary, and approximate the Defense Enrollment Eligibility Re- distance from the source selected to porting System (DEERS). the nearest USMTF or USTF with ca- (f) Validity period. DD 1251’s issued pability (see instruction number 2 on for: the reverse of the DD 1251). Establish (1) Other than maternity care are and maintain a consecutively num- valid for a hospital admission occur- bered log to include for each individual ring within 30 days of issuance and re- to whom a DD 1251 is issued: main valid from the date of admission (1) Patient’s name and identifying until 15 days after discharge from the data. facility rendering inpatient care. This (2) The facility unique NAS number allows for any follow-on treatment re- (block number 1 on the DD 1251).

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(i) Appeal procedures. Beneficiaries the reasonable costs of inpatient hos- may appeal the denial of their request pital care incurred by the United for a DD 1251. This procedure consists States on behalf of retirees and depend- of four levels within Navy, any one of ents. Naval hospital collection agents which may terminate action and order have been provided instructions rel- issuance of a Nonavailability State- ative to this issue and are responsible ment if deemed warranted: for initiating claims to third-party (1) The first level is the chief of serv- payers for the cost of such care. Admis- ice, or director of clinical services if sion office personnel must obtain in- the chief of service is the cognizant au- surance, medical service, or health thority denying the beneficiary’s origi- plan (third-party payer) information nal request. from retirees and dependents upon ad- (2) The second level is the commission and forward this information manding officer of the naval MTF de- to the collection agent. nying the issuance. Where the appeal is denied and denial is upheld at the com- § 728.36 Pay patients. manding officer’s level, inform bene- Care is provided on a reimbursable ficiaries that their appeal may be for- basis to retired Coast Guard officers warded to the geographic commander and enlisted personnel, retired Public having jurisdictional authority. Health Service Commissioned Corps of- (3) The third level is the appropriate ficers, retired Commissioned Corps offi- geographic commander, if the appeal is cers of the National Oceanic and At- denied at this level, inform bene- mospheric Administration, and to the ficiaries that their appeal may be for- dependents of such personnel. Accord- warded to the Commander, Naval Med- ingly, patient administration personnel ical Command, Washington, DC 20372– will follow the provisions of subpart J 5120. to initiate the collection action proc- (4) The Commander, Naval Medical ess when inpatient or outpatient care Command, the fourth level of appeal, is provided to these categories of bene- will evaluate all documentation sub- ficiaries. mitted and arrive at a decision. The beneficiary will be notified in writing Subpart E—Members of Foreign of this decision and the reasons there- Military Services and Their De- for. pendents (j) Data collection and reporting. Do not issue the original of each DD 1251 § 728.41 General provisions. prepared at activities where the DEER/ (a) Dependent. As used in this sub- NAS automated system is not oper- part, the term ‘‘dependent’’ denotes a ational. Send the retained originals to person who bears one of the following the Commanding Officer, Naval Med- relationships to his or her sponsor: ical Data Services Center (Code–03), (1) A wife. Bethesda, MD 20814–5066 for reporting (2) A husband if dependent on his under report control symbol DD-HA (Q) sponsor for more than one-half of his 1463(6320). support. (3) An unmarried legitimate child, in- § 728.34 Care beyond the capabilities cluding an adopted or stepchild who is of a naval MTF. dependent on the sponsor for over one- When either during initial evaluation half of his or her support and who ei- or during the course of treatment of an ther: individual authorized care in this sub- (i) Has not passed the 21st birthday; part, a determination is made that re- or quired care or services are beyond the (ii) Is incapable of self-support due to capability of the naval MTF, the provi- a physical or mental incapacity that sions of § 728.4(z)(2) apply. existed prior to reaching the age of 21; or § 728.35 Coordination of benefits— (iii) Has not passed the 23rd birthday third party payers. and is enrolled in a full-time course of Title 10 U.S.C. 1095 directs the serv- study in an accredited institution of ices to collect from third-party payers higher learning.

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(b) Transfer to naval MTFs in the provide required care. If approved, the United States. Do not transfer personnel Chief of Naval Operations will furnish, covered in this subpart to the United through the chain of command, the States solely for the purpose of obtain- commanding officer of the designated ing medical care at naval MTFs. Con- naval MTF authorization for admission sideration may be given however, in of the beneficiary for treatment. special circumstances following laws of humanity or principles of international § 728.42 NATO. courtesy. Transfer to naval MTFs in (a) NATO SOFA nations. Belgium, the United States of such persons lo- Canada, Denmark, Federal Republic of cated outside the United States re- Germany, France, Greece, Iceland, quires approval of the Secretary of the Italy, Luxembourg, the Netherlands, Navy. Naval commands, therefore, Norway, Portugal, Spain, Turkey, the should not commit the Navy by a United Kingdom, and the United promise of treatment in the United States. States. Approval generally will not be (b) Beneficiaries. The following per- granted for treatment of those who suf- sonnel are beneficiaries under the confer from incurable afflictions, who re- ditions set forth. quire excessive nursing or custodial (1) Members of NATO military services care, or those who have adequate facili- and their dependents. Military personnel ties in their own country. When a re- of NATO nations, who, in connection quest is received concerning transfer with their official duties, are stationed for treatment at a naval MTF in the in or passing through the United United States, the following procedures States, and their dependents residing apply: in the United States with the sponsor (1) Forward the request to the Chief may be provided care in naval MTFs to of Naval Operations (OP–61), with a the same extent and under the same copy to the Commander, Naval Medical conditions as comparable U.S. uni- Command, Washington, DC 20372–5120 formed services personnel and their de- for administrative processing. Include: pendents. Accordingly, the provisions (i) Patient’s full name and grade or of § 728.12 are applicable to military rate (if dependent, the sponsor’s name personnel and § 728.31(d) through § 728.34 and grade or rate also). to accompanying dependents. (ii) Country of which a citizen. (2) Military ships and aircraft per- (iii) Results of coordination with the sonnel. Crew and passengers of visiting chief of the diplomatic mission of the military aircraft and crews of ships of country involved. NATO nations which land or come into (iv) Medical report giving the his- port at NATO or U.S. military airfields tory, diagnosis, clinical findings, re- or ports within NATO countries. sults of diagnostic tests and proce- (3) NATO liaison officers. In overseas dures, and all other pertinent medical areas, liaison officers from NATO information. Army Forces or members of a liaison (v) Availability or lack thereof of detachment from such a Force. professional skills and adequacy of fa- (c) Application for care. Military per- cilities for treatment in the member’s sonnel of NATO nations stationed in own country. the United States and their dependents (vi) Who will assume financial re- will present valid Uniformed Services sponsibility for costs of hospitalization Identification and Privilege Cards (DD and travel. 1173) when applying for care. For other (2) The Chief of Naval Operations eligible persons passing through the (OP–61) will, if appropriate, obtain United States on official business and State Department clearance and guid- those enumerated in paragraph (b) (2) ance and advise the Secretary of the and (3) of this section, orders or other Navy accordingly. The Commander, official identification may be accepted Naval Medical Command will furnish in lieu of the DD 1173. the Chief of Naval Operations informa- (d) Disposition. When it becomes nection and recommendations relative to essary to return individuals to their the medical aspects and the name of home country for medical reasons, the naval MTF with the capability to make immediate notification to the

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NATO unit sponsoring the member or (viii) Patients not suitable for trans- dependent’s sponsor. Include all perti- fer to their own national organization nent information regarding the phys- must be dealt with for treatment and ical and mental condition of the indi- disposition purposes as patients of the vidual concerned. Following are details holding nation until they are trans- of agreements among the Armed ferred, i.e., they will be dealth with in Forces of NATO, CENTO, and SEATO military hospitals, military medical Nations on procedures for disposition installations, or in civilian hospitals of allied country patients by DOD med- that are part of the military medical ical installations. evacuation system of the holding na- (1) Transfer of patients. (i) The pation. tient’s medical welfare must be the (2) Classification of patients. Different paramount consideration. When decid- channels for disposition will be re- ing upon transfer of a patient, give due quired for the following two types of consideration to any increased medical patients: hazard which the transfer might in- (i) Patients not requiring admission. volve. Patients not requiring admission to an (ii) Arrangements for disposition of MTF will be returned to their nearest patients should be capable of being im- national unit under arrangements to be plemented by existing organizations. made locally. Consequently, no new establishment (ii) Patients admitted to medical instal- should be required specially for dealing lations. All such patients will be dealth with the transferring of allied casual- with per paragraph (d)(1) of this sec- ties. tion. (iii) Transfer patients to their own (e) Care authorized outside the 48 con- national organization at the earliest tiguous United States. Major overseas practicable opportunity consistent commanders may authorize care in with the observance of principles estab- naval MTFs subject to the availability lished in paragraph (d)(1) (i) and (ii) of of space, facilities, and the capabilities this section and under any of the fol- of the professional staff in emergency lowing conditions: situations only, Provided, the required care cannot reasonably be obtained in (A) When a medical facility of their medical facilities of the host country own nation is within reasonable prox- or in facilities of the patient’s own imity of the facility of the holding na- country, or if such facilities are inad- tion. equate. Provide hospitalization only (B) When the patient is determined for acute medical and surgical condi- to require hospitalization in excess of tions, exclusive of nervous, mental, or 30 days. contagious diseases or those requiring (C) Where there is any question as to domiciliary care. Administer dental the ability of the patient to perform treatment only as an adjunct to au- duty upon release from the MTF. thorized inpatient care. Do not include (iv) The decision as to whether a pa- dental prostheses or orthodontia. tient, other than one requiring transfer under paragraph (d)(1)(iii) of this sec- § 728.43 Members of other foreign mili- tion, is fit for release from the MTF is tary services and their dependents. the responsibility of the facility’s com- (a) Foreign military service members. manding officer. For the purpose of § 728.43, members of (v) All clinical documents, to include foreign military services include only: x-rays, relating to the patient will ac- (1) Military personnel carried on the company such patients on transfer to current Diplomatic List (Blue) or on their own national organization. the List of Employees of Diplomatic (vi) The decision of suitability for Missions (White) published by the De- transfer and the arrangements for partment of State. transfer will be the responsibility of (2) Military personnel assigned or at- the holding nation. tached to United States military units (vii) Final transfer channels should for duty; military personnel on foreign be arranged by local liaison before ac- military supply missions accredited to tual movement. and recognized by one of the military

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departments; and military personnel (e) Care authorized outside the 48 con- on duty in the United States at the in- tiguous United States. Major overseas vitation of the Secretary of Defense or commanders may authorize care in one of the military departments. For naval MTFs subject to the availability the purpose of § 728.43, members of for- of space, facilities, and the capabilities eign Security Assistance Training Pro- of the professional staff in emergency grams (SATP) and Foreign Military situations only. Provided, the required Sales (FMS) are not included (see care cannot reasonably be obtained in § 728.44). medical facilities of the host country (3) Foreign military personnel ac- or in facilities of the patient’s own credited to joint United States defense country, or if such facilities are inad- boards or commissions when stationed equate. Provide hospitalization only in the United States. for acute medical and surgical condi- (4) Foreign military personnel cov- tions, exclusive of nervous, mental, or ered in agreements entered into by the contagious diseases or those requiring Secretary of State, Secretary of De- domiciliary care. Administer dental fense, or one of the military depart- treatment only as an adjunct to au- ments to include, but not limited to, thorized inpatient care. Do not include United Nations forces personnel of for- dental prostheses or orthodontia. eign governments exclusive of NATO nations. § 728.44 Members of security assist- (b) Care authorized in the United ance training programs, foreign States. Military personnel of foreign na- military sales, and their ITO au- tions not covered in § 728.42 and their thorized dependents. dependents residing in the United (a) Policies—(1) Invitational travel or- States with the sponsor may be rou- ders screening. Prior to determining the tinely provided only outpatient med- levels of care authorized or the govern- ical care in naval MTFs on a reimburs- ment or person responsible for payable basis. Provided, the sponsor is in ment for care rendered, carefully the United States in a status officially screen ITOs to detect variations appli- recognized by an agency of the Depart- cable to certain foreign countries. For ment of Defense. Dental care and hos- example, unless orders state dif- pitalization for such members and ferently, Kuwait has a civilian health their dependents are limited to emer- plan to cover medical expenses of their gencies. All outpatient care and hos- trainees; trainees from the Federal Re- pitalization in emergencies are subject public of Germany are personally re- to reimbursement as outlined in sponsible for reimbursing for inpatient § 728.46. care provided to their dependents; and (c) Application for care. All personnel all inpatient medical services for train- covered by § 728.43 will present orders ees from France and their dependents or other official U.S. identification are to be borne by the individual train- verifying their status when applying ee. for care. (2) Elective and definitive surgery. The (d) Disposition. When it becomes nec- overall policy with respect to elective essary to return individuals covered by and definitive surgery for Security As- § 728.43 to their home country for med- sistance Training Program (SATP), ical reasons, make immediate notifica- Foreign Military Sales (FMS) per- tion to the sponsoring unit of the pa- sonnel and their dependents is that tient or patient’s sponsor with a copy conservatism will at all times prevail, to the Chief of Naval Operations (OP– except bona fide emergency situations 61). Include all pertinent information which might threaten the life or health regarding the physical and mental con- of an individual. Generally, elective dition of the individual concerned and care is not authorized nor should be full identification, diagnosis, prog- started. However, when a commanding nosis, estimated period of hospitaliza- officer of a naval MTF considers such tion, and recommended disposition. Ad- care necessary to the early resumption ditionally, the provisions of § 728.42(d) and completion of training, submit the (1) and (2) apply. complete facts to the Chief of Naval

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Operations (OP–63) for approval. In- sonnel and their dependents except clude the patient’s name (sponsor’s that: also if patient is an ITO authorized de- (A) Dependent dental care is not au- pendent), grade or rate, country of ori- thorized. gin, diagnosis, type of elective care (B) Dependents are not authorized co- being sought, and prognosis. operative care under CHAMPUS. (3) Prior to entering training. Upon ar- (ii) International military education rival of an SATP or FMS trainee in the and training (IMET). Subject to reim- United States or at an overseas train- bursement for inpatient care at the ap- ing site, it is discovered that the train- propriate IMET rate for members or at ee cannot qualify for training by rea- the full reimbursement rate for de- son of a physical or mental condition pendents, IMET personnel of NATO na- which will require a significant amount tions who are in the United States or of treatment before entering or com- at U.S. Armed Forces installations out- pleting training, return such trainees side the United States and accom- to their home country immediately or panying dependents will be provided as soon thereafter as travel permits. medical and dental care in naval MTFs (4) After entering training. When train- to the same extent and under the same ees require hospitalization or are dis- conditions as comparable United abled after entering a course of train- States military personnel and their de- ing, return them to their home country pendents except that: as soon as practicable when, in the (A) Dependent dental care is not authorized. opinion of the commanding officer of (B) Dependents are not authorized co- the medical facility, hospitalization or operative care under CHAMPUS. disability will prevent training for a (2) Other foreign members and ITO au- period in excess of 30 days. Forward a thorized dependents—(i) Foreign military copy of the patient’s clinical records sales. Subject to reimbursement by the with the patient. When a trainee is ac- trainee or the trainee’s government for cepted for treatment that is not ex- both inpatient and outpatient care at pected to exceed 30 days, notify the the full reimbursement rate, FMS per- commanding officer of the training sonnel of non-NATO nations and ITO acvitity. Further, when a trainee is authorized accompanying dependents scheduled for consecutive training ses- may be provided medical and dental sions convening prior to the expected care on a space available basis when fa- data of release from a naval MTF, cilities and staffing permit except that: make the next scheduled training ac- (A) Prosthetic devices, hearing aids, tivity an information addressee. Upon orthopedic footwear, and similar ad- release from the MTF, direct such juncts are not authorized. trainees to resume training. (B) Spectacles may be furnished when (b) Care authorized. Generally, all required to enable trainees to perform SATP and FMS personnel and their their assigned duties, Provided the re- ITO authorized dependents are entitled quired spectacles are not available to care to the same extent. However, through civilian sources. certain agreements require that they (C) Dental care is limited to emer- be charged differently and that certain gency situations for the military mem- exclusions apply. ber and is not authorized for depend- (1) NATO members and their ITO au- ents. thorized dependents—(i) Foreign military (D) Dependents are not authorized sales (FMS). Subject to reimbursement cooperative care under CHAMPUS. per § 728.46, FMS personnel of NATO na- (ii) International military education tions who are in the United States or and training. Subject to reimbursement at U.S. Armed Forces installations out- for both inpatient and outpatient care side the United States and their ac- at the appropriate rates for members companying ITO authorized dependents and dependents, IMET personnel of will be provided medical and dental non-NATO nations may be provided care in naval MTFs to the same extent medical and dental care on a space and under the same conditions as com- available basis when facilities and parable United States military per- staffing permit except that:

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(A) Prosthetic devices, hearing aids, § 728.42(b)(1), Provided, the beneficiaries orthopedic footwear, and similar ad- are not stateless persons nor nationals juncts are not authorized. of any state which is not a party to the (B) spectacles may be furnished when North Atlantic Treaty, nor nationals required to enable trainees to perform of, nor ordinarily residents in the their assigned duties, Provided the re- United States. quired spectacles are not available (2) Others. Civilian personnel not cov- through civilian sources. ered in § 728.45(b)(1) (and their depend- (C) Dental care is limited to emer- ents residing with them) accompanying gency situations for military members personnel of foreign nations on duty in and is not authorized for dependents. the United States at the invitation of (D) Dependents are not authorized the Department of Defense or one of cooperative care under CHAMPUS. the military departments. (c) Application for care. Trainees and accompanying dependents will present (c) Application for care. Personnel cov- official U.S. identification or orders ered by the provisions of § 728.45 will verifying their status when applying present orders or other official U.S. for care. If any doubt exists as to the identification verifying their status extent of care authorized, ITOs should when applying for care. be screened (see paragraph (a)(1) of this section). § 728.46 Charges and collection. (d) Notification. When trainees require (a) Policy. Pub. L. 99–591, section 9029, hospitalization as a result of illness or contains provisions prohibiting the ex- injury prior to or after entering train- penditure of appropriated funds ing, the training activity (the hospital ‘‘. . . to provide medical care in the if patient has been admitted) will make United States on an inpatient basis to a message report through the normal foreign military and diplomatic per- chain of command to the Chief of Naval sonnel or their dependents unless the Operations (OP–63) with information Department of Defense is reimbursed copies to MAAG, COMNAV MEDCOM, for the costs of providing such care: Navy International Logistics Control Provided, That reimbursements Office (NAVIL CO), Unified Com- . . . shall be credited to the appropria- mander, the affected office, and the tions against which charges have been foreign naval attache concerned. In- clude details of the incident, estimated made for providing such care, except period of hospitalization, physical or that inpatient medical care may be mental condition of the patient, and di- provided in the United States without agnosis. For further amplification, see cost to military personnel and their de- OPNAVINST 4950.1H and pendents from a foreign country if NAVCOMPTMAN 032103. comparable care is made available to a comparable number of United States § 728.45 Civilian components (employ- military personnel in that foreign ees of foreign military services) and country.’’ their dependents. (b) Canadian agreement. On 3 Novem- (a) Care authorized. Beneficiaries cov- ber 1986, the Department of National ered in this section are only authorized Defence of Canada and DOD concluded care in naval MTFs in the United a comparable care agreement that cov- States and then only civilian humani- ers certain military personnel. The tarian emergency care on a reimburs- agreement stipulates that: able basis (subpart J) rendered at in- (1) DOD will, upon request, provide stallations which have been designated Canadian Forces members the same as remote by the Secretary of the range of medical and dental services Navy. Make arrangements to transfer such beneficiaries to a civilian facility under the same conditions and to the as soon as their condition permits. same extent as such services are pro- (b) Potential beneficiaries—(1) NATO. vided comparable United States mili- Civilian employee personnel (and their tary personnel. Inasmuch as the agree- dependents residing with them) accom- ment covers only certain military per- panying military personnel in sonnel, the reimbursement provisions

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of Pub. L. 99–591 remain in effect for in- services are ordered can produce them patient care provided to Canadian dip- or obtain them by contract, and the in- lomatic personnel, Canadian depend- ternal or inter-agency procurement is ents, and Canadian foreign military more convenient, or less expensive, sales trainees who receive care in the than commercial procurement. Provi- United States. Further: sions of the Economy Act apply to re- (2) Permanently stationed Canadian quests from other Federal agencies for units with established strengths of medical and dental care for bene- more than 150 personnel are expected ficiaries for whom they are responsible. to have integral health care capability. Consult specific provisions of the Act Any health care services which mem- respecting financial and acounting lim- bers of such units receive from the host itations and requirements. nation will be provided on a full reimbursement basis. Groups of larger than § 728.52 Veterans Administration bene- 150 personnel, which conduct collective ficiaries (VAB). training in the United States, are expected to deploy with an organic unit (a) Eligible beneficiaries—Those who medical capability. Naval MTFs may have served in the Armed Forces, have be requested to provide services, be- been separated under conditions other yond the capability of the organic unit, than dishonorable, and have been de- at full reimbursement rates. termined by the Veterans Administra- (c) Procedures. (1) Until otherwise dition (VA) to be eligible for care at VA rected, naval MTFs in the 50 United expense. Prior to 7 September 1980, vet- States will collect the full reimburse- erans status could be obtained by vir- ment rate (FRR) for inpatient care pro- tue of 1 day’s honorable service. The vided to all foreign military personnel following restrictions do not apply to (except Canadians covered by the com- individuals who are discharged from parable care agreement in § 728.46(b), active duty because of a disability or and military personnel connected with who were discharged for reasons of a Foreign Military Sales (FMS) case ‘‘early out’’ or hardship program under number), foreign diplomatic personnel, 10 U.S.C. 1171 and 1173. and to the dependents of both whether (1) For individuals with an original they are in the United States on offi- enlistment in the military service after cial duty or for other reasons. 7 September 1980, the law generally de- (2) Subpart J contains procedures for nies benefits, including medical care. the initiation of collection action when (2) For individuals entering service inpatient care is rendered to bene- after 16 October 1981, the law generally ficiaries from NATO nations and when denies medical benefits when such indi- either inpatient or outpatient care is rendered to all others enumerated in viduals do not complete the shorter of: this part. Chapter II, part 4 of (i) Twenty-four months of continuous NAVMED P–5020 is applicable to the active duty, or collection of and accounting for such (ii) The full period for which that charges. person was called or ordered to active duty. Subpart F—Beneficiaries of Other (b) Inpatient control—Each VAB ad- Federal Agencies mitted will be required to conform to regulations governing the internal ad- § 728.51 General provisions—the ministration of the naval facility. Re- ‘‘Economy Act.’’ strictive or punitive measures, includ- The Economy Act, 31 U.S.C. 1535, gen- ing disciplinary action or denial of erally permits agency heads, or heads privileges, will conform as nearly as of major organizational units of agen- possible to VA instructions. cies, to procure goods and services (c) Resolution of problems—All prob- from other agencies or within their lems pertaining to VABs, including ad- own agency so long as funds for pro- mission, medical or other records, and curement are available, the order is in all correspondence will be matters of the best interest of the Government, resolution between the commanding of- the source from which the goods or ficer of the naval facility and the VA

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office of jurisdiction authorizing ad- pabilities and workload permit pro- mission. Questions of policy and ad- viding such care. In an emergency, pro- ministration which cannot be so re- vide necessary care. solved will be forwarded, through the (3) Physical examinations. Upon a de- normal chain of command, to the Ad- termination by a naval MTF com- ministrator of Veterans Affairs via manding officer that space, facilities, COMNAVMEDCOM for resolution. and capabilities exist, naval MTFs may (d) Care in the United States—(1) Inpa- provide physical examinations when re- tient care. An eligible VAB may be ad- quested by the VA for the purpose of mitted to a naval MTF on presentation adjudicating claims for VA physical of a written authorization for admis- disability compensation. If authorized sion signed by an official of the VA of- by the VA, patients may be admitted fice of jurisdiction. Neurological and when the examination requires more certain neuropsychiatric patients with- than 1 day. out obvious evidence of psychosis and (4) Dental care. Limit dental treat- not requiring restraints, and instances of suspected tuberculosis, may be ad- ment to inpatients who require serv- mitted for diagnosis. When diagnosed, ices adjunctive to medical or surgical promptly report instances of psychosis, conditions for which hospitalized. psychoneurosis, and tuberculosis of (e) Care outside the United States—(1) present clinical significance to the VA Eligible beneficiaries. Beneficiaries de- office of jurisdiction with a request for scribed in paragraph (a) of this section transfer to a VA facility. who are citizens of the United States (i) Extent of care. Provide eligible and residing or sojourning abroad may, VABs medical and surgical care, in- within the capabilities of the facility cluding prostheses such as eyes and as determined by the commanding offi- limbs and appliances such as hearing cer, be provided inpatient and out- aids, spectacles, or orthopedic appli- patient care upon presentation of an ances when required for the proper authorization from the appropriate VA treatment of the condition upon which office of jurisdiction listed in para- eligibility is based. graph (e)(3) of this section. (ii) Disposition of emergency admission. (2) Emergency care. Overseas naval Notify the appropriate VA office of ju- MTFs furnishing emergency care to po- risdiction by message or other expedi- tential VABs will promptly notify the tious means within 72 hours after the appropriate VA office of jurisdiction date and hour of an emergency admis- and request authorization for treat- sion of a potential VAB. Include a re- ment and instructions for disposition quest for an authorization for admis- of the patient. sion and emergency treatment. If VA (3) Offices of jurisdiction. The fol- denies VAB status to such a person ad- lowing activities are vested with re- mitted in an emergency, the provisions sponsibility for issuing authorizations of § 728.81(a) are applicable. Once ad- for care and furnishing dispisition in- mitted in an emergency situation, structions for VABs in overseas naval discharage a VAB promptly upon ter- MTFs: mination of the emergency unless ar- (i) In the Trust Territory of the Pa- rangements have been made with the cific (Micronesia), VA Office, Honolulu, VA office of jurisdiction: Hawaii. (A) For transfer to a VA treatment facility if further treatment is re- (ii) In the Philippines, VA Regional quired. Office, Manila, Philippines. (B) To retain the patient as a VAB in (iii) In Canada, Canadian Department the naval MTF. of Veterans Affairs, Ottawa, Canada. (2) Outpatient care. Outpatient care, (iv) In all other foreign countries, including post hospitalization out- consular offices of U.S. embassies. patient care, may be provided upon au- (f) Forms required. (1) Complete a VA thorization by the VA office of jurisdic- 10–10 (Application for Medical Benefits) tion. When outpatient followup care is when potential VABs are admitted for requested, commanding officers are re- emergency care without prior author- sponsible for determining whether ca- ization.

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(2) Prepare a VA 10–10m (Medical Cer- (ii) Flight instructions. tificate and History) when care is ren- (iii) Travel to or from training or dered. All information required in the flight instructions. medical certificate thereon will be fur- (2) The following employees of the nished whether the admission is subse- Government of the United States, re- quently approved or disapproved by the gardless of nationality or place of VA office of jurisdiction. work, are entitled to receive care as (3) Since the completion of VA 10– outlined in paragraph (e) of this sec- 10m requires an examination of pation for work incurred traumatic inju- tients, admissions which are dis- ries at the expense of OWCP. (In addi- approved will be reported as medical tion to injury by accident, a disease or examinations on DD 7A, Report of illness which is the proximate result of Treatment Furnished Pay Patients, performance of employment duties is Outpatient Treatment Furnished (part considered an injury.) This category in- B) (See subpart J). cludes but is not limited to: (4) Prepare and submit a DD 7 (Re- (i) Civilian student employees in port of Treatment Furnished Pay Pa- training at Navy and Marine Corps fa- tients, Hospitalization Furnished (part cilities. A)) on all VABs and potential VABs ad- (ii) Civilian seamen in the service of mitted (see subpart J). vessels operated by the Department of (5) Complete an SF 502 (Narrative the Army (see paragraph (a)(7) of this Summary) or SF 539 (Abbreviated Clin- section and § 728.80(c)(2) for civilian ical Record), as appropriate, when a Military Sealift Command (MSC) per- VAB or potential VAB is discharged or sonnel). otherwise released. When an interim (iii) All civilian employees of the report of hospitalization is requested Government except nonappropriated- by the VA office of jurisdiction, it may fund-activity employees. Nonappro- be prepared on an SF 502. priate fund employees may be covered under the Longshore and Harbor Work- § 728.53 Department of Labor, Office of ers’ Compensation Act (contact cog- Workers’ Compensation Programs nizant district office of OWCP). (OWCP) beneficiaries. (3) Civilian members of the Civil Air (a) Potential beneficiaries. The fol- Patrol (except Civil Air Patrol Cadets) lowing may be beneficiaries of one of for injury or disease which is the proxi- the programs sponsored by the Office of mate result of active service or travel Workers’ Compensation Programs to and from such service, rendered in (OWC) under the conditions set forth. performance or support of operational They are not beneficiaries of OWCP missions of the Civil Air Patrol under until authorized as such by the appro- the direction and written authority of priate district officer of OWCP. How- the Air Force. ever, they may be carried as potential (4) Former Peace Corps enrollees for beneficiaries pending OWCP determina- injury or disease which is the proxi- tion of eligibility. DOD civilian em- mate result of their former employ- ployees provided medical services ment with the Peace Corps or which under a Defense or service health pro- was sustained or contracted while lo- gram are not included under this au- cated with the Peace Corps outside the thority (see subpart G). United States and its territories. (1) Members and applicants for mem- (5) Former Job Crops enrollees for in- bership in the Reserve Officers’ Train- jury or disease which is the proximate ing Corps of the Navy, Army, and Air result of employment with the Job Force, provided the condition necessi- Corps. tating treatment was incurred in line (6) Former VISTA (Volunteers in of duty during an off-campus training Service to America) enrollees for in- regimen. Such care is authorized for injury or disease which is the proximate jury (a disease or illness which is the result of employment with VISTA. proximate result of performance of (7) Military Sealift Command (MSC) training is considered an injury) in- civilian marine personnel curred while engaged in: (CIVMARPERS or CIVMARS) (includ- (i) Training. ing temporary employees, intermittent

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employees, and employees with less (iii) Be referred to a non-Federal than 1 year’s service) are entitled to source of care where back-to-work care occupationally related care at the ex- may be provided at the CIVMAR’s expense of OWCP. CIVMARS are in a pense after, if necessary, the imme- crew status only after reporting to diate emergency is alleviated when a their assigned ship. They are in a trav- reasonable determination can be made el status from crewing point to ship that the injury or illness is not occupa- and return. While in a travel status, tionally related. they are entitled to the same health (A) Per 5 U.S.C. 7901(c)(3), the health care benefits as other Federal civil service program for Federal civilian service employees in a travel status (5 employees is limited to referral of em- U.S.C. 8101). CIVMARS presenting for ployees, upon their request, to private treatment with a properly completed sources of care. CA–16, Request for Examination and/or (B) Long term extended care of Treatment, will: chronic illnesses such as hypertension, (i) Enter the naval MTF’s system diabetes, etc., is not authorized in through the occupational medicine naval MTFs at the expense of OWCP service. nor at the CIVMAR’s personal expense. (ii) Be treated for any injury or dis- (C) Patients who cannot be referred, ease proximately caused by their em- because of medical reasons or because ployment. Although the actual deter- non-Federal sources are not available mination of whether an illness or in- or available but inadequate, may be re- jury is occupationally related is a func- tained in naval MTFs at the expense of tion of OWCP, determinations are the CIVMAR or of his or her private in- based on the required injury report along with the treatment record from surance until transfer becomes pos- the attending physician. Therefore, sible. Although the means of access to when doubt exists as to the relation- the naval MTF may have been through ship of the condition to the potential the occupational medicine service, re- patient’s employment, the physician tention in the naval MTF is on a civil- should report an unbiased medical con- ian humanitarian basis. This is also ap- clusion and the medical rationale plicable when OWCP disallows a therefor, indicating the conditions CIVMAR’s claim (see paragraph (c) of which are responsible for the claim- this section). ant’s disability. As a general rule, the (b) Authorization required. Personnel following may be initially considered in paragraph (a) (1) through (6) may be as occupationally related, however, it rendered inpatient and outpatient care should be emphasized that OWCP is the as outlined in paragraph (e) of this sec- final approval authority: tion, unless otherwise stipulated in (A) Any injury or illness occurring as this section, upon presentation of a a direct result of employment. May properly prepared and signed author- occur on a ship, at a Government in- ization from CA–16 (Request for Exam- stallation ashore, or in an aircraft ination and/or Treatment). District of- while performing a requirement of em- fices of OWCP will honor these author- ployment. izations for 60 days unless written no- (B) Any injury or illness which be- tice of termination of authorization is comes manifest while away from work given earlier. Whereas the CA–16 is (on leave or liberty) while in a crew used primarily for traumatic injuries, status or travel status as long as the it may also be used to authorize exam- condition may be directly related to ination and treatment for disease or job activities or to exposures incident illness provided the affected agency to travel to ship assignment. has obtained prior permission from the (C) Required immunizations. cognizant district office of OWCP. If (D) Required physical examinations. the condition for which treatment is (E) Periodic medical surveillance requested appears related to employ- screening examinations for DOD occu- ment, treatment of beneficiaries in pational and industrial health pro- paragraph (a) (1) through (7) of this sec- grams, i.e., asbestos medical surveil- tion may be initiated without presen- lance, hearing conservation, etc. tation of a CA–16. Patients provided

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treatment without a CA–16 may be car- other orthopedic and prosthetic devices ried as OWCP beneficiaries from the will be replaced or repaired, except time of initial treatment, provided the that eyeglasses and hearing aids will appropriate district office of OWCP is not be replaced or repaired unless their notified and requested to submit a CA– damage or destruction is incidental to 16 within 48 hours giving authorization a personal injury requiring medical as of the date of actual treatment. services. OWCP will not be liable for payment of (2) Outpatient care. Complete medical bills for unauthorized treatment. Post and surgical care not requiring hos- hospitalization care following author- pitalization, and posthospitalization ized inpatient care does not require an services following authorized inpatient additional authorization. First aid care in a naval MTF for the proper treatment rendered civilian employees treatment of the condition upon which does not require an authorization form eligibility is based. (c) Disallowance by OWCP. When (3) Dental care. Limit dental treat- OWCP determines that any claim ment to emergencies and that care nec- should be disallowed, OWCP will advise essary as an adjunct to inpatient hos- the naval facility rendering care that pital care authorized in advance. Such no further treatment should be ren- care will not include dental prostheses, dered at OWCP expense. The patient unless specifically authorized, nor or- ceases to be an OWCP beneficiary as of thodontic treatment. the date of receipt of the notice of dis- (f) Reports and records. (1) Copies of allowance by the naval MTF and the medical records will accompany OWCP patient will be so notified. Any treat- patients being transferred from one ment subsequent to the date of receipt medical treatment facility to another. of the notice of disallowance will be at Records accompanying OWCP patients the personal expense of the patient (see to a debarkation hospital will be the § 728.81(a)). same as for military personnel and will (d) Authorization for transfer. Prior clearly identify the patient as an approval of OWCP is required before a OWCP beneficiary. transfer can be effected, except in an (2) Forward a CA–20 (Attending Phy- emergency or when immediate treat- sician’s Report) to the appropriate dis- ment is deemed more appropriate in trict office of OWCP on discharge of another Federal facility. When transfer the patient unless hospitalization ex- is effected without approval, the trans- ceeds 1 month. In such instances, a referring facility will immediately report will be submitted every 30 days. quest such authorization from the ap- When extensive hospitalization is re- propriate district office of OWCP. quired, use an SF 502 or a narrative for- When authorized by OWCP, evacuation mat in lieu of CA–20. When submitted to the United States can be effected per to OWCP, the physician’s report will OPNAVINST 4630.25B. Medical records include: and a CA–16 will accompany such pa- (i) History. tients. (ii) Physical findings. (e) Care authorized—(1) Inpatient care. (iii) Laboratory findings. Medical and surgical care necessary for (iv) Abstract of hospital records. the proper treatment of the condition (v) Diagnosis for conditions due to in- upon which eligibility is based. Spe- jury and not due to injury. cific OWCP authorization is required (vi) Rationalized medical opinion for before major surgical procedures can the physician’s belief that the illness be performed unless the urgency of the or disease treated was causally related situation is such that time does not to a specific condition or set of condi- permit obtaining said authorization. tions to which the claimant was sub- All necessary prostheses, hearing aids, jected. spectacles, and orthopedic appliances (vii) Condition on discharge with will be furnished when required for opinion as to degree of impairment due proper treatment of the condition upon to injury, if any. which eligibility is based. Upon specific (3) Complete and submit, per subpart authorization, damaged or destroyed J, a DD 7 (Report of Treatment Fur- medical braces, artificial limbs, and nished Pay Patients, Hospitalization

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Furnished, part A) or DD 7A (Report of (1) Inpatient care. Necessary medical Treatment Furnished Pay Patients, and surgical care. Outpatient Treatment, part B) when (2) Outpatient care. Necessary medical outpatient or inpatient care is ren- and surgical care. dered to any OWCP beneficiary. (3) Dental care. (i) Limit dental care in the United States, its territories, § 728.54 U.S. Public Health Service possessions, and the Commonwealth of (USPHS), other than members of the uniformed services. Puerto Rico to emergencies for the relief of pain or acute conditions and (a) Potential beneficiaries. The fol- that necessary as an adjunct to inpa- lowing may be beneficiaries of the tient hospital care. Prosthetic dental USPHS for care in naval MTFs upon appliances and permanent restorations submission of the necessary form from are not authorized. appropriate officials as outlined in (ii) In overseas areas, dental care is paragraph (b) of this section. authorized to the extent necessary (1) Within and outside the United pending the patient’s return to the States. Any individuals the USPHS may United States, its territories, posses- determine to be eligible for care on an sions, or the Commonwealth of Puerto interagency reimbursable basis. Rico. (2) Within the 48 Contiguous United (d) Report. Complete and submit, per States and the District of Columbia. subpart J, a DD 7 (Report of Treatment American Indians, Alaska Natives, Es- Furnished Pay Patients, Hospitaliza- kimos, and Aleuts. tion Furnished, part A) or a DD 7A (Re- (3) In Alaska. American Indians, Eski- port of Treatment Furnished Pay Pa- mos, and Aleuts. tients, Outpatient Treatment, part B) (b) Authorization required—(1) Normal when outpatient or inpatient care is circumstances. An American Indian or rendered. Alaska Native may be rendered inpatient care upon presentation of form § 728.55 Department of Justice bene- HRSA 43 (Contract Health Service Pur- ficiaries. chase Order for Hospital Services Ren- Upon presentation of a letter of au- dered) or HRSA form 64 (Purchase/De- thorization that includes disposition of livery Order for Contract Health Serv- SF 88 (Report of Medical Examination), ices Other Than Hospital Inpatient or SF 93 (Report of Medical History), and Dental). Either form must be signed by address for submission of claim, the an appropriate Indian Health Service following personnel may be furnished or Alaska Native Health Service area/ requested care as beneficiaries of the program official. Department of Justice. See subpart J (2) Emergencies. In an emergency, care on completing and submitting forms may be rendered upon written request for central collection of the cost of of patient’s commanding officer or su- care provided. perior officer, or the patient if neither of the above is available. When emer- (a) Federal Bureau of Investigation. In- gency care is rendered without prior vestigative employees of the Federal authorization, the facility rendering Bureau of Investigation (FBI) and ap- care must notify the service unit direc- plicants for employment as special tor of the patient’s home reservation agents with the FBI may be provided: within 72 hours from the time such (1) Immunizations. care is rendered unless extenuating cir- (2) Physical examinations and hos- cumstances preclude prompt notifica- pitalization when required to deter- tion. mine physical fitness. Use this period (c) Care authorized. Unless limited by of hospitalization for diagnostic pur- the provisions stipulated in paragraph poses only. Do not correct disquali- (a) of this section and subject to the fying defects. provisions of § 728.3, the following care (b) U.S. Marshals. U.S. Marshals may may be rendered, when requested, to receive physical examinations and hos- all beneficiaries enumerated in para- pitalizations when required to deter- graph (a) of this section. mine physical fitness. Use this period

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of hospitalization for diagnostic pur- (3) Agents of the U.S. Customs Serv- poses only. Do not correct disquali- ice and their prisoners (detainees) may fying defects. be provided emergency medical treat- (c) Claimants against the United States. ment and evacuation services to the Claimants whose suits or claims nearest medical facility (military or ci- against the United States are being de- vilian) in those remote areas of the fended by the Department of Justice United States where no other such may be furnished physical examina- services are available. Limit evacu- tions to determine the extent and na- ation to the continental United States ture of the injuries or disabilities being and do not cross borders. The Navy’s claimed. Hospitalization is authorized responsibility for medical care of such for proper conduct of the examination. prisoners terminates once the medical Upon completion, forward the report of emergency has been resolved. Guarding the examination promptly to the U.S. of prisoners, while they or their cap- Attorney involved. tors are receiving treatment at naval MTFs, remains the responsibility of § 728.56 Treasury Department bene- the U.S. Customs Service or other ap- ficiaries. propriate Federal (nonmilitary) law en- (a) Potential beneficiaries. The fol- forcement agencies. lowing may be beneficiaries of the (c) Reports and records. (1) When ex- Treasury Department and may be ren- aminations are rendered to Secret dered care as set forth below. Service Special Agents and support (1) Secret Service Special Agents and personnel, forward one copy of the SF support personnel. 88, one copy of the SF 93, and one copy (2) Secret Service Agents providing of any forms provided with the letter of protection to certain individuals. authorization to United States Secret (3) Persons being provided protection Service, Administrative Operations Di- by the Secret Service. vision, Safety and Health Branch, 1800 (4) Agents of the U.S. Customs Serv- G Street, NW., Room 845, Washington, ice. DC 20223 or as otherwise directed by (5) Prisoners (detainees) of the U.S. the letter of authorization. Provide an Customs Service. information copy to the Deputy Comp- (b) Care authorized. (1) Secret Service troller of the Navy. Special Agents may be provided rou- (2) Complete and submit, per subpart tine annual physical examinations J, a DD 7 (Report of Treatment Fur- upon request and presentation of a let- nished Pay Patients, Hospitalization ter of authorization. Conduct and Furnished, part A) or DD 7A (Report of record examinations in the same man- Treatment Furnished Pay Patients, ner as routine examinations rendered Outpatient Treatment, part B) when naval officers except that they may be outpatient or inpatient care is ren- conducted only on an outpatient basis. dered. If hospitalization is considered desirable in connection with an examina- § 728.57 Department of State and asso- tion, patient administration depart- ciated agencies. ment personnel will contact the United Eligibility for care under the provi- States Secret Service at (202) 535–5641 sions of this section will be determined at the address in paragraph (c) of this by the Department of State, Office of section. Enter a statement, attesting Medical Services. to the fact that hospitalization is de- (a) Beneficiaries. Officers and employ- sirable, in item 73 or 75 of the SF 88, as ees of the following agencies, their de- appropriate, before forwarding to the pendents, and applicants for appoint- United States Secret Service as di- ment to such agencies are authorized rected by the letter of authorization. inpatient and outpatient medical care (2) Secret Service Agents providing as set forth below in addition to that protection to certain individuals and care that may be authorized elsewhere those persons being provided such pro- within this part (i.e., §728.53, § 728.55, tection may be rendered all required § 728.56, and § 728.58). Limit dental care medical services including hospitaliza- to that delineated in paragraph (b)(6) of tion subject to the provisions of § 728.3. this section.

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(1) Department of State-U.S.Arms eligibility for care at the expense of Control and Disarmament Agency and one of the agencies, all care provided the Office of International Conferences. will be at the expense of the patient or (2) U.S. Agency for International De- patient’s sponsor and charged at the velopment. full reimbursement rate. (3) International Communications (3) In the United States. (i) Care is not Agency. authorized for an injury or illness in- (4) ACTION—Peace Corps Staff. curred in the United States. Authoriza- (5) Department of Agriculture—For- tions and other arrangements for care eign Agriculture Service. in the United States for individuals in- (6) Department of Commerce—Bureau curring injury or illness outside the of Public Roads. United States will be provided by the (7) Department of Interior—Bureau of Deputy Assistant Secretary for Med- Reclamation and the U.S. Geological ical Services, Department of State, Survey. using appropriate authorization (8) Department of Transportation— form(s). When personnel are admitted Federal Aviation Administration and in an emergency without prior author- the Federal Highway Administration. ization, the commanding officer of the (9) Department of Justice—Drug En- admitting naval MTF will immediately forcement Agency. request authorization from the Deputy (10) Department of Treasury—U.S. Assistant Secretary for Medical Serv- Customs, U.S. Secret Service, Office of ices. International Affairs (OIA), U.S.— (ii) The extent of care furnished in Saudi Arabian Joint Commission for the United States, to individuals in Economic Cooperation (JECOR), and paragraph (a) of this section who are the Internal Revenue Service. evacuated to the United States for (11) National Aeronautics and Space medical reasons, will be comparable in Administration. all respects to that which is authorized (12) Library of Congress. or prescribed for these individuals out- (13) Beneficiaries of such other agen- side the United States. When deter- cies as may be included in the Depart- mined appropriate by the Deputy As- ment of State Medical Program. sistant Secretary for Medical Services, (b) Care authorized—(1) General. The officers and employees and their ac- Foreign Service Act of 1946, as amend- companying dependents who have re- ed, authorizes care delineated in this turned to the United States for non- section. Subject to the restrictions and medical reasons may be furnished med- priorities of § 728.3 and the restrictions ical care at the expense of one of the of this section, care may be rendered at above agencies for treatment of an ill- the expense of the Department of State ness or injury incurred while outside or one of the agencies listed in para- the United States. graph (a) of this section. The law al- (4) Physical examinations. The Sec- lows for payment when care is fur- retary of State is authorized to provide nished for an illness or injury which re- for comprehensive physical examina- sults in hospitalization or equal treat- tions, including dental examinations ment. Outpatient care is only author- and other specific testing, of applicants ized as an adjunct to hospitalization. for employment and for officers and (2) Overseas. (i) When, in the opinion employees of the Foreign Service who of the principal or administrative offi- are U.S. citizens and for their depend- cer of an overseas post of the Depart- ents, including examinations necessary ment of State, an individual meets the to establish disability or incapacity for conditions of eligibility, the post will retirement purposes. An authorization furnish authorization to the naval will be executed by an appropriate De- MTF for care at the expense of the De- partment of State official and fur- partment of State or one of the agen- nished in duplicate to the naval MTF, cies listed in paragraph (a) of this sec- listing the type of examination re- tion. quired and stating that the individual (ii) Should the Department of State is entitled to services at the expense of official determine that the illness or the Department of State. Furnish re- injury does not meet the conditions of ports per the letter of authorization.

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(5) Immunizations. Inoculations and istries, and audiograms, without inter- vaccinations are authorized for offi- pretation in support of the medical sur- cers, employees, and their dependents veillance program for ATCS personnel upon written authorization from an ap- established by the FAA. propriate Department of State official. (d) Report. Complete and submit, per This authorization, in duplicate, will subpart J, a DD 7A (Report of Treat- include the type of inoculation or vac- ment Furnished Pay Patients, Out- cination required and will state that patient Treatment, part B) outpatient the individual is entitled to services at care is rendered. the expense of the Department of State. Furnish reports per the letter of § 728.59 Peace Corps beneficiaries. authorization. (a) Potential beneficiaries. (1) Appli- (6) Dental care. Limit dental care to cants for the Peace Corps. emergencies for the relief of pain or (2) Peace Corps Volunteers. acute conditions, or dental conditions (3) Minor children of a Peace Corps as an adjunct to inpatient care. Do not volunteer living with the volunteer. provide prosthetic dental appliances. (b) Care authorized in the United (c) Evacuation to the United States. States. Upon written request of a Peace Should a beneficiary in an overseas Corps official, stating care to be pro- naval MTF require prolonged hos- vided and disposition of reports, the pitalization, the commanding officer of following may be provided subject to the overseas facility will report the re- the provisions of § 728.3. quirement to the nearest Department (1) Physical examinations. Physical ex- of State principal or administrative of- aminations are authorized on an out- ficer and request authority to return patient basis only. Except for interpre- the patient to the United States. Re- tation of x-rays, make no assessment lease dependents who decline evacu- of the physical qualifications of ation to the custody of their sponsor. examinees. Aeromedical evacuation may be used per OPNAVINST 4630.25B. Travel of an (i) Preselection physical examination attendant or attendants is authorized may be provided applicants (volun- at Department of State expense when teers) for the Peace Corps. the patient is too ill or too young to (ii) Separation or other special phys- travel unattended. ical examinations may be provided vol- (d) Report. Complete and submit, per unteers and their dependents as listed subpart J, a DD 7 (Report of Treatment in paragraph (a)(3) of this section. Un- Furnished Pay Patients, Hospitaliza- less otherwise prescribed in written re- tion Furnished, part A) or DD 7A (Re- quests, report such examinations of port of Treatment Furnished Pay Pa- Peace Corps volunteers on SF–88 and tients, Outpatient Treatment, part B) SF–93. Include: when outpatient or inpatient care is (A) Medical history and systemic re- rendered. view. (B) Chest x-ray with interpretation. § 728.58 Federal Aviation Agency (C) Complete urinalysis, serology, (FAA) beneficiaries. and blood type. (a) Beneficiaries. Air Traffic Control (D) Pelvic examination and Pap Specialists (ATCS) of the FAA when smear for all female volunteers. appropriate authorization has been fur- (E) Hematocrit or hemoglobin for all nished by the FAA regional representa- females and for all males over 40 years tive. of age. (b) Authorization. Written authoriza- (F) Electrocardiogram for all volun- tion from an FAA Regional Flight Sur- teers over 40 years of age. geon is required and will include in- (2) Immunizations. Immunizations, as structions for forwarding the results of requested, may be provided all bene- services rendered. ficiaries listed in paragraph (a) of this (c) Care authorized. Subject to the section. provisions of § 728.3, authorized per- (3) Medical care. Both inpatient and sonnel may be rendered chest x-rays, outpatient care may be provided volun- electrocardiograms, basic blood chem- teers for illnesses or injuries occurring

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during their period of service which in- (d) Report. Complete and submit, per cludes all periods of training. Depend- subpart J, a DD 7 (Report of Treatment ents of volunteers specified in para- Furnished Pay Patients, Hospitaliza- graph (a)(3) of this section are author- tion Furnished, part A) or DD 7A (Re- ized care to the same extent as their port of Treatment Furnished Pay Pa- sponsor. tients, Outpatient Treatment, part B) (4) Dental care. Limit dental care to when outpatient or inpatient care is emergencies. Render only that care es- rendered. sential to relieve pain or prevent imminent loss of teeth. All beneficiaries § 728.60 Job Corps and Volunteers in seeking dental care will be requested, Service to America (VISTA) bene- whenever possible, to furnish advanced ficiaries. authorization. (a) Beneficiaries. Job Corps and (c) Care authorized outside the United VISTA enrollees and Job Corps appli- States—(1) Physical examinations. Termi- cants may be provided services as set nation physical examinations may be forth. For former members, see § 728.53. provided volunteers and eligible de- (b) Authorization required—(1) Job pendents of volunteers. In most in- Corps enrollees. Presentation of a Job stances, Peace Corps staff physicians Corps Identification Card after ap- will provide these examinations; how- pointment has been made by the corps- ever, help may be required of naval member’s Job Corps center. MTFs for ancillary services. (2) Job Corps applicants. Presentation (2) Immunizations. When requested, of a letter from a screening agency immunizations may be provided all (e.g., State Employment Service) after beneficiaries listed in paragraph (a) of an appointment has been made by that this section. agency. (3) Medical care. When requested in writing by a representative or physi- (3) VISTA Volunteers and VISTA cian of a Peace Corps foreign service Trainees. A ‘‘Blue-Cross and Blue Shield post, volunteers, eligible dependents of Identification Card’’ is issued to such volunteers, and trainees of the Peace personnel as identification. Each card Corps may be provided necessary med- has a VISTA identification number ical care at Peace Corps expense. When which will be used on all records and emergency treatment is rendered with- correspondence. out prior approval, forward a request (c) Care authorized. Normally, med- to the Peace Corps foreign service post ical services are provided only when ci- as soon as possible. vilian of VA facilities are not avail- (4) Dental care. Limit dental care to able. or if available, are incapable of emergencies. Render only that care es- providing needed services. However, sential to relieve pain or prevent immi- upon presentation of an appropriate nent loss of teeth. All beneficiaries authorization, the following services seeking dental care will be requested, may be rendered subject to the provi- whenever possible, to furnish advanced sions of § 728.3. authorization. (1) Job Corps enrollees are authorized (5) Evacuation to the United States. emergency medical care upon presen- When a beneficiary in an overseas tation of their Job Corps Identification naval MTF requires prolonged hos- Card; however, the corpsmember’s Job pitalization, the commanding officer of Corps center should be notified imme- the overseas facility will report the re- diately. quirement to the nearest Peace Corps (2) Job Corps applicants may be pro- foreign service post and request au- vided preenrollment physical examina- thorization to return the patient to the tions and immunizations on an out- United States. Releases custody of de- patient basis only. pendents to their sponsor when evacu- (3) Job Corps enrollees, VISTA train- ation is declined. Aeromedical evacu- ees, and VISTA volunteers are author- ation may be used per OPNAVINST ized: 4630.25B. Travel of attendant(s) is au- (i) Outpatient medical examinations, thorized when the patient is too ill or outpatient treatment, and immuniza- too young to travel unattended. tions.

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(ii) Inpatient care for medical and the emergency is terminated and it is surgical conditions which, in the opin- permissible from a medical standpoint, ion of the attending physician, will discharge or transfer the patient to a benefit from definitive care within a facility that participates in Medicare. reasonable period of time. When found (2) Notification. Notify the nearest of- probable that a patient will require fice of the Social Security Administra- hospitalization in excess of 45 days, no- tion as soon as possible when a Medi- tify the Commander, Naval Medical care beneficiary is rendered treatment. Command (MEDCOM–33) by the most (d) Report. Complete and submit, per expeditious means. subpart J, a DD 7 (Report of Treatment (iii) Limit dental care to emer- Furnished Pay Patients, Hospitaliza- gencies. Render only that care essen- tion Furnished, part A) or DD 7A (Re- tial to relieve pain or prevent immi- port of Treatment Furnished Pay Pa- nent loss of teeth. Beneficiaries seek- tients, Outpatient Treatment, part B) ing dental care will be requested to fur- when outpatient or inpatient care is nish, whenever possible, advanced au- rendered. thorization. (d) Report. Complete and submit, per Subpart G—Other Persons subpart J, a DD 7 (Report of Treatment Furnished Pay Patients, Hospitaliza- § 728.71 Ex-service maternity care. tion Furnished, part A) or DD 7A (Re- (a) Eligible beneficiaries. After separa- port of Treatment Furnished Pay Pa- tion from the service under honorable tients, Outpatient Treatment, part B) conditions because of pregnancy, or when outpatient or inpatient care is separated from the service under hon- rendered. orable conditions and found to have been pregnant at the time of separa- § 728.61 Medicare beneficiaries. tion, the following former members (a) Care authorized. Emergency hos- and their newborn infant(s) may be pitalization and other emergency serv- provided care as set forth below. The ices are authorized for beneficiaries of rendering of this care is subject to the the Social Security Health Insurance provisions of § 728.3. When certified by Program for the Aged and Disabled medical authorities that the pregnancy (Medicare) who reside in the 50 United existed prior to entry into service States and the District of Columbia, (EPTE), maternity benefits are not au- Guam, Puerto Rico, the Virgin Islands, thorized. American Samoa, and the Northern (1) Former women members of the Mariana Islands. Such care in naval Army, Air Force, Navy, and Marine MTFs may be rendered when emer- Corps. gency services, as defined in § 728.61(b), (2) On or after 12 August 1985, former are necessary. women members of the Commissioned (b) Emergency services. Services pro- Corps of the United States Public vided in a hospital emergency room Health Service (USPHS) and the Na- after the sudden onset of a medical tional Oceanic and Atmospheric Ad- condition manifesting itself by acute ministration (NOAA). symptoms of sufficient severity (in- (b) Care authorized. (1) Former women cluding severe pain) such that the ab- members may be rendered medical and sence of immediate medical attention surgical care in naval MTFs incident to could reasonably be expected to result that pregnancy, prenatal care, hos- in: pitalization, postnatal care, and, when (1) Placing the patient’s health in se- requirements of SECNAVINST 6300.2A rious jeopardy. are met, abortions. Limit postnatal (2) Serious impairment to bodily care to 6 weeks following delivery. Do functions of serious dysfunction of any not promise civilian sources under any bodily organ or part. circumstances for either the mother or (c) General provisions—(1) Limitations. the infant as such care is not author- Benefit payments for emergency serv- ized. ices under Medicare can be made for (2) Treatment of the newborn infant only that period of time during which in USMTFs includes care, both inpa- the emergency exists. Therefore, when tient and outpatient, only during the

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first 6 weeks (42 days) following deliv- § 728.73 Applicants for enlistment or ery. If the newborn infant requires care reenlistment in the Armed Forces, beyond the 6-weeks postnatal period, and applicants for enlistment in the the mother or other responsible family reserve components. member must make arrangements for (a) Upon referral by a commander of disposition to private, State, welfare, a Military Enlistment Processing Sta- or another Federal facility. tion (MEPS), applicants will be fur- (c) Application for care. In making ap- nished necessary medical examina- plication for care authorized by this tions, including hospitalization when qualifications for service cannot other- section, former women members should wise be determined. Use the hos- apply either in person or in writing to pitalization period only for diagnostic the Armed Forces inpatient MTF near- purposes. Do not correct disqualifying est their home and present either their defects. DD 214 (Armed Forces of the United (b) Applicants who suffer injury or States Report of Transfer or Discharge) acute illness while awaiting or under- or DD 256A (Honorable Discharge Cer- going processing at Navy and Marine tificate) as proof of eligibility for re- Corps facilities or MEPS may be fur- quested care. In areas with more than nished emergency medical and dental one Armed Forces MTF available and care, including emergency hospitaliza- capable of providing required care, ap- tion, for that injury or illness. plication should be made to the MTF of the service from which separated, as § 728.74 Applicants for appointment in the regular Navy or Marine Corps applicable. Disengagement in such and reserve components, including areas to MTFs of other services may be members of the reserve components made only when space is not available who apply for active duty. or capability does not exist in the MTF (a) Necessary medical examinations of the services from which the indi- may be furnished, including hos- vidual was separated. pitalization when qualifications for (d) Charges and collection. Charges service cannot otherwise be deter- and reimbursement procedures for care mined. Use such a period of hospitaliza- rendered to beneficiaries in paragraph tion only for diagnostic purposes. Do (a)(2) of this section are the same as not correct disqualifying defects. prescribed by current regulations for (b) Applicants who suffer injury or active Coast Guard, USPHS, and NOAA acute illness while awaiting or under- members. going processing at Navy and Marine Corps facilities or MEPS may be fur- § 728.72 Applicants for enrollment in nished emergency medical and dental the Senior Reserve Officers’ Train- care, including emergency hospitaliza- ing Program. tion, for that injury or illness. When properly authorized, designated § 728.75 Applicants for cadetship at applicants (including applicants for en- service academies and applicants rollment in the 2-year program and for the Uniformed Services Univer- Military Science II enrollees applying sity of Health Sciences (USUHS). for Military Science III) may be fur- (a) Upon presentation of a letter of nished medical examinations at naval authorization from the Department of MTFs including hospitalization nec- Defense Medical Examination Review essary for the proper conduct thereof. Board (DODMERB), applicants for ca- Medical care, including hospitaliza- detship at Service Academies (Navy, tion, is authorized for diseases con- Army, Air Force, Coast Guard, and tracted or injuries incurred in line of Merchant Marine) and applicants for duty while at or traveling to or from a the Uniformed Services University of military installation for the purpose of Health Sciences (USUHS) will be fur- undergoing medical or other examina- nished medical examinations at facili- tions or for visits of observation. ties designated by the DODMERB. Hos- pitalization is authorized when qualifications for service cannot otherwise be determined. Use the hospitalization

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period for diagnostic purposes only, quests involving the following situa- and not to correct disqualifying or tions: other defects. Perform examinations (1) Preadoption proceedings wherein and make disposition of completed an active duty member or a retired forms per BUMEDINST 6120.3M. member has taken affirmative legal ac- (b) Applicants who suffer injury or tion to adopt a child. acute illness while awaiting or under- (2) Custodianships and guardianships going processing at Navy and Marine authorized by a court order wherein Corps facilities or at MEPS may be fur- the member is designated by the court nished emergency medical and dental as the custodian or guardian and the care, including emergency hospitaliza- child is fully dependent upon the active tion, for that injury or illness. duty or retired member sponsor. (3) Evaluation and selection of non- § 728.76 Naval Home residents. beneficiaries who are donor candidates for an organ or tissue transplant proce- Provide necessary medical and dental dure in behalf of a military service care, both inpatient and outpatient, to beneficiary. residents of the Naval Home when re- (4) Nonbeneficiary participants in of- quested by the Governor of the Home. ficially approved clinical research In an emergency, care may be rendered studies. without prior approval of the Gov- (5) Unremarried former spouses who: ernor; however, the Governor of the Require care for a condition incurred Home should be contacted immediately during or caused/aggravated by condi- and requested to furnish authorization. tions associated with the member’s or former member’s creditable service; do § 728.77 Secretarial designees. not qualify under the former spouses Subject to the capabilities of the pro- act; and do not have medical coverage fessional staff and the availability of under an employer-sponsored health space and facilities, naval MTFs and plan which will provide for the care re- DTFs will provide treatment to indi- quired. viduals that have been granted Secre- (6) Abused dependents of discharged tarial designee status by any of the or dismissed former uniformed services three service Secretaries (Navy, Army, members in need of medical or dental or Air Force), the Secretary of Com- care resulting from knowledge of the merce for NOAA personnel, the Sec- abuse or for an injury or illness result- retary of Health and Human Services ing from abuse by the former member. for USPHS personnel, or the Secretary Eligibility will terminate the earliest of Transportation for Coast Guard per- of 1 year after the date on which the sonnel. member is discharged or dismissed (a) Potential designees. Upon a show- from a uniformed service, or when care ing of sufficient cause, the Secretary of is no longer needed. the Navy may authorize individuals, (7) In other instances wherein the cir- not otherwise authorized by law, to re- cumstances clearly merit the providing ceive such care as is available in naval of treatment in naval MTFs, and in MTFs in the United States. Designa- which the best interest of the patient, tion may be extended on a worldwide the Navy, and the Government will be basis for preadoptive children and served, favorable Secretarial action wards of active duty members, and for may result. The mere need of medical abused dependents delineated in para- care by a former beneficiary or other graph (a)(6) of this section. Temporary person, alone, will not support ap- in loco parents or foster parent status proval of such a request. of the member with regard to a minor (b) Requests for consideration. Re- is insufficient for approval. Also, civil- quests for consideration will be sub- ian health care under the CHAMPUS mitted to the Commander, Naval Med- program cannot be authorized for other ical Command (MEDCOM–33) by appli- than abused dependents. The Sec- cants via their command, when appli- retary’s discretionary authority is ex- cable, or by the Medical Department ercised most conservatively, however, command concerned. Requests should favorable action is usually taken on re- include any pertinent information

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which will support resolution and a re- need of medical or dental care to treat turn address. Requests involving: adverse health conditions resulting (1) Preadoption must include a leg- from such dependent’s knowledge of ible reproducible copy of an interim the abuse or any injury or illness suf- court order or adoption agency place- fered by the abused person as a result ment agreement which names the spon- of such abuse. sor and identifies the other partici- (c) Blanket designation. (1) The Sec- pating parties. A petition for a court retary of Defense has granted Secre- order is insufficient to support a rec- tarial designee status to full-time ommendation for approval. Schedule ‘‘A’’ faculty members of the (2) Custodianships and guardianships Uniformed Services University of must include a legible reproducible Health Sciences (USUHS). They have copy of the court order, identification been provided documentation substan- of the parties, and also identify any tiating their eligibility and, where nec- amounts of income to which the ward essary, an eligibility termination date. is entitled. These personnel are authorized routine (3) Participants in clinical research care at the Naval Hospital, Bethesda, studies must include: MD. At other naval MTFs, only emer- (i) Sufficient clinical information gency treatment is authorized while concerning the nature of the study. they are traveling on official univer- (ii) Benefits which may accrue to the sity business. The letter of authoriza- individual. tion excludes routine dental care, pros- (iii) The extent, if any, to which ac- thetic appliances, and spectacles. cess by other authorized beneficiaries will be impaired. (2) The following officials within the (iv) Benefits which will accrue to the Government, the Department of De- command, e.g., enhancement of train- fense, and military departments have ing, maximum use of specialized facili- been granted blanket Secretarial des- ties, etc. ignation for medical and emergency (v) Recommended duration of des- dental care in naval MTFs in the ignation. United States: (vi) Whether the consenting indi- (i) The President. vidual has been informed concerning (ii) The Vice President. the nature of the study, its personal (iii) Members of the Cabinet. implications, and freely consents. (iv) Article III Federal Judges. (4) Unremarried former spouses must (v) U.S. Court of Military Appeals include: Judges. (i) A notarized copy of the marriage (vi) Members of Congress. license. (vii) The Secretary, Deputy Sec- (ii) A statement attesting to the fact retary, and the Assistant Secretaries of that the sponsoring former spouse Defense. achieved 20 or more years of creditable (viii) The Under Secretary of Defense military service. (iii) Copy of divorce decree with offi- for Policy. cial date. (ix) The Under Secretary of Defense (5) Abused depdendents must include: for Research and Engineering. (i) Full name, social security num- (x) The Secretaries, Under Secre- ber, grade or rate, branch or service, taries, and the Assistant Secretaries of and date and type of discharge or dis- the Military Departments. missal of the former member. Such a (d) Authorization. Designees will member must have received a dishon- present a signed letter bearing the let- orable or bad-conduct discharge or dis- terhead of the designating service. Sec- missal from a uniformed service as a retarial designees are not included in result of court-martial conviction for the DEERS data base and may not pos- an offense involving abuse of a depend- sess Government identification cards. ent of the member. Therefore, the only proof of their eligi- (ii) Full names, social security num- bility for treatment may be the letter bers (if assigned), and relationship to of authorization. When a Secretarial the former member of any dependent in designee presents for treatment:

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(1) Ask for identification of the indi- § 728.78 American Red Cross rep- vidual presenting the letter of author- resentatives and their dependents. ization to assure that the person seek- (a) Potential beneficiaries. ing care is the individual to whom the (1) Volunteer workers. letter was issued. (2) Full-time, paid employees. (2) Check the expiration date on the (3) Dependents of personnel enumer- letter of authorization. Many author- ated in paragraph (a) (1) and (2) of this izations are issued for only a specified section when accompanying their spon- period of time, e.g., abused depend- sor outside the continental United ents—no longer than 1 year. States, including Alaska, Hawaii, and (3) Check to assure that the indi- Puerto Rico. vidual is applying for care authorized (b) Care authorized. (1) When services by the letter of authorization. Designa- of the American Red Cross (ARC) have tion is often granted for a specific diag- been accepted in behalf of the Federal nosis or specific mode of treatment. Government under applicable DOD reg- (4) Check to assure that the indi- ulations, beneficiaries in paragraph vidual has not been designated for care (a)(1) of this section are considered only as specific facility. Many author- ‘‘employees’’ of the Government for the izations are granted for conditions or purpose of this part and are authorized for care that can be rendered only by a health care in USMTFs, both in and specified physician or under a specific outside the United States for work-re- program. lated conditions. See § 728.53(a)(2) re- (5) Place a copy of the letter of au- garding the specific application of this thorization in the individual’s Health authorization. Record or outpatient treatment record (2) Beneficiaries enumerated in para- on the left side at the first visit or ad- graph (a) (1) and (2) of this section are authorized health care in USMTFs lo- mission. cated outside the United States for (e) Charges and collection. (1) Inter- both work and nonwork-related condi- agency rates are applicable for inpa- tions. See § 728.53(a)(2) for treatment of tient and outpatient care provided out- work-related conditions of those in side the National Capital Region to all paragraph (a)(1) of this section. individuals listed in paragraph (c)(2) of (3) Beneficiaries identified in para- this section with the exception of graph (a) (1), (2), and (3) of this section Members of Congress. Charges are at are authorized emergency care in full reimbursement rates for Members USMTFs outside the continental of Congress provided inpatient or out- United States, including Alaska, Ha- patient care outside the National Cap- waii, and Puerto Rico where facilities ital Region. are not otherwise available in reason- (2) In the National Capital Region: ably accessible and appropriate non- (i) Charges are waived for outpatient Federal hospitals. Provide hospitaliza- care provided to all categories listed in tion only for acute medical and sur- paragraph (c)(2) of this section. gical conditions, exclusive of nervous, (ii) Charge interagency rates for in- mental, or contagious diseases or those patient care of all individual in para- requiring domiciliary care. Routine graph (c)(2) of this section except Mem- dental care, other than dental pros- bers of Congress. Charge Members of thesis and orthodontia, is authorized 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

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Red Cross, 20th and D Street NW., reasonably accessible and appropriate Washington, DC 20006. non-Federal facilities. (d) Charges and collection. Charge (c) Charges and collection. Care is au- beneficiaries in paragraph (a) (1) and thorized on a reimbursable basis. Com- (2) of this section the rate applicable to plete and submit, per subpart J, a DD 7 officer personnel and dependents in (Report of Treatment Furnished Pay paragraph (a)(3) of this section the de- Patients, Hospitalization Furnished, pendent rate. Complete and submit, per part A) or DD 7A (Report of Treatment subpart J, a DD 7 (Report of Treatment Furnished Pay Patients, Outpatient Furnished Pay Patients, Hospitaliza- Treatment, part B) when outpatient or tion Furnished, part A) or DD 7A (Re- inpatient care is rendered. port of Treatment Furnished Pay Pa- tients, Outpatient Treatment, part B) § 728.80 U.S. Government employees. when outpatient or inpatient care is (a) Civil service employees of all Fed- rendered to ARC personnel or to their eral agencies, including teachers em- dependents. ployed by Department of Defense De- § 728.79 Employees of Federal contrac- pendent’s Schools (DODDS) and their tors and subcontractors. dependents, may be provided hospitalization and necessary outpatient (a) (1) U.S. citizen con- Beneficiaries. services, (other than occupational tractor, engineering, and technical health services), on a reimbursable service personnel designated as U.S. basis, outside the continental limits of Navy Technicians. the United States and in Alaska, where (2) Civilian employees of contractors facilities are not otherwise available in and subcontractors operating under reasonably accessible and appropriate U.S. Government contracts. non-Federal hospitals. Except for em- (3) Dependents of personnel enumer- ployees who are serving aboard naval ated in paragraph (a) (1) and (2) of this vessels, hospitalization may be fur- section when accompanying their spon- nished only for acute medical and sur- sor outside the continental United gical conditions, exclusive of nervous, States or in Alaska. mental, or contagious diseases or those (b) (1) Beneficiaries Care authorized. requiring domiciliary care. Routine identified in paragraph (a) (1) and (2) of dental care, other than dental pros- this section may be provided emer- thesis and orthodontia, is authorized gency care in naval MTFs for illnesses on a space available basis provided fa- and injuries occurring at work in or cilities are not otherwise available in outside the United States. reasonably accessible and appropriate (2) While serving outside the conti- non-Federal facilities. nental United States or in Alaska, (b) Such civilian employees and their where facilities are not otherwise dependents may be provided medical, available in reasonably accessible and surgical, dental treatment, hospitaliza- appropriate non-Federal facilities, tion, and optometric care at installa- beneficiaries identified in paragraph (a) (1), (2), and (3) of this section may re- tions in the United States which have ceive hospitalization and necessary been designated remote by the Sec- outpatient services in naval MTFs on a retary of the Navy for the purpose of reimbursable basis. Except for bene- providing medical care. ficiaries in paragraph (a)(1) of this sec- (c) The major objective of the fol- tion who are serving aboard naval ves- lowing programs for civil service em- sels, all others enumerated may only ployees, regardless of location, is emer- be hospitalized for acute medical and gency treatment for relief of minor ail- surgical conditions, exclusive of nerv- ments or injuries to keep the employee ous, mental, or contagious diseases or on the job: those requiring domiciliary care. Rou- (1) The Department of Labor, Office tine dental care, other than dental of Workers’ Compensation Programs prosthesis and orthodontia, is author- (OWCP), governs the overall medical ized on a space available basis provided care program for employees of the Gov- facilities are not otherwise available in ernment who sustain injuries while in

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the performance of duty, including dis- the following personnel are authorized eases proximately caused by conditions care as set forth. of employment (see § 728.53). (b) Beneficiaries and extent of care. (1) (2) Federal civil service employees Provide all occupational health serv- and applicants for such employment ices to civilian employees paid from are authorized services as outlined in nonappropriated funds, including Navy chapter 22, section XIII, of the Manual exchange employees and service club of the Medical Department employees, free of charge (see (MANMED). When appropriated fund § 728.80(c)(2)). Provide treatment of oc- and nonappropriated fund employees, cupational illnesses and injuries other including unpaid volunteer employees, than in emergencies per rules and regu- require emergency and nonemergency lations of the Office of Workers’ Com- occupational health services due to an pensation Programs (see § 728.53). illness or an injury on the job, provide (2) Civilians attending the Federal this limited care through your occupa- Bureau of Investigation (FBI) Acad- tional health service, emergency room, emy, Marine Corps Development and or evening primary care clinic, as ap- Education Command, Quantico, VA, propriate. This care is rendered free of may be rendered care at the Naval charge to the employee, the employee’s Medical Clinic, Quantico, VA, for emer- command, or insurance carrier. In- gencies. Such persons who are in need cluded with this group are Military of hospitalization for injuries or dis- Sealift Command (MSC) civilian ma- ease may be hospitalized and classed as rine personnel (authorized additional civilian humanitarian nonindigents care and services as outlined in with the approval of the cognizant hos- BUMINST 6320.52 and care under pital’s commanding officer. EXCEPTION: § 728.53(a)(7)) and members of the Na- Certain individuals, such as employees tional Oceanic and Atmospheric Ad- of the Federal Bureau of Investigation ministration (NOAA) serving with the who are injured in the line of duty, Navy. may be entitled to care at the expense of the Office of Workers’ Compensation (3) Under the technical control of the Programs (OWCP) (see § 728.53). Surgeon General of the Army, the DOD (3) The following civilians who are in- Civilian Employees’ Health Service is jured or become ill while participating responsible for administering the in Navy or Marine Corps sponsored health program for all Federal civil sports, recreational or training activi- service employees in the District of Co- ties may be rendered care on a tem- lumbia area. porary (emergency) basis until such (d) Care, other than occupational time as disposition can be effected to health services, is provided on a reim- another source of care. bursable basis. Complete and submit, (i) Members of the Naval Sea Cadet per subpart J, a DD 7 (Report of Treat- Corps. ment Furnished Pay Patients, Hos- (ii) Junior ROTC/NDCC (National De- pitalization Furnished, part A) or DD fense Cadet Corps) cadets. 7A (Report of Treatment Furnished (iii) Civilian athletes training or Pay Patients, Outpatient Treatment, competing as part of the U.S. Olympic part B) when outpatient or inpatient effort. care is rendered. (iv) Civilians competing in Navy or Marine Corps sponsored competitive § 728.81 Other civilians. meets. (a) General. In an emergency, any (v) Members of Little League teams person may be rendered care in naval and Youth Conservation groups. MTFs to prevent undue suffering or (vi) Boy Scouts and Girl Scouts of loss of life or limb. Limit care to that America. necessary only during the period of the (4) Other civilian personnel included emergency, and if further treatment is below are not normally eligible for indicated, initiate action to transfer care in naval MTFs; however, under the patient to a private physician or ci- the conditions set forth, care may be vilian facility as soon as possible. Fur- rendered. ther, subject to the provisions of §728.3, (i) Potential beneficiaries.

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(A) Civilian representatives of reli- United Nations) or by a voluntary non- gious groups. profit-relief agency registered with and (B) Educational institutions rep- approved by the Advisory Committee resentatives. on Voluntary Aid (e.g., CARE), they (C) Athletic clinic instructors. may receive other necessary non- (D) USO representatives. emergency medical care and occupa- (E) Celebrities and entertainers. tional health services while serving (F) Social agencies representatives. outside the 48 contiguous United (G) Others in a similar status to States and the District of Columbia. those in § 728.81(b)(4)(i) (A) through (F). (c) Charges and collection. Care is pro- (H) News correspondents. vided on a reimbursable basis. Com- (I) Commercial airline pilots and em- plete and submit, per subpart J, a DD 7 ployees. (Report of Treatment Furnished Pay (J) Volunteer workers. This category Patients, Hospitalization Furnished, includes officially recognized welfare part A) or DD 7A (Report of Treatment workers, other than Red Cross. Furnished Pay Patients, Outpatient (ii) Care authorized. (A) Persons enu- Treatment, part B) when outpatient or merated in paragraph (b)(4)(i) (A) inpatient care is rendered. through (G) of this section, who are contracted to provide direct services to § 728.82 Individuals whose military the Armed Forces and who are acting records are being considered for under orders issued by the Department correction. of Defense or one of the military de- Individuals who require medical eval- partments to visit military commands uation in connection with consider- overseas, and their accompanying de- ation of their individual circumstances pendents, may be provided medical by the Navy, Army, and Air Force care in naval MTFs outside the 48 con- Board for Correction of Military tiguous United States and the District Records are authorized evaluation, in- of Columbia provided local civilian fa- cluding hospitalization when necessary cilities are not reasonably available or for the proper conduct thereof. are inadequate. Limit inpatient care to acute medical and surgical conditions § 728.83 Persons in military custody exclusive of nervous, mental, or con- and nonmilitary Federal prisoners. tagious diseases, or those requiring (a) Potential beneficiaries. domiciliary care. Routine dental care, (1) Military prisoners. other than dental prostheses and or- (2) Nonmilitary Federal prisoners. thodontia, is authorized on a space (3) Enemy prisoners of war and other available basis outside the United detained personnel. States, provided such care is not other- (b) Care authorized—(1) Military pris- wise available in reasonably accessible oners. (i) Whose punitive discharges and appropriate non-Federal facilities. have been executed but whose sen- (B) Persons enumerated in paragraph tences have not expired are authorized (b)(4)(i) (H) and (I) of this section are all necessary medical and dental care. authorized emergency medical and den- (ii) Whose punitive discharges have tal care in naval MTFs outside the 48 been executed and who require hos- contiguous United States and the Dis- pitalization beyond expiration of sen- trict of Columbia provided local civil- tences are not eligible for care but may ian facilities are not reasonably avail- be hospitalized as civilian humani- able or are inadequate. tarian nonindigents until final disposi- (C) Persons enumerated in paragraph tion can be made to some other appro- (b)(4)(i)(J) of this section, both within priate facility. and outside the 48 contiguous United (iii) On parole pending completion of States and the District of Columbia, appellate review or whose parole may receive care in naval MTFs for in- changes to an excess leave status fol- juries or diseases incurred in the per- lowing completion of sentence to 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.

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(iv) On parole whose punitive dis- either from civilian sources as supple- charge has been executed are not mem- mental care or from stocks maintained bers of the military service and are by the facility, are payable from oper- therefore not entitled to care at Gov- ation and maintenance funds available ernment expense. If the circumstances for support of naval MTFs. However, are exceptional, individuals herein who certain adjuncts may be cost-shared are not authorized care may request under CHAMPUS for CHAMPUS-eligi- Secretarial designee status under the ble individuals under circumstances provisions of § 728.77. enumerated in the cooperative care or (2) Nonmilitary Federal prisoners. services criteria of § 728.4(z). Under the provisions of this section, nonmilitary Federal prisoners are au- § 728.92 Policy. thorized only emergency medical care. When such care is being rendered, the (a) Provide adjuncts to medical care institution to which prisoners are sen- to eligible beneficiaries receiving inpa- tenced must furnish necessary guards tient or outpatient care when, in the to effectively maintain custody of pris- opinion of the attending physician, oners and assure the safety of other pa- such adjuncts will offer substantial as- tients, staff members, and residents of sistance in overcoming the handicap or the local area. Under no circumstances condition and thereby contribute to will military personnel be voluntarily the well-being of the beneficiary. used to guard or control such pris- (b) Unless necessary for humani- oners. Upon completion of emergency tarian reasons, do not furnish ortho- care, make arrangements for imme- pedic and prosthetic appliances on an diate transfer of the prisoners to a non- elective basis to members of the naval military MTF or for return to the facil- service with short periods of service re- ity to which sentenced. maining when the defect requiring the (3) Enemy prisoners of war and other appliance existed prior to entry into detained personnel. Subject to the provi- service and when such members will be sions of § 728.3, enemy prisoners of war separated from the service because of and other detained personnel are enti- these defects. tled to and may be rendered all nec- (c) For active duty members, make essary medical and dental care. the initial allowance of orthopedic (c) Charges and collection. Care provided individuals enumerated in footwear and orthopedic alterations to § 728.83(b)(1) (ii), (iv), and (2) is on a re- standard footwear the same quantity imbursable basis. Complete and sub- as provided in the initial clothing al- mit, per subpart J, a DD 7 (Report of lowance. Treatment Furnished Pay Patients, (d) Base the number of orthopedic Hospitalization Furnished, part A) or and prosthetic appliances issued or re- DD 7A (Report of Treatment Furnished placed for other authorized recipients Pay Patients, Outpatient Treatment, upon the individual’s requirements as part B) when outpatient or inpatient determined by the attending physician care is rendered. to be consistent with the highest standards of modern medicine. Subpart H—Adjuncts to Medical (e) Former members of the uniformed Care service should be advised that they may obtain durable medical equip- § 728.91 General. ment, medical care, and adjuncts from Adjuncts to medical care include but Veterans Administration facilities. are not limited to prosthetic devices (f) Dependents are authorized certain such as artificial limbs, artificial eyes, adjuncts per §§ 728.31 (c) and (d) and in hearing aids, orthopedic footwear, instances where items are not nor- spectacles, wheel chairs, hospital beds, mally authorized at the expense of the and similar medical support items or Government, they may be provided at aids which are required for the proper cost to the United States if available care and management of the condition from Government stocks under the fol- being treated. Generally, expenses in- lowing conditions: curred for procurement of such items, (1) Outside the United States.

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(2) At specific stations within the § 728.93 Chart of adjuncts. United States which have been author- The following chart and footnotes ized by the Secretary of the Navy to provide information relative to ad- sell these items. juncts which may be furnished the several categories of beneficiaries eligible for medical care at naval MTFs.

Others authorized the Active duty and re- same benefits as active Dependents author- Other bene- Adjuncts ized the same bene- 8 tired members duty or retired mem- fits ficiaries( ) bers(8)

Ambulance service ...... Yes ...... Yes ...... Yes(1) ...... No Artificial eyes ...... Yes ...... Yes ...... Yes ...... Maybe(3) Artificial limbs ...... Yes ...... Yes ...... Yes ...... Maybe(3) Contact or special lenses(11) ..... Yes(4) ...... Yes(4) ...... Maybe(2)(4)(6) ...... No Crutches(7) ...... Yes ...... Yes ...... Yes ...... Yes Dental prostheses ...... Yes ...... Yes ...... Maybe(9) ...... Maybe(9) Elastic stockings ...... Yes ...... Yes ...... Yes ...... Yes Hearing aids(10) ...... Yes(5) ...... Yes(5) ...... Maybe(2) ...... Maybe(3) Hearing aid parts and batteries Yes(10) ...... Yes(10) ...... Maybe(2)(10) ...... No Hospital beds (7) ...... Yes ...... Yes ...... Yes ...... Yes Joint braces ...... Yes ...... Yes ...... Yes ...... Yes Orthopedic footware ...... Yes ...... Yes ...... Maybe(2) ...... Maybe(3) Prosthetic devices, other(7) ...... Yes ...... Yes ...... Maybe(2) ...... No Respirators and inhalators(7) ..... Yes ...... Yes ...... Yes ...... Yes(1) Resuscitators (7) ...... Yes ...... Yes ...... Yes ...... Yes(1) Spectacles ...... Yes ...... Yes ...... Maybe(2)(6) ...... No Walking irons(7) ...... Yes ...... Yes ...... Yes ...... Yes Wheel chairs(7) ...... Yes ...... Yes ...... Yes ...... Yes 1 When considered medically appropriate by the attending physician. 2 See § 728.92(f). 3 Outside the United States and at designated remote stations when considered medically appropriate by the attending 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 from SECNAVINST 1770.3, paragraph Treatment, Return to Limited 10, is applicable when a reservist may Duty, Separation, or Retire- be entitled to physical disability bene- ment for Physical Disability fits. (1) When a notice of eligibility (NOE) § 728.101 General. has been issued to a member hospitalized in a naval MTF and the attending (a) While Notice of eligibility (NOE). physician is of the opinion that recov- the NOE is basically a document that ery is not anticipated or that the re- substantiates entitlement to a dis- servist is not expected to be fit for re- ability benefit equal to pay and allow- turn to full duty within a reasonable ances, it may be accepted when re- period, a medical board will be con- quired to substantiate eligibility for benefits other than pay and allow- vened and the case managed the same ances, i.e., treatment in USMTFs under as that of a Regular member. Assure the provisions of title 10, United States that a copy of the NOE accompanies Code. the medical board report forwarded to (b) Physical disability benefits. The fol- the Central Physical Evaluation Board. lowing, excerpted and paraphrased

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Disability benefits, equal to pay and al- furnished by naval health care facili- lowances, will continue in such in- ties for which central collection from stances until final disposition. other Government agencies and private (2) There is no limited duty status, parties is required. per se, for inactive reservists. However, if the attending physician determines § 728.112 Responsibilities. that a reservist is temporarily unfit for (a) Patient administration departments. full duty, but will be fit for full duty The initiation of the collection process following a period of convalescence or begins with patient administration de- following duty with physical limita- partments. Collection action cannot be tions, not to exceed 6 months, the phy- accomplished unless patient adminis- sician may return the reservist to duty tration departments take the initial with a summary of the hospitalization step to complete: or treatment. The summary will set (1) DD 7, Report of Treatment Fur- forth the limitations posed by the nished Pay Patients, Hospitalization Fur- member’s disability and the period of nished (part A). Prepare a separate sub- such limitations. Followup hospitaliza- stantiating DD 7, in triplicate, for each tion, treatment, and evaluation for the category of pay patient receiving inpa- same condition may be provided at tient care. At the end of each day that USMTFs during the period of restricted any pay patient is admitted, submit duty, if required. If, during the period DD 7’s to the collection agent. of the restricted duty, it appears that (2) DD 7A, Report of Treatment Fur- the reservist will be permanently unfit nished Pay Patients, Outpatient Treat- for full duty, promptly authorize the ment Furnished (part B). Prepare a sepa- reservist to report for evaluation, rate substantiating DD 7A, in trip- treatment if required, and appearance licate, for each category of pay patient before a medical board at the nearest receiving outpatient care. At the end of naval MTF capable of accomplishing each day that any pay patient is treat- same. Admission to the sicklist is au- ed on an outpatient basis, submit DD thorized, when required. Should the 7A’s to the collection agent. medical board recommend appearance (b) Collection agents. Upon receipt of a before a physical evaluation board, dis- completed DD 7 or DD 7A, collection ability benefits equal to pay and allow- agents will take the action indicated in ances should continue until final dis- paragraph 24304 of the Resource Man- position is effected. agement Handbook, NAVMED P–5020, to effect central collection action. § 728.102 Care from other than Federal sources. § 728.113 Categories of pay patients. The provisions of this subpart do not The categories of patients for whom authorize care for reservists at other collection action must be initiated are: than Federal facilities nor out of funds (a) Coast Guard. (1) Active Officers; available for operation of USMTFs (2) Retired Officers; (3) Active Enlisted; (supplemental care) after a period of (4) Retired Enlisted; (5) Dependents; (6) active duty or a period of training duty Cadets. ends, including travel to and from such (b) Public Health Service. (1) Active Of- training. Such care may be rendered ficers; (2) Retired Officers; (3) Depend- under the provisions of part 732 of this ents of Officers. chapter. (c) National Oceanic and Atmospheric Administration (NOAA). (1) Active Offi- Subpart J—Initiating Collection cers; (2) Retired Officers; (3) Depend- Action on Pay Patients ents of Officers. (d) Foreign. (1) NATO Officers (Except § 728.111 General. Canadians provided care under the The Comptroller of the Navy has ap- comparable care agreement.); (2) NATO proved a system of transactions that Enlisted (Except Canadians provided generates reports to COMNAV care under the comparable care agree- MEDCOM on unfunded reimbursable ment.); (3) NATO Dependents; (4) Civil- transactions. The purpose of the final ians Accompanying NATO Members; (5) report is to provide data on services Foreign Military Sales (FMS) Officers;

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(6) FMS Enlisted; (7) FMS Dependents; 732.24 Appeal procedures. (8) FMS Civilians; (9) Military Grant Aid Officers; (10) Military Grant Aid Subpart C—Accounting Classifications for Enlisted; (11) Military Grant Aid De- Nonnaval Medical and Dental Care pendents; (12) Military Grant Aid Civil- Expenses and Standard Document ians; (13) Military Officers From Other Numbers Than NATO Nations; (14) Military En- 732.25 Accounting classifications for listed From Other Than NATO Nations; nonnaval medical and dental care ex- (15) Dependents of Officers and Enlisted penses. From Other Than NATO Nations; (16) 732.26 Standard document numbers. Civilians Accompanying Military Mem- bers of Other Than NATO Nations; (17) AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 1071–1088, Nationals and Their Dependents. 5031, 6148, 6201–6203, and 8140; and 32 CFR 700.1202. (e) Secretarial designees not exempted from paying. SOURCE: 52 FR 32297, Aug. 27, 1987, unless (f) Others. (1) Merchant Marines; (2) otherwise noted. Military Sealift Command (MSC) Per- sonnel; (3) Public Health Service bene- Subpart A—General ficiaries (Other than Commissioned Corps); (4) Veterans Administration § 732.1 Background. beneficiaries; (5) Peace Corps bene- When a U.S. Navy or Marine Corps ficiaries; (6) Job Corps beneficiaries; (7) member or a Canadian Navy or Marine Volunteers In Service to America Corps member receives authorized care (VISTA) beneficiaries; (8) Office of from other than a Navy treatment fa- Workers Compensation Program cility, care is under the cognizance of (OWCP) beneficiaries; (9) Bureau of the uniformed service medical treat- Employees Compensation (BEC) bene- ment facility (USMTF) providing care, ficiaries; (10) Department of State and the USMTF referring the member to Other Federal Agencies beneficiaries another treatment source, or under the (prepare a separate form for each Fed- provisions of this part. If such a mem- eral agency); (11) Civilian Humani- ber is not receiving care at or under tarian Nonindigents (CHNI); (12) Trust the auspices of a Federal source, re- Territory beneficiaries; (13) Others not sponsibility for health and welfare, and specified above who are not entitled to the adjudication of claims in connec- health benefits at the expense of the tion with their care, remains within Government. the Navy Medical Department. Part 728 of this chapter and NAVMEDCOMINST PART 732—NONNAVAL MEDICAL 6320.18 contain guidelines concerning AND DENTAL CARE care for other eligible beneficiaries, not authorized care by this part. Subpart A—General § 732.2 Action. Sec. 732.1 Background. Ensure that personnel under your 732.2 Action. cognizance are made aware of the contents of this part. Failure to comply Subpart B—Medical and Dental Care from with contents may result in delayed Nonnaval Sources adjudication and payment or may re- 732.11 Definitions. sult in denial of Navy financial respon- 732.12 Eligibility. sibility for expenses of maternity, med- 732.13 Sources of care. ical, or dental care obtained. 732.14 Authorized care. 732.15 Unauthorized care. 732.16 Emergency care requirements. Subpart B—Medical and Dental 732.17 Nonemergency care requirements. Care From Nonnaval Sources 732.18 Notification of illness or injury. 732.19 Claims. § 732.11 Definitions. 732.20 Adjudication authorities. 732.21 Medical board. Unless otherwise qualified in this 732.22 Recovery of medical care payments. part the following terms when used 732.23 Collection for subsistence. throughout are defined as follows:

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(a) Active duty. Full-time duty in the fense does not allow release to military active military service of the United control, constructive return is not ac- States. Includes full-time training complished. The individual is respon- duty; annual training duty; and attend- sible for medical and dental care re- ance, while in the active military serv- ceived prior to arrest and the incarcer- ice, at a school designated as a service ating jurisdiction is responsible for school by law or by the Secretary of care required after arrest. the military department concerned. (d) Designated Uniformed Services (b) Active duty for training. A specified Treatment Facilities (Designated USTFs). tour of active duty for Reserves for Under Pub. L. 97–99, the following fa- training under orders that provides for cilities are ‘‘designated USTFs’’ for the automatic reversion to non-active duty purpose of rendering medical and den- status when the specified period of ac- tal care to all categories of individuals tive duty is completed. It includes an- entitled to care under this part. nual training, special tours, and the (1) Sisters of Charity of the Incarnate initial tour performed by enlistees Word Health Care System, 6400 without prior military service. The pe- Lawndale, Houston, TX 77058 (713) 928– riod of duty includes travel to and from 2931 operates the following facilities: training duty, not in excess of the al- (i) St. John Hospital, 2050 Space Park lowable constructive travel time pre- Drive, Nassau Bay, TX 77058, telephone scribed by SECNAVINST 1770.3 and (713) 333–5503. Inpatient and outpatient paragraphs 10242 and 10243 of DOD Mili- services. tary Pay and Allowances Entitlements (ii) St. Mary’s Hospital Outpatient Manual. Clinic, 404 St Mary’s Boulevard, Gal- (c) Constructive return. For purposes veston, TX 77550, telephone (409) 763– of medical and dental care, an 5301. Outpatient services only. unathorized absentee’s return to mili- (iii) St. Joseph Hospital Ambulatory tary control may be accomplished Care Center, 1919 La Branch, Houston, through notification of appropriate TX 77002, telephone (713) 757–1000. Out- military authorities as outlined below. patient services only. (1) For members in an unauthorized (iv) St Mary’s Hospital Ambulatory absentee (UA) status, constructive re- Care Center, 3600 Gates Boulevard, turn to military control for the pur- Port Arthur, TX 77640 (409) 985–7431. pose of providing medical or dental Outpatient services only. care at Navy expense is effected when (2) Inpatient and outpatient services. (i) one of the following has occurred: Wyman Park Health System, Inc., 3100 (i) A naval activity informs a civilian Wyman Park Drive, Baltimore, MD provider of medical or dental care that 21211, telephone (301) 338–3693. the Navy accepts responsibility for a naval member’s care. The naval activ- (ii) Alston-Brighton Aid and Health ity providing this information must Group, Inc., Brighton Marine Public also provide documentation of such no- Health Center, 77 Warren Street, Bos- tification to the appropriate adjudica- ton, MA 02135, telephone (617) 782–3400. tion authority in § 732.20. (iii) Bayley Seton Hospital, Bay (ii) A member has been apprehended Street and Vanderbilt Avenue, Staten by civil authorities at the specific re- Island, NY 10304, telephone (718) 390– quest of naval authorities and naval 5547 or 6007. authorities have been notified that the (iv) Pacific Medical Center, 1200 12th member can be released to military Avenue South, Seattle, WA 98144, tele- custody. phone (206) 326–4100. (iii) A naval member has been ar- (3) Outpatient services only. (i) Coastal rested, while in a UA status, by civil Health Service, 331 Veranda Street, authorities for a civil offense and a Portland, ME 04103 (207) 774–5805. naval authority has been notified that (ii) Lutheran Medical Center, Down- the member can be released to military town Health Care Services, 1313 Supe- control. rior Avenue, Cleveland, OH 44113, tele- (2) When a naval member has been ar- phone (216) 363–2065. rested by civil authorities for a civil (e) Duty status. The situation of the offense while in a UA status and the of- claimant when maternity, medical, or

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dental care is received. Members, in- ignated offices, under program man- cluding reservists, on leave or liberty agement control of COMNAVMEDCOM are considered in a duty status. Reserv- and direct control of regional medical ists, performing active duty for train- commands, responsible for administra- ing or inactive duty training, are also tive requirements delineated in this considered in a duty status during part. Responsibilities and functional their allowable constructive travel tasks of OMAs and ODAs are outlined time to and from training. in NAVMEDCOMINST 6010.3. (f) Emergency care. Medical treatment (n) Prior approval. Permission granted of severe life threatening or poten- for a specific episode of necessary but tially disabling conditions which result nonemergent maternity, medical, or from accident or illness of sudden onset dental care. and necessitates immediate interven- (o) Reservist. A member of the Naval tion to prevent undue pain and suf- or Marine Corps Reserve. fering or loss of life, limb, or eyesight (p) Supplemental care—(1) Operation and dental treatment of painful or and maintenance funds, Navy. Supple- acute conditions. mental care of all uniformed services (g) Federal facilities. Navy, Army, Air members, at Navy expense, encom- Force, Coast Guard, Veterans Adminis- passes only inpatient or outpatient tration, and USTFs (former U.S. Public care augmenting the capability of a Health Service facilities listed in naval MTF treating a member. Such § 732.11(d). care is usually obtained from civilian (h) Inactive duty training. Duty pre- sources through referral by the treat- scribed for Reserves by the Secretary ing naval MTF. If a member, author- of the Navy under Section 206 of Title ized care under this part, is admitted 37, United States Code, or any other to or is being treated on an outpatient provision of law. Also includes special basis at any USMTF, all supplemental additional duties authorized for Re- care is the financial responsibility of serves by an authority designated by that facility regardless of whether the the Secretary of the Navy and per- facility is organized or authorized to formed by Reserves on a voluntary provide needed health care. The cost of basis in connection with the prescribed such care is chargeable to operation training or maintenance activities of and maintenance funds (OM&N) avail- units to which they are assigned. able for operation of the USMTF re- (i) Maternity emergency. A condition questing the care regardless of service commencing or exacerbating during affiliation of the member (see part 728 pregnancy when delay caused by refer- of this chapter for such care under ral to a uniformed services medical Navy Medical Department facilities). treatment facility (USMTF) or des- (2) Nonnaval medical and dental care ignated USTF would jeopardize the program funds. Adjudication authorities welfare of the mother or unborn child. will pay claims, under this part, for (j) Member. United States Navy and care received as a result of a referral Marine Corps personnel, Department of when: National Defence of Canada Navy and (i) A United States Navy or Marine Marine Corps personnel, and Navy and Corps member or a Canadian Navy or Marine Corps personnel of other NATO Marine Corps member requires care be- Nations meeting the requirements for yond the capability of the referring care under this part. USMTF and care is obtained for such a (k) Non-federal care. Maternity, med- member not admitted to or not being ical, or dental care furnished by civil- treated on an outpatient basis by a ian sources (includes State, local, and USMTF, and foreign MTFs). (ii) The referring USMTF is not orga- (l) Nonnaval care. Maternity, medical, nized nor authorized to provide the or dental care provided by other than needed health care. Navy MTFs. Includes care in other (3) Other uniformed services supple- USMTFs, designated USTFs, VA facili- mental care programs. In addition to ties, as well as from civilian sources. services that augment other USMTF’s (m) Office of Medical Affairs (OMA) or capabilities, supplemental care pro- Office of Dental Affairs (ODA). Des- grams of the other uniformed services

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include care and services comparable patient care under the provisions of to those authorized by this part, e.g., this part to members of the Depart- emergency care and pre-approved non- ment of National Defence of Canada re- emergency care. ceiving care in the United States. (q) Unauthorized absence. Absence or (d) Absent without authority. Naval departure without authority from a members absent without authority member’s command or assigned place during an entire episode of treatment of duty. are not eligible for non-Federal med- (r) Uniformed Services Medical Treat- ical, dental, or emergency maternity ment Facilities (USMTF). Health care fa- care at Government expense. The only cilities of the Navy, Army, Air Force, exception occurs when a member’s ill- Coast Guard, and the former U.S. Pub- ness or injury is determined to have lic Health Service facilities listed in been the direct cause of the unauthor- paragraph (d) of this section designated ized absentee status. In such an in- as USTFs per DOD and Department of Health and Human Services directives. stance, eligibility will be: (1) Determined to have existed from § 732.12 Eligibility. the day and hour of such injury or ill- (a) Regular members. To be eligible for ness provided the member was not in non-Federal medical, dental, or emer- an unauthorized absentee status prior gency maternity care at Government to the onset of the illness or injury and expense, Regular active duty United initiation of treatment. States naval members and Canadian (2) Retained when the member is re- Navy and Marine Corps members must turned directly to military control. be in a duty status when care is pro- (3) Terminated should the member vided. return to an unauthorized absentee (b) Reservists. (1) Reservists on active status immediately after completion of duty for training and inactive duty treatment. Departmental level training, including leave and liberty (MEDCOM–333 for medical and therefrom, are considered to be in a MEDCOM–06 for dental) review is re- duty status while participating in quired before benefits may be extended. training. Accordingly, they are enti- (e) Constructive return. When con- tled to care for illnesses and injuries structive return, defined in § 732.11(c), occurring while in that status. is effected, entitlement will be deter- (2) Reservists are entitled to care for mined to have existed from 0001 hours injuries and illnesses occurring during of the day of constructive return, not direct travel enroute to and from ac- necessarily the day and hour care was tive duty training (ACDUTRA) and to initiated. and from inactive duty training. (c) NATO naval members. Naval mem- § 732.13 Sources of care. bers of the NATO Status of Forces Agreement (SOFA) nations of Belgium, (a) Initial application. If a member re- Denmark, Federal Republic of Ger- quires maternity, medical, or dental many, France, Greece, Iceland, Italy, care and naval facilities are unavail- Luxembourg, the Netherlands, Norway, able, make initial application to other Portugal, Spain, Turkey, and the available Federal medical or dental fa- United Kingdom, are authorized out- cilities or USTFs. When members are patient care only under the provisions of stationed in or passing through a this part when stationed in or passing NATO SOFA nation and U.S. facilities through the United States in connec- are unavailable, ensure that members tion with official duties. Public Law make initial application for emergency 99–591 prohibits inpatient care of these and nonemergency care to military fa- foreign military members in the cilities of the host country, or if appli- United States at the expense of the cable, to civilian sources under the United States Government. The other NATO SOFA nation’s health care pro- NATO SOFA Nation, Canada, entered gram. When hospitalized in Hawaii, into a comparable care agreement with Alaska, or in a foreign medical facility, the United States requiring the United members and responsible commands States to provide inpatient and out- will comply with OPNAVINST 6320.6.

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(b) Secondary sources. When either (ii) Prosthetic treatment to restore emergency or nonemergency care is re- extensive loss of masticatory function quired and there are no Federal or or the replacement of anterior teeth NATO SOFA facilities available, care for esthetic reasons. may be obtained from non-Federal (iii) Repair of existing dental pros- sources under this part. theses when neglect of the repair would result in unserviceability of the appli- § 732.14 Authorized care. ance. (a) Medical. (1) Consultation and (iv) Any type of treatment adjunctive treatment provided by physicians or at to medical or surgical care. medical facilities, and procedures not (v) All x-rays, drugs, etc., required involving treatment when directed by for treatment or care in paragraphs COMNAVMEDCOM, are authorized. (c)(1) (i) through (iv) of this section. Such care includes, but is not limited (2) In emergencies (no prior ap- to: treatment by physicians, hospital proval), only measures appropriate to inpatient and outpatient care, surgery, relieve pain or abort infection are au- nursing, medicine, laboratory and x- thorized. ray services, physical therapy, eye ex- (d) Eye refractions and spectacles. In- aminations, etc. See § 732.17 for prior cludes refractions of eyes by physicians approval of these services in non- and optometrists and furnishing and emergency situations. repairing spectacles. (2) When transplant (including bone- (1) Refractions. A refraction may be marrow) is the treatment of choice, obtained from a civilian source at Gov- COMNAVMEDCOM approval is re- ernment expense only when Federal fa- quired. If time permits, telephone (A) cilities are not available, no suitable 294–1102, (C) (202) 653–1102 during reg- prescription is in the member’s Health ular hours or (A) 294–1327, (C) 653–1327 Record, and the cognizant OMA or re- after regular duty hours, and followup ferring USMTF has given prior ap- with a message. Request approval via proval. message in nonemergency situations. (2) Spectacles. When a member has no (b) Maternity episode. If a member au- suitable spectacles and the lack there- thorized care under this part qualifies of, combined with the delay in obtain- for care under the provisions of ing suitable ones from a Federal source § 732.17(c) and delivers in a civilian hos- would prevent performance of duty; re- pital, routine newborn care (i.e., nurs- pair, replacement, or procurement ery, newborn examination, PKU test, from a civilian source may be author- etc.) is a part of the mother’s admis- ized upon initiation of an after-the-fact sion expenses. Regardless of cir- request per § 732.17. Otherwise, the pre- cumstances necessitating delivery in a scription from the refractionist, with civilian facility or how charges are sep- proper facial measurements, must be arated on the bill, charges will be paid sent for fabrication to the appropriate from funds available for care of the dispensing activity set forth in mother. If the infant becomes a patient NAVMED COMINST 6810.1. See in his or her own right—through an ex- § 732.15(g) concerning contact lenses. tension of the birthing hospital stay § 732.15 Unauthorized care. because of complications, transfer to another facility, or subsequent admis- The following are not authorized by sion—the provisions of part 728 of this this part: chapter and NAVMEDCOMINST 6320.18 (a) Chiropractic services. are applicable, and the sponsor be- (b) Vasectomies. comes responsible for a part of the (c) Tubal ligations. medical expenses incurred. (d) Breast augmentations or reduc- (c) Dental. (1) With prior approval, tions. the following may be provided: (e) Psychiatric care, beyond the ini- (i) All types of treatment (including tial evaluation. operative, restorative, and oral sur- (f) Court ordered care. gical) to relieve pain and abort infec- (g) Contact lenses. tion. (h) Other elective procedures.

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§ 732.16 Emergency care requirements. after-the-fact approval per this para- Only in a bona fide emergency will graph. medical, maternity, or dental services (2) Submit requests on a NAVMED be obtained under this part by or on be- 6320/10. Statement of Civilian Medical/ half of eligible personnel without prior Dental Care, with blocks 1 through 7 authority as outlined below. and 19 through 25 completed. Assist- (a) Medical or dental care. A situation ance in completing the NAVMED 6320/ where the need or apparent need for 10 can be obtained from the health ben- medical or dental attention does not efits advisor (HBA) at the nearest permit obtaining approval in advance. USMTF. (b) Maternity care. When a condition (3) Upon receipt, the adjudication au- commences or exacerbates during preg- thority will review the request and, if nancy in a manner that a delay, caused necessary, forward it to the appro- by referral to a USMTF or USTF, priate chief of service with an expla- would jeopardize the welfare of the nation of non-Federal care regulations mother or unborn child, the following pertaining to the request. The chief of constitutes indications for admission service will respond to the request to or treatment at a non-Federal facil- within 24 hours. The adjudication au- ity: thority will then complete blocks 26 (1) Medical or surgical conditions and 27, and return the original of the which would constitute an emergency approved/disapproved NAVMED 6320/10 in the nonpregnant state. to the member. (2) Spontaneous abortion, with first trimester hemorrhage. (b) Blanket prior approval. (1) Recruit- (3) Premature or term labor with de- ing offices and other activities far re- livery. moved from USMTFs, uniformed serv- (4) Severe pre-eclampsia. ices dental treatment facilities (5) Hemorrhage, second and third tri- (USDTFs), designated USTFs, and VA mester. facilities may request blanket approval (6) Ectopic pregnancy with cardio- for civilian medical and dental care of vascular instability. assigned active duty personnel. Letter (7) Premature rupture of membrames requests should be submitted to the ad- with prolapse of the umbilical cord. judication authority (§ 732.20) assigned (8) Obstetric sepsis. responsibility for the geographic area (9) Any other obstetrical condition of the requestor. that, by definition, constitutes an (2) With full realization that such emergency circumstance. blanket approval is an authorization to obligate the Government without indi- § 732.17 Nonemergency care require- vidual prior approval, adjudication au- ments. thorities will ensure that: Members are cautioned not to obtain (i) Each blanket approval letter nonemergency care from civilian specifies a maximum dollar amount al- sources without prior approval from lowable in each instance of care. the cognizant adjudication authority (ii) The location of the activity rein § 732.20. Obtaining nonemergency ceiving blanket approval authority is care, other than as specified herein, clearly delineated. without documented prior approval may result in denial by the Govern- (iii) Travel distance and time re- ment of responsibility for claims aris- quired to reach the nearest USMTF, ing from such care. USDTF, designated USTF, or VA facil- (a) Individual prior approval. (1) Sub- ity have been considered. mit requests for prior approval of non- (iv) Certain conditions are specifi- emergency care (medical, dental, or cally excluded, e.g., psychiatric care maternity) from non-Federal sources and elective surgical procedures. These to the adjudication authority (§ 732.20) conditions will continue to require in- serving the geographic area where care dividual prior approval. is to be obtained. When the require- (v) COMNAVMEDCOM (MEDCOM- ments of § 732.14(d)(2) are met and spec- 333) is made an information addressee tacles have been obtained, request on each letter of authorization.

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(c) Maternity care. (1) Pregnant active should be denied when members have duty members residing outside Mili- not attempted to adhere to the provi- tary Health Services System (MHSS) sions of this part. inpatent catchment areas of uniformed (4) Upon arrival at the designated services facilities (including USTFs), leave address, members should contact designated in Volumes I, II, and III of the MTF indicated on the statement MHSS Catchment Area Directories, are attached to their leave request. The permitted to choose whether to deliver MTF will make a determination wheth- in a closer civilian hospital or travel to er the member’s leave address falls a USMTF or USTF for delivery. If the within the inpatient catchment area of Government is to assume financial re- a USMTF or USTF with the capability sponsibility for non-Federal maternity of providing needed care. If no such care of any member regardless of where USMTF or USTF exists, the member she resides, the member must obtain will be given the opportunity to choose individual prior approval as outlined in to deliver in a civilian hospital closer paragraph (a) of this section. Adjudica- to her leave address or travel to the tion authorities should not approve re- most accessible USMTF or USTF with quests from members residing within capability for maternity care. an inpatient MHSS catchment area un- (5) Upon determination that civilian less: sources will be used for maternity care, (i) Capability does not (did not) exist the MTF listed on the attachment to at the USMTF or other Federal MTF the leave papers will inform the mem- serving her catchment area. ber that she (or someone acting in her (ii) An emergency situation neces- behalf) must notify that MTF of the sitated delivery or other treatment in member’s admission for delivery or a non-Federal facility (§ 732.16(b)). other inpatient care so that medical (2) Normal delivery at or near the ex- cognizance can be initiated. pected delivery date should not be con- (6) Automatically grant prior or ret- sidered an emergency for members re- roactive approval, as the situation war- siding within an MHSS inpatient rants, to members requiring maternity catchment area where delivery was ex- care while in a travel status in the exe- pected to occur and, unless provided for cution of permanent change of station in this part, will not be reason for de- (PCS) orders. livery in a civilian facility at Govern- (d) Nonemergency care without prior ment expense. approval. (1) If it becomes known that a (3) When granted leave that spans the member intends to seek medical or period of an imminent delivery, the dental care (inpatient or outpatient) pregnant member should request a from a non-Federal source and prior copy of her complete prenatal care approval has not been granted for the records from the prenatal care physi- use of the Nonnaval Medical and Den- cian. The physician should note in the tal Care Program, the member must be record whether the member is clear to counseled by, or in the presence of, a travel. If receiving prenatel care from Medical Department officer. Request a USMTF, the HBA will assist the that the member sign a statement on member in obtaining a statement bear- an SF 600, Chronological Record of ing the name of the MTF (may be an Medical Care, or an SF 603 or 603A, OMA) with administrative responsi- Health Record, Dental as appropriate, bility for the geographic area of her for inclusion in the member’s Health leave address, including the telephone Record. The statement must specify number of the head of the patient ad- that counseling has been accomplished, ministration department or HBA, if and that the member understands the available. If a member is receiving pre- significance of receiving unauthorized natal care from other than a USMTF, civilian care. This must be accom- she should avail herself of the services plished when either personal funds or of the nearest HBA to effect the third party payor (insurance) funds are aforestated services. This statement intended to be used to defray the cost should be attached to the approved of care. Counseling will include: leave request. In normal deliveries, re- (i) Availability of care from a Fed- quests for after-the-fact approval eral source.

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(ii) The requirement for prior ap- ber and, if appropriate, newborn in- proval if the Government may be ex- fant(s), to a Federal facility or for such pected to defray any of the cost of such other action as is appropriate. care. (i) Name, grade or rate, and social se- (iii) Information regarding possible curity number of patient. compromise of disability benefits (ii) Name of non-Federal medical or should a therapeutic misadventure dental facility rendering treatment. occur. (iii) Date(s) of such treatment. (iv) Notification that should hos- (iv) Nature and extent of treatment pitalization become necessary, or other or care already furnished. time is lost from the member’s place of (v) Need or apparent need for further duty, such lost time may be chargeable treatment (for maternity patients, as ‘‘ordinary leave.’’ need or apparent need for further care (v) Notification that the Government of infant(s) also). cannot be responsible for out-of-pocket (vi) Earliest date on which transfer expenses which may be required by the to a Federal facility can be effected. insurance carrier or when the member (vii) Telephone number of attending does not have insurance which covers physician and patient. the cost of contemplated care. (2) Should movement be delayed due (vi) Direction to report to a uni- to actions of the member or the mem- formed services medical officer (pref- ber’s family, payment may be denied erably Navy) upon completion of treat- for all care received after provision of ment for determination of member’s written notification by the adjudica- fitness for continued service. tion authority. (2) If it becomes known that a mem- (3) The denial is § 732.18(a)(2) will be ber has already received non-Federal for care received after the member’s medical care without prior authoriza- condition has stabilized and after the tion, refer the member to a uniformed cognizant adjudication authority has services medical officer (preferably made a request to the attending physi- Navy) to determine fitness for contin- cian and hospital administration for ued service. At this time, counseling the member’s release from the civilian measures delineated in paragraph facility. This notification must specify: (d)(1)(iii), (iv), and (v) of this section (i) Date and time the Navy will ter- must be taken. minate its responsibility for payment. (ii) That care rendered subsequent to § 732.18 Notification of illness or in- receipt of the written notification is at jury. the expense of the member. (a) Member’s responsibility. (1) If able, (b) Adjudication authority. As soon as members must notify or cause their it is ascertained that a member is parent command, the nearest naval ac- being treated in a nonnaval facility, tivity, or per OPNAVINST 6320.6, the adjudication authorities must make nearest U.S. Embassy or consulate the notifications required in when hospitalized in a foreign medical MILPERSMAN, article 4210100.11. See facility to be notified as soon as pos- part 728 of this chapter on message sible of the circumstances requiring drafting and information addressees. medical or dental attention in a non- (1) Article 4210100.11 of the Federal facility. The member will also MILPERSMAN requires submission of assure (request the facility to make no- a personnel casualty report, by priority tification if unable to do so personally) message, to the primary and secondary that the following information is next of kin (PNOK/SNOK) of Navy passed to the adjudication authority members seriously or very seriously ill serving the area of the source of care or injured, and on those terminally ill (§ 732.20). This notification is in addi- (diagnosed and confirmed). While sub- tion to the requirements of article mission of the personnel casualty re- 4210100 of the Military Personnel Com- port to the PNOK and SNOK is a re- mand Manual (MILPERSMAN) or Ma- sponsibility of the member’s command, rine Corps Order 6320.3B, as appro- adjudication authorities must advise priate. The adjudication authority will the member’s command when such a then arrange for transfer of the mem- member is being treated or diagnosed

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by non-Federal sources. The message block 10. If prior approval was not ob- will also request forwarding of the tained, state in block 11 circumstances member’s service and medical records necessitating use of non-Federal facili- to the personnel support detachment ties. (PSD) supporting the activity in which (iii) Signature by the member in the OMA is located. Additionally, the block 17 implies agreement for release notification should contain a request of information to the responsible adju- for appropriate orders, either tem- dication authority receiving the claim porary additional duty (TEMADD) or for processing. Signature by the certi- temporary duty (TEMPDU). fying officer in block 18 will be consid- (i) Request TEMADD orders if care is ered certification that documentation expected to terminate within the time has been entered in the member’s constraints imposed for these orders. Health Record as directed in article 16– (ii) Request TEMDU Under Treat- 24 of MANMED. ment orders for members hospitalized (2) Itemized bills. The original and in a NMTF within the adjudication three copies of itemized bills to show: authority’s area of responsibility. (i) Dates on or between which serv- (2) Make prompt message notifica- ices were rendered or supplies fur- tion to the member’s commanding offi- nished. cer when apprised of any medical con- (ii) Nature of and charges for each dition, including pregnancy, which will item. now or in the foreseeable future result (iii) Diagnosis. in loss of a member’s full duty services in excess of 72 hours. Mark the message (iv) Acknowledgment of receipt of ‘‘Commanding Officer’s Eyes Only.’’ the services or supplies on the face of the bill or by separate certificate. The § 732.19 Claims. acknowledgment must include the statement. Services were received and (a) Member’s responsibility. Members ‘‘ were satisfactory. receiving care are responsible for prep- ’’ aration and submission of claims to the (3) Claims for reimbursement. To effect cognizant adjudication authority iden- reimbursement, also submit the origi- tified in § 732.20. A complete claim in- nal and three copies of paid receipts cludes: and an SF 1164. Claim for Reimburse- (1) NAVMED 6320/10, Statement of Ci- ment for Expenditures on Official Busi- vilian Medical/Dental Care. In addition ness, completed per paragraphs 046377– to its use as an authorization docu- 2 a and b of the Naval Comptroller ment, the original and three copies of a Manual (NAVCOMPT MAN). NAVMED 6320/10 are required to adju- (4) Notice of eligibility (NOE) and line dicate claims in each instance of sick- of duty (LOD) determination. When a re- ness, injury, or maternity care when servist claims benefits for care re- treatment is received from a non-Fed- ceived totally after the completion of eral source under the provisions of this either an active duty or active duty for part. The form should be prepared by a training period, the claim should also naval medical or dental officer, when include: practicable, by the senior officer (i) An NOE issued per SECNAVINST present where a naval medical or den- 1770.3. tal officer is not on duty, or by the (ii) An LOD determination from the member receiving care when on de- member’s commanding officer. tached duty where a senior officer is (b) Adjudicating authority’s responsi- not present. bility. Reviewing and processing prop- (i) For nonemergency care with prior erly completed claims and forwarding approval, submit the NAVMED 6320/10 approved claims to the appropriate dis- containing the prior approval, after bursing office should be completed completing blocks 8 through 18. within 30 days of receipt. Advice may (ii) For emergency care (or non- be requested from COMNAVMEDCOM emergency care without prior ap- (MEDCOM–333 (A/V 294–1127)) for med- proval), submit a NAVMED 6320/10 ical or MEDCOM–06 (A/V 294–1250)) for after completing blocks 1 through 18. dental on unusual or questionable in- Assure that the diagnosis is listed in stances of care. Advise claimants of

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any delay experienced in processing approval and the appropriate avenues claims. of appeal as outlined in § 732.24. (1) Review. The receiving adjudication (3) Processing. Subpart C contains the authority will carefully review each chargeable accounting classifications claim submitted for payment or reim- and Standard Document Numbers bursement to verify whether: (SDN) to be cited on the NAVCOMPT (i) Claimant was entitled to benefits 2277, Voucher for Disbursement and/or (i.e., was on active duty, active duty Collection, on an SF 1164 submitted per for training, inactive duty training, paragraph (a)(3) of this section, and on was not an unauthorized absentee, supporting documents of approved etc.). As required by part 728 of this claims before submission to disbursing chapter, a Defense Enrollment Eligi- offices. bility Reporting System (DEERS) eli- (i) For payment to providers of care, gibility check must be performed on a NAV COMPT 2277 will be prepared claims to all claimants required to be and certified approved for payment by enrolled in DEERS. the adjudicating authority. This form (ii) Care rendered was due to a bona must accompany the NAVMED 6320/10 fide emergency. (NOTE: When questions and supporting documentation per arise as to the emergency nature of paragraph 046393–1 of the care, forward the claim and all sup- NAVCOMPTMAN. porting documentation to the appro- (ii) Where reimbursement is re- priate clinical specialist at the nearest quested, the SF 1164 submitted per naval hospital for review.) § 732.19(a)(3) will be completed, per (iii) Prior approval was granted if a paragraph 046377 of the bona fide emergency did not exist. NAVCOMPTMAN, and certified ap- (NOTE: If prior approval was not ob- proved for payment by the adjudicating tained and the condition treated is de- authority. This form must accompany termined to have been nonemergent, the NAVMED 6320/10 and supporting the claim may be denied.) Consider- documentation. ation should always be given to cases (c) Amount payable. Amounts payable that would have received prior ap- are those considered reasonable after proval but, due to lack of knowledge of taking into consideration all facts. the program, the member did not sub- Normally, payment should be approved mit a request. at rates generally prevailing within the (iv) Care rendered was authorized geographic area where services or sup- under the provisions of this part. plies were furnished. Although rates (v) Care rendered was appropriate for specially established by the Veterans the specific condition treated. (NOTE: Administration, CHAMPUS, or those When questions arise regarding appro- used in Medicare are not controlling, priateness of care, forward all docu- they should be considered along with mentation to a clinical specialist at other facts. the nearest naval hospital for review. If (1) Excessive charges. If any charge is care is determined to have been inap- excessive, the adjudication authority propriate, the claim may be denied to will advise the provider of care of the the extent the member was negligent.) conclusion reached and afford the pro- (vi) Claimed benefits did not result vider an opportunity to voluntarily re- from a referral by a USMTF. If the duce the amount of the claim. If this member was an inpatient or an out- does not result in a proper reduction patient in a USMTF immediately prior and the claim is that of a physician or to being referred to a civilian source of dentist, refer the difference in opinions care, the civilian care is supplemental to the grievance committee of the pro- and may be the responsibility of the re- vider’s professional group for an opin- ferring USMTF. See § 732.11(p) for the ion of the reasonableness of the charge. definition of supplemental care. If satisfactory settlement of any claim (2) Dispproval. If a determination is cannot thus be made, forward all docu- made to disapprove a claim, provide mentation to COMNAVMEDCOM the member (and provider of care, when (MEDCOM–333) for decision. Charges applicable) a prompt and courteous let- determined to be above the allowed ter stating the reason for the dis- amount or charges for unauthorized

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services are the responsibility of the Command, Northeast Region, Office of service member. Dental Affairs, Great Lakes, IL 60088, (2) Third party payment. Do not with- Tele: (A/V) 792–3940 or (C) (312) 688–3940. hold payment while seeking funds from (ii) Responsibility for medical mat- health benefit plans or from insurance ters for States in the Northeast Region policies for which premiums are paid is vested in: Commander, Naval Med- privately by service members (see ical Command, Northeast Region, Of- § 732.22 for possible recovery of pay- fice of Medical Affairs, Great Lakes, IL ments action). 60088, Tele: (A/V) 792–3950 or (C) (312) (3) No-fault insurance. In States with 688–3950. no-fault automobile insurance require- (2) National Capital Region. For the ments, adjudication authorities will States of Maryland and West Virginia; notify the insurance carrier identified in item 16 of the NAVMED 6320/10 that the Virginia counties of Arlington, Federal payment of the benefits in this Fairfax, Loudoun, and Prince William; part is secondary to any no-fault insur- the Virginia cities of Alexandria, Falls ance coverage available to the poten- Church, and Fairfax; and the District tially covered member. of Columbia, responsibility for medical (d) Duplicate payments. Adjudication and dental matters is vested in: Com- authorities and disbursing activities mander, Naval Medical Command, Na- should take precautions against dupli- tional Capital Region, Office of Medical cate payments per paragraph 046073 of Affairs, Bethesda, MD 20814, Tele: (A/V) the NAVCOMPTMAN. 295–5322 or (C) (301) 295–5322. (3) Mid-Atlantic Region. For the § 732.20 Adjudication authorities. States of North Carolina, South Caro- (a) General. Controlling activities for lina, and all areas of Virginia south medical care in the United States are and west of Prince William and designated as ‘‘offices of medical af- Loudoun counties, responsibility for fairs’’ (OMA) and for dental care, ‘‘of- medical and dental matters is vested fices of dental affairs’’ (ODA). in: Commander, Naval Medical Com- NAVMEDCOMINST 6010.3 delineates mand, Mid-Atlantic Region, 6500 Hamp- responsibilities and functional tasks of ton Boulevard, Norfolk, VA 23502, Attn: OMAs and ODAs, including monthly re- Office of Medical/Dental Affairs, Tele: porting of receipt of claims and claims (A/V) 565–1074/1075 or (C) (804) 445–1074 payment. Commanders of geographic or 1075. naval medical commands must commu- (4) Southeast Region. For the States of nicate with all activities in their re- Alabama, Arkansas, Florida, Georgia, gions to ensure that messages and med- Louisiana, Mississippi, Oklahoma, Ten- ical cognizance reports are properly nessee, and Texas, medical and dental furnished per higher authority direc- responsibilities are vested in: Com- tives. manding Officer, Naval Medical Clinic, (b) Within the United States (less Ha- Code O1A, New Orleans, LA 70146, Tele: waii). For the 48 contiguous United States, the District of Columbia, and (A/V) 485–2406/7/8 or (C) (504) 361–2406 Alaska, the following six regions are 2407 or 2408. responsible for care rendered or to be (5) Southwest Region. For the States rendered within their areas of responsi- of Arizona and New Mexico; the coun- bility. ties of Kern, San Bernadino, San Luis (1) Northeast Region. The States of Obispo, Santa Barbara, and all other Connecticut, Delaware, Illinois, Indi- California counties south thereof; the ana, Iowa, Kentucky, Maine, Massa- community of Bridgeport, California chusetts, Michigan, Minnesota, Mis- (Marine Corps cold-weather training souri, New Hampshire, New Jersey, site); and Nevada, except for NAS New York, Ohio, Pennsylvania, Rhode Fallon and its immediate area; medical Island, Vermont, and Wisconsin are and dental responsibilities are vested served by 1 ODA and 1 OMA: in: Commander, Naval Medical Com- (i) Responsibility for dental matters mand, Southwest Region, Office of for States in the Northeast Region is Medical Affairs, San Diego, CA 92134– vested in: Commander, Naval Medical 7000, Tele: (A/V) 987–2611 or (C) 233–2611.

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(6) Northwest Region. The States of Naval Hospital, Yokosuka, Japan), for Alaska, Colorado, Idaho, Kansas, Mon- care rendered in Japan, Korea, and tana, Nebraska, North Dakota, Oregon, Okinawa. South Dakota, Utah, Washington, and (4) Commanding Officer, U.S. Naval Wyoming; the counties of Inyo, Kings, Hospital, FPO San Francisco 96630–1600 Tulare, and all other counties of Cali- (U.S. Naval Hospital, Guam, Mariana fornia north thereof; and NAS Fallon, Islands), for care rendered in New Zea- Nevada and its immediate area are land and Guam. served by 2 OMAs and 1 ODA: (5) Commanding Officer, U.S. Naval (i) Responsibility for dental matters Communications Station, FPO San for the area of responsibility of the Francisco 96680–1800 (U.S. Naval Com- Northwest Region is vested in: Com- munications Station, Harold E. Holt, mander, Naval Medical Command, Exmouth, Western Australia), for care Northwest Region, Office of Dental Af- rendered in Australia. fairs, Oakland, CA 94267–5025, Tele: (A/ (6) Commanding Officer, U.S. Naval V) 855–6200 or (C) (415) 633–6200. Air Station, FPO New York 09560 (U.S. (ii) Responsibility for medical mat- Naval Air Station, Bermuda), for care ters for the States of Colorado, Kansas, rendered in Bermuda. and Utah; the California counties of (7) Commanding Officer, U.S. Naval Inyo, Kings, Tulare, and all other coun- Hospital, FPO Miami 34051 (U.S. Naval ties of California north thereof; and Hospital, Roosevelt Roads, Puerto NAS Fallon, Nevada and its immediate Rico), for maternity and medical care, area is vested in: Commander, Naval Medical Command, Northwest Region, and Commanding Officer, U.S. Naval Oakland, CA 94627–5025, Attn: Office of Dental Clinic, FPO Miami 34051 (U.S. Medical Affairs, Tele: (A/V) 855–5705 or Naval Dental Clinic, Roosevelt Roads, (C) (415) 633–5705. PR), for dental care rendered in Puerto (iii) Responsibility for medical mat- Rico, the Virgin Islands, and other Car- ters for the States of Alaska, Idaho, ibbean Islands. Montana, Nebraska, North Dakota, Or- (8) Commanding Officer, Naval Med- egon, South Dakota, Washington, and ical Clinic, Box 121, Pearl Harbor, HI Wyoming is vested in: Commanding Of- 96860, for maternity and medical care, ficer, Naval Medical Clinic, Naval Sta- and Commanding Officer, Naval Dental tion, Seattle, WA 98115, Attn: Office of Clinic, Box 111, Pearl Harbor, HI 96860, Medical Affairs, Tele: (A/V) 941–3823 or for dental care rendered in the State of (C) (206) 526–3823. Hawaii, Midway Island, and the Central (c) Outside the United States (plus Ha- Pacific basin. waii). For all areas outside the United (9) The OMA for either the Southeast States plus Hawaii, the following ac- Region or the Southwest Region for tivities are vested with responsibility care rendered in Mexico to members for approval or disapproval of requests stationed within the respective areas of and claims for maternity, medical, and responsibility of these OMAs. Forward dental care: claims for care rendered in Mexico to (1) Executive Director, all other personnel to Commander, OCHAMPUSEUR, U.S. Army Medical Naval Medical Command, Washington, Command, APO New York 09102, for DC 20372–5120 (MEDCOM–333). care rendered within the U.S. European (10) Commander, Naval Medical Com- Command, Africa, the Malagasy Repub- mand, Washington, DC 20372–5120 lic, and the Middle East. (MEDCOM–333) for inpatient and out- (2) Commanding Officer, U.S. Naval patient emergency and nonemergency Hospital, FPO San Francisco 96652–1600 care of active duty Navy and Marine (U.S. Naval Hospital, Subic Bay, Corps members in Canada and under Luzon, Republic of the Philippines), for the circumstances outlined in para- care rendered in Afghanistan, Ban- graph (d) of this section. gladesh, Hong Kong, India, Nepal Paki- (11) Outside the 50 United States, stan, the Philippines, Southeast Asia, commanding officers of operational Sri Lanka and Taiwan. units may either approve claims and (3) Commanding Officer, U.S. Naval direct payment by the disbursing offi- Hospital, FPO Seattle 98765–1600 (U.S. cer serving the command or forward

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claims to the appropriate naval med- Standards Notes, available from ical command in paragraphs (b)(1) COMNAVMEDCOM (MEDCOM–25), pro- through (c)(9) of this section. This is a vide guidance. local policy decision to enhance the (a) Chronic conditions requiring a maintenance of good public relations. medical board include (but are not lim- (12) The appropriate command in ited to): paragraphs (b)(1) through (c)(9) of this (1) Arthritis, section for care rendered aboard com- (2) Asthma, mercial vessels en route to a location (3) Diabetes, within the geographic areas listed. (4) Gout, (13) The commanding officer author- (5) Heart disease, izing care in geographical areas not (6) Hypertension, specifically delineated elsewhere in this section. (7) Peptic ulcer disease, (d) The Commander, Naval Medical (8) Psychiatric conditions, and Command (MEDCOM–333), Navy Depart- (9) Allergic conditions requiring de- ment, Washington, DC 20372–5120. Under sensitization. the following circumstances, responsi- (b) Other potentially disabling or bility is vested in COMNAVMEDCOM chronic conditions may be referred to a for adjudication of claims: medical board by the adjudication au- (1) For reservists who receive treat- thority with the concurrence of an ap- ment after completion of their active propriate naval clinical specialist and duty or inactive duty training as pre- the commander of the regional medical scribed in § 732.12(b). command. (2) For care rendered in Mexico to personnel stationed outside the areas § 732.22 Recovery of medical care pay- of responsibility of the Southeast and ments. Southwest Regions. Adjudication authorities must sub- (3) For care rendered to members sta- mit evidence of payment to the action tioned in or passing through countries JAG designee per chapter 24 of the in Central and South America. Manual of the Judge Advocate General (4) For outpatient care rendered (JAGMAN), in each instance of pay- NATO active duty members. ment where a third party may be le- (5) When Departmental level review gally liable for causing the injury or is required prior to approval, adjudica- disease treated, or when a Government tion, or payment. These claims: claim is possible under workers com- (i) Will be considered on appeal. pensation, no-fault insurance, or under (ii) Must be forwarded by the member medical payments insurance (all auto- through the adjudication authority mobile accident cases). chain of command (In instances of un- (a) To assist in identifying possible usual or controversial denial of claims, third party liability cases, item 16 of the adjudication authority may for- each NAVMED 6320/10 must be com- ward claims to COMNAVMEDCOM on pleted whenever benefits are received appeal, via the chain of command, with in connection with a vehicle accident. notification to the member.). Adjudication authorities should return (6) For all inpatient and outpatient for completion, as applicable, any care of active duty Navy and Marine claim received without item 16 com- Corps members stationed in the United pleted. States who receive care in Canada. (b) The front of a NAVJAG Form 5890/12 (Hospital and Medical Care, 3rd § 732.21 Medical board. Party Liability Case) must be com- When adjudication authorities un- pleted and submitted by adjudication cover conditions which may be chronic authorities with evidence of payment. or otherwise potentially disabling, Block 4 of this form requires an ap- they should make a determination pended statement of the patient or an (with help from appropriate clinical accident report, if available. To ensure specialists) as to the need for a medical that Privacy Act procedures are ac- board. Chapter 18 of MANMED and complished and documented, the per- Medical Disposition and Physical son securing such a statement from a

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recipient of care must show the recipi- classification for inpatient subsistence ent the Privacy Act statement printed collections. at the bottom of the form prior to securing such a statement. The member § 732.24 Appeal procedures. should be asked to sign his or her name When a claim for care or a request beneath the statement. for prior approval for nonemergency (c) For care rendered in States with care is initially denied by an adjudica- no-fault insurance laws, comply with tion authority, the member may appeal procedures outlined in § 732.19(c)(3). the denial as outlined below. Any level in the appeal process may over-rule the § 732.23 Collection for subsistence. previous decision and order payment of The Navy Pay and Personnel Proce- the claim in whole or in part or grant dures Manual provides guidance re- the request for prior approval of care. (a) Level I—Reconsideration by the garding pay account checkage proce- adjudication authority making the ini- dures to liquidate subsistence charges tial denial. The member should submit incurred by members entitled to care any additional information that may under the provisions of this part. Such mitigate the initial denial. members must also be entitled to basic (b) Level II—Consideration by the allowance for subsistence (BAS) while commander of the regional medical hospitalized at Government expense. command having cognizance over the The responsible activity (the adjudica- adjudication authority which upheld tion authority or the naval MTF to the initial denial on reconsideration. which such a member is transferred) (c) Level III—Consideration by should follow procedures outlined in COMNAVMEDCOM (MEDCOM–333). the Navy Pay and Personnel Proce- dures Manual when an eligible officer or enlisted member of the naval service Subpart C—Accounting Classi- is subsisted at Department of the Navy fications for Nonnaval Med- expense while hospitalized in a ical and Dental Care Ex- nonnaval treatment facility. Subpart C penses and Standard Docu- contains the creditable accounting ment Numbers

§ 732.25 Accounting classifications for nonnaval medical and dental care 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:

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*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.

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 Financial Docu- ment. 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 § 733.1 Rates of basic allowance for SUPPORT OF DEPENDENTS; PA- housing (BAH). TERNITY COMPLAINTS (a) Except as otherwise provided by law, a member of the naval service en- Sec. titled to basic pay is entitled to a BAH 733.1 Rates of basic allowance for housing at the monthly rates according to the (BAH). pay grade to which he or she is as- 733.2 Delegations. signed, in accordance with 37 U.S.C. 733.3 Information and policy on support of 403. dependents. (b) The term ‘‘dependent’’ with re- 733.4 Complaints of nonsupport and insuffi- spect to a member of the naval service, cient support of dependents. as used in this part, means: 733.5 Determination of paternity and sup- (1) His or her spouse; port of illegitimate children. (2) His or her unmarried child (in- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5013; 37 cluding any of the following categories U.S.C. 101, 401, 403; 50 U.S.C. App. 2210; E.O. of children if such child is in fact de- 11157, 29 FR 7973, 3 CFR 1964 Supp. p. 139, as pendent on the member: A stepchild; amended. an adopted child; or an illegitimate child whose alleged member-parent has SOURCE: 44 FR 42190, July 19, 1979, unless been judicially decreed to be the parent otherwise noted. of the child or judicially ordered to

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contribute to the child’s support, or matters involving adequacy of support whose parentage has been admitted in for dependents and waivers of support writing by the member) who either: of a spouse, and on the basis of new evi- (i) Is under 21 years of age; or dence or for other good cause to recon- (ii) Is incapable of self-support be- sider or modify any such determina- cause of a mental or physical inca- tion. pacity, and in fact dependent on the member for over one-half of his or her [44 FR 42190, July 19, 1979, as amended at 65 support; and FR 62617, Oct. 19, 2000] (3) His or her parent (including a § 733.3 Information and policy on sup- stepparent or parent by adoption, and port of dependents. any person, including a former stepparent, who has stood in loco parentis (a) Policy—(1) General. The naval to the member at any time for a con- service will not be a haven or refuge for tinuous period of at least 5 years before personnel who disregard or evade their he or she became 21 years of age) who obligations to their families. All mem- is in fact dependent on the member for bers of the naval service are expected over one-half of his or her support; to conduct their personal affairs satis- however, the dependency of such a par- factorily. This includes the require- ent is determined on the basis of an af- ment that they provide adequate and fidavit submitted by the parent and continuous support for their lawful de- any other evidence required under reg- pendents and comply with the terms of ulations prescribed by the Secretary of separation agreements and court or- the Navy, and he or she is not consid- ders. Failure to do so which tends to ered a dependent of the member claim- bring discredit on the naval service is a ing the dependency unless: proper subject of command consider- (i) The member has provided over ation for initiation of court-martial one-half of his or her support for the proceedings or other administrative or period prescribed by the Secretary; or disciplinary action. (ii) Due to changed circumstances (2) Adequacy of support. Every mem- arising after the member enters on ac- ber has an inherent natural and moral tive duty, the parent becomes in fact obligation to support his or her spouse dependent on the member for over one- and family. What is adequate and rea- half of is or her support. sonably sufficient support is a highly The relationship between a stepparent complex and individual matter depend- and his or her stepchild is terminated ent on numerous factors, and may be by the stepparent’s divorce from the resolved permanently only in the civil parent by blood. courts. Salient factors that should be [44 FR 42190, July 19, 1979, as amended at 65 considered are the pay of the member, FR 62617, Oct. 19, 2000] any other private income or resources of the member and the dependents, the § 733.2 Delegations. cost of necessities and every day living The Director, Navy Family Allow- expenses and financial obligations of ance Activity, Anthony J. Celebrezze the dependents, and the expenses and Federal Building, Cleveland, OH 44199, other financial obligations of the mem- with respect to personnel of the Navy, ber in relation to his or her income. and the Head, Personal Affairs Branch, The Department of the Navy does not Manpower Department, Headquarters and cannot act as a court in these mat- United States Marine Corps, Wash- ters. It is desired that the amount of ington, DC 20380, with respect to per- support to be provided for dependents sonnel of the Marine Corps, have been either be established by mutual under- granted the authority by the Secretary standing between the parties concerned of the Navy to make determinations or adjudicated in the civil courts. The including determinations of depend- support scales set forth in paragraphs ency and relationship when required by (b) and (c) of this section are not in- legislation or policy for eligibility for tended as a fixed rule. They are in- BAH, transportation and medical care tended as guidelines and the actual in behalf of dependents of Navy and support may be increased or decreased Marine personnel and to administer as the facts and circumstances warrant

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until the amount of support to be fur- spouse. The obligation to support a nished is settled by agreement of the child or children is not affected by dis- parties or adjudicated by the civil solution of the marriage through di- courts. Because of the inherent arbi- vorce, unless the judicial decree or trary and temporary nature of the sup- order specifically negates the obliga- port scales set forth below, it is not in- tions of the member to support a child tended that they be used as bases for or children of the marriage. The fact any judicial proceedings, for to do so that a divorce decree is silent relative would lend excessive credence to ad- to support of minor children or does ministrative tools which have been de- not mention a child or children will signed for use only within the Navy not be considered as relieving the serv- and the Marine Corps. ice member of the inherent obligation (b) Navy members. (1) The amount of to provide support for the child or chil- support to be provided in the absence dren of the marriage. In many cases, of a mutual agreement or court order the courts may not be cognizant of the is as follows: existence of a child or children, or may not have jurisdiction over the child or For spouse only— 1⁄3 gross pay For spouse and one minor child—1⁄2 gross pay children. A commanding officer has For spouse and two or more children—3⁄5 discretion to withhold action for al- gross pay leged failure to support a child under For one minor child—1⁄6 gross pay the following conditions: For two minor children—1⁄4 gross pay (i) Where the member cannot ascer- 1 For three or more children— ⁄3 gross pay tain the whereabouts and welfare of (2) For purposes of this support the child concerned. guide, gross pay will include basic pay (ii) Where it is apparent that the per- and BAH, but does not include haz- son requesting support for a child does ardous duty pay, sea or foreign duty not have physical custody of the child. pay, incentive pay, or basic allowance (iii) Where the member has been for subsistence. granted custody of the child by court (3) Support of a lawful wife. The laws order but does not have physical con- of jurisdictions in the United States trol of the child and the member is impose a legal obligation upon a hus- ready, willing, and able to care for and band to support his wife. Exemptions support the child if physical control is from support of a lawful wife may be in obtained. the form of an order of a civil court of (6) Adopted children. The natural par- competent jurisdiction, relinquishment ents of an adopted child are relieved of by the wife or mutual agreement of the the obligation to support the child as 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

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application and serves no useful pur- ever is greater, up to a maximum of 1⁄3 pose, as such cases are thoroughly in- gross pay, per month. vestigated by the Navy Family Allow- (4) Both spouses in the armed forces. (i) ance Activity or Headquarters Marine No children of the marriage: no support Corps, which obtains necessary depend- obligation, regardless of any disparities ency affidavits directly from the par- in pay grade. ents. Any person, including a service (ii) All the children of the marriage member or dependent who obtains an in the custody of one spouse: interim allowance by fraudulent means is sub- support shall be either $200.00 per sup- ject to criminal prosecution. ported child, or BAH at the ‘‘with de- (8) Application of the rule based on pendents’’ rate, whichever is greater, up Robey v. United States 71 Ct. Cl. 561. De- to a maximum of 1⁄3 gross pay, per terminations that no dependency exists month. may be made in disputed cases—if a (iii) If custody of children of the mar- member does not contribute to the sup- riage is divided between the two par- port of spouse and child at least to the ents: interim support shall be either extent of: $200.00 per supported family member, (i) The full amount of his/her basic or the pro rata share of BAH at the allowance for quarters, or ‘‘with dependents’’ rate, whichever is (ii) An amount specified in a court greater, up to a maximum of 1⁄3 gross order or legal separation agreement, or pay, per month. (iii) An amount agreed to by the par- (5) Support amounts required pursu- ties as acceptable, adequate support, ant to this section will be paid until a whichever is lesser. Pertinent decisions court order or written agreement is ob- of the Court of Claims or Comptroller tained. General will be followed in determina- (6) Form and timing of financial sup- tions of dependency. port payments (c) Marine Corps members. (See MCO (i) Unless otherwise required by court 5800.16A, Marine Corps Manual for order or by written financial support Legal Administration agreement, a financial support pay- (LEGADMINMAN)) ment will be made in one of the fol- (1) In the absence of a court order or lowing ways: a written agreement between the par- (A) Check. ties as to an amount of support to be (B) Money order. furnished by the Marine, the following (C) Electronic transfer. shall apply to establish interim sup- (D) Voluntary allotment. port requirements. Note that gross pay (E) Cash. 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 366

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for compliance is terminated by a counseling center concerning such court of competent jurisdiction; a writ- issues. In addition, commanders should ten agreement between the persons exercise extreme caution in denying concerned; relinquishment by the dependent support in cases where the former spouse in writing; or the waiver servicemember is also a perpetrator of of the support requirement is granted spousal abuse.); or by the general court-martial (GCM) au- (D) The dependent is in jail. thority in writing. (vi) All command directed support (ii) If the decree is silent as to ali- waivers shall be in writing and a copy mony payments, it is presumed that shall be provided to the disenfranchised the court did not intend such pay- family member by the command. The ments. command shall also retain a copy. Al- (iii) When a valid court order exists leged verbal support waivers shall be and the Marine concerned is finan- given no force or effect. cially unable to comply, the Marine (vii) The natural parents of an adopt- will be advised that noncompliance ed child are relieved of the obligation with the terms of that order renders to support the child as such duty is im- the Marine liable to further civil court posed on the adoptive parent. A Marine action. who contemplates the adoption of a (iv) The duty of Marines to support child should be aware of the legal obli- their minor children is not terminated gation to provide continuous support, by desertion or other misconduct on once adopted, for such child during its the part of the Marine’s spouse. Simi- minority. larly, the obligation to support a child [44 FR 42190, July 19, 1979, as amended at 65 or children is not eliminated or re- FR 62617, Oct. 19, 2000] duced by the dissolution of the marriage through divorce, unless a judicial § 733.4 Complaints of nonsupport and decree or order specifically negates the insufficient support of dependents. obligation of child support. The fact (a) Upon receipt of a complaint alleg- that a divorce decree is silent relative ing that a member is not adequately to support of minor children, or does supporting his or her lawful dependents not mention a child or children, will (spouse or children), the member will not be interpreted by command au- be interviewed and informed of the pol- thorities as relieving the Marine of the icy of the Department of the Navy con- inherent obligation to provide support cerning support of dependents. In the for the child or children of the mar- absence of a determination by a civil riage. court or a mutual agreement of the (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; tion from the Navy or Marine Corps. (B) When it is apparent that the per- (1) Waiver of support of spouse. If the son requesting support for the child member feels that he or she has legiti- does not have physical custody of the mate grounds for a waiver of support child; for the spouse, the Director, Navy (C) When the Marine has been the Family Allowance Activity or in the victim of a substantiated instance of case of a member of the U.S. Marine physical abuse (this section applies Corps, the general court-martial con- only to a requirement to support a vening authority, may grant such a spouse, not dependent children. Com- waiver for support of a spouse (but not manding officers are strongly encour- children) on the basis of evidence of de- aged to consult the installation family sertion without cause or infidelity on

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the part of the spouse. The evidence the absence of a court order or agree- may consist of— ment, the appropriate support guide (i) U.S. Navy members. An affidavit of set forth above, will be a basis for con- the service member, relative, disin- sideration of disciplinary or adminis- terested person, public official, or law trative action which may result in the enforcement officer, and written ad- member’s separation from active serv- missions by the spouse contained in ice. letters written by that spouse to the (b) [Reserved] service member or other persons. How- ever, affidavits of the service member [44 FR 42190, July 19, 1979, as amended at 65 and relatives should be supported by FR 62618, Oct. 19, 2000] other corroborative evidence. All affi- § 733.5 Determination of paternity and davits must be based upon the personal support of illegitimate children. knowledge of the facts set forth; statements of hearsay, opinion, and conclu- (a) Illegitimate children. If the service sion are not acceptable as evidence. member desires marriage, leave for (ii) U.S. Marine Corps members. The this purpose is recommended whenever Marine’s commander may consider all consistent with the needs or exigencies pertinent facts and circumstances. The of the service. When the blood parents general court-martial convening au- of an illegitimate child marry, the thority my consider any reliable evi- child is considered to be legitimized by dence including, but not necessarily the marriage unless a court finds the limited to, the following: affidavits of child to be illegitimate. the Marine, relatives, or other wit- (b) Judicial order or decree of paternity nesses; admissions of the spouse, in- or support. Normally any order or de- cluding verbal and written statements cree which specifies the obligation to or letters written by the spouse to the render support of illegitimate children Marine or other persons; pertinent pho- will include within it a determination tographs or court orders; and admis- of paternity of such children; however, sions by the person with whom the some jurisdictions provide for deter- spouse allegedly had sexual liaisons. minations of the legal obligation to Witness statements should ordinarily support illegitimate children without a state facts that were personally ob- determination of paternity. Either served. Statements that merely state a type of order or decree falls within the conclusion without providing the per- scope of this paragraph. If a judicial sonal observations on which the con- order or decree of paternity or support clusion is based are generally is rendered by a United States or for- unpersuasive. eign court of competent jurisdiction (iii) The request for waiver of support against a member of the Navy or Ma- of a spouse should be submitted to the rine Corps on active duty, the member Director, Navy Family Allowance Ac- concerned will be informed of his moral tivity or in the case of a member of the and legal obligations as well as his U.S. Marine Corps, the general court- legal rights in the matter. The member martial convening authority, with a will be advised that he is expected to complete statement of the facts and render financial assistance to the child substantiating evidence, and comments regardless of any doubts of paternity or recommendations of the com- that the member may have. If the manding officer. court order or decree specifies an (2) Action. After a written complaint amount of support to be provided the that a member has failed or refused to member will be expected to comply furnish support for his or her spouse or with the terms of such decree or order. children has been received, and the If no amount is specified, support member has been counseled with re- should be rendered in accordance with gard to his/her rights and obligations such reasonable agreement as may be in the support matter, continued fail- made with the mother or legal guard- ure or refusal, without justification, to ian of the child or, in the absence of furnish support for dependents in ac- such agreement, in accordance with cordance with the provisions of a valid the applicable guide set forth above. If court order, written agreement, or, in the member refuses to comply with the

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terms of the court order, administra- (d) Members not on active duty. Allega- tive action will be taken as indicated tions of paternity against members of in § 733.4. the naval service who are not on active duty will be forwarded to the indi- (1) Court of competent jurisdiction. A vidual concerned in such a manner as court of competent jurisdiction is gen- to insure that the charges are delivered erally a court that has jurisdiction to the addressee only. The correspond- over the subject matter and the parties ence should be forwarded via the com- involved. As a general rule, the commandant of the naval district in which petency of the court to render the judi- the member resides. cial order or decree may be tested by (e) Former members. (1) If a certified the enforceability of the order or de- copy of a judicial order or decree of pa- cree. Normally, although not always, ternity or support duly rendered by a personal service of the court’s process United States or foreign court of com- on the member is considered essential. petent jurisdiction against a former With respect to a foreign judicial order member of the Navy or Marine Corps is or decree, the general rule is that submitted, his or her last-known ad- where the defendant was a citizen or dress will be furnished to the complain- subject of the foreign country in which ant with return of the correspondence the order or decree was issued, the and court order. The complainant will court may have acquired jurisdiction be informed of the date of discharge over the member by any mode of serv- and advised that the individual con- ice or notice recognized as sufficient by cerned is no longer a member of the the laws of that country. It should be Navy or Marine Corps in any capacity. noted, however, that an order or decree (2) Where there has been no court ad- against a citizen or permanent resident judication, the correspondence will be of another country, without personal returned to the complainant with an service or personal notice of the action appropriate letter stating that the in- to him or her, is null and void unless dividual is no longer a member of the the member voluntarily submitted to Navy or the Marine Corps in any capac- the jurisdiction by appearing and con- ity and giving the date of his or her testing the action. In the event there is discharge or final separation except doubt as to the competency of the that the last-known address of the court to enter the order or decree, the former member shall be furnished to question shall be referred to the Judge the claimant if the complaint against Advocate General. the former member is supported by a document which establishes that the (2) [Reserved] former member has made an admission or statement acknowledging paternity (c) Nonjudicial determination. In the or responsibility for support of a child absence of an adjudication of paternity before a court of competent jurisdic- or of a court-ordered obligation to fur- tion, administrative or executive agen- nish support, the member shall be pri- cy, or official authorized to receive it. vately consulted and asked, where ap- In cases where the complaint, along propriate, whether he or she admits ei- with the corroboration of a physician’s ther paternity of, or the legal obliga- affidavit, alleges and explains an un- tion to support, the child or expected usual medical situation which makes it child. If the answer is affirmative, the essential to obtain information from member shall be informed that he or the alleged father in order to protect she is expected to furnish support as the physical health of either the pro- set forth in paragraph (b) of this sec- spective mother or the unborn child, tion. Where paternity or the legal obli- the last-known address of the former gation to support is admitted by a member shall likewise be furnished to male member, such member should be the claimant. informed of his moral obligation to assist in the payment of prenatal ex- [44 FR 42190, July 19, 1979, as amended at 65 penses. FR 62618, Oct. 19, 2000]

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PART 734—GARNISHMENT OF PAY the pay of Department of the Navy per- OF NAVAL MILITARY AND CIVIL- sonnel shall be made on the following IAN PERSONNEL FOR COLLEC- designated officials in the manner and TION OF CHILD SUPPORT AND in the circumstances specified below: (1) Navy members. Process affecting ALIMONY the military pay of active duty, Re- serve, Fleet Reserve, or retired Navy Sec. members, wherever serving or residing, 734.1 Purpose. 734.2 Scope. may be served personnally or by reg- 734.3 Service of process. istered or certified mail, return receipt 734.4 Responsibilities. requested, on the Director, Navy Fam- 734.5 Administrative procedures. ily Allowance Activity, Anthony J. AUTHORITY: 42 U.S.C. 659 (Social Security Celebrezze Federal Building, Room 967, Act, sec. 459 added by Pub. L. 93–647, part B, Cleveland, Ohio 44199. sec. 101(a), 88 Stat. 2357, as amended by the (2) Marine Corps members. 42 U.S.C. 659 Tax Reform and Simplification Act of 1977, provides that pay of a servicemember, Pub. L. 95–30, title V, sec. 502, 91 Stat. 157). active duty or retired, shall be subject SOURCE: 44 FR 42193, July 19, 1979, unless to legal process brought for the en- otherwise noted. forcement against such member of legal obligations to provide child sup- § 734.1 Purpose. port or alimony payments. ‘‘Legal proc- This part prescribes responsibilities ess’’ means any writ, order, summons, and procedures applicable in the De- or other similar process in the nature partment of the Navy when processsing of garnishment. Upon receipt of such and honoring legal process brought for legal process, it will be forwarded di- the enforcement of legal obligations to rectly to: Defense Finance and Ac- provide child support or make alimony counting Service, Cleveland Center, payments under 42 U.S.C. 659 (Social Garnishment Operations Directorate Security Act, section 459 added by Pub. (DFAS–CL/L), P.O. Box 998002, Cleve- L. 93–647, part B, sec. 101(a), 88 Stat. land, Ohio 44199–8002. The letter of 2357, as amended by the Tax Reform transmittal will state the date of serv- and Simplification Act of 1977, Pub. L. ice and method by which service was 95–30, title V, sec. 502, 91 Stat. 157). made. Detailed instructions for disbursing officers and commanding offi- § 734.2 Scope. cers are contained in DFAS–KC 7220.31– The provisions of this part shall R, chapter 7. apply to legal process affecting any (3) Civilian Employees. Process affect- Federal pay administered by the De- ing the pay of active civilian employ- partment of the Navy and due and payees of the Department of the Navy: able to all categories of naval military (i) If currently employed at Navy or or civilian personnel including per- Marine Corps activities (including non- sonnel of Navy or Marine Corps nonappropriated-fund instrumentalities) appropriated-fund activities. This part or installations situated within the is not applicable to legal process af- territorial jurisdiction of the issuing fecting entitlements administered by court, such process may be served per- other agencies, such as civilian em- sonally, or by registered or certified ployees’ retirement benefits adminis- mail, return receipt requested, on the tered by the Office of Personnel Man- commanding officer or head of such ac- agement or compensation administered tivity or installation, or principal as- by the Veterans Administration. sistant specifically designated in writ- [44 FR 42193, July 19, 1979, as amended at 47 ing by such official. FR 28371, June 30, 1982] (ii) In other cases involving civilian employees, such process may be served § 734.3 Service of process. personally or by registered or certified (a) It is the policy of the Department mail, return receipt requested, in the of the Navy to respond promptly to manner indicated below: legal process addressed to naval offi- (A) If pertaining to civil service per- cials. Service of legal process affecting sonnel of the Navy or Marine Corps,

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such process may be served on the Di- § 734.4 Responsibilities. rector of Civilian Personnel Law, Of- (a) Designated officials. Within their fice of the General Counsel, Navy De- respective areas of cognizance as set partment, Washington, DC 20390. forth in § 734.3, the designated officials (B) If pertaining to non-civil service are responsible for the following func- civilian personnel of Navy Exchanges tions with regard to legal process: or related nonappropriated-fund instru- (1) Sending such notifications and di- mentalities administered by the Navy rections to the member concerned and Resale System Office, such process his or her commanding officer as may may be served on the Commanding Of- be required. ficer, Navy Resale System Office, At- (2) Obtaining or providing an appro- tention: Industrial Relations Officer, priate review by qualified legal coun- 29th Street and Third Avenue, Brook- sel. lyn, New York 11232. (3) Taking or directing actions, temporary and final, as are necessary to (C) If pertaining to non-civil service comply with 42 U.S.C. 659, as amended civilian personnel of Navy clubs, (see § 734.3(b)), the MCO 5800.16A, Ma- messes, or recreational facilities (non- rine Corps Manual for Legal Adminis- appropriated funds), such process may tration (LEGADMINMAN), Navy be served on the Chief of Naval Per- Comptroller Manual, and the court’s sonnel, Director, Recreational Services order in the case, and Division (Pers/NMPC–72), Washington, (4) Apprising the cognizant United DC 20370. States Attorney of the Department of (D) If pertaining to non-civil service the Navy’s disposition, as required, civilian personnel of other non- and, in coordination with the Judge appropriated-fund instrumentalities Advocate General, effecting liaison which fall outside the purview of the with the Department of Justice or Chief of Naval Personnel or the Com- United States Attorneys in instances manding Officer, Navy Resale Systems of noncompliance with process or other Office, such as locally established mo- circumstances requiring such action. rale, welfare, and other social and (b) Command responsibility. (1) The hobby clubs, such process may be Commanding officer of the member or served on the commanding officer of employee concerned shall, upon receipt of notification from the appropriate the activity concerned. designated official, ensure that the (E) If pertaining to non-civil service member or employee has received writ- civilian personnel of any Marine Corps ten notification of the pendency of the nonappropriated-fund instrumental- action and that the member or em- ities, such process may be served on ployee is afforded counseling con- the commanding officer of the activity cerning his or her obligations in the concerned. matter, and legal assistance if applica- (b) The Department of the Navy offi- ble, in dealing with the legal action to cials designated above are authorized affect his or her Federal pay. The com- to accept service of process within the manding officer shall comply with the 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 General is responsible for the following son offering such service shall be re- functions pertaining to legal process ferred to the appropriate official des- within the purview of this part: ignated in paragraph (a) of this section. (1) Providing overall technical direc- [44 FR 42193, July 19, 1979, as amended at 65 tion and guidance, as required, for all FR 62619, Oct. 19, 2000] Department of the Navy military and

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civilian attorneys engaged in reviewing distinct advantage should documentary such process or advising on its disposi- evidence, acceptable in all courts, be tion. required at any future time. Depart- (2) Ensuring, as Director, Naval ment of Defense (DOD) policy is that Legal Sevice, the availability of attor- military services will require their neys in Naval Legal Service Offices members to make official record of who are qualified to advise and assist births, deaths, marriages, etc., with the designated officials concerning the local civil authorities in whose juris- disposition of legal process, and diction such events occur. (3) Where required, ensuring effective liaison with the Department of Justice § 735.3 Action. or United States Attorneys. When a medical officer has knowl- [44 FR 42193, July 19, 1979, as amended at 65 edge of a birth or death occurring FR 62619, Oct. 19, 2000] under the following conditions, he or she shall refer the matter to the com- § 734.5 Administrative procedures. manding officer for assurance of com- The designated officials specified in pliance with DOD policy. § 734.3, shall, in consultation with the (a) Births. (1) In accordance with Judge Advocate General and Com- local health laws and regulations, the mander, Navy Accounting and Finance commanding officer of a naval hospital Center or the Commandant of the Ma- in the United States (U.S.) shall report rine Corps (FD), as appropriate, estab- to proper civil authorities all births, lish procedures for effectively exe- including stillbirths, occurring at the cuting their assigned responsibilities. hospital. Medical officers on ships and Implementing procedures shall con- aircraft operating within U.S. political form with 42 U.S.C., 659, as amended, boundaries, or at stations other than the MCO 5800.16A, Marine Corps Man- naval hospitals in the U.S., shall report ual for Legal Administration all births occurring within their profes- (LEGADMINMAN), the Navy Comp- sional cognizance. It shall be the duty troller Manual, and the Federal Per- of the medical officer to determine the sonnel Manual. requirements of local civil authorities [44 FR 42193, July 19, 1979, as amended at 65 for these reports. FR 62619, Oct. 19, 2000] (2) When births occur on aircraft or ships operating beyond U.S. political PART 735—REPORTING BIRTHS AND boundaries, the medical officer respon- DEATHS IN COOPERATION WITH sible for delivery shall make a report OTHER AGENCIES to the commanding officer, master of the ship, or to the officer in command Sec. of any aircraft, in every case to be re- 735.1 Purpose. corded in the ship or aircraft log. A re- 735.2 Background. port shall also be made to local civil 735.3 Action. authorities in the first port of entry if 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

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ports of entry and in major cities of (4) Part 138 of this title prescribes the United States. policy, responsibilities, and procedures (iii) For births occurring on courses on birth registration of infants born to out-bound and beyond the continental U.S. citizens, in military medical fa- limits of the U.S., report to the U.S. cilities outside the United States and consular representative at the next ap- its possessions. propriate foreign port. When the air- (b) Deaths. When a death occurs at a craft or ship does not enter a foreign naval activity in any State, Territory, port, procedures described in or insular possession of the United § 735.3(a)(2)(ii) shall be followed. States, the commanding officer or designated representative shall report the (3) Attention is invited to the fact death promptly to proper civil authori- that reports of birth may be forwarded ties in accordance with Naval Medical to the Bureau of Health Statistics, De- Command directives. If requested by partment of Health, Honolulu, Hawaii these civil authorities, the civil death for any births occurring on courses des- certificate may be prepared and signed tined for islands in the Pacific Ocean by the cognizant naval medical officer. over which the United States has juris- Local agreements concerning reporting diction as well as for those births and preparation of death certificates which are otherwise accepted by civil should be made between the naval fa- authorities for Hawaii. 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 to (5 U.S.C. 301, 40 U.S.C. 471–514) Buy Surplus Personal Property From [35 FR 10008, June 18, 1970, as amended at 41 The Department of Defense,’’ prepared FR 26008, June 24, 1976] by the Defense Reutilization and Mar- keting Office, Defense Logistics Agen- § 736.5 Disposition of real and per- cy, 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.

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PART 750—GENERAL CLAIMS 750.54 Payment of costs, settlements, and judgments related to certain medical or REGULATIONS legal malpractice claims. 750.55 Attorney’s fees. Subpart A—General Provisions for Claims 750.56–750.60 [Reserved]

Sec. Subpart D—Claims Not Cognizable Under 750.1 Scope of subpart A. Any Other Provision of Law 750.2 Investigations: In general. 750.3 Investigations: The report. 750.61 Scope of subpart D. 750.4 Claims: In general. 750.62 Statutory authority. 750.5 Claims: Proper claimants. 750.63 Definitions. 750.6 Claims: Presentment. 750.64 Claim procedures. 750.7 Claims: Action by receiving command. 750.65 Statute of limitations. 750.8 Claims: Responsibility of the adjudi- 750.66 Officials with authority to settle. cating authority. 750.67 Scope of liability. 750.9 Claims: Payments. 750.68 Claims not payable. 750.10 Claims: Settlement and release. 750.69 Measure of damages. 750.11 Claims: Denial. 750.12 Claims: Action when suit filed. AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 939, 5013, 750.13 Claims: Single service responsibility. and 5148; E.O. 11476, 3 CFR, 1969 Comp., p. 132; 32 CFR 700.206 and 700.1202. 750.14–750.20 [Reserved] SOURCE: 57 FR 4722, Feb. 7, 1992, unless oth- Subpart B—Federal Tort Claims Act erwise noted. 750.21 Scope of subpart B. 750.22 Exclusiveness of remedy. Subpart A—General Provisions for 750.23 Definitions. Claims 750.24 Statutory/regulatory authority. 750.25 Scope of liability. § 750.1 Scope of subpart A. 750.26 The administrative claim. (a) General. (1) The Judge Advocate 750.27 Information and supporting documentation. General is responsible for the adminis- 750.28 Amendment of the claim. tration and supervision of the resolu- 750.29 Investigation and examination. tion of claims arising under the Fed- 750.30 Denial of the claim. eral Tort Claims Act (subpart B of this 750.31 Reconsideration. part), the Military Claims Act (subpart 750.32 Suits under the Federal Tort Claims C of this part), the Nonscope Claims Act (FTCA). Act (subpart D of this part), the Per- 750.33 Damages. sonnel Claims Act (part 751 of this 750.34 Settlement and payment. chapter), the Foreign Claims Act, the 750.35 Attorney’s fees. 750.36 Time limitations. International Agreements Claims Act 750.37–750.40 [Reserved] pertaining to cost sharing of claims pursuant to international agreements, Subpart C—Military Claims Act the Federal Claims Collection Act of 1966 (subpart A of part 757 of this chap- 750.41 Scope of subpart C. ter), the Medical Care Recovery Act 750.42 Statutory authority. (subpart B of part 757 of this chapter), 750.43 Claims payable. 750.44 Claims not payable. and postal claims. 750.45 Filing claim. (2) The Deputy Assistant Judge Ad- 750.46 Applicable law. vocate General (Claims and Tort Liti- 750.47 Measure of damages for property gation) is the functional manager of claims. the Navy claims system established to 750.48 Measure of damages in injury or evaluate, adjudicate, and provide liti- death cases. gation support for claims arising under 750.49 Delegations of adjudicating author- the acts listed above and is responsible ity. 750.50 Advance payments. to the Judge Advocate General for the 750.51 Final disposition. management of that system. The 750.52 Appeal. claims system consists of field activi- 750.53 Cross-servicing. ties delegated claims processing and

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adjudicating authority and the attor- against the United States. When an in- neys and support personnel assigned to cident involves an actual or potential the Claims and Tort Litigation Divi- claim against the United States for sion of the Office of the Judge Advo- property damage only and the total cate General. For economy of lan- amount likely to be paid does not ex- guage, Naval Legal Service Offices and ceed $5,000.00, an abbreviated investiga- Naval Legal Service Office Detach- tive report may be submitted. Where ments are referred to as Naval Legal this monetary figure may be exceeded, Service Command Activities. but the circumstances indicate an ab- (3) Commanding officers of com- breviated report may be adequate to mands receiving claims are responsible preserve the facts and protect the Gov- for complying with the guidance on in- ernment’s claims interests, approval to vestigations in §§ 750.2 and 750.3 and the submit a limited investigative report guidance on handling and forwarding may be sought from the nearest Naval claims found in § 750.5. Legal Service Command activity. (b) This subpart A delineates general (d) Developing the facts. Any inves- investigative and claims-processing re- tigation convened for claims purposes quirements to be followed in the han- must focus on developing the facts of dling of all incidents and claims within the incident, i.e., the who, what, where, the provisions of this part. Where the when, why, and how of the matter. general provisions of this subpart A Opinions on the possible liability of the conflict with the specific provisions of United States under any of the claims any subsequent subpart of this part, statutes listed above shall not be ex- the specific provisions govern. pressed. Early and continuous consultation with claims attorneys at § 750.2 Investigations: In general. Naval Legal Service Command activi- (a) Conducting the investigation. The ties is essential to ensure the timely command where the incident giving development of all necessary facts, the rise to the claim is alleged to have hap- identification and preservation of rel- pened is responsible for conducting an evant evidence, and to void the need investigation in accordance with this for supplemental inquiries. part. (e) Attorney work product. (1) The con- (b) Thorough investigation. Every inci- vening order and the preliminary state- dent that may result in a claim against ment of an investigative report pre- or in favor of the United States shall pared to inquire into the facts of an in- be promptly and thoroughly inves- cident giving or likely to give rise to a tigated under this part. Investigations claim against the United States shall convened for claims purposes are suffi- include the following: ciently complex that they should be This investigation has been convened and performed with the assistance and conducted, and this report prepared, in con- under the supervision of a judge advo- templation of claims adjudication and litiga- cate or other attorney. Where the com- tion and for the express purpose of assisting mand has an attorney assigned, he attorneys representing the interests of the shall be involved in every aspect of the United States. proceedings. When an attorney is not (2) When an investigation is prepared assigned to the investigating com- by or at the direction of an attorney mand, consultation shall be sought representing the Department of the from the appropriate Naval Legal Serv- Navy and is prepared in reasonable an- ice Command activity. ticipation of litigation, it is exempt (c) Recovery barred. Even when recov- from mandatory disclosure under the ery may be barred by statute or case Freedom of Information Act exemption law, all deaths, serious injuries, and (b)(5) and is normally privileged from substantial losses to property that are discovery in litigation under the attor- likely to give rise to claims must be in- ney work product privilege. 5 U.S.C. vestigated while the evidence is avail- 552(b)(5). Unless an attorney prepares able. Claims against persons in the the report or personally directs its naval service arising from the perform- preparation, the investigation may not ance of their official duties shall be in- be privileged, even if it was prepared in vestigated as though they were claims reasonable anticipation of litigation.

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(f) Advance copy. An advance copy of claim and to advise such personnel any investigation conducted because a where they should file their claim. claim has been, or is likely to be, sub- (c) Content of the report. The written mitted shall be forwarded to the Naval report of investigation shall contain Legal Service Command activity information answering the questions claims office responsible for the area mentioned in § 750.3(a) and, depending where the incident giving rise to the on the nature of the incident, will in- claim occurred. clude the following: (1) Date, time, and exact place the § 750.3 Investigations: The report. accident or incident occurred, speci- (a) Purpose. The purpose of investiga- fying the highway, street, or road; tions into claims incidents is to gather (2) A concise but complete statement all relevant information about the in- of the incident with reference to phys- cident so adjudicating officers can ei- ical facts observed and any statements ther pay or deny the claim. The essen- by the personnel involved; tial task of the investigating officer is (3) Names, grades, organizations, and to answer the questions of who, what, addresses of military personnel and ci- where, when, why and how? The Navy’s vilian witnesses; best interests are served when the in- (4) Opinions as to whether military vestigation is thorough and is per- or civilian employees involved in the formed in a timely manner so the incident were acting within the scope claimant can be advised promptly of of their duties at the time; the action on the claim. (5) Description of the Government property involved in the incident and (b) Duties of the investigating officer. It the nature of any damage it sustained; is the investigating officer’s responsi- and, bility: (6) Descriptions of all private prop- (1) To interview all witnesses to the erty involved. incident and prepare summaries of (d) Immediate report of certain events. their comments. Obtaining signed The Navy or Marine Corps activity statements of Government witnesses is most directly involved in the incident not necessary. Summaries of the wit- shall notify the Judge Advocate Gen- nesses’ remarks prepared by the inves- eral and the appropriate adjudicating tigating officer are quite sufficient and authority immediately by message, generally expedite the gathering of in- electronic mail, or telephone in any of formation. On the other hand, written the following circumstances: signed statements should be obtained (1) Claims or possible claims arising from the claimant, wherever possible; out of a major disaster or out of an in- (2) To inspect the property alleged to cident giving rise to five or more pos- have been damaged by the action of sible death or serious injury claims. Government personnel; (2) Upon filing of a claim that could (3) To determine the nature, extent, result in litigation that would involve and amount of any damage, and to ob- a new precedent or point of law. tain pertinent repair bills or estimates (3) Claims or possible claims that in- and medical, hospital, and associated volve or are likely to involve an agency bills necessary to permit an evaluation other than the Department of the of the claimant’s loss; Navy. (4) To obtain maintenance records of (e) Request for assistance. When an in- the Navy motor vehicle, plane, or other cident occurs at a place where the piece of equipment involved in the naval service does not have an installa- claim; tion or a unit conveniently located for (5) To reduce to writing and incor- conducting an investigation, the com- porate into an appropriate investiga- manding officer or officer in charge tive report all pertinent statements, with responsibility for performing the summaries, exhibits, and other evi- investigation may request assistance dence considered by the investigator in from the commanding officer or officer arriving at his conclusions; and, in charge of any other organization of (6) To furnish claim forms to any per- the Department of Defense. Likewise, son expressing an interest in filing a if a commanding officer or officer in

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charge of any other organization of the prognosis, and the period of hos- Department of Defense requests such pitalization or incapacity. assistance from a naval commanding (2) A Privacy Act statement for each officer or officer in charge, the latter person who was asked to furnish per- should normally comply. If a complete sonal information shall be provided. investigation is requested it will be Social Security numbers of military performed in compliance with the regu- personnel and civilian employees of the lations of the requested service. These U.S. Government should be included in investigations are normally conducted the report but should be obtained from without reimbursement for per diem, available records, not from the indi- mileage, or other expenses incurred by vidual. the investigating unit or installation. (3) Names, addresses, and ages of all (f) Report of Motor Vehicle Accident, civilians or military personnel injured Standard Form 91. RCS OPNAV 5100–6. or killed; names of insurance compa- The operator of any Government motor nies; information on the nature and ex- vehicle involved in an accident of any tent of injuries, degree of permanent sort shall be responsible for making an disability, prognosis, period of hos- immediate report on the Operator’s Re- pitalization, name and address of at- port of Motor Vehicle Accident, Stand- tending physician and hospital, and ard Form 91. This operator’s report amount of medical, hospital, and burial shall be made even though the operator expenses actually incurred; occupation of the other vehicle, or any other per- and wage or salary of civilians injured son involved, states that no claim will or killed; and names, addresses, ages, be filed, or the only vehicles involved relationship, and extent of dependency are Government owned. An accident of survivors of any such person fatally shall be reported by the operator re- injured should be included. gardless of who was injured, what prop- (4) If straying animals are involved, a erty was damaged, or who was respon- statement as to whether the jurisdic- sible. The operator’s report shall be re- tion has an ‘‘open range law’’ and, if so, reference to such statute. ferred to the investigating officer, who (5) A statement as to whether any shall be responsible for examining it person involved violated any State or for completeness and accuracy and who Federal statute, local ordinance, or in- shall file it for future reference or for stallation regulation and, if so, in what attachment to any subsequent inves- respect. The statute, ordinance, or reg- tigative report of the accident. ulation should be set out in full. (g) Priority of the investigation. To en- (6) A statement on whether a police sure prompt investigation of every in- investigation was made. A copy of the cident while witnesses are available police report of investigation should be and before damage has been repaired, included if available. the duties of an investigating officer (7) A statement on whether arrests shall ordinarily have priority over any were made or charges preferred, and other assignments he may have. the result of any trial or hearing in (h) Contents of the report of investiga- civil or military courts. tion. The report should include the fol- (i) Expert opinions. In appropriate lowing items in addition to the require- cases the opinion of an expert may be ments in § 750.3(c): required to evaluate the extent of dam- (1) If pertinent to the investigation, age to a potential claimant’s property. the investigating officer should obtain In such cases the investigating officer a statement from claimant’s employer should consult Navy-employed experts, showing claimant’s occupation, wage experts employed by other departments or salary, and time lost from work as a of the U.S. Government, or civilian ex- result of the incident. In case of per- perts to obtain a competent assessment sonal injury, the investigating officer of claimant’s damages or otherwise to should ask claimant to submit a writ- protect the Government’s interest. Any ten statement from the attending phy- cost involved with obtaining the opin- sician setting forth the nature and ex- ion of an expert not employed by the tent of injury and treatment, the dura- Navy shall be borne by the command tion and extent of any disability, the conducting the investigation. Any cost

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involved in obtaining the opinion of a § 750.34(c)(2)(ii) has the responsibility to Navy-employed expert shall be borne ensure that remedial action is taken to by the command to which the expert is rectify noncompliance indicated in the attached. Medical experts shall be em- investigative report prior to for- ployed only after consultation with the warding the report to the Judge Advo- Chief, Bureau of Medicine and Surgery. cate General. (j) Action by command initiating the investigation and subsequent reviewing au- § 750.4 Claims: In general. thorities. (1) The command initiating (a) Claims against the United States. the investigation in accordance with Claims against the United States shall § 750.3 or § 750.5 shall review the report receive prompt and professional dis- of investigation. If additional inves- position. Every effort will be made to tigation is required or omissions or ensure an investigation is thoroughly other deficiencies are noted, the inves- and accurately completed, the claim- tigation should be promptly returned ant’s allegations evaluated promptly, with an endorsement indicating that a and where liability is established, a supplemental investigative report will check issued as quickly as possible to be submitted. If the original or supple- prevent further harm to a meritorious mental report is in order, it shall be claimant. Similarly, claims not payble forwarded by endorsement, with any will be processed promptly and the pertinent comments and recommenda- claimant advised of the reasons for the tions. An advance copy of the inves- denial. tigation shall be forwarded to the Naval Legal Service Command activity (b) Claims in favor of the United States. having territorial responsibility for the Potential claims in favor of the United area where the incident giving rise to States will be critically evaluated and, the claim occurred as indicated in where appropriate, promptly asserted § 750.34(c)(2)(ii). and aggressively pursued. (2) A reviewing authority may direct (c) Assistance to Claimants. Claimants that additional investigation be con- or potential claimants who inquire ducted, if considered necessary. The about their rights or the procedures to initial investigation should not be re- be followed in the resolution of their turned for such additional investiga- claims will be referred to a claims offi- tion, but should be forwarded by an en- cer. The officer will provide claim dorsement indicating that the supple- forms, advise where the forms should mental material will be submitted. The be filed, and inform the requester of report shall be endorsed and forwarded the type of subtantiating information to the next-level authority with appro- required. Claims officers may provide priate recommendations including an advice on the claims process but shall assessment of the responsibility for the not provide advice or opinions about incident and a recommendation as to the merits or the wisdom of filing a the disposition of any claim that may particular claim. While claims officers subsequently be filed. If a reviewing have a responsiblity to provide general authority may be an adjudicating au- information about claims, they must thority for a claim subsequently filed, consider 18 U.S.C. 205 which makes it a one copy of the report shall be retained crime for an officer or employee of the by such authority for at least 2 years United States to act as an agent or an after the incident. attorney in the prosecution of any (3) It is essential that each investiga- claim against the United States. tive report reflect that a good faith effort was made to comply with the Pri- § 750.5 Claims: Proper claimants. vacy Act of 1974 (5 U.S.C. 552a) as im- (a) Damage to property cases. A claim plemented by 32 CFR part 701, subpart for damage to, or destruction or loss of, F. Any indication of noncompliance property shall be presented by the shall be explained either in the pre- owner of the property or a duly author- liminary statement or the forwarding ized agent or legal representative. endorsements and, when required, cor- ‘‘Owner’’ includes a bailee, lessee, or rected. The adjudicating Naval Legal mortgagor, but does not include a Service Command activity listed in mortgagee, conditional vendor, or

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other person having title for security Personnel Claims Act shall be sub- purposes only. mitted on DD Form 1842. The claim and (b) Personal injury and death cases. A all other papers requiring the signature claim for personal injury shall be pre- of the claimant shall be signed by the sented by the person injured or a duly claimant personally or by a duly au- authorized agent or legal representa- thorized agent. If signed by an agent or tive, or, in the case of death, by the legal representative, the claim shall in- properly appointed legal representative dicate the title or capacity of the per- of the deceased’s estate or survivor son signing and be accompanied by evi- where authorized by State law. dence of appointment. When more than (c) Subrogation. A subrogor and a one person has a claim arising from the subrogee may file claims jointly or sep- same incident, each person shall file a arately. When separate claims are filed claim separately. A subrogor and a and each claim individually is within subrogee may file a claim jointly or local adjudicating authority limits, separately. they may be processed locally, even if the aggregate of such claims exceeds (b) To whom submitted. Claims under local monetary jurisdiction, if they do the Federal Tort and Military Claims not exceed the sum for which approval Acts shall be submitted to the com- of the Department of Justice is re- manding officer of the Navy or Marine quired (currently, $100,000.00) under the Corps activity involved, if known. Oth- Federal Tort Claims Act. Where they erwise, they shall be submitted to the exceed this amount, they shall be re- commanding officer of any Navy or ferred to the Claims and Tort Litiga- Marine Corps activity, preferably the tion Division. one nearest to where the accident oc- (d) Limitation on transfers and assign- curred, the local Naval Legal Service ment. All transfers and assignments Command activity, or to the Judge Ad- made of any claim upon the United vocate General, 200 Stovall Street, Al- States, and all powers of attorney, or- exandria, VA 22332–2400. ders, or other authorities for receiving payment of any such claim, are abso- § 750.7 Claims: Action by receiving lutely null and void unless they are command. made after the allowance of such a (a) Record date of receipt. The first claim, the ascertainment of the command receiving a claim shall amount due, and the issuing of a war- stamp or mark the date of recipt on rant for the payment thereof. 31 U.S.C. the letter or claim form. The envelope 203. This statutory provision does not in which the claim was received shall apply to the assignment of a claim by be preserved. operation of law, as in the case of a re- (b) Determine the military activity in- ceiver or trustee in bankruptcy ap- volved. The receiving command shall pointed for an individual, firm, or corporation, or the case of an adminis- determine the Navy or Marine Corps trator or executor of the estate of a activity most directly involved with person deceased, or an insurer sub- the claim—usually the command where rogated to the rights of the insured. the incident is alleged to have occurred—and forward a copy of the § 750.6 Claims: Presentment. claim to that activity. The original (a) Written demand and Standard Form claim (and the transmittal letter, if a 95. A claim shall be submitted by pre- copy is forwarded to a more appro- senting a written statement with the priate activity) should immediately be amount of the claim expressed in a sum sent to the servicing Naval Legal Serv- certain, and, as far as possible, describ- ice Command activity claims office. ing the detailed facts and cir- (c) Initiate an investigation. An inves- cumstances surrounding the incident tigation under this part shall be com- from which the claim arose. The Claim menced immediately by the command for Damage or Injury, Standard Form most directly involved with the claim. 95, shall be used whenever practical for Once the investigation has been com- claims under the Federal Tort and pleted, an advance copy shall be for- Military Claims Acts. Claims under the warded by the convening authority to

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the Naval Legal Service Command ac- the adjudicating authority limits es- tivity providing claims support. Wait- tablished in this instruction, the claim ing until endorsements have been ob- shall be referred promptly to the Judge tained before providing a copy of the Advocate General. The following mate- investigation to the cognizant claims rials shall be forwarded with the claim: adjudicating authority is neither re- (i) An official endorsement or letter quired nor desirable. The facts of the of transmittal containing a rec- incident must be made known to cog- ommendation on resolution of the nizant claims personnel as soon as pos- claim. sible. (ii) A memorandum of law containing a review of applicable law, an evalua- § 750.8 Claims: Responsibility of the tion of liability, and recommendation adjudicating authority. on the settlement value of the case. (a) Reviewing prior actions. The adju- This memorandum should concentrate dicating authority determines whether on the unusual aspects of applicable an adequate investigation has been law, chronicle the attempts to resolve conducted, whether the initial receipt the claim at the local level, provide in- date is recorded on the face of the formation about the availability of claim, and whether all holders of the witnesses, and outline any other infor- investigation, if completed, are advised mation material to a resolution of the of the receipt of the claim. claim, i.e. prior dealings with the (b) Determining sufficiency of the claim. claimant’s attorney, local procedural The claim should be reviewed and a de- rules, or peculiarities that may make termination of its sufficiency made. If trial difficult. The memorandum the claim is not sufficient as received, should not repeat information readily it shall be returned to the party who obtained from the investigative report submitted it along with an explanation and should be tailored to the com- of the insufficiency. This does not con- plexity of the issues presented. An ab- stitute denial of the claim. The claim breviated memorandum should be sub- shall not be considered ‘‘presented’’ mitted if the claim is statutorily until it is received in proper form. barred because of the statute of limita- (c) Adjudicating the claim. (1) The ad- tions or Federal Employees’ Compensa- judicating authority shall evaluate and tion Act or otherwise barred because of either approve or disapprove all claims the Feres doctrine. within its authority, except where the (iii) The original investigative report payment of multiple Federal Torts and all allied papers. Claims Act claims arising from the (iv) The original claim filed by the same incident will exceed $100,000.00 in claimant (and the envelope in which it the aggregate and thereby require ap- arrived, if preserved). The adjudicating proval of the Department of Justice. In authority shall retain at least one copy this latter instance, the claims and the of all papers forwarded to the Judge investigative report shall be forwarded Advocate General under this section. to the Judge Advocate General for ac- (d) Preparing litigation reports. A liti- tion. gation report is prepared when a law- (2) The adjudicating authority shall suit is filed and a complaint received. evaluate and, where liability is estab- The report is addressed to the Depart- lished, attempt to settle claims for ment of Justice official or the U.S. At- amounts within its adjudicating au- torney having cognizance of the mat- thority. Permission of higher authority ter. The report is a narrative summary to conduct settlement negotiations to of the facts upon which the suit is effect such settlements is not nec- based and has as enclosures the claims essary. Negotiation at settlement fig- file and a memorandum of law on the ures above the adjudicating authority’s issues presented. payment limits may be attempted if (1) When the claim has been for- the claimant is informed that the final warded to the Judge Advocate General decision on the claim will be made at a prior to the initiation of a suit, litiga- higher level. tion reports originate in the Claims (3) If a claim cannot be approved, set- and Tort Litigation Division of the Of- tled, compromised, or denied within fice of the Judge Advocate General.

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(2) When, however, the claim has not tive settlement of Federal tort claims been forwarded and is still under the or the civil action provisions of 28 cognizance of the Naval Legal Service U.S.C. 1346(b) also constitutes a com- Command claims office, that command plete release of any claim against any will ordinarily be required to prepare employee of the Government whose act and forward the litigation report to the or omission gave rise to the claim. requesting organization. In this instance, the litigation report should be § 750.11 Claims: Denial. sent directly to the cognizant Depart- A final denial of any claim within ment of Justice official or U.S. Attor- this chapter shall be in writing and ney with a copy of the report and all sent to the claimant, his attorney, or enclosures to the Judge Advocate Gen- legal representative by certified or reg- eral. istered mail with return receipt requested. The denial notification shall § 750.9 Claims: Payments. include a statement of the reason or Claims approved for payment shall be reasons for the denial. The notification expeditiously forwarded to the dis- shall include a statement that the bursing office or the General Account- claimant may: ing Office depending on the claims act (a) If the claim is cognizable under involved and the amount of the re- the Federal Tort Claims Act, file suit quested payment. Generally, payment in the appropriate United States Dis- of a Federal tort claim above $2,500.00 trict Court within 6 months of the date requires submission of the payment of the denial notification. voucher to the General Accounting Of- (b) If the claim is cognizable under fice. All other field authorized pay- the Military Claims Act, appeal in ment vouchers are submitted directly writing to the Secretary of the Navy to the servicing disbursing office for within 30 days of the receipt of the de- payment. nial notification. The notice of denial shall inform the claimant or his rep- § 750.10 Claims: Settlement and re- resentative that suit is not possible lease. under the Act. (a) Fully and partially approved claims. When a claim is approved for payment § 750.12 Claims: Action when suit filed. in the amount claimed, no settlement (a) Action required of any Navy official agreement is necessary. When a federal receiving notice of suit. The commence- tort, military, or non-scope claim is ment, under the civil action provisions approved for payment in a lesser of the Federal Tort Claims Act (28 amount than that claimed, the claim- U.S.C. 1346(b)), of any action against ant must indicate in writing a willing- the United States and involving the ness to accept the offered amount in Navy, that comes to the attention of full settlement and final satisfaction of any official in connection with his offi- the claim. In the latter instance, no cial duties, shall be reported imme- payment will be made until a signed diately to the commanding officer of settlement agreement has been re- the servicing Naval Legal Service Com- ceived. mand activity who shall take any nec- (b) Release. (1) Acceptance by the essary action and provide prompt noti- claimant of an award or settlement fication to the Judge Advocate Gen- made by the Secretary of the Navy or eral. The commencement of a civil ac- designees, or the Attorney General or tion against an employee of the Navy designees, is final upon acceptance by for actions arising from the perform- the claimant. Acceptance is a complete ance of official duties shall be reported release by claimant of any claim in the same manner. against the United States by reason of (b) Steps upon commencement of civil the same subject manner. Claimant’s action. Upon receipt by the Judge Ad- acceptance of an advance payment does vocate General of notice from the De- not have the same effect. partment of Justice or other source (2) The claimant’s acceptance of an that a civil action involving the Navy award or settlement made under the has been initiated under the civil ac- provisions governing the administration provisions of the Federal Tort

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Claims Act, and there being no inves- (1) Department of the Army: Austria, tigative report available at the head- Belgium, El Salvador, France, the Fed- quarters, a request shall be made to eral Republic of Germany, Grenada, the commanding officer of the appro- Honduras, Korea, the Marshall Islands, priate Naval Legal Service Command and Switzerland and as the Receiving activity for an investigative report State Office in the United States under into the incident. If there is not a com- 10 U.S.C. 2734a and 2734b and the NATO pleted investigation, the request shall Status of Forces Agreement, and other be forwarded to the appropriate naval Status of Forces Agreements with activity to convene and complete such countries not covered by the NATO a report. The commanding officer of agreement. the Naval Legal Service Command ac- (2) Department of the Navy: Bahrain, tivity shall determine whether an ad- Iceland, Israel, Italy, Portugal, and Tu- ministrative claim had been filed and, nisia. if available information indicates none (3) Department of the Air Force: Aus- had, advise the Office of the Judge Ad- tralia, Azores, Canada, Cyprus, Den- vocate General (Claims and Tort Liti- mark, Greece, India, Japan, Luxem- gation Division) immediately. bourg, Morocco, Nepal, Netherlands, Norway, Pakistan, Saudi Arabia, § 750.13 Claims: Single service respon- Spain, Turkey, the United Kingdom, sibility. Egypt, Oman, and claims involving, or (a) The Department of Defense has generated by, the U.S. Central Com- assigned single-service responsibility mand (CENTCOM) and the U.S. Special for processing claims in foreign coun- Operations Command (USSOC), that tries under the following acts. The arise in countries not specifically as- service and country assignments are in signed to the Departments of the Army DODDIR 5515.8 of 9 June 1990.1 and the Navy. (1) Foreign Claims Act (10 U.S.C. (c) U.S. forces afloat cases under 2734); $2,500.00. Notwithstanding the single (2) Military Claims Act (10 U.S.C. service assignments above, the Navy 2733); may settle claims under $2,500.00 (3) International Agreements Claims caused by personnel not acting within Act (10 U.S.C. 2734a and b), on the pro- the scope of employment and arising in rata cost sharing of claims pursuant to foreign ports visited by U.S. forces international agreement; afloat and may, subject to the concur- (4) NATO Status of Forces Agree- rence of the authorities of the receiv- ment (4 UST 1792, TIAS 2846) and other ing state concerned, process such similar agreements; claims. (5) Medical Care Recovery Act (42 U.S.C. 2651–2653) claims for reimburse- §§ 750.14–750.20 [Reserved] ment for medical care furnished by the United States; Subpart B—Federal Tort Claims (6) Nonscope Claims Act (10 U.S.C. Act 2737), claims not cognizable under any other provision of law; § 750.21 Scope of subpart B. (7) Federal Claims Collection Act of This subpart provides information re- 1966 (31 U.S.C. 3701); the Act of June garding the administrative processing 1921 (31 U.S.C. 3702), claims and de- and consideration of claims against the mands by the U.S. Government; and United States under the FTCA. The (8) Public Law 87–212 (10 U.S.C. 2736), FTCA is a limited waiver of sovereign advance or emergency payments. immunity. Under the FTCA, an indi- (b) Single service assignments for vidual can seek money damages for processing claims mentioned above are personal injury, death, or property as follows: damage caused by the negligent or wrongful act or omission of a Federal 1 Copies may be obtained if needed, from employee acting within the scope of Commanding Officer, U.S. Naval Publica- employment. The FTCA also provides tions and Forms Center, 5801 Tabor Avenue, for compensation for injuries caused by Philadelphia, PA 19120. certain intentional, wrongful conduct.

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The liability of the United States is de- searches, to seize evidence, or to make termined in accordance with the law of arrests for violations of Federal law. 28 the State where the act or omission U.S.C. 2680(h). occured. (c) Government employees—(1) General. ‘‘Employee of the Government,’’ defined § 750.22 Exclusiveness of remedy. at 28 U.S.C. 2671, includes officers or (a) The Federal Employees Liability employees of any Federal agency, Reform and Tort Compensation Act of members of the U.S. military or naval 1988, Public Law 100–694 (amending 28 forces, and persons acting on behalf of U.S.C. 2679(b) and 2679(d)), provides a Federal agency in an official capac- that the exclusive remedy for damage ity. or loss of property, or personal injury (2) Government contractors. Govern- or death arising from the negligent or ment (also referred to as independent) wrongful acts or omissions of all Fed- contractors, are those individuals or eral employees, acting within the scope businesses who enter into contracts of their employment, will be against with the United States to provide the United States. This immunity from goods or services. Because the defini- personal liability does not extend to al- tion of ‘‘Federal agency,’’ found at 28 legations of constitutional torts, nor to U.S.C. 2671, specifically excludes ‘‘any allegations of violations of statutes contractor with the United States,’’ the specifically authorizing suits against United States is generally not liable individuals. for the negligence of Government con- (b) Other statutory provisions create tractors. There are, however, three immunity from personal liability for limited exceptions to the general rule, specific categories of Federal employ- under which a cause of action against ees whose conduct, within the scope of the United States has been found to their employment, gives rise to claims exist in some jurisdictions. They are: against the Government. Department of Defense health care providers are (i) Where the thing or service con- specifically protected by 10 U.S.C. 1089, tracted for is deemed to be an ‘‘inher- the Gonzalez Act. DOD attorneys are ently dangerous activity’’; specifically protected by 10 U.S.C. 1054. (ii) where a nondelegable duty in the employer has been created by law; or, § 750.23 Definitions. (iii) where the employer retains con- (a) Negligent conduct. Generally, neg- trol over certain aspects of the con- ligence is the failure to exercise that tract and fails to discharge that con- degree of care, skill, or diligence a rea- trol in a reasonable manner. sonable person would exercise under (3) Employees of nonappropriated-fund similar circumstances. Negligent con- activities. Nonappropriated-fund activi- duct can result from either an act or a ties are entities established and oper- failure to act. The law of the place ated for the benefit of military mem- where the conduct occurred will deter- bers and their dependents, and have mine whether a cause of action lies been judicially determined to be ‘‘arms’’ against the Government. 28 U.S.C. of the Federal government. These enti- 1346(b) and 2674. ties operate from self-generated funds, (b) Intentional torts. Although any rather than from funds appropriated by employee who commits an intentional Congress. Examples include Navy and tort is normally considered to be act- Marine Corps Exchanges, officer or ening outside the scope of employment, listed clubs, and recreational services the FTCA does allow claimants to seek activities. A claim arising out of the compensation for injuries arising out act or omission of an employee of a of the intentional torts of assault, bat- nonappropriated-fund activity not lo- tery, false imprisonment, false arrest, cated in a foreign country, acting with- abuse of process, and malicious pros- in the scope of employment, is an act ecution, if committed by a Federal in- or omission committed by a Federal vestigative or law enforcement officer. employee and will be handled in ac- An ‘‘investigative or law enforcement cordance with the FTCA. officer’’ is any officer of the United (d) Scope of employment. ‘‘Scope of em- States empowered by law to execute ployment’’ is defined by the law of 394

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respondeat superior (master and serv- forces, or the Coast Guard, during time ant) of the place where the act or omis- of war. sion occurred. Although 28 U.S.C. 2671 (2) Additional claims not payable. Al- states that acting within the scope of though not expressly statutorily ex- employment means acting in the line cepted, the following types of claims of duty, the converse is not always shall not be paid under the FTCA: true. For administrative purposes, a (i) A claim for personal injury or Government employee may be found death of a member of the armed forces ‘‘in the line of duty,’’ yet not meet the of the United States incurred incident criteria for a finding of ‘‘within the to military service or duty. Compare scope of employment’’ under the law of United States v. Johnson, 481 U.S. 681 the place where the act or omission oc- (1987); Feres v. United States, 340 U.S. 135 curred. (1950) with Brooks v. United States, 337 U.S. 49 (1949); § 750.24 Statutory/regulatory author- (ii) Any claim by military personnel ity. or civilian employees of the Navy, paid The statutory provisions of the Fed- from appropriated funds, for personal eral Tort Claims Act (FTCA) are at 28 property damage occurring incident to U.S.C. 1346(b), 2671–2672, and 2674–2680. service or Federal employment, cog- The Attorney General of the United nizable under 31 U.S.C. 3721 and the ap- States has issued regulations on ad- plicable Personnel Claims Regulations, ministrative claims filed under the 32 CFR part 751; FTCA at 28 CFR part 14. If the provi- (iii) Any claim by employees of non- sions of this section and the Attorney appropriated-fund activities for per- General’s regulations conflict, the At- sonal property damage occurring inci- torney General’s regulations prevail. dent to Federal employment. These claims will be processed as indicated in § 750.25 Scope of liability. 32 CFR part 756; (a) Territorial limitations. The FTCA (iv) Any claim for personal injury or does not apply to any claim arising in death covered by the Federal Employ- a foreign country. 28 U.S.C. 2680(k) and ees’ Compensation Act (5 U.S.C. 8116c); Beattie v. United States, 756 F.2d 91 (D.C. (v) Any claim for personal injury or Cir. 1984). death covered by the Longshore and (b) Exclusions from liability. Statutes Harbor Workers’ Compensation Act (33 and case law have established cat- U.S.C. 905 and 5 U.S.C. 8171); egories of exclusions from FTCA liabil- (vi) That portion of any claim for ity. personal injury or property damage, (1) Statutory exclusions. Section 2680 caused by the negligence or fault of a of Title 28 lists claims not cognizable Government contractor, to the extent under the FTCA. They include: such contractor may have assumed li- (i) Claims based on the exercise or ability under the terms of the contract performance of, or the failure to exer- (see United States v. Seckinger, 397 U.S. cise or perform, a discretionary Gov- 203 (1969) and § 750.23(c)(2); ernment function; (vii) Any claim against the Depart- (ii) Admiralty claims under 46 U.S.C. ment of the Navy by another Federal 741–752 or 781–790. Claims under the agency. Property belonging to the Gov- Death on the High Seas Act (46 U.S.C. ernment is not owned by any one de- 761), however, are cognizable under the partment of the Government. The Gov- FTCA. All admiralty claims will be re- ernment does not reimburse itself for ferred to the Judge Advocate General the loss of its own property except for adjudication. Admiralty claims where specifically provided for by law; against the Navy shall be processed and under part 752 of this Chapter; (viii) Any claim for damage to a vehi- (iii) Claims arising from intentional cle rented pursuant to travel orders. torts, except those referred to in § 750.23(b); § 750.26 The administrative claim. (iv) Claims arising from the combat (a) Proper claimant. See § 750.5 of this activities of the military or naval part.

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(b) Claim presented by agent or legal monthly or yearly earnings and the du- representative. A claim filed by an agent ration of last employment; or legal representative will be filed in (iii) Full names, addresses, birth the name of the claimant; be signed by dates, relationship, and marital status the agent or legal representative; show of the decedent’s survivors, including the title or legal capacity of the person identification of survivors dependent signing; and be accompanied by evi- for support upon decedent at the time dence of the individual’s authority to of death; file a claim on behalf of the claimant. (iv) Degree of support provided by de- (c) Proper claim. A claim is a notice in cedent to each survivor at time of writing to the appropriate Federal death; agency of an incident giving rise to (v) Decedent’s general physical and Government liability under the FTCA. mental condition before death; It must include a demand for money (vi) Itemized bills for medical and damages in a definite sum for property burial expenses; damage, personal injury, or death al- (vii) If damages for pain and suffering leged to have occurred by reason of the are claimed, a physician’s detailed incident. The Attorney General’s regu- statement specifying the injuries suf- lations specify that the claim be filed fered, duration of pain and suffering, on a Standard Form 95 or other written any drugs administered for pain, and notification of the incident. If a letter the decedent’s physical condition dur- or other written notification is used, it ing the interval between injury and is essential that it set forth the same death; and, basic information required by Standard (viii) Any other evidence or informa- Form 95. Failure to do so may result in tion which may affect the liability of a determination that the administra- the United States. tive claim is incomplete. A suit may be (2) Personal injury. (i) A written re- dismissed on the ground of lack of sub- port by attending physician or dentist ject matter jurisdiction based on on the nature and extent of the injury, claimant’s failure to present a proper nature and extent of treatment, any claim as required by 28 U.S.C. 2675(a). degree of temporary or permanent dis- (d) Presentment. A claim is deemed ability, the prognosis, period of hos- presented when received by the Navy in pitalization, any any diminished earn- proper form. A claim against another ing capacity. In addition, the claimant agency, mistakenly addressed to or may be required to submit to a phys- filed with the Navy shall be transferred ical or mental examination by a physi- to the appropriate agency, if ascertain- cian employed by any Federal agency. able, or returned to the claimant. A Upon written request, a copy of the re- claimant presenting identical claims port of the examining physician shall with more than one agency should be provided; identify every agency to which the (ii) Itemized bills for medical, dental, claim is submitted on every claim form and hospital expenses incurred, or presented. Claims officers shall coordi- itemized receipts of payments of such nate with all other affected agencies expenses; and ensure a lead agency is designated. (iii) A statement of expected ex- 28 CFR 14.2. penses for future treatment; (iv) If a claim is made for lost wages, § 750.27 Information and supporting a written statement from the employer documentation. itemizing actual time and wages lost; (a) Proper documentation. Depending (v) If a claim is made for lost self-em- on the type of claim, claimants may be ployed income, documentary evidence required to submit information, as fol- showing the amount of earnings actu- lows: ally lost; and (1) Death. (i) An authenticated death (vi) Any other evidence or informa- certificate or other competent evidence tion which may affect the liability of showing cause of death, date of death, the United States for the personal in- and age of the decedent; jury or the damages claimed. (ii) Decedent’s employment or occu- (3) Property damage. (i) Proof of own- pation at time of death, including ership;

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(ii) A detailed statement of the turn receipt requested. The notifica- amount claimed for each item of prop- tion of final denial shall include the erty; reasons for the denial. The notification (iii) An itemized receipt of payment shall include a statement informing for necessary repairs or itemized writ- the claimant of his right to file suit in ten estimates of the cost of repairs; the appropriate Federal district court (iv) A statement listing date of pur- not later than 6 months after the date chase, purchase price, and salvage of the mailing of the notification. 28 value where repair is not economical; CFR 14.9(a). and (v) Any other evidence or informa- § 750.31 Reconsideration. tion which may affect the liability of the United States for the property (a) Request. Prior to the commence- damage claimed. ment of suit and prior to the expiration (b) Failure to submit necessary docu- of the 6-month period for filing suit, a mentation. If claimant fails to provide claimant or his duly authorized agent sufficient supporting documentation, or legal representative may present a claimant should be notified of the defi- request for reconsideration to the au- ciency. If after notice of the deficiency, thority who denied the claim. The re- including reference to 28 CFR 14.4, the quest shall be in writing and shall information is still not supplied, two state the reasons for the requested re- follow-up requests should be sent by consideration. A request for reconsider- certified mail, return receipt re- ation is presented on the date it is 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 re- § 750.29 Investigation and examina- quest for reconsideration. tion. (c) Effect of presentment of request. The Subpart A of this part requires an in- presentment of a proper request for re- vestigation for every incident that may consideration starts a new 6-month pe- result in a claim against or in favor of riod for the DON to act on the request the United States. Where a previously to reconsider. The claimant may not unanticipated claim is filed against the file suit until the expiration of the new Government and an investigation has 6-month period, or until after the date not already been conducted, the appro- of mailing of the final denial of the re- priate claims officer shall immediately quest. Final denial of a request for re- request an investigation. See subpart A consideration shall be accomplished in of this part for specific action required the manner prescribed in § 750.30. 28 by an adjudicating authority. CFR 14.9(b).

§ 750.30 Denial of the claim. § 750.32 Suits under the Federal Tort Final denial of an administrative Claims Act (FTCA). claim shall be in writing and shall be (a) Venue. Venue is proper only in the sent to the claimant, his duly author- judicial district where the plaintiff re- ized agent or legal representative by sides or where the act or omission com- certified or registered mail, with re- plained of occurred. 28 U.S.C. 1402.

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(b) Jury trial. There is no right to (c) Setoff. The United States is not trial by jury in suits brought under the obligated to pay twice for the same in- FTCA. 28 U.S.C. 2402. jury. Claimants under the FTCA may (c) Settlement. The Attorney General have received Government benefits or of the United States, or designee, may services as the result of the alleged arbitrate, compromise, or settle any tort. The cost of these services or bene- action filed under the FTCA. 28 U.S.C. fits shall be considered in arriving at 2677. any award of damages. For example, (d) Litigation support—(1) Who pro- the cost of medical or hospital services vides. The adjudicating authority hold- furnished at Government expense, in- ing a claim at the time suit is filed cluding CHAMPUS payments, shall be shall be responsible for providing nec- considered. Additionally, benefits or essary assistance to the Department of services received under the Veterans Justice official or U.S. Attorney re- Act (38 U.S.C. 101–800) must be consid- sponsible for defending the Govern- ered. Brooks v. United States, 337 U.S. 49 ment’s interests. (1949). (2) Litigation report. A litigation re- (d) Suit. Any damage award in a suit port, including a legal memorandum brought under the FTCA is limited to emphasizing anticipated issues during the amount claimed administratively litigation, shall be furnished to the ap- unless based on newly discovered evi- propriate Department of Justice offi- dence. 28 U.S.C. 2675(b). Plaintiff must cial or U.S. Attorney. prove the increased demand is based on (3) Pretrial discovery. Complete and facts not reasonably discoverable at timely responses to discovery requests the time of the presentment of the are vital to the effective defense of tort claim or on intervening facts relating litigation. Subject to existing per- to the amount of the claim. sonnel and resources available, appropriate assistance shall be provided. The § 750.34 Settlement and payment. Judge Advocate General should be no- (a) Settlement agreement—(1) When re- tified promptly when special problems quired. A settlement agreement, signed are encountered in providing the re- by the claimant, must be received prior quested assistance. to payment in every case in which the (4) Preservation of evidence. Tort liti- claim is either: gation is often accomplished over an (i) Settled for less than the full extended period of time. Every effort amount claimed, or shall be made to preserve files, docu- (ii) The claim was not presented on a ments, and other tangible evidence Standard Form 95. that may bear on litigation. Destruc- (2) Contents. Every settlement agree- tion of such evidence, even in accord- ment must contain language indicating ance with routine operating proce- payment is in full and final settlement dures, undermines defense of a case. of the applicable claim. Each settlement agreement shall contain lan- § 750.33 Damages. guage indicating acceptance of the set- (a) Generally. The measure of dam- tlement amount by the claimant, or ages is determined by the law of the his agent or legal representative, shall place where the act or omission oc- be final and conclusive on the claim- curred. When there is a conflict be- ant, or his agent or legal representa- tween local and applicable Federal law, tive, and any other person on whose be- the latter governs. 28 U.S.C. 1346(b). half or for whose benefit the claim has (b) Limitations on liability. The United been presented, and shall constitute a States is not liable for interest prior to complete release of any claim against judgment or for punitive damages. In a the United States and against any em- death case, if the place where the act ployee of the Government whose con- or omission complained of occurred duct gave rise to the claim, by reason provides for only punitive damages, the of the same subject matter. 28 CFR United States will be liable in lieu 14.10(b). In cases where partial payment thereof, for actual or compensatory will benefit both claimant and the Gov- damages. 28 U.S.C. 2674. ernment, such as payment for property

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damage to an automobile, the settle- from a third party and the agency is ment agreement shall be tailored to re- unable to adjust the third party claim; flect the terms of the partial settle- (iv) The compromise of a particular ment. All settlement agreements shall claim, as a practical matter, will or contain a recitation of the applicable may control the disposition of a re- statutory limitation of attorneys fees. lated claim in which the amount to be 28 U.S.C. 2678. paid may exceed $100,000.00; or (b) DON role in settlement negotiations (v) The DON is informed or is other- involving the U.S. Attorney or DOJ. wise aware that the United States or Agency concurrence is generally an employee, agent, or cost-plus con- sought by the Department of Justice or tractor of the United States is involved U.S. Attorney’s office prior to settle- in litigation based on a claim arising ment of suits involving the DON. Re- out of the same incident or trans- quests for concurrence in settlement action. proposals shall be referred to the ap- (2) Specific delegation and designa- propriate DON adjudicating authority tion—(i) Payment authority. with primary responsibility for moni- Federal Tort toring the claim. Adjudicating authori- Delegated and designated authority Claims Act ties shall consult with the Judge Advo- Judge Advocate General ...... Unlimited. cate General concerning proposed set- Deputy Judge Advocate General ...... Unlimited. tlements beyond their adjudicating au- Assistant Judge Advocate General (Gen- Unlimited. thority. eral Law). Deputy Assistant Judge Advocate Gen- $100,000.00. (c) Payment of the claim—(1) Statutory eral (Claims and Tort Litigation) and authority. Pursuant to 28 U.S.C. 2672 Deputy Division Director. and in accordance with 28 CFR 14.6(a), Head, Federal Tort Claims Branch, $50,000.00. the Secretary of the Navy or designee, Claims and Tort Division, OJAG. Commanding Officers of Naval Legal $25,000.00. acting on behalf of the United States, Service Offices; Officers in Charge of may compromise or settle any claim Naval Legal Service Office Detach- filed against the Navy under the FTCA, ments when Specifically Designated by Cognizant Commanding Officers of provided any award, compromise, or Naval Legal Service Offices. settlement by the Navy in excess of $100,000.00 may be effected only with Any payment of over $100,000.00 must the prior written approval of the Attor- be approved by the Department of Jus- ney General or designee. Title 28 CFR tice. In addition, the authority to deny 14.6 requires consultation with the De- Federal Tort Claims is double the Fed- partment of Justice prior to com- eral Tort Claims Act approval author- promise or settlement of a claim in any ity shown above. The Judge Advocate amount when: General, the Deputy Judge Advocate (i) A new precedent or a new point of General, the Assistant Judge Advocate law is involved; General (General Law), and the Deputy (ii) A question of policy is or may be Assistant Judge Advocate General involved; (Claims and Tort Litigation) may deny (iii) The United States is or may be Federal Tort Claims in any amount. entitled to indemnity or contribution (ii) Territorial responsibility.

Responsible command Territory

NAVLEGSVCOFF Newport ...... Maine, Vermont, New Hampshire, Massachusetts, Rhode Island, and Connecticut. NAVLEGSVCOFF Philadelphia ...... Pennsylvania, New Jersey, Ohio, and New York. NAVLEGSVCOFF Washington, DC .. Maryland, the District of Columbia, and Northern Virginia area (zip 220–223). NAVLEGSVCOFF Norfolk ...... Virginia (less Northern Virginia area—zip 220–223), and West Virginia, North Carolina (counties of Currituck, Camden, Pasquotonk, Gates, Perquimans, Chowan, Dare, Tyrrell, Washington, Hyde, Beaufort, Pamlico, Craven, Jones, Carteret, and Onslow only), Bermuda, Iceland, Greenland, Azores, The Caribbean, The Republics of Guate- mala, El Salvador, Honduras, Nicaragua, Costa Rica, and Panama, Belize, Colombia, Venezuela, Guyana, French Guiana, Surinam, Brazil, Bolivia, Paraguay, Uruguay, Ar- gentina, and all Atlantic and Arctic Ocean areas and islands not otherwise assigned. NAVLEGSVCOFF Charleston ...... North Carolina (less counties of Currituck, Camden, Pasquotonk, Gates, Perquimans, Chowan, Dare, Tyrrell, Washington, Hyde, Beaufort, Pamlico, Craven, Jones, Carteret, Onslow), and Georgia (less Counties of Charlton, Camden, and Glynn). NAVLEGSVCOFF Jacksonville ...... That portion of Florida east of the western boundaries of Gadsen, Liberty, and Franklin Counties and Georgia (counties of Charlton, Camden, and Glynn).

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Responsible command Territory

NAVLEGSVCOFF Pensacola...... Florida [Pensacola/Panama City area (zip 324–325)], Alabama, Louisiana and Mis- sissippi (that portion south of Washington, Humphreys, Holmes, Attala, Winston, and Noxubee Counties, and that portion of the Gulf of Mexico East of longitude 90 W). NAVLEGSVCOFF Memphis ...... Missouri, Tennessee, Kentucky, Arkansas, and that portion of Mississippi north of the southern boundaries of Washington, Humphreys, Holmes, Attala, Winston, and Noxubee Counties. NAVLEGSVCOFF Great Lakes ...... North Dakota, South Dakota, Nebraska, Minnesota, Michigan, Iowa, Wisconsin, Illinois, and Indiana. NAVLEGSVCOFF Corpus Christi ..... Texas. NAVLEGSVCOFF San Diego ...... California (Imperial County, San Diego County, and that area included in Marine Corps Base, Camp Pendleton extending into Orange County, only), that portion of Mexico 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). 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 § 750.36 Time limitations. $2,500.00 or less are paid from DON ap- (a) Administrative claim. Every claim propriations. Claims approved in excess filed against the United States under of $2,500.00 are paid from the judgment the FTCA must be presented in writing fund and must be forwarded to the within 2 years after the claim accrues. United States General Accounting Of- 28 U.S.C. 2401(b). Federal law deter- fice (GAO) for payment. 28 CFR mines the date of accrual. A claim ac- 14.10(a). Claims arising out of the oper- crues when the claimant discovers or ation of nonappropriated-fund activi- reasonably should have discovered the ties and approved for payment shall be existence of the act giving rise to the forwarded to the appropriate non- claim. In computing the statutory time appropriated-fund activity for pay- period, the day of the incident is ex- ment. cluded and the day the claim was presented included. § 750.35 Attorney’s fees. (b) Amendments. Upon timely filing of Attorney’s fees are limited to 20 per- an amendment to a pending claim, the cent of any compromise or settlement DON shall have 6 months to make a of an administrative claim, and are final disposition of the claim as amend- limited to 25 percent of any judgment ed, and the claimant’s option to file rendered in favor of a plaintiff, or of suit under 28 U.S.C. 2675(a) shall not any settlement accomplished after suit accrue until 6 months after the pre- is filed. These amounts are to be paid sentment of an amendment. 28 CFR out of the amount awarded and not in 14.2(c). addition to the award. 28 U.S.C. 2678. (c) Suits. A civil action is barred unless suit is filed against the United

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States not later than 6 months after § 750.43 Claims payable. the date of mailing of notice of final (a) General. Unless otherwise pre- denial of the claim. 28 U.S.C. 2401(b). scribed, a claim for personal injury, The failure of the DON to make final death, or damage or loss of real or per- disposition of a claim within 6 months sonal property is payable under this after it is presented shall, at the option provision when: of the claimant any time thereafter, be (1) Caused by an act or omission de- deemed a final denial of the claim. 28 termined to be negligent, wrongful, or U.S.C. 2675(a). otherwise involving fault of DON personnel acting within the scope of their §§ 750.37–750.40 [Reserved] employment; or (2) Incident to noncombat activities Subpart C—Military Claims Act of the DON. A claim may be settled under this provision if it arises from § 750.41 Scope of subpart C. authorized activities essentially mili- This section prescribes the sub- tary in nature, having little parallel in stantive bases and special procedural civilian pursuits, and in which the U.S. requirements for the settlement of Government has historically assumed a claims against the United States for broad liability, even if not shown to death, personal injury, or damage, loss, have been caused by any particular act or destruction of property: or omission by DON personnel while (a) Caused by military personnel or ci- acting within the scope of their em- vilian employees of the Department of the ployment. Examples include practice Navy (DON) (hereinafter DON personnel). firing of missiles and weapons, sonic For the purposes of this section, DON booms, training and field exercises, and personnel include all military per- maneuvers that include operation of sonnel of the Navy and Marine Corps, aircraft and vehicles, use and occu- volunteer workers, and others serving pancy of real estate, and movement of as employees of the DON with or with- combat or other vehicles designed espe- out compensation, and members of the cially for military use. Activities inci- National Oceanic and Atmospheric Ad- dent to combat, whether or not in time ministration or of the Public Health of war, and use of DON personnel dur- Service when serving with the DON. ing civil disturbances are excluded. DON personnel does not include DON (b) Specific claims payable. Claims contractors or their employees. payable by the DON under § 750.43(a) (1) (b) Incident to noncombat activities of and (2) shall include, but not be limited the DON. Claims for personal injury or to: death of a member of the Armed Forces (1) Registered or insured mail. Claims or Coast Guard, or civilian officer or for damage to, loss, or destruction, employee of the U.S. Government even if by criminal acts, of registered whose injury or death is incident to or insured mail while in the possession service, however, are not payable. of DON authorities are payable under (c) Territorial limitation. There is no the MCA. This provision is an excep- geographical limitation on the application to the general requirement that tion of the MCA, but if a claim arising compensable damage, loss, or destruc- in a foreign country is cognizable tion of personal property be caused by under the Foreign Claims Act (10 DON personnel while acting within the U.S.C. 2734), the claim shall be proc- scope of their employment or otherwise essed under that statute. See 10 U.S.C. incident to noncombat activities of the 2733(b)(2). DON. The maximum award to a claim- (d) Suit. The MCA authorizes the ad- ant under this section is limited to ministrative settlement and payment that to which the claimant would be of certain claims. The United States entitled from the Postal Service under has not consented to be sued. the registry or insurance fee paid. The award shall not exceed the cost of the § 750.42 Statutory authority. item to the claimant regardless of the 10 U.S.C. 2733, as amended, commonly fees paid. Claimant may be reimbursed referred to as the Military Claims Act for the postage and registry or insur- (MCA). ance fees.

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(2) Property bailed to the DON. Claims indirectly from any act by armed for damage to or loss of personal prop- forces engaged in combat. erty bailed to the DON, under an ex- (c) Any claim for reimbursement of press or implied agreement are payable medical, hospital, or burial expenses to under the MCA, even though legally the extent already paid by the U.S. enforceable against the U.S. Govern- Government. ment as contract claims, unless by ex- (d) Any claim cognizable under: press agreement the bailor has as- (1) Military Personnel and Civilian sumed the risk of damage, loss, or de- Employees’ Claims Act, as amended. 31 struction. Claims filed under this para- U.S.C. 3721. graph may, if in the best interest of the (2) Foreign Claims Act. 10 U.S.C. 2734. U.S. Government, be referred to and (3) 10 U.S.C. 7622, relating to admi- processed by the Office of the General ralty claims. See part 752 of this Chap- Counsel, DON, as contract claims. ter. (3) Real property. Claims for damage to real property incident to the use and (4) Federal Tort Claims Act. 28 U.S.C. occupancy by the DON, whether under 2671, 2672, and 2674–2680. an express or implied lease or other- (5) International Agreements Claims wise, are payable under the MCA even Act. 10 U.S.C. 2734a and 2734b. though legally enforceable against the (6) Federal Employees’ Compensation DON as contract claims. Claims filed Act. 5 U.S.C. 8101–8150. under this paragraph may, if in the (7) Longshore and Harbor Workers’ best interest of the U.S. Government, Compensation Act. 33 U.S.C. 901–950. be referred to and processed by the Of- (e) Any claim for damage to or loss fice of the General Counsel, DON, as or destruction of real or personal prop- contract claims. erty founded in written contract [ex- (4) Property of U.S. military personnel. cept as provided in § 750.43(b) (2) and Claims of U.S. military personnel for (3)]. property lost, damaged, or destroyed (f) Any claim for rent of real or per- under conditions in § 750.43(a) (1) and (2) sonal property [except as provided in occurring on a military installation, § 750.43(b) (2) and (3)]. not payable under the Military Per- (g) Any claim involving infringement sonnel and Civilian Employees’ Claims of patents. Act, are payable under the MCA. (h) Any claim for damage, loss, or de- (5) Health care and Legal Assistance struction of mail prior to delivery by Providers. Claims arising from the per- the Postal Service to authorized DON sonal liability of DON health care and personnel or occurring due to the fault legal assistance personnel for costs, of, or while in the hands of, bonded per- settlements, or judgments for neg- sonnel. ligent acts or omissions while acting within the scope of assigned duties or (i) Any claim by a national, or cor- employment are payable under the poration controlled by a national, of a MCA. See § 750.54. country in armed conflict with the United States, or an ally of such coun- § 750.44 Claims not payable. try, unless the claimant is determined (a) Any claim for damage, loss, de- to be friendly to the United States. struction, injury, or death which was (j) Any claim for personal injury or proximately caused, in whole or in death of a member of the Armed Forces part, by any negligence or wrongful act or civilian employee incident to his on the part of the claimant, or his service. 10 U.S.C. 2733(b)(3). agent or employee, unless the law of (k) Any claim for damage to or loss the place where the act or omission of bailed property when bailor specifi- complained of occurred would permit cally assumes such risk. recovery from a private individual (l) Any claim for taking private real under like circumstances, and then property by a continuing trespass or by only to the extent permitted by the technical trespass such as overflights law. of aircraft. (b) Any claim resulting from action (m) Any claim based solely on com- by the enemy or resulting directly or passionate grounds.

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§ 750.45 Filing claim. section 750.27 of this part. A claim (a) Who may file. Under the MCA, spe- must be substantiated as required by cifically, the following are proper this Part in order to be paid. See 10 claimants: U.S.C. 2733(b)(5). (1) U.S. citizens and inhabitants. (f) Amendment of claim. A proper (2) U.S. military personnel and civil- claim may be amended by the claimant ian employees, except not for personal at any time prior to final denial or injury or death incident to service. payment of the claim. An amendment (3) Persons in foreign countries who shall be submitted in writing and are not inhabitants. signed by the claimant or a duly au- (4) States and their political subdivi- thorized agent or legal representative. sions (including agencies). (g) Payment. Claims approved for pay- (5) Prisoners of war for personal prop- ment shall be forwarded to such dis- erty, but not personal injury. bursing officer as may be designated by (6) Subrogees, to the extent they paid the Comptroller of the Navy for pay- the claim. ment from appropriations designated (b) Who may not file. (1) Inhabitants for that purpose. If the Secretary of of foreign nations for loss or injury oc- the Navy considers that a claim in ex- curring in the country they inhabit. (2) U.S. Government agencies and de- cess of $100,000.00 is meritorious and partments. would otherwise be covered by 10 (c) When to file/statute of limitations. U.S.C. 2733 and § 750.43, he may make a Claims against the DON must be pre- partial payment of $100,000.00 and refer sented in writing within 2 years after the excess to the General Accounting they accrue. In computing the 2 year Office for payment from appropriations period, the day the claim accrues is ex- provided therefore. cluded and the day the claim is presented is included. If the incident oc- § 750.46 Applicable law. curs in time of war or armed conflict, (a) Claims arising within the United however, or if war or armed conflict in- States, Territories, Commonwealth, and tervenes within 2 years after its occur- Possessions. The law of the place where rence, an MCA claim, on good cause the act or omission occurred will be ap- shown, may be presented within 2 years plied in determining liability and the after the war or armed conflict is ter- effect of contributory or comparative minated. For the purposes of the MCA, negligence on claimant’s right of re- the date of termination of the war or covery. armed conflict is the date established (b) Claims within foreign countries. (1) by concurrent resolution of Congress or Where the claim is for personal injury, by the President. See 10 U.S.C. death, or damage to or loss or destruc- 2733(b)(1). tion of real or personal property caused (d) Where to file. The claim shall be by an act or omission determined to be submitted by the claimant to the commanding officer of the naval activity negligent, wrongful, or otherwise in- involved, if it is known. Otherwise, it volving fault of DON personnel acting shall be submitted to the commanding within the scope of their employment, officer of any naval activity, preferably liability of the United States will be the one within which, or nearest to assessed under general principles of which, the incident occurred, or to the tort law common to the majority of Judge Advocate General of the Navy, American jurisdictions. 200 Stovall Street, Alexandria, VA (2) Apply the law of the foreign coun- 22332–2400. try governing the legal effect of con- (e) Claim form. A claim is correct in tributory or comparative negligence by form if it constitutes written notifica- the claimant to determine the relative tion of an incident, signed by the merits of the claim. If there is no for- claimant or a duly authorized agent or eign law on contributory or compara- legal representative, with a claim for tive negligence, apply traditional rules money damages in a sum certain. A of contributory negligence. Apply for- Standard Form 95 is preferred. A claim eign rules and regulations on operation should be substantiated as discussed in of motor vehicles (rules of the road) to

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the extent those rules are not specifi- miliar with the type of property dam- cally superseded or preempted by U.S. aged, lost, or destroyed. Armed Forces traffic regulations. (c) Loss of use of damaged property (c) Clarification of terms. The prin- which is economically repairable may, ciples of absolute liability and punitive if claimed, be included as an additional damages do not apply to claims under element of damage to the extent of the the MCA. Federal law determines the reasonable expense actually incurred meaning and construction of the MCA. for appropriate substitute property, for such period reasonably necessary for § 750.47 Measure of damages for prop- repairs, as long as idle property of the erty claims. claimant was not employed as a sub- Determine the measure of damages in stitute. When substitute property is property claims arising in the United not obtainable, other competent evi- States or its territories, common- dence such as rental value, if not spec- wealth, or possessions under the law of ulative or remote, may be considered. the place where the incident occurred. When substitute property is reasonably Determine the measure of damages in available but not obtained and used by property claims arising overseas under the claimant, loss of use is normally general principles of American tort not payable. law, stated as follows: (a) If the property has been or can be § 750.48 Measure of damages in injury economically repaired, the measure of or death cases. damages shall be the actual or esti- (a) Where an injury or death arises mated net cost of the repairs necessary within the United States or its terri- to substantially restore the property to tories, commonwealth, or possessions, the condition that existed immediately determine the measure of damages prior to the incident. Damages shall under the law of the location where the not exceed the value of the property injury arises. immediately prior to the incident less (b) Where an injury or death arises in the value thereof immediately after a foreign country and is otherwise cog- the incident. To determine the actual nizable and meritorious under this pro- or estimated net cost of repairs, the vision, damages will be determined in value of any salvaged parts or mate- accordance with general principles of rials and the amount of any net appre- American tort law. The following is ciation in value effected through the provided as guidance. repair shall be deducted from the ac- (1) Measure of Damages for Overseas tual or estimated gross cost of repairs. Personal Injury Claims. Allowable com- The amount of any net depreciation in pensation includes reasonable medical the value of the property shall be added and hospital expenses necessarily in- to such gross cost of repairs, if such ad- curred, compensation for lost earnings justments are sufficiently substantial and services, diminution of earning ca- in amount to warrant consideration. pacity, anticipated medical expenses, Estimates of the cost of repairs shall physical disfigurement, and pain and be based upon the lower or lowest of suffering. two or more competitive bids, or upon (2) Wrongful Death Claims Arising in statements or estimates by one or Foreign Countries. (i) Allowable com- more competent and disinterested per- pensation includes that in paragraph sons, preferably reputable dealers or of- (b)(1) of this section, burial expenses, ficials familiar with the type of prop- loss of support and services, loss of erty damaged, lost, or destroyed. companionship, comfort, society, pro- (b) If the property cannot be eco- tection, and consortium, and loss of nomically repaired, the measure of training, guidance, education, and nur- damages shall be the value of the prop- turing, as applicable. erty immediately prior to the incident (ii) The claim may be presented by or less the value immediately after the on behalf of the decedent’s spouse, par- incident. Estimates of value shall be ent, child, or dependent relative. made, if possible, by one or more com- Claims may be consolidated for joint petent and disinterested persons, pref- presentation by a representative of erably reputable dealers or officials fa- some or all of the beneficiaries or may

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be filed by a proper beneficiary individ- deny an appeal of a claim it had pre- ually. viously denied.

§ 750.49 Delegations of adjudicating § 750.50 Advance payments. authority. (a) Scope. This paragraph applies ex- (a) Settlement Authority. (1) The Sec- clusively to the payment of amounts retary of the Navy may settle claims in not to exceed $100,000.00 under 10 U.S.C. any amount. The Secretary may pay 2736 in advance of submission of a the first $100,000.00 and report the ex- claim. cess to the Comptroller General for (b) Statutory authority. Title 10 U.S.C. payment under 31 U.S.C. 1304. 10 See 2736 authorizes the Secretary of the U.S.C. 2733(d). Navy or designee to pay an amount not (2) The Judge Advocate General has in excess of $100,000.00 in advance of the delegated authority to settle claims for submission of a claim to or for any per- $100,000.00 or less. son, or the legal representative of any (3) The Deputy Judge Advocate Gen- person, who was injured or killed, or eral, the Assistant Judge Advocate whose property was damaged or lost, as General (General Law), and the Deputy the result of an accident for which al- Assistant Judge Advocate General lowance of a claim is authorized by (Claims and Tort Litigation) have dele- law. Payment under this law is limited gated authority to settle claims for to that which would be payable under $25,000.00 or less. the MCA (10 U.S.C. 2733). Payment of (4) Naval Legal Service Office com- an amount under this law is not an ad- manding officers and the Officer in mission by the United States of liabil- Charge, U.S. Sending State Office for ity for the accident concerned. Any Italy have delegated authority to set- amount so paid shall be deducted from tle claims for $15,000.00 or less. any amount that may be allowed under (5) Officers in charge of Naval Legal any other provision of law to the per- Service Office Detachments, when spe- son or his legal representative for in- cifically designated by cognizant com- jury, death, damage, or loss attrib- manding officers of Naval Legal Serv- utable to the accident concerned. ice Offices; and the Claims Officer at the U.S. Naval Station, Panama Canal (c) Officials with Authority to make Ad- have delegated authority to settle vance Payments. (1) The Secretary of claims for $10,000.00 or less. the Navy has authority to make ad- (6) Overseas commands with a Judge vance payments up to $100,000.00 Advocate General’s Corps officer or a (2) The Judge Advocate General has judge advocate of the Marine Corps at- delegated authority to make advance tached, have delegated authority to payments up to $100,000.00. settle claims for $5,000.00 or less. (3) The Deputy Assistant Judge Ad- (b) Denial Authority. (1) The Sec- vocate General (Claims and Tort Liti- retary of the Navy may deny a claim in gation) has delegated authority to any amount. make advance payments up to (2) The Judge Advocate General, the $25,000.00. Deputy Judge Advocate General, the (4) Naval Legal Service Office com- Assistant Judge Advocate General manding officers and the Officer in (General Law), and the Deputy Assist- Charge, U.S. Sending State Office for ant Judge Advocate General (Claims Italy have delegated authority to make and Tort Litigation) have delegated au- advance payments up to $5,000.00. thority to deny claims in any amount. (5) Officers in Charge of Naval Legal (3) All other adjudicating authorities Service Office Detachments, when spe- have delegated authority to deny cifically designated by cognizant Com- claims only to the amount of their set- manding Officers of Naval Legal Serv- tlement authority. ice Offices; and the Staff Judge Advo- (c) Appellate Authority. Adjudicating cate at the U.S. Naval Station, Pan- authorities have the same authority as ama Canal have delegated authority to delegated in paragraph b above to act make advance payments up to $3,000.00. upon appeals. No appellate authority (6) Overseas commands with a Judge below the Secretary of the Navy may Advocate General’s Corps officer or a

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judge advocate of the Marine Corps at- claimant, or his attorney or legal rep- tached, have delegated authority to resentative, by certified or registered make advance payments up to $3,000.00. mail, return receipt requested. The no- (d) Conditions for Advance Payments. tification of denial shall include a Prior to making an advance payment statement of the reason or reasons for under 10 U.S.C. 2736, the adjudicating denial and that the claimant may ap- authority shall ascertain that: peal. The notification shall also inform (1) The injury, death, damage, or loss the claimant: would be payable under the MCA (10 (1) The title of the appellate author- U.S.C. 2733); ity who will act on the appeal and that (2) The payee, insofar as can be deter- the appeal will be addressed to the ad- mined, would be a proper claimant, or judicating authority who last acted on is the spouse or next of kin of a proper the claim. claimant who is incapacitated; (3) The provable damages are esti- (2) No form is prescribed for the ap- mated to exceed the amount to be paid; peal, but the grounds for appeal should (4) There exists an immediate need of be set forth fully. the person who suffered the injury, (3) The appeal must be submitted damage, or loss, or of his family, or of within 30 days of receipt by the claim- the family of a person who was killed, ant of notice of action on the claim. for food, clothing, shelter, medical, or burial expenses, or other necessities, § 750.52 Appeal. and other resources for such expenses (a) A claim which is disapproved in are not reasonably available; whole or in part may be appealed by (5) The prospective payee has signed the claimant at any time within 30 a statement that it is understood that days after receipt of notification of dis- payment is not an admission by the approval. An appeal shall be in writing Navy or the United States of liability and state the grounds relied upon. An for the accident concerned, and that appeal is not an adversary proceeding the amount paid is not a gratuity but and a hearing is not authorized; how- shall constitute an advance against ever, the claimant may obtain and sub- and shall be deducted from any amount mit any additional evidence or written that may be allowed under any other argument for consideration by the ap- provision of law to the person or his pellate authority. legal representative for injury, death, (b) Upon receipt, the adjudicating au- damage, or loss attributable to the ac- thority examines the appeal, deter- cident concerned; and mines whether the appeal complies (6) No payment under 10 U.S.C. 2736 may be made if the accident occurred with this regulation, and reviews the in a foreign country in which the claims investigative file to ensure it is NATO Status of Forces Agreement (4 complete. The claim, with the com- U.S.T. 1792, TIAS 2846) or other similar plete investigative file and a memo- agreement is in effect and the injury, randum of law, will be forwarded to the death, damage, or loss appellate authority for action. If the (i) Was caused by a member or em- evidence in the file, including informa- ployee of the DON acting within the tion submitted by the claimant with scope of employment or the appeal, indicates the appeal should (ii) Occurred ‘‘incident to noncombat be approved, the adjudicating author- activities’’ of the DON as defined in ity may treat the appeal as a request § 750.43. for reconsideration. (c) Processing of the appeal may be § 750.51 Final disposition. delayed pending further efforts by the (a) Claimant to be notified. The adjudi- adjudicating authority to settle the cating authority shall notify the claim. Where the adjudicating author- claimant, in writing, of the action ity does not reach a final agreement on taken on the claim. an appealed claim, it shall send the en- (b) Final denial. A final denial, in tire claim file to the next higher set- whole or in part, of any MCA claim tlement authority, who is the appellate shall be in writing and sent to the authority for that claim.

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(d) The appellate authority shall no- § 750.55 Attorney’s fees. tify the claimant in writing of the de- Attorney’s fees not in excess of 20 termination on appeal; that such deter- percent of any settlement may be al- mination constitutes the final adminis- lowed. Attorney’s fees so determined trative action on the claim; and there are to be paid out of the amount is no right to sue under the MCA. awarded and not in addition to the award. These fee limitations shall be § 750.53 Cross-servicing. incorporated in any settlement agree- (a) See § 750.13 or information about ment secured from a claimant. single-service claims responsibility under DODDIR 5515.8 of 9 June 1990. §§ 750.56–750.60 [Reserved] (b) Claims Settlement Procedures. Where a single service has been as- Subpart D—Claims Not Cog- signed a country or area claims respon- nizable Under Any Other Pro- sibility, that service will settle claims vision of Law cognizable under the MCA under the regulations of that service. The for- § 750.61 Scope of subpart D. warding command shall afford any as- This section provides information on sistance necessary to the appropriate payment of claims against the United service in the investigation and adju- States, not payable under any other dication of such claims. statute, caused by the act or omission, negligent, wrongful, or otherwise in- § 750.54 Payment of costs, settlements, volving fault, of Department of the and judgments related to certain Navy (DON) military and civilian per- medical or legal malpractice claims. sonnel (hereinafter DON personnel) (a) General. Requests for reimburse- acting outside the scope of their em- ment/indemnification of costs, settle- ployment. ments, and judgments cognizable under 10 U.S.C. 1089(f) [for personal injury or § 750.62 Statutory authority. death caused by any physician, dentist, Section 2737 of title 10, United States nurse, pharmacist, paramedic, or other Code, provides authority for the admin- supporting personnel (including med- istrative settlement in an amount not ical and dental technicians, nurse as- to exceed $1,000.00 of any claim against sistants, and therapists)] or 10 U.S.C. the United States not cognizable under 1054(f) (for damages for injury or loss of any other provision of law for damage, property caused by any attorney, para- loss, or destruction of property or for legal, or other member of a legal staff) personal injury or death caused by while acting as DON personnel will be military personnel or a civilian official paid if: or employee of a military department (1) The alleged negligent or wrongful incident to the use of a vehicle of the actions or omissions arose in connec- United States at any place, or any tion with either providing health care other property of the United States on functions or legal services and within a Government installation. There is no right to sue. There are no territorial the scope of employment; and limitations and the Act has worldwide (2) Such personnel furnish prompt no- application. tification and delivery of all process served or received, and other docu- § 750.63 Definitions. ments, information, and assistance as requested; and cooperate in defending (a) Civilian official or employee. Any civilian employee of the DON paid from the action on the merits. appropriated funds at the time of the (b) Requests for Indemnification. All incident. requests for indemnification for per- (b) Vehicle. Includes every description sonal liability of DON personnel for of carriage or other artificial contriv- acts or omissions arising out of as- ance used, or capable of being used, as signed duties shall be forwarded to the a means of transportation on land. See Judge Advocate General for action. 1 U.S.C. 4.

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(c) Government installation. Any Fed- (i) Claims submitted solely under 10 eral facility having fixed boundaries U.S.C. 2737 shall be promptly consid- and owned or controlled by the U.S. ered. If a nonscope claim is denied, the Government. It includes both military claimant shall be informed of reasons bases and nonmilitary installations. in writing and advised he may appeal in writing to the Secretary of the Navy § 750.64 Claim procedures. (Judge Advocate General) provided the (a) The general provisions of subpart appeal is received within 30 days of the A of this part shall apply in deter- notice of denial. The provisions of mining what is a proper claim, who is § 750.51(b) of subpart C also apply to de- a proper claimant, and how a claim is nials of nonscope claims. to be investigated and processed under 10 U.S.C. 2737 and this section. § 750.65 Statute of limitations. (b) A claim is presented when the (a) A claim must be presented in DON receives from a claimant or the writing within 2 years after it accrues. claimant’s duly authorized agent, writ- It accrues at the time the claimant dis- ten notification of a nonscope claim in- covers, or in the exercise of reasonable cident accompanied by a demand for care should have discovered, the exist- money damages in a sum certain. ence of the act or omission for which (c) A claimant may amend a claim at the claim is filed. any time prior to final action. Amend- (b) In computing time to determine ments will be submitted in writing and whether the period of limitation has signed by the claimant or the claim- expired, exclude the incident date and ant’s duly authorized agent. include the date the claim was pre- (d) Claims submitted under the provi- sented. sions of the Federal Tort Claims Act (FTCA) or Military Claims Act (MCA) § 750.66 Officials with authority to set- shall be considered automatically for tle. an award under this section when payment would otherwise be barred be- Judge Advocate General; Deputy cause the DON personnel were not in Judge Advocate General; Assistant the scope of their employment at the Judge Advocate General (General Law); time of the incident. If a tender of pay- Deputy Assistant Judge Advocate Gen- ment under this section is not accepted eral (Claims and Tort Litigation Divi- by the claimant in full satisfaction of sion); Head, Federal Tort Claims the claim, no award will be made, and Branch (Claims and Tort Litigation Di- the claim will be denied pursuant to vision); Head, Military Claims Branch the rules applicable to the statute (Claims and Tort Litigation Division), under which it was submitted. and commanding officers of Naval (e) Damages caused by latent defects Legal Service Offices may settle a of ordinary, commercial type, Govern- nonscope claim. ment equipment that were not payable § 750.67 Scope of liability. under the MCA, Foreign Claims Act, or FTCA are payable under this section. (a) Subject to the exceptions in (f) Nonscope claims for damages § 750.68 of specific claims not payable, caused by local national DON employ- the United States shall not pay more ees overseas are also payable under than $1,000.00 for a claim against the this section if the injury was caused by United States, not cognizable under the use of Government equipment. any other provision of law, except Arti- (g) Payment may not be made on a cle 139, UCMJ. nonscope claim unless the claimant ac- (b) Article 139, UCMJ, 10 U.S.C. 939, is cepts the amount offered in full satis- not preemptive. The prohibition in 10 faction of the claim and signs a settle- U.S.C. 2737 on paying claims ‘‘not cog- ment agreement. nizable under any other provisions of (h) Payment for nonscope claims ad- law’’ applies only to law authorizing judicated by field commands will be af- claims against the United States. Arti- fected through their local disbursing cle 139 authorizes claims against office by use of funds obtained from the servicemembers. See part 755 of this Judge Advocate General. chapter.

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§ 750.68 Claims not payable. 751.27 Preparation and dispatch of demand packets. (a) A claim for damage, loss, or de- 751.28 Assignment of claimants rights to struction of property or the personal the government. injury or death caused wholly or partly 751.29 Recoveries from carrier, contractor, by a negligent or wrongful act of the or insurer. claimant or his agent or employee. 751.30 Settlement procedures and third (b) A claim, or any part thereof, that party responses. is legally recoverable by the claimant 751.31 Common reasons for denial by carrier under an indemnifying law or indem- or contractor. nity contract. 751.32 Forwarding claims files for offset ac- (c) A subrogated claim. tion. 751.33 Unearned freight packet. § 750.69 Measure of damages. 751.34 GAO appeals. 751.35 Forms and instructions. Generally, the measure-of-damage provisions under the MCA are used to AUTHORITY: 5 U.S.C 301; 10 U.S.C. 939, 5013, determine the extent of recovery for and 5148; E.O. 11476, 3 CFR, 1969 Comp., p. 132; 32 CFR 700.206 and 700.1202. nonscope claims. Compensation is computed in accordance with §§ 750.47 and SOURCE: 57 FR 5055, Feb. 12, 1992, unless 750.48 of subpart C, except damages for otherwise noted. personal injury or death under this section shall not be for more than the cost Subpart A—Claims Against the of reasonable medical, hospital, and United States burial expenses actually incurred and not otherwise furnished or paid for by § 751.1 Scope of subpart A. the United States. Subpart A of this part prescribes procedures and substantive bases for ad- PART 751—PERSONNEL CLAIMS ministrative settlement of claims REGULATIONS against the United States submitted by Department of the Navy (DON) per- Subpart A—Claims Against the United sonnel and civilian employees of the States naval establishment.

Sec. § 751.2 Claims against the United 751.1 Scope of subpart A. States: In general. 751.2 Claims against the United States: In general. (a) Maximum amount payable. The 751.3 Authority. Military and Civilian Employees’ Per- 751.4 Construction. sonnel Claims Act (Personnel Claims 751.5 Definitions. Act), 31 U.S.C. 3701, 3702, and 3721, pro- 751.6 Claims payable. vides that the maximum amount pay- 751.7 Claims not payable. able for any loss or damage arising 751.8 Adjudicating authorities. 751.9 Presentment of claim. from a single incident is limited to 751.10 Form of claim. $40,000.00. Claims for losses occurring 751.11 Investigation of claim. prior to 31 October 1988 are limited to 751.12 Computation of award. $25,000.00. 751.13 Payments and collections. (b) Additional instructions. The Judge 751.14 Partial payments. Advocate General of the Navy may 751.15 Reconsideration and appeal. issue additional instructions or guid- 751.16–751.20 [Reserved] ance as necessary to give full force and Subpart B—Demand On Carrier, effect to this section. Contractor, or Insurer (c) Preemption. The provisions of this section and the Personnel Claims Act 751.21 Scope of subpart B. are preemptive of other claims regula- 751.22 Carrier recovery: In general. tions. Claims not allowable under the 751.23 Responsibilities. Personnel Claims Act may, however, be 751.24 Notice of loss or damage. 751.25 Types of shipments and liability in- allowable under another claims act. volved. (d) Other claims. Claims arising from 751.26 Demand on carrier, contractor, or in- the operation of a ship’s store, laundry, surer. dry cleaning facility, tailor shop, or

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cobbler shop should be processed in ac- and Marine Corps nonappropriated- cordance with NAVSUP P487. fund activities for loss, damage, or destruction of personal property incident § 751.3 Authority. to their employment will be processed The Personnel Claims Act provides and adjudicated in accordance with the authority for maximum payment this enclosure and forwarded to the ap- up to $40,000.00 for loss, damage, or de- propriate local nonappropriated-fund struction of personal property of mili- activity which employs the claimant tary personnel or civilian employees for payment from nonappropriated- incident to their service. The Act pro- funds. vides for the recovery from carriers, (4) Separation from service. Separation warehouse firms, and other third par- from the service or termination of em- ties responsible for such loss, damage, ployment shall not bar former military or destruction. No claim may be paid personnel or civilian employees from unless it is presented in writing within filing claims or bar designated officers 2 years of the incident giving rise to from considering, ascertaining, adjust- the claim. ing, determining, and authorizing payment of claims otherwise falling within § 751.4 Construction. the provision of these regulations when The provisions of this section and the such claim accrued prior to separation Personnel Claims Act provide limited or termination. compensation to service members and (b) Improper claimants. Insurers, as- civilian employees of the DON for loss signees, subrogees, vendors, and damage to personal property in- lienholders, contractors, subcontrac- curred incident to service. This limited tors and their employees, and other compensation is not a substitute for persons not specifically mentioned as private insurance. Although not every proper claimants. loss may be compensated under the (c) Unusual occurrence. Serious events Personnel Claims Act, its provisions and natural disasters not expected to shall be broadly construed to provide take place in the normal course of reasonable compensation on meri- events. Two different types of incidents torious claims. Adjudications must be may be considered unusual occur- based on common sense and the rea- rences: those of an unusual nature and soned judgment of the claims examiner those of a common nature that occur giving the benefit of realistic doubt to to an unexpected degree of severity. the claimant. Examples of unusual occurrences include structural defects in quarters, § 751.5 Definitions. faulty plumbing maintenance, termite (a) Proper claimants—(1) Members of or rodent damage, unusually large size the DON. All Navy and Marine Corps hail, and hazardous health conditions active duty members and reservists on due to Government use of toxic chemi- active duty for training under Federal cals. Examples of occurrences that are law whether commissioned, enrolled, not unusual include potholes or foreign appointed, or enlisted. A retired mem- objects in the road, ice and snow slid- ber may only claim under this Act if ing off a roof onto a vehicle, and tears, loss or damage occurred while the rips, snags, or stains on clothing. claimant was on active duty or in con- Claims that electrical or electronic de- nection with the claimant’s last move- vices were damaged by a power surge ment of personal property incident to may be paid when lightning has actu- service. ally struck the claimant’s residence or (2) Civilian employees of the Navy. Fed- objects outside the residence, such as a eral employees of the naval establish- transformer box, or when power 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

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available, to protect delicate items ant can substantiate that he was free such as computers or videocassette re- from negligence, he can file a claim for corders. damages to his household goods. (d) Personal property. Property includ- (5) Shipment or storage at the claiming but not limited to household goods, ant’s expense. The shipment or storage unaccompanied baggage, privately is considered Government-sponsored if owned vehicles (POV’s), mobile homes, the Government later reimburses the and boats. claimant for it. The Government, how- (e) Intangible property. Property that ever, will not compensate a claimant has no intrinsic marketable value such for loss or damage that occurs while as bankbooks, checks, promissory property is being shipped or stored at notes, non-negotiable stock certifi- the claimant’s expense, even if the cates, bonds, baggage checks, insur- Government reimburses the claimant ance policies, money orders, and trav- for the shipment or storage fees. The elers checks. reason for this is that there is no con- (f) Vehicles. Includes automobiles, tract, called a Government Bill of Lad- motorcycles, mopeds, utility trailers, ing (GBL), between Government and camping trailers, trucks, mounted the carrier. In such cases the claimant camper bodies, motor homes, boats, must claim against the carrier. boat trailers, bicycles, and aircraft. (b) Losses at assigned quarters or other Mobile homes and other property used authorized places. Damage or loss as dwelling places are not considered caused by fire, explosion, theft, van- vehicles. dalism, lightning, flood, earthquake, and unusual occurrences. Losses due to § 751.6 Claims payable. theft may only be paid if the claimant Claims for loss, damage, or destruc- took reasonable measures to safeguard tion of property may be considered as the property and the theft occurred as set out below if possession of the prop- a result of a forced entry. Claimants erty was reasonable and useful under are expected to secure windows and the circumstances and the loss did not doors of their barracks, quarters, wall result from the negligence of the lockers, and other storage areas. claimant. Claimants are expected to store (a) Transportation and storage losses. valuables in a secure area within their (1) Incurred during transportation barracks, quarters, and storage areas. under orders, whether in possession of Claimants are also expected to take the Government, carrier, storage ware- extra measures to protect cash, valu- house, or other Government con- able jewelry, and similar small, easily tractor. pilferable items. Normally, such items (2) Incurred during travel under or- should be kept in a locked container ders, including temporary duty. within a secured room. It is also advis- (3) Incurred during travel on a space able that the locked container be large available basis on a military aircraft, enough that it is not convenient for a vessel, or vehicle. thief to carry off. Bicycles located at (4) Do-it-yourself (DITY) moves. In cer- quarters or on base must be secured to tain circumstances, loss of or damage a fixed object. Overseas housing is con- to property during a DITY move is sidered assigned quarters for claimants compensable. Claimants, however, are who are not local inhabitants. required to substantiate the fact of loss (c) Vehicle losses. (1) Incurred while a or damage in shipment. Claimants who vehicle is used in the performance of do not prepare inventories have dif- military duty, if such use was author- ficulty substantiating thefts. In addi- ized or directed for the convenience of tion, unless evidence shows that some- the Government, provided the travel thing outside the claimant’s control did not include commuting to or from caused the damage, breakage is pre- the permanent place of duty, and did sumed to be the result of improper not arise from mechanical or struc- packing by the claimant. For example, tural defect of the vehicle. There is no if a claimant’s truck is rear-ended by a requirement that the loss be due to drunk driver during a DITY move, it is fire, flood, hurricane, or other unusual out of claimant’s control. If the claim- occurrence, or to theft or vandalism.

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As a general rule, however, travel is or the Department of Defense (DOD). A not considered to be for the conven- vehicle properly on the installation ience of the Government unless it was should be presumed to be used incident pursuant to written orders authorizing to the claimant’s service. A vehicle use for which the claimant is entitled that is not properly insured or reg- to reimbursement. The claimant must istered in accordance with local regula- be free from negligence in order to be tions is not properly on the installa- paid for a collision loss. Travel by the tion. A vehicle left in a remote area of claimant to other buildings on the in- the installation that is not a des- stallation is not considered to be under ignated long-term parking area for an orders for the convenience of the Gov- undue length of time is presumed not ernment. Travel off the installation to be on the installation incident to without written orders may only be service. deemed to be for the convenience of the (5) Theft of property stored inside a ve- Government if the claimant was ex- hicle. Claimants are expected to lock pressly directed by his superior to use doors and windows. Neither the pas- POV to accomplish the mission. The senger compartment nor the trunk of a issuance of written orders after the vehicle is a proper place for the long- fact raises the presumption that travel term storage of property unconnected was not for the convenience of the Gov- with the use of the vehicle. The pas- ernment. The maximum payment of senger compartment of a vehicle does $2,000.00 authorized by the Allowance not provide adequate security, except List-Depreciation Guide still applies to for very short periods of time for arti- loss of or damage to vehicles and con- cles that are not of high value or easily tents. This maximum does not apply to pilferable. Car covers and bras are pay- DITY moves. able if bolted or secured to the vehicle (2) Incurred while a vehicle is shipped with a wire locking device. at Government expense, provided the (6) Rental vehicles. Damage to rental loss or damage did not arise from me- vehicles is considered under paragraphs chanical or structural defect of the ve- of the Joint Federal Travel Regula- hicle during such shipment. Damage tions (JFTR), rather than as a loss in- caused during shipment at the claim- cident to service. ant’s expense or while the vehicle is (d) Mobile homes and contents in ship- being moved to or from the port by an ment. Claims for damage to mobile agent of the claimant is not compen- homes and contents in shipment are sable. payable unless the damage was caused (3) Incurred while a vehicle is located by structural or mechanical defects at quarters or other authorized place of (see § 751.12(g) below on mobile homes). lodging, including garages, carports, (e) Borrowed property (including vehi- driveways, assigned parking spaces, if cles). Loss or damage to borrowed prop- the loss or damage is caused by fire, erty is compensable if it was borrowed flood, hurricane, theft, or vandalism, for claimant’s or dependent’s own use. or other unusual occurrence. Van- A statement will be provided by the dalism is damage intentionally caused. owner of the property attesting to the Stray marks caused by children play- use of the property by the claimant. ing, falling branches, gravel thrown by (f) Clothing and articles being worn. other vehicles, or similar occurrences Repairs/replacement of clothing and are not vandalism. The amount pay- articles being worn while on a military able on vandalism claims is limited to installation or in the performance of $2,000.00. official duty may be paid if loss is (4) Incurred while a vehicle is located caused by fire, flood, hurricane, theft, at places other than quarters but on a or vandalism, or other unusual occur- military installation, if the loss or rence. This paragraph shall be broadly damage is caused by fire, flood, hurri- construed in favor of compensation, cane, theft, or vandalism, or other un- but see § 751.5(c) for the definition of usual occurrence. ‘‘Military installa- unusual occurrence. Articles being tion’’ is used broadly to describe any worn include hearing aids, eyeglasses, fixed land area, wherever situated, con- and items the claimant is carrying, trolled, and used by military activities such as a briefcase.

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(g) Personal property held as evidence tificates, marriage certificates, college or confiscated property. If property be- diplomas, passports, or similar docu- longing to the victim of a crime is to ments may be allowed if the original or be held as evidence for an extended pe- a certified copy is lost or destroyed in- riod of time (in excess of 2 months) and cident to service. In general, com- the temporary loss of the property will pensation will only be allowed for re- work a grave hardship on the claimant, placing documents with a raised seal a claim for the loss may be considered that are official in nature. No com- for payment. This provision will not be pensation will be allowed for docu- used unless every effort has been made ments that are representative of value, to determine whether secondary evi- such as stock certificates, or for per- dence, such as photographs, may be sonal letters or records. substituted for the item. No compensa- (2) Estimate fees. An estimate fee is a tion is allowed to a person suspected of fixed cost charged by a person in the an offense for property seized from that business of repairing property to pro- same person in the investigation of vide an estimate of what it would cost that offense. This also applies to prop- to repair property. An estimate fee in erty a foreign government unjustly excess of $50.00 should be examined confiscates or an unjust change in a with great care to determine whether foreign law that forces surrender or it is reasonable. A person becomes obli- abandonment of property. gated to pay an estimate fee when the (h) Theft from possession of claimant. estimate is prepared. An estimate fee Theft from the person of the claimant should not be confused with an ap- is reimbursable if the theft occurred by praisal fee, which is not compensable use of force, violence, or threat to do (see § 751.7). A reasonable estimate fee bodily harm, or by snatching or is compensable if it is not going to be pickpocketing, and at the time of theft credited toward the cost of repair. If it the claimant was either on a military is to be credited toward the cost of re- installation, utilizing a recreation fa- pair, it is not compensable regardless cility operated or sponsored by the De- of whether the claimant chooses to partment of Defense or any agency have the work done. When an estimate thereof, or in the performance of offi- fee is claimed, the file must reflect cial duty. The theft must have been re- whether the fee is to be credited. ported to appropriate police authorities as soon as practicable, and it must § 751.7 Claims not payable. have been reasonable for the claimant to have had on his person the quality (a) Losses in unassigned quarters in the and the quantity of the property alleg- United States. Claims for property dam- edly stolen. aged or lost at quarters occupied by (i) Property used for the benefit of the the claimant within the United States Government. Compensation is author- that are not assigned or otherwise pro- ized where property is damaged or lost vided by the Government. while being used in the performance of (b) Currency or jewelry shipped or Government business at the direction stored in baggage. Claims for lost or request of superior authority or by money, currency, or jewelry shipped or reason of military necessity. stored in baggage are not payable. Coin (j) Money deposited for safekeeping, or paper money included in collections transmittal, or other authorized disposi- is payable only if listed on an invention. Compensation is authorized for tory prepared at origin. personal funds delivered to and accept- (c) Enemy property or war trophies. ed by military and civilian personnel This includes only property that was authorized by the commanding officer originally enemy property or a war tro- to receive these funds for safekeeping, phy that passed into the hands of a col- deposit, transmittal, or other author- lector and was then purchased by a ized disposition, if the funds were nei- claimant. ther applied as directed by the owner (d) Unserviceable or Worn-Out Prop- nor returned to the owner. erty. (k) Fees—(1) For obtaining certain doc- (e) Loss or Damage to Property to uments. The fees for replacing birth cer- the Extent of any Available Insurance

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Coverage as Set Forth in § 751.26 of this property shipped to accommodate an- part. other person, as well as property used (f) Inconvenience or loss of use. Ex- to transport contraband. penses arising from late delivery of (l) Sales tax. Sales taxes associated personal property, including but not with repair or replacement costs will limited to the expenses for food, lodg- not be considered unless the claimant ing, and furniture rental, loss of use, provides proof that the sales tax was interest, carrying charges, attorney’s actually paid. fees, telephone calls, additional costs (m) Appraisal fees. An appraisal, as of transporting claimant or family distinguished from an estimate of re- members, time spent in preparation of placement or repair, is defined as a claim, or cost of insurance are not compensable. While such claims do not valuation of an item provided by a per- lie against the Government, members son who is not in the business of selling should be referred to the Personal or repairing that type of property. Nor- Property Office for assistance in filing mally, claimants are expected to ob- their inconvenience claims against the tain appraisals on expensive items at commercial carriers (NAVSUP Publi- their own expense. cation 490, Transportation of Personal (n) Quantities of property not reason- Property). able or useful under the circumstances are (g) Items of speculative value. Theses, not compensable. Factors to be consid- manuscripts, unsold paintings, or a ered are claimant’s living conditions, similar creative or artistic work done family size, social obligations, and any by the claimant, friend, or a relative is particular need to have more than av- limited to the cost of materials only. erage quantities, as well as the actual The value of such items is speculative. circumstances surrounding the acquisi- Compensation for a utilitarian object tion and loss. made by the claimant, such as a quilt (o) Intangible Property, such as or bookcase, is limited to the value of Bankbooks, Checks, Promissory Notes, an item of similar quality. Stock Certificates, Bonds, Bills of Lad- (h) Loss or damage to property due to ing, Warehouse Receipts, Baggage negligence of the claimant. Negligence is Checks, Insurance Policies, Money Or- a failure to exercise the degree of care ders, and Traveler’s Checks are not expected under the circumstances that is the proximate cause of the loss. Compensable. Losses due, in whole or in part, to the (p) Property Owned by the United negligence of the claimant, the claim- States, Except where the Claimant is ant’s spouse, child, houseguest, em- Responsible to an Agency of the Gov- ployee, or agent are not compensable. ernment other than the DON. (i) Business property. Losses of items (q) Contractual coverage. Losses, or acquired for resale or use in a private any portion thereof, that have been re- business are not compensable. If prop- covered or are recoverable pursuant to erty is acquired for both business and contract are not compensable. personal use, compensation will not be allowed if business use is substantial, § 751.8 Adjudicating authorities. or is the primary purpose for which the (a) Claims by Navy personnel. (1) The item was purchased, or if the item is following are authorized to adjudicate designed for professional use and is not and authorize payment of personnel normally intended for personal use. claims up to $40,000.00: (j) Motor vehicles. Collision damage is (1) The Judge Advocate General; not payable unless it meets the criteria for payment as property used for the (ii) Deputy Judge Advocate General; benefit of the Government as estab- (iii) Any Assistant Judge Advocate lished in § 751.6(c)(1). General; (k) Violation of law or directives. Prop- (iv) The Deputy Assistant Judge Ad- erty acquired, possessed, or trans- vocate General (Claims and Tort Liti- ported unlawfully or in violation of gation); and competent regulations or directives. (v) Commanding officers of Naval This includes vehicles, weapons, or Legal Service Offices.

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(2) The Staff Judge Advocate at- sonal property office serving the instal- tached to Naval Supply Center, Oak- lation where the claimant is stationed, land is authorized to adjudicate and or nearest to the point where the loss pay claims up to $25,000.00. or damage occurred. If submission in (3) The Staff Judge Advocate at- accordance with the foregoing is im- tached to Naval Station, Panama practical under the circumstances, the Canal is authorized to adjudicate and claim may be submitted in writing to pay claims up to $10,000.00. any installation or establishment of (4) The following are authorized to the Armed Forces which will forward adjudicate and authorize payment of the claim to the appropriate Navy or personnel claims up to $5,000.00: Marine Corps claims office for proc- (i) Officers in charge of Naval Legal essing. To constitute a filing under this Service Office Detachments; regulation, a claim must be presented (ii) The Staff Judge Advocate at- in writing to one of the military detached to Naval Station, Keflavik; and partments. Claims that are incomplete (iii) Any personnel attached to a will not be refused and shall be logged Naval Legal Service Office when spe- in as received. Claimants submitting cifically designated by the com- such claims, however, shall be in- manding officer of that Naval Legal formed in writing that properly com- Service Office. pleted forms or necessary substan- (5) Any individual, when personally tiation must be received within a fixed designated by the Judge Advocate Gen- period of time (normally 30 days), oth- eral, may be authorized to adjudicate erwise the claim will be denied or paid and authorize payment of personnel only in the amount substantiated. claims up to any delegated amount, (b) Statute of limitations. A claim must not to exceed $40,000.00. be presented in writing to a military (b) Claims by Marine Corps personnel. installation within 2 years after it ac- (1) The following individuals are au- crues. This requirement is statutory thorized to adjudicate and authorize and may only be waived if a claim ac- payment of personnel claims up to crues during armed conflict, or armed $40,000.00: conflict intervenes before the 2 years (i) Commandant of the Marine Corps; have run, and good cause is shown. In (ii) Deputy Chief of Staff, Manpower this situation, a claim may be pre- and Reserve Affairs Department; sented not later than 2 years after the (iii) Director, Human Resources Divi- end of the armed conflict. A claim ac- sion; crues on the day the claimant knows or (iv) Head, Personal Affairs Branch; should know of the loss. For losses that (v) Deputy Head, Personal Affairs occur in shipment of personal property, Branch; normally the day of delivery or the day (vi) Head, Personnel Claims Section; the claimant loses entitlement to stor- and age at Government expense (whichever (vii) Any individual, when personally occurs first) is the day the claim ac- designated by the Commandant of the crues. If a claimant’s entitlement to Marine Corps, may be authorized to ad- Government storage terminates, but judicate and authorize payment of per- the property is later delivered at Gov- sonnel claims up to any delegated ernment expense, the claim accrues on amount, and not to exceed $40,000.00. delivery. In computing the 2 years, ex- (2) The following individuals are au- clude the first day (day of delivery or thorized to adjudicate and authorize incident) and include the last day. If payment of personnel claims up to the last day falls on a non-workday, ex- $25,000.00: tend the 2 years to the next workday. (i) Head, Adjudication Unit; (c) Substantiation. The claimant is re- (ii) Head, Carrier Recovery Unit; and sponsible for substantiating ownership (iii) Head, Administration Unit. or possession, the fact of loss or 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.

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(1) Obviously damaged or missing inven- ined to determine whether the material tory items that are not reported at deliv- is solid hardwood, fine quality veneer ery. Claimants are expected to list over hardwood, veneer over pressed missing inventory items and obvious wood, or other types of material. If the damage at time of delivery. Claimants inspection is conducted at the claim- who do not should be questioned. Obvi- ant’s quarters, the general quality of ously some claimants will simply not property should be determined. Claim- notice readily apparent damage. If, ants should routinely be directed to however, the claimant cannot provide bring in vehicles and small broken an explanation or lacks credibility, items of value such as figurines for in- payment should be denied based on spection, and inspections should be lack of evidence that the item was lost conducted on all large claims. Observa- or damaged in shipment. tions by repairmen and transportation (2) Later-discovered shipment loss or inspectors are very valuable, but on oc- damage. A claimant has 70 days to un- casion, claims personnel must go out of pack, discover, and report loss and the office and inspect items them- damage that is not obvious at delivery. selves. Such inspections are necessary In most cases, loss and damage that is to reduce the number of reconsider- discovered later and reported in a ations and fraudulent claims and are timely manner should be deemed to invaluable in enabling claims per- have been incurred in shipment. sonnel to understand the facts in many (3) Damage to POV’s in shipment. Per- situations. sons shipping POV’s are expected to list damage on DD Form 788 (Private § 751.10 Form of claim. Vehicle Shipping Document for Auto- mobile) when they pick up the vehicle. The claim should be submitted on DD Obvious external damage that is not Form 1842 (Claim for Personal Prop- listed is not payable. Damage the erty) accompanied by DD Form 1844 claimant could reasonably be expected (List of Property). If DD Forms 1842 not to notice at the pickup point and 1844 1 are not available, any writing should be considered if the claimant re- will be accepted and considered if it as- ports the damage to claims personnel serts a demand for a specific sum and within a short time, normally a few substantially describes the facts nec- days, after arriving at the installation. essary to support a claim cognizable (4) Credibility. Most claimants are under these regulations. The claim honest. Most claimants objectively at- must be signed by a proper claimant tempt to claim only what is due them. (see § 751.5) or by a person with a power These persons are entitled to the pre- of attorney for a proper claimant. A sumption that what they list is honest, copy of the power of attorney must be although it may not be correct. Some included with the claim. claimants lack credibility and their claims require careful scrutiny. Fac- § 751.11 Investigation of claim. tors that indicate a claimant’s credi- Upon receipt of a claim filed under bility is questionable include amounts the Personnel Claims Act, the claim claimed that are exaggerated in com- shall be stamped with the date and re- parison with the cost of similar items, ceiving office, and be referred to a insignificant or almost undetectable claims investigating officer. The inves- damage, very recent purchase dates for tigating officer shall consider all infor- most items claimed, and statements mation and evidence submitted with that appear incredible. Such claimants the claim and shall conduct such fur- should be required to provide more evi- ther investigation as may be necessary dence than is normally expected. and appropriate. (5) Inspections. Whenever a question arises about damage to property, the 1 best way to determine a proper award Copies of these forms may be obtained by contacting the claims office or personal is to examine the item closely to deter- property office serving the installation mine that nature of the damage. For where the claimant is stationed, or nearest furniture, undersurfaces and the edges to the point where the loss or damage oc- of drawers and doors should be exam- curred.

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§ 751.12 Computation of award. item, and the nature of the damage, The Judge Advocate General will pe- and claims personnel should exercise riodically publish an Allowance List- sound judgment to avoid being too le- Depreciation Guide specifying rates of nient or too harsh. depreciation and maximum payments (iii) Cosmetic damage to nondecorative applicable to categories of property. items. LOV should also be awarded to The Allowance List-Depreciation Guide compensate claimants for cosmetic will be binding on all DON claims per- damage to items that were not pur- sonnel. The value of the loss is deter- chased for purposes of display or deco- mined and adjusted to reflect pay- ration. For example, the casing of a ments, repairs, or replacement by car- washing machine is dented. The wash- riers or insurers, or lost potential in- ing machine is not decorative in nature surance or carrier recoveries. and still functions perfectly. An LOV, (a) Repair of items. For items that can rather than replacement of the wash- be economically repaired, the cost of ing machine or the casing, is the appro- repair or an appropriate loss in value is priate measure of the claimant’s loss. the measure of the loss. The cost of re- (2) PED to repairable items. PED is pair may be the actual cost, as dem- damage to an item that predates the onstrated by a paid bill, or reasonable incident giving rise to a claim. PED is estimated costs, as demonstrated by an most commonly identified by the use estimate of repair prepared by a person of symbols on household goods ship- in the business of repairing that type ment inventories. Whenever PED is of property. listed on an inventory, claims per- (1) Loss of value (LOV)—(i) Minor dam- sonnel must determine whether the age not worth repairing. An LOV, rather PED did in fact exist and whether the than replacement cost, should be cost of repairing the item includes re- awarded when an item suffers minor pairing PED. The fact that a claimant damage that is not economical to re- signed the inventory that listed PED is pair but the item remains useful for its conclusive evidence that PED did exist intended purpose. An LOV is particu- unless the member has taken written larly appropriate when the item is not exceptions on the inventory to the car- of great value and has preexisting dam- rier’s description of PED. These find- age (PED). An LOV is also appropriate ings are essential for recovery pur- to compensate claimants for minor poses. Often inspecting the item or damage, such as a chip or surface crack calling the repairman who prepared the to a figure or knickknack. For exam- estimate is the only way to make an ple, if an inexpensive, fiberboard coffee effective determination. table with extensive PED is scratched, repair of the scratch would exceed the (i) Estimates that do not include repair value of the table. Under the cir- of PED. If the estimate does not in- cumstances, LOV is appropriate. clude repair of PED, even if PED is (ii) Damage to upholstered furniture. If listed on the inventory, no deduction damage can be repaired imperceptibly should be made. This fact should be re- by cleaning or reweaving, the claimant corded on the chronology sheet and on is only entitled to repair cost. If re- carrier recovery documents. pairs would be somewhat noticeable (ii) Estimates that include repair of but the damage is to an area not nor- PED. If repair of PED is included in the mally seen, repair costs plus an LOV estimate, the percentage attributable would be appropriate. Alternatively, if to repair of PED is deducted. repairs would be somewhat noticeable (3) Mechanical defects. The Personnel but the item is of no great value and Claims Act only provides compensation has already suffered PED, repair costs for losses incurred incident to service. and LOV would be appropriate even if Damage resulting from a manufactur- the damage is in an obvious area. If, er’s defect or from normal wear and however, repairs would be so noticeable tear is not compensable. Damage to the as to destroy the usefulness of the engine or transmission of an old vehi- item, the item should be reupholstered cle during shipment is probably due to or replaced. What is noticeable will de- a mechanical defect. Internal damage pend on the nature and value of the to appliances, such as old televisions,

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is also often due to a mechanical de- (1) Similar used items. If there is a reg- fect, particularly when their is no ex- ular market for used items of that par- ternal damage to the item. Claims for ticular type, the loss may be measured internal damage to small appliances by the cost of a similar item of similar that are not normally repaired, such as age. Prices obtained from industry toasters or hair dryers, should be as- guides or estimates from dealers in this sessed based on damage to other items type of property are acceptable to es- in the carton and the shipment, the age tablish value. There is a regular mar- of the item, the honesty of the claim- ket on used cars and the value of a ant, and whether there are loose parts used automobile is always measured inside. If the evidence suggests rough according to the N.A.D.A. Official Car handling caused the damage, a claim Guide rather than the depreciated re- for the item should be paid. Internal placement cost. Similarly, the Mobile damage to larger items such as tele- Home Manufactured Housing Replace- visions or stereos should be evaluated ment Guide may be used to value a de- by a repairman. Evidence that suggests stroyed mobile home. Where there is no rough handling, such as smashed regular market in a particular type of boards, provides a basis for payment. used item, however, estimates from Evidence that suggests a fault in the dealers in ‘‘collector’s items’’ should be item, such as burned-out circuits, does avoided. not. Deterioration because an item in (2) Depreciated replacement cost. This storage was not used for a long time, is the normal measure of a claimant’s rather than because the item was mis- loss. A catalog or store price for a new handled or the conditions of storage item similar in size and quality is de- were improper, is also considered due preciated using the Allowance List-De- to a mechanical defect. preciation Guide to reflect wear and (4) Wrinkled clothing. Clothing wrin- tear on the missing or destroyed item. kled in shipment presents special prob- The replacement cost for identical lems. Normally, unless the wrinkling is items—particularly decorative items— so severe as to amount to actual dam- should be used whenever the item is age, the cost to press wrinkles out of readily available in the local area, but clothing after a move is not compen- a claimant who is eligible to use the sable. The mere fact that clothing was Navy Exchange (NEX) and the NEX ‘‘wadded up’’ or ‘‘used as packing mate- Mail Order Catalog should not be al- rial’’ is not in itself sufficient. The lowed a higher replacement cost of an wrinkling must be such that profes- item, such as a television, from a spe- sional pressing is necessary to make cialty store when the NEX carries an the clothing usable. This determina- item comparable in size, quality, and tion will depend on the wrinkling and features from another manufacturer. the nature of the material. (3) ‘‘Fair and reasonable’’ (F&R) (5) Wet and mildewed items. A claim- awards. A fair and reasonable award ant has a duty to mitigate damages by should be used sparingly when other drying wet items to prevent further de- measures would compensate the claim- terioration. Items that have been wet ant appropriately. Overuse of such are not necessarily damaged and claim- awards impedes carrier recovery and ants who throw them away have dif- ‘‘F&R’’ should never be used when a ficulty substantiating that a loss has more precise measure of damages is occurred. Although a deeply seated available. An F&R award for a missing mildew infestation is almost impos- or destroyed item should reflect the sible to remove completely, items value of an item similar in quality, de- lightly infested can often be cleaned. scription, age, condition, and function (b) Replacement of items. A claimant is to the greatest extent possible. An entitled to the value of missing and de- F&R award for a damaged item should stroyed items. An item that has sus- reflect either the amount a firm would tained damage is considered destroyed charge for repair or the reduced value if it is no longer useful for its intended to the greatest extent possible. When- purpose and the cost of repairing it ex- ever such an award is made, the basis ceeds its value. Value is measured in for the award should be explained on the following ways: the chronology sheet, in the comments

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block of DD Form 1844 (List of Prop- useful life of upholstered furniture. erty), or in a separate memorandum. A When upholstered furniture is reuphol- fair and reasonable award may be con- stered because the damage is too severe sidered in the following instances: to be repaired and an LOV is not appro- (i) The item is obsolete and a simple priate, the cost of new fabric is depre- deduction of a percentage for obsoles- ciated at a rate of 5 percent per year. If cence is not appropriate. the item has been reupholstered since (ii) The claimant cannot replace the it was purchased, depreciation is meas- item in the local area. ured from the date the item was last (iii) The claimant cannot replace the reupholstered, rather than from the item at any cost. date the item was originally purchased. (iv) Repair costs or replacement costs Labor costs are allowed as claimed. If are excessive for the item and an LOV the estimate does not list separate is not appropriate. costs for fabric and labor, the labor (v) The claimant has substantiated a costs may be assumed to be 50 percent loss in some amount but has failed to of the total bill. substantiate a loss in the amount (3) Rapidly depreciating items. Tires, claimed. most clothing items, and most toys (c) Depreciation. The Personnel rapidly lose their value, as the high de- Claims Act is only intended to com- preciation rate for these items reflects. pensate claimants for the fair market Depreciation should be taken on such value of their loss. Except in unusual items even when they are less than 6 cases, a used item that has been lost or months old. As a rule of thumb, half of destroyed is worth less than a new the normal yearly or flat rate deprecia- item of the same type. The price of a tion should be taken on such items new replacement item must be depre- when they are between 3 and 6 months ciated to award the claimant the value old at the time of loss. of the lost or destroyed item. Average (4) Obsolescence. Even though depre- yearly and flat rates of depreciation ciation is not taken during periods of have been established to determine the storage, obsolescence should be fair value of used property in various claimed on those items that have lost categories. These rates are listed in the value because of changes in style or Allowance-List Depreciation Guide. technological innovations. The listed depreciation rate should be (5) Military uniforms. Normally, no de- adjusted if an item has been subjected preciation should be taken on military to greater or lesser wear and tear than uniforms. Depreciation, however, normal or if the replacement cost the should be taken on military uniform claimant provides is for a used item items that are being phased out or that rather than a new one. Yearly depre- belong to persons separating from the ciation is not taken during periods of service. Socks and underwear are not storage and normally no depreciation considered military uniform items. is taken on repair costs or on replace- (d) Salvage value. Whenever a claim- ment cost for items less than 6 months ant has been fully compensated for a old, excluding the month of purchase destroyed item that still has some and the month the claim accrued (but value, the claimant has the option of see § 751.12(c)(3)). either retaining the item and having (1) Depreciating replacement parts. No the claims office deduct an amount for depreciation should be taken on re- the salvage value, or turning the item placement parts for damaged items un- over to the Government or to the car- less these are parts separately pur- rier if the carrier will fully reimburse chased or normally replaced during the the Government. useful life of these items. The replace- (1) Turn-in to the Government. On all ment cost for these latter items should claims, except CONUS domestic ship- be depreciated. For example, the glass ments, if the claimant does not choose top to a table is not normally replaced to retain the items and accepts a re- during the useful life of the table and duction in the amount paid on the should not be depreciated. claim for salvage value, the claims of- (2) Depreciating fabric for reupholstery. fice will require the claimant to turn Fabric is normally replaced during the them into a disposal unit designated by

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the Personal Property Office. Nor- end of the period allotted for carrier mally, the amount that the Govern- pick-up. ment may obtain from selling such (3) Maximum allowances. If the claim- items is very low. If the claims office ant will not be fully compensated for determines that the salvage value is an item because a maximum allowance less than $25.00, the claimant may be is applied, he will not be required to advised to dispose of the items by other turn in the item. means, either by throwing the item (e) Standard abbreviations. The claims away or by turning it over to a chari- examiner’s intent should be clear and table organization. Claimants may also unmistakable to anyone reviewing the be directed to make alternative dis- remarks section of DD Form 1844. The position of items that have been re- following standardized abbreviations fused by the designated disposal unit. are used in completing the remarks This alternate disposition must be section. Other abbreviations should not noted on the chronology sheet that is be used. Whenever one or more of these kept as part of the claims file. Claims abbreviations will not adequately ex- personnel will not divert such items to plain how the claimant has been com- personal use or use them to furnish pensated, a brief explanation should be Government offices. In determining inserted in the remarks section, in the whether an item has salvage value, the comments section on the bottom of DD size of the item and the distance the Form 1844, or on the chronology sheet claimant must travel to turn it in that is kept in each claims file. should be considered. A claimant must (1) AC: Amount claimed. The amount make his own arrangements to trans- claimed was awarded to the claimant. port salvageable items prior to pay- This abbreviation is not used if the ment. Claims personnel should ask the claimant has presented an estimate of claimant’s command to make transpor- repair. tation available to assist the claimant in appropriate cases, particularly when (2) AGC: Agreed cost of repairs. The the item is large or bulky. Sound dis- claimant did not present an estimate cretion prohibits requiring a claimant but instead, after discussing the mat- living far from a designated disposal ter with claims personnel, entered an unit to turn in an item of relatively amount that represents the claimant’s slight value. guess as to how much it would cost to (2) Turn-in to the carrier. On CONUS repair the damaged item. The claims domestic shipments, the carrier may office may accept this amount as a fair choose to pick up items for which it estimation of the cost of repair based will fully reimburse the Government. on the amount of damage, the value of Pursuant to a Joint Military-Industry the item, and the cost of similar re- Memorandum on Salvage, items that pairs in the area. A claimant may be are hazardous to keep around, such as allowed up to $50.00 as an AGC without mildewed items or broken glass (except an inspection and between $50.00 and items such as figurines and crystal $100.00 if claims personnel have in- with a per item value of more than spected the item. The use of AGC is an $50.00), may be disposed of as the claim- integral part of small claims proce- ant chooses. Claimants must retain dures. other items for a maximum of 120 days (3) CR: Carrier recovery. The claimant from the date of delivery to allow the was paid this amount by the carrier for carrier to pick them up. Pursuant to the item. The payment is recorded in this memorandum of understanding, the remarks column, and the total car- the carrier has until the end of the in- rier payment is deducted at the bottom spection period or 30 days after receipt of DD Form 1844 in the same manner as of the demand, whichever is greater, to insurance recovery. identify such items. Claims offices (4) D: Depreciation. Yearly deprecia- must identify files in which the carrier tion was taken on the destroyed or is entitled to salvage and must process missing item in accordance with the these claims for recovery action within appropriate depreciation guide in effect 30 days so that the claimant does not at the time of the loss. Deviations from dispose of salvageable items before the standard rates must be explained.

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(5) DV: Depreciated value. A claim- (17) NEX: Navy Exchange replacement ant’s repair costs exceeded the value of cost. A replacement from the NEX was the item, so the depreciated value was used. awarded instead. Whenever a claimant (18) RC: Replacement cost. A replace- claims a repair cost that is very high, ment cost was used. The store or cata- relative to the age and probable re- log from which the replacement cost placement cost, the replacement cost was taken should be listed. should be obtained and the depreciated (19) SV/N: Item has no salvage value. A value determined. destroyed item was determined to have (6) ER: Estimate of repair. The claim- no salvage value. ant provided an estimate of repair that (20) SV/R: Salvage value, item retained. was used to value the loss. If multiple A destroyed item was determined to estimates were provided, they should have salvage value and the claimant be numbered and referred to as exhib- chose to keep the item. Accordingly, a its. deduction was made for the salvage (7) EX: Exhibit. When numerous docu- value. ments have been provided to substan- (21) SV/T: Salvage value, item turned in. tiate a claim, they should be numbered A destroyed item was determined to and referred to as exhibits. have salvage value and the claimant (8) FR: Flat rate depreciation. Flat chose not to keep the item. If the item rate depreciation was taken on an item is part of a CONUS domestic shipment, in accordance with the Depreciation the claimant must keep it for the car- Guide in effect at the time of the loss. rier to pick up. Otherwise, the claim- Deviations from the normal rate must ant must turn the item in prior to pay- be explained. ment on the claim. (9) F&R: Fair and reasonable. A fair (f) Sets. Normally, when component and reasonable award was made (see parts of a set are missing or destroyed, § 751.12(b)(3)). the claimant is only entitled to the replacement cost of the missing or de- (10) LOV: Loss of value. An LOV was stroyed components. In some in- awarded (see § 751.5(a)(1)). stances, however, a claimant would be (11) The ad- MA: Maximum allowance. entitled to replacement of the entire judicated value, listed in the Amount ‘‘ set or to an additional LOV. Some Allowed column, exceeds a maximum ’’ claimants will assert that all of the allowance. The amount in excess of the items in a room are part of a set. maximum allowance is subtracted at Pieces sold separately, however, are or- the bottom of the DD Form 1844. dinarily not considered parts of a set, (12) N/P: Not payable. The item is not and pieces that merely complement payable. The reason for this comment other items, such as a loveseat pur- should be noted (i.e., ‘‘not substan- chased to complement a particular tiated’’). hutch, are never considered part of a (13) OBS: Obsolescence. A percentage set. When a component part of a set is was deducted for obsolescence. missing or destroyed and cannot be re- (14) PCR: Lost potential carrier recov- placed with a matching item, or has to ery. A deduction was made for lost be repaired so that it no longer PCR. matches other component parts of the (15) PED: Preexisting damage. A deduc- set, the following rules apply: tion was made for PED. (1) The set is no longer useful for its in- (16) PP: Purchase price. The purchase tended purpose. When a set is no longer price was used to value the loss. Nor- useful for its intended purpose because mally, the purchase price is not an ade- component parts are missing or de- quate measure of the claimant’s loss. stroyed the entire set may be replaced. If, however, the claimant used the re- Note that several firms will match dis- placement cost of a dissimilar item or continued sets of china and crystal and otherwise failed to substantiate the re- that replacement of the set is not au- placement cost, a recent purchase price thorized if replacement items can be may be used at the discretion of claims thus obtained. Generally, with china personnel, if a true replacement cost is and crystal the value of the set as a not available. whole is not destroyed unless more

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than 25 percent of the place settings ize shipment of a mobile home that has are unusable. Exceptions may be made not been placed in a fit condition to be if the claimant can demonstrate a par- shipped. ticular need for a certain number of (1) Transportation counseling prior to place settings because of family size or shipment. Servicemembers should be social obligations. In those rare in- advised of the following: stances when an entire set is replaced, (i) They are responsible for placing the claimant will be required to turn in the mobile home and its tires, tubes, undamaged pieces. frames, and other parts in fit condition (2) The set is still useful for its intended to ship and for loading the mobile purpose. When missing pieces cannot be home to withstand the stresses of nor- matched and there is measurable de- mal transportation. They will not be crease in the value of the set, but the compensated for any damage that re- set is still useful for its intended pur- sults either from a latent defect in the pose, the claimant is awarded the value construction of the mobile home (ex- of the missing pieces plus an amount cept when the carrier is aware of the for the diminution in value of the set defect and the servicemember is not) or as a whole. The amount awarded as an from their failure to place the mobile LOV will vary depending on the exact home in fit condition to ship. circumstances. (ii) They are responsible for paying (3) Mattresses and upholstered furniture for necessary repairs en route. Such re- are recovered. A mattress and box pairs can amount to several hundred or spring set is covered during normal even several thousand dollars, and use. Such sets are still useful for their some mobile homes have been left in intended purpose if one piece of the set storage at the servicemember’s expense has to be recovered in a different fab- hundreds of miles from destination be- ric. No award will be made for the cause the owner could not pay for nec- undamaged piece. When one piece of a essary repairs. set of upholstered furniture suffers damage that cannot be repaired or re- (iii) They are responsible for reseal- covered in matching fabric, recovering ing the roof and weatherproofing the the entire set or recovering the dam- mobile home after delivery. The cost of aged piece plus LOV should be consid- this is not compensable, nor is any ered. Factors to take into account in- damage caused by the servicemember’s clude the value of the set, PED to the failure to have it done. set, the nature of the current damage, (iv) They are responsible for remov- and the extent to which the claimant’s ing obstructions, grading the roadway, furniture is already mismatched. or otherwise preparing the site to (g) Mobile homes. Mobile homes make it accessible for the carrier’s present special problems. Most mobile equipment at both origin and destina- homes, particularly larger ones, are tion. not built to withstand the stress of (v) Because of the risk that damage multiple long moves. While the Mobile will result for which they cannot be Home One-Time Only rate solicitation compensated, servicemembers should program, effective 1 November 1987, strongly consider purchasing private may have reduced the incidence of loss insurance coverage. A claimant usually and damage by encouraging carriers to must purchase separate insurance for use extra axles when necessary, mobile property shipped inside the mobile home shipments can result in enor- home and most mobile home carriers mous, uncompensated losses for will sell some sort of insurance cov- servicemembers and present unusual erage for damage to the mobile home difficulties for claims adjudicators. Be- itself. Often, when a mobile home has cause the risk is so great, claims of- been moved repeatedly, the risk of un- fices must coordinate with their serv- compensated loss is so high that the icing transportation offices to ensure servicemember should consider selling both that servicemembers shipping mo- the home rather than attempting to bile homes are advised of the risk and ship it. of their responsibilities, and that the (2) Inspection Prior to Shipment. Trans- transportation office does not author- portation personnel should inspect the

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home prior to shipment in all in- (4) Substantiation of a claim. Prior to stances. All defects should be recorded. adjudication of such claims, the mobile In particular: home should be inspected and the fol- (i) A mobile home should not be lowing evidence obtained, if possible: shipped with a servicemember’s fur- (i) DD Form 1800 (Mobile Home Ship- niture and other household goods in- ment Inspection at Destination). This side. The maximum safe weight of ap- document shows the condition of the pliances and additional property is home at origin prior to shipment. This very low. An overweight mobile home document is prepared by the Transpor- tends to blow tires and break apart tation Office (TO) and is signed by the during shipment. Servicemembers servicemember, the carrier’s represent- should be advised long before shipment ative, and the Government inspector. that they will have to make other ar- It is vital and a claim should not be rangements for shipping such items at paid without it. At destination, dam- their own expense. ages noted at delivery should be anno- (ii) A mobile home should never be tated and the form dated and signed by shipped with defects in the steel frame the driver and the servicemember. or tow hitch. Damages may be listed on this form or (iii) The condition of all tires should on the DD Form 1840 (Joint Statement be checked and recorded. Some carriers of Loss or Damage at Delivery). (ii) DD Form 1863 (Accessorial Services- submit huge bills for ‘‘blown’’ tires dur- Mobile Home). For shipments after 1 No- ing shipment. vember 1987, DD Form 1863 lists all (iv) Structural changes to the inte- services the carrier is required to pro- rior of the home, particularly those vide, including line-haul, payment of that involve cutting through beams, tolls, overdimension charges, permits should be examined closely and a civil and licenses, provision of anti-sway de- engineer should be called in to render vices, axles with wheels and tires, tem- an opinion. Frequently, it is not safe to porary lights, and escort services. All ship mobile homes in which the claim- costs and services may not appear on ant has altered the interior framing. the GBL. For shipments prior to 1 No- (3) Latent Defects. Many carriers will vember 1987, damages may also be list- attempt to escape liability by attrib- ed on this form. uting all damage to latent manufac- (iii) DD Form 1840/1840R. Beginning 1 turing defects. A loss due to such a de- November 1987, later-discovered dam- fect, like a loss due to any other me- ages must be listed on DD Form 1840R chanical defect, is not considered inci- and dispatched to the carrier within 75 dent to service. When an engineer’s re- days of delivery. Timely notice on mo- port or other evidence shows that dam- bile home shipments differs slightly age was indeed caused by a defect rath- from such notice on other shipments. er than by the carrier’s failure to take Item 306 of the carrier’s rate solicita- the necessary care, the following rules tion provides that ‘‘upon delivery by apply: the carrier, all loss of or damage to the (i) If both the carrier and the claim- mobile home shall be noted on the de- ant knew or should have known of the livery document, the inventory form, defect, and if the claimant took no cor- the DD Form 1800, and/or the DD Form rective action and had the mobile 1840. Late discovered loss or damage, home shipped anyway, the claim is not including personal property within the payable. mobile home, will be noted on the DD (ii) If the carrier knew or should have Form 1840R not later than 75 days fol- known of the defect, and the claimant lowing delivery and shall be accepted could not reasonably have been ex- by the carrier as overcoming the pre- pected to know of it, the claim is pay- sumption of correctness of delivery re- able and liability should be pursued ceipt.’’ against the carrier. (iv) DD Form 1412 (Inventory of Items (iii) If neither the claimant nor the Shipped in Housetrailer). Prior to 1 No- carrier could reasonably be expected to vember 1987, the servicemember pre- know of the defect, the claim is not pared DD Form 1412. After 1 November payable. 1987, the carrier is required to prepare

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this in coordination with the opinions prepared by qualified engi- servicemember. neers. The claimant may not be com- (v) DD Form 1841. If a Government pensated for services the carrier failed representative does not inspect the mo- to perform or performed improperly or bile home at delivery, an inspection for other incidental expenses. The should be requested. claimant should be referred to the (vi) Driver’s statement. The mobile transportation office for these. Such home carrier should be requested to services (listed on DD Form 1843 and provide (within 14 days) a statement the GBL correction notice) include: from the driver of the towing vehicle (i) Escort or pilot services, ferry fees, explaining the circumstances sur- tolls, permits, overdimension charges, rounding the damage as well as de- or taxes. tailed travel particulars. If the mobile (ii) Storage costs or parking fees en home carrier does not respond, the file route. should be so annotated. Such state- (iii) Expand charges and charges for ments are often self-serving and should anti-sway devices, brakes and brake re- be reviewed critically to determine pairs, or adding or replacing axles, whether the carrier is attributing dam- tubes, or tires. age to a latent defect. (iv) Wrecker service. (vii) The claimant Owner’s statement. (v)Connecting or disconnecting utili- should provide a statement concerning ties. the age of the mobile home, the date (vi) Blocking, unblocking, or remov- and place purchased, any prior damage ing or installing skirting. or repairs, all prior moves, and prior claims. (vii) The cost of separating or re- (viii) Estimates of repair. When pos- assembling and resealing a double-wide sible, the claimant should obtain two mobile home. estimates of repair from firms in the (6) Carrier liability and attempted waiv- business of repairing, rather than sell- ers. In the absence of additional cov- ing, mobile homes. Such estimates erage, the carrier’s maximum liability should list the approximate value of for personal property shipped with the the home before and after damage, a mobile home is $250.00. The carrier is detailed breakdown of the repairs need- fully liable for damages to the mobile ed and their cost, and the cause of home itself. Carriers are also liable for damage. damage caused by third parties with (ix) Engineer’s statement. Where the whom they contract, such as wrecker facts indicate the possibility of a la- services. Some carriers may still try to tent defect, the claimant should be as- obtain waivers, from the sisted in obtaining a statement from a servicemember. A waiver signed by the qualified engineer or vehicle mainte- servicemember, however, is not binding nance professional with expertise in on the United States. The Navy is the mobile homes explaining the cause of contracting party and the owner has damage. The claims office should co- not authority to sign a waiver agree- ordinate in advance with facilities en- ment or any other document pur- gineers or with local reserve units with porting to exempt the carrier from the engineering expertise to provide such liability imposed under the GBL. inspection where possible. (5) Compensable damage. In adjudi- § 751.13 Payments and collections. cating the claim, the claimant may be Payment of approved personnel paid for loss of or damage to the mobile claims and deposit of checks received home except when the damage is due to from carriers, contractors, insurers, or a latent defect, to the servicemember’s members will be made by the Navy or failure to place the home in fit condi- Marine Corps disbursing officer serving tion to ship, or to the servicemember’s the adjudicating authority. Payments failure to have the roof resealed. The will be charged to funds made available servicemember may also be com- to the adjudicating authority for this pensated for the reasonable cost of re- purpose. Credit for collections will be pair estimates provided by firms in the to the accounting data specified in business of mobile home repair and of Navy Comptroller Manual section

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046370, paragraph 2 or in superseding nally adjudicated by the commanding messages, if applicable. offer, the files will be forwarded to the Judge Advocate General for final ac- § 751.14 Partial payments. tion. The claimant shall be notified of (a) Partial payments when hardship ex- this action either by letter or by copy ists. When claimants need funds to feed, of the letter forwarding the file to clothe, or house themselves and/or higher adjudicating authority. The for- their families as a result of sustaining warding letter shall include a synopsis a compensable loss, the adjudicating of action taken on the file and reasons authority may authorize a partial pay- for the action or denial, as well as a ment of an appropriate amount, nor- recommendation of further action or mally one-half of the estimated total denial. payment. When a partial payment is (b) Files forwarded to JAG. For files made, a copy of the payment voucher forwarded to JAG in accordance with and all other information related to § 751.15(a), the forwarding endorsement the partial payment shall be placed in shall include the specific reasons why the claim file. Action shall be taken to the requested relief was not granted ensure the amount of the partial pay- and shall address the specific points or ment is deducted from the adjudicated complaints raised by the clamant’s re- value of the claim when final payment quest for reconsideration. is made. (c) Appeals procedure for claims sub- (b) Marine hardship payments. The mitted by Marine Corps personnel. Where Marine claimant’s Transportation any of the Marine Corps adjudication Management Office (TMO) shall ensure authorities listed in § 751.8(b) fail to compliance with all requirements of grant the relief requested, or otherwise § 751.14(a), and may request authority resolve the claim the satisfaction of for payment by message from the Com- the claimant, the request for reconsid- mandant of the Marine Corps (MHP– eration shall be forwarded together 40). with the entire original file and the ad- (c) Effect of partial payment. Partial judicating authority’s recommenda- payments are to be subtracted from the tion, to the Judge Advocate General. adjudicated value of the claim before payment of the balance due. Overpay- §§ 751.16–751.20 [Reserved] ments are to be promptly recouped. Subpart B—Demand On Carrier, § 751.15 Reconsideration and appeal. Contractor, or Insurer (a) General. When a claim is denied either in whole or in part, the claimant § 751.21 Scope of subpart B. shall be given written notification of a Subpart B addresses the recovery the initial adjudication and of the process for loss or damage occurring right to submit a written request for during the storage or transport of reconsideration to the original adjudi- household goods and other personal cating authority within 6 months from property for which military personnel the date the claimant receives notice and civilian employees were paid under of the initial adjudication of the claim. the provisions of 31 U.S.C. 3721. The au- If a claimant requests reconsideration thority for pursuing recovery action is and if it is determined that the original found at 31 U.S.C. 3711. action was erroneous or incorrect, it shall be modified and, when appro- § 751.22 Carrier recovery: In general. priate, a supplemental payment shall (a) Responsibility. Recovery of be approved. If full additional payment amounts due for personal property lost is not granted, the file shall be for- or damaged while in transit or in stor- warded for reconsideration to the next age at Government expense is a joint higher adjudicating authority. The Personal Property Office/Naval Legal next higher adjudicating authority Service Office responsibility. In order may be the commanding officer of the to establish liability and to effectively Naval Legal Service Office if a properly pursue a recovery claim against a car- delegated subordinate has acted ini- rier, warehouseman, or other third tially on the claim. For claims origi- party, it is essential that all required

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action be accomplished in an expedi- Property, from the transportation of- tious manner. Failure of the property fice. owner or any Government agent to ex- (7) When necessary, DD Form 619–1, ercise diligence in the performance of Statement of Accessorial Services Per- duties may render collection of the formed, from the transportation office. claim impossible and thereby deprive (d) Carrier inspection. Claims office the Government of rightful revenue. personnel should inform claimants that Claims approving and settlement au- the carrier has the right to inspect thorities will ensure that all actions damaged goods within 75 days of deliv- required of the property owner and ery, or 45 days of dispatch of DD Form naval personnel are accomplished 1840R, whichever is later, and that promptly. damaged items must be held out for (b) Elements of collection. There are carrier inspection during that period. four elements in the successful asser- Essential items such as washer, dryer, tion and collection of a recovery claim. television etc., may be repaired prior They are: to that time if necessary. (1) Proving that a transit loss oc- (e) Repair estimates. Claims personnel curred; must ensure that repair estimates de- (2) Determining who had responsi- scribe the specific location and damage bility for the goods at the time of the claimed and that the same damage is transit loss; claimed on DD Form 1844, Schedule of (3) Calculating the amount of dam- Property and Claims Analysis Chart. ages; and Repair estimates that merely note ‘‘re- (4) Pursuing the responsible party or finished’’ or ‘‘repaired’’ are not accept- parties vigorously. able. (f) DD Form 1844. Claims personnel § 751.23 Responsibilities. must ensure that DD Form 1844 is prop- (a) Notice of loss. Claims office per- erly completed with the nature and ex- sonnel must ensure that Notice of Loss tent of the loss or damage to each item or Damage, DD Form 1840R, is properly fully described, the correct inventory completed and dispatched to the liable numbers supplied, and correct item third party or parties within 75 days of weights utilized from the Military-In- delivery of the property. dustry Table of Weights (when these (b) Counseling of claimant. Claims of- weights are required for the code of fice personnel should coordinate with service involved). the local personal property office to (g) Demands on third parties. Claims ensure proper counseling regarding po- personnel must ensure that written de- tential claim procedures. mands against appropriate third par- (c) Documents. Claims office per- ties are prepared as described in § 751.26 sonnel must obtain from the claimant and § 751.27. No demand will be made or from the transportation office the where it conclusively appears that the following documents needed to process loss or damage was caused solely by recovery actions: Government employees or where a de- (1) A copy of the GBL or other docu- mand would otherwise be clearly im- ment used for shipment or storage. proper under the circumstances. If it is (2) A copy of the inventory. determined that a demand is not re- (3) A copy of the DD Form 1840 and quired, a brief written statement set- DD Form 1840R. ting forth the basis for this determina- (4) Where storage in transit was ex- tion will be included on the chronology tended from 180 days to 270 days, a copy sheet. Pursuant to the Joint Military- of the authorization from the transpor- Industry Agreement on Claims of $25.00 tation office allowing this extension at or Less, claims of $25.00 or less will not Government expense. be pursued because administrative (5) Where storage converted from costs outweigh recovery proceeds. Government paid storage to storage at owner’s expense, a copy of the claim- § 751.24 Notice of loss or damage. ant’s contract with the warehouse. (a) Exceptions. The claimant is re- (6) When necessary, a copy of DD quired to take exceptions and note any Form 1164, Service Order for Personal loss of damage at the time of delivery

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on the DD Form 1840 (Joint Statement carrier’s released valuation (the car- of Loss or Damage at Delivery). Later rier’s maximum liability for loss and discovered damage must be noted on damage) increased from $.60 per pound the DD Form 1840R (Notice of Loss or per article to $1.25 multiplied by the Damage) and delivered to the claims net weight of the shipment ($2.50 for office or Personal Property Office with- shipments to and from Alaska). For in 70 days of delivery. Failure to take Codes 1 and 2 shipments picked up exceptions at delivery and note and re- prior to these dates, carrier liability port later discovered damage will re- remains at $.60 per pound per article sult in deduction on any lost potential and is calculated the same as for Code carrier recovery from payment of the 4 shipments. There are also two higher claim. Failure to note on the DD Form levels of coverage available in which 1840 items missing at the time of deliv- the owner pays the difference between ery may result in denial of claims for the basic coverage and the higher level those items. requested: High or higher increased re- (b) DD Form 1840/1840R. The DD Form leased valuation (Option 1) and full re- 1840/1840R is printed in carbon sets of placement protection (Option 2). These five with DD Form 1840 on the front higher carrier released valuation rates side and DD Form 1840R on the reverse only apply to Codes 1 and 2 shipments side. DD Form 1840/1840R is provided by and they do not affect the liability of a the carrier to the member at delivery. non-temporary storage (NTS) ware- Carriers were required to use this re- house which remains at $50.00 per line vised DD Form 1840/1840R beginning 15 item. August 1988 for international ship- (1) Increased Released Valuation (IRV). ments and 15 September 1988 for domes- IRV is the basic valuation for service tic shipments. This is the only docu- Codes 1 and 2 and is fully paid by the ment the carriers will accept for re- Government. If the claimant is due ad- porting loss and damage to household ditional recovery money, the words goods. The requirement to list all know ‘‘claimant due carrier recovery’’ must loss and damage at the time of delivery be added on the claims file to ensure on the DD Form 1840 is a joint respon- the recovered amount is provided to sibility of the claimant and the carrier. the claimant if eligible. IRV is not re- If the carrier fails to give the claimant flected on the GBL by an special lan- a DD Form 1840 at the time of the de- guage. For Codes 1 and 2 shipments livery, the carrier is liable for all dam- picked up after the effective dates age and does not have to be notified in mentioned above, the carrier’s released the 75-day timeframe valuation is $1.25 multiplied by the new (c) Military-Industry Memorandum of weight of the shipment ($2.50 multi- Understanding on Loss and Damage plied times the net weight of the ship- Rules. The Military-Industry Memo- ment for shipments to and from Alas- randum of Understanding on Loss and ka). For example, if the weight of an Damage Rules became effective in 1985 IRV shipment moved from Kansas to with the implementation of the new New York is 10,000 pounds, the most DD Form 1840/1840R. This document the carrier could be held liable for should be thoroughly studied and com- would be $12,500 (10,000 pounds times pletely understood. $1.25=$12,500). If the same shipment was moved from Alaska to New York, the § 751.25 Types of shipments and liabil- maximum carrier liability would in- ity involved. stead be $25,000 (10,000 pounds times (a) Codes 1 and 2 (domestic including $2.50=$25,000). Alaska). Increased released valuation, (2) Higher Increased Released Valuation also referred to as ‘‘Basic Coverage,’’ be- (Option 1). This type of coverage may came effective within CONUS and Alas- be purchased by an owner who desires ka on 1 April 1987 for intrastate ship- protection for items whose value ex- ments (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 427

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be added in the claims file. Option 1 maximum allowances. The claimant must be annotated on the original should be informed that any additional GBL. A GBL correction notice is ac- amount will be forwarded after recov- ceptable only if the carrier or his agent ery action is effected against the car- has notice of the correction before rier. Option 2 must be annotated on the pick-up. Option 1 may be listed in original GBL. A GBL correction notice block 27 or block 30 either as a lump is acceptable only if the carrier or his sum, such as ‘‘Option 1—$30,000,’’ or as a agent receives notice of the correction multiple, such as ‘‘Option 1—$3.00 times before pick-up. Option 2 may be listed the net weight.’’ The carrier’s max- in block 27 or block 30 either as a lump imum liability is whatever higher valu- sum, such as ‘‘Full Replacement Pro- ation the claimant places on the ship- tection—$50,000.00,’’ or as a multiple, ment. For example: The owner of a such as ‘‘Full Replacement Protec- 10,000 pound shipment requests Option tion—$3.50 times the net weight.’’ The 1 coverage of $30,000.00 and has this carrier’s maximum liability is the listed on the GBL. The carrier’s max- higher valuation the claimant places imum liability is $30,000.00. Under basic on the shipment. For example: The coverage, the carrier’s maximum li- owner of a 10,000 pound shipment re- ability for this shipment would only be quests full replacement protection of $12,500.00. The claimant must initially $3.50 times the net weight of the ship- file a claim with the carrier. The Gov- ment and has this listed on the GBL. ernment will only accept a claim if the The carrier’s maximum liability is carrier denies the claim, if delay would $35,000.00 (10,000 pounds times cause hardship, or if the carrier fails to $3.50=$35,000.00). Under basic coverage, satisfactorily settle the claim within 30 the carrier’s maximum liability for days. The claim is adjudicated in the this shipment would only be $12,500.00. normal fashion, applying depreciation (4) Calculating liability on IRV, Option and maximum allowances. Demand is 1, and Option 2 shipments. (i) Under IRV then made on the carrier for the full and Option 1, the carrier’s maximum li- value of the item lost or damaged. ability for loss or damage to a single When recovery is effected, the Govern- item is limited to the repair cost or de- ment keeps an amount equal to that preciated replacement cost of the item. paid to the claimant and disperses the Under Option 2, the carrier’s maximum remaining recovery to the claimant. liability for a single item is the repair (3) Full Replacement Protection (Option cost or the undepreciated replacement 2). This type of coverage may be pur- cost of the item. The carrier’s max- chased by an owner who desires protec- imum liability for the entire claim is tion for items whose value exceeds a limited to the released valuation, maximum allowance, for a shipment which is either the lump sum declared whose value exceeds the statutory by the owner or the net weight of the maximum, or because the claimant shipment times the applicable multi- does not wish to have the replacement plier. The net weight of the shipment is cost of destroyed or missing items de- normally listed in block 4 of DD Form preciated to their fair market value. 1840 (block 3 of DD Form 1840 dated The minimum coverage available under September 84). If the net weight is Full Replacement Protection is missing, it should be obtained from the $21,000.00 or $3.50 times the net weight transportation office. of the shipment, whichever is greater. (ii) In completing the carrier liabil- A member who chooses this coverage ity section of DD Form 1844, ignore the must initially file a claim with the car- Joint Military-Industry Table of rier, allowing the carrier the right to Weights. Assert the amount adju- repair or replace items. The Govern- dicated on each item for which the car- ment will only accept a claim if the rier is liable in the carrier liability col- carrier denies the claim, if delay would umn. Where the Government payment cause hardship, or if the carrier fails to was limited by application of a max- satisfactorily settle the claim within 30 imum allowance (or by depreciation on days. If a claim is submitted to the full replacement cost claims), assert Government, the claim is adjudicated the full, substantiated value. Total the normally, applying depreciation and amounts for which the carrier is liable

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in the carrier liability column. If this ping containers (wooden boxes) and total exceeds the maximum carrier li- where a carrier provides line-haul serv- ability for the entire claim, the max- ice from origin residence to a military imum carrier liability should be en- ocean terminal. The Government, tered on DD Form 1843 as the amount through the Military Sealift Command demanded. Do not, however, change the (MSC), provides ocean transportation total of the amounts for which the car- to the designated port of discharge, and rier is liable on the DD Form 1844. the carrier provides line-haul service (iii) If the amount the claimant re- to the destination residence. ceives from the Government is limited (2) A Code T shipment is the move- by application of a maximum allow- ment of household goods where the car- ance (or by depreciation on full re- rier provides containerization at origin placement protection claims) leaving and transportation to the designated the claimant with an uncompensated Military Airlift Command (MAC) ter- loss, the claimant may be due reim- minal. MAC provides terminal services bursement from recovery money after at both origin and destination, and air recovery is effected on the claim. transportation to a designated MAC Claimants with uncompensated losses terminal. The carrier provides trans- who have basic coverage are only enti- portation to the destination residence. tled to reimbursement from recovery (3) On Code 5 and T shipments, it is money if the amount recovered exceeds often difficult to decide whether the the amount paid by the Government Government or the carrier was in ac- (unless the loss was in excess of the tual custody of the shipment at the statutory maximum). Claimants with time of loss or damage. In order to re- uncompensated losses who purchased duce liability disputes in such situa- Option 1 or Option 2 are entitled to re- tions, a 50-percent compromise agree- imbursement up to the value of their ment between industry and the mili- additional coverage. Such files should tary has been reached. be marked: ‘‘claimant due carrier re- (4) When the 50-percent compromise covery.’’ The claimant should be in- is appropriate or applicable, the DD formed that recovery from the carrier Form 1844 is prepared in the normal is dependent on the amount and qual- fashion utilizing weights indicated in ity of the substantiation the claimant the Military-Industry Table of Weights provided, and that the actual recovery multiplied by $.60 per pound. Two dif- may be less than anticipated. The ferent sums should be listed for carrier claimant should further be informed liability at the bottom of the DD Form that considerable time will elapse be- 1844, the amount of liability due under fore recovery is effected and reimburse- the 50-percent compromise and the full ment made. Such claims should be amount that will be offset if carrier processed for recovery action as expe- fails to pay, e.g., ‘‘$100.00 Code T, $200.00 ditiously as possible. Full Liability.’’ This same computation (b) Codes 4 and 6 (International and should be reflected in the ‘‘amount of Hawaii). On Codes 4 and 6, inter- claim’’ box on DD Form 1843 (Demand national GBL shipments, carrier liabil- on Carrier/Contractor). If a carrier re- ity is computed at $.60 per pound mul- fuses to make a satisfactory settle- tiplied by the weight of the article or ment or fails to make a timely re- carton as prescribed by the Joint Mili- sponse to the demand, the carrier’s full tary-Industry Table of Weights. In liability will be collected. cases where the entire shipment is lost (d) Codes 7, 8, and J (Unaccompanied or damaged, liability will be computed Baggage Shipments). Gross Weight Rules. on the net weight of the shipment Government payment to the carrier for times $.60 per pound. The net weight of transportation of unaccompanied bag- the shipment may be obtained from the gage (Codes 7, 8, and J) is based upon origin transportation office. gross weight of the shipment. Unless (c) Codes 5 and T (International and the inventory is prepared as a ‘‘Proper Hawaii). (1) A Code 5 shipment is the Household Goods Descriptive Inven- movement of household goods in Mili- tory,’’ computation of carrier liability tary Traffic Management Command for loss or damage incurred in a Code 7, (MTMC) approved door-to-door ship- 8, or J shipment will also be based upon

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gross weight. Gross weight is defined as chase order prepared by the transpor- the total weight of all articles, includ- tation office which lists the services ing necessary packing materials and required of the carrier in accordance packing containers. The shipping con- with the provisions of the Federal Ac- tainer is the external crate (tri-wall or quisition Regulation (FAR). The pur- other Government approved container) chase order usually includes packing into which individual articles and/or and picking up the goods at origin resi- packing cartons are placed. For the dence or from storage, transporting the majority of claims, liability will be as- goods within a designated distance, and serted on gross weight of the container. delivering and unpacking the goods at (2) Baggage shipments prepared using a destination. All these services are per- ‘‘Proper Household Goods Descriptive In- formed under the authority of one pur- ventory.’’ The Joint Military/Industry chase order and will usually be accom- Table of Weights will apply to Code 7, plished the same day or within a few 8, or J unaccompanied baggage ship- days of pickup. Timely notice must ments if the inventory has been pre- exist in order to pursue carrier recov- pared as a ‘‘Proper Household Goods ery and liability is usually based on a Descriptive Inventory,’’ in accordance released valuation of $.60 per pound per with Paragraph 54 of the Tender of article. The Joint Military/Industry Service for Personal Property House- Table of Weights is used to calculate li- hold Goods and Unaccompanied Bag- ability. There is no insurance coverage gage (DOD 4500.34–R, appendix A). A required on local contractors; if the properly prepared inventory should re- local contractor is no longer in busi- flect the size of each individual carton, ness or bankrupt, the file may be give a general description of carton closed. contents, and note preexisting damage. (2) Direct delivery from NTS. In cir- The complete inventory, not just a por- cumstances where one contractor is re- tion, must have been prepared as a sponsible for pick-up, NTS, and deliv- proper household goods inventory. If an ery of the shipment, liability for loss inventory is only partially prepared as or damage is assessed against that car- a proper household goods descriptive rier. Nontemporary storage of house- inventory, gross weight will be used. hold goods requires completion of DD (e) Local moves and NTS. There are Form 1164 (Service Order for Personal basically two types of NTS shipments: Property) in accordance with the provi- A direct delivery from NTS by the sions of the Basic Ordering Agreement same company that stored the property (BOA). The ‘‘handling-in’’ portion of the and a delivery from NTS which was shipment is accomplished by issuance picked up at the warehouse by a GBL of the Initial Service Order, DD Form carrier. Direct deliveries of household 1164. The goods are usually stored for a goods from NTS are often erroneously period of 6 months to 4 years. The construed as local moves. It is some- ‘‘handling-out’’ and post-storage serv- times difficult to tell the difference be- ices are accomplished by a supple- tween the two since a shipment deliv- mental service order. These are usually ered from NTS by the warehouseman is long term storage, short distance usually also a short distance (local) moves processed under the authority of move. The type of contract involved at least two documents: the initial determines whether or not the ship- service order and the supplemental ment is considered a local move, a di- service order. The BOA states that the rect delivery from NTS, or a carrier de- contractor shall be liable ‘‘in an livery picked up from NTS. These dis- amount not exceeding fifty dollars tinctions are important since different ($50.00) per article or package listed on liability is involved. the warehouse receipt or inventory (1) Local move. A local move is a ship- form’’ (i.e., $50.00 per inventory line ment performed under a local contract item). that authorizes property to be moved (3) Carrier delivery picked up from NTS. from one residence to another within a The NTS portion of the shipment re- specified area (usually a move from off quires completion of an Initial Service base to on base, or the reverse). The Order, DD Form 1164, to accomplish the contract for a local move is the pur- ‘‘handling-in’’ of the goods into the 430

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warehouse for storage, as prescribed by H, K, N, P, R, W, X, or Y. These two the provisions of the BOA. When stor- letter codes identify the GBL as a DPM age is terminated, the ‘‘handling-out’’ contract. and post-storage services are accom- (ii) Block 18, ‘‘consignee,’’ and Block plished by issuance of a GBL in accord- 19, ‘‘from,’’ on the GBL contain the ance with the tender of service. The name and address of another carrier or GBL may be issued to a different com- transportation office rather than the pany or in some cases to the same com- name and address of the claimant. pany that stored the goods. These are (iii) Block 27, ‘‘description of ship- long-term storage, long-distance moves ment,’’ on most GBL’s contains the processed under the authority of two statement, ‘‘household goods released documents: the initial service order at a value of 10 cents per pound per ar- and the GBL. Liability is assessed en- ticle.’’ This refers to the motor freight tirely against the delivering carrier at carrier’s liability only. The origin and whatever rate is appropriate for the destination contractors’ liability is code of service involved, unless the car- still $.60 per pound times the weight of rier prepares an exception sheet (rider) the article or carton, as indicated in noting damage or loss at the time the the Joint Military/Industry Table of goods are picked up from the ware- Weights. house. The exception sheet must be (iv) If liability lies against the motor signed by a warehouse representative. freight carrier, the term ‘‘article’’ is de- If a valid exception sheet exists, liabil- fined 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 relieve the carrier from liability as a car- cle. rier. If either the carrier alone, or both (3) Since 1 January 1981 the destina- the carrier and the NTS facility, fail to tion contractor has been held liable for pay their proper liability, the file is loss and damage unless it can prove forwarded to the Naval Material Trans- that it is not at fault, i.e., took excep- portation Office, (NAVMTO), Norfolk, tions prior to receipt of goods. The Virginia for offset action. motor freight carrier is liable for any (f) Direct Procurement Method (DPM). damage or loss noted against it during (1) A DPM move is a method in which its portion of the move. If the motor the Government manages the shipment freight carrier has noted specific dam- from origin to destination. Contracts age when it received the shipment, li- are issued to commercial firms for ability is charged against the origin packing, containerization, local contractor at $.60 per pound times the drayage, and storage services, or Gov- weight of the article or carton. Damage ernment facilities and employees pro- noted against the origin contractor or vide these services. Separate arrange- motor freight carrier should be indi- ments are made with carriers and sepa- cated on a valid shipping document and rate documents are issued for each seg- generally involves distinct damage to ment throughout. DPM contractors are or missing containers. These docu- also known as packing and crating ments must be signed by all parties in- (P&C) contractors, as local drayage volved in the transfer of the goods. contractors, or just as local contrac- (4) The destination contractor must tors. receive timely notice of loss or damage (2) GBL’s for DPM shipments are usu- via DD Form 1840/1840R and a demand ally only issued to motor freight car- packet. If exceptions were taken riers. against the origin contractor or motor (i) Block 3 on the GBL entitled ‘‘serv- freight carrier on a transfer document, ice code’’ will contain the letters A, B, they should receive only demand pack- H, or V, followed by a second letter A, ets.

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(5) In determining destination or ori- other mobile home carrier for trans- gin contractor’s liability, the term port, the first carrier will continue to ‘‘article’’ has been defined as each ship- be shown on the GBL and is responsible ping carton or container and the con- for the mobile home from pickup to de- tents thereof, less any exterior crate or livery. The carrier is also responsible shipping carton. The net weight of each for damage caused by third parties it article (carton or box) packed within engages to perform services such as the exterior crate or carton may be auxiliary towing and wrecking. used to determine the contractor’s li- (iv) Water damage. Water damage to a ability for a damaged or missing item double-wide or expando-type mobile originating out of that carton. home is usually due to the carrier’s (6) Claims offices should obtain a failure to provide sufficient protection copy of the DPM contract from the against an unexpected rainstorm. Car- local contracting office or transpor- riers will often assert that this damage tation office in order to identify which is due to an ‘‘act of God’’ and attempt to company has the DPM contract and avoid liability. It is, however, the car- verify the limits of the liability clause. rier’s responsibility to ensure safe Contracts are awarded on a calendar- transit of the mobile home from origin year basis. to destination. Not only should car- (g) Mobile homes. Mobile home claims riers be aware of the risk of flash floods represent such a small percentage of and storms in certain locales during claims received that claims personnel certain seasons, but a carrier is sup- are often unfamiliar with the require- posed to provide protective covering ments and documentation necessary to over areas of the mobile home exposed process such claims. For an expla- to the elements. Carrier recovery nation of the adjudication of such should be pursued for water damage to claims and the forms used to effect these types of mobile homes. shipment, see § 751.12(g) above. (v) Waivers signed by the claimant. The (1) Carrier liability—(i) For damage to carrier may attempt to escape liability the mobile home. Carrier liability for by having the owner execute a waiver damage to a mobile home is generally of liability. Such waivers are not bind- the full cost of repairs for damage incurred during transit. A mobile home ing upon the United States. carrier is excused from liability when (vi) Extensions of storage in transit the carrier can introduce substantial (SIT). The extension of SIT past 180 proof that a latent structural defect days is only applicable to household (one not detectable during the carrier’s goods and holdbaggage shipments. It is preliminary inspection) caused the loss not applicable to the shipment of mo- or damage. bile homes. If a mobile home remains (ii) For damage to contents. The car- in SIT past 180 days, storage is at the rier’s liability for loss or damage to owner’s expense. household or personal effects inside the (2) Notice. Item 306 of the carrier’s mobile home (such as clothing and fur- rate solicitation states that: ‘‘Upon de- niture. or furnishings which were not livery by the carrier, all loss of or dam- part of the mobile home at the time it age to the mobile home shall be noted was manufactured) is limited to $250.00 on the delivery document, the inven- unless a greater value is declared in tory form, the DD Form 1800, and/or writing on the GBL. Under the Mobile the DD Form 1840. Late(r) discovered Home One-Time-Only (MOTO) rate sys- loss or damage, including personal tem, effective for shipments after 1 No- property within the mobile home, will vember 1987 the owner no longer pre- be noted on DD Form 1840R not later pares his own inventory. Under the than 75 days following delivery and MOTO system, the carrier in coordina- shall be accepted by the carrier as tion with the owner is required to pre- overcoming the presumption of cor- pare a legible descriptive inventory on rectness of delivery receipt.’’ Notifica- DD Form 1412, Inventory of Articles tion to the carrier may be made on any Shipped in House Trailer. of the documents. Claims personnel (iii) Agents of the mobile home carrier. will dispatch the DD Form 1840R in ac- If the shipment is transferred to an- cordance with § 751.14.

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(3) Preparation of demands. The car- storing or handling while in the cus- rier is liable for the full amount of sub- tody of the Government, no demand stantiated damage to the mobile home shall be made against the carrier. itself (less estimate fees), plus up to (b) Marine Corps claimants. For Ma- $250.00 for loss or damage to contents rine Corps claimants, the claims inves- (unless the claimant purchased in- tigating officer will prepare the claim creased released valuation on the con- against the carrier, contractor, and/or tents). Prepare a demand for this insurer and will mail it (together with amount. In addition to the DD Form the DD Form 1842 claim package) to 1843 and DD Form 1844, the demand the Commandant of the Marine Corps packet should include the following (MHP–40), who will submit and assume documents: the responsibility of monitoring the (i) DD Form 1800, Mobile Home In- claim against the carrier. spection Record; (c) NTS warehousemen. Whenever (ii) DD Form 1863, Assessorial Serv- property is lost, damaged, or destroyed ices, Mobile Home; while being stored under a basic agree- (iii) DD Form 1840/1840R, Joint State- ment between the Government and the ment of Loss or Damage at Delivery/ warehouseman, the claims inves- Notice of Loss; tigating officer, or appropriate Naval (iv) DD Form 1412, Inventory of Items Legal Service Command (NLSC) activ- Shipped in House Trailer; ity, shall file a written claim for reim- (v) DD Form 1841, Government In- bursement with the warehouseman spection Report; under the terms of the storage agree- (vi) Driver’s statement, from the ment. driver of the towing vehicle; (d) Insurer. When the property lost, (vii) Claimant’s statement con- damaged, or destroyed is insured, the cerning previous moves; claimant must make a demand against (viii) Estimates of repair, preferably the insurer for payment under the two, from firms in the business of re- terms of the insurance coverage within pairing mobile homes; and the time provided in the policy. If the (ix) Engineer’s statement, or state- amount claimed is clearly less than the ment by other qualified professionals. policy deductible, no demand need be (4) References. Chapter 3 and Appen- made. Failure to pursue a claim dix E of DOD 4500.34–R, pertain to mo- against available insurance will result bile home shipment and contain much in reducing the amount paid on the valuable information. Another source claim by the amount which could have is NAVSUP 490, Chapter 10 ‘‘Mobile been recovered from the insurer. When Homes of Military Personnel.’’ an insurer makes a payment on a claim in which the Government has made a § 751.26 Demand on carrier, con- recovery against the carrier or contractor, or insurer. tractor, the insurer shall be reimbursed (a) Carrier. When property is lost, a pro rated share of any money recov- damaged, or destroyed during shipment ered. under a GBL pursuant to authorized travel orders, the claims investigating § 751.27 Preparation and dispatch of officer or adjudicating authority demand packets. (whichever can more efficiently per- Demand on a carrier or contractor form the task) shall file a written shall be made in writing on DD Form claim for reimbursement with the car- 1843 (Demand on Carrier) with a copy of rier according to the terms of the bill the adjudicated DD Form 1844 (Sched- of lading or contract. This demand ule of Property) attached. shall be made against the last carrier (a) Demand packets. A demand is a known to have handled the goods, un- monetary claim against a carrier, con- less the carrier in possession of the tractor, or insurer, to compensate for goods when the damage or loss oc- loss or damage incurred to personal curred is known. In this event, the de- property during shipment or storage. mand shall be made against the respon- DD Form 1843 represents the actual de- sible carrier. If it is apparent the dam- mand. The demand packet is a group of age or loss is attributable to packing, documents, stapled together and sent

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to the liable third party. More than § 751.28 Assignment of claimants one demand packet should be prepared rights to the government. when more than one party is deemed to The claimant shall assign to the Gov- be liable. Do not use original docu- ernment, to the extent of any payment ments. Demand packets should be made on the claim, all rights and inter- mailed in official DON envelopes. No est the claimant may have against any demand packet should be prepared for contractor, carrier, or insurer or other claim files that have been closed or party arising out of the incident on when potential recovery is $25.00 or which the claim is based. The claimant less. In those cases the outside of file shall also furnish such evidence as may folders in the upper left-hand corner be required to enable the Government should be marked ‘‘CLOSED.’’ A de- to enforce its claim. If the claimant re- mand packet will include the fol- fuses to cooperate, steps may be taken lowing: to ensure return of monies paid on the item which the Government is trying (1) DD Form 1843, Demand on Carrier/ to collect. Contractor; (2) DD Form 1844, Schedule of Prop- § 751.29 Recoveries from carrier, con- erty and Claim Analysis Chart; tractor, or insurer. (3) DD Form 1841, Government In- (a) Recoveries. If a claimant receives spection Report (if available); payment from the Government under (4) DD Form 1164, Service Order for this instruction and also receives com- Personal Property (when applicable); pensation from a carrier, contractor, or (5) Copies of all repair estimates insurer for the same loss, the Govern- (translated from foreign languages); ment shall collect from the claimant and the amount necessary to prevent the (6) Copies of all other supporting doc- claimant from being compensated uments deemed appropriate. twice for the same loss. If the amount (b) Dispatch of demand packets. (1) The payable on a claim is less than the adjudicated value of the claim, excess re- demand packets are directly discoveries from carriers, and other third patched by the appropriate personal parties shall be paid to the member as property office or the Naval Legal long as the total amount paid does not Service Office to the third party. exceed the value of the claim as adju- (2) Privately Owned Vehicles (POV’s). dicated. Demands for loss or damage to POV’s (b) Recovered property. When lost will not be made directly against ocean property is found, the claimant may, at carriers operating under contract with his option, accept all or part of the the MSC. After payment is made to the property and return the full payment claimant, one copy of the complete or a pro-rated share of the payment re- claim file will be forwarded directly to ceived from the Government on the Commander, MSC. Each file shall in- claim for the recovered property. Sur- clude the following: rendered property shall be disposed of (i) The payment voucher; under applicable salvage and disposal (ii) The completed personnel claim procedures. forms; § 751.30 Settlement procedures and (iii) The estimated or actual cost of third party responses. repair; (a) Settlement procedures. In the inter- (iv) A document indicating the condi- est of expeditious office administra- tions of the items upon delivery to the tion, correspondence to carriers and carrier; and contractors should be kept to a min- (v) a document indicating the for- imum. Normally, one rebuttal to a warding condition of the POV upon its third party’s denial of liability is suffi- return to Government control. cient, unless the carrier or contractor The letter of transmittal should iden- raises new arguments or provides new tify the vessel by name, number, and if information. available, the sailing date. (1) Checks from third parties. Accept checks for the amount demanded from

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carriers and contractors. If a carrier or tractor’s basis for denying liability in contractor forwards a check for less the light of all the evidence. than the amount demanded, review the (i) Acceptable third party reasons for carrier’s arguments for reducing liabil- denial. Mark the front upper left-hand ity to determine if they are acceptable. corner of such files as ‘‘CLOSED.’’ If the third party’s basis for reducing (ii) Partially acceptable and unaccept- liability is acceptable in the light of all able third party reasons for denial. If the evidence, deposit the check and dis- carrier or contractor’s basis for deny- patch the unearned freight letter, if ap- ing liability is acceptable only in part plicable. Mark the front upper left- or is completely unacceptable, follow hand corner of the file as ‘‘CLOSED.’’ the procedures in subparagraph (3) (2) Third party offers of settlement. If a above, requesting the amount that is carrier or contractor offers to settle justified under the circumstances in the claim, review the carrier’s argu- the light of all the evidence. If a re- ments for reducing liability to deter- sponse is not received within 45 days, mine if they are acceptable. If the third or if the third party’s reply is not re- party’s basis for reducing liability is sponsive, request NAVMTO, Norfolk acceptable in light of all evidence, in- (or appropriate contract officer) take form the carrier that the offer is ac- offset action as described above. cepted, but that offset action will be (b) Depreciation. In determining pay- initiated if a check for that amount is ments to claimants, the depreciation not received within 45 days. If a check rates from the Allowance List—Depre- ciation Guide are used. In determining in the amount acceptable to the Gov- third party liability, however, a dif- ernment is received, deposit it and dis- ferent depreciation guide, the Joint patch the unearned freight letter, if ap- Military/Industry Depreciation Guide plicable. Mark the front upper left- is used instead. In most instances, the hand corner of the file as ‘‘CLOSED.’’ If depreciation rates are the same in both a check in the proper amount is not re- guides, and claims personnel are not ceived within 45 days, send the request required to consult the Joint Military/ to NAVMTO, Norfolk (or appropriate Industry Depreciation Guide or alter contract officer) for offset action (see the depreciation taken on items prior § 751.32 of this part). to dispatching demands. If, however, a (3) Unacceptable third party checks and carrier or contractor objects to the de- offers of settlement. If a third party’s preciation rate utilized for certain basis for denying liability is not valid, items, consult the Joint Military/In- respond to that carrier or contractor. dustry Depreciation Guide and use the Return unacceptable checks. Explain depreciation rate found in that guide if the reasons for not accepting the check it differs from the rate in the Allow- or offer, and request the amount that ance List-Depreciation Guide. is justified under the circumstances in the light of all the evidence. If a re- § 751.31 Common reasons for denial by lease was included, amend the release carrier or contractor. to the revised amount and sign, date, The following are common reasons witness, and return it. Warn the carrier given for denial of an entire claim, or or contractor that the claim will be for individual items on a claim. Each forwarded for offset action if a check reason for denial is followed by a short for the amount justified under the cir- discussion of the validity of such a de- cumstances is not received within 45 nial. days. Suspend the file for 45 days and if (a) The carrier alleges that valid excep- a check in the proper amount is re- tions were made at the time of pickup ceived, deposit it and dispatch the un- from the NTS facility. When a carrier earned freight letter, if applicable. If a provides an exception sheet it contends check in the proper amount is not re- was made at time of transfer, this ex- ceived within 45 days, request ception sheet must bear the signature NAVMTO, Norfolk (or appropriate con- of a representative of the NTS facility. tract officer) to take offset action. Without a signed exception sheet there (4) Third party denials of liability. is no evidence that the NTS facility Upon receipt, review the carrier or con- was made aware of these exceptions

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and given the opportunity to confirm does not relieve the carrier of liability or deny the alleged condition of the and is insufficient to rebut a well-es- items in question. The burden of proof tablished prima facie case of liability. is on the carrier to provide the valid (f) The carrier denies liability on miss- exception sheet and establish its free- ing items because the items do not appear dom from liability. on the new inventory made at pickup (b) The carrier denies liability for miss- from the NTS facility. When a carrier ing or damaged item packed in cartons be- picks up a shipment from NTS and cause it did not pack the shipment and chooses to prepare a new inventory, it the cartons did not show outside damage. must use identical or cross-referenced When a carrier accepts a shipment in numbers. If an article such as a chair apparent good order, it is responsible or a lawnmower is missing, it must be for damage to packed items, unless it indicated as ‘‘missing’’ on the new in- can prove that the packing was im- ventory. Whether or not a new inven- proper and was the sole cause of the tory is made, an exception sheet must damage. be prepared and the missing articles (c) The carrier contends that the mildew must be noted thereon. To relieve the damage occurred in NTS and not during carrier of liability, both the new inven- its transport of the shipment. Mildew for- tory and the exception sheet must be mation is more likely to occur in NTS signed by representatives of the NTS than in transport. Unsupported by evi- facility and the carrier. dence, however, an allegation that mil- (g) The carrier denies liability due to dew formation occurred during NTS act of God. An act of God is an event does not rebut the established prima ‘‘ ’’ that could not have been prevented by facie case of a carrier liability. A carrier must prepare an exception sheet human prudence. It is generally seen as and note any mold or mildew damage an occurrence in which human skill or when the items were picked up from watchfulness could not have foreseen the NTS facility. The burden of proof is the disaster. The burden of proof is on on the carrier to show that it was free the carrier to establish that an ‘‘act of from negligence and that the damage God’’ existed and that it was the sole was due solely to the formation of mil- cause of the damage claimed. Since the dew or mold during the NTS storage. carrier can rarely establish this burden (d) The carrier claims that damage is of proof, denial due to an ‘‘act of God’’ due to ‘‘inherent vice.’’ Although the car- is generally not acceptable. The carrier rier may allege that damage was due to cannot avoid liability if it has been ‘‘inherent vice,’’ the mere allegation of negligent in exposing the goods to po- ‘‘inherent vice’’ is insufficient to relieve tential danger or if it failed to take the carrier of liability. The burden of reasonable steps to reduce the extent proof is on the carrier to establish that of the injury once the danger was dis- an ‘‘inherent vice’’ existed and that it covered. was the sole cause of the damage (h) The carrier contends that the claim- claimed. Since the carrier can rarely ant’s repair estimate is excessive and that establish this burden of proof, denial its own repair firm can do the job cheaper. due to ‘‘inherent vice’’ is seldom accept- A claimant has the right to select a re- able. pair firm provided the cost is reason- (e) The carrier contends that it was de- able and not in excess of the item’s nied the right to inspect. Often a carrier value. The carrier is liable for the rea- will state that it made several at- sonable cost of repairing damaged mer- tempts to make an inspection, but the chandise that includes labor, material, shipper failed to keep the appointment. overhead, and other incidental ex- If such a case exists, the proper proce- penses incurred in reconditioning or dure for the carrier to follow is to con- putting the goods in salable condition. tact the claims office for assistance in If the carrier did not provide the accomplishing the inspection within a claims office with an acceptable, lower timely manner. A carrier’s efforts to estimate to use in adjudicating the obtain the inspection should be docu- claim, and if the claimant’s estimate is mented in the file by claims personnel. reasonable, then the carrier is liable Lack of an inspection alone, however, for the amount paid the claimant.

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(i) The carrier contends that liability moves and DPM shipments in which should have been predicated on the the origin and/or destination con- agreed weight of a sofa and not a hide-a- tractor is determined to be liable. bed. This argument only applies when When the contractor fails to reply to a carrier liability is based on weight. At demand within 120 days or fails to the time the inventory is prepared, the make an acceptable offer, the file carrier’s driver must establish whether should be forwarded to the local con- a sofa is merely a sofa, or one that contracting office with a request for offset verts into a bed. Failure to properly action. identify the item on the inventory does (c) Unjustified denials and inadequate not relieve the carrier of liability for settlement offers by carrier or contractor— the greater weight of a sofa bed. (1) GBL carriers. If a GBL carrier or in- (j) The carrier argues that it is not re- surer has refused to acknowledge or responsible for warpage, rust, etc., due to spond to a demand within a reasonable climatic changes. This argument does time (usually 30 days), if the claims in- not relieve a carrier of liability unless vestigating officer considers a valid the carrier offers substantial evidence claim to have been denied or not ade- to show that the damages resulted quate settlement offered, or if settle- solely from unusual circumstances be- ment has been delayed beyond 120 days yond its control, as with an ‘‘act of (see § 751.32(a)), the claim shall be for- God,’’ or that it occurred while the warded to the NLSC activity serving property was in the hands of another the geographical location recom- contractor, as reflected upon a valid mending that set-off action be taken NTS exception sheet. The burden of against the carrier or contractor. The proof is on the carrier to establish that 120-day period begins to run on the the damage was not due to its neg- date initial demand is made on the car- ligence and that circumstances beyond rier. The NLSC activity shall review its control were the sole cause of the the file and if the carrier liability is loss. Because the carrier can rarely es- correctly computed, forward a copy of tablish this, denial due to ‘‘climatic the GBL, copies of the DD Forms 1843 changes’’ is rarely acceptable. and 1844, SCAC code, and final demand on carrier to the Commanding Officer, § 751.32 Forwarding claims files for Naval Material Transportation Office, offset action. Code 023, Bldg. Z–133–5, Naval Station, (a) General. Claim files are forwarded Norfolk, VA 23511 directing set-off ac- with a recommendation for offset 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

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loss or destruction of an item in ship- Household Goods Loss and Damage ment is attributable to a GBL carrier. Claims. Other commands dealing with Unearned freight packets should be ad- carrier recoveries should get a copy of dressed to the carrier, and not to the the manual from the NLSC activity agents of GBL carriers, NTS contrac- servicing the local area. tors, or other contract movers. An unearned freight packet is required when § 751.35 Forms and instructions. a mobile home is lost or completely de- Copies of all of the forms and instruc- stroyed. An unearned freight packet in- tions discussed in this part may be ob- cludes: tained if needed, from the Commanding (1) A Request For Deduction of Un- Officer, Naval Publications and Forms earned Freight Charges; Center, 5801 Tabor Avenue, Philadel- (2) A copy of DD Form 1843; phia, PA 19120. (3) A copy of DD Form 1844; and (4) A copy of the GBL. PART 752—ADMIRALTY CLAIMS (b) Dispatch. The unearned freight packet is not dispatched to the Sec. NAVMTO, Norfolk until the carrier has 752.1 Scope. paid its agreed liability or when offset 752.2 Organization. has been accomplished. 752.3 Claims against the Navy. 752.4 Affirmative claims. § 751.34 GAO appeals. 752.5 Salvage. (a) General. Sections 1 through 12 and AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5013, 5148, 52 through 65 of Title 4, GAO Manual, and 7621–7623; 32 CFR 700.206 and 700–1202. Policy and Procedures Manual for § 752.1 Scope. Guidance of Federal Agencies, and 4 CFR parts 30–32 set forth procedures for This part applies to admiralty-tort carriers to appeal setoff action. Before claims. These include claims against a carrier can appeal a setoff action to the United States for damage caused GAO, the command requesting setoff by a vessel in the naval service or by action must make an administrative other property under the jurisdiction report to GAO. of the Navy, or damage caused by a (b) Procedures for appeals. (1) The car- maritime tort committed by an agent rier must request appeal from the com- or employee of the Navy, and affirma- mand requesting setoff action and re- tive claims by the United States for quest a GAO review. damage caused by a vessel or floating (2) The command requesting setoff object to Navy property. action will review the appeal and if it [39 FR 9962, Mar. 15, 1974 is determined the setoff action was 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). The Secretary also have been provided a copy of a manual has authority to settle affirmative ad- published by the Claims Group General miralty claims for damage caused by a Government Division, U.S. General Ac- vessel or floating object to property counting Office entitled Procedures of under the jurisdiction of the Navy (10 the U.S. General Accounting Office for U.S.C. 7623).

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(b) Admiralty and Maritime Law Divi- the maintenance, repair, and alteration sion of the Office of the Judge Advocate of Government-owned vessels assigned General. The Navy’s admiralty-tort to it. The Office of Counsel, MSC, deals claims are processed and adjudicated in with the various claims of a contract the Admiralty and Maritime Law Divi- nature which arise out of these oper- sion of the Office of the Judge Advo- ations. These include claims for cargo cate General. All correspondence with damage, charter hire, redelivery, gen- the Admiralty and Maritime Law Divi- eral average, and claims arising under sion should be addressed to the Office MSC ship-repair contracts. of the Judge Advocate General (Code (f) Damage caused by Navy contract 11), 1322 Patterson Avenue SE, Suite stevedores. Office of Counsel, Naval 3000, Washington Navy Yard, DC 20374– Supply Systems Command, has cog- 5066. nizance of admiralty claims for damage (c) Mission and policy. The primary caused by Navy contract stevedores. mission of the Admiralty and Maritime Under these stevedore contracts, the Law Division is to effect prompt and stevedoring companies are responsible equitable settlements of admiralty for negligent acts of their employees claims, both against and in favor of the which result in vessel damage. It is im- United States. The settlement proce- portant that the extent of any such dure has evolved to eliminate the ex- damage be accurately determined and penses and delays arising out of litiga- promptly reported to the contracting tion and to obtain results advan- officer having cognizance of the par- tageous to the financial interests of ticular stevedore contract involved. the United States. Where settlements (g) Resolving conflicts. Admiralty-tort cannot be made, litigation ensues in claims, such as collision, personal-in- the Federal Courts. The final test of jury, and death claims, are dealt with whether a settlement is justified is the by the Admiralty and Maritime Law probable result of litigation. Settle- Division, irrespective of whether an ments are therefore considered and de- MSC vessel or other naval vessel is in- termined by the probable results of volved. Whether any particular claim litigation. The policy of the Navy is to is to be handled by JAG or by MSC, effect fair and prompt settlements of therefore, is determined by the nature admiralty claims wherever legal liabil- of the claim. Cases may arise which ity exists. could be handled by either office. If (d) Admiralty-tort claims. As indicated doubt exists, such matters should be above, the Admiralty and Maritime 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; 69 FR 20542, Apr. 16, 2004] erty of the Navy (affirmative claims). The Admiralty and Maritime Law Divi- § 752.3 Claims against the Navy. sion also handles claims for towage and (a) Settlement authority. 10 U.S.C. 7622) salvage services rendered to a vessel in provides settlement authority for ‘‘(1) the naval service. Damage caused by a vessel in the naval (e) Admiralty-contract claims. Admi- service or by other property under the ralty-contract claims arising out of the jurisdiction of the Department of the operations of the Military Sealift Com- Navy; (2) compensation for towage or mand (MSC) are handled by its Office salvage service, including contract sal- of Counsel. MSC is responsible for the vage, rendered to a vessel in the naval procurement of vessels and space for service or to other property of the the commercial ocean transportation Navy; or (3) damage caused by a mari- of Department of Defense cargo, mail, time tort committed by any agent or and personnel. It is also responsible for employee of the Department of the

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Navy or by property under the jurisdic- plished, then the claimant must file tion of the Department of the Navy.’’ suit under the appropriate statute to The limit on the Secretary’s settle- avoid the limitation bar. The agreement authority is payment of ment reached in negotiations must re- $15,000,000. A claim which is settled for ceive the approval of the Secretary of an amount over $15,000,000 is certified the Navy or his designee, depending on to Congress for payment. Section 7622 the amount involved, prior to the expi- provides that the Secretary may dele- ration of the two-year period. gate his settlement authority in mat- (e) Matters in litigation. When suit is ters where the amount to be paid is not filed, the matter comes within the cog- over $100,000. Under the Secretary’s nizance of the Department of Justice, delegation, settlements not exceeding and the Secretary of the Navy is no $100,000 may be effected by the Judge longer able to entertain a claim or to Advocate General, Deputy Judge Advo- make administrative settlement. cate General, Assistant Judge Advo- cate General (General Law), and the [39 FR 9962, Mar. 15, 1974, as amended at 55 Deputy Assistant Judge Advocate Gen- FR 12173, Apr. 2, 1990; 65 FR 60861, 60862, Oct. 13, 2000; 69 FR 20542, Apr. 16, 2004] eral (Admiralty and Maritime Law). Authority has also been delegated to § 752.4 Affirmative claims. Deputy Commander in Chief, U.S. Naval Forces, Europe, and to Com- (a) Settlement authority. The Navy has mander Sixth Fleet, to pay admiralty the same authority to settle affirma- claims against the Navy not exceeding tive admiralty claims as it does claims $10,000. against the Navy. The statute confer- (b) Settlement is final. The legislation ring this authorization is codified in 10 specifically authorizes the Secretary to U.S.C. 7623, and is the reciprocal of 10 settle, compromise, and pay claims. U.S.C. 7622 referred to in § 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). (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

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litigated claims, the Navy has no fur- PART 755—CLAIMS FOR INJURIES ther authority to effect settlement. TO PROPERTY UNDER ARTICLE [39 FR 9962, Mar. 15, 1974, as amended at 55 139 OF THE UNIFORM CODE OF FR 12174, Apr. 2, 1990; 65 FR 60861, Oct. 13, MILITARY JUSTICE 2000; 69 FR 20542, Apr. 16, 2004] Sec. § 752.5 Salvage. 755.1 Statutory authority. 755.2 Scope. (a) Scope. This section relates to sal- 755.3 Claims not cognizable. vage claims against or by the Navy for 755.4 Limitation on claims. compensation for towage and salvage 755.5 Complaint by the injured party and in- services, including contract salvage, vestigation. rendered to a vessel in the naval serv- 755.6 Action where offenders are members of one command. ice or to other property under the ju- 755.7 Action where offenders are members of risdiction of the Department of the different commands. Navy, or for salvage services rendered 755.8 Reconsideration and appeal. by the Department of the Navy. Suits 755.9 Effect of court-martial proceedings. for salvage may be maintained under AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 939, 5013, the Public Vessels Act, and salvage and5148; E.O. 11476, as reported in 3 CFR, 1969 claims are within the Secretary of the Comp., p. 132; 32 CFR 700.206 and 700.1202. Navy’s administrative-settlement au- SOURCE: 56 FR 42232, Aug. 27, 1991, unless thority under 10 U.S.C. 7622. Salvage otherwise noted. claims against the Navy are reported NOTE 1: This part 755 is chapter IV of the to and processed by the Judge Advo- Manual of the Judge Advocate General of the Navy. cate General (Admiralty and Maritime NOTE 2: The Uniform Code of Military Jus- Law Division). Both claims and suits tice (10 U.S.C. 801-940) is referred to in this for salvage against the United States part 755 as the ‘‘UCMJ’’. The Manual for are subject to the two-year limitation Courts-Martial, United States, 1984 (E.O. of the Public Vessels Act and the 12473 of August 1, 1984) is referred to in this part 755 as ‘‘MCM 1984’’. Navy’s settlement authority. (b) Affirmative claims. Authorization § 755.1 Statutory authority. for the settlement of affirmative sal- Article 139, UCMJ, redress of injuries vage claims is contained in 10 U.S.C. to property, is the basis for this chap- 7365. Assertion of such claims is han- ter. dled in the first instance by the Assist- ant Supervisor of Salvage (Admiralty), § 755.2 Scope. USN, Naval Sea Systems Command This chapter provides for assess- (SEA OOCL), 2531 Jefferson Davis High- ments against the pay of members of way, NC/3 Room 11E54, Arlington, VA the naval service in satisfaction of 22242–5160. Salvage claims are referred claims for property damage caused to the Admiralty Division only if the under certain circumstances. Claims Assistant Supervisor of Salvage (Admi- for damage, loss, or destruction of pri- ralty) is unsuccessful in making collec- vately owned property caused by a per- tion. Any money received in settle- son or persons in the naval service, are ment of affirmative salvage claims is payable under Article 139, UCMJ, only credited to appropriations for main- if such damage, loss, or destruction is taining salvage facilities by the Navy, caused by riotous conduct, willful conduct, or acts showing such reckless or pursuant to 10 U.S.C. 7367. wanton disregard of the property rights [39 FR 9962, Mar. 15, 1974, as amended at 41 of others that willful damage or de- FR 26866, June 30, 1976; 55 FR 12174, Apr. 2, struction is implied. Acts of the type 1990; 65 FR 60861, 60862, Oct. 13, 2000; 69 FR punishable under Article 109, UCMJ, 20542, Apr. 16, 2004] are cognizable under Article 139, UCMJ. Charges against pay under these regulations shall be made only against the pay of persons shown to have been principal offenders or acces- sories.

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§ 755.3 Claims not cognizable. whose command the alleged offenders The following claims are not cog- do not report, he shall forward the nizable under this chapter. claim and other pertinent information (a) Claims resulting from simple neg- about the matter to the member’s com- ligence. manding officer who will convene an (b) Claims of subrogees. investigation into the incident. Where (c) Claims for personal injury or the command of the alleged offenders death. cannot be determined, the claim and (d) Claims arising from acts or omis- supporting materials shall be for- sions within the scope of employment warded to the Chief of Naval Personnel of the offender. or the Commandant of the Marine (e) Claims for reimbursement for Corps, as appropriate, for action. damage, loss, or destruction of Govern- (c) The investigation shall inquire ment property. into the circumstances surrounding the claim, gather all relevant information § 755.4 Limitation on claims. about the matter (answering the who, (a) Time limitations. A claim must be what, where, when, why, and how ques- submitted within 90 days of the inci- tions) and make findings and opinions, dent giving rise to it. as appropriate, about the validity of (b) Acts of property owner. When the the claim under Article 139, UCMJ, and acts or omissions of the property these regulations. The investigation owner, his lessee, or agent were a prox- shall determine the amount of damage imate contributing factor to the loss or suffered by the property owner. damage of the property, assessments (d) The investigation shall make rec- will not be made against members of ommendations about the amount to be the naval service in excess of the assessed against the pay of the respon- amount for which they are found to be sible parties. If more than one person is directly responsible, i.e., comparative found responsible, recommendations responsibility for the loss will be the shall be made about the assessments standard for determining financial re- against all individuals. sponsibility. (c) Only direct damages considered. As- § 755.6 Action where offenders are sessment will be made only for direct members of one command. physical damages to the property. Indi- rect, remote, or inconsequential dam- (a) Action by commanding officer. The age will not be considered. commanding officer shall ensure the alleged offenders are shown the inves- § 755.5 Complaint by the injured party tigative report and are advised they and investigation. have 20 days within which to submit a (a) A claim shall contain a statement statement or additional information on setting forth the amount of the claim, the incident. If the member declines to the facts and circumstances sur- submit information, he shall so state rounding the claim and any other in- in writing within the 20 day period. formation that will assist in the inves- The commanding officer shall review tigation and resolution of the matter. the investigation and determine wheth- When there is more than one complaint er the claim is properly within the pro- resulting from a single incident, each visions of Article 139, UCMJ, and these claimant must file a claim separately regulations, and whether the facts indi- and individually. The claim shall be cate responsibility for the damage on personally signed by the claimant or members of the command. If the com- his duly authorized representative or manding officer finds the claim pay- agent. able under these regulations, he shall (b) Where the claim alleges mis- fix the amount to be assessed against conduct by members of the command, a the offenders. commanding officer to whom the claim (b) Review. If the commanding officer is submitted shall convene an inves- has authority to convene a general tigation under this Manual to inquire court-martial, no further review of the into the matter. Where a complaint is investigation is required as to the re- received by a commanding officer to dress of injuries to property. If the

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commanding officer does not have gen- the offenders and direct the appro- eral court-martial convening author- priate commanding officers to take ac- ity, the investigation and the com- tion accordingly. manding officer’s action thereon shall (b) Forwarding to SECNAV (JAG). be forwarded to the officer exercising Where it is not practical or possible to general court-martial jurisdiction carry out the procedure in § 755.7(a) of (OEGCM) over the command for review this section, the investigation or inves- and action on the claim. That officer’s tigations shall be forwarded to the Sec- action on the claim shall be commu- retary of the Navy (Judge Advocate nicated to the commanding officer who General) who will take action in the will take action consistent with the de- matter. Commanding officers, in such a termination. situation, are not to make charges (c) Charge against pay. Where the against the pay of their members until amount does not exceed $5,000.00, the directed by the Secretary of the Navy amount ordered by the commanding of- (Judge Advocate General). ficer shall, as provided in the Navy Comptroller Manual, be charged § 755.8 Reconsideration and appeal. against the pay of the offenders and (a) Reconsideration. The OEGCM may, the amounts so collected will be paid upon a receipt of a request for recon- to the claimant. Where the amount ex- sideration by either the claimant or a ceeds $5,000.00, the claim, the investiga- member who has been assessed pecu- tion, and the commanding officer’s rec- niary liability, reopen the investiga- ommendation shall be forwarded for re- tion or take any other action he be- view prior to checkage to Head- lieves is necessary in the interests of quarters, U.S. Marine Corps (Code justice. If the OEGCM contemplates JAR) or the Judge Advocate General, acting favorably on the request, he will as appropriate. The amount charged in provide all individuals interested in any single month against the pay of of- the claim with notice and an oppor- fenders shall not exceed one-half of tunity to respond. The basis for any 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

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offender by court-martial is evidence § 756.3 Notification. for the administrative action, but is (a) Some NAFI’s, such as flying not determinative on the issue of re- clubs, carry private commercial insur- sponsibility for damages under these ance to protect them from claims for regulations. property damage and personal injury attributable to their operations. The PART 756—NONAPPROPRIATED- Commandant of the Marine Corps, the FUND CLAIMS REGULATIONS Chief of Naval Personnel, and the Com- mander, Naval Supply Systems Com- Sec. mand determine whether NAFI’s with- 756.1 Scope. in their cognizance shall carry liability 756.2 Definitions. insurance or become self-insurers, in 756.3 Notification. whole or in part. 756.4 Responsibility. (b) The Marine Corps requires manda- 756.5 Investigation. tory participation in the Morale, Wel- 756.6 Negotiation. fare and Recreation (MWR) Composite 756.7 Payment. Insurance Program by the following 756.8 Denial. operations: MWR operations and retail 756.9 Claims by employees. services, food and hospitality, recreation; and special NAFI activities in- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 939, 5013, cluding flying clubs, rod and gun clubs, and 5148; E.O. 11476 (3 CFR, 1969 Comp., p. Interservice Rifle Fund, Marine Corps 132); 32 CFR 700.206 and 700.1202. Marathon and Dependent Cafeteria SOURCE: 57 FR 4736, Feb. 7, 1992, unless oth- Fund. The following organizations may erwise noted. also participate in the MWR Composite Insurance Program, if desired: Child § 756.1 Scope. welfare centers, billeting funds, chapel This part explains how to settle funds, and civilian welfare funds. claims for and against the United (c) When the operations of NAFI’s result in property damage or personal in- States for property damage, personal jury, the insurance carrier, if any, 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- partment of the Navy and if the degree eral Government. of control and supervision by the Navy (b) Nonappropriated-funds. Funds gen- is more than casual or perfunctory. erated through the use and patronage Compare United States v. Holcombe, 277 of NAFI’s, not including funds appro- F.2d 143 (4th Cir. 1960) and Scott v. priated by Congress. United States, 226 F. Supp. 846, (D. Ga. (c) Employees of NAFI. Civilian per- 1963). Consequently, to the extent sov- sonnel employed by NAFI’s whose sala- ereign immunity is waived by the Fed- ries are paid from nonappropriated- eral Tort Claims Act, 28 U.S.C. 1346(b), funds. Also, military personnel work- 2671–2672, 2674–2680, the United States ing part-time at NAFI’s when com- remains ultimately liable for payment pensated from nonappropriated-funds. of NAFI claims.

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§ 756.5 Investigation. § 756.7 Payment. Claims arising out of the operation of (a) Claims that can be settled for less NAFI’s, in and outside the United than $1000.00. A claim not covered by States, shall be investigated in accord- insurance (or not paid by the insurer), ance with the procedures for inves- that can be settled for $1000.00 or less, tigating similar claims against appro- may be adjudicated by the com- priated fund activities in order to pro- manding officer of the activity con- tect the residual liability of the United cerned or designee. The claim shall be States. All claims should be submitted paid out of funds available to the com- to the command having cognizance manding officer. over the NAFI involved. (b) Claims that cannot be settled for less than $1000.00. A claim negotiated by the § 756.6 Negotiation. Navy, not covered by insurance, that cannot be settled for less than $1000.00, (a) General. Claims from NAFI’s shall be forwarded to the appropriate should be processed primarily through nonappropriated-fund headquarters NAFI claims procedures, using as command for payment from its non- guidelines the regulations and statutes appropriated-funds. applicable to similar appropriated fund (c) When payment is possible under an- activity claims. other statute. In some cases neither the (b) When the NAFI is insured. When a NAFI nor its insurer may be legally re- NAFI is insured, the insurer or the con- sponsible. In those instances, when tracted third-party claims adminis- there is no negligence, and payment is trator (TPA) will normally conduct ne- authorized under some other statute, gotiations with claimants. The appro- such as the Foreign Claims Act, 10 priate naval adjudicating authority as U.S.C. 2734–2736, the claim may be con- shown in 32 CFR 750.34(c)(2)(ii) has the sidered for payment from appropriated responsibility of monitoring the nego- funds or may be referred to the Judge tiations conducted by the insurer or Advocate General for appropriate ac- TPA. Monitoring is normally limited tion. 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 to cover losses which result from some status reports, and to close files on set- act or omission of a mere participant tled claims. Any dissatisfaction with in a nonappropriated-fund activity. In the insurer’s or TPA’s handling of the the event the NAFI declines to pay the negotiations should be referred di- claim, the file shall be forwarded to the rectly to the Judge Advocate General Judge Advocate General for determina- for appropriate action. Under special tion. circumstances, even when there is an insurer or TPA, the appropriate naval § 756.8 Denial. adjudicating authority may conduct Claims resulting from non- negotiations, provided the command appropriated-fund activities may be de- involved and the insurer agree to it. nied only by the appropriate naval ad- When an appropriate settlement is ne- judicating authority. Such a denial is gotiated by the Navy, the rec- necessary to begin the 6-month limita- ommended award will be forwarded to tion on filing suit against the United the insurer or TPA for payment. States for claims filed under the Fed- (c) When the NAFI is not insured. eral Tort Claims Act. Denial of a claim When there is no private, commercial shall be in writing and in accordance insurer and the NAFI has made no with subparts A or B of part 750 of this independent arrangements for negotia- chapter, as appropriate. The appro- tions, the appropriate Navy adjudi- priate naval adjudicating authority cating authority is responsible for con- should not deny claims which have ini- ducting negotiations. When an appro- tially been processed and negotiated by priate settlement is negotiated by the a nonappropriated-fund activity, its in- Navy, the recommended award will be surer or TPA until the activity or its forwarded to the NAFI for payment insurer has clearly stated in writing from nonappropriated-funds. that it does not intend to pay the

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claim and has elected to defend in 757.15 Claims not asserted. court. 757.16 Claims asserted only with JAG approval. § 756.9 Claims by employees. 757.17 Statute of limitations. 757.18 Asserting the claim. (a) Personal injury or death of citizens 757.19 Waiver and compromise. or permanent residents of the United 757.20 Receipt and release. States employed anywhere, or foreign na- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 939, 5013, tionals employed within the United and 5148; E.O. 11476, 3 CFR, 1969 Comp., p. 132; States. Compensation is provided by the 32 CFR 700.206 and 700.1202. Longshore and Harbor Workers’ Com- SOURCE: 57 FR 5072, Feb. 12, 1992, unless pensation Act (33 U.S.C. 901–950) for otherwise noted. employees of NAFI’s who have suffered injury or death arising out of and in the course of their employment (5 Subpart A—Property Damage U.S.C. 8171). That Act is the exclusive Claims basis for Government liability for inju- § 757.1 Scope of subpart A. ries or deaths that are covered (5 U.S.C. 8173). A claim should first be Subpart A describes how to assert, made under that Act if there is a sub- administer, and collect claims for dam- stantial possibility the injury or death age to or loss or destruction of Govern- is covered. ment property through negligence or (b) Personal injury or death of foreign wrongful acts. nationals employed outside of the continental United States. Employees who are § 757.2 Statutory authority. not citizens or permanent residents, (a) General. With the exception of and who are employed outside the con- MCRA claims, all affirmative claims tinental United States, are protected for money or property in favor of the by private insurance of the NAFI or by United States shall be processed in ac- other arrangements (5 U.S.C. 8172). cordance with the Federal Claims Col- When a nonappropriated-fund activity lection Act (31 U.S.C. 3711). Depart- 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). § 757.3 Regulatory authority. Subpart A—Property Damage Claims The regulations published in 4 CFR Sec. chapter II control the collection and 757.1 Scope of subpart A. settlement of affirmative claims. This 757.2 Statutory authority. section supplements the material con- 757.3 Regulatory authority. tained in those regulations. Where this 757.4 Claims that may be collected. 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. (a) Against responsible third parties for Subpart B—Medical Care Recovery Act damage to government property, or the (MCRA) Claims 757.11 Scope of subpart B. 1 Copies may be obtained if needed, from 757.12 Statutory authority. the Commanding Officer, U.S. Naval Publica- 757.13 Responsibility for MCRA action. tions and Forms Center, 5801 Tabor Avenue, 757.14 Claims asserted. Philadelphia, PA 19120.

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property of nonappropriated-fund activi- (c) Dollar limitations. All of the offi- ties. It should be noted, however, that cers listed in § 757.5(b) are authorized to as a general rule, the Government does compromise and terminate collection not seek payment from action on affirmative claims of servicemembers and Government em- $20,000.00 or less. ployees for damages caused by their (d) Determining liability. Liability simple negligence. Exceptions to this must be determined in accordance with general policy will be made when the the law of the place in which the dam- incident involves aggravating cir- age occurred, including the applicable cumstances. traffic laws, elements of tort, and pos- (b) For medical costs from third party sible defenses. payers in accordance with 10 U.S.C. 1095. (e) Assertion of a claim. (1) Assertion These claims are asserted and collected of the claim is accomplished by mail- by the medical treatment facilities ing to the tortfeasor a ‘‘Notice of under the coordination of benefits pro- Claim.’’ The notice is to be mailed cer- gram. tified mail, return receipt requested, (c) For money paid or reimbursed by the and should include the following infor- government for damage to a rental car in mation: accordance with the Joint Federal Travel (i) Reference to the statutory right Regulations (volume 1, paragraph U 3415– to collect; C and volume 2, paragraph C 2101–2). (ii) A demand for payment or restora- Collection action shall be taken tion; against third parties liable in tort. Col- (iii) A description of damage; lection action shall not be taken (iv) The date and place of the inci- against Government personnel who dent; and rented the vehicle. (v) The name, phone number, and of- (d) Other claims. Any other claim for fice address of the claims personnel to money or property in favor of the contact. United States cognizable under the (2) See also 4 CFR part 102. 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 forwarded to the disbursing officer serving (b) Officials authorized to pursue the collecting activity for deposit in claims. The following officers are au- accordance with the provisions of the thorized to pursue and collect all af- Navy Comptroller Manual. firmative claims in favor of the United (g) Installment payments. See 4 CFR States: 102.11 for specific procedures. In gen- (1) The Judge Advocate General; the eral, if the debtor is financially unable Deputy Judge Advocate General; any to pay the debt in one lump sum, an in- Assistant Judge Advocate General; and stallment payment plan may be ar- the Deputy Assistant Judge Advocate ranged. Installment payments will be General (Claims and Tort Litigation); required on a monthly basis and the and size of payment must bear a reasonable (2) Commanding officers of Naval relation to the size of the debt and the Legal Service Offices and applicable debtor’s ability to pay. The install- Detachments, except Naval Legal Serv- ment agreements should specify pay- ice Offices in countries where another ments of such size and frequency to liq- service has single service responsibility uidate the Government’s claim in not in accordance with DOD Directive more than 3 years. Installment pay- 2 5515.8. ments of less than $50.00 per month should be accepted only if justified on 2 See footnote 1 to § 757.2. the grounds of financial hardship or for

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some other reasonable cause. In all in- on all claims, and may compromise, stallment arrangements, a confession execute releases or terminate collec- of judgment note setting out a repay- tion action on all claims of $20,000.00 or ment schedule should be executed. less. Collection action may be termi- (h) Damage to nonappropriated-fund nated for the convenience of the Gov- instrumentality (NAFI) property. Any ernment if the tortfeasor cannot be lo- amount collected for loss or damage to cated, is found to be judgment-proof, property of a NAFI shall be forwarded has denied liability, or has refused to to the headquarters of the non- respond to repeated correspondence appropriated-fund activity for deposit concerning legal liability involving a with that activity. In those situations small claim. A termination for the con- where the recovery involves damage to venience of the Government is made both NAFI-owned property and other after it is determined that the case Government property, e.g., destruction does not warrant litigation or that it is of an exchange building resulting in not cost-effective to pursue recovery damage to both the building and the efforts. exchange-owned property inside, recov- (b) Claims over $100,000.00. Claims in ery for the exchange-owned property excess of $100,000.00 may not be com- shall be forwarded to the NAFI. Recov- promised for less than the full amount ery for building damage shall be depos- or collection action terminated with- ited in accordance with § 757.5(f) above. out approval from the Department of (i) Damage to industrial-commercial Justice (DOJ). property. When a loss or cost of repair has been borne by an industrial-com- (c) Notification. The Judge Advocate mercial activity, payment shall be de- General shall be notified prior to all re- posited in the Navy Industrial Fund of quests made to the DOJ to com- the activity in accordance with the promise, terminate collection, or refer- provisions of the Navy Comptroller ral for further collection action or liti- Manual. When a claim is based on a gation. loss or damage sustained by such an (d) Litigation Reports. Litigation re- activity, a notation to this effect shall ports prepared in accordance with 4 be included in any claim file forwarded CFR part 103 shall be forwarded to the to the Judge Advocate General. DOJ along with any case file forwarded (j) Replacement in kind or repair. The for further collection action or litiga- responsible party, or insurer, may want tion as required by the Federal Claims to repair or replace in kind damaged Collections Standards. property. The commanding officer or officer in charge of the activity sus- §§ 757.7–757.10 [Reserved] taining the loss is authorized to accept repair or replacement if, in his discre- Subpart B—Medical Care tion, it is considered to be in the best Recovery Act (MRCA) Claims interests of the United States. (k) Release. The commanding officer § 757.11 Scope of subpart B. or officer in charge is authorized to Subpart B describes the assertion and execute a release of the claim when all repairs have been completed to the collection of claims for medical care Government’s satisfaction, and when under the Medical Care Recovery Act all repair bills have been paid. No prior (MCRA). The MCRA states that when approval from the Judge Advocate Gen- the Federal Government provides eral is required for this procedure. If treatment or pays for treatment of an repair or replacement is made, a nota- individual who is injured or suffers a tion shall be made in any investigation disease, the Government is authorized or claims file. to recover the reasonable value of that treatment from any third party legally § 757.6 Waiver, compromise, and refer- liable for the injury or disease. ral of claims. (a) Officials authorized to compromise § 757.12 Statutory authority. claims. The officers identified in Medical Care Recovery Act, 42 U.S.C. § 757.5(b) may collect the full amount 2651–2653 (1982).

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§ 757.13 Responsibility for MCRA ac- care is transferred to another facility. tion. A narrative summary should accom- (a) JAG designees. (1) Primary respon- pany the final report in all cases in- sibility for investigating, asserting, volving inpatient care. In addition, the and collecting Department of the Navy back side of NAVJAG Form 5890/12 is (DON) MCRA claims and properly for- completed as part of the final report warding MCRA claims to other Federal when the value of Federal Government departments or agencies rests with the care exceeds $1,000.00. following officers: (c) The Office of Medical and Dental (i) Commanding officers and officers Affairs (OMA). The office pays emer- in charge, Naval Legal Service Com- gency civilian medical expenses in- mand (NLSC) activities, in their areas curred by active duty members. This of geographic responsibility; office furnishes MCRA claims informa- (ii) Officer in charge, U.S. Sending tion to the NLSC activity or USSSO. State Office, Rome in his area of geo- The address is Bldg. 38H, U.S. Naval graphic responsibility. Training Center, Great Lakes, IL 60088– (2) JAG designees may assert and re- 5200. ceive full payment on any MCRA (d) Civilian Health and Medical Pro- claim. They may, however, agree to gram of the Uniformed Services compromise or waive only claims for (CHAMPUS) contractors. CHAMPUS $40,000.00 or less. Claims in excess of contractors forward reports of pay- $40,000.00 may be compromised or ments in injury cases to the appro- waived only with DOJ approval. Such priate NLSC activity. Responsible JAG claims will be forwarded to the Judge designees should, however, initiate reg- Advocate General in accordance with ular contact with contractors within § 757.6. See § 757.7 for further discussion their geographic area to ensure all rel- of waiver and compromise. evant cases have been reported. (b) Navy Medical Treatment Facilities (e) Department of Justice (DOJ). Only (MTF). (1) Naval MTF’s are responsible the DOJ may authorize compromise or for ensuring potential MCRA claims waiver of an MCRA claim in excess of are brought to the attention of the ap- $40,000.00; settle an MCRA claim which propriate NLSC activity or U.S. Send- was previously forwarded by the DON ing State Office (USSSO). to DOJ for action; or settle an MCRA (2) The MTF reports all potential claim in which the third party has filed MCRA cases by forwarding a copy of a suit against the United States or the the daily injury log entries and admis- injured person as a result of the inci- sions records to the cognizant NLSC dent which caused the injury. activity or USSSO within 7 days of treatment for which a third party may § 757.14 Claims asserted. be liable. The NLSC activity or USSSO makes the determination of liability. (a) General. The DON asserts MCRA (i) MTF computes the value of the claims when medical care is furnished care it provided on NAVJAG Form 5890/ to Navy and Marine Corps active duty 12. Rates used to compute this value personnel, retirees, or their depend- are published annually in the FEDERAL ents, and third-party tort liability for REGISTER by the Office of Management the injury or disease exists. Claims are and Budget. asserted when the injured party is (ii) Block 4 of NAVJAG Form 5890/12 treated in a military MTF or when the requires a statement from the patient DON is responsible for reimbursing a describing the circumstances of the in- non-Federal care provider. Claims for jury or disease. medical care furnished are also as- (iii) An ‘‘interim’’ report is prepared serted using alternate theories of re- for inpatients only. An interim report covery if the MCRA does not apply. See is prepared every 4 months until the § 757.14(e). patient is released, transferred or (b) Independent cause of action. The changed to an outpatient status. MCRA creates an independent cause of (iv) A ‘‘final’’ report is prepared for all action for the United States. The Gov- patients when inpatient and outpatient ernment can administratively assert treatment is completed or the patient’s and litigate MCRA claims in its own

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name and for its own benefit. Proce- policy. The ability of the Federal Gov- dural defenses, such as a failure of the ernment to recover as a third-party injured person to properly file and/or beneficiary has been upheld in some serve a complaint on the third party, states, while other states have taken that may prevent the injured person the contrary position. from recovering, do not prevent the (2) Recovery may also be possible United States from pursuing its own under State workers’ compensation action to recover the value of medical laws. Case law in this area is still treatment provided to the injured per- emerging, but in most jurisdictions, son. The right arises directly from the the United States stands in the posi- statute; the statutory reference to sub- tion of a lien claimant for services ren- rogation pertain only to one mode of dered. enforcement. In creating an independent right in the Government, the § 757.15 Claims not asserted. Act prevents a release given by the in- In some cases, the MCRA or public jured person to a third party from af- policy considerations limit the DON’s fecting the Government’s claim. assertion of claims against apparent (c) Liable parties. MCRA claims may third-party tortfeasors. MCRA claims be asserted against individuals, cor- are not asserted against: porations, associations and non-Fed- (a) Federal Government agencies. eral Government agencies subject to Claims are not asserted against any de- the limitations described in § 757.15. partment, agency or instrumentality of (d) Reasonable value of medical care. the United States. ‘‘Agency or instru- The reasonable value of medical care mentality’’ includes self-insured, non- provided to an injured person is deter- appropriated-fund activities but does mined: not include private associations. (1) By using the rates set by the Of- (b) Injured servicemembers, dependents fice of Management and Budget and and employers of the United States. published in the FEDERAL REGISTER for Claims are not asserted directly care provided in Federal medical care against a servicemember, the depend- facilities; or ent of a servicemember, or an em- (2) By the actual amount paid by the ployee of the United States who is in- Federal Government to non-Federal jured as a result of his willful or neg- medical care providers. ligent acts. The United States does as- (e) Alternate Theories of Recovery. sert, however, against medical care and Often, recovery under the MCRA is not treatment insurance coverage the possible because no third-party tort li- member, employee, or dependent might ability exists. For example, if a mem- have. ber, retiree, or dependent is driving a (c) Employers of merchant seamen. vehicle and is injured in a single-car Claims are not asserted against the accident, there is no tortfeasor. State employer of a merchant seaman who law, including insurance, workers’ receives Federal medical care under 42 compensation, and uninsured motorist U.S.C. 249. coverage provisions, determines the (d) Department of Veterans Affairs care DON’s right to recover in situations for service-connected disability. Claims not covered by the MCRA. If, under the are not asserted for care provided to a law where the injury occurred, the in- veteran by the Department of Veterans jured party is entitled to compensation Affairs when the care is for a service- for medical care received, usually the connected disability. The United Federal Government may recover. The States will, however, claim for the rea- two most common alternate theories sonable value of care provided an indi- are described below. vidual before he is transferred to a De- (1) Recovery may be possible under partment of Veterans Affairs hospital. the injured party’s automobile 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

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third parties and forward a copy of which will assert a resulting MCRA their claims file, along with rec- claim. ommendations on assertion, to the (i) Where Navy or Marine Corps mem- Judge Advocate General: bers, retirees, or their dependents re- (a) Certain Government contractors. ceive medical treatment from another JAG approval is required before assert- Federal agency or department, the ing an MCRA claim against a Federal DON will usually assert any MCRA Government contractor when the con- claim on behalf of the United States tract provides that the contractor will based on information provided by the be indemnified or held harmless by the treating agency or department. Federal Government for tort liability. (ii) Similarly, where a Navy MTF (b) Foreign Governments. JAG ap- provides care to personnel of another proval is required before asserting Federal agency or department, that MCRA claims against foreign govern- other agency or department will usu- ments, their political subdivisions, ally assert any claim on behalf of the Armed Forces members, or civilian em- United States. ployees. (3) If the claim is not one which the (c) U.S. personnel. JAG approval is re- DON should assert, the JAG designee quired before asserting MCRA claims will forward all available information against U.S. servicemembers, their de- to the appropriate department or agen- pendents and employees of the United cy. States, or their dependents for injury (4) If the claim is one which the DON to another person. should assert, the JAG designee will ensure an appropriate investigation § 757.17 Statute of limitations. into the circumstances underlying the (a) Federal. The United States, or the claim is initiated and will provide no- injured party on behalf of the United tice to the injured party and all third States, must file suit within 3 years parties who may be liable to the inafter an MCRA action accrues. 28 jured person and the United States U.S.C. 2415. Generally this is 3 years under the MCRA. from the date of initial Federal treat- (b) Investigating the claim. While there ment or Federal Government payment is no prescribed form or content for in- to a private care provider, whichever is vestigating these claims, the claims first. file will contain sufficient information (b) State. Some State statutes of lim- on which to base valuation, assertion, itations may also apply where recovery settlement, waiver, and/or compromise is based on authority such as workers’ decisions. Usually the file will contain: compensation statutes, no-fault insur- (1) Identification of each person in- ance statutes, no-fault medical pay- volved in the incident including name, ments, or uninsured motorist provi- address, occupation, and nature of in- sions of insurance contracts. volvement; (2) Police, social service, and other § 757.18 Asserting the claim. Federal, State and local agency reports (a) Initial action by JAG designee. on the incident; When advised of a potential MCRA (3) Completed copies of NAVJAG 3 claim, the JAG designee will determine Form 5890/12 or equivalent forms from the Federal agency or department re- other agencies and departments; sponsible for investigating and assert- (4) Inpatient summaries and out- ing the claim. patients records of treatment of the in- (1) When the DON has reimbursed a volved injury in non-Federal facilities; non-Federal provider for health care or (5) Documents reflecting Federal when CHAMPUS has made payment for payment for non-Federal treatment of a Navy health care beneficiary, the the injured person; DON will assert any resulting MCRA (6) Calculations of the reasonable claim. value of the Government’s MCRA (2) When care is provided in a Federal claim; treatment facility, the status of the injured person will determine the agency 3 See footnote 3 to § 757.2.

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(7) Itemized repair bills or estimates activity or USSSO receives a similar of repair of damaged Federal Govern- request from another command, unit or ment property; activity within the DOD, every effort (8) Where an identified third-party should be made to honor the request. tortfeasor is a uniformed Assistance will normally be provided servicemember or a U.S. employee, in- without reimbursement from the re- formation and findings concerning that questing service. person’s duty or scope of employment (e) Notice of claim. (1) The JAG des- status at the time of the incident giv- ignee will assert appropriate MCRA ing rise to the injury; claims by mailing, certified mail, re- (9) Where an identified third-party turn receipt requested, a notice of tortfeasor is a uniformed claim (SF 96) to identified third-party servicemember or a U.S. employee or the dependent of a uniformed service tortfeasors and their insurers, if member or U.S. employee, information known. Many insured tortfeasors fail and findings concerning whether that to notify their insurance companies of individual was grossly negligent or incidents. This failure may be a breach willfully culpable and whether that in- of the cooperation clause in the policy dividual had insurance coverage at the and may be grounds for the insurer to time of the incident giving rise to the refuse to defend the insured or be re- injury; sponsible for any liability. The United (10) Financial information on identi- States, as a claimant, may preclude fied third-party tortfeasors including such an invocation by giving the req- names and addresses of insurance car- uisite notification itself. The purpose riers, insurance policy numbers, and of the insurance clause is satisified if extent of coverage; and the insurer receives actual notice of (11) A statement whether the injured the incident, regardless of the inform- person or his attorney will protect the ant. This notice should be mailed as interests of the United States. soon as it reasonably appears an identi- (c) Claims forwarded to JAG or DOJ. In fied third party may be liable for the those cases where the file must be for- injuries to the injured person. It is not warded to JAG or DOJ, the file will necessary or desirable to delay mailing also include: this notice until the completion of the (1) A summary of the case which in- investigation convened to inquire into cludes the circumstances of the inci- the circumstances underlying the incident which caused the injury, the dent causing the injury. The prompt source, extent and value of medical care provided and a brief of the appli- assertion of the claim will ensure that cable law on the liability of the third the Government is named on the set- party; tlement draft. If the United States is (2) Copies of all correspondence; and not so named, and the claim has been (3) Recommended disposition. asserted, the insurer settles at its own (d) Request for assistance in conducting risk. investigation. When an injury for which (2) The JAG designee will also notify the DON may assert an MCRA claim the injured person or his legal rep- occurs at a place where the DON does resentative of the Government’s inter- not have a command, unit, or activity est in the value of the medical care conveniently located for conducting an provided by the United States. This no- inquiry into the circumstances under- tice will advise that: lying the injury, the NLSC activity or (i) The United States may be entitled USSSO having responsibility for ad- to recover the reasonable value of med- ministering any resulting MCRA claim ical care furnished or paid for by the may request assistance from any other Federal Government; command, unit, or activity within the (ii) The injured person is required to DOD. Such assistance may take the cooperate in the efforts of the United form of a complete inquiry into the cir- States to recover the reasonable value cumstances underlying the incident or it may only cover part of the necessary of medical care furnished or paid for by inquiry and fact gathering. If a NLSC the Federal Government;

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(iii) The injured person is required to JAG to refer the claim to the DOJ for furnish a statement regarding the cir- possible suit. In such cases, the JAG cumstances surrounding the care and designee will forward the complete file treatment; to JAG in accordance with §§ 757.18 (b) (iv) The injured person may seek and (c). legal guidance concerning any possible (g) Access to DON records and informa- claim for personal injury; tion. (1) The medical records of the in- (v) The injured person is required to jured person will be released to the in- furnish information concerning legal jured person or his legal representative action brought against any individual upon request. This release will be with- involved in the incident and provide out cost except in unusual cir- the name of counsel representing the cumstances. These records may not be parties to such an action; and released to anyone else outside the (vi) The injured person should not DON except in accordance with the execute a release or settle a claim aris- provisions of the Privacy Act, 5 U.S.C. ing from the incident causing the in- 552a. Usually such a release will re- jury without first notifying the JAG quire authorization from the injured designee. individual or legal representative or an (f) Administering the claim. (1) After order from a court of competent juris- investigating and asserting the claim, diction. A clerk or attorney signed sub- the JAG designee will maintain con- poena is not ‘‘an order from a court of tact with all parties, their legal rep- competent jurisdiction.’’ resentatives, and insurers. (2) In appropriate cases, military (2) An effort should be made to co- health care providers who have exam- ordinate collection of the Federal Gov- ined or treated the injured person may ernment’s MCRA interest with the in- be made available by their commands jured person’s action to collect his own to testify regarding the medical care claim for damages. provided to the injured person. Re- (i) Attorneys representing an injured quests for such testimony will be proc- person may be authorized to include essed in accordance with DOD Direc- the Federal Government’s MCRA claim tive 5405.2, 28 CFR part 725, and 32 CFR as an item of special damages with the part 725, except when the injured party injured person’s claim or suit. is asserting the Federal Government’s (ii) An agreement that the Govern- MCRA claim as part of his action for ment’s claim will be made a party of damages. In that situation, the injured the injured person’s action should be in person or legal representative is con- writing and state that counsel fees will sidered also to be a representative of not be paid by the Government or com- the United States and the foregoing puted on the basis of the Government’s regulations are not applicable. In such portion of recovery. a case, the JAG designee may, if appro- (3) If the injured person is not bring- priate, request the command of an in- ing an action for damages or is refusing volved military health care provider to to include the Federal Government’s make the provider available for testi- MCRA interest, the JAG designee will mony on behalf of the injured person. pursue independent collection. The United States is specifically allowed to § 757.19 Waiver and compromise. intervene or join in any action at law (a) General. A JAG designee may au- brought by or through the injured per- thorize waiver or compromise of any son against the liable third person or MCRA claim under his authority which bring an original suit in its own name does not exceed $40,000.00. A third par- or in the name of the injured person. ty’s liability for medical costs to the The JAG designee will ensure all par- United States arising from a particular ties are aware that the United States incident will be considered as a single must be a party to all subsequent col- claim in determining whether the lection negotiation. claim is more than $40,000.00 for the (4) When the MCRA interests are not purpose of waiver and compromise. being represented by the injured person When the JAG designee considers waiv- and independent collection efforts have er or compromise appropriate in a failed, the JAG designee will request claim which exceeds $40,000.00, the

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claim file will be forwarded to JAG in (7) Any other factors which objec- accordance with §§ 757.18 (b) and (c). tively indicate fairness requires waiv- (b) Waiver. The JAG designee may er. waive the Federal Government’s MCRA (c) Compromise. The JAG designee interest when a responsible third-party may, upon written request of the in- tortfeasor cannot be located, is judg- jured person or legal representative, ment proof, or has refused to pay and compromise the Federal Government’s litigation is not feasible. Waiver is also MCRA interest using the criteria listed appropriate when, upon written request above. by the injured person or legal representative, it is determined that col- § 757.20 Receipt and release. lection would cause undue hardship to the injured person. In assessing undue (a) Payment. The JAG designee may hardship, the following circumstances receive payment in part or in full for of the injured person should be consid- any claim for which he is responsible. ered: Written acknowledgment of this re- (1) Permanent disability or disfigure- ceipt will be mailed to the party mak- ment; ing payment and a copy of the ac- (2) Lost earning capacity; knowledgement kept in the claim file. (3) Out-of-pocket expenses; (b) Release. The JAG designee will (4) Financial status; execute and deliver a release to third (5) Disability, pension and similar parties making full or compromised benefits available; payment on the Federal Government’s (6) Amount of settlement or award MCRA interest. A copy of the release from third-party tortfeasor; and will be kept in the claims file.

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

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(d) In cases of doubt, the determina- 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., tion will be made in favor of the course p. 919) and Executive Order 9881 of Au- of action which will best serve the in- gust 4, 1947 (12 FR 5325; 3 CFR, 1943–1948 terests of the United States and na- Comp., p. 662). tional defense as distinguished from (vi) Midway Island Naval Defensive the private interests of an individual or Sea Area; Midway Island Naval Air- group. space Reservation: Executive Order [28 FR 13778, Dec. 18, 1963, as amended at 35 8682 of February 14, 1941 (6 FR 1015; 3 FR 10008, June 18, 1970] CFR, 1943 Cum. Supp., p. 894) as 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 December 20, 1941 (6 FR 6675; 3 CFR, (ix) Kodiak Naval Defensive Sea 1943 Cum. Supp., p. 1048). Area: Executive Order 8717 of March 22, (ii) Kaneohe Bay Naval Defensive Sea 1941 (6 FR 1621; 3 CFR, 1943 Cum. Supp., Area; Kaneohe Bay Naval Airspace p. 915). Kodiak Naval Airspace Reserva- Reservation: Executive Order 8681 of tion: Executive Order 8597 of November February 14, 1941 (6 FR 1014; 3 CFR, 1943 18, 1940 (5 FR 4559; 3 CFR, 1943 Cum. Cum. Supp., p. 893). Supp., p. 837) as amended by Executive (iii) Pearl Harbor Defensive Sea Order 9720 of May 8, 1946 (11 FR 5105; 3 Area: Executive Order 8143 of May 26, CFR, 1943–1948 Comp., p. 527). 1939 (4 FR 2179; 3 CFR, 1943 Cum. Supp., (x) Unalaska Island Naval Defensive p. 504). Sea Area, Unalaska Island Naval Air- (iv) Johnston Island Naval Defensive space Reservation: Executive Order Sea Area; Johnston Island Naval Air- 8680 of February 14, 1941 (6 FR 1014; 3 space Reservation: Executive Order CFR, 1943 Cum. Supp., p. 892) as amend- 8682 of February 14, 1941 (6 FR 1015; 3 ed by Executive Order 8729 of April 2, CFR, 1943 Cum. Supp., p. 894) as amend- 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., ed by Executive Order 8729 of April 2, p. 919). See § 761.4(d) for delineation of 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., areas where entry controls are sus- p. 919) and Executive Order 9881 of Au- pended. gust 4, 1947 (12 FR 5325; 3 CFR, 1943–1948 (b) Administrative areas. By Executive Comp., p. 662). orders, as amended, the President has (v) Kingman Reef Naval Defensive reserved, set aside, and placed under Sea Area; Kingman Reef Naval Air- the control and jurisdiction of the Sec- space Reservation: Executive Order retary of the Navy for administrative 8682 of February 14, 1941 (6 FR 1015; 3 purposes the following named areas in- CFR, 1943 Cum. Supp., p. 894) as amend- cluding their appurtenant reefs and ed by Executive Order 8729 of April 2, territorial waters:

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(1) Johnston Island—Executive Order tory, shall be made to the High Com- 6935 of December 29, 1934 as amended by missioner for processing in accordance Executive Order 11048 of September 4, with the laws and regulations of the 1962 (27 FR 8851; 3 CFR, 1962 Supp., p. Trust Territory: Provided, That prior to 241). the issuance of an authorization to (2) Kingman Reef—Executive Order enter the Trust Territory, the High 6935 of December 29, 1934 as amended by Commissioner shall provide the De- Executive Order 11048 of September 4, partment of the Navy in all cases (with 1962 (27 FR 8851; 3 CFR, 1962 Supp., p. the exception of alien individuals who 241). possess a valid U.S. visa and seek ad- (3) Midway Island—Executive Order mission to the Trust Territory for a pe- 11048 of September 4, 1962 (27 FR 8851; 3 riod of 30 days or less for the purpose of CFR, 1962 Supp., p. 241). tourism) information on the applicants (4) Sand Island—Executive Order 6935 for its consideration and comment, of December 29, 1934 as amended by Ex- granting thereby the Department of ecutive Order 11048 of September 4, 1962 the Navy the right to object to the (27 FR 8851; 3 CFR, 1962 Supp., p. 241). issuance of an authorization. (c) Trust Territory of the Pacific Is- (3) Ships and aircraft: (i) The entry of lands. The Trust Territory of the Pa- ships and aircraft, other than U.S. pub- cific Islands is a strategic area admin- lic ships and aircraft, documented istered by the United States under the under either the laws of the United provisions of a trusteeship agreement States or the laws of the Trust Terri- with the United Nations. Under Execu- tory into areas of the Trust Territory, tive Order 11021 of May 7, 1962 (27 FR excepting those areas where entry is 4409; 3 CFR, 1959–1963 Comp., p. 600), the controlled by the Department of the Secretary of the Interior is charged Army (Kwajalein Atoll) and the De- with responsibility for administration fense Nuclear Agency (Eniwetok Atoll), of the civil government of the Trust shall be controlled solely by the High Territory of the Pacific Islands. Under Commissioner. July 1, 1963 amendment two agree- (ii) Applications for entry into the ments effective July 1, 1951 and July 1, Trust Territory, except for those areas 1962 between the Department of the under military control, of ships and Navy and the Department of the Inte- aircraft not documented under the laws rior concerning responsibility for ad- of the United States or the laws of the ministration of the Government of the Trust Territory, shall be made to the Trust Territory, the entry of individ- High Commissioner for processing in uals, ships and aircraft into the Trust accordance with the laws and regula- Territory (other than areas under the tions of the Trust Territory: Provided, control of the Department of the Army That prior to the issuance of an au- (Kwajalein Atoll) and of the Defense thorization to enter the Trust Terri- Nuclear Agency (Eniwetok Atoll) see tory, the High Commissioner shall pro- § 761.4) is controlled by the High Com- vide the Department of the Navy in all missioner of the Trust Territory and cases with information on the appli- the Department of the Navy as follows: cants for its consideration and com- (1) Entry of U.S. citizens and nation- ment, granting thereby the right of the als and citizens of the Trust Territory, Department of the Navy to object to into areas of the Trust Territory other the issuance of an authorization. than those areas under control of the (d) [Reserved] Department of the Army and the De- (e) Exercise of authority. The author- fense Nuclear Agency as outlined ity of the Secretary of the Navy to con- above, shall be controlled by the High trol entry of ships, planes, and persons Commissioner. into the areas listed is exercised (2) All other persons: Applications for through the Chief of Naval Operations entry into the Trust Territory except and certain of his subordinates as pre- for those areas under control of the De- scribed in this part. partment of the Army or of the Defense (f) Penalties. Penalties are provided Nuclear Agency, of all persons who are by law: (1) For violations of orders or not U.S. citizens, U.S. nationals, or regulations governing persons or ships who are not citizens of the Trust Terri- within the limits of defensive sea areas

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(62 Stat. 799; 18 U.S.C. 2152); (2) for en- entry into the following Naval Defen- tering military, naval or Coast Guard sive Sea Areas and Naval Airspace Res- property for prohibited purposes or ervations and Administrative Areas after removal or exclusion therefrom have been suspended subject to rein- by proper authority (62 Stat. 765; 18 statement without notice at any time U.S.C. 1382); (3) for violation of regula- when the purposes of national defense tions imposed for the protection or se- may require. curity of military or naval aircraft, (1) All Naval Airspace Reservations, airports, air facilities, vessels, harbors, except the Guantanamo Bay Naval Air- ports, piers, waterfront facilities, space Reservation bases, forts, posts, laboratories, sta- (2) Honolulu Defensive Sea Area. tions, vehicles, equipment, explosives, (3) Kiska Island Naval Defensive Sea or other property or places subject to Area. the jurisdiction, administration, or in (4) Kodiak Island Naval Defensive the custody of the Department of De- Sea Area. fense, any department or agency of (5) Unalaska Island Naval Defensive which said department or agency con- Sea Area. sists, or any officer of employee of said (6) Wake Island Naval Defensive Sea department or agency (sec. 21 of the In- Area except for entry of foreign flag ternal Security Act of 1950 (50 U.S.C. ships and foreign nationals. 797) and Department of Defense Direc- (7) The portion of Kaneohe Defensive tive 5200.8 of 20 August 1954 (19 FR Sea Area lying beyond a 500 yard buffer 5446)); and (4) for knowingly and will- zone around the perimeter of the fully making a false or misleading Kaneohe Marine Corps Air Station statement or representation in any (Mokapu Peninsula) and eastward matter within the jurisdiction of any therefrom to Kapoho Point, Oahu. department or agency of the United (e) Suspension of restrictions on States (18 U.S.C. 1001). entry into a naval airspace reservation, naval defensive sea area, or naval ad- [28 FR 13778, Dec. 18, 1963, as amended at 35 ministrative area, does not affect the FR 10008, June 18, 1970; 36 FR 21889, Nov. 17, 1971; 41 FR 28957, July 14, 1976] authority of a commanding officer or other appropriate commander to con- § 761.4 Special provisions. trol entry into or passage through any base, station, or other installation or (a) Entry into islands in the Kwaja- area, including port or harbor facilities lein Atoll under military jurisdiction under Navy control. is controlled by the Department of the Army. Inquiries concerning entries [41 FR 28957, July 14, 1976] into islands under military control in the Kwajalein Atoll should be directed § 761.5 Definitions. to: National Range Commander, U.S. (a) Defense area. A naval defensive Army Safeguard System Command, sea area, naval airspace reservation, or ATTN: SSC–R, P.O. Box 1500, Hunts- naval administrative area established ville, AL 35807. by Executive order of the President. (b) Entry into Eniwetok Atoll is con- (b) Department of Defense. The De- trolled by the Defense Nuclear Agency. partment of Defense, including the De- Inquiries concerning entries into Eni- partments of the Army, Navy, and Air wetok Atoll should be directed to: Force. Commander, Field Command, Defense (c) Entry authorization. A document Nuclear Agency, Kirtland Air Force which authorizes a ship, aircraft, or Base, NM 87115. person to enter a defense area. (c) Entry into Johnston Atoll is con- (d) Entry Control Commander. A com- trolled by the Defense Nuclear Agency. mander empowered to issue entry au- Inquiries concerning entries into John- thorizations for one or more defense ston Atoll should be directed to: Com- areas (see § 761.9). mander, Johnston Atoll (FCDNA), APO (e) Excluded person. A person who San Francisco, CA 96305. does not hold a currently valid entry (d) Suspension of restrictions. Restric- authorization for the area concerned tions imposed under the authority of and who has been notified by an Entry the above cited Executive Orders on Control Commander that authority for

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him to enter any defense area has been Subpart B—Criteria and Basic denied, suspended or revoked. Controls (f) Foreign nationals. Persons who are not citizens or nationals of the United § 761.6 Criteria. States. (a) General. (1) Entry authorizations (g) Military installation. A military may be issued only after an Entry Con- (Army, Navy, Air Force, Marine Corps, trol Commander, or a duly authorized and/or Coast Guard) activity ashore, subordinate acting in his behalf, has having a commanding officer, and lo- determined that the presence of the cated in an area having fixed bound- person, ship, or aircraft will not, under aries, within which all persons are sub- existing or reasonably foreseeable fu- ject to military control and to the im- ture conditions, endanger, place an mediate authority of a commanding of- undue burden upon, or otherwise jeop- ficer. ardize the efficiency, capability, or ef- (h) Public vessel or aircraft. A ship or fectiveness of any military installation aircraft owned by or belonging to a located within or contiguous to a de- government and not engaged in com- fense area. Factors to be considered mercial activity. shall include, but not be limited to, the (i) Territorial sea—(1) Trust Territory. true purpose of the entry, the personal In accordance with title 19, section history, character and present or past 101(3), of the Trust Territory Code associates of the individuals involved, ‘‘* * * that part of the sea com- the possible burdens or threats to the prehended within the envelope of all defense facilities which the presence of arcs of circles having a radius of three the ship, aircraft or the individual or marine miles drawn from all points of individuals involved impose or might the barrier reef, fringing reef, or other reasonably be expected to impose on reef system of the Trust Territory, the related base complex. measured from the low water line, or, (2) Requests for entry authorizations in the absence of such reef system, the will be evaluated and adjudged as to distance to be measured from the low whether the entry at the time and for water line of any island, islet, atoll, the purpose stated will or will not be reef, or rocks within the jurisdiction of inimical to the purposes of national de- the Trust Territory.’’ fense. (2) Other areas. That part of the sea (b) Adverse. Substantial evidence of included within the envelope of all arcs any of the following shall preclude the of circles having a radius of three ma- granting of entry authorization except rine miles with centers on the low with the specific approval of the Chief water line of the coast. For the purpose of Naval Operations in each case: of this definition, the term ‘‘coast’’ in- (1) Prior noncompliance with entry cludes the coasts of islands, islets, control regulations or failure to ob- rocks, atolls, reefs and other areas of serve terms under which any entry au- land permanently above the high water thorization may have been granted; 1 mark. (2) Willfully furnishing false, incom- (j) Trust Territory Registry. Registra- plete, or misleading information in an tion of a ship or aircraft in accordance application for an entry authorization;1 with the laws of the Trust Territory. (3) Advocacy of the overthrow or al- (k) U.S. Registry. Registration of a teration of the Government of the ship or aircraft in accordance with the United States by unconstitutional laws and regulations of the United means; States. (4) Commission of, or attempt or (l) U.S. Armed Forces. Military per- preparation to commit, an act of espio- sonnel of the Department of Defense, nage, sabotage, sedition, or treason, or the Departments of the Army, Navy, conspiring with or aiding or abetting Air Force, and the United States Coast another to commit such an act; Guard. [28 FR 13778, Dec. 18, 1963, as amended at 35 1 The criteria so marked are applicable FR 10009, June 18, 1970; 41 FR 28958, July 14, only to those applications concerning entry 1976] into areas under military cognizance.

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(5) Performing, or attempting to per- (13) Conviction of larceny of property form, duties, or otherwise acting so as of the United States, willful injury to to serve the interest of another govern- or destruction of property of the ment to the detriment of the United United States, fraudulent enlistment, States; impersonation of a commissioned offi- (6) Deliberate unauthorized disclo- cer of the United States or any state or sure of classified defense information; territory thereof, or any offense involv- (7) Knowing membership with the ing moral turpitude, except offenses, specific intent of furthering the aims which, in the jurisdiction within which of, or adherence to and active partici- the conviction was obtained, are pun- pation in, any foreign or domestic or- ishable by imprisonment for not more ganization, association, movement, than one year or a fine of not more group, or combination of persons (here- than one thousand dollars. 1 inafter referred to as organizations) (c) Aliens. (1) Entry of aliens for em- which unlawfully advocates or prac- ployment or residence in an area en- tices the commission of acts of force or tirely within the borders of a defense violence to prevent others from exer- area is not authorized except when cising their rights under the Constitu- such entry would serve the interests of tion or laws of the United States or of National Defense, and then only for any State, or which seeks to overthrow specified periods and under prescribed the Government of the United States conditions. or any State or subdivision thereof by unlawful means; (2) Entry of aliens for any purpose (8) Serious mental irresponsibility into areas over which the United evidenced by having been adjudged in- States exercises sovereignty is further sane, or mentally irresponsible, or an subject to requirements imposed by incompetent, or a chronic alcoholic, or law for the obtaining of a United treated for serious mental or neuro- States visa. Naval authorization for logical disorders or for chronic alco- entry into areas covered by this part holism, without evidence of cure; 1 will not be issued to foreign nationals (9) Conviction of any of the following for purposes, places, or periods of time offenses under circumstances indic- in excess of those stipulated in the ative of a criminal tendency poten- visa. tially dangerous to the security of a (3) Alien spouses and bona fide de- strategic area containing military es- pendents of U.S. citizen employees of tablishments; arson, unlawful traf- the United States may, if otherwise ficking in drugs, murder, kidnaping, qualified, be granted entry authoriza- blackmail, or sex offenses involving tion so long as the U.S. citizen sponsor minors or perversion. or principal remains on duty or resi- (10) Chronic alcoholism or addiction dent within the defense area. to the use of narcotic drugs without (d) Renewals. Entry authorizations adequate evidence of rehabilitation; 1 having been granted and utilized may (11) Illegal presence in the United be extended or renewed upon request at States, its territories or possessions, the expiration of the period for which having been finally subject to deporta- the entry was originally authorized or tion order, or voluntary departure in extended, provided the justification for lieu of deportation order, by the United remaining in the area or for making a States Immigration and Naturalization reentry meets the criteria set forth in Service; 1 this part. It shall be the responsibility (12) Being the subject of proceedings of every applicant to depart the defense for deportation or voluntary departure area for which entry was authorized in lieu of deportation for any reasons upon expiration of the time prescribed which have not been determined in the in the authorization, unless such au- applicant’s favor; 1 thorization has been extended or renewed. Failure to comply herewith will 1 The criteria so marked are applicable be considered as evidence of violation only to those applications concerning entry into areas under military cognizance.

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of this part and may result in denial of quest disposition instructions from the future authorizations. appropriate Entry Control Commander. [28 FR 13778, Dec. 18, 1963, as amended at 36 (d) Trust Territory. An authorization FR 21890, Nov. 17, 1971; 41 FR 28958, July 14, from the High Commissioner is re- 1976] quired for all persons desiring to enter the Trust Territory, except for those § 761.7 Basic controls. areas under military jurisdiction where (a) General. Except for such persons, entry is controlled by the Department ship, or aircraft as are issued an au- of the Army (Kwajalein Atoll) and the thorization to enter by an Entry Con- Defense Nuclear Agency (Eniwetok trol Commander: Atoll). (1) No person, except persons aboard (e) Military areas. Entries authorized public vessels or aircraft of the United under this Instruction do not affect the States, shall enter any defense area. authority of a commanding officer or (2) No vessel or other craft, except other appropriate commander to im- public vessels of the United States pose and enforce proper regulations shall enter any naval defensive sea pertaining to movement into or within area or other defense area. naval stations or other military instal- (3) No aircraft, except public aircraft lations. of the United States, shall be navigated (f) Waiver prohibited. No officer of the within any naval airspace reservation U.S. Armed Forces, except as author- of the airspace over other defense ized in writing by the Chief of Naval areas. Operations, has authority to waive the (b) Excluded persons—(1) Entry prohib- requirements of this part, and any ited. Excluded persons, as defined in waiver must be in writing and signed § 761.5(e), are prohibited from entering by an authorized person. any defense area. In a bona fide emergency which requires an excluded per- [28 FR 13778, Dec. 18, 1963, as amended at 36 FR 21890, Nov. 17, 1971; 41 FR 28958, July 14, son’s presence in or transit through a 1976] military installation which is also a defense area, the commanding officer of the installation may grant permis- Subpart C—Entry Authorization sion to enter or transit subject to such § 761.8 General. restrictions as may be imposed by regulation or which may, in his discretion, (a) As indicated in § 761.7(a), certain be required. persons, ships, and aircraft must be (2) Carrying prohibited. Except in a specifically authorized under the provi- bona fide emergency and after being sions of this part to enter defense authorized by the appropriate local au- areas. thority, no vessel or aircraft, except (b) When entering or transiting a de- public vessels and aircraft of the fense area each person, ship, or aircraft United States, shall enter into or be must have a valid authorization or sat- navigated within any defense area isfactory evidence thereof. while carrying any excluded person, as defined in this part, as passenger, offi- § 761.9 Entry Control Commanders. cer or crew member. The following commanders are des- (c) Control of violators. No com- ignated Entry Control Commanders manding officer of a military installa- with authority to approve or dis- tion shall permit any ship or aircraft approve individual entry authoriza- which has entered the limits of his tions for persons, ships, or aircraft as command by passing through a defense indicated (Commander Seventeenth area without authorization to land, ex- Coast Guard District has been des- cept in emergency, or, if permitted to ignated an Entry Control Commander land, to disembark passengers or cargo by the authority of the Commandant, except as authorized by the appropriate U.S. Coast Guard and Commander, Entry Control Commander. Com- Western Area, U.S. Coast Guard); manding officers will take appropriate (a) Chief of Naval Operations. Author- action to apprehend violators who ization for all persons, ships, or air- come within their jurisdiction and re- craft to enter all defense areas.

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(b) Commander in Chief, U.S. Atlantic Naval District, as representative of the Fleet. Authorization for all persons, Secretary of the Navy, retains respon- ships, or aircraft to enter defense areas sibility for security of the Honolulu in the Atlantic. Defensive Sea Area, as required by (c) Commander in Chief, U.S. Pacific naval interest, and, as such, issues am- Fleet. Authorization for all persons, plifying instructions relating to the ships, or aircraft to enter defense areas Honolulu Defensive Sea Area. in the Pacific. [41 FR 28958, July 14, 1976] (d) Commander U.S. Naval Forces Car- ibbean. Authorization for all persons, § 761.10 Persons: Group authoriza- ships, and aircraft to enter the Guanta- tions. namo Bay Naval Defensive Sea Area Persons in the following categories, and the Guantanamo Naval Airspace except those persons who have been de- Reservation. (This authority delegated nied individual authorization or have to Commander U.S. Naval Base, Guan- had a prior authorization revoked, may tanamo Bay.) enter the defense areas indicated with- (e) Commander U.S. Naval Base, Guan- out individual authorization: tanamo Bay. Authorization for all per- (a) Persons aboard U.S. public vessels sons, ships, and aircraft to enter the or aircraft entering a Naval Defensive Guantanamo Bay Naval Defensive Sea Sea Area or a Naval Airspace Reserva- Area and the Guantanamo Naval Air- tion. space Reservation. (b) Military members of the U.S. (f) Commander Third Fleet. Authoriza- Armed Forces or U.S. civil service em- tion for U.S. citizens and U.S. reg- ployees of the Department of Defense istered private vessels to enter Midway when traveling on official orders. Island, Kingman Reef, Kaneohe Bay (c) U.S. ambassadors, cabinet mem- Naval Defensive Sea Area, Pearl Har- bers, elected U.S. Government officers bor Defensive Sea Area and Filipino and U.S. citizen civil service employees workers employed by U.S. contractors of the U.S. Government traveling on to enter Wake Island. official orders on U.S. Government (g) Commander U.S. Naval Forces, Mar- business may enter defense areas as re- ianas. Authorization in conjunction quired by their orders. with the High Commissioner, for non- (d) Dependents of military members U.S. citizens, ships, or aircraft docu- of the U.S. Armed Forces and U.S. cit- mented under laws other than those of izen dependents of U.S. civil service the United States or the Trust Terri- employees traveling on official orders tory to enter those portions of the and entering for purposes of joining a Trust Territory where entry is not con- principal permanently stationed in an trolled by the Department of the Army area covered by this part. or the Defense Nuclear Agency. (e) U.S. Navy Technicians, U.S. Army (h) Senior naval commander in defense Contract Technicians, or U.S. Air area. Emergency authorization for per- Force Contract Technicians, who are sons, ships, or aircraft in cases of emer- traveling on official (does not include gency or distress. In all cases the Chief invitational) travel orders on U.S. Gov- of Naval Operations, and as appro- ernment business, may enter defense priate, the Commander in Chief, U.S. areas as specifically required by such Atlantic Fleet or the Commander in orders. Chief, U.S. Pacific Fleet, and other in- (f) [Reserved] terested commands, shall be informed (g) Individuals on board any foreign immediately of the nature of the emer- public vessel or aircraft which has been gency, and action taken. granted diplomatic or other official (i) U.S. Coast Guard. The U.S. Coast U.S. Government authorization to Guard regulates the movement of ship- enter an area covered by this part. ping within the Honolulu Harbor under (h) Through passengers and bona fide the authority of Executive Orders 10173 regularly employed crew members, un- and 10289; such shipping is considered less otherwise excluded, on nonpublic to be under U.S. authorized supervision vessels authorized to enter areas cov- within the meaning of Executive Order ered by this part. This does not include 8987. The Commandant, Fourteenth an authorization to disembark at a

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port contiguous to or within the areas activity has information regarding the covered in this part. Application for applicant or his employer, appropriate authorization to disembark may be comment and/or recommendation for submitted to an Entry Control Com- disposition will be included in the for- mander having jurisdiction over the warding letter. particular port. (b) Form. (1) Applications for entry (i) Through passengers and bona fide authorizations will be made on the regularly employed crew members, un- standard form Statement of Personal less otherwise excluded, on nonpublic History, DD 398, which is available at aircraft authorized to enter areas cov- most military installations. In addi- ered by this part. Such persons are sub- tion to the information required by the ject to local regulations governing form, an entry application shall in- entry into or movement within mili- clude the following additional informa- tary air stations or facilities. Applica- tion under Item 20, ‘‘Remarks’’: tion for authorization to disembark may be submitted to an Entry Control 21. Purpose of proposed visit: (Detailed statement including names of principal per- Commander having jurisdiction over sons, firms, or establishments to be visited) the air facility. 22. Proposed duration of visit: (j) U.S. citizen news correspondents 23. Estimated date of arrival: and photographers when properly ac- 24. Address to which authorization should credited by the Department of Defense be mailed: to enter areas covered by this part 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 the certification and signature of ap- [28 FR 13778, Dec. 18, 1963, as amended at 36 plicant and witness may be utilized. FR 21890, Nov. 17, 1971] (2) Incomplete forms will be returned § 761.11 Persons: Individual authoriza- for completion. tions. (3) When time is of the essence, emergency applications may be forwarded (a) Application; filing. Applications for authorization to enter defense areas by message to the appropriate Entry shall be filed with one of the following: Control Commander. Such messages (1) Chief of Naval Operations. shall include the following: (2) Commander in Chief, U.S. Atlan- (i) Name of applicant. tic Fleet. (ii) Date and place of birth. (3) Commander in Chief, U.S. Pacific (iii) Citizenship. Fleet. (iv) Residence for last ten (10) years. (4) Any Naval Sea Frontier Com- (v) Employers and their addresses for mander. last ten (10) years. (5) Any Naval Fleet or Force Com- (vi) Results of Local Agency Check, if mander. pertinent. (6) Any Naval District Commandant. (vii) Place to be entered and date of (7) Any Naval Attache. The Com- entry. mander or Attache with whom the ap- (viii) Purpose of entry and duration plication is filed is responsible for tak- of stay. ing such action on the application as (ix) Comments and/or recommenda- he may be empowered to do or for for- tions of forwarding officer as appro- warding the application to the nearest priate. Entry Control Commander authorized (x) A statement that a completed DD by this part to take action thereon. 398 or appropriate substitute has been Applications received in the United mailed prior to the sending of the mes- States and those received indicating sage. that the applicant has resided in the (c) Processing. The Entry Control United States for the major portion of Commander empowered to issue entry ten years immediately prior to date of authorizations shall upon receipt of an request will normally be forwarded to application take the following action: the Chief of Naval Operations for ac- (1) Initiate or conduct such investigation. In all cases where the forwarding tion as may be required to establish

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facts upon which to make a determina- ances, to enter defense areas as author- tion that the entry of the applicant at ized by controlling Defense Depart- the time and for the purpose indicated ment agency. is or is not in accordance with the cri- (c) [Reserved] teria set forth in § 761.6. (d) Privately owned local craft, reg- (2) Request additional information istered with and licensed by appro- from the applicant if required, or priate local U.S. Government authori- (3) Issue an entry authorization as re- ties, and owned and operated by local quested or modified as circumstances inhabitants who have been granted an require, or authorization to enter the local defense (4) Deny the request and advise the area at the discretion of the local com- applicant of his right to appeal, or, manders. (5) Forward the application to the (e) Foreign flag ships traveling on next superior in command together diplomatic or other special clearance with a statement of the investigation or for which special arrangements have conducted and the reason for for- been made under international agree- warding and comments or rec- ments or treaties. ommendations as appropriate. (f) Ships operating under a group au- (d) Authorizations. Entry authoriza- thorization issued by the Chief of tions will state the purpose for which Naval Operations. the entry is authorized and such other (g) Ships in distress, subject to local information and conditions as are per- clearances and control by senior officer tinent to the particular authorization. present. Authorizations to enter and re-enter may be issued to resident U.S. citizens [28 FR 13778, Dec. 18, 1963, as amended at 36 and be valid for a specified time not to FR 21890, Nov. 17, 1971] exceed two years. Authorizations may § 761.13 Ships: Individual authoriza- be issued to U.S. citizens residing tions. abroad and to aliens to enter and re- (a) Applications; form; filing. Applica- enter for a specified period of time re- tions for authorization to navigate quired to accomplish the purpose for ships within the limits of defense areas which the authorization was issued not shall be filed with the cognizant Entry to exceed one year. Control Commander by letter or tele- [28 FR 13778, Dec. 18, 1963, as amended at 41 gram including the following informa- FR 28958, July 14, 1976] tion and any additional information that may be relative to the proposed § 761.12 Ships: Group authorizations. operation: Ships or other craft in the following (1) Name of ship. categories, except those ships which (2) Place of registry and registry have been denied individual authoriza- number. tion or have had a prior authorization (3) Name, nationality and address of revoked, may enter the defense areas operator. indicated without individual authoriza- (4) Name, nationality and address of tions: owner. (a) U.S. Public vessels, to enter all (5) Gross tonnage of ship. defense areas. (6) Nationality and numbers of offi- (b) U.S. private vessels which are: (1) cers and crew (include crewlist when Under charter to the Department of practicable). Defense (including the Military Sealift (7) Number of passengers (include list Command), or (2) operating under a when practicable). contract or charter with the Depart- (8) Last port of call prior to entry ment of Defense providing for the em- into area for which clearance is re- ployment of such vessels, or (3) routed quested. by a Naval Control of Shipping Office, (9) Purpose of visit. or (4) employed exclusively in support (10) Proposed date of entry and esti- of and in connection with a Depart- mated duration of stay. ment of Defense construction, mainte- (b) Processing. Authorization for sin- nance, or repair contract and whose gle entries or for multiple entries for a crews carry individual entry clear- period not to exceed one year may be

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granted or denied by an Entry Control (2) If landing at U.S. Air Force avia- Commander. Authorizations for mul- tion facilities, a Civil Aircraft Landing tiple entries for a period to exceed one Permit must be obtained, in accord- year or for special group entries must ance with Department of the Airforce be forwarded to the Chief of Naval Op- Regulation 55–20, Use of United States erations with appropriate comments Air Force installations by other than and recommendations. United States Department of Defense aircraft. § 761.14 Aircraft: Group authoriza- (3) Foreign public aircraft must ob- tions. tain diplomatic clearance or clearance Aircraft in the following categories, under applicable special agreements or except those aircraft which have been treaties. denied individual authorization or have (b) Application; Form; Filing. Applica- had a prior authorization revoked, may tions for authorization to navigate air- enter the defense areas indicated with- craft within the limits of defense areas out individual authorization: shall be made by letter or telegram ad- (a) U.S. public aircraft to enter all dressed to the appropriate entry con- defense areas. trol commander as indicated in § 761.9 (b) U.S. private aircraft which are with information copies to the Chief of under charter to the Department of De- Naval Operations, Commander in Chief, fense (including the Military Airlift U.S. Atlantic (or Pacific) Fleet, as ap- Command), or operating under a con- propriate, and other local commanders tract with the Department of Defense who are known to be concerned. Appli- providing for the employment of such cations shall include the following: aircraft to overfly U.S. island positions (1) Type and serial number of aircraft to enter defense areas as authorized by (the number of aircraft in flight if a controlling Defense Department agen- mass movement is involved), nation- cy. If landing at U.S. military facilities ality and name of registered owner. is required, see § 761.15(a). (2) Name and rank of senior pilot. (c) Foreign flag aircraft for which *(3) Number in crew. special arrangements have been made *(4) Number of passengers and wheth- under international agreements or er military or civilian; include name treaties. (and rank) of distinguished passengers. (d) Aircraft operated by companies (5) Purpose of flight. authorized to utilize naval facilities in (6) Plan of flight route, including: defense areas for regular commercial (i) Point of origin of flight and its activity, to enter defense areas associ- destination. ated therewith. For landing clearance (ii) Estimated date and times of ar- at U.S. military facilities, see rival and departure at all airspaces § 761.15(a). covered by this part 761 including stops (e) Any aircraft in distress, subject to within the Trust Territory, when perti- local clearance and control by senior nent. officer present. (7) Radio call signs of aircraft and radio frequencies available. [41 FR 28958, July 14, 1976] (8) Whether cameras are to be carried and whether they will be used. § 761.15 Aircraft: Individual authorizations. *(9) Whether arms are to be carried. *(10) Whether authorization to land (a) Special procedures. In addition to as indicated in § 761.15(a) has been ob- the entry authorization to enter or tained. navigate within the defense area con- NOTE: Information on those items marked cerned, certain special procedures must with an asterisk (*) need not be reported be followed by aircraft: when the aircraft will only overfly the areas (1) If landing at U.S. naval aviation covered by this part. facilities, an Aviation Facility License (c) Processing. Authorization for indi- must be obtained, in accordance with vidual entries or for multiple entries Secretary of the Navy Instruction for a period not to exceed three months 3770.1B, Use of Department of the Navy may be granted by an Entry Control aviation facilities by other than United States Department of Defense aircraft. *See ‘‘Note’’ to this paragraph.

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Commander. Authorizations for mul- (b) Appeal letters shall be forwarded tiple entries over a period to exceed promptly to the next superior Entry three months and applications for Control Commander with an endorse- group authorizations must be for- ment setting forth the reasons for the warded to the Chief of Naval Oper- denial or revocation and a rec- ations with appropriate comments and ommendation as to the action to be recommendations. taken by the superior. (c) The superior may act on the ap- [41 FR 28958, July 14, 1976] peal and notify the applicant of the decision, or he may forward the appeal to § 761.16 Notice of action. the next superior and notify the appli- All applicants will be kept advised of cant of this referral. action being taken relative to the processing of applications. Individuals [28 FR 13778, Dec. 18, 1963, as amended at 41 FR 28959, July 14, 1976] whose applications cannot be processed promptly (usually within ten working § 761.19 Forms. days) or whose applications must be forwarded to another office for proc- The following forms shall be used in essing will be notified of the antici- connection with the processing of applications for authorization to enter pated delay and advised of the approxi- defense areas and for revocation of au- mate time when action may be ex- thorizations as indicated: pected to be taken. Under no cir- (a) Application. Statement of Per- cumstances will a notice of disapproval sonal History (Form DD 398, Stock include a statement of the reason Number 0102–004–220) may be obtained therefor. Copies of all notices will be from NAVPUBFORMCEN, Building 26, distributed to commands and Entry 5801 Tabor Ave., Philadelphia, PA 19120. Control Commanders concerned. Copies (b) Entry authorization. (1) Defense of all notices of disapproval will be Area Entry Authorization mailed to the Chief of Naval Oper- (OPNAVForm 4600–2 (Rev. 5–59) may be ations concurrently with the mailing obtained from Office of the Chief of to the applicant. Naval Operations (OP–09B33), Navy De- partment, Washington, DC 20350. § 761.17 Revocation. (2) Letter or message authorization. Entry authorizations will be revoked (c) Disapproval of request for entry au- only by an Entry Control Commander thorization. upon being advised of the discovery of information which would have been MY DEAR llllll: Your application of lll has been reviewed and we regret to ad- ground for denial of the initial request. vise you that the requested authorization for Such a revocation will be confirmed in llllllll to enter llllllll is writing to the holder of an entry au- not granted as the entry at this time for the thorization. No reason for revocation purpose stated is not considered to be in the of the entry authorization will be interest of national defense. given. When an entry authorization is The application may be resubmitted again revoked, a one-way permit will be in six months at which time it will be recon- sidered in the light of then existing cir- issued as appropriate, to permit the cumstances. ship, aircraft, or person to transit the If you desire to appeal this decision, you defense area in order to depart from a may do so by submitting a letter to this of- contiguous area. fice setting forth in full why you consider that the granting of the application would be § 761.18 Appeals. in the interest of national defense and any other information that you believe will be of (a) Appeals may be filed with the value of this person considering the appeal. Entry Control Commander who issued Your letter will be forwarded to the appro- the denial or revocation. It shall con- priate authority for review and you will be tain a complete statement of the pur- advised in due course of his determination. pose of the proposed entry and a state- Sincerely yours, ment of reasons why the entry should be authorized, including a showing that (d) Revocation of entry authorization. the entry will be consistent with the MY DEAR llllll: This is to notify you purposes of national defense. that entry authorization to enter

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llllllll granted by (issuing activity) regulations prescribed in Executive on llll is hereby revoked effective this Order 9275. date. (4) Any person violating section 1 of Sincerely yours, Executive Order 9275 (restated in para- [41 FR 28959, July 14, 1976] graph (a)(1) of this section) shall be liable to prosecution as provided in section 44 of the Criminal Code as amend- Subpart D—Additional Instructions ed and reenacted in 18 U.S.C. 2152. § 761.20 Additional regulations gov- (b) The regulations stated in para- erning persons and vessels in Naval graph (a) of this section are not a limi- Defensive Sea Areas. tation on prosecution under any other (a) By virtue of the authority vested statute that may have been violated by in the President by section 44 of the acts or omissions prohibited by Execu- United States Criminal Code, as tive Order 9275. amended and reenacted in 18 U.S.C. 2152, the President has prescribed the PART 762 [RESERVED] following additional regulations in Ex- ecutive Order 9275 of November 23, 1942 PART 763—RULES GOVERNING (7 FR 9767; 1943 Cum. Supp. p. 1227) to PUBLIC ACCESS govern persons and vessels within the limits of defensive sea areas thereto- Subpart A—Entry Regulations for fore or thereafter established. Kaho’olawe Island, Hawaii (1) No person shall have in his possession within the limits of any defensive Sec. sea area, any camera or other device 763.1 Purpose. for taking pictures, or any film, plate 763.2 Definition. 763.3 Background. or other device upon or out of which a 763.4 Entry restrictions. photographic imprint, negative or posi- 763.5 Entry procedures. tive, can be made, except in the per- 763.6 Violations. formance of official duty or employ- AUTHORITY: 50 U.S.C. 797; DOD Dir. 5200.8 of ment in connection with the national August 20, 1954; 5 U.S.C. 301; 10 U.S.C. 6011, 32 defense, or when authorized pursuant CFR 700.702; 32 CFR 700.714; E.O. No. 10436, 3 to the provisions of the Act approved CFR 1949–1953 Comp. p. 930, (1958). June 25, 1942 (Pub. L. 627, 77th Con- SOURCE: 47 FR 27553, June 25, 1982, unless gress), as amended (50 U.S.C. App. 781– otherwise noted. 785), and the regulations promulgated thereunder (7 FR 7307; 32 CFR 765.19(b)). (2) It shall be the duty of the master Subpart A—Entry Regulations for or officer in charge of any vessel to Kaho’olawe Island, Hawaii take custody of and safeguard all cam- § 763.1 Purpose. eras or other devices for taking pictures, or film, plate or other device The purpose of this subpart is to pro- upon or out of which a photographic mulgate regulations for entry to imprint, positive or negative, can be Kaho’olawe Island, Hawaii, and its ad- made, the possession of which is pro- jacent waters. hibited by Executive Order 9275, from any person, prior to the time any ves- § 763.2 Definition. sel enters any defensive sea area or For the purpose of this subpart, upon the boarding by any person of any Kaho’olawe Island includes that por- vessel while within a defensive sea tion reserved for naval purposes by Ex- area, and to retain custody thereof ecutive Order No. 10436 of February 20, until such vessel is outside the defen- 1953. sive sea area or the person is about to disembark. § 763.3 Background. (3) There shall be prominently dis- (a) Kaho’olawe Island is used by the played on board all vessels, except pub- armed forces of the United States as a lic war vessels of the United States training area including bombing and manned by personnel in the naval serv- gunnery training ranges under author- ice, a printed notice containing the ity granted by Executive Order No.

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10436. Training operations frequently sources, persons and organizations involve the use of live ordnance, cre- wishing access to Kaho’olawe Island ating an obvious danger to persons on must comply with the following appro- or near the island. Moreover, a large priate procedures: Civilians (except au- amount of unexploded ordnance is thorized U.S. and State representa- present on Kaho’olawe Island and in tives) must: adjacent waters. (1) Request, in writing, access au- (b) Individuals who enter the island thorization from Commander Naval of Kaho’olawe without authority ex- Base (Code 01K), Pearl Harbor, Hawaii pose themselves to extremely haz- 96860, at least 15 days prior to the ac- ardous conditions. In addition, the cess requested, providing therein con- presence of unauthorized persons on firmed access plans (including the Kaho’olawe Island or in adjacent wa- exact number of visitors, time, and lo- ters is likely to interfere with the use cation of access, designation of person of the island for military training. Ac- in charge, and any other pertinent in- cordingly, it is necessary to prohibit formation); and entry to Kaho’olawe Island except (2) Submit to Commander Naval Base under the controlled circumstances set (at the aforementioned address) prop- forth in this subpart. erly endorsed Standard Liability Re- lease Form (obtainable from Com- § 763.4 Entry restrictions. mander Naval Base), for each access (a) Entry by any person upon participant, at least five (5) days prior Kaho’olawe Island for any purpose is to the requested access. prohibited without advance authoriza- (b) In evaluating each request, the tion from Commander Naval Base. This factors just enumerated will be prohibition applies to all areas of weighed against training commit- Kaho’olawe Island reserved for naval ments, safety requirements, specical purposes by Executive Order 10436. projects, and the amount and cost of (b) Entry by any person into the re- military supervision necessitated by a stricted waters adjacent to Kaho’olawe granting of the request. Requests for Island for any purpose is prohibited entry will be considered on an indi- without advance authorization from vidual basis. If a request is granted, the Commander Naval Base. This prohibi- permission to enter Kaho’olawe Island tion applies to all waters described in authorizes one visit only, and shall not 33 CFR 204.223(4). be construed as authorization for more [47 FR 27553, June 25, 1982, as amended at 52 than one entry unless the authoriza- FR 20074, May 29, 1987] tion itself specifically states otherwise. Moreover, entry pursuant to advance § 763.5 Entry procedures. consent, which is not in accordance (a) It is the policy of the Commander with the terms and conditions per- Naval Base to authorize, in accordance mitted by Commander Naval Base, with the spirit of the American Indian shall be deemed a violation of this sub- Religious Freedom Act (1978), reason- part. able access to Kaho’olawe Island dur- (c) For safety reasons, it is not Com- ing periods when it is not used for mili- mander Naval Base policy to permit tary training. However, because there children below the age of 15 access to are bombs and other explosives on and Kaho’olawe Island. under the surface and in the waters of (d) The following safety regulations the island, and because there are sig- are applicable to visitors to nificant archaeological resources Kaho’olawe Island: thereon (in 1981, the island was placed (1) All visitors to the island are re- on the National Register of Historical quired to execute and submit a waiver Places as an Archaeological District), of government liability form to a des- Navy representatives accompany each ignated Navy representative prior to island visitation to safeguard both the arrival at the island. vistitor(s) and the island’s archae- (2) Visitors to the island will be es- ological resources. In this regard, in corted by Navy designated Explosive order to ensure the safety of visitors to Ordnance Disposal (EOD) technicians the island and its archaeological re- to ensure that they stay on cleared

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paths, avoid impact areas, and do not or the State of Hawaii Penal Code, as touch high explosives. For visitor safe- incorporated under the Federal Assimi- ty, the directions of the military es- lative Crimes Act, while on the island corts must be followed. of Kaho’olawe. Any individual who vio- (3) No person will interfere with any lates any provisions of these penal EOD escort in the performance of his codes may be prosecuted by the Fed- duties. eral Government and/or barred from (4) Any actual or suspected ordnance any future access to Kaho’olawe. found by a visitor shall be reported to (9) No person shall deface, alter, re- the Special Assistant for Kaho’olawe as move, spoil, or destroy any archeo- soon as possible. If he is not in the vi- logical object, feature, or site on the is- cinity, a description and location of land. the ordnance should be provided to the (10) Children shall remain with their nearest EOD technician. Everyone, parents at all times while on the is- other than EOD personnel, shall re- land. main clear of any ordnance found. (11) Visitors are responsible for re- (5) Only the qualified EOD techni- moving their own trash from the is- cians shall touch, examine, remove, at- land. tempt to remove, handle either di- (12) Individuals failing to abide by rectly or indirectly, or detonate any these safety guidelines will be pre- ordnance, whether found on the sur- cluded from future visitations. face, beneath the surface or in the waters surrounding Kaho’olawe. [47 FR 27553, June 25, 1982, as amended at 52 FR 20074, May 29, 1987; 52 FR 45455, Nov. 30, (6) Any proposed hike and procession 1987] route shall be provided to the Special Assistant for Kaho’olawe (or his des- § 763.6 Violations. ignated representative) for approval (a) Any person who violates this sub- and escort coordination at least twen- part is subject to prosecution under 18 ty-four hours in advance of the planned U.S.C. 1382, which provides in relevant event. Deviation from approved routes part: will not be allowed. Proposed camp- sites for overnight hikes shall be simi- Whoever * * * goes upon any * * * naval larly provided to, and approved by, the * * * reservation * * * for any purpose pro- Special Assistant for Kaho’olawe or his hibited by law or lawful regulation * * * designated representative. shall be fined not more than $500 or impris- (7) No person shall move about the is- oned not more than six months, or both. land after sunset unless a bonafide (b) Additionally, persons who violate emergency situation arises. The senior this Subpart are subject to prosecution Naval officer present shall be imme- under the Internal Security Act of 1950 diately notified in case of such emer- (50 U.S.C. 797), violations of which may gency. result in a maximum penalty of impris- (8) No person shall commit any of- onment for one year, or a fine of $5,000 fense proscribed by either Federal law 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 the ’’ gated from time to time by the Chief of estimated costs of landing, hangar and Naval Material. outside parking fees, for 3 months in (2) Upon approval, he will then exe- 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 guarantee extension or amendment of government when the sunken vessel or the original permit. Therefore, you aircraft is located in foreign waters. To must submit an extension request to the extent reasonably possible, the en- NHC at least 30 days prior to the origi- vironment must be returned to the nal permit’s expiration date. Reference condition that existed before the activ- to the original application may be ity occurred. given in lieu of a new application, pro- (c) Upon completion of permitted ac- vided the scope of work does not tivities, the permit holder is required change significantly. Applicants may to submit to NHC a working and diving apply for one-year extensions subject log listing days spent in field research, to annual review. activities pursued, and working area (c) Permit holders may appeal denied positions. requests for amendments or extensions (d) The permit holder must prepare to the appeal authority listed in § 767.5. and submit a final report as detailed in § 767.9, summarizing the results of the § 767.9 Content of permit holder’s final report. permitted activity. (e) The permit holder must agree to The permit holder’s final report shall protect all sensitive information re- include the following: (a) A site history and a contextual garding the location and character of history relating the site to the general the wreck site that could potentially history of the region; expose it to non-professional recovery (b) A master site map; techniques, looters, or treasure hunt- (c) Feature map(s) of the location of ers. Sensitive information includes spe- any recovered artifacts in relation to cific location data such as latitude and their position within the wrecksite; longitude, and information about a (d) Photographs of significant site wreck’s cargo, the existence of arma- features and significant artifacts both ments, or the knowledge of gravesites. in situ and after removal; (f) All recovered DON cultural re- (e) If applicable, a description of the sources remain the property of the conserved artifacts, laboratory con- United States. These resources and servation records, and before and after copies of associated archaeological photographs of the artifacts at the con- records and data will be preserved by a servation laboratory; suitable university, museum, or other (f) A written report describing the scientific or educational institution site’s historical background, environ- and must meet the standards set forth ment, archeological field work, results, in 36 CFR part 79, Curation of Feder- and analysis; (g) A summary of the survey and/or ally Owned and Administered Archeo- excavation process; and logical Collections, at the expense of (h) An evaluation of the completed the applicant. The repository shall be permitted activity that includes an as- specified in the permit application. sessment of the permit holder’s success of his/her specified goals.

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§ 767.10 Monitoring of performance. cavation and/or removal of archeo- Permitted activities will be mon- logical resources on public lands or In- itored to ensure compliance with the dian lands. conditions of the permit. NHC on-site (d) Secretary of the Interior’s regula- personnel, or other designated authori- tions, Curation of Federally-Owned and ties, may periodically assess work in Administered Archeological Collec- progress by visiting the study location tions, 36 CFR part 79. These regulations and observing any activity allowed by establish standards for the curation the permit or by reviewing any re- and display of federally-owned artifact quired reports. The discovery of any collections. potential irregularities in performance (e) Antiquities Act of 1906, Public under the permit will be promptly re- Law 59–209, 34 Stat. 225 (codified at 16 ported and appropriate action will be U.S.C. 431 et seq. (1999)). taken. Permitted activities will be (f) Executive Order 11593, 36 FR 8291, evaluated and the findings will be used 3 CFR, 1971–1975 Comp., p. 559 (Protec- to evaluate future applications. tion and Enhancement of the Cultural Environment). § 767.11 Violations of permit condi- (g) Department of Defense Instruc- tions. tion 4140.21M (DoDI 4120.21M, August The Director of Naval History, the 1998). Subject: Defense Disposal Man- Underwater Archeologist for DON, or ual. his/her designee may, amend, suspend, (h) Secretary of the Navy Instruction or revoke a permit in whole or in part, 4000.35 (SECNAVINST 4000.35, 17 Au- temporarily or indefinitely, if in his/ gust 1992). Subject: Department of the her view the permit holder has acted in Navy Cultural Resources Program. violation of the terms of the permit or (i) Naval Historical Center Instruc- of other applicable regulations, or for tion 5510.4. (NAVHISTCENINST 5510.4, other good cause shown. Any such ac- 14 December 1995). Subject: Disclosure tion will be communicated in writing of Information from the Naval Ship- to the permit holder and will set forth wreck Database. the reason for the action taken. The permit holder may appeal the action to PARTS 768–769 [RESERVED] the appeal authority listed in § 767.5. PART 770—RULES LIMITING PUBLIC § 767.12 References for submission of permit application to conduct ar- ACCESS TO PARTICULAR INSTAL- cheological research. LATIONS (a) National Historic Preservation Act of 1966, as amended (NHPA), 16 Subpart A—Hunting and Fishing at Marine U.S.C. 470 et seq. (1999), and Protection Corps Base, Quantico, Virginia of Historic Properties, 36 CFR part 800. Sec. These regulations govern the Section 770.1 Purpose. 106 Review Process established by the 770.2 Licenses. NHPA. 770.3 Fishing regulations. (b) Secretary of the Interior’s Stand- 770.4 Hunting regulations. ards and Guidelines for Archeology and 770.5 Safety regulations. Historic Preservation published on 770.6 Restrictions. 770.7 Violations and environmental regula- September 29, 1983 (48 FR 44716). These tions. guidelines establish standards for the 770.8 Reports. preservation planning process with 770.9 Miscellaneous. guidelines on implementation. (c) Archeological Resources Protec- Subpart B—Base Entry Regulations for tion Act of 1979, as amended (ARPA), 16 Naval Submarine Base, Bangor, U.S.C. 470aa-mm, and the Uniform Reg- Silverdale, Washington ulations, 43 CFR part 7, subpart A. 770.15 Purpose. These regulations establish basic gov- 770.16 Definition. ernment-wide standards for the 770.17 Background. issuance of permits for archeological 770.18 Entry restrictions. research, including the authorized ex- 770.19 Entry procedures.

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770.20 Violations. Subpart A—Hunting and Fishing at Subpart C—Base Entry Regulations for Marine Corps Base, Quantico, Naval Installations in the State of Hawaii Virginia

770.25 Purpose. SOURCE: 41 FR 22345, June 3, 1976, unless 770.26 Definitions. otherwise noted. 770.27 Background. 770.28 Entry restrictions. § 770.1 Purpose. 770.29 Entry procedures. This subpart provides regulations 770.30 Violations. and related information governing 770.31 List of major naval installations in hunting and fishing on the Marine the State of Hawaii and cognizant commanders authorized to grant access Corps Base Reservation, Quantico, VA. under these regulations. § 770.2 Licenses. Subpart D—Entry Regulations for Naval (a) Every person who hunts or fishes Installations and Property in Puerto Rico on Marine Corps Base, Quantico, VA, must possess appropriate valid licenses 770.35 Purpose. in compliance with the Laws of the 770.36 Definitions. United States and the State of Vir- 770.37 Background. ginia. 770.38 Entry restrictions. (b) In addition, hunting and fishing 770.39 Entry procedures. privilege cards, issued by the authori- 770.40 Violations. ties at Marine Corps Base, Quantico, VA, are required for all persons be- Subpart E—Base Entry Regulations for tween the ages sixteen and sixty-four, Naval Submarine Base New London, inclusive. Groton, Connecticut (1) The privilege card may be pur- 770.41 Purpose. chased from the Natural Resources and 770.42 Background. Environmental Affairs Branch, Build- 770.43 Responsibility. ing 5–9, Marine Corps Base, Quantico, 770.44 Entry restrictions. VA. 770.45 Entry procedures. (2) The privilege cards are effective 770.46 Violations. for the same period as the Virginia hunting and fishing licenses. Subpart F—Base Entry Regulations for (c) All hunters must obtain a Base Puget Sound Naval Shipyard, Brem- hunting permit, and a parking permit, erton, Washington if applicable, from the Game Check Station, Building 5–9 Station (located 770.47 Purpose. 770.48 Definition. at the intersection of Russell Road and 770.49 Background. MCB–1) for each day of hunting. The 770.50 Entry restrictions. hunting permit must be carried by the 770.51 Entry procedures. hunter and the parking permit must be 770.52 Violations. displayed on the left dashboard of parked vehicles. The hunting and park- Subpart G—Entry Regulations for Ports- ing permits must be returned within mouth Naval Shipyard, Portsmouth, one hour after either sunset or the New Hampshire hour hunting is secured on holidays or during special season. 770.53 Purpose. (d) Eligibility for a Base hunting per- 770.54 Background. mit is predicated on: 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; AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 6011; 32 (2) Attendance at a safety lecture CFR 700.702; 32 CFR 700.714, unless otherwise given daily except Sunday during the noted. hunting season given at the Game Check Station. The lectures commence

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

§ 770.3 Fishing regulations. § 770.5 Safety regulations. (a) All persons possessing the proper (a) Hunting is not permitted within state license and Base permit are per- 200 yards of the following: Ammunition mitted to fish in the areas designated dumps, built-up areas, rifle or pistol by the Annual Fishing Regulations on ranges, dwelling or other occupied Marine Corps Base, Quantico, VA, on structures, and areas designated by the any authorized fishing day. A Base Annual Hunting Bulletin as recreation Fishing Privilege Card is required for areas. all persons aged 16 to 65. (b) From the end of the special arch- (b) Fishing is permitted on all waters ery season until the end of the regular within the boundaries of Marine Corps firearms winter hunting season, except Base, Quantico, VA, unless otherwise for duck hunters in approved blinds, posted, under the conditions and restrictions 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]

§ 770.4 Hunting regulations. § 770.6 Restrictions. All persons possessing the proper (a) There will be no hunting on State, Federal and Base licenses and Christmas Eve, Christmas Day, New permits are permitted to hunt in the Years Day, or after 1200 on Thanks- areas designated daily by the Annual giving Day.

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(b) Hunters under 18 years of age sible judicial proceedings in State or must be accompanied by an adult (21 Federal courts. years of age or older) while hunting or (a) The Marine Corps Base Game in a hunting area. The adult is limited Wardens are Federal Game Wardens. to a maximum of two underage hunt- They have authority to issue summons ers, and must stay within sight and to appear in Federal court for game voice contact and no more than 100 violations. yards away from the underage hunters. (b) Offenders in violation of a Federal (c) The following practices or actions or State hunting or fishing laws will be are expressly forbidden: Use of rifles, referred to a Federal court. except muzzleloaders of .40 caliber or (c) Offenders in violation of a Fed- larger as specified below, revolvers or eral, State or Base hunting or fishing pistols; use of shotguns larger than 10 law or regulation will receive the fol- gauge or crossbows (this prohibition lowing administrative actions. extends to carrying such weapons on (1) The Base Game Warden shall have the person or in a vehicle while hunt- the authority to temporarily suspend ing), use of buckshot to hunt any hunting and fishing privileges. game; use of a light, attached to a ve- (2) Suspensions of hunting and fish- hicle or otherwise, for the purpose of ing privileges will be outlined in the spotting game; use of dogs for hunting Annual Fish and Wildlife Procedures or tracking deer; training deer dogs on Manual. the Reservation; training or running (d) Civilians found in violation of a dogs in hunting areas between 1 March hunting or fishing regulation or law and 1 September; driving deer; baiting may be permanently restricted from or salting traps or blinds; hunting on entering the base. Sunday; molesting wildlife. Those per- (e) Serious hunting and fishing of- sonnel who are authorized to hunt on fenses include, but are not limited to: Base, desiring to train or exercise dogs spotlighting, false statement on a li- other than deer dogs between 2 Sep- cense, 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 before one half hour before sunrise, and § 770.8 Reports. 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- (e) Weapons will not be loaded out- cass before moving the game from the side of hunting hours. place of kill. The game will then be (f) There will be no use of a muzzle- taken to the Game Checking Station loader or slug shotgun after obtaining where the tab will be exchanged for an the daily or yearly game bag limits. official game tag. All other game, not (g) There will be no possession or use requiring a tag, killed on the Reserva- of drugs or alcohol while checked out tion will be immediately reported to to hunt. the Game Warden when checking out [41 FR 22345, June 3, 1976, as amended at 48 at the end of a hunt. FR 23205, May 24, 1983; 65 FR 53592, Sept. 5, [41 FR 22345, June 3, 1976, as amended at 48 2000] FR 23206, May 24, 1983; 65 FR 53592, Sept. 5, 2000] § 770.7 Violations and environmental regulations. § 770.9 Miscellaneous. Violations of hunting regulations, Refer to the Annual Fishing and fishing regulations, safety regulations, Hunting Bulletins that will cover any or principles of good sportsmanship are annual miscellaneous changes. subject to administrative restriction of hunting or fishing privileges and pos- [65 FR 53592, Sept. 5, 2000]

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Subpart B—Base Entry Regulations Base, Bangor, or remaining thereon by for Naval Submarine Base, any person whatsoever for any purpose Bangor, Silverdale, Wash- without the advance consent of the ington Commanding Officer, SUBASE Bangor or his authorized representative is prohibited. See, 18 U.S.C. 1382; the Internal AUTHORITY: 50 U.S.C. 797; DoDDir. 5200.8 of Security Act of 1950, Section 21 (50 April 25, 1991; 5 U.S.C. 301; 10 U.S.C. 6011; 32 CFR 700.702; 32 CFR 700.714. U.S.C. 797); Department of Defense Di- rective 5200.8 of 25 April 1991; Secretary SOURCE: 44 FR 32368, June 6, 1979, unless of the Navy Instruction 5511.36A of 21 otherwise noted. July 1992. § 770.15 Purpose. [44 FR 32368, June 6, 1979, as amended at 65 The purpose of this subpart is to pro- 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 desiring the advance consent of the § 770.16 Definition. Commanding Officer, SUBASE Bangor For the purpose of this subpart, or his authorized representative shall, SUBASE Bangor shall include that in writing, submit a request to the area of land in Kitsap and Jefferson Commanding Officer, Naval Submarine Counties, State of Washington which Base, Bangor, 1100 Hunley Road, has been set aside for use of the Fed- Silverdale, WA 98315. eral Government by an Act of the legis- (b) Each request for entry will be lature of the State of Washington, ap- considered on an individual basis proved March 15, 1939 (Session laws of weighing the operational, security, and 1939, chapter 126). safety requirements of SUBASE Ban- § 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. to restrict entry upon SUBASE Bangor to authorized persons only. (b) Moreover, any person who willfully violates this subpart is subject to § 770.18 Entry restrictions. a fine not to exceed $5,000 or imprisonment for not more than one (1) year or Except for military personnel and civilian employees of the United States both as provided in 50 U.S.C. 797. in the performance of their official du- [44 FR 32368, June 6, 1979, as amended at 65 ties, entry upon Naval Submarine FR 53592, Sept. 5, 2000]

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Subpart C—Base Entry Regulations any purpose not connected with sugar for Naval Installations in the cane production. State of Hawaii § 770.27 Background. (a) Naval installations in Hawaii con- AUTHORITY: 50 U.S.C. 797; DoD Dir. 5200.8 of Aug. 20, 1954; 5 U.S.C 301; 10 U.S.C. 6011; 32 stitute a significant element of the na- CFR 700.702, 770.714. tional defense establishment. It is vital to the national defense that the use of SOURCE: 44 FR 76279, Dec. 26, 1979, unless such areas be at all times under the otherwise noted. positive control of the Department of § 770.25 Purpose. the Navy. Strict control must be exercised over access to naval installations The purpose of this subpart is to pro- in order to preclude damage accidental mulgate regulations governing entry to and intentional to Government prop- naval installations in the State of Ha- erty, injury to military personnel, and waii. interference in the orderly accomplishment of the mission of command. § 770.26 Definitions. (b) There are several industrial areas For the purpose of this subpart the within naval installations in Hawaii following definitions apply: wherein construction activities and the (a) Naval installations. A naval instal- use of heavy machinery pose grave risk lation is a shore activity and is any of danger to visitors. area of land, whether or not fenced or (c) Various types of flammable or in- covered by water, that is administered cendiary materials and ordnance are by the Department of the Navy or by stored at a number of locations within any subordinate naval command. The naval installations in Hawaii. term ‘‘naval installation’’ applies to all (d) Classified documents and equip- such areas regardless of whether the ment requiring protection from unau- areas are being used for purely mili- thorized disclosure by Executive order tary purposes, for housing, for support 12065 for reasons of national security purposes, or for any other purpose by a are located at various locations within naval command. Section 770.31 con- naval installations in Hawaii. tains a list of the major naval installa- (e) In order to effect the positive con- tions in Hawaii. This list is not consid- trol of the Navy over its installations ered to be all inclusive and is included in Hawaii, it is essential that entry only as a representative guide. For the onto those installations be restricted purposes of this subpart the area of to authorized persons only. water within Pearl Harbor is considered to be within a naval installation. (f) These entry regulations are being promulgated under the authority of (b) Outleased areas. Certain portions Commander, Naval Base, Pearl Harbor, of naval installations in Hawaii which who has been assigned as immediate are not for the time needed for public area coordinator for all naval installa- use or for which a dual use is feasible tions in the State of Hawaii by Com- have been outleased to private inter- mander-in-Chief, U.S. Pacific Fleet. ests. Examples of such outleased areas are the Moanalua Shopping Center and § 770.28 Entry restrictions. lands such as Waipio Peninsula, which has been outleased for agricultural pur- Each commander is responsible for poses. For the purpose of this Subpart, the security of his/her command. outleased areas which are not within Therefore, entry onto a command or fenced portions of naval installations into part of a command may be con- are not considered to be a part of naval trolled by the commander through the installations. Rules for entry onto the imposition of such restrictions as may outleased areas are made by the les- be required by attendant cir- sees, except in the case of Waipio Pe- cumstances. Within the State of Ha- ninsula where the lessee (Oahu Sugar waii, entry into a naval installation is Company) is not authorized to allow not permitted without the permission anyone to enter Waipio Peninsula for of the responsible commander.

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§ 770.29 Entry procedures. § 770.31 List of major naval installations in the State of Hawaii and (a) Operational, security, and safety cognizant commanders authorized considerations take priority over re- to grant access under these regula- quests by individuals to visit a naval tions. installation. Consistent with such con- (a) On Oahu. (1) Naval Base, Pearl siderations, visits by members of the Harbor (including the Naval Station, general public may be authorized at Naval Submarine Base, Naval Ship- the discretion of the commander. The yard, Naval Supply Center, Naval Pub- commitment of resources which would lic Works Center, Marine Barracks, be required to safeguard the persons Ford Island, Bishop Point Dock Area, and property of visitors as well as mili- Commander-in-Chief Pacific Fleet and tary property and personnel must of Commander Naval Logistics Command necessity preclude or severely restrict Headquarters Areas, Johnson Circle such visiting. The purpose and dura- Navy Exchange/Commissary Store tion of the visit and the size of the Area, Navy-Marine Golf Course, mis- party and areas to be visited are other cellaneous other commands, and areas considerations which may affect the within the Naval Base, Pearl Harbor commander’s decision whether to per- complex, and the waters of Pearl Har- mit visiting by members of the public. bor). Contact: (b) Any person or group desiring to Commander, Naval Base, Pearl Harbor, HI enter a particular naval installation or 96860. portion thereof, shall submit a written (2) Naval Western Oceanography Cen- request to the commander of the inter, Pearl Harbor. Contact: stallation well enough in advance to Commanding Officer, Naval Western Ocean- allow a reasonable time for reply by ography Center, Box 113, Pearl Harbor, HI mail. Mailing addresses for com- 96860. manders of major installations covered (3) Naval Air Station, Barbers Point. by this subpart are listed in § 770.31. Contact: Full compliance with a naval installation’s local visitor registration and Commanding Officer, Naval Air Station, Bar- entry control procedures shall be bers Point, HI 96862. 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 (5) Naval Magazine (Lualualei, to enter any other naval installation or Waikele, and West Loch). Contact: all portions of an installation. Commanding Officer, Naval Magazine, § 770.30 Violations. Lualualei, HI 96792. (a) Any person entering or remaining (6) Naval Radio Transmitting Facil- on a naval installation in the State of ity, Lualualei. Contact: Hawaii, without consent of the com- Commanding Officer, Naval Base, Pearl Har- mander or his authorized representa- bor, HI 96860. tive, shall be subject to the penalties of (7) Naval and Marine Corps Reserve a fine of not more than $500 or impris- Training Center, Honolulu. Contact: onment for not more than six months, or both. See 18 U.S.C. 1382. Commanding Officer, Naval and Marine Corps Reserve Training Center, Honolulu, (b) Moreover, any person who will- 530 Peltier Avenue, Honolulu, HI 96818. fully violates this regulation is subject to a fine not to exceed $5,000 or impris- (8) Military Sealift Command Office. onment for one year, or both. See 50 Contact: U.S.C. 797. Commander, Naval Base, Pearl Harbor, HI 96860.

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(9) Mauna Kapu (Pacific Missile Commander Naval Base, Pearl Harbor, HI Range Facility). Contact: 96860. Commanding Officer, Pacific Missile Range [44 FR 76279, Dec. 26, 1979, as amended at 52 Facility, Hawaiian Area, Barking Sands, FR 20074, May 29, 1987] Kekaha, Kauai, HI 96752. (10) Kunia Facility; FORACS III Subpart D—Entry Regulations for Sites; Degaussing Station, Waipio Pe- Naval Installations and Prop- ninsula; Damon Tract (Remanant) erty in Puerto Rico Opana Communciations Site. Contact: Commander, Naval Base, Pearl Harbor, HI SOURCE: 46 FR 22756, Apr. 21, 1981, unless 96860. otherwise noted. (11) Outlying areas of the Naval Sup- § 770.35 Purpose. ply Center, Pearl Harbor (including the The purpose of this subpart is to pro- Ewa Junction Storage Area, Ewa Drum mulgate standard regulations and pro- Storage Area, Manana Supply Area, cedures governing entry upon U.S. Pearl City Supply Area, and the Red Naval installations and properties in Hill Fuel Storage Area). Contact: Puerto Rico. Commander, Naval Base, Pearl Harbor, HI 96860. § 770.36 Definitions. (12) Pump Stations (Halawa, Waiawa, For purposes of these regulations, Red Hill, and Barbers Point). Contact: U.S. Naval installations and properties in Puerto Rico include, but are not Commander, Naval Base, Pearl Harbor, HI limited to, the U.S. Naval Station, 96860. Roosevelt Roads (including the Vieques (13) Halawa Water Storage Area; Bar- Island Eastern Annexes, consisting of bers Point, Independent Water Supply Camp Garcia, the Eastern Maneuver Reservoir Site; Sewage Treatment Area, and the Inner Range); the Naval Plant; Fort Kam (tri-service); Utility Ammunition Facility, Vieques Island; Corridors, Lynch Park (Ohana Nui). and the Naval Security Group Activity, Contact: Sabana Seca.

Commander, Naval Base, Pearl Harbor, HI § 770.37 Background. 96860. In accordance with 32 CFR 765.4, (14) Navy housing areas (including Naval installations and properties in Moanalua Terrace, Radford Terrace, Puerto Rico are not open to the gen- Makalapa, Maloelap, Halsey Terrace, eral public, i.e., they are ‘‘closed’’ mili- Catlin Park, Hale Moku, Pearl Harbor, tary bases. Therefore admission to the Naval Shipyard, McGrew Point, general public is only by the permis- Halawa, Hokulani, Manana, Pearl City sion of the respective Commanding Of- Peninsula, Red Hill, Iroquois Point, ficers in accordance with their respec- Puuloa, and Camp Stover). Contact: tive installation instructions. Commander, Naval Base, Pearl Harbor, HI 96860. § 770.38 Entry restrictions. (b) On Kauai. Except for duly authorized military (1) Pacific Missile Range Facility, personnel and civilian employees, in- Barking Sands, Kekaha. cluding contract employees, of the United States in the performance of Contact: Commanding Officer, Pacific Mis- their official duties, entry upon any sile Range Facility, Hawaiian Area, Bark- U.S. Navy installation or property in ing Sands, Kekaha, HI 96752. Puerto Rico at anytime, by any person (c) Other areas. for any purpose whatsoever without (1) Kaho’olawe Island. Contact: the advance consent of the Com- manding Officer of the installation or Commander Naval Base, Pearl Harbor, HI property concerned, or an authorized 96860. Also see 32 CFR Part 763. representative of that Commanding Of- (2) Kaula. Contact: ficer, is prohibited.

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§ 770.39 Entry procedures. regulation * * * shall be fined not more than $500.00 or imprisoned not more (a) Any person or group of persons than six months, or both, or any other desiring to obtain advance consent for ’’ applicable laws or regulations. entry upon any U.S. Naval installation or property in Puerto Rico from the Commanding Officer of the Naval in- Subpart E—Base Entry Regulations stallation or property, or an authorized for Naval Submarine Base representative of that Commanding Of- New London, Groton, Con- ficer, shall present themselves at an necticut authorized entry gate at the 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 (1) Commanding Officer, U.S. Naval CFR 700.702; 32 CFR 700.714. 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- tion Facility, Box 3027, Ceiba, PR 00635. § 770.41 Purpose. (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- bean, Box 3037, Ceiba, PR 00635. § 770.42 Background. (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, with- Except for military personnel, their in the jurisdiction of the United authorized dependents, or guests, and States, goes upon any military, naval employees of the United States in the * * * reservation, post, fort, arsenal, performance of their official duties, yard, station, or installation, for any entry upon Naval Submarine Base New purpose prohibited by law or lawful London, or remaining thereon by any

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person for any purpose without the ad- Subpart F—Base Entry Regulations vance consent of the Commanding Offi- for Puget Sound Naval Ship- cer, Naval Submarine Base New Lon- yard, Bremerton, Washington don, or his authorized representative is prohibited. See 18 U.S.C. 1382j, the In- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 6011; 50 ternal Security Act of 1950 (50 U.S.C. U.S.C. 797; DoD Directive 5200.8 of April 25, 797); Chief of Naval Operations Instruc- 1991; SECNAVINST 5511.36A of July 21, 1992; tion 5510.45B of April 19, 1971; and Sec- OPNAVINST 5530.14C of December 10, 1998; 32 retary of the Navy Instruction 5511.36 CFR 700.702; 32 CFR 700.714. of December 20, 1980. SOURCE: 65 FR 53592, Sept. 5, 2000, unless otherwise noted. § 770.45 Entry procedures. (a) Any individual person or group of § 770.47 Purpose. persons desiring the advance consent of To promulgate regulations and proce- the Commanding Officer, Naval Sub- dures governing entry upon Puget marine Base New London, or his au- Sound Naval Shipyard, and to prevent thorized representative shall, in writ- the interruption of the functions and ing, submit a request to the Com- operations of Puget Sound Naval Ship- manding Officer, Naval Submarine yard by the presence of any unauthor- Base New London, at the following ad- ized person within the boundaries of dress: Commanding Officer (Attn: Se- the Puget Sound Naval Shipyard. curity Officer), Box 38, Naval Sub- § 770.48 Definition. marine Base New London, Groton, CT 06349. For the purpose of this subpart, (b) Each request for entry will be Puget Sound Shipyard shall include that area of land, whether or not considered on an individual basis fenced or covered by water, in Kitsap weighing the operational, security, and County in the State of Washington safety requirements of Naval Sub- under the operational control of the marine Base New London with the pur- Commander, Puget Sound Naval Ship- pose, size of party, duration of visit, yard or any tenant command. This in- destination, and military resources cludes all such areas regardless of which would be required by the grant- whether the areas are being used for ing of the request. purely military purposes, for housing, for support purposes, or for any other § 770.46 Violations. purpose by a naval command or other (a) Any person entering or remaining Federal agency. on Naval Submarine Base New London, without the consent of the Com- § 770.49 Background. manding Officer, Naval Submarine (a) Puget Sound Naval Shipyard is a Base New London or his authorized major naval ship repair facility, with representative, shall be subject to the operational requirements to complete penalties prescribed in 18 U.S.C. 1382, repairs and overhaul of conventionally which provides in pertinent part: powered and nuclear powered naval vessels. It is vital to national defense Whoever, within the jurisdiction of the that the operation and use of the ship- United States, goes upon any military, naval yard be continued without interrup- . . . reservation, post, fort, arsenal, yard, tion. Additionally, most of Puget station, or installation, for any purpose pro- Sound Naval Shipyard is dedicated to hibited by law or lawful regulation . . . shall heavy industrial activity where poten- be fined not more than $500 or imprisoned not more than six months or both. tially hazardous conditions exist. (b) For prevention of the interruption (b) Moreover, any person who will- of the stated use of Puget Sound Naval fully violates this subpart is subject to Shipyard and prevention of injury to a fine not to exceed $5000 or imprison- any unsupervised or unauthorized per- ment for not more than one (1) year or son as a consequence of the hazardous both as provided in 50 U.S.C. 797. conditions that exist, as well as for 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 sub- Except for military personnel, their ject to a fine not to exceed $5000 or im- authorized dependents, or guests, and prisonment for not more than one (1) civilian employees of the United States year, or both, as provided by 50 U.S.C. in the performance of their official du- 797. ties, 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 and scope. 775.2 Definitions. § 770.57 Entry procedures. 775.3 Policy. (a) Any person or group desiring the 775.4 Responsibilities. advance consent of the Commander, 775.5 Classified actions. Portsmouth Naval Shipyard, or his au- 775.6 Planning considerations. thorized representative, shall, in writ- 775.7 Time limits for environmental docu- ing, submit a request to the Com- ments. 775.8 Scoping. mander, Portsmouth Naval Shipyard, 775.9 Documentation and analysis. at the following address: Commander, 775.10 Relations with state, local and re- Portsmouth Naval Shipyard, Ports- gional agencies. mouth, NH 03801, Attention: Security 775.11 Public participation. Manager (Code 1700). For groups, for- 775.12 Delegation of authority. eign citizens, and news media, the re- AUTHORITY: 5 U.S.C. 301; 42 U.S.C. 4321–4361; quest must be forwarded to the Com- 40 CFR parts 1500–1508. mander, Naval Sea Systems Command, for approval. SOURCE: 55 FR 33899, Aug. 20, 1990, unless otherwise noted. (b) Each request for entry will be considered on an individual basis, § 775.1 Purpose and scope. weighing the operational, security, and safety requirements of Portsmouth (a) To implement the provisions of Naval Shipyard, with the purpose, size the National Environmental Policy Act of party, duration of visit, destination, (NEPA), 42 U.S.C. 4321 et seq., the Coun- and military resources which would be cil on Environmental Quality Regula- required by the granting of the request. tions for Implementing the Procedural Provisions of NEPA, 40 CFR 1500–1508, [49 FR 34003, Aug. 28, 1984, as amended at 65 and the Department of Defense Instruc- FR 53593, Sept. 5, 2000] tion on Environmental Planning and Analysis, DODINST 4715.9, and to as- § 770.58 Violations. sign responsibilities within the Depart- (a) Any person entering or remaining ment of the Navy (DON) for prepara- on Portsmouth Naval Shipyard with- tion, review, and approval of environ- out the consent of the Commander, mental documents prepared under Portsmouth Naval Shipyard, or his au- NEPA. thorized representative, shall be sub- (b) The policies and responsibilities ject to the penalties prescribed in 18 set out in this part apply to the DON, U.S.C. 1382, which provides in pertinent including the Office of the Secretary of part: the Navy, and Navy and Marine Corps Whoever, within the jurisdiction of the commands, operating forces, shore es- United States, goes upon any military, naval tablishments, and reserve components. . . . reservation, post, fort, arsenal, yard, This part is limited to the actions of

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these elements with environmental ef- (f) Finding of No Significant Impact fects in the United States, its terri- (FONSI). A document that sets out the tories, and possessions. reasons why an action not otherwise [69 FR 8109, Feb. 23, 2004] categorically excluded will not have a significant impact on the human envi- § 775.2 Definitions. ronment, and for which an EIS will not (a) Action proponent. The commander, therefore be prepared. A FONSI will in- commanding officer, or civilian direc- clude the EA or a summary of it and tor of a unit, activity, or organization shall note any other environmental who initiates a proposal for action, as documents related to it. A FONSI may defined in 40 CFR 1508.23, and who has be one result of review of an EA. command and control authority over [69 FR 8109, Feb. 23, 2004] the action once it is authorized. For some actions, the action proponent will § 775.3 Policy. also serve as the decision-making authority for that action. In specific cir- (a) It is the DON policy regarding cumstances, the action proponent and NEPA, consistent with its mission and decision maker may be identified in regulations and the environmental Navy Regulations, other SECNAV In- laws and regulations of the United structions, operational instructions States, to: and orders, acquisition instructions, (1) Initiate the NEPA processes at and other sources which set out au- the earliest possible time to be an ef- thority and responsibility within the fective decision making tool in the DON. course of identifying a proposed action. (b) Environmental Impact Statement (2) Develop and carefully consider a (EIS). An environmental document pre- reasonable range of alternatives for pared according to the requirements of achieving the purpose(s) of proposed Council on Environmental Quality actions. (CEQ) regulations (40 CFR parts 1500– (3) Assign responsibility for prepara- 1508) for a major action that will have tion of action specific environmental a significant effect on the quality of analysis under NEPA to the action pro- the human environment. ponent. The action proponent should (c) Environmental Assessment (EA). A understand the plans, analyses, and en- concise document prepared according vironmental documents related to that to the requirements of 40 CFR parts action. 1500–1508 that briefly provides suffi- (b) NEPA is intended to ensure that cient evidence and analysis for deter- environmental issues are fully consid- mining whether to prepare an EIS. An ered and incorporated into the Federal EA aids compliance with NEPA when decision making process. Con- no EIS is necessary and facilitates sequently, actions for which the DON preparation of an EIS when one is nec- has no decision-making authority and essary. no discretion in implementing the ac- (d) Categorical Exclusion (CATEX). A tion, such as those carried out under a published category of actions that do non discretionary mandate from Con- not individually or cumulatively have gress (e.g., congressional direction to a significant impact on the human en- transfer Federal property to a par- vironment under normal cir- ticular entity for a particular purpose cumstances, and, therefore, do not re- that leaves DON no discretion in how quire either an environmental assess- the transfer will be implemented) or as ment or an environmental impact an operation of law (e.g., reversionary statement. interests in land recorded at the time (e) Record of Decision (ROD). An envi- the property was obtained and that ronmental document signed by an ap- provide no discretion in whether to propriate official of the DON. A ROD trigger the reversion or how the rever- sets out a concise summary of the final sion will be implemented), require no decision and selected measures for analysis or documentation under mitigation (if any) of adverse environ- NEPA or its implementing regulations. mental impacts of the alternative chosen from those considered in an EIS. [69 FR 8109, Feb. 23, 2004]

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§ 775.4 Responsibilities. (d) The Chief of Naval Operations (CNO) and the Commandant of the Ma- (a) The Assistant Secretary of the rine Corps (CMC) shall: Navy (Installations and Environment) (1) Implement effective environ- (ASN (I&E)) shall: mental planning throughout their re- (1) Act as principal liaison with the spective services. Office of the Secretary of Defense, the (2) Prepare and issue instructions or Council on Environmental Quality, the orders to implement environmental Environmental Protection Agency, planning policies of the DON. Forward other Federal agencies, Congress, state proposed CNO/CMC environmental governments, and the public with re- planning instructions or orders to ASN spect to significant NEPA matters. (I&E) and, when appropriate, ASN (2) Direct the preparation of appro- (RD&A) for review and comment prior priate environmental analysis and doc- to issuance. umentation and, with respect to those (3) Make decisions on environmental matters governed by SECNAV Instruc- assessments as to whether a Finding of tion 5000.2 series, advise the Assistant No Significant Impact is appropriate or Secretary of the Navy (Research Devel- preparation of an environmental im- opment and Acquisition) (ASN pact statement is required. (RD&A)) concerning environmental (4) Ensure that subordinate com- issues and the appropriate level of en- mands establish procedures for imple- vironmental analysis and NEPA documenting mitigation measures described mentation needed in any particular cir- in NEPA documents. cumstance. (5) Provide coordination as required (3) Except for proposed acquisition- for the preparation of NEPA docu- related actions addressed in paragraph ments for actions initiated by non- DON/DOD entities, state or local agen- (b)(2) of this section, review, sign, and cies and/or private individuals for approve for publication, as appropriate, which service involvement may be rea- documents prepared under NEPA. sonably foreseen. (4) Establish and publish a list of cat- (6) Bring environmental planning egorical exclusions for the DON. matters that involve controversial (b) The Assistant Secretary of the issues or which may affect environ- Navy (Research, Development and Ac- mental planning policies or their im- quisition (ASN (RD&A)) shall, in ac- plementation to the attention of ASN cordance with SECNAV Instruction (I&E) and, where appropriate, ASN 5000.2 series: (RD&A) for coordination and deter- (1) Ensure that DON acquisition pro- mination. grams, research programs, and procure- (7) Notify ASN (I&E), and when ap- ments comply with NEPA. propriate, ASN (RD&A) of any pro- (2) Review, sign, and approve for pub- posed EIS, and of any EA that may in- lication, as appropriate, environmental volve potentially sensitive public in- documents prepared under NEPA for terest issues. EIS notification shall proposed acquisition or research and occur prior to commencing NEPA doc- development related actions. ument preparation or receiving any (c) The General Counsel of the Navy public or regulatory agency involve- and the Judge Advocate General of the ment. EA notification shall be made as Navy shall: soon as it becomes apparent that po- (1) Ensure that legal advice for com- tentially sensitive public issues are in- pliance with environmental planning volved. requirements is available to all deci- [69 FR 8109, Feb. 23, 2004] sion-makers. (2) Advise the Secretary of the Navy, § 775.5 Classified actions. the Chief of Naval Operations, and the (a) The fact that a proposed action is Commandant of the Marine Corps as to of a classified nature does not relieve the legal requirements that must be the proponent of the action from com- met, and the conduct and disposition of plying with NEPA and the CEQ regula- all legal matters arising in the context tions. Therefore, environmental docu- of environmental planning. ments shall be prepared, safeguarded

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and disseminated in accordance with continuing activities’’. The term new the requirements applicable to classi- activities is intended to encompass fu- fied information. When feasible, these ture actions, i.e., those which are not documents shall be organized in such a ongoing at the time of the proposal. manner that classified portions are in- The term continuing activities which cluded as appendices so that unclassi- may necessitate the preparation of a fied portions can be made available to NEPA document will be applied by the the public. Review of classified NEPA Department of Navy to include activi- documentation will be coordinated ties which are presently being carried with the Environmental Protection out in fulfillment of the Navy mission Agency (EPA) to fulfill requirements of and function, including existing train- section 309 of the Clean Air Act (42 ing functions, where: U.S.C. 7609 et seq.). (1) The currently occurring environ- (b) It should be noted that a classi- mental effects of which have not been fied EA/EIS serves the same ‘‘informed previously evaluated in a NEPA docu- decisionmaking’’ purpose as does a pub- ment, and there is a discovery that lished unclassified EA/EIS. Even substantial environmental degradation though the classified EA/EIS does not is occurring, or is likely to occur, as a undergo general public review and result of ongoing operations (e.g., a dis- comment, it must still be part of the covery that significant beach erosion is information package to be considered occurring as a result of continuing am- by the decisionmaker for the proposed phibious exercises, new designation of action. The content of a classified EA/ wetland habitat, or discovery of an en- EIS (or the classified portion of a pub- dangered species residing in the area of lic EA/EIS) will therefore meet the the activity), or same content requirements applicable (2) There is a discovery that the envi- to a published unclassified EA/EIS. ronmental effects of an ongoing activity are significantly and qualitatively § 775.6 Planning considerations. different or more severe than predicted (a) An EIS must be prepared for pro- in a NEPA document prepared in con- posed major Federal actions that will nection with the commencement of the have significant impacts on the human activity. environment. The agency decision in A substantial change in a continuing the case of an EIS is reflected in a activity (such as a substantial change ROD. in operational tempo, area of use, or in (b) Where a proposed major Federal methodology/equipment) which has the action has the potential for signifi- potential for significant environmental cantly affecting the human environ- impacts should be considered a pro- ment, but it is not clear whether the posal for a new action and be docu- impacts of that particular action will mented accordingly. Preparation of a in fact be significant, or where the na- NEPA document is not a necessary pre- ture of an action precludes use of a cat- requisite, nor a substitute, for compli- egorical exclusion, an EA may be used ance with other environmental laws. to assist the agency in determining (d) Where emergency circumstances whether to prepare an EIS. If the agen- require immediate action, for the pro- cy determination in the case of an EA tection of lives and for public health is that there is no significant impact and safety, which could result in sig- on the environment, the findings will nificant harm to the environment, the be reflected in a FONSI. If the EA de- activity Commanding Officer or his termines that the proposed action is designee shall report the emergency likely to significantly affect the envi- action to CNO (OP–44E)/CMC (LFL) ronment (even after mitigation), then who will facilitate the appropriate con- an EIS will be prepared. An EA also sultation with CEQ as soon as prac- may be used where it otherwise will aid ticable. compliance with NEPA. (e) A categorical exclusion (CATEX), (c) CEQ regulations (40 CFR as defined and listed in this regulation, 1508.18(a)) define major federal actions may be used to exclude a proposed ac- subject to evaluation under NEPA to tion from further analysis. Even include, among other things, ‘‘new and though a proposed action generally is 502

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covered by a listed categorical exclu- sonnel, including physical plant protec- sion, a categorical exclusion will not tion and security; be used if the proposed action: (3) Routine use and operation of ex- (1) Would adversely affect public isting facilities, laboratories, and health or safety; equipment; (2) Involves effects on the human en- (4) Administrative studies, surveys, vironment that are highly uncertain, and data collection; involve unique or unknown risks, or (5) Issuance or modification of ad- which are scientifically controversial; ministrative procedures, regulations, (3) Establishes precedents or makes directives, manuals, or policy; decisions in principle for future actions (6) Military ceremonies; that have the potential for significant (7) Routine procurement of goods and impacts; services conducted in accordance with (4) Threatens a violation of Federal, applicable procurement regulations, state, or local environmental laws ap- executive orders, and policies; plicable to the Department of the (8) Routine repair and maintenance Navy; or of buildings, facilities, vessels, aircraft, (5) Involves an action that, as deter- and equipment associated with existing mined in coordination with the appro- operations and activities (e.g., local- priate resource agency, may: ized pest management activities, minor (i) Have an adverse effect on Feder- erosion control measures, painting, re- ally listed endangered/threatened spe- fitting); cies or marine mammals; (9) Training of an administrative or (ii) Have an adverse effect on coral classroom nature; reefs or on Federally designated wil- derness areas, wildlife refuges, marine (10) Routine personnel actions; sanctuaries, or parklands; (11) Routine movement of mobile as- (iii) Adversely affect the size, func- sets (such as ships and aircraft) for tion or biological value of wetlands and homeport reassignments, for repair/ is not covered by a nation-wide or re- overhaul, or to train/perform as oper- gional permit; ational groups where no new support (iv) Have an adverse effect on archae- facilities are required; ological resources or resources (includ- (12) Routine procurement, manage- ing but not limited to ships, aircraft, ment, storage, handling, installation, vessels and equipment) listed or deter- and disposal of commercial items, mined eligible for listing on the Na- where the items are used and handled tional Register of Historic Places; or in accordance with applicable regula- (v) Result in an uncontrolled or tions (e.g., consumables, electronic unpermitted release of hazardous sub- components, computer equipment, stances or require a conformity deter- pumps); mination under standards of the Clean (13) Routine recreational/welfare ac- Air Act General Conformity Rule. tivities; (f) Categorical exclusions. Subject to (14) Alteration of and additions to ex- the criteria in paragraph (e) above, the isting buildings, facilities, structures, following categories of actions are ex- vessels, aircraft, and equipment to concluded from further analysis under form or provide conforming use specifi- NEPA. The CNO and CMC shall deter- cally required by new or existing appli- mine whether a decision to forego prep- cable legislation or regulations (e.g., aration of an EA or EIS on the basis of hush houses for aircraft engines, scrub- one or more categorical exclusions bers for air emissions, improvements to must be documented in an administra- storm water and sanitary and indus- tive record and the format for such trial wastewater collection and treat- record. ment systems, and installation of fire (1) Routine fiscal and administrative fighting equipment); activities, including administration of (15) The modification of existing sys- contracts; tems or equipment when the environ- (2) Routine law and order activities mental effects will remain substan- performed by military personnel, mili- tially the same and the use is con- tary police, or other security per- sistent with applicable regulations;

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(16) Routine movement, handling and ments of facilities listed or eligible for distribution of materials, including listing on the National Register of His- hazardous materials/wastes that are toric Places which will result in no ad- moved, handled, or distributed in ac- verse effect; cordance with applicable regulations; (24) Hosting or participating in public (17) New activities conducted at es- events (e.g., air shows, open houses, tablished laboratories and plants (in- Earth Day events, and athletic events) cluding contractor-operated labora- where no permanent changes to exist- tories and plants) where all airborne ing infrastructure (e.g., road systems, emissions, waterborne effluent, exter- parking and sanitation systems) are renal ionizing and non-ionizing radiation quired to accommodate all aspects of levels, outdoor noise, and solid and the event; bulk waste disposal practices are in (25) Military training conducted on compliance with existing applicable or over nonmilitary land or water Federal, state, and local laws and regu- areas, where such training is con- lations; sistent with the type and tempo of ex- (18) Studies, data, and information isting non-military airspace, land, and gathering that involve no permanent water use (e.g., night compass training, physical change to the environment forced marches along trails, roads and (e.g., topographic surveys, wetlands highways, use of permanently estab- mapping, surveys for evaluating envi- lished ranges, use of public waterways, ronmental damage, and engineering ef- or use of civilian airfields); forts to support environmental anal- (26) Transfer of real property from yses); DON to another military department (19) Temporary placement and use of or to another Federal agency; simulated target fields (e.g., inert (27) Receipt of property from another mines, simulated mines, or passive hy- Federal agency when there is no antici- drophones) in fresh, estuarine, and ma- pated or proposed substantial change rine waters for the purpose of non-ex- in land use; plosive military training exercises or research, development, test and evalua- (28) Minor land acquisitions or dis- tion; posals where anticipated or proposed (20) Installation and operation of pas- land use is similar to existing land use sive scientific measurement devices and zoning, both in type and intensity; (e.g., antennae, tide gauges, weighted (29) Disposal of excess easement in- hydrophones, salinity measurement de- terests to the underlying fee owner; vices, and water quality measurement (30) Renewals and minor amendments devices) where use will not result in of existing real estate grants for use of changes in operations tempo and is Government-owned real property where consistent with applicable regulations; no significant change in land use is an- (21) Short-term increases in air oper- ticipated; ations up to 50 percent of the typical (31) Land withdrawal continuances or operation rate, or increases of 50 oper- extensions that merely establish time ations per day, whichever is greater. periods and where there is no signifi- Frequent use of this CATEX at an in- cant change in land use; stallation requires further analysis to (32) Renewals and/or initial real es- determine there are no cumulative im- tate in grants and out grants involving pacts; existing facilities and land wherein use (22) Decommissioning, disposal, or does not change significantly (e.g., transfer of Navy vessels, aircraft, vehi- leasing of federally-owned or privately- cles, and equipment when conducted in owned housing or office space, and ag- accordance with applicable regula- ricultural out leases); tions, including those regulations ap- (33) Grants of license, easement, or plying to removal of hazardous mate- similar arrangements for the use of ex- rials; isting rights-of-way or incidental ease- (23) Non-routine repair and renova- ments complementing the use of exist- tion, and donation or other transfer of ing rights-of-way for use by vehicles structures, vessels, aircraft, vehicles, (not to include significant increases in landscapes or other contributing ele- vehicle loading); electrical, telephone,

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and other transmission and commu- threatened species) into their historic nication lines; water, wastewater, habitat when no substantial site prepa- storm water, and irrigation pipelines, ration is involved; pumping stations, and facilities; and (43) Temporary closure of public ac- for similar utility and transportation cess to DON property in order to pro- uses; tect human or animal life; (34) New construction that is similar (44) Routine testing and evaluation of to existing land use and, when com- military equipment on a military res- pleted, the use or operation of which ervation or an established range, re- complies with existing regulatory restricted area, or operating area; simi- quirements (e.g., a building within a lar in type, intensity and setting, in- cantonment area with associated dis- cluding physical location and time of charges/runoff within existing handling year, to other actions for which it has capacities); been determined, through NEPA anal- (35) Demolition, disposal, or improve- ysis where the DON was a lead or co- ments involving buildings or structures operating agency, that there are no when done in accordance with applica- significant impacts; and conducted in ble regulations including those regula- accordance with all applicable stand- tions applying to removal of asbestos, ard operating procedures protective of PCBs, and other hazardous materials; the environment; (36) Acquisition, installation, and op- (45) Routine military training associ- eration of utility (e.g., water, sewer, ated with transits, maneuvering, safety electrical) and communication systems and engineering drills, replenishments, (e.g., data processing cable and similar flight operations, and weapons systems electronic equipment) which use exist- conducted at the unit or minor exercise ing rights of way, easements, distribu- level; similar in type, intensity and tion systems, and/or facilities; setting, including physical location (37) Decisions to close facilities, de- and time of year, to other actions for commission equipment, and/or tempo- which it has been determined, through rarily discontinue use of facilities or NEPA analysis where the DON was a equipment, where the facility or equip- lead or cooperating agency, that there ment is not used to prevent/control en- are no significant impacts; and con- vironmental impacts); ducted in accordance with all applica- (38) Maintenance dredging and debris ble standard operating procedures pro- disposal where no new depths are re- tective of the environment. quired, applicable permits are secured, and disposal will be at an approved dis- [55 FR 33899, Aug. 20, 1990, as amended at 55 posal site; FR 39960, Oct. 1, 1990; 69 FR 8110, Feb. 23, (39) Relocation of personnel into ex- 2004] isting Federally-owned or commercially leased space that does not in- § 775.7 Time limits for environmental documents. volve a substantial change affecting the supporting infrastructure (e.g., no (a) The timing of the preparation, increase in vehicular traffic beyond the circulation, submission and public capacity of the supporting road net- availability of environmental docu- work to accommodate such an in- ments is important in achieving the crease); purposes of NEPA. Therefore, the (40) Pre-lease upland exploration ac- NEPA process shall begin as early as tivities for oil, gas or geothermal re- possible in the decisionmaking process. serves, (e.g., geophysical surveys); (b) The EPA publishes a weekly no- (41) Installation of devices to protect tice in the FEDERAL REGISTER of envi- human or animal life (e.g., raptor elec- ronmental impact statements filed trocution prevention devices, fencing during the preceding week. The min- to restrict wildlife movement onto air- imum time periods set forth below fields, and fencing and grating to pre- shall be calculated from the date of vent accidental entry to hazardous publication of notices in the FEDERAL areas); REGISTER. No decision on the proposed (42) Reintroduction of endemic or na- action may take place until the later tive species (other than endangered or of the following dates:

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(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 cation of notice of filing shall be al- ripe for decision and exclude from con- lowed for public comment on draft sideration issues already decided or not statements prior to filing of the FEIS yet ripe. (40 CFR 1508.28(b).) The se- (40 CFR 1506.10(c)). quence of statements or analyses is: § 775.8 Scoping. (i) From a broad program, plan, or policy environmental impact state- As soon as practicable after the deci- ment (not necessarily site specific) to a sion to prepare an EIS is made, an subordinate/smaller scope program, early and open process called scoping ‘‘ ’’ plan, or policy statement or analysis shall be used to determine the scope of (usually site specific) (40 CFR 1508.28 issues to be addressed and to identify (a)). the significant issues to be analyzed in depth related to the proposed action (40 (ii) From an environmental impact CFR 1501.7). This process also serves to statement on a specific action at an deemphasize insignificant issues, nar- early stage (such as need and site selec- rowing the scope of the EIS process action) to a supplement (which is pre- cordingly (40 CFR 1500.4(g)). Scoping ferred) or a subsequent statement or results in the identification by the pro- analysis at a later stage (such as envi- ponent of the range of actions, alter- ronmental mitigation) (40 CFR natives, and impacts to be considered 1508.28(b)). in the EIS (40 CFR 1508.25). For any ac- (iii) In addition to the discussion re- tion, this scope may depend on the required by these regulations for inclu- lationship of the proposed action to sion in environmental impact state- other existing environmental documents, the programmatic environ- mentation. mental impact statement shall also discuss: § 775.9 Documentation and analysis. (A) A description of the subsequent (a) Environmental documentation stages or sites that may ultimately be and analyses required by this rule proposed in as much detail as presently should be integrated as much as prac- possible; ticable with any environmental stud- (B) All of the implementing factors ies, surveys and impact analyses re- of the program that can be ascertained quired by other environmental review at the time of impact statement prepa- laws and executive orders (40 CFR ration; 1502.25). When a cost-benefit analysis (C) All of the environmental impacts has been prepared in conjunction with that will result from establishment of an action which also requires a NEPA the overall program itself that will be analysis, the cost-benefit analysis shall similar for subsequent stages or sites be integrated into the environmental as further implementation plans are documentation. proposed; and (b) CEQ regulations encourage the (D) All of the appropriate mitigation use of tiering whenever appropriate to measures that will be similarly pro- eliminate repetitive discussions of the posed for subsequent stages or sites.

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(iv) The analytical document used for (a) The magnitude of the environ- stage or site specific analysis subse- mental considerations associated with quent to the programmatic environ- the proposed action; mental impact statement shall also be (b) The extent of anticipated public an environmental impact statement interest; and when the subsequent tier itself may (c) Any relevant questions of na- have a significant impact on the qual- tional security and classification. ity of the human environment or when an impact statement is otherwise re- § 775.12 Delegation of authority. quired. Otherwise, it is appropriate to (a) The ASN (I&E) may delegate his/ document the tiered analysis with an her responsibilities under this instruc- environmental assessment to fully as- tion for review, approval and/or signa- sess the need for further documenta- ture of EISs and RODs to appropriate tion or whether a FONSI would be ap- Executive Schedule/Senior Executive propriate. Service civilians or flag/general offi- (2) [Reserved] cers. ASN (I&E), CNO, and CMC may delegate all other responsibilities as- § 775.10 Relations with state, local and signed in this instruction as deemed regional agencies. appropriate. Close and harmonious planning rela- (b) The ASN (RD&A) delegation of tions with local and regional agencies authority for approval and signature of and planning commissions of adjacent documents under NEPA is contained in cities, counties, and states, for co- SECNAV Instruction 5000.2 series, operation and resolution of mutual which sets out policies and procedures land use and environment-related prob- for acquisition programs. lems should be established. Additional (c) Previously authorized delegations coordination may be obtained from of authority are continued until re- state and area-wide planning and devel- vised or withdrawn. opment ‘‘clearinghouses’’. These are [69 FR 8112, Feb. 23, 2004] agencies which have been established pursuant to Executive Order 12372 of PART 776—PROFESSIONAL CON- July 14, 1982 (3 CFR, 1982 Comp., p. 197). The clearinghouses serve a review and DUCT OF ATTORNEYS PRAC- coordination function for Federal ac- TICING UNDER THE COG- tivities and the proponent may gain in- NIZANCE AND SUPERVISION OF sights on other agencies’ approaches to THE JUDGE ADVOCATE GEN- environmental assessments, surveys, ERAL and studies in relation to any current proposal. The clearinghouses would Subpart A—General also be able to assist in identifying pos- Sec. sible participants in scoping proce- 776.1 Purpose. dures for projects requiring an EIS. 776.2 Applicability. 776.3 Policy. § 775.11 Public participation. 776.4 Attorney-client relationships. The importance of public participa- 776.5 Judicial conduct. tion (40 CFR 1501.4(b)) in preparing en- 776.6 Conflict. 776.7 Reporting requirements. vironmental assessments is clearly rec- 776.8 Professional Responsibility Com- ognized and it is recommended that mittee. commands proposing an action develop 776.9 Rules Counsel. a plan to ensure appropriate commu- 776.10 Informal ethics advice. nication with affected and interested 776.11 Outside part-time practice of law. parties. The command Public Affairs 776.12 Maintenance of files. Office can provide assistance with de- 776.13–776.17 [Reserved] veloping and implementing this plan. In determining the extent to which Subpart B—Rules of Professional Conduct public participation is practicable, the 776.18 Preamble. following are among the factors to be 776.19 Principles. weighed by the command: 776.20 Competence.

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776.21 Establishment and scope of represen- Subpart C—Complaint Processing tation. Procedures 776.22 Diligence. 776.23 Communication. 776.76 Policy. 776.24 Fees. 776.77 Related investigations and actions. 776.25 Confidentiality of information. 776.78 Informal complaints. 776.79 The complaint. 776.26 Conflict of interest: General rule. 776.80 Initial screening and Rules Counsel. 776.27 Conflict of interests: Prohibited 776.81 Charges. transactions. 776.82 Interim suspension. 776.28 Conflict of interest: Former client. 776.83 Preliminary inquiry. 776.29 Imputed disqualification: General 776.84 Ethics investigation. rule. 776.85 Effect of separate proceeding. 776.30 Successive Government and private 776.86 Action by JAG. employment. 776.87 Finality. 776.31 Former judge or arbitrator. 776.88 Report to licensing authorities. 776.32 Department of Navy as client. 776.33 Client under a disability. Subpart D [Reserved] 776.34 Safekeeping property. 776.35 Declining or terminating representa- AUTHORITY: 10 U.S.C. 806, 806a, 826, 827; tion. Manual for Courts-Martial, United States, 776.36 Prohibited sexual relations. 1998; U.S. Navy Regulations, 1990; Secretary 776.37 Advisor. of the Navy Instruction 5430.27 (series), Re- 776.38 Mediation. sponsibility of the Judge Advocate General 776.39 Evaluation for use by third persons. for Supervision of Certain Legal Services. 776.40 Meritorious claims and contentions. SOURCE: 65 FR 15060, Mar. 21, 2000, unless 776.41 Expediting litigation. otherwise noted. 776.42 Candor and obligations toward the tribunal. 776.43 Fairness to opposing party and coun- Subpart A—General sel. § 776.1 Purpose. 776.44 Impartiality and decorum of the tribunal. In furtherance of the authority cita- 776.45 Extra-tribunal statements. tions (which, if not found in local li- 776.46 Attorney as witness. braries, are available from the Office of 776.47 Special responsibilities of a trial the Judge Advocate General, 1322 Pat- counsel. terson Avenue, SE., Suite 3000, Wash- 776.48 Advocate in nonadjudicative pro- ington Navy Yard DC 20374–5066), which ceedings. require the Judge Advocate General of 776.49 Truthfulness in statements to others. the Navy (JAG) to supervise the per- 776.50 Communication with person rep- formance of legal services under JAG resented by counsel. 776.51 Dealing with an unrepresented per- cognizance throughout the Department son. of the Navy (DON), this part is promul- 776.52 Respect for rights of third persons. gated: 776.53 Responsibilities of the Judge Advo- (a) To establish Rules of Professional cate General and supervisory attorneys. Conduct (subpart B of this part) for at- 776.54 Responsibilities of a subordinate attorneys subject to this part; torney. (b) To establish procedures (subpart 776.55 Responsibilities regarding non-attor- C of this part) for receiving, processing, ney assistants. and taking action on complaints of 776.56 Professional independence of a cov- professional misconduct made against ered USG attorney. attorneys practicing under the super- 776.57 Unauthorized practice of law. vision of JAG, whether arising from 776.58–776.65 [Reserved] professional legal activities in DON 776.66 Bar admission and disciplinary matters. proceedings and matters, or arising 776.67 Judicial and legal officers. from other, non-U.S. Government re- 776.68 Reporting professional misconduct. lated professional legal activities or 776.69 Misconduct. personal misconduct which suggests 776.70 Jurisdiction. the attorney is ethically, profes- 776.71 Requirement to remain in good sionally, or morally unqualified to per- standing with licensing authorities. form legal services within the DON; 776.72–776.75 [Reserved] and

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(c) To ensure quality legal services at (3) The term ‘‘covered attorney’’ does all proceedings under the cognizance not include those civil service or civil- and supervision of the JAG. ian attorneys who practice law or perform legal services under the cog- § 776.2 Applicability. nizance and supervision of the General (a) This part defines the professional Counsel of the Navy. ethical obligations of, and applies to, (c) Professional or personal mis- all ‘‘covered attorneys.’’ conduct unrelated to a covered attor- (b) ‘‘Covered attorneys’’ include: ney’s DON activities, while normally (1) The following U.S. Government outside the ambit of these rules, may (USG) attorneys, referred to, collec- be reviewed under procedures estab- tively, as ‘‘covered USG attorneys’’ lished in subpart C of this part and throughout this part: may provide the basis for decisions by (i) All active-duty Navy judge advo- the JAG regarding the covered attor- cates (designator 2500 or 2505) or Ma- ney’s continued qualification to pro- rine Corps judge advocates (MOS 4402 vide legal services in DON matters. or 9914). (d) Although the Rules in subpart B (ii) All active-duty judge advocates of this part do not apply to non-attor- of other U.S. armed forces who practice neys, they do define the type of ethical law or provide legal services under the conduct that the public and the mili- cognizance and supervision of the JAG. tary community have a right to expect (iii) All civil service and contracted from DON legal personnel. Covered civilian attorneys who practice law or USG attorneys who supervise non-at- perform legal services under the cog- torney DON employees are responsible nizance and supervision of the JAG. for their ethical conduct to the extent (iv) All Reserve or Retired judge ad- provided for in § 776.55 of this part. Ac- vocates of the Navy or Marine Corps cordingly, subpart B of this part shall (and any other U.S. armed force), who, serve as a model of ethical conduct for while performing official DON duties, the following personnel when involved practice law or provide legal services with the delivery of legal services under the cognizance and supervision under the supervision of the JAG: of the JAG. (1) Navy legalmen and Marine Corps (v) All other attorneys appointed by legal administrative officers, legal JAG (or the Director, Judge Advocate service specialists, and legal services (JA) Division, Headquarters Marine reporters (stenotype); Corps (HQMC), in Marine Corps mat- (2) Limited duty officers (LAW); ters) to serve in billets or to provide (3) Legal interns; and legal services normally provided by (4) Civilian support personnel includ- Navy or Marine Corps judge advocates. ing paralegals, legal secretaries, legal This policy applies to officer and en- technicians, secretaries, court report- listed reservists, to active-duty per- ers, and others holding similar posi- sonnel, and to any other personnel who tions. are licensed to practice law by any Federal or state authorities, but who § 776.3 Policy. are not members of the Judge Advocate (a) Covered attorneys shall maintain General’s Corps or who do not hold the the highest standards of professional 4402 or 9914 designation in the Marine ethical conduct. Loyalty and fidelity Corps. to the United States, to the law, to cli- (2) The following non-U.S. Govern- ents both institutional and individual, ment attorneys, referred to, collec- and to the rules and principles of pro- tively, as ‘‘covered non-USG attorneys’’ fessional ethical conduct set forth in throughout this part: All civilian at- subpart B of this part must come be- torneys representing individuals in any fore private gain or personal interest. matter for which JAG is charged with (b) Whether conduct or failure to act supervising the provision of legal serv- constitutes a violation of the profes- ices. These matters include, but are sional duties imposed by this part is a not limited to, courts-martial, admin- matter within the sole discretion of istrative separation boards or hearings, JAG or officials authorized to act for and disability evaluation proceedings. JAG. Rules contained in subpart B of

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this part are not substitutes for, and do § 776.5 Judicial conduct. not take the place of, other rules and To the extent that it does not con- standards governing DON personnel flict with statutes, regulations, or this such as the Department of Defense part, the American Bar Association’s Joint Ethics Regulation, the Code of Code of Judicial Conduct applies to all Conduct, the Uniform Code of Military military and appellate judges and to Justice (UCMJ), and the general pre- all other covered USG attorneys per- cepts of ethical conduct to which all forming judicial functions under JAG DON service members and employees supervision within the DON. are expected to adhere. Similarly, action taken per this part is not sup- § 776.6 Conflict. planted or barred by, and does not, To the extent that a conflict exists even if the underlying misconduct is between this part and the rules of the same, supplant or bar the following other jurisdictions that regulate the action from being taken by authorized professional conduct of attorneys, this officials: part will govern the conduct of covered (1) Punitive or disciplinary action attorneys engaged in legal functions under the UCMJ; or under JAG cognizance and supervision. (2) Administrative action under the Specific and significant instances of Manual for Courts-Martial, U.S. Navy conflict between the rules contained in Regulations, or under other applicable subpart B of this part and the rules of authority. other jurisdictions shall be reported (c) Inquiries into allegations of pro- promptly to the Rules Counsel (see fessional misconduct will normally be § 776.9 of this part), via the supervisory held in abeyance until any related attorney. See § 776.53 of this part. criminal investigation or proceeding is complete. However, a pending criminal § 776.7 Reporting requirements. investigation or proceeding does not Covered USG attorneys shall report bar the initiation or completion of a promptly to the Rules Counsel any dis- professional misconduct investigation ciplinary or administrative action, in- (subpart C of this part) stemming from cluding initiation of investigation, by the same or related incidents or pre- any licensing authority or Federal, vent the JAG from imposing profes- State, or local bar, possessing the sional disciplinary sanctions as pro- power to revoke, suspend, or in any vided for in this part. way limit the authority to practice law in that jurisdiction, upon himself, her- § 776.4 Attorney-client relationships. self, or another covered attorney. Fail- (a) The executive agency to which as- ure to report such discipline or admin- signed (DON in most cases) is the cli- istrative action may subject the cov- ent served by each covered USG attor- ered USG attorney to discipline admin- ney unless detailed to represent an- istered per this part. See § 776.71 of this other client by competent authority. part. Specific guidelines are contained in § 776.32 of this part. § 776.8 Professional Responsibility (b) Covered USG attorneys will not Committee. establish attorney-client relationships (a) Composition. This standing com- with any individual unless detailed, as- mittee will consist of the Assistant signed, or otherwise authorized to do Judge Advocate General (AJAG) for so by competent authority. Wrongfully Military Justice; the Vice Commander, establishing an attorney-client rela- Naval Legal Service Command (NLSC); tionship may subject the attorney to the Chief Judge, Navy-Marine Corps discipline administered per this part. Trial Judiciary; and in cases involving See § 776.21 of this part. Marine Corps judge advocates, the Dep- (c) Employment of a non-USG attor- uty Director, JA Division, HQMC; and ney by an individual client does not such other personnel as JAG from alter the professional responsibilities time-to-time may appoint. A majority of a covered USG attorney detailed or of the members constitutes a quorum. otherwise assigned by competent au- The Chairman of the Committee shall thority to represent that client. be the AJAG for Military Justice. The

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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- (a) Advisors. Covered attorneys may mittee will provide formal advisory seek informal ethics advice either from opinions to JAG regarding application the officers named below or from su- of rules contained in subpart B of this pervisory attorneys in the field. Within part to individual or hypothetical the Office of the JAG and HQMC, the cases. following officials are designated to re- (2) On its own motion, the Committee spond, either orally or in writing, to may also issue formal advisory opin- informal inquiries concerning this part ions on ethical issues of importance to in the areas of practice indicated: the DON legal community. (1) Head, Military Affairs/Personnel (3) Upon written request, the Com- Law Branch, Administrative Law Divi- mittee will also provide formal advi- sion: administrative boards and related sory opinions to covered attorneys matters; about the propriety of proposed courses (2) Deputy Director, Criminal Law of action. If such requests are predi- Division: military justice matters; cated upon full disclosure of all rel- (3) Director, Legal Assistance Divi- evant facts, and if the Committee ad- sion: legal assistance matters; vises that the proposed course of con- (4) Deputy Director, JA Division, duct is not violative of subpart B of HQMC: cases involving Marine Corps this part, then no adverse action under judge advocates, or civil service and this part may be taken against a cov- contracted civilian attorneys who per- ered attorney who acts consistent with form legal services under the cog- the Committee’s advice. nizance and supervision of Director, JA (4) The Chairman will forward copies Division, HQMC; and of all opinions issued by the Committee (5) Head, Standards of Conduct/Gov- to the Rules Counsel. ernment Ethics Branch, Administra- (c) Limitation. The Committee will tive Law Division: all other matters. not normally provide ethics advice or (b) Limitation. Informal ethics advice opinions concerning professional re- will not normally be provided by JAG/ sponsibility matters (e.g., ineffective HQMC advisors concerning professional assistance of counsel, prosecutorial responsibility matters (e.g., ineffective misconduct, etc.) that are then the assistance of counsel, prosecutorial subject of litigation. misconduct) that are then the subject of litigation. § 776.9 Rules Counsel. (c) Written advice. A request for infor- Appointed by JAG to act as special mal advice does not relieve the re- assistants for the administration of quester of the obligation to comply this part, the Rules Counsel derive au- with subpart B of this part. Although thority from JAG and, as detailed in covered attorneys are encouraged to this part, have ‘‘by direction’’ author- seek advice when in doubt as to their ity. The Rules Counsel shall cause responsibilities, they remain person- opinions issued by the Professional Re- ally accountable for their professional sponsibility Committee of general in- conduct. If, however, an attorney re- terest to the DON legal community to ceives written advice on an ethical be published in summarized, non-per- matter after full disclosure of all rel- sonal form in suitable publications. evant facts and reasonably relies on Unless another officer is appointed by such advice, no adverse action under JAG to act in individual cases, the fol- this part will be taken against the at- lowing officers shall act as Rules Coun- torney. Written advice may be sought sel: from either a supervisory attorney or (a) Director, JA Division, HQMC, for the appropriate advisor in paragraph cases involving Marine Corps judge ad- (a) of this section. JAG is not bound by

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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 to obtain permission before engaging in Code of Military Justice, the Manual the outside practice of law may subject for Courts-Martial, 10 U.S.C. 1044 the covered USG attorney to adminis- (Legal Assistance), other laws of the trative or disciplinary action, includ- United States, and regulations of the ing professional sanctions adminis- DON. tered per subpart C of this part. Cov- (b) This subpart not only addresses ered USG attorneys may obtain further the professional conduct of judge advo- details in JAGINST 5803.1 (series). This cates, but also applies to all other cov- requirement does not apply to non- ered attorneys who practice under the USG attorneys, or to Reserve or Re- cognizance and supervision of the JAG. tired judge advocates unless serving on See § 776.2 of this part. active-duty for more than 30 consecu- (c) All covered attorneys are subject tive days. to professional disciplinary action imposed by the JAG for violation of the § 776.12 Maintenance of files. Rules contained in this subpart. Action Ethics complaint records shall be by the JAG does not prevent other Fed- maintained by the Administrative Law eral, State, or local bar associations or Division, Office of the Judge Advocate other licensing authorities from taking General, and, in the case of Marine professional disciplinary or other ad- records, by the Judge Advocate Re- ministrative action for the same or search and Civil Law Branch, JA Divi- similar acts. sion, HQMC. (a) Requests for access to such § 776.19 Principles. records should be referred to Deputy The Rules of this subpart are based Assistant Judge Advocate General (Ad- on the following principles. Interpreta- ministrative Law), Office of the Judge tion of this subpart should flow from Advocate General (Code 13), 1322 Pat- common meaning. To the extent that terson Avenue, SE., Suite 3000, Wash- any ambiguity or conflict exists, this ington Navy Yard DC 20374–5066, or to subpart should be interpreted con- Head, Judge Advocate Research and sistent with these general principles. Civil Law Branch, JA Division, Head- (a) Covered attorneys shall: quarters Marine Corps, Washington (1) Obey the law and military regula- Navy Yard DC 20380–0001, as appro- tions, and counsel clients to do so. priate. (2) Follow all applicable ethics rules. (b) Local command files regarding (3) Protect the legal rights and inter- professional responsibility complaints ests of clients, organizational and indi- will not be maintained. Commanding vidual.

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(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, access to evi- may counsel or assist a client in mak- dence, thoroughness, and expeditious ing a good faith effort to determine the preparation reasonably necessary for validity, scope, meaning, or applica- representation. Initial determinations tion of the law. as to competence of a covered USG at- (b) [Reserved] torney for a particular assignment shall be made by a supervising attor- § 776.22 Diligence. ney before case or issue assignments; (a) Diligence. A covered attorney however, assigned attorneys may con- shall act with reasonable diligence and sult with supervisors concerning com- promptness in representing a client, petence in a particular case. and shall consult with a client as soon (b) [Reserved] as practicable and as often as nec- [67 FR 70165, Nov. 21, 2002] essary upon being assigned to the case or issue. § 776.21 Establishment and scope of (b) [Reserved] representation. (a) Establishment and scope of represen- § 776.23 Communication. tation: (1) Formation of attorney-client (a) Communication: relationships by covered USG attor- (1) A covered attorney shall keep a neys with, and representation of, cli- client reasonably informed about the ents is permissible only when the at- status of a matter and promptly com- torney is authorized to do so by comply with reasonable requests for infor- petent authority. Military Rule of Evi- mation. dence 502, the Manual of the Judge Ad- (2) A covered attorney shall explain a vocate General (JAG Instruction 5800.7 matter to the extent reasonably nec- (series)), and the Naval Legal Service essary to permit the client to make in- Office and Trial Service Office Manual, formed decisions regarding the rep- define when an attorney-client rela- resentation. tionship is formed between a covered (b) [Reserved] USG attorney and a client servicemember, dependent, or em- § 776.24 Fees. ployee. (a) Fees: (2) Generally, the subject matter (1) A covered USG attorney shall not scope of a covered attorney’s represen- accept any salary, fee, compensation, tation will be consistent with the or other payments or benefits, directly terms of the assignment to perform or indirectly, other than Government specific representational or advisory compensation, for services provided in duties. A covered attorney shall inform the course of the covered USG attor- clients at the earliest opportunity of ney’s official duties or employment.

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(2) A covered USG attorney shall not (6) A fee may be contingent on the accept any salary or other payments as outcome of the matter for which the compensation for legal services ren- service is rendered, except in a matter dered, by that covered USG attorney in in which a contingent fee is prohibited a private capacity, to a client who is by paragraph (a)(7) of this section or eligible for assistance under the DON other law. A contingent fee agreement Legal Assistance Program, unless so shall be in writing and shall state the authorized by the JAG. This rule does method by which the fee is to be deter- not apply to Reserve or Retired judge mined, including the percentage or per- advocates not then serving on extended centages that shall accrue to the cov- active-duty. ered non-USG attorney in the event of (3) A Reserve or Retired judge advo- settlement, trial or appeal, litigation cate, whether or not serving on ex- and other expenses to be deducted from tended active-duty, who has initially the recovery, and whether such ex- represented or interviewed a client or penses are to be deducted before or prospective client concerning a matter after the contingent fee is calculated. as part of the attorney’s official Navy Upon conclusion of a contingent fee or Marine Corps duties, shall not ac- matter, the covered non-USG attorney cept any salary or other payments as shall provide the client with a written compensation for services rendered to statement stating the outcome of the that client in a private capacity con- matter and, if there is a recovery, cerning the same general matter for showing the remittance to the client which the client was seen in an official and the method of its determination. capacity, unless so authorized by the (7) A covered non-USG attorney shall JAG. not enter into an arrangement for, (4) Covered non-USG attorneys may charge, or collect a contingent fee for charge fees. Fees shall be reasonable. representing an accused in a criminal Factors considered in determining the case. reasonableness of a fee include the fol- (8) A division of fees between covered lowing: non-USG attorneys who are not in the (i) The time and labor required, the same firm may be made only if: novelty and difficulty of the questions (i) The division is in proportion to involved, and the skill requisite to per- the services performed by each attor- form the legal service properly; ney or, by written agreement with the (ii) The likelihood, if apparent to the client, each attorney assumes joint re- client, that the acceptance of the par- sponsibility for the representation; ticular employment will preclude other (ii) The client is advised of and does employment by the attorney; not object to the participation of all (iii) The fee customarily charged in the attorneys involved; and the locality for similar legal services; (iii) The total fee is reasonable. (iv) The amount involved and the re- (b) Paragraphs (a)(4) through (a)(8) of sults obtained; this section apply only to private civil- (v) The time limitations imposed by ian attorneys practicing in proceedings the client or by the circumstances; conducted under the cognizance and su- (vi) The nature and length of the pro- pervision of the JAG. The primary pur- fessional relationship with the client; poses of paragraphs (a)(4) through (a)(8) (vii) The experience, reputation, and of this section are not to permit the ability of the attorney or attorneys JAG to regulate fee arrangements be- performing the services; and tween civilian attorneys and their cli- (viii) Whether the fee is fixed or con- ents but to provide guidance to covered tingent. USG attorneys practicing with non- (5) When the covered non-USG attor- USG attorneys and to supervisory at- ney has not regularly represented the torneys who may be asked to inquire client, the basis or rate of the fee shall into alleged fee irregularities. Absent be communicated to the client, pref- paragraphs (a)(4) through (a)(8) of this erably in writing, before or within a section, such supervisory attorneys reasonable time after commencing the have no readily available standard representation. against which to compare allegedly

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questionable conduct of a civilian at- duct are: absence without authority torney. from a peacetime training exercise; intentional damage to an individually as- § 776.25 Confidentiality of information. signed weapon; and intentional minor (a) Confidentiality of Information: damage to military property. (1) A covered attorney shall not reveal information relating to represen- § 776.26 Conflict of interest: General tation of a client unless the client con- rule. sents after consultation, except for dis- (a) Conflict of interest: General rule: closures that are impliedly authorized (1) A covered attorney shall not rep- in order to carry out the representa- resent a client if the representation of tion, and except as stated in para- that client will be directly adverse to graphs (a)(2) and (a)(3) of this section. another client, unless: (2) A covered attorney shall reveal (i) The covered attorney reasonably such information to the extent the cov- believes the representation will not ad- ered attorney reasonably believes nec- versely affect the relationship with the essary to prevent the client from com- other client; and mitting a criminal act that the covered (ii) Each client consents after con- attorney believes is likely to result in sultation. imminent death or substantial bodily harm, or significant impairment of na- (2) A covered attorney shall not rep- tional security or the readiness or ca- resent a client if the representation of pability of a military unit, vessel, air- that client may be materially limited craft, or weapon system. by the covered attorney’s responsibil- (3) A covered attorney may reveal ities to another client or to a third per- such information to the extent the cov- son, or by the covered attorney’s own ered attorney reasonably believes nec- interests, unless: essary to establish a claim or defense (i) The covered attorney reasonably on behalf of the covered attorney in a believes the representation will not be controversy between the covered attor- adversely affected; and ney and the client, to establish a de- (ii) The client consents after con- fense to a criminal charge or civil sultation. claim against the attorney based upon (3) When representation of multiple conduct in which the client was in- clients in a single matter is under- volved, or to respond to allegations in taken, the consultation shall include any proceeding concerning the attor- explanation of the implications of the ney’s representation of the client. common representation and the advan- (b) Conduct likely to result in the tages and risks involved. significant impairment of national se- (b) Reserve judge advocates. These con- curity or the readiness or capability of flict of interest rules only apply when a military unit, vessel, aircraft, or Reservists are actually drilling or on weapon system include, but are not active-duty for training, or, as is the limited to: Divulging the classified lo- case with Retirees, on extended active- cation of a special operations unit such duty or when performing other duties that the lives of members of the unit subject to JAG supervision. Therefore, are placed in immediate danger; sabo- unless otherwise prohibited by crimi- taging a vessel or aircraft to the extent nal conflict of interest statutes, Re- that the vessel or aircraft could not serve or Retired attorneys providing conduct an assigned mission, or that legal services in their civilian capacity the vessel or aircraft and crew could be may represent clients, or work in firms lost; and compromising the security of whose attorneys represent clients, with a weapons site such that the weapons interests adverse to the United States. are likely to be stolen or detonated. Reserve judge advocates who, in their Paragraph (a)(2) of this section is not civilian capacities, represent persons intended to and does not mandate the whose interests are adverse to the DON disclosure of conduct which may have a will provide written notification to slight impact on the readiness or capa- their supervisory attorney and com- bility of a unit, vessel, aircraft, or manding officer, detailing their in- weapon system. Examples of such con- volvement in the matter. Reserve judge

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advocates shall refrain from under- portrayal or account based in substan- taking any official action or represen- tial part on information relating to tation of the DON with respect to any representation of a client; particular matter in which they are (vi) Represent a client in a matter di- providing representation or services to rectly adverse to a person whom the other clients. covered attorney knows is represented by another attorney who is related as § 776.27 Conflict of interests: Prohib- parent, child, sibling, or spouse to the ited transactions. covered attorney, except upon consent (a) Conflict of interests: Prohibited by the client after consultation regard- transactions. ing the relationship; or (1) Covered USG attorneys shall (vii) Acquire a proprietary interest in strictly adhere to current Department the cause of action or subject matter of of Defense Ethics Regulations and shall litigation the covered attorney is con- not: ducting for a client. (i) Knowingly enter into any business (b) [Reserved] transactions on behalf of, or adverse to, a client’s interest which directly or § 776.28 Conflict of interest: Former indirectly relate to or result from the client. attorney-client relationship; or (a) Conflict of interest: Former client. A (ii) Provide any financial assistance covered attorney who has represented a to a client or otherwise serve in a fi- client in a matter shall not thereafter: nancial or proprietorial fiduciary or (1) Represent another person in the bailment relationship, unless otherwise same or a substantially related matter specifically authorized by competent in which the person’s interests are ma- authority. terially adverse to the interests of the (2) No covered attorney shall: former client, unless the former client (i) Use information relating to rep- consents after consultation; resentation of a client to the disadvan- (2) Use information relating to the tage of the client unless the client con- representation to the disadvantage of sents after consultation, except as per- the former client or to the covered at- mitted or required by § 776.25 or § 776.42 torney’s own advantage, except as of this part; § 776.25 or § 776.42 of this part would per- (ii) Prepare an instrument giving the mit or require with respect to a client covered attorney or a person related to or when the information has become the covered attorney as parent, child, generally known; or sibling, or spouse any gift from a cli- (3) Reveal information relating to the ent, including a testamentary gift, ex- representation except as § 776.25 or cept where the client is related to the § 776.42 of this part would permit or re- donee; quire with respect to a client. (iii) In the case of covered non-USG (b) [Reserved] attorneys, accept compensation for representing a client from one other § 776.29 Imputed disqualification: Gen- than the client unless the client con- eral rule. sents after consultation, there is no in- (a) Imputed disqualification: General terference with the covered attorney’s rule. Covered USG attorneys working independence of professional judgment in the same military law office are not or with the attorney-client relation- automatically disqualified from rep- ship, and information relating to representing a client because any of them resentation of a client is protected as practicing alone would be prohibited required by § 776.25 of this part; from doing so by § 776.26, § 776.27, (iv) Negotiate any settlement on be- § 776.28, or § 776.38 of this part. Covered half of multiple clients in a single mat- non-USG attorneys must consult their ter unless each client provides fully in- federal, state, and local bar rules gov- formed consent; erning the representation of multiple (v) Prior to the conclusion of rep- or adverse clients within the same of- resentation of the client, make or ne- fice before such representation is initi- gotiate an agreement giving a covered ated, as such representation may ex- attorney literary or media rights for a pose them to disciplinary action under

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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 from the same office. For example, the about a client formerly represented. fact that a number of defense attorneys See § 776.25 and § 776.28.7 of this part. operate from one office and normally (4) Maintaining independent judg- share clerical assistance would not pro- ment allows a covered USG attorney to hibit them from representing co-ac- consider, recommend, and carry out cused at trial by court-martial. Im- any appropriate course of action for a puted disqualification rules for non- client without regard to the covered USG attorneys are established by their USG attorney’s personal interests or individual licensing authorities and the interests of another. When such may well proscribe all attorneys from independence is lacking or unlikely, one law office from representing a co- representation cannot be zealous. accused, or a party with an adverse in- (5) Another aspect of loyalty to a cli- terest to an existing client, if any at- ent is the general obligation of any attorney in the same office were so pro- torney to decline subsequent represen- hibited. tations involving positions adverse to a (2) Whether a covered USG attorney former client in substantially related is disqualified requires a functional matters. This obligation normally re- analysis of the facts in a specific situa- quires abstention from adverse rep- tion. The analysis should include con- resentation by the individual covered sideration of whether the following will attorney involved, but, in the military be compromised: Preserving attorney- legal office, abstention is not required client confidentiality; maintaining by other covered USG attorneys independence of judgment; and avoid- through imputed disqualification. ing positions adverse to a client. See, e.g., U.S. v. Stubbs, 23 M.J. 188 (CMA § 776.30 Successive Government and 1987). private employment. (3) Preserving confidentiality is a question of access to information. Ac- (a) Successive Government and private cess to information, in turn, is essen- employment: tially a question of fact in a particular (1) Except as the law or regulations circumstance, aided by inferences, de- may otherwise expressly permit, a ductions, or working presumptions former covered USG attorney shall not that reasonably may be made about represent a private client in connection the way in which covered USG attor- with a matter in which the covered neys work together. A covered USG at- USG attorney participated personally torney may have general access to files and substantially as a public officer or of all clients of a military law office employee, unless the appropriate Gov- (e.g., legal assistance attorney) and ernment agency consents after con- may regularly participate in discus- sultation. If a former covered USG at- sions of their affairs; it may be inferred torney in a firm, partnership, or asso- that such a covered USG attorney in ciation knows that another attorney

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within the firm, partnership, or asso- matter involving a specific party or ciation is undertaking or continuing parties, and representation in such a matter: (ii) Any other matter covered by the (i) The disqualified former covered conflict of interest rules of the Depart- USG attorney must ensure that he or ment of Defense, DON, or other appro- she is screened from any participation priate Government agency. 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 § 776.31 Former judge or arbitrator. Government information about a person 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 covered USG attorney participated per- rial disadvantage of that person. The sonally and substantially as a judge or former covered USG attorney may con- other adjudicative officer, arbitrator, tinue association with a firm, partner- or law clerk to such a person, unless all ship, or association representing any parties to the proceeding consent after such client only if the disqualified cov- disclosure. ered USG attorney is screened from (2) A covered USG attorney shall not any participation in the matter and is negotiate for employment with any apportioned no part of the fee or any person who is involved as a party or as other benefit therefrom. attorney for a party in a matter in (3) Except as the law or regulations which the covered USG attorney is par- may otherwise expressly permit, a cov- ticipating personally and substantially ered USG attorney shall not: as a judge or other adjudicative officer. (i) Participate in a matter in which A covered USG attorney serving as law the covered USG attorney participated clerk to a judge, other adjudicative of- personally and substantially while in ficer, or arbitrator may negotiate for private practice or nongovernmental employment with a party or attorney employment, unless under applicable involved in a matter in which the clerk law no one is, or by lawful delegation is participating personally and sub- may be, authorized to act in the cov- stantially, but only after the covered ered USG attorney’s stead in the mat- USG attorney has notified the judge, ter; or, other adjudicative officer, or arbi- (ii) Negotiate for private employ- trator, and been disqualified from fur- ment with any person who is involved ther involvement in the matter. as a party or as attorney for a party in (3) An arbitrator selected as a par- a matter in which the covered USG at- tisan of a party in a multi-member ar- torney is participating personally and bitration panel is not prohibited from substantially. subsequently representing that party. (4) As used in this section, the term (b) [Reserved] ‘‘matter’’ includes: (i) Any judicial or other proceeding, § 776.32 Department of the Navy as cli- application, request for a ruling or ent. other determination, contract, claim, (a) Department of Navy as client: controversy, investigation, charge, ac- (1) Except when representing an indi- cusation, arrest, or other particular vidual client pursuant to paragraph

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(a)(6) of this section, a covered USG at- (i) Asking for reconsideration of the torney represents the DON (or the Ex- matter by the acting official; ecutive agency to which assigned) act- (ii) Advising that a separate legal ing through its authorized officials. opinion on the matter be sought for These officials include the heads of or- presentation to appropriate authority ganizational elements within the Naval in the Naval service; service, such as the commanders of (iii) Referring the matter to, or seek- fleets, divisions, ships and other heads ing guidance from, higher authority in of activities. When a covered USG at- the chain of command including, if torney is assigned to such an organiza- warranted by the seriousness of the tional element and designated to pro- matter, referral to the supervisory at- vide legal services to the head of the torney assigned to the staff of the act- organization, an attorney-client rela- ing official’s next superior in the chain tionship exists between the covered at- of command; or torney and the DON as represented by (iv) Advising the acting official that the head of the organization as to mat- his or her personal legal interests are ters within the scope of the official at risk and that he or she should con- business of the organization. The head sult counsel as there may exist a con- of the organization may not invoke the flict of interests for the covered USG attorney-client privilege or the rule of attorney, and the covered USG attor- confidentiality for the head of the or- ney’s responsibility is to the organization. ganization’s own benefit but may in- (3) If, despite the covered USG attor- voke either for the benefit of the DON. ney’s efforts per paragraph (a)(2) of this In invoking either the attorney-client section, the highest authority that can privilege or attorney-client confiden- act concerning the matter insists upon tiality on behalf of the DON, the head action or refuses to act, in clear viola- of the organization is subject to being tion of law, the covered USG attorney overruled by higher authority. shall terminate representation with re- (2) If a covered USG attorney knows spect to the matter in question. In no that an officer, employee, or other event shall the attorney participate or member associated with the organiza- assist in the illegal activity. In this tional client is engaged in action, in- case, a covered USG attorney shall re- tends to act or refuses to act in a mat- port such termination of representa- ter related to the representation that tion to the attorney’s supervisory at- is either adverse to the legal interests torney or attorney representing the or obligations of the DON or a viola- next superior in the chain of command. tion of law which reasonably might be (4) In dealing with the officers, em- imputed to the Department, the cov- ployees, or members of the Naval serv- ered USG attorney shall proceed as is ice a covered USG attorney shall ex- reasonably necessary in the best inter- plain the identity of the client when it est of the Naval service. In determining is apparent that the Naval service’s in- how to proceed, the covered USG attor- terests are adverse to those of the offi- ney shall give due consideration to the cer, employee, or member. seriousness of the violation and its (5) A covered USG attorney rep- consequences, the scope and nature of resenting the Naval service may also the covered USG attorney’s representa- represent any of its officers, employ- tion, the responsibility in the Naval ees, or members, subject to the provi- service and the apparent motivation of sions of § 776.26 of this part and other the person involved, the policies of the applicable authority. If the DON’s con- Naval service concerning such matters, sent to dual representation is required and any other relevant considerations. by § 776.26 of this part, the consent Any measures taken shall be designed shall be given by an appropriate offi- to minimize prejudice to the interests cial of the DON other than the indi- of the Naval service and the risk of re- vidual who is to be represented. vealing information relating to the (6) A covered USG attorney who has representation to persons outside the been duly assigned to represent an in- service. Such measures shall include dividual who is subject to disciplinary among others: action or administrative proceedings,

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or to provide legal assistance to an in- effect on the interests of the client, or dividual, has, for those purposes, an at- if: torney-client relationship with that in- (i) The client persists in a course of dividual. action involving the covered attorney’s (b) [Reserved] services that the covered attorney reasonably believes is criminal or fraudu- § 776.33 Client under a disability. lent; (a) Client under a disability: (ii) The client has used the covered (1) When a client’s ability to make attorney’s services to perpetrate a adequately considered decisions in con- crime or fraud; nection with the representation is im- (iii) The client insists upon pursuing paired, whether because of minority, an objective that the covered attorney mental disability, or for some other considers repugnant or imprudent; reason, the covered attorney shall, as (iv) In the case of covered non-USG far as reasonably possible, maintain a attorneys, the representation will re- normal attorney-client relationship sult in an unreasonable financial bur- with the client. den on the attorney or has been ren- (2) A covered attorney may seek the dered unreasonably difficult by the cli- appointment of a guardian or take ent; or other protective action with respect to (v) Other good cause for withdrawal a client only when the covered attor- exists. ney reasonably believes that the client (3) When ordered to do so by a tri- cannot adequately act in the client’s bunal or other competent authority, a own interest. covered attorney shall continue rep- (b) [Reserved] resentation notwithstanding good cause for terminating the representa- § 776.34 Safekeeping property. tion. (a) Safekeeping property. Covered USG (4) Upon termination of representa- attorneys shall not normally hold or tion, a covered attorney shall take safeguard property of a client or third steps to the extent reasonably prac- persons in connection with representa- ticable to protect a client’s interests, tional duties. See § 776.27 of this part. such as giving reasonable notice to the (b) [Reserved] client, allowing time for assignment or employment of other counsel, and sur- § 776.35 Declining or terminating rep- rendering papers and property to which resentation. the client is entitled and, where a non- (a) Declining or terminating representa- USG attorney provided representation, tion: refunding any advance payment of fee (1) Except as stated in paragraph that has not been earned. The covered (a)(3) of this section, a covered attor- attorney may retain papers relating to ney shall not represent a client or, the client to the extent permitted by when representation has commenced, law. shall seek to withdraw from the rep- (b) [Reserved] resentation of a client if: (i) The representation will result in § 776.36 Prohibited sexual relations. violation of the Rules contained in this (a) Prohibited sexual relations: subpart or other law or regulation; (1) A covered attorney shall not have (ii) The covered attorney’s physical sexual relations with a current client. or mental condition materially impairs A covered attorney shall not require, his or her ability to represent the cli- demand, or solicit sexual relations ent; or with a client incident to any profes- (iii) The covered attorney is dis- sional representation. missed by the client. (2) A covered attorney shall not en- (2) Except as stated in paragraph gage in sexual relations with another (a)(3) of this section, a covered attor- attorney currently representing a ney may seek to withdraw from rep- party whose interests are adverse to resenting a client if withdrawal can be those of a client currently represented accomplished without material adverse by the covered attorney.

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(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]

§ 776.37 Advisor. § 776.39 Evaluation for use by third persons. (a) In representing a client, a Advisor. (a) Evaluation for use by third persons: covered attorney shall exercise inde- (1) A covered attorney may under- pendent professional judgment and take an evaluation of a matter affect- render candid advice. In rendering ad- ing a client for the use of someone vice, a covered attorney should refer other than the client if: not only to law but to other consider- (i) The covered attorney reasonably ations such as moral, economic, social, believes that making the evaluation is and political factors that may be rel- compatible with other aspects of the evant to the client’s situation. covered attorney’s relationship with (b) [Reserved] the client, and, (ii) The client consents after con- § 776.38 Mediation. sultation. (a) Mediation: (2) Except as disclosure is required in (1) A covered attorney may act as a connection with a report of an evalua- mediator between individuals if: tion, information relating to the eval- (i) The covered attorney consults uation is otherwise protected by § 776.25 with each individual concerning the of this part. implications of the mediation, includ- (b) [Reserved] ing the advantages and risks involved, and the effect on the attorney-client § 776.40 Meritorious claims and con- confidentiality, and obtains each indi- tentions. vidual’s consent to the mediation; (a) Meritorious claims and contentions. (ii) The covered attorney reasonably A covered attorney shall not bring or believes that the matter can be re- defend a proceeding, or assert or con- solved on terms compatible with each trovert an issue therein, unless there is individual’s best interests, that each a basis for doing so that is not frivo- individual will be able to make ade- lous, which includes a good faith argu- quately informed decisions in the mat- ment for an extension, modification, or ter, and that there is little risk of ma- reversal of existing law. A covered at- terial prejudice to the interests of any torney representing an accused in a

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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 counsel. A covered attorney shall not: § 776.41 Expediting litigation. (1) Unlawfully obstruct another par- (a) Expediting litigation. A covered at- ty’s access to evidence or unlawfully torney shall make reasonable efforts to alter, destroy, or conceal a document expedite litigation or other pro- or other material having potential evi- ceedings consistent with the interests dentiary value. A covered attorney of the client and the attorney’s respon- shall not counsel or assist another per- sibilities to tribunals. son to do any such act; (b) [Reserved] (2) Falsify evidence, counsel or assist a witness to testify falsely, or offer an § 776.42 Candor and obligations toward the tribunal. inducement to a witness that is prohibited by law; (a) Candor and obligations toward the (3) In pretrial procedure, make a friv- tribunal: olous discovery request or fail to make (1) A covered attorney shall not reasonably diligent effort to comply knowingly: with a legally proper discovery request (i) Make a false statement of mate- by an opposing party; rial fact or law to a tribunal; (4) In trial, allude to any matter that (ii) Fail to disclose a material fact to the covered attorney does not reason- a tribunal when disclosure is necessary ably believe is relevant or that will not to avoid assisting a criminal or fraudu- be supported by admissible evidence, lent act by the client; assert personal knowledge of facts in (iii) Fail to disclose to the tribunal issue except when testifying as a wit- legal authority in the controlling juris- ness, or state a personal opinion as to diction known to the covered attorney the justness of a cause, the credibility to be directly adverse to the position of of a witness, the culpability of a civil the client and not disclosed by oppos- litigant, or the guilt or innocence of an ing counsel; accused; or (iv) Offer evidence that the covered attorney knows to be false. If a covered (5) Request a person other than a cli- attorney has offered material evidence ent to refrain from voluntarily giving and comes to know of its falsity, the relevant information to another party covered attorney shall take reasonable unless: remedial measures; or (i) The person is a relative, an em- (v) Disobey an order imposed by a tri- ployee, or other agent of a client; and bunal unless done openly before the tri- (ii) The covered attorney reasonably bunal in a good faith assertion that no believes that the person’s interests will valid order should exist. not be adversely affected by refraining (2) The duties stated in paragraph (a) from giving such information. of this section continue to the conclu- (b) [Reserved] sion of the proceedings, and apply even if compliance requires disclosure of in- § 776.44 Impartiality and decorum of formation otherwise protected by the tribunal. § 776.25 of this part. (a) Impartiality and decorum of the tri- (3) A covered attorney may refuse to bunal. A covered attorney shall not: offer evidence that the covered attor- (1) Seek to influence a judge, court ney reasonably believes is false. member, member of a tribunal, pro- (4) In an ex parte proceeding, a cov- spective court member or member of a ered attorney shall inform the tribunal tribunal, or other official by means of all material facts known to the cov- prohibited by law or regulation;

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(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 ceration, discharge from the Naval and, except when prohibited by law or service, or other adverse personnel ac- regulation, the identity of the persons tion, and the statement relates to: involved; (i) The character, credibility, reputa- (iv) The scheduling or result of any tion, or criminal record of a party, sus- step in litigation; pect in a criminal investigation, vic- (v) A request for assistance in obtain- tim, or witness, or the identity of a ing evidence and information necessary victim or witness, or the expected tes- thereto; timony of a party, suspect, victim, or (vi) A warning of danger concerning witness; the behavior of the person involved, (ii) The possibility of a plea of guilty when there is reason to believe that to the offense or the existence or con- there exists the likelihood of substan- tents of any confession, admission, or tial harm to an individual or to the statement given by an accused or sus- public interest; and pect or that person’s refusal or failure (vii) In a criminal case, in addition to to make a statement; paragraphs (a)(3)(i) through (a)(3)(vi) of (iii) The performance or results of this section: any forensic examination or test or the (A) The identity, duty station, occu- refusal or failure of a person to submit pation, and family status of the ac- to an examination or test, or the iden- cused; tity or nature of physical evidence ex- (B) If the accused has not been appre- pected to be presented; hended, information necessary to aid in (iv) Any opinion as to the guilt or in- apprehension of that person; nocence of an accused or suspect in a (C) The fact, time, and place of ap- criminal case or other proceeding that prehension; and (D) The identity of in- could result in incarceration, discharge vestigating and apprehending officers from the Naval service, or other ad- or agencies and the length of the inves- verse personnel action; tigation. (v) Information the covered attorney (4) Notwithstanding paragraphs (a)(1) knows or reasonably should know is and (a)(2)(i) through (a)(2)(vii) of this likely to be inadmissible as evidence section, a covered attorney may make before a tribunal and would, if dis- a statement that a reasonable covered

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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 ered attorney is likely to be a nec- making extrajudicial comments that essary witness except when: have a substantial likelihood of height- (i) The testimony relates to an ening public condemnation of the ac- uncontested issue; cused. (ii) The testimony relates to the na- (b) Role of the trial counsel. (1) The ture and quality of legal services ren- trial counsel represents the United dered in the case; or States in the prosecution of special and (iii) Disqualification of the covered general courts-martial. See Article attorney would work substantial hard- 38(a), UCMJ, and R.C.M. 103(16), ship on the client. 405(d)(3)(A), and 502(d)(5), MCM, 1998. (2) A covered attorney may act as ad- Accordingly, a trial counsel has the re- vocate in a trial in which another at- sponsibility of administering justice torney in the covered attorney’s office and is not simply an advocate. This re- is likely to be called as a witness, un- sponsibility carries with it specific ob- less precluded from doing so by § 776.26 ligations to see that the accused is ac- or § 776.28 of this part. corded procedural justice and that (b) [Reserved] guilt is decided upon the basis of sufficient evidence. Paragraph (a)(1) of this § 776.47 Special responsibilities of a section recognizes that the trial coun- trial counsel. sel does not have all the authority (a) Special responsibilities of a trial vested in modern civilian prosecutors. counsel. A trial counsel shall: The authority to convene courts-mar- (1) Recommend to the convening au- tial, and to refer and withdraw specific thority that any charge or specifica- charges, is vested in convening au- tion not warranted by the evidence be thorities. Trial counsel may have the withdrawn; duty, in certain circumstances, to (2) Make reasonable efforts to assure bring to the court’s attention any that the accused has been advised of charge that lacks sufficient evidence to the right to, and the procedure for ob- support a conviction. See United States taining, counsel and has been given v. Howe, 37 M.J. 1062 (NMCMR 1993). reasonable opportunity to obtain coun- Such action should be undertaken only sel; after consultation with a supervisory

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attorney and the convening authority. ered attorney knows to be represented See also § 776.42 of this part, governing by another attorney in the matter, un- ex parte proceedings. Applicable law less the covered attorney has the con- may require other measures by the sent of the other attorney or is author- trial counsel. Knowing disregard of ized by law to do so. those obligations or a systematic abuse (b) [Reserved] of prosecutorial discretion could constitute a violation of § 776.69 of this § 776.51 Dealing with an unrepre- part. sented person. (2) The ‘‘ABA Standards for Criminal (a) Dealing with an unrepresented per- Justice: The Prosecution Function,’’ son. When dealing on behalf of a client (3rd ed. 1993), has been used by appel- with a person who is not represented by late courts in analyzing issues con- counsel, a covered attorney shall not cerning trial counsel conduct. To the state or imply that the covered attor- extent consistent with this part, the ney is disinterested. When the covered ABA standards may be used to guide attorney knows or reasonably should trial counsel in the prosecution of know that the unrepresented person criminal cases. See United States v. misunderstands the covered attorney’s Howe, 37 M.J. 1062 (NMCR 1993); United role in the matter, the covered attor- States v. Dancy, 38 M.J. 1 (CMA 1993); ney shall make reasonable efforts to United States v. Hamilton, 41 M.J. 22 correct the misunderstanding. (CMA 1994); United States v. Meek, 44 (b) [Reserved] M.J. 1 (CMA 1996). § 776.52 Respect for rights of third per- § 776.48 Advocate in nonadjudicative sons. proceedings. (a) Respect for rights of third persons. (a) Advocate in nonadjudicative pro- In representing a client, a covered at- ceedings. A covered attorney rep- torney shall not use means that have resenting a client before a legislative no substantial purpose other than to or administrative tribunal in a non- embarrass, delay, or burden a third adjudicative proceeding shall disclose person, or use methods of obtaining that the appearance is in a representa- evidence that violate the legal rights tive capacity and shall conform to the of such a person. provisions of § 776.42, § 776.43, and § 776.44 of this part. (b) [Reserved] (b) [Reserved] § 776.53 Responsibilities of the Judge § 776.49 Truthfulness in statements to Advocate General and supervisory others. attorneys. (a) Truthfulness in statements to others. (a) Responsibilities of the Judge Advo- In the course of representing a client a cate General and supervisory attorneys. covered attorney shall not knowingly; (1) The JAG and supervisory attorneys (1) Make a false statement of mate- shall make reasonable efforts to ensure rial fact or law to a third person; or that all covered attorneys conform to (2) Fail to disclose a material fact to this part. a third person when disclosure is nec- (2) A covered attorney having direct essary to avoid assisting a criminal or supervisory authority over another fraudulent act by a client, unless discovered attorney shall make reason- closure is prohibited by § 776.25 of this able efforts to ensure that the other at- part. torney conforms to this part. (b) [Reserved] (3) A supervisory attorney shall be responsible for another subordinate § 776.50 Communication with person covered attorney’s violation of this represented by counsel. part if: (a) Communication with person rep- (i) The supervisory attorney orders resented by counsel. In representing a or, with knowledge of the specific con- client, a covered attorney shall not duct, ratifies the conduct involved; or communicate about the subject of the (ii) The supervisory attorney has di- representation with a party the cov- rect supervisory authority over the

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other attorney and knows of the con- compatible with the professional obli- duct at a time when its consequences gations of a covered attorney; and can be avoided or mitigated but fails to (3) A covered attorney shall be re- take reasonable remedial action. sponsible for conduct of such a person (4) A supervisory attorney is respon- that would be a violation of this part if sible for ensuring that the subordinate engaged in by a covered attorney if: covered attorney is properly trained, is (i) The covered attorney orders or, competent to perform the duties and with the knowledge of the specific con- has all appropriate credentials, includ- duct, explicitly or impliedly ratifies ing security clearances, to perform the the conduct involved; or duties to which the subordinate cov- (ii) The covered attorney has direct ered attorney is assigned. supervisory authority over the person, (b) [Reserved] and knows of the conduct at a time [65 FR 15060, Mar. 21, 2000, as amended at 66 when its consequences can be avoided FR 70165, Nov. 21, 2002] or mitigated but fails to take reasonable remedial action. § 776.54 Responsibilities of a subordi- (b) [Reserved] nate attorney. (a) Responsibilities of a subordinate at- § 776.56 Professional independence of a covered USG attorney. torney: (1) A covered attorney is bound by (a) Professional independence of a cov- this part notwithstanding that the covered USG attorney. ered attorney acted at the direction of (1) Notwithstanding a judge advo- another person. cate’s status as a commissioned officer (2) In recognition of the judge advo- subject, generally, to the authority of cate’s unique dual role as a commis- superiors, a judge advocate detailed or sioned officer and attorney, subordi- assigned to represent an individual nate judge advocates shall obey lawful member or employee of the DON is ex- directives and regulations of super- pected to exercise unfettered loyalty visory attorneys when not inconsistent and professional independence during with this part or the duty of a judge the representation consistent with advocate to exercise independent pro- these Rules and remains ultimately re- fessional judgment as to the best inter- sponsible for acting in the best interest est of an individual client. of the individual client. (3) A subordinate covered attorney (2) Notwithstanding a civilian USG does not violate this part if that cov- attorney’s status as a Federal em- ered attorney acts in accordance with a ployee subject, generally, to the au- supervisory attorney’s written and rea- thority of superiors, a civilian USG at- sonable resolution of an arguable ques- torney detailed or assigned to rep- tion of professional duty. See § 776.10. resent an individual member or em- (b) [Reserved] ployee of the DON is expected to exercise unfettered loyalty and professional § 776.55 Responsibilities regarding independence during the representation non-attorney assistants. consistent with these Rules and re- (a) Responsibilities regarding non-attor- mains ultimately responsible for act- ney assistants. With respect to a non-ating in the best interest of the indi- torney acting under the authority, su- vidual client. pervision, or direction of a covered at- (3) The exercise of professional judg- torney: ment in accordance with paragraphs (1) The senior supervisory attorney (a)(1) and (a)(2) of this section shall in an office shall make reasonable ef- not, standing alone, be a basis for an forts to ensure that the person’s con- adverse evaluation or other prejudicial duct is compatible with the profes- action. sional obligations of a covered attor- (b)(1) This section recognizes that a ney; judge advocate is a military officer re- (2) A covered attorney having direct quired by law to obey the lawful orders supervisory authority over the non-at- of superior officers. It also recognizes torney shall make reasonable efforts to the similar status of a civilian USG at- ensure that the person’s conduct is torney. Nevertheless, the practice of

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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 (3) Additionally, a judge advocate has with any application for bar admission, a responsibility to report any instances appointment as a judge advocate, em- of unlawful command influence. See ployment as a civilian USG attorney, R.C.M. 104, MCM, 1998. certification by the JAG or his designee, or in connection with any dis- § 776.57 Unauthorized practice of law. ciplinary matter, shall not: (a) Unauthorized practice of law. A (1) Knowingly make a false state- covered USG attorney shall not: ment of fact; or (1) Except as authorized by an appro- (2) Fail to disclose a fact necessary to priate military department, practice correct a misapprehension known by law in a jurisdiction where doing so is the person to have arisen in the mat- prohibited by the regulations of the ter, or knowingly fail to respond to a legal profession in that jurisdiction; or lawful demand for information from an (2) Assist a person who is not a mem- admissions or disciplinary authority, ber of the bar in the performance of ac- except that this section does not re- tivity that constitutes the unauthor- quire disclosure of information other- ized practice of law. wise protected by § 776.25 of this part. (b) Limiting the practice of law to (b) The duty imposed by this section members of the bar protects the public extends to covered attorneys and other against rendition of legal services by attorneys seeking admission to a bar, unqualified persons. A covered USG at- application for appointment as a cov- torney’s performance of legal duties ered USG attorney (military or civil- pursuant to a military department’s ian) or certification by the JAG or his authorization, however, is considered a designee. Hence, if a person makes a Federal function and not subject to false statement in connection with an regulation by the states. Thus, a cov- application for admission or certifi- ered USG attorney may perform legal cation (e.g., misstatement by a civilian assistance duties even though the cov- attorney before a military judge re- ered attorney is not licensed to prac- garding qualifications under Rule for tice in the jurisdiction within which Courts-Martial 502), it may be the basis the covered attorney’s duty station is for subsequent disciplinary action if located. Paragraph (a)(2) of this section the person is admitted or certified, and

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in any event may be relevant in a sub- (1) Violate or attempt to violate this sequent admission application. The subpart, knowingly assist or induce an- duty imposed by this section applies to other to do so, or do so through the a covered attorney’s own admission or acts of another; discipline as well as that of others. (2) Commit a criminal act that re- Thus, it is a separate professional of- flects adversely on the covered attor- fense for a covered attorney to make a ney’s honesty, trustworthiness, or fit- knowing misrepresentation or omission ness as an attorney in other respects; in connection with a disciplinary inves- (3) Engage in conduct involving dis- tigation of the covered attorney’s own honesty, fraud, deceit, or misrepresen- conduct. This section also requires af- tation; firmative clarification of any mis- (4) Engage in conduct that is preju- understanding on the part of the ad- dicial to the administration of justice; missions, certification, or disciplinary (5) State or imply an ability to influ- authority of which the person involved ence improperly a government agency becomes aware. or official; or (6) Knowingly assist a judge or judi- § 776.67 Judicial and legal officers. cial officer in conduct that is a viola- (a) Judicial and legal officers. A cov- tion of applicable rules of judicial con- ered attorney shall not make a state- duct or other law. ment that the covered attorney knows (b)(1) Judge advocates hold a com- to be false or with reckless disregard as mission as an officer in the Navy or to its truth or falsity concerning the Marine Corps and assume legal respon- qualifications or integrity of a judge, sibilities going beyond those of other investigating officer, hearing officer, citizens. A judge advocate’s abuse of adjudicatory officer, or public legal of- such commission can suggest an inabil- ficer, or of a candidate for election or ity to fulfill the professional role of appointment to judicial or legal office. judge advocate and attorney. This con- (b) [Reserved] cept has similar application to civilian USG attorneys. § 776.68 Reporting professional mis- (2) Covered non-USG attorneys, Re- conduct. servists, and Retirees (acting in their (a) Reporting professional misconduct: civilian capacity), like their active- (1) A covered attorney having knowl- duty counterparts, are expected to edge that another covered attorney has demonstrate model behavior and exem- committed a violation of this part that plary integrity at all times. JAG may raises a substantial question as to that consider any and all derogatory or ben- covered attorney’s honesty, trust- eficial information about a covered at- worthiness, or fitness as a covered attorney, for purposes of determining the torney in other respects, shall report attorney’s qualification, professional such violation in accordance with the competence, or fitness to practice law procedures set forth in subpart C of in DON matters, or to administer dis- this part. cipline under this part. Such consider- (2) A covered attorney having knowl- ation shall be made, except in emer- edge that a judge has committed a vio- gency situations necessitating imme- lation of applicable rules of judicial diate action, according to the proce- conduct that raises a substantial ques- dures established in subpart C of this tion as to the judge’s fitness for office part. shall report such violation in accordance with the procedures set forth in § 776.70 Jurisdiction. subpart C of this part. (a) Jurisdiction. All covered attorneys, (3) This Rule does not require disclo- as defined in § 776.2 of this part, shall be sure of information otherwise pro- governed by this part. tected by § 776.25 of this part. (b)(1) Many covered USG attorneys (b) [Reserved] practice outside the territorial limits of the jurisdiction in which they are li- § 776.69 Misconduct. censed. While covered attorneys re- (a) Misconduct. It is professional mis- main subject to the governing author- conduct for a covered attorney to: ity of the jurisdiction in which they

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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 legal services in any DON matter under or of the bar of the highest court of a JAG cognizance and supervision, may State, or a lawyer otherwise authorized be precluded from such practice of law by a recognized licensing authority to if, in the opinion of the JAG (as exer- practice law and found by the military cised through this instruction) the at- judge to be qualified to represent the torney’s conduct in any venue renders accused. that attorney unable or unqualified to practice in DON programs or pro- (b)(1) The licensing authority grant- ceedings. ing the certification or privilege to practice law within the jurisdiction § 776.71 Requirement to remain in generally defines the phrase ‘‘in good good standing with licensing au- standing.’’ At a minimum it means that thorities. the individual is subject to the juris- (a) Requirement to remain in good diction’s disciplinary review process; standing with state licensing authority: has not been suspended or disbarred (1) Each officer of the Navy appointed from the practice of law within the ju- as a member of the Judge Advocate risdiction; is up-to-date in the payment General’s Corps, each officer of the Ma- of all required fees; has met applicable rine Corps designated a judge advocate, continuing legal education require- and each civil service and contracted ments which the jurisdiction has im- civilian attorney who practices law posed (or the cognizant authority has under the cognizance and supervision waived those requirements in the case of the JAG shall maintain a status con- of the individual); and has met such sidered ‘‘in good standing’’ at all times other requirements as the cognizant with the licensing authority admitting authority has set to remain eligible to the individual to the practice of law practice law. So long as these condi- before the highest court of at least one tions are met, a covered USG attorney State, Territory, Commonwealth, or may be considered ‘‘inactive’’ as to the the District of Columbia. practice of law within a particular ju- (2) The JAG, the Director, JA Divi- risdiction and still be considered ‘‘in sion, HQMC, or any other supervisory good standing’’ for purposes of this sec- attorney may require any covered USG tion. attorney over whom they exercise au- (2) Rule for Courts-Martial thority to establish that the attorney 502(d)(3)(A) requires that any civilian

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defense counsel representing an ac- §§ 776.72–776.75 [Reserved] cused in a court-martial be a member of the bar of a Federal court or of the Subpart C—Complaint Processing bar of the highest court of a State. Procedures This civilian defense counsel qualification only has meaning if the attorney § 776.76 Policy. is a member in good standing, see ‘‘ ’’ (a) It is JAG’s policy to investigate U.S. v. Waggoner, 22 M.J. 692 (AFCMR and resolve, expeditiously and fairly, 1986), and is then authorized to practice all allegations of professional impro- law within that jurisdiction. It is ap- priety lodged against covered attor- propriate for the military judge, in neys practicing under JAG cognizance each and every case, to ensure that a and supervision. civilian defense counsel is qualified to (b) Rules Counsel approval will be ob- represent the accused. tained before conducting any prelimi- (3) Failure of a judge advocate to nary inquiry or formal investigation comply with the requirements of this into an alleged violation of subpart B Rule may result in professional dis- of this part or the Code of Judicial ciplinary action as provided for in this Conduct. The Rules Counsel will notify instruction, loss of certification under the JAG prior to the commencement of Articles 26 and/or 27(b), UCMJ, adverse any preliminary inquiry or investiga- entries in military service records, and tion. The preliminary inquiry and any administrative separation under Sec- subsequent investigation will be con- retary of the Navy Instruction 1920.6 ducted according to the procedures set (series) based on the officer’s failure to forth in this subpart. maintain professional qualifications. § 776.77 Related investigations and ac- In the case of civil service and con- tions. tracted civilian attorneys practicing under the JAG’s cognizance and super- Acts or omissions by covered attor- vision, failure to maintain good stand- neys may constitute professional misconduct, criminal misconduct, poor ing or otherwise to comply with the re- performance of duty, or a combination quirements of this Rule may result in of all three. Care must be taken to adverse administrative action under characterize appropriately the nature applicable personnel regulations, in- of a covered attorney’s conduct to de- cluding termination of employment. termine who may and properly should (4) A covered USG attorney need only take official action. remain in good standing in one juris- (a) Questions of legal ethics and pro- diction. If admitted to the practice of fessional misconduct by covered attor- law in more than one jurisdiction, how- neys are within the exclusive province ever, and any jurisdiction commences of JAG. Ethical or professional mis- disciplinary action against or dis- conduct will not be attributed to any ciplines, suspends or disbars the cov- covered attorney in any official record ered USG attorney from the practice of without a final JAG determination, law, the covered USG attorney must so made in accordance with this part, advise the JAG. that such misconduct has occurred. (5) Certification by the United States (b) Criminal misconduct is properly Court of Appeals for the Armed Forces addressed by the covered USG attor- that a covered attorney is in good ney’s commander through the discipli- standing with that court will not sat- nary process provided under the UCMJ isfy the requirement of this section, and implementing regulations, or since such status is normally depend- through referral to appropriate civil ent on Article 27 UCMJ certification authority. alone. (c) Poor performance of duty is properly addressed by the covered USG attorney’s reporting senior through a va- riety of administrative actions, including documentation in fitness reports or employee appraisals.

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(d) Prior JAG approval is not re- tempted resolution with the covered quired to investigate allegations of attorney concerned. Supporting state- criminal conduct or poor performance ments, if any, should be attached to of duty involving covered attorneys. the complaint. When, however, investigations into (b) A complaint may be initiated by criminal conduct or poor performance any person, including the Administra- reveal conduct that constitutes a violative Law Division of the Office of JAG tion of this part, or of the Code of Judi- (JAG (13)), or the Judge Advocate Re- cial Conduct in the case of judges, such search and Civil Law Branch, JA Divi- conduct shall be reported to the Rules sion, HQMC (JAR). Counsel immediately. (e) Inquiries into allegations of pro- § 776.80 Initial screening and Rules fessional misconduct will normally be Counsel. held in abeyance until any related (a) Complaints shall be forwarded to criminal investigation or proceeding is JAG(13) or, in cases involving Marine complete. However, a pending criminal Corps judge advocates or civil service investigation or proceeding does not and contracted civilian attorneys who bar the initiation or completion of a perform legal services under the cog- professional misconduct investigation nizance and supervision of Director, JA stemming from the same or related in- Division, HQMC, to JAR. cidents or prevent the JAG from im- (b) JAG(13) and JAR shall log all posing professional disciplinary sanc- complaints received and will ensure tions as provided for in this subpart. that a copy is provided to the covered attorney who is the subject of the com- § 776.78 Informal complaints. plaint. Informal, anonymous, or ‘‘hot line’’ (c) The covered attorney concerned type complaints alleging professional may elect to provide an initial state- misconduct must be referred to appro- ment regarding the complaint for the priate authority (such as the JAG In- Rules Counsel’s consideration. The cov- spector General or the concerned su- ered attorney will promptly inform pervisory attorney) for inquiry. Such JAG(13) or JAR if he or she intends to complaints are not, by themselves, cog- submit any such statement. At this nizable under this subpart but may, if screening stage, forwarding of the com- reasonably confirmed, be the basis of a plaint to the Rules Counsel will not be formal complaint described in § 776.79 unduly delayed to await the covered of this part. attorney’s submission. (d) The Rules Counsel shall initially § 776.79 The complaint. review the complaint, and any state- (a) The complaint shall: ment submitted by the covered attor- (1) Be in writing and be signed by the ney complained of, to determine complainant; whether it complies with the require- (2) State that the complainant has ments set forth in § 776.79 of this part. personal knowledge, or has otherwise (1) Complaints that do not comply received reliable information indi- with the requirements may be returned cating, that: to the complainant for correction or (i) The covered attorney concerned completion, and resubmission to is, or has been, engaged in misconduct JAG(13) or JAR. If the complaint is not that demonstrates a lack of integrity, corrected or completed, and resub- that constitutes a violation of subpart mitted within 30 days of the date of its B of this part or a failure to meet the return, the Rules Counsel may close ethical standards of the profession; or the file without further action. JAG (ii) The covered attorney concerned (13) and JAR will maintain copies of all is ethically, professionally, or morally correspondence relating to the return unqualified to perform his or her du- and resubmission of a complaint, and ties; and shall notify the covered attorney con- (3) Contain a complete, factual state- cerned if and when the Rules Counsel ment of the acts or omissions consti- takes action to close the file. tuting the substance of the complaint, (2) Complaints that comply with the as well as a description of any at- requirements shall be further reviewed

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by the Rules Counsel to determine sel or attached to Navy units, to the whether the complaint: officer exercising general court-martial (i) Establishes probable cause to be- jurisdiction (OEGCMJ) over the lieve that a violation of this part or of charged covered attorney, and request, the Judicial Code has occurred; or on behalf of JAG, that the OEGCMJ ap- (ii) Alleges ineffective assistance of point a covered attorney (normally the counsel, or other violations of subpart concerned attorney’s supervisor) to B of this part, as a matter of defense in conduct a preliminary inquiry into the a court-martial, administrative separa- matter; tion, or nonjudicial punishment pro- (2) In all other cases, to the super- ceeding. If so, the Rules Counsel shall visory attorney in the charged attor- forward a copy of the complaint to the ney’s chain of command (or such other proper appellate authority for appro- officer as JAG may designate), and di- priate action and comment. rect, on behalf of JAG, the supervisory (e) The Rules Counsel shall close the attorney to conduct a preliminary in- file without further action if the com- quiry into the matter. plaint does not establish probable (b) The Rules Counsel shall provide a cause to believe that a violation has copy of the charges, complaint, and occurred. The Rules Counsel shall no- any allied papers to the covered attor- tify the complainant and the covered ney against whom the complaint is attorney concerned that the file has made and notify him or her that a pre- been closed. JAG(13) and JAR will liminary inquiry will be conducted. maintain copies of all correspondence Service of complaints, charges, and related to the closing of the file. other materials shall be made by per- (f) The Rules Counsel may close the sonal service, or by registered or cer- file if there is a determination that the tified mail sent to the covered attor- complaint establishes probable cause ney’s last known address reflected in but the violation is of a minor or tech- official Navy or Marine Corps records nical nature appropriately addressed or in the records of the state bar(s) through corrective counseling. The which licensed the attorney to practice Rules Counsel shall report any such de- law. cision to the JAG. The Rules Counsel shall ensure the covered attorney con- (c) The Rules Counsel shall also pro- cerned receives appropriate counseling vide a copy of the charges to the com- and shall notify the complainant and manding officer, or equivalent, of the the covered attorney concerned that covered USG attorney concerned if the the file has been closed. JAG(13) and complaint involves a covered USG at- JAR will maintain copies of all cor- torney on active duty or in civilian respondence related to the closing of Federal service. the file. The covered attorney con- (d) The Rules Counsel shall also for- cerned is responsible, under these cir- ward a copy of the charges as follows: cumstances, to determine if his or her (1) In cases involving Navy or Marine Federal, state, or local licensing au- Corps judge advocates serving in Naval thority requires reporting of such ac- Legal Service Command (NLSC) units, tion. to Vice Commander, NLSC; (2) In cases involving Navy attorneys § 776.81 Charges. serving in Marine Corps units, or in- (a) If the Rules Counsel determines volving Marine Corps attorneys serving that there is probable cause to believe in Navy units, to the Commandant of that a violation of this part or of the the Marine Corps (Attn: JA); Code of Judicial Conduct has occurred, (3) In cases involving members of the the Rules Counsel shall draft charges Navy-Marine Corps Trial Judiciary, to alleging violations of this part or of the Trial Judiciary Chief Judge; and the Code of Judicial Conduct and for- (4) To the appropriate military serv- ward the charges, together with the ice attorney discipline section if the original complaint and any allied pa- complaint involves covered attorneys pers, as follows: certified by the Judge Advocates Gen- (1) In cases involving Marine Corps eral/Chief Counsel of the other uni- attorneys not serving as defense coun- formed services.

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§ 776.82 Interim suspension. shall receive any information that the (a) Where the Rules Counsel deter- covered attorney chooses to submit on mines there is probable cause to be- the limited issue of whether to con- lieve that a covered attorney has com- tinue the interim suspension. The des- mitted misconduct or other violations ignated officer shall submit a rec- of this part, and poses a substantial ommendation to JAG within 5 calendar threat of irreparable harm to his or her days of conclusion. clients or the orderly administration of (e) A covered attorney may, based military justice, the Rules Counsel upon a claim of changed circumstances shall so advise the JAG. Examples of or newly discovered evidence, petition when a covered attorney may pose a for dissolution or amendment of JAG’s ‘‘substantial threat of irreparable imposition of interim suspension. harm’’ include: (f) Any professional responsibility in- (1) When charged with the commis- vestigation involving a covered attor- sion of a crime which involves moral ney who has been suspended pursuant turpitude or reflects adversely upon to this section shall proceed and be the covered attorney’s fitness to prac- concluded without appreciable delay. tice law, and where substantial evi- However, JAG may determine it nec- dence exists to support the charge; essary to await completion of a related (2) When engaged in the unauthorized criminal investigation or proceeding, practice of law (e.g., failure to main- or completion of a professional respon- tain good standing in accordance with sibility action initiated by other li- § 776.71 of this part); or censing authorities. In such cases, JAG (3) Where unable to represent client shall cause the Rules Counsel to so no- interests competently. tify the covered attorney under in- (b) Upon receipt of information from terim suspension. Where necessary, the Rules Counsel, JAG may order the continuation of the interim suspension covered attorney to show cause why he shall be reviewed by JAG every 6 or she should not face interim suspen- months. sion, pending completion of a professional responsibility investigation. The § 776.83 Preliminary inquiry. covered attorney shall have 10 calendar (a) The purpose of the preliminary in- days in which to respond. quiry is to determine whether, in the (c) If an order to show cause has been opinion of the officer appointed to con- issued under paragraph (b) of this sec- duct the preliminary inquiry (PIO), the tion, and the period for response has questioned conduct occurred and, if so, passed without a response, or after con- whether it constitutes a violation of sideration of any response and finding this part or the Code of Judicial Con- sufficient evidence demonstrating duct. The PIO is to recommend appro- probable cause to believe that the cov- priate action in cases of substantiated ered attorney is guilty of misconduct violations. and poses a substantial threat of irrep- (b) Upon receipt of the complaint and arable harm to his or her client or the charges, the PIO shall promptly inves- orderly administration of military jus- tigate the charges, generally following tice, JAG may direct an interim sus- the format and procedures set forth in pension of the covered attorney’s cer- the Manual of the Judge Advocate Gen- tification under Articles 26(b) or 27(b), eral for the conduct of command inves- UCMJ, or R.C.M. 502(d)(3), or the au- tigations. Reports of relevant inves- thority to provide legal assistance, tigations by other authorities includ- pending the results of the investigation ing, but not limited to, State bar asso- and final action under this instruction. ciations may be used. The PIO should (d) Within 10 days of JAG’s decision also: to impose an interim suspension, the (1) Identify and obtain sworn affida- covered attorney may request an op- vits or statements from all relevant portunity to be heard before an impar- and material witnesses to the extent tial officer designated by JAG. Where practicable; so requested, that opportunity will be (2) Identify, gather, and preserve all scheduled within 10 calendar days of other relevant and material evidence; the request. The designated officer and

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(3) Provide the covered attorney con- correspondence related to the closing cerned an opportunity to review all of the file. evidence, affidavits, and statements collected and a reasonable period of (2) If the Rules Counsel determines, time (normally not exceeding 7 days) either consistent with a PIO rec- to submit a written statement or any ommendation or through the Rules other written material that the cov- Counsel’s own review of the report, ered attorney wishes considered. that a violation of this part has oc- (c) The PIO may appoint and use curred but that the violation is of a such assistants as may be necessary to minor or technical nature, then the conduct the preliminary inquiry. Rules Counsel may determine that cor- (d) The PIO shall personally review rective counseling is appropriate and the results of the preliminary inquiry close the file. The Rules Counsel shall to determine whether, by a preponder- report any such decision to the JAG. ance of the evidence, a violation of this The Rules Counsel shall ensure that part or of the Judicial Code has oc- the covered attorney concerned re- curred. ceives appropriate counseling and shall (1) If the PIO determines that no vio- notify the complainant, the covered at- lation has occurred or that the viola- torney concerned, and all officials pre- tion is minor or technical in nature viously provided copies of the com- and warrants only corrective coun- plaint that the file has been closed. seling, then he or she may recommend JAG(13) and/or JAR, as appropriate, that the file be closed. will maintain copies of all correspond- (2) If the PIO determines by a prepon- ence related to the closing of the file. derance of the evidence that a viola- The covered attorney concerned is re- tion did occur, and that corrective ac- sponsible, under these circumstances, tion greater than counseling may be to determine if his or her Federal, warranted, he or she shall then rec- state, or local licensing authority re- ommend what further action is deemed quires reporting such action. appropriate. (e) The PIO shall forward (via the (3) If the Rules Counsel determines, OEGCMJ in appropriate Marine cases) either consistent with a PIO rec- the results of the preliminary inquiry ommendation or through the Rules to the Rules Counsel, providing copies Counsel’s own review of the report, to the covered attorney concerned and that further professional discipline or all parties to whom the charges were corrective action may be warranted, previously sent. the Rules Counsel shall: (f) The Rules Counsel shall review all (i) In cases involving Marine Corps preliminary inquiries. If the report is attorneys not serving as defense coun- determined by the Rules Counsel to be sel or attached to Navy units, request, incomplete, the Rules Counsel shall re- on behalf of JAG, that the subject at- turn it to the PIO, or to another in- torney’s OEGCMJ appoint a disin- quiry officer, for further or supple- terested covered attorney (normally mental inquiry. If the report is com- senior to the covered attorney complete, then: plained of and not previously involved (1) If the Rules Counsel determines, in the case) to conduct an ethics inves- either consistent with the PIO rec- tigation into the matter; ommendation or through the Rules Counsel’s own review of the report, (ii) In all other cases, appoint, on be- that a violation of this part or Code of half of JAG, a disinterested covered at- Judicial Conduct has not occurred and torney (normally senior to the covered that further action is not warranted, attorney complained of and not pre- the Rules Counsel shall close the file viously involved in the case) to con- and notify the complainant, the cov- duct an ethics investigation; and ered attorney concerned, and all officials previously provided copies of the (iii) Notify those supervisory attor- complaint. JAG(13) and/or JAR, as ap- neys listed in § 776.81(c) and § 776.81(d) of propriate, will maintain copies of all this part.

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§ 776.84 Ethics investigation. no transcript of the hearing need be (a) Whenever an ethics investigation made. Evidence gathered during, or is initiated, the covered attorney con- subsequent to, the preliminary inquiry cerned will be so notified, in writing, and such additional evidence as may be by the Rules Counsel. offered by the covered attorney shall (b) The covered attorney concerned be considered. will be provided written notice of the (e) The IO may appoint and use such following rights in connection with the assistants as may be necessary to con- ethics investigation: duct the ethics investigation. (1) To request a hearing before the in- (f) The IO shall prepare a report vestigating officer (IO); which summarizes the evidence, to in- (2) To inspect all evidence gathered; clude information presented at any (3) To present written or oral state- hearing. ments or materials for consideration; (1) If the IO believes that no violation (4) To call witnesses at his or her own has occurred or that the violation is expense (local military witnesses minor or technical in nature and war- should be made available at no cost); rants only corrective counseling, then (5) To be assisted by counsel (see he or she may recommend that the file paragraph (c) of this section); be closed. (6) To challenge the IO for cause (2) If the IO believes that a violation (such challenges must be made in writ- did occur, and that corrective action ing and sent to the Rules Counsel via greater than counseling is warranted, the challenged officer); and he or she shall then recommend what (7) To waive any or all of these further action is deemed appropriate. rights. (g) The IO shall forward the ethics in- (c) The covered attorney may be rep- vestigation, including the IO’s rec- resented by counsel at the hearing. ommendations, to the Rules Counsel, Such counsel may be: as follows: (1) A civilian attorney retained at no (1) In cases involving Navy or Marine expense to the Government; or, Corps attorneys serving with NLSC (2) In the case of a covered USG at- units, via Vice Commander, NLSC; torney, another USG attorney: (2) In cases involving Navy attorneys (i) Detailed by the cognizant Naval serving with Marine Corps units, via Legal Service Office (NLSO), Law Cen- the Commandant of the Marine Corps ter, or Legal Service Support Section (Attn: JA); (LSSS); or (3) In cases involving Navy or Marine (ii) Requested by the covered attor- Corps attorneys serving in subordinate ney concerned, if such counsel is at- Navy fleet or staff billets, via the fleet tached to the cognizant NLSO, Law or staff judge advocate attached to the Center, LSSS, or to a Navy or Marine appropriate second-echelon com- Corps activity located within 100 miles mander; of the hearing site at the time of the (4) In cases involving members of the scheduled hearing, and if such counsel Navy-Marine Corps Trial Judiciary, via is reasonably available, as determined the Trial Judiciary Chief Judge; by the requested counsel’s reporting (5) In cases involving Marine Corps senior in his or her sole discretion. attorneys serving in defense billets, via There is no right to detailed counsel if the Chief Defense Counsel of the Ma- requested counsel is made available. rine Corps; (d) If a hearing is requested, the IO (6) In cases involving Marine Corps will conduct the hearing after reason- attorneys not serving in defense coun- able notice to the covered attorney sel billets or in Navy units, via the concerned. The hearing will not be un- OEGCMJ over the concerned attorney; reasonably delayed. The hearing is not and adversarial in nature and there is no (7) In cases involving covered attor- right to subpoena witnesses. Rules of neys certified by the Judge Advocates evidence do not apply. The covered at- General/Chief Counsel of the other U.S. torney concerned or his or her counsel Armed Forces, via the appropriate may question witnesses that appear. military service attorney discipline The proceedings shall be recorded but section of that U.S. Armed Force.

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(h) The Rules Counsel shall review all § 776.85 Effect of separate proceeding. ethics investigations. If the report is (a) For purposes of this section, the determined by the Rules Counsel to be term ‘‘separate proceeding’’ includes, incomplete, the Rules Counsel shall re- but is not limited to, court-martial, turn it to the IO, or to another inquiry non-judicial punishment, administra- officer, for further or supplemental in- tive board, or similar civilian or mili- quiry. If the report is complete, then: tary proceeding. (1) If the Rules Counsel determines, (b) In cases in which a covered attor- either consistent with the IO rec- ney is determined, at a separate pro- ommendation or through the Rules ceeding determined by the Rules Coun- Counsel’s own review of the investiga- sel to afford procedural protection tion, that a violation of this part or equal to that provided by a preliminary Code of Judicial Conduct has not oc- inquiry under this instruction, to have curred and that further action is not committed misconduct which forms warranted, the Rules Counsel shall the basis for ethics charges under this close the file and notify the complain- instruction, the Rules Counsel may dis- ant, the covered attorney concerned, pense with the preliminary inquiry and and all officials previously provided proceed directly with an ethics inves- copies of the complaint. JAG(13) and/or tigation. JAR, as appropriate, will maintain cop- (c) In those cases in which a covered ies of all correspondence related to the attorney is determined to have com- closing of the file. mitted misconduct at a separate pro- (2) If the Rules Counsel determines, ceeding which the Rules Counsel deter- either consistent with the IO rec- mines has afforded procedural protec- ommendation or through the Rules tion equal to that provided by an eth- Counsel’s own review of the investiga- ics investigation under this instruction, that a violation of this part or tion, the previous determination re- Code of Judicial Conduct has occurred garding the underlying misconduct is but that the violation is of a minor or res judicata with respect to that issue technical nature, then the Rules Coun- during an ethics investigation. A sub- sel may determine that corrective sequent ethics investigation based on counseling is appropriate and close the such misconduct shall afford the cov- file. The Rules Counsel shall report any ered attorney a hearing into whether such decision to the JAG. The Rules the underlying misconduct constitutes Counsel shall ensure that the covered a violation of this part, whether the attorney concerned receives appro- violation affects his or her fitness to priate counseling and shall notify the practice law, and what sanctions, if complainant, the covered attorney con- any, are appropriate. cerned, and all officials previously pro- (d) The Rules Counsel may dispense vided copies of the complaint that the with the preliminary inquiry and eth- file has been closed. JAG(13) and/or ics investigation, and if warranted, rec- JAR, as appropriate, will maintain cop- ommend to JAG that the covered at- ies of all correspondence related to the torney concerned be disciplined, con- closing of the file. The covered attor- sistent with this subpart, after pro- ney concerned is responsible, under viding the covered attorney concerned these circumstances, to determine if written notice and an opportunity to his or her Federal, state, or local li- be heard in writing, in those cases in censing authority requires reporting which a covered attorney has been: such action. (1) Decertified or suspended from the (3) If the Rules Counsel believes, ei- practice of law or otherwise subjected ther consistent with the IO rec- to professional responsibility discipline ommendation or through the Rules by the Judge Advocate General of an- Counsel’s own review of the investiga- other Military Department; tion, that professional disciplinary ac- (2) Disbarred or suspended from the tion greater than corrective counseling practice of law or otherwise subjected is warranted, the Rules Counsel shall to professional responsibility discipline forward the investigation, with rec- by the Court of Appeals for the Armed ommendations as to appropriate dis- Forces or by any Federal, State, or position, to JAG. local bar; or

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(3) Convicted of a felony (or any of- (iii) Suspending or revoking, for a fense punishable by one year or more of specified or indefinite period, the cov- imprisonment) in a civilian or military ered attorney’s authority to provide court which, in the opinion of the legal assistance; Rules Counsel, renders the attorney (iv) Where finding that the mis- unqualified or incapable of properly or conduct so adversely affects the cov- ethically representing the DON or a ered attorney’s continuing ability to client when the Rules Counsel has de- practice law in the naval service or termined that the attorney was af- that the misconduct so prejudices the forded procedural protection equal to reputation of the DON legal commu- that provided by an ethics investiga- nity, the administration of military tion under this instruction. justice, the practice of law under the § 776.86 Action by JAG. cognizance of JAG, or the armed services as a whole, that certification (a) JAG is not bound by the rec- under Article 27(b), UCMJ (10 U.S.C. ommendation rendered by the Rules 827(b)), or R.C.M. 502(b)(3), MCM, 1998, Counsel, IO, PIO, or any other inter- should be suspended or is no longer ap- ested party, but will base any action on propriate, directing such certification the record as a whole. Nothing in this to be suspended for a prescribed or in- instruction limits JAG authority to definite period or to be removed perma- suspend from the practice of law in nently; DON matters any covered attorney alleged or found to have committed pro- (v) In the case of a judge, where find- fessional misconduct or violated this ing that the misconduct so prejudices part, either in DON or civilian pro- the reputation of military trial and ap- ceedings. pellate judges that certification under (b) JAG may, but is not required to, Article 26(b), UCMJ (10 U.S.C. 826(b)), refer any case to the Professional Re- should be suspended or is no longer ap- sponsibility Committee for an advisory propriate, directing such certification opinion on interpretation of subpart B to be suspended for a prescribed or in- of this part or its application to the definite period or to be removed perma- facts of a particular case. nently; and (c) Upon receipt of the ethics inves- (vi) Directing the Rules Counsel to tigation, and any requested advisory contact appropriate authorities such as opinion, JAG will take such action as the Chief of Naval Personnel or the JAG considers appropriate in JAG’s Commandant of the Marine Corps so sole discretion. JAG may, for example: that pertinent entries in appropriate (1) Direct further inquiry into speci- DON records may be made; notifying fied areas. the complainant, covered attorney con- (2) Where determining the allega- cerned, and any officials previously tions to be unfounded, or that no fur- provided copies of the complaint; and ther action is warranted, direct the notifying appropriate tribunals and au- Rules Counsel to make appropriate file thorities of any action taken to sus- entries and to notify the complainant, pend, decertify, or limit the practice of covered attorney concerned, and all in- a covered attorney as counsel before terested parties of such determination. courts-martial or the U.S. Navy-Ma- (3) Where determining the allega- rine Corps Court of Appeals, adminis- tions to be supported by clear and con- trative boards, as a legal assistance at- vincing evidence, take appropriate cor- torney, or in any other legal pro- rective action including, but not lim- ceeding or matter conducted under ited to: JAG cognizance and supervision. (i) Limiting the covered attorney to practice under direct supervision of a § 776.87 Finality. supervisory attorney; (ii) Limiting the covered attorney to Any action taken by JAG is final, practice in certain areas or forbidding subject to any remedies afforded by him or her from practice in certain Navy Regulations or any other regula- areas; tion to the covered attorney concerned.

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§ 776.88 Report to licensing authori- The JAG’s decision in no way dimin- ties. ishes a covered attorney’s responsi- Upon determination by JAG that a bility to report adverse professional violation of the Rules or the Code of disciplinary action as required by the Judicial Conduct has occurred, JAG attorney’s Federal, State, and local bar may cause the Rules Counsel to report or other licensing authority. that fact to the Federal, State, or local bar or other licensing authority of the Subpart D [Reserved] covered attorney concerned. If so reported, notice to the covered attorney shall be provided by the Rules Counsel. PARTS 777–799 [RESERVED]

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

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Title 1—General Provisions

I Administrative Committee of the Federal Register (Parts 1—49) II Office of the Federal Register (Parts 50—299) IV Miscellaneous Agencies (Parts 400—500)

Title 2—Grants and Agreements

SUBTITLE A—OFFICE OF MANAGEMENT AND BUDGET GUIDANCE FOR GRANTS AND AGREEMENTS I [Reserved] II Office of Management and Budget Circulars and Guidance [Re- served] SUBTITLE B—FEDERAL AGENCY REGULATIONS FOR GRANTS AND AGREEMENTS [RESERVED]

Title 3—The President

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

Title 4—Accounts

I General Accounting Office (Parts 1—99)

Title 5—Administrative Personnel

I Office of Personnel Management (Parts 1—1199) II Merit Systems Protection Board (Parts 1200—1299) III Office of Management and Budget (Parts 1300—1399) V The International Organizations Employees Loyalty Board (Parts 1500—1599) VI Federal Retirement Thrift Investment Board (Parts 1600—1699) VIII Office of Special Counsel (Parts 1800—1899) IX Appalachian Regional Commission (Parts 1900—1999) XI Armed Forces Retirement Home (Part 2100) XIV Federal Labor Relations Authority, General Counsel of the Fed- eral Labor Relations Authority and Federal Service Impasses Panel (Parts 2400—2499)

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XV Office of Administration, Executive Office of the President (Parts 2500—2599) XVI Office of Government Ethics (Parts 2600—2699) XXI Department of the Treasury (Parts 3100—3199) XXII Federal Deposit Insurance Corporation (Part 3201) XXIII Department of Energy (Part 3301) XXIV Federal Energy Regulatory Commission (Part 3401) XXV Department of the Interior (Part 3501) XXVI Department of Defense (Part 3601) XXVIII Department of Justice (Part 3801) XXIX Federal Communications Commission (Parts 3900—3999) XXX Farm Credit System Insurance Corporation (Parts 4000—4099) XXXI Farm Credit Administration (Parts 4100—4199) XXXIII Overseas Private Investment Corporation (Part 4301) XXXV Office of Personnel Management (Part 4501) XL Interstate Commerce Commission (Part 5001) XLI Commodity Futures Trading Commission (Part 5101) XLII Department of Labor (Part 5201) XLIII National Science Foundation (Part 5301) XLV Department of Health and Human Services (Part 5501) XLVI Postal Rate Commission (Part 5601) XLVII Federal Trade Commission (Part 5701) XLVIII Nuclear Regulatory Commission (Part 5801) L Department of Transportation (Part 6001) LII Export-Import Bank of the United States (Part 6201) LIII Department of Education (Parts 6300—6399) LIV Environmental Protection Agency (Part 6401) LV National Endowment for the Arts (Part 6501) LVI National Endowment for the Humanities (Part 6601) LVII General Services Administration (Part 6701) LVIII Board of Governors of the Federal Reserve System (Part 6801) LIX National Aeronautics and Space Administration (Part 6901) LX United States Postal Service (Part 7001) LXI National Labor Relations Board (Part 7101) LXII Equal Employment Opportunity Commission (Part 7201) LXIII Inter-American Foundation (Part 7301) LXV Department of Housing and Urban Development (Part 7501) LXVI National Archives and Records Administration (Part 7601) LXVII Institute of Museum and Library Services (Part 7701) LXIX Tennessee Valley Authority (Part 7901) LXXI Consumer Product Safety Commission (Part 8101) LXXIII Department of Agriculture (Part 8301) LXXIV Federal Mine Safety and Health Review Commission (Part 8401)

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LXXVI Federal Retirement Thrift Investment Board (Part 8601) LXXVII Office of Management and Budget (Part 8701)

Title 6—Homeland Security

I Department of Homeland Security, Office of the Secretary (Parts 0—99)

Title 7—Agriculture

SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE (PARTS 0—26) SUBTITLE B—REGULATIONS OF THE DEPARTMENT OF AGRICULTURE I Agricultural Marketing Service (Standards, Inspections, Mar- keting Practices), Department of Agriculture (Parts 27—209) II Food and Nutrition Service, Department of Agriculture (Parts 210—299) III Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 300—399) IV Federal Crop Insurance Corporation, Department of Agriculture (Parts 400—499) V Agricultural Research Service, Department of Agriculture (Parts 500—599) VI Natural Resources Conservation Service, Department of Agri- culture (Parts 600—699) VII Farm Service Agency, Department of Agriculture (Parts 700— 799) VIII Grain Inspection, Packers and Stockyards Administration (Fed- eral Grain Inspection Service), Department of Agriculture (Parts 800—899) IX Agricultural Marketing Service (Marketing Agreements and Or- ders; Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900—999) X Agricultural Marketing Service (Marketing Agreements and Or- ders; Milk), Department of Agriculture (Parts 1000—1199) XI Agricultural Marketing Service (Marketing Agreements and Or- ders; Miscellaneous Commodities), Department of Agriculture (Parts 1200—1299) XIV Commodity Credit Corporation, Department of Agriculture (Parts 1400—1499) XV Foreign Agricultural Service, Department of Agriculture (Parts 1500—1599) XVI Rural Telephone Bank, Department of Agriculture (Parts 1600— 1699) XVII Rural Utilities Service, Department of Agriculture (Parts 1700— 1799) XVIII Rural Housing Service, Rural Business-Cooperative Service, Rural Utilities Service, and Farm Service Agency, Depart- ment of Agriculture (Parts 1800—2099) XX Local Television Loan Guarantee Board (Parts 2200—2299)

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XXVI Office of Inspector General, Department of Agriculture (Parts 2600—2699) XXVII Office of Information Resources Management, Department of Agriculture (Parts 2700—2799) XXVIII Office of Operations, Department of Agriculture (Parts 2800— 2899) XXIX Office of Energy, Department of Agriculture (Parts 2900—2999) XXX Office of the Chief Financial Officer, Department of Agriculture (Parts 3000—3099) XXXI Office of Environmental Quality, Department of Agriculture (Parts 3100—3199) XXXII Office of Procurement and Property Management, Department of Agriculture (Parts 3200—3299) XXXIII Office of Transportation, Department of Agriculture (Parts 3300—3399) XXXIV Cooperative State Research, Education, and Extension Service, Department of Agriculture (Parts 3400—3499) XXXV Rural Housing Service, Department of Agriculture (Parts 3500— 3599) XXXVI National Agricultural Statistics Service, Department of Agri- culture (Parts 3600—3699) XXXVII Economic Research Service, Department of Agriculture (Parts 3700—3799) XXXVIII World Agricultural Outlook Board, Department of Agriculture (Parts 3800—3899) XLI [Reserved] XLII Rural Business-Cooperative Service and Rural Utilities Service, Department of Agriculture (Parts 4200—4299)

Title 8—Aliens and Nationality

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

Title 9—Animals and Animal Products

I Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 1—199) II Grain Inspection, Packers and Stockyards Administration (Packers and Stockyards Programs), Department of Agri- culture (Parts 200—299) III Food Safety and Inspection Service, Department of Agriculture (Parts 300—599)

Title 10—Energy

I Nuclear Regulatory Commission (Parts 0—199) II Department of Energy (Parts 200—699)

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III Department of Energy (Parts 700—999) X Department of Energy (General Provisions) (Parts 1000—1099) XVII Defense Nuclear Facilities Safety Board (Parts 1700—1799) XVIII Northeast Interstate Low-Level Radioactive Waste Commission (Part 1800)

Title 11—Federal Elections

I Federal Election Commission (Parts 1—9099)

Title 12—Banks and Banking

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

Title 13—Business Credit and Assistance

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

Title 14—Aeronautics and Space

I Federal Aviation Administration, Department of Transportation (Parts 1—199) II Office of the Secretary, Department of Transportation (Aviation Proceedings) (Parts 200—399)

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III Commercial Space Transportation, Federal Aviation Adminis- tration, Department of Transportation (Parts 400—499) V National Aeronautics and Space Administration (Parts 1200— 1299) VI Air Transportation System Stabilization (Parts 1300—1399)

Title 15—Commerce and Foreign Trade

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

Title 16—Commercial Practices

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

Title 17—Commodity and Securities Exchanges

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

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

Title 19—Customs Duties

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

Title 20—Employees’ Benefits

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

Title 21—Food and Drugs

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

Title 22—Foreign Relations

I Department of State (Parts 1—199) II Agency for International Development (Parts 200—299) III Peace Corps (Parts 300—399)

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

Title 23—Highways

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

Title 24—Housing and Urban Development

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO HOUSING AND URBAN DE- VELOPMENT I Office of Assistant Secretary for Equal Opportunity, Department of Housing and Urban Development (Parts 100—199) II Office of Assistant Secretary for Housing-Federal Housing Com- missioner, Department of Housing and Urban Development (Parts 200—299) III Government National Mortgage Association, Department of Housing and Urban Development (Parts 300—399) IV Office of Housing and Office of Multifamily Housing Assistance Restructuring, Department of Housing and Urban Develop- ment (Parts 400—499) V Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 500—599) VI Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 600—699) [Reserved]

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VII Office of the Secretary, Department of Housing and Urban Devel- opment (Housing Assistance Programs and Public and Indian Housing Programs) (Parts 700—799) VIII Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Section 8 Housing Assistance Programs, Section 202 Di- rect Loan Program, Section 202 Supportive Housing for the El- derly Program and Section 811 Supportive Housing for Persons With Disabilities Program) (Parts 800—899) IX Office of Assistant Secretary for Public and Indian Housing, De- partment of Housing and Urban Development (Parts 900—1699) X Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Interstate Land Sales Registration Program) (Parts 1700—1799) XII Office of Inspector General, Department of Housing and Urban Development (Parts 2000—2099) XX Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Parts 3200—3899) XXV Neighborhood Reinvestment Corporation (Parts 4100—4199)

Title 25—Indians

I Bureau of Indian Affairs, Department of the Interior (Parts 1— 299) II Indian Arts and Crafts Board, Department of the Interior (Parts 300—399) III National Indian Gaming Commission, Department of the Inte- rior (Parts 500—599) IV Office of Navajo and Hopi Indian Relocation (Parts 700—799) V Bureau of Indian Affairs, Department of the Interior, and Indian Health Service, Department of Health and Human Services (Part 900) VI Office of the Assistant Secretary-Indian Affairs, Department of the Interior (Parts 1000—1199) VII Office of the Special Trustee for American Indians, Department of the Interior (Part 1200)

Title 26—Internal Revenue

I Internal Revenue Service, Department of the Treasury (Parts 1— 899)

Title 27—Alcohol, Tobacco Products and Firearms

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

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

Title 29—Labor

SUBTITLE A—OFFICE OF THE SECRETARY OF LABOR (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO LABOR I National Labor Relations Board (Parts 100—199) II Office of Labor-Management Standards, Department of Labor (Parts 200—299) III National Railroad Adjustment Board (Parts 300—399) IV Office of Labor-Management Standards, Department of Labor (Parts 400—499) V Wage and Hour Division, Department of Labor (Parts 500—899) IX Construction Industry Collective Bargaining Commission (Parts 900—999) X National Mediation Board (Parts 1200—1299) XII Federal Mediation and Conciliation Service (Parts 1400—1499) XIV Equal Employment Opportunity Commission (Parts 1600—1699) XVII Occupational Safety and Health Administration, Department of Labor (Parts 1900—1999) XX Occupational Safety and Health Review Commission (Parts 2200—2499) XXV Employee Benefits Security Administration, Department of Labor (Parts 2500—2599) XXVII Federal Mine Safety and Health Review Commission (Parts 2700—2799) XL Pension Benefit Guaranty Corporation (Parts 4000—4999)

Title 30—Mineral Resources

I Mine Safety and Health Administration, Department of Labor (Parts 1—199) II Minerals Management Service, Department of the Interior (Parts 200—299) III Board of Surface Mining and Reclamation Appeals, Department of the Interior (Parts 300—399)

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IV Geological Survey, Department of the Interior (Parts 400—499) VII Office of Surface Mining Reclamation and Enforcement, Depart- ment of the Interior (Parts 700—999)

Title 31—Money and Finance: Treasury

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

Title 32—National Defense

SUBTITLE A—DEPARTMENT OF DEFENSE I Office of the Secretary of Defense (Parts 1—399) V Department of the Army (Parts 400—699) VI Department of the Navy (Parts 700—799) VII Department of the Air Force (Parts 800—1099) SUBTITLE B—OTHER REGULATIONS RELATING TO NATIONAL DE- FENSE XII Defense Logistics Agency (Parts 1200—1299) XVI Selective Service System (Parts 1600—1699) XVIII National Counterintelligence Center (Parts 1800—1899) XIX Central Intelligence Agency (Parts 1900—1999) XX Information Security Oversight Office, National Archives and Records Administration (Parts 2000—2099) XXI National Security Council (Parts 2100—2199) XXIV Office of Science and Technology Policy (Parts 2400—2499) XXVII Office for Micronesian Status Negotiations (Parts 2700—2799) XXVIII Office of the Vice President of the United States (Parts 2800— 2899)

Title 33—Navigation and Navigable Waters

I Coast Guard, Department of Homeland Security (Parts 1—199) II Corps of Engineers, Department of the Army (Parts 200—399)

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IV Saint Lawrence Seaway Development Corporation, Department of Transportation (Parts 400—499)

Title 34—Education

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

Title 35—Panama Canal

I Panama Canal Regulations (Parts 1—299)

Title 36—Parks, Forests, and Public Property

I National Park Service, Department of the Interior (Parts 1—199) II Forest Service, Department of Agriculture (Parts 200—299) III Corps of Engineers, Department of the Army (Parts 300—399) IV American Battle Monuments Commission (Parts 400—499) V Smithsonian Institution (Parts 500—599) VII Library of Congress (Parts 700—799) VIII Advisory Council on Historic Preservation (Parts 800—899) IX Pennsylvania Avenue Development Corporation (Parts 900—999) X Presidio Trust (Parts 1000—1099) XI Architectural and Transportation Barriers Compliance Board (Parts 1100—1199) XII National Archives and Records Administration (Parts 1200—1299) XV Oklahoma City National Memorial Trust (Part 1501) XVI Morris K. Udall Scholarship and Excellence in National Environ- mental Policy Foundation (Parts 1600—1699)

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I United States Patent and Trademark Office, Department of Commerce (Parts 1—199) II Copyright Office, Library of Congress (Parts 200—299) IV Assistant Secretary for Technology Policy, Department of Com- merce (Parts 400—499) V Under Secretary for Technology, Department of Commerce (Parts 500—599)

Title 38—Pensions, Bonuses, and Veterans’ Relief

I Department of Veterans Affairs (Parts 0—99)

Title 39—Postal Service

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

Title 40—Protection of Environment

I Environmental Protection Agency (Parts 1—1099) IV Environmental Protection Agency and Department of Justice (Parts 1400—1499) V Council on Environmental Quality (Parts 1500—1599) VI Chemical Safety and Hazard Investigation Board (Parts 1600— 1699) VII Environmental Protection Agency and Department of Defense; Uniform National Discharge Standards for Vessels of the Armed Forces (Parts 1700—1799)

Title 41—Public Contracts and Property Management

SUBTITLE B—OTHER PROVISIONS RELATING TO PUBLIC CONTRACTS 50 Public Contracts, Department of Labor (Parts 50–1—50–999) 51 Committee for Purchase From People Who Are Blind or Severely Disabled (Parts 51–1—51–99) 60 Office of Federal Contract Compliance Programs, Equal Employ- ment Opportunity, Department of Labor (Parts 60–1—60–999) 61 Office of the Assistant Secretary for Veterans’ Employment and Training Service, Department of Labor (Parts 61–1—61–999) SUBTITLE C—FEDERAL PROPERTY MANAGEMENT REGULATIONS SYSTEM 101 Federal Property Management Regulations (Parts 101–1—101–99) 102 Federal Management Regulation (Parts 102–1—102–299) 105 General Services Administration (Parts 105–1—105–999) 109 Department of Energy Property Management Regulations (Parts 109–1—109–99) 114 Department of the Interior (Parts 114–1—114–99) 115 Environmental Protection Agency (Parts 115–1—115–99)

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128 Department of Justice (Parts 128–1—128–99) SUBTITLE D—OTHER PROVISIONS RELATING TO PROPERTY MANAGE- MENT [RESERVED] SUBTITLE E—FEDERAL INFORMATION RESOURCES MANAGEMENT REGULATIONS SYSTEM 201 Federal Information Resources Management Regulation (Parts 201–1—201–99) [Reserved] SUBTITLE F—FEDERAL TRAVEL REGULATION SYSTEM 300 General (Parts 300–1—300–99) 301 Temporary Duty (TDY) Travel Allowances (Parts 301–1—301–99) 302 Relocation Allowances (Parts 302–1—302–99) 303 Payment of Expenses Connected with the Death of Certain Em- ployees (Part 303–70) 304 Payment of Travel Expenses from a Non-Federal Source (Parts 304–1—304–99)

Title 42—Public Health

I Public Health Service, Department of Health and Human Serv- ices (Parts 1—199) IV Centers for Medicare & Medicaid Services, Department of Health and Human Services (Parts 400—499) V Office of Inspector General-Health Care, Department of Health and Human Services (Parts 1000—1999)

Title 43—Public Lands: Interior

SUBTITLE A—OFFICE OF THE SECRETARY OF THE INTERIOR (PARTS 1—199) SUBTITLE B—REGULATIONS RELATING TO PUBLIC LANDS I Bureau of Reclamation, Department of the Interior (Parts 200— 499) II Bureau of Land Management, Department of the Interior (Parts 1000—9999) III Utah Reclamation Mitigation and Conservation Commission (Parts 10000—10010)

Title 44—Emergency Management and Assistance

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

Title 45—Public Welfare

SUBTITLE A—DEPARTMENT OF HEALTH AND HUMAN SERVICES (PARTS 1—199) SUBTITLE B—REGULATIONS RELATING TO PUBLIC WELFARE

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II Office of Family Assistance (Assistance Programs), Administra- tion for Children and Families, Department of Health and Human Services (Parts 200—299) III Office of Child Support Enforcement (Child Support Enforce- ment Program), Administration for Children and Families, Department of Health and Human Services (Parts 300—399) IV Office of Refugee Resettlement, Administration for Children and Families, Department of Health and Human Services (Parts 400—499) V Foreign Claims Settlement Commission of the United States, Department of Justice (Parts 500—599) VI National Science Foundation (Parts 600—699) VII Commission on Civil Rights (Parts 700—799) VIII Office of Personnel Management (Parts 800—899) X Office of Community Services, Administration for Children and Families, Department of Health and Human Services (Parts 1000—1099) XI National Foundation on the Arts and the Humanities (Parts 1100—1199) XII Corporation for National and Community Service (Parts 1200— 1299) XIII Office of Human Development Services, Department of Health and Human Services (Parts 1300—1399) XVI Legal Services Corporation (Parts 1600—1699) XVII National Commission on Libraries and Information Science (Parts 1700—1799) XVIII Harry S. Truman Scholarship Foundation (Parts 1800—1899) XXI Commission on Fine Arts (Parts 2100—2199) XXIII Arctic Research Commission (Part 2301) XXIV James Madison Memorial Fellowship Foundation (Parts 2400— 2499) XXV Corporation for National and Community Service (Parts 2500— 2599)

Title 46—Shipping

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

Title 47—Telecommunication

I Federal Communications Commission (Parts 0—199) II Office of Science and Technology Policy and National Security Council (Parts 200—299)

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III National Telecommunications and Information Administration, Department of Commerce (Parts 300—399)

Title 48—Federal Acquisition Regulations System

1 Federal Acquisition Regulation (Parts 1—99) 2 Department of Defense (Parts 200—299) 3 Department of Health and Human Services (Parts 300—399) 4 Department of Agriculture (Parts 400—499) 5 General Services Administration (Parts 500—599) 6 Department of State (Parts 600—699) 7 United States Agency for International Development (Parts 700—799) 8 Department of Veterans Affairs (Parts 800—899) 9 Department of Energy (Parts 900—999) 10 Department of the Treasury (Parts 1000—1099) 12 Department of Transportation (Parts 1200—1299) 13 Department of Commerce (Parts 1300—1399) 14 Department of the Interior (Parts 1400—1499) 15 Environmental Protection Agency (Parts 1500—1599) 16 Office of Personnel Management, Federal Employees Health Benefits Acquisition Regulation (Parts 1600—1699) 17 Office of Personnel Management (Parts 1700—1799) 18 National Aeronautics and Space Administration (Parts 1800— 1899) 19 Broadcasting Board of Governors (Parts 1900—1999) 20 Nuclear Regulatory Commission (Parts 2000—2099) 21 Office of Personnel Management, Federal Employees Group Life Insurance Federal Acquisition Regulation (Parts 2100—2199) 23 Social Security Administration (Parts 2300—2399) 24 Department of Housing and Urban Development (Parts 2400— 2499) 25 National Science Foundation (Parts 2500—2599) 28 Department of Justice (Parts 2800—2899) 29 Department of Labor (Parts 2900—2999) 30 Department of Homeland Security, Homeland Security Acquisi- tion Regulation (HSAR) (Parts 3000—3099) 34 Department of Education Acquisition Regulation (Parts 3400— 3499) 35 Panama Canal Commission (Parts 3500—3599) 44 Federal Emergency Management Agency (Parts 4400—4499) 51 Department of the Army Acquisition Regulations (Parts 5100— 5199) 52 Department of the Navy Acquisition Regulations (Parts 5200— 5299) 53 Department of the Air Force Federal Acquisition Regulation Supplement (Parts 5300—5399)

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54 Defense Logistics Agency, Department of Defense (Parts 5400— 5499) 57 African Development Foundation (Parts 5700—5799) 61 General Services Administration Board of Contract Appeals (Parts 6100—6199) 63 Department of Transportation Board of Contract Appeals (Parts 6300—6399) 99 Cost Accounting Standards Board, Office of Federal Procure- ment Policy, Office of Management and Budget (Parts 9900— 9999)

Title 49—Transportation

SUBTITLE A—OFFICE OF THE SECRETARY OF TRANSPORTATION (PARTS 1—99) SUBTITLE B—OTHER REGULATIONS RELATING TO TRANSPORTATION I Research and Special Programs Administration, Department of Transportation (Parts 100—199) II Federal Railroad Administration, Department of Transportation (Parts 200—299) III Federal Motor Carrier Safety Administration, Department of Transportation (Parts 300—399) IV Coast Guard, Department of Homeland Security (Parts 400—499) V National Highway Traffic Safety Administration, Department of Transportation (Parts 500—599) VI Federal Transit Administration, Department of Transportation (Parts 600—699) VII National Railroad Passenger Corporation (AMTRAK) (Parts 700—799) VIII National Transportation Safety Board (Parts 800—999) X Surface Transportation Board, Department of Transportation (Parts 1000—1399) XI Bureau of Transportation Statistics, Department of Transpor- tation (Parts 1400—1499) XII Transportation Security Administration, Department of Home- land Security (Parts 1500—1599)

Title 50—Wildlife and Fisheries

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

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V Marine Mammal Commission (Parts 500—599) VI Fishery Conservation and Management, National Oceanic and Atmospheric Administration, Department of Commerce (Parts 600—699)

CFR Index and Finding Aids

Subject/Agency Index List of Agency Prepared Indexes Parallel Tables of Statutory Authorities and Rules List of CFR Titles, Chapters, Subchapters, and Parts Alphabetical List of Agencies Appearing in the CFR

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

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2001 2003 32 CFR 66 FR 32 CFR 68 FR Page Page Chapter VI Chapter VI 701.118 (v) and (w) added ...... 54928 700.405 (c)(9) amended; (c)(10) 706.2 Table Three amended...... 53523 added; (d)(3) revised...... 2697 Table Four amended ...... 53524 700.505 (b)(5) redesignated as Table Five amended ...... 53533 (b)(6); new (b)(5) added ...... 2697 Tables Four and Five amended 700.701 (a) revised ...... 2697 .... 53525, 53526, 53527, 53530, 53531, 53532 700.1053 (a) revised...... 2697 Tables Two and Five amended ...... 53528 Table Two amended ...... 53529 701.118 (n) revised...... 43461 Regulation at 66 FR 53528 eff. 706.2 Table Four amended ...... 5827–5832, date corrected...... 56383 68513 Table Five amended...... 5828, 5830–5832, 2002 68517 32 CFR 67 FR Tables Four and Five amended Page ...... 68512, 68515 Chapter VI Tables Two and Five amended ...... 68514 701.118 (p) removed...... 30554 Table Two amended...... 68516 706.2 Tables Four and Five amended...... 18486–18489, 18491, 18492 2004 Table Five amended ...... 18490 (Regulations published from January 1, Table Four amended ...... 30804, 30805 2004 through July 1, 2004) 776.20 Revised ...... 70165 776.53 (a)(4) revised ...... 70165

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32 CFR 69 FR 32 CFR—Continued 69 FR Page Page Chapter VI—Continued Chapter VI 752.5 (b) amended ...... 20542 719.115 (b)(2) revised...... 20540 775.1 Revised ...... 8109 725.6 (c)(1) revised ...... 20541 775.2 Revised ...... 8109 727.5 Revised ...... 20541 775.3 Revised ...... 8109 752.2 (a) amended ...... 20542 775.4 Revised ...... 8109 752.3 (a) amended ...... 20542 775.6 (a), (b), (e) and (f) revised...... 8110 752.4 (a) and (c) amended ...... 20542 775.12 Revised ...... 8112 Æ

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