Subchapter C—Personnel, Military and Civilian

§ 40.1 32 CFR Ch. I (7–1–97 Edition) SUBCHAPTER C—PERSONNEL, MILITARY AND CIVILIAN

CROSS REFERENCE: For a revision of Standards for a Merit System of Personnel Administra- tion, see 5 CFR part 900.

PART 40—STANDARDS OF from outside sources, gifts between em- CONDUCT CROSS-REFERENCES ployees, conflicting financial interests, impartiality in performing official du- Sec. ties, seeking other employment, mis- 40.1 18 U.S.C. 208(b) waivers. use of position, and outside activities. 40.2 Cross-reference to Standards of Ethical Conduct for Employees of the Executive § 40.3 Cross-reference to Financial Dis- Branch. closure, Qualified Trusts, and Cer- 40.3 Cross-reference to Financial Disclo- tificates of Divestiture for Execu- sure, Qualified Trusts, and Certificates of tive Branch Employees. Divestiture for Executive Branch Em- DoD employees should refer to the ployees. OGE regulation, Financial Disclosure, 40.4 Cross-reference to Limitations on Out- side Employment and Prohibition of Qualified Trusts, and Certificates of Honoraria; Confidential Reporting of Divestiture for Executive Branch Em- Payments to Charities in Lieu of Hono- ployees, 5 CFR part 2634, for financial raria. disclosure provisions. 40.5 Cross-reference to Regulations Con- cerning Post-Employment Conflict of In- § 40.4 Cross-reference to Limitations terest. on Outside Employment and Prohi- 40.6 Cross-reference to Office of Govern- bition of Honoraria; Confidential ment Ethics and Executive Agency Eth- Reporting of Payments to Charities ics Program Responsibilities. in Lieu of Honoraria. 40.7 Cross-reference to Post-Employment DoD employees should refer to the Conflict of Interest Restrictions. OGE regulation, Limitations on Out- AUTHORITY: 5 U.S.C. 7301. side Employment and Prohibition of SOURCE: 58 FR 47624, Sept. 10, 1993, unless Honoraria; Confidential Reporting of otherwise noted. Payments to Charities in Lieu of Hono- raria, 5 CFR part 2636, for provisions on § 40.1 18 U.S.C. 208(b) waivers. outside employment and honoraria. Under 18 U.S.C. 208(b) categories of financial interests may be made non-dis- § 40.5 Cross-reference to Regulations qualifying for purposes of 18 U.S.C. Concerning Post-Employment Con- 208(a) by a general regulation published flict of Interest. in the FEDERAL REGISTER. Shares of a DoD employees and former DoD em- widely held, diversified mutual fund or ployees should refer to the OGE regula- regulated investment company have tion, Regulations Concerning Post-Em- been exempted by a general regulation ployment Conflict of Interest, 5 CFR as being too remote or inconsequential part 2637, for provisions on post-em- to affect the integrity of Government ployment applicable to those who left personnel. DoD employment prior to January 1, 1991. § 40.2 Cross-reference to Standards of Ethical Conduct for Employees of § 40.6 Cross-reference to Office of Gov- the Executive Branch. ernment Ethics and Executive DoD employees should refer to the Agency Ethics Program Respon- Office of Government Ethics (OGE) reg- sibilities. ulation, Standards of Ethical Conduct DoD employees should refer to the for Employees of the Executive Branch, OGE regulation, Office of Government 5 CFR part 2635, and the Department of Ethics and Executive Agency Ethics Defense (DoD) regulation that supple- Program Responsibilities, 5 CFR part ments the OGE regulation, 5 CFR 2638, for provisions establishing execu- 3601.101, for standards of conduct provi- tive branch ethics programs, including sions, including standards for gifts ethics training programs.

74 Office of the Secretary of Defense 40a.1

§ 40.7 Cross-reference to Post-Employ- Agip SPA ment Conflict of Interest Restric- Air Cruisers Co., Inc. tions. Ajax Navigation DoD employees and former DoD em- Aksarben Foods, Inc. ployees should refer the to OGE regula- Al Rashed & Al Orman Co. tion, Post-Employment Conflict of In- Alcatel Network Systems, Inc. terest Restrictions, 5 CFR part 2641, for Alfab Inc. provisions on post-employment appli- Alisud SPA cable to those who left DoD employ- All Star Maintenance A Neveda Corp. ment on or after January 1, 1991. Alliant Techsystems, Inc. Allied Petro, Inc. PART 40a—DEFENSE CONTRACT- Allied Research Corp. AlliedSignal Technical Services ING: REPORTING PROCEDURES AlliedSignal, Inc. ON DEFENSE RELATED EMPLOY- Allison Engine Co., Inc. MENT Alpha Marine Services, Inc. Altama Delta Corp. AUTHORITY: 10 U.S.C. 2397 Amerada Hess Corp. SOURCE: 61 FR 16704, Apr. 17, 1996, unless American Apparel, Inc. otherwise noted. American Engineering Corp. American Housing Technologies 40a.1 Department of Defense contrac- American International Airways tors receiving awards of $10 million American International Contrs or more. American Management Systems Inc. FISCAL YEAR 1995 American President Lines Ltd. American Ship Building Co., Inc. ACS Construction Co. of Mississippi American Systems Corp. AG Marketing Inc. Amerind, Inc. AIL Systems Inc. Ametek, Inc. AAI Corp. Amoco Corp. AAR Manufacturing Inc. Amoco Energy Trading Corp. ABB Environmental Services Amtec Corp. ABB Services Inc. Anadac Inc. ABU Dhabi National Oil Co. Analysis & Technology, Inc. AEL Industries Inc. Analytic Services, Inc. AM General Corp. Analytical Systems Engineering Corp. ARC Professional Services Group Anderson-Tully Co. ASI Systems International AT&T Communications, Inc. Andrulis Research Corp. AT&T Corp. Angelo, H. & Co., Inc. AT&T Global Information Solutions Anixter, Inc. Co. Antares Development Corp. ATG Inc. Applications Generales D’Elect Abacus Technology Corp. Applied Data Technology, Inc. Abbyss Oil Co., Inc. Applied Measurement Systems Actus Corp/Sundt, JV Applied Ordnance Technology Adler & Stern (1968), Ltd. Applied Research Associates, Inc. Adminastar Inc. Aquidneck Management Association, Advanced Electronic Co., Ltd. Ltd. Advance, Inc. Arango Construction Co. Advanced Communications Systems Arcadia Refining & Marketing Advanced Engineering & Technology Arctic Slope Regional Corp. Advanced Integrated Technology Inc. Arinc Inc. Advanced Marine Enterprises Arinc Research Corp. Advanced Resource Technologies Arist Corporation Inc. Advanced Testing Technologies Arnold Truman Co. Aepco, Inc. Artro Contracting Inc. Aerojet-General Corp. Ashland Inc. Aeroquip Corp. Assurance Technology Corp. Aerospace Corp. Atkins, Claude E. Enterprises

75 40a.1 32 CFR Ch. I (7–1–97 Edition)

Atlantic Research Corp. Bozell Jacobs Kenyon Eckhardt Inc. Atlantic Richfield Co. Braswell Services Group Inc. Autec Range Services Brickle, Hyman & Son Inc. Avco Corp. British Aerospace Dynamics Div Avondale Industries, Inc. Brown & Root Services Corp. BBA Equity Inc. Brown & Williamson Tobacco Corp. BBDO Worldwide Inc. Brown, Dayton T., Inc. BDM Federal Inc. Browning Construction Co. BDM International, Inc. Brunswick Corp. BHP Petroleum International PT Buckner & Moore, Inc. BOC Group Inc A Delaware Corp Bulova Corp. BP Chemicals Inc. Burlington Industries, Inc. BP Exploration & Oil Inc. Burns & McDonnell Inc. BTG Inc. Butt Construction Co., Inc. BTG Technology Systems, Inc. Byler, W T Co., Inc. Babcock & Wilcox Co., The CDM Federal Programs Corp. Bachmann Construction, Inc. CACI, Inc. Baker Michael Corp. CAE (US) Inc. Baker Support Services, Inc. CAS, Inc. Balfour Beatty Inc. CBC Enterprises, Inc. Ball Corp. CBI Na-Con, Inc. Baltimore Gas & Electric Co. CFM International Inc. Bank of New York Co., Inc. CH2M Hill Companies, Ltd. Barber-Colman Co. (Del) CIA Espanola De Petroleos SA Bates Worldwide (Delaware) CIC Industries, Inc. Bath Iron Works Corp. CMS Inc. Battelle Memorial Institute CNA Corp. Bay Tankers, Inc. CSC Analytics Inc. Bean, D D & Sons Co. CTA Inc. Bean, C.F. Corp. Caddell Construction Co., Inc. Bechtel Corp. Calibre Systems Inc. Bechtel Environmental Inc. California Microwave, Inc. Bell Atlantic Network Services, Inc. Calspan Advanced Tech Ctr. Bell Atlantic Maryland, Inc. Caltech Service Corp. Bell Atlantic-Virginia Inc. Caltex Petroleum Corp. Bell BCI Co. Camber Corp. Bell Corporation of Rochester Campbell Soup Co. Bell Helicopter Textron, Inc. Capco Inc. Belleville Shoe Manufacturing, Co. Capital Health Services Inc. Beneco Enterprises, Inc. Carnegie Mellon University Beretta USA Corp. Carolina Power & Light Co. Bergen Brunswig Corp. Carothers Construction Inc. Bergen Brunswig Drug Co. Carter, J C Co., Inc. Berliner Elektro Holding Aktie Caterpillar Inc. Betac Corp. Celsius Invest AB Bethlehem Steel Corp. Centennial Contractors Enterprise Big Bear Oil Co., Inc. Centex Bateson Enterprises Inc. Black & Veatch Centex Construction Group Inc. Blake Construction Co., Inc. Centex-Rooney Enterprises, Inc. Boeing Aerospace Operations Central Gulf Lines, Inc. Boeing Company, The Ceridian Corp. Boeing Sikorsky Aircraft Support Cessna Aircraft Co. Boeing Skrsky Comanche Team JV Chamberlain Manufacturing Corp. Boland, David, Inc. Chem-Nuclear Systems, Inc. Bollinger Shipyard Inc. Chemical Waste Management Inc. Bolt Beranek & Newman, Inc. Chemins De Fer Nationaux Du Canada Bombardier International BV Chevron USA, Inc. Booz Allen & Hamilton, Inc. Childers Construction Co. Boro Developers Inc. Chromalloy American Corp.

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Chromalloy Gas Turbine Corp. Day, SW Construction Corp. Chugoku Electric Power Co., Inc. Decision Systems Technologies Cincinnati Bell Information Systems Del-Jen Inc. Cincinnati Electronics Corp. Delaware Systems Engineering Man- Coastal Corp. agement Co. Coastal Government Services Delco Electronics Corp. Colejon/Jones (JV) Denny, J.B., Co. Coleman Research Corp. Detroit Diesel Corp. Colsa, Corp. Detyens Shipyards Inc. Coltec Industries Inc. Deutsche Bundespost Colts Manufacturing Co., Inc. Deutsche Telekom Aktiengesells Comarco, Inc. Diagnostic/Retrieval Systems, Inc. Comil Compagnia Italiana Lavor Diamond Shamrock Refining Market- Communications Products Inc. ing Co. Compania Espanola De Petroleos Digicon Corp. Compex Corp. Digital Equipment Corp. Comptek Federal Systems, Inc. Digital Systems Research, Inc. Comptek Research, Inc. Dillingham/A B B Susa JV Computer Associates International Dow Environmental Inc. Computer Data Systems Inc. Dowty Group Plc Computer Science Applications Draper, Charles Stark Lab Inc. Computer Sciences Corp. Dreadnought Marine, Inc. Computer Sciences Raytheon (JV) Dual, Inc. Computer Systems Development Dutra Construction Co., Inc. Computer Systems International Dynamic Science, Inc. Comsat Corp. Dynamics Corporation of America Conagra, Inc. Dynamics Research Corp. Concurrent Computer Corp. Dyncorp Concurrent Technologies Corp. Dyncorp/Dynair Corp. Condor Systems Inc. Dynetics, Inc. Conoco Inc. E–OIR Measurements Inc. Consolidated Foodservice E–Systems, Inc. Consolidated Services, Inc. EA Engineering & Science Technology Constar L.P. EC III JV Contel Federal Systems Inc. ECS Technologies, Inc. Contrack International, Inc. EER Systems Corp. Contraves Inc. EG&G, Inc. Control Data Systems Inc. EG&G Washington Analytical Services Cordant Holdings Corp. Center Corporation of Mercer University ESI Holding Inc. Corporcion Immbiliaria Textil Eagan McAllister Associates Cortez III Service Corp. Eagle Aviation Inc. Cosmo Oil Co., Ltd. Earl Industries Inc. Cray Research, Inc. Earth Technology Corp, USA Cree Research Inc. Eastern Canvas Products Inc. Crowley American Transport, Inc. Eastern Chemical Products Crowley Maritime Corp. Eastern Computers Inc. Cubic Corp. Eastern General Contractors Cubic Defense Systems Inc. Eastern JBI Joint Venture Cummins Engine Co., Inc. Eastman Chemical Co. Cutler-Hammer Inc. Eastman Kodak Co. Cyprus Amox Coal Co. Ebasco Services, Inc. D&K Construction Co., Inc. Ecology & Environment, Inc. DME Corp. Eldyne, Inc. Dames & Moore Inc. Electro-Methods Inc. Daniel Mann Johnson Mendenhall Electronic Data Systems Corp. Datron Inc. Electronic Warfare Associates Dawson Construction Co. Electronics & Space Corp. Day & Zimmerman, Inc. Electrospace Systems, Inc.

77 40a.1 32 CFR Ch. I (7–1–97 Edition)

Elinpa Elektrik Fugro Consultants International Ellis-Don Construction Ltd. GDE Systems Inc. Engineered Support Systems GE American Communications Engineering & Professional Services GEC Inc. Ensafe/Allen & Hoshall GEC Marconi Electric System Corp. Ensco, Inc. GTE Corp. Entwistle Co., The GTE Government Systems Corp. Envirocare of Utah Inc. Galaxy Scientific Corp. Environmental Chemical Corp. Gaskins, L.C. Construction Co. Environmental Research Institute of General Atomics Michigan General Dynamics Corp. Environmental Science & Engineering General Dynamics Land Systems Environmental Technologies Group General Electric Co. Enzian Technology Inc. General Engineering Corp. Epoch Engineering Inc. General Foods Corp. Equa Industries, Inc. General Mills, Inc. Ericsson Inc. General Motors Corp. Esterline Technologies Corp. General Physics Corp. Exide Electronics Group, Inc. General Research Corp. Exxon Corp. General Scientific Corp. F & M Manufacturing, Inc. Gentex Corp. FKW, Inc. Geo-Centers Inc. FMC Corp. Geo-Marine Inc. FMS Corp. Georgia Technology Research Corp. FN Moteurs SA Giant Industries Inc. FRC International Inc. Gibbs & Cox Inc. Fairchild Aircraft, Inc. Gibraltar, P.R. Inc. Fairchild Industrial Inc. Gichner Systems Group Inc. Fairchild Space & Def Corp. Gilbert Associates Inc. Federal Data Corp. Godot Enterprises Inc. Federal Express Corp. Gold Line Refining, Ltd. Federal Prison Industries Golden Manufacturing Co., Inc. Federal Republic of Germany Goodrich, B.F. Co., The Ferguson-Williams Inc. Goodyear Tire & Rubber Co., The Ficon Corp. Government Systems, Inc. Figgie International Inc. Government Technology Services Finney Co., The Granite Construction Co. Firan USA, Corp. Great Lakes Dredge & Dock Corp. First Aviation Services, Inc. Greenland Contractors I/S Firth Construction Co., Inc. Greenwich Air Services Inc. Fitzpatrick & Associates Inc. Greg Construction Co. Fletcher General, Inc. Grimberg, John C. Co., Inc. Flightsafety International Group Technologies Corp. Flintco Companies, Inc., The Grumman Aerospace Corp. Flir Systems Inc. Grumman Corp. Florida Power & Light Co. Grumman Data Systems Corp. Fluor Corp. Grunley Construction Co., Inc. Force 3 Inc. Gulf Coast Trailing Co. Ford, H.J. Associates, Inc. Halifax Engineering, Inc. Foss Maritime Co. Halliburton Nus Corp. Foster Wheeler USA Corp. Harbert Bill International Construc- Foster-Miller Inc. tion Four Seasons Environmental Harbert International, Inc. Freedom Forge Corp. Hardaway Co., Inc. Frequency Sources Inc. Hardaway Lawson Associates Inc. Frito Lay, Inc. Harper Construction Co. Frontier Engineering, Inc. Harper-Nielsen Construction Co. Fru-Con Construction Corp. Harris Corp. Fuentez Systems Concepts Inc. Harsco Corp.

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Harvard Industries Inc. Inter-National Research Institute Hawaiian Electric Co., Inc. Intergraph Corp. Hazeltine Corp. Intermarine, USA Head, Inc. Intermec Corp. Healthstaffers, Inc. Intermetrics, Inc. Heavy Constructors Inc. International Bridge Corp. Henderson, Jospeh J. & Son Inc. International Business Machines Corp. Hensel Phelps Construction Co. International Data Products Hercules, Inc. International Terminal Operation Co. Hermes Consolidated, Inc. International Computers Tele- Heroux Inc. communication Hewett-Kier Construction Inc. Interop (JV) Kewlett-Packard Co. Interstate Electronics Corp. High Technology Solutions J&E Associates, Inc. Holly Corp. J&J Maintenance, Inc. Honeywell, Inc. J A J Holding Corp. Honolulu Shipyard Inc. JSA Healthcare Corp. Hooks, Mike, Inc. JWK International Corp. Horizons Technology, Inc. Jacobs Engineering Group, Inc. Houston Associates Inc. James, T.L. & Co., Inc. Howden Group America Inc. Jaycor Hughes Aircraft Co. Jersey Central Power & Light Co. Hughes Associates, Inc. Johns Hopkins University Hughes Electronics Corp. Johnson Controls World Services Inc. Hughes Missile Systems Co. Johnson Controls Inc. Hughes Training Inc. Johnson, Al Construction Co. Human Factors Applications Jones, J.A. Construction Co. Hunt Building Corp. Jones, J.A. Inc. Hunt-Wesson Inc. K&F Industries, Inc. Hutchinson Contracting Co. K&M Maintenance Services Hydro-Mill Co. KDI Corp. Hyman George Construction Co. KG Bominflot Bunkergesellschaf I-Net, Inc. KPMG Peat Marwick LLP IBP Inc. Kaiser Aerospace & Electronics Corp. ICI Americas Inc. Kaiser Engineers International IDB Communications Group Inc. Kaman Corp. IIDA, T Contracting Ltd. Kaman Diversified Technology Corp. IIT Research Institute Kaman Sciences Corp. IMCO General Construction Kay & Associates, Inc. IMO Industries Inc. Kearfott Guidance Navigation Corp. INCA Construction Co., Inc. Keco Industries, Inc. IRISS Co. Keller Construction Co., Inc. ISX Corp. Kellogg Sales Co. IT Corp. Kidde Industries Inc. ITT Corp. Kiewit Pacific Co. ITT Federal Services Corp. Kilgallon Construction Co. ITT Federal Services International Kimberly-Clark Corp. Ideker Inc. Kirlin, John J. Ilex Systems Inc. Klee KG/Ske Maintenance/Klee E Industrial Acoustics Co., Inc. Klewin, C.R., Inc. Industrial Data Link Corp. Koch Refining Co., Inc. Information Network Systems Kohly Construction Inc. Information Spectrum, Inc. Kollmorgen Corp. Information Technology Solutions Korea Electric Power Corp. Infotec Development, Inc. Kovatch Mobile Equipment Corp. Innovative Logistics Techniques Kraft Foods Inc. Innovative Technologies Corp. Krause P C & Associates Inc. Institute for Defense Analyses Kremp Lumber Co. Integrated Systems Analysts Kuk Dong Construction Co., Ltd.

79 40a.1 32 CFR Ch. I (7–1–97 Edition)

Kuwait National Petroleum Co., K Malcolm Pirnie Inc. Kyushu Electric Power Co., Inc. Management Consulting & Research L B M Inc. Management Consulting Inc. LTV Aerospace & Defense, Co. Manson Construction & Engineering Laguna Industries, Inc. Co. Laidlaw Environmental Services Mansour General Dynamics, Ltd. Lake Shore, Inc. Mantech International Corp. Lane Construction Corp. Mantech Systems Engineering Lanthier, R.J. Co., Inc. Manufacturing Technology, Inc. Law Environmental, Inc. Marine Investment Co of Del Leland Electrosystems, Inc. Marisco Ltd. Libby Corporation Mark Diversified Inc. Light Helicopter Turbine Engine Co. Martin Marietta Corp. Little, Arthur D. Inc. Martin Marietta Services, Inc. Litton Industries, Inc. Martin Marietta Technologies Litton Systems, Inc. Martin-Baker Aircraft Co., Ltd. Lloyd-Lamont Design Inc. Marvin Engineering Co., Inc. Lobar, Inc. Mason Hanger-Silas Mason Co., WV Lockheed Corp. Mason Technologies Inc. Lockheed Engineering & Sciences Co. Massachusetts Institute of Technology Lokheed Martin Corp. Massachusetts University of Lockheed Missiles & Space Co. Maxwell Laboratories, Inc. Lockheed Sanders, Inc. Mayer Oscar Foods Corp. Locot, Inc. McDonnell Douglas Coml Delta Logicon, Inc. McDonnell Douglas Corporation Logicon R & D Associates McDonnell Douglas Finance Corp. Logistics Services International McDonnell Douglas Helicopter Co. Logistics Management Institute McKesson Corporation (Maryland) Loral Aerospace Corp. McKnight Construction Co., Inc. Loral Corp. McLaughlin Research Corp. Loral Defense Systems Corp. McRae Industries Inc. Loral Electro-Optical Systems Meredith W.B. II., Inc. Loral Fairchild Corp. Metcalf & Eddy, Inc. Loral Federal Systems Co. Metric Systems Corporation Loral Systems Co. Metro Machine Corp. Loral Vought Systems Corp. Metroplex Corp. Loral/Rolm Mil-Spec Corp. Metters Industries, Inc. Lorall Aeronutronic Mevatec Corp. Lord Corp. Michelin Corp. Louisiana Land Exploration, The Micro Star Co., Inc. Lovering Johnson Inc. Mid Eastern Builders Lucas Industries, Inc. Midco Construction Corp. Lucky Goldstar International C. Middleton Aerospace Corp. Luhr Brothers, Inc. Midsco, Inc. Lykes Bros. Steamship Co., Inc. Milcom Systems Corp. MDP Construction Inc. Mills Manufacturing Corp. MVP Joint Venture Miltope Group, Inc. MW Builders Inc. Mine Safety Appliances Co. MAR, Inc. Minnesota Mining & Manufacturing Co. MCC Construction Corp. Mission Research Corp. MCI International Inc. Mitre Corp. MCI Telecommunications Corp. Mobile Oil Corp. MEI Holdings, Inc. Modern Technologies Corp. MEI Technology Corp. Monarch Construction Co. MacGregor (USA) Inc. Montgomery Watson Americas Maden Technology Consulting, Inc. Moog, Inc. Maersk Inc. Morrison Knudsen Corp., Del Corp. Maersk Line, Ltd. Morrison Knudsen Corp., Ohio Corp. Magnavox Electronic Systems Co. Mortenson, M.A., Co.

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Motor Oils Hellas Corinth Refinery Oregon Iron Works, Inc. Motorola Communications & Elec- Osborne Construction Co. tronics, Inc. Oshkosh Truck Corp. Motorola, Inc. Otis Elevator Co. Munro & Co., Inc. Owl International, Inc. Mystech Associates Inc. PRB Associates Inc. NAI Technologies Inc. PW Construction, Inc. NACCO Materials Handling Group PHP Healthcare Corp. NASSCO Holdings Inc. PRC Environmental Management, Inc. NCI Information Systems Inc. PRC, Inc. Nabisco Holdings Corp. Pacer Systems, Inc. Natco Limited Partnership Pacific Architects & Engineers, Inc. Nation, Inc. Pacific Ship Repair & Fabrication National Academy of Sciences, USA Pacific Sierra Research Corp. National Beef Packing Co., LP Pacific Telecom, Inc. National Defense Co., LLC Pacifica Services, Inc. National Technologies Associates Pacificorp Financial Services, Inc. Nato Maintenance & Supply Agency Paramount Petroleum Corp. Navcom Defense Electronics Park Construction Co. Needham Inc. Parker Hannifin Corp. Neosho, Inc. Parsons Engineering—Science Network Equipment Technologies, Inc. Parsons, Ralph M., Co., The New Mexico, State of Patrol Ofisi A S Genel Mud Newimar, S.A. Pearse, Jack F. Newport News Shipbuilding & Drydock Pease Construction Inc. Co. Pemco Aeroplex, Inc. Nichols Research Corp. Pence, Howard W., Inc. Nippon Oil Co., Ltd. Pennsylvania State University Inc. Norfolk Dredging Co. Pepsi-Cola Metro Btlg Co., Inc. Norfolk Ship Repair Inc. Perrow, Wade Construction Inc. Norfolk Shipbuilding & DryDock Corp. Peterson Builders, Inc. North American Mechanical Services Petro Star Inc. North Carolina Department Human Re- Phibro Energy USA, Inc. sources Philip Morris, Inc. North Florida Shipyards, Inc. Phoenix Air Group, Inc. Northeast Construction Co. Physics International Co. Northern Telecom, Ltd. Pilkington PLC Northrop Grumman Corp. Pine Bluff Sand & Gravel Co. Northrop Worldwide Aircraft Services Pioneer U.A.V., Inc. Nova Group, Inc. Piquniq Management Corp. O’Gar-Hess Esnhrdt Armring Co. Pizzagalli Construction Co. OHM Remediation Services Corp. Planning Systems, Inc. OMI Corp. Pneumo Abex Corp. OTC Tracor Aerospace, Inc. Post Telephone & Telegraph Ministry OTC Tracor Applied Sciences Power Conversion Inc. Oasis Aviation, Inc. Praxair Inc. Ocean Shipholdings, Inc. Pride Companies LP Oceaneering International Inc. Pride Industries Inc. Oderbrecht SA Proctor & Gamble Co., The Ogden Allied Services GMBH Proctor & Gamble Distributing Co., Ogden Environmental & Energy Serv- The ices Co. Propper International Inc. Ogden Technology Services Corp. Pueblo of Lagunda Okinawa City Waterworks Pulau Electronics Corp. Okinawa Electric Power Co., Inc. Pulsar Data Systems, Inc. Oklahoma State University QED Systems Inc. Olin Corp. Quaker Oats Co., The Operational Technologies Corp. Quality Research Inc. Orbital Sciences Corp. Questech Service Co.

81 40a.1 32 CFR Ch. I (7–1–97 Edition)

Questech, Inc. Sechan Electronics, Inc. Quintron Corp. Selco, Inc. R&D Maintenance Services Selecttech Services Corp. RJO Enterprises, Inc. Selmon Enterprises, Inc. RWE–DEA Aktiengesellschaft Fue Semcor, Inc. Racal Communications, Inc. Sencom Corp. Radian Corp. Sentel Corp. Radian Inc. Sequa Corp. Rafael U.S.A. Serv-Air Inc. Rail Co. Service Engineering Industries Ram Systems GMBH Sevenson Environmental Services, Inc. Rand Corp. Sharp, George G., Inc. Raytheon Aircraft Corp. Shell Oil Co. Raytheon Co. Shell Petroleum Co., Ltd, The Raytheon Engineers & Constructions Sherikon, Inc. Raytheon Service Co. Shin Cheon Co., Ltd. Reflectone, Inc. Shinil Engineering Co. Ltd Choo Reliable Mechanical Inc. Siemens Aktiengesellschaft Research & Development Labs Sierra Nevada Corp. Research Analysis & Maintenance Sierra Technologies Inc. Reynolds, R.J., Co. Silicon Graphics Inc. Richards, R.P., Inc. Silverton Construction Co. Robbins-Gioia, Inc. Simtec Inc. Rockwell International Corp. Slana Energy Roe Enterprises Inc. Smiths Industries Aerospace Defense Roh Inc. Systems Rolls Royce PLC Smiths Industries PLC Rooney Brothers Co. Snap Contracting Corp. Rosenblatt, M. & Son, Inc. So-Pak-Co Inc. Roxco, Ltd. Societe Herstalienne Pour LA F Royal Maid Association for the Blind Sollitt, George Constr Co., The Ruff, Thomas W. & Co. Soltek of San Diego Rust Engineering & Construction Sonalysts, Inc. Rust Environment & Infrastructure Source Diversified Inc. Rutter-Rex, J.H., MFG. Co., Inc. South Carolina Research Authority Ryan Co., Inc. Southeastern Public Service Authority SFA, Inc. Southern Air Transport, Inc. SAAB Training Systems Southfork Systems, Inc. SCI Technology, Inc. Southwest Airport Services SKF USA, Inc. Southwest Marine, Inc. SRA International Inc. Southwest Mobile Systems Corp. SRI International Southwest Research Institute SRS Technologies, Inc. Southwestern Bell Telephone Co. SSI Services, Inc. Space & Sensors Associates STM Joint Venture Space Applications Corp. Sabreliner Corp. Space Industries International Saco Defense, Inc. Sparta, Inc. Sacramento Coca-Cola Bottling Inc. Sparton Electronics Florida, Inc. San Francisco Drydock, Inc. Spaw Glass Holding Corp. Sanders Engineering Co., Inc. Specialty Group Inc. Saudi Operations & Maintenance Co. Speedy Food Service, Inc. Sauer Inc. Sperry Marine Inc. Schafer, W.J. Associates Inc. Sprint Communications Co. Ltd. Part- Science Applications International nership Corp. Ssangyong Oil Refining Co., Ltd. Scientific Research Corp. Stackpole Corp. Sea Crest Construction Corp. Standard Oil Co., The Sea Land Service, Inc. Stanford Telecommunications Seaward Marine Services Inc. Sterling Software Inc.

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Stevedoring Services of America Tennessee Apparel Corp. Stewart & Stevenson Services, Inc Tennier Industries Inc. Storage Technology Corp. Tetra Tech, Inc. Strong, Bill Enterprises, Inc. Texas Instruments Inc. Suburban Grading & Utility Texas Utilities Co. Suffork Construction Co. Texas—Capital Contractors Inc. Sumaria Systems, Inc. Texcom, Inc. Summa Technology, Inc. Textron Inc. Sun Company, Inc. Therm, Inc. Sun Microsystems Federal Inc. Thermotrex Corp. Sun Microsystems Inc. Thiokol Corp. Sundstrand Corp. Thompson, J Walker Co. Sundt Corp. Tiburon Systems, Inc. Sunkyong, Ltd. Timeplex Federal Systems Inc. Sunrise Balancing Group Titan Corp., The Support Systems Associates Todd Shipyards Corp. Supreme Beef Processors, Inc. Tohoku Electric Power Co., Inc. Sverdrup Civil Inc. Tokyo Electric Power Co., Inc. Sverdrup Technology Inc. Tootsie Roll Industries, Inc. Swank Enterprises Tower Air, Inc. Swinerton & Walberg Co. Tracor Applied Sciences Inc. Sylvest Management System Tracor, Inc. Synectics Corp. Trafalgar House PLC Synoptic Systems Corp. Tramp Group Ltd. Syscon Corp. Trandes Corp. Sysorex Information Systems Trans-tec Services, Inc. System Planning Corp. Translant, Inc. System Resources Corp. Trataros Construction Inc. Systems Control Technology Tri-Cor Industries, Inc. Systems Engineering Solutions Tri-State Design Construction, Inc. Systems Engineering Energy & Man- Trimble Navigation Limited agement Association Inc. Trinity Marine Group Systems Integration & Research Troy Systems Inc. Sytex Inc. Turner Construction Co. T Bear Consolidated Companies Tybrin Corp. T I/Martin Javeling JV U.S. Electrodynamics Inc. TASC Inc. U.S. Hardware Supply Inc. TDS Inc. U.S. Oil & Refining Co. TRW, Inc. UES Inc. Talley Defense Systems, Inc. UNC Holdings, Inc. Talley Manufacturing & Technology URS Consultants Inc. (Del) Inc. Unidyne Corp. Tec-Masters, Inc. Unified Industries, Inc. Techcon Inc. Unisys Corp, Techmatics, Inc. Unisys Corporations Government Technical & Management Services United Defense LP Corp. United International Engineering Technical Product Group Inc. United Native American Telecom Technology Management & Analysis United States Tobacco Co. Corp. United Technologies Corp. Technology Service Corp. Universal Systems & Technology Tecolote Research, Inc. Universal Systems Inc. Tecom, Inc. Universal Technical Resource Services Telecommunication Systems University of California Teleconsult, Inc. University of Dayton, Inc. Teledyne, Inc. University of Illinois Teledyne Industries Inc. University of Southern California Telephonics Corp. University of Texas at Austin Telos Corp. University of Texas at Arlington

83 § 41.1 32 CFR Ch. I (7–1–97 Edition)

Urban General Contractors, Inc. PART 41—ENLISTED User Technology Associates ADMINISTRATIVE SEPARATIONS Utah State University VSE Corp. Sec. Valenzuela Engineering Inc. 41.1 Purpose. Van Ommeren Nederland BV 41.2 Applicability and scope. Vanguard Research, Inc. 41.3 Policy. Varian Associates, Inc. 41.4 Responsibilities. 41.5 Effective date and implementation. Varo, Inc. 41.6 Definitions. Vector Microwave Research Corp. Vector Research Co., Inc. APPENDIX A TO PART 41—STANDARDS AND PROCEDURES Veda, Inc. Veda International Inc. AUTHORITY: 10 U.S.C. 1162, 1163, 1169, 1170, Versar, Inc. 1172, and 1173. Vickers America Holdings Inc. SOURCE: 47 FR 10174, Mar. 9, 1982, unless Vickers Inc. otherwise noted. Vinnell Corp. § 41.1 Purpose. Virtexco Corp. Vitro Corp. This part establishes policies, stand- Vitro Services Corp. ards, and procedures governing the ad- Vitronics Inc. ministrative separation of enlisted members from the Military Services. Vought Aircraft Co. Vredenburg, R.M. & Co. § 41.2 Applicability and scope. Wallenius Ferry AB The provisions of this part apply to Wang Federal, Inc. Office of the Secretary of Defense and Warehouses Services Agency SARL the Military Departments (including Washington Beef, Inc. their reserve components). The term Washington, University of ‘‘Military Services,’’ as used herein, re- Waterman Steamship Corp. fers to the Army, Navy, Air Force and Webb Electric Co. of Fla. Marine Corps. Weeks Marine, Inc. Wellco Enterprises § 41.3 Policy. West Coast Contractors of Nev. (a) It is the policy of the Department Westar Corp. of Defense to promote the readiness of Westinghouse Elect Sys Venture the Military Services by maintaining Westinghouse Electric Corp. high standards of conduct and perform- Westinghouse Norden Systems ance. Separation policy promotes the Weston, Roy F., Inc. readiness of the Military Services by Whitesell-Green Inc. providing an orderly means to: Whiting-Turner Contracting Co., Inc. (1) Ensure that the Military Services Whittaker Corp. are served by individuals capable of Williams International Corp. meeting required standards of duty Wisconsin Physicians Service Insur- performance and discipline; ance (2) Maintain standards of perform- Wolverine World Wide, Inc. ance and conduct through characterization of service in a system that em- Woodward Governor Co. phasizes the importance of honorable Woodward-Clyde Consultants service; Worldcorp, Inc. (3) Achieve authorized force levels Wyle Laboratories and grade distributions; and Xenotechnix Inc. (4) Provide for the orderly adminis- Xerox Corp. trative separation of enlisted personnel Xontech Inc. in a variety of circumstances. Yokosuka City Water Works Bureau (b) DoD separation policy is designed York International Corp. to strengthen the concept that mili- Yonkers Contracting Co. Inc. tary service is a calling different from Zenith Data Systems Corp Del. any civilian occupation.

84 Office of the Secretary of Defense § 41.4

(1) The acquisition of military status, § 41.4 Responsibilities. whether through enlistment or induc- (a) The Secretaries of the Military De- tion, involves a commitment to the partments shall prescribe implementing United States, the service, and one’s documents to ensure that the policies, fellow citizens and servicemembers to standards, and procedures set forth in complete successfully a period of obli- this part are administered in a manner gated service. Early separation for fail- that provides consistency in separation ure to meet required standards of per- policy to the extent practicable in a formance or discipline represents a system that is based on command dis- failure to fulfill that commitment. cretion. The implementing documents (2) Millions of Americans from di- also shall address the following mat- verse backgrounds and with a wide va- ters: riety of aptitudes and attitudes upon (1) Processing goals. The Secretary entering military service have served concerned shall establish processing successfully in the armed forces. It is time goals for the types of administrative separations authorized by this the policy of the Department of De- part. Such goals shall be designed to fense to provide servicemembers with further the efficient administration of the training, motivation, and profes- the armed forces and shall be measured sional leadership that inspires the dedi- from the date of notification to the cated enlisted member to emulate his date of separation. Normally such or her predecessors and peers in meet- goals should not exceed 15 working ing required standards of performance days for the Notification Procedure and discipline. (part 3, section B., appendix A) and 50 (3) The Military Services make a sub- working days for the Administrative stantial investment in training, time, Board Procedure (part 3, section C., ap- equipment, and related expenses when pendix A) Goals for shorter processing persons are enlisted or inducted into times are encouraged, particularly for military service. Separation prior to cases in which expeditious action is completion of an obligated period of likely. Variations may be established service is wasteful because it results in for complex cases or cases in which the loss of this investment and generates a Separation Authority is not located on requirement for increased accession. the same facility as the respondent. The goals, and a program for monitor- Consequently, attrition is an issue of ing effectiveness, shall be set forth in significant concern at all levels of re- the implementing document of the sponsibility within the armed forces. Military Department. Failure to proc- Reasonable efforts should be made to ess an administrative separation with- identify enlisted members who exhibit in the prescribed goal for processing a likelihood for early separation, and times shall not create a bar to separa- to improve their chances for retention tion or characterization. through counseling, retraining, and re- (2) Periodic explanations. The Sec- habilitation prior to initiation of sepa- retary concerned shall prescribe appro- ration proceedings. Enlisted members priate internal procedures for periodic who do not demonstrate potential for explanation to enlisted members of the further military service should be sepa- types of separations, the basis for their rated in order to avoid the high costs issuance, the possible effects of various in terms of pay, administrative efforts, actions upon reenlistment, civilian em- degradation of morale, and substandard ployment, veterans’ benefits, and relat- mission performance that are associ- ed matters, and the effects of 10 U.S.C. ated with retention of enlisted mem- 977 and Pub. L. 97–66, concerning denial bers who do not conform to required of certain benefits to members who fail standards of discipline and perform- to complete at least 2 years of an origi- ance despite efforts at counseling, re- nal enlistment. Such explanation may training, or rehabilitation. be provided in the form of a written fact sheet or similar document. The (c) Standards and procedures for im- periodic explanation shall take place plementation of these policies are set at least each time the provisions of the forth in appendix A to this part. Uniform Code of Military Justice

85 § 41.5 32 CFR Ch. I (7–1–97 Edition)

(UCMJ) are explained pursuant to Arti- § 41.6 Definitions. cle 137 of the UCMJ. The requirement (a) Member. An enlisted member of a that the effects of the various types of Military Service. separations be explained to enlisted members is a command responsibility, (b) Discharge. Complete severance not a procedural entitlement. Failure from all military status gained by the on the part of the member to receive or enlistment or induction concerned. to understand such explanation does (c) Release from active duty. Termi- not create a bar to separation or char- nation of active duty status and trans- acterization. fer or reversion to a reserve component (3) Provision of information during sep- not on active duty, including transfer aration processing. The Secretary con- to the Individual Ready Reserve (IRR). cerned shall ensure that information (d) Separation. A general term which concerning the purpose and authority includes discharge, release from active of the Discharge Review Board and the duty, release from custody and control Board for Correction of Military/Naval of the armed forces, transfer to the Records, established under 10 U.S.C. IRR, and similar changes in active or 1552 and 1553 and 32 CFR part 70 (DoD reserve status. Directive 1332.28) is provided during the (e) Military record. An individual’s separation processing of all members, overall performance while a member of except when the separation is for the a Military Service, including personal purpose of an immediate reenlistment. conduct and performance of duty. Specific counseling is required under 38 (f) Separation Authority. An official U.S.C. 3103(a) which states that a dis- authorized by the Secretary concerned charge under other than honorable con- to take final action with respect to a ditions, resulting from a period of con- specified type of separation. tinuous, unauthorized absence of 180 (g) Convening Authority. (1) The Sepa- days or more, is a conditional bar to ration Authority or (2) a commanding benefits administered by the Veterans officer who has been authorized by the Administration, notwithstanding any Secretary concerned to process the action by a Discharge Review Board. case except for final action and who The information required by this para- otherwise has the qualifications to act graph should be provided in the form of as a Separation Authority. a written fact sheet or similar docu- (h) Respondent. A member of a Mili- ment. Failure on the part of the mem- tary Service who has been notified that ber to receive or to understand such explanation does not create a bar to sepa- action has been initiated to separate ration or characterization. the member. (b) The Assistant Secretary of Defense (i) Entry level status. The first 180 (Manpower, Reserve Affairs, and Logis- days of continuous active military tics) may modify or supplement the en- service. For members of a reserve com- closures to this Directive, and may del- ponent who have not completed 180 egate the authority to establish report- days of continuous active military ing requirements for the reasons for service and who are not on active duty, separation (part 1, appendix A) to a entry level status begins upon enlist- Deputy Assistant Secretary. ment in a reserve component (including a period of assignment to a delayed § 41.5 Effective date and implementa- entry program) and terminates 180 tion. days after beginning an initial period (a) This part applies only to adminis- of entry level active duty training. For trative separation proceedings initi- purposes of characterization of service ated on or after October 1, 1982. or description of separation, the mem- (b) Part 41, effective December 29, ber’s status is determined by the date 1976 shall continue to be used for ad- of notification as to the initiation of ministrative separation proceedings separation proceedings. initiated on or before September 30, 1982.

86 Office of the Secretary of Defense Pt. 41, App. A

APPENDIX A TO PART 41—STANDARDS 3. Procedures AND PROCEDURES J. Alcohol Abuse Rehabilitation Failure 1. Basis Table of Contents 2. Characterization or description 3. Procedures PART 1—REASONS FOR SEPARATION K. Misconduct A. Expiration of Service Obligation 1. Basis 1. Basis a. Reasons 2. Characterization or description b. Reporting B. Selected Changes in Service Obligations c. Related separations 1. Basis 2. Counseling and rehabilitation 2. Characterization or description 3. Characterization or description C. Convenience of the Government 4. Procedures 1. Basis L. Separation in Lieu of Trial by Court-Martial 2. Characterization or description 1. Basis 3. Procedures 2. Characterization or description 4. Reasons 3. Procedures a. Early release to further education M. Security b. Early release to accept public office 1. Basis c. Dependency or hardship 2. Characterization or description d. Pregnancy or childbirth N. Unsatisfactory Participation in the Ready e. Parenthood Reserves f. Conscientious objection 1. Basis g. Surviving family member 2. Characterization or description h. Other designated physical or mental 3. Procedures conditions O. Secretarial Plenary Authority i. Additional grounds 1. Basis D. Disability 2. Characterization or description 1. Basis 3. Procedures 2. Characterization or description P. Reasons Established by the Military Depart- 3. Procedures ment E. Defective Enlistments and Inductions 1. Basis 1. Minority 2. Counseling and rehabilitation a. Basis 3. Characterization or description (1) Under age 17 4. Procedures (2) Age 17 b. Description of separation PART 2—GUIDELINES ON SEPARATION AND c. Procedure CHARACTERIZATION 2. Erroneous A. Separation a. Basis 1. Scope b. Characterization or description 2. Guidance c. Procedure 3. Limitations on separation actions 3. Defective enlistment agreements B. Suspension of Separation a. Basis 1. Suspension b. Characterization or description 2. Action during the period of suspension c. Procedures C. Characterization of Service or Description of 4. Fraudulent entry into military service Separation a. Basis 1. Types of characterization or description b. Characterization or description 2. Characterization of service c. Procedures a. General considerations F. Entry Level Performance and Conduct b. Types of characterization 1. Basis 2. Counseling and rehabilitation (1) Honorable 3. Description of separation (2) General (under honorable conditions) 4. Procedures (3) Under Other Than Honorable G. Unsatisfactory Performance Conditions 1. Basis c. Limitations on characterization 2. Counseling and rehabilitation 3. Uncharacterized separations 3. Characterization or description a. Entry Level Separation 4. Procedures b. Void enlistments or inductions H. Homosexuality c. Dropping from the rolls 1. Basis PART 3—PROCEDURES FOR SEPARATION 2. Characterization or description 3. Procedures A. Scope I. Drug Abuse Rehabilitation Failure B. Notification Procedure 1. Basis 1. Notice 2. Characterization or description 2. Additional notice requirements

87 Pt. 41, App. A 32 CFR Ch. I (7–1–97 Edition)

3. Response a. General demobilization or reduction in 4. Separation Authority authorized strength. C. Administrative Board Procedure b. Early separation of personnel under a 1. Notice program established by the Secretary con- 2. Additional notice requirements cerned. A copy of the document authorizing 3. Response such program shall be forwarded to the As- 4. Waiver sistant Secretary of Defense (Manpower, Re- 5. Hearing procedure serve Affairs, and Logistics (ASD(MRA&L)) a. Composition on or before the date of implementation. b. Presiding officer c. Acceptance of an active duty commis- c. Witnesses sion or appointment, or acceptance into a d. Record of proceedings program leading to such a commission or ap- e. Presentation of evidence pointment in any branch of the Military f. Rights of the respondents Services. g. Findings and recommendations d. Immediate enlistment or reenlistment. (1) Retention or separation e. Interservice transfer of inactive reserves (2) Suspension or separation in accordance with DoD Directive 1205.5. (3) Characterization of service or descrip- 2. Characterization or description. Honorable, tion of separation (4) Transfer to the Ready Reserves unless: 6. Separation Authority a. An Entry Level Separation is required D. Additional Provisions Concerning Members under section C. of part 2; Confined by Civil Authorities b. Characterization of service as General E. Additional Requirements for Certain Mem- (under honorable conditions) is warranted bers of Reserve Components under section C. of part 2 on the basis of nu- 1. Members of reserve components not on ac- merical scores accumulated in a formal, tive duty service-wide rating system that evaluates 2. Tranfer to the IRR conduct and performance on a regular basis; F. Additional Requirements for Members beyond or Military Control by Reason of Unauthorized c. Another characterization is warranted Absence upon discharge from the IRR under section 1. Determination of applicability E. of part 3. 2. Notice C. Convenience of the Government. 1. Basis. A 3. Members of reserve components member may be separated for convenience of the government for the reasons set forth in PART 1—REASONS FOR SEPARATION subsection C.4., below. A. Expiration of Service Obligation. 1. Basis. 2. Characterization or description. Honorable, A member may be separated upon expiration unless: of enlistment or fulfillment of service obliga- a. An Entry Level Separation is required tion. This includes separation authorized by under section C. of part 2; or the Secretary concerned when the member is b. Characterization of service as General within 30 days of the date of expiration of (under honorable conditions) is warranted term of service under the following cir- under section C. of part 2. cumstances: 3. Procedures. Procedural requirements a. The member is serving outside the con- may be established by the Secretary continental United States (CONUS); or cerned, subject to procedures established in b. The member is a resident of a State, ter- subsection C.4., below. Prior to characteriza- ritory, or possession outside CONUS and is tion of service as General (under honorable serving outside the member’s State, terri- conditions), the member shall be notified of tory, or possession of residence. the specific factors in the service record that 2. Characterization or description. Honorable, warrant such a characterization, and the No- unless: tification Procedure (section B. of part 3) a. An Entry Level Separation is required shall be used. Such notice and procedure is under subsection C.3. of part 2; not required, however, when characteriza- b. Characterization of service as General tion of service as General (under honorable (under honorable conditions) is warranted conditions) is based upon numerical scores under section C. of part 2 on the basis of nu- accumulated in a formal, service-wide rating merical scores accumulated in a formal, system that evaluates conduct and perform- Service-wide rating system that evaluates ance on a regular basis. conduct and performance on a regular basis; 4. Reasons. a. Early release to further edu- or cation. A member may be separated under c. Another characterization is warranted DoD Directive 1332.15 to attend a college, upon discharge from the IRR under section university, vocational school, or technical E. of part 3. school. B. Selected Changes in Service Obligations. 1. b. Early release to accept public office. A Basis. A member may be separated for the member may be separated to accept public following reasons: office only under circumstances authorized

88 Office of the Secretary of Defense Pt. 41, App. A by the Military Department concerned and (2) Separation processing may not be initi- consistent with DoD Directive 1344.10. ated until the member has been counseled c. Dependency or hardship. (1) Upon request formally concerning deficiencies and has of the member and concurrence of the gov- been afforded an opportunity to overcome ernment, separation may be directed when those deficiencies as reflected in appropriate genuine dependency or undue hardship exists counseling or personnel records. under the following circumstances: (3) Separation on the basis of personality (a) The hardship or dependency is not tem- disorder is authorized only if a diagnosis by porary; a psychiatrist or psychologist, completed in (b) Conditions have arisen or have been ag- accordance with procedures established by gravated to an excessive degree since entry the Military Department concerned, con- into the Service, and the member has made cludes, that the disorder is so severe that the every reasonable effort to remedy the situa- member’s ability to function effectively in tion; the military environment is significantly (c) The administrative separation will impaired. eliminate or materially alleviate the condi- (4) Separation for personality disorder is tion; and not appropriate when separation is war- (d) There are no other means of alleviation ranted under sections A. through N. or sec- reasonably available. tion P. of this part. For example, if separa- (2) Undue hardship does not necessarily tion is warranted on the basis of unsatisfac- exist solely because of altered present or ex- tory performance (section G.) or misconduct pected income, family separation, or other (section K.), the member should not be sepa- inconveniences normally incident to Mili- rated under this section regardless of the ex- tary Service. istence of a personality disorder. d. Pregnancy or childbirth. A female mem- (5) Nothing in this provision precludes sep- ber may be separated on the basis of preg- aration of a member who has such a condi- nancy or childbirth upon her request, unless tion under any other basis set forth under retention is determined to be in the best in- this section (Convenience of the Govern- terests of the service under section A. of part ment) or for any other reason authorized by 2 and guidance established by the Military this part. Department concerned. (6) Prior to involuntary separation under e. Parenthood. A member may be separated this provision, the Notification Procedure by reason of parenthood if as a result thereof (section B. of part 3) shall be used. it is determined under the guidance set forth (7) The reasons designated by the Sec- in section A. of part 2 that the member is un- retary concerned shall be separately re- able satisfactorily to perform his or her du- ported. ties or is unavailable for worldwide assign- i. Additional grounds. The Secretary con- ment or deployment. Prior to involuntary cerned may provide additional grounds for separation under this provision, the Notifica- separation for the convenience of the govern- tion Procedure (section B. of part 3) shall be ment. A copy of the document authorizing used. Separation processing may not be initi- such grounds shall be forwarded to the ated until the member has been counseled ASD(MRA&L) on or before the date of imple- formally concerning deficiencies and has mentation. been afforded an opportunity to overcome D. Disability. 1. Basis. A member may be those deficiencies as reflected in appropriate separated for disability under the provisions counseling or personnel records. of 10 U.S.C. chapter 61. f. Conscientious objection. A member may be 2. Characterization or description. Honorable, separated if authorized under 32 CFR part 75 unless: (DoD Directive 1300.6). a. An Entry Level Separation is required g. Surviving family member. A member may under section C. of part 2; or be separated if authorized under 32 CFR part b. Characterization of service as General 52 (DoD Directive 1315.14). (under honorable conditions) is warranted h. Other designated physical or mental condi- under section C. of part 2. tions. (1) The Secretary concerned may au- 3. Procedures. Procedural requirements for thorize separation on the basis of other des- separation may be established by the Mili- ignated physical or mental conditions, not tary Departments consistent with 10 U.S.C. amounting to Disability (section D., below), chapter 61. If separation is recommended, the that potentially interfere with assignment following requirements apply prior to char- to or performance of duty under the guid- acterization of service as General (under ance set forth in section A. of part 2. Such honorable conditions): the member shall be conditions may include but are not limited notified of the specific factors in the service to chronic seasickness or airsickness, enure- 1 sis, and personality disorder. of Mental Disorders, 3d Edition, Committee on Nomenclature & Statistics, American 1 Personality disorders are described in the Psychiatric Association, Washington, DC, Diagnostic and Statistical Manual (DSM–III) 1978.

89 Pt. 41, App. A 32 CFR Ch. I (7–1–97 Edition)

record that warrant such a characterization, (2) If separation processing is initiated, the and the Notification Procedure (section B. of Notification Procedure (section B. of part 3) part 3) shall be used. Such notice and proce- shall be used. dure is not required, however, when charac- 3. Defective enlistment agreements. a. Basis. A terization of service as General (under hon- defective enlistment agreement exists in the orable conditions) is based upon numerical following circumstances: scores accumulated in a formal, service-wide (1) As a result of a material misrepresenta- rating system that evaluates conduct and tion by recruiting personnel, upon which the performance on a regular basis. member reasonably relied, the member was E. Defective Enlistments and Inductions. 1. induced to enlist with a commitment for Minority. a. Basis. (1) Under age 17. If a mem- which the member was not qualified; ber is under the age of 17, the enlistment of the member is void, and the member shall be (2) The member received a written enlist- separated. ment commitment from recruiting personnel (2) Age 17. A member shall be separated for which the member was qualified, but under 10 U.S.C. 1170 in the following cir- which cannot be fulfilled by the Military cumstances except when the member is re- Service; or tained for the purpose of trial by court-mar- (3) The enlistment was involuntary. See 10 tial: U.S.C. 802. (a) There is evidence satisfactory to the b. Characterization or description. Honor- Secretary concerned that the member is able, unless an Entry Level Separation or an under 18 years of age; order of release from the custody and control (b) The member enlisted without the writ- of the Military Services (by reason of void ten consent of the member’s parent or guard- enlistment) is required under section C. of ian; and part 2. (c) An application for the member’s separa- c. Procedures. This provision does not bar tion is submitted to the Secretary concerned appropriate disciplinary action or other ad- by the parent or guardian within 90 days of ministrative separation proceedings regard- the member’s enlistment. less of when the defect is raised. Separation b. Description of separation. A member sepa- is appropriate under this provision only in rated under subparagraph E.1.a.(1), above, shall receive an order of release from the the following circumstances: custody and control of the armed forces (by (1) The member did not knowingly partici- reason of void enlistment or induction). The pate in creation of the defective enlistment; separation of a member under subparagraph (2) The member brings the defect to the at- E.1.a.(2), above, shall be described as an tention of appropriate authorities within 30 Entry Level Separation. days after the defect is discovered or reason- c. Procedure. The Notification Procedure ably should have been discovered by the (section B. of part 3) shall be used. member; 2. Erroneous. a. Basis. A member may be (3) The member requests separation in- separated on the basis of an erroneous enlist- stead of other authorized corrective action; ment, induction, or extension of enlistment and under the guidance set forth in section A. of (4) The request otherwise meets such cri- part 2. An enlistment, induction, or exten- teria as may be established by the Secretary sion of enlistment is erroneous in the follow- concerned. ing circumstances, if: 4. Fraudulent entry into military service. a. (1) It would not have occurred had the rel- Basis. A member may be separated under evant facts been known by the government guidance set forth in section A. of part 2 on or had appropriate directives been followed; the basis of procurement of a fraudulent en- (2) It was not the result of fraudulent con- listment, induction, or period of military duct on the part of the member; and service through any deliberate material mis- (3) The defect is unchanged in material re- representation, omission, or concealment spects. b. Characterization or description. Honor- which, if known at the time of enlistment, able, unless an Entry Level Separation or an induction, or entry onto a period of military order of release from the custody and control service, might have resulted in rejection. of the Military Services (by reason of void b. Characterization or description. Character- enlistment or induction) is required under ization of service or description of separa- section C. of part 2. tion shall be in accordance with section C. of c. Procedure. (1) If the command rec- part 2. If the fraud involves concealment of a ommends that the individual be retained in prior separation in which service was not military service, the initiation of separation characterized as Honorable, characterization processing is not required in the following normally shall be Under Other Than Honor- circumstances: able Conditions. (a) The defect is no longer present; or c. Procedures. The Notification Procedure (b) The defect is waivable and a waiver is (section B. of part 3) shall be used except as obtained from appropriate authority. follows:

90 Office of the Secretary of Defense Pt. 41, App. A

(1) Characterization of service Under Other 4. Procedures. The Notification Procedure Than Honorable Conditions may not be is- (section B. of part 3) shall be used. sued unless the Administrative Board Proce- G. Unsatisfactory Performance. 1. Basis. A dure (section C. of part 3) is used. member may be separated when it is deter- (2) When the sole reason for separation is mined under the guidance set forth in sec- fraudulent entry, suspension of separation tion A. of part 2 that the member is unquali- (section B. of part 2) is not authorized. When fied for further military service by reason of there are approved reasons for separation in unsatisfactory performance. This reason addition to fraudulent entry, suspension of shall not be used if the member is in entry separation is authorized only in the follow- level status (§ 41.6(i)). ing circumstances: 2. Counseling and Rehabilitation. Separation (a) A waiver of the fraudulent entry is ap- processing may not be initiated until the proved; and member has been counseled formally con- (b) The suspension pertains to reasons for cerning deficiencies and has been afforded an separation other than the fraudulent entry. opportunity to overcome those deficiencies (3) If the command recommends that the as reflected in appropriate counseling or per- member be retained in military service, the sonnel records. Counseling and rehabilita- initiation of separation processing is unnec- tion requirements are of particular impor- essary in the following circumstances: tance with respect to this reason for separa- (a) The defect is no longer present; or tion. Because military service is a calling (b) The defect is waivable and a waiver is different from any civilian occupation, a obtained from appropriate authority. member should not be separated when unsat- (4) If the material misrepresentation in- isfactory performance is the sole reason un- cludes preservice homosexuality (subsection less there have been efforts at rehabilitation H.1.), the standards of paragraph H.1.c. and under standards prescribed by the Secretary procedures of subsection H.3. shall be applied concerned. in processing a separation under this section. 3. Characterization or description. The serv- In such a case the characterization or de- ice shall be characterized as Honorable or scription of the separation shall be deter- General (under honorable conditions) in ac- mined under paragraph E.4.b., above. cordance with section C. of part 2. F. Entry Level Performance and Conduct. 1. 4. Procedures. The Notification Procedure Basis. a. A member may be separated while (section B. of part 3) shall be used. in entry level status (§ 41.6(i)) when it is de- H. Homosexuality. 1. Basis. a. Homosexual- termined under the guidance set forth in sec- ity is incompatible with military service. tion A. of part 2 that the member is unquali- The presence in the military environment of fied for further military service by reason of persons who engage in homosexual conduct unsatisfactory performance or conduct (or or who, by their statements, demonstrate a both), as evidenced by inability, lack of rea- propensity to engage in homosexual conduct, sonable effort, failure to adapt to the mili- seriously impairs the accomplishment of the tary environment or minor disciplinary in- military mission. The presence of such mem- fractions. bers adversely affects the ability of the Mili- b. When separation of a member in entry tary Services to maintain discipline, good level status is warranted by unsatisfactory order, and morale; to foster mutual trust and performance or minor disciplinary infrac- confidence among servicemembers; to ensure tions (or both), the member normally should the integrity of the system of rank and com- be separated under this section. Nothing in mand; to facilitate assignment and world- this provision precludes separation under an- wide deployment of servicemembers who fre- other provision of this Directive when such quently must live and work under close con- separation is authorized and warranted by ditions affording minimal privacy; to recruit the circumstances of the case. and retain members of the Military Services; 2. Counseling and rehabilitation. Separation to maintain the public acceptability of mili- processing may not be initiated until the tary service; and to prevent breaches of secu- member has been counseled formally con- rity. cerning deficiencies and has been afforded an b. As used in this section: opportunity to overcome those deficiencies (1) Homosexual means a person, regardless as reflected in appropriate counseling or per- of sex, who engages in, desires to engage in, sonnel records. Counseling and rehabilita- or intends to engage in homosexual acts; tion requirements are important with re- (2) Bisexual means a person who engages spect to this reason for separation. Because in, desires to engage in, or intends to engage military service is a calling different from in homosexual and heterosexual acts; and any civilian occupation, a member should (3) A homosexual act means bodily con- not be separated when this is the sole reason tact, actively undertaken or passively per- unless there have been efforts at rehabilita- mitted, between members of the same sex for tion under standards prescribed by the Sec- the purpose of satisfying sexual desires. retary concerned. c. The basis for separation may include 3. Description of separation. Entry Level preservice, prior service, or current service Separation. conduct or statements. A member shall be

91 Pt. 41, App. A 32 CFR Ch. I (7–1–97 Edition) separated under this section if one or more b. The Administrative Board shall follow of the following approved findings is made: the procedures set forth in subsection C.5. of (1) The member has engaged in, attempted part 3, except with respect to the following to engage in, or solicited another to engage matters: in a homosexual act or acts unless there are (1) If the Board finds that one or more of approved further findings that: the circumstances authorizing separation (a) Such conduct is a departure from the under paragraph H.1.c., above, is supported member’s usual and customary behavior; by the evidence, the Board shall recommend (b) Such conduct under all the cir- separation unless the Board finds that reten- cumstances is unlikely to recur; tion is warranted under the limited cir- (c) Such conduct was not accomplished by cumstances described in that paragraph. use of force, coercion, or intimidation by the (2) If the Board does not find that there is member during a period of military service; sufficient evidence that one or more of the (d) Under the particular circumstances of circumstances authorizing separation under the case, the member’s continued presence in paragraph H.1.c. has occurred, the Board the Service is consistent with the interest of shall recommend retention unless the case the Service in proper discipline, good order, involves another basis for separation of and morale; and which the member has been duly notified. (e) The member does not desire to engage c. In any case in which characterization of in or intend to engage in homosexual acts. service Under Other Than Honorable Condi- tions is not authorized, the Separation Au- (2) The member has stated that he or she is thority may be exercised by an officer des- a homosexual or bisexual unless there is a ignated under paragraph B.4.a. of part 3. further finding that the member is not a ho- d. The Separation Authority shall dispose mosexual or bisexual. of the case according to the following provi- (3) The member has married or attempted sions: to marry a person known to be of the same (1) If the Board recommends retention, the biological sex (as evidenced by the external Separation Authority shall take one of the anatomy of the persons involved) unless following actions: there are further findings that the member is (a) Approve the finding and direct reten- not a homosexual or bisexual and that the tion; or purpose of the marriage or attempt was the (b) Forward the case to the Secretary con- avoidance or termination of military service. cerned with a recommendation that the Sec- 2. Characterization or description. Character- retary separate the member under the Sec- ization of service or description of separa- retary’s Authority (section O. of this part 1). tion shall be in accordance with the guidance (2) If the Board recommends separation, in section C. of part 2. When the sole basis the Separation Authority shall take one of for separation is homosexuality, a character- the following actions: ization Under Other Than Honorable Condi- (a) Approve the finding and direct separations may be issued only if such a character- tion; or ization is warranted under section C. of part (b) Disapprove the finding on the basis of 2 and there is a finding that during the cur- the following considerations: rent term of service the member attempted, 1 There is insufficient evidence to support solicited, or committed a homosexual act in the finding; or the following circumstances: 2 Retention is warranted under the limited a. By using force, coercion, or intimida- circumstances described in paragraph H.1.c., tion; above. b. With a person under 16 years of age; (3) If there has been a waiver of Board pro- c. With a subordinate in circumstances ceedings, the Separation Authority shall dis- that violate customary military superior- pose of the case in accordance with the fol- subordinate relationships; lowing provisions: d. Openly in public view; (a) If the Separation Authority determines e. For compensation; that there is not sufficient evidence to sup- f. Aboard a military vessel or aircraft; or port separation under paragraph H.1.c., the g. In another location subject to military Separation Authority shall direct retention control under aggravating circumstances unless there is another basis for separation noted in the finding that have an adverse im- of which the member has been duly notified. pact on discipline, good order, or morale (b) If the Separation Authority determines comparable to the impact of such activity that one or more of the circumstances au- aboard a vessel or aircraft. thorizing separation under paragraph H.1.c. 3. Procedures. The Administrative Board has occurred, the member shall be separated Procedure (section C. of part 3) shall be used, unless retention is warranted under the lim- subject to the following guidance: ited circumstances described in that para- a. Separation processing shall be initiated graph. if there is probable cause to believe separa- e. The burden of proving that retention is tion is warranted under paragraph H.1.c., warranted under the limited circumstances above. described in paragraph H.1.c. rests with the

92 Office of the Secretary of Defense Pt. 41, App. A member, except in cases where the member’s J. Alcohol Abuse Rehabilitation Failure. 1. conduct was solely the result of a desire to Basis. a. A member who has been referred to avoid or terminate military service. a program of rehabilitation for drug and al- f. Findings regarding the existence of the cohol abuse may be separated for failure limited circumstances warranting a mem- through inability or refusal to participate in, ber’s retention under paragraph H.1.c. are re- cooperate in, or successfully complete such a quired only if: program in the following circumstances: (1) The member clearly and specifically (1) There is a lack of potential for contin- raises such limited circumstances; or ued military service; or (2) The Board or Separation Authority re- (2) Long-term rehabilitation is determined lies upon such circumstances to justify the necessary and the member is transferred to a member’s retention. civilian medical facility for rehabilitation. g. Nothing in these procedures: (1) Limits the authority of the Secretary b. Nothing in this provision precludes sepa- concerned to take appropriate action in a ration of a member who has been referred to case to ensure that there has been compli- such a program under any other provision of ance with the provisions of this part; this part in appropriate cases. (2) Precludes retention of a member for a c. Alcohol abuse rehabilitation failures limited period of time in the interests of na- shall be reported separately from drug abuse tional security as authorized by the Sec- rehabilitation failures. If separation is based retary concerned; on both, the primary basis shall be used for (3) Authorizes a member to seek Secretar- reporting purposes. ial review unless authorized in procedures 2. Characterization or description. When a promulgated by the Secretary concerned; member is separated under this provision, (4) Precludes separation in appropriate cir- characterization of service as Honorable or cumstances for another reason set forth in General (under honorable conditions) is au- this part; or thorized except when an Entry Level Separa- (5) Precludes trial by court-martial in ap- tion is required under section C. of part 2. propriate cases. 3. Procedures. The Notification Procedure I. Drug Abuse Rehabilitation Failure. 1. (section B. of part 3) shall be used. Basis. a. A member who has been referred to K. Misconduct. 1. Basis. a. Reasons. A mem- a program of rehabilitation for personal drug ber may be separated for misconduct when it and alcohol abuse may be separated for fail- is determined under the guidance set forth in ure through inability or refusal to partici- section A. of part 2 that the member is un- pate in, cooperate in, or successfully com- qualified for further military service by rea- plete such a program in the following cir- son of one or more of the following circumstances: cumstances: (1) There is a lack of potential for contin- (1) Minor disciplinary infractions. A pattern ued military service; or of misconduct consisting solely of minor dis- (2) Long-term rehabilitation is determined ciplinary infractions. If separation of a mem- necessary and the member is transferred to a ber in entry level status is warranted solely civilian medical facility for rehabilitation. by reason of minor disciplinary infractions, b. Nothing in this provision precludes sepa- the action should be processed under Entry ration of a member who has been referred to Level Performance and Conduct (section F., such a program under any other provision of above). this part in appropriate cases. (2) A pattern of misconduct. A pattern of c. Drug abuse rehabilitation failures shall misconduct consisting of (a) descreditable be reported separately from alcohol abuse re- involvement with civil or military authori- habilitation failures. If separation is based ties or (b) conduct prejudicial to good order on both, the primary basis shall be used for and discipline. reporting requirements. 2. Characterization or description. When a (3) Commission of a serious offense. Commis- member is separated under this provision, sion of a serious military or civilian offense characterization of service as Honorable or if in the following circumstances: General (under honorable conditions) is au- (a) The specific circumstances of the of- thorized except when an Entry Level Separa- fense warrant separation; and tion is required under section C. of part 2. (b) A punitive discharge would be author- The relationship between voluntary submis- ized for the same or a closely related offense sion for treatment and the evidence that under the Manual for Courts-Martial, 1969 may be considered on the issue of character- (Revised Edition), as amended. ization is set forth in subparagraph C.2.c.(6) (4) Civilian conviction. (a) Conviction by ci- of part 2. The relationship between manda- vilian authorities or action taken which is tory urinalysis and the evidence that may be tantamount to a finding of guilty, including considered on the issue of characterization is similar adjudications in juvenile proceed- set forth in subparagraph C.2.c.(7) of part 2. ings, when the specific circumstances of the 3. Procedures. The Notification Procedure offense warrant separation, and the follow- (section B. of part 3) shall be used. ing conditions are present:

93 Pt. 41, App. A 32 CFR Ch. I (7–1–97 Edition)

1 A punitive discharge would be authorized and K.1.a.(2) and characterization of service for the same or a closely related offense Under Other Than Honorable Conditions is under the Manual for Courts-Martial; or not warranted under section C. of part 2. 2 The sentence by civilian authorities in- L. Separation in Lieu of Trial by Court-Mar- cludes confinement for six months or more tial. 1. Basis. A member may be separated without regard to suspension or probation. upon request of trial by court-martial if (b) Separation processing may be initiated charges have been preferred with respect to whether or not a member has filed an appeal an offense for which a punitive discharge is of a civilian conviction or has stated an in- authorized and it is determined that the tention to do so. Execution of an approved member is unqualified for further military separation should be withheld pending out- service under the guidance set forth in sec- come of the appeal or until the time for ap- tion A. of part 2. This provision may not be peal has passed, but the member may be sep- used when section B. of paragraph 127c of the arated prior to final action on the appeal Manual for Courts-Martial provides the sole upon request of the member or upon direc- basis for a punitive discharge unless the tion of the Secretary concerned. charges have been referred to a court-mar- b. Reporting. The Deputy Assistant Sec- tial empowered to adjudge a punitive dis- retary (Military Personnel and Force Man- charge. agement), Office of the ASD (MRA&L), shall 2. Characterization or description. Character- require separate reports under each subpara- ization of service normally shall be Under graph in paragraph K.1.a. for misconduct by Other Than Honorable Conditions, but char- reason of drug abuse, unauthorized absence, acterization as General (under honorable and such other categories as may be appro- conditions) may be warranted under the priate. guidelines in section C. of part 2. For re- c. Related separations. Misconduct involv- spondents who have completed entry level ing homosexuality shall be processed under status, characterization of service as Honor- section H. Misconduct involving a fraudulent able is not authorized unless the respond- enlistment is considered under subsection ent’s record is otherwise so meritorious that E.4., above. any other characterization clearly would be 2. Counseling and rehabilitation. Separation inappropriate. When characterization of processing for a pattern of misconduct (sub- service Under Other Than Honorable Condi- paragraphs K.1.a. (1) and (2)) may not be ini- tions is not warranted for a member in entry tiated until the member has been counseled level status under section C. of part 2, the formally concerning deficiencies and has been afforded an opportunity to overcome separation shall be described as an Entry those deficiencies as reflected in appropriate Level Separation. counseling or personnel records. If the sole 3. Procedures. a. The request for discharge basis of separation is a single offense (sub- must be submitted in writing and signed by paragraph K.1.a.(3)) or a civilian conviction the member. or a similar juvenile adjudication (subpara- b. The member shall be afforded oppor- graph K.1.a.(4)), the counseling and rehabili- tunity to consult with counsel qualified tation requirements are not applicable. under Article 27(b)(1) of the UCMJ. If the 3. Characterization or description. Character- member refuses to do so, counsel shall pre- ization of service normally shall be Under pare a statement to this effect, which shall Other Than Honorable Conditions, but char- be attached to the file, and the member shall acterization as General (under honorable state that he or she has waived the right to conditions) may be warranted under the consult with counsel. guidelines in section C. of part 2. For re- c. Except when the member has waived the spondents who have completed entry level right to counsel, the request shall be signed status, characterization of service as Honor- by counsel. able is not authorized unless the respond- d. In the written request, the member shall ent’s record is otherwise so meritorious that state that he or she understands the follow- any other characterization clearly would be ing: inappropriate and the separation is approved (1) The elements of the offense or offenses by a commander exercising general court- charged; martial jurisdiction or higher authority as (2) That characterization of service Under specified by the Secretary concerned. When Other Than Honorable Conditions is author- characterization of service Under Other ized; and Than Honorable Conditions is not warranted (3) The adverse nature of such a character- for a member in entry level status under sec- ization and possible consequences thereof. tion C. of part 2, the separation shall be de- e. The Secretary concerned shall also re- scribed as an Entry Level Separation. quire that one or both of the following mat- 4. Procedures. The Administrative Board ters be included in the request: Procedure (section C. of part 3) shall be used, (1) An acknowledgment of guilt of one or except that use of the Notification Procedure more of the offenses or any lesser included (section B. of part 3) is authorized if separa- offenses for which a punitive discharge is au- tion is based upon subparagraphs K.1.a.(1) thorized; or

94 Office of the Secretary of Defense Pt. 41, App. A

(2) A summary of the evidence or list of 2. Counseling and rehabilitation. Separation documents (or copies thereof) provided to processing may not be initiated until the the member pertaining to the offenses for member has been counseled formally con- which a punitive discharge is authorized. cerning deficiencies and has been afforded an f. The Separation Authority shall be a opportunity to overcome those deficiencies commander exercising general court-martial as reflected in appropriate counseling or per- jurisdiction or higher authority as specified sonnel records except when the Military De- by the Secretary concerned. partment concerned provides in its imple- g. Statements by the member or the mem- menting document that counseling and reha- ber’s counsel submitted in connection with a bilitation requirements are not applicable request under this subsection are not admis- for the specific reason for separation. sible against the member in a court-martial 3. Characterization or description. Character- except as authorized under Military Rule of ization of service or description of a separa- Evidence 410, Manual for Courts-Martial. tion shall be in accordance with section C. of M. Security. 1. Basis. When retention is part 2. clearly inconsistent with the interest of na- 4. Procedures. The procedures established tional security, a member may be separated by the Military Departments shall be con- by reason of security and under conditions sistent with the procedures contained in this and procedures established by the Secretary part insofar as practicable. of Defense in DoD 5200.2–R. 2. Characterization or description. Character- PART 2—GUIDELINES ON SEPARATION AND ization of service or description of a separa- CHARACTERIZATION tion shall be in accordance with section C. of A. Separation. 1. Scope. This general guid- part 2. ance applies when referenced in part 1. Fur- N. Unsatisfactory Participation in the Ready ther guidance is set forth under the specific Reserve. 1. Basis. A member may be separated reasons for separation in part 1. for unsatisfactory participation in the Ready 2. Guidance. a. There is a substantial in- Reserve under criteria established by the vestment in the training of persons enlisted Secretary concerned under 32 CFR part 100 or inducted into the Military Services. As a (DoD Directive 1215.13). general matter, reasonable efforts at reha- 2. Characterization or description. Character- bilitation should be made prior to initiation ization of service or description of a separa- of separation proceedings. tion shall be in accordance with section C. of b. Unless separation is mandatory, the po- part 2 and 32 CFR part 100 (DoD Directive tential for rehabilitation and further useful 1215.13). military service shall be considered by the 3. Procedures. The Administrative Board Separation Authority and, where applicable, Procedure (section C. of part 3) shall be used, the Administrative Board. If separation is except that the Notification Procedure (sec- warranted despite the potential for rehabili- tion B. of part 3) may be used if characteriza- tation, consideration should be given to sus- tion of service Under Other Than Honorable pension of the separation, if authorized. Conditions is not warranted under section C. c. Counseling and rehabilitation efforts are of part 2. a prerequisite to initiation of separation pro- O. Secretarial Plenary Authority. ceedings only insofar as expressly set forth 1. Basis. Notwithstanding any limitation under specific requirements for separation in on separations provided in this part the Sec- part 1. An alleged or established inadequacy retary concerned may direct the separation in previous rehabilitative efforts does not of any member prior to expiration of term of provide a legal bar to separation. service after determining it to be in the best d. The following factors may be considered interests of the Service. on the issue of retention or separation, de- 2. Characterization or description. Honorable pending on the circumstances of the case: or General (under honorable conditions) as (1) The seriousness of the circumstances warranted under section C. of part 2 unless forming the basis for initiation of separation an Entry Level Separation is required under proceedings, and the effect of the member’s section C. of part 2. continued retention on military discipline, 3. Procedures. Prior to involuntary separa- good order, and morale. tion, the Notification Procedure (section B. (2) The likelihood of continuation or recur- of part 3) shall be used, except the procedure rence of the circumstances forming the basis for requesting an Administrative Board for initiation of separation proceedings. (paragraph B.1.g. of part 3) is not applicable. (3) The likelihood that the member will be P. Reasons Established by the Military De- a disruptive or undesirable influence in partments. 1. Basis. The Military Depart- present or future duty assignments. ments may establish additional reasons for (4) The ability of the member to perform separation for circumstances not otherwise duties effectively in the present and in the provided for in this part to meet specific re- future, including potential for advancement quirements, subject to approval by the ASD or leadership. (MRA&L). (5) The member’s rehabilitative potential.

95 Pt. 41, App. A 32 CFR Ch. I (7–1–97 Edition)

(6) The member’s entire military record. (3) When the conduct is the subject of a re- (a) This may include: hearing ordered on the basis of fraud or col- 1 Past contributions to the Service, assign- lusion. ments, awards and decorations, evaluation B. Suspension of Separation. 1. Suspension. a. ratings, and letters of commendation; Unless prohibited by this part a separation 2 Letters of reprimand or admonition, may be suspended for a specified period of counseling records, records of nonjudicial not more than 12 months by the Separation punishment, records of conviction by court- Authority or higher authority if the cir- martial and records of involvement with ci- cumstances of the case indicate a reasonable vilian authorities; and likelihood or rehabilitation. 3 Any other matter deemed relevant by the b. During the period of suspension, the Board, if any, or the Separation Authority, member shall be afforded an opportunity to based upon the specialized training, duties, meet appropriate standards of conduct and and experience of persons entrusted by this duty performance. part with recommendations and decisions on c. Unless sooner vacated or remitted, exe- the issue of separation or retention. cution of the approved separation shall be re- (b) The following guidance applies to con- mitted upon completion of the probationary sideration of matter under subparagraph period, upon termination of the member’s A.2.d.(6)(a): enlistment or period of obligated service, or 1 Adverse matter from a prior enlistment upon decision of the Separation Authority or period of military service, such as records that the goal of rehabilitation has been of nonjudicial punishment and convictions achieved. by courts-martial, may be considered only 2. Action during the period of suspension. a. when such records would have a direct and During the period of suspension, if there are strong probative value in determining further grounds for separation under part 1, whether separation is appropriate. The use of one or more of the following actions may be such records ordinarily shall be limited to taken: those cases involving patterns of conduct (1) Disciplinary action; manifested over an extended period of time. (2) New administrative action; or 2 Isolated incidents and events that are re- (3) Vacation of the suspension accompanied mote in time normally have little probative by execution of the separation if the member value in determining whether administrative engages in conduct similar to that for which separation should be effected. separation was approved (but suspended) or 3. Limitations on separation actions. A mem- otherwise fails to meet appropriate stand- ber may not be separated on the basis of the ards of conduct and duty performance. following: b. Prior to vacation of a suspension, the a. Conduct that has been the subject of ju- member shall be notified in writing of the dicial proceedings resulting in an acquittal basis for the action and shall be afforded the or action having the effect thereof except in opportunity to consult with counsel (as pro- the following circumstances: vided in paragraph B.1.f. of part 3) and to (1) When such action is based upon a judi- submit a statement in writing to the Separa- cial determination not going to the guilt or tion Authority. The respondent shall be pro- innocence of the respondent; or vided a reasonable period of time, but not (2) When the judicial proceeding was con- less than 2 working days, to act on the no- ducted in a State or foreign court and the tice. If the respondent identifies specific separation is approved by the Secretary con- legal issues for consideration by the Separa- cerned. tion Authority, the matter shall be reviewed b. Conduct that has been the subject of a by a judge advocate or civilian lawyer em- prior Administrative Board in which the ployed by the government prior to final ac- Board entered an approved finding that the tion by the Separation Authority. evidence did not sustain the factual allega- C. Characterization of Service or Description tions concerning the conduct except when of Separation. 1. Types of characterization or the conduct is the subject of a rehearing or- description. a. At separation, the following dered on the basis of fraud or collusion; or types of characterization of service or de- c. Conduct that has been the subject of an scription of separation are authorized under administrative separation proceeding result- this part: ing in a final determination by a Separation (1) Separation with characterization of Authority that the member should be re- service as Honorable, General (under honor- tained, except in the following cir- able conditions), or Under Other Than Hon- cumstances: orable Conditions. (1) When there is subsequent conduct or (2) Entry Level Separation. performance forming the basis, in whole or (3) Order of release from the custody and in part, for a new proceeding; control of the Military Services by reason of (2) When there is new or newly discovered void enlistment or induction. evidence that was not reasonably available (4) Separation by being dropped from the at the time of the prior proceeding; or rolls of the Service.

96 Office of the Secretary of Defense Pt. 41, App. A

b. Any of the types of separation listed in orable conditions) is warranted when signifi- this section may be used in appropriate cir- cant negative aspects of the member’s con- cumstances unless a limitation set forth in duct or performance of duty outweigh posi- this section or in part 1 (Reasons for Separa- tive aspects of the member’s military record. tion). (3) Under Other Than Honorable Conditions. 2. Characterization of service. a. General con- (a) This characterization may be issued in siderations. (1) Characterization at separation the following circumstances: shall be based upon the quality of the mem- 1 When the reason for separation is based ber’s service, including the reason for separa- upon a pattern of behavior that constitutes a tion and guidance in paragraph C.2.b., below, significant departure from the conduct ex- subject to the limitations set forth under pected of members of the Military Services. various reasons for separation in part 1. The 2 When the reason for separation is based quality of service will be determined in ac- upon one or more acts or omissions that con- cordance with standards of acceptable per- stitute a significant departure from the con- sonal conduct and performance of duty for duct expected of members of the Military military personnel. These standards are Services. Examples of factors that may be found in the 10 U.S.C., sections 801–940, considered include the use of force or vio- UCMJ, directives and regulations issued by lence to produce serious bodily injury or the Department of Defense and the Military death, abuse of a special position of trust, Departments, and the time-honored customs disregard by a superior of customary supe- and traditions of military service. rior-subordinate relationships, acts or omis- (2) The quality of service of a member on sions that endanger the security of the Unit- active duty or active duty for training is af- ed States or the health and welfare of other fected adversely by conduct that is of a na- members of the Military Services, and delib- ture to bring discredit on the Military Serv- erate acts or omissions that seriously endan- ices or is prejudicial to good order and dis- ger the health and safety of other persons. cipline, regardless of whether the conduct is (b) This characterization is authorized subject to UCMJ jurisdiction. Characteriza- only if the member has been afforded the option may be based on conduct in the civilian portunity to request an Administrative community, and the burden is on the re- Board, except as provided in section L. of spondent to demonstrate that such conduct part 1 (Separation in Lieu of Trial by Courts- did not adversely affect the respondent’s Martial). service. c. Limitations on characterization. Except as (3) The reasons for separation, including otherwise provided in this paragraph, char- the specific circumstances that form the acterization will be determined solely by the basis for the separation, shall be considered member’s military record during the current on the issue of characterization. As a general enlistment or period of service to which the matter, characterization will be based upon separation pertains, plus any extensions a pattern of behavior rather than an isolated thereof prescribed by law or regulation or ef- incident. There are circumstances, however, fected with the consent of the member. in which the conduct or performance of duty (1) Prior service activities, including reflected by a single incident provides the records of conviction by courts-martial, basis for characterization. records of absence without leave, or commis- (4) Due consideration shall be given to the sion of other offenses for which punishment member’s age, length of service, grade, apti- was not imposed shall not be considered on tude, physical and mental condition, and the the issue of characterization. To the extent standards of acceptable conduct and per- that such matters are considered on the formance of duty. issue of retention or separation (subsection b. Types of characterization. (1) Honorable. A.2. of this part 2), the record of proceedings The Honorable characterization is appro- may reflect express direction that such in- priate when the quality of the member’s formation shall not be considered on the service generally has met the standards of issue of characterization. acceptable conduct and performance of duty (2) Preservice activities may not be consid- for military personnel, or is otherwise so ered on the issue of characterization except meritorious that any other characterization as follows: in a proceeding concerning fraud- would be clearly inappropriate. In the case of ulent entry into military service (subsection an Honorable Discharge, an Honorable Dis- E.4. of part 1), evidence of preservice mis- charge Certificate (DD Form 256) will be representations about matters that would awarded and a notation will be made on the have precluded, postponed, or otherwise af- appropriate copies of the DD Form 214/5 in fected the member’s eligibility for enlist- accordance with 32 CFR part 45 (DoD Direc- ment or induction may be considered on the tive 1336.1). issue of characterization. (2) General (under honorable conditions). If a (3) The limitations in subsection A.3., member’s service has been honest and faith- above, as to matters that may be considered ful, it is appropriate to characterize that on the issue of separation are applicable to service under honorable conditions. Charac- matters that may be considered on the issue terization of service as General (under hon- of characterization.

97 Pt. 41, App. A 32 CFR Ch. I (7–1–97 Edition)

(4) When the sole basis for separation is a lished by the Military Department (section serious offense which resulted in a convic- P.). tion by a court-martial that did not impose (2) In time of mobilization or in other ap- a punitive discharge, the member’s service propriate circumstances, the ASD (MRA&L) may not be characterized Under Other Than may authorize the Secretary concerned to Honorable Conditions unless such character- delegate the authority in subparagraph ization is approved by the Secretary con- (1)(b), above, (concerning the Honorable cerned. characterization) to a general court-martial (5) Conduct in the civilian community of a convening authority with respect to mem- member of a reserve component who is not bers serving in operational units. on active duty or active duty for training (3) With respect to administrative matters may form the basis for characterization outside this part that require a characteriza- Under Other Than Honorable Conditions tion as Honorable or General, an Entry Level only if such conduct affects directly the per- Separation shall be treated as the required formance of military duties. Such conduct characterization. This provision does not may form the basis of characterization as apply to administrative matters that ex- General (under honorable conditions) only if pressly require different treatment of an such conduct has an adverse impact on the Entry Level Separation except as provided in overall effectiveness of the service, including subparagraph (4), below. military morale and efficiency. (4) In accordance with 10 U.S.C. 1163, an (6) A member’s voluntary submission to a Entry Level Separation for a member of a DoD treatment and rehabilitation program Reserve Component separated from the De- (for personal use of drugs) and evidence pro- layed Entry Program is ‘‘under honorable vided voluntarily by the member concerning conditions.’’ personal use of drugs as part of initial entry b. Void enlistments or inductions. A member into such a program may not be used against shall not receive a discharge, characteriza- the member on the issue of characterization. tion of service at separation, or an Entry This limitation does not preclude the follow- Level Separation if the enlistment or inducing actions: tion is void except when a constructive en- (a) The introduction of evidence for im- listment arises and such action is required peachment or rebuttal purposes in any pro- under subparagraph (3), below. If character- ceeding in which the evidence of drug abuse (or lack thereof) has been first introduced by ization or an Entry Level Separation is not the member; and required, the separation shall be described as (b) Taking action based on independently an order of release from custody or control derived evidence, including evidence of drug of the Military Services. abuse after initial entry into the treatment (1) An enlistment is void in the following and rehabilitation program. circumstances: (7) The results of mandatory urinalysis (a) If it was effected without the voluntary may be used on the issue of characterization consent of a person who has the capacity to except as provided in the Deputy Secretary understand the significance of enlisting in of Defense Memorandum, ‘‘Alcohol and Drug the Military Services, including enlistment Abuse,’’ December 28, 1981, and rules promul- of a person who is intoxicated or insane at gated thereunder. the time of enlistment. 10 U.S.C. 504; Article 3. Uncharacterized separations. a. Entry 2(b), UCMJ. Level Separation. (1) A separation shall be de- (b) If the person is under 17 years of age. 10 scribed as an Entry Level Separation if sepa- U.S.C. 505. ration processing is initiated while a mem- (c) If the person is a deserter from another ber is in entry level status, except in the fol- Military Service. 10 U.S.C. 504. lowing circumstances: (2) Although an enlistment may be void at (a) When characterization Under Other its inception, a constructive enlistment shall Than Honorable Conditions is authorized arise in the case of a person serving with a under the reason for separation (part 1) and Military Service who: is warranted by the circumstances of the (a) Submitted voluntarily to military au- case; or thority; (b) The Secretary concerned, on a case-by- (b) Met the mental competency and mini- case basis, determines that characterization mum 10 U.S.C. age qualifications of sections of service as Honorable is clearly warranted 504 and 505 of, at the time of voluntary sub- by the presence of unusual circumstances in- mission to military authority; volving personal conduct and performance of (c) Received military pay or allowances; military duty. This characterization is au- and thorized when the member is separated (d) Performed military duties. under part 1 by reason of selected changes in (3) If an enlistment that is void at its inservice obligation (section B.), Convenience ception is followed by a constructive enlist- of the Government (section C.), Disability ment within the same term of service, char- (section D.), Secretarial Plenary Authority acterization of service or description of sepa- (secton O.), or an approved reason estab- ration shall be in accordance with subsection

98 Office of the Secretary of Defense Pt. 41, App. A

C.2. or paragraph C.3.a. of this part 2, as ap- to a reserve component, transfer from the propriate; however, if the enlistment was Selected Reserve to the IRR, release from void by reason of desertion from another custody or control of the Military Services, Military Service, the member shall be sepa- or other form of separation. rated by an order of release from the custody c. The least favorable characterization of and control of the Service regardless of any service or description of separation author- subsequent constructive enlistment. The oc- ized for the proposed separation. currence of such a constructive enlistment d. The right to obtain copies of documents does not preclude the Military Departments, that will be forwarded to the Separation Au- in appropriate cases, from either retaining thority supporting the basis of the proposed the member or separating the member under separation. Classified documents may be section E. of part 1 on the basis of the cir- summarized. cumstances that occasioned the original void e. The respondent’s right to submit state- enlistment or upon any other basis for sepa- ments. ration provided in this part. f. The respondent’s right to consult with c. Dropping from the rolls. A member may be counsel qualified under Article 27(b)(1) of the dropped from the rolls of the Service when UCMJ. Nonlawyer counsel may be appointed such action is authorized by the Military De- when the respondent is deployed aboard a partment concerned and a characterization vessel or in similar circumstances of separa- of service or other description of separation tion from sufficient judge advocate resources is not authorized or warranted. as determined under standards and proce- PART 3—PROCEDURES FOR SEPARATION dures specified by the Secretary concerned. The respondent also may consult with civil- A. Scope. 1. The supplementary procedures ian counsel retained at the member’s own ex- in this part are applicable only when re- pense. quired under a specific reason for separation g. If the respondent has 6 or more years of (part 1). These procedures are subject to the total active and reserve military service, the requirements set forth in part 1 with respect right to request an Administrative Board to specific reasons for separation. (section C.). 2. When a member is processed on the basis h. The right to waive paragraphs d., e., f. or of multiple reasons for separation, the fol- g., above, after being afforded a reasonable lowing guidelines apply to procedural re- opportunity to consult with counsel, and quirements (including procedural limitations that failure to respond shall constitute a on characterization of service or description waiver of the right. of separation): 2. Additional notice requirements. a. If sepa- a. The requirements for each reason will be ration processing is initiated on the basis of applied to the extent practicable. more than one reason under part 1, the re- b. If a reason for separation set forth in the quirements of paragraph B.1.a. apply to all notice of proposed action requires processing under the Administrative Board Procedure proposed reasons for separation. (section C., below), the entire matter shall be b. If the respondent is in civil confinement, processed under section C. absent without leave, or in a reserve compo- c. If more than one reason for separation is nent not on active duty or upon transfer to approved, the guidance on characterization the IRR, the relevant notification procedures that provides the greatest latitude may be in sections D., E., or F. of this part 3 apply. applied. c. Additional notification requirements are d. When there is any other clear conflict set forth in part 1, sections C. and D., when between a specific requirement applicable to characterization of service as General (under one reason and a general requirement appli- honorable conditions) is authorized and the cable to another reason, the specific require- member is processed for separation by reason ment shall be applied. of Convenience of the Government or Dis- e. If a conflict in procedures cannot be re- ability. solved on the basis of the foregoing prin- 3. Response. The respondent shall be pro- ciples, the procedure most favorable to the vided a reasonable period of time, but not respondent shall be used. less than 2 working days, to act on the no- B. Notification Procedure. 1. Notice. If the tice. An extension may be granted upon a Notification Procedure is initiated under timely showing of good cause by the respond- part 1, the respondent shall be notified in ent. The decision of the respondent on each writing of the matter set forth in this sec- of the rights set forth in paragraphs 1.d. tion. through g., above, and applicable provisions a. The basis of the proposed separation, in- referenced in subsection 2. shall be recorded cluding the circumstances upon which the and signed by the respondent and counsel, action is based and a reference to the appli- subject to the following limitation: cable provisions of the Military Depart- a. If notice by mail is authorized under sec- ment’s implementing regulation. tions D., E., or F. of this part 3 and the re- b. Whether the proposed separation could spondent fails to acknowledge receipt or sub- result in discharge, release from active duty mit a timely reply, that fact shall constitute

99 Pt. 41, App. A 32 CFR Ch. I (7–1–97 Edition) a waiver of rights and an appropriate nota- mination as to whether the respondent tion shall be recorded on a retained copy of should be retained in the Ready Reserve as a the appropriate form. mobilization asset to fulfill the respondent’s b. If the respondent declines to respond as total military obligation. This option applies to the selection of rights, such declination in cases involving separation from active shall constitute a waiver of rights and an ap- duty or from the Selected Reserve. Section propriate notation will be made on the form E. of this part 3 is applicable if such action provided for respondent’s reply. If the re- is approved. spondent indicates that one or more of the C. Administrative Board Procedure. 1. Notice. rights will be exercised, but declines to sign If an Administrative Board is required, the the appropriate form, the selection of rights respondent shall be notified in writing of the will be noted and an appropriate notation as matters set forth in this section. to the failure to sign will be made. a. The basis of the proposed separation, in- 4. Separation Authority. a. The Separation cluding the circumstances upon which the Authority for actions initiated under the No- action is based and reference to the applica- tification Procedure shall be a special court- ble provisions of the Military Department’s martial convening authority or higher au- implementing regulation. thority. The Secretary concerned also may b. Whether the proposed separation could authorize a commanding officer in grade 0–5 result in discharge, release from active duty or above with a judge advocate or legal advi- to a reserve component, transfer from the sor available to the command to act as a Selected Reserve to the IRR, release from Separation Authority for a specified reason the custody or control of the Military Serv- for separation, subject to approval by the ices, or other form of separation. ASD(MRA&L). When the case has been initi- c. The least favorable characterization of ated under the Administrative Board Proce- service or description of separation author- dure and the member has waived the right to ized for the proposed separation. a hearing under section C.4., the Separation d. The respondent’s right to consult with Authority shall be an official designated counsel as prescribed in paragraph B.1.f. of under subsection C.6., below. b. The action of the Separation Authority this part 3. However, nonlawyer counsel may shall be recorded. not represent a respondent before an Admin- c. The Separation Authority shall deter- istrative Board unless (1) the respondent ex- mine whether there is sufficient evidence to pressly declines appointment of counsel verify the allegations set forth in the notifi- qualified under Article 27(b) (1) of the UCMJ cation of the basis for separation. If an alle- (10 U.S.C.) and requests a specific nonlawyer gation is not supported by a preponderance counsel; or (2) the Separation Authority as- of the evidence, it may not be used as a basis signs nonlawyer counsel as assistant coun- for separation. sel. d. If there is a sufficient factual basis for e. The right to obtain copies of documents separation, the Separation Authority shall that will be forwarded to the Separation Au- determine whether separation is warranted thority supporting the basis of the proposed under the guidance in sections A. and B. of separation. Classified documents may be part 2. On the basis of that guidance, the summarized. Separation Authority shall direct one of the f. The respondent’s right to request a hear- following actions: ing before an Administrative Board. (1) Retention; g. The respondent’s right to present writ- (2) Separation for a specific reason under ten statements instead of board proceedings. part 1; or h. The respondent’s right to representation (3) Suspended separation in accordance at the Administrative Board either by mili- with the guidance in section B. part 2. tary counsel appointed by the Convening Au- e. If the Separation Authority directs sepa- thority or by military counsel of the re- ration or suspended separation on the basis spondent’s own choice (if counsel of choice is of more than one reason under part 1, the determined to be reasonably available under Separation Authority shall designate the regulations of the Secretary concerned) but most appropriate basis as the primary reason not both. for reporting purposes. i. The right to representation at the Ad- f. If separation or a suspended separation is ministrative Board by civilian counsel at the directed, the Separation Authority shall as- respondent’s own expense. sign a characterization or description in ac- j. The right to waive the rights in para- cordance with section C. of part 2. graphs d. through i., above. g. Except when characterization Under k. That failure to respond after being af- Other Than Honorable Conditions is directed forded a reasonable opportunity to consult or the member is separated on the basis of with counsel constitutes a waiver of the homosexuality or a void enlistment or induc- rights in paragraphs d. through i., above. tion, the Secretary concerned may authorize l. Failure to appear without good cause at the Separation Authority or higher author- a hearing constitutes waiver of the right to ity to make a recommendation or deter- be present at the hearing.

100 Office of the Secretary of Defense Pt. 41, App. A

2. Additional notice requirements. a. If sepa- Board, the following procedures are applica- ration processing is initiated on the basis of ble: more than one reason under part 1, the re- a. Composition. (1) The Convening Author- quirements of paragraph C.1.a. apply to all ity shall appoint to the Administrative proposed reasons for separation. Board at least three experienced commis- b. If the respondent is in civil confinement, sioned, warrant, or noncommissioned offi- absent without leave, or in a reserve compo- cers. Enlisted personnel appointed to the nent not on active duty or upon transfer to Board shall be in grade E–7 or above, and the IRR, the relevant notification procedures shall be senior to the respondent. At least in sections D., E., or F. of this part 3 apply. one member of the Board shall be serving in c. Additional notification requirements are the grade of 0–4 or higher, and a majority set forth in sections C. and D., part 1, when shall be commissioned or warrant officers. characterization of service as General (under The senior member shall be the president of honorable conditions) is authorized and the the Board. The Convening Authority also member is processed for separation by reason may appoint to the Board a nonvoting re- of Convenience of the Government or Dis- corder. A nonvoting legal advisor may be ap- ability. pointed to assist the Board if authorized by 3. Response. The respondent shall be pro- the Secretary concerned. vided a reasonable period of time, but not (2) If the respondent is an enlisted member less than 2 working days, to act on the no- of a reserve component or holds an appoint- tice. An extension may be granted upon a ment as a reserve commissioned or warrant timely showing of good cause by the respond- officer, the Board shall include at least one ent. The decision of the respondent on each Reserve officer as a voting member. Voting of the rights set forth in paragraphs 1.d. members shall be senior to the respondent’s through 1.i., above, and applicable provisions reserve grade. See 10 U.S.C. 266. referenced in subsection 2., above, shall be (3) The Convening Authority shall insure recorded and signed by the respondent and that the opportunity to serve on Administra- counsel, subject to the following limitations: tive Boards is given to women and minori- a. If notice by mail is authorized under sec- ties. The mere appointment or failure to ap- tions D., E., or F. of this part 3 and the re- point a member of such a group to the Board, spondent fails to acknowledge receipt or sub- however, does not provide a basis for chal- mit a timely reply, that fact shall constitute lenging the proceeding. a waiver of rights and an appropriate nota- (4) The respondent may challenge a voting tion shall be recorded on a retained copy of member of the Board or the legal advisor, if the appropriate form. any, for cause only. b. If the respondent declines to respond as b. Presiding officer. The president shall pre- to the selection of rights, such declination side and rule finally on all matters of proce- shall constitute a waiver of rights and an ap- dure and evidence, but the rulings of the propriate notation will be made on the form president may be overruled by a majority of provided for respondent’s reply. If the re- the Board. If appointed, the legal advisor spondent indicates that one or more of the shall rule finally on all matters of evidence rights will be exercised, but declines to sign and challenges except challenges to himself. the appropriate form, the selection of rights c. Witnesses. (1) The respondent may re- will be noted and an appropriate notation as quest the attendance of witnesses in accord- to the failure to sign will be made. ance with the implementing instruction of 4. Waiver. a. If the right to a hearing before the Military Department concerned. an Administrative Board is waived, the case (2) In accordance with such instructions, will be processed under subsection B.4. of the respondent may submit a written request this part 3 (Notification Procedure), but the for TDY or invitational travel orders for wit- Separation Authority in such cases shall be nesses. Such a request shall contain the fol- an official designated under subsection C.6. lowing matter: b. When authorized by the Secretary con- (a) A synoposis of the testimony that the cerned, a respondent entitled to an Adminis- witness is expected to give. trative Board may exercise a conditional (b) An explanation of the relevance of such waiver after a reasonable opportunity to testimony to the issues of separation or consult with counsel under paragraph C.1.d. characterization. A conditional waiver is a statement initiated (c) An explanation as to why written or re- by a respondent waiving the right to a board corded testimony would not be sufficient to proceeding contingent upon receiving a char- provide for a fair determination. acterization of service or description of sepa- (3) The Convening Authority may author- ration higher than the least favorable char- ize expenditure of funds for production of acterization or description authorized for the witnesses only if the presiding officer (after basis of separation set forth in the notice to consultation with a judge advocate) or the the respondent. legal advisor (if appointed) determines that: 5. Hearing procedure. If a respondent re- (a) The testimony of a witness is not cu- quests a hearing before an Administrative mulative;

101 Pt. 41, App. A 32 CFR Ch. I (7–1–97 Edition)

(b) The personal appearance of the witness e. Presentation of evidence. The rules of evi- is essential to a fair determination on the is- dence for courts-martial and other judicial sues of separation or characterization; proceedings are not applicable before an Ad- (c) Written or recorded testimony will not ministrative Board. Reasonable restrictions accomplish adequately the same objective; shall be observed, however, concerning rel- (d) The need for live testimony is substan- evancy and competency of evidence. tial, material, and necessary for a proper dis- f. Rights of the respondent. (1) The respond- position of the case; and ent may testify in his or her own behalf, sub- (e) The significance of the personal appear- ject to the provisions of Article 31(a), UCMJ ance of the witness, when balanced against (10 U.S.C.). the practical difficulties in producing the (2) At any time during the proceedings, the witness, favors production of the witness. respondent or counsel may submit written or Factors to be considered in relation to the recorded matter for consideration by the balancing test include, but are not limited Board. to, the cost of producing the witness, the (3) The respondent or counsel may call wit- timing of the request for production of the nesses in his or her behalf. witness, the potential delay in the proceed- (4) The respondent or counsel may question ing that may be caused by producing the wit- any witness who appears before the Board. ness, or the likelihood of significant inter- (5) The respondent or counsel may present ference with military operational deploy- argument prior to when the Board closes the ment, mission accomplishment, or essential case for deliberation on findings and rec- training. ommendations. (4) If the Convening Authority determines g. Findings and recommendations. (1) The that the personal testimony of a witness is Board shall determine its findings and rec- required, the hearing will be postponed or ommendations in closed session. Only voting continued if necessary to permit the attend- members of the Board shall be present. ance of the witness. (5) The hearing shall be continued or post- (2) The Board shall determine whether poned to provide the respondent with a rea- each allegation set forth in the notice of pro- sonable opportunity to obtain a written posed separation is supported by a prepon- statement from the witness if a witness re- derance of the evidence. quested by the respondent is unavailable in (3) The Board shall then determine under the following circumstances: the guidance in section A. of part 2 whether (a) When the presiding officer determines the findings warrant separation with respect that the personal testimony of the witness is to the reason for separation set forth in the not required; Notice. If more than one reason was con- (b) When the commanding officer of a mili- tained in the Notice, there shall be a sepa- tary witness determines that military neces- rate determination for each reason. sity precludes the witness’ attendance at the (4) The Board shall make recommendations hearing; or on the following: (c) When a civilian witness declines to at- (a) Retention or separation. The Board shall tend the hearing. recommend retention or separation. (6) Paragraph (5)(c), above, does not au- (b) Suspension of separation. If the Board thorize a Federal employee to decline to ap- recommends separation, it may recommend pear as a witness if directed to do so in ac- that the separation be suspended in accord- cordance with applicable procedures of the ance with section B. of part 2, but the rec- employing agency. ommendation of the Board as to suspension d. Record of proceedings. In cases where the is not binding on the Separation Authority. Board recommends separation, the record of (c) Characterization of service or description the proceedings shall be kept in summarized of separation. If separation or suspended sepa- form unless a verbatim record is required by ration is recommended, the Board shall rec- the Secretary concerned. In cases where the ommend a characterization of service or de- Board recommends retention, a record of the scription of separation as authorized in part proceedings is optional unless required by 1 (Reasons for Separation) in accordance the Secretary concerned. However, a summa- with the guidance in section C. of part 2. rized or verbatim record shall be prepared in (d) Transfer to the Ready Reserve. Except any cases where the board recommends re- when the Board has recommended separation tention and the Separation Authority elects on the basis of homosexuality or has rec- to forward the matter to the Secretary con- ommended characterization of service Under cerned under subparagraph C.6.d.(2)(6). The Other Than Honorable Conditions, the Sec- Board reporter shall retain all materials nec- retary Concerned may authorize the Board essary to prepare a transcript should the to make a recommendation as to whether Separation Authority elect to forward the the respondent should be retained in the case to the Secretary. In all cases, the find- Ready Reserve as a mobilization asset to ful- ings and recommendations of the Board shall fill the respondent’s total military obliga- be in verbatim form. tion. This option applies to cases involving

102 Office of the Secretary of Defense Pt. 41, App. A separation from active duty or from the Se- (b) Approve the Board’s recommendation, lected Reserve. Section E. of this part 3 is but modify the recommendations by one or applicable if the action is approved. more of the following actions when appro- 6. Separation Authority. A. The separation priate: Authority for actions initiated under the Ad- 1 Approve the separation but suspend exe- ministrative Board Procedure shall be a gen- cution as provided in section B. of part 2. eral court-martial convening authority or 2 Change the character of service or de- higher authority. The Secretary concerned scription of separation to a more favorable also may authorize a commanding officer in characterization or description. grade 0–7 or above with a judge advocate or 3 Change the Board’s recommendation, if legal advisor available to his command to any, concerning transfer to the IRR. act as a separation authority in specified cir- (c) Disapprove the Board’s recommenda- cumstances. When an Administrative Board tion and retain the respondent. recommends characterization of service as (4) If the Separation Authority approves Honorable or General (under honorable con- the Board’s findings and recommendations in ditions), the Separation Authority may be whole or in part with respect to more than exercised by an officer designated under sub- one reason under part 1, the Separation Au- section B.4. When the case has been initiated thority shall designate the most appropriate under the Notification Procedure and the basis as the primary reason for reporting hearing is a result of a request under para- purposes. graph B.1.g., the Separation Authority shall (5) If the Separation Authority finds legal be as designated in subsection B.4. prejudice to a substantial right of the re- b. In every case in which characterization spondent or determines that the findings of of sevice Under Other Than Honorable Condi- the Board have been obtained by fraud or collusion, the case may be referred to a new tions is recommended, the record of the board. No member of the new board shall Board’s proceedings will be reviewed by a have served on a prior board that considered judge advocate or civilian attorney em- the case. The Separation Authority may not ployed by the Military Department prior to approve findings and recommendations less action by the Separation Authority. Such re- favorable to the respondent than those ren- view is not required when another character- dered by the previous board unless the Sepa- ization is recommended unless the respond- ration Authority finds that fraud or collu- ent identifies specific legal issues for consid- sion in the previous board is attributable to eration by the Separation Authority. the respondent or an individual acting on the c. The respondent will be provided with a respondent’s behalf. copy of the Board’s statement of facts and D. Additional Provisions Concerning Members recommendations. Confined by Civil Authorities. 1. If proceedings d. The Separation Authority shall take ac- under this part have been initiated against a tion in accordance with this subparagraph, respondent confined by civil authorities, the the requirements of part 1 with respect to case may be processed in the absence of the the reason for separation, and the guidance respondent. Paragraph C.5.e. of this part 3 is in part 2 on separation and characterization. not applicable except insofar as such rights (1) If the Separation Authority approves can be exercised by counsel on behalf of the the recommendations of the Board on the respondent. issue of separation or characterization (or 2. The following requirements apply: both) this constitutes approval of the a. The notice shall contain the matter set Board’s findings and recommendations under forth in subsection B.1. of this part or subparagraph C.5.g. unless the Separation Au- section C.1. (Notice in the Administrative thority expressly modifies such findings or Board Procedure), as appropriate. The notice recommendations. shall be delivered personally to the respond- (2) If the Board recommends retention, the ent or sent by registered mail or certified Separation Authority may take one of the mail, return receipt requested (or by an following actions: equivalent form of notice if such service is (a) Approve the recommendation. not available for delivery by U.S. mail at an (b) Forward the matter to the Secretary address outside the United States). If the concerned with a recommendation for sepa- member refuses to acknowledge receipt of ration based upon the circumstances of the notice, the individual who mails the notifi- case. In such a case, the Secretary may dication shall prepare a Sworn Affidavit of rect retention or separation. If the Secretary Service by Mail (see 32 CFR part 100) [DoD approves separation, the characterization of Directive 1215.13], which will be inserted in service or description of separation will be the member’s personnel file together with Honorable, General (under honorable condi- PS Form 3800. tions) or an Entry Level Separation under b. If delivered personally, receipt shall be the guidance in section C. of part 2. acknowledged in writing by the respondent. (3) If the Board recommends separation, If the respondent does not acknowledge re- the Separation Authority may: ceipt, the notice shall be sent by mail as pro- (a) Approve the Board’s recommendation; vided in paragraph 2.a., above.

103 Pt. 41, App. A 32 CFR Ch. I (7–1–97 Edition)

c. The notice shall state that the action point notwithstanding the member’s years of has been suspended until a specific date (not service. less than 30 days from the date of delivery) 4. If the member does not submit such in- in order to give the respondent the oppor- formation on or before the date specified in tunity to exercise the rights set forth in the the notice, no further proceedings are re- notice. If respondent does not reply by such quired. The character of discharge at the date, the separation authority shall take ap- completion of the military service obligation propriate action under subsection B.4. of this shall be the same as the character of service part 3. upon transfer from the Selected Reserve to d. The name and address of the military the IRR. counsel for appointed consultation shall be 5. The following requirements apply to the specified in the notice. notices required by subsections E.1. and E.2. e. If the case involves entitlement to an of this part 3. Administrative Board, the respondent shall a. Reasonable effort should be made to fur- be notified that the board will proceed in the nish copies of the notice to the member respondent’s absence and that the case may through personal contact by a representative be presented on respondent’s behalf by coun- of the command. In such a case, a written ac- sel for the respondent. knowledgment of the notice shall be ob- E. Additional Requirements for Certain Mem- tained. bers of Reserve Components. 1. Members of re- b. If the member cannot be contacted or reserve components not on active duty. a. If pro- fuses to acknowledge receipt of the notice, ceedings under this chapter have been initi- the notice shall be sent by registered or cer- ated against a member of a reserve compo- tified mail, return receipt requested (or by an equivalent form of notice if such service nent not on active duty, the case may be by U.S. Mail is not available for delivery at processed in the absence of the member in an address outside the United States) to the the following circumstances: most recent address furnished by the mem- (1) At the request of the member; ber as an address for receipt or forwarding of (2) If the member does not respond to the official mail. The individual who mails the notice of proceedings on or before the sus- notification shall prepare a Sworn Affidavit pense date provided therein; or of Service by Mail (see 32 CFR part 100 (DoD (3) If the member fails to appear at a hear- Directive 1215.13)), which will be inserted in ing as provided in paragraph C.1.1. the member’s personnel file together with b. The notice shall contain the matter set PS Form 3800. forth in subsections B.1. or C.1. of this part F. Additional Requirements for Members Be- 3, as appropriate. yond Military Control by Reason of Unauthor- c. If the action involves a transfer to the ized Absence. 1. Determination of applicability. IRR under circumstances in which the proce- If the general court-martial convening au- dures in this Appendix A are applicable, the thority or higher authority determines that member will be notified that the character separation is otherwise appropriate under of service upon transfer to the IRR also will this part, a member may be separated with- constitute the character of service upon dis- out return to military control in one or more charge at the completion of the military of the following circumstances: service obligation unless specified conditions a. Absence without authority after receiv- established by the Secretary concerned are ing notice of initiation of separation process- met. ing. 2. Transfer to the IRR. Upon transfer to the b. When prosecution of a member who is IRR, the member will be notified of the fol- absent without authority appears to be lowing: barred by the statute of limitations, Article a. The character of service upon transfer 43, UCMJ. from active duty or the Selected Reserve to c. When a member who is an alien is absent the IRR, and that the character of service without leave and appears to have gone to a upon completion of the military service obli- foreign country where the United States has gation will be the same unless specified con- no authority to apprehend the member under ditions established by the Secretary con- a treaty or other agreement. cerned are met. 2. Notice. Prior to execution of the separa- b. The date upon which the military serv- tion under paragraphs 1.b. or 1.c., the mem- ice obligation will expire. ber will be notified of the imminent action c. The date by which the member must by registered mail or certified mail, return submit evidence of satisfactory completion receipt requested (or by an equivalent form of the specified conditions. of Notice if such service by U.S. Mail is not 3. If the member submits evidence of com- available for delivery at an address outside pletion of the specified conditions but the the United States) to the member’s last Military Department proposes to issue a dis- known address or the next of kin under regu- charge other than an Honorable Discharge, lations prescribed by the Military Depart- the Notification Procedure shall be used. An ment concerned. The notice shall contain the Administrative Board is not required at this matter set forth in subsections B.1. or C.1.,

104 Office of the Secretary of Defense § 42.3 as appropriate, and shall specify that the action of its provisions in any particular tion has been suspended until a specific date geographical area abroad. (not less than 30 days from the date of mailing) in order to give the respondent the op- § 42.3 Policy. portunity to return to military control. If the respondent does not return to military (a) The interception of wire and oral control by such date, the separation author- communications for law enforcement ity shall take appropriate action under sub- purposes is prohibited unless conducted section B.4. of this part 3. in accordance with this part and appli- 3. Members of reserve components. See 10 cable law. U.S.C 1163 with respect to limitations on separation of members of reserve components. (b) The only DoD components authorized to intercept wire and oral commu- [47 FR 10174, Mar. 9, 1982, as amended at 52 nications and conducts pen register op- FR 46997, Dec. 11, 1987] erations under this part are the De- partments of the Army, Navy, and Air PART 42—INTERCEPTION OF WIRE Force. Within these components, au- AND ORAL COMMUNICATIONS thority to use this technique shall be FOR LAW ENFORCEMENT PUR- limited to those offices specifically POSES designated in writing by the head of the component. Sec. (c) Interception of wire and oral com- 42.1 Reissuance and purpose. munications is a special technique 42.2 Applicability and scope. which shall not be considered as a sub- 42.3 Policy. stitute for normal investigative proce- 42.4 Waivers. dures and shall be authorized only in 42.5 Responsibilities. those circumstances where it is dem- 42.6 Definitions. onstrated that the information is nec- 42.7 Procedures, record administration and essary for a criminal investigation and reports. cannot reasonably be obtained in some 42.8 Information to be included in reports of other, less intrusive manner. interceptions and pen register operations. (d) Nonconsensual interception of wire and oral communications is pro- AUTHORITY: 5 U.S.C. 301. hibited unless there exists probable SOURCE: 43 FR 39988, Sept. 8, 1978, unless cause to believe that: otherwise noted. (1) In the case of interceptions within the United States, a criminal offense § 42.1 Reissuance and purpose. listed in 18 U.S.C. 2516(1) has been, is This part reissues part 42 to update being, or is about to be committed; established policies, procedures, and (2) In the case of interceptions abroad restrictions governing interception of conducted pursuant to an order issued wire and oral communications and the by a military judge under use of pen registers and related devices § 42.7(a)(1)(ii)(A), one of the following for law enforcement purposes, both in violations of the Uniform Code of Mili- the United States and abroad, in ac- tary Justice has been, is being, or is cordance with 47 U.S.C. 605 and 18 about to be committed by a person sub- U.S.C. 2510–2520. ject to the Uniform code of Military Justice under article 2, 10 U.S.C. 802: § 42.2 Applicability and scope. (i) The offense of murder, kidnap- (a) The provisions of this part apply ping, gambling, robbery, bribery, extor- to the Office of the Secretary of De- tion, espionage, sabotage, treason, fense, the military departments, the fraud against the Government, or deal- Organization of the Joint Chiefs of ing in narcotic drugs, marihuana, or Staff, the defense agencies, and the other dangerous drugs; or unified and specified commands (here- (ii) Any other offense dangerous to after referred to collectively as ‘‘DoD life, limb, or property, and punishable components’’). by death or confinement for 1 year or (b) This part does not affect status of more; or forces or other specific agreements (iii) Any conspiracy to commit any of that may otherwise limit implementa- the foregoing offenses.

105 § 42.4 32 CFR Ch. I (7–1–97 Edition)

(3) In the case of other interceptions § 42.5 Responsibilities. abroad, one of the following offenses (a) The Department of Defense Gen- has been, is being, or is about to be eral counsel or a single designee, shall: committed: (1) Determine whether to approve or (i) An offense listed in 18 U.S.C. deny requests for authorization to con- 2516(1); or duct nonconsensual interceptions (ii) Fraud against the Government or under this part (§ 42.7(a)(1) (i) and (ii)). any other offense dangerous to life, (2) Determine whether to seek Attor- limb, or property and punishable under ney General authorization for emer- title 18 of the U.S. Code by death or gency nonconsensual interceptions confinement for more than 1 year; or (§ 42.7(a)(1)(iii)). (iii) Any conspiracy to commit any of (3) In the absence of the Secretary of the foregoing offenses. the military department concerned, or (e) Consensual interceptions of wire a designee, determine whether to ap- and oral communications shall be un- prove or deny requests to conduct con- dertaken only when at least one of the sensual interceptions (§ 42.7(a)(2)(i)). parties to the conversation has con- (4) Provide overall policy guidance sented to the interception and when for the implementation of this part. the investigation involves: (b) The Assistant Secretary of De- fense (Comptroller) (ASD(C)), or a des- (1) A criminal offense punishable, ignee, shall: under the United States Code or Uni- (1) In consultation with the DoD Gen- form Code of Military Justice, by death eral Counsel, act for the Secretary of or confinement for 1 year or more; or Defense to insure compliance with the (2) A telephone call involving obscen- provisions of this part. ity, harassment, extortion, bribery, (2) Receive, process, and transmit to bomb threat, or threat of bodily harm the DoD General Counsel all requests that has been made to a person author- from the heads of the DoD components, ized to use the telephone of a sub- or their designees, for authority to scriber-user on an installation, build- conduct nonconsensual interception of ing, or portion thereof, under Depart- wire and oral communications. ment of Defense jurisdiction or control, (3) Furnish to the Attorney General and when the subscriber-user has also those reports required by § 42.7(f)(1) and consented to the interception. provide a copy of such reports to the (f) The prohibitions and restrictions DoD General Counsel. of this part apply regardless of the offi- (4) Receive those reports required by cial use or dissemination of the inter- § 42.7(f)(1) and provide a copy of such re- cepted information. Any questions as ports to the DoD General Counsel. to whether the use of a particular de- (c) The head of each DoD component vice may involve prohibited wire or or a designee shall insure compliance oral interception shall be submitted with the policies and procedures set with supporting facts through channels forth or referenced in this part. to the general counsel of the Depart- (d) The secretary of each military de- ment of Defense for resolution. partment, or a designee, shall: (g) No otherwise privileged wire or (1) Determine whether to approve or oral communication intercepted in ac- deny requests to conduct consensual interceptions (§ 42.7(a)(2)(i)). This ap- cordance with this part shall lose its proval authority shall not be delegated privileged character. to an official below the level of assist- § 42.4 Waivers. ant secretary or assistant to the secretary of the military department. Waivers of the requirements enun- (2) Review requests for nonconsen- ciated in this part will be authorized sual interception of wire or oral com- on a case-by-case basis only when di- munications (§ 42.7(a)(1)). rected in writing by the Secretary of (3) Designate a control point of con- Defense. Waivers will be authorized tact and so advise the DoD General only under the most limited cir- Counsel and the ASD(C) for: cumstances and when consistent with (i) Interception activities and related applicable law. applications covered by this part.

106 Office of the Secretary of Defense § 42.6

(ii) Compilation of reports and for- authorizing a wire or oral interception warding other submissions to the or a pen register operation. ASD(C) as required by the provisions of (e) Electronic, mechanical, or other de- this part. vice. Any device or apparatus that can (iii) Maintaining a file of information be used to intercept a wire or oral com- regarding all interceptions of wire and munication other than any telephone oral communications by any element equipment furnished to the subscriber of the Department. or user by a communications common (4) Furnish to the ASD(C) the reports carrier in the ordinary course of its required by § 42.7(f)(2). business and used by the subscriber or (e) The judge advocate general of user in the ordinary course of its busi- each military department shall assign ness or used by an investigative or law military judges, certified in accordance enforcement officer in the ordinary with the provisions of article 26(b) of course of duty (18 U.S.C. 2510(5)). the Uniform Code of Military Justice, (f) Interception. The aural acquisition 10 U.S.C. 826(b): of the contents of any wire or oral (1) To receive applications for inter- communication through the use of any cept authorization orders and to deter- electronic, mechanical, or other device mine whether to issue such orders in (18 U.S.C. 2510(4)). The term ‘‘contents’’ accordance with § 42.7(a)(1)(ii)(A). The includes any information concerning authorization of such military judges the identity of the parties to such com- to issue intercept authorization orders munication or the existence, sub- shall be limited to interceptions occur- stance, purport, or meaning of that ring abroad and targeted against per- communication (18 U.S.C. 2510(8)). sons subject to the Uniform Code of (g) Oral communication. Any oral com- Military Justice. munication uttered by a person exhib- (2) To receive applications to conduct iting an expectation that such commu- pen register operations and to issue or- nication is not subject to interception, ders authorizing such operations in ac- under circumstances justifying such cordance with § 42.7(b)(1). The author- expectation (18 U.S.C. 2510(2)). ity of such military judges to issue or- (h) Pen register. A device connected to ders authorizing pen register oper- a telephone instrument or line that ations shall be limited to operations permits the recording of telephone conducted on a military installation numbers dialed from a particular tele- and targeted against persons subject to phone instrument. ‘‘Pen register’’ also the Uniform Code of Military Justice. includes decoder devices used to record the numbers dialed from a touch-tone § 42.6 Definitions. telephone. ‘‘Pen register’’ does not in- (a) Abroad. Outside the United clude equipment used to record the States. An interception takes place numbers dialed for and duration of abroad when the interception device is long-distance telephone calls when the located and operated outside the Unit- equipment is used to make such ed States and the target of the inter- records for an entire telephone system ception is located outside the United and for billing or communications States. management purposes. (b) Application for court order. A docu- (i) Telephone tracing. A technique or ment containing specified information procedure to determine the origin, by prepared for and forwarded to a judge telephone number and location, of a of the U.S. district court or the U.S. telephone call made to a known tele- court of appeals, or a military judge. phone instrument. The terms ‘‘lock- (c) Consensual interception. An inter- out’’ and ‘‘trapping’’ may also be used ception of a wire or oral communica- to describe this technique. tion after verbal or written consent for (j) United States. For the purposes of the interception is given by one or this part, the term ‘‘United States’’ in- more of the parties to the communica- cludes the 50 States of the United tion. States, the District of Columbia, the (d) Court order. An order issued by a Commonwealth of Puerto Rico, and judge of a U.S. district court or a U.S. any territory or possession of the Unit- court of appeals or by a military judge ed States.

107 § 42.7 32 CFR Ch. I (7–1–97 Edition)

(k) United States person. For purposes (iii) A description of the type of com- of this part the term ‘‘U.S. person’’ munication sought to be intercepted means a United States citizen, an alien with a statement of the relevance of admitted to the United States for per- that communication to the investiga- manent residence, a corporation incor- tion; and porated in the United States, an unin- (iv) The identity of the person, if corporated association organized in the known, committing the offense and United States and substantially com- whose communications are to be inter- posed of United States citizens or cepted; aliens admitted to the United States (3) A statement as to whether other for permanent residence. investigative procedures have been (l) Wire communication. Any commu- tried and failed or why they reasonably nication made in whole or in part appear to be unlikely to succeed if through the use of facilities for the tried or to be too dangerous; transmission of communications by the (4) An identification of the type of aid of wire, cable, or other like connec- equipment to be used to make the tion between the point of origin and interception; the point of reception furnished or op- (5) A statement of the period of time erated by any person engaged as a com- for which the interception is required mon carrier in providing or operating to be maintained. If the nature of the such facilities for the transmission of investigation is such that the intercep- interstate or foreign communications. tion will not terminate automatically 18 U.S.C. 2510(1). when the described type of communica- § 42.7 Procedures, record administration has been first obtained, a description and reports. tion of the facts establishing probable cause to believe that additional com- (a) Procedures governing interception of munications of the same type will wire and oral communications—(1) Non- occur thereafter; consensual interception—(i) Nonconsen- sual interception in the United States. (6) The procedures to minimize the When an interception is deemed nec- acquisition, retention, and dissemina- essary for a criminal investigation, the tion of information unrelated to the following procedures are applicable: purpose of the interception; (A) The requesting component shall (7) A complete statement of the facts prepare and forward through channels concerning each previous application a ‘‘request for authorization’’ to the for approval of interceptions of wire or Assistant Secretary of Defense (Comp- oral communications known to the ap- troller), or an official designated by plicant and involving any of the same the ASD(C). This application shall be persons, facilities or places specified in transmitted by expeditious means and the application and the action taken protected to preclude unauthorized ac- thereon; and cess or any danger to the officials or (8) When the application is for an ex- other persons cooperating in the case. tension of an order, a statement set- Each request for authorization will ting forth the results thus far obtained contain the following information: from the interception, or an expla- (1) The identity of the DoD investiga- nation of the failure to obtain such re- tive or law enforcement official mak- sults. ing the application; (B) The ASD(C), or an official des- (2) A complete description of the ignated by the ASD(C), will rec- facts and circumstances relied upon by ommend to the DoD General Counsel the applicant to justify the intended that the request be approved or dis- interception, including: approved. Approval or disapproval of (i) The particular offense that has all requests for authorization will be been, is being, or is about to be com- made in writing by the DoD General mitted; Counsel, or a single designee. (ii) A description of the nature and (C) If the request is approved by the location of the facilities from which or DoD General Counsel, the official mak- the place where the communication is ing the request will coordinate directly to be intercepted; with an attorney from the Department

108 Office of the Secretary of Defense § 42.7 of Justice or from a U.S. Attorney’s of- service to receive applications for fice for preparation of documents nec- intercept authorization orders shall essary to obtain a court order in ac- have the authority to issue such or- cordance with 18 U.S.C. 2518. These doc- ders. The authority of military judges uments will be forwarded by the De- to issue intercept authorization orders partment of Justice attorney to the shall be limited to interceptions con- Attorney General, or to the designated ducted abroad and targeted against Assistant Attorney General, for ap- persons subject to the Uniform Code of proval in accordance with 18 U.S.C. Military Justice. 2516. (i) A military judge shall be ineli- (D) Upon approval by the Attorney gible to issue an order authorizing an General, or the designated Assistant interception if, at the time of applica- Attorney General, formal application tion, the judge (A) is involved in any for a court order will be made by the investigation under Article 32 of the appropriate attorney from the Depart- Uniform Code of Military Justice, 10 ment of Justice, assisted by the appro- U.S.C. 832; or (B) is engaged in any priate military lawyer. other investigative or prosecutorial (ii) Nonconsensual interceptions function in connection with any case; abroad. Unless otherwise authorized by or if the judge has previously been in- direction of the President or the Attor- volved in any investigative or prosecu- ney General, the following procedures torial activities in connection with the are applicable to interceptions for law case for which the intercept authoriza- enforement purposes when the inter- tion order is sought. ception takes place abroad and when a (ii) No military judge who has issued DoD component, or members thereof, an order authorizing interceptions may conduct or participate in the intercep- act as the accuser, be a witness for the tion; or when the interception takes prosecution, or participate in any in- place abroad, is targeted against a U.S. vestigative or prosecutorial activities person, and is conducted pursuant to a in the case for which the order was is- request by a DoD component: sued. A military judge who has issued (A) When the target of the intercep- an order authorizing interceptions is tion is a person subject to the Uniform not disqualified from presiding over Code of Military Justice under Article the trial in the same case. 2, U.S.C. 802. (iii) A military judge otherwise quali- (1) The request for authorization fied under § 42.7(a)(1)(ii)(C)(i) and (ii) en- shall include the information required closure shall not be disqualified from by paragraph (a)(1)(i)(A) of this sec- issuing orders authorizing interception, and shall be forwarded through tions because the judge is a member for channels to the Assistant Secretary of a service different from that of the tar- Defense (Comptroller), or the ASD(C)’s, get of the interception or from that of designee. The ASD(C), or a designee, the investigative or law enforcement shall recommend to the DoD General officers applying for the order. Counsel that the request be approved (4) The military judge may enter an or disapproved. Approval or dis- ex parte order, as requested or as modi- approval of all Requests for Authoriza- fied, authorizing or approving an inter- tion shall be made in writing by the ception of wire or oral communications DoD General Counsel, or a single des- if the judge determines on the basis of ignee. the facts submitted by the applicant (2) Upon written approval of the DoD that: General Counsel, the DoD investigative (i) There is probable cause to believe or law enforcement officer shall pre- that a person subject to the Uniform pare a formal application for a court Code of Military Justice is commit- order in accordance with the proce- ting, has committed, or is about to dures of 18 U.S.C. 2518(1). The applica- commit a particular offense enumer- tion shall be submitted to a military ated in § 42.3(d)(2); judge assigned to consider such appli- (ii) There is probable cause to believe cations pursuant to § 42.5(e). that particular communications con- (3) Only military judges assigned by cerning that offense will be obtained the Judge Advocate General of their through such interception;

109 § 42.7 32 CFR Ch. I (7–1–97 Edition)

(iii) Normal investigative procedures after the military judge makes the have been tried and have failed or rea- findings required by paragraph sonably appear to be unlikely to suc- (a)(1)(ii)(A)(4) of this section. The pe- ceed if tried or to be too dangerous; riod of extension shall be no longer (iv) There is probable cause to believe than is necessary to achieve the pur- that the facilities from which, or the pose for which it was granted and in no place where, the wire or oral commu- event for longer than 60 days. nications are to be intercepted are (8) The contents of communications being used, or are about to be used, in intercepted pursuant to an order issued connection with the commission of by a military judge shall, if possible, be such offense, or are leased to, listed in recorded on tape or wire or other com- the name of, or commonly used by such parable device. The recording of the person; and contents of such communications shall (v) The interception will not violate be done in such a way as will protect the relevant status of forces agreement the recording from editing or other al- or the applicable domestic law of the terations. Custody of the recording host nation. shall be wherever required by the regu- (5) Each order authorizing an inter- lations promulgated under paragraph ception shall specify: (e)(1) of this section and it shall not be (i) The identity of the person, if destroyed except pursuant to para- known, whose communications are to graph (e)(4) of this section. be intercepted; (9) The contents of a communication (ii) The nature and location of the intercepted abroad, or evidence derived communications facilities as to which, therefrom, shall be inadmissible in any or the place where, authority to inter- court-martial proceeding, in any pro- cept is granted; ceeding under Article 15 of the Uniform (iii) A particular description of the Code of Military Justice, 10 U.S.C. 815, type of communication sought to be or in any other proceeding if the: intercepted, and a statement of the (i) Communication was intercepted in particular offense to which it relates; violation of this part or applicable law; (iv) The identity of the agency au- (ii) Order of authorization under thorized to intercept the communica- which it was intercepted is insufficient tions, and of the person authorizing the on its face; or application; and (iii) Interception was not made in (v) The period of time during which conformity with the order of authoriza- such interception is authorized, includ- tion. ing a statement as to whether the (B) When the target of an intercep- interception shall terminate automati- tion conducted abroad is a person who cally when the described communica- is not subject to the Uniform Code of tion has been first obtained. Military Justice: (6) Every order and extension thereof (1) The request for authorization shall contain a provision that the au- shall be prepared and forwarded for ap- thorization to intercept shall be exe- proval in accordance with the proce- cuted as soon as practicable, shall be dures in paragraph (a)(1)(i) (A) and (B) conducted in such a way as to mini- of this section. mize the interception of communica- (2) The DoD General Counsel shall de- tions not otherwise subject to intercep- termine whether to approve the re- tion under this part, and shall be ter- quest and what further approval is re- minated upon attainment of the au- quired by law to conduct the intercep- thorized objective. tion. (7) No order entered by a military (iii) Emergency nonconsensual intercep- judge may authorize an interception tions in the United States and abroad. If, for any period longer than is necessary in the judgment of the head of the DoD to achieve the objective of the author- component concerned, or a designee, ization, nor in any event longer than 60 the emergency need for a nonconsen- days. Extensions of an order may be sual interception precludes obtaining granted, but only upon application for the advance written approval and court an extension made in accordance with order required by paragraph (a)(1) (i) the procedures of 18 U.S.C. 2518(1), and and (ii) of this section, the component

110 Office of the Secretary of Defense § 42.7 head or designee shall notify the DoD quest shall be made by the Secretary of General Counsel who shall determine a military department, or a designee, whether to seek the authorization of or, in their absence, the DoD General the Attorney General for an emergency Counsel. This approval authority shall nonconsensual interception in accord- not be delegated to an official below ance with the procedures of 18 U.S.C. the level of Assistant Secretary or As- 2518(7). sistant to the Secretary of a military (iv) Time limits. Nonconsensual inter- department. ceptions within the United States may (C) The Secretaries of the military be approved for a period not to exceed departments shall designate an official 30 days. Nonconsensual interceptions to act upon telephonic requests when outside the United States may be ap- emergency needs preclude advance proved for a period not to exceed 60 written approval. A written record of days. Renewal requests for specified pe- such requests shall be made. riods of not more than 30 days each (60 (ii) The following restrictions are ap- days for interceptions outside the Unit- plicable to all consensual interceptions ed States), may be submitted to the ap- of oral or wire communications: proving authority for consideration. (A) Within the United States, ap- The interception in all instances shall proval shall be granted for a period of be terminated as soon as the desired in- no more than 30 days. Abroad, approval formation is obtained, or when the may be granted for 60 days. Renewal interception proves to be nonproduc- requests for specified periods of not tive. more than 30 days each (60 days for (2) Consensual interceptions. (i) The interception outside the United States) following procedures are applicable to may be submitted to the approving au- all consensual interceptions of oral or thority for consideration. The intercep- wire communications: tion in all instances shall be termi- (A) When one of the parties to the nated as soon as the desired informa- conversation consents to an intended tion is obtained, or when the intercep- interception of a communication, the tion proves to be nonproductive. DoD investigative or law enforcement (B) The authorization for consensual official shall prepare a request contain- interception of communications shall ing the following information: define clearly the manner in which the (1) A description of the facts and cir- interception is to be accomplished. A cumstances requiring the intended ‘‘consensual interception’’ shall not in- interception, the means by which it volve the installation of equipment in would be conducted, the place in which violation of the constitutionally pro- it would be conducted, and its expected tected rights of any nonconsenting per- duration; son whose communications will be (2) The names of all the persons intercepted. whose conversations are expected to be (b) Procedures governing the use of pen intercepted and their roles in the crime registers and similar devices or tech- being investigated. When the name of niques. The procedures of this section the nonconsenting party or parties is apply to the use of pen registers, not known at the time the request is touch-tone telephone decoders, and made, the official making the request similar devices. Unless otherwise au- shall supply such information within 30 thorized by direction of the President days after termination of the intercep- or the Attorney General, pen register tion. If such information is not known and similar operations shall be con- at the end of this period, it shall be ducted only upon probable cause and supplied whenever it is later discov- pursuant to a court order. ered; (1) Operations conducted on a military (3) A statement that in the judgment installation and targeted against persons of the person making the request the subject to the Uniform Code of Military interception is warranted in the inter- Justice. Except as provided in est of effective law enforcement. § 42.7(b)(3), when a pen register oper- (B) An application for a court inter- ation is conducted on a military instal- ception order is not necessary in this lation, in the United States or abroad, situation. Written approval of the re- and when the target of the operation is

111 § 42.7 32 CFR Ch. I (7–1–97 Edition) a person subject to the Uniform Code of ation if it would violate the relevant Military Justice, the following proce- Status of Forces Agreement or the ap- dures apply: plicable domestic law of the host na- (i) The application for a court order tion. authorizing the operation shall be (2) Other pen register operations. (i) made in writing upon oath or affirma- When the target of a pen register oper- tion and shall be submitted to a mili- ation abroad is a person who is not sub- tary judge assigned by the Judge Advo- ject to the Uniform Code of Military cates General, pursuant to paragraph Justice: (f)(5) of this section, to receive such applications. An application shall include (A) The application for authority to the following information: conduct a pen register operation shall (A) The identity of the DoD inves- include the information in paragraph tigative or law enforcement officer (b)(1)(i) of this section and shall be for- making the application; warded to the DoD General Counsel. (B) A complete statement of the facts (B) The DoD General Counsel shall and circumstances relied upon by the determine whether to approve the re- application to justify the applicant’s quest and what further approval is re- belief that there exists probable cause quired by law to conduct the pen reg- to believe that the operation will ister operation. produce evidence of a crime, including (ii) Except as provided in paragraph a description of the particular offense (b)(3) of this section, all other pen reg- involved, a description of the nature ister and similar operations in the and location of the facilities from United States shall be conducted pur- which the intercepted information suant to a search warrant (or other ju- originates, and the identity of the person, if known, who has committed, is dicial order authorizing the operation) about to commit, or is committing the issued by a judge of competent juris- offense and who is the target of the op- diction. eration; (3) Pen register operations which in- (C) A statement of the period of time clude nonconsensual interceptions of wire for which the operation is required to communications. When an operation be maintained. under this section is to be conducted in (ii) Subject to the limitations of conjunction with a nonconsensual paragraph (a)(1)(ii)(C) (i), (ii), and (iii) interception of a wire communication of this section, a military judge as- under § 42.7(a)(1), procedures of signed to receive applications for or- § 42.7(a)(1) shall apply to the entire op- ders authorizing operations covered by eration. this subsection may enter an order au- (c) Procedures governing telephone thorizing the operation upon finding tracing. When prior consent of one or that the target of the operation is a more parties to a telephone tracing op- person subject to the Uniform Code of eration has been obtained, the use of Military Justice, that the operation will be conducted on a military instal- telephone tracing equipment and tech- lation, and that there exists probable niques shall be authorized only after cause to believe that the operation will coordination with appropriate judge produce evidence of a crime. Each advocate personnel or other component order shall specify the: legal counsel. The local military facil- (A) Identity of the person, if known, ity commander may approve consen- who is the target of the operation; sual telephone tracing operations on (B) Location of the facilities from military facilities. For use outside which the intercepted information military jurisdiction, the local mili- originates and of the facilities on tary commanders, in coordination with which the operation will take place; judge advocate personnel, shall coordi- (C) Period of time during which such nate with local civilian or host country operation is authorized. authorities when appropriate. In all (iii) When the application is for an operation conducted abroad, the military judge may not authorize the oper-

112 Office of the Secretary of Defense § 42.7 cases, use of this technique must com- primarily useful for, then the officials ply with the provisions of DoD direc- involved should, in the exercise of due tive 5200.27.1 caution, prohibit its sale pending refer- (d) Interception equipment—(1) Control ral to the DoD General Counsel for a of interception equipment. (i) DoD Com- determination as to the proper classi- ponents other than the military de- fication of such devices under the law. partments are not authorized to pro- (e) Records administration—(1) General. cure or maintain equipment primarily All recordings and records of informa- useful for the interception of wire and tion obtained through interception ac- oral communications described in this tivities conducted under the provisions part. The heads of military depart- of this part shall be safeguarded to pre- ments shall establish controls to insure clude unauthorized access, theft, or that only the minimum quantity of use. Both the interest of the Govern- interception equipment required to ac- ment and the rights of private individ- complish assigned missions is procured uals involved shall be considered in the and retained in inventories. development of safeguarding proce- (ii) Interception equipment shall be dures. The Secretaries of the military safeguarded to prevent unauthorized departments shall promulgate regula- access or use, with appropriate inven- tions specifying storage and access re- tory records to account for all equip- quirements for applications, orders, re- ment at all times. Storage shall be cen- cordings, and other records of informa- tralized to the maximum extent pos- tion obtained through interception ac- sible consistent with operational re- tivities. These regulations shall in- quirements. When equipment is with- clude provisions for storage and access drawn from storage a record shall be while the case is active and after the made as to the times of withdrawal and case has become inactive and the of its return to storage. Equipment records have been transferred to a cen- should be returned to storage when not tralized facility. Copies of all issuances in actual use, except to the extent that and revisions shall be provided to the returning the equipment would inter- DoD General Counsel and the ASD(C) fere with its proper utilization. The in- as promulgated. dividual to whom the equipment is as- (2) Indexing—(i) Interceptions. The signed shall account fully, in a written records of consensual and nonconsen- report, for the use made of the equip- sual interceptions shall be prepared ment during the time it was removed and maintained to provide for central- from storage. Copies of the completed ized, readily accessible records or indi- inventories of equipment, the times of ces that include the following: withdrawal and return and the written (A) Names, citizenship, and other reports of the agents specifying the available identifying data for each rea- uses made of the equipment shall be re- sonably identifiable person intercepted tained for at least 10 years. (intentionally or otherwise), whether a (2) Disposal of interception equipment. case subject or not. If available, the so- (i) Federal law prohibits the sale or cial security account number and the possession of any device by any person date and place of birth of the individ- who knows or has reason to know that uals intercepted and identified; ‘‘the design of such device renders it (B) The telephone numbers of radio primarily useful for the purpose of the telephone call signs involved in the surreptitious interception of wire or interception; oral communications * * *.’’ Accord- (C) The case number or other identi- ingly, disposal outside the Government fier for the interception; of such interception equipment is pro- (D) The address of the location of the hibited. interception; (ii) If there is any question as to (E) The inclusive dates of the inter- what purpose an item of equipment is ception. (ii) Denied interception applications. 1 Copies may be obtained, if needed, from Records of all applications submitted the U.S. Naval Publications and Forms Cen- to and disapproved by a Federal or ter, 5801 Tabor Ave., Philadelphia, Pa. 19120, military judge for authorization to attention code 301. conduct a nonconsensual interception

113 § 42.7 32 CFR Ch. I (7–1–97 Edition) of a wire or oral communication shall poses shall be provided the DoD Gen- be prepared and maintained in a sepa- eral Counsel and the ASD(C) as pro- rate, centralized index which shall in- mulgated. clude the following information: (4) Retention and disposition of records. (A) Names and other available identi- Records and recordings of interception fying data for each reasonably identifi- shall be retained for 10 years after terable target of the interception applied mination of the interception and then for; disposed of in accordance with compo- (B) The telephone numbers or radio nent records retirement procedures. If telephone call signs involved in the ap- the interception was conducted in the plication; United States under the provisions of (C) The address of the location of the 18 U.S.C. 2516, the records may be de- interception applied for; stroyed only pursuant to order of the (D) The case number or other identi- court involved. fier for the application; and (E) A statement of the other facts (f) Reports—(1) By the Assistant Sec- concerning the application and the rea- retary of Defense (Comptroller). The son that the application was refused. ASD(C), or a designee, shall submit the (3) Dissemination controls. (i) The following reports to the Attorney Gen- index and records maintained pursuant eral: to paragraph (e)(2)(ii) of this section, (i) Quarterly. For the quarters ending shall be used only as required to satisfy in March, June, September, and De- the requirements of 18 U.S.C. 2518(1)(e), cember, to be submitted by the end of paragraph (a)(1)(i)(A)(7), (a)(1)(ii) (A) each following month, a report of all and (B) (statement of prior applica- consensual interceptions of oral com- tions) and (f) (1) and (2) of this section. munications by DoD components in the (ii) In all cases, access to information United States and abroad. This report obtained by interception activities shall specify for each interception the conducted under the provisions of this means by which the interception was part shall be restricted to those indi- conducted, the place in which it was viduals having a defined need-to-know conducted, its duration, and the use clearly related to the performance of made of the information acquired. This their duties. report shall also contain the names and (iii) The information may be dissemi- positions of persons authorized to ap- nated outside the Department of De- prove consensual interceptions of oral fense only when: communications, including those per- (A) Required for the purposes de- sons authorized to approve emergency, scribed in 18 U.S.C. 2517; telephonic requests. (B) Required by law (including the (ii) Annually. (A) By January 31, a re- Privacy Act of 1974, as amended, and port of all nonconsensual interceptions the Freedom of Information Act of of wire or oral communications con- 1967, as amended, or order of a Federal ducted for investigative or law enforce- court; ment purposes abroad by DoD compo- (C) Requested by a committee of the nents during the preceding year and of Congress and approved for release by the DoD General Counsel; or all unsuccessful applications for orders (D) Required by the provisions of to conduct such interceptions during Status of Forces or other international the preceding year. This report shall agreements. contain the information required in 18 (iv) Secretaries of the military de- U.S.C. 2519(2). partments shall promulgate regula- (B) By July 31, an inventory of all tions, policies and procedural controls DoD electronic or mechanical equip- and designate responsible officials for ment primarily useful for interception both internal and external dissemina- of wire or oral communications. tion of the information described (2) By the Secretaries of the military de- above. Procedures shall include suffi- partments. The Secretaries of the mili- cient records reflecting dissemination tary departments, or their designees, of this information. Copies of all shall submit the following reports to issuances and revisions for these pur- the ASD(C):

114 Office of the Secretary of Defense § 42.8

(i) Quarterly. For the quarters ending (13) State where tapes, transcripts, in March, June, September, and De- and notes are stored. cember, to be received by the 15th day (14) Evaluation of results of oper- of each following month, a report of all ations, including the use made of the interceptions of wire and oral commu- information in subsequent investiga- nications, pen register operations, and tion or prosecution. unsuccessful applications for non- (15) The names and positions of per- consensual interceptions conducted by sons authorized to approve consensual the military departments in the United interceptions, including those persons States and abroad. This report shall in- authorized to approve emergency, tele- clude the information listed in § 42.8. phonic requests. (ii) Annually. By July 15, a complete (16) Indicate whether the intercep- inventory of all devices in the DoD tion took place in the United States or component that are primarily useful abroad. for interception of wire or oral communications or for operations covered by (b) Nonconsensual interceptions in the paragraph (b) of this section. This re- United States. In addition to items in port shall include a statement that the § 42.8(a) (1)–(14), include the following: amount of equipment is being main- (1) Identity of court and judge who is- tained at the lowest level consistent sued the intercept authorization order with operational requirements. and date of order. (2) Nature and frequency of incrimi- § 42.8 Information to be included in re- nating communications intercepted ports of interceptions and pen reg- (specify dates and approximate dura- ister operations. tion of each communication). (a) Consensual interceptions. (1) Iden- (3) Nature and frequency of other tity of DoD component making this re- communications intercepted. port. (4) Number of persons whose commu- (2) Indicate whether the report is a nications were intercepted. Indicate wire or oral interception operation and number of U.S. persons known to have whether the interception included the been intercepted and whether such per- use of a pen register. (If more than one sons were targets or incidentals. operation is authorized, a separate (c) Nonconsensual interceptions abroad. entry should be made for each.) In addition to items in paragraphs (a) (3) Purpose or objective of operation. (1)–(14) and (b) (1)–(4) of this section, in- Specify offense being investigated and clude the following: included a brief synopsis of the case. (1) Number of persons located in the (4) Investigative case number or iden- United States whose communications tifier for the operation. were intercepted. (5) Location of the operation. (6) Type of equipment used and meth- (2) In the report for the last quarter od of installation. of each calendar year, include: (7) Identity of the performing organi- (i) The number of arrests and trials zational unit. (Indicate if the intercep- resulting from each interception con- tion was conducted for a DoD compo- ducted during the year. Indicate the of- nent other than the component making fense for each interception. the report or for a non-DoD activity.) (ii) The number of convictions result- (8) Identity of DoD investigative or ing from the interceptions conducted law enforcement officer who requested during the year and the offenses for or applied for the interception. which convictions were obtained. (9) Approval authority and date of (d) Pen register operations. Pen reg- approval. ister operations conducted in conjunc- (10) Length and dates for which oper- tion with nonconsensual interceptions ation was approved. should be included in § 42.8 (a) and (b). (11) Actual date operation was initi- For all other pen register operations ated, and date terminated. include items (1)–(15) from § 42.8(a), (12) If operation was extended, state items (1)–(4) from § 42.8(b), and indicate name of authority approving extension whether the operation was conducted and dates to which extended. in the United States or abroad.

115 § 43.1 32 CFR Ch. I (7–1–97 Edition)

(e) Unsuccessful applications for non- (a) Consolidates into a single docu- consensual interception authorization or- ment parts 43 and 276 of this title and ders. (1) Identity of applying organiza- update DoD policies and procedures tional unit. (Indicate if the application governing personal commercial solici- was on behalf of a DoD component tation and insurance sales on DoD in- other than the component making the stallations. report or on behalf of a non-DoD activ- (b) Continues the established annual ity.) DoD accreditation requirements for (2) Investigative case number or iden- life insurance companies operating in tifier for the application. overseas areas where neither Federal (3) Identity of applying DoD inves- nor State consumer protection regula- tigative or law enforcement officer. tions apply. (4) Approval authority and date of approval of DoD request. § 43.2 Applicability and scope. (5) Identity of judge who denied the (a) This part applies to the Office of application and date of denial. the Secretary of Defense (OSD), the (6) Offense specified in the applica- Military Departments, the Organiza- tion. tion of the Joint Chiefs of Staff (OJCS), (7) Whether the application was for a the Unified Commands, and the De- wire or oral interception order, and fense Agencies (hereafter referred to whether the application was for an collectively as ‘‘DoD Components’’). interception in the United States or The term ‘‘Military Services,’’ as used abroad. herein, refers to the Army, Navy, Air (8) Purpose or object of the intercep- Force, Marine Corps, and Coast Guard. tion applied for. Include a brief synop- (b) The provisions of this part do not sis of the case. apply to services furnished by commer- (9) If the application was for an ex- cial companies, such as deliveries of tension, indicate the dates, duration, milk, laundry, and related residence and results of the previous intercep- services when such services are author- tion. ized by the DoD installation commander. (10) Specific location of the intercep- (c) Nothing in this part should be tion applied for. construed to preclude private, non- (11) Number of U.S. persons named as profit, tax-exempt organizations com- targets in the application. posed of active and retired members of (12) Reason why the application was the Military Services from holding denied. membership meetings which do not involve commercial solicitation on DoD PART 43—PERSONAL COMMERCIAL installations. Attendance at these SOLICITATION ON DoD INSTAL- meetings shall be voluntary and the LATIONS time and place of such meetings are subject to the discretion of the instal- Sec. lation commander or his or her des- 43.1 Reissuance and purpose. ignee. 43.2 Applicability and scope. [51 FR 7552, Mar. 5, 1986, as amended at 52 FR 43.3 Definitions. 25008, July 2, 1987] 43.4 Policy. 43.5 Responsibilities. § 43.3 Definitions. 43.6 Procedures. Agent. An individual who receives re- APPENDIX A TO PART 43—LIFE INSURANCE muneration as a salesperson or whose PRODUCTS AND SECURITIES APPENDIX B TO PART 43—THE OVERSEAS LIFE remuneration is dependent on volume INSURANCE ACCREDITATION PROGRAM of sales of a product or products. Association. Any organization, wheth- AUTHORITY: 5 U.S.C. 301. er or not the word ‘‘Association’’ ap- SOURCE: 51 FR 7552, Mar. 5, 1986, unless oth- pears in its title, composed of and serv- erwise noted. ing exclusively members of the Mili- tary Services on active duty, in a Re- § 43.1 Reissuance and purpose. serve status, in a retired status, and This part: their dependents, which officers its

116 Office of the Secretary of Defense § 43.6 members life insurance coverage, ei- § 43.4 Policy. ther as part of the membership dues, or It is the policy of the Department of as a separately purchased plan made Defense to safeguard and promote the available through an insurance carrier welfare of DoD personnel as consumers or the association as a self-insurer, or by setting forth a uniform approach to a combination of both. the conduct of all personal commercial DoD installation. Any Federally solicitation and sales to them by deal- owned, leased, or operated base, res- ers and their agents. ervation, post, camp, building, or other facility to which DoD personnel are as- § 43.5 Responsibilities. signed for duty, including barracks, (a) The Assistant Secretary of Defense transient housing, and family quarters. (Force Management and Personnel) DoD personnel. All active duty offi- (ASD(FM&P)) shall be responsible for cers (commissioned and warrant) and developing policies and procedures gov- enlisted members of the Military Serv- erning personal commercial solicita- ices and all civilian employees, includ- tion activities conducted on DoD in- ing nonappropriated fund employees stallations. and special Government employees of (b) The Heads of DoD Components, or all offices, agencies, and departments their designees, shall assure implemen- carrying on functions on a Defense in- tation of this Directive and compliance stallation. with its provisions. General agent. A person who has a § 43.6 Procedures. legal contract to represent a company solely and exclusively. (a) General. (1) No person has author- Insurance carrier. An insurance com- ity to enter upon a DoD installation pany issuing insurance through an as- and transact personal commercial solicitation as a matter of rights. Per- sociation or reinsuring or coinsuring sonal commercial solicitation will be such insurance. permitted only if the following require- Insurance product. A policy, annuity, ments are met: or certificate of insurance issued by an (i) The solicitor is duly licensed insurer or evidence of insurance cov- under applicable Federal, State, or mu- erage issued by a self-insured associa- nicipal laws and has complied with in- tion. stallation regulations in accordance Insurer. Any company or association with paragraph (c) of this section. engaged in the business of selling in- (ii) Personal commercial solicitation surance policies to DoD personnel. is permitted by the local installation Normal home enterprises. Sales or serv- commander. ices which are customarily conducted (iii) A specific appointment has been in a domestic setting and do not com- made with the individual concerned pete with an installation’s officially and conducted in family quarters or in sanctioned commerce. other areas designated by the installa- Securities. Mutual funds, stocks, tion commander. bonds, or any product registered with (2) Those seeking to transact per- the Securities and Exchange Commis- sonal commercial solicitation on over- sion except for any insurance or annu- seas installations shall be required to ity product issued by a corporation observe, in addition to the above, the subject to supervision by State insur- applicable laws of the host country and, upon demand, present documen- ance authorities. tary evidence to the installation com- The conduct of any pri- Solicitation. mander, or designee, that the company vate business, including the offering they represent, and its agents, meet and sale of insurance on a military in- the licensing requirements of the host stallation. Solicitation on installations country. is a privilege as distinguished from a (3) Organizations involved in sales right, and its control is a responsibility are permitted to display literature on vested in the DoD installation com- DoD installations in locations selected mander. by the commander.

117 § 43.6 32 CFR Ch. I (7–1–97 Edition)

(b) Life insurance products and securi- arranged appointment. During such ap- ties. (1) Life insurance products and se- pointment, the agent shall not be per- curities offered and sold to DoD person- mitted to display desk or other signs nel must meet the prerequisites de- announcing his or her name or com- scribed in Appendix A. pany affiliation. (2) Insurers and their agents are au- (v) The use of the ‘‘Daily Bulletin’’ or thorized to solicit on DoD installations any other notice, official or unofficial, provided they are licensed under the announcing the presence of an agent insurance laws of the State in which and his or her availability. the installation is located. In overseas (c) Supervision of on-base commercial areas, DoD Components shall limit this activities. (1) All pertinent installation authorization to those insurers accredited under the provisions of Appendix regulations shall be posted in a place B. easily accessible to those conducting (3) The conduct of all insurance busi- personal commercial solicitation ac- ness on DoD installations shall be by tivities on the installation. specific appointment. When establish- (2) When practicable, as determined ing the appointment, insurance agents by the installation commander, a copy must identify themselves to the proof the applicable installation regula- spective purchaser as an agent for a tions shall be given to those conduct- specific company. ing on-base commercial activities with (4) Installation commanders shall the warning that any infractions of the designate areas where interviews by regulations will result in the with- appointment may be conducted. Invita- drawal of solicitation privileges. tions to conduct interviews shall be ex- (d) Prohibited practices. The following tended to all agents on an equitable commercial solicitation practices shall basis. Where space and other consider- be prohibited on all DoD installations: ations limit the number of agents (1) Solicitation of recruits, trainees, using the interviewing area, the instal- and transient personnel in a ‘‘mass’’ or lation commander may develop and ‘‘captive’’ audience. publish local policy consistent with (2) Making appointments with or so- this concept. (5) Installation commanders shall liciting military personnel who are in make disinterested third-party coun- an ‘‘on-duty’’ status. seling available to DoD personnel de- (3) Soliciting without appointment in siring counseling. areas utilized for the housing or proc- (6) In addition to the solicitation pro- essing of transient personnel, in bar- hibitions contained in paragraph (d) of racks areas used as quarters, in unit this section, DoD Components shall areas, in family quarters areas, and in prohibit: areas provided by installation com- (i) DoD personnel from representing manders for interviews by appoint- any insurer, or dealing directly or indi- ment. rectly with any insurer or any recog- (4) Use of official identification cards nized representative of any insurer on by retired or reserve members of the the installation, as an agent or in any Military Services to gain access to DoD official or business capacity with or installations for the purpose of solicit- without compensation. ing. (ii) The use of an agent as a partici- (5) Procuring, or attempting to pro- pant in any Military Services-spon- cure, or supplying roster listings of sored insurance education or orienta- DoD personnel for purposes of commer- tion program. cial solicitation, except for releases (iii) The designation of any agent or the use by any agent of titles such as granted in accordance with DoD Direc- ‘‘Battalion Insurance Counselor,’’ tive 5400.7. ‘‘Unit Insurance Advisor,’’ ‘‘Service- (6) Offering unfair, improper, and de- men’s Group Life Insurance Conversion ceptive inducements to purchase or Consultant,’’ etc. trade. (iv) The assignment of desk space for (7) Using rebates to facilitate trans- interviews for other than a specific pre- actions or to eliminate competition.

118 Office of the Secretary of Defense § 43.6

(8) Using manipulative, deceptive, or the manner in which they are offered fraudulent devices, schemes, or arti- for sale. fices, including misleading advertising (iv) Knowing and willful violations of and sales literature. Pub. L. 90–321. (9) Using oral or written representa- (v) Personal misconduct by a compa- tions to suggest or give the appearance ny’s agent or representative while on that the Department of Defense spon- the installation. sors or endorses any particular com- (vi) The possession of or any attempt pany, its agents, or the goods, services, to obtain supplies of allotment forms and commodities it sells. used by the Military Departments, or (10) Full-time DoD personnel making possession or use of facsimiles thereof. personal commercial solicitations or (vii) Failure to incorporate and abide sales to DoD personnel who are junior by the Standards of Fairness policies in rank or grade as provided in DoD Di- contained in DoD Directive 1344.9.6 rective 5500.7 1. (11) Entering into any unauthorized (2) In withdrawing solicitation privi- or restricted area. leges, the commander shall determine (12) Using any portion of installation whether to limit it to the agent alone facilities, including quarters, as a or extend it to the company the agent showroom or store for the sale of goods represents. This decision shall be com- or services, except as specifically au- municated to the agent and to the thorized by DoD Directives 1330.9 2 and company the agent represents and 1330.17 3 and DoD Instructions 1330.18 4 shall be based on the circumstances of and 1000.15 5. This is not intended to the particular case, including, among preclude normal home enterprises, pro- others, the nature of the violations, viding applicable State and local laws frequency of violations, the extent to are complied with. which other agents of the company (13) Soliciting door to door. have engaged in such practices, and (14) Advertising addresses or tele- any other matters tending to show the phone numbers of commercial sales accompany’s culpability. tivities conducted on the installation, (i) Upon withdrawing solicitation except for authorized activities con- privileges, the commander shall ducted by members of military families promptly inform the agent and the residing in family housing. company the agent represents orally or (e) Denial and revocation of on-base so- in writing. licitation. (1) The installation com- (ii) If the grounds for the action in- mander shall deny or revoke permis- volve the eligibility of the agent or sion to a company and its agents to company to hold a State license or to conduct commercial activities on the meet other regulatory requirements, base if such action is in the best inter- the appropriate authorities will be no- ests of the command. The grounds for tified. taking this action shall include, but (iii) The commander shall afford the not be limited to, the following: individual or company an opportunity (i) Failure to meet the licensing and to show cause why the action should other regulatory requirements pre- not be taken. To ‘‘show cause’’ means scribed in paragraphs (a) and (b) of this an opportunity must be given for the section. grieved party to present facts on his or (ii) Commission of any of the prac- her behalf on an informal basis for the tices prohibited in paragraphs (b)(6) consideration of the installation com- and (d) of this section. mander. (iii) Substantiated complaints or ad- (iv) If warranted, the commander verse reports regarding quality of shall recommend to the Military De- goods, services, and commodities and partment concerned that the action taken be extended to other DoD instal- 1 Copies may be obtained, if needed, from lations. If so approved, and when ap- the US Naval Publications and Forms Center propriate, the Assistant Secretary of 5801 Tabor Avenue, ATTN: Code 301, Phila- delphia PA 19120. 2Ð5 See footnote 1 to paragraph (d)(10) of 6 See footnote 1 to paragraph (d)(10) of this this section. section.

119 Pt. 43, App. A 32 CFR Ch. I (7–1–97 Edition)

Defense (Force Management and Per- Act, insurance, Government benefits, sonnel) (ASD(FM&P)), following con- savings, and budgeting. The services of sultation with the Military Depart- representatives of credit unions, banks, ment concerned, shall order the action and those nonprofit military associa- extended to other Military Depart- tions (provided such associations are ments. not underwritten by a commercial in- (v) All denials or withdrawals of surance company) approved by the privileges will be for a set period of Military Departments may be used for time, at the end of which the individ- this purpose. Under no circumstances ual may reapply for permission to so- shall commercial agents, including rep- licit through the Military Department resentatives of loan, finance, insurance originally imposing the restriction. De- or investment companies, be used for nial or withdrawal of soliciting privi- this purpose. Educational materials leges may or may not be continued, as prepared or presented by outside orga- warranted. nizations expert in this field may, with (vi) When such denials or withdraw- appropriate disclaimers and permis- als are lifted, the Office of the sion, be adapted or used if approved by ASD(FM&P) shall be notified for par- the Military Department concerned. allel action if the same denial or with- Presentations by approved organiza- drawal has been extended to other Mili- tions shall only be conducted at the ex- tary Departments. press request of the installation com- (vii) The commanding officer may, if mander. circumstances dictate, make imme- (2) The Military Departments shall diate suspensions of solicitation privi- also make qualified personnel and fa- leges for a period of 30 days while an cilities available for individual coun- investigation is conducted. Exceptions seling on loans and consumer credit to this amount of time must be ap- transactions in order to encourage proved by the Military Department thrift and financial responsibility and concerned. promote a better understanding of the (3) Upon receipt of the information wise use of credit, as prescribed in DoD outlined above, the Secretaries of the Directive 1344.9.7 Military Departments may direct the (3) Military members shall be encour- Armed Forces Disciplinary Control aged to seek advice from a legal assist- Boards in all geographical areas in ance officer or their own lawyer before which the grounds for action have oc- making a substantial loan or credit curred to consider the charges and take commitment. appropriate action. (4) Each Military Department shall (f) Advertising policies. (1) The Depart- provide advice and guidance to mili- ment of Defense expects voluntary ob- tary personnel who have a complaint servance of the highest business ethics under Pub. L. 90–321 or who allege a both by commercial enterprises solicit- criminal violation of its provisions, in- ing DoD personnel through advertise- cluding referral to the appropriate reg- ments in unofficial military publica- ulatory agency for processing of the tions, and by the publishers of those complaint. publications in describing goods, services, and commodities, and the terms [51 FR 7552, Mar. 5, 1986, as amended at 52 FR 25008, July 2, 1987] of the sale (including guarantees, war- ranties, and the like). APPENDIX A TO PART 43—LIFE (2) The advertising of credit terms INSURANCE PRODUCTS AND SECURITIES shall conform to the provisions of Pub. L. 90–321 as implemented by Regulation A. LIFE INSURANCE PRODUCT CONTENT Z. PREREQUISITES (g) Educational programs. (1) The Mili- 1. Insurance products, other than certifi- tary Departments shall develop and cates or other evidence of insurance issued disseminate information and education by a self-insured association, offered and sold programs for members of the Military worldwide to personnel on DoD installations, Services on how to conduct their per- must: sonal commercial affairs, including such subjects as the Truth-in-Lending 7 See footnote 1 to § 43.6(d)(10).

120 Office of the Secretary of Defense Pt. 43, App. B

a. Comply with the insurance laws of the application and the certification of an allot- State or country in which the installation is ment. The purchaser’s commanding officer located and the procedural requirements of may grant a waiver of this requirement for this Directive. good cause, such as the purchaser’s immi- b. Contain no restrictions by reason of nent permanent change of station. military service or military occupational specialty of the insured, unless such restric- D. ASSOCIATION—GENERAL tions are clearly indicated on the face of the The recent growth and general accept- contract. c. Plainly indicate any extra premium ability of quasimilitary associations offering charges imposed by reason of military serv- various insurance plans to military person- ice or military occupational specialty. nel are acknowledged. Some associations are d. Contain no variation in the amount of not organized within the supervision of in- death benefit or premium based upon the surance laws of either a State or the Federal length of time the contract has been in force, Government. While some are organized for unless all such variations are clearly de- profit, others function as nonprofit associa- scribed therein. tions under Internal Revenue Service regula- 2. To comply with paragraphs A.1.b., c., tions. Regardless of the manner in which in- and d., above, an appropriate reference surance plans are offered to members, the stamped on the face of the contract shall management of the association is respon- draw the attention of the policyholder to sible for complying fully with the instruc- any extra premium charges and any vari- tions contained herein and the spirit of this ations in the amount of death benefit or pre- part. mium based upon the length of time the contract has been in force. APPENDIX B TO PART 43—THE OVERSEAS 3. Variable life insurance products may be LIFE INSURANCE ACCREDITATION offered provided they meet the criteria of PROGRAM the appropriate insurance regulatory agency and the Securities and Exchange Commis- A. ACCREDITATION CRITERIA sion. 4. Premiums shall reflect only the actual 1. Initial Accreditation. premiums payable for the life insurance a. Insurers must demonstrate continuous product. successful operation in the life insurance business for a period of not less than five B. SALE OF SECURITIES years on December 31 of the year preceding the date of filing the application. 1. All securities must be registered with the Securities and Exchange Commission. b. Insurers must be listed in Best’s Life- 2. All sales of securities must comply with Health Insurance Reports and be assigned a existing and appropriate Securities and Ex- rating of B+ (Very Good) or better for the change Commission regulations. business year preceding the Government’s 3. All securities representatives must apply fiscal year for which accreditation is sought. directly to the commander of the installa- 2. Reaccreditation. tion on which they desire to solicit the sale a. Insurers must demonstrate continuous of securities. successful operation in the life insurance 4. Where the accredited insurer’s policy business, as described in subsection A.1.a., permits, an overseas accredited life insur- above. ance agent—if duly qualified to engage in se- b. Insurers must retain a Best’s rating of curity activities either as a registered rep- B+ or better, as described in paragraph resentative of the National Association of A.1.b., above. Securities Dealers or as an associate of a c. Insurers must establish an agency sales broker or dealer registered with the Securi- force in one of the overseas commands with- ties and Exchange Commission—may offer in two years of initial accreditation. life insurance and securities for sale simulta- 3. Waiver Provisions. neously. In cases of commingled sales, the Waivers of the initial accreditation and re- allotment of pay for the purchase of securi- accreditation provisions will be considered ties cannot be made to the insurer. for those insurers demonstrating substantial compliance with the aforementioned cri- C. USE OF THE ALLOTMENT OF PAY SYSTEM teria. 1. Allotments of military pay for life insurance products shall be made in accordance B. APPLICATION INSTRUCTIONS 8 with DoD Directive 7330.1. 1. Applications Filed Annually. During the 2. For personnel in pay grades E–1, E–2, and months of May and June of each year insur- E–3, at least seven days shall elapse for coun- ers may apply for solicitation privileges for seling between the signing of a life insurance personnel assigned to U.S. military installations in foreign areas for the fiscal year be- 8 See footnote 1 to § 43.6(d)(10). ginning the following October 1.

121 Pt. 43, App. B 32 CFR Ch. I (7–1–97 Edition)

2. Application Prerequisites. A letter of ap- State law (or regulation) governing domicile plication, signed by the president, vice presi- requirements, or requiring that the agent’s dent, or designated official of the insurance company be licensed to do business in that company shall be forwarded to the Assistant State, forfeits eligibility for a State license. Secretary of Defense (Force Management The request for a waiver shall contain the and Personnel), Attention: Personnel Admin- name of the State or jurisdiction which istration and Services Directorate, would not renew the agent’s license. ODASD(MM&PP), The Pentagon, Washing- 2. General agents and agents shall rep- ton, DC 20301–4000. The letter shall contain resent only one accredited commercial insur- the information set forth below, submitted ance company. This requirement may be in the order listed. Where not applicable, so waived by the overseas commander if mul- state. tiple representation can be proven to be in a. The overseas commands (e.g., European, the best interest of DoD personnel. Pacific, Atlantic , Southern) where the com- 3. An agent must have at least one year of pany is presently soliciting, or planning to successful life insurance underwriting in the solicit on U.S. military installations. United States or its territories, generally b. A statement that the company has com- within the five years preceding the date of plied with, or will comply with, the applica- application, in order to be designated as ac- ble laws of the country or countries wherein credited and employed for overseas solicita- it proposes to solicit. ‘‘Laws of the country’’ tion. means all natural, provincial, city, or county 4. Appropriate overseas commanders shall laws or ordinances of any country, as appli- exercise further agent control procedures as cable. deemed necessary. c. A statement that the products to be of- 5. An agent, once accredited in an overseas fered for sale conform to the standards pre- area, may not change affiliation from the scribed in Appendix A and contain only the staff of one general agent to another and re- standard provisions such as those prescribed tain accreditation, unless the previous em- by the laws of the State where the compa- ployer certifies in writing that the release is ny’s headquarters are located. without justifiable prejudice. Unified com- d. A statement that the company shall as- manders will have final authority to deter- sume full responsibility for the acts of its mine justifiable prejudice. Indebtedness of agents with respect to solicitation. Sales an agent to a previous employer is an exam- personnel will be limited in numbers to one ple of justifiable prejudice. general agent and no more than 50 sales personnel for each overseas area. If warranted, D. ANNOUNCEMENT OF FINDINGS the number of agents may be further limited 1. Accreditation by the Department of de- by the overseas command concerned. fense upon annual applications of insurers e. A statement that the company will not shall be announced as soon as practicable by utilize agents who have not been accredited a notice to each applicant and by a listing by the appropriate overseas command to sell released annually in September to the appro- to DoD personnel on or off its DoD installa- priate overseas commander. This approval tions. does not constitute DoD endorsement of the f. Any explanatory or supplemental com- insurer. Any advertising by insurers which ments that will assist in evaluating the ap- suggests such endorsement is prohibited. plication. 2. In the event accreditation is denied, spe- g. If the Department of Defense requires cific reasons for such findings shall be sub- facts or statistics beyond those normally in- mitted to the applicant. volved in accreditation, the company shall a. Upon receipt of notification of an unfa- make separate arrangements to provide vorable finding, the insurer shall have 30 them. days from the receipt of such notification h. A statement that the company’s general (forwarded certified mail, return recipt re- agent and other accredited agents are ap- quested) in which to request reconsideration pointed in accordance with the prerequisites of the original decision. This request must be established in section C., below. accompanied by substantiating data or infor- 3. If a company is a life insurance company mation in rebuttal of the specific reasons subsidiary, it must be accredited separately upon which the adverse findings are based. on its own merits. b. Action by the Assistant Secretary of De- fense (Force Management and Personnel) on C. AGENT REQUIREMENTS appeal is final. Unified commanders shall apply the fol- c. If the applicant is presently accredited lowing principles: as an insurer, up to 90 days from final action 1. An agent must possess a current State on an unfavorable finding shall be granted in license. The overseas commander may waive which to close out operations. this requirement for an accredited agent 3. Upon receiving the annual letter of ac- continuously residing and successfully sell- creditation, each company shall send to the ing life insurance in foreign areas, who, applicable unified commander a verified list through no fault of his or her own, due to of agents currently accredited for overseas

122 Office of the Secretary of Defense § 44.3 solicitation. Where applicable, the company § 44.2 Applicability. shall also include the names of new agents for whom original accreditation and permis- This part applies to the Office of the sion to solicit on base is requested. Insurers Secretary of Defense and the Military initially accredited will be furnished instruc- Departments (including their reserve tions by the Department of Defense for agent components). The term ‘‘Military Serv- accreditation procedures in overseas areas. ices,’’ as used herein, refers to the 4. Material changes affecting the corporate Army, the Navy, the Air Force, the status and financial conditions of the com- Marine Corps, and the Coast Guard (by pany which may occur during the fiscal year of accreditation must be reported as they agreement with the Department of occur. Transportation). Reserve components a. The Department of Defense reserves the include the Army National Guard, the right to terminate accreditation if such ma- Army Reserve, the Naval Reserve, the terial changes appear to substantially affect Marine Corps Reserve, the Air National the financial and operational criteria de- Guard, the Air Force Reserve, and the scribed in section A., above, on which accred- Coast Guard Reserve. itation was based. b. Failure to report such material changes § 44.3 Definitions. can result in termination of accreditation regardless of how it affects the criteria. (a) Defense support industry. Any busi- 5. If an analysis of information furnished ness or corporation so determined by by the company indicates that unfavorable FEMA. trends are developing which may possibly ad- (b) Extreme community hardship. A sit- versely affect its future operations, the De- uation that, because a reservist is mo- partment of Defense may, at its option, bring such matters to the attention of the bilized, may have a substantially ad- company and request a statement as to what verse effect on the health, safety, or action, if any, is contemplated to deal with welfare of the community. Any request such unfavorable trends. for a determination of such hardship shall be made by the reservist and PART 44—SCREENING THE READY must be supported by documentation RESERVE as required by the Secretary of the Military Department concerned. (c) Extreme personal hardship. An ad- Sec. 44.1 Purpose. verse impact upon a reservist’s depend- 44.2 Applicability. ents resulting from his or her mobiliza- 44.3 Definitions. tion. Any request for a determination 44.4 Policy. of such hardship shall be made by the 44.5 Procedures. reservist and must be supported by 44.6 Responsibilities. documentation as required by the Sec- 44.7 Information requirements. retary of the Military Department con- APPENDIX A TO PART 44—LETTER FORMAT TO cerned. COGNIZANT RESERVE PERSONNEL CENTER (d) Key employee. Any Federal em- REQUESTING THAT EMPLOYEE BE REMOVED ployee occupying a key position. FROM THE READY RESERVE (e) Key position. A Federal position APPENDIX B TO PART 44—LIST OF RESERVE that cannot be vacated during a na- PERSONNEL CENTERS TO WHICH RESERVE tional emergency or mobilization with- SCREENING DETERMINATION AND REMOVAL out seriously impairing the capability REQUESTS SHALL BE FORWARDED of the parent Federal agency or office AUTHORITY: Title 10 U.S.C. 269, 271, 272, 652, to function effectively. There are three 672, 673, 674, 685, and 1005 and E.O. 11190. categories of Federal key positions. SOURCE: 49 FR 30067, July 26, 1984, unless The first two categories are, by defini- otherwise noted. tion, key positions. Only the final category requires a case-by-case deter- § 44.1 Purpose. mination and designation: This part updates and clarifies DoD (1) The Vice President of the United policy, procedures, and responsibilities States or any official specified in the governing the screening of Ready Re- order of presidential succession as set servists, consistent with title 10 U.S.C. forth in 3 U.S.C. 19. 269, 271, 272, 652, 672, 673, 674, 685, and (2) Members of Congress, heads of 1005 and E.O. 11190. Federal agencies appointed by the

123 § 44.4 32 CFR Ch. I (7–1–97 Edition)

President with the consent of the Sen- § 44.5 Procedures. ate, and the Federal judiciary (Dis- (a) Reserve component screening activi- trict, Circuit, and Supreme Court ties. The following general procedures judges and justices only; all other posi- shall be followed to ensure the imme- tions within the Federal judiciary shall diate availability of a Ready Reserve be considered under the provisions of force: paragraph (e)(3) of this section). For (1) Annual screening. All Ready Re- the purposes of the definition con- servists shall be screened at least an- tained in this paragraph, the terms nually to ensure their availability. ‘‘heads of Federal agencies’’ does not Upon mobilization, all screening activ- include any person appointed by the ity ceases, and all those remaining in President with the consent of the Sen- the Ready Reserve shall be considered ate to a Federal agency as a member of immediately available for active duty a multimember board or commission. service. Positions occupied by such persons (2) Maintaining current data. The de- may be designated as key positions velopment and maintenance of current only by the application of the criteria information pertaining to the mobili- set forth in § 44.5(b)(2) of this part. zation availability of Ready Reservists (3) Other Federal positions deter- shall be the responsibility of the Sec- mined by Federal agency heads, or retary of the Military Department con- their designees, to be key positions in cerned. accordance with the guidelines speci- (3) Civilian employment. After a mobi- fied in § 44.5(b)(2) of this part. lization is ordered, no deferment, (f) Ready Reserve. Units and individ- delay, or exemption from mobilization ual reservists liable for active duty as will be granted to Ready Reservists be- outlined in 10 U.S.C. 672 and 673. cause of their civilian employment. (g) Selected Reserve. Part of the Ready (4) Retention in the Ready Reserve. All Reserve of each reserve component Ready Reservists shall be retained in consisting of units and individuals who the Ready reserve for the entire period participate actively in paid training of their statutory obligation or vol- periods and serve on paid active duty untary contract. Exceptions to this for training each year. policy are made in this part or may be (h) Standby Reserve. Units or mem- made by the Secretaries of the Mili- bers of the reserve components, other tary Departments (10 U.S.C. 269). than those in the Ready Reserve or Re- (5) Transfer of National Guard members tired Reserve, who are liable for active to the Standby Reserve. In accordance duty as provided in sections 672 and 674 with section 269(g) of title 10, U.S.C., a of title 10, U.S.C. member of the Army National Guard or the Air National Guard may be trans- § 44.4 Policy. ferred to the Standby Reserve only with the consent of the governor or It is DoD policy that members of the other appropriate authority of the Selected Reserve and other Ready Re- State, commonwealth, or territory servists who are not on active duty concerned (including the District of shall be screened at least annually to Columbia). provide a Ready Reserve force com- (6) Transfer from the Standby Reserve posed of members who: to the Ready Reserve. Under section 272 (a) Meet Military Service wartime of title 10, U.S.C., any eligible member standards of mental, moral, profes- of the Standby Reserve may be trans- sional, and physical fitness. ferred back to the Ready Reserve when (b) Possess the military qualifica- the reason for the member’s transfer to tions required in the various ranks, the Standby Reserve no longer exists grades, ratings, and specialties. (32 CFR part 100). (c) Are available immediately for ac- (7) Extreme hardship. The Secretaries tive duty during a mobilization (or dur- of the Military Departments shall ing a war or national emergency or in screen extreme hardship cases (section response to a presidential order to aug- 271a(5) of title 10, U.S.C.). Ready Re- ment the active forces for an oper- servists whose immediate recall to ac- ational mission). tive duty during an emergency would

124 Office of the Secretary of Defense § 44.5 create an extreme personal or commu- (10) Removal determinations. Under nity hardship shall be transferred to this part, the Secretaries of the Mili- the Standby Reserve or the Retired Re- tary Departments shall review rec- serve or shall be discharged, as appro- ommendations for removal of employ- priate. ees from the Ready Reserve submitted (8) Miscellaneous screening require- by employers and shall take appro- ments. Ready Reservists identified in priate action. the following categories shall be proc- (b) Screening activities by employers of essed as follows: Ready Reservists. In addition to the (i) Civilian employment restrictions. Ready Reserve screening activities pre- Ready Reservists who are also DoD ci- scribed in this part to be conducted by vilian employees may not hold a mobi- the Military Departments, employers lization assignment to the same posi- of Ready Reservists also have certain tions that they fill as civilian employ- screening responsibilities under the ees. These Ready Reservists shall be re- law. assigned or transferred, as appropriate. (1) Nonfederal employers. Under 44 Reserve component unit civilian tech- CFR part 333, nonfederal employers of nicians, as members of reserve units, Ready Reservists, particularly in the are excluded from this provision. fields of public health and safety and (ii) Theological students. Ready Re- defense support industries, are encour- servists who are preparing for the min- aged to adopt personnel management istry in an accredited theological or di- procedures designed to preclude con- vinity school cannot be involuntarily flicts between the emergency man- called to active duty or required to power needs of civilian activities and participate in inactive duty training the military during a mobilization. (10 U.S.C. 685). Accordingly, such Employers also are encouraged to use Ready Reservists (other than those the Federal key position guidelines participating in a military Chaplain contained herein for making their own Candidate or Theological Student Pro- key position designations and, when gram) shall be transferred to the applicable, for recommending key em- Standby Reserve (active status) for the ployees for removal from the Ready duration of their ministerial studies at Reserve. accredited theological or divinity (2) Federal employers. Federal Pre- schools. Ready Reservists participating paredness Circular (FPC) 9 promul- in a military Chaplain Candidate or gated policy for Ready Reserve screen- Theological Student Program may con- ing activities that shall be accom- tinue their Ready Reserve affiliation plished by Federal sector employers. and engage in active duty and inactive To ensure that Federal employees es- duty training. sential to the continuity of the Federal (iii) Health care professionals. Ready government are not retained as mem- Reservists may not be transferred from bers of the Ready Reserve, the follow- the Ready Reserve solely because they ing procedures shall apply: are students, interns, residents, or fel- (i) Key positions. Some Federal em- lows in the health care professions. ployees occupy positions that cannot Upon mobilization, they either shall be be vacated during a national emer- deferred or shall be mobilized in a stu- gency or mobilization without seriously dent, intern, resident, or fellow status impairing the capability of their agen- until qualified in the appropriate mili- cy to function effectively. Because of tary specialty as prescribed by the the essential nature of these positions, Military Department Secretaries (DoD the Federal agency head, or designee, Directive 1215.4). concerned shall designate such posi- (9) Availability determinations. The tions as key positions and shall require Secretaries of the Military Depart- that they not be filled by Ready Re- ments shall make determinations for servists to preclude such positions mobilization availability on a case-by- from being vacated during a mobiliza- case basis, consistent with this part, tion. The Military Department Sec- and not by class or group determina- retaries shall transfer Ready Reserv- tions. ists occupying key positions to the

125 § 44.6 32 CFR Ch. I (7–1–97 Edition)

Standby Reserve or the Retired Re- serve screening process has identified serve or shall discharge them, as appro- but has not resolved. priate, under 10 U.S.C. 271(b). However, (e) Individual responsibilities of Ready reserve officers with a remaining mili- Reservists. (1) Each Ready Reservist tary service obligation at the time of who is not a member of the Selected their removal from the Ready Reserve Reserve is obligated to notify the Sec- may be transferred only to the Standby retary of the Military Department con- Reserve, Active Status (section 1005 of cerned of any change of address, mari- title 10, U.S.C.). tal status, number of dependents, or ci- (ii) Key position designation guidelines. vilian employment and any other In determining whether or not a posi- change that would prevent the member tion should be designated as a key posi- from meeting mobilization standards tion, the following questions should be prescribed by the Military Service con- considered by the Federal agency concerned (10 U.S.C. 652). cerned: (2) All Ready Reservists shall inform (A) Can the position be filled in a rea- their employers of their Reserve mili- sonable time after mobilization? tary obligation. (B) Does the position require tech- § 44.6 Responsibilities. nical or managerial skills that are possessed uniquely by the incumbent (a) The Assistant Secretary of Defense imployee? (Reserve Affairs) (ASD(RA)) shall manage and control the overall Ready Re- (C) Is the position associated directly serve screening program in accordance with defense mobilization? with section 271 of title 10, U.S.C., E.O. (D) Does the position include a mobi- 11190, and House Appropriations Com- lization or relocation assignment in an mittee Report 95–451. agency having emergency functions as (b) The Secretaries of the Military De- designated by E.O. 11490? partments shall: (E) Is the position directly associated (1) Screen, at least annually, all with industrial or manpower mobiliza- Ready Reservists under their jurisdiction as designated in E.O. 11490 and tion to ensure their immediate avail- E.O. 10480? ability for active duty. (F) Are there other factors related to (2) Ensure that personnel records sys- national defense, health, or safety that tems incorporate information on any would make the incumbent of the posi- factors that limit the mobilization tion unavailable for mobilization? availability of a Ready Reservist. (c) Removal Recommendations. All em- (3) Ensure that all Ready Reservists ployers who determine that a Ready have a favorably completed National Reservist is a key employee, in accord- Agency Check (NAC) or Entrance Na- ance with the guidelines contained in tional Agency Check (ENTNAC) on file. this part, promptly should report that (4) Ensure that Ready Reservists not determination to the cognizant re- on active duty are examined as to serve. The letter format shown in Ap- physical fitness in accordance with pendix A should be used for such rec- DoD Directive 1205.9. ommendations and should be mailed to (5) Process members of the Ready Re- the cognizant reserve personnel center serve who do not participate satisfac- listed in Appendix B. All the informa- torily in accordance with parts 100, 101, tion shown in the letter format should and 115 of this title. be provided so the reserve personnel (6) Transfer Ready Reservists identi- center can assess properly the matter fied as occupying key positions to the and take appropriate action. Standby Reserve or the Retired Re- (d) Resolution of conflicting manpower serve or discharge them, as appro- needs. In accordance with 44 CFR part priate. 333, the Federal Emergency Manage- (7) After making a removal deter- ment Agency (FEMA) has the author- mination in response to a petition for ity to adjudicate, before mobilization, such action, promptly transmit the re- conflicts between the mobilization sults of that determination to the manpower needs of the civilian sector Ready Reservist concerned and his or and the military that the Ready Re- her employer.

126 Office of the Secretary of Defense Pt. 44, App. B

§ 44.7 Information requirements. APPENDIX B TO PART 44—LIST OF RE- SERVE PERSONNEL CENTERS TO The ASD(RA) shall provide: WHICH RESERVE SCREENING DETER- (a) Federal agencies with a listing of MINATION AND REMOVAL REQUESTS all Federal employees who are also SHALL BE FORWARDED Ready Reservists to assist them in conducting employer screening activities ARMY NATIONAL GUARD AND ARMY RESERVE required in FPC–9. Responses from Fed- Headquarters, Department of the Army, eral agencies shall be reported under Attn: DAPE–PSM, Washington, DC 20310 Interagency Report Control Number 0912–DoD–AN. Standard data elements NAVAL RESERVE shall be used in the report in accord- Officers: Commander, Naval Military Person- ance with DoD Directive 5000.11. nel Center, Attention: NMPC–911, Washing- (b) The House Appropriations Com- ton, DC 20370 Enlisted: Commanding Officer, Naval Re- mittee with an annual report on the serve Personnel Center, New Orleans, LA status of Ready Reservists employed 70149 by the Federal government. MARINE CORPS RESERVE APPENDIX A TO PART 44—LETTER FOR- Commandant (Code RES), Headquarters, U.S. MAT TO COGNIZANT RESERVE PER- Marine Corps, Washington, DC 20380 SONNEL CENTER REQUESTING THAT AIR FORCE RESERVE EMPLOYEE BE REMOVED FROM THE READY RESERVE Commander (ARPC/DP), Air Reserve Person- nel Center, 7300 East First Avenue, Denver, (Date) CO 80280 ———————————————————————— (YYMMDD) AIR NATIONAL GUARD From: (employer-agency or company) Submit requests to the adjutant general of To: (appropriate reserve personnel center) the appropriate State, commonwealth, or Subject: Request for Employee to Be Re- territory (including the District of Colum- moved from the Ready Reserve bia).

This is to certify that the employee identi- COAST GUARD RESERVE fied below is vital to the nation’s defense efforts in (his or her) civilian job and can’t be Commandant (G–RA/55), U.S. Coast Guard mobilized with the Military Services in an Headquarters, 2100 Second Street SW., emergency for the following reasons: Washington, DC 20593. Therefore, I request that (he or she) be removed from the Ready Reserve and that you PART 45—CERTIFICATE OF RELEASE advise me accordingly when this action has OR DISCHARGE FROM ACTIVE been completed. DUTY (DD FORM 214/5 SERIES) The employee is: Name of employee (last, first, M.I.) Sec. Military grade and reserve component 45.1 Purpose. Social security number 45.2 Applicability and scope. Current home address (street, city, State, 45.3 Policy and procedures. and ZIP code) 45.4 Responsibilities. Military unit to which assigned (location and unit number) APPENDIX A TO PART 45—DD FORM 214 APPENDIX B TO PART 45—DD FORM 214WS Title of employee’s civilian position APPENDIX C TO PART 45—DD FORM 215 Grade or salary level of civilian position APPENDIX D TO PART 45—STATE DIRECTORS OF Date (YYMMDD) hired or assigned to posi- VETERANS AFFAIRS tion. ———————————————————————— AUTHORITY: 10 U.S.C. 1168 and 972. Signature and title of agency or company of- SOURCE: 54 FR 7409, Feb. 21, 1989, unless ficial otherwise noted.

127 § 45.1 32 CFR Ch. I (7–1–97 Edition)

§ 45.1 Purpose. § 45.3 Policy and procedures. (a) This document revises 32 CFR (a) Administrative issuance or reissu- part 45. ance of DD Forms 214 and 215. (b) Prescribes procedures concerning (1) The DD Form 214 will normally be the preparation and distribution of reissued by the command from which the vised DD Form 214 to comport with the member was separated. In those in- requirements of 10 U.S.C. 1168, 972, and stances where a DD Form 214 was not issued, the Services concerned may es- 32 CFR part 41 and the control and pub- tablish procedures for administrative lication of separation program designa- issuance. tors (SPDs). (2) The DD Form 214, once issued, will not be reissued except: § 45.2 Applicability and scope. (i) When directed by appropriate ap- (a) The provisions of this part apply pellate authority, Executive Order, or to the Office of the Secretary of De- by the Secretary concerned. fense, the Military Services, the Joint (ii) When it is determined by the Staff, and the Defense Agencies (here- Service concerned that the original DD after referred to as ‘‘DoD Compo- Form 214 cannot be properly corrected nents’’). The term ‘‘Military Services,’’ by issuance of a DD Form 215 or if the as used here, refers to the Army, Navy, correction would require issuance of the Air Force, the Marine Corps and, more than two DD Forms 215. by agreement with the Department of (iii) When two DD Forms 215 have been issued and an additional correc- Transportation, to the Coast Guard. tion is required. (b) Its provisions include procedures (3) Whenever a DD Form 214 is ad- on the preparation and distribution of ministratively issued or reissued, an DD Forms 214, 214WS, 215 (Appendices appropriate entry stating that fact and A, B, and C) which record and report the date of such action will be made in the transfer or separation of military Block 18, Remarks, of the DD Form 214 personnel from a period of active duty. unless the appellate authority, Execu- (NOTE: Computer-generated formats tive Order, or Secretarial directive are acceptable substitutes provided As- specifies otherwise. sistant Secretary of Defense (Force (b) The Military Services will ensure Management and Personnel) approval that every member (except as limited is obtained.) DD Forms 214 and 215 (or in paragraph (b)(2) of this section and their substitutes) will provide: excluding those listed in paragraph (c) (1) The Military Services with a source of this section being separated from of information relating to military per- the Military Services is given a com- sonnel for administrative purposes, and pleted DD Form 214 describing relevant for making determinations of eligi- data regarding the member’s service, bility for enlistment or reenlistment. and the circumstances of termination. (2) The Service member with a brief, DD Form 214 may also be issued under clear-cut record of the member’s active other circumstances prescribed by the service with the Armed Forces at the Military Service concerned. A continu- time of transfer, release, or discharge, ation sheet, if required, will be bond paper, and will reference: The DD Form or when the member changes status or 214 being continued; information from component while on active duty. blocks 1 through 4; the appropriate (3) Appropriate governmental agencies block(s) being continued; the member’s with an authoritative source of infor- signature, date; and the authorizing of- mation which they require in the ad- ficial’s signature. DD Forms 214 are not ministration of Federal and State laws intended to have any legal effect on applying to personnel who have been termination of the member’s service. discharged, otherwise released, or (1) Release or discharge from active transferred to a Reserve component service. (i) The original of DD Form 214 while on active duty. showing separation from a period of ac- (c) Its provisions include procedures tive service with a Military Service, in- on the control and distribution of all cluding release from a status that is le- lists of SPDs. gally determined to be void, will be

128 Office of the Secretary of Defense § 45.3 physically delivered to the separate (3) Continuing on active duty. Mem- prior to departure from the separation bers who change their status or compo- activity on the effective date of separa- nent, as outlined below, while they are tion; or on the date authorized travel serving on active duty will be provided time commences. a completed DD form 214 upon: (A) Copy No. 4, containing the statu- (i) Discharge for immediate enlist- tory or regulatory authority, reentry ment or reenlistment (optional—at the code, SPD code, and narrative reason discretion of the Military Services). for separation also will be physically However, Military Services not provid- delivered to the separatee prior to de- ing the DD Form 214 will furnish the parture, if he/she so requested by initi- member a DD Form 256, ‘‘Honorable ating Block 30, Member Requests Copy Discharge Certificate,’’ and will issue 4. instructions requiring those military (B) Remaining copies of DD Form 214 offices which maintain a member’s will be distributed on the day following records to provide necessary Service the effective date of separation. data to the member for application to (ii) When separation is effected under appropriate civilian individuals, emergency conditions which preclude groups, and governmental agencies. physical delivery, or when the recipi- Such data will include Service compo- ent departs in advance of normal de- nent, entry data and grades. parture time (e.g., on leave in conjunc- (ii) Termination of enlisted status to tion with retirement; or at home accept an appointment to warrant or awaiting separation for disability), the commissioned officer grade. original DD Form 214 will be mailed to (iii) Termination of a temporary ap- the recipient on the effective date of pointment to accept a permanent war- separation. rant or commission in the Regular or (iii) If the separation activity is un- Reserve components of the Armed able to complete all items on the DD Forces. Form 214, the form will be prepared as (iv) Termination of an officer ap- completely as possible and delivered to pointment in one of the Military Serv- the separatee. The separatee will be ad- ices to accept appointment in another vised that a DD Form 215 will be issued Service. by the Military Service concerned (c) DD Form 214 need not be prepared when the missing information becomes for: (1) Personnel found disqualified available; and that it will not be nec- upon reporting for active duty and who essary for the separatee to request a do not enter actively upon duties in ac- DD Form 215 for such information. cordance with orders. (iv) If an optical character recogni- (2) Personnel whose active duty, action format is utilized by a Military tive duty for training, full-time train- Service, the first carbon copy of the ing duty or active duty for special document will be physically delivered work is terminated by death. or mailed to the separatee as pre- (3) Personnel being removed from the scribed in paragraphs (b) (i) through Temporary Disability Retired List. (iii) of this section. (4) Enlisted personnel receiving tem- (2) Release from active duty for train- porary appointments to warrant or ing, full-time training duty, or active duty commissioned officer grades. for special work. Personnel being sepa- (5) Personnel whose temporary war- rated from a period of active duty for rant or commissioned officer status is training, full-time training duty, or ac- terminated and who remain on active tive duty for special work will be fur- duty to complete an enlistment. nished a DD Form 214 when they have (6) Personnel who terminate their served 90 days or more, or when re- Reserve component status to integrate quired by the Secretary concerned for into a Regular component. shorter periods. Personnel shall be fur- (7) Personnel separated or discharged nished a DD Form 214 upon separation who have been furnished a prior edition for cause or for physical disability re- of this form, unless that form is in gardless of the length of time served on need of reissuance for some other rea- active duty. son.

129 § 45.3 32 CFR Ch. I (7–1–97 Edition)

(d) Preparation. The Military Depart- the request and for the convenience of ments will issue instructions governing the Government. In these cases, Block the preparation of DD Form 214, con- 18 of DD Form 214 will be annotated to sistent with the following: indicate ‘‘Extension of service was at (1) DD Form 214 is an important the request and for the convenience of record of service which must be pre- the Government.’’ pared accurately and completely. Any (7) When one or more of the data unavoidable corrections and changes items on the DD Form 214 are not made in the unshaded areas of the form available and the document is issued to during preparation shall be neat, leg- the separatee, the applicable block(s) ible and initialed on all copies by the will be annotated ‘‘See Remarks.’’ In authenticating official. The recipient such cases, Block 18 will contain the will be informed that making any un- entry ‘‘DD Form 215 will be issued to authorized change or alteration of the provide missing information.’’ When form will render it void. appropriate, Block 18 will also reflect (2) Since DD Form 214 is often used the amount of disability pay, and the by civilian personnel, abbreviations inclusive dates of any nonpay/excess should be avoided. leave days. (3) Copies of DD Form 214 transmit- (8) The authorizing official (E–7, GS– ted to various governmental agencies 7 or above) will sign the original in ink shall be legible, especially those pro- ensuring that the signature is legible vided to the Veterans Administration on all carbon copies. If not, a second (Department of Veterans Affairs, effec- signature may be necessary on a subse- tive March 15, 1989, in accordance with quent carbon copy. The authorized offi- section 18(a), Public Law 100–527 and cial shall be an E–7, GS–7, or higher the Department of Labor). grade, except that the Service con- (4) The authority for a member’s cerned may authorize chiefs of instal- transfer or discharge will be cited by lation separation activities (E–5, GS–5, reference to the appropriate Military or above) to serve in this capacity if Service regulation, instruction, or designated in writing by the respon- manual, followed by the appropriate sible commander and/or director (0–4, separation program designator on cop- or above). ies 2, 4, 7, and 8 only. A narrative de- (9) The following are the only author- scription to identify the reason for ized entries in Block 24, Character of transfer or separation will not be used Service, as appropriate: ‘‘Honorable,’’ on copy 1. ‘‘Under Honorable Conditions (Gen- (5) To assist the former Service mem- eral),’’ ‘‘Under Other Than Honorable ber in employment placement and job Conditions,’’ ‘‘Bad Conduct,’’ ‘‘Dishon- counseling, formal inservice training orable,’’ or ‘‘Uncharacterized.’’ When a courses successfully completed during discharge has been upgraded, the DD the period covered by the form will be Form 214 will be annotated on copies 2 listed in Block 14, Military Education; through 8 in Block 18 to indicate the e.g., medical, dental, electronics, sup- character of service has been upgraded; ply, administration, personnel or heavy the date the application for upgrade equipment operations. Training was made; and the effective date of the courses for combat skills will not be corrective action. listed. See 1978 Guide to the Evaluation (10) The date entered in Block 12.a. of Educational Experiences in the shall be the date of enlistment for the Armed Services for commonly accepted earliest period of continuous active course titles and abbreviations. service for which a DD Form 214 was (6) For the purpose of reemployment not previously issued. For members rights (DoD Directive 1205.12) 1) all ex- who have previously reenlisted without tensions of service, except those under being issued a DD Form 214, and who 10 U.S.C. 972, are considered to be at are being separated with any discharge characterization except ‘‘Honorable,’’ 1 Copies may be obtained if needed, from the following statement shall appear as the U.S. Naval Publications and forms Cen- the first entry in Block 18., ‘‘Re- ter, Attn: Code 1062, 5801 Tabor Avenue, marks,’’ on the DD Form 214: ‘‘CON- Philadelphia, PA. TINUOUS HONORABLE ACTIVE

130 Office of the Secretary of Defense § 45.3

SERVICE FROM (applicable date) 94246, Capitol Station, Baton Rouge, UNTIL (applicable date).’’ The ‘‘from’’ Louisiana 70804–9246. date shall be the date of initial entry (vi) Copy No. 6. To the appropriate into active duty, or the first day of State Director of Veterans Affairs (see service for which a DD Form 214 was enclosure 4), if the member so re- not previously issued, as applicable; quested by having checked ‘‘Yes’’ in the ‘‘until’’ date shall be the date be- Block 20, ‘‘Member Requests Copy Be fore commencement of the current en- Sent to Director of Veterans Affairs.’’ listment. The member must specify the State. If (11) For Service members retiring the member does not request the copy from active duty enter in Block 18., be mailed, it may be utilized as pre- ‘‘Subject to active duty recall by Serv- scribed by the Military Service con- ice Secretary.’’ cerned. (12) For Service members being (vii) Copies No. 7 and 8. To be distrib- transferred to the Individual Ready Re- uted in accordance with regulations is- serve, enter in Block 18., ‘‘Subject to sued by the Military Service con- active duty recall and/or annual cerned. screening.’’ (viii) Additional Copy Requirements. (e) Distribution. The Military Services Discharged Alien Deserters. Provide will prescribe procedures governing the one reproduced copy of Copy No. 1 to distribution of copies of the DD Forms the U.S. Department of State, Visa Of- 214 and 215, consistent with their inter- fice—SCA/VO, State Annex No. 2, nal requirements, and the following: Washington, DC 20520, to assist the (1) DD Form 214—(i) Copy No. 1 (origi- Visa Office in precluding the unwar- nal). To the member. ranted issuance of visas to discharged (ii) Copy No. 2. To be used as the Mili- and alien deserters in accordance with tary Services’ record copy. DoD Directive 1325.2 2. Place of birth (iii) Copy No. 3. To the Veterans Ad- will be entered in Block 18. ministration (Department of Veterans (2) DD Form 214–ws. Utilized to facili- Affairs, effective March 15, 1989, in ac- tate the preparation of DD Form 214. cordance with section 18(a), Data Proc- The document will be used and dis- essing Center (214), 1614 E. Woodword posed of in accordance with regulations Street, Austin, Texas 78772. A repro- issued by the Military Service con- duced copy will also be provided to the cerned. hospital with the medical records if the (3) DD Form 215. Utilized to correct individual is transferred to a VA hos- errors in DD Form 214 discovered after pital. If the individual completes VA the original has been delivered and/or Form 21–5267, ‘‘Veterans Application distribution of copies of the form has for Compensation or Pension,’’ include been made, and to furnish to separatee a copy of the DD Form 214 with medi- information not available when the DD cal records forwarded to the VA re- Form 214 was prepared. The distribu- gional office having jurisdiction over tion of DD Form 215 will be identical to the member’s permanent address. When the distribution of DD Form 214. an individual is in Service and enlisting or reenlisting in an active duty sta- (4) Requests for Copies of DD Form 214 tus or otherwise continuing on active Subsequent to Separation. Agencies duty in another status, copy No. 3 will maintaining a separatee’s DD Form 214 not be forwarded to the VA. will provide a copy only upon written (iv) Copy No. 4. To the member, if the request by the member. Agencies will member so requested by having ini- provide the member with 1 copy with tialed Block 30. If the member does not the Special Additional Information request this copy, it may be retained in section, and 1 copy with that informa- the master military personnel record, tion deleted. In the case of DD Form to be available in case the member re- 214 issued prior to July 1, 1979, agencies quests a copy later. will provide the member with 1 copy (v) Copy No. 5. To Louisiana UCX/ containing all items of information UCFE, Claims Control Center, Louisi- ana Department of Labor, P.O. Box 2 See footnote 1 to § 545.3(d)(6).

131 § 45.4 32 CFR Ch. I (7–1–97 Edition) completed, and 1 copy with the follow- 30. In addition Blocks 1, 3, 5, and 7 of ing items deleted from the form: Spe- the DD Form 215 will be similarly cific authority and narrative reason for surprinted to make alterations readily separation, reenlistment eligibility discernible. No corrections will be per- code, and separation program designa- mitted in the screened areas. tor/number. (2) All forms will be secured after (i) In those cases where the member duty hours. has supplied an authorization to pro- (3) All obsolete forms will be de- vide a copy of the DD Form 214 to an- stroyed. other individual or group, the copy fur- (4) All forms to be discarded, includ- nished will not contain the Special Ad- ing those which are blank or partially ditional Information section or, in the completed, and reproduced copies of case of DD forms issued prior to July 1, DD Form 214, will be destroyed. No 1979, those items listed in paragraph forms will be discarded intact. (e)(4) of this section. (5) Blank forms given to personnel (ii) A copy will be provided to author- for educational or instructional pur- ized personnel for official purposes poses, and forms maintained for such only. use, are to be clearly voided in an unal- (f) Procurement. Arrangements for terable manner. procurement of DD Forms 214, 214–ws, (6) The commander or commanding and 215 will be made by the Military officer of each unit or activity author- Services. ized to issue DD Form 214 will appoint, (g) Modification of Forms. The modi- in writing, a commissioned officer, fication of the content or format of DD warrant officer, enlisted member Forms 214, 214–ws, and 215 may not be (grade E–7 or above), or DoD civilian accomplished without prior authoriza- (GS–7 or above) who will requisition, tion of the Assistant Secretary of De- control, and issue blank DD Forms 214 fense (Force Management and Person- and 215. The Service concerned may au- nel) (ASD(FM&P)). Requests to add or thorize an E–5 or GS–5 to serve in this delete information will be coordinated capacity. with the other Military Services in (7) The Military Services will mon- writing, prior to submission to the itor the use of DD Form 214 and review ASD(FM&P). If a Military Service uses periodically its issuance to insure com- computer capability to generate forms, pliance with procedures for safeguard- the items of information may be ar- ing. ranged, the size of the information (b) The DD Form 214–ws will contain blocks may be increased or decreased, the word ‘‘WORKSHEET’’ on the body and copies 7 and/or 8 may be deleted at of the form (see Appendix B). This DD the discretion of the Service. Form 214–ws will be treated in the same manner as the DD Form 214. § 45.4 Responsibilities. (c) The Military Services will issue (a) The DD Forms 214 and 215 are a appropriate instructions to separation source of significant and authoritative activities stressing the importance of information used by civilian and gov- the DD Forms 214 and 215 in obtaining ernmental agencies to validate veteran veterans benefits, reemployment eligibility for benefits. As such, they rights, and unemployment insurance. are valuable forms and, therefore, vul- (d) Standard separation program des- nerable to fraudulent use. Since they ignator (SPD) codes for officer and en- are sensitive, the forms must be safe- listed personnel developed under the guarded at all times. They will be provisions of DoD Instruction 5000.12 3 transmitted, stored, and destroyed in a are published in DoD 5000.12–M. manner which will prevent unauthor- (1) Requests to add, change, or delete ized use. The Military Services will an SPD code shall be forwarded by the issue instructions consistent with the DoD Component concerned with appro- following: priate justification to the Assigned Re- (1) All DD Forms 214 will be sponsible Agency accountable for eval- surprinted with a reproducible screen uating, recommending approval of, and tint using appropriate security ink on Blocks 1, 3, 4.a, 4.b, 12, and 18 through 3 See footnote 1 to § 45.3(d)(6).

132 Office of the Secretary of Defense § 45.4 maintaining such codes: Department of used to deny the release of the lists to the Navy, Office of The Chief of Naval the public. An individual being sepa- Operations, (Attention: OP–161), room rated or discharged is entitled access 1514, Arlington Annex, Washington, DC only to his/her SPD code. It is not in- 20350–2000. tended that these codes stigmatize an (2) Requests to add, change, or delete individual in any manner. They are in- an SPD code will be submitted in ac- tended for internal use by the Depart- cordance with section V., DoD Instruc- ment of Defense in collecting data to tion 5000.12 with prior written approval analyze statistical reporting trends by the ASD (FM&P), or his/her des- that may, in turn, influence changes in ignee. separation policy. (e) All lists of SPD codes, including supplemental lists, published by the (2) Agencies or individuals who come DoD Components will be stamped ‘‘For into the possession of these lists are Official Use Only’’ and will not be fur- cautioned on their use because a par- nished to any agency or individual out- ticular list may be outdated and not side the Department of Defense. reveal correctly the full circumstances (1) Appropriate provisions of the relating to an individual’s separation Freedom of Information Act will be or discharge.

133 Pt. 45, App. A 32 CFR Ch. I (7–1–97 Edition)

APPENDIX A TO PART 45—DD FORM 214

134 Office of the Secretary of Defense Pt. 45, App. A

135 Pt. 45, App. A 32 CFR Ch. I (7–1–97 Edition)

136 Office of the Secretary of Defense Pt. 45, App. A

[54 FR 9985, Mar. 9, 1989]

137 Pt. 45, App. B 32 CFR Ch. I (7–1–97 Edition)

APPENDIX B TO PART 45—DD FORM 214ws

138 Office of the Secretary of Defense Pt. 45, App. C

APPENDIX C TO PART 45—DD FORM 215

139 Pt. 45, App. D 32 CFR Ch. I (7–1–97 Edition)

APPENDIX D TO PART 45—STATE IDAHO DIRECTORS OF VETERANS AFFAIRS Administrator, Division of Veterans Service, P.O. Box 6675, Boise, ID 83707. ALABAMA Director, Department of Veterans Affairs, CONNECTICUT P.O. Box 1509, Montgomery, AL 36192–3701. Commandant, Veterans Home and Hospital, ALASKA 287 West Street, Rocky Hill, CT 06067.

Director, Division of Veterans Affairs, De- INDIANA partment of Military & Veterans Affairs, 3601 C Street, suite 620, Anchorage, AK Director, Department of Veterans Affairs, 99503. 707 State Office Building, 100 N. Senate Av- enue, Indianapolis, IN 46204. AMERICAN SAMOA IOWA Veterans Affairs Officer, Office of Veterans Affairs, American Samoa Government, Administrator, Veterans Affairs Division, P.O. Box 2586, Pago Pago, AS 96799. 7700 NW. Beaver Drive, Camp Dodge, John- ston, IA 50131–1902. ARIZONA KANSAS Director of Veterans Affairs, Arizona Veter- ans Service Commission, 3225 N. Central Executive Director, Kansas Veterans Com- Avenue, suite 910, Phoenix, AZ 85012. mission, Jayhawk Tower, suite 701, 700 SW. Jackson Street, Topeka, KS 66603–3150. ARKANSAS Director, 1200 West 3rd, room 105, Box 1280, KENTUCKY Little Rock, AR 72201. Director, Kentucky Center for Veterans Af- fairs, 600 Federal Place room 1365, Louis- CALIFORNIA ville, KY 40202. Director, Department of Veterans Affairs, 1227 O Street, room 200A, Sacramento, CA LOUISIANA 95814. Executive Director, Department of Veterans Affairs, P.O. Box 94095, Capitol Station, COLORADO Baton Rouge, LA 70804–4095. Director, Division of Veterans Affairs, De- partment of Social Services, 1575 Sherman MAINE Street, room 122, Denver, CO 80203. Director, Bureau of Veterans Services, State DELAWARE Office Building Station 117, Augusta, ME 04333. Chairman, Commission of Veterans Affairs, P.O. Box 1401, Dover, DE 19901. MARYLAND

DISTRICT OF COLUMBIA Executive Director, Maryland Veterans Com- mission, Federal Bldg.—room 110, 31 Hop- Chief, Office of Veterans Affairs, 941 North kins Plaza, Baltimore, MD 21201. Capitol Street NE., room 1211 F, Washing- ton, DC 20421. ILLINOIS

FLORIDA Director, Department of Veterans Affairs, 208 West Cook Street, Springfield, IL 62705. Director, Division of Veterans Affairs, P.O. Box 1437, St. Petersburg, FL 33731. MICHIGAN GEORGIA Director, Michigan Veterans Trust Fund, Commissioner, Department of Veterans P.O. Box 30026, Ottawa Bldg, No. Tower, 3rd Service, Floyd Veterans Memorial Bldg, Floor, Lansing, MI 48909. suite E–970, Atlanta, GA 30334. MINNESOTA GUAM Commissioner, Department of Veterans Af- Office of Veterans Affairs, P.O. Box 3279, fairs, Veterans Service Building, 2nd Floor, Agana, Guam 96910. St. Paul, MN 55155.

HAWAII MISSISSIPPI Director, Department of Social Services & President, State Veterans Affairs Board, 120 Housing, Veterans Affairs Section, 3949 Di- North State Street, War Memorial Build- amond Head Road, Honolulu, HI 96809–0339. ing, room B–100, Jackson, MS 39201.

140 Office of the Secretary of Defense Pt. 45, App. D

MISSOURI OREGON Director, Division of Veterans Affairs, P.O. Director, Department of Veterans Affairs, Drawer 147, Jefferson City, MO 65101. Oregon Veterans Building, 700 Summer Street NE., suite 150, Salem, OR 97310–1270. MONTANA PENNSYLVANIA Administrator, Veterans Affairs Division, P.O. Box 5715, Helena, MT 59604. Director, Department of Military Affairs, Bureau for Veterans Affairs, Fort NEBRASKA Indiantown Gap, Bldg 5–0–47, Annville, PA 17003–5002. Director, Department of Veterans Affairs, P.O. Box 95083, State Office Building, Lin- PUERTO RICO coln, NE 68509. Director, Bureau of Veterans Affairs & NEVADA Human Resources, Department of Labor, 505 Munoz Rivera Avenue, Hato Rey, PR Commissioner, Commission for Veterans Af- 00918. fairs, 1201 Terminal Way, room 108, Reno, NV 89520. RHODE ISLAND

MASSACHUSETTS Chief, Veterans Affairs Office, Metacom Ave- nue, Bristol, RI 02809. Commissioner, Department of Veterans Services, 100 Cambridge Street—room 1002, SOUTH CAROLINA Boston, MA 02202. Director, Department of Veterans Affairs, Brown State Office Building, 1205 Pendle- NEW JERSEY ton Street, Columbia, SC 29201. Director, Division of Veterans Programs & Special Services, 143 E. State Street, room SOUTH DAKOTA 505, Trenton, NJ 08608. Director, Division of Veterans Affairs, 500 East Capitol Avenue, State Capitol Build- NEW MEXICO ing, Pierre, SD 57501–5083. Director, Veterans Service Commission, P.O. TENNESSEE Box 2324, Santa Fe, NM 87503. Commissioner, Department of Veterans Af- NEW YORK fairs, 215 8th Avenue, North, Nashville, TN Director, Division of Veterans Affairs, State 37203. Office Building #6A–19, Veterans Highway, TEXAS Hauppauge, NY 11788. Executive Director, Veterans Affairs Com- NORTH CAROLINA mission of Texas, Box 12277, Capitol Sta- tion, Austin, TX 78711. Asst Secretary for Veterans Affairs, Division of Veterans Affairs, 227 E. Edenton Street, UTAH Raleigh, NC 27601. No DVA. NORTH DAKOTA VERMONT Commissioner, Department of Veterans Af- fairs, 15 North Broadway, suite 613, Fargo, Director, Veterans Affairs Office, State Of- ND 58102. fice Building, Montpelier, VT 05602.

OHIO VIRGINIA Director, Division of Soldiers Claims & Vet- Director, Division of War Veterans Claims, erans Affairs, State House Annex, room 11, 210 Franklin Road, SW., room 1002, P.O. Box 809, Roanoke, VA 24004. Columbus, OH 43215. VIRGIN ISLANDS OKLAHOMA Director, Division of Veterans Affairs, P.O. Director, Department of Veterans Affairs, Box 890, Christiansted, St. Croix, VI 00820. P.O. Box 53067, Oklahoma City, OK 73152. WASHINGTON NEW HAMPSHIRE Director, Department of Veterans Affairs, Director, State Veterans Council, 359 Lin- P.O. Box 9778, Mail Stop PM–41, Olympia, coln Street, Manchester, NH 03103. WA 95804.

141 § 46.1 32 CFR Ch. I (7–1–97 Edition)

WEST VIRGINIA that conform to this part to the extent Director, Department of Veterans Affairs, practicable, consistent with their orga- 605 Atlas Building, Charleston, WV 25301– nization missions.) 9778. § 46.3 Definitions. WISCONSIN For the purpose of administering the Secretary, Department of Veterans Affairs, Federal Voting Assistance Program, P.O. Box 7843, 77 North Dickinson Street, the following definitions apply: Madison, WI 53707. (a) Federal Election. Any general, special, or primary election held solely or PART 46—FEDERAL VOTING in part for the purpose of selecting, ASSISTANCE PROGRAM nominating, or electing any candidate for the office of President, Vice Presi- Sec. dent, Presidential Elector, Member of 46.1 Reissuance and purpose. the United States Senate, Member of 46.2 Applicability and scope. the United States House of Representa- 46.3 Definitions. tives, Delegate from the District of Co- 46.4 Policy. 46.5 Organization. lumbia, Resident Commissioner from 46.6 Responsibilities. the Commonwealth of Puerto Rico, Delegate from Guam, or Delegate from AUTHORITY: Pub. L. 296, 84th Congress and the Virgin Islands. 10 U.S.C. 133. (b) State election. Any general, spe- SOURCE: 45 FR 84766, Dec. 23, 1980, unless cial, or primary election held solely or otherwise noted. in part for the purpose of selecting, nominating, or electing any candidate § 46.1 Reissuance and purpose. for any State office, such as, governor, This rule reissues this part dated lieutenant governor, or attorney gen- September 25, 1963, and implements the eral. Provisions of Executive Order 10646, (c) Local election. An election which is November 23, 1955, wherein the Sec- less than a State election, such as a retary of Defense was designated the municipal, county, or township elec- Federal Coordinator for assigning re- tion. sponsibility and prescribing procedures (d) Military Services. Refers to the to implement the absentee voting pro- Army, Navy, Air Force, Marine Corps, gram authorized by the Federal Voting and the Coast Guard. Assistance Act of 1955 (FVAA) and the (e) Uniformed Services. Refers to the Overseas Citizens Voting Rights Act of Army, Navy, Air Force, Marine Corps, 1975 (OCVRA). This part assigns re- Coast Guard, the Commissioned Corps sponsibility and delegates authority to of the U.S. Public Health Service, and the Deputy Assistant Secretary of De- the Commissioned Corps of the Na- fense (Administration) to carry out tional Oceanic and Atmospheric Ad- this program on behalf of the Secretary ministration. of Defense. (f) Voter. A person in any of the following categories who is authorized by § 46.2 Applicability and scope. law and who is registered to vote in (a) The provisions of this part apply any primary, special, or general elec- to the Office of the Secretary of De- tion. fense, the Military Departments, the (1) Members of the Uniformed Serv- Organization of the Joint Chiefs of ices or Merchant Marine in active serv- Staff, and the Defense Agencies (here- ice and their spouses and dependents, after referred to as the ‘‘DoD Compo- wherever stationed. nents’’). (2) U.S. citizens temporarily residing (b) Other executive departments and outside the United States. agencies shall provide assistance to (3) Other U.S. citizens residing out- this program, upon request, as provided side the United States not covered by by sections 1973cc–11 and 1973cc–13 of any other category mentioned above FVAA and 1973dd–2b of OCVRA. (Par- and whose intent to return to their ticipating departments and agencies State of last residence may be uncer- shall adopt regulations and procedures tain.

142 Office of the Secretary of Defense § 46.6

(g) Voting residence. The legal resi- (See enclosure 2 of DoD Directive dence or domicile in which the voter is 1344.10,1 Political Activities by Mem- registered to vote. bers of the Armed Forces, September 23, 1969.) § 46.4 Policy. (3) No person in the Uniformed Serv- (a) To implement and administer the ices of the United States shall poll any FVAA and OCVRA, as amended/DoD other member to attempt to influence Components and other participating his or her vote before or after he or she Federal departments and agencies con- votes. (See enclosure 2 of DoD Direc- cerned with the voting program shall tive 1344.10.) encourage their eligible voters to par- (4) The provision in § 46.4(c) above, ticipate in the voting process of the shall not preclude making surveys for Federal, State, and local governments. statistical compilations to measure the (b) The voting program shall be ad- extent of voting participation of per- ministered in such a manner as to en- sons covered by the FVAA and OCVRA, sure that voters are provided all nec- as amended. essary voting information, including voting age requirements, election § 46.5 Organization. dates, officers to be elected, constitu- In accordance with E.O. 10646, au- tional amendments, other ballot pro- thority and responsibility are hereby posals, and absentee registration and delegated to the Deputy Assistant Sec- voting procedures. retary of Defense (Administration) to (c) When practicable and compatible carry out this program on behalf of the with operational conditions, every presidential designee, the Secretary of voter shall be afforded an opportunity Defense. The Deputy Assistant Sec- to register and vote in any election for retary of Defense (Administration) is which the State of his or her voting authorized to act for the presidential residence has established enabling laws designee and to coordinate and facili- and procedures. tate such actions as may be required to (d) Voting in person or by absentee discharge Federal responsibilities as- process shall be offered when local con- signed in E.O. 10646, FVAA, and ditions allow voters to prepare, send, OCVRA. and receive personal material. How- ever, a determination by those admin- § 46.6 Responsibilities. istering the voting program that vot- (a) The Deputy Assistant Secretary of ing assistance cannot be rendered be- Defense (Administration) shall: (1) Man- cause it is impractical and incompat- age, coordinate, or perform the tasks ible with military or Federal oper- assigned to the presidential designee in ations shall be conclusive, if this deter- E.O. 10646, the FVAA, and OCVRA. mination is made in good faith. (See (2) Establish and maintain liaison section 1973cc–24, FVAA.) with officials of the State legislatures, (e) Absentee voting procedures shall and with State and local election law be prescribed in such a manner as to officials. safeguard the integrity and secrecy of (3) Be the sole DoD representative for the ballot. In addition, all necessary obtaining from each State current vot- steps shall be taken to prevent fraud ing information and disseminating it and to protect voters against coercion to other executive departments, agen- of any sort. cies, and DoD Components. In this re- (1) No member of the Uniformed gard, DoD Components and participat- Services shall attempt to influence any ing departments and agencies may not other member to vote or not to vote for contact State voting officials about any particular candidate, or to require voting matters. any member to march to any polling (4) Encourage and assist States and place or place of voting. (See section other U.S. jurisdictions to adopt the 1973cc–25 of FVAA.) (2) However, nothing in § 46.4(e), 1 Copies may be obtained, if needed, from above, shall be considered to prohibit the U.S. Naval Publications and Forms Cen- free discussion regarding political ister, 5801 Tabor Avenue, Philadelphia, PA sues or candidates for public office. 19120. Attention: Code 301.

143 § 46.6 32 CFR Ch. I (7–1–97 Edition) mandatory and recommendatory provi- responsibilities. Voting officers or sions of the FVAA and OCVRA, and ad- counselers should be readily available vise them on the applicability of Fed- and equipped to give personal assist- eral laws and regulations to their indi- ance to voters for Federal, State and vidual electoral systems. local elections. In addition, any person (5) Establish a DoD Voting Assist- who appears to need assistance in read- ance Program to cover all eligible voting or understanding any English lan- ers of the Department of Defense (mili- guage material relating to voting or tary and civilian) and their eligible voter registration should receive im- spouses and dependents, to assist these mediate assistance in the appropriate personnel to vote either in person or by language. absentee process. (5) Ensure that voting information (6) Publicize the right of citizens to and related materials, such as the Vot- register and vote absentee under the ing Assistance Guide, and the Federal FVAA and OCVRA. Post Card Application form (FPCA—SF (7) Review and coordinate the infor- 76 Current Edition), are obtained and mational and educational effort di- disseminated in a timely manner. rected toward all persons covered by FPCAs are to be purchased in sufficient the FVAA and OCVRA. quantities to furnish registration and (8) Provide an ombudsman-type serv- ballot request support for all primary ice for all persons covered by the and general elections. FVAA and OCVRA and for State and (6) Ensure the in-hand delivery of local election officials. FPCAs by August 15 to Uniformed (9) Designate a week or day in Sep- Services personnel, their spouses and tember of each even-numbered year for eligible dependents, and civilian em- the purpose of encouraging military ployees of the Uniformed Services, personnel and their dependents to exer- their spouses and eligible dependents, cise their right to vote. who are serving outside the territorial (10) Conduct a survey of U.S. citizens limits of the United States. (military and civilian) covered by the FVAA and OCVRA to gather necessary (7) Ensure in-hand delivery of FPCAs statistical information to prepare the by September 15 to Uniformed Services biennial report to the President and personnel and their spouses and eligi- Congress required by FVAA. ble dependents within the United (b) Heads of DoD Components shall: (1) States, in accordance with FVAA. Facilitate the dissemination of voting (8) Require Inspectors General to in- information and provide assistance to clude the Federal Voting Program as their own personnel, including the an item for specific review at every services of an official authorized to ad- level of command to ensure that per- minister oaths. sons are informed and provided an op- (i) In overseas areas, arrangements portunity to exercise their right to shall be made to provide absentee vot- vote, and that the command has ade- ing information and assistance to vot- quately provided for voting officers or ers described in § 46.5(f)(1) and (2). counselers. (ii) To the extent practical, informa- (9) Provide for continuing evaluation tion and assistance shall also be made of command voting programs. available to voters described in (10) Establish and publicize the avail- § 46.5(f)(3). ability of a special telephone service, (2) Ensure command support at all the ‘‘Voting Action Line,’’ to link unit levels for the Voting Assistance Pro- voting officers or counselors with their gram. respective Uniformed Service Senior (3) Designate a senior officer of gen- Military Voting Representative or Vot- eral or flag rank in each Military Serv- ing Action Officer at the departmental ice as the Senior Military Voting Rep- level. Emphasis shall be placed on pro- resentative to manage Military Service viding rapid, accurate responses and voting programs. solutions to voting-oriented problems. (4) Designate voting officers or coun- (11) During Federal election years, selors at every level of command who ensure that all Armed Forces personnel are trained to carry out their assigned receive at least one briefing, training

144 Office of the Secretary of Defense § 47.3 period, or information period of in- clarifies the factors used to determine struction devoted to absentee registra- active duty (AD) service. tion and voting. Emphasis should be placed on the availability of voting in- § 47.2 Applicability and scope. formation, supporting materials, per- This part: sonal assistance, and the importance of (a) Applies to the Office of the Sec- why every vote counts. retary of Defense (OSD), the Military (12) Ensure that telephone operators Departments, and by agreement with at every military installation are pro- the Department of Transportation vided with the names and office tele- (DoT), the U.S. Coast Guard. phone numbers of unit or installation (b) Applies to any group application voting officers or counselors. considered under Public Law 95–202 (13) File an After-Action Report in after September 11, 1989 and to any in- the form specified by the Director, dividual who applies for discharge doc- Federal Voting Assistance Program. uments as a member of a group recog- (14) Conduct a Ballot Transmission nized by the Secretary of the Air Survey in the manner specified by the Force. Director, Federal Voting Assistance Program. § 47.3 Definitions. Armed conflict. A prolonged period of PART 47—ACTIVE DUTY SERVICE sustained combat involving members FOR CIVILIAN OR CONTRACTUAL of the U.S. Armed Forces against a for- GROUPS eign belligerent. The term connotes more than a military engagement of Sec. limited duration or for limited objec- 47.1 Purpose. tives, and involves a significant use of 47.2 Applicability and scope. military and civilian forces. 47.3 Definitions. (a) Examples of armed conflict are 47.4 Policy. World Wars I and II, and the Korean 47.5 Responsibilities. and Vietnam Conflicts. 47.6 Procedures. (b) Examples of military actions that APPENDIX A TO PART 47—INSTRUCTIONS FOR are not armed conflicts are as follows: SUBMITTING GROUP APPLICATIONS UNDER (1) The incursion into Lebanon in PUBLIC LAW 95–202 1958, and the peacekeeping force there APPENDIX B TO PART 47—THE DOD CIVILIAN/ in 1983 and 1984. MILITARY SERVICE REVIEW BOARD AND THE ADVISORY PANEL (2) The incursions into the Domini- can Republic in 1965 and into Libya in AUTHORITY: 38 U.S.C. 106 note. 1986. SOURCE: 54 FR 39993, Sept. 29, 1989, unless (3) The intervention into Grenada in otherwise noted. 1983. Civilian or contractual group. An orga- § 47.1 Purpose. nization similarly situated to the This document: Women’s Air Forces Service Pilots (a (a) Revises 32 CFR part 47 and imple- group of Federal civilian employees at- ments Public Law 95–202. tached to the U.S. Army Air Force in (b) Directs the Secretary of the Air World War II). Those organization Force to determine if an established members rendered service to the U.S. group of civilian employees or contract Armed Forces during a period of armed workers provided service to the U.S. conflict in a capacity that was then Armed Forces in a manner considered considered civilian employment with active military service for Department the Armed Forces, or the result of a of Veterans Affairs (VA) benefits. contract with the U.S. Government, to (c) Establishes the DoD Civilian/Mili- provide direct support to the Armed tary Service Review Board and the Ad- Forces. visory Panel. Recognized group. A group whose serv- (d) Establishes policy, assigns respon- ice the Secretary of the Air Force ad- sibilities, prescribes application proce- ministratively has determined to have dures for groups and individuals, and been ‘‘active duty for the purposes of

145 § 47.4 32 CFR Ch. I (7–1–97 Edition) all laws administered by the Depart- fighting capability of the Armed ment of Veterans Affairs’’; i.e., VA ben- Forces. Civilian service during a period efits under 38 U.S.C. 101. of armed conflict is not necessarily Similarly situated. A civilian or con- equivalent to active military service, tractual group is similarly situated to even when performed in a combat zone. the Women’s Air Forces Service Pilots Service must be beyond that generally when it existed as an identifiable group performed by civilian employees and at the time the service was being ren- must be occasioned by unique cir- dered to the U.S. Armed Forces during cumstances. For civilian service to be a period of armed conflict. Persons who recognized under this part, the follow- individually provided support through ing factors must be present: civilian employment or contract, but (A) The group was created or orga- who were not members of an identifi- nized by U.S. Government authorities able group at the time the services to fill a wartime need or, if a group was were rendered, are not ‘‘similarly situ- not created specifically for a wartime ated’’ to the Women’s Air Forces Serv- need, but existed before that time, then ice Pilots of World War II. its wartime mission was of a nature to substantially alter the organization’s § 47.4 Policy. prewar character. (a) Eligibility for consideration. To be (B) If the application is based on eligible to apply for consideration service in a combat zone, the mission under Public Law 95–202 and this part, of the group in a combat zone must a group must: have been substantially different from (1) Have been similarly situated to the mission of similar groups not in a the Women’s Air Forces Service Pilots combat zone. of World War II. (ii) Organizational authority over the (2) Have rendered service to the Unit- group. The concept of military control ed States in what was considered civil- is reinforced if the military command ian employment with the U.S. Armed authority determines such things as Forces either through formal Civil the structure of the civilian organiza- Service hiring or less formal hiring if tion, the location of the group, the the engagement was created under the mission and activities of the group, and exigencies of war, or as the result of a the staffing requirements to include contract with the U.S. Government to the length of employment and pay provide direct support to the U.S. grades of the members of the group. Armed Forces. (iii) Integration into the military orga- (3) Have rendered that service during nization. Integrated civilian groups are a period of armed conflict. subject to the regulations, standards, (4) Consist of living persons to whom and control of the military command VA benefits can accrue. authority. (5) Not have already received benefits (A) Examples include the following: from the Federal Government for the (1) Exchanging military courtesies. service in question. (b) A determination of AD service (2) Wearing military clothing, insig- that is considered to be equivalent to nia, and devices. active military service is made on the (3) Assimilating the group into the extent to which the group was under military organizational structure. the control of the U.S. Armed Forces in (4) Emoluments associated with mili- support of a military operation or mis- tary personnel; i.e., the use of com- sion during an armed conflict. The ex- missaries and exchanges, and member- tent of control exerted over the group ship in military clubs. must be similar to that exerted over (B) A group fully integrated into the military personnel and shall be deter- military would give the impression mined by, but not necessarily limited that the members of the group were to, the following: military, except that they were paid (1) Incidents favoring equivalency—(i) and accounted for as civilians. Uniqueness of service. Civilian service (C) Integration into the military may (civilian employment or contractual lead to an expectation by members of service) is a vital element of the war- the group that the service of the group

146 Office of the Secretary of Defense § 47.4 imminently would be recognized as ac- deemed to have provided service to the tive military service. Such integration Armed Forces equivalent to AD mili- acts in favor of recognition. tary service, even though the group (iv) Subjection to military discipline. may have been as follows: During past armed conflicts, U.S. mili- (A) Armed by the U.S. military for tary commanders sometimes restricted defensive purposes. the rights or liberties of civilian mem- (B) Routed by the U.S. military to bers as if they were military members. avoid the enemy. (A) Examples include the following: (C) Instructed by the U.S. military (1) Placing members under a curfew. for the defense of the group when at- (2) Requiring members to work extended hours or unusual shifts. tacked by, or in danger of attack by, (3) Changing duty assignments and the enemy. responsibilities. (D) Otherwise submitted themselves (4) Restricting proximity travel to to the U.S. military for sustenance and and from the military installation. protection. (5) Imposing dress and grooming (ii) Permitted to resign. The ability of standards. members to resign at will and without (B) Consequences for noncompliance penalty acts against military control. might include a loss of some privilege, Penalty may be direct and severe, such dismissal from the group, or trial as confinement, or indirect and mod- under military law. Such military dis- erate, such as difficult and costly cipline acts in favor of recognition. transportation from an overseas loca- (v) Subjection to military justice. Mili- tion. tary members are subject to the mili- (iii) Prior recognition of group service. tary criminal justice system. During Recognition of a group’s service by times of war, ‘‘persons serving with or agencies of State or local government accompanying an Armed Force in the does not provide support in favor of field’’ are subject to the military recognition under this part. criminal justice code. Those who were (3) serving with the U.S. Armed Forces Status of group in international law. may have been treated as if they were In addition to other factors, consider- military and subjected to court-mar- ation will be given to whether members tial jurisdiction to maintain discipline. of the group were regarded and treated Such treatment is a factor in favor of as civilians, or assimilated to the recognition. Armed Forces as reflected in treaties, (vi) Prohibition against members of the customary international law, judicial group joining the armed forces. Some or- decisions, and U.S. diplomatic practice. ganizations may have been formed to (c) Reconsideration. Applications by serve in a military capacity to over- groups previously denied a favorable come the operation of existing laws or determination by the Secretary of the treaty or because of a governmentally Air Force shall be reconsidered under established policy to retain individuals this part if the group submits evidence in the group as part of a civilian force. that is new, relevant, and substantive. These factors act in favor of recogni- Any request that the DoD Civilian/ tion. Military Service Review Board estab- (vii) Receipt of military training and/or lished hereunder (see § 47.5(b)) deter- achievement of military capability. If a mines does not provide new, relevant, group employed skills or resources that and substantive evidence shall be re- were enhanced as the result of military turned to the applicant with the rea- training or equipment designed or is- sons for nonacceptance. sued for that purpose, this acts toward recognition. (d) Counsel Representation. Neither (2) Incidents not favoring equivalency— the Department of Defense nor Depart- (i) Submission to the U.S. Armed Forces ment of Transportation shall provide for protection. A group that seeks pro- representation by counsel or defray the tection and assistance from the U.S. cost of such representation with re- Armed Forces and submits to military spect to any matter covered by this control for its own well-being is not part.

147 § 47.5 32 CFR Ch. I (7–1–97 Edition)

§ 47.5 Responsibilities. (ii) The Secretary of the Department (a) The Assistant Secretary of De- of Veterans Affairs. fense (Force Management and Person- (iii) The Secretary of the Army. nel) (ASD(FM&P)) shall: (iv) The Secretary of the Navy. (1) Appoint a primary and an alter- (v) The ASD (FM&P). nate member in the grade of O–6 or (vi) The Secretary of Transportation GM–15 or higher to the DoD Civilian/ (when a group claims active Coast Military Service Review Board. Guard service). (2) Exercise oversight over the Mili- (c) The Secretary of the Army, Sec- tary Departments and the U.S. Coast retary of the Navy, Secretary of the Guard for compliance with this Direc- Air Force, and Commandant of the tive and in the issuance of discharge Coast Guard shall: documents and casualty reports to (1) Appoint to the board a primary members of recognized groups. and an alternate member in the grades (b) The Secretary of the Air Force, as of O–6 or GM–15 or higher from their the designated Executive Agent of the respective Military Services. Secretary of Defense for the adminis- (2) Process applications for discharge tration of Public Law 95–202 shall: documents from individuals claiming (1) Establish the DoD Civilian/Mili- membership in a recognized group in tary Service Review Board and the Ad- accordance with applicable laws, Direc- visory Panel. tives, the Secretary of the Air Force (2) Appoint as board president a rationale and instrument effecting a member or employee of the Air Force group determination, and any other in- in grade O–6 or GM–15 or higher. structions of the board. (3) Request the Secretary of Trans- (3) Determine whether the applicant portation to appoint an additional vot- was a member of a recognized group ing member from the U.S. Coast Guard after considering the individual’s evi- when the board is considering the ap- dence of membership and verifying the plication of a group claiming active service against available Government Coast Guard service. records. (4) Provide a recorder and an assist- (4) Issue a DD Form 214, ‘‘Certificate ant to maintain the records of the of Release or Discharge from Active board and administer the functions of Duty,’’ and a DD Form 256, ‘‘Honorable this part. Discharge Certificate,’’ or a DD Form (5) Provide nonvoting legal advisors 257, ‘‘General Discharge Certificate,’’ and historians. as appropriate, consistent with DoD In- (6) Publish notices of group applica- struction 1336.1 1 and DoD Directive tions and other Public Law 95–202 an- 1332.14 2 and the implementing docu- nouncements in the FEDERAL REG- ments of the appropriate statutes of ISTER. the Military Department concerned or (7) Consider the rationale and rec- the DoT and the instructions of the ommendations of the DoD Civilian/ DoD Civilian/Military Service Review Military Service Review Board. Board. (8) Determine whether the service (5) Issue a DD Form 1300, ‘‘Report of rendered by a civilian or contractual Casualty,’’ in accordance with DoD In- group shall be considered AD service to struction 1300.9 3 if a verified member the U.S. Armed Forces for all laws ad- was killed during the period of AD ministered by the VA. The decision of service. the Secretary of the Air Force is final. (6) Ensure that each DD Form 214, There is no appeal. ‘‘Certificate of Release or Discharge (9) Notify the following persons in from Active Duty,’’ and each DD Form writing when a group determination is 1300, ‘‘Report of Casualty,’’ have the made (if the Secretary of the Air Force disagrees with the rationale or rec- 1 ommendations of the board, the Sec- Copies may be obtained, if needed, from the U.S. Naval Publications and Forms Cen- retary of the Air Force shall provide ter, Attn: 1053, 5801 Tabor Avenue, Philadel- the decision and reasons for it in writ- phia, PA 19120. ing to these persons): 2 See footnote 1 to § 47.5(c)(4). (i) The applicant(s) for the group. 3 See footnote 1 to § 47.5(c)(4).

148 Office of the Secretary of Defense Pt. 47, App. A following statement entered in the panel for historical review and analy- ‘‘Remarks’’ section: sis. This document, issued under Public Law (3) When received, the recorder shall 95–202 (38 U.S.C. 106 Note), administratively send the advisory panel’s report to the establishes active duty service for the pur- applicant for comment. The applicant’s poses of Department of Veterans Affairs ben- comments shall be referred to the advi- efits. sory panel if significant disagreement (7) Determine the equivalent mili- requires resolution. Additional com- tary pay grade, when required by the ments from the historians also shall be Department of Veterans Affairs. For referred to the applicant for comment. VA benefits, a pay grade is needed only (4) The DoD Civilian/Military Service in cases when an individual was killed Board shall consider the group applica- or received service-connected injuries tion, as established, in paragraph (a) or disease during the recognized period and paragraphs (b) (1) through (3) of of AD service. A DD Form 1300 shall be this section. issued with the equivalent pay grade annotated for a member who died dur- (5) After the Secretary of the Air ing the recognized period of service. A Force makes a decision, the recorder DD Form 214 shall not include pay shall notify the applicant of the deci- grade, unless the Department of Veter- sion and announce it in the ‘‘FEDERAL ans Affairs requests that a grade deter- REGISTER.’’ mination be given. Determinations of (c) Submitting individual applications. equivalent grade shall be based on the When a group is recognized, individual following criteria in order of impor- members may apply to the appropriate tance: Military Department or to the Coast (i) Officially recognized organiza- Guard for discharge documents. Sub- tional grade or equivalent rank. mit applications on DD Form 2168, (ii) The corresponding rank for civil- ‘‘Application for Discharge of Member ian pay grade. or Survivor of Member of Group Cer- (iii) If neither of the criteria in para- tified to Have Performed Active Duty graphs (c)(7) (i) and (ii) of this section, with the Armed Forces of the United and applies, only one of three grades States.’’ An application on behalf of a may be issued; i.e., O–1, E–4, or E–1. Se- deceased or incompetent member sub- lection depends on the nature of the job performed, the level of supervision mitted by the next of kin must be ac- exercised, and the military privileges companied by proof of death or incom- to which the individual was entitled. petence. (8) Adjudicate applicant challenges to the period of AD service, character- APPENDIX A TO PART 47—INSTRUCTIONS ization of service, or other administra- FOR SUBMITTING GROUP APPLICATIONS tive aspects of the discharge docu- UNDER PUBLIC LAW 95–202 ments issued. A. In Submitting a Group Application: 1. De- fine the group to include the time period § 47.6 Procedures. that your group provided service to the U.S. (a) Submitting group applications. Ap- Armed Forces. plications on behalf of a civilian or 2. Show the relationship that the group contractual group shall be submitted had with the U.S. Armed Forces, the manner to the Secretary of the Air Force using in which members of the group were em- the instructions in appendix A to this ployed, and the services the members of the part. group provided to the Armed Forces. (b) Processing group applications. (1) 3. Address each of the factors in § 47.4. When received, the recorder shall re- 4. Substantiate and document the applica- view the application for sufficiency and tion. (The burden of proof rests with the ap- either return it for more information plicant.) or accept it for consideration and an- B. Send Completed Group Applications To: Secretary of the Air Force (SAF/MRC), DoD nounce acceptance in the FEDERAL Civilian/Military Service Review Board, REGISTER. Washington, DC 20330–1000. (2) The recorder shall send the application to the appropriate advisory

149 Pt. 47, App. B 32 CFR Ch. I (7–1–97 Edition)

APPENDIX B TO PART 47—THE DOD CI- PART 48—RETIRED SERVICEMAN’S VILIAN/MILITARY SERVICE REVIEW FAMILY PROTECTION PLAN BOARD AND THE ADVISORY PANEL A. Organization and Management Subpart A—General Information

1. The board shall consist of a president se- Sec. lected from the Department of the Air Force 48.101 Purpose. and one representative each from the OSD, 48.102 Definitions. the Department of the Army, the Depart- ment of the Navy, the Department of the Air Force, and the U.S. Coast Guard (when the Subpart B—Election of Options group claims active Coast Guard service). 48.201 Options. Each member shall have one vote except that the president shall vote only to break a 48.202 Limitation on number of annuities. tie. The board’s decision is determined by 48.203 Election of options. majority vote. The president and two voting 48.204 Change or revocation of election. members shall constitute a quorum. 48.205 Election form. 2. The advisory panel shall act as a nonvot- 48.206 Information regarding elections. ing adjunct to the board. It shall consist of historians selected by the Secretaries of the Subpart C—Designation of Beneficiaries Military Departments and, if required, by the Secretary of Transportation. The respec- 48.301 Designation. tive Military Departments and the DOT shall 48.302 Substantiating evidence regarding de- ensure that the advisory panel is provided pendency and age of dependents. with administrative and legal support. 48.303 Condition affecting entitlement of B. Functions widow or widower. 1. The board shall meet in executive ses- Subpart D—Reduction of Retired Pay sion at the call of the president, and shall limit its reviews to the following: 48.401 Computation of reduction. a. Written submissions by an applicant on 48.402 Effective date of reduction. behalf of a civilian or contractual group. 48.403 Payment of nonwithheld reduction of Presentations to the board are not allowed. retired pay. b. Written report(s) prepared by the advi- 48.404 Ages to be used. sory panel. c. Any other relevant written information 48.405 Action upon removal from temporary available. disability retired list. d. Factors established in this part for de- 48.406 Withdrawal and reduction of percent- termining AD service. age or amount of participation. 2. The board shall return to the applicant any application that does not meet the eligi- Subpart E—Annuity bility criteria established in § 47.4(a). The board only needs to state the reasons why 48.501 General information. the group is ineligible for consideration 48.502 Effective date of annuity. under this part. 48.503 Claims for annuity payments. 3. If the board determines that an applica- 48.504 Payment to children. tion is eligible for consideration under 48.505 Establishing eligibility of annuitants. § 47.4(a), the board shall provide, to the Sec- 48.506 Recovery of erroneous annuity pay- retary of the Air Force, a recommendation ments. on the AD service determination for the 48.507 Restriction on participation. group and the rationale for that rec- 48.508 Certain 100 percent disability retire- ommendation that shall include, but not be ments. limited to, a discussion of the factors listed in § 47.4. a. No factors shall be established that re- Subpart F—Miscellaneous quire automatic recognition. Neither the 48.601 Annual report. board nor the Secretary of the Air Force 48.602 Organization. shall be bound by any method in reaching a decision. 48.603 Correction of administrative defi- b. Prior group determinations made under ciencies. Public Law 95–202 do not bind the board or 48.604 Transition and protective clauses. the Secretary of the Air Force. The board AUTHORITY: Sec. 1444, 70A Stat. 111; 10 and the Secretary of the Air Force fully and U.S.C. 1444. impartially shall consider each group on its own merit in relation to the factors listed in SOURCE: 34 FR 12092, July 18, 1969, unless section D. of this Directive. otherwise noted.

150 Office of the Secretary of Defense § 48.102

Subpart A—General Information cause of being mentally defective or physically incapacitated if that condi- § 48.101 Purpose. tion existed prior to reaching age 18. The purpose of the Retired Service- (5) A child as defined above, who is at man’s Family Protection Plan is to least 18, but under 23 years of age and permit each member of the uniformed unmarried, who is pursuing a full-time services to elect to receive a reduced course of study or training in a high amount of any retired pay which may school, trade school, technical or voca- be awarded him as a result of service in tional institute, junior college, college, his uniformed service in order to pro- university, or comparable recognized vide an annuity payable after his death educational institution. (Applicable (while entitled to retired pay) to his only in the case of members who re- widow, child, or children, subject to tired on or after Nov. 1, 1968). certain limitations specified in the law (6) A child loses his eligibility for an and elaborated in the regulations in annuity under this part if he is adopted this part. by a third person before the parent- member’s death. His eligibility is not § 48.102 Definitions. affected if he is adopted by a third per- (a) The terms Plan or RSFPP as here- son after the parent-member’s death inafter used means the Retired Serv- (36 Comp. Gen. 325). iceman’s Family Protection Plan (for- (f) The term stepchild means a child merly called the Uniformed Services of a member’s spouse by a former mar- Contingency Option Act). riage. The stepchild relationship termi- (b) The term uniformed services means nates upon the divorce of the parent the Army, Navy, Air Force, Marine spouse, but not upon the death of the Corps, Coast Guard, Commissioned parent spouse. Corps of Environmental Science Serv- (g) The term in fact dependent means ices Administration, and Commis- that the stepchild must be dependent sioned Corps of Public Health Service. on the member for over half of his or (c) The term member means a com- her support. missioned officer, commissioned war- (h) The term retirement means retire- rant officer, warrant officer, nurse, ment with eligibility to receive retired flight officer, or a person in an enlisted pay. grade (including an aviation cadet) of any of the uniformed services, and a (i) The term retired pay includes re- person in any of these categories who tired, retirement, equivalent and re- is entitled to or is in receipt of retired tainer pay awarded as a result of serv- pay, except persons excluded in title 10, ice in the uniformed services. U.S. Code, section 1431(a), as amended. (j) The term reduced retired pay (d) The term widow includes widower means the retired pay remaining after and refers to the lawful spouse of the the cost of participation in RSFPP has member on the date of retirement with been subtracted. pay. (k) The term department concerned (e) The term child means, in all cases, means (1) the Department of the Army a member’s child, who is living on the with respect to the Army, (2) the De- date of retirement of the member with partment of the Navy with respect to pay and who meets the following re- the Navy and Marine Corps, (3) the De- quirements: partment of the Air Force with respect (1) A legitimate child under 18 years to the Air Force, (4) the Department of of age and unmarried. Transportation with respect to the (2) A stepchild, under 18 years of age Coast Guard, (5) the Department of and unmarried, who is in fact depend- Commerce with respect to the Environ- ent on the member for support (see mental Science Services Administra- paragraphs (f) and (g) of this section). tion, and (6) the Department of Health, (3) A legally adopted child, under 18 Education, and Welfare with respect to years of age and unmarried. the Public Health Service. (4) A child, as defined above, who is (l) The term dependent means the 18 or more years of age and unmarried, prospective annuitants described in and who is incapable of self-support be- paragraphs (d) and (e) of this section.

151 § 48.201 32 CFR Ch. I (7–1–97 Edition)

(m) The term Board of Actuaries were to retire at the time of election; means the Government Actuary in the however, if such elected amount ex- Department of the Treasury, the Chief ceeds 50 per centum of his retired pay Actuary of the Social Security Admin- when he does retire, it shall be reduced istration, and a member of the Society to an amount equal to such 50 per cen- of Actuaries appointed by the Presi- tum. Also, if the dollar amount elected dent to advise the Secretary of Defense is less than 121⁄2 per centum of his re- on the administration of the Plan. tired pay when he does retire, it shall (n) The term Joint Board means rep- be increased to an amount equal to resentatives of the uniformed services such 121⁄2 per centum. appointed under the provisions of (a) Option 1 is an annuity payable to § 48.602. or on behalf of his widow, the annuity (o) The term years of service means to terminate upon her death or remar- years of service creditable in the com- riage. putation of basic pay. (b) Option 2 is an annuity payable to (p) The term election means the or on behalf of his surviving child or choice of options made by the member children as defined in § 48.102, the annu- under the RSFPP. This term includes a ity to terminate when there ceases to modification of a previous election or be at least one such surviving child eli- an election submitted after a revoca- gible to receive the annuity. Each pay- tion of a previous option(s) elected. ment under such annuity shall be paid (q) The term elections in effect means in equal shares to or on behalf of the valid elections existing on the day of surviving children remaining eligible retirement. at the time the payment is due. A (r) A recognized educational institu- member who had this option in effect tion is defined as a high school, trade on the date of retirement, and who re- school, technical or vocational insti- tired on or after November 1, 1968, may tute, junior college, college, univer- apply to the Secretary concerned to sity, or comparable recognized edu- have a child (other than a child de- cational institution which meets one scribed in § 48.102(e)(4)) who is at least or more of the following criteria: 18 but less than 23 years of age consid- (1) It is operated or directly sup- ered not to be an eligible beneficiary ported by the United States, or a under this paragraph (b) or § 48.202. State, or local governmental agency. Normally such applications will be ap- (2) It is accredited by a nationally proved. recognized or State recognized accred- (c) Option 3 is an annuity to or on be- iting agency. half of his widow and surviving child or (3) It is approved as an educational children. Such annuity shall be paid to institution by a State or local govern- the widow until death or remarriage, mental agency. and thereafter each payment under (4) Its credits are accepted for trans- such annuity shall be paid in equal fer (or for admission) by three or more shares to or on behalf of the surviving accredited schools on the same basis as children remaining eligible at the time credits from an accredited school. the payment is due. A member may provide for allocating, during the pe- Subpart B—Election of Options riod of the surviving spouse’s eligibility, a part of the annuity under this § 48.201 Options. subpart B for payment to those of his As provided in § 48.203, a member may surviving children who are not children elect one or more of the following an- of that spouse. The sum allotted will nuities. The amount must be specified not exceed the equitable share for at time of election, and may not be for which such children would be eligible more than 50 per centum nor less than after the death of the widow. 121⁄2 per centum of his retired pay, in (d) When no eligible beneficiary reno case may be less than a $25 monthly mains to benefit from the option elect- annuity be elected. If the election is ed, the member’s retired pay will be re- made in terms of dollars, the amount stored (except as provided in § 48.604, may be more than 50 per centum of the for certain members retired before retired pay that he would receive if he Aug. 13, 1968). All elections on file on

152 Office of the Secretary of Defense § 48.203

Aug. 13, 1968, for members not entitled provided in paragraph (b) of this sec- to receive retired pay will be consid- tion. ered to include the restoration feature (b) Except as provided in paragraph with attendant cost factors being ap- (c) of this section, a member who fails plied at time of retirement. For the or declines to make an election before purpose of this paragraph, a child completion of 19 years of service may (other than a child described in make an election after that time. How- § 48.102(e)(4)) who is at least 18 but less ever, unless the election is made at than 23 years of age, and is not pursu- least 2 years prior to the date the ing a course of study as defined in member becomes entitled to receive re- § 48.102(e)(5), shall be considered an eli- tired pay, it will not be effective. The gible beneficiary unless an approved same applies to subsequent changes or application by the member pursuant to revocations made prior to retirement. § 48.201(b) that such a child is not to be (c) If an election, revocation, or considered an eligible beneficiary is in change was made prior to August 13, effect (for members who retire on or 1968, the 19-year and 2-year provisions after Nov. 1, 1968). are automatically in effect on August 13, 1968, for members who were not en- § 48.202 Limitation on number of an- titled to retired pay on such date, un- nuities. less the member applies under When a member desires to provide § 48.604(d) to remain under the provi- both the annuity provided by Option 1 sions of the law prior to August 13, and Option 2, he may elect amounts 1968. In this case the ‘‘18 years of serv- that, in total, meet the limitations ice’’ and ‘‘3 years prior to receipt of re- specified in § 48.201. The cost of each tired pay’’ rules will apply. annuity, and the amount of each annu- (d) A member retired for physical dis- ity shall be determined separately. A ability on or after November 1, 1968 member may not elect the combination who is awarded retired pay prior to of Options 1 and 3 or Options 2 and 3 in completion of 19 years of service may any case. The combined amount of the make an election which is subject to annuities may not be more than 50 per the restrictions set forth in § 48.507. centum nor less than 121⁄2 per centum The election by such member shall be of his retired pay. In no case may less made before the first day for which he than a $25 per month combined annuity is entitled to retired pay. Elections be provided. made under this paragraph prior to No- vember 1, 1968, must be made by the § 48.203 Election of options. member retiring for physical disability (a) A member who has completed less prior to completing 18 years. than 19 years of service as defined in (e) If, because of military operations, § 48.102(o) may elect to receive a re- a member is assigned to an isolated duced amount of retired pay in order to station, or is missing, interned in a provide one or more of the annuities as neutral country, captured by a hostile specified in §§ 48.201 and 48.202, payable force, or beleaguered or besieged, and after his death while entitled to retired for that reason is unable to make an pay to or on behalf of his surviving election before completing 19 years of widow, child, or children. To be effec- service, he may make the election tive, the election by such a member within 1 year after he ceases to be as- must be dated, signed, witnessed, and signed to that station or returns to the delivered to appropriate service offi- jurisdiction of his service as the case cials, or postmarked not later than may be, and such election shall become midnight on the day in which he com- effective immediately upon subsequent pletes 19 years of service. Such an elec- retirement. tion will become effective immediately (f) A member to whom retired pay is upon subsequent retirement. The latest granted retroactively, and who is oth- election, change, or revocation made in erwise eligible to make an election, accordance with this subsection will, if may make the election within 90 days otherwise valid, be the effective elec- after receiving notice that such pay tion, unless superseded by a change as has been granted him.

153 § 48.204 32 CFR Ch. I (7–1–97 Edition)

(g) Whenever a member is determined ted in accordance with this subsection to be mentally incompetent by medical will be effective at retirement. officers of the uniformed services or of (c) A member who desires to make an the Veterans Administration, or is ad- election or change or revoke his elec- judged mentally incompetent by a tion after he has completed 19 years of court of competent jurisdiction and be- service may do so prior to his retire- cause of such mental incompetency is ment. However, such an election, incapable of making any election with- change or revocation will be effective in the time limitations prescribed by only if at least 2 years elapse between the Plan, the Secretary of the Depart- the date of the election, change, or rev- ment concerned may make the appro- ocation and the date of eligibility to priate election on behalf of such mem- receive retired pay. ber upon request of the spouse, or if (d) A revocation will not prohibit the there be no spouse, by or on behalf of filing of a new election at a later date the child or children of such member. If which will become valid under applica- such member is subsequently deter- ble validation provisions. mined to be mentally competent by the (e) A member may, on or after No- Veterans Administration or a court of vember 1, 1968, at any time prior to his competent jurisdiction, he may, within retirement, change or revoke his elec- 180 days after such determination or tion (provided the change does not in- judgment, change or revoke the elec- crease the amount of the annuity elect- tion made on his behalf. In such a case, ed) to reflect a change in the marital the change or revocation will be effec- or dependency status of the member of tive on the date of the member’s re- his family caused by death, divorce, an- quest for such change or revocation. nulment, remarriage, or acquisition of Deductions previously made shall not a child, if such change or revocation is be refunded. made within 2 years of such change in (h) All elections on file on August 13, status. 1968, for members not entitled to re- (f) Notification of a change in family ceive retired pay shall be subject to the status is not a change of election. provisions of this section unless the (g) All changes and revocations on member makes the application speci- file on August 13, 1968, for members not fied in § 48.604(d). entitled to retired pay shall be subject (i) A person who was a former mem- to the provisions of this section unless ber of the armed forces on November 1, the member makes the application 1953, and who is granted retired pay specified in § 48.604(d). after that date, may, at the time he is granted that pay, make an election as § 48.205 Election form. provided in § 48.201. The form for making election after October 31, 1968, is prescribed as Elec- § 48.204 Change or revocation of election of Options, Retired Serviceman’s tion. Family Protection Plan, DD Form (a) A change of election is a change 1688. 1 It will be submitted as directed in the amount of the annuity or annu- herein. All copies will be signed, and ities under any option, or a change in any otherwise complete, signed copy, any option or options selected. A rev- when properly submitted, may be used ocation is a cancellation of a previous to substantiate the fact of election, election and constitutes a withdrawal modification, revocation, or change in from coverage under the Plan. family status. (b) A member may change or revoke his election as often as he desires prior § 48.206 Information regarding elec- to the completion of 19 years of service. tions. Such a change or revocation must be (a) All members of the Reserve com- dated, signed, witnessed, and delivered ponent who will have accumulated suf- to appropriate service officials, or post- ficient service to be eligible for retired marked not later than midnight on the day in which the member completes 19 1 Filed as part of the original document. years of service. The latest election, Copies may be obtained from Military Per- change, or revocation which is submit- sonnel Office.

154 Office of the Secretary of Defense § 48.401 pay at age 60, will be counseled on the date of a member must be verified by Plan before reaching their 57th birth his service record. All required sub- dates in order to insure that valid elec- stantiating evidence must be at the tions can be made prior to their 58th disbursing office which would normally birth dates. An election, modification, pay the member retired pay or retainer or revocation submitted subsequent to pay immediately following retirement attaining age 58 will be valid only if it so as to permit the establishment of is made and submitted at least 2 years accurate pay accounts and to prevent prior to the first date for which retired the creation of indebtedness or over- pay is granted. payments. (b) It is the responsibility of the department concerned to provide election § 48.303 Condition affecting entitle- forms and to promulgate information ment of widow or widower. concerning the benefits of the Plan to A member may have a different law- all members so as to allow a timely ful spouse at the time of retirement election. from the lawful spouse he had at the (c) Members retiring for physical dis- time of election. The lawful spouse at ability prior to the completion of 19 the time of retirement is the spouse el- years of service will, prior to retire- igible for an annuity at the time of ment, be counseled and furnished infor- member’s death. Divorce of the mem- mation concerning the operation of the ber will remove the former spouse as a Plan. prospective annuitant.

Subpart C—Designation of Subpart D—Reduction of Retired Beneficiaries Pay § 48.301 Designation. § 48.401 Computation of reduction. (a) All legal beneficiaries described in (a) The reduction to be made in the § 48.102 must be named at the date of retired pay of a member who has made retirement pursuant to the option an election shall be computed by the elected. Although a member without uniformed service concerned in each dependents may make an election, it individual case, based upon tables of will not be effective unless he has eligi- factors prepared by the Board of Actu- ble dependents at the time of his re- aries. The computation shall be based tirement. upon the applicable table in effect on (b) When a change in family status the date of retirement. occurs prior to retirement which would (b) An adjustment may be made in effect a change as provided in the reduction of retired pay upon the § 48.204(e), new DD Form 1688,1 Election finding of an administrative error or a of Options, Retired Servicemen’s Fam- mistake of fact (see § 48.603). ily Protection Plan, should be filed to (c) If a member elects to be covered evidence such change. by option 3, and on the date he is awarded retired pay has no children el- § 48.302 Substantiating evidence re- igible to receive the annuity, or has garding dependency and age of de- only a child or children aged 18–22 pendents. (other than a child described in At the time of submitting the elec- § 48.102(e)(4) and elects, at retirement, tion, or prior to retirement, the mem- that such child or children shall not be ber must indicate his wife’s and young- considered to be eligible beneficiaries, est child birth date as applicable to the he shall have his costs computed as option elected. At or before the time of though he had elected option 1. If he his retirement, he must submit proof of elects option 3, and on the date he is final dissolution of prior marriages, if awarded retired pay has no wife eligi- any, both for himself and his spouse. ble for the annuity, he shall have his The age of the dependents must be sub- costs computed as though he had elect- stantiated by a birth certificate or ed option 2. other competent evidence. The birth (d) If a member elects option 3, and after he becomes entitled to retired 1 See footnote 1 to § 48.205. pay, there is no eligible spouse because

155 § 48.402 32 CFR Ch. I (7–1–97 Edition) of death or divorce, upon the retired been paid. The notification of delin- member’s application, no deductions quency will advise the member that 15 from his retired pay shall be made additional days have been granted to after the last day of the month in him in which to remit his deposit, and which there ceases to be an eligible that if the arrears are not deposited spouse. Children otherwise eligible will within that period, the member will be continue to be eligible for the annuity charged interest to include the first in event of the member’s death. No day of delinquency. In no case will the amounts by which the member’s re- expiration date of the 15 days exceed a tired pay is reduced before that date date later than 45 days from the date may be refunded to or credited on be- the deposit was due. The interest will half of that person. be computed monthly and the rate will (e) The amount of reduction in re- be that used in computing the cost ta- tired pay and the annuity payable es- bles in effect on the date of the mem- tablished for each individual at the ber’s retirement. If such member later time of his retirement shall remain becomes in receipt of retired pay, any unaltered except as provided in arrears with compound interest will be § 48.203(g), paragraphs (b) and (d) of this withheld. section, and § 48.406, regardless of future pay increases or decreases. § 48.404 Ages to be used. § 48.402 Effective date of reduction. Ages to be used for calculating reductions of retired pay will be the ages of The effective date of reduction in re- the member and his eligible dependents tired pay will be the effective date of on their nearest birth dates as of the retirement with pay. The reduction in date of the member’s retirement. retired pay will be terminated on the date the member ceases to be entitled § 48.405 Action upon removal from to retired pay or on the first day of the temporary disability retired list. month following that in which there is no eligible beneficiary (for exception to (a) Any member on the temporary this rule see § 48.604). disability retired list established pursuant to title 10, United States Code, § 48.403 Payment of nonwithheld re- chapter 61, who has elected to receive duction of retired pay. reduced retired pay in order to provide (a) A member of a uniformed service one or more of the annuities specified who is entitled to retired pay and has in the Plan, and who is subsequently made an election shall, during any pe- removed from the list due to any rea- riod in which he is not receiving re- son other than permanent retirement, tired pay (including periods of active shall have refunded to him a sum duty), deposit the amount which would which represents the difference be- have been withheld from his retired tween the amount by which his retired pay had he been receiving that pay. pay has been reduced and the cost of an (b) Such deposit will be payable to amount of term insurance which is Treasurer of the United States and equal to the protection provided his de- shall be forwarded monthly to the dis- pendents during the period he was on bursing office which would normally the temporary disability retired list. pay the member his retired pay. (b) If the member concerned is re- (c) The disbursing office will in all turned to active duty, his election as cases inform the member of the previously made will continue or he amount to be deposited and when such may change or revoke the election as deposits are to be made. provided in § 48.204. (d) In the event deposits are not (c) Time creditable for the purpose of made within 30 days of the due date, the two year interval required to make the disbursing office will inform the a change, revocation or new election member concerned that he is delin- valid includes service before, during, quent from such due date and there- and after temporary disability retire- after his designated beneficiaries will ment. (See §§ 48.203 and 48.204 and not be eligible for the annuity provided Comptroller Decision B–144158, Dec. 23, under the Plan until the arrears have 1960.) Active duty after removal from a

156 Office of the Secretary of Defense § 48.504 temporary disability retired list is a § 48.502 Effective date of annuity. necessity in such a case. All annuities payable under this Plan except those payable to beneficiaries § 48.406 Withdrawal and reduction of percentage or amount of participa- described in § 48.102(e)(5) shall accrue tion. from the first day of the month in which the retired member dies and A retired member who is participat- shall be due and payable not later than ing in the Plan may revoke his election the 15th day of each month following and withdraw from participation, or he that month and in equal monthly in- may reduce the amount of the survivor stallments thereafter, except that no annuity; however, an approved with- annuity shall accrue or be paid for the drawal or reduction will not be effec- month in which entitlement to that tive earlier than the first day of the annuity terminates. seventh month beginning after the date his application is received by the Fi- § 48.503 Claims for annuity payments. nance Center controlling his pay Upon official notification of the record. (For special rules covering par- death of a retired member who has ticipating members retired before Aug. elected under the Plan, the department 13, 1968, without option 4, see § 48.604.) concerned shall forward to the eligible No application for reduction will be ap- surviving beneficiaries the necessary proved which requests a change in op- information and forms (DD Form 768. tions. A request to reduce an annuity Application for Annuity Under Retired or to withdraw from the Plan is irrev- Serviceman’s Family Protection Plan) ocable, and a retired member who with- for making application for annuity draws may never again participate in payments. Such information shall in- the Plan. Approval of a request for a clude the place to which the applica- reduction will not be made when such tion should be forwarded and to which reduction results in an annuity of less questions regarding annuity payments than 121⁄2 per centum of the member’s should be addressed. retired pay or less than a $25 monthly annuity. The new cost, after such re- § 48.504 Payment to children. duction in survivor annuity, will be (a) Annuities for a child or children computed from the applicable cost will be paid to the child’s guardian, or table at the time of retirement. No if there is no guardian, to the person(s) amounts by which a member’s retired who has care, custody, and control of pay is reduced may be refunded to, or the child or children. credited on behalf of, the member by (b) Annuities payable to or on behalf virtue of an application made by him of an eligible child as defined in under this section. § 48.102(e)(5) accrue as of the first day of the month in which— (1) The member (upon whose retired Subpart E—Annuity pay the annuity is based) dies if the eligible child’s 18th birthday occurs in the § 48.501 General information. same or a preceding month, or Except as provided in § 48.506(a), no (2) The 18th birthday of an eligible annuity payable under the Plan shall child occurs if the member (upon whose be assignable, or subject to execution, retired pay the annuity is based) died levy, attachment, garnishment, or in a preceding month, or other legal process. Annuities payable (3) A child first becomes (or again be- under this Plan shall be in addition to comes) eligible, if that eligible child’s any pensions or other payments to 18th birthday and the death of the which the beneficiaries may now or member (upon whose retired pay the hereafter be entitled under other provi- annuity is based) both occurred in a sions of law (except as provided in preceding month or months. An eligi- § 48.507), and may not be considered as ble child under this paragraph might income under any law administered by become ineligible at age 18 and again the Veterans Administration, except become eligible by furnishing proof of for the purpose of title 38 U.S. Code, pursuit of a full time course of study or section 415(g) and chapter 15. training as enumerated in § 48.102(e)(5).

157 § 48.505 32 CFR Ch. I (7–1–97 Edition)

§ 48.505 Establishing eligibility of an- physical disability before the comple- nuitants. tion of 19 years of service and then dies (a) Eligibility for the annuity will be in retirement, his widow and eligible established by such evidence as may be children can receive monthly survivor required by the department concerned. annuities only if they are not eligible (b) If a child as defined in § 48.102(e)(4) for Dependency and Indemnity Com- is a designated annuitant, the depart- pensation payments from the Veterans ment concerned shall require proof Administration. If either the widow or that the incapacity for self-support ex- children are eligible for dependency isted prior to the child’s reaching age and indemnity compensation pay- 18. Proof that continued incapacitation ments, then payment of annuities exists will be required every 2 years under the Plan may not be made to any after the child passes the age of 18 member of the family. If the retired years, except in a case where medical member’s death was not service con- prognosis indicates recovery is impos- nected and his widow or children are sible. not eligible for payments from the Vet- (c) If a child as defined in § 48.102(e)(5) erans Administration, they may re- is a designated annuitant, as specified ceive the provided annuity payments in § 48.504(b), the department concerned under the Plan. shall require proof from the institution (b) If the beneficiaries on whose be- at least semiannually that the child is half the election was made are re- pursuing a full-time course of training stricted as in paragraph (a) of this sec- as prescribed. For the purpose of prov- tion, from receiving annuities, the ing eligibility, a child is considered to amounts withheld from the elector’s be pursuing a full-time course of study retired pay as a result of the election or training during an interval between will be refunded to the beneficiaries, school periods that does not exceed 150 less the amount of any annuity paid, days if he has demonstrated to the sat- and without interest. isfaction of the department concerned (c) Upon notification of the death of that he has a bona fide intention of the member in such a case, the depart- commencing, resuming, or continuing ment concerned will take the following to pursue a full-time course of study or actions: training in a recognized educational in- (1) Notify the Central Office of the stitution immediately after that inter- Veterans Administration of the death val. of the member and request that the department concerned be advised if an § 48.506 Recovery of erroneous annu- award is made under chapter 11 or 13, ity payments. title 38 U.S. Code. (a) The Secretary of the Department (2) Request the Central Office of the concerned is empowered to use any Veterans Administration to forward to means provided by law to recover the eligible widow and/or children an amounts of annuities erroneously paid application form for survivor benefits to any individual under the Plan. He under chapter 11 or 13, title 38 U.S. may authorize such recovery by adjust- Code, with instructions for completion ment in subsequent payments to which and submission. the individual is entitled. (b) There need be no recovery when § 48.508 Certain 100 percent disability in the judgment of the Secretary of the retirement. Department concerned and the Comp- An election filed on or after August troller General of the United States, 13, 1968 is not effective if the member the individual to whom the erroneous dies within 30 days following retire- payment was made is without fault and ment from a disability of 100 per cen- recovery would be contrary to the pur- tum (under the standard schedule of pose of the Plan or would be against rating disabilities in use by the Veter- equity and good conscience. ans Administration) for which he was retired under chapter 61, title 10 U.S. § 48.507 Restriction on participation. Code, unless— (a) If a person who has made an elec- (a) Such disability was the result of tion under the Plan retires with a injury or disease received in line of

158 Office of the Secretary of Defense § 48.604 duty as a direct result of armed con- ant Secretary of Defense (Manpower flict, or and Reserve Affairs). (b) His widow or children are not entitled to dependency and indemnity § 48.603 Correction of administrative compensation under chapter 13, title 38 deficiencies. U.S. Code. (a) The Secretary of the Department concerned may correct any election or Subpart F—Miscellaneous any change or revocation of an election when he considers it necessary to cor- § 48.601 Annual report. rect an administrative error. Informa- tion on such corrections shall be com- Information and data for the prepara- piled by each department for inclusion tion of the annual report of the Board in the report prescribed by § 48.601. of Actuaries will be compiled by the (b) Except when procured by fraud, a Office of the Secretary of Defense after correction under the section is final promulgation of appropriate instruc- and conclusive on all officers of the tions to each of the uniformed services. United States. These instructions will be in con- (c) Information on all corrections to sonance with Executive Order 10499 di- elections under this Plan which are recting the Secretary of Defense to ad- made under title 10, section 1552, Unit- minister the provisions of the law. ed States Code, shall be compiled and § 48.602 Organization. this information forwarded to the Board of Actuaries for an actuarial (a) The Joint Board for the Retired analysis. Serviceman’s Family Protection Plan shall consist of a principal and alter- § 48.604 Transition and protective nate member for each of the uniformed clauses. services appointed by the Department (a) A retired member who is partici- Secretary concerned. Alternate mem- pating in the Plan without inclusion of bers will be authorized to act in the ab- former option 4, which provided for res- sence of the principal. The Board shall toration of retired pay when no eligible meet on call of the Chairman. A beneficiary remained in his election, quorum shall consist of representatives may before September 1, 1969, elect to of at least four of the participating have that option included in his elec- services. tion. The election to include such op- (b) The Board shall establish proce- tion 4 becomes effective on the first dures for the orderly conduct of busi- day of the month following the month ness to be approved by the Assistant in which that election was made. The Secretary of Defense (Manpower and retired member must on or before the Reserve Affairs). effective date agree to pay to the (c) The duties of the Board will in- Treasury both the total additional clude but not be limited to the follow- amount to cover the option had it been ing: effective when he retired, and the in- (1) Making recommendations to the terest which would have accrued on the Secretary of Defense for: additional amount up to the effective (i) Changes to the Executive order date of the new option 4. No such addi- delegating to him functions conferred tional amount (except interest) shall on the President by law, accrue for months after the first month (ii) Changes to these regulations, for which the individual had no eligible (iii) Changes to the law, and beneficiary. However, if undue hardship (iv) Measures to insure uniform oper- or financial burden would result, pay- ating policies. ments may be made in from 2 to 12 (2) Promulgating tables of annuity monthly installments when the month- costs as prescribed by the Board of Ac- ly amount involved is $25 or less, or in tuaries. from 2 to 36 installments when the (3) Promulgating cost of term insur- monthly amounts involved exceed $25. ance as required in § 48.405. No amounts by which a member’s re- (d) The Chairmanship of the Joint tired pay was reduced may be refunded Board will be designated by the Assist- to, or credited on behalf of, the retired

159 § 51.1 32 CFR Ch. I (7–1–97 Edition) member by virtue of an application (DEOC), the Defense Equal Opportunity made by him under this section. A re- Management Institute (DEOMI), and tired member who does not make the the Board of Visitors (BOV) to DEOMI. additional election provided under this section within the time limits will not § 51.2 Applicability and scope. be allowed to reduce an annuity or This part: withdraw from participation in the (a) Applies to all military members Plan as provided by § 48.406. of the Office of the Secretary of De- (b) Members who have elected and are not yet retired will automatically fense (OSD), the Military Departments participate under the provisions of (including their National Guard and § 48.201. Reserve components), the Joint Staff, (c) Elections in effect on August 13, the Unified and Specified Commands, 1968, will remain under the cost tables the Defense Agencies, and the DoD applicable on the date of the member’s Field Activities (hereafter referred to retirement. collectively as ‘‘DoD Components’’). (d) Any member who has filed an The term ‘‘Military Services,’’ as used election, modification, or revocation herein, refers to the Army, Navy, Air prior to August 13, 1968, may before Force, and Marine Corps. September 1, 1969, submit a written ap- (b) Applies to DoD contracted organi- plication to the Secretary concerned zations that provide services to mili- requesting that such election, modi- tary personnel and their families. fication, or revocation remain under (c) Does not apply to civilian person- the time-of-election provisions of the nel, except as noted in paragraph (b) of law applicable on the date it was filed. this section.

PART 51—THE DEPARTMENT OF DE- § 51.3 Definitions. FENSE MILITARY EQUAL OPPOR- Affirmative Action. Methods used to TUNITY PROGRAM achieve the objectives of the EO program. Processes, activities, and sys- Sec. tems designed to identify, eliminate, 51.1 Purpose. 51.2 Applicability and scope. prevent, and work to overcome the ef- 51.3 Definitions. fects of discriminatory treatment as it 51.4 Policy. affects the upward mobility and qual- 51.5 Responsibilities. ity of life for DoD personnel. 51.6 Information requirements. Discrimination. Illegal treatment of a APPENDIX A TO PART 51—MILITARY EQUAL OP- person or group based on handicap, PORTUNITY REPORTING REQUIREMENTS race, color, national origin, age, reli- APPENDIX B TO PART 51—ORGANIZATIONS AND gion, or gender. FUNCTIONS DoD Military Equal Opportunity (EO) AUTHORITY: Pub. L. 92–261, sec. 301, 80 Stat. Program. The DoD-wide military pro- 379 (5 U.S.C. 301, 10 U.S.C. 133). gram of equal opportunity that is ac- SOURCE: 54 FR 46227, Nov. 2, 1989, unless complished through efforts by DoD otherwise noted. Components. It provides an environ- § 51.1 Purpose. ment in which every member of the total force is ensured an opportunity to This part: rise to as high a level of responsibility (a) Regulates the Department of De- fense Military Equal Opportunity (EO) as possible in the military profession, Program and assigns responsibilities dependent only on merit, fitness, and for ensuring DoD-wide compliance with capability. the broad program objectives outlined Equal Opportunity (EO). The right of in DoD Human Goals Charter, March all persons to participate in and benefit 21, 1988. from programs and activities for which (b) Provides for education and train- they are qualified. These programs and ing in EO and human relations. activities shall be free from social, per- (c) Prescribes the functions of the sonal, or institutional barriers that Defense Equal Opportunity Council prevent people from rising to as high a

160 Office of the Secretary of Defense § 51.4 level of responsibility as possible. Per- or ethical beliefs, and practices that sons shall be evaluated only on individ- are held with the strength of tradi- ual merit, fitness, and capability, re- tional religious views, characterized by gardless of race, color, gender, national ardor and faith, and generally evi- origin, age, or handicap except as pre- denced through specific religious ob- scribed by statute, or DoD/Service pol- servances. icy. Sexual Harassment. A form of sex dis- Ethnic Group. A segment of the popu- crimination that involves unwelcomed lation that possesses common charac- sexual advances, requests for sexual fa- teristics and a cultural heritage based vors, and other verbal or physical con- to some degree on the following: duct of a sexual nature when: (a) Common geographic origin; (a) Submission to or rejection of such (b) Race; conduct is made either explicitly or (c) Language or dialect; implicitly a term or condition of a per- (d) Religious faith or faiths; son’s job, pay, or career, or (e) Shared traditions, values, or sym- (b) Submission to or rejection of such bols; conduct by a person is used as a basis (f) Literature, folklore, or music; for career or employment decisions af- (g) An internal sense of distinctive- fecting that person, or ness; and/or (c) Such conduct interferes with an (h) An external perception of distinc- individual’s performance or creates an tiveness. intimidating, hostile, or offensive envi- Ethnic and Racial Categories. The ronment. basic racial and ethnic categories for Any person in a supervisory or com- DoD reporting are defined as follows: mand position who uses or condones (a) American Indian or Alaskan Native. implicit or explicit sexual behavior to A person having origins in the original control, influence, or affect the career, peoples of North America. pay, or job of a military member or ci- (b) Asian or Pacific Islander. A person vilian employee is engaging in sexual having origins in any of the original harassment. Similarly, any military peoples of the Far East, Southeast member or civilian employee who Asia, the Indian subcontinent, or the makes deliberate or repeated Pacific Islands. This area includes unwelcomed verbal comments, ges- China, India, Japan, Korea, the Phil- tures, or physical contact of a sexual ippine Islands, and Samoa. nature is also engaging in sexual har- (c) Black (Not of Hispanic Origin). A assment. person having origins in any of the original peoples of Africa. § 51.4 Policy. (d) Hispanic. A person having origins It is DoD policy to: in any of the original peoples of Mex- (a) Support the military EO program ico, Puerto Rico, Cuba, or Central or as an integral element in total force South America, or of other Spanish readiness, as defined in the Secretary cultures, regardless of race. of Defense Memorandum and enforce at (e) White (Not of Hispanic Origin). A all levels of activity the EO provisions person having origins in any of the of this part in developing operating EO original peoples of Europe, North Afri- policies and programs. ca, or the Middle East. (b) Use the chain of command to pro- National origin. An individual’s or an- mote, support, and enforce the military cestor’s place of origin. Also applies to EO program. The chain of command is a person who has the physical, cul- the primary and preferred channel for tural, or linguistic characteristics of a correcting discriminatory practices national group. and for ensuring that human relations Race. A division of humans identified and EO matters are enacted. by the possession of traits that are (c) Ensure the Military Services (to transmissible by descent and that are include the Reserve components) main- sufficient to characterize as a distinc- tain military EO and affirmative active human type. tion programs. Discrimination that ad- Religion. A personal set or institu- versely affects persons or groups based tionalized system of attitudes, moral on race, color, religion, gender, age, or

161 § 51.5 32 CFR Ch. I (7–1–97 Edition) national origin, and that is not sup- stated in the Joint Regulation, in cases ported legally, is contrary to good of discrimination involving places of order and discipline, and is counter- public accommodations outside mili- productive to combat readiness and tary installations. mission accomplishment. Discrimina- tion of this nature shall not be con- § 51.5 Responsibilities. doned or tolerated. (a) The Assistant Secretary of Defense (d) Provide education and training in (Force Management and Personnel) EO and human relations at installation (ASD(FM&P)) shall: and fleet unit commands, Military (1) Represent and advise the Sec- Service accession points, and through- retary of Defense in military EO mat- out the professional military education ters consistent with 32 CFR part 384. (PME) system, as part of the overall ef- (2) Chair the Defense Equal Oppor- fort to achieve equal opportunity. tunity Council. (e) Provide for an environment that (3) Provide guidance on developing is free from sexual harassment by all DoD programs to ensure equal op- eliminating this form of discrimination portunity for military personnel in the in the Department of Defense. total force. (f) Ensure that all on-base activities (4) Develop, execute, and monitor the and, to the extent of the ability of effectiveness of military EO policies in DoD, any off-base activities available support of national security objectives. to military personnel are open to all military personnel and their author- (5) Ensure that DoD Components ful- ized family members regardless of race, fill the requirements of this part. color, religion, age, physical or mental (6) Provide policy direction to handicap, gender, or national origin, as DEOMI and select the Commandant of called for by the DoD Human Goals DEOMI from Military Service nomina- Charter. tions. (1) Organizations or activities that do (7) Establish categories and monitor not meet this requirement shall be de- specific goals to be included in the af- nied the use of military facilities and firmative action programs and annual resources in accordance with 32 CFR military EO assessments of each DoD part 237. This policy applies equally to Component. those organizations that may discrimi- (8) Review and act on (or refer to ap- nate based on the content of their con- propriate Military Service) all com- stitutions, bylaws, rules or regulations, plaints of discrimination arising under as well as to those which, in the judg- this part (to include sexual harassment of the responsible commander(s), ment) referred to the Secretary of De- are engaging in de facto discrimination fense. regardless of the content of their con- (9) Ensure fair, impartial and timely stitutions, bylaws, rules or regulations. investigation, resolution, and follow-up (2) Organizations that use on-base fa- of all complaints of discrimination cilities, whether on a reimbursable arising under this part. basis or otherwise, must satisfy the re- (10) Establish a program to recognize sponsible area or activity commander individuals and organizations for out- that they do not discriminate through standing achievement in one or more of their actual membership practices or the major EO areas covered by this in any of their activities. part. (g) Oppose discrimination in off-base (b) The Heads of DoD Components housing directed against military per- shall be responsible for equal oppor- sonnel and their authorized family tunity within their respective jurisdic- members. Each commander shall take tions (to include their Reserve compo- actions to overcome such discrimina- nents) and shall: tion and to impose off-limits sanctions (1) Ensure that all DoD EO policies in housing cases, as required by 32 CFR and programs are understood and exe- part 301. cuted at all levels of military com- (h) Impose, as required, the off-limits mand. sanction according to the Armed (2) Establish affirmative action pro- Forces Disciplinary Control Board as grams that identify and resolve EO

162 Office of the Secretary of Defense Pt. 51, App. A problems through formulating, main- (9) Ensure that all discrimination taining, and reviewing affirmative ac- complaints are investigated in a fair, tion plans (AAPs) with established ob- impartial, and prompt manner. jectives and milestones and including (10) Ensure that consideration of EO accountability in personnel manage- program support is included in the in- ment consistent with DoD Instruction structions that guide rating officials in 1350.3.1 preparing efficiency reports and/or (3) Forward a fiscal year report to evaluations on their subordinates. the ASD(FM&P) outlining the progress (11) Develop management informa- being made to achieve the established tion and reporting systems to deter- military EO objectives of the AAP. mine the progress for each AAP goal This report shall be due each year on consistent with DoD Instruction 1350.3. February 1, and is described further in (12) Establish EO awards programs to DoD Instruction 1350.2. recognize individuals and organiza- (4) Establish policies that include tional units for outstanding achieve- specific actions to be taken against ment in any of the EO areas covered by any individual who commits an act of this part or Military Service-unique discrimination, as defined in § 51.3. programs. (5) Rewrite documents and change practices that discriminate against § 51.6 Information requirements. military personnel based on race, reli- An annual report is required and is gion, color, gender, or national origin. assigned Report Control Symbol DD– This requirement does not apply to FM&P(A)1760. Reporting requirements those Military Service documents that are contained in appendix A to this implement statutes or DoD/Service part and further amplified in DoD In- policy requiring different treatment of struction 1350.3. military personnel based on age or gender. APPENDIX A TO PART 51—MILITARY EQUAL OPPORTUNITY REPORTING RE- (6) Establish policies and procedures to prevent sexual harassment and to QUIREMENTS ensure that appropriate action is taken Each DoD Component shall submit an an- against individuals who commit sexual nual Military Equal Opportunity Assessment harassment offenses, in accordance (MEOA) for the period ending September 30 with the Secretary of Defense Memo- to the ASD(FM&P) no later than February 1 randums. of the following year. The report shall include the following information: (7) Ensure that all military person- A. An executive summary, providing an nel, including command-selectees and overall assessment of each DoD Component’s flag and general officers, receive train- AAPs and EO Programs. ing in equal opportunity, human rela- B. An assessment of each affirmative actions, and prevention of sexual harass- tion in the following 10 categories shall be ment on a recurring basis, and at all made an enclosure to the report. The assess- levels of PME. ment in each category should include quan- titative data in the basic race/ethnic classi- (8) Establish and fill sufficient full- fications for officers and enlisted personnel time staff positions and allocate suffi- broken down by gender. cient resources to conduct all EO pro- 1. Recruiting/Accessions grams. Equal opportunity staff person- 2. Composition nel shall be placed at a level that en- 3. Promotions ables them to communicate effectively 4. Professional Military Education (PME) the goals and objectives of the program 5. Separations and obtain the understanding, support, 6. Augmentation/Retention and commitment of the organization’s 7. Assignments leaders. 8. Discrimination/Sexual Harassment Com- plaints 9. Utilization of Skills 1 Copies may be obtained, if needed, from the U.S. Naval Publications and Forms Cen- 10. Discipline ter, Attn: Code 1062, 5801 Tabor Avenue, C. Requirements are further explained in Philadelphia, PA 19120. DoD Instruction 1350.3.

163 Pt. 51, App. B 32 CFR Ch. I (7–1–97 Edition)

APPENDIX B TO PART 51— (6) Operating and administering the De- ORGANIZATIONS AND FUNCTIONS fense EO Electronic Bulletin Board to support EO advisors and specialists throughout 1. The Defense Equal Opportunity Council the Military Services. (DEOC) shall: (7) Serving as a focal point and depository a. Coordinate policy and review the mili- for data and research on the EO climate and tary and civilian EO programs. sexual harassment in the Military Services. b. Monitor progress of program elements. b. The following applies to appointments c. Advise the Secretary of Defense on poli- to DEOMI: cies for EO matters. (1) The Commandant shall be appointed by d. Assist in developing policy guidance for the ASD(FM&P). This position shall rotate education and training in EO and human re- among representatives nominated by the De- lations for DoD personnel. partments of the Army, Navy, and Air Force. 2. The DEOC is Chaired by the Assistant Sec- (2) The ASD(FM&P) shall establish criteria retary of Defense/Force Management and Per- for assigning officers and enlisted personnel sonnel (ASD(FM&P)). Other members are the from the Military Departments, including Assistant Secretary of Defense for Reserve the Coast Guard, National Guard, and Re- Affairs (ASD(RA)); the Assistant Secretary serves to faculty and staff positions at of the Air Force for Manpower and Reserve DEOMI. Affairs (ASAF(M&RA)); the Assistant Sec- 4. The DEOMI BOV is an Advisory Body to retary of the Army for Manpower and Re- the ASD(FM&P). The Board is established by serve Affairs (ASA(MRA)); the Assistant Sec- charter and serves as an external source of retary of the Navy for Manpower and Re- expertise to ensure periodic review of the observe Affairs (ASN(M&RA)); and the Director jectives, policies, and operations of DEOMI. of Administration and Management, Office of the Secretary of Defense (DA&M, OSD). PART 53—WEARING OF THE 3. DEOMI is a DoD Field Activity Operating UNIFORM Under the Supervision, Direction, and Policy Guidance of the ASD(FM&P). Located as a Sec. tenant on an established military installa- 53.1 Purpose. tion, DEOMI shall be supported administra- 53.2 Policy. tively and logistically by the Military De- partment responsible for the host installa- AUTHORITY: 5 U.S.C. 301, 10 U.S.C. 772. tion. a. The mission of DEOMI is to enhance § 53.1 Purpose. combat and/or operational readiness through This part prescribes limitations on improved leadership by functioning as the wearing of the uniform by members of DoD center of excellence in all facets of military EO and human relations education and the Armed Forces, and establishes pol- training to include the following: icy with respect to wearing of the uni- (1) Providing primary training for all DoD form by former members of the Armed military and civilian personnel assigned to Forces. military EO billets (to include the U.S. Coast [35 FR 1236, Jan. 30, 1970] Guard), and staff officers who directly manage EO and human relations programs. (2) Performing EO and human relations re- § 53.2 Policy. search in conjunction with the Military (a) Members of the Armed Forces (in- Services and acting as a clearing house to cluding retired members and members monitor and disseminate research findings of reserve components). The wearing of on EO and human relations. the uniform is prohibited under any of (3) Providing assistance or consultation the following circumstances: services in DoD organizations in developing specific curricula and training for EO and (1) At any meeting or demonstration human relations education, and particular which is a function of, or sponsored by training for the PME systems within the an organization, association, move- Military Services; and serving in an advisory ment, group, or combination of persons capacity to other Agencies in education, in- which the Attorney General of the dustry, and the private sector, as determined United States has designated, pursuant by the Commandant. to E.O. 10450 as amended, as totali- (4) Disseminating educational training ma- tarian, fascist, communist, or subver- terials to assist EO advisors and human rela- sive, or as having adopted a policy of tions instructors in remaining current in the EO subject area and in otherwise developing advocating or approving the commis- professionally. sion of acts of force or violence to deny (5) Performing special research-related others their rights under The Constitu- projects in support of the DEOC. tion of the United States, or as seeking

164 Office of the Secretary of Defense § 54.3 to alter the form of Government of the PART 54—ALLOTMENTS FOR CHILD United States by unconstitutional AND SPOUSAL SUPPORT means. (2) During or in connection with the Sec. furtherance of political activities, pri- 54.1 Purpose. vate employment or commercial inter- 54.2 Applicability and scope. ests, when an inference of official spon- 54.3 Definitions. sorship for the activity or interest 54.4 Policy. could be drawn. 54.5 Responsibilities. (3) Except when authorized by com- 54.6 Procedures. petent Service authority, when partici- AUTHORITY: 15 U.S.C. 1673, 37 U.S.C. 101, 42 pating in activities such as public U.S.C. 665. speeches, interviews, picket lines, SOURCE: 51 FR 23755, July 1, 1986, unless marches, rallies or any public dem- otherwise noted. onstrations (including those pertaining to civil rights), which may imply Serv- § 54.1 Purpose. ice Sanction of the cause for which the Under section 65 of title 42, United demonstration or activity is con- States Code, this part provides policy ducted. on statutorily required child or child (4) When wearing of the uniform and spousal support allotments, as- would tend to bring discredit upon the signs responsibilities, and prescribes Armed Forces. procedures. (5) When specifically prohibited by regulations of the department con- § 54.2 Applicability and scope. cerned. (a) This part applies to the Office of (b) Former members of the Armed the Secretary of Defense (OSD) and the Forces. (1) Unless qualified under an- Military Departments. The term ‘‘Mili- other provision of this part or under tary Services,’’ as used herein, refers to the provisions of 10 U.S.C. 772, former the Army, Navy, Air Force, and Marine members who served honorably during Corps. a declared or undeclared war and whose (b) Its provisions cover members of most recent service was terminated the Military Services on extended ac- under honorable conditions may wear tive duty. This does not include a the uniform in the highest grade held member under a call or order to active during such war service only upon the duty for a period of less than 30 days. following occasions and in the course of travel incidents thereto: § 54.3 Definitions. (i) Military funerals, memorial serv- (a) Authorized person. Any agent or ices, weddings, and inaugurals. attorney of any State having in effect (ii) Parades on national or State holi- a plan approved under part D of title days; or other parades or ceremonies of IV of the Social Security Act (42 U.S.C. a patriotic character in which any ac- 651–664), who has the duty or authority tive or reserve U.S. military unit is to seek recovery of any amounts owed taking part. as child or child and spousal support (2) Wearing of the uniform or any (including, when authorized under the part thereof at any other time or for State plan, any official of a political any other purpose is prohibited. subdivision); and the court that has au- (c) Medal of Honor holders. Persons thority to issue an order against a who have been awarded the Medal of member for the support and mainte- Honor may wear the uniform at their nance of a child or any agent of such court. pleasure except under the circumstances set forth in paragraph (a) (b) Child support. Periodic payments for the support and maintenance of a of this section. child or children, subject to and in ac- [35 FR 1236, Jan. 30, 1970] cordance with State or local law. This

165 § 54.4 32 CFR Ch. I (7–1–97 Edition) includes, but is not limited to, pay- § 54.5 Responsibilities. ments to provide for health care, edu- (a) The Assistant Secretary of De- cation, recreation, and clothing or to fense (Comptroller) (ASD(C)) shall pro- meet other specific needs of such a vide guidance, monitor compliance child or children. with this part, and have the authority (c) Designated official. The representa- to change or modify the procedures in tive of the Military Service concerned § 54.6. who is authorized to receive and to (b) The Secretaries of the Military process notices under this part. See Departments shall comply with this § 54.6(f) for a listing of designed offi- part. cials. (d) Notice. A court order, letter, or § 54.6 Procedures. similar documentation issued by an au- (a) Notice to designated official. (1) An thorized person providing notification authorized person shall send to the des- that a member has failed to make peri- ignated official of the member’s Mili- odic support payments under a support tary Service a signed notice that in- order. cludes: (e) Spousal support. Periodic pay- (i) A statement that delinquent sup- ments for the support and maintenance port payments equal or exceed the of a spouse or former spouse, in accord- amount of support payable for 2 ance with State and local law. It in- months under a support order, and a re- cludes, but is not limited to, separate quest that an allotment be initiated maintenance, alimony while litigation pursuant to 42 U.S.C. 665. continues, and maintenance. Spousal (ii) A certified copy of the support support does not include any payment order. for tranfer of property or its value by (iii) The amount of the monthly sup- an individual to his or her spouse or port payment. Such amount may in- former spouse in compliance with any clude arrearages, if a support order community property settlement, equi- specifies the payment of such arrear- table distribution of property, or other ages. The notice shall indicate how division of property between spouses or much of the amount payable shall be former spouses. applied toward liquidation of the arrearages. (f) Support order. Any order providing for child or child and spousal support (iv) A statement that delinquent support payments are more than 12 weeks issued by a Court of competent juris- in arrears, if appropriate. diction within any State, territory, or (v) Sufficient information identifying possession of the United States, includ- the member to enable processing by ing Indian tribal courts, or in accord- the designated official. The following ance with administrative procedures information is requested: established under State law that af- (A) Full name; fords substantial due process and is (B) Social Security Number; subject to judicial review. (C) Military Service (Army, Navy, Air Force, or Marine Corps). § 54.4 Policy. (vi) The full name and address of the The Department of Defense is obli- allottee. The allottee shall be an au- gated by 42 U.S.C. 665 to require child, thorized person, the authorized per- or child and spousal, support allot- son’s designee, or the recipient named ments from the pay and allowances of in the support order. a member who has failed to make peri- (vii) Any limitations on the duration odic payments under a support order in of the support allotment. a total amount equal to the support (viii) A certificate that the official payable for 2 months or longer. The sending the notice is an authorized per- member’s allotment shall be estab- son. lished by the Secretary of the Military (2) The notice shall be sent by mail Department concerned, or the Sec- or delivered in person to the appro- retary’s designee, provided all require- priate designated official of the Mili- ments of this part have been met. tary Service. The designated official

166 Office of the Secretary of Defense § 54.6 shall note the date and time of receipt (b) Disposable Earnings. (1) In deter- on the notice. mining disposable earnings for a mem- (3) The notice is effective when it is ber assigned within the contiguous received in the office of the designated United States, include the following official. payments. For definitions of these (4) When the notice does not suffi- items, see DoD 5000.12–M. ciently identify the member, it shall be (i) Basic pay (including Military returned directly to the authorized per- Service academy cadet and mid- son with an explanation of the defi- shipman pay). ciency. However, before the notice is (ii) Basic allowance for quarters for returned, if there is sufficient time, an members with dependents, and for attempt shall be made to inform the members without dependents in grade authorized person who sent the notice E–7 or higher. that it will not be honored unless ade- (iii) Basic allowance for subsistence quate information is supplied. for commissioned and warrant officers. (5) Upon receipt of effective notice of (iv) Special pay for physicians, den- delinquent support payments, together tists, optometrists, and veterinarians. with all required supplementary docu- (v) Submarine pay. ments and information, the designated (vi) Flying pay (all crew members). official shall identify the member from (vii) Diving pay. whom moneys are due and payable. (viii) Proficiency pay or special duty Under § 54.6(d), the allotment shall be assignment pay. established in the amount necessary to (ix) Career sea pay. comply with the support order and to (2) To determine disposable earnings liquidate arrearages if provided by a for a member assigned outside of the support order when the maximum contiguous United States, the follow- amount to be allotted under this provi- ing shall supplement the payments sion, together with any other moneys listed in paragraph (b)(1) of this sec- withheld for support from the member, tion: does not exceed: (i) Foreign duty pay. (i) Fifty percent of the member’s dis- (ii) Special pay for duty subject to posable earnings for any month in hostile fire (applies only to members which the member asserts by affidavit permanently assigned in a designated or other acceptable evidence that he or area). she is supporting a spouse, dependent (iii) Family separation allowances child, or both, other than a party in (only under certain type-II conditions). the support order. When the member (iv) Special pay for overseas exten- submits evidence, copies shall be sent sions to the authorized person, together with (c) Calculations of disposable earn- notification that the member’s support ings shall exclude: claim shall be honored. If the support (1) Amounts owed by the member to claim is contested by the authorized the United States. person, that authorized person may (2) Amounts mandatorily withheld refer this matter to the appropriate for the U.S. Soldiers’ and Airmen’s court or other authority for resolution. Home. (ii) Sixty percent of the member’s (3) Fines and forfeitures ordered by a disposable earnings for any month in court-martial or by a commanding offi- which the member fails to assert by af- cer. fidavit or other acceptable evidence (4) Federal and State employment that he or she is supporting a spouse, and income taxes withheld to the ex- dependent child, or both. tent that the amount deducted is con- (iii) Regardless of the limitations sistent with the member’s tax liability. above, an additional 5 percent of the (5) Deductions for the Servicemen’s member’s disposable earnings shall be Group Life Insurance coverage. withheld when the notice states that (6) Advances of pay received by the the total amount of the member’s sup- member before receipt of notice (see port payments is 12 or more weeks in paragraph (c)(1) of this section) that arrears. may be due and payable by the member

167 § 54.6 32 CFR Ch. I (7–1–97 Edition) at some future date. Requests for ad- (3) The Military Services shall pro- vances received after notice for a vide the member with the following: statutorily required support allotment (i) When possible, an in-person con- shall be reduced by the amount of the sultation with a judge advocate or statutorily required support allotment. legal officer of the Military Service (7) Other amounts required by law to concerned, to discuss the legal and be deducted. other factors, involved in the member’s (d) Notice to member and member’s support obligation and failure to make Commanding Officer. payment. (1) As soon as possible, but not later (ii) Copies any other documents sub- than 15 calendar days after the date of mitted with the notice. receipt of notice, the designated offi- (4) The member’s commanding official shall send to the member, at his or cer, or designee, shall confirm in writ- her duty station, written notice: ing to the designated official within 30 (i) That notice has been received days of notice that the member re- from an authorized person, including a ceived a consultation concerning the copy of the documents submitted. member’s support obligation and the consequences of failure to make pay- (ii) Of the maximum limitations pro- ments, or when appropriate, of the in- vided in 15 U.S.C. 1673, with a request ability to arrange such consultation that the member submit supporting af- and the status of continuing efforts to fidavits or other documentation nec- fulfill the consultation requirement. essary for determining the applicable (5) If, within 30 days of the date of percentage limitation. the notice, the member has furnished (iii) That the member may submit the designated official affidavits or supporting affidavits or other docu- other documentation showing the in- mentation as evidence that the infor- formation in the notice to be in error, mation contained in the notice is in the designated official shall consider error. the member’s response. The designated (iv) That by submitting supporting official may return to the authorized affidavits or other necessary docu- person, without action, the notice for a mentation, the member consents to the statutorily required support allotment disclosure of such information to the together with the member’s affidavit party requesting the support allot- and other documentation, if the mem- ment. ber submits substantial proof of error, (v) Of the amount or percentage that such as: will be deducted if the member fails to (i) The support payments are not de- submit the documentation necessary to linquent. enable the designated official to re- (ii) The underlying support order in spond to the notice within the pre- the notice has been amended, super- scribed time limits. seded, or set aside. (vi) That a consultation with a judge (e) Payments. (1) Except as provided advocate or legal officer will be pro- in paragraph (e)(3) the Secretary of the vided by the Military Service, if pos- Military Department concerned, or sible, and that the member should im- designee, shall make the support allot- mediately contact the nearest legal ment by the first end-of-month payday services office. after the designated official is notified (vii) Of the date that the allotment is that the member has had a consulta- scheduled to begin. tion with a judge advocate or legal offi- (2) The designated official shall no- cer, or that a consultation was not pos- tify the member’s commanding officer, sible, but not later than the first end- or designee, of the need for consulta- of-month payday after 30 days have tion between the member and a judge elapsed from the date of the notice to advocate or legal officer. The des- the member. The Military Services will ignated official shall provide the mem- not be required to vary their normal ber’s commanding officer, or designee, military allotment payment cycle to with a copy of the notice and other comply with the notice. legal documentation served on the des- (2) If several notices are sent with re- ignated official. spect to the same member, payments

168 Office of the Secretary of Defense § 55.3 shall be satisfied on a first-come, first- the designated official shall not be reserved basis within the amount limita- quired to ascertain whether the au- tions in paragraph (a)(5) of this section. thority that issued the order had ob- (3) When the member identified in tained personal jurisdiction over the the notice is found not to be entitled to member. money due from or payable by the Mili- (f) List of designated officials. tary Service, the designated official Army—Commander, U.S. Army Finance shall return the notice to the author- and Accounting Center, ATTN: FINCL–G, In- ized person and shall advise him or her dianapolis, IN 46249–0160, (317) 542–2155. that no money is due from or payable Navy—Director, Navy Family Allowance by the Military Service to the named Activity, Anthony J. Celebrezze Federal individual. When it appears that Building, Cleveland, OH 44199, (216) 522–5301. amounts are exhausted temporarily or Air Force—Commander, Air Force Ac- otherwise unavailable, the authorized counting and Finance Center, ATTN: JA, Denver, CO 80279, (303) 370–7524. person shall be told why, and for how Marine Corps—Commanding Officer, Ma- long, any money is unavailable, if rine Corps Finance Center (Code AA), Kansas known. If the member separates from City, MO 64197, (816) 926–7103. active duty, the authorized person shall be informed that the allotment is PART 55—PHYSICAL EXAMINA- discontinued. (4) Payment of statutorily required TIONS AND ANNUAL CERTIFI- allotments shall be enforced over other CATES OF PHYSICAL CONDITION voluntary deductions and allotments when the gross amount of pay and al- Sec. 55.1 Purpose. lowances is not sufficient to permit all 55.2 Applicability. authorized deductions and collections. 55.3 Policy. (5) The authorized person or allottee shall notify the designated official AUTHORITY: 10 U.S.C. 1004(a). promptly if the operative court order SOURCE: 25 FR 14357, Dec. 31, 1960, unless upon which the allotment is based is otherwise noted. vacated, modified, or set aside. The designated official shall also be noti- § 55.1 Purpose. fied of any events affecting the To establish a uniform policy relat- allottee’s eligibility to receive the al- ing to physical examinations and cer- lotment, such as the former spouse’s tificates of physical condition for re- remarriage, if a part of the payment is servists (other than retired reservists) for spousal support, and notice of a when not on active duty. change in eligibility for child support payments under circumstances of § 55.2 Applicability. death, emancipation, adoption, or at- This part applies to all Military De- tainment of majority of a child whose partments in the administration of support is provided through the allot- members of reserve components. ment. (6) An allotment established under § 55.3 Policy. this Directive shall be adjusted or dis- (a) Each member of the Ready Re- continued upon notice from the author- serve who is not on active duty shall be ized person. examined as to his physical fitness at (7) Neither the Department of De- least once every four years, or more fense, nor any officer or employee often as the Secretary concerned con- thereof, shall be liable for any payment siders necessary, and shall execute and made from moneys due from, or pay- submit annually a certificate of phys- able by, the Department of Defense to ical condition. any individual pursuant to notice regu- (b) Each member of the Standby Re- lar on its face, if such payment is made serve in an active status, or on an inac- in accordance with this part. If a des- tive status list, shall execute and sub- ignated official receives notices based mit annually a certificate of physical on a support order which, on its face, condition. appears to conform to the laws of the (c) Members of the Standby Reserve jurisdiction from which it was issued, may be examined as to their physical

169 § 56.1 32 CFR Ch. I (7–1–97 Edition) condition if the Secretary concerned amended by Pub. L. 93–516, 88 Stat. 1619; Ex- considers such action necessary. ecutive Order 12250; Executive Order 12291; (d) Physical examinations will be re- Executive Order 12067. ported on Standard Form 88, ‘‘Report SOURCE: 47 FR 15124, Apr. 8, 1982, unless of Physical Examination’’ and Stand- otherwise noted. ard Form 89, ‘‘Report of Medical His- tory.’’ To accomplish physical exami- § 56.1 Purpose. nations, the Military Departments are This part implements section 504 of authorized to use jointly all available Public Law 93–112, ‘‘Rehabilitation Act medical facilities and to award points of 1973,’’ September 26, 1973 (29 U.S.C. creditable toward retirement to medi- 794) (1976); section 111 of Pub. L. 93–516, cal reservists not on active duty for administering physical examinations or ‘‘Rehabilitation Act Amendments of to use civilian physicians on a reim- 1974,’’ December 7, 1974 (29 U.S.C. 706, bursable basis where governmental 780, 790) (1976); section 119 of Pub. L. 95– medical facilities are not available. 602, ‘‘Rehabilitation, Comprehensive (e) The following action may be Services, and Developmental Disabil- taken in regard to those reservists fail- ities Amendments of 1978,’’ November ing to submit such information as may 6, 1978 (29 U.S.C. 794) (supp. III 1979); be requested by the appropriate Sec- and Department of Justice Regulation, retary after every reasonable effort has ‘‘Implementation of Executive Order been made to obtain such information: 12250, Nondiscrimination on the Basis (1) Reservists having obligation of Handicap in Federally Assisted Pro- under the Universal Military Training grams,’’ August 11, 1981 (28 CFR part and Service Act, as amended, may be 41) to prohibit discrimination based on ordered to active duty or active duty handicap in programs and activities re- for training, as deemed appropriate ceiving Federal financial assistance under the provisions of section 672(b), disbursed by the Department of De- title 10, U.S. Code, for the purpose of fense and in programs and activities securing the necessary information. conducted by the Department of De- (2) All other reservists may be con- fense. sidered for discharge pursuant to section 1162(a) of title 10 U.S. Code. § 56.2 Applicability and scope. (a) This part applies to the Office of PART 56—NONDISCRIMINATION the Secretary of Defense, the Military ON THE BASIS OF HANDICAP IN Departments, the Organization of the PROGRAMS AND ACTIVITIES AS- Joint Chiefs of Staff, the National SISTED OR CONDUCTED BY THE Guard Bureau, and the Defense Agen- DEPARTMENT OF DEFENSE cies (hereafter referred to as ‘‘DoD Components’’) insofar as they: Sec. (1) Extend Federal financial assist- 56.1 Purpose. 56.2 Applicability and scope. ance to programs and activities that 56.3 Definitions. affect handicapped persons in the Unit- 56.4 Policy. ed States and that are covered by this 56.5 Responsibilities. part (see § 56.7(b)). 56.6 Information requirements. (2) Conduct programs and activities 56.7 Programs and activities subject to this that affect handicapped persons in the part. 56.8 Guidelines for determining discrimina- United States and that are covered by tory practices. this part (see § 56.7(c)). 56.9 Ensuring compliance with this part in (b) This part also applies to each re- Federal financial assistance programs cipient of Federal financial assistance and activities. disbursed by the Department of De- 56.10 Ensuring compliance with this part in programs and activities conducted by the fense and to each program and activity Department of Defense. that receives or benefits from such assistance, insofar as such recipient, pro- AUTHORITY: Pub. L. 93–112, sec. 504 29 U.S.C. 794, as amended by Pub. L. 95–602, 92 Stat. gram, or activity affects a handicapped 2982; Pub. L. 93–112, sec. 7, 29 U.S.C. 706, as person in the United States.

170 Office of the Secretary of Defense § 56.3

§ 56.3 Definitions. as mental retardation, organic brain (a) Facility. All or any portion of syndrome, emotional or mental illness, buildings, structures, equipment, and specific learning disabilities. The roads, walks, parking lots, or other term includes such diseases and condi- real or personal property or any inter- tions as orthopedic, visual, speech, and est in such property. hearing impairments; cerebral palsy, (b) Federal financial assistance. Any epilepsy, and muscular dystrophy; mul- grant, loan, contract (other than a pro- tiple sclerosis; cancer; heart disease; curement contract or a contract of in- diabetes; drug abuse; and alcoholism. surance or guaranty), or any other ar- (2) Major life activities. Functions such rangement by which the Federal Gov- as caring for one’s self, performing ernment provides or otherwise makes manual tasks, walking, seeing, hear- available assistance in the form of: ing, speaking, breathing, learning, and (1) Funds. working. (2) Services performed by Federal (3) Has a record of such an impairment. personnel, including technical assist- Has a history of, or has been ance, counseling, training, and provision of statistical or expert informa- misclassified as having, a mental or tion. physical impairment that substantially (3) Real and personal property or any limits one or more major life activi- interest in or use of such property, in- ties. cluding: (4) Is regarded as having an impair- (i) Transfers or leases of such prop- ment. Has: (i) A physical or mental im- erty for less than fair market value or pairment that does not substantially for reduced consideration. limit major life activities but is treat- (ii) Proceeds from a subsequent ed by a recipient or DoD Component as transfer or lease of such property if the constituting such a limitation; Federal share of its fair market value (ii) A physical or a mental impair- is not returned to the Federal government that substantially limits major ment. life activities only as a result of the at- (c) Any person Handicapped person. titudes of others toward such impair- who has a physical or mental impairment; or ment that substantially limits one or more major life activities, has a record (iii) None of the impairments defined of such an impairment, or is regarded above, but is treated by a recipient or as having such an impairment. For DoD Component as having such an im- purposes of this Directive as it relates pairment. to employment programs of recipients, (d) Historic properties. Those prop- such term does not include any individ- erties listed or eligible for listing in ual who is an alcoholic or drug abuser the National Register of Historic and whose current use of alcohol or Places. drugs prevents such individual from (e) Include; such as. Not all the pos- performing the duties of the job in sible items are covered, whether like or question, or whose employment, by unlike the ones named. reason of such current alcohol or drug (f) Qualified handicapped person. A abuse, would constitute a direct threat handicapped person who: to property or to the safety of others. (1) With respect to employment, can As used in this paragraph: perform the essential functions of the (1) Any Physical or mental impairment. job in question with reasonable accom- physiological disorder or condition, modation. cosmetic disfigurement, or anatomical loss affecting one or more of the fol- (2) With respect to services, meets lowing body systems: Neurological; the essential eligibility requirements musculoskeletal and special sense or- for receiving the services in question. gans; respiratory, including speech or- (g) Recipient. Any State or political gans; cardiovascular; reproductive; di- subdivision or instrumentality thereof, gestive; genito-urinary; hemic and any public or private agency, institu- lymphatic; skin; and endocrine; or any tion, organization, or other entity, or mental or psychological disorder, such

171 § 56.4 32 CFR Ch. I (7–1–97 Edition) any person that receives Federal finan- cials within 15 calendar days of such a cial assistance directly or through an- selection. other recipient, including any succes- (3) Issue guidelines pursuant to § 56.9. sor, assignee, or transferee of a recipi- (4) Cooperate fully with the ent, but not the ultimate beneficiary of ASD(MRA&L), or designee, in that offi- the assistance. The term includes per- cial’s performance of the responsibil- sons and entities applying to be recipi- ities assigned herein, including furnish- ents. ing to the ASD(MRA&L), or designee, (h) Substantial impairment. A signifi- in a timely fashion any requested re- cant loss of the integrity of finished ports and information. materials, design quality, or special (5) Assign sufficient personnel to im- character resulting from a permanent plement and to ensure effective en- alteration. forcement of this part.

§ 56.4 Policy. § 56.6 Information requirements. It is DoD policy that no qualified (a) Each DoD Component shall main- handicapped person shall be subjected tain a log of all complaints that are to discrimination on the basis of handi- filed with it or its recipients under this cap under any program or activity that part. The log shall contain the com- receives or benefits from Federal finan- plainant’s name (last name, first, and cial assistance disbursed by a DoD middle initial) and address (street ad- Component or under any Federal pro- dress, city, State, and zip code), the re- gram or activity that is conducted by a cipient’s name (if this refers to a per- DoD Component. Guidelines for deter- son, last name, first, and middle ini- mining actions that discriminate tial) and address (street address, city, against handicapped persons are pre- State, and zip code), the nature of the scribed in § 56.8. complaint, and the current status of the complaint investigation or resolu- § 56.5 Responsibilities. tion. Each DoD Component shall submit a narrative summary report on (a) The Assistant Secretary of Defense complaints by memorandum to the (Manpower, Reserve Affairs, and Logis- ASD(MRA&L), or designee, before July tics) (ASD(MRA&L)), or designee, shall 15 and January 15 of each year. This re- monitor compliance with this part. In porting requirement has been assigned discharging this responsibility, the Report Control Symbol DD–M(SA)1596. ASD(MRA&L), or designee, shall: (b) Each DoD Component shall sub- (1) Coordinate efforts of DoD Compo- mit a narrative report by memorandum nents to enforce this part. to the ASD(MRA&L), or designee, (2) Assist in the development of whenever, pursuant to enclosure 4 of standards and procedures promulgated this directive, the DoD Component no- pursuant to § 56.9. tifies an applicant or recipient that (3) Perform the responsibilities as- noncompliance with this part is indi- signed to the ASD(MRA&L) in § 56.8, 9, cated. The report shall include the re- and 10. cipient’s name (if this refers to a per- (4) Otherwise assist DoD Components son, last name, first, and middle ini- in implementing this part. tial) and address (street address, city, (b) The Heads of DoD Components State, and zip code), the date shall comply with this part. In dis- (YYMMDD) and nature of the finding, charging this responsibility, they shall: and the name of the applicable feder- (1) Designate a policy-level official to ally assisted program or activity. This ensure compliance with this part re- reporting requirement has been as- ceive and investigate complaints filed signed Report Control Symbol DD– under this part and otherwise manage M(AR)1597. DoD Component responsibilities under (c) The recordkeeping requirements this part. contained in § 56.9(c)(2), have been ap- (2) Notify the ASD(MRA&L), or des- proved by the Office of Management ignee, of the name, position, location, and Budget (OMB) under 44 U.S.C. and telephone number of persons se- chapter 35 and have been assigned OMB lected by them to be policy-level offi- No. 0704–0102.

172 Office of the Secretary of Defense § 56.7

§ 56.7 Programs and activities subject (9) Title 16 U.S. Code, section 460d to this part. (1976): Construction and operation of (a) This part applies to all DoD Com- public park and recreational facilities ponents and recipients of Federal fi- in water resource development projects nancial assistance disbursed by a DoD under the administrative jurisdiction Component insofar as the programs of the Department of the Army. and activities of the DoD Components (10) Title 33 U.S. Code, section 701c–3 and recipients affect handicapped per- (1976): Payment to States of lease re- sons in the United States. Existing pro- ceipts from lands acquired by the Unit- grams and activities that are assisted ed States for flood control, navigation, or conducted by a DoD Component and and allied purposes. that are subject to this part but do not (11) Title 33 U.S. Code, sections 558c appear in paragraph (b) or (c) of this and 702d–1 (1976); title 10, U.S. Code, section, are covered even though not sections 2668 and 2669 (1976); title 43, listed. DoD Components must report U.S. Code, section 961 (1976); and title new programs and activities that are 40, U.S. Code, section 319 (1976): Grants subject to this part to the ASD of easements without consideration, or (MRA&L), or designee, within 15 cal- at a nominal or reduced consideration, endar days of their creation or funding. on land under the control of the De- (b) Federal financial assistance pro- partment of the Army at water re- grams subject to this part include: (1) source development projects. title 32, United States Code, sections (12) Title 33 U.S. Code, sections 540 101–716 (1976 and supp. III 1979): the and 577 (1976): Army Corps of Engineers Army and Air National Guard. assistance in the construction of small (2) Title 40, U.S. Code, sections 483, boat harbor projects. 484, and 512 (1976); title 49, U.S. Code, (13) Title 33 U.S. Code, section 701s sections 1101 and 1107 (1976); and title (1976): Emergency bank protection 10, U.S. Code, sections 2541, 2544, 2571, works constructed by the Army Corps 2576, 2662, 7308, 7541, 7542, 7545, 7546, and of Engineers for protection of high- 7547 (1976 and supp. IV 1980): Various ways, bridge approaches, and public programs involving the loan or other works. disposition of surplus, obsolete, or un- (14) Title 33 U.S. Code, section 633 claimed property. (1976): Army Corps of Engineers con- (3) Title 10 U.S. Code, sections 4307– tracts for the protection, alteration, 4311 (1976), and the annual Department reconstruction, relocation, or replace- of Defense Appropriations Act: Na- ment of structures and facilities. tional Program for the Promotion of (15) Title 50 U.S. Code, section 453 Rifle Practice. (1976): Defense Logistics Agency loans (4) Secretary of the Navy Instruction of industrial equipment to educational 5720.19E, ‘‘Navy Science Cruiser Pro- institutions (Tools for Schools). gram,’’ February 24, 1977. (16) Title 33 U.S. Code, section 610 (5) Title 10 U.S. Code, section 9441 (1976): Provision of specialized services (1976 and supp. IV 1980): Civil Air Pa- or technical information by the Army trol. Corps of Engineers to State and local (6) Title 41 U.S. Code, sections 501–509 governments for the control of aquatic (supp. III 1979): Federal grants and co- plant growths in rivers, harbors, and operative agreements. allied waters. (7) Title 33 U.S. Code, section 426 (17) Title 42 U.S. Code, section 1962d– (1976 and supp. III 1979): Army Corps of 16 (1976): Provision of specialized serv- Engineers participation in cooperative ices by the Army Corps of Engineers to investigations and studies concerning any State for the preparation of com- the erosion of shores of coastal and prehensive plans for drainage basins lo- lake waters. cated within the boundaries of said (8) Title 33 U.S. Code, sections 426e– State. 426h (1976): Army Corps of Engineers (18) Title 33 U.S. Code, section 603a assistance in the construction of works (1976): Provision of specialized services for the restoration and protection of by the Army Corps of Engineers to im- shores. prove channels for navigation.

173 § 56.8 32 CFR Ch. I (7–1–97 Edition)

(19) Title 33 U.S. Code, section 701g Federal financial assistance disbursed (1976): Provision of specialized services by the Department of Defense. by the Army Corps of Engineers to re- (2) A recipient or DoD Component duce flood damage. may not, directly or through contrac- (20) Title 24 U.S. Code, sections 44c tual, licensing, or other arrangements, and 47 (1976): United States Soldiers’ on the basis of handicap: and Airmen’s Home. (i) Provide different or separate aid, (21) Title 10 U.S. Code, chapter 55, as benefits, or services to handicapped implemented by DoD 6010.8–R, ‘‘Civil- persons than is provided to others un- ian Health and Medical Program of the less such action is necessary to provide Uniformed Services (CHAMPUS),’’ Jan- qualified handicapped persons with aid, uary 10, 1977. benefits, or services that are equal to (c) All programs and activities con- those provided to others; ducted by the Department of Defense (ii) Deny a qualified handicapped per- that affect handicapped persons in the son the opportunity to participate in United States are subject to this part. or benefit from the aid, benefit, or They include: service; (1) Promulgation of rules and regula- (iii) Afford a qualified handicapped tions for public comment in a manner person an opportunity to participate in that grants handicapped persons a rea- or benefit from the aid, benefit, or sonable opportunity for such comment service that is not equal to that af- (such as by making cassette recordings forded others; of proposed rules). (iv) Provide a qualified handicapped (2) Public meetings, conferences, or person with an aid, benefit, or service seminars sponsored or conducted by a DoD Component but held in nongov- that is not as effective as that afforded ernmental buildings. to others; or (3) Public meetings, conferences, or (v) Otherwise limit a qualified handi- seminars sponsored or conducted by a capped person in the enjoyment of any DoD Component or by a non-DoD orga- right, privilege, advantage, or oppor- nization but held in a DoD building. tunity granted to others receiving the (4) Open houses, memorial services, aid, benefit, or service. tours, or other ceremonies held on or (3) A recipient or DoD Component in DoD property. may not deny a qualified handicapped (5) Military museums. person the opportunity to participate (6) Historic vessels. in programs or activities that are not (7) Historic buildings and properties separate or different from regular pro- maintained by a DoD Component and grams or activities, even if such sepa- properties designated as historic under rate or different programs and activi- a statute of the appropriate State or ties are permissible under paragraph local governmental body. (a)(2)(i) of this section. (8) Schools operated by the Depart- (4) A recipient or DoD Component ment of Defense within the United may not provide assistance to an agen- States pursuant to section 6 of Public cy, organization, or person that dis- Law 81–874, title 20, U.S. Code, section criminates on the basis of handicap in 241 (1976). providing any aid, benefit, or service to beneficiaries of the recipient’s program § 56.8 Guidelines for determining dis- or activity. criminatory practices. (5) A recipient of DoD Component (a) General prohibitions against dis- may not deny, on the basis of handicap, crimination. (1) No qualified handi- a qualified handicapped person the op- capped person shall, on the basis of portunity to participate as a member handicap, be excluded from participa- of planning or advisory boards. tion in, be denied the benefit of, or oth- (6) A recipient or DoD Component erwise be subjected to discrimination may not use, directly or through con- under any program or activity that is tractual or other arrangements, cri- conducted by the Department of De- teria or methods of administration fense or that receives or benefits from that:

174 Office of the Secretary of Defense § 56.8

(i) Subject qualified handicapped per- certified sign-language interpreters, sons to discrimination on the basis of telecommunication devises (TDDs), or handicap; other telephonic devices for individuals (ii) Defeat or substantially impair ac- with impaired sensory, manual, or complishment of the objectives of the speaking skills. recipient’s or DoD Component’s pro- (b) Prohibitions against employment gram or activity with respect to handi- discrimination by recipients. (1) No quali- capped persons; or fied handicapped person shall, on the (iii) Perpetuate discrimination by an- basis of handicap, be subjected to dis- other recipient if both recipients are crimination in employment under any subject to common administrative con- program or activity that receives or trol or are agencies of the same State. benefits from Federal financial assist- (7) In determining the site or loca- ance disbursed by the Department of tion of a facility, a recipient or DoD Defense. Component may not make selections (2) The prohibition against discrimi- that: nation in employment applies to the (i) Exclude handicapped persons following: from, deny them the benefits of, or oth- (i) Recruitment, advertising, and erwise subject them to discrimination processing of applications for employ- under any program or activity that re- ment. ceives or benefits from Federal finan- (ii) Hiring, upgrading, promotion, cial assistance; or award of tenure, demotion, transfer, (ii) Defeat or substantially impair, layoff, termination, right of return with respect to handicapped persons, from layoff, and rehiring. the accomplishment of the objectives (iii) Rates of pay or any other form of of the program or activity. compensation and changes in com- (8) Recipients and DoD Components pensation. shall administer programs and activi- (iv) Job assignments, job classifica- ties in the most integrated setting ap- tions, organizational structures, posi- propriate to the needs of qualified tion descriptions, lines of progression, handicapped persons. and seniority lists. (9) Recipients and DoD Components (v) Leaves of absence, sick leave, or shall take appropriate steps to make any other leave. communications with their applicants, (vi) Fringe benefits available by vir- employees, and beneficiaries available tue of employment, whether or not ad- to persons with impaired vision and ministered by the recipient. hearing. (vii) Selection and financial support (10) This section may not be inter- for training, including apprenticeship, preted to prohibit the exclusion of: professional meetings, conferences and (i) Persons who are not handicapped other related activities, and selection from benefits, programs, and activities for leaves of absence for training. limited by Federal statute or Execu- (viii) Programs and activities spon- tive order to handicapped persons; or sored by the employer, including social (ii) One class of handicapped persons and recreational programs. from a program or activity limited by (ix) Any other term, condition, or Federal statute or Executive order to a privilege of employment. different class of handicapped persons. (3) A recipient may not participate in (11) Recipients and DoD Components a contractual or other relationship shall take appropriate steps to ensure that subjects qualified handicapped ap- that no handicapped individual is de- plicants or employees to discrimina- nied the benefits of, excluded from par- tion prohibited by this section, includ- ticipation in, or otherwise subjected to ing relationships with employment and discrimination under any program or referral agencies, labor unions, organi- activity receiving or benefiting from zations providing or administering Federal financial assistance disbursed fringe benefits to employees of the re- by the Department of Defense or under cipient, and organizations providing any program or activity conducted by training and apprenticeship programs. the Department of Defense because of (4) A recipient shall make reasonable the absence of auxiliary aids, such as accommodation to the known physical

175 § 56.8 32 CFR Ch. I (7–1–97 Edition) or mental limitations of an otherwise medical examination conducted prior qualified handicapped applicant or em- to the employee’s entrance on duty if: ployee unless the recipient can dem- (i) All entering employees are sub- onstrate that the accommodation jected to such an examination, regard- would impose an undue hardship on the less of handicap. operation of its program. Reasonable (ii) The results of such an examina- accommodation includes providing tion are used only in accordance with ramps, accessible restrooms, drinking this part which prohibits discrimina- fountains, interpreters for deaf employ- tion against a qualified handicapped ees, readers for blind employees, ampli- person on the basis of handicap. fied telephones, TDDs such as Tele- (9) Information obtained under this typewriters or Telephone Writers section concerning the medical condi- (TTYs), and tactile signs on elevators. tion or history of applicants shall be (5) A recipient may not use employ- collected and maintained on separate ment tests or criteria that discrimi- forms that shall be accorded confiden- nate against handicapped persons, and tiality as medical records, except that: shall ensure that employment tests are (i) Supervisors and managers may be adapted for use by persons who have informed about restrictions on the handicaps that impair sensory, man- work or duties of handicapped persons ual, or speaking skills. and about necessary accommodations. (6) A recipient may not conduct a (ii) First aid and safety personnel preemployment medical examination may be informed, when appropriate, if or make a preemployment inquiry a handicapping condition might re- about whether an applicant is a handi- quire emergency treatment. capped person or about the nature or (iii) Government officials investigat- severity of a handicap. A recipient may ing compliance with section 504, Pub. make, however, a preemployment in- L. 93–112, and this part shall be provided relevant information upon re- quiry into an applicant’s ability to per- quest. form job-related functions. (c) Program accessibility—(1) General (7) When a recipient is taking reme- requirements. No qualified handicapped dial action to correct the effects of person shall, because a recipient’s or past discrimination or is taking vol- DoD Component’s facilities are inac- untary action to overcome the effects cessible to or not usable by handi- of conditions that have resulted in lim- capped persons, be denied the benefits ited participation by handicapped per- of, be excluded from participation in, sons in its federally assisted program or otherwise be subjected to discrimi- or activity, the recipient may invite nation under any program or activity applicants for employment to indicate that receives or benefits from Federal whether and to what extent they are financial assistance disbursed by the handicapped if: Department of Defense or under any (i) The recipient makes clear to the program or activity conducted by the applicants that the information is in- Department of Defense. tended for use solely in connection (2) Existing facilities. (i) A recipient or with its remedial action obligations or DoD Component shall operate each pro- its voluntary affirmative action ef- gram or activity so that the program forts. or activity, when viewed in its en- (ii) The recipient makes clear to the tirety, is readily accessible to and usa- applicants that the information is ble by handicapped persons. This does being requested on a voluntary basis, not necessarily require a recipient or that it will be kept confidential as pro- DoD Component to make each of its ex- vided in paragraph (b)(9) in this sec- isting facilities or every part of an ex- tion, that refusal to provide it will not isting facility accessible to and usable subject the applicants to any adverse by handicapped persons. For guidance treatment, and that it will be used in determining the accessibility of fa- only in accordance with this part. cilities, see chapter 18 of DoD 4270.1–M, (8) Nothing in this section shall pro- ‘‘Department of Defense Construction hibit a recipient from conditioning an Criteria Manual,’’ June 1, 1978, and De- offer of employment on the results of a partment of the Army, Office of the

176 Office of the Secretary of Defense § 56.8

Chief of Engineers, Manual EM 1110–1– and (c)(2)(ii) of this section, through 103, ‘‘Design for the Physically Handi- such means as the acquisition or rede- capped,’’ October 15, 1976. Inquiries on sign of equipment, such as tele- specific accessibility design problems communication or other telephonic de- may be addressed to the ASD vices; relocation of classes or other (MRA&L), or designee. services to accessible buildings; assign- (ii) When structural changes are nec- ment of aides to beneficiaries, such as essary to make programs or activities readers or certified sign-language in- in existing facilities accessible to the terpreters; home visits; delivery of exent required by paragraph (c)(1) of health, welfare, or other services at ac- this section. cessible alternate sites; alteration of (A) Such changes shall be made as existing facilities and construction of soon as practicable, but not later than new facilities in conformance with 3 years after the effective date of this paragraph (c)(3) in this section; or any part however, if the program or activ- other method that results in making ity is a particular mode of transpor- the program or activity of the recipi- tation (such as a subway station) that ent or DoD Component accessible to can be made accessible only through handicapped persons. extraordinarily expensive structural (iv) A recipient or DoD Component is changes to, or replacement of, existing not required to make structural facilities and if other accessible modes changes in existing facilities when of transportation are available, the other methods are effective in achiev- DoD Component concerned may extend ing compliance with this section. this period of time. This extension (v) In choosing among available shall be for a reasonable and definite methods for meeting the requirements period, which shall be determined after of this section, a recipient or DoD consultation with the ASD(MRA&L), Component shall give priority to those or designee. methods that offer programs and ac- (B) The recipient or DoD Component tivities to handicapped persons in the shall develop, with the assistance of in- most integrated setting appropriate terested persons or organizations and with nonhandicapped persons. within a period to be established in each DoD Component’s guidelines, a (3) New Construction. New facilities transition plan setting forth the steps shall be designed and constructed to be necessary to complete such changes. readily accessible to and usable by (C) The recipient or DoD Component handicapped persons. Alterations to ex- shall make a copy of the transition isting facilities shall be designed and plan available for public inspection. At constructed, to the maximum extent a minimum, the plan shall: feasible, to be readily accessible to and (1) Identify physical obstacles in the usable by handicapped persons. For recipient’s or DoD Component’s facili- guidance in determining the accessibil- ties that limit the accessibility of its ity of facilities, see chapter 18 of DoD program or activity to handicapped 4270.1–M and Department of the Army, persons. Office of the Chief of Engineers, Man- (2) Describe in detail the methods ual EM 1110–1–103. Inquiries about spe- that will be used to make the facilities cific accessibility design problems may accessible. be addressed to the ASD(MRA&L), or (3) Specify the schedule for taking designee. the steps necessary to achieve full pro- (4) Historic properties. (i) In the case of gram accessibility and, if the time pe- historic properties, program accessibil- riod of the transition plan is longer ity shall mean that, when viewed in than 1 year, identify steps that will be their entirety, programs are readily ac- taken during each year of the transi- cessible to and usable by handicapped tion period. persons. Because the primary benefit of (4) Indicate the person (last name, historic properties is the experience of first, and middle initial) responsible for the property itself, DoD Components implementation of the transition plan. and recipients shall give priority to (iii) A recipient or DoD Component those methods of achieving program may comply with paragraphs (c)(2)(i) accessibility that make the historic

177 § 56.8 32 CFR Ch. I (7–1–97 Edition) property, or portions thereof, phys- the Advisory Council on Historic Pres- ically accessible to handicapped per- ervation regulation on ‘‘Protection of sons. Historic and Cultural Properties’’ (36 (ii) Methods of achieving program ac- CFR part 800) prior to effectuation of cessibility include: structural alterations. (A) Making physical alterations that (v) DoD Component guidelines pre- give handicapped persons access to oth- pared in accordance with § 56.10 shall erwise inaccessible areas or features of include a listing of all historic prop- historic properties. erties, including historic ships, subject (B) Using audiovisual materials and to this part and a plan for compliance devices to depict otherwise inaccessible with paragraph (c)(4) of this section. areas or features of historic properties. (5) Military museums. (i) In the case of (C) Assigning individuals to guide military museums, program accessibil- handicapped persons into or through ity shall mean that exhibits, displays, otherwise inaccessible portions of his- tours, lectures, circulating or traveling toric properties. exhibits, and other programs of mili- (D) Adopting other innovative meth- tary museums are accessible to and us- ods. able by handicapped persons. Methods (iii) When program accessibility can- of meeting this requirement include not be achieved without causing a sub- the following: stantial impairment of significant his- (A) Museum programs may be made toric features, the DoD Component or accessible to deaf and hearing-impaired recipient may seek a modification or persons by means such as training mu- waiver of access standards from the seum staff, such as docents, in sign lan- ASD (MRA&L), or designee. (A) A decision to grant a modifica- guage; providing qualified sign-lan- tion or waiver shall be based on consid- guage interpreters to accompany deaf eration of the following: or hearing-impaired visitors; ensuring (1) Scale of the property, reflecting that clear, concise language is used on its ability to absorb alterations. all museum signs and display labels; (2) Use of the property, whether pri- providing amplification devices; or pro- marily for public or private purposes. viding printed scripts for films, video- (3) Importance of the historic fea- tapes, lectures, or tours. DoD Compo- tures of the property to the conduct of nents are encouraged to use ‘‘Museums the program. and Handicapped Students: Guidelines (4) Costs of alterations in comparison for Educators,’’ published by the Na- to the increase in accessibility. tional Air and Space Museum, Smith- (B) The ASD(MRA&L), or designee, sonian Institution, Washington, DC shall review periodically any waiver 20560. granted under this paragraph and may (B) Museum programs may be made withdraw it if technological advances accessible to blind and visually-im- or other changes warrant. paired persons by means such as pro- (iv) The decision by the viding museum catalogues in a large- ASD(MRA&L), or designee, to grant a print edition printed over braille; pro- modification or waiver of access stand- viding cassette tapes, records, or discs ards is subject to section 106 of the Na- for museum tours or exhibits; provid- tional Historic Preservation Act, as ing readers to accompany blind or vis- amended, and shall be made in accord- ually impaired visitors; using large- ance with the Advisory Council on His- print and braille display cards at exhib- toric Preservation regulation on ‘‘Pro- its; providing raised-line maps of the tection of Historic and Cultural Prop- museum building; using raised-line erties’’ (36 CFR part 800). When the drawings, reproductions, or models of property is federally owned or when large exhibits to facilitate tactile expe- Federal funds may be used for alter- riences when touching exhibits is pro- ations, the ASD(MRA&L), or designee, hibited; placing large-print and braille shall obtain the comments of the Advi- signs to identify galleries, elevators, sory Council on Historic Preservation restrooms, and other service areas; and when required by section 106 of the Na- permitting guide dogs in all museum tional Historic Preservation Act and facilities.

178 Office of the Secretary of Defense § 56.9

(C) Museum programs may be made sider the following factors, at a mini- accessible to other physically impaired mum: persons by means such as lowering dis- (i) The overall size of the recipient’s play cases; spacing exhibits to facili- or DoD Component’s program or activ- tate movement; using ramps in gal- ity, such as the number of employees, leries; increasing lighting in exhibit number and type of facilities, and size areas to facilitate viewing from a dis- of budget. tance; providing places to sit in exhibit (ii) The size of the recipient’s or DoD areas; making restrooms accessible; Component’s operations, including the using large-print exhibit display cards composition and structure of the re- to facilitate reading from a distance; cipient’s or DoD Component’s and sensitizing museum staff to con- workforce. sider the needs of handicapped visitors (iii) The nature and cost of the ac- when organizing exhibits. commodation needed. (ii) DoD Component guidelines devel- (4) A recipient or DoD Component oped in accordance with paragraph may not deny any employment oppor- (c)(5) of this section shall identify mili- tunity to a qualified handicapped em- tary museums subject to paragraph (c) ployee or applicant for employment if of this section and shall contain a plan the basis for the denial is the need to for making museum programs acces- make reasonable accommodation to sible to handicapped persons. Technical the physical or mental limitations of assistance in the preparation and con- the employee or applicant. tent of these plans may be obtained from the National Access Center, 1419 § 56.9 Ensuring compliance with this 27th Street, NW., Washington, DC 20007 part in Federal financial assistance ((202) 333–1712 or TTY (202) 333–1339). In programs and activities. addition, community organizations that serve handicapped persons and (a) Supplementary guidelines issued by handicapped persons themselves shall DoD Components. (1) Whenever nec- be consulted in the preparation of essary, DoD Components shall publish these plans. supplementary guidelines for each type (d) Reasonable accommodation. (1) A of program or activity to which they recipient or DoD Component shall disburse Federal financial assistance make reasonable accommodation to within 120 days of the effective date of the known physical or mental limita- this part or of the effective date of any tions of an otherwise qualified handi- subsequent statute authorizing Federal capped applicant or employee unless financial assistance to a new type of the recipient or DoD Component dem- program or activity. DoD Components onstrates to the ASD(MRA&L), or des- shall obtain approval of these supple- ignee, that the accommodation would mentary guidelines from the impose an undue hardship on the oper- ASD(MRA&L), or designee, before issu- ation of its program. ing them. Prior to their issuance, the (2) Reasonable accommodation in- ASD(MRA&L), or designee, shall sub- cludes the following: mit supplementary guidelines prepared (i) Making facilities used by employ- pursuant to paragraph (a)(1) of this sec- ees readily accessible to and usable by tion to the Coordination and Review handicapped persons. Section, Civil Rights Division, Depart- (ii) Job restructuring; part-time or ment of Justice, for review and ap- modified work schedules; acquisition proval. To the extent that supple- or modification of equipment or de- mentary guidelines issued by DoD vices, such as telecommunication or Components deal with the employment other telephonic instruments; the proof civilians in programs and activities vision of readers or certified sign-lan- subject to this part the ASD(MRA&L), guage interpreters; and similar actions. or designee, shall also obtain the ap- (3) In determining whether an accom- proval of the Equal Employment Op- modation would impose an undue hard- portunity Commission (EEOC) in ac- ship on the operation of a recipient’s or cordance with Executive Order 12067. DoD Component’s program, the (2) The ASD(MRA&L), or designee, ASD(MRA&L), or designee, shall con- and DoD Components shall ensure that

179 § 56.9 32 CFR Ch. I (7–1–97 Edition) their supplementary guidelines con- mentary guidelines of that DoD Com- form to the requirements of this part ponent or that it is not necessary to and that they provide: issue such guidelines at all, the reasons (i) A description of the types of pro- for such determination shall be stated grams and activities covered. in writing and submitted to the (ii) Examples of prohibited practices ASD(MRA&L), or designee, for review likely to arise with respect to those and approval. Once that determination types of programs and activities. is approved, the DoD Component shall (iii) A list of the data collection and make it available to the public upon reporting requirements of the recipi- request. ents. (4) The heads of DoD Components, or (iv) Procedures for processing and in- designees, shall be responsible for vestigating complaints. keeping the supplementary guidelines (v) Procedures for hearings to deter- current and accurate. When a DoD mine compliance by recipients with Component determines that a program this part. or activity should be added to or de- (vi) Requirements or suggestions for leted from the guidelines, the DoD affirmative action on behalf of quali- Component shall notify the fied handicapped persons. ASD(MRA&L), or designee, in writing. (vii) Requirements for the dissemina- (b) Required assurances. (1) DoD Com- tion of program and complaint infor- ponents shall require all recipients to mation to the public. file written assurances that their pro- (viii) A description of the form of the grams or activities will be conducted assurances that must be executed pur- in accordance with this part and sup- suant to paragraph (b) of this section, plementary guidelines promulgated by and sample assurances. DoD Components. If a recipient fails to (ix) Requirements concerning the fre- provide an assurance that conforms to quency and nature of postapproval re- the requirements of this section, the views conducted pursuant to paragraph DoD Component shall attempt to effect (h) of this section. compliance pursuant to paragraphs (f) (x) A period of time, provided for by through (h) of this section, provided § 56.8(c)(2)(ii)(B), for the development of that if assistance is due and payable to a transition plan that sets out the the recipient based on an application steps necessary to complete structural approved prior to the effective date of changes that might be required by this part the DoD Component shall § 56.8(c). continue the assistance while any pro- (xi) The maximum period of time that may be allowed for extensions ceedings required by paragraphs (n) that might be granted pursuant to through (v) of this section, are pending. § 56.8(c)(2)(ii). (2) DoD Components shall advise each (xii) An appendix that contains a list recipient of the required elements of of identified programs and activities of the assurance and, with respect to each the type covered by the supplementary program or activity, of the extent to guidelines, including the names of the which those receiving assistance from programs and activities and the au- recipients shall be required to execute thorizing statute, regulation, or direc- similar assurances. tive for each program and activity. (3) DoD Component shall ensure that (xiii) Requirements for the recipient each assurance: to designate a responsible official to (i) Obligates the recipient to advise coordinate the implementation of sup- the DoD Component of any complaints plementary guidelines. received that allege discrimination (xiv) Requirements for any other ac- against handicapped persons. tions or procedures necessary to imple- (ii) Obligates the recipient to collect ment this part. and provide the items of information (3) When the head of a DoD Compo- that the DoD Component lists in its nent determines that it would not be supplementary guidelines pursuant to appropriate to include on or more of paragraph (a)(2)(iii) of this section. the provisions described in paragraph (iii) Is made applicable to any Fed- (a)(2) of this section, in the supple- eral financial assistance that might be

180 Office of the Secretary of Defense § 56.9 disbursed by a DoD Component without this part or of first receiving assistance the submission of a new application. from the Department of Defense and on (iv) Obligates the recipient, when the a continuing basis thereafter, each re- financial assistance is in the form of cipient shall notify beneficiaries and proprerty, for the period during which employees of their rights under this the property is used under a financial part and shall take appropriate steps assistance agreement or is possessed by to notify participants, beneficiaries, the recipient. applicants for employment and em- (v) Includes a provision recognizing ployees, including those with impaired that the U.S. Government has the right vision or hearing, and unions or profes- to seek judicial enforcement of section sional organizations involved in collec- 504 and this part. tive bargaining or professional agree- (c) Self-evaluation and consultation ments with the recipient that the re- with interested persons and organizations. cipient does not discriminate on the (1) DoD Components shall require re- basis of handicap in violation of this cipients to conduct, within 6 months of part. The notification shall state, when the effective date of this part or of first appropriate, that the recipient does not receiving Federal financial assistance discriminate in admitting or providing disbursed by the Department of De- access to or treating or employing per- fense, a self-evaluation with the assist- sons in its programs and activities. ance of interested persons, including Such notification may be accomplished handicapped persons or organizations by posting notices, publishing an- that represent them. When appro- nouncements in newspapers and maga- priate, DoD Components also shall re- zines, placing notices in its publica- quire recipients to consult at least an- tions, or distributing memoranda or nually with such persons. The ‘‘Depart- other written communications. ment of Health, Education, and Welfare (2) If a recipient publishes or uses and Section 504 Technical Assistance Re- makes available to participants, bene- serve Directory,’’ April 1980, shall be ficiaries, applicants for employment, consulted to identify likely sources for or employees recruitment materials or consultation. In conducting its self- publications containing general infor- evaluation, each recipient shall: mation about the recipient’s programs (i) Evaluate the effects of its policies and activities, it shall include in those and practices with respect to its com- materials or publications a statement pliance with this part and the applica- of the policy described in paragraph ble DoD Component’s supplementary (d)(1) of this section. This may be ac- guidelines. complished by including appropriate (ii) Modify any policies that do not inserts in existing materials and publi- meet such requirements. cations or by revising and reprinting (iii) Take appropriate remedial steps the materials and publications. to eliminate the discriminatory effects (3) Understandable materials devel- of any such policies or practices. oped in accordance with this section (2) For at least 3 years following the shall be provided to ensure that all completion of a self-evaluation re- beneficiaries and employees of the required under paragraph (c)(1) of this cipient understand the information. In section, a recipient shall maintain on addition, recipients shall disseminate file, make available for public inspec- appropriate and comprehensive infor- tion, and provide to the ASD(MRA&L), mation about formal and informal or designee, upon request: complaint and appeal procedures, in- (i) A list of the interested persons cluding directions on how and where to (last names, first names, and middle file complaints and to appeal DoD initials) consulted. Component decisions. (ii) A description of areas examined (e) Intimidation and interference. Re- and problems identified, if any, with cipients and DoD Components shall respect to those areas. take reasonable steps to ensure that no (iii) A description of any modifica- person intimidates, threatens, coerces, tion made and remedial steps taken. or discriminates against any individual (d) Dissemination of information. (1) for the purpose of retaliating against, Within 90 days of the effective date of interfering with, or discouraging the

181 § 56.9 32 CFR Ch. I (7–1–97 Edition) filing of a complaint, furnishing of in- other data submitted by the recipient, formation, or assisting or participating the DoD Component concerned shall rein an investigation, compliance review, quire the recipient to submit addi- hearing, or other activity related to tional information and shall take other the administration of this part. steps as necessary to determine the re- (f) Staff responsibilities. All DoD Com- cipient’s compliance with this part. If ponent determinations of recipient this additional information dem- compliance with this part shall be sub- onstrates that the recipient is in com- ject to reviews by the ASD(MRA&L), pliance with this part, the DoD Compo- or designee. When responsibility for ap- nent shall notify the recipient prompt- proving applications for Federal finan- ly that it is in compliance. cial assistance disbursed by a DoD (3) Preapproval onsite review. (i) When Component is assigned to regional or a desk audit application review con- area offices of the DoD Component, ducted pursuant to paragraph (h)(2) of personnel in such offices shall be des- this section indicates that the recipi- ignated to perform the functions de- ent might not be in compliance with scribed in paragraphs (h) and (o) through (w) of this section. this part, the DoD Component con- (g) Access to records and facilities. cerned may conduct a preapproval on- Each recipient shall permit access to site review at the recipient’s facilities its premises by DoD officials during before approving the disbursement of normal business hours when such ac- Federal financial assistance to the recess is necessary for conducting onsite cipient. The DoD Component shall con- compliance reviews or complaint inves- duct such a review: tigations, and shall allow such officials (A) When appropriate, if a desk audit to photograph facilities and to inspect application review reveals that the re- and copy any books, records, accounts, cipient’s compliance posture is ques- and other material relevant to deter- tionable because of a history of dis- mining the recipient’s compliance with crimination complaints, current dis- this part. Information so obtained shall crimination complaints, a noncompli- be used only in connection with the ad- ance determination by another govern- ministration of this part. If the recipi- ment agency or DoD Component, or ent does not have the information re- other indications of possible non- quested, it shall submit to the DoD compliance; or Component a written report that con- (B) If Federal financial assistance is tains a certification that the informa- requested for construction, except tion is not available and describes the under extraordinary circumstances, to good-faith efforts made to obtain the determine whether the location and de- information. sign of the project would provide serv- (h) Compliance review. DoD Compo- ice on a nondiscriminatory basis, in nents shall determine the compliance conformity with § 56.8(c). of each recipient with this part as fol- (ii) Preapproval onsite reviews shall lows: (1) General. Whenever possible, be conducted under DoD Component DoD Components shall perform compli- supplementary guidelines and in ac- ance reviews in conjunction with their cordance with the provisions of para- review and audit efforts implementing graph (h)(4) of this section, concerning title VI of the Civil Rights Act of 1964. postapproval reviews. (2) Desk audit application review. Be- fore approving an application for Fed- (4) Postapproval reviews. DoD Compo- eral financial assistance, the DoD Com- nents shall: (i) Establish and maintain ponent concerned shall make a written effective programs of postapproval re- determination as to whether the recipi- views. ent is in compliance with this part, (ii) Conduct such reviews of each re- based on a review of the assurance of cipient, the frequency and the nature compliance executed by a recipient of which shall be prescribed in the DoD pursuant to paragraph (b) of this sec- Component supplemetary guidelines tion, and other data submitted by the implementing this part. recipient. When a determination can- (iii) Require recipients periodically not be made from the assurance and to submit compliance reports to them.

182 Office of the Secretary of Defense § 56.9

(iv) Record the results of the reviews, (5) If a complaint concerning a pro- including findings of fact and rec- gram or activity is filed with a DoD ommendations. Component that does not have jurisdic- (5) A DoD Component shall complete tion over it, the DoD Component shall a review within 180 calendar days of refer the complaint to the initiating it unless an extension of ASD(MRA&L), or designee, and advise time is granted by the ASD(MRA&L), the complainant in writing of such re- or designee, for good cause shown, and ferral. The ASD(MRA&L), or designee, shall either: then shall refer the complaint to the (i) Find the recipient to be in compli- appropriate DoD Component and so no- ance and notify the recipient of that tify the complainant in writing. finding; or (j) Investigation by DoD components. (ii) Notify the recipient and the (1) DoD Components shall investigate ASD(MRA&L), or designee, of a finding complaints that involve recipients and of probable noncompliance, pursuant to that meet the standards described in paragraph (o) of this section. paragraph (i) of this section, unless (i) Filing of complaints against recipi- good cause for not investigating is ents. (1) DoD Components shall estab- stated in a written notification of the lish and publish in their supplementary disposition of the complaint provided guidelines procedures for the prompt to the complainant. processing and disposition of com- (2) If an investigation of a complaint plaints against recipients, consistent is conducted, the DoD Component con- with this section. cerned shall maintain a case record (2) A DoD Component shall consider that contains: all complaints that: (i) Are filed with it (i) The name (last name, first, and within 180 days of the alleged discrimi- middle initial), address (street address, nation or within a longer period of city, State, and zip code), and tele- time if an extension is granted for good phone number of each person inter- cause by the DoD Component with the viewed. approval of the ASD(MRA&L), or des- (ii) Copies, transcripts, or summaries ignee. of pertinent documents. (ii) Include the name, address, and (iii) A reference to at least one pro- telephone number, if any, of the com- gram or activity conducted by the re- plainant; the name and address of the cipient and receiving Federal financial recipient committing the alleged dis- assistance disbursed by a DoD Compo- crimination; a description of the acts nent, and a description of the amount or omissions considered to be discrimi- and nature of the assistance. natory; and other pertinent informa- (iv) A narrative report of the results tion. of the investigation that contains ref- (iii) Are signed by the complainant or erences to relevant exhibits and other the complainant’s authorized rep- evidence that relates to the alleged resentative (legal counsel or a person violations. with power of attorney granted by the (k) Investigations by recipients. (1) A complainant). DoD Component may require or permit (3) DoD Components shall transmit a recipients to investigate complaints al- copy of each complaint filed with them leging violation of this part. In such to the ASD(MRA&L), or designee, cases, the DoD Component shall: within 10 calendar days after its re- (i) Ensure that the recipient inves- ceipt. tigates the complaints in accordance (4) If the information in a complaint with the standards, procedures, and re- is incomplete, the DoD Component quirements prescribed in paragraph (j) shall request the complainant to proof this section. vide the additional information re- (ii) Require the recipient to submit a quired. If the DoD Component does not written report of each complaint and receive this requested information investigation to the DoD Component. within 30 calendar days of the date of (iii) Retain a review responsibility the request, the case may be closed and over the investigation and disposition the complainant so notified in writing. of each complaint.

183 § 56.9 32 CFR Ch. I (7–1–97 Edition)

(iv) Ensure that each complaint in- (i) Find that no further investigation vestigation is completed within 180 cal- is necessary and approve the results of endar days of the receipt of the com- the investigation; plaint by the proper DoD Component, (ii) Request further investigation by unless an extension of time is granted the DoD Component; or for good cause by the ASD(MRA&L), or (iii) Require the DoD Component to designee. take appropriate corrective action. (v) Require the recipient to maintain (n) Effecting compliance. (1) When a a log of all complaints filed against it, compliance review or complaint inves- as described in § 56.6(a)(1). tigation indicates that a recipient has (2) DoD Components that require or violated this part, the applicable DoD permit complaint investigations to be Component’s supplementary guide- conducted by recipients shall review lines, or the assurances executed pur- recipient complaint investigations pursuant to paragraph (b) of this section, suant to paragraphs (k) and (l) of this the responsible DoD Component or the section. ASD(MRA&L), or designee, shall at- (l) Results of investigations. (1) Within tempt to effect compliance in accord- 180 days of the receipt of a complaint, ance with paragraphs (o) and (p) of this the DoD Component, recipient, or the section. The inability of a DoD Compo- ASD(MRA&L), or designee, shall give nent to comply with any time frame written notification: prescribed by this part does not relieve (i) Of the disposition of the com- a recipient of the responsibility for plaint to the complainant and, as the compliance with this part. case may be, to the recipient or DoD (2) The DoD Component may require, Component. when necessary to overcome the effects (ii) To the complainant that within of discrimination in violation of this 30 calendar days of receipt of the writ- part, a recipient to take remedial ac- ten notification, the complainant may tion: request that the ASD(MRA&L), or des- (i) With respect to handicapped per- ignee, review the findings in the notifi- sons who are no longer participants in cation pursuant to paragraph (m) of the recipient’s program or activity but this section. who were participants in the program (2) If the complaint investigation re- or activity when such discrimination sults in a determination by the DoD occurred. Component that a recipient is not com- (ii) With respect to handicapped per- plying with this part the DoD Compo- sons who would have been participants nent shall proceed as prescribed in in the recipient’s program or activity paragraph (n) through (v) of this sec- had the discrimination not occurred. tion. If the DoD Component determines (iii) With respect to handicapped per- that the recipient is in compliance, the sons presently in the recipient’s pro- DoD Component shall submit the com- gram or activity, but not receiving full plete case file to the ASD(MRA&L), or benefits or equal and integrated treat- designee, within 15 calendar days after ment within the program or activity. the notification of the disposition of (o) Written notice. After evaluating the investigation to the complainant. the investigative report, the DoD Com- (m) Reviewing completed investigations. ponent shall issue to the recipient and, (1) The ASD(MRA&L), or designee, may pursuant to paragraph (n)(2) of this review all completed investigations. section to the ASD(MRA&L), or des- (2) The ASD(MRA&L), or designee, ignee, a written notice that: shall review the results of any inves- (1) Describes the apparent violation tigation of a complaint if the com- and the corrective actions necessary to plainant requests such a review pursu- achieve compliance. ant to paragraph (l)(1)(ii) of this sec- (2) Extends an offer to meet infor- tion. mally with the recipient. (3) After reviewing the results of an (3) Informs the recipient that failure investigation, the ASD(MRA&L), or to respond to the notice within 15 cal- designee, may: endar days of its receipt shall result in

184 Office of the Secretary of Defense § 56.9 the initiation of enforcement proce- (o) and (p) of this section, the DoD dures described in paragraphs (r) Component may, by order, subject to through (v), of this section. paragraph (q)(2) and (q)(3) of this sec- (p) Attempting to achieve voluntary tion: compliance by recipients. (1) If a DoD (i) Terminate, suspend, or refuse to Component issues a notice pursuant to grant or continue assistance to such paragraph (o) of this section, the DoD recipient. Component shall attempt to meet with (ii) Refer the case to the Department the recipient and shall attempt to per- of Justice for the initation of enforce- suade it to take the steps necessary to ment proceedings at a Federal, State, achieve compliance with this part. or local level. (2) If a recipient agrees to take reme- (iii) Pursue any remedies under State dial steps to achieve compliance, the or local law. DoD Component shall require that the (iv) Impose other sanctions upon con- agreement be in writing and: sultation with the ASD (MRASL), or (i) Be signed by the head of the DoD designee. Component concerned, or designee, and (2) Terminating, suspending, or refusing by the principal official of the recipi- to grant or continue assistance. A DoD ent. Component may not terminate or (ii) Specify the action necessary to refuse to grant or continue Federal fi- achieve compliance. nancial assistance unless: (iii) Be made available to the public (i) Such action has been approved by upon request. the Secretary of Defense. (iv) Be subject to the approval of the (ii) The DoD Component has given ASD(MRA&L), or designee. the recipient an opportunity for a hear- (3) If satisfactory adjustment or a ing pursuant to the procedures set out written agreement has not been in paragraph (r) of this section, and a achieved within 60 calendar days of the finding of noncompliance has resulted. recipient’s receipt of the notice issued pursuant to paragraph (o) of this sec- (iii) Thirty calendar days have tion, the DoD Component shall notify elapsed since the Secretary of Defense the ASD(MRA&L), or designee, and has filed a written report describing state the reasons therefor. the violation and action to be taken (4) The DoD Component shall initiate with the committees of the House of the enforcement actions prescribed in Representatives and Senate that have paragraphs (r) through (v) of this sec- jurisdiction over the program or activ- tion if: ity in which the violation of this part (i) The recipient does not respond to exists. a notice pursuant to paragraph (o) of (iv) Such action is limited to affect this section, within 15 calendar days of only the particular activity or pro- its receipt and satisfactory adjust- gram, or portion thereof, of the recipi- ments are not made within 45 calendar ent where the violation exists. days of the date of the recipient’s re- (3) Other sanctions. A DoD Component sponse; or may not impose the sanctions set out (ii) The DoD Component or the ASD in paragraphs (q)(1) (iii) and (iv) of this (MRA&L) determines at any time with- section, unless: in 90 days after the recipient receives a (i) The DoD Component has given the notice pursuant to paragraph (o) of this recipient an opportunity for a hearing section, that, despite reasonable ef- pursuant to paragraph (r) of this sec- forts, it is not likely that the recipient tion, and a finding of noncompliance will comply promptly and voluntarily. has resulted. (5) If, pursuant to paragraph (p)(4) of (ii) The action has been approved by this section, the DoD Component initi- the Secretary of Defense. ates enforcement action, it also shall (iii) Ten calendar days have elapsed continue its attempts to persuade the since the mailing of a notice informing recipient to comply voluntarily. the recipient of its continuing failure (q) Imposing sanctions—(1) Sanctions to comply with this part the action available. If a DoD Component has necessary to achieve compliance, and taken action pursuant to paragraphs the sanction to be imposed.

185 § 56.9 32 CFR Ch. I (7–1–97 Edition)

(iv) During those 10 calendar days the (ii) If a recipient waives its right to a DoD Component has made additional hearing under this section, the respon- efforts to persuade the recipient to sible DoD official shall decide the is- comply. sues and render a final decision that is (r) Hearings for recipients—(1) General. based on the information available and When, pursuant to paragraph (q)(2)(ii) that conforms to the requirements of of this section, an opportunity for a paragraph (s)(4) of this section. hearing is given to a recipient, the DoD (4) Hearing examiner. Hearings shall Component involved shall follow the be conducted by the responsible DoD procedures prescribed in paragraphs official or by a hearing examiner des- (r)(2) through (r)(6) of this section. ignated by the official, provided that (2) Notice. The DoD Component con- the hearing examiner shall be a field cerned shall notify the recipient of the grade officer or civilian employee opportunity for a hearing by registered above the grade of GS–12 (or the equiv- or certified mail, return receipt re- alent) who is admitted to practice law quested, when the recipient denies a before a Federal court or the highest tentative finding of noncompliance court of a State, territory, common- with this part. wealth, or the District of Columbia. (i) The DoD Component shall ensure (5) Right to counsel. In all proceedings that the notice: under this section, the recipient and (A) Describes the proposed sanctions the DoD Component may be rep- to be imposed. resented by counsel. The representa- (B) Cites the section of this part tion of the recipient will not be at U.S. under which the proposed action is to Government expense. be taken. (6) Procedures. Hearings authorized (C) States the name and office of the under this section shall be subject to DoD Component official who is respon- the following: (i) Hearings shall be sible for conducting the hearing (here- open to the public. after referred to as the ‘‘responsible (ii) Formal rules of evidence will not DoD official’’). apply. The DoD Component concerned (D) Outlines the issues to be decided and the recipient shall be entitled to at the hearing. introduce all relevant evidence on the (E) Advises the recipient either of a issues stated in the notice of hearing date, not less than 20 calendar days issued pursuant to paragraph (r)(2) of after the date that the notice is re- this section, and those designated by ceived, by which the recipient may re- the responsible DoD official or the quest that the matter be scheduled for hearing examiner at the outset of or a hearing, or of a reasonable time and during the hearing. The responsible place of a hearing that is subject to DoD official or hearing examiner, how- change for good cause shown. ever, may exclude irrelevant, immate- (ii) When a time and place for a hear- rial, or repetitious evidence. ing are set, the DoD Component shall (iii) All witnesses may be examined give the recipient and the complainant, or cross-examined, as the case may be, if any, reasonable notice of such time by each party. and place. (iv) All parties shall have the oppor- (3) Waiver of a hearing. A recipient tunity to examine all evidence offered may waive a hearing and submit to the or admitted for the record. responsible DoD official, in writing, in- (v) A transcript of the proceedings formation or arguments on or before shall be maintained in either elec- the date stated pursuant to paragraph tronic or typewritten form and made (r)(2)(i)(E) of this section. available to all parties. (i) A recipient waives its right to a (s) Decisions—(1) Initial or proposed de- hearing if it fails to request a hearing cisions by a hearing examiner. If a hear- on or before a date stated pursuant to ing is conducted by a hearing examiner paragraph (r)(2)(i)(E) of this section, or who is designated by the responsible fails to appear at a hearing that has DoD official pursuant to paragraph been scheduled pursuant to that para- (r)(4) of this section, the hearing exam- graph. iner shall either:

186 Office of the Secretary of Defense § 56.9

(i) Make an initial decision, if so au- shall render a final decision that con- thorized, that conforms to the require- forms to paragraph (s)(4) of this sec- ments of paragraph (s)(4) of this section. tion; or (4) Contents of decisions. Each decision (ii) Certify the entire record and sub- of a hearing examiner or responsible mit to the responsible DoD official rec- DoD official shall state all findings and ommended findings and a proposed de- conclusions and identify each violation cision. of this part. The final decision may (2) Review of initial decisions. Initial contain an order pursuant to paragraph decisions made by a hearing examiner (q) of this section, providing for the pursuant to paragraph (s)(1)(i) of this suspension or termination of or refusal section, shall be reviewed as follows: to grant or continue all or some of the (i) A recipient may file exceptions to Federal financial assistance under the an initial decision within 30 calendar program or activity involved and con- days of receiving notice of such initial tain terms, conditions, and other provi- decision. Reasons shall be stated for sions that are consistent with and in- each exception. tended to achieve compliance with this (ii) If the recipient does not file ex- Directive. ceptions pursuant to paragraph (s)(2)(i) (5) Notice of decisions and certifi- of this section, the responsible DoD of- cations. The responsible DoD official ficial may notify the recipient within shall provide a copy of any certified 45 calendar days of the initial decision record of a hearing and any initial or that the responsible DoD official will final decision to the recipient and the review the decisions. complainant, if any. (iii) If exceptions are filed pursuant (6) Review by the Secretary of Defense. to paragraph (s)(2)(i) of this section, or The responsible DoD official shall a notice of review is issued pursuant to transmit promptly any final decision paragraph (s)(2)(ii) of this section, the that orders a suspension, termination, responsible DoD official shall review or denial of Federal financial assist- the initial decision and, after giving ance through the ASD(MRA&L) to the the recipient reasonable opportunity to Secretary of Defense. The Secretary file a brief or other written statement may; of its contentions, issue a final decision (i) Approve the decision; that addresses each finding and conclu- (ii) Vacate the decision; or sion in the initial decision and each ex- (iii) Remit or mitigate any sanction ception, if any. imposed. (iv) If the exceptions described in (t) Restoring eligibility for financial as- paragraph (s)(2)(i) of this section are sistance. (1) A recipient that is affected not filed and the responsible DoD offi- adversely by a final decision issued cial does not issue the notice of review under paragraph (s) of this section, described in paragraph (s)(2)(ii) of this may at any time request the respon- section, the initial decision of the sible DoD official to restore fully its hearing examiner shall constitute the eligibility to receive Federal financial final decision of the responsible DoD assistance. official. (2) If the responsible DoD official de- (3) Decisions by the responsible DoD of- termines that the information supplied ficial who conducts a hearing or receives by the recipient demonstrates that it a certified record. If a hearing examiner has satisfied the terms and conditions who is designated by the responsible of the order entered pursuant to para- DoD official certifies the entire record graph (s) of this section, and that is and submits recommended findings and complying with and has provided rea- a proposed decision to the responsible sonable assurance that it will continue DoD official pursuant to paragraph to comply with this part the respon- (s)(1)(ii) of this section, or if the re- sible DoD official shall restore such eli- sponsible DoD official conducts the gibility immediately. hearing, after giving the recipient a (3) If the responsible DoD official de- reasonable opportunity to file a brief nies a request for restoration of eligi- or other written statement of its con- bility, the recipient may submit a writ- tentions, the responsible DoD official ten request for a hearing that states

187 § 56.9 32 CFR Ch. I (7–1–97 Edition) why it believes the responsible DoD of- (ii) Provides for the notification to ficial erred in denying the request. Fol- recipients and the responsible program lowing such a written request, the re- officials of the DoD Components in- cipient shall be given an expeditious volved of the assignment of enforce- hearing under rules of procedure issued ment responsibility. by the responsible DoD official to de- (4) No delegation agreement reached termine whether the requirements de- in accordance with paragraph (u)(3) to scribed in paragraph (t)(2) of this sec- this section shall be effective until it is tion, have been met. While any such approved by the ASD(MRA&L), or des- proceedings are pending, the sanctions ignee. imposed by the order issued under (5) When possible, existing delegation paragraph (s) of this section, shall re- agreements relating to title VI of the main in effect. Civil Rights Act of 1964 shall be amend- (u) Interagency cooperation and delega- ed to provide for the enforcement of tion. (1) When several recipients are receiving assistance for the same or simi- this part. lar purposes from a DoD Component (6) Any DoD Component conducting a and another Federal agency, the DoD compliance review or investigating a Component shall notify the ASD complaint of an alleged violation by a (MRA&L), or designee. Such notifica- recipient shall notify any other af- tion shall be in writing and shall con- fected agency or DoD Component tain: through the ASD(MRA&L), or des- (i) A description of the programs and ignee, upon discovery that the agency activities involved. or DoD Component has jurisdiction (ii) A statement of the amount of over the program or activity in ques- money expended on the programs and tion and shall subsequently inform it activities in the previous and current of the finding made. Such reviews or fiscal year by the DoD Component and investigations may be conducted on a the agency. joint basis. (iii) A list of the known primary re- (7) When a compliance review or com- cipients. plaint investigation under this part re- (2) The ASD(MRA&L), or designee, veals a possible violation of Executive shall attempt to negotiate with the Order 11246, titles VI or VII of the Civil Federal agency a written delegation Rights Act of 1964, or any other Federal agreement that designates the agency law, the DoD Component shall notify or the DoD Component as the primary the appropriate agency, through the agency for purposes of ensuring compli- ASD(MRA&L), or designee. ance with section 504 of Public Law 93– (v) Coordination with sections 502 and 112, as amended, and this part depend- 503. (1) DoD Components shall use DoD ing upon which of them administers a 4270.1–M and Department of the Army, larger financial assistance program Office of the Chief of Engineers, Man- with the common recipients and other relevant factors. If necessary, the ual EM 1110–1–103, in developing re- agreement shall establish procedures quirements for the accessibility of fa- to ensure the enforcement of section cilities. If DoD Components encounter 504 of Public Law 93–112, as amended, issues with respect to section 502 of the and this part. The ASD(MRA&L), or Rehabilitation Act of 1973, as amended, designee, shall provide written notifi- that are not covered by these publica- cation to recipients of an agreement tions, the ASD(MRA&L), or designee, reached under this subsection. may be consulted. If necessary, the (3) When several recipients are re- ASD(MRA&L), or designee, shall con- ceiving assistance for the same or simi- sult with the Architectural and Trans- lar purposes from two or more DoD portation Barriers Compliance Board Components, the DoD Components may in resolving such problems. negotiate a proposed written delega- (2) DoD Components may advise re- tion agreement that: cipients to consult directly with the (i) Assigns responsibility for ensuring Architectural and Transportation Bar- that the recipient complies with this riers Compliance Board in developing part to one of the DoD Components. accessibility criteria.

188 Office of the Secretary of Defense § 56.10

(3) DoD Components shall coordinate (2) DoD Components shall develop enforcement actions relating to the ac- procedures, such as posters or other de- cessibility of facilities with the Archi- vices, to notify participants in the pro- tectural and Transportation Barriers grams and activities listed in § 56.7(c) of Compliance Board and shall notify the their right to be free of discrimination ASD(MRA&L), or designee, of such co- because of handicap in those programs ordination. and activities and of their right to file (4) If a recipient is also a Federal complaints of discrimination with the contractor subject to section 503 of the ASD(MRA&L), or designee. Rehabilitation Act of 1973, as amended, (d) Investigations of complaints. (1) The and the regulations thereunder (41 CFR ASD(MRA&L), or designee, shall inves- part 60–741) and if a DoD Component tigate complaints of discrimination in has reason to believe that the recipient programs and activities that are con- is in violation thereof, the DoD Compo- ducted by DoD Components and are nent shall coordinate enforcement ac- subject to this part. tions with the Department of Labor, (2) A case record of each investiga- Office of Federal Contract Compliance tion shall be compiled in accordance Programs. The DoD Component shall with § 56.9(j)(2). notify the ASD(MRA&L), or designee, (e) Results of investigations. If the of such coordination. complaint investigation results in a determination by the ASD(MRA&L), or § 56.10 Ensuring compliance with this designee, that a DoD Component’s pro- part in programs and activities con- gram or activity is not complying with ducted by the Department of De- § 56.9, the ASD(MRA&L), or designee, fense. shall proceed as prescribed in § 56.9 (n) (a) Supplementary guidelines. (1) through (v). Hearings prescribed under Whenever necessary, the § 56.9(r) however, need not be con- ASD(MRA&L), or designee, shall pub- ducted. If the ASD(MRA&L), or des- lish supplementary guidelines for pro- ignee, determines that the DoD Compo- grams and activities that are con- nent is in compliance, the ducted by DoD Components and that ASD(MRA&L), or designee, shall notify are subject to this Directive. Prior to the complainant within 15 calendar their issuance, the ASD(MRA&L), or days of such determination. designee, shall submit supplementary (f) Written notice. If an investigative guidelines prepared pursuant to this report concludes that there has been a subsection to the Coordination and Re- violation of this part in a program or view Section, Civil Rights Division, De- activity conducted by a DoD Compo- partment of Justice, for review. nent and the ASD(MRA&L), or des- (2) The heads of DoD Components, or ignee, accepts that conclusion, that of- designees, shall be responsible for ficial shall issue to the head of the DoD keeping the supplementary guidelines Component a written notice describing described in this section current and the apparent violation, the corrective accurate. When a DoD Component head actions necessary to achieve compli- determines that a program or activity ance, and a suspense date for comple- should be added to or deleted from the tion of the corrective actions. guidelines, that official shall notify the (g) Effecting compliance. When nec- ASD(MRA&L), or designee, in writing. essary to overcome the effects of dis- (b) Staff responsibilities. The crimination in violation of this part ASD(MRA&L), or designee, shall deter- the ASD(MRA&L), or designee, may re- mine DoD Component compliance with quire a DoD Component to take reme- this part as it pertains to programs and dial action similar to that in activities that are conducted by DoD § 56.9(n)(2). Components and are subject to this (h) Employment. DoD Components part. that conduct Federal programs or ac- (c) Filing of complaints. (1) Complaints tivities covered by this part that in- of discrimination in a program or ac- volve employment of civilian persons tivity conducted by a DoD Component to conduct such a program or activity may be filed directly with the must comply with section 501 of the ASD(MRA&L), or designee. Rehabilitation Act of 1973, as amended,

189 § 57.1 32 CFR Ch. I (7–1–97 Edition) and the implementing rules and regula- eligible to enroll in the DoDDS under tions of the EEOC. DoD Directive 1342.13. (3) A comprehensive and multidisci- PART 57—PROVISION OF EARLY plinary program for early intervention INTERVENTION AND SPECIAL services for infants and toddlers with EDUCATION SERVICES TO ELIGI- disabilities and their families. BLE DOD DEPENDENTS IN OVER- (b) Establishes a National Advisory SEAS AREAS Panel (NAP) on Education for Children with Disabilities, ages 3 to 21, inclusive, and a DoD Inter-Component Coun- Sec. 57.1 Purpose. cil (ICC) on Early Intervention, in ac- 57.2 Applicability and scope. cordance with DoD Directive 5105.4 3. 57.3 Definitions. (c) Establishes a DoD Coordinating 57.4 Policy. Committee (DoD–CC) on Early Inter- 57.5 Responsibilities. vention, Special Education, and Medi- 57.6 Procedures. cally Related Services (MRS). Appendix A to part 57—Procedures for the Provision of Early Intervention Services (d) Authorizes implementing instruc- for Infants and Toddlers with Disabilities tions consistent with DoD 5025.1–M 4, and their Families and DoD forms consistent with DoD Appendix B to part 57—Procedures for Edu- 83201–M 5, DoD 8910.1–M 6, and DoD In- cation Programs and Services for Chil- struction 7750.7 7. dren with Disabilities, Aged 3 to 21, In- clusive § 57.2 Applicability and scope. Appendix C to part 57—The National Advi- sory Panel (NAP) on the Education of This part: Dependents with Disabilities (a) Applies to the Office of the Sec- Appendix D to part 57—DoD Coordinating retary of Defense, the Military Depart- Committee on Early Intervention, Spe- ments, the Chairman of the Joint cial Education, and Medically Related Chiefs of Staff, the Unified Combatant Services Appendix E to part 57—DoD Inter-Compo- Commands, the Inspector General of nent Coordinating Council (ICC) on Early the Department of Defense, the Defense Intervention Agencies, and the DoD Field Activities Appendix F to part 57—Mediation and Hear- (hereafter referred to collectively as ing Procedures ‘‘the DoD Components’’). AUTHORITY: 20 U.S.C. 921 and 1400. (b) Does not apply to schools operated by the Department of defense in SOURCE: 62 FR 2566, Jan. 17, 1997, unless otherwise noted. the United States, the District of Co- lumbia, the Commonwealth of Puerto § 57.1 Purpose. Rico, the Commonwealth of the North- This part: ern Marianna Islands, and the posses- (a) Implement policy and update re- sions of the United States (excluding sponsibilities and procedures under 20 the Trust Territory of the Pacific Is- U.S.C. 921–932, 20 U.S.C. 1400 et seq., lands and Midway Islands). DoD Directive 1342.6 1, and DoD Direc- (c) Applies to infants, toddlers, and tive 1342.13 2 for providing the follow- children receiving or entitled to re- ing: ceive early intervention services or (1) A free appropriate public edu- special educational instruction and re- cation (FAPE) for children with dis- lated services from the Department of abilities who are eligible to enroll in Defense, and their parents. the Department of Defense Dependent Schools (DoDDS). § 57.3 Definitions. (2) Early intervention services for in- Area superintendent. The Superintend- fants and toddlers birth through age 2 ent of a DoDDS area, or designee. years who, but for their age, would be 3 See footnote 1 to § 57.1(a). 1 Copies may be obtained, at cost, from the 4 See footnote 1 to § 57.1(a). National Technical Information Service, 5285 5 See footnote 1 to § 57.1(a). Port Royal Road, Springfield, VA 22161. 6 See footnote 1 to § 57.1(a). 2 See footnote 1 to § 57.1(a). 7 See footnote 1 to § 57.1(a).

190 Office of the Secretary of Defense § 57.3

Assessment. Techniques, procedures, reading), hearing evaluation, and and/or instruments used to measure speech conservation. the individual components of an eval- (4) Creation and administration of uation. programs for the prevention of hearing Assistive technology device. Any item, loss. piece of equipment, or product system (5) Counseling and guidance of pupils that is used to increase, maintain, or for the prevention of hearing loss. improve functional capabilities of chil- (6) Determination of the child’s need dren with disabilities. for group and individual amplification, Assistive technology service. Any serv- selecting and fitting an aid, and evalu- ice that directly assists an individual ating the effectiveness of amplifi- with a disability in the selection, ac- cation. quisition, or use of an assistive tech- Autism. A development disability sig- nology device. That term includes the nificantly affecting verbal and non- following: verbal communication and social inter- (1) The evaluation of the needs of an action generally evident before age 3 individual with a disability, including that adversely affects educational per- a functional evaluation in the individ- formance. That term does not include a ual’s customary environment. child with characteristics of the dis- (2) Purchasing, leasing, or otherwise ability termed ‘‘serious emotional dis- providing for the acquisition of turbance.’’ assistive technology devices by individ- Case study committee (CSC). (1) A uals with disabilities. school-level team comprised of, among (3) Selecting, designing, fitting, cus- others, the principal, other educators, tomizing, adapting, applying, main- parents, and MRS providers who do the taining, repairing, or replacing following: assistive technology devices. (i) Oversee screening and referral of (4) Coordinating and using other children who may require special edu- therapies, interventions, or services cation. with assistive technology devices, such (ii) Oversee the multidisciplinary as those associated with existing edu- evaluation of such children. cational and rehabilitative plans and (iii) Determine the eligibility of the programs. student for special education and relat- (5) Training or technical assistance ed services. for an individual with disabilities, or, (iv) Formulate an individualized edu- the family of an individual with dis- cation curriculum reflected in an Indi- abilities. vidualized Education Program (IEP), in (6) Training or technical assistance accordance with this part. for professionals (including individuals (v) Monitor the development, review, providing educational rehabilitative and revision of IEPs. services), employers, or other individ- (2) In addition to the required mem- uals who provide services to employ, or bers of the CSC, other membership will are otherwise substantially involved in vary depending on the purpose of the the major life functions of an individ- meeting. An area CSC, appointed by ual with a disability. the DoDDS Area Superintendent, acts Audiology. A service that includes the in the absence of a school CSC. Mem- following: bers of an area CSC may be assigned to (1) Identification of children with au- augment a school CSC. The area CSC ditory impairments. must have at least two members be- (2) Determination of the range, na- sides the parent. One of the DoDDS ture, and degree of hearing loss, and members must have the authority to communication functions including re- commit DoDDS resources; one shall be ferral for medical or other professional qualified to provide, or supervise the attention for the habilitation of hear- provision of special education. Other ing. members may be selected from the fol- (3) Provision of habilitative activi- lowing groups: ties, such as language habilitation, au- (i) DoDDS regular education person- ditory training, speech-reading (lip- nel.

191 § 57.3 32 CFR Ch. I (7–1–97 Edition)

(ii) DoDDS special education person- Developmental delay. That term nel. means the following: (iii) MRS personnel. (1) A significant discrepancy in the Child-find. The ongoing process used actual functioning of an infant, tod- by the DoDDS, the Military Depart- dler, or child, birth through age 5, ments, and the other DoD Components when compared with the functioning of to seek and identify children from a nondisabled infant, toddler, or child birth to age 21, inclusive, who may re- of the same chronological age in any of quire early intervention services or the following areas: physical, cog- special education and related services. nitive, communication, social or emo- Child-find activities include the dis- tional, and adaptive developmental as semination of information to the pub- measured using standardized evalua- lic, the identification and screening of tion instruments and confirmed by children, and the use of referral proce- clinical observation and judgment. dures. (2) High probability for developmental Children with disabilities (ages 3 To 21, delay. An infant or toddler, birth inclusive). Children, before graduation through age 2, with a diagnosed phys- from high school or completion of the ical or mental condition, such as chro- General Education Degree, who have mosomal disorders and genetic syn- one or more impairments, as deter- dromes, that places the infant or tod- mined by a CSC and who need special dler at substantial risk of evidencing a education and related services. developmental delay without the bene- Consent. That term means the follow- fit of early intervention services. ing: Early identification. The implementa- (1) The parent is fully informed of all tion of a formal plan for identifying a information about the activity for disability as early as possible in a which consent is sought in the native child’s life. language or in another mode of com- Early intervention services. (1) Devel- munication, if necessary. opmental services that meet the fol- (2) The parent understands and lowing criteria: agrees in writing to the implementa- (i) Are provided under the super- tion of the activity for which permis- vision of a Military medical Depart- sion is sought. That consent describes ment. the activity, lists the child’s records (if (ii) Are provided using Military any) to be released outside the Depart- Health Services System resources at no ment of Defense, and specifies to whom cost to the parents. Parents may be the records shall be sent. The signed charged in those instances where Fed- consent acknowledges the parent’s un- eral law provides for a system of pay- derstanding that the parental consent ments by families including a schedule is voluntary and may be revoked at of sliding fees, if any, (and incidental any time. fees identified in Service guidance) Counseling service. A service provided that are normally charged to infants, by a qualified social worker, psycholo- toddlers, and children without disabil- gist, guidance counselor, or other ities or to their parents. qualified personnel. (iii) Are designed to meet the devel- Deaf-blindness. Concomitant hearing opmental needs of an infant or toddler and visual impairments. That disabil- with a disability in any one or more of ity causes such severe communication, the following areas: developmental, and educational prob- (A) Physical. lems that it cannot be accommodated in special education programs solely (B) Cognitive. for children with deafness or blindness. (C) Communication. Deafness. A severe hearing loss or def- (D) Social or emotional. icit that impairs a child’s ability to (E) Adaptive development. process linguistic information through (iv) Meet the standards developed or hearing, with or without amplification, adopted by the Department of Defense. and affects the educational perform- (v) Are provided by qualified person- ance adversely. nel including early childhood special

192 Office of the Secretary of Defense § 57.3 educators, speech and language pa- Evaluation. The synthesis of assess- thologists and audiologists, occupa- ment information by a multidisci- tional therapists, physical therapists, plinary team used to determine wheth- psychologists, social workers, nurses, er a particular child has a disability, nutritionists, family therapists, ori- the type and extent of the disability, entation and mobility specialists, and and the child’s eligibility to receive pediatricians and other physicians. early intervention or special education (vi) Maximally, are provided in natu- and/or related services. ral environments including the home Family training, counseling, and home and community settings where infants visits. Services provided by social work- and toddlers without disabilities par- ers, psychologists, and other qualified ticipate. personnel to assist the family of an in- (vii) Are provided in conformity with fant or toddler eligible for early inter- an Individualized Family Service Plan vention services. Those services assist (IFSP). a family in understanding the special (2) Developmental services include, needs of the child and enhancing the but are not limited to, the following child’s development. services: family training, counseling, Free appropriate public education and home visits; special instruction; (FAPE). Special education and related speech pathology and audiology; occu- services that do the following: pational therapy; physical therapy; (1) Are provided at no cost to parents psychological services; service coordi- of a child with a disability, and are nation services; medical services only under the general supervision and di- for diagnostic or evaluation purposes; rection of the DoDDS. early identification, screening and as- (2) Are provided in the least restric- sessment services; vision services; and tive environment at a preschool, ele- social work services. Also included are mentary, or secondary school. assistive technology devices and (3) Are provided in conformity with assistive technology services; health an IEP. services necessary to enable the infant (4) Meet the requirements of this or toddler to benefit from the above part. early intervention services; and trans- Functional vocational evaluation. A portation and related costs necessary student-centered appraisal process for to enable an infant or toddler and the vocational development and career de- family to receive early intervention cision making. It allows students, edu- services. cators, and others to gather informa- Eligible. The term refers to children tion about such development and deci- who meet the age, command sponsor- sion making. Functional vocational ship, and dependency requirements es- evaluation activities for transitional, tablished by the DDEA, as amended, 20 vocational, and career planning; in- U.S.C. 921 et seq. and DoD Directive structional goals; objectives; and im- 1342.13. When those conditions are met, plementation. children without disabilities, ages 5 to Health services. Services necessary to 21, and children with disabilities, ages 3 enable an infant or toddler to benefit to 21, inclusive, are authorized to re- from the other early intervention serv- ceive educational instruction from the ices being received under this part. DoDDS. Additionally, an eligible infant That term includes the following: or toddler with disabilities is a child (1) Services such as clean intermit- from birth through age 2 years who tent catheterization, tracheotomy meets all of the DoDDS eligibility re- care, tube feeding, changing of quirements except for the age require- dressings or colostomy collection bags, ment. In school year 1994 through 1995, and other health services. multidisciplinary assessments, IFSPs, (2) Consultation by physicians with and case management services shall be other service providers about the spe- required and beginning in school year cial healthcare needs of infants and 1995 through 1996, an eligible infant or toddlers with disabilities that shall toddler is entitled to receive early need to be addressed in the course of intervention services, in accordance providing other early intervention with 20 U.S.C. 1400 et seq. services.

193 § 57.3 32 CFR Ch. I (7–1–97 Edition)

(3) That term does not include the of a licensed and credentialed physi- following: cian. (i) Services that are surgical or sole- Medically related services. (1) Medical ly medical. services (as defined in definition ‘‘Med- (ii) Devices necessary to control or ical services’’) are those services pro- treat a medical condition. vided under professional medical super- (iii) Medical or health services rou- vision, which are required by a CSC to tinely recommended for all infants or determine a student’s eligibility for toddlers. special education and, if the student is Hearing impairment. An impairment eligible, the special education and rein hearing, whether permanent or fluc- lated services required by the student tuating, which adversely affects a under this part. child’s educational performance, but is (2) Direct or indirect services under not included under deafness. the development or implementation of Independent evaluation. An evaluation an IEP necessary for the student to conducted by a qualified examiner who benefit from the educational curricu- is not employed by the DoDDS. lum. Those services may include medi- Individualized education program cal services for diagnostic or evalua- (IEP). A written document defining tive purpose, social work, community specially designed instruction for a health nursing, dietary, occupational student with a disability, ages 3 to 21, therapy, physical therapy, audiology, inclusive. That document is developed ophthalmology, and psychological test- and implemented, in accordance with ing and therapy. this part. Meetings. All parties attending a Individualized family service plan meeting to determine eligibility or (IFSP). A written document for an in- placement of a child shall appear per- fant or toddler, age birth through 2, sonally at the meeting site on issuance with a disability and the family of such of written notice and establishment of infant or toddler that is based on a a date convenient to the concerned par- multidisciplinary assessment of the ties. When a necessary participant is unique needs of the child and concerns unable to attend, electronic commu- and priorities of the family, and identi- nication suitable to the occasion may fies the early intervention and other be used to involve the unavailable services appropriate to meet such party. Parents generally shall be re- needs, concerns, and priorities. sponsible for the cost of travel to per- Infants and toddlers with disabilities. sonally attend meetings about the eli- Children, ages birth through 2, who gibility or placement of their child. need early intervention services be- Mental retardation. Significantly sub- cause they: average general intellectual function- (1) Are experiencing a developmental ing, existing concurrently with deficits delay; or, in adaptive behavior. That disability is (2) Have a diagnosed physical or men- manifested during the developmental tal condition that has high probability period and adversely affects a child’s of resulting in a developmental delay. educational performance. Inter-component. Cooperation among Multidisciplinary. The involvement of DoD organizations and programs, en- two or more disciplines or professions suring coordination and integration of in the integration and coordination of services to infants, toddlers, children services, including evaluation and as- with disabilities and to their families. sessment activities, and development Medical services. Those evaluative, di- of an IFSP or an IEP. agnostic, therapeutic, and supervisory Native language. When used with ref- services provided by a licensed and /or erence to an individual of limited Eng- credentialed physician to assist CSCs lish proficiency, the home language and to implement IEPs. Medical serv- normally used by such individuals, or ices include diagnosis, evaluation, and in the case of a child, the language nor- medical supervision of related services mally used by the parent of the child. that, by statute, regulation, or profes- Natural environments. Settings that sional tradition, are the responsibility are natural or normal (e.g., home or

194 Office of the Secretary of Defense § 57.3 day care setting) for the infant, tod- chronic or acute health problems that dler, or child’s same-age peers who adversely affect a child’s educational have no disability. performance. Such impairments in- Non-DoDDS placement. An assignment clude heart condition, tuberculosis, by the DoDDS of a child with a disabil- rheumatic fever, nephritis, asthma, ity to a non-DoDDS school or facility. sickle cell anemia, hemophilia, seizure Non-DoDDS school or facility. A public disorder, lead poisoning, leukemia, dia- or private school or other institution betes, or attention deficit disorder. not operated by the DoDDS. Parent. The biological father or Nutrition services. Those services to mother of a child; a person who, by infants and toddlers include the follow- order of a court of competent jurisdic- ing: tion, has been declared the father or (1) Conducting individual assess- mother of a child by adoption; the legal ments in nutritional history and die- guardian of a child; or a person in tary intake; anthropometric, bio- whose household a child resides, if such chemical, and clinical variables; feed- person stands in loco parentis to that ing skills and feeding problems; and child and contributes at least one-half food habits and food preferences. of the child’s support. (2) Developing and monitoring plans Parent counseling and training. A serv- to address the nutritional needs of in- ice to assist parents in understanding fants and toddlers eligible for early the special needs of their child’s devel- intervention services. opment and by providing them with in- (3) Making referrals to community formation on child development and resources to carry out nutrition goals. special education. Occupational therapy. That term in- Personally identifiable information. In- cludes services to address the func- formation that would make it possible tional needs of children (birth to age to identify the infant, toddler, or child 21, inclusive) related to adaptive devel- with reasonable certainty. Examples opment; adaptive behavior and play; include name, parent’s name, address, and sensory, motor, and postural devel- social security number, or a list of per- opment. Those services are designed to sonal characteristics. improve the child’s functional ability Physical therapy. That term includes to perform tasks in home, school, and services to children (birth to age 21, in- community settings, and include the clusive) to address the promotion of following: sensorimotor function through en- (1) Identification, assessment, and hancement of musculoskeletal status, intervention. neurobehavioral organization, percep- (2) Adaption of the environment and tual and motor development, selection, design, and fabrication of cardiopulmonary status, and effective assistive and orthotic devices to help environmental adaption. Those serv- development and promote the acquisi- ices include the following: tion of functional skills. (1) Screening, evaluation, and assess- (3) Prevention or minimization of the ment to identify movement dysfunc- impact of initial or future impairment, tion. delay in development, or loss of func- (2) Obtaining, interpreting, and inte- tional ability. grating information to appropriate pro- Orthopedic impairment. A severe phys- gram planning to prevent, alleviate, or ical impairment that adversely affects compensate for movement dysfunction a child’s educational performance. and related functional problems. That term includes congenital impair- (3) Providing individual and group ments such as club foot or absence of services or treatment to prevent, alle- some member; impairments caused by viate, or compensate for movement disease, such as poliomyelitis and bone dysfunction and related functional tuberculosis, and impairments from problems. other causes such as cerebra palsy, am- Primary referral source. Parents and putations, and fractures or burns caus- the DoD Components, including child ing contractures. development centers, pediatric clinics, Other health impairment. Limited and newborn nurseries, that suspect an strength, vitality, or alterness due to infant or toddler has a disability and

195 § 57.3 32 CFR Ch. I (7–1–97 Edition) brings the child to the attention of the ment preparation, achieving independ- EIP. ence, and integration in the workplace Psychological services. A service that and community of the student with a includes the following: disability. (1) Administering psychological and Related services. Transportation and educational tests and other assessment such developmental, corrective, and procedures. other supportive services as required to (2) Interpreting test and assessment assist a child, age 3 to 21, inclusive, results. with a disability to benefit from spe- (3) Obtaining, integrating, and inter- cial education under the child’s IEP. preting information about a child’s be- The term includes speech therapy and havior and conditions to learning. audiology, psychological services, (4) Consulting with other staff mem- physical and occupational therapy, bers, including service providers, to recreation, early identification and as- plan programs to meet the special sessment of disabilities in children, needs of children, as indicated by psy- counseling services, and medical serv- chological tests, interviews, and behav- ices for diagnostic or evaluative pur- ioral evaluations. poses. That term also includes rehabili- (5) Planning and managing a program tation counseling services, school of psychological services, including health services, social work services in psychological counseling for children schools, and parent counseling. The and parents, family counseling, con- sources for those services are school, sultation on child development, parent community, and medical treatment fa- training, and education programs. cilities (MTFs). Public awareness program. Activities School health services. Services pro- or print materials focusing on early vided by a qualified school nurse or identification of infants and toddlers other qualified person. with disabilities. Materials may in- Separate facility. A school or a portion clude information prepared and dis- of a school, regardless of whether it is seminated by a military medical de- operated by the DoDDS, attended ex- partment to all primary referral clusively by children with disabilities. sources and information for parents on Serious emotional disturbance. A condi- the availability of early intervention tion confirmed by clinical evaluation services. Procedures to determine the and diagnosis and that, over a long pe- availability of information on early riod of time and to a marked degree, intervention services to parents are adversely affect educational perform- also included in that program. ance, and exhibits one or more of the Qualified. A person who meets the following characteristics: DoD-approved or recognized certifi- (1) Inability to learn that cannot be cation, licensing, or registration re- explained by intellectual, sensory, or quirements or other comparable re- health factors. quirements in the area in which the (2) Inability to build or maintain sat- person provides special education or re- isfactory interpersonal relationships lated services or early intervention with peers and teachers. services to an infant, toddler, or child (3) Inappropriate types of behavior with a disability. under normal circumstances. Recreation. A related service that in- (4) A tendency to develop physical cludes the following. symptoms or fears associated with per- (1) Assessment of leisure activities. sonal or school problems. (2) Therapeutic recreational activi- (5) A general pervasive mood of un- ties. happiness or depression. Includes chil- (3) Recreational programs in schools dren who are schizophrenic, but does and community agencies. not include children who are socially (4) Leisure education. maladjusted unless it is determined Rehabilitation counseling. Services they are seriously emotionally dis- provided by a rehabilitation counselor turbed. or other qualified personnel in individ- Service coordination. Activities of a ual or group sessions that focus specifi- service coordinator to assist and enable cally on career development, employ- an infant or toddler and the family to

196 Office of the Secretary of Defense § 57.3 receive the rights, procedural safe- to meet the unique needs of a child guards, and services that are author- with a disability. ized to be provided under the DoD EIP. (3) That term also includes voca- Those activities include the following: tional education if it consists of spe- (1) Coordinating the performance of cially designed instruction, at no cost evaluation and assessments. to the parents, to meet the unique (2) Assisting families to identify needs of a child with a disability. their resources, concerns, and prior- (4) At no cost. For a child eligible to ities. attend the DoDDS without paying tui- (3) Facilitating and participating in tion, specially designed instruction and the development, review, and evalua- related services are provided without tion of IFSPs. charge. Incidental fees normally (4) Assisting in identifying available charged to nondisabled students or service providers. their parents as a part of the regular (5) Coordinating and monitoring the educational program may be imposed. delivery of available services. (5) Physical education. The develop- (6) Informing the family of support or ment of the following: advocacy services. (i) Physical and motor fitness. (7) Coordinating with medical and (ii) Fundamental motor skills and health providers. patterns. (iii) Skills in aquatics, dance, and in- (8) Facilitating the development of a dividual and group games and sports, transition plan to preschool services. including intramural and lifetime Service provider. Any individual who sports. provides services listed in an IEP or an (iv) A program that includes special IFSP. physical education, adapted physical Social work services in schools. A serv- education, movement education, and ice that includes the following: motor development. (1) Preparing a social or developmen- (6) Vocational education. Organized tal history on a child with a disability. educational programs for the prepara- (2) Counseling a child and the family tion of individuals for paid or unpaid on a group or individual basis. employment or for additional prepara- (3) Working with those problems in a tion for a career requiring other than a child’s home, school, or community baccalaureate or advanced degree. that adversely affect adjustment in Special instruction. That term in- school. cludes the following: (4) Using school and community re- (1) The design of learning environ- sources to enable a child to receive ments and activities to promote acqui- maximum benefit from the educational sition of skills in a variety of devel- program. opmental areas, including cognitive Special education. Instruction and re- processes and social interaction. lated services for which a child, age 3 (2) Curriculum planning, including to 21, inclusive, becomes entitled when the planned interaction of personnel, a CSC determines a child’s educational materials, time, and space, that leads performance is adversely affected by to achieving the outcomes in an IEP or one or more disabling conditions. an IFSP. (1) Special education is specially de- (3) Providing families with informa- signed instruction, including physical tion, skills, and support to enhance education, which is provided at no cost skill development. to the parent or guardians to meet the (4) Working with a child to enhance unique needs of a child with a disabil- development and cognitive processes. ity, including instruction conducted in Specific learning impairment. A dis- the classroom, in the home, in hos- order in one or more of the basic psy- pitals and institutions, and in other chological processes involved in under- settings. standing or in using spoken or written (2) That term includes speech ther- language that may manifest itself as apy or any other related service if the an imperfect ability to listen, think, service consists of specially designed speak, read, write, spell, remember, or instruction, at no cost to the parents, do mathematical calculations. That

197 § 57.4 32 CFR Ch. I (7–1–97 Edition) term includes such conditions as per- nity experiences, the development of ceptual disabilities, brain injury, mini- employment and other postschool mal brain dysfunction, dyslexia, and adult living objectives, and acquisition developmental aphasia. The term, com- of daily living skills and functional vo- monly called, ‘‘specific learning dis- cational evaluation. ability,’’ does not include learning Transportation. A service that in- problems that are primarily the result cludes the following: of visual, hearing, or motor disabil- (1) Services rendered under the IEP ities; mental retardation; emotional of a child with a disability: disturbance; or environmental, cul- (i) Travel to and from school and be- tural, or economic differences. tween schools, including travel nec- Speech and language impairments. A essary to permit participation in edu- communication disorder, such as stut- cational and recreational activities tering, impaired articulation, voice im- and related services. pairment, or a disorder in the receptive (ii) Travel in and around school or expressive areas of language that ad- buildings. versely affects a child’s educational (iii) Specialized equipment, including performance. special or adapted buses, lifts, and Speech therapy. That related service ramps, if required to provide transpor- includes the following: tation for a child with a disability. (1) Identification of children with (2) Transportation and related costs communicative or oropharyngeal dis- for early intervention services include orders and delays in development of the cost of travel (e.g., mileage or trav- communication skills. el by taxi, common carrier, or other (2) Diagnosis and appraisal of specific means) and other costs (e.g., tolls and speech or language impairments. parking expenses) that are necessary to (3) Referral for medical or other pro- enable an eligible child and the family fessional attention to correct or habili- to receive early intervention services. tate speech or language impairments. Traumatic brain injury. An acquired (4) Provision of speech and language injury to the brain caused by an exter- services for the correction, habili- nal physical force resulting in total or tation, and prevention of communica- partial functional disability or tive impairments. psychosocial impairment that ad- (5) Counseling and guidance of chil- versely affects educational perform- dren, parents, and teachers for speech ance. That term includes open or and language impairments. closed head injuries resulting in mild, Transition services. That term means moderate, or severe impairments in the following: one or more areas including cognition, (1) A coordinated set of activities for language, memory, attention, reason- a student that may be required to pro- ing, abstract thinking, judgment, prob- mote movement from early interven- lem solving, sensory, perceptual and tion, preschool, and other educational motor abilities, psychosocial behavior, programs into different educational physical function, information process- settings or programs. ing, and speech. That term does not in- (2) For students 14 years of age and clude brain injuries that are congenital older, transition services are designed or degenerative, or brain injuries that in an outcome-oriented process which are induced by birth trauma. promotes movement from school to Vision services. Services necessary to postschool activities; including, post- habilitate or rehabilitate the effects of secondary education, vocational train- sensory impairment resulting from a ing, integrated employment; and in- loss of vision. cluding supported employment, con- Visual impairment. An impairment of tinuing and adult education, adult vision that, even with correction, ad- services, independent living, or com- versely affects a child’s educational munity participation. The coordinated performance. That term includes both set of activities shall be based on the partially seeing and blind children. individual student’s needs, considering the student’s preferences and interests, § 57.4 Policy. and shall include instruction, commu- It is DoD policy that:

198 Office of the Secretary of Defense § 57. 5

(a) Eligible infants and toddlers with intervention or special education serv- disabilities and their families shall be ices. entitled to receive early intervention (iv) Ensure that DoD personnel are services consistent with Appendix A to trained to provide the mediation serv- this part. ices specified in Appendix F to this (b) Eligible children with disabilities, part. ages 3 to 21, inclusive, shall be provided (v) Ensure that transition services a FAPE in the least restrictive envi- are available to promote movement ronment, consistent with Appendix B from early intervention, preschool, and to this part. other educational programs into dif- (c) Parents of eligible infants, tod- ferent educational settings and post- dlers, and children with disabilities secondary environments. from birth to age 21, inclusive, shall be (vi) Ensure that DoD personnel who full participants in early intervention provide services (e.g., child care, medi- and special education services. cal care, and recreation) to infants and toddlers and their families are partici- § 57. 5 Responsibilities. pants in a comprehensive inter-Compo- (a) The Under Secretary of Defense nent system for early intervention for Personnel and Readiness shall: services. (1) Establish a NAP consistent with (vii) Assign functions and geographic Appendix C to this part. regions of responsibility to the Mili- (2) Establish and chair, or designate a tary Departments for providing MRS ‘‘Chair,’’ of the DoD-CC on Early Inter- and early intervention services. vention, Special Education, and MRS (viii) Ensure that the Military De- consistent with Appendix D to this partments deliver the following: part. (A) A comprehensive, coordinated and multidisciplinary program of early intervention (3) Establish and chair, or designate a services for eligible infants and toddlers with ‘‘Chair,’’ of the DoD Inter-Component disabilities. Coordinating Council (ICC) on Early (B) MRS for eligible children with disabil- Intervention consistent with Appendix ities, ages 3 to 21, inclusive. E to this part. (ix) Ensure that qualified personnel par- (4) Ensure compliance with this part ticipate in providing transition services for in the provision of early intervention eligible infants, toddlers, and children with services, special education, and related disabilities from birth to age 21, inclusive. (x) Ensure the development and implemen- services through the DoD-CC, in ac- tation of a comprehensive system of person- 8 cordance with DoD Instruction 1342.14 nel development for the DoDDS and the Mili- and other appropriate guidances. tary Departments. That system shall include (5) In consultation with the General professionals, paraprofessionals, and primary Counsel of the Department of Defense referral source personnel in the areas of (GC, DoD) and the Secretaries of the early intervention, special education, and Military Departments, do the follow- MRS. That system may include the following: ing: (A) Implementing innovative strategies (i) Ensure that eligible infants and and activities for the recruitment and reten- toddlers with disabilities and their tion of providers of early intervention serv- families are provided early interven- ices, special education, and MRS. tion services under 20 U.S.C. 921 et seq. (B) Ensuring that personnel requirements and 1400 et seq. are established consistent with recognized (ii) Ensure the coordination of early certification, licensing, registration, or intervention, special education, and re- other comparable requirements for personnel providing early intervention services, special lated services. education, or MRS. (iii) Ensure the development of a (C) Ensuring that training is provided in DoD-wide comprehensive child-find and across disciplines. system to identify eligible infants, tod- (D) Training providers of early interven- dlers, and children ages birth to age 21, tion services, special education, and MRS to inclusive, under 20 U.S.C 921 et seq. and work overseas. 1400 et seq. who may require early (xi) Develop procedures to compile data on the numbers of eligible infants and toddlers with disabilities and their families in need of 8 See footnote 1 to § 57.1(a). early intervention services, in accordance

199 § 57.6 32 CFR Ch. I (7–1–97 Edition) with DoD Directives 5400.7 and 5400.11.9 Those § 57.6 Procedures. data elements shall include the following: (A) The number of infants and toddlers and (a) The procedures for early interven- their families served. tion services for infants and toddlers (B) The types of services provided. with disabilities and their families are (C) Other information required to evaluate prescribed in Appendix A to this part. the implementation of early intervention (b) The procedures for educational programs (EIPs). programs and services for children with (xii) Resolve disputes in the DoD Compo- nents arising under Appendix A to this part. disabilities, ages 3 to 21, inclusive, are (b) The Secretaries of the Military Depart- prescribed in Appendix B to this part. ments shall: (c) The procedures for conducting (1) Provide MRS for eligible children with hearings are prescribed in Appendix F disabilities, ages 3 to 21, inclusive. to this part. (2) Plan, develop, and implement a comprehensive, coordinated, intra-Component, APPENDIX A TO PART 57—PROCEDURES and community-based system of early inter- FOR THE PROVISION OF EARLY INTER- vention services for eligible infants and tod- VENTION SERVICES FOR INFANTS AND dlers with disabilities and their families. TODDLERS WITH DISABILITIES AND (3) Design and implement activities to ensure compliance through technical assist- THEIR FAMILIES ance and program evaluation for early inter- A. Requirements for an Early Intervention vention and MRS. Program (EIP) (c) The Director, Department of Defense Education Activity, shall ensure that the Di- 1. All eligible infants and toddlers with dis- rector, DoDDS, does the following: abilities from birth through age 2 and their (1) Ensures that eligible children with dis- families shall receive early intervention abilities, ages 3 to 21, inclusive, are provided services, as follows: a FAPE. a. In school years 1991 through 1994, the De- (2) Ensures that the educational needs of partment of Defense planned and continues children with and without disabilities are to develop a comprehensive, coordinated, met comparably, consistent with Appendix B multidisciplinary program of early interven- to this part. tion services for infants and toddlers with (3) Ensures that educational facilities and disabilities among DoD entities involved in services operated by the DoDDS for children providing such services. with and without disabilities are com- b. In school year 1994 through 1995, the De- parable. partment of Defense implemented and shall (4) Maintains records on special education continue to implement the following pro- and related services provided to eligible chil- gram components described in paragraph dren with disabilities, ages 3 to 21, inclusive, A.1.a. of this Appendix: consistent with DoD Directive 5400.11. (1) Multidisciplinary assessments. (5) Provides any or all special education (2) IFSPs. and related services required by a child with (3) Service coordination. a disability, ages 3 to 21, inclusive, other c. In school year 1995 through 1996, the De- than those furnished by the Secretaries of partment of Defense shall implement the the Military Departments. The Director, program described in paragraph A.1.a. of this DoDDS, may act through inter-Agency, Appendix. 1 intra-Agency, and inter-Service arrange- 2. Early intervention services shall be pro- ments, or through contracts with private vided in the natural environment. parties when funds are authorized and appro- 3. Parents of infants and toddlers with dis- priated. abilities are to be full and meaningful par- (6) Participates in the development and ticipants in the EIP. implementation of a comprehensive system of personnel development. B. Military Department Responsibilities (7) Undertakes activities to ensure compli- Each Military Department shall develop ance by the DoDDS with this part through and implement in its assigned geographic monitoring, technical assistance, and pro- area a system to provide for the following: gram evaluation of special education and 1. A comprehensive child find procedure co- those related services provided by the ordinated with the DoDDS child find system DoDDS. and primary referral sources such as the (d) The Director, Defense Office of Hearings child development center and the pediatric and Appeals, under the General Counsel of the clinic. Department of Defense, shall ensure impartial 2. Administration and supervision of EIPs due process hearings are provided consistent and services. with Appendix F to this part. 1 The EIP shall be continuously imple- 9 See footnote 1 to § 57.1(a). mented.

200 Office of the Secretary of Defense Pt. 57, App. A

3. Identification of available resources and 2. The child has a diagnosed physical or coordination with those resource providers, mental condition which has a high prob- including the DoD Components, who rou- ability of resulting in developmental delay; tinely provide services to infants and tod- e.g., chromosomal disorders or genetic syn- dlers without disabilities and their families. dromes. 4. Procedures to provide timely services for infants and toddlers with disabilities and D. IFSP their families. 1. Each military medical department shall 5. Procedures to resolve inter-Component develop and implement procedures to ensure disputes about the delivery of early interven- that an IFSP is developed by a multidisci- tion services. plinary team including the parents of each 6. Procedures to collect and report data re- infant or toddler with a disability who meets flecting the number of infants and toddlers the eligibility criteria in section C.1. of this and their families served, the types of serv- appendix. ices provided, and other information re- 2. Meetings to develop and review the IFSP quired by the USD(P&R) implementation of must include the following participants: early intervention services. 7. Multidisciplinary, comprehensive, and a. The parent or parents of the child. functional assessment of the unique b. Other family members, as requested by strengths and needs of infants or toddlers the parent, if possible. and the identification of services to meet c. An advocate outside of the family, if the those needs. parent requests that person’s participation. 8. Procedures for a family-directed assess- d. The EIP services coordinator who has ment to determine resources, priorities, and worked with the family since the initial re- concerns of a family and to identify services ferral of the child or who has been des- necessary to enhance a family’s capacity to ignated as ‘‘responsible for the implementa- meet the child’s needs. tion of the IFSP.’’ 9. An IFSP that details the early interven- e. The person(s) directly involved in con- tion services and the coordination of those ducting the evaluations and assessments. services. f. As appropriate, persons who shall pro- 10. A public awareness program focusing on vide services to the child or family. early identification of infants and toddlers 3. If a person listed in section D.2. of this with disabilities. appendix is unable to attend a meeting, ar- 11. A central directory that includes a de- rangements must be made for the person’s scription of the early intervention services involvement through other means, including and other relevant resources available in the following: each military community overseas. a. Participating in a telephone conference 12. Information to parents about their EIP call. procedural safeguards. b. Having a knowledgeable representative 13. Establishment of ICCs at appropriate attend the meeting. levels. Memberships shall include parents c. Making pertinent records available at and the DoD Components who are involved the meeting. in the delivery of early intervention serv- 4. The IFSP shall be written in a reason- ices. able time after assessment and shall contain 14. Policies and procedures for the estab- the following: lishment and maintenance of standards to a. A statement of the child’s current devel- ensure that personnel necessary to carry out opmental levels including physical, cog- the EIP are prepared and trained. nitive, communication, social or emotional, and adaptive behaviors based on acceptable C. Eligibility objective criteria. Infants and toddlers with disabilities from b. A statement of the family’s resources, birth through age 2 are eligible for early priorities, and concerns on enhancing the intervention services because they meet one child’s development. of the following criteria: c. A statement of the major outcomes ex- 1. The child is experiencing a developmen- pected to be achieved for the child and the tal delay as measured by diagnostic instru- family. Additionally, the statement shall ments and procedures of 2 standard devi- contain the criteria, procedures, and timeli- ations below the mean in at least one area, ness used to determine the degree to which or by a 25 percent delay in at least one area progress toward achieving the outcomes is on assessment instruments that yield scores being made and whether modification or rein months, or a developmental delay of 1.5 vision of the outcomes and services are nec- standard deviations below the mean in two essary. or more areas, or by a 20 percent delay on as- d. A statement of the specific early inter- sessment instruments that yield scores in vention services necessary to meet the months in two or more of the following areas unique needs of the child and the family in- of development: Cognitive, physical, commu- cluding the frequency, intensity, and method nication, social or emotional, or adaptive. of delivering services.

201 Pt. 57, App. B 32 CFR Ch. I (7–1–97 Edition)

e. A statement of the natural environ- f. The right to prior written notice when ments in which early intervention services the EIP multidisciplinary team proposes, or shall be provided. refuses, to initiate or change the identifica- f. The projected dates for initiation of serv- tion, evaluation, placement, or provision of ices and the anticipated duration of those early intervention services to the infant or services. toddler with a disability. g. The name of the EIP service coordina- g. The right to prior written notice in their tor. native language, unless it clearly is not pos- h. The steps to be taken supporting the sible to do so, which informs them of all pro- transition of the toddler with a disability to cedural safeguards. preschool or other services. h. During the pendency of any proceeding 5. The IFSP shall be evaluated at least or action involving a complaint, unless the once a year and the family shall be provided EIP and the parents otherwise agree, the an opportunity to review the plan at 6-month child shall continue to receive the appro- intervals (or more frequently, based on the priate early intervention services currently child and family needs). being provided, or, if applying for initial 6. The contents of the IFSP shall be ex- services, shall receive the services not in dis- plained to the parents and an informed, writ- pute. 2. Parents shall be advised of their rights ten consent from the parents shall be ob- to due process, as defined in appendix F to tained before providing early intervention this part. services described in that plan. 7. With the parent’s consent, early inter- APPENDIX B TO PART 57—PROCEDURES vention services may begin before the completion of the evaluation and assessment FOR EDUCATIONAL PROGRAMS AND when it has been determined by a multidisci- SERVICES FOR CHILDREN WITH DIS- plinary team that a service is needed imme- ABILITIES, AGES 3 TO 21, INCLUSIVE diately by the child and/or the child’s family. A. Identification and Screening Although all assessments have not been completed, an IFSP must be developed before the It is the responsibility of school officials of start of services. The remaining assessments the DoDDS to locate, identify, and with the must then be completed in a timely manner. consent of a child’s parent, evaluate all chil- 8. If a parent does not provide consent for dren who are eligible to enroll in the DoDDS participation in all early intervention serv- under DoD Directive 1342.13 1 who may re- ices, the services shall still be provided for quire special education and related services. those interventions to which a parent does 1. Procedures for Identification and Screen- give consent. ing. The DoDDS officials shall conduct the following activities to determine if a child E. Procedural Safeguards in the EIP needs special education and related services: a. Screen educational records. 1. Parents of infants and toddlers with dis- b. Screen students using system-wide or abilities are afforded the following proce- other basic skill tests in the areas of read- dural safeguards to ensure that their chil- ing, math, and language arts. dren receive appropriate early intervention c. Screen school health data such as re- services: ports of hearing, vision, speech, or language a. The timely administrative resolution of tests and reports from healthcare personnel parental complaints, including hearing pro- about the health status of a child. cedures in appendix F to this part. d. Analyze school records to obtain perti- b. The right to confidentiality of person- nent information about the basis for suspen- ally identifiable information under DoD Di- sions, exclusions, withdrawals, and discipli- 2 rective 5400.11. nary actions. c. The right to written notice and consent e. In cooperation with the Military Depart- to the release of relevant information out- ments, conduct on-going child-finding activi- side the Department of Defense. ties and publish, periodically, any informa- d. The right to determine whether they, tion, guidelines, and direction on child-find their child, or other family members shall activities for eligible children with disabil- accept or decline any early intervention ities, ages 3 to 21, inclusive. services without jeopardizing other early f. Coordinate the transition of children intervention services. from early intervention to preschool with e. The opportunity to examine records on the Military Services. assessment, screening, eligibility determina- 2. Referral of a Child for Special Education or tions, and the development and implementa- Related Services. The DoDDS officials, MRS tion of the IFSP. providers, or others who suspect that a child

2 Copies may be obtained, at cost, from the 1 Copies may be obtained, at cost, from the National Technical Information Service, 5285 National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161. Port Royal Road, Springfield, VA 22161.

202 Office of the Secretary of Defense Pt. 57, App. B has a possible disabling condition shall refer appropriate educational program for a child that child to the CSC. with a disability. f. Selected to assess specific areas of edu- B. Assessment and Evaluation cational needs and strengths and not merely Any eligible child who is referred to a CSC to provide a single general intelligence shall receive a full and comprehensive diag- quotient. nostic evaluation of educational needs. An g. Administered to a child with impaired evaluation shall be conducted before an IEP sensor, motor, or communication skills so is developed or placement is made in a spe- that the results reflect a child’s actual abil- cial education program. ity or level of achievement, and simply not 1. Procedures for Assessment and Evaluation. the impaired skill itself. 3. Determination of Eligibility for Special A CSC shall ensure that the following ele- Education and Related Services. The CSC shall ments are included in a comprehensive as- be convened to determine the eligibility of a sessment and evaluation of a child: child for special education and related serv- a. Assessment of visual and auditory acu- ices. The CSC shall do the following: ity. a. Ensure that the full comprehensive eval- b. A plan to assess the type and extent of uation of a child is accomplished by a multi- the disability. A child shall be assessed in all disciplinary team. The team shall be com- areas related to the suspected disability. prised of teachers or other specialists with When necessary, the assessment plan shall knowledge in the area of the suspected dis- include the following: ability. (1) Assessment of the level of functioning b. Meet as soon as possible after a child has academically, intellectually, emotionally, been assessed to determine the eligibility of socially, and in the family. the child for services. (2) Observation in an educational environ- c. Afford the child’s parents the oppor- ment. tunity to participate in the CSC eligibility (3) Assessment of physical status including meeting. perceptual and motor abilities. d. Issue a written eligibility report that (4) Assessment of the need for transition contains the following: services for students 14 years and older, the (1) A description of the nature of the acquisition of daily living skills, and func- child’s disabling condition. tional vocational assessment. (2) A synthesis of the formal and informal c. The involvement of parents, under this findings of the multidisciplinary assessment part. team of the child’s academic progress. d. The use of all locally available commu- (3) A summary of information from the nity, medical, and school resources to ac- parents, the child, or other persons having complish the assessment. At least one spe- significant previous contact with the child. cialist with knowledge in the area of the sus- (4) A determination of eligibility state- pected disability shall be a member of the ment. multidisciplinary assessment team. (5) A list of the educational areas affected e. The requirement that each assessor pre- by a child’s disability and a description of a pare an individual assessment report that de- child’s educational needs. scribes the instruments and techniques used, 4. Reevaluation for Eligibility for Special Edu- the results of the testing, and the relation- cation and Related Services. School officials ship of those findings to educational func- shall provide a comprehensive reevaluation tioning. of a child with a disability every 3 years, or f. The inclusion of a description of the more frequently, if conditions warrant. The problem area constituting the basis for an scope and type of the comprehensive reevalu- MRS referral. ation shall be determined individually based 2. Standards for Assessment Selection and on a child’s performance, behavior, and needs Procedures. All DoD elements, including the during the reevaluation. CSC and MRS providers, shall ensure that C. Individualized Education Program (IEP) assessment materials and evaluation procedures comply, as follows: The DoDDS officials shall ensure that the a. Selected and administered so as not to CSC develops and implements an IEP for be racially or culturally discriminatory. each child with a disability who is enrolled b. Administered in the native language or in the DoDDS or is placed in another institu- mode of communication of the child unless it tion by the DoDDS. clearly is not possible to do so. 1. The CSC Meeting for the Development and c. Validated for the specific purpose for Implementation of an IEP. The CSC shall es- which they are used or intended to be used. tablish and convene a meeting to develop, re- d. Administered by trained personnel in view, or revise the IEP of a child with a dis- compliance with the instructions of the test- ability. That meeting shall be scheduled as ing instrument. soon as possible following a determination e. Administered such that no single proce- by the school or area CSC that the child is dure is the sole criterion for determining an eligible for special education and related

203 Pt. 57, App. B 32 CFR Ch. I (7–1–97 Edition) services. The meeting participants shall, a. Obtain parental agreement and signa- minimally, include the following: ture before implementation of the IEP. a. A principal or school representative b. Provide a copy of the child’s IEP to the other than the child’s teacher who is quali- parents. fied to provide or supervise the provision of c. Ensure that the IEP is in effect before a special education. child receives special education and related b. The child’s teacher. services. c. A special education teacher. d. Review and revise the IEP for each child d. One or both of the child’s parents. at least annually in a CSC meeting. e. The child, if appropriate. e. Accept a child’s current IEP when he or f. For a child with a disability who has she transfers to the DoDDS if the CSC of the been evaluated for the first time, a rep- gaining school or the area CSC does the fol- resentative of the evaluation team who is lowing: knowledgeable about the evaluation proce- (1) Notifies and obtains consent of the par- dures used and is familiar with the results of ents to use the current IEP and all elements the evaluation. contained in it. g. Other individuals invited at the discre- (2) Involves the local DoD Component re- tion of the parent or school. sponsible for the delivery of the MRS of the 2. Requirements for the Development of the medical requirements in the IEP. IEP. The CSC shall prepare the IEP with the (3) Initiates a CSC meeting to revise the following: current IEP. a. A statement of the child’s present levels (4) If necessary, initiates an evaluation of of educational performance. the child. b. A statement of annual goals including f. Afford the child’s parents the oppor- short-term instructional objectives. tunity to participate in every CSC meeting c. Objective criteria for determining, at to determine their child’s initial or continu- least annually, whether the educational ob- ing eligibility for special education and re- jectives are being achieved. lated services, or to prepare or change the d. A statement of the physical education child’s IEP or to determine or change the program provided in one of the following set- child’s placement. tings: g. Ensure that at least one parent under- (1) In the regular education program. stands the special education procedures in- (2) In the regular education program with cluding the due process procedures described adaptations, modifications, or the use of in appendix F of this part and the impor- assistive technology. tance of the parent’s participation in those (3) Through specially designed instruction processes. School officials shall use devices based on the goals and objectives included in or hire interpreters or other intermediaries the IEP. e. A statement of the transition services who might be necessary to foster effective beginning at age 14 and annually, thereafter. communications between the school and the When appropriate, include a statement of the parent about the child. inter-Agency responsibilities or linkages (or h. Provide special education and related both) before the student leaves the school services, in accordance with the IEP. The setting. If a specially designed instructional Department of Defense and its constituent program is required, include the goals and elements and personnel are not accountable objectives in the IEP. if a child does not achieve the growth pro- f. A statement of special transportation rejected in the IEP. quirement. i. Ensure that all provisions developed for g. A statement of the amount of time a any child entitled to an education by the week that each special education and related DoDDS are fully implemented in schools or service shall be provided to the child. in non-DoDDS schools or facilities including h. The extent to which the child shall par- those requiring special facilities, other adap- ticipate in regular educational programs, in- tations, or assistive devices. cluding the following: D. Placement Procedures and Least Restrictive (1) The projected date for the initiation Environment and the anticipated length of IEP activities and services. 1. A child shall not be placed by the DoDDS (2) Any statements requiring an adjusted in any special education program unless the school day or an extended school year pro- CSC has developed an IEP. If a child with a gram. disability is applying for initial admission to i. A statement of the vocational education a school, the child shall enter on the same program for secondary students. If a spe- basis as a child without a disability. A child cially designed instructional program is re- with a disability and with the consent of a quired, the necessary goals and objectives in parent and school officials may receive an the IEP shall be included. initial placement in a special education pro- 3. Requirements for the Implementation of the gram under procedures listed in paragraph IEP. The DoDDS CSC shall: C.3.e. of this appendix.

204 Office of the Secretary of Defense Pt. 57, App. B

2. A placement decision requires the fol- Component shall pay the costs in accordance lowing: with DoD 1010.13–R 2. a. A parent consent to the placement be- d. Local school officials shall initiate and fore actual placement of the child, except as conduct a meeting to develop an IEP for the otherwise provided in section F.2. of this ap- child before placement. A representative of pendix. the non-DoDDS school or facility should at- b. Delivery of educational instruction and tend the meeting. If the representative can- related services in the least restrictive envi- not attend, the DoDDS officials shall com- ronment. To the maximum extent, a child municate in other ways to ensure participa- with a disability should be placed with chil- tion including individual or conference tele- dren who are not disabled. Special classes, phone calls. The IEP must meet the following standards: separate schooling, or other removal of a (1) Be signed by an authorized DoDDS offi- child with a disability from the regular edu- cial before it becomes valid. cation environment shall occur only when (2) Include a determination that the the type or severity of the disability is such DoDDS does not currently have or cannot that education in regular classes with the reasonably create an educational program use of supplementary aids and services can- appropriate to meet the needs of the child not be achieved satisfactorily. with a disability. c. The CSC to base placements on the IEP (3) Include a determination that the non- and to review the IEP at least annually. DoDDS school or facility and its educational d. A child shall participate, to the maxi- program and related services conform to the mum extent, in school activities including requirements of this part. meals, assemblies, recess periods, and field 2. Cost of Tuition For Non-DoDDS School or trips with children who are not disabled. Facility. The Department of Defense is not e. Consideration of factors affecting the authorized to fund non-DoDDS placement child’s well-being including the effects of unless it is directed by the DoDDS Area Su- separation from parents. perintendent in coordination with the Direc- f. A child shall attend a DoDDS school that tor, DoDDS; or it is directed by an impartial is located as close as possible to the resi- hearing officer or court of competent juris- dence of the parent who is sponsoring the diction. A valid IEP must document the ne- child’s attendance. Unless otherwise required cessity of the placement in a non-DoDDS by the IEP, the school should be the same school or facility. school that the child would have attended F. Procedural Safeguards for Children and had he or she not been disabled. Parents E. Children With Disabilities Who Are Placed in Parents of children with disabilities are af- a Non-DOD School or Facility forded procedural safeguards to ensure that their children receive a free public education Children with disabilities who are eligible consistent with appendix F to this part. to receive a DoDDS education, but are placed in a non-DoDDS school or facility by the 1. Notice of Procedural Safeguards DoDDS, shall have all the rights of children with disabilities who are enrolled in a a. Parents shall be provided a written no- DoDDS school. A child with a disability may tice in a reasonable time before one of the be placed in a non-DoDDS school or facility following: only if required by the IEP. (1) Receiving a proposal to initiate or change the identification, evaluation, or 1. Requirements for a Non-DoDDS School or educational placement of the child or the Facility Placement provision of free public education to the child. a. Placement in a non-DoDDS school or fa- (2) Receiving refusal from the DoDDS to cility shall be made under the host-nation initiate or change the identification, evalua- requirements. tion, or educational placement of the child b. Placement in a non-DoDDS school or fa- or the provision of a free public education. cility is subject to all treaties, Executive b. The notice shall inform the parent of the agreements, and status of forces agreements following: between the United States and the host na- (1) Parental procedural rights detailed in tions, and all DoD and DoDDS regulations. appendix F to this part. c. If the DoDDS places a child with a dis- (2) A description of the action proposed or ability in a non-DoDDS school or facility as refused by the DoDDS with a brief expla- a means of providing special education and nation for the decision. related services, the program of that institu- c. The notice shall be provided so as to en- tion including nonmedical care and room sure the parent’s understanding. That may and board, as in the child’s IEP, must be provided at no cost to the child or the child’s 2 See footnote 1 to section A. of this appen- parents. The DoDDS or the responsible DoD dix.

205 Pt. 57, App. B 32 CFR Ch. I (7–1–97 Edition) be achieved by using simplified language, de- 5. Due Process Rights livering the notice in the parent’s native lan- a. The parent of a child with a disability or guage, or using an interpreter or other per- the DoDDS has the opportunity to file a son selected by the parents. written petition for an impartial due process hearing at the DoDDS expense under appen- 2. Parental Consent dix F to this part. The dispute may concern a. The consent of a parent of a child with issues effecting a partial child’s identifica- a disability or suspected of having a disabil- tion, evaluation, or placement, or the provi- ity shall be obtained before any of the fol- sion of a free and appropriate public edu- lowing: cation. (1) Initiation of formal evaluation proce- b. While an impartial due process hearing dures. or judicial proceeding is pending, unless the (2) Initial educational placement. DoDDS and a parent of the child agree otherwise, the child shall remain in the present (3) Change in educational placement. educational setting, subject to the discipli- b. If the parent refuses consent to any for- nary procedures prescribed in section H. of mal evaluation or initial placement in a spe- this appendix. cial education program, the DoDDs or the 6. Dispute Resolution—Other Complaints. A parent may do the following: parent, teacher, or other person covered by (1) Request a conference between the this part may file a written complaint about school and parents. any aspect of this part that is not a proper (2) Request mediation. subject for adjudication by a due process (3) Initiate an impartial due process hear- hearing officer, in accordance with DSR ing under appendix F to this part, to show 2500.10.3 cause as to why an evaluation or placement in a special education program should or G. Confidentiality of Records should not occur without such consent. If the The DoDDS officials shall maintain all stu- hearing officer sustains the DoDDS position dent records, in accordance with DoD Direc- in the impartial due process hearing, the tive 5400.11.4 DoDDS may evaluate or provide special education and related services to the child with- H. Disciplinary Procedures out the consent of a parent, subject to the All regular disciplinary rules and proce- further exercise of due process rights. dures applicable to children receiving educational instruction in the DoDDS shall 3. Independent Evaluation apply to children with disabilities who vio- a. A parent is entitled to an independent late school rules and regulations or disrupt evaluation at the expense of the DoDDS if regular classroom activities, subject to the the parent disagrees with the DoDDS evalua- following provisions: tion of the child and successfully challenges 1. Before suspending or expelling a child the evaluation in an impartial due process with a disability, the CSC or, a child with a hearing. An independent evaluation provided disability in a non-DoDDS school, authorized at the DoDDS expense must do the following: DoDDS officials, shall determine the following: (1) Conform to the requirements of this a. Whether the behavioral conduct is the part. result of the child’s disability. (2) Be conducted, when possible, in the area b. If any change in the educational place- where the child resides. ment is needed. (3) Meet DoD standards governing persons 2. If it is determined that the child’s con- qualified to conduct an educational evalua- duct results in whole or part from the dis- tion including an evaluation for MRS. ability, the child may not be subject to any b. If the final decision rendered in an im- regular disciplinary rules and procedures and partial due process hearing sustains the the following procedures must be followed: DoDDS evaluation, the parent has the right a. The child’s parents shall be notified of to an independent evaluation, but not at the the right to have an IEP meeting before any DoDDS expense. change in the child’s educational placement. c. The DoDDS, the CSC, and a hearing offi- b. The CSC or authorized DoDDS officials cer appointed under this part shall consider shall ensure that a meeting is held to deter- any evaluation report presented by a parent. mine the appropriate educational placement 4. Access to Records. The parents of a child for the child in consideration of the child’s with a disability shall be afforded an oppor- conduct. tunity to inspect and review educational records about the identification, evaluation, 3 Copies of the appropriate forms are avail- and educational placement of the child, and able at every school office. the provision of a free public education for 4 See footnote 1 to section A. of this appen- the child. dix.

206 Office of the Secretary of Defense Pt. 57, App. D

c. The child may not be suspended for more b. Receive and consider comments from than 10 days during a school year. parents, students, professional groups, and 3. A child with a disability may be sus- individuals with disabilities. pended on an emergency basis when it rea- c. When necessary establish committees sonably appears that the child’s behavior for short-term purposes comprised of rep- may endanger the health, welfare, or safety resentatives from parent, student, profes- of self or any other child, teacher, or school sional groups, and individuals with disabil- personnel. The following conditions apply: ities. a. The child’s parents shall be notified im- d. Review the findings of fact and decisions mediately of that suspension and of the of each impartial due process hearing con- time, purpose, and location of the CSC meet- ducted under appendix F of this part. ing and of their right to attend the meeting. e. Assist in developing and reporting such b. That suspension remains in effect only information and evaluations as may assist for the duration of the emergency. the Department of Defense. 4. If it is determined that the child requires a change in educational placement, f. Make recommendations based on pro- the CSC or, in the case of a child with a dis- gram and operational information for ability in a non-DoDDS school, authorized changes in policy and procedures and in the DoDDS officials shall ensure that a meeting budget, organization, and general manage- is held to determine the appropriate edu- ment of the special education program. cational placement for the child in consider- g. Comment publicly on rules or standards ation of the child’s conduct. about the education of children with disabilities, ages 3 to 21, inclusive. APPENDIX C TO PART 57—THE NATIONAL h. Perform such other tasks as may be re- ADVISORY PANEL (NAP) ON THE EDU- quested by the USD(P&R) or the Director, CATION OF DEPENDENTS WITH DIS- DoDDS. ABILITIES 2. The NAP members shall serve under appointments that shall be for a term not to A. Membership exceed 3 years.

The NAP shall meet as needed in publicly C. Reporting Requirements announced, accessible meetings open to the general public and shall comply with DoD Submit an annual report of the NAP’s ac- Directive 5105.41. The NAP members, ap- tivities and suggestions to the USD(P&R) pointed by the Secretary of Defense, or des- and the Director, DoDDS, by July 31 of each ignee, shall include at least one representa- year. That report is exempt from formal re- tive from each of the following groups. view and licensing under section E. of DoD 1. Persons with disabilities Instruction 7750.7.2 2. The DoDDS special education teachers 3. The DoDDS regular education teachers. APPENDIX D TO PART 57—DOD COORDI- 4. Parents of children, ages 3 to 21, inclu- NATING COMMITTEE ON EARLY INTER- sive, who are receiving special education VENTION, SPECIAL EDUCATION, AND from the DoDDS. MEDICALLY RELATED SERVICES 5. The staff personnel of the DoDDS Head- quarters. A. Committee Membership 6. Special education program managers from the DoDDS field activities. The committee shall meet at least twice 7. Representatives of the Military Depart- yearly to facilitate collaboration in early ments and overseas commands, including intervention, special education, and Medi- providers of related services. cally Related Services (MRS) in the Depart- 8. Providers of the DoD early intervention ment of Defense. The committee shall con- services. sist of the following members: 9. Other appropriate persons. 1. A representative of the USD(P&R) or designee, who shall serve as the Chair. B. Activities 2. Representatives of the Secretaries of the 1. The NAP shall perform the following ac- Military Departments. tivities: 3. Representatives of the Assistant Sec- a. Review information about improvements retary of Defense (Health Affairs) in service provided to children with disabil- (ASD(HA)). ities, ages 3 to 21, inclusive in the Depart- 4. Representatives from the DoD school ment of Defense. systems (domestic and overseas). 5. Representatives from the GC, DoD. 1 Copies may be obtained, at cost, from the National Technical Information Service, 5285 2 See footnote 1 to section A. of this appen- Port Royal Road, Springfield, VA 22161. dix.

207 Pt. 57, App. E 32 CFR Ch. I (7–1–97 Edition)

B. Responsibilities B. Responsibilities 1. Advise and assist the USD(P&R) in the 1. Advise and assist the Military medical performance of his or her responsibilities. Departments in the performance of their re- 2. At the direction of the USD(P&R), ad- sponsibilities, particularly the identification vise and assist the Military Departments, of appropriate resources and Agencies for and the DoD school systems (overseas and providing early intervention services and the domestic) in the coordination of services promoting of inter-Component agreements. among providers of early intervention, spe- 2. Advise and assist the DoDDS on the cial education, and MRS. transition of toddlers with disabilities to 3. Ensure compliance in the provision of preschool services. early intervention services for infants and 3. Identify strategies to address areas of conflict, overlap, duplication, or omission of toddlers and special education and related early intervention services. services for children ages 3 to 21, inclusive. 4. Review policy memoranda on effective 4. Oversee the coordination of early inter- inter-Department and inter-Component col- vention, special education, and related serv- laboration. ices. 5. Review reports of technical assistance 5. Review the recommendations of the NAP and monitoring activities and make rec- and the Early Intervention ICC to identify ommendations to improve the policies, pro- common concerns, ensure coordination of ef- cedures, programs, and delivery of early fort, and forward issues requiring resolution intervention services. to the USD(P&R). 6. Make recommendations based on pro- 6. Promote the coordination of services and gram and operational information for information sharing among the providers of changes in the policy, procedures, budget, or- early intervention, special education, and ganization, and general management of the MRS. EIPs. 7. Assist in the coordination of assign- 7. Provide advice and technical assistance ments of sponsors who have children with in the establishment, membership, and oper- disabilities who are or who may be eligible ation of installation or command level ICCs. for special education and MRS in the DoDDS 8. When necessary, establish committees or the EIP through the Military Depart- for short-term purposes comprised of parents ments. of children with disabilities, service providers, and representatives of professional APPENDIX E TO PART 57—DOD INTER- groups. COMPONENT COORDINATING COUNCIL 9. Submit an annual report of its activities and suggestions to the USD(P&R) by July 31 (ICC) ON EARLY INTERVENTION of each year. That report is exempt from for- A. Council Membership mal review and licensing under section E. of DoD Instruction 7750.7.2 The USD(P&R) shall appoint members to the ICC. The Council shall meet at least C. Procedures yearly in publicly announced, open meetings 1. The USD(P&R) shall nominate and se- that are accessible to the general public and lect all members to the ICC to include those shall comply with DoD Directive 5105.4.1 The listed in section A.1. of this appendix. Council shall be comprised of the following: 2. Appointments shall be for a term not to 1. Parents. At least 20 percent of the mem- exceed 3 years except for DoD personnel who bers shall be parents with infants or toddlers are not representing the parent category of with disabilities or children ages 12 or membership. younger with disabilities, with knowledge of, 3. The USD(P&R), or designee, shall call or experience with, programs for infants and and conduct the meeting of the Council. toddlers with disabilities. At least one such member shall be a parent of an infant or tod- APPENDIX F TO PART 57—MEDIATION dler or a child age 6 or younger. AND HEARING PROCEDURES 2. Representatives of the Surgeons General of the Military Departments. A. Purpose 3. Representatives of the family support This appendix establishes requirements for programs of the Military Departments. the resolution of conflicts through mediation 4. Representatives from the ASD(HA). and impartial due process hearings. Parents 5. Representative(s) from the DoDDS. of infants, toddlers, and children who are 6. A representative from the GC, DoD. covered by this Instruction and, as the case may be, the cognizant Military Department 1 Copies may be obtained, at cost, from the National Technical Information Service, 5285 2 See footnote 1 to section A. of this appen- Port Royal Road, Springfield, VA 22161. dix.

208 Office of the Secretary of Defense Pt. 57, App. F or the DoDDS are afforded impartial medi- appear and represent the DoDDS in proceed- ation and/or impartial due process hearings ings conducted under this appendix, when and administrative appeals about the provi- such proceedings involve a child age 3 to 21, sion of early intervention services, or the inclusive. When an infant or toddler is in- identification, evaluation, educational place- volved, the Military Department responsible ment of, and the FAPE provided to, such under this Instruction for delivering early children by the Department of Defense, in intervention services shall either provide its accordance with 20 U.S.C. 921 et seq. and 1400 own counsel or request counsel from DOHA. et seq. D. Hearing Practice and Procedure B. Mediation 1. Hearing 1. Mediation may be initiated by either a parent or the Military Department con- a. Should mediation be refused or other- cerned, or the DoDDS to resolve informally a wise fail to resolve the issues on the provi- disagreement on the early intervention serv- sion of early intervention services to an in- ices for an infant or toddler or the identifica- fant or toddler or the identification or eval- tion, evaluation, educational placement of, uation of such an individual, the parent may or the FAPE provided to, a child age 3 to 21, request and shall receive a hearing before a inclusive. The cognizant Military Depart- hearing officer to resolve the matter. The parents of an infant or toddler and the Mili- ment, rather than the DoDDS, shall partici- tary Department concerned shall be the only pate in mediation involving early interven- parties to a hearing conducted under this ap- tion services. Mediation shall consist of, but pendix. not be limited to, an informal discussion of b. Should mediation be refused or other- the differences between the parties in an ef- wise fail to resolve the issues on the provi- fort to resolve those differences. The parents sion of a FAPE to a child with a disability, and the school or Military Department offi- age 3 to 21, inclusive, or the identification, cials may attend mediation sessions. evaluation, or educational placement of such 2. Mediation must be conducted, at- an individual, the parent or the school prin- tempted, or refused in writing by a parent of cipal, for the DoDDS, may request and shall the infant, toddler, or child whose early receive a hearing before a hearing officer to intervention or special education services resolve the matter. The parents of a child (including related services) are at issue be- age 3 to 21, inclusive, and the DoDDS shall fore a request for, or initiation of, a formal be the only parties to a hearing conducted due process hearing authorized by this ap- under this appendix. pendix. Any request by the DoDDS or the c. The party seeking the hearing shall sub- Military Department for a hearing under mit a written request, in the form of a peti- this appendix shall state how that require- tion, setting forth the facts, issues, and pro- ment has been satisfied. No stigma may be posed relief, to the Director, DOHA. The pe- attached to the refusal of a parent to medi- titioner shall deliver a copy of the petition ate or to an unsuccessful attempt to medi- to the opposing party (i.e., the parent or the ate. school principal, for the DoDDS, or the military MTF commander, for the Military De- C. Hearing Administration partment), either in person or by first-class 1. The Defense Office of Hearings and Ap- mail, postage prepaid. Delivery is complete peals (DOHA) shall have administrative re- on mailing. When the DoDDS or the Military sponsibility for the proceedings authorized Department petitions for a hearing, it shall by sections D. through G. of this appendix. inform the other parties of the deadline for 2. This appendix shall be administered to filing an answer under paragraph D.1.c. of ensure that the findings, judgments, and de- this appendix, and shall provide the other terminations made are prompt, fair, and im- parties with a copy of this part. partial. d. An opposing party shall submit an an- 3. Impartial hearing officers who shall be swer to the petition to the Director, DOHA, DOHA Administrative Judges, shall be ap- with a copy to the petitioner, within 15 cal- pointed by the Director, DOHA, and shall be endar days of receipt of the petition. The an- attorneys in good standing of the bar of any swer shall be as full and complete as pos- State, the District of Columbia, or a terri- sible, addressing the issues, facts, and pro- tory or possession of the United States who posed relief. The submission of the answer is are independent of the DoDDS or the Mili- complete on mailing. tary Department concerned in proceedings e. In 10 calendar days after receiving the conducted under this appendix. A parent petition, the Director, DOHA, shall assign a shall have the right to be represented in such hearing officer, who then shall have jurisdic- proceedings, at no cost to the Government, tion over the resulting proceedings. The Di- by counsel, and by persons with special rector, DOHA, shall forward all pleadings to knowledge or training with respect to the the hearing officer. problems of individuals with disabilities. The f. The questions for adjudication shall be DOHA Department counsel normally shall based on the petition and the answer, if a

209 Pt. 57, App. F 32 CFR Ch. I (7–1–97 Edition) party may amend a pleading if the amend- n. The hearing officer shall decide when ment is filed with the hearing officer and is the record in a case is closed. received by the other parties at least 5 cal- o. The hearing officer shall issue findings endar days before the hearing. of fact and render a decision in a case not g. The Director, DOHA, shall arrange for later than 50 calendar days after being as- the time and place of the hearing, and shall signed to the case, unless a discovery request provide administrative support. Such ar- under section D.2. of this appendix, is pend- rangements shall be reasonably convenient ing. to the parties. h. The purpose of a hearing is to establish 2. Discovery the relevant facts necessary for the hearing officer to reach a fair and impartial deter- a. Full and complete discovery shall be mination of the case. Oral and documentary available to parties to the proceeding, with evidence that is relevant and material may the ‘‘Federal Rules of Civil Procedure,’’ be received. The technical rules of evidence Rules 26–37, codified at 28 U.S.C. serving as a shall be relaxed to permit the development guide. of a full evidentiary record, with the ‘‘Fed- b. If voluntary discovery cannot be accom- eral Rules of Evidence’’ (Rules 1–1102) of 28 plished, a party seeking discovery may file a U.S.C., serving as a guide. motion with the hearing officer to accom- i. The hearing officer shall be the presiding officer, with judicial powers to manage the plish discovery, provided such motion is proceeding and conduct the hearing. Those founded on the relevance and materiality of powers shall include the authority to order the proposed discovery to the issues. An an independent evaluation of the child at the order granting discovery shall be enforceable expense of the DoDDS or the Military De- as is an order compelling testimony or the partment concerned and to call and question production of evidence. witnesses. c. A copy of the written or electronic tran- j. Those normally authorized to attend a scription of a deposition taken by the hearing shall be the parents of the individual DoDDS or the Military Department con- with disabilities, the counsel and personal cerned shall be made available free of charge representative of the parents, the counsel to a parent. and professional employees of the DoDDS or the Military Department concerned, the 3. Witnesses; Production of Evidence hearing officer, and a person qualified to transcribe or record the proceedings. The a. All witnesses testifying at the hearing hearing officer may permit other persons to shall be advised that it is a criminal offense attend the hearing, consistent with the pri- knowingly and willfully to make a false vacy interests of the parents and the individ- statement or representation to a Depart- ual with disabilities, if the parents have the ment or Agency of the U.S. Government as right to an open hearing on waiving in writ- to any matter in the jurisdiction of that De- ing their privacy rights and those of the in- partment or Agency. All witnesses shall be dividual with disabilities. subject to cross-examination by the parties. k. A verbatim transcription of the hearing b. A party calling a witness shall bear the shall be made in written or electronic form witness’ travel and incidental expenses asso- and shall become a permanent part of the ciated with testifying at the hearing. The record. A copy of the written transcript or DoDDS or the Military Department con- electronic record of the hearing shall be cerned shall pay such expenses when a wit- made available to a parent on request and without cost. The hearing officer may allow ness is called by the hearing officer. corrections to the written transcript or elec- c. The hearing officer may issue an order tronic recording for conforming it to actual compelling the attendance of witnesses or testimony after adequate notice of such the production of evidence on the hearing of- changes is given to all parties. ficer’s own motion or, if good cause be l. The hearing officer’s decision of the case shown, on motion of a party. shall be based on the record, which shall in- d. When the hearing officer determines clude the petition, the answer, the written that a person has failed to obey an order to transcript or the electronic recording of the testify or to produce evidence, and such fail- hearing, exhibits admitted into evidence, ure is in knowing and willful disregard of the pleadings or correspondence properly filed order, the hearing officer shall so certify. and served on all parties, and such other e. The party or the hearing officer seeking matters as the hearing officer may include in to compel testimony or the production of the record, if such matter is made available evidence may, on the certification provided to all parties before the record is closed for in paragraph D.3.d. of this appendix, file under paragraph D.1.m. of this appendix. an appropriate action in a court of com- m. The hearing officer shall make a full and complete record of a case presented for petent jurisdiction to compel compliance adjudication. with the hearing officer’s order.

210 Office of the Secretary of Defense Pt. 57, App. F

4. Hearing Officer’s Findings of Fact and other parties. The other parties shall submit Decision a reply or replies to the Director, DOHA, within 15 calendar days of receiving the a. The hearing officer shall make written statement, and shall deliver a copy of each findings of fact and shall issue a decision setting forth the questions presented, the reso- reply to the appellant. Submission is com- lution of those questions, and the rationale plete on mailing. for the resolution. The hearing officer shall 3. The Director, DOHA, shall refer the mat- file the findings of fact and decision with the ter on appeal to the DOHA Appeal Board. It Director, DOHA, with a copy to the parties. shall determine the matter, including the b. The Director, DOHA, shall forward to making of interlocutory rulings, within 60 the Director, DoDDS, or to the Military De- calendar days of receiving timely submitted partment concerned, and to the NAP or the replies under section F.2. of this appendix. ICC, as appropriate, copies with all person- The DOHA Appeal Board may require oral ally identifiable information deleted, of the argument at a time and place reasonably hearing officer’s findings of fact and decision convenient to the parties. or, in cases that are administratively ap- 4. The determination of the DOHA Appeal pealed, of the final decision of the DOHA Ap- Board shall be a final administrative deci- peal Board. sion and shall be in written form. It shall ad- c. The hearing officer shall have the au- dress the issues presented and set forth a ra- thority to impose financial responsibility for tionale for the decision reached. A deter- early intervention services, educational mination denying the appeal of a parent in placements, evaluations, and related services whole or in part shall state that the parent under his or her findings of fact and decision. has the right under 20 U.S.C. 921 et seq. and d. The findings of fact and decision of the 1400 et seq., to bring a civil action on the hearing officer shall become final unless a matters in dispute in a district court of the notice of appeal is filed under section F.1. United States without regard to the amount The DoDDS or the Military Department con- in controversy. cerned shall implement a decision as soon as 5. No provision of this Instruction or other practicable after it becomes final. DoD guidance may be construed as conferring a further right of administrative review. E. Determination Without Hearing A party must exhaust all administrative 1. At the request of a parent of an infant, remedies afforded by this appendix before toddler, or child age 3 to 21, inclusive, when seeking judicial review of a determination early intervention or special educational (in- made under this appendix. cluding related) services are at issue, the requirement for a hearing may be waived, and G. Publication and Indexing of Final Decisions the case may be submitted to the hearing of- The Director, DOHA, shall ensure that ficer on written documents filed by the par- final decisions in cases arising under this ap- ties. The hearing officer shall make findings pendix are published and indexed to protect of fact and issue a decision in the period the privacy rights of the parents who are fixed by paragraph D.1.o. of this appendix. parties in those cases and the children of 2. The DoDDS or the Military Department such parents, in accordance with DoD Direc- concerned may oppose a request to waive tive 5400.111. that hearing. In that event, the hearing officer shall rule on that request. 3. Documents submitted to the hearing of- PART 58—HUMAN ficer in a case determined without a hearing IMMUNODEFICIENCY VIRUS shall comply with paragraph D.1.h. of this (HIV–1) appendix. A party submitting such documents shall provide copies to all other parties. Sec. 58.1 Purpose. F. Appeal 58.2 Applicability. 1. A party may appeal the hearing officer’s 58.3 Definitions. findings of fact and decision by filing a writ- 58.4 Policy. ten notice of appeal with the Director, 58.5 Responsibilities. DOHA, within 5 calendar days of receipt of 58.6 Procedures. the findings of fact and decision. The notice APPENDIX A TO PART 58—ADMINISTRATION OF of appeal must contain the appellant’s cer- OFFICER APPLICANTS tification that a copy of the notice of appeal APPENDIX B TO PART 58—HIV–1 TESTING OF has been provided to all other parties. Filing DOD CIVILIAN EMPLOYEES is complete on mailing. 2. Within 10 calendar days of filing the notice of appeal, the appellant shall submit a 1 Copies may be obtained, at cost, from the written statement of issues and arguments National Technical Information Service, 5285 to the Director, DOHA, with a copy to the Port Royal Road, Springfield, VA 22161.

211 § 58.1 32 CFR Ch. I (7–1–97 Edition)

APPENDIX C TO PART 58—PERSONNEL NOTIFI- (b) HIV–1 and/or AIDS Education Pro- CATION AND EPIDEMIOLOGICAL INVESTIGA- gram. Any combination of information, TION education, and behavior-change strate- AUTHORITY: 10 U.S.C. 113. gies designed to facilitate behavioral SOURCE: 56 FR 15281, Apr. 16, 1991, unless alteration that will improve or protect otherwise noted. health. Included are those activities intended to support or influence individ- § 58.1 Purpose. uals in managing their own health This part supersedes Deputy Sec- through lifestyle decisions and self- retary of Defense Memorandum, ‘‘Pol- care. Operationally, such programs in- icy on Identification, Surveillance, and clude community, worksite, and clini- Administration of Personnel Infected cal aspects using appropriate public with Human Immunodeficiency Virus health education methodologies. (HIV),’’ August 4, 1988, Deputy Sec- (c) Serologic Evidence of HIV–1 Infec- retary of Defense Memorandum, ‘‘Rec- tion. A reactive result given by a Food ommendations for Revision of DoD and Drug Administration (FDA)-ap- Human Immunodeficiency Virus (HIV) proved enzyme-linked immunosorbent Policies,’’ March 8, 1988, Assistant Sec- assay (ELISA) serologic test that is retary of Defense (Health Affairs) confirmed by a reactive and diagnostic Memorandum, ‘‘Policy on Clinical immunoelectrophoresis test (Western Evaluation, Staging and Disease Cod- ing of Military Personnel Infected with blot (WB)) test on two separate sam- Human Immunodeficiency Virus ples. (HIV),’’ September 11, 1987, Assistant (d) Host Nation. A foreign nation to Secretary of Defense (Health Affairs) which DoD U.S. civilian employees are Memorandum, ‘‘The DoD HTLV-III assigned to perform their official du- Testing Program,’’ December 5, 1985, ties. Assistant Secretary of Defense (Health (e) DoD Civilian Employees. Current Affairs) Memorandum, ‘‘Military Im- and prospective DoD U.S. civilian em- plementation of Public Health Service ployees, including appropriated and Provisional Recommendations Con- nonappropriated fund personnel. This cerning Testing Blood and Plasma for does not include members of the family Antibodies to HTLV–III,’’ July 17, 1985, of DoD civilian employees, employees to update policy, responsibilities, and of, or applicants for, positions with procedures on identification, surveil- contractors performing work for the lance, and administration of civilian Department of Defense, or their fami- and military personnel infected with lies. HIV–1. (f) Epidemiological Assessment. The process by which personal and con- § 58.2 Applicability. fidential information on the possible This part applies to the Office of the modes of transmission of HIV–1 are ob- Secretary of Defense, the Military De- tained from an HIV–1 infected person. partments (including their Reserve This information is used to determine components), the Chairman of the if previous, present, or future contacts Joint Chiefs of Staff and the Joint of the infected individual are at risk Staff, the Unified and Specified Com- for infection with HIV–1 and to prevent mands, and the Defense Agencies (here- further transmission of HIV–1. after referred to collectively as ‘‘the DoD Components’’). The term ‘‘Mili- § 58.4 Policy. tary Services,’’ as used herein, refers to the Army, the Navy, the Air Force, and It is DoD policy to: the Marine Corps. (a) Deny eligibility for appointment or enlistment for Military Service to § 58.3 Definitions. individuals with serologic evidence of (a) Human Immunodeficiency Virus–1 HIV–1 infection. (HIV–1). The virus most commonly as- (b) Screen active duty (AD) and Re- sociated with the Acquired Immune serve component military personnel Deficiency Syndrome (AIDS) in the periodically for serologic evidence of United States. HIV–1 infection.

212 Office of the Secretary of Defense § 58.5

(c) Refer AD personnel with serologic (h) Control transmission of HIV–1 evidence of HIV–1 infection for a medi- through an aggressive disease surveil- cal evaluation of fitness for continued lance and health education program. service in the same manner as person- (i) Provide education and voluntary nel with other progressive illnesses, as HIV–1 serologic screening for DoD specified in DoD Directive 1332.18.1 healthcare beneficiaries (other than Medical evaluation shall be conducted Service members). in accordance with the standard clini- (j) Comply with host-nation require- cal protocol, as described in the Stand- ments for HIV–1 screening of DoD civil- 2 ard Clinical Protocol. Individuals with ian employees, as described in appendix serologic evidence of HIV–1 infection B to this part. who are fit for duty shall not be retired or separated solely on the basis of sero- § 58.5 Responsibilities. logic evidence of HIV–1 infection. AD personnel with serological evidence of (a) The Assistant Secretary of De- HIV–1 infection or who are ELISA re- fense (Health Affairs), in coordination peatedly reactive, but WB negative or with the Assistant Secretary of De- indeterminate, shall be advised to re- fense (Force Management and Person- frain from donating blood. nel) (ASD(FM&P)), the General Coun- (d) Deny eligibility for extended AD sel of the Department of Defense (GC, (duty for a period of more than 30 days) DoD), and the Assistant Secretary of to those Reserve component members Defense (Reserve Affairs), is respon- with serologic evidence of HIV–1 infec- sible for establishing policies, proce- tion (except under conditions of mobi- dures, and standards for the identifica- lization and on the decision of the Sec- tion, surveillance, and administration retary of the Military Department con- of personnel infected with HIV–1. The cerned). Reserve component members Assistant Secretary of Defense (Health who are not on extended AD or who are Affairs) (ASD(HA)) shall provide over- not on extended full-time National all policy guidance and approval for Guard duty, and who show serologic the HIV–1 and/or AIDS education and evidence of HIV–1 infection, shall be information efforts and shall establish transferred involuntarily to the Stand- the HIV–1 and/or AIDS Information and by Reserve only if they cannot be uti- Education Coordinating Committee. lized in the Selected Reserve. (b) The Secretaries of the Military (e) Retire or separate AD or Reserve Departments shall establish Service Service members infected with HIV–1 policies, procedures, and standards for who are determined to be unfit for fur- the identification, surveillance, edu- ther duty, as implemented in DoD Di- cation, and administration of personnel rective 1332.18. infected with HIV–1, based on and con- (f) Ensure the safety of the blood sup- sistent with all sections of this part. ply through policies of the Head of the (c) The Assistant Secretary of De- Armed Services Blood Program Office, fense (Force Management and Person- the FDA guidelines, and the accredita- nel) shall establish and revise policies tion requirements of the Head of the governing HIV–1 screening of DoD ci- American Association of Blood Banks. vilian employees assigned to, perform- (g) Comply with applicable statutory ing official travel in, or deployed on limitations on the use of the informa- ships with ports of call at host nations, tion obtained from a Service member in coordination with the ASD(HA), the during, or as a result of, an epidemio- Assistant Secretary of Defense (Inter- logic assessment interview and the re- national Security Affairs), and the GC, sults obtained from laboratory tests DoD. for HIV–1, as provided in this part. (d) The Assistant Secretary of De- fense (International Security Affairs) 1 Copies may be obtained at cost, from the shall identify or confirm host-nation National Technical Information Services, HIV–1 screening requirements for DoD 5285 Port Royal Road, Springfield, VA 22161. 2 Forward requests for copies to the Office civilians, transmit this information to of the Assistant Secretary of Defense (Health the ASD(FM&P), and coordinate re- Affairs), the Pentagon, Washington, DC quests for screening with the Secretary 20301–1200. of State.

213 § 58.6 32 CFR Ch. I (7–1–97 Edition)

(e) The Heads of the DoD Components sion medical fitness standards to en- shall implement HIV–1 screening poli- list, or be appointed, are not eligible cies and procedures for DoD civilian for Military Service with the Reserve employees identified in § 58.5(c) and components. shall take the following actions: (e) Initial testing and periodic retest- (1) Report newly established host-na- ing of AD and Reserve component per- tion HIV–1 screening requirements to sonnel shall be accomplished in the pri- the ASD(FM&P) and provide sufficient ority listed in Disease Surveillance and background information to support a Health Education.5 decision. This reporting requirement is (f) AD personnel (including Active exempt from licensing, in accordance Guard and/or Reserve) who exhibit se- with DoD 7750.5–M,3 paragraph E.4.b. rologic evidence of HIV–1 infection (2) Develop and distribute policy im- shall receive a medical evaluation. plementing instructions. Guard and Reserve personnel, not on (3) Establish procedures to notify in- extended AD, must obtain a medical dividuals who are evaluated as HIV–1 evaluation from a civilian physician. seropositive and provide initial coun- (g) The Head of each Military Service seling to them. shall appoint an HIV–1 and/or AIDS § 58.6 Procedures. education program coordinator to serve as the focal point for all HIV–1 (a) Applicants for Military Service and/or AIDS education program issues and, periodically, AD and Reserve com- and to integrate the educational activi- ponent military personnel shall be ties of the medical and personnel de- screened for serologic evidence of HIV– partments. 1 infection. Testing and interpretation of results shall be in accordance with (h) An HIV–1 and/or AIDS Informa- the procedures in HIV–1 Testing and tion and Education Coordinating Com- Interpretation of Results.4 Test results mittee shall be established to enhance shall be reported to the Reportable Dis- communication among the Heads of ease Data Base, as described in the the Military Services, recommend joint ASD(HA) Memorandum. education policy and program actions, (b) Applicants for enlisted service review education program implementa- shall be screened at the Military En- tion, and recommend methodologies trance Processing Stations or the ini- and procedures for program evaluation. tial point of entry to Military Service. That committee shall be chaired by a Applicants who enlist under a delayed representative of the ASD(HA). Mem- enlistment program, but before entry bers shall include two representatives on AD and who exhibit serologic evi- from the Office of the ASD(FM&P) dence of HIV–1 infection, may be dis- (OASD(FM&P)), and the HIV–1 and/or charged due to erroneous enlistment. AIDS education program coordinator (c) Officer candidates shall be from each Military Service. Additional screened during their preappointment members shall represent the Armed and/or precontracting physical exam- Services Blood Program Office and, on ination. The disposition of officer ap- an ad hoc basis, the Office of the plicants who are ineligible for appoint- ASD(HA). Policy and program propos- ment due to serologic evidence of HIV– als shall be coordinated with the Sec- 1 infection shall be in accordance with retaries of the Military Departments. the procedures in appendix A of this (i) The Head of each Military Service part. shall prepare a plan for the implemen- (d) Applicants for Reserve compo- tation of a comprehensive HIV–1 and/or nents shall be screened during the nor- AIDS education program that includes mal entry physical examinations or in specific objectives with measurable ac- the preappointment programs estab- tion steps. The plan shall address infor- lished for officers. Those individuals mation, education, and behavior- with serologic evidence of HIV–1 infec- change strategies, as described in Dis- tion who are required to meet acces- ease Surveillance and Health Edu- cation. 3 See footnote 1 to § 58.4(c) 4 See footnote 2 to § 58.4(c) 5 See footnote 2 to § 58.4(c).

214 Office of the Secretary of Defense § 58.6

(j) Civilians may not be mandatorily appropriate protection of information tested for serologic evidence of HIV–1 given by the Service member on the infection except as necessary to com- means of transmission. ply with valid host-nation require- (o) The Secretary of the Army, as the ments for screening of DoD employees. Head of the lead Agency for infectious Procedures for mandatory screening of disease research within the Depart- DoD civilians shall be in accordance ment of Defense, shall budget for and with appendix B of this part. fund tri-Military Department DoD (k) The medical assessment of each HIV–1 research efforts, in accordance exposure to, and/or case of, HIV–1 in- with guidance provided by the fection seen at a military medical ASD(HA). The research program shall treatment facility (MTF) shall include focus on the epidemiology and natural an epidemiological assessment of the history of HIV–1 infections in military potential transmission of HIV–1 to and military associated populations; on other persons at risk of infection, in- improving the methods for rapid diag- cluding sexual and other intimate con- nosis and patient evaluation; and on tacts and family of the patient, and studies of the immune response to transfusion history. The occurrence of HIV–1 infection, including the poten- HIV–1 infection or serologic evidence of tial for increased risk in the military HIV–1 infection may not be used as a operational environment. basis for any disciplinary action (p) Service members with serologic against an individual, except as de- evidence of HIV–1 infection shall be as- scribed in Limitations on the Use of In- signed within the United States, information.6 cluding Alaska, Hawaii, and Puerto (l) Each Head of a military medical Rico, due to the high priority assigned service shall ensure conduction of an ongoing clinical evaluation of each AD to the continued medical evaluation of Service member with serological evi- military personnel. The Secretaries of dence of HIV–1 infection at least annu- the Military Departments may restrict ally. CD4 lymphocyte percentages or such individuals to nondeployable counts shall be monitored at least units or positions for purposes of force every 6 months. Appropriate preventive readiness. To protect the health and medicine counseling shall also be pro- safety of Service members with sero- vided to all individual patients, and logic evidence of HIV–1 infection and of public health education materials shall other Service members (and for no be made available to that medical serv- other reason), the Secretaries of the ices’ beneficiary population. Each Head Military Departments may, on a case- of a military medical service shall en- by-case basis, limit assignment of HIV– sure conduction of longitudinal clinical 1-infected individuals on the nature evaluations of AD Service members and location of the duties performed in with serologic evidence of HIV–1 infec- accordance with operational require- tion and shall ensure preparation of in- ments. ternal reports to facilitate timely re- (q) AD and Reserve component per- view and reassessment of current pol- sonnel with serologic evidence of HIV– icy guidelines. 1 infection shall be retained or sepa- (m) All Heads of the military MTFs rated in accordance with Retention and shall notify promptly the cognizant Separation.7 military health authority, when there (r) The ASD(HA), in coordination is clinical or laboratory evidence indic- with the Heads of the Military Serv- ative of infection with HIV–1, in ac- ices, shall revise Standard Clinical cordance with appendix C of this part. Protocol, HIV–1 Testing and Interpre- (n) The Secretary of each Military tation of Results, Disease Surveillance Department shall ensure that a mecha- and Health Education, Procedure for nism is established to gather data on Evaluating T-Helper Cell Count, as ap- the epidemiology of HIV–1 infection of propriate. The ASD(FM&P) shall revise its members. Such epidemiological re- appendix B to this part, as appropriate, search shall be accomplished to ensure through publication in the FEDERAL

6 See footnote 2 to § 58.4(c). 7 See footnote 2 to § 58.4(c).

215 Pt. 58, App. A 32 CFR Ch. I (7–1–97 Edition)

REGISTER. Revisions under this para- is confirmed. Disenrolled officers shall be ad- graph shall be in coordination with the ministered in accordance with Service regu- GC, DoD. lations. Except as specifically prohibited by statute, any additional Service obligation APPENDIX A TO PART 58—ADMINISTRA- incurred by participation in such programs shall be waived, and financial assistance re- TION OF OFFICER APPLICANTS ceived in these programs shall not be subject Administration of officer applicants who to recoupment. Periods spent by such offi- are ineligible for appointment, due to sero- cers in these programs shall be applied fully logic evidence of HIV–1 infection, shall be in toward satisfaction of any preexisting Serv- accordance with the following provisions: ice obligation. A. Enlisted members who are candidates E. All personnel disenrolled from officer for appointment through Officer Candidate programs who are to be separated shall be School (OCS) or Officer Training School given appropriate counseling, to include pre- (OTS) programs shall be disenrolled imme- ventive medicine counseling and advice to diately from the program. If OCS and/or OTS seek treatment from a civilian physician. is the individual’s initial entry training, the individual shall be discharged. If the sole APPENDIX B TO PART 58—HIV–1 TESTING basis for discharge is serologic evidence of OF DOD CIVILIAN EMPLOYEES HIV–1 infection, an honorable or entry-level discharge, as appropriate, shall be issued. A A. Requests for authority to screen DoD ci- candidate who has completed initial entry vilian employees for HIV–1 shall be directed training during the current period of service to the ASD(FM&P). Only requests that are before entry into candidate status shall be based on a host-nation HIV–1 screening re- administered in accordance with Service reg- quirement shall be accepted. Requests based ulations for enlisted personnel. on other concerns, such as sensitive foreign B. Individuals in preappointment pro- policy or medical healthcare issues, shall not grams, such as Reserve Officer Training be considered under this part. Approvals Corps (ROTC) and Health Professions Schol- shall be provided in writing by the arship Program participants, shall be ASD(FM&P). Approvals shall apply to all of disenrolled from the program. However, the the Heads of the DoD Components that may Head of the Military Service concerned, or have activities located in the host nation. the designated representative, may delay B. Specific HIV–1 screening requirements disenrollment to the end of the academic may apply to DoD civilian employees cur- term (i.e., semester, quarter, or similar pe- rently assigned to positions in the host na- riod) in which serologic evidence of HIV–1 in- tion, and to prospective employees. When ap- fection is confirmed. Disenrolled partici- plied to prospective employees, HIV–1 pants shall be permitted to retain any finan- screening shall be considered as a require- cial support through the end of the academic ment imposed by another nation that must term in which the disenrollment is effected. be met before the final decision to select the Financial assistance received in these pro- individual for a position or before approving grams is not subject to recoupment, if the temporary duty or detail to the host nation. sole basis for disenrollment is serologic evi- The Secretary of Defense has made no offi- dence of HIV–1 infection. cial commitment, for positions located in C. Service academy cadets, midshipmen, host nations with HIV–1 screening require- and personnel attending the Uniformed Serv- ments, to those individuals who refuse to co- ices University of the Health Sciences operate with the screening requirement or to (USUHS) shall be separated from the respective Service academy or USUHS and dis- those who cooperate and are diagnosed as charged. The Head of the Military Service HIV–1 seropositive. concerned, or the designated representative, C. DoD civilian employees who refuse to may delay separation to the end of the cur- cooperate with the screening requirement rent academic year. A cadet or midshipman shall be treated, as follows: granted such a delay in the final academic 1. Those who volunteered for the assign- year, who is otherwise qualified, may be ment, whether permanent or temporary, graduated without commission and, there- shall be retained in their official position after, discharged. If the sole basis for dis- without further action and without prejudice charge is serologic evidence of HIV–1 infec- to employee benefits, career progression option, an honorable discharge shall be issued. portunities, or other personnel actions to D. Commissioned officers in DoD-sponsored which those employees are entitled under ap- professional education programs leading to plicable law or regulation. appointment in a professional military spe- 2. Those who are obligated to accept cialty (including, but not limited to, medi- asssignment to the host nation under the cal, dental, chaplain, and legal and/or judge terms of an employment agreement, regu- advocate) shall be disenrolled from the pro- larly scheduled tour of duty, or similar and/ gram at the end of the academic term in or prior obligation may be subjected to an which serologic evidence of HIV–1 infection appropriate adverse personnel action under

216 Office of the Secretary of Defense Pt. 58, App. C

the specific terms of the employment agree- uals, consistent with the ASD(FM&P) Memo- ment or other authorities that may apply. randum and DoD Directive 5400.11.3 3. Host-nation screening requirements, H. Tests shall be provided by the Heads of which apply to DoD civilian employees cur- the DoD Components at no cost to the DoD rently located in that county, also must be civilian employees, including applicants. observed. Appropriate personnel actions may I. DoD civilian employees infected with be taken, without prejudice to employee HIV–1 shall be counseled appropriately. rights and privileges, to comply with the requirements. APPENDIX C TO PART 58—PERSONNEL D. Individuals who are not employed in the NOTIFICATION AND EPIDEMIOLOGICAL host nation, who accept the screening, and INVESTIGATION who are evaluated as HIV–1 seropositive shall be denied the assignment on the basis A. Personnel Notification that evidence of seronegativity is required by the host nation. If denied the assignment, 1. On notification by a medical health au- such DoD employees shall be retained in thority of an individual with serologic or their current positions without prejudice. other laboratory or clinical evidence of HIV– Appropriate personnel actions may be taken, 1 infection, the cognizant military health au- without prejudice to employee rights and thority shall undertake preventive medicine privileges, on DoD civilian employees cur- intervention, including counseling of the in- rently located in the host nation. In all dividual and others at risk of infection, such cases, employees shall be given proper coun- as his or her sexual contacts (who are mili- seling and shall retain all the rights and ben- tary healthcare beneficiaries), on trans- efits to which they are entitled, including mission of the virus. The cognizant military accommodations for the handicapped as in health authority shall coordinate with the the ASD(FM&P) Memorandum 1 ‘‘Informa- Heads of the military and civilian blood tion and Guidance on Human bank organizations and preventive medicine Immunodeficiency Virus (HIV)’’ January 22, authorities to trace back possible exposure 1988 and FPM Bulletin, 792–42 2 and for em- through blood transfusion or donation of in- ployees in the United States (29 U.S.C. 794). fected blood (ASD(HA)) Memorandum and Non-DoD employees should be referred to ap- refer appropriate case-contact information propriate support service organizations. to the appropriate military or civilian E. Some host nations may not bar entry to health authority. HIV–1-seropositive DoD civilian employees, 2. All individuals with serologic evidence but may require reporting of such individ- of HIV–1 infection who are military uals to host-nation authorities. In such healthcare beneficiaries shall be counseled cases, DoD civilian employees who are evalu- by a physician or a designated healthcare ated as HIV–1 seropositive shall be informed provider on the significance of a positive of the reporting requirements. They shall be antibody test. They shall be advised as to counseled and given the option of declining the mode of transmission of that virus, the the assignment and retaining their official appropriate precautions and personal hy- positions without prejudice or notification giene measures required to minimize trans- to the host nation. If assignment is accepted, mission through sexual activities and/or inti- the requesting authority shall release the mate contact with blood or blood products, HIV–1 seropositive result, as required. Em- and of the need to advise any past sexual ployees currently located in the host nation partners of their infection. Women shall be may also decline to have seropositive results advised of the risk of perinatal transmission released. In such cases, they may request during past, current, and future pregnancies. and shall be granted early return at Govern- The infected individuals shall be informed ment expense or other appropriate personnel that they are ineligible to donate blood and action without prejudice to employee rights shall be placed on a permanent donor defer- and privileges. ral list. F. A positive confirmatory test by WB 3. Service members identified to be at risk must be accomplished on an individual if the shall be counseled and tested for serologic screening test (ELISA) is positive. A civilian evidence of HIV–1 infection. Other DoD bene- employee may not be identified as HIV–1 ficiaries, such as retirees and family mem- antibody positive, unless the confirmatory bers, identified to be at risk shall be in- test (WB) is positive. The clinical standards formed of their risk and offered serologic in this Directive shall be observed during testing, clinical evaluation, and counseling. initial and confirmatory testing. The names of individuals identified to be at G. Procedures shall be established by the risk who are not eligible for military Heads of the DoD Components to protect the healthcare shall be provided to civilian confidentiality of test results for all individ- health authorities in the local area where the index case is identified, unless prohibited 1 See footnote 2 to § 58.4(c). 2 See footnote 2 to § 58.4(c). 3 See footnote 1 to § 58.4(c).

217 § 59.1 32 CFR Ch. I (7–1–97 Edition) by the appropriate State or host-nation ci- AUTHORITY: 37 U.S.C. chapter 13. vilian health authority. Such notification SOURCE: 52 FR 34215, Sept. 10, 1987, unless shall comply with the Privacy Act (5 U.S.C. otherwise noted. 552a). Anonymity of the HIV–1 index case shall be maintained, unless reporting is re- § 59.1 Purpose. quired by civil authorities. 4. Blood donors who demonstrate repeat- This part updates the policies that edly reactive ELISA tests for HIV–1, but for implement title 37 U.S. Code, chapter whom WB or other confirmatory test is neg- 13 and govern voluntary allotments of ative or indeterminate, and who cannot be pay and allowances for active and re- reentered into the blood donor pool shall be tired members. appropriately counseled. § 59.2 Applicability. B. Epidemiological Investigation This part applies to the Office of the 1. Epidemiological investigation shall at- Secretary of Defense and the Military tempt to determine potential contacts of pa- Departments. The term ‘‘Military tients who have serologic or other labora- Service,’’ as used herein, refers to the tory or clinical evidence of HIV–1 infection. Army, Navy, Air Force, and Marine The patient shall be informed of the impor- Corps. tance of case-contact notification to inter- rupt disease transmission and shall be in- § 59.3 Policy. formed that contacts shall be advised or their potential exposure to HIV–1. Individ- (a) General. (1) The voluntary allot- uals at risk of infection include sexual con- ment system is provided primarily as a tacts (male and female); children born to in- means to assist military members in fected mothers; recipients of blood, blood accommodating their personal and products, organs, tissues, or sperm; and users family financial responsibilities to the of contaminated intravenous drug para- exigencies of military service. It is a phernalia. Those individuals determined to convenience and privilege not to be ex- be at risk who are identified and who are eli- ploited or abused. To avoid unjustifi- gible for healthcare in the military medical able expense to the government, its use system shall be notified. Additionally, the Secretaries of the Military Departments shall be limited to the purposes out- shall provide for the notification, either lined in the following paragraphs. through local public health authorities or by (2) All existing approved registered DoD healthcare professionals, of the spouses allotments of military pay and allow- of Reserve component members found to be ances for active duty and retired mem- HIV–1-infected. Such notifications shall bers that were authorized previously comply with the Privacy Act (5 U.S.C. 552a). by this part at the time registered may The Secretaries of the Military Departments be continued as approved allotments. shall designate all spouses (regardless of the However, if any such allotments are Service affiliation of the HIV–1-infected Re- discontinued, they may not be reestab- servist) who are notified under this provision lished except as a new allotment in ac- to receive serologic testing and counseling on a voluntary basis from MTFs under the cordance with the requirements of this Secretaries’ of the Military Departments ju- part. Any change in the allotment that risdiction. is initiated by the service member is 2. Communicable disease reporting proce- considered a discontinuance, except dures of civil authorities shall be followed to those that are beyond the control of the extent consistent with this Directive the service member. through liaison between the military public (3) Changes beyond the control of the health authorities and the appropriate local, service member are changes that are of State, territorial, Federal, or host-nation an administrative nature dictated by health jurisdiction. events incidental to the purpose of the allotment. Examples of administrative PART 59—VOLUNTARY MILITARY changes that are beyond the control of PAY ALLOTMENTS the service member are: name and address changes by the payee or amount Sec. changes due to contractual obligation 59.1 Purpose. existing at the time the allotment was 59.2 Applicability. executed, such as a mortgage payment 59.3 Policy. change because of a variable rate mort- 59.4 Responsibilities. gage or changing escrow requirements.

218 Office of the Secretary of Defense § 59.3

Although the changes given above do tration or guaranteed by the Veterans not constitute a discontinuance, such Administration (VA); payment of administrative changes that adjust the amounts due under the Retired Serv- amount of the allotment shall be ac- iceman’s Family Protection Plan, in cepted only when communicated by the the case of retired service members service member on a new allotment re- serving on active duty; payment of de- quest. Discontinuance occurs with any linquent Federal income taxes; and mortgage refinancing action. other indebtedness to any department (4) A change in allotment initiated or agency of the U.S. Government, ex- by an organizational allottee may be cept to the department paying the accepted when the change is docu- service member. mented properly, is of an administra- (ii) This includes repayment of debts tive nature, and does not increase the amount allotted. owed to an organization for funds ad- (b) Active Military Service. Voluntary ministered on behalf of the U.S. Gov- allotments of military pay and allow- ernment and any such debts assigned ances of service members in active to a collection agency. military service shall be limited to the (6) The payment to a financial orga- following: nization for credit to an account of the (1) The purchase of U.S. savings service member. A financial organiza- bonds. tion is any bank, savings bank, savings (2) The payment of premiums for in- and loan association or similar institu- surance on the life of the allotter, in- tion, or Federal or State chartered cluding U.S. Government Life Insur- credit union. Monies thus credited to ance, National Service Life Insurance, the service member’s account may Veterans Group Life Insurance, Navy then be used for any purpose in accord- Mutual Aid Insurance, Army Mutual ance with the desires and direction of Aid Insurance, and commercial life in- the service member. No more than two surance. such allotments under this paragraph (i) Allotments for insurance on the shall be allowed any service member at lives of a spouse or children. any one time. (ii) Allotments for health, accident, (7) Repayment of loans obtained for or hospitalization insurance or other the purchase of a home, including a contracts that, as a secondary or inci- mobile home or house trailer used as a dental feature, include insurance on the life of the service member are not residence by the service member. This authorized. does not authorize repayment of loans (iii) Requests to initiate commercial for business purposes or for additions life insurance allotments shall be proc- or improvements to homes, mobile essed only after compliance with re- homes, or house trailers. Allotments quirements of 32 CFR part 276. authorized herein are in addition to (3) The repayment of loans to the those authorized under paragraph (b)(6) Navy Relief Society, Army Emergency of this section. Only one such allot- Relief, Air Force Aid Society, and ment shall be allowed any service American Red Cross. member at any one time. (4) Allotments to a spouse, former (8) Charitable contributions to the spouses, other dependents, and rel- following: atives who are not designated legally (i) A Combined Federal Campaign, in as dependents. The payment of such an accordance with DOD Directive 5035.1, allotment to a financial institution or ‘‘Fund-Raising Within the Department association shall not deprive a service of Defense,’’ April 7, 1978, and DOD In- member of the use of the allotments struction 5035.5, ‘‘DoD Combined Fed- authorized by paragraph (b)(6) of this eral Campaign-Overseas Areas (CFC– section. OA),’’ August 23, 1978. (5) The voluntary liquidation of indebtedness to the United States. (ii) Army Emergency Relief, Navy (i) This includes indebtedness in- Relief Society, or affiliates of the Air curred by reason of defaulted notes in- Force Assistance Fund. sured by the Federal Housing Adminis-

219 § 59.3 32 CFR Ch. I (7–1–97 Edition)

(9) Deposits to the account of a serv- all allotments authorized for active ice member participating in the Uni- duty service members may be contin- formed Services Savings Deposit Pro- ued, except those allotments in para- gram under 10 U.S.C. 1035. This pro- graph (b) (8)(i), (9) and (10) of this sec- gram is limited to service members in tion. However, if an allotment contin- a missing status as a result of the Viet- ued from active duty, but not author- nam conflict. ized by paragraph (c)(1) of this section (10) Allotments to the VA for deposit is discontinued by the retiree, such an to the Post-Vietnam Era Veterans Edu- allotment may not be reestablished. cation Account within the periodic and (d) Exclusions and Restrictions. (1) The cumulative depository limitations amount of pay and allowances that specified in DOD Directive 1322.8, ‘‘Vol- may be allotted shall exclude amounts untary Educational Programs for Mili- required to be withheld for taxes, liq- tary Personnel,’’ July 23, 1987. Once au- uidations of indebtedness determined thorized by the service member, the al- under applicable provisions of law to be lotments must run a minimum of 12 chargeable against the service mem- consecutive months, unless the service member suspends participation or ber’s pay account, or required pre- disenrolls from the program because of miums on Servicemen’s Group Life In- personal hardship surance. (11) Payment of delinquent State or (2) The total amount that may be al- local income or employment taxes. lotted shall comply with the restric- (12) Dental and health insurance al- tions in the DOD Military Pay and Al- lotments for the benefit of the families lowances Entitlements Manual and of service members. DOD 1340.12–M, ‘‘DOD Military Retired (c) Retired military personnel. (1) Vol- Pay Manual.’’ untary allotments be service members (e) Control and use of forms. (1) Allot- receiving retired or retainer pay shall ment requests shall be accepted only be limited to the following: on authorized allotment forms, unless (i) Purchase of U.S. savings bonds. otherwise provided in this part. Sup- (ii) Payment of premiums for insur- plies of allotment forms shall not be ance on the life of the service member made available to non-Federal organi- including U.S. Government Life Insur- zations, except that each Military De- ance, National Service Life Insurance, partment may authorize issuance of Veterans Group Life Insurance, Navy forms to the Army Emergency Relief, Mutual Aid Insurance, Army Mutual Navy Relief Society, the Air Force Aid Aid Insurance, and commercial life in- Society, and American Red Cross. surance, subject to the limitations pre- (2) Active duty enlisted service mem- scribed in paragraph (b)(2) (i) and (ii) of bers shall sign the allotment author- this section. ization form in the presence of the (iii) Voluntary liquidation of indebt- service member’s commanding officer, edness to the United States, subject to personnel or disbursing officer, or one the limitations prescribed in paragraph of their representative who shall wit- (b)(5) of this section— ness the signature. The Military De- (iv) Allotments to a spouse, former spouse, and/or children of the retired partments may waive this requirement service member having a permanent for senior enlisted service members and residence other than that of the retired loan repayment allotments payable to service member. the Army Emergency Relief, Navy Re- (v) Charitable contributions to the lief Society, the Air Force Aid Society, Army Emergency Relief, Navy Relief and American Red Cross. Society, or affiliates of the Air Force (3) Charitable contribution allotment Assistance Fund. requests by enlisted members may be (vi) The repayment of loans to the accepted without a witnessing official, Army Emergency Relief, Navy Relief when submitted on contribution forms Society, Air Force Aid Society, or in accordance with DOD Directive American Red Cross. 5035.1 and DOD Instruction 5035.5. (2) To assist personnel in the transi- (4) Retired military personnel need tion from active duty to retired status, not submit allotment requests on the

220 Office of the Secretary of Defense § 61.4 prescribed forms. A signed personal let- ability insurance for Department of ter may be used to support an allot- Defense health care personnel is hereby ment request, change, or cancellation delegated to: by retired military members as long as (1) The Secretary of each Military all required information is provided. Department for military members and civilian employees of his Department, § 59.4 Responsibilities. and (a) The Assistant Secretary of De- (2) The Secretary of the Army for ci- fense (Comptroller) shall exercise pri- vilian employees of the Office of the mary management responsibility for Secretary of Defense and Department the voluntary military pay allotment of Defense Components other than the program and provide assistance to the Military Departments (see DoD Direc- Military Departments in the form of tive 5515.9).1 instructions, requirements, reviews, (b) The authority delegated above and other guidance. may be redelegated as appropriate and (b) The Secretaries of the Military necessary to carry out the provisions Departments shall ensure that this of title 10, U.S.C., section 1089(f). part is implemented by the Military Services concerned. § 61.4 Procedures. (a) In all cases under title 10 U.S.C. PART 61—MEDICAL MALPRACTICE section 1089, medical personnel shall be CLAIMS AGAINST MILITARY AND required to: (1) Promptly forward all process CIVILIAN PERSONNEL OF THE served upon them or attested true cop- ARMED FORCES ies thereof to the appropriate official designated by the Secretary of the Sec. Military Department concerned; 61.1 Purpose. (2) Furnish such other information 61.2 Applicability. 61.3 Delegation of authority. and documents as the Attorney Gen- 61.4 Procedures. eral may request; and (3) Comply with the directions of the AUTHORITY: Pub. L. 94–464, sec. 1(a), 90 Attorney General relative to the final Stat. 1985, 10 U.S.C. 1089(f), 2733 and 5 U.S.C. 301. disposition of a claim for damages. (b) The procedures set forth in title SOURCE: 43 FR 15148, Apr. 11, 1978, unless 10 U.S.C. section 2733 and regulations otherwise noted. issued pursuant thereto shall be uti- § 61.1 Purpose. lized in determining costs, settlements, or judgments under title 10 U.S.C. sec- This Directive: (a) Delegates author- tion 1089(f). ity, with the power to redelegate, to the Secretaries of the Military Depart- ments to provide relief to health care PART 62—ALCOHOL AND DRUG personnel of the Department of Defense ABUSE BY DoD PERSONNEL from personal tort liability in connection with their authorized activities, Sec. and (b) establishes procedures to be fol- 62.1 Purpose. 62.2 Applicability. lowed in providing such relief. 62.3 Definitions. 62.4 Policy. § 61.2 Applicability. 62.5 Responsibilities.

The provisions of this Directive apply AUTHORITY: 5 U.S.C. 301, Pub. L. 92–255, 91– to the Office of the Secretary of De- 616, 92–129, and 91–513. fense, the Military Departments, and all other Department of Defense Com- SOURCE: 45 FR 61615, Sept. 17, 1980, unless otherwise noted. ponents.

§ 61.3 Delegation of authority. 1 Filed as part of original. Copies may be obtained, if needed, from the U.S. Naval Pub- (a) The authority vested in the Sec- lications and Forms Center, 5801 Tabor Ave- retary of Defense by title 10 U.S.C. sec- nue, Philadelphia, Pa. 19120 Attention: Code tion 1089(f) hold harmless or provide li- 301.

221 § 62.1 32 CFR Ch. I (7–1–97 Edition)

§ 62.1 Purpose. paired capability to perform normal functions. (a) This part states the DoD alcohol (2) Physical dependence. An alteration and drug abuse prevention policy, and or state of adaptation to a drug after implements the standards contained in repeated use that results in withdrawal Pub. L. 92–255 (86 Stat 65), as amended, symptoms when the drug is discon- 91–616 (84 Stat 1848), as amended, and tinued abruptly and/or the develop- 92–129 (85 Stat 361), as amended, and the ment of tolerance. Federal Personnel Manual (FPM) Sup- (d) Drug abuse paraphernalia. All plement 792–2, February 1980. equipment, products, and materials of (b) In addition, this part establishes any kind that are used, intended for policy concerning drug abuse para- use, or designed for use, in planting, phernalia. propagating, cultivating, growing, har- § 62.2 Applicability. vesting, manufacturing, compounding, converting, producing, processing, pre- The provisions of this part apply to paring, testing, analyzing, packaging, the Office of the Secretary of Defense, repackaging, storing, containing, con- the Military Departments, the Organi- cealing, injecting, ingesting, inhaling, zation of the Joint Chiefs of Staff, the or otherwise introducing into the Unified and Specified Commands, and human body a controlled substance in the Defense Agencies. The term ‘‘Mili- violation of the Controlled Substances tary Services’’ includes the Army, Act. Navy, Air Force, and Marine Corps. § 62.4 Policy. § 62.3 Definitions. (a) It is the goal of the Department of The following definitions are for Defense to be free of the effects of alco- operational use within the Department hol and drug abuse; of the possession of of Defense. They do not change defini- and trafficking in illicit drugs by mili- tions in statutory provisions and those tary and civilian members of the De- regulations and directives that are con- partment of Defense; and of the posses- cerned with determination of mission, use, sale, or promotion of drug conduct and criminal or civil respon- abuse paraphernalia. Alcohol and drug sibilities for persons’ acts or omissions. abuse is incompatible with the mainte- (a) Alcohol and drug abuse. The use of nance of high standards of perform- alcohol and/or other drugs to an extent ance, military discipline, and readi- that it has an adverse effect on the ness. Therefore, it is the policy of the user’s health or behavior, family, com- Department of Defense to: munity, or the Department of Defense (1) Assess the alcohol and drug abuse and/or the illegal use of such sub- and drug trafficking situation in or instances. fluencing the Department of Defense. (b) Drug trafficking. The illegal or (2) Not induct persons into the Mili- wrongful introduction of drugs into a tary Services who are alcohol or drug military installation, with the intent dependent and not hire persons who are of selling or transferring the drugs; or alcohol or drug dependent if that de- the illegal or wrongful sale, transfer, or pendency impairs job performance. distribution of drugs as they are listed (3) Deter and detect alcohol and drug in current schedules of the Controlled abuse within the Armed Forces and de- Substances Act, title II, Comprehen- fense community and drug trafficking sive Drug Abuse and Control Act of 1970 on installations and facilities under (Pub. L. 91–513) (21 CFR parts 1300–1316). the control of the Department of De- (c) Alcohol and drug dependence. The fense. reliance on alcohol and/or other drugs (4) Provide continuing education and following administration on a periodic training to commanders, supervisors, or continuing basis. Dependence may program personnel, and other military be psychological or physical, or both. members and civilian employees and (1) Psychological dependence. The their families concerning this policy craving for the mental or emotional ef- and effective measures to alleviate fects of a drug that manifests itself in problems associated with alcohol and repeated use and leads to a state of im- drug abuse.

222 Office of the Secretary of Defense § 62.5

(5) Treat or counsel alcohol and drug vention programs reach military mem- abusers and rehabilitate the maximum bers, their families, DoD civilian em- feasible number of them. ployees and, to the extent feasible, (6) Discipline and/or discharge drug their families. Programs and standards traffickers and those alcohol and drug of care for family members shall be abusers who cannot or will not be reha- consistent with those for the military bilitated, in accordance with appro- and civilian components, with accepted priate laws, regulations, and instruc- practice in the alcohol and drug abuse tions. area, and with applicable laws and ju- (7) Work in concert with national al- risdictional limitations. cohol and drug abuse prevention pro- (2) In coordination with the grams, maintaining appropriate rela- ASD(MRA&L), issue DoD instructions tionships with governmental and non- to implement the DoD alcohol and drug governmental agencies. abuse prevention program, with spe- (8) Prohibit members of the Armed cific attention to the functional areas Forces, and DoD civilians while on the of assessment, deterrence and detec- job, to possess, sell, or use drug abuse tion, treatment and rehabilitation, and paraphernalia. education and training. (9) Prohibit the possession or sale of (3) Act as focal point for the Depart- drug abuse paraphernalia by DoD re- ment of Defense for interagency and sale outlets to include military ex- nongovernmental coordination of na- changes, open messes, and com- tional alcohol and drug abuse preven- missaries, and by private organizations tion programs. and concessions located on DoD instal- (4) Evaluate and report upon the ef- lations. fectiveness and efficiency of the DoD (b) The Department of Defense en- alcohol and drug abuse prevention pro- courages DoD Components to use, as gram. guidance and as a legal background in (5) Establish a DoD Alcohol and Drug addressing paraphernalia issues, the Abuse Advisory Committee to advise Model Drug Paraphernalia Act pre- on policy and program matters. The pared by the Drug Enforcement Admin- Committee shall include representa- istration, at the request of the Presi- tives of each Military Service, des- dent (Model Drug Paraphernalia Act, ignated by the Military Department Drug Enforcement, March 1980, Volume concerned, and such other advisors as 7, No. 1). the ASD(HA), or designated representa- (c) Programs and standards of care tive, considers appropriate. The Com- promulgated in execution of this policy mittee charter shall be approved by the for military personnel shall be in com- ASD(HA). pliance with Pub. L. 92–129. (b) The Secretaries of the Military De- (d) Programs and standards of care partments and Directors of Defense Agen- promulgated in execution of this policy cies shall establish and operate pro- for civilian employees shall be in com- grams prescribed by this part and sup- pliance with Pub. L. 92–255, Pub. L. 91– porting DoD instructions. They may 616, and FPM Supplement 792–2. make exceptions to the policy contained in this part only for legitimate § 62.5 Responsibilities. medical, educational, and operational (a) The Assistant Secretary of Defense purposes. This authority shall not be (Health Affairs) (ASD(HA)), or des- delegated. ignated representative, is responsible (c) In addition, the Secretaries of the for the development, coordination, and Military Departments shall require ap- supervision of the DoD alcohol and propriate commanders to assess the drug abuse prevention program, in ac- availability of drug abuse parapherna- cordance with this part and shall: lia in the vicinity of DoD installations (1) In coordination with the Assistant through their Armed Forces Discipli- Secretary of Defense (Manpower, Re- nary Control Boards and in conformity serve Affairs, and Logistics) with the Armed Forces Disciplinary (ASD(MRA&L)), develop and promul- Control Boards and Off-Installation gate policies designed to ensure that Military Enforcement Guidance, and the DoD alcohol and drug abuse pre- take appropriate action, when the

223 § 62b.1 32 CFR Ch. I (7–1–97 Edition) availability of drug abuse parapherna- cipline, DoD personnel reliability, and lia reveals a threat to the discipline, readiness of military units and sup- health, welfare, or morals of the Armed porting activities. It is DoD policy to Forces. reduce significantly the incidence of intoxicated driving within the Depart- PART 62b—DRUNK AND DRUGGED ment of Defense through a coordinated DRIVING BY DoD PERSONNEL program of education, indentification, law enforcement, and treatment. Spe- Sec. cifically, the goal of the DoD Intoxi- 62b.1 Purpose. cated Driving Prevention Program is 62b.2 Applicability. to reduce the number of fatalities and 62b.3 Policy. injuries suffered by DoD personnel and 62b.4 Procedures. the amount of property damage that 62b.5 Responsibilities. result from intoxicated driving. Per- 62b.6 DoD Intoxicated Driving Prevention sons who engage in intoxicated driving, Task Force. 62b.7 Definitions. regardless of the geographic location of the incident, have demonstrated a seri- APPENDIX 1 TO PART 62b—DRIVER’S LICENSE ous disregard for the safety of them- INFORMATION (SAMPLE LETTER) selves and others. It is appropriate for APPENDIX 2 TO PART 62b—STATE DRIVER’S LI- CENSE AGENCIES military commanders, in the exercise of their inherent authority, to protect AUTHORITY: 10 U.S.C. 131. the mission of an installation and the SOURCE: 48 FR 41581, Sept. 16, 1983, unless safety of persons and property therein otherwise noted. to restrict driving privileges of persons who engage in such actions. § 62b.1 Purpose. (b) The Department of Defense shall This part: participate in the national effort to (a) Establishes DoD policy regarding prevent intoxicated driving by main- drunk and drugged driving by DoD pertaining appropriate relationships with sonnel (hereafter referred to as ‘‘intoxi- other governmental agencies and pri- cated driving’’). vate organizations and shall cooperate (b) Assigns responsibility for and ex- with responsible civil authorities con- plains DoD policy and procedures on sistent with statutory and regulatory the establishment and operation of the constraints in detecting, identifying, DoD Intoxicated Driving Prevention apprehending, prosecuting, educating, Program, which is designed to address and counseling intoxicated drivers and the problem of and increase the aware- in reporting cases as required by State ness and attention given to intoxicated laws and applicable Status of Forces driving by DoD personnel. Agreements. (c) Establishes the DoD Intoxicated Driving Prevention Task Force § 62b.4 Procedures. (DIDPTF). (a) Education and training. (1) The Military Services shall provide drug § 62b.2 Applicability. and alcohol education that focuses on This part applies to the Office of the intoxicated driving for each of the fol- Secretary of Defense, the Military De- lowing: law enforcement, public infor- partments, the Organization of the mation, emergency room, and safety Joint Chiefs of Staff, the Unified and personnel. Club managers, bartenders, Specified Commands, and the Defense and waitresses serving alcoholic bev- Agencies (hereafter referred to collec- erages and Class VI or package sales tively as ‘‘DoD Components’’). The personnel shall receive annual re- term ‘‘Military Services,’’ as used here- fresher training. In addition, leadership in, refers to the Army, Navy, Air curricula at all levels (PCO/PXO indoc- Force, and Marine Corps. trination, training for judge advocates and military judges, and officer and § 62b.3 Policy. noncommissioned officer schools) shall (a) Intoxicated driving is incompat- include specific information and a re- ible with the maintenance of high view of current Military Service policy standards of performance, military dis- on intoxicated driving.

224 Office of the Secretary of Defense § 62b.4

(2) Other DoD Components shall pro- (iv) A hearing authorized under para- vide similar instruction in conjunction graph (b) (2), (3), or (5) of this section, with the training and education re- shall be conducted by the installation quirements of part 62a of this title. commander. The power to conduct a (3) DoD Components shall cooperate, hearing and make a decision may be to the extent feasible and permitted by delegated only to an official whose pri- law and regulation, with community mary duties are not in the field of law leaders and existing grassroots organi- enforcement. At a hearing under this zations that are working to combat in- paragraph, the individual shall have toxicated driving, in planning and im- the right to present evidence and wit- plementing local education efforts. nesses at his or her own expense. The (b) Suspension of driving privileges. individual may be represented by coun- Each DoD Component of its supporting sel at his or her own expense. DoD ci- agency that regulates driving privi- vilian personnel may have a personal leges shall establish procedures for representative present in accordance mandatory suspension of driving privi- with applicable laws and regulations. leges on military installations and in areas subject to military traffic super- (2) Suspension based upon lawful ap- vision. They shall establish procedures prehension. (i) Preliminary suspension for acquiring arrest reports and other of driving privileges is mandatory official documentation of intoxicated based upon an arrest report or other of- driving incidents consistent with appli- ficial documentation of the cir- cable laws and regulations. Such proce- cumstances of an apprehension for in- dures shall be sufficiently flexible to toxicated driving. meet local needs. (ii) The individual shall be notified in (1) Military personnel and their fam- writing of the preliminary suspension. ily members, retired members of the The notice shall include the arrest re- Military Services, DoD civilian person- port or other documentation and shall nel, and others with installation driv- inform the individual that a 1-year sus- ing privileges may have those driving pension can be imposed upon convic- privileges suspended, regardless of the tion, imposition of nonjudicial punish- geographic location of an intoxicated ment, or action by civilian authorities driving incident. leading to suspension or revocation of (i) Suspension is authorized for non- the individual’s driver’s license. The DoD civilians only with respect to inci- notice shall inform the individual that dents occurring on the military instal- he or she has the right to submit a relation or in areas subject to military quest within 5 working days to vacate traffic supervision. the preliminary suspension and that (ii) With respect to DoD civilian per- failure to request such a hearing will sonnel covered by a negotiated agree- result in continuation of the prelimi- ment, a suspension under this para- nary suspension. graph may be reviewed only to the ex- (iii) If a hearing has not been re- tent required by the negotiated agree- quested within 5 working days, the pre- ment applicable to the affected employee. Such matters mandatorily are liminary suspension shall be continued excluded from DoD Component admin- until there has been a criminal, non- istrative grievance procedures. A griev- judicial, or administrative disposition. ance under such a procedure will not (iv) If the individual requests a hear- delay imposition of a preliminary or 1- ing to vacate the preliminary suspen- year suspension of driving privileges. sion, it shall be held within 10 working (iii) A notice of suspension will not days of the request. If the official con- become effective until 24 hours after ducting the hearing determines that the incident for which a suspension is the apprehension was based upon prob- imposed. However, this provision does able cause, the preliminary suspension not preclude appropriate action to pre- shall be continued; if not, it shall be vent an intoxicated person from oper- vacated. Such determinations are sole- ating a motor vehicle, nor does it af- ly for purposes of acting on the pre- fect the validity of an earlier suspen- liminary suspension and are without sion imposed on the same individual. prejudice to the rights of any party in

225 § 62b.4 32 CFR Ch. I (7–1–97 Edition) a subsequent criminal or administra- requested to submit to a BAC test? (D) tive proceeding involving the same or a Did the person refuse to submit to or related incident. fail to complete a BAC test required by (v) If the individual is acquitted, the the law of the jurisdiction in which the charges are dismissed, or there is an test was requested? If, in view of these equivalent determination in a non- issues, the test was lawfully requested, judicial punishment proceeding or ci- the suspension shall be for 1 year, irre- vilian administrative action, the pre- spective of the ultimate disposition of liminary suspension shall be vacated. the underlying intoxicated driving of- (vi) If there is a conviction, non- fense. If not, the preliminary suspen- judicial punishment, or civil suspension shall be vacated. Such determina- sion or revocation of driving privileges, tions are solely for purposes of acting the suspension shall be continued for 1 on the preliminary suspension and are year from the date of the original pre- without prejudice to the rights of any liminary suspension. Such action shall party in a subsequent criminal or ad- be taken only on the basis of an official ministrative proceeding involving the report. same or a related incident. (3) Suspension for refusal to take a (4) Suspension upon conviction, non- blood alcohol content (BAC) test (i) Pre- judicial punishment, or civilian adminis- liminary suspension of driving privi- trative action. (i) Suspension of driving leges is mandatory based upon an offi- privileges for 1 year is mandatory when cial report that an individual refused there has been a conviction, non- to submit to a lawfully requested BAC judicial punishment, or civilian revoca- test. tion or suspension of driving privileges (ii) The individual shall be notified of for intoxicated driving, regardless of the preliminary suspension in writing. any prior administrative determina- The notice shall include the arrest re- tion under § 62b.4 (b)(2), (b)(3), or (b)(5). port or other documentation and shall (ii) Such action shall be taken only inform the individual that a 1-year sus- on the basis of an official report. pension can be imposed after a hearing (iii) The individual shall be notified under paragraph (b)(3)(iv) of this sec- in writing of the suspension and shall tion. The notice also shall inform the be notified that an exception may be individual that he or she has the right granted only under paragraph (b)(6) of within 5 working days to submit a re- this section. quest for a hearing to validate the pre- (iv) The suspension shall be issued by liminary suspension and that the sus- the installation commander. This au- pension will be for 1 year if a hearing is thority may be delegated only to an of- not requested. ficial whose primary responsibilities (iii) If a hearing is not requested are not in the field of law enforcement. within 5 working days, the suspension (5) Repeat offenders. (i) Preliminary shall be for 1 year. increase in suspension of driving privi- (iv) If the individual requests a hear- leges is mandatory based upon an ar- ing to vacate the preliminary suspen- rest report or other official documenta- sion, it shall be held within 10 working tion of an individual’s driving in viola- days of the request. The hearing shall tion of a suspension imposed under this consider the arrest report or other offi- part or under similar rules previously cial documentation, information pre- issued by a DoD Component. sented by the individual, and such (A) The individual shall be notified in other information as the hearing offi- writing of the preliminary increase in cer may deem appropriate. The official suspension. The notice shall include conducting the hearing shall consider the arrest report or other documenta- the following issues: (A) Did the offi- tion of the violation as well as docu- cial have reasonable grounds to believe mentation of the original suspension that the person had been operating or and shall inform the individual that his was in actual physical control of, a or her original suspension can be in- motor vehicle while intoxicated? (B) creased by 2 years after a hearing Was the person lawfully cited or appre- under paragraph (b)(5)(i)(C) of this sec- hended for an intoxicated driving of- tion. The notice shall inform the indi- fense? (C) Was the individual lawfully vidual that he or she has the right

226 Office of the Secretary of Defense § 62b.4 within 5 working days to submit a re- hibition upon obtaining or using an SF quest for a hearing to vacate the pre- 46 for a first offense or for such other liminary increase in suspension and reasons as may be authorized under ap- that the original suspension will be in- plicable laws and regulations. creased by 2 years if such a request is (6) Exceptions. (i) Exceptions to the not submitted. mandatory suspension provisions in (B) If a hearing has not been re- this part may be granted under regula- quested within 5 working days, the tions by the DoD Component concerned original suspension shall be increased on a case-by-case basis. Requests for by 2 years. exceptions shall be in writing. Such ex- (C) If the individual requests a hear- ceptions may be granted only on the ing to vacate the preliminary suspen- basis of: sion, it shall be held within 10 working (A) Mission requirements; days of the request. The hearing shall (B) Unusual personal or family hard- consider the arrest report or other offi- ship; or cial documentation, information pre- (C) In the case of a preliminary sus- sented by the individual, documenta- pension following lawful apprehension, tion of the original suspension, and delays exceeding 90 days in the formal such other information as the hearing disposition of the allegations insofar as officer may deem appropriate. If the of- such delays are not attributable to the ficial conducting the hearing deter- individual. mines that the allegation of driving in (ii) With respect to a person who has violation of a suspension is supported no reasonably available alternate by a preponderance of the evidence, the means of transportation to officially original suspension shall be increased assigned duties, a limited exception by 2 years. If not, the preliminary in- shall be granted for the sole purpose of crease in suspension shall be vacated. driving directly to and from such du- Such determinations are without prej- ties. This does not authorize a person udice to the rights of any party in a to drive on a military installation if subsequent criminal or administrative the person’s driver’s license is under proceeding involving the same or a re- suspension or revocation by a State, lated incident. Federal, or host country civil court or (D) If in a subsequent judicial, non- administrative agency. Maximum reli- judicial, or administrative proceeding, ance shall be placed on carpools, public it is determined that the individual did transportation, and reasonably avail- not violate a suspension, the prelimi- able parking facilities adjacent to the nary increase in suspensions shall be installation before such a limited ex- vacated. ception is granted. Nothing in this pro- (ii) For each subsequent determina- vision precludes appropriate or other tion within a 5-year period that a 1- administrative action on the basis of year suspension is authorized under an intoxicated driving incident or driv- paragraph (b) (2) through (4) of this sec- ing in violation of a previously im- tion, driving privileges shall be sus- posed suspension. pended for 2-years. Such period shall be (iii) Exceptions granted under this in addition to any suspension paragraph shall be reported in writing perviously imposed. Military personnel to the next official in the chain of com- shall be prohibited from obtaining or mand. using a U.S. Government Motor Vehi- (7) Overseas commanders with au- cle Operator’s Indentification Card, thority to issue driver’s licenses shall Standard Form (SF) 46, for 6 months establish procedures for suspension of for each such incident. A determina- such licenses for intoxicated driving. tion whether DoD civilian personnel Such procedures, insofar as the com- should be prohibited from obtaining or manders deem practicable, shall be using an SE 46 shall be made under similar to the procedures for suspen- Federal Personnel Manual chapter 930 sion of installation driving privileges and other laws and regulations applica- prescribed in paragraph (b) (1) through ble to civilian personnel. Nothing in (6) of this section. this paragraph precludes an installa- (8) Persons whose installation driving tion commander from imposing a pro- privileges are suspended for 1 year or

227 § 62b.4 32 CFR Ch. I (7–1–97 Edition) more under § 62b.4(b) (2), (3), or (4), the BAC level, if known. Exceptions above, shall complete an alcohol or shall be made only when such a suspen- drug safety action program or equiva- sion was increased for an additional 2 lent alcohol education course (mini- years for driving on an installation mum of 8 hours) before their installa- while installation driving privileges tion driving privileges may be rein- were suspended solely on the basis of stated. driving in violation of suspension (see (c) Screening. Each DoD Component paragraph (b)(5) of this section). This or its supporting agency shall establish notification shall be sent to the State procedures for screening military per- in which the driver’s license was issued sonnel charged with intoxicated driv- and the State in which the installation ing offenses within 7 working days of is located. Sample letter format is pro- issuance of notice of the preliminary vided in appendix 1, and State driver’s suspension to determine whether a license agencies are listed in Appendix member is dependent on alcohol or 2. DoD Components shall establish a other drugs. The results of this screen- system to exchange intoxicated driving ing shall be made available to the com- and driving privilege suspension data mand having jurisdiction over the case when DoD personnel transfer from one before adjudication. Information con- location to another to ensure that the cerning personal alcohol and drug receiving installation continues any abuse provided by a member in re- remaining portion of the suspension. sponse to screening questions may not This information requirement is ex- be used against the member in a court- empt from formal approval and licens- martial or on the issue of characteriza- ing. tion in an administrative separation (e) The Military Services shall in- proceeding. Nothing in this provision clude the intoxicated driving preven- precludes introduction of such evidence tion program as an inspection item of for other administrative purposes or special interest for Inspector General for impeachment or rebuttal purposes or administrative inspections. in any proceeding in which evidence of (f) The Military Services shall direct alcohol or drug abuse (or lack thereof) installation commanders to assess the first has been introduced by the mem- availability of drug and alcohol in the ber, nor does it preclude disciplinary or vicinity of military installations other action based on independently through their Armed Forces Discipli- derived evidence. DoD civilian person- nary Control Boards or Control Boards nel charged with intoxicated driving of other appropriate Federal agencies. shall be advised of the Civilian Em- Whenever the availability of alcohol or ployee Assistance Program or Installa- drugs, or both, at an establishment off- tion Drug and Alcohol Program and base presents a threat to the discipline, the availability of evaluation in ac- health, and welfare of DoD personnel, cordance with Federal Personnel Man- such establishments shall be dealt with ual Supplement 792–2. Retired members as prescribed in the ‘‘Armed Forces of the Military Services shall be ad- Disciplinary Control Board and Off-In- vised of the availability of evaluation stallation Military Enforcement Guid- and treatment programs. ance’’ (Army Regulation No. 190–24, (d) Notification of State Driver’s License Marine Corps Order No. 162.2A, Agencies. Each DoD Component or its BUPERS Inst. 1620.4A, Air Force Regu- supporting agency shall establish a lation No. 125.11, Commandant Instruc- systematic procedure in accordance tion No. 1620.13). with part 286a of this title to notify (g) Cases Involving Death or Serious In- State driver’s license agencies of DoD jury. (1) To the extent permitted by law personnel whose installation driving and consistent with the Uniform Code privileges are suspended for 1 year or of Military Justice (UCMJ) and the more following final adjudication of ‘‘Manual for Courts-Martial’’ and in ac- the intoxicated driving offense or upon cordance with trial counsel’s judge- suspension for refusal to submit to a ment of appropriate tactical and ethi- lawful BAC test under paragraph (b) of cal concerns, consideration shall be this section. This notification shall in- given to presenting a victim’s impact clude the basis for the suspension and statement (oral or written statement

228 Office of the Secretary of Defense § 62b.5 by victims or survivors) before sentenc- (i) BAC of drivers in three cat- ing in cases involving intoxicated driv- egories—.01–.04, .05–.09, and .10 and ing. above. (2) Trial counsel are encouraged to (ii) Time of day and day of the week make reasonable efforts to ensure that the mishap or injury occurred. the victim or the victim’s family is (iii) Type of vehicle (include MOPEDs provided information about the with motorcycle data). progress and disposition of cases proc- (iv) Death and injury data on DoD essed under the UCMJ. personnel killed or injured as a result (h) DoD Components with field in- of intoxicated driving, include those stallations shall establish an awards who were not intoxicated themselves and recognition program to recognize but were involved in a mishap as a re- successful local installation intoxi- sult of intoxicated driving by another cated driving prevention programs. party. (i) Each DoD Component or its sup- (v) Government property damage porting agency is encouraged to use, as cost. guidance, ‘‘Report on a National Study (vi) Cost of treatment of injured DoD of Preliminary Breath Test (PBT) and personnel. Illegal Per Se Laws’’ and ‘‘Interim Re- (vii) Pertinent data on military per- port to the Nation by the Presidential sonnel separated or retired as a result Commission on Drunk Driving.’’ of injury or other action taken because of: § 62b.5 Responsibilities. (A) Intoxicated driving by the person (a) The Assistant Secretary of Defense being separated or retired; or (Health Affairs) (ASD(HA)) shall: (B) Intoxicated driving by another (1) Develop a coordinated approach to person. the reduction of intoxicated driving, (viii) Other chemical substances consistent with this part, recognizing causing intoxicated driving that con- that intoxicated driving prevention tributed to an accident. programs shall be designed to meet (3) Provide an annual report to the local needs. Secretary of Defense that assesses the impact of intoxicated driving on the (2) Appoint the chair of the DIDPTF. Department of Defense. The report (3) Monitor Military Service and DoD shall include intoxicated driving ar- Component regulations that imple- rest, apprehension, and conviction data ment the DoD Intoxicated Driving Pre- as well as the number of exceptions vention Program. granted to the mandatory suspension (4) Act as focal point for the Depart- of driving privileges under paragraph ment of Defense for interagency and (b)(6) of this section. nongovernmental coordination of na- (4) Establish procedures (when fea- tional intoxicated driving prevention sible) under which DoD personnel con- programs. victed for driving while intoxicated (5) Evaluate and report biennially to will pay administrative restitution to the Secretary of Defense on the effec- the government for property damage or tiveness and efficiency of the DoD In- medical expenses to the extent per- toxicated Driving Prevention Program. mitted by applicable law. (b) The Assistant Secretary of Defense (5) Amend appropriate DoD issuances (Manpower, Reserve Affairs, and Logis- to include the use of a preliminary or tics) (ASD(MRA&L)) shall: prearrest breath test (PBT) to be used (1) Ensure the DoD Department by law enforcement personnel to indi- Schools system and section VI schools cate impairment when the arresting of- include specific material in the cur- ficer has reason to believe the operator riculum (grades 7 through 12) on the ef- of a motor vehicle may be intoxicated. fects that alcohol and drugs have on (See ‘‘Report on a National Study of the impairment of driving skills. Preliminary Breath Test (PBT) and Il- (2) Ensure that intoxicated driving, legal Per Se Laws’’). accident, mishap, and injury data in- (c) The Head of each DoD Component clude: or its Supporting Agency shall establish

229 § 62b.6 32 CFR Ch. I (7–1–97 Edition) and operate intoxicated driving preven- (d) DoD personnel—(1) Civilian person- tion programs prescribed by this part. nel. Employees of the Department of Defense whose salary or wages are paid § 62b.6 DoD intoxicated driving pre- from appropriated or nonappropriated vention task force. funds. (a) Organization and management. (1) (2) Military personnel. All U.S. mili- The DIDPTF shall be chaired by a rep- tary personnel on active duty, U.S. resentative of the Deputy Assistant military reserve or National Guard per- Secretary of Defense (Health Pro- sonnel on active duty, and Military motion), Office of the ASD(HA). Service academy cadets. (2) The DIDPTF shall consist of rep- (e) Driving privileges. Operation of a resentatives of the Military Services’ privately owned motor vehicle on an drug and alcohol programs and law en- installation or in areas where traffic forcement communities and a rep- operations are under military super- resentative of the Deputy Assistant vision. Secretary of Defense (Equal Oppor- (f) Intoxicated driving. Includes one or tunity and Safety Policy), Office of the more of the following: ASD(MRA&L). (1) Operating a motor vehicle under (3) Meetings generally shall be held any intoxication caused by alcohol or bimonthly; however, special sessions drugs in violation of Article 111 of the may be required by the chair. UCMJ (see paragraphs 190 and 191 of (b) Functions. The DIDPTF shall: the ‘‘Manual for Courts-Martial’’ or a (1) Monitor Military Service and DoD similar law of the jurisdiction in which Component policy as it applies to the the vehicle is being operated. prevention of intoxicated driving. (2) Operating a motor vehicle with a (2) Review programs and policy de- BAC of .10 or higher on a military in- veloped by other Federal and State stallation or in an area where traffic agencies and make recommendations operations are under military super- of suitable adaptation within the De- vision. partment of Defense. (3) Operating a motor vehicle with a (3) Make recommendations to the BAC of .10 or higher in violation of the ASD(HA) and the ASD(MRA&L) on law of the jurisdiction in which the ve- matters pertaining to intoxicated driv- hicle is being operated. ing. (4) Operating a motor vehicle with a BAC of .05 but less than .10 in violation § 62b.7 Definitions. of the law of the jurisdiction in which (a) Blood Alcohol Content (BAC). The the vehicle is being operated if the ju- percentage, by weight, of alcohol in a risdiction imposes a suspension or rev- person’s blood as determined by blood, ocation solely on the basis of the BAC urine, or breath analysis. Percent of level. weight by volume of alcohol in the (g) Supporting agency. The agency blood is based on grams of alcohol per that accepts the responsibility and per- 100 milliliters of blood. forms the actions necessary to accom- (b) Conviction. An official determina- plish any of the requirements of this tion or finding as authorized by State part (for example, one of the Military or Federal law or regulation, including Services supporting a Defense Agency a final conviction by a court or court- through installation vehicle registra- martial (whether based on a plea of tion, screening of intoxicated drivers, guilty or a finding of guilty and regard- or supervisor education). less of whether the penalty is rebated, APPENDIX 1 TO PART 62b—DRIVER’S deferred, suspended, or probated), an LICENSE INFORMATION (SAMPLE LETTER) unvacated forfeiture of bail or other collateral deposited to secure a defend- FROM: ant’s appearance in court, a plea of ———————————————————————— nolo contendere accepted by a court, or ———————————————————————— ———————————————————————— a payment of a fine. TO: Department of Vehicle Registration Li- (c) DoD issuances. DoD Directives, In- censes structions, publications and changes ———————————————————————— thereto. ————————————————————————

230 Office of the Secretary of Defense Pt. 62b, App. 2

———————————————————————— CALIFORNIA SUBJECT: Notification of Person Convicted Information Services, Department of Motor of an Intoxicated Driving Offense. Vehicles, P.O. Box 11231, Sacramento, Cali- This letter is your notification that on fornia 95813 ———————, ———————————————— (date) COLORADO ———————————————————————— Motor Vehicle Division, Master File Section (last name, first name, middle initial 44–489, 140 W. 6th Avenue, Denver, Colorado ———————————————————————— 80204, (303) 866–3751 and social security number of person) a member of CONNECTICUT ———————————————————————— Assistant Division Chief, 60 State Street, (branch of Military Service or DoD Compo- Wethersfield, Connecticut 06109, (203) 566– nent) 3230 ———————————————————————— (and unit) DELAWARE ———————————————————————— Senior Clerk, Revocation Section, P.O. Box (installation location) 698, Dover, Delaware 19901, (302) 736–4427 was found guilty of (intoxicated driving or refusal to take a blood alcohol content (BAC) FLORIDA test in a court-martial, non-judicial proceed- Division of Drivers Licenses & Motor Vehi- ing under Article 15 of the UCMJ, or civil cles, Department of Highway Safety, court). (If civil court, give court name and Kirkman Building, Tallahassee, Florida case number.) (He or she ) holds a lllll 32301, (904) 488–2117 (State) driver’s license, number lllll, issued lllll, expiring on lllll. (He or GEORGIA she) was arrested ———————————————————————— Drivers Support Division, Department of (date and base location) Public Safety, P.O. Box 1456, Atlanta, by lllll (State) (or military) police Georgia 30371–2303, (404) 656–5704 while driving vehicle license number HAWAII lllll. A BAC test (was or was not) taken (with a reading of lllll). Based on the Administrator, District Court, 1111 Alakea above information, this individual’s installa- Street, Honolulu, Hawaii 96813, (808) 548– tion driving privileges have been suspended 2467 for ll (insert number of years). The individual’s current address is: IDAHO ———————————————————————— Idaho Transportation Department, Driver ———————————————————————— Services, P.O. Box 34, Boise, Idaho 83731, ———————————————————————— (208) 334–2534

APPENDIX 2 TO PART 62b—STATE ILLINOIS DRIVER’S LICENSE AGENCIES Abstract Informational Unit, Motor Vehicle ALABAMA Services, 2701 S. Dirksen Parkway, Spring- field, Illinois 62703, (217) 782–2720 Data Processing Unit, Driver’s Licensing Di- vision, Department of Public Safety, Mont- INDIANA gomery, Alabama 36192, (205) 832–5100 Bureau of Motor Vehicles, Paid Mail Divi- ALASKA sion, State Office Building, room 416, Indi- anapolis, Indiana 46204, (317) 232–2894 MVR Desk, Motor Vehicles, Pouch N, Ju- neau, Alaska 99811, (907) 465–4361 IOWA

ARIZONA Chief Teletype Operator, Lucas State Office Building, Des Moines, Iowa 50319, (515) 281– Phoenix City Magistrates Court (No street 5559 number required), Phoenix, Arizona 85001, (602) 262–4001 KANSAS

ARKANSAS Chief, Driver Control Bureau, State Office Building, Topeka, Kansas 66626, (913) 296– Driver’s Control, P.O. Box 1272, Little Rock, 3671 Arkansas 72203, (501) 371–1631

231 Pt. 62b, App. 2 32 CFR Ch. I (7–1–97 Edition)

KENTUCKY NEW JERSEY Division of Driver Licensing, Justice Cabi- Supervisor, Abstract Section, Dept. of Motor net, room 220, State Office Building, Vehicles, 137 E. State Street, Trenton, New Frankfort, Kentucky 40601, (502) 564–6800 Jersey 08625, (609) 292–4558

LOUISIANA NEW MEXICO Department of Public Safety, Office of Motor Chief, Motor Transportation Department, Vehicles, P.O. Box 64886, Baton Rouge, Manuel Lujan Building, Santa Fe, New Louisiana 70896 Mexico 87503, (505) 827–2362

MAINE NEW YORK Driver Record Section, Motor Vehicle Divi- New York State Dept. of Motor Vehicles, sion, Statehouse Station #29, Augusta, Public Service Bureau, Empire State Maine 04333, (207) 289–2733 Plaza, Albany, New York 12228, (518) 474– 0705 MARYLAND Director, Driver Records, 6601 Ritchie High- NORTH CAROLINA way, NE, Glen Burnie, Maryland 21062, (301) Director, Driver License Section, Division of 768–7225 Motor Vehicles, 1100 New Bern Avenue, Ra- leigh, North Carolina 27697, (919) 733–9906 MASSACHUSETTS Registry Motor Vehicles, 100 Nashua Street, NORTH DAKOTA Boston, Massachusetts 02114 Driving Records, Drivers License Division, 600 E. Boulevard, Bismarck, North Dakota MICHIGAN 58505, (701) 224–2603 Commercial Lookup Unit, Michigan Depart- ment of State, Bureau of Driver & Vehicle OHIO Services, Lansing, Michigan 48918 Bureau of Motor Vehicles, Attn.: MVOSPA, P.O. Box 16520, Columbus, Ohio 43216 MINNESOTA Driver License Division, 108 Transportation OKLAHOMA Building, St. Paul, Minnesota 55155, (612) Oklahoma Department of Public Safety, 296–2023 Driver Improvement Division, Box 11415, Oklahoma City, Oklahoma 73136, (405) 427– MISSISSIPPI 6541 Mississippi Highway Patrol, MVR Section, P.O. Box 958, Jackson, Mississippi 39205, OREGON (601) 982–1212, Ext. 268 Supervisor, Files and Correspondence DMV, 1905 Lana Avenue, NE, Salem, Oregon MISSOURI 97314, (503) 371–2225 Division of Motor Vehicles & Driver Licens- ing, P.O. Box 629, Jefferson City, Missouri PENNSYLVANIA 65105, (No telephone inquiries) Division Manager, Citation Processing Divi- sion, room 302, Bureau of Traffic Safety MONTANA Operations, Department of Transportation, Office Manager, Driver Services, 303 North Harrisburg, Pennsylvania 17120 Roberts, Helena, Montana 59620, (406) 449– 3000 RHODE ISLAND Department of Motor Vehicles, State Office NEBRASKA Building, Providence, Rhode Island 02903, Administrator, P.O. Box 94789, Lincoln, Ne- (401) 277–2994 braska 68509, (402) 471–3888 SOUTH CAROLINA NEVADA Motor Vehicle Administrator, P.O. Box 1498, Driver Record Section, 555 Wright Way, Car- Columbia, South Carolina 29216, (803) 758– son City, Nevada 89701, (702) 885–5505 8428

NEW HAMPSHIRE SOUTH DAKOTA Department of Public Safety, Division of Driver Improvement Program, 118 W. Cap- Motor Vehicles, Hazen Drive, Concord, New itol, Pierre, South Dakota 57501–2080, (605) Hampshire 03105, (603) 271–2486 773–4128

232 Office of the Secretary of Defense § 63.3

TENNESSEE PUERTO RICO Financial Responsibility Section, P.O. Box Mr. Jose A. Zayas-Berdecia, Director, Bu- 945, Nashville, Tennessee 37202, (615) 741– reau of Motor Vehicles, P.O. Box 41243, 3954 Santurce, Puerto Rico 00940

TEXAS VIRGIN ISLANDS (Does not participate in the National Driver Director, Motor Vehicle Division, 40th and Register) Jackson Avenue, Austin, Texas 78779, (512) 465–7611 PART 63—FORMER SPOUSE UTAH PAYMENTS FROM RETIRED PAY Chief, Drivers License Bureau, 317 State Of- fice Building, Salt Lake City, Utah 84114, Sec. (801) 965–4411 63.1 Purpose. 63.2 Applicability and scope. VERMONT 63.3 Definitions. 63.4 Policy. Director of Law Administration, Department 63.5 Responsibilities. of Motor Vehicles, 120 State Street, Mont- 63.6 Procedures. pelier, Vermont 05603, (Mail inquiries only) AUTHORITY: 10 U.S.C. 1408.

VIRGINIA SOURCE: 50 FR 2667, Jan. 18, 1985, unless Division of Motor Vehicles, Attn: Driver’s otherwise noted. Licensing and Information Department, 2300 W. Broad Street, Richmond, Virginia § 63.1 Purpose. 23269, (804) 257–0410 Under 10 U.S.C. 1408, this part establishes policy and authorizes direct pay- WASHINGTON ments to a former spouse of a member Department of Licensing, Driver Services Di- from retired pay in response to court- vision, Highway Licensing Building, Olym- ordered alimony, child support, or divi- pia, Washington 98504, (206) 753–6976 sion of property.

WEST VIRGINIA § 63.2 Applicability and scope. Department of Motor Vehicles, 1800 Washing- (a) This part applies to the Office of ton Street, East, Charleston, West Virginia the Secretary of Defense, the Military 25317, (304) 348–0238 Departments, the Coast Guard (under agreement with the Department of WISCONSIN Transportation), the Public Health Driver Record File, Department of Transpor- Service (PHS) (under agreement with tation, P.O. Box 7918, Madison, Wisconsin the Department of Health and Human 53707–7918, (608) 266–2360 Services); and the National Oceanic and Atmospheric Administration WYOMING (NOAA) (under agreement with the De- Criminal Identification Division, Boyd partment of Commerce). The term Building, Cheyenne, Wyoming 82002 ‘‘Uniformed Services,’’ as used herein, NDR refers to the Army, Navy, Air Force, Marine Corps, Coast Guard, commis- National Driver Register, room 5117, NHTSA, sioned corps of the PHS, and the com- 400 7th Street SW, Washington, DC 20509 missioned corps of the NOAA. (b) This part covers members retired DISTRICT OF COLUMBIA from the active and reserve compo- District of Columbia Department of Trans- nents of the Uniformed Services who portation, Bureau of Motor Vehicles Serv- are subject to court orders awarding al- ices, 301 C Street NW, Washington, DC imony, child support, or division of 20001 property. GUAM § 63.3 Definitions. Mr. Patrick Wolfe, Deputy Director, Revenue (a) Alimony. Periodic payments for and Taxation, Government of Guam, the support and maintenance of a Agana, Guam 96910 spouse or former spouse in accordance

233 § 63.3 32 CFR Ch. I (7–1–97 Edition) with State law under 42 U.S.C. 662(c). It (g) Designated agent. A representative includes, but is not limited to, spousal of a Uniformed Service who will re- support, separate maintenance, and ceive and process court orders under maintenance. Alimony does not include this part. any payment for the division of prop- (h) Division of property. Any transfer erty. of property or its value by an individ- (b) Annuitant. A person receiving a ual to his or her former spouse in com- monthly payment under a survivor pliance with any community property benefit plan related to retired pay. settlement, equitable distribution of (c) Child support. Periodic payments property, or other distribution of prop- for the support and maintenance of a erty between spouses or former child or children, subject to and in ac- spouses. cordance with State law under 42 (i) Entitlement. The legal right of a U.S.C. 662(b). It includes, but is not member to receive retired pay. limited to, payments to provide for (j) Final decree. As defined under 10 health care, education, recreation, and U.S.C. 1408(a)(3), a decree from which clothing or to meet other specific no appeal may be taken or from which needs of such a child or children. no appeal has been taken within the (d) Court. Any court of competent ju- time allowed for taking such appeals risdiction of any State, the District of under the laws applicable to such ap- Columbia, the Commonwealth of Puer- peals or a decree from which timely ap- to Rico, Guam, American Samoa, the peal has been taken and such appeal Virgin Islands, the Northern Mariana has been finally decided under the laws Islands, and the Trust Territory of the applicable to such appeals. Pacific Islands and any court of the (k) Former spouse. The former hus- United States as defined in 28 U.S.C. band or former wife, or the husband or 451 having competent jurisdiction; or wife, of a member. any court of competent jurisdiction of (l) Garnishment. The legal procedure a foreign country with which the Unit- through which payment is made from ed States has an agreement requiring an individual’s pay that is due or pay- the United States to honor any court able to another party in order to sat- order of such country. isfy a legal obligation to provide child (e) Court Order. As defined under 10 support, to make alimony payments, or U.S.C. 1408(a)(2), a final decree of di- both, under 5 CFR part 581 and 42 vorce, dissolution, annulment, or legal U.S.C. 659 or to enforce a division of separation issued by a court, or a court property other than a division of re- ordered, ratified, or approved property tired pay as property under 10 U.S.C. settlement incident to such a decree. It 1408(d)(5). includes a final decree modifying the (m) Member. A person originally ap- terms of a previously issued decree of pointed or enlisted in, or conscripted divorce, dissolution, annulment, or into, a Uniformed Service who has re- legal separation, or a court ordered, tired from the regular or reserve com- ratified, or approved property settle- ponent of the Uniformed Service con- ment incident to such previously is- cerned. sued decree. The court order must pro- (n) Renounced pay. Retired pay to vide for the payment to a member’s which a member has an entitlement, former spouse of alimony, child sup- but for which receipt of payment has port, or a division of property. In the been waived by the member. case of a division of property, the court (o) Retired pay. The gross entitlement order must specify that the payment is due a member based on conditions of to be made from the member’s dispos- the retirement law, pay grade, years of able retired pay. service for basic pay, years of service (f) Creditable service. Service counted for percentage multiplier, if applicable, towards the establishment of any enti- and date of retirement (transfer to the tlement for retired pay. See paragraphs Fleet Reserve or Fleet Marine Corps 10102 through 10108 of DoD 1340.12–M, 42 Reserve); also known as retainer pay. U.S.C. 212 for the PHS, and 33 U.S.C. [50 FR 2667, Jan. 18, 1985, as amended at 52 864 and 10 U.S.C. 6323 for NOAA. FR 25215, July 6, 1987]

234 Office of the Secretary of Defense § 63.6

§ 63.4 Policy. that provides for payment of child sup- It is the policy of the Uniformed port, alimony, or division of property. Services to honor a former spouse’s re- (iii) A statement that the court order quest for direct payment from a given has not been amended, superseded, or member’s retired pay in enforcement of set aside. a court order that provides for a ali- (iv) Sufficient identifying informa- mony, child support, or division of tion about the member to enable proc- property, when the terms, conditions, essing of the application. The identi- and requirements in this part are satis- fication should give the member’s full fied. name, social security number, and Uni- formed Service. § 63.5 Responsibilities. (v) The full name, address, and social (a) The Assistant Secretary of De- security number of the former spouse. fense (Comptroller) shall establish pol- (vi) Before payment, the former icy and procedures, provide guidance, spouse shall agree personally that any coordinate changes with the Uniformed future overpayments are recoverable Services, and monitor the implementa- and subject to involuntary collection tion of this part within the Depart- from the former spouse or his or her es- ment of Defense. tate. (b) The Secretaries of the Military (vii) As a condition precedent to pay- Departments and Heads of the other ment, the former spouse shall agree Uniformed Services shall implement personally to notify the designated this part. agent promptly if the operative court § 63.6 Procedures. order upon which payment is based is vacated, modified, or set aside. This (a) Eligibility of former spouse. (1) A shall include notice of the former former spouse of a member is eligible spouse’s remarriage if all or a part of to receive direct payment from the re- the payment is for alimony or notice of tired pay of that member only pursuant to a court order that satisfies the a change in eligibility for child support requirements and conditions specified payments under circumstances of the in this part. In the case of a division of death, emancipation, adoption, or at- property, the court order must specifi- tainment of majority of a child whose cally provide that payment is to be support is provided through direct pay- made from disposable retired pay. ment to a former spouse from retired (2) For establishing eligibility for di- pay. rect payment under a court order that (2) If the court order is for a division provides for a division of retired pay as of retired pay as property and it does property, a former spouse must have not state that the former spouse satis- been married to the member for 10 fied the eligibility criteria found in years or more, during which the mem- paragraph (a)(2) of this section, the ber performed 10 years or more of cred- former spouse shall furnish sufficient itable service. There is no 10-year mar- evidence for the designated agent to riage requirement for payment of child verify that the requirement was met. support, alimony, or both. (3) The notification of the designated (b) Application by former spouse. (1) A agent shall be accomplished by cer- former spouse shall deliver to the des- tified or registered mail, return receipt ignated agent of the member’s Uni- requested, or by personal service. Ef- formed Service a signed DD Form 2293, fective service is not accomplished Request for Former Spouse Payments until a complete application providing from Retired Pay, or a signed state- all information required by this part is ment that includes: (i) Notice to make direct payment to received in the office of the designated the former spouse from the member’s agent, who shall note the date and retired pay. time of receipt on the notification doc- (ii) A copy of the court order and ument. other accompanying documents cer- (4) Not later than 90 days after effec- tified by an official of the issuing court tive service, the designated agent shall

235 § 63.6 32 CFR Ch. I (7–1–97 Edition) respond to the former spouse as fol- be authenticated or certified within 90 lows: (i) If the court order will be hon- days immediately preceding its service ored, the former spouse shall be in- on the designated agent. formed of the date that payments ten- (3) The court order must be a final tatively begin; the amount of each pay- decree. ment; the amount of gross retired pay, (4) If the court order was issued while total deductions, and disposable retired the member was on active duty and the pay (except in cases where full pay- member was not represented in court, ment of a court-ordered fixed amount the court order or other court docu- will be made); and other relevant infor- ments must certify that the rights of mation if applicable: or (ii) If the court the member under the ‘‘Soldiers’ and order will not be honored, the des- Sailors’ Civil Relief Act of 1940’’ (50 ignated agent shall explain in writing U.S.C. Appendix 501–591) were complied to the former spouse why the court with. order was not honored. (5) Sufficient information must be (5) The designated agent for each contained in the court order to identify Uniformed Service is: the member. (i) Army: Commander, Army Finance (6) For court orders that provide for and Accounting Center, Attn: FINCL– the division of retired pay as property, G, Indianapolis, IN 46249–0160, (317) 542– the following conditions apply: 2155. (ii) Navy: Director, Navy Family Al- (i) The court must have jurisdiction lowance Activity, Anthony J. over the member by reason of (A) the Celebrezze Federal Building, Cleveland, member’s residence, other than be- OH 44199–2087, (216) 522–5301. cause of military assignment in the (iii) Air Force: Commander, Air territorial jurisdiction of the court; (B) Force Accounting and Finance Center, the member’s domicle in the territorial ATTN: JAL, Denver, CO 80279–5000, jurisdiction of the court; or (C) the (303) 370–7524. member’s consent to the jurisdiction of (iv) Marine Corps: Commanding Offi- the court. cer, Marine Corps Finance Center (ii) The treatment of retired pay as (Code AA), Kansas City, MO 64197–0001, property solely of the member or as (816) 926–7103. property of the member and the former (v) U.S. Coast Guard, Commanding spouse of that member must be in ac- Officer (L), Pay and Personnel Center, cordance with the law of the jurisdic- 444 Quincy Street, Topeka, Kansas tion of such court. 66683–3591; (913) 295–2516. (iii) The court order or other accom- (vi) Office of General Counsel, De- panying documents served with the partment of Health and Human Serv- court order must show the former ices, room 5362, 330 Independence Ave- spouse was married to the member 10 nue SW., Washington, DC 20201, (202) years or more, during which the mem- 475–0153. ber performed at least 10 years of cred- (vii) U.S. Coast Guard, Commanding itable service. Officer (L), Pay and Personnel Center, (7) Court orders awarding a division 444 Quincy Street, Topeka, Kansas of retired pay as property that were is- 66683–3591; (913) 295–2516. sued before June 26, 1981, shall be hon- (6) U.S. Attorneys are not designated ored if they otherwise satisfy the re- agents authorized to receive court or- quirements and conditions specified in ders or garnishments under this part. this part. A modification on or after (c) Review of Court Orders. (1) The June 26, 1981, of a court order that court order must be regular on its face, originally awarded a division of retired meaning that it is issued by a court of pay as property before June 26, 1981, competent jurisdiction in accordance may be honored for subsequent court- with the laws of the jurisdiction. ordered changes made for clarification, (2) The court order must be legal in such as the interpretation of a com- form and must include nothing on its putation formula in the original court face that provides reasonable notice order. For court orders issued before that it is issued without authority of June 26, 1981, subsequent amendments law. It is required that the court order after that date to provide for a division

236 Office of the Secretary of Defense § 63.6 of retired pay as property are unen- nishments paid under this part and forceable under this part. If the court garnishments under 42 U.S.C. 659. order awarding a division of retired pay (2) Disposable retired pay is the gross as property is issued on or after June pay entitlement, including renounced 26, 1981, subsequent modifications of pay, less authorized deductions. Dis- that court order shall be honored if posable retired pay does not include they otherwise satisfy the require- annuitant payments under 10 U.S.C. ments and conditions specified in this chapter 73. For court orders issued on part. or before November 14, 1986 (or amend- (8) In the case of a division of prop- ments thereto), disposable retired does erty, the court order must provide spe- not include retired pay of a member re- cifically for payment of a fixed amount tired for disability under 10 U.S.C. expressed in U.S. dollars or payment as chapter 61. The authorized deductions a percentage or fraction of disposable are: retired pay. Court orders specifying a (i) Amounts owed to the United percentage or fraction of retired pay States. shall be construed as a percentage or (ii) Fines and forfeitures ordered by a fraction of disposable retired pay. A court-martial. court order that provides for a division (iii) Amounts waived in order to re- of retired pay by means of a formula ceive compensation under title 5 or 38 wherein the elements of the formula of the U.S. Code. are not specifically set forth or readily (iv) Federal employment taxes and apparent on the face of the court order income taxes withheld to the extent will not be honored unless clarified by that the amount deducted is consistent the court. with the member’s tax liability, in- (d) Garnishment Orders. (1) If a court cluding amounts for supplemental order provides for the division of prop- withholding under 26 U.S.C. 3402(i), when the member presents evidence to erty other than retired pay in addition the satisfaction of the designated agent to an amount of disposable retired pay that supports such withholding. State to be paid to the member’s former employment taxes and income taxes spouse, the former spouse may garnish when the member makes a voluntary that member’s retired pay in order to request for such withholding from re- enforce the division of property. The tired pay and the Uniformed Services limitations of 15 U.S.C. 1673(a) and the have entered into an agreement with limitations of § 63.6(e) of this part apply the State concerned for withholding in determining the amount payable to from retired pay. a former spouse. (v) Premiums paid as a result of a (2) The designated agents authorized election under 10 U.S.C. chapter 73 to to receive service of process of garnish- provide an annuity to a spouse or ment orders under this part shall be former spouse to whom payment of a those listed in § 63.6(b)(5) of this part. portion of such member’s retired pay is (3) Garnishment orders under this being made pursuant to a court order part for enforcement of a division of under this part. property other than retired pay shall (vi) The amount of retired pay of the be processed in accordance with 5 CFR member under 10 U.S.C. chapter 61 part 581 to the extent that the proce- computed using the percentage of the dures are consistent with this part. member’s disability on the date, when (e) Limitations. (1) Upon proper serv- the member was retired (or the date on ice, a member’s retired pay may be which the member’s name was placed paid directly to a former spouse in the on the temporary disability retirement amount necessary to comply with the list), for court orders issued after No- court order, provided the total amount vember 14, 1986. paid does not exceed: (vii) Other amounts required by law (i) 50 percent of the disposable retired to be deducted. pay for all court orders and garnish- (f) Notification of Member. (1) As soon ment actions paid under this part. as possible, but not later than 30 cal- (ii) 65 percent of the disposable re- endar days after effective service of a tired pay for all court orders and gar- court order or garnishment action

237 § 63.6 32 CFR Ch. I (7–1–97 Edition) under this part, the designated agent cause of, any disclosure of information shall send written notice to the af- made by him or her in carrying out any fected member at his or her last known of the duties that directly or indirectly address. pertain to answering such interrog- (2) This notice shall include: atories. (i) A copy of the court order and ac- (3) If a court order on its face appears companying documentation. to conform to the laws of the jurisdic- (ii) An explanation of the limitations tion from which it was issued, the des- placed on the direct payment to a ignated agent will not be required to former spouse from a member’s retired ascertain whether the court has ob- pay. tained personal jurisdiction over the (iii) A request that the member sub- member. mit notification to the designated (4) Whenever a designated agent is ef- agent if the court order has been fectively served with interrogatories amended, superseded, or set aside. The concerning implementation of this member is obligated to provide an au- part, the designated agent shall re- thenticated or certified copy of the op- spond to such interrogatories within 30 erative court documents when there calendar days of receipt or within such are conflicting court orders. longer period as may be prescribed by (iv) The amount or percentage that applicable State law. will be deducted if the member fails to (h) Payments. (1) Subject to a mem- respond to the notification as pre- ber’s eligibility for retired pay, effec- scribed by this part. tive service of a court order, and the (v) The effective date that direct pay- limitations and requirements of this ments to the former spouse tentatively part, the Uniformed Service concerned will begin. shall begin payments to the former (vi) Notice that the member’s failure spouse not later than 90 days after the to respond within 30 days from the date date of effective service. that the notice is mailed may result in (2) Payments shall conform with the the payment of retired pay as provided normal pay and disbursement cycle for in the notification. retired pay. Payments may be ex- (vii) That if the member submits in- pressed as fixed in amount or as a per- formation in response to this notifica- centage or fraction of disposable re- tion, the member thereby consents to tired pay. With regard to payments the disclosure of such information to based on a percentage or fraction of the former spouse or the former disposable retired pay, the amount will spouse’s agent. change in direct proportion and at the (3) If the member responds to the no- effective date of future cost-of-living tification, the designated agent shall adjustments that are authorized, un- consider the response and will not less the court order directs otherwise. honor the court order whenever it is (3) Payments terminate on the date shown that the court order is defective, of the death of the member, death of or the court order is modified, super- the former spouse, or as stated in the seded, or set aside. applicable court order, whichever oc- (g) Designated agent liability. (1) The curs first. Payments shall be termi- United States and any officer or em- nated or shall be reduced upon the oc- ployee of the United States will not be currence of a condition that requires liable with respect to any payment termination or reduction under appli- made from retired pay to any member cable State law. or former spouse pursuant to a court (4) When several court orders are order that is regular on its face if such served with regard to a member’s repayment is made in accordance with tired pay, payment shall be satisfied on this part. a first-come, first-served basis within (2) An officer or employee of the the amount limitations prescribed in United States, who under this part has paragraph (e) of this section. the duty to respond to interrogatories, (5) If conflicting court orders are will not be subject under any law to served on the designated agent that di- any disciplinary action or civil or rect that different amounts be paid criminal liability or penalty for, or be- during a month to the same former

238 Office of the Secretary of Defense § 63.6 spouse from a given member’s retired (9) The order of precedence for dis- pay, the designated agent shall author- bursement of retired pay when the ize payment on the court order direct- gross amount is not sufficient to per- ing payment of the least amount. The mit all authorized deductions and col- difference in amounts on conflicting lections shall follow volume I, part 3, court orders shall be retained by the section 7040, ‘‘Order of Payment,’’ in designated agent pending resolution by the Treasury Fiscal Requirements the court that has jurisdiction or by Manual for Guidance of Departments agreement of the parties. The amount and Agencies. Court-ordered payments retained shall be paid as provided in a to a former spouse from retired pay subsequent court order or agreement. shall be enforced over voluntary deduc- The total of all payments plus all mon- tions and allotments. eys retained under this paragraph shall be within the limitation prescribed in (10) Payments made shall be prospec- paragraph (e) of this section. tive in terms of the amount stated in (6) The designated agent shall comply the court order. Arrearages will not be with a stay of execution issued by a considered in determining the amount court of competent jurisdiction and payable from retired pay. shall suspend payment of disputed (11) No right, title, or interest that amounts pending resolution of the can be sold, assigned, transferred, or issue. otherwise disposed of, including by in- (7) When service is made and the heritance, is created under this part. identified member is found not to be (12) At the request of the designated currently entitled to payments the des- agent, the former spouse may be re- ignated agent shall advise the former quired to provide a certification of eli- spouse that no payments are due from gibility that attests in writing to the or payable by the Uniformed Service to former spouse’s continued eligibility the named individual. If the member is and that includes a notice of change in on active duty when service is accom- status or circumstances that affect eli- plished, the designated agent shall re- gibility. After notice to the former tain the application until the member’s spouse, payments to the former spouse retirement. In such case, payments to may be suspended, or terminated, when the former spouse, if otherwise proper, the former spouse fails to comply, or shall begin not later than 90 days from refuses to comply, with the certifi- the date the member first becomes entitled to receive retired pay. If the cation requirement. member becomes entitled to receive re- (i) Reconsideration. A former spouse tired pay more than 90 days after first or member may request that the des- being notified under paragraph (f) of ignated agent reconsider the des- this section, the notification proce- ignated agent’s determination in re- dures prescribed by that section shall sponse to service of an application for be repeated by the designated agent. payments under this part or the mem- (8) In moneys are only temporarily ber’s answer to the designated agent exhausted or otherwise unavailable, with respect to notice of such service. the former spouse shall be fully advised For reconsideration, the request must of the reason or reasons why and for express the issues the former spouse or how long the moneys will be unavail- the member believes were incorrectly able. Service shall be retained by the resolved by the designated agent. The designated agent and payments to the designated agent shall respond to the former spouse, if otherwise proper, request for reconsideration, giving an shall begin not later than 90 days from explanation of the determination the date the member becomes entitled reached. to receive retired pay. If the member becomes entitled to receive retired pay (Approved by the Office of Management and more than 90 days after first being no- Budget under control numbers 0704–0160 and tified under paragraph (f) of this sec- 0704–0182) tion, the notification procedures pre- [50 FR 2667, Jan. 18, 1985, as amended at 52 scribed by that section shall be re- FR 25215, July 6, 1987] peated by the designated agent.

239 § 64.1 32 CFR Ch. I (7–1–97 Edition)

PART 64—MANAGEMENT AND North Atlantic Treaty Organization MOBILIZATION OF REGULAR AND (NATO)-related missions. RESERVE RETIRED MILITARY MEM- § 64.3 Definitions. BERS (a) Key employee. Any Reservist, or Sec. any military retiree (Regular or Re- 64.1 Purpose. serve) identified by his or her em- 64.2 Applicability and scope. ployer, private or public, as filling a 64.3 Definitions. key position. 64.4 Policy. (b) Key position. A civilian position, 64.5 Responsibilities. public or private (designated by the 64.6 Procedures. employers and approved by the Sec- APPENDIX A TO PART 64—LETTER FORMAT TO retary concerned), that cannot be va- COGNIZANT SERVICE PERSONNEL CENTER cated during war or national emer- REQUESTING EMPLOYEE BE SCREENED gency. FROM RETIREE-RECALL PROGRAM APPENDIX B TO PART 64—LIST OF RESERVE (c) Military retiree categories—(1) Cat- PERSONNEL CENTERS TO WHICH RETIREE- egory I. Nondisability military retirees RECALL SCREENING DETERMINATION SHALL under age 60 who have been retired less BE FORWARDED than 5 years. AUTHORITY: 10 U.S.C. 672(a), 675, 688, and (2) Category II. Nondisability military 973. retirees under age 60 who have retired 5 years or more. SOURCE: 55 FR 9319, Mar. 13, 1990, unless otherwise noted. (3) Category III. Military retirees, including those retired for disability, § 64.1 Purpose. other than categories I or II retirees This part implements sections 672(a), (includes warrant officers and health- 675, 688, and 973 of title 10, United care professionals who retire from ac- States Code, by prescribing uniform tive duty after age 60). policy and procedures governing the (d) Military retirees or retired military peacetime management of retired mili- members. (1) Regular and Reserve offi- tary personnel, both Regular and Re- cers and enlisted members who retire serve, in preparation for their use dur- from the Military Services under 10 ing a mobilization. U.S.C. chapters 61, 63, 65, 67, 367, 571, 573, or 867 and 14 U.S.C. chapters 11 and § 64.2 Applicability and scope. 21. This part: (2) Reserve officers and enlisted (a) Applies to the Office of the Sec- members eligible for retirement under retary of Defense (OSD); the Military one of the provisions of law in defini- Departments (including their National tion (d)(1) who have not reached age 60 Guard and Reserve components); the and who have not elected discharge or Chairman, Joint Chiefs of Staff (Joint are not members of the Ready Reserve Staff); the Coast Guard and its Reserve or Standby Reserve (including mem- component (by agreement with the De- bers of the Inactive Standby Reserve). partment of Transportation (DoT)); (3) Members of the Fleet Reserve and and the Defense Agencies (hereafter re- Fleet Marine Corps Reserve under 10 ferred to collectively as ‘‘DoD Compo- U.S.C. 6330. nents’’). The term ‘‘Military Services,’’ as used herein, refers to the Army, § 64.4 Policy. Navy, Air Force, Marine Corps, and It is DoD policy that military retir- Coast Guard (by agreement with the ees shall be ordered to active duty (as DoT). needed) to fill personnel shortfalls due (b) By agreement with non-DoD orga- to mobilization or other emergencies, nizations that have DoD-related mis- as described in 10 U.S.C. 672 and 688. sions, includes organizations with De- DoD Components and the Coast Guard fense-related missions, such as the Fed- shall plan to use as many retirees, as eral Emergency Management Agency necessary, to meet national security (FEMA), the Selective Service System needs. Military retirees may be used as (SSS), and the organizations with follows:

240 Office of the Secretary of Defense § 64.6

(a) To fill shortages in, or to aug- Agency shall verify to the ment, deployed or deploying units. OASD(FM&P) the accuracy of their (b) To fill shortages in, or to aug- validated requirements and identify ment, supporting units and activities any new requirements. in the Continental United States (d) The Secretaries of the Military De- (CONUS), Alaska, and Hawaii. partments, or designees, shall: (c) To release other military mem- (1) Prepare plans and establish proce- bers for deployment overseas. dures for mobilization of military re- (d) Subject to the limitations of 10 tirees in conformance with this part. U.S.C. 973, to fill Federal civilian (2) Determine the extent of military workforce shortages within the Depart- retiree mobilization requirements ment of Defense, the Coast Guard, or based on existing inventories and in- other Government entities. ventory projections for mobilization of (e) To meet national security needs qualified Reservists in an active status in organizations outside the Depart- in the Ready Reserve, the Inactive Na- ment of Defense with Defense-related tional Guard, or the Standby Reserve. missions. (3) Develop procedures for identifying categories I and II retirees and conduct § 64.5 Responsibilities. screening of retirees using this part for (a) The Assistant Secretary of Defense guidance. (Reserve Affairs) (ASD(RA)) and the As- (4) Maintain personnel records and sistant Secretary of Defense (Force Man- other necessary records for military re- agement and Personnel) (ASD(FM&P)) tirees, including date of birth, date of shall provide overall policy guidance retirement, current address, and docu- for the management and mobilization mentation of military qualifications. of DoD military retirees. In addition, Maintain records for categories I and II the Assistant Secretary of Defense (Force military retirees, including retirees Management and Personnel) who are key employees and their avail- (ASD(FM&P)) shall: ability for mobilization, civilian em- (1) Validate positions identified by ployment, and physical condition. Data Defense and non-Defense Agencies as shall be maintained on retired Reserve suitable for fill by military retirees. members in accordance with 32 CFR (2) Establish priorities for fill once part 114. all requirements are identified. (5) Advise military retirees of their (3) Provide redistribution guidance. duty to provide the Military Services (b) The Secretaries of the Military De- with accurate mailing addresses and partments and the Commandant of the any changes in civilian employment, Coast Guard shall ensure that plans for military qualifications, availability for the management and mobilization of service, and physical condition. military retirees are consistent with (6) Preassign retired members, when this part. determined appropriate and as nec- (c) The Directors of the Defense Agen- essary. cies, the Director of the Federal Emer- (7) Determine refresher training re- gency Management Agency (FEMA) and quirements in accordance with the cri- the Director of the Selective Service Sys- teria established in § 64.6(a)(8). tem (SSS) and other Federal Organiza- tions, as appropriate, shall, by agree- § 64.6 Procedures. ment, assist in identifying military (a) Premobilization—(1) Management of and Federal civilian wartime positions military retirees. Military retiree man- that are suitable for fill by military re- agement systems should provide for tirees, and provide a list of require- rapid identification of retiree location ments to the Office of the Assistant and military skills to expedite report- Secretary of Defense (Force Manage- ing of retirees to a wide range of as- ment and Personnel) (OASD(FM&P)) signments and geographic locations in for validation and prioritization before mobilization or crisis. As part of the fill by the Military Services. The Serv- criteria for assignment of individuals ices retain the right to disapprove the to specific mobilization billets, the request if no military retiree is avail- Military Services should consider the able. At least annually, the requesting criticality of the mobilization billet,

241 § 64.6 32 CFR Ch. I (7–1–97 Edition) the skills of the individual, and his or mined by each Military Service, based her geographic proximity to the place on the retiree’s military skill and, if of assignment. To the extent possible, applicable, the nature and degree of the military retirees should be given the retiree’s disability. Category III retir- opportunity to volunteer for specific ees generally should be assigned to ci- assignments. The Military Depart- vilian jobs, unless they have critical ments shall develop plans and proce- skills or volunteer for specific military dures to identify military retirees ex- jobs. Age or disability alone may not cess to their needs. The Military De- be the sole basis for excluding a retiree partments, other DoD Components, from active Military Service during FEMA, SSS, and other Federal Agen- mobilization. cies, as appropriate, shall provide a list (6) Military retirees living overseas. of requirements to the Department of Military retirees who live overseas Defense. The Department of Defense maximally shall be preassigned in shall establish priorities for fill once peacetime, as determined by the Mili- all requirements and excess personnel tary Service concerned, to meet mobi- are identified and provide redistribu- lization augmentation requirements at tion guidance. overseas, U.S., or allied military in- (2) Requirement validation. The stallations or activities that are near OASD(FM&P) shall review and validate their places of residence. each mobilization requirement for a (7) Military retiree information. The de- military retiree. The criteria consid- velopment and maintenance of current ered shall be the structure of the orga- information on the mobilization avail- nization, the expanded workload re- ability of military retirees shall be the quirements in a mobilization environ- responsibility of the Military Services. ment, current manpower authoriza- Such information shall include, but not tions, and existing manpower infra- be limited to, date of retirement, date structures supporting the organiza- of birth, current address, and military tions. qualifications. Additionally, the Mili- (3) Assignment priority. The priority tary Services shall maintain informa- for use of military retirees shall be: tion on the availability for mobiliza- (i) Use by their own Service. tion and the physical condition of cat- (ii) Use by another Service or a De- egories I and II military retirees. Indi- fense Agency. cation of physical condition may be (iii) Use by a civilian Federal Depart- from certification by the individual ment or Agency. military retiree. (iv) Any other approved use. (4) Preassignment of categories I and II (8) Refresher training. Each Military military retirees. When determined ap- Service shall determine the necessity propriate by the Military Service con- for, and the frequency of, refresher cerned, military retirees who phys- training of military retirees, based on ically are qualified maximally should the needs of the Military Service and be preassigned in peacetime, either vol- the specific military skill of the mili- untarily or involuntarily, to installa- tary retiree. Emphasis should be on tions or to mobilization positions that voluntary refresher training. Civilian- must be filled within 30 days after mo- acquired skills may eliminate the need bilization. Key employees and category for refresher training. III retirees shall not be preassigned in- (9) Screening of military retirees—(i) voluntarily. Severe hostilities may Each Military Service shall develop pro- prevent the transmittal of mobilization cedures for identifying categories I and orders to military retirees. All mili- II retirees, and shall conduct screening tary retirees preassigned to mobiliza- of retirees using this part and 32 CFR tion positions or installations, either part 44 as guidance in formulating voluntarily or involuntarily, shall be screening criteria. issued preassignment or contingent (ii) All military retirees shall be ad- preassignment orders. vised to inform their employers con- (5) Category III military retirees. The cerning their liability for recall to ac- nature and extent of the mobilization tive duty in a mobilization or national of category III retirees shall be deter- emergency, and, when applicable, the

242 Office of the Secretary of Defense § 64.6 procedures for designating their posi- ees. The Secretary of a Military De- tion as a key position. partment may order any retired Regu- (iii) Federal employers annually shall lar member, retired Reserve member review their employment rolls to de- who has completed at least 20 years of termine if they employ any military Active Service, or a member of the retirees who are filling key positions, Fleet Reserve or Fleet Marine Corps as defined in § 64.3. Reserve to active duty at any time to (iv) Non-Federal employers also are en- perform duties deemed necessary in the couraged to use the key position guide- interests of national defense in accord- lines for making their own key posi- ance with 10 U.S.C. 675 and 688. Retired tion designations and, when applicable, Regular members of the Coast Guard for recommending certain military re- may be ordered to active duty by the tirees for key employees status. Secretary concerned only in time of (v) Key position designation guidelines. war or national emergency in accord- In determining whether or not a posi- ance with 14 U.S.C. 331 and 359. tion should be designated as a key posi- (ii) Reserve. The Secretary of a Mili- tion, employers should consider the fol- tary Department may order any other lowing criteria: retired member of a Reserve compo- (A) Can the position be filled in a rea- nent of a Military Service to active sonable time after mobilization? duty for the duration of a war or emer- (B) Does the position require tech- gency and for 6 months thereafter on nical or managerial skills that are pos- the basis of required skills, provided: sessed uniquely by the incumbent em- (A) War or national emergency has ployee? been declared by Congress. (C) Is the position associated directly (B) The Secretary of the Military De- with Defense mobilization? partment concerned, with the approval (D) Does the position include a mobi- of the Secretary of Defense, determines lization or relocation assignment in an there are not enough qualified Reserves Agency having emergency functions, as in an Active status or in the Inactive designated by E.O. 12656? (E) Is the position directly associated National Guard, under 10 U.S.C. 672(a). with industrial or manpower mobiliza- (3) Graduated Mobilization Response. tion, as designated in E.O. 10480? The Military Services shall develop (F) Are there other factors related to plans and procedures for ordering mili- national defense, health, or safety that tary retirees to active duty in accord- would make the incumbent of the posi- ance with a schedule that includes pre- tion unavailable for mobilization? , partial, and full mobilization require- (vi) Employers who determine that a ments. military retiree is filling a key posi- (c) Peacetime—(1) General. The Mili- tion and should not be recalled to ac- tary Departments shall establish pro- tive duty in an emergency should re- cedures to order military retirees to port that determination to the cog- active duty during peacetime. nizant military personnel center, using (2) Voluntary order to active duty—(i) the letter format shown in Appendix A Twenty-year active military service retir- to this part. The list of Reserve person- ees. The Secretary of a Military De- nel centers to which retiree-recall partment may order retired Regular screening-determination recommenda- members, retired Reserve members tions shall be forwarded is at Appendix who have completed at least 20 years of B to this part. active Military Service, or members of (b) Mobilization—(1) General. The the Fleet Reserve or Fleet Marine Military Services shall establish plans Corps Reserve to active duty with their and procedures to use those military consent at any time in accordance with retirees who meet specific skill and ex- 10 U.S.C. 688. perience requirements to fill mobiliza- (ii) Other Reserve retirees. The Sec- tion billets, when there is not enough retary of a Military Department may active or qualified Reserve manpower order other retired members of a Re- available. serve component to active duty with (2) Involuntary order to active duty—(i) their consent in accordance with 10 Twenty-year active military service retir- U.S.C. 672(d).

243 Pt. 64, App. A 32 CFR Ch. I (7–1–97 Edition)

(3) Involuntary order to active duty. APPENDIX B TO PART 64—LIST OF RE- The Secretary of a Military Depart- SERVE PERSONNEL CENTERS TO WHICH ment may order any retired Regular RETIREE-RECALL SCREENING DETER- member, retired Reserve member who MINATION SHALL BE FORWARDED has completed at least 20 years of ac- Army tive Military Service, or a member of the Fleet Reserve or Fleet Marine Commander U.S. Army Reserve Personnel Center Corps Reserve to active duty without ATTN: DARP–PAR–M the member’s consent at any time to 9700 Page Boulevard perform duties deemed necessary in the St. Louis, MO 63132–5200 interests of national defense in accordance with 10 U.S.C. 688. This includes Navy the authority to order a retired mem- Commanding Officer ber who is subject to the Uniform Code Naval Reserve Personnel Center of Military Justice (UCMJ) to active ATTN: NRPC Code 10 New Orleans, LA 70149 duty to facilitate the exercise of court- martial jurisdiction under 10 U.S.C. Marine Corps 802(a). A retired member may not be in- Commandant (Code RES) voluntarily ordered to active duty sole- Headquarters, U.S. Marine Corps ly for obtaining court-martial jurisdic- Washington, DC 20380 tion over the member. Air Force APPENDIX A TO PART 64—LETTER FOR- Air Reserve Personnel Center MAT TO COGNIZANT SERVICE PERSON- 7300 East First Avenue NEL CENTER REQUESTING EMPLOYEE Denver, CO 80280 BE SCREENED FROM RETIREE-RECALL Coast Guard PROGRAM Commandant (G–RSM–1) From: (employer-Agency or company) U.S. Coast Guard To: (appropriate Military Service personnel 2100 Second St. SW. center) Washington, DC 20593 Subject: Request for Employee to Be Re- moved from Retiree-Recall Program PART 65—ACCESSION OF CHAP- This is to certify that the employee identi- LAINS FOR THE MILITARY SERV- fied below is essential to the nation’s defense ICES efforts in (his or her) civilian job and cannot be mobilized with the Military Services in an Sec. emergency for the following reasons: 65.1 Purpose. Therefore, I request that (he or she) be ex- 65.2 Applicability. empted from recall to active duty in a mobi- 65.3 Policy. lization or national emergency and that you 65.4 Responsibilities. advise me accordingly when that action has 65.5 Procedures. been completed. APPENDIX TO PART 65—ECCLESIASTICAL EN- The employee is: DORSING AGENT CERTIFICATION Name of employee (last, first, M.I.) Military grade and Military Service compo- AUTHORITY: 10 U.S.C. 532, 591, and EO 9397, 3 CFR, 1943–1948 Comp., p. 283. nent Social security number SOURCE: 53 FR 48898, Dec. 5, 1988, unless Current home address (street, city, State, otherwise noted. and ZIP code) Title of employee’s civilian position § 65.1 Purpose. Grade or salary level of civilian position This part: (a) Revises 32 CFR part 65 Date (YYMMDD) hired or assigned to posi- to update policy, procedures, and re- tion sponsibilities. ———————————————————————— (b) Establishes the educational and Signature and Title of Agency ecclesiastical requirements for ap- Company Official pointment of military chaplains.

244 Office of the Secretary of Defense § 65.5

(c) Establishes criteria and proce- (i) Is a fully qualified member of the dures under which faith groups may be- clergy of a religious faith group rep- come ecclesiastical endorsing agents. resented by the certifying Agency. (ii) Is qualified to provide directly or § 65.2 Applicability. indirectly for the free exercise of reli- This part applies to the Office of the gion by all members of the Military Secretary of Defense (OSD), the Mili- Services, their dependents, and other authorized persons. tary Departments (including their Na- (2) The required ecclesiastical certifi- tional Guard and Reserve components), cation shall be made on DD Form 2088, and the Joint Staff (hereafter referred ‘‘Ecclesiastical Endorsing Agent Cer- to collectively as ‘‘DOD Components’’). tification.’’ If the applicant has com- The term‘‘Military Services,’’ as used pleted a number of years of active pro- herein, refers to the Army, Navy, Air fessional experience after the comple- Force, and Marine Corps. tion of educational requirements for the chaplaincy, the certifying agent § 65.3 Policy. shall so state on DD Form 2088. It is DOD policy that professionally (3) Chaplains who fail to maintain qualified chaplains shall be appointed their ecclesiastical certification shall to provide for the free exercise of reli- be processed in accordance with DOD gion for all members of the Military Directive 1332.31.1 Services, their dependents, and other (b) Criteria for Ecclesiastical Endorsing authorized persons. Persons appointed Agencies. (1) Religious faith groups that to the chaplaincy shall be able to per- seek to become ecclesiastical endorsing form a ministry for their own specific agents for the purpose of certifying the faith groups, and provide for ministries professional qualifications of clergy for appropriate to the rights and needs of appointment as chaplains in the Mili- persons of other faith groups. Persons tary Services shall obtain DOD rec- appointed to the chaplaincy shall be ognition through the action of the capable of providing professional staff Armed Forces Chaplains Board (AFCB). support to the Military Department To be considered for DOD recognition, concerned. each religious faith group shall: (i) Be organized exclusively or sub- § 65.4 Responsibilities. stantially to provide religious services to a lay constituency. (a) The Assistant Secretary of Defense (ii) Be able to exercise ecclesiastical (Force Management and Personnel) authority to grant or withdraw ecclesi- (ASD(FM&P)) may issue additions im- astical certification. plementing guidance consistent with (iii) Be able to provide continuing DOD 5025.1–M, as appropriate. validation of ecclesiastical certifi- (b) The Secretaries of the Military De- cation. partments shall follow the policy and (iv) Be able to certify clergy who are procedures in this part to ensure that qualified to provide directly or indi- persons appointed to the chaplaincy rectly for the free exercise of religion shall meet the minimum professional by all members of the Military Serv- and educational qualifications pre- ices, their dependents, and other au- scribed herein and any additional re- thorized persons. quirements established by law and reg- (v) Abide by the applicable DOD regu- ulation for appointment as an officer lations and policies. and a chaplain. (2) Through the action of the AFCB, the Department of Defense may revoke § 65.5 Procedures. its recognition of an ecclesiastical endorsing agent that fails to continue to (a) Ecclesiastical Certification of Clergy meet the criteria of paragraphs (b)(1) (1) To be considered for appointment (i) through (v) of this section. The and to serve as a chaplain, clergy shall be certified by a DOD-recognized eccle- 1 Copies may be obtained if needed, from siastical endorsing agent. The ecclesi- the U.S. Naval Publication and Forms Cen- astical certification shall attest that ter, 5801 Tabor Avenue, Attn: Code 301, Phila- the applicant: delphia, PA 19120.

245 § 65.5 32 CFR Ch. I (7–1–97 Edition)

AFCB, before revoking the recognition or from a school whose credits are ac- of an ecclesiastical endorsing agent, cepted by a college listed in the Direc- shall provide written notice to the tory Education. Agency concerned stating the reasons (ii) Have completed 3 resident years for the proposed revocation and provid- of graduate professional study in theol- ing a reasonable opportunity for the ogy or related subjects (normally vali- Agency to reply in writing to the dated by the possession of a Master of AFCB. Divinity degree, an equivalent degree, (3) Religious faith groups recognized or 90 semester hours) that lead to ec- by the Department of Defense as eccle- clesiastical certification as a member siastical endorsing agents may author- of the clergy fully qualified to perform ize third parties to act on their behalf the ministering functions of a chap- for accomplishing the administrative lain. procedures in accession of chaplains for (2) The applicant shall complete the the Military Services, and of maintain- graduate professional study referred to ing liaison with chaplains of the recog- in § 65.5(c)(1)(ii), at a graduate school nized faith group. Each such authorization shall be made in writing by an of- listed in the Education Directory, Col- ficial authorized by the faith group to leges and Universities; an accredited grant such authorization, and a copy of school listed in the ‘‘Directory, ATS 3 the authorization shall be filed with Bulletin, Part 4’’; or from a school the AFCB. whose credits are accepted by a school (c) Educational Requirements. (1) To be listed in the Directory or listed as ac- considered for appointment as a chap- credited in the ‘‘Directory, ATS Bul- lain in the Military Services, an appli- letin, part 4.’’ cant shall: (d) Other Requirements. Applicants for (i) Possess a baccalaureate degree of the chaplaincy also shall meet the re- not less than 120 semester hours from a quirements established by the Military college that is listed in the ‘‘Education Departments for appointment as an of- Directory, Colleges and Universities’’ 2 ficer and a chaplain.

2 Current edition published by U.S. Depart- 3 Current edition published by the Associa- ment of Education, National Center for Edu- tion of Theological Schools, Vandalia, Ohio cation Statistics, Washington, DC 20202. 45377.

246 Office of the Secretary of Defense § 65.5

APPENDIX TO PART 65—ECCLESIASTICAL ENDORSING AGENT CERTIFICATION

[54 FR 974, Jan. 11, 1989]

247 § 67.1 32 CFR Ch. I (7–1–97 Edition)

PART 67—EDUCATIONAL REQUIRE- of Defense designates pursuant to § 67.5 MENTS FOR APPOINTMENT OF (a) and (b). RESERVE COMPONENT OFFICERS (c) Unaccredited educational institution. An educational institution not ac- TO A GRADE ABOVE FIRST LIEU- credited by an agency recognized by TENANT OR LIEUTENANT (JUNIOR the Secretary of Education. GRADE) § 67.4 Policy. Sec. (a) It is Department of Defense policy 67.1 Purpose. under 10 U.S.C. 12205 to require Reserve 67.2 Applicability. component officers to have been award- 67.3 Definitions. 67.4 Policy. ed at least a baccalaureate degree from 67.5 Responsibilities. a qualifying educational institution be- 67.6 Procedures. fore appointment to a grade above AUTHORITY: 10 U.S.C. 12205. First Lieutenant in the Army Reserve, Air Force Reserve or Marine Corps Re- SOURCE: 60 FR 54302, Oct. 23, 1995, unless serve, or Lieutenant (Junior Grade) in otherwise noted. the Naval Reserve, or for officers to be § 67.1 Purpose. federally recognized in a grade above First Lieutenant as a member of the This part implements policy, assigns Army National Guard or Air National responsibilities, and prescribes proce- Guard. dures under 10 U.S.C. 12205 for deter- (b) Exempt from this policy is any of- mining educational institutions that ficer who was: award baccalaureate degrees that sat- (1) Appointed to or recognized in a isfy the educational requirement for higher grade for service in a health appointment of officers to a grade profession for which a baccalaureate above First Lieutenant in the Army degree is not a condition of original ap- Reserve, Air Force Reserve, and Marine pointment or assignment. Corps Reserve, or Lieutenant (Junior (2) Appointed in the Naval Reserve or Grade) in the Naval Reserve, or for offi- Marine Corps Reserve as a limited duty cers to be federally recognized in a officer. grade above First Lieutenant as a (3) Appointed in the Naval Reserve member of the Army National Guard or for service under the Naval Aviation Air National Guard. Cadet (NAVCAD) program. (4) Appointed to or recognized in a § 67.2 Applicability. higher grade if appointed to, or feder- This part applies to the Office of the ally recognized in, the grade of captain Secretary of Defense, and the Military or, in the case of the Navy, lieutenant Departments. The term ‘‘Military De- before October 1, 1995. partment,’’ as used herein, refers to the (5) Recognized in the grade of captain Departments of the Army, the Navy, or major in the Alaska Army National and the Air Force. The term ‘‘Reserve Guard, who resides permanently at a components’’ refers to the Army Re- location in Alaska that is more than 50 serve, Army National Guard of the miles from each of the cities of An- United States, Air Force Reserve, Air chorage, Fairbanks, and Juneau, Alas- National Guard of the United States, ka, by paved road, and who is serving Naval Reserve, and Marine Corps Re- in a Scout unit or a Scout support unit. serve. (c) The Department of Defense will designate an unaccredited educational § 67.3 Definitions. institution as a qualifying educational (a) Accredited educational institution. institution for the purpose of meeting An educational institution accredited this educational requirement if that in- by an agency recognized by the Sec- stitution meets the criteria established retary of Education. in this part. (b) Qualifying educational institution. An educational institution that is ac- § 67.5 Responsibilities. credited, or an unaccredited edu- (a) The Assistant Secretary of De- cational institution that the Secretary fense for Reserve Affairs, under the

248 Office of the Secretary of Defense § 67.6

Under Secretary of Defense for Person- tution by providing certification from nel and Readiness, shall: registrars at three accredited edu- (1) Establish procedures in which an cational institutions that maintain unaccredited educational institution ROTC programs that their educational can apply for DoD designation as a institutions would accept at least 90 qualifying educational institution. percent of the credit hours earned by (2) Publish in the FEDERAL REGISTER that officer at the unaccredited edu- DoD requirements and procedures for cational institution, as of the year of an unaccredited educational institu- graduation. tion to apply for designation as a quali- (b) For an unaccredited educational fying educational institution. institution to be designated as a quali- (3) Annually, provide to the Secretar- fying educational institution for a spe- ies of the Military Department a list of cific year, that educational institution those unaccredited educational institu- must provide the Office of the Assist- tions that have been approved by the ant Secretary of Defense for Reserve Department of Defense as a qualifying Affairs certification from the reg- educational institution. This list shall istrars at three different accredited include the year or years for which educational institutions that maintain unaccredited educational institutions ROTC programs listing the major are designated as qualifying edu- field(s) of study in which those educational institutions. cational institutions would accept at (b) The Secretaries of the Military least 90 percent of the credit hours Departments shall establish procedures earned by a student who was awarded a to ensure that after September 30, 1995, baccalaureate degree in that major those Reserve component officers se- field of study at the unaccredited edu- lected for appointment to a grade cational institution. above First Lieutenant in the Army (c) For an unaccredited educational Reserve, Air Force Reserve or Marine institution to be considered for des- Corps Reserve, or Lieutenant (Junior ignation as a qualifying educational in- Grade) in the Naval Reserve, or for offi- stitution, the unaccredited educational cers to be federally recognized in a institution must submit the required grade above First Lieutenant as a documentation no later than January 1 member of the Army National Guard or of the year for which the unaccredited Air National Guard, who are required educational institution seeks to be des- to hold a baccalaureate degree, were ignated a qualifying educational insti- awarded their degree before appoint- tution. ment to the next higher grade. For a (d) The required documentation must degree from an unaccredited edu- be sent to the following address: Office cational institution that has been rec- of the Assistant Secretary of Defense ognized as a qualifying educational infor Reserve Affairs, Attn: DASD(M&P), stitution by the Department of Defense 1500 Defense Pentagon, Washington, DC to satisfy this educational require- 20301–1500. ments of 10 U.S.C. 12205, the degree (e) Applications containing the re- must not have been awarded more than quired documentation may also be sub- three years before the date the officer mitted at any time from unaccredited is to be appointed, or federally recog- educational institutions requesting nized, in the grade of Captain or above designation as qualifying educational in the Army Reserve, Army National institutions for prior school years. Guard, Air Force Reserve, Air National Guard, or Marine Corps Reserve, or in PART 68—PROVISION OF FREE PUB- the grade of Lieutenant or above in the LIC EDUCATION FOR ELIGIBLE Naval Reserve. CHILDREN PURSUANT TO SEC- § 67.6 Procedures. TION 6, PUBLIC LAW 81–874 (a) An unaccredited educational in- Sec. stitution may obtain designation as a 68.1 References. qualifying educational institution for a 68.2 Purpose. specific Reserve component officer who 68.3 Applicability and scope. graduated from that educational insti- 68.4 Policy.

249 § 68.1 32 CFR Ch. I (7–1–97 Edition)

68.5 Definitions. ble dependent children as authorized by 68.6 Responsibilities. § 68.1 (a), (b), and (c). 68.7 Effective date and implementation. (b) Implements § 68.1 (a), (b), (d), and AUTHORITY: 20 U.S.C. 241. (e). SOURCE: 52 FR 44389, Nov. 19, 1987, unless otherwise noted. § 68.3 Applicability and scope. This part applies to: § 68.1 References. (a) The Office of the Secretary of De- (a) Public Law 97–35, ‘‘Omnibus Budg- fense (OSD), the Military Departments, et Reconciliation Act of 1981,’’ section and the Defense Agencies. 505(c), August 13, 1981 (20 U.S.C. 241 (b) The schools operated by DoD note). within the Continental United States (b) Public Law 81–874 dated Septem- (CONUS), Alaska, Hawaii, Puerto Rico, ber 30, 1950, section 6, as amended (20 Wake Island, Guam, American Samoa, U.S.C. 241). the Northern Mariana lslands, and the (c) Public Law 95–561, ‘‘Defense De- Virgin Islands. pendents’ Education Act of 1978,’’ sections 1009 and 1031(a), November 1, 1978 § 68.4 Policy. (20 U.S.C. 241). (d) Memorandum of Understanding (a) In conformity with § 68.1 (a), (b), Between The Department of Defense and (c), it is DoD policy that dependent and The Department of Education, Au- children of U.S. military personnel and gust 16, 1982. federally employed civilian personnel (e) FEDERAL REGISTER Document 84– residing on Federal property be edu- 11282, ‘‘Process for Section 6 Schools cated, whenever suitable, in schools op- Operated by the Department of De- erated and controlled by local public fense,’’ FEDERAL REGISTER, Volume 49, school systems. Number 82, page 18028, April 26, 1984. (b) When it is not suitable for the (f) Assistant Secretary of Defense children of U.S. military personnel and (Force Management & Personnel) federally employed civilian personnel Memorandum, ‘‘Education of Handi- to0attend a locally operated public capped Students in Section 6 Schools school, the Secretary of Defense, or Operated by the Department of De- designee, shall make arrangements for fense,’’ December 10, 1986. the free public education of such chil- (g) Public Law 94–142, ‘‘Education for dren. These arrangements may include All Handicapped Children Act of 1975,’’ the establishment of schools within the as amended (20 U.S.C. 1401 et seq.). United States and specified posses- (h) DoD Directive 1020.1, ‘‘Non- sions. discrimination on the Basis of Handi- (c) The arrangements for such free cap in Programs and Activities As- public education shall be made by the sisted or Conducted by the Department Secretary of Defense, or designee, ei- of Defense,’’ March 31, 1982. ther with a local educational agency, (i) DoD 7220.9–M, ‘‘Department of De- or with the Head of a Federal Depart- fense Accounting Manual,’’ October ment or Agency, whichever in the judg- 1983, authorized by DoD Instruction ment of the Secretary, or designee, ap- 7220.9, October 22, 1981. pears to be more applicable. If such an (j) DoD Directive 7600.6, ‘‘Audit of arrangement is made with the Head of Nonappropriated Funds and Related a Federal Department or Agency, ei- Activities,’’ January 4, 1974. ther it must administer the property (k) DoD Directive 5500.7, ‘‘Standards on which the children to be educated of Conduct,’’ January 15, 1977. reside or, if the local schools are unavailable to the children of members of § 68.2 Purpose. the Armed Forces on active duty be- This part: cause of official State or local action (a) Establishes policies and pre- and no suitable free public education scribes procedures for the Department may be provided by a local educational of Defense (DoD) to make arrange- agency, the Department or Agency ments (as defined in § 68.5) for the pro- must have jurisdiction over the parents vision of free public education to eligi- of some or all of such children.

250 Office of the Secretary of Defense § 68.4

(d) Section 6 School Arrangements no adjacent State has adopted a State are required, to the maximum extent plan, the State plan of another State practicable, to provide educational pro- that is similar to the State in which grams comparable to those being pro- the Section 6 School Arrangement is vided by local public educational agen- located shall be selected. cies in comparable communities in the (f) After consultation with the Mili- State where the Section 6 School Ar- tary Departments, funds shall be made rangement is located. If the Section 6 available for the operation and mainte- School Arrangement is outside of nance of Section 6 School Arrange- CONUS, Alaska, or Hawaii, it shall pro- ments, on either a direct or reimburs- vide, to the maximum extent prac- able basis, to the comptroller at the re- ticable, educational programs that are spective military installation. These comparable to the free public edu- funds shall remain separate and dis- cation provided by the District of Co- tinct from the funds of the individual lumbia. Military Services. (e) Section 6 School Arrangements operated by DoD under 68.1 (a)l (b), and (g) Attendance in Section 6 School (d) shall comply, except as provided in and Special Arrangements within this paragraph, with § 68.1(g). lf the CONUS, Alaska, and Hawaii is limited State or other jurisdiction on which a to eligible dependent children under Section 6 School Arrangement’s edu- § 68.1(b). Guidance, consistent with cational comparability is based has § 68.1 (b) and (c) for student eligibility adopted a ‘‘State plan’’ for the imple- for Section 6 School Arrangements lo- mentation of § 68.1(g) that Section 6 cated outside of CONUS, Alaska, and School Arrangement shall provide its Hawaii shall be established by the Mili- handicapped students a free appro- tary Department concerned after co- priate public education, as defined in ordination and approval by the General § 68.1(g). That education, except as fol- Counsel of the Department of Defense, lows in this paragraph, is consistent or designee, and the Assistant Sec- with such State plan. To satisfy this retary of Defense (Force Management responsibility, Section 6 School Ar- and Personnel), or designee. rangements shall conform to the sub- (h) Where a member of the Armed stantive and procedural provisions of Forces is transferred or retires and the § 68.1(g), except for those relating to member’s family moves after the start impartial due process hearings in sec- of the school year from on-base (post) tion 1415 of § 68.1(g). The procedures of housing, the member’s children shall such Section 6 School Arrangements be permitted to continue in attendance for the identification, assessment, and at the Section 6 School Arrangement programming of handicapped students for the remainder of the school year in special education and related serv- during which the transfer or retire- ices must conform to the comparable ment occurred, if the child is residing State’s regulatory guidelines. Com- with a parent or legal guardian or an- plaints with respect to the identifica- other person acting in loco parentis. tion, evaluation or educational placement of, or the free appropriate public (i) Where a member of the Armed education provided to, students in such Forces is assigned to an installation on a Section 6 School Arrangement who which there is a Section 6 School Ar- are or may be handicapped shall be in- rangement and is assigned on-base vestigated under enclosure 5 to DoD (post) family housing that is expected Directive 1020.1 1 (§ 68.1(h)). lf the State to be available for occupancy and to be on which a Section 6 School Arrange- occupied within 90 school days from ment’s comparability is based has not the reporting date, the member’s chil- adopted a State plan, the State plan of dren may be permitted to attend the an adjacent State must be followed. If school while residing in an area adjacent to such Federal property. Trans- portation for children attending a Sec- 1 Copies may be obtained, if needed, from the U.S. Naval Publications and Forms Cen- tion 6 School Arrangement under these ter, ATTN: Code 1052, 5801 Tabor Avenue, conditions is the responsibility of the Philadelphia, PA 19120. parent.

251 § 68.5 32 CFR Ch. I (7–1–97 Edition)

§ 68.5 Definitions. Dependent children. Children who re- Adjacent area. A geographic location side on Federal property, or are minor that is next to or near Federal prop- dependents who are the children, step- erty. This normally should include a children, adopted children, or wards of student commuting area within 45 min- U.S. military sponsors or federally em- utes of the Federal property, unless an- ployed sponsors, or who are residents other area identified as adjacent is des- in the households of bona fide sponsors ignated specifically by an adminis- who stand in loco parentis to such indi- trator of the Federal property; i.e., the viduals and who receive one-half or installation commander. more of their support from such spon- Arrangements. Actions taken by the sors, and are within the age limits for Secretary of Defense to provide a free which the applicable State provides public education to dependent children free public education. under Pub. L. 81–874 through, first, Sec- Federal property. Real property that tion 6 School Arrangements or, second, is owned or leased by the United Section 6 Special Arrangements:‘ States. (a) Section 6 School Arrangement. Free public education. Education that When a DoD-operated scxool is estab- is provided at public expense under lished on Federal property to provide a public supervision and direction with- free public education for eligible chil- out charge to the sponsor of a child, dren or, if not established on such and that is provided at the elementary property, the eligible child resides on or secondary school level of the appli- such property. cable State. The term shall not include (b) Section 6 Special Arrangement. An any education provided beyond grade agreement, under § 68.1(b), between the 12, except in the case of State policy Secretary of Defense, or designee, the regarding the education of handicapped ASD(FM&P), or designee, or the Sec- students, nor does it preclude the col- retary of a Military Department, or lecting of tuition from an Agency re- designee, and a local public education sponsible for the assignment of a agency whereby a school or a school child’s sponsor resulting in the attend- system operated by the local public ance of the child of a Section 6 School education agency provides educational Arrangement. services to eligible dependent children Local educational agency. A board of of U.S. military personnel and feder- education or other legally constituted ally employed civilian personnel. Ar- local school authority having adminis- rangements result in partial or total trative control and direction of free Federal funding to the local public edu- public education in a county, township, cation agency for the educational serv- independent, or other school district in ices provided. a State. The term includes any State Comparability is the Comparability. Agency operating and maintaining fa- act of demonstrating that the edu- cilities for providing free public educational services and programs, school cation. plant and facilities, budget and per- Parent. Includes a legal guardian or pupil expenditures, and all associated another person standing in loco activities and services provided in Sec- parentis. tion 6 School Arrangements for the free public education of eligible de- State. A State, Puerto Rico, Wake Is- pendent children are, to the maximum land, Guam, the District of Columbia, extent practicable, equivalent in qual- American Samoa, the Northern Mari- ity and availability to those provided ana lslands, or the Virgin Islands. by school districts in the State where State educational agency. The officer the Section 6 School Arrangement is or Agency primarily responsible for located or the district(s) to which it is State supervision of public elementary compared. Each Section 6 School Ar- and secondary schools. rangement, in coordination with the Military Department concerned, shall § 68.6 Responsibilities. provide an annual statement, with sup- (a) The Assistant Secretary of Defense porting documentation, which dem- (Force Management and Personnel) onstrates its comparability. (ASD(FM&P)), or designee, shall:

252 Office of the Secretary of Defense § 68.6

(1) Ensure the development of poli- (c) The Secretaries of the Military De- cies and procedures for the operation, partments, or designees, shall: management, budgeting (in accordance (1) Comply with this Directive, in- with guidance provided by the Assist- cluding policies and procedures pro- ant Secretary of Defense (Comptroller) mulgated under § 68.6(a)(1), and ensure (ASD(C)), construction, and financing that Section 6 School Arrangements on of Section 6 Schools and for Section 6 their respective installations or under Special Arrangements. their jurisdiction are maintained and (2) Ensure that arrangements shall be operated under this part. made for the free public education of (2) Submit budgets to the eligible dependent children in CONUS, ASD(FM&P) for operation and mainte- Alaska, Hawaii, Puerto Rico, Wake Is- nance, procurement, and military con- land, Guam, American Samoa, the struction for each Section 6 School Ar- Northern Mariana Islands, and the Vir- rangement and each Section 6 Special gin Islands, under § 68.1 (a), (b), and (c). Arrangement under OSD guidelines. (3) Ensure the establishment of elect- (3) Ensure that there is an elected ed school boards in Section 6 School school board at each Section 6 School Arrangements operating under § 68.1 (a) Arrangement. and (b). (4) Ensure the establishment of a (4) Ensure that the free public edu- means for employing personnel and, as cation being provided is, to the maxi- required, for programming manpower mum extent practicable, of the kind spaces for such employees, all subject and quality as that being provided by to applicable laws and regulations. comparable public school districts in (5) Ensure that each Section 6 School the State in which the Section 6 School Arrangement has current operating Arrangement or Section 6 Special Ar- guidelines. rangement is located or, if outside of (6) Ensure that nonappropriated CONUS, Alaska, and Hawaii, as that funds and related activities of Section being provided by the District of Co- 6 School Arrangements are reviewed lumbia public schools. under DoD Directive 7600.6 3 (§ 68.1(j)). (5) Ensure the establishment of audit (7) Establish guidance, consistent procedures for reviewing funding of with § 68.1 (b) and (c), for student eligi- Section 6 School Arrangements and bility to attend Section 6 School Ar- Section 6 Special Arrangements under rangements located outside of CONUS, § 68.1 (a), (b), and (c). Alaska, and Hawaii and operated by (6) Ensure timely and accurate prepa- the Military Department concerned. ration of budget execution reports and Gain the approval of the ASD(FM&P), full compliance with accounting re- or designee, and the GC, DoD, or des- quirements in accordance with DoD ignee, before implementation. 7220.9–M 2 (§ 68.1(i)). (d) The Installation Commanders, or (7) Approve guidance for student eli- for Puerto Rico, the Area Coordinator, gibility established by a Military De- shall: partment for Section 6 School Arrange- (1) Provide resource and logistics ments located outside of CONUS, Alas- ka, and Hawaii. support at each Section 6 School Ar- (b) The General Counsel of the Depart- rangement located on the installation. ment of Defense (GC, DoD), or designee, (2) Ensure the establishment and op- shall: eration of an elected school board at (1) Approve guidance established by a the Section 6 School Arrangement. Military Department for student eligi- (3) Ensure the implementation of 4 bility for Section 6 School Arrange- DoD Directive 5500.7 (§ 68.1(k)) and ments located outside of CONUS, Alas- that all Section 6 School Arrangement ka, and Hawaii. personnel are counseled and familiar- (2) Provide legal advice for the imple- ized with its contents. mentation of this part. (4) Provide installation staff personnel to advise the school board in budg- 2 Copies may be obtained, at cost, from the et, civil engineering, law, personnel, U.S. Department of Commerce, National Technical Information Service, 5285 Port 3 See footnote 1 to § 68.4(e). Royal Road, Springfield, Va 22161. 4 See footnote 1 to § 68.4(e).

253 § 68.6 32 CFR Ch. I (7–1–97 Edition) procurement, and transportation mat- and implementation of school board ters, when applicable. policies, rules, and regulations. (5) Disapprove actions of the school (10) Consult with the Superintendent board that conflict with applicable on pertinent school matters, as they statutes or regulations. Disapprovals arise, which concern the school and on must be in writing to the school board which the school board may take ac- and shall note the specific reasons for tion. the disapprovals. A copy of this action (11) Channel communications with shall be forwarded through channels of school employees that require action the Military Department concerned to through the Superintendent, and refer the ASD(FM&P), or designee. all applications, complaints, and other (6) Ensure the safety of students communications, oral or written, to traveling to and from the on-base the Superintendent in order to ensure (post) school(s). the proper processing of such commu- (7) Ensure that comptrollers and nications. other support elements comply with (12) Establish policies and procedures the authorized execution of funds for for the effective processing of, and re- Section 6 School Arrangements in ac- sponse to, complaints. cordance with the budget approved by (f) The Section 6 School Arrangement the ASD(FM&P), or designee. Superintendent shall: (e) The Section 6 Dependents’ School (1) Serve as the chief executive offi- Board shall: (1) Review and monitor school ex- cer to the school board to ensure the penditures and operations, subject to implementation of the school board’s audit procedures established under this policies, rules, and regulations. part and consistent with § 68.1 (a) and (2) Attend all school board meetings, (b). or send a designee when unable to at- (2) Conduct meetings, approve agen- tend, sitting with the school board as a das, prepare minutes, and conduct non-voting member. other activities incident to and associ- (3) Provide advice and recommenda- ated with Section 6 School Arrange- tions to the school board and the In- ments. stallation Commander or Area Coordi- (3) Recruit and select a Superintend- nator on all matters and policies for ent for the Section 6 School Arrange- the operation and administration of ment under the school board’s jurisdic- the school system. tion. (4) Recruit, select, and assign all pro- (4) Provide the Superintendent with fessional and support personnel re- regular constructive written and oral quired for the school system. Teachers evaluations of his or her performance. and school administrators shall hold, Evaluations should be linked to goals at a minimum, a current and applica- established by the school board with ble teaching or supervisory certificate, the assistance of the Superintendent. respectively, from any of the 50 States, (5) Provide the Superintendent the Puerto Rico, the District of Columbia, benefit of the school board’s counsel in or the DoD Dependents’ Schools sys- matters on individual school board tem. Additional certification may be member’s expertise. necessary to comply with respective (6) Ensure the attendance of the Su- State or U.S. national accreditation as- perintendent, or designee, at all school sociation standards and requirements. board meetings. (5) Determine retention or termi- (7) Review and approve school budg- nation of employment of all school per- ets prior to submission to the sonnel under applicable Federal regula- ASD(FM&P), or designee, through tions. channels of the Military Department (6) Organize, administer, and super- concerned. vise all school personnel to ensure that (8) Establish policies and procedures the curriculum standards, specialized for the operation and administration of programs, and level of instruction are the Section 6 School Arrangement(s). comparable to accepted educational (9) Provide guidance and assistance practices of the State or the District of to the Superintendent in the execution Columbia, as applicable.

254 Office of the Secretary of Defense § 68.6

(7) Be responsible for the fiscal man- rangement, as authorized by section agement and operation of the school 1009(d) of § 68.1(c), shall be empowered system to include execution of the to oversee school expenditures and op- budget as approved by ASD(FM&P), or erations, subject to audit procedures designee, and in accordance with established by the Secretary of Defense school board guidance. and under § 68.1(b). The Secretary of (8) Ensure the evaluation of all the respective Military Department school employees on a regular basis. shall: (9) Ensure the maintenance of all (1) Ensure that the school board is school buildings, grounds, and property composed of a minimum of three mem- accounting records. bers elected only by parents or legal (10) Ensure the procurement of nec- guardians (military or civilian) of stu- essary school supplies, equipment, and services. dents attending the school at the time (11) Ensure the preparation of the an- of the election. The terms for school nual Section 6 School Arrangement board members are to be established as budget as approved by the school between one and three years. board, and as required by the (2) Ensure the following procedures ASD(FM&P), or designee, and the Mili- for a school board election are ob- tary Department concerned, in accord- served: ance with guidance provided by the (i) Parents shall have adequate no- ASD(C), or designee, under DoD 7220.9– tice of the time and place of the elec- M. tion. (12) Ensure the maintenance of a pro- (ii) Election shall be conducted by se- fessional relationship with local and cret ballot. The candidate(s) receiving State school officials. the greatest number of votes shall be (13) Ensure, wherever practicable, the elected as school board member(s). maintenance of accreditation of the (iii) Personnel employed in the Section 6 School Arrangement by the school system shall not be school board State and/or applicable regional ac- members, except for the Superintend- creditation agencies. ent, who serves as a non-voting mem- (14) Operate the school consistent ber. with applicable Federal statutes and regulations, and with State statutes (iv) Nominations shall be by petition and regulations that are made applica- of parents of students attending the ble to the Section 6 School Arrange- school at the time of the election. ment by this part. Votes may be cast at the time of elec- (15) Ensure the submission of an an- tion for write-in candidates who have nual statement to the Military Depart- not filed a nomination petition if the ment concerned demonstrating com- write-in candidates otherwise are parability of the free public education qualified to serve in the positions provided in the Section 6 School Ar- sought. rangement(s). (v) The election process shall provide (16) Ensure the implementation of for the continuity of school board oper- the local State plan or regulatory ations. guidelines for compliance with § 68.1(g). (vi) Vacancies that occur among If the State on which a Section 6 members of the elected school board School Arrangement’s comparability is may be filled to complete unexpired based has not adopted a State plan, the terms by either election of members by responsible Section 6 School System a special election process or by a Superintendent shall choose the State school board election process if at least plan of an adjacent State to follow. If three school board members serving no adjacent State has adopted a State plan, the Superintendent shall select were elected by parents. Members the State plan of another State that is elected to fill unexpired terms shall similar to the State in which the Sec- not serve more than one year, unless tion 6 School Arrangement is located. elected by parents of the students. (g) Section 6 School Board Elections. A (vii) The responsibility for develop- school board for a Section 6 School Ar- ing the plans for and conducting the

255 § 68.7 32 CFR Ch. I (7–1–97 Edition) school board election rests with the land, Guam, American Samoa, the Superintendent and the school board. Northern Mariana Islands, and the Vir- gin Islands, known as DoD DDESS Ar- [52 FR 44389, Nov. 19, 1987, as amended at 53 FR 49981, Dec. 13, 1988] rangements. (c) This part does not apply to elect- § 68.7 Effective date and implementa- ed school boards established under tion. state or local law for DoD DDESS spe- This part is effective October 16, 1987. cial arrangements. The Secretary of each Military Depart- § 69.3 Definitions. ment shall forward two copies of the Military Department’s implementing (a) Arrangements. Actions taken by documents to the ASD(FM&P) within the Secretary of Defense to provide a 120 days. free public education to dependent children under 10 U.S.C. 2164 through DoD DDESS arrangements or DoD PART 69—SCHOOL BOARDS FOR DDESS special arrangements: DEPARTMENT OF DEFENSE DO- (1) DDESS arrangement. A school op- MESTIC DEPENDENT ELEMENTARY erated by the Department of Defense AND SECONDARY SCHOOLS under 10 U.S.C. 2164 and 32 CFR 345 to provide a free public education for eli- Sec. gible children. 69.1 Purpose. (2) DDESS special arrangement. An 69.2 Applicability and scope. agreement, under 10 U.S.C. 2164, be- 69.3 Definitions. tween the Secretary of Defense, or des- 69.4 Policy. 69.5 Responsibilities. ignee, and a local public education 69.6 Procedures. agency whereby a school or a school system operated by the local public AUTHORITY: 10 U.S.C. 2164. education agency provides educational SOURCE: 61 FR 60563, Nov. 29, 1996, unless services to eligible dependent children otherwise noted. of U.S. military personnel and federally employed civilian personnel. Ar- § 69.1 Purpose. rangements result in partial or total This part prescribes policies and pro- Federal funding to the local public edu- cedures for the establishment and oper- cation agency for the educational serv- ation of elected School Boards for ices provided. schools operated by the Department of (b) Parent. The biological father or Defense (DoD) under 10 U.S.C. 2164, 32 mother of a child when parental rights CFR part 345, and Public Law 92–463. have not been legally terminated; a person who, by order of a court of com- § 69.2 Applicability and scope. petent jurisdiction, has been declared This part applies to: the father or mother of a child by adop- (a) The Office of the Secretary of De- tion; the legal guardian of a child; or a fense (OSD), the Military Departments, person in whose household a child re- the Coast Guard when operating as a sides, provided that such person stands service of the Department of the Navy in loco parentis to that child and con- or by agreement between DoD and the tributes at least one-half of the child’s Department of Transportation, the support. Chairman of the Joint Chiefs of Staff, the Unified and Specified Combatant § 69.4 Policy. Commands, the Inspector General of (a) Each DoD DDESS arrangement the Department of Defense, the Uni- shall have an elected school board, es- formed Services University of the tablished and operated in accordance Health Sciences, the Defense Agencies, with this part and other pertinent and the DoD Field Activities. guidance. (b) The schools (prekindergarten (b) Because members of DoD DDESS through grade 12) operated by the DoD elected school boards are not officers under 10 U.S.C. 2164 and 32 CFR part 345 or employees of the United States ap- within the continental United States, pointed under the Appointments Clause Alaska, Hawaii, Puerto Rico, Wake Is- of the United States Constitution (Art.

256 Office of the Secretary of Defense § 69.5

II, Sec. 2, Cl. 2), they may not exercise school board in resolving them or di- discretionary governmental authority, rect that such actions be discontinued. such as the taking of personnel actions Such disapprovals must be in writing or the establishment of governmental to the school board and the Super- policies. This part clarifies the role of intendent concerned and shall state the school boards in the development and specific supporting reason or reasons. oversight of fiscal, personnel, and edu- (c) Ensure the school board for DoD cational policies, procedures, and pro- DDESS arrangements shall: grams for DoD DDESS arrangements, (1) Participate in the development subject to these constitutional limita- and oversight of fiscal, personnel, and tions. educational policies, procedures, and (c) The DoD DDESS chain of com- programs for the DoD DDESS arrange- mand for matters relating to school ar- ment concerned, consistent with this rangements operated under 10 U.S.C. 2164 and 32 CFR part 345 shall be from part. the Director, DoD DDESS, to the Su- (2) Approve agendas and prepare min- perintendent of each school arrange- utes for school board meetings. A copy ment. The Superintendent will inform of the approved minutes of school the school board of all matters affect- board meetings shall be forwarded to ing the operation of the local school ar- the Director, DoD DDESS, within 10 rangement. Direct liaison among the working days after the date the min- school board, the Director, and the Su- utes are approved. perintendent is authorized for all mat- (3) Provide to the Director, DoD ters pertaining to the local school ar- DDESS, names of applicants for a va- rangement. cancy in the Superintendent’s position after a recruitment has been accom- § 69.5 Responsibilities. plished. The school board shall submit The Assistant Secretary of Defense to the Director, DoD DDESS, a list of for Force Management Policy (ASD all applicants based on its review of the (FMP)), under the Under Secretary of applications and interviews (either in Defense for Personnel and Readiness, person or telephonically) of the appli- shall: cants. The list of applicants will be ac- (a) Make the final decision on all for- companied by the recommended choice mal appeals to directives and other of the school board. The Director will guidance submitted by the school select the Superintendent and will sub- board or Superintendent. mit written notice with justification to (b) Ensure the Director, DoD DDESS the school board if the recommenda- shall: tion of the school board is not followed. (1) Ensure the establishment of elect- (4) Prepare an annual written on-site ed school boards in DoD DDESS ar- review of the Superintendent’s per- rangements. formance for consideration by the Di- (2) Monitor compliance by the Super- intendent and school boards with appli- rector, DoD DDESS. The written re- cable statutory and regulatory require- view shall be based on critical elements, and this part. In the event of ments recommended by the school suspected noncompliance, the Director, board and Superintendent and ap- DoD DDESS, shall take appropriate ac- proved by the Director, DoD DDESS. tion, which will include notification of The school board’s review will be an of- the Superintendent and the school ficial attachment to the Superintend- board president of the affected DoD ent’s appraisal. DDESS arrangement. (5) Participate in the development of (3) Determine when the actions of a the school system’s budget for submis- school board conflict with an applica- sion to the Director, DoD DDESS, for ble statute, regulation, or other guid- his or her approval as endorsed by the ance or when there is a conflict in the school board; and participate in the views of the school board and the Su- oversight of the approved budget, in perintendent. When such conflicts conjunction with the Superintendent, occur, the Director, DoD DDESS, shall as appropriate for operation of the assist the Superintendent and the school arrangement.

257 § 69.5 32 CFR Ch. I (7–1–97 Edition)

(6) Invite the Superintendent or des- view of the school board adversely im- ignee to attend all school board meet- pact the operation of the school system ings. either through the operation and man- (7) Provide counsel to the Super- agement of DoD DDESS or a specific intendent on the operation of the DoD DDESS arrangement. Written for- school and the implementation of the mal appeals with justification and sup- approved budget. porting documentation shall be sub- (8) Channel communications with mitted by the school board or Super- school employees to the DoD DDESS intendent to ASD(FMP). The Superintendent. Refer all applications, ASD(FMP) shall make the final deci- complaints, and other communica- sion on all formal appeals. The Direc- tions, oral or written, to the DoD tor, Dod DDESS, will provide the ap- DDESS Arrangement Superintendents. pealing body written review of the find- (9) Participate in the development of ings relating to the merits of the ap- school policies, rules, and regulations, peal. Formal appeals will be handled in conjunction with the Superintend- expeditiously by all parties to mini- ent, and recommend which policies mize any adverse impact on the oper- shall be reflected in the School Policy ation of the DoD DDESS system. Manual. At a minimum, the Policy (d) Ensure school board operating Manual, which shall be issued by the procedures are as follows: Superintendent, shall include follow- (1) The school board shall operate ing: from a written agenda at all meetings. (i) A statement of the school philoso- Matters not placed on the agenda be- phy. fore the start of the meeting, but ap- (ii) The role and responsibilities of proved by a majority of the school school administrative and educational board present, may be considered at personnel. the ongoing meeting and added to the (iii) Provisions for promulgation of agenda at that time. an annual school calendar. (2) A majority of the total number of (iv) Provisions on instructional serv- school board members authorized shall ices, including policies for development constitute a quorum. and adoption of curriculum and text- (3) School board meetings shall be books. conducted a minimum of 9 times a (v) Regulations affecting students, year. The school board President or including attendance, grading, pro- designee will provide school board motion, retention, and graduation cri- members timely notice of all meetings. teria, and the student code of rights, All regularly scheduled school board responsibilities, and conduct. meetings will be open to the public. (vi) School policy on community re- Executive session meetings may be lations and noninstructional services, closed under 10 U.S.C. 2164(d)(6). including maintenance and custodial (4) The school board shall not be services, food services, and student bound in any way by any action or transportation. statement of an individual member or (vii) School policy and legal limits on group of members of the board except financial operations, including ac- when such action or statement is ap- counting, disbursing, contracting, and proved by a majority of the school procurement; personnel operations, in- board members during a school board cluding conditions of employment, and meeting. labor management regulations; and the (5) School board members are eligible processing of, and response to, com- for reimbursement for official travel in plaints. accordance with the DoD Joint Travel (viii) Procedures providing for new Regulations and guidance issued by the school board member orientation. Director, DoD DDESS. (ix) Any other matters determined by (6) School board members may be re- the school board and the superintend- moved by the ASD (FMP) for derelic- ent to be necessary. tion of duty, malfeasance, or other (10) Under 10 U.S.C. 2164(b)(4)(B), pre- grounds for cause shown. The school pare and submit formal appeals to di- board concerned may recommend such rectives and other guidance that in the removal with a two-thirds majority

258 Office of the Secretary of Defense § 69.6 vote. Before a member may be re- of General Counsel of the Department moved, the member shall be afforded of Defense. due process, to include written notifi- (b) Electorate of the school board. The cation of the basis for the action, re- electorate for each school board seat view of the evidence or documentation shall be composed of parents of the stu- considered by the school board, and an dents attending the school. Each mem- opportunity to respond to the allega- ber of the electorate shall have one tions. vote. (c) Election of school board members. (1) § 69.6 Procedures. To be elected as a member of the (a) Composition of school board. (1) The school board, an individual must be a school board shall recommend to the resident of the military installation in Director, DoD DDESS, the number of which the DoD DDESS arrangement is elected school board voting members, located, or in the case of candidates for which shall be not fewer than 3 and no the Antilles Consolidated School Sys- more than 9, depending upon local tem School Board, be the parent of an needs. The members of the school eligible child currently enrolled in the board shall select by majority vote of school system. Personnel employed by the total number of school board mem- a DoD DDESS arrangement may not bers authorized at the beginning of serve as school board members. each official school board term, one (2) The board shall determine the member to act as President and an- term of office for elected members, not other to act as Vice President. The to exceed 3 years, and the limit on the President and Vice President shall number of terms, if any. If the board each serve for 1 year. The President fails to set these terms by the first day shall preside over school board meet- of the first full month of the school ings and provide leadership for related year, the terms will be set at 3 years, activities and functions. The Vice with a maximum of 2 consecutive President shall serve in the absence of terms. the President. If the position of Presi- (3) When there is a sufficient number dent is vacated for any reason, the Vice of school board vacancies that result in President shall be the President until not having a quorum, which is defined the next regularly scheduled school as a majority of seats authorized, a board election. The resulting vacancy special election shall be called by the in the position of the Vice President DoD DDESS Arrangement Super- shall be filled by the majority vote of intendent or designee. A special elec- all members of the incumbent board. tion is an election that is held between (2) The DoD DDESS Arrangement Su- the regularly scheduled annual school perintendent, or designee, shall serve board election. The nomination and as a non-voting observer to all school election procedures for a special elec- board meetings. The Installation Com- tion shall be the same as those of regu- mander, or designee, shall convey com- larly scheduled school board elections. mand concerns to the school board and Individuals elected by special election the Superintendent and keep the shall serve until the next regularly school board and the Superintendent scheduled school board election. Va- informed of changes and other matters cancies may occur due to the resigna- within the host installation that affect tion, death, removal for cause, trans- school expenditures or operations. fer, or disenrollment of a school board (3) School board members may not member’s child(ren) from the DoD receive compensation for their service DDESS arrangement. on the school board. (4) The board shall determine a (4) Members of the school board may schedule for regular elections. Parents not have any financial interest in any shall have adequate notice of the time company or organization doing busi- and place of the election. The election ness with the school system. Waivers shall be by secret ballot. All votes to this restriction may be granted on a must be cast in person at the time and case-by-case basis by the Director, DoD place of the election. The candidate(s) DDESS, in coordination with the Office receiving the greatest number of votes

259 § 70.1 32 CFR Ch. I (7–1–97 Edition) shall be elected as school board mem- such reviews which are designed to en- ber(s). sure historically consistent uniformity (5) Each candidate for school board in execution of this function, as re- membership must be nominated in quired under Pub. L. 95–126. writing by at least one member of the (c) Assigns responsibility for admin- electorate to be represented by the istering the program. candidate. Votes may be cast at the (d) Makes provisions for public in- time of election for write-in candidates spection, copying, and distribution of who have not filed a nomination peti- DRB documents through the Armed tion if the write-in candidates other- Forces Discharge Review/Correction wise are qualified to serve in the posi- Board Reading Room. tions sought. (e) Establishes procedures for the (6) The election process shall provide preparation of decisional documents staggered terms for board members; and index entries. e.g., on the last day of the last month (f) Provides guidance for processing of each year, the term for some board complaints concerning decisional docu- members will expire. ments and index entries. (7) The DoD DDESS Superintendent, in consultation with the school board, § 70.2 Applicability. shall be responsible for developing the The provisions of this part 70 apply plans for nominating school board to the Office of the Secretary of De- members and conducting the school fense (OSD) and the Military Depart- board election and the special election ments. The terms, ‘‘Military Services,’’ process. The DoD DDESS Superintend- and ‘‘Armed Forces,’’ as used herein, ent shall announce election results refer to the Army, Navy, Air Force and within 7 working days of the election. Marine Corps.

§ 70.3 Definitions. PART 70—DISCHARGE REVIEW (a) Applicant. A former member of the BOARD (DRB) PROCEDURES AND Armed Forces who has been discharged STANDARDS or dismissed administratively in accordance with Military Department Sec. regulations or by sentence of a court- 70.1 Reissuance and purpose. martial (other than a general court- 70.2 Applicability. martial) and under statutory regu- 70.3 Definitions. 70.4 Responsibilities. latory provisions whose application is 70.5 Procedures. accepted by the DRB concerned or 70.6 Information requirements. whose case is heard on the DRB’s own 70.7 Effective date and implementation. motion. If the former member is de- 70.8 Discharge review procedures. ceased or incompetent, the term ‘‘ap- 70.9 Discharge review standards. plicant’’ includes the surviving spouse, 70.10 Complaints concerning decisional doc- next-of-kin, or legal representative uments and index entries. who is acting on behalf of the former 70.11 DoD semiannual report. member. When the term ‘‘applicant’’ is AUTHORITY: 10 U.S.C. 1553 and 38 U.S.C. 101 used in §§ 70.8 through 70.10, it includes and 3103, as amended. the applicant’s counsel or representa- SOURCE: 47 FR 37785, Aug. 26, 1982, unless tive, except that the counsel or rep- otherwise noted. resentative may not submit an application for review, waive the applicant’s § 70.1 Reissuance and purpose. right to be present at a hearing, or ter- This part is reissued and: minate a review without providing the (a) Establishes uniform policies, pro- DRB an appropriate power of attorney cedures, and standards for the review or other written consent of the appli- of discharges or dismissals under 10 cant. U.S.C. 1553. (b) Complainant. A former member of (b) Provides guidelines for discharge the Armed Forces (or the former mem- review by application or on motion of a ber’s counsel) who submits a complaint DRB, and the conduct of discharge re- under § 70.10 with respect to the views and standards to be applied in decisional document issued in the

260 Office of the Secretary of Defense § 70.4 former member’s own case; or a former (i) Hearing. A review involving an ap- member of the Armed Forces (or the pearance before the DRB by the appli- former member’s counsel) who submits cant or on the applicant’s behalf by a a complaint under § 70.10 stating that counsel or representative. correction of the decisional document (j) Hearing Examination. The process will assist the former member in pre- by which a designated officer of a DRB paring for an administrative or judicial prepares a presentation for consider- proceeding in which the former mem- ation by a DRB in accordance with reg- ber’s own discharge will be at issue. ulations prescribed by the Secretary (c) Counsel or Representative. An indi- concerned. vidual or agency designated by the ap- (k) National Capital Region (NCR). The plicant who agrees to represent the ap- District of Columbia; Prince Georges plicant in a case before the DRB. It in- and Montgomery Counties in Mary- cludes, but is not limited to: a lawyer land; Arlington, Fairfax, Loudoun, and who is a member of the bar of a Federal Prince William Counties in Virginia; court or of the highest court of a State; and all cities and towns included with- an accredited representative des- in the outer boundaries of the fore- ignated by an organization recognized going counties. by the Administrator of Veterans Af- (l) President, DRB. A person des- fairs; a representative from a State ignated by the Secretary concerned agency concerned with veterans affairs; and responsible for the supervision of and representatives from private orga- the discharge review function and nizations or local government agen- other duties as assigned. cies. (d) Discharge. A general term used in § 70.4 Responsibilities. this Directive that includes dismissal (a) The Secretaries of the Military De- and separation or release from active partments have the authority for final or inactive military status, and actions decision and the responsibility for the that accomplish a complete severance operation for their respective discharge of all military status. This term also review programs under 10 U.S.C. 1553. includes the assignment of a reason for (b) The Assistant Secretary of Defense such discharge and characterization of (Manpower, Reserve Affairs, and Logis- service (32 CFR part 41). tics) (ASD(MRA&L)) shall: (e) Discharge Review. The process by (1) Resolve all issues concerning which the reason for separation, the DRBs that cannot be resolved among procedures followed in accomplishing the Military Departments. separation, and the characterization of (2) Ensure uniformity among the service are evaluated. This includes de- Military Departments in the rights af- terminations made under the provi- forded applicants in discharge reviews. sions of 38 U.S.C. 3103(e)(2). (3) Modify or supplement the enclo- (f) Discharge Review Board (DRB). An sures to this part. administrative board constituted by (4) Maintain the index of decisions the Secretary of the Military Depart- and provide for timely modification of ment concerned and vested with discre- index categories to reflect changes in tionary authority to review discharges discharge review policies, procedures, and dismissals under the provisions of and standards issued by the OSD and 10 U.S.C. 1553. It may be configured as the Military Departments. one main element or two or more ele- (c) The Secretary of the Army, as the ments as designated by the Secretary designated administrative focal point concerned. for DRB matters, shall: (g) DRB Panel. An element of a DRB, (1) Effect necessary coordination consisting of five members, authorized with other governmental agencies re- by the Secretary concerned to review garding continuing applicability of this discharges and dismissals. part and resolve administrative proce- (h) DRB Traveling or Regional Panel. A dures relating thereto. DRB panel that conducts discharge re- (2) Review suggested modifications to views in a location outside the Na- this part, including implementing doc- tional Capital Region (NCR). uments; monitor the implementing

261 § 70.5 32 CFR Ch. I (7–1–97 Edition) documents of the Military Depart- (b) Use of standard data elements. The ments; resolve differences, when prac- data requirements prescribed by this ticable; recommend specific changes; part shall be consistent with DoD provide supporting rationale to the 5000.12–M, ‘‘DoD Manual for Standard ASD(MRA&L) for decision; and include Data Elements,’’ December 1981. Any appropriate documentation through reference to a date should appear as the Office of the ASD(MRA&L) and the (YYMMDD), while any name entry OSD Federal Register liaison officer to should appear as (Last name, first effect publication in the FEDERAL REG- name, middle initial). ISTER. (3) Maintain the DD Form 293, ‘‘Ap- § 70.7 Effective date and implementa- plication for Review of Discharge or tion. Separation from the Armed Forces of This part is effective immediately for the United States,’’ and republish as the purpose of preparing implementing necessary with appropriate coordina- documents. DoD Directive 1332.28, tion of the other Military Departments March 29, 1978, is officially canceled, ef- and the Office of Management and fective November 27, 1982. This part ap- Budget. plies to all discharge review proceed- (4) Respond to all inquiries from pri- ings conducted on or after November vate individuals, organizations, or pub- 27, 1982. § 70.10 applies to all complaint lic officials with regard to DRB mat- proceedings conducted on or after Sep- ters. When the specific Military Serv- tember 28, 1982. Final action on com- ice can be identified, refer such cor- plaints shall not be taken until Sep- respondence to the appropriate DRB tember 28, 1982, unless earlier correc- for response or designate an appro- tive action is requested expressly by priate activity to perform this task. the applicant (or the applicant’s coun- (5) Provide overall guidance and su- sel) whose case is the subject of the pervision to the Armed Forces Dis- decisional document. If earlier correc- charge Review/Correction Board Read- tive action is requested, it shall be ing Room with staff augmentation, as taken in accordance with § 70.10. required, by the Departments of the Navy and Air Force. § 70.8 Discharge review procedures. (6) Ensure that notice of the location, hours of operation, and similar types of (a) Application for review—(1) General. information regarding the Reading Applications shall be submitted to the Room is published in the FEDERAL REG- appropriate DRB on DD Form 293, ‘‘Ap- ISTER. plication for Review of Discharge or Separation from the Armed Forces of § 70.5 Procedures. the United States,’’ with such other (a) Discharge review procedures are statements, affidavits, or documenta- prescribed in § 70.8. tion as desired. It is to the applicant’s (b) Discharge Review Standards are advantage to submit such documents prescribed in § 70.9 and constitute the with the application or within 60 days basic guidelines for the determination thereafter in order to permit a thor- whether to grant or deny relief in a dis- ough screening of the case. The DD charge review. Form 293 is available at most DoD in- (c) Complaint Procedures about stallations and regional offices of the decisional documents are prescribed in Veterans Administration, or by writing § 70.10. to: DA Military Review Boards Agency, Attention: SFBA (Reading Room), § 70.6 Information requirements. Room 1E520, The Pentagon, Washing- (a) Reporting requirements. (1) The re- ton, DC 20310. porting requirement prescribed in (2) Timing. A motion or request for § 70.8(n) is assigned Report Control review must be made within 15 years Symbol DD–M(SA)1489. after the date of discharge or dismissal. (2) All reports must be consistent (3) Applicant’s responsibilities. An ap- with DoD Directive 5000.11, ‘‘Data Ele- plicant may request a change in the ments and Data Codes Standardization character of or reason for discharge (or Program,’’ December 7, 1964. both).

262 Office of the Secretary of Defense § 70.8

(i) Character of discharge. Block 7 of (i) Submission of issues on DD Form DD Form 293 provides an applicant an 293. Issues must be provided to the DRB opportunity to request a specific on DD Form 293 before the DRB closes change in character of discharge (for the review process for deliberation. example, General Discharge to Honor- (A) Issues must be clear and specific. able Discharge; Other than Honorable An issue must be stated clearly and Discharge to General or Honorable Dis- specifically in order to enable the DRB charge). Only a person separated on or to understand the nature of the issue after 1 October 1982 while in an entry and its relationship to the applicant’s level status may request a change from discharge. Other than Honorable Discharge to (B) Separate listing of issues. Each Entry Level Separation. A request for issue submitted by an applicant should review from an applicant who does not be listed separately. Submission of a have an Honorable Discharge shall be separate statement for each issue pro- treated as a request for a change to an vides the best means of ensuring that Honorable Discharge unless the appli- the full import of the issue is conveyed cant requests a specific change to an- to the DRB. other character of discharge. (C) Use of DD Form 293. DD Form 293 (ii) Reason for discharge. Block 7 of provides applicants with a standard DD Form 293 provides an applicant an format for submitting issues to the opportunity to request a specific DRB, and its use: change in the reason for discharge. If (1) Provides a means for an applicant an applicant does not request a specific to set forth clearly and specifically change in the reason for discharge, the those matters that, in the opinion of DRB shall presume that the request for the applicant, provide a basis for review does not involve a request for changing the discharge; change in the reason for discharge. (2) Assists the DRB in focusing on Under its responsibility to examine the those matters considered to be impor- propriety and equity of an applicant’s tant by an applicant; discharge, the DRB shall change the (3) Assists the DRB in distinguishing reason for discharge if such a change is between a matter submitted by an ap- warranted. plicant in the expectation that it will (iii) The applicant must ensure that be treated as a decisional issue under issues submitted to the DRB are con- paragraph (e) of this section, and those sistent with the request for change in matters submitted simply as back- discharge set forth in block 7 of the DD ground or supporting materials; Form 293. If an ambiguity is created by (4) Provides the applicant with great- a difference between an applicant’s er rights in the event that the appli- issue and the request in block 7, the cant later submits a complaint under DRB shall respond to the issue in the § 70.10(d)(1)(iii) concerning the context of the action requested in decisional document; block 7. In the case of a hearing, the (5) Reduces the potential for dis- DRB shall attempt to resolve the ambi- agreement as to the content of an ap- guity under paragraph (a)(5) of this sec- plicant’s issue. tion. (D) Incorporation by reference. If the (4) Request for consideration of specific applicant makes an additional written issues. An applicant may request the submission, such as a brief, in support DRB to consider specific issues which, of the application, the applicant may in the opinion of the applicant, form a incorporate by reference specific issues basis for changing the character of or set forth in the written submission in reason for discharge, or both. In addi- accordance with the guidance on DD tion to the guidance set forth in this Form 293. The reference shall be spe- section, applicants should consult the cific enough for the DRB to identify other sections in this part (particularly clearly the matter being submitted as paragraphs (c), (d), and (e) of this sec- an issue. At a minimum, it shall iden- tion and §§ 70.9 and 70.10 before submit- tify the page, paragraph, and sentence ting issues for consideration by the incorporated. Because it is to the appli- DRB. cant’s benefit to bring such issues to

263 § 70.8 32 CFR Ch. I (7–1–97 Edition) the DRB’s attention as early as pos- (B) Issues concerning the propriety of a sible in the review, applicants who sub- discharge. An issue of propriety is a mit a brief are strongly urged to set matter that involves a determination forth all such issues as a separate item whether a discharge should be changed at the beginning of the brief. If it rea- under the propriety standards of § 70.9. sonably appears that the applicant in- This includes an applicant’s issue, sub- advertently has failed expressly to in- mitted in accordance with paragraph corporate an issue which the applicant (a)(4)(i) of this section, in which the ap- clearly identifies as an issue to be ad- plicant’s position is that the discharge dressed by the DRB, the DRB shall re- must be changed because of an error in spond to such an issue under para- the discharge pertaining to a regula- graphs (d) and (e) of this section. tion, statute, constitutional provision, (E) Effective date of the new Form DD or other source of law (including a 293. With respect to applications re- matter that requires a determination ceived before November 27, 1982, the whether, under the circumstances of DRB shall consider issues clearly and the case, action by military authorities specifically stated in accordance with was arbitrary, capricious, or an abuse the rules in effect at the time of sub- of discretion). Although a numerical mission. With respect to applications reference to the regulation or other received on or after November 27, 1982, sources of law alleged to have been vio- if the applicant submits an obsolete DD lated is not necessarily required, the Form 293, the DRB shall accept the ap- context of the regulation or a descrip- plication, but shall provide the appli- tion of the procedures alleged to have cant with a copy of the new form and been violated normally must be set advise the applicant that it will only forth in order to inform the DRB ade- respond to issues submitted on the new quately of the basis for the applicant’s form in accordance with this part. position. (C) The applicant’s identification of an (ii) Relationship of issues to character issue. The applicant is encouraged, but of or reason for discharge. If the applica- not required, to identify an issue as tion applies to both character of and pertaining to the propriety or the eq- reason for discharge, the applicant is uity to the discharge. This will assist encouraged, but not required, to iden- the DRB in assessing the relationship tify the issue as applying to the char- of the issue to propriety or equity acter of or reason for discharge (or under paragraph (e)(1)(iii) of this sec- both). Unless the issue is directed at tion. the reason for discharge expressly or (iv) Citation of matter from decisions. by necessary implication, the DRB will The primary function of the DRB in- presume that it applies solely to the volves the exercise of dicretion on a character of discharge. case-by-case basis. See § 70.9(b)(3). Ap- (iii) Relationship of issues to the stand- plicants are not required to cite prior ards for discharge review. The DRB re- decisions as the basis for a change in views discharges on the basis of issues discharge. If the applicant wishes to of propriety and equity. The standards bring the DRB’s attention to a prior used by the DRB are set forth in § 70.9. decision as background or illustrative The applicant is encouraged to review material, the citation should be placed those standards before submitting any in a brief or other supporting docu- issue upon which the applicant believes ments. If, however, it is the applicant’s a change in discharge should be based. intention to submit an issue that sets (A) Issues concerning the equity of the forth specific principles and facts from discharge. An issue of equity is a mat- a specific cited decision, the following ter that involves a determination requirements apply with respect to ap- whether a discharge should by changed plications received on or after Novem- under the equity standards of § 70.9. ber 27, 1982. This includes any issue, submitted by (A) The issue must be set forth or ex- the applicant in accordance with para- pressly incorporated in the ‘‘Appli- graph (a)(4)(i) of this section, that is cant’s Issue’’ portion of DD Form 293. addressed to the discretionary author- (B) If an applicant’s issue cites a ity of the DRB. prior decision (of the DRB, another

264 Office of the Secretary of Defense § 70.8

Board, an agency, or a court), the ap- (D) Prevents the DRB from present- plicant shall describe the specific prin- ing an applicant with a list of proposed ciples and facts that are contained in decisional issues and written informa- the prior decision and explain the rel- tion concerning the right of the appli- evance of cited matter to the applicant to add to, amend, or withdraw the cant’s case. applicant’s submission. The written in- (C) To ensure timely consideration of formation will state that the appli- principles cited from unpublished opin- cant’s decision to take such action (or ions (including decisions maintained decline to do so) will not be used by the Armed Forces Discharge Review against the applicant in the consider- Board/Corrective Board Reading ation of the case. Room), applicants must provide the (iii) Additional issues identified during DRB with copies of such decisions or of a hearing. The following additional pro- the relevant portion of the treatise, cedure shall be used during a hearing manual, or similar source in which the in order to promote the DRB’s under- principles were discussed. At the appli- standing of an applicant’s presen- cant’s request, such materials will be tation. If, before closing the case for returned. deliberation, the DRB believes that an (D) If the applicant fails to comply applicant has presented an issue not with the requirements in paragraphs listed on DD Form 293, the DRB may so (a)(4)(iv) (A), (B), and (C), the inform the applicant, and the applicant decisional document shall note the de- may submit the issue in writing or add fect, and shall respond to the issue additional written issues at that time. without regard to the citation. This does not preclude the DRB from (5) Identification by the DRB of issues developing its own decisional issues. submitted by an applicant. The appli- (6) Notification of possible bar to bene- cant’s issues shall be identified in ac- fits. Written notification shall be made cordance with this section after a re- to each applicant whose record indi- view of the materials noted under para- cates a reason for discharge that bars graph (c)(4), is made. receipt of benefits under 38 U.S.C. (i) Issues on DD Form 293. The DRB 3103(a). This notification will advise shall consider all items submitted as the applicant that separate action by issues by an applicant on DD Form 293 the Board for Correction of Military or (or incorporated therein) in accordance Naval Records or the Veterans Admin- with paragraph (a)(4)(i). With respect istration may confer eligibility for VA to applications submitted before No- benefits. Regarding the bar to benefits vember 27, 1982, the DRB shall consider based upon the 180 days consecutive all issues clearly and specifically stat- unauthorized absence, the following ap- ed in accordance with the rules in ef- plies: fect at the time of the submission. (i) Such absence must have been in- (ii) Amendment of issues. The DRB cluded as part of the basis for the ap- shall not request or instruct an appli- plicant’s discharge under other than cant to amend or withdraw any matter honorable conditions. submitted by the applicant. Any (ii) Such absence is computed with- amendment or withdrawal of an issue out regard to the applicant’s normal or by an applicant shall be confirmed in adjusted expiration of term of service. writing by the applicant. Nothing in (b) Conduct of reviews. (1) Members. As this provision: designated by the Secretary concerned, (A) Limits the DRB’s authority to the DRB and its panels, if any, shall question an applicant as to the mean- consist of five members. One member ing of such matter; of the DRB shall be designated as the (B) Precludes the DRB from develop- president and may serve as a presiding ing decisional issues based upon such officer. Other officers may be des- questions; ignated to serve as presiding officers (C) Prevents the applicant from for DRB panels under regulations pre- amending or withdrawing such matter scribed by the Secretary concerned. any time before the DRB closes the re- (2) Locations. Reviews by a DRB will view process for deliberation; or be conducted in the NCR and such

265 § 70.8 32 CFR Ch. I (7–1–97 Edition) other locations as designated by the ing application shall be returned to the Secretary concerned. applicant with the option to resubmit (3) Types of review. An applicant, when the case is fully ready for review. upon request, is entitled to: (ii) Postponements of scheduled re- (i) Record review. A review of the ap- views normally shall not be permitted plication, available service records, other than for demonstrated good and and additional documents (if any) sub- sufficient reason set forth by the appli- mitted by the applicant. cant in a timely manner, or for the (ii) Hearing. A review involving an convenience of the government. appearance before the DRB by the ap- (8) Reconsideration. A discharge re- plicant or counsel or representative (or view shall not be subject to reconsider- both). ation except: (4) Applicant’s expenses. Unless other- (i) When the only previous consider- wise specified by law or regulation, ex- ation of the case was on the motion of penses incurred by the applicant, wit- the DRB; nesses, counsel or representative will (ii) When the original discharge re- not be paid by the Department of De- view did not involve a hearing and a fense. hearing is now desired, and the provi- (5) Withdrawal of application. An ap- sions of paragraph (b)(6) of this section plicant shall be permitted to withdraw do not apply; an application without prejudice at (iii) When changes in discharge pol- any time before the scheduled review. icy are announced after an earlier re- (6) Failure to appear at a hearing or review of an applicant’s discharge, and spond to a scheduling notice. (i) Except the new policy is made expressly retro- as otherwise authorized by the Sec- active; retary concerned, further opportunity (iv) When the DRB determines that for a hearing shall not be made avail- policies and procedures under which able in the following circumstances to the applicant was discharged differ in an applicant who has requested a hear- material respects from policies and ing: procedures currently applicable on a (A) When the applicant has been sent Service-wide basis to discharges of the a letter containing the month and loca- type under consideration, provided tion of a proposed hearing and fails to that such changes in policies or proce- make a timely response; or dures represent a substantial enhance- (B) When the applicant, after being ment of the rights afforded a respond- notified by letter of the time and place ent in such proceedings; of the hearing, fails to appear at the (v) When an individual is to be rep- appointed time, either in person or by resented by a counsel or representa- representative, without having made a tive, and was not so represented in any prior, timely request for a continu- previous consideration of the case by ation, postponement, or withdrawal. the DRB; (ii) In such cases, the applicant shall (vi) When the case was not previously be deemed to have waived the right to considered under uniform standards a hearing, and the DRB shall complete published pursuant to Pub. L. 95–126 its review of the discharge. Further re- and such application is made within 15 quest for a hearing shall not be granted years after the date of discharge; or unless the applicant can demonstrate (vii) On the basis of presentation of that the failure to appear or respond new, substantial, relevant evidence not was due to circumstances beyond the available to the applicant at the time applicant’s control. of the original review. The decision (7) Continuance and postponements. (i) whether evidence offered by an appli- A continuance of a discharge review cant in support of a request for recon- hearing may be authorized by the sideration is in fact new, substantial, president of the DRB or presiding offi- relevant, and was not available to the cer of the panel concerned, provided applicant at the time of the original that such continuance is of reasonable review will be based on a comparison of duration and is essential to achieving a such evidence with the evidence con- full and fair hearing. When a proposal sidered in the previous discharge re- for continuance is indefinite, the pend- view. If this comparison shows that the

266 Office of the Secretary of Defense § 70.8 evidence submitted would have had a office, or activity to which the request probable effect on matters concerning should be submitted. the propriety or equity of the dis- (iii) If the official records relevant to charge, the request for reconsideration the discharge review are not available shall be granted. at the agency having custody of the (9) Availability of records and docu- records, the applicant shall be so noti- ments. (i) Before applying for discharge fied and requested to provide such in- review, potential applicants or their formation and documents as may be designated representatives may obtain desired in support of the request for copies of their military personnel discharge review. A period of not less records by submitting a General Serv- than 30 days shall be allowed for such ices Administration Standard Form documents to be submitted. At the ex- 180, ‘‘Request Pertaining to Military piration of this period, the review may Records,’’ to the National Personnel be conducted with information avail- Records Center (NPRC), 9700 Page Bou- able to the DRB. levard, St. Louis, MO 62132. Once the (iv) A DRB may take steps to obtain application for discharge review (DD additional evidence that is relevant to Form 293) is submitted, an applicant’s the discharge under consideration beyond that found in the official military military records are forwarded to the records or submitted by the applicant, DRBs where they cannot be repro- if a review of available evidence sug- duced. Submission of a request for an gests that it would be incomplete with- applicant’s military records, including out the additional information, or a request under the Freedom of Infor- when the applicant presents testimony mation Act (32 CFR part 286) or Pri- or documents that require additional vacy Act (32 CFR part 286a) after the information to evaluate properly. Such DD Form 293 has been submitted, shall information shall be made available to result automatically in the temporary the applicant, upon request, with ap- suspension of processing of the applica- propriate modifications regarding clas- tion for discharge review until the re- sified material. quested records are sent to an appro- (A) In any case heard on request of priate location for copying, are copied, an applicant, the DRB shall provide the and are returned to the headquarters of applicant and counsel or representa- the DRB. Processing of the application tive, if any, at a reasonable time before shall then be resumed at whatever initiating the decision process, a notice stage of the discharge review process is of the availability of all regulations practicable. Applicants are encouraged and documents to be considered in the to submit any request for their mili- discharge review, except for documents tary records before applying for dis- in the official personnel or medical charge review rather than after sub- records and any documents submitted mitting DD Form 293, to avoid delays by the applicant. The DRB shall also in processing of applications and sched- notify the applicant or counsel or rep- uling of reviews. Applicants and their resentative: counsel also may examine their mili- (1) Of the right to examine such docu- tary personnel records at the site of ments or to be provided with copies of their scheduled review before the hear- the documents upon request; ing. DRBs shall notify applicants of the (2) Of the date by which such re- dates the records are available for ex- quests must be received; and amination in their standard scheduling (3) Of the opportunity to respond information. within a reasonable period of time to (ii) If the DRB is not authorized to be set by the DRB. provide copies of documents that are (B) When necessary to acquaint the under the cognizance of another gov- applicant with the substance of a clas- ernment department, office, or activ- sified document, the classifying au- ity, applications for such information thority, on the request of the DRB, must be made by the applicant to the shall prepare a summary of or an ex- cognizant authority. The DRB shall ad- tract from the document, deleting all vise the applicant of the mailing ad- references to sources of information dress of the government department, and other matters, the disclosure of

267 § 70.8 32 CFR Ch. I (7–1–97 Edition) which, in the opinion of the classifying (v) Applicants who present sworn or authority, would be detrimental to the unsworn statements and witnesses may national security interests of the Unit- be questioned by the DRB. All testi- ed States. Should preparation of such mony shall be taken under oath or af- summary be deemed impracticable by firmation unless the applicant specifi- the classifying authority, information cally requests to make an unsworn from the classified sources shall not be statement. considered by the DRB in its review of (vi) There is a presumption of regu- the case. larity in the conduct of governmental (v) Regulations of a Military Depart- affairs. This presumption can be ap- ment may be obtained at many instal- plied in any review unless there is sub- lations under the jurisdiction of the stantial credible evidence to rebut the Military Department concerned or by presumption. writing to the following address: DA (c) Decision process. (1) The DRB or Military Review Boards Agency, Atten- tion: SFBA (Reading Room), room the DRB panel, as appropriate, shall 1E520, Washington, DC 20310. meet in plenary session to review dis- (10) Recorder/Secretary or Assistant. charges and exercise its discretion on a Such a person shall be designated to case-by-case basis in applying the assist in the functioning of each DRB standards set forth in § 70.9. in accordance with the procedures pre- (2) The presiding officer is respon- scribed by the Secretary of the Mili- sible for the conduct of the discharge tary Department concerned. review. The presiding officer shall con- (11) Hearings. Hearings (including vene, recess, and adjourn the DRB hearing examinations) that are con- panel as appropriate and shall main- ducted shall recognize the rights of the tain an atmosphere of dignity and de- individual to privacy. Accordingly, corum at all times. presence at hearings of individuals (3) Each DRB member shall act under other than those required shall be lim- oath or affirmation requiring careful, ited to persons authorized by the Sec- objective consideration of the applica- retary concerned or expressly re- tion. DRB members are responsible for quested by the applicant, subject to eliciting all facts necessary for a full reasonable limitations based upon and fair hearing. They shall consider available space. If, in the opinion of the all information presented to them by presiding officer, the presence of other the applicant. In addition, they shall individuals could be prejudicial to the consider available Military Service and interests of the applicant or the gov- health records, together with other ernment, hearings may be held in records that may be in the files of the closed session. Military Department concerned and (12) Evidence and testimony. (i) The relevant to the issues before the DRB, DRB may consider any evidence ob- and any other evidence obtained in ac- tained in accordance with this part. cordance with this part. (ii) Formal rules of evidence shall not be applied in DRB proceedings. The (4) The DRB shall identify and ad- presiding officer shall rule on matters dress issues after a review of the fol- of procedure and shall ensure that rea- lowing material obtained and presented sonable bounds of relevancy and mate- in accordance with this part and the riality are maintained in the taking of implementing instructions of the DRB: evidence and presentation of witnesses. Available official records, documentary (iii) Applicants undergoing hearings evidence submitted by or on behalf of shall be permitted to make sworn or an applicant, presentation of a hearing unsworn statements, if they so desire, examination, testimony by or on behalf or to introduce witnesses, documents, of an applicant, oral or written argu- or other information on their behalf, at ments presented by or on behalf of an no expense to the Department of De- applicant, and any other relevant evi- fense. dence. (iv) Applicants may also make oral (5) If an applicant who has requested or written arguments personally or a hearing does not respond to a notifi- through counsel or representatives. cation letter or does not appear for a

268 Office of the Secretary of Defense § 70.8 scheduled hearing, the DRB may com- (ii) Address decisional issues under plete the review on the basis of mate- paragraph (e) of this section; and rial previously submitted. (iii) Prepare a decisional document in (6) Application of standards. (i) When a accordance with paragraph (h) of this DRB determines that an applicant’s section. discharge was improper (§ 70.9(b)), the (d) Response to items submitted as is- DRB will determine which reason for sues by the applicant—(1) General guid- discharge should have been assigned ance. (i) If an issue submitted by an ap- based upon the facts and circumstances plicant contains two or more clearly before the discharge authority, includ- separate issues, the DRB should re- ing the Service regulations governing spond to each issue under the guidance reasons for discharge at the time the of this paragraph as if it had been set applicant was discharged. Unless it is forth separately by the applicant. also determined that the discharge was (ii) If an applicant uses a ‘‘building inequitable (§ 70.9(c)), the provisions as block’’ approach (that is, setting forth to characterization in the regulation a series of conclusions on issues that under which the applicant should have lead to a single conclusion purportedly been discharged will be considered in warranting a change in the applicant’s determining whether further relief is discharge), normally there should be a warranted. separate response to each issue. (ii) When the DRB determines that (iii) Nothing in this paragraph pre- an applicant’s discharge was inequi- cludes the DRB from making a single table (see § 70.9(c)), any change will be response to multiple issues when such based on the evaluation of the appli- action would enhance the clarity of the cant’s overall record of service and rel- decisional document, but such response evant regulations of the Military Serv- must reflect an adequate response to ice of which the applicant was a mem- each separate issue. (2) Decisional issues. An item submit- ber. ted as an issue by an applicant in ac- (7) Voting shall be conducted in cordance with this part shall be ad- closed session, a majority of the five dressed as a decisional issue under members’ votes constituting the DRB paragraph (e), in the following cir- decision. Voting procedures shall be cumstances: prescribed by the Secretary of the Mili- (i) When the DRB decides that a tary Department concerned. change in discharge should be granted, (8) Details of closed session delibera- and the DRB bases its decision in tions of a DRB are privileged informa- whole or in part on the applicant’s tion and shall not be divulged. issue; or (9) There is no requirement for a (ii) When the DRB does not provide statement of minority views in the the applicant with the full change in event of a split vote. The minority, discharge requested, and the decision is however, may submit a brief statement based in whole or in part on the DRB’s of its views under procedures estab- disagreement on the merits with an lished by the Secretary concerned. issue submitted by the applicant. (10) DRBs may request advisory opin- (3) Response to items not addressed as ions from staff officers of their Mili- decisional issues. (i) If the applicant retary Departments. These opinions are ceives the full change in discharge re- advisory in nature and are not binding quested (or a more favorable change), on the DRB in its decision-making that fact shall be noted and the basis process. shall be addressed as a decisional issue. (11) The preliminary determinations No further response is required to required by 38 U.S.C. 3103(e) shall be other issues submitted by the appli- made upon majority vote of the DRB cant. concerned on an expedited basis. Such (ii) If the applicant does not receive determination shall be based upon the the full change in discharge requested standards set forth in § 70.9 of this part. with respect to either the character of (12) The DRB shall: (i) Address items or reason for discharge (or both), the submitted as issues by the applicant DRB shall address the items submitted under paragraph (d) of this section; by the applicant under paragraph (e) of

269 § 70.8 32 CFR Ch. I (7–1–97 Edition) this section (decisional issues) unless respond because the item is not spe- one of the following responses is appli- cific. cable: (e) Decisional issues. (1) General. Under (A) Duplicate issues. The DRB may the guidance in this section, the state that there is a full response to decisional document shall discuss the the issue submitted by the applicant issues that provide a basis for the deci- under a specified decisional issue. This sion whether there should be a change response may be used only when one in the character of or reason for dis- issue clearly duplicates another or the charge. In order to enhance clarity, the issue clearly requires discussion in con- DRB should not address matters other junction with another issue. than issues relied upon in the decision (B) Citations without principles and or raised by the applicant. facts. The DRB may state that the ap- (i) Partial change. When the decision plicant’s issue, which consists of a cita- changes a discharge, but does not pro- tion to a decision without setting forth vide the applicant with the full change any principles and facts from the deci- in discharge requested, the decisional sion that the applicant states are rel- document shall address both the issues evant to the applicant’s case, does not upon which change is granted and the comply with the requirements of para- issues upon which the DRB denies the graph (a)(4)(iv)(A). full change requested. (ii) Relationship of issue to character of (C) Unclear issues. The DRB may state or reason for discharge. Generally, the that it cannot respond to an item sub- decisional document should specify mitted by the applicant as an issue be- whether a decisional issue applies to cause the meaning of the item is un- the character of or reason for discharge clear. An issue is unclear if it cannot (or both), but it is not required to do be understood by a reasonable person so. familiar with the discharge review (iii) Relationship of an issue to propri- process after a review of the materials ety or equity. (A) If an applicant identi- considered under paragraph (c)(4) of fies an issue as pertaining to both pro- this section. priety and equity, the DRB will con- (D) Nonspecific issues. The DRB may sider it under both standards. state that it cannot respond to an item (B) If an applicant identifies an issue submitted by the applicant as an issue as pertaining to the propriety of the because it is not specific. A submission discharge (for example, by citing a pro- is considered not specific if a reason- priety standard or otherwise claiming able person familiar with the discharge that a change in discharge is required review process after a review of the as a matter of law), the DRB shall con- materials considered under paragraph sider the issue solely as a matter of (c)(4) of this section, cannot determine propriety. Except as provided in para- the relationship between the appli- graph (e)(1)(iii)(D) of this section, the cant’s submission and the particular DRB is not required to consider such circumstances of the case. This re- an issue under the equity standards. sponse may be used only if the submis- (C) If the applicant’s issue contends sion is expressed in such general terms that the DRB is required as a matter of that no other response is applicable. law to follow a prior decision by set- For example, if the DRB disagrees with ting forth an issue of propriety from the applicant as to the relevance of the prior decision and describing its re- matters set forth in the submission, lationship to the applicant’s case, the the DRB normally will set forth the issue shall be considered under the pro- nature of the disagreement under the priety standards and addressed under guidance in paragraph (e) of this sec- paragraph (e)(2) or (e)(3) of this section. tion, with respect to decisional issues, (D) If the applicant’s issue sets forth or it will reject the applicant’s position principles of equity contained in a on the basis of paragraphs (d)(3)(ii)(A) prior DRB decision, describes the rela- or (d)(3)(ii)(B) of this section. If the ap- tionship to the applicant’s case, and plicant’s submission is so general that contends that the DRB is required as a none of those provisions is applicable, matter of law to follow the prior case, then the DRB may state that it cannot the decisional document shall note

270 Office of the Secretary of Defense § 70.8 that the DRB is not bound by its dis- tion of the character of and reason for cretionary decisions in prior cases the applicant’s discharge, the DRB under the standards in § 70.9. However, shall make a finding of fact for each the principles cited by the applicant, such event or circumstance. and the description of the relationship (1) For each such finding, the of the principles to the applicant’s decisional document shall list the spe- case, shall be considered under the eq- cific source of the information relied uity standards and addressed under upon. This may include the presump- paragraph (e)(5) or (e)(6) of this section. tion of regularity in appropriate cases. (E) If the applicant’s issue cannot be If the information is listed in the serv- identified as a matter of propriety or ice record section of the decisional doc- equity, the DRB shall address it as an ument, a citation is not required. issue of equity. (2) If a finding of fact is made after (2) Change of discharge: issues of pro- consideration of contradictory evi- priety. If a change in the discharge is dence in the record (including informa- warranted under the propriety stand- tion cited by the applicant or other- ards in § 70.9 the decisional document wise identified by members of the shall state that conclusion and list the DRB), the decisional document shall errors of expressly retroactive changes set forth the conflicting evidence and in policy that provide a basis for the explain why the information relied conclusion. The decisional document upon was more persuasive than the in- shall cite the facts in the record that formation that was rejected. If the pre- demonstrate the relevance of the error sumption of regularity is cited as the or change in policy to the applicant’s basis for rejecting such information, case. If the change in discharge does the decisional document shall set forth not constitute the full change re- the basis for relying on the presump- quested by the applicant, the reasons tion of regularity and explain why the for not granting the full change shall contradictory evidence was insufficient be addressed under the guidance in to overcome the presumption. In an ap- paragraph (e)((3) or (e)(6) of this sec- propriate case, the explanation as to tion. why the contradictory evidence was in- (3) Denial of the full change requested: sufficient to overcome the presumption issues of propriety. (i) If the decision re- of regularity may consist of a state- jects the applicant’s position on an ment that the applicant failed to pro- issue of propriety, or if it is otherwise vide sufficient corroborating evidence, decided on the basis of an issue of pro- or that the DRB did not find the appli- priety that the full change in discharge cant’s testimony to be sufficiently requested by the applicant is not war- credible to overcome the presumption. ranted, the decisional document shall (C) If the DRB disagrees with the po- note that conclusion. sition of the applicant on an issue of (ii) The decisional document shall propriety, the following guidance ap- list reasons for its conclusion on each plies in addition to the guidance in issue of propriety under the following paragraphs (e)(3)(ii) (A) and (B) of this guidance: section: (A) If a reason is based in whole or in (1) The DRB may reject the appli- part upon a regulation, statute, con- cant’s position by explaining why it stitutional provision, judicial deter- disagrees with the principles set forth mination, or other source of law, the in the applicant’s issue (including prin- DRB shall cite the pertinent source of ciples derived from cases cited by the law and the facts in the record that applicant in accordance with paragraph demonstrate the relevance of the (e)(4)(iv) of this section). source of law to the particular cir- (2) The DRB may reject the appli- cumstances in the case. cant’s position by explaining why the (B) If a reason is based in whole or in principles set forth in the applicant’s part on a determination as to the oc- issue (including principles derived from currence or nonoccurrence of an event cases cited by the applicant in accord- or circumstance, including a factor re- ance with paragraph (a)(4)(iv) of this quired by applicable Service regula- section) are not relevant to the appli- tions to be considered for determina- cant’s case.

271 § 70.8 32 CFR Ch. I (7–1–97 Edition)

(3) The DRB may reject an appli- (4) Denial of the full change in dis- cant’s position by stating that the ap- charge requested when propriety is not at plicant’s issue of propriety is not a issue. If the applicant has not submit- matter upon which the DRB grants a ted an issue of propriety and the DRB change in discharge, and by providing has not otherwise relied upon an issue an explanation for this position. When of propriety to change the discharge, the applicant indicates that the issue the decisional document shall contain is to be considered in conjunction with a statement to that effect. The DRB is one or more other specified issues, the not required to provide any further dis- explanation will address all such speci- cussion as to the propriety of the dis- fied issues. charge. (4) The DRB may reject the appli- (5) Change of discharge: issues of eq- cant’s position on the grounds that uity. If the DRB concludes that a other specified factors in the case pre- change in the discharge is warranted clude granting relief, regardless of under the equity standards in § 70.9 the whether the DRB agreed with the ap- decisional document shall list each plicant’s position. (5) If the applicant takes the position issue of equity upon which this conclu- that the discharge must be changed be- sion is based. The DRB shall cite the cause of an alleged error in a record as- facts in the record that demonstrate sociated with the discharge, and the the relevance of the issue to the appli- record has not been corrected by the cant’s case. If the change in discharge organization with primary responsibil- does not constitute the full change re- ity for corrective action, the DRB may quested by the applicant, the reasons respond that it will presume the valid- for not giving the full change requested ity of the record in the absence of such shall be discussed under the guidance corrective action. If the organization in paragraph (e)(6) of this section. empowered to correct the record is (6) Denial of the full change in dis- within the Department of Defense, the charge requested: issues of equity. (i) If DRB should provide the applicant with the DRB rejects the applicant’s posi- a brief description of the procedures for tion on an issue of equity, or if the de- requesting correction of the record. If cision otherwise provides less than the the DRB on its own motion cites this full change in discharge requested by issue as a decisional issue on the basis the applicant, the decisional document of equity, it shall address the issue shall note that conclusion. under paragraph (d)(5) or (d)(6) of this (ii) The DRB shall list reasons for its section. conclusion on each issue of equity (6) When an applicant’s issue con- under the following guidance: tains a general allegation that a cer- (A) 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 DRB may re- stitutional provision, judicial deter- spond in appropriate cases by noting mination, or other source of law, the that the action was consistent with statutory or regulatory authority, and DRB shall cite the pertinent source of by citing the presumption of constitu- law and the facts in the record that tionality that attaches to statutes and demonstrate the relevance of the regulations. If, on the other hand, the source of law to the exercise of discre- applicant makes a specific challenge to tion on the issue of equity in the appli- the constitutionality of the action by cant’s case. challenging the application of a stat- (B) If a reason is based in whole or in ute or regulation in a particular set of part on a determination as to the oc- circumstances, it is not sufficient to currence or nonoccurrence of an event respond solely by citing the presump- or circumstance, including a factor re- tion of constitutionality of the statute quired by applicable Service regula- or regulation when the applicant is not tions to be considered for determina- challenging the constitutionality of tion of the character of and reason for the statute or regulation. Instead, the the applicant’s discharge, the DRB response must address the specific cir- shall make a finding of fact for each cumstances of the case. such event or circumstance.

272 Office of the Secretary of Defense § 70.8

(1) For each such finding, the be considered in conjunction with decisional document shall list the spe- other specified issues, the explanation cific source of the information relied will address all such specified issues. upon. This may include the presump- (4) The DRB may reject the appli- tion of regularity in appropriate cases. cant’s position on the grounds that If the information is listed in the serv- other specified factors in the case pre- ice record section of the decisional doc- clude granting relief, regardless of ument, a citation is not required. whether the DRB agreed with the ap- (2) If a finding of fact is made after plicant’s position. consideration of contradictory evi- (5) If the applicant takes the position dence in the record (including informa- that the discharge should be changed tion cited by the applicant or other- as a matter of equity because of an al- wise identified by members of the leged error in a record associated with DRB), the decisional document shall the discharge, and the record has not set forth the conflicting evidence and been corrected by the organization explain why the information relied with primary responsibility for correc- upon was more persuasive than the in- tive action, the DRB may respond that formation that was rejected. If the pre- it will presume the validity of the sumption of regularity is cited as the record in the absence of such corrective basis for rejecting such information, action. However, the DRB will consider the decisional document shall set forth whether it should exercise its equitable the basis for relying on the presump- powers to change the discharge on the tion of regularity and explain why the basis of the alleged error. If it declines contradictory evidence was insufficient to do so, it shall explain why the appli- to overcome the presumption. In an ap- cant’s position did not provide a suffi- propriate case, the explanation as to cient basis for the change in the dis- why the contradictory evidence was in- charge requested by the applicant. sufficient to overcome the presumption (D) When the DRB concludes that ag- of regularity may consist of a state- gravating factors outweigh mitigating ment that the applicant failed to pro- factors, the DRB must set forth rea- vide sufficient corroborating evidence, sons such as the seriousness of the of- or that the DRB did not find the appli- fense, specific circumstances surround- cant’s testimony to be sufficiently ing the offense, number of offenses, credible to overcome the presumption. lack of mitigating circumstances, or (C) If the DRB disagrees with the po- similar factors. The DRB is not re- sition of the applicant on an issue of quired, however, to explain why it re- equity, the following guidance applies lied on any such factors unless the ap- in addition to the guidance in para- plicability or weight of such a factor is graphs (e)(6)(ii) (A) and (B) of this sec- expressly raised as an issue by the ap- tion: plicant. (1) The DRB may reject the appli- (E) If the applicant has not submit- cant’s position by explaining why it ted any issues and the DRB has not disagrees with the principles set forth otherwise relied upon an issue of eq- in the applicant’s issue (including prin- uity for a change in discharge, the ciples derived from cases cited by the decisional document shall contain a applicant in accordance with paragraph statement to that effect, and shall note (a)(4)(iv) of this section). that the major factors upon which the (2) The DRB may reject the appli- discharge was based are set forth in the cant’s position by explaining why the service record portion of the decisional principles set forth in the applicant’s document. issue (including principles derived from (f) The recommendation of the DRB cases cited by the applicant) are not President—(1) General. The president of relevant to the applicant’s case. the DRB may forward cases for consid- (3) The DRB may reject an appli- eration by the Secretarial Reviewing cant’s position by explaining why the Authority (SRA) under rules estab- applicant’s issue is not a matter upon lished by the Secretary concerned. which the DRB grants a change in dis- There is no requirement that the Presi- charge as a matter of equity. When the dent submit a recommendation when a applicant indicates that the issue is to case is forwarded to the SRA. If the

273 § 70.8 32 CFR Ch. I (7–1–97 Edition) president makes a recommendation the Secretary concerned or the official with respect to the character of or rea- to whom Secretary’s discharge review son for discharge, however, the rec- authority has been delegated. ommendation shall be prepared under (i) The SRA may review the following the guidance in paragraph (f)(2) of this types of cases before issuance of the section. final notification of a decision: (2) Format for recommendation. If a (A) Any specific case in which the recommendation is provided, it shall SRA has an interest. contain the president’s views whether (B) Any specific case that the presi- there should be a change in the char- dent of the DRB believes is of signifi- acter of or reason for discharge (or cant interest to the SRA. both). If the president recommends (ii) Cases reviewed by the SRA shall such a change, the particular change to be considered under the standards set be made shall be specified. The rec- forth in § 70.9. ommendation shall set forth the presi- (2) Processing the decisional document. dent’s position on decisional issues and issues submitted by the applicant (i) The decisional document shall be under the following guidance: transmitted by the DRB president (i) Adoption of the DRB’s decisional under paragraph (e) of this section. document. The recommendation may (ii) The following guidance applies to state that the president has adopted cases that have been forwarded to the the decisional document prepared by SRA except for cases reviewed on the the majority. The president shall en- DRB’s own motion without the partici- sure that the decisional document pation of the applicant or the appli- meets the requirements of this section. cant’s counsel: (ii) Adoption of the specific statements (A) The applicant and counsel or rep- from the majority. If the President resentative, if any, shall be provided adopts the views of the majority only with a copy of the proposed decisional in part, the recommendation shall cite document, including the DRB presi- the specific matter adopted from the dent’s recommendation to the SRA, if majority. If the president modifies a any. Classified information shall be statement submitted by the majority, summarized. the recommendation shall set forth the (B) The applicant shall be provided modification. with a reasonable period of time, but (iii) Response to issues not included in not less than 25 days, to submit to the matter adopted from the majority. The SRA a rebuttal. An issue in rebuttal recommendation shall set forth the fol- consists of a clear and specific state- lowing if not adopted in whole or in ment by the applicant in support of or part from the majority: in opposition to the statements of the (A) The issues on which the presi- DRB or DRB president on decisional is- dent’s recommendation is based. Each sues and other clear and specific issues such decisional issue shall be addressed that were submitted by the applicant by the president under paragraph (e) of in accordance with paragraph (a)(4)(i) this section, of this section. The rebuttal shall be (B) The president’s response to items based solely on matters in the record submitted as issues by the applicant before when the DRB closed the case under paragraph (d) of this section. for deliberation or in the president’s (C) Reasons for rejecting the conclu- recommendation. sions of the majority with respect to (3) Review of the decisional document. decisional issues which, if resolved in If corrections in the decisional docu- 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 DRB for cant than that afforded by the presi- corrective action. The corrected dent’s recommendation. Suh issues decisional document shall be sent to shall be addressed under the principles the applicant (and counsel, if any), but in paragraph (e) of this section. a further opportunity for rebuttal is (g) Secretarial reviewing authority not required unless the correction pro- (SRA)—(1) Review by the SRA. The Sec- duces a different result or includes a retarial Reviewing Authority (SRA) is substantial change in the discussion by

274 Office of the Secretary of Defense § 70.8 the DRB (or DRB president) of the is- the DRB president with respect to sues raised by the majority or the ap- decisional issues which, if resolved in plicant. the applicant’s favor, would have re- (4) The Addendum of the SRA. The de- sulted in change to the discharge more cision of the SRA shall be in writing favorable to the applicant than that af- and shall be appended as an addendum forded by the SRA’s decision. Such is- to the decisional document under the sues shall be addressed under the prin- guidance in this subsection. ciples in paragraph (e) of this section. (i) The SRA’s decision. The addendum (2) The SRA’s response to items sub- shall set forth the SRA’s decision mitted as issues by the applicant under whether there will be a change in the paragraph (d) of this section. character of or reason for discharge (or (iii) Response to the rebuttal. (A) If the both); if the SRA concludes that a SRA grants the full change in dis- change is warranted, the particular charge requested by the applicant (or a change to be made shall be specified. If the SRA adopts the decision rec- more favorable change), that fact shall ommended by the DRB or the DRB be noted, the decisional issues shall be president, the decisional document addressed under paragraph (e) of this shall contain a reference to the matter section, and no further response to the adopted. rebuttal is required. (ii) Discussion of issues. In support of (B) If the SRA does not grant the full the SRA’s decision, the addendum shall change in discharge requested by the set forth the SRA’s position on applicant (or a more favorable change), decisional issues, items submitted as the addendum shall list each issue in issues by an applicant in accordance rebuttal submitted by an applicant in with paragraph (a)(4)(i) of this section, accordance with this section, and shall and issues raised by the DRB and the set forth the response of the SRA under DRB president in accordance with the the following guidance: following guidance: (1) If the SRA rejects an issue in re- (A) Adoption of the DRB president’s buttal, the SRA may respond in ac- recommendation. The addendum may cordance with the principles in para- state that the SRA has adopted the graph (e) of this section. DRB president’s recommendation. (2) If the matter adopted by the SRA (B) Adoption of the DRB’s proposed provides a basis for the SRA’s rejection decisional document. The addendum may of the rebuttal material, the SRA may state that the SRA has adopted the note that fact and cite the specific proposed decisional document prepared matter adopted that responds to the by the DRB. issue in rebuttal. (C) Adoption of specific statements from (3) If the matter submitted by the ap- the majority or the DRB president. If the plicant does not meet the requirements SRA adopts the views of the DRB or for rebuttal material in paragraph the DRB president only in part, the ad- (b)(2)(ii)(B) of this section. dendum shall cite the specific state- (iv) Index entries. Appropriate index ments adopted. If the SRA modifies a entries shall be prepared for the SRA’s statement submitted by the DRB or the DRB president, the addendum shall actions for matters that are not adopt- set forth the modification. ed from the DRB’s proposed decisional (D) Response to issues not included in document. matter adopted from the DRB or the DRB (h) The decisional document. A president. The addendum shall set forth decisional document shall be prepared the following if not adopted in whole or for each review. At a minimum, this in part from the DRB or the DRB presi- document shall contain: dent: (1) The circumstances and character (1) A list of the issues on which the of the applicant’s service as extracted SRA’s decision is based. Each such from available service records, includ- decisional issue shall be addressed by ing health records, and information the SRA under paragraph (e) of this provided by other Government authori- section. This includes reasons for re- ties or the applicant, such as, but not jecting the conclusion of the DRB or limited to:

275 § 70.8 32 CFR Ch. I (7–1–97 Edition)

(i) Information concerning the dis- (7) The response to the items submit- charge at issue in the review, includ- ted as issues by the applicant under the ing: guidance in paragraph (d) of this sec- (A) Date (YYMMDD) of discharge. tion. (B) Character of discharge. (8) A list of decisional issues and a (C) Reason for discharge. discussion of such issues under the (D) The specific regulatory authority guidance in paragraph (e) of this sec- under which the discharge was issued. tion. (ii) Date (YYMMDD) of enlistment. (9) Minority views, if any, when au- (iii) Period of enlistment. thorized under rules of the Military De- (iv) Age at enlistment. partment concerned. (v) Length of service. (10) The recommendation of the DRB (vi) Periods of unauthorized absence. president when required by paragraph (vii) Conduct and efficiency ratings (f) of this section. (numerical or narrative). (11) The addendum of the SRA when (viii) Highest rank received. required by paragraph (g) of this sec- (ix) Awards and decorations. tion. (x) Educational level. (12) Advisory opinions, including (xi) Aptitude test scores. those containing factual information, (xii) Incidents of punishment pursu- when such opinions have been relied ant to Article 15, Uniform Code of Mili- upon for final decision or have been ac- tary Justice (including nature and date cepted as a basis for rejecting any of (YYMMDD) of offense or punishment). the applicant’s issues. Such advisory (xiii) Convictions by court-martial. opinions or relevant portions thereof (xiv) Prior military service and type that are not fully set forth in the dis- of discharge received. cussion of decisional issues or other- (2) A list of the type of documents wise in response to items submitted as submitted by or on behalf of the appli- issues by the application shall be incor- cant (including a written brief, letters porated by reference. A copy of opin- of recommendation, affidavits concern- ions incorporated by reference shall be ing the circumstances of the discharge, appended to the decision and included or other documentary evidence), if any. in the record of proceedings. (3) A statement whether the applicant testified, and a list of the type of (13) A record of the voting, including: witnesses, if any, who testified on be- (i) The number of votes for the DRB’s half of the applicant. decision and the number of votes in the (4) A notation whether the applica- minority, if any. tion pertained to the character of dis- (ii) The DRB member’s names (last charge, the reason for discharge, or name, first name, M.I.) and votes. The both. copy provided to the applicant may (5) The DRB’s conclusions on the fol- substitute a statement that the names lowing: and votes will be made available to the (i) Whether the character of or rea- applicant at the applicant’s request. son for discharge should be changed. (14) Index entries for each decisional (ii) The specific changes to be made, issue under appropriate categories list- if any. ed in the index of decisions. (6) A list of the items submitted as (15) An authentication of the docu- issues on DD Form 293 or expressly in- ment by an appropriate official. corporated therein and such other (i) Issuance of decisions following dis- items submitted as issues by the appli- charge review. The applicant and coun- cant that are identified as inadvert- sel or representative, if any, shall be ently omitted under paragraph provided with a copy of the decisional (a)(4)(i)(D) of this section. If the issues document and of any further action in are listed verbatim on DD Form 293, a review. The applicant (and counsel, if copy of the relevant portion of the any) shall be notified of the availabil- Form may be attached. Issues that ity of the complaint process under have been withdrawn or modified with § 70.10. Final notification of decisions the consent of the applicant need not shall be issued to the applicant with a be listed. copy to the counsel or representative,

276 Office of the Secretary of Defense § 70.8 if any, and to the Military Service con- Military Service record, the Military cerned. Service record shall contain a notation (1) Notification to applicants, with as to the place where the record is copies to counsel or representatives, stored. Other copies shall be filed and shall normally be made through the disposed of in accordance with appro- U.S. Postal Service. Such notification priate Military Service regulations. shall consist of a notification of deci- (l) Availability of Discharge Review sion, together with a copy of the Board documents for inspection and copy- decisional document. ing. (1) A copy of the decisional docu- (2) Notification to the Military Serv- ment prepared in accordance with ices shall be for the purpose of appro- paragraph (d) of this section shall be priate action and inclusion of review made available for public inspection matter in personnel records. Such noti- and copying promptly after a notice of fication shall bear appropriate certifi- final decision is sent to the applicant. cation of completeness and accuracy. (2) To prevent a clearly unwarranted (3) Actions on review by superior au- invasion of personal privacy, identify- thority, when occurring, shall be pro- ing details of the applicant and other vided to the applicant and counsel or persons will be deleted from documents representative in the same manner as made available for public inspection the notification of the review decision. and copying. (j) Record of DRB proceedings. (1) (i) Names, addresses, social security When the proceedings in any review numbers, and Military Service numbers have been concluded, a record thereof must be deleted. Written justification will be prepared. Records may include shall be made for all other deletions written records, electromagnetic and shall be available for public inspec- records, videotape recordings, or a tion. combination thereof. (ii) Each DRB shall ensure that there (2) At a minimum, the record will in- is a means for relating a decisional clude the following: document number to the name of the (i) The application for review; applicant to permit retrieval of the ap- (ii) A record of the testimony in ver- plicant’s records when required in proc- batim, summarized, or recorded form essing a complaint under § 70.10. at the option of the DRB concerned; (3) Any other privileged or classified (iii) Documentary evidence or copies material contained in or appended to thereof, considered by the DRB other any documents required by this part to than the Military Service record; be furnished the applicant and counsel (iv) Briefs and arguments submitted or representative or made available for by or on behalf of the applicant; public inspection and copying may be (v) Advisory opinions considered by deleted therefrom only if a written the DRB, if any; statement of the basis for the deletions (vi) The findings, conclusions, and is provided the applicant and counsel reasons developed by the DRB; or representative and made available (vii) Notification of the DRB’s deci- for public inspection. It is not intended sion to the cognizant custodian of the that the statement be so detailed as to applicant’s records, or reference to the reveal the nature of the withheld mate- notification document; rial. (viii) Minority reports, if any; (4) DRB documents made available (ix) A copy of the decisional docu- for public inspection and copying shall ment. be located in the Armed Forces Dis- (k) Final disposition of the Record of charge Review/Correction Board Read- Proceedings. The original record of pro- ing Room. The documents shall be in- ceedings and all appendices thereto dexed in a usable and concise form so shall in all cases be incorporated in the as to enable the public, and those who Military Service record of the appli- represent applicants before the DRBs, cant and the Military Service record to isolate from all these decisions that shall be returned to the custody of the are indexed, those cases that may be appropriate records holding facility. If similar to an applicant’s case and that a portion of the original record of the indicate the circumstances under or proceedings cannot be stored with the reasons for (or both) which the DRB or

277 § 70.9 32 CFR Ch. I (7–1–97 Edition) the Secretary concerned granted or de- Department of the Army directives and nied relief. regulations. The manual that accom- (i) The reading file index shall in- panies the index of decisions shall no- clude, in addition to any other items tify the public that if an applicant in- determined by the DRB, the case num- dicates that a review is scheduled for a ber, the date, character of, reason and specific date, an effort will be made to authority for the discharge. It shall provide requested decisional docu- also include the decisions of the DRB ments before that date. The individual and reviewing authority, if any, and or organization will be advised if that the issues addressed in the statement cannot be accomplished. of findings, conclusions, and reasons. (v) Correspondence relating to mat- (ii) The index shall be maintained at ters under the cognizance of the Read- selected permanent locations through- ing Room (including requests for pur- out the United States. This ensures chase of indexes) shall be addressed to: reasonable availability to applicants at DA Military Review Boards Agency, least 30 days before a traveling panel Attention: SFBA (Reading Room), review. A list of these locations shall Room 1E520, The Pentagon, Washing- be published in the FEDERAL REGISTER ton, DC 20310. by the Department of the Army. The (m) Privacy Act information. Informa- index shall also be made available at tion protected under the Privacy Act is sites selected for traveling panels or involved in the discharge review func- hearing examinations for such periods tions. The provisions of part 286a of as the DRB or a hearing examiner is this title shall be observed throughout present and in operation. An applicant the processing of a request for review who has requested a traveling panel re- of discharge or dismissal. view or a hearing examination shall be (n) Information requirement. Each advised in the notice of such review of Military Department shall provide the the permanent index locations. Deputy Assistant Secretary of Defense (iii) The Armed Forces Discharge Re- (Military Personnel and Force Manage- view/Correction Board Reading Room ment) DASD (MP&FM), Office of the shall publish indexes quarterly for all ASD (MRA&L), with a semiannual re- DRBs. All DRBs shall be responsible port of discharge review actions in ac- for timely submission to the Reading cordance with § 70.11. Room of individual case information required for update of the indexes. In [47 FR 37785, Aug. 26, 1982, as amended at 48 addition, all DRBs shall be responsible FR 9855, Mar. 9, 1983; 48 FR 35644, Aug. 5, 1983] for submission of new index categories based upon published changes in policy, § 70.9 Discharge review standards. procedures, or standards. These indexes (a) Objective of review. The objective shall be available for public inspection of a discharge review is to examine the or purchase (or both) at the Reading propriety and equity of the applicant’s Room. When the DRB has accepted an discharge and to effect changes, if nec- application, information concerning essary. The standards of review and the the availability of the index shall be underlying factors that aid in deter- provided in the DRB’s response to the mining whether the standards are met application. shall be historically consistent with (iv) Copies of decisional documents criteria for determining honorable will be provided to individuals or orga- service. No factors shall be established nizations outside the NCR in response that require automatic change or de- to written requests for such docu- nial of a change in discharge. Neither a ments. Although the Reading Room DRB nor the Secretary of the Military shall try to make timely responses to Department concerned shall be bound such requests, certain factors such as by any methodology of weighting of the length of a request, the volume of the factors in reaching a determina- other pending requests, and the impact tion. In each case, the DRB or the Sec- of other responsibilities of the staff as- retary of the Military Department con- signed to such duties may cause some cerned shall give full, fair, and impar- delays. A fee may be charged for such tial considerations to all applicable documents under appropriate DoD and factors before reaching a decision. An

278 Office of the Secretary of Defense § 70.9 applicant may not rceive a less favor- December 3, 1981, in Wood v. Secretary of able discharge than that issued at the Defense to determine whether proper time of separation. This does not pre- grounds exist for the issuance of a less clude correction of clerical errors. than Honorable discharge, taking into (b) Propriety. (1) A discharge shall be account that; deemed proper unless, in the course of (i) An Other than Honorable (for- discharge review, it is determined that: merly undesirable) Discharge for an in- (i) There exists an error of fact, law, active reservist can only be based upon procedure, or discretion associated civilian misconduct found to have af- with the discharge at the time of issu- fected directly the performance of mili- ance; and that the rights of the appli- tary duties; cant were prejudiced thereby (such (ii) A General Discharge for an inac- error shall constitute prejudicial error tive reservist can only be based upon if there is substantial doubt that the civilian misconduct found to have had discharge would have remained the same if the error had not been made); an adverse impact on the overall effec- or tiveness of the military, including (ii) A change in policy by the Mili- military morale and efficiency. tary Service of which the applicant was (c) Equity. A discharge shall be a member, made expressly retroactive deemed to be equitable unless: to the type of discharge under consid- (1) In the course of a discharge re- eration, requires a change in the dis- view, it is determined that the policies charge. and procedures under which the appli- (2) When a record associated with the cant was discharged differ in material discharge at the time of issuance in- respects from policies and procedures volves a matter in which the primary currently applicable on a Service-wide responsibility for corrective action basis to discharges of the type under rests with another organization (for ex- consideration provided that: ample, another Board, agency, or (i) Current policies or procedures rep- court), the DRB will recognize an error resent a substantial enhancement of only to the extent that the error has the rights afforded a respondent in been corrected by the organization such proceedings; and with primary responsibility for cor- (ii) There is substantial doubt that recting the record. the applicant would have received the (3) The primary function of the DRB same discharge if relevant current poli- is to exercise its discretion on issues of cies and procedures had been available equity by reviewing the individual to the applicant at the time of the dis- merits of each application on a case- charge proceedings under consider- by-case basis. Prior decisions in which ation. the DRB exercised its discretion to (2) At the time of issuance, the dis- change a discharge based on issues of charge was inconsistent with standards equity (including the factors cited in of discipline in the Military Service of such decisions or the weight given to which the applicant was a member. factors in such decisions) do not bind the DRB in its review of subsequent (3) In the course of a discharge re- cases because no two cases present the view, it is determined that relief is same issues of equity. warranted based upon consideration of (4) The following applies to appli- the applicant’s service record and other cants who received less than fully Hon- evidence presented to the DRB viewed orable administrative discharges be- in conjunction with the factors listed cause of their civilian misconduct in this section and the regulations while in an inactive reserve component under which the applicant was dis- and who were discharged or had their charged, even though the discharge was discharge reviewed on or after April 20, determined to have been otherwise eq- 1971: the DRB shall either recharacter- uitable and proper at the time of issu- ize the discharge to Honorable without ance. Areas of consideration include, any additional proceedings or addi- but are not limited to: tional proceedings shall be conducted (i) Quality of service, as evidenced by in accordance with the Court’s Order of factors such as:

279 § 70.10 32 CFR Ch. I (7–1–97 Edition)

(A) Service history, including date of thority that constitute a clear abuse of enlistment, period of enlistment, high- such authority and that, although not est rank achieved, conduct or effi- amounting to prejudicial error, may ciency ratings (numerical or nar- have contributed to the decision to dis- rative); charge or to the characterization of (B) Awards and decorations; service. (C) Letters of commendation or rep- (D) Discrimination. This includes un- rimand; authorized acts as documented by (D) Combat service; records or other evidence. (E) Wounds received in action; (F) Records of promotions and demo- § 70.10 Complaints concerning tions; decisional documents and index en- (G) Level of responsibility at which tries. the applicant served; (a) General. (1) The procedures in this (H) Other acts of merit that may not section—are established for the sole have resulted in a formal recognition purpose of ensuring that decisional through an award or commendation; documents and index entries issued by (I) Length of service during the serv- the DRBs of the Military Departments ice period which is the subject of the comply with the decisional document discharge review; and index entry principles of this part. (J) Prior military service and type of (2) This section may be modified or discharge received or outstanding supplemented by the DASD(MP&FM). postservice conduct to the extent that (3) The following persons may submit such matters provide a basis for a more complaints: thorough understanding of the per- (i) A former member of the Armed formance of the applicant during the Forces (or the former member’s coun- period of service which is the subject of sel) with respect to the decisional doc- the discharge review; ument issued in the former member’s (K) Convictions by court-martial; own case; and (L) Records of nonjudicial punish- (ii) A former member of the Armed ment; Forces (or the former member’s coun- (M) Convictions by civil authorities sel) who states that correction of the while a member of the Service, re- decisional document will assist the flected in the discharge proceedings or former member in preparing for an ad- otherwise noted in military service ministrative or judicial proceeding in records; which the former member’s own dis- (N) Records of periods of unauthor- charge will be at issue. ized absence; (4) The Department of Defense is (O) Records relating to a discharge committed to processing of complaints instead of court-martial. within the priorities and processing (ii) Capability to serve, as evidenced goals set forth in paragraph (d)(1)(iii) by factors such as: of this section. This commitment, how- (A) Total capabilities. This includes an ever, is conditioned upon reasonable evaluation of matters, such as age, use of the complaint process under the educational level, and aptitude scores. following considerations. The DRBs Consideration may also be given were established for the benefit of whether the individual met normal former members of the Armed Forces. military standards of acceptability for The complaint process can aid such military service and similar indicators persons most effectively if it is used by of an individual’s ability to serve satis- former members of the Armed Forces factorily, as well as ability to adjust to when necessary to obtain correction of military service. their own decisional documents or to (B) Family and Personal Problems. This prepare for discharge reviews. If a sub- includes matters in extenuation or stantial number of complaints submit- mitigation of the reason for discharge ted by others interferes with the abil- that may have affected the applicant’s ity of the DRBs to process applications ability to serve satisfactorily. for discharge review in a timely fash- (C) Arbitrary or capricious action. This ion, the Department of Defense will ad- includes actions by individuals in au- just the processing goals to ensure that

280 Office of the Secretary of Defense § 70.10 the system operates to the primary ad- (A) The applicant’s case. A complaint vantage of applicants. by an applicant with respect to the (5) The DASD(MP&FM) is the final decisional document issued in the ap- authority with respect to action on plicant’s own discharge review shall be such correspondence. considered under the Stipulation of (b) The Joint Service Review Activity Dismissal in the Urban Law case and (JSRA). A three member JSRA consist- other decisional document require- ing of one judge advocate from each ments applicable at the time the docu- Military Department shall advise the ment was issued, including those con- DASD(MP&FM). The operations of the tained in the Settlement Agreement JSRA shall be coordinated by a full- and related Orders, subject to any limi- time administrative director, who shall tations set forth therein with respect serve as recorder during meetings of to dates of applicability. If the author- the JSRA. The members and the ad- ity empowered to take corrective ac- ministrative director shall serve at the tion has a reasonable doubt whether a direction of the DASD(MP&FM). decisional document meets applicable (c) Classification and control of cor- requirements of the Urban Law case or respondence—(1) Address of the JSRA. other applicable rules, the complaint Correspondence with the OSD concern- shall be resolved in the applicant’s ing decisional documents or index en- favor. tries issued by the DRBs shall be ad- (B) Other cases. With respect to all dressed as follows: Joint Service Re- other complaints, the standard shall be view Activity, OASD(MRA&L) whether a reasonable person familiar (MP&FM), Washington, DC 20301. with the discharge review process can (2) Docketing. All such correspond- understand the basis for the decision, ence shall be controlled by the admin- including the disposition of issues istrative director through the use of a raised by the applicant. This standard uniform docketing procedure. is designed to ensure that the com- (3) Classification. Correspondence plaint process is not burdened with the shall be reviewed by the administrative need to correct minor errors in the director and categorized either as a preparation of decisional documents. complaint or an inquiry in accordance with the following: (ii) Use of DD Form 293. With respect (i) Complaints. A complaint is any to any decisional document issued on correspondence in which it is alleged or after November 27, 1982, a complaint that a decisional document issued by a alleging failure of the DRB to address DRB or SRA contains a specifically adequately matter not submitted on identified violation of the Stipulation DD Form 293 or expressly incorporated of Dismissal, Settlement Agreement, therein will be resolved in the com- or related Orders in the Urban Law case plainant’s favor only if the failure to or the decisional document or index address the issue was arbitrary, capri- entry principles of this Directive. A cious, or an abuse of discretion. complainant who alleges error with re- (iii) Scope of review. When a com- spect to a decisional document issued plaint concerns a specific issue in the to another person is encouraged to set applicant’s own discharge review, the forth specifically the grounds for deter- complaint review process shall involve mining that a reasonable person famil- a review of all the evidence that was iar with the discharge review process before the DRB or SRA, including the cannot understand the basis for the de- testimony and written submissions of cision. See paragraph (d)(1)(i)(B) of this the applicant, to determine whether section. the issue was submitted, and if so, (ii) Inquiries. An inquiry is any cor- whether it was addressed adequately respondence other than a complaint. with respect to the Stipulation of Dis- (d) Review of complaints. (1) Guidance. missal, Settlement Agreement, or re- The following guidance applies to related Orders in the Urban Law case and view of complaints: other applicable provisions of this Di- (i) Standards. Complaints shall be rective. With respect to all other com- considered under the following stand- plaints about specific issues, the com- ards: plaint review process may be based

281 § 70.10 32 CFR Ch. I (7–1–97 Edition) solely on the decisional document, ex- raised by the applicant and not other- cept when the complainant dem- wise relied upon in the decision, there onstrates that facts present in the re- is no requirement under the Urban Law view in question raise a reasonable case that such matters be accompanied likelihood of a violation of applicable by a statement of findings, conclu- provisions of the Stipulation of Dismis- sions, or reasons. For example, when sal and a reasonable person, familiar the DRB discusses an aspect of the with the discharge review process, service record not raised as an issue by could resolve the complaint only after the applicant, and the issue is not a a review of the evidence that was be- basis for the DRB’s decision, the DRB fore the DRB. is not required to discuss the reasons (iv) Allegations pertaining to an appli- for declining to list that aspect of the cant’s submission. The following addi- service record as an issue. tional requirements apply to com- (v) Guidance as to other types of complaints about modification of an appli- plaints. The following guidance governs cant’s issue or the failure to list or ad- other specified types of complaints: dress an applicant’s issue: (A) The Stipulation of Dismissal re- (A) When the complaint is submitted quires only that those facts that are by the applicant, and the record of the essential to the decision be listed in hearing is ambiguous on the question the decisional document. The require- whether there was a meeting of minds ment for listing specified facts from between the applicant and the DRB as the military record was not established to modification or omission of the until March 29, 1978, in 32 CFR part 70 issue, the ambiguity will be resolved in Decisional documents issued prior to favor of the applicant. that date are sufficient if they meet (B) When the complaint is submitted the requirements of the Stipulation. by a person other than the applicant, it (B) When an applicant submits a brief must set forth facts (other than the that contains material in support of a mere omission or modification of an proposed conclusion on an issue, the issue) demonstrating a reasonable like- DRB is not required to address each as- lihood that the issue was omitted or pect of the supporting material in the modified without the applicant’s con- brief. However, the decisional docu- sent. ment should permit the applicant to (C) When the complaint is rejected on understand the DRB’s position on the the basis of the presumption of regular- issue and provide reviewing authorities ity, the response to the complaint with an explanation that is sufficient must be set forth the reasons why the to permit review of the DRB’s decision. evidence submitted by the complainant When an applicant submits specific is- was not sufficient to overcome the pre- sues and later makes a statement be- sumption. fore the DRB that contains matter in (D) With respect to decisional docu- support of that issue, it is not nec- ments issued on or after the effective essary to list such supporting matter date of the amendments to § 70.8, any as a separate issue. change in wording of an applicant’s (C) For all decisional documents is- issue which is effected in violation of sued before November 27, 1982, failure the principles set forth in to respond to an issue raised by an ap- § 70.8(a)(5)(iii) constitutes an error re- plicant constitutes error unless it rea- quiring corrective action. With respect sonably may be inferred from the to a decisional document issued before record that the DRB response relied on that date, corrective action will be one of the exceptions listed in taken only when there has been a com- § 70.8(d)(3)(ii); (e)(3)(ii)(C) (3) through (4) plaint by the applicant or counsel with and (e)(6)(ii)(C) (3) through (4). If the respect to the applicant’s own decisional document supports a basis decisional document and it is deter- for not addressing an issue raised by mined that the wording was changed or the applicant (for example, if it is ap- the issue was omitted without the apparent that resolving the issue in the plicant’s consent. applicant’s favor would not warrant an (E) If there are references in the upgrade), there is no requirement in decisional document to matters not the Stipulation of Dismissal that the

282 Office of the Secretary of Defense § 70.10 decisional document explain why the view process can not understand the DRB did not address the issue. With re- basis for relying on the presumption. spect to decisional documents issued (G) When the DRB balances on or after November 27, 1982, a re- mitigrating factors against aggravat- sponse shall be prepared in accordance ing factors as the reason for a conclu- with the decisional document prin- sion, the Stipulation of Dismissal does ciples set forth in § 70.8. not require the statement of reasons to (D) When a case is reviewed upon re- set forth the specific factors that were quest of an applicant, and the DRB up- balanced if such factors are otherwise grades the discharge to ‘‘General,’’ the apparent on the fact of the decisional DRB must provide reasons why it did document. The foregoing applies to not upgrade to ‘‘Honorable’’ unless the decisional documents prepared before applicant expressly requests lesser re- November 27, 1982. With respect to lief. This requirement applies to all re- decisional documents prepared after quests for corrective action submitted that date, the statements addressing by an applicant with respect to his or decisional issues in such a case will list her decisional document. In all other or refer to the factors supporting the cases, this requirement applies to conclusion in accordance with decisional documents issued on or after § 70.8(e)(6)(ii). November 9, 1978. When the DRB up- (vi) Documents that were the subject of grades to General, its explanation for a prior complaint. The following applies not upgrading to Honorable may con- to a complaint concerning a decisional sist of reference to adverse matter document that has been the subject of from the applicant’s military record. prior complaints: When a discharge is upgraded to Gen- (A) If the complaint concerns a eral in a review on the DRB’s own mo- decisional document that was the sub- tion, there is no requirement to explain ject of a prior complaint in which ac- why the discharge was not upgraded to tion was completed, the complainant Honorable. will be informed of the substance and (E) There is no requirement under disposition of the prior complaint, and the Stipulation of Dismissal to provide will be further informed that no addi- reasons for uncontested findings. The tional action will be taken unless the foregoing applies to decisional docu- complainant within 30 days dem- ments issued before November 27, 1982. onstrates that the prior disposition did With respect to decisional documents not produce a decisional document that issued on or after that date, the follow- comports with the requirements of ing guidance applies with respect to an paragraph (d)(1)(i)(A) of this section. uncontested issue of fact that forms the basis for a grant or denial of a (B) If the complaint concerns a change in discharge: the decisional decisional document that is the subject document shall list the specific source of a pending complaint, the complain- of information relied upon in reaching ant will be informed that he or she will the conclusion, except when the infor- be provided with the results of the mation is listed in the portion of the pending complaint. decisional document that summarizes (C) These limitations do not apply to the service record. the initial complaint submitted on or (F) The requirements of § 70.8(e)(3) after the effective date of the amend- (ii)(B)(2) and (e)(6) (ii)(B)(2) with re- ments to this section by an applicant spect to explaining use of the presump- with respect to his or her own tion of regularity apply only to decisional document. decisional documents issued on or after (2) Duties of the administrative director. November 27, 1982. When a complaint The administrative director shall take concerning a decisional document is- the following actions: sued before that date addresses the (i) Acknowledge receipt of the com- adequacy of the DRB’s use of the pre- plaint; sumption of regularity, or words hav- (ii) Assign a docket number and note ing a similar import, corrective action the date of receipt; and will be required only if a reasonable (iii) Forward the complaint to the person familiar with the discharge re- Military Department concerned, except

283 § 70.10 32 CFR Ch. I (7–1–97 Edition) that the case may be forwarded di- DASD(MP&FM) under paragraph rectly to the DASD (MP&FM) when the (d)(2)(iii) of this section, normally shall administrative director makes an ini- be transmitted within 7 days after the tial determination that corrective ac- date of receipt. tion is not required. (B) The Military Department nor- (3) Administrative processing. The fol- mally shall request the necessary lowing guidance applies to administra- records within 5 working days after the tive processing of complaints: date of receipt from the administrative (i) Complaints normally shall be director. The Military Department nor- processed on a first-in/first-out basis, mally shall complete action under subject to the availability of records, paragraph (d)(4) of this section within pending discharge review actions, and 45 days after receipt of all necessary the following priorities: records. If action by the Military De- (A) The first priority category con- partment is required under paragraph sists of cases in which (1) there is a (d)(9) of this section, normally it shall pending discharge review and the com- be completed within 45 days after ac- plainant is the applicant; and (2) the tion is taken by the DASD(MP&FM). complainant sets forth the relevance of (C) The JSRA normally shall com- the complaint to the complainant’s plete action under paragraph (d)(7) of pending discharge review application. this section at the first monthly meet- (B) The second priority category con- ing held during any period commencing sists of requests for correction of the 10 days after the administrative direc- decisional document in the complain- tor receives the action of the Military ant’s own discharge review case. Department under paragraph (d)(5) of (C) The third priority category con- this section. sists of complaints submitted by (D) The DASD(MP&FM) normally former members of the Armed Forces shall complete action under paragraph (or their counsel) who state that the (d)(8) of this section within 30 days complaint is submitted to assist the after action is taken by the JSRA former member’s submission of an ap- under paragraph (d)(7) of this section plication for review. or by the administrative director under (D) The fourth priority category con- paragraph (d)(2)(iii) of this section. sists of other complaints in which the (E) If action is not completed within complainant demonstrates that correc- the overall processing goals specified tion of the decisional document will in this paragraph, the complainant substantially enhance the ability of ap- shall be notified of the reason for the plicants to present a significant issue delay by the administrative director to the DRBs. and shall be provided with an approxi- (E) The fifth priority category con- mate date for completion of the action. sists of all other cases. (iv) If the complaints are submitted (ii) Complainants who request consid- in any 30 day period with respect to eration in a priority category shall set more than 50 decisional documents, the forth in the complaint the facts that administrative director shall adjust give rise to the claim of placement in the processing goals in light of the the requested category. If the com- number of complaints and discharge re- plaint is relevent to a pending dis- view applications pending before the charge review in which the complain- DRBs. ant is applicant or counsel, the sched- (v) At the end of each month, the ad- uled date of the review should be speci- ministrative director shall send each fied. Military Department a list of com- (iii) The administrative director is plaints, if any, in which action has not responsible for monitoring compliance been completed within 60 days of the with the following processing goals: docket date. The Military Department (A) The administrative director nor- shall inform the administrative direc- mally shall forward correspondence to tor of the status of each case. the Military Department concerned (4) Review of complaints by the Military within 3 days after the date of receipt Departments. The Military Department specified in the docket number. Cor- shall review the complaint under the respondence forwarded directly to the following guidance:

284 Office of the Secretary of Defense § 70.10

(i) Rejection of complaint. If the Mili- Discharge Review Program or the Pub. tary Department determines that all L. 95–126 rereview program, appropriate the allegations contained in the com- corrective action consists of (1) amend- plaint are not specific or have no ing the decisional document; or (2) no- merit, it shall address the allegations tifying the applicant and counsel, if using the format at attachment 1 (Re- any, of the opportunity to obtain a pri- view of Complaint). ority review using the letter providing (ii) Partial agreement. If the Military at attachment 6. When the DRB takes Department determines that some of corrective action under this provision the allegations contained in the com- by amending a decisional document, it plaint are not specific or have no merit shall notify the applicant and counsel, and that some of the allegations con- if any, of the opportunity to request a tained in the complaint have merit, it de novo review under the Special Dis- shall address the allegations using the charge Review Program or under Pub. format at attachment 1 and its DRB L. 95–126 rereview program, as appro- shall take appropriate corrective ac- priate. tion in accordance with paragraph (C) When corrective action is taken (d)(4)(v) of this section. with respect to a decisional document (iii) Full agreement. If the Military in cases prepared under Pub. L. 95–126 Department determines that all of the the DRB must address issues pre- allegations contained in the complaint viously raised by the DRB or the appli- have merit, its DRB shall take appro- cant during review of the same case priate corrective action in accordance during the SDRP only insofar as re- with paragraph (d)(4)(v) of this section. quired by the following guidance: (iv) Other defects. If, during the (1) When the DRB bases its decision course of its review, the Military De- upon issues previously considered dur- partment notes any other defects in ing the SDRP, the new decisional docu- the decisional document or index en- ment under Pub. L. 95–126 must address tries (under the applicable require- those issues; ments of the Urban Law case or under (2) If, during consideration of the this part) the DRB shall take appro- case under Pub. L. 95–126 the applicant priate corrective action under para- presents issues previously considered graph (d)(4)(v) of this section. This does during the SDRP, the new decisional not establish a requirement for the document must address those issues; Military Department to review a com- and plaint for any purpose other than to (3) If a decisional document concern- determine whether the allegations con- ing an initial record review under Pub. tained in the complaint are specific L. 95–126 is otherwise defective and cor- and have merit; rather, it simply pro- rective action is taken after a request vides a format for the Military Depart- by the applicant for a priority review ment to address other defects noted in response to the letter at attachment during the course of processing the 6, the new decisional document shall complaint. address all issues previously raised by (v) Appropriate corrective action. The the applicant during the SDRP. following procedures govern appro- (D) Except for cases falling under priate corrective action: paragraph (d)(4)(v)(B) of this section, if (A) If a complaint concerns the a complaint concerns a decisional doc- decisional document in the complain- ument in which the applicant received ant’s own discharge review case, appro- an Honorable Discharge and the full re- priate corrective action consists of lief requested, if any, with respect to amending the decisional document or the reason for discharge, appropriate providing the complainant with an op- corrective action consists of amending portunity for a new discharge review. the decisional document. An amended decisional document will (E) In all other cases, appropriate be provided if the applicant requests corrective action consists of amending that form of corrective action. the decisional document or providing (B) If a complaint concerns a the applicant with the opportunity for decisional document involving an ini- a new review, except that an amended tial record review under the Special decisional document will be provided

285 § 70.10 32 CFR Ch. I (7–1–97 Edition) when the complainant expressly re- counsel, should include the following quests that form of corrective action. or similar wording: ‘‘This is in partial (vi) Amended decisional documents. response to (your)/(a) complaint to the One that reflects a determination by a Office of the Assistant Secretary of De- DRB panel (or the SRA) as to what the fense (Manpower, Reserve Affairs, and DRB panel (or SRA) that prepared the Logistics) dated llll concerning defective decisional document would llll Discharge Review Board have entered on the decisional docu- decisional document llll. A final ment to support its decision in this response to (your)/(the) complaint, case. which has been returned to the Office (A) The action of the amending au- of the Assistant Secretary of Defense thority does not necessarily reflect (Manpower, Reserve Affairs, and Logis- substantive agreement with the deci- tics) for further review, will be pro- sion of the original DRB panel (or vided to you in the near future.’’ SRA) on the merits of the case. (ix) Final notification. When the Dis- (B) A corrected decisional document charge Review Board takes corrective created by amending a decisional docu- action under paragraphs (d)(4)(iii) and ment in response to a complaint will be (d)(9) of this section llll its notifi- based upon the complete record before cation to the applicant and counsel, if the DRB (or the SRA) at the time of any, and to the complainant, if other the original defective statement was than the applicant or counsel, should issued, including, if available, a tran- include the following or similar word- script, tape recording, videotape or ing: ‘‘This is in response to (your)/(a) other record of a hearing, if any. The complaint to the Office of the Assist- new decisional document will be in- ant Secretary of Defense (Manpower, dexed under categories relevant to the Reserve Affairs, and Logistics) dated new statements. llll concerning llll Discharge (C) When an amended decisional doc- Review Board decisional document ument is required under paragraphs llll. (d)(4)(v)(A) and (d)(4)(v)(D) of this sec- (5) Transmittal to the administrative dition and the necessary records cannot rector. The Military Department shall be located, a notation to that effect return the complaint to the adminis- will be made on the decisional docu- trative Director with a copy of the ment, and the applicant and counsel, if decisional document and, when appli- any, will be afforded an opportunity for cable, any of the following documents: a new review, and the complainant will (i) The ‘‘Review of Complaint.’’ be informed of the action. (ii) A copy of the amendment to the (D) When an amended decisional doc- decisional document and the accom- ument is requested under paragraph panying transmittal letter or letters to (d)(4)(v)(C) and the necessary records the applicant and counsel, if any, and cannot be located, a notation to that to the complainant, if other than the effect will be made on the decisional applicant or counsel. document, and the complainant will be (iii) A copy of the notification to the informed that the situation precludes applicant and counsel, if any, of the op- further action. portunity to request a new review, and (vii) Time limit for requesting a new re- a copy of the notification to the com- view. An applicant who is afforded an plainant, if other than the applicant or opportunity to request a new review counsel, that the applicant has been may do so within 45 days. authorized a new review. (viii) Interim notification. When the (6) Review by the administrative direc- Military Department determines that tor. The administrative director shall some or all of the allegations con- review the complaint and accompany- tained in the complaint are not specific ing documents to ensure the following: or have no merit but its DRB takes (i) If the Military Department deter- corrective action under paragraph mined that any of the allegations con- (d)(4)(ii) or (d)(4)(iv) of this section, the tained in the complaint are not specific DRB’s notification to the applicant and or have no merit, the JSRA shall re- counsel, if any, and to the complain- view the complaint and accompanying ant, if other than the applicant or documents. The JSRA shall address the

286 Office of the Secretary of Defense § 70.10 allegations using the format at attach- ommendations of the JSRA and the ad- ment 2 (Review of and Recommended ministrative director as follows: Action on Complaint) and shall note (i) The DASD(MP&FM) shall review any other defects in the decisional doc- complaints using the format at Attach- ument or index entries not previously ment 4 (Review of and Action on Com- noted by the Military Department. plaint). The DASD(MP&FM) is the This does not establish a requirement final authority in determining whether for the JSRA to review such com- the allegations contained in a complaints for any purpose other than to plaint are specific and have merit. If address the allegations contained in the DASD(MP&FM) determines that no the complaint; rather, it simply pro- further action by the Military Depart- vides a format for the JSRA to address ment is warranted, the complainant other defects noted in the course of and the Military Department shall be processing the complaint. so informed. If the DASD(MP&FM) de- (ii) If the Military Department deter- termines that further action by the mined that all of the allegations con- Military Department is required, the tained in the complaint have merit and Military Department shall be directed its DRB amended the decisional docu- to ensure that appropriate corrective ment, the amended decisional docu- action is taken by its DRB and the ment shall be subject to review by the complainant shall be provided an ap- JSRA on a sample basis each quarter propriate interim response. using the format at attachment 3 (Re- (ii) The DASD(MP&FM) shall review view of any Recommendation on amended decisional documents using Amended Decisional Document). the format at attachment 5 (Review of and Action on Amended Decisional (iii) If the Military Department de- Document). The DASD(MP&FM) is the termined that all of the allegations final authority in determining whether contained in the complaint have merit an amended decisional document com- and its DRB notified the applicant and plies with applicable requirements of counsel, if any, of the opportunity to the Urban Law case and, when applica- request a new review, review of such ble, this Directive. If the corrective action is not required. DASD(MP&FM) determines that no (7) Review by the JSRA. The JSRA further corrective action by the Mili- shall meet for the purpose of conduct- tary Department is warranted, the ing the reviews required in paragraphs Military Department shall be so in- (d)(6)(i), (d)(6)(ii), and (d)(9)(iii)(A) of formed. If the DASD(MP&FM) deter- this section. The Administrative direc- mines that further corrective action by tor shall call meetings once a month, if the Military Department is required, necessary, or more frequently depend- the Military Department shall be di- ing upon the number of matters before rected to ensure that appropriate cor- the JSRA. Matters before the JSRA rective action is taken by its DRB. shall be presented to the members by (iii) It is noted that any violation of the recorder. Each member shall have applicable requirements of the Urban one vote in determining matters before Law case is also a violation of this the JSRA, a majority vote of the mem- part. However, certain requirements bers determining all matters. Deter- under this part are not requirements minations of the JSRA shall be re- under the Urban Law case. If the alle- ported to the DASD(MP&FM) as JSRA gations contained in a complaint are recommendations using the prescribed determined to have merit or if an format. If a JSRA recommendation is amended decisional document is deter- not unanimous, the minority member mined to be defective on the basis of may prepare a separate recommenda- one of these additional requirements tion for consideration by the under this part the DASD(MP&FM) de- DASD(MP&FM) using the same format. termination shall reflect this fact. Alternatively, the minority member (9) Further action by the Military De- may indicate ‘‘dissent’’ next to his sig- partment. (i) With respect to a deter- nature on the JSRA recommendation. mination by the DASD (MP&FM) that (8) Review by the DASD(MP&FM). The further action by the Military Depart- DASD(MP&FM) shall review all rec- ment is required, its DRB shall take

287 § 70.10 32 CFR Ch. I (7–1–97 Edition) appropriate corrective action in ac- (4) The Military Department’s re- cordance with paragraph (d)(4) of this sponse shall include the following or section. similar wording: ‘‘This is in response to (ii) The Military Department shall your inquiry to the Office of the Assist- provide the administrative director ant Secretary of Defense (Manpower, with the following documents when rel- Reserve Affairs, and Logistics) dated evant to corrective action taken in ac- llll concerning llll. cordance with paragraph (d)(4) of this (f) Indexing. The DRB concerned shall section: reindex all amended decisional docu- (A) A copy of the amendment to the ments and shall provide copies of the decisional document and the accom- amendments to the decisional docu- panying transmittal letter or letters to ments to the Armed Forces Discharge the applicant and counsel, if any, and Review/Correction Board Reading to the complainant, if other than the Room. applicant or counsel. (g) Disposition of documents. The ad- (B) A copy of the notification to the ministrative director is responsible for applicant and counsel, if any, of the op- the disposition of all Military Depart- portunity to request a new review, and ment, DRB, JSRA, and DASD a copy of the notification to the complainant, if other than the applicant or (MP&FM) documents relevant to proc- counsel, that the applicant has been essing complaints and inquiries. authorized a new review. (h) Referral by the General Counsel, (iii) The administrative director Department of Defense. The Stipulation shall review the documents relevant to of Dismissal permits Urban Law plain- corrective action taken in accordance tiffs to submit complaints to the Gen- with paragraph (d)(4) of this section, eral Counsel, DoD, for comment. The and ensure the following: General Counsel, DoD, may refer such (A) If the DRB amended the complaints to the Military Department decisional document, the amended concerned or to the JSRA for initial decisional document shall be subject to comment. review by the JSRA on a sample basis (i) Decisional document and index entry each quarter using the format at at- principles. The DASD (MP&FM) shall tachment 3 (Review of and Rec- identify significant principles concern- ommended Action on Amended ing the preparation of decisional docu- Decisional Document). ments and index entries as derived (B) If the DRB notified the applicant from decisions under this section and and counsel, if any, of the opportunity other opinions of the Office of General to request a new review, review of such Counsel, DoD. This review shall be corrective action is not required. completed not later than October 1 and (10) Documents required by the JSRA or April 1 of each year, or more frequently DASD (MP&FM). Upon request, the if deemed appropriate by the DASD Military Department shall provide the (MP&FM). The significant principles administrative director with other doc- identified in the review shall be coordi- uments required by the JSRA or the nated as proposed as amendments to DASD (MP&FM) in the conduct of the sections of this part. their reviews. (j) Implementation of amendments. The (e) Responses to inquiries. The follow- following governs the processing of any ing procedures shall be used in process- correspondence that is docketed prior ing inquiries: to the effective date of amendments to (1) The administrative director shall this section except as otherwise pro- assign a docket number to the inquiry. vided in such amendments: (2) The administrative director shall forward the inquiry to the Military De- (1) Any further action on the cor- partment concerned. respondence shall be taken in accord- (3) The Military Department shall ance with the amendments; and prepare a response to the inquiry and (2) No revision of any action taken provide the administrative director prior to the effective date of such with a copy of the response. amendments is required.

288 Office of the Secretary of Defense § 70.10

ATTACHMENT 1—REVIEW OF COMPLAINT 5. Other defects in the decisional document or index entries not noted by the Military Military Department: Departments: Decisional Document Number: 6. Recommendation: [ ] The complainant and the Military De- Name of Complainant: partment should be informed that no further action on the complaint is warranted. Docket Number: [ ] The Military Department should be di- Date of this Review: rected to take corrective action consistent with the above comments. 1. Specific allegation(s) noted: 2. With respect in support of the conclu- Army Member, JSRA sion, enter the following information: Air Force Member, JSRA a. Conclusion whether corrective action is Navy Member, JSRA required. Recorder, JSRA b. Reasons in support of the conclusion, including findings of fact upon which the con- ATTACHMENT 3—JOINT SERVICE REVIEW clusion is based. ACTIVITY 3. Other defects noted in the decisional document or index entries: Office of the Assistant Secretary of Defense (Authentication) (Manpower, Reserve Affairs, and Logistics)

ATTACHMENT 2—JOINT SERVICE REVIEW Review of Amended Decisional Document ACTIVITY (Quarterly Review)

Office of the Assistant Secretary of Defense Military Department: (Manpower, Reserve Affairs, and Logistics) Decisional Document Number: Review by the Joint Service Review Activity Military Department: Name of Complainant: Decisional Document Number: Name of Applicant: Name of Complainant: Docket Number:

Name of Applicant: Date of this Review:

Docket Number: Recommendation: Date of this Review: [ ] The amended decisional document 1. The Military Department’s ‘‘Review of complies with the requirements of the Stipu- Complaint’’ is attached as enclosure 1. lation of Dismissal and, when applicable, 2. Specific Allegations: See part 1 of Mili- DoD Directive 1332.28. The Military Depart- tary Department’s ‘‘Review of Complaint’’ ment should be informed that no further cor- (enclosure 1). rective action is warranted. 3. Specific allegation(s) not noted by the [ ] The amended decisional document does Military Department: not comply with the Stipulation of Dismissal 4. With respect to each allegation, enter or DoD Directive 1332.28 as noted herein. The the following information: Military Department should be directed to a. Conclusion as to whether corrective ac- ensure that corrective action consistent with tion is required. the defects noted is taken by its Discharge b. Reasons in support of the conclusion, in- Review Board. cluding findings of fact upon which conclusion is based. Army Member, JSRA NOTE.—If JSRA agrees with the Military Air Force Member, JSRA Departments, the JSRA may respond by en- Navy Member, JSRA tering a statement of adoption. Recorder, JSRA

Yes No NA Item Source

b b b 1. Date of discharge ...... 1. DoD Directive 1332.28, enclosure 3, subsection H.1.; Stipulation (Jan. 31, 1977) para. 5.A.(1)(d)(i) (reference (1)). b b b a. Date of discharge. b b b b. Character of discharge.

289 § 70.10 32 CFR Ch. I (7–1–97 Edition)

Yes No NA Item Source

b b b c. Reason for discharge. b b b d. Specific regulatory authority under which discharge was issued. b b b 2. Service data. (This requirement applies only in conjunc- 2. DoD Directive 1332.28, en- tion with Military Department Implementation of General closure 3, subsection H.1.; Counsel, DoD, letter dated July 20, 1977, or to discharge Annex B, (June ll, 1982) reviews conducted on or after March 29, 1978.) para. 2±2 (reference (1)). b b b a. Date of enlistment. b b b b. Period of enlistment. b b b c. Age at enlistment. b b b d. Length of service. b b b e. Periods of unauthorized absence*. b b b f. Conduct and efficiency ratings (numerical and narrative)*. b b b g. Highest rank achieved. b b b h. Awards and decorations*. b b b i. Educational level. b b b j. Aptitude test scores. b b b k. Art. 15s (including nature and date of offense or punishment)*. b b b l. Convictions by court-martial*. b b b m. Prior military service and type of discharge(s) received*. b b b 3. Reference to materials presented by applicant. (This re- 3. DoD Directive 1332.28, en- quirement applies only to discharge reviews conducted on closure 3, subsection H.2.; or after March 29, 1978.) H.3. b b b a. Written brief*. b b b b. Documentary evidence*. b b b c. Testimony*. b b b 4. Items submitted as issues. (See issues worksheet) ...... 4. DoD Directive 1332.28, enclosure 3, subsection H.6. b b b 5. Conclusions. The decisional document must indicate 5. Dod Directive 1332.28, enclo- clearly the DRB's conclusion concerning: sure 3, subsection H.5.; Stip- ulation (Jan. 31, 1977), paragraph 5.A.(1)(d)(iv) (reference (1)). b b b a. Determination of whether a discharge upgraded under SDRP would have been upgraded under DoD Directive 1332.28. (This applies only to mandatory reviews under P.L. 95±126 or Special Discharge Review Program (SDRP). b b b b. Character of discharge, when applicable1. b b b c. Reason for discharge, when applicable2. b b b 6. Reasons for conclusions. The decisional document must 6. DoD Directive 1332.28, enlist and discuss the items submitted as issues by the ap- closure 3, subsection H.7., plicant; and list and discuss the decisional issues provid- H.8.; Stipulation (Jan. 31, ing the basis for the DRB's conclusion concerning: 1977) para. 5.A.(1)(d)(v) (reference (1)). b b b a. Whether a discharge upgraded under the SDRP would have been upgraded under DoD Directive 1332.28. (This applies only to mandatory rereviews under P.L. 95±126 or SDRP reviews.). b b b b. Character of discharge, where applicable1. b b b c. Reason for discharge, where applicable2. b b b 7. Advisory opinions* ...... 7. DoD Directive 1332.28, enclosure 3, subsection H.12., Stipulation (Jan. 31, 1977) para. 5.A.(1)(f) (reference (1)). b b b 8. Recommendation of DRB President ...... 8. DoD Directive 1332.28, enclosure 3, subsection H.12., Stipulation (Jan. 31, 1977) para. 5.A.(1)(g) (reference (1)). b b b 9. A record of voting ...... 9. DoD Directive 1332.28, enclosure 3, subsection H.13., Stipulation (Jan. 31, 1977) para. 5.A.(3) (reference (1)).

290 Office of the Secretary of Defense § 70.10

Yes No NA Item Source

b b b 10. Indexing of decisional document ...... 10. DoD Directive 1332.28, enclosure 3, subsection H.14., Stipulation (Jan. 31, 1977) para. 5.A.(5)(a) (reference (1)). b b b 11. Authentication of decisional document. (This require- 11. DoD Directive 1332.28, en- ment applies only to discharge reviews conducted on or closure 3, subsection H.15. after March 29, 1978.) b b b 12. Other ...... 12. As appropriate.

Explanation of items marked ``No.''

Key: Yes: The decisional document meets the requirements of the Stipulation of Dismissal and, when applicable, DoD Directive 1332.28. No: The decisional document does not meet the requirements of the Stipulation of Dismissal or DoD Directive 1332.28. NA: Not applicable. *Items marked by an asterisk do not necessarily pertain to each review. If the decisional document contains no reference to such an item, NA shall be indicated. When there is a specific complaint with respect to an item, the underlying discharge review record shall be examined to address the complaint. 1 In this instance ``when applicable'' means all reviews except: a. Mandatory rereviews under P.L. 95±126 or SDRP reviews. b. Reviews in which the applicant requested only a change in the reason for discharge and the DRB did not raise the character of discharge as a decisional issue. 2 In this instance ``when applicable'' means all reviews in which: a. The applicant requested a change in the reason for discharge. b. The DRB raised the reason for discharge as a decisional issue. c. A change in the reason for discharge is a necessary component of a change in the character of discharge.

ATTACHMENT 4.ÐISSUES WORKSHEETS1

Corrective Listed Addressed action required

A. Decisional issues providing a basis for the conclusion regarding a change in the character of or reason for discharge. (DoD Directive 1332.28, enclosure 3, subsection D.2): 1. b b b 2. b b b 3. b b b B. Items submitted as issues by the applicant that are not identified as decisional issues. (DoD Directive 1332.28, enclosure 3, subsection D.3): 1. b b b 2. b b b 3. b b b C. Remarks:

1 This review may be made based upon the decisional document without reference to the underlying discharge review record except as follows: if there is an allegation that a specific contention made by the applicant to the DRB was not addressed by the DRB. In such a case, the complaint review process shall involve a review of all the evidence that was before the DRB, including the testimony and written submissions of the applicant, to determine whether the contention was made, and if so, whether it was addressed adequately with respect to the Stipulation of Dismissal and, when applicable, DoD Directive 1332.28. This review may be based upon the decisional document without reference to the regulation governing the discharge in question except as follows: if there is a specific complaint that the DRB failed to address a specific factor required by applicable regulations to be considered for determination of the character of and reason for the discharge in question [where such factors are a basis for denial of any of the relief requested by the applicant]. (The material in brackets pertains only to discharge reviews conducted on or before March 28, 1978.)

291 § 70.10 32 CFR Ch. I (7–1–97 Edition)

ATTACHMENT 5—OFFICE OF THE ASSISTANT ent with the defects noted in the attach- SECRETARY OF DEFENSE (MANPOWER, RE- ment. SERVE AFFAIRS, AND LOGISTICS) Deputy Assistant Secretary of Defense Review of Complaint (DASD(MP&FM)) (Military Personnel & Force Management) Remarks: Military Department: ATTACHMENT 7 Decisional Document Number: Dear lll: Name of Complainant: It has been determined that the decisional document issued in your case by the (Army) Name of Applicant: (Navy) (Air Force) Discharge Review Board during the (Special Discharge Review Pro- Docket Number: gram) (rereview program under Pub. L. No. Date of this Review: 95–126) should be reissued to improve the clarity of the statement of findings, conclu- 1. Each allegation is addressed as follows: sions, and reasons for the decision in your a. Allegation. case. b. Conclusion whether corrective action is In order to obtain a new decisional docu- required. ment you may elect one of the following op- c. Reasons in support of the conclusion, in- tions to receive a new review under the (Spe- cluding findngs of fact upon which the con- cial Discharge Review Program) (rereview clusion is based. program mandated by Pub. L. No. 95–126): NOTE: If the DASD(MP&FM) agrees with 1. You may request a new review, including the JSRA, he may respond by entering a a personal appearance hearing if you so de- statement of adoption. sire, by responding on or before the suspense 2. Other defects noted in the decisional date noted at the top of this letter. Taking document or index entries: this action will provide you with a priority 3. Determinations: review before all other classes of cases. [ ] No further action on the complaint is 2. You may request correction of the origi- warranted. nal decisional document issued to you by re- [ ] Corrective action consistent with the sponding on or before the suspense date above comments is required. noted at the top of this letter. After you re- Deputy Assistant Secretary of Defense ceive a corrected decisional document, you (Military Personnel & Force Management) will be entitled to request a new review, including a personal appearance hearing if you ATTACHMENT 6—OFFICE OF THE ASSISTANT so desire. If you request correction of the SECRETARY OF DEFENSE (MANPOWER, RE- original decisional document, you will not SERVE AFFAIRS, AND LOGISTICS) receive priority processing in terms of correcting your decisional document or provid- Review of Amended Decisional Document ing you with a new review; instead, your (DASD (MP&FM)) case will be handled in accordance with Military Department: standard processing procedures, which may mean a delay of several months or more. Decisional Document Number: If you do not respond by the suspense date noted at the top of this letter, no action will Name of Complainant: be taken. If you subsequently submit a complaint about this decisional document, it Name of Applicant: will be processed in accordance with stand- Docket Number: ard procedures. To ensure prompt and accurate processing Date of this Review: of your request, please fill out the form below, cut it off at the dotted line, and re- Recommendation: turn it to the Discharge Review Board of the [ ] The amended decisional document Military Department in which you served at complies with the requirements of the Stipu- the address listed at the top of this letter. lation of Dismissal and, when applicable, Check only one: DoD Directive 1332.28. No further corrective [] I request a new review of my case on a action is warranted. priority basis. I am requesting this priority [ ] The amended decisional document does review rather than requesting correction of not comply with the Stipulation of Dismissal the decisional document previously issued to or DoD Directive 1332.28 as noted herein. me. I have enclosed DD Form 293 as an appli- Further corrective action is required consist- cation for my new review.

292 Office of the Secretary of Defense § 70.11

[ ] I request correction of the decisional for the preceding 6-month reporting pe- document previously issued to me. I under- riod (October 1 through March 31 and stand that this does not entitle me to prior- April 1 through September 30). ity action in correcting my decisional document. I also understand that I will be able to (b) The reporting period will be inclu- obtain a further review of my case upon my sive from the first through the last request after receiving the corrected days of each reporting period. decisional document, but that such a review (c) The report will contain four parts: will not be held on a priority basis. Dates ———————————————————— (1) Part 1. Regular Cases. Signatures ————————————————— (2) Part 2. Reconsideration of Presi- Printed Name and Address dent Ford’s Memorandum of January ———————————————————————— 19, 1977, and Special Discharge Review [47 FR 37785, Aug. 26, 1982, as amended at 48 Program Cases. FR 9856, Mar. 9, 1983] (3) Part 3. Cases Heard under Pub. L. 95–126 by waiver of 10 U.S.C. 1553, with § 70.11 DoD semiannual report. regard to the statute of limitations. (a) Semiannual reports will be sub- (4) Part 4. Total Cases Heard. mitted by the 20th of April and October

293 § 70.11 32 CFR Ch. I (7–1–97 Edition) ap- Per- cent proved Total ) proved Number ap- (FY OARD B Applied EVIEW R proved ISCHARGE Percent ap- D Personal appearance proved TATISTICS FOR Number ap- S UMMARY OF Applied [Sample format] proved Percent ap- ÐRCS DD±M(SA) 1489; S proved Number ap- EPORT Nonpersonal appearance DRB R Applied EMIANNUAL S Identify numbers separately for traveling panels, regional or hearing examiners, as appropriate. Use of additional footnotes to clarify or amplify the statistics being reported is encouraged. Name of board Note: ......

294 Office of the Secretary of Defense § 71.3

PART 71—ELIGIBILITY REQUIRE- (b) Commuting area. A designated geo- MENTS FOR EDUCATION OF graphical area surrounding a DoD de- MINOR DEPENDENTS IN OVER- pendents school within which pupil transportation at U.S. Government ex- SEAS AREAS pense is provided for DoD dependent students, except for those living within Sec. 71.1 Purpose. walking distance of the school (See 71.2 Applicability. DoD 4500.36–R). 71.3 Definitions. (c) Correspondence courses. Home or 71.4 Policy. supplemental instruction courses for 71.5 Eligibility requirements. DoD dependent students who live in 71.6 Responsibilities. areas where there are no suitable fa- 71.7 Eligibility requirements for education cilities, for handicapped DoD depend- of minor dependents and other persons in the Republic of Panama. ent students who cannot attend school, and for the supplementation of course AUTHORITY: 10 U.S.C. 921–932 (Supp. IV offerings at DoD dependents schools or 1980). approved non-DoD dependents schools. SOURCE: 47 FR 52701, Nov. 23, 1982, unless (d) DoD dependents schools. Schools otherwise noted. established by the Department of De- fense in overseas areas to provide pri- § 71.1 Purpose. mary and secondary education for This part replaces DoD Instruction minor dependents of DoD sponsors. 1342.10 and DoD Instruction 1342.4, and (e) DoD dependents schools with Dor- implements 20 U.S.C. 921–932, to: mitories. Residence facilities operated (a) Update the policy and eligibility at certain DoDDS schools, usually at requirements for education of DoD de- the high school level and primarily but pendent students in overseas areas. not exclusively to provide room and (b) Authorize the enrollment of other board for DoD dependent students who minor dependents in DoD dependents are authorized to accompany their DoD schools conditioned upon available sponsors to locations where there are space and payment of tuition. no appropriate educational facilities available locally. § 71.2 Applicability. (f) DoD dependent student. A minor This part applies to the Office of the dependent who: Secretary of Defense, the Military De- (1) Is the child, stepchild, adopted partments, the Organization of the child, ward, or spouse of a DoD sponsor, Joint Chiefs of Staff, the Unified and or who is a resident in the household of Specified Commands, and the Defense a DoD sponsor who stands in loco Agencies (hereafter referred to collec- parentis to such individual and who re- tively as ‘‘DoD Components’’). The ceives one-half or more of his or her term ‘‘Military Services,’’ as used here- support from such sponsor; and in, refers to the Army, Navy, Air (2) Has not completed secondary Force, and Marine Corps. school and who will reach his or her 5th but not 21st birthday by December § 71.3 Definitions. 31 of the current school year; or The terms used in this part are de- (3) Is handicapped, and is between 3 fined below. and 5 years of age by December 31 of (a) Approved non-DoD dependents the current school year, provided that schools. Schools, including dormitory the Director, DoDDS, or designee, in facilities, other than DoD dependents his or her sole discretion, determines schools, that provide suitable edu- that adequate staff and facilities are cational programs, usually on a tuition available to serve such a handicapped basis. The term includes residence fa- child. cilities operated by approved non-DoD (g) DoD sponsor. A Military Service dependents schools to provide room member serving on active duty and sta- and board for eligible handicapped de- tioned overseas or a civilian employee pendents when DoD dependents schools of the Department of Defense who is cannot provide an appropriate edu- employed on a full-time basis, paid cation. from appropriated funds, and stationed

295 § 71.4 32 CFR Ch. I (7–1–97 Edition) overseas, and who is either a U.S. citi- and in that priority, and pursuant to zen or a person lawfully accorded the paragraph (e) of this section. privilege of residing permanently in (a) Space-required, tuition-free. (1) the United States as an immigrant in Command-sponsored DoD dependent accordance with the United States im- students shall, upon the request of migration laws (8 U.S.C. ‘‘Aliens and their DoD sponsor, be enrolled in DoD Nationality’’). dependents schools on a space-required, (h) Full-time students. Panama Canal tuition-free basis. However, costs for College students enrolled in courses for the education of minor dependents of 12 or more credit hours during the fall DoD sponsors working for the DoD Se- and spring semesters of one school curity Assistance Program shall be year. paid from DoD Security Assistance (i) Overseas area. Any area situated Program funds. outside the United States (the States, (2) If, as determined by the Director, the District of Columbia, the Common- DoD Dependents Schools (DoDDS), or wealth of Puerto Rico, and the posses- designee, no DoD dependents school is sions of the United States (excluding available within the commuting area, the Trust Territory of the Pacific Is- command-sponsored DoD dependent lands and Midway Island)) students are eligible for education in (j) Part-time students. Panama Canal approved non-DoD dependents schools College students enrolled in courses for at U.S. Government expense, usually in 11 or fewer credit hours during the fall that same foreign country, or in DoD and spring semesters of one school dependents schools with dormitories, year, and all students enrolled during or through correspondence courses at the summer session. (k) Space-required. Pupil accommoda- U.S. Government expense. tions that must be provided by the DoD (3) DoD dependent students may be dependents schools. provided education in approved non- (l) Space-available. Pupil accommoda- DoD dependents schools or may receive tions that may be made available in correspondence courses at U.S. Govern- DoD dependents schools if the Director, ment expense only at locations where DoDDS, or designee, determines that a DoD dependents schools are not avail- school operated by DoDDS has ade- able or are operating at maximum ca- quate staff and other resources to per- pacity. Only those non-DoD dependents mit the enrollment of nonspace-re- schools with programs considered sat- quired students. isfactory by the Director, DoDDS, or designee, shall be approved to provide § 71.4 Policy. education at U.S. Government expense (a) It is the policy of the Department to DoD dependent students. In all of Defense: cases, the payment of tuition in ap- (1) That, while overseas, DoD depend- proved non-DoD dependents schools by ent students may be enrolled in DoD the U.S. Government is limited to dependents schools or approved non- those DoD dependent students who are DoD dependents schools, or may take authorized transportation at U.S. Gov- correspondence courses at U.S. Govern- ernment expense to or from an over- ment expenses, under the conditions seas area, if their DoD sponsor is mili- prescribed in § 71.5. tary, and to those DoD dependent stu- (2) To allow the enrollment of other dents whose DoD sponsor, if civilian, is minor dependents in DoD dependents eligible for a living quarters allowance, schools, provided that space is avail- as authorized by the Department of able and that tuition is paid. State Standardized Regulations and (b) Section 57 of this title provides DoD 1400.25–M. guidance concerning the education of (4) If adequate housing is available handicapped children. within the commuting area of a DoD dependents school and an appropriate § 71.5 Eligibility requirements. educational program is available at Students may be enrolled in the DoD that school, tuition will not be author- dependents schools pursuant to para- ized for the attendance of DoD depend- graphs (a) through (d) of this section, ent students in an approved non-DoD

296 Office of the Secretary of Defense § 71.5 dependents school in that same local- quently shall lose their eligibility to ity, except as authorized in paragraph attend, except on a space-available, (a)(3) of this section. DoD dependent tutition-free basis in a DoD dependents students who currently are enrolled in school as prescribed in paragraph (c)(2) an approved non-DoD dependents of this section. school and who would be adversely af- (9) If DoD dependent students are au- fected by this limitation may, at the thorized to accompany their DoD spon- discretion of the Director, DoDDS, or sor to the country of the sponsor’s as- designee, be authorized to continue in signment, such dependent students or- attendance in that approved non-DoD dinarily will not be entitled to space- dependents school through the 1984–85 required, tuition-free education in a school year, or until the rotation of the DoD dependents school in a different DoD sponsor out of the command, overseas country or to education in a whichever is earlier. non-DoD dependents school at U.S. (5) Approved non-DoD dependents Government expense in that different schools that are available free of country. Any exceptions to this policy charge and that offer instructional pro- must be approved by the Director, grams in English should be used, if fea- DoDDS, or designee. sible, before contracting for education (b) Space-available, tuition-paying (fed- in approved non-DoD dependents erally connected). Under section 1404(c) schools that charge tuition. of the ‘‘Defense Dependents’ Education (6) If no DoD dependents school with- Act of 1978’’, if the Director, DoDDS, or in the commuting area of a handi- designee, determines that space is capped DoD dependent student is able available, consistent with the local to provide an appropriate education to military commander’s policy concern- that student, DoDDS may place the ing access to the installation and student in another DoD dependents agreements with the host nation, other school. If no appropriate DoD depend- minor dependents in the categories ents school is reasonably available, specified in this subsection may be en- DoDDS then may place the student at rolled in a DoD dependents school upon U.S. Government expense in an ap- payment of tuition. The amount of tui- proved non-DoD dependents school tion shall be determined by the Direc- overseas. DoDDS may place a handi- tor, DoDDS, or designee, and may not capped DoD dependent student in an be less than the rate necessary to cover approved non-DoD dependents school in the average cost of enrollment of chil- the United States only if no appro- dren in the DoD dependents schools. priate school is reasonably available Clarification on how tuition rates are overseas. DoDDS may not place a non- determined is contained in DoD Direc- DoD dependent student in a non-DoD tive 4000.19 and DoD Instruction 7230.7. dependents school at U.S. Government Minor dependents in this category may expense. be enrolled in the following priority: (7) DoD dependent students who are (1) Minor dependents of other U.S. the dependents of a DoD sponsor who is Government agency employees sta- detained by a foreign power or is de- tioned overseas. clared missing in action or otherwise (2) Minor dependents of U.S. citizens unlawfully detained may remain in a who have executed contracts or who DoD dependents school, or in an ap- are employed by parent organizations proved non-DoD dependents school, at that have executed contracts or other U.S. Government expense for as long as agreements with the Department of the detention or missing status exists, Defense when the applicable contract subject to the approval of the Director, or agreement authorizes dependent DoDDS, or designee. education on a tuition basis in the DoD (8) DoD dependent students who are dependents schools. A copy of the docu- authorized attendance in a DoD de- ment authorizing attendance shall be pendents school or an approved non- presented to the appropriate DoD de- DoD dependents school may complete pendents school official at the time of the current school year if the DoD enrollment. Examples of individuals sponsor is transferred, dies, or retires whose minor dependents are covered by during the school year, but subse- this paragraph include:

297 § 71.6 32 CFR Ch. I (7–1–97 Edition)

(i) Nonappropriated fund instrumen- the dependent is below school age when talities (universal annual) employees. the sponsor dies, within 1 year of the (ii) Defense contractor personnel. dependent’s becoming eligible to en- (iii) United Services Organizations, roll. Inc., personnel. (3) Noncommand-sponsored DoD de- (iv) American Red Cross personnel. pendents who are enrolled in a DoD de- (3) Minor dependents of host-nation pendents school may remain in a DoD or third-country national military or dependents school if their sponsor is civilian personnel accompanying or declared missing in action or otherwise serving with the Military Services unlawfully detained for as long as the overseas, when recommended by the detention or missing status exists, sub- major overseas commander and when ject to the approval of the Director, approved by the Director, DoDDS, or DoDDS, or designee. designee. (d) Space-available, tuition-paying (4) Minor dependents of other spon- (nonfederally connected). Under section sors who are serving the national de- 1404(c) of the ‘‘Defense Dependents’ fense interest, as determined by the Di- Education Act of 1978’’, the following rector, DoDDS, or designee. minor dependents may be enrolled in a (c) Space-available, tuition-free. Under DoD dependents school upon payment section 1404(c) of the ‘‘Defense Depend- of tuition if the Director, DoDDS, or ents’ Education Act of 1978’’, the fol- designee, determines that space is lowing classes of DoD dependent stu- available: dents may be enrolled, in the priority (1) Dependents of U.S. citizens resid- given below, in DoD dependents schools ing in overseas areas, including depend- on a space-available, tuition-free basis: ents of retired personnel, or of deceased (1) Minor dependents of military DoD personnel not covered in paragraph sponsors who are stationed in overseas (c)(2) of this section. areas to which their dependents are not (2) Dependents of foreign nationals, authorized transportation at U.S. Gov- when there is no objection from the ernment expense or minor dependents host nation and when such inclusion of civilian DoD sponsors who are not does not displace or prevent inclusion entitled to a living quarters allowance of U.S. citizen-sponsored minor depend- as authorized by the Department of ents seeking admission on the same State Standardized Regulations and basis at the same time. DoD 1400.25–M, when the sponsors elect (e) Education in the Republic of Pan- to transport these dependents at their ama. Eligibility requirements for edu- own expense to overseas areas in which cation in the Republic of Panama are the sponsors are stationed (noncom- prescribed in § 71.7. mand-sponsored dependents). If at any time during a DoD sponsor’s overseas § 71.6 Responsibilities. assignment that sponsor’s minor noncommand-sponsored dependents be- (a) The Assistant Secretary of Defense come command-sponsored or the spon- (Manpower, Reserve Affairs, and Logis- sor acquires minor, command-spon- tics) shall monitor compliance with sored dependents, those dependents this part. shall be authorized ‘‘space-required, (b) The Heads of DoD Components tuition-free’’ status. shall comply with this part. (2) DoD dependent students who are (c) The Director, DoD Dependents dependents of DoD sponsors who die Schools, or designee, shall: while intitled to compensation or ac- (1) Authorize the attendance of DoD tive duty pay at the time of the spon- dependent students in DoD dependents sor’s death, provided that the surviving schools or approved non-DoD depend- spouse either was residing in an over- ents schools, or provide correspondence seas area when the sponsor died or has courses at U.S. Government expense, in been a citizen of a foreign country and accordance with this part. returns to that country. The DoD de- (2) Authorize the enrollment of other pendent student must be enrolled in a minor dependents in DoD dependents DoD dependents school either within 1 schools, in accordance with this part, year of the DoD sponsor’s death or, if and establish priorities among those

298 Office of the Secretary of Defense § 71.7 dependents within an eligibility cat- § 71.7 Eligibility requirements for edu- egory. cation of minor dependents and (3) Provide information and guidance other persons in the Republic of to DoD sponsor regarding enrollment Panama. in DoD dependents schools, residence (a) The ‘‘Panama Canal Act of 1979’’ in DoD dependents school dormitories authorizes the extension of primary, or approved non-DoD dependents secondary, and postsecondary edu- schools dormitories, enrollment in ap- cational services to DoD dependent proved non-DoD dependents schools, students and other categories of de- and receipt of correspondence courses. pendents. Basic eligibility policy is de- (4) Establish, in coordination with scribed in § 71.5 of this part. Excep- the supporting installation or commu- tional eligibility requirements for edu- nity commander, commuting areas cation for dependents in the Republic around DoD dependents schools for the of Panama are addressed below. purpose of determining eligibility for (b) Minor dependents may be enrolled transportation of DoD dependent stu- in DoD dependents schools or approved dents. (See DoD 4500.36–R.) non-DoD dependents schools in the Re- (5) Periodically review the edu- public of Panama or may receive correspondence courses at U.S. Govern- cational programs in approved non- ment expense under the conditions and DoD dependents schools that are used in the priority indicated below. to educate DoD dependent students to (1) Space required, tuition-free edu- ensure that these programs are satis- cation and education in approved non- factory. DoD dependents schools. In addition to (d) Commanders of overseas installa- DoD dependent students entitled to re- tions, military communities, or activities ceive space-required, tuition-free edu- shall: cation from DoDDS under § 71.5 of this (1) Advise incoming and newly as- part, the following minor dependents in signed personnel about the DoD de- the Republic of Panama are authorized pendent schools’ commuting areas and ‘‘space-required tuition-free’’ status: the extent of pupil transportation serv- (i) Minor dependents of host-nation ice supporting the local DoD depend- or third-country citizens employed by ents schools. the Department of Defense and paid (2) Assist incoming and newly as- from appropriated funds, provided that signed personnel in obtaining housing such dependents were enrolled on a tui- within the commuting area of the local tion-free basis in schools operated by DoD dependents school, if feasible. the former Canal Zone Government on (3) Advise incoming and newly as- September 30, 1979, as then authorized signed personnel that, if adequate for residents of the former Canal Zone. housing is available within the com- This provision applies only for uninter- muting area of a DoD dependents rupted enrollments. school and if the DoD sponsor’s place of (ii) Minor dependents of host-nation employment is also reasonably acces- or third-country citizen employees transferred to the Department of De- sible from that commuting area, tui- fense on October 1, 1979, and paid from tion assistance will not be available to appropriated funds may attend ap- provide education in approved non-DoD proved non-DoD dependents schools in dependents schools for minor depend- the Republic of Panama at U.S. Gov- ents of DoD sponsors who elect to re- ernment expense when such dependents side beyond the commuting area of a were enrolled in a non-DoD dependents DoD dependents school. (see DoD school under the authority and at the 4500.36) expense of the former Canal Zone Gov- (4) Inform incoming and newly as- ernment/Panama Canal Company on signed personnel that they will not be September 30, 1979. This provision ap- reimbursed for unauthorized enroll- plies only for uninterrupted enrollments in non-DoD dependents schools. ments.

299 § 71.7 32 CFR Ch. I (7–1–97 Edition)

(2) Space-required, tuition-paying edu- egories of persons may be enrolled at cation. Dependents not specifically au- the Panama Canal College on a full- or thorized tuition-free education in para- part-time basis, in the priority given graph (b)(1) of this section, or in § 71.5 below provided the applicant meets of this part, when such dependents academic admissions requirements. were enrolled in schools operated by (i) Active duty members of the Mili- the former Canal Zone Government on tary Services who are stationed in Pan- September 30, 1979, regardless of affili- ama and family members living with ation or citizenship of sponsors. This them (unless authorized DoD-sponsored provision applies only for uninter- education under paragraph (c)(1) of this rupted enrollments. section. (c) Persons may be enrolled in the (ii) U.S.-citizens employees of the De- Panama Canal College under the condi- partment of Defense and other U.S. tions and in the priority listed below: Government agencies, including the (1) Tuition-paying, DoD-sponsored edu- Panama Canal Commission, and family cation. All students at the Panama members living with them (unless au- Canal College attend on a tuition-pay- thorized DoD-sponsored education ing basis. The Department of Defense under paragraph (c)(1) of this section). may assume a portion of the tuition (iii) Host-nation or third-country cit- cost for full-time students who are izen employees of the Panama Canal minor dependents of: Commission or other U.S. Government (i) Military DoD sponsors who are on agency, district dentists, religious active duty and stationed in the Re- workers, and family members living public of Panama. with them, when such persons were en- (ii) Civilian DoD sponsors stationed rolled in a Canal Zone school on a tui- in the Republic of Panama who are tion-free basis or under the sponsorship paid from appropriated funds and who of the former Canal Zone Government/ have been lawfully accorded the privi- Panama Canal Company on September lege of residing permanently in the 30, 1979, as was then authorized for resi- United States as immigrants in accord- dents of the former Canal Zone. ance with the United States immigra- (iv) Minor dependents of Canal Zone tion laws (8 U.S.C. ‘‘Aliens and Nation- Government/Panama Canal Company ality’’). host-nation or third-country citizen (iii) Members of the Military Serv- employees separated through reduction ices who are detained by a foreign in force action and not reemployed by power or declared missing in action or another U.S. Government agency, when otherwise unlawfully detained for as such dependents were enrolled in the long as the detention or missing status former Canal Zone school system on continues to exist. Under these cir- September 30, 1979. cumstances, authorization for the de- (v) U.S. citizens not specifically ad- pendents to remain in the College with dressed above who reside in the Repub- DoD tuition assistance must be ob- lic of Panama. tained from DoDDS officials and the (vi) Host-nation and third-country local military commander. citizens not specifically addressed (iv) If a sponsor discussed in para- above who reside in the Republic of graph (c)(1) (i), (ii), or (iii) of this sec- Panama when there is no objection tion, is transferred, retires, or dies dur- from the government of Panama and ing the college semester, the sponsor’s when such inclusion does not displace dependents may complete the current or prevent inclusion of U.S. citizens semester, but subsequently shall lose seeking admission on the same basis at their eligibility to attend the Panama the same time. Canal College. (2) Tuition-paying—other. At the dis- PART 72—VOLUNTARY EDUCATION cretion of the Director, DoDDS, or des- PROGRAMS IN OVERSEAS AREAS ignee, and when consistent with the local military commander’s policy con- Sec. cerning access to the area of military 72.1 Purpose. coordination and agreements with the 72.2 Applicability and scope. Republic of Panama, the following cat- 72.3 Responsibilities.

300 Office of the Secretary of Defense § 72.5

72.4 Procedures. ings at one or more installations to one 72.5 Effective date and implementation. institution or a prescribed maximum AUTHORITY: Pub. L. 99–145, section 1212. number of institutions. (2) Delegate the authority in SOURCE: 53 FR 22648, June 17, 1988, unless otherwise noted. § 72.3(a)(1) but not below the level of a general or flag officer, or a civilian § 72.1 Purpose. equivalent. This part: § 72.4 Procedures. (a) Prescribes uniform procedures and assigns responsibilities for the (a) Under this part, ‘‘unnecessary du- Military Services to avoid the unneces- plication’’ means the provision of edu- sary duplication of postsecondary education services by two or more poten- cation offerings in overseas areas under tial offerers which, because of such du- Pub. L. 99–145, section 1212 and DoD Di- plication, is determined to have an ad- rective 1322.8.1 verse effect on the provision of the edu- (b) Under Pub. L. 145, section 1212: cation services provided in the theater (1) Reflects the statutory require- concerned, consistent with ensuring ment, subject to the exceptions in the maximum availability of alter- § 72.1(b)(2) that no solicitation, con- native offerers of such services. tract, or agreement for off-duty post- (b) One or more of the following cri- secondary education services for mili- teria must be satisfied to limit the tary members, DoD civilian employees, number of providers of postsecondary or the dependents of such military education services: members or employees, other than for (1) The demographic distribution of services at the graduate or post- the potential student population pre- graduate level, may limit the offering vents the effective delivery of post- of such services or any group, category, secondary education services by mul- or level of courses to a single academic tiple offerers. institution. (2) Adequate classroom and adminis- (2) Prescribes criteria for avoiding trative space to meet education pro- the unnecessary duplication of edu- gram needs is not available to multiple cational services by exercising the au- providers. thority in Pub. L. 99–145 to grant ex- (3) DoD educational staff needed to ceptions, when required, to § 72.1(b)(1). manage education programs at the installation level are not available. § 72.2 Applicability and scope. (4) The theater commander cannot This part: provide reasonable logistic support to (a) Applies to the Office of the Sec- installations and persons employed in retary of Defense (OSD) and the Mili- providing education programs if there tary Departments. are multiple providers. Logistic sup- (b) Shall be extended to all persons port includes supplies, services, facili- seeking or receiving off-duty post- ties, transportation, privileges and secondary education services, as de- other benefits provided to nongovern- scribed in § 72.1(b)(1). mental entities or individuals. (c) Where necessary, the enrollments § 72.3 Responsibilities. generated at large installations may be (a) Each Overseas Theater Commander used to balance the enrollments at shall implement this part and may: small or remote locations to provide (1) When necessary to avoid unneces- for economies of scale and to ensure sary duplication of offerings of post- availability of the widest range of edu- secondary education services, author- cation services possible at reasonable ize the issuance of solicitations and the tuition rates, consistent with § 72.4(a) execution of contracts and agreements of this part. that limit the provision of such offer- § 72.5 Effective date and implementation. 1 Copies may be obtained, if needed, from the U.S. Naval Publication and Forms Cen- This part is effective May 9, 1988. ter, Attn: Code 1052, 5801 Tabor Avenue, Forward one copy of implementing Philadelphia, PA 19120. documents to the Assistant Secretary

301 Pt. 73.1 32 CFR Ch. I (7–1–97 Edition) of Defense (Force Management and actions; the training of operators and Personnel) within 120 days. maintainers to diagnose and address possible equipment faults; enhanced PART 73—TRAINING SIMULATORS proficiency despite shortages of equip- AND DEVICES ment, space, ranges, or time; control of life-cycle training costs; and reducing Sec. systems required in maintenance train- 73.1 Purpose. ing. 73.2 Applicability and scope. (d) Emphasizes that training simula- 73.3 Definitions. tors and devices are integral parts of 73.4 Policy. 73.5 Responsibilities. an overall training system. Those 73.6 Procedures. training systems without training sim- 73.7 Effective date and implementation. ulators or devices specifically are ex- AUTHORITY: 5 U.S.C. 301 and 10 U.S.C. 133. cluded from this part. SOURCE: 51 FR 35512, Oct. 6, 1986, unless § 73.2 Applicability and scope. otherwise noted. (a) This part applies to the Office of § 73.1 Purpose. the Secretary of Defense (OSD) and the This part: (a) Establishes training Military Departments, including their simulator and device development, ac- National Guard and Reserve compo- quisition, and utilization policy imple- nents. The term ‘‘Military Services,’’ menting Assistant Secretary of De- as used herein, refers to the Army, fense memorandum dated October 5, Navy, Air Force, Marine Corps, and the 1984 in accordance with DoD Directive National Guard and Reserve compo- 5000.1,1 DoD Instruction 500.2,1 DoD Di- nents. rective 5000.3,1 DoD Directive 5000.39,1 (b) This part shall not be construed DoD Directive 5000.19,1 DoD Instruction to usurp management prerogatives or 7041.3,1 DoD 7110.1–M, and Executive responsibilities of the Military Depart- Order 12344. ments or their Guard or Reserve Com- (b) Provides guidance for establishing ponents. Service policy for training simulators (c) For reporting purposes supporting and devices. acquisition review for training simula- (c) Authorizes the Department of De- tors or devices supporting a major sys- fense to use training simulators and tem or comprising nonsystem training devices to make training systems more effective and to help maintain military equipment, the dollar thresholds shall readiness. Emphasizes the relationship be those established in DoD 7110.1–M, between the system(s) supported and part II. the training system and supports the (d) When the Secretary of Defense requirements for coincident develop- designates any training simulator or ment and concurrency between the sys- device as being of significant interest tem(s) supported and the training sys- based on criteria other than cost, the tem. A systematically developed train- Military Service concerned shall pro- ing system with appropriate training vide the documentation required by simulators, devices, and embedded this part. training capability cost-effectively (e) The policies of this part shall be provides training for any given weapon followed regardless of the cost of the or support system. Properly used, such training simulators or devices. training simulators and devices facili- (f) In accordance with the respon- tate: training that might be imprac- sibilities in E.O. 12344, the Department tical or unsafe if done with actual sys- of Energy (DoE) has cognizance over tems or equipment; concentrated prac- the development of training systems tice in selected normal and emergency and devices used in the training of naval nuclear propulsion plant opera- 1 Copies may be obtained, if needed, from tors. Such systems and devices are not the U.S. Naval Publications and Forms Cen- ter, ATTN: Code 301, 5801 Tabor Avenue, covered by this Directive, but are co- Philadelphia, PA 19120. ordinated separately with DoE.

302 Office of the Secretary of Defense § 73.4

§ 73.3 Definitions. viewed with the parent major system. Embedded training. Training using Major system training devices shall be operational equipment that involves identified in the acquisition process in simulating or stimulating of equip- the Integrated Program Summary ment performance. (IPS), in accordance with DoD Instruc- Non-system training device. A training tion 5000.2. Those training devices that simulator or device not supporting a are not included in a major system ac- single, specific, parent defense system. quisition should be identified and justi- Training simulator and/or device. Hard- fied in relation to a specific training ware and software designed or modified program or course. The Military Serv- exclusively for training purposes in- ices shall ensure that all development, volving simulation or stimulation in procurement, operation, and support its construction or operation to dem- costs are programmed and funded. onstrate or illustrate a concept or sim- (3) These policies do not imply that a ulate an operational circumstance or training system, simulator, or device environment. Under this part, training must be procured from the prime con- simulators and devices are considered tractor for the defense system being part of an overall training system that supported. may or may not be identified as part of (4) The acquisition of a training sys- a parent defense system. Under this tem that supports a new defense sys- part, the term training device shall tem or equipment shall be assigned the apply to training simulators and de- same priority as that of the parent sys- vices. tem or equipment. Training system. A systematically de- (5) Those training devices dedicated veloped curriculum including, but not to defense systems or equipment necessarily limited to, courseware; should be available in time for the classroom aids; training simulators fielding of the parent system. and devices; operational equipment; (6) These policies and the guidelines embedded training capability; and per- to implement them apply to acquisi- sonnel to operate, maintain, or employ tion funds from advanced development a system. The training system includes through procurement. all necessary elements of logistic sup- (7) Joint-Services acquisition of comport. mon training devices should be fully considered in each Military Service’s § 73.4 Policy. training analysis and planning. (a) General. (1) It is DoD policy to op- (b) Development planning guidelines. timize the operational readiness of the (1) Once a training device requirement total forces by effecting the develop- has been established, the training de- ment and acquisition of training device program must be described and vices, in accordance with DoD Direc- documented in a Military Service’s ap- tive 5000.1. The requirement for devel- proved development plan (DP) or equiv- opment and acquisition of training de- alent before development of the train- vices shall be based on a Military Serv- ing device may proceed. ice’s training requirements analysis (2) The DP, which documents the process. The analysis shall define the Military Service’s training require- training need, determine whether ex- ment, must integrate the proposed, isting training devices shall satisfy the specific training device hardware or training requirement, and evaluate the software system being developed and benefits and tradeoffs of potential al- acquired with the training system for ternative training solutions. This proc- which it is intended. ess shall consider how recommended (3) The DP shall address the follow- training devices shall function in the ing items as data become available: National Guard and Reserve environ- (i) Assessment of Training need and ment and how they shall meet any expected benefit from the training de- unique National Guard and Reserve vice(s). training needs. (ii) Description of the training de- (2) All training devices supporting vice(s). and unique to a major system acquisi- (iii) Acquisition and modification tion should be documented and re- schedule.

303 § 73.5 32 CFR Ch. I (7–1–97 Edition)

(iv) Ability of the training devices to system training devices meeting the maintain or improve safety. documentation threshold. These action (v) Course and training estimates in- officers shall: cluding projected student flows and (i) Monitor the status of training de- loads, requirements for instructors and vices, as assigned. other staff, location of training facili- (ii) Review Military Service-provided ties, and other training requirements. DPs. (c) Acquisition guidelines. (1) Training (iii) Obtain such reports and informa- device alternatives including, but not tion as may be necessary in performing limited to, trainers, general versus spe- assigned functions, in accordance with cific devices, real equipment versus DoD Directive 5000.19. simulated equipment, and embedded (3) Review the Military Service’s training capability should be evaluated Regulations, Manuals, or Instructions by the Military Service concerned. implementing this part. Where applicable, economic analyses of (4) Review the Military Service’s ac- alternatives should be conducted in acquisition documentation to identify cordance with the methods and as- areas of potential joint applicability. sumptions in DoD Instruction 7041.3. (5) Respond to Congressional inquir- The evaluation of each alternative ies on implementation of this part and should consider as appropriate: results achieved. (i) Life-cycle use versus costs. (ii) Trade-off with requirements for (6) Administer a continuing review of munitions, if applicable. policy on training devices, updating (iii) Capability of the training de- this part as necessary. vice(s) to accommodate changes made (b) The head of each DoD component to the parent defense systems based on shall: data on minimum and maximum (1) Ensure development of the Mili- changes made over the life cycle of tary Service’s documents implement- similar defense systems. ing this part. (iv) Student load and curriculum (2) Ensure that the Military Service’s changes or field application training charters for program managers of all changes anticipated during the life major defense system acquisitions ade- cycle. quately address their training device (2) When military specification responsibilities, and that program equipment is not required to meet per- managers are supported by training formance needs, commercial practices system managers. and equipment should be used to contain initial procurement and follow-on § 73.6 Procedures. support costs. Commercially available (a) OSD oversight for training de- training programs also deserve serious vices that support a major system or consideration. constitute major systems in them- (3) Specifications should cover train- selves, shall be accomplished during ing functions, performance levels, and the system acquisition review process. required proficiency. Military Service-approved DPs, which (d) Training effectiveness evaluation will evolve as data from detailed train- guidelines. Analysis of training capabil- ing analyses become available, shall be ity and potential should focus on data forwarded to OSD not later than the based on actual experience. Program Objectives Memorandum (POM) submission in which budget year § 73.5 Responsibilities. funds are requested for manufacture of (a) The Assistant Secretary of Defense the initial or prototype device(s), but for Force Management and Personnel in no case before the milestone listed (ASD(FM&P)) shall: in paragraph (1) or (2) of this section. (1) Monitor the Military Services’ Service charges to the DP shall be sub- compliance with this part. mitted to OSD as changes occur. (2) Designate action officers for (1) DPs for training devices integral training devices associated with major to a major system acquisition shall be system acquisitions’ constituting submitted to support the Decision Co- major systems in themselves, and non- ordinating Paper/Integrated Program

304 Office of the Secretary of Defense § 74.2 summary of the parent defense system memorandum. Requirements shall be by Milestone II. waived on a case-by-case basis for (2) For training devices designated training devices for which this imple- major systems acquisitions, DPs shall mentation date shall cause inordinate be submitted with, or incorporated cost of manpower expenditures. into, the System Concept Paper prepared for Milestone I. PART 74—APPOINTMENT OF DOC- (3) For non-system training devices, TORS OF OSTEOPATHY AS MEDI- DPs, shall be submitted not later than CAL OFFICERS the POM submission in which budget year funds are requested for manufac- Sec. ture of the prototype or the first de- 74.1 Purpose. vice. 74.2 Policy. (b) Training Effectiveness Evaluation Plan (TEEP). (1) The Training Effec- AUTHORITY: 10 U.S.C. 3294, 5574, 8294. tiveness Evaluation Plan shall be de- SOURCE: 25 FR 14370, Dec. 31, 1960, unless veloped as applicable with regard to otherwise noted. DoD Directive 5000.3 to ensure that acquired training devices meet the Mili- § 74.1 Purpose. tary Service’s training requirements The purpose of this part is to imple- and effectiveness levels. The TEEP ment the provisions of Pub. L. 763, 84th shall describe the Service’s plan to ac- Congress (70 Stat. 608), relating to the complish training effectiveness evalua- appointment of doctors of osteopathy tions, to the extent the Services deem as medical officers. appropriate, for training devices associated with each major defense system § 74.2 Policy. acquisition, training devices constitut- In the interest of obtaining maxi- ing major systems in themselves or mum uniformity, the following criteria non-system training devices that meet are established for the appointment of the threshold described in § 73.2 of this doctors of osteopathy as medical offi- section. cers: (2) The TEEP should document the (a) To be eligible for appointment as planned evaluation of the training Medical Corps officers in the Army and functions, performance levels, and pro- Navy or designated as medical officers ficiency requirements incorporated in in the Air Force, a doctor of osteop- the specifications. The TEEP should be athy must: approved by the sponsoring Service at (1) Be a citizen of the United States; least 6 months before the planned com- (2) Be a graduate of a college of oste- mencement of training effectiveness opathy whose graduates are eligible for evaluation. licensure to practice medicine or sur- (3) For training devices not meeting gery in a majority of the States, and be thresholds described in § 73.2 of this licensed to practice medicine, surgery, part, the Military Servcies are encour- or osteopathy in one of the States or aged to prepare, approve, and support a Territories of the United States or in TEEP at least 6 months before the the District of Columbia; planned commencement of training ef- (3) Possess such qualifications as the fectiveness evaluation. Secretary concerned may prescribe for his service, after considering the rec- § 73.7 Effective date and implementa- ommendations for such appointment tion. by the Surgeon General of the Army or This part is effective August 22, 1986. the Air Force or the Chief of the Bu- Forward one copy of each implement- reau of Medicine and Surgery of the ing document to the Assistant Sec- Navy; retary of Defense (Force Management (4) Have completed a minimum of and Personnel). Management reports three years college work prior to en- and information specified herein shall trance into a college of osteopathy; be submitted for training devices (5) Have completed a four-year course reaching the stated milestones begin- with a degree of Doctor of Osteopathy ning with FY 87 as required by the ASD from a school of osteopathy approved

305 § 75.1 32 CFR Ch. I (7–1–97 Edition) by the American Osteopathic Associa- participation as a combatant in war in tion; and any form, but whose convictions are (6) Have had subsequent to gradua- such as to permit military service in a tion from an approved school of osteop- noncombatant status. athy 12 months or more of intern or Unless otherwise specified, the term residency training approved by the ‘‘conscientious objector’’ includes both American Osteopathic Association. 1–O and 1–A–O conscientious objectors. (b) Religious training and belief. Belief PART 75—CONSCIENTIOUS in an external power or being or deeply OBJECTORS held moral or ethical belief, to which all else is subordinate or upon which Sec. all else is ultimately dependent, and 75.1 Purpose. which has the power or force to affect 75.2 Applicability and scope. moral well-being. The external power 75.3 Definitions. or being need not be of an orthodox 75.4 Policy. 75.5 Criteria. deity, but may be a sincere and mean- 75.6 Procedure. ingful belief which occupies in the life 75.7 Action after decision. of its possessor a place parallel to that 75.8 Claims of erroneous induction. filled by the God of another, or, in the 75.9 Required information to be supplied by case of deeply held moral or ethical be- applicants for discharge or noncombat- liefs, a belief held with the strength ant service. and devotion of traditional religious 75.10 Statement (counseling concerning conviction. The term ‘‘religious train- Veterans Administration benefits). 75.11 Statement (counseling concerning des- ing and belief’’ may include solely ignation as conscientious objector). moral or ethical beliefs even though the applicant himself may not charac- AUTHORITY: Sec. 552 of title 5, United terize these beliefs as ‘‘religious’’ in States Code. the traditional sense, or may expressly SOURCE: 36 FR 22231, Nov. 23, 1971, unless characterize them as not religious. The otherwise noted. term ‘‘religious training and belief’’ does not include a belief which rests § 75.1 Purpose. solely upon considerations of policy, This part updates uniform Depart- pragmatism, expediency, or political ment of Defense procedures governing views. conscientious objectors and processing (c) Noncombatant service or noncombat- requests for discharge based on con- ant duties (1–A–O) (used interchangeably scientious objection. herein). (1) Service in any unit of the Armed Forces which is unarmed at all § 75.2 Applicability and scope. times. The provisions of this part apply to (2) Service in the medical department the military departments and govern of any of the Armed Forces, wherever the personnel of the Army, Navy, Air performed. Force, and Marine Corps and all Re- (3) Any other assignment the pri- serve components thereof. mary function of which does not require the use of arms in combat pro- § 75.3 Definitions. vided that such other assignment is ac- (a) Conscientious objection—General. A ceptable to the individual concerned firm, fixed and sincere objection to and does not require him to bear arms participation in war in any form or the or to be trained in their use. bearing of arms, by reason of religious (4) Service aboard an armed ship or training and belief. aircraft or in a combat zone shall not (1) Class 1–O conscientious objector. A be considered to be combatant duty un- member, who, by reason of conscien- less the individual concerned is person- tious objection, sincerely objects to ally and directly involved in the oper- participation of any kind in war in any ation of weapons. form. (d) Noncombatant training. Any train- (2) Class 1–A–O conscientious objector. ing which is not concerned with the A member who, by reason of conscien- study, use or handling of arms or weap- tious objection, sincerely objects to ons.

306 Office of the Secretary of Defense § 75.5

§ 75.4 Policy. cerity of asserted conscientious objec- (a) Administrative discharge prior to tion beliefs cannot be routinely the completion of an obligated term of ascertained by applying inflexible ob- service is discretionary with the mili- jective standards and measurements on tary service concerned, based on a an ‘‘across-the-board’’ basis. Requests judgment of the facts and cir- for discharge or assignment to non- cumstances in the case. However, inso- combatant training or service based on far as may be consistent with the effec- conscientious objection will, therefore, tiveness and efficiency of the military be handled on an individual basis with services, a request for classification as final determination made at the head- a conscientious objector and relief quarters of the military service con- from or restriction of military duties cerned in accordance with the facts and in consequence thereof will be ap- circumstances in the particular case proved to the extent practicable and and the policy and procedures set forth equitable within the following limita- herein. tions: (1) Except as provided in paragraph § 75.5 Criteria. (a)(2) of this section, no member of the General. The criteria set forth herein Armed Forces who possessed conscien- provide policy and guidance in consid- tious objection beliefs before entering ering applications for separation or for military service is eligible for classi- assignment to noncombatant training fication as a conscientious objector if and service based on conscientious ob- (i) (a) Such beliefs satisfied the rejection. quirements for classification as a con- (a) Consistent with the national pol- scientious objector pursuant to section icy to recognize the claims of bona fide 6(j) of the Universal Military Training conscientious objectors in the military and Service Act, as amended (50 U.S.C. service, an application for classifica- App. 456(j)) and other provisions of law, tion as a conscientious objector may be and (b) he failed to request classifica- approved (subject to the limitations of tion as a conscientious objector by the § 75.4(a)) for any individual: Selective Service System; or (1) Who is conscientiously opposed to (ii) (a) He requested classification as participation in war in any form; a conscientious objector before enter- (2) Whose opposition is founded on re- ing military service, and (b) such religious training and beliefs; and quest was denied on the merits by the (3) Whose position is sincere and Selective Service System, and (c) his deeply held. request for classification as a conscien- (b) War in any form: The clause ‘‘war tious objector is based upon essentially in any form’’ should be interpreted in the same grounds, or supported by es- the following manner: sentially the same evidence, as the re- (1) An individual who desires to quest which was denied by the Selec- choose the war in which he will partici- tive Service System. pate is not a conscientious objector (2) Nothing contained in this part under the law. His objection must be to renders ineligible for classification as a all wars rather than a specific war; conscientious objector a member of the (2) A belief in a theocratic or spir- Armed Forces who possessed conscien- itual war between the powers of good tious objector beliefs before entering and evil does not constitute a willing- military service if (i) such beliefs ness to participate in ‘‘war’’ within the crystalized after receipt of an induc- meaning of this part. tion notice; and (ii) he could not re- (c) Religious training and belief: (1) quest classification as a conscientious In order to find that an applicant’s objector by the Selective Service Sys- moral and ethical beliefs are against tem because of Selective Service Sys- participation in war in any form and tem regulations prohibiting the sub- are held with the strength of tradi- mission of such requests after receipt tional religious convictions, the appli- of induction notice. cant must show that these moral and (b) Because of the personal and sub- ethical convictions, once acquired, jective nature of conscientious objec- have directed his life in the way tradition, the existence, honesty, and sin- tional religious convictions of equal

307 § 75.5 32 CFR Ch. I (7–1–97 Edition) strength, depth and duration have di- (c) Conversely, affiliation with a rected the lives of those whose beliefs church or group which does not teach are clearly found in traditional reli- conscientious objection does not nec- gious convictions. In other words, the essarily rule out adherence to con- belief upon which conscientious objec- scientious objection beliefs in any tion is based must be the primary con- given case. trolling force in the applicant’s life. (d) Where an applicant is or has been (2) A primary factor to be considered a member of a church, religious organi- is the sincerity with which the belief is zation, or religious sect, and where his held. Great care must be exercised in claim of conscientious objection is re- seeking to determine whether asserted lated to such membership, inquiry may beliefs are honestly and genuinely held. properly be made as to the fact of Sincerity is determined by an impar- membership, and the teaching of the tial evaluation of the applicant’s church, religious organization, or reli- thinking and living in its totality, past gious sect, as well as the applicant’s re- and present. Care must be exercised in ligious activity. However, the fact that determining the integrity of belief and the applicant may disagree with, or not the consistency of application. Infor- subscribe to, some of the tenets of his mation presented by the claimant church does not necessarily discredit should be sufficient to convince that his claim. The personal convictions of the claimant’s personal history reveals each individual will be controlling so views and actions strong enough to long as they derive from his moral, demonstrate that expediency or avoid- ethical or religious beliefs. ance of military service is not the basis (e) Moreover, an applicant who is of his claim. otherwise eligible for conscientious ob- (i) Therefore, in evaluating applica- jector status may not be denied that tions the conduct of applicants, in par- status simply because his conscien- ticular their outward manifestation of tious objection influences his views the beliefs asserted, will be carefully concerning the Nation’s domestic or examined and given substantial weight. foreign policies. The task is to decide (ii) Relevant factors that should be whether the beliefs professed are sin- considered in determining an appli- cerely held, and whether they govern cant’s claim of conscientious objection the claimant’s actions in both word include: Training in the home and and deed. church; general demeanor and pattern (d) The burden of establishing a of conduct; participation in religious claim of conscientious objection as a activities; whether ethical or moral ground for separation or assignment to convictions were gained through train- noncombatant training and service is ing, study, contemplation, or other ac- on the applicant. To this end, he must tivity comparable in rigor and dedica- establish by clear and convincing evi- tion to the processes by which tradi- dence: (1) That the nature or basis of tional religious convictions are formu- his claim comes within the definition lated; credibility of the applicant; and of and criteria prescribed herein for credibility of persons supporting the conscientious objection, and (2) that claim. his belief in connection therewith is (iii) Particular care must be exer- honest, sincere and deeply held. The cised not to deny the existence of bona claimant has the burden of determin- fide beliefs simply because those beliefs ing and setting forth the exact nature are incompatible with one’s own. of his request, i.e., whether for separa- (a) Church membership or adherence tion based on conscientious objection to particular theological tenets are not (1–O) or for assignment to noncombat- required to warrant separation or as- ant training and service based on con- signment to noncombatant training scientious objection (1–A–O). and service for conscientious objectors. (e) An applicant claiming 1–O status (b) Mere affiliation with a church or shall not be granted 1–A–O status as a other group which advocates conscien- compromise. tious objection as a tenet of its creed is (f) Persons who were classified 1–A–O not necessarily determinative of an ap- by Selective Service prior to induction plicant’s position or belief. shall upon induction be transferred to

308 Office of the Secretary of Defense § 75.6 a training center, or station, for re- § 75.6 Procedure. cruit training, and shall be subject to (a) A member of the Armed Forces noncombatant service or training. who seeks either separation or assign- They will be required to sign and date ment to noncombatant duties by rea- a statement as set forth in the form in son of conscientious objection will sub- § 75.11. Thereafter, upon completion of mit an application therefor. The appli- recruit training, they shall be assigned cant will indicate whether he is seek- to noncombatant duty. They may be ing a discharge or assignment to non- transferred to the medical corps, or a combatant duties and will include the medical department or unit for further following terms: training, provided they meet the re- (1) The personal information required quirements therefor. Such persons by § 75.9. when assigned to medical units will not (2) Any other items which the appli- be allowed to avoid the important or cant desires to submit in support of his hazardous duties which are part of the case. responsibility of all members of the (b) Prior to processing the applica- medical organization. Any person who tion of the individual, he will be (1) ad- does not meet the requirements for vised of the specific provisions of sec- this training, who fails to complete the tion 3103 of title 38, United States prescribed course of instruction, or Code 1 regarding the possible effects of who otherwise cannot be assigned to discharge as a conscientious objector this duty will be assigned to other who refuses to perform military duty noncombatant duties. or refused to wear the uniform or oth- (g) Commanders at levels directed by erwise to comply with lawful orders of the service headquarters are authorized competent military authority, and (2) to return to an applicant, without ac- required to execute the statement in tion, any second or subsequent applica- § 75.10. tion that is based upon essentially the (c) The applicant shall be personally same grounds, or supported by essen- interviewed by a chaplain who shall tially the same evidence, as a previous submit a written opinion as to the na- application disapproved by the mili- ture and basis of the applicant’s claim, tary service concerned. and as to the applicant’s sincerity and (h) The provisions of this part will depth of conviction. The chaplain’s re- not be used to effect the administrative port shall include the reasons for his separation of individuals who do not conclusions. In addition, the applicant qualify as conscientious objectors, or will be interviewed by a psychiatrist in lieu of administrative separation (or by a medical officer if a psychia- procedures such as those provided for trist is not reasonably available) who unsuitability or unfitness or as other- shall submit a written report of psychiatric evaluation indicating the pres- wise set forth in part 41 of this title. ence or absence of any psychiatric dis- Individuals determined not qualified order which would warrant treatment for conscientious objector status, but or disposition through medical chan- the separation of whom would other- nels, or such character or personality wise appear to be in the best interest of disorder as to warrant recommendation the Armed Forces, should be considered for administrative separation under the provisions of part 41 of this title. 1 38 U.S.C. 3103 provides, in pertinent part, that the discharge of any person on the Under no circumstances will adminis- grounds that he was a conscientious objector trative separation of these individuals who refused to perform military duty or re- be effected pursuant to this part. fused to wear the uniform or otherwise to (i) Nothing in this part prevents the comply with lawful orders of competent administrative elimination, pursuant military authority, shall bar all rights (ex- to law and regulations of the military cept government insurance) of such persons department concerned, of any officer under law administered by the Veterans’ Ad- ministration based upon the period of service whose classification as a 1–A–O con- from which discharged or dismissed. The scientious objector results in sub- only exception is in cases in which it is es- standard performance of duty or other tablished, to the satisfaction of the Adminis- cause for elimination. trator, that the member was insane.

309 § 75.6 32 CFR Ch. I (7–1–97 Edition) for appropriate administrative action. (ii) The hearing will be informal in This opinion and report will become character and will not be governed by part of the case file. If the applicant re- the rules of evidence employed by fuses to participate or is uncooperative courts-martial except that all oral tes- or unresponsive in the course of the timony presented shall be under oath interview, this fact will be included in or affirmation. Any relevant evidence the statement and report filed by the may be received. Statements obtained chaplain and psychiatrist or medical from persons not present at the hear- officer. ing need not be made under oath or af- (d) Commanders at levels directed by firmation. The hearing is not an adver- the Service Headquarters will appoint sary proceeding. an officer in the grade of O–3 or higher (iii) The applicant may submit any to investigate the applicant’s claim. additional evidence that he desires (in- The officer so appointed will not be an cluding sworn or unsworn statements) individual in the chain of command of and present any witnesses in his own the applicant. If the applicant is a behalf, but he shall be responsible for commissioned officer, the investigating securing their attendance. The instal- officer must be senior in both tem- lation or local commander will render porary and permanent grades to the ap- all reasonable assistance in making plicant. available military members of his com- (1) Upon appointment, the investigat- mand requested by the applicant as ing officer will review the applicable witnesses. Further, the applicant will be permitted to question any other wit- service regulations which implement nesses who appear and to examine all this part. During the course of his in- items in the file. vestigation, the investigating officer (iv) A verbatim record of the hearing will obtain all necessary legal advice is not required. If the applicant desires from the local Staff Judge Advocate or such a record and agrees to provide it legal officer. at his own expense, he may do so. If he (2) The investigating officer will con- elects to provide such a record, he shall duct a hearing on the application. The make a copy thereof available to the purpose of the hearing is: To afford the investigating officer, at no expense to applicant an opportunity to present the Government, at the conclusion of evidence he desires in support of his ap- the hearing. In the absence of a ver- plication; to enable the investigating batim record, the investigating officer officer to ascertain and assemble all will summarize the testimony of wit- relevant facts; to create a comprehen- nesses and permit the applicant or his sive record; and to facilitate an in- counsel to examine the summaries and formed recommendation by the inves- note for the record their differences tigating officer and an informed deci- with the investigating officer’s sum- sion on the merits by higher authority. mary. Copies of statements and other In this regard, any failure or refusal of documents received in evidence will be the applicant to submit to questioning made a part of the hearing record. under oath or affirmation before the (3) At the conclusion of the investiga- investigating officer may be considered tion, the investigating officer will pre- by the officer making his recommenda- pare a written report which will con- tion and evaluation of the applicant’s tain the following: claim. If the applicant fails to appear (i) A statement as to whether the ap- at the hearing without good cause, the plicant appeared, whether he was ac- investigating officer may proceed in companied by counsel, and, if so, the his absence and the applicant will be latter’s identity, and whether the na- deemed to have waived his appearance. ture and purpose of the hearing were (i) If the applicant desires, he shall be explained to the applicant and under- entitled to be represented by counsel, stood by him. at his own expense, who shall be per- (ii) Any documents, statements and mitted to be present at the hearings, other material received during the in- assist the applicant in the presentation vestigation. of his case, and examine all items in (iii) Summaries of the testimony of the file. the witnesses presented (or a verbatim

310 Office of the Secretary of Defense § 75.7 record of the testimony if such record official service record of the applicant was made). considered by the headquarters of the (iv) A statement of the investigating military service concerned which is ad- officer’s conclusions as to the underly- verse to the applicant, and which the ing basis of the applicant’s conscien- applicant has not had an opportunity tious objection and the sincerity of the to comment upon or refute, will be applicant’s beliefs, including his rea- made a part of the record and the ap- sons for such conclusions. plicant shall be given an opportunity (v) Subject to § 75.5(e), the investigat- to comment upon or refute the mate- ing officer’s recommendations for dis- rial before a final decision is made. The position of the case, including his rea- reasons for an adverse decision will be sons therefor. The actions rec- made a part of the record and will be ommended will be limited to the fol- provided to the individual. lowing: (g) Processing of applications need (a) Denial of any classification as a not be abated by the unauthorized ab- conscientious objector; or sence of the applicant subsequent to (b) Classification as 1–A–O conscien- the initiation of the application, or by tious objector; or the institution of disciplinary action or (c) Classification as 1–O conscientious administrative separation proceedings objector. against him. However, an applicant (vi) The investigating officer’s re- whose request for classification as a port, along with the individual’s appli- conscientious objector has been ap- cation, all interviews with chaplains or proved will not be discharged until all doctors, evidence received as a result disciplinary action has been resolved. of the investigating officer’s hearing, (h) To the extent practicable under and any other items submitted by the the circumstances, during the period applicant in support of his case will applications are being processed and constitute the record. The investigat- until a decision is made by the head- ing officer’s conclusions and rec- quarters of the service concerned, ommended disposition will be based on every effort will be made to assign ap- the entire record and not merely on the plicants to duties within the command evidence produced at the hearings. A to which they are assigned which will copy of the record will be furnished to conflict as little as possible with their the applicant at the time it is for- asserted beliefs. However, members de- warded to the commander who ap- siring to file application who are on or- pointed the investigating officer, and ders for reassignment may be required the applicant will be informed that he by the military service concerned to has the right to submit a rebuttal to submit applications at their next per- the report within the time prescribed manent duty station. During the period by the military service concerned. applications are being processed, appli- (e) The record of the case will be for- cants will be expected to conform to warded to the headquarters of the offi- the normal requirements of military cer who appointed the investigating of- service and to perform satisfactorily ficer where it shall be reviewed for such duties to which they are assigned. completeness and legal sufficiency. If Applicants may be disciplined for vio- necessary, the case may be returned to lations of the Uniform Code of Military the investigating office for further in- Justice while awaiting action on their vestigation. When the record is com- applications. plete, the authority who appointed the investigating officer shall forward it § 75.7 Action after decision. with his personal recommendation for (a) Applicants requesting discharge disposition, and the reasons therefor, who are determined to be 1–O conscien- through the appropriate chain of com- tious objectors by the headquarters of mand to headquarters of the military the service concerned will be dis- service concerned. charged for the convenience of the Gov- (f) The headquarters of the military ernment with entry in personnel service concerned will make a final de- records and discharge papers that the cision based on the entire record. Any reason for separation is conscientious additional information other than the objection. The type of discharge issued

311 § 75.8 32 CFR Ch. I (7–1–97 Edition) will be governed by the applicant’s gen- less erroneously inducted, or assigned eral military record and the pertinent to combatant training or duty. provisions of part 41 of this title. The Claims based on alleged erroneous de- Director of the Selective Service Sys- terminations made on the merits of the tem will be promptly notified of the case by the Selective Service System discharge of those who have served less are not covered by this section. (See than one hundred and eighty (180) days § 75.4.) in the Armed Forces. Pending separation, the applicant will continue to be (b) Claims covered by paragraph (a) assigned duties providing the minimum of this section will be referred to the practicable conflict with his professed Selective Service System without beliefs and will be expected to conform delay for investigation and ascertain- to the normal requirements of military ment of the facts. Communication will service and to perform satisfactorily be transmitted to the National Head- such duties to which he is assigned. Ap- quarters, Selective Service System, plicants may be disciplined for viola- Washington, DC 20435. tions under the Uniform Code of Mili- (1) If the Selective Service System tary Justice while awaiting discharge. advises that induction was in fact erro- (b) Applicants requesting assignment neous under paragraph (a)(1) or (a)(3) of to noncombatant duties who are deter- this section, the claimant will be sepa- mined to be class 1–A–O conscientious rated or assigned to noncombatant du- objectors by the military department ties depending upon whether he was shall be (1) assigned to noncombatant classified 1–O or 1–A–O. duty as defined in § 75.3, or (2) dis- (2) If the Selective Service System charged from military service or re- advises that there was in fact a denial leased from active duty, at the discre- of a right or a significant procedural tion of the military department. Each error in the evaluation of a claim applicant will be required to execute under paragraph (a)(2) of this section, the statement in § 75.11. the induction will be considered erro- (c) Persons who are assigned to non- neous and the individual discharged. combatant duties, and persons who are (3) If the Selective Service System assigned to normal military duties by advises that any claim under para- reason of disapproval of their applica- graph (a) of this section is unfounded tions, will be expected to conform to or makes a final determination adverse the normal requirements of military to any claim, the claimant will be so service and to perform satisfactorily informed and returned to general duty. such duties to which they are assigned. (c) Pending investigation and resolu- Violations of the Uniform Code of Mili- tion of all claims covered by this sec- tary Justice by these members will be tion, a claimant will be assigned to du- treated as in any other situation. ties which conflict as little as practicable with his asserted beliefs, inso- § 75.8 Claims of erroneous induction. far as is consistent with the effective- (a) This section applies to any indi- ness and efficiency of the military vidual who claims that he is a con- forces. scientious objector and was either erroneously inducted, or erroneously as- § 75.9 Required information to be sup- signed to combatant training or duty, plied by applicants for discharge or for any of the following reasons: noncombatant service. (1) Although determined to be a con- Each person seeking release from ac- scientious objector by a local board or tive service from the Armed Forces, or appellate agency of the Selective Serv- assignment to noncombatant duties, as ice System, his records failed to reflect a conscientious objector, will provide classification as such. the information indicated below as the (2) He was denied a significant proce- minimum required for consideration of dural right in the classification process his request. This in no way bars the by the Selective Service System. military departments from requiring (3) Despite actual classification as a such additional information as they de- conscientious objector properly re- sire. The individual may submit such flected in his records, he was neverthe- other information as desired.

312 Office of the Secretary of Defense § 75.9

(a) General information concerning ap- opment of conscientious objection be- plicant. (1) Full name. liefs. (2) Military serial number; and social (3) An explanation as to when these security account number. beliefs became incompatible with mili- (3) Selective service number. tary service, and why. (4) Service address. (4) An explanation as to the cir- (5) Permanent home address. cumstances, if any, under which the (6) Name and address of each school applicant believes in the use of force, and college attended (after age 16) to- and to what extent, under any foresee- gether with the dates of attendance, able circumstances. and the type of school (public, church, (5) An explanation as to how the ap- military, commercial, etc.). plicant’s daily lifestyle has changed as (7) A chronological list of all occupa- a result of his beliefs and what future tions, positions, jobs, or types of work, actions he plans to continue to support other than as a student in school or his beliefs. college (after age 16) whether for mone- (6) An explanation as to what in ap- tary compensation or not. Include the plicant’s opinion most conspicuously type of work, name of employer, ad- demonstrates the consistency and dress of employer and the from/to date depth of his beliefs which gave rise to for each position or job held. his claim. (8) All former addresses (after age 16) (c) Participation in organizations. (1) and dates of residence at those address- Information as to whether applicant es. has ever been a member of any mili- (9) Parents’ names and addresses. In- tary organization or establishment be- dicate whether they are living or de- fore entering upon his present term of ceased. service. If so, the name and address of (10) The religious denomination or such organization will be given to- sect of both parents. gether with reasons why he became a (11) Was application made to the Se- member. lective Service System (local board) for (2) A statement as to whether appli- classification as a conscientious objec- cant is a member of a religious sect or tor prior to entry into the Armed organization. If so, the statement will Forces? To which local board? What de- show the following: cision was made by the Board, if (i) The name of the sect, and the known? name and location of its governing (12) When the applicant has served body or head, if known. less than one hundred and eighty (180) (ii) When, where, and how the appli- days in the military service, a state- cant became a member of said sect or ment by him as to whether he is will- organization. ing to perform work under the selec- (iii) The name and location of any tive service civilian work program for church, congregation or meeting which conscientious objectors, if discharged the applicant customarily attends, and as a conscientious objector. Also, a the extent of the applicant’s active statement of the applicant as to wheth- participation therein. er he consents to the issuance of an (iv) The name, title, and present ad- order for such work by his local Selec- dress of the pastor or leader of such tive Service Board. church, congregation or meeting. (b) Training and belief. (1) A descrip- (v) A description of the creed or offi- tion of the nature of the belief which cial statements, if any, and if they are requires the applicant to seek separa- known to him, of said religious sect or tion from the military service or as- organization in relation to participa- signment to noncombatant training tion in war. and duty for reasons of conscience. (3) A description of applicant’s rela- (2) An explanation as to how his be- tionships with and activities in all or- liefs changed or developed, to include ganizations with which he is or has an explanation as to what factors (how, been affiliated, other than military, when and from whom or from what political, or labor organizations. source training received and belief ac- (d) References. Any additional infor- quired) caused the change in or devel- mation, such as letters of reference or

313 § 75.10 32 CFR Ch. I (7–1–97 Edition) official statements of organizations to § 76.1 Reissuance and purpose. which the applicant belongs or refers in This part reissues 32 CFR part 76 and his application, that the applicant de- establishes DoD policy for planning sires to be considered by the authority and procedures for executing mobiliza- reviewing his application. The burden tion of the Ready Reserve, in compli- is on the applicant to obtain and for- ance with DoD Master Mobilization ward such information. Plan (MMP), June 26, 1982.

§ 75.10 Statement (counseling concern- § 76.2 Applicability and scope. ing Veterans Administration benefits). This part: I have been advised of the provisions of 38 (a) Applies to the Office of the Sec- U.S.C. 3103 concerning possible nonentitle- retary of Defense (OSD); the Military ment to benefits administered by the Veter- Departments and the Coast Guard (by ans Administration due to discharge from agreement with the Department of the military service as a conscientious objec- Transportation) including the National tor under certain conditions. I understand Guard and Reserve Components; the that a discharge as a conscientious objector, Organization of the Joint Chiefs of who refused to perform military duty or oth- Staff (OJCS); and the Defense Agen- erwise to comply with lawful orders of competent military authority, shall bar all cies. rights, based upon the period of service from (b) Applies to all mobilization of the which discharged, under any laws adminis- Ready Reserve. The Ready Reserve tered by the Veterans Administration except comprises units and individuals liable my legal entitlement (if any) to any war for involuntary order to active duty risks, government (converted) or National under sections 672 and 673. Service Life Insurance. (c) Does not cover the ordering or calling of National Guard units or indi- § 75.11 Statement (counseling concern- viduals to duty while under control of ing designation as conscientious objector). State Governments. (d) Does not cover the involuntary I have been counseled concerning designa- ordering of Coast Guard Reserve units tion as a conscientious objector. Based on or individuals to active duty in re- my religious training and belief, I consider myself to be a conscientious objector within sponse to domestic emergencies while the meaning of the statute and regulations under the Secretary of Transportation. governing conscientious objectors and am conscientiously opposed to participation in § 76.3 Definitions. combatant training and service. I request as- Activation. Order to active duty signment to noncombatant duties for the re- (other than for training) in the Federal mainder of my term of service. I fully under- service. stand that on expiration of my current term of service I am not eligible for voluntary en- Active Guard/Reserve (AGR) Personnel. listment, reenlistment, or active service in National Guard and Reserve members the Armed Forces. on full-time duty for the purpose of organizing, administering, recruiting, in- PART 76—MOBILIZATION OF THE structing, or training the National Guard and Reserve Components and READY RESERVE who are paid from the reserve personnel appropriations of the Military De- Sec. partments. 76.1 Reissuance and purpose. F-hour. The effective time of an an- 76.2 Applicability and scope. nouncement by the Secretary con- 76.3 Definitions. cerned of a decision to mobilize reserve 76.4 Legal authority. units. 76.5 Policy. M-day. The day on which mobiliza- 76.6 Mobilization procedures. 76.7 Responsibilities. tion commences or is due to commence. AUTHORITY: Sec. 280, 70A Stat. 14; 10 U.S.C. Military technicians. Dual status Fed- 280. eral civilian employees of a Military SOURCE: 51 FR 44462, Dec. 10, 1986, unless Department who are assigned to pro- otherwise noted. vide support to the National Guard or

314 Office of the Secretary of Defense § 76.3

Reserve Components and are concur- The Ready Reserve consists of the Se- rently members in the Selected Re- lected Reserve, the Individual Ready serve of the organization they support. Reserve and the Inactive National Mobilization. The process by which Guard. the Armed Forces or part of them are (1) Inactive National Guard (ING). The brought to a state of readiness for war ING consists of personnel of the Army or other national emergency. This in- National Guard Ready Reserve who are cludes activating all or part of the Re- in an inactive status. The term is not serve Components as well as assem- applicable to the Air National Guard. bling and organizing personnel, sup- ING members are attached to National plies, and material. Mobilization of the Guard units, but do not participate in Armed Forces includes but is not lim- training activities. Upon mobilization, ited to the following categories. they would mobilize with their units. (1) Full mobilization. Expansion of the To remain members of the ING, such active Armed Forces resulting from ac- personnel must muster once a year tion by Congress and the President to with the assigned unit. In accordance mobilize all Reserve Component units with 32 CFR part 4, ING personnel are in the existing approved force struc- in reserve training category II. ture, all individual reservists, retired (2) Individual Ready Reserve (IRR). military personnel, and the resources The IRR is a manpower pool prin- needed for their support to meet the re- cipally consisting of individuals who quirements of a war or other national have had training and have previously emergency involving an external served in the active forces or in the Se- threat to the national security. lected Reserve. The IRR consists of ob- (2) Partial mobilization. Expansion of ligors and non-obligors who have ful- the active Armed Forces resulting from filled their military service obligation. action by Congress (up to full mobiliza- IRR members are liable for involuntary tion) or by the President (not more active duty for training and fulfillment than 1,000,000) to mobilize Ready Re- of mobilization requirements in ac- serve Component units, Individual cordance with title 10, U.S. Code, sec- Ready Reservists, and the resources tion 673. In addition, the IRR also in- needed for their support to meet the requirements of a war or other national cludes some personnel who are partici- emergency involving an external pating in officer training programs or threat to the national security. in the Armed Forces Health Scholar- (3) Selective mobilization. Expansion of ship Program. All IRR members are in the active Armed Forces resulting from an active status. In accordance with action by Congress and/or the Presi- part 4 of this title, IRR members in- dent to mobilize Reserve Component clude reserve training categories RE, units, Individual Ready Reservists, and RH, RJ, and RK. the resources needed for their support Selected Reserve. The Selected Reserve to meet the requirements of a domestic consists of those units and individuals emergency that is not the result of an within the Ready Reserve designated enemy attack. by their respective services and ap- (4) Total mobilization. Expansion of proved by the Joint Chiefs of Staff as the active Armed Forces resulting from so essential to initial wartime missions action by Congress and the President that they have priority over all other to organize and/or generate additional reserves. The Selected Reserve consists units or personnel, beyond the existing of subcategories defined as follows: force structure, and the resources need- (1) Individual Mobilization Augmentees ed for their support, to meet the total (IMAs). Individual members of the Se- requirement of a war or other national lected Reserve not assigned to a Re- emergency involving an external serve Component unit. These reservists threat to the national security. are trained and preassigned to an ac- Ready Reserve. Organized in units or tive force organization, Selective Serv- as individuals, members of the Ready ice, or Federal Emergency Manage- Reserve are liable for order to active ment Agency billet that must be filled duty to augment the active forces in on or shortly after mobilization. IMAs time of war or national emergency. participate in training activities on a

315 § 76.4 32 CFR Ch. I (7–1–97 Edition) part-time basis in preparation for mo- three major categories of manpower, bilization. In accordance with 32 CFR training, and equipment. part 4 trained individuals include re- (a) Manpower. Achieving manpower serve training categories TB, TR, and goals for both active and Reserve Com- TW. ponents is essential for an effective (2) Selected Reserve units. Units mobilization process. Personnel short- manned and equipped to serve and/or ages and military skill imbalances af- train as operational or augmentation fect wartime capabilities of the total units. Operational units train and force, not just the DoD Component pos- serve as units. Augmentation units sessing such deficiencies. DoD man- train as a unit but lose their unit iden- power policy is as follows: tity when mobilized, being subsumed (1) Achieve and maintain a into an active unit or activity. Se- pretrained manpower pool adequate to lected Reserve units include trained staff all shortfalls in active and Re- unit members who participate in unit serve Component units to wartime lev- training activities, and Full-Time Sup- els of programmed manning within the port (FTS) personnel in the Active time specified in mobilization and de- Guard/Reserve and Military Techni- ployment plans. cians. In accordance with 32 CFR part (2) Have members of the Individual 4 members of Selected Reserve units Ready Reserve (IRR) affiliated or pre- include reserve training categories SA, assigned with units of the active or re- SG, SH, and ST. serve forces, when practicable, insofar (3) Training pipeline. Selected Reserve as it would enhance refresher training, personnel who have not yet completed rapid deployment, and effective utiliza- initial active duty training or are tion in a war or national emergency. awaiting initial active duty training. (3) Achieve an annual aggregate oper- In accordance with 32 CFR part 4 those in the training pipeline include reserve ating strength population in the Re- training categories UF, UP, UQ, and serve Components that possesses skill, UX. grade, and experience qualifications represented in the programmed man- § 76.4 Legal authority. ning requirements. (4) Program resources for maximizing Title 10 U.S. Code 672 and 673 provide the effectiveness and for improving the authority for mobilization of the management of the pretrained man- Ready Reserve. Specific authorities are power pool, including the IRR and the vested in the President, Congress, the Inactive National Guard (ING). Secretary of Defense, the Secretary of Transportation, and the Secretaries of (b) Training. Effective utilization of the Military Departments. Appropriate the total force requires the rapid as- authority must be obtained from the similation of Reserve Component units President, Congress, or Secretary con- and individuals into active service in a cerned before mobilization actions may mobilization. This may be accom- be started. plished only if requisite training has occurred before the event. DoD policy § 76.5 Policy. is as follows: DoD policy directs an increasing reli- (1) Ensure that early deploying Re- ance on the Ready Reserve to meet serve Component units are trained wartime requirements. In certain con- fully in their wartime taskings and are tingencies, plans call for the deploy- capable of attaining requisite readiness ment of some Selected Reserve units status before the deployment time and individuals before active units. The specified by contingency plans. Selected Reserve, as a subset of the (2) Ensure that Reserve Component Ready Reserve, shall receive priority in individuals and units are trained ap- manning, training, and equipment pro- propriately for augmenting active grams when Selected Reserve units and forces on mobilization. individuals deploy before active units. (3) Determine IRR skill proficiency DoD policy for mobilization of the degradation and conduct skill refresher Ready Reserve is organized under the training.

316 Office of the Secretary of Defense § 76.6

(4) Ensure that Ready Reserve train- (1) Provide for fully developed plans ing and evaluating procedures are con- of Ready Reserve mobilization includ- sistent with standards established for ing each reserve category in the Ready the active force. Reserve; i.e., Selected Reserve, IRR, (5) Ensure that training cadres are and ING. equipped and prepared for mobilization (2) Enhance the readiness of Ready training base programs supporting the Reserve units and individuals so they total force after M-Day. may respond rapidly and effectively. (c) Equipment. Equipment compatibil- (3) Encompass all actions necessary ity among total force components is a for warning, alerting, and mobilizing battlefield imperative. Active and Re- Ready Reserve units and individuals serve Component units deploying at and for bringing them rapidly to full the same time shall have equal claim combat capability. on equipment inventories; i.e., the first (4) Specify authorizations, respon- units scheduled to become operational sibilities, and coordination of decisions in theater shall be equipped first re- required for alerting, mobilizing, de- gardless whether active or Reserve ploying, and employing Ready Reserve Component. Equipment policy applies units and individuals. equally to tools, technical documenta- (5) Provide sufficient flexibility in tion, spares and repair parts, and all the mobilization decision and execu- items of supply that are prescribed for tion process for accommodating rapid unit issue. DoD policy is to ensure the changes. following: (6) Include appropriate provisions for (1) Procuring and distributing new using National Guard and Ready Re- and/or combat serviceable equipment is serve members on a voluntary basis consistent with DoD policy guidance in during the early stages of increasing DoD Directive 1225.6.1 tensions. (2) Equipment interoperability (7) Include appropriate provisions to among reserve and active units serving facilitate employing mobilized Na- together on the battlefield when inter- tional Guard and other Reserve Compo- operability of the respective equipment nent force in support of civil protection is essential for effective military oper- where authorized by Federal Statute ations. and directed by the National Command (3) Equipment on hand is adequate Authority. for enabling reserve units to conduct (b) Screening. 32 CFR part 44 provides effective training before mobilization. guidance on screening members of the (4) Plans are developed to redistrib- Ready Reserve. The screening system ute those assets left in the Continental is a continuous peacetime process and United States (CONUS) by units de- the primary means for ensuring that ploying to prepositioned stocks on mo- reserve members receive fair treatment bilization, to procure and distribute and are evaluated on their mobilization sufficient assets for not-fully-equipped responsibilities. The screening process units before the deployment time spec- shall be used to identify members not ified in contingency plans. meeting mobilization requirements and to eliminate them from the Ready Re- § 76.6 Mobilization procedures. serve before mobilization. On mobiliza- (a) Planning. Use of the Ready Re- tion, all members remaining in the serve must consider the entire crisis Ready Reserve shall be considered im- spectrum. Plans for mobilizing the mediately available for active duty Ready Reserve must be flexible, con- service. sistent, responsive, and sufficiently (c) Alert notification. An official ac- comprehensive for meeting all contin- tion informing commands, staffs, mem- gencies and employment options. Mobi- bers of Selected Reserve units, and in- lization plans and procedures must: dividual reservists that mobilization is imminent or seems imminent. Each 1 Copies may be obtained, if needed, from Military Service shall publish proce- the U.S. Naval Publications and Forms Cen- dures for alerting any or all of its ter, Attn: Code 301, 5801 Tabor Avenue, Phila- Ready Reserve and for systematically delphia, PA 19120. executing the mobilization order.

317 § 76.6 32 CFR Ch. I (7–1–97 Edition)

Based on a decision by the President Ready Reserve shall be exempt from and/or the Congress, the Secretary of mobilization. Military Services shall Defense shall direct the Military De- develop specific procedures to deal partments to mobilize all or any speci- with members having difficulty in mo- fied number of reservists (F-Hour) and bilizing. Those persons having dif- shall determine the day that mobiliza- ficulty in executing mobilization or- tion is to begin (M-Day). The Secretary ders due to unusual circumstances of Transportation shall perform this shall be guided by the following: function for the Coast Guard when the (1) Deferments. Members physically Coast Guard is not operating as a Serv- unable to report for active duty or who ice in the Navy. cannot qualify for active duty service (d) Ordering. An official notification because of temporary health disorders directing members of a Reserve Compo- may be granted a deferment. This cat- nent to report for active duty is a legal egory includes Ready Reserve members order whether written or oral. Each who are hospitalized, unqualified tem- Military Service shall establish proce- porarily for active duty for medical dures for notifying Ready Reserve reasons, or incarcerated temporarily. members by the simplest and fastest When a deferment is granted, it shall means consistent with military and se- contain written authorization and curity requirements. When ordered, a shall specify a reporting date. Members member shall report for active duty at authorized a deferment shall remain the location and time specified in the obligated to enter active duty while notification order. Under title 10, U.S. the mobilization order remains in ef- Code, section 892, persons lawfully no- fect. Deferments shall not be author- tified of the requirement to report for ized for civilian employment, civilian active duty are subject to military ju- occupation, or for exempting members risdiction from the date and time they from active duty. No categories or are required to report. groups shall be granted an automatic (e) Reporting. When mobilization is deferment except non-prior Service ordered, all members of the Ready Re- members with a reporting date for ini- serve shall report to their respective tial active duty. units or initial reporting assignment (2) Emergency leave. Members with unless it is physically impossible. temporary personal emergencies such Members shall be available to report as death of a family member may be for active duty in the times specified granted a short period of emergency below, unless a different reporting time leave, but only after physically report- is specified by the Military Service ing for active duty and receiving prop- concerned. Military Services shall de- er authorization. velop policy and procedures to deal (3) Separation. Continuous screening with members who fail to report or fail in peacetime ensures the transfer or to contact their units within specified discharge of Ready Reserve members reporting times. who may not mobilize. On mobilization (1) Selected Reserve. Report within 24 all members shall report for active hours of notification. duty as ordered. Once on active duty, a (2) Individual Ready Reserve/Inactive member with an unexpected hardship National Guard. Report within 5 to 15 may request release, separation, or dis- days of notification as determined by charge. Services shall evaluate each re- the different Military Service proce- quest utilizing the policies established dures. for evaluating active duty members. (f) Execution of Orders. All Ready Re- (g) Integrity of units. Title 10, U.S. serve members shall be prepared to Code, section 672(c) provides that,‘‘so execute mobilization orders when or- far as practicable, during any expan- dered to active duty. To ensure report- sion of the active Armed Forces that ing times are met, members shall ar- requires that units and members of the range in advance the handling of fam- Reserve Components be ordered to ac- ily, personal, business and other re- tive duty (other than for training), sponsibilities. While circumstances members of units organized and trained may hinder an individual from report- to serve as units, who are ordered to ing as directed, no member of the that duty without their consent, shall

318 Office of the Secretary of Defense § 76.7 be so ordered with their units.’’ Mem- (d) The Assistant Secretary of Defense bers of those units may be reassigned (Health Affairs) (ASD(HA)) shall provide after being ordered to active duty policy, programs, and guidance for the (other than for training) to meet re- management and mobilization of requirements of the Military Service serve health personnel and medical as- concerned. sets, in coordination with ASD(RA). (h) Extension of service. (1) Title 10 (e) The Assistant Secretary of Defense U.S. Code sections 511(a) and 511(c) pro- (Acquisition and Logistics) (ASD(A&L)) vide for extending the terms of reserve shall provide policy, programs, and enlistments or the terms of service in guidance for the management of Re- Reserve Components in time of war or serve Component logistical resources, national emergency declared by Con- installations, and associated functions, gress for a maximum of 6 months after in accordance with DoD Directive the end of the war or emergency unless 5128.1.1 terminated sooner by the Secretary (f) The Assistant Secretary of Defense concerned. (Public Affairs) (ASD(PA)) shall ensure a (2) Section 671a of title 10 U.S. Code free flow of news and information to provides that the period of active serv- the media, other appropriate forums, ice of a Service member is extended for and the American people, limited only the duration of any war in which the by U.S. security constraints and statu- United States is engaged and for 6 tory mandates. months thereafter. (g) The Assistant Secretary of Defense (3) Section 671b of title 10 U.S. Code (Legislative Affairs) (ASD(LA)) shall pro- allows the President to authorize the vide specific information on mobiliza- Secretary of Defense to extend maxi- tion activities to the jurisdictional mally for 6 months the enlistments, ap- Congressional Committee members and pointments, and periods of active duty, staff. periods of active duty for training, pe- (h) The Joint Chiefs of Staff shall: riods of obligated service or other Mili- (1) Ensure that the Joint Deployment tary Service when Congress is not is Agency (JDA), Military Transportation session, with a provision for Congres- Management Command, and other sional review when reconvening. Agencies responsible for ensuring that (4) Section 673c of title 10 U.S. Code logistics, transportation, and other re- empowers the President to suspend any quirements for Ready Reserve mobili- law on promoting, retiring, or separat- zation may be met promptly. ing any member of the Armed Force, (2) Ensure that JCS-sponsored mobi- whom the President finds to be essen- lization exercises include realistic sce- tial to U.S. security. narios that facilitate Military Service testing and assessing of management § 76.7 Responsibilities. and mobilization of the Ready Reserve. (a) The Under Secretary of Defense (i) The Secretaries of Military Depart- (Policy) (USD(P)) shall provide overall ments shall: mobilization policy and planning guid- (1) Prepare mobilization plans in ac- ance for DoD programs with other DoD cordance with this part and with sup- Directives. plementary guidance issued by OJCS. (b) The Assistant Secretary of Defense (2) Ensure that mobilization plans (Reserve Affairs) (ASD(RA)) shall pro- and procedures provide for all exigen- vide policy, programs, and guidance for cies so that Ready Reserve units and the management and mobilization of members execute their responsibilities the Ready Reserve, in accordance with effectively and the active DoD Compo- 32 CFR part 379. nents support and effectively assimi- (c) The Assistant Secretary of Defense late mobilized reserve units and indi- (Force Management and Personnel viduals. (ASD(FM&P)) shall provide policy and (3) Conduct comprehensive assess- planning guidance for military and ci- ments for ensuring that a balanced ca- vilian defense manpower, in accordance pability exists to mobilize reserve with the DoD Master Mobilization Plan. 1 See 376.5(c)(1).

319 § 77.1 32 CFR Ch. I (7–1–97 Edition) forces. The following areas should be in tion 561 by establishing policy, assign- this assessment: ing responsibilities, and prescribing (i) Intra-CONUS transportation re- procedures to: quirements. (a) Encourage and assist separating (ii) Training base equipment, man- Service members, Service members re- power, and facilities requirements. tiring with 20 or more years of service, (iii) Units training, equipping, and DoD civilian personnel leaving the manning requirements. Government, and spouses to enter pub- (iv) Deficiencies in any of these areas lic and community service employ- should be identified and both short ment. term and long term solutions devel- (b) Encourage and assist Service oped. members requesting retirement with (4) Conduct periodic mobilization and fewer than 20 years of service to reg- readiness tests of Selected Reserve ister for public and community service units. employment. (5) Order IRR members to active duty at least 1 day each year for annual § 77.2 Applicability and scope. screening. This part applies to: (6) Order IRR members to active (a) The Office of the Secretary of De- duty, as necessary, for refresher skill fense, the Military Departments, the proficiency training. Chairman of the Joint Chiefs of Staff, (j) The Commandant of the Coast the Unified Combatant Commands, and Guard, with respect to the Coast Guard the Defense Agencies (hereafter re- when it is not operating as a Service in ferred to collectively as ‘‘the DoD the Navy, shall fulfill the same respon- Components’’). The term ‘‘Military sibilities with which the Secretaries of Services,’’ as used herein, refers to the the Military Departments are charged Army, the Navy, the Air Force, and the in this part, but within the policy and Marine Corps. fiscal parameters also established by (b) All active duty Service members the Secretary of Transportation. and former members under Pub. L. 102– 484, Section 4462 and Pub. L. 103–160, PART 77—PROGRAM TO ENCOUR- Section 561, and DoD civilian personnel AGE PUBLIC AND COMMUNITY leaving the Government, and their SERVICE spouses. § 77.3 Definitions. Sec. 77.1 Purpose. (a) Community service employment. 77.2 Applicability and scope. Work in nonprofit organizations that 77.3 Definitions. provide or coordinate services listed in 77.4 Policy. paragraphs (d) (1) through (12) of this 77.5 Responsibilities. 77.6 Procedures. section. ‘‘Nonprofit’’ is defined as having been recognized by the Internal APPENDIX A TO PART 77—DD FORM 2580, OP- Revenue Service as having a tax-ex- ERATION TRANSITION DEPARTMENT OF DE- empt status under 26 U.S.C. 501 (c)(3) or FENSE OUTPLACEMENT AND REFERRAL (c)(4). These organizations shall not be SYSTEM/PUBLIC AND COMMUNITY SERVICE INDIVIDUAL APPLICATION administered by businesses organized APPENDIX B TO PART 77—DD FORM 2581, OP- for profit, labor unions, partisan politi- ERATION TRANSITION EMPLOYER REG- cal organizations, or organizations en- ISTRATION gaged in religious activities, unless APPENDIX C TO PART 77—DD FORM 2581–1, such activities are unrelated to reli- PUBLIC AND COMMUNITY SERVICE ORGANI- gious instructions, worship services, or ZATION VALIDATION any form of proselytization. AUTHORITY: 10 U.S.C. 1143 (c). (b) Creditable early retirement public or SOURCE: 59 FR 40809, Aug. 10, 1994, unless community service employment for service otherwise noted. members. Employment in a DoD-registered public and community service § 77.1 Purpose. organization that provides the services This part implements Pub. L. 102–484, listed in paragraphs (d) (1) through (12) Section 4462 and Pub. L. 103–160, Sec- of this section, or that coordinates the

320 Office of the Secretary of Defense § 77.5 provision of the services listed in para- civilian personnel offices, unit transi- graphs (d) (1) through (12) of this section counselors, and as command cation. Federal employment shall count reer counselors. toward recomputed military retirement pay and Survivor Benefit Plan § 77.4 Policy. base amount for early retirees: how- It is DoD policy that: ever, working in a DoD-registered Fed- (a) All separating Service members eral public service organization may and former members shall be encour- trigger the dual-compensation restric- aged to enter public or community tions of 5 U.S.C. 5532. Employment service employment. must have occurred between that date (b) Service members determined to of early retirement and the date in be eligible by the Secretary of their which the Service member would have Military Department for, and who do attained 20 years of credible service for request retirement with fewer than 20 computing retired pay, or he or she years of service, are required by Pub. must have retired on or after October L. 102–484, Section 4403 to register for 23, 1992 and before October 1, 1999. public and community service employ- (c) Early retirement. Retirement from ment. active duty with at least 15 but fewer (1) This registration normally shall than 20 years of service, as provided by take place not earlier than 90 days be- Pub. L. 102–484, Section 4403. fore retirement or terminal/transition (d) Public and community service orga- leave. nization. Government or private organi- (2) In order to have their military re- zations that provide or coordinate the tired pay and Survivor Benefit Plan provision of the following services. base amount (if applicable) recomputed (1) Elementary, secondary, or post in accordance with DoD Instruction secondary school teaching or adminis- 1340.191 early retirees must be em- tration. ployed with a DoD-registered public or (2) Support of teachers or school ad- community service organization that ministrators. provides the services listed in sections (3) Law enforcement. 77.3(d)(1) through (d)(12), or that co- (4) Public health care. ordinates the provision of services list- (5) Social services. ed in section 77.3(d)(1) through (d)(12). (6) Public safety. (c) DoD civilian personnel leaving (7) Emergency relief. the Government, their spouses, and (8) Public housing. spouses of Service members who are (9) Conservation. seeking employment shall be encour- (10) Environment. aged to register for public and commu- (11) Job training. nity service employment. (12) Other public and community service not listed previously, but con- § 77.5 Responsibilities. sistent with or related to services described in paragraphs(d)(1) through (11) (a) The Under Secretary of Defense of this section. for Personnel and Readiness shall: (e) Public service employment. Work in (1) Monitor compliance with this a Federal, state or local government rule. organization which provides or coordi- (2) Establish policy and provide guid- nates services listed in paragraphs ance related to public and community (d)(1) through (12) of this section. service employment. (f) Separation. Normal separation (3) Provide program information to from activity duty or civil service, the public on the Department of De- military retirement with 20 or more fense’s public and community service year’s service, release from active mili- employment program. tary service, and reduction in force. (4) Ensure that the Director, Defense (g) Transition assistance program coun- Manpower Data Center (DMDC): selor. A person charged with the responsibility of conducting transition 1 Copies may be obtained, at cost, from the programs. Examples include personnel National Technical Information Service, 5285 assigned to family centers, military or Port Royal Road, Springfield, VA 22161.

321 § 77.6 32 CFR Ch. I (7–1–97 Edition)

(i) Maintains the Public and Commu- Service members who are requesting nity Service Organizational Registry. early retirement are advised that: (ii) Maintains the Public and Com- (1) Registering for PACS employment munity Service Personnel Registry. is a requirement for consummation of (5) Decide the status of requests for their early retirement under Pub. L. reconsideration from employers resub- 102–484, Section 4403 or Pub. L. 103–160, mitting their request to be included on Section 561. the Public and Community Service Or- (2) Early retirees must provide a copy ganizational Registry, but whose first of their confirmation DORS mini-re- request was disapproved. sume to their servicing military per- (b) The Secretaries of the Military sonnel office for filing in their Service Departments shall: record before their final retirement (1) Ensure compliance with this rule. processing. (2) Encourage public and community (3) Subsequent PACS employment is service employment for separating encouraged but not required. Service members, their spouses, DoD (4) Working in a DoD-approved Fed- civilian personnel leaving the Govern- eral public service organization may ment, and their spouses. subject him or her to dual compensa- (3) Coordinate with the Under Sec- tion restrictions of 5 U.S.C. 5532. retary of Defense for Personnel and (5) DoD-approved PACS employment Readiness before promulgating public qualifies the Service member who is re- and community service employment tired under Pub. L. 102–484, Section 4403 policies and regulations. or Pub. L. 103–160, Section 561 for increased retired pay effective on the § 77.6 Procedures. first day of the first month beginning (a) Military personnel offices shall after the date on which the member or advise Service members desiring to former member attains 62 years of age. apply for early retirement that they The former Service member must have shall register, normally, within 90 days worked in DoD-approved PACS employ- of their retirement date, for public and ment between the date of early retire- community service (PACS) employment and the date in which he or she ment, and refer them to a Transition would have attained 20 years of cred- Assistance Program Counselor for reg- itable service for computing retired istration. pay, and have retired on or after Octo- (b) Personnel offices shall advise sep- ber 23, 1992 and before October 1, 1999. arating Service members, DoD civilian (6) It is the early retiree’s respon- personnel leaving the Government, and sibility to ensure that the DMDC is ad- their spouses to contact a Transition vised when the early retiree’s PACS Assistance Program Counselor about employment starts, and of any subse- PACS employment and registration. quent changes. (c) Transition Assistance Program (d) Military personnel offices shall Counselors shall counsel separating ensure a copy of the confirmation Service members (during preseparation DORS mini-resume is filed in the per- counseling established by DoD Instruc- manent document section of the Serv- tion 1332.36 2), DoD civilian personnel ice record of Service members who re- leaving the Government, and their tire early. spouses on PACS employment. Coun- (e) DMDC shall maintain the PACS selors shall update into the Defense Personnel Registry, which includes in- Outplacement Referral System (DORS) formation on the particular job skills, database Service members requesting qualifications, and experience of reg- early retirement and other DoD per- istered personnel. sonnel or spouses who request registra- (f) DMDC shall maintain the PACS tion. Transition Assistance Program Organizational Registry, which in- Counselors shall use DD Form 2580 (Ap- cludes information regarding each or- pendix A to this part) to register per- ganization, including its location, size, sonnel for PACS employment. In addi- types of public or community service tion, Counselors shall ensure that positions in the organization, points of contact, procedures for applying for 2 See footnote 1 to section 77.4(b)(2). such positions, and a description of

322 Office of the Secretary of Defense Pt. 77, App. A each position that is likely to be avail- and Services Directorate, Office of the able. Assistant Secretary of Defense for Per- (g) PACS Organizations shall use DD sonnel and Readiness. The Transition Form 2581 (Appendix B to this part) Support and Services Directorate may and DD Form 2581–1 (Appendix C to this consult individually on an ad hoc basis part) to request registration on the with appropriate agencies to determine PACS Organizational Registry. In- whether or not the organization meets structions on how to complete the the validation criteria. For organiza- forms and where to send them are on tions which are denied approval as a the forms. creditable early retirement organiza- (h) DMDC shall register those organi- tion and which request reconsider- zations meeting the definition of a PACS organization and include them ation, the Transition Support and on the PACS Organizational Registry. Services Directorate will forward that For organizations that do not appear request to the next higher level for a to meet the criteria, DMDC shall refer final determination. DMDC shall ad- the request to the Transition Support vise organizations of their status.

323 Pt. 77, App. A 32 CFR Ch. I (7–1–97 Edition)

APPENDIX A TO PART 77–DD FORM 2580, OPERATION TRANSITION DEPARTMENT OF DEFENSE

OUTPLACEMENT AND REFERRAL SYSTEM/PUBLIC AND COMMUNITY SERVICE INDIVIDUAL APPLICATION

324 Office of the Secretary of Defense Pt. 77, App. A

325 Pt. 77, App. A 32 CFR Ch. I (7–1–97 Edition)

326 Office of the Secretary of Defense Pt. 77, App. A

APPENDIX B TO PART 77–DD FORM 2581, OPERATION TRANSITION EMPLOYER REGISTRATION

327 Pt. 77, App. C 32 CFR Ch. I (7–1–97 Edition)

328 Office of the Secretary of Defense Pt. 77, App. C

APPENDIX C TO PART 77–DD FORM 2581–1, PUBLIC AND COMMUNITY SERVICE ORGANIZATION VALIDATION

329 Pt. 77, App. C 32 CFR Ch. I (7–1–97 Edition)

78.3 Definitions. 78.4 Policy. PART 78—VOLUNTARY STATE TAX 78.5 Procedures. 78.6 Responsibilities. WITHHOLDING FROM RETIRED PAY 78.7 Standard agreement.

Sec. AUTHORITY: 10 U.S.C. 1045. 78.1 Purpose. SOURCE: 50 FR 47220, Nov. 15, 1985, unless 78.2 Applicability and scope. otherwise noted.

330 Office of the Secretary of Defense § 78.5

§ 78.1 Purpose. (d) State. Any State, the District of Under 10 U.S.C. 1045, this part pro- Columbia, the Commonwealth of Puer- vides implementing guidance for vol- to Rico, and any territory or possession untary State tax withholding from the of the United States. retired pay of uniformed Service members. § 78.4 Policy. (a) It is the policy of the Uniformed § 78.2 Applicability and scope. Services to accept written requests (a) This part applies to the Office of from members for voluntary income the Secretary of Defense, the Military tax withholding from retired pay when Departments, the Coast Guard (under the Department of Defense has an agreement with the Department of agreement for such withholding with Transportation), the Public Health the State named in the request. Service (PHS) (under agreement with (b) The Department of Defense shall the Department of Health and Human enter into an agreement for the vol- Services and the National Oceanic and untary withholding of State income Atmospheric Administration (NOAA) taxes from retired pay with any State (under agreement with the Department within 120 days of a request for agree- of Commerce). The term ‘‘Uniformed ment from the proper State official. Services,’’ as used herein, refers to the The agreement shall provide that the Army, Navy, Air Force, Marine Corps, Uniformed Services shall withhold Coast Guard, commissioned corps of the PHS, and the Commissioned corps State income tax from the monthly re- of the NOAA. tired pay of any member who volun- (b) It covers members retired from tarily requests such withholding in the regular and reserve components of writing. the Uniformed Services who are receiving retired pay. § 78.5 Procedures. (a) The amounts withheld during any § 78.3 Definitions. calendar quarter shall be retained by (a) Income tax. Any form of tax under the Uniformed Service and disbursed to a State statute where the collection of the States during the month following that tax either imposes on employers that calendar quarter. Payment proce- generally the duty of withholding sums dures shall conform, to the extent from the compensation of employees practicable, to the usual fiscal prac- and making returns of such sums to tices of the Uniformed Services. the State, or grants employers gen- (b) A member may request that the erally the authority to withhold sums State designated for withholding be from the compensation of employees if changed and that the subsequent any employee voluntarily elects to withholdings be remitted as amended. have such sum withheld. And, the duty A member may revoke his or her re- to withhold generally is imposed, or quest for withholding at any time. Any the authority to withhold generally is request for a change in the State des- granted, with respect to the compensa- ignated or any revocation is effective tion of employees who are residents of on the first day of the month after the such State. (b) Member. A person originally ap- month in which the request or revoca- pointed or enlisted in, or conscripted tion is processed by the Uniformed into, a Uniformed Service who has re- Service concerned, but in no event tired from the regular or reserve com- later than on the first day of the sec- ponent of the Uniformed Service con- ond month beginning after the day on cerned. which the request or revocation is re- (c) Retired pay. Pay and benefits received by the Uniformed Service con- ceived by a member based on condi- cerned. tions of the retirement law, pay grade, (c) A member may have in effect at years of service, date of retirement, any time only one request for with- transfer to the Fleet Reserve or Fleet holding under this part. A member may Marine Corps Reserve, or disability. It not have more than two such requests also is known as retainer pay. in effect during any one calendar year.

331 § 78.5 32 CFR Ch. I (7–1–97 Edition)

(d) The agreements with States may (6) PHS—U.S. Public Health Service, Com- not impose more burdensome require- pensation Branch, 5600 Fisher Lane, Room 4– ments on the United States than on 50, Rockville, MD 20857, (800) 638–8744 (except employers generally or subject the AK & MD), (301) 443–6132 (AK & MD). United States, or any member, to a (7) NOAA—Commanding Officer, Navy Fi- penalty or liability because of such nance Center (Code 301), Anthony J. agreements. Celebrezze Federal Building, Cleveland, OH 44199, (800) 321–1080. (e) The Uniformed Services shall perform the services under this part with- (h) If a member’s retired pay is not out accepting payment from States for sufficient to satisfy a member’s request such services. for a voluntary State tax, then the (f) The Uniformed Services may withholding will cease. A member may honor a retiree’s request for refund initiate a new request when such mem- until a payment has been made to the ber’s retired pay is restored in an State. After that, the retiree may seek amount sufficient to satisfy the with- a refund of any State tax overpayment holding request. by filing the appropriate State tax (i) A State requesting an agreement form with the State that received the for the voluntary withholding of State voluntary withholding payments. The tax from the retired pay of members of Uniformed Services may honor a retir- the Uniformed Services shall indicate, ee’s request for refund until a payment in writing, its agreement to be bound has been made to the State. State re- by the provisions of this part. If the funds will be in accordance with State income tax policy and procedures. State proposes an agreement that var- (g) A member may request voluntary ies from the Standard Agreement, the tax withholding by writing the retired State shall indicate which provisions of pay office of his or her Uniformed Serv- the Standard Agreement are not ac- ice. The request shall include: The ceptable and propose substitute provi- member’s full name, social security sions. The letter shall be addressed to number, the fixed amount to be with- the Assistant Secretary of Defense held monthly from retired pay, the (Comptroller), the Pentagon, Washing- State designated to receive the with- ton, DC 20301. To be effective, the let- holding, and the member’s current resi- ter must be signed by a State official dence address. The request shall be authorized to bind the State under an signed by the member, or in the case of agreement for tax withholding. Copies incompetence, his or her guardian or of applicable State laws that authorize trustee. The amount of the request for employers to withhold State income State tax withholding must be an even tax and authorize the official to bind dollar amount, not less than $10 or less the State under an agreement for tax than the State’s minimum withholding withholding shall be enclosed with the amount, if higher. The Uniformed Serv- letter. The letter also shall indicate ices’ retired pay office addresses are the title and address of the official given as follows: whom the Uniformed Services may (1) Army—Commanding Officer, Army Fi- contact to obtain information nec- nance and Accounting Center (Dept. 90), In- essary for implementing withholding. dianapolis, IN 46249, (800) 428–2290. (j) Within 120 days of the receipt of a (2) Navy—Commanding Officer, Navy Fi- letter from a State, the Assistant Sec- nance Center (Code 301), Anthony J. Celebrezze Federal Building, Cleveland, OH retary of Defense (Comptroller), or des- 44199, (800) 321–1080. ignee, will notify the State, in writing, (3) Air Force—Commander, Air Force Ac- that DoD has either entered into the counting and Finance Center, Attn: RP, Den- Standard Agreement or that an agree- ver, CO 80279, (800) 525–0104. ment cannot be entered into with the (4) Marine Corps—Commanding Officer State and the reasons for that deter- (CPR), Marine Corps Finance Center, Kansas City, MO 64197, (816) 926–7130. mination. (5) Coast Guard—Commanding Officer (Re- [50 FR 47220, Nov. 15, 1985, as amended at 50 tired), U.S. Coast Guard Pay and Personnel FR 49930, Dec. 6, 1985] Center, 444 S.E. Quincy Street, Topeka, KS 66683, (913) 295–2657.

332 Office of the Secretary of Defense § 79.1

§ 78.6 Responsibilities. B. In addition to the provisions of Article III, the agreement may be terminated by a (a) The Assistant Secretary of De- party to the Standard Agreement by provid- fense (Comptroller) shall provide guid- ing the other party with written notice to ance, monitor compliance with this that effect at least 90 days before the pro- part, and have the authority to change posed termination. or modify the procedures set forth. C. Nothing in this agreement shall be (b) The Secretaries of the Military deemed to: Departments and Heads of the other 1. Require the collection of delinquent tax Uniformed Services shall comply with liabilities of retired members of the Uni- this part. formed Services; 2. Consent to the application of any provi- § 78.7 Standard agreement. sion of State law that has the effect of imposing more burdensome requirements upon Standard Agreement For Voluntary the United States than the State imposes on State Tax Withholding From The Re- other employers, or subjecting the United tired Pay Of Uniformed Service Mem- States or any member to any penalty or li- bers ability; 3. Consent to procedures for withholding, Article I—Purpose filing of returns, and payment of the with- This agreement, hereafter referred to as held taxes to States that do not conform to the ‘‘Standard Agreement,’’ establishes ad- the usual fiscal practices of the Uniformed ministrative procedures and assigns respon- Services; sibilities for voluntary State tax withhold- 4. Allow the Uniformed Services to accept ing from the retired pay of Uniformed Serv- payment from a State for any services per- ice members consistent with section 654 of formed with regard to State income tax the Department of Defense Authorization withholding from the retired pay of Uni- Act for Fiscal Year 1985 (Pub. L. 98–525), formed Service members. codified as 10 U.S.C. 1045. Article II—Parties PART 79—CONTRIBUTIONS TO The parties to this agreement are the De- STATE RETIREMENT PROGRAMS partment of Defense on behalf of the Uni- FOR NATIONAL GUARD TECHNI- formed Services and the State that has entered into this agreement pursuant to 10 CIANS U.S.C. 1045. Sec. Article III—Procedures 79.1 Reissuance and purpose. The parties to the Standard Agreement are 79.2 Applicability and scope. bound by the provisions in title 32, Code of 79.3 Definitions. Federal Regulations, part 78. The Secretary 79.4 Policy. of Defense may amend, modify, supplement, 79.5 Procedures. or change the procedures for voluntary State 79.6 Responsibilities. tax withholding from retired pay of Uni- 79.7 Standards for contribution agreements formed Service members after giving notice with State retirement programs for Na- in the FEDERAL REGISTER. In the event of tional Guard technicians. any such changes, the State will be given 45 days to terminate this agreement. AUTHORITY: E.O. 10996, 5 U.S.C. 5518, 8331– 8348, and 32 U.S.C. 709. Article IV—Reporting SOURCE: 47 FR 34982, Aug. 12, 1982, unless Copies of Internal Revenue Service Form otherwise noted. W–2P, ‘‘Statement for Recipients of Annu- ities, Pensions, Retired Pay or IRA Pay- ments,’’ may be used for reporting withheld § 79.1 Reissuance and purpose. taxes to the State. The media for reporting This part is reissued to update the (paper copy, magnetic tape, etc.) will comply policies that implement title 5 U.S.C. with State reporting standards that apply to sections 5518 and 8331—8348, E.O. 10996, employers in general. and title 32 U.S.C. 709 for employer and Article V—Other Provisions employee contributions to State-spon- A. This agreement shall be subject to any sored retirement programs for National amendment of 10 U.S.C. 1045 and any regula- Guard technicians who have elected tions issued pursuant to such statutory participation. change.

333 § 79.2 32 CFR Ch. I (7–1–97 Edition)

§ 79.2 Applicability and scope. otherwise would contribute on behalf of the technician to the Civil Service (a) This part applies to the Office of Retirement and Disability Fund under the Secretary of Defense and the De- 5 U.S.C. 8334. partments of the Army and the Air (c) A person covered under a State- Force. sponsored program shall not concur- (b) Its provisions establish terms and rently earn credits toward retirement conditions governing Federal and em- or receive an annuity under 5 U.S.C. ployee contributions for National 8334. Guard technicians who have elected (d) A person who retires under a participation in a State-sponsored em- State retirement program shall not be ployee retirement program not later eligible for any rights, benefits, or than January 1, 1969. An eligible State privileges to which retired civilian em- employee retirement program may ex- ployees of the United States may be tend to disability and survivor bene- entitled. fits. (e) Agreements with States shall § 79.3 Definitions. comply with the standards contained in § 79.7. (a) National Guard. The Army and Air National Guard of a State. § 79.6 Responsibilities. (b) State. A State or territory of the (a) The Assistant Secretary of Defense United States, including the Common- (Comptroller) shall establish policy and wealth of Puerto Rico. procedures regarding State retirement (c) Technician. A Federal employee of programs for National Guard techni- the National Guard, consistent with cians and shall update agreements with title 26, U.S.C. section 3111, exclusive of authorized State officials for the Sec- National Guard Bureau employees. retary of Defense. § 79.4 Policy. (b) The Secretary of the Army shall (1) implement the provisions of this Direc- It is the policy of the Department of tive; (2) coordinate actions with the Defense to: (a) Negotiate agreements Secretary of the Air Force; and (3) des- with States for Federal employees’ ignate the National Guard Bureau as contributions to a State or State-spon- the responsible agent for maintaining sored contributory retirement pro- existing agreements with States and gram; and (b) cooperate and process for coordinating administrative ac- agreements with each State requesting tions, to include preparing updated a withholding agreement covering agreements. technicians of the National Guard for a State-sponsored retirement program. § 79.7 Standards for contribution agreements with State retirement § 79.5 Procedures. programs for National Guard tech- (a) Section 6(a) of Public Law 90–486 nicians. requires technicians who elected to Each agreement between the Sec- continue coverage under a State retire- retary of Defense and the Governor, or ment plan to make such an election by other authorized State official, for em- January 1, 1969. If a technician filed a ployer and employee contributions to a valid election to remain covered by an State retirement program for National employee retirement system sponsored Guard technicians shall be completed by a State, the U.S. Government may within 120 days of receipt of a State repay the amount of the employer’s con- quest, Provided, that— tribution and withhold the employee’s (a) State law provides for payment of designated share for deposit to the employee contributions to a State- State program that becomes due for sponsored employee retirement system the period beginning on or after Janu- by withholding sums from the employ- ary 1, 1969. ee’s compensation and making pay- (b) The Federal share of payments, ment to the official designated to re- including employer’s taxes imposed by ceive sums withheld. 26 U.S.C. 3111, may not exceed the (b) The program is limited to techni- amount that the employing agency cians of the National Guard.

334 Office of the Secretary of Defense § 80.1

(c) Each agreement is consistent with APPENDIX A TO PART 80—PROCEDURES FOR this Directive and contains a clause THE PROVISION OF EARLY INTERVENTION that subjects the agreement to any SERVICES FOR INFANTS AND TODDLERS WITH DISABILITIES, AGES 0–2 (INCLUSIVE), AND statutory amendments occurring after THEIR FAMILIES the effective date of the agreement. (d) The agreement shall comply with APPENDIX B TO PART 80—PROCEDURES FOR SPECIAL EDUCATIONAL PROGRAMS (INCLUD- the requirements of State law that ING RELATED SERVICES) AND FOR PRESCHOOL specify who is eligible for such State- CHILDREN AND CHILDREN WITH DISABILITIES sponsored retirement programs. (3–21 YEARS INCLUSIVE) (e) The commencement date for con- APPENDIX C TO PART 80—HEARING tributions must be specified. PROCEDURES (f) Contribution procedures, filing requirements, and payment instructions AUTHORITY: 20 U.S.C. 1400 et seq.; 20 U.S.C. conform, when practicable, to the 241; 20 U.S.C. 241 note. usual fiscal practices of the Depart- SOURCE: 59 FR 37680, July 25, 1994, unless ment of the Army and the Department otherwise noted. of the Air Force. § 80.1 Purpose. (g) The agreement does not impose This part: requirements on the Department of De- (a) Establishes policies and proce- fense that are more burdensome than dures for the provision of early inter- those requirements imposed on depart- vention services to infants and toddlers ments, agencies, or subdivisions of the with disabilities (birth to age 2 inclu- State concerned. sive) and their families, and special (h) Except to the extent that an education and related services to chil- agreement may be inconsistent with dren with disabilities (ages 3–21 inclu- this Directive, it shall continue in full sive) entitled to receive special edu- force and effect until amended, modi- cational instruction or early interven- fied, or terminated by appropriate au- tion services from the Department of thority. Defense under Pub. L. 81–874, sec. 6, as amended; Pub. L. 97–35, sec. 505(c); the PART 80—PROVISION OF EARLY Individuals with Disabilities Education Act, Pub. L. 94–142, as amended; Pub. L. INTERVENTION SERVICES TO ELI- 102–119, sec. 23; and consistent with 32 GIBLE INFANTS AND TODDLERS CFR parts 285 and 310, and the Federal WITH DISABILITIES AND THEIR Rules of Civil Procedures (28 U.S.C.). FAMILIES, AND SPECIAL EDU- (b) Establishes policy, assigns respon- CATION CHILDREN WITH DISABIL- sibilities, and prescribes procedures for: ITIES WITHIN THE SECTION 6 (1) Implementation of a comprehen- SCHOOL ARRANGEMENTS sive, multidisciplinary program of early intervention services for infants Sec. and toddlers ages birth through 2 years 80.1 Purpose. (inclusive) with disabilities and their 80.2 Applicability and scope. families. 80.3 Definitions. (2) Provision of a free, appropriate 80.4 Policy. education including special education 80.5 Responsibilities. and related services for preschool chil- 80.6 Procedures. dren with disabilities and children with disabilities enrolled in the Department of Defense Section 6 School Arrange- ments. (c) Establishes a Domestic Advisory Panel (DAP) on Early Intervention and

335 § 80.2 32 CFR Ch. I (7–1–97 Edition)

Education for Infants, Toddlers, Pre- acquisition, or use of an assistive tech- school Children and Children with Dis- nology device. This term includes: abilities, and a DoD Coordinating Com- (1) Evaluating the needs of an indi- mittee on Domestic Early Interven- vidual with a disability, including a tion, Special Education and Related functional evaluation of the individual Services. in the individual’s customary environ- (d) Authorizes the publication of DoD ment. Regulations and Manuals, consistent (2) Purchasing, leasing, or otherwise with DoD 5025.1–M,1 and DoD forms providing for the acquisition of consistent with DoD 5000.12–M 2 and assistive technology devices by individ- DoD Directive 8910.1 3 to implement uals with disabilities. this part. (3) Selecting designing, fitting, cus- tomizing, adapting, applying, main- § 80.2 Applicability and scope. taining, repairing, or replacing of This part: assistive technology devices. (a) Applies to the Office of the Sec- (4) Coordinating and using other retary of Defense, the Military Depart- therapies, interventions, or services ments, the Chairman of the Joint with assistive technology devices, such Chiefs of Staff and the Joint Staff, the as those associated with existing edu- Unified and Specified Commands, the cational and rehabilitative plans and Inspector General of the Department of programs. Defense, the Defense Agencies, and the (5) Training or technical assistance DoD Field Agencies (hereafter referred for an individual with disabilities, or, to collectively as ‘‘the DoD Compo- where appropriate, the family of an in- nents’’). dividual with disabilities. (b) Encompasses infants, toddlers, (6) Training or technical assistance preschool children, and children receiv- for professionals (including individuals ing or entitled to receive early inter- providing educational rehabilitative vention services or special educational services), employers, or other individ- instruction from the DoD on installa- uals who provide services to, employ, tions with Section 6 School Arrange- or are otherwise substantially involved ments, and the parents of those indi- in the major life functions of an individuals with disabilities. vidual with a disability. (c) Applies only to schools operated (c) Attention deficit disorder (ADD). As by the Department of Defense within used to define students, encompasses the Continental United States, Alaska, attention-deficit hyperactivity dis- Hawaii, Puerto Rico, Wake Island, order and attention deficit disorder Guam, American Samoa, the Northern without hyperactivity. The essential Mariana Islands, and the Virgin Is- features of this disorder are devel- lands. opmentally inappropriate degrees of in- attention, impulsiveness, and hyper- § 80.3 Definitions. activity. (a) Assistive technology device. Any (1) A diagnosis of ADD may be made item, piece of equipment, or product only after the child is evaluated by ap- system, whether acquired commer- propriate medical personnel, and eval- cially or off the shelf, modified, or cus- uation procedures set forth in this part tomized, that is used to increase, main- (appendix B to this part) are followed. tain, or improve functional capabilities (2) A diagnosis of ADD, in and of it- of individuals with disabilities. self, does not mean that a child re- (b) Assistive technology service. Any quires special education; it is possible service that directly assists an individ- that a child diagnosed with ADD, as ual with a disability in the selection, the only finding, can have his or her educational needs met within the regular education setting. 1 Copies may be obtained, at cost, from the National Technical Information Service, 5285 (3) For a child with ADD to be eligi- Port Royal Road, Springfield, VA 22161. ble for special education, the Case 2 See footnote 1 to § 80.1(c). Study Committee, with assistance 3 See footnote 1 to § 80.1(c). from the medical personnel conducting

336 Office of the Secretary of Defense § 80.3 the evaluation, must then make a de- Section 6 School Arrangement to seek termination that the ADD is a chronic and identify children (from birth to 21 or acute health problem that results in years of age) who show indications that limited alertness, which adversely af- they might be in need of early inter- fects educational performance. Chil- vention services or special education dren with ADD who are eligible for spe- and related services. Child-find activi- cial education and medically related ties include the dissemination of infor- services will qualify for services under mation to the public and identifica- ‘‘Other Health Impaired’’ as described tion, screening, and referral proce- in Criterion A, paragraph (h)(1) of this dures. section. (g) Children with disabilities ages 5–21 (d) Autism. A developmental disabil- (inclusive). Those children ages 5–21 ity significantly affecting verbal and years (inclusive), evaluated in accord- non-verbal communication and social ance with this part, who are in need of interaction generally evident before special education as determined by a age 3 that adversely affects educational CSC and who have not been graduated performance. Characteristics of autism from a high school or who have not include irregularities and impairments completed the requirements for a Gen- in communication, engagement in re- eral Education Diploma. The terms petitive activities and stereotyped ‘‘child’’ and ‘‘student’’ may also be movements, resistance to environ- used to refer to this population. The mental change or change in daily student must be determined eligible routines, and unusual responses to sen- under one of the following four cat- sory experiences. The term does not in- egories: clude children with characteristics of (1) Criterion A. The educational per- the disability of serious emotional dis- formance of the student is adversely af- turbance. fected, as determined by the CSC, by a (e) Case Study Committee (CSC). A physical impairment; visual impair- school-based committee that deter- ment including blindness; hearing im- mines a child’s eligibility for special pairment including deafness; ortho- education, develops and reviews a pedic impairment; or other health im- child’s individualized education pro- pairment, including ADD, when the gram (IEP), and determines appro- condition is a chronic or acute health priate placement in the least restric- problem that results in limited alert- tive environment. A CSC is uniquely ness; autism; and traumatic brain in- composed for each child. Participants jury requiring environmental and/or on a CSC must include: academic modifications. (1) The designated representative of (2) Criterion B. A student who mani- the Section 6 School Arrangement, who fests a psychoemotional condition that is qualified to supervise the provision is the primary cause of educational dif- of special education. Such representa- ficulties; a student who exhibits tive may not be the child’s special edu- maladaptive behavior to a marked de- cation teacher. gree and over a long period of time (2) One, or more, of the child’s regu- that interferes with skill attainment, lar education teachers, if appropriate. classroom functioning or performance, (3) A special education teacher. social-emotional condition, and who as (4) One, or both, of the child’s par- a result requires special education. The ents. term does not usually include a stu- (5) The child, if appropriate. dent whose difficulties are primarily (6) A member of the evaluation team the result of: or another person knowledgeable about (i) Intellectual deficit; the evaluation procedures used with the child. (ii) Sensory or physical impairment; (7) Other individuals, at the discre- (iii) Attention deficit hyperactivity tion of the parent or the Section 6 disorder; School Arrangement, who may have (iv) Antisocial behavior; pertinent information. (v) Parent-child or family problems; (f) Child-find. The ongoing process (vi) Disruptive behavior disorders; used by the Military Services and a (vii) Adjustment disorders;

337 § 80.3 32 CFR Ch. I (7–1–97 Edition)

(viii) Interpersonal or life cir- early intervention services for which cumstance problems; or consent is obtained shall be provided. (ix) Other problems that are not the (i) Deaf. A hearing loss or deficit so result of a severe emotional disorder. severe that the child is impaired in (3) Criterion C. The educational per- processing linguistic information formance of the student is adversely af- through hearing, with or without am- fected, as determined by the CSC, by a plification, to the extent that his or speech and/or language impairment. her educational performance is ad- (4) Criterion D. The measured aca- versely affected. demic achievement of the student in (j) Deaf-blind. Concomitant hearing math, reading, or language is deter- and visual impairments, the combina- mined by the CSC to be adversely af- tion of which causes such severe com- fected by underlying disabilities (in- munication and other developmental cluding mental retardation and specific and educational problems that they learning disability) including either an intellectual deficit or an information cannot be accommodated in special processing deficit. education programs solely for children (5) Criterion E. A child, 0–5 inclusive, with deafness or children with blind- whose functioning level as determined ness. by the CSC, is developmentally delayed (k) Developmental delay. A significant and would qualify for special education discrepancy in the actual functioning and related services as determined by of an infant or toddler when compared this regulation. with the functioning of a nondisabled (h) Consent. This term means that: infant or toddler of the same chrono- (1) The parent of an infant, toddler, logical age in any of the following child, or preschool child with a disabil- areas of development: Physical devel- ity has been fully informed, in his or opment, cognitive development, com- her native language, or in another munication development, social or mode of communication, of all infor- emotional development, and adaptive mation relevant to the activity for development as measured using stand- which permission is sought. ardized evaluation instruments and (2) The parent understands and confirmed by clinical observation and agrees in writing to the implementa- judgment. A significant discrepancy tion of the activity for which his or her exists when the one area of develop- permission is sought. The writing must ment is delayed by 25 percent or 2 describe that activity, list the child’s standard deviations or more below the records that will be released and to mean or when two areas of develop- whom, and acknowledge that the par- ment are each delayed by 20 percent or ent understands consent is voluntary 11⁄2 standard deviations or more below and may be prospectively revoked at the mean. (Chronological age should be any time. corrected for prematurity until 24 (3) The parent of an infant, toddler, months of age.) preschool child or child must consent (l) Early intervention service coordina- to the release of records. The request tion services. Case management services for permission must describe that ac- that include integration and oversight tivity, list each individual’s records of the scheduling and accomplishment that will be released and to whom, and of evaluation and delivery of early acknowledge that the parent understands that consent is voluntary and intervention services to an infant or may be prospectively revoked at any toddler with a disability and his or her time. family. (4) The written consent of a parent of (m) Early intervention services. Devel- an infant or toddler with a disability is opmental services that: necessary for implementation of early (1) Are provided under the super- intervention services described in the vision of a military medical depart- individualized family service plan ment. (IFSP). If such parent does not provide (2) Are provided using Military consent with respect to a particular Health Service System and community early intervention service, then the resources.

338 Office of the Secretary of Defense § 80.3

(i) Evaluation IFSP development and through 21 inclusive) has a disability revision, and service coordination serv- under this part and the nature and ex- ices are provided at no cost to the intent of the early intervention services fant’s or toddler’s parents. and special education and related serv- (ii) Incidental fees (e.g., child care ices that the individual needs. These fees) that are normally charged to in- procedures must be used selectively fants, toddlers, and children without with an individual and may not include disabilities or their parents may be basic tests administered to, or used charged. with, all infants, toddlers, preschool (3) Are designed to meet the devel- children or children in a school, grade, opmental needs of an infant or toddler class, program, or other grouping. with a disability in any one or more of (o) Family training, counseling, and the following areas: Physical develop- home visits. Services provided, as appro- ment, cognitive development, commu- priate, by social workers, psycholo- nication development, social or emo- gists, and other qualified personnel to tional development, or adaptive devel- assist the family of an infant or toddler opment. eligible for early intervention services (4) Meet the standards developed by in understanding the special needs of the Assistant Secretary of Defense for the child and enhancing the infant or Health Affairs (ASD(HA)). toddler’s development. (5) Include the following services: (p) Free appropriate public education. Family training, counseling, and home Special education and related services visits; special instruction; speech pa- for children ages 3–21 years (inclusive) thology and audiology; occupational that: therapy; physical therapy; psycho- (1) Are provided at no cost (except as logical services; early intervention pro- provided in paragraph (xx)(1) of this gram coordination services; medical section, to parents or child with a dis- services only for diagnostic or evalua- ability and are under the general su- tion purposes; early identification, pervision and direction of a Section 6 screening, and assessment services; vi- School Arrangement. sion services; and social work services. (2) Are provided at an appropriate Also included are assistive technology preschool, elementary, or secondary devices and assistive technology serv- school. ices; health services necessary to en- (3) Are provided in conformity with able the infant or toddler to benefit an Individualized Education Program. from the above early intervention serv- (4) Meet the requirements of this ices; and transportation and related part. costs that are necessary to enable an (q) Frequency and intensity. The num- infant or toddler and the infant’s or ber of days or sessions that a service toddler’s family to receive early inter- will be provided, the length of time vention services. that the service is provided during each (6) Are provided by qualified person- session, whether the service is provided nel, including: Special educators; during each session, and whether the speech and language pathologists and service is provided on an individual or audiologists; occupational therapists; group basis. physical therapists; psychologists; so- (r) Health services. Services necessary cial workers; nurses’ nutritionists; to enable an infant or toddler, to bene- family therapists; orientation and mo- fit from the other early intervention bility specialists; and pediatricians and services under this part during the other physicians. time that the infant or toddler is re- (7) To the maximum extent appro- ceiving the other early intervention priate, are provided in natural environ- services. The term includes: ments, including the home and commu- (1) Such services as clean intermit- nity settings in which infants and tod- tent catheterization, tracheostomy dlers without disabilities participate. care, tube feeding, the changing of (8) Are provided in conformity with dressings or osteotomy collection bags, an IFSP. and other health services. (n) Evaluation. Procedures used to de- (2) Consultation by physicians with termine whether an individual (birth other service providers on the special

339 § 80.3 32 CFR Ch. I (7–1–97 Edition) health care needs of infants and tod- years (inclusive), who need early inter- dlers with disabilities that will need to vention services because they: be addressed in the course of providing (1) Are experiencing a developmental other early intervention services. delay, as measured by appropriate di- (3) The term does not include the fol- agnostic instruments and procedures, lowing: of 25 percent (or 2 standard deviations (i) Services that are surgical in na- below the mean), in one or more areas, ture or purely medical in nature. or 20 percent (or 11⁄2 standard devi- (ii) Devices necessary to control or ations below the mean), in two or more treat a medical condition. of the following areas of development: (iii) Medical or health services that Cognitive, physical, communication, are routinely recommended for all in- social or emotional, or adaptive devel- fants or toddlers. opment. (s) Hearing impairment. A hearing loss, (2) Are at-risk for a developmental whether permanent or fluctuating, delay; i.e., have a diagnosed physical or that adversely affects an infant’s, tod- mental condition that has a high prob- dler’s, preschool child’s, or child’s edu- ability of resulting in developmental cational performance. delay; e.g., chromosomal disorders and (t) High probability for developmental genetic syndromes. delay. An infant or toddler with a medi- (aa) Intercomponent. Cooperation cal condition that places him or her at among the DoD Components and pro- substantial risk of evidencing a devel- grams so that coordination and inte- opmental delay before the age of 5 gration of services to individuals with years without the benefit of early disabilities and their families occur. intervention services. (bb) Medically related services. (1) Med- (u) Include; such as. Not all the pos- ical services (as defined in paragraph sible items are covered, whether like or (cc) of this section) and those services unlike the ones named. provided under professional medical su- (v) Independent evaluation. An evalua- pervision that are required by a CSC ei- tion conducted by a qualified examiner ther to determine a student’s eligi- who is not employed by the DoD Sec- bility for special education or, if the tion 6 Schools. student is eligible, the special edu- (w) Individualized education program cation and related services required by (IEP). A written statement for a pre- the student under this part in accord- school child or child with a disability (ages 3–21 years inclusive) developed ance with 32 CFR part 345. and implemented in accordance with (2) Provision of either direct or indi- this part (appendix B to this part). rect services listed on an IEP as nec- (x) Individualized family service plan essary for the student to benefit from (IFSP). A written statement for an in- the educational curriculum. These fant or toddler with a disability and his services may include: Medical; social or her family that is based on a multi- work; community health nursing; die- disciplinary assessment of the unique tary; psychiatric diagnosis; evaluation, needs of the infant or toddler and con- and follow up; occupational therapy; cerns and the priorities of the family, physical therapy; audiology; ophthal- and an identification of the services mology; and psychological testing and appropriate to meet such needs, con- therapy. cerns, and priorities. (cc) Medical services. Those evalua- (y) Individuals with disabilities. In- tive, diagnostic, and supervisory serv- fants and toddlers with disabilities, ices provided by a licensed and preschool children with disabilities, credentialed physician to assist CSCs and children with disabilities, collec- and to implement IEPs. Medical serv- tively, ages birth to 21 years (inclusive) ices include diagnosis, evaluation, and who are either entitled to enroll in a medical supervision of related services Section 6 School Arrangement or that by statute, regulation, or profes- would, but for their age, be so entitled. sional tradition are the responsibility (z) Infants and toddlers with disabil- of a licensed and credentialed physi- ities. Individuals from birth to age 2 cian.

340 Office of the Secretary of Defense § 80.3

(dd) Mental retardation. Significantly (kk) Other health impairment. Having subaverage general intellectual func- an autistic condition that is mani- tioning, existing concurrently with fested by severe communication and deficits in adaptive behavior and mani- other developmental and educational fested during the developmental pe- problems; or having limited strength, riod, that adversely affects a preschool vitality, or alertness due to chronic or child’s or child’s educational perform- acute health problems that adversely ance. affect a child’s educational perform- (ee) Multidisciplinary. The involve- ance as determined by the CSC, such ment of two or more disciplines or pro- as: ADD, heart condition, tuberculosis, fessions in the provision of integrated rheumatic fever, nephritis, asthma, and coordinated services, including sickle cell anemia, hemophilia, epi- evaluation and assessment activities, lepsy, lead poisoning, leukemia, and di- and development of an IFSP or IEP. abetes. (ff) Native language. When used with (ll) Parent. The biological father or reference to an individual of limited mother of a child; a person who, by English proficiency, the language nor- order of a court of competent jurisdic- mally used by such individuals, or in tion, has been declared the father or the case of an infant, toddler, preschool mother of a child by adoption; the legal child or child, the language normally guardian of a child; or a person in used by the parent of the infant, tod- whose household a child resides, pro- dler, preschool child or child. vided that such person stands in loco parentis to that child and contributes (gg) Natural environments. Settings at least one-half of the child’s support. that are natural or normal for the in- (mm) Personally identifiable informa- fant or toddler’s same age peers who tion. Information that includes the have no disability. name of the infant, toddler, preschool (hh) Non-section 6 school arrangement child, child, parent or other family . A public or private school or or facility member; the home address of the in- other institution not operated in ac- fant, toddler, preschool child, child, cordance with 32 CFR part 345. This parent or other family member; an- term includes Section 6 special con- other personal identifier, such as the tractual arrangements. infant’s, toddler’s, preschool child’s, (ii) Nutrition services. These services child’s, parent’s or other family mem- include: ber’s social security number; or a list (1) Conducting individual assess- of personal characteristics or other in- ments in nutritional history and die- formation that would make it possible tary intake; anthropometric, bio- to identify the infant, toddler, pre- chemical and clinical variables; feeding school child, child, parent, or other skills and feeding problems; and food family member with reasonable cer- habits and food preferences. tainty. (2) Developing and monitoring appro- (nn) Preschool children with disabil- priate plans to address the nutritional ities. These are students, ages 3–5 years needs of infants and toddlers eligible (inclusive), who need special education for early intervention services. services because they: (3) Making referrals to appropriate (1) Are experiencing developmental community resources to carry out nu- delays, as measured by appropriate di- trition goals. agnostic instruments and procedures in (jj) Orthopedic impairment. A severe one or more of the following areas: physical impairment that adversely af- Cognitive development, physical devel- fects a child’s educational perform- opment, communication development, ance. The term includes congenital im- social or emotional development, and pairments (such as club foot and ab- adaptive development; and sence of some member), impairments (2) Who, by reason thereof, need spe- caused by disease (such as polio- cial education and related services. myelitis and bone tuberculosis), and (oo) Primary referral source. The DoD impairments from other causes such as Components, including child care cen- cerebral palsy, amputations, and frac- ters, pediatric clinics, and parents that tures or burns causing contracture. suspect an infant, toddler, preschool

341 § 80.3 32 CFR Ch. I (7–1–97 Edition) child or child has a disability and bring cial education, as determined by a that infant, toddler, preschool child or CSC. child to the attention of the Early (1) Audiology. This term includes: Intervention Program or school CSC. (i) Audiological, diagnostic, and pre- (pp) Public awareness program. Activi- scriptive services provided by ties focusing on early identification of audiologists who have a Certificate of infants and toddlers with disabilities, Clinical Competence—Audiology (CCC– including the preparation and dissemi- A) and pediatric experience. Audiology nation by the military medical depart- shall not include speech therapy. ment to all primary referral sources of (ii) Identification of children with information materials for parents on hearing loss. the availability of early intervention (iii) Determination of the range, na- services. Also includes procedures for ture, and degree of hearing loss, includ- determining the extent to which pri- ing referral for medical or other profes- mary referral sources within the De- sional attention designed to ameliorate partment of Defense, especially within or correct that loss. DoD medical treatment facilities, and (iv) Provision of ameliorative and physicians disseminate information on corrective activities, including lan- the availability of early intervention guage and auditory training, speech- services to parents of infants or tod- reading (lip-reading), hearing evalua- dlers with disabilities. tion, speech conservation, the rec- (qq) Qualified. With respect to in- ommendation of amplification devices, structional personnel, a person who and other aural rehabilitation services. holds at a minimum a current and ap- (v) Counseling and guidance of chil- plicable teaching certificate from any dren, parents, and service providers re- of the 50 States, Puerto Rico, or the garding hearing loss. District of Columbia, or has met other (vi) Determination of the child’s need pertinent requirements in the areas in for group and individual amplification, which he or she is providing special selecting and fitting an appropriate education or related services not of a aid, and evaluating the effectiveness of medical nature to children with dis- amplification. abilities. Providers of early interven- (2) Counseling services. Services pro- tion services and medically related vided by qualified social workers, psy- services must meet standards estab- chologists, guidance counselors, or lished by the ASD(HA). other qualified personnel to help a pre- (rr) Related services. This includes school child or child with a disability transportation, and such developmen- to benefit from special education. tal, corrective, and other supportive (3) Early identification. The implemen- services (including speech pathology tation of a formal plan for identifying and audiology; psychological services; a disability as early as possible in the physical and occupational therapy; individual’s life. recreation, including therapeutic (4) Medical services. Those evaluative, recreation and social work services; diagnostic, and supervisory services and medical and counseling services), provided by a licensed and credentialed including rehabilitation counseling physician to assist CSCs in determin- (except that such medical services ing whether a child has a medically re- shall be for diagnostic and evaluative lated disability condition that results purposes only) as may be required to in the child’s need for special edu- assist a child with a disability to bene- cation and related services and to im- fit from special education, and includes plement IEPs. Medical services include the early identification and assessment diagnosis, evaluation, and medical su- of disabling conditions in preschool pervision of related services that, by children or children. The following list statute, regulation, or professional tra- of related services is not exhaustive dition, are the responsibility of a li- and may include other developmental, censed and credentialed physician. corrective, or supportive services (such (5) Occupational therapy. Therapy as clean intermittent catheterization), that provides developmental evalua- if they are required to assist a child tions and treatment programs using se- with a disability to benefit from spe- lected tasks to restore, reinforce, or

342 Office of the Secretary of Defense § 80.3 enhance functional performance. It ad- (v) Planning and managing a pro- dresses the quality and level of func- gram of psychological services, includ- tions in areas such as behavior, motor ing psychological counseling for pre- coordination, spatial orientation; vis- school children, children, and parents. ual motor and sensory integration; and For the purpose of these activities, a general activities of daily living. This qualified psychologist is a psychologist therapy, which is conducted or super- licensed in a State of the United States vised by a qualified occupational thera- who has a degree in clinical or school pist, provides training and guidance in psychology and additional pediatric using special equipment to improve the training and/or experience. patient’s functioning in skills of daily (9) Recreation. This term includes: living, work, and study. (i) Assessment of leisure activities. (6) Parent counseling and training. As- (ii) Therapeutic recreational activi- sisting parents in understanding the ties. special needs of their preschool child or (iii) Recreational programs in child and providing parents with infor- schools and community agencies. mation about child development and (iv) Leisure education. special education. (10) School health services. Services (7) Physical therapy. Therapy that provided, pursuant to an IEP, by a provides evaluations and treatment qualified school health nurse, or other programs using exercise, modalities, qualified person, that are required for a and adaptive equipment to restore, re- preschool child or child with a disabil- inforce, or enhance motor performance. ity to benefit from special education. It focuses on the quality of movement, (11) Social work counseling services in reflex development, range of motion, schools. This term includes: muscle strength, gait, and gross motor (i) Preparing a social and devel- development, seeking to decrease ab- opmental history on a preschool child normal movement and posture while or child identified as having a disabil- facilitating normal movement and ity. equilibrium reactions. The therapy, (ii) Counseling the preschool child or which is conducted by a qualified phys- child with a disability and his or her ical therapist, provides for measure- family on a group or individual basis, ment and training in the use of adapt- pursuant to an IEP. ive equipment and prosthetic and (iii) Working with problems in a pre- orthotic appliances. Therapy may be school child’s or child’s living situation conducted by a qualified physical ther- (home, school, and community) that apist assistant under the clinical su- adversely affect his or her adjustment pervision of a qualified physical thera- in school. pist. (iv) Using school and community re- (8) Psychological services. Services sources to enable the preschool child or listed in paragraphs (rr) (8) (i) through child to receive maximum benefit from (rr) (8) (iv) of this section that are pro- his or her educational program. vided by a qualified psychologist: (12) Speech pathology. This term in- (i) Administering psychological and cludes the: educational tests and other assessment (i) Identification of preschool chil- procedures. dren and children with speech or lan- (ii) Interpreting test and assessment guage disorders. results. (ii) Diagnosis and appraisal of spe- (iii) Obtaining, integrating, and in- cific speech or language disorders. terpreting information about a pre- (iii) Referral for medical or other school child’s or child’s behavior and professional attention to correct or conditions relating to his or her learn- ameliorate speech or language dis- ing. orders. (iv) Consulting with other staff mem- (iv) Provision of speech and language bers in planning school programs to services for the correction, ameliora- meet the special needs of preschool tion, and prevention of communicative children and children, as indicated by disorders. psychological tests, interviews, and be- (v) Counseling and guidance of pre- havioral evaluations. school children, children, parents, and

343 § 80.3 32 CFR Ch. I (7–1–97 Edition) teachers regarding speech and language nosis and that, over a long period of disorders. time and to a marked degree, adversely (13) Transportation. This term in- affects educational performance and cludes transporting the individual with that exhibits one or more of the follow- a disability and, when necessary, an ating characteristics: tendant or family member or reimburs- (i) An inability to learn that cannot ing the cost of travel ((e.g., mileage, or be explained by intellectual, sensory, travel by taxi, common carrier or other or health factors. means) and related costs (e.g., tolls and (ii) An inability to build or maintain parking expenses)) when such travel is satisfactory interpersonal relation- necessary to enable a preschool child ships with peers and teachers. or child to receive special education (iii) Inappropriate types of behavior (including related services) or an in- under normal circumstances. fant or toddler and the infant’s or tod- (iv) A tendency to develop physical dler’s family to receive early interven- symptoms or fears associated with per- tion services. Transportation services sonal or school problems. include: (v) A general, pervasive mood of un- (i) Travel to and from school and be- happiness or depression. tween schools, including travel nec- (2) Schizophrenia, but does not in- essary to permit participation in edu- clude children who are socially mal- cational and recreational activities adjusted, unless it is determined that and related services. they are otherwise seriously emotion- (ii) Travel from school to a medically ally disturbed. related service site and return. (vv) Service provider. Any individual (iii) Travel in and around school who provides services listed in an IEP buildings. or an IFSP. (iv) Travel to and from early inter- (ww) Social work services. This term vention services. includes: (v) Specialized equipment (including (1) Preparing a social or developmen- special or adapted buses, lifts, and tal history on an infant, toddler, pre- ramps) if required to provide special school child or child with a disability. transportation for an individual with a (2) Counseling with the infant, tod- disability. dler, preschool child or child and fam- (vi) If necessary, attendants assigned ily in a group or individual capacity. to vehicles transporting an individual (3) Working with individuals with with a disability when that individual disabilities (0–21 inclusive) in the home requires assistance to be safely trans- school, and/or community environment ported. to ameliorate those conditions that ad- (ss) Section 6 School Arrangement. The versely affect development or edu- schools (pre-kindergarten through cational performance. grade 12) operated by the Department (4) Using school and community re- of Defense within the CONUS, Alaska, sources to enable the child to receive Hawaii, Puerto Rico, Wake Island, maximum benefit from his or her edu- Guam, American Samoa, the Northern cational program or for the infant, tod- Mariana Islands, and the Virgin Is- dler, and family to receive maximum lands. Section 6 School Arrangements benefit from early intervention serv- are operated under DoD Directive ices. 1342.21.4 (xx) Special education. Specially de- (tt) Separate facility. A school or a signed instruction, at no cost to the portion of a school, regardless of parent, to meet the unique needs of a whether it is used by the Section 6 preschool child or child with a disabil- School Arrangement, that is only at- ity, including instruction conducted in tended by children with disabilities. the classroom, in the home, in hos- (uu) Serious emotional disturbance. The pitals and institutions, and in other term includes: settings, and instruction in physical (1) A condition that has been con- education. The term includes speech firmed by clinical evaluation and diag- pathology or any other related service, if the service consists of specially de- 4 See footnote 1 to § 80.1(c). signed instruction, at no cost to the

344 Office of the Secretary of Defense § 80.3 parents, to meet the unique needs of a infant’s, toddler’s, preschool child’s or preschool child or child with a disabil- child’s development and cognitive ity, and is considered ‘‘special edu- processes. cation’’ rather than a ‘‘related serv- (zz) Specific learning disability. A dis- ice.’’ The term also includes vocational order in one or more of the basic psy- education if it consists of specially de- chological processes involved in under- signed instruction, at no cost to the standing or in using spoken or written parents, to meet the unique needs of a language that may manifest itself as child with a disability. an imperfect ability to listen, think, (1) At no cost. With regard to a pre- speak, read, write, spell, or do mathe- school child or child eligible to attend matical calculations. The term in- Section 6 School Arrangements, spe- cludes such conditions as perceptual cially designed instruction and related disabilities, brain injury, minimal services are provided without charge, brain dysfunction, dyslexia, and devel- but incidental fees that are normally opmental aphasia. The term does not charged to nondisabled students, or include preschool children or children their parents, as a part of the regular educational program may be imposed. who have learning problems that are (2) Physical education. The develop- primarily the result of visual, hearing, ment of: or motor disabilities, mental retarda- (i) Physical and motor fitness. tion, emotional disturbance, or envi- (ii) Fundamental motor skills and ronmental, cultural, or economic dif- patterns. ferences. (iii) Skills in aquatics, dance, and in- (aaa) Speech and language impair- dividual and group games and sports ments. A communication disorder, such (including intramural and lifetime as stuttering, impaired articulation, sports). voice impairment, or a disorder in the (iv) A program that includes special receptive or expressive areas of lan- physical education, adapted physical guage that adversely affects a pre- education, movement education, and school child’s or child’s educational motor development. performance. (3) Vocational education. This term (bbb) Superintendent. The chief offi- means organized educational programs cial of a Section 6 School Arrangement that are directly related to the prepa- responsible for the implementation of ration of individuals for paid or unpaid this part on his or her installation. employment, or for additional prepara- (ccc) Transition services. A coordi- tion for a career requiring other than a nated set of activities for a toddler baccalaureate or advanced degree. that may be required to promote move- (yy) Special instruction. This term in- ment from early intervention, precludes: school, and other educational programs (1) Designing learning environments into different programs or educational and activities that promote the in- settings. For a student 14 years of age fant’s, toddler’s, preschool child’s or child’s acquisition of skills in a variety and older, transition services are de- of developmental areas, including cog- signed within an outcome-oriented nitive processes and social interaction. process, which promotes movement (2) Planning curriculum, including from school to post-school activities, the planned interaction of personnel, including post-secondary education, materials, and time and space, that vocational training, integrated em- leads to achieving the outcomes in the ployment (including supported employ- infant’s, toddler’s, preschool child’s or ment), continuing and adult education, child’s IEP or IFSP. adult services, independent living, or (3) Providing families with informa- community participation. The coordi- tion, skills, and support related to en- nated set of activities shall be based hancing the skill development of the upon the individual student’s needs, infant, toddler, or preschool child or taking into account the student’s pref- child. erences and interests, and shall include (4) Working with the infant, toddler, instruction, community experiences, preschool child, or child to enhance the the development of employment and

345 § 80.4 32 CFR Ch. I (7–1–97 Edition) other post-school adult living objec- § 80.5 Responsibilities. tives, and when appropriate, acquisi- (a) The Under Secretary of Defense tion of daily living skills and func- for Personnel and Readiness tional vocational evaluation. (USD(P&R)) shall: (ddd) Traumatic brain injury. An in- (1) Ensure that all infants and tod- jury to the brain caused by an external dlers with disabilities (birth through 2 physical force or by an internal occur- years inclusive) who but for their age rence, such as stroke or aneurysm, re- would be eligible to attend the Section sulting in total or partial functional 6 Arrangement Schools, and their fami- disability or psychosocial maladjust- lies are provided early intervention ment that adversely affects edu- services in accordance with IDEA as cational performance. The term in- amended, (20 U.S.C., Chapter 33, Sub- cludes open or closed head injuries re- chapter VIII.) and in conformity with sulting in mild, moderate, or severe the procedures in appendix A to this impairments in one or more areas, in- part. cluding cognition; language, memory; (2) Ensure that preschool children attention; reasoning; abstract think- and children with disabilities ages 3–21 ing; judgment; problem solving; sen- years (inclusive) receiving educational sory; perceptual and motor abilities; instruction from Section 6 School Ar- psychosocial behavior; physical func- rangements are provided a free appro- tion; and information processing and priate public education and that the speech. The term does not include educational needs of such preschool brain injuries that are congenital or children and children with disabilities degenerative or brain injuries that are are met using the procedures estab- induced by birth trauma. lished by this part. (3) Ensure that educational facilities (eee) Vision services. Services nec- and services provided by Section 6 essary to ameliorate the effects of sen- School Arrangements for preschool sory impairment resulting from a loss children and children with disabilities of vision. are comparable to educational facili- (fff) Visual impairment. A sensory im- ties and services for non-disabled stu- pairment including blindness that, dents. even with correction, adversely affects (4) Maintain records on special edu- a preschool child’s or child’s education and related services provided to cational performance. The term in- children with disabilities, consistent cludes both partially seeing and blind with 32 CFR part 310. preschool children and children. (5) Ensure the provision of all necessary diagnostic services and special § 80.4 Policy. education and related services listed on It is DoD policy that: an IEP (including those supplied by or (a) All individuals with disabilities under the supervision of physicians) to ages 3 to 21 years receiving or entitled preschool children and children with to receive educational instruction from disabilities who are enrolled in Section the Section 6 School Arrangements 6 School Arrangements. In fulfilling shall be provided a free, appropriate this responsibility, (USD(P&R)), or des- education under this part in accord- ignee, may use intercomponent arrangements, or act through contracts ance with the IDEA as amended, 20 with private parties, when funds are U.S.C. Chapter 33; Pub. L. 102–119, Sec- authorized and appropriated. tion 23; and DoD Directive 1342.21. (6) Develop and implement a com- (b) All individuals with disabilities prehensive system of personnel devel- ages birth through 2 years (inclusive) opment, in accordance with 20 U.S.C. and their families are entitled to re- 1413–(a)(3), for all professional staff em- ceive early intervention services under ployed by a Section 6 School Arrange- this part, provided that such infants ment. This system shall include: and toddlers would be eligible to enroll (i) Inservice training of general and in a Section 6 School Arrangement but special educational instructional and for their age. support personnel,

346 Office of the Secretary of Defense § 80.5

(ii) Implementing innovative strate- result in due process proceedings under gies and activities for the recruitment this part. and retention of medically related (14) Ensure that transition services service providers, from early intervention services to reg- (iii) Detailed procedures to assure ular or special education and from spe- that all personnel necessary to carry cial education to the world of work are out the purposes of this part are appro- provided. priately and adequately prepared and (15) Ensure that all DoD programs trained, and that provide services to infants and (iv) Effective procedures for acquir- toddlers and their families (e.g., child ing and disseminating to teachers and care, medical care, recreation) are in- administrators of programs for chil- volved in a comprehensive intercompo- dren with disabilities significant infor- nent system for early intervention mation derived from educational re- services. search, demonstration, and similar (16) Ensure, whenever practicable, projects, and that planned construction not yet past (v) Adopting, where appropriate, the 35 percent design phase and new de- promising practices, materials, and sign begun after the date of this part of technology. renovation of school or child care fa- (7) Provide technical assistance to cilities includes consideration of the professionals in Section 6 School Ar- space required for the provision of rangements involved in, or responsible medically related services and early for, the education of preschool children intervention services. or children with disabilities. (17) Shall establish the Domestic Ad- (8) Ensure that child-find activities visory Panel that shall: are coordinated with other relevant (i) Consist of members appointed by components and are conducted to lo- the USD (P&R) or Principal Deputy cate and identify every individual with USD (P&R). Membership shall include disabilities. at least one representative from each (9) Issue guidance implementing this of the following groups: part. (A) Individuals with disabilities. (10) Undertake evaluation activities (B) Parents, including minority par- to ensure compliance with this part ents of individuals with disabilities through monitoring, technical assist- from various age groups. ance, and program evaluation. (C) Section 6 School Arrangements (11) Chair the DoD Coordinating special education teachers. Committee on Domestic Early Inter- (D) Section 6 School Arrangements vention, Special Education, and Relat- regular education teachers. ed Services, which shall be composed of representatives of the Secretaries of (E) Section 6 School Arrangements the Military Departments, the Assist- Superintendent office personnel. ant Secretary of Defense for Health Af- (F) The Office of Director, Section 6 fairs (ASD(HA)), the General Counsel Schools. of the Department of Defense (GC, (G) The Surgeons General of the Mili- DoD), and the Director, Section 6 tary Departments. Schools. (H) The Family Support Programs of (12) Through the DoD Coordinating the Military Departments. Committee on Demestic Early Inter- (I) Section 6 School Arrangements vention, Special Education, and Relat- School Boards. ed Services, monitor the provision of (J) Early Intervention service provid- special education and related services ers on installations with Section 6 and early intervention services fur- School Arrangements. nished under this part, and ensure that (K) Other appropriate personnel. related services, special education, and (ii) Meet as often as necessary. early intervention services are prop- (iii) Perform the following duties: erly coordinated. (A) Review information and provide (13) Ensure that appropriate person- advice to ASD (P&R) regarding im- nel are trained to provide mediation provements in services provided to in- services in cases that otherwise might dividuals with disabilities in Section 6

347 § 80.5 32 CFR Ch. I (7–1–97 Edition)

Schools and early intervention propriately qualified to provide early grams. intervention services and medically re- (B) Receive and consider the views of lated services, respectively. various parent, student, and profes- (iii) Training personnel to work in sional groups, and individuals with dis- the military environment. abilities. (iv) Training personnel to coordinate (C) When necessary, establish com- transition services for infants and tod- mittees for short-term purposes com- dlers with disabilities from an early posed of representatives from parent, intervention program to a preschool student, family and other professional program. groups, and individuals with disabil- (3) Develop and implement a system ities. for compiling data on the numbers of (D) Review the findings of fact and infants and toddlers with disabilities decision of each impartial due process and their families in need of appro- hearing conducted pursuant to this priate early intervention services, the part. numbers of such infants and toddlers (E) Assist in developing and reporting such information and evaluations and their families served, the types of as may aid Section 6 Schools and the services, and other information re- Military Departments in the perform- quired to evaluate the implementation ance of duties under the part. of early intervention programs. (F) Make recommendations, based on (4) Resolve disputes among the DoD program and operational information, Components arising under appendix A for changes in the budget, organiza- of this part. tion, and general management of the (c) Secretaries of the Military Depart- special education program, and in pol- ments shall: icy and procedure. (1) Provide quality assurance for (G) Comment publicly on rules or medically related services in accord- standards regarding the education of ance with personnel standards and individuals with disabilities. staffing standards under DoD Directive (H) Assist in developing rec- 6025.13 5 developed by the Assistant Sec- ommendations regarding the transition retary of Defense for Health Affairs of toddlers with disabilities to pre- (ASD(HA)). school services. (2) Plan, develop, and implement a (b) The Assistant Secretary of De- comprehensive, coordinated, inter- fense for Health Affairs in consultation component, community-based system with the USD(P&R), the GC, DoD, and of early intervention services for in- the Secretaries of the Military Depart- fants and toddlers with disabilities ments, shall: (birth through 2 inclusive) and their (1) Establish staffing and personnel families who are living on an installa- standards for personnel who provide tion with a Section 6 School Arrange- early intervention services and medi- ment, or who but for their age, would cally related services. be entitled to enroll in a Section 6 (2) Develop and implement a com- School Arrangement, using the proce- prehensive system of personnel devel- dures established by this part and opment in accordance with 20 U.S.C. guidelines from the ASD(HA) on staff- 1413(a)(3), including the training of pro- ing and personnel standards. fessionals, paraprofessionals and pri- (3) Undertake activities to ensure mary referral sources, regarding the compliance with this part through basic components of early intervention technical assistance, program evalua- services and medically related services. tion, and monitoring. Such a system may include: (i) Implementing innovative strate- (d) The Director, Defense Office of gies and activities for the recruitment Hearings and Appeals (DOHA) shall en- and retention of early intervention sure the provision of impartial due service providers. process hearings under appendix C of (ii) Ensuring that early intervention this part. service providers and medically related service providers are fully and appro- 5 See footnote 1 to § 80.1(c).

348 Office of the Secretary of Defense Pt. 80, App. A

§ 80.6 Procedures. c. A comprehensive child-find system, coordinated with the appropriate Section 6 (a) Procedures for the provision of School Arrangement, including a system for early intervention services for infants making referrals to service providers that and toddlers with disabilities and their includes timelines and provides for partici- families are in appendix A to this part. pation by primary referral sources, such as Provision of early intervention serv- the CDC and the pediatric clinic. ices includes establishing a system of d. A public awareness program including coordinated, comprehensive, multi- information on early identification of in- disciplinary, intercomponent services fants and toddlers with disabilities and the availability of resources in the community providing appropriate early interven- to address and remediate these disabilities. tion services to all eligible infants and e. A central directory that includes a de- toddlers with disabilities and their scription of the early intervention services families. and other relevant resources available in the (b) Procedures for special educational community. programs (including related services) B. Each Military Medical Department Shall for preschool children and children Develop and Implement a System to Provide for: with disabilities (3–21 years inclusive) are in appendix B to this part. 1. The administration and supervision of (c) Procedures for adjudicative re- early intervention programs and services, including the identification and coordination quirements required by Pub. L. 101–476, of all available resources. as amended, and Pub. L. 102–119 are in 2. The development of procedures to ensure appendix C to this part. These proce- that services are provided to infants and tod- dures establish adjudicative require- dlers with disabilities and their families in a ments whereby the parents of an in- timely manner. fant, toddler, preschool child or child 3. The execution of agreements with other with a disability and the military de- DoD components necessary for the imple- partment concerned or Section 6 mentation of this appendix. Such agreements must be coordinated with the ASD(HA) and School System are afforded an impar- the GC, DoD, in consultation with the tial due process hearing on early inter- USD(P&R). vention services or on the identifica- 4. The collection and reporting of data re- tion, evaluation, and educational quired by ASD(HA). placement of, and the free appropriate 5. A multidisciplinary assessment of the public education provided to, such in- unique strengths and needs of the infant or fant, toddler, preschool child or child, toddler and the identification of services ap- as the case may be. propriate to meet such needs. 6. A family-directed assessment of the resources, priorities, and concerns of the fam- APPENDIX A TO PART 80—PROCEDURES ily and the identification of the supports and FOR THE PROVISION OF EARLY services necessary to enhance the family’s INTERVENTION SERVICES FOR IN- capacity to meet the developmental needs of FANTS AND TODDLERS WITH DISABIL- its infant or toddler with a disability. ITIES, AGES 0–2 YEARS (INCLUSIVE), AND THEIR FAMILIES C. Each Military Medical Department Shall De- velop and Implement a Program to Ensure A. Requirements For A System of Early That an IFSP is Developed for Each Infant or Intervention Services Toddler With a Disability and the Infant’s or Toddler’s Family According to the Following 1. A system of coordinated, comprehensive, Procedures: multidisciplinary, and intercomponent programs providing appropriate early interven- 1. The IFSP shall be evaluated once a year tion services to all infants and toddlers with and the family shall be provided a review of disabilities and their families shall include the plan at 6-month intervals (or more often the following minimum components: where appropriate), based on the needs of the a. A timely, comprehensive, multidisci- infant or toddler and family. plinary evaluation of the functioning of each 2. Each initial meeting and each annual infant and toddler with a disability and the meeting to evaluate the IFSP must include priorities and concerns of the infant’s or tod- the following participants: dler’s family to assist in the development of a. The parent or parents of the infant or the infant or toddler with a disability. toddler. b. A mechanism to develop, for each infant b. Other family members, as requested by a and toddler with a disability, an IFSP and parent, if feasible to do so. early intervention services coordination, in c. An advocate, if his or her participation accordance with such service plan. is requested by a parent.

349 Pt. 80, App. B 32 CFR Ch. I (7–1–97 Edition)

d. The Early Intervention Program Serv- early intervention services described in such ices Coordinator who has been working with plan. If the parents do not provide such con- the family since the initial referral of the in- sent with respect to a particular early inter- fant or toddler or who has been designated as vention service, then the early intervention responsible for the implementation of the services to which such consent is obtained IFSP. shall be provided. e. A person or persons directly involved in conducting the evaluation and assessments. D. Procedural Safeguards for the Early f. Persons who will be providing services to Intervention Program the infant, toddler, or family, as appropriate. 1. The procedural safeguards include: g. If a person or persons listed in paragraph a. The timely administrative resolution of C.2 of this section is unable to attend a complaints by the parent(s), including hear- meeting, arrangements must be made for in- ing procedures (appendix C to this part). volvement through other means, including: (1) Participating in a telephone call. b. The right to protection of personally (2) Having a knowledgeable authorized rep- identifiable information under 32 CFR part resentative attend the meeting. 310. (3) Making pertinent records available at c. The right of the parent(s) to determine the meeting. whether they, their infant or toddler, or 3. The IFSP shall be developed within a other family members will accept or decline reasonable time after the assessment. With any early intervention service without jeop- the parent’s consent, early intervention ardizing the delivery of other early interven- services may start before the completion of tion services to which such consent is ob- such an assessment under an IFSP. tained. 4. The IFSP shall be in writing and con- d. The opportunity for the parent(s) to ex- tain: amine records on assessment, screening, eli- a. A statement of the infant’s or toddler’s gibility determinations, and the develop- present levels of physical development, cog- ment and implementation of the IFSP. nitive development, communication develop- e. Written prior notice to the parent(s) of ment, social or emotional development, and the infant or toddler with a disability when- adaptive development, based on acceptable ever the Military Department concerned pro- objective criteria. poses to initiate or change or refuses to ini- b. A statement of the family’s resources, tiate or change the identification, evalua- priorities, and concerns for enhancing the tion, placement, or the provision of appro- development of the family’s infant or toddler priate early intervention services to the in- with a disability. fant and toddler with a disability. c. A statement of the major outcomes ex- f. Procedures designed to ensure that the pected to be achieved for the infant or tod- notice required in paragraph D.1.e. of this dler and the family, and the criteria, proce- appendix fully informs the parents in the dures, and timelines used to determine the parents’ native language, unless it clearly is degree to which progress toward achieving not feasible to do so. the outcomes is being made and whether g. During the pending of any proceeding modifications or revisions of the outcomes under appendix C to this part, unless the or services are necessary. Military Department concerned and the par- d. A statement of the specific early inter- ent(s) otherwise agree, the infant or toddler vention services necessary to meet the shall continue to receive the early interven- unique needs of the infant or toddler and the tion services currently being provided, or, if family, including the frequency, intensity, applying for initial services, shall receive and the method of delivering services. the services not in dispute. e. A statement of the natural environments in which early intervention services APPENDIX B TO PART 80—PROCEDURES shall be provided. FOR SPECIAL EDUCATIONAL PRO- f. The projected dates for initiation of serv- GRAMS (INCLUDING RELATED SERV- ices and the anticipated duration of such ICES) FOR PRESCHOOL CHILDREN AND services. g. The name of the Early Intervention Pro- CHILDREN WITH DISABILITIES (3–21 gram Service Coordinator. YEARS INCLUSIVE) h. The steps to be taken supporting the A. Identification and Screening transition of the toddler with a disability to preschool services or other services to the 1. Each Section 6 School Arrangement extent such services are considered appro- shall locate, identify, and, with the consent priate. of a parent of each preschool child or child, 5. The contents of the IFSP shall be fully evaluate all preschool children or children explained to the parents by the Early Inter- who are receiving or are entitled to receive vention Program Service Coordinator, and an education from Section 6 School Arrange- informed written consent from such parents ments and who may need special education shall be obtained before the provision of and/or related services.

350 Office of the Secretary of Defense Pt. 80, App. B

2. Each Section 6 School Arrangement b. Administered in the native language or shall: mode of communication of the preschool a. Provide screening, through the review of child or child unless it clearly is not feasible incoming records and the use of basic skills to do so. tests in reading, language arts, and mathe- c. Validated for the specific purpose for matics, to determine whether a preschool which they are used or intended to be used. child or child may be in need of special edu- d. Administered by qualified personnel, cation and related services. such as a special educator, school psycholo- b. Analyze school health data for those gist, speech therapist, or a reading special- preschool children and children who dem- ist, in conformity with the instructions pro- onstrate possible disabling conditions. Such vided by the producers of the testing device. data shall include: e. Administered in a manner so that no (1) Results of formal hearing, vision, single procedure is the sole criterion for de- speech, and language tests. termining eligibility and an appropriate edu- (2) Reports from medical practitioners. cational program for a disabled preschool (3) Reports from other appropriate profes- child or child. sional health personnel as may be necessary, f. selected to assess specific areas of edu- under this part, to aid in identifying possible cational strengths and needs, not merely to disabling conditions. provide a single general intelligence c. Analyze other pertinent information, in- quotient. cluding suspensions, exclusions, other dis- 3. The evaluation shall be conducted by a ciplinary actions, and withdrawals, compiled multidisciplinary team and shall include a and maintained by Section 6 School Arrange- teacher or other specialist with knowledge in ments that may aid in identifying possible the areas of the suspected disability. disabling conditions. 4. The preschool child or child shall be 3. Each Section 6 School Arrangement, in evaluated in all areas related to the sus- cooperation with cognizant authorities at pected disability. When necessary, the eval- the installation on which the Section 6 uation shall include: School Arrangement is located, shall con- a. The current level of academic function- duct ongoing child-find activities that are ing, to include general intelligence. designed to identify all infants, toddlers, pre- b. Visual and auditory acuity. school children, and children with possible c. Social and emotional status, to include disabling conditions who reside on the in- social functioning within the educational en- stallation or who otherwise either are enti- vironment and within the family. tled, or will be entitled, to receive services d. Current physical status, including per- under this part. ceptual and motor abilities. a. If an element of the Section 6 School Ar- e. Vocational transitional assessment (for rangement, a qualified professional author- children ages 14–21 years (inclusive)). ized to provide related services, a parent, or 5. The appropriate CSC shall met as soon other individual believes that an infant, tod- as possible after the preschool child’s or dler, preschool child or child has a possible child’s formal evaluation to determine disabling condition, that individual shall be whether he or she is in need of special edu- referred to the appropriate CSC or early cation and related services. The preschool intervention coordinator. child’s or child’s parents shall be invited to b. A Section 6 School Arrangement CSC the meeting and afforded the opportunity to shall work in cooperation with the Military participate in such a meeting. Departments in identifying infants, toddlers, 6. The school CSC shall issue a written re- preschool children and children with disabil- port that contains: ities (birth to 21 years inclusive). a. A review of the formal and informal diagnostic evaluation findings of the multi- B. Evaluation Procedures disciplinary team. 1. Each CSC will provide a full and com- b. A summary of information from the par- prehensive diagnostic evaluation of special ents, the preschool child or child, or other educational, and related service needs to any persons having significant previous contact preschool child or child who is receiving, or with the preschool child or child. entitled to receive, educational instruction c. A description of the preschool child’s or from a Section 6 School Arrangement, oper- child’s current academic progress, including ated by the Department of Defense under Di- a statement of his or her learning style. rective 1342.21, and who is referred to a CSC d. A description of the nature and severity for a possible disability. The evaluation will of the preschool child’s or child’s disabil- be conducted before any action is taken on ity(ies). the development of the IEP or placement in 7. A preschool child or child with a disabil- a special education program. ity shall receive an individual comprehen- 2. Assessment materials, evaluation proce- sive diagnostic evaluation every 3 years, or dures, and tests shall be: more frequently if conditions warrant, or if a. Racially and culturally nondiscrim- the preschool child’s or child’s parent, teach- inatory. er, or related service provider requests an

351 Pt. 80, App. B 32 CFR Ch. I (7–1–97 Edition) evaluation. The scope and nature of the re- disability, enrolled by a CSC in a separate evaluation shall be determined individually, facility, receives appropriate, physical edu- based upon the preschool child’s or child’s cation in compliance with this part. performance, behavior, and needs when the 6. The IEP for each preschool child or child reevaluation is conducted, and be used to up- with a disability shall be developed and re- date or revise the IEP. viewed at least annually in meetings that include the following participants: C. Individualized Education Program (IEP) a. The designated representative of the 1. Section 6 School Arrangements shall en- Section 6 School Arrangement, who is quali- sure that an IEP is developed and imple- fied to supervise the provision of special edu- mented for each preschool child or child with cation. Such representative may not be the a disability enrolled in a Section 6 School preschool child’s or child’s special education Arrangement or placed on another institu- teacher. tion by a Section 6 School Arrangement CSC b. One, or more, of the preschool child’s or under this part. child’s regular education teachers, if appro- 2. Each IEP shall include: priate. a. A statement of the preschool child’s or c. The preschool child’s or child’s special child’s present levels of educational perform- education teacher or teachers. ance. d. One, or both, of the preschool child’s or b. A statement of annual goals, including child’s parents. short-term instructional objectives. e. The child, if appropriate. c. A statement of the specific special edu- f. For a preschool child or child with a dis- cational services and related services to be ability who has been evaluated, a member of provided to the preschool child or child (in- the evaluation team or another person cluding the frequency, number of times per knowledgeable about the evaluation proce- week/month and intensity, amount of times dures used with that student and familiar each day) and the extent to which the pre- with the results of the evaluation. school child or child may be able to partici- g. Other individuals, at the reasonable dis- pate in regular educational programs. cretion of the parent(s) or the school. d. The projected anticipated date for the 7. Section 6 School Arrangements shall: initiation and the anticipated length of such 2a. Ensure that an IEP meeting is held, activities and services. normally within 10 working days, following a e. Appropriate objective criteria and eval- determination by the appropriate CSC that uation procedures and schedules for deter- the preschool child or child is eligible to re- mining, on an annual basis, whether edu- ceive special education and/or related serv- cational goals and objectives are being ices. achieved. b. Address the needs of a preschool child or f. A statement of the needed transition child with a current IEP who transfers from services for the child beginning no later than a school operated by the DoD in accordance age 16 and annually thereafter (and when de- with 32 CFR part 1 or from a Section 6 School termined appropriate for the child, begin- Arrangement to a Section 6 School Arrange- ning at age 14 or younger) including, when ment, by: appropriate, a statement of DoD Component (1)Implementing the current IEP; or responsibilities before the child leaves the (2) Revising the current IEP with the con- school setting. sent of a parent; or 3. Each preschool child or child with a dis- (3) Initiating, with the consent of a parent, ability shall be provided the opportunity to an evaluation of the preschool child or child, participate, with adaptations when appro- while continuing to provide appropriate priate, in the regular physical education pro- services through a current IEP; or gram available to students without disabil- (4) Initiating, with the consent of the par- ities unless: ent, an evaluation of the preschool child or a. The preschool child or child with a dis- child without the provision of the services in ability is enrolled full-time in a separate fa- the current IEP; or cility; or (5) Initiating mediation, and if necessary, b. The preschool child or child with a dis- due process procedures. ability needs specially designed physical c. Afford the preschool child’s or child’s education, as prescribed in his or her IEP. parent(s) the opportunity to participate in 4. If specially designed physical education every IEP or CSC meeting about their pre- services are prescribed in the IEP of a preschool child or child by: school child or child with a disability, the (1) Providing the parent(s) adequate writ- Section 6 School Arrangement shall provide ten notice of the purpose, time, and place of such education directly, or shall make ar- the meeting. rangements for the services to be provided through a non-Section 6 School Arrangement 1 Copies of DoD Directive 1342.6 may be ob- or another facility. tained, at cost, from the National Technical 5. Section 6 School Arrangements shall en- Information Service, 5285 Port Royal Road, sure that a preschool child or child with a Springfield, VA 22161.

352 Office of the Secretary of Defense Pt. 80, App. B

(2) Attempting to schedule the meeting at 5. Each educational placement for a pre- a mutually agreeable time and place. school child or child with a disability shall 8. If neither parent can attend the meeting, be: other methods to promote participation by a a. Determined at least annually by the apparent, such as telephone conservations and propriate CSC. letters, shall be used. b. Based on the preschool child or child’s 9. A meeting may be conducted without a IEP. parent in attendance if the Section 6 School c. Located as close as possible to the resi- Arrangement is unable to secure the attend- dence of the parent who is sponsoring the ance of the parent. In this case, the Section preschool child or child for attendance in a 6 School Arrangement must have written Section 6 School Arrangement. records of its attempts to arrange a mutu- d. Designed to assign the preschool child or ally acceptable time and place. child to the school such student would at- 10. If the parent(s) attends the IEP meet- tend if he or she were not a student with a ing, the Section 6 School Arrangement shall disability, unless the IEP requires some take necessary action to ensure that at least other arrangement. one of the parents understands the proceed- e. Predicated on the consideration of all ings at the meeting, including providing an factors affecting the preschool child’s or interpreter for a parent who is deaf or whose child’s well-being, including the effects of native language is other than English. separation from parent(s). 11. The section 6 School Arrangement shall f. To the maximum extent appropriate, de- give a parent a copy of the preschool child’s signed so that the preschool child or child IEP. participates in school activities, including 12. Section 6 School Arrangements shall meals and recess periods, with students who provide special education and related serv- do not have a disability. ices, in accordance with an IEP, provided that the Department of Defense, its constitu- E. Children With Disabilities Placed in Non- ent elements, and its personnel, are not ac- Section 6 School Arrangements countable if a preschool child or child does not achieve the growth projected in the IEP. 1. Before a Section 6 School Arrangement 13. Section 6 School Arrangements shall CSC, with the concurrence of the Section 6 ensure that an IEP is developed and imple- School Arrangement Superintendent con- mented for each preschool child or child with cerned, places a preschool child or child with a disability whom the CSC places in a non- a disability in a non-Section 6 School or fa- Section 6 School or other facility. cility, the Section 6 School CSC shall conduct a meeting in accordance with this part D. Placement Procedures and Least Restrictive to initiate the development of an IEP for Environment such student. 1. The placement of a preschool child or 2. Preschool children and children with dis- child in any special education program by abilities eligible to receive instruction in the Section 6 School Arrangement shall be Section 6 School Arrangements who are re- made only under an IEP and after a deter- ferred to another school or facility by the mination has been made that such student Section 6 School CSC have all the rights of has a disability and needs special education students with disabilities who are attending and/or related services. the Section 6 School Arrangement. 2. The Section 6 School Arrangement CSC a. If a Section 6 School Arrangement CSC shall identify the special education and replaces a preschool child or child with a dis- lated services to be provided under the IEP. ability in a non-Section 6 School Arrange- 3. A placement decision may not be implement or facility as a means of providing spe- mented without the consent of a parent of cial education and related services, the pro- the preschool child or child, except as other- gram of that facility, including nonmedical wise provided in accordance with this part. care, room, and board, as set forth in the stu- 4. The placement decision must be designed dent’s IEP, must be at no cost to the student to educate a preschool child or child with a or the student’s parents. disability in the least restrictive environ- b. A Section 6 School Arrangement CSC ment so that such student is educated to the may place a preschool child or child with a maximum extent appropriate with students disability in a non-Section 6 School Arrange- who do not have disabilities. Special classes, ment or facility only if required by an IEP. separate schooling, or other removal of pre- An IEP for a student placed in a non-Section school children or children with disabilities 6 School is not valid until signed by the Sec- from the regular educational environment tion 6 School Arrangement Superintendent, shall occur only when the nature or severity or designee, who must have participated in of the disability is such that the preschool the IEP meeting. The IEP shall include de- child or child with disabilities cannot be terminations that: educated satisfactorily in the regular classes (1) The Section 6 School Arrangement does with the use of supplementary aids and serv- not currently have, and cannot reasonably ices, including related services. create, an educational program appropriate

353 Pt. 80, App. B 32 CFR Ch. I (7–1–97 Edition) to meet the needs of the student with a dis- (2) Be conducted, when possible, within the ability. area where the preschool child or child re- (2) The non-Section 6 School Arrangement sides. or facility and its educational program con- (3) Meet applicable DoD standards govern- form to this part. ing persons qualified to conduct an evalua- 3. A Section 6 School Arrangement is not tion. responsible for the cost of a non-Section 6 b. If the final decision rendered in an im- School Arrangement placement when place- partial due process hearing sustains the eval- ment is made unilaterally, without the ap- uation of the Section 6 School Arrangement proval of the cognizant CSC and the Super- CSC, the parent has the right to an inde- intendent, unless it is directed by a hearing pendent evaluation, but not at the expense of officer under appendix C of this part or a the Department of Defense or any DoD Com- court of competent jurisdiction. ponent. 5. The parents of a preschool child or child F. Procedural Safeguards with a disability shall be afforded an oppor- 1. Parents shall be given written notice be- tunity to inspect and review all relevant fore the Section 6 School Arrangement CSC educational records concerning the identi- proposes to initiate or change, or refuses to fication, evaluation, and educational place- initiate or change, either the identification, ment of such student, and the provision of a evaluation, or educational placement of a free appropriate public education to him or preschool child or child receiving, or entitled her. to receive, special education and related 6. Upon complaint presented in a written services from a Section 6 School Arrange- petition, the parent of a preschool child or ment, or the provision of a free appropriate child with a disability or the Section 6 public education by the Section 6 School Ar- School System shall have the opportunity rangement to the child. The notice shall for an impartial due process hearing pro- fully inform a parent of the procedural vided by the Department of Defense as pre- rights conferred by this part and shall be scribed by appendix C of this part. given in the parent’s native language, unless 7. During the pendency of any impartial it clearly is not feasible to do so. due process hearing or judicial proceeding on 2. The consent of a parent of a preschool the identification, evaluation, or educational child or child with a disability or suspected placement of a preschool child or child with of having a disability shall be obtained be- a disability receiving an education from a fore any: Section 6 School Arrangement or the provi- a. Initiation of formal evaluation proce- sion of a free appropriate public education to dures; such a student, unless the Section 6 School b. Initial special educational placement; or Arrangement and a parent of the student c. Change in educational placement. agree otherwise, the student shall remain in 3. If a parent refuses consent to any formal his or her present educational placement, evaluation or initial placement in a special subject to the disciplinary procedures pre- education program, the Section 6 School Ar- scribed in this part. rangement Superintendent may initiate an 8. If a preschool child or child with a dis- impartial due process hearing, as provided in ability, without a current IEP, who is enti- appendix C of this part to show why an eval- tled to receive educational instruction from uation or placement in a special education a Section 6 School Arrangement is applying program should occur without such consent. for initial admission to a Section 6 School If the hearing officer sustains the Section 6 Arrangement, that student shall enter that School Arrangement CSC position in the im- Arrangement on the same basis as a student partial due process hearing, the appropriate without a disability. CSC may evaluate or provide special education and related services to the preschool 9. The parent of a preschool child or child child or child without the consent of a par- with a disability or a Section 6 School Ar- ent, subject to the parent’s due process rangement employee may file a written com- rights. munication with the Section 6 School Ar- 4. A parent is entitled to an independent rangement Superintendent about possible evaluation of his or her preschool child or general violations of this part or Pub. L. 101– child at the Section 6 School Arrangement’s 476, as amended. Such communications will expense, if the parent disagrees with the not be treated as complaints under appendix findings of an evaluation of the student con- C of this part. ducted by the school and the parent success- G. Disciplinary Procedures fully challenges the evaluation in an impartial due process hearing. 1. All regular disciplinary rules and proce- a. If an independent evaluation is provided dures applicable to students receiving edu- at the expense of a Section 6 School Arrange- cational instruction in the Section 6 School ment, it must meet the following criteria: Arrangements shall apply to preschool chil- (1) Conform to the requirements of this dren and children with disabilities who vio- part. late school rules and regulations or disrupt

354 Office of the Secretary of Defense Pt. 80, App. C regular classroom activities, subject to the APPENDIX C TO PART 80—HEARING provisions of this section. PROCEDURES 2. The appropriate CSC shall determine whether the conduct of a preschool child or A. Purpose child with a disability is the result of that This appendix establishes adjudicative re- disability before the long-term suspension quirements whereby the parents of infants, (10 consecutive or cumulative days during toddlers, preschool children, and children the school year) or the expulsion of that stu- who are covered by this part and, as the case dent. may be, the cognizant Military Department 3. If the CSC determines that the conduct or Section 6 School System are afforded im- of such a preschool child or child with a dis- partial due process hearings and administra- ability results in whole or part from his or tive appeals on the early intervention serv- her disability, that student may not be sub- ices or identification, evaluation, and edu- ject to any regular disciplinary rules and cational placement of, and the free appropriate public education provided to, such procedures; and children by the Department of Defense, in a. The student’s parent shall be notified in accordance with Pub. L. 101–476, as amended, accordance with this part of the right to 20 U.S.C. sec. 1401 et seq.; Pub. L. 81–874, sec. have an IEP meeting before any change in 6, as amended, 20 U.S.C. sec. 241; Pub. L. 97– the student’s special education placement. 35, sec. 505(c), 20 U.S.C. sec. 241 note; and (A termination of the student’s education for Pub. L. 102–119, sec. 23, 20 U.S.C. sec. 241(a). more than 10 days, either cumulative or consecutive, constitutes a change of placement.) B. Administration b. The Section 6 School Arrangement CSC 1. The Directorate for the Defense Office of or another authorized school official shall Hearings and Appeals (DOHA) shall have ad- ensure that an IEP meeting is held to deter- ministrative responsibility for the proceed- mine the appropriate educational placement ings authorized by this appendix. for the student in consideration of his or her 2. This appendix shall be administered to conduct before the tenth cumulative day of ensure that the findings, judgments, and de- the student’s suspension or an expulsion. terminations made are prompt, fair, and im- 4. A preschool child or child with a disabil- partial. ity shall neither be suspended for more than 3. Impartial hearing officers, who shall be DOHA Administrative Judges, shall be ap- 10 days nor expelled, and his or her edu- pointed by the Director, DOHA, and shall be cational placement shall not otherwise be attorneys who are independent of the Sec- changed for disciplinary reasons, unless in tion 6 School System or the Military Depart- accordance with this section, except that: ment concerned in proceedings conducted a. This section shall be applicable only to under this appendix. A parent shall have the preschool children and children determined right to be represented in such proceedings, to have a disability under this part. at no cost to the government, by counsel and b. Nothing contained herein shall prevent by persons with special knowledge or train- the emergency suspension of any preschool ing with respect to the problems of individ- child or child with a disability who endan- uals with disabilities. DOHA Department gers or reasonable appears to endanger the Counsel normally shall appear and represent health, welfare, or safety of himself or her- the Section 6 School System in proceedings self, or any other student, teacher, or school conducted under this appendix, when such personnel, provided that: proceedings involve a preschool child or (1) The appropriate Section 6 School Ar- child. When an infant or toddler is involved, rangement CSC shall immediately meet to the Military Department responsible under determine whether the preschool child’s or this part for delivering early intervention services shall either provide its own counsel child’s conduct results from his or her dis- or request counsel from DOHA. ability and what change in special education placement is appropriate for that student. C. Mediation (2) The child’s parent(s) shall be notified 1. Mediation can be initiated by either a immediately of the student’s suspension and parent or, as appropriate, the Military De- of the time, purpose, and location of the CSC partment concerned or the Section 6 School meeting and their right to attend the meet- System to resolve informally a disagreement ing. on the early intervention services for an in- (3) A component is included in the IEP fant or toddler or the identification, evalua- that addresses the behavioral needs of the tion, educational placement of, or the free student. appropriate public education provided to, a (4) The suspension of the student is only ef- preschool child or child. The cognizant Mili- fective for the duration of the emergency. tary Department, rather than the Section 6

355 Pt. 80, App. C 32 CFR Ch. I (7–1–97 Edition)

School System, shall participate in medi- swer shall be as full and complete as pos- ation involving early intervention services. sible, addressing the issues, facts, and pro- Mediation shall consist of, but not be limited posed relief. The submission of the answer is to, an informal discussion of the differences complete upon mailing. between the parties in an effort to resolve d. Within 10 calendar days after receiving those differences. The parents and the appro- the petition, the Director, DOHA, shall as- priate school or Military Department offi- sign a hearing officer, who then shall have cials may attend mediation sessions. jurisdiction over the resulting proceedings. 2. Mediation must be conducted, at- The Director, DOHA, shall forward all plead- tempted, or refused in writing by a parent of ings to the hearing officer. the infant, toddler, preschool child or child e. The questions for adjudication shall be whose early intervention or special edu- based on the petition and the answer, pro- cation services (including related services) vided that a party may amend a pleading if are at issue before a request for, or initiation the amendment is filed with the hearing offi- of, a hearing authorized by this appendix. cer and is received by the other parties at Any request by the Section 6 School System or Military Department for a hearing under least 5 calendar days before the hearing. this appendix shall state how this require- f. The Director, DOHA, shall arrange for ment has been satisfied. No stigma may be the time and place of the hearing, and shall attached to the refusal of a parent to medi- provide administrative support. Such ar- ate or to an unsuccessful attempt to medi- rangements shall be reasonably convenient ate. to the parties. g. The purpose of a hearing is to establish D. Practice and Procedure the relevant facts necessary for the hearing officer to reach a fair and impartial deter- 1. Hearing mination of the case. Oral and documentary a. Should mediation be refused or other- evidence that is relevant and material may wise fail to resolve the issues on the provi- be received. The technical rules of evidence sion of early intervention services or a free, shall be relaxed to permit the development appropriate public education to a disabled of a full evidentiary record, with the Federal infant, toddler, preschool child or child or Rules of Evidence (28 U.S.C.) serving as a the identification, evaluation, or educational guide. placement of such an individual, the parent h. The hearing officer shall be the presid- or either the school principal, on behalf of ing officer, with judicial powers to manage the Section 6 School System, or the military the proceeding and conduct the hearing. medical treatment facility commander, on Those powers shall include the authority to behalf of the Military Department having ju- order an independent evaluation of the child risdiction over the infant or toddler, may re- at the expense of the Section 6 School Sys- quest and shall receive a hearing before a tem or Military Department concerned and hearing officer to resolve the matter. The to call and question witnesses. parents of an infant, toddler, preschool child i. Those normally authorized to attend a or child and the Section 6 School System or Military Department concerned shall be the hearing shall be the parents of the individual only parties to a hearing conducted under with disabilities, the counsel and personal this appendix. representative of the parents, the counsel b. The party seeking the hearing shall sub- and professional employees of the Section 6 mit a written request, in the form of a peti- School System or Military Department con- tion, setting forth the facts, issues, and pro- cerned, the hearing officer, and a person posed relief, to the Director, DOHA. The pe- qualified to transcribe or record the proceed- titioner shall deliver a copy of the petition ings. The hearing officer may permit other to the opposing party (that is, the parent or persons to attend the hearing, consistent the school principal, on behalf of the Section with the privacy interests of the parents and 6 School System, or the military medical the individual with disabilities, provided the treatment facility commander, on behalf of parents have the right to an open hearing the Military Department), either in person upon waiving in writing their privacy rights or by first-class mail, postage prepaid. Deliv- and those of the individual with disabilities. ery is complete upon mailing. When the Sec- j. A verbatim transcription of the hearing tion 6 School System or Military Depart- shall be made in written or electronic form ment petitions for a hearing, it shall inform and shall become a permanent part of the the other parties of the deadline for filing an record. A copy of the written transcript or answer under paragraph D.1.c. of this appen- electronic record of the hearing shall be dix, and shall provide the other parties with made available to a parent upon request and a copy of this part. without cost. The hearing officer may allow c. An opposing party shall submit an an- corrections to the written transcript or elec- swer to the petition to the Director, DOHA, tronic recording for the purpose of conform- with a copy to the petitioner, within 15 cal- ing it to actual testimony after adequate no- endar days of receipt of the petition. The an- tice of such changes is given to all parties.

356 Office of the Secretary of Defense Pt. 80, App. C

k. The hearing officer’s decision of the case d. When the hearing officer determines shall be based on the record, which shall in- that a person has failed to obey an order to clude the petition, the answer, the written testify or to produce evidence, and such fail- transcript or the electronic recording of the ure is in knowing and willful disregard of the hearing, exhibits admitted into evidence, order, the hearing officer shall so certify. pleadings or correspondence properly filed e. The party or the hearing officer seeking and served on all parties, and such other to compel testimony or the production of matters as the hearing officer may include in evidence may, upon the certification pro- the record, provided that such matter is vided for in paragraph D.3.d. of the section, made available to all parties before the file an appropriate action in a court of com- record is closed under paragraph D.1.m. of petent jurisdiction to compel compliance this appendix. with the hearing officer’s order. l. The hearing officer shall make a full and complete record of a case presented for adju- 4. Hearing Officer’s Findings of Fact and dication. Decision m. The hearing officer shall decide when a. The hearing officer shall make written the record in a case is closed. findings of fact and shall issue a decision set- n. The hearing officer shall issue findings ting forth the questions presented, the reso- of fact and render a decision in a case not lution of those questions, and the rationale later than 50 calendar days after being as- for the resolution. The hearing officer shall signed to the case, unless a discovery request file the findings of fact and decision with the under section D.2. of this appendix is pend- Director, DOHA, with a copy to the parties. ing. b. The Director, DOHA, shall forward to the Director, Section 6 Schools or the Mili- 2. Discovery tary Department concerned and the Domes- a. Full and complete discovery shall be tic Advisory Panel copies, with all person- available to parties to the proceeding, with ally identifiable information deleted, of the the Federal Rules of Civil Procedure (28 hearing officer’s findings of fact and decision U.S.C.) serving as a guide. or, in cases that are administratively ap- b. If voluntary discovery cannot be accom- pealed, of the final decision of the DOHA Ap- plished, a party seeking discovery may file a peal Board. motion to accomplish discovery, provided c. The hearing officer shall have the au- such motion is founded on the relevance and thority to impose financial responsibility for materiality of the proposed discovery to the early intervention services, educational issues. An order granting discovery shall be placements, evaluations, and related services enforceable as is an order compelling testi- under his or her findings of fact and decision. mony or the production of evidence. d. The findings of fact and decision of the c. A copy of the written or electronic tran- hearing officer shall become final unless a scription of a deposition taken by the Sec- notice of appeal is filed under section F.1. of tion 6 School System or Military Depart- this appendix. The Section 6 School System ment concerned shall be made available free or Military Department concerned shall im- of charge to a parent. plement a decision as soon as practicable after it becomes final. 3. Witnesses; Production of Evidence E. Determination Without Hearing a. All witnesses testifying at the hearing shall be advised that it is a criminal offense 1. At the request of a parent of the infant, knowingly and willfully to make a false toddler, preschool child or child when early statement or representation to a Depart- intervention or special educational (includ- ment or Agency of the United States Govern- ing related) services are at issue, the requirement as to any matter within the jurisdic- ment for a hearing may be waived, and the tion of the Department or Agency. All wit- case may be submitted to the hearing officer nesses shall be subject to cross-examination on written documents filed by the parties. by the parties. The hearing officer shall make findings of b. A party calling a witness shall bear the fact and issue a decision within the period witness’ travel and incidental expenses asso- fixed by paragraph D.1.n. of this appendix. ciated with testifying at the hearing. The 2. The Section 6 School System or Military Section 6 School System or Military Depart- Department concerned may oppose a request ment concerned shall pay such expenses to waive the hearing. In that event, the hear- when a witness is called by the hearing offi- ing officer shall rule on the request. cer. 3. Documents submitted to the hearing of- c. The hearing officer may issue an order ficer in a case determined without a hearing compelling the attendance of witnesses or shall comply with paragraph D.1.g. of this the production of evidence upon the hearing appendix. A party submitting such docu- officer’s own motion or, if good cause be ments shall provide copies to all other par- shown, upon motion of a party. ties.

357 § 81.1 32 CFR Ch. I (7–1–97 Edition)

F. Appeal PART 81—PATERNITY CLAIMS AND 1. A party may appeal the hearing officer’s ADOPTION PROCEEDINGS IN- findings of fact and decision by filing a writ- VOLVING MEMBERS AND ten notice of appeal with the Director, FORMER MEMBERS OF THE DOHA, within 5 calendar days of receipt of the findings of fact and decision. The notice ARMED FORCES of appeal must contain the appellant’s certification that a copy of the notice of appeal Sec. has been provided to all other parties. Filing 81.1 Reissuance and purpose. is complete upon mailing. 81.2 Applicability. 81.3 Policy. 2. Within 10 calendar days of the filing the notice of appeal, the appellant shall submit a AUTHORITY: Sec. 301, 80 Stat. 379; (5 U.S.C. written statement of issues and arguments 301). to the Director, DOHA, with a copy to the SOURCE: 43 FR 15149, Apr. 11, 1978, unless other parties. The other parties shall submit otherwise noted. a reply or replies to the Director, DOHA, within 15 calendar days of receiving the § 81.1 Reissuance and purpose. statement, and shall deliver a copy of each reply to the appellant. Submission is com- This part reissued DoD Directive plete upon mailing. 1344.3, ‘‘Paternity Claims and Adoption 3. The Director, DOHA, shall refer the mat- Proceedings Involving Members and ter on appeal to the DOHA Appeal Board. It Former Members of the Armed shall determine the matter, including the Forces,’’ to standardize procedures for making of interlocutory rulings, within 60 the handling of: calendar days of receiving timely submitted (a) Paternity claims against mem- replies under section F.2. of this appendix. bers and former members of the Armed The DOHA Appeal Board may require oral Forces, and argument at a time and place reasonable (b) Requests from civilian courts con- convenient to the parties. cerning the availability of members 4. The determination of the DOHA Appeal and former members of the Armed Board shall be a final administrative deci- Forces to appear at an adoption hear- sion and shall be in written form. It shall ad- ing where it is alleged that such mem- dress the issues presented and set forth a ra- ber is the father of an illegitimate tionale for the decision reached. A determination denying the appeal of a parent in child. whole or in part shall state that the parent § 81.2 Applicability. has the right under Pub. L. 101–476, as amended, to bring a civil action on the mat- The provisions of this part apply to ters in dispute in a district court of the Unit- the Military Departments. ed States without regard to the amount in controversy. § 81.3 Policy. 5. No provision of this part or other DoD (a) Members on active duty. (1) Allega- guidance may be construed as conferring a tions of paternity against members of further right of administrative review. A the Armed Forces who are on active party must exhaust all administrative rem- duty will be transmitted to the individ- edies afforded by this appendix before seeking judicial review of a determination made ual concerned by the appropriate mili- under this appendix. tary authorities. (2) If there exists a judicial order or G. Publication and Indexing of Final Decisions decree of paternity or child support The Director, DOHA, shall ensure that duly rendered by a United States or final decisions in cases arising under this Ap- foreign court of competent jurisdiction pendix are published and indexed to protect against such a member, the command- the privacy rights of the parents who are ing officer in the appropriate Military parties in those cases and the children of Departments will advise the member of such parents, in accordance with 32 CFR part his moral and legal obligations as well 310. as his legal rights in the matter. See 42

358 Office of the Secretary of Defense § 81.3

U.S.C. 659. The member will be encour- bers under paragraph (c)(2) (i) and (ii) aged to render the necessary financial of this section. support to the child and take any other (c) Former members. (1) In all cases of action considered proper under the cir- allegations of paternity against former cumstances. members of the Armed Forces or com- (3) Communications from a judge of a munication from a judge of a civilian civilian court, including a court sum- court, including a judicial summons or mons or a judical order, concerning the court order, concerning the adoption of availability of personnel to appear at an illegitimate child of former mem- an adoption hearing, where it is alleged bers of the Armed Forces who have that an active duty member is the fa- been separated from the Military Serv- ther of an illegitimate child, shall re- ices, i.e., those members now holding ceive a reply that: no military status whatsoever, the (i) Due to military requirements, the claimant or requester will be (i) in- member cannot be granted leave to at- formed of the date of discharge, and (ii) tend any court hearing until (date), or advised that the individual concerned (ii) A request by the member for is no longer a member of the Armed leave to attend an adoption court hear- Forces in any capacity, and that the ing on (date), if made, would be ap- Military Departments assume no re- proved, or sponsibility for the whereabouts of in- (iii) The member has stated in a dividuals no longer under their juris- sworn written statement (forward a diction. The correspondence and all ac- copy with response) that he is not the companying documentation shall be re- natural parent of the child, or turned to the claimant or requester. (iv) Due to the member’s unavaila- (2) In addition, the last known ad- bility caused by a specific reason, a dress of the former member will be fur- completely responsive answer cannnot be made. nished to the requester: (4) The member should be informed of (i) If the request is supported by a the inquiry and the response and urged certified copy of either: to obtain legal assistance for guidance (A) A judicial order or decree of pa- (including an explanation of sections of ternity or support duly rendered the Soldiers’ and Sailors’ Civil Relief against a former member by a United Act, 50 U.S.C. appendix, section 501 et States or foreign court of competent seq., if appropriate). jurisdiction; or (b) Members not on active duty. (1) Al- (B) A document which establishes legations of paternity against members that the former member has made an of the Armed Forces who are not on ac- official admission or statement active duty shall be forwarded to the in- knowledging paternity or responsibil- dividual concerned in such manner as ity for support of a child before a court to ensure that the allegations are de- of competent jurisdiction, administra- livered to the addressee only. Military tive or executive agency, or official au- channels will be used when practicable. thorized to receive it; or (2) Communications from a judge of a (C) A court summons, judicial order, civilian court, including a court sum- or similar document of a court within mons or judicial order, concerning the the United States in a case concerning availability of personnel to appear at the adoption of an illegitimate child; an adoption hearing, where it is alleged wherein the former serviceman is al- that the member not on active duty is leged to be the father. the father of an illegitimate child shall (ii) If the claimant, with the corrobo- receive a reply that such person is not on active duty. A copy of the commu- ration of a physician’s affidavit, al- nication and the reply will be for- leges and explains an unusual medical warded to the named individual. situation which makes it essential to (3) When requested by a court, the obtain information from the alleged fa- last known address of inactive mem- ther to protect the physical health of bers may be furnished under the same either the prospective mother or the conditions as set forth for former mem- unborn child.

359 § 83.1 32 CFR Ch. I (7–1–97 Edition)

PART 83—STANDARDS OF 450, and SF 278, ‘‘Public Financial Dis- CONDUCT closure Report,’’ January 1991, required of certain present and former DoD em- Sec. ployees; provides ethics training guid- 83.1 Purpose. ance; and sets general responsibilities 83.2 Applicability and scope. and enforcement procedures. 83.3 Definitions. [59 FR 13212, Mar. 21, 1994, as amended at 60 83.4 Policy. FR 20029, Apr. 24, 1995] 83.5 Responsibilities. 83.6 Procedures. § 83.2 Applicability and scope. AUTHORITY: 5 U.S.C. 301, 7301, 7351, 7353; 5 U.S.C. App. (Ethics in Government Act of (a) This part and 32 CFR part 84 apply 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 to the Office of the Secretary of De- Comp., p. 215 as modified by E.O. 12731, 55 FR fense; the Military Departments; the 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR part Chairman of the Joint Chiefs of Staff 2635. and the Joint Staff; the Unified and SOURCE: 59 FR 13212, Mar. 21, 1994, unless Specified Commands; the Office of the otherwise noted. Inspector General of the Department of Defense; the Uniformed Services Uni- § 83.1 Purposes. versity of the Health Sciences; the De- This part: fense Agencies; the DoD Field Activi- (a) Replaces DoD Directive 5120.47 1 ties; the Combined Commands and and implements E.O. 12674, 54 FR 15159, Agencies; and the Special Activities, 3 CFR, 1989 Comp., p. 215; 5 U.S.C. App. including non-appropriated fund in- (Ethics in Government Act of 1978); 5 strumentalities (hereafter referred to U.S.C. 4111; 10 U.S.C. 801–940, 2397, collectively as the ‘‘DoD Compo- 2397a, and 2397b; 18 U.S.C. 203, 205, 207, nents’’). The sections of 32 CFR part 84 208, 209 and 218; 31 U.S.C. 1353; 41 U.S.C. entitled ‘‘Financial and Employment 423; 48 CFR 3.104–6; 5 CFR parts 733, Disclosure,’’ ‘‘Post-Government Serv- 2634, 2635, 2636, 2637, 2638, and 2641. The ice Employment,’’ and ‘‘Seeking Other ‘‘18 U.S.C. 208(b) Waiver’’ section of 32 Employment’’ also apply, as specified, CFR part 40 has been retained at 32 to certain former employees of DoD CFR 40.1 and cross-referenced in Ap- Components in accordance with speci- pendix B of 32 CFR part 84. fied statutes. The section of 32 CFR (b) Cancels DD Form 1357, ‘‘State- part 84 entitled ‘‘Financial and Em- ment of Employment—Regular Retired ployment Disclosure’’ has provisions Officers,’’ March 1987, and DD Form that apply to individuals who are not 1555, ‘‘Confidential Statement of Affili- DoD employees such as detailees and ations and Financial Interests,’’ March nominees to DoD positions. 1987. The Office of Government Ethics’ (1) Although OGE regulations, cross- (OGE) SF 450, ‘‘Confidential Financial referenced in 32 CFR part 84, do not Disclosure Report,’’ July 1992, replaces apply to enlisted members of the De- DD Form 1555. partment of Defense, the provisions of (c) Authorizes the publication of DoD 5 CFR parts 2634, 2635, 2638, and 2641 are 5500.7–R 2 in accordance with DoD determined to be appropriate for en- 5025.1–M 3 which prescribes standards of listed members and are hereby made conduct required of all DoD employees; applicable to enlisted members as if establishes criteria and procedures for the terms ‘‘employee’’ and ‘‘special filing DD Form 1787, ‘‘Report of DoD Government employee,’’ as used in and Defense Related Employment,’’ SF those OGE regulations, include enlisted members to the same extent that mili- 1 Copies of the replaced directive are avail- tary officers are included within the able from the Directives Division, room meaning of those terms. 2A286, Washington Headquarters Services, (2) Certain criminal statutes ref- 1155 Defense Pentagon, Washington, DC erenced in 32 CFR part 84 and 18 U.S.C. 20301–1155. 203, 205, 207, 208, 209, and 218 do not 2 Copies of the publication are available, at cost, from the National Technical Informa- apply to enlisted members; however, tion Service, U.S. Department of Commerce, provisions similar to those of 18 U.S.C. 5285 Port Royal Road, Springfield, VA 22161. 208 and 209 apply to enlisted members. 3 See footnote 2 to § 83.1(c). See § 84.3(a)(1)(i) of 32 CFR part 84.

360 Office of the Secretary of Defense § 83.6

(b) Penalties for violation of the § 83.5 Responsibilities. standards and rules of conduct pre- (a) The General Counsel of the De- scribed in 32 CFR part 84 include the partment of Defense shall: full range of statutory and regulatory (1) Ensure that appropriate updates, sanctions for DoD employees. modifications, additions and deletions (1) The prohibitions and require- are made to 32 CFR part 84. ments printed in 32 CFR part 84 that (2) Have approval authority for DoD are marked as general orders apply to Component documents supplementing all military members without further or implementing 32 CFR part 84. implementation. Violations may result (b) The Heads of the DoD Compo- in prosecution under the Uniform Code nents shall ensure that: of Military Justice (UCMJ) (10 U.S.C. (1) 32 CFR part 84 is followed within 801–940), as well as adverse administra- their DoD Components. tive action and other adverse action (2) No DoD Component documents authorized by the United States Code supplementing or implementing 32 CFR or Federal regulations. part 84 are issued without the approval (2) DoD employees on assignment to of the General Counsel of the Depart- another Executive Agency for more ment of Defense. than 30 days are subject to 5 CFR part (3) The DoD Component DAEO or des- 2635 and the regulations of that agency ignee distributes copies of 32 CFR part that supplement 5 CFR part 2635 and 84 throughout the DoD Component and have been approved by OGE. makes such copies available for review (3) In addition to details within the by DoD employees in the offices of each Federal Government, details of civilian local Ethics Counselor. DoD employees (except temporary or (4) The DoD Component DAEO or des- non-career employees who may not be ignee distributes updates, modifica- so detailed) may be made to State and tions, additions, and deletions for in- local governments, institutions of sertion in copies of 32 CFR part 84 higher education, and certain other throughout the DoD Component. agencies. Civilian DoD employees de- (5) The DoD Component DAEO re- tailed outside the Federal Government solves inconsistencies among the regu- remain subject to 32 CFR part 84. lations of applicable Executive Agen- (4) In matters of ethics and standards cies, as appropriate, for DoD employees of conduct, any inconsistencies among of the DoD Component. applicable regulations shall be resolved (6) The DoD Component representa- by the DoD Component Designated tive to the Ethics Oversight Committee Agency Ethics Official (DAEO). assists in the development and upkeep of 32 CFR part 84, as needed, through § 83.3 Definitions. the operation of that committee as a Terms used in this part are defined in working group. 32 CFR part 84. § 83.6 Procedures. § 83.4 Policy. 32 CFR part 84 shall be a product of a (a) The Department of Defense shall coordinated effort by the General have a single source of standards of Counsel of the Department of Defense ethical conduct and ethics guidance, and the DoD Component DAEOs and including direction in the areas of fi- designees through the Ethics Oversight nancial and employment disclosure Committee. systems, post-employment rules, enforcement, and training embodied in 32 PART 84—JOINT ETHICS CFR part 84. REGULATION (b) A violation of this part and 32 CFR part 84 does not create any right Subpart A—General Information or benefit, substantive or procedural, Sec. enforceable at law by any person 84.1 Purpose. against the United States, its agencies, 84.2 Definitions. its officers or employees, or any other 84.3 General policy. person. 84.4 General responsibilities.

361 § 84.1 32 CFR Ch. I (7–1–97 Edition)

Subpart B—Standards of Ethical Conduct 84.30 Guidance on 18 U.S.C. 207. 84.31 Post-employment counseling and ad- 84.5 Office of Government Ethics regula- vice. tion. 84.32 Restrictions resulting from procure- 84.6 DoD supplement to 5 CFR part 2635. ment activities. 84.7 DoD guidance. 84.33 Restrictions on retired military members. Subpart C—Activities with Non-Federal 84.34 Restrictions on former senior ap- Entities pointees. 84.35 Restrictions on dealing with current 84.8 Office of Government Ethics regula- or former DoD employees. tion. 84.36 Report of DoD and defense related em- 84.9 Official participation in non-Federal ployment (DD form 1787). entities. 84.10 Personal participation in non-Federal Subpart J—Enforcement entities. 84.37 Enforcement of the provisions of the Subpart D—Travel Benefits Joint Ethics Regulation. 84.38 Reporting procedures. 84.11 Acceptance of official travel benefits 84.39 Administrative enforcement proce- in kind or payment for official travel ex- dures. penses. 84.12 DoD guidance. Subpart K—Training 84.13 Procedures and responsibilities. 84.40 Office of Government Ethics regula- Subpart E—Conflict of Interest tion. 84.41 DoD guidance. 84.14 Office of Government Ethics regula- 84.42 Procedures. tion. 84.43 Responsibilities. 84.15 Guidance on 18 U.S.C. 208. 84.16 Other conflict of interest laws. Subpart L—Ethical Conduct Subpart F—Political Activities 84.44 Executive orders. 84.45 Code of ethics for Government service. 84.17 Office of Personnel Management regu- 84.46 DoD human goals. lation. 84.47 Ethical values. 84.18 Political activities of civilian DoD em- 84.48 Ethical decisionmaking. ployees. 84.19 Political activities of military mem- APPENDIX A TO PART 84—DIGEST OF LAWS bers. APPENDIX B TO PART 84—EXCERPTS FROM Subpart G—Financial and Employment DOD PUBLICATIONS Disclosure APPENDIX C TO PART 84—DOD HUMAN GOALS

84.20 Office of Government Ethics regula- AUTHORITY: 5 U.S.C. 301, 7301, 7351, 7353; 5 tion. U.S.C. App. (Ethics in Government Act of 84.21 Public financial disclosure report (SF 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 278). Comp., p. 215 as modified by E.O. 12731, 55 FR 84.22 Confidential financial disclosure re- 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR part port (SF 450). 2635. 84.23 Report of DoD and defense related employment (DD form 1787). SOURCE: 59 FR 13214, Mar. 21, 1994, unless otherwise noted. Subpart H—Seeking Other Employment Subpart A—General Information 84.24 General rules. 84.25 Conflict of interest (18 U.S.C. 208). § 84.1 Purpose. 84.26 Procurement integrity (41 U.S.C. 423(b)). (a) Single source of guidance. This part 84.27 Reporting employment contacts (10 provides a single source of standards of U.S.C. 2397a). ethical conduct and ethics guidance, 84.28 DoD guidance. including direction in the areas of financial and employment disclosure Subpart I—Post-Government Service systems, post-employment rules, en- Employment forcement, and training. 84.29 Office of Government Ethics regula- (b) Disclaimer. A violation of this part tion. does not create any right or benefit,

362 Office of the Secretary of Defense § 84.2 substantive or procedural, enforceable (e) Competing defense contractor. See at law by any person against the U.S., Federal Acquisition Regulation,1 48 its agencies, its officers or employees, CFR 3.104–4(b) or 41 U.S.C. 423(p)(2). or any other person. (f) Conduct of a procurement. See 48 CFR 3.104–4(c) or 41 U.S.C. 423(p)(1). § 84.2 Definitions. (g) DAEO or designee. This phrase refers to the Designated Agency Ethics (a) Administrative officer. The individ- Official, or to the Alternate Designated ual responsible for the administrative Agency Ethics Official, Deputy Des- control of personnel within a unit or ignated Agency Ethics Official, or Eth- office, including assistance with train- ics Counselor who has been delegated ing, travel, or personnel actions for in- specific written authority by the DoD dividuals of the unit or office. component DAEO to perform specific (b) Agency. A DoD component as fol- functions on behalf of the DoD compo- lows: Department of the Army; Depart- nent DAEO. ment of the Navy; Department of the (h) Defense contractor. For purposes of Air Force; Defense Commissary Agen- 10 U.S.C. 2397, 2397a, and 2397b, any in- cy; Defense Contract Audit Agency; dividual, firm, corporation, partner- Defense Finance and Accounting Serv- ship, association, or other legal non- ice; Defense Intelligence Agency; De- Federal entity that enters into a con- fense Investigative Service; Defense tract directly with DoD or a DoD com- Logistics Agency; Defense Mapping ponent to furnish services, supplies, or Agency; Defense Nuclear Agency; De- both, including construction. Sub- contractors are excluded unless they fense Information Systems Agency; Na- are separate legal non-Federal entities tional Security Agency; Office of the that contract directly with DoD or a Inspector General of the Department of DoD component in their own names. Defense (IG, DoD); and the Uniformed Foreign governments or representa- Services University of the Health tives of foreign governments that are Sciences. Employees of DoD compo- engaged in selling to DoD or a DoD nents not designated as separate agen- component are defense contractors cies, including employees of the Office when acting in that context. of the Secretary of Defense (OSD), (i) Deputy Designated Agency Ethics shall be treated as employees of DoD Official (Deputy DAEO). An employee of which shall be treated as a separate a DoD agency who has been appointed, agency. in writing, by the DoD component (c) Agency designee. The first super- DAEO and who has been delegated visor who is a commissioned military written authority by that DoD compo- officer or a civilian above GS/GM–11 in nent DAEO to act on his behalf. the chain of command or supervision of (j) Designated Agency Ethics Official the DoD employee concerned. Except in (DAEO). A DoD employee appointed, in writing, by the Head of the DoD agency remote locations, the agency designee to administer the provisions of the may act only after consultation with Ethics in Government Act of 1978, Pub- his local Ethics Counselor. For any lic Law 95–521 (5 U.S.C. App.), and this military officer in grade 0–7 or above part. who is in command and any civilian (k) DoD component. OSD; the Military Presidential appointee confirmed by Departments; the Chairman of the the Senate, the agency designee is his Joint Chiefs of Staff and the Joint Ethics Counselor. Staff; the Unified and Specified Com- (d) Alternate Designated Agency Ethics mands; IG, DoD; the Uniformed Serv- Official (Alternate DAEO). An employee ices University of the Health Sciences; of a DoD agency who has been appointed by the DoD component Head to 1 For purchase of this Department of De- serve in the absence of the DoD compo- fense document contact Superintendent of nent Designated Agency Ethics Official Documents, Congressional Sales Office, U.S. (DAEO). Government Printing Office, Washington, DC 20402.

363 § 84.2 32 CFR Ch. I (7–1–97 Edition) the Defense Agencies; the DoD Field employee appointed as an Ethics Coun- Activities; the Combined Commands selor shall only serve as a ‘‘DAEO or and Agencies; and the Special Activi- designee’’ when he has been delegated ties, including non-appropriated fund specific written authority by the DoD instrumentalities. See paragraph (b) of component DAEO to perform specific this section for those DoD components functions on behalf of the DoD compo- that are agencies. nent DAEO. Except for a DoD compo- (l) DoD employee. (1) Any DoD civilian nent DAEO, Alternate DAEO, or Dep- officer or employee (including special uty DAEO, a DoD employee appointed Government employees) of any DoD as an Ethics Counselor shall be an at- component (including any non-appro- torney. Legal assistance officers (or priated fund activity). equivalent) who also serve as Ethics (2) Any active duty regular or reserve Counselors must clearly separate these military officer, including warrant offi- roles. Communications received in an cers. Ethics Counselor capacity are not pro- (3) Any active duty enlisted member tected by the attorney-client privilege of the Army, Navy, Air Force, or Ma- while communications received in a rine Corps. (4) Any reserve or National Guard legal assistance capacity may be. At- member on active duty under orders is- torneys who serve as Ethics Counselors sued pursuant to title 10, United States must advise individuals being coun- Code. seled as to the status of that privilege (5) Any reserve or National Guard prior to any communications. The member performing official duties, in- term ‘‘Ethics Counselor’’ includes cluding while on inactive duty for ‘‘agency ethics official’’ as used by the training or while earning retirement Office of Government Ethics (OGE). points, pursuant to title 10, United See 5 CFR 2635.102.(c). States Code, or while engaged in any (p) Ethics Oversight Committee (EOC). activity related to the performance of A working group composed of the DoD a Federal duty or function. component DAEO, or their representa- (6) Any faculty member in a civil tives, and representatives of the Chair- service position or hired pursuant to man of the Joint Chiefs of Staff, and title 10, United States Code, and any the Judge Advocates General of the student (including a cadet or mid- Military Departments. shipman) of an academy, college, uni- (q) Former DoD employee. Any individ- versity, or school of DoD. ual defined in § 84.2(l), after termi- (7) Consistent with labor agreements nation of active duty or termination of and international treaties and agree- DoD service, including reserve military ments, and host country laws, any for- officers who served on active duty for eign national working for a DoD com- more than 130 days and who are no ponent except those hired pursuant to longer on active duty, or who are in an a defense contract. inactive or retired status. (m) DoD supplement. Section 84.6 con- (r) Gratuity. Gifts as defined in 5 CFR tains the cross-reference to the DoD 2635.203(b). Supplement of 5 CFR part 2635. (n) Employment. See 5 CFR 2635.603(a). (s) He, his, him, himself. These pro- (o) Ethics Counselor. The DoD compo- nouns include she, hers, her and her- nent DAEO, Alternate DAEO, Deputy self. DAEO, or a DoD employee appointed in (t) Head of DoD component command or writing by the DoD component DAEO organization. A commander, command- or designee to generally assist in im- ing officer, or other military or civil- plementing and administering the DoD ian DoD employee who exercises com- component command’s or organiza- mand authority within a DoD compo- tion’s ethics program and to provide nent. ethics advice to DoD employees of the (u) Major defense contractor. Any non- DoD component command or organiza- Federal entity which, during the pre- tion in accordance with this part. Ex- ceding fiscal year, received defense cept for a DoD component DAEO, Al- contracts in a total amount equal to or ternate DAEO, or Deputy DAEO, a DoD greater than $10 million.

364 Office of the Secretary of Defense § 84.2

(v) Major defense system. For purposes the Freedom of Information Act, 5 of 10 U.S.C. 2397b, a combination of ele- U.S.C. 552. The term ‘‘non-public infor- ments that will function together to mation’’ includes ‘‘inside information,’’ produce the capability required to ful- ‘‘proprietary information,’’ and fill a mission need. Elements may in- ‘‘source selection information.’’ See 5 clude hardware, equipment, software, CFR 2635.703, 32 CFR part 285, and 48 or any combination thereof, but ex- CFR 3.104–4(j) and (k) and 3.104–5. cludes construction or other improve- (aa) Office of Government Ethics. The ments to real property. A list is pub- Federal Government agency respon- lished in the FEDERAL REGISTER. See 10 sible for overall direction and leader- U.S.C. 2302. A system shall be consid- ship concerning Executive Branch poli- ered a major defense system if: cies related to ethics in the Federal (1) DoD is responsible for the system Government. See 5 CFR part 2638. and the total expenditures, for re- (bb) Personal and substantial. See 5 search, development, test, and evalua- CFR 2635.402(b)(4). tion for the system, are estimated to (cc) Personal commercial solicitation. exceed $75 million (based on fiscal year Any effort to contact an individual to 1980 constant dollars) or the eventual conduct or transact matters involving total expenditure for procurement ex- unofficial business, finance, or com- ceeds $300 million (based on fiscal year merce. This does not include off-duty 1980 constant dollars); or employment of DoD employees em- (2) The system is designated a ‘‘major ployed in retail establishments. See 32 system’’ by the Head of the DoD agen- CFR part 43. cy responsible for the system. (dd) Primary Government representa- (w) Majority of working days. More tive. For purposes of 10 U.S.C. 2397b, than 50% of days actually worked, ex- acting as a ‘‘representative’’ requires cluding holidays, weekends, sick days, personal and substantial participation and leave days of the two-year period in the matter by personal presence, in question. telephone conversation, or similar in- (x) Negotiation. For purposes of 10 volvement with representatives of a de- U.S.C. 2397b only, the exchange of fense contractor. At any time, more views between Federal Government and than one individual may act as a pri- defense contractor representatives re- mary representative for a single mat- garding respective entitlements, liabil- ter. ities and responsibilities on a particu- (ee) Procurement official. See 48 CFR lar defense contract, modification, or 3.104–4(h). claim over $10 million, including delib- (ff) Procurement function. For pur- erations regarding contract specifica- poses of 10 U.S.C. 2397b, any function tions, terms of delivery, allowability of relating to: costs, and pricing of change orders. (1) The negotiation, award, adminis- Other statutes using this term may de- tration, or approval of a contract; fine it differently. (2) The selection of a defense contrac- (y) Non-Federal entity. A non-Federal tor; entity is generally a self-sustaining, (3) The approval of a change in a con- non-Federal person or organization, es- tract; tablished, operated and controlled by (4) The performance of quality assur- any individual(s) acting outside the ance, operational and developmental scope of any official capacity as offi- testing, the approval of payment, or cers, employees or agents of the Fed- auditing under a contract; or eral Government. A non-Federal entity (5) The management of a procure- may operate on DoD installations if ap- ment program. proved by the installation commander (gg) Prohibited source. See 5 CFR or higher authority under applicable 2635.203(d). regulations. See 32 CFR part 212. (hh) Qualified individual. See 5 CFR (z) Non-public information. Informa- 2638.702(a)(2). tion generally not available to the pub- (ii) Reserve military officer. An individ- lic, obtained in the course of one’s offi- ual who currently holds an appoint- cial DoD duties or position which ment in the reserve of a Military De- would normally not be releasable under partment, or is a military officer of the

365 § 84.3 32 CFR Ch. I (7–1–97 Edition)

National Guard with Federal Govern- 203, 205, 207, 208, 209 and 218, and related ment recognition. provisions of OGE regulations, do not (jj) Retired military officer. Any mili- apply to enlisted members. Provisions tary officer entitled to receive military similar to those of 18 U.S.C. 208 and 209 retired pay, even though such pay may apply to enlisted members as follows: be waived or pending. (1) Except as approved by the DoD (kk) Senior DoD official. For purposes component DAEO or designee, an en- of 18 U.S.C. 207, a DoD employee is de- listed member, including an enlisted fined as stated in 10 U.S.C. 207(c)(2). special Government employee, shall (ll) Special Government employee. An not participate personally and substan- individual who is retained, designated, tially as part of his official DoD duties, appointed, or employed to perform, in any particular matter in which he, with or without compensation, for a his spouse, minor child, partner, entity period not to exceed 130 days during in which he is serving as officer, direc- any period of 365 consecutive days, tor, trustee, partner, or employee, or temporary duties either on a full-time any entity with which he is negotiat- or intermittent basis. The term also in- ing or has an arrangement concerning cludes a reserve military officer who is prospective employment, has a finan- serving on active duty involuntarily or cial interest; for training for any length of time, and (2) An enlisted member, except an en- one who is serving voluntarily on ac- listed special Government employee, tive duty for training for 130 days or shall not receive any salary or less. It does not include enlisted mem- supplementation of his Federal Govern- bers; however, for the purposes of this ment salary, from any entity other part, enlisted members shall be consid- than the Federal Government or as ered special Government employees to may be contributed out of the treasury the same extent that military officers of any State, county, or municipality, are included in the meaning of the for his services to the Federal Govern- term. ment. (mm) Travel benefits. Travel related gifts, including in kind subsistence and (c) DoD employees shall become fa- accommodations and payments or re- miliar with all ethics provisions, in- imbursements of expenses, from non- cluding the standards set out in Execu- Federal sources. tive Order 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215–218, and comply with § 84.3 General policy. them; DoD policy. It is DoD policy that: (d) DoD employees shall become fa- (a) A single, uniform source of stand- miliar with the scope of and authority ards of ethical conduct and ethics guid- for the official activities for which ance shall be maintained within DoD, they are responsible. Sound judgment and each DoD agency shall implement must be exercised. All DoD employees and administer a comprehensive ethics must be prepared to account fully for program to ensure compliance with the matter in which that judgment has such standards and guidance; been exercised; (b) Although OGE regulations, cross- (e) If the propriety of a proposed ac- referenced in this part, do not apply to tion or decision is in question for any enlisted members of DoD, the provi- reason, DoD employees shall seek guid- sions of 5 CFR parts 2634, 2635, 2638, ance from a DoD component legal 2639, 2640, and 2641, are determined to counsel, the DoD component DAEO or be appropriate for enlisted members designee, or Ethics Counselor, as ap- and are hereby made applicable to en- propriate; listed members as if the terms ‘‘em- (f) Individual conduct, official pro- ployee,’’ and ‘‘special Government em- grams and daily activities within DoD ployee,’’ as used in those OGE regula- shall be accomplished lawfully and tions, include enlisted members to the ethically; same extent that military officers are (g) DoD employees shall adhere included within the meaning of those strictly to DoD policy of equal oppor- terms. The following exception applies tunity, regardless of race, color, reli- to certain criminal statutes, 18 U.S.C. gion, gender, age, national origin, or

366 Office of the Secretary of Defense § 84.4 handicap, in accordance with applica- formation necessary to render an opin- ble laws and regulations. ion; (5) Ensure that proper collection, re- § 84.4 General responsibilities. view, and handling of the DoD compo- (a) The Head of each DoD component nent’s financial and employment dis- shall: closure reports, including those sub- (1) Exercise personal leadership and mitted by Presidential appointees for take personal responsibility through confirmation purposes; the DoD component DAEO or designee (6) Be responsible for the implemen- for establishing and maintaining the tation and administration of ethics and DoD component’s ethics program and procurement integrity training and en- be personally accountable for the DoD sure that necessary resources are avail- component’s compliance with every re- able to accomplish such training; quirement of this part, including the (7) Provide periodic ethics and pro- ethics and procurement integrity curement integrity training for Ethics training requirements; Counselors; (2) When authorized, appoint a DoD (8) Certify Qualified Individuals to component DAEO, through a formal conduct ethics training; written delegation of authority, who is (9) Assist agency designees, through qualified to oversee and supervise the the chain of command or supervision, DoD component’s ethics programs for in initiating prompt, effective action DoD employees, both civilian and mili- to evaluate and process violations, po- tary (the GC, DoD, may serve as the tential violations, and appearances of DAEO for several DoD components); violations of ethics laws or regulations, (3) When authorized, appoint a DoD in accordance with applicable proce- component Atlernate DAEO who shall dures as discussed in subpart J of this serve in the absence of the DoD compo- part; nent DAEO; (10) Provide advice and assistance to (4) Provide sufficient resources (in- DoD employees of the DoD component cluding funding and investigative, not otherwise served by a local Ethics audit, legal, training and administra- Counselor; tive staff) to enable the DoD compo- (11) Oversee and coordinate local eth- nent DAEO or designee to implement ics programs through a system for peri- and administer the DoD component’s odic evaluation and ensure that the ethics programs in a positive and effec- DoD component provides and main- tive manner. tains sufficient funding, staff, space (b) Each DoD component Designated and resources to administer the DoD Agency Ethics Official (DAEO) shall: component’s ethics programs; (1) Be responsible for the implemen- (12) Maintain liaison with the DoD tation and administration of all as- EOC, OGE, and the DoD Standards of pects of the DoD component ethics pro- Condut Office (SOCO), and provide to gram and manage and oversee local im- SOCO and OGE all information re- plementation and administration of all quired by law or regulation; matters relating to ethics covered by (13) Represent the DoD component to this part. OGE, Congress, the Executive Branch (2) Appoint DoD component Deputy and the public on matters relating to DAEOs and Ethics Counselors and dele- ethics and standards of conduct. gate to them written authority to act (c) Each DoD component Alternate on behalf of the DoD component DAEO; Designated Agency Ethics Official (Al- (3) Ensure that ethics advice (and ternate DAEO) shall serve in the ab- facts relied upon for such advice) is in sence of the DoD component DAEO writing, when practicable; and, when so serving, is authorized to (4) Ensure that written opinions re- take any action this part indicates garding the applicability of 10 U.S.C. may be taken only by the DoD compo- 2397b and 41 U.S.C. 423 are provided nent DAEO. within 30 days of request by any DoD (d) Each DoD component Deputy Des- employee provided that the requests is ignated Agency Ethics Official (Deputy accompanied by complete and full in- DAEO) shall serve on behalf of the DoD

367 § 84.4 32 CFR Ch. I (7–1–97 Edition) component DAEO consistent with writ- 450,2 ‘‘Confidential Financial Disclo- ten delegation of authority from the sure Report,’’ July 1992, do so in a DoD component DAEO. timely manner; (e) The head of each DoD component (8) Ensure that DoD employees of the command or organization shall: command or organization attend re- (1) Exercise personal leadership and quired ethics and procurement integ- take personal responsibility for estab- rity training. lishing and maintaining the com- (f) The General Counsel of each DoD mand’s or organization’s ethics pro- component shall: gram in coordination with the com- (1) Serve as the DAEO for the DoD mand’s or organization’s Ethics Coun- component unless otherwise delegated; selors; (2) Support all aspects of the ethics (2) Be personally accountable for the program of the DoD component; command’s or organization’s ethics (3) Provide legal guidance and assist- program, including its ethics and pro- ance to the DoD component DAEO or curement integrity training program, designee. and the command’s or organization’s (g) The Judge Advocate General of compliance with every requirement of each Military Department shall: this part; (1) Provide legal guidance and assist- (3) Provide sufficient resources to en- ance to Ethics Counselors under his su- able the command’s organization’s pervision; Ethics Counselors to implement and (2) Support all aspects of the ethics administer the local aspects of the program of the Military Department. command’s or organization’s ethics program in a positive and effective (h) The General Counsel, DoD (GC, manner; DoD) shall: (4) Ensure the prompt resolution of (1) Maintain the DoD SOCO and pro- any actual or apparent conflict of in- vide sufficient resources to enable terest involving a DoD employee of the SOCO to oversee and coordinate DoD command or organization; component ethics programs, to produce (5) Direct administrative officers (or reports required by Congress and main- equivalent) of the command or organi- tain report data, and to manage the zation to ensure that the position de- DoD EOC; scriptions of the DoD component com- (2) Represent DoD as a whole to OGE, mand or organization indicate if finan- Congress, the Executive Branch, and cial disclosure report filing, annual the public when called upon to do so on ethics training or procurement integ- matters relating to ethics policy; rity training is required and ensure the (3) Have the authority to incorporate accuracy of personnel data provided by changes to Government-wide regula- the director of the DoD component per- tions that are reprinted in this part sonnel office (or equivalent) on DoD without formal coordination. employees of the command or organi- (i) Each agency designee shall: zation; (1) In accordance with § 84.10(g), pro- (6) Direct administrative officers (or vide prior approval or disapproval of equivalent) of the command or organi- outside activities by DoD employees zation to coordinate with the DoD under his responsibility; component DAEO or designee to de- (2) Receive and appropriately process velop lists of all DoD employees of the reports of suspected violations of eth- command or organization who are re- ics statutes or regulations and possible quired to receive ethics and procure- conflicts of interest; ment integrity training, schedule such (3) Receive and appropriately process training, annotate such lists to indi- reports of non-compliance with the fil- cate when required training was ac- ing requirements of subpart G of this complished and retain annotated lists part; for three years; (7) Ensure that DoD employees of the 2 Copies are available from U.S. Office of command or organization who are in Government Ethics, 1201 New York Avenue positions requiring the filing of SF NW., Suite 500, Washington, DC 20005–3917.

368 Office of the Secretary of Defense § 84.4

(4) Perform all the other duties of an (4) Provide recommendations for DoD agency designee established in this input on proposed ethics legislation part and in 5 CFR part 2635; and regulations. (5) Annually determine those posi- (l) The Director, Washington Head- tions under his responsibility that re- quarters Services shall: quire the filing of SF 450s, and annual (1) Prepare an annual report listing ethics and procurement integrity all the defense contractors that have training. been awarded $10 million or more in de- (j) The DoD Standards of Conduct Of- fense contracts during the fiscal year fice (SOCO) shall: and publish the report in the FEDERAL (1) Manage the DoD EOC and call REGISTER not later than December 15 periodic meetings to consider current following the end of the fiscal year; issues in ethics and standards of con- (2) Prepare an annual report listing duct; all the defense contractors that have (2) Coordinate DoD component ethics been awarded $25,000 or more in defense programs, including providing uniform contracts during the fiscal year and guidance and training material; distribute to the DoD component (3) Collect and publish important DAEOs not later than December 31 fol- written opinions from DoD compo- lowing the end of the fiscal year. nents, when practicable, to promote (m) The Under Secretary of Defense uniformity of ethics opinion through- for Acquisition shall prepare an annual out DoD; report listing all the major defense systems as defined by 10 U.S.C. 2302(5), and (4) Monitor and assist DoD compo- the prime defense contractors respon- nent DAEOs in ensuring effective cor- sible for each, that were in progress rective action is taken to remedy vio- during the fiscal year and provide the lations, potential violations and the report to the DoD SOCO for publication appearance of violations of ethics laws in the FEDERAL REGISTER not later or this part; than December 31 following the end of (5) Certify Qualified Individuals to the fiscal year; conduct ethics training who may be (n) Each Ethics Counselor shall: used by DoD components; (1) Provide written and oral advice, (6) Make ethics and procurement in- counseling, and assistance to his DoD tegrity training for ethics trainers component command or organization available on an ongoing basis to ensure and to the DoD employees of his DoD that Qualified Individuals are uni- component command or organization, formly prepared to provide such train- on all ethics matters, particularly ing; areas covered by this part and related (7) Distribute ethics and procurement statutes and regulations; integrity training material to all DoD (2) Request assistance, through ap- component DAEOs for use in all types propriate channels, from the DoD com- of ethics and procurement integrity ponent DAEO or designee on any mat- training; ter than cannot be resolved locally; (8) In the interest of Federal Govern- (3) Maintain a current copy of this ment efficiency and economy, establish part, and all changes, for review by any and maintain a resource center of eth- DoD employee; ics and procurement integrity mate- (4) Maintain a thorough understand- rials (including training materials) de- ing of current DoD ethics policy veloped by DoD components. through contact with the DoD compo- (k) The DoD Ethics Oversight Com- nent DAEO, attendance at periodic eth- mittee (EOC) shall: ics training courses, and other appro- (1) Meet periodically, as necessary; priate methods; (2) Consider general ethics issues or (5) Promptly provide a copy to the current issues and make recommenda- DoD component DAEO of precedental tions to promote uniformity of ethics written decisions to assist uniformity opinions throughout DoD; throughout the DoD components; (3) Provide recommendations to DoD (6) Perform other duties as assigned component DAEOs on particular ethics by written delegation from the DoD matters in accordance with this part; component DAEO;

369 § 84.4 32 CFR Ch. I (7–1–97 Edition)

(7) Review financial disclosure re- or organization indicates if an SF 278,3 ports in accordance with subpart G of ‘‘Public Financial Disclosure Report,’’ this part. January 1991, or SF 450, and annual (o) The Inspector General of each ethics and procurement integrity DoD component shall: training are required so prospective or (1) Investigate ethics matters arising new DoD employees are on notice of in the DoD component, and refer any such requirements prior to employ- such matters that involve suspected ment; criminal violations to the appropriate (2) Upon the request of the DAEO or criminal investigative office of the designee, ensure the accuracy of per- DoD component; sonnel data provided by the Director of (2) Report to the DoD component the DoD component personnel office on DAEO or designee on investigations DoD employees of the DoD component that result in referrals to the Depart- command or organization; ment of Justice (DoJ) and on discipli- (3) In coordination with the DoD nary actions that must be reported in component DAEO or designee, develop response to the OGE annual ethics survey; a list of all DoD employees within the (3) Ensure inspectors and agents are DoD component command or organiza- educated in ethics matters to ensure tion who are required to receive ethics appropriate handling of ethics related and procurement integrity training; cases and calls; (4) In coordination with the DoD (p) The director of each DoD compo- component DAEO or designee, ensure nent personnel office (or equivalent) that DoD employees of the DoD compo- shall: nent command or organization are (1) Provide the DoD component scheduled to receive required ethics DAEO or designee such personnel data and procurement integrity training; on DoD employees, both civilian and (5) Annotate such list to indicate military, as may be required by the when required training was accom- DoD component DAEO or designee; plished and retain annotated list for (2) Assign personnel action officers three years. the responsibility of providing the re- (r) Each DoD employee shall: quired information at local levels; (1) Abide by the ethical principles es- (3) In coordination with the DoD tablished by Executive Order 12674, eth- component DAEO or designee, estab- ics statutes, and the ethics regulations lish procedures to inform new DoD em- promulgated by OGE and the DoD ployees of their obligation to receive thereunder; ethics and procurement integrity (2) Set a personal example for fellow training as required; DoD employees in performing official (4) In coordination with the DoD duties within the highest ethical stand- component DAEO or designee, estab- ards; lish out-processing procedures and (3) Report suspected violations of records to advise DoD employees of ethics regulations in accordance with available counseling regarding post- § 84.38(a); employment and procurement integ- (4) Perform all official duties so as to rity restrictions prior to departure facilitate Federal Government effi- from DoD; ciency and economy; (5) In coordination with the DoD component DAEO or designee, estab- (5) Attend ethics and procurement in- lish procedures to advise incoming and tegrity training as required; outgoing DoD employees of their finan- (6) File financial and employment cial and employment disclosure report- disclosure reports as required. ing obligations. [59 FR 13214, Mar. 21, 1994, as amended at 60 (q) The administrative officer (or FR 20029, Apr. 24, 1995] equivalent) of each DoD component command and organization shall: 3 Copies are available from U.S. Office of (1) Ensure that each position descrip- Government Ethics, 1201 New York Avenue tion of the DoD component command NW., Suite 500, Washington, DC 20005–3917.

370 Office of the Secretary of Defense § 84.7

Subpart B—Standards of Ethical (3) Ship launch and similar ceremonies. Conduct A DoD employee may not accept gifts in connection with a ceremony to mark § 84.5 Office of Government Ethics reg- the completion of a milestone in ship- ulation. building, aircraft completion, or simi- See 5 CFR part 2635, ‘‘Standards of lar vehicle launch or roll-out unless at- Ethical Conduct for Employees of the tendance is official and is approved by Executive Branch.’’ The following sec- the head of the DoD component com- tions of 5 CFR part 2635 are military mand or organization and the gifts are general orders: § 2635.202(a); limited to the following (see 5 U.S.C. § 2635.202(c)(1),(2),(3),(4), and (5) (exclud- 7301 note): ing example and paragraphs (c)(4) (i) (i) Attendance at appropriate func- through (iii)); § 2635.302; § 2635.402(a) (ex- tions incident to the ceremony, such as cluding note); § 2635.502(a) (excluding a dinner preceding the ceremony and paragraphs (a)(1) and(2)); § 2635.503(a) reception following it, and related (excluding examples); § 2635.604(a) (ex- food, hospitality and entertainment, as cluding the last sentence and exam- long as the function and related bene- ples); § 2635.606(a) (excluding the last fits are not lavish, excessive, or ex- sentence and example); the first sen- travagant; tence of § 2635.702; § 2635.702(a) (exclud- (ii) Tangible gifts or mementos in ing examples); § 2635.702(b) (excluding connection with the ceremony to DoD examples); § 2635.702(c) (excluding ex- employees, their spouses, and their de- amples); § 2635.703(a); § 2635.704(a); pendent children, who are official par- § 2635.705(b) (excluding examples); the ticipants in the ceremony, as long as first paragraph of § 2635.802; § 2635.802(a); the aggregate retail value does not ex- § 2635.802(b) (excluding sentence begin- ceed $100 per family and the cost is not ning ‘‘Employees are cautioned * * *’’ borne by the Federal Government. and excluding examples); § 2635.805(a); When such gifts exceed the $100 limit, § 2635.807(a) (excluding paragraphs (a)(1) the recipient shall pursue one of the and (2)); the first sentence of § 2635.808; following alternatives: § 2635.808(b) (excluding example); and (A) Return the gift to the donor; § 2635.808(c) (excluding paragraph (c)(3) (B) Retain the gift after reimbursing and examples). the donor the full value of the gift; or (C) Forward the gift to the appro- § 84.6 DoD supplement to 5 CFR part priate DoD component official for dis- 2635. position as a gift to the Federal Gov- See 5 CFR 3601.101–3601.108, ‘‘Supple- ernment in accordance with statute. mental Standards of Conduct for Em- See 10 U.S.C. 2601. ployees of the Department of Defense.’’ (b) Use of Federal Goverment telephone The following sections of 5 CFR systems. See GSA regulation 41 CFR 3601.101–3601.108 are military general part 201–21, subpart 201–21.6, on orders: § 3601.104(a) (excluding para- manangement of Federal Government graphs (a)(1) and (2)); § 3601.104(b); telecommunications resources. § 3601.105(a); § 3601.105(b); § 3601.105(c); (1) The use of Federal Government § 3601.106; and § 3601.108 (excluding para- telephone systems (including calls over graphs (a) through (c)). commercial systems which will be paid for by the Federal Government), except § 84.7 DoD guidance. as provided in paragraph (b)(2) of this (a) Gifts—(1) Procurement officials. In section shall be limited to the conduct addition to the restrictions on gifts in of official business. Such official busi- 5 CFR part 2635, subpart B, procure- ness calls may include emergency calls ment officials are subject to the gift and calls that the DoD components de- acceptance restrictions of the procure- termine are necessary in the interest of ment integrity statute. See 41 U.S.C. the Federal Government. 423 and 48 CFR 3.104. (2) Personal calls (such as calls to (2) Gifts from foreign governments. speak to spouse/minor children or to There are special DoD rules governing arrange for emergency repairs to resi- gifts from foreign governments. See 5 dence or automobile) that must be U.S.C. 7342 and 32 CFR part 95. made during working hours over the

371 § 84.7 32 CFR Ch. I (7–1–97 Edition) commercial local/long distance net- ties in accordance with 20 U.S.C. work may properly be authorized as 107a(5). being in the best interest of the Fed- (2) Gambling with a subordinate may eral Government if the call is consist- be a violation of Articles 133 and 134 of ent with the following criteria: the Uniform Code of Military Justice (i) It does not adversely affect the (UCMJ) (10 U.S.C. 801–940). performance of official duties by the (3) Gambling may be prohibited by DoD employee or the DoD employee’s Federal Government building and organization; grounds regulations, such as 32 CFR (ii) It is of reasonable duration and part 40b which prohibits gambling in frequency; and the Pentagon. (iii) It could not reasonably have been made at another time; (d) Outside employment and activity. In (iv) And, in the case of long distance addition to 5 CFR 3601.107 except to the calls, is: extent that when procedures have been (A) Charged to the employee’s home established by higher authority for any telephone number or other non-Federal class of DoD employees (e.g., DoD Di- Government number (third number rective 6025.7 4), agency designees may call); require DoD employees under their ju- (B) Made to an 800 toll-free number; risdiction to report any outside em- (C) Charged to the called party if a ployment or activity prior to engaging non-Federal Government number (col- in the employment or activity. See lect call); § 84.10(g). (D) Charged to a personal telephone (1) The commander, head of the orga- credit card; or nization, or supervisor may prohibit (E) When traveling for more than one the employment or activity if he be- night on Federal Government business lieves that the proposed outside activ- in the United States, a brief call to his ity will detract from readiness or pose residence to notify family of a schedule a security risk. change. (2) If action is not taken to prohibit (c) Gambling. (1) [The following is a the employment or activity, the DoD General Order] A DoD employee shall employee is free to engage in the em- not participate while on Federally- owned or leased property or while on ployment or activity in keeping with duty (for military members, this other restrictions of this part. means, in this context, present for (e) Use of military title by retirees or re- duty) for the Federal Government in serves. Retired military members and any gambling activity prohibited by 5 members of reserve components, not on CFR 735.201 except: active duty, may use military titles in (i) Activities necessitated by a DoD connection with commercial enter- employee’s law enforcement duties; prises, provided they clearly indicate (ii) Activities by organizations com- their retired or inactive reserve status. posed primarily of DoD employees or However, any use of military titles is their dependents for the benefit of wel- prohibited if it in any way casts dis- fare funds for their own members or for credit on DoD or gives the appearance the benefit of other DoD employees or of sponsorship, sanction, endorsement, their dependents, subject to the limita- or approval by DoD. In addition, in tions of local law and of § 84.9(k) and overseas areas, commanders may fur- (l), when approved by the Head of the ther restrict the use of titles by retired DoD Component or designee; military members and members of re- (iii) Private wagers among DoD em- serve components. ployees if based on a personal relationship and transacted entirely within as- [59 FR 13214, Mar. 21, 1994, as amended at 60 signed Federal Government living FR 20029, Apr. 24, 1995] quarters and within the limitations of local laws [end of General Order; or (iv) Purchases of lottery tickets au- 4 Copies may be obtained, at cost, from the thorized by any State from blind ven- National Technical Information Service, 5285 dors licensed to operate vending facili- Port Royal Road, Springfield, VA 22161.

372 Office of the Secretary of Defense § 84.9

Subpart C—Activities With Non- Federal entities without authorization Federal Entities from the Head of the DoD component. However, authorized DoD employees § 84.8 Office of Government Ethics reg- may officially represent DoD in discus- ulation. sions of matters of mutual interest See 5 CFR part 2636, ‘‘Limitations on with non-Federal entities, may partici- Outside Employment and Prohibition pate in the determinations and conclu- of Honoraria; Confidential Reporting of sions of non-Federal entities, and may Payments of Charities in Lieu of Hono- cast a vote on issues within the scope raria.’’ of the DoD employees’ official responsibilities. § 84.9 Official participation in non- (d) Impartiality of agency designee and Federal entities. travel-approving Authority. When a DoD (a) Attendance. (1) Agency designees employee requests permission to travel may permit their DoD employees to at- to or participate in activities of a non- tend meetings, conferences, seminars Federal entity and the agency designee or similar events sponsored by non- or travel approving authority is an ac- Federal entities in their official DoD tive participant in the non-Federal en- capacities at Federal Government ex- tity, that agency designee or travel ap- pense if there is a legitimate Federal proving authority may not act on the Government purpose in accordance DoD employee’s request but shall defer with 5 U.S.C. 4101 et seq. and 37 U.S.C. such action to the next higher superior 412, such as training a DoD employee or another independent DoD authority. beyond maintaining professional cre- See 5 CFR 2635.402 and 2635.502 and 18 dentials or gathering information of U.S.C. 208. value to the DoD. (e) Impartiality of DoD employees. DoD (2) DoD employees are prohibited employees are generally prohibited from attending events in their official from engaging in any official activities DoD capacities at Federal Government in which a non-Federal entity is a expense in order to acquire or maintain party or has a financial interest if the professional credentials that are a min- DoD employee is an active participant imum requirement to hold the DoD po- in the non-Federal entity or has been sition. See 5 U.S.C. 5946 and 31 U.S.C. an officer in the non-Federal entity 1345. within the last year. See 5 CFR 2635.402 (b) Membership. DoD employees may and 2635.502 and 18 U.S.C. 208. serve as DoD liaisons to non-Federal (f) Endorsement. [The following is a entities when appointed by the head os General Order] Endorsement of a non- the DoD Component command or orga- Federal entity may be neither stated nization who determines there is a sig- nor implied by DoD or DoD employees nificant and continuing DoD interest and DoD employees may not use their to be served by such representation. Li- titles or positions to suggest official aisons serve as part of their official endorsement or preferential treatment DoD duties and under DoD component of any non-Federal entity except those memberships. DoD employees may not listed in § 84.9(k) [end of General accept DoD component membership in Order]. Use of military grade as part of a non-Federal entity on behalf of DoD an individual’s name in relationship to except as provided by statute or regu- membership in private organizations is lation. DoD may pay for DoD compo- permissible. See 5 CFR 2635.702(c). nent memberships in accordance with (g) Distributing information. In accord- opinions of the Comptroller General, ance with public affairs regulations, of- such as 24 Comp. Gen. 814 (which may ficial channels may be used to notify be purchased from the U.S. Govern- DoD employees of events sponsored by ment Printing Office, Washington, DC non-Federal entities. 20402). DoD is prohibited from paying (h) Remuneration. DoD employees for individual memberships by 5 U.S.C. may not receive any salary or salary 5946. See also 10 U.S.C. 2601. supplement from a non-Federal entity (c) Management. DoD employees may for performance of DoD duties. not participate in their official DoD ca- (i) Co-sponsorship. A DoD component pacities in the management of non- is a sponsor or co-sponsor of an event

373 § 84.9 32 CFR Ch. I (7–1–97 Edition) when that DoD component is one of the non-Federal entity. The supporting organizations holding the event or in non-Federal entity may be permitted whose name the event is held. Co-spon- to mention its support in conference sorship of events with a non-Federal materials, but not in terms which entity is prohibited except as follows: imply that it is sponsoring or co-spon- (1) A DoD component may co-sponsor soring the event. a civic or community activity where (j) Participation in conferences and the head of the DoD component com- similar events. Subject to the provisions mand or organization determines that of paragraph (l) of this section and in the activity is unrelated to the purpose accordance with public affairs regula- or business of the co-sponsoring, non- tions and 31 U.S.C. 1345, DoD employees Federal entity or the purpose or business of any of its members. See DoD In- may participate in their official DoD struction 5410.20 5; capacities as speakers or panel mem- (2) A DoD component may co-sponsor bers at conferences, seminars, or simi- a conference, seminar, or similar event lar events sponsored by non-Federal with a non-Federal entity when all of entities. the following requirements are met: (k) Fundraising and membership drives. (i) The head of the DoD component (1) [The following is a General Order] command or organization finds that Except as provided in paragraph (l) of the subject matter of the conference this section, DoD components shall not (or co-sponsored portion) is scientific, officially support and DoD employees technical or professional issues that shall not officially endorse or officially are relevant to the DoD component’s participate in membership drives or mission; fundraising for any non-Federal entity (ii) The head of the DoD component except the following organizations command or organization finds that which are not subject to the provisions the purpose of co-sponsorship is to of paragraph (l) of this section: transfer federally developed technology (i) The Combined Federal Campaign or to stimulate wider interest and in- (CFC); quiry into the scientific, technical or professional issues previously identi- (ii) Emergency and disaster appeals fied; approved by the Office of Personnel (iii) The non-Federal entity is a rec- Management (OPM); ognized scientific, technical or profes- (iii) Army Emergency Relief; sional organization approved by the (iv) Navy-Marine Corps Relief Soci- DoD component DAEO for this purpose; ety; and (v) Air Force Assistance Fund, in- (iv) The DoD component accom- cluding: plishes the co-sponsorship through a (A) Air Force Enlisted Men’s Widows contract, grant or cooperative agree- and Dependents Home Foundation, ment as identified in 31 U.S.C. 6303 Inc.; through 6306; or a Cooperative Re- (B) Air Force Village; search and Development Agreement (C) Air Force Aid Society; (CRDA) as defined in 15 U.S.C. 3710a; or (D) General and Mrs. Curtis E. a cooperative agreement or other LeMay Foundation. transaction identified in 10 U.S.C. 2371. (3) If the DoD component desires to (vi) Other organizations composed sponsor an event, but requires assist- primarily of DoD employees or their ance in making the arrangements, the dependents when fundraising among DoD component may arrange, through their own members for the benefit of normal acquisition procedures, to have welfare funds for their own members a non-Federal entity provide whatever when approved by the head of the DoD assistance is necessary. If the event is component command or organization open to individuals outside the Federal [end of General Order]. Government, attendance may not be (2) Fundraising by DoD employees is limited to members of the supporting strictly regulated by Executive Order 12353, 47 FR 12785, 3 CFR, 1982 Comp., p. 5 See footnote 4 to § 84.7(d). 139, 5 CFR part 950, DoD Directive

374 Office of the Secretary of Defense § 84.9

5035.1 6, DoD Instruction 5035.5 7, DoD event) is charged for the event, no ad- Directive 5410.18 8, 5 CFR 2635.808 and by mission fee (beyond what will cover the the prohibition against preferential reasonable costs of sponsoring the treatment established in paragraph (f) event) is charged for the portion of the of this section. event supported by the DoD, or DoD (l) Support of non-Federal entity support to the event is incidental to events. (1) The head of a DoD compo- the entire event in accordance with nent command or organization may public affairs guidance. provide DoD employees in their official (2) Involvement of DoD resources in capacities as speakers, panel members air shows sponsored by non-Federal en- or other participants, or, on a limited tities is approved or disapproved by the basis, the use of DoD facilities and Office of the Assistant Secretary of De- equipment (and the services of DoD fense (Public Affairs). employees necessary to make proper (3) Speeches by DoD employees at use of the equipment), in support of an events sponsored by non-Federal enti- event sponsored by a non-Federal en- ties are not precluded when the speech tity when the head of the DoD com- expresses an official DoD position in a mand or organization determines all of public forum in accordance with public the following: affairs guidance. (i) The support does not interfere (m) Relationship governed by other au- with the performance of official duties thorities. In addition to the provisions and would in no way detract from read- of this section, certain organizations iness; have special relationships with the (ii) The sponsoring, non-Federal en- DoD or its employees specially recog- tity is not affiliated with the CFC (in- nized by law or by other directives. The cluding local CFC) or, if affiliated with organizations include: the CFC, the Director, OPM or designee (1) Certain banks and credit unions has no objection to DoD support of the (32 CFR part 231); event (OPM generally has no objection (2) United Service Organization (DoD 9 to support of events that do not specifi- Directive 1330.12 ); cally target Federal employees for (3) Labor organizations (5 U.S.C. 10 fundraising); Chapter 71; DoD 1400.25–M , Chapter (iii) The community relations with 711); (4) Combined Federal Campaign (Ex- the immediate community and/or other ecutive Order 10927, 26 FR 2383, 3 CFR, legitimate DoD interests are served by 1959–1963 Comp., p. 508) DoD Directive the support; 5035.1; (iv) It is appropriate to associate (5) Association of Management Offi- DoD, including the concerned Military cials and Supervisors (DoD Instruction Department, with the event; 5010.30 11); (v) The event is of interest and bene- (6) American Registry of Pathology fit to the local civilian or military (10 U.S.C. 177); Henry M. Jackson Foun- community as a whole; dation for the Advancement of Military (vi) The DoD Component command or Medicine (10 U.S.C. 178); American Na- organization is able and willing to pro- tional Red Cross (10 U.S.C. 2542); Boy vide the same support to comparable Scouts Jamborees (10 U.S.C. 2544); Girl events that meet the criteria of this Scouts International Events (10 U.S.C. subsection and are sponsored by other 2545); Shelter for Homeless (10 U.S.C. similar non-Federal entities; 2546); National Military Associations; (vii) The use is not restricted by Assistance at National Conventions (10 other statutes or regulations; and U.S.C. 2548); Assistance from American (viii) Except for a charitable fund- National Red Cross (10 U.S.C. 2602); raising event that meets all other cri- United Seaman’s Service Organization teria for DoD participation, no admis- (10 U.S.C. 2604); Scouting: Cooperation sion fee (beyond what will cover the reasonable costs of sponsoring the 9 See footnote 4 to § 84.7(d). 10 Written request should be forwarded to: 6 See footnote 4 to § 84.7(d). OASD(P&R)/CPP/EEO, room 3D269, Penta- 7 See footnote 4 to § 84.7(d). gon, Washington, DC 20301. 8 See footnote 4 to § 84.7(d). 11 See footnote 4 to § 84.7(d).

375 § 84.10 32 CFR Ch. I (7–1–97 Edition) and Assistance in Foreign Areas (10 participate in community support ac- U.S.C. 2606); and Civil Air Patrol (10 tivities that promote civic awareness U.S.C. 9441–9442). and uncompensated public service such [59 FR 13214, Mar. 21, 1994, as amended at 60 as disaster relief events, blood dona- FR 20029, Apr. 24, 1995] tions, and voting and registring to vote. § 84.10 Personal participation in non- (4) Impartiality of agency designee and Federal entities. travel approving authority. When a DoD (a) Participation—(1) Fundraising and employee requests permission to travel other activities. Subject to other provi- to or participate in activities of a non- sions of this part, DoD employees may Federal entity and the agency designee voluntarily participate in activities of or travel approving authority is an ac- non-Federal entities as individuals in tive participant in the non-Federal en- their personal capacities provided they tity, that agency designee or travel ap- act exclusively outside the scope of proving authority may not act on the their official position. Purely personal, DoD employee’s request but shall defer unofficial, volunteer efforts to support such action to the next higher superior fundraising are not prohibited where or another independent DoD authority. the efforts do not imply DoD endorse- See 5 CFR 2635.402 and 2635.502 and 18 ment. The head of the DoD component U.S.C. 208. command or organization may author- (b) Membership and management. DoD ize such activities outside the Federal employees may become members and Government workplace, such as at pub- participate in the management of non- lic entrances, in community support Federal entities as individuals in a per- facilities and in personal quarters. See sonal capacity provided they act exclu- 5 CFR part 950 and Executive Order sively outside the scope of their official 12353. These activities may be further position. Except for such service in the limited by Federal Government build- organizations listed in § 84.9(k)(1), a ing and grounds regulations. DoD empoyee may not serve in a per- (2) Professional associations and sonal capacity as an officer, member of learned societies. Agency designees may the Board of Directors, or in any other permit their DoD employees to volun- similar position in any non-Federal en- tarily participate in the activities of tity offered because of their DoD as- non-profit professional associations signment or position. and learned societies without being (c) Impartiality of DoD Employees. DoD charged leave and to use Federal Gov- employees are generally prohibited ernment equipment or administrative from engaging in any official activities support services to prepare papers to be presented at such association or soci- in which a non-Federal entity is a ety events or to be published in profes- party or has a financial interest if the sional journals, when: DoD employee is an active participant (i) The participation or paper is rein the non-Federal entity or has been lated to the DoD employee’s official an officer in the non-Federal entity position or to DoD functions, manage- within the last year. See 5 CFR 2635.402 ment or mission; and and 2635.502 and 18 U.S.C. 208. (ii) The Agency can derive some ben- (d) Interference with employment of efit from the participation or prepara- local civilians. Enlisted members on action, such as expansion of professional tive duty may not be ordered or au- expertise by DoD employees or im- thorized to leave their post to engage proved public confidence derived fro in a civilian pursuit, business, or pro- the professional recognitions of the fessional activity if it interferes with DoD employee’s competence; the customary or regular employment (iii) The participation or preparation of local civilians in their art, trade, or of the paper does not interfere with the profession. See 10 U.S.C. 974. performance of official DoD duties. (e) Competition with civilian musicians. (3) Community support activities. Agen- Members of military bands are very re- cy designees may permit excused ab- stricted in the degree to which they sences for reasonable periods of time may compete off base with civilian mu- for their DoD employees to voluntarily sicians. See 10 U.S.C. 3634, 6223 and 8634.

376 Office of the Secretary of Defense § 84.10

(f) Use of Federal Government re- employee, other than a special Govern- sources—(1) Authorized uses. Other than ment employee, who is required to file Federal Government time authorized a financial disclosure report, SF 450 or in paragraphs (a)(2) and (a)(3) of this SF 278, shall obtain written approval section, Federal Government assets, from the agency designee before engag- employees, or property may not be ing in a business activity or com- used in support of personal participa- pensated outside employment with a tion in non-Federal entities, except as prohibited source, unless general ap- follows: proval has been given in accordance (i) Agency designees may permit oc- with paragraph (g)(2) of this section. casional use of Federal Government Approval shall be granted unless a de- telephone systems in keeping with termination is made that the business GSA rules on personal calls, provided activity or compensated outside em- that such use does not interfere with ployment is expected to involve con- the performance of official duties. See duct prohibited by statute or regula- § 84.7(b) and 41 CFR 201–21.6; tion. (ii) Because the cost to the Federal Government is minimal, the use of of- (i) Business activity means any busi- fice telecommunications equipment for ness, contractual or other financial re- local calls, word processing equipment, lationship not involving the provision libraries and similar resources and fa- of personal services by the DoD em- cilities whose use would not affect Fed- ployee. It does not include a routine eral Government costs significantly, commercial transaction or the pur- may be permitted by the agency des- chase of an asset or interest, such as ignee if: common stock, that is available to the (A) The non-Federal entity is not a general public. prohibited source; (ii) Employment means any form of (B) The agency designee determines non-Federal Government employment that: or business relationship involving the (1) A legitimate public interest is provision of personal services by the served by the use; or DoD employee. It includes, but is not (2) The use would enhance the profes- limited to, personal services as an offi- sional development or skills of the DoD cer, director, employee, agent, attor- employee in his current position. ney, consultant, contractor, general (C) The use of such resources is made partner or trustee. only during personal time, such as ex- (iii) Prohibited source has the mean- cused absence, lunch period, or after ing set forth in 5 CFR 2635.203(d), as duty hours; and modified by the separate agency des- (D) The use does not interfere with ignations in 5 CFR 3601.102. the performance of official duties. (2) The DoD component DAEO or des- (2) Prohibited uses. (i) [The following ignee may, by a written notice, exempt is a General Order] Because of the po- categories of business activities or em- tential for significant cost to the Fed- ployment from the requirement of eral Government, and the potential for paragraph (g)(1) of this section for abuse, DoD employees, such as secretaries, clerks, and military aides, prior approval based on a determina- may not be used to support the unoffi- tion that business activities or employ- cial activity of another DoD employee ment within those categories would in support of non-Federal entities ex- generally be approved and are not like- cept as provided in paragraph (a)(1) of ly to involve conduct prohibited by this section [end of General Order]. statute or regulation. (ii) [The following is a General Order] (3) A copy of the request for prior ap- For the same reasons, copiers and proval and the written approval shall other duplicating equipment may not be kept with the filed copy of the DoD be used for unofficial activity in sup- employee’s financial disclosure report, port of non-Federal entities [end of SF 450 or SF 278, or with the local Eth- General Order]. ics Counselor. (g) Prior approval of outside employ- (4) Such DoD employees who have ment and business activities. (1) A DoD not obtained prior approval and who

377 § 84.11 32 CFR Ch. I (7–1–97 Edition) are, on the effective date of this supple- the disclaimer may be given orally pro- mental rule, already engaged in an out- vided it is given at the beginning of the side activity that requires prior ap- oral presentation [end of General proval shall have 90 days from that Order]. date to obtain such approval. (2) Security clearance. A lecture, (5) Except to the extent that when speech, or writing that pertains to procedures have been established by military matters, national security is- higher authority for any class of DoD sues, or subjects of significant concern employee (e.g., DoD Directive 6025.7 12, to DoD shall be reviewed for clearance agency designees may require DoD em- by appropriate security and public af- ployees under their jurisdiction to re- fairs offices prior to delivery or publi- port any outside employment or activ- cation. ity prior to engaging in the employ- (3) Honoraria. Compensation for a lec- ment or activity. ture, speech or writing may be re- (i) The commander, head of the orga- stricted by the honoraria prohibition of nization, or supervisor may prohibit 5 U.S.C. App. (Ethics in Government the employment or activity if he be- Act of 1978, sec. 501); 5 CFR part 2636, lieves that the proposed outside activ- and 5 CFR 2635.807. However, the U.S. ity will detract from readiness or pose Office of Governemnt Ethics, by memo- a security risk. randum dated February 2, 1994, 13 deter- (ii) If action is not taken to prohibit mined in accordance with a Depart- the employment or activity, the DoD ment of Justice letter to the Director, employee is free to engage in the em- Office of Government Ethics, 14 that the ployment or activity in keeping with Department of Justice will not seek to other restrictions of this part. impose penalties for violations of 5 (h) Teaching, speaking and writing—(1) U.S.C. App. (Ethics in Government Act Disclaimer for speeches and writings de- of 1978, sec. 501); with respect to reseipt voted to agency matters. [The following of honoraria between September 26, is a General Order] A DoD employee 1993 and the date on which the Su- who uses or permits the use of his mili- preme Court issues its decision on this tary grade or who includes or permits matter. the inclusion of his title or position as one of several biographical details [59 FR 13214, Mar. 21, 1994, as amended at 60 FR 20030, Apr. 24, 1995] given to identify himself in connection with teaching, speaking or writing, in accordance with 5 CFR 2635.807(b)(1), Subpart D—Travel Benefits shall make a disclaimer if the subject § 84.11 Acceptance of official travel of the teaching, speaking or writing benefits in kind or payment for offi- deals in significant part with any ongo- cial travel expenses. ing or announced policy, program or (a) Acceptance from non-Federal operation of the DoD employee’s agen- sources—(1) Official travel. Official trav- cy, as defined in 5 CFR 3601.102(a), and el by DoD employees shall be funded by the DoD employee has not been author- the Federal Government except that ized by appropriate agency authority DoD components may accept official to present that material as the agen- travel benefits, including in kind sub- cy’s position. sistence and accommodations and pay- (i) The required disclaimer shall ex- ments or reimbursements of expenses, pressly state that the views presented from non-Federal sources as provided are those of the speaker or author and in this subpart of this part. do not necessarily represent the views (2) Personal travel. This subpart does of DoD or its components. not apply to travel benefits provided to (ii) Where a disclaimer is required for DoD employees in their personal capac- an article, book or other writing, the ities. However, DoD employees must disclaimer shall be printed in a reason- report such travel expenses when ap- ably prominent position in the writing propriate in accordance with subpart G itself. Where a disclaimer is required of this part. There may be limitations for a speech or other oral presentation, 13 See footnote 2 to § 84.4(d)(7). 12 See footnote 4 to § 84.7(d). 14 See footnote 2 to § 84.4(d)(7).

378 Office of the Secretary of Defense § 84.11 on acceptance of travel benefits in a detailed guidance as to the applicabil- personal capacity, including limita- ity and application of specific author- tions on acceptance from prohibited ity, these regulations should be con- sources, because of official position, sulted directly. and under 41 U.S.C. 423. (ii) Where the GSA travel regula- (3) Acceptance procedures. Any official tions, 41 CFR 301–1.2 and part 304, are travel benefits from non-Federal inconsistent with the JFTR and JTR, sources accepted by the travel approv- 41 CFR 301–1.2 and part 304 are the con- ing authority must be: trolling authorities. (i) Approved in writing by the travel (iii) A DoD component may not ac- approving authority with the advice of cept travel benefits from non-Federal the DoD employee’s Ethics Counselor; sources under any other gift accept- (ii) If accepted under the authority ance authority if 31 U.S.C. 1353 applies. granted by 31 U.S.C. 1353, approved in (iv) Payment guidelines. DoD employ- advance of travel. ees (or their spouses) shall not accept (4) Spousal travel. The travel approv- cash payments on behalf of the Federal ing authorities for travel of a spouse Government. accompanying a DoD employee on offi- (A) When travel benefits are paid for cial travel that is paid for or provided rather than provided in kind, payments in kind by a non-Federal source are as from the non-Federal source will be by follows: check or similar instrument made pay- (i) For DoD employees of OSD, De- able to the United States Treasury. fense Agencies and OSD Field Activi- Any such payment received by the DoD ties, the Executive Secretary, OSD; employee (or spouse) shall be submit- (ii) For DoD employees of Military ted with his travel voucher as soon as Departments, the Secretaries con- practicable. cerned or their designees; (iii) For DoD employees of the Chair- (B) The DoD employee shall exclude man of the Joint Chiefs of Staff and from his travel voucher any request for the Joint Staff, the United or Specified reimbursement for travel benefits fur- Commands, and the Combined Com- nished in kind by a non-Federal source mands and agencies, the Chairman of on the travel voucher to ensure that the Joint Chiefs of Staff, or his des- appropriate deductions are made in the ignee. travel, per diem, or other allowances (b) Acceptance of travel and related ex- payable by the United States. penses by a DoD component from non- (v) Reporting. Each travel-approving Federal sources—(1) Attendance at a authority designated by the DoD com- meeting or similar function (31 U.S.C. ponent Head to accept travel benefits 1353). from non-Federal sources shall submit (i) In accordance with 31 U.S.C. 1353 a report to the DoD component DAEO and GSA travel regulations, 41 CFR or designee semiannually on April 30 301–1.2 and part 304, Heads of DoD com- and October 31 to accommodate the re- ponents may accept travel benefits quired reporting to OGE on May 31 and from a non-Federal source incurred by November 30 each year. See JFTR, DoD employees in connection with Paragraph U7908 and JTR, Paragraph their attendance in an official capacity C4908 for details on what to report. at a meeting or similar function. The (2) DoD component gift acceptance stat- Joint Federal Travel Regulations 15 utes. In accordance with procedures es- (JFTR), Chapter 7, part W, Paragraphs tablished by those DoD components U7900–7908 (DoD Uniformed Services) with gift acceptance authority under 10 and Joint Travel Regulations 16 (JTR), U.S.C. 2601, travel benefits may be ac- Chapter 4, part Q, Paragraphs C4900– cepted by such DoD component Heads 4908 (DoD Civilian Personnel) imple- or their designees. ment 41 CFR 301–1.2 and part 304. For (i) This authority may not be used to accept travel benefits covered by 31 U.S.C. 1353. 15 For sale by Superintendent of Docu- ments, Congressional Sales Office, U.S. Gov- (ii) This authority may be used to ac- ernment Printing Office, Washington, DC cept, for example, reimbursement for 20402 travel benefits of flight crew members 16 See footnote 15 to § 84.11(b) that accompany Federal Government

379 § 84.12 32 CFR Ch. I (7–1–97 Edition) aircraft to international air shows or tion, award, or payment, only the orga- the expenses incurred by the attend- nization that selects the recipient and ance of DoD employees at ceremonial administers the funds from which the events in order to enhance a DoD com- contribution, award, or payment is ponent’s public relations. This author- made will be considered the source. ity may also be used to accept travel (4) Reporting. (i) Financial disclosure benefits offered after travel has begun reporting individuals must report ac- or has been completed. ceptance of these travel benefits if the (3) DoD component DAEO or designee fair market value of those benefits approval. Acceptance of official travel reaches the reportable amount. benefits from non-Federal sources de- (ii) Travel benefits accepted under 5 scribed in § 84.11(b)(1) and (2) requires U.S.C. 4111 shall be reported by the the concurrence of the DoD component travel-approving authority directly to DAEO or designee. the DoD component DAEO or designee (c) Acceptance of contributions, awards within 30 days after completion of trav- and other payments by DoD employees el. These reports shall include, at a from tax-exempt organizations (5 U.S.C. minimum, the information required for 4111)—(1) Applicability. Military mem- the semiannual reports by the JFTR, bers are permitted to accept contribu- Paragraph U7908 and JTR, Paragraph tions, awards and other payments the C4908. same as civilian DoD employees in ac- (d) Receipt and disposition of foreign cordance with the requirements of this gifts and decorations (5 U.S.C. 7342). DoD section. employees may accept travel and trav- (2) Conditions for acceptance. Except el-related expenses from a foreign gov- when acceptance is permitted under 5 ernment in accordance with 32 CFR CFR 2635.204(d), DoD employees are part 95. permitted to accept contributions, [59 FR 13214, Mar. 21, 1994, as amended at 60 awards and other payments directly FR 20030, Apr. 24, 1995] from non-Federal sources only when all of the following conditions are met: § 84.12 DoD guidance. (i) The source is tax-exempt organi- (a) Acceptance of incidental benefits. zation described by 26 U.S.C. 501(c)(3) There are two basic principles DoD em- or a State or local government (see 5 ployees must consider in determining CFR part 410, subpart G); whether they may accept benefits of- (ii) The contribution, award, or pay- fered incident to their official travel. ment of travel benefits is incidental to See DoD travel rules (e.g., DoD Direc- training in non-Federal Government tive 4500.9 17). facilities or attendance at a meeting; (1) Federal Government property. Any- (iii) An appropriate deduction is thing that does not fall within a gift made from any payment by the Federal exception or exclusion under 5 CFR Government to the DoD employee for part 2635, subpart B, or 5 CFR 3601.101– their official travel entitlement; 3601.108, which is received by a DoD (iv) The contribution, award, or pay- employee as a result of official travel, ment is not a reward for services to the belongs to the Federal Government, re- non-Federal source; gardless of the source of the funding. (v) Acceptance of the contribution, (i) Travel coupons, tickets, pro- award or payment would not reflect motional items of more than nominal unfavorably on the DoD employee’s value, frequent flyer mileage credits, ability to perform his duties in a fair and most other benefits received by and objective manner, nor otherwise DoD employees from non-Federal compromise the integrity of any Fed- sources (e.g., airlines, rental car com- eral Government action; and panies, hotels) incident to their official (vi) The travel approving authority travel belong to the Federal Govern- approves the acceptance of the con- ment. They may not be used for per- tribution, award or payment in writ- sonal purposes. ing. (ii) If possible, such benefits will be (3) Payments from multiple sources. turned over to the appropriate official. When more than one organization participates in making a single contribu- 17 See footnote 4 to § 84.7(d).

380 Office of the Secretary of Defense § 84.12

See JFTR, Paragraph U2010B, JTR, airline seat upgrade to first class, a Paragraph C1200, 41 CFR part 301 and 41 luxury rental car in place of a compact, CFR 101–25.103. or a hotel room with a view instead of (2) Gifts from outside sources. Benefits an interior room, for official use as offered to a DoD employee from a non- long as there is no extra charge to the Federal source incident to official trav- Federal Government to obtain the up- el that cannot be used for official pur- grade (see 5 CFR 2635.204(c)), subject to poses must be treated as gifts to the the following: DoD employee. DoD employees may (i) On the spot upgrades. DoD employ- not accept such gifts if acceptance ees may accept an upgrade offered on would violate 5 CFR part 2635, subpart the spot under circumstances in which B. such upgrades are generally available (b) Examples of benefits considered Fed- eral Government property—(1) Frequent to the public or at least to all Federal flying mileage credits. Frequent flyer Government employees or all military mileage credits earned as a result of of- members. For example, a travel com- ficial travel are the property of the pany may provide upgrades to remedy Federal Government. They shall not be overbooking or overcrowding, due to a used except in connection with official shortage of smaller cars, or simply for travel. Credits are used in connection customer relation purposes; or up- with official travel either by redeeming grades may be offered to all military them for airline tickets which are used members in uniform. No upgrade may for official travel or by using them for be accepted, however, if it is provided travel upgrades while on official travel on the basis of the DoD employee’s (e.g., airline seat upgrades, rental car grade or position. Upgrades resulting upgrades, hotel upgrades). First consid- from involuntary ‘‘bumping’’ while on eration should be given to the former. official travel may not be used for per- When mileage credits for official and sonal travel. See 5 CFR 2635.202(a)(2); personal travel have been commingled (ii) Use of upgrade certificates (other in the same account, only those credits than those obtained for frequent flyer or points that clearly can be shown to miles). Some travel companies distrib- have been derived from personal travel ute coupons for free travel upgrades as may be used for future personal travel. a promotional offer. DoD employees All other points in the account belong may accept and use such coupons if to the Federal Government. they are realistically available to the (2) Other awards to users of travel services. Travel companies sometimes give general public (e.g., widely available away merchandise, or award points to- coupons usable by bearer) or to all Fed- ward merchandise or other prizes, to eral Government employees or all mili- users of their services. If the travel tary members (e.g., coupons available services used are paid for by the Fed- to any Federal Government employee eral Government, any resulting award for official travel). DoD employees may belongs to the Federal Government not use coupons provided on the basis (e.g., if a DoD employee renting a car of their grade or position. for official business is offered either a (2) ‘‘Gold card’’ and similar member- calculator or points toward a larger ships. Certain airlines offer special ben- prize, both would belong to the Federal efits, including free upgrades, to mem- Government). bers of their traveler incentive pro- (c) Examples of benefits treated as gifts grams (e.g., Gold card, Key Club, etc.). to an individual—(1) Travel upgrades. Membership in these programs ordi- Travel upgrades are commonly offered narily is earned by accumulating a for such travel accommodations as air- large number of travel miles during the line seats, rental cars, and hotel rooms. current calendar year, or in some Some travel upgrades are given on the cases, memberships may be purchased. spot without any prearranged entitle- DoD employees who obtain eligibility ment. Others are provided pursuant to under these circumstances (i.e., by pur- some prearranged entitlement, such as chasing a membership with their per- a coupon. DoD employees on official travel may accept benefits such as an sonal funds or by accumulating the

381 § 84.13 32 CFR Ch. I (7–1–97 Edition) necessary miles, even by official trav- § 84.13 Procedures and responsibil- el) may accept the membership and re- ities. sulting benefits, including travel up- (a) The travel-approving authority grades. If membership in the program shall: is offered to DoD employees who have (1) Approve or disapprove acceptance not met the usual requirements for of travel benefits in kind or payments membership, however, primarily be- of travel expenses from non-Federal cause of the DoD employee’s grade or sources in accordance with § 84.11 (c) position, neither the membership nor and (d); its benefits may be accepted. (2) Acquire the concurrence of the (3) Prizes in ‘‘open’’ and ‘‘closed’’ con- DoD component DAEO or designee test. When travel companies and relat- when approving travel benefits in ac- ed organizations offer prizes in a com- cordance with the conflict of interest petition that is open to the general analysis required by 41 CFR 304–1.5; public, so that no one must perform of- (3) Prepare and submit a report to ficial travel to win, a DoD employee the DoD component DAEO or designee may keep any prize he wins, even if he reporting all travel benefits over $250 happened to enter the contest only be- accepted in accordance with the au- cause of official travel (e.g., a DoD em- thority granted under 31 U.S.C. 1353 as ployee flying on official business re- implemented in § 84.11(b); ceives the winning entry blank in an (4) Prepare and submit a report to airline’s contest while on the flight, the DoD component DAEO or designee but individuals not using the airline within 30 days after completion of trav- will be given the entry blank on reel during which travel benefits have quest). Some travel companies and re- been paid by non-Federal sources under lated organizations offer prizes in con- 5 U.S.C. 4111. See § 84.11(c)(3). nection with official travel. The prize (b) Each DoD component DAEO or des- usually is given as a result of a draw- ignee shall: ing or some kind of contest. If competi- (1) Prepare and submit semiannual tion for a prize is limited to individuals reports to OGE on acceptance of pay- using a certain kind of travel accom- ments under 31 U.S.C. 1353 due May 31 modation, which in the case of the DoD and November 30 each year. See § 84.11(b)(1)(v); employee is paid for by the Federal Government, any prize won belongs to (2) Retain reports from the travel-approving authority under 5 U.S.C. 4111 the Federal Government (e.g., an air- for two years. See § 84.11(c)(4); line provides contest entry blanks only (3) Provide written concurrence for to passengers on its planes, and the the approval of travel benefits in ac- DoD employee receives the winning cordance with the conflict of interest entry blank while flying on official analysis required by 41 CFR 304–1.5. travel). (c) Each traveling DoD employee shall: (4) Incentives for voluntary surrender of (1) Provide all necessary information flight reservations. DoD employees may to the travel approving authority for a keep payments or free tickets received semiannual report to the DoD compo- from a carrier for voluntarily giving up nent DAEO; a seat on an overbooked flight. DoD (2) Turn in any merchandise, fre- employees on official travel may not quent flyer miles or other benefits as voluntarily surrender their seats if the required under § 84.12(a). resulting delay would interfere with the performance of duties. The delay Subpart E—Conflicts of Interest may not increase the cost to the Fed- eral Government. Therefore, travel § 84.14 Office of Government Ethics vouchers should disclose the voluntary Regulation. surrender and resulting delays and (a) See 5 CFR part 2639, ‘‘Interpreta- leave must be taken as appropriate. tion of 18 U.S.C. 209’’ [59 FR 13214, Mar. 21, 1994, as amended at 60 (b) See 5 CFR part 2640, ‘‘Interpreta- FR 20030, Apr. 24, 1995] tion of 18 U.S.C. 208’’

382 Office of the Secretary of Defense § 84.15

§ 84.15 Guidance on 18 U.S.C. 208. be deemed likely to affect the integrity (a) Conflicts and appearance of con- of the services that the Federal Gov- flicts under 18 U.S.C. 208. See 5 CFR part ernment may expect from the DoD em- 2635, subpart D and subpart E, OGE ployee include: opinions (which are available for pur- (i) The extent to which the DoD em- chase from the U.S. Office of Govern- ployee’s exercise of authority and re- ment Ethics, 1201 New York Avenue, sponsibility can affect his interest; NW., suite 500, Washington, DC 20005– (ii) The relative importance of the in- 3917), and 5 CFR 3601.105 for provisions terest in the DoD employee’s life or fi- on conflicts of interest under 18 U.S.C. nances; 208. (iii) The potential for harm to the (b) Applicability to enlistees. The provi- Federal Government and to the DoD sions of 18 U.S.C. 208 and related provi- employee if the DoD employee’s inter- sions of OGE regulations do not apply ests influence his decision-making; to enlisted members. However, provi- (iv) How the situation would appear sions similar to 18 U.S.C. 208 do apply to an informed public; to enlisted members as follows: [The (v) The nature of the relationship be- following is a General Order] except as tween the DoD employee and the indi- approved by the DoD component DAEO vidual who has the interest concerned. or designee, an enlisted member, in- (3) In order to pursue an individual cluding an enlisted special Government waiver under 18 U.S.C. 208(b)(1) the fol- employee, shall not participate person- lowing steps are mandatory: ally and substantially as part of his of- (i) Before a waiver is requested, con- ficial DoD duties, in any particular sideration should first be given to al- matter in which he, his spouse, minor ternative resolutions, such as disquali- child, partner, entity in which he is fication, divestiture, reassignment, or serving as officer, director, trustee, rearrangement of duties. Individual partner or employee or any entity with waivers are to be considered only when which he is negotiating or has an ar- all alternatives have been exhausted. rangement concerning prospective em- The supervisor should also consider, ployment, has a financial interest [end with the advice of the Ethics Coun- of General Order]. selor, whether a potential violation of (c) Waiver of 18 U.S.C. 208(a). Pursu- 18 U.S.C. 208(a) exists. See paragraph ant to 18 U.S.C. 208(b), application of 18 (d) of this section. Even if the interests U.S.C. 208(a) may be waived. are insubstantial, consideration should (1) The regulatory waivers for DoD be given to whether the particular under 18 U.S.C. 208(b)(2) have been pre- matter will have a direct and predict- served and are reprinted as follows (see able effect on the financial interest. 5 CFR 2635.402(d)); See 5 CFR 2635.402(b)(1); (i) For civilian DoD components, (ii) A request for a waiver shall be such waivers appear in Appendix B to forwarded through the chain of com- this part; (ii) For the Department of the Army, mand or supervision to the DoD compo- such waivers appear in Appendix B to nent DAEO. The DoD component DAEO this part; shall consult, if practicable, on the ac- (iii) For the Department of the Air tion with OGE; Force, such waivers appear in Appendix (iii) Pending the approval of the B to this part; waiver, the DoD employee shall be dis- (iv) For the Department of the Navy, qualified from participation in the par- such waivers appear in Appendix B to ticular matter that will have an effect this part. on the financial interest; (2) Application of 18 U.S.C. 208(a) may (iv) The waiver request shall include be waived for individuals when a finan- the Ethics Counselor’s findings of fact cial interest is not so substantial as to on the following: be likely to affect the integrity of the (A) The manner in which the finan- services that the Federal Government cial interest was acquired; may expect from the DoD employee. (B) The purpose behind the DoD em- Considerations in determining whether ployee’s acquisition of the interest; the interest is not so substantial as to (C) The dollar value of the interest;

383 § 84.16 32 CFR Ch. I (7–1–97 Edition)

(D) The potential amount by which promising, demanding, seeking, receiv- the DoD employee’s official actions ing, accepting, or agreeing to accept may affect the financial interest; anything of value for or because of any (E) The degree to which the DoD em- official act performed or to be per- ployee has control over official actions formed, or for or because of any testi- which may affect the non-Federal en- mony given or to be given before an in- tity; dividual or non-Federal entity author- (F) The size of the non-Federal entity ized to hear evidence or take testimony and the degree to which official actions [end of General Order]. See 18 U.S.C. may affect the non-Federal entity; 201(c). (G) The value of the financial inter- (3) These prohibitions do not apply to est in relation to the DoD employee’s the payment or receipt of witness fees net worth and income from other authorized by law, certain travel and sources; subsistence expenses to appear as a (H) The degree to which the DoD em- witness and value of time lost in at- ployee has control over the financial tendance at a trial, hearing, or pro- interest, and whether it is capable of ceeding. Other prohibitions may apply. being divested. See 18 U.S.C. 201(d); 5 U.S.C. 5515 and (4) By statute, authority to grant 18 5751 and paragraph 66 of part IV, MCM, U.S.C. 208(b)(1) waivers rests with the 1984 (10 U.S.C. 801–940). DoD official responsible for the DoD (b) Compensation related to matters employee’s appointment. By Executive pending Government decision. OGE inter- Order 12674, that authority shall not be pretation of prohibitions under 18 exercised without prior consultation, if U.S.C. 203 appear in 5 CFR practicable, with OGE. The DoD com- 2635.801(d)(3). These prohibitions do not ponent DAEO shall consult with OGE apply to enlisted members. A DoD em- regarding the waiver on behalf of the ployee whose salary is not tied to the DoD official responsible for the DoD profitability of the non-Federal enti- employee’s appointment. ty’s Federal Government contracts (d) Resolution of conflicts. Resolution of actual or apparent conflicts of inter- does not violate this statute. See OGE 18 est is the responsibility of the head of opinion 86x9 (informal). This statute the DoD component command or orga- prohibits receiving compensation for nization. An Ethics Counselor should any representation, including those be consulted about alternatives for res- where there is no intent to be cor- olution. See subpart J of this part for rupted or to provide preferential treat- enforcement information. ment. Representations can be either oral or written. § 84.16 Other conflict of interest laws. (1) The prohibition does not apply to (a) Bribery and graft. (1) [The follow- a DoD employee’s representation of ing is a General Order] All DoD em- himself, but this exception does not ex- ployees are prohibited from, directly or tend to the representation of a dis- indirectly, giving, offering, promising, tinct, legal, non-Federal entity as a demanding, seeking, receiving, accept- corporation, a partnership, or even a ing, or agreeing to receive anything of sole proprietorship. 18 U.S.C. 203(a)(2) value to influence any official act, to prohibits an offer or payment of com- influence commission of fraud on the pensation, the solicitation or receipt of United States, to induce committing or which is otherwise barred. omitting any act in violation of a law- (2) The prohibitions apply to special ful duty, or to influence testimony Government employees but only in re- given before an individual or non-Fed- lation to a particular matter involving eral entity authorized to hear evidence a specific party or parties in which the or take testimony [end of General special Government employee partici- Order]. See 18 U.S.C. 201(b). pated personally and substantially or, (2) [The following is a General Order] absent such participation, if he served DoD employees are also prohibited, except as provided by law for the proper 18 Copies are available from Office of Gov- discharge of official duties, from, di- ernment Ethics, 1201 New York Avenue NW., rectly or indirectly, giving, offering, Suite 500, Washington, DC 20005–3917.

384 Office of the Secretary of Defense § 84.16 more than a total of 60 days in the pre- ceeding, application, request for a rul- ceding 365 days, in relation to any paring or other determination, contract, ticular matter pending in the DoD claim, controversy, investigation, agency. charge, accusation, arrest, or other (3) 18 U.S.C. 203 does not prohibit giv- particular matter. ing testimony under oath or making (2) Exceptions. The following are ex- statements required to be made under cluded from the scope of 18 U.S.C. 205: penalty of perjury. (i) Giving testimony under oath or (4) 18 U.S.C. 203 does not prohibit rep- making statements required to be resentation, with or without compensa- made under penalty of perjury or rep- tion, of one’s parents, spouse, child, or resenting another person, with or with- any person or estate the DoD employee out compensation, in a disciplinary, serves as administrator, guardian or loyalty, or other personnel administra- other personal fiduciary. This exemption proceeding; tion is permitted only if approved by (ii) Representing, with or without the DoD official responsible for ap- compensation, one’s parents, spouse, pointing the DoD employee to his DoD child, or a person estate the DoD em- position. The exemption may not be ex- ployee serves as a fiduciary, but only if tended to the DoD employee’s represen- approved by the DoD official respon- tation of any such person in matters in sible for appointing the DoD employee which the DoD employee has officially to this DoD position. This exception participated personally and substan- does not apply to matters in which the tially or in matters which, even absent DoD employee has participated person- such participation, are the subject of ally and substantially or which, in the his official responsibility. absence of such participation, are the (5) The head of a department or agen- subject of his official DoD responsibil- cy may authorize a special Government ity; employee to represent his regular em- (iii) The head of a department or ployer or other outside organization in agency may allow a special Govern- the performance of work under a Fed- mental employee to represent his regu- eral Government grant or contract if lar employer or other outside organiza- the department or agency head cer- tion in the performance of work under tifies and publishes the certification in a Federal Government grant or con- the FEDERAL REGISTER that the na- tract if the department or agency head tional interest requires such represen- certifies and publishes the certification tation. in the FEDERAL REGISTER that the na- (c) Contracts with DoD employees. Con- tional interest requires such represen- tracts for the procurement of goods tation; and services between the Federal Gov- (iv) For special Government employ- ernment and its employees are prohib- ees, the prohibitions apply only to cov- ited unless the needs of the Federal ered matters in which they partici- Government cannot otherwise be met. pated personally and substantially as a See 48 CFR 3.601 and 3.602. special Government employee. Absent (d) Representation of others—(1) Prohi- such participation, the prohibitions bition under 18 U.S.C. 205. 18 U.S.C. 205 apply only if he served more than a prohibits DoD employees, other than total of 60 days during the preceding enlisted members, whether or not they 365 days and the covered matter was are employed for compensation, from pending in the DoD agency during that personally acting as an agent or attor- period. ney for anyone else before a depart- (e) Compensation from other sources. (1) ment, agency, or court in connection The provisions of 18 U.S.C. 209 and re- with any covered matter in which the lated provisions of OGE regulations do United States is a party or has a direct not apply to enlisted members. How- and substantial interest or from pros- ever, provisions similar to 18 U.S.C. 209 ecuting any claim against the Federal do apply to enlisted members as fol- Government or receiving any gratuity lows: [The following is a General Order] or interest in such claim for assistance an enlisted member, except an enlisted in prosecuting the claim. Covered mat- special Government employee, shall ter means any judicial or other pro- not receive any salary or

385 § 84.16 32 CFR Ch. I (7–1–97 Edition) supplementation of his Federal Govern- a military member may have leisure ment salary, from any entity other hours during which no official duty is than the Federal Government or as performed does not alter the result. may be contributed out of the treasury See 52 Comp. Gen. 471 and 22 Comp. of any State, county, or municipality, Gen. 127, 149. for his services to the Federal Govern- (2) 5 U.S.C. 5536 applies to enlisted ment [end of General Order]. members and precludes enlisted mem- (2) 18 U.S.C. 209 prohibits DoD em- bers from supplementing their official ployees from receiving pay or allow- salaries from outside sources for per- ances or supplements of pay or benefits forming their official duties. from any source other than the United (g) Interference with military duties. States for the performance of official Military officers on active duty (except service or duties unless specifically au- while on terminal leave) may not ac- thorized by law. Note that a task or job cept employment if it requires separa- that is performed outside normal work- tion from their organization, branch, ing hours does not necessarily allow or unit, or interferes with the perform- acceptance of payment for performing ance of military duties. See 10 U.S.C. it. If the undertaking is part of one’s 973(a). official duties, pay for its performance (h) Civil office prohibition. Regular may not be accepted from any source military officers on the active duty list other than the United States regard- and retired regular military officers on less of when it was performed. active duty from more than 180 days (3) A DoD employee may continue to may not hold civil office, unless ex- participate in bona fide pension, retire- pressly authorized by law. See 10 U.S.C. ment, insurance, bonus, or other em- 973(b). ployee welfare or benefit plan main- (i) Assignment of reserves for training. tained by his former employer. See 18 (1) Personnel who assign reserves for U.S.C. 209(b). training shall not assign them to du- (4) Reserve military officers and cer- ties in which they will obtain informa- tain temporarily commissioned mili- tion that they or their private employ- tary officers who are ordered to active ers may use to gain unfair advantage duty may continue to receive com- over competitors. Reservists must dis- pensation from individuals who fur- close to superiors and assignment per- nished compensation to them prior to sonnel information necessary to ensure being ordered to active duty. See 10 that no conflict exists between their U.S.C. 1033 and 50 U.S.C. App. 454(f). duty assignment and their private in- (f) Additional pay or allowances. [The terests. following is a General Order] DoD em- (2) Commanders, or their designees, ployees may not receive additional pay shall screen Reservists performing or allowances for disbursement of pub- training to ensure that no actual or ap- lic money or for the performance of parent conflict exists between their any other service or duty unless spe- private interests and their duty assign- cifically authorized by law. See 5 ment. While Reservists have an affirm- U.S.C. 5536 [end of General Order]. ative obligation under this rule to dis- (1) 5 U.S.C. 5536 precludes extra pay close material facts in this regard, re- from the Federal Government for the ceiving commands cannot assume com- performance of official duties. Subject pliance and shall independently screen to certain limitations, civilian DoD incoming personnel to avoid conflicts employees may hold two distinctly dif- of interests. ferent Federal Government positions (j) Commercial dealings involving DoD and receive the salaries of both if the employees. [The following is a General duties of each are performed. Absent Order] A DoD employee shall not specific authority, however, military knowingly solicit or make solicited member may not do so because any ar- sales to DoD personnel who are junior rangement by a military member for in rank, grade or position, or to the rendering services to the Federal Gov- family members of such personnel, on ernment in another position is incom- or off duty. In the absence of coercion patible with the military member’s ac- or intimidation, this does not prohibit tual or potential military duties. That the sale or lease of a DoD employee’s

386 Office of the Secretary of Defense § 84.18 non-commercial personal or real prop- that conflict with official duties. See 5 erty or commercial sales solicited and CFR 2635.802. made in a retail establishment during (4) There are limitations on certain off-duty employment. The posting of outside activities such as receipt of an advertisement in accordance with outside earned income by certain DoD Federal Government building manage- Presidential appointees or non-career ment policies does not constitute solic- DoD employees, service as an expert itation for purposes of this section [end witness, participation in professional of General Order]. associations, teaching, writing, speak- (1) [The following is a General Order] ing, or fundraising. See 5 CFR 2635.804– This prohibition includes the solicited 2635.808. sale of insurance, stocks, mutual funds, (5) There is a prohibition on the re- real estate, cosmetics, household sup- ceipt of honoraria. See 5 CFR part 2636. plies, vitamins, and other goods or (6) There are prohibitions on the mis- services [end of General Order]. use of official position such as im- (2) [The following is a General Order] Both the act of soliciting and the act of proper endorsements or improper use of selling as a result of soliciting are pro- non-public information. See 5 CFR hibited. In both cases, however, a solic- 2635.701–2635.705. itation is necessary for a violation to (7) There are prohibitions on certain occur. While the standard prohibits a post-Government service employment. senior from making a solicited sale to See subpart I of this part. a junior or to the junior’s family, sales [59 FR 13214, Mar. 21, 1994. Redesignated and made because a junior approaches the amended at 60 FR 20030, Apr. 24, 1995] senior and requests the sale to be made are not prohibited, absent coercion or intimidation by the senior [end of Gen- Subpart F—Political Activities eral Order]. § 84.17 Office of Personnel Manage- (3) Personal commercial solicitations ment regulation. by the spouse or other household member of a DoD employee to those who are See 5 CFR part 734, ‘‘Political Activi- junior in rank, grade, or position to the ties of Federal Employees.’’ DoD employee, may give rise to the ap- [59 FR 13214, Mar. 21, 1994, as amended at 60 pearance that the DoD employee him- FR 20030, Apr. 24, 1995] self is using his public office for personal gain. When a spouse or household § 84.18 Political activities of civilian member of a DoD employee engages in DoD employees. such activity, the supervisor of the (a) Policy. DoD employee must consult an Ethics (1) The policy governing the political Counselor, and counsel the DoD em- activities of civilian DoD employees is ployee that such activity should be derived from the Hatch Act Amend- avoided where it may: ments, 5 U.S.C. 7321 through 7325. Guid- (i) Cause actual or perceived partial- ance on the application of the Hatch ity or unfairness; Act Amendments is provided by the (ii) Involve the actual or apparent use of rank or position for personal Hatch Act Hotline at the Office of Spe- gain; or cial Counsel at 1–(800) 854–2824. (iii) Otherwise undermine discipline, (2) Primary enforcement responsibil- morale, or authority. ity under the Hatch Act Amendments (k) Related rules. (1) There is a prohi- lies with the Office of Special Counsel bition on holding conflicting financial under 5 U.S.C. 1216(c); however, DoD interests. See 5 CFR 2635.403, 18 U.S.C. Components have responsibility to in- 208, and 5 CFR part 2640. vestigate allegations of prohibited po- (2) There are requirements regarding litical activity by excepted service em- seeking outside employment. See 5 ployees of the DoD Component. CFR 2635.601–2635.606 and subpart H of (3) It is DoD policy to encourage ci- this part. vilian DoD employees and members of (3) There is a prohibition on engaging the Armed Forces to carry out the obli- in outside employment or activities gations of citizenship to the maximum

387 § 84.18 32 CFR Ch. I (7–1–97 Edition) extent possible consistent with the re- are confirmed by and with the consent strictions imposed by law and by this of the Senate) are prohibited from en- part. gaging in the activities described in (b) Permissible activities. Subject to paragraphs (a)(11) through (a)(14) of paragraphs (b) and (c) of this section, this section: civilian DoD employees may, in their (i) Employees of the National Secu- personal capacities: rity Agency; (1) Be candidates for public office in (ii) Employees of the Defense Intel- nonpartisan elections; ligence Agency; (2) Register and vote as they choose; (iii) Career members of the senior ex- (3) Assist in voter registration drives; ecutive service; (4) Express opinions about candidates (iv) Administrative Law Judges; and and issues; (v) Contract appeals board members. (5) Contribute money to political or- (d) Prohibited activities. Civilian DoD ganizations; employees may not: (6) Attend political fundraising func- (1) Use official authority or influence tions; for the purpose of interfering with or (7) Attend and be active at political affecting the result of an election; rallies and meetings; (2) Collect political contributions un- (8) Join and be an active member of a less both the collector and the donor political party or club; are members of the same Federal labor (9) Sign nominating petitions; organization or employee organization (10) Campaign for or against referen- and the donor is not a subordinate; dum questions, constitutional amend- (3) Knowingly solicit or discourage ments, or municipal ordinances; the political activity of any person who (11) Campaign for or against can- has business with DoD; didates in partisan elections (see para- (4) Engage in political activity while graph (b)(3) of this section); on duty; (12) Make campaign speeches for can- (5) Engage in political activity while didates in partisan elections (see para- in any Federal workplace; graph (b)(3) of this section); (6) Engage in political activity while (13) Distribute campaign literature in wearing an official uniform or display- partisan elections (see paragraph (b)(3) ing official insignia identifying the of- of this section); fice or position of the DoD employee; (14) Hold office in political clubs or (7) Engage in political activity while parties (see paragraph (b)(3) of this sec- using a Government owned or leased tion). vehicle; (c) Limitations. (8) Solicit political contributions (1) Military members are not covered from the general public; by the Hatch Act Amendments, 5 (9) Be a candidate for public office in U.S.C. 7321 through 7327. Political ac- partisan elections; tivities of Military members are cov- (10) Wear political buttons on duty; ered in § 84.19. (11) Contribute to the political cam- (2) Notwithstanding paragraph (a) of paign of another Federal Government this section, as a matter of longstand- employee who is in the DoD employee’s ing DoD policy, DoD employees who chain of command or supervision or are appointed by the President, by and who is the employing authority, in- with the advice and consent of the Sen- cluding the political campaign to re- ate (e.g. the Secretary of Defense, the elect the President or Vice President. Secretaries of the Military Depart- (e) DoD employees residing in des- ments, etc.), and DoD employees who ignated localities. Notwithstanding the are appointed by the Secretary of De- prohibitions of paragraph (c) of this fense to non-career Senior Executive section, a DoD employee (except those Service positions may not engage in DoD employees listed in paragraph activities that could be interpreted as (b)(3) of this section) who resides in a associating the DoD with any partisan municipality or political subdivision, political cause or issue. either in the immediate vicinity of the (3) The following DoD employees (ex- District of Columbia or in which the cept for Presidential appointees who majority of voters are employed by the

388 Office of the Secretary of Defense § 84.20

Federal Government, as designated by (i) It is pursuant to a request or re- OPM under 5 CFR 733.102(d) may: quirement of the DoD Component and (1) Run as an independent candidate consists solely of an evaluation of the for election to a partisan political of- work performance, ability, aptitude, fice in an election for local office of the and general qualifications of the DoD municipality or political subdivision employee or applicant; provided the candidacy for, and service (ii) It relates solely to the character in, the partisan political office shall and residence of the DoD employee or not result in neglect of, or interference applicant; with, the performance of the duties of (iii) It is furnished pursuant to a re- the DoD employee or create an actual quest made by an authorized represent- or apparent conflict of interest; and ative of the Government of the United (2) Accept or receive political con- States solely in order to determine tributions in connection with a local whether the DoD employee or appli- election of the municipality or politi- cant meets suitability or security cal subdivision provided the DoD em- standards; ployee does not solicit political con- (iv) It is furnished by a former em- tributions from the general public. ployer of the DoD employee or appli- (f) Political recommendations. cant pursuant to a request of an agen- (1) The restrictions of 5 U.S.C. 3303 cy, and consists solely of an evaluation apply to all personnel actions described of the work performance, ability, apti- in 5 U.S.C. 2302(a)(2)(A) (i) through (x) tude, and general qualifications of such for individuals in or applicants to the DoD employee or applicant during em- following DoD positions: ployment with such former employer; (i) Competitive service employees; or (ii) Career appointees in the Senior (v) It is furnished pursuant to a pro- Executive Service; and vision of law or regulation authorizing (iii) Excepted service employees consideration of such statement with other than one who is appointed by the respect to a specific position or cat- President or whose position has been egory of positions. determined to be of confidential, pol- (4) DoD Component Heads are re- icy-determining, policy-making, or pol- quired by 5 CFR 300.801 to ensure that icy-advocating character. DoD employees and applicants de- (2) Each personnel action with re- scribed in paragraph (c)(1) of this sec- spect to a DoD employee or applicant, tion are notified of the provisions of 5 as described in paragraph (c)(1) of this U.S.C. 3303. section, shall be taken without regard [60 FR 20030, Apr. 24, 1995] to any recommendation or statement, oral or written, made by the following § 84.19 Political activities of military types of individuals: members. (i) Members of Congress or Congres- See DoD Directive 1344.10 20, ‘‘Politi- sional employees; cal Activities by Members of the (ii) Elected officials of any State (in- Armed Forces on Active Duty,’’ June cluding the District of Columbia and 15, 1990. the Commonwealth of Puerto Rico), county, city, or other subdivision [59 FR 13214, Mar. 21, 1994, as amended at 60 thereof; FR 20030, Apr. 24, 1995] (iii) Officials of political parties; or (iv) Other individuals or organiza- Subpart G—Financial and tions making such recommendations or Employment Disclosure statements on the basis of the party af- filiations of the DoD employee or ap- § 84.20 Office of Government Ethics plicant recommended. regulation. (3) DoD employees may solicit, ac- See 5 CFR part 2634, ‘‘Financial Dis- cept, and consider any statement with closures, Qualified Trusts, and Certifi- respect to a DoD employee or applicant cates of Divestiture for Executive described in paragraph (c)(1) of this Branch Employees’’. section if the statement meets one of the following conditions: 20 See footnote 4 to § 84.7(d).

389 § 84.21 32 CFR Ch. I (7–1–97 Edition)

§ 84.21 Public financial disclosure re- duties of the position for more than 60 port (SF–278). days in a calendar year, an SF 278 shall (a) Individuals required to file—(1) Cov- be filed within 15 days after the 61st ered positions. For purposes of this sec- day of duty. tion, the following individuals are in (4) Exclusion. The Director, OGE, may ‘‘covered positions’’ and are required exclude an individual who is in a cov- by the Ethics in Government Act of ered position under paragraph (a)(1)(v) 1978, Public Law 95–521 (5 U.S.C. App.) of this section from the requirement to to file an SF 278, with their DoD com- file an SF 278 in accordance with 5 CFR ponent DAEO or designee as set out in 2634.203. paragraph (f) of this section: (b) Information on covered positions. (i) Civilian Presidential appointees; The directors of DoD component per- (ii) Regular and reserve military offi- sonnel offices are responsible for pro- cers whose pay grade is 0–7 or above; viding the following information to (iii) Members of the Senior Executive their DoD component DAEOs or des- Service; ignees: (iv) Other civilian DoD employees, (1) The name, position, grade, organi- including special Government employ- zation and entrance-on duty or termi- ees, whose positions are classified nation date of each individual assigned above GS/GM–15 prescribed by 5 U.S.C. to the DoD component who is required 5332 or civilian DoD employees under to file a new entrant or termination SF other pay systemswhose rate of basic 278 immediately upon the appointment pay is fixed at or above 120% of the of the individual to a position requir- minimum rate of basic pay for a GS/ ing filing, or upon receipt of an SF 52, GM–15; ‘‘Request for Personnel Action,’’ Au- (v) DoD employees in the excepted gust 1988, requesting approval of the re- service in positions that are of a con- tirement, resignation, or removal of fidential or policy-making character the individual from such a position; unless they have been excluded by the (2) By January 10 of each year, the Director, OGE. See paragraph (a)(4) of name, position, grade, and organization this section; (vi) Individuals serving by appoint- of each individual assigned to the DoD ment under the Intergovernmental component who is required to file an Personnel Act, from State or local gov- annual SF 278. ernments, institutions of higher edu- (c) Notification of requirement to file. cation or other eligible organizations. Each DoD component DAEO or des- See 5 U.S.C. 3371–3376; ignee shall provide appropriate notices (vii) Civilian individuals who are de- and instructions to all reporting indi- tailed to positions described in para- viduals to ensure the timely prepara- graphs (a)(1)(iii) through (a)(1)(v) of tion of the reports and submission to this section; supervisors and Ethics Counselors for (viii) DoD component DAEOs. review and filing. (2) Waiver. An individual otherwise (d) Time of filing—(1) Nomination re- required to file an SF 278 but who now ports. (i) Any time after public an- is expected to perform the duties of a nouncement but within five days after covered position for less than 130 days transmittal by the President to the in a calendar year, may request a waiv- Senate of the nomination of an individ- er of any or all reporting requirements ual to a civilian DoD position that re- from the Director, OGE, in accordance quires the advice and consent of the with 5 CFR part 2634. Senate, the DoD component DAEO (3) Exception. An individual who is shall ensure the nominee’s SF 278 is nominated to or assumes a covered po- filed with the appropriate authorities. sition is not required to file an SF 278 (ii) The report shall contain the in- if the Secretary concerned or the DoD formation prescribed in the ‘‘Instruc- component DAEO determines that the tions for Completing SF 278’’ attached individual is not reasonably expected to the SF 278. These reports shall be to perform the duties of the position certified by the DoD component DAEO, for more than 60 days in a calendar and processed as prescribed by OGE year. If such individual performs the regulation, 5 CFR part 2634.

390 Office of the Secretary of Defense § 84.21

(iii) Unless otherwise required by the vidual to the DoD component DAEO or Senate, nomination reports are not re- designee. The request shall contain a quired of individuals nominated to po- clear statement of the reasons for the sitions as military officers. Such indi- request and shall be submitted in ad- viduals must file new entrant reports vance of the original filing deadline. as prescribed in the following. Requests for additional time beyond (2) New entrant reports. (i) Within 30 the initial 45 day extension shall be days of assuming a covered position, a forwarded by the appropriate DoD com- reporting individual shall submit an ponent DAEO or designee with his com- SF 278. ments to the Director, OGE, who may (ii) The report shall contain the in- grant an additional 45 days extension. formation prescribed for new entrant The reporting individual shall notify reports in the ‘‘Instructions for Com- his supervisor of any extension grant- pleting SF 278’’ attached to the SF 278. ed. (iii) No new entrant report is nec- (6) Combined annual and termination essary if the reporting individual has, reports. Reporting individuals who an- within 30 days prior to assuming a new ticipate terminating their DoD em- position, left another covered position ployment before June 30 may request for which the reporting individual filed an extension from the appropriate DoD an SF 278. component DAEO or designee of up to (iv) Notwithstanding paragraph (a)(3) 45 days in order to file one consolidated of this section, reserve military offi- annual and termination report. Com- cers shall file a new entrant report bined annual and termination reports within 30 days of promotion to grade must be filed within 30 days after ter- O–7, regardless of whether they are ex- mination of employment or service but pected to perform active duty for more not later than July 15. than 60 days. (7) Late filing fee. (i) Any reporting in- (3) Annual reports. Any time after dividual who is required to file an SF January 1 but not later than May 15, a 278 and does so more than 30 days after reporting individual who served in a the date the report is required to be covered position for more than 60 days filed, or, if an extension is granted, during the preceding calendar year more than 30 days after the last day of shall file an annual SF 278. For reserve the filing extension period, shall be military officers, only service pursuant subject to a $200 late filing fee. See 5 to orders issued under title 10, United CFR part 2634. Such fee shall be col- States Code, is counted. lected by the DoD component DAEO or (4) Termination reports. Not sooner than 15 days before but not later than designee for deposit with the U.S. 30 days after termination from a cov- Treasury. ered position, a reporting individual (ii) If the reporting individual fails to shall submit an SF 278. A termination remit the $200 fee within 90 days, the report is not required of a reporting in- fee shall be subject to DoD component dividual who, within 30 days of such debt collection procedures. termination, assumes another covered (iii) If extraordinary circumstances position. A termination report is not existed that caused the late submission required of a reserve military officer in of the report, a request for a waiver of the grade of O–7 or above who did not the fee may be submitted by the reserve more than 60 days on active duty porting individual with supporting doc- during the calendar year in which the umentation to the DoD component military officer is transferred to the DAEO or designee. The DoD component Retired reserve. DAEO or designee shall review the re- (5) Extension of filing deadlines. The quest and forward it with a rec- DoD component DAEO, in the case of ommendation for approval or denial to civilian Presidential appointees, and OGE. OGE will grant or deny the waiv- the DoD component DAEO or designee er. in other cases, may grant, for good (e) Content of report. (1) Instructions cause, a filing extension up to 45 days. for completing the SF 278 are attached All requests for extensions shall be pro- to the form. See detailed instructions vided, in writing, by the reporting indi- at 5 CFR 2634.301 through 2634.408, for

391 § 84.21 32 CFR Ch. I (7–1–97 Edition) additional guidance or contact the supervisors prior to submitting it to local Ethics Counselor. the DoD component DAEO or designee. (2) A complete report is required even Such a reporting individual may sub- if no changes have occurred since the mit a copy of his report to one super- last submission. visor and the original to the other in (3) Termination reports shall contain order to expedite processing; information covering the preceding (4) Reporting individuals on detail to calendar year, if an annual report was other Executive or Legislative Branch not filed for that year, and that por- agencies shall follow the filing require- tion of the present calendar year up to ments and procedures of those agen- the date of termination from the cov- cies. ered position. (g) Review—(1) Initial supervisor re- (4) A reporting individual shall review. Upon receipt of an SF 278, the su- quest required information known only pervisor of the reporting individual to another person to be submitted by shall review the report to determine if that person to appropriate reviewing any of the reported financial interests authorities. Such a submission may be reveal a conflict of interest with the made with a request for confidentiality reporting individual’s current and fu- which shall be honored by DoD review- ture official duties. See 5 CFR ing authorities when appropriate even 2634.605(b). The supervisor shall supple- if it limits disclosure to the reporting ment the report with any required in- individual. formation or data, including comments (f) Chain of submission. A reporting on the existence of actual or apparent individual shall submit his SF 278 as conflicts of interest, and forward the follows: report with all attachments to the Eth- (1) A civilian Presidential appointee ics Counselor. If any review reveals a shall file directly with his DoD compo- conflict or apparent conflict, the super- nent DAEO or designee; visor shall ensure that the matter is (2) Any other reporting individual resolved in accordance with paragraph shall submit his SF 278 through his su- (g)(2)(vii) of this section. pervisor and through his Ethics Coun- (2) Ethics Counselor review. (i) When selor to the DoD component DAEO or applicable, the Ethics Counselor shall designee. In some cases, the Ethics review each report to determine that: Counselor and the DoD component (A) Each item is completed; and DAEO or designee are the same person; (B) No interest or position disclosed (i) A military officer serving in a on the report violates or appears to DoD component or in the Central Intel- violate; ligence agency shall submit his report through his supervisor directly with (1) Any applicable provision of Chap- the DAEOs or designees of those agen- ter 11 of title 18, United States Code; cies; (2) The Ethics in Government Act of (ii) A military officer serving in OSD 1978, Public Law 95–521 (5 U.S.C. App.), or for the Chairman of the Joint Chiefs and implementing regulations; of Staff and Joint Staff, shall submit (3) Executive Order 12674 and imple- his report, through his supervisor, to menting regulations; or the GC, DoD, as the DoD component (4) Any other related laws or regula- DAEO; tions applicable to DoD employees. (iii) A military officer serving in a (ii) The reports are to be taken at joint, Unified, Specified or Combined ‘‘face value’’ unless there is a patent Commands, other than a Commander omission or ambiguity or the official in Chief, shall file through his super- has independent knowledge of matters visor directly with his DoD component outside the report. However, to ensure DAEO or designee. A Commander in that there are no omissions, the pre- Chief of such command shall file with vious report of each reporting individ- the Legal Advisor to the Chairman of ual, if applicable, shall be compared to the Joint Chiefs of Staff. the current submission. (3) A reporting individual who has (iii) If the Ethics Counselor believes more than one immediate supervisor that additional information is re- shall submit his report through both quired, the reporting individual shall

392 Office of the Secretary of Defense § 84.21 be notified of the additional informa- (B) Afford the reporting individual a tion required and the date by which it reasonable opportunity for an oral or must be submitted. The reporting indi- written response; and vidual shall submit the required infor- (C) Determine, after considering any mation directly to the Ethics Coun- response, whether or not the reporting selor. individual is in compliance with appli- (A) When the Ethics Counselor cable laws and regulations. If the Eth- amends or revises a report based on ad- ics Counselor concludes that the report ditional information obtained from the does fulfill the requirements, he shall reporting individual, he shall initial annotate the report or attach an en- the amendment or revision and make a dorsement stating that no conflicts of note of the source of the information in interest under applicable laws or regu- the comment section of the report. For lations exist and dispose of the report example, if the Ethics Counselor adds in accordance with paragraph (g)(2)(iv) to a report that a certain fund is an ex- of this section. If the Ethics Counselor cepted investment fund based on a tele- determines that it does not, he shall: phone conversation with the reporting (1) Notify the reporting individual of individual, he shall number and initial the conclusion; the change on Schedule A and add a no- (2) Afford the reporting individual an tation in the comment section of the opportunity for personal consultation, report, such as ‘‘1. per telecon with Mr. if practicable; Doe on June 16, 1992’’ and initial the (3) Determine what remedial action comment. should be taken to bring the reporting (B) When a substantial amount of in- individual into compliance; formation is missing from the report, (4) Notify the reporting individual, in it shall be returned to the supervisor writing, of the remedial action re- for evaluation in accordance with the quired, indicating a date by which that action must be taken; and standards set forth in paragraph (5) Ensure that the supervisor of the (g)(2)(i) of this section, with instruc- reporting individual is notified of the tions to return it to the Ethics Coun- required remedial action and date by selor with any additional comments or which that action must be taken. supplementary information. (vi) Except in unusual situations, (iv) If the Ethics Counselor agrees which must be documented fully to the with the supervisor’s evaluation that satisfaction of the Ethics Counselor, no item violates, or appears to violate, remedial action shall be completed applicable laws or regulations, then: within three months from the date the (A) The Ethics Counselor shall anno- reporting individual was notified that tate the report or attach an endorse- the action is required. ment stating that no conflicts of inter- (vii) Remedial steps, in accordance est under applicable laws or regula- with 5 CFR 2634.605–2634.607, may in- tions exist, and forward it to the appro- clude the following measures: priate DoD Component DAEO or des- (A) Divestiture: ignee; and (1) Any reporting individual or the (B) If there are no financial interests spouse, minor or dependent child of a in non-Federal entities doing or seek- reporting individual, may be issued a ing business with DoD reported on the Certificate of Divestiture by the Direc- SF 278, the Ethics Counselor may issue tor, OGE, upon a determination that a memorandum with the SF 278 to the such divestiture is reasonably nec- appropriate DoD Component DAEO or essary to comply with 18 U.S.C. 208, or designee. any other Federal Government conflict (v) If the Ethics Counselor disagrees of interest statute, regulation, rule, or with the supervisor’s evaluation, and Executive Order, or pursuant to the re- concludes that the report does not quest of the Senate as a condition of comply with applicable laws and regu- confirmation; lations, he shall do the following: (2) If obtained before the sale, the (A) Notify the reporting individual in Certificate of Divestiture allows for writing of the preliminary determina- the non-recognition of capital gains tion; that result upon the sale of property to

393 § 84.21 32 CFR Ch. I (7–1–97 Edition) comply with conflict of interest re- shall review the report in accordance quirements if the property is rolled with the standards set forth in para- over into property permitted by OGE. graphs (g)(2)(i) and (g)(2)(ii) of this sec- See 5 CFR 2634.1001; tion. (3) The following items must be sub- (ii) Additional information required mitted to the Director, OGE, by the by the DoD component DAEO or des- DoD component DAEO: ignee shall be collected in accordance (i) A copy of the written request from with paragraph (g)(2)(ii) of this section. the reporting individual to the DoD (iii) The DoD component DAEO or component DAEO to seek certification designee shall notify the reporting in- in the case of the property to be di- dividual of any necessary remedial ac- vested; tion in accordance with procedures set (ii) A copy of the latest SF 278 or SF forth in paragraph (g)(2)(v) of this sec- 450; tion. (iii) A detailed description of the spe- (iv) When the DoD component DAEO cific property for which divestiture is or designee determines that no item contemplated; violates, or appears to violate, any ap- (iv) A complete statement by the plicable law or regulation, or when the DoD component DAEO or designee of DoD component DAEO or designee de- the facts and circumstances relevant to termines that a reporting individual the requirement for divestiture and an has complied fully with the remedial explanation of the rules that apply to measures, the DoD component DAEO the requirement for divestiture; or designee shall sign and date the re- (v) An analysis and recommendation port. as to whether the certificate should be (v) If steps ensuring compliance with granted. applicable laws or regulations are not (4) The Director, OGE, will issue a taken by the date established, the DoD Certificate of Divestiture when divesti- component DAEO or designee shall re- ture is a condition for Senate con- port the matter to the Head of the DoD firmation or is reasonably necessary to component for remedial action, with an comply with conflict of interest re- information copy to the Director, OGE. quirements. (vi) If the DoD component or des- (B) Disqualification in accordance ignee concludes that no item violates, with 5 CFR 3601.105; or appears to violate, any applicable (C) Limitation of duties; law or regulation, but that there are fi- (D) Transfer or reassignment; nancial interests in non-Federal enti- (E) Resignation; ties doing or seeking business with (F) Exemption under 18 U.S.C. 208 DoD, then the DoD component DAEO (b)(1) or (b)(3); or designee may issue a memorandum (G) Establishment of a qualified blind of caution to the reporting individual. trust. (vii) All reports shall be reviewed (viii) When the Ethics Counselor de- within 60 days after the date of filing. termines that a reporting individual The DoD component DAEO or designee has complied fully with the remedial shall record the date of the review and measures, a notation to that effect ensure that all reports are reviewed shall be made in the comment section within the 60 day period. After review, of the SF 278. The Ethics Counselor the DoD component DAEO or designee shall then follow the procedures set may proceed to obtain addition infor- forth in paragraph (g)(2)(iv) of this sec- mation, seek remedial action, or sign tion. and date the report. (ix) If steps ensuring compliance with (4) Special reviewing requirements of O– applicable laws and regulations are not 9 and O–10 Flag and General Officer taken by the date established, the Eth- nominees. (i) As part of the process for ics Counselor shall report the matter approving nominees for appointment to to the agency designee for appropriate O–9 and O–10 Flag or General officer po- action, with an information copy to sitions, the Secretaries of the Military the DoD component DAEO. Departments shall ensure that the (3) DoD component DAEO review. (i) nominee has a current SF 278 on file The DoD component DAEO or designee and that the report has been reviewed

394 Office of the Secretary of Defense § 84.22 by the appropriate DoD component against any reporting individual who DAEO or designee in relation to the po- fails to file an SF 278 or who falsifies or sition for which he is being considered. fails to report required information. (ii) Secretaries of Military Depart- (2) Action by the U.S. Attorney General. ments shall cause a review of all rel- The U.S. Attorney General may bring a evant systems of records maintained civil action in the U.S. District Court by their departments, including inves- against any individual who knowingly tigative files, to determine if there is and willfully falsifies or fails to file or any evidence that the nominee has vio- report information required to be related the rules or standards of conduct. ported. The court may assess a civil (iii) Each nomination forwarded to penalty. Knowing and willful falsifica- the Secretary of Defense shall be action of information required to be filed companied by a certification by the may also result in criminal prosecution Secretary of the Military Department under 18 U.S.C. 1001, leading to a fine concerned that the required review has or imprisonment of not more than five been conducted and has or has not dis- years, or both. closed a violation of the rules or stand- (3) Misuse of reports. (i) The U.S. At- ards of conduct. torney General may bring a civil ac- (h) Disposition—(1) Designation of cer- tion against an individual who obtains tifying official. Only the Head of the or uses an SF 278 filed under the Ethics DoD component or the DoD component in Government Act, Public Law 95–521 DAEO may certify nomination reports (5 U.S.C. App.), for the following rea- required to be filed by a reporting indi- sons: vidual who is nominated by the Presi- (A) Any unlawful purpose; dent to a position requiring the advice (B) Any commercial purpose other and consent of the Senate. For all than by news and communications other reports, the DoD component media for dissemination to the general DAEO may delegate this responsibility public; to other officials within the DoD com- (C) Determining or establishing the ponent. credit rating of any individual; (2) Disposition. The SF 278 and a com- (D) Directly or indirectly, for the so- plete record of all action taken thereon licitation of money for any political, shall be retained for a period of six charitable or other purpose. years by the DoD component DAEO or (ii) The court in which the action is designee, and a copy of the report shall brought may assess a penalty against a be forwarded to OGE, when required. person in any amount, not to exceed After the six-year period, the report $10,000. This shall be in addition to any shall be destroyed, unless needed in an other remedy available under statutory ongoing investigation. In the case of a or common law. reporting individual who filed a report [59 FR 13214, Mar. 21, 1994, as amended at 60 as a nominee and was not subsequently FR 20030, Apr. 24, 1995] confirmed by the Senate, the report shall be destroyed one year after the § 84.22 Confidential financial disclo- reporting individual is no longer under sure report (SF 450). consideration by the Senate. (a) Individuals required to file. (1) Cov- (i) Public availability of reports. SF ered positions. For purposes of this sec- 278s must be made available for public tion, unless required to file an SF 278 inspection 30 days after the reports are or unless expressly exempted, the fol- filed unless otherwise exempted under lowing individuals are in ‘‘covered po- law. OGE Form 201, ‘‘Request to In- sitions’’ and are required by 5 CFR part spect or Receive Copies of SF 278, Fi- 2634 to file initial and annual SF 450 nancial Disclosure Report,’’ shall be through their supervisor to their Eth- filed by a requestor before inspecting ics Counselor as set out in paragraph an SF 278. (f) of this section: (j) Penalties—(1) Action within a DoD (i) Commanding officers, heads and component. The Head of the DoD com- deputy heads, and executive officers of: ponent may take appropriate action, (A) Navy shore installations with 500 including adverse action, in accordance or more military and civilian DoD em- with applicable laws or regulations, ployees (including foreign nationals

395 § 84.22 32 CFR Ch. I (7–1–97 Edition) and indirect personnel regularly at- (iv) Individuals who are detailed to tached but excluding personnel at- positions described in paragraph tached for temporary duty); and (a)(1)(iii) of this section. (B) All Army, Air Force, and Marine (v) Individuals serving on detail Corps installations, bases, air stations under the Intergovernmental Personnel or activities. Act, from State or local governments, (ii) Special Government employees, institutions of higher education or except the following categories of DoD other eligible organizations. See 5 employees who are required to file re- U.S.C. 3371–3376. ports only when specifically requested (2) Exclusion. (i) Any DoD employee to do so by their supervisor: or group of DoD employees may be ex- (A) Physicians, dentists, and allied cluded from all or a portion of the re- medical specialists engaged only in porting requirements when the DoD providing services to patients; component Head or designee deter- (B) Veterinarians providing only vet- mines that a report is unnecessary be- erinary services; cause of the remoteness of any impair- (C) Lecturers participating only in ment to the integrity of the Federal educational activities; Government, because of the degree of (D) Chaplains performing only reli- supervision and review of the DoD em- gious services; ployee’s work, or because the use of an (E) Individuals in the motion picture alternative procedure is adequate to or television fields who are utilized prevent possible conflicts of interest. only as narrators or actors in DoD pro- Any alternative procedure must be ap- ductions; proved in writing by OGE. (F) Reservists on active duty for less (ii) DoD employees who are not em- than 30 consecutive days during a cal- ployed in contracting or procurement endar year; and and who have decision making respon- (G) Members of selection panels for sibilities regarding expenditures of less ROTC candidates. than $2,500 per purchase and less than (iii) DoD employees classified at GS/ $25,000 cumulatively per year are ex- GM–15 or below under 5 U.S.C. 5332 or a cluded from the requirement to file the comparable pay level under other au- SF 450. However, Agency Designees thority, and members of the military may require such DoD employees, in below the grade of O–7 as follows: individual cases, to file the SF 450. (A) When the official responsibilities Such DoD employees remain subject to of such DoD employees require them to conflict of interest statutes and regula- participate personally and substan- tions. tially through decision or exercise of (b) Information on covered positions. (1) significant judgment in taking an offi- The directors of personnel offices are cial action for contracting or procure- responsible for providing the following ment, administering or monitoring information to their DoD component grants, subsidies, licenses or other Fed- DAEOs or designees they service: erally conferred financial or oper- (i) Immediately upon the appoint- ational benefits, regulating or auditing ment of covered DoD employees, the any non-Federal entity, or other ac- name, position, organization and en- tivities in which the final decision or trance-on-duty date of DoD employees action may have a direct and substan- required by their supervisor to file a tial economic impact on the interests new entrant SF 450. of any non-Federal entity; (ii) By October 3 of each year, a list (B) Any DoD employee serving in a of the names, positions and organiza- position in which his supervisor deter- tions, when applicable, of DoD employ- mines that the duties and responsibil- ees who are required to file an annual ities of the position require the DoD SF 450. employee to file such a report to avoid (2) Coordination is required as fol- an actual or apparent conflict of inter- lows: est and to carry out the purpose of any (i) Administrative officers (or equiva- statute, Executive Order, or regulation lent) of each organization shall coordi- applicable to or administered by that nate with the supervisors within their reporting individual; organization, in consultation with the

396 Office of the Secretary of Defense § 84.22

DoD component DAEO or designee, to 61 days during the preceding reporting update the list of annual reporting in- period must submit an SF 450 to his dividuals in their organization and re- Ethics Counselor by November 30 of port any additions or deletions to the each year covering the preceding 12 concerned Ethics Counselor by October months (or any portion thereof not 31 of each year. In addition, it is the covered by a new entrant report), with administrative officers’ responsibility information current as of September 30 to ensure that any new positions are of that year. A reporting individual evaluated to determine whether such who is reassigned or transferred from reports are required; or one covered position to another during (ii) The directors of personnel offices the reporting period shall file an an- shall coordinate with Ethics Coun- nual report whether or not he was em- selors and supervisors to ensure that ployed in that position for 61 days. position or billet descriptions of re- (3) Extension of filing deadline. (i) porting individuals described in para- When required by reason of duty as- graph (a) of this section contain a signment, infirmity, or other good statement that an SF 450 must be filed. cause affecting a reporting individual, All new or revised position or billet de- the DoD component DAEO or designee scriptions shall be reviewed to deter- may grant an extension of the filing mine whether such reports are re- deadline, not to exceed 60 days for an- quired. nual reports or 90 days for new entrant (c) Notification of requirement to file. reports. DoD component DAEOs or designees (ii) Requests for extensions shall be shall provide appropriate notices and submitted in writing. instructions to ensure the timely prep- (iii) Each annual reporting individual aration of the reports and submission is automatically granted a 30 day ex- to their supervisors and their Ethics tension by this part to make the re- Counselors for review and filing. porting deadline November 30 as stated (d) Time of filing—(1) New entrant rein paragraph (d)(2) of this section. This ports. (i) Except for a special Govern- ment employee, a reporting individual automatic extension need not be anno- shall submit an SF 450 with informa- tated on an individual report. Any tion current as of the filing date for other extension shall be noted. the preceding 12 months, through his (e) Content of report. (1) Instructions supervisor to his Ethics Counselor not for completing the SF 450 are included later than 30 days after assuming du- on the report. See instructions at 5 ties in a covered position. Upon trans- CFR 2634.907 and 2634.908 for additional fer or reassignment from one covered guidance or contact the local Ethics position to another, a reporting indi- Counselor. vidual shall submit a copy of his pre- (2) A complete report is required even vious report to the appropriate super- though no changes have occurred since visor of the new position. the last submission. (ii) A special Government employee (3) A reporting individual shall re- shall submit an SF 450 with informa- quest required information known only tion current as of the filing date for to another person to be submitted by the preceding 12 months, through his that person to appropriate reviewing supervisor to his Ethics Counselor be- authorities. Such a submission may be fore assuming duties in a covered posi- made with a request for confidentiality tion. A special Government employee which shall be honored by DoD review- whose appointment is renewed shall ing authorities when appropriate, even file a new entrant report for the pre- if it limits disclosure to the reporting ceding 12 months prior to his re- individual. appointment. A special Government (f) Chain of submission. A reporting employee whose appointment exceeds individual shall submit his SF 450 one year shall file a new entrant report through his supervisor to his Ethics on the anniversary of his appointment. Counselor. It is the responsibility of (2) Annual reports. A reporting indi- the reporting individual to ensure that vidual (except a special Government an annual report is filed by November employee) who was employed at least 30.

397 § 84.22 32 CFR Ch. I (7–1–97 Edition)

(g) Review. (1) Upon receipt of an SF (ii) When a substantial amount of in- 450, the supervisor of the reporting information is missing from the report, dividual shall provide an initial review it shall be returned to the supervisor of the report using the criteria set for his evaluation in accordance with forth in paragraph (g)(2) of this section the standards set forth in paragraph and forward it with any comments to (g)(2) of this section with instructions the local Ethics Counselor for further to return it to the Ethics Counselor review. with any additional comments or sup- (2) The Ethics Counselor shall review plementary information. each report to determine that: (5) If the Ethics Counselor agrees (i) Each item is completed; and with the supervisor’s evaluation that (ii) No interest or position disclosed no item violates, or appears to violate, on the report violates or appears to applicable laws or regulations, then the violate: Ethics Counselor shall sign and date (A) Any applicable provision of Chap- the report. ter 11 of title 18, United States Code; (6) If the Ethics Counselor agrees (B) The Ethics in Government Act of with the supervisor’s evaluation that 1978, Public Law 95–521 (5 U.S.C. App.), no item violates, or appears to violate, and implementing regulations; applicable laws or regulations, but that (C) Executive Order 12674 and imple- there are financial interests in non- menting regulations; or Federal entities doing or seeking busi- (D) Any other related laws or regula- ness with DoD, then the Ethics Coun- tions applicable to DoD employees of selor may issue a memorandum of cau- the agency. tion to the reporting individual and (3) The Ethics Counselor shall not shall sign and date the report. sign and date the report until the de- (7) If the Ethics Counselor disagrees terminations described in paragraph with the supervisor’s evaluation that (g)(2) of this section are made. The reno item violates or appears to violate ports are to be taken at ‘‘face value’’ applicable laws or regulations, then the unless there is a patent omission or Ethics Counselor shall do the follow- ambiguity or the official has independ- ing: ent knowledge of matters outside the (i) Notify the reporting individual, in report. writing, of the preliminary determina- (4) If the Ethics Counselor believes tion; that additional information is required, the reporting individual shall (ii) Afford the reporting individual a be notified of the additional informa- reasonable opportunity for an oral or tion required and the date by which it written response; and must be submitted. The reporting indi- (iii) Determine, after considering any vidual shall submit the required infor- response, whether or not the reporting mation directly to the Ethics Coun- individual is in compliance with appli- selor. cable laws and regulations. If the Eth- (i) When the Ethics Counselor ics Counselor concludes that the report amends or revises a report based on ad- does fulfill the requirements, he shall ditional information obtained from the sign and date the report. If the Ethics reporting individual, he shall initial Counselor determines that it does not, the amendment or revision and make a he shall: note of the source of the information in (A) Notify the reporting individual of the comment section of the report. For the conclusion; example, if the Ethics Counselor adds (B) Afford the reporting individual an to a report that a certain fund is an ex- opportunity for personal consultation, cepted investment fund based on a tele- if practicable; phone conversation with the reporting (C) Determine what remedial action individual, he shall number and initial shall be taken to bring the reporting the change on Schedule A and add a no- individual into compliance; and tation in the comment section of the (D) Notify the reporting individual, report such as, ‘‘1. per telecon with Mr. in writing, of the remedial action re- Doe on June 16, 1992’’ and initial the quired, indicating a date by which that comment. action must be taken;

398 Office of the Secretary of Defense § 84.22

(E) Ensure that the supervisor of the (ii) Disqualification in accordance reporting individual is notified of the with 5 CFR 3601.105; required remedial action and date by (iii) Limitation of duties; which that action must be taken. (iv) Transfer or reassignment; (8) Except in unusual situations, (v) Resignation; which must be documented fully to the (vi) Exemption under 18 U.S.C. satisfaction of the Ethics Counselor, 208(b)(1) or (b)(3); remedial action shall be completed (vii) Establishment of a qualified within 90 days from the date the re- blind trust porting individual was notified that (10) When the Ethics Counselor deter- the action is required. mines that a reporting individual has (9) Remedial steps, in accordance complied fully with the remedial meas- with 5 CFR 2634.605–2635.607 may in- ures, a notation to that effect shall be clude the following measures: made on the SF 450. The Ethics Coun- (i) Divestiture: selor shall then sign and date the SF (A) Any DoD employee or the spouse, 450 and dispose of it in accordance with minor or dependent child of a DoD em- paragraph (h) of this section. ployee may be issued a Certificate of (11) If steps ensuring compliance with Divestiture by the Director, OGE, upon applicable laws and regulations are not a determination that such divestiture taken by the date established, the Eth- is reasonably necessary to comply with ics Counselor shall report the matter 18 U.S.C. 208 or any other Federal Gov- to the agency designee for appropriate ernment conflict of interest statute, action, with an information copy to regulation, rule, or Executive order; the DoD component DAEO. (B) If obtained before the sale, the (12) All reports shall be reviewed Certificate of Divestiture allows for within 60 days after the date of filing the non-recognition of capital gains and the Ethics Counselor shall record that result upon the sale of property to the date of the initial review. After the comply with conflict of interest re- initial review, the Ethics Counselor quirements if the property is rolled shall obtain additional information, as over into property permitted by OGE. necessary, seek remedial action, or See 5 CFR 2634.1001 for additional guid- sign and date the report. ance; (h) Disposition. The SF 450 and a com- (C) The following items must be sub- plete record of all action taken thereon mitted to the Director, OGE, by the shall be retained for a period of six DoD component DAEO: years in a central location within the (1) A copy of the written request agency, command or activity to which from the individual to the DoD compo- the reporting individual was assigned nent DAEO to seek certification in the at the time of filing, after which they case of the property to be divested; shall be destroyed, unless needed in an (2) A copy of the latest SF 278 or SF ongoing investigation. 450; (i) Privacy Act. The SF 450 is a con- (3) A detailed description of the spe- fidential report. Accordingly, the re- cific property in which divestiture is ports are protected by the Privacy Act, contemplated; 5 U.S.C. 552 and are exempt from being (4) A complete statement by the DoD released to the public under the Free- component DAEO or designee of the dom of Information Act, 5 U.S.C. facts and circumstances relevant to the 552(b)(3)(A) and (B), (b)(4) and (b)(6). requirement for divestiture and an ex- (j) Status reports. (1) Not later than planation of the rules that apply to the December 15 of each year, Ethics Coun- requirement for divestiture; selors shall prepare a consolidated sta- (5) An analysis and recommendation tus report concerning the annual filing as to whether the certificate should be of the SF 450. The status report shall granted. be sent through the head of the DoD (D) The Director, OGE, will issue a component command or organization Certificate of Divestiture when divesti- to the respective DoD component ture is reasonably necessary to comply DAEO or designee and shall contain with conflict of interest requirements. the following information:

399 § 84.23 32 CFR Ch. I (7–1–97 Edition)

(i) The number of individuals re- at any time during that year received quired to file an annual SF 450; and compensation of or was salaried at a (ii) The number of individuals who rate of $25,000 per year or more at any have not filed an SF 450 as of November time during employment. 30. (i) Compensation is received by an in- (2) Subsequent to December 15, dividual if it is paid to a business en- monthly reports may be required by tity with which the person is affiliated the DoD component DAEO to be filed in exchange for services rendered by for those organizations which have not that individual. received an SF 450 from all reporting (ii) A rate of $25,000 per year equates individuals required to file, until 100% to $12 per hour. compliance has been achieved. These (b) Time of filing. DoD employees monthly reports shall be forwarded as shall file a DD Form 1787 with their described in paragraph (j)(1) of this sec- local Ethics Counselors within 30 days tion. of entering on duty with the DoD com- (k) Penalties—(1) Administrative pen- ponent. Anyone failing to file a report, or alties. (c) Review. (1) When a report is filed, falsifying or failing to file required in- the Ethics Counselor shall review the formation, may be subject to discipli- DD Form 1787 to determine whether: nary action by the employing organiza- (i) Each item is completed and suffi- tion, including such measures as sus- cient information is provided; and pension of consideration for appointment, reassignment of duties and ter- (ii) Whether the information indi- mination of employment. cates any violation or apparent viola- (2) Criminal liability. Anyone who tion of any of the conflicts of interest, knowingly or willfully falsifies infor- standards of conduct, procurement in- mation on a report may be subject to tegrity, or related laws and regula- criminal prosecution under 18 U.S.C. tions. 1001. (2) The Ethics Counselor need not audit the report. Disclosures are to be [59 FR 13214, Mar. 21, 1994, as amended at 60 taken at ‘‘face value’’ unless there is a FR 20030, Apr. 24, 1995] patent omission or ambiguity or the of- § 84.23 Report of DoD and defense re- ficial has independent knowledge of lated employment (DD form 1787). matters outside the report. However, it its expected that the Ethics Counselor (a) Individuals required to file. Each ci- will resolve any apparent violations to vilian DoD employee of a DoD compo- ensure there are no actual violations. nent who meets the statutory criteria (3) If the Ethics Counselor believes is required by 10 U.S.C. 2397 to file a DD that additional information is re- Form 1787,21 ‘‘Report of DoD and De- quired, the reporting individual shall fense Related Employment,’’ with his be notified of the additional informa- Ethics Counselor. A DoD employee tion required and the date by which it meets the criteria if he: must be submitted. The reporting indi- (1) Is employed at a pay rate equal to vidual shall submit the required infor- or greater than the minimum rate for a mation directly to the Ethics coun- GS/GM–13; (2) Within the two-year period prior selor. to the effective date of service or em- (4) When the Ethics Counselor has ployment with the DoD component, completed the review and accomplished was employed by a defense contractor any necessary remedial action, the who, during the preceding one-year pe- Ethics Counselor shall sign and date riod, was awarded $10 million or more the report and dispose of it in accord- in defense contracts; and ance with § 84.23(d). (3) Was employed by or performed (5) If the Ethics Counselor concludes services for the defense contractor and that the reporting individual is not in compliance with applicable laws or regulations, the Ethics Counselor shall: 21 Copies are available for DoD Standards of Conduct Office, Office of General Counsel, (i) Notify the reporting individual, in 1600 Defense Pentagon, Washington, DC writing, of the preliminary determina- 20301–1600. tion;

400 Office of the Secretary of Defense § 84.25

(ii) Afford the reporting individual an suring that their reports are accurate, opportunity for personal consultation, complete, and timely. if practicable; (f) Penalties—(1) Administrative pen- (iii) Determine what remedial action alties. Anyone failing to file a report, or should be taken to bring the reporting falsifying or failing to file required in- individual into compliance; and formation, may be subject to any appli- (iv) Notify the reporting individual of cable personnel or other action in ac- the remedial action required, indicat- cordance with applicable law or regula- ing a date by which that action must tion, including adverse action. An ad- be taken, normally within 90 days. ministrative penalty of up to $10,000 (6) When the Ethics Counselor deter- may be imposed in accordance with 10 mines that a reporting individual has U.S.C. 2397. complied fully with the remedial meas- (2) Criminal liability. Any individual ures, a notation to that effect shall be who knowingly or willfully falsifies in- made in the comment section of the re- formation on a report may be subject port. The Ethics Counselor shall sign to criminal prosecution under 18 U.S.C. and date the report as the reviewing of- 1001. ficial and dispose of it in accordance with paragraph (d) of this section. [59 FR 13214, Mar. 21, 1994, as amended at 60 (d) Disposition. (1) After the Ethics FR 20030, 20031, Apr. 24, 1995] Counselor signs and dates the report, the Ethics Counselor shall send the Subpart H—Seeking Other original to the entire DoD Component Employment DAEO or designee, who shall forward it, together with all other such reports § 84.24 General rules. that were received during the previous Office of Government Ethics Regulation. calendar year, to SOCO not later than 5 CFR part 2635, subpart F provides March 15. rules on seeking other employment (2) The DoD Component DAEO or des- that apply to all DoD employees. ignee shall ensure that appropriate data from each DD Form 1787 is ex- § 84.25 Conflict of interest (18 U.S.C. tracted and sent, together with all 208). other such data from other such reports that were received during the (a) Negotiating for employment. See 5 previous calendar year for the entire CFR 2635.603 for provisions on conflicts DoD Component, by March 15, to the of interest in employment negotiations Defense Manpower Data Center under 18 U.S.C. 208. The provisions of 18 (DMDC) where a consolidated report to U.S.C. 208 and related provisions of Congress is compiled. DMDC will ac- OGE regulations do not apply to en- cept data only on computer disk using listed members. However, provisions any common word processing software similar to 18 U.S.C. 208 do apply to en- or ASCII. listed members as follows: [The follow- (3) If steps ensuring compliance with ing is a General Order] except as ap- applicable laws and regulations are not proved by the DoD component DAEO or taken by the date established, the Eth- designee, an enlisted member, includ- ics Counselor shall report the matter ing an enlisted special Government em- to the DoD component DAEO and take ployee, shall not participate personally whatever other action might be re- and substantially as part of his official quired in accordance with subpart J of DoD duties, in any particular matter in this part. which he, his spouse, minor child, part- (4) DD Forms 1787 shall be retained ner, entity in which he is serving as of- by SOCO for six years from the date of ficer, director, trustee, partner or em- filing with SOCO. ployee or any entity with which he is (e) Public availability of reports. DD negotiating or has an arrangement Forms 1787 must be available for public concerning prospective employment, examination upon request after the re- has a financial interest [end of General port is filed with SOCO, unless exempt- Order]. See 18 U.S.C. 208, ed pursuant to law. Reporting individ- § 84.3(a)(2)(i)(A) and § 84.15(b), and 5 CFR uals are personally responsible for en- 2635.603.

401 § 84.26 32 CFR Ch. I (7–1–97 Edition)

(b) Penalties. Violation of 18 U.S.C. with the policy and procedures con- 208 is punishable by a fine and impris- tained in 48 CFR 3.104–6 (c) through (h). onment. The full range of administra- The head of the contracting activity tive sanctions may also be imposed. has the authority to approve or disapprove a request for recusal; however, § 84.26 Procurement integrity (41 he may not approve recusal for a pro- U.S.C. 423(b)). curement official who has participated (a) Soliciting, accepting, or discussing personally and substantially in certain employment. (1) [The following is a Gen- evaluation functions listed in 48 CFR eral Order] During the conduct of a 3.104–6(c). procurement, a procurement official (4) Any DoD procurement official or may not knowingly, directly or indi- former DoD procurement official may, rectly, solicit or accept from, or dis- by written request, seek advice from cuss with, any officer, employee, rep- his DoD component DAEO or designee resentative, agent, or consultant of a regarding whether he may be precluded competing contractor, any future em- by the procurement integrity rules ployment or business opportunity [end from engaging in a specified activity. of General Order]. See 48 CFR 3.104–6. See 48 CFR 3.104–8. (2) This prohibition does not apply to (i) The request must provide the DoD a procurement official: component DAEO or designee with suf- (i) After he leaves Federal Govern- ficient information to make a deter- ment service; mination. (ii) Who is employed by a contractor, (ii) The DoD component DAEO shall subcontractor, consultant, expert, or make his determination, in writing, advisor after he ceases to act on behalf within 30 days, or as soon thereafter as of, or provide advice to, the procuring practicable. agency concerning the procurement; (iii) A copy of the request and the (iii) Who has been granted recusal, in ethics advisory opinion shall be re- writing, in accordance with the provi- tained for six years, in accordance with sions of 48 CFR 3.104–6 and paragraph DoD component procedures. (a)(4) of this action and who has in fact (b) Penalties. Violation of the provi- discontinued participation in the pro- sions of 41 U.S.C. 423 is punishable by curement; the full range of sanctions, including (iv) Whose only communication with the following: a competing contractor is to reject an unsolicited offer of employment or (1) Civil penalties. Individual violators business opportunity or advise the may be subject to a civil fine not to ex- competing contractor that he must ceed $100,000. Violators, other than in- seek recusal prior to any discussion re- dividuals, may be subject to a civil fine garding the unsolicited offer; not to exceed $1 million. (v) Who has made inquiry in good (2) Administrative sanctions. See § 84.39. faith of the potential contractor and been advised that the contractor is not § 84.27 Reporting employment contacts (10 U.S.C. 2397a). or will not become a competing contractor on a procurement on which the (a) Individuals required to file. The fol- individual is a procurement official; or lowing DoD employees are required by (vi) Where the procurement official this part and by 10 U.S.C. 2397a to re- engages in conduct in good faith reli- port, in writing, their employment con- ance upon a written ethics advisory tacts to their supervisor and DoD com- opinion; ponent DAEO or designee: (vii) After the procurement has been (1) Any military officer in grade O–4 concluded by the award or modification or above, or any civilian DoD employee of a contract or the cancellation of the serving in a position for which the rate procurement. of pay is equal to or greater than the (3) A procurement official may dis- minimum rate of pay for GS/GM–11 cuss employment or business opportu- who; nities with a competing contractor (2) At any time during his DoD serv- only if a written recusal request was ice, performed a ‘‘procurement func- submitted and approved in accordance tion’’ involving a defense contractor

402 Office of the Secretary of Defense § 84.28 which received at least $25,000 a year in (v) If the statement is necessary only DoD business; and because of a second contact which was (3) Who contacts or is contacted by rejected, information in accordance that defense contractor regarding fu- with paragraphs (c)(3)(iii) and (c)(3)(iv) ture employment. of this section. (b) Content of report. Reports of em- (4) Withdrawal of disqualification. A ployment contacts shall include: DoD employee may withdraw a dis- (1) The name, title, agency address, qualification if employment discus- and telephone number of the reporting sions conclude with no arrangement re- individual; garding future employment, or if such (2) The name of the defense contrac- an arrangement is ended, by notifying, tor concerned; in writing, the same individuals who (3) The date of each contact covered received copies of his disqualification by the report; and statement. (4) A brief description of the sub- (5) Review and retention of disqualifica- stance of each contact. tion. The supervisor, with the assistance of the Ethics Counselor, shall re- (c) Disqualification statement—(1) Indi- view the disqualification statement to viduals required to file disqualification. make sure it will prevent any conflict (i) Any DoD employee required to of interest and to determine whether submit a report of an employment con- the DoD employee can still carry out tact shall submit to his supervisor a his responsibilities adequately. Both written statement disqualifying him- the supervisor and the Ethics Coun- self from participating in any ‘‘pro- selor shall retain a copy of the dis- curement function’’ involving the de- qualification statement for three fense contractor until such time as the years. possibility of future employment with (d) Exception. A DoD employee need that defense contractor has been re- not report the contact or disqualify jected by either party. himself from officially participating in (ii) Procurement officials may be re- a particular matter involving the de- quired to request recusal through for- fense contractor if the first contact mal procedures requiring written ap- was initiated by the defense contractor proval by the head of the contracting and the DoD employee immediately agency. See § 84.26(a). terminates the discussion and un- (2) Distribution of disqualification. The equivocally rejects consideration of disqualification statement shall be employment opportunities. If the con- given to the DoD employee’s supervisor tact is renewed by either the defense and the Ethics Counselor. It also contractor or the DoD employee, all should be provided to others who might contacts must be reported. contact the DoD employee regarding (e) Penalties. An individual who fails the defense contractor which is the to report an employment contact or to subject of the disqualification. disqualify himself as required by para- (3) Contents of disqualification. The graphs (a) through (c) of this section disqualification statement shall con- may be subject to the following admin- tain: istrative penalties: (i) The name, title, agency address, (1) Prohibition of employment with and telephone number of the DoD em- the defense contractor concerned for up ployee submitting the report; to ten years from the date of separa- (ii) The extent of disqualification tion from DoD; and (i.e., a description of duties affecting (2) An administrative penalty not to the defense contractor the DoD em- exceed $10,000. ployee may not perform as a result of the disqualification); § 84.28 DoD guidance. (iii) Identification of the DoD em- (a) Appearances. DoD employees ployee or office that will handle duties shall: during the disqualification period; and (1) Ensure that the prospect of em- (iv) An explanation of any other ployment does not affect the perform- steps required to avoid potential con- ance or non-performance of their offi- flicts of interests; cial duties;

403 § 84.29 32 CFR Ch. I (7–1–97 Edition)

(2) Ensure that they do not commu- nical information that are authorized nicate inside information to a prospec- by the Head of the DoD component. tive employer; and (1) To obtain such an authorization (3) Avoid any activity that would af- in the case of former DoD employees: fect the public’s confidence in the in- (i) The head of the DoD component tegrity of the Federal Government, command or organization involved even if it is not an actual violation of shall submit, in writing, to the Head of the law. the DoD component a request that the (b) Written guidance. DoD employees former DoD employee be permitted to may obtain counseling and written ad- participate in a particular matter from vice concerning restrictions on seeking which he would ordinarily be barred other employment from their Ethics under 18 U.S.C. 207; Counselor: (ii) The Head of the DoD component (1) Although the counseling and ad- or designee may determine in writing vice are given by DoD attorneys and that such participation is appropriate involve the interpretation of law and if: regulation and rendering of legal opin- (A) The former DoD employee has ion, no attorney-client or other con- outstanding scientific or technological fidential relationship is created. Com- qualifications; munications made to an Ethics Coun- (B) The national interest of the Unit- selor in seeking such advice are not ed States would be served by such par- privileged. ticipation; (2) This counseling and advice is per- (C) The former DoD employee has sonal to the current or former DoD em- qualifications that are otherwise un- ployee. It does not extend to the indi- available; and vidual’s business, employer, or prospective employer. (D) The Head of the DoD component or designee has consulted with the DoD component DAEO. Subpart I—Post-Government (2) In cases involving former Federal Service Employment Government employees other than former DoD employees, authorization § 84.29 Office of Government Ethics regulation. may be obtained in accordance with procedures in 18 U.S.C. 207(j)(5). (a) See 5 CFR part 2637, ‘‘Regulations Concerning Post-Employment Conflict [59 FR 13214, Mar. 21, 1994, as amended at 60 of Interest’’. FR 20030, Apr. 24, 1995] [5 CFR part 2637 applies only to DoD employees who left Federal Govern- § 84.31 Post-employment counseling and advice. ment service before 1991] (b) See 5 CFR part 2641, ‘‘Post-Em- (a) Written advice. Current and former ployment Conflict of Interest Restric- DoD employees may obtain counseling tions’’. and written advice concerning post-em- [5 CFR part 2641 applies to DoD employment restrictions from the Ethics ployees who left Federal Government Counselor of the DoD component com- service on or after January 1, 1991] mand or organization from which they are leaving, or have left, Federal Gov- § 84.30 Guidance on 18 U.S.C. 207. ernment service. Current and former (a) OGE guidance. See Office of Gov- DoD employees are, by statute, enti- ernment Ethics memorandum,22 ‘‘Re- tled to written advice from the DoD vised Materials Relating to 18 U.S.C. component DAEO or designee under 10 207,’’ November 5, 1992. U.S.C. 2397b and 41 U.S.C. 423. See (b) DoD guidance. The restrictions § 84.32 (a)(3) and (b)(3). imposed by 18 U.S.C. 207(a), (c) and (d) (1) Although ethics counseling and do not apply to communications made advice are given by DoD attorneys and solely to furnish scientific and tech- involve interpretation of law and regulation and rendering of legal opinion, 22 Copies are available from U.S. Office of no attorney-client or other confiden- Government Ethics, 1201 New York Avenue tial relationship is created. Commu- NW., Suite 500, Washington, DC 20005–3917. nications made to an Ethics Counselor

404 Office of the Secretary of Defense § 84.32 in seeking such advice are not privi- sonally and substantially on any occa- leged. sion and in a manner involving deci- (2) Ethics counseling and advice are sion-making responsibilities with re- personal to the current or former DoD spect to a contract for the system; employee. They do not extend to any- (D) Through contact with the defense one else, including his business, em- contractor; and ployer, or prospective employer. (iii) 0–7s and above, and civilians (b) Delegation of authority. The DoD serving in positions for which the rate component DAEO may specifically del- of pay was equal to or higher than the egate authority in writing for Ethics minimum rate of pay for a Senior Ex- Counselors within the DoD component ecutive Service position, who during to provide written advice under 10 the two-year period prior to separa- U.S.C. 2397b and 41 U.S.C. 423. In any tion, acted as a ‘‘primary representa- case where the local Ethics Counselor tive of the United States’’ in negotia- does not have the authority by written tion of a defense contract in an amount delegation, he shall provide the coun- in excess of $10 million or settlement of seling and obtain the request for advice an unresolved claim exceeding $10 mil- and necessary supporting information lion. An unresolved claim is valued by from the DoD employee and forward it the greater of the amount of the claim to the DoD component DAEO or des- or the amount of the settlement. ignee who has been specifically dele- (2) Penalties and effective dates. gated the authority in writing to issue Former DoD employees who knowingly the written advice. violate this statute are subject to a § 84.32 Restrictions resulting from pro- civil fine up to $250,000. Defense con- curement activities. tractors who knowingly offer or provide any compensation to individuals (a) 10 U.S.C. 2397b—(1) Restrictions. in violation of this statute are subject This statute prohibits the following to a civil fine up to $500,000. three categories of former DoD employees from accepting compensation (i) The effective date of this law was from the concerned defense contractor April 16, 1987. The law does not prohibit during the two-year period after sepa- the continuation of defense contractor ration from DoD: employment begun or compensation (i) 0–4s and above, and civilians serv- accepted before then. If an employee ing in positions for which the rate of separated from DoD prior to April 16, pay was equal to or higher than the 1987, the statute does not apply. How- minimum rate of a GS/GM–13, who: ever, former DoD employees who were (A) On a majority of their working still employed or on active duty on or days during a two-year period prior to after April 16, 1987 must comply fully separation; with its provisions, if within its scope. (B) Performed a procurement func- (ii) For the period of December 1, 1989 tion relating to a defense contract; until May 31, 1991, the statute was sus- (C) At a site or plant owned or oper- pended and employment or acceptance ated by the defense contractor and of compensation during that period which was the DoD employee’s prin- could not violate the statute. Ques- cipal work location. tions about the effect of the suspension (ii) 0–4s and above, and civilians serv- should be referred to the local Ethics ing in positions for which the rate of Counselor. pay was equal to or higher than the (3) Written opinion. (i) Before accept- minimum rate of pay for a GS/GM–13, ing compensation from a defense con- who: tractor, a DoD employee or former DoD (A) On a majority of their working employee is, by statute, entitled to a days during the two-year period prior written opinion regarding the applica- to separation; bility of this statute to his specific cir- (B) Performed a procurement func- cumstances. A request for such written tion related to a major defense system opinion shall be submitted in writing and; to the Ethics Counselor serving the (C) In the performance of the pro- DoD component command or organiza- curement function, participated per- tion the DoD employee is leaving or

405 § 84.33 32 CFR Ch. I (7–1–97 Edition) from which he has separated. The re- any negotiations leading to the award quest shall set forth all information or modification of a defense contract relevant to the request. for such procurement; or (ii) Ethics Counselors who have not (ii) Participating personally and sub- been delegated authority in writing to stantially on behalf of the competing issue 10 U.S.C. 2397b written opinions contractor in the performance of such shall promptly forward the request to defense contract. the DoD component DAEO or designee (2) Period of restrictions. Both restric- who has such authority. tions apply for a period of two years (iii) Written opinions shall be issued from the date of the former DoD em- within 30 days of receiving the request ployee’s last personal and substantial together with all necessary informa- participation in the procurement on tion. behalf of the Federal Government. Nei- (iv) A written opinion that this stat- ther applies unless the individual was a ute is not applicable to a specific situa- DoD employee of the Federal Govern- tion, if based on a complete disclosure ment at the time he served as a proof all relevant information, creates a curement official. conclusive presumption that the re- (3) Written opinion. (i) A DoD em- ceipt of compensation from a particu- ployee or former DoD employee who is lar defense contractor is not a viola- or was a procurement official is, by tion of the law. statute, entitled to a written opinion (v) A copy of each 10 U.S.C. 2397b regarding the applicability of this stat- written opinion shall be retained by ute to his specific circumstances. A re- the DoD component DAEO or designee quest for such an opinion shall be sub- for three years. mitted in writing to the Ethics Coun- (4) DoD interpretation of 10 U.S.C. selor serving the DoD component com- 2397b. (i) If a DoD employee had been mand or organization the DoD em- conducting all negotiations with a $10 ployee is leaving or from which he has million defense contractor on a major separated. The request shall set forth defense contract action of $10 million all information relevant to the request. or more, but a superior DoD employee See 48 CFR 3.104–8(e). intervened directly in the negotiating (ii) Ethics Counselors who have not process, both DoD employees would be been delegated specific authority in considered ‘‘primary’’ representatives writing to issue 41 U.S.C. 423 written for that defense contract action. opinions shall promptly forward the re- (ii) 10 U.S.C. 2397b does not prohibit quest to the DoD component DAEO or any former DoD employee from accept- designee who has such authority. ing compensation from any defense (iii) Written opinions shall be issued contractor that, during the fiscal year within 30 days of receiving the request, preceding the fiscal year in which com- together with all necessary informa- pensation is accepted, was not a de- tion. fense contractor or was a defense con- (iv) Where the DoD employee or tractor whose contracts totalled less former DoD employee relies in good than $10 million. faith on a written opinion that this (iii) 10 U.S.C. 2397b prohibits employ- statute is not applicable to a specific ment with particular defense contrac- situation, the DoD employee or former tors, not subcontractors, but former DoD employee shall not be found to DoD employees cannot avoid its con- have knowingly violated the restric- sequences merely by forming their own tions of the statute. company and then ‘‘subcontracting’’ (v) A copy of each 41 U.S.C. 423 opin- themselves to otherwise prohibited de- ion shall be retained by the DoD com- fense contractors. ponent DAEO or designee for three (b) 41 U.S.C. 423—(1) Restrictions. This years. statute restricts a former DoD employee who was a procurement official § 84.33 Restrictions on retired military with respect to a particular procure- members. ment from knowingly: (a) 18 U.S.C. 281(a). This statute re- (i) Participating in any manner on stricts the selling activities of retired behalf of a competing contractor in military officers. The provisions of this

406 Office of the Secretary of Defense § 84.33 statute were suspended by the Federal (B) Technical contacts for the pur- Acquisition Streamlining Act of 1994 pose of conferring with non-contract- through December 31, 1996. ing technical specialists to acquire in- (1) Restrictions. A criminal statute, 18 formation this is available to all pro- U.S.C. 281(a), provides that for a period spective defense contractors, provided of two years after retiring, no retired that these contacts do not otherwise military officer may receive compensa- involve ‘‘selling’’ as discussed in para- tion for representing any other individ- graph (a)(2)(i) of this section. See 42 ual in the sale of anything to the Fed- Comp. Gen. 236.241; eral Government through the depart- (C) Contacts subsequent to the execu- ment in which he holds a retired station of a defense contract relating to tus. performance or progress, if they do not (i) The term ‘‘department’’ refers to include modification of the defense individual DoD components, not DoD contract or ‘‘selling’’ as discussed in as a whole, insofar as it concerns re- paragraph (a)(2)(i) of this section. tired military officers. For example, (b) 18 U.S.C. 281(b). For a period of this statute does not prohibit retired two years after terminating service Navy and Marine Corps officers from with the Federal Government, a retired selling to the Departments of the Army military officer may not act as an or Air Force. agent or attorney for the prosecution (ii) The term ‘‘anything’’ in the or assist in the prosecution of any phrase ‘‘sale of anything’’ has been claim against the United States involv- construed by DoJ to encompass both ing the department in which he holds a goods and services. retired status or which concerns a sub- (iii) DoD has determined that this ject with which the military officer statute does not prohibit the sale of was directly connected while on active personal services when the retiree is duty. A violation on this statute is only representing himself. However, punishable by a $10,000 fine and one sale of personal services may not in- year imprisonment. clude the work product of a closely (c) Restrictions on Federal Government held corporation where individuals employment—(1) Dual compensation laws. other than the retiree contribute to A retired member of any uniformed the services provided. service who holds a civilian position (2) Definition of ‘‘selling.’’ (i) For the with the Federal Government is sub- purpose of this statute, ‘selling’’ ject to reduction of retired pay while means: receiving pay from a Federal Govern- (A) Signing a bid, proposal, or con- ment civilian position. The term ‘‘re- tract; tired member’’ means anyone, officer (B) Negotiating a contract; or enlisted, entitled to receive retired (C) Contacting a DoD employee to ob- pay. The term ‘‘retired pay’’ includes tain or negotiate defense contracts, ne- both retired and retainer pay. The cur- gotiate or discuss changes in specifica- rent law generally applies to retired tions, price, cost allowances, or other regular officers, retired at any time, terms of a defense contract, or settle and to all former members of the uni- disputes concerning performance of a formed services who left active duty defense contract; or after January 11, 1979. See 5 U.S.C. 5532 (D) Any other liaison activity with a for exceptions to this general rule. view toward the ultimate consumma- (i) The dual compensation reduction tion of a sale although the actual de- formulas. There are two provisions in fense contract is negotiated subse- the current dual compensation law quently by another person. which may operate to reduce the re- (ii) Activities which are not consid- tired pay of retired members of the ered ‘‘selling’’ include: uniformed services who hold Federal (A) Purely social contacts, as long as Government civilian positions. there is an independent basis for the (A) The first reduction provision. The social relationship and no promotion of first reduction provision applies only a product or attempt to influence a to retired regular officers who retired procurement; at any time. This provision operates to

407 § 84.33 32 CFR Ch. I (7–1–97 Edition) reduce the retired pay of a retired reg- (ii) Waivers. (A) A retired member ular military officer receiving pay may, in certain limited circumstances, from a Federal Government civilian obtain a waiver so that his retired pay position regardless of the amount of would not be reduced while holding a salary from that civilian position. It Federal Government civilian position. provides that such retired military of- See 5 U.S.C. 5532(g). The circumstances ficer is entitled to receive the full pay under which a waiver may be granted of the civilian position, but retired pay are: will be reduced to an annual rate equal (1) On a case by-case basis for a re- to base amount plus one-half of the retired member holding a Federal Gov- mainder of the retired pay, if any. The ernment civilian position for which base amount is increased periodically there is exceptional difficulty in re- to reflect changes in the Consumer cruiting or retaining a qualified em- Price Index, See 5 U.S.C. 5532(b). ployee; or (B) The second reduction provision. The (2) For temporary employment that second reduction provision applies, in is necessary due to an emergency in- general, to all retired military mem- volving a direct threat to life or prop- bers who first received retired pay erty, or under other unusual cir- after January 11, 1979. The reduction cumstances. depends upon the amount of pay re- (B) The Director, OPM, may grant a ceived from the Federal Government waiver at the request of the Head of an civilian position. This provision oper- Executive agency. Additionally, the ates to reduce the retired pay of a re- Director, OPM, may delegate to an tired member when the annual rate of agency the authority to grant waivers pay for the civilian position combined for the temporary employment of re- with the annual rate of retired pay (retired members during emergencies or duced in the case of retired regular of- other unusual circumstances, but not ficers as discussed in § 84.33(c)(1)(i)(A)) for employment necessitated by excep- exceeds the annual rate of basic pay for tional difficulties in recruiting or re- level V of the Executive Schedule. Re- taining qualified individuals. The Di- ductions are computed as follows: rector, OPM, has delegated to DoD au- (1) If the combination of pay from the thority to approve dual compensation civilian position and retired pay ex- restriction waivers in certain cir- ceeds the amount currently paid for cumstances at installations scheduled level V of the Executive Schedule, the for closure. retired pay will be reduced to keep the (C) Waivers are to be the exception, total at the level V limit. not the rule. If appropriate, however, a (2) Reductions to retired pay are waiver may be obtained for either or made per pay period whenever the com- both of the dual compensation reduc- bination of the two salaries for the pay tions. See 5 CFR part 553 for procedures period exceeds the pay for a level V po- for obtaining a waiver. sition for that pay period. Reductions (2) Post-military service employment in made in such pay periods are not re- DoD under 5 U.S.C. 3326. As of Novem- fundable even when the combined pay ber 6, 1992, the suspension of this provi- amounts for the total year is less than sion ended. See DoD Directive 1402.1.23 the annual rate for level V of the Exec- To avoid appearances of favoritism or utive Schedule; preferential treatment, retired mili- (3) The amount of retired pay may tary members may not be selected to not be reduced to an amount less than fill civil service positions in DoD (in- the amount deducted from the retired cluding non-appropriated fund instru- pay as a result of participation in any mentalities within 180 days following survivor’s benefits in connection with retirement unless: retired pay or veterans insurance pro- (i) The appointment is authorized by grams and no reductions shall be made the Secretary of a Military Depart- to retired pay based, in whole or in ment or designee, or by OPM if the po- part, upon disability incurred in the sition is in the competitive service; line of duty as a direct result of armed conflict or during a period of war. 23 See footnote 4 to § 84.7(d).

408 Office of the Secretary of Defense § 84.35

(ii) The minimum rate of basic pay file a registration statement with the for the position has been increased U.S. Attorney General. under 5 U.S.C. 5305; or (iii) A state of national emergency [59 FR 13214, Mar. 21, 1994, as amended at 60 FR 20030, 20032, Apr. 24, 1995] exists. (d) Foreign employment restrictions. (1) § 84.34 Restrictions on former senior Article I, Section 9, Clause 8, of the appointees. Constitution of the United States prohibits any person holding any office of Executive Order 12834 (58 FR 5911) re- profit or trust under the Federal Gov- quires contractual ethics commitments ernment from accepting any present, regarding post-Government service em- emolument, office, or title of any kind ployment from full-time, non-career whatever from any king, prince, or for- Presidential, Vice-Presidential or eign state without the consent of Con- agency Head appointees in an Execu- gress. tive agency whose rate of basic pay is (i) This provision prohibits employ- not less than the rate for level V of the ment of all retired military members, Executive Schedule, except for those both officer and enlisted and both regu- appointed as members of the senior for- lar and reserve, by a foreign govern- eign service or solely as uniformed ment unless Congressional consent is service commissioned officers. See Ex- first granted. See 44 Comp. Gen. 130. ecutive Order 12834 and OGE Form (ii) Employment by educational or 203,24 ‘‘Senior Appointee Pledge,’’ Janu- commercial institutions owned, oper- ary 1993, and OGE Form 204,25 ‘‘Trade ated, or controlled by a foreign govern- Negotiation Pledge,’’ January 1993. ment is included within the scope of this restriction. [59 FR 13214, Mar. 21, 1994, as amended at 60 (iii) The penalty for violation is FR 20030, Apr. 24, 1995] withholding the retired military member’s retired pay in an amount equal to § 84.35 Restrictions on dealing with the foreign salary illegally received. current or former DoD employees. See 61 Comp. Gen. 306. (a) General rule. Current DoD employ- (2) Congress has consented to the ac- ees shall not knowingly deal, on behalf ceptance of civil employment with a of the Federal Government, with cur- foreign government by, among others, rent or former DoD employees whose retired regular military members and participation in the transaction vio- reserve military members, if both the lates any statute or DoD directive, reg- Secretary of the Military Department ulation or policy. and the Secretary of State approve the (b) Terminal leave. employment. See 37 U.S.C. 908. Because (1) Military members on terminal approval is prospective only, foreign civil employment should not be accept- leave may accept civilian employment ed until approval has been obtained. with the Federal Government and are Retired military members who wish to entitled to the pay of that civilian po- accept such employment should submit sition in addition to the pay and allow- a written request for approval to the ances to which entitled while on termi- Secretary of their Military Department nal leave. See 5 U.S.C. 5534a. through appropriate channels. The re- (2) A military officer on active duty quest must fully describe the con- may not accept a civil office with a templated employment and the nature State or local government, nor may he and extent of the involvement with the perform the duties of such an office. foreign government. See 10 U.S.C. 973(b)(3). This applies (3) A former military member desir- while the military officer is on termi- ing employment with a foreign govern- nal leave. See 56 Comp. Gen 855. ment or any foreign business interest may be required to register as an agent of a foreign principal under the Foreign 24 Copies are available from U.S. Office of Agents Registration Act of 1938, 22 Government Ethics, 1201 New York Avenue U.S.C. 611 et seq. Any person who acts NW., Suite 500, Washington, DC 20005–3917. as an agent of a foreign principal must 25 See footnote 23 to § 84.34.

409 § 84.36 32 CFR Ch. I (7–1–97 Edition)

§ 84.36 Reports of DoD and defense re- resolve any apparent violations to en- lated employment (DD form 1787). sure there are no actual violations. (a) Individuals required to file. The fol- (3) If the DoD component DAEO or lowing former DoD employees are re- designee believes that additional infor- quired by 10 U.S.C. 2397 to file DD Form mation is required, the reporting indi- 1787 with their former DoD component: vidual shall be notified of the addi- (1) Each former DoD employee of a tional information required and the DoD component who: date by which it must be submitted. (i) Served at a pay rate equal to or The reporting individual shall submit greater than the minimum rate for a the required information directly to GS/GM–13, or served on active duty at the DoD component DAEO or designee. least ten years and held the grade of 0– (4) When the DoD component DAEO 4 or above at any time during his serv- or designee has completed the review ice; and accomplished any necessary reme- (ii) Within the two-year period imme- dial action, he shall sign and date the diately following termination of serv- report and dispose of it in accordance ice or employment with the DoD com- with paragraph (d)(2) of this section. ponent, is employed by a defense con- (5) If the DoD component DAEO or tractor who, during the preceding one- designee concludes that the reporting year period, was awarded $10 million or individual is not in compliance with more in defense contracts; and applicable laws or regulations, the DoD (iii) Is employed by or performs serv- component DAEO or designee shall: ices for the defense contractor and re- (i) Notify the reporting individual of ceives compensation of or is salaried at the preliminary determination; a rate of $25,000 per year or more from (ii) Afford the reporting individual an the defense contractor. opportunity for personal consultation, (2) Compensation is received by a re- if practicable; porting individual if it is paid to a (iii) Determine what remedial action business entity with which the report- should be taken to bring the reporting ing individual is affiliated in exchange individual into compliance; and for services rendered by that reporting (iv) Notify the reporting individual of individual; the remedial action required, indicat- (3) A rate of $25,000 per year equates ing a date by which that action must to $12 per hour. be taken, normally within 90 days. (b) Time of filing. A former DoD employee shall file a report with his (6) When the DoD component DAEO former DoD component DAEO or des- or designee determines that a reporting ignee within 90 days of entering on individual has complied fully with the duty with the defense contractor. remedial measures, a notation to that (c) Review. (1) When the report is effect shall be made in the comment filed, the DoD component DAEO or des- section of the report. Then the DoD ignee shall review the report to deter- component DAEO or designee shall mine whether: sign and date the report as the review- (i) Each item is completed and suffi- ing official and dispose of it in accord- cient information is provided; and ance with paragraph (d)(2) of this sec- (ii) Whether the information indi- tion. cates any violation or apparent viola- (d) Disposition. tion of any of the conflicts of interest, (1) After the Ethics Counselor signs standards of conduct, procurement in- and dates the report, the Ethics Coun- tegrity, and related laws and regula- selor shall send the original to the DoD tions. Component DAEO or designee, who (2) The DoD component DAEO or des- shall forward it, together with all ignee need not audit the report. Disclo- other such reports that were received sures are to be taken at ‘‘face value’’ during the previous calendar year, to unless there is a patent omission or SOCO not later than March 15. ambiguity or the official has independ- (2) The DoD Component DAEO or des- ent knowledge of matters outside the ignee shall ensure that appropriate report. However, it is expected that the data from each DD Form 1787 is ex- DoD component DAEO or designee will tracted and sent, together with all

410 Office of the Secretary of Defense § 84.38 other such data from other such re- ment service employment activities of ports that were received during the former or retired DoD employees also previous calendar year for the entire provide for specific criminal and ad- DoD Component, by March 15 to the ministrative sanctions. This subpart Defense Manpower Data Center sets out the requirements for reporting (DMDC) where a consolidated report to and inquiry to ensure that ethics-relat- Congress is compiled. DMDC will ac- ed laws and regulations are properly cept data only on computer disk using enforced and that appropriate adminis- any common word processing software trative or disciplinary action is taken. or ASCII. (3) If steps ensuring compliance with § 84.38 Reporting procedures. applicable law and regulations are not taken by the date established, the Eth- (a) Reporting suspected violations. With ics Counselor shall report the matter the exception of the provisions of 41 to the DoD Component DAEO and take U.S.C. 423 that are addressed in para- whatever other action might be re- graph (c) of this section, DoD employ- quired in accordance with subchapter J ees who suspect that a violation of this of this part. part has occurred shall report the mat- (4) DD Forms 1787 shall be retained ter to any of the following: by SOCO for six years from the date of (1) The DoD employee’s agency des- filing with SOCO. ignee; (e) Public availability of reports. DD (2) The suspected violator’s agency Forms 1787 must be made available for designee; public examination upon request after (3) The head of the DoD component the reports are filed with SOCO, unless command or organization; exempted pursuant to law. Reporting (4) Any Ethics Counselor; individuals are personally responsible (5) The DoD component’s IG; for ensuring that their reports are ac- (6) The DoD component’s criminal in- curate, complete, and timely. (f) Penalties—(1) Administrative pen- vestigative office; or alties. Anyone failing to file a report or (7) The DoD hotline or DoD compo- falsifying or failing to file required in- nent hotline. formation, may be subject to any appli- (b) Receipt of report. (1) DoD compo- cable personnel or other action in ac- nent investigative offices shall consult cordance with applicable law or regula- local Ethics Counselors as appropriate tion, including adverse action. An ad- to ensure that up-to-date expertise is ministrative penalty of up to $10,000 applied in the investigation of each may be imposed in accordance with 10 suspected violations of this part in rec- U.S.C. 2397. ognition of rapidly changing rules and (2) Criminal liability. Any individual statutes in the ethics area. who knowingly or willfully falsifies in- (2) If a suspected violation is reported formation on a report may be subject to some entity other than those named to criminal prosecution under 18 U.S.C. in paragraph (a)(4) through (a)(7) of 1001. this section, then the notified person [59 FR 13214, Mar. 21, 1994, as amended at 60 shall promptly report the matter to his FR 20032, Apr. 24, 1995] Ethics Counselor. (3) An Ethics Counselor who receives Subpart J—Enforcement a report shall review the facts and, if the facts tend to support a violation, § 84.37 Enforcement of the provisions report the allegation to the appro- of the Joint Ethics Regulation. priate investigative organization or, Penalties for violation of the rules through the chain of command or su- republished in, and prescribed by, this pervision, to the head of the DoD com- part include the full range of applica- ponent command or organization of the ble criminal, civil and administrative suspected violator. In addition, the sanctions for current DoD employees, Ethics Counselor must ensure that the including punishment under the UCMJ following is accomplished: for military members. Many of the (i) If a violation of 18 U.S.C. 203, 205, statutes that regulate the post-Govern- 207, 208 or 209 is suspected, the matter

411 § 84.38 32 CFR Ch. I (7–1–97 Edition) shall be reported to the DoD component DAEO in the same manner as in nent’s criminal investigative organiza- paragraph (b)(3)(i)(A) of this section. If tion. The investigative organization is the Ethics Counselor believes that the responsible for investigating the alle- Secretary of Defense should take ac- gation and notifying DoJ in accordance tion pursuant to 10 U.S.C. 2397a(d), the with DoD Directive 5525.7 26. In addi- Ethics Counselor shall forward a writ- tion, the Ethics Counselor shall: ten report to the GC, DoD through the (A) Report to the DoD component DoD component DAEO with a rec- DAEO as follows: ommendation for action; (1) The name and position (optional) (A) The report need be filed only of the informant; when the Ethics Counselor determines (2) The name and position of the suspect; that there is sufficient evidence to be- (3) The suspected offense; lieve that a violation has occurred; (4) The facts, as known or believed; (v) If a violation of 10 U.S.C. 2397b is (5) The status of any action being suspected, the Ethics Counselor shall taken. report the matter to the DoD compo- (B) File periodic follow-up reports nent DAEO in the same manner as in with the DoD component DAEO until a paragraph (b)(3)(i)(A) of this section; final determination is made; (vi) If it is suspected that an individ- (C) If the matter is referred to the ual is receiving retired pay contrary to DoJ or the U.S. Attorney, include OGE 37 U.S.C. 801, a report of the matter Form 202,27 ‘‘Notification of Conflict of shall be made to the Defense Finance Interest Referral,’’ January 1992, in the and Accounting Service. A copy of that referral packet and send a copy to the report shall be sent to the DoD compo- DoD component DAEO for forwarding nent DAEO; to OGE. (vii) If a violation of 5 CFR part 2635 (ii) If a violation of 18 U.S.C. 201 or involving a loss to the Federal Govern- 281 is suspected, it shall be handled in ment of $5,000 or more is suspected, the the same manner as paragraph (b)(3)(i)(A) of this section except that Ethics Counselor shall report the mat- OGE Form 202 is not used for referrals; ter to the DoD component DAEO in the (iii) If a violation of 10 U.S.C. 2397 is same manner as in paragraph suspected, the Ethics Counselor shall (b)(3)(i)(A) of this section. inquire into the matter and, if substan- (4) In addition, if any of the previous tiated, attempt to obtain compliance. violations fall within a DoD compo- If these efforts fail, the Ethics Coun- nent’s procurement fraud program, the selor shall forward a written report to Ethics Counselor shall ensure that re- the GC, DoD through the DoD compo- ferrals, coordinations, and reports re- nent DAEO with a recommendation for quired by that program are accom- action by the Secretary of Defense pur- plished. If the matter includes a sus- suant to 10 U.S.C. 2397(f); pected violation of the Gratuities (A) The report need be filed only Clause in a defense contract, the Ethics when the Ethics Counselor determines Counselor shall report the matter in that there is sufficient evidence to be- accordance with DoD component proce- lieve that a violation has occurred; dures issued pursuant to 48 CFR 3.203. (B) The report shall include all rel- See paragraph (c) of this section. evant facts, a summary of witness (5) For matters not handled within statements, and a justification for the the DoD component’s procurement recommendation to refer or not to fraud program, any civil or criminal refer the violation for enforcement ac- referrals to DoJ or the local U.S. At- tion. torney of violations of this part shall (iv) If a violation of 10 U.S.C. 2397a is be coordinated with the DoD compo- suspected, the Ethics Counselor shall report the matter to the DoD component DAEO. The DoD component DAEO shall be informed of referrals of violations of this part handled within the 26 See footnote 4 to § 84.7(d). 27 Copies are available from U.S. Office of DoD component’s procurement fraud Government Ethics, 1201 New York Avenue program. NW., Suite 500, Washington, DC 20005–3917. (c) Violations of 41 U.S.C. 423.

412 Office of the Secretary of Defense § 84.41

(1) Administrative sanctions. Suspected amount if the individual is determined violations of 41 U.S.C. 423 shall be proc- to have accepted or continued employ- essed in accordance with 48 CFR 3.104– ment with a defense contractor during 11. See 41 U.S.C. 423(h)(2). the ten-year period beginning with the (2) Civil sanctions. Suspected civil vio- date of separation from Federal Gov- lations may be referred through the ernment service. DoD component DAEO to DoJ. See 41 (2) DoD may take other appropriate U.S.C. 423(i). disciplinary action when indicated by (3) Criminal sanctions. Suspected vio- the outcome of a case in accordance lations that involve the improper re- with the laws or regulations violated. lease of source selection information (e) Judicial review. Any individual or should be referred to the appropriate non-Federal entity found in violation criminal investigative organization. as described, and against whom an ad- See 41 U.S.C. 423(j). ministrative sanction is imposed, may (4) Reporting. Any suspected violation seek judicial review of the final admin- of the provisions of 41 U.S.C. 423 shall istrative determination. be reported as soon as practicable to the appropriate contracting officer. Subpart K—Training See 41 U.S.C. 423(h)(1). Any actions taken as the result of the above refer- § 84.40 Office of Government Ethics rals shall be reported to the DoD com- regulation. ponent DAEO in accordance with para- See 5 CFR part 2638, ‘‘Office of Gov- graph (b)(3)(i)(A) of this section. ernment Ethics and Executive Agency [59 FR 13214, Mar. 21, 1994, as amended at 60 Ethics Program Responsibilities.’’ FR 20030, 20032, Apr. 24, 1995] § 84.41 DoD guidance. § 84.39 Administrative enforcement (a) Initial and annual ethics training. procedures. (1) Overall responsibility for initial and (a) Statutory authority. 10 U.S.C. 2397 annual ethics training programs rests and 2397a provide for administrative with the Head of each DoD component enforcement action and sanctions im- acting through his DAEO. The Head of posed by the Secretary of Defense the DoD component shall ensure that against individuals and non-Federal adequate resources are available to im- entities not in compliance with these plement the requirements of this sub- statutes. part. Support shall be provided by the (b) Procedures for pursuing administra- DoD component legal and personnel of- tive action. All recommendations for fices, as necessary. enforcement of 10 U.S.C. 2397 and 2397a (2) In the Military Departments, re- forwarded to the Secretary of Defense sponsibility for implementation of eth- shall be initiated, investigated and ics training programs rests with the processed in accordance with the re- heads of DoD component commands or quirements of the Administrative Pro- organizations who shall ensure that cedure Act. See 5 U.S.C. 551 et seq. ethics training is accomplished in ac- (c) Hearing examiners. In accordance cordance with this subpart. with 5 U.S.C. 556, DoD shall appoint (3) Training shall be accomplished hearing examiners from within DoD to using material authorized by the DoD preside at the taking of evidence and component DAEO or designee in meet- provide recommendations to DoD as to ing the requirements of this subpart. final action. Ethics Counselors may augment this (d) Administrative sanctions. (1) DoD material with additional training ma- may take appropriate disciplinary ac- terial needed to address specific ethics tion whenever indicated by the out- issues peculiar to their organization. come of a case involving violations of (4) DoD component Heads and DoD 10 U.S.C. 2397 and 2397a by: component DAEOs have the authority (i) Imposing an administrative pen- to require that DoD employees other alty, not to exceed $10,000; than the ones covered by 5 CFR part (ii) With respect to violations of 10 2638 receive annual ethics training. U.S.C. 2397a, imposing an additional (b) Procurment integrity training. (1) administrative penalty of a particular Each DoD component shall establish,

413 § 84.42 32 CFR Ch. I (7–1–97 Edition) or insure that its DoD employees have (2) CIAET shall be accomplished in access to, a procurement integrity person by a Qualified Individual or by training program. Such program shall recording in the presence of a Qualified be the responsibility of the DoD com- Individual, subject to the following ex- ponent’s official in charge of acquisi- ceptions: tion, with the assistance of the legal (i) If the DoD component DAEO de- and personnel offices, under the overall termines it is impractical to accom- guidance of the GC, DoD. The procure- plish CIAET in the presence of a Quali- ment integrity training program shall, fied Individual, DoD employees who are at a minimum, comply with 48 CFR not required to receive AET may be 3.104–12. trained by other means within the min- (2) Heads of DoD components shall imum training requirements set out by establish procedures to ensure that OGE in 5 CFR 2638.703 provided that, DoD employees receive (or have re- with the exception of enlisted mem- ceived) procurement integrity training bers, such training was completed by and sign the Option Form (OF) 333, February 3, 1993; ‘‘Procurement Integrity Training Cer- (ii) If the DoD component DAEO de- tificate for Procurement Officials,’’ or termines it is impractical to accom- similar certificate. Out-processing pro- plish CIAET training in the presence of cedures shall also be established to en- a Qualified Individual, then special sure that DoD employees who leave an Government employees and military organization verify their status with officers serving on active duty fewer regard to the restrictions contained in than 30 consecutive days annually may the Procurement Integrity Act (41 be trained by other means within the U.S.C. 423). An original copy of OF 333 minimum training requirements set or similar certificate should be placed out by OGE in 5 CFR 2638.704; in the appropriate personnel folder or (iii) If the DoD component DAEO other permanent file as determined by makes, with the approval of OGE, a the DoD component. The individual ex- written determination that it is im- ecutive the certificate should also re- practical to accomplish CIAET train- tain a copy. ing in the presence of a Qualified Indi- (3) The following DoD employees vidual, then DoD employees who are should receive procurement integrity required to receive AET may be trained training and execute the required cer- by other means within the minimum tificate: training requirement set out by OGE in 5 CFR 2638.704. OGE requires the writ- (i) All DoD employees who are mem- ten determination to identify the par- bers of the acquisition workforce; ticular DoD employees or groups of (ii) All DoD employees who are en- DoD employees concerned and the spe- gaged in, or who might become engaged cific circumstances that make the in, procurement official activities, as presence of a Qualified Individual im- set forth in 41 U.S.C. 423 and 48 CFR practical (mere administrative incon- 3.104. venience or cost to an agency, standing (4) This requirement may be waived alone, shall not justify such determina- if the head of the DoD component com- tion). mand or organization determines that (3) The term ‘‘immediate office’’ as the DoD employee will not act as a pro- used in 5 CFR 2638.703 shall mean the curement official while assigned to the local Ethics Counselor’s. organization. (4) CIAET shall be a minimum of one hour. § 84.42 Procedures. (5) Those DoD employees who are re- (a) Combined initial and annual ethics quired to receive AET will satisfy their training (CIAET) for calendar year 1993. 1993 annual ethics training obligation (1) By December 31, 1993, all DoD em- if they attended CIAET in 1992 or 1993. ployees, including those required to re- (b) Initial ethics training (IET) for new ceive Annual Ethics Training (AET), DoD employees. (1) Within 90 days of en- non-appropriated fund instrumentality tering on duty, all DoD employees who employees, and enlisted members, shall did not receive CIAET, including those receive CIAET. required to receive AET and enlisted

414 Office of the Secretary of Defense § 84.42 members, shall receive IET for new is impractical to accomplish AET in DoD employees. the presence of a Qualified Individual, (2) IET shall be accomplished in per- then DoD employees other than special son by a Qualified Individual or by re- Government employees and military cording in the presence of a Qualified members serving fewer than 30 days an- Individual, and such IET shall qualify nually may be trained by other means as AET for the year the new DoD em- within the minimum training require- ployees entered on duty, subject to the ment set out by OGE in 5 CFR 2638.704. following exceptions: OGE requires the written determina- (i) If the DoD component DAEO de- tion to identify the particular DoD em- termines it is impractical to accom- ployees or groups of DoD employees plish IET in the presence of a Qualified concerned and the specific cir- Individual, DoD employees who are not cumstances that make the presence of required to receive AET may be trained a Qualified Individual impractical by other means within the minimum (mere administrative inconvenience or training requirements set out by OGE cost to an agency, standing alone, shall in 5 CFR 2638.703; not justify such determination). (ii) If the DoD component DAEO de- (3) AET shall be a minimum of one termines that it is impractical to ac- hour. complish IET in the presence of a (d) Annual ethics training plans. DoD Qualified Individual, then DoD employ- agency (see definition of ‘‘agency’’) ees who are required to receive AET ethics training plans for 1994 and subse- may be trained by other means within quent ethics training plans in accord- the minimum training requirement set ance with paragraphs (b) and (c) of this out by OGE in 5 CFR 2638.704 provided section shall be submitted by DoD that such DoD employees receive addi- component DAEOs or designees ditional annual ethics training, either rectly to OGE with copies furnished to CIAET, IET or AET, if more than three SOCO. DoD components that are not months remain of the calendar year in agencies shall submit annual ethics which those DoD employees entered on training plans to SOCO for approval duty. and inclusion in the ethics training (3) The term ‘‘immediate office’’ as plan SOCO submits to OGE. used in 5 CFR 2638.703 shall mean the (e) Ethics training assistance. (1) SOCO local Ethics Counselor’s office. shall make available ethics training (4) IET shall be a minimum of one for ethics trainers on an ongoing basis hour. to ensure that Qualified Individuals are (c) Annual ethics training (AET). (1) uniformly prepared to provide ethics Beginning in calendar year 1994, all training. DoD employees who file an SF 278 or (2) SOCO shall distribute ethics SF 450, contracting officers and pro- training material to all DoD compo- curement officials, shall receive ethics nent DAEOs for use in all types of eth- training annually. ics training. (2) AET shall be accomplished in per- (3) Ethics training material shall in- son by a Qualified Individual or by re- clude a training video with accompany- cording in the presence of a Qualified ing pamphlet, modular ethics training Individual, subject to the following ex- packages with copies of overhead ceptions: slides, facilitator scripts, discussion (i) If the DoD component DAEO de- hypotheticals, and handout material, termines it is impractical to accom- and a programmed text. Other pro- plish AET in the presence of a Quali- grammed texts, correspondence fied Individual, then special Govern- courses, and ethics computer games, ment employees and military officers and materials developed by DoD com- serving fewer than 30 consecutive days ponents will be distributed as they are annually, may be trained by other developed. means within the minimum training (4) In the interest of Federal Govern- requirements set out by OGE in 5 CFR ment efficiency and economy, DoD 2638.704; components that develop ethics train- (ii) If the DoD component DAEO ing develop ethics training material makes a written determination that it independently shall provide a copy of

415 § 84.43 32 CFR Ch. I (7–1–97 Edition) the material to SOCO for distribution training, annotate such lists to indi- to other DoD components. cate when required training was ac- (5) At a minimum, all ethics training complished and retain annotated lists shall include a review of part I of Exec- for three years. utive Order 12674, 5 CFR part 2635 and (d) The DoD SOCO shall: this part. (1) Make ethics and procurement integrity training for ethics trainers § 84.43 Responsibilities. available on an ongoing basis to ensure (a) The Head of each DoD component that Qualified Individuals are uni- shall: formly prepared to provide such train- (1) Exercise personal leadership and ing; take personal responsibility through (2) Distribute ethics and procurement the DoD component DAEO for establishing and maintaining the DoD com- integrity training material to all DoD ponent’s ethics and procurement integ- component DAEOs for use in all types rity training program and shall be per- of ethics and procurement integrity sonally accountable for the DoD com- training; ponent’s compliance with the ethics (3) Certify Qualified Individuals to and procurement integrity training reconduct ethics training who may be quirements; used by DoD components. (2) Provide sufficient resources to en- (e) The director of each DoD compo- able the DoD component DAEO to im- nent personnel office shall, in coordi- plement and administer the DoD com- nation with the DoD component DAEO ponent’s ethics and procurement integ- or designee, establish procedures in co- rity training program. ordination with the DoD component (b) Each DoD component DAEO shall: DAEO or designee to inform new DoD (1) Be responsible for the implemen- employees of their obligation to re- tation and administration of ethics and ceive ethics and procurement integrity procurement integrity training and en- training as required. sure that necessary resources are avail- (f) The administrative officer (or able to accomplish such training; equivalent) of each DoD component (2) Provide periodic ethics and pro- command and organization shall: curement integrity training for Ethics (1) In coordination with the DoD Counselors; (3) Certify Qualified Individuals to component DAEO or designee, develop conduct ethics training. lists of all DoD employees within the (c) The head of each DoD component DoD component command or organiza- command or organization shall: tion who are required to receive ethics (1) Exercise personal leadership and and procurement integrity training; take personal responsibility for estab- (2) In coordination with the DoD lishing and maintaining the com- component DAEO or designee, ensure mand’s or organization’s ethics and that DoD employees with the DoD procurement integrity training pro- component command or organization gram; are scheduled to receive required ethics (2) Be personally accountable for the or procurement integrity training; command’s or organization’s ethics and (3) Annotate such lists to indicate procurement integrity program; when required training was accom- (3) Ensure that DoD employees of the plished and retain annotated lists for command or organization attend re- three years. quired ethics and procurement integ- (g) The DoD employees shall attend rity training; and ethics and procurement integrity (4) Direct administrative officers (or training as required. equivalent) of the command or organization to coordinate with the DoD component DAEO or designee to de- Subpart L—Ethical Conduct velop lists of all DoD employees of the § 84.44 Executive orders. command or organization who are required to receive ethics and procure- (a) See Executive Order 12674. ment integrity training, schedule such (b) See Executive Order 12834.

416 Office of the Secretary of Defense § 84.47

§ 84.45 Code of ethics for Government dence over non-ethical values when service. making ethical decisions. DoD employ- In accordance with 5 U.S.C. 7301 note, ees should carefully consider ethical each agency shall display, in appro- values when making decisions as part priate areas of any Federal Govern- of official duties. ment building in which at least 20 ci- (b) Primary ethical values—(1) Honesty. vilians are regularly employed by the Being truthful, straightforward and agency, copies of the following Code of candid are aspects of honesty. Ethics for Government Service: (i) Truthfulness is required. Decep- tions are easily uncovered and usually CODE OF ETHICS FOR GOVERNMENT SERVICE are. Lies erode credibility and under- Any person in Government service should: mine public confidence. Untruths told I. Put loyalty to the highest moral prin- for seemingly altruistic reasons (to ciples and to country above loyalty to per- prevent hurt feelings, to promote good sons, party, or Government department. II. Uphold the Constitution, laws, and reg- will, etc.) are nonetheless resented by ulations of the United States and of all gov- the recipients. ernments therein and never be a party to (ii) Straightforwardness adds frank- their evasion. ness to truthfulness and is usually nec- III. Give a full day’s labor for a full day’s essary to promote public confidence pay; giving earnest effort and best thought and to ensure effective, efficient con- to the performance of duties. IV. Seek to find and employ more efficient duct of Federal Government oper- and economical ways of getting tasks accom- ations. Truths that are presented in plished. such a way as to lead recipients to con- V. Never discriminate unfairly by the dis- fusion, misinterpretation or inaccurate pensing of special favors or privileges to any- conclusions are not productive. Such one, whether for remuneration or not; and indirect deceptions can promote ill-will never accept, for himself or herself or for and erode openness, especially when family members, favors or benefits under circumstances which might be construed by there is an expectation of frankness. reasonable persons as influencing the per- (iii) Candor is the forthright offering formance of governmental duties. of unrequested information. It is nec- VI. Make no private promises of any kind essary in accordance with the gravity binding upon the duties of office, since a of the situation and the nature of the Government employee has no private word relationships. Candor is required when which can be binding on public duty. VII. Engage in no business with the Gov- a reasonable person would feel be- ernment, either directly or indirectly, which trayed if the information were with- is inconsistent with the conscientious per- held. In some circumstances, silence is formance of governmental duties. dishonest, yet in other circumstances, VIII. Never use any information gained disclosing information would be wrong confidentially in the performance of govern- and perhaps unlawful. mental duties as a means of making private (2) Integrity. Being faithful to one’s profit. IX. Expose corruption wherever discovered. convictions is part of integrity. Fol- X. Uphold these principles, ever conscious lowing principles, acting with honor, that public office is a public trust. maintaining independent judgment and performing duties with impartiality § 84.46 DoD human goals. help to maintain integrity and avoid On April 17, 1990, DoD established conflicts of interest and hypocrisy. human goals. See Appendix C of this (3) Loyalty. There are many syno- part. nyms for loyalty: fidelity, faithfulness, allegiance, devotion and fealty. Loy- § 84.47 Ethical values. alty is the bond that holds the nation (a) General. Ethics are standards by and the Federal Government together which one should act based on values. and the balm against dissension and Values are core beliefs such as duty, conflict. It is not blind obedience or honor, and integrity that motivate at- unquestioning acceptance of the status titudes and actions. Not all values are quo. Loyalty requires careful balancing ethical values (integrity is; happiness among various interests, values and in- is not). Ethical values relate to what is stitutions in the interest of harmony right and wrong and thus take prece- and cohesion.

417 § 84.48 32 CFR Ch. I (7–1–97 Edition)

(4) Accountability. DoD employees are and commitment. They are expected to required to accept responsibility for be all they can be and to strive beyond their decisions and the resulting con- mediocrity. sequences. This includes avoiding even the appearance of impropriety because § 84.48 Ethical decisionmaking. appearances affect public confidence. (a) General. Virtually every one in Accountability promotes careful, well Federal Government service makes thought-out decision-making and lim- job-related decisions. Some of these de- its thoughtless action. cisions may seem more important than (5) Fairness. Open-mindedness and im- others, but all should be preceded by a partiality are important aspects of consideration of ethical ramifications. fairness. DoD employees must be com- In some cases, the ethical element of mitted to justice in the performance of decision-making will go no further their official duties. Decisions must than to consciously acknowledge that not be arbitrary, capricious or biased. there are no significant ethical rami- Individuals must be treated equally fications to consider. In other cases, in- and with tolerance. depth ethical analysis is called for in (6) Compassion is an essential Caring. addition to application of ethics rules. element of good government. Courtesy The following plan for decision-making and kindness, both to those we serve ensures careful review of ethical con- and to those we work with, help to en- sequences when there are alternative sure that individuals are not treated solutions that seem proper under exist- solely as a means to an end. Caring for ing laws and regulations. DoD employ- others is the counterbalance against ees should consider incorporating the the temptation to pursue the mission following plan in official decisionmak- at any cost. ing. (7) Respect. To treat people with dignity, to honor privacy and to allow (b) Ethical decisionmaking plan. self-determination are critical in a (1) Define the problem. Proceed from a government of diverse people. Lack of general statement of the problem to respect leads to a breakdown of loyalty specific statements of the decisions to and honesty within a government and be made. As you take the following brings chaos to the international com- steps, such as identifying goals and munity. naming stakeholders new problems or (8) Promise keeping. No government needed decisions may become apparent. can function for long if its commit- Be willing to add these to your problem ments are not kept. DoD employees are list as you go. obligated to keep their promises in (2) Identify the goal(s). Proceed from a order to promote trust and coopera- general statement of an end result both tion. Because of the importance of long term and short term. Be prepared promise keeping, it is critical that DoD to add to this list as you take the fol- employees only make commitments lowing steps. Goals are something to that are within their authority. strive toward. They are statements of (9) Responsible citizenship. It is the the best possible results. The very best civil duty of every citizen, and espe- is not always achieved for everyone. cially DoD employees, to exercise dis- Many problems do not allow for ‘‘win/ cretion. Public servants are expected win’’ outcomes. Be prepared to fall to engage personal judgment in the somewhat short of some goals for the performance of official duties within sake of ethics and other consider- the limits of their authority so that ations. the will of the people is respected in (3) List applicable law or regulations. accordance with democratic principals. Laws and regulations are basic con- Just must be pursued and injustice straints within which official decisions must be challenged through accepted are made. Until all relevant laws and means. regulations are considered, ethical de- (10) Pursuit of excellence. In public cision-making is impossible. Although service, competence is only the start- it is conceivable that an ethical deci- ing point. DoD employees are expected sion could violate a law or regulation, to set an example of superior diligence such circumstances are rare.

418 Office of the Secretary of Defense Pt 84, App. A

(4) List the ethical values at stake. tions, which are all ethical ones, in Listing the ethical values at stake can order of how close they bring you to awaken you to problems and goals that your goal and solve the problem. you may not have otherwise consid- (10) Commit to and implement the best ered. It may alert you to stakeholders ethical solution. Commitment and im- you may not have recognized. Listing plementation are vital to the ethical the values reminds you of your com- decision-making process. Determining mitment to them at a time when stress which solution is the best ethical one of the problem may cause you to for- is a meaningless exercise unless imple- get. mentation of the ethical solution fol- (5) Name all the stakeholders: A stake- lows. If the right decision is not imple- holder is anyone who is likely to be af- mented, the door is left wide open for fected by a decision. Many stakehold- others to implement unethical solu- ers will be apparent because of the pre- tions. vious steps you already followed. More will occur to you as you give the mat- APPENDIX A TO PART 84—DIGEST OF ter a few minutes of thought. Do not LAWS forget to include yourself and the peo- Section 1. DoD-specific Statutes ple who may depend on you for support, both at work and at home. As you (a) Synopsis of laws. DoD employees and list the stakeholders, try to note the former DoD employees are cautioned that way your decision could affect them. In the descriptions of the laws and regulations in this part should not be the only source re- other words, name what is at stake for lied upon to make decisions regarding their the stakeholder. activities. Although the descriptions do pro- (6) Gather additional information. This vide general guidelines, the descriptions are step is frequently overlooked. The not exhaustive and restrictions are depend- stress from the problem urges speedy ent on the specific facts in a particular case. solutions. However, hasty decisions Accordingly, DoD employees and former DoD usually create problems of their own. employees are encouraged to discuss specific Take the time to gather all necessary cases with a DoD component Ethics Coun- selor (no attorney-client privilege) or with information. Ask questions, demand private counsel. proof when appropriate, check your as- (b) 10 U.S.C. 2397a, ‘‘Requirements Relating to sumptions. Private Employment Contacts Between Certain (7) State all feasible solutions. By this DoD Procurement Officials and Defense Con- time, some feasible solutions will have tractors.’’ presented themselves. Others may be (1) This statute applies to civilian DoD em- found by sharing the lists and informa- ployees at pay rates of GS/GM–11 or above tion you have pulled together and and to military officers in grades 0-4 or above. If such an individual has participated ‘‘brain storming.’’ As you state the fea- in the performance of a procurement func- sible solutions, note which stakehold- tion in connection with a DoD awarded deers could be affected and what might be fense contract and is contacted by the de- gained or lost. fense contractor to whom the defense con- (8) Eliminate unethical options. There tract was awarded regarding future employ- may be solutions that seem to resolve ment opportunities with the defense contrac- the problem and reach the goal but tor, the individual must: which are clearly unethical. Remember (i) Promptly report the contact to his supervisor and to the DoD component DAEO; that short term solutions are not and worth sacrificing our commitment to (ii) Disqualify himself from all participa- ethics. The long term problems of un- tion in the performance of procurement ethical solutions will not be worth the functions relating to contracts of the defense short term advantages. Eliminate the contractor. unethical solutions. (2) A DoD employee is not required to re- (9) Rank remaining solutions. Other so- port an initial contact with a defense con- lutions may not be clearly unethical tractor or disqualify himself if he terminates but may be questionable. You may the contact immediately and rejects any offer of employment. The individual must have to rely on intuition or ‘‘gut feel- make a report and disqualify himself, how- ings’’ to weed out these solutions. Put ever, if subsequent contacts are made. these possible solutions at the bottom (c) 10 U.S.C. 2397, ‘‘Employees or Former Em- of your list. Rank the remaining solu- ployees of Defense Contractors: Reports.’’ This

419 Pt 84, App. A 32 CFR Ch. I (7–1–97 Edition) statute requires all former civilian DoD em- (2) The statute also prohibits a retired ployees GS/GM–13 or above, or military offi- military officer, during the two-year period cers 0–4 or above, to file DD Form 1787 1 for following the military officer’s release from a period of two-years after leaving Federal active duty, from prosecuting or assisting in Government service, if the former DoD em- the prosecution of any claim against the ployee is employed with a defense contractor United States involving the Military Depart- who had been awarded $10 million in defense ment from which the military officer is re- contracts during the year preceding employ- tired, or involving any subject matter with ment of the former DoD employee, and the which the military officer was directly con- former DoD employee receives at least nected while in an active duty status. $25,000 a year ($12 per hour) from the defense contractor. Section 2. Other Laws Related to Standards of Ethical Conduct (d) 10 U.S.C. 2397b, ‘‘Certain Former DoD Procurement Officials: Limitations on Employ- (a) OGE digest. Other ethics statutes are ment by Contractors’’. This statute imposes a summarized in 5 CFR 2635.801(d) and 902. two year prohibition on former civilian DoD (b) Related statues. Engaging in the follow- employees GS/GM–13 and above, and former ing activities may subject current and military officers 0–4 and above, from accept- former DoD employees to criminal and/or ing more than $250 in payment, gift, benefit, other penalties: reward, favor, or gratuity (i.e., compensa- (1) Aiding, abetting, counseling, command- tion) from defense contractors who had de- ing, inducing, or procuring another to com- fense contracts in a total amount greater mit a crime under any criminal statute (18 than $10 million during the fiscal year pre- U.S.C. 2); ceding the fiscal year that such compensa- (2) Concealing or failing to report to proper tion was accepted, if the individual: authorities the commission of a felony under (1) Spent the majority of his working days any criminal statute if the individual knew during the two-year period prior to leaving of the actual commission of the crime (18 Federal Government service performing a U.S.C. 4); procurement function at a site or plant (3) Conspiring with one or more persons to owned or operated by the defense contractor; commit a crime under any criminal statute or or to defraud the United States, if any party to the conspiracy does any act to further the (2) Performed procurement functions relat- object of the conspiracy (18 U.S.C. 371); ing to a major system, on a majority of the (4) Misuse of a Federal Government vehicle individual’s working days during the two- (31 U.S.C. 1344 and 1349(b)); year period prior to leaving Federal Govern- (5) Interference in an examination or per- ment service, and in the performance of sonnel action in connection with Federal those functions participated personally and Government employment (18 U.S.C. 1917); substantially in a manner involving deci- (6) Conversion of Federal Government sion-making responsibilities, through con- property (18 U.S.C. 641); tact with the defense contractor; or (7) Private use of public money (18 U.S.C. (3) In the case of former DoD employees, 653), embezzlement of the money or property Senior Executive Service and above, and of another individual in the possession of a former military officers 0–7 and above, acted DoD employee by reason of his Federal Gov- as a primary representative of the United ernment employment (18 U.S.C. 654); States during the two-year period prior to (8) Certain political activities (5 U.S.C. leaving Federal Government service, in the 7321–7327, 18 U.S.C. 600–603 and 606–607 apply negotiation of a defense contract in an to civilian DoD employees, and DoD Direc- amount in excess of $10 million with the de- tive 1344.10 2 applies to military members); fense contractor, or in the negotiation of an (9) Failing to register under the Foreign unresolved claim in excess of $10 million. Agents Registration Act of 1983 and acting as (e) 18 U.S.C. 281, ‘‘Restriction on Retired Mili- an agent of a foreign principal when required tary Officers Regarding Certain Matters Affect- to register (18 U.S.C. 219); ing the Government.’’ (1) This statute pro- (10) Soliciting contributions for gifts or hibits a retired military officer of the Armed giving gifts to superiors, or accepting gifts Forces from accepting any compensation, for from subordinates (5 U.S.C. 7351) applies to a period of two-years after release from ac- civilians; regulations set out in 5 CFR tive duty, for the representation of any indi- 2635.301 through 2635.304 apply to both mili- vidual in the sale of anything to the United tary and civilian DoD employees; States through the Military Department (11) Accepting, without statutory author- from which the military officer is retired. ity, any present, emolument, office or title, or employment of any kind, from any king, 1 Copies are available from DoD Standards of Conduct Office, Office of General Counsel, 2 Copies may be obtained, at cost, from the 1600 Defense Pentagon, Washington, DC National Technical Information Service, 5285 20301–1600. Port Royal Road, Springfield, VA 22161.

420 Office of the Secretary of Defense Pt. 84, App. C

prince, or foreign state without the consent their official Government positions. Under of the Congress; this restriction applies to certain circumstances, holding a position in any person holding any office or profit in or a private association or organization or un- trust of the Federal Government, including dertaking activities on its behalf could con- all retired military members and regular en- flict with one’s official duties. Holding, how- listed members (Article I, Section 9, Clause ever, a position in a private, non-profit asso- 8, of the Constitution of the United States; ciation or other organization that fosters exceptions to this restriction are at 37 U.S.C. and promotes the general interests of the 908); naval service and which depends, in part, (12) Union activities of military members upon the voluntary efforts of DON personnel (10 U.S.C. 976); acting in their private capacities for leader- (13) Violating merit system principles (5 ship, is unlikely to affect the integrity of the U.S.C. 2301). services of such personnel. Under 18 U.S.C. 208(b)(2), such individuals are not disquali- APPENDIX B TO PART 84—EXCERPTS fied from rendering advice or making rec- FROM DOD PUBLICATIONS ommendations within their chains of command on particular matters affecting such Section 1. Department of Defense Waiver in organizations if: Accordance With 18 U.S.C. 208(b) (1) They disclose their interest or affili- 18 U.S.C. 208(b) permits agencies to grant ation to their supervisor prior to rendering an exemption in writing from 18 U.S.C. 208(a) advice or making recommendations; if the outside financial interest is deemed in (2) The final decision is made by higher au- advance not substantial enough to affect the thority; and integrity of Government services. Categories (3) The individual’s commander does not of financial interests may also be made non- determine that disqualification is otherwise disqualifying by a general regulation pub- required by the best interest of DON or of lished in the FEDERAL REGISTER. Shares of a the United States. widely held, diversified mutual fund or regulated investment company have been ex- Section 4. Department of the Air Force Waiver empted as being too remote or inconsequen- in Accordance With 18 U.S.C. 208(b) tial to affect the integrity of the services of Non-Disqualifying Financial Interest. Air Government personnel. Force personnel need not disqualify them- Section 2. Department of the Army Waiver in selves if the financial holdings are in shares Accordance With 18 U.S.C. 208(b) of a widely held diversified mutual fund or regulated investment company. The indirect A conflict does not exist when [Depart- interests in business entities of these finan- ment of the Army] DA personnel hold shares cial holdings come from ownership by the of a widely held, diversified mutual fund or fund or investment company of stocks in regulated investment company. In accord- business entities. They are hereby exempted ance with the provisions of 18 U.S.C 208b(2), from the requirements of 18 U.S.C. 208(a), ac- such holdings are exempted as being too recording to 18 U.S.C. 208(B)(2), as too remote mote or inconsequential to affect the integ- or inconsequential to affect the integrity of rity of the services of Government personnel. the government officers’ or employees’ serv- Section 3. Department of the Navy Waiver in ices. Accordance With 18 U.S.C. 208(b) APPENDIX C TO PART 84—DOD HUMAN (b) Under 18 U.S.C. 208(b)(2), [Department GOALS of the Navy] DON personnel need not be disqualified from participating in matters in Department of Defense, Human Goals, The At- which they have the following financial in- tainment of These Goals Requires That We terests: Strive (1) Shares of widely held and diversified mutual, money market, trust, or similar To attract to the Department of Defense funds offered for sale by a financial institu- people with ability, dedication, and capacity tion or by a regulated investment company; for growth; (2) Deposits in and loans from banks or To provide opportunity for everyone, mili- other financial institutions, provided they tary and civilian, to rise to as high a level of are at customary and generally available responsibility as possible, dependent only on terms and conditions; and individual talent and diligence; (3) Federal, State, municipal, or local gov- To assure that equal opportunity and safe- ernment bonds, regardless of the value of ty programs are an integral part of readi- such interests. ness; (b) DON personnel who are members or of- To make military and civilian service in ficers of non-governmental associations or the Department of Defense a model of equal organizations must avoid activities on behalf opportunity for all regardless of race, color, of such groups that are incompatible with sex, religion, or national origin;

421 § 85.1 32 CFR Ch. I (7–1–97 Edition)

To provide equity in civilian employment support and influence individuals in for older persons and disabled individuals managing their own health through and to provide a safe environment that is ac- lifestyle decisions and selfcare. Oper- cessible to and usable by them; ationally, health promotion includes To hold those who do business with or receive assistance from the Department to full smoking prevention and cessation, compliance with its policies of equal oppor- physical fitness, nutrition, stress man- tunity and safety; agement, alcohol and drug abuse pre- To help each service member in leaving the vention, and early identification of hy- service to readjust to civilian life; pertension. To provide a safe and healthful work envi- Lifestyle. The aggregated habits and ronment, free from recognized occupational hazards for all personnel; and behaviors of individuals. To contribute to the improvement of our Military Personnel. Includes all U.S. society, including its disadvantaged mem- military personnel on active duty, U.S. bers, by greater utilization of our human and National Guard or Reserve personnel physical resources while maintaining full ef- on active duty, and Military Service fectiveness in the performance of our pri- Academy cadets and midshipmen. mary mission. Self-Care. Includes acceptance of responsibility for maintaining personal PART 85—HEALTH PROMOTION health, and decisions concerning medical care that are appropriate for the in- Sec. dividual to make. 85.1 Purpose. 85.2 Applicability and scope. Target Populations. Military person- 85.3 Definitions. nel, retirees, their families, and civil- 85.4 Policy. ian employees. 85.5 Responsibilities. 85.6 Procedures. § 85.4 Policy. AUTHORITY: 5 U.S.C. 301. It is DoD policy to: SOURCE: 53 FR 33123, Aug. 30, 1988, unless (a) Encourage military personnel, re- otherwise noted. tirees, their families and civilian employees to live healthy lives through § 85.1 Purpose. an integrated, coordinated and com- (a) This part establishes a health pro- prehensive health promotion program. motion policy within the Department (b) Foster an environment that en- of Defense to improve and maintain hances the development of healthful military readiness and the quality of lifestyles and high unit performance. life of DoD personnel and other bene- (c) Recognize the right of individuals ficiaries. working or visiting in DoD occupied (b) This part replaces 32 CFR part 203 buildings to an environment reason- and establishes policy on smoking in ably free of contaminants. DoD occupied buildings and facilities. (d) Disallow DoD Components’ participation with manufacturers or dis- § 85.2 Applicability and scope. tributors of alcohol or tobacco prod- (a) This part applies to the Office of ucts in promotional programs, activi- the Secretary of Defense (OSD), the ties, or contests aimed primarily at Military Departments, and the Defense DoD personnel. This does not prevent Agencies. accepting support from these manufac- (b) It is directed to all military per- turers or distributors for worthwhile sonnel and retirees, their families, and, programs benefiting military personnel where specified, to civilian employees. when no advertised cooperation between the Departmment of Defense and § 85.3 Definitions. the manufacturer or distributor di- Health Promotion. Any combination of rectly or indirectly identifying an alco- health education and related organiza- hol or tobacco product with the pro- tional, social, economic or health care gram is required. Neither does it pre- interventions designed to facilitate be- vent the participation of military per- havioral and environmental alterations sonnel in programs, activities, or con- that will improve or protect health. It tests approved by the manufacturers or includes those activities intended to distributors of such products when that

422 Office of the Secretary of Defense § 85.6 participation is incidental to general (3) Dietary regulation of DoD snack public participation. concessions, and vending machines. (4) Reduction of stress in work set- § 85.5 Responsibilities. ting. (a) The Assistant Secretary of Defense (5) Designate two representatives to (Health Affairs) (ASD(HA)) shall coordi- the Health Promotion Coordinating nate and monitor the DoD health pro- Committee. motion program in accordance with (c) The Assistant Secretary of Defense this part, executing this responsibility (Reserve Affairs) (OASD(RA)) shall: in cooperation with the Assistant Sec- (1) Coordinate and monitor relevant retary of Defense (Force Management aspects of the health promotion pro- and Personnel) and the Assistant Sec- gram as it pertains to National Guard retary of Defense (Reserve Affairs). The and Reserve Personnel. Office of the Assistant Secretary of De- (2) Designate a representative to the fense (Health Affairs) (ASD(HA)) shall: Health Promotion Coordinating Com- (1) Establish and chair the Health mittee. Promotion Coordinating Committee (d) The Secretaries of the Military De- comprised of representatives of the Of- partments shall: fice of the Assistant Secretary of De- (1) Develop a comprehensive health fense (Force Management and Person- promotion program plan for their re- nel) (OASD(FM&P)), Office of the As- spective Service(s). sistant Secretary of Defense (Acquisi- (2) Establish and operate an inte- tion and Logistics) (OASD(A&L)), the grated, coordinated and comprehensive Office of the Assistant Secretary of De- health promotion program as pre- fense (Reserve Affairs) (OASD(RA)), scribed by this Directive. each Military Service, and such other (3) Designate from their respective advisors as the OASD(HA) considers Service(s) a health promotion coordi- appropriate. nator who shall also serve as represent- (2) Facilitate exchanges of technical ative to the Health Promotion Coordi- information and problem solving with- nating Committee. in and among Military Services and (4) Evaluate the effectiveness of their Defense Agencies. respective health promotion pro- (3) Provide technical assistant, guid- gram(s). ance and consultation. (e) The Directors of Defense Agencies (4) Coordinate health data collection shall develop and implement health efforts to ensure standardization and promotion plans and programs for their facilitate joint studies across DoD civilian employees in accordance with components. this part. (5) Review dietary standards for DoD (f) The Assistant Secretary of Defense dining facilities as specified in DoD Di- (Comptroller) (ASD(C)) shall develop rective 3235.2 1 and implement a health program pro- (b) The Assistant Secretary of Defense motion for OSD civilian employees. (Force Management and Personnel) (ASD(FM&P)) shall, in collaboration § 85.6 Procedures. with the ASD(HA), coordinate and (a) Each Military Service shall estab- monitor relevant aspects of the health lish a health promotion program coor- promotion program. These include: dinator to serve as the focal point for (1) Use of tobacco products in DoD all health promotion program issues occupied facilities. and to integrate the activities of the (2) Operation of health promotion medical and personnel departments. and screening programs at the work- (b) A Health Promotion Coordinating site and in Professional Military Edu- Committee shall be established to en- cation, DoD Dependents Schools, and hance communication among the Mili- section 6 schools. tary Services, recommend joint policy and program actions, review program 1 Copies may be obtained, if needed, from implementation, and recommend meth- the U.S. Naval Publications and Forms Cen- odologies and procedures for program ter, Attn: Code 1062, 5801 Tabor Avenue, evaluation. The Committee shall be Philadelphia, PA 19120. chaired by the Assistant Secretary of

423 § 85.6 32 CFR Ch. I (7–1–97 Edition)

Defense (Health Affairs) (ASD(HA)) or ing material when entering a non- designee. Additional members shall in- smoking area. clude two representatives from the Of- (B) Nonsmoking areas shall be des- fice of the Assistant Secretary of De- ignated and posted in all eating facili- fense (Force Management and Person- ties in DoD occupied buildings. Smok- nel); one representative from the Office ing areas shall be permitted only if of the Assistant Secretary of Defense adequate space is available for non- (Reserve Affairs); one representative smoking patrons and ventilation is from the office of the Assistant Sec- adequate to provide them a healthy en- retary of Defense (Acquisition & Logis- vironment. tics); and the health promotion coordi- (C) Elevators shall be designated as nator from each Military Service. nonsmoking areas. (c) Each Component shall prepare a (D) Smoking shall be prohibited in plan for the implementation of a com- official buses and vans. prehensive health promotion program (E) Within the confines of medical that includes specific objectives treatment facilities, smoking shall be (planned accomplishments) with meas- restricted to private offices and spe- urable action steps. The plan shall ad- cially designated areas. Smoking by dress all of the program elements iden- patients shall be limited to specially tified in the definition of health pro- designated areas, and health care promotion for each group in the target viders shall not smoke in the presence populations. The plan shall consider of patients while performing their du- workload, systems support, and train- ties. Smoking is permitted in visitor ing needs of individuals charged with waiting areas only where space and responsibility at all organizational lev- ventilation capacities permit division els. into smoking and nonsmoking sec- (d) Health promotion plans and pro- tions. grams shall address smoking preven- (F) Smoking shall not be permitted tion and cessation, physical fitness, nu- in common work areas shared by smok- trition, stress management, alcohol ers and nonsmokers unless adequate and drug abuse, and early identifica- space is available for nonsmokers and tion of hypertension. ventilation is adequate to provide them (1) Smoking prevention and cessation a healthy environment. Where feasible, programs shall aim to create a social smoking preference should be consid- environment that supports abstinence ered when planning individual work and discourage use of tobacco products, stations so that smoking and non- create a healthy working environment, smoking areas may be established. and provide smokers with encourage- (G) When individual living quarters ment and professional assistance in are not available and two or more indi- quitting. In addition to these aims, viduals are assigned to one room, smoking prevention and cessation pro- smoking and nonsmoking preferences grams shall include the following ele- shall be considered in the assignment ments. of rooms. (i) Smoking shall be permitted in (H) Smoking by students attending buildings only to the extent that it DoD Dependents Schools or section 6 does not endanger the life or property, schools shall not be permitted on or risk impairing nonsmokers’ health. school grounds except as provided by (ii) The smoking of tobacco products policy regulations promulgated by the within DoD occupied space shall be Director, DoDDS. Faculty and staff controlled in accordance with the fol- shall smoke only in specifically des- lowing guidelines: ignated areas and shall not smoke in (A) Smoking shall be prohibited in the presence of students. auditoriums, conference rooms and (iii) Installations shall assess the classrooms. No Smoking signs shall be current resources, referral mecha- prominently displayed, and ashtrays nisms, and need for additional smoking shall not be permitted. Receptacles cessation programs. Occupational may be placed at entrances so that health clinics shall consider the fea- visitors may dispose of lighted smok- sibility of smoking cessation programs

424 Office of the Secretary of Defense § 85.6 for civilian employees or, at a mini- (ii) Commanders and managers mum, be able to refer employees to should assess the availability of fitness such programs. While smoking ces- programs at or near work sites and sation should be encouraged, care shall should consider integrating fitness be taken to avoid coercion or pressure regimens into normal work routines on employees to enter smoking ces- for military personnel as operational sation programs against their will. commitments allow. Smoking prevention programs shall be (iii) The chain of command should made available in DoD Dependents encourage and support community ac- Schools and section 6 schools. tivities that develop and promote fit- (iv) Information on the health con- ness among all target populations. Ac- sequences of smoking shall be incorporated with the information on alco- tivities should be designed to encour- hol and drug abuse provided to mili- age the active participation of many tary personnel at initial entry and at people rather than competition among permanent change of station as speci- a highly motivated few. fied in 32 CFR part 62a. At initial (3) Nutrition programs shall aim to entry, nonsmokers shall be encouraged encourage and assist all target popu- to refrain from smoking. Smokers lations to establish and maintain die- shall be encouraged to quit and be of- tary habits contributing to good fered assistance in quitting. health, disease prevention, and weight (v) As part of routine physical and control. Weight control involves both dental examinations and at other ap- nutrition and exercise, and is addressed propriate times, health care providers in part in DoD Directive 1308.1. Nutri- should be encouraged to inquire about tion programs include efforts not only the patient’s tobacco use, including use to help individuals develop appropriate of smokeless tobacco products; to ad- dietary habits, but also to modify the vise him or her of the risks associated environment so that it encourages and with use, the health benefits of absti- supports appropriate habits. Addition- nence, and of where to obtain help to ally, nutrition programs shall include quit. the following elements. (vi) Appropriate DoD health care providers should advise all pregnant smok- (i) Nutritional advice and assistance ers of the risks to the fetus. shall be provided by appropriate DoD (vii) The Military Services shall con- health care professionals to military duct public education programs appro- personnel, retirees, and family mem- priate to various target audiences on bers. the negative health consequences of (ii) In military and civilian dining fa- smoking. cilities, where feasible, calorie infor- (2) Physical fitness programs shall mation and meals with reduced aim to encourage and assist all target amounts of fat, salt, and calories shall populations to establish and maintain be made readily available. the physical stamina and cardio- (iii) Snack concessions and vending respiratory endurance necessary for machines, when feasible, shall offer nu- better health and a more productive tritious alternatives, such as fresh lifestyle. In addition to the provisions fruit, fruit juices, and whole grain of DoD Directive 1308.1 2 and Secretary products. of Defense Memorandum physical fit- (iv) Public information campaigns ness programs shall include the follow- shall be conducted by the Military ing elements. Services to alert all target populations (i) Health professionals shall consider exercise programs conducive to im- about the relationship between diet proved health, and encourage appro- and risk of chronic diseases. priate use by patients. For military (4) Stress management programs personnel, recommendations shall ac- shall aim to reduce environmental cord with military readiness require- stressors and help target populations ments. cope with stress. Additionally, stress management programs shall include 2 See footnote 1 to § 85.5(a)(5). the following elements.

425 § 86.1 32 CFR Ch. I (7–1–97 Edition)

(i) Commanders should develop lead- in the Children’s Preventive Dentistry ership practices, work policies and pro- Program, at the time of their original cedures, and physical settings that pro- request for care. Patients with abnor- mote productivity and health for mili- mal screening results shall receive ap- tary personnel and civilian employees. propriate medical referrals. (ii) Health and fitness professionals (ii) Each DoD medical facility should are encouraged to advise target groups periodically offer mass hypertension on scientifically supported stress man- screening to encourage beneficiaries to agement techniques. monitor their blood pressure regularly. (iii) The topic of stress management (iii) Occupational health clinics shall should be considered for integration make hypertension screening readily into the curricula at appropriate Pro- available to civilian employees, and fessional Military Education programs shall encourage employees to use this and in the DoD Dependents Schools service. and section 6 schools to familiarize stu- (iv) Public information campaigns dents with scientifically supported emphasizing the dangers of hyper- concepts of stress management for day- tension and the importance of periodic to-day problems, life transitions, and hypertension screening and dietary life crises. regulation shall be conducted. (5) Alcohol and drug abuse prevention programs shall aim to prevent the mis- PART 86—CRIMINAL HISTORY use of alcohol and other drugs, elimi- BACKGROUND CHECKS ON IN- nate the illegal use of such substances, DIVIDUALS IN CHILD CARE SERV- and provide counseling or rehabilita- ICES tion to abusers who desire assistance in accordance with the provisions of 32 Sec. CFR parts 62a and 62 and DoD Instruc- 86.1 Purpose. tion 1010.6 3 Additionally, alcohol and 86.2 Applicability. drug abuse prevention programs shall 86.3 Definitions. include the following elements. 86.4 Policy. (i) Appropriate DoD health care pro- 86.5 Responsibilities. fessionals shall advise all pregnant pa- 86.6 Procedures. Appendix A to Part 86—CRIMINAL HISTORY tients and patients contemplating BACKGROUND CHECK PROCEDURES pregnancy about the risks associated Appendix B to Part 86—CRITERIA FOR CRIMI- with the use of alcohol and other drugs NAL HISTORY BACKGROUND CHECK DISQUALI- during pregnancy. FICATIONS (ii) The Military Services shall con- Appendix C to Part 86—STATE INFORMATION duct public education programs appro- AUTHORITY: 42 U.S.C. 13041. priate to various target audiences. Pro- SOURCE: 58 FR 52010, Oct. 6, 1993, unless grams should include such topics as al- otherwise noted. cohol and drug use and pregnancy, driving while intoxicated, and adoles- § 86.1 Purpose. cent alcohol and drug abuse. This part: (a) Implements Public Law (6) Hypertension prevention pro- 101–647, section 231 and Public Law 102– grams shall aim to identify hyper- 190, section 1094. tension early, provide information re- (b) Requires procedures for existing garding control and lifestyle factors, and newly hired individuals and in- and provide treatment referral where cludes a review of personnel and secu- indicated. Early identification of hy- rity records to include a Federal Bu- pertension programs shall include the reau of Investigation (FBI) fingerprint following elements. check and State Criminal History Re- (i) Hypertension screening shall be positories (SCHR) checks of residences provided as part of all medical exami- listed on employment or certification nations and the annual dental exam- applications. ination for active duty service mem- (c) Establishes policy, assigns respon- bers. Screening shall also be provided sibilities, and prescribes procedures for to other beneficiaries, excluding those criminal history background checks for all existing and newly hired individ- 3 See footnote 1 to § 85.5(a)(5). uals involved in the provision of child

426 Office of the Secretary of Defense § 86.3 care services as Federal employees, § 86.3 Definitions. contractors, or in Federal facilities to Terms used in this part are defined as children under the age of 18. The follows. checks are required of all individuals (a) Appropriated Fund (APF) Employ- in the Department of Defense involved ees. Personnel hired by DoD Compo- in providing child care services defined nents with appropriated funds as de- in Public Law 101–647, and for policy fined in the FPM, Chapter 731. This in- reasons, those categories of individuals cludes temporary employees, 18 years not expressly governed by the statute. old or older, who work with children. (d) Allows the Department to provi- (b) Care provider. As defined in Public sionally hire such individuals before Law 101–647, section 231 and Public Law the completion of a background check. 102–190, section 1094. Providers included However, at all times while children are current and prospective individuals are in the care of that individual, the hired with APF and nonappropriated child care provider must be within funds (NAF) for education, treatment sight and under the supervision of a or healthcare, child care or youth ac- staff person whose background check tivities, individuals employed under has been successfully completed. contract who work with children and Healthcare personnel shall comply those who are certified for care. Care with guidance provided in the Memo- providers are individuals working with- randum from the Assistant Secretary in programs that include alphabeti- of Defense for Health Affairs cally: Child Development Programs, (ASD(HA)) 1, April 20, 1992. DoD Dependents Schools, DoD-Oper- ated or -Sponsored Activities, DoD Sec- (e) Includes all individuals providing tion 6 School Arrangements, Foster child care services to children in ac- Care, Private Organizations on DoD In- cordance with 32 CFR part 310, Federal stallations, and Youth Programs. Personnel Manual (FPM) 2, 32 CFR part Background checks are required for all 3 154, DoD Directive 6400.1 , DoD Instruc- civilian and military providers (except 4 5 tion 6060.2 , DoD Instruction 6400.2 , military health care providers) in- DoD Directive 1400.13 6, 32 CFR part 68, volved in child care services who have DoD Directive 6025.11 7, DoD Directive regular contact with children. 1015.1 8, and 32 CFR part 212. (c) Child. An unmarried person, whether natural child, adopted child, § 86.2 Applicability. foster child, stepchild, or ward, who is This part applies to the Office of the a family member of a military member Secretary of Defense, the Military De- or DoD civilian or their spouse, and partments, the Chairman of the Joint who is under the age of 18 years; or is Chiefs of Staff and the Joint Staff, the incapable of self support because of a Unified and Specified Commands, the mental or physical incapacity and for Inspector General of the Department of whom treatment is authorized in a Defense, the Defense Agencies, and the medical facility of the Military Serv- DoD Field Activities (hereafter re- ices, ad defined in DoD Directive 6400.1. ferred to collectively as ‘‘the DoD (d) Child abuse and/or neglect. The Components’’). physical injury, sexual maltreatment, emotional maltreatment, deprivation of necessities, or other maltreatment 1 Copies may be obtained from OASD(HA) Room 3E346, The Pentagon, Washington, DC of a child. The term encompasses both 220301–1200. acts and omissions on the part of a re- 2 Copies may be obtained from a Federal sponsible person, as defined in DoD Di- Depositary Library, or a Federal Agency rective 6400.1. Personnel Office. (e) Child care services. DoD personnel 3 Copies may be obtained from the National and contractors who are involved in Technical Information Service, 5285 Port any of the following: ‘‘Child protective Royal, Springfield, VA 22161. services (including the investigation of 4 See footnote 3 to § 86.1(e). 5 See footnote 3 to § 86.1(e). child abuse and neglect reports), social 6 See footnote 3 to § 86.1(e). services, health and mental health 7 See footnote 3 to § 86.1(e). care, child (day) care, education 8 See footnote 3 to § 86.1(e). (whether or not directly involved in

427 § 86.3 32 CFR Ch. I (7–1–97 Edition) teaching), foster care, residential care, and denials concerning military, civil- recreational or rehabilitative pro- ian, and contract personnel. grams, and detention, correctional, or (k) DoD Dependents Schools (DoDDS). treatment services,’’ as defined in Pub- Schools operated by the Department of lic Law 101–647, section 231. Defense for minor dependents of mili- (f) Child Development Center (CDC). An tary members or DoD civilians as- installation facility or part of a facil- signed to duty in foreign countries, as ity used for child care operated under defined in DoD Directive 1400.13. the oversight of Component’s Child De- (l) DoD-operated or -sponsored activity. velopment Programs (CDPs) and as de- A contracted entity authorized by ap- fined in DoD Instruction 6060.2. propriate DoD officials to perform (g) Child Development Programs child care, education, treatment, or su- (CDPs). Programs for dependents of pervisory functions on DoD-controlled DoD personnel provided in CDCs, fam- property. Examples include but are not ily child care (FCC) homes, and alter- limited to CDPs, FCC Programs, Medi- native child care options. The care pro- cal Treatment Facilities, DoDDS, DoD vided is on a full-day, part-day, or Section 6 Schools, and Youth Pro- hourly basis. Care is designed to programs. tect the health and safety of children (m) DoD Section 6 Schools. The edu- and promote their physical, social, cational arrangements made for the emotional, and intellectual develop- provision of education to eligible de- ment, as defined in DoD Instruction pendent children by the Department of 6060.2. Defense under Public Law 81–874, section 6, as defined in 32 CFR part 68, in (h) Child sexual abuse. Employment, the Continental United States, Alaska, use, persuasion, inducement, entice- Hawaii, Puerto Rico, Wake Island, ment, or coercion of any child to en- Guam, American Samoa, the Northern gage in, or having a child assist any Mariana Islands, and the Virgin Is- other person to engage in, any sexually lands. explicit conduct (or any simulation of (n) Family Child Care (FCC). Quarters- such conduct) or the rape, molestation, based child care provided in Govern- prostitution, or any other such form of ment-owned or -leased quarters, in sexual exploitation of children, or in- which care is provided on a regular cest with children. All sexual activity basis for compensation, usually for between an offender and a child, when more than 10 hours a week per child, to the offender is in a position of power one or more (up to six) children, in- over the child, is considered sexual cluding the provider’s own children maltreatment, as defined in DoD In- under 8 years of age, as defined in DoD struction 6400.2. Instruction 6060.2 (i) Criminal history background check. (o) Foreign National Employees Over- An investigation based on fingerprints seas. Non-U.S. citizens hired by the De- and other identifying information ob- partment of Defense for employment tained by a law enforcement officer on an overseas installation. conducted through the Federal Bureau (p) Foster care. A voluntary or court- of Investigation-Identification Division mandated program that provides 24- (FBI–ID) and SCHR of all States that hour care and supportive services in a an employee or prospective employee family home or group facility for chil- list as current and former residences dren who cannot be properly cared for on an employment application initi- by their own family. ated through the personnel programs of (q) Government-contracted care provid- the applicable Federal Agencies, as deers. An individual or a group of individ- fined in Public Law 101–647 or through uals hired under a Government con- the personnel program of a given gov- tract to provide instruction, child care ernment contractor. services, healthcare, or youth services. (j) Defense Clearance and Investiga- FCC providers are not considered con- tions Index (DCII). The central DoD tracted Government employees for this record of investigative files and adju- part. dicative actions such as clearances and (r) Healthcare personnel. Personnel in- access determinations, revocations, volved in the delivery of healthcare to

428 Office of the Secretary of Defense § 86.4 children under the age of 18 on a fre- parent, foster parent, guardian, or fam- quent and regular basis. See ASD(HA) ily member. memorandum dated April 20, 1992. (y) Regular contact. Responsible for a (1) Medical and dental care staff. Phy- child or with access to children on a sicians, dentists, nurse practitioners, frequent basis as defined by the Compo- clinical social workers, clinical psy- nent. chologists, physicians’ assistants, (z) Specified volunteer position. A posi- physical therapists, and speech pation, designated by the DoD Compo- thologists. nent Head or designee, such as installa- (2) Clinical support staff. Clinical pro- tion commander, requiring an installa- viders not granted defined clinical tion record check because of the nature privileges to include residents, reg- of the volunteer work in child care istered nurses, licensed practical services. nurses, nursing assistants, play thera- (aa) State Criminal History Repository pists, and technicians, and defined in (SCHR). The State’s central record of DoD Directive 6025.11. investigative files. State information, (s) Installation Records Check (IRC). including addresses, phone numbers, An investigation conducted through costs and remarks, is listed in appendix the records of all installations of an in- C to this part. dividual’s identified residences for the (bb) Supervision. Refers to having preceding 2 years before the date of the temporary responsibility for children application. This record check shall in- in child care services, and temporary clude, at a minimum, police (base and/ or permanent authority to exercise di- or military police, security office, or rection and control by an individual criminal investigators or local law en- over an individual whose required forcement) local files check, Drug and background checks have been initiated Alcohol Program, Family Housing, but not completed. Medical Treatment Facility for Family (cc) Temporary employees. This cat- Advocacy Program to include Service egory includes nonstatus appointments Central Registry records and mental to a competitive service position for a health records, and any other record specified period, not to exceed a year. checks as appropriate, to the extent This includes summer hires, student permitted by law. interns, and NAFI flexible category (t) National Agency Check (NAC). As employees. defined in 32 CFR part 154. (dd) Volunteer activities. Activities (u) National Agency Check and Inquir- where individuals offer assistance on ies (NACI). As defined in the FPM, an unpaid basis in child and youth pro- Chapters 731 and 736. grams or other activities on DoD in- (v) Nonappropriated Fund Instrumen- stallations. Examples include sports talities (NAFI) Employees. Personnel programs, religious programs, scouting hired by the DoD Components, com- programs, and preschools sponsored by pensated from NAFI funds as defined in private parent cooperatives or other DoD Directive 1015.1. This includes associations conducted on the installa- temporary employees, 18 years old or tion. older, who work with children. (w) Private Organizations on DoD In- (ee) Volunteers. Individuals who offer stallations. A nongovernmental entity program assistance on an unpaid basis. authorized by the Department of De- (ff) Youth programs. DoD-sponsored fense to perform child care services, activities, events, services, opportuni- education, or supervisory functions ties, information, and individual assist- with children on DoD-controlled prop- ance responsive to the recreational, de- erty, as defined in 32 CFR part 212. Ex- velopmental, social, psychological, and amples include religious groups and as- cultural needs of eligible children and sociations, such as scouts. youth. Includes before and after school (x) Respite care. Provides short-term programs as well as holiday and sum- child care and supportive services in a mer camps. family home or group facility for children to relieve stress, prevent child § 86.4 Policy. abuse, and promote family unity for a It is Department of Defense policy to:

429 § 86.5 32 CFR Ch. I (7–1–97 Edition)

(a) Establish a standardized and com- this part, in accordance with appendix prehensive process for screening appli- A to this part. cants for positions involving child care (2) Provide oversight of process and services on DoD installations and in procedures to conduct criminal history DoD activities. background checks to include assign- (b) Provide fair, impartial, and equi- ment of proponency. table treatment before an individual (3) Provide technical support and re- may be deemed suitable to serve as an sources as required. employee, a certified care provider, a (4) Coordinate participation of spe- specified volunteer position, or as an cific organizations within the DoD individual employed under contract in Component involved in the conduct of activities covered by this part, 32 CFR the checks. part 310, Federal Personnel Manual (5) Ensure that applicants and em- (FPM), 32 CFR part 154, DoD Directive ployees are made aware of their rights 6400.1, DoD Instruction 6060.2, DoD In- under 32 CFR part 310 including the struction 6400.2, DoD Directive 1400.13, right to challenge accuracy of records. 32 CFR part 68, DoD Directive 6025.11, (6) Maintain the records of all indi- DoD Directive 1015.1, and 32 CFR part viduals hired, certified, or employed 212 by conducting a thorough review of under contract for positions that in- all appropriate records as described in volve child care services for 2 years fol- this part. lowing termination of their service. (c) Protect children by denying or re- (7) Establish a mechanism to evalu- moving from employment, contract, or ate all adverse information resulting volunteer status any applicant or cur- from criminal history background rent employee who is determined un- checks, using the criteria in appendix suitable to provide child care services B to this part. Final suitability deci- because derogatory information is con- sions are made by the DoD Component tained in a suitability investigation. Head or designee. (d) Ensure than an individual is advised of proposed disciplinary action, § 86.6 Procedures. decertification, or refusal to hire by The records of all existing employees the hiring authority or designee if dis- and applicants for positions in child qualifying derogatory information is care services are reviewed by the Com- contained in a suitability investiga- ponent designee according to the proce- tion. The individual is given the oppor- dures prescribed in appendix A to this tunity to challenge the accuracy and part. completeness of reported information. (e) Foster cooperation among the APPENDIX A TO PART 86—CRIMINAL HIS- DoD Components, other Federal Agen- TORY BACKGROUND CHECK PROCE- cies, State and county agencies, and DURES other civilian authorities in conduct- This appendix establishes the procedures ing criminal history background for conducting criminal history background checks. checks on existing and newly hired individuals required by Public Law 101–647, section § 86.5 Responsibilities. 231 and Public Law 102–190, section 1094. (a) The Assistant Secretary of Defense Background checks are required for all civil- for Personnel and Readiness shall: (1) ian providers involved in child care services who have regular contact with children. The Develop policy for conducting criminal categories of providers include current and history background checks on individ- prospective individuals hired with APF and uals seeking positions involving child NAFI funds for education, treatment or care services. healthcare, child care or youth activities, (2) Monitor compliance with this and individuals employed under contract in- part. volved in the provision of child care services. (3) Coordinate oversight of criminal In addition to the mandates of Public Law history background checks as specified 102–190, section 1094, the Department of De- fense requires that military members (except under this part. healthcare personnel), foster or respite care (b) The Heads of the DoD Components providers, FCC providers and family mem- shall: (1) Develop procedures to ensure bers, and specified volunteers shall have compliance with the requirements of checks specified in this part.

430 Office of the Secretary of Defense Pt. 86, App. A

A. Conducting Checks B. Applicants

Component designees shall notify existing 1. Appropriated Fund (APF) Applicants and newly hired individuals and contractors of the requirement for a review of personnel a. Except as otherwise provided in this sub- and security records to include an FBI fin- section, the DoD Components shall process gerprint check and SCHR checks of resi- APF applicants using currently established dences listed on employment and security procedures for completing background applications. checks described in 32 CFR part 310. APF applicants must complete a SF–171, ‘‘Applica- 1. Fingerprint Check. Law enforcement per- tion for Federal Employment,’’ and attach sonnel shall forward completed forms an SF–87, ‘‘Fingerprint Chart,’’ completed by through channels to the Office of Personnel a law enforcement officer; and an SF–85P, Management (OPM) or Defense Investigative ‘‘Questionnaire for Public Trust Positions’’ Service (DIS) for processing of FBI finger- (Annotate Block ‘‘B’’ with code 03), for con- print forms. duct of a NACI. The package shall be for- 2. State Criminal History Repository (SCHR) warded to the OPM. Check. DoD Installation-level personnel of- b. The DoD Components shall assign re- fices, in collaboration with law enforcement sponsibility for conducting the criminal his- and security personnel, shall process State tory background checks through the SCHR criminal history background checks for em- to personnel offices working with law en- ployment and shall ordinarily communicate forcement or investigative agencies. They in writing with each State identified in ap- shall conduct checks in all States that an pendix B to part 86, providing full identifying employee or prospective employee lists as information on each applicant and request current and former residences in an employ- confirmation that the individual has not ment or security application. It is deemed been convicted in that State of a sex crime, unnecessary to conduct checks before 18 an offense involving a child victim, a drug years of age because juvenile records are un- felony, or a violent crime. The DoD Compo- available. If no response is received from the nent Heads may establish alternate proce- State(s) within 60 days, determinations dures for conducting SCHR checks; e.g., a based upon the FBI report may be made. Re- computerized, written, or telephonic check. sponses received after this determination has The DoD Components are not required to been made must be provided to the determin- wait longer than 60 days from the date of the ing authority. request for a response from the SCHR per- c. Under Public Law 102–190, section 1094, sonnel before taking action on a particular the DoD Components may employ an individual pending completion of successful back- application. Authorities will depend on FBI ground checks described in Public Law 101– fingerprint check validation if States do not 647, section 231. If an individual is so em- respond. ployed, at all times while children are in the 3. Installation Record Checks (IRC). Consists care of that individual, he or she must be of a local record check on an individual for within sight and under the supervision of an a minimum of 2 years before the date of the individual whose background checks have application. This record check shall include, been completed, with no derogatory reports. at a minimum, police (base and/or military d. Once it is clear that no derogatory infor- police, security office, criminal investiga- mation exists, line of sight supervision is tors, or local law enforcement) local files terminated by the designee. If a derogatory checks, Drug and Alcohol Program, Family report exists, Component personnel proce- Housing, Medical Treatment Facility for dures shall prescribe appropriate action con- Family Advocacy Program Service Central sistent with the criteria contained in this Registry records and mental health records, part. and any other record checks as appropriate to the extent permitted by law. A Service 2. Nonappropriated Fund Instrumentalities DCII may be conducted. The IRC shall be (NAFI) Applicants conducted by DoD Component personnel at a. Except as otherwise provided in this sub- the installation level. An IRC will be com- section, the DoD Components shall process pleted on individuals with a DoD affiliation NAFI applicants following established proce- such as living or working on an installation dures for completing background checks. or is active duty member or family member. NAFI applicants must complete a DD Form Individuals without DoD affiliation have no 398–2 ‘‘Department of Defense National Agen- installation system of records to check and cy Questionnaire,’’ with reason for request an IRC is not completed. Upon favorable identified as OTHER and annotated as completion of the IRC, an individual may be CHILD CARE, and FD Form 258, ‘‘FBI Appli- selected and provide child care services cant Fingerprint Card.’’ Fingerprints shall under line of sight supervision until the re- be taken by the local law enforcement orga- quired background checks are completed. nization personnel and together with the DD

431 Pt. 86, App. A 32 CFR Ch. I (7–1–97 Edition)

Form 398–2 shall be forwarded to: Defense In- and d. of this appendix. It should be noted vestigative Service, Personnel Investigations that these quality assurance programs are Center, P.O. Box 1083, Baltimore, MD 21203– not sufficient in and of themselves under 1083. Public Law 101–647, section 231. Therefore, b. The DoD Components shall follow the the required FBI fingerprint check and the procedures in the FPM, Chapter 731 and 736 SCHR check must be completed as expedi- and in paragraph B.1.b.,c., and d. of this ap- tiously as possible. pendix to obtain fingerprints for the FBI, conduct criminal history background checks C. Current Employees through the SCHR, and maintain employment of individuals pending the successful All currently employed individuals covered completion of the background checks. by this part shall have the FBI fingerprint and criminal history background check as 3. Foreign National Employees Overseas described in Public Law 101–647, section 231. If the results of such checks, to include the Foreigh national employees overseas, SCHR, cannot be confirmed through an ex- while not expressly included within the law, amination of available local records, action are subject to the following record checks or shall be initiated in accordance with para- those equivalent in scope to checks con- graph B.1. of this appendix for APF employ- ducted on U.S. citizens: ees and paragraph B.2. of this appendix for a. Host-government law enforcement and NAFI employees, and with paragraph D. of security agency checks at the city, State this appendix for individuals employed under (province), and national level, whenever per- contract. The SCHR checks are conducted in missible by the laws of the host government. all cases in accordance with paragraph A.2. b. Defense Central Investigative Index of this appendix. For the purposes of this (DCII). part, no IRC is required for individuals em- c. FBI checks (when information exists re- ployed before June 1991. garding residence by the individual in the United States for 1 year or more since age D. Government Contract Employees 18). d. When permissible by the laws of the host 1. Sponsoring activities are responsible for government, host-government checks are re- ensuring that the requirements in this part quested directly by the employing Service or are included in the statement of work for all agency. As an alternative, the DoD Compo- child care programs to be contracted. The nents may request that overseas Military contracting officer is responsible for per- Service investigative elements obtain appro- forming any action necessary to verify that priate host-government checks. Where host- services provided by the contractor conform nations’ arrangements preclude comparable to contract quality requirements. Compo- criminal history checks, foreign nationals nent designees for requiring activities shall will not be eligible for employment in child ensure that the statement of work, at a min- care services. imum: a. States that the contractor must ensure 4. Temporary Employees its employees have proper criminal history This category includes summer hires, stu- background checks as outlined in this part. dent interns, and NAFI flexible category em- b. States that actual checks are performed ployees. Background checks for these indi- by the Government. viduals are processed according to funding c. Includes procedures that the contractor source; i.e., for APF employees (to OPM) or must follow to obtain checks for its employ- NAFI employees (to DIS). Installation des- ees; for example, identify the office where ignated points of contact shall notify appli- employees report for processing, identify cants of report disposition. proper forms to be completed, etc. Also, identify the DoD Component for billing pur- 5. Healthcare Personnel poses, and identify the appropriate security This category includes civilian personnel point of contact or installation commander involved in the delivery of healthcare. With- as the authorized recipient of background in the context of such medical care, line of check results. sight supervision must be viewed through d. States that employees may be permitted the prism of existing medical quality assur- to work before completion of background ance, clinical privileging, and licensure di- checks, provided the employee is within rectives, which require pre-employment sight of an individual who has successfully screens, enhanced surveillance of new em- completed a background check. ployees, and ongoing monitoring of the per- e. States that employees have the right to formance of all healthcare providers. These obtain a copy of the background check re- programs are inherent to both quality medi- port, whom they should contact for the copy cal care and patient safety and are adequate and whom to contact for procedures to chal- and equivalent mechanisms for the sight and lenge the accuracy and completeness of the supervision requirements in paragraph B.1.c. information in the report.

432 Office of the Secretary of Defense Pt. 86, App. A

f. Requires that contractor employees who working in specified volunteer positions will have previously received a background check have an IRC check because of the nature of must provide proof of the check or obtain a their work in child care services. The oppor- new one. tunity for contact may be extensive, fre- 2. Requirements for child care services quent, or over a period of time. They include, must be submitted to the contracting officer but are not limited to, positions involving sufficiently in advance of the required per- extensive interaction alone, extended travel, formance start date to provide time for ob- and/or overnight activities with children. An taining background checks. Sponsoring ac- IRC is required for volunteers who are activities’ designees shall coordinate with the tive-duty, a family member, or a DoD civil- contracting officer as soon as possible after a ian overseas. A volunteer is allowed to work requirement for child care services becomes upon completion of a favorable IRC. Back- known. ground checks are not required for volun- 3. Procedures for obtaining responses for teers whose services will be of shorter dura- background checks are the same as those for tion than is required to perform the back- NAFI employees and response to derogatory ground checks and who are under line of information will occur through the appro- sight supervision by an individual who has priate designee and contractor. An IRC will successfully completed a background check. be performed if the individual is a military The Components are required to provide ad- member or family member, or has worked or ditional implementing guidance. lived on a military installation within 5 years. F. Employment Application Requirement E. Other Providers Public Law 101–647, section 231 requires that each application for employment shall Criminal history background checks with include a question asking whether the indi- the FBI and the States are not required. Du- vidual has ever been arrested for or charged plication of previous background checks are with a crime involving a child, and, if so, re- not required for personnel where official quires a description of the disposition of the records demonstrate that an adequate check arrest or charge. The forms identified in has already been conducted. This category paragraphs B.1.a. and B.2.a. of this appendix includes the following: are signed by the applicant under penalty of 1. Military Members. These are active duty perjury, with the applicable Federal punish- individuals (other than healthcare person- ment for perjury stated on the respective nel) who seek to provide child care services forms. as part of a normal duty assignment or are involved during off-duty hours. For these 1. An applicant’s signature indicates an un- members an IRC and a current security derstanding of the employer’s obligation to clearance meet the requirements of this require a record check as a condition of em- part. In the absence of a current security ployment. Information on background clearance, a name check of the DCII must be checks shall be maintained in accordance conducted. When military members are em- with applicable Component implementing ployed in an APF or a NAFI position they regulations. will abide by background check require- 2. Payment for the conduct of any criminal ments listed in paragraphs B.1. and B.2. of history background check is the responsibil- this appendix. ity of the requesting Service or agency. 2. Foster and Respite Care Providers and 3. The results of the background check are Family Members. These are individuals who forwarded to the Component designee at the seek to provide foster care or respite child sending installation for appropriate action. care within Government-owned or -leased A derogatory report would include, but not quarters. The care provider, all other adults, be limited to, the following applicable and each child, age 12 and older, residing crimes: Any charge or conviction for a sex within the applicant’s household must re- crime, an offense involving a child victim, a ceive an IRC. In addition, the Component substance abuse felony, or a violent crime. designee must also obtain a name check of 4. The hiring authority or designee is re- the DCII on all adults. sponsible for notifying the individual of a de- 3. FCC Providers and Family Members. These rogatory report. The individual may obtain a are individuals who seek licensing to provide copy of the criminal history report and has child care within government-owned or the right to challenge the accuracy and com- -leased quarters. The care provider, all other pleteness of any information contained in adults, and each child, age 12 and older, re- the report through the Privacy Program de- siding within the applicant’s household re- scribed in 32 CFR part 310. The individual ceive an IRC. In addition, the Component may provide information concerning positive designee must obtain a name check of the mitigating factors for any adverse informa- DCII on all adults. tion presented. 4. Specified Volunteers. Installation com- 5. Employees whose criminal history back- manders shall designate those positions that ground checks result in nonselection for em- are determined to be ‘‘specified.’’ Individuals ployment or service shall be informed by the

433 Pt. 86, App. B 32 CFR Ch. I (7–1–97 Edition)

Component designee of the right to an ad- tions on DoD installations and include, ministrative appeal under 32 CFR part 310. but are not limited to: The individual may appeal with a specific re- 1. Child Development Programs. quest such as amendments to the records or a. Child development centers, part-day request to file statement disagreeing with preschools, and enrichment programs. information in the record. If the employee’s b. Family child care. request for record information is refused, the c. Contracted Services, whether personal individual is informed of his or her right to or non-personal services. an administrative appeal. As appropriate, 2. Youth Programs. Component designees shall inform individ- 3. Dependents Schools operated by the De- uals of other avenues available to resolve partment of Defense. matters of concern such as an administrative 4. Medical treatment facilities. or negotiated grievance procedures. If the 5. Other contracted services. employee remains dissatisfied, he or she may 6. Private organizations on DoD installa- seek a review. The Department of Defense tions. recognizes the privacy interests and rights of 7. Volunteer activities. all applicants and employees, and its own responsibility in ensuring a safe and secure en- J. Background Check Matrix vironment for children within DoD activities or private organizations on DoD installa- This identifies the requirements of this tions. part for background checks by category of personnel. These checks are initiated G. Record Re-Verification through the personnel offices in collaboration with law enforcement and security per- This procedure consists of an IRC and a sonnel. (Reminder: An IRC may only be com- DCII name check and is required by the Com- pleted on an individual who is a military ponent designee at a minimum every 5 years member or family member, or who lives or for all employees providing child care serv- works on a military installation.) ices and covers the time period since the 1. Appropriated Fund (APF) Employees. completion of the last background check. FBI, SCHR, and IRC. (SF–171, SF–87, and SF– NAFI employees who change duty stations 85P). will complete a new investigation when con- 2. Non-appropriated Fund Instrumental- sidered for employment. A new investigation ities (NAFI) Employees. FBI, SCHR, and is required by the Department of Defense if IRC. (DD Form 398–2 and FD Form 258). a break in service results in a time-lapse of 3. Foreign National Employees Overseas. more than 2 years. FCC, foster care and res- IRC and local government check. pite care providers, and their family mem- 4. Temporary Employees. FBI, SCHR, and bers will complete an IRC annually. IRC. 5. Current Employees. FBI and SCHR. H. Supervision 6. Government Contract Employees. FBI, Refers to temporary responsibility for chil- SCHR, and IRC. dren in child care services, and relates to 7. Other Providers. oversight for temporary or permanent au- a. Military Members. Military members thority to exercise direction and control by will have an IRC and, if no current security an individual over an individual whose re- clearance exists, a name check of the DCII. quired background checks have been initi- Checks are not required for military ated but not completed. Use of video equip- healthcare personnel. ment is acceptable provided it is monitored b. Foster and Respite Care Providers and by an individual who has successfully com- Family Members (age 12 and older). IRC and pleted a background check. Supervision pro- Service DCII (for adults). cedures pending completion of background c. Family Child Care Providers and Family checks for healthcare personnel suggest that Members (age 12 and older). IRC and Service the Surgeons General shall require close DCII (for adults). clinical supervision and full compliance with d. Specified Volunteers. IRC. existing DoD Directives, Instructions, and other guidance (issued by the Department of APPENDIX B TO PART 86—CRITERIA FOR Defense and the Military Department con- CRIMINAL HISTORY BACKGROUND cerned) on quality assurance, risk manage- CHECK DISQUALIFICATION ment, licensure, employee orientation, and credentials certification. These policies rely The ultimate decision to determine how to on process and judgment, and meet the in- use information obtained from the criminal tent of the ‘‘direct sight supervision’’ provi- history background checks in selection for sion, affording local commanders a flexible positions involving the care, treatment, su- and reasonable alternative. pervision, or education of children must in- I. Programs. Requirements cover all DoD-op- corporate a common sense decision based erated activities and private organiza- upon all known facts. Adverse information is

434 Office of the Secretary of Defense Pt. 86, App. C evaluated by the DoD Component Head or 2. The nature and seriousness of the con- designee who is qualified at the appropriate duct. level of command in interpreting criminal 3. The recentness of the conduct. history background checks. All information 4. The age of the individual at the time of of record both favorable and unfavorable will the conduct. be assessed in terms of its relevance, recent- 5. The circumstances surrounding the con- ness, and seriousness. Likewise, positive duct. mitigating factors should be considered. 6. Contributing social or environmental Final suitability decisions shall be made by conditions. that commander or designee. Criteria that 7. The absence or presence of rehabilitation will result in disqualification of an applicant or efforts toward rehabilitation. require careful screening of the data and in- 8. The nexus of the arrests in regard to the clude, but are not limited to, the following: job to be performed.

A. Mandatory Disqualifying Criteria D. Questions Any conviction for a sexual offense, a drug 1. All applications, for each of the cat- felony, a violent crime, or a criminal offense egories of individuals identified in § 86.3, will involving a child or children. include the following questions: ‘‘Have you ever been arrested for or charged with a B. Discretionary Criteria crime involving a child? Have you ever been 1. Acts that may tend to indicate poor asked to resign because of or been decertified judgment, unreliability, or for a sexual offense? And, if so, ‘‘provide a untrustworthiness in working with children. description of the case disposition.’’ For 2. Any behavior; illness; or mental, phys- FCC, foster care, and respite care providers, ical, or emotional condition that in the opin- this question is asked of the applicant re- ion of a competent medical authority may garding all adults, and all children 12 years cause a defect in judgment or reliability. and older, who reside in the household. 3. Offenses involving assault, battery, or 2. All applications shall state that the other abuse of a victim, regardless of age of form is being signed under penalty of per- the victim. jury. In addition, a false statement rendered 4. Evidence or documentation of substance by an employee may result in adverse action abuse dependency. up to and including removal from Federal 5. Illegal or improper use, possession, or service. addiction to any controlled or psychoactive 3. Evaluation of criminal history back- substances, narcotic, cannibas, or other dan- ground checks is made and monitored by gerous drug. qualified personnel at the appropriate level 6. Sexual acts, conduct, or behavior that, designated by the Component. Final suit- because of the circumstances in which they ability decisions are made by the designee. occur, may indicate untrustworthiness, unreliability, lack of judgment, or irrespon- APPENDIX C TO PART 86—STATE sibility in working with children. INFORMATION 7. A wide range of offenses such as arson, homicide, robbery, fraud, or any offense in- All SCHR checks should be accompanied volving possession or use of a firearm. by the following: 1. State form, if required. If 8. Evidence that the individual is a fugitive no State form is required, the request should from justice. be on letterhead, beginning with the state- 9. Evidence that the individual is an illegal ment that the check is in accordance with alien who is not entitled to accept gainful Public Law 101–647. The request must include employment for a position. full identifying information, such as: Name, 10. A finding of negligence in a mishap date of birth, social security number, com- causing death or serious injury to a child or plete addresses, etc. dependent person entrusted to their care. 2. Fingerprint set if required. Some State laws require a fingerprint set either on a C. Suitability Considerations State form or forms used by the agency. In making a determination of suitability, 3. Release statement signed by the appli- the evaluator shall consider the following cant or employee. If required by the State, additional factors to the extent that these the release must be notarized. examples are considered pertinent to the in- 4. Payment for the SCHR check. dividual case: 5. Self-addressed, stamped envelope. 1. The kind of position for which the indi- The following is an updated listing of State vidual is applying or employed. addresses, fees, and other information:

Address Fee Remarks

State of Alabama, Alabama Dept. of Public Safety, Attn: ABI Di- $25 ...... Name check, COMM: 205±242±4372. vision, 5002 Washington Ave., Montgomery, AL 36130.

435 Pt. 86, App. C 32 CFR Ch. I (7–1–97 Edition)

Address Fee Remarks

State of Alaska, Alaska Dept, of Public Safety, Information Sys- 20 ...... Fingerprints required, reason for request tems Section, 5700 Tudor Road, Anchorage, AK 99507. required (comply with Pub. L.), name and address authorized request and receive SCHRC, COMM: 907±269±5511. State of Arizona, Arizona Criminal Justice, Dept. of Public Safe- No check ...... Limited release, call/write, write for infor- ty, Information Systems Division, PO Box 6638, Phoenix, AZ mation. COMM: 602±223±2229. 80550. State of Arkansas, Arkansas State Police, PO Box 5901, Little No fee ...... Name check, written consent required, Rock, AR 72215. COMM: 501±221±8233. State of California, Dept. of Justice, Bureau of Criminal Justice, 27 ...... Fingerprints required, COMM: 916±739± Identification and Information Bureau, PO Box 903417, Sac- 2786. ramento, CA 94203±4170. State of Colorado, Crime Information Center, Colorado Bureau 4.50 ...... Write/call for form, name check, COMM: of Investigation, 690 Kipling Street, #3000, Lakewood, CO 303±239±4222/4229. 80215. State of Connecticut, Dept. of State Police, Bureau of Investiga- No fee ...... Name check, written consent required, tion, Building 4, 294 Colony Street, Meriden, CT 06450. copy of Pub. L. required, COMM: 203± 238±6155. State of Delaware, Delaware State Police-SBI, State Bureau of 25 ...... Fingerprints required, COMM: 302±739± Investigation, PO Box 430, Dover, DE 19903. 5871. Washington, DC, Identification and Records Division, Metropoli- No fee ...... Name check, wittten request required, tan Police Dept., Room 2076, 300 Indiana Avenue, NW., COMM: 202±727±4245. Washington, DC 20001. State of Florida, Florida Dept. of Law Enforcement, PO Box 10 ...... Name check, check to: Dept. of Law En- 1489, Tallahassee, FL 32302. forcement, COMM: 904±488±6236. State of Georgia, Georgia Criminal Information Center, PO Box 15 ...... Write or call for form, notary and finger- 370748, Decatur, GA 30037±0748. prints required, COMM: 404±244±2644. State of Hawaii, Criminal Justice Data Center, 465 South King No fee ...... Name check, COMM: 808±587±3100. Street, Room 101, Honolulu, HI 96813. State of Idaho, Idaho Dept. of Law Enforcement, Criminal Identi- 5 ...... Name check, written consent required, fication Bureau, 6064 Corporal Lane, Boise, ID 83704. payment to: Dept. of Law Enforcement, COMM: 208±327±7130. State of Illinois, Bureau of Identification, 260 North Chicago 14 ...... Write or call for form, name check, COMM: Street, Joliet, IL 60431±1060. 815±740±5184. State of Indiana, Indiana State Police, 100 North Senate Ave- 7 ...... Write or call for form, name check, COMM: nue, Room 312, Indianapolis, IN 46204. 317±232±8266. State of Iowa, Commissioner Paul H. Wieck II, Iowa Dept. of 6 ...... Release within State, COMM: 515±281± Public Safety, Wallace State Office Building, Des Moines, IA 5138. 50319. State of Kansas, Kansas Bureau of Investigation, 1620 South- 10 ...... Write or call for form, name check, $5 per west Tyler, Topeka, KS 66612. name, over two names, COMM: 913± 232±6000. State of Kentucky, Kentucky State Police Records, State Office 4 ...... Write or call for form, name check, COMM: Building, 1250 Louisville Road, Frankfort, KY 40601. 502±227±8700x214. State of Louisiana, Louisiana State Police, Department of Public 13 ...... Write or call for form, fingerprints required, Safety, PO Box 66614, Baton Rouge, LA 70896. COMM: 502±925±6095. State of Maine, State Bureau of Investigation, Department of No fee ...... Name check, reason for check required; Public Safety, Maine State Police, 36 Hospital Street, Au- i.e., comply with Pub. L., COMM: 207± gusta, ME 04333. 624±7009. State of Maryland, Criminal Justice Information Service, Central 18 ...... Write or call for form, name check, COMM: Repository, Building G4, 1201 Reistertown Road, Pikesville, 410±764±4501. MD 21208. State of Massachusetts, Executive Office of Public Safety, Crimi- No fee ...... Write or call for form, name check, COMM: nal History Systems Board, 1010 Commonwealth Avenue, 617±727±0090x12. Boston, MA 02215. State of Michigan, Michigan State Police, FOI Unit, 7150 Harris No check ...... No release, COMM: 517±322±5531. Drive, Lansing, MI 48913. State of Minnesota, Criminal Justice Information Systems, Bu- 8 ...... Name check, written consent required, reau of Criminal Apprehension, Minnesota Dept. of Public COMM: 612±642±0670. Safety, 1246 University Avenue, St. Paul, MN 55104. State of Mississippi, Department of Public Safety, ATTN: Identi- No fee ...... Write or call for form, name check, COMM: fication Bureau, PO Box 958, Jackson, MS 39225. 607±987±1212. State of Missouri, Criminal Records Division, State Highway Pa- 5 ...... Write or call for form, name check COMM: trol, Department of Public Safety, PO Box 568, Jefferson City, 314±751±3313. MO 65102. State of Montana, Identification Bureau, Department of Justice, 5 ...... Name check, COMM: 406±444±3625. 303 North Roberts, Helena, MT 59620±1418. State of Nebraska, Nebraska State Patrol, PO Box 94907, State 10 ...... Name check, COMM: 402±471±4545. House Station, ATTN: CID, Lincoln, NE 68509±4907. State of Nevada, Nevada Highway Patrol, 555 Wright Way, Car- 15 ...... Write or call for form, fingerprints required, son City, NV 89711. COMM: 702±687±5300. State of New Hampshire, New Hampshire State Policy HQ, 10 ...... Write or call for form, name check, COMM: Criminal Records, 10 Hazen Drive, Concord, NH 03305. 603±271±2538.

436 Office of the Secretary of Defense § 88.1

Address Fee Remarks

State of New Jersey, Division of State Police, Records and ID 12 ...... Copy of Pub. L. required, name check, Section, PO Box 7068, West Trenton, NJ 08625±0068. COMM: 609±882±2000. State of New Mexico, Department of Public Safety, Records Bu- 5 ...... Write or call for form, name check, notary reau, PO Box 1628, Sante Fe, NM 87504±1628. required, COMM: 505±827±9181. State of New York, Division of Criminal Justice Services, Execu- No check ...... No release at current time, state requires tive Park Tower, Stuyvesant Plaza, Albany, NY 12203. an agreement with agency to process, COMM: 518±485±7685. State of North Carolina, Division of Criminal Information, Bureau 14 ...... Fingerprint form required, copy of Pub. L. of Investigation, 407 North Blount Street, Raleigh, NC 27601± required, call/write for form, COMM: 1009. 919±662±4500. State of North Dakota, Bureau of Criminal Information, PO Box 20 ...... Name check, written consent required, 1054, Bismark, ND 58502. COMM: 702±221±6180. State of Ohio, Bureau of Criminal Information, PO Box 365, Lon- 15 ...... Write or call for form, written consent re- don, OH 43140. quired, fingerprints required, COMM: 614±852±2556. State of Oklahoma, Oklahoma Law Enforcement, Criminal His- 10 ...... Write or call for form, name check, COMM: tory Information, ATTN: Criminal History, PO 11497, Okla- 405±848±6724. homa City, OK 73136. State of Oregon, Criminal ID, State Police, 155 Cottage Street, 10 ...... Name check, COMM: 503±378±3070. NE, Salem, OR 97310. State of Pennsylvania, Records and ID Division, Pennsylvania 10 ...... Write or call for form, name check, 10 State Police, Dept. HQ, 1800 Elmerton Avenue, Harrisburg, COMM: 717±783±5592. PA 17110. State of Rhode Island, Rhode Island State Police, PO Box 185, No fee ...... Name check, written consent required, North Scituate, RI 02857. COMM: 401±647±3311. State of South Carolina, State Law Enforcement Division, ATTN: 10 ...... Name check, COMM: 803±737±4205, Criminal Records, PO Box 21398, Columbia, SC 29221±1398. DSN: 734±1110. State of South Dakota, Division Criminal Investigation, Attorney 15 ...... Write or call for form, fingerprints required, General's Office, East Highway 34, Pierre, SD 57501±5070. COMM: 605±773±3334. State of Tennessee, Tennessee Criminal Information Center, 23 ...... Write or call for form, fingerprints required, Tennessee Bureau of Investigation, PO Box 100940, Nash- COMM: 615±741±3241. ville, TN 37210. State of Texas, Texas Crime Records Division, Texas Dept. of 15 ...... Fingerprints required, written consent re- Public Safety, PO Box 15999, Austin, TX 78761±5999. quired, COMM: 512±465±2079. State of Utah, Bureau of Criminal Identification, Utah Dept. of No fee ...... Write or call for form, name check, copy of Public Safety, 4501 South 2700 West, Salt Lake City, UT law required, COMM: 801±965±4571. 84119. State of Vermont, Vermont Criminal Information Center, Dept. of No fee ...... Name check, written consent required, Public Safety, PO Box 189, Waterbury, VT 05676. COMM: 802±244±8786. Commonwealth of Virginia, Virginia Records Management Div., 10 ...... Write or call for form, name check, COMM: Dept. of State Police, PO Box 850761, Richmond, VA 23261± 804±674±2024. 5076. State of Washington, Washington, State Patrol, Identification 10 ...... Write or call for form, name check, COMM: Section, PO Box 42633, Olympia, WA 98504±2633. 206±753±0230/7272. West Virginia State Police, Dept. of Public Safety, 725 Jefferson 5 ...... Write or call for form, name check, COMM: Road, South Charleston, WV 25309. 304±746±2180. State of Wisconsin, Crime Information Bureau, Dept. of Justice, 2 ...... Write or call for form, name check, COMM: ATTN: Records Data Unit, PO Box 2718, Madison, WI 53701± 608±266±7314. 2718. State of Wyoming, Division of Criminal Investigation, 316 West 15 ...... Write or call for form, fingerprints required, 22nd Street, Cheyenne, WY 82002. written consent required, COMM: 307± 777±7181.

PART 88—TRANSITION ASSISTANCE § 88.1 Purpose. FOR MILITARY PERSONNEL (a) This part supersedes the Assistant Secretary of Defense For Force Man- Sec. agement and Personnel memorandum,1 88.1 Purpose. ‘‘Policy Changes For Transition Assist- 88.2 Applicability and scope. ance Initiatives,’’ June 7, 1991, estab- 88.3 Definitions. lishes policy, and assigns responsibil- 88.4 Policy. ities for transition assistance programs 88.5 Responsibilities. 88.6 Information requirements. 1 Copies may be obtained, at cost, from the AUTHORITY: 10 U.S.C. chapter 58. Directorate of Transition Support and Serv- SOURCE: 59 FR 14559, Mar. 29, 1994, unless ices, Office of the Assistant Secretary of De- otherwise noted. fense for Personnel and Readiness, 4000 De- fense Pentagon, Washington, DC 20301–4000.

437 § 88.2 32 CFR Ch. I (7–1–97 Edition) for active duty military personnel and under other than adverse conditions as their families. characterized by the Secretary of the (b) Implements transition assistance separating Service member’s Military programs for DoD military personnel Department. Discharge under adverse and their families as outlined in sec- conditions is determined by referring tion 502, Public Law 101–510; section 661 to the reason for separation as well as and section 662, Public Law 102–190, and the officer’s service, as outlined in De- sections 4401–4501, Public Law 102–484. partment of Defense Directive 1332.30. (3) In the case of a Regular enlisted § 88.2 Applicability and scope. member serving on active duty, he or This part applies to: (a) The Office of she is denied reenlistment or involun- the Secretary of Defense, the Military tarily discharged under other than ad- Departments, the Chairman of the verse conditions, as characterized by Joint Chiefs of Staff, the Unified Com- the Secretary of the separating Service batant Commands, and the Defense member’s Military Department. Dis- Agencies (hereafter referred to collec- charge under adverse conditions is de- tively as ‘‘the DoD Components’’). The termined by referring to the reason for term ‘‘Military Services,’’ as used here- separation as well as the enlisted mem- in, refers to the Army, the Navy, the ber’s service, as outlined in Depart- Air Force, and the Marine Corps. ment of Defense Directive 1332.14.3 (b) All active duty Service members (4) In the case of a Reserve enlisted and their families. member who is on full-time active duty (or in the case of a member of the Na- § 88.3 Definitions. tional Guard, full-time National Guard (a) Involuntary separation. A member duty) for the purpose of organizing, ad- of the Military Service shall be consid- ministering, recruiting, instructing, or ered to be involuntarily separated if he training the Reserve components, he or or she was on active duty or full-time she is denied reenlistment or is invol- National Guard duty on September 30, untarily discharged or released from 1990 and: active duty (or full-time National (1) In the case of a Regular officer Guard duty) under other than adverse (other than a retired officer), he or she conditions as determined by referring was involuntarily discharged under to the reason for separation as well as other than adverse conditions, as char- the enlisted member’s service, as out- acterized by the Secretary of the sepa- lined in Department of Defense Direc- rating Service member’s Military De- tive 1332.14. partment. Discharge under adverse (b) Separation entitlements. Benefits conditions is determined by referring provided to Service members being in- to the reason for separation as well as voluntarily separated on or before Sep- the officer’s service, as outlined in De- tember 30, 1995 as defined in paragraphs partment of Defense Directive 1332.30.2 (a)(1) through (a)(4) of this section, and (2) In the case of a Reserve officer their families. Benefits provided to who is on the active duty list or, if not Service members being separated under on the active duty list, is on full-time the Special Separation Benefit or Vol- active duty (or in the case of a member untary Separation Incentive on or be- of the National Guard, full time Na- fore September 30, 1995, as defined in tional Guard duty) for the purpose of paragraph (c) of this section and their organizing, administering, recruiting, families. These benefits include: Train- instructing, or training the Reserve ing opportunities under the Job Train- components, he or she is involuntarily ing Partnership Act as described in sec- discharged or released from active duty tion 4465 of Public Law 102–484; priority or full-time National Guard duty affiliation with the National Guard and (other than a release from active duty Reserve, as described in section or full-time National Guard duty inci- 502(a)(1) of Public Law 101–510, as dent to a transfer to retired status) amended; enrolled in the All–Volunteer Force Educational Assistance Program 2 Copies may be obtained, at cost, from the (‘‘Montgomery G.I. Bill’’), as described National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161. 3 See footnote 2 to section 88.3(a)(1).

438 Office of the Secretary of Defense § 88.5 in section 4404 of Public Law 102–484; fined in )88.3 (d) to be provided to Serv- extended medical and dental care, as ice members and their families for up described in section 502(a)(1) of Public to 90 days after separation, space and Law 101–510, as amended, and sections work load permitting. 4407 and 4408 of Public Law 102–484; con- (2) Separation entitlements as de- tinued use of military family housing fined in § 88.3 (b) for Service members as described in section 502 (a)(1) of Pub- who are involuntarily separating as de- lic Law 101–510, as amended (subject to fined in § 99.3 (a) or separating under Status of Forces Agreements overseas); the Voluntary Separation Incentive or extended and commissary privileges as Special Separation Benefit Programs detailed in section 502(a)(1) of Public as defined in § 88.3 (c). Law 101–510, as amended (subject to (d) Service members from one Serv- Status of Forces Agreements overseas); ice shall not restricted from participat- travel and transportation allowances, ing in another Service’s transition as- as detailed in section 503 of Public Law sistance program unless workload or No. 101–510, as amended; continuation other unusual circumstances dictate. of enrollment in Department of De- Every effort will be made to accommo- fense Dependents Schools as detailed in date all eligible personnel, especially if section 504 of Public Law 101–510, as referral to another transition site will amended (subject to Status of Forces require the Service member to travel a Agreements overseas.) long distance and incur significant ex- (c) Special separation benefit and vol- pense. untary separation incentive. Voluntary (e) [Reserved] separation programs established in sec- (f) When being discharged, released tion 661 and section 662 of Public Law from active duty, or retiring (hereafter 102–190, as amended. Service members referred to as ‘‘separating Service separated under these programs are eli- members’’), Service members and their gible for both transition services and families bear primary responsibility separation entitlements outlined in for their successful transition into the paragraphs (b) and (d) of this section. civilian sector. (d) Transition services. Preseparation (g) Spouses shall be encouraged to counseling, individual transition plan- participate in transition planning and ning, employment assistance, excess counseling to the maximum extent pos- leave and permissive temporary duty, sible. and relocation assistance for personnel (h) Enhanced transition programs overseas as described in section 502 shall be established for Service mem- (a)(1) of Public Law 101–510, as amend- bers and their families who are over- ed. seas to help alleviate the special dif- § 88.4 Policy. ficulties overseas personnel encounter when job and house hunting. It is DoD policy that: (a) Transition (i) Installations in the United States assistance programs prepare separating shall give priority transition assist- Service members and their families ance to personnel who recently re- with the skills, tools, and self-con- turned from overseas. fidence necessary to ensure successful reentry into the Nation’s civilian work § 88.5 Responsibilities. force. (b) Transition assistance programs be (a) The Assistant Secretary of De- designed to complete the military per- fense for Personnel and Readiness sonnel ‘‘life cycle.’’ This cycle begins shall; (1) Issue guidance on transition with the Service member’s recruitment assistance programs for Service mem- from the civilian sector, continues bers and their families, as necessary. with training and sustainment (2) Coordinate, as necessary, within throughout a Service members’s active the Department of Defense to ensure service in the Armed Forces, and ends the availability of high quality, equi- when the Service member returns to table, and cost-effective transition pro- the civilian sector. grams among the Military Services. (c) Transition assistance programs (3) Coordinate with and seek the as- include: (1) Transition service as de- sistance of the Departments of Labor

439 § 88.6 32 CFR Ch. I (7–1–97 Edition) and Veterans Affairs, and other Fed- permanently assigned or serving at eral Agencies to facilitate delivery of that installation. high quality transition assistance pro- (3) The participation of separating grams to separating Service members. Service members in transition assist- (4) Evaluate the level of resources ance programs shall be coordinated needed to deliver quality transition with mission requirements. programs and facilitate efforts to ob- (4) Transition assistance programs tain these resources. are allocated the resources necessary (5) Monitor and evaluate the overall to delivery quality transition assist- effectiveness of transition assistance ance programs. programs. (5) The Military Services are rep- (6) Coordinate with theater com- resented on the Department of Defense manders, though the Chairman of the Service Member Transition Assistance Joint Chiefs of Staff, on transition as- Coordinating Committee. Each of the sistance programs (job fairs and train- Military Services may invite an instal- ing conferences, for example) impact- lations-level transition manager to ing overseas Unified Combatant Com- participate. mands. (6) Quarterly reports on the status of (7) Establish the Department of De- transition programs are submitted to fense Service Member Transition As- the Assistant Secretary of Defense for sistance Coordinating Committee, con- Personnel and Readiness beginning the sisting of representatives from the second quarter after this publication is Military Services and Assistant Sec- published, and continuing each quarter retary of Defense for Personnel and until cancellation of this part. Readiness. The purpose of this commit- (7) The Inspector General of each tee is to provide DoD-level direction Military Service shall review and re- and coordination for transition assist- port compliance with § 88.5(d)(1) ance programs. through (d)(6) to the Service Secretary, (8) Collect data to determine system- on an annual basis, due no later than atically the degree to which transition January 31 of the next calendar year. assistance programs satisfy the needs § 88.6 Information requirements. of transitioning Service members and their families. The quarterly report requirement in (9) Review, modify, and reissue policy § 88.5(d)(6) has been assigned Report guidance, as required. Control Symbol DD–P&R(Q) 1927. (b) The Assistant Secretary of De- fense for Reserve Affairs shall establish PART 89—CIVILIAN PAY and publish guidance on transition as- ALLOTMENTS sistance programs for Reserve personnel and their families. Sec. (c) The Assistant Secretary of De- 89.1 Reissuance and purpose. fense for Health Affairs shall establish 89.2 Applicability and scope. guidance on transitional medical and 89.3 Definitions. 89.4 Criteria and standards. dental care, including health insurance ENCLOSURE 1 and preexisting conditions coverage, for Service members and their families. AUTHORITY: 5 U.S.C. 5525. (d) The Secretaries of the Military SOURCE: 44 FR 24548, Apr. 26, 1979, unless Departments shall ensure compliance otherwise noted. with the criteria in Public Law 101–510, 102–190, and 102–484, as amended, and § 89.1 Reissuance and purpose. the following provisions: This part updates the uniform poli- (1) Preparation counseling shall be cies established in implementation of available no later than 90 days before Office of Personnel Management (OPM) separation to all separating Service Regulation, ‘‘Allotments and Assign- members. ments from Federal Employees (5 CFR (2) High quality transition counseling 550.301) and Treasury Fiscal Require- and employment assistance programs ments Manual for Guidance of Depart- are established on military facilities ments and Agencies (volume 1, part 3, with more than 500 Service members ‘‘Payrolls, Deductions and

440 Office of the Secretary of Defense § 89.4

Withholdings’’) and to provide for allotter as long as that purpose does not lotments to professional and other or- circumvent any statute, executive ganizations as authorized by Federal order or other applicable regulation. Personnel Manual (chapter 252, Profes- (3) Payment of commercial insurance sional and other Associations). premiums on the life of the allotter. (4) Payments of U.S. Government § 89.2 Applicability and scope. Life Insurance or National Service Life The provisions of this part apply to Insurance premiums. the Office of the Secretary of Defense, (5) Voluntary liquidation of indebted- the Military Departments, and the De- ness to the U.S. Government. fense Agencies and govern the policy (6) Repayment of loans obtained for under which civilian employees may the purchase of a home. make allotments of their pay. (7) Payment of certain State and Dis- trict of Columbia income taxes as au- § 89.3 Definitions. thorized by OPM Regulation and the Selected Terms used are defined Treasury Fiscal Requirements Manual. below: (8) Payment of certain city income (a) Allotment. A recurring, specified taxes as authorized by OPM Regulation deduction from pay authorized by a ci- and the Treasury Fiscal Requirements vilian employee to be paid to an allot- Manual. tee. (9) Payment of labor organization (b) Allottee. The person or institution dues as authorized by DoD Directive 1 to whom an allotment is made payable. 1426.1, ‘‘Labor-Management Relations (c) Allotter. The employee from whose in the Department of Defense’’. civilian pay the allotment is made. (10) Charitable contributions to a (d) Pay. The net pay due an employee Combined Federal Campaign as author- 1 after all deductions authorized by law ized by DoD Directive 5035.1, ‘‘Fund- (such as retirement, social security, Raising within the Department of De- fense’’ and DoD Instruction 5035.5, 1 Federal and State withholding tax, ‘‘DoD Combined Federal Campaign— health benefits, and group life insur- Overseas Area (CFC–OA)’’. ance) have been made. (11) Purchase of U.S. savings bonds. (e) Continental United States. The sev- Employees normally will be permitted eral States and the District of Colum- only two such allotments at any one bia, but excluding Alaska and Hawaii. time. Additional allotments for § 89.4 Criteria and standards. amounts of $18.75 or more in approved increments may be authorized to the (a) Authorized allotments. Allotments extent the pay system can accommo- may be made for the following pur- date such allotments. poses: (12) Payment of dues to a profes- (1) Support of relatives or dependents sional or other association. One allot- of the allotter. ment in a calendar year may be made (2) Savings. by an employee to an association when (i) Unrestricted as to allottee. Two the association: such allotments may be authorized an (i) Provides some worthwhile func- eligible employee at any one time. The tion or service that would contribute eligibility criteria are specified in to the agency’s mission and programs paragraph (b)(1) of this section. or to the morale and welfare of the (ii) Allotted to a financial organiza- agency’s employees. (See also DoD In- tion for credit to a savings account of struction 5010.30,1 ‘‘Intramanagement the allotter as authorized by the Treas- Communication and Consultation’’.) ury Fiscal Requirements Manual. Only (ii) Has a sufficient number of mem- two such allotments, in whole dollars, bers who request dues withholding to under this provision shall be allowed justify the administrative arrange- an eligible employee. Eligibility cri- ments required; that is, a minimum of teria are specified in paragraph (b)(2) of this section. Monies thus credited to 1 Copies may be obtained, if needed, from the allotter’s savings account may be the U.S. Naval Publications and Forms Cen- used for any purpose in accordance ter, 5801 Tabor Avenue, Philadelphia, PA. with the desires and direction of the al- 19120. Attention: Code: 301.

441 § 89.4 32 CFR Ch. I (7–1–97 Edition) either 50 participants, or 1 percent of The table is in general terms and is for the total number, paid by the payroll general guidance only. The specific office. This criterion may be waived by rules are listed below: the Assistant Secretary of Defense (1) An employee may make an allot- (Manpower, Reserve Affairs, and Logis- ment of pay as provided in paragraphs tics) for associations of supervisors (a) (1), (2)(i), (3) through (6), (11), and when circumstances warrant. (12) of this section when the employee (iii) Is not a labor organization eligi- is: ble for recognition under DoD Direc- (i) Assigned to a post of duty outside tive 1426.1 1 does not have the charac- the continental United States; teristics or purposes of a labor organi- (ii) Working on an assignment away zation, and is not affiliated with a from his regular post of duty when the labor organization or federation of assignment is expected to continue for labor organizations. 3 months or more; (iv) Is a lawful nonprofit organiza- (iii) Serving as an officer or member tion. The organization’s constitution of a crew of a vessel under the control and bylaws must indicate that the or- of the Federal Government. ganization subscribes to certain mini- (2) An employee whose place of em- mum standards of fiscal responsibility ployment is within the continental and that it employs democratic prin- United States may authorize an allot- ciples in the nomination and election ment of pay as provided in paragraph of officers. (a) (2)(ii) and (5), (11), and (12) of this (v) Does not discriminate in regard to section. the terms or conditions of membership (3) An employee, who is employed because of race, color, creed, sex, age, outside of, but is a resident in, a State or national origin. or the District of Columbia with which (vi) Does not advocate and has not the Department of the Treasury has assisted or participated in a strike, entered into an agreement to withhold work stoppage, or slowdown against income taxes from the pay of employ- the Government of the United States ees in accordance with the procedures or any agency thereof, nor does it im- prescribed in the Treasury Fiscal Re- pose a duty or obligation on its mem- quirements Manual, may make an al- bers to conduct, assist, or participate lotment of pay for the purpose speci- in such a strike. fied in paragraph (a)(7). (vii) Does not advocate the overthrow (4) An employee, who is employed in, of the constitutional form of Govern- or a resident of, a city with which the ment in the United States. Department of the Treasury has en- (viii) Agrees to reimburse the United tered into an agreement to withhold States for the full cost of establishing city income taxes in accordance with the allotment and making payment to the procedures prescribed in the Treas- the organization. Such costs will not ury Fiscal Requirements Manual, may be passed on to the employee by any make an allotment of pay for the pur- special charge or assessment in excess pose specified in paragraph (a)(8). of that paid by other members. This re- (5) An employee who meets the eligi- imbursement may be waived, in whole bility requirements prescribed in DoD or in part, by the ASD (MRA&L) for as- Directive 1426.1,1 may make an allot- sociations of supervisors when war- ment of pay for the purpose specified in ranted. paragraph (a)(9) of this section. (ix) Meets any additional criteria im- (6) An employee who meets the eligi- posed by the Military Departments or bility requirements prescribed in DoD Defense Agencies, or by the individual Directive 5035.11 may make an allot- payroll offices. ment of pay for the purpose specified in (b) Eligibility rules. Eligibility for the § 89.4(a)(10). making of an allotment is dependent (c) Emergency allotments. Allotments on such factors as residents of em- may be authorized to become effective ployee, place of employment and type during an emergency evacuation in ac- of allotment desired. The specific rules cordance with provisions of the OPM listed below are summarized in the table ‘‘Allotments of Pay,’’ enclosure 1. 1 See footnote 1 to this section.

442 Office of the Secretary of Defense § 89.4

Regulation, such allotments will not (2) Allotment payments shall be become effective until an evacuation made in accordance with the schedule order has been issued. established by the particular depart- (d) Allotments for foreign nationals. ment or agency of the DoD, provided Foreign nationals employed by the De- such allotment checks are not issued partment of Defense (DoD) and work- until the related earnings have ac- ing outside their own country on as- crued. This shall be stipulated as a re- signments of three or more months du- quirement for the allotment. ration may be permitted to make allot- (3) Except as provided by paragraph ments for any of the purposes author- (a)(2) and (11), a DoD employee shall ized in paragraph (a) of this section, not have more than one allotment pay- providing all other provisions of this able to the same allottee at the same time. part are observed. (4) Allotments will not exceed the (1) Foreign nationals employed by pay due the allotter. the DoD to work in their own countries (f) Discontinuance of allotments. Allot- or in the Canal Zone may be permitted ments will be discontinued: to make allotments for the purposes (1) Upon receipt of: (i) Notice of re- shown in paragraph (a) (9) and (10) of tirement, separation, or death of the this section, and to pay premiums on allotter; group health benefits and group life in- (ii) Notice that the allotter has been surance. placed in an extended leave without (2) Foreign nationals may be per- pay status; mitted to make other allotments from (iii) Written notice from the allotter pay when such allotments are based on unless this right is otherwise restricted local customs and practices or are pur- by law; suant to treaties or country-to-country (iv) Notice of death of the allottee; or agreements. (v) Notice that the whereabouts of (e) Allotment limitations. (1) A power of the allottee is unknown. attorney will not be accepted to estab- (2) When the conditions under which lish, change, or discontinue an allot- an allotment was permitted no longer ment. exist.

443 Pt. 89, Encl. 32 CFR Ch. I (7–1–97 Edition) 1.l tions sional Profes- organiza- and other 1.k bonds Savings 1.j Com- bined Cam- paign Federal 1.i ganiza- Labor or- tion dues 1.h City income tax 1.g State income tax AY 1.f P Home loan repayment Authorized allotments 1.e ness to ernment Indebted- U.S. Gov- LLOTMENTS OF [Enclosure 1] 1.d ÐA ance Service ernment National life insur- and Gov- ABLE T 1.c cial life Commer- insurance 1.b(2) account Financial institution 1.b(1) Savings 1.a of de- Support pendents ...... X ...... X ...... X ...... X X ...... X ...... X ...... is: ...... X ...... X X ...... X X X X ...... X X State of residence and U.S. Govern- ment has a withholding agreement participating in a Combined Federal Campaign duty outside the U.S., away from regular duty post over three months or on duty a vessel under U.S. Government control United States city with which U.S. Government has a withholding agreement employee organization for which employer has agreed to collect dues purposes indicated when the employee be authorized for the : The letter and number identifying each rule allotment purpose references the subsection paragraph of section D in Directive that provide a complete description. Allotment of pay may Working outside Working in an area Assigned to a post of Working within the Working or living in a A member of a labor/ OTE 2.f N 2.c 2.a 2.b 2.d 2.e Rule

444 Office of the Secretary of Defense § 93.3

PART 93—ACCEPTANCE OF SERV- NSA personnel, through testimony or ICE OF PROCESS; RELEASE OF otherwise. OFFICIAL INFORMATION IN LITI- (b) This part is intended only to pro- GATION; AND TESTIMONY BY vide guidance for the internal operation of the NSA and does not create NSA PERSONNEL AS WITNESSES any right or benefit, substantive or procedural, enforceable at law against Sec. the United States, the Department of 93.1 References. 93.2 Purpose and applicability. Defense, or NSA. This part does not 93.3 Definitions. override the statutory privilege 93.4 Policy. against the disclosure of the organiza- 93.5 Procedures. tion or any function of the NSA, of any 93.6 Fees. information with respect to the activi- 93.7 Responsibilities. ties thereof, or of the names, titles, AUTHORITY: E.O. 12333, 3 CFR, 1981 Comp., salaries, or numbers of the persons em- p. 200; 50 U.S.C. apps. 401, 402. ployed by the NSA. See section 6(a) of the DoD Directive referenced under SOURCE: 56 FR 51328, Oct. 11, 1991, unless otherwise noted. § 93.1(a).

§ 93.1 References. § 93.3 Definitions. (a) DoD Directive 5405.2,1 ‘‘Release of (a) Service of process. Refers to the de- Official Information in Litigation and livery of a summons and complaint, or Testimony by DoD Personnel as Wit- other document the purpose of which is nesses,’’ July 23, 1985, reprinted in 32 to give notice of a proceeding or to es- CFR part 97. tablish the jurisdiction of a court or (b) E.O. 12333, United States Intel- administrative proceeding, in the man- ligence Activities, 3 CFR, 1981 Comp., ner prescribed by § 93.1(d), to an officer p. 200, reprinted in 50 U.S.C. app. 401. or agency of the United States named (c) The National Security Agency in court or administrative proceedings. Act of 1959, Public Law No. 86–36, as (b) Demand. Refers to the delivery of amended, 50 U.S.C. app. 402. a subpoena, order, or other directive of (d) Rule 4, Federal Rules of Civil Pro- a court of competent jurisdiction, or cedure. other specific authority, for the pro- (e) DoD Instruction 7230.7,2 ‘‘User duction, disclosure, or release of offi- Charges’’, January 29, 1985. cial information, or for the appearance (f) 28 CFR 50.15. and testimony of NSA personnel as witnesses. § 93.2 Purpose and applicability. (c) NSA personnel. (or NSA person) In- (a) This part implements § 93.1(a) in cludes present and former civilian em- the National Security Agency/Central ployees of NSA (including non-appro- Security Service including all field priated fund activity employees), and sites (hereinafter referred to collec- present and former military personnel tively as NSA). The procedures herein assigned to NSA. NSA personnel also are also promulgated pursuant to the includes non-U.S. nationals who per- NSA’s independent authority, under form services overseas for NSA under § 1.12(b)(10) of E.O. 12333 referenced the provisions of status of forces or under § 93.1(b), to protect the security other agreements, and specific individ- of its activities, information and em- uals hired through contractual agree- ployees. This part establishes policy, ments by or on behalf of NSA. assigns responsibilities, and prescribes (d) Litigation. Refers to all pretrial, mandatory procedures for service of trial, and post-trial stages of all exist- process at NSA and for the release of ing or reasonably anticipated judicial official information in litigation by or administrative actions, hearings, investigations, or similar proceedings be- 1 Copies may be obtained, at cost, from the fore civilian courts, commissions, National Technical Information Service, 5285 boards, or other tribunals, foreign and Port Royal Road, Springfield, VA 22161. domestic. It includes responses to dis- 2 See footnote 1 to § 93.1(a). covery requests, depositions, and other

445 § 93.4 32 CFR Ch. I (7–1–97 Edition) pretrial proceedings, as well as rein compliance with the following pro- sponses to formal or informal requests cedures. by attorneys or others in situations in- (1) If official information is sought, volving litigation. through testimony or otherwise, by a (e) Official information. Is information litigation demand, the individual seek- of any kind, in any storage medium, ing such release or testimony must set whether or not classified or protected forth, in writing and with as much from disclosure by § 93.l(c) that: specificity as possible, the nature and (1) Is in the custody and control of relevance of the official information NSA; or sought. Subject to paragraph (a)(5) of (2) Relates to information in the cus- this section, NSA personnel may only tody and control of NSA; or produce, disclose, release, comment (3) Was acquired by NSA personnel as upon or testify concerning those mat- part of their official duties or because ters that were specified in writing and of their official status within NSA. approved by the GC. (f) General Counsel. Refers to the NSA (2) Whenever a litigation demand is General Counsel (GC), or in the GC’s made upon NSA personnel for official absence, the NSA Deputy GC, or in information or for testimony concern- both of their absences, the NSA Assist- ing such information, the person upon ant GC (Administration/Litigation). whom the demand was made shall im- (g) NSA attorney. Refers to an attor- mediately notify the OGC. After con- ney in the NSA Office of General Coun- sultation and coordination with the sel (OGC). DoJ, if required, the GC shall determine whether the individual is required § 93.4 Policy. to comply with the demand and shall Official information that is not clas- notify the requester or the court or sified, privileged, or otherwise pro- other authority of that determination. tected from public disclosure, should (3) If a litigation demand requires a generally be made reasonably available response before instructions from the for use in Federal and State courts and GC are received, the GC shall furnish by other governmental bodies. the requester or the court or other authority with a copy of § 93.1(a) and this § 93.5 Procedures. part 93. The GC shall also inform the (a) Release of official information in requester or the court or other author- litigation. NSA personnel shall not ity that the demand is being reviewed, produce, disclose, release, comment and seek a stay of the demand pending upon, or testify concerning any official a final determination. information during litigation without (4) If a court or other authority de- the prior written approval of the GC. In clines to stay the demand in response exigent circumstances, the GC may to action taken pursuant to paragraph issue oral approval, but a record of 3 of this section, or if such court or such approval will be made and re- other authority orders that the detained in the OGC. NSA personnel shall mand must be complied with notwith- not provide, with or without compensa- standing the final decision of the GC, tion, opinion or expert testimony con- the NSA personnel upon whom the de- cerning official NSA information, sub- mand was made shall notify the GC of jects, or activities, except on behalf of such ruling or order. If the GC deter- the United States or a party rep- mines that no further legal review of or resented by the Department of Justice challenge to the ruling or order will be (DoJ). Upon a showing by the requester sought, the affected NSA personnel of exceptional need or unique cir- shall comply with the demand or order. cumstances and that the anticipated If directed by the GC, however, the af- testimony will not be adverse to the infected NSA personnel must decline to terests of the NSA or the United provide the information.3 The NSA per- States, the GC may, in writing, grant sonnel shall state the following to the special authorization for NSA person- Court: nel to appear and testify at no expense to the United States. Official informa- 3 See United States ex rel. Touhy v. Ragen, tion may be released in litigation only 340 U.S. 462 (1951) wherein the Supreme Court

446 Office of the Secretary of Defense § 93.5

‘‘I must respectfully advise the Court that tion, no other person may accept the under instructions given to me by the Gen- copies of the summons and complaint eral Counsel of the National Security Agen- for NSA or NSA personnel sued or sum- cy, in accordance with Department of De- fense Directive 5405.2 and NSA Regulation moned in their official capacities, in- 10–62, I must respectfully decline to [produce/ cluding the sued or summoned NSA disclose] that information.’’ personnel, without the prior express authorization of the GC. (5) In the event NSA personnel re- (i) Parties who wish to deliver, in- ceive a litigation demand for official stead of sending by registered or cer- information originated by another U.S. tified mail, the copies of the service of Government component, the GC shall process to NSA or to NSA personnel forward the appropriate portions of the sued or summoned in their official ca- request to the other component. The pacities, will comply with the proce- GC shall notify the requester, court, or dures for service of process on NSA other authority of the transfer, unless premises in paragraph (b) of this sec- such notice would itself disclose classi- tion. fied information. (ii) Litigants may attempt to serve (b) Acceptance of service of process. The following are mandatory proce- process upon NSA personnel in their of- dures for accepting service of process ficial capacities at their residences or for NSA personnel sued or summoned other places. Because NSA personnel in their official capacities, and for at- are not authorized to accept such serv- tempting service of process on NSA ice of process, such service is not effec- premises. tive under § 93.1(d). NSA personnel (1) Service on NSA or on NSA personnel should refuse to accept service. How- in their official capacities. § 93.1(d) re- ever, NSA personnel may find it dif- quires service of process on the NSA or ficult to determine whether they are NSA personnel sued or summoned in being sued or summoned in their pri- their official capacity to be made by vate or official capacity. Therefore, serving the United States Attorney for NSA personnel shall notify the OGC as the district in which the action is soon as possible if they receive any brought, and by sending copies of the summons or complaint that appears to summons and complaint by registered relate to actions in connection with or certified mail to the Attorney Gen- their official duties so that the GC can eral of the United States and to the determine the scope of service. NSA or such NSA personnel. Only the (2) Service upon NSA personnel in their GC or an NSA attorney is authorized to individual capacities on NSA premises. accept the copies of the summons and Service of process is not a function of complaint sent to the NSA or NSA per- NSA. An NSA attorney will not accept sonnel pursuant to § 93.1(d). Acceptance service of process for NSA personnel of the copies of the summons and com- sued or summoned in their individual plaint by the GC or an NSA attorney capacities, nor will NSA personnel be does not constitute an admission or required to accept service of process on waiver with respect to the validity of NSA premises. Acceptance of such the service of process or of the jurisdic- service of process in a person’s individ- tion of the court or other body. Such ual capacity is the individual’s respon- copies shall be sent by registered or sibility. NSA does, however, encourage certified mail to: General Counsel, Na- cooperation with the courts and with tional Security Agency, 9800 Savage judicial officials. Road, Fort George G. Meade, MD 20755– (i) When the NSA person works at 6000. The envelope shall be conspicu- NSA Headquarters at Fort George G. ously marked ‘‘Copy of Summons and Meade, Maryland, the process server Complaint Enclosed.’’ Except as pro- should first telephone the OGC on (301) vided in paragraph (b)(3) of this sec- 688–6054, and attempt to schedule a time for the NSA person to accept process. If the NSA person’s affiliation held that a government employee could not be held in contempt for following an agency with NSA is not classified, the NSA at- regulation requiring agency approval before torney will communicate with the NSA producing government information in re- person and serve as the contact point sponse to a court order. for the person and the process server. If

447 § 93.6 32 CFR Ch. I (7–1–97 Edition) the person consents to accept service of advocates, to ensure that service of process, the NSA attorney will arrange process on persons in their individual a convenient time for the process serv- capacities is accomplished in accord- er to come to NSA, and will notify the ance with local law, relevant treaties, Security Duty Officer of the arrange- and Status of Forces Agreements. Such ment. procedures must be approved by the (ii) A process server who arrives at GC. Field Chiefs will designate a point NSA during duty hours without first of contact to conduct liaison with the having contacted the OGC, will be re- OGC. ferred to the Visitor Control Center (4) No individual will confirm or deny (VCC) at Operations Building 2A. The that the person sued or summoned is VCC will contact the OGC. If an NSA affiliated with NSA until a NSA attor- attorney is not available, the process server will be referred to the Security ney or the Field Chief has ascertained Duty Officer, who will act in accord- that the individual’s relationship with ance with Office of Security (M5) pro- NSA is not classified. If the NSA per- cedures approved by the GC. Service of son’s association with NSA is classi- process will not be accepted during fied, service of process will not be ac- non-duty hours unless prior arrange- cepted. In such a case, the GC must be ments have been made by the OGC. For immediately informed. The GC will purposes of this part, duty hours at then contact the DoJ for guidance. NSA Headquarters are 0800 to 1700, (5) Suits in Foreign Courts. If any NSA Monday through Friday, excluding person is sued or summoned in a for- legal holidays. A process server who ar- eign court, that person, or the cog- rives at NSA during non-duty hours nizant Field Chief, will immediately without having made arrangements telefax a copy of the service of process through the OGC to do so will be told to the OGC. Such person will not com- to call the OGC during duty hours to plete any return of service forms unless arrange to serve process. advised otherwise by an NSA attorney. (iii) Upon being notified that a proc- OGC will coordinate with the DoJ to ess server is at the VCC, an NSA attor- determine whether service is effective ney will review the service of process and whether the NSA person is entitled and determine whether the NSA person to be represented at Government ex- is being sued or summoned in his offi- pense pursuant to § 93.1(f). cial or individual capacity. (If the person is being sued or summoned in his § 93.6 Fees. or her official capacity, the NSA attorney will accept service of process by Consistent with the guidelines in noting on the return of service form § 93.1(e), NSA may charge reasonable that ‘‘service is accepted in official ca- fees to parties seeking, by request or pacity only.’’) If the person is being demand, official information not other- sued or summoned in his or her individ- wise available under the Freedom of In- ual capacity, the NSA attorney will formation Act, 5 U.S.C. 552. Such fees contact that person to see if that per- are calculated to reimburse the Gov- son will consent to accept service. ernment for the expense of providing (3) Procedures at field activities. Chiefs such information, and may include: of NSA field activities may accept cop- (a) The costs of time expended by ies of service of process for themselves NSA employees to process and respond or NSA personnel assigned to their to the request or demand; field component who are sued or sum- (b) Attorney time for reviewing the moned in their official capacities. Field request or demand and any information Chiefs or their designees will accept by located in response thereto, and for re- noting on the return of service form lated legal work in connection with the that ‘‘service is accepted in official capacity only.’’ The matter will then im- request or demand; and mediately be referred to the GC. Addi- (c) Expenses generated by materials tionally, Field Chiefs will establish and equipment used to search for, procedures at the field site, including a produce, and copy the responsive infor- provision for liaison with local judge mation.

448 Office of the Secretary of Defense § 94.3

§ 93.7 Responsibilities. PART 94—NATURALIZATION OF (a) The General Counsel. The GC is re- ALIENS SERVING IN THE ARMED sponsible for overseeing NSA compli- FORCES OF THE UNITED STATES ance with § 93.1(a) and this part 93, and AND OF ALIEN SPOUSES AND/OR for consulting with DoJ when appro- ALIEN ADOPTED CHILDREN OF priate. In response to a litigation de- MILITARY AND CIVILIAN PER- mand requesting official information SONNEL ORDERED OVERSEAS or the testimony of NSA personnel as witnesses, the GC will coordinate NSA Sec. action to determine whether official 94.1 Purpose. information may be released and 94.2 Applicability. whether NSA personnel may be inter- 94.3 Definitions. viewed, contacted, or used as wit- 94.4 Policy and procedures. nesses. The GC will determine what, if 94.5 Forms required. any, conditions will be imposed upon AUTHORITY: Sec. 301, 80 Stat. 379; 5 U.S.C. such release, interview, contact, or tes- 301. timony. In most cases, an NSA attor- SOURCE: 35 FR 17540, Nov. 14, 1970, unless ney will be present when NSA person- otherwise noted. nel are interviewed or testify concerning official information. The GC may § 94.1 Purpose. delegate these authorities. This part prescribes uniform proce- (b) The Deputy Director for Plans and dures acceptable to the Immigration Policy (DDPP). The DDPP will assit the and Naturalization Service of the De- GC, upon request, in identifying and partment of Justice, to (a) facilitate coordinating with NSA components the naturalization of aliens who have that have cognizance over official in- served honorably in the Armed Forces formation requested in a litigation de- of the United States and to (b) mili- mand. Additionally, the DDPP will ad- tarily certify alien dependents seeking vise the GC on the classified status of naturalization under the provisions of official information, and, when nec- Immigration and Nationality Act of essary, assist in declassifying, redact- 1952, as amended, sections 319(b) and ing, substituting, or summarizing offi- 323(c) (8 U.S.C. 1430(b) and 1434(c)); and furnishes policy guidance to the Sec- cial information for use in litigation. retaries of the Military Departments The DDPP may require the assistance governing discharge or release from ac- of other Key Component Chiefs. tive duty in the Armed Forces of the (c) Chiefs of Key Components and Field United States of permanent-residence Activities. Chiefs of Key Components aliens who desire to be naturalized as and Field Activities shall ensure that U.S. citizens under the provisions of their personnel are informed of the Act of June 27, 1952, section 328 (66 contents of this part 93, particularly of Stat. 249); 8 U.S.C. 1439. the requirements to consult with the OGC prior to responding to any litiga- § 94.2 Applicability. tion demand, and to inform the OGC The provisions of this part apply to whenever they receive service of proc- the Military Departments. ess that is not clearly in their individual capacities. Field Chiefs will notify § 94.3 Definitions. the OGC of the persons they designate (a) Permanent-residence alien is an under § 93.5(b)(3). alien admitted into the United States (d) The Deputy Director for Administra- under an immigration visa for perma- tion (DDA). Within 60 days of the date nent residence; or an alien, who, after of this part, the DDA shall submit to admission without an immigrant visa, the GC for approval procedures for the has had his status adjusted to that of attempted delivery of service of proc- an alien lawfully admitted for perma- ess during duty hours when an attor- nent residence. ney of the OGC is not available. (b) Armed Forces of the United States denotes collectively all components of

449 § 94.4 32 CFR Ch. I (7–1–97 Edition) the Army, Navy, Air Force, Marine tional/Technical School Enrollment,’’ Corps, and Coast Guard. January 26, 1970. 1 (4) Caution shall be exercised to en- § 94.4 Policy and procedures. sure that an alien’s affiliation with the (a) Naturalization of an alien who has Armed Forces of the United States, served honorably in the Armed Forces of whether on active duty or on inactive the United States at any time. (1) Under duty in a reserve status, is not termi- the provisions of Act of June 27, 1952, nated even for a few days short of the section 328 (66 Stat. 249); 8 U.S.C. 1439, 3-year statutory period, since failure to an alien who has served in the Armed comply with the exact 3-year requirement of Act of June 27, 1952, section 328 Forces of the United States for a pe- (66 Stat. 249); 8 U.S.C. 1439 will auto- riod(s) totaling three (3) years may be matically preclude a favorable deter- naturalized if he: mination by the Immigration and Nat- (i) Has been lawfully admitted to the uralization Service on any petition for United States for permanent residence; naturalization based on an alien’s mili- (ii) Was separated from the military tary service. service under honorable conditions; (5) During a period of hostilities, as (iii) Files a petition while still in the designated by the President of the military service, or within six (6) United States, the expeditious natu- months after the termination of such ralization provisions outlined in para- service; and graph (b) of this section, will take prec- (iv) Can comply in all other respects edence over the foregoing. with the Immigration and Nationality (b) Naturalization of an alien who has Act of 1952, except that (a) no period of served in the Armed Forces of the United residence or specified period of phys- States during a period of hostilities as des- ical presence in the United States or ignated by the President of the United the State in which the petition for nat- States. (1) Under the provisions of Im- uralization is filed is required, and (b) migration and Nationality Act of 1952, residence within the jurisdiction of the as amended, section 329 (8 U.S.C. 1440), court is not required. an alien who serves honorably on ac- (2) The prescribed 3-year period may tive duty in the Armed Forces of the be satisfied by a combination of active United States during the period begin- duty and inactive duty in a reserve sta- ning February 28, 1961, and ending on a tus. date designated by the President, by (3) An alien member desiring to ful- Executive order, as the date of termi- fill naturalization requirements nation of the Vietnam hostilities, or through military service shall not be during any future period which Presi- separated prior to completion of three dent, by Executive order, shall des- (3) full years of active duty unless: ignate as a period in which the Armed (i) His performance or conduct does Forces of the United States are or were not justify retention, in which case he engaged in military operations involv- shall be separated in accordance with ing armed conflict with a hostile for- the provisions of part 41 of this sub- eign force, and who is otherwise eligi- chapter and chapter 47, title 10, United ble, may be naturalized whether or not States Code (Uniform Code of Military he has been lawfully admitted to the Justice), as appropriate; or United States for permanent residence, if the member was inducted, enlisted, (ii) He is to be transferred to inactive or reenlisted in the United States (in- duty in a reserve component in order clusive of Puerto Rico, Guam, Virgin to: Islands, Canal Zone, American Samoa, (a) Complete a reserve obligation or Swains Island). under the provisions of part 50 of this (i) The induction, enlistment, or re- subchapter, or enlistment in the United States or its (b) Attend a recognized institution of learning under the early release pro- 1 gram, as provided in DoD Instruction Filed as part of original. Copies available from the U.S. Naval Publications and Forms 1332.15, ‘‘Early Release of Military En- Center, 5801 Tabor Avenue, Philadelphia, PA. listed Personnel for College or Voca- 19120, Attention: Code 300.

450 Office of the Secretary of Defense § 94.4 stated possessions must actually be in after their honorable discharge from these land areas, in ports, harbors, the Armed Forces of the United States. bays, enclosed sea areas along their (c) If they are stationed at a base in routes, or within a marginal belt of the the continental United States, Alaska, sea extending from the coastline out- Hawaii, Puerto Rico, Guam, or the Vir- ward three (3) geographical miles. gin Islands, they should apply for citi- (ii) Enlistment or reenlistment zenship only if they expect to be sta- aboard a ship on the high seas or in for- tioned at the base for at least 60 days eign waters does not meet the require- following application. Unless the Im- ments of Immigration and Nationality migration and Naturalization Service Act of 1952, as amended, section 329 (8 has at least 60 days in which to com- U.S.C. 1440). In such instances, the pro- plete the case, there is no assurance visions of paragraph (a) of this section that it can be completed before the ap- may apply. plicant is transferred, since the proc- (2) Each Military Department will es- essing procedures outlined below take tablish procedures containing the pro- time and are not entirely within the visions outlined in paragraphs (b)(2) (i) control of the Immigration and Natu- and (ii) of this section. In addition, ralization Service. each qualifying alien shall be advised (1) Every naturalization application of the liberalized naturalization provi- must be processed when received by the sions of the Immigration and National- Immigration and Naturalization Serv- ity Act of 1952, as amended, section 329 ice. Special arrangements have been (8 U.S.C. 1440), i.e., that the usual natu- made to expedite the processing of pe- ralization requirements concerning titions of alien members of the Armed age, residence, physical presence, court Forces. jurisdiction and waiting periods are (2) After processing, the alien appli- not applicable, and will be given appro- cant and two citizen witnesses must personally appear for examination by priate assistance in processing his nat- an officer of the Immigration and Nat- uralization application in consonance uralization Service in connection with with procedures contained in ‘‘Natu- the filing of a petition for naturaliza- ralization Requirements and General tion in court. Information,’’ published by the U.S. (3) Finally, the applicant must ap- Department of Justice (Form N–17). pear in person before the naturaliza- (i) Military basic training and ori- tion court on a date set by the court so entation programs will include advice that he may be admitted to citizenship. and assistance to interested aliens in (d) If the alien member is scheduled completing and submitting the applica- for overseas assignment where natu- tion and other forms required to initi- ralization courts are not available, he ate naturalization proceedings. should apply for naturalization on the (ii) In addition, applicants should be earliest possible date but no later than advised that: 60 days before departure for overseas (a) Under the laws of certain foreign assignment. No assurance that process- countries, military service in the ing will be completed before the appli- Armed Forces of the United States cant’s departure for overseas will be may result in the loss of their native given by the Immigration and Natu- country citizenship but this same serv- ralization Service unless it has 60 days ice may make them eligible for U.S. to complete the matter. citizenship. (1) An alien serviceman who is serv- (b) Their eligibility for naturaliza- ing overseas and has submitted or sub- tion, based upon the honorable service mits the required naturalization appli- in an active duty status prescribed in cation and forms to the Immigration the Immigration and Nationality Act and Naturalization Service may not be of 1952, as amended, section 329 (8 granted ordinary leave, or Rest and Re- U.S.C. 1440) will be retained, even cuperation (R&R) leave (where author- though they apply for naturalization ized in overseas areas) for naturaliza- after their return to the United States tion purposes, unless a written notifi- following the termination or comple- cation from the Immigration and Natu- tion of their overseas assignment, or ralization Service has been received by

451 § 94.5 32 CFR Ch. I (7–1–97 Edition) the serviceman informing him that the (iii) When concurrent travel is not processing of his application has been authorized, DD Form 1278 will be issued completed, and requesting him to ap- after authorization for dependents’ pear with two U.S. citizen witnesses movement is received and not earlier before a representative of the Immigra- than 90 days prior to the dependents’ tion and Naturalization Service at a scheduled date of travel. designated location for the purpose of (2) Upon receipt of DD Form 1278, the completing the naturalization. alien will file this form, together with (2) If possible, an applicant granted the application for petition for natu- leave for such purposes should advise ralization, Immigration and Natu- the Immigration and Naturalization ralization Form N–400 (adult) or N–402 Service when he expects to arrive in (child) as appropriate, if not previously the leave area and, in any event, filed, with the nearest office of the Im- should contact the Immigration and migration and Naturalization Service. Naturalization Service office imme- The application must be accompanied diately upon arrival in the area. Every by: effort will be made to complete the (i) Three identical photographs. naturalization within the leave period. (ii) Form FD–358, Applicant Finger- (c) Naturalization of alien spouses and/ print Card, and or alien adopted children of military and (iii) Form G–325, Biographic Informa- civilian personnel ordered overseas. Alien tion. spouses and/or alien adopted children (3) Further processing of the applica- of military and civilian personnel of tion for citizenship is as prescribed by the Department of Defense who are au- the Immigration and Naturalization thorized to accompany or join their Service. sponsors overseas and who wish to ob- (4) Upon completion of the natu- tain U.S. citizenship prior to departure ralization process, immediate applica- will be given maximum assistance by tion for passport should be made, in commanders of military installations. order that it can be issued prior to (1) DD Form 1278, ‘‘Certificate of scheduled departure of the dependent Overseas Assignment to Support Appli- for overseas. cation to File Petition for Naturaliza- tion,’’ 2 will be issued to alien depend- § 94.5 Forms required. ents by military commanders at the The following forms required for nat- times indicated below in order that the uralization purposes may be obtained alien may file such certificate with the from any office of the Immigration and nearest Immigration and Naturaliza- Naturalization Service: tion Service Office to initiate natu- (a) N–400 Application to File a Peti- ralization proceedings. Only DD Form tion for Naturalization (Adult) (Submit 1278 will be accepted by the Immigra- original form only). tion and Naturalization Service. Mili- (b) N–402 Application to File a Peti- tary commanders will not issue memo- tion for Naturalization (Child) (Submit randa or letters of any kind in lieu original form only). thereof. (c) G–325 Biographic Information (i) When dependents are authorized (Submit original and duplicate of automatic concurrent travel, DD Form multileaf form). 1278 will be issued not earlier than 90 (d) G–325B Biographic Information days prior to the dependents’ schedule (Submit original form only). date of travel. (e) FD–258 Applicant Fingerprint (ii) When advance application for Card (Submit one completed card). concurrent travel is required, DD Form (f) N–426 Certificate of Military or 1278 will be issued after approval is re- Naval Service (Submit in triplicate). ceived and not earlier than 90 days (Should be handled on a priority basis prior to the dependents’ scheduled date so as to avoid prejudicing the early of departure. completion of the naturalization process, particularly for an alien who may 2 Filed as part of original. Copies may be receive an overseas assignment.) obtained from Departments of the Army, (g) ‘‘Naturalization Requirements Navy, and Air Force. and General Information,’’ published

452 Office of the Secretary of Defense § 96.5 by the U.S. Department of Justice and disseminate criminal history (Form N–17) describes the naturaliza- record information. tion requirements and lists Immigra- (c) Special programs. Military Serv- tion and Naturalization offices which ices’ programs that, because of their process applications. sensitivity or access to classified information, require the DIS to perform the PART 96—ACQUISITION AND USE investigations specified in chapter III OF CRIMINAL HISTORY RECORD of DoD 5200.2–R. INFORMATION BY THE MILITARY § 96.4 Policy. SERVICES Section 503 of title 10 U.S. Code requires the Secretaries of the Military Sec. Departments to conduct intensive re- 96.1 Purpose. 96.2 Applicability. cruiting campaigns to obtain enlist- 96.3 Definitions. ments. It is the policy of the Depart- 96.4 Policy. ment of Defense that the Military 96.5 Responsibilities. Services review the background of ap- 96.6 Procedures. plicants for enlistment and for partici- AUTHORITY: 10 U.S.C. 503, 504, 505, and 520a. pation in special programs to identify: (a) Those whose backgrounds pose se- SOURCE: 49 FR 23042, June 4, 1984, unless rious questions as to fitness for service otherwise noted. (10 U.S.C. 504 and 505) or suitability for § 96.1 Purpose. participation in special programs (part 156 of this title). Under title 10 U.S. Code, sections 503, (b) Those who may not be enlisted in 504, 505 and 520a, this part establishes the Military Services unless a waiver is policy guidance concerning the acquisi- granted (section 504 of title 10, United tion of criminal history record infor- States Code). mation for use in determining an en- (c) Those who may try to enlist listment applicant’s suitability for fraudulently. entry and for participation in special programs that require a determination § 96.5 Responsibilities. of trustworthiness (part 156 of this (a) The Assistant Secretary of Defense title), assigns responsibilities, and pre- (Manpower, Installations, and Logistics) scribes procedures. shall submit the implementing Mili- tary Service regulations to the Senate § 96.2 Applicability. and House Committees on Armed Serv- This part applies to the Office of the ices, in accordance with section 520a of Secretary of Defense, the Military De- title 10 U.S. Code. partments, and the Defense Investiga- (b) The Secretaries of the Military De- tive Service (DIS). The term ‘‘Military partments shall develop and prepare Services,’’ as used herein, refers to the uniform implementing regulations con- Army, Navy, Air Force, and Marine cerning acquisition, review, and safe- Corps. guarding of criminal history record information by recruiting elements to § 96.3 Definitions. conform with section 520a of title 10 (a) Criminal history record information U.S. Code, policies stated herein and (with respect to any juvenile or adult shall include in the regulations proce- arrest, citation, or conviction). The of- dures on obtaining and reviewing fense involved; age of the person in- criminal history record information for volved; dates of arrest, citation, or con- recruitment purposes and for assign- viction, if any; place of the alleged of- ment of personnel to special programs. fense; place of arrest and assigned (c) The Director, Defense Investigative court; and disposition of the case. Service, shall ensure that the acquisi- (b) Criminal justice system. State, tion of all available criminal history county, and local government law en- record information, or criminal history forcement agencies; courts and clerks record information provided to the DIS of courts; and other government agen- by other government agencies, is safe- cies authorized to collect, maintain, guarded in accordance with existing

453 § 96.6 32 CFR Ch. I (7–1–97 Edition) laws or DoD regulatory documents to § 97.1 Purpose. ensure protection of the privacy of the This directive establishes policy, as- enlistment applicant on whom the signs responsibilities, and prescribes record exists. procedures for the release of official DoD information in litigation and for § 96.6 Procedures. testimony by DoD personnel as wit- (a) Under section 520a of title 10 U.S. nesses during litigation. Code, recruiters are authorized to request and receive criminal history § 97.2 Applicability and scope. record information from the criminal (a) This directive applies to the Of- justice system. fice of the Secretary of Defense (OSD), (b) The Military Services shall obtain the Military Departments, the Organi- criminal history record information on zation of the Joint Chiefs of Staff enlistment applicants from the crimi- (OJCS), the Unified and Specified Com- nal justice system and from the DIS mands, and the Defense Agencies (here- and shall review this information to after referred to as ‘‘DoD Compo- determine whether applicants are ac- nents’’), and to all personnel of such ceptable for enlistment and for assign- DoD Components. ment to special programs. Recruiters (b) This directive does not apply to shall request such information in each the release of official information or instance by addressing their requests testimony by DoD personnel in the fol- to the criminal justice system not lowing situations: later than 90 days after each applica- (1) Before courts-martial convened by tion for enlistment is made. the authority of the Military Depart- (c) The Military Services shall ensure ments or in administrative proceedings the confidentiality of criminal history conducted by or on behalf of a DoD record information obtained for re- Component; cruiting purposes. Personnel who have (2) Pursuant to administrative pro- access to this information may not dis- ceedings conducted by or on behalf of close it except for the purposes for the Equal Employment Opportunity which obtained (10 U.S.C. 520a). Commission (EEOC) or the Merit Sys- tems Protection Board (MSPB), or pur- (d) The DIS shall provide additional suant to a negotiated grievance proce- background information to the Mili- dure under a collective bargaining tary Services as needed to determine agreement to which the Government is the suitability of applicants for enlist- a party; ment and for participation in special (3) In response to requests by Federal programs. This additional background Government counsel in litigation con- information shall be provided by En- ducted on behalf of the United States; trance National Agency Checks (4) As part of the assistance required (ENTNACs) and other investigations as pursuant to DoD Directive 5220.6, ‘‘In- directed by DoD 5200.2–R. dustrial Personnel Security Clearance Program,’’ December 20 1976; or, PART 97—RELEASE OF OFFICIAL IN- (5) Pursuant to disclosure of informa- FORMATION IN LITIGATION AND tion to Federal, State, and local pros- TESTIMONY BY DoD PERSONNEL ecuting and law enforcement authori- AS WITNESSES ties, in conjunction with an investigation conducted by a DoD criminal in- Sec. vestigative organization. 97.1 Purpose. (c) This Directive does not supersede 97.2 Applicability and scope. or modify existing laws or DoD pro- 97.3 Definitions. gram governing the testimony of DoD 97.4 Policy. personnel or the release of official DoD 97.5 Responsibilities. information during grand jury proceed- 97.6 Procedures. ings, the release of official information not involved in litigation, or the re- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 133. lease of official information pursuant SOURCE: 50 FR 32056, Aug. 8, 1985, unless to the Freedom of Information Act, 5 otherwise noted. U.S.C. 552, or the Privacy Act, 5 U.S.C.

454 Office of the Secretary of Defense § 97.6

552a, nor does this Directive preclude informal requests by attorneys or oth- treating any written request for agen- ers in situations involving litigation. cy records that is not in the nature of (d) Official information. All informa- legal process as a request under the tion of any kind, however stored, that Freedom of Information or Privacy is in the custody and control of the De- Acts. partment of Defense, relates to infor- (d) This Directive is not intended to mation in the custody and control of infringe upon or displace the respon- the Department, or was acquired by sibilities committed to the Department DoD personnel as part of their official of Justice in conducting litigation on duties or because of their official sta- behalf of the United States in appro- tus within the Department while such priate cases. personnel were employed by or on be- (e) This Directive does not preclude half of the Department or on active official comment on matters in litiga- duty with the U.S. Armed Forces. tion in appropriate cases. (f) This Directive is intended only to § 97.4 Policy. provide guidance for the internal oper- It is DoD policy that official informa- ation of the Department of Defense and tion should generally be made reason- is not intended to, does not, and may ably available for use in Federal and not be relied upon to create any right State courts and by other govern- or benefit, substantive or procedural, mental bodies unless the information is enforceable at law against the United classified, privileged, or otherwise pro- States or the Department of Defense. tected from public disclosure.

§ 97.3 Definitions. § 97.5 Responsibilities. (a) Demand. Subpoena, order, or other (a) The General Counsel, Department of demand of a court of competent juris- Defense, shall provide general policy diction, or other specific authority, for and procedural guidance by the issu- the production, disclosure, or release of ance of supplemental instructions or official DoD information or for the ap- specific orders concerning the release pearance and testimony of DoD person- of official DoD information in litiga- nel as witnesses. tion and the testimony of DoD person- (b) DoD personnel. Present and former nel as witnesses during litigation. U.S. military personnel; Service Acad- (b) The Heads of DoD Components emy cadets and midshipmen; and shall issue appropriate regulations to present and former civilian employees implement this Directive and to iden- of any Component of the Department tify official information that is in- of Defense, including nonappropriated volved in litigation. fund activity employees; non-U.S. nationals who perform services overseas, § 97.6 Procedures. under the provisions of status of forces (a) Authority to act. (1) In response to agreements, for the U.S. Armed Forces; a litigation request or demand for offi- and other specific individuals hired cial DoD information or the testimony through contractual agreements by or of DoD personnel as witnesses, the on behalf of the Department of De- General Counsels of DoD, Navy, and fense. the Defense Agencies; the Judge Advo- (c) Litigation. All pretrial, trial, and cates General of the Military Depart- post-trial stages of all existing or rea- ments; and the Chief Legal Advisors to sonably anticipated judicial or admin- the JCS and the Unified and Specified istrative actions, hearings, investiga- Commands, with regard to their respec- tions, or similar proceedings before ci- tive Components, are authorized—after vilian courts, commissions, boards (in- consulting and coordinating with the cluding the Armed Services Board of appropriate Department of Justice liti- Contract Appeals), or other tribunals, gation attorneys, as required—to deter- foreign and domestic. This term in- mine whether official information may cludes responses to discovery requests, be released in litigation; whether DoD depositions, and other pretrial proceed- personnel assigned to or affiliated with ings, as well as responses to formal or the Component may be interviewed,

455 § 97.6 32 CFR Ch. I (7–1–97 Edition) contacted, or used as witnesses con- essary under the relevant substantive cerning official DoD information or as law concerning privilege; expert witnesses; and what, if any, con- (5) Whether the disclosure, except ditions will be imposed upon such re- when in camera and necessary to assert lease, interview, contact, or testimony. a claim of privilege, would reveal infor- Delegation of this authority, to include mation properly classified pursuant to the authority to invoke appropriate DoD 5200.1–R, ‘‘Information Security claims of privilege before any tribunal, Program Regulation,’’ August 1982; un- is permitted. classified technical data withheld from (2) In the event that a DoD Compo- public release pursuant to DoD Direc- nent receives a litigation request or de- tive 5230.25, ‘‘Withholding of Unclassi- mand for official information origi- fied Technical Data from Public Dis- nated by another Component, the re- closure,’’ November 6, 1984; or other ceiving Component shall forward the matters exempt from unrestricted dis- appropriate portions of the request or closure; and, demand to the originating Component (6) Whether disclosure would inter- for action in accordance with this Di- fere with ongoing enforcement proceed- rective. The receiving Component shall ings, compromise constitutional rights, also notify the requestor, court, or reveal the identity of an intelligence other authority of its transfer of the source or confidential informant, dis- request or demand. close trade secrets or similarly con- (3) Notwithstanding the provisions of fidential commercial or financial infor- paragraph (a) (1) and (2) of this section, mation, or otherwise be inappropriate the General Counsel, DoD, in litigation under the circumstances. involving terrorism, espionage, nuclear (c) Decisions on litigation requests and weapons, intelligence means or demands. (1) Subject to paragraph (c)(5) sources, or otherwise as deemed nec- of this section, DoD personnel shall not, in response to a litigation request essary, may notify Components that or demand, produce, disclose, release, General Counsel, DoD, will assume pri- comment upon, or testify concerning mary responsibility for coordinating any official DoD information without all litigation requests and demands for the prior written approval of the appro- official DoD information or testimony priate DoD official designated in of DoD personnel, or both; consulting § 97.6(a). Oral approval may be granted, with the Department of Justice, as re- but a record of such approval will be quired; and taking final action on such made and retained in accordance with requests and demands. the applicable implementing regula- (b) Factors to consider. In deciding tions. whether to authorize the release of of- (2) If official DoD information is ficial DoD information or the testi- sought, through testimony or other- mony of DoD personnel concerning offi- wise, by a litigation request or de- cial information (hereafter referred to mand, the individual seeking such re- as ‘‘the disclosure’’) pursuant to para- lease or testimony must set forth, in graph (a), DoD officials should consider writing and with as much specificity as the following types of factors: possible, the nature and relevance of (1) Whether the request or demand is the official information sought. Sub- unduly burdensome or otherwise inap- ject to paragraph (c)(5), DoD personnel propriate under the applicable court may only produce, disclose, release, rules; comment upon, or testify concerning (2) Whether the disclosure, including those matters that were specified in release in camera, is appropriate under writing and properly approved by the the rules of procedure governing the appropriate DoD official designated in case or matter in which the request or paragraph (a) of this section. See United demand arose; States ex rel. Touhy v. Ragen, 340 U.S. (3) Whether the disclosure would vio- 462 (1951). late a statute, executive order, regula- (3) Whenever a litigation request or tion, or directive; demand is made upon DoD personnel (4) Whether the disclosure, including for official DoD information or for tes- release in camera, is appropriate or nec- timony concerning such information,

456 Office of the Secretary of Defense § 97.6 the personnel upon whom the request (d) Fees. Consistent with the guide- or demand was made shall immediately lines in DoD Instruction 7230.7, ‘‘User notify the appropriate DoD official des- Charges,’’ January 29, 1985, the appro- ignated in § 97.6(a) for the Component priate officials designated in § 97.6(a) to which the individual contacted is or, are authorized to charge reasonable for former personnel, was last assigned. fees, as established by regulation and In appropriate cases, the responsible to the extent not prohibited by law, to DoD official shall thereupon notify the parties seeking, by request or demand, Department of Justice of the request or official DoD information not otherwise demand. After due consultation and co- available under DoD 5400.7–R, ‘‘DoD ordination with the Department of Jus- Freedom of Information Act Program,’’ tice, as required, the DoD official shall March 24, 1980. Such fees, in amounts determine whether the individual is re- calculated to reimburse the govern- quired to comply with the request or ment for the expense of providing such demand and shall notify the requestor information, may include the costs of or the court or other authority of the time expended by DoD employees to determination reached. process and respond to the request or (4) If, after DoD personnel have re- demand; attorney time for reviewing the requst or demand and any informa- ceived a litigation request or demand tion located in response thereto and for and have in turn notified the appro- related legal work in connection with priate DoD official in accordance with the request or demand; and expenses paragraph (c)(3) of this section , a re- generated by materials and equipment sponse to the request or demand is re- used to search for, produce, and copy quired before instructions from the re- the responsive information. See sponsible official are received, the re- Oppenheimer Fund, Inc. v. Sanders, 437 sponsible official designated in para- U.S. 340 (1978). graph (a) shall furnish the requestor or (e) Expert or opinion testimony. DoD the court or other authority with a personnel shall not provide, with or copy of this directive and applicable without compensation, opinion or ex- implementing regulations, inform the pert testimony concerning official DoD requestor or the court or other author- information, subjects, or activities, ex- ity that the request or demand is being cept on behalf of the United States or reviewed, and seek a stay of the re- a party represented by the Department quest or demand pending a final deter- of Justice. Upon a showing by the re- mination by the Component concerned. questor of exceptional need or unique (5) If a court of competent jurisdic- circumstances and that the anticipated tion or other appropriate authority de- testimony will not be adverse to the in- clines to stay the effect of the request terests of the Department of Defense or or demand in response to action taken the United States, the appropriate DoD pursuant to § 97.6(c)(4), or if such court official designated in paragraph (a) of or other authority orders that the re- this section may, in writing, grant spe- quest or demand must be complied cial authorization for DoD personnel to with notwithstanding the final decision appear and testify at no expense to the of the appropriate DoD official, the United States. If, despite the final de- DoD personnel upon whom the request termination of the responsible DoD of- or demand was made shall notify the ficial, a court of competent jurisdic- responsible DoD official of such ruling tion or other appropriate authority, or- or order. If the DoD official determines ders the appearance and expert or opin- that no further legal review of or chal- ion testimony of DoD personnel, the lenge to the court’s order or ruling will personnel shall notify the responsible be sought, the affected DoD personnel DoD official of such order. If the DoD shall comply with the request, demand, official determines that no further or order. If directed by the appropriate legal review of or challenge to the DoD official, however, the affected DoD court’s order will be sought, the af- personnel shall respectfully decline to fected DoD personnel shall comply comply with the demand. See United with the order. If directed by the ap- States ex rel. Touhy v. Ragen, 340 U.S. propriate DoD official, however, the af- 462 (1951). fected DoD personnel shall respectfully

457 § 98.1 32 CFR Ch. I (7–1–97 Edition) decline to comply with the demand. See thority or misuse of resources such as United States ex rel. Touhy v. Ragen, 340 tools, vehicles, or copying machines. U.S. 462 (1951). Examination The act of examining, inspecting, inquiry, and investigation. PART 98—DEFENSE HOTLINE For the purposes of the part, the term PROGRAM applies to audit, inspection, and investigative activity and encompasses the Sec. preliminary analysis, inquiry, audit, 98.1 Purpose. inspection, and investigation. 98.2 Applicability. (a) Audit. An independent, objective 98.3 Definitions. analysis, review, or evaluation of fi- 98.4 Policy. 98.5 Responsibilities. nancial records, procedures, and activi- 98.6 Procedures. ties to report conditions found, and 98.7 Information requirements. recommend changes or other actions 98.8 Effective date and implementation. for management and operating officials APPENDIX A TO PART 98—INSPECTOR GEN- to consider. The term audit includes, in ERAL, DEPARTMENT OF DEFENSE, DEFENSE addition to the auditor’s examinations HOTLINE: RECORD OF CALL of financial statements, work per- APPENDIX B TO PART 98—INSPECTOR GENERAL, formed in reviewing compliance with DEPARTMENT OF DEFENSE, DEFENSE HOT- applicable laws and regulations, econ- LINE: DECISION MEMORANDUM omy and efficiency of operations, and APPENDIX C TO PART 98—DEFENSE HOTLINE PROGRESS REPORT AS OF: (APPLICABLE effectiveness in achieving program re- DATE) sults. All audit work is accomplished APPENDIX D TO PART 98—DEFENSE HOTLINE in accordance with audit standards set COMPLETION REPORT AS OF: (APPLICABLE forth in ‘‘Standards for Audit in Gov- DATE) ernmental Organizations, Programs, AUTHORITY: 5 U.S.C. 301 and 552. Activities, and Functions,’’ issued by the Comptroller General of the United SOURCE: 52 FR 44883, Nov. 23, 1987, unless otherwise noted. States. (b) Inquiry. An informal administra- § 98.1 Purpose. tive investigation or gathering of infor- Under Secretary of Defense memo- mation through interview or interroga- randum dated June 5, 1981 and 32 CFR tion rather than by inspection or study part 373, this part clarifies terminol- of available evidence. An inquiry does ogy, updates responsibilities and spe- not preclude the gathering of available cific requirements to be met in con- documentary evidence. ducting the examination of Defense (c) Inspection. A method of assessing Hotline allegations, and updates man- the efficiency of management, the ef- aging and operating procedures for the fectiveness and economy of operations, Defense Hotline Program. and compliance with laws and directives, with particular emphasis on the § 98.2 Applicability. detection and prevention of fraud and This part applies to the Office of the waste. Secretary of Defense (OSD) and its (d) Investigation. A systematic, field activities; the Military Depart- minute, and thorough attempt to learn ments, including the National Guard the facts about something complex or and Reserve components; the Organiza- hidden. It is often formal and official. tion of the Joint Chiefs of Staff (OJCS); (e) Preliminary Analysis. The activity the Unified and Specified Commands; necessary to determine if the allega- the Inspector General of the Depart- tion or information received warrants ment of Defense (IG, DoD); and the De- further examination, or lacks the fense Agencies (hereafter referred to credibility to merit additional action. collectively as ‘‘DoD Components’’). The preliminary inquiry effort may be limited to interview of the source of § 98.3 Definitions. the complaint and/or a reference pro- Abuse Intentional or improper use of vided in the allegation, or review of Government resources. Examples in- any readily available documentation or clude misuse of rank, position, or au- records relative to the complaint.

458 Office of the Secretary of Defense § 98.5

Fraud Any intentional deception de- focus departmental efforts in support signed to deprive the United States un- of this policy, the Defense Hotline Pro- lawfully of something of value or to se- gram, under the direction and control cure from the United States for an in- of the IG, DoD, shall ensure that alle- dividual a benefit, privilege, allowance, gations of fraud and mismanagement or consideration to which he or she is are properly evaluated; substantive al- not entitled. Such practices include: legations are examined; appropriate making false statements; submitting administrative, remedial, or prose- false claims; using false weights or cutive actions are taken; and systems measures; evading or corrupting in- of records for the control of the De- spectors or other officials; deceit either fense Hotline are established and main- by suppressing the truth or misrepre- tained. senting material fact; adulterating or (b) All DoD Component hotlines shall substituting materials; falsifying comply with the guidelines prescribed records and books of accounts; arrang- by this part. ing for secret profits, kickbacks, or commissions; and conspiring to use any § 98.5 Responsibilities. of these devices. The term also in- (a) The Inspector General, Depart- cludes conflict of interest cases, crimi- ment of Defense, as the principal advi- nal irregularities, and the unauthor- sor to the Secretary of Defense on all ized disclosure of official information matters relating to the prevention and relating to procurement and disposal detection of fraud and mismanage- matters. ment, shall: Independence The state or quality of (1) Oversee the development of the being free from subjection or from the Defense Hotline Program. influence, control, or guidance of individuals, things, or situations. As ap- (2) Provide guidance to DoD Compo- plied to examining officials and their nents for implementing DoD policies. respective organizations, there is a re- (3) Direct, manage, and control the sponsibility for maintaining neutrality operation of the Defense Hotline Pro- and exercising objectivity so that opin- gram. ions, judgments, conclusions, and rec- (4) Establish procedures to ensure ommendations on examined allegations that full and proper consideration is are impartial and shall be viewed as given to all cases of alleged fraud and impartial by disinterested third par- mismanagement in the Department of ties. Defense that are reported through the Mismanagement A collective term Defense Hotline Program. covering acts of waste and abuse. Ex- (5) Ensure that audits, inspections, travagant, careless, or needless expend- and investigations initiated as an inte- iture of Government funds or the con- gral part of the Defense Hotline Pro- sumption or misuse of Government gram are conducted under applicable property or resources, resulting from laws, including the Uniform Code of deficient practices, systems, controls, Military Justice, court decisions, and or decisions. Abuse of authority or DoD regulatory documents and poli- similar actions that do not involve cies. criminal fraud. (6) Conduct periodic quality assur- Waste The extravagant, careless, or ance reviews of the DoD Component needless expenditure of Government field investigative files to ensure that funds, or the consumption of Govern- investigations of the Hotline allega- ment property that results from defi- tions have been handled properly and cient practices, systems, controls, or that the findings and conclusions of decisions. The term also includes im- the examiners are fully supported by proper practices not involving pros- the documentation contained in the of- ecutable fraud. ficial files. (7) Periodically review and evaluate § 98.4 Policy. the operations of the Defense Hotline (a) It is DoD policy to combat fraud Program. and mismanagement in DoD programs (8) Establish a Defense Hotline Advi- and operations. To strengthen and sory Group to:

459 § 98.5 32 CFR Ch. I (7–1–97 Edition)

(i) Review Defense Hotline allega- personal interviews) that are received tions that have been referred in accord- by the Defense Hotline. ance with paragraph (b)(6) of this sec- (2) Establish controls to provide max- tion and provide appropriate processing imum protection for the identity of all and referral instructions to the staff. persons using the Defense Hotline. (ii) Review, upon request of the De- (3) Establish and maintain the re- fense Hotline staff, selected audit, in- quired procedural controls, files, and spection, and investigative Defense records necessary for tracking the alle- Hotline completion reports. Weak- gations from receipt through the nesses and deficiencies identified by phases of examination, closeout, and the examinations shall be referred to storage. the IG, DoD, for appropriate action and (4) Obtain from the complainant the resolution. specific information necessary to as- (iii) Review, or cause to be reviewed certain the substance of each allega- on an annual basis, those complaints tion and complete a Defense Hotline that were received by the Defense Hot- Record of Call (Appendix A) to record line staff and determined to be matters and document those allegations deter- that did not warrant examination due mined to have sufficient merit to war- to insufficient information, age of the rant referral to the appropriate DoD allegation, nature of the complaint Component for action or as informa- (i.e., personal grievance, suggestions, tion matters. etc.), or because of the nonspecific na- (5) Advise the IG, DoD, or Deputy IG, ture of the allegation. The group shall also provide guidance to the staff based DoD, of serious allegations or signifi- on the results of the review, as nec- cant trends disclosed while operating essary. the Defense Hotline. (9) Direct that the applicable IG, (6) Prepare a Defense Hotline Deci- DoD, element conduct an audit, inspec- sion Memorandum (Appendix B) for tion, or investigation of any allegation each valid letter allegation received, where it is determined that conduct of and indicate on the memorandum to the inquiry by the involved agency or which DoD Component the allegation organization might result in a lack or is to be referred for either action or in- perceived lack of objectivity or inde- formation purposes. The memorandum pendence on the part of the examining shall be a means for tracking and officials. Coordination with the heads maintaining control of the complaint. of the concerned DoD Components may The staff shall also provide any com- be done before conducting the exam- ments and guidance considered perti- ination, if such action is considered ap- nent to the conduct of the examina- propriate. tion. (10) Ensure that any allegation made (7) Refer items preliminarily deter- against a staff member of the IG, DoD, mined to be sensitive, controversial, or the Defense Hotline, or DoD personnel involving flag or general officers or involved in conducting the audit, in- DoD civilian officials of GS/GM–15 spection, or investigative activity is equivalent or higher grades to the De- examined in an impartial, independent, fense Hotline Advisory Group for re- and objective manner. view and determination by the examin- (b) The Inspector General shall se- ing agency. Refer all other allegations lect, from nominees provided by the directly to the DoD Component con- Assistant Inspectors General, the nec- cerned. essary professional and administrative (8) Coordinate with the General Ac- personnel to staff the Defense Hotline. counting Office (GAO) Hotline on De- The staff shall: fense Hotline Program-related matters. (1) Operate the Defense Hotline, re- They shall also process all DoD-related cording the pertinent information of allegations that are received from the those allegations received by tele- GAO Hotline in the same manner as phone, mail, or other means of commu- Defense Hotline Program allegations, nication that appear to merit examina- and advise the Defense Hotline Advi- tion; and maintain statistical data on sory Group of any problems encoun- all contacts (letters, telephone calls, tered in performing this function.

460 Office of the Secretary of Defense § 98.5

(9) Promptly process and refer to the ance with the appropriate DoD admin- appropriate DoD Component those alle- istrative Directives and Instructions. gations that warrant inquiry, and expe- (17) Develop and implement a follow- dite the processing and referral of up system to ensure that recommended those allegations that are time-sen- administrative or judicial corrective sitive. The referral of time-sensitive al- measures, tendered by the examining legations by telephone is permitted officials, have been implemented by when any delay might adversely affect the responsible authorities. The system the efforts of the examining officials. should reflect the results of criminal (10) Review and analyze all interim prosecutions, sentences imposed, mon- and final reports of examination to en- etary recoveries, and administrative sure that all aspects of the Defense and other actions taken. When it has Hotline complaint were addressed been determined that such corrective fully, the examinations were conducted action has not been taken by the prop- properly, and appropriate corrective or er authorities, the staff should initiate punitive measures were taken based on action to bring the matter to the at- the examination findings. tention of the next higher command or- (11) Notify the appropriate DoD Com- ganization. ponent Hotline coordinator, by written (18) Inform Defense Hotline agency memorandum, of discrepancies noted and organization Hotline coordinators in individual reports or apparent defi- of substantive allegations passed di- ciencies in the related examination, so rectly to the IG, DoD, for action, if ap- that the DoD Component may review propriate. and, if necessary, reconduct an audit, (19) Maintain liaison and communica- inspection, or investigation of the com- tion with DoD Component Hotline co- plaint and submit a revised or cor- ordinators, other Government Agencies rected closing report. and organizations, and external inves- (12) Notify the Defense Hotline Advi- tigative agencies. sory Group of any significant instance when a report of completed examina- (20) Prepare periodic summary analy- tion indicates that the work performed ses of all Defense Hotline operations, did not meet prescribed audit, inspec- including regular reports to the IG, tion, or investigative standards, or was DoD, for each 6-month period ending on defective in depth, scope, independ- March 31 and September 30, and to the ence, or some other respect, or any in- Deputy Inspector General for Program stance when examination verifies the Planning, Review and Management for complaint of wrongdoing and the DoD use in the DoD, Office of the Inspector Component declines to initiate correc- General ‘‘Semiannual Report to the tive or punitive measures. Congress.’’ Include in the semiannual (13) Evaluate all allegations of crimi- report an accounting for all allegations nal activity that involve the OSD, the received by the Defense Hotline office OJCS, or DoD Components and, when from all sources, and prepare them in warranted, initiate investigation. Con- accordance with the format required by duct investigations of any other allega- DoD, Office of the Inspector General, tions, as directed by the IG, DoD. ‘‘Semiannual Report to the Congress.’’ (14) Investigate or participate in the (21) Maintain the widest dissemina- investigation of Defense Hotline alle- tion of information concerning the De- gations of criminal activity that in- fense Hotline Program by using such volve more than one DoD Component mechanisms as news releases, items in or involve other special circumstances. internal publications (including tele- (15) Ensure that professionalism and phone directories), official notices, organizational independence are ob- posters, and other media. Develop edu- served at all times and that investiga- cational material for use in encourag- tions of allegations are conducted im- ing DoD employees to report fraud and partially and objectively. mismanagement in DoD programs and (16) Retain all Defense Hotline Pro- operations. gram case files for at least 2 years after (c) Heads of DoD Components shall es- the Defense Hotline staff has closed the tablish and implement policies to en- inquiry, then retire the files in accord- sure that the Defense Hotline Program

461 § 98.5 32 CFR Ch. I (7–1–97 Edition) is fully effective. To achieve that aim, the Hotline for action. The report shall they shall: conform with the format prescribed in (1) Establish a single coordinator to the Defense Hotline Completion Report manage, monitor, and report to the De- (Appendix D). When an examination fense Hotline the actions of audit, in- cannot be completed in 90 days, submit spection, and investigative groups on a Defense Hotline Progress Report (Ap- allegations referred by the Defense pendix C) to the Defense Hotline stat- Hotline to the DoD Component for ac- ing the reason for the delay and the ex- tion. pected date of submission of the final (2) Establish and implement oper- report. ational procedures in accordance with (viii) Submit to the Defense Hotline the guidance in § 98.6. a Defense Hotline Progress Report on (3) Have cognizant audit, inspection, and investigative organizations exam- each open case on the 6-month anniver- ine Defense Hotline complaints. The sary date of the beginning of the inves- audit, inspection, and investigative or- tigation, using the format in Appendix ganizations shall: C. (i) Audit, inspect, or investigate De- (ix) Submit progress reports to the fense Hotline referrals in accordance Defense Hotline on the status of all with DoD standards and procedures, audit actions or criminal investiga- and under the implementing guidance tions that have been open 6 months or of the concerned agency or organiza- more as of March 31 and September 30 tion. Examination of Defense Hotline to facilitate semiannual reporting allegations by the Military Depart- under Pub. L. 95–452. Submit the cited ments shall be conducted using the reg- status information 15 calendar days be- ulatory procedures of the concerned fore the end of the 6-month period. Service element. (x) Provide information or docu- (ii) Maintain appropriate records to mentation on pending or closed exami- ensure accountability of all Defense nations to the IG, DoD. Hotline referrals until final disposition (xi) Ensure that documentation con- of the case. tained in the official examination file (iii) Establish the administrative and fully supports the findings and conclu- operational controls and procedures sions reflected in the Defense Hotline necessary to provide maximum protection for the identity of any Defense Completion Report. As a minimum, the Hotline Program source who requests file shall contain a copy of the Hotline anonymity or confidentiality. Completion Report and a memorandum (iv) Ensure that professionalism and that reflects the actions taken by the organizational independence are ob- examining official to determine the served and that audits, inspections, findings, complete identity of all wit- and investigations are conducted in an nesses, the date and information relat- impartial and objective manner. ed during the interview, and specific (v) Promptly process all allegations details and location of all documents that have been referred by the Defense reviewed. The extent of the file docu- Hotline for action and expedite the ex- mentation shall be dictated by the type amination of allegations that are time- of examination conducted. sensitive. (xii) Retain all working papers and (vi) Process and examine all allega- files for 2 years from the date the mat- tions that have been referred as ‘‘infor- ter was formally closed by the Defense mation’’ matters to determine if an in- Hotline. At the end of the 2-year pe- quiry is warranted. Report any action riod, retire the files in accordance with taken as the result of the referral as the pertinent administrative proce- outlined in paragraph (c)(3)(vii) of this dures of the DoD Component. section. (4) Cooperate with the auditors, in- (vii) Submit a final report of the results of the inquiry through the Com- spectors, and investigators by granting ponent Hotline coordinator to the De- immediate and unrestricted access—ex- fense Hotline within 90 days from the cept as is provided for by section F. of date the complaint was transmitted by

462 Office of the Secretary of Defense § 98.7

DoD Directive 5106.1 1—to personnel, Hotline so that the Defense Hotline documents, and records; and provide staff can recontact the source if addi- suitable working facilities and ar- tional information is needed. rangements. (c) All substantive allegations re- (5) Ensure, under reporting require- ceived by the Defense Hotline shall be ments outlined in paragraphs (c)(3) examined. The examination shall nor- (vii), (viii), and (ix) that reports are mally be conducted by disinterested promptly submitted to the referring and qualified auditors, inspectors, or audit, inspection, or investigative or- investigators. When necessary, DoD ganization. Also, completion reports Components may use individuals or should reflect administrative, correc- groups with other professional or tech- tive, punitive, or other type action nical skills to assist in conducting ex- taken on cases referred to them for resolution. aminations under the direct super- (6) Maintain an active Defense Hot- vision of the responsible audit, inspec- line publicity campaign, using local tion, or investigative officials. newspapers, official notices, posters, (d) The procedures used must ensure telephone directories, and other media. that due professional care and organi- Implement education programs to en- zational independence are observed, courage employees to identify and re- and that examinations are impartial port fraud and mismanagement in DoD and objective. Allegations must be ex- programs and operations. amined by officials independent of the specific unit, office, staff element, op- § 98.6 Procedures. eration, etc., in which the complaint is (a) Methods for processing and con- alleged to have occurred. trolling the receipt, examination, and (e) DoD Components shall encourage reporting of all allegations referred to personnel to register complaints and DoD Components for audit, inspection, grievances through appropriate man- and investigation through the Defense agement and grievance channels, and Hotline Program are addressed in this submit suggestions for management section and § 98.5 and include proce- improvements through the proper DoD dures to track, monitor, and follow up Incentive Awards Program. There shall on allegations referred to the Defense be no requirement for any individual Hotline, regardless of source. Sources who makes complaints or provides in- of allegations include The White formation to the IG, DoD, Defense Hot- House, Members of Congress, the GAO line representatives to discuss such Hotline, Office of Management and Budget (OMB), other executive agency complaints or information with the in- hotlines, DoD staff activities, and indi- dividual’s supervisor or the head of the viduals communicating directly with activity. DoD Components shall en- the IG, DoD. courage the reporting of suspected (b) Necessary controls shall be estab- fraud and mismanagement to the De- lished to provide maximum protection fense Hotline either through the toll- for the identity of users of the Defense free 800–424–9098 commercial, FTS 202– Hotline. Individuals shall be ensured 693–5080, or AUTOVON 223–5080 tele- that they can report instances of fraud phone system or by mail to the Defense and mismanagement without fear of re- Hotline, The Pentagon, Washington, prisal or unauthorized disclosure of DC 20301–1900. identity, as provided in Pub. L. 95–452 and DoD Instruction 7050.3.2 However, § 98.7 Information requirements. individuals reporting alleged fraud and The reporting requirements in § 98.5 mismanagement should be encouraged are exempt from formal approval and to identify themselves to the Defense licensing under subsection VII.F. of enclosure 3 to DoD Directive 5000.19. 3 1 Copies may be obtained, if needed, from the U.S. Naval Publications and Forms Cen- ter, 5801 Tabor Avenue, ATTN: Code 1052, Philadelphia PA 19120. 2 See footnote 1 to § 98.5(c)(4). 3 See footnote 1 to § 98.5(c)(4).

463 § 98.8 32 CFR Ch. I (7–1–97 Edition)

§ 98.8 Effective date and implementa- ward two copies of implementing docu- tion. ments to the Inspector General, De- This part is effective March 20, 1987. partment of Defense, within 60 days. This part is the implementing guidance The Military Departments shall for- for all other DoD Components.

464 Office of the Secretary of Defense Pt. 98, App. A

465 Pt. 98, App. A 32 CFR Ch. I (7–1–97 Edition)

466 Office of the Secretary of Defense Pt. 98, App. B

467 Pt. 98, App. C 32 CFR Ch. I (7–1–97 Edition)

468 Office of the Secretary of Defense Pt. 98, App. D

469 § 99.1 32 CFR Ch. I (7–1–97 Edition)

PART 99—PROCEDURES FOR STATES Criminal history record information: in- AND LOCALITIES TO REQUEST IN- formation collected by criminal justice DEMNIFICATION agencies on individuals consisting of identifiable descriptions and notations of arrests, indictments, information, or Sec. 99.1 Scope and purpose. other formal criminal charges and any 99.3 General definitions. disposition arising therefrom, sentenc- 99.5 Eligibility for indemnification. ing, correction supervision, and re- 99.7 Procedures for requesting an indem- lease. The term does not include iden- nification agreement. tification information such as finger- 99.9 Terms of indemnification. print records to the extent that such APPENDIX TO PART 99—ADDRESSES OF REL- information does not indicate involve- EVANT U.S. GOVERNMENT AGENCIES ment of the individual in the criminal justice system. The term does not in- AUTHORITY: Access to Criminal History clude those records of a State or local- Records for National Security Purposes, of The Intelligence Authorization Act for Fis- ity sealed pursuant to law from access cal Year 1986, Pub. L. No. 99–169, secs. 801–803, by State and local criminal justice 99 Stat. 1002, 1008–1011 (1985) (codified in part agencies of that State or locality. at 5 U.S.C. 9101). Criminal justice agency: Federal, SOURCE: 51 FR 42555, Nov. 25, 1986, unless State, and local agencies including (a) otherwise noted. courts, or (b) a government agency or any subunit thereof which performs the § 99.1 Scope and purpose. administration of criminal justice pur- (a) The Department of Defense (DoD), suant to a statute or executive order, Office of Personnel Management and which allocates a substantial part (OPM), or Central Intelligence Agency of its annual budget to the administra- (CIA) has the right to criminal history tion of criminal justice. information of States and local crimi- Department of Defense: the Defense In- nal justice agencies in order to deter- vestigative Service, National Security mine whether a person may: Agency, Naval Investigative Service, (1) Be eligible for access to classified Air Force Office of Special Investiga- information; tions, and Army Intelligence and Secu- (2) Be assigned to sensitive national rity Command. security duties; or Federal agency: the Department of (3) Continue to be assigned to na- Defense, the Office of Personnel Man- tional security duties. agement, or the Central Intelligence (b) This part sets out the conditions Agency, or any other Federal agency under which the DoD, OPM, or CIA subsequently authorized by Congress to may sign an agreement to indemnify obtain access to criminal history and hold harmless a State or locality records information. against claims for damages, costs, and Locality: any local government au- other monetary loss caused by disclo- thority or agency or component there- sure or use of criminal history record of within a State having jurisdiction information by one of these agencies. over matters at a county, municipal or (c) The procedures set forth in this other local government level. part do not apply to situations where a State: any of the several States, the Federal agency seeks access to the District of Columbia, the Common- criminal history records of another wealth of Puerto Rico, the Northern Federal agency. Mariana Islands, Guam, the Virgin Is- (d) By law these provisions imple- lands, American Samoa, the Trust Ter- menting 5 U.S.C. 9101 (b)(3) shall expire ritory of Pacific Islands, and any other December 4, 1988, unless the duration of territory or possession of the United said section is extended or limited by States. Congress. § 99.5 Eligibility for indemnification. § 99.3 General definitions. As provided for under 5 U.S.C. For the purposes of §§ 99.1 through 9101(b)(3), a State or locality may re- 99.9 of this part: quest an indemnification agreement.

470 Office of the Secretary of Defense Pt. 99, App.

(a) To be eligible for an indemnifica- (2) The indemnification agreement tion agreement a State or locality will not extend to any act or omission must have had a law in effect on De- prior to the transmittal of the criminal cember 4, 1985 that prohibited or had history record information to the Fed- the effect of prohibiting the disclosure eral agency. of criminal history record information (3) The indemnification agreement to the DoD, OPM, or CIA. will not extend to any negligent acts (b) A State or locality is also eligible on the part of the State or locality in for an indemnification agreement if it compiling, transcribing or failing to meets the conditions of paragraph (a) delete or purge any of the information of this section, but nevertheless pro- transmitted. vided criminal history record informa- (c) Consent and access requirements: tion to the DoD, OPM, or CIA on or be- (1) The Federal agency when request- fore December 4, 1985. ing criminal history record information from the State or locality for the § 99.7 Procedures for requesting an in- release of such information will attest demnification agreement. that it has obtained the written con- When requesting an indemnification sent of the individual under investiga- agreement, the State or locality must tion after advising him or her of the notify each Federal agency as appro- purposes for which that information is priate, at the address listed in the ap- intended to be used. pendix to this part, of its eligibility of (2) The Federal agency will attest an indemnification agreement. It must that it has advised that individual of also: the right to access that information. (a) Certify that on December 4, 1985, (d) Purpose requirements: The Federal the State or locality had in effect a law agency will use the criminal history which prohibited or had the effect of record information only for the pur- prohibiting the disclosure of criminal poses stated in § 910.101(a). history record information to the DoD, (e) Notice, litigation and settlement pro- OPM, or CIA; and cedures: (1) The State or locality must (b) Append to the request for an in- give notice of any claim against it on demnification agreement a copy of or before the 10th day after the day on such law. which claim against it is received, or it has notice of such a claim. § 99.9 Terms of indemnification. (2) The notice must be given to the Attorney General and to the U.S. At- The terms of the Uniform Federal torney of the district embracing the Agency Indemnification Agreement place wherein the claim is made. (UFAIA), must conform to the follow- (3) The Attorney General shall make ing provisions: all determinations regarding the set- (a) Eligibility: The State or locality tlement or defense of such claims. must certify that its law prohibits or has the effect of prohibiting the disclo- APPENDIX TO PART 99—ADDRESSES OF sure of criminal history record infor- RELEVANT U.S. GOVERNMENT AGENCIES mation to the DoD, OPM, or CIA for the purposes described in section Department of Defense, Office of the General 910.101(a) and that such law was in ef- Counsel, Room 3E988, Washington, DC 20301–1600 fect on December 4, 1985. Office of Personnel Management, Office of (b) Liability: (1) The Federal agency Federal Investigations, P.O. Box 886, Wash- agrees to indemnify and hold harmless ington, DC 20044 the State or locality from any claim Central Intelligence Agency, Attention: Of- for damages, costs and other monetary fice of General Counsel, Washington, DC loss arising from the disclosure or neg- 20505 ligent use by the DoD, OPM, or CIA of criminal history record information PART 100—UNSATISFACTORY PER- obtained from that State or locality FORMANCE OF READY RESERVE pursuant to 5 U.S.C. 9101(b). The in- OBLIGATION demnification will include the officers, employees, and agents of the State or Sec. locality. 100.1 Reissuance and purpose.

471 § 100.1 32 CFR Ch. I (7–1–97 Edition)

100.2 Applicability. § 100.5 Procedures. 100.3 Policy. 100.4 Responsibility. (a) Unsatisfactory participation in the 100.5 Procedures. Ready Reserve. (1) Members of the Se- 100.6 Definitions. lected Reserve who have not fulfilled their statutory military service obliga- ENCLOSURE—SUGGESTED FORMAT, AFFIDAVIT tion under 10 U.S.C. 651 and whose par- OF SERVICE BY MAIL ticipation has not been satisfactory AUTHORITY: 10 U.S.C. 510, 511, 593, 597, or may be: 651, and 32 U.S.C. 302. (i) Ordered to active duty, if they SOURCE: 44 FR 51568, Sept. 4, 1979, unless have not served on active duty or active otherwise noted. duty for training for a total period of 24 months, for such period of time as may § 100.1 Reissuance and purpose. be deemed necessary by the Secretary This part is reissued to update DoD of the Military Department concerned policy on actions to be taken in regard under the provisions of 10 U.S.C. 673a to members of the Ready Reserve (such individuals may be required to whose performance of duty or partici- serve on active duty until their total service on active duty or active duty pation in Reserve training is unsatis- for training equals 24 months); or factory; and provides greater flexibil- (ii) Ordered to active duty for train- ity to the Military Departments when ing, regardless of the length of prior ac- dealing with unsatisfactory perform- tive duty or active duty for training, for ance. a period of not more than 45 days under provisions of 10 U.S.C. 270; or § 100.2 Applicability. (iii) Transferred to the Individual The provisions of this part apply to Ready Reserve (IRR) for the balance of the Office of the Secretary of Defense their statutory military service obliga- and the Military Departments. tion with a tentative characterization of service, normally under other than § 100.3 Policy. honorable conditions, when the Mili- Persons who are enlisted or ap- tary Department concerned has deter- pointed in, or transferred to a Reserve mined that the individuals still pos- component of the Armed Forces of the sesses the potential for useful service United States, under the provisions of under conditions of full mobilization; 10 U.S.C. 510, 511, 593, 597, or 651 and 32 or U.S.C. 302 are expected to participate (iv) Discharged for unsatisfactory and perform satisfactorily as members participation under the provisions of 32 of the Ready Reserve to fulfill their ob- CFR part 41, when the Military Depart- ligation or service agreement. This pol- ment concerned has determined that icy is also in accordance with the the individual has no potential for use- standards prescribed by 32 CFR parts ful service under conditions of full mo- 102 and 101 and the Military Depart- bilization. ments concerned. (2) Members of the Selected Reserve who have fulfilled their statutory mili- § 100.4 Responsibility. tary service obligation under 10 U.S.C. 651 or who did not incur such obliga- The Secretaries of the Military De- tion,2 and whose participation has not partments shall ensure that: been satisfactory may be: (a) Ready Reserve applicants under- (i) Transferred to the IRR for the bal- stand their obligations for satisfactory ance of their current enlistment con- participation in the Ready Reserve be- tract or service agreement with a ten- fore their enlistment or appointment. tative characterization of service, nor- (b) Members of the Ready Reserve mally under other than honorable con- continue to understand their obliga- ditions, when the Military Department tions for satisfactory participation in the Ready Reserve after their enlist- 2 This includes women whose current en- ment or appointment in accordance listment or appointment was effected before with 32 CFR part 44. February 1, 1978.

472 Office of the Secretary of Defense § 100.5 concerned has determined that the in- required by 10 U.S.C. 1163 to consider dividual still has a potential for useful the circumstances and recommend ap- service under conditions of full mobili- propriate action. When an individual is zation; or retained as a result of an approved (ii) Discharged for unsatisfactory board action, no further board action performance under 32 CFR part 41 when shall be required before discharge if the the Military Department concerned has individual fails to take affirmative ac- determined that the individual has no tion in an effort to upgrade the ten- further potential for useful service tative characterization of service. under conditions of full mobilization. (7) Individuals assigned to the Se- (3) When a member of the Selected lected Reserve who are ordered to ac- Reserve is identified as an unsatisfac- tive duty under 10 U.S.C. 673a or to ac- tory participant and considered a pos- tive duty for training under the provi- sible candidate for involuntary transfer sions of 10 U.S.C. 270 may be returned to the IRR or for discharge, a board of to their previous unit of assignment or officers shall be convened, as required transferred to the IRR upon the com- by 10 U.S.C. 1163 to consider the cir- pletion of the active duty or active cumstances and recommend appro- duty for training. When necessary, the priate action. individual’s term of enlistment or serv- (4) When an individual is transferred ice agreement may be extended to per- to the IRR as a result of an approved mit completion of the designated pe- board recommendation, no further riod of active duty or active duty for board action shall be required before training in accordance with 10 U.S.C. discharge if the individual fails to take 270(b) and 673(b). affirmative action in an effort to upgrade the tentative characterization of (8) Individuals who are transferred or service. assigned to the IRR who have a ten- (5) Members of the IRR who have not tative characterization of service of fulfilled their statutory military serv- less than honorable because of unsatis- ice obligation under 10 U.S.C. 651 were factory participation in the Ready Re- enlisted or appointed under any pro- serve shall be discharged at the end of gram that provided that the obligation their statutory military service obliga- could be fulfilled by service in the IRR tion or their period of enlistment or only, and whose participation in such a service agreement, whichever is later program has not been satisfactory may with such characterization unless the be: individuals have taken affirmative ac- (i) Retained in the IRR for the duration to upgrade the tentative charac- tion of their statutory military service terization of service. Affirmative ac- obligation with a tentative character- tions may include, but are not limited ization of service, normally under to, rejoining a unit of the Selected Re- other than honorable conditions, when serve and participating satisfactorily the Military Department concerned has for a period of 12 months, or volunteer- determined that the individual still ing for and completing a tour of active possesses the potential for useful serv- duty for training of not less than 45 ice under conditions of full mobiliza- days. When necessary, the individual’s tion; or term of enlistment or service agree- (ii) Discharged for unsatisfactory ment may be extended to complete the performance under 32 CFR part 41, affirmative action and qualify for a when the Military Department con- more favorable characterization of cerned has determined that the individ- service. ual has no potential for useful service (9) When members of the Selected Re- under conditions of full mobilization. serve are ordered to active duty, active (6) When a member of the IRR, whose duty for training, or transferred to the enlistment or appointment provided IRR because of unsatisfactory partici- that the service concerned could be pation, copies of their orders should be performed entirely in the IRR (as op- furnished to the individuals through posed to the Selected Reserve), is iden- personal contact by a member of the tified as an unsatisfactory participant, command and a written acknowledg- a board of officers shall be convened as ment of receipt obtained. When such

473 § 100.5 32 CFR Ch. I (7–1–97 Edition) efforts are unsuccessful, the orders treme community or personal hardship shall be mailed to the individual. may, upon their request, be transferred (i) Orders mailed to such members to the Standby Reserve, the Retired shall be sent by Certified Mail (Return Reserve, or discharged, as appropriate, Receipt Requested), and a Receipt for in accordance with 10 U.S.C. 673a(c) and Certified Mail (PS Form 3800) obtained. part 44 of this title. In addition, the individual who mails (b) Exceptions. As exceptions to the the orders shall prepare a Sworn Affi- criteria in paragraph (a) of this sec- davit of Service by Mail (format at en- tion, members of the Ready Reserve closure) that shall be inserted, to- who do not or are unable to participate gether with the PS Form 3800, in the for any of the following reasons shall member’s personnel file. be processed as indicated: (ii) Notification shall be made (1) Members of the Selected Reserve through the mailing of orders to the who are unable to participate in a unit member’s most recent mailing address. of the Selected Reserve by reason of an (iii) Provided the orders were prop- action taken by the Military Depart- erly mailed to the most recent address ment concerned, such as unit inactiva- furnished by the member, absence of tion or relocation, to the effect that proof of delivery does not change the they now reside beyond a reasonable fact that the member was properly or- commuting distance (as defined in dered to report for active duty, active § 100.6(e)) of a Reserve unit, shall be as- duty for training, or transferred to the signed to the IRR until they are able to IRR, as appropriate. join or be assigned to another unit, or (iv) Individuals ordered to active complete their statutory military serv- duty who fail to report shall have their ice obligation. names entered into the National Crime (2) Members of the Selected Reserve Information Center of the Federal Bu- who change their residence: reau of Investigation within 30 days (i) May lose their unit position. How- following their reporting date and ap- ever, they will be transferred to an- propriate screening by the Deserter In- other paid-drill unit with the same Re- formation Point concerned. serve component if possible or be given (10) Orders affecting members of the 90 days after departing from their IRR that involve active duty for train- original unit to locate and join another ing required by the terms of their en- unit. At the new unit, they will fill an listment or service agreement may be existing vacancy or be assigned as a handled by mail in the manner pre- temporary overstrength within the scribed in paragraph (a)(9)(i) of this congressionally authorized standard- section. years (defined in § 100.6(f)) or funds (11) Each member of the IRR must under paragraph (b)(2)(iii) (A) and (B) keep the organization of assignment of this section. informed of: (ii) May locate position vacancies (i) His/her accurate and current mail- that require different specialties than ing address; the ones they now possess. Therefore, (ii) Any change of address, marital the Secretary of the Military Depart- status, number of dependents, and ci- ment concerned may provide for the re- vilian employment; and taining of these individuals (with their (iii) Any change in physical condition consent) by ordering them to active that would prevent the member from duty for training to acquire the nec- meeting the physical or mental stand- essary specialties. ards prescribed by 10 U.S.C. 652 and (iii) Must be accepted in a Reserve part 44 of this title. unit by their parent Military Depart- (12) Individuals involuntarily ordered ment regardless of vacancies, subject to active duty or active duty for train- to the following conditions: ing under provisions of this part may (A) The losing unit certifies that the be delayed as prescribed by the Sec- reservist’s performance of service has retary of the Military Department con- been satisfactory. cerned. (B) The reservist’s specialty is usable (13) Individuals whose involuntary in the unit, the member can be re- order to active duty would result in ex- trained by on-the-job training, or the

474 Office of the Secretary of Defense § 100.6 member is willing to be retrained as on the basis of preparation for the min- outlined in paragraph (b)(2)(ii) of this istry. section. (7) Individuals who are enrolled in a (iv) Are authorized to transfer to an- course of graduate study in one of the other Reserve component under the health professions shall be screened in provisions of DoD Directive 1205.51, accordance with DoD Directive 1200.141, ‘‘Transfer of Persons Between Reserve ‘‘Reservists Who Are Engaged in Grad- Components of the Armed Forces,’’ uate Study or Training in Certain June 25, 1959, when the conditions out- Health Progressions,’’ July 30, 1969. lined in paragraph (b)(2)(iii) apply. (8) Individuals who incur a bona fide, (3) If members of the Selected Re- temporary nonmilitary obligation reserve who change their residents fail to quiring overseas residency outside the join another unit within a period of 90 United States, or religious missionary days, and at least 1 unit of their com- obligation shall be processed in accord- ponent is within a reasonable commuting distance, as such distance is de- ance with 32 CFR art 103. fined in § 100.6(e) they shall be proc- (9) Nothing in this part shall be con- essed in accordance with § 100.5(a) un- strued as limiting the right of the indi- less they are considered eligible to be vidual to voluntarily request transfer handled as ‘‘exceptions’’ under policies to the Standby Reserve or to the Re- outlined in paragraph (b) (5) through tired Reserve, or discharge from the (8) of this section. Reserve components when such action (4) If members of the Selected Re- is authorized by regulations of the serve who change their residences lo- Military Department concerned. cate in an area where they reside be- (10) Nothing in this part shall be con- yond a reasonable commuting distance, strued as precluding action against a as such distance is defined in § 100.6(e) member of the Ready Reserve, either of a paid-drill unit of the same Reserve by court-martial or review by a board component, they shall be assigned to of officers convened by an authority the IRR of their service until they are designated by the Secretary of the able to transfer to a paid-drill unit of Military Department concerned, when another Reserve component; or com- such action might otherwise be war- plete their statutory military service ranted under 10 U.S.C. 268(b), 270, 510, obligation. 511, 593, 597, 651, 652, 672, 673, 673a, 673b, (5) Members of the Ready Reserve 685, and 1163 and the regulations of the who are preparing for, or are engaged Military Department concerned. in, critical civilian occupations will be screened in accordance with 32 CFR § 100.6 Definitions. part 44. (a) Ready Reserve. Consists of the Se- (6) Individuals who are preparing for lected Reserve and the Individual the ministry in a recognized theo- Ready Reserve. Members of both are logical or divinity school may participate voluntarily in the Ready Reserve. subject to active duty as outlined in 10 However, under 10 U.S.C. 685, such indi- U.S.C. 672 and 673. viduals may not be required to do so. (b) Selected Reserve. Members of the Members who do not wish to partici- Ready Reserve in training/pay cat- pate shall be transferred to the Stand- egories A, B, C, F, M and P. These re- by Reserve. If such training is termi- servists are either members of units nated before graduation, the member who participate regularly in drills and may be transferred back to the Ready annual active duty for training, in an- Reserve. A member eligible for assign- nual field training in the case of the ment to the Standby Reserve under the National Guard, or are on initial active provisions of 10 U.S.C. 268(b), 270, 510, duty for training; or they are individ- 511, 593, 597, 651, 652, 672, 673, 673a, 673b, uals who participate in regular drills 685, and 1163 who voluntarily remains and annual active duty on the same assigned to the Selected Reserve and basis as members of Reserve compo- participates in the training required, nent units. Excluded from the Selected waives any right to request delay to Reserve are Reserve component mem- exemption from any later mobilization bers who are:

475 Pt. 100, Encl. 32 CFR Ch. I (7–1–97 Edition)

(1) Participating in annual active work expected of one individual during duty for training and not paid for at- a calendar or fiscal year. tendance at regular drills (pay cat- (g) Tentative characterization of serv- egories D and E), or awaiting, in a non- ice. An interim description of the qual- pay status, their initial active duty for ity of performance during a period training (pay category L). which is less than the time required to (2) Enrolled in officer training pro- earn an administrative discharge. The gram (pay category J) members of the quality of performance shall be de- Individual Ready Reserve pool (pay scribed as honorable, under honorable category H), and reservists on extended conditions, or under other than honor- active duty. (See 10 U.S.C. 268(b) 32 able conditions. If the quality is de- CFR part 102.) scribed as under honorable conditions a (3) Members of the Inactive Army Na- General Discharge certificate shall be tional Guard. provided upon discharge. If the quality (c) Individual Ready Reserve (IRR). is described as under other than honor- Members of the Ready Reserve not as- able conditions a Discharge Under signed to the Selected Reserve and not Other Than Honorable Conditions cer- on active duty. tificate shall be provided upon dis- (d) Unsatisfactory participation. A charge. member of the Ready Reserve who fails [44 FR 51568, Sept. 4, 1979, as amended at 45 to fulfill his/her obligation or agree- FR 48618, July 21, 1980] ment as a member of a unit of the Ready Reserve described in 10 U.S.C. ENCLOSURE—SUGGESTED FORMAT, 268(b), 270, 510, 511, 593, 597, 651, 652, 672, AFFIDAVIT OF SERVICE BY MAIL 673, 673a, 673b, 685, and 1163. Or a member who fails to meet the standards as State of lllll lllll prescribed by the Military Depart- County of lllll (Name of individuals who mailed ments concerned for attendance at orders), being duly sworn, deposes and says: training drills, attendance at active I am the lllll (Job Title, e.g., Person- duty for training, training advance- nel Officer) of lllll (Unit) on the lll ment, or performance of duty. day of lllll 19l, I mailed the original (e) Reasonable commuting distance. orders, a true copy of which is attached here- The maximum distance a member of a to, by Certified Mail (Return Receipt Re- Reserve component may travel invol- quested) to lllll (Name and address of untarily between residence and drill member of orders) that being the last known training site, in accordance with address given to lllll (Unit) as the one § 100.5(b)(1). This distance may be with- at which official mail would be received by or forwarded to the Reserve component in: member by depositing same in an official de- (1) A 100-mile radius of the drill site pository of the U.S. Postal Service at that does not exceed a distance that lllll (Location of Postal Facility) in a can be traveled by automobile under securely wrapped and sealed U.S. Govern- average conditions of traffic, weather, ment official postal envelope with a Return and roads within 3 hours. This applies Receipt Card (PS Form 3811) attached and only to those units that normally con- the envelope addressed to the member at the duct four drills on 2 consecutive days address provided. A Receipt for Certified Mail (PS Form 3800) attesting to such action during the training year, if Govern- is attached. ment meals and quarters are provided lllll (Signature and Rank of Affiant) at the base where the unit drills. (The Sworn and subscribed before me this lll provisions of this paragraph shall apply day of lllll 19l. only to those individuals enlisting, re- lllll (Signature and Rank of Officer Ad- enlisting, or extending their enlist- ministering Oath) ments after November 1, 1972.) (2) A 50-mile radius of the drill site PART 101—PARTICIPATION IN that does not exceed a distance that RESERVE TRAINING PROGRAMS can be traveled by automobile under average conditions of traffic, weather, Sec. and roads within a period of 11⁄2 hours. 101.1 Reissuance and purpose. (f) Standard-year. Personnel author- 101.2 Applicability. izations that describe the amount of 101.3 Definitions.

476 Office of the Secretary of Defense § 101.5

101.4 Responsibilities. (A) In at least 48 scheduled drills or 101.5 Requirements. training periods and not less than 14 101.6 Criteria for satisfactory performance. days (exclusive of travel time) of active 101.7 Compliance measures. 101.8 Reserve training in sovereign foreign duty training during each year; or nations. (B) On active duty for training for no more than 30 days each year, unless AUTHORITY: 10 U.S.C. 270 (a), (b), (c), 511 (b), otherwise specifically prescribed by the (d), and 673a, and 32 U.S.C. 502(a). Secretary of Defense. SOURCE: 44 FR 53160, Sept. 13, 1979, unless (ii) The provisions of § 101.5(a)(1) do otherwise noted. not apply to graduates of the Federal and State Maritime Academies who are § 101.1 Reissuance and purpose. commissioned in the Naval Reserve. This part establishes: (a) The criteria (2) Training requirements under 32 and training requirements for satisfac- U.S.C. 502(a) apply to the Secretaries of tory participation by members of the the Army and Air Force only. Members Reserve components of the U.S. Armed of the Army and Air National Guard Forces who are subject to the provi- shall: sions of 10 U.S.C. and 32 U.S.C., and (b) (i) Assemble for drill and instruction uniform DoD policy for training mem- at least 48 times a year, and bers of such Reserve components who (ii) Participate in training encamp- may be temporarily residing in sov- ments, maneuvers, or other exercises ereign foreign nations. at least 15 days a year, unless excused by the Secretaries of the Army or Air § 101.2 Applicability. Force. The provisions of this part apply to (3) Active duty. Enlisted members who the Office of the Secretary of Defense have served 2 years on active duty or and the Military Departments. who, under the policy and regulations of the Military Services concerned, § 101.3 Definitions. were credited with having served 2 For the purposes of administering 10 years of active duty will not be re- U.S.C. 270(a), the terms enlisted and ap- quired to perform duty as described in pointed refer to initial entry into an paragraph (a)(1)(i) (A) and (B) of this armed force through enlistment or ap- section unless such members: pointment. (i) Enlisted under the provisions of 10 U.S.C. 511(b) or (d) thereby incurring a § 101.4 Responsibilities. statutory obligation to participate in The Secretaries of the Military De- the Ready Reserve in an active train- partments will issue regulations pre- ing status for a specified period of time scribing criteria and training require- after the 2 years of active duty de- ments for satisfactory participation in scribed above. Reserve training programs by members (ii) Performed part or all of their 2 of Reserve components of the U.S. years of active duty as a result of being Armed Forces and exceptions thereto, ordered to active duty under 10 U.S.C. consistent with § 101.5. 673a for not participating satisfactorily in a unit of the Ready Reserve. How- § 101.5 Requirements. ever, the Secretary concerned, or des- (a) Reserve participation—(1) Training ignee, may waive this requirement in requirements under 10 U.S.C. 270(a). (i) those cases where involuntary reten- Each individual inducted, enlisted, or tion would not be in the best interest appointed in the U.S. Armed Forces of the Service. after August 9, 1955, who becomes a (iii) Filled a vacancy in the Selected member of the Ready Reserve (by Reserve that otherwise cannot be means other than through membership filled, following a diligent recruiting in the Army National Guard of the effort by the Secretary concerned. United States (see § 101.5(a)(2)) during (iv) Executed a separate written the required statutory period in the agreement incurring an obligation to Ready Reserve, participate or serve as participate in the Selected Reserve. follows, except as provided in 32 CFR (4) Active duty served in a combat zone. part 102. (i) Except as specified in paragraph

477 § 101.6 32 CFR Ch. I (7–1–97 Edition)

(a)(4)(ii), enlisted members who (A) CFR part 102, except as otherwise pro- have served on active duty in a combat vided by 32 CFR part 100. zone for hostile fire pay (or other areas (2) Members who have performed a as prescribed by the Secretary of De- minimum initial tour of extended ac- fense) for a total of 30 days or more, or tive duty, as prescribed by the Military (B) are wounded while on active duty Departments concerned may be placed in hostile areas, will not be required to in Category I (no training) as defined perform duty involuntarily (as de- in 32 CFR part 102, when the Secretary scribed paragraph (a) (1)(i)(A) and (2) of of the Military Department concerned this section. However, these members determines that no training for mobili- may be required to participate or serve zation requirement exists because of on active duty for no more than 30 days (i) Changes in military skills re- each year, unless otherwise specifically quired; prescribed by the Secretary of Defense. (ii) The degree of military skill held; (ii) Members, who enlisted under the or provisions of 10 U.S.C. 511(b) or (d) and (iii) Compatibility of the member’s serve on active duty described in para- civilian occupation with his/her mili- graph (a)(4)(i) are obligated to partici- tary skill. pate in the Ready Reserve in an active (b) May grant exceptions regarding duty training status during the statu- absences after considering the mem- tory period of service in the Ready Re- ber’s manner of performance of pre- serve. scribed training duty under the provi- (5) Exclusion. Notwithstanding the ex- sions of § 101.5(a)(1) and provided that clusion of the member enlisted under the absences not so excepted do not ex- the provisions of 10 U.S.C. 511(b) or (d), ceed 10% of scheduled drills or training from the policies set forth in paragraph periods. (a) (3) and (4) of this section, the Sec- (c) Shall require members to: (1) retaries of the Military Departments Meet the standards of satisfactory per- may, with the approval of the Sec- formance of training duty set forth in retary of Defense, establish criteria § 101.6(b); or (2) participate satisfac- which may excuse certain enlistees torily in an officer training program. from performing the duty described in The placement of such members in the § 101.5(a), depending upon the particular Standby Reserve as a result of the needs of the Military Department con- screening process prescribed in 32 CFR cerned. part 44, will continue to constitute satisfactory performance of service. § 101.6 Criteria for satisfactory performance. § 101.7 Compliance measures. Within the general policy outlined in Under the provisions of 32 CFR part § 101.5(a), the minimum amount of an- 100, members of the Ready Reserve who nual training prescribed by the Sec- fail to meet the criteria for satisfac- retaries of the Military Departments tory performance, as set forth in § 101.6, concerned will be no less than the may be: training required to maintain the pro- (a) Ordered to active duty; or ficiency of the unit and the skill of the (b) Ordered to active duty for train- individual. In establishing annual ing; or training requirements under this pol- (c) Transferred to, or retained in the icy, the Secretaries: Individual Ready Reserve with a ten- (a) May grant exceptions under cir- tative characterization of service, nor- cumstances outlined below for individ- mally under other than honorable con- uals who are subject to the training re- ditions; or quirements set forth in § 101.5(a)(1) and (d) Discharged for unsatisfactory par- (2): ticipation under the provisions of 32 (1) To the degree that it is consistent CFR part 41, when the Military Depart- with military requirements, the per- ment concerned has determined that sonal circumstances of an individual the individual has no potential for use- may be considered in assigning him/her ful service under conditions of full mo- to a training category prescribed in 32 bilization.

478 Office of the Secretary of Defense § 102.1

§ 101.8 Reserve training in sovereign PART 102—UNIFORM RESERVE, foreign nations. TRAINING AND RETIREMENT CAT- (a) The Secretaries of the Military EGORIES Departments may authorize the conduct of scheduled drills or training pe- Sec. riods, correspondence courses, and such 102.1 Purpose. 102.2 Applicability. other active or inactive duty training 102.3 Definitions. as they consider appropriate for mem- 102.4 Policy. bers of the Reserve components who 102.5 Responsibilities. may be temporarily residing in sov- 102.6 Procedures. ereign foreign nations which permit APPENDIX A TO PART 102—UNIFORM RESERVE, the United States to maintain troops TRAINING AND RETIREMENT CATEGORIES of the Active Forces (other than Mili- APPENDIX B TO PART 102—MEMBERS PARTICI- tary Advisory Assistance Group or at- PATING IN APPROVED PROGRAMS OUTSIDE THE DEPARTMENT OF DEFENSE tached personnel) within their bound- APPENDIX C TO PART 102—DEFINITIONS EX- aries. PLAINED (b) Prior to authorizing such train- APPENDIX D TO PART 102—AUTHORIZED RE- ing, the Secretaries of the Military De- SERVE, TRAINING AND RETIREMENT CAT- partments will instruct the attaches EGORIES representing their respective Depart- AUTHORITY: 10 U.S.C. 136. ments to inform the U.S. Ambassador SOURCE: 57 FR 3541, Jan. 30, 1992, unless and the appropriate officials of the for- otherwise noted. eign government of the intent to conduct such training. If the foreign gov- § 102.1 Purpose. ernment objects, the Secretaries of the This revises 32 CFR part 102 to: Military Departments will furnish all (a) Update DoD policy and assign re- the facts and their recommendations to sponsibilities for implementing recent the Secretary of Defense. changes in law. (c) This policy does not prohibit the (b) Establish DoD policy guidance for maintaining and reporting personnel conduct of inactive duty training, such data in accordance with (IAW) DoD Di- as correspondence courses, in those rective 1205.17 1 and DoD Instruction sovereign foreign countries in which 7730.54.2 the United States does not maintain (c) Designate uniform Reserve com- Active Forces and where an agreement ponent (RC) categories (RCCs) and exists between the United States and training and retired categories (TRCs) the sovereign foreign nation concerned for the Ready Reserve, Standby Re- for the conduct of such training. serve, and Retired Reserve of the (d) This policy does not prohibit for a Armed Forces under 10 U.S.C. 268, 270, limited duration the augmentation of 271, 273, 274, 1376, 2001, and 6017. Defense Attache Offices by attache re- (d) Establish minimal training cri- servists (mobilization augmentees or teria for each category of the RCs. mobilization designees) during periods (e) Provide DoD uniform planning of local emergencies or for short-term policies and procedures on training. (less than 30 days) training periods, (f) Establish DoD Policy guidance for provided the provisions of paragraph participation in Selective Service Sys- tem (SSS) activities, civil defense ac- (b) of this section are respected. Atta- tivities, and continental United States che reservists who are available, pos- (CONUS) Defense programs by mem- sess the expertise required, and reside bers of the Ready and Standby Reserve. temporarily in foreign countries, shall be utilized to the maximum extent to 1 Copies may be obtained at cost from the augment Defense Attache Offices be- National Technical information Service, 5285 fore the continental United States- Port Royal Road, Springfield, VA 22161. based attache reservists are utilized. 2 See footnote 1 to § 102.1(a).

479 § 102.2 32 CFR Ch. I (7–1–97 Edition)

§ 102.2 Applicability. days a year (section 270(a)(2) of title 10, This part applies to the Office of the U.S.C.) There is no statutory maximum Secretary of Defense (OSD); the Mili- annual limit on required training for tary Departments and their Reserve members of the National Guard. Train- components (RCs); the Chairman, Joint ing for the Individual Ready Reserve Chiefs of Staff and Joint Staff; the U.S. (IRR), Standby Reserve, and Retired Coast Guard (USCG) and its Reserve Reserve may be accomplished volun- Component (RC) with the concurrence tarily IAW DoD procedures in § 102.6. of the Department of Transportation (3) Approve any additional inactive (DoT); and the Defense Agencies (here- duty training (IDT), as necessary and after referred to collectively as ‘‘DoD consistent with law. Authorizing and Components’’). utilizing additional training is subject to the categories, limitations, and con- § 102.3 Definitions. trols in § 102.4(c). Uniform Reserve, training and retire- (c) Provide Consideration for Establish- ment categories used in this part are ing Criteria. (1) Training programs shall defined in appendix A to this part. provide for the minimal number of IDT Other terms used in this part are de- periods, annual training (AT), and ADT fined in appendices B and C to this required for attaining the prescribed part. unit readiness status and maintaining individual proficiency. § 102.4 Policy. (2) Paid IDT periods shall not be less than 4 hours. No more than two IDT It is DoD policy to: periods may be performed in any cal- (a) Establish Authorized RCCs and TRCs. Appendix D to this part estab- endar day. Service Secretaries shall lishes authorized RCCs and TRCs in the prescribe minimum standards for IDT, RCs for training and accountability IAW 37 U.S.C. 206. purposes. Each unit and member of the (3) IDT periods for points only (with- RCs not counted in active duty (AD) out pay) shall not be less than 2-hours end strengths, IAW 10 U.S.C. duration with a maximum of two 115(b)(1)(B), shall be placed in one of points authorized in any 1 calendar day the RCCs and TRCs so identified. (one point in any 1 calendar day for at- (b) Establish Criteria. To ensure that tendance at professional or trade con- 3 trained and qualified RC units and in- ventions) (DoD Instruction 1215.7. ) dividuals are available for AD in time (4) Where practical, multiple IDT pe- of war or national emergency, and that riods (MIDTPs) shall be used to maxi- funds appropriated annually for RC mize training effectiveness. training are adequate for meeting mo- (d) Provide Additional IDT Periods. Ad- bilization requirements, the Secretary ditional IDT periods are intended to concerned shall establish necessary cri- improve readiness by providing for in- teria and procedures to do the follow- dividuals and units to receive required ing: and necessary training for attaining (1) Place all RC members in an RCC and maintaining designated readiness and TRC IAW the uniform Reserve, levels. The Secretary concerned shall training and retirement categories de- establish guidance for and approve use scribed in appendices A and D of this of additional IDT periods IAW limits in part. Individuals shall be assigned to paragraphs (d)(1) through (d)(3) of this RCCs and TRCs based on their mobili- section. zation obligations and training require- (1) Those training periods are in- ments. tended for the principal use of non- (2) Ensure that all RC members re- technician drilling Reservists. The RC ceive training IAW mobilization as- shall identify additional IDT periods signments and required readiness lev- separately from normal unit or individ- els. All members of the Ready Reserve, ual training periods in budget docu- except members of the Army National ments and in internal records so that Guard (ARNG) of the United States and training period costs and training sup- the Air National Guard (ANG) of the port costs for each type of additional United States, may be required to serve on AD training (ADT) up to 30 3 See footnote 1 to § 102.1(a).

480 Office of the Secretary of Defense § 102.4 training clearly may be identified, jus- used for augmenting missions or func- tified, and audited. Those additional tions, but must provide bona fide train- IDT periods used by technicians shall ing opportunities required to meet be identified separately in budget docu- readiness levels. That authority may ments to monitor compliance with DoD not be delegated below the Service Sec- policy. retary. (2) Three categories of additional IDT (e) Provide AD. At any time, an au- periods are, as follows: thority designated by the Secretary (i) Additional training periods (ATPs) concerned may order a member of the for units, subunits, and individuals are RC under his or her jurisdiction to AD for accomplishing additional required or retain him or her on AD with the training, as defined by a unit’s consent of the member under the au- postmobilization mission. The number thority of 10 U.S.C. 672(d). However, a of those training periods shall not ex- member of the ARNG of the United ceed 12 each fiscal year (FY) for any States or the ANG of the United States member. may not be ordered to AD under that (ii) Additional flying and flight train- authority without the consent of the ing periods (AFTPs) are authorized for governor or other appropriate author- primary aircrew members for conduct- ity of the State or territory, the Com- ing aircrew training and combat crew monwealth of Puerto Rico, or the Dis- qualification training to attain and trict of Columbia. Five categories of maintain aircrew flying proficiency AD for RC members serving with RC and sustain mobilization readiness. are, as follows: AFTPs shall not be in addition to the (1) Initial AD training (IADT), which ATPs in paragraph (d)(2)(i) of this sec- includes basic military training and tion. The number of those training pe- technical skill training, is required for riods shall not exceed 48 each FY for all enlisted accessions. For nonprior any aircrew member, unless specifi- service (NPS) male enlistees who are cally authorized by the Secretary con- between the ages of 181⁄2 and 26 years, cerned. that IADT shall be for a period of not (iii) Readiness management periods less than 12 weeks to commence, inso- (RMPs) are used to support the ongoing far as practical, within 270 days after day-to-day operation of the unit, ac- the date of enlistment. For all other complishing unit administration, enlistees, the period of IADT shall be training preparation, support activi- as prescribed by the Secretary con- ties, and maintenance functions. The cerned to commence, insofar as prac- number of RMPs shall not exceed 24 tical, within 360 days after entry into each FY for any member. Those train- Service, except that in time of war or ing periods shall be used only where national emergency declared by Con- sufficient full-time support (FTS) per- gress or the President basic training sonnel are not available to accomplish (or its equivalent) shall be for a period those duties. RMPs shall not be per- of not less than 12 weeks. Enlisted formed on the same day another train- members receiving stipends under the ing period (IDT, ATP, or AFTP) is Armed Forces Health Professions being performed and not more than one (AFHP) Stipend Program for Reserve RMP shall be performed by an individ- Service (the Stipend Program) are not ual in 1 calendar day. required to participate in Ready Re- (3) Notwithstanding the limitations serve training until they have com- in paragraphs (d)(2)(i) and (d)(2)(iii) of pleted their educational training (10 this section, the Service Secretary may U.S.C. 511(b), 511(d), 671(b), and 2128). authorize ATPs or RMPs in excess of (2) AT may be required for all mem- those specified on an exception basis. bers of the Ready Reserve. By DoD pol- Exception shall be strictly limited to icy, members of the Selected Reserve specific skills and missions requiring shall perform AT. For all members of training in excess of that authorized in Selected Reserve units, except for paragraphs (d)(2)(i) and (d)(2)(iii) of those in the National Guard, that this section. In no case shall ATPs or training shall be for not less than 14 RMPs exceed 30 each year for each per- days (exclusive of travel time) each son. Those training periods shall not be year (10 U.S.C. 270(a)(1)). National

481 § 102.5 32 CFR Ch. I (7–1–97 Edition)

Guard units are required to perform FTS numbers for each RC under the full-time military training (in AD or collective title of Active Guard or Re- full-time National Guard duty status) serve (AGR), including Navy training for at least 15 days each year including and administration of Reserves (TARs) travel time (32 U.S.C. 502). and all statutory tour personnel. (3) ADT is authorized to provide for (f) Provide for Muster Duty (MD). (1) full-time attendance at organized and To meet the annual screening require- planned specialized skill training, ment established by § 102.6(b)(1), an au- flight training, combat crew training, thority designated by the Secretary unit conversion training, refresher and concerned may order a member of the proficiency training, officer acquisition IRR to MD (established by 10 U.S.C. training, professional development 687). MD shall include a minimum of 2 education programs, etc., for providing hours at the muster site and may not RC members with necessary skills and include more than 1 day, including disciplines supporting RC missions. Au- travel, each calendar year. An allow- thorized ADT must provide a primary ance for MD shall be paid IAW 37 U.S.C. training content to the recipient. Au- 433 and DoD Instruction 1215.7 at the thorization for ADT shall be managed rate determined by the DoD Per Diem IAW DoD Directives established by the Committee and included in the ‘‘DoD Secretaries concerned. Nontechnician Military Pay and Allowances Entitle- personnel shall receive priority consid- ment Manual.’’ eration for such training. (2) In cases where a total of more (4) AD for special work (ADSW) is au- than 1 day is required to meet the an- thorized for personnel from applicable nual screening requirement, or in other military or Reserve personnel appro- specific circumstances approved under priations for projects supporting active regulations issued by the Secretary or RC programs, such as annual screen- concerned, ADT may be used instead of ing, operation of training camps, train- MD. ing ships, and unit conversions to new (g) Restrict Assignment Outside United weapons systems, when such duties are States. A member of the RCs may not essential to the organization. Projects be assigned to AD on land outside the supporting study groups, training site United States, its territories and pos- and exercises, short-term mission sessions, until the member has com- projects, and administrative support pleted the basic training requirements functions also are included. Authoriza- of the member’s Armed Forces (10 tion of ADSW shall be managed IAW U.S.C. 671(a)). DoD Directives established by the Sec- (h) Require Training Participation. The retary concerned. ADSW tours exceed- Secretaries concerned shall establish ing 180 days are accountable against minimal standards for satisfactory par- AD strengths (regular, or RC AD end ticipation at required training periods, strengths, consistent with pay appro- which shall include the number and priations) IAW 10 U.S.C. 115(b)(1)(B). By percentages of training periods for DoD policy, those tours normally are meeting the minimal standards. Indi- limited to 139 days, or less, in 1 FY. Ex- viduals attending IDT periods are re- ceptions to the 139-day limit may be quired to meet those minimal training granted on an individual basis for spe- standards. Those standards shall con- cific mission requirements. Nontechni- tain procedures for accounting for ab- cian personnel shall receive priority sences and excused drills, as necessary. consideration for those tours. Short Individuals voluntarily may attend breaks in tours; i.e., 30 days or less, to extra IDT periods for points, IAW DoD circumvent that requirement, are not Directive 1215.13.4 authorized. (5) AD, other than for training or § 102.5 Responsibilities. ADSW, including full-time National Guard duty, is authorized in support of (a) The Assistant Secretary of De- RC missions, under 10 U.S.C. 265, 672(d), fense (Reserve Affairs) (ASD(RA)) 678, 715, 3019, 3033, 3496, 8019, 8033, and shall: 8496 and 32 U.S.C. 708. Personnel performing such duty are included in the 4 See footnote 1 to § 102.1(a).

482 Office of the Secretary of Defense § 102.6

(1) Establish DoD policy and provide 12 days (excluding travel time), up to a guidance for RC training and retire- maximum of 30 days each FY, for ac- ment categories. tivities that enhance readiness, such as (2) Establish policy guidance for the participating in mobilization exercises. minimal training criteria and the AD Training may begin on days other than requirements associated with each cat- Monday, when special activities begin egory. during the week. (b) The Secretaries of the Military (iii) AT normally is performed during Departments and the Commandant of one consecutive period. Split tours the United States Coast Guard (USCG) may be authorized for selected units or shall: individuals, if required to meet train- (1) Place all RC members in a RCC ing missions. Any additional costs and TRC IAW criteria established in must be justified fully. Authorization appendices A and D of this part. for variations in AT lengths shall be (2) Ensure that plans and policies for managed IAW DoD Directives estab- the management of RCCs are consist- lished by the Secretaries concerned. ent with this part. (3) Short Periods of AD Performed by (3) Ensure that RC members receive Members of the Selected Reserve. Under training and serve on AD IAW the min- 10 U.S.C. 672(d), 673, 673b, 3500, or 8500, imum criteria established for each RCC that AD may not be substituted for in § 102.4(c). training required by 10 U.S.C. 270 and by paragraph (a)(2) of this section, un- § 102.6 Procedures. less in the judgement of the Secretary (a) Selected Reserve—(1) IDT. Except concerned: as specifically provided in paragraph (i) AD service performed under 10 (b) of this section, members of the U.S.C. 672(d), 673, 673b, 3500, or 8500 is Ready Reserve shall participate in 48 equivalent to the training that might scheduled training periods each year. have been performed under the author- By DoD policy, that requirement ap- ity of 10 U.S.C. 270 and paragraph (a)(2) plies to all members of Selected Re- of this section. serve units (10 U.S.C. 270(a)(1) and 32 (ii) AD service under 10 U.S.C. 672(d), U.S.C. 502). 673, 673b, 3500, or 8500, when combined (2) AT. Except as specifically pro- with training required by 10 U.S.C. 270 vided in paragraph (b) of this section, and paragraph (a)(2) of this section AT is required for all members of the constitutes an undue personal hard- Ready Reserve. By DoD policy, that re- ship. quirement is limited to members of the (4) NPS Personnel. (i) Those personnel Selected Reserve. For members of the enlisted directly into an Armed Force Reserves, that training shall be for not who have not completed the basic less than 14 days (exclusive of travel training (IADT) requirements of that time) each year except, as in paragraph Armed Force. During war, the period of (a)(2) of this section. Units of the Na- required basic training (or its equiva- tional Guard are required to perform lent) may not be less than 12 weeks. full-time military training for at least Exceptions for personnel with civilian- 15 days each year, including travel acquired skills may be authorized, as time. specified in the implementing regula- (i) AT tours for individual mobiliza- tions of the Military Departments. tion augmentees (IMAs) or other Re- (ii) The Secretaries concerned may servists assigned as an individual to require members enlisted for service in any training categories ordered to AT the Selected Reserve to participate in at Headquarters, support organiza- IDT periods before completing IADT. tions, or to activities not operating on Those training periods may be with or Saturday, Sunday, or Federal holidays, without pay. normally are limited by DoD policy to (iii) IADT, which includes basic mili- 12 days excluding travel time; i.e., from tary training and technical skill train- Monday of the first week through Fri- ing, is required for all enlisted acces- day of the second week. sions. For NPS male enlistees who are (ii) When required, members may be between ages of 181⁄2 and 26 years, that ordered to AT for longer periods than IADT shall be for a period of not less

483 § 102.6 32 CFR Ch. I (7–1–97 Edition) than 12 weeks to commence, insofar as tarily in IDT for points only IAW the practical, within 270 days after the regulations of the Military Services. date of enlistment. For all other enlist- (c) Standby Reserve. The Standby Re- ees and inductees, IADT shall be for a serve consists of personnel who main- period prescribed by the Secretary contain their military affiliation without cerned to commence, insofar as prac- being in the Ready Reserve IAW 10 tical, within 360 days after entry into U.S.C. 267, 272, and 273 and DoD Direc- Service, except that, during war or native 1235.9.5 tional emergency declared by Congress (1) Active Status Listing. The following or the President, the period of basic members of the Standby Reserve are in training (or its equivalent) shall be for an active status. By DoD policy, mem- a period of not less than 12 weeks. Indi- bers of the Standby Reserve in an ac- viduals receiving stipends under the tive status may participate voluntarily AFHP Stipend Program for Reserve without pay in RC training for retire- Service are not required to participate ment points only. Those following in Ready Reserve training, until they members may receive promotion cred- have completed their educational it, be considered for promotion, and if training (10 U.S.C. 511(b), 511(d), 671(b), selected, be promoted: and 2128). (i) Personnel who have not fulfilled (iv) Individual Reservists are exempt their statutory MSO. from participating in AT or ADT dur- (ii) Personnel temporarily assigned ing the last 120 days before completing for hardship, or other cogent reason, their Military Service obligation who intend returning to the Ready Re- (MSO) if they have served on AD for 1 serve. year, or longer. (See 10 U.S.C. 270(a)). (iii) Personnel retained in an active (b) IRR—(1) IRR Screening. Members RC status under 10 U.S.C. 1006. of the IRR, not scheduled for manda- (iv) Members transferred from the tory or voluntary training, are re- Ready Reserve to the Standby Reserve, quired to serve at least 1 day of MD or after being designated as ‘‘key person- AD each year to accomplish annual nel’’ by their employers, may volunteer screening requirements IAW 10 U.S.C. for assignment to the Standby Reserve 271(a), 275(a), 652, and 1004. Exemptions Active Status List for the period they from IRR screening during 1 FY are au- remain designated as key personnel. thorized for members who served on Individuals desiring to be transferred AD during the FY; who are scheduled shall apply directly to the RC con- for discharge from the Military Service cerned. during the FY; who reside outside geo- (2) Inactive Status List. The following graphical limitations established by members of the Standby Reserve are in the Secretaries of the Military Depart- an inactive status (they may not par- ments; who are in the grade of O–4, or ticipate for points, pay, or promotion higher, and have no remaining MSO; credit and may not be considered for or, who were successfully screened in promotion, or promoted): the preceding FY. Under no cir- (i) Members transferred to the Inac- cumstances should a member serve an tive Status List instead of separating initial period in the IRR of more than IAW 10 U.S.C. 1209. 18 months without participating in a (ii) All other members transferred to screening either during an annual mus- the Inactive Status List IAW DoD Di- ter or during a period of training. The rective 1235.9. Personnel enrolled in a Services are required to maintain the military school course, including cor- current status of each member’s phys- respondence courses, when transferred ical condition, dependency status, mili- from the Ready Reserve to the Standby tary qualification, civilian occupa- Reserve Inactive Status List may con- tional skills, availability for service, to tinue voluntarily participating in the include current address, and other in- course until completion. Those person- formation, as prescribed. nel shall not be entitled to pay and al- (2) IRR Members. Those members, in- lowances, travel and transportation, or cluding individuals enlisting directly into the IRR, may participate volun- 5 See footnote 1 to § 102.1(a).

484 Office of the Secretary of Defense Pt. 102, App. A to earn promotion and retirement categories shall be IAW DoD 7110.1–M.7 points for that training. The Secretary concerned is authorized (d) Retired Reserve. Consists of all per- to include in the budget for the active sonnel transferred to the Retired Re- component (AC) funds providing AD serve and subject to mobilization IAW tours for Reserves on temporary duty DoD Directive 1352.1.6 Retired Reserv- (TDY) in support of AC and RC pro- ists voluntarily may train (with or grams. without pay) with a unit where they have premobilization orders. Suitable APPENDIX A TO PART 102—UNIFORM RE- arrangements with the unit are re- SERVE, TRAINING AND RETIREMENT quired. The Retired Reserve consists of CATEGORIES the following categories: There are three RCCs. They are the Ready (1) Reserve members in receipt of re- Reserve, The Standby Reserve, and the Re- tired pay under 10 U.S.C. chapter 67. tired Reserve. Each member of the National (2) Reserve members who have trans- Guard and Reserve is assigned within one of ferred to the Retired Reserve after those categories. (All National Guard mem- completing 20 qualifying years cred- bers, including those in the Inactive Na- itable for retired pay under 10 U.S.C. tional Guard (ING), are in the Ready Re- chapter 67, but who are not yet 60 years serve.) of age, or are age 60 and have not ap- A. Ready Reserve Categories plied for retired pay. The Ready Reserve is comprised of mili- (3) Reserve members retired for phys- tary members of the Reserve and National ical disability under 10 U.S.C. 1201, Guard, organized in units or as individuals, 1202, 1204, or 1205. Members have com- and liable for order to AD in time of war or pleted 20 years of Military Service national emergency under 10 U.S.C. 672 and creditable for retired pay, under 10 673 (reference (d)). The Ready Reserve con- U.S.C. chapter 67 or are more than 30- sists of three subcategories: the Selected Re- percent disabled. serve, the IRR, and the ING. (4) Reserve officers and enlisted 1. Selected Reserve. The Selected Reserve consists of those units and individuals in the members who have retired after com- Ready Reserve designated by their respective pletion of 20, or more, years of active Services and approved by the Chairman, Military Service. That does not include Joint Chiefs of Staff (CJCS), as so essential Regular enlisted members of the Army, to initial wartime missions that they have the Navy, the Air Force, or the Marine priority over all other Reserves. All Selected Corps, with 20 to 30 years of Military Reservists are in an active status. The Se- Service who are assigned to the Retired lected Reserve includes the following: Reserve or transferred to the Fleet Re- a. Selected Reserve Units. Units manned and equipped to serve and/or train either as oper- serve (Navy) or the Fleet Marine Corps ational or as augmentation units. Oper- Reserve. ational units train and serve as units. Aug- (5) Reserve personnel drawing retired mentation units train together, but when pay based on retirement for reasons mobilized, lose their unit identity and be- other than age, Service requirements, come part of AC unit or activity. Selected or physical disability. That category is Reserve units include: restricted to those who are retired (1) Drilling Unit Reservists. Trained unit under special conditions, as authorized members participating in unit training activities on a part-time basis shall have the by the ASD(RA) under legislation. RCC and TRC designator of ‘‘SA’’. (e) Voluntary Training. Members of (2) Unit FTS Personnel—(a) AGR. Guard or the RCs, not subject to mandatory Reserve members of the Selected Reserve training, shall be encouraged to par- serving on AD or full-time National Guard ticipate in order to maintain their mo- duty (includes Navy TAR personnel for orga- bilization readiness. The opportunity nizing, administering, recruiting, instruct- to participate voluntarily without pay ing, or training RC units. All unit AGR in training shall be limited by the members must be assigned against or attached to an authorized mobilization posi- manpower and resources authorized by tion in the unit they support. They shall the Secretary. have the RCC and TRC designator of ‘‘SG.’’ (f) Funds. Funds for personnel in uniform Reserve, training and retirement 7 Distribution is maintained by the Office of the Comptroller, DoD, Room 3A862, The 6 See footnote 1 to § 102.1(a). Pentagon, Washington, DC 20301–1100.

485 Pt. 102, App. A 32 CFR Ch. I (7–1–97 Edition)

(b) Military Technicians (MTs). Drilling Re- (2) Enlisted Members Awaiting Second Part of servists who are also Federal civilian em- Split IADT. Those members shall have the ployees providing FTS for administration, RCC and TRC designator of ‘‘UQ.’’ training, and maintenance in a Selected Re- (3) Enlisted Members Awaiting IADT. In- serve unit. MTS must maintain their status cludes members in the Selected Reserve as drilling Reservists in the same unit they serving with or without pay. NPS males be- support as civilian employees. All dual sta- tween the ages of 181⁄2 and 26 years enlisting tus MTs must be in mobilizable positions. under 10 U.S.C. 511(d) shall enter IADT, inso- They are dual status in that they are both far as practicable, within 270 days after the civilian employees and drilling Reservists of date of that enlistment. All other enlisted a Guard or Reserve unit, and are accountable members shall perform IADT, insofar as under the TRC designator of ‘‘SA.’’ practicable, within 360 days of their enlist- (c) AC. AD members paid from military ment. personnel appropriations assigned or at- (a) Members Not Authorized To Perform IDT. tached to National Guard or Reserve units to Service performed by members while in that provide advice, liaison, management, admin- status is not creditable toward computation istration, training, and/or maintenance sup- of basic pay and shall have the RCC TRC des- port in the category of FTS. Those members ignator ‘‘UL.’’ are not part of the Selected Reserve, but (b) Members Authorized To Perform IDT. shall deploy with their assigned unit, should Service performed by members while in that it mobilize. AC members performing FTS are status is creditable toward computation of counted as part of trained strength in units, basic pay and shall have the RCC TRC des- but not in the Selected Reserve strengths. ignator of ‘‘UP.’’ (4) Other Selected Reserve Untrained Person- (d) Civil Service Employees (CIV). Those per- nel in Training Programs. Includes chaplain sonnel are hired under 5 U.S.C. 3101 and 32 candidates, health profession students, and U.S.C. 709 to provide administrative support early commissioning program participants to the RCs. They are in the category of FTS with the RCC and TRC designator of ‘‘UX.’’ to the RCs, but are not part of the Selected (5) AGR Enlisted Members Currently on, or Reserve. Awaiting, IADT. Includes NPS AGR personnel b. Selected Reserve IMAs. Individual mem- (Navy TARs and ADSW) and has the RCC and bers of the Selected Reserve assigned to an TRC designator of ‘‘US.’’ AC organization. Trained individuals pre- (6) Individuals in a Simultaneous Membership assigned to an AC, a SSS, or a FEMA billet Program. Senior Reserve Officer Training that must be filled on, or shortly after, mo- Corps (ROTC) Cadets, Selected Reserve en- bilization. IMAs participate in training ac- listed members in officer candidate pro- tivities on a part-time basis with an AC unit grams, and Marine Corps Platoon Leader preparing for active service in a mobiliza- Class students who are also permitted to be tion. The amount of training required is de- members of a Selected Reserve unit and have termined by DoD policy and may vary from the RCC and TRC designator of ‘‘UT.’’ 0 to 48 IDT periods a year. All IMAs must 2. IRR and ING. The IRR (together with the perform a minimum of 12 days of AT each ING) consists of those Ready Reservists not year and have the RCC and TRC designator in the Selected Reserve. The IRR consists of of ‘‘TB.’’ Reservists in the following categories: c. Training Pipeline. Selected Reserve en- a. IRR is a manpower pool comprised prin- listed members who have not yet completed cipally of individuals having had training, IADT and officers who are in training for having served previously in the AC or in the professional categories or in undergraduate Selected Reserve, and having some period of flying training. IAW 10 U.S.C. 671, all Ready their MSO remaining. There are some vol- Reservists shall receive training commensu- untary individuals in the IRR for hardship or rate with their intended wartime assign- special nonpay programs providing a variety ments, and must complete the basic training of professional assignments and opportuni- requirements of the member’s Service before ties for earning retirement points and mili- assignment on land outside the United tary benefits. Those personnel all have an States. The training pipeline is synonymous obligation to complete either MSO or an- with the term ‘‘nondeployable account.’’ other contractual commitment. Members Personnel in the training pipeline may be voluntarily may participate in training for mobilized, but may not always be available retirement points and promotion with or for deployment with their units. It is DoD without pay. IRR members may be (but are policy that, if otherwise eligible for mobili- not presently) required to meet the same zation and deployment, they shall be consid- training requirements as Selected Reserv- ered as mobilizable assets. Training pipeline ists. Required training (involuntary) may personnel are accounted for separately in the not exceed 30 days a year under 10 U.S.C. following training categories: 270(a)(2). (1) Enlisted Members Currently on IADT. In- b. The IRR also includes some personnel cludes the second part of split IADT, which participating in officer training programs or has the RCC and TRC designator of ‘‘TF.’’ in the AFHP Stipend Program. Members in

486 Office of the Secretary of Defense Pt. 102, App. A that stipend program are required to perform b. Personnel not having fulfilled their stat- 45 days of AD for training a year IAW 10 utory MSO, or temporarily assigned for U.S.C. 2121(c). The RCC and TRC designator hardship reason intending to return to the ‘‘PJ’’ is used for officers not in the Selected Ready Reserve, or retained by an RC in an Reserve participating in officer training pro- active status under 10 U.S.C. 1006. Those grams, or the RCC and TRC designator ‘‘PK’’ members may participate voluntarily with is used for officers not in the Selected Re- or without pay and may receive credit for, serve participating in the Stipend Program.) and be considered for, promotion. They have c. The IRR also includes members of the the RCC and TRC designator of ‘‘YD.’’ Delayed Entry Program (DEP) enlisted 2. Inactive Status List. The following mem- under 10 U.S.C. 513. (Currently, there is no bers of the Standby Reserve are in an inac- requirement to account for those untrained tive status. They may not participate for members of the IRR in the RCCPDS.) points or pay and may not receive credit for d. The ING consists of National Guard per- or be considered for promotion: sonnel in an inactive status in the Ready Re- a. Members transferred to the Standby Re- serve, not in the Selected Reserve, attached serve Inactive Status List under 10 U.S.C. to a specific National Guard unit. To remain 1209 instead of separating. They have the ING members, members must muster once a RCC TRC designator of ‘‘YL.’’ year with their assigned unit, but they do b. All other members transferred to the not participate in training activities. On mo- Standby Reserve Inactive Status List IAW bilization, ING members mobilize with their DoD Directive 1235.9. They have the RCC units. Similar to other IRR, some ING mem- TRC designator of ‘‘YN.’’ bers have legal and contractual obiligations. ING members may not train for points or C. Retired Reserve Categories pay and are not eligible for promotion. Cur- 1. Consists of all personnel transferred to rently, the ING category is used only by the the Retired Reserve. Retired Reservists vol- ARNG and has the RCC and TRC designator untarily may train, with or without pay, of ‘‘II’’. with a unit where they have premobilization orders. Suitable arrangements with the unit B. Standby Reserve Categories are required. The Retired Reserve consists of The Standby Reserve consists of personnel the following retired categories: maintaining their military affiliation with- a. Reserve members who have completed 20 out being in the Ready Reserve, having been qualifying years creditable for retired pay designated key civilian employees, or who and are in receipt of retired pay (at, or after, have a temporary hardship or disability. age 60) under 10 U.S.C. chapter 67. Those Those individuals are not required to per- members shall be assigned the RCC and TRC form training and are not part of units. The designator of ‘‘V1.’’ Standby Reserve is a pool of trained individ- b. Reserve members who have completed 20 uals who may be mobilized as needed to fill qualifying years creditable for retired pay manpower needs in specific skills. The and are not yet 60 years of age, or are age 60 Standby Reserve consists of the following and have not applied for retirement pay. training categories: Those members shall be assigned the RCC 1. Active Status List. The following members and TRC designator of ‘‘V2.’’ of the Standby Reserve are in an active sta- c. Reserve members retired for physical tus: disability under 10 U.S.C. 1201, 1202, 1204, or a. Members designated as key employees 1205. Members have completed 20 years of IAW DoD Directive 1200.7,1 and transferred service creditable for retired pay or are more from the Ready Reserve to the Standby Re- than 30-percent disabled. Those members serve Active Status List for the period they shall be assigned the RCC and TRC designa- remain designated as key personnel. Individ- tor of ‘‘V3.’’ uals desiring to be transferred shall apply di- d. Reserve enlisted members who have rectly to the DoD Component concerned. Key completed 20, or more, years of active serv- employees may participate voluntarily with- ice and are receiving retired or retainer pay. out pay in RC training for retirement points Regular enlisted personnel of the Army, the only and may be considered for promotion. Navy, the Air Force, and the Marine Corps While there is no statutory prohibition with 20 to 30 years of active Military Service against paying active status Standby Re- who are transferred to the Reserve or the servists for IDT or AD, by DoD policy mem- Fleet Naval Reserve on retirement until bers of the Standby Reserve who have been they have completed 30 years of total active screened out of the Ready Reserve as key and retired or retainer service, are NOT in- employees may not be paid for training. cluded in that category. That includes Regu- They have the RCC and TRC designator of lar (but not Reserve) Navy and Marine Corps ‘‘YC.’’ retirees who are transferred to the Fleet Re- serve and the Fleet Mairne Corps Reserve, respectively. Those personnel shall be as- 1 See footnote 1 to § 102.1(a). signed the RCC and TRC designator of ‘‘V4’’.

487 Pt. 102, App. B 32 CFR Ch. I (7–1–97 Edition)

e. Reserve personnel drawing retired pay B. Civil Defense Activities and CONUS Defense under other than age, service requirements, Programs or physical disability. That category is re- 1. The U.S. civil defense and CONUS de- stricted for retirement under special condi- fense program are an integral part of U.S. tions, as authorized by the Office of the national security. Support of civil defense ASD(RA) (OASD(RA)) under legislation. may be provided through RC members par- Those personnel shall be assigned the RCC ticipating with Federal, State, and local and TRC designator of ‘‘V5.’’ civil agencies only when clearly furthering 2. All members retired having completed at specifically identifiable DoD interest. Par- least 20 years of active service (Regular or ticipation shall be in an IDT or ADT status Reserve), regardless of the retired list where and on a reimbursable basis, except when the assigned, may be ordered to AD when re- primary basis for participating is to meet a quired by the Secretary of the Military De- DoD program requirement. Subject to prior- partment concerned, IAW 10 U.S.C. 688. ities and guidance in DoD Directive 3025.10,2 3. Retired Reserve members may be or- military support of those activities is a prop- dered to AD in their status as Retired Re- er mission for DoD Components. Military serve members. It is not necessary to place planning and liaison may be provided by RC the member in the Ready Reserve for that members at selected civil government and purpose. military headquarters and includes such 4. Former members having completed 20 tasks and responsibilities as mutual support satisfactory years service creditable for re- to civil authorities for civil defense, CONUS tirement, but electing to be discharged from defense, physical security of key assets, and the RCs, are not a part of the Retired Re- disaster relief operations. serve nor Military Service members. 2. Programs involving RC members in civil defense activities directly supporting the APPENDIX B TO PART 102—MEMBERS FEMA or State and local government under PARTICIPATING IN APPROVED PRO- a FEMA program must be approved jointly GRAMS OUTSIDE THE DEPARTMENT by the FEMA and the Department of De- fense. Assigning members in an AD (other OF DEFENSE than for training) status supporting of civil A. SSS defense outside the Department of Defense must be approved IAW DoD Directive 1000.17. The SSS administers the Military Selec- The following programs are approved for tive Service Act (MSSA), which authorizes such participation: the Director of Selective Service, by delega- a. Federal Liaison Officers. Those are Re- tion from the President, ‘‘* * * to order to serve officers serving as IMAs performing active duty with their consent and to assign planning and liaison responsibilities between to the Selective Service System such officers DoD Components and Federal regional Head- of the selective-service section of the State quarters, including interface with the civil headquarters and headquarters detachments sector, as directed by their DoD Component and such other officers of the federally rec- through the Military Service planning agent. ognized National Guard of the United States Federal liaison officers function primarily in or other armed forces personnel (including support of DoD missions. All costs are paid personnel of the reserve components thereby the DoD Components. Each Military De- of), as may be necessary for the administra- partment is authorized to assign one or more tion of the national and of the several State Federal liaison officers (other than flag or headquarters of the Selective Service Sys- general officer rank) at each FEMA region tem.’’ and at FEMA national Headquarters. 1. AD. Requests for assignment to the SSS b. State Liaison Officers. Those are reserve and an AD status must be approved IAW DoD officers serving as IMAs performing planning Directive 1000.17.1 Costs for those members and liaison responsibilities betwen their DoD shall be reimbursed to the Department of De- Components and State or U.S. Territory fense. Members shall not be assigned to a Civil Defense or Emergency Service Head- RCC or TRC, shall not be counted against RC quarters for interfacing with the civil sector, strengths, and shall not be included in the as directed by their DoD Component through RCCPDS files. the Military Service planning agent. State 2. Inactive Duty. The Department of De- liaison officers function primarily in support fense and the Office of the Director of Selec- of DoD missions. All costs are paid by the tive Service shall agree annually on the DoD Component. Each Military Department number of RC members assigned as IMAs to is authorized to assign one or more State li- the SSS. The SSS shall reimburse the De- aison officers (other than flag or general offi- partment of Defense for IDT and AT for cer rank) at each State or U.S. territorial those members. Headquarters and shall assign or attach such

1 See footnote 1 to § 102.1(a). 2 See footnote 1 to § 102.1(a).

488 Office of the Secretary of Defense Pt. 102, App. C officers to functions supervised by the State military or Reserve personnel appropriations Area Command (STARC). for work on AC or RC programs. That in- c. Regional Military Emergency Coordinators cludes annual screening, training camp oper- (RMECs). Those are Reserve officers serving ation, training ship operation, and unit con- as IMAs and performing resource claimancy versions to new weapons systems when such tasks for their DoD Components while par- duties are essential. ADSW may also be au- ticipating in resource management of emer- thorized to support study groups, training gency preparedness and crisis operations sites and exercises, short-term projects, and under DoD Directive 5030.45.3 RMEC officers administrative or support functions. By pol- function primarily in support of DoD mis- icy, ADSW tours are normally limited to 139 sions. All costs are paid by the DoD Compo- days, or less, in 1 FY. Tours exceeding 180 nent. Each Military Department is author- days are accountable against AD or AGR end ized to assign one or more officers (other strength. than flag or general officer rank) to the DoD 5. AD for Training (ADT). AD that is used RMEC team. for training members of the RCs to provide d. Civil Preparedness Support Detachments trained units and qualified persons to fill the (CPSD). Those are Selected Reserve units of needs of the Armed Forces in time of war or the U.S. Army Reserve (USAR), whose mis- national emergency and such other times as sions are to augment the communications the national security requires. The member and security capabilities of FEMA emer- is under orders that provide for return to in- gency operations centers. active status when the period of ADT is com- e. FEMA IMAs. Those are IMAs assigned to pleted. ADT includes AT, special tours of responsibilities supporting civil defense ADT, school tours, and the initial duty for planning at FEMA Headquarters and regions, training performed by NPS enlistees. and at State and local civil defense activi- 6. Annual Screening. One-day ADT or MD ties. FEMA IMAs perform 2 weeks of annual required each year for IRR members so the ADT, and the FEMA reimburses the Depart- Armed Forces can keep current on each ment of Defense for those training costs. member’s physical condition, dependency 3. Members of the IRR and Standby Re- status, military qualifications, civilian occu- serve Active Status List, voluntarily participation skills, availability for service, and pating in approved civil defense activities, other information. may receive retirement points IAW DoD In- 7. Annual Training (AT). The minimal pe- struction 1215.7. riod of training Reserve members must per- 4. IRR members participating in civil de- form each year to satisfy the training re- fense activities may request ADT to attend quirements associated with their RC’s as- civil defense courses. If so ordered, those Re- signment. servists shall be entitled to pay and allow- 8. IMA Detachments. An administrative ance including travel allowances for such unit organized to assist in training and to training. manage IMAs. 9. Inactive Duty Training (IDT). Authorized APPENDIX C TO PART 102—DEFINITIONS training performed by a member of a RC not EXPLAINED on AD, or ADT and consisting of regularly scheduled unit training periods, ATPs, or 1. Active Duty (AD). Full-time duty in the equivalent training, and performed by them active Military Service of the United States. in connection with the prescribed activities A general term applied to all active Military of the RC of which they are a member. Service, but not including full-time National 10. Inactive Status. Status of Reserve mem- Guard duty. bers on an inactive status list of RC or as- 2. Active Guard Reserve (AGR). RC members signed to the ING. Those in an inactive sta- of the Selected Reserve ordered to AD or tus may not train for retirement points or full-time National Guard duty with their pay, and may not receive credit for or be consent and consent of the Governor for the considered for promotion or be promoted. purpose of organizing, administering, re- 11. Individual Mobilization Augmentees cruiting, instructing, or training RC units. (IMAs). An individual Selected Reservist who The two major categories are statutory tour receives training and is preassigned to an AC officer and/or enlisted members and unit per- organization, a SSS or a FEMA billet that sonnel. must be filled on, or shortly after, mobiliza- 3. Active Status. Status of all Reserves, ex- tion. IMAs train with those organizations cept those on an inactive status list or in the preparing for mobilization. The IDT require- Retired Reserve. Reservists in an active sta- ment for IMAs is decided by DoD Component tus may train with or without pay, earn re- policy and can vary from 0 to 48 drills a year. tirement points, and may earn credit for and A minimum of 12 days AT is required of all be considered for promotion. IMAs. 4. AD for Special Work (ADSW). A tour of 12. Initial ADT (IADT). Basic military AD for Reserve personnel authorized from training and technical skill training required for all enlisted accessions. For NPS 3 See footnote 1 to § 102.1(a). male enlistees beween the ages of 181⁄2 and 26

489 Pt. 102, App. C 32 CFR Ch. I (7–1–97 Edition)

years, that IADT shall be not less than 12 22. Trained Strength in Units. Those person- weeks and start, insofar as practical, within nel (Reservists, AGR, and AC) assigned to 270 days after enlistment. IADT for all other units who, in the case of enlisted members, enlistees and inductees shall begin within 360 have completed IADT of 12 weeks, or its days after entry into Service. Military mem- equivalent, and are eligible for deployment bers may not be assigned to AD on land out- overseas on land when mobilized under prop- side the United States or its territories and er authority. Excludes personnel in possessions until basic training or its equiva- nondeployable accounts or a training pipe- lent has been completed. line. 13. Key Employee. Any Reservist identified 23. Training and Retired Category (TRC). The by his or her employer, private or public, as category identifying (by specific TRC des- filling a key position. ignator) a Reservist’s training or retirement 14. Key Position. A civilian position, public status in a RCC and a RC. or private (designated by the employer IAW 24. Training Period. An authorized and DoD Directive 1200.7) that cannot be vacated during war or national emergency. scheduled regular IDT period. A training pe- 15. Multiple IDT Periods (MIDTPS). Two riod must be at least 4 hours. Previously scheduled IDT periods performed in 1 cal- used interchangeably with other common endar day, each at least 4 hours in duration. terms such as drills, drill period, assemblies, No more than two IDT periods may be per- or periods of instructions, etc. formed in 1 day. 25. Training Pipeline. An RCC designation 16. Nondeployable Account. An account that identifies officers in professional or fly- where Reservists (officer and enlisted) either ing training and untrained enlisted person- in units or as individuals are assigned to a nel who have not completed IADT of 12 RCC or a TRC, when the individual has not weeks, or its equivalent. See also completed IADT or its equivalent. Reservists ‘‘nondeployable account,’’ definition 16., in a nondeployable account are not consid- above. ered as trained strength assigned to units or 26. Training Unit. A unit established to pro- mobilization positions and are not vide military training to individual Reserv- deployable overseas on land with those units ists or to RC units. or mobilization positions. See also ‘‘training 27. Unit. For an RC of the Armed Forces, pipeline,’’ definition 25., below. denotes a Selected Reserve unit organized, 17. Nonprior Service (NPS) Personnel. Indi- equipped, and trained for mobilization to viduals without any prior Military Service, serve on AD as a unit or that augments or who have not completed IADT or its equiva- shall be augmented by another unit. Head- lent, and who receive a commission or war- quarters and support functions without warrant in, or enlist directly into, a U.S. Armed time missions are not considered units for Force. accounting for units and individuals in the 18. Qualifying Years Creditable for Retired Selected Reserve. Pay. The time Guardsman or Reservist must 28. Voluntary Training. Training in a non- serve to be eligible for retired pay at age 60 pay status for IRRs and active status Stand- years. Individuals must have at least 20 by Reservists. Participation in voluntary years of service in which they received at training is for retirement points only and least 50 retirement points, and the last 8 may be achieved by training with Selected years of years of service must have been Reserve or voluntary training units; by ADT; served in a RC. by completion of authorized military cor- 19. Reserve Component (RC) Category (ROC). respondence courses; by attendance at des- The category that identifies an individual’s ignated courses of instruction; by performing status in a RC. The three RCCs are Ready equivalent duty; by participating in special Reserve, Standby Reserve, and Retired Re- military and professional events designated serve. Each Reservist is identified by a spe- by the Military Department; or by partici- cific RCC designation. 20. Reserve Components (RCs). RCs of the pating in authorized civil defense activities. U.S. Armed Forces are, as follows: Retirees may voluntarily train with organi- a. The ARNG of the United States. zations to which they are properly pre- b. The USAR. assigned by orders for recall to AD in a na- c. The U.S Naval Reserve (USNR). tional emergency or declaration of war. Such d. The U.S. Marine Corps Reserve training shall be limited to that training (USMCR). made available within the resources author- e. The ANG of the United States. ized by the Secretary concerned. f. The U.S. Air Force Reserve (USAFR). 29. Voluntary Training Unit or Reinforcement g. The U.S. Coast Guard Reserve (USCGR). Training Unit. A unit formed by volunteers to 21. Secretary of Military Department. The provide RC training in a nonpay status for Secretaries of the Army, the Navy, and the IRRs and active status standby Reservists Air Force; or the Secretary of Transpor- attached under competent orders and par- tation, when the Coast Guard is operating as ticipating in such unit for retirement points. a DoT Agency. Also called ‘‘reinforcement training unit.’’

490 Office of the Secretary of Defense Pt. 102, App. D USCGR USAFR ANG USMCR Currently used by USNR ATEGORIES C USAR XXXXX XXXXX ARNG XX XXXXXXX XXXXXXX XXXXXXX ETIREMENT R . . Remarks . erence (g)) requires 15 days quired to attend drills. (Includes Navy Tars and ADSW, USCGR TEMAC and special active duty for training (SADT), Marine Corps FTS and all statutory tours.) be accomplished on weekends, at is limited to 12 days by policy. Replaces previous TRCs A, B, C, and D for IMAs second part of split training and Army one-station unit training (applies to TRCs F, Q, and P) with or without pay (reference (d)) requires 14 days RAINING AND 32 U.S.C. 502 (ref- AGR may be re- Unless training can Enlisted. Includes Includes personnel 10 U.S.C. 270(a) (1) , T . ESERVE ...... X...... X X X X X X nually R days (include travel) 14 days (exclude travel) days (exclude travel) ber of days at required an- Minimum num- Guard, 15 Reserve±12 to N/A N/A N/A Reserve, 14 . . UTHORIZED ...... annually tween 0 and 48 days each year, as determined by service policy to perform IDT to be determined by DoD component policy riods required ber of IDT pe- Minimum num- N/A IDT varies be- 0 ...... Not authorized Minimum IDT 48 102ÐA ART ...... P rently on IADT awaiting IADT awaiting IADT and authorized to perform IDT units TO Comprised of AGR IMAs Personnel cur- Personnel Personnel Individuals in D des- TRC ignator G B F L P A PPENDIX A . . . ignator dividuals, nonunit pipeline, nondeployable account units RCC des- TÐtrained in- UÐtraining SÐtrained in . reserve RC sub- category Selected . RCC reserve Ready

491 Pt. 102, App. D 32 CFR Ch. I (7–1–97 Edition) USCGR USAFR ANG USMCR Currently used by ÐContinued USNR X USAR XXXXX ATEGORIES C ARNG XXXXXXXX . . ETIREMENT . R Remarks . voluntarily participate in training for retirement points and promotion with or without pay. Required training may not exceed 30 days each year (10 U.S.C. 270(a)(2), reference (d)) (Navy tar personnel or Marine Corps platoon leader class members who are also permited to be members of a selected reserve unit trained member in other training programs including chaplains, medical, health professional stipend, and early commissioning. Must meet the same training requirements as TRC A reservists IRR members may Includes NPS AGR Senior ROTC cadets Selected reserve un- RAINING AND , T ...... X...... X X X X X X nually A. A. ber of days at required an- Minimum num- N/A N/A Same as TRC Same as TRC ESERVE . R ...... 1 ...... annually DoD component policy riods required ber of IDT pe- Minimum num- N/A 48 Determined by 48 48 UTHORIZED . . . . . 102ÐA members of the ready reserve not in selected reserve (includes officers awaiting AD or selected reserve assignment) awaiting second part of IADT on, or awaiting IADT a simultaneous membership other training programs Comprised of Individual Personnel AGR currently Individuals in Personnel in ART P TO des- TRC ignator Q S T X D ...... E PPENDIX ignator A RCC des- RÐIRR . ING RC sub- category IRR and RCC

492 Office of the Secretary of Defense Pt. 102, App. D XXXXX XXXXX XXX X . . . . only, per DoD directive 1200.7 (reference (n)). Active standby members may voluntarily train for points without pay and are eligible for promotion advocate general (JAG) schooling, education delay, ROTC assignment delay, Army early commissioning program, Coast Guard direct commission candidates, Marine platoon leader class grams. Requires 45 days AD annually. Section 2121(c) of reference (d) and DoD directive 1215.4 (reference (s)) muster with assigned unit. May not train for points or pay and are not eligible for promotion Key employees, Chaplain and judge AFHP stipend pro- Must meet annual ...... specific program As required by 45 days ...... X X X X X 0 ...... 0 ...... 0 ...... 0 ...... 0 ...... 1 ...... list members of the IRR. (DEP) section 513 of reference (d) in the selected reserve participating in officer training programs in the selected reserve participating in AFHP stipend programs Active status Untrained Personnel not Personnel not ING H K J .. C ...... I . serve training YÐstandby PÐready re- IÐING . reserve Standby

493 Pt. 102, App. D 32 CFR Ch. I (7–1–97 Edition) USCGR USAFR ANG USMCR Currently used by ÐContinued USNR USAR XXXXX XXXXX XXXXX XXXXX XXXXX ATEGORIES C ARNG . . ETIREMENT . . . R Remarks who have completed 20 qualifying years creditable for retired pay, are 60 years, or more, of age, and are drawing retired pay members to inactive status list instead of separation under 10 U.S.C. 1209, chapter 61 (reference (d)). Inac- tive standby members may not train for points with or without pay and are not eligible for promotion members who have completed 20 qualifying years creditable for retired pay, but are not yet 60 years of age, or are age 60 and have not applied for pay Reserve members Other active status Members transferred Other inactive status Reserve members RAINING AND , T ...... nually ber of days at required an- Minimum num- N/A N/A ESERVE R ...... annually riods required ber of IDT pe- Minimum num- N/A 0 ...... 0 ...... 0 ...... 0 ...... 0 ...... 0 ...... N/A UTHORIZED . . . . . 102ÐA serve retired pay under 10 U.S.C. 1331 (reference (d)) list list list retired pay, but eligible at age 60, under section 1331 of reference (d) Comprised of Drawing re- Active status Inactive status Inactive status Not drawing ART P TO des- TRC ignator D L N 2 D ..... 1 PPENDIX ignator A RCC des- VÐretired RC sub- category . RCC reserve Retired

494 Office of the Secretary of Defense Pt. 102, App. D XXXXX XXXXX . . retired for physical disability under sections 1201, 1202, 1204, or 1205 of reference (d). Member who have 20 years of service creditable for retired pay or are more than 30± percent disabled who have completed 20, or more, years of AD service and retired under 10 U.S.C. 3911, 3914, 6323, 6330, 8911, or 8913 (reference (d)). Does not include regular Army and Air Force enlisted personnel with between 20 and 30 years of military service; and regular and reserve Navy and Marine Corps enlisted personnel in the fleet reserve (Navy) and fleet Marine Corps reserve with between 20 and 30 years of service Reserve members Reserve members ...... N/A N/A ...... N/A N/A . . bers retired for physical disability bers who have completed 20, or more, years of AD Reserve mem- Reserve mem- 3 4 . serve VÐretired re-

495 Pt. 102, App. D 32 CFR Ch. I (7–1–97 Edition) USCGR USAFR ANG USMCR Currently used by ÐContinued USNR USAR XXXXX ATEGORIES C ARNG . ETIREMENT R Remarks drawing retirement pay based on retirement for reasons other than age, service requirement or physical disability, as authorized by the ASD(RA) Reserve personnel RAINING AND , T ...... nually ber of days at required an- Minimum num- N/A ESERVE R ...... annually riods required ber of IDT pe- Minimum num- N/A UTHORIZED . 102ÐA serve retired pay under other than section 1331 of reference (d), or other than reasons of physical disability Comprised of Drawing re- ART P TO des- TRC ignator 5 D PPENDIX ignator A RCC des- RC sub- category RCC

496 Office of the Secretary of Defense § 103.2

PART 103—ENLISTMENT, APPOINT- in their original priority. However, ex- MENT, AND ASSIGNMENT OF IN- ceptions to these policies may be made DIVIDUALS IN RESERVE COMPO- when, in the best judgment of those re- NENTS sponsible for the procurement of reserve personnel, an applicant’s prior Sec. military service or significant civilian 103.1 Purpose and applicability. training or experience in the occupa- 103.2 Policy. tional skill concerned is considered to warrant it. In such cases, notation as § 103.1 Purpose and applicability. to the basis of the exception shall be This part provides standards, proce- made in the individual’s service record. dures, and priority guidelines for en- (1) Members of the Selected Reserve listment, assignment or appointment who desire to reenlist. of individuals in units of the Reserve (2) Members of Selected Reserve Components of the Military Depart- units applying for transfer from an- ments. other locality. (10 U.S.C. 510, 511; sec. 301, 80 Stat. 379, 5 (3) Members of the Selected Reserve U.S.C. 301) who were relieved from assignment to [36 FR 22576, Nov. 25, 1971] units due to reorganization, inactiva- tion, or relocation of their units. § 103.2 Policy. (4) Members of the Ready Reserve (a) Physical and mental standards for Pool. male personnel enlisted in the basic en- (5) Prior service applicants. listment pay grade will not be higher (6) Nonprior service individuals who than those prescribed by the Military have not undergone random selection Selective Service Act of 1967, or DOD for induction (includes all qualified fe- Directive 1145.1, ‘‘Qualitative Distribu- male nonprior service applicants), or tion of Military Manpower,’’ Septem- ber 13, 1967, 1 which establish minimum who have undergone random selection standards for acceptability into the for induction and have passed through regular services. Higher physical and their full year of vulnerability without mental standards may be specified by induction. the appropriate Secretary of a Military (7) Nonprior service individuals who Department for initial enlistment in a have undergone random selection for grade higher than the basic enlistment induction but have not yet passed pay grade or for enlistment in a pro- through their full year of vulner- gram leading to a commission. ability. (b) The appropriate Secretary shall, (d) In conjunction with the policies except as otherwise provided by law, in paragraph (c) of this section, the prescribe physical, mental, moral, aca- Secretaries of the Military Depart- demic attainment, professional and age ments will require their Reserve Com- qualifications for appointment of re- ponents to actively recruit qualified serve members of the Armed Forces of individuals of all races, creeds, and eth- the United States. nic groups toward the end that all (c) The enlistment of individuals units shall generally reflect the char- under the provisions of section 511(a) or acter of the population in the unit’s re- 511(d) of title 10 U.S. Code, and the as- cruiting area. signment of applicants to units of the Ready Reserve shall normally be in ac- (e) Prior to enlisting a draft-liable cordance with the order of priorities individual in one of the Reserve Com- listed below. Applicants in categories ponents, the applicant shall be required (1) through (6) may be enlisted without to sign a written statement to the ef- regard to their date of application. fect that he has not received orders to Nonprior service applicants in category report for induction, that any subse- (7) who are accepted on reserve unit en- quent receipt of such orders will be re- listment waiting lists will be retained ported to his unit commander, and that he understands he is subject to an in- 1 Filed as part of original. duction order if issued before he enlists. 497 (1) An individual who enlists in a Re- serve Component and who subsequently § 103.2 32 CFR Ch. I (7–1–97 Edition) receives orders to report for induction, (1) Certification of the obligation is the issuing date of which precedes his made by the employer, sponsor, or rec- date of enlistment, shall be discharged ognized church body as appropriate. from his Reserve Component for the (2) Reserve members concerned have purpose of induction into the Armed completed their initial period of ac- Forces. tive-duty-for-training. (2) The discharge should be effected (3) The approving authority con- concurrently with the induction so as cerned is satisfied that the request is to continue the individual’s military bona fide. obligation consistent with § 50.2(d) of (4) Reenlistment contracts for such this title. individuals will include an agreement (3) The date of issuance of orders to to serve for a period of time which will report for induction shall be considered include the period of temporary, non- to be the date of mailing of such orders military obligation (not to exceed 30 by appropriate authority in the Selec- months) plus the remaining obligatory tive Service System. military service remaining under the (f) Individual applicants for assign- original enlistment contract. Such re- ment or enlistment in the Reserve enlistment contracts will assure that Components shall not be accepted un- each individual will serve a total of six less there is reasonable assurance that (6) years of reserve service as required they will be available and able to par- by law. ticipate satisfactorily in the unit concerned. In this respect careful consider- (5) The individual reservists con- ation shall be given to the geographical cerned will be carried as members of location, future plans, and possible the inactive National Guard or the conflicts with the civilian occupation Ready Reserve Pool, as appropriate, of the individual applicant. Individuals during the period of nonmilitary obli- who are engaged in or preparing for a gation, and as such, will be subject to skill listed in the Department of Labor being involuntarily ordered to active ‘‘List of Critical Occupations for duty as authorized by law (see para- Screening the Ready Reserve’’ shall graph IV.C.2 of DOD Directive 1215.13, not be enlisted unless there is an over- ‘‘Unsatisfactory Performance of Ready riding military necessity for their skill Reserve Obligation,’’ October 12, 1970. 1 consistent with part 125 of this title. (10 U.S.C. 510, 511; sec. 301, 80 Stat. 379, 5 (g) Reserve members who have en- U.S.C. 301) listed under the provisions of section 511(d) of title 10, U.S.C., and who there- [36 FR 22576, Nov. 25, 1971] after incur either a bona fide temporary, nonmilitary obligation requir- PART 105—EMPLOYMENT AND ing overseas residency outside the VOLUNTEER WORK OF SPOUSES United States, or a bona fide, tem- OF MILITARY PERSONNEL porary, religious missionary obligation which would conflict with their re- Sec. quired participation in reserve train- 105.1 Purpose. ing, may, upon their request, be reen- 105.2 Applicability. listed under the provisions of section 105.3 Definitions. 511(a) of title 10, U.S.C. Requests under 105.4 Policy. the provisions of this subsection, ex- 105.5 Responsibilities. cept those from members who incur a 105.6 Effective date and implementation. legitimate religious missionary obligation, will be approved by the Secretary AUTHORITY: 10 U.S.C. 113 note. of the Military Department concerned. SOURCE: 53 FR 15205, Apr. 28, 1988, unless Requests from members based on a re- otherwise noted. ligious missionary obligation may be approved by the local National Guard 1 Filed as part of the original document. or Reserve Component Commander. Copies available from the U.S. Naval Publi- Approval of all such requests are sub- cations and Forms Center, 5801 Tabor Ave., ject to the following requirements: Philadelphia, PA 19120, Attention: Code 300.

498 Office of the Secretary of Defense § 105.4

§ 105.1 Purpose. (b) In furtherance of this policy. (1) In discharging their responsibilities, This part implements Pub. L. 100–180 members of military promotion, con- and reissues Secretary of Defense tinuation, and similar personnel selec- Memorandum for Secretaries of the tion boards are prohibited from consid- Military Departments, ‘‘Employment ering the marital status of a military of Spouses of Members of the Armed member, or the employment, edu- Forces,’’ October 22, 1987 and Secretary cational, or volunteer service activities of Defense Memorandum for Secretar- of a member’s spouse. ies of the Military Departments, ‘‘Em- (2) Personnel decisions, including ployment of Spouses of Members of the those related to the assignments of Armed Forces,’’ December 30, 1987. military members, shall not be affected, favorably or adversely, by the § 105.2 Applicability. employment, educational, or volunteer This part applies to the Office of the service activities of a member’s spouse, Secretary of Defense (OSD), the Mili- or solely by reason of a member’s mari- tary Departments (including their Na- tal status, subject to the following tional Guard and Reserve components), clarification: the Organization of the Joint Chiefs of (i) When necessary to ameliorate the Staff (OJCS), the Unified and Specified personal hardship of a member or Commands, the Defense Agencies, and spouse upon the request of the member the DoD Field Activities (hereafter re- concerned, such as when a family mem- ferred to as ‘‘DoD Components’’). ber requires specialized medical treatment, educational provisions under § 105.3 Definitions. DoD Instruction 1342.12 1 and Pub. L. DoD official. Any commander, super- 94–142, or similar personal preference visor, or other military or civilian offi- accommodations. cial of a DoD Component. (ii) To facilitate the assignment of Marital status. Married, single, di- dual-career military married couples vorced, widowed, or separated. to the same geographic area. (iii) When otherwise required by law, Military Services. The Army, Navy, such as instances in which a prohibited Air Force, Marine Corps, and Coast conflict of interest may exist between Guard (when operating as a part of the the official duties of a military mem- Navy). ber and the employment of the mem- Spouse. The husband or wife of a mili- ber’s spouse. tary member, if such spouse is not also (iv) When the Assistant Secretary of a military member. Defense (Force Management and Per- sonnel), with the concurrence of the § 105.4 Policy. General Counsel, determines, on a case- (a) No DoD official shall, directly or by-case basis, for reasons of national indirectly, impede or otherwise inter- security, that marital status is an es- fere with the right of a spouse of a sential assignment qualification for military member to pursue and hold a particular military billets or positions. job, attend school, or perform volun- (3) Performance appraisals on mem- teer services on or off a military instal- bers of the Military Services, including lation. Moreover, no DoD official shall officer and enlisted efficiency or fitness use the preferences or requirements of reports, shall not contain any informa- a DoD Component to influence, or at- tion regarding the employment, edu- tempt to influence, the employment, cational, or volunteer service activities educational, or volunteer service deci- of the member’s spouse, or reflect fa- sions of a spouse. Neither such decision vorably or adversely on the member of a spouse, nor the marital status of based solely on the member’s martial the member, shall affect, favorably or status. adversely, the performance appraisals or assignment and promotion opportu- 1 Copies may be obtained, if needed, from nities of the member, subject to the the U.S. Naval Publications and Forms Cen- clarification in paragraph (b)(2) of this ter, Attn: Code 1052, 5801 Tabor Avenue, section. Philadelphia, PA 19120.

499 § 105.5 32 CFR Ch. I (7–1–97 Edition)

§ 105.5 Responsibilities. (b) It applies only to personal services contracts awarded under 10 U.S.C. (a) The Secretaries of the Military 1091 for direct health care providers. Departments and the Heads of other DoD Components shall ensure compli- § 107.3 Definitions. ance with this part. (a) Personal Services Contract. A con- (b) The Secretaries of the Military tract that, by its express terms or as Departments shall issue regulations, administered, makes the contractor enforceable under the Uniform Code of personnel appear, in effect, to be gov- Military Justice (UCMJ), and appro- ernment employees. priate regulations or other guidance (b) Direct Health Care Providers. applicable to civilian personnel, imple- Health services personnel who partici- menting this part. pate in clinical patient care and serv- (c) The Assistant Secretary of De- ices. This does not include personnel fense (Force Management and Person- whose duties are primarily administra- nel) (ASD(FM&P)) shall monitor com- tive or clerical, nor personnel who pro- pliance with this part. vide maintenance or security services.

§ 105.6 Effective date and implementa- § 107.4 Policy. tion. (a) It is the policy of the Department This part is effective February 10, of Defense that when in-house sources 1988. The Secretaries of the Military are insufficient to support the medical Departments shall forward two copies mission of the Military Departments, of implementing documents to the As- personal services contracts under 10 sistant Secretary of Defense (Force U.S.C. 1091 may be executed. Management and Personnel) within 60 (b) It is the purpose of personal serv- days. ices contracts to facilitate mission accomplishment, maximize beneficiary PART 107—PERSONAL SERVICES access to military MTFs, maintain AUTHORITY FOR DIRECT HEALTH readiness capability, reduce use of the CARE PROVIDERS Civilian Health and Medical Program of the Uniformed Services (CHAMPUS), Sec. and enhance quality of care by promot- 107.1 Purpose. ing the continuity of the patient/pro- 107.2 Applicability and scope. vider relationship. 107.3 Definitions. (c) Personal services contractors 107.4 Policy. shall be subject to the same quality as- 107.5 Procedures. surance, credentialing processes, and 107.6 Responsibilities. other standards as those required of ENCLOSURE 1—TABLE OF AUTHORIZED COM- military health care providers. In addi- PENSATION RATES tion, providers, other than para-professionals, must be licensed in accordance AUTHORITY: 10 U.S.C. 1091; Federal Acquisi- tion Regulation (FAR), part 37. with State or host country requirements to perform the contract services. SOURCE: 50 FR 11693, Mar. 25, 1985, unless (d) In establishing lines of authority otherwise noted. and accountability, DoD supervisors may direct the activities of personal § 107.1 Purpose. services contractors on the same basis This part establishes policy under 10 as DoD employees. However, the rights, U.S.C. 1091, ‘‘Contracts For Direct benefits, and compensation of personal Health Care Providers,’’ and assigns re- services contractors shall be deter- sponsibility for implementing the au- mined solely in accordance with the thority for personal services contracts personal service contract. for direct health care providers. (e) Requests for personal services contracts contemplating reimburse- § 107.2 Applicability and scope. ment at the maximum rate of basic pay (a) This part applies to the Office of and allowances under 10 U.S.C. 1091 the Secretary of Defense (OSD) and the shall be approved at the major com- Military Departments. mand level. The 0–6 grade shall be used

500 Office of the Secretary of Defense Pt. 107, Encl. 1 sparingly and subsequently will be sub- a particular type of service is based on ject to review. objective criteria and is not susceptible to individual favoritism shall be § 107.5 Procedures. stressed. (a) Each contract under 10 U.S.C. 1091 (b) The Office of the Assistant Sec- with an individual or with an entity, retary of Defense (Health Affairs) such as a professional corporation or (OASD(HA)) shall be responsible for partnership, for the personal services monitoring the personal services con- of an individual must contain language tracting program. specifically acknowledging the individual as a personal services contractor ENCLOSURE 1—TABLE OF AUTHORIZED whose performance is subject to super- COMPENSATION RATES vision and direction by designated offi- Compensation rate cials of the Department of Defense. not to exceed (b) The appearance of an employer- Occupation/specialty group Pay Years of serv- employee relationship created by the grade ice DoD supervision of a personal services contractor will normally support a lim- I. Physicians and dentists ...... 0±6 Over 26. II. Other individuals, including nurse 0±5 Over 20 but ited recognition of the contractor as practitioners, nurse anesthetists, less than equal in status to a DoD employee in and nurse midwives, but exclud- 22. disposing of personal injury claims ing paraprofessionals. III. All registered nurses, except 0±4 Over 16 but arising out of the contractor’s perform- those who are included in Group less than ance. Personal injury claims alleging II. 18. negligence by the contractor within IV. Paraprofessionals ...... 0±3 Over 6 but the scope of his or her contract per- less than 8. formance, therefore, will be processed as claims alleging negligence by DoD PART 110—STANDARDIZED RATES military or civil service personnel. OF SUBSISTENCE ALLOWANCE (c) Compensation for personal services contractors under 10 U.S.C. 1091 AND COMMUTATION INSTEAD shall be within the limits established OF UNIFORMS FOR MEMBERS OF in the Table of Authorized Compensa- THE SENIOR RESERVE OFFICERS’ tion Rates (see enclosure 1). Prorated TRAINING CORPS compensation based upon hourly, daily, or weekly rates may be awarded when Sec. a contractor’s services are not required 110.1 Reissuance and purpose. on a full-time basis. In all cases, how- 110.2 Applicability. ever, a contractor may be compensated 110.3 Policy. 110.4 Responsibilities. only for periods of time actually de- 110.5 Procedures. voted to the delivery of services re- 110.6 Information requirement. quired by the contract. (d) Contracts for personal services APPENDIX A TO PART 110—CLIMATIC ZONES entered into shall be awarded and ad- USED TO DETERMINE RATES OF COMMUTA- TION ALLOWANCE ministered pursuant to the provisions ATTACHMENT TO APPENDIX A TO PART 110— of the Federal Acquisition Regulation CLIMATIC ZONES USED TO DETERMINE (FAR), part 37 and DoD and depart- RATES OF COMMUTATION ALLOWANCE mental supplementary contracting pro- (FORMULA) visions. APPENDIX B TO PART 110—FORMULA FOR ROTC COMMUTATION RATES § 107.6 Responsibilities. APPENDIX C TO PART 110—APPLICATION OF BASIC COURSE FORMULA (MALE AND FE- (a) The Military Departments shall MALE MEMBERS) (SAMPLE) be responsible for the management of APPENDIX D TO PART 110—APPLICATION OF the direct health care provider con- ADVANCED COURSE FORMULA (MALE AND tracting program, ensuring that effec- FEMALE MEMBERS) (SAMPLE) tive means of obtaining adequate qual- APPENDIX E TO PART 110—APPLICATION OF 4- ity care is achieved in compliance with WEEK SUMMER FIELD TRAINING FORMULA the FAR, part 37. The portion of the (SAMPLE) Military Department regulations en- AUTHORITY: 10 U.S.C. 2101–2111, 37 U.S.C. suring that compensation provided for 209, 50 App. U.S.C. 456(a).

501 § 110.1 32 CFR Ch. I (7–1–97 Edition)

SOURCE: 51 FR 26886, July 28, 1986, unless (2) Develop the communication rates, otherwise noted. based on the standard Military Service uniforms, and establish procedures for § 110.1 Reissuance and purpose. rate review on an annual basis. This part reissues 32 CFR part 110 im- (3) Submit to the ASD(FM&P) an es- plementing Pub. L. 88–647, 92–171, and timate of the rates of commutation, 98–94 and updates policy, assigns re- based on the latest DLA clothing rate, sponsibilities, and prescribes proce- for climatic zones by sex and course dures for determining commutation not later than July 1 of each year. rates for Reserve Officers’ Training (4) Classify educational institutions Corps (ROTC) detachments offered as Military Colleges (MC), Civilian Col- commutation funds instead of uni- leges (CC), or Military Junior Colleges forms. (MJC), hereafter also called schools. § 110.2 Applicability. (5) Conduct inspections to ensure that the schools meet the requirements This part applies to the Office of the for the respective classifications and Secretary of Defense (OSD), the Mili- that those receiving commutation tary Departments, and the Defense Lo- funds provide quality uniforms in suffi- gistics Agency (DLA) (hereafter re- cient quantities. ferred to collectively as ‘‘DoD Compo- (6) Program and budget for subsist- nents’’). The term ‘‘Military Services,’’ ence allowance and commutation, in- as used herein, refers to the Army, stead of uniforms, for members of the Navy, Air Force, and Marine Corps. senior ROTC program. § 110.3 Policy. § 110.5 Procedures. It is DoD policy to provide subsistence allowance in accordance with Pub. (a) Classification of institutions hosting L. 92–171 and to eligible participants of Senior ROTC Units. Educational institu- senior ROTC programs and commuta- tions hosting senior ROTC units main- tion funds instead of uniforms (section tained by the Military Departments 2110, Pub. L. 88–647) for members of sen- shall be classified as essentially mili- ior ROTC programs at eligible schools. tary or civilian colleges or universities. § 110.4 Responsibilities. (1) The classification MC shall be as- (a) The Assistant Secretary of Defense signed to units established in: (Force Management and Personnel) (i) Essentially military colleges or (ADS(FM&P)), or designee, shall: universities that, for purposes of quali- (1) Administer the overall DoD ROTC fying as an MC under 50 U.S.C. App. program. 456(a)(1): (2) Maintain liaison with the Military (A) Confer baccalaureate or graduate Departments regarding the functioning degrees. of the ROTC program. (B) Require a course in military (3) Announce the standard rates of training throughout the undergraduate commutation instead of uniforms to course for all qualified undergraduate the Military Departments not later students. than August 1 each year. (C) Organize their military students (b) The Director, Defense Logistics as a corps of cadets under constantly Agency (DLA), shall provide the Mili- maintained military discipline. tary Departments during December of (D) Require all members of the corps, each year the current unit price list of including those nonmembers enrolled uniform items to be used the following in the ROTC, to be habitually in uni- fiscal year. form when on campus. (c) The Secretaries of the Military De- (E) Have as their objective the devel- partments shall: opment of the military students’ char- (1) Prescribe the standard uniform acter by means of military training items for each climatic zone, sex, and and the regulation of their conduct in course (basic and advanced) in quan- accordance with the principles of mili- tities authorized to be provided. tary discipline.

502 Office of the Secretary of Defense § 110.5

(F) In general, meet military stand- (iv) Require all members of the corps ards similar to those maintained at the of cadets to be under constantly main- Military Service academies. tained military discipline on a 24- (ii) The designation ‘‘all qualified un- hours-per-day, 7-days-per-week basis. dergraduate students,’’ under para- (v) Require all physically qualified graph (a)(i)(B) of this section means all members of the above corps of cadets physically fit students except: to be enrolled in the basic course of (A) Female students who waive their ROTC, except: right to participate as provided by Pub. (A) Female students who waive their L. 95–485, section 809. right to participate as provided by Pub. (B) Foreign nationals. L. 95–485. (C) Students who are not liable for (B) Foreign nationals. induction by virtue of having honor- (C) Students who are not liable for ably completed active training and induction by virtue of having com- service. pleted honorably active training and (D) Students who are pursuing spe- service. cial undergraduate courses beyond 4 (D) Certain categories of students are years after completing the required excused specifically by administrative military training. decisions. (E) Other students whose enrollment (E) Certain categories of students is prevented by provisions or appro- who are excused specifically by admin- priate regulations of a Military Depart- istrative decision and approved by the ment. ROTC unit commander. (2) MCs, CCs, or MJCs may be paid (2) The classification CC shall be as- the special rate of commutation only signed when units are established at ci- for those members of the corps of ca- vilian colleges and universities that dets meeting the requirements set are not operated on an essentially mili- forth in paragraph (b)(1), who are en- tary basis, but that confer bacca- rolled in ROTC. The requirements of laureate or graduate degrees. paragraphs (b)(1) (iii) and (iv), may be (3) The classification MJC shall be waived for married students, graduate assigned when ROTC units are estab- students, and day students who are not lished at essentially military schools housed with the corps of cadets. Day that provide junior college or junior students are those ROTC cadets who college and high school instruction, are authorized by university officials but DO NOT confer baccalaureate de- to reside off campus within a reason- grees. Those units shall meet all other able commuting distance to the univer- requirements of an MC. (See Pub. L. 88– sity. 647). (3) Institutions designated as MCs (b) Qualifying for the special rate of may enroll into the ROTC, of the ap- commutation. (1) To qualify for payment propriate Military Service, those stu- at the special rate of commutation in- dents who, for various reasons, are not stead of uniforms, an institution classi- required to be members of the corps of fied MC or CC shall meet in addition to cadets. These institutions shall re- paragraphs (a) (1), or (2), respectively ceive, for such student only, the stand- the requirements below. An institution ard commutation rate. The special rate classified an MJC shall meet, in addi- shall be authorized for eligible females tion to paragraph (a)(1) (except para- who elect to participate as enrolled graphs (a)(1)(i) (A) and (B)), the re- senior ROTC cadets, provided that the quirements below: requirements of paragraphs (b)(1) (ii), (i) Organize and maintain within (iii), and (iv) are met or unless these their undergradute student bodies a requirements are waived under the pro- self-contained corps of cadets. visions of paragraph (a)(1)(ii)(E). (ii) Require all members of the corps (c) Subsistence allowance and commuta- of cadets to be in appropriate uniform tion rates—(1) Subsistence allowances. at all times while on the campus. Payment that is made by the Military (iii) House all members of the corps Departments instead of rations to each of cadets in barracks separate from contract cadet enrolled in the ad- nonmembers. vanced course and for each scholarship

503 § 110.5 32 CFR Ch. I (7–1–97 Edition) cadet enrolled in the basic or advanced DLA during the previous December of course. each year can be used to develop the Payments are as prescribed in the DoD commutation rates and made available Military Pay and Allowances Entitle- to institutions for use at the beginning ments Manual, part 8, chapter 4. The of the fall term. The commutation pay- following rates are established for payment shall be made to the institutions ment of subsistence allowance: based on the number of students en- (i) Except when on summer fiel train- rolled and in attendance for at least 60 ing or practice cruises, when subsist- consecutive days. ence in kind is furnished, or when oth- (ii) Commutation rates for uniforms erwise on active duty, the subsistence shall be based on the latest approved allowance for each enrolled member of items of clothing for each climatic the advanced training program in the zone and computed using the formulas senior ROTC shall be $100 per month listed in Appendix B. Appendices C, D, for not more than a total of 20 months. and E are examples of the application (ii) Except when on summer field of the various formulas to determine training or practice cruises, when sub- the amounts that can be paid to quali- sistence in kind is furnished, the sub- fying institutions. sistence allowance for each cadet or (iii) Standard commutation rates for midshipman appointed under the finan- the basic course (first 2 years) of the cial assistance program for specially senior ROTC shall be payable in the in- selected members, under the provisions dicated amount on an annual basis not of Pub. L. 88–647, shall be $100 per to exceed 2 years to CCs that offer Mili- month for not more than a total of 20 tary Science (MS) I and II or equiva- months during the basic course train- lent. The rates shall be paid after ca- ing program and $100 per month for not dets have been enrolled 60 days. more than a total of 20 months during (iv) Standard rates for the advanced the advanced course training program course cover the 2-year period that unless the individual has been author- each member is enrolled in advanced ized extended entitlements under the course training in the senior ROTC provisions of Pub. L. 98–94. The $100 per (Appendix D). These rates shall be paid month subsistence may be authorized after cadets have been enrolled for 60 for not more than a total of 30 months days in the advanced course. Commuta- during the advanced course training tion funds for camp uniforms, if paid, program when an extended financial shall be in addition to payments for assistance entitlement is approved by the advanced course. the Military Service Secretary of the (v) Special rates of commutation Military Department concerned. shall be paid for students enrolled at (2) Commutation instead of uniforms. MCs, CCs, or MJCs fulfilling the re- Commutation is payment made by the quirements of paragraph (b). Military Departments to an institution (vi) Special rates of commutation instead of the issue of uniforms to shall be identical for all the Military ROTC cadets in accordance with Pub. Services for those qualifying institu- L. 88–647. Certain MCs, CCs, and MJCs tions defined in paragraph (b). These that maintain senior ROTC units may rates shall be three times the highest elect to receive commutation instead standard rate submitted by sex and of Government clothing. In such in- course from the Military Departments stances, the commutation rate shall infor climatic zones 1 or 2. Each Military clude not only the uniform, but the Department shall submit special rate procurement, receipt, storage, mainte- estimates for zones 1 and 2 to the As- nance, and issue of the uniform as out- sistant Secretary of Defense lined in paragraph (c)(2)(xi), and shown (ASD(FM&P), or designee, not later in Appendix B. than July 1. The special rates shall be (i) The Military Departments shall announced by the ASD(FM&P), or des- develop the commutation rates and es- ignee, not later than August 1 of each tablish procedures for their review on year. an annual basis. The review shall be (vii) Special rates of commutation scheduled during May so that the cur- for students enrolled in the basic rent unit price list disseminated by the course (MS I and II or equivalent) of

504 Office of the Secretary of Defense § 110.5

MCs, CCs, and MJCs shall be paid on an relating to the immediate past aca- annual basis not to exceed 2 years. Spe- demic year and the amount of retained cial rates for students enrolled in the uniform commutation funds (see para- advanced course (MS III and IV or graph (c)(2)(xii)(A)) have been de- equivalent) of MCs, CCs, or MJCs shall ducted. The unexpended balance shall be paid for the 2-year period that each be computed as of July 1 each year. member is enrolled in the advanced Commitments or obligations relating course. to new year procurement, mainte- (viii) Commutation for the basic nance, or other allowable activities course and the advanced course shall may not be charged against the unex- be paid based on Appendices C and D, pended balance. As an exception, the respectively. unexpended balance may be used for (ix) One-half of the special commuta- paying bills for procurements of past tion rate shall be paid to the institu- academic years that are submitted tion for those students enrolled in the AFTER the cutoff date of the report re- second year of the advanced course for quired by paragraph (c)(2)(xii)(C). whom the institution previously has (A) The amount of unexpended uni- not received commutation. form commutation funds an institution (x) The standard rates shown in Ap- may retain from 1 academic year to the pendix E for summer field training are next for continued financing of the uni- not subject to the special commutation form program is the greater of $3500 or rate adjustment. 20 percent of the uniform entitlement (xi) Commutation of uniform funds for the immediate past academic year. may be expended to support ONLY the (B) Accumulated funds that exceed following activities: this limitation shall be returned to the (A) Procurement, receipt, storage, Military Services. and issue expenses not to exceed 10 per- (C) As of July 1 of each year, a uni- cent of the cost for standard uniform form commutation report DD Form items in quantities as prescribed by the 2340, ‘‘Annual Report on Uniform Com- Secretary of the Military Department concerned, or distinctive uniforms and mutation Fund’’ shall be completed by insignia as prescribed by those institu- the institution receiving commutation tions that meet the requirements of funds and submitted to the appropriate paragraph (b). Marking up or raising authority for each Military Service by the price of that paid by an institution July 31. when items are purchased from mili- (1) The uniform commutation report tary inventories is not authorized. shall include a detailed list of expendi- (B) Alteration and maintenance of tures, total funds available for the im- the uniform, which is defined as laun- mediate past academic year, including dry, dry cleaning, renovation, alter- the unexpended balance from the last ations and sizing, not to exceed $10 per report, an explanation of any monetary uniform. adjustments and errors, the balance of (C) Salary payments to the property funds on hand, and the amount being custodian for custody of uniforms pur- refunded to the appropriate Military chased with commutation funds. Such Service as the unexpended balance, if custodial fees shall not exceed the any. The report shall be coordinated specified percent of the commutation with ROTC unit commanders and funds received against the actual en- signed by the appropriate institutional rollments in each course listed below official who maintains records of the for the immediate past academic year: receipt of funds. (1) 15 percent of basic course. (2) All records on the receipt and ex- (2) 5 percent of advance course. penditure of commutation funds shall (3) 5 percent of field training (when be subject to periodic audit and inspec- applicable). tion. Institution officials shall be re- (D) Purchase of hazard insurance to sponsive to recommendations made. protect uniform inventory against loss. (d) Inspection. Inspections shall be (xii) Unexpended commutation of conducted when an ROTC unit is ini- uniform funds is the balance remaining tially established at an institution after all commitments or obligations that does not already host another

505 § 110.6 32 CFR Ch. I (7–1–97 Edition)

Military Service ROTC unit. Inspec- 2. Arizona, except 100 mile-wide belt along tions shall ensure that only those in- south border stitutions that meet the requirements 3. Arkansas, northern one-third ° of paragraphs (a)(1) or (3), are awarded 4. California, area south of 37 north 5. Colorado the MC or MJC classification and only 6. Connecticut those awarded MC, CC, and MJC classi- 7. Delaware fications that meet the additional re- 8. District of Columbia quirements of paragraph (b) shall be 9. Idaho authorized the special rate of com- 10. Illinois mutation instead of uniforms. Inspec- 11. Indiana tions of established units at MCs, CCs, 12. Iowa 13. Kansas and MJCs shall be conducted on an ex- 14. Kentucky, NW two-thirds ception basis. 15. Maine (1) The Secretaries of Military De- 16. Maryland partments shall prescribe specific in- 17. Massachusetts spection procedures applicable to 18. Michigan ROTC units of their respective Military 19. Minnesota Services. 20. Missouri 21. Montana (2) When discrepancies are noted at 22. Nebraska institutions, their classifications shall 23. Nevada be subject to review for resolution or 24. New Hampshire withdrawal by the Secretaries of the 25. New Jersey Military Department concerned. In the 26. New Mexico, except a 100 mile-wide belt instance of withdrawal of classifica- along south border tion, the appropriate Military Service’s 27. New York review of, and final notification to, the 28. North Dakota 29. Ohio institution shall be within 30 days of 30. Oklahoma, except the southeast portion the date the discrepancy was noted. 31. Oregon 32. Pennsylvania § 110.6 Information requirement. 33. Rhode Island The reporting requirement for para- 34. South Dakota graph (c)(2)(xii)(C) is assigned OMB No. 35. Tennessee, only the northwest corner ° 0704–0200. 36. Texas, only area north of 34 north 37. Utah 38. Vermont APPENDIX A TO PART 110—CLIMATIC 39. Virginia ZONES USED TO DETERMINE RATES 40. Washington OF COMMUTATION ALLOWANCE 41. West Virginia 42. Wisconsin Zone I 43. Wyoming 1. Alabama 2. Arizona, only 100 mile-wide belt along The climate zones listed above are to be south border used as a guide to determine clothing re- 3. Arkansas, southern two-thirds quirements for a specific detachment. Wind 4. California, except area north of 37° chill equivalent temperatures can vary wide- 5. Florida ly for areas within close proximity to each 6. Georgia other due to variations in wind velocity and 7. Guam elevation. Detachment commanders may re- 8. Hawaii quest a zone change by submitting evidence 9. Kentucky, southeastern one-third to the Major Command of the appropriate 10. Louisiana Military Service that the wind chill equiva- 11. Mississippi lent temperature for the coldest month has 12. New Mexico, only 100 mile-wide belt along been within the limits of the requested zone south border classification for the past 3 consecutive 13. North Carolina years. 14. Oklahoma, only southeastern portion 15. Puerto Rico ATTACHMENT TO APPENDIX A TO PART 110— 16. South Carolina CLIMATIC ZONES USED TO DETERMINE RATES 17. Tennessee, except northwest corner OF COMMUTATION ALLOWANCE (FORMULA) 18. Texas, except area border of 34° north The Standard and special commutation rates are based on the latest approved items Zone II of clothing for each climatic zone. The zones 1. Alaska are:

506 Office of the Secretary of Defense Pt. 110, App. E

Zone Temperature range APPENDIX C TO PART 110ÐAPPLICATION OF BASIC COURSE FORMULA (MALE AND FEMALE 1 ...... 32 degrees Fahrenheit and above. 2 ...... Below 32 degrees Fahrenheit. MEMBERS) (SAMPLE)ÐContinued Zone I Zone II To determine the appropriate zone for each ROTC detachment, use the table below. Amortized package cost ...... 44.13 48.82 Enter the appropriate dry bulb temperature at the top and read down. Find the wind ve- Add: locity on the left and read across. The inter- 15% custodial fees (15% of am- section of the two lines provides the equiva- ortized package cost) ...... 6.62 7.32 lent temperature. For example, a combina- Uniform Alteration and Mainte- tion of 20 degrees Fahrenheit and a 10 mile- nance ...... 10.00 10.00 per-hour wind has a wind chill equivalent temperature of 3 degrees Fahrenheit. The Total ...... 16.62 17.32 wind chill equivalent temperature is based Net rate ...... 60.75 66.14 on the average monthly temperature and Rounded for official standard rate (per year) ...... 61.00 66.00 wind of the coldest month for each of the Special commutation rate (per year) past 3 consecutive years. (three times standard rate) ...... 183.00 198.00

APPENDIX B TO PART 110—FORMULA FOR ROTC COMMUTATION RATES APPENDIX D TO PART 110ÐAPPLICATION OF ADVANCED COURSE FORMULA (MALE AND FE- Basic Course (General Military Course) MALE MEMBERS) (SAMPLE) Total Pkg. Cost of Auth. Items+10% Procure- ment Cost=Adjusted Pkg. Cost—Amor- Zone I Zone II tized by: 2-Yr. Life Shoes & Socks; 2-Yr. Total package cost (authorized Life Insignia; 5-Yr. Life Bal. of Pkg. items) ...... $159.29 $180.62 +15% Custodial Fees+$10.00 Uniform Alter- Less insignia amortization (50% of ation and Maint.=Net Rate Per Yr. $15.00), if applicable ...... 7.50 7.50 (Rounded to nearest $) Adjusted package cost ...... 151.79 173.12 Advanced Course (Professional Officers Course) Add: Total Pkg. Cost of Auth. Items¥1⁄2 Amt. of Insignia Cost (2-yr. Amortization)+5% 5% custodial fees (5% of adjusted package cost) ...... 7.59 8.66 Custodial Fees+$10.00 Uniform Alteration Uniform alteration and mainte- & Maint.=Net Rate 2-yr. period (Rounded nance ...... 10.00 10.00 to nearest $) 17.59 18.66 Summer Camp (Field Training) Net Rate ...... 169.38 191.78 Total Pkg. Cost of Auth. Items¥Amortized Rounded official standard rate (2 by 2-yr. Life (Entire pkg., except shoes years) ...... 169.00 192.00 and socks)+5% Custodial Fees+$10.00 Uni- Special commutation rate (2 years) form Alteration & Maint.=Net Rate 2-yr. (three times standard rate) ...... 507.00 576.00 period (Rounded to nearest $) APPENDIX E TO PART 110ÐAPPLICATION OF 4- APPENDIX C TO PART 110ÐAPPLICATION OF WEEK SUMMER FIELD TRAINING FORMULA BASIC COURSE FORMULA (MALE AND FEMALE (SAMPLE) MEMBERS) (SAMPLE) Zone I Zone II Zone I Zone II Total package cost (authorized Total package cost (authorized items) ...... $36.56 $48.70 items) ...... $159.29 $180.62 Amortization Schedule: Plus 10% procurement cost ...... 15.93 18.06 Total package less $12.75 (boots and socks) (not reissued) ...... 23.81 35.95 Adjusted package cost ...... 175.22 198.68 50% amortization (2-year life) ...... 11.91 17.98 Boots and socks added ...... 12.75 12.75 Amortization: Amortized package cost ...... 24.66 30.73 2-years socks (50% of $1.28) .... .64 .64 Add: 2-years shoes (50% of 14.00) .... 7.00 7.00 2-years insignia (50% of 15.00), 5% custodial fees ...... 1.23 1.54 if applicable ...... 7.50 7.50 Uniform alteration and maintenance 10.00 10.00 5-years balance package (20% Net rate ...... 35.89 42.27 of $144.94, Zone I) (20% of Rounded for official rate ...... 36.00 42.00 $168.40, Zone II) ...... 28.99 33.68

507 § 111.1 32 CFR Ch. I (7–1–97 Edition)

PART 111—RESERVE OFFICERS’ and basic allowance for subsistence, TRAINING CORPS PROGRAM which the individual would receive if FOR SECONDARY EDUCATIONAL called to active duty. INSTITUTIONS (b) High schools. Public and private secondary educational institutions that do not fall under the definition for Sec. 111.1 Reissuance and purpose. military junior colleges and military 111.2 Applicability and scope. institute schools. 111.3 Definitions. (c) Junior ROTC. All ROTC programs 111.4 Policy. conducted at the secondary level of 111.5 Responsibilities. education. 111.6 Information requirements. 111.7 Establishment of Junior ROTC at (d) Junior ROTC unit. An organized schools. group of Junior ROTC students and ENCLOSURE 1—EXAMPLES: COMPUTATION OF faculty at one secondary school. THE JUNIOR ROTC INSTRUCTOR’S COM- (e) Military institute schools. Military PENSATION schools at the secondary level of in- AUTHORITY: 10 U.S.C. 2031, as amended. struction that: (1) Require a 4-year course in mili- SOURCE: 47 FR 36636, Aug. 23, 1982, unless tary training. otherwise noted. (2) Organize their military students § 111.1 Reissuance and purpose. as a Corps of Cadets under constantly This part is reissued to update and maintained military discipline. clarify policies for the organization (3) Require all members of the Corps, and administration of the Reserve Offi- including those members enrolled in cers’ Training Corps (ROTC) program military training, to be in appropriate in all secondary schools (hereafter uniform when on campus. called Junior ROTC), as a result of (4) Have as their objectives the devel- amendments to title 10 U.S.C. section opment of the student’s character 2031. Amendments include new viabil- through military training, the regula- ity standards for Junior ROTC units, in tion of the student’s conduct in accord- accordance with section 602 of the De- ance with the principles of military fense Appropriation Act, Fiscal Year discipline, and the meeting of military (FY) 1981, and the extension of the au- standards similar to those maintained thority for section 607 in the Defense at Military Service academies. Authorization Bill, FY 1982. (f) Military junior colleges. Schools that provide high school and college in- § 111.2 Applicability and scope. struction but do not confer bacca- (a) This part applies to the Office of laureate degrees. Junior ROTC units the Secretary of Defense and the Mili- established at these schools meet all tary Departments. The term ‘‘Military other requirements of military college Service,’’ as used herein, refers to the institutions, as defined in 32 CFR part Army, Navy, Air Force, and Marine 110, and accept and maintain a spe- Corps. cially designated program of instruc- (b) Its provisions include those insti- tion prescribed by the Military Depart- tutions with established Junior ROTC ment concerned. units and encompass the operation and (g) Multiple Junior ROTC unit. Any administration of the Junior ROTC group of units organized and sponsored program worldwide at both public and under one school system in which the private institutions. Junior ROTC program is conducted concurrently in more than one school. § 111.3 Definitions. (a) Active duty pay and allowances. § 111.4 Policy. For purposes of calculating the Junior It is the policy of the Department of ROTC instructor’s pay, active duty pay Defense to sponsor and fund the Junior and allowances shall be limited to ROTC program to provide an oppor- basic pay, basic allowance for quarters, tunity for secondary school students to allowance for variable housing (VHA), learn the basic elements and require- allowance for uniforms (enlisted only), ments for national security and their

508 Office of the Secretary of Defense § 111.7 personal obligations as Americans. The titled to not less than 1 year of credit Junior ROTC program is intended to: in the basic course of Senior ROTC (a) Develop informed and responsible when the student enters college. citizens. (e) Reimburse the institution for (b) Strengthen character. Junior ROTC instructor salaries at the (c) Promote an understanding of the rate of one-half the amount of the dif- basic elements and requirements for ference between the instructor’s re- national security. tired or retainer pay and the amount of (d) Help form habits of self-discipline. active duty pay and allowances (ex- (e) Develop respect for and an under- cluding hazardous duty pay) the in- standing of the need for constituted au- structor would receive if he or she were thority in a democratic society. ordered to active duty. (f) Develop an interest in the Mili- (f) Ensure that the provisions of tary Services as a possible career. § 111.7 are followed. (g) Account for the cost incurred by § 111.5 Responsibilities. the Department of Defense in sponsor- The Secretaries of the Military Depart- ing, conducting, or disestablishing a ments. shall: Junior ROTC unit. (a) Sponsor and conduct a Junior (h) Evaluate annually the operation, ROTC program. administration, and effectiveness of (b) Provide a fair and equitable geo- the overall Junior ROTC program and graphical distribution of their Junior the individual Junior ROTC units in ROTC units, with no more than one terms of cost and performance objec- Military Service’s Junior ROTC unit in tives. a school. (c) Prescribe a curriculum of at least § 111.6 Information requirements. 3 academic years for their Junior The theft of any military weapons or ROTC units, offering students one of ammunition from a secondary edu- the following curricular programs: cational institution shall be reported (1) Academic track (college pre- under Report Control Symbol DD– paratory). A minimum 3-year program POL(SA&AR) 1358, as prescribed in with 96 hours yearly of military in- DoD Directive 5100.76, ‘‘Physical Secu- struction. The academic track shall be rity Review Board,’’ February 10, 1981. offered only in those schools with a fully accredited program of academic § 111.7 Establishment of Junior ROTC studies, completion of which prepares at schools. the student for entry in a college offer- (a) Junior ROTC establishment. Sec- ing Senior ROTC. ondary educational institutions desir- (2) Technical track (noncollege pre- ing to establish Junior ROTC units or paratory). A minimum 3-year program to continue established units shall with 96 hours yearly of military in- agree to: struction coordinated with technical (1) Maintain a Junior ROTC enroll- courses having a military application. ment of no less than 100 physcially fit These courses may be integrated into students, or 10 percent of the number the required 96 hours of ROTC instruc- of students enrolled in the institution, tion upon approval of the Secretary of who are at least 14 years of age and are the Military Department concerned. citizens or nationals of the United (d) Prescribe advance placement. States. (1) A student presenting evidence of (2) Employ as Junior ROTC instruc- successful completion of either the tors retired officers and enlisted per- academic or technical track of Junior sonnel whose qualifications are ap- ROTC under any Military Department proved by the Secretary of the Military is entitled to advance promotion to the Department concerned to administer grade of no less than E–2 upon initial the basic military orientation courses. enlistment in an active or reserve com- Officer instructors shall possess bacca- ponent of a Military Service. laureate or higher-level degrees. This (2) A student presenting evidence of qualification may be waived for a pe- successful completion of a 3-year Jun- riod of 4 years from the time of initial ior ROTC program (either track) is en- hire or from the date of this part

509 § 111.7 32 CFR Ch. I (7–1–97 Edition)

(whichever is later), if the school au- ROTC instructors from serving on rou- thority agrees and while the instructor tine committees or from performing works toward obtaining a bachelor’s other extracurricular duties normally degree. performed by other faculty members.) (3) Pay retired personnel so em- (See enclosure 1.) ployed. The institution is the employ- (5) Compensate a Junior ROTC in- ing agency and shall pay the full structor only for the period of time he amount due the Junior ROTC instruc- or she performs duties as a Junior tor. The Junior ROTC instructor shall ROTC instructor. For periods of service receive retired or retainer pay from the as a Junior ROTC instructor for less U.S. Government. The amount due than 12 months of a calendar or fiscal from the institution is at least the year, the instructor shall be com- amount equal to the difference between pensated the difference between the retired or retainer pay and the active amount of the retirement (or retainer) duty pay and allowance that the Junior pay and active duty pay times the ROTC instructor would receive if or- length of employment as a Junior dered to active duty. The institution ROTC instructor expressed as a frac- shall be reimbursed for Junior ROTC tion of 12 months. (Refer to enclosure instructor salaries at the rate of one- 1, Examples C and D, for clarification.) half the difference of the instructor’s (6) Provide an additional amount of retirement or retainer pay and active compensation for a Junior ROTC in- duty pay and allowances. For purposes structor for only that part of the sum- of calulating a Junior ROTC instruc- mer (or interim) months, between aca- tor’s pay, ‘‘active duty pay and allow- demic sessions, during which the in- ances’’ shall be limited to the basic structor performs administrative or in- pay, basic allowance for quarters, al- structional duties that are directly re- lowance for variable housing (VHA), al- lated to the Junior ROTC program. Ad- lowance for uniforms (enlisted only), ministrative and instructional duties and basic allowance for subsistence. directly related to the Junior ROTC The level of active duty pay and allow- program that would entitle a Junior ances, less retired or retainer pay, is ROTC instructor to additional com- the minimum salary the institution pensation include, but are not limited shall pay Junior ROTC instructors. to: This should not be considered an at- (i) Administrative and instructional tempt to cap or limit the amount of duties performed in an interim term pay that may be agreed upon between Junior ROTC program, such as summer the individual Junior ROTC instructor school; and the instructor’s employer. The in- (ii) The grading of examinations and stitution may pay more than the papers during the period immediately amount equal to the difference between following the end of the school year; retired or retainer pay and the individ- and ual’s active duty pay and allowance (iii) The preparation of new course rate, but shall do so without additional materials during the period imme- entitlement for reimbursement from diately preceding the beginning of a the Federal government. (See enclo- school year. sure 1 for examples of proper computa- (7) Advise the Secretary of the Mili- tion of the Junior ROTC instructor’s tary Department concerned of any pay.) change of employment status of retired (4) Contract separately with the indi- personnel employed at an institution. vidual Junior ROTC instructor for any (8) Provide suitable safeguards for additional duties desired by the insti- the government property provided. tution beyond those connected with Such safeguards shall include, but not the instruction, operation, and admin- be limited to: istration of the Junior ROTC program, (i) Employment of clerical and main- at no cost to the Military Department tenance personnel required to issue, ac- concerned. Such additional services count for, and maintain the govern- shall be performed outside the scope of ment property. Junior ROTC duties and hours. (This (ii) Bonds or insurance (or both) to requirement does not preclude Junior cover loss and damage of the property.

510 Office of the Secretary of Defense § 111.7

(iii) Secure storage of U.S. military unit shall be authorized at least one of- weapons and ammunition in the inven- ficer and, when necessary, the Sec- tory of Junior ROTC units. Junior retary of the Military Department con- ROTC units that have U.S.-furnished cerned may authorize substitution of military weapons and ammunition in officers for enlisted instructors, and their inventory shall be inspected for conversely, within the above authoriza- physical security by the sponsoring tions. Military Department. Established se- (iii) Supervisory personnel for mul- curity standards for arms rooms, in- tiple Junior ROTC units shall be ob- cluding separate secure storage of bolts tained by organizing the multiple unit of operable weapons, shall be empha- so that these limitations are not ex- sized. ceeded. (9) Provide positive safeguards to pre- (3) Retired officer and noncommis- vent discrimination against students sioned officer instructors are employ- or instructors on the grounds of sex, ees of the school and are responsible to race, religion, or national origin. school authorities for the conduct of (10) Provide adequate facilities for the Junior ROTC program. In this re- classroom instruction, storage for the gard, however, the Secretary of the unit’s equipment (see paragraph Military Department concerned shall (a)(8)(iii) of this section, and adequate, hold the school authorities responsible suitably located drill areas, as deter- for the conduct of the program as pre- mined by the Secretary of the Military scribed. Junior ROTC instructors must Department concerned. meet Military Service requirements (11) Provide the required courses of and maintain standards acceptable to instruction and maintain the standards the Military Department concerned. prescribed by the Secretary of the Mili- (c) Eligibility of students. (1) To enroll tary Department concerned. in the Junior ROTC, students shall be (b) Junior ROTC instructors. (1) The at least 14 years old and shall meet the Secretary of the Military Department physical standards prescribed by the concerned may authorize one active duty officer, O–4 or below, and one ac- Secretary of the Military Department tive duty enlisted member, E–7 or concerned. below, to be assigned as instructor at (2) The Secretary concerned may pre- each military institute school or high scribe qualifying tests and cutoff school level of military junior college. scores for Junior ROTC training. Military institute schools and the sec- (d) Supply and maintenace. (1) The ondary level of military junior colleges Secretaries of the Military Depart- desiring additional instructors shall ments may authorize the issuance of acquire them through the employment equipment to a designated official of of retired personnel as set forth above. the educational institution concerned, Active duty personnel assigned to mili- as follows: tary institute schools and the high (i) Military equipment needed for the school level of military junior colleges prescribed military training program, count against the student-instructor provided the equipment is not needed ratio prescribed in paragraph (b)(2)(i) for training of their regular and re- of this section. serve components. (2) Authorized strength of retired of- (ii) Surplus military equipment, al- ficer and noncommissioned officer in- lied to military requirements for par- structors: ticular technical training courses (DoD (i) Single Junior ROTC units and Directive 5100.13, ‘‘Donation of Surplus each subunit of a mutiple Junior ROTC Personal Property to Educational Ac- unit shall be authorized one retired of- tivities of Special Interest to the ficer instructor per 500 enrolled ROTC Armed Services,’’ November 18, 1971), students, or major fraction thereof, when, in the judgment of the Secretary and one retired enlisted instructor per of the Military Department concerned, 100 enrolled ROTC students, or major the military training requirements is fraction thereof. warranted. (ii) As exceptions to the above, any (iii) Spare parts, tools, cleaning ma- school that qualifies for a Junior ROTC terials, technical publications, and

511 Pt. 111, Encl. 1 32 CFR Ch. I (7–1–97 Edition) other materials necessary for mainte- unit’s disestablishment, and physical nance of the equipment. termination shall be scheduled for no (iv) Necessary test materials, indi- later than the end of that academic vidual equipment, and uniforms. year. (2) The Military Department con- (f) Junior ROTC in DoD Dependents cerned shall pay transportation Schools (DoDDS) high schools. (1) The re- charges, including packaging and han- questing high school principal shall dling, for shipment to and from the in- forward applications for the establish- stitution. The institution shall pay all ment of individual Junior ROTC units other costs incident to maintenance and local storage and safeguarding of through established school channels in the property. each geographic area to the appro- (e) Disestablishment of Junior ROTC priate Military Department. units. (1) When the Secretary of a Mili- (2) The nomination of retired officer tary Department determines that a and noncommissioned officer instruc- Junior ROTC unit does not meet the tors shall be in accordance with appli- standards specified in appropriate Mili- cable regulations of the Military De- tary Service directives (other than for partments. The respective Military De- enrollment), school authorities con- partments shall submit the names of cerned shall be notified that the unit nominees to the Director, DoDDS, has been placed on a 1-year probation- ATTN: Teacher Recruitment, for final ary status. Disestablishment of the selection and appointment to positions unit shall be effective at the conclu- in the DoDDS high schools. Junior sion of the probationary period if the ROTC instructors shall be employed in reason for the probationary status has accordance with part 69 of this title. not been resolved. (3) In addition to meeting Military (2) Junior ROTC units that are in at least their 2nd year of enrollment and Department qualifications, each appli- do not have the statutory minimum of cant for a Junior ROTC instructor po- 100 students, or 10 percent of the num- sition must meet the criteria required ber of students enrolled in the institu- by the North Central Accreditation As- tion, who are at least 14 years of age, sociation of Colleges and Secondary whichever is less, shall be placed on Schools (NCA). NCA criteria may be probation immediately. No later than obtained from the Director, DoDDS, the end of the academic year, the Mili- Office of the Assistant Secretary of De- tary Department concerned shall fense (Manpower, Reserve Affairs, and evaluate the unit’s potential to attain Logistics). the minimum enrollment upon the opening of school in the fall. If it is ENCLOSURE 1—EXAMPLES: COMPUTATION likely the enrollment minimum will OF THE JUNIOR ROTC INSTRUCTOR’S not be met, the Military Department COMPENSATION concerned shall encourage school authorities to concur in disestablishment The computation of the amount due to the of the unit at the end of that current Junior ROTC instructor, from the U.S. Gov- school year. The Military Department ernment and the institutions is illustrated in concerned shall make the final deter- the examples provided below. mination as to the school’s capability Example A: A Junior ROTC instructor agrees to instruct, administer, and operate a to meet the enrollment minimum. Junior ROTC unit for 12 months at Murray When the Military Department’s eval- High School. Murray High School remains uation indicates that minimum enroll- open 12 months of the year without the usual ment probably will be met at the be- summer recess. ginning of the fall school term, the unit may be continued. However, no later than 30 days following the beginning of the next school term, the spon- Due to the Junior ROTC Instructor: From the U.S. Government: soring Military Department shall de- • Annual military retirement pay ...... $20,000 termine whether the enrollment minimum has been met. If it has not, the school shall be officially notified of the

512 Office of the Secretary of Defense Pt. 111, Encl. 1

From the School District: From the School District: • Minimum due the instructor • Minimum Junior ROTC compensation (see from the institution is the dif- computation in EXAMPLE A) ...... 3 8,000 ference between the annual • Any additional compensation for Junior retirement pay and what the ROTC-related responsibilities ...... 4,000 instructor would earn annually • Compensation for separately contracted if called to active duty: responsibilities related to coaching the Active duty pay and allow- football team ...... 2,000 ances: Junior ROTC Instructor's Total Compensation ..... 34,000 (a) Basic pay 3 Reimbursable to the School District from the Federal Gov- (b) Basic allowance for ernment, 4,000. quarters (c) Allowance for vari- Example D: Central High School is open 9 able housing (VHA) months of the year for instruction and a (d) Allowance for uni- total of an additional month for forms (enlisted only) preregistration activities, such as preparing (e) Basic allowance for curricula and counseling students in August, subsistence and postacademic activities in June, such as (f) All other pay and al- recording permanent grades and taking in- lowances are ex- ventory on teaching materials needed for the cluded unless permitted by specific re- coming academic year. As an instructor at vision to DoD Direc- Central High School, the Junior ROTC in- tive 1205.13 structor shall participate in these required Total $28,000 ...... duties. The Junior ROTC instructor has accepted Difference: Retirement a 10-month contract with Central High pay less active duty School to provide instruction, administra- pay ...... 8,000 ...... Minimum due the in- tion, and operation of the Junior ROTC unit. structor from the insti- His compensation is calculated as follows: tution ...... 8,000

Junior ROTC Instructors's Total Com- pensation ...... 28,000 Due to the Junior ROTC Instructor: From the U.S. Government: 1 Reimbursable to the School District from the Federal Gov- • Annual military retirement pay $20,000 ernment (1¤2 of $8,000), $4,000. From the School District: Example B: If the school district in EXAM- • Minimum Junior ROTC instruc- PLE A feels that the Junior ROTC instructor tor's compensation prorated to should be compensated more than the mini- 10-month period ...... mum, they may do so. Annual military retirement pay .... $20,000 Annual pay and allowances if called to active duty ...... $28,000 ......

Due to the Junior ROTC Instructor: Annual difference ...... 8,000 From the U.S. Government: Prorated Difference: Minimum • Annual military retirement pay ...... $20,000 amount due the Junior ROTC instructor from the school From the School District: district=10¤12 of $8,000 ...... 4 $6,667 • Minimum annual compensation (see computation in Example A) ...... 2 $8,000 Junior ROTC Instructor's Total Com- • Any additional compensation for Junior pensation ...... 26,667 ROTC-related responsibilites ...... 4,000 4 Reimbursable to the School District from the Federal Gov- Junior ROTC Instructor's Total Compensation ..... 32,000 ernment (1¤2 of $6,667) $3,334. 2 Reimbursable to the School District from the Federal Gov- ernment (1¤2 of $8,000) (4,000). Example E: The Junior ROTC instructor in Example C: Murray High School wanted EXAMPLE D has elected to have his com- the Junior ROTC instructor to coach the pensation from the school district paid in 12 football team. A separate contract between equal payments during the year. This does Murray High School and the Junior ROTC not change the annual minimum compensa- instructor was written to describe any addition due from the institution as the follow- tional duties desired by the institution being computation indicates. yond those connected with the instruction, administration, and operation of the Junior ROTC unit. (See enclosure 2, subsection A.4.) Due to the Junior ROTC Instructor: From the U.S. Government: • Annual military retirement pay ...... $20,000 From the School District: Due to the Junior ROTC Instructor: • Minimum Junior ROTC instructor's com- From the U.S. Government: pensation prorated to a 10-month period • Annual military retirement pay ...... $20,000 (See computation in Example D) ...... 5 6,667

513 § 112.1 32 CFR Ch. I (7–1–97 Edition)

as used herein, refers to the Army, the Navy, the Air Force, the Marine Corps, (Paid in 12 monthly checks in the amount of $555.58 each equals $6,667) ...... and the Coast Guard. Junior ROTC Instructor's Total Compensation ..... 26,667 (b) The provisions of this part do not 5 Reimbursable to the School District from the Federal Gov- apply to: ernment (1¤2 of $6,667) $3,334. (1) Indebtedness of a member of the PART 112—INDEBTEDNESS OF Military Services to the Federal Gov- MILITARY PERSONNEL ernment. (2) Processing of indebtedness claims Sec. to enforce judgments against military 112.1 Purpose. members for alimony or child support. 112.2 Applicability and scope. (3) Claims by State or municipal gov- 112.3 Definitions. ernments under the processing guide- 112.4 Policy. lines for complaints, including tax col- 112.5 Responsibilities. lection actions. AUTHORITY: 5 U.S.C. 5520a(k) and 10 U.S.C. 113(d). § 112.3 Definitions. SOURCE: 60 FR 1721, unless otherwise noted. (a) Absence. A member’s lack of an ‘‘appearance,’’ at any stage of the judi- § 112.1 Purpose. cial process, as evidenced by failing to This part: (a) Updates policy and re- physically attend court proceedings; sponsibilities governing delinquent in- failing to be represented at court pro- debtedness of members of the Military ceedings by counsel of the member’s Services, and prescribes policy for choosing; or failing to timely respond processing involuntary allotments to pleadings, orders, or motions. from the pay of military members to satisfy judgment indebtedness in ac- (b) Court. A court of competent juris- cordance with 5 U.S.C. 5520a(k). diction within any State, territory, or (b) Establishes responsibility for pro- possession of the United States. cedures implementing 5 U.S.C. 5520a(k), (c) Debt collector. An agency or agent 15 U.S.C. 1601 note, 1601–1614, 1631–1646, engaged in the collection of debts de- 1661–1665a, 1666–1666j, and 1667–1667e scribed under 15 U.S.C. 1601 note and (‘‘Truth in Lending Act’’), and 15 U.S.C. 1692–1692o (‘‘Fair Debt Collection Prac- 1601 note, and 1692–1692o (‘‘Fair Debt tices Act’’). Collection Practices Act’’). (d) Exigencies of military duty. A mili- (c) Designates the Director, Defense tary assignment or missing-essential Finance and Accounting Service duty that, because of its urgency, im- (DFAS), as the Department of Defense portance, duration location, or isola- Executive Agent for forms necessary to tion, necessitates the absence of a process involuntary allotments. The member of the Military Services from Executive Agent shall publish, print, appearance at a judicial proceeding or stock, distribute, and revise forms. prevents the member from being able § 112.2 Applicability and scope. to respond to a notice of application for an involuntary allotment. Exigency (a) Applies to the Office of the Sec- of military duty is normally presumed retary of Defense, the Military Depart- during periods of war, national emer- ments (including the Coast Guard when gency, or when the member is de- it is not operating as a Military Serv- ployed. ice in the Navy by agreement with the Department of Transportation), the (e) Judgment. A final judgment must Chairman of the Joint Chiefs of Staff, be a valid, enforceable order or decree, the Unified Combatant Commands, the by a court from which no appeal may Inspector General of the Department of be taken, or from which no appeal has Defense, the Defense Agencies, and the been taken within the time allowed, or Department of Defense Field Agencies from which an appeal has been taken (hereafter referred to collectively as and finally decided. The judgment ‘‘the Department of Defense Compo- must award a sum certain amount and nents’’). The term ‘‘Military Services,’’ specify that the amount is to be paid

514 Office of the Secretary of Defense § 112.4 by an individual who, at the time of ap- and Part 7, Chapter 7, Section B. of De- plication for the involuntary allot- partment of Defense 7000.14–R 1, Vol- ment, is a member of the Military ume 7, Part A. Services. (2) Involuntary allotments under 5 (f) Just financial obligations. A legal U.S.C. 5520a(k) shall be established in debt acknowledged by the military accordance with this part. member in which there is no reason- (b) Whenever possible, indebtedness able dispute as to the facts or the law; disputes should be resolved through or one reduced to judgment that con- amicable means. Claimants may conforms to the Soldiers’ and Sailors’ Civil tact military members by having cor- Relief Act of 1940, as amended (50 respondence forwarded through the U.S.C. appendix sections 501–591). military locator services for an appro- (g) Member of the military services. Any priate fee, as provided under DoD In- member of the Regular Army, Air struction 7230.7.2 Force, Navy, Marine Corps, or Coast (c) The following general policies Guard, and any member of a Reserve apply to processing of debt complaints component of the Army, Air Force, (not involuntary allotments): Navy, Marine Corps or Coast Guard (in- (1) Debt complaints meeting the re- cluding the Army National Guard of quirements of this part, and procedures the United States and the Air National established by the Under Secretary of Guard of the United States) on active Defense (Personnel and Readiness), as duty pursuant to 10 U.S.C. 672, for a pe- required by 32 CFR part 113, shall re- riod in excess of 180 days at the time an ceive prompt processing assistance application for involuntary allotment from commanders. is received by the Director, DFAS, or (2) Assistance in indebtedness mat- Commanding Officer, Coast Guard Pay ters shall not be extended to those and Personnel Center. The following creditors: shall not be considered members: (i) Who have not made a bona fide ef- (1) Retired personnel, including those fort to collect the debt directly from placed on the temporary or permanent the military member; disabled retired list; and (ii) Whose claims are patently false (2) Personnel in a prisoner of war or and misleading; or missing in action status, as determined (iii) Whose claims are obviously exor- by the Secretary of the Military De- bitant; partment concerned. (3) Some States have enacted laws that prohibit creditors from contacting § 112.4 Policy. a debtor’s employer about indebtedness or communicating facts on indebted- (a) Members of the Military Services ness to an employer unless certain con- are expected to pay their just financial ditions are met. The conditions that obligations in a proper and timely must be met to remove this prohibition manner. A Service member’s failure to are generally such things as reduction pay a just financial obligation may re- of a debt to judgment or obtaining sult in disciplinary action under the written permission of the debtor. Uniform Code of Military Justice (10 (i) At Department of Defense instal- U.S.C. 801–940) or a claim pursuant to lations in States having such laws, the Article 139 of the Uniform Code of Mili- processing of debt complaints shall not tary Justice (10 U.S.C. 939). Except as be extended to those creditors who are stated in this section, and in para- in violation of the State law. Com- graphs (a)(1) and (a)(2) of this section, manders may advise creditors that this the Department of Defense Components rule has been established because it is have no legal authority to require the general policy of the Military Serv- members to pay a private debt or to di- ices to comply with State law when vert any part of their pay for satisfac- that law does not infringe upon signifi- tion of a private debt. cant military interests. (1) Legal process instituted in civil courts to enforce judgments against 1 Copies may be obtained, at cost, from the military personnel for the payment of National Technical Information Service, 5285 alimony or child support shall be acted Port Royal Road, Springfield, VA 22161. on in accordance with 42 U.S.C. 651–665, 2 See footnote 1 to § 112.4(a)(1)

515 § 112.5 32 CFR Ch. I (7–1–97 Edition)

(ii) The rule in § 112.4(c)(3)(i) shall (b) The Under Secretary of Defense govern even though a creditor is not li- (Comptroller) shall: censed to do business in the State (1) Establish, as necessary, proce- where the debtor is located. A similar dures supplemental to those promul- practice shall be started in any State gated by the Under Secretary of De- enacting a similar law regarding debt fense (Personnel and Readiness) to ad- collection. minister and process involuntary allot- (4) Under 15 U.S.C. 1601 note and 1692– ments from the pay of members of the 1692o (‘‘Fair Debt Collection Practices Military Services; this includes the au- Act’’), contact by a debt collector with thority to promulgate forms necessary third parties, such as commanding offi- for the efficient administration and cers, for aiding debt collection is pro- processing of involuntary allotments. hibited without a court order, or the (2) Ensure that the Director, DFAS: debtor’s prior consent given directly to (i) Implements procedures estab- the debt collector. Creditors are gen- lished by the Under Secretary of De- erally exempt from this requirement, but only when they collect on this own fense (Personnel and Readiness) and behalf. the Under Secretary of Defense (Comp- troller). (d) The following general policies apply to processing of involuntary allot- (ii) Considers whether the Soldiers’ ments under 5 U.S.C. 5520a(k). and Sailors’ Civil Relief Act of 1940, as (1) In those cases in which the indebt- amended (50 U.S.C. appendix sections edness of a military member has been 501–591), has been complied with under reduced to a judgment, an application 5 U.S.C. 5520a(k) prior to establishing for an involuntary allotment from the an involuntary allotment against the pay of the member may be made under pay of a member of the Military Serv- procedures prescribed by the Under ices. Secretary of Defense (Personnel and (iii) Acts as the Department of De- Readiness). Such procedures shall pro- fense Executive Agent for Department vide the exclusive remedy available of Defense forms necessary to process under 5 U.S.C. 5520a(k). involuntary allotments. (2) An involuntary allotment from a (c) The Heads of the Department of member’s pay shall not be started in Defense Components shall urge mili- any indebtedness case in which: tary personnel to meet their just finan- (i) Exigencies of military duty caused cial obligations, since failure to do so the absence of the member from the ju- damages their credit reputation and af- dicial proceeding at which the judg- fects the public image of all Depart- ment was rendered; or ment of Defense personnel. See DoD Di- (ii) There has not been compliance rectives 1000.10,3 1000.11,4 and 5500.7.5 with the procedural requirements of (d) The Secretaries of the Military the Soldiers’ and Sailors’ Civil Relief Departments shall: Act of 1940, 50 U.S.C. appendix sections (1) Establish, as necessary, proce- 501–591. dures to administer and process involuntary allotments from the pay of § 112.5 Responsibilities. members of the Military Services. This (a) The Under Secretary of Defense includes designating those command- for Personnel and Readiness shall: ers, or other officials who may act in (1) In consultation with the Under the absence of the commander, who Secretary of Defense (Comptroller), es- shall be responsible for determining tablish procedures for the processing of whether a member’s absence from a ju- debt complaints and involuntary allot- dicial proceeding was caused by exigen- ments. cies of military duty, and establishing (2) Have policy oversight on the as- appeal procedures regarding such de- sistance to be provided by military au- terminations. thorities to creditors of military personnel who have debt complaints, and 3 See footnote 1 to § 112.4(a)(1). on involuntary allotment of military 4 See footnote 1 to § 112.4(a)(1). pay. 5 See footnote 1 to § 112.4(a)(1).

516 Office of the Secretary of Defense § 113.3

(2) Require commanders to counsel AUTHORITY: 5 U.S.C. 5520a(k) and 10 U.S.C. members to pay their just debts, in- 113(d). cluding complying, as appropriate, SOURCE: 60 FR 1722, Jan. 5, 1995, unless oth- with court orders and judgments for erwise noted. the payment of alimony or child support. § 113.1 Purpose. (3) Emphasize prompt command ac- This part implements policy, assigns tion to assist with the processing of in- responsibilities, and prescribes proce- voluntary allotment applications. dures under 32 CFR part 112 governing (e) The Chief, Office of Personnel and delinquent indebtedness of members of Training, for the Coast Guard shall: the Military Services. (1) Establish, as necessary, procedures supplemental to those promul- § 113.2 Applicability. gated by the Under Secretary of De- This part applies to the Office of the fense (Personnel and Readiness) to ad- Secretary of Defense, the Military De- minister and process involuntary allot- partments (including the Coast Guard ments from the pay of members of the when it is not operating as a Military Military Services; this includes the au- Service in the Navy by agreement with thority to promulgate forms necessary the Department of Transportation), the for the efficient administration and Chairman of the Joint Chiefs of Staff, processing of involuntary allotments. the Unified Combatant Commands, the (2) Ensure that the Commanding Offi- Inspector General of the Department of cer, Coast Guard Pay and Personnel Defense, the Defense Agencies, and the Center: DoD Field Activities (hereafter re- (i) Implements procedures estab- ferred to collectively as ‘‘the DoD lished by the Under Secretary of De- Components’’). The term ‘‘Military fense (Personnel and Readiness) and Services,’’ as used herein, refers to the Chief, Office of Personnel and Training. Army, the Navy, the Air Force, the (ii) Considers whether the Soldiers’ Marine Corps, and the Coast Guard. and Sailors’ Civil Relief Act of 1940, as amended (50 U.S.C. appendix sections § 113.3 Definitions. 501–591), has been complied with under (a) Appearance. The presence and par- 5 U.S.C. 5520a(k) prior to establishing ticipation of a member of the Military an involuntary allotment against the Services, or an attorney of the mem- pay of a member of the Military Serv- ber’s choosing, throughout the judicial ices. proceeding from which the judgment (iii) Acts as the Coast Guard Execu- was issued that is the basis for a re- tive Agent for forms necessary to proc- quest for enforcement through involun- ess involuntary allotments. tary allotment. (b) Applicant. The original judgment PART 113—INDEBTEDNESS PROCE- holder, a successor in interest, or at- DURES OF MILITARY PERSONNEL torney or agent thereof who requests an involuntary allotment from a member of the Military Services pursuant Sec. 1 113.1 Purpose. to DoD Directive 1344.9. 113.2 Applicability. (c) Pay subject to involuntary allot- 113.3 Definitions. ment. For purposes of complying with 113.4 Policy. 32 CFR part 112 and 5 U.S.C. 5520a(k), 113.5 Responsibilities. pay subject to involuntary allotment 113.6 Procedures. shall be determined by: APPENDIX A TO PART 113—CERTIFICATE OF (1) Including: COMPLIANCE (i) Basic pay but excluding reduction APPENDIX B TO PART 113—STANDARDS OF for education for education benefits FAIRNESS under section 38 U.S.C. 1411 (‘‘New G.I. APPENDIX C TO PART 113—SAMPLE DD FORM Bill’’). 2653, ‘‘INVOLUNTARY ALLOTMENT APPLICA- TION’’ APPENDIX D TO PART 113—SAMPLE DD FORM 1 Copies may be obtained, at cost, from the 2654, ‘‘INVOLUNTARY ALLOTMENT NOTICE National Technical Information Service, 5285 AND PROCESSING’’ Port Royal Road, Springfield, VA 22161.

517 § 113.4 32 CFR Ch. I (7–1–97 Edition)

(ii) Special pay (including enlistment and probability. (See Black’s Law Dic- and reenlistment bonuses). tionary 2) (iii) Incentive pay. (e) Proper and Timely Manner. A man- (iv) Accrued leave payments (basic ner that under the circumstances does pay portion only). not reflect discredit on the Military (v) Readjustment pay. Service. (vi) Severance pay (including disabil- § 113.4 Policy. ity severance pay). (vii) Lump-sum Reserve bonus. (a) It is DoD policy under 32 CFR part 112 that procedures be established for (viii) Inactive duty training pay. the processing of debt complaints (2) Excluding: against members of the Military Serv- (i) Retired pay (including) disability ices and involuntary allotments from retired pay). the pay of members of the Military (ii) Retainer pay. Services. (iii) Separation pay, Voluntary Sepa- (b) An involuntary allotment shall ration Incentive (VSI), and Special not exceed the lesser of 25 percent of a Separation Benefit (SSB). member’s pay subject to involuntary (iv) Allowances paid under titles 10 allotment or the maximum percentage and 37 of the United States Code (e.g., of pay subject to garnishment proceed- Chapter 53 of title 10 and Chapter 7 of ings under the applicable State law. title 37, respectively) and other reim- (c) The amount of an involuntary al- bursements for expenses incurred in lotment under 32 CFR part 112 and this connection with duty in the Military part when combined with deductions as Service or allowances in lieu thereof. a result of garnishments or statutory (v) Payments not specifically enu- allotments for spousal support and merated in § 113.3(c)(1). child support under 42 U.S.C. 659, 661, (3) After including the items in 662, or 665, may not exceed the lesser of § 113.3(c)(1), subtracting the following 25 percent of a member’s pay subject to involuntary allotment or the maxi- pay items to compute the final earn- mum percentage of pay subject to gar- ings value of the pay subject to invol- nishment proceedings under applicable untary allotment: State law. In any case in which the (i) Federal and State employment maximum percentage would be ex- and income tax withholding (amount ceeded, garnishments and involuntary limited only to that which is necessary allotments for spousal and child sup- to fulfill member’s tax liability). port shall take precedence over invol- (ii) FICA tax. untary allotments authorized under 32 (iii) Amounts mandatorily withheld CFR part 112 and this part. Involuntary for the United States Soldiers’ and Air- allotments established under 32 CFR men’s Home. part 112 and this part shall be reduced (iv) Deductions for the Servicemen’s or stopped as necessary to avoid ex- Group Life Insurance coverage. ceeding the maximum percentage al- (v) Retired Serviceman’s Family Pro- lowed. tection Plan. (d) The Truth in Lending Act (15 (vi) Indebtedness to the United U.S.C. 1601 note, 1601–1614, 1631–1646, States. 1661–1666j, and 1667–1667e) prescribes the (vii) Fines and forfeitures ordered by general disclosure requirements that a court-martial or a commanding offi- must be met by those offering or ex- cer. tending consumer credit and Federal (viii) Amounts otherwise required by Reserve Board Regulation Z (12 CFR 226) prescribes the specific disclosure law to be deducted from a member’s requirements for both open-end and in- pay (except payments under 42 U.S.C. stallment credit transactions. In place 659, 661, 662, and 665). of Federal Government requirements, (d) Preponderence of the evidence. A greater weight of evidence that is more 2 Black’s Law Dictionary, Fourth Edition, credible and convincing to the mind. West Publishing Company, Saint Paul, Min- That which best accords with reason nesota (1952).

518 Office of the Secretary of Defense § 113.6

State regulations apply to credit transmitted by the law of the State in which actions when the Federal Reserve the obligation was incurred. Board has determined that the State (4) A foreign-owned company having regulations impose substantially simi- debt complaints shall submit with its lar requirements and provide adequate request a true copy of the terms of the enforcement measures. Commanding debt (English translation) and shall officers, with the assistance of judge certify that it has subscribed to the advocates, should check regulations of Standards of Fairness (appendix B to the Federal Reserve Board to deter- this part). mine whether Federal or State laws (5) Debt complaints that meet the re- and regulations govern. quirements of this part shall be proc- § 113.5 Responsibilities. essed by Department of Defense Com- ponents. ‘‘Processed’’ means that (a) The Under Secretary of Defense Heads of the Department of Defense for Personnel and Readiness shall mon- Components, or designees, shall: itor compliance with this part. (i) Review all available facts sur- (b) The Under Secretary of Defense rounding the transaction forming the (Comptroller) shall ensure Defense Fi- nance and Accounting Service (DFAS) basis of the complaint, including the implementation of this part. member’s legal rights and obligations, (c) The Heads of the DoD Components and any defenses or counterclaims the shall ensure compliance with this part. member may have. (ii) Advise the member concerned § 113.6 Procedures. that: (a) The following procedures apply to (A) Just financial obligations are ex- the processing of debt complaints pected to be paid in a proper and time- against members of the Military Serv- ly manner, and what the member ices. should do to comply with that policy; (1) It is incumbent on those submit- (B) Financial and legal counseling ting indebtedness complaints to show services are available under DoD Direc- that they have met the disclosure re- tive 1344.7 3 in resolving indebtedness; quirements of the Truth in Lending and Act (15 U.S.C. 1601 note, 1601–1614, 1631– (C) That a failure to pay a just debt 1646, 1661–1666j, and 1667–1667e) and Fed- may result in the creditor obtaining a eral Reserve Board Regulation Z (12 judgment from a court that could form CFR 226), and that they complied with the basis for collection of pay from the the Standards of Fairness (appendix B member pursuant to an involuntary al- to this part). lotment. (2) Creditors subject to Federal Re- (iii) If a member acknowledges a debt serve Board Regulation Z (12 CFR 226), as a result of creditor contact with a and assignees claiming thereunder, DoD Component, advise the member shall submit with their debt complaint that assistance and counseling may be an executed copy of the Certificate of available from the on-base military Compliance (appendix A to this part), banking office, the credit union serving and a true copy of the general and spe- the military field of membership, or cific disclosures provided the member other available military community of the Military Service as required by service organizations. the Truth in Lending Act (15 U.S.C. (iv) Direct the appropriate com- 1601 note, 1601–1614, 1631–1646, 1661–1666j, mander to advise the claimant that: and 1667–1667e). Debt complaints that (A) Those aspects of DoD policy pre- request assistance but do not meet scribed in 32 CFR part 112.4, are perti- these requirements will be returned nent to the particular claim in ques- without action to the claimant. tion; and (3) A creditor not subject to Federal Reserve Board Regulation Z (12 CFR (B) The member concerned has been 226), such as a public utility company, advised of his or her obligations on the shall submit with the request a certifi- claim. cate that no interest, finance charge, or other fee is in excess of that per- 3 See footnote 1 to § 113.3(b).

519 § 113.6 32 CFR Ch. I (7–1–97 Edition)

(v) The commander’s response to the (B) The applicant’s full name and ad- claimant shall not undertake to arbi- dress. If the applicant is not a natural trate any disputed debt, or admit or person, the application must be signed deny the validity of the claim. Under by an individual with the authority to no circumstances shall the response in- act on behalf of such entity. If the al- dicate whether any action has been lotment is to be in favor of a person taken, or will be taken, against the other than the original judgment hold- member as a result of the complaint. er, proof of the right to succeed to the (b) The following procedures apply to interest of the original judgment hold- the processing of involuntary allot- er is required and must be attached to ments from the pay of members of the the application. Military Services. (C) The dollar amount of the judg- (1) Involuntary allotment application. ment. Additionally, if the judgment (i) Regardless of the Service Affiliation awarded interest, the total dollar of the member involved, with the ex- amount of the interest on the judg- ception of members of the Coast Guard ment accrued to the date of applica- an application to establish an involun- tion. tary allotment from the pay of a mem- (D) A certification that the judgment ber of the Military Services shall be has not been amended, superseded, set made by sending a completed DD Form aside, or satisfied; or, if the judgment 2653, ‘‘Involuntary Allotment Applica- has been satisfied in part, the extent to tion’’ (appendix C to this part) to the which the judgment remains appropriate address listed below. Appli- unsatisfied. cations sent to any other address shall (E) A certification that the judgment be returned without action to the ap- was issued while the member was not plicant. on active duty (in appropriate cases). If (For Army, Navy, Air Force, or Marine the judgment was issued while the Corps) member was on active duty, a certifi- Defense Finance and Accounting Serv- cation that the member was present or ice, Cleveland Center, Code L, P.O. represented by an attorney of the Box 998002, Cleveland, OH 44199–8002 member’s choosing in the proceedings, or if the member was not present or (For Coast Guard only) represented by an attorney of the Coast Guard Pay and Personnel Center member’s choosing, that the judgment (LGL), 444 S.E. Quincy Street, To- complies with the Soldiers’ and Sail- peka, KS 66683–3591 ors’ Civil Relief Act of 1940, as amended (ii) Each application must include a (50 U.S.C. appendix sections 501–591). copy of the final judgment certified by (F) A certification that the member’s the clerk of court and such other docu- pay could be garnished under applica- ments as may be required by ble State law and section 5520a(k) of § 113.6(b)(1)(iv). the United States Code, if the member (iii) A garnishment summons or were a civilian employee. order is insufficient to satisfy the final (G) A certification that, to the judgment requirement of § 113.6(b)(1)(ii) knowledge of the applicant, the debt and is not required to apply for an in- has not been discharged in bankruptcy, voluntary allotment under this part. nor has the member filed for protection (iv) Involuntary allotment applica- from creditors under the bankruptcy tions must contain the following infor- laws of the United States. mation, certifications, and acknowl- (H) A certification that if the judg- edgment: ment is satisfied prior to the collection (A) The full name, social security of the total amount through the invol- number, and branch of Service of the untary allotment process, the appli- military member against whose pay an cant will provide prompt notice that involuntary allotment is sought. Al- the involuntary allotment must be dis- though not required, inclusion of the continued. member’s current duty station and (I) A certification that if the member duty address on the application form overpays the amount owed on the judg- will facilitate processing of the appli- ment, the applicant shall refund the cation. amount of overpayment to the member

520 Office of the Secretary of Defense § 113.6 within 30 days of discovery or notice of service of the military member against the overpayment, whichever, is earlier, whom an application for involuntary and that if the applicant fails to repay allotment is being processed. Addition- the member, the applicant understands ally, the DFAS official shall provide he or she may be denied the right to the due date for receipt of a response at collect by involuntary allotment on DFAS. The due date shall be 90 days other debt reduced to judgments. from the date DFAS mails the DD (J) Acknowledgment that as a condi- Form 2654 to the commander and mem- tion of application, the applicant ber concerned as provided for in agrees that neither the United States, § 113.6(b)(2)(i)(B). nor any disbursing official or Federal (B) Mail one copy of the application employee whose duties include process- package to the member and two copies ing involuntary allotment applications of the application package, along with and payments, shall be liable for any DD Form 2654, to the commander of the payment or failure to make payment military member or other official as from moneys due or payable by the designated by the Military Service con- United States to any person pursuant cerned during times of war, national to any application made in accordance emergency, deployment, or other simi- herewith. lar circumstances, who may act for the (v) The original and three copies of commander, provided the Military the application and supporting docu- Service concerned has provided DFAS ments must be submitted by the appli- with the name or position of the offi- cant to DFAS. cial and the appropriate address (here- (vi) A complete ‘‘application pack- inafter, the meaning of the term ‘‘com- age’’ (the DD Form 2653, supporting mander’’ includes such other official). documentation, and three copies of the (C) Within 60 days of mailing the cop- application and supporting documents), ies of the application package and DD is required for processing of any re- Form 2654, DFAS shall provide notice quest to establish an involuntary allot- to the member and the member’s comment pursuant to this part and 32 CFR mander that automatic processing of part 112. the involuntary allotment application (vii) Applications that do not con- shall occur if a response (including no- form to the requirements of this part tice of an approved extension as au- shall not be processed. If an application thorized in § 113.6(b)(2)(iii)(B) and (F), is is ineligible for processing, the applica- not received by the due date specified tion package shall be returned to the in Section I of DD Form 2654. In the ab- applicant with an explanation of the sence of a response, DFAS may auto- deficiency. In cases involving repeated matically process the involuntary al- false certifications by an applicant, the lotment application on the fifteenth designated DFAS official may refuse to calendar day after the date a response accept or process additional applica- was due. When DFAS has received no- tions by that applicant for such period tice of an extension, automatice proc- of time as the official deems appro- essing shall not begin until the fif- priate to deter against such violations teenth calendar day after the approved in the future. extension date. (2) Processing of involuntary allotment (D) Retain the original of the appli- applications. (i) Promptly upon receipt cation package and DD Form 2654. of DD Form 2653 (Appendix C to this (ii) Upon receipt of an application, part), the designated DFAS official the commander shall determine if the shall review the ‘‘application package’’ member identified in Section I of DD to ensure compliance with the require- Form 2654 is assigned or attached to ments of this part. If the application the commander’s unit and available to package is complete, the DFAS official respond to the involuntary allotment shall: application. If the member is not as- (A) Complete Section I of DD Form signed or attached, or not available to 2654, ‘‘Involuntary Allotment Notice respond (e.g., retired, in a prisoner of and Processing’’ (Appendix D to this war status, or in a missing in action part), by inserting the name, social se- status), the commander will promptly curity number, rank, and branch of complete Section II of DD Form 2654

521 § 113.6 32 CFR Ch. I (7–1–97 Edition) and attach appropriate documentation the Soldiers’ and Sailors’ Civil Relief supporting the determination. The Act of 1940, as amended (50 U.S.C. ap- commander will then mail the applica- pendix sections 501–591) during the judi- tion package and DD Form 2654 to cial proceeding upon which the invol- DFAS. Section II shall also be used by untary allotment application is sought. the commander to notify DFAS of ex- (2) ‘‘Exigencies of military duty’’ (as tensions beyond the due date for a re- defined in 32 CFR part 112.3(d)) caused sponse contained in Section I of DD the ‘‘absence’’ of the member from ap- Form 2654. When such extensions are pearance in a judicial proceeding form- authorized, the commander will coming the basis for the judgment upon plete Section II, make a copy of Sec- which the application is sought. tions I and II, and promptly mail the (3) Information in the application is copy to DFAS. patently false or erroneous in material (iii) Within 5 days of receipt of an ap- part. plication package and DD Form 2654 (4) The judgment has been fully satis- from the designated DFAS official, the fied, superseded, or set aside. commander shall notify the member of (5) The judgment has been materially the receipt of the application, provide amended, or partially satisfied. When the member a copy of the entire appli- asserting this defense, the member cation package, and counsel the mem- shall include evidence of the amount of ber using and completing Section III of the judgment that has been satisfied. DD Form 2654 about the following: (6) There is a legal impediment to the (A) That an application for the estab- establishment of the involuntary allot- lishment of an involuntary allotment ment (for example, the judgment debt for the lesser of 25 percent of the mem- has been discharged in bankruptcy, the ber’s pay subject to involuntary allot- judgment debtor has filed for protec- ment or the maximum percentage of tion from the creditors under the bank- pay subject to garnishment proceed- ruptcy laws of the United States, the ings under the applicable State law has applicant is not the judgment holder been received. nor a proper successor in interest to (B) That the member has 15 calendar that holder, or the applicant has been days from the date of receipt of the enjoined by a Federal or state court commander’s notice to complete Sec- from enforcing the judgment debt). tion IV of DD Form 2654. That for good (7) Or other appropriate reasons that cause shown, the commander may must be clearly specified and explained grant an extension of reasonable time by the member. (normally not exceeding 30 calendar (E) That, if the member contests the days) to submit a response. That dur- involuntary allotment, the member ing times of deployment, war, national shall provide evidence (documentary or emergency, assignment outside the otherwise) in support thereof. Further- United States, hospitalization, or other more, that any evidence submitted by similar situations that prevent the the member may be disclosed to the ap- member from obtaining necessary evi- plicant for the involuntary allotment. dence or from responding in a timely (F) That the member may consult manner, extensions exceeding 30 cal- with a legal assistance attorney, if rea- endar days may be granted. That if the sonably available, or a civilian attor- member fails to respond within the ney at no expense to the government. time allowed, the commander will note That if a legal assistance attorney is the member’s failure to respond in Sec- available, the member should imme- tion V of DD Form 2654 and send the diately arrange for an appointment. form to DFAS for appropriate action. That the member may request a rea- (C) That the member’s response will sonable delay from the commander to either consent to the involuntary allot- obtain legal assistance (in cases where ment or contest it. an approved delay will cause DFAS to (D) That the member may contest receive the member’s response after the application for any one of the fol- the due date identified in Section I of lowing reasons: DD Form 2654, the commander must (1) There has not been compliance immediately notify the designated with the procedural requirements of DFAS official of the delay, the date for

522 Office of the Secretary of Defense § 113.6 an expected response, and the reason (B) Obtain the member’s acknowledg- for the delay by completing Section II ment of counseling by having the mem- of DD Form 2654 and forwarding a copy ber sign the appropriate space on Sec- of Sections I and II to DFAS). Addi- tion III of DD Form 2654. tionally, that requests for extensions (C) Determine if the member con- of time based on the need for legal as- sents to the involuntary allotment or sistance shall be denied to members needs the time authorized under this who fail to exercise due diligence in part to review the application package seeking such assistance. and take appropriate action. If the (G) That if the member contests the member consents to the involuntary involuntary allotment on the grounds allotment, the commander shall direct that exigencies of military duty caused the member to appropriately complete the absence of the member from the ju- Section IV of DD Form 2654. The com- dicial proceeding at which the judg- mander must then complete the appro- ment was rendered, then the member’s priate item in Section V and promptly commander shall review and make the forward the completed DD Form 2654 to final determination on this contention, the designated DFAS official. and notify the designated DFAS offi- (D) Complete the appropriate items cial of the commander’s decision by in Section V of DD Form 2654 when the completing Section V of DD Form 2654 member fails to respond within the and forwarding the form to DFAS. time authorized for a response, or as- (1) In determining whether exigencies serts that exigencies of military duty of military duty caused the absence of caused the absence of the member from the member, the commander at the an appearance in the judicial proceed- level designated by the Service con- ing upon which the Involuntary Allot- cerned shall consider the definition of ment Application is sought. ‘‘exigencies of military duty’’ (as de- (1) In determining whether exigencies fined in 32 CFR part 112.3(d)). of military duty caused the absence of (2) Additionally, consideration shall the member, the commander, at the be given to whether the commander at level designated by the Service con- the time determined the military du- cerned, shall consider the definition of ties in question to be of such para- ‘‘exigencies of military duty’’ (as de- mount importance that they prevented fined in 32 CFR part 112.3(d)), the evi- making the member available to at- dence provided by the member, any tend the judicial proceedings, or ren- other reasonably available evidence dered the member unable to timely re- (e.g., a copy of the member’s personnel spond to process, motions, pleadings, record), and whether the commander at or orders of the court. the time determined the military du- (H) That if the member contests the ties in question to be of such para- involuntary allotment on any basis mount importance that they prevented other than exigencies of military duty, making the member available to at- the application package and DD Form tend the judicial proceedings, or ren- 2654 shall be returned to the com- dered the member unable to timely re- mander who shall forward it to the des- spond to process, motions, pleadings, ignated DFAS official for appropriate or orders of the court. action. (2) The evidentiary standard for a (I) That if the member fails to re- commander to determine whether spond to the commander within the existences of military duty caused the time allowed under § 113.6(b)(2)(iii)(B), absence of the member from an appear- the commander shall notify the des- ance in the judicial proceeding upon ignated DFAS official of the member’s which the Involuntary Allotment Ap- failure to respond by completing Sec- plication is sought is a ‘‘preponderance tion V of DD Form 2654, and forwarding of the evidence’’ (as defined in § 113.3(d) the form to DFAS. of this part). (iv) After counseling the member in (3) If the commander has made a de- accordance with § 113.6(b)(2)(iii)(A)–(I), termination on exigencies of military the commander shall: duty, the commander must insert in (A) Date and sign Section III of DD Section V of DD Form 2654, the title Form 2654. and address of the appeal authority.

523 § 113.6 32 CFR Ch. I (7–1–97 Edition)

(E) Promptly following the date the (5) The appellate authority shall de- member’s response is due to the com- cide an appeal within 30 days of its re- mander as determined by ceipt and promptly notify the appli- § 113.6(b)(2)(iii)(B), ensure that the DD cant in writing of the decision. The 30 Form 2654 is appropriately completed day decision period may be extended and mail the form, along with any re- during times of deployment, war, na- sponse received from the member, to tional emergency, or other similar sit- DFAS. uations. (F) Provide the member a copy of the (6) If an appeal is successful, the ap- completed DD Form 2654 within 5 days plicant must submit a written request, of mailing to the designated DFAS offi- along with a copy of the appellate cial. authority’s decision, to DFAS within (v) Upon receipt of DD Form 2654 and 15 days of receipt of the appellate any additional evidence submitted by authority’s decision. the member, the designated DFAS offi- (B) Upon receiving written notice cial shall conduct a review of the en- that an applicant has successfully ap- tire application package, DD Form pealed a commander’s determination 2654, and any evidence submitted by on exigencies of military duty that re- the member, to determine whether the sulted in denial of an involuntary al- application for an involuntary allot- lotment application, DFAS shall re- ment should be approved and estab- view the application in accordance lished. with § 113.6(b)(2)(v)(C), and determine (A) In those cases where the mem- whether the involuntary allotment ber’s commander has completed Sec- should be approved and initiated. tion V of DD Form 2654, and deter- (C) In all cases, other than as de- mined that exigencies of military duty scribed in § 113.6(b)(2)(v)(A), the des- caused the absence of the member from ignated DFAS official shall deny an in- an appearance in a judicial proceeding voluntary allotment application, and upon which the involuntary allotment give written notice to the applicant of application is sought, the designated the reason(s) for denial, if the des- DFAS official shall deny the involun- ignated DFAS official determines that: tary allotment application and provide (1) There has not been compliance the applicant written notice of the de- with the procedural requirements of nial and the reason therefor. The des- the Soldier’s and Sailor’s Civil Relief ignated DFAS official shall also advise Act of 1940, as amended (50 U.S.C. ap- the applicant that: pendix sections 501–591) during the judi- (1) The responsibility for determining cial proceeding upon which the invol- whether exigencies of military duty ex- untary allotment application is sought. isted belonged to the member’s com- (2) Information in the application is mander and the Military Department patently false or erroneous in material concerned. part. (2) The commander’s decision may be (3) The judgment has been fully satis- appealed within 60 days of the date fied, superseded, or set aside. DFAS mailed the notice of the decision (4) The judgment has been materially to the applicant. amended, or partially satisfied. In such (3) An Appeal must be submitted to a case, the request for involuntary al- the appeal authority at the address lotment may be approved only to sat- provided by DFAS (as found in Section isfy that portion of the judgment that V of the DD Form 2654) in their written remains in effect and unsatisfied; the notice of denial, and that an appeal remainder of the request shall be de- submitted to an appeal authority and nied. address different from the one provided (5) There is a legal impediment to the by DFAS may be returned without ac- establishment of the involuntary allot- tion. ment (for example, the judgment debt (4) An appeal must be submitted in has been discharged in bankruptcy, the writing and contain sufficient evidence judgment debtor has filed for protec- to overcome the presumption that the tion from the creditors under the bank- commander’s exigency determination ruptcy laws of the United States, the was correct. applicant is not the judgment creditor

524 Office of the Secretary of Defense § 113.6 nor a proper successor in interest to (A) DFAS shall collect the total judg- that creditor, or the applicant has been ment, including interest when awarded enjoined by a Federal or State court by the judgment. Within 30 days fol- from enforcing the judgment debt). lowing collection of the amount of the (6) The member’s pay is already sub- judgment, including interest as anno- ject to one or more involuntary allot- tated by the applicant in Section I of ments or garnishments that equal the DD Form 2654, the applicant may sub- lesser of 25 percent of the member’s mit a final statement of interest that pay subject to involuntary allotment accrued during the pay-off period. This or the maximum percentage of pay sub- final statement of interest request ject to garnishment proceedings under must be accompanied by a statement of the applicable State law. account showing how the applicant (7) The applicant has abused the computed the interest amount. DFAS processing privilege (e.g., an applicant, will collect this post-application inter- having been notified of the require- est provided it is an amount owed pur- ments of this part, repeatedly refuses suant to the judgment. DFAS shall not or fails to comply therewith). accept any further interest requests. (8) Or other appropriate reasons that (B) Interest or other costs associated must be clearly explained to the appli- with the debt forming the basis for the cant. judgment, but not included as an (D) In all cases other than as de- amount awarded by the judgment, scribed in § 113.6(b)(2)(v) (A) and (C), the shall not be paid to applicants for in- designated DFAS official shall approve voluntary allotments. the involuntary allotment application (v) If the member is found not to be and establish an involuntary allotment entitled to money due from or payable against the pay subject to involuntary by the Military Services, the des- allotment of the member. ignated official shall return the appli- (vi) The designated DFAS official cation and advise the applicant that no shall, at any time after establishing an money is due from or payable by the involuntary allotment, cancel or sus- Military Service to the member. When pend such allotment and notify the ap- it appears that pay subject to an invol- plicant of that cancellation if the untary allotment is exhausted tempo- member concerned, or someone acting rarily or otherwise unavailable, the ap- on his or her behalf, submits legally plicant shall be told why and for how sufficient proof, by affidavit or other- long that money is unavailable, if wise, that the allotment should not known. Involuntary allotments shall continue because of the existence of be canceled on or before the date a the factors enumerated in member retires, is discharged, or is re- § 113.6(b)(2)(v)(A) and (C)(1)–(8). leased from active duty. The des- (3) Payments ignated DFAS official shall notify the (i) Payment of an approved involun- applicant of the reason for cancella- tary allotment under 32 CFR part 112 tion. and this part shall commence within 30 days after the designated DFAS official (vi) Upon receiving notice from an has approved the involuntary allot- applicant that a judgment upon which ment. an involuntary allotment is based has (ii) Payments under this part shall been satisfied, vacated, modified, or set not be required more frequently than aside, the designated DFAS official once each month, and the designated shall promptly adjust or discontinue official shall not be required to vary the involuntary allotment. normal pay and disbursement cycles. (vii) The Under Secretary of Defense 4 (iii) If the designated DFAS official (Comptroller) may, in DoD 7000.14–R receives several applications on the Volume 7, Part A, designate the prior- same member of a Military Service, ity to be given to involuntary allot- payments shall be satisfied on a first- ments pursuant to 32 CFR part 112 and come, first-served basis. this part, among the deductions and (iv) Payments shall continue until collections taken from a member’s pay, the judgment is satisfied or until canceled or suspended. 4 See footnote 1 to § 113.3(b).

525 Pt. 113, App. A 32 CFR Ch. I (7–1–97 Edition)

except that they may not give prece- a. In the event a contract is signed with a dence over deductions required to ar- U.S. company in a foreign country, the low- rive at a member’s disposable pay for est interest rate of the State or States in garnishments or involuntary allot- which the company is chartered or does busi- ments authorized by statute for ali- ness shall apply. b. However, interest rates and service mony and child support payments. In charges applicable to overseas military the absence of a contrary designation banking facilities shall be as established by by the Comptroller, all other lawful de- the Department of Defense. ductions (except voluntary allotments 2. No contract or loan agreement shall pro- by the member) and collections shall vide for an attorney’s fee in the event of de- take precedence over these involuntary fault unless suit is filed, in which event the allotments. fee provided in the contract shall not exceed 20 percent of the obligation found due. No at- APPENDIX A TO PART 113—CERTIFICATE OF torney fees shall be authorized if the attor- COMPLIANCE ney is a salaried employee of the holder. I certify that the (Name of Creditor) upon 3. In loan transactions, defenses that the extending credit debtor may have against the original lender to —————————————————————— or its agent shall be good against any subsequent holder of the obligation. In credit on —————————————————————— transactions, defenses against the seller or (Date) its agent shall be good against any subse- complied with the full disclosure require- quent holder of the obligation, provided that ments of the Truth-in-Lending Act and Reg- the holder had actual knowledge of the de- ulation Z, and the Fair Debt Collection Prac- fense or under conditions where reasonable tices Act (or the laws and regulations of inquiry would have apprised the holder of State of llllllllll), and that the this fact. attached statement is a true copy of the gen- 4. The military member shall have the eral and specific disclosures provided the ob- right to remove any security for the obliga- ligor as required by law. tion beyond State or national boundaries if I further certify that the Standards of the military member or family moves be- Fairness set forth in DoD Directive 1344.9 1 yond such boundaries under military orders have been applied to the consumer credit and notifies the creditor, in advance of the transaction to which this form refers. (If the removal, of the new address where the secu- unpaid balance has been adjusted as a con- rity will be located. Removal of the security sequence, the specific adjustments in the fi- shall not accelerate payment of the obliga- nance charge and the annual percentage rate tion. should be set forth below.) ———————————————————————— 5. No late charge shall be made in excess of (Adjustments) 5 percent of the late payment, or $5.00, whichever is the lesser amount, or as pro- ———————————————————————— vided by law or applicable regulatory agency ———————————————————————— determination. Only one late charge may be ———————————————————————— made for any tardy installment. Late (Date of Certification) charges shall not be levied where an allot- ———————————————————————— ment has been timely filed, but payment of (Signature of Creditor or Authorized Rep- the allotment has been delayed. Late charges resentative) by overseas banking facilities are a matter ———————————————————————— of contract with the Department of Defense. (Street) 6. The obligation may be paid in full at any time or through accelerated payments of any ———————————————————————— amount. There shall be no penalty for pre- (City, State and Zip Code) payment. In the event of prepayment, that APPENDIX B TO PART 113—STANDARDS OF portion of the finance charges that has in- FAIRNESS ured to the benefit of the seller or creditor shall be prorated on the basis of the charges 1. No finance charge contracted for, made, that would have been ratably payable had fi- or received under any contract shall be in ex- nance charges been calculated and payable cess of the charge that could be made for as equal periodic payments over the terms of such contract under the law of the place in the contract, and only the prorated amount which the contract is signed in the United to the date of prepayment shall be due. As an States by the military member. alternative, the ‘‘Rule of 78’’ may be applied. 7. If a charge is made for loan insurance 1 Copies may be obtained, at cost, from the protection, it must be evidenced by delivery National Technical Information Service, 5285 of a policy or certificate of insurance to the Port Royal Road, Springfield, VA 22161. military member within 30 days.

526 Office of the Secretary of Defense Pt. 113, App. B

8. If the loan or contract agreement pro- costs shall be listed in the order form or con- vides for payments in installation, each pay- tract. ment, other than the down payment, shall be a. No termination charge shall be made in in equal or substantially equal amounts, and excess of this amount. Contracts for delivery installments shall be successive and of equal at future intervals may be terminated as to or substantially equal duration. the undelivered portion. 9. If the security for the debt is repossessed b. The purchaser shall be chargeable only and sold in order to satisfy or reduce the for that proportion of the total cost that the debt, the repossession and resale shall be governed by the laws of the State in which goods or services delivered bear to the total the security is requested. goods called for by the contract. (This is in 10. A contract for personal goods and serv- addition to the right to rescind certain cred- ices may be terminated at any time before it transactions involving a security interest delivery of the goods or services without in real estate provided by the Truth in Lend- charge to the purchaser. However, if goods ing Act (15 U.S.C. 1601 note, 1601–1614, 1631– made to the special order of the purchaser 1646, 1661–1665a, 1666–1666j, and 1667–1667e) and result in preproduction costs, or require Federal Reserve Board Regulation Z (12 CFR preparation for delivery, such additional 226)).

527 Pt. 113, App. C 32 CFR Ch. I (7–1–97 Edition)

528 Office of the Secretary of Defense Pt. 113, App. C

529 Pt. 113, App. D 32 CFR Ch. I (7–1–97 Edition)

530 Office of the Secretary of Defense Pt. 113, App. D

531 Pt. 113, App. D 32 CFR Ch. I (7–1–97 Edition)

532 Office of the Secretary of Defense Pt. 113, App. D

533 § 114.1 32 CFR Ch. I (7–1–97 Edition)

PART 114—RESERVE COMPONENTS (SMP), are excluded. Also excluded are COMMON PERSONNEL DATA individuals who have elected discharge SYSTEM (RCCPDS) after 20 creditable years instead of transfer to the Retired Reserve. The Sec. Defense Manpower Data Center 114.1 Purpose. (DMDC) shall maintain an historical 114.2 Applicability and scope. file on those individuals. 114.3 Policy. (c) Enlisted members of an active 114.4 Responsibilities. component, who also hold a Reserve 114.5 Procedures. commission, shall not be reported in 114.6 Information requirements. the RCCPDS. APPENDIX A TO PART 114—CODING INSTRUC- (d) Service members on Extended Ac- TIONS—MASTER FILE, DD–RA (M) 1147 APPENDIX B TO PART 114—TRANSACTION AND tive Duty (EAD) who are part of the ac- EDITING PROCEDURES FOR SUBMISSION tive component or assigned to the Se- TAPES lective Service System (SSS) shall not APPENDIX C TO PART 114—CODING INSTRUC- be reported. (That does not include TIONS—TRANSACTION FILE, DD–RA (M) Service members identified in 1148 § 114.5(a)(1)). APPENDIX D TO PART 114—GENERAL SPECI- FICATIONS FOR SUBMISSION TAPES § 114.3 Policy. APPENDIX E TO PART 114—QUALITY CONTROL EDIT—MASTER FILE, DD–RA (M) 1147 (a) The RCCPDS is the computerized APPENDIX F TO PART 114—QUALITY CONTROL common data base established to meet EDIT—TRANSACTION FILE, DD–RA (M) 1148 the policy requirements and to provide APPENDIX G TO PART 114—GLOSSARY statistical tabulations of Reserve com- APPENDIX H TO PART 114—RECORD LAYOUT RESERVE COMPONENTS COMMON PERSON- ponents’ strengths and related data for NEL DATA SYSTEM (RCCPDS) use throughout the Department of De- fense, other Government Agencies, the AUTHORITY: 10 U.S.C. 261, 267, 275, 511, 651, 652, 671, 1331, 6330, and 8914. Congress, and for appropriate public release by the Assistant Secretary of De- SOURCE: 56 FR 18699, Apr. 24, 1991, unless fense (Public Affairs) (ASD(PA)) (DoD otherwise noted. Directive 1205.17 1). § 114.1 Purpose. (b) The requirements and procedures prescribed by 32 CFR part 286a must be This part updates policy and stand- followed to safeguard the personnel ardize data elements affecting the data maintained in that reporting sys- RCCPDS. tem. Individuals having access to iden- § 114.2 Applicability and scope. tifiable personnel information may be held personally responsible and punish- This part applies to: (a) The Office of able under the law for making unau- the Secretary of Defense (OSD); the thorized disclosures. Military Departments (including their National Guard and Reserve compo- § 114.4 Responsibilities. nents); the Chairman, Joint Chiefs of Staff and Joint Staff; the Defense (a) The Assistant Secretary of Defense Agencies; and the U.S. Coast Guard, by (Reserve Affairs) (ASD(RA)) shall: agreement with the Department of (1) Establish policy and provide guid- Transportation (DoT), when it is not ance for Reserve Component Categories operating as a military service in the (RCCs), personnel transaction account- Navy. ing, personnel data items, definitions, (b) All officers, warrant officers, and and accuracy standards. enlisted personnel assigned to the (2) Provide policy guidance to the Ready Reserve, the Standby Reserve, DMDC on the content and use of the and the Retired Reserve. Reservists on RCCPDS including data fields, defini- Active Duty for Training (ADT) who tions, frequency, format, and the con- continue their assignment with a Re- tent of periodic and special RCCPDS serve component are included. Reserve Officer Training Corps (ROTC) mem- 1 Copies may be obtained, at cost, from the bers, who are not members of the Si- National Technical Information Service, 5285 multaneous Membership Program Port Royal Road, Springfield, VA 22161.

534 Office of the Secretary of Defense § 114.5 reports, in accordance with responsibil- (3) Prepare at the end of each month, ities detailed in DoD Directives 1205.17 and submit wthin 20 calendar days, an and 32 CFR part 379. ‘‘Officer Transaction File’’ and an ‘‘En- (3) Revise and maintain this part, as listed Transaction File’’ reflecting the necessary, to update data requirements gains, losses, reenlistments, exten- and provide accurate and effective sions, and transfers of Reserve compo- guidance on personnel data manage- nent personnel that occurred during ment to the Military Departments and the reporting month, as stated in Ap- their Reserve components. pendix C to this part. Transactions (b) The Assistant Secretary of Defense processed within 45 days of effective (Force Management and Personnel) day shall not be considered late, due to (ASD(FM&P)) shall: data lag. (1) Ensure that Reserve component (4) Edit monthly submissions accord- military personnel information re- ing to the editing concept defined in quirements for acturial valuations and appendix B to this part. for effective Total Force military per- (5) Perform a quality control valida- sonnel management are identified to tion of the data before submission to the ASD(RA). the OSD. (2) Exercise such policy guidance and § 114.5 Procedures. management supervision for the DMDC, consistent with ASD(FM&P) re- (a) The following categories of Full- sponsibilities in 32 CFR part 384, as re- Time Support (FTS) personnel shall be quired, to ensure that adequate re- reported in the RCCPDS: sources are available and used by the (1) Active Guard and/or Reserve (AGR). DMDC to fulfill its responsibilities. Guardsmen and Reservists on active (c) The Director, DMDC shall: duty to provide full time support to the (1) Operate and maintain the Ready Reserve and who are paid from RCCPDS, to include computer support, the Reserve personnel appropriations software development, quality control, of the Military Department concerned. inquiry capabilities, and administra- (2) Military Technicians. Federal civil- tive support. ian personnel of a Military Depart- ment, who occupy military technician (2) Develop, produce, and distribute positions and are members of the Re- all periodic and special RCCPDS reserve component that they support. ports. (b) As the official DoD vehicle for re- (3) Provide programming and analyt- porting Reserve component manpower ical support to the ASD(RA) for special strengths, records reported in RCCPDS studies requiring use of the RCCPDS. (as prescribed in § 114.4(d) (2) and (3)) (4) Modify the RCCPDS to reflect the may not be duplicated in other DoD- changing nature of the Reserve compo- wide strength reporting systems. Addi- nents. tionally, to support the accuracy of (5) Inform the ASD(RA) of data pro- strength data in the system, the DoD duced from the RCCPDS for other users Components shall ensure that: and of the state and quality of the in- (1) All strength-effecting changes are formation submitted by the Reserve processed and repored without delay. components. (2) All master and transaction files (d) The Secretaries of the Military De- are edited before submission following partments and the Commandant of the the procedures in appendix C to this U.S. Coast Guard (USCG) shall: part. (1) Provide their respective Reserve (c) Requests to provide specifically components with the support necessary tailored reports and inquiries to sys- to maintain a personnel data system. tem users shall be directed to the ad- (2) Prepare at the end of each month, dress in paragraph (g) of this section. A and submit within 20 calendar days, a Reserve component may not be pro- ‘‘Master Officer File’’ and ‘‘Master En- vided data relative to another Reserve listed File’’ reflecting the status of component without prior approval of each member of the Reserve compo- that Reserve component. nent as of the last day of each month, (d) Any information available to the as stated in Appendix A to this part. RCCPDS required by the SSS and the

535 § 114.5 32 CFR Ch. I (7–1–97 Edition)

Department of Veterans’ Affairs (VA) (f) RCCPDS data validity shall be en- shall be provided by magnetic tape ex- sured, as follows: tracts of data submitted in compliance (1) The following shall be critical with this part. data for all Reserve component mem- (e) Information from the RCCPDS bers, and the goal shall be 100-percent shall be provided annually to Federal validity to ensure acceptability in the Agencies screening employees who are system appendix A to this part. also Reserve component members, as prescribed by 32 CFR part 44.

Record field Data field Record position

1 ...... Reserve Component ...... 1 through 2. 2a ...... Reserve Component Category Designator ...... 3. 2b ...... Reserve Component Training-Retirement Category Designator ...... 4. 3 ...... Social Security Number ...... 5 through 13. 92 ...... Transaction Codes ...... 399 through 400.

(2) Each of the following (as applica- egory) shall have as a goal at least 98- ble in each Reserve Component Cat- percent validity:

Record field Data field Record position

6 ...... Name, Individual ...... 24 through 50. 7 ...... Date of Birth ...... 51 through 56. 8 ...... Sex ...... 57. 11 ...... Marital Status ...... 60. 13 ...... Educational Designator ...... 63. 17 ...... Date of Rank ...... 155 through 160. 18 ...... Pay Grade, Uniformed Services ...... 161 through 163. 19 ...... Pay Entry Base Date (PEBD) ...... 164 through 169. 35(a) through (d) ...... Multiple Reporting: Date of Appointment and/or Date of Expiration of En- 229 through 234. listment in Ready Reserve. 40 ...... Armed Forces Qualification Test (AFQT) Percentile Score (Enlisted 243 through 244. ONLY). 46 ...... Military Unit Designator (Unit Identification Code) ...... 251 through 258. 47 ...... States of the United States, and Countries (Unit) ...... 259 through 260. 48 ...... National Zoning Improvement Plan (Unit Zip Code) ...... 261 through 269. 66 (a), (b) ...... Year and Month, Reserve Component Incentive Program Eligibility Effec- 311 through 314. tive Date. 67 ...... Reserve Component Incentive Program Type ...... 315. 68 ...... Reserve Component Incentive Program Educational Type ...... 316. 70 ...... Active Component ``Montgomery GI Bill (MGIB)'' Enrollment status (38 323. U.S.C. chapter 30.) 76 ...... Reserve Component MGIB Eligibility Status (10 U.S.C. Chapter 106.) ..... 339. 88 ...... Notification of Eligibility for Military Retired Pay Indicator ...... 385. 89 ...... Date of Transfer to the Retired Reserve ...... 386 through 391. 90 ...... Date of Transfer to the Standby Reserve ...... 392 through 397.

(3) The goal for all remaining data (g) Magnetic tape files and the qual- fields shall be: ity control edit report (apendices E and (i) 95-percent validity for the Ready F) to this part shall be delivered by the Reserve and Standby Reserve. 20th of the month following the pre- (ii) 95-percent validity for the Re- vious report period to the following: tired Reserve eligible for pay at age 60. Defense Manpower Data Center, Attn: (4) The data validity rates §114.6(f) (1) Reserve File Manager, 99 Pacific through (3)) shall be used as standards Street, suite 155–A, Monterey, CA for judging the validity of that data 93940–3231. base and shall be provided to any audit or inspection agency reviewing their accuracy.

536 Office of the Secretary of Defense § 114.6

§ 114.6 Information requirements. Standard data elements from DoD 2 The reporting requirements for this 5000.12–M2 are being used in these re- part are assigned the following Report porting requirements where applicable. Control Symbols (RCS): Master File: DD–RA(M)1147 (See Ap- pendix A to this part). Transaction File: DD–RA(M)1148 (See Appendix C to this part). 2 See footnote 1 to § 114.3(a).

537 Pt. 114, App. A 32 CFR Ch. I (7–1–97 Edition) Ret Res Stnby Res Applicable to Irr/Ing Sel Res XXXX XXXX XXXX XXXX . . . . NM± AA NA± AA ard pending ard pending Std. data DoD Elem. DD±RA(M)1147 ...... X X X X DE± SE± Stand- Stand- ILE F 2 A 1 A 1 A 1 A 2 AN class Length ASTER 1 2 3 3±4 1±2 ÐM Record Position ...... NSTRUCTIONS I ...... ODING ...... 114ÐC . ART P TO Coding and remarks ...... A PPENDIX A ``Logical User View.'' Every effort has been made to achieve consistency and standardization of data fields structure throughout this Instruction have completed training and are assigned to a unit members who have completed training and are not assigned to a Reserve component unit enlisted) who are awaiting training, including the second part of split initial active duty for training (IADT); those Senior ROTC members who are in Simultaneous Membership Pro- gram (SMP) or Marine Corps Platoon Leader Class members; nonprior service AGR (Navy TAR Enlisted Program (TEPs) personnel; and Selected Reserve untrained personnel in other training programs in the Selected Reserve. Those include: Officers awaiting active duty (AD) or Selected Reserve assignment; members with previous Active Component or Selected Reserve Serv- ice, who have a remaining Military Service obligation or voluntarily extend their service in the IRR; untrained members of the IRR; and those who enlist directly into IRR be placed in one of the following RCCs: A=U.S. Army (USA) N=U.D. Navy (USN) M=U.S. Marine Corps (USMC) F=U.S. Air Force (USAF) P=U.S. Coast Guard (USCG) G=National Guard of the United States (Title 10 U.S.C. 267, 268, 273, and 274, (reference h)) V=Reserve The arrangement of the data fields has been established in a Ready ReserveÐ(Selected Reserve) S=Trained in UnitsÐThose Selected Reserve members who T=Trained individuals (nonunit)ÐThose Selected Reserve U=Training PipelineÐThose Selected Reservists (officers and Ready ReserveÐ(Individual Reserve (IRR)) R=IRRÐThose individual members of the Ready Reserve not See DoD Directive 1215.6 (reference (j)). Each member must ...... egory Designator (RCCD) Record field and data item a. Military Service b. Service Component (RCC) a. Reserve Component Cat- 1. Reserve Component 2. Reserve Component Category

538 Office of the Secretary of Defense Pt. 114, App. A XXXX . ard pending Stand- 1 AN ...... 4 . serve in a Ready Reserve training program, including those in officer training programs; those on education delay; in an Army Early Commissioning Program; Coast Guard direct commission Candidates; Marine Corps Platoon Leader Class (PLC); those on ROTC assignment delay; and in Health Professional Scholarship Programs (HPSP). These members have a Ready Reserve agreement, are not in the Selected Reserve, and principally are targeted for Active component assignments on completion of their training or delay status of the Army or Air National Guard (ARNG and ANG) who are unable to continue participating with their National Guard units, but are authorized to remain affiliated with those units serve on both the Active Status List and Inactive other policy, each Service member must be placed in one of the following RCTRCD: annually, are trained and assigned to a unit Administration of the Reserves (TARS) and Temporary Active Duty (TEMAC), paid from Reserve personnel appropriation, Marine Corps Full-Time Support (FTS), and all other Reserve or National Guard personnel serving on AD, including statury tours and full-time National Guard duty in AC RC organizations who drill between 0 and 48 times per year are assigned to Active component organizations on mobilization Enlisted personnel on the second part of split training and those in Army One Station Unit Training (OSUT)

P=Ready Reserve TrainingÐThose members of the Ready Re- Ready ReserveÐ(Inactive National Guard (ING)) I=INGÐThose members of the ING, including those Standby Reserve Y=Standby ReserveÐincludes members of the Standby Re- Retired Reserve V=Retired Reserve In accordance with DoD Directive 1215.6 (reference j)) and Ready ReserveÐ(Selected Reserve) Trained in UnitsÐRCC (S) A=Individuals required to perform at least 48 training periods G=Active Guard/Reserve (AGR), includes Navy Training and Trained IndividualsÐRCC(T) B=Individual Mobilization Augmentees (IMA's)ÐTrained IMAs Training PipelineÐRCC (U) F=Personnel currently on initial active duty for training (IADT). L=Personnel awaiting IADT and not authorized to perform IDT . Retirement Category Designa- tor (RCTRCD) b. Reserve Component Training/

539 Pt. 114, App. A 32 CFR Ch. I (7–1–97 Edition) Ret Res Stnby Res Applicable to Irr/Ing Sel Res Std. data DoD Elem. DD±RA(M)1147ÐContinued class Length ILE F ASTER Record Position ÐM . . . . . NSTRUCTIONS I ODING . . 114ÐC . Coding and remarks ART . P TO A . . Duty Training (IDT). Includes Service members with or without pay ice AGR (Navy TAR Enlisted Program (TEPs)) personnel Cadets or Marine Corps PLC members who are also permitted to be members of a Selected Reserve unit in the grade of ``cadet.'' Does not include Basic ROTC enrollees cluding chaplain, medical, health professional stipend, and early commissioning programs Selected Reserve ticipating in officer training programs. Excludes ROTC. In- cludes chaplain and Judge Advocate General (JAG) schooling, education delay, Reserve officers commissioned through ROTC or other programs, officer assignment delay, Army Early Commissioning Program, Coast Guard direct commissioning candidates, and Marine Corps PLC members not in SMP ticipating in the HPSP (h)) service, with less than 30 percent Service disability, and who have been transferred to the ``Inactive Status List'' instead of separation under Chapter 61 reference (h) Status List''

P=Personnel awaiting IADT and authorized to perform Inactive Q=Personnel awaiting the second part of IADT S=AGR currently on, or awaiting IADT. Includes nonprior serv- T=Simultaneous Membership Program (SMP). Senior ROTC X=Selected Reserve members in other training programs, in- READY RESERVEÐIRR and/or ING TrainedÐRCC (R) E=Trained individual members of the Ready Reserve not in Ready Reserve TrainingÐRCC (P) J=Ready Reserve members, not in the Selected Reserve, par- K=Ready Reserve members, not in the Selected Reserve, par- Inactive National GuardÐRCC (I) I=Ready Reserve members who are of the ING Standby ReserveÐ(Standby Active and Inactive) Standby ReserveÐRCC (Y) D=Members of the Standby Reserve on ``Active Status List'' L=Members with at least 20 years of 10 U.S.C. 1332 (reference N=Other members of the Standby Reserve on ``Inactive RetiredÐRCC (V) PPENDIX A Record field and data item

540 Office of the Secretary of Defense Pt. 114, App. A XXXX XX XXXX . . . CA± AB CA± AD SA± AA SO± SO± VE± 1 A 9 N 9 AN 23 5±13 14±22 . member's SSN individual's lawful wife or husband who is a member of the Armed Forces. If not applicable, set I=WWWWWWWWW. unknown, set I=ZZZZZZZZZ. (Use ``not applicable'' for PJ and PK.) Social Security Administration (SSA); i.e., the extent that standard data elements: SSN, name, individual, date of birth (DoB), and sex agree with the SSA's data. If not applicable, set I=W. If unknown, I=Z years creditable for retirement pay under Section 1331, of reference (h) who are 60, or more, years of age, and now drawing retirement pay under Section 1331 of reference (h). Required to be tracked at component level. Should not be submitted to RCCPDS creditable for retired pay but are not yet entitled to pay. Only retirement category to be submitted RCCPDS tions 1201, 1202, 1204, or 1205 of reference (h). Members must have 20 years of active Federal service creditable for retirement pay or be 30 percent, more, disabled (includes Reservists serving with Active or Reserve components). Re- quired to be tracked at component level. Should not submitted to RCCPDS of AD service and retired under Sections 3911, 3914, 6323, 6330, 8911, or 8914 of reference (h). Includes Regular and Reserve Army and Air Force enlisted personnel with between 20 and 30 years of Military Service, Regular Re- serve Navy and Marine Corps enlisted personnel in the Fleet Reserve (Navy), and Fleet Marine Corps with between 20 and 30 years of service. Required to be tracked at component level. Should not to be submitted RCCPDS for reasons other than age, service requirements or physical disability. That category is restricted to those who are retired under special conditions as authorized by the Assistant Sec- retary of Defense for Reserve Affairs (ASD(RA)), under Leg- islation. Not required to be submitted RCCPDS have requested placement on the ``Honorary Retired List'' under 10 U.S.C. 274 and DoD Directive 1200.15 (references (h) and (k)). Not required to be submitted RCCPDS Enter nine numeric digits omitting hyphens for the Service Enter nine numeric digits omitting hyphens for the SSN of Indicates the status of an individual's SSN verification by 1=Service members who have completed at least 20 qualifying 2=Service members who have completed 20 qualifying years 3=Service members retired for physical disability under Sec- 4=Reserve members who have completed 20, or more, years 5=Reserve personnel drawing retired pay based on retirement 6=Service members who are not eligible for retirement pay, but ...... Service Member 3. Social Security Number (SSN 4. SSN Military Spouse of a 5. Verification Status of SSN

541 Pt. 114, App. A 32 CFR Ch. I (7–1–97 Edition) Ret Res Stnby Res Applicable to Irr/Ing Sel Res XXXX XXXXXXXXXXXX . . . FA± AS XA± AH BA± AB Std. data DoD Elem. DA± NA±RG SE± RA± 1 A 1 A 6 N DD±RA(M)1147ÐContinued 27 AN class Length ILE F 57 58 24±50 51±56 ASTER Record Position ÐM NSTRUCTIONS I ODING 114ÐC Coding and remarks ART P TO A ...... Formation of Name.'' I=999999. If not applicable, set I=WWWWWW. Enter: Year, month, and day (YYMMDD). If only is unknown, set I=YYMM99. (Use ``not applicable'' for PJ and PK.) SSN vided) been received See DoD 5000.12±M, section 2.3.5.3, (reference (i)) ``Rules for The date on which an individual was born. If unknown, set M=Male F=Female Z=Unknown C=White M=Asian or Pacific Islander N=Black R=American Indian and/or Alaskan Native Z=Unknown W=Not reported (Use ``not reported'' for PJ and PK.) A=SSN verified on name, DoB and sex B=SSN not in SSA's numerical identification file C=Name matches, DoB sex code does not match D=Name matches, sex code DoB does not match E=Name matches, DoB and sex code do not match F=Name does not match, DoB and sex code checked G=Input SSN not verified; SSA located and verified a different H=Input SSN verified on name only (DOB and/or sex not pro- K=SSN has been submitted for verification, but no reply V=SSN has not been submitted for verification PPENDIX A ...... Record field and data item Group 6. Service Member's Name 7. Date of Birth 8. Sex 9. Race and/or Population

542 Office of the Secretary of Defense Pt. 114, App. A XXXX XXXX XXX XXXX . . . NA± AA PG± AA UC± AA ET±MY MA± DE± ED± 1 A 2 N 1AN 1 AN 59 60 63 61±62 . . . sesses common characteristics and/or cultural heritage. (Leave blank for PJ and PK.) known, set I=Z. (Leave blank for PJ and PK.) rently attending high school and is not yet a senior. tending high school and is a senior. support. (Report only those eligible to be included on the DD Form 1172, ``Application for Uniformed Services Identification and Privilege Card''. If not applicable, set I=66, if unknown, set I=99. (Use ``not applicable'' for PJ and PK.) codes are to be reported, effective 1 October 1987. If not applicable, set I=Y. If unknown, I=Z Applicable to a member from segment population that pos- 1=Other Hispanic descent 2=U.S. and/or Canadian Tribes (formerly American-Indian) 3=Other Asian Descent 4=Puerto Rican 5=Filipino 6=Mexican (formerly Mexican-American) 7=Eskimo 8=Aleut 9=Cuban (formerly Cuban-American) S=Latin American with Hispanic Descent H=Guamanian G=Chinese J=Japanese K=Korean D=Indian V=Vietnamese E=Melanesian W=Micronesian L=Polynesian Q=Other Pacific Island Descent X=Other Y=None (Indicates no specific ethnicity) Z=Unknown Legal status of an individual as it relates to marriage. If un- A=Annulled. D=Divorced. I=Interlocutory. L=Legally Separated. M=Married. S=Single. W=Widowed. 9=Currently in high schoolÐstatus of an individual who is cur- S=High school seniorÐstatus of individual who is currently at- The number of persons for whom the Service member provides The educational status or level attained by an individual. Those ...... 10. Ethnic Group 11. Marital Status 12. Dependents, Number of 13. Educational Designator

543 Pt. 114, App. A 32 CFR Ch. I (7–1–97 Edition) Ret Res Stnby Res Applicable to Irr/Ing Sel Res Std. data DoD Elem. DD±RA(M)1147ÐContinued class Length ILE F ASTER Record Position ÐM NSTRUCTIONS I ODING 114ÐC Coding and remarks ART P TO A is not currently attending high school and who neither a high school graduate or an alternate credential holder. awarded for attending a non-correspondence vocational, technical, or proprietary school for at least 6 months. An individual so coded must also have completed 11 years of regular day school. That is considered an alternate high school credential. ploma or certificate awarded upon completion of correspondence school coursework, regardless of whether the diploma was issued by a correspondence school, State, or secondary or postsecondary educational institution. That is considered an alternate high school credential. cate, typically awarded by a State, based on certification parent or guardian that an individual completed his her Secondary Education at home. That is considered an alternate high school credenital. awarded on the basis of attending and completing an adult education or ``external'' diploma program, regardless of whether the diploma was issued by a State or secondary or postsecondary educational institution. That is considered an alternate high school credential. general education development (GED) or other test-based high school equivalency diploma. That includes State-wide testing programs such as the ``California High School Pro- ficiency Examination (CHSPE),'' whereby, examinees may earn a certificate of competency or proficency. A State locally issued secondary school diploma obtained solely on the basis of such equivalency testing is not to be considered a high school diploma. That is considered an alernate school credential. 1=Less than high school diplomaÐstatus of an individual who C=Occupational Program CertificateÐa certificate or diploma 7=Correspondence school diplomaÐa secondary di- H=Home study diplomaÐa secondary school diploma or certifi- B=Adult education diplomaÐa secondary school diploma E=Test-based equivalency diplomaÐa diploma or certificate of PPENDIX A Record field and data item

544 Office of the Secretary of Defense Pt. 114, App. A ...... X X X X 3 AN 64±66 high school certificate or diploma. Those are sometimes called certificates of competency or completion, but are based on course completion rather than a test such as the GED or the CHSPE. A State locally issued secondary school diploma obtained solely on the basis of an attenance credential is not considered a high school diploma. That considered an alternate high school credential. ual who is a non-high school graduate or alternate high school credential holder, attended a college or university, and completed at least 15 semester or 20 quarter hours of college-level credit. Credit earned through testing, for pursuit of adult education, or for high school equivalency preparation is not applicable. For military enlistment processing purposes, an indiviual with that status is considered a high school graduate. has attended and completed a 12-year or grade day program of classroom instruction; the diploma must be issued from school where the individual completed all program requirements. 2-year program at a junior college, university or technical institute. completion of a 3-year hospital school nursing program. of a 4-year college program, other than first professional degree. pletion of the academic requirement for first degrees awarded in selected professions: Architecture, Certified Pub- lic Accountant (CPA), Doctor of Chiropody (POD.D), of Dentistry (D.D.S.), Doctor Medicine (M.D.), Optometry (O.D.), Doctor of Osteopathy (D.O.), Pharmacist, Doctor of Veterinary Medicine (D.V.M.), Bachelor or Law (L.L.B. or J.D.), and Bachelor Doctor of Theology (B.D.or D.D.), Rabbi, or any other first professional degree. additional academic requirements beyond the baccalaureate or first professional degree but below the doctorate level. on additional academic requirements beyond the master's degree level but below the doctorate level. the highest academic achievement within an field, excluding honoray degrees and first professional degrees. J=High school certificate of attendanceÐan attendance-based 8=Completed one semester of collegeÐthe status an individ- L=High school diplomaÐa diploma issued to an individual who D=Associate degreeÐa certificate conferred on completion of a G=Professional nursing diplomaÐa certificate conferred on K=Baccalaureate degreeÐa certificate conferred on completion W=First professional degreeÐa certificate conferred on com- N=Master's degreeÐa certificate conferred on completion of R=Post master's degreeÐa certificate conferred on completion U=Doctorate degreeÐa certificate conferred in recognition of Reserved for future use. Report as ``not applicable'', set I=666 ...... 14. Filler

545 Pt. 114, App. A 32 CFR Ch. I (7–1–97 Edition) Ret Res Stnby Res Applicable to Irr/Ing Sel Res XXXX XXXXXXXX XXXX XXXX XX XXXX XXXX ...... AD± AA SN± AA FA± BM AD± AA ard pending FA± BF standard Std. data DoD Elem...... X X X X ST± PA± DA± ST± Stand- DA± non- ST±GA 1 N 6 N 6 N 18 A 2 AN 3 AN DD±RA(M)1147ÐContinued 29 AN 29 AN 87 AN class Length ILE F 154 67±95 63±153 96±124 ASTER Record 164±169 125±142 161±163 155±160 143±144 Position ...... ÐM NSTRUCTIONS I ODING . 114ÐC Coding and remarks ...... ART ...... P TO A ...... zeros until nine-digits become available. If not applicable or unknown, fill first five positions in line as follows: if not applicable, set I=WWWWW, if unknown, I=ZZZZZ ports of death) among others who possess the same grade. If unknown, set I=999999. ENTER: YYMMDD number vidual's creditable Federal service for pay purposes. If unknown, set I=999999. ENTER: YYMMDD known, fill first five positions in line as follows: set I=ZZZZZ. If not applicable, set I=WWWWW. (Use ``not applicable'' for PJ and PK.) Line 1 Enter postal ZIP Code. Use a five-digit Code with trailing 1=Undeliverable and/or not locatable (include postmaster re- 2=Restricted mailing (no bulk) 3=Restricted mailing (foreign addressÐspecial handling) 4=Overseas address 5=Army Post Office (APO) and/or Fleet (FPO) 7=Other good address (other than those above) The date that establishes the relative seniority of an individual Current grade consisting of personnel class and pay level serial The constructed date that establishes the beginning of an indi- Include the present home address for ALL Personnel. If un- Line 2 If unknown, set I=9 Enter DoD Standard PPENDIX A ...... Record field and data item a. Street Address b. City c. Postal State Abbreviation d. Postal ZIP Code cator ices (PEBD) 15. Home Mailing Address 16. Mailing Address Status Indi- 17. Date of Rank 18. Pay Grade, Uniformed Serv- 19. Pay Entry Base Date

546 Office of the Secretary of Defense Pt. 114, App. A XXX XXXX XXXX X . . . . FA± BP FA± BN FA± BO WA± AA DA± DA± DA± AC± 1 A 6 N 6 N 6 N 182 188 170±175 176±181 of Service required by statute. (The date expiration a Service member's statutory MSO). If not applicable, set I=666666. If unknown, set I=999999. ENTER: YYMMDD. (Use ``not applicable'' for PJ and PK.) scripted into any Uniformed Service of the United States (Ac- tive or Reserve component). That date is fixed and not adjusted for breaks in service. That includes enlistment as a Reservist in the Senior ROTC Program, or as a scholarship cadet, or midshipman under 10 U.S.C. 2107 2107(a), enlistment under 10 U.S.C. 511(d) (reference (h)), enlistment in the Active component Delayed Entry Program (DEP), and entrance as a cadet or midshipman at the United States Military Academy (USMA), the United States Naval (USNA), the United States Air Force Academy (USAFA), and the United States Coast Guard Academy (USCGA) (excludes the U.S. Merchant Marine Academy (USMMA)). If unknown, set I=999999. If not applicable, I=6666666. ENTER: YYMMDD. (Use ``not applicable'' for PJ and PK.) ponent (Non-EAD) for the first time. That date is fixed and not adjusted for breaks in Reserve component service. That does not include time in the Active component DEP, ROTC, or the Professional Appointment Program. If unknown, set I=999999. If not applicable, I=666666. ENTER: YYMMDD. (Use ``not applicable'' for PJ and PK.) employees that must have ``dual status'' as military members of the Selected Reserve. Also, identifies specific statutory authority under which an AGR member is serving. Includes U.S. Naval Reserve TARs; however, does not include U.S.C.G. Reserve Program Administrators (RPAs), because they are not members of the Selected Reserve. If applicable, set I=W. If other, I=X. unknown, I=Z and (l)) The date an individual has completed or will complete a period A=10 U.S.C. 175 (reference (h)) B=10 U.S.C. 265 (reference (h)) C=10 U.S.C. 672(d) (reference (h)) D=10 U.S.C. 678 (reference (h)) E=10 U.S.C. 715 (reference (h)) F=10 U.S.C. 3015/3019/8019 (reference (h)) G=10 U.S.C. 3033/8033 (reference (h)) H=10 U.S.C. 3496/8496 (reference (h)) J=32 U.S.C. 502(f) (reference (l)) K=32 U.S.C. 503 (reference (l)) L=32 U.S.C. 708 (reference (l)) The date an individual was first appointed, enlisted, or con- The date an individual affiliates or enlists in any Reserve com- Identifies members of the Selected Reserve who are civilian M=Military Technician U.S.C. 10 and 32 (references (h) . . . . tary Service (DIEMS) serve Forces (DIERF) tory Military Service Obligation (MSO) and/or Active Guard or Re- serve Statute Indentifier 20. Date of Initial Entry into Mili- 21. Date of Initial Entry into Re- 22. Date of Expiration Statu- 23. Military Technician Identifier

547 Pt. 114, App. A 32 CFR Ch. I (7–1–97 Edition) Ret Res Stnby Res Applicable to Irr/Ing Sel Res XX XXXX XX . . . AA specific AA Std. data DoD Elem. MI±JX± Service MI±FA± 1 A 1 N 8 AN DD±RA(M)1147ÐContinued class Length ILE F 189 190 ASTER Record 191±198 Position ÐM . . NSTRUCTIONS I ODING . 114ÐC Coding and remarks ART P TO A members. The code defines the individual's aeronautical rating for Military Services. If not applicable, set I=W. unknown, set I=Z. (Use ``not applicable'' for PJ and PK.) quired). That code defines whether an individual draws some type of flying pay for current duties. An individual must have a current aeronautical rating shown in record field 24, before an entry in that field is required. if not applicable, set I=6. If unknown, set I=9. (Use ``not applicable'' for PJ and PK.) mary military skill held by the individual. Include a prefix or suffix only if space permits. Report Army Enlisted Military Oc- cupational Skill (MOS) and Additional Identifier (ASI), Army Warrant Officer MOS and ASI, Commissioned Of- ficer Specialty Skill Identifier (SSI and ASI, Navy Enlisted Rating and primary Navy Enlisted Classification Code (NEC), Navy Officer Designator (NOC) and primary subspecialty. Marine Corps MOS, Air Force Specialty Code (AFSC), Coast Guard officer experience indicator, and Coast enlisted rating and qualification code. (left justify) If not applicable, set I=WWWWWWWW. If unknown, set I=ZZZZZZZZ. (Use ``not applicable'' for PJ and PK.) 1=On flying status 2=Not on flying status Applicable to both office and enlisted aeronautical Service A=Astronaut B=Fixed wing pilot C=Rotary wing pilot D=Fixed and/or rotary wing pilot E=Navigator and/or weapons systems F=Observer G=Flight surgeon H=Crew member (other) J=Non-crew member K=Naval flight officer L=Student aviator Applicable to both officer and enlisted Service members (as re- Enter up to eight most significant characters indicating the pri- PPENDIX A . . Record field and data item tor (Primary) 24. Military Aeronautical Rating 25. Military Flying Status Indica- 26. Service Occupation Code

548 Office of the Secretary of Defense Pt. 114, App. A XXX XXXXXXXX XX XX . . . specific FA± BS ard pending Service DA±FA DA±FA SE±FB DA± Stand- 1 A 6 N 6 N 6 N 8 AN 1 AN 220 219 207±212 213±218 199±206 221±226 ...... tary skill of the mobilization position occupied by individual. Include a prefix or suffix only if space permits. Report Army enlisted MOS and ASI, warrant officer ASI, Army commissioned officer SSI and Navy enlisted distribution rating and NEC, Navy primary secondary Of- ficer Billet Code (NOBC), Marine Corps billet military occupational skill (BMOS), Air Force AFSC, Coast Guard Officer experience indicator, and Coast Guard enlisted rating qualification code (left justify). If not applicable, set I=WWWWWWWW. If unknown, set I=ZZZZZZZZ. (Use ``not applicable'' for PJ and PK.) 31, or more, consecutive days, thereby, becoming eligible for the Defense Enrollment Eligibility Reporting System (DEERS). Include individuals that have been activated under Title 10, U.S.C., Chapter 39. (See record field 41.) If not applicable, set I=666666. If unknown, I=999999. ENTER: YYMMDD. (Use ``not applicable'' for PJ.) minated duty for 31, or more, consecutive days, thereby, ending eligibility for the DEERS. Report also individuals affected by activation under Title 10, U.S.C., Chapter 39. (See record field 41.) If an indefinite tour, set I=555555. not applicable, set I=666666. If unknown, I=999999. ENTER: YYMMDD. (Use ``not applicable'' for PJ.) highest level of classified information to which the individual has access. If none, set I=Y. not applicable, I=W. unknown, set I=Z. (Use ``not applicable'' for PJ and PK.) unknown, set I=Z. (Use ``not applicable'' for PJ and PK.) ENTER: YYMMDD. (Use ``not applicable'' for PJ and PK.) Enter up to eight most significant characters indicating the mili- Report the date on which Service member starts duty for Report the ending on which Service member will have ter- The security clearance granted to an individual designating the T=Top Secret S=Secret C=Confidential If other, set I=X. none, I=Y. not applicable, I=W. If not applicable, set I=666666. unknown, I=999999. 1=Entrance National Agency Check (ENAC) 2=National Agency Check (NAC) 4=Background Investigation (BI) 5=Special Background Investigation (SBI) B=Local Files Check ...... (Duty) Security Clearance 27. Service Occupation Code 28. Active Duty Start Date 29. Active Duty Stop Date 30. Security Classification 31. Security Investigation Type 32. Date of Award Current

549 Pt. 114, App. A 32 CFR Ch. I (7–1–97 Edition) Ret Res Stnby Res Applicable to Irr/Ing Sel Res XXX XXXX XXXX . . . ard pending ard pending WB± AA Std. data DoD Elem. Stand- Stand- D SO± DA±FA 1 A 1 N 1 N 6 N 1 AN DD±RA(M)1147ÐContinued class Length ILE F 227 228 228 228 ASTER Record 229±234 Position ÐM . NSTRUCTIONS I . ODING 114ÐC Coding and remarks ART . P TO A under a statutory Military obligation. If not applicable, set I=6. If unknown, set I=9. (Use ``not applicable'' for PJ and PK.) U.S.C. 651 reference (h)) Section 651 of reference (h) tion 651 of reference (h) mission. Once recorded, the entry should not change except for corrections. If not applicable, set I=W. other, I=X. unknown, set I=Z (scholarship) scholarship) School (AOCS)/Officer Training (OTS)/Platoon Leader Course (PLC) chaplain, etc.) ficer) and/or OTS PLC) officer or commissioned warrant officer. If not applicable, set I=6. If other, set I=8. unknown, I=9 1=Appointment as a warrant officer 2=Appointment as a commissioned warrant officer 3=Warrant Officer Aviation Training Program That information is required for all Service members serving 1=Currently serving under a 6-year statutory obligation (10 2=Currently serving under an obligation other than required by 3=Currently serving under an 8-year statutory obligation Sec- The Accession Program source of officer's original initial com- A=Academy graduate, U.S.M.A. B=Academy graduate, U.S.N.A. C=Academy graduate, U.S.A.F.A. D=Academy graduate, U.S.C.G.A. E=Academy graduate, U.S.M.M.A. F=Air National Guard (ANG) Academy of Military Sciences G=ROTC/Naval Reserve Officer Training Corps (NROTC) H=ROTC/Naval Reserve Officer Training Corps (NROTC) (non- J=Officer Candidate School (OCS)/Aviation Officer K=Aviation Cadet L=National Guard State OCS M=Direct appointment (professionalÐmedical, dental, JAG, N=Direct appointment (all others, includes Navy limited duty of- P=Aviation training program (exclusive of OCS and/or AOCS Method by which an individual was initially appointed a warrant PPENDIX A ...... sion for a Commissioned Officer ment for a Warrant Officer Record field and data item Military Service a. Source of Initial Commis- b. Source of Initial Appoint- 33. Statutory Authorization for 34. Multiple Reporting 35. Multiple Reporting Date

550 Office of the Secretary of Defense Pt. 114, App. A XX XX XXXX XXXXXXX . . . . . FA± BI FA± BL FA± BK FA± BJ specific DA± DA± DA± DA± Service 2 A 6 N 6 N 6 N 6 N 229±234 229±234 229±234 229±234 235±236 . . . . That does not include constructive credit awarded. Excludes Commissioned Warrant Officers. If not applicable, set I=666666. If unknown, set I=999999. ENTER: YYMMDD not applicable, set I=666666. If unknown, I=999999. ENTER: YYMMDD not applicable, set I=666666. If unknown, I=999999. ENTER: YYMMDD in the Ready Reserve, incurred through contractual provisions, expires. If unknown, set I=999999. ENTER: YYMMDD cable, set I=WW. If unknown, I=ZZ. (Use ``not applicable'' for PJ and PK.) I=WW. If unknown, set I=ZZ Actual date of acceptance initial commission an officer. Date of acceptance initial appointment to warrant officer. If Date of acceptance initial commission to a warrant officer. If The constructed date on which an individual's period of service Report for Army National Guard and Reserve. If not appli- AD=Defense Artillery AG=Adjutant Generals Corps AN=Army Nurse Corps AR=Armor AV=Aviation CH=Chaplain Corps CM=Chemical Corps CA=Civil Affairs DE=Dental Corps DL=Delayed Entry (Includes Assignment Delay) EN=Engineer Corps FA=Field Artillery FI=Finance Corps GO=General Officer IN=Infantry JA=Judge Advocate General Corps MC=Medical Corps MI=Military Intelligence MP=Military Police MS=Medical Service Corps OD=Ordnance Corps QM=Quartermaster Corps SC=Signal Corps SO=Special Operations SP=Army Medical Specialist Corps SS=Staff Specialist TC=Transportation Corps VC=Veterinary Corps WO=Warrant Officer Report for all other Reserve components. If not applicable, set AN=Nurse CH=Chaplain DE=Dentist . . . . . for a Commissioned Officer for a Warrant Officer for a Commissioned War- rant Officer ment in the Ready Reserve a. Date of Initial Appointment b. Data of Initial Appointment c. Date of Initial Appointment d. Date of Expiration Enlist- (Officer Only) 36. Basic Branch or Specialty

551 Pt. 114, App. A 32 CFR Ch. I (7–1–97 Edition) Ret Res Stnby Res Applicable to Irr/Ing Sel Res X XXX XXX . . . FT± AA AA NH± AY Std. data DoD Elem. CO± PR±PL± YE± 1 N 1 N 4 N DD±RA(M)1147ÐContinued class Length ILE F 241 242 ASTER Record 237±240 Position ÐM . . NSTRUCTIONS I ODING Biomedical Science Corps) ≥ 114ÐC . Coding and remarks ART P TO A fied to serve as a unit commander regardless of administrative and/or function pay. If not applicable, set I=6. unknown, set I=9. (Use ``not applicable'' for PJ and PK.) in residency, seminar, or correspondence. If not applicable, set I=6. If none, I=8. unknown, I=9. (Use ``not applicable'' for PJ and PK.) moved from active status due to mandatory Service, grade, and age criteria. Report actual year month, even if it is beyond 1999. If not applicable, set I=6666. unknown, I=9999. (Use ``not applicable'' for PJ and PK.) 1=Currently in command of a unit 2=Previously commanded a unit 3=Never commanded a unit That status applies to all commissioned officers who are quali- The highest level of military education completed by an officer JA=Judge Advocate MC=Medical Corps MI=Military intelligence MS=Medical Service Corps SP=Medical Specialist (Air Force VC=Veterinarian LI=Line (unrestricted) RL=Restricted line (less Military intelligence) PS=Prospective Staff Corps (unrestricted line) LL=Limited duty officer (in support of the unrestricted line) LR=Limited Duty officer (in support of the restricted line) LS=Limited duty officer (in support of the Staff Corps) WL=Warrant officer (in support of the unrestricted line) WR=Warrant officer (in support of the restricted line) WS=Warrant officer (in support of the Staff Corps) CE=Civil Engineer Corps PC=Supply Corps 1=Senior Service SchoolÐincludes: National War College Industrial College of the Armed Forces Army War College Navy War College, Advanced Study and Naval Warfare (British) Royal College of Defense Studies North Atlantic Treaty Organization (NATO) Defense College Art of War Studies (Quantico) Canadian National Defense College Enter the YYMM part of date that an individual must be re- PPENDIX A . . . Record field and data item Mandatory Removal Date Commissoned Officer cation Level 37. Year and Month of Officer 38. Command Status of 39. Professional Military Edu-

552 Office of the Secretary of Defense Pt. 114, App. A XXXX XXX . . . AA ard pending ES± AB TE±ST± Stand- ME± 1 A 2 AN 2 AN 247 243±244 245±246 . classification test is available instead, convert test score to an AFQT percentile and provide a description of the conversion method. Convert percentile scores of 100 to 99. If not applicable, set I=WW. unknown, I=ZZ Chapter 39. (reference (h)). Does not apply to AGR on AD, Section 672(d) of reference (h). Enter: Forces, as an enlisted Service member. The data is intended to be a permanent record entry and should only change if an error is found. If not applicable, set I=W. other, I=X. unknown, set I=Z. (Use ``not applicable'' for PJ and PK.) a Regular component DEP, any Service, under 10 U.S.C. 511 or, after November 1989, 10 U.S.C. 513 of reference (h) under 10 U.S.C. 511. Excludes the DEP (DoS) Report AFQT percentile score, or equivalent. If the score on a Report only if individual was ordered to AD under 10 U.S.C., CI=Presidential Callup (10 U.S.C. 673b) PM=Partial Mobilization (10 U.S.C. 673) Designates the ``initial'' entry into United States Armed A=Induction (any Service) B=Voluntary enlistment in a Regular component C=Voluntary enlistment in a Reserve component for service D=Voluntary enlistment in Reserve component, any Service, Canadian Seminar in Foreign Policy, Department of State Inter-American Defense College Air War College 2=Intermediate Service SchoolÐincludes: Air Command and Staff College Army Command and General Staff College Naval War College, Command and Staff Naval War College, Command and Staff Interim Course Marine Corps Command and Staff College Spanish Naval War College French Naval War College Royal Naval Command and Staff College Royal Air Force Staff College Japanese Command and Staff College German General Staff College Indian National Defense Service Staff College 3=Skill Progression SchoolÐincludes: Army Advanced Branch School Marine Corps Amphibious Warfare Course Air Force Squadron Officer School Combined Arms and Services Staff School (CAS3) 4=Initial SkillÐincludes: Army Basic Course Marine Corps Basic School Navy Warfare Specialty Training . . . Test (AFQT) Percentile Score (Enlisted Only) Duty Military Service for Enlisted Members 40. Armed Forces Qualification 41. Involuntary Call to Active 42. Means of Initial Entry into

553 Pt. 114, App. A 32 CFR Ch. I (7–1–97 Edition) Ret Res Stnby Res Applicable to Irr/Ing Sel Res X XXX X XXX XXX . . . . . ard pending ard pending GA± AA or CO± XV± AA ard pending specific Std. data DoD Elem. Stand- Stand- ST± Stand- Service 1 A 1 A 1 A 2 AN 8 AN DD±RA(M)1147ÐContinued class Length ILE F 250 249 248 ASTER Record 259±260 251±258 Position ÐM . . NSTRUCTIONS I ODING . . 114ÐC J 8 F 5 ABE 0 1 4 CDH 2 3 7 G 6 Coding and remarks ART P Code and Selected Reserve . TO A Does not include ADT. If unknown, set I=Z. applicable, set I=W. (Use ``not applicable'' for PJ and PK.) (officer and enlisted) agrees, or, is committed, to serve in the Selected Reserve. If indefinite, set I=V. not applicable, I=W. If unknown, set I=Z ber's Reserve unit. IMAs shall carry the State code of unit they augment on mobilization. If not applicable set I=WW. If overseas, set I=88. unknown, I=99 viously been a member of the Selected Reserve any Armed Force signed. If UIC where Service member is actually performing duty is different, then, also enter data in record field 101. IMAs shall carry the UIC of unit they augment on mobilization. (Marine Corps to submit Reporting Unit Code (RUC) and Monitored Command Code (MCC), Air Force to submit PAS Code, Army Reserve to submit 6 position UIC and MUSARC Code) If not applicable, set I=WWWWWWWW. unknown, set I=ZZZZZZZZ Prior AD service of 180 days or more in any Armed Force. Y=Yes N=No Enter the code for actual number of years Service member Use only the State, territory, or country of Service mem- Prior Selective Reserve Service. Report if individual has pre- Y=Yes N=No Enter UIC of Reserve unit to which Service member is as- PPENDIX A . . . . . Record field and data item dicator (Active) tor (Selected Reserve) Reserve Agreement and/or Service Commitment Identification Code (UIC)) and Countries (Unit Location) 43. Prior Service (PS) Status In- 44. Prior Service Status Indica- 45. Length of Current Selected 46. Military Unit Designator (Unit 47. States of the United

554 Office of the Secretary of Defense Pt. 114, App. A XX XX XX X XX XX XX XX ...... AB AB NH± BB ZC± AC JW± AB RB± AA AB AB LA±JY± LA±JX± YE± NA± LA± AS± LA±JM± LA±JV± 1A 2 A 3 N 2 N 2 N 4 N 2 N 2 N 6AN 9 AN 287 289 281±282 261±269 285±286 283±284 290±293 270±275 276±278 279±280 ...... ``National ZIP Code Directory'' (reference (m)) for the members Reserve unit. Enter an APO or FPO for a unit in overseas location. IMAs shall carry the ZIP Code of unit they augment on mobilization. Use a five-digit ZIP Code with trailing zeros until nine-digits ZIP Codes become available. If not applicable, set I=WWWWWWWWW. If unknown, I=ZZZZZZZZZ. (Use ``not applicable'' for PJ and PK.) determined by a language examination. (See record field 51.) If only a one character code is available (according to DoD Standard Data Element Reference LA±JW, DoD 5000.12±M, reference (i)), left justify the data. If not applicable, set I=66. If unknown, set I=99. (Use ``not applicable'' for PJ and PK.) determined by a language examination. (See record field 51). If only a one character code is available (according to DoD Standard Data Element reference LA±JX, (reference (i)), left justify the data. If not applicable, set I=66. unknown, I=99. (Use ``not applicable'' for PJ and PK.) determined by a language examination. (See record field 51.) If only a one character code is available (according to DoD Standard Element Reference LA±JY, (reference (i)), left justify the data. If not applicable, set I=66. unknown, I=99. (Use ``not applicable'' for PJ and PK.) proficiency test in a first language. ENTER: YYMM. If not applicable, set I=6666. If unknown, I=9999. (Use ``not applicable'' for PJ and PK.) I=666666 cording to DoD Standard Data Element LA±JV, 5000.12-M, reference (i). If not applicable, set I=W. unknown, set I=Z. (Use ``not applicable'' for PJ and PK.) I=666. If unknown, set I=999. (Use ``not applicable'' for PJ and PK.) language code according to DoD Standard Data Element LA±JM, DoD 5000.12±M, reference (i). (Report the language, other than English, in which an individual has the highest proficiency level, based on the Defense Language Pro- ficiency Test (DPLT).) If not applicable, set I=WW. unknown, set I=ZZ. (Use ``not applicable'' for PJ and PK.) Use only the ZIP Codes shown in most recent edition of The demonstrated degree of speaking skill an individual as The demonstrated degree of listening skill an individual as The demonstrated degree of reading skill an individual as The YYMM part of the evaluation date an individual's last Reserved for future use. Report as ``not applicable'', set Reserved for future use. Report ``not applicable,'' set I=66 Main origin of skill in a language. Enter one character code ac- Enter a test score value of 012 to 164. If not applicable, set A language in which an individual possesses proficiency. Enter ...... ment Plan (Unit ZIP Code) Battery Test Score First Language First Language First Language Source, First Language ficiency Test of First Lan- guage 48. National Zoning Improve- 49. Filler 50. Defense Language Aptitude 51. Language Identifier 52. Speaking Proficiency Level, 53. Listening Proficiency Level, 54. Reading Proficiency Level, 55. Filler 56. Language Proficiency 57. Year and Month of Last Pro-

555 Pt. 114, App. A 32 CFR Ch. I (7–1–97 Edition) Ret Res Stnby Res Applicable to Irr/Ing Sel Res XX XX XX XX XX XX XX ...... JW± ACB ACB AC NH± AC AC AD AC Std. data DoD Elem. LA± LA±JY± LA±JX± YE± LA±JM± LA±JM± LA±JV± 2 A 2 A 1 A 2 N 4 N 2 N 2 N 2 N DD±RA(M)1147ÐContinued class Length ILE F 304 ASTER Record 296±297 298±299 294±295 300±301 305±308 309±310 302±303 Position ÐM ...... NSTRUCTIONS I . ODING . . 114ÐC Coding and remarks ART P TO A language code according to DoD Standard Data Element LA±JM, DoD 5000.12±M, reference (i). (Report the language, other than English, in which an individual has the second highest proficiency level, based on the Defense Language Proficiency Test (DPLT.)) If not applicable, set I=WW. unknown, set I=ZZ. (Use ``not applicable'' for PJ and PK.) determined by a language examination. (See record field 58.) If only a one character code is available (according to DoD Standard Data Element Reference determined by a language examination. (See record field 58). If only a one character code is available (according to DoD Standard Data Element reference number LA±JX, (reference (i)), left justify the data. If not applicable, set I=66. unknown, set I=99. (Use ``not applicable'' for PJ and PK.) determined by a language examination. (See record field 58.) If only a one character code is available (according to DoD Standard Data Element Reference LA-JW, DoD 5000.12-M, reference (i) left justify the data. If not applicable, set I=66. unknown, set I=99. (Use ``not applicable'' for PJ and PK.) proficiency test in a second language. ENTER: YYMM. If not applicable, set I=6666. If unknown, I=9999. (Use ``not applicable'' for PJ and PK) language code according to DoD Standard Data Element LA±JM, DoD 5000.12±M, reference (i). (Report the Lan- guage, other than English in, which an individual has the third highest proficiency level, based on the Defense Lan- guage Proficiency Test (DPLT).)) If not applicable, set I=WW. If unknown, set I=ZZ. (Use ``not applicable'' for PJ and PK.) not applicable, set I=66. If unknown, I=99. (Use ``not applicable'' for PJ and PK.) cording to DoD Standard Data Element LA±JV, 5000.12±M, reference (i). If not applicable, set I=W. unknown, set I=Z. (Use ``not applicable'' for PJ and PK.) A language in which an individual possesses proficiency. Enter The demonstrated degree of speaking skill an individual as The demonstrated degree of listening skill an individual as The demonstrated degree of reading skill an individual as The YYMM part of the evaluation date an individual's last A language in which an individual possesses proficiency. Enter LA±JW, DoD 5000.12-M, reference (i)), left justify the data. If Reserved for future use. Report ``not applicable,'' set I=66 Main origin of skill in a language. Enter one character code ac- PPENDIX A . Iden- ...... Record field and data item Second Language Second Language Second Language Source, Second Language ficiency Test of Second Lan- guage tifier 58. Second Language Identifier 59. Speaking Proficiecy Level, 60. Listening Proficiency Level, 61. Reading Proficiency Level, 62. Filler 63. Language Proficiency 64. Year and Month of Last Pro- 65. Third Language

556 Office of the Secretary of Defense Pt. 114, App. A XX XX XX . . . NH± AZ ard pending WA± AA YE± Stand- RE± 1 A 1 A 4 N 316 315 311±314 a member of the Ready Reserve who is appointed, enlists, reenlists, affiliates, or extends in a Ready Reserve Incentive Program. That does not include the Montgomery G.I. Bill (MGIB), (10 U.S.C. Chapter 106, reference (h)). If not applicable, set I=W. If unknown, I=Z. (Use ``not applicable'' for PJ and PK.) (health professionals, officers ONLY) FY 1988 period of authorized non-availability (missionary) period of authorized non-availability (all others) lected Reserve following a period of authorized non-availability reference (h)) only) gible for a Reserve Incentive Program component bonus or stipend under the Reserve Incentive Program. If not applicable, set I=6666. If unknown, I=9999. ENTER: YYMM. (Use ``not applicable'' for PJ and PK.) member of the Ready Reserve, who is appointed, enlists, reenlists, affiliates, or extends in a Ready Reserve Incentive Program. If not applicable, set I=W. unknown, I=Z. (Use ``not applicable'' for PJ and PK.) Enter the type of Reserve component educational incentive for A=Enlistment bonus (3-year, PS only) B=Enlistment bonus (6-year, PS only) C=Enlistment bonus (6-year, NPS only) D=Enlisted bonus (converted from educational assistance) E=Reenlistment bonus (3-year, Selected Reserve) F=Reenlistment bonus (6-year, Selected Reserve) G=Reenlistment bonus (3-year, IRR) H=Reenlistment bonus (6-year, IRR) J=Affiliation bonus (18-months or less left on MSO) K=Affiliation bonus (18-months or more left on MSO) L=Stipend under HPSP (health professionals, officers ONLY) M=Health Professional Stipend Program for Reserve Service N=Eligibility suspendedÐService member has been granted a P=Eligibility suspendedÐService member has been granted a Q=Eligibility reinstatedÐService member reaffiliates with Se- R=Enlisted bonus (3-year Selected Reserve) S=Enlisted bonus (6-year Selected Reserve) A=Educational assistance (other than MGIB, Chapter 106 of B=Educational assistance (converted from bonus) C=Educational loan repayment (enlisted only) assistance D=Educational loan repayment (health professionals, officers Enter the YYMM part of date that an individual became eli- Enter the type of Reserve component bonus or stipend for any . . . Component Incentive Program Eligibility Effective Date tive Program Type tive Program Education Type 66. Year and Month, Reserve 67. Reserve Component Incen- 68. Reserve Component Incen-

557 Pt. 114, App. A 32 CFR Ch. I (7–1–97 Edition) Ret Res Stnby Res Applicable to Irr/Ing Sel Res X X XX XXX X X . . . . . ard pending NH± BA ard pending specific specific Std. data DoD Elem...... DA±FA Stand- YE± Stand- Service Service 1 A 6 N 6 N 6 N 1 AN 1 AN 1 AN DD±RA(M)1147ÐContinued class Length ILE F 325 324 323 338 ASTER Record 317±322 326±331 332±337 Position ÐM . . NSTRUCTIONS I ODING 114ÐC Coding and remarks ART P TO A . . . for a Reserve component bonus or stipend was terminated under the Reserve Component Incentive Program. Left justify the data with zero fill. If not applicable, set I=666666. unknown, set I=999999. ENTER: YYMMDD. (Use ``not applicable'' for PJ and PK.) erence (g) and (h)). If not applicable, set I=W. unknown, set I=Z Service the Active component MGIB (reference (g)). If not applicable, set I=666666. If unknown, I=999999. ENTER: YYMMDD Inactive Status and those on Reserve Retired Status, per (DoD Directive 1200.7), reference (f). If not applicable, set I=W. If unknown, set I=Z. Enter C=key employee 1, 1985 enrollment ceived a commission as an officer upon graduation from Service academy or completion of a ROTC scholarship educational assistance program service of less than 3 years service of 3 years or more period of obligated service less than 3 years period of obligated service 3 years or more Navy Sea College. ENTER: Amount code from specific Serv- ice Enter the YYMM part of date that individual's eligibility Title 38 U.S.C. Chapter 30, and DoD Directive 1322.16 (ref- If not applicable, set I=W. ENTER: Amount code from specific The date a Service member accepts or declines enrollment in Report key employees in the Standby Reserve on Active and 1=IneligibleÐService member first entered on AD before July 2=EnrolledÐService member has not executed a declination of 3=IneligibleÐafter December 31, 1976, Service member re- 4=EnrolledÐService member on AD for a period of obligated 5=EnrolledÐService member on AD for a period of obligated 6=IneligibleÐService member declined enrollment G=Enrolled during open periodÐService member on AD for a H=Enrolled during open periodÐService member on AD for a Reserved for future use. Report as not applicable, set I=666666 If not applicable, set I=W. Includes Army College Fund and PPENDIX A ...... Record field and data item Component Incentive Program Eligibility Terminated Enrollment Status (Title 38, U.S.C., Chapter 30, reference (g)) creased Basic Allowance Amount (Kicker), (Title 38, U.S.C., Chapter 30) Allowance Amount, Title 38, U.S.C., (Chapter 30 of reference (g)) Enrollment, Title 38, U.S.C. Chapter 30 of reference (g) 69. Year and Month Reserve 70. Montgomery GI Bill (MGIB) 71. MGIB Monthly Authorized In- 72. MGIB Monthly Supplemental 73. Date of Declaration MGIB 74. Filler 75. Key Employees

558 Office of the Secretary of Defense Pt. 114, App. A X . ard pending Stand- 1 A 339 . . erences (m)). If not applicable, set I=W. unknown, I=Z conduct struction required for the award of a baccalaureate or equivalent degree and has not executed a 6-year obligation in the Selected Reserve after 30 September, 1990 ship listment/reenlistment or extension of service in the Selected Reserve after June 30, 1985 ment/reenlistment or extension in the Selected Reserve after June 30, 1985, but has not completed IADT as prescribed by the Secretary of Military Department (includes split training option) school diploma (or equivalency certificate) before completion of IADT (NPS) or before execution a 6-year enlistment/reenlistment or extension of service in the Selected Reserve. (PS) entitlement to the MGIB, on or after, October 1, 1990, are not eligible for Chapter 106, of reference (h) to be an unsatisfactory participant or performer course of instruction required for the award a baccalaureate degree or equivalent and has not executed a 6-year obligation in the Selected Reserve after 30 Septem- ber, 1990. ROTC scholarship. separated, or transferred from the Selected Reserve. mination of unsatisfactory participation or performance. period of authorized non-availability (missionary). Chapter 106 of reference (h) and DoD Instruction 1322.17 (ref- Eligible: F=EligibleÐmeets the eligibility criteria under reference (h) R=EligibleÐdisability not the result of individual's willful mis- Ineligible: A=IneligibleÐService member has completed the course of in- B=IneligibleÐService member in receipt of an ROTC scholar- C=IneligibleÐService member has not executed a 6-year en- D=IneligibleÐService member has executed a 6-year enlist- E=IneligibleÐService member did not receive a secondary G=IneligibleÐcorrection of erroneous report eligibility S=IneligibleÐEligibility terminated FTS and/or AGR who gained Eligibility terminated H=Eligibility terminatedÐService member has been determined I=Eligibility terminatedÐExpiration of 10 year eligibility period J=Eligibility terminatedÐService member has completed a K=Eligibility terminatedÐService member in receipt of an L=Eligibility terminatedÐService member died, Service Eligibility Suspended: M=Eligibility suspendedÐService member awaiting final deter- N=Eligibility suspendedÐService member has been granted a . 10, U.S.C. Chapter 106, of reference (h) 76. MGIB Eligibility Status Title

559 Pt. 114, App. A 32 CFR Ch. I (7–1–97 Edition) Ret Res Stnby Res Applicable to Irr/Ing Sel Res XXX X X X XXX X X XXXX . . . 03± AP 14 28± AE Std. data DoD Elem. DA±FA DA±FA DA±FA 10±TT± 10±TT± DA±FA DA±FA 10±TT± 5 N 6 N 6 N 1 N 6 N 2 N 2 AN 6 AN DD±RA(M)1147ÐContinued class Length ILE F 366 ASTER Record 340±345 352±353 354±359 372±373 360±365 367±371 346±351 Position ÐM . NSTRUCTIONS I ODING . . . . 114ÐC Coding and remarks ART . P . TO . A Form 2384, ``Educational Assistance Program (GI Bill) Notice of Basic Eligibility (NOBE).'' If not applicable, set I=666666. unknown, set I=999999. ENTER: YYMMDD suspension of Reserve component MGIB eligibility (reference (h)). If not applicable, set I=WW. unknown, I=ZZ. ENTER: OO±72 fective date. If unknown, set I=999999.If not applicable, I=666666. ENTER: YYMMDD. (Use ``not applicable'' for PJ and PK.) plicable, set I=6. If unknown, I=9. (Use ``not applicable'' for PJ and PK.) clude AD, temporary tours of AD (TTAD), special for training (SADT) annual (AT), (IADT), full time duty (FTTD), AD for support, and TEMAC active mandays. Reporting for AGR personnel is optional. If not applicable, set I=66666. If unknown, I=99999. (Use ``not applicable'' for PJ and PK.) period of authorized nonavailability (all others). the Selected Reserve following a period of authorized non- availability. ENTER: YYMNDD. If record filed 76 (MGIB eligibility status)=H, I, J, K, L, M, N, or P bers. If not applicable, set I=666666. unknown, I=999999. ENTER: YYMNDD e.g., 50 points, or more, for a satisfactory year, under section 1331 of reference (h). Reporting for AGR personnel is optional. If not applicable, set I=66. unknown, I=99. (Use ``not applicable'' for PJ and PK.) Report the eligibility start date stated in Block 10 of DD Months of MGIB obligated service remaining at termination or Reporting requirement applies to enlisted personnel. Report ef- Report recoupment status at termination of eligibility. If not ap- 1=Recoupment not required 2=Recoupment required, not waived 3=Recoupment required, waived Enter the total number of days active Federal Service to in- P=Eligibility suspendedÐService member has been granted a Eligibility Reinstated: Q=Eligibility reinstatedÐService member has reaffiliated with If not applicable, set I=666666. unknown, I=999999. Reporting requirement applies to all Selected Reserve Mem- Enter number of years creditable toward Reserve retirement; PPENDIX A ...... Record field and data item Chapter 106 of reference (h) Title 10, U.S.C. Chapter 106 of reference (h) nent MGIB, Obligated Service remaining. Title 10, U.S.C. Chapter 106, of reference (h) year Service Obligation of a Selected Reserve Member (MGIB) (ref. (h)) listment, Reenlistment, or Ex- tension of Enlistment Agree- ment Status Chapter 106 of reference (h) Military Service for Reserve Retirement 77. MGIB Eligibility Start Date. 78. MGIB Eligibility Stop Date. 79. Months of Reserve Compo- 80. Date of Execution a 6- 81. Effective Date of Current En- 82. MGIB Benefit Recoupment 83. Total Days Active Federal 84. Number of Years Creditable

560 Office of the Secretary of Defense Pt. 114, App. A X X XXXX XXXX XXXXXXXX XXXX XXXX ...... WX± AC FA± BG FA± BH WX± AB WX± AD AA MG± AA standard ...... RE± DA± DA± RE± RE± NO±PI± PR± Non- 1 N 3 N 6 N 6 N 3 N 5 N 1 N 5 N 2 AN 385 398 374±376 401±405 377±379 386±391 392±397 399±400 380±384 ...... nent retirement points (to be used in the calculations) earned by an individual during the most recently completed retirement and/or retention year as of the end FY. Chapter 67 of reference (h). Reporting for AGR personnel is optional. If not applicable, set I=666. unknown, I=999. (Use ``not applicable'' for PJ and PK.) nents paid points earned by the individual during most recently completed retirement and/or retention year, as of the end of the FY. ``Paid'' refers to any point for which Serv- ice member received basic pay, whether creditable or not creditable toward retirement. Chapter 67 of reference (h). Re- porting for AGR is optional. If not applicable, set I=666. unknown, set I=999. (Use ``not applicable'' for PJ and PK.) cation of eligibility for retired pay on completion all requirements by Section 1331(d) of reference (h) and DoD Directive 1200.15 (reference (k)). Reporting for AGR personnel is optional. The synonymous name is ``20-year letter indicator.'' If unknown, set I=9. If not applicable, I=6. (Use ``not applicable'' for PJ and PK.) signed to any category in the Retired Reserve. If not applicable, set I=666666. If unknown, I=999999. ENTER: YYMMDD. (Use ``not applicable'' for PJ and PK.) Standby Reserve (10 U.S.C. 1209 reference (h)). If not applicable, set I=666666. If unknown, I=999999. ENTER YYMMDD as provided by the Privacy Program (DoD Directive 5400.11, reference (c)), regardless of informational item in dispute career total points earned by an individual creditable toward retirement through the most recently completed retention year, as of the end FY (Chapter 67 reference (h)). Reporting for AGR personnel is optional. If not applicable, set I=66666. If unknown, I=99999. (Use ``not applicable'' for PJ and PK.) ``L1'') Report annually on September file. Enter total Reserve compo- Report annually on September file. Enter total Reserve compo- Indicates that an individual has, or has not, been issued notifi- 0=Notification of eligibility for retired pay not issued 1=Notification of eligibility for retired pay issued The date a Service member reported in the RCCPDS was as- The date a Service member was transferred to the Inactive Indicates if the individual has filed a statement of disagreement 1=No statement of disagreement filed 2=A statement of disagreement has been filed Leave blank for master record Report annually on September file. Enter Reserve component Leave blank for master record. (To be used with loss Codes ...... mulated Total Creditable Re- tirement Points Earned Last Retirement Year Number of Accumulated Paid Points Earned This Year Number of Accumulated Cred- itable Points Earned During Career Toward Retirement Military Retirement Pay Indica- tor tired Reserve Standby Reserve puted Record Indicator 85. Reserve Component Accu- 86. Reserve Component Total 87. Reserve Component Total 88. Notification of Eligibility for 89. Date of Transfer to the Re- 90. Date of Transfer to the 91. Privacy Act reference(a) Dis- 92. Transaction Codes 93. Separation Codes

561 Pt. 114, App. A 32 CFR Ch. I (7–1–97 Edition) Ret Res Stnby Res Applicable to Irr/Ing Sel Res XXXXXXXXXXXX XX X X XXXX ...... standard specific standard specific ard- pend- ing standard Std. data DoD Elem. Non- Service Non- Service DA±FA Stand- Non- 2 A 6 N 2 N 6 N 2 AN 8 AN 8 AN DD±RA(M)1147ÐContinued class Length ILE F ASTER Record 412±413 422±429 414±421 438±439 430±431 406±411 432±437 Position ÐM NSTRUCTIONS I ODING ...... 114ÐC . Coding and remarks ART P TO . A ondary military skill held by the individual. Include a prefix or suffix only, if space permits. Report Army enlisted MOS and ASI, Army warrant officer MOS and commissioned officer SSI and ASI, Navy enlisted rating secondary NEC, Navy officer secondary subspecialty, Marine Corps MOS, Air Force AFSC, Coast Guard officer experience indicator, and Coast Guard enlisted rating qualification Code. (Left justify.) If not applicable, set I=WWWWWWWW. If unknown, set I=ZZZZZZZZ. (Use ``not applicable'' for PJ and PK.) set I=66. If unknown, I=99 fenses) units, resources, and personnel related to a specific mission or weapons system. One code should identify all individuals in a unit. IMAs shall carry the PEC of unit they augment upon mobilization. If not applicable, set I=WWWWWWWW. unknown, set I=ZZZZZZZZ ment. ENTER: YYMMDD. If unknown, set I=999999. not applicable, set I=666666 Reserve who transfer from the Selected to another RCC in either the same Reserve component, or other Re- serve or Active component who are discharged. For Serv- ice members assigned a separation program designator (SPD), reporting must be consistent with data reported in record field 92b of the transaction file coding instruction. If other, set I=XX. If unkown, I=ZZ. Leave blank for Master Record. For individuals with unsatisfactory performance/participation report the following: 1215.13 (reference (r)) Leave blank for master record Enter up to eight most significant characters indicating the sec- Report for Army National Guard and Reserve. If not applicable, US=Misconduct (to include misconduct for purely military of- That code structure (DoD 7045.7±H, reference (g)) identifies Report the end of an individual's Selected Reserve commit- Reporting requirements apply to all members of the Selected Up=Unsatisfactory participation as defined in DoD Directive Leave blank for master record PPENDIX A ...... Record field and data item randum (POM) Defense Plan Program Structure (Program Element Code (PEC)) (Secondary) (CMF), Enlisted lected Reserve Commitment from Selected Reserve 94. Transaction Effective Date 95. Reenlistment Eligibility Code 96. Program Objective Memo- 97. Service Occupation Code 98. Career Management Field 99. Date of Expiration Se- 100. Reason for Loss/Transfer

562 Office of the Secretary of Defense Pt. 114, App. A XXXX XX . . ard pending specific ...... Stand- Service 2 A 1 A 8 AN 450 448±449 440±447 . .... required: serve inactive duty reserve inactive duty performing duty. (Can be different from ``unit member is assigned to''Ðsee record field 46). IMAs shall carry the UIC of the unit they augment on mobilization. (Marine Corps to submit RUC and MCC, Air Force to submit PAS code, Army Re- serve to submit 6 position UIC and MUSARC code) If not applicable, set I=WWWWWWWW. If unknown, I=ZZZZZZZZ When loss code L7 is reported additional information below DD=Death as a proximate result of participating on active or re- DC=Death as a proximate results of participating on active or DA=Death under adjudication If not applicable, set I=WW Enter ``UIC'' of Reserve unit where Service member is actually Reserved for future use. Report as ``not applicable,'' set I=W ...... (Unit Identification Code) 101. Military Unit Designator 102. Circumstance of death 103. Filler

563 Pt. 114, App. C 32 CFR Ch. I (7–1–97 Edition)

APPENDIX B TO PART 114—TRANSACTION B. Edit Concept AND EDITING PROCEDURES FOR SUB- All data submitted to the RCCPDS must be MISSION TAPES edited by the Reserve components for validity, reliability, and consistency before sub- A. Transaction Concept mission to ensure that the Reserve compo- 1. All transactions flowing into the nent strengths match the official strengths produced from the RCCPDS. At the Depart- RCCPDS from the Reserve components apply ment of Defense, all master files and trans- to gains and losses (including transfers, re- action inputs are edited before file update to enlistments and extensions). Report the ap- ensure the accuracy of files and resulting re- propriate Reserve Component Category Des- ports. Use the following edit procedures to ignator (RCCD) and Reserve Component screen all input: Training-Retirement Category Designator (RCTRCD) for all transactions, as follows: 1. Master Files a. For accessions, use codes for gaining a. Duplicate SSN in a Reserve Component’s categories listed in record field 92.a. Submission. When a duplicate SSN is found, b. For transfers, use codes for categories to accept the first occurrence and reject subse- which transferred listed in record field 92.d. quent occurrences. c. For losses, use codes for categories from b. Duplicate SSNs Between Reserve Compo- which loss occurred listed in record field nent Files. That procedure checks for duplica- 92.b. tion among Reserve components. It is ap- 2. The following conditions show examples plied after files are updated and does not re- of acceptable transaction practices: sult in rejects. As agreed to by the Reserve a. When a Service member is transferred components, the DMDC shall provide each from the IRR to the Standby Reserve, sub- Reserve component periodic output from the mit a transfer transaction i.e. TN. RCCPDS to assist in reconciling errors. That b. If a Service member transfers from one maximally reduces the incidence of duplica- State to another, and continues as a Se- tion, and encourages cooperation among the lected Reservist of the same Reserve compo- Reserve components. nent, submit no transaction. 2. Transactions c. If a Service member is transferred from the IRR and/or ING (or Standby and/or Re- a. Gains and Transfers. Check all gain and tired) to the Selected Reserve, submit a transfer transactions for Service member’s transfer transaction. Do not submit a cor- status on last month’s master file (previous responding loss transaction for the decrease month’s submission). in IRR strength. (1) A gain from outside the Reserve compo- d. A loss to the Reserve component shall nent is valid only if the Service member’s record did not exist on the Reserve compo- only be reported if a change from Reserve nent’s last month’s master file. If the Serv- component appropriations to Active compo- ice member’s record already exists on last nent appropriations occurs. That does not month’s master file, the transaction shall reapply to Reserve component members per- ject and not be counted. forming duty for 180 days, or less, in support (2) A transfer from inside the Reserve com- of an Active component mission that is being ponent (i.e. from IRR to Selected Reserve) is funded through Active component appropria- valid if the Service member’s record existed tions. Reserve component members shall be on the Reserve component’s last month’s reported in RCCPDS in their current Reserve master file. If that condition is not satisfied, Component Category while performing that the transaction shall reject and not be duty. counted. 3. The occurrence of multiple transactions b. Losses. All current loss transactions are during a single reporting period is unusual. also reviewed with respect to a Service mem- However, those must be reported against the ber’s status on last month’s master file. A same record in the same update cycle. The loss to the Reserve component is valid, only following conditions shall apply: if the Service member’s record previously ex- a. Include only valid gains, losses, trans- isted. If not, the loss transaction shall reject fers, reenlistments, and extensions. and not be counted. b. Do not report record corrections result- c. Gain and/or Loss. Where simultaneous ing from erroneous gains, losses, reenlist- gain and loss, and reenlistment and/or exten- ments, or extensions. For example, if an er- sion, transactions occur against the same roneous ‘‘loss’’ is processed and then a cor- record (SSN) during one reporting period, responding ‘‘gain’’ is initiated during the count each transaction. same reporting cycle, do not report those d. Reenlistment and/or Extension. A reenlist- transactions. ment and/or extension transaction is accept- c. Ensure that the transaction effective able to the RCCPDS if the record identifies dates of the various transactions are dif- the Service member as a Reservist and that ferent. record is in the Reserve component’s master

564 Office of the Secretary of Defense Pt. 114, App. B file of the previous month. When those con- transfer transaction shall have a correspond- ditions cannot be validated, the transaction ing impact on the master file for the same shall reject and not be counted. period. The following relationships exist: 3. Master File and/or Transactions. Standard (1) When a gain transaction is submitted, validity checks are made on all master file report a master file record on that Service and transaction inputs to ensure that they member during the same cycle. conform to the code structure in Section 3 of (2) When a loss transaction is reported, this Instruction. For example, if a ‘‘GA’’ eliminate the master file record showing the transaction were submitted, it would reject because its second character is ‘‘ALPHA’’ Service member as a Reservist. and the procedure requires a ‘‘NUMERIC’’ (3) When a reenlistment and/or extension second character. Validity errors in a record transaction is submitted, the corresponding shall cause rejection of the entire record, master file for the same period must reflect only under the following circumstances: the individual as being in a Reserve compo- a. When the Reserve component code nent. equals ‘‘9’’. (4) When a transfer transaction occurs, the b. When the SSN does not fit within the corresponding master file for the same pe- numeric boundaries established by the So- riod must reflect the individual as being in cial Security Administration. the new Reserve component category. 4. Master File and/or Transaction File b. All transactions that cannot satisfy the Relationship above relationship to the current master file shall reject and will not be counted. a. During the month’s reporting cycle, each gain, loss, reenlistment, extension, or

565 Pt. 114, App. C 32 CFR Ch. I (7–1–97 Edition) Ret Res Stnby Res Applicable to Irr/Ing Sel Res XXX XXX . . DD±RA (M) 1148 Stan- dard. Stan- dard. Std. data DOD elem...... X X X ...... X X X Non- Non- ILE F 2 AN 2 AN class 398 AN 450 AN Length RANSACTION 1±398 1±450 Record 399±400 399±400 position ÐT . . NSTRUCTIONS I ODING 114ÐC ART P Coding and remarks TO C . . PPENDIX enlisted) That RCS shall be used to report gains, transfers, losses, and reenlistments and/or extensions for members of the Reserve. identical to the Master Record (see enclosure 2) listed) served previously in an Active or Reserve component, and has not received credit toward fulfillment of his or her Military Service Obligation (MSO). the USAFR, USAR, to ARNG, etc.). a gain in the officer file and loss enlisted file, or vice versa). more than 24 hours, but less 91 days, who have reenlisted. That transaction assumes the individual was a previous loss to strength. severs all contractual service or statutory obligations). from Reserve appropriations to Active component appropriations. USMCR, the ANG, to USCGR, etc.). for additional coding instructions.) a ``loss'' in the enlisted file and ``gain'' officer or vice versa). codes. items: transaction codes and the effective date A For losses from the Reserve components (for both officers and The transaction file is identified by the RCS DD±RA(M)1148. The first 398 positions of data for the transaction record will be For gains to the Reserve components (for both officers and en- G1=NPS: an individual from civilian status who has never G3=From civil Life (prior service). G4=Direct from active duty (AD) to the Reserve components. G5=Gain from another Reserve component (i.e.) the USNR to G7=Other gain. G8=From enlisted to officer status or vice versa (shall appear as G0=Reenlistment gain: Individuals with a break in Service of L1=Discharged to civil life (a final or complete discharge, which L2=To extended active duty (EAD) any Service only if change L3=Loss to another Reserve component (i.e.) the USNR L7=Death (See record field 102 on master and transaction file L8=From enlisted to officer status, or vice versa (shall appear as L0=Other losses which cannot be classified into the above In addition to a master record, transaction record shall include ...... Record field and data item a. Gains b. Losses 1±102. Transaction File 1±91. Master Record 92. Transaction Codes

566 Office of the Secretary of Defense Pt. 114, App. C XXX XXX . . Stan- dard. Stan- dard. Non- Non- 2 AN 2 AN 399±400 399±400 ...... ÐA reenlistment occurs when an individual imme- the Reserve components diately reenlists (in 24 hours) on expiration of his or her Serv- ice contract, or agreement, reenlists before the expiration of his or her Service contract, agreement, in the same Re- serve component. An extension occurs when an individual voluntarily extends his or her service contract, agreement in writing beyond its normal expiration date. A break Serv- ice of over 24 hours but less than 91 days, is to be counted as a PS gain (reenlistment) and should be reported with gain code of ``GO.''

For immediate (in 24 hours) reenlistment and/or extensions in Definition M1=Immediate reenlistment. M2=Extension of current enlistment contract or agreement. For intracomponent transfers between Reserve categories TA=Selected Reserve (other than AGR) to AGR TB=Selected Reserve (other than AGR) to IRR TC=Selected Reserve (other than AGR) to ING TD=Selected Reserve (other than AGR) to Standby TE=Selected Reserve (other than AGR) to Retired (V2) TF=AGR to Selected (other than AGR) TG=AGR to IRR TH=AGR to ING TJ=AGR to Standby TK=AGR to Retired (V2) TL=IRR to AGR TM=IRR to Selected (other than AGR) TN=IRR to Standby TP=IRR to Retired (V2) TQ=ING to AGR TR=ING to Selected (other than AGR) TU=Standby to AGR TV=Standby to Selected (other than AGR) TW=Standby to IRR TY=Standby to Retired (V2) TZ=Retired to AGR T1=Retired to Selected (other than AGR) T2=Retired to IRR T3=Retired to Standby P0=Retired transferred to retired status other than V2 P1=Selected Reserve transferred to retired status other than V2 P2=AGR transferred to retired status other than V2 P3=IRR transferred to retired status other than V2 P4=Standby transferred to retired status other than V2 For intercomponent transfer within the same Service N1=Guard Selected to Reserve in same service N2=Guard Selected to Reserve IRR ...... tensions c. Reenlistments and/or Ex- d. Transfers

567 Pt. 114, App. C 32 CFR Ch. I (7–1–97 Edition) Ret Res Stnby Res Applicable to Irr/Ing Sel Res XXXX XXXX XXXX XXX . . . . DB± AA Stan- dard KY± AA Stan- dard. Std. data DOD elem...... X X X X CH± Service SE± Non- 6N DD±RA (M) 1148ÐContinued 1 A 1 A 2 AN 3 AN 2 AN ILE class Length F 1±2 404 405 3±11 39±65 12±38 66±74 75±398 Record 406±411 401±405 401±403 406±411 401±405 412±425 412±413 399±400 399±400 position RANSACTION ÐT ...... NSTRUCTIONS . I ...... ODING ...... Coding and remarks 114ÐC ...... ART P ...... TO . C ...... retirement ment tirement ment both officers and enlisted). Applicable to loss codes ``L1'' only, for all other transaction codes use filler, set I=99999 transfer in the Reserve components. That date supports transaction code defined in record field 92 and would be submitted along with it. ENTER: YYMMDD I=WW an abbreviated record format consisting of: N3=Guard Selected to Reserve-Standby for reason other than N4=Guard Selected to Reserve-Standby for purpose of retire- N5=Guard AGR to Reserve IRR N6=Guard AGR to Reserve-Standby for reason other than re- N7=Guard AGR to Reserve-Standby for the purpose of retire- Reserve component Old SSN Old name New name New SSN Filler Transaction Codes S1Ðchange to Service member's SSN S2Ðchange to Service member's name Filler Transaction effective date Filler For use in describing losses from the Reserve component (for (1) Separation Program Designator (SPD) code (2) Character of Service (3) Filler. Reserved for future use. Report as ``not applicable,'' set I=W The effective date of a gain, loss, reenlistment, extension or Report the reenlistment eligibility code. If not applicable, set Changes to an individual's SSN, or name, shall be submitted in .. PPENDIX A ...... Number or Name Record field and data item e. Changes to Social Security 93. Separation Codes 94. Transaction Effective Date 95. Reeenlisted Eligibility Code

568 Office of the Secretary of Defense Pt. 114, App. C XXXX XXXX XXXX XXXX XXXX XXXX ...... ard Pend- ing ard Pend- ing Spe- cific ard Pend- ing Spe- cific ard Pend- ing Stand- Stand- Service Stand- Service Stand- 2 A 2 A 2 N 6 N 8 N 8 AN 8 AN 422±429 448±449 414±421 430±431 438±439 440±447 432±437 ...... ondary military skill held by the individual. Include a prefix or suffix, only if space permits. Report Army enlisted MOS and ASI, Army warrant officer MOS and commissioned officer SSI and ASI, Navy enlisted rating secondary NEC, Navy officer secondary subspecialty, Marine Corps MOS, Air Force AFSC, Coast Guard officer experience indicator, and Coast Guard enlisted rating and qualification code. (Left justify). If not applicable, set I=WWWWWWWW. unknown, I=ZZZZZZZZ. (Not required for PJ and PK.) I=99 Enter YYMMDD. If unknown set I=99 Reserve who transfer from the Selected to another RCC in either the same Reserve component, other or Active compoennt who are discharged. For Service members assigned a SPD reporting must be consistent with data reported in record field 92b of the Transaction File Cod- ing Instruction. If other, set I=XX. unknown, I=ZZ. For individuals with unsatisfactory performance/participation report the following: 1215.13 (reference (r)) fenses) performing duty (can be different from ``Unit member is assigned to''Ðsee record field 46). IMAs shall carry the UIC of the unit they augment on mobilization. (Marine Corps to submit Reporting Unit Code (RUC) and Monitored Command Code (MCC)), Air Force to submit PAS code, Army Reserve to submit 6-position UIC and MUSARC code.) If not applicable, set I=WWWWWWWWW. If unknown, I=ZZZZZZZZ required: serve inactive duty Leave blank for Transaction File Enter up to eight most significant characters indicating the sec- Report for ARNG. If not applicable, set I=66. unknown, Report the end of an individuals Selected Reserve commitment. Reporting requirements apply to all members of the Selected UP=Unsatisfactory participation as defined in DOD Directive US=Misconduct (to include misconduct for purely military of- Enter ``UIC'' of Reserve unit where Service member is actually When Loss code L7 is reported, additional information below DD=Death as a proximate result of participating on active or re- ...... Program (FYDP) Structure Program Element Code (SPEC) (Secondary) (CMF), Enlisted lected Reserve Commitment from Selected Reserve (UIC) 96. Five-Year Defense Plan 97. Service Occupation Code 98. Career Management Field 99. Date of Expiration Se- 100. Reason for Loss/Transfer 101. Military Unit Designator 102. Circumstance of Death

569 Pt. 114, App. C 32 CFR Ch. I (7–1–97 Edition) Ret Res Stnby Res Applicable to Irr/Ing Sel Res Std. data DOD elem. DD±RA (M) 1148ÐContinued 1 A ILE class Length F 450 Record position RANSACTION ..... ÐT NSTRUCTIONS I ODING Coding and remarks 114ÐC ART P TO C reserve inactive duty ments and coding must be as indicated in Sections two four above. In cases where specific coding instructions are not provided, refer to DoD 5000.12±M (reference (i)). Non- compliance with either the coding instructions herein or those approved standards published in reference (i) shall make the organization that fails to comply responsible for required concessions in data base communication. Cost of conversions shall be borne by the organization whose category of data element lacks precedence. Reserved for future use. Report as ``not applicable,'' set I=W DC=Death not as a proximate result of participating on active or DA=Death under adjudication If not applicable, set I=WW General Note for Personnel Processing this Report: Data ele- PPENDIX A ...... Record field and data item 103. Filler

570 Office of the Secretary of Defense Pt. 114, App. F

APPENDIX D TO PART 114—GENERAL O=Officer SPECIFICATIONS FOR SUBMISSION TAPES E=Enlisted 3. Third through sixth position, as of date. A. Submit magnetic tape files separately Enter: for each Reserve component within 20 cal- YYMM endar days of each month’s end (as of date of 4. Seventh position; type of file. Enter: the file). Separate each file into ‘‘officer’’ and ‘‘enlisted’’ files. M=Master File B. Order each file by Social Security Num- T=Transaction File ber (field number 3), in ascending order, be- E. Block all files with 13,600 characters (32 ginning with ‘‘001010001.’’ Additionally, sort data records of 425 characters per block). transaction records with like SSNs on the F. Accompany all magnetic tape files by a ascending transaction effective date. computer-produced quality control edit. C. Multifile reels are permissible and pre- Make that edit after the files have been pro- ferred to reduce the volume of tape handling. duced, but before submission to the OSD. D. All tapes shall be 9-track, 6250 or 1600 The computer-produced edit may also serve bytes per inch (BPI), extended binary coded as the letter of transmittal for the files. (See decimal interchange code (EBCDIC), with Appendices E and F for format.) standard IBM labels. Data set names (DSN) G. Mail all magnetic tape files and quality shall be seven positions without spaces or pe- control edits to the address shown in riods, as follows: § 114.6(g). 1. First position; Reserve component. Enter: APPENDIX E TO PART 114—QUALITY CON- G=ARNG TROL EDIT—MASTER FILE DD–RA A=USAR (M) 1147 N=USNR M=USMCR The format for each Master File (1147) K=ANG Quality Control Edit Report is, as follows F=USARF (data is illustrative): P=USCGR Reel Number: 123456. 2. Second position: military personnel class: Data Set Name: PE8//6M. Enter: First Data Record: PE8//6M.

RESERVE COMPONENT CATEGORY

Training Retired Category STURPIYV Total

A ...... 5,000 ...... 5,000 B ...... 100 ...... 100 C ...... 15 ...... 15 D ...... 25 ...... 25 E ...... 200 ...... 200 F ...... 100 ...... 100 G ...... 100 ...... 100 I ...... 500 ...... 500 J ...... 175 ...... 175 K ...... 125 ...... 125 L ...... N ...... P ...... 50 ...... 50 Q ...... 100 ...... 100 S ...... 25 ...... 25 T ...... W ...... X ...... 2 ......

5,100 100 275 200 300 500 40 25 6740

APPENDIX F TO PART 114—QUALITY CON- Reel Number: 123456. TROL EDIT—TRANSACTION FILE DD– Data Set Name: PE8//6T. RA(M) 1148 First Data Record: PE8//6T.

The format for each Transaction File (1148) Quality Control Edit Report is, as follows (data is illustrative):

571 Pt. 114, App. G 32 CFR Ch. I (7–1–97 Edition)

RESERVE COMPONENT CATEGORY

Transaction Code STURPIYV Total

G1 ...... 250 ...... 250 G3 ...... 400 ...... 400 G4 ...... 150 ...... 150 G5 ...... 75 ...... 75 G7 ...... ¥ G8 ...... ¥ G0 ...... 10 5 ...... 15

Subtotal: ...... 635 5 0 0 250 0 0 0 890

L1 ...... 150 15 10 5 10 1 ...... 191 L2 ...... 75 25 10 25 5 ...... 140 L3 ...... 20 25 ...... 45 L7 ...... 5 ...... 5 L8 ...... 5 ...... 5 L0 ...... ¥

Subtotal: ...... 255 65 20 30 15 1 0 0 386

M1 ...... 75 50 25 50 ...... 200 M2 ...... 50 ...... 5 ...... 55

Subtotal: ...... 125 50 30 50 0 0 0 0 255

TA ...... 1 ...... 1 TB ...... 1 ...... 1 TC ...... TD ...... TE ...... TF ...... TG ...... TH ...... TJ ...... TK ...... TL ...... 1 ...... 1 TM ...... TN ...... TP ...... TQ ...... TR ...... TU ...... TV ...... TW ...... TY ...... TZ ...... T1 ...... 1 1 T2 ...... T3 ...... T4 ...... N1 ...... N2 ...... N3 ...... N4 ...... N5 ...... N6 ...... N7 ...... P0 ...... P1 ...... P2 ...... P3 ...... P4 ...... Subtotal: ...... 1 1 0 1 0 0 0 1 4

Total ...... 1,016 121 50 81 265 1 0 1 1,535

APPENDIX G TO PART 114—GLOSSARY AF Air Force AD Active Duty AFQT Armed Forces Qualification Test

572 Office of the Secretary of Defense Pt. 114, App. G

AFSC Air Force Specialty Code NOBC Navy Officer Billet Classi- AGR Active Guard/Reserve fication ANG Air National Guard NPS Non-Prior Service AOCS Aviation Officer Candidate NROTC Naval Reserve Officer Train- School ing Corps APO Army Post Office OCS Officer Candidate School AQD Additional Qualification Des- OJCS Office of the Joint Chiefs of ignator Staff ARNG Army National Guard OSD Office of the Secretary of De- ASD(FM&P) Assistant Secretary of De- fense fense (Force Management OSUT One Station Unit Training & Personnel) OTS Officer Training School ASD(PA) Assistant Secretary of De- PEBD Pay Entry Base Date fense (Public Affairs) PEC Program Element Code ASD(RA) Assistant Secretary of De- PLC Platoon Leaders Course fense (Reserve Affairs) PS Prior Service ASI Additional Skill Identifier RCC Reserve Component Category ASVAB Armed Services Vocational RCCD Reserve Component Category Aptitude Battery Designator AT Annual Training RCCPDS Reserve Components Com- BMOS Billet Military Occupational mon Personnel Data Sys- Specialty tem BPI Bytes Per Inch RCTRCD Reserve Component Train- CAS3 Combined Arms and Services ing-Retirement Category Staff School Designator CMF Career Management Field ROTC Reserve Officer Training DEERS Defense Enrollment Eligi- Corps bility Reporting System RPA Reserve Program Adminis- DEP Delayed Entry Program trators DIEMS Date of Initial Entry Mili- SADT Special Active Duty for tary Service Training DIERF Date of Initial Entry Reserve SMP Simultaneous Membership Forces Program DMDC Defense Manpower Data Cen- SPD Separation Program Des- ter ignator DOB Date of Birth SSI Service Specialty Identifier DoD Department of Defense SSN Social Security Number DoDI Department of Defense In- STD Standard struction TARS Training and Administration DSN Data Set Name of Reserves DUI Data Use Identifier TEMAC Temporary Active Duty EAD Extended Active Duty TTAD Temporary Tours of Active EBCDIC Extended Binary Coded Deci- Duty mal Interchange Code U.S. United States Encl Enclosure U.S.C. United States Code FPO Fleet Post Office U.S.N.R. United States Naval Reserve FTTD Full-Time Training Duty UIC Unit Identification Code FYDP Five Year Defense Program USAFA United States Air Force GED General Equivalency Di- Academy ploma USAFR United States Air Force Re- HQ Headquarters serve IDT Inactive Duty Training USCG United States Coast Guard IADT Initial Active Duty for USCGA United States Guard Acad- Training emy IMA Individual Mobilization USMA United States Military Acad- Augmentee emy ING Inactive National Guard USMC United States Marine Corps IRR Individual Ready Reserve USMMA United States Merchant Ma- MOS Military Occupational Spe- rine Academy cialty USN United States Navy MSO Military Service Obligation USNA United States Naval Acad- NATO North Atlantic Treaty Orga- emy nization YYMM Year Year Month Month NEC Navy Enlisted Classification YYMMDD Year Year Month Month Day Code Day MGIB Montgomery GI Bill ZIP Zoning Improvement Plan

573 Pt. 114, App. H 32 CFR Ch. I (7–1–97 Edition)

APPENDIX H TO PART 114ÐRECORD LAYOUT APPENDIX H TO PART 114ÐRECORD LAYOUT RESERVE COMPONENTS COMMON PERSONNEL RESERVE COMPONENTS COMMON PERSONNEL DATA SYSTEM (RCCPDS) DATA SYSTEM (RCCPDS)ÐContinued

Record Record field and data item Record Page Record field and data item position Page position

1. Reserve Component ...... 1±2 2±1 40. Armed Forces Qualification Test 2. Reserve Component Category ...... 3±4 2±1 Percentile Score (Enlisted Only) ...... 243±244 2±19 a. Reserve Component Category 41. Involuntary Call to Active Duty ...... 245±246 2±19 Designator ...... 3 2±1 42. Means of Initial Entry into Military b. Reserve Component Training/Re- Service for Enlisted Members ...... 247 2±20 tirement Category Designator ...... 4 2±3 43. Prior Service Status Indicator (Ac- 3. Social Security Number ...... 5±13 2±6 tive) ...... 248 2±20 4. Social Security Number, Military 44. Prior Service Status Indicator (Se- Spouse of a Service Member ...... 14±22 2±6 lected Reserve) ...... 249 2±20 5. Verification Status of Social Security 45. Length of Current Selected Reserve Number ...... 23 2±6 Agreement and/or Service Commit- 6. Service Member's Name ...... 24±50 2±7 ment ...... 250 2±20 7. Date of Birth ...... 51±56 2±7 46. Military Unit Designator (Unit Identi- 8. Sex ...... 57 2±7 fication Code) ...... 251±258 2±21 9. Race and/or Population Group ...... 58 2±7 47. States of the United States and 10. Ethnic Group ...... 59 2±7 Countries (Unit Location) ...... 259±260 2±21 48. National Zoning Improvement Plan 11. Marital Status ...... 60 2±8 (Unit ZIP Code) ...... 261±269 2±21 12. Dependents, Number of ...... 61±62 2±8 49. Filler ...... 270±275 2±21 13. Educational Designator ...... 63 2±8 50. Defense Language Aptitude Battery 14. Filler ...... 64±66 2±11 Test Score ...... 276±278 2±21 15. Home Mailing Address ...... 67±153 2±11 51. First Language Identifier ...... 279±280 2±21 16. Mailing Address Status Indicator .... 154 2±11 52. Speaking Proficiency Lever, First 17. Date of Rank ...... 155±160 2±11 Language ...... 281±282 2±21 18. Pay Grade, Uniformed Services ..... 161±163 2±11 53. Listening Proficiency Level, First 19. Pay Entry Base Date (PEBD) ...... 164±169 2±11 Language ...... 283±284 2±22 20. Date of Initial Entry into Military 54. Reading Proficiency Level, First Service (DIEMS) ...... 170±175 2±12 Language ...... 285±286 2±22 21. Date of Initial Entry into Reserve 55. Filler ...... 287±288 2±22 Forces (DIERF) ...... 176±181 2±12 56. Language Proficiency Source, First 22. Date of Expiration of Statutory Mili- Language ...... 289 2±22 tary Service Obligation ...... 182±187 2±12 57. Year and Month of Last Proficiency 23. Military Technician Identifier and/or Test of First Language ...... 290±293 2±22 Active Guard or Reserve Statute 58. Second Language Identifier ...... 294±295 2±22 Identifier ...... 188 2±12 59. Speaking Proficiency Level, Second 24. Military Aeronautical Rating ...... 189 2±13 Language ...... 296±297 2±22 25. Military Flying Status Indicator ...... 190 2±13 60. Listening Proficiency Level, Second 26. Service Occupation Code (Primary) 191±198 2±13 Langauge ...... 298±299 2±23 27. Service Occupation Code (Duty) .... 199±206 2±14 61. Reading Proficiency Level, Second 28. Active Duty Start Date ...... 207±212 2±14 Language ...... 300±301 2±23 29. Active Duty Stop Date ...... 213±218 2±14 62. Filler ...... 302±303 2±23 30. Security Clearance ...... 219 2±14 63. Language Proficiency Source, Sec- 31. Security Investigation Type ...... 220 2±15 ond Language ...... 304 2±23 32. Date of Award of Current Security 64. Year and Month of Last Proficiency Clearance ...... 221±226 2±15 Test of Second Language ...... 305±308 2±23 33. Statutory Authorization for Military 65. Third Language Identifier ...... 309±310 2±23 Service ...... 227 2±15 66. Year and Month, Reserve Compo- 34. Multiple Reporting ...... 228 2±15 nent Incentive Program Eligibility Ef- a. Source of Initial Commission for a fective Date ...... 311±314 2±24 Commissioned Officer ...... 228 2±15 67. Reserve Component Incentive Pro- b. Source of Initial Appointment as a gram Type ...... 315 2±24 Warrant Officer ...... 228 2±16 68. Reserve Component Incentive Pro- 35. Multiple Reporting Date ...... 229±234 2±16 gram Educational Type ...... 316 2±25 a. Date of Initial Appointment for a 69. Year and Month Reserve Compo- Commissioned Officer ...... 229±234 2±16 nent Incentive Program Eligibility Ter- b. Date of Initial Appointment for a minated ...... 317±322 2±25 Warrant Officer ...... 229±234 2±16 70. Montgomery G.I. Bill (MGIB) Enroll- c. Date of Initial Appointment for a ment Status (Title 38, U.S.C., Chap- Commissioned Warrant Officer ...... 229±234 2±16 ter 30) ...... 323 2±25 d. Date of Expiration of Enlistment in 71. Montgomery G.I. Bill Monthly Au- the Ready Reserve ...... 229±234 2±16 thorized Increase Basic Allowance 36. Basic Branch or Specialty (Officer Amount (Kicker), (Title 38, U.S.C., Only) ...... 235±236 2±16 Chapter 30) ...... 324 2±26 37. Year and Month of Officer Manda- 72. Montgomery G.I. Bill Monthly Sup- tory Removal Date ...... 237±240 2±18 plemental Allowance Amount (Title 38. Command Status of Commissioned 38, U.S.C., Chapter 30) ...... 325 2±26 Officer ...... 241 2±18 73. Date of Declaration of Montgomery 39. Professional Military Education G.I. Bill Enrollment (Title 38, U.S.C., Level ...... 242 2±18 Chapter 30) ...... 326±331 2±26

574 Office of the Secretary of Defense § 115.2

APPENDIX H TO PART 114ÐRECORD LAYOUT PART 115—ASSIGNMENT TO AND RESERVE COMPONENTS COMMON PERSONNEL TRANSFER BETWEEN RESERVE DATA SYSTEM (RCCPDS)ÐContinued CATEGORIES, AND DISCHARGE Record FROM RESERVE STATUS Record field and data item position Page

74. Filler ...... 332±337 2±26 Sec. 75. Key Employees ...... 338 2±26 115.1 Purpose and applicability. 76. Montgomery G.I. Bill Eligibility Sta- 115.2 Original assignment to reserve status. tus (Title 10, U.S.C., Chapter 106) .... 339 2±26 115.3 Transfer to the Standby Reserve. 77. Montgomery G.I. Bill Eligibility Start 115.4 Transfer from the Standby Reserve. Date (Title 10, U.S.C, Chapter 106) .. 340±345 2±28 115.5 Discharge. 78. Montgomery G.I. Bill Eligibility Stop AUTHORITY: Sec. 301, 80 Stat. 379; 5 U.S.C. Date (Title 10, U.S.C., Chapter 106) 346±351 2±28 301, sec. 1(5)(A), 72 Stat. 1438; 10 U.S.C. 271, 79. Months of Reserve Component MGIB Obligated Service Remaining .. 352±353 2±28 E.O. 11190; 3 CFR, 1964–1965 Comp. p. 272, E.O. 80. Date of Execution of a 6-year Serv- 11382; 3 CFR, 1967 Comp. p. 327. ice Obligation of a Selected Reserve SOURCE: 35 FR 2775, Feb. 10, 1970, unless Member (MGIB) ...... 354±359 2±28 otherwise noted. 81. Effective Date of Current Enlist- ment, Reenlistment, or Extension of Enlistment Agreement ...... 360±365 2±29 § 115.1 Purpose and applicability. 82. Montgomery G.I. Bill Benefit This part establishes Department of Recoupment Status (Title 10, U.S.C., Defense policy guidance to the Mili- Chapter 106) ...... 366 2±29 83. Total Days Active Federal Military tary Departments for assignment of Service ...... 367±371 2±29 military personnel to and transfer be- 84. Number of Years Creditable for Re- tween reserve categories, and discharge serve Retirement ...... 372±373 2±29 from reserve status under the provi- 85. Reserve Component Accumulated sions of the Military Selective Service Total Creditable Retirement Points Earned Last Retirement Year ...... 374±376 2±29 Act of 1967 (50 App. U.S.C. 451 et seq.) 86. Reserve Component Total Number and title 10 U.S.C. of Accumulated Paid Points Earned this Year ...... 377±379 2±29 § 115.2 Original assignment to reserve 87. Reserve Component Total Number status. of Accumulated Creditable Points Earned During Career Toward Retire- (a) Ready Reserve. Original member- ment ...... 380±384 2±30 ship in the Ready Reserve may be at- 88. Notification of Eligibility for Military tained by: Retirement Pay Indicator ...... 385 2±29 89. Date of Transfer to the Retired Re- (1) Transfer thereto under sections serve ...... 386±391 2±30 269(a) and 651 of title 10 U.S.C. upon re- 90. Date of Transfer to the Standby Re- lease from active duty: serve ...... 392±397 2±30 (2) Appointment as a Reserve Officer 91. ``Privacy Act'' Disputed Record Indi- and assignment to the Ready Reserve cator ...... 398 2±30 92. Transaction Codes ...... 399±400 2±30 under section 6(d), The Military Selec- 93. Separation Codes ...... 401±405 2±30 tive Service Act of 1967 (50 App. U.S.C. 94. Transaction Effective Date ...... 406±411 2±31 451 et seq.) and section 269(a) of title 10 95. Reenlistment Eligibility Code ...... 412±413 2±31 U.S.C.; 96. Program Objective Memorandum (3) Entry (appointment or enlist- (POM) Defense Plan Program Struc- ture (Program Element Code (PEC)) 414±421 2±31 ment) into the Army National Guard of 97. Service Occupation Code (Second- the United States or Air National ary) ...... 422±429 2±31 Guard of the United States in accord- 98. Career Management Field (CMF), ance with section 269(b) of title 10 Enlisted ...... 430±431 2±31 U.S.C. as affected by sections 510, 591, 99. Date of Expiration of Selected Re- serve Commitment ...... 432±437 2±31 3077, 3261, 3351, 8077, 8261, and 8351 of 100. Reason for Loss/Transfer from Se- title 10 U.S.C.; lected Reserve ...... 438±439 2±31 (4) Direct entry under section 511 of 101. Military Unit Designator (Unit Iden- title 10 U.S.C.; tification Code) ...... 440±447 2±32 (5) Direct voluntary entry (appoint- 102. Circumstance of Death ...... 448±449 2±32 103. Filler ...... 450 2±32 ment or enlistment) of an individual into the Ready Reserve, other than as provided above. (b) Standby Reserve. Direct assignment to the Standby Reserve without

575 § 115.3 32 CFR Ch. I (7–1–97 Edition) prior membership in the Ready Reserve conformance with section 271 of title may be attained in accordance with 10, U.S.C. will be accomplished under sections 269(e)(1) and 269(f) of title 10 part 125 of this subchapter. U.S.C. upon release from 5 or more (d) Transfer to the Standby Reserve years of active duty (other than for of members of the Army National training) in the Armed Forces. Guard of the United States or the Air (c) Retired Reserve. Direct assignment National Guard of the United States and transfer to the Retired Reserve will be subject to section 269(g) of title may be accomplished under DOD Direc- 10 U.S.C. tive 1200.4, ‘‘The Retired Reserve of the (e) Upon transfer of a member of the 1 Reserve Forces,’’ September 24, 1963. Ready Reserve to the Standby Reserve, § 115.3 Transfer to the Standby Re- notification thereof to the Selective serve. Service System will be made by the Military Department concerned in ac- (a) Provided they are not on active cordance with part 136 of this sub- duty, the following personnel who have chapter. not fulfilled their total military service statutory obligation shall, upon (f) Assignment to the Inactive Status their request, be assigned to or trans- List of the Standby Reserve and reten- ferred to the Standby Reserve: tion thereon is governed by part 136 of (1) Those who have served 5 or more this subchapter. years on active duty (other than for training). § 115.4 Transfer from the Standby Re- (2) Those who have served on active serve. duty (other than for training) and par- (a) In accordance with section 272 of ticipated satisfactorily in accredited title 10 U.S.C. any member of the training programs of the Ready Re- Standby Reserve who has not com- serve for a combined total of at least 5 pleted his statutory obligated period of years, or such shorter period as the military service in the Ready Reserve Secretary of a Military Department may be transferred to the Ready Re- concerned, with the approval of the serve whenever the reasons for his Secretary of Defense, may prescribe. transfer to the Standby Reserve no (b) Individuals qualifying for assign- longer exist, provided he is otherwise ment or transfer to the Standby Re- qualified and a requirement exists. serve under paragraph (a) of this sec- (b) Subject to such regulations as the tion, shall, if otherwise qualified there- appropriate Secretary may prescribe, a for and a suitable vacancy exists, be af- member of either the Standby Reserve forded the opportunity to execute a or the Retired Reserve may, upon his written agreement to be assigned to or own request, be transferred to the remain in the Ready Reserve. All such Ready Reserve if qualified and a re- voluntary agreements will provide quirement exists for him. However, a that: member of the Retired Reserve who is (1) The reservist may be transferred entitled to retired pay may not be to the Standby Reserve by the appro- transferred to the Ready Reserve un- priate Secretary for cogent reasons; less the Secretary concerned person- (2) The reservist waives his right to ally makes a special finding that the transfer to the Standby Reserve under member’s services in the Ready Re- the conditions stated in paragraph (a) serve are indispensable. Such vol- of this section, while serving under untary transfer will be accomplished such agreement. (3) The period of the agreement shall under section 269(d) of title 10, U.S.C. be as prescribed by part 125 of this sub- Those who have fulfilled their Ready chapter. Reserve statutory obligation will be re- (c) Transfer to the Standby Reserve quired to execute a written agreement under the screening process in to serve in the Ready Reserve under conditions set forth in this paragraph (b). 1 Filed as part of original document. Copies available from the U.S. Naval Publications (c) In any case, where an individual is and Forms Center, 5801 Tabor Avenue, Phila- transferred from the Standby Reserve delphia, PA 19120, Attention: Code 300. to the Ready Reserve or the Retired

576 Office of the Secretary of Defense § 132.3

Reserve, notification thereof to the Se- PART 132—INITIAL ACTIVE DUTY lective Service System will be made by FOR TRAINING IN RESERVE COM- the Military Department concerned in PONENTS accordance with part 136 of this subchapter. Sec. 132.1 Reissuance and purpose. § 115.5 Discharge. 132.2 Applicability and scope. (a) Enlisted members of the Ready 132.3 Policy. Reserve or the Standby Reserve not on 132.4 Implementation. active duty who have completed their AUTHORITY: 10 U.S.C. 511, 32 U.S.C. 302, 50 statutory obligation or who are not App. U.S.C. 456(c)(2)(A). otherwise subject to a military obliga- SOURCE: 35 FR 1290, Jan. 31, 1970, unless tion will be discharged upon the com- otherwise noted. pletion of their obligation or upon the expiration of their enlistment, as the § 132.1 Reissuance and purpose. case may be, unless they voluntarily This part updates uniform policies (1) re-enlist to serve in the Ready Re- governing active duty and active-duty- serve or Standby Reserve, or (2), where for-training programs established to applicable, extend their enlistment to provide basic training for persons en- remain in the Ready Reserve or (3) re- listing directly into the Reserve Com- quest transfer to the Inactive Status ponents (see § 132.3(a) and (d)(1)). List of the Standby Reserve under the provisions of part 136 of this sub- § 132.2 Applicability and scope. chapter. Only those personnel listed in (a) The provisions of this part apply part 136 of this subchapter may re-en- to the Military Departments conduct- list in the Standby Reserve. ing reserve enlistment programs under (b) Any person who while a member the provisions of title 10, U.S.C. section of a reserve component becomes a reg- 511, and title 32, U.S.C. for personnel ular or duly ordained minister of reli- without prior military service. gion shall be discharged from such re- (b) Initial active duty or active-duty- serve component upon request under for-training programs may include, in section 1162(b) of title 10, U.S.C. The addition to recruit or basic individual definition of regular or duly ordained training, basic unit training and var- minister of religion provided in section ious types of specialist training. 16(g) of The Military Selective Service Act of 1967 (50 App. U.S.C., 451 et seq.) § 132.3 Policy. shall be used in connection with this (a) General. The reserve enlistment regulation. programs were established to provide (c) Those commissioned officers of the Reserve Forces with trained per- the reserve who have accepted indefi- sonnel. Enlistments of non-prior serv- nite appointment will not be subject to ice personnel shall be accepted under mandatory discharge upon completion title 10, U.S.C. section 511, and title 32, of the statutory obligation. U.S.C. only to the extent that initial (d) Discharge from one’s statutory active-duty-for-training spaces are ex- obligation for hardship or other causes pected to be available within 180 days will be governed by pertinent provi- from dates of enlistment. The Military sions of parts 50 and 125 of this sub- Departments will program and budget chapter. for Reserve training base requirements (e) Discharge from the reserve com- as necessary to preclude delaying the ponents is governed by sections 1003, commencement of initial basic train- 1162, and 1163 of title 10, U.S.C., subject ing of Reserve enlistees beyond 180 to sections 680–681 and 1006 of the same days in accordance with section 511(d) reference. of title 10, United States Code. (f) Upon the discharge of members of (b) Periods of enlistment. (1) Persons the Standby Reserve, due notification without prior military service who are thereof will be made to the Selective under 26 years of age who enlist under Service System by the Military De- section 511 (a) or (d) of title 10, U.S.C., partment concerned. or section 302 of title 32, U.S.C., and all

577 § 132.3 32 CFR Ch. I (7–1–97 Edition) persons regardless of age who enlist or work with classified military infor- under section 511(b) of title 10, U.S.C. mation or equipment may be delayed will be enlisted for a period of 6 years. to the extent necessary to accomplish (2) Persons without prior military the required clearances. service who are 26 years or over who (ii) Persons with special qualifica- enlist under section 511(a) of title 32, tions enlisted to fill positions requiring U.S.C. will be enlisted for such period highly specialized skills for which ap- as is prescribed by the Secretary of the propriate formal training courses are Military Department concerned. offered only infrequently may be de- (c) Periods of training. (1) Persons layed to the extent necessary to insure without prior military service who en- that the enlistee receives the training list in the Reserve Forces under sec- commensurate with the requirements tion 511 (a) or (d) of title 10, U.S.C., or of the position for which enlisted. section 302 of title 32, U.S.C. will per- (iii) Persons who have enlisted and form an initial tour of active-duty-for- who subsequently incur a personal training of not less than four (4) con- hardship as a result of an unexpected secutive months’ duration regardless of delay in being ordered to initial active- age at time of enlistment (title 10, duty-for-training may be delayed be- U.S.C., section 671). yond 180 days under regulations pre- (i) The initial period of active-duty- scribed by the Secretary of the Mili- for-training will be determined within tary Department concerned. each Military Service on the basis of (iv) Delays for such personnel shall, the amount of training considered nec- in no case, exceed a period of 1 year essary to qualify the individual for the from date of enlistment. Such delays military specialty for which he en- shall not be employed for the purpose listed. of stockpiling personnel. (ii) Unless otherwise provided by law, (2) Participation in Reserve training personnel shall participate in reserve by individuals during periods of delay training in the Ready Reserve for the will be in accordance with part 102 of total period of enlistment except for this subchapter. the period of delay in reporting for ac- (3) Persons enlisting in the Reserve tive-duty-for-training permitted by Components under section 511(b) of paragraph (d) of this section. title 10, U.S.C., shall be ordered to ac- (iii) Deferment from induction of tive duty or advanced school training draft-liable enlistees based on satisfac- no later than 1 year following enlist- tory service in the Reserves is gov- ment. erned by the Military Selective Service (e) Officer training programs. Persons Act of 1967, as supplemented by Selec- enlisting directly in the Reserve Com- tive Service Regulations. ponents to participate in officer train- (2) Persons without prior military ing programs requiring enlisted status service who enlist in the Reserve for eligibility therefor may be exempt Forces under section 511(b) of title 10, from the training and delay require- U.S.C. will perform such active-duty- ments set forth in paragraphs (c) and for-training and inactive duty training (d) of this section. as required to qualify them as combat (f) Reserve Officers’ Training Corps. ready by not later than 6 months fol- Personnel enrolled in the financial as- lowing date of enlistment. sistance program of the senior division, (d) Delay in reporting. (1) Persons en- ROTC, or the advanced course of the tering the Reserve Components under nonscholarship program of the senior section 511 (a) or (d) of title 10, U.S.C., division will not participate in a paid or section 302 of title 32, U.S.C. shall training status (part 102 of this sub- enter initial active-duty-for-training chapter), in any training program of a as prescribed in paragraph (c) of this Reserve Component. section, with minimum practicable (g) Army and Air National Guard. In delay after enlistment. Any delay au- order to assure uniformity of training thorized shall not exceed 180 days ex- and discipline, members of the Army cept as follows: National Guard of the United States (i) Persons enlisting for positions re- and the Air National Guard of the quiring security clearance for access to United States ordered to active-duty-

578 Office of the Secretary of Defense § 142.4 for-training for the purpose of basic § 142.1 Purpose. training will be ordered to that duty as This part provides policy, prescribes Reserves of the Army or of the Air procedures, and assigned responsibil- Force, as appropriate. ities regarding the use of copyrighted (h) Advanced individual training. In sound and video recordings within the order to assure a high level of quality among Reserve enlisted personnel and Department of Defense. to achieve and maintain a high level of § 142.2 Applicability. operational readiness of units of the Selected Reserve, National Guard and (a) The provisions of this part apply Reserve enlistees who require advanced to the Office of the Secretary of De- individual training in specific military fense, the Military Departments, the skills to qualify them for filling unit Organization of the Joint Chiefs of assignments in the Selected Reserve Staff, the Unified and Specified com- will be provided such training follow- mands, and the Defense Agencies (here- ing completion of their basic training. after referred to collectively as ‘‘DoD (1) The Military Departments will Components’’). program and budget for advanced indi- (b) This part does not regulate the vidual training capabilities sufficiently procurement or use of copyrighted to fulfill the individual training re- works for authorized official purposes. quirements of National Guard and Re- serve units on a priority consistent § 142.3 Policy. with mobilization missions assigned. (a) It is DoD policy: (1) To recognize (2) Personnel enlisted under sub- the rights to copyright owners by es- sections (a) or (d) of 10 U.S.C. 511, who tablishing specific guidelines for the have received such advanced training use of copyrighted works by individ- will be required to agree to actively uals within the DoD community, con- participate in the Selected Reserve for sistent with the Department’s unique the duration of their statutory obliga- mission and worldwide commitments, tion. and (2) Not to condone, facilitate, or [35 FR 1290, Jan. 31, 1970, as amended at 35 permit unlicensed public performance FR 12654, Aug. 8, 1970] or unlawful reproduction for private or personal use of copyrighted sound or § 132.4 Implementation. video recordings, using government ap- In the interest of maintaining rea- propriated or nonappropriated-fund- sonable uniformity and equity among owned or leased equipment or facili- the reserve enlistment programs of the ties. Military Departments, proposed (b) Although the policy expressed in changes to existing reserve enlistment this Directive takes into account the programs established in conformance copyright law of the United States, the with this part and programs proposed application of that law to specific situ- for establishment under its provisions ations is a matter for interpretation by will be submitted to the Assistant Sec- the U.S. Copyright Office and the De- retary of Defense (Manpower and Re- partment of Justice. serve Affairs) for approval. § 142.4 Procedures. PART 142—COPYRIGHTED SOUND (a) Permission or licenses from copy- AND VIDEO RECORDINGS right owners shall be obtained for public performance of copyrighted sound Sec. and video recordings. 142.1 Purpose. (b) Component procedures estab- 142.2 Applicability. lished pursuant to § 142.5, below provide 142.3 Policy. guidance for determining whether a 142.4 Procedures. performance is ‘‘public.’’ These general 142.5 Responsibilities. principles will be observed: AUTHORITY: 10 U.S.C. 133. (1) A performance in a residential fa- SOURCE: 49 FR 49452, Dec. 20, 1984, unless cility or a physical extension thereof is otherwise noted. not considered a public performance.

579 § 142.5 32 CFR Ch. I (7–1–97 Edition)

(2) A performance in an isolated area organizations representing DoD civil- or deployed unit is not considered a ian employees. public performance. (3) Any performance at which admis- § 143.2 Applicability and scope. sion is charged normally would be con- (a) The provisions of this part apply sidered a public performance. to: (c) Government audio and video du- (1) Department of Defense Compo- plicating equipment and appropriated nents, which include the Office of the funded playback equipment may not be Secretary of Defense, the Military De- used for reproduction of copyrighted partments, the Organization of the sound or video recordings. Joint Chiefs of Staff, the Unified and Specified Commands, and the Defense § 142.5 Responsibilities. Agencies; Heads of DoD Components shall es- (2) All military and civilian person- tablish procedures to comply with this nel of the Department of Defense; and Directive and shall provide necessary (3) Individuals and groups entering, local guidance and legal interpreta- using, or seeking to enter or use mili- tion. tary installations. (b) This part does not limit the appli- PART 143—DoD POLICY ON OR- cation of the Uniform Code of Military GANIZATIONS THAT SEEK TO REP- Justice title 10 U.S.C., sections 801–940 RESENT OR ORGANIZE MEMBERS or 10 U.S.C. 976 including the prohibi- OF THE ARMED FORCES IN NE- tions and criminal penalties set forth therein with respect to matters that GOTIATION OR COLLECTIVE are the subject of this part or that are BARGAINING beyond its scope.

Sec. § 143.3 Policy. 143.1 Reissuance and purpose. 143.2 Applicability and scope. It is the policy of the United States 143.3 Policy. under Public Law 95–610 that: 143.4 Prohibited activity. 1. Members of the armed forces of the Unit- 143.5 Activity not covered by this part. ed States must be prepared to fight and, if 143.6 Responsibility. 143.7 Definitions. necessary, to die to protect the welfare, se- 143.8 Guidelines. curity, and liberty of the United States and of their fellow citizens. AUTHORITY: 10 U.S.C. 801–940; and 10 U.S.C. 2. Discipline and prompt obedience to law- 976. ful orders of superior officers are essential and time-honored elements of the American SOURCE: 45 FR 84055, Dec. 22, 1980, unless otherwise noted. military tradition and have been reinforced from the earliest articles of war by laws and § 143.1 Reissuance and purpose. regulations prohibiting conduct detrimental to the military chain of command and lawful This rule is reissued to reflect revi- military authority. sions in policies and procedures for or- 3. The processes of conventional collective ganizations whose objective is to orga- bargaining and labor-management negotia- nize or represent members of the tion cannot and should not be applied to the Armed Forces of the United States for relationships between members of the armed purposes of negotiating or bargaining forces and their military and civilian superiors. about terms or conditions of military 4. Strikes, slowdowns, picketing, and other service. The policies and procedures set traditional forms of job action have no place forth herein are designed to promote in the armed forces. the readiness of the armed forces to de- 5. Unionization of the armed forces would fend the United States. The part does be incompatible with the military chain of not modify or diminish the existing au- command, would undermine the role, author- thority of commanders to control ac- ity, and position of the commander, and cess to, or maintain good order and dis- would impair the morale and readiness of the armed forces. cipline on, military installations; nor 6. The circumstances which could con- does it modify or diminish the obliga- stitute a threat to the ability of the armed tions of commanders and supervisors forces to perform their mission are not com- under 5 U.S.C. 7101–7135 with respect to parable to the circumstances which could

580 Office of the Secretary of Defense § 143.5 constitute a threat to the ability of Federal (ii) Recognize any military labor or- civilian agencies to perform their functions ganization as a representative of indi- and should be viewed in light of the need for vidual members of the armed forces in effective performance of duty by each mem- connection with any complaint or ber of the armed forces. grievance of any such member arising § 143.4 Prohibited activity. out of the terms or conditions of service of such member in the armed (a) Membership and enrollment. (1) A forces, or member of the armed forces, knowing (iii) Make any change with respect to of the activities or objectives of a par- the terms or conditions of service in ticular military labor organization, the armed forces of individual members may not: of the armed forces. (i) Join or maintain membership in (2) No person may use any military such organization; or installation for any meeting, march, (ii) Attempt to enroll any other picketing, demonstration, or other member of the armed forces as a mem- similar activity for the purpose of en- ber of such organization. gaging in any activity prohibited by (2) No person on a military installa- this Directive. tion, and no member of the armed (3) No member of the armed forces, forces, may enroll in a military labor and no civilian officer or employee, organization any member of the armed may permit or authorize the use of any forces or solicit or accept dues or fees military installation for any meeting, for such an organization from any march, picketing demonstration, or member of the armed forces. other similar activity which is for the (b) Negotiation or bargaining. (1) No purpose of engaging in any activity person on a military installation, and prohibited by this Directive. no member of the armed forces, may (d) Representation. A military labor negotiate or bargain, or attempt organization may not represent, or at- through any coercive act to negotiate tempt to represent, any member of the or bargain, with any civilian officer or armed forces before any civilian officer employee, or any member of the armed or employee, or any member of the forces, on behalf of members of the armed forces, in connection with any armed forces, concerning the terms or grievance or complaint of any such conditions of service of such members. member arising out of the terms or (2) No member of the armed forces, conditions of service of such member in and no civilian officer or employee, the armed forces. may negotiate or bargain on behalf of the United States concerning the terms § 143.5 Activity not covered by this or conditions of military service of part. members of the armed forces with any person who represents or purports to (a) This part does not limit the right represent members of the armed forces. of any member of the armed forces to: (c) Strikes and other concerted activity. (1) Join or maintain membership in (1) No person on a military installa- any lawful organization or association tion, and no member of the armed not constituting a ‘‘military labor or- forces, may organize or attempt to organization’’ as defined in § 143.7. ganize, or participate in, any strike, (2) Present complaints or grievances picketing, march, demonstration, or concerning the terms or conditions of other similar form of concerted action the service of such member in the involving members of the armed forces armed forces in accordance with estab- that is directed against the Govern- lished military procedures; ment of the United States and that is (3) Seek or receive information or intended to induce any civilian officer counseling from any source; or employee, or any member of the (4) Be represented by counsel in any armed forces, to: legal or quasi-legal proceeding, in ac- (i) Negotiate or bargain with any per- cordance with applicable laws and reg- son concerning the terms or conditions ulations; of service of any member of the armed (5) Petition the Congress for redress forces, of grievances; or

581 § 143.6 32 CFR Ch. I (7–1–97 Edition)

(6) Take such other administrative any grievance or complaint of any such action to seek such administrative or member arising out of the terms or judicial relief, as is authorized by ap- conditions of military service of such plicable law and regulations. member in the armed forces; or (b) This part does not prevent com- (3) Striking, picketing, marching, manders or supervisors from giving demonstrating, or any other similar consideration to the views of any mem- form of concerted action which is di- ber of the armed forces presented indi- rected against the Government of the vidually or as a result of participation United States and which is intended to on command-sponsored or authorized induce any civilian officer or employee, advisory council, committees, or orga- or any member of the armed forces, to: nizations. (i) Negotiate or bargain with any per- (c) This part does not prevent any ci- son concerning the terms or conditions vilian employed at a military installa- of military service of any member of tion from joining or being a member of the armed forces, an organization that engages in rep- (ii) Recognize any organization as a resentational activities with respect to representative of individual members terms or conditions of civilian employ- of the armed forces in connection with ment. complaints and grievances of such members arising out of the terms or § 143.6 Responsibility. conditions of military service of such (a) Heads of DoD Components shall: members in the armed forces, or (1) Ensure compliance with this part (iii) Make any change with respect to and with the guidelines contained in the terms or conditions of military enclosure 1. service of individual members of the (2) Establish procedures to ensure armed forces. that any action initiated under this (c) Civilian officer or employee. An em- part is reported immediately to the ployee, as defined in 5 U.S.C. 2105. Head of the DoD Component concerned. (d) Military installations. Includes in- (3) Report any action initiated under stallations, reservations, facilities, this part immediately to the Secretary vessels, aircraft, and other property of Defense. controlled by the Department of De- (b) The Assistant Secretary of Defense fense. (Manpower, Reserve Affairs, and Logis- (e) Negotiation or bargaining. A proc- tics) shall serve as the administrative ess whereby a commander or supervisor point of contact in the Office of the acting on behalf of the United States Secretary of Defense for all matters re- engages in discussions with a member lating to this part. or members of the armed forces (purporting to represent other such mem- § 143.7 Definitions. bers), or with an individual, group, or- (a) Member of the Armed Forces. A ganization, or association purporting member of the armed forces who is to represent such members, for the pur- serving on active duty, or a member of pose of resolving bilaterally terms or a Reserve component while performing conditions of military service. inactive duty training. (f) Terms or conditions of military serv- (b) Military labor organization. Any or- ice. Terms or conditions of military ganization that engages in or attempts compensation or duty including but to engage in: not limited to wages, rates of pay, duty (1) Negotiating or bargaining with hours, assignments, grievances, or dis- any civilian officer or employee, or putes. with any member of the armed forces, on behalf of members of the armed § 143.8 Guidelines. forces, concerning the terms or condi- The guidelines for making certain tions of military service of such mem- factual determinations are as follows: bers in the armed forces; (a) In determining whether an orga- (2) Representing individual members nization is a military labor organiza- of the armed forces before any civilian tion, whether a person is a member of officer or employee, or any member of a military labor organization, or the armed forces, in connection with whether such person or organization is

582 Office of the Secretary of Defense § 144.5 in violation of any provision of this Di- fense policies for jury service by mem- rective, the history and operation of bers of the Armed Forces on active the organization (including its con- duty. stitution and bylaws, if any) or person in question may be evaluated, along § 144.2 Applicability. with evidence on the conduct con- The provisions of this part apply to stituting a prohibited act. active-duty members of the Armed (b) In determining whether the com- Forces. mission of a prohibited act by a person can be imputed to the organization, ex- § 144.3 Definitions. amples of factors that may be considered include: the frequency of such act; (a) Armed Forces. The Army, Navy, the position in the organization of per- Air Force, Marine Corps, and the Coast sons committing the act; whether the Guard when it is operating as a Service commission of such act was known by in the Navy. the leadership of the organization; (b) State. Includes the fifty United whether the commission of the act was States, U.S. Territories, District of Co- condemned or disavowed by the leader- lumbia, and the Commonwealth of ship of the organization. Puerto Rico. (c) Any information about persons (c) Active duty. Full-time duty in the and organizations not affiliated with active military service of the United the Department of Defense needed to States. Includes full-time training make the determinations required by duty, annual training duty, active duty this Directive shall be gathered in for training, and attendance, while in strict compliance with the provisions the active military service, at a school of DoD Directive 5200.27 1, ‘‘Acquisition designated as a Service school by law of Information Concerning Persons and or by the Secretary of the Military De- Organizations not Affiliated With the partment concerned. Department of Defense,’’ January 7, (d) Operating forces. Those forces 1980, and shall not be acquired by coun- whose primary mission is to partici- terintelligence or security investiga- pate in combat and the integral sup- tive personnel. The Organization itself porting elements thereof. shall be considered a primary source of information. § 144.4 Policy. It is DoD policy to permit members PART 144—SERVICE BY MEMBERS of the Armed Forces maximally to ful- OF THE ARMED FORCES ON fill their civic responsibilities consist- STATE AND LOCAL JURIES ent with their military duties. For service members stationed in the Unit- Sec. ed States, servicing on a State or local 144.1 Purpose. jury is one such civic obligation. Serv- 144.2 Applicability. ice members are exempt from jury 144.3 Definitions. 144.4 Policy. duty, when it unreasonably would 144.5 Responsibilities. interfere with performance of their 144.6 Procedures. military duties or adversely affect the 144.7 Effective date and implementation. readiness of a unit, command, or activ- AUTHORITY: 10 U.S.C. 982. ity. SOURCE: 53 FR 23759, June 24, 1988, unless § 144.5 Responsibilities. otherwise noted. The Secretaries of the Military Depart- § 144.1 Purpose. ments, or designees, in accordance with This part implements 10 U.S.C. 982 to regulations prescribed by the Secretary establish uniform Department of De- concerned, shall determine whether Service members shall be exempt from 1 Copies may be obtained, if needed, from jury duty. This authority may be dele- the U.S. Naval Publications and Forms Cen- gated no lower than to commanders au- ter, 5801 Tabor Avenue, Philadelphia, PA thorized to convene special courts-mar- 19120. Attention: Code 301. tial.

583 § 144.6 32 CFR Ch. I (7–1–97 Edition)

§ 144.6 Procedures. PART 145—COOPERATION WITH The Secretaries of the Military De- THE OFFICE OF SPECIAL COUN- partments shall publish procedures SEL OF THE MERIT SYSTEMS PRO- that provide the following: TECTION BOARD (a) When a Service member on active duty is summoned to perform State or Sec. local jury duty, the Secretary con- 145.1 Purpose. cerned, or the official to whom such 145.2 Applicability and scope. authority has been delegated, shall de- 145.3 Definitions. cide if such jury duty would: 145.4 Policy. (1) Interfere unreasonably with the 145.5 Responsibilities. performance of the service member’s 145.6 Procedures. military duties. APPENDIX TO PART 145—LEGAL REPRESENTA- (2) Affect adversely the readiness of TION the unit, command, or activity to AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 133. which the member is assigned. (b) If such jury service would inter- SOURCE: 51 FR 17178, May 9, 1986, unless fere with the service member’s mili- otherwise noted. tary duties or adversely affect readi- § 145.1 Purpose. ness, the service member shall be exempted from jury duty. The decision of This part establishes policy, assigns the Secretary concerned, or the official responsibilities, and prescribes proce- to whom such authority has been dele- dures for cooperation with the Office of gated, shall be conclusive. Special Counsel (OSC) of the Merit (c) All general and flag officers, com- Systems Protection Board (MSPB) in manders and commanding officers, offi- fulfilling the responsibilities of the cers-in-charge, and all personnel as- Special Counsel under Pub. L. 95–454 signed to the operating forces, in a and 5 CFR 1201 and 1250 to conduct in- training status, or stationed outside vestigations of alleged prohibited per- the United States are exempt from sonnel practices and to ensure the in- serving on a State or local jury. Such vestigation of other allegations of im- jury service necessarily would interfere proper or illegal conduct referred to with the performance of military du- the Department of Defense by the OSC. ties by these members and adversely This part provides internal guidance to affect the readiness of the unit, com- DoD officials, and does not establish an mand, or activity to which they are as- independent basis for any person or or- signed. ganization to assert a right, benefit, or (d) Service members who serve on privilege. State or local juries shall not be charged leave or lose any pay or enti- § 145.2 Applicability and scope. tlements during the period of service. (a) This part applies to the Office of All fees accrued to the member for jury the Secretary of Defense (OSD), the service are payable to the United Military Departments, the Office of the States Treasury. Members are entitled Joint Chiefs of Staff (OJCS), the In- to any reimbursement from the State spector General, Department of De- or local jury authority for expenses in- fense (IG, DoD) and the Defense Agen- curred in the performance of jury duty, cies (hereafter referred to collectively such as for transportation costs or ‘‘as DoD Components’’). parking fees. (b) The provisions of this part that (e) Written notice of each exemption relate to prohibited personnel practices determination shall be provided to the do not apply to the Defense Intel- responsible State or local official who ligence Agency (DIA) or the National summoned an exempt member for jury Security Agency (NSA), as prescribed duty. by 5 U.S.C. 2302(a)(2)(C)(ii.). (c) This part does not restrict the IG, § 144.7 Effective date and implementa- DoD, in coordinating investigative ef- tion. forts on individual cases with the OSC This part is effective June 13, 1988. where concurrent jurisdiction exists.

584 Office of the Secretary of Defense § 145.3

§ 145.3 Definitions. written, with respect to any individual Improper or illegal conduct. (a) A viola- who requests, or is under consideration tion of any law, rule, or regulation in for, any personnel action, unless the connection with Government mis- recommendation or statement is based conduct; or on the personal knowledge or records (b) Mismanagement, a gross waste of of the person furnishing it, and con- funds, an abuse of authority, or a sub- sists of an evaluation of the work per- stantial and specific danger to public formance, ability, aptitude, or general health or safety. qualifications of the individual, or an Office of the Secretary of Defense evaluation of the character, loyalty, or (OSD). (a) The immediate offices of the suitability of such individual. Secretary, the Deputy Secretary, the (c) To coerce the political activity of Assistant Secretaries, Assistants to any person (including the providing of the Secretary, and other officials serv- any political contribution or service), ing the Secretary of Defense directly. or take any action against any em- (b) The field activities of the Sec- ployee or applicant for employment as retary of Defense. a reprisal for the refusal of any person (c) The Organization of the Joint to engage in such political activity. Chiefs of Staff. (d) To deceive or willfully obstruct (d) The Unified and Specified Com- any person with respect to such per- mands. son’s right to compete for employment. Personnel action. (a) An appointment. (e) To influence any person to with- (b) A promotion. draw from competition for any position (c) An adverse action under 5 U.S.C. for the purpose of improving or injur- 7501 et seq. or other disciplinary or cor- ing the prospects of any other person rective action. for employment. (d) A detail, transfer, or reassign- (f) To grant any preference or advan- ment. tage not authorized by law, rule, or (e) A reinstatement. regulation to any employee or appli- (f) A restoration. cant for employment (including defin- (g) A reemployment. ing the scope or manner of competition (h) A performance evaluation under 5 or the requirements for any position) U.S.C. 4301 et seq. for the purpose of improving or injur- (i) A decision concerning pay, bene- ing the prospects of any particular per- fits, or awards, or concerning edu- son for employment. cation or training if the education or (g) To appoint, employ, promote, ad- training may reasonably be expected to vance, or advocate for appointment, lead to an appointment, promotion, employment, promotion, or advance- performance evaluation, or other per- ment, in or to a civilian position any sonnel action. individual who is a relative (as defined (j) Any other significant change in in 5 U.S.C. 3110) of the employee if the duties or responsibilities that is incon- position is in the agency in which the sistent with the employee’s salary or employee is serving as a public official grade level. (as defined in 5 U.S.C. 3110) or over Prohibited personnel practice. Action which the employee exercises jurisdic- taken by an employee who has author- tion or control as an official. ity to take, direct others to take, rec- (h) To take or fail to take a person- ommend, or approve any personnel ac- nel action with respect to any em- tion: ployee or applicant for employment as (a) That discriminates for or against a reprisal for being a whistleblower. any employee or applicant for employ- (See whistleblower) ment on the basis of race, color, reli- (i) To take or fail to take a personnel gion, sex, national origin, age, handi- action against an employee or appli- capping condition, marital status, or cant for employment as a reprisal for political affiliation, as prohibited by the exercise of any appeal right grant- certain specified laws (see 5 U.S.C. ed by law, rule, or regulation. 2302(b)(1). (j) To discriminate for or against any (b) To solicit or consider any rec- employee or applicant for employment ommendation or statement, oral or on the basis of conduct that does not

585 § 145.4 32 CFR Ch. I (7–1–97 Edition) adversely affect the performance of the (2) Investigating and reporting on al- employee or applicant or the perform- legations of improper or illegal con- ance of others. duct forwarded to the Component by (k) To take or fail to take any other the OSC pursuant to 5 U.S.C. 1206(b) (2) personnel action if the taking of, or or (3). failure to take, such action violates (3) Facilitating orderly investigation any law, rule, or regulation implement- by the OSC of alleged prohibited per- ing, or directly concerning, the merit sonnel practices and other matters as- system principles contained in 5 U.S.C. signed for investigation to the OSC by 2301. law, such as the Freedom of Informa- Whistleblower. A present or former tion Act and the Hatch Act. Federal employee or applicant for Fed- (d) DoD Components shall cooperate eral employment who discloses infor- with the OSC by providing appropriate mation he or she reasonably believes assistance and information to its rep- evidences: resentatives during their investiga- (a) A violation of any law, rule, or tions and by furnishing to the OSC in- regulation. vestigators copies of releasable docu- (b) Mismanagement, a gross waste of ments requested under the authority of funds, or an abuse of authority. the Civil Service Reform Act of 1978, 5 (c) A substantial or specific danger to CFR 1250, the Privacy Act, and Civil public health or safety. Service Rule V. (d) Such disclosure qualifies if it is (e) Close coordination between DoD not specifically prohibited by statute and OSC personnel during an OSC in- and if such information is not specifi- vestigation is encouraged to eliminate cally required by Executive Order to be duplication of effort, and to avoid un- kept secret in the interest of national necessary delay in initiating, when ap- defense or the conduct of foreign af- propriate, corrective or disciplinary ac- fairs. tion. This coordination shall be con- (e) Where the information disclosed ducted in full recognition of the inde- affects only the personal situation of pendent statutory basis for the OSC, as the complaintant, it is generally to be provided in Pub. L. 95–454 and of the re- regarded as an allegation of a prohib- sponsibilities of the Department of De- ited personnel practice or violation of fense. other civil service law, rule, or regula- (f) OSC investigative requests involv- tion, and the complainant will not be ing classified information shall be ac- considered a whistleblower. corded special attention and prompt § 145.4 Policy. consideration under existing administrative procedures. It is DoD policy that: (g) When OSC and a DoD Component (a) Civilian personnel actions taken or an employee assigned DoD counsel by DoD management officials, civilian are engaged in litigation, release of in- and military, shall conform to laws and formation shall be accomplished pursu- regulations implementing established ant to MSPB rules of discovery (5 CFR merit system principles and must be 1201, subpart B.). free of any prohibited personnel practices, as described in 5 U.S.C. 2302 and § 145.5 Responsibilities. § 145.3 of this part. (b) It is the responsibility of each (a) The Secretaries of the Military De- DoD management official to take vig- partments and the Director, Defense Lo- orous corrective action and, when ap- gistics Agency (DLA), shall prescribe im- propriate, to initiate disciplinary plementing documents to ensure that: measures when prohibited personnel (1) The policies, standards, and proce- practices occur. dures set forth in this part are admin- (c) DoD Components shall cooperate istered in a manner that encourages with the Office of Special Counsel by: consistency in responding to investiga- (1) Promoting merit system prin- tions of alleged prohibited personnel ciples in civilian employment pro- practices. grams within the Department of De- (2) Alleged illegal or improper con- fense. duct referred to a Military Department

586 Office of the Secretary of Defense § 145.6 or the DLA by the OSC or by OSD is tion taken or to be taken in response carefully investigated. to an OSC finding of reasonable cause (3) There is full cooperation with the to believe there has been a violation of IG, DoD, and the General Counsel, De- law, rule, or regulation, not including a partment of Defense (GC, DoD), includ- prohibited personnel practice or allega- ing assignment of military and civilian tion referred to the Attorney General attorneys to represent employees sus- of the United States for appropriate ac- pected or accused by the OSC of com- tion. mitting a prohibited personnel practice (c) The Inspector General, Department or an otherwise illegal or improper act. of Defense (IG, DoD) shall: (b) The General Counsel, Department of (1) Investigate, or cause to be inves- Defense (GC, DoD) shall provide overall tigated, as appropriate, any complaint legal guidance, whether by the issu- referred to the Department of Defense ance of regulations or otherwise, on all by OSC. issues concerning cooperation with the (2) Coordinate, where feasible, inves- OSC. This authority extends to: tigative efforts by DoD Components (1) Ensuring that DoD legal counsel is assigned upon request to represent a and the OSC, with particular emphasis DoD employee suspected or accused by on those conducted or initiated by ac- the OSC of committing a prohibited tion of the OSC. personnel practice or an illegal or im- (3) Submit the results of any inves- proper act when the act complained of tigation conducted under this part to was within the scope of the employee’s the appropriate General Counsel. official responsibilities and such rep- (d) The Deputy Assistant Secretary of resentation is in the interest of the De- Defense (Administration) (DASD(A)) partment of Defense; or, in unusual sit- shall serve as the Senior Management uations, that outside legal counsel is Official, as described in § 145.6(b) con- engaged where the use of DoD counsel cerning allegations by the OSC of pro- would be inappropriate, and the same hibited personnel practices or other il- conditions are satisfied. legal or improper acts in the OSD. (2) Providing DoD legal counsel to (e) The General Counsels of the Mili- seek intervention for the purpose of tary Departments and the General Coun- representing the interests of OSD or a sel of the Defense Logistics Agency shall Defense agency (other than the DLA) have the same authority for their rein an MSPB hearing resulting from spective Components as given to the charges of misconduct against an em- General Counsel, DoD, under para- ployee of OSD or a Defense agency, graphs (b) (1) and (2) of this section. under the authority of the Civil Serv- ice Reform Act of 1978. § 145.6 Procedures. (3) Seeking the assistance of the De- (a) Allegations of improper or illegal partment of Justice in responding to conduct received from the OSC under 5 requests by employees for legal rep- U.S.C. 1206(b)(2), (3), or (c)(3). (1) Allega- resentation in obtaining judicial re- tions of improper or illegal conduct review of an order by the MSPB, under 5 U.S.C. 1207. ferred by the OSC to the Secretary of (4) Modifying § 145.3 and Appendix to Defense or to a Defense agency (other this part and issuing supplementary in- than the DLA) shall be forwarded to structions concerning all aspects of the IG, DoD. DoD cooperation with the OSC, includ- (2) Allegations of improper or illegal ing instructions on OSC investigations conduct referred to a Military Depart- of allegedly arbitrary and capricious ment or to the DLA by the OSC shall withholding of information under the be forwarded to the General Counsel of Freedom of Information Act or viola- that Component. tions of the Hatch Act. (3) Upon receipt of a referral under (5) Reviewing for adequacy and legal paragraph (a) (1) or (2) of this section sufficiency with the IG, DoD, each re- IG, DoD, or the GC of the Component port of an investigation that must be concerned, as appropriate, shall ensure personally reviewed by the Secretary compliance with the Civil Service Re- or Deputy Secretary of Defense on ac- form Act of 1978 by obtaining a suitable

587 Pt. 145, App. 32 CFR Ch. I (7–1–97 Edition) investigation of an allegation, includ- (3) The Senior Management Official ing compliance with time limits for re- shall: porting results of the investigation and (i) Establish a system under which an personal review of the report by the employee is identified to serve as the head of the Component when required. Liaison Officer for any OSC investiga- (4) Copies of each allegation referred tor who may initiate an investigation under paragraph (a)(2) shall be for- at a facility, base, or installation for warded by the General Counsel con- which the employee is assigned liaison cerned to the IG, DoD. duties. It shall be the responsibility of (b) OSC Investigations of Prohibited the Liaison Officer to: Personnel Practices. (1) The head of each (A) Assist the OSC investigator. DoD Component shall designate a Sen- (B) Ensure that all OSC requests for ior Management Official to: documents are in writing. (i) Serve as a point of contact in pro- (C) Process such requests, as well as viding assistance to the OSC in con- all requests for interviews. ducting investigations of alleged pro- (ii) Determine, to the extent prac- hibited activities before any designa- ticable, whether an investigation is tion of an attorney of record for the being, or has been, conducted that rep- Component or individual respondent licates in whole or in part the proposed for matters in litigation. or incomplete investigation by the (ii) Monitor those investigations. OSC, and convey that information to (iii) Ensure that appropriate Compo- the OSC whenever this might avoid re- nent personnel are fully apprised of the dundant investigative effort. nature and basis for an OSC investiga- (iii) Inform the General Counsel of tion, as well as the rights and duties of the Component concerned of any OSC Component personnel in regard to such investigation and consult with the investigations. General Counsel on any legal issue re- (iv) Ensure that any corrective or lated to an OSC investigation. disciplinary action considered appro- (iv) Ensure that Component person- priate because of facts disclosed by nel involved are given timely legal and such an investigation is accomplished policy advice, through arrangements under paragraph (b)(2), in a timely effected by the Liaison Officer, on the manner. nature and basis for an OSC investiga- (2) The designated Senior Manage- tion, the authority of the OSC, and the ment Official shall have authority to: rights and duties of Component person- (i) Refer to responsible officials rec- nel, including those set forth in Appen- ommendations by the OSC for correc- dix. tive action. (v) Inform the IG, DoD, of any OSC (ii) Seek OSC approval of proposed investigation of an alleged prohibited disciplinary action against an em- personnel practice that is identified as ployee for an alleged prohibited person- having resulted from a whistleblower nel practice or illegal or improper act complaint or involves an allegation of under investigation by the OSC when it otherwise illegal or improper conduct. is determined that such discipline is warranted. APPENDIX TO PART 145—LEGAL (iii) Ensure that disciplinary action REPRESENTATION against an employee adjudged at fault 1. An employee or member of the Armed following completion of an OSC inves- Forces asked to provide information (testi- tigation has been considered to avoid monial or documentary) to the OSC in the the need for a proceeding before the course of an investigation by that office may MSPB. obtain legal advice from DoD attorneys, both (iv) Ensure that information concern- civilian and military, on that employee’s or ing members of the Armed Forces who members’s rights and obligations. This in- are found by the Component to have cludes assistance at any interviews with OSC committed a prohibited personnel prac- investigators. However, the attorney-client relationship shall not be established unless tice or other violation of this Directive the employee is suspected or accused by the in the exercise of authority over civil- OSC of committing a prohibited personnel ian personnel is referred to appropriate practice or other illegal or improper act and military authority. has been assigned DoD counsel.

588 Office of the Secretary of Defense Pt. 145, App.

2. An employee who believes that he or she or for engaging in illegal or improper con- is suspected or has been accused by the OSC duct, regardless of whether that participa- of committing a prohibited personnel prac- tion or conduct is also the basis for discipli- tice or other illegal or improper act may ob- nary action proposed by the OSC. tain legal representation from the Depart- 8. After approval of an employee’s request, ment of Defense under the conditions pre- under section 4, above, a DoD attorney shall scribed in § 145(b)(1) of this part, except as be assigned (or, in unusual circumstances, provided in section 7, below. The attorney outside counsel retained) as the employee’s assigned shall be a military member or em- representative in matters pending before the ployee from another Component whenever an OSC or MSPB. This approval may be limited attorney from the same Component is likely to face a conflict between his or her ethical to representing the employee only with re- obligation to the employee client and to the spect to some of the pending matters if other Component employer, and in any case where specific matters of concern to the OSC or the suspected or accused employee has re- MSPB do not satisfy the requirements of his quested representation from another Compo- Directive. nent. Outside legal counsel may be retained 9. An attorney-client relationship shall be by the Component on behalf of the employee established and continued between the sus- only under unusual circumstances and only pected or accused employee and assigned with the personal approval of the General DoD counsel. Counsel of the Department of Defense. 10. In representing a DoD employee under 3. The General Counsel responsible for au- this part, a DoD attorney designated counsel thorizing representation shall determine for the employee shall act as a vigorous ad- whether a conflict is liable to occur if an at- vocate of the employee’s individual legal in- torney from the same Component is assigned terests before the OSC or MSPB; the attor- to represent the employee and, in that case ney’s professional responsibility to the De- or in a case in which the suspected or ac- partment of Defense and his or her employ- cused employee has requested representation ing Component will be satisfied by fulfilling from another Component, shall seek the as- this responsibility to the employee. Legal sistance of another General Counsel in ob- representation may be terminated only with taining representation from outside the the approval of the General Counsel who au- Component. The General Counsels of the thorized representation, and normally only Military Departments and the DLA shall en- on the basis of information not available at sure the availability of appropriately trained counsel for assignment to such cases. the time the attorney was assigned. 4. To obtain legal representation the em- 11. The attorney-client relationship may be ployee: terminated if the assigned DoD counsel for a. Must request legal representation, in the employee determines, with the approval writing, together with all process and plead- of the General Counsel who authorizes rep- ings served, and explain the circumstances resentation, that: that justify DoD legal assistance. a. The employee was acting outside the b. Indicate whether he or she has retained scope of his or her official duties when en- legal counsel from outside the Department of gaging in the conduct that is the basis for Defense. the OSC investigation or charge. c. Obtain a written certification from his b. Termination of the professional rep- or her supervisor that the employee was act- resentation is not in violation of the rules of ing within the scope of his of her official du- professional conduct applicable to the as- ties, and that no adverse or disciplinary per- signed counsel. sonnel action against the employee for the 12. The DoD attorney designated counsel conduct being investigated by the OSC has may request relief from the duties of rep- been initiated by the Component. resentation or counseling without being re- 5. Employee requests for legal representa- quired to furnish explanatory information tion must be approved by the General Coun- that might compromise the assurance to the sel, DoD, for employees of OSD or a Defense client of confidentiality. Agency (other than the DLA), or by the Gen- eral Counsel of a Military Department or the 13. This part authorizes cognizant DoD of- General Counsel of the DLA for employees of ficials to approve a represented employee’s those Components. request for travel, per diem, witness appear- 6. The conditions of legal representation ances, or other departmental support nec- must be explained to the accused employee essary to ensure effective legal representa- in writing and accepted in writing by that tion of the employee by the designated coun- employee. sel. 7. DoD resources may not be used to pro- 14. An employee’s participation in OSC in- vide legal representation for an employee vestigations, MSPB hearings, and other re- with respect to a DoD disciplinary action lated proceedings shall be considered official against the employee for committing or par- departmental business for time and attend- ticipating in a prohibited personnel practice ance requirements and similar purposes.

589 § 146.1 32 CFR Ch. I (7–1–97 Edition)

15. The following advice to employees ques- in a court, have been held in contempt tioned during the course of an OSC inves- of a court for failure to obey the tigation may be appropriate in response to court’s order, or have been ordered to the most frequent inquiries: show cause by a court why they should a. An employee may decline to provide a ‘‘yes’’ or ‘‘no’’ answer in favor of a more not be held in contempt for failing to qualified answer when this is necessary to obey the court’s order. ensure accuracy in responding to an OSC interviewer’s questions. § 146.2 Applicability. b. Requests for clarification of both ques- This part applies to the Office of the tions and answers are appropriate to avoid Secretary of Defense (OSD), the Mili- misinterpretation. tary Departments, the Joint Chiefs of c. Means to ensure verification of an inter- Staff (JCS), the Joint Staff, the Uni- view by OSC investigators are appropriate, whether the employee is or is not accom- fied and Specified Commands, the In- panied by a legal representative. Tape re- spector General of the Department of corders may only be used for this purpose Defense (IG, DoD), the Uniformed Serv- when: ices University of the Health Sciences (1) The recorder is used in full view. (USUHS), the Defense Agencies, and (2) All attendees are informed. the DoD Field Activities (hereafter re- (3) The OSC interrogator agrees to the tape ferred to collectively as ‘‘DoD Compo- recording of the proceeding. d. Any errors that appear in a written sum- nents’’). mary of an interview prepared by the interviewer should be corrected before the em- § 146.3 Definitions. ployee signs the statement. The employee is Court. Any judicial body in the Unit- not required to sign any written summary ed States with jurisdiction to impose that is not completely accurate. An em- criminal sanctions on a DoD member, ployee may make a copy of the summary for employee, or family member. his or her own use as a condition of signing. DoD Employee. A civilian employed by a DoD Component, including an in- PART 146—COMPLIANCE OF DOD dividual paid from nonappropriated MEMBERS, EMPLOYEES, AND funds, who is a citizen or national of FAMILY MEMBERS OUTSIDE THE the United States. UNITED STATES WITH COURT OR- DoD Member. An individual who is a DERS member of the Armed Forces on active duty and is under the jurisdiction of Sec. the Secretary of a Military Depart- 146.1 Purpose. ment, regardless whether that individ- 146.2 Applicability. ual is assigned to duty outside that 146.3 Definitions. Military Department. 146.4 Policy. Felony. A criminal offense that is 146.5 Responsibilities. punishable by incarceration for more 146.6 Procedures. than 1 year, regardless of the sentence AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 113; 10 that is imposed for commission of that U.S.C. 814; Pub. L. 100–456 section 721. offense. SOURCE: 54 FR 298, Jan. 5, 1989, unless oth- United States. The 50 States, the Dis- erwise noted. trict of Columbia, Puerto Rico, Guam, the Northern Mariana Islands, Amer- § 146.1 Purpose. ican Samoa, and the Virgin Islands. This part: (a) Implements section 721 of Pub. L. § 146.4 Policy. 100–456. It is DoD policy that: (b) Establishes policy and procedures (a) With due regard for mission re- for the return to the United States of, quirements, the provisions of applica- or other action affecting, DoD mem- ble international agreements, and on- bers and employees serving outside the going DoD investigations and courts- United States, and family members ac- martial, the Department of Defense companying them. shall cooperate with courts and State (c) Prescribes procedures for treating and local officials in enforcing court such individuals who have been orders relating to DoD members and charged with, or convicted of, a felony employees stationed outside the United

590 Office of the Secretary of Defense § 146.6

States, as well as their family mem- or local official concerning a court bers who accompany them, who have order described in § 146.4(a), the Head of been charged with, or convicted of, a the DoD Component concerned, or des- felony in a court, have been held in ignee, shall determine whether the re- contempt by a court for failure to obey quest is based on an order issued by a the court’s order, or have been ordered court of competent jurisdiction. At- to show cause why they should not be tempts shall be made to resolve the held in contempt for failing to obey the matter to the satisfaction of the court court’s order. without the return of, or other action (b) This part does not affect the au- affecting, the member, employee, or thority of DoD Components to cooper- family member (subject). Before action ate with courts and State and local of- is taken under this section, the subject ficials in enforcing orders against DoD shall be afforded the opportunity to members and employees outside the provide evidence of legal efforts to re- United States on matters not listed in sist the court order, or otherwise show paragraph (a) of this section. legitimate cause for noncompliance. If (c) This part does not create any the Head of the DoD Component con- rights or remedies and may not be re- cerned determines that such efforts lied on by any person, organization, or warrant a delay in taking action under other entity to allege a denial of such this section, the DoD Component Head rights or remedies. may grant a brief delay (not more than § 146.5 Responsibilities. 90 days). All delays promptly shall be reported to the ASD(FM&P) and to the (a) The General Counsel of the Depart- GC, DoD. ment of Defense (GC, DoD) shall: (1) If the request pertains to a felony (1) Issue Instructions and other guid- or to contempt involving the unlawful ance, as necessary, to implement this or contemptuous removal of a child part. from the jurisdiction of a court or the (2) Review and approve the imple- custody of a parent or another person menting documents issued by DoD Components under this part. awarded custody by court order, and (3) Coordinate on requests for excep- the matter cannot be resolved with the tion to the requirements of this part court without the return of the subject under § 146.5(b). to the United States, the Head of the (b) The Assistant Secretary of Defense DoD Component, or designee, promptly (Force Management and Personnel shall take the action prescribed in (ASD(FM&P)), with the concurrence of paragraphs (b) through (d) of this sec- the GC, DoD, shall grant exceptions on tion, unless the ASD(FM&P), or des- a case-by-case basis to the require- ignee, grants an exception. ments of § 146.6. In exercising this au- (2) If the request does not pertain to thority, the ASD(FM&P), on request by a felony or contempt involving the un- the DoD Component concerned, shall lawful or contemptuous removal of a give due consideration to the pertinent child from the jurisdiction of the court mission requirements, readiness, dis- or the custody of a parent or another cipline, and ongoing DoD investiga- person awarded custody by court order, tions and courts-martial. and if the matter cannot be resolved (c) The Heads of DoD Components with the court without the return of shall: the subject to the United States, the (1) Comply with this part. Head of the DoD Component, or des- (2) Issue Regulations implementing ignee, promptly shall take the action this part. prescribed in paragraphs (b) through (3) Report promptly to the (d) of this section, when deemed appro- ASD(FM&P) and GC, DoD, any action priate with the facts and cir- taken under paragraphs (a) (1) and (2) cumstances of each particular case, fol- of § 146.6. lowing consultation with legal staff. (b) If a DoD member is the subject of § 146.6 Procedures. the request, the member shall be or- (a) On receipt of a request for assist- dered, under 10 U.S.C. 814, to return ex- ance from a court, or a Federal, State, peditiously to an appropriate port of

591 § 146.6 32 CFR Ch. I (7–1–97 Edition) entry at Government expense, contin- from the Federal Service. Proposals to gent on the party requesting return of take such adverse action must be ap- the member providing for transpor- proved by the Head of the DoD Compo- tation, and escort, if desired, of the nent concerned, or designee. Such pro- member from such port of entry to the posals shall be coordinated with the jurisdiction of the party. The party re- cognizant civilian personnel office and questing return of the member shall be legal counsel. notified at least 10 days before the (d) If the family member of a DoD member’s return to the selected port of member or employee is the subject of a entry, absent unusual circumstances. request concerning the court order, the (c) If a DoD employee is the subject of the request concerning the court family member strongly shall be en- order, the employee strongly shall be couraged to comply with the court encouraged to comply with the court order. Failure to respond to the court order. Failure to respond to the court order may be a basis for withdrawing order may be a basis for withdrawal of the command sponsorship of the family command sponsorship and may be the member. basis for adverse action against the [54 FR 298, Jan. 5, 1989, as amended at 55 FR DoD employee, to include removal 34555, Aug. 23, 1990]

592