eDt 1SP9 01 c 6 98Jt192 O000Fm001Ft89 ft89 :SM\715.X fm1PsN:179125F pfrm01 Y:\SGML\179125F.XXX Sfmt8091 Fmt8091 Frm00001 PO00000 Jkt179125 10:19Oct06, 1998 VerDate 11
For sale by U.S. Government Printing Office Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402–9328
VerDate 11
?ii Table of Contents
Page Explanation ...... v
Title 32:
Subtitle A—Department of Defense (Continued):
Chapter VI—Department of the Navy ...... 5
Finding Aids:
Table of CFR Titles and Chapters ...... 535
Alphabetical List of Agencies Appearing in the CFR ...... 553
List of CFR Sections Affected ...... 563
iii
VerDate 11
To cite the regulations in this volume use title, part and section num- ber. Thus, 32 CFR 700.101 refers to title 32, part 700, section 101.
iv
VerDate 11
The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agen- cies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further sub- divided into parts covering specific regulatory areas. Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows: Title 1 through Title 16...... as of January 1 Title 17 through Title 27 ...... as of April 1 Title 28 through Title 41 ...... as of July 1 Title 42 through Title 50...... as of October 1 The appropriate revision date is printed on the cover of each volume. LEGAL STATUS The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510). HOW TO USE THE CODE OF FEDERAL REGULATIONS The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to deter- mine the latest version of any given rule. To determine whether a Code volume has been amended since its revision date (in this case, July 1, 1998), consult the ‘‘List of CFR Sections Affected (LSA),’’ which is issued monthly, and the ‘‘Cumulative List of Parts Affected,’’ which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule. EFFECTIVE AND EXPIRATION DATES Each volume of the Code contains amendments published in the Federal Reg- ister since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usu- ally not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cut- off date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text. OMB CONTROL NUMBERS The Paperwork Reduction Act of 1980 (Pub. L. 96–511) requires Federal agencies to display an OMB control number with their information collection request.
v
VerDate 11
vi
VerDate 11
RAYMOND A. MOSLEY, Director, Office of the Federal Register. July 1, 1998.
vii
VerDate 11
Title 32—NATIONAL DEFENSE is composed of six volumes. The parts in these volumes are arranged in the following order: parts 1–190, parts 191–399, parts 400– 629, parts 630–699, parts 700–799, and part 800 to end. The contents of these volumes represent all current regulations codified under this title of the CFR as of July 1, 1998.
The current regulations issued by the Department of Defense appear in the volumes containing parts 1–190 and parts 191–399; those issued by the Department of the Army appear in the volumes containing parts 400–629 and parts 630–699; those issued by the Department of the Navy appear in the volume containing parts 700–799, and those issued by the Department of the Air Force, Defense Logis- tics Agency, Selective Service System, Central Intelligence Agency, Information Security Oversight Office, National Security Council, Office of Science and Tech- nology Policy, Office for Micronesian Status Negotiations, Office of the Vice President of the United States, and Presidential Commission on the Assignment of Women in the Armed Forces appear in the volume containing part 800 to end.
For this volume, Melanie L. Marcec was Chief Editor. The Code of Federal Regulations is published under the direction of Frances D. McDonald, assisted by Alomha S. Morris.
ix
VerDate 11
VerDate 11
(This book contains parts 700 to 799)
Part
SUBTITLE A—DEPARTMENT OF DEFENSE (CONTINUED)
CHAPTER VI—Department of the Navy ...... 700
1
VerDate 25
3
VerDate 25
SUBCHAPTER A—UNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDS
Part Page 700 United States Navy regulations ...... 9 701 Availability of Department of the Navy records and publication of Department of the Navy docu- ments affecting the public ...... 39 705 Public affairs regulations ...... 121
SUBCHAPTER B—NAVIGATION 706 Certifications and exemptions under the Inter- national Regulations for Preventing Collisions at Sea, 1972 ...... 159 707 Special rules with respect to additional station and signal lights ...... 175
SUBCHAPTER C—PERSONNEL 716 Death gratuity ...... 177 718 Missing Persons Act ...... 182 719 Regulations supplementing the manual for courts- martial ...... 185 720 Delivery of personnel; service of process and sub- poenas; production of official records ...... 198 721–722 [Reserved] 723 Board for Correction of Naval Records ...... 215 724 Naval Discharge Review Board ...... 222 725 Release of official information for litigation pur- poses and testimony by Department of the Navy personnel ...... 255 726 Payments of amounts due mentally incompetent members of the Naval service ...... 269 727 Legal assistance ...... 271 728 Medical and dental care for eligible persons at Navy medical department facilities ...... 276 732 Nonnaval medical and dental care ...... 340 733 Assistance to and support of dependents; paternity complaints ...... 354
5
VerDate 11
Part Page 734 Garnishment of pay of Naval military and civilian personnel for collection of child support and ali- mony ...... 359 735 Reporting births and deaths in cooperation with other agencies ...... 361
SUBCHAPTER D—PROCUREMENT, PROPERTY, PATENTS, AND CONTRACTS 736 Disposition of property ...... 363 744 Policies and procedures for the protection of pro- prietary rights in technical information proposed for release to foreign governments ...... 367 746 Licensing of government inventions in the custody of the Department of the Navy ...... 368
SUBCHAPTER E—CLAIMS 750 General claims regulations ...... 374 751 Personnel claims regulations ...... 398 752 Admiralty claims ...... 427 755 Claims for injuries to property under Article 139 of the Uniform Code of Military Justice ...... 430 756 Nonappropriated-fund claims regulations ...... 433 757 Affirmative claims regulations ...... 435
SUBCHAPTER F—ISLANDS UNDER NAVY JURISDICTION 761 Naval Defensive Sea Areas; Naval Airspace Res- ervations, areas under Navy administration, and the Trust Territory of the Pacific Islands ...... 444 762 Midway Islands Code ...... 456 763 Rules governing public access ...... 473
SUBCHAPTER G—MISCELLANEOUS RULES 765 Rules applicable to the public ...... 476 766 Use of Department of the Navy aviation facilities by civil aircraft ...... 480 767–769 [Reserved] 770 Rules limiting public access to particular installa- tions ...... 490 771–774 [Reserved] 775 Procedures for implementing the National Envi- ronmental Policy Act ...... 501 776 Professional conduct of attorneys practicing under the supervision of the judge advocate general ..... 509 777–799 [Reserved]
CROSS REFERENCES: Panama Canal: See 35 CFR chapter I.
6
VerDate 11
National Oceanic and Atmospheric Administration, Department of Commerce: See 15 CFR chapter IX. Coast Guard, Department of Transportation: See 33 CFR chapter I; 46 CFR chapter I. Office of the Secretary of Defense: See 32 CFR chapter I. Department of the Army: See 32 CFR chapter V. Navigation and Navigable Waters (Anchorage Bridge, Danger Zone, Navigation, and Oil Pol- lution Regulations, etc.): See 33 CFR chapters I and II. Selective Service System: See 32 CFR chapter XVI. Department of Veterans Affairs: See 38 CFR chapter I.
7
VerDate 25
PART 700—UNITED STATES NAVY 700.319 Chief of Naval Reserve. 700.320 Commandants of Naval Districts. REGULATIONS 700.321 President, Board of Inspection and Survey. Subpart A—The Department of the Navy Subpart D—The Commandant of the Sec. Marine Corps 700.101 Origin and authority. 700.102 Objectives. 700.401 Senior officer of the Marine Corps. 700.103 Composition. 700.402 Succession to duties. 700.104 The principal parts of the Depart- 700.403 Authority and responsibilities. ment of the Navy. 700.404 Specific responsibilities. 700.105 Definition of terms. 700.405 Composition of the Marine Corps. 700.406 Relationships between the Com- Subpart B—The Secretary of the Navy mandant of the Marine Corps and the Chief of Naval Material. 700.201 Responsibilities of the Secretary of 700.407 Serving with the Army by order of the Navy. the President. 700.202 Succession to duties. 700.203 The Civilian Executive Assistants. Subpart E—The United States Coast Guard 700.204 The staff assistants. (When Operating As a Service of the 700.205 The Chief of Naval Research, The Judge Advocate General, The Deputy Navy) Comptroller of the Navy. 700.501 Relationship and operation as a 700.206 Authority over organizational mat- service in the Navy. ters. 700.502 Commandant of the Coast Guard. 700.503 Duties and responsibilities. Subpart C—The Chief of Naval Operations 700.301 Senior Military Officer of the De- Subpart F—Commanders in Chief and partment of the Navy. Other Commanders 700.302 Succession to duties. 700.601 Titles of commanders. 700.303 Specific authority and duties of the 700.602 Responsibility and authority of a Vice Chief of Naval Operations. commander. 700.304 Authority and responsibility. 700.603 To announce assumption of com- 700.305 Naval Vessel Register, classification mand. of naval craft, and status of ships and 700.604 Readiness. service craft. 700.605 Observance of international law. 700.306 The Chief of Naval Material. 700.307 The Chief of Naval Personnel and Subpart G—The Commanding Officer the Chief, Bureau of Medicine and Sur- gery. 700.701 Applicability. 700.308 Naval Inspector General. 700.702 Responsibility. 700.309 Commander in Chief, U.S. Atlantic 700.703 [Reserved] Fleet. 700.704 Organization of commands. 700.310 Commander in Chief, U.S. Pacific 700.705–700.708 [Reserved] Fleet. 700.709 Unauthorized persons on board. 700.311 Commander in Chief, U.S. Naval 700.710 Control of passengers. Forces, Europe. 700.711 Authority over passengers. 700.312 Commander, Military Sealift Com- 700.712 [Reserved] mand. 700.713 Person found under incriminating 700.313 Commander, Naval Intelligence circumstances. Command. 700.714 Rules for visits. 700.314 Commander, Naval Telecommuni- 700.715 Dealers, tradesmen, and agents. cations Command. 700.716 Marriages on board. 700.315 Oceanographer of the Navy. 700.717 Postal matters. 700.316 Commander, Naval Oceanography 700.718–700.719 [Reserved] Command. 700.720 Deaths. 700.317 Commander, Naval Security Group 700.721 The American National Red Cross. Command. 700.722–700.723 [Reserved] 700.318 Chief of Naval Education and Train- 700.724 Maintenance of Logs. ing. 700.725 Status of Logs.
9
VerDate 25
700.726 Records. 700.923 Precautions for health. 700.727–700.728 [Reserved] 700.924–700.934 [Reserved] 700.729 Delivery of personnel to civil au- 700.935 Exercise of power of consul. thorities and service of subpoena or 700.936–700.939 [Reserved] other process. 700.940 Granting of asylum and temporary 700.730–700.732 [Reserved] refuge. 700.733 Responsibility of a master of an in- service ship of the Military Sealift Com- Subpart J—Rights and Responsibilities of mand. Persons in the Department of the Navy 700.734 Relations with merchant seamen. 700.735 [Reserved] 700.1115 Control of official records. 700.736 Physical security. 700.1116 Disclosure and publication of infor- 700.737 Effectiveness for service. mation. 700.738–700.739 [Reserved] 700.1117 Official records in civil courts. 700.740 Search by foreign authorities. 700.1118–700.1119 [Reserved] 700.741–700.746 [Reserved] 700.1120 Rules for preventing collisions, 700.747 Status of boats. afloat and in the air. 700.748 [Reserved] 700.1121–700.1132 [Reserved] 700.749 Work, facilities, supplies, or services 700.1133 Use of title for commercial enter- for other Government departments, prises. State or local governments, foreign gov- 700.1134–700.1142 [Reserved] ernments, private parties, and morale, 700.1143 Return of Government property on welfare, and recreational activities. release from active service. 700.750–700.751 [Reserved] 700.1144 Issue or loan of public property. 700.752 Responsibility for safety of ships and 700.1145–700.1149 [Reserved] craft at a naval station or shipyard. 700.1150 Alcoholic liquors. 700.753 Ships and craft in drydock. 700.1151 Responsibilities concerning mari- 700.754 Pilotage. juana, narcotics, and other controlled 700.755 Safe navigation and regulations gov- substances. erning operation of ships and aircraft. 700.1152–700.1160 [Reserved] 700.756 Duties of the prospective command- 700.1161 Endorsement of commercial prod- ing officer of a ship. uct or process. 700.757 Authority of the commanding officer or prospective commanding officer of a Subpart K—Purpose and Force of Regula- naval nuclear powered ship. tions within the Department of the 700.758 Inspection incident to commission- Navy ing of ships. 700.759–700.762 [Reserved] 700.1201 Purpose and force of United States 700.763 Quarantine. Navy Regulations. 700.764 Customs and immigration inspec- 700.1202 Issuances concerning matters over tions. which control is exercised. 700.765 Environmental pollution. AUTHORITY: 10 U.S.C. 6011; 38 FR 7892, Mar. 700.766–700.767 [Reserved] 26, 1973. 700.768 Care of ships, aircraft, vehicles, and their equipment. SOURCE: 39 FR 7135, Feb. 25, 1974, unless otherwise noted. Subpart H—Precedence, Authority, and Command Subpart A—The Department of the 700.811 Exercise of authority. Navy 700.812–700.816 [Reserved] 700.817 Authority of an officer who succeeds § 700.101 Origin and authority. to command. (a) The naval affairs of the country 700.818–700.829 [Reserved] began with the war for independence, 700.830 Authority of a sentry. the American Revolution. On 13 Octo- 700.831–700.833 [Reserved] 700.834 Orders to active service. ber 1775, Congress passed legislation forming a committee to purchase and Subpart I—The Senior Officer Present arm two ships. This in effect created the Continental Navy. Two battalions 700.901 The senior officer present. of Marines were authorized on 10 No- 700.902 [Reserved] vember 1775. Under the Constitution, 700.903 Authority and responsibility. 700.904 Authority of senior officer of the the First Congress on 7 August 1789, as- Marine Corps present. signed responsibility for the conduct of 700.905–700.921 [Reserved] naval affairs to the War Department. 700.922 Shore patrol. On 30 April 1798, the Congress estab- lished a separate Navy Department 10
VerDate 25
with the Secretary of the Navy as its executive part of the Department of chief officer. On 11 July 1798, the U.S. the Navy; the Headquarters, United Marine Corps was established as a sepa- States Marine Corps; the entire operat- rate service, and in 1834 was made a ing forces, including naval aviation, of part of the Department of the Navy. the United States Navy and of the (b) The National Security Act of 1947, United States Marine Corps, and the as amended, is the fundamental law reserve components of those operating governing the position of the Depart- forces; and all shore activities, head- ment of the Navy in the organization quarters, forces, bases, installations, for national defense. In 1949, the Act activities, and functions under the con- was amended to establish the Depart- trol or supervision of the Secretary of ment of Defense as an Executive De- the Navy. It includes the United States partment, and to establish the Depart- Coast Guard when it is operating as a ments of the Army, Navy and Air service in the Navy. Force (formerly established as Execu- tive Departments by the 1947 Act) as § 700.104 The principal parts of the De- military departments within the De- partment of the Navy. partment of Defense. (a) Functionally, organizationally (c) The responsibilities and authority and geographically the Department of of the Department of the Navy are the Navy has from practically the be- vested in the Secretary of the Navy, ginning of the Federal Government and are subject to his reassignment under the Constitution consisted of and delegation. The Secretary is bound three parts: The Operating Forces of by the provisions of law, the direction the Navy, the Navy Department, and of the President and the Secretary of the Shore Establishment. Defense, and, along with all Govern- (b) The operating forces of the Navy ment agencies, the regulations of cer- comprise the several fleets, sea-going tain nondefense agencies in their re- forces, sea-frontier forces, district spective areas of functional respon- forces, Fleet Marine Forces, other as- sibility. signed Marine Corps Forces, the Mili- tary Sealift Command, and other forces § 700.102 Objectives. and activities that may be assigned The fundamental objectives of the thereto by the President or the Sec- Department of the Navy, within the retary of the Navy. Department of Defense, are (c) The Navy Department refers to (a) To organize, train, equip, prepare, the central executive offices of the De- and maintain the readiness of Navy partment of the Navy located at the and Marine Corps forces for the per- seat of the government. The Navy De- formance of military missions as di- partment is organizationally com- rected by the President or the Sec- prised of the Office of the Secretary of retary of Defense, and the Navy which includes his Civilian (b) To support Navy and Marine Executive Assistants, Offices of his As- Corps forces, including the support of sistants, and the headquarters organi- such forces and the forces of other zations of the Office of Naval Research, military departments, as directed by the Office of the Judge Advocate Gen- the Secretary of Defense, which are as- eral, and the Office of the Comptroller signed to unified or specified com- of the Navy; the Office of the Chief of mands. Support, as here used, includes Naval Operations, the Headquarters, administrative, personnel, material United States Marine Corps; and, under and fiscal support, and technological the command of the Chief of Naval Op- support through research and develop- erations, the Headquarters, Naval Ma- ment. terial Command, and the headquarters organizations of the Bureau of Naval § 700.103 Composition. Personnel and the Bureau of Medicine The Department of the Navy is sepa- and Surgery. In addition, the Head- rately organized under the Secretary of quarters, United States Coast Guard, is the Navy. It operates under the author- included when the United States Coast ity, direction, and control of the Sec- Guard is operating as a service in the retary of Defense. It is composed of the Navy.
11
VerDate 25
(d) The shore establishment is com- erally the water-borne utilitarian craft prised of shore activities with defined not classified as ships or boats. missions approved for establishment by (h) Boats. A classification of water- the Secretary of the Navy. borne craft which comprises generally the water-borne craft suitable pri- § 700.105 Definition of terms. marily for shipboard and similar use. The following definitions shall apply (i) Active status. A status of ships and to the regulations in this part: service craft. Active status ships or (a) Command—(DOD). (1) The author- service craft are assigned to the active ity which a commander in the military fleets and to their supporting activities service lawfully exercises over his sub- or are ships of the Military Sealift ordinates by virtue of rank or assign- Command which are titled in the ment. Command includes the authority United States or are operated under and responsibility for effectively using available resources and for planning long-term bareboat charter. Ships and the employment of, organizing, direct- service craft in active status are ‘‘in ing, coordinating, and controlling mili- commission’’ or ‘‘in service.’’ tary forces for the accomplishment of (j) Inactive status. A status of ships assigned missions. It also includes re- and service craft. Inactive status ships sponsibilities for health, welfare, mo- and service craft are in reserve and not rale, and discipline of assigned person- currently required for duty in the ac- nel. tive fleets or supporting forces. Ships (2) An order given by a commander; and service craft in inactive status are that is, the will of the commander ex- ‘‘in commission, in reserve,’’ or ‘‘in pressed for the purpose of bringing service, in reserve’’ or ‘‘out of commis- about a particular action. sion, in reserve’’ or ‘‘out of service, in (3) A unit or units, an organization, reserve.’’ or an area under the command of one (k) Special status. A status of ships individual. and service craft. Ships and service (4) To dominate by a field of craft in special status shall include weaponfire or by observation from a those units for which the Navy is superior position. charged with certain responsibilities (b) Superior. A commander or officer by reason of custody or title, but which in command of a senior force, unit, or organization in line of command. Also, are not in the active or inactive status. a senior person in line of command. Ships and service craft in special sta- (c) Flag and general officers. Flag offi- tus are ‘‘in commission, special’’ or ‘‘in cer means an officer of the Navy or service, special’’ or ‘‘out of commis- Coast Guard above the grade of cap- sion, special’’ or ‘‘out of service, spe- tain. General officers means an officer cial.’’ of the Marine Corps, the Army, or the (l) Vessel. Includes every description Air Force above the grade of colonel. of watercraft or other artificial con- (d) Person in the naval service. Means trivance used, or capable of being used, a person, male or female, appointed or as a means of transportation on water. enlisted in, or inducted or conscripted (1 U.S.C. 3). into, the Navy or the Marine Corps. (m) Naval activity. A unit of the De- Also, same meaning for member of the partment of the Navy, of distinct iden- naval service. tity, and established under an officer in (e) Persons in the Department of the command or in charge. Navy. All persons in the naval service (n) Naval station. A naval activity on and civilians employed under the De- shore, having a commanding officer, partment of the Navy. and located in an area having fixed (f) Ships. A classification of water- boundaries, within which all persons borne craft which comprises generally the oceangoing vessels and craft of the are subject to naval jurisdiction and Navy, and such other water-borne craft immediate authority of the command- as may be assigned this classification. ing officer. (g) Service craft. A classification of [41 FR 18074, Apr. 30, 1976] water-borne craft which comprises gen-
12
VerDate 25
Subpart B—The Secretary of the the administration of the affairs of the Navy Department of the Navy. In carrying out these duties, they shall do so in § 700.201 Responsibilities of the Sec- harmony with the statutory position of retary of the Navy. the Chief of Naval Operations as ‘‘the The Secretary of the Navy is the principal naval adviser and naval exec- head of the Department of the Navy. utive to the Secretary on the conduct Under the direction, authority, and of activities of the Department of the control of the Secretary of Defense, the Navy’’ and the responsibilities of the Secretary of the Navy is responsible for Chief of Naval Operations and the Com- the policies and control of the Depart- mandant of the Marine Corps as set ment of the Navy, including its organi- forth in these regulations. The Civilian zation, administration, operation, and Executive Assistants are authorized efficiency. and directed to act for the Secretary [39 FR 7135, Feb. 25, 1974, as amended at 45 within their assigned areas of respon- FR 80277, Dec. 4, 1980] sibility. (c) The Under Secretary of the Navy § 700.202 Succession to duties. is designated as the deputy and prin- (a) When there is a vacancy in the Of- cipal assistant to the Secretary of the fice of the Secretary of the Navy, or Navy, and acts with full authority of during the absence or disability of the the Secretary in the general manage- Secretary, the Under Secretary of the ment of the Department of the Navy, Navy, and, in the order prescribed by and supervision of offices and organiza- the Secretary of the Navy, the Assist- tions as assigned by the Secretary. ant Secretaries of the Navy succeed to (d) The Assistant Secretary of the the duties of the Secretary. If the Sec- Navy (Financial Management) is the retary does not prescribe an order for Comptroller of the Navy, and is respon- succession to the duties of that office, sible for all matters related to the fi- the Assistant Secretaries shall succeed nancial management of the Depart- to those duties after the Under Sec- ment of the Navy, including budgeting, retary in the order in which they took accounting, disbursing, financing, office as Assistant Secretaries. progress and statistical reporting, au- (b) During the temporary absence of diting, management information sys- the above officials, the Chief of Naval tems, automatic data processing sys- Operations or, in his absence, the Vice tems and equipment (less than integral Chief of Naval Operations succeeds to the duties of the Secretary. to a weapons system), and supervision of offices and organizations as assigned [39 FR 7135, Feb. 25, 1974, as amended at 45 by the Secretary. Under the Comptrol- FR 80277, Dec. 4, 1980] ler, the Deputy Comptroller of the § 700.203 The Civilian Executive As- Navy shall, in addition to performing sistants. other duties assigned, serve as an ad- viser and assistant to the Chief of (a) The Civilian Executive Assistants Naval Operations and the Commandant to the Secretary of the Navy are the of the Marine Corps with respect to fi- Under Secretary of the Navy, the As- sistant Secretaries of the Navy, the nancial and budgetary matters. General Counsel of the Navy and the (e) The Assistant Secretary of the Deputy Under Secretary of the Navy. It Navy (Manpower, Reserve Affairs and is the policy of the Secretary to assign Logistics) is responsible for the overall Department-wide responsibilities es- supervision of manpower and reserve sential to the efficient administration component affairs of the Department of of the Department of the Navy to and the Navy, including policy and admin- among his Civilian Executive Assist- istration of affairs related to military ants. (active and inactive) and civilian per- (b) The Civilian Executive Assist- sonnel; all stages of the acquisition of ants, within their respective areas of naval ships funded by the appropria- responsibility, are the principal advis- tion ‘‘Ships Construction, Navy’’; all ers and assistants to the Secretary on Department of the Navy acquisition
13
VerDate 25
programs following full scale produc- General Counsel; and such other duties tion decision (Milestone III); the busi- as the Secretary may assign. The re- ness, contractual, manpower, and logis- sponsibilities of the General Counsel tic support aspects of the Department are not intended to infringe upon, or of the Navy Acquisition programs, in- interfere with, the responsibilities of cluding policy and administration of the Judge Advocate General for the ad- affairs related thereto; the mainte- ministration of military justice and nance, alteration, supply, distribution, such other matters as may be assigned and disposal of material; all transpor- to that officer by statute or by the Sec- tation matters; the acquisition, con- retary. struction, utilization, improvement al- (h) The Deputy Under Secretary of teration, maintenance, and disposal of the Navy is responsible to the Sec- real estate and facilities, including retary or Under Secretary for acting as capital equipment utilities, housing, a focal point and coordinator for the and public quarters; printing and publi- resolution of problems which require cations; labor relations with respect to high-level special attention. In addi- contractors with the Department of tion, the Deputy Under Secretary is the Navy; industrial security; the Mu- the major claimant for funds and man- tual Defense Assistance Program, as power supporting the Department of related to the supplying of material, the Navy Secretariat, Staff Offices, and including Foreign Military Sales; and the Department of the Navy General supervision of offices and organizations Gift Fund. The Deputy Under Sec- as assigned by the Secretary. retary is responsible for general over- (f) The Assistant Secretary of the sight, policy and procedure formula- Navy (Research, Engineering and Sys- tion and coordination regarding envi- tems) is responsible for all technical ronmental matters affecting the De- aspects of all stages of Department of partment of the Navy, with the excep- the Navy acquisition programs through tion of occupational health and safety the full-scale production decision and employee working conditions. (Milestone III), including policy and administration of affairs related there- [39 FR 7135, Feb. 25, 1974, as amended at 45 FR 80277, Dec. 4, 1980] to, with the exception of the acquisi- tion of naval ships funded by the appro- § 700.204 The staff assistants. priation ‘Ships Construction, Navy’; the technical aspects of the mainte- The Staff Assistants to the Secretary nance or alteration of material; all of the Navy are the Chief of Informa- matters related to research, develop- tion; the Chief of Legislative Affairs; ment, engineering, test, and evaluation the Director, Office of Program Ap- efforts within the Department of the praisal; and the heads of such other of- Navy, including management of the ap- fices and boards as may be established propriation, ‘Research, Development, by law or by the Secretary for the pur- Test and Evaluation, Navy’; oceanog- pose of assisting the Secretary or one raphy; ocean engineering and closely or more of the Civilian Executive As- related matters; and supervision of of- sistants in the administration of the fices and organizations as assigned by Department of the Navy. The foregoing the Secretary. shall supervise all functions and activi- (g) The General Counsel of the Navy ties internal to their offices and as- is responsible for providing legal ad- signed shore activities, if any, and vice, counsel, and guidance to the Sec- shall be responsible to the Secretary or retary and the other Civilian Executive to one of the Civilian Executive Assist- Assistants on any matter that they ants for the utilization of resources by may direct or that the General Counsel and the operating efficiency of all ac- determines should be brought to their tivities under their supervision. The attention. The General Counsel is also duties of the individual Staff Assist- responsible for providing all necessary ants and their respective offices will be legal advice, counsel, and guidance to as provided by law or as assigned by the staffs of the Secretary and the the Secretary. other Civilian Executive Assistants; [39 FR 7135, Feb. 25, 1974, as amended at 45 the supervision of the Office of the FR 80278, Dec. 4, 1980]
14
VerDate 25
§ 700.205 The Chief of Naval Research, Subpart C—The Chief of Naval The Judge Advocate General, The Operations Deputy Comptroller of the Navy. The Chief of Naval Research shall § 700.301 Senior Military Officer of the command the Office of Naval Research Department of the Navy. and assigned shore activities. The (a) The Chief of Naval Operations is Judge Advocate General shall com- the senior military officer of the De- mand the Office of the Judge Advocate partment of the Navy, and takes prece- General and assigned shore activities. dence above all other officers of the The Deputy Comptroller of the Navy naval service, except an officer of the shall command the Office of the Comp- naval service who is serving as Chair- troller of the Navy and assigned shore man of the Joint Chiefs of Staff. (b) The Chief of Naval Operations is activities. Each of them shall be re- the principal naval adviser to the sponsible to the Secretary of the Navy President and to the Secretary of the or to one of the Civilian Executive As- Navy on the conduct of war, and the sistants, as assigned, for the utilization principal naval adviser and naval exec- of resources by and the operating effi- utive to the Secretary on the conduct ciency of all activities under their re- of the activities of the Department of spective commands. The duties of the the Navy. Chief of Naval Research, the Judge Ad- (c) The Chief of Naval Operations is vocate General, and the Comptroller of the Navy member of the Joint Chiefs of the Navy will be as provided by law or Staff and is responsible, in coordina- as assigned by the Secretary. tion with the Commandant of the Ma- rine Corps, for keeping the Secretary of [39 FR 7135, Feb. 25, 1974, as amended at 45 the Navy fully informed on matters FR 80278, Dec. 4, 1980] considered or acted upon by the Joint § 700.206 Authority over organiza- Chiefs of Staff. In this capacity, he is tional matters. responsible, under the President and the Secretary of Defense, for duties ex- Subject to the approval of the Sec- ternal to the Department of the Navy, retary of the Navy or guidance here- as prescribed by law. after furnished by him, the Civilian Ex- ecutive Assistants, the Chief of Naval [39 FR 7135, Feb. 25, 1974, as amended at 45 FR 80278, Dec. 4, 1980] Operations, the Commandant of the Marine Corps, the Chief of Naval Re- § 700.302 Succession to duties. search, the Judge Advocate General, The Vice Chief of Naval Operations, the Deputy Comptroller of the Navy, and then the officers of the Navy, eligi- and the Staff Assistants are individ- ble for command at sea, on duty in the ually authorized to organize, assign, office of the Chief of Naval Operations and reassign responsibilities within in the order of their seniority, shall, their respective commands or offices in unless otherwise directed by the Presi- the organization of the Department of dent, perform the duties of the Chief of the Navy, including the establishment Naval Operations during his absence, and disestablishment of such compo- or disability, or in the event of a tem- nent organizations as may be nec- porary vacancy in that office. essary, subject to the following: (a) The authority to disestablish may § 700.303 Specific authority and duties not be exercised with respect to any or- of the Vice Chief of Naval Oper- ations. ganizational component of the Depart- ment established by law. (a) The Vice Chief of Naval Oper- (b) The Secretary retains the author- ations has such authority and duties with respect to the Department of the ity to approve the establishment of and Navy as the Chief of Naval Operations, disestablishment of shore activities, with the approval of the Secretary of which will be done in accordance with the Navy, may delegate to or prescribe procedures prescribed by the Secretary. for him. Orders issued by the Vice [39 FR 7135, Feb. 25, 1974, as amended at 45 Chief of Naval Operations in perform- FR 80278, Dec. 4, 1980] ing such duties have the same force
15
VerDate 25
and effect as those issued by the Chief personnel and the prestige of a Navy of Naval Operations. career. (b) Orders issued by the Vice Chief of (4) To plan and provide health care Naval Operations in performing other for personnel of the naval service and duties have the same force and effect their dependents. as those issued by the Chief of Naval (5) To direct the organization, admin- Operations. istration, training, and support of the Naval Reserve. § 700.304 Authority and responsibility. (6) To inspect and investigate compo- (a) Internal to the administration of nents of the Department of the Navy to the Department of the Navy, the Chief determine and maintain efficiency, dis- of Naval Operations, under the direc- cipline, readiness, effectiveness, and tion of the Secretary of the Navy, shall economy, except in those areas where command the Operating Forces of the such responsibility rests with the Com- Navy. The Chief of Naval Operations mandant of the Marine Corps. shall also command the Naval Material (7) To determine the needs of naval Command, the Bureau of Naval Person- forces and activities for research, de- nel, and the Bureau of Medicine and velopment, test, and evaluation; to Surgery. In addition, he shall command plan and provide for the conduct of de- such shore activities as may be as- velopment, test, and evaluation which signed to him by the Secretary. He are adequate and responsive to long- shall be responsible to the Secretary range objectives, immediate require- for the utilization of resources by, and ments, and fiscal limitations; and to the operating efficiency of, all com- provide assistance to the Assistant mands and activities under his com- Secretary of the Navy (Research and mand. Development) in the direction, review, (b) In addition, the Chief of Naval Op- and appraisal of the overall Navy erations has the following specific re- RDT&E Program to insure fulfillment sponsibilities: of stated requirements. (1) To organize, train, equip, prepare, (8) To formulate Navy strategic plans and maintain the readiness of Navy and policies and participate in the for- forces, including those for assignment mulation of joint and combined strate- to unified or specified commands for gic plans and policies and related com- the performance of military missions mand relationships. as directed by the President, the Sec- (9) To budget for commands, bureaus, retary of Defense, or the Joint Chiefs and offices assigned to the command of of Staff. Naval forces, when assigned to the Chief of Naval Operations, and a unified or specified command, are other activities and programs as as- under the full operational command of signed, except as may be otherwise di- the commander to whom they are as- rected by the Secretary of the Navy. signed. (c) The Chief of Naval Operations, (2) To determine and direct the ef- under the direction of the Secretary of forts necessary to fulfill current and the Navy, shall (except for those areas future requirements of the Navy (less wherein such responsibility rests with Fleet Marine Forces and other assigned the Commandant of the Marine Corps) Marine Corps forces) for manpower, exercise overall authority throughout material, weapons, facilities, and serv- the Department of the Navy in matters ices, including the determination of related to the effectiveness of the sup- quantities, military performance re- port of the Operating Forces of the quirements, and times, places, and pri- Navy, the coordination and direction of orities of need. assigned Navy-wide programs and func- (3) To exercise leadership in main- tions including those assigned by high- taining a high degree of competence er authority, the coordination of ac- among Navy officer and enlisted and ci- tivities of the Department of the Navy vilian personnel in necessary fields of in matters concerning effectiveness, ef- specialization, through education, ficiency, and economy, and matters es- training, and equal opportunities for sential to naval military administra- personal advancement, and maintain- tion, such as security, intelligence, dis- ing the morale and motivation of Navy cipline, communications, and matters
16
VerDate 25
related to the customs and traditions Chief of Naval Material and to related of the naval service. matters. In these areas, the Chief of Naval Material shall inform the Chief § 700.305 Naval Vessel Register, classi- of Naval Operations and, when appro- fication of naval craft, and status of priate, the Commandant of the Marine ships and service craft. Corps in matters of policy and signifi- (a) The Chief of Naval Operations cant actions. shall be responsible for the Naval Ves- (b) Be responsive directly to the sel Register (except the Secretary of Commandant of the Marine Corps in the Navy shall strike vessels from the providing necessary planning and pro- Register) and the assignment of classi- gramming data requirements and in fication for administrative purposes to meeting those particular material sup- water-borne craft and the designation port needs of the U.S. Marine Corps of status for each ship and service which are required to be provided by craft. The classification of water-borne the Naval Material Command. craft and the status of ships and serv- ice craft are found in the glossary. (c) Provide the Commandant of the (b) Commissioned vessels and craft Marine Corps with timely advice con- shall be called ‘‘United States Ship —— cerning training and technical require- ’’ or ‘‘U.S.S. ——’’. ments essential for the operation and (c) Civilian manned ships of the Mili- maintenance by Marine Corps person- tary Sealift Command or other com- nel of new equipment under develop- mands designated ‘‘active status, in ment. service’’ shall be called ‘‘United States (1) Be responsive to the heads of Naval Ship ——’’ or ‘‘U.S.N.S. ——’’. other organizations in meeting their (d) Ships and service craft designated material support needs which are pro- ‘‘active status, in service,’’ except vided by the Naval Material Command. those described by paragraph c of this (2) Provide guidance to Navy and Ma- article, shall be referred to by name, rine Corps Commands, as required, on when assigned, classification, and hull functional areas related to Naval Mate- number (e.g., ‘‘HIGHPOINT PCH–1’’ or rial Command acquisition and logistics ‘‘YOGN–8’’). support responsibilities and other tech- (e) The Chief of Naval Operations nical or professional matters as appro- shall designate hospital ships and med- priate. ical aircraft as he deems necessary. Such designation shall be in compli- § 700.307 The Chief of Naval Personnel ance with the Geneva Convention for and the Chief, Bureau of Medicine the Amelioration of the Conditions of and Surgery. Wounded, Sick and Shipwrecked Mem- The Chief of Naval Personnel, under bers of the Armed Forces at Sea of 12 the command of the Chief of Naval Op- August 1949 and he shall ensure compli- erations, shall command the Bureau of ance with the notice provisions of that Naval Personnel. The Chief, Bureau of Convention. Medicine and Surgery, (who is also the [39 FR 7135, Feb. 25, 1974, as amended at 45 Surgeon General of the Navy), under FR 80278, Dec. 4, 1980] the command of the Chief of Naval Op- erations, shall command the Bureau of § 700.306 The Chief of Naval Material. Medicine and Surgery. In addition to The Chief of Naval Material, under the tasks which may be assigned by the the command of the Chief of Naval Op- Chief of Naval Operations, they shall: erations, shall command the Naval Ma- (a) Be responsive directly to the terial Command. In addition to the Commandant of the Marine Corps in tasks which may be assigned by the meeting those particular needs of the Chief of Naval Operations, he shall: United States Marine Corps which are (a) Provide direct staff assistance to required to be provided by their respec- the Secretary of the Navy and the Ci- tive bureaus. vilian Executive Assistants in matters (b) Be responsive to the heads of pertaining to contracting, procure- other organizations in meeting the par- ment, production and exploratory de- ticular needs of such organizations velopment, laboratories assigned to the which are provided by the Chief of
17
VerDate 25
Naval Personnel and the Chief, Bureau maintenance, support and readiness of of Medicine and Surgery. the Pacific Fleet, including those forces temporarily assigned to the § 700.308 Naval Inspector General. operational command of other com- There is in the Office of the Chief of manders. Naval Operations the Office of the (b) The Commander in Chief U.S. Pa- Naval Inspector General. The Naval In- cific Fleet is a naval component com- spector General, when directed, shall mander of the unified command under inquire into and report upon any mat- the Commander in Chief, Pacific. ter which affects the discipline or mili- (c) The organization of the Pacific tary efficiency of the Department of Fleet, the forces assigned and their em- the Navy; however, the Secretary of ployment shall be as specified by the the Navy shall direct inquiry when Chief of Naval Operations except for such matters are related to the Marine the employment of forces assigned to Corps. He shall make such inspections, the operational command of unified investigations, and reports as the Sec- and specified commanders. retary of the Chief of Naval Operations directs. The Naval Inspector General § 700.311 Commander in Chief; U.S. shall periodically propose programs of Naval Forces, Europe. inspections to the Chief of Naval Oper- (a) The Commander in Chief U.S. ations and shall recommend additional Naval Forces, Europe is a naval com- inspections or investigations as may mander in chief of the Operating appear appropriate. Forces of the Navy under the command § 700.309 Commander in Chief; U.S. At- of the Chief of Naval Operations. He lantic Fleet. shall represent the Chief of Naval Oper- ations for U.S. naval matters in the (a) The Commander in Chief of U.S. general areas of Europe, North Africa, Atlantic Fleet is a naval commander in chief of the Operating Forces of the and the Middle East. He shall command Navy under the command of the Chief those forces assigned by the Chief of of Naval Operations. He shall command Naval Operations or by other naval the U.S. Atlantic Fleet and is respon- commanders. sible for the administration, training, (b) The Commander in Chief U.S. maintenance, support and readiness of Naval Forces, Europe is the naval com- the Atlantic Fleet including those ponent commander of the unified com- forces temporarily assigned to the mand under the Commander in Chief, operational command of other com- U.S. European Command. manders. (b) The Commander in Chief U.S. At- § 700.312 Commander, Military Sealift Command. lantic Fleet is a naval component com- mander of the unified command under (a) The Commander, Military Sealift the Commander in Chief, Atlantic. Command is a naval commander of the (c) The organization of the Atlantic Operating Forces of the Navy under the Fleet, the forces assigned and their em- command of the Chief of Naval Oper- ployment shall be as specified by the ations. He shall provide ocean trans- Chief of Naval Operations except for portation for personnel and cargo of the employment of forces assigned to the Department of Defense (excluding the operational command of unified that transported by units of the fleet) and specified commanders. in accordance with policies and proce- dures of the Single Manager for Ocean § 700.310 Commander in Chief, U.S. Pa- Transportation (Secretary of the Navy) cific Fleet. and the Secretary of Defense. He shall (a) The Commander in Chief U.S. Pa- also operate ships in support of sci- cific Fleet is a naval commander in entific projects and other programs for chief of the Operating Forces of the agencies or departments of the United Navy under the command of the Chief States. of Naval Operations. He shall command (b) The Military Sealift Command the U.S. Pacific Fleet and is respon- shall operate and maintain government sible for the administration, training, owned ships and augment operational
18
VerDate 25
capability by shipping cargo and pas- § 700.317 Commander, Naval Security sengers on commercially operated Group Command. ships, chartering ships, and exercising The Commander, Naval Security operational control over ships acti- Group Command, under the command vated from National Defense Reserve of the Chief of Naval Operations, shall Fleet to meet emergency needs. be responsible for the provision, oper- ation, and maintenance of an adequate § 700.313 Commander, Naval Intel- ligence Command. Naval Security Group and shall per- form cryptologic and related functions. The Commander, Naval Intelligence Command, under the command of the § 700.318 Chief of Naval Education and Chief of Naval Operations, shall be re- Training. sponsible for directing and managing The Chief of Naval Education and the activities of the Naval Intelligence Training, under the command of the Command to insure fulfillment of the Chief of Naval Operations, shall be re- intelligence, counterintelligence, in- sponsible for the training of Navy per- vestigative, and security requirements sonnel, other than training assigned by of the Department of the Navy. the Chief of Naval Operations to other authorities, and for the training of Ma- § 700.314 Commander, Naval Tele- communications Command. rine Corps aviation personnel. The Commander, Naval Tele- [41 FR 18074, Apr. 30, 1976] communications Command, under the command of the Chief of Naval Oper- § 700.319 Chief of Naval Reserve. ations, shall exercise overall respon- The Chief of Naval Reserve, under sibility throughout the Department of the command of the Chief of Naval Op- the Navy for the coordination of the erations, shall be responsible for the provision, operation, and maintenance administration of Naval Reserve pro- of adequate and secure naval commu- grams, the management of Naval Re- nications. serve resources, and for logistic sup- port of the Marine Corps air program. [41 FR 18074, Apr. 30, 1976] § 700.320 Commandants of Naval Dis- § 700.315 Oceanographer of the Navy. tricts. The Oceanographer of the Navy, (a) The Commandants of Naval Dis- within the Office of the Chief of Naval tricts, under the command of the Chief Operations, performs functions relating of Naval Operations shall represent the to external interfaces with national Secretary of the Navy and the Chief of and international oceanographic orga- Naval Operations in such matters as nizations and bodies. may be assigned; to exercise area co- [39 FR 7135, Feb. 25, 1974, as amended at 45 ordination authority and supervise and FR 80278, Dec. 4, 1980] direct the effective execution of as- signed area coordination responsibil- § 700.316 Commander, Naval Oceanog- ities over all naval shore activities and raphy Command. personnel in the Naval Service in the The Commander, Naval Oceanog- naval district; to exercise command of raphy Command, under the command assigned naval shore activities; to co- of the Chief of Naval Operations, shall ordinate fleet support matters as as- be responsible for the management of signed by Fleet Commanders in Chief; assigned oceanographic, mapping, and to coordinate public affairs mat- charting, geodetic and meteorological ters throughout the naval district and activities and efforts and shall provide to perform such other functions as may technical guidance in such matters be directed by the Chief of Naval Oper- throughout the Department of the ations. Navy. [41 FR 18074, Apr. 30, 1976, and 45 FR 80278, [45 FR 80278, Dec. 4, 1980] Dec. 4, 1980]
19
VerDate 25
§ 700.321 President, Board of Inspec- his absence, disability, or in the event tion and Survey. of a temporary vacancy in that office. The President of the Board of Inspec- tion and Survey, assisted by such other § 700.403 Authority and responsibil- officers and such permanent and ities. semipermanent sub-boards as may be (a) The Commandant of the Marine designated by the Secretary of the Corps, under the direction of the Sec- Navy, shall: retary of the Navy, shall command the (a) Conduct acceptance trials and in- United States Marine Corps, which spections of all ships and service craft shall include Headquarters, United prior to acceptance for naval service. States Marine Corps; the Operating (b) Conduct acceptance trials and in- Forces of the Marine Corps; Marine spections on one or more aircraft of Corps Supporting Establishments and each type or model prior to final ac- the Marine Corps Reserve. ceptance for naval service. (b) The Commandant of the Marine (c) Examine at least once every three Corps advises the Secretary of the years, if practicable, each naval ship to Navy on matters pertaining to the Ma- determine its material condition and, rine Corps. He is directly responsible to if found unfit for continued service, re- port to higher authority. the Secretary for the administration, (d) Perform such other inspections discipline, internal organization, train- and trials of naval ships, service craft, ing, requirements, efficiency, and read- and aircraft as may be directed by the iness of the Marine Corps; for the oper- Chief of Naval Operations. ation of the Marine Corps material sup- port system; and the total performance Subpart D—The Commandant of of the Marine Corps. He shall command the Marine Corps such shore activities as may be as- signed by the Secretary, and is respon- § 700.401 Senior officer of the Marine sible to the Secretary for the utiliza- Corps. tion of resources by and the operating (a) The Commandant of the Marine efficiency of all activities under his Corps is the senior officer of the United command. When performing these States Marine Corps. functions, the Commandant is not a (b) The Commandant of the Marine part of the command structure of the Corps is the Marine Corps member of Chief of Naval Operations. There must, the Joint Chiefs of Staff and is respon- however, be a close cooperative rela- sible, in coordination with the Chief of tionship between the Chief of Naval Op- Naval Operations, for keeping the Sec- erations, as the senior military officer retary of the Navy fully informed on of the Department of the Navy, and the matters considered or acted upon by Commandant, as the one having com- the Joint Chiefs of Staff. In this capac- mand responsibility over the Marine ity, he is responsible, under the Presi- Corps. dent and the Secretary of Defense, for (c) The Commandant of the Marine duties external to the Department of Corps is directly responsible to the the Navy, as prescribed by law. Chief of Naval Operations for the orga- [39 FR 7135, Feb. 25, 1974, as amended at 45 nization, training, and readiness of FR 80278, Dec. 4, 1980] those elements of the Operating Forces of the Marine Corps assigned to the Op- § 700.402 Succession to duties. erating Forces of the Navy. Such Ma- The Assistant Commandant of the rine Corps forces, when so assigned, are Marine Corps, and then the officers of subject to the command exercised by the Marine Corps, not restricted in the the Chief of Naval Operations over the performance of duty, on duty at the Operating Forces of the Navy. Like- headquarters of the Marine Corps in wise, members or organizations of the the order of their seniority, shall, un- Navy, when assigned to the Marine less otherwise directed by the Presi- Corps, are subject to the command of dent, perform the duties of the Com- mandant of the Marine Corps during the Commandant of the Marine Corps.
20
VerDate 25
§ 700.404 Specific responsibilities. tion, review, and appraisal of the over- all USMC RDT&E Program. In addition, the Commandant of the (g) To plan for and determine the Marine Corps has the following specific needs for health care for personnel of responsibilities: the Marine Corps and their dependents. (a) To plan for and determine the support needs of the Marine Corps for § 700.405 Composition of the Marine equipment, weapons or weapons sys- Corps. tems, materials, supplies, facilities, (a) The major components of the reg- maintenance, and supporting services. ular establishment of the Marine Corps This responsibility includes the deter- consist principally of the Headquarters mination of Marine Corps characteris- of the Marine Corps, the Operating tics of equipment and material to be Forces, and the Supporting Establish- procured or developed, and the training ment. In addition, there is another ele- required to prepare Marine Corps per- ment of the Marine Corps, the Marine sonnel for combat. It also includes the Corps Reserve. operation of the Marine Corps Material (b) The Operating Forces of the Ma- Support System. rine Corps include the Fleet Marine (b) To budget for the Marine Corps, Forces, detachments afloat, and secu- except as may be otherwise directed by rity forces. There are two Fleet Marine the Secretary of the Navy. Forces: Fleet Marine Force, Atlantic, (c) To develop, in coordination with and Fleet Marine Force, Pacific. These other military services, the doctrines, Fleet Marine Forces are assigned to, tactics, and equipment employed by and are integral to, the U.S. fleets as landing forces in amphibious oper- part of the Operating Forces of the ations. Navy. (d) To formulate Marine Corps strate- (c) The Supporting Establishment in- gic plans and policies and participate cludes those Marine Corps facilities, in the formulation of joint and com- such as Marine Corps schools, recruit bined strategic plans and policies and depots, supply installations, bases, bar- related command relationships. racks, air stations and other mis- (e) To plan for and determine the cellaneous small activities which train, present and future needs, both quan- maintain, and support the Operating titative and qualitative, for personnel, Forces of the Marine Corps. including reserve personnel and civil- (d) The Marine Corps Reserve has as ian personnel, of the United States Ma- its mission to provide a trained force of rine Corps. This includes responsibility qualified officers and enlisted person- for leadership in maintaining a high nel to be available for active duty in degree of competence among Marine the U.S. Marine Corps in time of war or Corps officers and enlisted personnel national emergency. and Marine Corps civilian personnel in necessary fields of specialization § 700.406 Relationships between the through education, training, and equal Commandant of the Marine Corps opportunities for personal advance- and the Chief of Naval Material. ment; and for leadership in maintain- Formal operating relationships with ing the morale and motivation of Ma- respect to the efforts of determining rine Corps personnel and the prestige needs and providing support between of a career in the Marine Corps. the Commandant of the Marine Corps (f) To plan for and determine devel- and his organization and the Chief of opment requirements of the Marine Naval Material and his organization Corps. To provide for the development, shall be governed by the following prin- test, and evaluation of new weapon sys- ciples: tems and equipment, to ensure that (a) The Commandant of the Marine such are adequate and responsive to Corps shall express to the Chief of immediate and long-range objectives Naval Material those Marine Corps ma- and are within available resources. To terial needs which are to be provided provide direct staff assistance to the by the Naval Material Command. With Assistant Secretary of the Navy (Re- respect to the development of material search and Development) in the direc- items, the Commandant of the Marine
21
VerDate 25
Corps shall specify the military per- and supplies needed for the support of formance required to meet Marine the Marine Corps forces so detached. Corps needs. He shall be responsible to the Sec- (b) The Chief of Naval Material shall retary of the Army for the general effi- advise the Commandant of the Marine ciency and discipline of such units of Corps as to the economic and techno- the Marine Corps as are detached for logical feasibility of meeting such service with the Army. needs, and shall keep the Commandant (b) Official correspondence which re- informed of new capabilities to meet lates exclusively to the routine busi- the needs of the Marine Corps which ness of the Marine Corps and does not may or may not have been previously involve questions of administrative re- expressed. With respect to the develop- sponsibility under the supervision of ment of material items, the Chief of Naval Material shall determine the the commanding officer of the com- technical effort necessary to satisfy bined forces, and which is not a matter the needs of the Marine Corps. of a military nature pertaining to an (c) The Commandant of the Marine individual requiring the action of said Corps shall select the work to be done commanding officer, shall be forwarded to satisfy the needs of the Marine direct between the Headquarters of the Corps, based upon feasibility data and Marine Corps and the senior Marine of- current estimates of the worth of a ficer serving with the detached forces. particular need in relation to other de- (c) All official correspondence regard- sirable needs, including, where nec- ing the personnel of the Marine Corps essary, the curtailment or cancellation units on duty with the Army shall be of work already in progress in favor of addressed to the proper representative work which offers greater promise or of the Marine Corps and forwarded via greater military worth. the Adjutant General of the Army. (d) The Chief of Naval Material shall exercise appropriate supervision over accomplishment of the work selected, Subpart E—The United States and shall insure that resources avail- Coast Guard (When Operat- able to him are efficiently utilized in ing As a Service of the Navy) meeting Marine Corps needs. (e) Work being accomplished shall be § 700.501 Relationship and operation reviewed concurrently by the Com- as a service in the Navy. mandant of the Marine Corps from the (a) Upon declaration of war or when viewpoint of readiness and military the President directs, the Coast Guard worth, and by the Chief of Naval Mate- shall operate as a service in the Navy, rial from the viewpoint of progress and and shall be subject to the orders of the the efficient utilization of resources Secretary of the Navy. While so operat- available to him. ing as a service in the Navy and to the extent practicable Coast Guard oper- § 700.407 Serving with the Army by order of the President. ations shall be integrated and uniform with Navy operations. (a) When Marine Corps units are, by (b) Whenever the Coast Guard oper- order of the President, detached for ates as a service in the Navy: service with the Army, the Com- mandant of the Marine Corps is, for the (1) Applicable appropriations of the time that the Marine Corps units are Coast Guard to cover expenses shall be thus detached and for the purposes of available for transfer to the Depart- administering the affairs of such units, ment of the Navy and supplemented, as responsible to the Secretary of the required, from applicable appropria- Army. The Commandant of the Marine tions of the Department of the Navy. Corps shall retain such control and ju- (2) Personnel of the Coast Guard risdiction over said detached forces as shall be eligible to receive gratuities, will enable him to make the necessary medals, and other insignia of honor on transfers of officers and men from and the same basis as personnel in the to the commands, and to exercise gen- naval service or serving in any capac- eral supervision over all expenditures ity with the Navy.
22
VerDate 25
§ 700.502 Commandant of the Coast itime navigation, ice breaking facili- Guard. ties, and rescue facilities for the pro- (a) The Commandant of the Coast motion of safety on and over the high Guard is the senior officer of the seas and waters subject to the jurisdic- United States Coast Guard. tion of the United States. (b) When reporting in accordance (i) Engage in oceanographic research with section 3, title 14 U.S.C., to the on the high seas and in waters subject Secretary of the Navy, the Com- to the jurisdiction of the United States mandant of the Coast Guard will fur- in coordination with the Office of the ther report to the Chief of Naval Oper- Oceanographer of the Navy. ations for military functions. The Chief (j) Continue in effect under the Sec- of Naval Operations shall represent the retary of the Navy those other func- Coast Guard as a member of the Joint tions, powers and duties vested in him Chiefs of Staff. by appropriate orders and regulations of the Secretary of Transportation on § 700.503 Duties and responsibilities. the day prior to the effective date of In exercising command over the transfer of the Coast Guard to the De- Coast Guard while operating as a serv- partment of the Navy until specifically ice of the Navy, the Commandant shall: modified or terminated by the Sec- (a) Organize, train, prepare and main- retary of the Navy. tain the readiness of the Coast Guard to function as a specialized service in Subpart F—Commanders in Chief the Navy for the performance of mili- and Other Commanders tary missions, as directed. (b) Plan for and determine the § 700.601 Titles of commanders. present and future needs of the Coast (a) The commander of a principal or- Guard, both quantitative and quali- ganization of the Operating Forces of tative, for personnel, including reserve the Navy, as determined by the Chief of personnel. Naval Operations, or the officer who (c) Budget for the Coast Guard, ex- has succeeded to such command as pro- cept as may be otherwise directed by vided elsewhere in these regulations, the Secretary of the Navy. shall have the title ‘‘Commander in (d) Plan for and determine the sup- Chief.’’ The name of the organization port needs of the Coast Guard for under his command shall be added to equipment, materials, weapons or form his official title. weapons systems, supplies, facilities, (b) The commander of each other or- maintenance, and supporting services. ganization of units of the Operating (e) Exercise essential military ad- Forces of the Navy, or organization of ministration of the Coast Guard. This units of shore activities, shall have the includes, but is not limited to, such title ‘‘Commander,’’ ‘‘Commandant,’’ matters as security, discipline, intel- ‘‘Commanding General,’’ or other ap- ligence, communications, personnel propriate title. The name of the organi- records and accounting conforming, as zation under his command shall be practicable, to Navy procedures. added to form his official title. (f) Enforce or assist in enforcing Fed- eral laws on the high seas and on wa- § 700.602 Responsibility and authority ters subject to the jurisdiction of the of a commander. United States. (a) A commander shall be responsible (g) Administer, promulgate and en- for the satisfactory accomplishment of force regulations for the promotion of the mission and duties assigned to his safety of life and property on the high command. His authority shall be com- seas and on waters subject to the juris- mensurate with his responsibilities. diction of the United States. This ap- Normally, he shall exercise authority plies to those matters not specifically through his immediate subordinate delegated by law to some other execu- commanders; but he may communicate tive department. directly with any of his subordinates. (h) Develop, establish, maintain and (b) A commander shall insure that operate, with due regard to the require- subordinate commands are fully aware ments of national defense, aids to mar- of the importance of strong, dynamic
23
VerDate 25
leadership and its relationship to the (e) Make, or cause to be made, such overall efficiency and readiness of inspections as necessary to ensure the naval forces. A commander shall exer- readiness, effectiveness, and efficiency cise positive leadership and actively of the components of his command. develop the highest qualities of leader- ship in persons with positions of au- § 700.605 Observance of international thority and responsibility throughout law. his command. At all times a commander shall ob- (c) Subject to orders of higher au- serve, and require his command to ob- thority, a commander shall issue such serve, the principles of international regulations and instructions as may be law. Where necessary to fulfillment of necessary for the proper administra- this responsibility, a departure from tion and operation of his command. other provisions of Navy Regulations is (d) A commander shall hold the same authorized. relationship to his flagship, or to a shore activity of his command in which Subpart G—The Commanding his headquarters may be located, in re- Officer gard to its internal administration and discipline, as to any other ship or shore § 700.701 Applicability. activity of his command. In addition to commanding officers, the provisions of this chapter shall § 700.603 To announce assumption of apply, where pertinent, to aircraft command. commanders, officers in charge (includ- Upon assuming command, a com- ing warrant officers and petty officers mander shall so advise appropriate su- when so detailed) and those persons periors, and the units of his command. standing the command duty. When appropriate to his command he shall also advise the senior command- § 700.702 Responsibility. ers of other United States armed serv- (a) The responsibility of the com- ices and officials of other Federal agen- manding officer for his command is ab- cies and foreign governments located solute, except when, and to the extent, within the area encompassed by his relieved therefrom by competent au- command, concerning his assumption thority, or as provided otherwise in of command. these regulations. The authority of the commanding officer is commensurate § 700.604 Readiness. with his responsibility. While he may, A commander shall take all prac- at his discretion, and when not con- ticable steps to maintain his command trary to law or regulations, delegate in a state of readiness to perform its authority to his subordinates for the mission. In conformity with the orders execution of details, such delegation of and policies of higher authority, he authority shall in no way relieve the shall: commanding officer of his continued (a) Organize the forces and resources responsibility for the safety, well- under his command and assign duties being, and efficiency of his entire com- to his principal subordinate command- mand. ers. (b) A commanding officer who de- (b) Prepare plans for the employment parts from his orders or instructions, of his forces to meet existing and fore- or takes official action which is not in seeable situations. accordance with such orders or instruc- (c) Collaborate with the commanders tions, does so upon his own responsibil- of other United States armed services ity and shall report immediately the and with appropriate officials of other circumstances to the officer from Federal agencies and foreign govern- whom the prior orders or instructions ments located within the area encom- were received. passed by his command. (c) The commanding officer shall be (d) Maintain effective intelligence responsible for economy within his and keep himself informed of the polit- command. To this end he shall require ical and military aspects of the na- from his subordinates a rigid compli- tional and international situation. ance with the regulations governing
24
VerDate 25
the receipt, accounting, and expendi- ship or aircraft of the naval service are ture of public money and materials, subject to the authority of the com- and the implementation of improved manding officer and shall conform to management techniques and proce- the internal regulations and routine of dures. the ship or aircraft. The commanding (d) The commanding officer and his officer of such ship or aircraft shall subordinates shall exercise leadership take no disciplinary action against a through personal example, moral re- passenger not in the naval service, sponsibility, and judicious attention to other than that authorized by law; but the welfare of persons under their con- he may, when he deems such action to trol or supervision. Such leadership be necessary for the safety of the ship shall be exercised in order to achieve a or aircraft or of any persons embarked, positive, dominant influence on the subject a passenger not in the naval performance of persons in the Depart- ment of the Navy. service to such restraint as the cir- cumstances require until such time as § 700.703 [Reserved] delivery to the proper authorities is possible. A report of the matter shall § 700.704 Organization of commands. be made to an appropriate superior of All commands and other activities of the passenger. the Department of the Navy shall be organized and administered in accord- § 700.712 [Reserved] ance with law, the Navy Regulations, and the orders of competent authority, § 700.713 Person found under incrimi- and all orders and instructions of the nating circumstances. commanding officer shall be in accord- (a) The commanding officer shall ance therewith. keep under restraint or surveillance, as necessary, any person not in the armed §§ 700.705–700.708 [Reserved] services of the United States who is found under incriminating or irregular § 700.709 Unauthorized persons on board. circumstances within the command, and shall immediately initiate an in- The commanding officer shall satisfy vestigation. himself that there is no unauthorized (b) Should an investigation indicate person on board before proceeding to sea or commencing a flight. that such person is not a fugitive from justice or has not committed or at- § 700.710 Control of passengers. tempted to commit an offense, he shall (a) Control of passage in and pro- be released at the earliest opportunity, tracted visits to aircraft and ships of except: the Navy by all persons, within or (1) If not a citizen of the United without the Department of the Navy, States, and the place of release is shall be exercised by the Chief of Naval under the jurisdiction of the United Operations. States, the nearest federal immigra- (b) Nothing in this article shall be in- tion authorities shall be notified as to terpreted as prohibiting the senior offi- the time and place of release suffi- cer present from authorizing the pas- ciently in advance to permit them to sage in ships and aircraft of the Navy take such steps as they deem appro- by such persons as he judges necessary priate. in the public interest or in the interest (2) Such persons shall not be released of humanity. The senior officer present in territory not under the jurisdiction shall report the circumstances to the of the United States without first ob- Chief of Naval Operations when he taining the consent of the proper for- gives such authorization. eign authorities, except where the in- vestigation shows that he entered the § 700.711 Authority over passengers. command from territory of the foreign Except as otherwise provided in these state, or that he is a citizen or subject regulations or in orders from com- of that state. petent authority, all passengers in a
25
VerDate 25
(c) If the investigation indicates that wise, or are insufficiently, available to such person has committed or at- the personnel of the command. tempted to commit an offense punish- (b) Personal commercial solicitation able under the authority of the com- and the conduct of commercial trans- manding officer, the latter shall take actions are governed by policies of De- such action as he deems necessary. partment of Defense. (d) If the investigation indicates that such a person is a fugitive from justice, § 700.716 Marriages on board. or has committed or attempted to com- mit an offense which requires actions The commanding officer shall not beyond the authority of the command- perform a marriage ceremony on board ing officer, he shall, at the first oppor- his ship or aircraft. He shall not permit tunity, deliver such person, with full a marriage ceremony to be performed descriptive data, fingerprints, and a on board when the ship or aircraft is statement of the circumstances to the outside the territory of the United proper civil authorities. States, except: (e) A report shall be made promptly (a) In accordance with local laws and to the Secretary of the Navy, in all the laws of the state, territory, or dis- cases under paragraph 4 of this article, trict in which the parties are domi- and in other cases where appropriate. ciled, and [39 FR 7135, Feb. 25, 1974, as amended at 41 (b) In the presence of a diplomatic or FR 21775, May 28, 1976] consular official of the United States, who has consented to issue the certifi- § 700.714 Rules for visits. cates and make the returns required by (a) Commanding officers are respon- the consular regulations. sible for the control of visitors to their commands and shall comply with the § 700.717 Postal matters. relevant provisions of the Department Commanding officers shall ensure of the Navy Security Manual for Clas- that mail and postal funds are adminis- sified Information and other pertinent tered in accordance with instructions directives. issued by the Postmaster General and (b) Commanding officers shall take approved for the naval service by the such measures and impose restrictions Chief of Naval Operations, and instruc- on visitors as necessary to safeguard tions issued by the Chief of Naval Oper- the classified material under their ju- ations or the Chief of Naval Personnel risdiction. Arrangements for general or the Commandant of the Marine visiting shall always be based on the Corps as appropriate; and that postal assumption that foreign agents will be clerks or other persons authorized to among the visitors. handle mail perform their duties (c) Commanding officers and others strictly in accordance with those in- officially concerned shall exercise rea- structions. sonable care to safeguard the persons and property of visitors to naval activi- §§ 700.718–700.719 [Reserved] ties as well as taking those necessary precautions to safeguard the persons § 700.720 Deaths. and property within his command. The commanding officer, in the event § 700.715 Dealers, tradesmen, and of death of any person within his com- agents. mand, shall ensure that the cause of (a) In general, dealers or tradesmen death and the circumstances under or their agents shall not be admitted which death occurred are established, within a command, except as author- and the appropriate casualty report is ized by the commanding officer: submitted. (1) To conduct public business. (2) To transact specific private busi- § 700.721 The American National Red ness with individuals at the request of Cross. the latter. (a) Pursuant to the request of the (3) To furnish services and supplies Secretary of the Navy and subject to which are necessary and are not other- such instructions as he may issue, the
26
VerDate 25
American National Red Cross is au- bell book shall each constitute an offi- thorized to conduct a program of wel- cial record of the command. fare, including social, financial, and [41 FR 18074, Apr. 30, 1976] medical and dental aid, for naval per- sonnel; to assist in matters pertaining § 700.726 Records. to prisoners of war; and to provide such The commanding officer shall require other services as are appropriate func- that records relative to personnel, ma- tions for the Red Cross. The American terial, and operations as required by National Red Cross is the only volun- current instructions are maintained teer society authorized by the Govern- properly by those responsible therefor. ment to render medical and dental aid to the armed forces of the United §§ 700.727–700.728 [Reserved] States. Other organizations desiring to render medical and dental aid may do § 700.729 Delivery of personnel to civil so only through the Red Cross. authorities and service of subpoena or other process. (b) Requests for Red Cross services shall be made to the Chief of Naval (a) Commanding officers or other per- Personnel or the Commandant of the sons in authority shall not deliver any Marine Corps or, in the case of medical person in the naval service to civil au- services, to the Chief, Bureau of Medi- thorities except as provided by the cine and Surgery. Manual of the Judge Advocate General. (c) Activities and personnel of the (b) Commanding officers are author- American National Red Cross in areas ized to permit the service of subpoena on other process as provided by the subject to naval jurisdiction shall con- Manual of the Judge Advocate General. form to such administrative regula- tions as may be prescribed by appro- §§ 700.730–700.732 [Reserved] priate naval authority. (d) Red Cross personnel shall be con- § 700.733 Responsibility of a master of sidered to have the status of commis- an in-service ship of the Military sioned officers, subject to such restric- Sealift Command. tions as may be imposed by the Chief of In an in-service ship of the Military Naval Personnel or the Commandant of Sealift Command, the master is re- the Marine Corps. sponsible for the safety of his ship and all persons on board. He is responsible §§ 700.722–700.723 [Reserved] for the safe navigation and technical operation of his ship and has para- § 700.724 Maintenance of Logs. mount authority over all persons on (a) A deck log and an engineering log board. The master is responsible for shall be maintained by each ship in the preparation of the abandoned ship commission, and by such other ships bill and has exclusive authority to and craft as may be designated by the order the ship abandoned. He has full Chief of Naval Operations. authority to enforce appropriate laws (b) A compass record shall be main- of the United States and all applicable tained as an adjunct to the deck log. orders and regulations of the Navy, An engineer’s bell book shall be main- Military Sealift Command, and the Of- tained as an adjunct to the engineering fice of Personnel Management. log. [39 FR 7135, Feb. 25, 1974, as amended at 47 (c) The Chief of Naval Operations FR 28370, June 30, 1982] shall prescribe regulations governing the contents and preparation of the § 700.734 Relations with merchant sea- deck and engineering logs and adjunct men. records. When in foreign waters, the com- manding officer, with the approval of [41 FR 18074, Apr. 30, 1976] the senior officer present, may receive on board as supernumeraries for ra- § 700.725 Status of Logs. tions and passage: The deck log, the engineering log, (a) Distressed seamen of the United the compass record, and the engineer’s States for passage to the United
27
VerDate 25
States, provided they bind themselves be removed from the command by such to be amenable in all respects to Navy person, so long as he has the capacity Regulations. to repel such act. If force should be ex- (b) As prisoners, seamen from mer- erted to compel submission, he is to re- chant vessels of the United States, pro- sist that force to the utmost of his vided that the witnesses necessary to power. substantiate the charges against them (b) Except as may be provided by are received, or adequate means adopt- international agreement, the com- ed to ensure the presence of such wit- manding officer of a shore activity nesses on arrival of the prisoners at the shall not permit his command to be place where they are to be delivered to searched by any person representing a the civil authorities. foreign state, nor permit any of the personnel within the confines of his § 700.735 [Reserved] command to be removed from the com- mand by such person, so long as he has § 700.736 Physical security. the power to resist. (a) The commanding officer shall take action to protect and maintain §§ 700.741–700.746 [Reserved] the security of the command from the dangers of attack, sabotage or other § 700.747 Status of boats. actions of subversive or militant (a) Boats shall be regarded in all groups or of any person with intent to matters concerning the rights, privi- do harm. leges, and comity of nations as part of (b) The commanding officer shall the ship or aircraft to which they be- take action to protect and maintain long. the security of the command against (b) In ports where war, insurrection dangers from fire, windstorms, or other or armed conflict exists or threatens, acts of nature. the commanding officer shall: (1) Require that boats away from the § 700.737 Effectiveness for service. ship or aircraft have some appropriate The commanding officer shall: and competent person in charge. (a) Exert every effort to maintain his (2) See that steps are taken to make command in a state of maximum effec- their nationality evident at all times. tiveness for war or other service con- sistent with the degree of readiness as § 700.748 [Reserved] may be prescribed by proper authority. Effectiveness for service is directly re- § 700.749 Work, facilities, supplies, or lated to state of personnel and mate- services for other Government de- rial readiness. partments, State or local govern- ments, foreign governments, private (b) Make himself aware of the parties and morale, welfare, and progress of any repairs, the status of recreational activities. spares, repair parts and other compo- nents, personnel readiness and other (a) Work may be done for or facili- factors or conditions that could lessen ties, supplies, or services furnished to the effectiveness of his command. departments and agencies of the Fed- When the effectiveness is lessened ap- eral and State governments, local gov- preciably it shall be reported to appro- ernments, foreign governments, private priate superiors. parties, and morale, welfare, and rec- reational activities with the approval §§ 700.738–700.739 [Reserved] of a commanding officer provided: (1) The cost does not exceed limita- § 700.740 Search by foreign authori- tions the Secretary of the Navy may ties. approve or specify; and, (a) The commanding officer shall not (2) In the case of private parties, it is permit a ship under his command to be in the interest of the government to do searched on any pretense whatsoever so and there is no issue of competition by any person representing a foreign with private industry; and, state, nor permit any of the personnel (3) In the case of foreign governments within the confines of his command to a disqualification of a government has
28
VerDate 25
not been issued for the benefits of this eign government concerned where such article. services are provided by persons of the (b) Work shall not be started nor fa- naval service without direct cost to the cilities, supplies, or services furnished, Department of the Navy. morale, welfare, and recreational ac- (f) In cases of emergency involving tivities not classified as instrumental- possible loss of life or valuable prop- ities of the United States, or state or erty, work may be started or facilities local governments or private parties furnished prior to authorization, or until funds to cover the estimated cost provision for payment, but in all such have been deposited with the com- cases a detailed report of the facts and manding officer or unless otherwise circumstances shall be made promptly provided by law. to the Secretary of the Navy or the ap- (c) Work shall not be started nor fa- propriate authority. cilities, supplies, or services furnished (g) Charges and accounting for any other Federal Government depart- work, supplies, or services shall be as ments and agencies, or expenses prescribed in the Navy Comptroller charged to non-appropriated funds of Manual. morale, welfare, and recreational ac- tivities classified as instrumentalities §§ 700.750–700.751 [Reserved] of the United States until reimbursable § 700.752 Responsibility for safety of funding arrangements have been made. ships and craft at a naval station or (d) Work, facilities, supplies, or serv- shipyard. ices furnished non-appropriated fund (a) The commanding officer of a activities classified as instrumental- naval station or shipyard shall be re- ities of the United States in the Navy sponsible for the care and safety of all Comptroller Manual shall be funded in ships and craft at such station or ship- accordance with regulations of the yard not under a commanding officer Comptroller of the Navy. or assigned to another authority, and (e) Supplies or services may be fur- for any damage that may be done by or nished to naval vessels and military to them. In addition, the commanding aircraft of friendly foreign govern- officer of a naval station or shipyard ments (unless otherwise provided by shall be responsible for the safe execu- law or international treaty or agree- tion of work performed by that activ- ment): ity upon any ship located at the activ- (1) On a reimbursable basis without ity. an advancement of funds, when in the (b) It shall be the responsibility of best interest of the United States; the commanding officer of a ship in (i) Routine port services (including commission which is undergoing over- pilotage, tugs, garbage removal, haul, or which is otherwise immo- linehandling, and utilities) in terri- bilized at a naval station or shipyard, torial waters or waters under United to request such services as are nec- States control, essary to ensure the safety of the ship. (ii) Routine airport services (includ- The commanding officer of the naval ing air traffic control, parking, servic- station or shipyard shall be responsible ing, use of runways), for providing requested services in a (iii) Miscellaneous supplies (includ- timely and adequate manner. ing fuel, provisions, spare parts, and (c) When a ship or craft not under her general stores) but not ammunition. own power is being moved by direction Supplies are subject to approval of the of the commanding officer of a naval cognizant fleet or force commanders station or shipyard, that officer shall when provided overseas, be responsible for any damage that (iv) With approval of Chief of Naval may result therefrom; the pilot or Operations in each instance, overhauls, other person designated for the purpose repairs, and alterations together with shall be in direct charge of such move- necessary equipment and its installa- ment, and all persons on board shall tion required in connection therewith, cooperate with and assist the pilot as to vessels and military aircraft. necessary. Responsibility for such ac- (2) Routine port and airport services tions in a private shipyard will be as- may be furnished at no cost to the for- signed by contract to the contractor.
29
VerDate 25
(d) When a ship operating under her the docking activity. The commanding own power is being drydocked, the officer of the docking activity shall be commanding officer shall be fully re- responsible for the closing, at the end sponsible for the safety of his ship of working hours, of all valves and until the extremity of the ship first to other openings in the ship’s bottom enter the drydock reaches the dock sill upon which work is being undertaken and the ship is pointed fair for entering by the docking activity, when such the drydock. The docking officer shall closing is practicable. then take charge and complete the (b) Prior to undocking, the com- docking, remaining in charge until the manding officer of a ship shall report ship has been properly landed, bilge to the docking officer any material blocks hauled, and the dock pumped changes in the amount and location of down. In undocking, the docking offi- weights on board which have been cer shall assume charge when flooding made by the ship’s force while in dock, the dock preparatory to undocking is and shall ensure, and so report, that all started, and shall remain in charge sea valves and other openings in the until the extremity of the ship last to ship’s bottom are properly closed. The leave the dock clears the sill, and the level of water in the dock shall not be ship is pointed fair for leaving the dry- permitted to rise above the keel blocks dock, when the ship’s commanding offi- prior to receipt of this report. The cer shall assume responsibility for the above valves and openings shall be safety and control of the ship. tended during flooding of the dock. (e) When a naval ship is to be (c) When a ship or craft, not in com- drydocked in a private shipyard under mission, is in a naval drydock, the pro- a contract being administered by a su- visions of this article shall apply, ex- pervisor of shipbuilding, the respon- cept that the commanding officer of sibilities of the commanding officer are the docking activity or his representa- the same as in the case of drydocking tive shall act in the capacity of the in a naval shipyard. The responsibil- commanding officer. ities for the safety of the actual (d) When a naval ship or craft is in drydocking, normally assigned to the drydock in a private shipyard, respon- commanding officer of a naval shipyard sibility for actions normally assigned through his docking officer, will be as- by the commanding officer of the dock- signed by contract to the contractor. ing activity will be assigned by con- The supervisor of shipbuilding is re- tract to the contractor. sponsible, however, for ensuring that the contractor’s facilities, methods, op- [39 FR 7135, Feb. 25, 1974, as amended at 45 FR 80279, Dec. 4, 1980] erations, and qualifications meet the standards of efficiency and safety pre- § 700.754 Pilotage. scribed by Navy directives. (a) The commanding officer shall: (f) If the ship is elsewhere than at a (1) Pilot the ship under all ordinary naval station or shipyard, the relation- circumstances, but he may employ pi- ship between the Commanding officer lots whenever in his judgment such em- and the supervisor of shipbuilding, or ployment is prudent. other appropriate official, shall be the (2) Not call a pilot on board until the same as that between the commanding ship is ready to proceed. officer and the commanding officer of a (3) Not retain a pilot on board after naval station or shipyard as specified the ship has reached her destination or in this article. point where pilot is no longer required. [39 FR 7135, Feb. 25, 1974, as amended at 45 (4) Give preference to licensed pilots. FR 80279, Dec. 4, 1980] (5) Pay pilots no more than the local rates. § 700.753 Ships and craft in drydock. (b) A pilot is merely an adviser to the (a) The commanding officer of a ship commanding officer. His presence on in drydock shall be responsible for ef- board shall not relieve the command- fecting adequate closure, during such ing officer or any of his subordinates periods as they will be unattended, of from their responsibility for the proper all openings in the ship’s bottom upon performance of the duties with which which no work is being undertaken by they may be charged concerning the
30
VerDate 25
navigation and handling of the ship. plans of the ship, and all the pertinent For an exception to the provisions of information relative to the general this paragraph, see ‘‘Rules and Regula- condition of the ship and the work tions Covering Navigation of the Pan- being undertaken on the hull, machin- ama Canal and Adjacent Waters,’’ ery, and equipment, upon reporting for which directs that the pilot assigned to duty. a vessel in those waters shall have con- (2) Inspect the ship as soon after re- trol of the navigation and movement of porting for duty as practicable, and fre- the vessel. Also see the provisions of quently thereafter, in order to keep these regulations concerning the navi- gation of ships at a naval shipyard or himself informed of the state of her station, or in entering or leaving dry- preparation for service. If, during the dock. course of these inspections, he notes an unsafe or potentially unsafe condition, § 700.755 Safe navigation and regula- he shall report such condition to the tions governing operation of ships commander of the naval shipyard or and aircraft. the supervisor of shipbuilding and to (a) The commanding officer is re- his superior for resolution. sponsible for the safe navigation of his (3) Keep himself informed as to the ship or aircraft except as prescribed progress of the work being done, in- otherwise in these regulations for ships cluding tests of equipment, and make at a naval shipyard or station in dry- such recommendations to the com- dock, or in the Panama Canal. In time mander of the naval shipyard or the su- of war or armed conflict, or in exer- pervisor of shipbuilding as he deems cises simulating war or armed conflict, appropriate. competent authority may modify the use of lights or other safeguards re- (4) Ensure that requisitions are sub- quired by law to prevent collisions at mitted for articles to outfit the ship sea, in port, or in the air. In exercises, which are not otherwise being pro- such modifications will be employed vided. only when ships or aircraft clearly will (5) Prepare the organization of the not be hazarded. ship. (b) Professional standards and regu- (6) Make such reports as may be re- lations governing ship handling, safe quired by higher authority, and include navigation, safe anchoring and related therein a statement of any deficiency operational matters shall be promul- in material or personnel. gated by the Chief of Naval Operations. (b) If the prospective commanding of- (c) Professional standards and regula- ficer does not consider the ship in prop- tions governing the operation of naval er condition to be commissioned at the aircraft and related matters shall be time the commander of the naval ship- promulgated by the Chief of Naval Op- yard or the supervisor of shipbuilding erations or the Commandant of the Ma- rine Corps as appropriate. signifies his intention of transferring the ship to him, he shall report that § 700.756 Duties of the prospective conclusion with his reasons therefor, in commanding officer of a ship. writing, to the commander of the naval (a) Except as may be prescribed by shipyard or the supervisor of shipbuild- the Chief of Naval Operations, the pro- ing and to the appropriate higher au- spective commanding officer of a ship thority. not yet commissioned shall have no (c) If the ship is elsewhere than at a independent authority over the prepa- naval shipyard, the relationship be- ration of the ship for service by virtue tween the prospective commanding of- of his assignment to such duty, until ficer and the supervisor of shipbuild- the ship is commissioned and trans- ing, or other appropriate official, shall ferred to his command. As the prospec- be the same as that between the pro- tive commanding officer, he shall: spective commanding officer and the (1) Procure from the commander of commander of a naval shipyard as spec- the naval shipyard or the supervisor of ified in this article. shipbuilding the general arrangement
31
VerDate 25
§ 700.757 Authority of the commanding (d) No concealment shall be made of officer or prospective commanding any circumstance that may subject a officer of a naval nuclear powered ship or aircraft of the Navy to quar- ship. antine. The Chief of Naval Operations shall (e) Should there appear at any time be responsible for providing the com- on board a ship or aircraft conditions manding officer or prospective com- which present a hazard of introduction manding officer of a naval nuclear pow- of a communicable disease outside the ered ship with the authority and direc- ship or aircraft, the commanding offi- tion necessary to carry out his respon- cer or aircraft commander shall at sibilities for the safety of the ship and once report the fact to the senior offi- crew, and the health and safety of the cer present, to other appropriate high- general public in surrounding area. er authorities and, if in port, to the health authorities having quarantine § 700.758 Inspection incident to com- missioning of ships. jurisdiction. He shall prevent all con- tracts likely to spread disease until When a ship is to be commissioned, pratique is received. The commanding the authority designated to place such officer of a ship in port shall hoist the ship in commission shall, just prior to appropriate signal. commissioning, cause an inspection to be made to determine the cleanliness § 700.764 Customs and immigration in- and readiness of the ship to receive its spections. crew and outfit. In the case of the de- livery of a ship by a contractor, the (a) The commanding officer or air- above inspection shall precede accept- craft commander shall facilitate any ance of the ship. A copy of the report of proper examination which it may be this inspection shall be furnished the the duty of a customs officer or an im- officer detailed to command the ship migration officer of the United States and to appropriate commands, bureaus to make on board the ship or aircraft or offices. under his command. He shall not per- mit a foreign customs officer or an §§ 700.759–700.762 [Reserved] immigation officer to make any exam- ination whatsoever, except as herein- § 700.763 Quarantine. after provided, on board the ship, air- (a) The commanding officer or air- craft, or boats under his command. craft commander of a ship or aircraft (b) When a ship or aircraft of the shall comply with all quarantine regu- Navy or a public vessel manned by lations and restrictions, United States naval personnel and operating under or foreign, for the port or area within the direction of the Department of the which his ship or aircraft is located. Navy is carrying cargo for private com- (b) Whether or not liable to quar- mercial account, such cargo shall be antine, the commanding officer shall subject to the local customs regula- afford every facility to visiting health tions of the port, domestic or foreign, officers, United States or foreign, and shall give all information required by in which the ship or aircraft may be, the latter, insofar as permitted by the and in all matters relating to such requirements of military security. cargo, the procedure prescribed for pri- (c) The commanding officer shall vate merchant vessels and aircraft allow no intercourse with a port or shall be followed. Government-owned area or with other ships or aircraft stores or cargo in such ship or aircraft until he has consulted local health au- not landed nor intended to be landed thorities when: nor in any manner trafficked in, are, (1) Doubt exists as to the sanitary by the established precedent of inter- regulations or health conditions of the national courtesy, exempt from cus- port or area. toms duties, but a declaration of such (2) A quarantine condition exists stores or cargo, when required by local aboard his ship or aircraft. customs regulations, shall be made. (3) Coming from a suspected port or Commanding officers shall prevent, as area, or one actually under quarantine. far as possible, disputes with the local
32
VerDate 25
authorities in such cases, but shall pro- §§ 700.766–700.767 [Reserved] tect the ship or aircraft and the Gov- ernment-owned stores and cargo from § 700.768 Care of ships, aircraft, vehi- any search or seizure. cles and their equipment. (c) Upon arrival from a foreign coun- The commanding officer shall cause try, at the first port of entry in United such inspections and tests to be made States territory, the commanding offi- and procedures carried out as are pre- cer, or the senior officer of ships or air- scribed by competent authority, to- craft in company, shall notify the col- gether with such others as he deems lector of the port. Each individual necessary to ensure the proper preser- aboard shall, in accordance with cus- vation, repair, maintenance, and oper- toms regulations, submit a list of arti- ation of any ship, aircraft, vehicle, and cles purchased or otherwise acquired their equipment assigned to his com- by him abroad. Dutiable articles shall mand. not be landed until the customs officer has completed his inspection. Subpart H—Precedence, (d) Commanding officers of naval ves- Authority, and Command sels and aircraft transporting United States civilian and foreign military § 700.811 Exercise of authority. and civilian passengers shall satisfy (a) All persons in the naval service on themselves that the passenger clear- active service, and those on the retired ance requirements of the Immigration list with pay, and transferred members and Naturalization Service are com- of the Fleet Reserve and the Fleet Ma- plied with upon arrival at points with- rine Corps Reserve, are at all times in the jurisdiction of the United subject to naval authority. While on States. Clearance for such passengers active service they may, if not on leave by an immigration officer is necessary of absence except as noted below, on upon arrival from foreign ports and at the sick list, taken into custody, under the completion of movements between arrest, suspended from duty, in con- any of the following: Continental finement, or otherwise incapable of dis- United States (including Alaska and charging their duties, exercise author- Hawaii), Canal Zone, Puerto Rico, Vir- ity over all persons who are subordi- gin Islands, Guam, American Samoa, nate to them. or other outlying places subject to (b) A person in the naval service, al- United States jurisdiction. Command- though on leave, may exercise author- ing officers prior to arriving shall ad- ity: vise the cognizant naval or civilian (1) When in a naval ship or aircraft port authority of the aforementioned and placed on duty by the commanding passengers aboard and shall detain officer or aircraft commander. them for clearance as required by the (2) When in a ship or aircraft of the Immigration and Naturalization Serv- armed services of the United States, ice. other than a naval ship or aircraft, as (e) The provisions of this article shall the commanding officer of naval per- not be construed to require delaying sonnel embarked, or when placed on the movements of any ship or aircraft duty by such officer. of the Navy in the performance of the (3) When senior officer at the scene of assigned duty. a riot or other emergency, or when placed on duty by such officer. § 700.765 Environmental pollution. The commanding officer shall cooper- §§ 700.812–700.816 [Reserved] ate with local, state and other govern- mental authorities in the prevention, § 700.817 Authority of an officer who control and abatement of environ- succeeds to command. mental pollution to the extent re- (a) An officer who succeeds to com- sources and operational considerations mand due to incapacity, death, depar- permit. He shall be aware of existing ture on leave, detachment without re- policies regarding polution control and lief, or absence due to orders from com- he should recommend remedial meas- petent authority of the officer detailed ures when appropriate. to command has the same authority
33
VerDate 25
and responsibility as the officer whom § 700.901 The senior officer present. he succeeds. Unless some other officer has been so (b) An officer who succeeds to com- designated by competent authority, mand during the temporary absence of the ‘‘senior officer present’’ is the sen- the commanding officer shall make no ior line officer of the Navy on active changes in the existing organization, duty, eligible for command at sea, who and shall endeavor to have the routine is present and in command of any part and other affairs of the command car- of the Department of the Navy in the ried on in the usual manner. locality or within an area prescribed by (c) When an officer temporarily suc- competent authority, except where per- ceeding to command signs official cor- sonnel of both the Navy and the Marine respondence, the word ‘‘Acting’’ shall Corps are present on shore and the offi- appear below his signature. cer of the Marine Corps who is in com- mand is senior to the senior line officer §§ 700.818–700.829 [Reserved] of the Navy. In such cases, the officer of the Marine Corps shall be the senior § 700.830 Authority of a sentry. officer present on shore.
A sentry, within the limits stated in § 700.902 [Reserved] his orders, has authority over all per- sons on his post. § 700.903 Authority and responsibility. At all times and places not excluded §§ 700.831–700.833 [Reserved] in these regulations, or in orders from § 700.834 Orders to active service. competent authority, the senior officer present shall assume command and di- (a) No person who is not on active rect the movements and efforts of all service or leave of absence shall be or- persons in the Department of the Navy dered into active service or on duty present, when, in his judgment, the ex- without permission of the Com- ercise of authority for the purpose of mandant of the Marine Corps, or the cooperation or otherwise is necessary. Chief of Naval Personnel, except: He shall exercise his authority in a (1) In the case of a person on leave of manner consistent with the full oper- absence by the officer who granted the ational command vested in the com- leave or a superior. manders of unified or specified com- (2) By the senior officer present on a mands. foreign station. § 700.904 Authority of senior officer of (b) In the event that the senior offi- the Marine Corps present. cer present of a foreign station issues The authority and responsibility of any orders as contemplated by this ar- the senior officer present are also con- ticle, he shall report the facts, includ- ferred upon the senior commanding of- ing the reasons for issuing such orders, ficer of the Marine Corps present with to the Chief of Naval Personnel or the respect to those units of the Marine Commandant of the Marine Corps, Corps, including Navy personnel at- without delay. tached, which are in the locality and (c) Retired officers of the Navy and not under the authority of the senior Marine Corps may be ordered to active officer present. service, with their consent, in time of peace. In time of war or a national §§ 700.905–700.921 [Reserved] emergency, such retired officers may, § 700.922 Shore patrol. at the discretion of the Secretary of the Navy, be ordered to active service. (a) When liberty is granted to any considerable number of persons, except in an area that can absorb them with- Subpart I—The Senior Officer out danger of disturbance or disorder, Present the senior officer present shall cause to be established, temporarily or perma- SOURCE: 39 FR 7220, Feb. 25, 1974 unless oth- nently, in charge of an officer, a suffi- erwise noted. cient patrol of officers, petty officers,
34
VerDate 25
and noncommissioned officers to main- §§ 700.924–700.934 [Reserved] tain order and suppress any unseemly conduct on the part of any person on § 700.935 Exercise of power of consul. liberty. The senior patrol officer shall When upon the high seas or in any communicate with the chief of police foreign port where there is no resident or other local officials and make such consul of the United States, the senior arrangements as may be practicable to officer present afloat has the authority aid the patrol in carrying out its duties to exercise all powers of a consul in re- properly. Such duties may include pro- lation to mariners of the United viding assistance to military personnel States. in relations with civil courts and po- lice, arranging for release of service §§ 700.936–700.939 [Reserved] personnel from civil authorities to the parent command, and providing other § 700.940 Granting of asylum and tem- services that favorably influence dis- porary refuge. cipline and morale. (a) If an official of the Department of (b) A patrol shall not be landed in the Navy is requested to provide asy- any foreign port without first obtain- lum or temporary refuge, the following ing the consent of the proper local offi- procedures shall apply: cials. Tact must be used in requesting (1) On the high seas or in territories permission; and, unless it is given will- under exclusive United States jurisdic- ingly and cordially, the patrol shall tion (including territorial seas, the not be landed. If consent cannot be ob- Commonwealth of Puerto Rico, terri- tained, the size of liberty parties shall tories under United States administra- be held to such limits as may be nec- tion, and possessions): essary to render disturbances unlikely. (i) At his request, an applicant for (c) Officers and men on patrol duty in asylum will be received on board any a foreign country normally should not naval aircraft or water-borne craft, be armed. In the United States, officers Navy or Marine Corps activity or sta- and men may be armed as prescribed tion. by the senior officer present. (ii) Under no circumstances shall the (d) No officer or man who is a mem- person seeking asylum be surrendered ber of the shore patrol or beach guard, to foreign jurisdiction or control, un- or is assigned in support thereof, shall less at the personal direction of the partake of or indulge in any form of in- Secretary of the Navy or higher au- toxicating beverage or other form of thority. Persons seeking political asy- intoxicant while on duty, on post, or at lum should be afforded every reason- other times prescribed by the senior able care and protection permitted by patrol officer. The senior patrol officer the circumstances. shall ensure that the provisions of this (2) In territories under foreign juris- paragraph are strictly observed and diction (including foreign territorial shall report promptly in writing to the seas, territories, and possessions): senior officer present all violations of (i) Temporary refuge shall be granted these provisions that may come to his for humanitarian reasons on board a notice. All officers and men of the pa- naval aircraft or water-borne craft, trol shall report to the senior patrol of- Navy or Marine Corps activity or sta- ficer all violations of the provisions of tion, only in extreme or exceptional this paragraph on the part of those circumstances wherein life or safety of under them. a person is put in imminent danger, such as pursuit by a mob. When tem- § 700.923 Precautions for health. porary refuge is granted, such protec- The senior officer present shall take tion shall be terminated only when di- precautions to preserve the health of rected by the Secretary of the Navy or the persons under his authority. He higher authority. shall obtain information regarding the (ii) A request by foreign authorities healthfulness of the area and medical for return of custody of a person under facilities available therein and shall the protection of temporary refuge will adopt such measures as are required by be reported to the CNO or Commandant the situation. of the Marine Corps. The requesting
35
VerDate 25
foreign authorities will be informed them, or withhold them from those that the case has been referred to high- persons authorized to have access to er authorities for instructions. them. (iii) Persons whose temporary refuge is terminated will be released to the § 700.1116 Disclosure and publication protection of the authorities des- of information. ignated in the message authorizing re- (a) No person in the Department of lease. the Navy shall convey or disclose by (iv) While temporary refuge can be oral or written communication, graph- granted in the circumstances set forth ic (including photographic) or other above, permanent asylum will not be means, any classified information ex- granted. cept as provided in the Department of (v) Foreign nationals who request as- the Navy Information Security Pro- sistance in forwarding requests for po- gram Regulation. Additionally, no per- litical asylum in the United States will son in the Department of the Navy be advised to apply in person at the shall communicate or otherwise deal nearest American Embassy or Con- with foreign entities, even on an un- sulate. classified basis, when such would com- (3) The Chief of Naval Operations or mit the Department of the Navy to dis- Commandant of the Marine Corps, as close classified military information, appropriate, will be informed by the except as may be required in his offi- most expeditious means of all action cial duties and only after coordination taken pursuant to paragraphs (a)(1) with and approval by the release au- and (a)(2) of this section, as well as the thority stipulated in the Department attendant circumstances. Telephone or of the Navy Information Security Pro- voice communications will be used gram Regulation. where possible, but must be confirmed (b) No person in the Department of as soon as possible with an immediate the Navy shall convey or disclose by precedence message, information to oral or written communication, publi- the Secretary of State (for actions cation, or other means, except as may taken pursuant to paragraphs (a)(2)(i) be required by his official duties, any and (a)(2)(v) of this section, also make information concerning the Depart- the appropriate American Embassy or ment of Defense or forces, or any per- Consular Office an information ad- son, thing, plan or measure pertaining dressee). If communication by tele- thereto, where such information might phone or voice is not possible, notifica- be of possible assistance to a foreign tion will be effected by an immediate power; nor shall any person in the De- precedence message, as described partment of the Navy make any public above. The Chief of Naval Operations speech or permit publication of any ar- or Commandant of the Marine Corps ticle written by or for him which is will cause the Secretary of the Navy prejudicial to the interests of the and the Deputy Director for Operations United States. The regulations con- of the National Military Command cerned with the release of information Center to be notified without delay. to the public through any media will be (b) Personnel of the Department of as prescribed by the Secretary of the the Navy shall neither directly nor in- Navy. directly invite persons to seek asylum (c) No person in the Department of or temporary refuge. the Navy shall disclose any informa- tion whatever, whether classified or [41 FR 18074, Apr. 30, 1976] unclassified, or whether obtained from official records or within the knowl- Subpart J—Rights and Responsibil- edge of the relator, which might aid or ities of Persons in the Depart- be of assistance in the prosecution or ment of the Navy support of any claim against the United States. The prohibitions pre- § 700.1115 Control of official records. scribed by the first sentence of this No person, without proper authority, paragraph are not applicable to an offi- shall withdraw official records or cor- cer or employee of the United States respondence from the files, or destroy who is acting in the proper course of,
36
VerDate 25
and within the scope of, his official du- of the Manual of the Judge Advocate ties, provided that the disclosure of General. such information is otherwise author- ized to be disclosed by statute, Execu- §§ 700.1118–700.1119 [Reserved] tive order of the President, or depart- mental regulation. § 700.1120 Rules for preventing colli- sions, afloat and in the air. (d) Any person in the Department of the Navy receiving a request from the (a) All persons in the naval service public for Department of the Navy responsible for the operation of naval records shall be governed by security ships, craft and aircraft shall diligently classification markings, distribution observe the International Rules for statements on technical documents, Preventing Collisions at Sea, (com- and the term ‘‘For Official Use Only’’ monly called International Rules of the which may be used to identify material Road) Inland Rules of the Road, domes- or records not to be released to the tic and international air traffic regula- general public. The general regulations tions, and such other rules and regula- concerned with the availability to the tions as may be established by the Sec- public of the Department of the Navy retary of Transportation or other com- records shall be as prescribed by the petent authority for regulating traffic Secretary of the Navy. and preventing collisions on the high (e) Persons in the Department of the seas, in inland waters, or in the air, where such laws, rules and regulations Navy desiring to submit manuscripts are applicable to naval ships and air- to commercial publishers, or profes- craft. In those situations where such sional, political or international sub- law, rule or regulation is not applicable jects shall comply with regulations to naval ships, craft or aircraft they promulgated by the Secretary of the shall be operated with due regard for Navy. safety of others. (f) No person in the naval service on (b) Any significant infraction of the active duty or civilian employee of the laws, rules and regulations governing Department of the Navy shall act as traffic or designed to prevent collisions correspondent of a news service or peri- on the high seas, in inland waters, or in odical, or as a television or radio news the air, which may be observed by per- commentator or analyst, unless as- sons in the naval service shall be signed to such duty in connection with promptly reported to their superiors, the public affairs activities of the De- including the Chief of Naval Operations partment of the Navy, or authorized by or Commandant of the Marine Corps the Secretary of the Navy. Except as when appropriate. authorized by the Secretary of the (c) Reports need not be made under Navy, no person assigned to duty in this article if the facts are otherwise connection with public affairs activi- reported in accordance with other di- ties of the Department of the Navy rectives, including duly authorized shall receive any compensation for act- safety programs. ing as such correspondent, commenta- tor, or analyst. §§ 700.1121–700.1132 [Reserved] [39 FR 7135, Feb. 25, 1974, as amended at 41 FR 18075, Apr. 30, 1976; 45 FR 80279, Dec. 4, § 700.1133 Use of title for commercial 1980] enterprises. No person in the naval service shall, § 700.1117 Official records in civil while on extended naval service, use courts. his grade or rating in connection with No person in the Department of the a commercial enterprise. ‘‘Extended Navy shall produce or release any offi- naval service,’’ for the purposes of this cial record in response to a subpoena article, is defined as active duty, other duces tecum, motion for discovery, in- than active duty for training, under a terrogatory or otherwise in a civil suit, call or order that does not specify a pe- or in connection with preliminary in- riod of thirty days or less. This article vestigations by attorneys or others ex- shall not apply to a person who is not cept in accordance with the provisions on active service, nor shall it apply to
37
VerDate 25
authorship of any material for publica- reaus, offices or commands of the Navy tion, by persons on either active or in- Department. active service, provided that such ma- terial is published in accordance with §§ 700.1145–700.1149 [Reserved] existing regulations. § 700.1150 Alcoholic liquors. §§ 700.1134–700.1142 [Reserved] (a) Except as may be authorized by the Secretary of the Navy, the intro- § 700.1143 Return of Government prop- erty on release from active service. duction, possession or use of alcoholic liquors for beverage purposes on board When a person is released from active any ship, craft, aircraft, or in any vehi- service, he shall return all Government cle of the Department of the Navy is property in his possession to his com- prohibited. The transportation of alco- manding officer or other competent au- holic liquors for personal use ashore is thority. authorized, subject to the discretion of § 700.1144 Issue or loan of public prop- the officer in command or officer in erty. charge, or higher authority, when the liquors are delivered to the custody of (a) Except as prescribed in this arti- the officer in command or officer in cle, public property including supplies, charge of the ship, craft, or aircraft in shall not be issued, on loan or other- sealed packages, securely packed, prop- wise, to any state, organization, or pri- erly marked and in compliance with vate individual except by special au- thority of Congress. customs laws and regulations, and stored in securely locked compart- (b) When so authorized by the senior ments, and the transportation can be officer present, a commanding officer may issue such supplies as can be performed without undue interference spared to those in distress in the event with the work or duties of the ship, of a public exigency or calamity, or to craft, or aircraft. Whenever alcoholic vessels in distress, and, when so au- liquor is brought on board any ship, thorized, he may issue rations and ne- craft, or aircraft for transportation for cessities to destitute seamen and air- personal use ashore, the person who men of the United States who are re- brings it on board shall at that time ceived on board. The supply officer file with the officer in command or of- making such an issue shall do so only ficer in charge of the ship, craft, or air- pursuant to an order in writing, shall craft, a statement of the quantity and procure receipts when practicable for kind of alcoholic liquor brought on the supplies issued, and shall render ac- board by him, together with his certifi- counts for such supplies in accordance cation that its importation will be in with the instructions contained in the compliance with customs and internal Naval Supply System Command Man- revenue laws and regulations and appli- ual or the Marine Corps Supply Man- cable State or local laws at the place of ual, as appropriate. debarkation. (c) Public property, except aircraft, (b) The introduction, possession, and may be loaned by the commandant of a use of alcoholic liquors for beverage naval district to a state located within purposes or for sale is authorized with- the district and maintaining naval mi- in naval activities and other places litia organizations, for use by a naval ashore under naval jurisdiction, to the militia organization in that state, pro- extent and in such manner as the Sec- vided that 95 percent of the personnel retary of the Navy may prescribe. of the last-mentioned organization are attached to or associated with a unit of § 700.1151 Responsibilities concerning the naval reserve, and provided that marijuana, narcotics, and other the naval militia organization con- controlled substances. forms to the standards prescribed by (a) All personnel shall endeavor to the Secretary of the Navy for similar prevent and eliminate the unauthor- organizations of the Naval Reserve. A ized use of marijuana, narcotics, and report of such loans shall be made by other controlled substances within the the commandant to the interested bu- naval service.
38
VerDate 25
(b) Except for authorized medicinal § 700.1202 Issuances concerning mat- purposes, the introduction, possession, ters over which control is exer- use, sale, or other transfer of mari- cised. juana, narcotic substances or other Responsible officers and officials of controlled substances on board any the Department of the Navy may issue, ship, craft, or aircraft of the Depart- or cause to be issued, orders, instruc- ment of the Navy or within any naval tions, directives, manuals or similar station or other place under the juris- publications concerning matters over diction of the Department of the Navy, which they exercise command, control, or the possession, use, sale, or other or supervision. transfer of marijuana, narcotic sub- stances or other controlled substances PART 701—AVAILABILITY OF DE- by persons in the naval service, is pro- PARTMENT OF THE NAVY hibited. RECORDS AND PUBLICATION OF (c) The term controlled substance DEPARTMENT OF THE NAVY means: a drug or other substance in- DOCUMENTS AFFECTING THE cluded in Schedule I, II, III, IV, or V es- PUBLIC tablished by section 202 of the Com- prehensive Drug Abuse Prevention and Subpart A—Department of the Navy Control Act of 1970 (84 Stat. 1236), as Freedom of Information Act Program updated and republished under the pro- visions of that Act. Sec. 701.1 Purpose. 701.2 Applicability. §§ 700.1152–700.1160 [Reserved] 701.3 Definitions. 701.4 Policy. § 700.1161 Endorsement of commercial 701.5 Responsibility and authority. product or process. 701.6 Format and procedures for requesting Except as necessary during contract information under FOIA. 701.7 Procedures for processing FOIA re- administration to determine specifica- quests. tion or other compliance, no person in 701.8 Records requiring special handling. the Department of the Navy, in his of- 701.9 For Official Use Only. ficial capacity, shall endorse or express 701.10 FOIA appeals/judicial actions. an opinion of approval or disapproval 701.11 Publication, indexing, and public in- spection of certain classes of records. of any commercial product or process. Subpart B—FOIA Exemption Guidelines Subpart K—Purpose and Force of 701.21 General. Regulations within the Depart- 701.22 Exemption (b)(1). ment of the Navy 701.23 Procedures for processing classified documents. § 700.1201 Purpose and force of United 701.24 Exemption (b)(2). States Navy Regulations. 701.25 Exemption (b)(3). 701.26 Exemption (b)(4). United States Navy Regulations is 701.27 Exemption (b)(5). the principal regulatory document of 701.28 Exemption (b)(6). the Department of the Navy, endowed 701.29 Exemption (b)(7). with the sanction of law, as to duty, re- 701.30 Exemption (b)(8). 701.31 Exemption (b)(9). sponsibility, authority, distinctions, and relationships of various commands, Subpart C—Addresses for Department of officials, and individuals. Other regula- the Navy Records and Locations for tions, instructions, orders, manuals, or Public Inspection similar publications, shall not be issued within the Department of the 701.31 Addresses for requests for Depart- ment of the Navy records. Navy which conflict with, alter or 701.32 Locations at which Department of amend any provision of Navy Regula- the Navy records are available for public tions. inspection.
39
VerDate 25
Subpart D—Fee Guidelines 701.119 Exemptions for specific Marine Corps records systems. 701.40 FOIA fees. 701.41 Definitions. AUTHORITY: 5 U.S.C. 552. 701.42 Application. EDITORIAL NOTE: For nomenclature 701.43 Fee restrictions. changes for this part see 59 FR 29721, June 9, 701.44 Fee waivers. 1994. 701.45 Fee assessment. 701.46 Aggregating requests. 701.47 Effect of the Debt Collection Act of Subpart A—Department of the 1982 (Pub. L. 97-365). Navy Freedom of Information 701.48 Computation of fees. Act Program 701.49 Collection of fees. 701.50 Search time costs. 701.51 FOIA fee remittance/receipt controls. SOURCE: 56 FR 66574, Dec. 24, 1991, unless 701.52 Technical data fees. otherwise noted. 701.53 Other technical data records. § 701.1 Purpose. Subpart E—Indexing, Public Inspection, Subparts A, B, C, and D of this part and Federal Register Publication of implement the Freedom of Information Department of the Navy Directives Act (5 U.S.C. 552), and the Department and Other Documents Affecting the of Defense Directives 5400.7 and 5400.7-R Public. series1, Department of Defense Free- 701.61 Purpose. dom of Information Act Program, (See 701.62 Scope and applicability. 32 CFR part 286) and promote uniform- 701.63 Policy. ity in the Department of the Navy 701.64 Publication of adopted regulatory Freedom of Information Act (FOIA) documents for the guidance of the public. Program. It is written to provide guid- 701.65 Availability, public inspection, and ance to members of the public on how indexing of other documents affecting and where to submit FOIA requests and the public. 701.66 Publication of proposed regulations appeals within the Department of the for public comment. Navy. 701.67 Petitions for issuance, revision, or cancellation of regulations affecting the § 701.2 Applicability. public. Subparts A, B, C, and D of this part apply throughout the Department of Subpart F—Department of the Navy the Navy. It governs disclosure of agen- Privacy Act Program cy records to ‘‘any person,’’ which 701.100 Purpose. means that any individual, to include 701.101 Applicability. foreign citizens, partnerships, corpora- 701.102 Definitions. tions, associations and foreign, state, 701.103 Policy. or local governments, may use the 701.104 Responsibility and authority. FOIA to obtain information. The ex- 701.105 Systems of records. ception to that policy is that it does 701.106 Safeguarding records in systems of records. not apply to Federal agencies or to fu- 701.107 Criteria for creating, altering, gitives from justice. amending, and deleting Privacy Act sys- (a) Requests from state or local govern- tems of records. ment officials. Requests from state or 701.108 Collecting information about indi- local government officials for naval viduals. records are treated the same as any 701.109 Access to records. other requester. 701.110 Amendment of records. (b) Requests from foreign governments. 701.111 Privacy Act appeals. 701.112 Disclosure of records. Requests from foreign governments for 701.113 Exemptions. naval records are treated the same as 701.114 Enforcement actions. any other requester. However, requests 701.115 Computer matching program. from foreign governments that do not
Subpart G—Privacy Act Exemptions 1 Copies may be obtained if needed, from 701.116 Purpose. the U.S. Naval Publications and Forms Cen- 701.117 Exemption for classified records. ter, Attn: Code 1053, 5801 Tabor Avenue, 701.118 Exemptions for specific Navy record Philadelphia, PA 19120. systems. 40
VerDate 25
invoke the FOIA shall be referred to tices authorized in that instruction appropriate foreign disclosure channels conflict in any respect, the provisions and the requester so notified. of these subparts shall be controlling. (c) Privileged release to U.S. Govern- (f) U.S. Navy Regulations. Release of a ment officials. Naval records may be au- record to a member of the public under thenticated and released to U.S. Gov- FOIA shall be deemed to have occurred ernment officials if they are requesting in the discharge of official duties (Arti- them on behalf of Federal govern- cle 1120, U.S. Navy Regulations (1990)). mental bodies, whether legislative, ex- Process a request by a member of the ecutive, administrative, or judicial. public under the instructions outlined For example: in Section 3 of Chapter 11, U.S. Navy (1) To a committee or subcommittee Regulations. of Congress, or to either House sitting (g) Other directives. The following di- as a whole. rectives, and other directives and in- (NOTE: Requests from Members of Congress structions cited in part 701, to the ex- who are not seeking records on behalf of a tent they do not conflict, provide addi- Congressional Committee, Subcommittee, or tional information relating to subparts either House sitting as a whole, but on be- A, B, C, and D of this part. Should the half of their constituents, are treated the practices authorized in the directives same as any other requester). conflict in any respect, the provisions (2) To the Federal courts, whenever of these subparts shall be controlling. ordered by officers of the court as nec- (1) Marine Corps Manual, paragraph essary for the proper administration of 1015 (NOTAL); Marine Corps Order justice. P5720.56, Availability to the Public of (3) To other Federal agencies, both Marine Corps Records (NOTAL); and executive and administrative, as deter- for Headquarters, U.S. Marine Corps, mined by the head of a naval activity HQO P5000.12, Chapter 10 (NOTAL) and or designee. HQO 5720.9 (NOTAL). In those instances, naval activities (2) Federal Personnel Manual, chap- shall mark the records as ‘‘Privileged’’ ters 293, 294, 297, 335, 339, and 713 and ‘‘Exempt from Public Disclosure.’’ (NOTAL)—release of information from Any special handling instructions shall active and inactive civilian personnel also be annotated on the records. Be- records. cause such releases are not made under (3) Manual of the Medical Depart- the provisions of the FOIA, they do not ment, U.S. Navy (NAVMED P-117), impact on future decisions to release/ Chapters 23-70 through 23-79 (NOTAL) deny requests for the same records to release of information from active and other requesters. inactive medical records. (d) Publication and public availability (4) JAGINST 5800.7C, Manual of the of special classes of records. The require- Judge Advocate General (JAGMAN), ments of 5 U.S.C. 552 that certain class- Chapter V (NOTAL). es of Department of the Navy regu- (h) Relationship between FOIA and the latory, rulemaking, and organizational Privacy Act (PA). Not all requesters are records must be published in the FED- knowledgeable of the appropriate stat- ERAL REGISTER for the guidance of the utory authority to cite when request- public and made available for public in- ing records. In some instances, they spection and copying are implemented may cite neither Act, but will imply in 32 CFR part 701, subpart C. one or both Acts. For those reasons, (e) Public affairs regulations. Subparts the following guidelines are provided A, B, C, and D of this part are intended to ensure that requesters receive the to complement, not restrict, the con- greatest amount of access rights under duct of Department of the Navy public both Acts. affairs, media relations, community re- (1) Requesters who seek records lations and internal relations functions about themselves contained in a PA and practices authorized in Secretary system of records and who cite or of the Navy Instruction 5720.44 series, imply PA, will have their requests ‘‘Department of the Navy Public Af- processed under the provisions of PA fairs Regulations.’’ Should the prac- (see subpart F of this part).
41
VerDate 25
(2) Requesters who seek records (i) Objects or articles, such as struc- about themselves which are not con- tures, furniture, paintings, sculpture, tained in a PA system of records and three-dimensional models, vehicles, who cite or imply PA, will have their equipment, and parts of wrecked air- requests processed under FOIA provi- craft and ships, whatever their histori- sions, since they have no access under cal value, or value as evidence. PA. (ii) Administrative tools by which (3) Requesters who seek records records are created, stored, and re- about themselves which are contained trieved, if not created or used as in a PA system of records and who cite sources of information about organiza- or imply FOIA or both Acts will have tions, policies, functions, decisions, or their requests processed under the time procedures of a naval activity. Nor- limits of FOIA and the exemptions and mally, computer software, including fees of PA. That is appropriate since source code, object code, and listings of greater access will be received under source and object codes, regardless of PA. medium are not agency records (that (4) Requesters who seek access to does not include the underlying data agency records and who cite or imply which is processed and produced by PA and FOIA, will have their requests such software and which may in some processed under FOIA. instances be stored with the software). (5) Requesters who seek access to Exceptions to this position are out- agency records and who cite or imply lined in § 701.3(b)(3). FOIA, will have their requests proc- (iii) Anything that is not a tangible essed under FOIA. or documentary record, such as an in- If the requester has failed to cite the dividual’s memory or oral communica- appropriate Act, naval activities shall tion. apprise the requester in the final re- (iv) Personal records of an individual sponse under which Act his/her request not subject to agency creation or re- was processed. tention requirements, created and maintained primarily for the conven- § 701.3 Definitions. ience of an agency employee, and not (a) FOIA request. A written request distributed to other agency employees for Department of the Navy records, for their official use. made by ‘‘any person,’’ including a (v) Information stored within a com- member of the public (U.S. or foreign puter for which there is no existing citizen), an organization, or a business, computer program for retrieval of the but not including a Federal agency or a requested information. fugitive from the law that either ex- (3) In some instances, computer soft- plicitly or implicitly invokes 5 U.S.C. ware may have to be treated as a agen- 552, Department of Defense Directives cy record and processed under the 5400.7 and 5400.7-R series, ‘‘Department FOIA. Such situations are rare and of Defense Freedom of Information Act shall be treated on a case-by-case basis. Program’’ (see 32 CFR part 286) and/or Examples of when computer software subparts A, B, C, and D of this part. may have to be treated as an agency (b) Agency record. (1) The products of record are: data compilation, such as all books, pa- (i) When the data is embedded within pers, maps, and photographs, machine the software and cannot be extracted readable materials, or other documen- without the software. In that situation, tary materials, regardless of physical both the data and the software must be form or characteristics, made or re- reviewed for release or denial under ceived by an agency of the United FOIA. States Government under Federal law (ii) Where the software itself reveals or in connection with the transaction information about organizations, poli- of public business and in Department of cies, functions, decisions, or procedures the Navy’s possession and control at of a naval activity, such as computer the time a FOIA request is made. models used to forecast budget outlays, (2) The following are not included in calculate retirement system costs, or this definition: optimization models or travel costs.
42
VerDate 25
Review exemptions (b)(4) and (b)(5) at record’’ response if he/she believes an § 701.26 and § 701.27 of subpart B of this adequate search was not conducted. part for guidance on release determina- (g) Public interest. Public interest is tions of computer software. official information that sheds light on (4) A record must exist and be in the a naval activity’s performance of its possession and control of the Depart- statutory duties because it falls within ment of the Navy at the time of the re- the statutory purpose of FOIA in in- quest to be considered subject to this forming citizens about what their gov- part and the FOIA. There is no obliga- ernment is doing. That statutory pur- tion to create, compile, or obtain a pose, however, is not fostered by disclo- record to satisfy a FOIA request. sure of information about private citi- (5) If unaltered publications and proc- zens that is accumulated in various essed documents, such as regulations, manuals, maps, and related geo- governmental files that reveals little physical materials are available to the or nothing about an agency’s or offi- public through an established distribu- cial’s own conduct. tion system with or without charge, (h) Electronic data. Electronic data the provisions of 5 U.S.C. 552(a)(3) nor- are those records and information mally do not apply and they need not which are created, stored, and re- be processed under the FOIA. Nor- trieved by electronic means. This does mally, documents disclosed to the pub- not include computer software, which lic by publication in the FEDERAL REG- is the tool by which to create, store, or ISTER also require no processing under retrieve electronic data. the FOIA. In such cases, naval activi- ties should direct the requester to the [56 FR 66574, Dec. 24, 1991, as amended at 59 FR 29721, June 9, 1994] appropriate source to obtain the record. § 701.4 Policy. (c) Release authority. Release authori- ties are commanding officers and heads It is Department of the Navy policy of Navy and Marine Corps shore activi- to make its records available to re- ties or their designee that are author- questers in accordance with FOIA. ized to furnish copies of records under When requested, Navy and Marine their cognizance for which no FOIA ex- Corps activities shall assist requesters emption applies. in complying with the administrative (d) Initial Denial Authority (IDA). An requirements necessary to request ma- official who has been granted authority terials sought under the Act. to withhold records under FOIA, either (a) Openness with the public. The pub- in whole or in part, based on the FOIA lic has a right to information concern- exemptions. IDAs may also grant or ing the activities of its government. deny requests for reduction or waiver Department of the Navy policy is to of fees. See § 701.5 for a list of IDAs. conduct its activities in an open man- (e) Appellate authority. The Secretary ner and to provide the public with a of the Navy (SECNAV) has delegated maximum amount of accurate and his appellate authority to the Navy timely information concerning its ac- Judge Advocate General (NJAG) and tivities, consistent always with the le- the General Counsel (OGC) to rule on administrative appeals of denials of gitimate public and private interests of FOIA requests for information under the American people. A Department of their cognizance, as outlined in § 701.10. the Navy record requested by a mem- (f) Administrative appeal. A request by ber of the public who follows rules es- a member of the general public, made tablished by proper authority shall under FOIA, asking the appellate au- only be withheld when it is exempt thority to reverse the IDA’s decision to from mandatory public disclosure withhold all or part of a requested based on one or more of the nine FOIA record or to deny a request for waiver exemptions. or reduction of fees. A requester may (b) Avoidance of procedural obstacles. also file an administrative appeal for Naval activities shall ensure that pro- non-response to a FOIA request within cedural matters do not unnecessarily the statutory time limits or for a ‘‘no
43
VerDate 25
impede a requester from obtaining De- (b)(7)(C)—personal information con- partment of the Navy records prompt- tained in investigatory records which if ly. Naval activities shall provide as- released would constitute an unwar- sistance to requesters to help them un- ranted invasion of privacy. Exemptions derstand and comply with procedures (b)(4), (b)(6), and (b)(7)(C) cannot be established by this instruction. Fees claimed for information which was sup- shall not be used to discourage request- plied by the requester of the informa- ers (see subpart D of this part). tion. (c) Prompt action on requests. When a (e) Public domain. Nonexempt records requester complies with the procedures released under this instruction are con- established in this instruction for ob- sidered in the public domain. Exempt taining naval records, the request shall receive prompt attention. A reply shall records released under this instruction be dispatched within 10 working days, or other statutory or regulatory au- unless a delay is authorized. If a naval thority may be considered to be in the activity has a significant number of re- public domain only when their release quests (i.e., 10 or more), the requests constitutes a waiver of a FOIA exemp- shall be processed in order of receipt. tion. When release does not constitute This, however, does not preclude a such a waiver, such as disclosure to a naval activity from acting on a request properly constituted advisory commit- which can be easily answered, regard- tee or a Congressional Committee, the less of its ranking within the order of released records do not lose their ex- receipt. A naval activity may also ex- empt status. Also, while authority may pedite action on a request regardless of exist to disclose records to individuals its ranking within the order of receipt in their official capacity, this instruc- upon a showing of exceptional need or tion applies if the same individual urgency. Exceptional need or urgency seeks the records in a private or per- is determined at the discretion of the sonal capacity. activity processing the request. (f) Creating a record. (1) A record must (d) Use of exemptions/discretionary re- exist and be in the possession and con- lease. Department of the Navy policy is trol of the Department of the Navy at to make records publicly available, un- the time of the search to be considered less they qualify for withholding under subject to FOIA. Mere possession of a one or more of the nine FOIA exemp- record does not presume departmental tions (see subpart B of this part for an control; such records, or identifiable in-depth review of the exemptions). portions, should be referred to the orig- Naval activities may elect to make a inating activity for direct response to discretionary release. A discretionary the requester. There is no obligation to release to one requester may, however, create or compile a record to satisfy a preclude the withholding of similar in- FOIA request. A naval activity may, formation under a FOIA exemption if subsequently requested by the same in- however, compile a new record if it is a dividual or someone else. Suggest the more useful response to the requester, following language be included with or less burdensome to the naval activ- the discretionary release of any record ity than providing existing records, that could be subject to withholding: and the requester does not object. The cost of creating or compiling such a The information you requested is subject record may not be charged to the re- to being withheld under section (b) of the Freedom of Information Act. The release of quester unless the fee for creating the this material to you by the Department of record is equal to or less than the fee the Navy is discretionary and does not con- which would be charged for providing stitute a waiver of our right to claim this ex- the existing record. See subpart D of emption for similar records in the future. this part for fees. Additionally, a discretionary release (2) With respect to electronic data, is generally not appropriate for records the issue of whether records are actu- exempt from disclosure under exemp- ally or merely extracted from an exist- tions (b)(1)—classified; (b)(3)—exempt- ing database is not always readily ap- ed by statute; (b)(4)—trade secret/pro- parent. Consequently, when responding prietary; (b)(6)—personal privacy; and to FOIA requests for electronic data
44
VerDate 25
where creation of a record, program- Program (see 32 CFR part 286). CNO has ming, or particular format are ques- designated the Assistant Vice Chief of tionable, naval activities should apply Naval Operations (N09B30) as principal a standard of reasonableness (i.e., if the Department of the Navy FOIA Coordi- capability exists to respond to a re- nator to: quest, and the effort would be a ‘‘busi- (1) Set Department of the Navy pol- ness as usual’’ approach, then the re- icy on the provisions of the FOIA. quest should be processed; however, the (2) Serve as principal advisor on all request need not be processed when the FOIA matters. capability to respond does not exist (3) Oversee the administration of the without a significant expenditure of re- FOIA program, which includes prepar- sources, thus not being a normal ‘‘busi- ing the Department of the Navy An- ness as usual’’ approach). In such in- nual FOIA Report for submission to stances, the requester is advised that Congress. no record exists and the FOIA does not (4) Develop a Navy-wide FOIA train- require agencies to create or compile a ing program and serve as training-over- record to satisfy a FOIA request. sight manager. (g) Reasonably segregable information. (5) Conduct staff assistance visits FOIA requires that all ‘‘reasonably seg- within the Department of the Navy to regable’’ information must be released review compliance with 5 U.S.C. 552 when the meaning of these portions is and subparts A, B, C, and D of this not distorted by deletion of the denied part. portions, and when it reasonably can (6) Set Department of the Navy pol- be assumed that a skillful and knowl- icy on the marking, handling, safe- edgeable person could not reasonably guarding and transmission of docu- reconstruct the excised information. ments marked ‘‘For Official Use Only.’’ When a record is denied in whole, the response to the requester will specifi- (b) Commandant of the Marine Corps cally state that it is not reasonable to (CMC). CMC is responsible for admin- segregate portions of the record for re- istering and supervising the execution lease. of this instruction within the Marine (h) Special mail services. Naval activi- Corps. The Commandant has des- ties are authorized to use registered ignated the Director of Administration mail, certified mail, certificates of and Resource Management (Code AR) mailing, and return receipts. However, as the FOIA Coordinator for Head- this use should be limited to instances quarters, U.S. Marine Corps. where it appears advisable to establish (c) FOIA coordinator. Each addressee proof of dispatch or receipt of FOIA is responsible for implementing and ad- correspondence. ministering a FOIA program under this (i) Authentication of records released instruction. Each addressee shall des- under FOIA. In addition to the require- ignate a FOIA Coordinator to: ments of FOIA, records provided under (1) Serve as principal point of contact FOIA shall be authenticated when nec- on FOIA matters. essary to fulfill an official govern- (2) Provide training for activity/com- mental or other legal function. Au- mand personnel on the provisions of 5 thentication will be made with an ap- U.S.C. 552 and subparts A, B, C, and D propriate seal. This service is not in- of this part. cluded in the FOIA fee schedule and (3) Issue an implementing instruction naval activities may charge $5.20 for which designates the activity’s FOIA each authentication. Coordinator and Initial Denial Author- ity(ies), provides guidance on the § 701.5 Responsibility and authority. marking, handling, and safeguarding of (a) Chief of Naval Operations (CNO). documents marked FOUO, FOIA CNO is designated as the official re- records disposition, and FOIA process- sponsible for administering and super- ing procedures. vising the execution of 5 U.S.C. 552 and (4) Review internal directives, prac- Department of Defense Directives tices, and procedures, including those 5400.7 and 5400.7-R series, Department for forms and records, for conformity of Defense Freedom of Information Act with this instruction, when applicable.
45
VerDate 25
(5) Compile input and submit consoli- documents or records under his or her dated Annual FOIA Report to Echelon cognizance; to grant one 10-working 2 FOIA Coordinator, who, in turn, will day formal extension to the time limit provide consolidated report to CNO for responding to FOIA requests; and to (N09B30). deny requests to waive or reduce FOIA (6) Review activity conformance with fees when the information sought re- the marking, handling, transporting, lates to matters within their respective and safeguarding of FOUO information. geographical areas of responsibility or (7) Provide guidance on handling chain of command. FOIA requests and the scope of the (2) Within the Department of the FOIA exemptions. Navy, the following chief officials, (8) Review subpart C of this part and their respective vice commanders, dep- provide CNO (N09B30) with updated in- uties, and their principal assistants are formation, as appropriate. designated as IDAs. (9) Conduct staff assistance visits (i) Department of the Navy: Civilian within command and lower echelon Executive Assistants; CNO; CMC; Chief commands to ensure compliance with of Naval Personnel; Commanders of the FOIA. Naval Systems Commands, Office of (10) Echelon 2 FOIA Coordinators Naval Intelligence, Naval Security shall provide CNO (N09B30) with a com- Group Command, and Naval Computer plete listing of all FOIA Coordinators and Telecommunications Command; under their jurisdiction. Such informa- Chief, Bureau of Medicine and Surgery; tion should include activity name and Auditor General of the Navy; Naval In- address, office code, name of FOIA Co- spector General; Director, Office of Ci- ordinator, and commercial and autovon vilian Personnel Management; Chief of telephone numbers. Naval Education and Training; Com- (d) Release Authorities. (1) The role of mander, Naval Reserve Force; Chief of the release authority is to respond to Naval Research; Commander, Naval requests for documents under his/her Meteorology and Oceanography Com- cognizance for which no FOIA exemp- mand; heads of DON Staff Offices, tion applies. Release authorities are Boards, and Councils; Flag Officers. commanding officers and heads of all NJAG and his Deputy, and the OGC and Navy and Marine Corps activities (de- his Deputies, are excluded from this partmental and field). grant of authorization. While the (2) Release authorities are required NJAG and OGC are not Initial Denial to coordinate with officials having cog- Authorities, they are authorized to fur- nizance over the subject matter of the ther delegate the authority conferred requested record, if there is a question here to other senior officers/officials as to its releasability. However, if it is within NJAG and OGC. determined that a requested record re- (ii) Initial Denial Authorities may quires withholding, in whole or in part, choose to delegate initial denial au- the release authority must refer the thority to those major activities under documents along with recommenda- their control that receive voluminous tions regarding release to the initial requests. Such action is discretionary denial authority (IDA) in the chain of and should be limited. command. If geographically isolated, (iii) For the shore establishment: the release authority may forward the (A) All officers authorized under Ar- request to another IDA, if so author- ticle 22, Uniform Code of Military Jus- ized by the IDA in the chain of com- tice (UCMJ), or designated in section mand. 0120, Manual of the Judge Advocate (3) For records which are part of the General, to convene general courts- Navy’s Privacy Act (PA) systems of martial. records, the record custodian specified (B) Director, Naval Criminal Inves- in the systems notice is the appro- tigative Service and Deputy Com- priate authority to respond to the re- mander, Naval Legal Service Com- quest. mand. (e) Initial Denial Authorities (IDAs). (1) (iv) In the Operating Forces: All offi- The IDA role is to deny and grant re- cers authorized by Article 22, UCMJ, or quests, either in whole or in part, for designated in section 0120, Manual of
46
VerDate 25
the Judge Advocate General (JAGINST ment that enables the Government to 5800.7C), to convene general courts- locate the record with a reasonable martial. amount of effort. FOIA does not au- [56 FR 66574, Dec. 24, 1991, as amended at 59 thorize ‘‘fishing expeditions.’’ If a re- FR 29721, June 9, 1994] quest does not contain a reasonable de- scription, the naval activity shall ad- § 701.6 Format and procedures for re- vise the requester of the defect and questing information under FOIA. when possible assist the requester in (a) Minimum requirements. In an effort reframing the request. Naval activities to eliminate any unnecessary burdens are not obligated to act on the request on members of the public, the Depart- until the requester responds with more ment of the Navy does not require re- specificity. When practical, naval ac- questers to complete a specific form to tivities shall assist the requester in file a FOIA request. A request can be identifying the records sought and in written or typed, but at a minimum reformulating the request to reduce should: the burden on the agency in complying (1) Be in writing and indicate ex- with FOIA. pressly, or clearly imply, that it is a (1) The following guidelines are pro- request under 5 U.S.C. 552, Department vided for ‘‘fishing expedition’’ requests of Defense Directives 5400.7 and 5400.7- and are based on the principle of rea- R, Department of Defense Freedom of sonable effort. Descriptive information Information Act Program (see 32 CFR about a record may be divided into two part 286), or subparts A, B, C, and D of broad categories—file related and this part. Verbal requests are not hon- event related. File related includes in- ored. formation on the type of record (e.g., (2) Contain a reasonable description memorandum, letter, etc.), title, index of the particular record(s) requested to citation, subject area, date the record enable naval personnel to locate or was created, and originator. Event re- identify the particular record(s) de- lated includes the circumstances re- sired with a reasonable amount of ef- sulting in the record’s creation or date fort. and circumstances surrounding the (3) Contain a clear statement of the event the record covers. requester’s willingness to pay all fees (2) Generally, a record is reasonably or those up to a specified amount if the described when the description con- fees are expected to exceed the mini- tains sufficient file related information mum fee waiver threshold, or provide to permit an organized non-random satisfactory evidence that he or she is search of the activity’s filing arrange- entitled to a waiver or reduction of ments and existing retrieval systems, such fees. or when the record contains sufficient (b) Identification of addressees. To ex- event related information needed to pedite processing of requests, request- conduct such a search. ers should submit written requests di- (3) The following guidelines deal with rectly to the naval activity having cog- requests for personal records. Ordi- nizance over the records and clearly narily, when personal identifiers are show all addressees within the Depart- provided only in connection with a re- ment of the Navy, Department of De- quest for records concerning the re- fense, or other Federal agency to whom quester, only records retrievable by that or a similar request was also sent. personal identifiers need be searched. That procedure will reduce processing Search for such records may be con- time requirements and ensure better ducted under PA procedures (see sub- inter and intra-agency coordination. part F of this part). No record may be Naval activities are under no obliga- denied that is releasable under FOIA. tion to establish procedures to receive (4) The previous guidelines notwith- hand delivered requests. standing, the decision of a naval activ- (c) Reasonably describe the record(s) ity concerning reasonableness of de- being sought. Identification of the scription must be based on knowledge record being sought is the responsibil- of its files. If the description enables ity of the requester. The requester naval personnel to locate the record must provide a description of the docu- with reasonable effort, the description
47
VerDate 25
is adequate. However, if a naval activ- tion to or grounds for waiver of the ity receives a request not ‘‘reasonably minimum requirements. described’’ it shall notify the requester of the defect and provide guidance on § 701.7 Procedures for processing specificity required to begin a search. FOIA requests. (d) Fees. (1) Fees may not be used to (a) Control system. All requests for discourage requesters. If fees are ex- records which cite or imply the FOIA pected to exceed the minimum fee must be entered into a formal control waiver threshold of $15.00, the re- system, either manual or computer- quester is required to address fees in ized, that is designed to track the re- the request, i.e., a willingness to pay quest from receipt to response. Infor- all fees or those up to a specified mation contained in the tracking sys- amount, or request a waiver/reduction tem should at a minimum include the of fees. name of the requester, the date of the (2) To assist naval activities in deter- request, the date the request was re- mining assessable fees, requesters are ceived, suspense date, and the date the encouraged to identify the fee category response was made. This will ensure for which they wish to be considered. If that the requester is apprised of the the requester believes he/she qualifies status of his/her request within 10 for a waiver/reduction of fees, request- working days and will provide required ers are required to provide specific jus- information should the requester chal- tification regarding qualification for a lenge the processing of his/her request. (1) Receipt controls. At a minimum, waiver so that decision can be ren- date stamp the request upon receipt, dered. See Subpart D of this Part 701 establish a suspense control record and for further information on fees. follow-up procedures, and conspicu- (e) Treatment of requests which do not ously stamp or label the request meet the minimum requirements. (1) In ‘‘FREEDOM OF INFORMATION ACT those instances when a request does REQUEST’’ to indicate priority han- not meet the minimum requirements, dling throughout processing. Naval ac- naval activities should nonetheless re- tivities are encouraged to assign a turn the requests within 10 working FOIA Case Number for each request days and advise the requester of how to and to apprise the requester of the perfect the request. Naval activities number assigned. This number is an ef- may contact the requester by tele- fective tool for tracking, filing, and re- phone to refine the request. For exam- trieving the request. ple, if a requester has failed to ‘‘reason- (2) Forwarding controls. As a rule, re- ably describe’’ the records being quests forwarded to another activity sought, he/she may be asked to provide for action should have the letter of re- identifying data such as location, time- ferral and envelope conspicuously frame, originator, background informa- stamped or labeled ‘‘FREEDOM OF IN- tion, etc., to enable a search. If the re- FORMATION ACT REQUEST’’ and a quester has failed to mention fees and record shall be kept of the request, and fees are applicable, the requester the date and activity to which it was should be provided an estimate of the forwarded. cost involved in processing the request. (b) Time limits. Once a request has When practicable, naval activities are been received by a naval activity hav- encouraged to contact requesters to ing cognizance over the requested clarify what they are seeking. record(s), that activity has 10 working (2) If a request fails to qualify within days (excluding Saturdays, Sundays, this instruction but the requested and legal holidays) to issue a letter record is available and releasable in its which advises the requester of the ac- entirety, the responding official may tion to be taken on the request (i.e., provide a copy of the record if he or she documents are denied; documents are determines it to be in the best interest released; documents will be released of the activity. This provision is within within a specific timeframe). If a naval the sole and exclusive discretion of the activity is unable to comply with the responsible official of the activity con- request within the 10 working day cerned and does not create an excep- timeframe, then a formal or informal
48
VerDate 25
time extension must be pursued and a time should be explained to the re- letter forwarded to the requester advis- quester, with notification that the ing of the extension. delay may be treated as an initial de- (1) A formal time extension letter is nial with a right to appeal, or that the issued in those instances where an ac- requester may agree to await a sub- tivity requires up to an additional 10 stantive response by an anticipated working days to respond to a request date. It should be made clear that any because of the need to: such agreement does not prejudice the (i) Search. The need to search for and right of the requester to appeal the ini- collect records located in whole or part tial decision after it is made. Further, at places separate from the activity naval activities should be advised that processing the request; the requester still retains the right to (ii) Examine. The need to search for, treat this delay as a defacto denial collect, and examine a substantial with full administrative remedies. number of records responsive to a re- (6) Informal extension of time lim- quest; or, its—a recommended alternative is to (iii) Consult. The need to consult with negotiate an informal extension of another naval activity or federal agen- time with the requester. The advan- cy with a substantial interest in the tages include the ability to agree on a determination of the request. mutually acceptable date to respond (2) A formal time extension response that exceeds 10 working days, and the must be issued by the IDA within 10 letter of confirmation does not require working days of receipt of the request, the signature of an IDA. Additionally, describe the circumstance(s) for the it does not impact on the additional delay, and indicate the anticipated days the appellate authority may take date for a substantive response. when responding to an appeal. (3) In those instances where it ap- (c) Decision to release records. Release pears the request might be ultimately authorities may release records under denied, in whole or in part, the appel- their cognizance which do not qualify late authority (i.e., NJAG or OGC) may for denial under FOIA exemptions. be consulted by expeditious means Such responses should be made within prior to authorizing a formal exten- the applicable time limits of FOIA and sion. should be processed as follows: (4) In those instances when it is an- (1) If the requested records are releas- ticipated the normal statutory time able in their entirety, release authori- limits (including the statutory time ties should forward the records to the extension) are insufficient to provide a requester and advise of any applicable response, the IDA shall acknowledge fees. the request in writing prior to the expi- (2) If the requested records are releas- ration of the normal statutory time able in their entirety but not yet avail- limits (including the statutory time able, the release authority should no- extension), describe the cir- tify the requester the request has been cumstance(s) requiring the delay and approved and the requested records will indicate the anticipated date for the be forwarded by a specified date. substantive response. The requester (3) If the request for examination of shall be advised that an appeal may be records is approved, notify the re- made to the cognizant appellate au- quester of the time and place. thority within 60 calendar days or (d) Processing documents originated by/ await a substantive determination by a created for another activity. (1) If an offi- specified date. It shall be made clear cial receives a request for records that that such an agreement does not preju- he or she holds, but which were origi- dice the right of the requester to ap- nated by another naval activity, the of- peal an adverse substantive determina- ficial shall normally coordinate with tion. that activity prior to referring the (5) In those unusual cases where the FOIA request and copies of the re- statutory time limits cannot be met quested documents to the originator and no informal extension has been for direct response. The naval activity agreed to, the inability to process any that initially received the request is part of the request within the specified responsible for notifying the requester
49
VerDate 25
of the referral. The originating naval is in the possession and control of the activity shall not release or deny such Department of the Navy, it must be de- records without prior consultation termined that the record is included in with the referring naval activity. one or more of the nine categories of (2) If an official receives a request for records exempt from mandatory disclo- records that he or she holds, but were sure as provided by the FOIA and ad- created for another naval activity or dressed at subpart B of this part. government agency, the official shall (1) Because release authorities can- refer the FOIA request and copies of not deny information, they must for- the requested documents to that activ- ward responsive documents along with ity/agency for direct response, after co- their release determination to an IDA ordination and concurrence. The activ- for consideration and response to the ity/agency may have an equally valid requester. In those instances, the re- interest in withholding the record as lease authority will apprise the re- the naval activity that created it. In quester that his/her request and re- such referrals, the naval activity sponsive documents were referred to should provide a recommendation con- the activity having cognizance over the cerning release with the referral. The documents for a release determination naval activity that initially received and direct response to the requester. the request is responsible for notifying The referral to an IDA shall include a the requester of the referral. copy of the request, documents respon- (e) Processing misdirected requests. Re- sive to the request, recommendation on questers are not always aware of the partial/total denial, and supporting ra- correct activity to address a FOIA re- tionale for the exemption(s) claimed. quest. (2) When an IDA receives a referral (1) A request received by a naval ac- from a subordinate activity rec- tivity having no records responsive to ommending a FOIA request be denied the request shall only be referred to in whole or in part, or receives a FOIA another naval activity if the activity request for documents under his/her contacts the naval activity and con- cognizance, the IDA shall take one of firms its cognizance over the requested the following actions within 10 working information. When a member of the public complies with the procedures es- days: tablished in this instruction for obtain- (i) Deny or release the requested in- ing records, the request shall receive formation. If an IDA determines the prompt attention and a reply dis- record contains information which is patched within 10 working days, unless not releasable under FOIA, and any re- a delay is authorized. Each naval activ- leasable information contained in the ity is responsible for developing proce- record is not reasonably segregable dures to ensure the expeditious han- from the non-releasable information, dling, prompt retrieval, and review of notify the requester of the exemp- requested records. The 10 working day tion(s) claimed and provide procedures time limit commences upon receipt of to be followed should the requester de- the request by the cognizant activity. cide to appeal the determination to ap- (2) If the cognizant official is unable pellate authority. to respond to the requester within the (ii) If unable to respond within the statutory time limit, he or she may applicable time limits, explain the rea- seek a formal or informal extension of son(s) for the delay to the requester, time. with notification that he or she may (3) If a naval activity has a signifi- treat this delay as an initial denial cant number of requests (e.g., 10 or with a right to submit an administra- more), the requests generally will be tive appeal to the cognizant appellate processed in order of receipt. But a authority, or that the requester may naval activity may commence action agree to await a substantive deter- on an easily answered request, regard- mination by a specified date. It shall be less of its ranking within the order of made clear that any such agreement receipt. does not prejudice the right of the re- (f) Decision to deny records in whole or quester to appeal an adverse sub- in part. To deny a requested record that stantive determination.
50
VerDate 25
(iii) If an IDA determines that the re- (2) Lack of records. Requester advised quester’s claimed entitlement to waiv- that a search of files held by the naval er/reduction of fees is not warranted, activity has resulted in a failure to lo- IDAs shall notify the requester of such cate any responsive records. Such re- determination, provide the reason(s) sponse now requires that a requester be for the denial, and advise the requester advised of his/her right to appeal the of the right to appeal the determina- adequacy of the search to the cog- tion to the cognizant appellate author- nizant appellate authority. The re- ity within 60 calendar days. If the re- sponse does not normally require the quester appeals the denial to waive/re- signature of an IDA. duce fees, the release of the records (3) Failure of requester to reasonably may be withheld until the fee is paid or describe records being sought. Requester the appellate authority grants a waiv- advised that his/her request requires er/reduction of fees. specificity with regard to description (3) IDAs are responsible for maintain- of the records being sought to enable ing copies of initial denials in a form the naval activity to conduct a reason- suitable for rapid retrieval, periodic able search. Such responses generally statistical compilation, and manage- apprise the requester of the kind of ment evaluation. specificity required. (g) Excising documents—(1) Classified (4) Other failures by requester to comply documents. Since FOIA requires that all with published rules and/or directives. Re- reasonably segregable portions of docu- quester advised that he/she has failed ments be released to the requester, to comply with established rules/direc- there will be instances when portions tives, such as failure to agree to pay of documents which contain classified fees, and therefore the request is being markings are subject to release. In returned for refinement. these instances, naval activities shall (5) Withdrawal. Requester contacted cross through the classified markings the naval activity by telephone or let- that appear at the top and bottom of ter and advised he/she wishes to cancel the document and cross through any the request or appeal. classified paragraph markings that are (6) Not an agency record. Requester being released. This practice is nec- advised the information/records he/she essary to eliminate any appearance seeks is not an agency record as de- that a ‘‘classified’’ document was re- fined by § 701.3 of Subpart A. leased. (i) Consultation/coordination. The De- (2) Unclassified documents. Naval ac- partment of the Navy processes thou- tivities are encouraged to ‘‘blank out’’ sands of FOIA requests annually. Be- and bracket the denied information cause there is no central repository for and annotate the exemption(s) records and no central release/denial claimed. This practice will permit the authority, proposed responses shall be requester to easily identify informa- properly coordinated and appropriate tion being withheld and the basis for officials consulted prior to a response withholding. being made to the requester. Specifi- (h) ‘‘Other Reasons’’ for not releasing a cally: record. Besides denying a records in (1) Naval activities and federal agen- whole or in part, there are six ‘‘other cies with a substantial interest in the reasons’’ for not releasing a record. In subject matter of the requested records most instances, these ‘‘other reason’’ should be consulted prior to release or responses do not constitute a denial of denial of information. information and therefore do not re- (2) Public affairs officers or the Chief quire the signature of an IDA. They of Information (CHINFO) should be are: consulted when a FOIA request is re- (1) Transferred request. Requester ad- ceived from a news media representa- vised that his/her request and/ or re- tive, the records requested are consid- quested documents have been trans- ered newsworthy, or a denial of a re- ferred to another naval activity or fed- quest is expected to be publicly chal- eral agency having cognizance over the lenged. CHINFO should be promptly requested information for action and notified of any release having evident direct response. public affairs implications and a copy
51
VerDate 25
of the request and response should be of this part addresses when fees may be provided. collected in advance of forwarding the (3) The appropriate JAG attorney or documents. field counsel should be consulted on (2) All fees have been received. the interpretation and application of (3) Fees have been waived because this instruction where a denial of a re- they fall below the automatic fee waiv- quest is expected to be judicially chal- er threshold. lenged. (4) A request for waiver/reduction of (j) Response to the requester. (1) Initial fees has been denied. determinations to release or deny a record normally shall be made and the (5) Fees have been waived or reduced decision reported to the requester from a specified amount to another within 10 working days after receipt of specified amount because the rationale the request by the official designated provided in support of a request for to respond. When the time for response waiver has been accepted. becomes an issue, the official respon- (6) Fees due in a specified amount sible for replying shall acknowledge to have not been received (see subpart D the requester the date of the receipt of of this part for specific information on the request. FOIA fees and fee rates for technical (2) When a decision is made to release data). a record, a copy should be made avail- able promptly to the requester once he § 701.8 Records requiring special han- or she has complied with preliminary dling. procedural requirements. The following actions shall be taken (3) When a request for a record is de- on requests for: nied in whole or in part, the official (a) Classified records. (1) If a naval ac- designated to respond shall inform the tivity receives a request for informa- requester in writing of the IDA’s name, tion whose existence or nonexistence is rank, and title, shall cite the specific itself classifiable under Executive exemption(s) that apply in sufficient Order 12356, 50 U.S.C. 401, the naval ac- detail, and provide the requester with the name and address of the appellate tivity shall refuse to confirm or deny authority, should the requester desire the existence or nonexistence of the re- to file an appeal. When claiming ex- quested information. emption ‘‘(b)(1),’’ IDAs shall to the ex- (2) If a naval activity receives a re- tent reasonably feasible, provide the quest for documents in its custody that requester with a summary of the appli- were classified by another agency, or cable criteria for classification. Addi- which contains information classified tionally, the marking ‘‘For Official Use by another agency, it shall refer the re- Only’’ on a requested document does quest and copies of the requested docu- not constitute a basis for denial. Rath- ments to the originating agency for er, it alerts the reviewer that the docu- processing, and may, after consultation ment may contain information which with the originating agency inform the is protectible under exemptions (b)(2) requester of the referral. Referred through (b)(9). It is up to the reviewing records shall be identified consistent official to advise the requester of the with security requirements. In cases applicable exemptions and to release where the originating agency deter- all ‘‘reasonably segregable’’ informa- mines they can neither confirm nor tion. deny the existence or nonexistence of (k) Fees. The final response to the re- the requested information, the refer- quester should contain information on ring agency shall deny the request. the fee status of the request. Gen- erally, information shall reflect one or (3) If a naval activity receives a re- more of the following conditions: quest for classified records or informa- (1) ‘‘The fees for processing your re- tion originated by another naval activ- quest total $ . Please forward your ity, for which the head of the activity check or money order made payable to is not the classifying authority under the Treasurer of the United States to OPNAV Instruction 5520.1 series, ‘‘De- this office within 30 days.’’ Subpart D partment of the Navy Information and
52
VerDate 25
Personnel Security Program Regula- tial records. Requests for JAGMAN in- tion,’’ the request, copies of the re- vestigative reports and courts-martial quested documents, and a recommenda- records shall be promptly readdressed tion concerning release (if appropriate) and forwarded to NJAG and the re- shall promptly be readdressed and for- quester notified of the referral. warded to the official having classifica- (e) Mishap Investigation Reports tion authority for the subject matter. (MIRs). The Commander, Naval Safety That official will make a release deter- Center (COMNAVSAFECEN) is the re- mination concerning the classified in- lease/denial authority for all requests formation and notify the requester, or for mishap investigation reports. Re- the activity originally receiving the re- quests for mishap investigation reports quest, in 10 working days of that deter- shall be promptly readdressed and for- mination. The naval activity that ini- warded to COMNAVSAFECEN and the tially received the request has respon- requester notified of the referral. sibility for notifying the requester of (f) Naval Audit Service reports. The the referral. Referred records shall Auditor General of the Navy is the re- only be identified to the extent consist- lease/denial authority for all Naval ent with security requirements. Audit Service reports. Requests for (b) Naval Investigative Service (NIS)/ audit reports shall be promptly re- Naval Criminal Investigative Service addressed and forwarded to the Auditor (NCIS) reports. The Director, Naval General and the requester notified of Criminal Investigative Service, is the the referral. release/denial authority for all NIS/ (g) Technical documents controlled by NCIS reports. Accordingly, a request distribution statements. A request for a for a NIS/NCIS report shall be prompt- technical document to which ‘‘Dis- ly readdressed to NCIS and the re- tribution Statement B, C, D, E, F, or quester notified of the referral. Direct X’’ (see OPNAVINST 5510.1 series) is af- liaison with NCIS prior to the referral fixed shall be promptly readdressed and is encouraged. forwarded to the ‘‘controlling DOD of- (c) Naval Inspector General reports. (1) fice’’ for review and release determina- The Naval Inspector General tion. The naval activity that initially (NAVINSGEN) is the release/denial au- received the request is responsible for thority for all investigations and in- notifying the requester of the referral. spections conducted by or at the direc- Direct liaison with the cognizant offi- tion of NAVINSGEN and for any cial prior to referral is encouraged. records held by any command that re- (h) Records originated by other govern- late to Navy hotline complaints that ment agencies. When a request for have been referred to the NAVINSGEN. records originated by an agency out- Accordingly, such requests shall be side the Department of the Navy is re- promptly readdressed and forwarded to ceived, promptly readdress and forward NAVINSGEN and the requester noti- the request along with copies of the re- fied of the referral. Requests for local quested documents to the cognizant command Inspector General reports agency and notify the requester of the which have not been referred to the referral. That may be accomplished by NAVINSGEN may be released by the sending a copy of the referral letter, local command. less attachments, to the requester. The (2) The Deputy Naval Inspector Gen- 10 working day time limit begins when eral for Marine Corps Matters the request is received by the cog- (DNIGMC) is the release authority for nizant agency. If additional guidance is all investigations conducted by the required, contact CNO (N09B30) or CMC DNIGMC. Requests for local Marine (ARAD), as appropriate. Direct liaison Corps command Inspector General re- with the cognizant agency is encour- ports shall be coordinated with the aged to ensure expeditious handling of DNIGMC. the request. (d) Manual of the Judge Advocate Gen- (i) National Security Council (NSC)/ eral (JAGMAN) investigative reports and White House Documents. The Director, courts-martial records. NJAG is the re- NSC is the release/denial authority for lease/denial authority for all JAGMAN NSC documents or White House files. investigative reports and courts-mar- Requesters seeking NSC or White
53
VerDate 25
House documents should be notified to nial authority for all naval medical write directly to the NSC or White quality assurance documents as defined House for such documents. Department by Title 10, United States Code, Sec- of the Navy documents in which NSC tion 1102. Requests for medical quality or the White House has a concurrent assurance shall be promptly re- reviewing interest shall be forwarded addressed and forwarded to BUMED to the Office of the Assistant Secretary and the requester notified of the refer- of Defense (Public Affairs) (OASD(PA)), ral. ATTN: Directorate for Freedom of In- (m) Records of a non-U.S. Government formation and Security Review source. (1) When a request is received (DFOISR), which shall effect coordina- for a record that was obtained from a tion with the NSC or White House, and non-U.S. Government source, or for a return the documents to the originat- record containing information clearly ing activity after review and a release identified as provided by a non-U.S. determination is made. NSC or White Government source, the source of the House documents discovered in a naval record or information (known as ‘‘the activity’s files which are responsive to submitter’’ for proprietary data under a FOIA request shall be forwarded to FOIA exemption (b)(4)) shall be the Director, Freedom of Information promptly notified of the request and af- and Security Review, OASD(PA), for forded reasonable time (e.g., 30 cal- subsequent coordination with the NSC endar days) to present any objections or White House and returned to the concerning release, unless it is clear naval activity for a release determina- that there can be no valid basis for ob- tion. Additionally, in such instances an jection. That practice is required for information copy should be provided to FOIA requests for data not deemed CNO (N09B30). clearly exempt from disclosure under (j) Naval Telecommunications Proce- exemption (b)(4). If, for example, the dures (NTP) publications. The Com- record or information was provided mander, Naval Computer and Tele- with actual or presumptive knowledge communications Command of the non-U.S. Government source and (COMNAVCOMTELCOM) is the release/ established that it would be made denial authority for NTP publications. available to the public upon request, Requests for NTP publications shall be there is no obligation to notify the promptly readdressed and forwarded to source. Any objections shall be evalu- COMNAVCOMTELCOM and the re- ated. The final decision to disclose in- quester notified of the referral. Direct formation claimed to be exempt under liaison with COMNAVCOMTELCOM exemption (b)(4) shall be made by an prior to referral is encouraged. official equivalent in rank to the offi- (k) Naval Nuclear Propulsion Informa- cial who would make the decision to tion (NNPI). The Director, Naval Nu- withhold that information under FOIA. clear Propulsion Program (N00N/ When a substantial issue has been NAVSEA 08) is the release/denial au- raised, the naval activity may seek ad- thority for all information concerning ditional information from the source of NNPI. Naval activities receiving such the information and afford the source requests are responsible for searching and requester reasonable opportunities their files for responsive records. If no to present their arguments on legal documents are located, the naval activ- and substantive issues prior to making ity should respond to the requester and an agency determination. When the provide N00N with a copy of the re- source advises he or she will seek a re- quest and response. If documents are straining order or take court action to located, the request, responsive prevent release of the record or infor- records, and a recommendation regard- mation, the requester shall be notified ing release should be promptly re- and action on the request normally addressed to the CNO (N00N/NAVSEA shall not be taken until after the out- 08), who will ensure proper coordina- come of that court action is known. tion and review. When the requester brings court action (l) Medical quality assurance docu- to compel disclosure, the submitter ments. The Chief, Bureau of Medicine shall be promptly notified of this ac- and Surgery (BUMED) is the release/de- tion.
54
VerDate 25
(2) The coordination provisions of naval unit to which they are attached, this paragraph also apply to any non- and their presence or absence from U.S. Government record in the posses- their households. Release of such infor- sion and control of the Department of mation aids the targeting of service the Navy from multinational organiza- members and their families by terror- tions, such as the North Atlantic Trea- ists or other persons opposed to imple- ty Organization (NATO) and North mentation of national policy. Only an American Air Defense (NORAD), or for- extraordinary public interest in disclo- eign governments. Coordination with sure of this information can outweigh foreign governments will be made the need and responsibility of the Navy through the Department of State. to protect the tranquility and safety of (n) Government Accounting Office service members and their families (GAO) documents. On occasion, the De- who repeatedly have been subjected to partment of the Navy receives FOIA re- harassment, threats, and physical in- quests for GAO documents containing jury. Units covered by this policy are: Department of the Navy information, (i) Those units located outside the 50 either directly from requesters, or as states, District of Columbia, Common- referrals from the GAO. Since the GAO wealth of Puerto Rico, Guam, U.S. Vir- is outside the Executive Branch and gin Islands, and American Samoa. therefore not subject to FOIA, all FOIA (ii) Routinely deployable units. requests for GAO documents contain- Those units that normally deploy from ing Department of the Navy informa- homeport or permanent station on a tion will be processed by the Depart- periodic or rotating basis to meet oper- ment of the Navy. In those instances ational requirements or participate in when a requester seeks a copy of an un- scheduled exercises. This includes rou- classified GAO report, naval activities tinely deployable ships, aviation may apprise the requester of its avail- squadrons, operational staffs, and all ability from the Director, GAO Dis- units of the Fleet Marine Force (FMF). tribution Center, ATTN: DHISF, P.O. Routinely deployable units do not in- Box 6015, Gaithersburg, MD 20877-1450 clude ships undergoing extensive yard under their cash sales program. work or whose primary mission is sup- (o) Mailing lists. Frequent FOIA re- port of training, e.g., yard craft and quests are received for mailing lists of auxiliary aircraft landing training the home addresses and/or duty station ships. addresses of naval personnel. (1) A list of home addresses is not re- (iii) Units engaged in sensitive oper- leasable without the individuals’ con- ations. Those units primarily involved sent because it is a clearly unwar- in training for or conduct of covert, ranted invasion of the individuals’ per- clandestine, or classified missions, in- sonal privacy, and therefore, may be cluding units primarily involved in col- withheld from disclosure under 5 U.S.C. lecting, handling, disposing, or storing 552(b)(6), see subpart B of this part. of classified information and materials. (2) Unclassified information about This also includes units engaged in service members may be withheld when training or advising foreign personnel. disclosure ‘‘would constitute a clearly Examples of units covered by this ex- unwarranted invasion of personal pri- emption are nuclear power training fa- vacy’’ under FOIA (exemption (b)(6) ap- cilities, SEAL Teams, Security Group plies). Disclosure of lists of names and Commands, Weapons Stations, and duty addresses or duty telephone num- Communication Stations. bers of members assigned to units that (3) Except as otherwise provided, lists are stationed in foreign territories, containing names and duty addresses routinely deployable, or sensitive, con- of DOD personnel, both military and ci- stitutes a clearly unwarranted invasion vilian, who are assigned to units in the of personal privacy. Disclosure of such Continental United States (CONUS) information poses a security threat to and U.S. territories shall be released those service members because it re- regardless of who has initiated the re- veals information about their degree of quest. involvement in military actions in sup- (4) Exceptions to this policy must be port of national policy, the type of coordinated with the CNO (N09B30) or
55
VerDate 25
CMC (ARAD) prior to responding to re- printed in capital letters centered at quests, including those from Members the bottom on the outside of the front of Congress. The foregoing policy cover (if any), on each page containing should be considered when weighing FOUO information, and on the outside the releasability of the address or of the back cover (if any). phone number of a specifically named (2) An unclassified directive that con- individual. tains FOUO information shall have [56 FR 66574, Dec. 24, 1991, as amended at 59 FOR OFFICIAL USE ONLY typed, FR 29721, June 9, 1994] stamped, or printed in capital letters centered at the bottom on the outside § 701.9 For Official Use Only (FOUO). of the front cover (if any), on each page FOUO is a marking which is placed of the directive top and bottom, and on on documents to alert the holder that the outside of the back cover (if any). they contain information that may be (3) Within a classified document, an withheld under exemptions (b)(2) individual page that contains both through (b)(9) of the FOIA. Because FOUO and classified information shall FOUO is not a security classification, be marked at the top and bottom with exemption (b)(1) does not apply. the highest security classification of (a) Prior FOUO application. The prior information appearing on the page. application of FOUO is not a conclusive (4) Within a classified or unclassified basis for withholding a record re- document, an individual page that con- quested under FOIA. When such a tains FOUO information, but does not record is requested, it shall be evalu- contain classified information, shall ated to determine whether FOIA ex- have FOR OFFICIAL USE ONLY typed, emptions apply in withholding all or stamped, or printed in capital letters portions of the record. Information centered at the top and bottom edge of which is reasonably segregable and the page. does not fall under a FOIA exemp- (5) Other records, such as photo- tion(s) must be released to the re- graphs, films, cassette tapes, movies, quester. or slides, shall be marked FOR OFFI- (b) Historical papers. Records such as CIAL USE ONLY so that a recipient or notes, working papers, and drafts re- viewer knows the status of the infor- tained as historical evidence of Depart- mation. ment of the Navy actions have no spe- (6) Unclassified automatic data proc- cial status apart from FOIA exemp- essing (ADP) media with FOUO infor- tions. mation shall be marked as follows: (c) Time to mark records. The marking (i) An unclassified deck of punched or of records at the time of their creation aperture cards with FOUO information provides notice of FOUO content and shall be marked as a single document facilitates review when a record is re- with FOR OFFICIAL USE ONLY quested under the FOIA. Records re- marked on the face of the first and last quested under FOIA that do not bear card, and on the top of the deck. such markings, shall not be assumed to (ii) An unclassified magnetic tape, be releasable without examination for cassette, or disk pack that contains the presence of information that re- FOUO information shall have FOR OF- quires continued protection and quali- FICIAL USE ONLY marked externally fies as exempt from public release. on a removable label. The resulting (d) Distribution statement. Information hard copy report or computer printout in a technical document that requires a shall reflect the FOR OFFICIAL USE distribution statement under ONLY marking on the top and bottom OPNAVINST 5510.1 series, ‘‘Depart- of each page. It may be accomplished ment of the Navy Information and Per- by using a programmable header or sonnel Security Program Regulation,’’ marking the hard copy manually. shall bear that statement and may be (7) FOUO material transmitted out- marked FOUO, as appropriate. side the Department of the Navy re- (e) Location of markings. (1) An un- quires an expanded marking to explain classified document that contains the significance of the FOUO marking. FOUO information shall have FOR OF- This may be accomplished by typing or FICIAL USE ONLY typed, stamped, or stamping the following statement on
56
VerDate 25
the record prior to transfer: ‘‘This doc- tain the abbreviation ‘‘FOUO’’ before ument contains information EXEMPT the beginning of the text. Such mes- FROM MANDATORY DISCLOSURE sages shall be transmitted per commu- under the FOIA. Exemp- nications security procedures in ACP- tion(s)...apply(ies).’’ 121 (United States Supplement 1, (f) Release and transmission procedures. ‘‘Communication Instructions’’) for Until FOUO status is terminated, the FOUO information. following release and transmission in- (g) Transporting FOUO information. structions apply: Records which contain FOUO informa- (1) FOUO information may be dis- tion shall be transported in a manner seminated within Department of the that precludes disclosure of contents. If Navy activities and between officials of not commingled with classified infor- the Department of the Navy and con- mation, FOUO information may be tractors and grantees who conduct offi- sent via first-class mail or parcel post. cial business for the Department of the Bulky shipments that otherwise qual- Navy or Department of Defense. Re- ify under postal regulations may be cipients shall be made aware of the sta- sent fourth-class mail. tus of such information, and trans- (h) Safeguarding FOUO information. mission shall be by means that pre- (1) During normal working hours, clude unauthorized public disclosure. records determined to be FOUO shall Transmittal documents shall call at- be placed in an out-of-sight location if tention to the presence of FOUO at- the work area is accessible to non-gov- tachments. ernmental personnel. (2) Department of the Navy holders of (2) At the close of business, FOUO FOUO information may convey such records shall be stored to preclude un- information to officials in other de- authorized access. Filing such material partments or agencies of the executive with other unclassified records in un- and judicial branches to fulfill a gov- locked files, desks, or similar contain- ernmental function, subject to any lim- ers is adequate when U.S. Government itations contained in the Privacy Act or government contractor internal (PA) (see Subpart F of this Part 701), building security is provided during pertaining to disclosure of personal in- non-duty hours. When internal security formation from PA record systems. control is not exercised, locked build- When transmitting these records, en- ings or rooms normally provide ade- sure they are marked FOR OFFICIAL quate after-hours protection. If such USE ONLY, and the recipient is ad- protection is not considered adequate, vised the information has been exempt FOUO material shall be stored in from public disclosure under FOIA and locked receptacles, such as file cabi- that special handling instructions do nets, desks, or bookcases. FOUO or do not apply. For purposes of dis- records that are subject to the provi- closing records, Department of Defense sions of the PA (see Subpart F of this is the ‘‘agency.’’ Part 701) shall meet the safeguards for (3) Records released to Congress or that group of records as outlined in the the GAO should be reviewed to see if PA systems notice. the information warrants FOUO status. (3) Guidance for safeguarding media If not, prior FOUO markings shall be marked FOUO and processed by an removed. If the withholding criteria ADP system, activity, or network is are met, the records shall be marked addressed in OPNAVINST 5239.1 series, FOUO and the recipient provided an ex- ‘‘Department of the Navy Automatic planation for such exemption and Data Processing Security Program.’’ marking. Alternatively, the recipient (i) Termination. The originator or may be requested, without marking the other competent authority, such as an record, to protect it against public dis- IDA or appellate authority, will termi- closure for reasons that are explained. nate FOUO markings or status when (4) Each part of electronically trans- the information no longer requires pro- mitted messages containing FOUO in- tection from public disclosure. When formation shall be marked appro- FOUO status is terminated, all known priately. Unclassified messages con- holders shall be notified as practical. taining FOUO information shall con- Upon notification, holders shall remove
57
VerDate 25
the FOUO markings. Records in file or NJAG or OGC) within 60 days of the storage need not be retrieved solely for date of the response. that purpose. (2) The appeal letter must be in writ- (j) Disposal. (1) Non-record copies of ing and requesters should provide a FOUO material (including hard copy copy of the IDA’s response when filing reports and computer printouts) may a written appeal to the Navy’s appel- be destroyed by tearing each copy into late authorities (OGC or NJAG, de- pieces to preclude reconstructing, and pending on subject matter), regarding disposed in regular trash containers. an IDA’s decision that a record is ex- When local circumstances or experi- empt in whole or in part or because a ence indicates that this destruction naval activity denied a request for a method is insufficient, local authori- waiver/reduction of fees. The requester ties may direct other methods while should include a copy of the denial let- considering the additional expense bal- ter and provide supporting rationale on anced against the sensitivity of FOUO why the appeal should be granted. The information in the records. FOUO in- requester may appeal a ‘‘no records’’ formation on unclassified magnetic response if he/she believes an adequate storage media shall be disposed of by search of files was not conducted. overwriting the media one time with (b) Time of receipt. The time limits for any one character. Storage areas with- responding to a FOIA appeal commence in an ADP system (internal memory, when the appeal reaches the office of buffers, registers, and similar storage the appellate authority having juris- areas) may be cleared by using a hard- diction over the record. Misdirected ap- ware clear switch, a power-on reset peals should be referred expeditiously cycle, or a program designated to to the proper appellate authority. overwrite the storage area. (c) Appellate authorities.—(1) Respon- (2) Record copies of FOUO documents sibility and authority. NJAG and OGC shall be disposed of following the dis- are authorized to adjudicate appeals posal standards established under made to the Secretary of the Navy SECNAVINST 5212.5C (Records Dis- (SECNAV) on denials of requests for posal Manual) for the particular kind copies of Department of the Navy of record. records or portions thereof, or refusals (k) Unauthorized disclosure. The unau- to waive or reduce fees on matters thorized disclosure of FOUO records within their respective areas of cog- does not constitute an unauthorized nizance. That includes the authority to disclosure of Department of the Navy release or withhold records, or portions information classified for security pur- thereof, waive or reduce fees, and to poses. However, appropriate adminis- act as required by SECNAV for appeals trative or disciplinary action shall be under 5 U.S.C. 552 and subparts A, B, C, taken against those responsible. Unau- and D of this part. NJAG and OGC are thorized disclosure of FOUO informa- further authorized to delegate this au- tion that is protected by the PA may thority to a designated Assistant result in civil and criminal sanctions NJAG and the Principal Deputy OGC or against responsible person(s). The Deputy General Counsel (Logistics), re- naval activity that originated the spectively, under such terms and condi- FOUO information shall be informed of tions as they may deem appropriate. its unauthorized disclosure. (2) Respective areas of cognizance. As [56 FR 66574, Dec. 24, 1991, as amended at 59 delineated in SECNAV Instructions FR 29722, June 9, 1994] 5430.25D and 5430.27A (NOTAL), the re- spective areas of cognizance of NJAG § 701.10 FOIA appeals/judicial actions. and OGC for providing legal services (a) How to file an appeal. The follow- for the Department of the Navy are: ing guidelines should be followed by in- (i) NJAG. In addition to military law, dividuals wishing to appeal a denial of all matters except those falling under information, a request for waiver/re- the cognizance of OGC. duction of fees, or a ‘‘no record’’ re- (ii) OGC. Business and commercial sponse: law aspects of: (1) The appeal must be received by (A) Acquisition, custody, manage- the cognizant appellate authority (i.e., ment, transportation, taxation, and
58
VerDate 25
disposition of real and personal prop- (2) Final determinations on appeals erty and the procurement of services, shall normally be made within 20 work- including the fiscal, budgetary, and ac- ing days after receipt. counting aspects thereof; excepting, (f) Delay in responding to a FOIA ap- however, tort claims and admiralty peal. If additional time is needed due to claims arising independently of con- unusual circumstances, the final deci- tracts, and matters relating to the sion may be delayed for the number of naval petroleum reserves; working days (not to exceed 10), that (B) Operations of the Military Sealift were not utilized as additional time for Command, excepting tort and admi- responding to the initial request. If a ralty claims arising independently of determination cannot be made and the contracts; requester is notified within 20 working (C) Office of the Comptroller of the days, the appellate authority shall ac- Navy; knowledge to the requester in writing (D) Naval Computer and Tele- the date of receipt of the appeal, cir- communications Command; cumstances for the delay, and antici- (E) Patents, inventions, trademarks, pated date for substantive response. copyrights, royalty payments, and Requesters may be advised that if the similar matters; delay exceeds the statutory extension (F) Procurement of foreign military or is for reasons other than ‘‘unusual sales, co-production and cooperative circumstances,’’ they may consider research and development and related their administrative remedies ex- agreements, NATO standardization hausted. Further, requesters should be agreements, and matters relating to advised that they may wait for a sub- the Arms Exports Control Act; stantive response without prejudicing (G) Department of the Navy litiga- their right to judicial remedy. The ap- tion before the Armed Services Board pellate authority shall continue to of Contract Appeals; and, process the case expeditiously whether (H) Civilian personnel law matters on or not the requester seeks a court employing present and former Navy ci- order for release of the record(s). A vilian employees; and copy of any response provided subse- (I) Environmental matters. quent to filing of a complaint shall be (d) Addresses for appeals. Appeals forwarded to the Department of Jus- should be addressed to the cognizant tice. appellate authority. The addresses of the SECNAV’s designees are: (g) Action upon receipt. Upon receipt (1) Judge Advocate General, Navy De- of a FOIA appeal, NJAG or OGC shall partment, 200 Stovall Street, Alexan- inform the cognizant IDA of receipt of dria, VA 22332-2400. the appeal. The appellate authority (2) General Counsel of the Navy, 2211 will seek documentation from the IDA Jefferson Davis Highway, Arlington, from which to make a determination. VA 22244–5103. Normally, the IDA will be requested to (e) Time limits for filing FOIA appeals. forward a copy of the initial request, a (1) The requester should file the appeal copy of the response, a copy of excised so it reaches the appellate authority and unexcised documents, and support- not later than 60 calendar days from ing rationale for continued withholding the date of the initial denial letter. At (if applicable) to the appellate author- the end of 60 calendar days, the case ity within 10 working days. may be considered closed; however, the (h) Consultation/coordination. (1) The requester may file litigation for denial Assistant for Naval Investigative Mat- of the appeal. If the requester was pro- ters and Security (OP-09N) may be con- vided several incremental determina- sulted to resolve inconsistencies or dis- tions for a single request, the time putes involving classified records. limit for filing the appeal begins when (2) Direct liaison with appropriate of- the requester receives the last re- ficials within the Department of the sponse. Records which are denied shall Navy and other interested federal agen- be retained for a period of six years to cies is authorized at the discretion of meet the statute of limitations of the appellate authority, who also co- claims requirement. ordinates with appropriate Department
59
VerDate 25
of Defense officials and Justice as pre- evaluates the case de novo (anew) and scribed by directives of the Secretary may examine any requested record in of Defense (SECDEF). camera (in private) to determine (3) SECNAV or appropriate Civilian whether the denial was justified. Executive Assistants shall be consulted (2) Actions by the court. (i) When a and kept advised of cases with unusual naval activity fails to make a deter- implications. CHINFO shall be con- mination within the statutory time sulted and kept advised on cases hav- limits but can demonstrate due dili- ing public affairs implications. gence in exceptional circumstances, (i) Response to the requester. (1) When the court may retain jurisdiction and an appellate authority makes a deter- allow the naval activity additional mination to release all or a portion of time to complete its review of the records withheld by an IDA, a copy of records. the records released should be prompt- ly forwarded to the requester after (ii) If the court determines that the compliance with any procedural re- requester’s complaint is substantially quirements, such as payment of fees. correct, it may require the United (2) Final denial to provide a re- States to pay reasonable attorney fees quested record or to approve a request and other litigation costs. to waive or reduce fees must be made (iii) When the court orders the re- in writing by the appellate authority. lease of denied records, it may also The response shall include the follow- issue a written finding that the cir- ing: cumstances surrounding the withhold- (i) An explanation of the basis for the ing raise questions whether civilian denial including the applicable statu- personnel acted arbitrarily and capri- tory exemption(s) invoked. ciously. In these cases, the special (ii) If the final denial is based in counsel of the Merit Systems Protec- whole or in part on a security classi- tion Board will conduct an investiga- fication, the explanation shall include tion to determine whether or not dis- a determination that the record meets ciplinary action is warranted. The the cited criteria and rationale of the naval activity is obligated to take the governing Executive Order, is based on action recommended by the special a declassification review, and the re- counsel. view confirmed the continuing validity (iv) When a naval activity fails to of the security classification. comply with the court order to produce (iii) The response shall advise the re- quester that the material denied does records that have been withheld im- not contain reasonably segregable por- properly, the court may punish the re- tions. sponsible official for contempt. (iv) The response shall advise the re- (3) Non-United States Government quester of the right to judicial review. source information. A requester may (v) The final denial shall include the bring suit in a U.S. District Court to name and title of the official respon- compel the release of records obtained sible for the denial. from a non-government source or (vi) An information copy, less attach- records based on information obtained ments, should be provided to CNO from a non-government source. The (N09B30). source shall be notified promptly of the (j) Judicial actions. A requester may court action. If the source advises that seek an order from a U.S. District it is seeking court action to prevent re- Court to compel release of a record lease, the naval activity shall defer an- after exhaustion of administrative swering or otherwise pleading to the remedies, i.e., the IDA or appellate au- complaint as long as permitted by the thority denied release or when a naval Court or until a decision is rendered in activity failed to respond within the the court action initiated by the prescribed time limits. source, whichever is sooner. (1) Burden of proof. The naval activity has the burden of proof to justify its [56 FR 66574, Dec. 24, 1991, as amended at 59 refusal to provide a record. The court FR 29722, June 9, 1994]
60
VerDate 25
§ 701.11 Publication, indexing, and fied as 5 U.S.C. 552 number (b)(1) public inspection of certain classes through (b)(9). of records. (b) Even though a document may Secretary of the Navy Instruction contain information which qualifies for 5720.452, ‘‘Indexing, Public Inspection, withholding under one or more FOIA and Federal Register Publication of exemptions, FOIA requires that all Department of the Navy Directives and ‘‘reasonably segregable’’ information other Documents Affecting the Pub- be provided to the requester, unless the lic,’’ assigns the heads of Department segregated information would have no of the Navy components, Commanders meaning. In other words, redaction is of the Naval Systems Commands, and not required when it would reduce the the Military Sealift Command respon- balance of the text to ‘‘unintelligible sibilities for executing the following gibberish.’’ additional requirements on records (c) The decision to withhold informa- under their respective cognizance: tion in whole or in part based on one or (a) Publication of certain classes of more of the FOIA exemptions requires Department of the Navy organiza- the signature of an Initial Denial Au- tional, regulatory, policy, procedural, thority (IDA). See paragraph (e) of interpretative, and substantive records § 701.5 for a listing of IDAs. (d) The following types of records on a current basis in the FEDERAL REG- may be withheld in whole or in part ISTER, for the guidance of the public. from public disclosure under FOIA, un- (b) Maintenance of current indexes of less otherwise prescribed by law. A dis- various classes of records which are cretionary release to one requester precedential for decisions affecting may preclude the withholding of the members of the public, and publication same records under a FOIA exemption of such indexes at least quarterly or if the record is subsequently requested making them available to the public by by someone else. In applying exemp- other authorized means. tions, the identity of the requester and (c) Making the above records and in- the purpose for which the record is dexes regularly available for public in- sought are irrelevant with the excep- spection and copying at naval loca- tion that an exemption may not be in- tions. voked where the particular interest to be protected is the requester’s interest. Subpart B—FOIA Exemption Guidelines § 701.22 Exemption (b)(1). Those properly and currently classi- SOURCE: 56 FR 66586, Dec. 24, 1991, unless fied in the interest of national defense otherwise noted. or foreign policy, as specifically au- thorized under criteria established by EDITORIAL NOTE: At 56 FR 66586, 66590, Dec. 24, 1991, §§701.21—701.32 (subparts B and C) Executive Order (i.e., Executive Order were revised. Section 701.31 appears at both 12356) and implemented by regulations. subpart B and subpart C. The Agency will Although material is not classified at publish a correction in the FEDERAL REG- the time of the FOIA request, a classi- ISTER at a later date. fication review may be undertaken to determine whether the information § 701.21 General. should be classified. The procedures in (a) The FOIA is a disclosure statute OPNAVINST 5510.1H, ‘‘Department of whose goal is an informed citizenry. the Navy Information and Personnel Because of this records are considered Security Program Regulation’’ apply. to be releasable unless they contain in- In addition, this exemption shall be in- formation that qualifies for withhold- voked when the following situations ing under one or more of the nine FOIA are apparent: exemptions. The exemptions are identi- (a) The fact of the existence or non- existence of a record would itself re- 2 Copies may be obtained if needed, from veal classified information. In that sit- the Commanding Officer, U.S. Naval Publica- uation, naval activities shall neither tions and Forms Center, 5801 Tabor Avenue, confirm nor deny the existence or non- Philadelphia, PA 19120-5099. existence of the record being requested.
61
VerDate 25
A ‘‘refusal to neither confirm nor Information and Personnel Security deny’’ response must be used consist- Program.’’ ently, not only when a record exists, (b) Material that is not classified at but also when a record does not exist. the time of the FOIA request may un- Otherwise, the pattern of using a ‘‘no dergo a classification review to deter- record’’ response when a record does mine whether the information should not exist, and a ‘‘refusal to neither be classified (ensure strict compliance confirm nor deny’’ when a record does with the provisions of OPNAVINST exist will itself disclose national secu- 5510.1 series regarding classification of rity information. That kind of response information after receipt of a FOIA re- is referred to as a ‘‘Glomar’’ denial. quest). (b) Information that concerns one or (c) Executive Order 12356 provides more of the classification categories that ‘‘information shall be classified as established by Executive order and long as required by national security OPNAVINST 5510.1 series, ‘‘Depart- considerations, and time frame no ment of the Navy Information and Per- longer triggers automatic declassifica- sonnel Security Program Regulation,’’ tion.’’ shall be classified if its unauthorized (d) If the original classifier of a disclosure, either by itself or in the record receives a request for the record context of other information, reason- and upon review determines that there ably could be expected to cause damage is no basis for continued classification, to the national security. either in whole or part, the record or portions of it should be declassified. § 701.23 Procedures for processing The document also undergoes another classified documents. review to determine whether any other (a) The threshold for claiming ex- FOIA exemptions apply to the declas- emption (b)(1) is that the document is sified information. properly and currently classified. Be- (e) In some instances, the compila- cause of that, naval activities should tion of unclassified information may normally refer requests for classified result in the classification of the documents to the activity that origi- record as a whole. This is called the nally classified the information. If the ‘‘mosaic’’ approach—the concept that referring activity has an interest in the apparently harmless pieces of informa- matter, they should also provide the tion, when assembled together could receiving activity with a release deter- reveal a damaging picture. mination. The receiving activity will then conduct a declassification review § 701.24 Exemption (b)(2). and apprise the requester of their de- Those related solely to the internal termination, i.e., documents are prop- personnel rules and practices of an erly and currently classified and there- agency. This exemption has two pro- fore must be denied; portions of the files, high (b)(2) and low (b)(2). documents are releasable; etc. Only an (a) Records qualifying under high official authorized under § 701.5 to deny (b)(2) are those containing or constitut- requests and who has cognizance over ing statutes, rules, orders, manuals, di- the classified matters in the records, rectives, and instructions the release of may deny records. Such denial must be which would allow circumvention of based on an approved security classi- the records thereby substantially hin- fication guide issued under dering the effective performance of a OPNAVINST 5510.1 series or significant function of the Department OPNAVINST 5513 series; resource docu- of the Navy. Examples include: ment originated by another naval ac- (1) Those operating rules, guidelines, tivity or government agency; an origi- and manuals for Department of the nal classification determination with Navy investigators, inspectors, audi- written justification for classification, tors, or examiners that must remain and the justification remains valid; or, privileged in order for the naval activ- not readily identifiable, but classifica- ity to fulfill a legal requirement. tion is believed warranted because of (2) Personnel and other administra- classification criteria in OPNAVINST tive matters, such as examination 5510.1 series, ‘‘Department of the Navy questions and answers used in training
62
VerDate 25
courses or in the determination of the (d) Civil Service Reform Act—Rep- qualifications of candidates for em- resentation Rights and Duties, Labor ployment, entrance on duty, advance- Unions, 5 U.S.C. 7114(b)(4). ment, or promotion. (e) Authority to Withhold Unclassi- (3) Computer software, the release of fied Special Nuclear Weapons Informa- which would allow circumvention of a tion, 10 U.S.C. 128. This statute pro- statute or Department of the Navy hibits the unauthorized dissemination rules, regulations, orders, manuals, di- of unclassified information pertaining rectives, or instructions. In this situa- to security measures, including secu- tion, the use of the software must be rity plans, procedures, and equipment closely examined to ensure the possi- for the physical protection of special bility of circumvention exists. nuclear material. (4) Security classification guides. (f) Authority to Withhold Unclassi- fied Technical Data with Military or (b) Records qualifying under the low Space Application, 10 U.S.C. 130. (b)(2) profile are those that are trivial (g) Action on Reports of Selection and housekeeping in nature for which Boards, 10 U.S.C. 618. there is no legitimate public interest (h) Confidentiality of Medical Qual- or benefit to be gained by release, and ity Records: Qualified Immunity Par- it would constitute an administrative ticipants, 10 U.S.C. 1102. burden to process the request in order (i) Confidentiality of Financial to disclose the records. Examples in- Records, 12 U.S.C. 3403. clude, rules of personnel’s use of park- (j) Communication Intelligence, 18 ing facilities or regulation of lunch U.S.C. 798. hours, statements of policy as to sick (k) Confidential Status of Patent Ap- leave, and trivial administrative data plications, 35 U.S.C. 122. such as file numbers, mail routing (l) Secrecy of Certain Inventions and stamps, initials, data processing nota- Withholding of Patents (specific appli- tions, brief references to previous com- cable section(s) must be involved, 35 munication, and other like administra- U.S.C. 181 through 188. tive markings. (m) Confidentiality of Inventions In- formation, 35 U.S.C. 205. § 701.25 Exemption (b)(3). (n) Procurement Integrity, 41 U.S.C. Those concerning matters that a 423. statute specifically exempts from dis- (o) Confidentiality of Patient closure by terms that permit no discre- Records, 42 U.S.C. 290dd–2. tion on the issue, or under criteria es- (p) Information regarding Atomic En- tablished by that statute for withhold- ergy: Restricted and Formerly Re- ing or referring to particular types of stricted Data (Atomic Energy Act of matters to be withheld. Authorization 1954), specific applicable exemptions or requirement may be found in the must be invoked (e.g., 42 U.S.C. 2161 statute itself or in Executive orders or through 2168). regulations authorized by, or in imple- (q) Protection of Intelligence Sources mentation of a statute. Examples in- and Methods, 50 U.S.C. 403(d)(3). clude: (r) Protection of identities of US un- (a) National Security Agency Infor- dercover intelligence officers, agents, mation Exemption, Pub. L. 86-36, Sec- informants and sources, 50 U.S.C. 421. tion 6. (s) Examples of statutes which DO (b) Confidentiality of identity of em- NOT qualify under exemption (b)(3) in- ployee who complains to the IG (5 clude: 5 U.S.C. 552a, Privacy Act; 17 U.S.C. App., Inspector General Act of U.S.C. 101 et seq., Copyright Act; 18 1978, section 7). U.S.C. 793, Gathering, Transmitting or (c) Ethics in Government Act of Losing Defense Information to Aid For- 1978—Protecting Financial Disclosure eign Governments; 18 U.S.C. 1905, Trade Reports of Special Government Em- Secrets Act; and 28 U.S.C. 1498, Patent ployees (5 U.S.C. App., Ethics in Gov- and Copyright Cases. ernment Act of 1978, section 207(a) (1) [56 FR 66574, Dec. 24, 1991, as amended at 59 and (2)). FR 29722, June 9, 1994]
63
VerDate 25
§ 701.26 Exemption (b)(4). data under 10 U.S.C. 2320-2321 and DOD Those containing trade secrets or Federal Acquisition Regulation Sup- commercial or financial information plement (DFARS), subpart 27.4. Tech- that a naval activity receives from a nical data developed exclusively with person or organization outside the Gov- federal funds may be withheld under ernment with the understanding that exemption (b)(3) if it meets the criteria the information or record will be re- of 10 U.S.C. 130. tained on a privileged or confidential (g) Computer software which is copy- basis. Records within the exemption righted under the Copyright Act of 1976 must contain trade secrets, or commer- (17 U.S.C. 106), the disclosure of which cial or financial records, the disclosure would have an adverse impact on the of which is likely to cause substantial potential market value of a copy- harm to the competitive position of the righted work. source providing the information, im- Note: The status of unit prices in pair the government’s ability to obtain awarded in government contracts, once necessary information in the future, or a controversial issue, has become more impair some other legitimate govern- settled with recent court decisions. ment interest. Examples include: The courts have held that disclosure of (a) Commercial or financial informa- unit prices would not directly reveal tion received in confidence in connec- tion with loans, bids, contracts, or pro- confidential proprietary information, posals, as well as other information re- such as a company’s overhead, profit ceived in confidence or privileged such rates, or multiplier, and that the possi- as trade secrets, inventions and discov- bility of competitive harm was thus eries, or other proprietary data. too speculative. (b) Statistical data and commercial or financial information concerning § 701.27 Exemption (b)(5). contract performance, income, profits, Those records containing internal ad- losses, and expenditures, if offered and vice, recommendations, and subjective received in confidence from a contrac- evaluations, as contrasted with factual tor or potential contractor. matters, that are reflected in records (c) Personal statements given in the pertaining to the decision-making course of inspections, investigations, process of an agency, whether between or audits, when such statements are re- agencies or between Department of De- ceived in confidence from the individ- fense and Department of the Navy com- ual and retained in confidence because ponents, except as provided in § 701.27 they reveal trade secrets or commer- number (b) through (e). Also exempted cial or financial information normally are records pertaining to the attorney- considered confidential or privileged. client privilege and the attorney work- (d) Financial data provided in con- product privilege. fidence by private employers in con- (a) Examples include: nection with local wage surveys used to fix and adjust pay schedules applica- (1) Nonfactual portions of staff pa- ble to the prevailing wage rate for em- pers, to include after-action reports ployees within the Department of the and situation reports containing staff Navy. evaluations, advice, opinions, or sug- (e) Scientific and manufacturing gestions. processes or developments concerning (2) Advice, suggestions, or evalua- technical or scientific data or other in- tions prepared on behalf of Department formation submitted with an applica- of the Navy individual consultants or tion for a research grant, or with a re- by boards, committees, councils, port while research is in progress. groups, panels, conferences, commis- (f) Technical or scientific data devel- sions, task forces, or other similar oped by a contractor or subcontractor groups formed for the purpose of ob- exclusively at private expense, or de- taining advice and recommendations. veloped in part with federal funds and (3) Nonfactual portions of evalua- in part at private expense, where the tions by Department of the Navy per- contractor or subcontractor retains a sonnel of contractors and their prod- legitimate proprietary interest in the ucts.
64
VerDate 25
(4) Information of a speculative, ten- the discovery process by special order tative, or evaluative nature on pro- of the court based on the needs of a posed plans to procure, lease, or other- litigant balanced against the interests wise acquire and dispose of materials, of the Department of the Navy in real estate, facilities, or functions, maintaining its confidentiality, the when such information would provide record or document need not be made undue or unfair competitive advantage available under this instruction. Con- to private personal interests or would sult with legal counsel to determine impede legitimate government func- whether exemption (b)(5) material tions. would be routinely made available (5) Trade secret or other confidential through the discovery process. research development, or commercial (c) Intra- or interagency memoranda information owned by the Government, or letters that are factual, or those where premature release is likely to af- reasonably segregable portions that are fect the Government’s negotiating po- factual, are routinely available sition or other commercial interests. through ‘‘discovery’’ and shall be made (6) Records that are exchanged available to a requester, unless the fac- among agency personnel and between tual material is otherwise exempt from Department of the Navy, Department release, inextricably intertwined with of Defense, or other agencies in prepa- the exempt information, so fragmented ration for anticipated administrative as to be uninformative, or so redundant proceeding by an agency or litigation of information already available to the before any federal, state, or military requester as to provide no new sub- court, as well as records that qualify stantive information. for the attorney-client privilege. (d) A direction or order from a supe- (7) Portions of official reports of in- rior to a subordinate contained in in- spection, reports of the Inspector Gen- ternal communication cannot be with- erals, audits, investigations, or surveys held from a requester if it constitutes pertaining to safety, security, of the policy guidance or a decision, as distin- internal management, administration, guished from a discussion of prelimi- or operation of one or more naval ac- nary matters or a request for informa- tivities, when these records have tradi- tion or advice that would compromise tionally been treated by courts as priv- the decision-making process. ileged against disclosure in litigation. (e) An internal communication on a (8) Computer software meeting the decision subsequently made a matter of standards of § 701.3(b)(3) which is delib- public record must be made available erative in nature, the disclosure of to a requester when the rationale for which would inhibit or chill the deci- the decision is expressly adopted or in- sion making process. In that situation, corporated by reference in the record the use of software must be closely ex- containing the decision. amined to ensure its deliberative na- ture. § 701.28 Exemption (b)(6). (9) Planning, programming, and budgetary information which is in- Information in personnel and medical volved in the defense planning and re- files, and similar files, that if disclosed source allocation process. to the requester would result in a (b) If any such intra- or interagency clearly unwarranted invasion of per- record or reasonably segregable portion sonal privacy. Release of information of such record would be made available about an individual contained in a Pri- routinely through the ‘‘discovery proc- vacy Act (PA) system of records that ess’’ (the legal process by which liti- would constitute a clearly unwarranted gants obtain information from each invasion of privacy is prohibited, and other relevant to the issues in a trial could subject the releaser to civil and or hearing) in the course of litigation criminal penalties. with Department of the Navy, such (a) Examples of files other than per- record, should not be withheld even sonnel and medical files containing though discovery has not been sought similar personal information include: in actual litigation. If, the information (1) Those compiled to evaluate or ad- could only be made available through judicate the suitability of candidates
65
VerDate 25
for civilian employment or member- them or their designated legal rep- ship in the Armed Forces, and the eli- resentative only to the extent consist- gibility of individuals (civilian, mili- ent with PA. tary, or contractor employees) for se- (e) When determining whether a re- curity clearances, or for access to par- lease is ‘‘clearly unwarranted,’’ the ticularly sensitive classified informa- public interest in release must be bal- tion. anced against the sensitivity of the pri- (2) Files containing reports, records, vacy interest threatened. For example, and other material pertaining to per- lists of names and duty addresses of sonnel matters in which administrative Department of the Navy personnel (ci- action, including disciplinary action, vilian and military) assigned to units may be taken. that are sensitive, routinely (b) Home addresses are normally not deployable, or stationed in foreign ter- releasable without the consent of the ritories must be withheld because re- individuals concerned. In addition, lists lease could aid in the targeting of De- of Department of the Navy military partment of the Navy employees and and civilian personnel’s names and their families by terrorists. See para- duty addresses who are assigned to graph (p) of § 701.8 regarding requests units that are sensitive, routinely for mailing lists. deployable, or stationed in foreign ter- (f) When withholding information ritories can constitute a clearly unwar- solely to protect the personal privacy ranted invasion of personal privacy. of the subject of the record, informa- (1) Privacy interest. A privacy inter- tion should not be withheld from that est may exist in personal information individual or from his or her des- even though the information has been ignated representative. The personal disclosed at some place and time. If privacy of others discussed in that personal information is not freely record may constitute a basis for delet- available from sources other than the ing reasonably segregable portions of Federal Government, a privacy interest the record even when providing it to exists in its nondisclosure. The fact the subject of the record. This exemp- that the Federal Government expended tion shall not be exercised in an at- funds to prepare, index and maintain tempt to protect the privacy of a de- records on personal information, and ceased person but may be used to pro- the fact that a requester invokes FOIA tect the privacy of the deceased per- to obtain these records indicates the son’s family. information is not freely available. (2) Published telephone directories, (g) Individual’s personnel, medical, organizational charts, rosters and simi- or similar file may be withheld from lar materials for personnel assigned to them or their designated legal rep- units that are sensitive, routinely resentative only as consistent with deployable, or stationed in foreign ter- SECNAVINST 5211.5C, ‘‘Personal Pri- ritories are withholdable under exemp- vacy and Rights of Individuals Regard- tion (b)(6). ing Records Pertaining to Them- (c) This exemption is relevant to a selves.’’ request for information that is inti- (h) A clearly unwarranted invasion of mate to an individual or that possibly the privacy of the persons identified in could have adverse effects upon that a personnel, medical, or similar record individual or his or her family if dis- may constitute a basis for deleting closed. Subpart F of this Part 701 lists those reasonably segregable portions of several examples of non-derogatory in- that record, even when providing it to formation about the official character the subject of the record. When with- of a naval member or employee that holding personal information from the can routinely be disclosed to a member subject of the record, legal counsel of the public without constituting a should first be consulted. clearly unwarranted invasion of per- sonal privacy of the individual con- § 701.29 Exemption (b)(7). cerned. Records or information compiled for (d) Individuals’ personnel, medical, law enforcement purposes, (i.e., civil, or similar files may be withheld from criminal, or military law, including
66
VerDate 25
the implementation of Executive or- enforcement authority in a criminal ders or regulations issued pursuant to investigation or by an agency conduct- law). This exemption may be invoked ing a lawful national security intel- to prevent disclosure of documents not ligence investigation (5 U.S.C. 552 originally created for, but later gath- (b)(7)(D)); ered for law enforcement purposes. (5) Would disclose techniques and (a) This exemption applies, however, procedures for law enforcement inves- only to the extent that production of tigations or prosecutions, or would dis- such law enforcement records or infor- close guidelines for law enforcement mation: investigations or prosecutions, if such (1) Could reasonably be expected to disclosure could reasonably be ex- interfere with enforcement proceedings pected to risk circumvention of the law (5 U.S.C. 552(b)(7)(A)); (5 U.S.C. 552(b)(7)(E)); or, (2) Would deprive a person of the (6) Could reasonably be expected to right to a fair trial or an impartial ad- judication (5 U.S.C. 552(b)(7)(B)); endanger the life or physical safety of (3) Could reasonably be expected to any individual (5 U.S.C. 552(b)(7)(F)). constitute an unwarranted invasion of (b) Examples include: personal privacy of a living person, in- (1) Statements of witnesses and other cluding surviving family members of material developed during the course an individual identified in such a of the investigation and all materials record (5 U.S.C. 552(b)(7)(C)); prepared in connection with related (i) This exemption also applies when government litigation or adjudicative the fact of the existence or nonexist- proceedings. ence of a responsive record would itself (2) The identity of firms or individ- reveal personally private information, uals investigated for alleged irregular- and the public interest in disclosure is ities involving contracting with De- not sufficient to outweigh the privacy partment of Defense or Department of interest. In this situation, naval activi- the Navy when no indictment has been ties shall neither confirm nor deny the obtained nor any civil action filed existence or non-existence of the against them by the United States. record being requested. (3) Information obtained in con- (ii) A refusal to ‘‘neither confirm nor fidence, expressed or implied, in the deny’’ response must be used consist- course of a criminal investigation by a ently, not only when a record exists, criminal law enforcement agency or of- but also when a record does not exist. fice within Department of Defense, or a Otherwise, the pattern of using a ‘‘no lawful national security intelligence records’’ response when a record does investigation conducted by an author- not exist and a ‘‘refusal to neither con- ized agency or office within Depart- firm nor deny’’ when a record does ment of Defense. National security in- exist will itself disclose personally pri- telligence investigations include back- vate information. ground security investigations con- (iii) Refusal to ‘‘neither confirm nor ducted for the purpose of obtaining af- deny’’ should not be used when the per- firmative or counterintelligence infor- son whose personal privacy is in jeop- mation. ardy has provided the requester with a waiver of his or her privacy rights; or, (c) The right of individual litigants the person whose personal privacy is in to investigate records currently avail- jeopardy is deceased, and the agency is able by law. aware of that fact. (d) When the subject of an investiga- (4) could reasonably be expected to tive record is the requester of the disclose the identity of a confidential record, it may be withheld only as au- source, including a source within the thorized by SECNAVINST 5211.5C, DON, a state, local, or foreign agency ‘‘Personal Privacy and Rights of Indi- or authority, or any private institution viduals Regarding Records Pertaining which furnishes information on a con- to Themselves.’’ fidential basis; could disclose informa- (e) Exclusions. Excluded from this ex- tion furnished from a confidential emption are the following two situa- source and obtained by a criminal law tions:
67
VerDate 25
(1) Whenever a request is made which § 701.31 Addresses for requests for De- involves access to records or informa- partment of the Navy records. tion complied for law enforcement pur- The following addresses delineate the poses, and the investigation or proceed- location of commonly requested infor- ing involves a possible violation of mation. Members of the public are en- criminal law where there is reason to couraged to write directly to the offi- believe that the subject of the inves- cial having cognizance over the tigation or proceeding is unaware of its record(s), as it will expedite processing. pendency, and the disclosure of the ex- When the official having custody of the istence of the records could reasonably record is not known, the request should be expected to interfere with enforce- be addressed to the originating official ment proceedings, naval activities or the official having primary respon- may, during only such times as those sibility for the subject matter in- circumstances continue, treat the volved. The following are the most records or information as not subject commonly requested types of records: to exemption 7. In such situation, the response to the requester will state no (a) Audit reports. Send requests for in- records were found. ternal audit matters to the Auditor General of the Navy, P.O. Box 1206, (2) Whenever informant records Falls Church, VA 22041-0206. maintained by a criminal law enforce- ment organization within DON under (b) Chaplain Corps. Send requests for the informant’s name or personal iden- religious affairs matters to the Chief of tifier, the naval activity may treat the Chaplains, Navy Department, Washing- records as not subject to exemption 7, ton, DC 20370-2000. unless the informant’s status as an in- (c) Civilian personnel records. (1) Send formant has been officially confirmed. requests for personnel records of cur- If it is determined that the records are rent civilian employees, or those sepa- not subject to exemption 7, the re- rated from Federal employment less sponse to the requester will state no than 30 days, to the employing instal- records were found. lation marked for the attention of the civilian personnel officer. § 701.30 Exemption (b)(8). (2) Send requests for individuals for- Exempts those records contained in merly employed by the Department of or related to examination, operation, the Navy, or separated from Federal or condition reports prepared by, on be- employment for more than 30 days, to half of, or for the use of an agency re- the Director, National Personnel sponsible for the regulation or super- Records Center, (Civilian Personnel vision of financial institutions. Records), 111 Winnebago Street, St. Louis, MO 63118. § 701.31 Exemption (b)(9). (d) Contractual/procurement records and related matters. (1) Send requests Exempts those records containing ge- for copies of Navy procurement direc- ological and geophysical information tives and Defense Federal Acquisition and data, including maps, concerning Regulations (DFARs) to the Super- wells. intendent of Documents, U.S. Govern- ment Printing Office, Washington, DC Subpart C—Addresses for Depart- 20402. ment of the Navy Records (2) Send requests for copies of current and Locations for Public In- contracts to the contracting officer or spection head of the procurement activity when known. If unknown, submit requests SOURCE: 56 FR 66590, Dec. 24, 1991, unless for Navy contracts to the Chief of otherwise noted. Naval Operations (N09B30), 2000 Navy Pentagon, Washington, DC 20350–2000, EDITORIAL NOTE: At 56 FR 66586, 66590, Dec. and Marine Corps contracts to the Dep- 24, 1991, §§701.21—701.32 (subparts B and C) were revised. Section 701.31 appears at both uty Chief of Staff for Installations and subpart B and subpart C. The Agency will Logistics, Headquarters U.S. Marine publish a correction in the FEDERAL REG- Corps, 2 Navy Annex, Washington, DC ISTER at a later date. 20380–0001.
68
VerDate 25
(e) Courts-martial records. (1) Send re- those in the Defense Federal Acquisi- quests for records of trial by general tion Regulations (DFARs), and Navy courts-martial, or special courts-mar- procurement directives; and, industrial tial which resulted in a bad conduct security claims and litigation should discharge, or involving commissioned be directed to the Office of Counsel of officers to the Judge Advocate General, the concerned activity. If unknown, Code 20, 200 Stovall Street, Alexandria, submit to the General Counsel of the VA 22332-2400. Navy, 2211 Jefferson Davis Highway, (2) Send requests for records of trial Arlington, VA 22344–5103. by summary courts-martial or special (2) Judge Advocate General legal courts-martial not involving a bad con- matters. In addition to military law, duct discharge to the officer having su- all matters except those outside the ju- pervisory authority in the review proc- risdiction of the General Counsel ess. should be directed to the Judge Advo- (f) Naval Inspector General Reports. cate General, 200 Stovall Street, Alex- Send requests for Navy hotline com- andria, VA 22332-2400. plaints and all other investigations and (i) Medical records. (1) Send requests inspections conducted by the for inpatient medical treatment NAVINSGEN to the Naval Inspector records of active duty Navy and Marine General, Building 200, room 100, 901 M Corps personnel and their dependents Street SE., Washington, DC 20374–5006. to the medical treatment facility Send requests for local command In- where the patient is or was treated. spector General reports to the local IG The records are held for two years and office. then retired to the National Personnel (g) Investigative records. (1) Send re- Records Center, 9700 Page Avenue, St. quests for NCIS investigatory records Louis, MO 63132-5100. and related matters to the Director, (2) Send requests for outpatient med- Naval Criminal Investigative Service, ical treatment records of active duty Washington Navy Yard, Building 111, Navy and Marine Corps personnel and 901 M Street SE., Washington, DC their dependents to the military treat- 20388–5380. ment facility attached to the command (2) Send requests for JAG Manual in- at which they are assigned. vestigative reports to the Judge Advo- (3) Send requests for outpatient med- cate General (Code 33), Navy Depart- ical records of Navy personnel sepa- ment, 200 Stovall Street, Alexandria, rated (discharged, retired, or deceased) VA 22332-2400. for less than 4 months to the Com- (3) Send requests for mishap inves- manding Officer, Naval Reserve Per- tigative reports to Commander, Naval sonnel Center, New Orleans, LA 70149- Safety Center, 375 A Street, Norfolk, 7800. After four months, send requests VA 23511–4399. to Director, National Personnel (h) Legal matters. (1) General Counsel Records Center, (Military Personnel legal matters. Those relating to the ac- Records), 9700 Page Avenue, St. Louis, quisition, custody, management, trans- MO 63132-5100. Send requests for de- portation, taxation, and disposition of pendents’ outpatient records to the real and personal property, and the last medical facility where treatment procurement of services, including the was provided if within 2 years of spon- fiscal, budgetary, and accounting as- sor’s release/separation from the serv- pects thereof, excepting, however, tort ice. After the 2 years, send requests to claims and admiralty claims arising Director, National Personnel Records independently of contract, and matters Center, (Military Personnel Records), relating to the naval petroleum re- 9700 Page Avenue, St. Louis, MO 63132- serves; operations of the Military Sea- 5100. lift Command, excepting tort and ad- (4) Send requests for outpatient med- miralty claims arising independently ical records of Marine Corps personnel of contract; the Office of the Comptrol- separated (discharged, retired, or de- ler of the Navy; procurement matters ceased) for less than four months to Di- in the field of patents, inventions, rector, Marine Corps Reserve Support trademarks, copyrights, royalty pay- Center, 10950 El Monte Street, Overland ments, and similar matters, including Park, KS 66211-1408. After four months,
69
VerDate 25
send requests to Director, National (4) Send requests for records of drill- Personnel Records Center, (Military ing reservists to the member’s servic- Personnel Records), 9700 Page Avenue, ing personnel support unit. St. Louis, MO 63132-5100. Requests for (5) Send requests for records of inac- dependents’ outpatient records should tive duty reservists who still have an be addressed to the last medical facil- obligation to the Navy to the Com- ity where treatment was provided if manding Officer, Naval Reserve Per- within 2 years of active duty member’s sonnel Center, New Orleans, LA 70149- release/separation from the service. 7800. After two years, send requests to Di- (6) Send requests for records of sepa- rector, National Personnel Records rated reservists who have not retired Center, (Military Records Center), 9700 to the Director, National Personnel Page Avenue, St. Louis, MO 63132-5100. Records Center, (Military Personnel (5) When the location of a military Records), 9700 Page Avenue, St. Louis, member or dependent’s medical record MO 63132-5100. is not known, send requests to Chief, (7) Send requests for records of re- Bureau of Medicine and Surgery, 2300 E tired reservists to the Commanding Of- Street, NW., Washington, DC 20372–5120. ficer, Naval Reserve Personnel Center, (6) Send requests for medical records New Orleans, LA 70149-7800. of drilling reservists to the reserve cen- (k) Publications. (1) Send requests for ters where they are assigned. unclassified instructions, other than Secretary of the Navy Instructions, (7) Send requests for medical records issued under the Department of the of inactive or retired reservists to Navy’s directives issuance system and Commanding Officer, Naval Reserve subject index thereof (NAVPUBINST Personnel Center, New Orleans, LA 5215.1B) to the Aviation Supply Office, 70149-7800. Naval Publications and Forms Direc- (8) Civilian employee medical records. torate, Customer Service, Code 1013, Send requests to the medical facility 5801 Tabor Avenue, Philadelphia, PA where the person is/was treated. After 2 19120–5099. years, send requests to Director, Na- (2) Send requests for all tional Personnel Records Center, (Ci- SECNAVINSTs and OPNAVINSTs vilian Personnel Records), 111 Winne- marked FOUO or classified to the CNO bago Street, St. Louis, MO 63118. (N09B30), 2000 Navy Pentagon, Wash- (j) Military personnel records. (1) Send ington, DC 20350–2000. requests for records of active duty (3) Send requests for Marine Corps di- Navy personnel, or those separated rectives, publications, and manuals to (discharged, retired or deceased for up Commandant of the Marine Corps, to 1 year) to Chief of Naval Personnel, (Code AR), HQ USMC, 2 Navy Annex, 2 Navy Annex, Washington, DC 20370– Washington, DC 20380–0001. 5001 and for Marine Corps personnel to (4) Send requests for military speci- Commandant of the Marine Corps, fications, standards, and handbooks to (Code MM), Navy Department, Wash- the Commanding Officer, Defense ington, DC 20380-0001. Printing Service Detachment Office, (2) Send requests for records of Navy Customer Service, Building 4D, 700 and Marine Corps personnel separated Robbins Avenue, Philadelphia, PA (discharged, retired or deceased) for 19111–5094. more than 1 year and inactive reserv- (l) Research records. Send requests for ists to Director, National Personnel records regarding basic research and Records Center, (Military Personnel grants to the activity having custody Records), 9700 Page Avenue, St. Louis, of the record. If unknown, send to the MO 63132-5100. Chief of Naval Research, 800 North (3) Send requests for former officer Quincy Street, Arlington, VA 22217- personnel separated prior to 1902 and 5660. former enlisted personnel separated (m) Systems commands—(1) Aeronauti- prior to 1885 to Chief, Military Ref- cal weapon systems. Send requests for erence Branch, Military Archives Divi- information on aeronautical weapon sion, National Archives, Washington, systems, associated sub-systems and DC 20408. related systems and equipment to the
70
VerDate 25
Commander, 1421 Jefferson Davis High- Technical Information Service, 5285 way, Arlington, VA 22243–5120. Port Royal Road, Springfield, VA 20402. (2) Facilities. Send requests for infor- (q) Unknown. If requesters are unable mation on facilities and land manage- to determine the official having cog- ment (design, construction, and main- nizance over the requested records, tenance; utilities; housing; and real es- they should send their request for tate matters) to the Commander, Naval naval matters to the Chief of Naval Op- Facilities Engineering Command, 200 erations (N09B30), 2000 Navy Pentagon, Stovall Street, Alexandria, VA 22332- Washington, DC 20350–2000, and Marine 2300. Corps matters to Commandant of the (3) Ships. Send requests for informa- Marine Corps (Code ARAD), HQ USMC, tion on ships and ordnance materials 2 Navy Annex, Washington, DC 20380– to the Commander, Naval Sea Systems 0001. Command, 2531 Jefferson Davis High- [56 FR 66574, Dec. 24, 1991, as amended at 59 way, Arlington, VA 22242–5160. FR 29722 June 9, 1994] (4) Space and Naval Warfare. Send re- quests for information on development § 701.32 Locations at which Depart- technologies regarding battle force ar- ment of the Navy records are avail- chitecture and engineering, space com- able for public inspection. munications, navigation, undersea and (a) Navy Department Library. The ocean surveillance, oceanographic mat- Navy Department Library is located at ters, anti-submarine warfare, informa- the Washington Navy Yard, Building tion transfer systems, and information 44, 9th and M Streets, SE, Washington, management systems to the Com- DC 20374-0571. mander, Space and Naval Warfare Sys- (1) Hours of Operation. 9 a.m. to 4 tems Command, 2451 Crystal Drive, Ar- p.m., Monday through Friday, except lington, VA 22245–5200. holidays. (5) Supply. Send requests for informa- (2) Type of Materials Held. The library tion on naval supply matters to the has 130,000 volumes of information of Commander, Naval Supply Systems interest to the Navy, such as naval and Command, 1931 Jefferson Davis High- general history, international law and way, Arlington, VA 22341–5360, and for diplomacy, naval architecture and Marine Corps supply matters to the shipbuilding, naval customs and tradi- Commandant of the Marine Corps, HQ tions, naval shore stations, yards and USMC, 2 Navy Annex, Washington, DC bases, uniforms, insignia, awards and 20380–0001. flags, geography, travel and guide (n) Ships decklogs. Send requests for books, aviation, Navy music, etc. Also ships decklogs originating after 30 contained are approximately 5,000 rare June 1945 to the Director, Naval Histor- book collections. Additionally, the li- ical Center, Ships’ Histories Branch, brary has an index by subject matter of 901 M Street SE., Washington Navy materials held, i.e., NAVPUBINST Yard, Washington, DC 20374–0571. Those 5215.1B, Consolidated Subject Index, a originated prior to 1945 are held by the quarterly publication which lists in- Chief, Military Reference Branch, Mili- structions originated by Washington tary Archives Division, National Ar- Headquarters organizations and Marine chives, Washington, DC 20408. Corps directives system checklist of di- (o) Supply catalogs. Send requests for rectives distributed outside Head- Navy and Federal supply catalogs, quarters, U.S. Marine Corps. The li- master cross-reference indexes, and re- brary is equipped with desks and study lated cataloging publications (catalog- carrels for library users and has spe- ing handbooks such as H2-1 and H2-3 cialized devices to facilitate research, and Federal manuals for supply cata- such as microfilm reader/printers, copy loging, such as M1-1, -2 and -3) to Su- machines, and outlets for tape record- perintendent of Documents, United ers. States Government Printing Office, (b) Defense Reading Room. The De- Washington, DC 20402-9325. fense Reading Room is located in Room (p) Technical reports. Send requests 2E165 of the Pentagon, Washington, DC for unclassified technical reports or 20310-1400. Due to building security, publications to the Director, National upon arrival at the Pentagon, call 695-
71
VerDate 25
3973 to arrange for an escort to the Congress with an indepth look at the Reading Room. costs and time the Navy is expending (1) Hours of Operation. 8 a.m. to 4 to process FOIA requests. p.m., Monday through Friday, except (c) Scope. (1) The guidelines set forth holidays. below are not intended to imply that (2) Type of Materials Held. Microfiche fees must be charged for providing in- copies of indexes and decisional docu- formation to the public in the routine ments regarding Navy Discharge Re- course of business, nor are they meant view Board and Board for Correction of as a substitute for any other schedule Naval Records proceedings. of fees, such as those in (c) Law Library of the Judge Advocate NAVCOMPTMAN, Vol. 3, CH-339, which General. The law library is located at does not supersede the collection of the Hoffman Building 2, Room 9S47, 200 fees under FOIA. Stovall Street, Alexandria, VA 22332- (2) Subpart D of this part does not su- 2400. persede fees chargeable under a statute (1) Hours of Operation. 9 a.m. to 4 specifically setting the level of fees for p.m., Monday through Friday, except holidays. particular types of records. A ‘‘statute (2) Type of Materials Held. The library specifically providing for setting the has published and unpublished deci- level of fees for particular types of sions of the Navy-Marine Corps Court records’’ means any statute that en- of Military Review, Navy and Marine ables a government agency, such as the Corps directives, miscellaneous super- Government Printing Office (GPO) or seded manuals, and courts-martial or- the National Technical Information ders and the Navy Department Bul- Service (NTIS), to set and collect fees. letin. Naval activities should ensure that when documents that would be respon- Subpart D—Fee Guidelines sive to a request are maintained for distribution by agencies operating statutory based fee schedule programs SOURCE: 56 FR 66592, Dec. 24, 1991, unless such as GPO or NTIS, inform request- otherwise noted. ers of the steps necessary to obtain § 701.40 FOIA fees. records from those sources. (a) Background. The FOIA Reform (c) Resolution of fees. The issue of fees Act of 1986 brought about significant should be resolved prior to a naval ac- changes on how FOIA fees are assessed. tivity expending resources to process a Subpart D of this part highlights in de- FOIA request. Specifically, a requester tail the changes made and conforms should have an opportunity to decide with the Office of Management and whether or not to pursue a request if Budget (OMB) Uniform Fee Schedule fees are applicable and the requester and Guidelines which were issued as a has failed to agree to pay those fees. result of the Reform Act. OMB guide- There have been instances where naval lines for fees reflect direct costs for activities have worked a costly request search, review (in the case of commer- only to be told by the requester that it cial requesters), and duplication of doc- is no longer needed, since it will result uments, collection of which are per- in a cost. Additionally, if a requester mitted by FOIA. has agreed to pay fees up to a specified (b) DD Forms 2086/2086-1. Naval activi- amount and the costs of processing the ties are encouraged to utilize DD request will exceed those fees, naval Forms 2086/2086-1 to track costs for activities must resolve the issue of ad- each FOIA request processed, unless a ditional fees prior to continuing with standard processing cost can be com- the processing of the request. puted for routine kinds of requests. (d) Responses. Naval activities shall The form is designed to track all costs ensure that final responses to the re- and is utilized to compile fee informa- quester address FOIA fees.
tion for the Annual FOIA Report. EDITORIAL NOTE: At 56 FR 66592, Dec. 24, While not all costs can be charged to 1991, §701.40 was revised. Paragraph (c) was the requester for recoupment, they are inadvertently added twice. The duplicate nonetheless reportable as they provide designations are of differing content. The
72
VerDate 25
Agency will publish a correction in the FED- shall be charged. If a naval activity es- ERAL REGISTER at a later date. timates that assessable duplication charges may exceed $25, it shall notify § 701.41 Definitions. the requester of the estimate, unless The following definitions set forth the requester has indicated in advance the parameters for determining FOIA his or her willingness to pay fees as fees: high as those anticipated. Such notice (a) Direct costs. Direct costs means shall offer the requester the oppor- those expenditures a naval activity ac- tunity to confer with naval personnel tually incurs in searching for, review- to reformulate the request to meet his ing (in the case of commercial request- or her needs at a lower cost. ers), and duplicating documents to re- (d) Review. Review time refers to ex- spond to a FOIA request. Direct costs amining documents responsive to a include, for example, the salary of the FOIA request to determine whether employee performing the work (the employee’s basic rate of pay plus 16 one or more of the statutory exemp- percent of that rate to cover benefits), tions permit withholding. It also in- and the costs of operating duplicating cludes processing the documents for machinery. Not included are overhead disclosure, such as excising them for expenses such as costs of space, heat- release. Review does not include time ing, or lighting the facility where spent resolving general legal or policy records are stored. issues on applying the exemptions. (b) Search time. Search time includes Charges may be assessed only for the all time spent looking for material re- initial review. Naval activities may sponsive to a request and a page-by- not charge for reviews during an ad- page or line-by-line identification (if ministrative appeal of an exemption al- necessary) of material in the document ready applied. Records or portions of to determine if it, or portions thereof, records withheld in full under an ex- are responsive to the request. Naval ac- emption subsequently determined not tivities should ensure that searches are to apply, may be reviewed again to de- efficient and completed in the least ex- termine the applicability of other ex- pensive manner to minimize costs to emptions not previously considered and the naval activity and the requester. the costs for such a subsequent review For example, naval activities should could be assessed. not do a line-by-line search when dupli- (e) Commercial use request. A commer- cating an entire document containing cial use request is a request from or on responsive information would be less behalf of one seeking information for a expensive and quicker to comply with use or purpose that furthers the com- the request. Time spent reviewing doc- mercial, trade, or profit interest of the uments to determine whether to apply requester. In determining whether a re- one or more of the statutory exemp- quester belongs to this category, naval tions is not search time, but review activities must determine the request- time. er’s use of the documents requested. (c) Duplication. Duplication refers to Naval activities should seek additional the process of making a copy of a docu- clarification before assigning the re- ment in response to a FOIA request. Copies can be paper copy, microfiche, quest to a specific category when audiovisual, or machine readable docu- doubting the intended use of the re- mentation (e.g., magnetic tape or disc). quester, or where the use is not clear Every effort will be made to ensure from the request itself. that the copy provided is in a form rea- (f) Educational institution. An edu- sonably usable by requesters. If copies cational institution is a preschool, pub- are not clearly usable, the requester lic or private elementary or secondary will be notified that their copy is the school, institution of graduate higher best available and the agency’s master education, institution of undergradu- copy will be made available for review ate higher education, institution of upon appointment. For duplicating of professional education, and an institu- computer tapes and audiovisuals, the tion of vocational education operating cost, including the operator’s time a program(s) of scholarly research.
73
VerDate 25
(g) Non-commercial scientific institu- charges which recover the full direct tion. A non-commercial scientific insti- costs of searching for, reviewing for re- tution is operated solely for conducting lease, and duplicating the records scientific research the results of which sought. Commercial requesters, are not are not intended to promote any par- entitled to 2 hours of free search time ticular product or industry and not op- and 100 free pages of reproduction of erated on a ‘‘commercial’’ basis. documents. However, fees totaling $15 (h) Representative of the news media. or less must be waived. Commercial re- Representative of the new media is a questers are not normally entitled to a person actively gathering news for an waiver or reduction of fees based upon entity organized and operated to pub- an assertion that disclosure would be lish or broadcast news to the public. in the public interest. Because use of ‘‘News’’ means information about cur- the requested material is the exclusive rent events or of current interest to determining criteria, a commercial en- the public. Examples of news media en- terprise may make a request that is tities include television or radio sta- not for commercial use. It is also pos- tion broadcasting to the public at large sible that a nonprofit organization and publishers of periodicals when could make a request for commercial qualifying as disseminators of ‘‘news’’ use. Such situations must be addressed who make their products available for on a case-by-case basis. purchase or subscription by the general (b) Educational institution requesters. public. Those examples are not all-in- When a request is made by an edu- clusive. As traditional methods of news cational institution whose purpose is delivery evolve (e.g., electronic dis- scholarly research fees shall be limited semination of newspapers through tele- to reasonable standard charges for doc- communications services) alternative ument duplication (excluding charges media would be included in this cat- for the first 100 pages). Requesters egory. ‘‘Free-lance’’ journalists may be must reasonably describe the records considered as working for a news orga- being sought and must show that the nization if they can demonstrate a request is made under the auspices of a basis for expecting publication by that qualifying institution and that the organization, even if not actually em- records are not sought for commercial ployed. Proof may be by publication use, but in furtherance of scholarly re- contract, but naval activities may also search. look to the requester’s past publication (c) Non-commercial scientific institution record in making this determination. requesters. When the request is made by Representatives of the news media do a non-commercial scientific institution not include private libraries, private whose purpose is scientific research repositories of Government records, or fees shall be limited to only reasonable middlemen such as information ven- standard charges for document duplica- dors or data brokers. tion (excluding charges for the first 100 (i) All other requesters. All other re- pages). Requesters must reasonably de- questers refers to persons who do not scribe the records sought and must qualify as an educational institution, show that the request is being made non-commercial scientific institution, under the auspices of a qualifying in- representative of the news media, or stitution and that records are not commercial use requester. An example sought for commercial use, but in fur- is a nonprofit organization. therance of scientific research. (d) Representatives of the news media. § 701.42 Application. (1) When the request is made by a rep- (a) Commercial requesters. When resentative of the news media, fees records are requested for commercial shall be limited to only reasonable use, fees shall be assessed to recover standard charges for document duplica- reasonable standard charges for docu- tion (excluding charges for the first 100 ment search, review, and duplication. pages). Requesters must reasonably de- Requesters must reasonably describe scribe the records sought. the records sought. When naval activi- (2) Representatives of the news media ties review a request for documents for must meet the criteria defined in para- commercial use, they should assess graph (h) of § 701.41, and the request
74
VerDate 25
must not be made for commercial use. lected (i.e., $15), no charges would re- A request for records supporting the sult. news dissemination function of the re- (b) Requesters are entitled to the quester shall not be considered to be a first 2 hours of search and 100 pages of request that is for a commercial use. duplication without charge once per re- For example, a request by a newspaper quest. Consequently, if after complet- for records relating to an investigation ing its portion of a request, a naval ac- of a defendant in a current criminal tivity, refers the request to another trial of public interest could be pre- naval activity to act on their portion sumed to be a request from an entity of the request, the referring naval ac- eligible for inclusion in this category, tivity shall inform the recipient of the and entitled to records at the cost of amount of search time and duplication duplication alone (excluding charges cost to date so the final Navy response for the first 100 pages). will address all fees in the processing of (3) ‘‘Representative of the news the request. For referrals to other fed- media’’ does not include private librar- eral agencies or Department of Defense ies, private repositories of Government components, if the naval costs of proc- records, or middlemen, such as infor- essing the request are chargeable based mation vendors or data brokers. on fee guidelines, the fees should be (e) All other requesters. Naval activi- collected from the requester and the ties shall charge requesters who do not recipient of the referral advised of the fit into any of the above categories fees to recover the full direct cost of search fee status of the request. If the fees are and duplicating records, except the not chargeable based on the fee guide- first 2 hours of search time and the lines, the recipient of the referral first 100 pages of duplication shall be should be advised of the naval fees as- furnished without charge. Requesters sociated with the processing of the re- must reasonably describe the records quest. sought. Requests from subjects about (c) In determining the ‘‘cost of col- themselves will continue to be treated lecting a fee’’ consider administrative under the fee provisions of 5 U.S.C. costs to the naval activity of receiving 552a, which permit fees only for dupli- and recording a remittance, and proc- cation. Naval activities are reminded essing the fee for deposit in the Treas- that this category of requester may be ury Department’s special account. The eligible for a waiver or reduction of Treasury’s cost to handle such remit- fees if disclosure of the information is tance is negligible and shall not be con- in the public interest. sidered in a naval activity’s determina- tion. § 701.43 Fee restrictions. (d) To determine cost, ‘‘pages’’ refers (a) A naval activity may not charge to standard size paper copies normally fees if the costs of routine collection 8 1/2’’ x 11’’ or 11’’ x 14’’. Thus, request- and processing of the fee are likely to ers would not be entitled to 100 micro- equal or exceed the amount of the fee. fiche or 100 computer disks, for exam- Except for requesters seeking docu- ple. A microfiche containing the equiv- ments for a commercial use, naval ac- alent of 100 pages or 100 pages of com- tivities shall provide the first 2 hours puter printouts, meets the restriction. of search time and the first 100 pages of (e) For computer searches, the first 2 duplication without charge. For exam- free hours will be determined by the ple, for a request (other than one from salary scale of the individual doing the a commercial requester) involving 2 computer search. For example, when hours and 10 minutes of search time the direct costs of the computer cen- and 105 pages of documents, a naval ac- tral processing unit, input-output de- tivity would recover the cost of only vices, and memory capacity equal $24 (2 ten minutes of search time and five hours of equivalent search at the cleri- pages of duplication. If this processing cal level), computer costs in excess of cost was equal to or less than the cost to the naval activity for billing the re- that amount are chargeable as com- quester and processing the fee col- puter search time.
75
VerDate 25
§ 701.44 Fee waivers. should analyze the substantive con- (a) When the naval activity deter- tents of a record or portion of the mines that waiver or reduction of fees record to determine whether disclosure is in the public interest, documents is meaningful and will inform the pub- will be furnished without charge or at lic on Department of the Navy’s oper- a reduced charge. It is in the public in- ations or activities. While the subject terest when furnishing the information of a request may contain information is likely to contribute significantly to on operations or activities of the De- public understanding of the operations partment of the Navy, it may not have or activities of the Department of the great potential for contributing to a Navy, and is not primarily in the com- meaningful understanding of these op- mercial interest of the requester. erations or activities. An example (b) Fees shall be waived automati- would be a heavily redacted record, cally for all requesters when direct with only random words, fragmented costs for a FOIA request total $15 or sentences, or paragraph headings. A de- less. termination as to whether that type of (c) Decisions to waive or reduce fees record will contribute to the public un- that exceed the automatic fee waiver derstanding of the operations or activi- threshold shall be made on a case-by- ties of the Department of the Navy case basis when: must be weighed against the request- (1) Disclosure of the information ‘‘is er’s intended use. Another example is in the public interest because it is like- disclosure of information already in ly to contribute significantly to public the public domain or nearly identical understanding of the operations or ac- information may add no meaningful tivities of the government.’’ new information on Department of the (i) Subject of the request. Naval activi- Navy operations and activities. ties should analyze whether the subject (iii) Contribution to the public’s under- matter of the request involves issues standing from disclosure. Disclosure con- which will significantly contribute to tributes to the public’s understanding the public understanding of the oper- ations or activities of the Department when disclosure will inform or have the of the Navy. Requests for records in potential to inform the public, rather the possession of the Department of than the individual requester or small the Navy originated by non-govern- segment of interested persons. The re- ment organizations and sought for quester’s identity determines whether their intrinsic content rather than in- the requester has the capability and in- formative value will not likely contrib- tention to disseminate the information ute to public understanding of the op- to the public. Assertions of plans to erations or activities of the Depart- write a book, research a particular sub- ment of the Navy. Examples of such ject, doctoral desertion work, or records are press clippings, magazine indigency are insufficient. Requester articles, or records forwarding a par- must demonstrate the capacity to dis- ticular opinion or concern from a mem- close the information in a manner in- ber of the public regarding a naval ac- formative to the general public. Re- tivity. Similarly, disclosures of records questers should describe their quali- of considerable age may or may not fications, nature of their research, pur- bear directly on the current activities pose of the requested information, and of the Department of the Navy; how- intended means of dissemination to the ever, the age of a particular record public. shall not be the sole criteria for deter- (iv) The significance of the contribution mining the value of a document. These to public understanding. Naval activities requests must be closely reviewed must assess the significance or impact while considering the requester’s stat- of disclosure against the current level ed purpose for the records and the po- of public knowledge or understanding tential for public understanding of the prior to the disclosure. In other words, operations and activities of the Depart- will disclosure on a current subject of ment of the Navy. wide public interest be unique in con- (ii) Informative value of the informa- tributing previous unknown facts, tion to be disclosed. Naval activities thereby enhancing public knowledge,
76
VerDate 25
or will it basically duplicate what is al- pursuits are primarily undertaken for ready known by the general public. educational purposes, and charging a Naval activities shall not make value fee would be inappropriate. Conversely, judgments whether the information is data brokers or others who compile important enough to be made public. government information for marketing (2) Disclosure of the information ‘‘is can normally be presumed to primarily not primarily in the commercial inter- have a commercial interest. est of the requester.’’ (iii) The above factors and examples are (i) Existence and magnitude of a com- not all inclusive. Each fee decision must mercial interest. If the request is a com- be considered on a case-by-case basis mercial interest, naval activities the merits of the information provided should address the magnitude of that in each request. When the decision to interest to see if the requester’s com- charge, reduce, or waive the fee cannot mercial interest is primary, as opposed be clearly resolved, naval activities to any secondary personal or non-com- should rule in favor of the requester. mercial interest. In addition to profit- (d) The following additional cir- making organizations, individual per- cumstances describe situations where sons or other organizations may have a waiver or reduction of fees are most commercial interest in obtaining cer- likely warranted: tain records. Where it is difficult to de- (1) A record is voluntarily created to termine whether this is a commercial preclude an otherwise burdensome ef- requester, naval activities may infer it fort to provide voluminous amounts of from the requester’s identity and cir- available records, including additional cumstances of the request. The re- information not requested. quester’s commercial benefit must (2) A previous denial of records is re- clearly override any personal or non- versed in total, or in part, and the as- profit interest to apply FOIA commer- sessable costs are not substantial (e.g., cial standards. $15 - $30). (ii) The primary interest in disclosure. Once a requester’s commercial interest § 701.45 Fee assessment. has been determined, naval activities (a) Fees may not be used to discour- should then determine if disclosure age requesters. FOIA fees are limited would be primarily in that interest. to standard charges for direct docu- That requires balancing the commer- ment search, review (in the case of cial interest of the request against any commercial requesters), and duplica- public benefit derived as a result of tion. that disclosure. Where the public inter- (b) To be responsive as possible to est served is beyond that of the re- FOIA requests while minimizing un- quester’s commercial interest, a waiver warranted costs to the taxpayer, naval or reduction of fees would be appro- activities shall: priate. Conversely, even if a significant (1) Analyze each request to determine public interest exists and the relative the category of the requester. If the commercial interest of the requester is naval activity’s determination of the greater than the public interest, then a category of the requester is different waiver or reduction of fees would be in- than that claimed by the requester, the appropriate. For example, while news naval activity will: media organizations have a commer- (i) Notify the requester that addi- cial interest as business organizations, tional justification should be provided their role of disseminating news to the to support the category claimed, and public can ordinarily be presumed to be that a search for responsive records of a primary interest. Therefore, any will not be initiated until agreement commercial interest is secondary to on the category of the requester. Ab- the primary interest in serving the sent further category justification public. Similarly, scholars writing from the requester and a reasonable pe- books or engaged in other forms of aca- riod of time (i.e., 30 calendar days), the demic research may recognize a com- naval activity shall render a final cat- mercial benefit, either directly or indi- egory determination and notify the re- rectly (through the institution they quester of the determination, including represent); however, normally such administrative appeal rights.
77
VerDate 25
(ii) Advise the requester that a assurance of full payment where the re- search for responsive records will not quester has a history of prompt pay- be initiated until the requester indi- ments, or require an advance payment cates a willingness to pay assessable of an amount up to the full estimated costs for the category determined by charges for requesters without a his- the naval activity. tory of payment. (2) Requesters must submit a fee dec- (7) Where a requester has previously laration appropriate for these cat- failed to pay a fee charged in a timely egories: fashion (i.e., within 30 calendar days (i) Commercial requesters must indi- from the date of the billing), the naval cate a willingness to pay all search, re- activity may require the requester to view, and duplication costs. pay the full amount owed, plus any ap- (ii) Educational or non-commercial sci- entific institution or news media rep- plicable interest, or demonstrate that resentatives. Requesters must indicate a the fee had been paid, and to make an willingness to pay duplication charges advance payment of the full amount of in excess of 100 pages, if more than 100 the estimated fee before the naval ac- pages of records are desired. tivity begins to process a new or pend- (iii) All others. Requesters must indi- ing request. Interest will be at the rate cate a willingness to pay assessable prescribed in 31 U.S.C. 3717 and con- search and duplication costs if more firmed with respective accounting and than 2 hours of search effort or 100 finance offices. pages of records are desired and the re- (8) After all work is completed on a sultant fees will exceed the $15 fee request and the documents are ready waiver threshold. for release, naval activities may re- (3) If the above conditions are not quest payment prior to forwarding the met, then the request need not be proc- documents if there is no payment his- essed and the requester shall be so in- tory on the requester or if the re- formed within 10 working days. quester has previously failed to pay a (4) As described above, naval activi- fee in a timely fashion (i.e., within 30 ties must be prepared to provide an es- calendar days of the billing). If the re- timate of assessable fees to the re- quester fails to pay in a timely fashion, quester. While searches vary among paragraph (b)(7) of § 701.45 applies. naval activities and an estimate is Naval activities may not hold docu- often difficult prior to an actual ments ready for release pending pay- search, requesters desiring estimates are entitled to them before committing ment from requesters with a history of to a willingness to pay. Should naval prompt payment. activity costs exceed the amount of the (9) When naval activities act under estimate or the amount agreed to by § 701.45 number (b)(1) through (7), FOIA the requester, the amount in excess of time limits (10 working days from re- the estimate or the amount agreed to ceipt of initial requests and 20 working shall not be charged without the re- days from receipt of appeals, plus per- quester’s agreement. missible extensions of time) begin after (5) A naval activity may not require the naval activity has received a will- advance payment of any fee (i.e., pay- ingness to pay fees or fee payments, if ment before work is commenced or appropriate. continued on a request) unless the re- (10) Naval activities may charge for quester previously failed to timely pay time spent in searching for records, fees or the agency determined that the even if that search fails to locate fee exceeds $250. A timely fashion is 30 records responsive to the request. calendar days from the date of billing Naval activities may also charge by the naval activity. search and review (in the case of com- (6) Where a naval activity estimates mercial requesters) time if records lo- or determines that allowable charges cated are determined to be exempt that a requester may be required to from disclosure. In practice, if the pay are likely to exceed $250, the naval activity should notify the requester of naval activity estimates that search the likely cost and obtain satisfactory charges are likely to exceed $25, it
78
VerDate 11
shall notify the requester of the esti- spective accounting and finance offices mated amount of fees, unless the re- for collection under the Debt Collec- quester has indicated in advance a will- tion Act of 1982. ingness to pay fees up to the estimated amount. Such notice shall offer the re- § 701.48 Computation of fees. quester the opportunity to confer with The fee schedule in Subpart D of this the naval activity with the object of part shall be used to compute search, reformulating the request to meet his review (in the case of commercial re- or her needs at a lower cost. questers), and duplication costs for processing FOIA requests. Costs shall § 701.46 Aggregating requests. be computed on time actually spent. Except for commercial requesters, a Time-based and dollar-based minimum naval activity may not charge for the charges for search, review (in the case first 2 hours of search time or for the of commercial requesters), and duplica- first 100 pages of reproduction. A re- tion are not authorized. quester may not file multiple requests at the same time each seeking portions § 701.49 Collection of fees. of a document or documents to avoid Collect FOIA fees when providing the payment of fees. When a naval activity documents to the requester when the reasonably believes that a requester or, requester specifically states that costs a group of requesters acting in concert are acceptable or acceptable up to a is attempting to break a request into a specified amount. Collection may not series of requests to evade fees, the be made in advance unless the re- naval activity may aggregate the re- quester has failed to pay previously as- quests and charge accordingly. In de- sessed fees within 30 calendar days termining whether it is reasonable to from the date of the billing by the aggregate the requests, consider the naval activity, or the naval activity time period of the requests. For exam- determines the fee will be in excess of ple, it would be reasonable to presume $250. that multiple requests of this type made within a 30-day period had been § 701.50 Search time costs. made to avoid fees. It is harder to The following schedules outline au- make that presumption for requests thorized fees: over a longer time period. Before ag- (a) Manual search. gregating requests from more than one requester, naval activities must have a Hour- Type Grade ly concrete basis to conclude that the re- Rate questers are acting in concert to avoid payment of fees. Naval activities may Clerical ...... E9/GS8 and below ...... $12 Professional ...... 01-06/GS9-GS/GM15 ...... 25 not aggregate multiple requests from Executive ...... 07/GS/GM16/ES1 and above 45 one requester on unrelated subjects.
§ 701.47 Effect of the Debt Collection (b) Computer search. Computer search Act of 1982 (Pub. L. 97-365). is based on the direct cost of the cen- The Debt Collection Act of 1982 (Pub. tral processing unit, input-output de- L. 97-365) provides for a minimum an- vices, and memory capacity of the nual rate of interest on overdue debts computer configuration. The cost of to the Federal Government. Naval ac- computer search is based on the com- tivities may charge an interest penalty puter operator/programmer’s time in for fees outstanding 30 days from the determining how to conduct and subse- date of billing (the first demand no- quently executing the search and is tice). The interest rate shall be as pre- charged at the rate of a manual search. scribed in 31 U.S.C. 3717. Naval activi- (c) Duplication costs. ties should verify the current interest Type Cost per Page rate with respective accounting and fi- nance offices. After one demand letter Pre-printed material (i.e., unaltered direc- tives, publications) ...... $.02 has been sent and 30 calendar days Office copy (i.e., xeroxed copies) ...... 15 have lapsed with no payment, naval ac- Microfiche ...... 25 tivities may submit the debt to the re-
79
VerDate 25
Type Cost per Page tify outstanding FOIA remittances so that follow-up letters can be sent ad- 1 Computer copies (tapes or reprints) ...... Actual cost vising the requester that his/her ac- 1 This means the cost of duplicating the tape or printout, count requires prompt action. which includes the operator's time and cost of the tape. (b) Naval activities shall advise re- (d) Review time (only applies in the case questers to make their check/money of commercial requesters). order payable to the Treasurer of the United States. Upon receipt of a check/ Hour- Type Grade ly money order, the receiving activity Rate shall submit a NAVCOMPT Form 2277, Clerical ...... E9/GS8 and below ...... $12 Voucher for Disbursement and/or Col- Professional ...... 01-06/GS9-GS/GM15 ...... 25 lection, and the check/money order to Executive ...... 07/GS/GM16/ES1 and above 45 the local disbursing office for process- ing. ‘‘FOIA Receipt Account Number (e) Audiovisual documentary materials. 3210’’ shall be annotated on the Compute search costs as for any other NAVCOMPT Form 2277 when process- record. Duplication cost is the actual ing all FOIA fees, except those received direct cost of reproducing the material, by Defense Business Operating Fund including the wage of the person doing (DBOF) and non-appropriated funded the work. Audiovisual materials pro- (NAF) activities. vided to a requester need not be in re- (c) Remittances received by DBOF producible format or quality. activities shall be made payable to the (f) Other records. Compute direct activity and the requester should indi- search and duplication cost for any cate on the check ‘‘FOIA Remittance.’’ record not described above as described The remittance shall be deposited in for audiovisual documentary material. the DBOF activity account. (g) Costs for special services. Comply- (d) Remittances received by NAF ac- ing with requests for special services is tivities shall be made payable to the at the discretion of the naval activity. activity and the requester should indi- FOIA and its fee structure do not cover cate on the check ‘‘FOIA Remittance.’’ these kinds of services. Naval activi- The remittance shall be deposited in ties may recover the costs of special the NAF activity account. services asked for by the requester [56 FR 66574, Dec. 24, 1991, as amended at 59 after agreement has been obtained FR 29723, June 9, 1994] from the requester to pay for one or more of the following services: § 701.52 Technical data fees. (1) Certifying that records are true (a) General. Technical data, recorded copies. information, regardless of the form or (2) Sending records by special meth- method of the recording, of a scientific ods such as express mail, etc. or technical nature (including com- puter software documentation). This § 701.51 FOIA fee remittance/receipt controls. term does not include computer soft- ware or data incidental to contract ad- (a) Naval activities shall implement ministration, such as financial and/or procedures to track FOIA fee remit- management information. Technical tances. At a minimum, the tracking data requiring release under FOIA, system should include the name of the shall be released after the requester requester, company (if applicable), pays all reasonable costs for search, amount of fee charged (identify by duplication, and review of the records total and breakdown, i.e., $250: $100 to be released. search, $50.00 review, $100 reproduc- (b) Definition. Technical data means tion), date and serial number of cor- recorded information, regardless of the respondence to the requester which form of method of the recording of a seeks the fee remittance, date remit- scientific or technical nature (includ- tance received, number of check, date ing computer software documentation). sent to local disbursing office, and copy This term does not include computer of NAVCOMPT Form 2277. This track- software or data incidental to contract ing system can be manual or auto- administration, such as financial and/ mated and should be designed to iden- or management information.
80
VerDate 25
(c) Retention of funds. Naval activi- charge will be established at 1/2-hourly ties shall retain fees received from re- rates. leasing technical data. The funds shall (ii) Computer search is the total cost be available for the same purpose and of the central processing unit, input- the same time period as the appropria- output devices, and memory capacity tion from which the costs were in- of the actual computer configuration. curred in complying with the request. The wage for the computer analyst/op- Reasonable costs are the full costs to erator determining how to conduct and the Government of rendering the serv- subsequently executing the search will ice, or fair market value of the service, be recorded as part of the computer whichever is greater. Fair market search and is at the same rate of the value shall be determined by commer- cial rates in the local geographical manual search scale. area. In the absence of a known market (2) Duplication costs are as follows: value, charges shall be based on recov- Type Cost ery of full costs to the Government. The full cost includes all direct and in- Aerial photographs, specifications, per- direct costs to conduct the search and mits, charts, blueprints, and other to duplicate records responsive to the technical documents ...... $2.50 each Engineering data (microfilm): ...... request. This cost is different from the Aperture cards: ...... direct costs allowable under the FOIA. Silver duplicate negative ...... $.75 per card (d) Waiver. Naval activities shall (When keypunched and veri- waive the payment of costs for tech- fied) ...... 85 per card nical data when greater than the costs Diazo duplicate negative ...... 65 per card (When keypunched and veri- required for release of this same infor- fied) ...... 75 per card mation under FOIA, if: 35mm roll film ...... $.50 per frame (1) The request is made by a United 16mm roll film ...... 45 per frame States citizen or a United States cor- Paper prints (engineering drawings) ...... $1.50 each poration who certifies that the tech- Paper reprints of microfilm indices ...... 10 each nical data requested is needed to sub- mit an offer, or determine capability of (3) Review time is computed as fol- submitting an offer. The technical data lows: must relate to the product which will be provided to the United States or a Type Grade Hourly contractor with the United States. Rate However, naval activities may require Clerical ...... E9/GS8 and below ...... $13.25 the citizen or corporation to pay a de- (Minimum Charge) ...... 8.30 posit of not more than the cost of com- plying with the request, which will be refunded upon submission of an offer Professional and Executive hourly rate by the citizen or corporation; of fees are established at actual hourly (2) The release of technical data is re- rate prior to review. A minimum quested to comply with an inter- charge will be established at 1/2-hourly national agreement; or, rates. (3) The naval activity determines that waiver is in the interest of the § 701.53 Other technical data records. United States. Charges for services not specifically (e) Fee rates. (1) Search time is com- provided above are at the following puted as follows: rates: (i) Manual Search. Type Cost Type Grade Hourly Rate Minimum charge for office copy (up to six images) ...... $3.50 Clerical ...... E9/GS8 and below ...... $13.25 (Minimum Charge) ...... 8.30 Each additional image ...... 10 Each typewritten page ...... 3.50 Certification and validation with seal ...... 5.20 Professional and Executive hourly rate Hand-drawn plots and sketches, each of fees are established at actual hourly hour or fraction thereof ...... 12.00 rate prior to search. A minimum
81
VerDate 25
Subpart E—Indexing, Public In- § 701.62 Scope and applicability. spection, and Federal Reg- This subpart prescribes actions to be ister Publication of Depart- executed by, or at the direction of, ment of the Navy Directives Navy Department [as defined in and Other Documents Affect- § 700.104(c) of this chapter] components and specified headquarters activities ing the Public for apprising members of the public of Department of the Navy regulations, SOURCE: 59 FR 46760, Sept. 12, 1994, unless policies, substantive and procedural otherwise noted. rules, and decisions which may affect them, and for enabling members of the § 701.61 Purpose. public to participate in Department of This subpart implements 5 U.S.C. the Navy rulemaking processes in mat- 552(a)(1) and (2) and provisions of De- ters of substantial and direct concern partment of Defense Directive 5400.7, to the public. This subpart com- May 13, 1988 (32 CFR part 286, 55 FR plements subpart A, which implements 53104); Department of Defense Directive Navy-wide requirements for furnishing 5400.9, December 23, 1974 (32 CFR part documents to members of the public 336, 40 FR 4911); and the Regulations of upon request. That a document may be the Administrative Committee of the published or indexed and made avail- able for public inspection and copying Federal Register (1 CFR chaps. I and II) under this instruction does not affect by delineating responsibilities and pre- the possible requirement under subpart scribing requirements, policies, cri- A for producing it for examination, or teria, and procedures applicable to: furnishing a copy, in response to a re- (a) Publishing the following Depart- quest made under that subpart. ment of the Navy documents in the FEDERAL REGISTER: § 701.63 Policy. (1) Certain classes of regulatory, or- In accordance with the spirit and in- ganizational, policy, substantive, and tent of 5 U.S.C. 552, the public has the procedural documents required to be right to the maximum information published for the guidance of the pub- concerning the organization and func- lic; tions of the Department of the Navy. (2) Certain classes of proposed regu- This includes information on the poli- latory documents required to be pub- cies and the substantive and procedural lished for public comment prior to rules used by the Department of the issuance; and Navy in its dealings with the public. In (3) Certain public notices required by accordance with Department of De- law or regulation to be published; fense policy described in 32 CFR part (b) Making available, for public in- 336, 40 FR 4911, moreover, the public is spection and copying, certain classes of encouraged to participate in Depart- documents having precedential effect ment of the Navy rulemaking when the on decisions concerning members of proposed rule would substantially and the public; directly affect the public. (c) Maintaining current indexes of § 701.64 Publication of adopted regu- documents having precedential effect latory documents for the guidance on decisions concerning members of of the public. the public, and publishing such indexes (a) Classes of documents to be pub- or making them available by other lished. Subject to the provisions of 5 means; U.S.C. 552(b) which exempt specified (d) Receiving and considering peti- matters from requirements for release tions of members of the public for the to the public [see subpart B of this issuance, revision, or cancellation of part], the classes of Department of the regulatory documents of some classes; Navy documents required to be pub- and lished on a current basis in the FED- (e) Distributing the FEDERAL REG- ERAL REGISTER are listed below. ISTER for official use within the De- (1) Naval organization and points of partment of the Navy. contact—descriptions of the central
82
VerDate 25
and field organization of the Depart- rine Corps, as appropriate, with the ment of the Navy and the locations at concurrence of the Judge Advocate which, the members or employees from General. whom, and the methods whereby, the (iv) Incorporation by reference. With public may obtain information, make the approval of the Director of the Fed- submittals or requests, or obtain deci- eral Register given in the limited in- sions; stances authorized in 1 CFR Part 51 (2) Methods and procedures for business and 32 CFR 336.5(c), the requirement with the public—statements of the gen- for publication in the FEDERAL REG- eral course and methods by which De- ISTER may be satisfied by reference in partment of the Navy functions affect- the FEDERAL REGISTER to other publi- ing members of the public are chan- cations containing the information neled and determined, including the which must otherwise be published in nature and requirements of all formal the FEDERAL REGISTER. In general, and informal procedures available; matters eligible for incorporation by (3) Procedural rules and forms—rules of reference are restricted to materials in procedure for functions affecting mem- the nature of published data, criteria, bers of the public, descriptions of forms standards, specifications, techniques, available or the places at which forms illustrations, or other published infor- may be obtained, and instructions as to mation which are reasonably available the scope and contents of all papers, re- to members of the class affected. ports, or examinations required to be submitted under such rules of proce- (b) Public inspection. When feasible, dures; and Department of the Navy and Depart- (4) Substantive rules and policies—sub- ment of Defense documents published stantive rules of general applicability in the FEDERAL REGISTER should be adopted as authorized by law, and made available for inspection and statements of general policy or inter- copying, along with available indexes pretations of general applicability for- of such documents, in the same loca- mulated and adopted by the Depart- tions used for public inspection and ment of the Navy. Such rules are com- copying of the documents con- monly contained in directives, manu- templated in § 701.65. als, and memorandums. (i) ‘‘General applicability’’ defined. The § 701.65 Availability, public inspection, and indexing of other documents af- definition prescribed in 1 CFR 1.1 per- fecting the public. tains to the classes of documents con- templated in § 701.64(b)(4). (a) Discussion. Section 552(a) of title (ii) Internal personnel rules and inter- 5, United States Code, requires the De- nal practices. In addition to the other partment of the Navy to make avail- exemptions listed in 5 U.S.C. 552(b) and able for public inspection and copying subpart B of this part, particular at- documents which have precedential tention is directed to the exemption significance on those Department of pertaining to internal personnel rules the Navy decisions which affect the and internal practices. public. These documents must be kept (iii) Local regulations. It is unneces- readily available for public inspection sary to publish in the FEDERAL REG- and copying at designated locations, ISTER a regulation which is essentially unless they are promptly published and local in scope or application, such as a copies are offered for sale. Addition- directive issued by a base commander ally, documents issued after July 4, in the implementation of his 1967, are required to be indexed on a responsiblity and authority under sub- current basis. These indexes, or supple- part G of part 700 of this title for ments thereto, must be published at guarding the security of the installa- least quarterly in accordance with the tion or controlling the access and con- provisions of this paragraph. In deter- duct of visitors or tradesmen. However, mining whether a particular document such publication may be authorized is subject to the requirements of this under extraordinary circumstances, as paragraph, consideration should be determined by the Chief of Naval Oper- given to the statutory purposes and ations or the Commandant of the Ma- legal effect of the provisions.
83
VerDate 25
(1) Statutory purposes. In general, the structions relating only to internal purpose of the requirement to provide management aspects of property or fis- members of the public with essential cal accounting, personnel administra- information is to enable them to deal tion, and most other ‘‘proprietary’’ effectively and knowledgeably with functions of the department are not Federal agencies; to apprise members within the scope of this provision. This of the public of the existence and con- provision also does not apply to in- tents of documents which have poten- structions for employees on methods, tial legal consequences as precedents techniques, and tactics to be used in in administrative determinations performing their duties; for example: which may affect them; and to permit (A) Instructions or manuals issued public examination of the basis for ad- for audit, investigation, and inspection ministrative actions which affect the purposes; public. (B) Those which prescribe oper- (2) Legal effect. If a document is re- ational tactics; standards of perform- quired to be indexed and made avail- ance; criteria for defense, prosecution, able under this paragraph, it may not or settlement of cases; or negotiating be used or asserted as a precedent or bargaining techniques, limitations, against a member of the public unless or positions; and it was so indexed and made available, (C) Operations and maintenance or unless the person against whom it is manuals and technical information asserted had actual and timely notice concerning munitions, equipment, and of its contents. systems, and foreign intelligence oper- (b) Classes of documents affected. (1) ations. Subject to the provisions of 5 U.S.C. (2) In determining whether a docu- 552(b) which exempt specified matters ment has precedential effect, the pri- from the requirements of public disclo- mary test is whether it is intended as sure, the following classes of Depart- guidance to be followed either in deci- ment of the Navy documents are in- sions or evaluations by the issuing cluded in the requirements of this authority’s subordinates, or by the paragraph: issuing authority itself in the adjudica- (i) Final adjudicative opinions and or- tion or determination of future cases ders—opinions (including concurring involving similar facts or issues. The and dissenting opinions) and orders kinds of orders or opinions which clear- which are issued as part of the final ly would have precedential effect are disposition of adjudication proceedings those that are intended to operate both (as defined in 5 U.S.C. 551) and which as final dispositions of the questions may have precedential effect in the dis- involved in the individual cases pre- position of other cases affecting mem- sented, and as rules of decision to be bers of the public; followed by the issuing authority or its (ii) Policy statements and interpreta- subordinates in future cases involving tions—statements of policy and inter- similar questions. By contrast, many pretations of less than general applica- adjudicative orders and opinions issued bility (i. e., applicable only to specific within the Department of the Navy op- cases; organizations, or persons), which erate only as case-by-case applications are not required to be published in the of policies or interpretations estab- FEDERAL REGISTER, but which may lished in provisions of manuals or di- have precedential effect in the disposi- rectives and are not themselves used, tion of other cases affecting members cited, or relied on as rules of decision of the public; in future cases. In these instances, the (iii) Manuals and instructions—admin- underlying manual or directive provi- istrative staff manuals, directives, and sions obviously would have preceden- instructions to staff, or portions there- tial effect, but the orders and opinions of, which establish Department of the themselves would not have. A rec- Navy policy or interpretations of pol- ommendation by an official who is not icy that serve as a basis for determin- authorized to adjudicate, or to issue a ing the rights of members of the public binding statement of policy or inter- with regard to Department of the Navy pretation in a particular matter would functions. In general, manuals and in- not have precedential effect, though an
84
VerDate 25
order, opinion, statement of policy, or current basis. Each such index was re- interpretation issued by an authorized quired to initially be published by July official pursuant to such recommenda- 1, 1975. An updated version of each such tion might have that effect. index, or a current supplement thereto, (c) Deletion of identifying details. (1) shall be published by an authorized Although the exemptions from public method at least annually thereafter. disclosure described in 5 U.S.C. 552 and (3) Methods of publication. The meth- subpart B of this part are applicable to ods authorized for publication of the documents which are required to be in- indexes contemplated in this paragraph dexed and made available for public in- are: spection and copying under this para- (i) Publication in the FEDERAL REG- graph, there is no general requirement ISTER; that any segregable portions of par- (ii) Commercial publication, provided tially exempt documents be so indexed that such commercial publication is and made available for public inspec- readily available to members of the tion and copying. As a general rule, a public, or will be made available upon record may therefore be held exempt in request and payment of costs (if this its entirety from the requirements of method is utilized, information on the this paragraph if it is determined that cost of copies and the address from it contains exempt matter and that it which they may be obtained shall be is reasonably foreseeable that disclo- published in the FEDERAL REGISTER); or sure would be harmful to an interest (iii) Furnishing internally repro- protected by that exemption. An excep- duced copies upon request, at cost not tion to this general rule does exist with regard to a record which would be ex- to exceed the direct cost of duplication empt only because it contains informa- in accordance with subpart D of this tion which, if disclosed, would result in part, provided that it is determined, by a clearly unwarranted invasion of pri- an order published in the FEDERAL vacy. REGISTER, that the publication of the (2) Where necessary to prevent a index by methods § 701.65(d)(3) (i) or (ii) clearly unwarranted invasion of a per- would be unnecessary or impracticable. son’s privacy, identifying details Such order shall state the cost of cop- should be deleted from a record which ies and the address from which they is required to be indexed and made may be obtained. The Chief of Naval available for public inspection and Operations (N09B30) is authorized to copying under this paragraph. In every issue such an order in a proper case. such case, the justification for the de- (4) Public inspection of indexes. In ad- letion must be fully stated in writing dition to publication by one of the fore- in a manner which avoids creating in- going methods, each index will be made ferences that could be injurious to the available for public inspection and person whose privacy is involved. Usual copying in accordance with § 701.65(e) reasons for deletion of identifying de- at the locations where Department of tails include protection of privacy in a the Navy records are available for pub- person’s business affairs, medical mat- lic inspection. ters, or private family matters; human- (e) Where records may be inspected. Lo- itarian considerations; and avoidance cations and times at which Department of embarrassment to a person. of the Navy records, and indexes there- (d) Publication of indexes—(1) Form of of, are available for public inspection indexes. Each index should be arranged and copying are shown in § 701.32. topically or by descriptive words, so (f) Cost. Fees for copying services, if that members of the public may be able any, furnished at locations shown in to locate the pertinent documents by § 701.32 shall be determined in accord- subject, rather than by case name or ance with subpart D of this part. by a numbering system. (g) Records of the United States Navy- (2) Time of publication. Each compo- Marine Corps Court of Military Review. nent having cognizance of records re- The United States Navy-Marine Corps quired under this paragraph to be in- Court of Military Review is deemed to dexed shall compile and maintain an be a ‘‘court of the United States’’ with- index of such records on a continually in the meaning of 5 U.S.C. 551 and is
85
VerDate 25
therefore excluded from the require- publication to invite public comment ments of 5 U.S.C. 552. Nevertheless, un- will be warranted unless, upon evalua- published decisions of the United tion, it is affirmatively determined States Navy-Marine Corps Court of both that a significant and legitimate Military Review, although not indexed, interest of the Department of the Navy are available for public inspection at or the public will be served by omitting the location shown in § 701.32(c). such publication for public comment, and that the document is subject to § 701.66 Publication of proposed regu- one or more of the following excep- lations for public comment. tions: (a) Discussion. The requirements of (1) It pertains to a military or foreign this section are not imposed by stat- affairs function of the United States ute, but are the implementation of which has been determined under the policies and procedures created admin- criteria of an Executive Order or stat- istratively in 32 CFR part 336. In effect, ute to require a security classification the pertinent provisions of 32 CFR part in the interests of national defense or 336 establish, within the Department of foreign policy; Defense and its components, proce- (2) It relates to naval management, dures that are analogous to the public naval military or civilian personnel, or rulemaking procedures applicable to public contracts (e.g., Navy Procure- some functions of other Federal agen- ment Directives), including non- cies under 5 U.S.C. 553. While the ad- appropriated fund contracts; ministrative policy of encouraging the (3) It involves interpretative rules, maximum practicable public participa- general statements of policy, or rules tion in the Department of the Navy of agency organization, procedure, or rulemaking shall be diligently fol- practice; or lowed, determinations by the Depart- (4) It is determined with regard to ment of the Navy as to whether a pro- the document, for good cause, that in- posed regulatory requirement origi- viting public comment is impractica- nated by it comes within the purview ble, unnecessary, or contrary to the of this paragraph and the correspond- public interest. ing provisions of 32 CFR part 336, and (c) Procedures—(1) Normal case. Unless as to whether inviting public comment the official having cognizance of a pro- is warranted, shall be conclusive and posed regulatory document determines final. under the criteria of § 701.66(b) that in- (b) Classes of documents affected. Each viting public comment is not war- proposed regulation or other document ranted, he or she shall cause it to be of a class described in § 701.64(a) (or a published in the FEDERAL REGISTER proposed revision of an adopted docu- with an invitation for the public to ment of any of those classes) which submit comments in the form of writ- would ‘‘originate’’ within the Depart- ten data, views, or arguments during a ment of the Navy a requirement of gen- specified period of not less than 30 days eral applicability and future effect for following the date of publication. An implementing, interpreting, or pre- opportunity for oral presentation nor- scribing law or policy, or practice and mally will not be provided, but may be procedure requirements constituting provided at the sole discretion of the authority for prospective actions hav- official having cognizance of the pro- ing substantial and direct impact on posed directive if he or she deems it to the public, or a significant portion of be in the best interest of the Depart- the public, must be evaluated to deter- ment of the Navy or the public to do mine whether inviting public comment so. After careful consideration of all prior to issuance is warranted. Docu- relevant matters presented within the ments that merely implement regula- period specified for public comment, tions previously issued by higher naval the proposed document may be issued authorities or by the Department of in final form. After issuance, the Defense will not be deemed to ‘‘origi- adopted document, and a preamble ex- nate’’ requirements within the purview plaining the relationship of the adopt- of this section. If a proposed document ed document to the proposed document is within the purview of this section, and the nature and effect of public
86
VerDate 25
comments, shall be published in the § 701.100 Purpose. FEDERAL REGISTER for the guidance of Subparts F and G of this part imple- the public. ment the Privacy Act (5 U.S.C. 552a), (2) Where public comment is not war- and DoD Directive 5400.11 1, and DoD ranted. The official having cognizance 5400.11–R 2, (see 32 CFR part 310) and of a proposed document within the pur- provides Department of the Navy poli- view of this paragraph shall, if he or cies and procedures for: she determines that inviting public (a) Governing the collection, safe- comment concerning the document is guarding, maintenance, use, access, not warranted under the criteria of amendment, and dissemination of per- § 701.66(b), incorporate that determina- sonal information kept by Department tion, and the basis therefor, in the doc- of the Navy in systems of records; ument when it is issued or submitted (b) Notifying individuals if any sys- to a higher authority for issuance. tems of records contain a record per- After issuance, such document shall be taining to them; published in the FEDERAL REGISTER for the guidance of the public, if required (c) Verifying the identity of individ- under § 701.64(b). uals who request their records before the records are made available to § 701.67 Petitions for issuance, revi- them; sion, or cancellation of regulations (d) Notifying the public of the exist- affecting the public. ence and character of each system of In accordance with the provisions of records. 32 CFR part 336, the Department of the (e) Exempting systems of records Navy shall accord any interested per- from certain requirements of the Pri- son the right to petition, in writing, vacy Act; and for the issuance, revision, or cancella- (f) Governing the Privacy Act rules tion of regulatory document that origi- of conduct for Department of the Navy nates, or would originate, for the De- personnel, who will be subject to crimi- partment of the Navy, a policy, re- nal penalties for noncompliance with 5 quirement, or procedure which is, or U.S.C. 552a, as amended by the Com- would be, within the purview of § 701.66. puter Matching Act of 1988. The official having cognizance of the particular regulatory document in- § 701.101 Applicability. volved, or having cognizance of the This subpart and subpart G of this subject matter of a proposed document, part apply throughout the Department shall give full and prompt consider- of the Navy. It is also applicable to ation to any such petition. Such offi- contractors by contract or other le- cial may, at his or her absolute discre- gally binding action, whenever a De- tion, grant the petitioner an oppor- partment of the Navy contract pro- tunity to appear, at his or her own ex- vides for the operation of a system of pense, for the purpose of supporting the records or portion of a system of petition, if this is deemed to be com- records to accomplish a Department of patible with orderly conduct of public the Navy function. For the purposes of business. The petitioner shall be ad- any criminal liabilities adjudged, any vised in writing of the disposition, and contractor or any employee of such the reasons for the disposition, of any contractor is considered to be an em- petition within the purview of this sec- ployee of Department of the Navy. In tion. case of a conflict, this subpart and sub- part G of this part take precedence Subpart F—Department of the over any existing Department of the Navy Privacy Act Program Navy directive that deals with the per- sonal privacy and rights of individuals
AUTHORITY: Pub. L. 93–579, 88 stat. 1896 (5 1 U.S.C. 552a). Copies may be obtained, at cost, from the National Technical Information Service, 5285 SOURCE: 59 FR 55348, Nov. 7, 1994, unless Port Royal Road, Springfield, VA 22161. otherwise noted. 2 See footnote 1 to § 701.100.
87
VerDate 25
regarding their personal records, ex- formed services (including members of cept for disclosure of personal informa- the Reserve Components), individuals tion required by 5 U.S.C. 552 (1988) as or survivors thereof, entitled to receive amended by the Freedom of Informa- immediate or deferred retirement bene- tion Reform Act and implemented by fits under any retirement program of Secretary of the Navy Instruction the Government of the United States 5720.42E 3, ‘‘Department of the Navy (including survivor benefits). Freedom of Information Act Program.’’ (g) Individual. A living citizen of the United States or alien lawfully admit- § 701.102 Definitions. ted to the U.S. for permanent resi- For the purposes of this subpart and dence. The legal guardian of an individ- subpart G of this part, the following ual has the same rights as the individ- meanings apply. ual and may act on his or her behalf. (a) Access. The review or copying of a No rights are vested in the representa- record or parts thereof contained in a tive of a deceased person under this in- system of records by any individual. struction and the term ‘‘individual’’ (b) Agency. For the purposes of dis- does not embrace an individual acting closing records subject to the Privacy in a non-personal capacity (for exam- Act between or among Department of ple, sole proprietorship or partnership). Defense (DoD) components, the Depart- (h) Individual access. Access to infor- ment of Defense is considered a single mation pertaining to the individual by agency. For all other purposes, Depart- the individual or his or her designated ment of the Navy is considered an agent or legal guardian. agency within the meaning of Privacy (i) Maintain. Includes maintain, col- Act. lect, use, or disseminate. (c) Confidential source. A person or or- (j) Member of the public. Any individ- ganization who has furnished informa- ual or party acting in a private capac- tion to the Federal Government either ity. under an express promise that the per- (k) Minor. Under this subpart and son’s or the organization’s identity will subpart G of this part, a minor is an in- be held in confidence or under an im- dividual under 18 years of age, who is plied promise of such confidentiality if not a member of the U.S. Navy or Ma- this implied promise was made before rine Corps, nor married. September 27, 1975. (l) Official use. Under this subpart and (d) Defense Data Integrity Board. Con- subpart G of this part, this term is used sists of members of the Defense Pri- when Department of the Navy officials vacy Board, as outlined in DoD Direc- and employees have a demonstrated tive 5400.11 and, in addition, the DoD need for the use of any record or the in- Inspector General or the designee, formation contained therein in the per- when convened to oversee, coordinate formance of their official duties. and approve or disapprove all DoD (m) Personal information. Information component computer matching covered about an individual that is intimate or by the Privacy Act. private to the individual, as distin- (e) Disclosure. The transfer of any guished from information related sole- personal information from a system of ly to the individual’s official functions records by any means of communica- or public life. tion (such as oral, written, electronic, (n) Privacy Act (PA) request. A request mechanical, or actual review), to any from an individual for notification as person, private entity, or government to the existence of, access to, or agency, other than the subject of the amendment of records pertaining to record, the subject’s designated agent that individual. These records must be or the subject’s legal guardian. maintained in a system of records. (f) Federal personnel. Officers and em- (o) Record. Any item, collection, or ployees of the Government of the grouping of information about an indi- United States, members of the uni- vidual that is maintained by a naval activity including, but not limited to, 3 Copies available from Chief of Naval Oper- the individual’s education, financial ations (N09B30), 2000 Navy Pentagon, Wash- transactions, and medical, criminal, or ington, DC 20350–2000. employment history, and that contains
88
VerDate 25
the individual’s name or other identify- tems of records must be published in ing particulars assigned to the individ- the FEDERAL REGISTER and are also ual, such as a finger or voice print or a published in periodic Chief of Naval Op- photograph. erations Notes (OPNAVNOTEs) 5211 4. (p) Review authority. An official (v) Word processing equipment. Any charged with the responsibility to rule combination of electronic hardware on administrative appeals of initial de- and computer software integrated in a nials of requests for notification, ac- variety of forms (firmware, program- cess, or amendment of records. The mable software, hard wiring, or similar Secretary of the Navy has delegated equipment) that permits the processing his review authority to the Assistant of textual data. Generally, the equip- Secretary of the Navy (Manpower and ment contains a device to receive in- Reserve Affairs (ASN(M&RA)), the formation, a computer-like processor General Counsel (OGC), and the Judge with various capabilities to manipulate Advocate General (NJAG). Addition- the information, a storage medium, ally, the Office of Personnel Manage- and an output device. ment (OPM) is the review authority for (w) Word processing system. A com- civilian official personnel folders or bination of equipment employing auto- records contained in any other OPM mated technology, systematic proce- record. dures, and trained personnel for the (q) Risk assessment. An analysis which primary purpose of manipulating considers information sensitivity, vul- human thoughts and verbal or written nerability, and cost to a computer fa- communications into a form suitable cility or word processing center in safe- to the originator. The results are writ- guarding personal information proc- ten or graphic presentations intended essed or stored in the facility or center. to communicate verbally or visually (r) Routine use. Disclosure of a record with another individual. outside the Department of Defense for (x) Working day. All days excluding a purpose that is compatible with the Saturday, Sunday, and legal holidays. purpose for which the record was col- lected and maintained by the Depart- § 701.103 Policy. ment of Defense. The routine use must It is the policy of Department of the have been included in the notice for the Navy to: system of records published in the FED- (a) Ensure that all its personnel com- ERAL REGISTER. ply fully with 5 U.S.C. 552a, DoD Direc- (s) Statistical record. A record main- tive 5400.11 and DoD 5400.11–R, to pro- tained only for statistical research, or tect individuals from unwarranted in- reporting purposes, and not used in vasions of privacy. Individuals covered whole or in part in making any deter- by this protection are living citizens of mination about a specific individual. the U.S. or aliens lawfully admitted for (t) System manager. An official who permanent residence. A legal guardian has overall responsibility for a system of an individual or parent of a minor of records. He or she may serve at any when acting on the individual’s or mi- level in Department of the Navy. Sys- nor’s behalf, has the same rights as the tems managers are indicated in the individual or minor. (A member of the published record systems notices. If Armed Forces is not a minor for the more than one official is indicated as a purposes of this subpart and subpart G system manager, initial responsibility of this part). resides with the manager at the appro- (b) Collect, maintain, and use only priate level (i.e., for local records, at that personal information needed to the local activity). support a Navy function or program as (u) System of records. A group of authorized by law or E.O., and disclose records under the control of a Depart- this information only as authorized by ment of the Navy activity from which 5 U.S.C. 552a and this subpart and sub- information is retrieved by the individ- part G of this part. In assessing need, ual’s name or by some identifying consideration shall be given to alter- number, symbol, or other identifying natives, such as use of information not particular assigned to the individual. System notices for all Privacy Act sys- 4 See footnote 3 to § 701.101.
89
VerDate 25
individually identifiable or use of sam- § 701.105. These OPNAVNOTEs 5211 pro- pling of certain data for certain indi- vide a listing of all Department of the viduals only. Additionally, consider- Navy Privacy Act systems of records ation is to be given to the length of and identify the Office of Personnel time information is needed, and the Management (OPM) government-wide cost of maintaining the information systems containing information on De- compared to the risks and adverse con- partment of the Navy civilian employ- sequences of not maintaining the infor- ees, even though technically, Depart- mation. ment of the Navy does not have cog- (c) Keep only personal information nizance over them. A Privacy Act sys- that is timely, accurate, complete, and tems notice outlines what kinds of in- relevant to the purpose for which it formation may be collected and main- was collected. tained by naval activities. When col- (d) Let individuals have access to, lecting/maintaining information in a and obtain copies of, all or portions of Privacy Act system of records, review their records, subject to exemption the systems notice to ensure activity procedures authorized by law and this compliance is within the scope of the subpart and subpart G of this part. system. If you determine the systems (e) Let individuals request amend- notice does not meet your needs, con- ment of their records when discrep- tact the systems manager or Chief of ancies proven to be erroneous, un- Naval Operations (N09B30) with your timely, incomplete, or irrelevant are concerns so that amendment of the noted. system may be considered. (f) Let individuals request an admin- istrative review of decisions that deny § 701.104 Responsibility and authority. them access, or refuse to amend their (a) Chief of Naval Operations (CNO). records. CNO is designated as the official re- (g) Ensure that adequate safeguards sponsible for administering and super- are enforced to prevent misuse, unau- vising the execution of 5 U.S.C. 552a, thorized disclosure, alteration, or de- DoD Directive 5400.11, and DoD 5400.11– struction of personal information in R. CNO has designated the Assistant records. Vice Chief of Naval Operations (N09B30) (h) Maintain no records describing as principal Privacy Act Coordinator how an individual exercises his or her for the Department of the Navy to: rights guaranteed by the First Amend- (1) Set Department of the Navy pol- ment (freedom of religion, political be- icy on the provisions of the Privacy liefs, speech, and press; peaceful assem- Act. blage; and petition for redress of griev- (2) Serve as principal advisor on all ances), unless they are: Privacy Act matters. (1) Expressly authorized by statute; (3) Oversee the administration of the (2) Authorized by the individual; Privacy Act program, which includes (3) Within the scope of an authorized preparing the Department of the Navy law enforcement activity; or Privacy Act report for submission to (4) For the maintenance of certain Congress. items of information relating to reli- (4) Develop Navy-wide Privacy Act gious affiliation for members of the training program and serve as training- naval service who are chaplains. This oversight manager. should not be construed, however, as (5) Conduct staff assistance visits restricting or excluding solicitation of within Department of the Navy to re- information which the individual is view compliance with 5 U.S.C. 552a and willing to have in his or her record con- this subpart and subpart G of this part. cerning religious preference, particu- (6) Coordinate and prepare responses larly that required in emergency situa- for Privacy Act requests received for tions. Office of the Secretary of the Navy (5) Maintain only systems of records records. which have been published in the FED- (b) Commandant of the Marine Corps ERAL REGISTER, in accordance with (CMC). CMC is responsible for admin- periodic Chief of Naval Operations istering and supervising the execution Notes (OPNAVNOTEs) 5211 and of this subpart and subpart G of this
90
VerDate 25
part within the Marine Corps. The (d) Release authority. Officials having Commandant has designated the Direc- cognizance over the requested subject tor, Manpower Management Informa- matter are authorized to respond to re- tion Systems Division (HQMC (Code quests for notification, access, and/or MI)) as the Privacy Act coordinator for amendment of records. These officials Headquarters, U.S. Marine Corps. could also be systems managers (see (c) Privacy Act Coordinator. Each ad- § 701.104(g)). dressee is responsible for implementing (e) Denial authority. Within the De- and administering a Privacy Act pro- partment of the Navy, the following gram under this subpart and subpart G chief officials, their respective vice of this part. Each addressee shall des- commanders, deputies, principal assist- ignate a Privacy Act Coordinator to: ants, and those officials specifically (1) Serve as principal point of contact designated by the chief official are au- on Privacy Act matters. thorized to deny requests, either in (2) Provide training for activity/com- whole or in part, for notification, ac- mand personnel on the provisions of 5 cess and amendment, made under this U.S.C. 552a and this subpart and sub- subpart and subpart G of this part, part G of this part. when the records relate to matters within their respective areas of respon- (3) Issue implementing instruction sibility or chain of command: which designates the activity’s Privacy (1) Department of the Navy. Civilian Act Coordinator, Privacy Act records Executive Assistants; CNO; CMC; Chief disposition, Privacy Act processing of Naval Personnel; Commanders of the procedures, identification of Privacy Naval Systems Commands, Office of Act systems of records under their cog- Naval Intelligence, Naval Security nizance, and training aids for those Group Command, Naval Imaging Com- personnel involved with systems of mand, and Naval Computer and Tele- records. communications Command; Chief, Bu- (4) Review internal directives, prac- reau of Medicine and Surgery; Auditor tices, and procedures, including those General of the Navy; Naval Inspector having Privacy Act implications and General; Director, Office of Civilian where Privacy Act Statements (PASs) Personnel Management; Chief of Naval are needed. Education and Training; Commander, (5) Compile input and submit consoli- Naval Reserve Force; Chief of Naval dated Privacy Act report to Echelon 2 Research; Commander, Naval Oceanog- Privacy Act Coordinator, who, in turn, raphy Command; heads of Department will provide consolidated report to CNO of the Navy Staff Offices, Boards, and (N09B30). Councils; Flag Officers and General Of- (6) Maintain liaison with records ficers. NJAG and his Deputy, and OGC management officials (i.e., mainte- and his Deputies are excluded from this nance and disposal procedures and grant of authorization. While NJAG standards, forms, and reports), as ap- and OGC are not denial authorities, propriate. they are authorized to further delegate (7) Provide guidance on handling Pri- the authority conferred here to other vacy Act requests and scope of Privacy senior officers/officials within NJAG Act exemptions. and OGC. (8) Conduct staff assistance visits (2) For the shore establishment.(i) All within command and lower echelon officers authorized under Article 22, commands to ensure compliance with Uniform Code of Military Justice the Privacy Act. (UCMJ) or designated in section 0120, (9) Echelon 2 Privacy Act Coordina- Manual of the Judge Advocate General tors shall provide CNO (N09B30) with a (JAGINST 5800.7C) 5, to convene general complete listing of all Privacy Act Co- courts-martial. ordinators under their jurisdiction. (ii) Commander, Naval Investigative Such information should include activ- Service Command. ity name and address, office code, name of Privacy Act Coordinator, com- 5 Copies available from the Judge Advocate mercial and DSN telephone number, General, Navy Department, 200 Stovall and FAX number, if applicable. Street, Alexandria, VA 22332–2400.
91
VerDate 25
(iii) Deputy Commander, Naval Legal (h) Department of the Navy employees. Service Command. Each employee of the Department of (3) In the Operating Forces. All officers the Navy has certain responsibilities authorized by Article 22, Uniform Code for safeguarding the rights of others. of Military Justice (UCMJ), or des- These include: ignated in section 0120, Manual of the (1) Not disclosing any information Judge Advocate General (JAGINST contained in a system of records by 5800.7C), to convene general courts- any means of communication to any martial. person or agency, except as authorized (f) Review authority. (1) The Assistant by this subpart and subpart G of this Secretary of the Navy (Manpower and part. Reserve Affairs), is the Secretary’s des- (2) Not maintaining unpublished offi- ignee, and shall act upon requests for cial files which would fall under the administrative review of initial denials provisions of 5 U.S.C. 552a. of requests for amendment of records (3) Safeguarding the privacy of indi- related to fitness reports and perform- viduals and confidentiality of personal ance evaluations of military personnel information contained in a system of (see § 701.111(c)(3)). records. (2) The Judge Advocate General and General Counsel, as the Secretary’s § 701.105 Systems of records. designees, shall act upon requests for To be subject to this subpart and sub- administrative review of initial denials part G of this part, a ‘‘system of of records for notification, access, or records’’ must consist of ‘‘records’’ amendment of records, as set forth in that are retrieved by the name, or § 701.111(c)(2) and (4). some other personal identifier, of an (3) The authority of the Secretary of individual and be under the control of the Navy (SECNAV), as the head of an Department of the Navy. agency, to request records subject to (a) Retrieval practices. (1) Records in a the Privacy Act from an agency exter- group of records that are not retrieved nal to the Department of Defense for by personal identifiers are not covered civil or criminal law enforcement pur- by this subpart and subpart G of this poses, under subsection (b)(7) of 5 part, even if the records contain infor- U.S.C. 552a, is delegated to the Com- mation about individuals and are under mandant of the Marine Corps, the Di- the control of Department of the Navy. rector of Naval Intelligence, the Judge The records must be retrieved by per- Advocate General, and the General sonal identifiers to become a system of Counsel. records. (g) Systems manager. Systems man- (2) If records previously not retrieved agers, as designated in Department of by personal identifiers are rearranged the Navy’s compilation of systems no- so they are retrieved by personal iden- tices (periodic Chief of Naval Oper- tifiers, a new system notice must be ations Notes (OPNAVNOTEs) 5211 6, submitted in accordance with § 701.107. ‘‘Current Privacy Act Issuances’’) (3) If records in a system of records shall: are rearranged so retrieval is no longer (1) Ensure the system has been pub- by personal identifiers, the records are lished in the FEDERAL REGISTER and no longer subject to this subpart and that any additions or significant subpart G of this part and the records changes are submitted to CNO (N09B30) system notice should be deleted in ac- for approval and publication. The sys- cordance with § 701.107. tems of records should be maintained (b) Recordkeeping standards. A record in accordance with the systems notices maintained in a system of records sub- as published in the periodic Chief of ject to this subpart and subpart G of Naval Operations Notes this part must meet the following cri- (OPNAVNOTEs) 5211, ‘‘Current Privacy teria: Act Issuances.’’ (1) Be accurate. All information in (2) Maintain accountability records the record must be factually correct. of disclosures. (2) Be relevant. All information con- tained in the record must be related to 6 See footnote 3 to § 701.101. the individual who is the record subject
92
VerDate 25
and also must be related to a lawful tion must be necessary to accomplish a purpose or mission of the Department lawful purpose or mission.); of the Navy activity maintaining the (iii) The ability to meet the informa- record. tional needs without using personal (3) Be timely. All information in the identifiers (will anonymous statistical record must be reviewed periodically to records meet the needs?); ensure that it has not changed due to (iv) The length of time each item of time or later events. information must be kept; (4) Be complete. It must be able to (v) The methods of disposal; stand alone in accomplishing the pur- (vi) The cost of maintaining the in- pose for which it is maintained. formation; and (5) Be necessary. All information in (vii) Whether a system already exists the record must be needed to accom- that serves the purpose of the new sys- plish a Department of the Navy mis- tem. sion or purpose established by Federal (2) Evaluate and review all existing Law or E.O. of the President. systems of records. (c) Authority to establish systems of (i) When an alteration or amendment records. Identify the specific Federal of an existing system is prepared pur- statute or E.O. of the President that suant to § 701.107(b) and (c), do the eval- authorizes maintaining each system of uation described in § 701.105(e). records. When a naval activity uses its (ii) Conduct the following reviews an- ‘‘internal housekeeping’’ statute, i.e., 5 nually and be prepared to report, in ac- U.S.C. 301, Departmental Regulations, cordance with § 701.104(c)(8), the results the naval instruction that implements and corrective actions taken to resolve the statute should also be identified. A problems uncovered. statute or E.O. authorizing a system of (A) Training practices to ensure all records does not negate the responsibil- personnel are familiar with the re- ity to ensure the information in the quirements of 5 U.S.C. 552a, and DoD system of records is relevant and nec- Directive 5400.11, ‘‘DoD Privacy Pro- essary. gram’’, this subpart and subpart G of (d) Exercise of First Amendment rights. this part, and any special needs their (1) Do not maintain any records de- specific jobs entail. scribing how an individual exercises (B) Recordkeeping and disposal prac- rights guaranteed by the First Amend- tices to ensure compliance with this ment of the U.S. Constitution unless subpart and subpart G of this part. expressly authorized by Federal law; (C) Ongoing computer matching pro- the individual; or pertinent to and grams in which records from the sys- within the scope of an authorized law tem have been matched with non-DoD enforcement activity. records to ensure that the require- (2) First amendment rights include, ments of § 701.115 have been met. but are not limited to, freedom of reli- (D) Actions of Department of the gion, freedom of political beliefs, free- Navy personnel that resulted in either dom of speech, freedom of the press, Department of the Navy being found the right to assemble, and the right to civilly liable or a person being found petition. criminally liable under 5 U.S.C. 552a, to (e) System manager’s evaluations and determine the extent of the problem reviews. (1) Evaluate each new system and find the most effective way of pre- of records. Before establishing a sys- venting the problem from occurring in tem of records, evaluate the informa- the future. tion to be included and consider the (E) Each system of records notice to following: ensure it accurately describes the sys- (i) The relationship of each item of tem. Where major changes are needed, information to be collected and re- alter the system notice in accordance tained to the purpose for which the with § 701.107(b). If minor changes are system is maintained (all information needed, amend the system notice pur- must be relevant to the purpose); suant to § 701.107(c). (ii) The specific impact on the pur- (iii) Every even-numbered year, re- pose or mission if each category of in- view a random sample of Department formation is not collected (all informa- of the Navy contracts that provide for
93
VerDate 25
the operation of a system of records to (FAR), contracts for the operation of a accomplish a Department of the Navy system of records shall identify specifi- function, to ensure the wording of each cally the record system and the work contract complies with the provisions to be performed, and shall include in of 5 U.S.C. 552a and § 701.105(h). the solicitations and resulting contract (iv) Every three years, beginning in the terms as prescribed by the FAR. 1992, review the routine use disclosures (iii) If the contractor must use associated with each system of records records that are subject to this subpart to ensure the recipient’s use of the and subpart G of this part to perform records continues to be compatible any part of a contract, the contractor with the purpose for which the infor- activities are subject to this subpart mation was originally collected. and subpart G of this part. (v) Every three years, beginning in (iv) This subpart and subpart G of 1993, review each system of records for this part do not apply to records of a which exemption rules have been estab- contractor that are: lished to determine whether each ex- (A) Established and maintained sole- emption is still needed. ly to assist the contractor in making (vi) When directed, send the reports internal contractor management deci- through proper channels to the CNO sions, such as records maintained by (N09B30). the contractor for use in managing the (f) Discontinued information require- contract; ments. (1) Immediately stop collecting (B) Maintained as internal contractor any category or item of information employee records, even when used in about individuals that is no longer jus- conjunction with providing goods or tified, and when feasible, remove the services to the naval activity; information from existing records. (C) Maintained as training records by (2) Do not destroy records that must an educational organization contracted be kept in accordance with retention by a naval activity to provide training and disposal requirements established when the records of the contract stu- 7 under SECNAVINST 5212.5 , ‘‘Disposal dents are similar to and commingled of Navy and Marine Corps Records.’’ with training records of other students, (g) Review records before disclosing out- such as admission forms, transcripts, side the Federal government. Before dis- and academic counseling and similar closing a record from a system of records; or records to anyone outside the Federal (D) Maintained by a consumer report- government, take reasonable steps to ing agency to which records have been ensure the record which is being dis- disclosed under contract in accordance closed is accurate, relevant, timely, with 31 U.S.C. 952d. and complete for the purposes it is (v) For contracting that is subject to being maintained. this subpart and subpart G of this part, (h) Federal government contractors—(1) naval activities shall publish instruc- Applicability to Federal government con- tions that: tractors. (i) When a naval activity con- tracts for the operation of a system of (A) Furnish Privacy Act guidance to records to accomplish its function, the personnel who solicit, award, or admin- activity must ensure compliance with ister Government contracts; this subpart and subpart G of this part (B) Inform prospective contractors of and 5 U.S.C. 552a. For the purposes of their responsibilities under this sub- the criminal penalties described in 5 part and subpart G of this part and the U.S.C. 552a, the contractor and its em- Department of the Navy Privacy Pro- ployees shall be considered employees gram; of the agency during the performance (C) Establish an internal system for of the contract. reviewing contractor’s performance for (ii) Consistent with Parts 24 and 52 of compliance with the Privacy Act; and the Federal Acquisition Regulation (D) Provide for the biennial review of a random sample of contracts that are 7 Copies available from OPNAV/SECNAV subject to this subpart and subpart G Directives Control Office, Washington Navy of this part. Yard, Building 200, Washington, DC 20350– (2) Contracting procedures. The De- 2000. fense Acquisition Regulatory (DAR)
94
VerDate 25
Council, which oversees the implemen- BASIS ONLY,’’ or some other state- tation of the FAR within the Depart- ment that alerts individuals of the sen- ment of Defense, is responsible for de- sitivity to the records. veloping the specific policies and pro- (4) Administer special administra- cedures for soliciting, awarding, and tive, physical, and technical safeguards administering contracts that are sub- to protect records processed or stored ject to this subpart and subpart G of in an automated data processing or this part and 5 U.S.C. 552a. word processing system to protect (3) Contractor compliance. Naval ac- them from threats unique to those en- tivities shall establish contract sur- vironments. veillance programs to ensure contrac- (b) Records disposal. (1) Dispose of tors comply with the procedures estab- records from systems of records so as lished by the DAR Council under the to prevent inadvertent disclosure. Dis- preceding subparagraph. posal methods are considered adequate (4) Disclosing records to contractors. if the records are rendered unrecogniz- Disclosing records to a contractor for able or beyond reconstruction (i.e., use in performing a contract let by a such as tearing, burning, melting, naval activity is considered a disclo- chemical decomposition, burying, sure within Department of the Navy. pulping, pulverizing, shredding, or mu- The contractor is considered the agent tilation). Magnetic media may be of Department of the Navy when re- cleared by completely erasing, over- ceiving and maintaining the records for writing, or degaussing the tape. that activity. (2) The transfer of large volumes of records (e.g., printouts and computer § 701.106 Safeguarding records in sys- cards) in bulk to a disposal activity tems of records. such as a Defense Reutilization and Establish appropriate administrative, Marketing Office for authorized dis- technical, and physical safeguards to posal is not a disclosure of records, if ensure the records in every system of the volume of records, coding of the in- records are protected from unauthor- formation, or some other factor render ized alteration, destruction, or disclo- it impossible to recognize any personal sure. Protect the records from reason- information about a specific individ- ably anticipated threats or hazards ual. that could result in substantial harm, (3) When disposing or destroying embarrassment, inconvenience, or un- large quantities of records from a sys- fairness to any individual on whom in- tem of records, care must be taken to formation is maintained. ensure that the bulk of the records is (a) Minimum standards. (1) Conduct maintained to prevent easy identifica- risk analysis and management plan- tion of specific records. If such bulk is ning for each system of records. Con- maintained, no special procedures are sider sensitivity and use of the records, required. If bulk is not maintained, or present and projected threats and if the form of the records makes indi- vulnerabilities, and present and pro- vidually identifiable information easily jected cost-effectiveness of safeguards. discernable, dispose of the records in The risk analysis may vary from an in- accordance with § 701.106(b)(1). formal review of a small, relatively in- sensitive system to a formal, fully § 701.107 Criteria for creating, alter- quantified risk analysis of a large, ing, amending and deleting Privacy complex, and highly sensitive system. Act systems of records. (2) Train all personnel operating a (a) Criteria for a new system of records. system of records or using records from A new system of records is one for a system of records in proper record se- which no existing system notice has curity procedures. been published in the FEDERAL REG- (3) Label information exempt from ISTER. If a notice for a system of disclosure under this subpart and sub- records has been canceled or deleted, part G of this part to reflect their sen- and it is determined that it should be sitivity, such as ‘‘FOR OFFICIAL USE reinstated or reused, a new system no- ONLY,’’ ‘‘PRIVACY ACT SENSITIVE: tice must be published in the FEDERAL DISCLOSE ON A NEED-TO-KNOW REGISTER. Advance public notice must
95
VerDate 25
be given before a naval activity may viously were retrieved only by names begin to collect information for or use would be an alteration if the present a new system of records. The following notice failed to indicate retrieval by procedures apply: SSNs. An altered system of records (1) Describe in the record system no- must be published in the FEDERAL REG- tice the contents of the record system ISTER. Submission for an alteration and the purposes and routine uses for must contain a narrative statement, which the information will be used and the specific changes altering the sys- disclosed. tem, and the system of records notice. (2) The public shall be given 30 days (c) Criteria for amending a systems of to comment on any proposed routine records notice. Minor changes to pub- uses before the routine uses are imple- lished system of records notices are mented. considered amendments. All amend- (3) The notice shall contain the date ments should be forwarded to CNO the system of records will become ef- (N09B30) for publication in the FED- fective. ERAL REGISTER. When submitting an (b) Criteria for an alteration to a system amendment to a system of records no- of records notice. A system is considered tice, the naval activity must include a altered when any one of the following description of the specific changes pro- actions occur or is proposed: posed and the system of records notice. (1) A significant increase or change (d) Criteria for deleting a system of in the number or types of individuals records notice. When a system of records about whom records are maintained. is discontinued, incorporated into an- For example, a decision to expand a other system, or determined to be no system of records that originally cov- longer subject to this subpart and sub- ered personnel assigned to only one part G of this part, a deletion notice naval activity to cover personnel at must be published in the FEDERAL REG- several installations would constitute ISTER. The deletion notice shall include an altered system. An increase or de- the system identification number, sys- crease in the number of individuals tem name, and the reason for deleting covered due to normal growth or de- it. If a system is deleted through incor- crease is not an alteration. poration into or merger with another (2) A change that expands the types system, identify the successor system or categories of information main- in the deletion notice. tained. For example, a personnel file that has been expanded to include med- § 701.108 Collecting information about ical records would be an alteration. individuals. (3) A change that alters the purpose (a) Collecting directly from the individ- for which the information is used. In ual. To the greatest extent practicable, order to be an alteration, the change collect information for systems of must be one that is not reasonably in- records directly from the individual to ferred from any of the existing pur- whom the record pertains if the record poses. may be used to make an adverse deter- (4) A change to equipment configura- mination about the individual’s rights, tion (either hardware or software) that benefits, or privileges under the Fed- creates substantially greater use of eral programs. records in the system. For example, (b) Collecting information about indi- placing interactive computer terminals viduals from third persons. It might not at regional offices when the system always be practical to collect all infor- was formerly used only at the head- mation about an individual directly quarters would be an alteration. from that person, such as verifying in- (5) A change in the manner in which formation through other sources for se- records are organized or in the method curity or employment suitability de- by which records are retrieved. terminations; seeking other opinions, (6) Combining record systems due to such as a supervisor’s comments on a reorganization within Department of past performance or other evaluations; the Navy. obtaining the necessary information (7) Retrieving by Social Security directly from the individual would be Numbers (SSNs), records that pre- exceptionally difficult or would result
96
VerDate 25
in unreasonable costs or delays; or, the (6) The Federal Personnel Manual 8 individual requests or consents to con- must be consulted when soliciting tacting another person to obtain the SSNs for use in systems of records information. maintained by the Office of Personnel (c) Soliciting the social security number Management. (SSN). (1) It is unlawful for any Fed- (7) A Department of the Navy activ- eral, State, or local government agency ity may request an individual’s SSN to deny an individual a right, benefit, even though it is not required by Fed- or privilege provided by law because eral statute, or is not for a system of the individual refuses to provide his or records in existence and operating her SSN. However, this prohibition prior to January 1, 1975. However, the does not apply if a Federal law requires separate Privacy Act Statement for that the SSN be provided, or the SSN the SSN, alone, or a merged Privacy is required by a law or regulation Act Statement covering both the SSN adopted before January 1, 1975, to ver- and other items of personal informa- ify the individual’s identity for a sys- tion, must make clear that disclosure tem of records established and in use of the number is voluntary. If the indi- before that date. vidual refuses to disclose his or her (2) Before requesting an individual to SSN, the activity must be prepared to provide the SSN, the individual must identify the individual by alternate be advised whether providing the SSN means. is mandatory or voluntary; by what (d) Contents of Privacy Act Statement. law or other authority the SSN is so- (1) When an individual is requested to licited; and what uses will be made of furnish information about himself/her- the SSN. self for a system of records, a Privacy Act Statement must be provided to the (3) The preceding advice relates only individual, regardless of the method to the SSN. If other information about used to collect the information (i.e., the individual is solicited for a system forms, personal or telephonic inter- of records, a Privacy Act statement view, etc). If the information requested (PAS) also must be provided to him/ will not be included in a system of her. records, a Privacy Act Statement is (4) The notice published in the FED- not required. ERAL REGISTER for each system of (2) The Privacy Act Statement shall records containing SSNs solicited from include the following: individuals must indicate the author- (i) The Federal law or E.O. that au- ity for soliciting the SSNs and whether thorizes collecting the information it is mandatory for the individuals to (i.e., E.O. 9397 authorizes collection of provide their SSNs. E.O. 9397 requires SSNs); federal agencies to use SSNs as numer- (ii) Whether or not it is mandatory ical identifiers for individuals in most for the individual to provide the re- federal records systems, however, it quested information (It is only manda- does not make it mandatory for indi- tory when a Federal law or E.O. of the viduals to provide their SSNs. President specifically imposes a re- (5) When entering military service or quirement to furnish the information civilian employment with the Depart- and provides a penalty for failure to do ment of the Navy, individuals must so. If furnishing information is a condi- provide their SSNs. This is then the in- tion for granting a benefit or privilege dividual’s numerical identifier and is voluntarily sought by the individual, it used to establish personnel, financial, is voluntary for the individual to give medical, and other official records (as the information.); authorized by E.O. 9397). The individ- (iii) The principle purposes for col- uals must be given the notification de- lecting the information; scribed above. Once the individual has (iv) The routine uses that will be provided his or her SSN to establish made of the information (i.e., to whom the records, a notification is not re- quired when the SSN is requested only 8 Copies available from the Office of Per- for identification or to locate the sonnel Management, 1900 E Street, Washing- records. ton, DC 20415.
97
VerDate 25
and why it will be disclosed outside the cess to records in systems of records to Department of Defense); and the system manager or the office des- (v) The possible effects on the indi- ignated in the Department of the Navy vidual if the requested information is compilation of system notices (periodic not provided. Chief of Naval Operations Notes (3) The Privacy Act Statement must (OPNAVNOTEs) 5211, ‘‘Current Privacy appear on the form used to collect the Act Issuances’’). information or on a separate form that (4) Verifying identity. (i) An individual can be retained by the individual col- shall provide reasonable verification of lecting the information. If the informa- identity before obtaining access to tion is collected by means other than a records. form completed by the individual, i.e., (ii) When requesting records in writ- solicited over the telephone, the Pri- ing, naval activities may not insist vacy Act Statement should be read to that a requester submit a notarized the individual and if requested by the signature. The courts have ruled that individual, a copy sent to him/her. an alternative method of verifying There is no requirement that the indi- identity must be established for indi- vidual sign the Privacy Act Statement. viduals who do not have access to no- (e) Format for Privacy Act Statement. tary services. This alternative permits When forms are used to collect infor- requesters to provide an unsworn dec- mation about individuals for a system laration that states ‘‘I declare under of records, the Privacy Act Statement perjury or penalty under the laws of shall appear as follows (listed in the the United States of American that the order of preference): foregoing is true and correct.’’ (1) Immediately below the title of the (iii) When an individual seeks access form, in person, identification can be verified (2) Elsewhere on the front page of the by documents normally carried by the form (clearly indicating it is the Pri- individual (i.e., identification card, vacy Act Statement), driver’s license, or other license, per- (3) On the back of the form with a no- mit or pass normally used for identi- tation of its location below the title of fication purposes). the form, or (iv) When access is requested other (4) On a separate form which the indi- than in writing, identity may be veri- vidual may keep. fied by the individual’s providing mini- mum identifying data such as full § 701.109 Access to records. name, date and place of birth, or other (a) Individual access to records— (1) information necessary to locate the Right of access. Only individuals who record sought. If the information are subjects of records maintained in sought is sensitive, additional identify- systems of records and by whose per- ing data may be required. Telephonic sonal identifiers the records are re- requests should not be honored. trieved have the right of individual ac- (v) Allow an individual to be accom- cess under this subpart and subpart G panied by a person of his or her choice of this part, unless they provide writ- when viewing the record; however, re- ten authorization for their representa- quire the individual to provide written tive to act on their behalf. Legal authorization to have the record dis- guardians or parents acting on behalf cussed in front of the other person. of a minor child also have the right of (vi) Do not deny access to an individ- individual access under this subpart ual who is the subject of the record and subpart G of this part. solely for refusing to divulge his or her (2) Notification of record’s existence. SSN, unless it is the only means of re- Each naval activity shall establish pro- trieving the record or verifying iden- cedures for notifying an individual, in tity. response to his or her request, if a sys- (vii) Do not require the individual to tem of records identified by him/her explain why he or she is seeking access contains a record pertaining to the in- to a record under this subpart and sub- dividual. part G of this part. (3) Individual request for access. Indi- (viii) Only a designated denial au- viduals shall address requests for ac- thority may deny access. The denial
98
VerDate 25
must be in writing and contain the in- incompetent. However, with respect to formation required by § 701.109(d). access by parents and legal guardians (5) Blanket requests not honored. Do to medical records and medical deter- not honor requests from individuals for minations about minors, use the fol- notification and/or access concerning lowing procedures: all Department of the Navy systems of (A) In the United States, the laws of records. In these instances, notify the the state where the records are located individual that requests for notifica- might afford special protection to cer- tion and/or access must be directed to tain medical records (i.e., drug and al- the appropriate system manager for cohol abuse treatment, and psychiatric the particular record system being re- records). The state statutes might quested, as indicated in the periodic apply even if the records are main- Chief of Naval Operations Notes tained by a naval medical facility. (OPNAVNOTEs) 5211, ‘‘Current Privacy (B) For installations located outside Act Issuances’’; and the request must the U.S., the parent or legal guardian either designate the particular system of a minor shall be denied access if all of records to be searched, or provide four of the following conditions are sufficient information for the system met: manager to identify the appropriate (1) The minor at the time of the system. Also, provide the individual treatment or consultation was 15, 16, or with any other information needed for 17 years old; obtaining consideration of his or her (2) The treatment or consultation request. was within a program authorized by (6) Granting individual access to law or regulation to provide confiden- records. (i) Grant the individual access tiality to the minor; to the original record (or exact copy) (3) The minor indicated a desire that without any changes or deletions, the treatment or consultation record other than those made in accordance be handled in confidence and not dis- with § 701.113. closed to a parent or guardian; and (ii) Grant the individual’s request for (4) The parent or legal guardian does an exact copy of the record, upon the not have the written authorization of signed authorization of the individual, the minor or a valid court order grant- and provide a copy to anyone des- ing access. ignated by the individual. In either (ii) A minor or incompetent has the case, the copying fees may be assessed same right of access as any other indi- to the individual pursuant to vidual under this subpart and subpart § 701.109(b). G of this part. The right of access of (iii) If requested, explain any record the parent or legal guardian is in addi- or portion of a record that is not un- tion to that of the minor or incom- derstood, as well as any changes or de- petent. letions. (9) Access to information compiled in (7) Illegible or incomplete records. Do reasonable anticipation of a civil proceed- not deny an individual access solely be- ing. (i) An individual is not entitled cause the physical condition or format under this subpart and subpart G of of the record does not make it readily this part to access information com- available (i.e., when the record is in a piled in reasonable anticipation of a deteriorated state or on magnetic civil action or proceeding. tape). Either prepare an extract or re- (ii) The term ‘‘civil action or pro- copy the document exactly. ceeding’’ includes quasi-judicial and (8) Access by parents and legal guard- pre-trial judicial proceedings, as well ians. (i) The parent of any minor, or as formal litigation. the legal guardian of any individual de- (iii) Section 701.109(9)(i) and (ii) do clared by a court of competent juris- not prohibit access to records compiled diction to be incompetent due to phys- or used for purposes other than litiga- ical or mental incapacity or age, may tion, nor prohibit access to systems of obtain access to the record of the records solely because they are fre- minor or incompetent individual if the quently subject to litigation. The in- parent or legal guardian is acting on formation must have been compiled for behalf or for the benefit of the minor or the primary purpose of litigation.
99
VerDate 25
(10) Personal notes or records not under she failed to cite the appropriate stat- the control of the Department of the ute or instruction. Navy. (i) Certain documents under the (12) Time Limits. Acknowledge re- control of a Department of the Navy quests for access made under Privacy employee and used to assist him/her in Act or this subpart and subpart G of performing official functions are not this part within 10 working days after considered Department of the Navy receipt, and advise the requester of records within the meaning of this sub- your decision to grant/deny access part and subpart G of this part. These within 30 working days. documents are not systems of records (b) Reproduction fees. Normally, only that are subject to this subpart and one copy of any record or document subpart G of this part, if they are: will be provided. Checks or money or- (A) Maintained and discarded solely ders for fees should be made payable to at the discretion of the author; the Treasurer of the United States and (B) Created only for the author’s per- deposited to the miscellaneous receipts sonal convenience; of the treasury account maintained at (C) Not the result of official direction the finance office servicing the activ- or encouragement, whether oral or ity. written; and (1) Fee schedules shall include only (D) Not shown to other persons for the direct cost of reproduction and any reason or filed in agency files. shall not include costs of: (11) Relationship between the Privacy (i) Time or effort devoted to search- Act and FOIA. In some instances, indi- ing for or reviewing the record by viduals requesting access to records naval personnel; pertaining to themselves may not (ii) Fees not associated with the ac- know which Act to cite as the appro- tual cost of reproduction; priate statutory authority. The follow- (iii) Producing a copy when it must ing guidelines are to ensure that the be provided to the individual without individuals receive the greatest degree cost under another regulation, direc- of access under both Acts: tive, or law; (i) Access requests that specifically (iv) Normal postage; state or reasonably imply that they are (v) Transportation of records or per- made under 5 U.S.C. 552 (1988) as sonnel; or amended by the Freedom of Informa- (vi) Producing a copy when the indi- tion Reform Act of 1986, are processed vidual has requested only to review the under Secretary of the Navy Instruc- record and has not requested a copy to tion 5720.42E, ‘‘Department of the Navy keep, and the only means of allowing Freedom of Information Act Program.’’ review is to make a copy (e.g., the (ii) Access requests that specifically record is stored in a computer and a state or reasonably imply that they are copy must be printed to provide indi- made under 5 U.S.C. 552a are processed vidual access, or the naval activity under this subpart and subpart G of does not wish to surrender temporarily this part. the original record for the individual to (iii) Access requests that cite both 5 review). U.S.C. 552a, as amended by the Com- (2) Fee schedules. puter Matching Act of 1988 and 5 U.S.C. (i) Office copy (per page)...... $.10 552 (1988) as amended by the Freedom (ii) Microfiche (per fiche)...... $.25 of Information Reform Act are proc- (3) Fee waivers. Waive fees automati- essed under the Act that provides the cally if the direct cost of reproduction greater degree of access. Inform the re- is less than $15, unless the individual is quester which instruction was used in seeking an obvious extension or dupli- granting or denying access. cation of a previous request for which (iv) Do not penalize the individual he or she was granted a waiver. Deci- access to his or her records otherwise sions to waive or reduce fees that ex- releasable under 5 U.S.C. 552a and peri- ceed $15 are made on a case-by-case odic Chief of Naval Operations Notes basis. (OPNAVNOTEs) 5211, ‘‘Current Privacy (c) Denying individual access. (1) Deny Act Issuances’’, simply because he or the record subject access to requested
100
VerDate 25
record only if it was compiled in rea- to avail themselves of the amendment sonable anticipation of a civil action or procedures established by this subpart proceeding or is in a system of records and subpart G of this part. that has been exempt from the access (1) Right to amend. An individual may provisions of § 701.113. request to amend any record retrieved (2) Deny the individual access only to by his or her personal identifier from a those portions of the record for which system of records, unless the system the denial will serve a legitimate gov- has been exempt from the amendment ernment purpose. An individual may be procedures under this subpart. Amend- refused access for failure to comply ments under this subpart and subpart with established procedural require- G of this part are limited to correcting ments, but must be told the specific factual matters, not matters of opinion reason for the refusal and the proper (i.e., information contained in evalua- access procedures. tions of promotion potential or per- (3) Deny the individual access to his formance appraisals). When records or her medical and psychological sought to be amended are covered by records if it is determined that access another issuance, the administrative could have an adverse affect on the procedures under that issuance must be mental or physical health of the indi- exhausted before using the Privacy vidual. This determination normally Act. In other words, the Privacy Act should be made in consultation with a may not be used to avoid the adminis- medical practitioner. If it is medically trative procedures required by the indicated that access could have an ad- issuance actually covering the records verse mental or physical effect on the in question. individual, provide the record to a (2) In writing. Amendment requests medical practitioner named by the in- shall be in writing, except for routine dividual, along with an explanation of administrative changes, such as change why access without medical super- of address. vision could be harmful to the individ- (3) Content of amendment request. An ual. In any case, do not require the amendment request must include a de- named medical practitioner to request scription of the information to be the record for the individual. If, how- amended; the reason for the amend- ever, the individual refuses or fails to ment; the type of amendment action designate a medical practitioner, ac- sought (i.e., deletion, correction, or ad- cess shall be refused. The refusal is not dition); and copies of available docu- considered a denial for reporting pur- mentary evidence supporting the re- poses under the Privacy Act. quest. (d) Notifying the individual. Written (b) Burden of proof. The individual denial of access must be given to the must provide adequate support for the individual. The denial letter shall in- request. clude: (c) Verifying identity. The individual (1) The name, title, and signature of may be required to provide identifica- a designated denial authority; tion to prevent the inadvertent or in- (2) The date of the denial; tentional amendment of another’s (3) The specific reason for the denial, record. Use the verification guidelines citing the appropriate subsections of 5 provided in § 701.109(a)(4). U.S.C. 552a or this subpart and subpart (d) Limits on amending judicial and G of this part authorizing the denial; quasi-judicial evidence and findings. This (4) The individual’s right to appeal subpart and subpart G of this part do the denial within 60 calendar days of not permit the alteration of evidence the date the notice is mailed; and presented in the course of judicial or (5) The title and address of the review quasi-judicial proceedings. Amend- authority. ments to such records must be made in accordance with procedures established § 701.110 Amendment of records. for such proceedings. This subpart and (a) Individual review and amendment. subpart G of this part do not permit a Encourage individuals to review peri- collateral attack on a judicial or quasi- odically, the information maintained judicial finding; however, this subpart about them in systems of records, and and subpart G of this part may be used
101
VerDate 25
to challenge the accuracy of recording (1) Those sections of 5 U.S.C. 552a or the finding in a system of records. this subpart and subpart G of this part (e) Standards for amendment request upon which the denial is based; determinations. The record which the in- (2) His or her right to appeal to the dividual requests to be amended must head of the activity for an independent meet the recordkeeping standards es- review of the initial denial; tablished in § 701.105. The record must (3) The procedures for requesting an be accurate, relevant, timely, com- appeal, including the title and address plete, and necessary. If the record in of the official to whom the appeal its present state does not meet each of should be sent; and the criteria, grant the amendment re- (4) Where the individual can receive quest to the extent necessary to meet assistance in filing the appeal. them. (i) Requests for amending OPM records. (f) Time limits. Within 10 working days The records in an OPM government- of receiving an amendment request, the wide system of records are only tempo- systems manager shall provide the in- rarily in the custody of naval activi- dividual a written acknowledgement of ties. Requests for amendment of these the request. If action on the amend- records must be processed in accord- ment request is completed within the ance with OPM Regulations and the 10 working days and the individual is Federal Personnel Manual. The denial so informed, no separate acknowledg- authority may deny a request, but all ment is necessary. The acknowledg- denials are subject to review by the As- ment must clearly identify the request and advise the individual when to ex- sistant Director for Workforce Infor- pect notification of the completed ac- mation, Personnel Systems Oversight tion. Only under exceptional cir- Group, Office of Personnel Manage- cumstances should more than 30 work- ment, 1900 E Street, NW, Washington, ing days be required to complete the DC 20415. action on an amendment request. (j) Individual’s statement of disagree- (g) Granting an amendment request in ment. (1) If the review authority refuses whole or in part—(1) Notify the requester. to amend the record as requested, the To the extent the amendment request individual may submit a concise state- is granted, the systems manager shall ment of disagreement listing the rea- notify the individual and make the ap- sons for disagreeing with the refusal to propriate amendment. amend. (2) Notify previous recipients. Notify (2) If possible, incorporate the state- all previous recipients of the informa- ment of disagreement into the record. tion (as reflected in the disclosure ac- If that is not possible, annotate the counting record) that the amendment record to reflect that the statement has been made and provide each a copy was filed and maintain the statement of the amended record. Recipients who so that it can be readily obtained when are known to be no longer retaining the disputed information is used or dis- the record need not be advised of the closed. amendment. If it is known that other (3) Furnish copies of the statement of naval activities, DoD components, or disagreement to all individuals listed Federal agencies have been provided on the disclosure accounting form (ex- the information that now requires cept those known to be no longer re- amendment, or if the individual re- taining the record), as well as to all quests that these agencies be notified, other known holders of copies of the provide the notification of amendment record. even if those activities or agencies are (4) Whenever the disputed informa- not listed on the disclosure accounting tion is disclosed for any purpose, en- form. sure that the statement of disagree- (h) Denying an amendment request in ment also is used or disclosed. whole or in part. If the amendment re- (k) Department of the Navy statement quest is denied in whole or in part, of reasons. (1) If the individual files a promptly notify the individual in writ- statement of disagreement, the naval ing. Include in the notification to the activity may file a statement of rea- individual the following: sons containing a concise summary of
102
VerDate 25
the activity’s reasons for denying the (2) If the record pertains to the em- amendment request. ployment of a present or former Navy (2) The statement of reasons shall and Marine Corps civilian employee, contain only those reasons given to the such as Navy or Marine Corps civilian individual by the appellate official and personnel records or an employee’s shall not contain any comments on the grievance or appeal file, to the General individual’s statement of disagree- Counsel, Navy Department, Washing- ment. ton, DC 20360–5110. (3) At the discretion of the naval ac- (3) If the record pertains to a present tivity, the statement of reasons may be or former military member’s fitness re- disclosed to those individuals, activi- ports or performance evaluations to ties, and agencies that receive the the Assistant Secretary of the Navy statement of disagreement. (Manpower and Reserve Affairs), Navy Department, Washington, DC 20350– § 701.111 Privacy Act appeals. 1000. (4) All other records dealing with (a) The follow- How to file an appeal. present or former military members to ing guidelines shall be followed by indi- the Judge Advocate General, Navy De- viduals wishing to appeal a denial of partment, 200 Stovall Street, Alexan- notification, access, or amendment of dria, VA 22332–2400. records. (d) Appeal procedures. (1) If the appeal (1) The appeal must be received by is granted, the review authority shall the cognizant review authority (i.e., advise the individual that his or her ASN (M&RA), NJAG, OGC, or OPM) appeal has been granted and provide within 60 calendar days of the date of access to the record being sought. the response. (2) If the appeal is denied totally or (2) The appeal must be in writing and in part, the appellate authority shall requesters should provide a copy of the advise the reason(s) for denying the ap- denial letter and a statement of their peal, citing the appropriate subsections reasons for seeking review. of 5 U.S.C. 552a or this subpart and sub- (b) Time of receipt. The time limits for part G of this part that apply; the date responding to an appeal commence of the appeal determination; the name, when the appeal reaches the office of title, and signature of the appellate au- the review authority having jurisdic- thority; and a statement informing the tion over the record. Misdirected ap- requester of his or her right to seek ju- peals should be referred expeditiously dicial relief in the Federal District to the proper review authority. Court. (c) Review authorities. ASN (M&RA), (e) Final action, time limits and docu- NJAG, and OGC are authorized to adju- mentation. (1) The written appeal notifi- dicate appeals made to SECNAV. NJAG cation granting or denying access is and OGC are further authorized to dele- the final naval activity action on the gate this authority to a designated As- initial request for access. sistant NJAG and the Principal Deputy (2) All appeals shall be processed General or Deputy General Counsel, re- within 30 working days of receipt, un- spectively, under such terms and condi- less the appellate authority finds that tions as they deem appropriate. an adequate review cannot be com- (1) If the record is from a civilian Of- pleted within that period. If additional ficial Personnel Folder or is contained time is needed, notify the applicant in on any other OPM forms, send the ap- writing, explaining the reason for the peal to the Assistant Director for delay and when the appeal will be com- Workforce Information, Personnel Sys- pleted. tems and Oversight Group, Office of (f) Denial of appeal by activity’s failure Personnel Management, 1900 E Street, to act. An individual may consider his NW, Washington, DC 20415. Records in or her appeal denied if the appellate all systems of records maintained in authority fails to: accordance with the OPM government- (1) Take final action on the appeal wide systems notices are only in the within 30 working days of receipt when temporary custody of the Department no extension of time notice was given; of the Navy. or
103
VerDate 25
(2) Take final action within the pe- the record in the performance of their riod established by the notice to the duties, provided this use is compatible appellate authority of the need for an with the purpose for which the record extension of time to complete action is maintained. This provision is based on the appeal. on the ‘‘need to know’’ concept. (i) For example, this may include dis- § 701.112 Disclosure of records. closure to personnel managers, review (a) Conditions of disclosure. (1) 5 U.S.C. boards, discipline officers, courts-mar- 552a prohibits an agency from disclos- tial personnel, medical officers, inves- ing any record contained in a system of tigating officers, and representatives of records to any person or agency, except the Judge Advocate General, Auditor when the record subject gives written General, Naval Inspector General, or consent for the disclosure or when one the Naval Investigative Service, who of the 12 conditions listed below in this require the information in order to dis- subsection applies. charge their official duties. Examples (2) Except for disclosures made under of personnel outside the Department of 5 U.S.C. 552 (1988) as amended by the the Navy who may be included are: Freedom of Information Reform Act of Personnel of the Joint Staff, Armed 1986 and Secretary of the Navy Instruc- Forces Entrance and Examining Sta- tion 5720.42E, ‘‘Department of the Navy tions, Defense Investigative Service, or Freedom of Information Act Program,’’ the other military departments, who before disclosing any record from a sys- require the information in order to dis- tem of records to any recipient other charge an official duty. than a Federal agency, make reason- (ii) It may also include the transfer able efforts to ensure the record is ac- of records between naval components curate, relevant, timely, and complete and non-DoD agencies in connection for Department of the Navy purposes. with the Personnel Exchange Program Records discovered to have been im- (PEP) and interagency support agree- properly filed in the system of records ments. Disclosure accountings are not should be removed before disclosure. required for intra-agency disclosure (i) If validation cannot be obtained and disclosures made in connection from the record itself, the naval activ- with interagency support agreements ity may contact the record subject (if or the PEP. Although some disclosures reasonably available) to verify the ac- authorized by this paragraph might curacy, timeliness, completeness, and relevancy of the information. also meet the criteria for disclosure (ii) If validation cannot be obtained under other exceptions specified in the from the record and the record subject following paragraphs of this section, is not reasonably available, advise the they should be treated under this para- recipient that the information is be- graph for disclosure accounting pur- lieved to be valid as of a specific date poses. and reveal any factors bearing on the (2) Disclosures required by the FOIA. (i) validity of the information. A record must be disclosed if required (b) Nonconsensual disclosures. 5 U.S.C. by 5 U.S.C. 552 (1988) as amended by the 552a provides 12 instances when a Freedom of Information Reform Act of record in a system of records may be 1986, which is implemented by Sec- disclosed without the written consent retary of the Navy Instruction 5720.42E, of the record subject: ‘‘Department of the Navy Freedom of (1) Disclosures within the Department Information Act Program.’’ of Defense. For purposes of disclosing (ii) 5 U.S.C. 552 (1988) as amended by records, the Department of Defense is the Freedom of Information Reform considered a single agency; hence, a Act of 1986 and Secretary of the Navy record may be disclosed to any officer Instruction 5720.42E, ‘‘Department of or employee in the Department of De- the Navy Freedom of Information Act fense (including private contractor per- Program’’ require that records be made sonnel who are engaged to perform available to any person requesting services needed in connection with the them in writing, unless the record is operation of a system of records for a exempt from disclosure under one of DoD component), who have a need for the nine FOIA exemptions. Therefore,
104
VerDate 25
if a record is not exempt from disclo- (iv) Records or information from in- sure, it must be provided to the re- vestigatory records, including person- quester. nel security investigatory records, are (iii) Certain records, such as person- exempt from disclosure under the nel, medical, and similar files, are ex- broader standard of ‘‘an unwarranted empt from disclosure under exemption invasion of personal privacy’’ found in (b)(6) of 5 U.S.C. 552 (1988) as amended exemption (b)(7)(C) of 5 U.S.C. 552. This by the Freedom of Information Act Re- broader standard applies only to form Act of 1986. Under that exemp- records or information compiled for tion, disclosure of information pertain- law enforcement purposes. ing to an individual can be denied only (v) A disclosure under 5 U.S.C. 552 when the disclosure would be a clearly about military members must be in ac- unwarranted invasion of personal pri- cordance with Secretary of the Navy vacy. The first step is to determine Instruction 5720.42E, ‘‘Department of whether a viable personal privacy in- the Navy Freedom of Information Act terest exists in these records involving Program’’, but the following informa- an identifiable living person. The sec- tion normally may be disclosed from ond step is to consider how disclosure military personnel records (except for those personnel assigned to sensitive or would benefit the general public in routinely deployable units, or located light of the content and context of the in a foreign territory), without a clear- information in question. The third step ly unwarranted invasion of personal is to determine whether the identified privacy: Full name, rank, date of rank, public interests qualify for consider- base pay, past duty stations, present ation. The fourth step is to balance the duty station and future duty station (if personal privacy interests against the finalized), unless the stations have qualifying public interest. Numerous been determined by the Department of factors must be considered such as: The the Navy to be sensitive, routinely nature of the information to be dis- deployable, or located in a foreign ter- closed (i.e., Do individuals normally ritory, office or duty telephone num- have an expectation of privacy in the ber, source of commission, promotion type of information to be disclosed?); sequence number, awards and decora- importance of the public interest tions, attendance at professional mili- served by the disclosure and prob- tary schools, and duty status at any ability of further disclosure which may given time. result in an unwarranted invasion of (vi) The following information nor- privacy; relationship of the requester mally may be disclosed from civilian to the public interest being served; employee records about CONUS em- newsworthiness of the individual to ployees: Full name, present and past whom the information pertains (i.e., position titles and occupational series, high ranking officer, public figure); de- present and past grades, present and gree of sensitivity of the information past annual salary rates (including per- from the standpoint of the individual formance awards or bonuses, incentive or the individual’s family, and its po- awards, merit pay amount, Meritorious tential for being misused to the harm, and Distinguished Executive Ranks, embarrassment, or inconvenience of and allowances and differentials), past the individual or the individual’s fam- duty stations, present duty station and ily; the passage of time since the event future duty station (if finalized), in- which is the topic of the record (i.e., to cluding room numbers, shop designa- disclose that an individual has been ar- tions, or other identifying information rested and is being held for trial by regarding buildings or places of em- court-martial is normally permitted, ployment, unless the duty stations while to disclose an arrest which did have been determined by the Depart- not result in conviction might not be ment of the Navy to be sensitive, rou- permitted after the passage of time); tinely deployable, or located in a for- and the degree to which the informa- eign territory, position descriptions, tion is already in the public domain or identification of job elements, and is already known by the particular re- those performance standards (but not quester. actual performance appraisals) that
105
VerDate 25
the disclosure of which would not records of trial) are releasable. How- interfere with law enforcement pro- ever, information regarding summary grams or severely inhibit Department courts-martial and non-judicial punish- of the Navy effectiveness. ment are generally not releasable. The (viii) Disclosure of home addresses balancing of interests must be done. It and home telephone numbers normally is possible that in a particular case, in- is considered a clearly unwarranted in- formation regarding non-judicial pun- vasion of personal privacy and is pro- ishment should be disclosed pursuant hibited. However, they may be dis- to a FOIA request (i.e., the facts lead- closed if the individual has consented ing to a nonjudicial punishment are to the disclosure; the disclosure is re- particularly newsworthy or the case in- quired by the FOIA; the disclosure is volves a senior official abusing the required by another law, such as 42 public trust through office-related mis- U.S.C. 653, which provides assistance to conduct, such as embezzlement). An- states in locating parents who have de- nouncement of nonjudicial punishment faulted on child support payments, or dispositions under JAGMAN, sub- the collection of alimony, and to state section 0107, is a proper exercise of and local tax authorities for the pur- command authority and not a release pose of enforcing tax laws. However, of information under FOIA or this sub- care must be taken prior to release to part and subpart G of this part. Excep- ensure that a written record is pre- tions to this policy must be coordi- pared to document the reasons for the nated with CNO (N09B30) or CMC (MI– release determination. 3) prior to responding to requesters, in- (A) When compiling home addresses cluding all requests for this type of in- and telephone numbers, the individual formation from members of Congress. may be offered the option of authoriz- (3) Disclosures for established routine ing disclosure of the information with- uses. (i) Records may be disclosed out- out further consent for specific pur- side the Department of the Navy if the poses, such as locator services. In that disclosure is for an established routine case, the information may be disclosed use. for the stated purpose without further (ii) A routine use shall: consent. If the information is to be dis- (A) Be compatible with and related to closed for any other purpose, a signed the purpose for which the record was consent permitting the additional dis- created; closure must be obtained from the indi- (B) Identify the persons or organiza- vidual. tions to whom the record may be dis- (B) Before listing home addresses and closed; telephone numbers in Department of (C) Identify specifically the uses for the Navy telephone directories, give which the information may be em- the individual the opportunity to ployed by the receiving person or orga- refuse such a listing. If the individual nization; and requests that the home address or tele- (D) Have been published previously in phone number not be listed in the di- the FEDERAL REGISTER. rectory, do not assess any additional (iii) A routine use shall be estab- fee associated with maintaining an un- lished for each user of the information listed number for government-owned outside the Department of the Navy telephone services. who needs the information for an offi- (C) The sale or rental of lists of cial purpose. names and addresses is prohibited un- (iv) Routine uses may be established, less such action is specifically author- discontinued, or amended without the ized by Federal law. This does not pro- consent of the individuals to whom the hibit the disclosure of names and ad- records pertain. However, new and dresses made under Secretary of the amended routine uses must be pub- Navy Instruction 5720.42E, ‘‘Depart- lished in the FEDERAL REGISTER at ment of the Navy Freedom of Informa- least 30 days before the information tion Act Program.’’ may be disclosed under their provi- (D) In response to FOIA requests, in- sions. formation concerning special and gen- (v) In addition to the routine uses es- eral courts-martial results (e.g., tablished by the Department of the
106
VerDate 25
Navy for each system of records, com- (iii) Records transferred to a Federal mon ‘‘Blanket Routine Uses,’’ applica- Records Center operated by the Na- ble to all record systems maintained tional Archives and Records Adminis- with the Department of the Navy, have tration for storage are not within this been established. These ‘‘Blanket Rou- category. Those records continue to be tine Uses’’ are published at the begin- maintained and controlled by the ning of the Department of the Navy’s transferring naval activity. The Fed- FEDERAL REGISTER compilation of eral Records Center is considered the record systems notices rather than at agent of Department of the Navy and each system notice and are also re- the disclosure is made under flected in periodic Chief of Naval Oper- § 701.112(b)(1). ations Notes (OPNAVNOTEs) 5211, (7) Disclosures when requested for law ‘‘Current Privacy Act Issuances.’’ Un- enforcement purposes. (i) A record may less a system notice specifically ex- be disclosed to another agency or an cludes a system of records from a instrumentality of any governmental ‘‘Blanket Routine Use,’’ all ‘‘Blanket jurisdiction within or under the con- Routine Uses’’ apply to that system. trol of the U.S. for a civil or criminal (vi) If the recipient has not been law enforcement activity if: identified in the FEDERAL REGISTER or (A) The civil or criminal law enforce- if the recipient, though identified, in- ment activity is authorized by law (fed- tends to employ the information for a eral, state or local); and purpose not published in the FEDERAL (B) The head of the agency (or his or REGISTER, the written consent of the her designee) has made a written re- individual is required before the disclo- quest to the naval activity specifying sure can be made. the particular record or portion desired (4) Disclosures to the Bureau of the and the law enforcement purpose for Census. Records may be disclosed to which it is sought. the Bureau of the Census for purposes (ii) Blanket requests for any and all of planning or carrying out a census, records pertaining to an individual survey, or related activities authorized shall not be honored. The requesting by 13 U.S.C. 8. agency must specify each record or (5) Disclosures for statistical research or portion desired and how each relates to reporting. Records may be disclosed to a the authorized law enforcement activ- recipient for statistical research or re- ity. porting if: (iii) If a naval activity discloses a (i) Prior to the disclosure, the recipi- record outside the Department of De- ent has provided adequate written as- fense for law enforcement purposes surance that the records shall be used without the individual’s consent and solely for statistical research or re- without an adequate written request, porting; and the disclosure must be under an estab- (ii) The records are transferred in a lished routine use, such as the ‘‘Blan- form that does not identify individuals. ket Routine Use’’ for law enforcement. (6) Disclosures to the National Archives (iv) Disclosure to foreign law enforce- and Records Administration. (i) Records ment agencies is not governed by the may be disclosed to the National Ar- provisions of 5 U.S.C. 552a and this chives and Records Administration for paragraph, but may be made only evaluation to determine whether the under established ‘‘Blanket Routine records have sufficient historical or Uses,’’ routine uses published in the in- other value to warrant preservation by dividual record system notice, or to the Federal government. If preserva- other governing authority. tion is warranted, the records will be (8) Disclosure to protect the health or retained by the National Archives and safety of an individual. Disclosure may Record Administration, which becomes be made under emergency conditions the official owner of the records. involving circumstances affecting the (ii) Records may be disclosed to the health and safety of an individual (i.e., National Archives and Records Admin- when the time required to obtain the istration to carry out records manage- consent of the individual to whom the ment inspections required by Federal records pertain might result in a delay law. which could impair the health or safety
107
VerDate 25
of a person) provided notification of (GAO). Records may be disclosed to the the disclosure is sent to the record sub- Comptroller General of the U.S., or au- ject. Sending the notification to the thorized representative, in the course last known address is sufficient. In in- of the performance of the duties of the stances where information is requested GAO. by telephone, an attempt will be made (11) Disclosures under court orders. (i) to verify the inquirer’s and medical fa- Records may be disclosed under the cility’s identities and the caller’s tele- order of a court of competent jurisdic- phone number. The requested informa- tion. tion, if then considered appropriate and (ii) When a record is disclosed under of an emergency nature, may be pro- this provision and the compulsory legal vided by return call. process becomes a matter of public (9) Disclosures to Congress. record, make reasonable efforts to no- (i) A record may be disclosed to ei- tify the individual to whom the record ther House of Congress at the request pertains. Notification sent to the last of either the Senate or House of Rep- known address of the individual is suf- resentatives as a whole. ficient. If the order has not yet become (ii) A record also may be disclosed to a matter of public record, seek to be any committee, subcommittee, or joint advised as to when it will become pub- committee of Congress if the disclosure lic. Neither the identity or the party to pertains to a matter within the legisla- whom the disclosure was made nor the tive or investigative jurisdiction of the purpose of the disclosure shall be made committee, subcommittee, or joint available to the record subject unless committee. the court order has become a matter of (iii) Disclosure may not be made to a public record. Member of Congress requesting in his (iii) The court order must bear the or her individual capacity. However, signature of a federal, state, or local for Members of Congress making in- judge. Orders signed by court clerks or quiries on behalf of individuals who are attorneys are not deemed to be orders subjects of records, a ‘‘Blanket Routine Use’’ has been established to permit of a court of competent jurisdiction. A disclosures to individual Members of photocopy of the order, regular on its Congress. face, will be sufficient evidence of the (A) When responding to a congres- court’s exercise of its authority of the sional inquiry made on behalf of a con- minimal requirements of 9 stituent by whose identifier the record SECNAVINST 5820.8A , ‘‘Release of Of- is retrieved, there is no need to verify ficial Information for Litigation Pur- that the individual has authorized the poses and Testimony by Department of disclosure to the Member of Congress. the Navy Personnel.’’ (B) The oral or written statement of (12) Disclosures to consumer reporting a Congressional staff member is suffi- agencies. Certain information may be cient to establish that a request has disclosed to consumer reporting agen- been received from the individual to cies (i.e., credit reference companies whom the record pertains. such as TRW and Equifax, etc.) as de- (C) If the constituent inquiry is made fined by the Federal Claims Collection on behalf of an individual other than Act of 1966 (31 U.S.C. 952d). Under the the record subject, provide the Member provisions of that Act, the following of Congress only that information re- information may be disclosed to a con- leasable under 5 U.S.C. 552. Advise the sumer reporting agency: Member of Congress that the written (i) Name, address, taxpayer identi- consent of the record subject is re- fication number (SSN), and other infor- quired before additional information mation necessary to establish the iden- may be disclosed. Do not contact the tity of the individual; record subject to obtain consent for the (ii) The amount, status, and history disclosure to the Member of Congress of the claim; and unless the Congressional office specifi- cally requests it be done. 9 Copies available from the Judge Advocate (10) Disclosures to the Comptroller Gen- General, Navy Department, (Code 34), 200 eral for the General Accounting Office Stovall Street, Alexandria, VA 22332–2400.
108
VerDate 25
(iii) The agency or program under (5) Do not honor requests from com- which the claim arose. 31 U.S.C. 952d mercial enterprises for official evalua- specifically requires that the FEDERAL tions of personal characteristics such REGISTER notice for the system of as personal financial habits. records from which the information (d) Disclosure of Health Care Records to will be disclosed indicate that the in- the Public. This paragraph applies to formation may be disclosed to a con- disclosure of information to the news sumer reporting agency. media and the public concerning indi- (c) Disclosures to commercial enter- viduals treated or hospitalized in De- prises. Records may be disclosed to partment of the Navy medical facilities commercial enterprises only under the and, when the cost of care is paid by criteria established by Secretary of the the Department of the Navy, in non- Navy Instruction 5720.42E and 42 U.S.C. Federal facilities. 653, Parent Locator Service for En- (1) Disclosures without the individ- forcement of Child Support. ual’s consent. Normally, the following (1) Any information required to be information may be disclosed without disclosed by Secretary of the Navy In- the individual’s consent: struction 5720.42E and 42 U.S.C. 653, (i) Information required to be re- Parent Locator Service for Enforce- leased by Secretary of the Navy In- ment of Child Support may be dis- struction 5720.42E and OPM Regula- closed to a requesting commercial en- tions and the Federal Personnel Man- terprise. ual, as well as the information listed in § 701.112(b)(2)(v) for military personnel (2) Commercial enterprises may and in § 701.112(b)(2). present a consent statement signed by (ii) For civilian employees; and the individual indicating specific con- (iii) General information concerning ditions for disclosing information from medical conditions, i.e., date of admis- a record. Statements such as the fol- sion or disposition; present medical as- lowing, if signed by the individual, are sessment of the individual’s condition considered sufficient to authorize the if the medical practitioner has volun- disclosure: I hereby authorize the De- teered the information, i.e., the indi- partment of the Navy to verify my SSN vidual’s condition presently is (stable) or other identifying information and to (good) (fair) (serious) (critical), and the disclose my home address and tele- patient is (conscious) (semi-conscious) phone number to authorized represent- (unconscious). atives of (name of commercial enter- (2) Disclosures with the individual’s prise) to be used in connection with my consent. With the individual’s informed commercial dealings with that enter- consent, any information about the in- prise. All information furnished will be dividual may be disclosed. If the indi- used in connection with my financial vidual is a minor or has been declared relationship with (name of commercial incompetent by a court of competent enterprise). jurisdiction, the parent of the minor or (3) When a consent statement as de- appointed legal guardian of the incom- scribed in the preceding subsection is petent may give consent on behalf of presented, provide the information to the individual. the commercial enterprise, unless the (e) Disclosure of Personal Information disclosure is prohibited by another reg- on Group/Bulk Orders. Do not use per- ulation or Federal law. sonal information including complete (4) Blanket consent statements that SSNs, home addresses and phone num- do not identify the Department of De- bers, dates of birth, etc., on group/bulk fense or Department of the Navy, or orders. This personal information that do not specify exactly the infor- should not be posted on lists that ev- mation to be disclosed, may be honored eryone listed on the orders sees. Such a if it is clear that the individual, in disclosure of personal information vio- signing the consent statement, was lates the Privacy Act and this subpart seeking a personal benefit (i.e., loan for and subpart G of this part. a house or automobile) and was aware (f) Disclosure Accounting. Keep an ac- of the type of information necessary to curate record of all disclosures made obtain the benefit sought. from a record (including those made
109
VerDate 25
with the consent of the individual) ex- record, as this will ensure compliance cept those made to DoD personnel for with § 701.112(f). use in performing their official duties; and those made under the FOIA. Dis- § 701.113 Exemptions. closure accounting is to permit the in- (a) Using exemptions. No system of dividual to determine what agencies or records is automatically exempt from persons have been provided informa- all provisions of 5 U.S.C. 552a. A system tion from the record, enable Depart- of records is exempt from only those ment of the Navy activities to advise provisions of 5 U.S.C. 552a that are prior recipients of the record of any identified specifically in the exemption subsequent amendments or statements rule for the system. Subpart G of this of dispute concerning the record, and part contains the systems designated provide an audit trial of Department of as exempt, the types of exemptions the Navy’s compliance with 5 U.S.C. claimed, the authority and reasons for 552a. invoking the exemptions and the provi- (1) Disclosure accountings shall con- sions of 5 U.S.C. 552a from which each tain the date of the disclosure; a de- system has been exempt. Exemptions scription of the information disclosed; are discretionary on the part of De- the purpose of the disclosure; and the partment of the Navy and are not effec- name and address of the person or tive until published as a final rule in agency to whom the disclosure was the FEDERAL REGISTER. The naval ac- made. tivity maintaining the system of (2) The record subject has the right of records shall make a determination access to the disclosure accounting ex- that the system is one for which an ex- cept when the disclosure was made at emption may be established and then the request of a civil or criminal law propose an exemption rule for the sys- enforcement agency under tem. Submit the proposal to CNO § 701.112(b)(7); or when the system of (N09B30) for approval and publication records has been exempted from the re- in the FEDERAL REGISTER. quirement to provide access to the dis- (b) Types of exemptions. There are two closure accounting. types of exemptions permitted by 5 (g) Methods of disclosure accounting. U.S.C. 552a. Since the characteristics of various (1) General exemptions. Those that au- records maintained within the Depart- thorize the exemption of a system of ment of the Navy vary widely, no uni- records from all but specifically identi- form method for keeping disclosure ac- fied provisions of 5 U.S.C. 552a. countings is prescribed. The primary (2) Specific exemptions. Those that criteria are that the selected method allow a system of records to be exempt be one which will: from only a few designated provisions (1) Enable an individual to ascertain of 5 U.S.C. 552a. what persons or agencies have received (c) Establishing exemptions. (1) 5 U.S.C. disclosures pertaining to him/her; 552a authorizes the Secretary of the (2) Provide a basis for informing re- Navy to adopt rules designating eligi- cipients of subsequent amendments or ble systems of records as exempt from statements of dispute concerning the certain requirements. The Secretary of record; and the Navy has delegated the CNO (3) Provide a means to prove, if nec- (N09B30) to make a determination that essary that the activity has complied the system is one for which an exemp- with the requirements of 5 U.S.C. 552a tion may be established and then pro- and this subpart and subpart G of this pose and establish an exemption rule part. for the system. No system of records (h) Retention of Disclosure Accounting. within Department of the Navy shall Maintain a disclosure accounting of be considered exempt until the CNO the life of the record to which the dis- (N09B30) has approved the exemption closure pertains, or 5 years after the and an exemption rule has been pub- date of the disclosure, whichever is lished as a final rule in the FEDERAL longer. Disclosure accounting records REGISTER. A system of records is ex- are normally maintained with the empt from only those provisions of 5
110
VerDate 25
U.S.C. 552a that are identified specifi- shall apply. If that system of records cally in the Department of the Navy has not been exempted, the record shall exemption rule for the system. not be exempt from any provisions of 5 (2) No exemption may be established U.S.C. 552a. for a system of records until the sys- (3) A record accidentally misfiled tem itself has been established by pub- into a system of records is governed by lishing a notice in the FEDERAL REG- the published notice and rules for the ISTER, at least 30 days prior to the ef- system of records in which it actually fective date, describing the system. should have been filed. This allows interested persons an op- (f) General exemptions—(1) Central In- portunity to comment. An exemption telligence Agency (CIA). The Depart- may not be used to deny an individual ment of the Navy is not authorized to access to information that he or she establish an exemption for records can obtain under Secretary of the Navy maintained by the CIA under sub- Instruction 5720.42E, ‘‘Department of section (j)(1) of 5 U.S.C. 552a. the Navy Freedom of Information Act Program.’’ (2) Law enforcement. (i) The general (d) Exemption for classified material. exemption provided by subsection (j)(2) All systems of records maintained by of 5 U.S.C. 552a may be established to the Department of the Navy shall be protect criminal law enforcement exempt under section (k)(1) of 5 U.S.C. records maintained by Department of 552a, to the extent that the systems the Navy. contains any information properly (ii) To be eligible for the (j)(2) exemp- classified under E.O. 12958 and that is tion, the system of records must be required by that E.O. to be kept secret maintained by an element that per- in the interest of national defense or forms, as one of its principal functions, foreign policy. This exemption is appli- the enforcement of criminal laws. The cable to parts of all systems of records Naval Investigative Service, Naval In- including those not otherwise specifi- spector General, and military police cally designated for exemptions herein activities qualify for this exemption. which contain isolated items of prop- (iii) Criminal law enforcement in- erly classified information. cludes police efforts to detect, prevent, control, or reduce crime, or to appre- NOTE: Department of the Navy Privacy Act systems of records which contain classified hend criminals, and the activities of information automatically qualify for a prosecution, court, correctional, proba- (k)(1) exemption, without establishing an ex- tion, pardon, or parole authorities. emption rule. (iv) Information that may be pro- (e) Exempt records in nonexempt sys- tected under the (j)(2) exemption in- tems. (1) An exemption rule applies to cludes: the system of records for which it was (A) Information compiled for the pur- established. If a record from an exempt pose of identifying criminal offenders system is incorporated intentionally and alleged criminal offenders consist- into a system that has not been ex- ing of only identifying data and nota- empt, the published notice and rules tions of arrests; the nature and disposi- for the nonexempt system will apply to tion of criminal charges; and sentenc- the record and it will not be exempt ing, confinement, release, parole, and from any provisions of 5 U.S.C. 552a. probation status; (2) A record from one component’s (B) Information compiled for the pur- (i.e., Department of the Navy) exempt- pose of a criminal investigation, in- ed system that is temporarily in the cluding reports of informants and in- possession of another component (i.e., vestigators, and associated with an Army) remains subject to the published identifiable individual; and system notice and rules of the originat- (C) Reports identifiable to an individ- ing component’s (i.e., Department of ual, compiled at any stage of the en- the Navy). However, if the non-origi- forcement process, from arrest, appre- nating component incorporates the hension, indictment, or preferral of record into its own system of records, charges through final release from the the published notice and rules for the supervision that resulted from the system into which it is incorporated commission of a crime.
111
VerDate 25
(v) The (j)(2) exemption does not he or she shall be given access to the apply to: information, except for the informa- (A) Investigative records maintained tion that would identify a confidential by a naval activity having no criminal source (see § 701.113(h), ‘‘confidential law enforcement duties as one of its source’’). The (k)(2) exemption, when principle functions, or established, allows limited protection (B) Investigative records compiled by on investigative records maintained for any element concerning individual’s use in personnel and administrative ac- suitability, eligibility, or qualification tions. for duty, employment, or access to (3) (k)(3) exemption: Records main- classified information, regardless of tained in connection with providing the principle functions of the naval ac- tivity that compiled them. protective services to the President of (vi) The (j)(2) exemption established the United States and other individuals for a system of records maintained by under 18 U.S.C. 3056. a criminal law enforcement activity (4) (k)(4) exemption: Records required cannot protect law enforcement by Federal law to be maintained and records incorporated into a nonexempt used solely as statistical records that system of records or any system of are not used to make any determina- records maintained by an activity not tion about an identifiable individual, principally tasked with enforcing except as provided by 13 U.S.C. 8. criminal laws. All system managers, (5) (k)(5) exemption: Investigatory therefore, are cautioned to comply material compiled solely for the pur- strictly with Department of the Navy pose of determining suitability, eligi- regulations or instructions prohibiting bility, or qualifications for Federal ci- or limiting the incorporation of crimi- vilian employment, military service, nal law enforcement records into sys- Federal contracts, or access to classi- tems other than those maintained by fied information, but only to the ex- criminal law enforcement activities. tent such material would reveal the (g) Specific exemptions. Specific ex- identity of a confidential source. (See emptions permit certain categories of § 701.113(h), ‘‘confidential source’’). This records to be exempted from specific exemption allows protection of con- provisions of 5 U.S.C. 552a. Subsections (k)(1)-(7) of 5 U.S.C. 552a allow exemp- fidential sources in background inves- tions for seven categories of records. tigations, employment inquiries, and To be eligible for a specific exemption, similar inquiries used in personnel the record must meet the correspond- screening to determine suitability, eli- ing criteria. gibility, or qualifications. (6) (k)(6) exemption: Testing or exam- NOTE: Department of the Navy Privacy Act ination material used solely to deter- systems of records which contain classified information automatically qualify for a mine individual qualifications for ap- (k)(1) exemption, without an established ex- pointment or promotion in the Federal emption rule. or military service if the disclosure would compromise the objectivity or (1) (k)(1) exemption: Information fairness of the testing or examination properly classified under Secretary of the Navy Instruction 5720.42E, ‘‘Depart- process. ment of the Navy Freedom of Informa- (7) (k)(7) exemption: Evaluation ma- tion Act Program’’ and E.O. 12958, in terial used to determine potential for the interest of national defense or for- promotion in the military services, but eign policy. only to the extent that disclosure (2) (k)(2) exemption: Investigatory in- would reveal the identity of a confiden- formation (other than that information tial source. (See § 701.113(h), ‘‘confiden- within the scope of § 701.113(f)(2) com- tial source’’.) piled for law enforcement purposes. If (h) Confidential Source. Promises of maintaining the information causes an confidentiality are to be given on a individual to be ineligible for or denied limited basis and only when essential any right, benefit, or privilege that he to obtain the information sought. Es- or she would otherwise be eligible for tablish appropriate procedures for or entitled to under Federal law, then granting confidentiality and designate
112
VerDate 25
those categories of individuals author- in violation of 5 U.S.C. 552a or this sub- ized to make such promises. part and subpart G of this part. (2) Maintaining unauthorized records. [59 FR 55348, Nov. 7, 1994, as amended at 61 FR 2917, Jan. 30, 1996] Any member or employee of Depart- ment of the Navy who willfully main- § 701.114 Enforcement actions. tains a system of records for which a notice has not been published under (a) Administrative remedies. An indi- periodic Chief of Naval Operations vidual who alleges he or she has been Notes (OPNAVNOTEs) 5211, ‘‘Current affected adversely by a naval activity’s Privacy Act Issuances.’’ violation of 5 U.S.C. 552a or this sub- part and subpart G of this part shall be (3) Wrongful requesting or obtaining permitted to seek relief from SECNAV records. Any person who knowingly and through proper administrative chan- willfully requests or obtains informa- nels. tion concerning an individual under false pretenses. (b) Civil court actions. After exhaust- ing all administrative remedies, an in- § 701.115 Computer matching program. dividual may file suit in Federal court against a naval activity for any of the (a) General. 5 U.S.C. 552a and this sub- following acts: part and subpart G of this part are ap- (1) Denial of an amendment request. plicable to certain types of computer The activity head, or his or her des- matching, i.e., the computer compari- ignee wrongfully refuses the individ- son of automated systems of records. ual’s request for review of the initial There are two specific kinds of match- denial of an amendment or, after re- ing programs that are fully governed view, wrongfully refuses to amend the by 5 U.S.C. 552a and this subpart and record; subpart G of this part: (2) Denial of access. The activity (1) Matches using records from Fed- wrongfully refuses to allow the individ- eral personnel or payroll systems of ual to review the record or wrongfully records; denies his or her request for a copy of (2) Matches involving Federal benefit the record; programs to accomplish one or more of (3) Failure to meet recordkeeping stand- the following purposes: ards. The activity fails to maintain an (i) To determine eligibility for a Fed- individual’s record with the accuracy, eral benefit. relevance, timeliness, and complete- (ii) To comply with benefit program ness necessary to assure fairness in any requirements. determination about the individual’s (iii) To effect recovery of improper rights, benefits, or privileges and, in payments or delinquent debts from cur- fact, makes an adverse determination rent or former beneficiaries. based on the record; or (b) The record comparison must be a (4) Failure to comply with Privacy Act. computerized one. Manual comparisons The activity fails to comply with any are not covered, involving records from other provision of 5 U.S.C. 552a or any two or more automated systems of rule or regulation promulgated under 5 records (i.e., systems of records main- U.S.C. 552a and thereby causes the indi- tained by Federal agencies that are vidual to be adversely affected. subject to 5 U.S.C. 552a); or a Depart- (c) Criminal penalties. Subsection (i)(1) ment of the Navy automated systems of 5 U.S.C. 552a authorizes three crimi- of records and automated records nal penalties against individuals for maintained by a non-Federal agency violations of its provisions. All three (i.e., State or local government or are misdemeanors punishable by fines agent thereof). A covered computer of $5,000. matching program entails not only the (1) Wrongful disclosure. Any member actual computerized comparison, but or employee of Department of the Navy also preparing and executing a written who, by virtue of his or her employ- agreement between the participants, ment or position, has possession of or securing approval of the Defense Data access to records and willfully makes a Integrity Board, publishing a matching disclosure knowing that disclosure is notice in the FEDERAL REGISTER before
113
VerDate 25
the match begins, ensuring that inves- information considered relevant and tigation and due process are completed, necessary to make a determination as and taking ultimate action, if any. to qualifications, eligibility, or suit- ability for access to classified informa- Subpart G—Privacy Act tion, and which was obtained by pro- Exemptions viding an express or implied promise to the source that his or her identity AUTHORITY: Pub. L. 93–579, 88 Stat. 1896 (5 would not be revealed to the subject of U.S.C. 552a). the record. Exempted portions of this SOURCE: 59 FR 55363, Nov. 7, 1994, unless system may also contain information otherwise noted. collected and maintained in connection with providing protective services to § 701.116 Purpose. the President and other individuals Subparts F and G of this part contain protected pursuant to 18 U.S.C. 3056. rules promulgated by the Secretary of Exempted portions of this system may the Navy, pursuant to 5 U.S.C. 552a (j) also contain investigative records com- and (k), and subpart F, § 70l.113, to ex- piled for law enforcement purposes, the empt certain systems of Department of disclosure of which could reveal the the Navy records from specified provi- identity of sources who provide infor- sions of 5 U.S.C. 552a. mation under an express or implied promise of confidentiality, compromise § 70l.117 Exemption for classified investigative techniques and proce- records. dures, jeopardize the life or physical All systems of records maintained by safety of law-enforcement personnel, or the Department of the Navy shall be otherwise interfere with enforcement exempt from the requirements of the proceedings or adjudications. access provision of the Privacy Act (5 (b) System Identifier and Name: N01131– U.S.C. 552a(d)) under the (k)(1) exemp- 1, Officer Selection and Appointment tion, to the extent that the system System. contains information properly classi- Exemption: Portions of this system of fied under E.O. 12958 and that is re- records are exempt from the following quired by that E.O. to be kept secret in subsections of the Privacy Act: (c)(3), the interest of national defense or for- (d), (e)(1), (e)(4)(G) through (I), and (f). eign policy. This exemption is applica- Authority: 5 U.S.C. 552a(k)(1), (5), (6), ble to parts of all systems of records and (7). including those not otherwise specifi- Reasons: Granting individuals access cally designated for exemptions herein to portions of this system of records which contain isolated items of prop- could result in the disclosure of classi- erly classified information. fied material, or the identification of [59 FR 55363, Nov. 7, 1994, as amended at 61 sources who provided information to FR 2917, Jan. 30, 1996] the government under an express or implied promise of confidentiality. Ma- § 701.118 Exemptions for specific Navy terial will be screened to permit access record systems. to unclassified material and to infor- (a) System Identifier and Name: N01070– mation that does not disclose the iden- 9, White House Support Program. tity of a confidential source. Exemption: Portions of this system of (c) System Identifier and Name: N01133– records are exempt from the following 2, Recruiting Enlisted Selection Sys- subsections of the Privacy Act: (c)(3), tem. (d), (e)(1), (e)(4) (G) through (I), and (f). Exemption: Portions of this system of Authority: 5 U.S.C. 552a(k) (1), (2), (3), records are exempt from the following and (5). subsections of the Privacy Act: (c)(3), Reasons: Exempted portions of this (d), (e)(1), (e)(4)(G) through (I), and (f). system contain information which has Authority: 5 U.S.C. 552a(k)(1), (5), (6), been properly classified under E.O. and (7). 12958, and which is required to be kept Reasons: Granting individuals access secret in the interest of national de- to portions of this system of records fense or foreign policy. Exempted por- could result in the disclosure of classi- tions of this system may also contain fied material, or the identification of
114
VerDate 25
sources who provided information to from embarrassment or recrimination, the government under an express or as well as to protect their right to pri- implied promise of confidentiality. Ma- vacy. It is essential that the identities terial will be screened to permit access of all individuals who furnish informa- to unclassified material and to infor- tion under an express promise of con- mation that does not disclose the iden- fidentiality be protected. Additionally, tity of a confidential source. granting individuals access to informa- (d) System Identifier and Name: N01640– tion relating to criminal and civil law 1, Individual Correctional Records. enforcement, as well as the release of Exemption: Portions of this system of certain disclosure accountings, could records are exempt from the following interfere with ongoing investigations subsections of the Privacy Act: (c)(3), and the orderly administration of jus- (c)(4), (d), (e)(2), (e)(3), (e)(4)(G) through tice, in that it could result in the con- (I), (e)(5), (e)(8), (f), and (g). cealment, alteration, destruction, or Authority: 5 U.S.C. 552a(j)(2). fabrication of information; could ham- Reason: Granting individuals access per the identification of offenders and to portions of these records pertaining the disposition of charges; and could to or consisting of, but not limited to, jeopardize the safety and well being of disciplinary reports, criminal inves- parents and their children. tigations, and related statements of (f) System Identifier and Name: N03834– witnesses, and such other related mat- 1, Special Intelligence Personnel Ac- ter in conjunction with the enforce- cess File. ment of criminal laws, could interfere Exemption: Portions of this system of with the orderly investigations, with records are exempt from the following the orderly administration of justice, subsections of the Privacy Act: (c)(3), and possibly enable suspects to avoid (d), (e)(1), (e)(4) (G) through (I), and (f). detection or apprehension. Disclosure Authority: 5 U.S.C. 552a(k) (1) and (5). of this information could result in the Reasons: Exempted portions of this concealment, destruction, or fabrica- system contain information that has tion of evidence, and jeopardize the been properly classified under E.O. safety and well-being of informants, 12356, and that is required to be kept witnesses and their families, and law secret in the interest of national de- enforcement personnel and their fami- fense or foreign policy. Exempted por- lies. Disclosure of this information tions of this system also contain infor- could also reveal and render ineffectual mation considered relevant and nec- investigative techniques, sources, and essary to make a determination as to methods used by these components and qualifications, eligibility, or suit- could result in the invasion of the pri- ability for access to classified informa- vacy of individuals only incidentally tion and was obtained by providing an related to an investigation. The exemp- express or implied assurance to the tion of the individual’s right of access source that his or her identity would to portions of these records, and the not be revealed to the subject of the reasons therefor, necessitate the ex- record. emption of this system of records from (g) System Identifier and Name: N04060– the requirement of the other cited pro- 1, Navy and Marine Corps Exchange Se- visions. curity Files. (e) System Identifier and Name: N01754– Exemption: Portions of this system of 3, Navy Child Development Services records are exempt from the following Program. subsections of the Privacy Act: (c)(3), Exemption: Portions of this system of (d), (e)(4) (G) through (I), and (f). records are exempt from the following Authority: 5 U.S.C. 552a(k)(2). subsections of the Privacy Act: (c)(3) Reasons: Granting individuals access and (d). to information collected and main- Authority: 5 U.S.C. 552a(k)(2). tained by these activities relating to Reasons: Exemption is needed in the enforcement of criminal laws could order to encourage persons having interfere with orderly investigations, knowledge of abusive or neglectful acts with orderly administration of justice, toward children to report such infor- and possibly enable suspects to avoid mation, and to protect such sources detection or apprehension. Disclosure
115
VerDate 25
of this information could result in the to the ongoing investigation. Such in- concealment, destruction, or fabrica- formation should be retained as it can tion of evidence, and could also reveal aid in establishing patterns of im- and render ineffectual investigative proper activity and can provide valu- techniques, sources, and methods used able leads in the conduct of other in- by these activities. vestigations. (h) [Reserved] (iv) From subsection (e)(4)(G) and (H) (i) System identifier and name: N05041– because this system of records is ex- 1, Inspector General (IG) Records. empt from individual access pursuant (1) Exemption: Portions of this system to subsection (k)(1) and (k)(2) of the of records may be exempt from the pro- Privacy Act of 1974. visions of 5 U.S.C. 552a(c)(3); (d); (e)(1); (v) From subsection (e)(4)(I) because (e)(4)(G), (H), and (I); and (f). it is neccessary to protect the con- (2) Authority: 5 U.S.C. 552a(k)(1) and fidentiality of sources and to protect (k)(2). the privacy and physical safety of wit- (3) Reasons: (i) From subsection (c)(3) nesses. Although the system is exempt because the release of the disclosure from this requirement, the Department accounting would permit individuals to of the Navy has published a notice in obtain valuable information concern- broad, generic terms in the belief that ing the nature of the investigation and would present a serious impediment to this is all that subsection (e)(4)(I) of the orderly conduct of any investiga- the Act requires. tive activities. Such accounting could (j) System Identifier and Name: N05300– result in the release of properly classi- 3, Faculty Professional Files. fied information which would com- Exemption: Portions of this system of promise the national defense or disrupt records are exempt from the following foreign policy. subsections of the Privacy Act: (c)(3), (ii) From subsections (d) and (f) be- (d), (e)(4) (G) and (H), and (f). cause access to the records would in- Authority: 5 U.S.C. 552a(k)(5). form individuals of the existence and Reasons: Exempted portions of this nature of the investigation; provide in- system contain information considered formation that might result in the con- relevant and necessary to make a re- cealment, destruction, or fabrication of lease determination as to qualifica- evidence; possibly jeopardize the safety tions, eligibility, or suitability for Fed- and well-being of informants, witnesses eral employment, and was obtained by and their families; likely reveal and providing an express or implied prom- render ineffectual investigatory tech- ise to the source that his or her iden- niques and methods and sources of in- tity would not be revealed to the sub- formation; and possibly result in the ject of the record. invasion of the personal privacy of (k) System Identifier and Name: N05354– third parties. Access could result in the release of properly classified informa- 1, Equal Opportunity Information Man- tion which could compromise the na- agement System. tional defense or disrupt foreign policy. Exemption: Portions of this system of Amendment of the records would inter- records are exempt from the following fere with the ongoing investigation and subsections of the Privacy Act: (c)(3), impose an impossible administrative (d), (e)(4)(G) through (I), and (f). burden by requiring investigations to Authority: 5 U.S.C. 552a(k)(1) and (5). be continually reinvestigated. Reasons: Granting access to informa- (iii) From subsection (e)(1) because in tion in this system of records could re- the course of the investigation it is not sult in the disclosure of classified ma- always possible, at least in the early terial, or reveal the identity of a stages of the inquiry, to determine rel- source who furnished information to evance and or necessity as such deter- the Government under an express or minations may only occur after the in- implied promise of confidentiality. Ma- formation has bee evaluated. Informa- terial will be screened to permit access tion may be obtained concerning the to unclassified material and to infor- actual or potential violation of laws or mation that will not disclose the iden- regulations other than those relating tity of a confidential source.
116
VerDate 25
(l) System Identifier and Name: N05520– emption of this system of records from 1, Personnel Security Eligibility Infor- the requirement of the other cited pro- mation System. visions. Exemption: Portions of this system of Exemption (2): Portions of this system records are exempt from the following of records are exempt from the follow- subsections of the Privacy Act: (c)(3), ing subsections of the Privacy Act: (d), (e)(4)(G) and (I), and (f). (c)(3), (d), (e)(1), (e)(4)(G) through (I), Authority: 5 U.S.C. 552a(k) (1), (2), (5), and (f). and (7). Authority (2): 5 U.S.C. 552a(k) (1), (3), Reasons: Granting individuals access (4), (5) and (6). to information collected and main- Reason (2): The release of disclosure tained in this system of records could accountings would permit the subject interfere with orderly investigations; of an investigation to obtain valuable result in the disclosure of classified information concerning the nature of material; jeopardize the safety of in- that investigation, and the information formants, witnesses, and their families; contained, or the identity of witnesses disclose investigative techniques; and or informants, would therefor present a result in the invasion of privacy of in- dividuals only incidentally related to serious impediment to law enforce- an investigation. Material will be ment. In addition, disclosure of the ac- screened to permit access to unclassi- counting would amount to notice to fied information that will not disclose the individual of the existence of a the identity of sources who provide the record. Access to the records contained information to the government under in this system would inform the sub- an express or implied promise of con- ject of the existence of material com- fidentiality. piled for law enforcement purposes, the premature release of which could pre- (m) System identifier and name: vent the successful completion of in- N05520–4, NCIS Investigative Files Sys- vestigation, and lead to the improper tem. influencing of witnesses, the destruc- Exemption (1): Portions of this system tion of records, or the fabrication of of records are exempt from the follow- testimony. Exempt portions of this ing subsections of the Privacy Act: system also contain information that (c)(3), (c)(4), (d), (e)(2), (e)(3), (e)(4)(G) has been properly classified under E.O. through (I), (e)(5), (e)(8), (f), and (g). Authority (1): 5 U.S.C. 552a(j)(2). 12958, and that is required to be kept Reason (1): Granting individuals ac- secret in the interest of national de- cess to information collected and fense or foreign policy. maintained by this activity relating to Exempt portions of this system also the enforcement of criminal laws could contain information considered rel- interfere with the orderly investiga- evant and necessary to make a deter- tions, with the orderly administration mination as to qualifications, eligi- of justice, and possibly enable suspects bility, or suitability for Federal civil- to avoid detection or apprehension. ian employment, military service, Fed- Disclosure of this information could re- eral contracts, or access to classified sult in the concealment, destruction, information, and was obtained by pro- or fabrication of evidence, and jeopard- viding an express or implied assurance ize the safety and well-being of inform- to the source that his or her identity ants, witnesses and their families, and would not be revealed to the subject of law enforcement personnel and their the record. The notice of this system of families. Disclosure of this information records published in the FEDERAL REG- could also reveal and render ineffectual ISTER sets forth the basic statutory or investigative techniques, sources, and related authority for maintenance of methods used by these components and the system. could result in the invasion of the pri- The categories of sources of records vacy of individuals only incidentally in this system have been published in related to an investigation. The exemp- the FEDERAL REGISTER in broad generic tion of the individual’s right of access terms. The identity of specific sources, to portions of these records, and the however, must be withheld in order to reasons therefor, necessitate the ex- protect the confidentiality of the
117
VerDate 25
source, of criminal and other law en- ther, the integrity of the system must forcement information. This exemption be ensured so that complete and accu- is further necessary to protect the pri- rate records of all adjudications are vacy and physical safety of witnesses maintained. Amendment could cause and informants. alteration of the record of adjudica- This system of records is exempted tion. from procedures for notice to an indi- (o) System Identifier and Name: N05527– vidual as to the existence of records 1, Security Incident System. pertaining to him/her dealing with an Exemption: Portions of this system of actual or potential civil or regulatory records are exempt from the following investigation, because such notice to subsections of the Privacy Act: (c)(3), an individual would be detrimental to (c)(4), (d), (e)(2), and (e)(4)(G) through the successful conduct and/or comple- (I), (e)(5), (e)(8), (f) and (g). tion of an investigation, pending or fu- ture. Mere notice of the fact of an in- Authority: 5 U.S.C. 552a(j)(2). vestigation could inform the subject or Reasons: Granting individuals access others that their activities are under, to information collected and main- or may become the subject of, an inves- tained by this component relating to tigation. This could enable the subjects the enforcement of criminal laws could to avoid detection, to influence wit- interfere with orderly administration nesses improperly, to destroy records, of justice, and possibly enable suspects or to fabricate testimony. to avoid detection or apprehension. Exempt portions of this system con- Disclosure of this information could re- taining screening board reports. sult in concealment, destruction, or Screening board reports set forth the fabrication of evidence, and jeopardize results of oral examination of appli- the safety and well being of inform- cants for a position as a special agent ants, witnesses and their families, and with the Naval Investigation Service of law enforcement personnel and their Command. Disclosure of these records families. Disclosure of this information would reveal the areas pursued in the could also reveal and render ineffectual course of the examination and thus ad- investigative techniques, sources, and versely affect the result of the selec- methods used by this component, and tion process. Equally important, the could result in the invasion of privacy records contain the candid views of the of individuals only incidentally related members composing the board. Release to an investigation.The exemption of of the records could affect the willing- the individual’s right of access to his ness of the members to provide candid or her records, and the reason there- opinions and thus diminish the effec- fore, necessitate the exemption of this tiveness of a program which is essen- system of records from the require- tial to maintaining the high standard ments of other cited provisions. of the Special Agent Corps., i.e., those (p) System Identifier and Name: N05527– records constituting examination ma- 4, Naval Security Group Personnel Se- terial used solely to determine individ- curity/Access Files. ual qualifications for appointment in Exemption: Portions of this system of the Federal service. records are exempt from the following (n) System identifier and name: N05520– subsections of the Privacy Act: (c)(3), 5, Personnel Security Program Man- (d), (e)(1), (e)(4)(G) through (I), and agement Records System. (f).Authority: 5 U.S.C. 552a(k)(1) Exemption: Portions of this system of through (k)(5). records are exempt from the following Reasons: Exempt portions of this sys- subsections of 5 U.S.C. 552a: (d)(1–5). tem contain information that has been Authority: 5 U.S.C. 552a(k)(1) and properly classified under E.O. 12958, (k)(5). and that is required to be kept secret Reasons: Granting individuals access in the interest of national defense or to information collected and main- foreign policy. Exempt portions of this tained in this system of records could system also contain information con- result in the disclosure of classified sidered relevant and necessary to make material; and jeopardize the safety of a determination as to qualification, informants, and their families. Fur- eligibility or suitability for access to
118
VerDate 25
classified special intelligence informa- (r) System Identifier and Name: N01000– tion, and that was obtained by provid- 5, Naval Clemency and Parole Board ing an express or implied promise to Files. the source that his or her identity Exemption: Portions of this system of would not be revealed to the subject of records are exempt from the following the record. subsections of the Privacy Act: (c)(4), (d), (e)(4)(G), and (f). (q) System Identifier and Name: N05800– Authority: 5 U.S.C. 552a(j)(2). 1, Legal Office Litigation/Correspond- Reasons: Granting individuals access ence Files. to records maintained by this Board Exemption: Portions of this system of could interfere with internal processes records are exempt from the following by which Board personnel are able to subsections of the Privacy Act: (d), formulate decisions and policies with (e)(1), and (f)(2), (3), and (4). regard to clemency and parole in cases Authority: 5 U.S.C. 552a(k)(1), (k)(2), involving naval prisoners and other (k)(5), (k)(6), and (k)(7). persons under the jurisdiction of the Reasons: Subsection (d) because Board. Material will be screened to per- granting individuals access to informa- mit access to all material except such tion relating to the preparation and records or documents as reflect items conduct of litigation would impair the of opinion, conclusion, or recommenda- development and implementation of tion expressed by individual board legal strategy. Accordingly, such members or by the board as a whole. records are exempt under the attorney- The exemption of the individual’s client privilege. Disclosure might also right to access to portions of these compromise on-going investigations records, and the reasons therefore, ne- and reveal confidential informants. Ad- cessitate the partial exemption of this ditionally, granting access to the system of records from the require- record subject would seriously impair ments of the other cited provisions. the Navy’s ability to negotiate settle- (s) System Identifier and Name: N06320– ments or pursue other civil remedies. 2, Family Advocacy Program System. Amendment is inappropriate because Exemption: Portions of this system of the litigation files contain official records are exempt from the following records including transcripts, court or- subsections of the Privacy Act: (c)(3) ders, investigatory materials, evi- and (d). dentiary materials such as exhibits, Authority: 5 U.S.C. 552a(k)(2) and decisional memorandum and other (k)(5). case-related papers. Administrative Reasons: Exemption is needed in due process could not be achieved by order to encourage persons having the ‘‘exparte’’ correction of such mate- knowledge of abusive or neglectful acts toward children to report such infor- rials. mation, and to protect such sources Subsection (e)(1) because it is not from embarrassment or recrimina- possible in all instances to determine tions, as well as to protect their right relevancy or necessity of specific infor- to privacy. It is essential that the iden- mation in the early stages of case de- tities of all individuals who furnish in- velopment. What appeared relevant and formation under an express promise of necessary when collected, ultimately confidentiality be protected. Addition- may be deemed unnecessary upon as- ally, granting individuals access to in- sessment in the context of devising formation relating to criminal and legal strategy. Information collected civil law enforcement, as well as the during civil litigation investigations release of certain disclosure account- which is not used during subject case is ing, could interfere with ongoing inves- often retained to provide leads in other tigations and the orderly administra- cases or to establish patterns of activ- tion of justice, in that it could result ity. in the concealment, alteration, de- Subsection (f)(2), (3), and (4) because struction, or fabrication of informa- this record system is exempt from the tion; could hamper the identification individual access provisions of sub- of offenders or alleged offenders and section (d). the disposition of charges; and could
119
VerDate 25
jeopardize the safety and well being of with the orderly administration of jus- parents and their children. tice, and might enable suspects to Exempted portions of this system avoid detection or apprehension. Dis- also contain information considered closure of this information could result relevant and necessary to make a de- in the concealment, destruction, or termination as to qualifications, eligi- fabrication of evidence, and jeopardize bility, or suitability for Federal em- the safety and well being of inform- ployment and Federal contracts, and ants, witnesses and their families, and that was obtained by providing an ex- law enforcement personnel and their press or implied promise to the source families. Disclosure of this information that his or her identity would not be could also reveal and render ineffectual revealed to the subject of the record. investigative techniques, sources, and (t) System Identifier and Name: N12930– methods used by this component, and 1, Human Resources Group Personnel could result in the invasion of the pri- Records. vacy of individuals only incidentally Exemption: Portions of this system of related to an investigation. The exemp- records are exempt from the following tion of the individual’s right of access subsections of the Privacy Act: (d), to his or her records, and the reasons (e)(4)(G) and (H), and (f). therefore, necessitate the exemption of Authority: 5 U.S.C. 552a(k)(5) and this system of records from the re- (k)(6). quirements of other cited provisions. Reasons: Exempted portions of this (b) System Identifier and Name: system contain information considered MIN00001, Personnel and Security Eli- relevant and necessary to make a de- gibility and Access Information Sys- termination as to qualifications, eligi- tem. bility, or suitability for Federal em- Exemption: Portions of this system of ployment, and was obtained by provid- records are exempt for the following ing express or implied promise to the subsections of the Privacy Act: (c)(3), source that his or her identity would (d), (e)(1), (e)(4)(G) through (I), and (f). not be revealed to the subject of the Authority: 5 U.S.C. 552a(k)(2), (k)(3), record. Exempted portions of this sys- and (k)(5), as applicable. tem also contain test or examination Reasons: Exempt portions of this sys- material used solely to determine indi- tem contain information that has been vidual qualifications for appointment properly classified under E.O. 12958, or promotion in the Federal service, and that is required to be kept secret the disclosure of which would comprise in the interest of national defense or the objectivity or fairness of the test- foreign policy. ing or examination process. Exempt portions of this system also [59 FR 55363, Nov. 7, 1994, as amended at 61 contain information considered rel- FR 2917, Jan. 30, 1996; 62 FR 15615, Apr. 2, evant and necessary to make a deter- 1997; 62 FR 61914, Nov. 20, 1997; 63 FR 25773, mination as to qualifications, eligi- May 11, 1998] bility, or suitability for Federal civil- § 701.119 Exemptions for Specific Ma- ian employment, military service, Fed- rine Corps Record Systems. eral contracts, or access to classified, compartmented, or otherwise sensitive (a) System Identifier and Name: information, and was obtained by pro- MMN00018, Base Security Incident Re- viding an expressed or implied assur- porting System. ance to the source that his or her iden- Exemption: Portions of this system of tity would not be revealed to the sub- records are exempt from the following ject of the record. subsections of the Privacy Act: (c)(3), (c)(4), (d), (e) (2) and (3), (e)(4)(G) Exempt portions of this system fur- through (I), (e)(5), (e)(8), (f), and (g). ther contain information that identi- Authority: 5 U.S.C. 552a(j)(2). fies sources whose confidentiality must Reasons: Granting individuals access be protected to ensure that the privacy to information collected and main- and physical safety of these witnesses tained by these activities relating to and informants are protected. the enforcement of criminal laws could [59 FR 55363, Nov. 7, 1994, as amended at 61 interfere with orderly investigations, FR 2917, Jan. 30, 1996]
120
VerDate 25
PART 705—PUBLIC AFFAIRS the Department of the Navy pertaining REGULATIONS to public affairs practices. § 705.2 Chief of Information and the Sec. Office of Information (CHINFO). 705.1 Purpose. 705.2 Chief of Information and the Office of (a) The Chief of Information is the di- Information (CHINFO). rect representative of the Secretary of 705.3 [Reserved] the Navy and of the Chief of Naval Op- 705.4 Communication directly with private erations in all public affairs and inter- organizations and individuals. nal relations matters. As such, the 705.5 Taking of photos on board naval ships, aircraft and installations by members of Chief of Information has the authority the general public. to implement public affairs and inter- 705.6 Releasing public information material nal relations policies and to coordinate to the media. Navy and Marine Corps public affairs 705.7 Radio and television. and internal relations activities of mu- 705.8 Motion pictures. tual interest. 705.9 Availability of motion pictures to ex- (b) The Chief of Information will ternal audiences. keep Navy commands informed of De- 705.10 Still photography. 705.11 Supplying photographs and services partment of Defense policies and re- to other than Navy and Marine Corps. quirements. No command within the 705.12 Print media. Department of the Navy, except Head- 705.13 Commercial advertising. quarters, Marine Corps, will deal di- 705.14 Embarkation of media representa- rectly with the Office of the Assistant tives. Secretary of Defense (Public Affairs) 705.15 Employment of Navy personnel as on public affairs matters unless au- correspondents or staff members of civil- thorized to do so by the Chief of Infor- ian news media. 705.16 Navy produced public information mation. material. (c) The Chief of Information will be 705.17 Participation guidelines. consulted on all Navy public affairs 705.18 Authority and coordination. and internal relations matters and in- 705.19 Financing. formed of all operations and proposed 705.20 Use of Navy material and facilities. plans and policies which have national 705.21 Requests for Navy participation. or international (and in the case of 705.22 Relations with community groups. audio-visual material, regional) public 705.23 Guest cruises. 705.24 Exhibits. affairs aspects. 705.25 Navy Exhibit Center. (d) The Chief of Information heads 705.26 Exhibit availability report. the Navy Office of Information, the 705.27–705.28 [Reserved] Navy Internal Relations Activity 705.29 Navy Art Collection. (NIRA), the Office of Information 705.30 Aerospace Education Workshop. Branch Offices (NAVINFOs), the Navy 705.31 USS Arizona Memorial, Pearl Harbor. Public Affairs Center (NAVPACENs) 705.32 Aviation events and parachute dem- and the Fleet Home Town News Center onstrations. 705.33 Participation by Armed Forces bands, (FHTNC). In addition, the Chief of In- choral groups, and troops in the public formation has responsibility (on behalf domain. of the Secretary of the Navy as Execu- 705.34 Other special events. tive Agent for the Department of De- 705.35 Armed Forces participation in events fense) for the High School News Serv- in the public domain. ice and has operational control of the 705.36 Government transportation of civil- U.S. Navy Band, Washington, DC. ians for public affairs purposes. (e) The Navy Office of Information 705.37 Public affairs and public service awards. Branch Offices (NAVINFOs) are located in Atlanta, Boston, Chicago, Dallas, AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031. Los Angeles, and New York. As rep- SOURCE: 41 FR 29101, July 15, 1976, unless resentatives of the Secretary of the otherwise noted. Navy, Chief of Naval Operations, and Chief of Information, the NAVINFOs § 705.1 Purpose. have a primary mission of providing di- The regulations and rules in this part rect liaison with local and regional prescribe policies and procedures for mass communications media.
121
VerDate 25
(1) The function of the NAVINFOs NAVINFO Los Angeles, which will co- are as follows: ordinate with CHINFO. (i) Establish and maintain close per- (3) Additionally, NAVINFO New York sonal relationships with local tele- is the Navy representative for all ap- vision, radio, film, publishing, and propriate liaison with television and other mass-media organizations includ- radio networks in the New York area ing minority-group-oriented media. and with magazine and book publishers (ii) Seek ways through these media in that area. Requests for assistance to inform the public about naval per- originating from these media should be sonnel and activities. directed to NAVINFO New York, which (iii) Provide assistance to media or- will coordinate with CHINFO. ganizations and respond to their inter- (4) Except as specifically directed by est in Navy programs, stories, and fea- CHINFO, the Branch Offices do not tures. In this regard, maintain infor- have responsibility or authority for mal liaison with various information community relations or internal rela- offices afloat and ashore in order to re- tions. spond to requests from local media rep- (5) Direct liaison between NAVINFOs resentatives, particularly those from and Naval District public affairs of- inland areas, who desire to visit fleet fices, Navy recruiters and other naval units or activities ashore. activities afloat and ashore is encour- (iv) Provide advice on Navy coopera- aged. tion and assistance, as appropriate, to (f) Areas covered by the respective representatives of national industrial offices are: and commercial organizations, includ- (1) NAVINFO Atlanta: Alabama, the ing advertising agencies. District of Columbia, Florida, Georgia, Kentucky, Maryland, Mississippi, (v) Maintain a library of Navy mo- North Carolina, South Carolina, Ten- tion picture films for use by local tele- nessee, Virginia, and Southern West vision stations, distribute news films Virginia. and audio material, and otherwise per- (2) NAVINFO Boston: Maine, Massa- form normal audio-visual functions at chusetts, New Hampshire, Rhode Is- the local level. land, and Vermont. (vi) Provide personnel and other as- (3) NAVINFO Chicago: Illinois, Indi- sistance as appropriate, to special ana, Iowa, Michigan, Minnesota, Ne- Command Information Bureaus and braska, North Dakota, Ohio, South Da- public information staffs of other naval kota, Wisconsin, and Northern West activities as directed by the Chief of Virginia. Information. (4) NAVINFO Dallas: Arkansas, Colo- (vii) Advise the Chief of Information rado, Kansas, Louisiana, Missouri, New on current trends and significant prob- Mexico, Oklahoma, and Texas. lems relating to local media require- (5) NAVINFO Los Angeles: Arizona, ments. California, Idaho, Montana, Nevada, (viii) Seek ways to support the long- Oregon, Utah, Washington, and Wyo- range goals and immediate priorities of ming. the Navy. (6) NAVINFO New York: Connecticut, (ix) Provide advice and assistance in Delaware, New Jersey, New York, and the placement of news and feature ma- Pennsylvania. terials to the field activities of the (g) The Navy Public Affairs Centers Navy Recruiting Command. (NAVPACENs) are located in Norfolk (x) Perform such other tasks as may and San Diego. The centers have a pri- be assigned by the Chief of Informa- mary mission of producing Navy sto- tion. ries for dissemination to the media (2) Additionally, NAVINFO Los Ange- through normal information channels. les is the Navy representative for all (1) The following tasks are included appropriate liaison with motion pic- among the functions of the ture and network television offices in NAVPACENs. the Hollywood area. Naval activities (i) Produce written, audio and photo- will channel all requests for informa- graphic feature public information ma- tion or assistance from these media to terial about fleet and shore personnel,
122
VerDate 25
units and activities, as coordinated § 705.3 [Reserved] with and approved for policy and con- cept by the respective fleet and shore § 705.4 Communication directly with commander concerned. private organizations and individ- (ii) Serve as public affairs emergency uals. reaction teams/resource personnel re- (a) Questions from the public and re- sponsive to the requirements of the quests from groups or individuals for CNO and CHINFO, and when feasible pamphlets, photos, biographies, histor- and appropriate and as approved by ical matter, etc., must be promptly an- CNO or CHINFO, serve as public affairs swered. (32 CFR part 701, subparts A–D emergency reaction teams/resource refers.) personnel in support of Fleet Com- (b) Assistance within the command’s manders. capabilities should (and in some cases, (iii) Develop feature material to sup- must) be given. Where an established port the long range goals and the im- channel for obtaining the item exists, mediate priorities of the Navy. Direct such as a publication stocked by the liaison is authorized with the Navy Re- Superintendent of Documents (Govern- cruiting Command, Recruiting Areas, ment Printing Office), or photos, as ex- Recruiting Districts, and other Com- plained in the subparagraph below, the manders as appropriate to achieve this requester may be directed to it. Under function. some circumstances, a charge may be (iv) Perform such other tasks as may made. (Consult part 701 or the com- be assigned by the Chief of Informa- mand’s Freedom of Information au- tion. thority for details.) If a lengthy search, (2) NAVPACENs will have no public beyond the convenient manpower re- affairs news media responsibilities sources of the command, would be re- which conflict with the basic public af- quired, the requester may be offered fairs responsibilities of Fleet Com- the opportunity of examining the ma- manders-in-Chief. Specifically, terial at the command instead of cop- NAVPACENs are excluded from re- ies being made. sponding to news media queries, releas- (c) If a request is refused, the reason ing news information, arranging news must be fully and courteously ex- media embarkations, or any other day- plained, as required by part 701 of this to-day news media services concerning chapter. the respective fleets. These responsibil- (d) Copies of released U.S. Navy ities remain with the Fleet Com- photos may be purchased by the gen- mander. eral public. (3) NAVPACENs have no direct re- (1) Photos made within the last 10 sponsibility or authority for commu- years may be purchased from the Naval nity relations or internal relations and Photographic Center. Information on shall defer in these areas to the cog- the conditions of sale can be obtained nizant Naval District Commandant. by writing to the Commanding Officer, (4) Direct liaison with Fleet Com- Naval Photographic Center, Naval Sta- manders-in-Chief and NAVINFOs is ap- tion, Washington, DC 20390. propriate and authorized. As approved (2) Photos made more than 10 years by the Fleet CINCs, direct liaison with prior to the current date may be pur- forces afloat and shore activities under chased from the National Archives. De- the Fleet CINCs is appropriate. tails are available from: Audio-Visual (5) NAVPACENs will carry out their Branch National Archives and Records mission and functions in such a man- Service, General Services Administra- ner as not to interfere with the public tion, Washington, DC 20408. affairs responsibilities of the District Commandants. [41 FR 29101, July 15, 1976, as amended at 44 FR 6390, Feb. 1, 1979] [44 FR 6389, Feb. 1, 1979]
123
VerDate 25
§ 705.5 Taking of photos on board described in paragraph (b) of this sec- naval ships, aircraft and installa- tion, following. tions by members of the general (2) Releases by local commands: public. (i) News of purely local interest may (a) Visitors will not be allowed to be released by the command concerned. take photographic equipment on board Higher and coordinating authorities a naval ship or aircraft or into a naval (such as the District Commandant) will activity or to take photographs within be informed, when appropriate, that a naval jurisdiction unless specially the release has been made. authorized by the officer in command (ii) News of national or other wide in- or higher authority. terest may be released by a local com- (b) Guests of the Navy who wish to mand under the following cir- take photos within naval jurisdictions cumstances: will be advised of areas where photog- (A) The Assistant Secretary of De- raphy is permitted. An escort will be fense (Public Affairs), having approved assigned to assure that security is a release, directs that it be issued by maintained, unless photography is per- the command concerned. mitted throughout the ship, aircraft or (B) An event of immediate and ur- installation, or the areas in which it is gent news interest, such as a not permitted are appropriately guard- disasterous accident, occurs at the ed or secured. command, and emergency announce- (c) If there is reason to believe that ments must be made as delay in issuing film exposed by a visitor or media pho- information would be against the best tographer contains classified informa- interests of the Navy. The officer in tion, the film will be processed under command will make a ‘‘spot news’’ re- Navy jurisdiction. lease of all appropriate information (1) Classified photos, if any, will be considered releasable. retained. All unclassified film will be (1) Copies of spot news releases made returned to the owner. (or a description if the announcement (2) When film exposed by civilian is made orally) will be forwarded visitors or media representatives in promptly to the Chief of Information. sensitive areas is beyond the capability (2) If the situation is considered criti- of the local command to process, it cal, the spot news release will be for- may be forwarded to the Commanding warded by telephone or message. Officer, Naval Photographic Center, for (b) Means through which information processing. Any special processing in- is released to media: structions should be sent with the film. (1) Navy oriented information mate- rial (written, taped, motion picture, § 705.6 Releasing public information still photo) is regularly released to all material to the media. media presumed to be interested. (a) Methods of releasing information: (2) Similar material is provided in re- (1) Release at the seat of government sponse to query from a news media rep- and/or as approved by the Assistant resentative. The material may be pro- Secretary of Defense (Public Affairs). duced by the Navy, or the newsman (i) Overall responsibility for release may be assisted in researching, film- of information rests with the Assistant ing, etc. himself. Secretary of Defense (Public Affairs). (3) Exclusive releases: The Chief of Information is responsible (i) Information concerning naval ac- for coordinating with him releases of tivities may be provided on an exclu- national and international interest sive basis only when a specific request (and in the case of audiovisual mate- or inquiry is received from one news rial of regional interest) and for ar- media representative for material not ranging for local release of such mate- requested by other media. rial if considered appropriate by (ii) In such cases, and assuming that OASD(PA). Information of the above the information is properly releasable, types and also information proposed the following rules will apply: for release at the seat of government, (A) If prior to the time information is with the exception of ‘‘spot news,’’ as given to the newsman making the
124
VerDate 25
original inquiry or request substan- (v) Newsmen are not normally asked tially similar inquiries or requests are to submit their questions in advance. If received from other newsmen, the first this is considered advisable, as in cases inquirer will be so informed, and subse- where highly technical answers may be quent inquirers will be advised that a required, the answers are prepared in prior request has been received. None advance and given to all attending of the inquirers will be told the iden- newsmen (not just the questioner) at tity of the individuals or media who the news conference. have placed these similar inquiries. (5) Interviews. These are similar to (B) If not more than three similar re- news conferences except that they in- quests are received, the information volve a single newsman (who has usu- will be provided simultaneously to ally requested the interview) and a sin- each inquirer. gle Navy spokesman. (C) If more than three requests for (i) Required procedures are essen- substantially the same information tially the same as for news con- have been received before any are an- ferences. However, a public affairs offi- swered, inquirers will be advised as cer should be present only if desired by soon as possible that the information the person being interviewed. The cannot be given on an exclusive or lim- interview may be taped, if the news- ited basis, and a general release cover- man agrees. ing the subject will be issued to all (ii) Without penalizing initiative dis- media. played by a newsman in asking perti- nent questions, care should be exer- (4) News conferences: cised by the naval spokesman not to (i) A news conference is held when a make a major revelation of news mate- command has something specific to an- rial to a single media outlet in the nounce to the press that cannot be han- course of a routine interview. dled in a news release or by phone call. (iii) If major areas of difficulty arise A news conference should not be called in the interview, the Chief of Informa- just to get together with the press. A tion should be notified of them. request from the press is also a reason (6) Background briefings; ‘‘Not for at- for conducting a news conference. Spe- tribution’’; or ‘‘Off the record.’’ cial events, significant operations or (i) Since there is a possibility or risk serious accidents are frequent reasons of a misunderstanding arising in these for calling news conferences. If re- briefings, it is important that all con- quested, spokesmen may be made cerned understand and agree to the available to the press for questions ground rules. without specific subject matter in (ii) In general, information will not mind, but the press should be clearly be made public unless it can be openly informed of the nature of this meeting. attributed to the Navy and dissemi- Technically, this is not considered a nated without reservation. Occasion- news conference. ally, a backgrounder may be helpful. (ii) When a news conference is held, it An example is a briefing of embarked is essential that all interested media be newsmen in advance of an operation, invited to attend. providing information which may not (iii) A record of what is said should be reported until the operation is over. be kept. Ideally, the news conference The purpose is to help the newsmen un- should be tape recorded and a public af- derstand the operation while it is tak- fairs officer should be present. ing place. (iv) Official spokesmen will be pre- pared to answer questions in a frank § 705.7 Radio and television. and candid manner. If the answer (a) Navy relationships with radio and would compromise military security, TV representatives are of two types: the inquirer should be so advised. If the (1) Dissemination to them of Navy answer is not known to the spokesman, produced tapes, photos, films, etc. he should say so and add that the mat- (This is discussed in more detail in ter will be checked and any available § 705.17). unclassified information provided (2) Cooperation with them when they later. produce a program on a Navy subject.
125
VerDate 25
This is discussed in the paragraph fol- activities. Exceptions to this policy lowing: will be made only in unusual cir- (b) Requirement for approval by cumstances. higher authority. (5) Diversion of ships, equipment, (1) Commanding officers may: personnel and material resources from (i) Release audiovisual material normal military locations or military which is spot news, as defined in operations will not normally be au- § 705.6(a)(2)(ii) preceding, or is of purely thorized for filming. Exceptions to local interest. such policy must be authorized by the (ii) Participate in local community Assistant Secretary of Defense (Public audiovisual projects of benefit to the Affairs), through the Chief of Informa- Department of Defense or in the na- tion. tional interest. (i) The production company con- (iii) Approve one-time, one-station cerned must reimburse the government participation by personnel of their for any extra expense involved. A strict commands (as individuals) in programs accounting of the additional expenses of purely local interest. incurred and charged to the production (2) All other audiovisual material company must be maintained by the originated by the Department of the designated project officer. A copy of Navy or requiring Navy cooperation this accounting will be forwarded to must be approved by the Chief of Infor- the Chief of Information. mation, who will effect the necessary (6) Naval material and personnel will coordination and/or approval of the As- not be employed in such a manner as to sistant Secretary of Defense (Public compete with commercial and private Affairs). enterprise. In this regard, any person (i) Requests for assistance from non- or agency requesting their use will fur- governmental audiovisual media will nish a noncompetitive certification. be forwarded, with the maximum avail- (7) Additional details on procedures able details and an evaluation of the will be found in DOD Instruction request, through the chain of command 5410.16. to the Chief of Information. (8) In addition to cooperation re- (ii) No direct coordination or contact quested by the media, commands will between local naval commands and the be alert to the advantages of providing Assistant Secretary of Defense (PA) is Navy programming and/or encouraging authorized unless specifically provided participation by Navy personnel in for by separate directives or cor- local radio and TV programming. Ex- respondence. amples are community forums, local (c) Navy cooperation in productions talent shows, educational and religious by audiovisual media representatives programs, children’s shows, sports pro- (nongovernment). grams, etc. (1) The production or project must: (i) Be consistent with the goals and (d) Participation by individual Navy aims of the Department of Defense and/ personnel on radio or TV programs: or be in the national interest. (1) In general, such participation is (ii) Portray military operation, his- encouraged if it is: torical incidents, persons and places, in (i) Dignified and considered in the in- such a manner as to give a true por- terests of the Navy. trayal and interpretation of military (ii) Compatible with operational life. commitments. (iii) Comply with accepted standards (iii) Not in competition with the reg- of dignity and propriety in the indus- ular employment of professional per- try. formers. (2) There will be no deviation from (2) The public affairs officer will established safety standards. screen requests for such appearances (3) Operational readiness shall not be for members of his command to see impaired. that the programs are in good taste, (4) Official activities of military per- and that neither the Navy nor its per- sonnel assisting the production must sonnel are exposed to embarrassment be within the scope of normal military for the sake of entertainment.
126
VerDate 25
(3) Approval of participation by Navy § 705.8 Motion pictures. individuals: (a) The rules and procedures given in (i) Approval is not required for per- the preceding for TV will also apply to sonnel attending audience participa- cooperation with commercial motion tion broadcasts if they are selected at picture producers. random from the audience. (b) The Navy assists in the produc- (ii) One-time, one-station participa- tion of commercial, privately financed, tion of purely local interest may be ap- nontheatrical motion pictures of insti- proved by the officer in command con- tutional or of educational value to the cerned. public. They Navy will not: (iii) If participation will be on a net- (1) Solicit their production. work (defined as more than one sta- tion, even if local) of if the same per- (2) Provide lists of subjects the Navy son or program is requested by two or considers ‘‘desirable.’’ more unrelated stations, approval by (3) State that the Navy will use a the Chief of Information must be ob- commercially produced film. tained even if the show is of local in- (4) Imply endorsement of a product. terest only. (5) Permit the use of official Navy (e) Use of official footage: seals. (1) Use of official U.S. Navy stock (c) Navy assistance to motion pic- film footage on TV broadcasts is not tures and all other audio-visual prod- authorized without approval and clear- ucts produced by Navy contractors will ance by the Chief of Information and be subject to the same rules and proce- the Department of Defense. dures that apply to other non-govern- (2) Use of Navy public information ment producers. Audio-visual products motion pictures cleared for TV is au- produced by Navy contractors, with or thorized and encouraged except that without Navy assistance, will be sub- such films may be used on subscription mitted to the Chief of Information via or pay TV only when offered to the the appropriate Navy headquarters ac- viewers at no cost. tivity for coordination with the Assist- (3) Navy films will not be cut or por- ant Secretary of Defense (Public Af- tions duplicated for TV use in lieu of fairs) for clearance for public release. stock footage without prior approval They will be accompained by five cop- by the Chief of Information. ies of the script and a statement from (f) Music clearance. The Navy as- the producer that costs were paid from sumes no responsibility for clearance corporate (vice contract) funds. of music used on Navy recordings, (d) When a commercial film which transcriptions, or films not specially has been produced with Navy coopera- produced or authorized for radio or TV tion is screened in a community, local broadcast. commands can provide Navy exhibits (g) Disclaimers. A disclaimer is not for display in theater lobbies, coordi- necessary if a product is advertised on nate displays of recruiting material, a program in which the Navy partici- and arrange for personal appearances pates, but there must be no stated or of Department of Defense and Depart- implied endorsement of it by the Navy ment of the Navy military and civilian or by naval personnel appearing on the personnel, provided such cooperation is program. approved by the Chief of Information (h) Requests for courtesy prints of and the Assistant Secretary of Defense commercial television programs: (Public Affairs). (1) Requests will not be made directly [41 FR 29101, July 15, 1976, as amended at 44 to the producer or network concerned, FR 6390, Feb. 1, 1979] but will be forwarded to the Chief of In- formation by the Navy requester. § 705.9 Availability of motion pictures (2) These courtesy prints will be ex- to external audiences. hibited only under circumstances (a) Public access. Navy and Marine which cannot be construed as competi- Corps general motion pictures and mo- tive with commercial ventures. tion picture projects not previously
127
VerDate 25
cleared for public exhibition will re- in recovering film or photographs pre- quire clearance by the Chief of Infor- sumed to be of classified nature. mation or the Marine Corps Director of (3) If media photographers are unco- Information, as appropriate, prior to operative in regard to protection of public viewing. Concurrent review of classified material, an account of the legal rights and instruments associated matter will be forwarded to the Chief with the production will be carried out of Information. by Patent Counsel, Naval Air Systems (d) Release of photographs: Command (AIR–OOP). Cleared motion (1) Most unclassified photographs of pictures may also be made available interest to the public may be released for free loan as determined by the indi- to news media. However, the rights of vidual services. In addition, cleared individuals photographed and special motion pictures may be provided for constraints such as those described in rent or sale through the National section 0403 of the Public Affairs Regu- Audio-Visual Center, National Ar- lations must be taken into consider- chives and Records Service (GSA), ation before a decision is made to re- Washington, DC 20409. lease a photograph. In addition, photos (b) Foreign military training. Motion which might be harmful to recruiting pictures from the Navy inventory may or otherwise not be in the Navy’s best be made available for foreign military interests will not be used unless this training programs on approval by the failure to release them constitutes sup- Chief of Naval Operations. Classified pression of legitimate news. motion pictures selected for such use (2) Photographs of strictly local in- will also require a security review by terest can be made available by the the Chief of Naval Operations. command to local media without being submitted to review by higher author- § 705.10 Still photography. ity. (3) If a feature type photo released lo- (a) Policy and procedures on taking cally is considered of possible interest photos by the general public, given in elsewhere, because of its human inter- § 705.5 apply also to media representa- est or artistic merit, a single print tives. should be forwarded to the Chief of In- (b) Basic policy and procedures for formation, together with a notation of still photos are set forth in the Manual the distribution made. of Naval Photography, OPNAVINST (4) Photographs of national interest: 3150.6D. (i) ‘‘Spot news’’ photos may be re- (c) Authority to forbid photography: leased by a District Commandant or (1) On Navy property, the officer in Fleet or Force Commander. command may forbid the taking of (ii) If a photo has been released by a photographs and may confiscate film, local command to national news reviewing it if it is suspected that clas- media: sified material has been photographed. (A) The original negative or trans- In such cases, all unclassified photos parency will be forwarded by the fast- will be returned promptly to the pho- est available means to the Command- tographer. ing Officer, Naval Photographic Center, (2) Navy personnel have no authority Naval Station, Washington, DC 20390. to confiscate film off Navy property. If, Such forwarding will be in accordance as in an accident, classified equipment with the Manual of Naval Photog- is exposed which cannot be removed or raphy, par. 0445, subparagraphs 3 and 4. covered, Navy representatives will ask (B) One print, a copy of the letter of news media photographers not to pho- transmittal, and the distribution list tograph it and will inform them of 18 will be forwarded to the Chief of Infor- U.S.C. 793(e), 795, 797, which makes it a mation. criminal offense to photograph classi- (C) Navy units with a Unified Com- fied material. Navy personnel will not mand will forward the photos through use force if media photographers refuse Unified Command channels. to cooperate, but will instead seek the (D) All other commands will forward assistance of appropriate civil authori- the photos to the Chief of Information ties and/or the photographer’s superior who will effect coordination with the
128
VerDate 25
Office of the Assistant Secretary of De- NAVCOMPT Manual, and part 701, sub- fense (Public Affairs) and, if necessary, parts A–D. arrange for security review. (d) Navy aerial photography released (iii) Photography of research activi- for sale to the public is transferred to ties is normally considered to be of na- the United States Department of the tional interest. Interior. Inquirers regarding the pur- (iv) Still photographs of national chase of this photography should be di- news interest may be forwarded, un- rected to Chief, Map Information Of- processed, for release by the Chief of fice, Geological Survey, Department of Information by any command not sub- the Interior, Washington, DC 20025. ject to the authority of a Unified or (e) Navy training films suitable for Specified Commander. Such forwarding sale to the public are transferred to the will be in accordance with paragraph National Audio-Visual Center, Na- 0445, subparagraph 3, of the Manual of tional Archives and Records Service, Naval Photography. All available cap- General Services Administration, tion material will be forwarded with Washington, DC 20408. Inquires regard- this unprocessed photography. ing the sale of Navy training films should be addressed to the National § 705.11 Supplying photographs and Audio-Visual Center. services to other than Navy and Ma- (f) This policy does not preclude re- rine Corps. leases to contractors and others prop- (a) To avoid competition with civil- erly engaged in the conduct of the ian photographic organizations, naval Navy’s business. However, when serv- aircraft will not be used to take photo- ices are performed for other agencies of graphs for, nor will photographs or mo- the government, and under certain con- saic maps be provided to any individ- ditions, for other military depart- uals, corporations, or agencies other ments, the Navy Comptroller Manual than departments or agencies of the prescribes that such are subject to re- federal government, without specific imbursement. permission from the Chief of Naval Op- (g) All private inquiries from foreign erations. nationals should be returned, advising (b) In the case of natural catas- the addressee to contact his local U.S. trophe, or other circumstances where Information Service officer for the de- prompt action is required, the senior sired materials. officer present may authorize a depar- ture from the preceding paragraph. In § 705.12 Print media. all such cases, a report of the cir- Requests for reprints of items pub- cumstances will be made to the Chief lished in national media will be ad- of Naval Operations. dressed to the Chief of Information. (c) This policy does not preclude re- Commands will be careful not to repro- leases to the media, news companies, duce on their own authority any copy- and others in accordance with estab- righted material without advance per- lished procedures, or the sale of re- mission from the copyright holder. leased photographs to private agencies or individuals under existing Depart- § 705.13 Commercial advertising. ment of Defense regulations and part (a) The Navy encourages cooperation 701, subparts A–D, Availability to the with advertisers. However, the layout, public of Department of the Navy In- artwork and text of the proposed ad- formation and Records. Normally, re- vertisement must be submitted to the quests by individuals for still photo- Chief of Information for review and for graphs and motion picture photog- clearance by other appropriate authori- raphy for private use are forwarded to ties. the Commanding Officer, Naval Photo- (b) Requests from commercial enter- graphic Center, Naval Station, Wash- prises (including those with Navy con- ington, DC 20390, for action. Procedures tracts) for use of Navy personnel, fa- for the collection or authority for cilities, equipment or supplies for ad- waiver of fees for service and material vertising purposes must be referred to provided are set forth in Volume III, the Chief of Information.
129
VerDate 25
(c) Official Navy photos which have active duty may use their military ti- been cleared and are released for open tles in connection with commercial en- publication may be furnished for com- terprises if this does not give rise to mercial advertising, if properly identi- the appearance of sponsorship of the fied and captioned. No photos will be enterprise by the Navy or Department taken exclusively for the use of an ad- or in any way reflect discredit upon vertiser. them.) (d) Navy cooperation in commercial (5) Testimonials from naval person- advertising, publicity and other pro- nel are not banned, but the person giv- motional activities will be based on the ing the testimonial must not be spe- following requirements. cifically identified. (1) It must be in accordance with the (i) The use of name, initials, rank or provisions of 32 CFR part 721. rate of Navy personnel appearing in (2) It must be in good taste and not testimonial advertising is not per- reflect discredit on the Navy or the mitted, but such expressions as, ‘‘says U.S. Government. Statements made a Navy chief,’’ may be used. must be matters of fact, without mis- (ii) Care will be taken to ensure that leading information or other objection- testimonials from Navy personnel are able features. presented in such a way as to make (3) It must not indicate that a prod- clear that the views expressed are uct is used by the Navy to the exclu- those of the individual and not of the sion of similar products offered by Department of the Navy. other manufacturers or appear to en- dorse or selectively benefit or favor (di- § 705.14 Embarkation of media rep- rectly or indirectly) any private indi- resentatives. vidual, sect, fraternal organization, (a) General. (1) Although this para- commercial venture or political group, graph applies primarily to embar- or be associated with solicitation of kation in ships, provisions which are votes in a political election. It will not applicable to embarkation on aircraft infer Navy responsibility for the accu- or visits to shore installations apply racy of the advertiser’s claims or for also to those situations. his compliance with laws protecting (2) See also § 705.37 on transportation the rights of privacy of military per- of non-Navy civilians. sonnel whose photographs, names or (b) Invitations to embark. (1) Invita- statements appear in the advertise- tions should be extended as far in ad- ment. It will neither indicate that a vance as possible and inclusive infor- product has undergone Navy tests nor mation on the following should be pro- disclose data from any Navy tests vided: which may have been made. (i) Type, scope and duration of oper- (4) It may not promote the use of to- ation or cruise. bacco or alcohol. (ii) Communications, methods of (e) Use of uniforms and naval insig- press transmission, and charges, if any. nias. These may be used provided it is (iii) Transportation arrangements. done in a dignified manner. (iv) Approximate cost of meals and/or (f) Use of Naval personnel: quarters, and the statement that the (1) Personnel may receive no com- newsman will be expected to pay for pensation. these and other personal expenses in- (2) Personnel will not be inconven- curred. ienced or have their training or normal (2) It should be made clear to the duties interrupted. newsman that there may be limits on (3) Written consent from the person movement from one participating unit concerned must be obtained before a to another. If helicopters or highline photo may be used. transfers are to be used, their limita- (4) Navy civilians and military per- tions and hazards should be explained. sonnel on active duty may not use (3) On operations where security is their position titles or ranks in connec- critical, embarkation of newsmen may tion with any commercial enterprise or be made contingent to their agreement endorsement of a commercial product. to submit copy for security review. (Retired personnel and Reserves not on Under such circumstances, the reason
130
VerDate 25
for the review will be made clear prior broadcasts or telecasts. (A live net- to embarkation, and every effort will work broadcast or telecast must, how- be made to avoid any interpretation of ever, be approved by the Chief of Infor- such review as ‘‘censorship’’ or inter- mation.) ference with freedom of the press. (4) Messages and instructions from (c) Arrangements aboard ship. (1) editors and station managers to em- Where appropriate, a briefing should be barked newsmen will be handled as held at the earliest convenient time press traffic, as authorized in Naval after embarkation at which newsmen Telecommunication Procedures (NTP– may meet the commanding officer and 9). other key personnel and guests and at (5) Stations receiving press circuits which previously supplied information will be authorized to receipt for press is reviewed. traffic without asking for time-con- (2) If feasible, an escort officer will be suming ‘‘repeats.’’ assigned to each newsman (or group of (6) Under normal circumstances, newsmen having similar requirements). press copy will be transmitted on a (3) It should be reported in the ship’s first-come, first-served basis; however, newspaper (and on radio and closed-cir- newsmen will be informed that the pre- cuit TV, if any) that newsmen will be rogative of limiting the amount to be embarked, giving their names and the filed during any one period rests with media they represent. the Exercise Commander. (4) If a correspondent is interested in (7) If it becomes necessary for oper- home town material, personnel from ational reasons for newsmen to pool his area should be contacted in ad- copy, such messages shall be filed as vance, if possible, to determine if and ‘‘multiple address messages’’ or book when they would be available for inter- messages, as appropriate, or when re- views and photos. quested by the newsmen concerned. (5) Representatives of press associa- (8) If the locale of the exercise per- tions and radio and TV networks will mits newsfilm and press mail to be be embarked in the Exercise Command- flown ashore, flights should be sched- er’s flagship or the Exercise Control uled on a high priority basis to connect ship, when possible. This ship should with scheduled commercial air traffic. also control the ship-to-shore press Operational aircraft as well as sched- radio and teletype (RATT). uled government air flights should be (6) When more than one representa- considered for delivery of television tive from the same medium is em- news film, radio tapes and photography barked, an attempt should be made to to the nearest commercial communica- have them located at separate vantage tions facility. points. (e) Voluntary submission of material by (d) Communications. (1) Every effort a newsman for security review. When a will be made to provide suitable com- review is not required but is sought by munication facilities for newsmen em- the newsman, no attempt will be made barked (including equipment and per- to delete or change any material, sonnel, if feasible). whether or not it appears critical of (2) All persons embarked with per- the Navy or of naval personnel. If any mission of proper authority and accred- classified information is included, the ited as correspondents are eligible to newsman will be asked to delete it. In file press traffic, as authorized by the addition, his attention will be drawn to procedures set forth in Naval Tele- any inaccurate or possibly misleading communication Procedures (NTP–9), statements. ‘‘Commercial Communications.’’ [41 FR 29101, July 15, 1976, as amended at 44 (3) Navy radio or wire transmission FR 6390, Feb. 1, 1979] facilities, where available, may be made available to news media (includ- § 705.15 Employment of Navy person- ing accredited civilian photographers) nel as correspondents or staff mem- when operational requirements permit, bers of civilian news media. in accordance with instructions set (a) A member of the naval service on forth by the Director of Naval Commu- active duty or Navy civilian may act as nications. This includes making live correspondent for a news periodical or
131
VerDate 25
service, radio or TV station or net- sonnel with personal cameras within work, or may work part-time for such the jurisdiction of the command to pro- an organization. The Secretary of the tect classified information or to ac- Navy will, however, be immediately in- quire photos for official use, including formed, via the Chief of Information. public affairs. Photographs taken by (1) See section 0307 (par. 5), section bystanders at times of accident, com- 0308 (par. 4), and section 0309 (par. 3) of bat, or similar significant events can the Navy Public Affairs Regulations be valuable for preparation of official for regulations referring to personnel report and public release. They should assigned to public affairs staffs receiv- be collected for screening and review as ing compensation for such work. expeditiously as possible. (2) In time of war, only personnel as- (iv) Amateur photographers should signed to public affairs billets and such also be encouraged to volunteer the use other personnel as the Secretary of the of interesting or significant photos for Navy may authorize can act as cor- public affairs use. respondents for civilian media. (v) Photos made by naval personnel, (b) Military personnel on active duty with either personal cameras and film, and Navy civilians may not serve on Navy equipment and film, or any com- the staff of a ‘‘civilian enterprise’’ bination thereof, may be designated newspaper published for personnel of a ‘‘Official Navy Photo’’ if it is consid- Navy installation or activity. ered in the best interests of the Navy. (A) All precautions will be taken to § 705.16 Navy produced public infor- protect such film from loss or damage, mation material. and all unclassified personal photos not (a) Still photo—(1) General. (i) The pol- designated as ‘‘official’’ will be re- icy and procedures given for media pro- turned to the owner immediately after duced still photos in § 705.10, apply to review. Navy produced photos. (B) When a photo taken by an indi- (ii) The Office of Information does vidual who is not an official photog- not issue, nor have funds available for rapher is selected for public affairs re- the purchases of, any photographic lease: equipment or supplies for Navy com- (1) The photographer will receive mands. Details on the establishment of credit for his work in the same manner authorized laboratories and acquisition as an official photographer. of equipment and supplies are given in (2) The original negative or trans- the Manual of Navy Photography parency will be retained and assigned (OPNAVINST 3150.6D). an official file number. It will then be (2) Photographic coverage of command handled like any other official Navy events. (i) If more than two photog- photograph. raphers are required to cover a public (3) At least one duplicate negative or event, consideration should be given to transparency of each unclassified per- having them wear appropriate civilian sonal photo which has been designated attire. as ‘‘official’’ will be prepared and deliv- (ii) Personnel in uniform who are ered to the photographer. A black-and- amateur photographers and who are at- white print may also be prepared for tending the event as spectators will the photographer’s personal use. not be discouraged from taking photos. (b) Audiovisual. (1) The Chief of Infor- (3) Unofficial photos taken by Navy per- mation releases TV featurettes directly sonnel. (i) The following regulations to local TV stations and the Office of apply to Navy civilian employees and Information’s Branch Offices (NAV to Navy personnel in transit through a INFO’s). After such featurettes have command, as well as to active duty been cleared for public release by the personnel assigned to the command. Assistant Secretary of Defense (Public (ii) Personal cameras and related Affairs). equipment are permitted on Navy (2) The Assistant Secretary of De- ships, aircraft and stations at the dis- fense (PA) must approve, prior to com- cretion of the officer in command. mitment of funds, the initiation of (iii) An officer in command may Navy audiovisual productions intended screen all photos taken by naval per- for public release.
132
VerDate 25
(3) Motion picture film. scope and type, and is limited to those (i) Film of major news value will be occasions which are: In keeping with forwarded immediately, unprocessed, the dignity of the Department of the to the Commanding Officer, U.S. Naval Navy, in good taste and in conformance Photographic Center. The package with the provisions of part 721 of this should be labeled as follows: chapter. The national, regional, state
NEWS FILM—DO NOT DELAY or local significance of the event and the agency sponsoring the event will be Commanding Officer, U.S. Naval Photo- used as guides in determining the scope graphic Center (ATTN: CHINFO Liaison), Washington, DC 20374. and type of Navy participation to be authorized. NEWS FILM—DO NOT DELAY (d) Participation in community rela- The Commanding Officer of the Naval tions programs is authorized and en- Photographic Center will be advised couraged to accomplish the aims and (with an information copy to the Chief purposes as set forth in § 705.18 (follow- of Information) of its forwarding, the ing). Where mutually beneficial to the subject, type and amount of footage, Department of Defense and the public, method of delivery, and estimated time support authorized and provided is al- of arrival in Washington. ways subject to operational consider- (ii) The original negative of motion ations, availability of requested sup- picture photography of feature value port and the policy guidance provided (photography which will not lose its herein. timeliness over a reasonable length of (e) Military personnel, facilities, and time) will be forwarded to the Naval materiel may be used to support non- Photographic Center, and a copy of the government public affairs programs forwarding letter will be sent to the when: Chief of Information. (1) The use of such facilities, equip- (c) Fleet Home Town News Center ment and personnel will not interfere (FHTNC). (1) All public affairs officers with the military mission or the train- will assure that appropirate news and ing or operational commmitments of photo releases on personnel of their the command. commands are regularly sent to the Fleet Home Town News Center. (2) Such programs are sponsored by (2) Procedures, requirements and for- responsible organizations. mats are contained in CHIN–FOINST (3) Such programs are known to be 5724.1. nonpartisan in character, and there is no reason to believe that the views to [41 FR 29101, July 15, 1976, as amended at 44 be expressed by the participants will be FR 6390, Feb. 1, 1979] contrary to established national pol- § 705.17 Participation guidelines. icy. (f) The sponsoring organizations or (a) The provisions of this section groups will be clearly identified in all refer to participation by naval person- cases where naval personnel partici- nel and use of Navy facilities and mate- pate as speakers, or military support is rial in events sponsored by nongovern- ment organizations except where oth- furnished. erwise stated. (g) Public affairs programs sponsored (b) In accordance with the estab- by civilian organizations will not be lished responsibilities of local officers cosponsored by a naval command un- in command, these officers will con- less expressly authorized by the Chief tinue to determine whether facilities, of Information. equipment and personnel within their (h) Participation will not normally cognizance may be provided for such be authorized in public events when the programs (except in the Washington, presence of military participants de- DC area where the Assistant Secretary prives civilians of employment. Offi- of Defense (Public Affairs) is the au- cers in command will screen all re- thorizing authority). quests for use of material and person- (c) Officers in command will ensure nel in Navy-sponsored social functions that participation is appropriate in held off military installations.
133
VerDate 25
(i) Navy participation and coopera- lations activities and events, as appro- tion must not directly or indirectly en- priate. This includes but is not limited dorse, or selectively benefit, or appear to the following: to endorse, benefit or favor, any pri- (i) Ensure that the minority commu- vate individual, group, corporation nity is aware of the procedure for ob- (whether for profit or nonprofit), sect, taining Navy support for community quasi-religious or ideological move- events and that they are appraised of ment, fraternal, or political organiza- the use of Navy demonstration teams, tion, or commercial venture, or be as- units, and speakers. sociated with the solicitation of votes (ii) Encourage Navy involvement in, in a political election. and attention to, local minority com- (1) Providing use of government fa- munity events. cilities, such as transportation, hous- (iii) Continue to cultivate a rapport ing, or messing, at government expense with key members of all minority com- to private groups is normally inter- munities. preted as a selective benefit or favor (k) Participation is not authorized if and is not authorized as part of a com- there is fund raising of any type con- munity relations program. Therefore, nected with the event, except as pro- such provisions are normally not au- vided for in § 705.34. thorized as part of a community rela- (l) No admission charge may be lev- tions program, even though certain ied on the public solely to see an uses of facilities may be authorized Armed Forces demonstration, unit, or under directives on domestic action or exhibit. other programs. (1) When admission is charged, the (2) The above does not bar private Armed Forces activity must not be the groups from providing entertainment sole or primary attraction. on base. However, the appearance must (2) A general admission charge need be for entertainment and not for fund- not be considered prohibitory to Navy raising, or any political or promotional participation, but no specific or addi- purpose. tional charge may be made because of (j) Community relations programs Navy participation. must always be conducted in a manner (3) Participation shall be incidental free from any discrimination because to the event except for programs of a of race, creed, color, national origin, or patriotic nature, celebration of na- sex. tional holidays, or events which are (1) Navy participation in a public open to the general public at no charge event is not authorized if admission, for admission. seating and other accommodations and (4) The provisions of this paragraph facilities are restricted in a discrimina- do not apply to the Navy’s Blue Angel tory manner. Flight Demonstration Team or to the (2) Exceptions for participation may Navy Band and other special bands en- be made under certain circumstances gaged in authorized concert tours con- for an ethnic or ideological group when ducted at no additional cost to the gov- they do not entertain any purpose of ernment. discriminating against any other (m) Some participation in or support group. Any such exceptions must be re- of commercially sponsored programs ferred to the Chief of Information for on audio or visual media is allowable. consideration. See §§ 705.7 and 705.8. (3) Support to nationally recognized (n) Some participation which sup- veterans’ organizations is authorized ports commercial advertising, public- when the participation is in support of ity and promotional activities or positive programs which are not in events is allowable. See section 0405, themselves discriminatory. par. 3 of the Navy Public Affairs Regu- (4) Navy support to nonpublic school lations. activities is authorized when the par- (o) Navy speakers may be provided ticipation is clearly in support of edu- for certain events at which other forms cational programs or Navy recruiting. of Navy participation may not be ap- (5) Commands should ensure minor- propriate. See section 0604, par. 8 of the ity participation in all community re- Navy Public Affairs Regulations.
134
VerDate 25
(p) When participation is in the mu- (w) Procedures for requesting partici- tual interest of the Navy and the spon- pation are addressed in § 705.21. sor of the event, participation will be [41 FR 29101, July 15, 1976, as amended at 44 authorized at no additional cost to the FR 6390, Feb. 1, 1979] government. Additional costs to the government (travel and transportation § 705.18 Authority and coordination. of military personnel, meals and quar- (a) Each naval command will coordi- ters, or standard per diem allowances, nate its community relations program etc.) will be borne by the sponsor. with the senior authority having re- (q) Department of Defense policy pro- sponsibility for community relations in hibits payment by the Armed Forces its area (District Commandant, Unified for rental of exhibit space, utilities, or Commander, or other). janitorial costs. Other exceptions may (b) Within policy limitations out- be given under unusual circumstances. lined in this section, the command re- ceiving a request for Navy participa- (r) Navy participation in professional tion, and processing the required re- sports events and post-season bowl sources, has the authority to process games will frequently be authorized at the request and provide the support re- no additional cost to the government, quested. will emphasize Joint Service activity (c) Requests for support exceeding when possible, and must support re- local capability, or requiring approval cruiting programs. Chief of Informa- from higher authority, or requiring an tion approval is required. exception to policy will be referred as (s) Navy participation in public directed in § 705.21 for determination. events shall be authorized only when it (d) The Assistant Secretary of De- can be reasonably expected to bring fense (Public Affairs) has the overall credit to the individuals involved and responsibility for the Department of to the Armed Forces and their recruit- Defense community relations program. ing objectives. Naval personnel will not Civilian sponsors should be advised to be used in such capacities as ushers, address requests for approval of the fol- guards, parking lot attendants, runner lowing types of programs directly to or messengers, baggage handlers or for the Director of Community Relations, crowd control, or in any installations. Office of the Assistant Secretary of De- fense (Public Affairs), Pentagon, Wash- (t) Maximum advantage of recruiting ington, DC 20301: potential will be taken at appropriate (1) National and international events, events for which Navy participation including conventions, except those has been authorized. taking place in overseas areas which (u) Navy support will not normally are primarily of internal concern to be authorized for commercially-ori- Unified Commanders. ented events such as shopping center (2) Events outside the United States promotions, Christmas parades, and which have an interest and impact ex- other such events clearly sponsored by, tending beyond the Unified Command or conducted for the benefit of com- areas, or which require assistance from mercial interests. However, this policy outside the command area. does not preclude participation of Navy (3) Public events in the Washington, recruiting personnel and their organic DC area. equipment, materials and exhibits so (4) Aerial, parachute, or simulated long as their participation is not used tactical demonstrations held in the to stimulate sales or increase the flow public domain, except those held in of business traffic or to give that ap- areas assigned to overseas Unified pearance. Requests for exceptions will Commands. be considered on a case-by-case basis (5) Aerial reviews on military instal- lations within the United States if the by the Chief of Information. review involves more than one Service. (v) Questions as to appropriateness of (6) Programmed national sports, pro- Navy participation, or as to existing fessional athletic events, formal inter- Navy and OASD (PA) policy, may be national competitions, and contests be- referred to the Chief of Information. tween a Navy and professional team in
135
VerDate 25
the public domain. See section 0605, (b) Costs of participation will nor- par. 18 of the Navy Public Affairs Regu- mally be at government expense for the lations. following types of events and programs (7) Performing Navy units appearing when they are in the primary interest on regional or national television. of the Department of Defense: (8) Overall planning for Armed Forces (1) Public observances of national Day (not including local activities). holidays. (9) Granting exceptions to policy. (2) Official ceremonies and functions. (e) Overseas, Unified Commanders (3) Speaking engagements. are designated to act for and on behalf (4) Programmed, scheduled tours by of the Secretary of Defense in imple- Navy information activity support menting community relations pro- units (e.g., an exhibit from the Navy grams within their command areas and Exhibit Center) when this method of in granting any exceptions to policy or reaching special audiences is consid- regulations. This authority may be del- ered by the Secretary of the Navy to be egated. the most effective and economical way (1) Policy, direction and guidance for of accomplishing a priority public af- Unified Command community relations fairs program. programs are provided to Navy compo- (5) Tours by units (e.g., the Navy nents of these commands by the Uni- Band) for which appropriated funds fied Commander concerned. have been specifically provided. (2) Authority of the Commander-in- (6) Support of recruiting. Chief, Pacific extends to planning and (7) Events considered to be in the na- execution of community relations pro- tional interest, or in the professional, grams in Alaska and Hawaii. Participa- scientific, or technical interests of the tion in events held in Alaska and Ha- Navy or Department of Defense, when waii will be governed by the same prin- approved by the Secretary of Defense ciples as policies applicable to other or the overseas Unified Commander, as states. appropriate. (3) Community relations programs and events taking place within the (c) Navy participation in all other United States which have an effect on public events will normally be at no a Unified or Specified Command as a additional costs to the government. whole, or are otherwise of significant (1) Continuing type costs to the gov- concern to the Unified Command, re- ernment which would have existed had quire complete coordination through the Navy not participated in the event appropriate channels between the Uni- will not be reimbursed by the sponsor. fied Command and naval activities con- (2) Transportation costs may be ex- cerned. cluded from the costs to be borne by (4) Unified Commanders overseas re- the sponsor when the transportation quiring Navy support for a community can be accomplished by government reltaions program or participation in a aircraft on a normal training flight or public event should coordinate their re- opportune airlift. quirements with the appropriate Navy component command. § 705.20 Use of Navy material and fa- cilities. (f) The Secretary of the Navy will plan and execute Navy community re- (a) The loan of equipment and per- lations programs and approve Navy mission to use facilities will be depend- participation in public events not oth- ent on the following: erwise reserved or assigned to the Sec- (1) The program support must be retary of Defense. This authority may within the command’s public affairs re- be delegated. sponsibility. (2) The loan of the equipment must § 705.19 Financing. not interfere with the military mission (a) The financial requirements for of the command. community relations purposes will be (3) Equipment must be available kept to the minimum necessary to ac- within the command or obtainable complish Department of Defense objec- from another Navy command in the tives. local area.
136
VerDate 25
(4) The event must be of the type for thority, should be forwarded through which participation is considered ap- appropriate channels. propriate. (c) Requests for Armed Forces par- (5) It must not be in any direct or im- ticipation in public events are to be plied competition with a commercial submitted on official request forms source. (§§ 705.33, 705.34 and 705.36) by the spon- (6) There must be no potential danger sors of events occurring outside a com- to persons or private property that mand’s area of direct knowledge and could result in a claim against the gov- local capability, or involving a type or ernment. Safety requirements will be level of participation unavailable lo- observed. cally, or requiring approval of higher (b) Use of open mess facilities will be authority. permitted only under one of the follow- (d) Fact sheets expounding upon nor- ing conditions: mally requested assets are enclosed in (1) Incident to the holding of a pro- §§ 705.33, 705.34 and 705.36 and may be fessional or technical seminar at the reproduced and distributed locally. command. (e) The official request form is to be (2) Incident to an official visit to the used on all requests referred to the command by a civic group. Chief of Information and to the Office (3) Navy League Council luncheon or of Assistant Secretary of Defense (Pub- dinner meetings (not to exceed one per lic Affairs). quarter per group). § 705.22 Relations with community (4) Incident to group visits by the groups. Boy Scouts of America, Boys Clubs of America, the Navy League Sea Cadets (a) Naval commands will cooperate (by virtue of their federal charters), with and assist community groups Girl Scouts and the Navy League Ship- within their capabilities, to the event mates, and a few representative adult authorized by current instructions, and leaders. will participate in their activitis to the (c) Use of the official Navy flag will extent feasible. be in accordance with SECNAVINST (b) Navy commands will encourage 10520.2C and of official emblem in ac- membership of personnel in commu- cordance with OPNAVINST 5030.11B. nity organizations. (c) Officers in command will withhold (d) Requests not meeting the criteria approval of requests from community cited here, but which are considered by groups, organizations or individuals the officer in command to have merit, whose purposes are unclear, pending may be referred to the Chief of Infor- advice from the Chief of Information. mation. (d) Commands may make facilities, [41 FR 29101, July 15, 1976, as amended at 44 less housing and messing, available to FR 6391, Feb. 1, 1979] community groups, at no expense to the government, when it is in the best § 705.21 Requests for Navy participa- interest of the Navy to do so. Mess fa- tion. cilities may not be used for meetings of (a) Decisions will be made on a case- civic groups or other asociations unless by-case basis. Events which are inap- all the members of the group concerned propriate for one type of participation are authorized participants of the mess may be entirely appropriate for an- as prescribed in NAVPERS 15951, ex- other type of participation. A positive cept as provided below: and flexible approach should be em- (1) Requests to make open mess fa- ployed. cilities available to professional or (b) Requests by civilian organizations technical seminars or civic groups for Navy participation in programs or meeting in connection with an official events they sponsor should be ad- visit to the activity may be submitted dressed to the nearest naval installa- to the officer in charge of the mess, or tion and should be evaluated and au- other appropriate authority. Such re- thorized at that level if possible. Re- quests may be approved when it is quest exceeding local resoures, or re- shown that the inspection of the activ- quiring authorization from higher au- ity or the holding of a professional
137
VerDate 25
seminar is of principal importance and mation) and from the Assistant Sec- the use of mess facilities is incidental retary of Defense (Public Affairs). thereto. (3) Commands will maintain the (2) Because of the exceptional nature same relationship with labor unions as of the Navy League, as recognized by with other community groups and will the Secretary of the Navy, open mess not take action in connection with facilities may be used for luncheon or labor disputes. Personnel inadvertently dinner meetings of Navy League Coun- or incidentally involved in labor dis- cils, but not more often than once per putes will consult officers in command quarter per group. for guidance. (e) Relations with Industry and (f) Emergency Assistance to the Com- Labor in the Community (refer to munity: SECNAVINST 5370.2F and DOD Direc- (1) Navy commands will offer and tive 5500.7): provide assistance to adjacent commu- (1) Relations with Navy contractors nities in the event of disaster or other and with industry and business in gen- emergency. eral are the responsibility of the officer (2) The Chief of Information will be in command, with the assistance of his advised immediately of action when public affairs officer. taken, and copies of subsequent reports (2) Navy commands will cooperate to the Chief of Naval Operations will be with industry and its representatives forwarded to the Chief of Information. in planning and executing community (3) Navy commands will participate relations projects of mutual interest. in planning by local Civil Defense offi- (i) Visits to commands will be sched- cials. uled for industrial and employee [41 FR 29101, July 15, 1976, as amended at 44 groups under the same conditions as FR 6391, Feb. 1, 1979] for other civilian groups. (ii) A contractor may be identified in § 705.23 Guest cruises. a news release, exhibit, or the like (a) General policy. (1) The embar- whenever the major responsibility for kation of civilian guests in Navy ships the product can be clearly and fairly is appropriate in the furtherance of credited to him. In such cases, both the continuing public awareness of the manufacturer’s name for the product Navy and its mission. and the Navy designation of it will be (i) Examples of embarkations for used. public affairs purposes are (but not (iii) Commands will not solicit, nor limited to): Individuals, community authorize others to solicit, contractors service clubs, civic groups, the Navy to provide advertising, contributions, League, and trade and professional as- donations, subscriptions, etc. Where sociations. there is a legitimate need for indus- (ii) Embarkation of media represent- trial promotion items, such as scale atives on assignment is discussed in models, the command will contact the § 705.14. Chief of Information for advice as to (iii) Other categories may be estab- the procedure for requesting procure- lished by the Secretary of the Navy, ment. subject to the approval of the Sec- (iv) Similarly, if Defense contractors retary of Defense. wish to distribute information mate- (2) It has also been demonstrated rial through official Navy channels, the that the occasional embarkation on Office of Information will be queried as cruises of families and personal guests to the desirability and feasibility of of naval personnel has contributed ma- undertaking the desired distribution. terially to the morale of the family cir- (v) Visits to contractor facilities are cle and has instilled in each individual governed by the provisions of DOD a sense of pride in his ship. For further Manual 5520.22–M (Industrial Security information see OPNAVINST 5720.2G. Manual for Safeguarding Classified In- (3) Embarkations should be con- formation). If nationally known press ducted within the framework of regu- representatives will be involved, prior larly scheduled operations; underway approval must be obtained both from periods solely to accommodate guests the contractor (via the Chief of Infor- are not authorized.
138
VerDate 25
(4) Commander-in-Chief, Pacific dinate commands, will be submitted to Fleet, Commander-in-Chief, Atlantic the Chief of Information, who will ef- Fleet, Commander-in-Chief, U.S. Naval fect coordination with the Chief of Forces Europe, Commander Military Naval Operations and/or the Assistant Sealift Command (and their subordi- Secretary of Defense (Public Affairs) as nate commands if so designated), Chief appropriate. of Naval Education and Training, and (iii) When guests debark in a foreign District Commandants may authorize port which is in the geographic area of the embarkation of female civilians for a Unified Command other than that in daylight cruises. Embarkation of civil- which the cruise originated, the Chief ians for overnight cruises must be au- of Information will coordinate travel thorized by the Chief of Naval Oper- by obtaining concurrence of all appro- ations via the Chief of Information. priate commanders and the approval of (5) All guest visits are normally au- the Chief of Naval Operations, and the thorized on an unclassified basis. Assistant secretary of Defense (Public (6) In all instances, due precautions Affairs) as appropriate. must be taken for the safety of the (2) Officers in command to whom au- guests. (See section 0403, pars. 6(b) and, thority to embark guests for public af- 6(e), of the Navy Public Affairs Regula- fairs purposes is delegated will make tions, for procedures to be followed in maximum use of this authority. the case of death of, or injury to, civil- (c) Secretary of the Navy Guest Cruise ians embarked on naval ships.) and Guest of the Navy Cruise Programs. (7) For further information on policy, (1) The objective of these two programs procedures, and eligibility criteria, see is: To expose top-level and middle-level OPNAVINST 5720.2G. opinion leaders in the fields of busi- (b) Authority. (1) Authority to estab- ness, industry, science, education, and lish procedures for the conduct of the labor to the operation of the U.S. embarkation of guests for public af- Navy, in order that they may gain a fairs purposes (including the Secretary better understanding of its capabilities of the Navy Guest Cruise and Guest of and problems, the complicated nature the Navy Cruise programs, which are of modern sea-based equipment, and discussed in § 705.24) is vested in the the high levels of responsibility and Secretary of the Navy. This authority training required of Navy men and is limited only insofar as the Chairman women. of the Joint Chiefs of Staff and the (2) In addition to policy contained in commanders of the Unified and Speci- paragraph (c)(1) of this section, the fol- fied Commands (and their component lowing policy guidelines apply to the commanders, if so designated) have the conduct of the Secretary of the Navy authority to use Navy ships to embark Guest Cruise and the Guest of the Navy individuals other than news media rep- Cruise Programs. resentatives for public affairs purposes. (i) Secretary of the Navy Guest Cruise (i) Public affairs embarkations origi- Program. (A) Only aircraft carriers and nating within the geographical limits cruisers will be used. of the Unified Command will be ap- (B) Cruises will be conducted once proved by and coordinated with the each quarter on each coast, contingent commanders of such commands. This upon the availability of appropriate authority may be delegated. Requests ships. for such embarkations originating with (C) The optimum number of guests is the subordinate fleet or force command 15. of a Unified Command will be submit- (D) Guests will be drawn from top- ted via the operational chain of com- level executives and leaders who have mand, to the appropriate commander not had previous exposure to the Navy. of the Unified Command, unless dele- ‘‘Previous exposure’’ is defined as ac- gated. tive or reserve service in the U.S. Navy (ii) Requests for public affairs embar- or U.S. Marine Corps within the last 10 kations originating from any Navy years; membership in the Navy League source other than the Chairman of the or any other Navy-oriented organiza- Joint Chiefs of Staff, or the Unified and tion; or participation in a cruise on a Specified Commanders or their subor- U.S. Navy ship in the last 10 years.
139
VerDate 25
(E) Whenever feasible, Secretary of will be authorized subject to certain re- the Navy Guests will be greeted by strictions, and a listing of those re- CINCLANTFLT or CINCPACFLT, or in strictions. In addition, the following their absence by the SOPA. Com- statement will be included with each prehensive unclassified briefings will invitation, or form part of the attached be given dealing with the Navy’s mis- information sheets: sion, fleet operations, and current The Department of the Navy has no spe- problems. cific authority to use its funds to defray or (F) Cruises will vary in length from 3 reimburse any personal expenses of a navy to 7 days, when appropriate, to con- guest. As a result, the Department of the form with the operating schedule of the Navy cannot provide you with transpor- ship. tation to the port of embarkation or from (ii) Guests of the Navy Cruise Program. the port of debarkation back to your home. (A) All types of ships will be used. This Your expenses for meals will be quite nomi- nal while you are on board a naval ship or fa- will include carriers when available, cility. You should make provision for any ex- after selection of a cruise for the Sec- traordinary expense which may arise. For retary of the Navy Guest Cruise Pro- example, if a personal or other emergency gram. arises which necessitates your returning (B) Guest of the Navy Cruise guests home during the cruise, you should be pre- will be drawn from middle-level execu- pared to take commercial transportation at tives and leaders who have not had pre- your own expense from the most distant vious exposure to the Navy. Guests point on the cruise itinerary. Navy ships and aircraft, by their very na- should include persons who have direct ture, present certain hazards not normally impact on recruiting, such as second- encountered on shore. These hazards require ary school principals, guidance coun- persons on board to exercise a high degree of selors, coaches and teachers. care for their own safety. (C) Cruises of relatively short dura- Acceptance of this invitation will be con- tion (3 to 5 days) are preferred, al- sidered your understanding of the above ar- though cruises up to 7 days are author- rangements and limitations. ized. Protracted cruises will not be ap- (iii) Applicable to both programs. (A) proved except for special cir- Guests will provide their own transpor- cumstances. tation from home to the ship and re- (D) Invitations will be extended by turn, and must reimburse the Navy for the District of Commandants. Invita- living and incidental expenses while tions will include: embarked so that the program may be (1) Statement of the purpose of the conducted at no additional expense to Guest of the Navy Cruise Program. the government. (2) Authorization for embarkation (B) Because the number of billets and, if applicable, for COD flights, with available to accommodate all of the po- instructions for reporting on board. tential guests is limited, the guest’s (3) Name and rank of the command- opportunity to communicate his expe- ing officer and, if applicable, name and rience to his associates must be consid- rank of embarked flag officer. ered. For this reason, one of the cri- (4) A caution that guests should not teria for selection of guests will be accept the invitation unless they are in their level of activity in civic, profes- good health. sional, and social organizations. In (5) Statement to the effect that the nominating and selecting guests, effort tempo of operations might cause will be made to ensure that minority changes in scheduling which could re- citizens are included as appropriate. sult in the invitation having to be (C) Atlantic cruises will be made on withdrawn. ships operating between East Coast (E) The following necessary informa- ports, or between CONUS and the U.S. tion may be included separately with a Caribbean ports of San Juan, PR, or letter of invitation: Recommended Charlotte Amalie (St. Thomas), Virgin wardrobe, passport and immunization Islands. Pacific cruises will be made on requirements, availability of emer- ships operating between West Coast gency medical and dental facilities, ports: Between CONUS and ports in Ha- ship’s store and laundry facilities, waii, Alaska, Mexico or Canada; or be- statement that guest’s use of a camera tween ports within Hawaii or Alaska.
140
VerDate 25
(D) Guests will be informed of secu- ed unless sought by the participants. rity restrictions. Unclassified photog- At the same time, media inquiries or raphy should be permitted on board, as inquiries from the general public will pictures renew guests’ feelings of iden- be answered fully, the purposes of the tification with a ship. Guests will be cruise program outlined and the fact advised of areas, however, where pho- stressed that no cost to the govern- tography is prohibited, and security ment is incurred. regulations will be courteously but [41 FR 29101, July 15, 1976, as amended at 44 firmly enforced. FR 6391, Feb. 1, 1979] (E) Guests will be billeted in officers quarters and normally subsisted in the § 705.24 Exhibits. wardroom. It is not necessary that (a) Navy exhibits are representations guests be assigned individual rooms. or collections of naval equipment, Billeting with ship’s officers promotes models, devices and information and mutual understanding, and guests feel orientation material placed on public more closely identified with the ship’s display for information purposes before company. They will be invited to dine audiences at conventions, conferences, at least once in each mess on board, if seminars, demonstrations, exhibits, the length of the cruise permits. fairs, or similar events. Also included Guests will be encouraged to speak are general purpose displays in public freely and mingle with the crew. buildings or public locations. Museums (F) Guests will be accorded privileges also occasionally request a Navy ex- of the cigar mess commissioned offi- hibit on a permanent or temporary cers mess (open) ashore—with the ex- loan basis. ception of package store privileges— (1) Exhibits may be displayed in any and the use of ship’s or Navy Exchange appropriate location or event (includ- laundry and tailor shops. Other Navy ing commercially owned spaces such as Exchange privileges will be limited to shopping centers, malls, etc.) provided purchase of items for immediate per- it is clearly established that such areas sonal use. are places the general public frequents (G) Only emergency medical and den- and that the exhibit is not for the pur- tal care will be provided and then only pose of drawing the public to that loca- where civilian care is not conveniently tion, and that it is determined that available. participation is in the best interests of (1) In the event of injury to civilians the Department of Defense and the De- embarked in Navy ships and aircraft or partment of the Navy. visiting naval activities, commanding (b) Exhibits will be used for the fol- officers will notify the Chief of infor- lowing purposes only: mation, the appropriate Commandant, (1) To inform the public of the Navy’s and operational commanders, by mes- mission and operations. sage, of the injury and action taken. (2) To disseminate technical and sci- (2) In the event of an emergency not entific information. covered by Navy Regulations, the facts (3) To assist recruiting of personnel and circumstances will be reported im- for Navy military service and for civil- mediately to the Secretary of the ian employment in the Department of Navy. the Navy. (H) Guests may be allotted time for (c) Exhibit requests and procedures: side trips at their own expense when an (1) Requests for Navy exhibits, other itinerary includes naval activities or than local exhibits may be forwarded ports adjacent to recognized points of to the Navy Recruiting Exhibit Center interest. via the local Navy recruiter with an in- (I) As a souvenir of the cruise, it is formation copy to the Chief of Infor- suggested that guests be provided with mation. The primary mission of the a photograph of the ship, perhaps suit- Navy Recruiting Exhibit Center is to ably inscribed by the commanding offi- support local Navy recruiters. Requests cer prior to debarkation. for exhibits for community relations (J) Any publicity will be limited to events will be considered favorably that initiated by the participants. only when not in conflict with recruit- Navy-sponsored publicity will be avoid- ing requirements.
141
VerDate 25
(i) Requests for exhibits must be sub- (iii) The project officer should assist mitted well in advance of their pro- in determining the actual location of posed dates of use. the exhibit, make arrangements for as- (ii) Requests for mobile exhibits re- sembling and disassembling the exhibit quiring tractor-trailer transportation material, and supervise these oper- should be forwarded prior to November ations. 15th previous to the year desired. A (iv) The project officer will ensure tour itinerary of mobile exhibits will Navy and Department of Defense poli- then be established for the following cies are followed, and will coordinate year. local news releases concerning Navy (iii) The period of time for which an participation. exhibit is authorized will be deter- [41 FR 29101, July 15, 1976, as amended at 44 mined by the nature of the event and FR 6391, Feb. 1, 1979] the type of exhibit (e.g., equipment from local resources used for a local § 705.25 Navy Exhibit Center. celebration would normally not be ex- (a) The center is a field activity of hibited for more than three days; but, the Chief of Information and is located a formal exhibit at an exposition might in the Washington Navy Yard. Its pri- remain for the duration of the event). mary mission is to produce, transport (2) The office of the Assistant Sec- and display U.S. Navy exhibits retary of Defense (Public Affairs) is the throughout the United States. It also approving authority for Navy exhibits facilitates assignments of Navy combat in events of international or national artists and, additionally, produces ex- scope, or those requiring major coordi- hibits for its own tours and for short- nation among the Armed Forces, or term loans to naval commands. with other agencies of the Federal Gov- ernment. [41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979] (i) All Navy activities will forward such requests to the Chief of Informa- § 705.26 Exhibit availability report. tion for coordination with the OASD (a) A center index of exhibits which (PA). are available at the local level in each (ii) Subordinate commands of a Uni- Naval District is maintained by the ex- fied Command will forward exhibit re- hibit center. To achieve maximum ef- quests of the above types to the Unified fectiveness for an overall integrated Commander concerned, via the chain of program, an up-to-date registry of all command. exhibits is required. (3) The official OASD(PA) Request (b) A current inventory of exhibits Form for Armed Forces Participation headquartered in Washington, DC, and will be used. See Armed Forces Request managed by the Navy Recruiting Ex- Form, § 705.36. hibit Center for scheduling purposes (4) Requests for exceptions to policy may be obtained by writing to: Officer- for exhibit displays should be for- in-Charge, Navy Recruiting Exhibit warded to the Officer in Charge, Navy Center, Washington Navy Yard, Wash- Recruiting Exhibit Center. ington, DC 20374. (5) Policy guidance on costs is de- [41 FR 29101, July 15, 1976, as amended at 44 fined in § 705.19. FR 6391, Feb. 1, 1979] (6) Occasionally, a project officer will be assigned to coordinate use of the ex- §§ 705.27–705.28 [Reserved] hibit with the sponsor. (i) Project officers are normally com- § 705.29 Navy Art Collection. missioned officers, equivalent civilian (a) The U.S. Navy has continued to personnel, local recruiters or reserv- record its military actions, explo- ists, who have been assigned the re- rations, launchings, etc., in fine art sponsibility of coordinating Service form since before World War II. The participation in a special event. present Navy Combat Art Collection (ii) The project officer should estab- contains over 4,000 paintings and lish immediate liaison with the spon- sketches. A significant number of new sor. works is being added each year. The
142
VerDate 25
combat artists of World War II have vitation to artists selected for assign- been replaced by civilian artists who ment. witness today’s Navy in action, record (2) When directed by the Chief of In- their impressions, and donate their formation or other appropriate Navy works of art to the Department of the authority, a NACAL project officer will Navy. perform the following functions: (1) The voluntary services of most of (i) Act as a local liaison officer for the artists are arranged through the the NACAL Program. Navy Art Cooperation and Liaison (ii) Assist NACAL artists on assign- Committee (NACAL) which operates in ments within his area. close cooperation with the Salmagundi (3) The Curator Navy Combat Art Club of New York City and the Munici- Center, in coordination with the Chief pal Art Department of the City of Los of Information, will: Angeles. (i) Plan trips for the NACAL Pro- (2) The Chief of Information has es- gram. tablished liaison with the Salmagundi (ii) Approve requests for art displays. Club in order to maintain a continuing historical record of the Navy. Orga- (iii) Provide logistic support for the nized in 1871, the Salmagundi Club is maintenance, storage, shipment and the oldest club of professional artists display of the Navy Combat Art Pro- in the United States. The Club ap- gram. pointed a Navy Art Cooperation and (c) Requests for art displays should Liaison (NACAL) Committee to advise be forwarded to the Director, Commu- the Navy on art matters and to nomi- nity Relations Division, Office of Infor- nate artists for assignment to paint mation, Navy Department, Washing- Navy activities through the world. The ton, DC 20350. Chief of Information reviews the nomi- (d) Exhibition of Navy Art: nations, and issues SECNAV invita- (1) Operation Palette I’’ is a carefully tional travel orders to each artist ap- selected group of 75 to 100 combat art proved. paintings depicting Navy and Marine (3) The following policy pertains: Corps activities during World War II. (i) All finished art portraying the The schedule of ‘‘Operation Palette I’’ Navy and produced by Navy artists on is promulgated by the Officer-in- active duty for that purpose and by Charge, Navy Recruiting Exhibit Cen- guest artists working under invita- ter and supervised by the Chief of In- tional travel orders becomes the prop- formation, with the concurrence of Dis- erty of the Department of the Navy. trict Commandants. Schedules are ar- (ii) Civilian artists selected to paint ranged so that the exhibition travels Navy life through cooperation of a pri- within a particular Naval District for vate sponsor and the Chief of Informa- several months at a time. District tion may be authorized by the Chief of Commandants designate project offi- Information or the Office of the Sec- cers for each city where ‘‘Operation retary of Defense to retain their works. Palette I’’ is exhibited. The project of- (iii) Paintings, sketches, drawings ficer makes all arrangements, includ- and other forms of artwork will not be ing suitable location, publicity and accepted by the Department of the personnel to assist the chief petty offi- Navy unless all reproduction rights are cer who travels with the collection. surrendered and unless they become Promotional kits are provided by the the permanent property of the Depart- Officer-in-Charge, Navy Recruiting Ex- ment of the Navy. hibit Center. Requests for exhibitions (iv) Requests for reproduction of are not desired, since the collection al- combat art for use in advertising or ways travels on a prearranged tour. publication will be directed to the (2) ‘‘Operation Palette II’’ consists of Chief of Information. 75 to 100 paintings representative of the (b) Responsibilities: worldwide operations of the contem- (1) The Chief of Information exercises porary Navy and Marine Corps * * * supervision and control of the Navy the Navy today * * *, and travels on Art Program and issues SECNAV invi- prearranged tours similar to ‘‘Oper- tational travel orders and letters of in- ation Palette I.’’
143
VerDate 25
(3) Other exhibitions of original such cooperation involves no addi- paintings from the Combat Art Collec- tional expense to the government. tion may be scheduled on request by ei- (c) The Chief of Naval Operations has ther Navy commands or civilian art cognizance of all assistance provided groups. Requests should be directed to by the Navy to all Aerospace Edu- the Director, Community Relations Di- cation Workshop program. A summary vision, Office of Information, Navy De- report of local command participation partment, Washington, DC 20350 and in Aerospace projects will be submitted contain the following: to the Chief of Naval Operations via (i) The occasion. the appropriate chain of command. In- (ii) Inclusive dates. (Not less than 10 formation copies of such reports will be days or more than 90 days sub-cus- sent to Commander, Navy Recruiting tody.) Command and the Chief of Informa- (iii) Expected attendance and type of tion. For further information see publicity planned. OPNAVINST 5726.1C. (iv) Amount of space allotted. (v) If Navy-sponsored show, certifi- § 705.31 USS Arizona Memorial, Pearl cation that 24-hour security will be Harbor. provided for the paintings while in cus- (a) Limited space and the desirability tody. of keeping the Memorial simple and (vi) If civilian-sponsored show, state- dignified require the following prac- ment that transportation and insur- tices to be observed: ance requirements will be met. (Phys- ical security must be available for ex- (1) Rendering of formal ceremonies hibit, with an attendant on duty during on the USS Arizona Memorial will be open hours and locked building or confined to Memorial Day. other means of protecting exhibit when (2) Observances on December 7, or closed to the public.) any other date, at the request of indi- (e) Navy Combat Art Lithograph Pro- viduals or organizations, will consist of gram: simple wreath-laying, or other appro- (1) This program makes available full priate expressions conducted with dig- color, high quality lithographs which nity. are faithful reproductions of the origi- (3) Plaques intended for display on nal artwork on quality paper of se- the Memorial may be presented by lected works of art from the Navy Art headquarters of national organizations Collection. only. Plaques from regional, state or (2) Additional information and order- local organizations cannot be accepted. ing details are contained in CHINFO Only one plaque will be accepted from NOTICE 5605, which is issued periodi- any organization. The overall size of cally. the plaques, including mounting, must be no larger than 12 inches square. [41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979] (b) The Commandant, Fourteenth Naval District, is designated to coordi- § 705.30 Aerospace Education Work- nate all formal or informal observances shop. involving the Memorial. (a) This program is devised by the Navy to give students at colleges and § 705.32 Aviation events and parachute demonstrations. universities conducting teacher train- ing a comprehensive background in the (a) Armed Forces aircraft and para- field of aviation. The teachers in turn chutists may be authorized to partici- integrate this knowledge into their pate in appropriate in public events education programs. which meet basic Department of De- (b) Appropriate commands are en- fense criteria. This participation may couraged to provide assistance to edu- be one of the officially designated mili- cational institutions sponsoring the tary flight or parachute demonstration workshop program: Provided, That such teams, flyover by aircraft, a general support does not interfere with the demonstration of capabilities by air- command’s primary mission and that craft, or the static display of aircraft.
144
VerDate 25
(b) Events which are appropriate for (Community Chest). As a minimum, aviation participation include: Dedica- the sponsor must agree to provide at tion of airports; aviation shows; air- least half of the profit above costs to craft exposition; air fairs; recruiting the Combined Federal or United Givers programs; civic events which contrib- Campaigns to receive Armed Forces ute to the public knowledge of naval support. aviation equipment and capabilities (e) Request form. This form is used to and to the advancement of general request military flight and parachute aviation; public observances of certain demonstration team participation in national holidays (Armed Forces Day, public events. The information is re- Veterans Day, Memorial Day and Inde- quired to evaluate the event for appro- pendence Day); national conventions of priateness and compliance with De- major veterans organizations; memo- partment of Defense policies and for rial services for deceased, nationally coordination with the units involved. recognized dignitaries; and receptions for foreign dignitaries. GENERAL (c) Support of Armed Forces recruit- 1. Title of Event —————————————— ing is the primary purpose of military Town or City: ——————— State: ————— flight and parachute demonstration Date: ———————— Time—From: ————— teams. Armed Forces recruiting teams To: ———— Place: (Airport, etc.) —————— are available to assist sponsors in co- 2. Sponsor: ———————————————— ordinating advance publicity and infor- 3. The sponsor (is) (is not) a civic organiza- tion and the event (does) (does not) have the mation coverage to insure maximum official backing of the mayor. exposure for the demonstration team 4. The sponsoring organization (does) (does and the event. This assistence is at no not) exclude any person from its membership additional expense to the sponsor; how- or practice any form of discrimination in its ever, the sponsor is required to give functins, based on race, creed, color or na- full support to the recruiting effort and tional origin. to cooperate fully with local service of- 5. Sponsor’s representative authorized to ficials. Such support could include (but complete arrangements for Armed Forces is not limited to) the provision of participation and responsible for reimburs- ing Department of Defense for accrued ex- prime space for recruiters at the event penses when required: site and the provision of courtesy passes in controlled quantities to re- Name: ——————————————————— cruiters for the purpose of bringing re- Address: —————————————————— cruit prospects and recruiting advisors City, State: ————————— Zip: ———— Telephone: (Office) ———— (AC) ————— to view the show. ———————————————————————— (d) DOD support of air show fund (home) —————————— (AC) ——————— raising efforts in the form of provision ———————————————————————— of military flight and parachute dem- 6. Purpose of this event (explain fully): —— onstration teams is limited to charities ———————————————————————— recognized by the Federal Services 7. Expected attendance: ————————— Fund-Raising Program. These include 8. Is this event being used to promote funds such agencies as the United Givers for any purpose? —————————————— Fund, Community Chests, National 9. Admission charge: ——————————— Health Agencies (as a group), Inter- ‘‘Charge for seating: ————————— —— 10. Disposition of profits which may ac- national Service Agencies and the mili- crue: ————————————————————— tary aid societies. Armed Forces sup- 11. Will admission, seating and all other port to fund-raising events for a single accommodations and facilities connected cause, even though the charity is a with the event be available to all persons member of a federated or joint cam- without regard to race, creed, color or na- paign or donates in part to one or sev- tional origin? ———————————————— eral of the campaigns, is inconsistent 12. Will the standard Military Services al- with the basic position of Department lowance for quarters and meals be provided of Defense. The name of the nearest by the sponsor for Armed Forces partici- pants? ———————————————————— Combined Federal Campaign coordina- 13. Will transportation at sponsor’s ex- tor will be supplied to the sponsor, or if pense be proviced for Armed Forces partici- he chooses, he might elect to work pants between the site of this event and with the local United Givers Fund hotel? ————————————————————
145
VerDate 25
14. Will telephone facilities, at sponsor’s 6. Flight and Parachute Team demonstra- expense, be made available for necessary of- tions require that the sponsor provide a re- ficial communications regarding the event? cent aerial photograph, taken vertically ———————————————————————— from an altitude of 5,000 feet or higher, to 15. It may be necessary for representatives the team(s) giving the demonstration. Will of the requested unit to visit the site prior to this requirement be met? —————————— the event. Will transportation, meals and 7. Flight Team demonstrations and Static hotel accommodations be provided by the Aircraft displays require that the sponsor sponsor? ——————————————————— provide suitable aircraft fuel (JP jet fuel or ———————————————————————— aviation gas, as appropriate) and pay the 16. Please describe the space which will be cost of transporting and handling this fuel, if provided to recruiters: ——————————— it is not available at the staging airport ———————————————————————— under military contract prices. Will this re- ———————————————————————— quirement be met? ————————————— ———————————————————————— 8. Flight Team demonstrations and Static 17. Designate charity beneficiary(s): ——— Aircraft displays require mobile firefighting, ———————————————————————— crash and ground-to-air communications equipment at the demonstration site. Will FLIGHT TEAM, PARACHUTE TEAM, FLYOVERS, this requirement be met? —————————— STATICS 9. Flight Teams and Static Aircraft dis- plays require that the sponsor provide 1. This request is for (check appropriate guards for the aircraft that land and are line): parked at the site during their entire stay. Flight Team Demonstration ...... Will this requirement be met? ——————— U.S. Navy Blue Angels ...... 10. Parachute Team demonstrations may U.S. Air Force Thunderbirds. (Cost for either require that the sponsor arrange aircraft team is $1500.00 for each day team sched- uled at your event.) ...... transportation from the team’s home base to Aircraft Flyover: (No cost to sponsor.) ...... the location of the event, for use as a jump Static Aircraft: (Cost is $25.00 per day per crew- platform and return to the home base. Will member.) ...... this requirement be met, if necessary? ——— U.S. Army Silver Eagles: (Cost for this team is ———————————————————————— $750.00 for each day team scheduled at your 11. Name and address of any Armed Forces event.) ...... representative or government official with Parachute Team Demonstration U.S. Army whom you have discussed possible participa- Golden Knights: (Cost is $25.00 per day per man for each day required to support your tion: ————————————————————— event. Team consists of 10±14 personnel.) ...... ———————————————————————— (Other) ...... CERTIFICATION 2. Flight and/or Parachute Team dem- onstrations are restricted to appropriate I certify that the information provided events at airports, over open bodies of water, above is complete and correct to the best of or over suitable open areas of land. Please my knowledge and belief. I understand that give the specific location of your event ——— representatives of the Military Services will ———————————————————————— contact me to discuss arrangements and If an airport, name of airdrome facility and costs involved prior to final commitments. longest usable landing runway. Airport: —— Signature: —————————————————— ———————————————————————— (Sponsor’s Representative) Runway data:——————————————feet. Date of Request: —————————————— 3. Flyovers, Flight and Parachute Team Return this form to: ——————————— demonstrations require that sponsors secure FAA clearance or waiver. Will steps be taken (f) Definitions. A flight team dem- by sponsor to accomplish this at least sixty onstration is an exhibition of precision days prior to the event? ——————————— aerial maneuvers flown by the official 4. Flight and Parachute Team demonstra- Department of Defense military flight tions must adhere to FAA regulations which demonstration teams, the U.S. Air specify that spectators not be permitted within 1500 feet of an area over which the Force Thunderbirds, the U.S. Navy flight demonstration takes place, or 250 feet Blue Angels and the U.S. Army Silver of the jump area over which parachutists are Eagles. An aircraft demonstration is a performing. What type of crowd control is flight demonstration by aircraft other planned? ——————————————————— than those of the teams listed above ———————————————————————— and designed to portray tactical capa- 5. Flight and Parachute Team demonstra- bilities of aircraft by a single aircraft tions require that an ambulance and a doctor (i.e., the U.S. Marine Corps ‘‘Harrier’’) be on the site during the demonstration. Will this requirement be met? —————————— or group of aircraft, including air-to- air refueling, helicopter hover and
146
VerDate 25
pick-up or rappelling capabilities, Low each day required to support your Altitude Parachute Extraction System, event, to include the days of travel if maximum performance take-off, etc. A required. Under normal conditions, this parachute demonstration is an exhi- group is comprised of fourteen mem- bition of free-fall and precision landing bers: Nine jumpers, three aircraft crew- techniques by the official DOD para- men, one ground controller, and a nar- chute team, the U.S. Army Golden rator. The sponsor will be advised by Knights. Other parachute demonstra- the Golden Knights in advance of the tions can be performed by the U.S. costs related to his event for which the Navy Parachute Team, or another un- government must be reimbursed. The official team or sports parachute club United States Army Silver Eagles heli- representing the Department of De- copter team, composed of seven heli- fense. A flyover is a flight of not more copters, performs precision formation than four aircraft over a fixed point at manuevers and solo helicopter aero- a specific time and does not involve batics to demonstrate the capabilities precision maneuvers or demonstra- of modern helicopters and the skill of tions. Flyovers are authorized for cer- Army aviators. The Silver Eagles per- tain events when the presence of formance lasts about 30 minutes and is Armed Forces aircraft overhead would conducted entirely in full view of spec- contribute to the effectiveness of the tators on the crowd line. The cost for event based on a direct correlation be- the team is $750 for each day a dem- tween the event and the aircraft. Fly- onstration is scheduled. The sponsor overs can also be authorized for occa- should make a check payable to the sions primarily designed to encourage Treasurer of the United States for the the advancement of aviation and which required amount and present it to the are of more than local interest. Fly- appropriate demonstration team com- overs by any of the official DOD flight mander in advance of the scheduled teams are not authorized. Parades are event. not considered an appropriate event for (2) Costs associated with static air- authorizing flyover support. The static craft are normally $25 per day for each display of aircraft is the ground display crew member plus possible fuel require- of any military aircraft and its related ments discussed below. Charges for any equipment, not involving flight, taxi- other military parachuting demonstra- ing or starting of engines. tion (i.e., U.S. Navy Parachute Team, (g) Events which are appropriate for local Armed Forces sport parachute Armed Forces aviation participation in clubs, etc.) will depend on the number the public domain include such activi- of personnel and transportation in- ties as dedication of airports and facili- volved. Checks payable to the Treas- ties, aviation shows, expositions, and urer of the United States should be fairs; and other civic events which con- made available to the appropriate air- tribute to the public knowledge of the craft commander for static displays or U.S. Military Services aviation equip- parachute team commander upon ar- ment and capabilities. The number one rival at the event. priority for utilization of military air- (i) As noted in the Department of De- craft and parachutists in such events fense request form, the sponsor is re- in the public domain is to support the quired to pay per diem costs for team recruiting aspects of the all-volunteer and static display crew members ex- force concept. The approval of any such cept for flyovers or aircraft demonstra- military demonstration will only be tions not involving landing. authorized if a maximum recruiting (3) These costs are binding after a benefit exists at each location. team or crew personnel have arrived at (h) Costs. (1) The cost for either the the show site, even though weather United States Air Force Thunderbirds conditions or other unforeseen cir- or the United States Navy Blue Angels cumstances force the event to be can- will be $1500 for each day a demonstra- celled. These funds provided by the tion is scheduled. If the United States sponsor will be utilized by team mem- Army Golden Knights precision para- bers or crew personnel for paying hous- chute team is scheduled for your event, ing and subsistence costs. The actual the cost will be $25 per man per day for breakdown of the per diem involved is
147
VerDate 25
$13.20 for housing, $9.30 for subsistence, an airport show site, the following and $2.50 for incidental expenses. In operational requirements must be met: those locations where housing and sub- (i) Minimum useable runway length sistence cannot be procured for these for the Thunderbirds is 5000 feet by 150 amounts, it will be the responsibility feet in width. of the sponsor to absorb the additional (ii) Minimum useable runway length cost. As stated, these costs will cover for the Blue Angels is 6000 feet by 150 participation but does not include cer- feet in width. tain ground support requirements (i.e., (iii) Minimum single landing gear ground transportation, telephone, etc.) load bearing capacity for Thunderbirds to be furnished by a sponsor as out- is 45,000 pounds; for Blue Angels, 21,000 lined in a team support packet. pounds. Tandem landing gear load (4) Other costs that could be incurred bearing capacity is 155,000 pounds for by the sponsor are in the area of the Blue Angels and Thunderbirds. sponsor’s agreement to provide suit- (2) A staged performance may not be able aircraft fuel (defined as JP jet fuel given if the location planned for the or aviation gas and lubricants) at U.S. show site does not meet these mini- Government contract prices. Where mums. The maximum distance for a fuel is available from local military staged performance’’ under normal stocks—usually military installa- conditions is 50 nautical miles. It tions—or when fuel is available from should be noted that staged perform- commercial into-plane contract loca- ances are seldom authorized since the recruiting potential is reduced at such tions, the U.S. Government will pay all events. fuel costs. If military contract fuel is (3) The type and number of static not available at the show site, the and/or flyover aircraft which may be sponsor will be required to pay all assigned is entirely dependent upon the costs above the contract price and that Military Services’ capability to provide price charged by the local supplier. such resources at the time of your However, the sponsor may choose to event. This capability is affected by transport military contract fuel from a operational commitments and sponsors military base or a commercial airport are advised that confirmation of static/ having a U.S. Government into-plane flyover aircraft cannot be made by the contract. In this case, his cost would be appropriate Service more than 15–30 only the transporting and handling of days before your event. this fuel to the show site. (4) The U.S. Army Silver Eagles are (5) The Department of Defense no normally restricted to performances at longer requires the sponsor to provide airports. Other open land areas may be the Department with a public liability operationally suitable but require the and property damage insurance policy. prior approval of the team commander This should in no way deter the spon- in each case. sor from obtaining such liability and (5) Only one flight demonstration property damage insurance he feels is team and a parachute demonstration necessary for his own protection. Due team may be authorized for any one to the costs that could accrue to the event. Military aircraft demonstra- sponsor in case of cancellations be- tions may not be authorized for events cause of inclement weather, the spon- on the days a flight team is participat- sor may wish to consider rain insur- ing. A flyover is not authorized when a ance to protect his investment. Pre- flight team is participating unless it vious sponsors have advised us that can be provided by a locally-based Na- such insurance is available from most tional Guard or Reserve component. commercial companies. (6) Participation by the U.S. Navy (i) Other information. (1) Flight and/or Blue Angels and the U.S. Air Force parachute team demonstrations are re- Thunderbirds is normally limited to stricted to appropriate events at air- two consecutive years in any one ports, over open bodies of water, or event. This usually involves one ap- over suitable open areas of land. For pearance by each of the two flight the U.S. Air Force Thunderbirds or teams. This provision may be waived U.S. Navy Blue Angels to operate from when other appropriate requests have
148
VerDate 25
not been received, when the team is craft and parachutists have been au- performing in the same geographical thorized. area and has open dates or when the (11) Exception to the policies con- event is national or international in tained herein will only be considered nature and participation would be in by OASD(PA) on events of national or the best interests of Department of De- international significance. fense. Participation in an event is nor- (12) Department of Defense hosts a mally limited to two days unless a scheduling conference in mid-December third day can be included without pre- each year to prepare U.S. Air Force empting other requests. Thunderbirds, U.S. Navy Blue Angels, (7) Sponsors are required to obtain a U.S. Army Golden Knights and U.S. Federal Aviation Agency (FAA) waiver Army Silver Eagles participation for any demonstration by military air- schedules for the ensuing year. All re- craft and/or parachutists in the public quests for such demonstrations from domain. The final authorization for sponsors should reach OASD(PA) prior such Armed Forces participation to the middle of November each year to hinges upon the sponsor securing this be considered at this conference. In waiver far enough in advance to permit order to accommodate many requests adequate planning (normally not later Department of Defense receives for than 60 days prior to the event). Fur- other parachuting demonstrations, air- ther guidance on the details of obtain- craft demonstrations, static aircraft ing this waiver will be contained in the displays, and flyovers, each request team support packet or FAA. FAA reg- must be received by OASD(PA) a mini- ulations require that spectators be con- mum of 30 days in advance of the event fined 1500 feet from a flight or aircraft and preferably 60 days in advance. demonstration and 250 feet from a (13) If there are any points that a parachute demonstration. member of the public might wish to (i) In some cases, parachute dem- have clarified, contact Chief, Aerial onstrations require that the sponsor Events Branch, OASD(PA), Room arrange for appropriate transportation 1E790, The Pentagon, Washington, DC for the team and equipment from its 20301. Telephone: AC (202) 695–6795 or home station to the event and return. 695–9900. (ii) Mass parachute jumps, drops of equipment, assault aircraft demonstra- § 705.33 Participation by Armed tions, or tactical helicopter troop land- Forces bands, choral groups, and ings under simulated tactical condi- troops in the public domain. tions, will be limited to military in- (a) Military musical participation in stallations. These activities, except public events which otherwise meet the those scheduled as part of regular criteria outlined herein will be limited training programs, are not authorized to patriotic programs as opposed to for public events in the civil domain. pure entertainment and will not dupli- (8) When civilian air racing is in- cate a performance within the capabil- volved in an event where Armed Forces ity of a civilian group. For example, participation has also been scheduled, music to accompany the presentation prize monies must come from sources of the national colors, or a perform- other than admission charges. ance of military or patriotic music by (9) Flight team, parachute and air- a military band, drum and bugle corps craft demonstrations also require that or choral group may be authorized; the sponsor provide: (i) Recent aerial background, dinner, dance or other so- photograph of the site; (ii) an ambu- cial music is considered ‘‘entertain- lance and doctor at the site; and (iii) ment.’’ Guards for the Armed Forces aircraft (b) Requests received for military during their entire stay. The aerial musical participation in appropriate photograph should be recent, taken events in the civilian domain must in- vertically from at least 5,000 feet. clude an indication from the sponsor (10) Maximum advantage of Armed that there is no conflict with the local Forces recruiting will be taken at ap- civilian musicians concerning the ap- propriate events in the public domain pearance of Navy musicians. A state- where demonstrations by military air- ment to this effect from the cognizant
149
VerDate 25
local musicians’ union must be ob- ized for a parade in the civilian do- tained by the sponsor and attached to main. This guidance intended to assure his request. widest possible participation in public (c) Armed Forces musical units may events of local interest (particularly on be authorized to provide certain speci- national holidays) does not apply to fied musical programs in the public do- national convention of veterans’ main. The performance must not place groups or other events having national military musicians in competition significance. with professional civilian musicians. (2) All Armed Forces participation in Background, dinner, dance or other so- international and national events, and cial music cannot be authorized. The in the Washington, DC area, must be specified programs which may be au- authorized by the Assistant Secretary thorized usually include a short open- of Defense (Public Affairs). ing or closing patriotic presentation. (3) Requests for Armed Forces musi- Musical selections normally consist of cal or troop units when no military in- a medley of military or patriotic songs, stallation is accessible, or for the honors to the President or Vice Presi- Washington, DC-based ceremonial dent (if he is there), or music to accom- bands or troop units (when the event is pany the presentation of colors by a outside the Washington, DC area), Color Detail. should be addressed to the parent Serv- (1) Armed Forces musical units may ice of the unit: be authorized to participate in official (I) U.S. ARMY government, military and civic func- tions. Chief of Public Information, Department of (i) Official government functions in- the Army, Washington, DC 20310. clude those in which senior officials of (II) U.S. NAVY the Federal government are involved in the performance of their official duties. Chief of Information, Code OI–321, Depart- ment of the Navy, Washington, DC 20350. (ii) Official military functions in- clude social activities held on military (III) U.S. AIR FORCE installations (or off when the Military Director of Information, Secretary of the Air Service certifies that suitable facilities Force, Community Relations Division, are not available on post) which are Washington, DC 20330. sponsored by the Military Services, have as their principal purpose the pro- (IV) U.S. MARINE CORPS motion of esprit de corps, and are con- Commandant of the Marine Corps, Code AG, ducted primarily for active duty per- Headquarters, U.S. Marine Corps, Washing- sonnel and their guests. ton, DC 20380. (iii) Official civic functions include (4) Armed Forces units may not be such State, county or municipal events authorized to participate when: as inaugurals, dedication of public (i) The event directly or indirectly buildings and projects, the convening endorses or selectively benefits or fa- of legislative bodies, and ceremonies vors (or appears to do so) any private for officially invited government visi- individual, commercial venture, sect, tors. fraternal organization, political group, (2) Armed Forces musical units may or if it is associated with solicitation also be authorized to provide patriotic of votes in a political election. and military programs at national con- (ii) Admission, seating and other ac- ventions and meetings of nationally- commodations or facilities are re- recognized civic, patriotic and veterans stricted in any manner with regard to organizations. race, creed, color or national origin. (d) Bands, drill teams and other units (iii) The sponsoring organization or can normally participate at no cost to group excludes any person from its the sponsor if the event is within the membership or practices any form of installation’s immediate community discrimination in its functions, based relations area (approximately 100-mile on race, creed, color or national origin. radius). (iv) An admission charge is levied on (1) Normally, not more than one band the public primarily to see participa- or other musical unit will be author- tion by an Armed Forces unit.
150
VerDate 25
(v) There is fund-raising of any type Commandants, or other cognizant au- connected with the event, unless all thority. profits are to be donated to a charity (ii) Casual visits are visits to ships or which is one of the consolidated pro- stations by individuals or specific grams recognized by the Federal Serv- groups, as differentiated from the gen- ices Fund-Raising Program. These are eral public. Details and procedures con- the United Givers Fund Community cerning these visits are a matter of Chest, National Health Agencies (as a command discretion. group), the International Service Agen- (iii) Tours are occasions when a ship cies, and the American Red Cross or station is host to a specific group on (when not included in a consolidated a scheduled date. Some of the larger campaign). The Military Services’ Wel- shore commands also regularly sched- fare Societies (Army Emergency Re- ule one or more sightseeing type tours lief, Navy Relief and Air Force Aid So- daily during seasons when many vaca- ciety) are also included. tioners ask to visit the command. (5) Sponsors of an event must agree (2) General rules. Prior approval for to reimburse the Military Services con- general visiting or Open House at any cerned for transportation and per diem time other than civic-sponsored public when participation is authorized at no observances and official ceremonies for additional cost to the government. Armed Forces Day, memorial Day, (6) Participation by Armed Forces Independence Day, and Veterans Day, musical units in other areas is within and for observances in overseas areas the authority of local military com- of similar significant holidays, will be manders, and requests for participation requested as follows: Fleet units visit- should be made directly to those local ing U.S. ports, from Senior Officer military installations. All requests should be submitted no earlier than 60 present Afloat; fleet units visiting for- days and preferably no later than 45 eign ports, from commander ordering days prior to the event. the visit; shore stations and district vessels in the United States, from Dis- § 705.34 Other special events. trict Commandants; and overseas shore stations, from the naval area com- (a) Ship visits. Requests for visits gen- erally originate with civic groups de- mander. siring Navy participation in local (c) Official functions. (1) Navy units events. Often, members of Congress en- may be authorized by local command- dorse these requests, advising the Navy ing officers to participate in official of their interest in a particular event. government military and civic func- Because of the marked increase in re- tions, except in the Washington DC quests for ship visits, and in order to area where OASD(PA) retains author- give equal consideration to all re- ity. quests, the Chief of Information has ar- (2) Official government functions in- ranged for quarterly meetings of rep- clude those in which senior officials of resentatives from CHINFO, Com- the federal government are involved in mander, Navy Recruiting Command, the performance of their official duties. Chief of Naval Operations and Chief of (3) Official military functions include Legislative Affairs. Based on the im- social activities held on military in- portance of the event (nationally, re- stallations (or off, when it is certified gionally, or locally) location, and pro- that suitable facilities are not avail- spective audience, recommendations able on base), which are sponsored by are consolidated and forwarded to the the Navy, have as their principal pur- fleet commanders prior to their quar- pose the promotion of esprit de corps, terly scheduling conferences. and are conducted primarily for active (b) Visits to Naval activities—(1) Types duty personnel and their guests. of visits. (i) General visits or Open (4) Official civic functions include House are occasions when a ship or sta- such state, county or municipal events tion acts as host to the general public. as inaugurals, dedications of public These visits will be conducted in ac- buildings and projects, and convening cordance with instructions issued by of legislative bodies and ceremonies for Fleet and Force Commanders, District officially invited government visitors.
151
VerDate 25
(5) Overseas, similar functions at- quest Form should be completed. This tended by comparable host-country of- form is used to evaluate the request, ficials in their official capacities might determine appropriateness of the event also be considered appropriate for Navy and compliance with Department of participation. Defense policies, and eliminate re- (d) A parade which is sponsored by peated correspondence. The request the community as a whole (rather than form should be returned to the office or by a single commercial venture) and military command from which it was held on a Sunday or holiday or at a received unless another address is indi- time when shops are closed for business cated. may be a public event for which par- (b) Basic criteria governing Armed ticipation could properly be author- Forces participation in public events ized; representation by individual com- have been developed by the Depart- mercial ventures in such parades need ment of Defense to ensure compliance not be a bar to Navy participation as with public law, to assure equitable long as the emphasis is planned and distribution of resources to as many placed on the civic rather than com- appropriate events as possible, and to mercial aspects. Such participation avoid excessive disruption of primary will be at no additional cost to the gov- training and operational missions of ernment. the Military Services. the following (e) Fund-raising events. (1) Navy sup- general rules and information are in- port of fund-raising events must be cluded as an aid to you in understand- limited to recognized, joint or other ing Department of Defense policies and authorized campaigns. Navy support of in planning programs of mutual benefit fund-raising events or projects for a to the Armed Forces and your commu- single cause, even though the cause is nity. a member of one of the federated, joint (1) When evaluating requests for or authorized campaigns, or donates in Armed Forces participation in public part to one of several of the recognized events, the interests of the Department campaigns, is not authorized by De- of Defense and the public at large, partment of Defense. operational requirements of the Mili- (2) Navy support for a single-cause tary services, and availability of re- fund-raising event may be authorized if sources are prime considerations. Com- the event is: mitment of resources to specific events (i) In support of Navy recruiting ob- must be balanced with the above fac- jectives; tors and with requests for similar par- (ii) Supported by a letter indicating ticipation received from other sources. the local United Way representative (2) Department of Defense participa- has no objection; and tion and cooperation must not directly (iii) Approved by the local Navy or indirectly: Commander as a single-cause charity (i) Endorse or selectively benefit or which has broad local benefit. favor or appear to endorse or selec- [41 FR 29101, July 15, 1976, as amended at 44 tively benefit or favor any private indi- FR 6391, Feb. 1, 1979] vidual, group, corporation (whether for profit or nonprofit), sect, quasi-reli- § 705.35 Armed Forces participation in gious or ideological movement, frater- events in the public domain. nal organization, political organiza- (a) Requests for bands, troops, units, tion, or commercial venture. teams, exhibits and other Armed (ii) Be associated with the solicita- Forces participation should be ad- tion of votes in a political election. dressed to the nearest military instal- Sites such as commercial theaters or lation. Local commanders have re- department stores, churches or frater- sources which they can commit to ap- nal halls; and events such as propriate events if mission require- testimonials to private individuals or ments permit. If no military installa- sectarian religious services, are gen- tion is accessible, or if resources re- erally inappropriate for Armed Forces quested are not available locally or re- participation. quire approval by higher authorities, a (3) Participation by the Armed standard Department of Defense Re- Forces in any event or activity may be
152
VerDate 25
authorized only if admission, seating (8) Armed Forces participation in and all other accommodations and fa- professional sports events and post-sea- cilities are available to all without re- son bowl games will normally be au- gard to race, creed, color or national thorized at no additional cost to the origin, and only if the sponsoring orga- government, will emphasize joint Serv- nization does not exclude any form of ice activity and must support recruit- discrimination based on race, creed, ing programs. Participation in beauty color or national origin. This does not contests, fashion shows, pageants, bar participation in events sponsored Christmas parades, and motion picture by nationally-recognized veteran’s or- premieres is not authorized since mili- ganizations when the program is ori- tary support would violate policy and ented toward the veterans’ interests, appropriateness. nor does it bar participation in non- public school events when the program § 705.36 Government transportation of is directed toward education or recruit- civilians for public affairs purposes. ing. (a) General policy. (1) Regulations on (i) No admission charge may be lev- transportation of civilians vary accord- ied on the public solely to see an ing to whether: Armed Forces demonstration, unit or (i) The civilians are news media rep- exhibit. When admission is charged, resentatives or not. the Armed Forces activity must not be (ii) The travel is local or nonlocal the sole or primary attraction. (see paragraph (b) of this section). (4) Armed Forces participation is au- (iii) The purpose of the travel is to thorized in a fund-raising event only get to a desired destination or is to ob- when the sponsor certifies that all net serve the Navy at first hand. profits in excess of actual operating (2) Authority for embarkation of in- costs will be donated to one of the con- dividuals in naval vessels and military solidated programs recognized by the aircraft is vested in the Chief of Naval Federal Services Fund-Raising pro- Operations by § 700.710 of this chapter. gram. These include such agencies as Nothing in this part shall be construed the United Givers Fund, Community as limiting his authority in this re- Chests, National Health Agencies (as a gard. group), International Service Agencies (3) The following policy has been es- and the military aid societies. tablished by DOD for providing all (5) When Armed Forces participation types of Navy transportation to non- in an event is in the mutual interest of Navy civilians. the Department of Defense and the (i) Military transport facilities shall sponsor of the event, participation will not be placed in a position of competi- be authorized at no additional cost to tion with U.S. commercial carriers. the government. Additional costs to (A) When embarkation of a newsman the government—travel and transpor- is necessary for him to obtain news tation of military personnel, meals and material about a ship, aircraft, cargo quarters or standard per diem allow- or embarked personnel, or when he is ance, etc.—will be borne by the spon- invited to report on a matter of special sor. interest to the Navy, it is not consid- (6) Department of Defense policy pro- ered that the transportation furnished hibits payment by the Armed Forces him is in competition with commercial for rental of exhibit space, connection transport. of electricity, or utility or janitorial (B) An exception is also made for costs. short trips between an airport (or other (7) The duration of participation by transportation center) and the com- military units in any one event is lim- mand. Cars and buses within the re- ited in the interests of proper utiliza- sources of the command may be used tion and equitable distribution of for meeting guests or taking them to Armed Forces manpower and resources. make their travel connections. While an exhibit might be scheduled (ii) When authorization is requested for the duration of an event, a unit for travel which is of interest to or will such as a military band is limited to affect more than one command or three days. Service, the approving authority will
153
VerDate 25
coordinate the request with all other (i) Public interest in the public af- interested commands, Services and fairs purpose involved is confined pri- Agencies. marily to the vicinity of that com- (iii) Travel in connection with any mand. public affairs program arranged by the (ii) The travel is being provided for Navy jointly with another Federal De- the benefit of local media and meets a partment or Agency or a foreign gov- naval public affairs objective. ernment will be authorized only by the (iii) Scheduled commercial air trans- Assistant Secretary of Defense (Public portation is not readily available. Affairs, or those to whom he has dele- (iv) The aircraft to be used is a heli- gated this authority. Navy commands copter, or multiengine dual piloted air- desiring authorization of such travel craft, and is within the resources of the will forward the request to the Chief of host command on a not-to-interfere Information. basis. This provision does not apply to (iv) If a request for travel for orientation flights. nonlocal public affairs purposes is dis- (3) Nonlocal travel. (i) Requests for approved, sufficient reasons should be nonlocal travel will be submitted to provided so that the action is clearly the Chief of Information, who will for- understood by the individual or group ward them with his recommendations concerned. to the Chief of Naval Operations and/or (b) Definition of local v. nonlocal trav- the Assistant Secretary of Defense el. (1) Local travel is travel within the (Public Affairs), as appropriate. immediate vicinity of the command (ii) When the proposed travel is for concerned in connection with a public news coverage of a major emergency affairs program of local interest only. nature and the coverage will be im- (For air travel within the continental paired or delayed, to the serious det- U.S., about 150 miles or less is gen- riment of the interests of the Depart- erally considered local.) ment of Defense, if military transpor- (2) Nonlocal travel is that conducted tation is not provided, requests for in connection with a public affairs pro- such travel will be submitted to the gram affecting more than one Service, Chief of Information, who will forward geographic area or major command, the request—if approved—to the Assist- usually of primary concern to higher ant Secretary of Defense (Public Af- authority. fairs). The most expeditious means (in- (c) Transportation of news media rep- cluding telephone) will be used by com- resentatives. (1) This section applies to mands requesting such emergency media representatives who are em- travel. Justification will include both barked for the purpose of news gather- the public affairs purpose and the ne- ing or of traveling to an area in order cessity for military carriers. to cover a news event. It does not apply (4) Travel between the U.S. and over- to: seas area. (i) Correspondents when members of (i) The Chief of Naval Operations groups embarked as regular cruise may authorize military transportation guests of the Navy. for correspondents in unusual cir- (ii) Casual trips by correspondents to cumstances, upon recommendations of ships in port or to shore stations in the Chief of Information and the De- CONUS. Such visits may be authorized fense Department. by officers in command or higher au- (ii) Requests for government trans- thority in accordance with instructions portation to cover specific assignments promulgated by the Chief of Naval Op- overseas should be made at least three erations. Written orders are not re- weeks prior to the date required and quired. should be addressed to the Assistant (2) Local travel. Commanding officers Secretary of Defense (Public Affairs) at all levels are authorized (under De- via the Chief of Information or Unified fense Department policy) to approve Commander, as appropriate. The re- local travel for public affairs purposes quests should include: within the scope of the mission and re- (A) A statement that the correspond- sponsibilities of their command, if: ent is a full-time employee, or has a
154
VerDate 25
specific assignment, and that the trip transportation policy of the Chief of is for the purpose of news gathering. Naval Operations, whose approval of (B) Appropriate date of entry into such embarkation is required. area, port of entry, method of travel, (iv) Requests for such travel will be proposed duration of visit and travel submitted to the Chief of Information, termination date. who will coordinate with the Chief of (C) Assurance that the correspondent Naval Operations and/or the Assistant will observe currency control regula- Secretary of Defense (Public Affairs), tions, and sponsoring agency will guar- as appropriate. antee financial obligations incurred. (8) Point to point transportation (5) Embarkation of male correspond- within the continental United States ents between ports within CONUS. in naval aircraft other than those oper- (i) Male correspondents may be em- ated by the Military Airlift Command. barked in naval ships for passage be- (i) SECNAVINST 4630.2A contains tween ports within the area of a single guidance for travel in military aircraft Fleet command for the purpose of news other than those operated by the Mili- gathering at the discretion of the Sea tary Airlift Command. Frontier Commander, Commandants of (ii) Naval activities desiring to ar- the Naval Districts, the Chief of naval range such transportation will address Air Training, Fleet, Force and Type requests via the chain of command to commanders and flag officers afloat the operational command of the lowest who have been delegated authority to echelon which has been delegated au- arrange directly with appropriate thority to approve such requests. Fleet, Force and Type commanders for (iii) Upon approval of such a request, embarkation of civilians on a local the naval activity sponsoring the cor- cruise basis. respondent shall: (ii) Invitational travel orders may be (A) Prepare travel orders. issued. (B) Ensure that any waiver forms, as (6) Embarkation of female cor- may be required by governing direc- respondents in naval vessels. tives, are executed. (i) Privileges equal to those given (9) Embarkation of news media rep- male correspondents will be accorded resentatives of foreign citizenship: female correspondents whenever prac- (i) Requests from foreign news media ticable. representatives to cruise with units of (ii) Female correspondents may not the U.S. Navy are usually made to the be embarked overnight in a naval ship nearest U.S. military installation without prior approval of the appro- known to the correspondent, and are priate Fleet Commander-in-Chief. This often not made in the proper chain of authority may be delegated to the command to the Fleet Commander un- numbered Fleet Commanders. less authorized to effect arrangements (7) Travel in ships of the Military for an underway cruise. Sealift Command. Correspondents may (A) if the request is received by a be carried in ships of the Military Sea- command which is not a subordinate of lift Command on either a space-re- the Fleet Commander concerned, it quired or space-available basis when will be forwarded to the U.S. Naval At- travel is in the best interests of the tache assigned to the foreign news- Navy or the Department of Defense. man’s country. The Attache will then (i) Space-available travel will be used forward the request to the appropriate when practicable. A nominal charge is Fleet Commander, with his rec- made by the Military Sealift Command ommendations and the result of a brief and must be borne by the correspond- background check on the newsman and ents. his employer. (ii) Space-required travel may be au- (B) If the request is received by a thorized when sufficiently in the inter- subordinate of the appropriate Fleet est of the Navy, and the charge may be Commander, it may be forwarded di- borne by the Navy. rectly to the latter, but the U.S. Naval (iii) In either case, determination of Attache in the newsman’s country will Navy interests will be made by the be given the opportunity to comment Chief of Information, guided by the on the proposed embarkation.
155
VerDate 25
(ii) Naval commands should not in- (e) Special programs. (1) Cruises are troduce an embarked third-party (i.e., discussed in Chapter 6, section 0604, a foreign media representative) into a para. 1 of the Navy Public Affairs Reg- foreign country other than his own ulations. without first obtaining appropriate (2) Embarkation of news media rep- clearance from the country to be vis- resentatives, especially on operations ited. Approval for entry should be for- and exercises, is discussed in Chapter 4, warded via appropriate command chan- section 0405, paragraph 4 of the Navy nels to the cognizant U.S. Naval Atta- Public Affairs Regulations. che. (3) Other programs subject to special (10) Security considerations. requirements or which have had excep- (i) No media representative known to tions authorized for them include: be affiliated with a group advocating (i) Naval Air Training Command Ci- the overthrow of the U.S. government vilian Orientation Cruise Program, will be permitted aboard naval ships or conducted by the Chief of Naval Air stations. Training. (ii) If security review is directed, the (ii) Joint Civilian Orientation Con- reason will be made clear to the cor- ference, conducted by the Assistant respondent prior to embarkation. News Secretary of Defense (Public Affairs). media people refusing to agree to ob- (iii) Orientation flights in govern- serve security regulations may have ment aircraft, conducted in accordance their privileges suspended. Failure to with OPNAVINST 37107H. observe security regulations will be re- (iv) Space-available air transpor- ported to CHINFO and interested com- tation may be provided Navy League mands. members if they are invited to accom- (d) Transportation of other civilians. (1) pany a flag officer attending a Navy Although groups normally provide League convention or regional meeting their own transportation to Navy com- and if the trip is economically justifi- mands, Navy transportation may be able, based on military travel consider- authorized when: ations and not community relations or (i) Commercial transport is not avail- public affairs reasons. Approval in each able. instance will be obtained in advance (ii) A professional group visit has from the Chief of Naval Operations. been solicited by the Navy, such as par- (v) Air transportation for the Naval ticipants in the Naval Academy Infor- Sea Cadet Corps of the Navy League. mation Program (‘‘Blue and Gold’’) or (A) Flights must be in Navy multien- educators invited to an Aerospace Edu- gine, transport type craft. cation Workshop. (B) Point-to-point flights on a space- (2) Requests for nonlocal transpor- required basis are governed by an an- tation under the above circumstances nual quota set by the Chief of Naval will be made to the Chief of Naval Op- Operations. Space-available transpor- erations. tation is authorized and will not be (3) Carrier-on-board-delivery (COD) charged against this quota if it will not flights and helicopters flights to ships result in delays of takeoffs or a change are considered local transportation. in the itinerary planned for the pri- (4) When units or areas of a Unified mary mission. Command are involved in the public af- (C) Flights must not interfere with fairs program in connection with which operational commitments or training travel authorization is requested by a or results in additional expense to the Navy command which is not a compo- government. nent of the Unified Command con- (D) This transportation is not avail- cerned, coordination will be effected by able to other youth programs, includ- the host command, through command ing others sponsored by the Navy channels, via the Chief of Information, League. to the Assistant Secretary of Defense (f) Other instructions on transportation (Public Affairs), who—as appropriate— of non-Navy civilians. Details on policy, will consult with the Unified Com- procedures, and the transportation of mander concerned. certain categories of people will be
156
VerDate 25
found in OPNAVINST 5720.2G and DOD achievements which, while not meeting Directive 4515.13. the criteria for public service awards [41 FR 29101, July 15, 1976, as amended at 44 presented by the Secretary of the FR 6391, Feb. 1, 1979] Navy, are of such Navy-wide signifi- cance as to merit recognition at the § 705.37 Public affairs and public serv- Department level. Examples of these ice awards. achievements might be a particularly (a) General. (1) A number of public well done feature article about the service awards are presented by the De- Navy in a nationally read newspaper or partment of Defense and the Navy to an outstanding contribution to a lo- business and civic leaders, scientists cally sponsored event, which ulti- and other nongovernment civilians. mately gave national or regional rec- Other awards—military and civilian— ognition to the Navy. are presented to members of the naval (iii) The achievement for which the establishment. certificate is given shall meet the fol- (2) These awards are of public affairs lowing criteria: interest in the locale where they are (A) Contribute to accomplishment of presented and also in the home towns the public information objectives of of those who receive them. the Navy. (b) Department of Defense awards. (1) (B) Be the result of a single outstand- The Department of Defense Medal for ing project or program. Distinguished Public Service is pre- (C) Have been accomplished within sented to individuals. The Department one year of the date of the official let- of Defense Meritorious Award honors ter of nomination. organizations. (iv) Nominations will be submitted (2) Details, including nominating pro- through appropriate administrative cedures, are given in SECNAVINST channels to the Chief of Information, 5061.12. and will include a description of the (c) Secretary of the Navy awards. (1) service rendered, a statement of its rel- The following awards are presented by evance to the accomplishment of the the Secretary of the Navy: The Navy public affairs objectives of the Navy Distinguished Public Service Award and a draft of the recommended cita- and Navy Meritorious Public Service tion. To avoid possible embarrassment, Citation to individuals; the Navy Cer- nominations shall be marked ‘‘For Offi- tificate of Commendation to members cial Use Only’’ and safeguarded until of special committees and groups; and final action has been taken. the Navy Certificate of Merit to orga- nizations and associations. (2) CHINFO Merit Awards. (i) These (2) Details are given in SECNAVINST awards, or certificates, are presented 5061.12. quarterly to Navy publications and (3) Nominations for awards to mili- broadcasts considered to be outstand- tary personnel are considered by the ing or to have shown improvement in Board of Decorations and Medals, in meeting professional standards of jour- accordance with SECNAVINST nalism. 1650.24A. (ii) Publications and broadcasts eligi- (4) Nominations for honorary awards ble are those which inform the reader to Department of the Navy civilian em- concerning aspects of service life or re- ployees are considered by the Distin- lated matters which contribute to the guished Civilian Service Awards Panel. well-being of naval personnel, their de- (See Civilian Manpower Management pendents, and civilian employees of the Instruction 451.) Navy. Civilian enterprise periodicals (d) Chief of Information awards—(1) are included if produced for the exclu- Certificate of Public Relations Achieve- sive use of a naval installation. ment. (i) This certificate is signed by (iii) Nominations are made in two the Chief of Information. It honors in- ways: dividuals who are not Navy employees, (A) Selection during regular review corporations, or associations. periodicals and broadast air-checks re- (ii) It was established to fill the need ceived by the Internal Relations Activ- for a civilian award for public relations ity.
157
VerDate 25
(B) Nominations from the field. Such nical progess, operational competence, nominations are informal and may be literary achievement, etc. Nominations made by the officer-in-charge, publica- should be forwarded directly to Board tions editor, broadcast station man- of Awards, Navy League of the United ager, or public affairs officer to the States, 818 18th St., NW., Washington, chief of Information, Navy Depart- DC 20006. ment, Washington, DC 20350 (ATTN: (v) Nonofficial awards to outstanding OP–0071). Navy students or training units. (3) Other awards pertaining to public (A) Various civilian organizations affairs/internal relations. (i) Silver Anvil and private individuals have estab- award is given by the Public Relations lished awards to be presented to out- Society of America for outstanding standing training units or naval stu- public relations programs carried out dents. during the preceding year. Entry (B) Requests to establish an award blanks and details may be obtained by for students in the Naval Air Training writing directly to Public Relations program should be forwarded to the Society of America, 845 Third Ave., Chief of Naval Air Training. New York, NY 10022. All Navy entries (C) Requests to establish an award will be forwarded via the Chief of Infor- which will involve more than one mation. school (other than the Naval Air Train- (ii) Freedom Foundation Awards of ing Program) will be forwarded to the cash and medals are annually given to Chief of Naval Personnel. service personnel for letters on patri- (D) All other cases may be decided by otic themes. Details are carried in ship the Navy authority at the school con- and station publications, or may be ob- cerned. tained by writing to Freedom Founda- (E) Directives in the 5061, 1650 and tions, Valley Forge, PA 19481. 3590 series issued by pertinent authori- (iii) Thomas Jefferson Awards are the ties may provide further guidance in prizes in an annual interservice com- individual cases. petition sponsored by civilian media (vi) Awards established by a com- through the Department of Defense’s mand to honor non-Navy civilians. Office of Information for the Armed (A) Examples of such awards are Forces. The contest is open to all ‘‘Good Neighbor’’ or ‘‘Honorary Crew Armed Forces media—broadcast and Member’’ certificates. print. Details can be obtained by writ- (B) Established to honor persons who ing to Office of Information, Depart- have been helpful to the command, ment of the Navy, Washington, DC they are a valuable community rela- 20350. tions program. They should not be (iv) Navy League Awards. Several an- awarded to persons or organizations nual awards are presented to naval per- with which the command is associated sonnel and civilians who have made a in a commercial or governmental busi- notable contribution to the importance ness capacity. of seapower. The awards are for inspi- [41 FR 29101, July 15, 1976, as amended at 44 rational leadership, scientific and tech- FR 6391, Feb. 1, 1979]
158
VerDate 25
PART 706—CERTIFICATIONS AND shown in combination with the naviga- EXEMPTIONS UNDER THE INTER- tional lights. NATIONAL REGULATIONS FOR (c) During peacetime naval maneu- PREVENTING COLLISIONS AT SEA, vers, naval ships, alone or in company, 1972 may also dispense with showing any lights, though efforts will be made to display lights on the approach of ship- Sec. ping. 706.1 Purpose of regulations. 706.2 Certifications of the Secretary of the (d) Executive Order 11964 of January Navy under Executive Order 11964 and 33 19, 1977, and 33 U.S.C. 1605 provide that U.S.C. 1605. the requirements of the International 706.3 Exemptions by the Secretary of the Regulations for Preventing Collisions Navy under Executive Order 11964. at Sea, 1972, as to the number, position, AUTHORITY: 33 U.S.C. 1605. range, or arc of visibility of lights or shapes, as well as to the disposition § 706.1 Purpose of regulations. and characteristics of sound-signalling (a) All ships are warned that, when appliances, shall not apply to a vessel U.S. naval vessels are met in inter- of the Navy where the Secretary of the national waters, certain navigational Navy shall find and certify that, by lights and sound-signalling appliances reason of special construction or pur- of some naval vessels may vary from pose, it is not possible for such vessel the requirements of the International to comply fully with the provisions Regulations for Preventing Collisions without interfering with the special at Sea, 1972 (33 U.S.C. foll. section 1602 function of the vessel. (1982)), as to number, position, range, (e) Executive Order 11964 also pro- or arc of visibility of lights, as well as vides that the Secretary of the Navy is to the disposition and characteristics authorized to exempt, in accordance of sound-signalling appliances. Those with Rule 38 of the International Regu- differences are necessitated by reason lations for preventing Collisions at of the special construction or purpose Sea, 1972, any vessel, or class of vessels, of the naval ships. An example is the the keel of which is laid, or which is at aircraft carrier where the two mast- a corresponding stage of construction, head lights are considerably displaced before July 15, 1977, from full compli- from the center or keel line of the ves- ance with the International Regula- sel when viewed from ahead. Certain tions, provided that such vessel, or other naval vessels cannot comply with class of vessels, complies with the re- the horizontal separation requirements quirements of the International Regu- for masthead lights, and the two mast- lations for Preventing Collisions at head lights on even large naval vessels Sea, 1960. will thus appear to be crowded together (f) This part consolidates and codifies when viewed from a distance. Naval certifications and exemptions granted vessels may also have unorthodox navi- by the Secretary of the Navy under Ex- gational light arrangements or charac- teristics when seen either underway or ecutive Order 11964 and 33 U.S.C. 1605. at anchor. It has been determined that, because of their special construction or purpose, (b) Naval vessels may also be ex- pected to display certain other lights. the vessels and classes of vessels listed These lights include, but are not lim- in this part cannot comply fully with ited to, different colored rotating bea- all of the requirements of the Inter- cons, different colored fixed and rotary national Regulations for Preventing wing aircraft landing signal lights, red Collisions at Sea, 1972. aircraft warning lights, and red or blue [42 FR 36434, July 14, 1977, as amended at 42 contour approach lights on replenish- FR 48876, Sept. 26, 1977; 45 FR 43165, June 26, ment-type ships. These lights may be 1980; 52 FR 4770, Feb. 17, 1987]
159
VerDate 25
§ 706.2 Certifications of the Secretary Table OneÐContinued of the Navy under Executive Order Distance in 11964 and 33 U.S.C. 1605. meters of The Secretary of the Navy hereby forward masthead finds and certifies that each vessel list- Vessel Number light below ed in this section is a naval vessel of minimum required special construction or purpose, and height. that, with respect to the position of § 2(a)(i) Annex I the navigational lights listed in this section, it is not possible to comply USS THACH ...... FFG 43 1.6 fully with the requirements of the pro- USS DEWERT ...... FFG 45 1.6 USS RENTZ ...... FFG 46 1.6 visions enumerated in the Inter- USS NICHOLAS ...... FFG 47 1.6 national Regulations for Preventing USS VANDEGRIFT ...... FFG 48 1.6 Collisions at Sea, 1972, without inter- USS ROBERT G. BRADLEY ...... FFG 49 1.6 USS TAYLOR ...... FFG 50 1.6 fering with the special function of the USS GARY ...... FFG 51 1.6 vessel. The Secretary of the Navy fur- USS CARR ...... FFG 52 1.6 ther finds and certifies that the naviga- USS HAWES ...... FFG 53 1.6 USS FORD ...... FFG 54 1.6 tional lights in this section are in the USS ELROD ...... FFG 55 1.6 closest possible compliance with the USS SIMPSON ...... FFG 56 1.6 applicable provisions of the Inter- USS REUBEN JAMES ...... FFG 57 1.6 national Regulations for Preventing USS SAMUEL B. ROBERTS ...... FFG 58 1.6 USS KAUFFMAN ...... FFG 59 1.6 Collisions at Sea, 1972. USS RODNEY M. DAVIS ...... FFG 60 1.6 USS INGRAHAM ...... FFG 61 1.37 Table One USS DUBUQUE ...... LPD 8 4.2 USS DENVER ...... LPD 9 4.4 Distance in USS GUADALCANAL ...... LPH 7 3.0 meters of USS GUAM ...... LPH 9 3.3 forward USS TRIPOLI ...... LPH 10 3.3 masthead light below USS NEW ORLEANS ...... LPH 11 3.3 Vessel Number minimum USS INCHON ...... LPH 12 3.0 required LCAC (class) ...... LCAC 1 1 6.51 height. through § 2(a)(i) LCAC 100 Annex I LCAC (class) ...... LCAC 1 2 7.94 through AALC JEFF(B) ...... ACV 7.21 LCAC 100 USS DOLPHIN ...... AGSS 555 0.8 USS IMPLICIT ...... MSO 455 3.7 USS OLIVER HAZARD PERRY .... FFG 7 1.6 USS CONQUEST ...... MSO 488 3.4 USS MC INERNY ...... FFG 8 1.6 USS GALLANT ...... MSO 489 3.2 USS WADSWORTH ...... FFG 9 1.6 USS DUNCAN ...... FFG 10 1.6 USS PLEDGE ...... MSO 492 3.4 USS CLARK ...... FFG 11 1.6 NR±1 ...... NR 1 2.7 USS GEORGE PHILIP ...... FFG 12 1.6 USS TACOMA ...... PG 92 2.3 USS SAMUEL ELIOT MORISON .. FFG 13 1.6 USS WELCH ...... PG 93 2.3 USS SIDES ...... FFG 14 1.6 USS SEAWOLF ...... SSN 21 4.62 USS ESTOCIN ...... FFG 15 1.6 USS GATO ...... SSN 615 4.20 USS CLIFTON SPRAGUE ...... FFG 16 1.6 USS WHALE ...... SSN 638 2.44 USS JOHN A. MOORE ...... FFG 19 1.6 USS TAUTOG ...... SSN 639 2.44 USS ANTRIM ...... FFG 20 1.6 USS GRAYLING ...... SSN 646 2.44 USS FLATLEY ...... FFG 21 1.6 USS POGY ...... SSN 647 2.40 USS FAHRION ...... FFG 22 1.6 USS ASPRO ...... SSN 648 2.40 USS LEWIS B. PULLER ...... FFG 23 1.6 USS SUNFISH ...... SSN 649 2.40 USS JACK WILLIAMS ...... FFG 24 1.6 USS PARGO ...... SSN 650 2.40 USS COPELAND ...... FFG 25 1.6 USS PUFFER ...... SSN 652 2.40 USS GALLERY ...... FFG 26 1.6 USS SANDLANCE ...... SSN 660 2.40 USS MAHLON S. TISDALE ...... FFG 27 1.6 USS GURNARD ...... SSN 662 1.52 USS BOONE ...... FFG 28 1.6 USS HAMMERHEAD ...... SSN 663 2.40 USS STEPHEN W. GROVES ...... FFG 29 1.6 USS HAWKBILL ...... SSN 666 1.52 USS REID ...... FFG 30 1.6 USS BERGALL ...... SSN 667 2.40 USS STARK ...... FFG 31 1.6 USS SPADEFISH ...... SSN 668 2.40 USS JOHN L. HALL ...... FFG 32 1.6 USS SEAHORSE ...... SSN 669 2.40 USS JARRETT ...... FFG 33 1.6 USS FINBACK ...... SSN 670 2.40 USS AUBREY FITCH ...... FFG 34 1.6 USS NARWHAL ...... SSN 671 2.74 USS UNDERWOOD ...... FFG 36 1.6 USS PINTADO ...... SSN 672 1.52 USS CROMMELIN ...... FFG 37 1.6 USS FLYING FISH ...... SSN 673 2.40 USS CURTS ...... FFG 38 1.6 USS TREPANG ...... SSN 674 2.40 USS DOYLE ...... FFG 39 1.6 USS BLUEFISH ...... SSN 675 2.40 USS HALYBURTON ...... FFG 40 1.6 USS BILLFISH ...... SSN 676 2.40 USS MCCLUSKY ...... FFG 41 1.6 USS DRUM ...... SSN 677 1.52 USS KLAKRING ...... FFG 42 1.6 USS ARCHERFISH ...... SSN 678 2.40
160
VerDate 25
Table OneÐContinued Table OneÐContinued
Distance in Distance in meters of meters of forward forward masthead masthead Vessel Number light below light below minimum Vessel Number minimum required required height. height. § 2(a)(i) § 2(a)(i) Annex I Annex I
USS WILLIAM H BATES ...... SSN 680 2.40 USS MIAMI ...... SSN 755 3.5 USS BATFISH ...... SSN 681 2.40 USS SCRANTON ...... SSN 756 3.5 USS TUNNY ...... SSN 682 2.40 USS ALEXANDRIA ...... SSN 757 3.5 USS PARCHE ...... SSN 683 3.58 USS ASHEVILLE ...... SSN 758 3.5 USS CAVALLA ...... SSN 684 2.40 USS JEFFERSON CITY ...... SSN 759 3.4 USS MENDEL RIVERS ...... SSN 686 2.40 USS ANNAPOLIS ...... SSN 760 3.5 USS RICHARD B RUSSELL ...... SSN 687 2.40 USS SPRINGFIELD ...... SSN 761 3.5 USS LOS ANGELES ...... SSN 688 6.10 USS COLUMBUS ...... SSN 762 3.5 USS PHILADELPHIA ...... SSN 690 6.10 USS SANTA FE ...... SSN 763 3.5 USS MEMPHIS ...... SSN 691 6.10 USS OMAHA ...... SSN 692 6.10 USS BOISE ...... SSN 764 3.5 USS CINCINNATI ...... SSN 693 3.49 USS MONTPELIER ...... SSN 765 3.5 USS GROTON ...... SSN 694 3.45 USS CHARLOTTE ...... SSN 766 3.5 USS BIRMINGHAM ...... SSN 695 3.49 USS HAMPTON ...... SSN 767 3.5 USS NEW YORK CITY ...... SSN 696 3.49 USS HARTFORD ...... SSN 768 3.5 USS INDIANAPOLIS ...... SSN 697 3.49 USS TOLEDO ...... SSN 769 3.5 USS BREMERTON ...... SSN 698 3.49 USS TUCSON ...... SSN 770 3.5 USS JACKSONVILLE ...... SSN 699 3.35 USS COLUMBIA ...... SSN 771 3.5 USS DALLAS ...... SSN 700 3.5 USS GREENEVILLE ...... SSN 772 3.5 USS LA JOLLA ...... SSN 701 3.5 USS CHEYENNE ...... SSN 773 3.5 USS PHOENIX ...... SSN 702 3.5 USS DANIEL WEBSTER ...... SSBN 626 3.58 USS BOSTON ...... SSN 703 3.5 USS STONEWALL JACKSON ...... SSBN 634 3.58 USS BALTIMORE ...... SSN 704 3.5 USS SIMON BOLIVAR ...... SSBN 641 3.60 USS CITY OF CORPUS CHRISTI SSN 705 3.5 USS KAMEHAMEHA ...... SSBN 642 3.58 USS ALBUQUERQUE ...... SSN 706 3.5 USS JAMES K. POLK ...... SSBN 645 3.60 USS PORTSMOUTH ...... SSN 707 3.5 USS MARIANO G VALLEJO ...... SSBN 658 3.60 USS MINNEAPOLIS-ST. PAUL ..... SSN 708 3.5 USS OHIO ...... SSBN 726 3.70 USS HYMAN G. RICKOVER ...... SSN 709 3.5 USS MICHIGAN ...... SSBN 727 3.70 USS AUGUSTA ...... SSN 710 3.5 USS FLORIDA ...... SSBN 728 3.70 USS SAN FRANCISCO ...... SSN 711 3.5 USS GEORGIA ...... SSBN 729 3.70 USS ATLANTA ...... SSN 712 3.5 USS HENRY M. JACKSON ...... SSBN 730 3.70 USS HOUSTON ...... SSN 713 3.5 USS ALABAMA ...... SSBN 731 3.70 USS NORFOLK ...... SSN 714 3.5 USS ALASKA ...... SSBN 732 3.70 USS BUFFALO ...... SSN 715 3.5 USS NEVADA ...... SSBN 733 3.70 USS SALT LAKE CITY ...... SSN 716 3.5 USS TENNESSEE ...... SSBN 734 3.70 USS OLYMPIA ...... SSN 717 3.5 USS PENNSYLVANIA ...... SSBN 735 3.70 USS HONOLULU ...... SSN 718 3.5 USS WEST VIRGINIA ...... SSBN 736 3.70 USS PROVIDENCE ...... SSN 719 3.5 USS PITTSBURGH ...... SSN 720 3.5 USS KENTUCKY ...... SSBN 737 3.70 USS CHICAGO ...... SSN 721 3.5 USS MARYLAND ...... SSBN 738 3.70 USS KEY WEST ...... SSN 722 3.5 USS NEBRASKA ...... SSBN 739 3.70 USS OKLAHOMA CITY ...... SSN 723 3.5 USS RHODE ISLAND ...... SSBN 740 3.70 USS LOUISVILLE ...... SSN 724 3.5 USS MAINE ...... SSBN 741 3.70 USS HELENA ...... SSN 725 3.5 USS WYOMING ...... SSBN 742 3.70 USS NEWPORT NEWS ...... SSN 750 3.5 USS LOUISIANA ...... SSBN 743 3.70 USS SAN JUAN ...... SSN 751 3.5 1 The permanent masthead light is 5.26 meters athwartship USS PASADENA ...... SSN 752 3.5 to port of centerline, 5.49 meters above the main deck. USS ALBANY ...... SSN 753 3.5 2 The temporary masthead light is 3.98 meters athwartship USS TOPEKA ...... SSN 754 3.5 to starboard of centerline, 4.06 meters above the main deck.
161
VerDate 25
162
VerDate 25
163
VerDate 25
164
VerDate 25
165
VerDate 25
166
VerDate 25
167
VerDate 25
Table Four
1. Ships other than aircraft carrier types of two lights, one light port and one light (CV, CVN, LHA, LHD, and LPH) may not si- starboard on the mast or superstructure at multaneously exhibit the masthead lights re- each location in the vertical array. quired by Rule 27(b)(iii) and the lights re- 3. The second masthead light required by quired by Rule 27(b)(i) for vessels restricted Rule 23(a)(ii) and the lights and shapes re- in their ability to maneuver when such si- quired by Rules 24, 27, and 30(d)(i) are not multaneous exhibition will present a hazard displayed by submarines. to their own safe operations. In those in- 4. On mine warfare type ships the mast- stances, the lights required by Rule 27(b)(i) head lights will not always be above and will be exhibited. Ships conducting flight op- erations also may not exhibit the stern light clear of the minesweeping lights, as is re- required by Rule 27(b)(iii). quired by Annex I, Section 2(f). The positions 2. To provide all-round visibility, the lights of the masthead lights with relation to the required by Rules 27 (a) and (b) will consist minesweeping lights are as follows:
Relationship of after Relationship of forward Relationship of after masthead light to Vessel MSO No. masthead light to all masthead light to lower upper minesweeping minesweeping lights minesweeping lights lights
USS IMPLICIT ...... 455 below ...... lower than ...... below USS CONQUEST ...... 488 below ...... lower than ...... below USS GALLANT ...... 489 below ...... lower than ...... below USS PLEDGE ...... 492 below ...... lower than ...... below MSB ...... 15 below ...... ÐÐ ...... ÐÐ MSB ...... 16 do ...... ÐÐ ...... ÐÐ MSB ...... 25 do ...... ÐÐ ...... ÐÐ MSB ...... 28 do ...... ÐÐ ...... ÐÐ MSB ...... 29 do ...... ÐÐ ...... ÐÐ MSB ...... 41 do ...... ÐÐ ...... ÐÐ MSB ...... 51 do ...... ÐÐ ...... ÐÐ MSB ...... 52 do ...... ÐÐ ...... ÐÐ
5. The masthead light required by Rule 23(a)(i) is not located in the forepart of the vessel on the CSP Class and SLWT Class. 6. The arc of visibility of the after masthead light required by Rule 23(a)(ii) and Annex I, section 2(f) may be obstructed from right ahead on certain naval ships as follows: USS KANSAS CITY (AOR 3) ...... 1° 13′ USS SAVANNAH (AOR 4) ...... 1° 13′ USS HOLLAND (AS 32) ...... 3° 46′ USS WABASH (AOR 5) ...... 1° 13′ USS KIDD (DDG 993) ...... 0° 28.8′ USS KALAMAZOO (AOR 6) ...... 1° 13′ USS CALLAGHAN (DDG 994) ...... 0° 28.8′ USS HUNLEY (AS 31) ...... 2° 10′ USS SCOTT (DDG 995) ...... 0° 28.8′ USS CHANDLER (DDG 996) ...... 0° 28.8′
7. On the following ships the arc of visibility of the forward masthead light required by Rule 23(a)(i) may be obstructed through 1.6° arc of visibility at the points 021° and 339° rel- ative to the ship’s head. USS OLIVER HAZARD PERRY ...... FFG 7 USS MCINERNEY ...... FFG 8 USS BOONE ...... FFG 28 USS WADSWORTH ...... FFG 9 USS STEPHEN W. GROVES ...... FFG 29 USS DUNCAN ...... FFG 10 USS REID ...... FFG 30 USS CLARK ...... FFG 11 USS STARK ...... FFG 31 USS GEORGE PHILIP ...... FFG 12 USS JOHN L. HALL ...... FFG 32 USS SAMUEL ELIOT MORISON ...... FFG 13 USS JARRETT ...... FFG 33 USS SIDES ...... FFG 14 USS AUBREY FITCH ...... FFG 34 USS ESTOCIN ...... FFG 15 USS UNDERWOOD ...... FFG 36 USS CLIFTON SPRAGUE ...... FFG 16 USS CROMMELIN ...... FFG 37 USS JOHN A. MOORE ...... FFG 19 USS CURTS ...... FFG 38 USS ANTRIM ...... FFG 20 USS DOYLE ...... FFG 39 USS FLATLEY ...... FFG 21 USS HALYBURTON ...... FFG 40 USS FAHRION ...... FFG 22 USS MCCLUSKY ...... FFG 41 USS LEWIS B. PULLER ...... FFG 23 USS KLAKRING ...... FFG 42 USS JACK WILLIAMS ...... FFG 24 USS THACH ...... FFG 43 USS COPELAND ...... FFG 25 USS DEWERT ...... FFG 45 USS GALLERY ...... FFG 26 USS RENTZ ...... FFG 46 USS MAHLON S. TISDALE ...... FFG 27 USS NICHOLAS ...... FFG 47 USS VANDERGRIFT ...... FFG 48
168
VerDate 25
USS ROBERT G. BRADLEY ...... FFG 49 USS SIMPSON ...... FFG 56 USS TAYLOR ...... FFG 50 USS REUBEN JAMES ...... FFG 57 USS GARY ...... FFG 51 USS SAMUEL B. ROBERTS ...... FFG 58 USS CARR ...... FFG 52 USS KAUFFMAN ...... FFG 59 USS HAWES ...... FFG 53 USS RODNEY M. DAVIS ...... FFG 60 USS FORD ...... FFG 54 USS INGRAHAM ...... FFG 61 USS ELROD ...... FFG 55
8. Sidelights on the following ships do not comply with Annex 1, Section 3(b):
Distance of Distance of sidelights sidelights forward of Vessel Number forward of masthead Vessel Number masthead light in me- light in me- ters ters
USS OLIVER HAZARD PERRY ..... FFG 7 ... 2.75 USS UNDERWOOD ...... FFG 36 2.75 USS MCINERNEY ...... FFG 8 ... 2.75 USS CROMMELIN ...... FFG 37 2.75 USS WADSWORTH ...... FFG 9 ... 2.75 USS CURTS ...... FFG 38 2.75 USS DUNCAN ...... FFG 10 2.75 USS DOYLE ...... FFG 39 2.75 USS CLARK ...... FFG 11 2.75 USS HALYBURTON ...... FFG 40 2.75 USS GEORGE PHILIP ...... FFG 12 2.75 USS MCCLUSKY ...... FFG 41 2.75 USS SAMUEL ELIOT MORISON ... FFG 13 2.75 USS KLAKRING ...... FFG 42 2.75 USS SIDES ...... FFG 14 2.75 USS THACH ...... FFG 43 2.75 USS ESTOCIN ...... FFG 15 2.75 USS DEWERT ...... FFG 45 2.75 USS CLIFTON SPRAGUE ...... FFG 16 2.75 USS RENTZ ...... FFG 46 2.75 USS JOHN A. MOORE ...... FFG 19 2.75 USS NICHOLAS ...... FFG 47 2.75 USS ANTRIM ...... FFG 20 2.75 USS VANDEGRIFT ...... FFG 48 2.75 USS FLATLEY ...... FFG 21 2.75 USS ROBERT G. BRADLEY ...... FFG 49 2.75 USS FAHRION ...... FFG 22 2.69 USS TAYLOR ...... FFG 50 2.75 USS LEWIS B. PULLER ...... FFG 23 2.75 USS GARY ...... FFG 51 2.75 USS JACK WILLIAMS ...... FFG 24 2.75 USS CARR ...... FFG 52 2.75 USS COPELAND ...... FFG 25 2.75 USS HAWES ...... FFG 53 2.75 USS GALLERY ...... FFG 26 2.75 USS FORD ...... FFG 54 2.75 USS MAHLON S. TISDALE ...... FFG 27 2.75 USS ELROD ...... FFG 55 2.75 USS BOONE ...... FFG 28 2.75 USS SIMPSON ...... FFG 56 2.75 USS STEPHEN W. GROVES ...... FFG 29 2.75 USS REUBEN JAMES ...... FFG 57 2.75 USS REID ...... FFG 30 2.75 USS SAMUEL B. ROBERTS ...... FFG 58 2.75 USS STARK ...... FFG 31 2.75 USS KAUFFMAN ...... FFG 59 2.75 USS JOHN L. HALL ...... FFG 32 2.75 USS RODNEY M. DAVIS ...... FFG 60 2.75 USS JARRETT ...... FFG 33 2.69 USS INGRAHAM ...... FFG 61 2.19 USS AUBREY FITCH ...... FFG 34 2.75
9. On LCAC-class amphibious vessels, full compliance with Rules 21(a), 21(b), and 22(b), and Annex I, section 2(a)(i), 72 COLREGS, cannot be obtained. Tables One and Two of section 706.2 provide the dimensions of closest possible compliance of LCAC-class amphibious vessels with the aforementioned rules. The following paragraph details the specific dimensions of closest possible compliance and the basis for certification by the Secretary of the Navy that full compliance with the aforementioned rules is not obtainable. In LCAC-class amphibious vessels, there are permanent and temporary masts. The perma- nent masthead light is located 5.26 meters athwartship to port of centerline 5.49 meters above the hull. The temporary masthead light is located 3.98 meters athwartship to starboard of centerline 4.06 meters above the hull. The temporary masthead light is displayed in lieu of the permanent masthead light only when LCAC-class amphibious vessels are operating with amphibious assault vessels. When operating in this mode, the sidelights are displayed at a height greater than three-quarters of the height of the temporary masthead light. The sidelights are located on top of the port and starboard deckhouses to permit the required un- obstructed arcs of visibility and are 3.28 meters above the hull, resulting in a vertical separa- tion between those lights and the temporary masthead light of 0.78 meters. Because of the minimal vertical separation between the sidelights and the temporary masthead light and the luminous intensity of the temporary light, the sidelights on these vessels may not be dis- tinguishable by the naked eye at the 2-mile range required by Rule 22(b). 10. On the following ships the arc of visibility of the after masthead light required by Rule 23(a)(ii) may be obstructed through 0°48.6′ arc of visibility at the point 349° relative to the ship’s head: USS KIDD (DDG 993) USS CALLAGHAN (DDG 994) USS SCOTT (DDG 995) USS CHANDLER (DDG 996)
169
VerDate 25
11. On USS DOLPHIN (AGSS 555) the masthead light will be visible at a distance of 4.3 nau- tical miles and the sidelights will be visible at a distance of 2 nautical miles. 12. [Reserved] 13. [Reserved] 14. The following harbor tugs are equipped with a hinged mast. When the mast is in the lowered position as during a towing alongside or pushing operation, the two masthead lights required by Rule 24(c), and the all around lights required by Rule 27(b)(i) will not be shown; however, an auxiliary masthead light not meeting with Annex I, section 2(a)(i) height re- quirement will be exhibited.
Distance in meters of Distance in meters of aux. masthead light aux. masthead light Vessel No. below minimum re- Vessel No. below minimum re- quired height. Annex quired height. Annex I, sec. 2(a)(i) I, sec. 2(a)(i)
YTB 752 ...... 3.97 YTB 799 ...... 4.07 YTB 757 ...... 3.40 YTB 801 ...... 3.89 YTB 758 ...... 3.97 YTB 806 ...... 3.58 YTB 769 ...... 3.86 YTB 811 ...... 4.07 YTB 771 ...... 3.89 YTB 812 ...... 4.04 YTB 780 ...... 3.53 YTB 813 ...... 6.15 YTB 781 ...... 3.66 YTB 820 ...... 3.30 YTB 785 ...... 4.47 YTB 826 ...... 3.89 YTB 788 ...... 3.76 YTB 833 ...... 3.68 YTB 789 ...... 3.30 YTB 835 ...... 4.04
15. Task (restricted maneuverability) lights on the following ships do not comply with Annex I, section 3(c).
Horizontal dis- Horizontal dis- tance from the tance from the fore and aft fore and aft Vessel Number centerline of Vessel Number centerline of the vessel in the vessel in the athwart- the athwart- ship direction ship direction
USS ARLEIGH BURKE ...... DDG 51 1.85 meters USS CARNEY ...... DDG 64 1.90 meters USS BARRY ...... DDG 52 1.94 meters USS BENFOLD ...... DDG 65 1.90 meters USS JOHN PAUL JONES ...... DDG 53 1.89 meters USS GONZALES ...... DDG 66 1.90 meters USS CURTIS WILBUR ...... DDG 54 1.90 meters USS COLE ...... DDG 67 1.90 meters USS STOUT ...... DDG 55 1.90 meters USS THE SULLIVANS ...... DDG 68 1.87 meters USS JOHN S. MCCAIN ...... DDG 56 1.88 meters USS MILIUS ...... DDG 69 1.93 meters USS MITSCHER ...... DDG 57 1.93 meters USS HOPPER ...... DDG 70 1.83 meters USS LABOON ...... DDG 58 1.90 meters USS ROSS ...... DDG 71 1.96 meters USS RUSSELL ...... DDG 59 1.91 meters USS MAHAN ...... DDG 72 1.90 meters USS PAUL HAMILTON ...... DDG 60 1.88 meters USS DECATUR ...... DDG 73 1.87 meters USS RAMAGE ...... DDG 61 1.91 meters USS MCFAUL ...... DDG 74 1.91 meters USS FITZGERALD ...... DDG 62 1.90 meters USS DONALD COOK ...... DDG 75 1.90 meters USS STETHEM ...... DDG 63 1.91 meters
16. On the following ships, the arc of visibility of the forward masthead light, required by rule 21(a), may be obstructed at the following angles relative to ship’s heading:
Obstruction angle Obstruction angle Vessel Number relative ship's head- Vessel Number relative ship's head- ings ings
USS ARLEIGH BURKE ..... DDG 51 100.00° thru 112.50° USS CARNEY ...... DDG 64 105.06° thru 112.50° USS BARRY ...... DDG 52 101.16° thru 112.50° USS BENFOLD ...... DDG 65 101.86° thru 112.50° USS JOHN PAUL JONES DDG 53 103.29° thru 112.50° USS GONZALES ...... DDG 66 101.69° thru 112.50° USS CURTIS WILBUR ..... DDG 54 102.61° thru 112.50° USS COLE ...... DDG 67 101.83° thru 112.50° USS STOUT ...... DDG 55 102.00° thru 112.50° USS THE SULLIVANS ...... DDG 68 103.06° thru 112.50° USS JOHN S. MCCAIN .... DDG 56 102.53° thru 112.50° USS MILIUS ...... DDG 69 102.30° thru 112.50° USS MITSCHER ...... DDG 57 102.27° thru 112.50° USS HOPPER ...... DDG 70 102.25° thru 112.50° USS LABOON ...... DDG 58 102.80° thru 112.50° USS ROSS ...... DDG 71 104.05° thru 112.50° USS RUSSELL ...... DDG 59 92.62° thru 109.38° USS MAHAN ...... DDG 72 102.11° thru 112.50° USS PAUL HAMILTON ..... DDG 60 101.35° thru 112.50° USS DECATUR ...... DDG 73 103.00° thru 112.50° USS RAMAGE ...... DDG 61 103.66° thru 112.50° USS MCFAUL ...... DDG 74 102.00° thru USS FITZGERALD ...... DDG 62 102.32° thru 112.50° 112.50E° USS STETHEM ...... DDG 63 102.51° thru 112.50° USS DONALD COOK ...... DDG 75 102.00° thru 112.50°
170
VerDate 25
17. The second masthead light required by Rule 23(a)(ii) will not be displayed on the PC 1 Class. 18. On the following mine warfare type ships, the arc of visibility of the lower all-round minesweep lights required by Rule 27(f), may be obstructed through the following angles rel- ative to the ship’s heading:
Obscured angles relative to Obscured angles relative to Vessel Number ship's heading Vessel Number ship's heading Port STBD Port STBD
OSPREY ...... MHC 51 59.5° to 78.3° 281.7° to 300.5° KING-FISHER MHC 56 59.5° to 78.3° 281.7° to 300.5° HERON ...... MHC 52 59.5° to 78.3° 281.7° to 300.5° CORMORANT MHC 57 59.5° to 78.3° 281.7° to 300.5° PELICAN ...... MHC 53 59.5° to 78.3° 281.7° to 300.5° BLACK HAWK MHC 58 65.0° to 75.6° 284.1° to 294.6° ROBIN ...... MHC 54 59.5° to 78.3° 281.7° to 300.5° USS FALCON MHC 59 65.0° to 75.6° 284.1° to 294.6° ORIOLE ...... MHC 55 65.0° to 75.6° 284.1° to 294.6° CARDINAL ...... MHC 60 65.0° to 75.6° 284.1° to 294.6°
19. Sidelights on the following ships do not comply with Annex I, Section 2 (g):
Distance in meters of sidelights Vessel Number above maximum allowed height.
USS DUBUQUE ...... LPD 8 1.2 USS DENVER ...... LPD 9 4.9 TABLE FIVE
Masthead Forward After mast- lights not masthead head light over all less than 1¤2 Percentage other lights light not in ship's length horizontal Vessel No. and ob- forward aft of forward separation structions. quarter of masthead attained annex I, ship. annex light. annex sec. 2(f) I, sec. 3(a) I, sec. 3(a)
USS SURIBACHI ...... AE 21 ...... X 87 USS MAUNA KEA ...... AE 22 ...... X 88 USS NITRO ...... AE 23 ...... X 86 USS PYRO ...... AE 24 ...... X 87 USS FLINT ...... AE 32 ...... X 98 USS SHASTA ...... AE 33 ...... X 98 USS MARS ...... AFS 1 ...... X 98 USS SYLVANIA ...... AFS 2 ...... X 99 USS NIAGARA FALLS ...... AFS 3 ...... X 97.9 USS WHITE PLAINS ...... AFS 4 ...... X 98 USS CONCORD ...... AFS 5 ...... X 97 USS SAN DIEGO ...... AFS 6 ...... X 97.5 USS SAN JOSE ...... AFS 7 ...... X 98.1 USS LA SALLE ...... AGF 3 ...... X 54 USS CORONADO ...... AGF 11 ...... X 55 USS DALE ...... CG 19 ...... X X 30 USS RICHMOND K. TURNER ...... CG 20 ...... X X 27 USS BELKNAP ...... CG 26 ...... X X 30 USS TICONDEROGA ...... CG 47 ...... X X 38.3 USS YORKTOWN ...... CG 48 ...... X X 38.0 USS VINCENNES ...... CG 49 ...... X X 38 USS VALLEY FORGE ...... CG 50 ...... X X 38 USS THOMAS S. GATES ...... CG 51 ...... X X 38 USS BUNKER HILL ...... CG 52 ...... X X 38 USS MOBILE BAY ...... CG 53 ...... X X 38 USS ANTIETAM ...... CG 54 ...... X X 38 USS LEYTE GULF ...... CG 55 ...... X X 38 USS SAN JACINTO ...... CG 56 ...... X X 38 USS LAKE CHAMPLAIN ...... CG 57 ...... X X 38 USS PHILIPPINE SEA ...... CG 58 ...... X X 38 USS PRINCETON ...... CG 59 ...... X X 38 USS NORMANDY ...... CG 60 ...... X X 38 USS MONTEREY ...... CG 61 ...... X X 38 USS CHANCELLORSVILLE ...... CG 62 ...... X X 38 USS COWPENS ...... CG 63 ...... X X 38 USS GETTYSBURG ...... CG 64 ...... X X 38 USS CHOSIN ...... CG 65 ...... X X 38
171
VerDate 25
TABLE FIVEÐContinued
Masthead Forward After mast- lights not masthead head light over all less than 1¤2 Percentage other lights light not in ship's length horizontal Vessel No. and ob- forward aft of forward separation structions. quarter of masthead attained annex I, ship. annex light. annex sec. 2(f) I, sec. 3(a) I, sec. 3(a)
USS HUE CITY ...... CG 66 ...... X X 38 USS SHILOH ...... CG 67 ...... X X 38 USS ANZIO ...... CG 68 ...... X X 38 USS VICKSBURG ...... CG 69 N/A XX 38 USS LAKE ERIE ...... CG 70 N/A XX 38 USS CAPE ST. GEORGE ...... CG 71 N/A XX 38 USS VELLA GULF ...... CG 72 N/A XX 38 USS PORT ROYAL ...... CG 73 N/A XX 38 USS LONG BEACH ...... CGN 9 ...... X X 13.5 USS BAINBRIDGE ...... CGN 25 ...... X X 19 USS TRUXTUN ...... CGN 35 ...... X X 21 USS CALIFORNIA ...... CGN 36 ...... X X 26.2 USS SOUTH CAROLINA ...... CGN 37 ...... X X 26.2 USS MISSISSIPPI ...... CGN 40 N/A XX 16 USS ARKANSAS ...... CGN 41 ...... X X 18 USS FORRESTAL ...... CV 59 ...... X X 66 USS SARATOGA ...... CV 60 ...... X X 69 USS INDEPENDENCE ...... CV 62 ...... X X 70 USS KITTY HAWK ...... CV 63 ...... X USS CONSTELLATION ...... CV 64 ...... X USS ENTERPRISE ...... CVN 65 ...... X USS NIMITZ ...... CVN 68 ...... X USS DWIGHT D. EISENHOWER ...... CVN 69 ...... X USS CARL VINSON ...... CVN 70 ...... X USS THEODORE ROOSEVELT ...... CVN 71 ...... X USS ABRAHAM LINCOLN ...... CVN 72 ...... X USS GEORGE WASHINGTON ...... CVN 73 ...... X USS JOHN C. STENNIS ...... CVN 74 ...... X USS HARRY S TRUMAN ...... CVN 75 ...... X ...... USS SPRUANCE ...... DD 963 ...... X X 46 USS PAUL F. FOSTER ...... DD 964 ...... X X 46.4 USS KINKAID ...... DD 965 ...... X X 46.4 USS HEWITT ...... DD 966 ...... X X 46.4 USS ELLIOT ...... DD 967 ...... X X 46.4 USS PETERSON ...... DD 969 ...... X X 46.4 USS ARTHUR W. RADFORD ...... DD 968 ...... X X 46.4 USS CARON ...... DD 970 ...... X X 46.4 USS DAVID R. RAY ...... DD 971 ...... X X 46.4 USS OLDENDORF ...... DD 972 N/A XX 45 USS JOHN YOUNG ...... DD 973 ...... X X 46 USS COMTE DE GRASSE ...... DD 974 ...... X X 46.4 USS O'BRIEN ...... DD 975 ...... X X 46.1 USS MERRILL ...... DD 976 ...... X 46.1 USS BRISCOE ...... DD 977 ...... X X 46.4 USS STUMP ...... DD 978 ...... X X 46 USS CONOLLY ...... DD 979 ...... X X 46.4 USS MOOSBRUGGER ...... DD 980 ...... X X 46 USS JOHN HANCOCK ...... DD 981 ...... X X 46.4 USS NICHOLSON ...... DD 982 ...... X X 46.4 USS JOHN RODGERS ...... DD 983 ...... X X 46.4 USS LEFTWICH ...... DD 984 ...... X X 46 USS CUSHING ...... DD 985 ...... X X 46 USS HARRY W. HILL ...... DD 986 ...... X X 46 USS O'BANNON ...... DD 987 ...... X X 46 USS THORN ...... DD 988 ...... X X 46 USS DEYO ...... DD 989 ...... X X 46 USS INGERSOLL ...... DD 990 ...... X X 46 USS FIFE ...... DD 991 ...... X X 48 USS FLETCHER ...... DD 992 ...... X X 46 USS KIDD ...... DD 993 XXX 39.8 USS HAYLER ...... DD 997 N/A XX 44 USS ARLEIGH BURKE ...... DDG 51 XXX 19.0 USS BARRY ...... DDG 52 XXX 20 USS JOHN PAUL JONES ...... DDG 53 XXX 18.9 USS CURTIS WILBUR ...... DDG 54 XXX 20.4
172
VerDate 25
TABLE FIVEÐContinued
Masthead Forward After mast- lights not masthead head light over all less than 1¤2 Percentage other lights light not in ship's length horizontal Vessel No. and ob- forward aft of forward separation structions. quarter of masthead attained annex I, ship. annex light. annex sec. 2(f) I, sec. 3(a) I, sec. 3(a)
USS STOUT ...... DDG 55 XXX 19.6 USS JOHN S. MCCAIN ...... DDG 56 XXX 19.6 USS MITSCHER ...... DDG 57 XXX 20.7 USS LABOON ...... DDG 58 XXX 19.6 USS RUSSELL ...... DDG 59 XXX 20.6 USS PAUL HAMILTON ...... DDG 60 XXX 20.4 USS RAMAGE ...... DDG 61 XXX 20 USS FITZGERALD ...... DDG 62 XXX 20.4 USS STETHEM ...... DDG 63 XXX 20 USS CARNEY ...... DDG 64 XXX 19.7 USS BENFOLD ...... DDG 65 XXX 20.4 USS GONZALES ...... DDG 66 XXX 20.4 USS COLE ...... DDG 67 XXX 20.4 USS THE SULLIVANS ...... DDG 68 XXX 20.5 USS MILIUS ...... DDG 69 XXX 20.4 USS HOPPER ...... DDG 70 XXX 20.4 USS ROSS ...... DDG 71 XXX 20.6 USS MAHAN ...... DDG 72 XXX 13.9 USS DECATUR ...... DDG 73 XXX 14.0 USS MCFAUL ...... DDG 74 XXX 13.9 USS DONALD COOK ...... DDG 75 XXX 14.0 USS CALLAGHAN ...... DDG 994 XXX 44.6 USS SCOTT ...... DDG 995 XXX 44.6 USS CHANDLER ...... DDG 996 XXX 44.6 USS ELK RIVER ...... IX 501 ...... X 18.4 USS BLUE RIDGE ...... LCC 19 N/A N/A X 84 USS MOUNT WHITNEY ...... LCC 20 ...... X 84 USS TARAWA ...... LHA 1 ...... X X 13 USS SAIPAN ...... LHA 2 ...... X X 10.2 USS BELLEAU WOOD ...... LHA 3 ...... X X 13 USS NASSAU ...... LHA 4 ...... X X 13 USS PELELIU ...... LHA 5 ...... X X 13 USS WASP ...... LHD 1 ...... X X 41 USS ESSEX ...... LHD 2 ...... X X 39 USS KEARSARGE ...... LHD 3 ...... X X 39.5 USS BOXER ...... LHD 4 ...... X X 39.3 USS BATAAN ...... LHD 5 ...... X X 39.7 USS BONHOMME RICHARD ...... LHD 6 ...... X X 39.8 USS AUSTIN ...... LPD 4 ...... X 37 USS OGDEN ...... LPD 5 ...... X 51 USS DULUTH ...... LPD 6 ...... X 50 USS CLEVELAND ...... LPD 7 ...... X 49 USS DUBUQUE ...... LPD 8 ...... X 57 USS DENVER ...... LPD 9 N/A N/A X 54.7 USS JUNEAU ...... LPD 10 ...... X 49 USS SHREVEPORT ...... LPD 12 ...... X 49 USS NASHVILLE ...... LPD 13 ...... X 48 USS TRENTON ...... LPD 14 ...... X 41 USS PONCE ...... LPD 15 ...... X 55 USS GUADALCANAL ...... LPH 7 ...... X X 11 USS GUAM ...... LPH 9 ...... X X 11 USS TRIPOLI ...... LPH 10 ...... X X 12 USS NEW ORLEANS ...... LPH 11 ...... X X 10 USS INCHON ...... LPH 12 ...... X X 11 USS ALAMO ...... LSD 33 ...... X 47 USS HERMITAGE ...... LSD 34 ...... X 55 USS ANCHORAGE ...... LSD 36 ...... X 46 USS PORTLAND ...... LSD 37 ...... X 46 USS PENSACOLA ...... LSD 38 ...... X 46 USS MOUNT VERNON ...... LSD 39 ...... X 46 USS FORT FISHER ...... LSD 40 ...... X 46 USS WHIDBEY ISLAND ...... LSD 41 ...... X 65 USS GERMANTOWN ...... LSD 42 ...... X 65 USS FORT McHENRY ...... LSD 43 ...... X 64 USS GUNSTON HALL ...... LSD 44 ...... X 64
173
VerDate 25
TABLE FIVEÐContinued
Masthead Forward After mast- lights not masthead head light over all less than 1¤2 Percentage other lights light not in ship's length horizontal Vessel No. and ob- forward aft of forward separation structions. quarter of masthead attained annex I, ship. annex light. annex sec. 2(f) I, sec. 3(a) I, sec. 3(a)
USS COMSTOCK ...... LSD 46 ...... X 64 USS TORTUGA ...... LSD 46 ...... X 64 USS RUSHMORE ...... LSD 47 ...... X 64 USS ASHLAND ...... LSD 48 ...... X 64.1 USS HARPERS FERRY ...... LSD 49 ...... X 63.9 USS CARTER HALL ...... LSD 50 ...... X 63.9 USS OAK HILL ...... LSD 51 ...... X 63.9 USS PEARL HARBOR ...... LSD 52 ...... X 63.9 USS FREDERICK ...... LST 1184 ...... X 90 USS CAYUGA ...... LST 1186 ...... X 89 USS SAGINAW ...... LST 1188 ...... X 86 USS SAN BERNARDINO ...... LST 1189 ...... X 89 USS SPARTANBURG COUNTY ...... LST 1192 ...... X 88 USS FAIRFAX COUNTY ...... LST 1193 ...... X 90 USS LA MOURE COUNTY ...... LST 1194 ...... X 88 USS HARLAN COUNTY ...... LST 1196 ...... X 89 USS BARNSTABLE COUNTY ...... LST 1197 ...... X 88 USS BRISTOL COUNTY ...... LST 1198 ...... X 90 USS AVENGER ...... MCM 1 ...... X 63 USS DEFENDER ...... MCM 2 ...... X 62 USS SENTRY ...... MCM 3 ...... X 62 USS CHAMPION ...... MCM 4 ...... X 64 USS GUARDIAN ...... MCM 5 ...... X 63 USS DEVASTATOR ...... MCM 6 ...... X 64 USS PATRIOT ...... MCM 7 ...... X 64 USS SCOUT ...... MCM 8 ...... X 64 USS PIONEER ...... MCM 9 ...... 64 USS WARRIOR ...... MCM 10 ...... X 64 USS GLADIATOR ...... MCM 11 ...... X 64 USS ARDENT ...... MCM 12 ...... X 64 USS DEXTROUS ...... MCM 13 ...... X 64 USS CHIEF ...... MCM 14 ...... X 64 USNS KILAUEA ...... T-AE 26 ...... X 94.1
[42 FR 36434, July 14, 1977]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 706.2, see the List of CFR Sec- tions Affected in the Finding Aids section of this volume.
§ 706.3 Exemptions by the Secretary of International Regulations for Prevent- the Navy under Executive Order ing Collisions at Sea, 1960. 11964. TABLE ONE [The following vessels and classes of vessels, less than 150 The Secretary of the Navy hereby ex- meters in length, are permanently exempted pursuant to empts, in accordance with Rule 38 of rule 38(d)(i) from repositioning of masthead lights resulting the International Regulations for Pre- from the prescriptions of Annex I, section 3(a)] venting Collisions at Sea, 1972, the ves- Vessel or class sels and classes of vessels listed in this USNS HAYES (T±AG±195) section, from full compliance with the USNS RANGE SENTINEL (T±AGM±22) Regulations, where an exemption is al- T±AGOR 3 Class lowed by, and for the periods specified T±AGS 26 Class T±AGS 33 Class in, Rule 38. The Secretary of the Navy T±AOG 77 Class further finds that the vessels and class- USNS ALBERT J. MYER (T±ARC 6) es of vessels listed have had their keels T±ATF 166 Class ARS 6 Class laid or are in corresponding stages of ARS 38 Class construction before July 15, 1977, and ASR 7 Class that such vessels and classes of vessels ASR 21 Class ATF 148 Class comply with the requirements of the ATS 1 Class
174
VerDate 25
TABLE ONEÐContinued at Sea, 1972, or the Inland Navigational [The following vessels and classes of vessels, less than 150 Rules. The lights are located and char- meters in length, are permanently exempted pursuant to acterized in such a fashion that, as far rule 38(d)(i) from repositioning of masthead lights resulting from the prescriptions of Annex I, section 3(a)] as possible, they cannot be mistaken for any light authorized by either set Vessel or class of rules. This part publishes the special DDG 2 Class rules with respect to these additional FF 1037 Class station and signal lights promulgated FF 1040 Class by the Secretary of the Navy for ves- FF 1052 Class USS GLOVER (FF 1098) sels of the Navy. FFG 1 Class FFG 7 Class § 707.2 Man overboard lights. LCU 1610 Class LCU 1648 Class Naval vessels may display, as a MSO 422 Class means of indicating man overboard, MSO 508 Class two pulsating, all round red lights in PG 92 Class USS DOLPHIN (AGSS 555) the vertical line located on a mast SSN 594 Class from where they can best be seen. SSN 637 Class SSN 688 Class § 707.3 Yard arm signaling lights. SSBN 616 Class SSBN 627 Class Naval vessels may display, as a SSBN 640 Class means of visual signaling, white all SSBN 726 Class YFU (Ex-LCU 1466 Class) round lights at the ends of the yard arms. These lights will flash in varying [42 FR 36434, July 14, 1977, as amended at 55 sequences to convey the intended sig- FR 27818, July 9, 1990; 60 FR 22506, May 8, nal. 1995] § 707.4 Aircraft warning lights. PART 707—SPECIAL RULES WITH RE- Naval vessels may display, as a SPECT TO ADDITIONAL STATION means of indicating the presence of an AND SIGNAL LIGHTS obstruction to low flying aircraft, one all round red light on each obstruction. Sec. 707.1 Purpose of regulations. § 707.5 Underway replenishment con- 707.2 Man overboard lights. tour lights. 707.3 Yard arm signaling lights. 707.4 Aircraft warning lights. Naval vessels may display, as a 707.5 Underway replenishment contour means of outlining the contour of the lights. delivery ship during nighttime under- 707.6 Minesweeping station keeping lights. way replenishment operations, either 707.7 Submarine identification light. red or blue lights at delivery-ship- 707.8 Special operations lights. deck-edge extremities. 707.9 Convoy operations stern light. 707.10 Wake illumination light. [42 FR 61596, Dec. 6, 1977, as amended at 44 707.11 Flight operations lights. FR 27991, May 14, 1979] 707.12 Amphibious operations lights.
AUTHORITY: 33 U.S.C. 182 and 1606, E.O. § 707.6 Minesweeping station keeping 11964. lights.
SOURCE: 42 FR 61596, Dec. 6, 1977, unless Naval vessels engaged in minesweep- otherwise noted. ing operations may display, as an aid in maintaining prescribed intervals and § 707.1 Purpose of regulations. bearings, two white lights in a vertical All ships are warned that when U.S. line visible from 070° through 290° rel- naval vessels are met in international ative. and inland waters, some of the naviga- tional lights displayed by them may be § 707.7 Submarine identification light. special lights for naval purposes. When Submarines may display, as a dis- used, they may be displayed simulta- tinctive means of identification, an neously with the ordinary navigational intermittent flashing amber beacon lights required by the International with a sequence of operation of one Regulations for Preventing Collisions flash per second for three (3) seconds
175
VerDate 25
followed by a three (3) second off-pe- § 707.11 Flight operations lights. riod. The light will be located where it Naval vessels engaged in night flight can best be seen, as near as practicable, all around the horizon. It shall not be operations may display various ar- located less than two (2) feet above or rangements of light systems contain- below the masthead lights. ing combinations of different colored lights as a means of assisting in the [48 FR 4284, Jan. 31, 1983] launch and recovery of aircraft and en- § 707.8 Special operations lights. hancing flight safety. These light sys- tems will be located at various points Naval vessels may dispay, as a means on the vessels, depending on the vessel of coordinating certain special oper- type and the nature of the flight oper- ations, a revolving beam colored red, green, or amber, located on either yard ations being conducted. arm or the mast platform from where § 707.12 Amphibious operations lights. it can best be seen all around the hori- zon. Naval vessels engaged in night am- phibious operations may display var- § 707.9 Convoy operations stern light. ious arrangements of light systems Naval vessels may display, during pe- containing combinations of different riods of convoy operations, a blue light colored lights as a means of assisting located near the stern with the same in the launch and recovery of assault characteristics as, but in lieu of, the craft and enhancing the safety of the normal white stern light. amphibious operation. These light sys- tems will be located at various points § 707.10 Wake illumination light. on the vessel, depending on the vessel Naval vessels may display a white type and the nature of the amphibious spot light located near the stern to il- operations being conducted. luminate the wake.
176
VerDate 25
PART 716—DEATH GRATUITY § 716.2 Definitions. For the purposes of this part, terms Subpart A—Provisions Applicable to the are defined as follows: Navy and the Marine Corps (a) Member of the naval service. This Sec. term includes: 716.1 Principal rule. (1) A person appointed, enlisted, or 716.2 Definitions. inducted into the Regular Navy, Regu- 716.3 Special situations. lar Marine Corps, Naval Reserve or Ma- 716.4 Eligible survivors. rine Corps Reserve, and includes a mid- 716.5 Delegation of authority. shipman at the United States Naval 716.6 Death occurring after active service. Academy; 716.7 Payment of the death gratuity. (2) Enlisted members of the Fleet Re- 716.8 Payments excluded. serve and Fleet Marine Corps Reserve 716.9 Erroneous payment. and retired members; (3) A member of the Naval Reserve Subpart B—Provisions Applicable to the Navy Officers Training Corps when ordered to annual training duty for 14 days or 716.10 Procedures. more, and while performing authorized travel to and from that duty; and Subpart C—Provisions Applicable to the (4) Any person while en route to or Marine Corps from, or at a place for final acceptance 716.11 Procedures. for entry upon active duty in the naval service who has been ordered or di- AUTHORITY: Sec. 301, 80 Stat. 379, 1(32)(A), rected to go to that place, and who has 72 Stat. 1452; 5 U.S.C. 301, 10 U.S.C. 1475–1480, been provisionally accepted for such Pub. L. 89–554. duty. SOURCE: 24 FR 7523, Sept. 18, 1959, unless (b) Active duty. This term is defined otherwise noted. as (1) full-time duty performed by a member of the naval service, other Subpart A—Provisions Applicable than active duty for training, or (2) as to the Navy and the Marine Corps a midshipman at the United States Naval Academy, and (3) authorized § 716.1 Principal rule. travel to or from such duty or service. Under title 10 U.S.C., section 1475, the (c) Active duty for training. Such term Secretary of the Navy shall have a means: death gratuity paid immediately upon (1) Full-time duty performed by a official notification of the death of a member of a Reserve component of the member of the naval service who dies naval service for training purposes; while on active duty, active duty for (2) Annual training duty performed training, or inactive duty training. The for a period of 14 days or more by a death gratuity shall equal six months’ member of the Naval Reserve Officers basic pay (plus special, incentive, and Training Corps; and proficiency pay) at the rate to which (3) Authorized travel to or from such the deceased member was entitled on duty. the date of his death but shall not be (d) Inactive-duty training. Such term less than $800 nor more than $3,000. A is defined as any of the training, in- kind of special pay included is the 25% struction, appropriate duties, or equiv- increase in pay to which a member alent training, instruction, duty, ap- serving on a naval vessel in foreign wa- propriate duties, or hazardous duty ters is entitled under 10 U.S.C. 5540 performed with or without compensa- when retained beyond expiration of en- tion by a member of a Reserve compo- listment because such retention was nent prescribed by the Secretary of the essential to the public interest. Navy pursuant to sections 206, 309, and
177
VerDate 25
1002 of title 37 U.S.C. or any other pro- his home by the most direct route. vision of law. The term does not in- That period may not end before mid- clude: night of the day on which the member (1) Work or study performed by a is discharged or released. member of a Reserve component in connection with correspondence [24 FR 7523, Sept. 18, 1959, as amended at 25 FR 7792, Aug. 16, 1960] courses in which he is enrolled, or (2) Attendance at an educational in- § 716.4 Eligible survivors. stitution in an inactive status under the sponsorship of the Navy or Marine (a) The death gratuity shall be paid Corps. to or for the living survivor or sur- vivors of the deceased member first [24 FR 7523, Sept. 16, 1959, as amended at 37 listed below: FR 6471, Mar. 30, 1972; 44 FR 25647, May 2, 1979] (1) The lawful spouse. (For purpose of this part, a man or woman shall be § 716.3 Special situations. considered to be the spouse if legally married to the member at the time of (a) Service without pay. Any member of a Reserve component who performs the member’s death.) active duty, active duty for training, (2) His children (without regard to or inactive-duty training without pay their age or marital status) in equal shall, for purposes of a death gratuity shares. payment, be considered as being enti- (3) Parent(s), brother(s) or sister(s) or tled to basic pay, including special pay any combination of them, when des- and incentive pay if appropriate, while ignated by the deceased member. performing such duties. (4) Undesignated parents in equal (b) Death occurring while traveling to shares. and from active duty for training and in- (5) Undesignated brothers and sisters active-duty training. Any member of a in equal shares. In paragraphs (a)(2), (3) Reserve component who, when author- and (4), respectively, of this section, ized or required by competent author- the terms ‘‘child’’ and ‘‘parent’’ have ity, assumes an obligation to perform the meanings assigned to them by title active duty for training or inactive- 10 U.S.C. section 1477 and the term duty training and who dies from an in- ‘‘parents’’ includes persons in loco jury incurred on or after January 1, parentis as indicated by that section. 1957 while proceeding directly to or di- The terms ‘‘brother’’ and ‘‘sister’’ in rectly from such active duty for train- paragraphs (a) (3) and (5) of this section ing or inactive-duty training, shall be include brothers and sisters of the half deemed to have been on active duty for blood and those through adoption. training or inactive-duty training as (b) Designation of payee by service the case may be. member. Where the service member has (c) Hospitalization. A member of a Re- designated a beneficiary and is not sur- serve component who suffers disability vived by a spouse, child, or children, while on active duty, active duty for the payment will be made to the spe- training, or inactive-duty training, and cific person designated by him provided who is placed in a new status while he the designee falls within the class of is receiving hospitalization or medical beneficiaries permitted as set forth in care (including out-patient care) for paragraph (a)(3) of this section. If more such disability, shall be deemed, for than one person is so designated on the purposes of death gratuity payment to Record of Emergency, payment will be have continued on active duty, active made in equal shares unless the mem- duty for training, or inactive-duty ber designated a proportionate share to training, as the case may be, in the each beneficiary. Frivolous designa- event of his death in such status. tions, such as one per centum to a par- (d) Discharge or release from a period of ticular beneficiary, should not be active duty. A person who is discharged made. or released from active duty (other (c) Death of survivor prior to receipt of than for training) is considered to con- gratuity. (1) If a survivor dies before re- tinue on that duty during the period of ceiving payment, or if a designated time required for that person to go to beneficiary predeceases the member
178
VerDate 25
(and there is no other designated bene- (1) Cases in which a doubt may exist ficiary) such amount shall be paid to as to the identity of the legal bene- the then living survivor or survivors ficiary; and listed first under paragraph (a) of this (2) Cases in which the widow or des- section. ignated beneficiary(ies) of the deceased (2) In case one of the beneficiaries service member was not residing with (parents or brothers or sisters) des- him at or near his place of duty at the ignated by a member, pursuant to time of his death. paragraph (a)(3) of this section, to re- [24 FR 7523, Sept. 18, 1959, as amended at 44 ceive death gratuity payment dies FR 25647, May 2, 1979] prior to the member’s death, or after his death but prior to the time pay- § 716.6 Death occurring after active ment is made, the share which would service. have been paid to the deceased des- (a) Under title 10 U.S.C., section 1476, ignee may be paid to the other person the death gratuity will be paid in any or persons designated. case where a member or former mem- ber dies on or after January 1, 1957, [24 FR 7523, Sept. 18, 1959, as amended at 37 during the 120-day period which begins FR 6471, Mar. 30, 1972] on the day following the date of his dis- § 716.5 Delegation of authority. charge or release from active duty, ac- tive duty for training, on inactive duty (a) Pursuant to the authority con- training, if the Administrator of Veter- tained in title 10 U.S.C., section 1479, as ans’ Affairs determines that: to deaths described in section 1475 (1) The decedent was discharged or thereof, the Secretary of the Navy has released, as the case may be, from the delegated to commanding officers of service under conditions other than naval commands, installations, or dis- dishonorable from the last period of tricts, with respect to naval personnel, the duty or training performed; and and to Marine Corps commanding gen- (2) Death resulted from disease or in- erals and officers in command of regi- jury incurred or aggravated while on ments, battalions or equivalent units such active duty or active duty for and of separate or detached commands training; or while performing author- who have custody of service records, ized travel to or from such duty; or with respect to Marine Corps person- (3) Death resulted from injury in- nel, authority to certify for the pay- curred or aggravated while on such in- ment of death gratuity the lawful active-duty training or while traveling spouse or designated beneficiary(ies) of directly to or from such duty or train- the deceased service member who was ing. residing with him at or near his place (b) For purposes of computing the of duty at the time of his death, except amount of the death gratuity in such in cases in which a doubt may exist as instances, the deceased person shall be to the identity of the legal beneficiary. deemed to be entitled on the date of his Disbursing officers are authorized to death to basic pay (plus any special, in- make payment of the death gratuity centive and proficiency pay) at the rate upon receipt of certification from the to which he was entitled on the last Commanding Officer. day he performed such active duty, ac- (b) The Secretary of the Navy has tive duty for training, or inactive duty delegated authority to the Chief of training. A kind of special pay included Naval Personnel as to naval personnel, is a pay increase under 10 U.S.C. 5540; and to the Commandant of the Marine see § 716.1. Corps (Code MSPA–1) as to Marine (c) The Department of the Navy is Corps personnel, the authority to cer- precluded from making payment of the tify the beneficiary(ies) for receipt of death gratuity pending receipt of the payment of death gratuity in all appro- determinations described in paragraph priate cases of payment of death gratu- (a) of this section. In view of this, com- ity under the Servicemen’s and Veter- mands should insure that the medical ans’ Survivor Benefits Act (now reen- records and reports of investigations acted in 10 U.S.C. 1475–1480), including, by fact-finding bodies be submitted to but not limited to: the Navy Department at the earliest
179
VerDate 25
possible date. The Veterans’ Adminis- the check is delivered. Under no cir- tration is promptly notified of all cumstances will the check be delivered deaths of this category reported, and to the payee until this action has been upon the request of that agency all per- accomplished. The payee will retain tinent data is forwarded. the copy of the voucher, DD Form 397, and the signed original voucher will be § 716.7 Payment of the death gratuity. returned by hand to the disbursing offi- (a) Claim certification and voucher for cer by the person designated to deliver the death gratuity payment. The Comp- the check. troller General of the United States [24 FR 7523, Sept. 18, 1959, as amended at 44 has approved DD Form 397 as the form FR 25647, May 2, 1979] to be used hereafter for claim certifi- cation and voucher for the death gratu- § 716.8 Payments excluded. ity payment. (a) No payment shall be made if the (b) Active duty deaths (Navy). To ef- deceased member suffered death as a fect immediate payment of death gra- result of lawful punishment for a crime tuity the following actions will be or for a military or naval offense, ex- taken: cept when death was so inflicted by (1) The commanding officer will as- any hostile force with which the Armed certain that the deceased member died Forces of the United States have en- while on active duty, active duty for gaged in armed conflict. training, or inactive-duty training, and will obtain the name, relationship, and (b) No payment will be made to a sur- address of the eligible survivor from vivor implicated in the homicide of the the Service Record of the deceased. deceased in the absence of evidence The Dependency Application/Record of clearly absolving such survivor of any Emergency Data (NAVPERS 1070/602) felonious intent. or Record of Emergency Data (DD (c) Unless the laws of the place where Form 93), will normally contain this a minor beneficiary resides provide information. In addition, in the case of that such a payment would grant a enlisted personnel, the Application for valid acquittance of the Government’s Dependents Allowance (BAQ [Basic Al- obligation to make a payment of death lowance for Quarters]), NAVPERS gratuity to or for a minor, a death gra- Form 668, may serve as a source of cor- tuity of more than $1,000 may not be roboration. He will, with the coopera- paid in whole or in part to a parent as tion of the disbursing officer, initiate natural guardian of a minor or to any preparation of a Claim Certification other person who is not a legal guard- and Voucher for Death Gratuity Pay- ian appointed by the civil court to ment, DD Form 397, in original and five manage the minor’s financial affairs. copies, completing blocks 5 through 14 [24 FR 7523, Sept. 18, 1959, as amended at 37 inclusive, and the administrative state- FR 6471, Mar. 30, 1972; 44 FR 25647, May 2, ment in block 18. The administrative 1979] statement in block 18 will be signed by the commanding officer or acting com- § 716.9 Erroneous payment. manding officer. Where through administrative mis- (2) The disbursing officer will, upon take of fact or law, payment of the receipt of the DD Form 397, draw a death gratuity is made to a person check to the order of the eligible sur- clearly not entitled thereto, and it is vivor named in block 5, complete equally clear that another person is en- blocks 2, 3, 4, and the check payment titled to the death gratuity, the Chief data portion of block 18. of Naval Personnel (Pers–732) or the (3) Under arrangements made by the Commandant of the Marine Corps commanding officer, the check and the (Code MSPA–1), as appropriate, will original and one copy of the voucher, certify payment to the proper payee, DD Form 397, will be delivered to the irrespective of recovery of the erro- payee. The payee will be required to neous payment. On the other hand, complete block 15, sign in block 17a, where a payment of the death gratuity and have two witnesses complete block has been made to an individual on the 17 on the original voucher at the time basis of representations of record made
180
VerDate 25
by the deceased member as to his mari- guardianship must be provided for the tal and dependency status, and the protection of the decedent’s children, Government otherwise has no informa- or wherein a technicality exists which tion which would give rise to doubt makes immediate certification legally that such status is as represented, the unsound, will be considered question- payment is not to be regarded as ‘‘erro- able. neous.’’ The Government has a good ac- (3) Exception. Where the entitlement quittance in such cases even though it of the survivor who is living with the may subsequently develop that the deceased at the time of his death is payee is not the proper statutory payee questionable and such survivor is in of the gratuity and no second payment dire financial circumstances, the Chief is authorized. of Naval Personnel (Pers–G23) shall be requested by message to make an adju- [24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25647, May 2, 1979] dication of entitlement. If it is deter- mined that the survivor is entitled to the payment, the commanding officer Subpart B—Provisions Applicable will be authorized by message to exe- to the Navy cute DD Form 397. (b) Action by Casualty Assistance Calls § 716.10 Procedures. Program (CACP) officers; Potential bene- (a) Action by commanding officers. See ficiary not residing with member—(1) § 716.7(b)—(1) Immediate payment—Eligi- Widow(er). The CACP officer, on his or ble beneficiary residing with deceased her initial visit to a widow(er), deter- member. Commanding officers, in order mines, propriety permitting, whether to expedite the payment of the death there is an urgent need for financial as- gratuity, will, upon official notifica- sistance. If there is an urgent need for tion of death, ascertain the duty status financial assistance, the CACP officer of the deceased, and determine the eli- should obtain DD Form 397 from any gibility of the spouse or designated military disbursing office and, on his beneficiary who was residing with the or her second visit to the widow(er), deceased member on or near his duty have him or her sign it and obtain the station at the time of his death. The signatures of two witnesses on the services of a staff or district legal offi- form. It should be noted that the fol- cer will be utilized as required. Every lowing procedure is confined to cases in effort should be made to effect prompt which the decedent’s eligible survivor payment (within 24 hours, if possible). for the death gratuity is a widow(er), It is the intent that determinations of and efforts to effect immediate pay- entitlement by commands in the field ment in accordance with the intent of will be confined largely to spouses and the governing statute are appropriate. parents designated by the service mem- In such cases, the CACP officer, upon ber who were living with him at the learning that a widow(er), not residing time of his death. with his or her spouse at or near the (2) Questionable cases. If entitlement spouse’s duty station, is in urgent need to the death gratuity payment is ques- of financial assistance, shall advise the tionable after seeking advice of the Chief of Naval Personnel (Pers-732) of staff or district legal officer, such case the need by message. The CACP officer will be forwarded promptly to the Chief shall send a copy of this message to the of Naval Personnel (Pers–732) with a decedent’s duty station, if known. brief statement relative to the facts Upon receipt, the disbursing officer which raised the issue of doubt. Every will furnish the Navy Finance Center, effort will be made to expedite action Cleveland, Ohio 44199, with the dece- by a review of the official records of dent’s basic monthly pay [plus any spe- the decedent in the Bureau of Naval cial (see § 716.1), incentive, and pro- Personnel and the Family Allowance ficiency pay] in the event the pay ac- Activity at Cleveland, Ohio. Those count has not been forwarded pre- cases wherein the service member was viously to that center sufficiently in a deserter status, absent without early to have reached there. The CACP leave, or in the custody of civil au- officer shall also send a copy of his thorities at the time of death, wherein message to the Navy Finance Center
181
VerDate 25
with the request that payment of the cates the beneficiary eligible to receive death gratuity be made upon receipt of payment on the proper voucher (DD the certification of beneficiary entitle- Form 397). Otherwise the pay record ment from the Chief of Naval Person- will be sent to the Army Finance Cen- nel (Pers-732). ter, Air Force Finance Center, Com- (2) Navy Relief. In cases where there mandant of the Marine Corps (Code is immediate need prior to receipt of CDB), the Navy Finance Center, of the the death gratuity, the Navy Relief So- Commandant, U.S. Coast Guard, as ap- ciety will be contacted by the Casualty propriate. Assistance Calls Program officer. (c) Action by the Chief of Naval Person- [24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25647, May 2, 1979; 45 FR 43165, June 26, nel. (1) In all cases where death gratu- 1980] ity is not authorized to be paid locally and in cases where authority exists to pay locally but entitlement is ques- Subpart C—Provisions Applicable tionable (see paragraph (a)(2) of this to the Marine Corps section), the Chief of Naval Personnel (Pers–732) will expedite adjudication of § 716.11 Procedures. claims. As indicated in paragraph (b)(1) (a) Action. Commanding officers will of this section CACP officers will refer direct immediate payment of the gra- cases of urgent financial need to the tuity where the deceased member’s Chief of Naval Personnel (Pers–732) by spouse was, in fact, residing with the message for action. member on or near the station of duty (2) If a minor is entitled to a death at the time of the member’s death gratuity under 10 U.S.C. 1477 not ex- while on active duty, active duty for ceeding $1,000, such death gratuity may training, or inactive-duty training. be paid to the father or mother as nat- Every effort should be made to effect ural guardian on behalf of the minor, such payment promptly (within 24 provided a legally appointed guardian hours, if possible). In cases where the has not been appointed, upon substan- eligible survivor residing with the tiation by a sworn (notarized) state- member on or near the duty station is ment of the natural guardian: other than a spouse, commanding offi- (i) That no legal guardian has been cers may direct the payment of death appointed and that such an appoint- gratuity when the case can be properly ment is not contemplated; determined, and an urgent need exists (ii) The relationship of the natural for immediate payment. Proper deter- guardian to the minor; mination is imperative. (iii) That the minor is in the actual (b) Qualifications. (1) Where any doubt custody of the natural guardian; exists as to the legal recipient of the (iv) That an amount paid to the natu- gratuity, the case will be referred to ral guardian will be held for, or applied the Commandant of the Marine Corps to, the use and benefit of the minor. (Code MSPA–1) for determination. If the death gratuity to which a minor is entitled exceeds $1,000, the appoint- [24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25648, May 2, 1979] ment of a legal guardian on behalf of the minor is requested. Certification of the minor eligible to receive the death PART 718—MISSING PERSONS ACT gratuity is made by the Chief of Naval Personnel (Pers–732) and payment is ef- Sec. fected by the Navy Finance Center, 718.1 General provisions. Cleveland, OH 44199; 718.2 Allotments. (d) Cross-servicing procedure. Payment 718.3 Transportation of dependents. of the death gratuity may be made by 718.4 Delegations. a disbursing officer who is maintaining the pay record of a member of another § 718.1 General provisions. service, provided the command to (a) Under the provisions of the Miss- which the member is attached and ing Persons Act, as amended, a finding which maintains his service record is of presumptive death is made by the in the immediate vicinity and certifi- Secretary of the Navy when a survey of
182
VerDate 25
all available sources of information in- establish conclusively the fact of death dicates beyond doubt that the pre- and settlement of accounts is made to sumption of continuance of life has the date established as the date of re- been overcome. When a finding of pre- ceipt of evidence on which the fact of sumptive death is made, a man’s pay death is established. accounts are closed as of the day fol- (Sec. 301, 80 Stat. 379; 5 U.S.C. 301. Interpret lowing the expiration of the 12 months’ or apply 80 Stat. 112–117, 248–254; 5 U.S.C. absence or a longer period when justi- 5561–5568, 37 U.S.C. 551–558) fied, and the various benefits, such as [17 FR 5390, June 14, 1952] the six months’ gratuity, become pay- able. A finding of presumptive death § 718.2 Allotments. concerning an officer or enlisted man During such period as a person is in a of the Navy means simply that as of status of missing, missing in action, in- the date thereof he is for the purposes terned in a foreign country, captured of Naval administration no longer by a hostile force, beleaguered by a alive. It does not mean that death oc- hostile force, or besieged by a hostile curred on that or on any other certain force, allotments from his pay and al- date. lowances may be initiated, continued, (b) Findings of presumptive death are discontinued, increased, decreased, sus- never made when the ‘‘missing’’ status pended or resumed in behalf of his de- has not continued for at least 12 pendents and for such other purposes months. Whenever, subsequent to the as are justified by the circumstances expiration of the 12th month, cumu- and are in the interests of the person lative or other evidence establishes by or of the Government. its preponderance that a ‘‘missing’’ person is no longer alive, a prompt (R.S. 161, sec. 5031, 70A Stat. 278, as amended; finding of presumptive death will be 5 U.S.C. 22, 10 U.S.C. 5031, 50 U.S.C. App. 1013– made. Also, such a finding will be made 1015) whenever justified by the lapse of time [26 FR 12658, Dec. 29, 1961] beyond the 12 months’ absence without specific information being received. § 718.3 Transportation of dependents. (c) The Secretary of the Navy, or (a) Whenever a person in active serv- such subordinate as he may designate, ice is officially reported as dead, in- has authority to make all determina- jured, (Only when the anticipated pe- tions necessary in the administration riod of hospitalization or treatment is of the act, and for the purposes of the expected to be of prolonged duration as act determinations so made shall be shown by a statement of the command- conclusive as to death or finding or ing officer at the receiving hospital), death, as to any other status dealt with missing for a period of 29 days or more, by the act, and as to any essential date interned in a foreign country, or cap- including that upon which evidence or tured by a hostile force, his depend- information is received in the Depart- ents, household and personal effects in- ment. The determination of the Sec- cluding one privately owned motor ve- retary of the Navy, or of such subordi- hicle may be moved (including pack- nate as he may designate, is conclusive ing, crating, drayage, temporary stor- as to whether information received age, and unpacking of household and concerning any person is to be con- personal effects) to the official resi- strued and acted upon as an official re- dence of record for any such person or port of death. When any information to the residence of his dependent, next deemed to establish conclusively the of kin, or other person entitled to re- death of any person is received in the ceive custody of the effects in accord- department, action shall be taken ance with the provisions of paragraph thereon as an official report of death, (d) of this section; or, upon application notwithstanding any prior action relat- by such dependent, next of kin, heir or ing to death or other status of such legal representative, or other person person. Under the foregoing provisions determined in accordance with para- a determination of death is made prior graph (d) of this section, or upon the to the expiration of 12 months when person’s application if injured, to such the evidence received is considered to location as may have been determined
183
VerDate 25
in advance or as may be subsequently (1) If no duly appointed legal rep- approved, except that a reasonable re- resentative of the owner of the per- lationship must exist between the con- sonal effects makes demand upon the dition and circumstances of the de- Department of the Navy for the effects, pendents and the destination to which the determination by naval authorities transportation is requested. In the case as to the next of kin or heirs of the of a person in an injured status, trans- owner of the personal effects may be portation of his dependents or house- made on the basis of the following: hold and personal effects may be au- (i) Personnel records; or thorized only when the hospitalization (ii) Other documents applicable to or treatment of the injured person will the case; or be of prolonged duration. Payment in (iii) Title 10 U.S.C., section 2771, to money of amounts equal to such com- the extent that it prescribes an order mercial transportation costs or a mon- of precedence among next of kin or etary allowance in lieu of transpor- heirs, namely, the widow or widower of tation as authorized by law for the the owner; if no widow or widower, whole or such part of the travel for then the child or children of the owner which transportation in kind is not and descendants of deceased children, furnished, may be authorized, when by representation; if none of the above, such travel has been completed. the parents of the owner or the sur- (b) When the Secretary of the Navy vivor of them; or if none of the above, or his designee determines that an other persons determined to be eligible emergency exists and that such sale under the laws of the domicile of the would be in the best interests of the owner. Government, he may provide for the (2) Such determination should be re- disposition of the motor vehicles and garded as administrative rather than other bulky items of such household legal, as the determination does not and personal effects of the person by vest title to effects or proceeds in the public or private sale. Prior to any next of kin, heirs, or legal representa- such sale, and if practicable, a reason- tive to whom the effects are delivered. able effort shall be made to determine Therefore, delivery of the personal ef- the desires of the interested persons. fects to other than the owner will be The net proceeds received from such made subject to the following advisory sale shall be transmitted to the owner, note which should be written on a copy next of kin, heir or legal representa- of the inventory or in a letter: tive, or other person determined in ac- cordance with paragraph (d) of this sec- Delivery of the personal effects into the tion; but if there be no such persons or custody of other than the owner thereof, by the Department of the Navy, does not in any if such persons or their addresses are way vest title to the effects in the recipient. not ascertainable within one year from Delivery of the effects to the recipient is the date of sale, the net proceeds may made so that distribution may be made in be covered into the Treasury as mis- accordance with the laws of the state in cellaneous receipts. which the owner of the effects was legally (c) The Secretary of the Navy or his domiciled or to restore the effects to the designee is authorized to store the owner in the event of his return from a miss- household and personal effects of the ing status. person until such time as proper dis- (3) When it is impracticable to divide position can be made. The cost of such the personal effects of a person into storage and transportation, including equal shares, and two or more persons packing, crating, drayage, temporary within a class, as provided in 10 U.S.C. storage, and unpacking of household section 2771, are entitled to receive the and personal effects, will be charged effects but cannot agree among them- against appropriations currently avail- selves as to which one of them shall re- able. ceive the effects, then all of the effects (d) The following provisions apply to will be retained by either the Personal the determination of the ‘‘other per- Effects Distribution Center at Norfolk, son’’ or persons referred to in para- VA, or the Personal Effects Distribu- graphs (a) and (b) of this section who tion Center at Oakland, CA, for a pe- may receive the effects or proceeds. riod of two years from the date of
184
VerDate 25
death of the member. At the expiration AUTHORITY: 3 U.S.C. 301; 5 U.S.C. 301; 10 of the two-year period such effects will U.S.C. 815, 5013, 5148; 32 CFR 700.206 and be sold. 700.1202. (R.S. 161, sec. 5031, 70A Stat. 278, as amended; 5 U.S.C. 22, 10 U.S.C. 5031, 50 U.S.C. App. 1013– Subparts A–B [Reserved] 1015; Pub. L. 89–554, 80 Stat. 379 (5 U.S.C. 301) [26 FR 12659, Dec. 29, 1961, as amended at 37 Subpart C—Trial Matters FR 6472, Mar. 30, 1972; 44 FR 22456, Apr. 16, 1979] § 719.112 Authority to grant immunity from prosecution. § 718.4 Delegations. (a) General. In certain cases involving The Secretary of the Navy has dele- more than one participant, the inter- gated to the Director, Personal Serv- ests of justice may make it advisable ices Division, Bureau of Naval Person- to grant immunity, either trans- nel with respect to personnel in the actional or testimonial, to one or more Navy, and to the Head, Personal Af- of the participants in the offense in fairs Branch Manpower Department consideration for their testifying for (Code MSPA), United States Marine the Government or the defense in the Corps, with respect to personnel in the investigation and/or the trial of the Marine Corps, authority to make all principal offender. Transactional im- determinations to administer the act. munity, as that term is used in this (Pub. L. 89–554, 80 stat. 379 (5 U.S.C. 301)) section, shall mean immunity from [17 FR 5391, June 14, 1952, as amended at 19 prosecution for any offense or offenses FR 7959, Dec. 2, 1954; 44 FR 22456, Apr. 16, to which the compelled testimony re- 1979] lates. Testimonial immunity, as that term is used in this section, shall mean PART 719—REGULATIONS SUPPLE- immunity from the use, in aid of future MENTING THE MANUAL FOR prosecution, of testimony or other in- COURTS-MARTIAL formation compelled under an order to testify (or any information directly or Subparts A–B [Reserved] indirectly derived from such testimony or other information). The authority to Subpart C—Trial Matters grant either transactional or testi- monial immunity to a witness is re- Sec. served to officers exercising general 719.112 Authority to grant immunity from prosecution. court-martial jurisdiction. This au- 719.113–719.114 [Reserved] thority may be exercised in any case 719.115 Release of information pertaining to whether or not formal charges have accused persons; spectators at judicial been preferred and whether or not the sessions. matter has been referred for trial. The approval of the Attorney General of Subpart D Reserved [ ] the United States on certain orders to Subpart E—Miscellaneous Matters testify may be required, as outlined below. 719.138 Fees of civilian witnesses. (b) Procedure. The written rec- 719.139–719.141 [Reserved] ommendation that a certain witness be 719.142 Suspension of counsel. 719.143 Petition for new trial under 10 U.S.C. granted either transactional or testi- 873. monial immunity in consideration for 719.144 Application for relief under 10 U.S.C. testimony deemed essential to the Gov- 869, in cases which have been finally re- ernment or to the defense shall be for- viewed. warded to an officer competent to con- 719.145–719.150 [Reserved] vene a general court-martial for the 719.151 Furnishing of advice and counsel to witness for whom immunity is re- accused placed in pretrial confinement. 719.155 Application under 10 U.S.C. 874(b) for quested, i.e., any officer exercising gen- the substitution of an administrative eral court-martial jurisdiction. Such form of discharge for a punitive dis- recommendation will be forwarded by charge or dismissal. the trial counsel or defense counsel in
185
VerDate 25
cases referred for trial, the pretrial in- eral regarding relations between the vestigating officer conducting an in- Departments of Defense and Justice. vestigation upon preferred charges, the The cognizant officer exercising gen- counsel or recorder of any other fact- eral court-martial jurisdiction may ob- finding body, or the investigator when tain approval by the Attorney General no charges have yet been preferred. of a proposed grant of immunity by di- The recommendation shall state in de- recting a letter requesting the assist- tail why the testimony of the witness ance of the Judge Advocate General is deemed so essential or material that (Code 20) in the form prescribed in the interests of justice cannot be paragraph (e) of this section. served without the grant of immunity. (e) Content of immunity requests. In all The officer exercising general court- cases in which approval of the Attor- martial jurisdiction shall act upon ney General of the United States is re- such request after referring it to his quired prior to the issuance of a grant staff judge advocate for consideration of immunity, whether under paragraph and advice. If approved, a copy of the (c) or (d) of this section, the cognizant written grant of immunity must be officer exercising general court-martial served upon the accused or his defense jurisdiction shall forward by message counsel within a reasonable time be- or letter the proposed order to testify fore the witness testifies. Additionally, and grant of immunity to the Judge if any witness is expected to testify in Advocate General (Code 20). The order response to a promise of leniency, the to testify should be substantially in terms of the promise of leniency must the form set forth in appendix A-1-i(3) be reduced to writing and served upon of the Manual of the Judge Advocate the accused or his defense counsel in General. Requests for assistance shall the same manner as a grant of immu- be in writing, should allow at least nity. three weeks for consideration, and (c) Civilian witnesses. Pursuant to 18 must contain the following informa- U.S.C. 6002 and 6004, if the testimony or tion: other information of a civilian witness (1) Name, citation, or other identify- at a court-martial may be necessary in ing information of the proceeding in the public interest, and if the civilian which the order is to be used. witness has refused or is likely to (2) Name of the witness for whom the refuse to testify or provide other infor- immunity is requested. mation on the basis of a privilege (3) Name of the employer or company against self-incrimination, then the ap- with which a witness is associated or proval of the Attorney General of the the military unit or organization to United States, or his designee, must be which a witness is assigned. obtained prior to the execution or (4) Date and place of birth, if known, issuance of an order to testify to such of the witness. civilian witness. The cognizant officer (5) FBI or local police file number, if exercising general court-martial juris- any, and if known. diction may obtain the approval of the (6) Whether any State or Federal Attorney General in such a cir- charges are pending against the wit- cumstance by directing a message or ness and the nature of the charges. letter requesting the assistance of the Judge Advocate General (Code 20) in (7) Whether the witness is currently the form prescribed in paragraph (e) of incarcerated, under what conditions, this section. and for what length of time. (d) Cases involving national security. In (8) A brief resume of the background all cases involving national security or of the investigation or proceeding be- foreign relations of the United States, fore the agency or department. the cognizant officer exercising general (9) A concise statement of the rea- court-martial jurisdiction shall for- sons for the request, including: ward any proposed grant of immunity (i) What testimony the witness is ex- to the Judge Advocate General for the pected to give; purpose of consultation with the De- (ii) How this testimony will serve the partment of Justice. See section 0126 of public interest; the Manual of the Judge Advocate Gen- (iii) Whether the witness:
186
VerDate 25
(A) Has invoked the privilege against be so disqualified under those cir- self-incrimination; or cumstances. (B) Is likely to invoke the privilege; (h) Form of grant. In any case in (iv) If paragraph (e)(9)(iii)(B) of this which a military witness is granted section is applicable, then why it is an- transactional immunity, the general ticipated that the prospective witness court-martial convening authority will invoke the privilege. should execute a written grant, sub- (10) An estimate as to whether the stantially in the form set forth in ap- witness is likely to testify in the event pendix section A-1-i(1) of the Manual of immunity is granted. the Judge Advocate General. In any (f) Post-testimony procedure. After a case in which a military witness is witness immunized in accordance with granted testimonial immunity, the paragraphs (c) and (d) of this section general court-martial convening au- has testified, the following information thority should execute a written grant should be provided to the United States substantially in the form set forth in Department of Justice, Criminal Divi- appendix section A-1-i(2) of the Manual sion, Immunity Unit, Washington, DC of the Judge Advocate General. 20530, via the Judge Advocate General [56 FR 57803, Nov. 14, 1991] (Code 20). (1) Name, citation, or other identify- §§ 719.113–719.114 [Reserved] ing information, of the proceeding in which the order was requested. § 719.115 Release of information per- (2) Date of the examination of the taining to accused persons; spec- witness. tators at judicial sessions. (3) Name and residence address of the (a) Release of information—(1) General. witness. There are valid reasons for making in- (4) Whether the witness invoked the formation available to the public con- privilege. cerning the administration of military (5) Whether the immunity order was justice. The task of striking a fair bal- used. ance among the protection of individ- (6) Whether the witness testified pur- uals accused of offenses, improper or suant to the order. unwarranted publicity pertaining to (7) If the witness refused to comply their cases, public understanding of the with the order, whether contempt pro- problems of controlling misconduct in ceedings were instituted, or are con- the military service, and the workings templated, and the result of the con- of military justice requires the exer- tempt proceeding, if concluded. A ver- cise of sound judgment by those re- batim transcript of the witness’ testi- sponsible for administering military mony, authenticated by the military justice and by representatives of the judge, should be provided to the Judge press and other news media. At the Advocate General at the conclusion of heart of all guidelines pertaining to the the trial. No testimony or other infor- furnishing of information concerning mation given by a civilian witness pur- an accused or the allegations against suant to such an order to testify (or him is the mandate that no statements any information directly or indirectly or other information shall be furnished derived from such testimony or other to news media for the purpose of influ- information) may be used against him encing the outcome of an accused’s in any criminal case, except a prosecu- trial, or which could reasonably be ex- tion for perjury, giving a false state- pected to have such an effect. ment, or otherwise failing to comply (2) Applicability of regulations. These with the order. regulations apply to all persons who (g) Review. Under some cir- may obtain information as the result cumstances, the officer granting im- of duties performed in connection with munity to a witness may be disquali- the processing of accused persons, the fied from taking reviewing action on investigation of suspected offenses, the the record of the trial before which the imposition of nonjudicial punishment, witness granted immunity testified. A or the trial of persons by court-mar- successor in command not participat- tial. These regulations are applicable ing in the grant of immunity would not from the time of apprehension, the
187
VerDate 25
preferral of charges, or the commence- place of apprehension, resistance, pur- ment of an investigation directed to suit, and use of weapons. make recommendations concerning (vi) The type and place of custody, if disciplinary action, until the imposi- any. tion of nonjudicial punishment, com- (vii) Information which has become a pletion of trial (court-martial sessions) part of the record of proceedings of the or disposition of the case without trial. court-martial in open session. These regulations also prescribe guide- (viii) The scheduling of any stage in lines for the release or dissemination the judicial process. of information to public news agencies, (ix) The denial by the accused of any to other public news media, or to other offense or offenses of which he may be persons or agencies for unofficial pur- accused or suspected (when release of poses. such information is approved by the (3) Release of information. (i) As a gen- counsel of the accused). eral matter, release of information per- (5) Prohibited information. The follow- taining to accused persons should not ing information concerning a person be initiated by persons in the naval accused or suspected of an offense or service. Information of this nature offenses generally may not be released, should be released only upon specific except as provided in paragraph (a)(6) request therefor, and, subject to the of this section. following guidelines, should not exceed (i) Subjective opinions, observations, the scope of the inquiry concerned. or comments concerning the accused’s (ii) Except in unusual circumstances, character, demeanor at any time (ex- information which is subject to release cept as authorized in paragraph (4)(v) under the regulation should be released of this section), or guilt of the offense by the cognizant public affairs officer; or offenses involved. requests for information received from (ii) The prior criminal record (includ- representatives of news media should ing other apprehensions, charges or be referred to the public affairs office trials) or the character or reputation of for action. When an individual is sus- the accused. pected or accused of an offense, care should be taken to indicate that the in- (iii) The existence or contents of any dividual is alleged to have committed confession, admission, statement, or or is suspected or accused of having alibi given by the accused, or the re- committed an offense, as distinguished fusal or failure of the accused to make from stating or implying that the ac- any statement. cused has committed the offense or of- (iv) The performance of any examina- fenses. tion or test, such as polygraph exami- (4) Information subject to release. On nations, chemical tests, ballistics inquiry, the following information con- tests, etc., or the refusal or the failure cerning a person accused or suspected of the accused to submit to an exam- of an offense or offenses may generally ination or test. be released except as provided in para- (v) The identity, testimony, or credi- graph (6) of this section: bility of possible witnesses, except as (i) The accused’s name, grade, age, authorized in paragraph (4)(iii), of this unit, regularly assigned duties, duty section. station, and sex. (vi) The possibility of a plea of guilty (ii) The substance of the offenses of to any offense charged or to a lesser of- which the individual is accused or sus- fense and any negotiation or any offer pected. to negotiate respecting a plea of guilty. (iii) The identity of the victim of any (vii) References to confidential alleged or suspected offense, except the sources or investigative techniques or victim of a sexual offense. procedures. (iv) The identity of the apprehending (viii) Any other matter when there is and investigative agency, and the iden- a reasonable likelihood that the dis- tity of accused’s counsel, if any. semination of such matter will affect (v) The factual circumstances imme- the deliberations of an investigative diately surrounding the apprehension body or the findings or sentence of a of the accused, including the time and court-martial or otherwise prejudice
188
VerDate 25
the due administration of military jus- Judge Advocate General, the presiding tice either before, during, or after trial. officer, upon motion of the Govern- (6) Exceptional cases. The provisions ment or the defense or upon his mo- of this section are not intended to re- tion, may direct that all or part of the strict the release of information de- hearing be held in closed session and signed to enlist public assistance in ap- that all persons not connected with the prehending an accused or suspect who hearing be excluded therefrom. The de- is a fugitive from justice or to warn the cision to exclude spectators shall be public of any danger that a fugitive ac- based on the ground that dissemination cused or suspect may present. Further, of evidence, information, or argument since the purpose of this section is to presented at the hearing may disclose prescribe generally applicable guide- matters that will be inadmissible in lines, there may be exceptional cir- evidence at a subsequent trial by cumstances which warrant the release court-martial and is therefore likely to of information prohibited under para- interfere with the right of the accused graph (a)(5) of this section or the non- to a fair trial by an impartial tribunal. release of information permitted under [38 FR 5997, Mar. 6, 1973, as amended at 47 FR paragraph (a)(4) of this section. Atten- 49644, Nov. 2, 1982; 50 FR 23800, June 6, 1985] tion should be given to the Secretary of the Navy instructions implementing the Freedom of Information Act Subpart D [Reserved] (5720.42 series) and the Privacy Act (5211.5C series). Consultation with the Subpart E—Miscellaneous Matters command judge advocate, if one is as- signed, or with the cognizant Naval § 719.138 Fees of civilian witnesses. Legal Service Office concerning inter- (a) Method of Payment. The fees and pretation and application of these in- mileage of a civilian witness shall be structions is encouraged. paid by the disbursing officer of the (b) Spectators. (1) The sessions of command of a convening authority or courts-martial shall be open to the appointing authority or by the disburs- public, which includes members of both ing officer at or near the place where the military and civilian communities. the tribunal sits or where a deposition In order to maintain the dignity and is taken when such disbursing officer is decorum of the proceedings or for other presented a properly completed public good cause, the military judge may voucher for such fees and mileage, reasonably limit the number of spec- signed by the witness and certified by tators in, and the means of access to, one of the following: the courtroom, exclude specific persons (1) Trial counsel or assistant trial from the courtroom, and close a ses- counsel of the court-martial; sion. Video and audio recording and (2) Summary court officer; taking of photographs, except for the (3) Counsel for the court in a court of purpose of preparing the record of trial, inquiry; in the courtroom during the proceed- (4) Recorder or junior member of a ings and radio or television broadcast- board to redress injuries to property, ing of proceedings from the courtroom or shall not be permitted. The military (5) Military or civil officer before judge may, as a matter of discretion, whom a deposition is taken. permit contemporaneous closed–circuit The public voucher must be accom- video or audio transmission to permit panied by a subpoena or invitational viewing or hearing by an accused re- orders (Joint Travel Regulations, vol. moved from the courtroom or by spec- 2, chap. 6), and by a certified copy of tators when courtroom facilities are the order appointing the court-martial, inadequate to accommodate a reason- court of inquiry, or investigation. If, able number of spectators. however, a deposition is taken before (2) At pretrial hearings. In any pre- charges are referred for trial, the fees liminary hearing, including a hearing and mileage of the witness concerned conducted pursuant to 10 U.S.C. 832 or shall be paid by the disbursing officer a court of inquiry or investigation con- at or near the place where the deposi- ducted pursuant to the Manual of the tion is taken upon presentation of a
189
VerDate 25
public voucher, properly completed as quest at any time during the period of hereinbefore prescribed, and accom- attendance. The disbursing officer will panied by an order from the officer who make such interim payment(s) upon re- authorized the taking of the deposi- ceipt of properly executed certifi- tion, subscribed by him and directing cate(s). Upon his discharge from at- the disbursing officer to pay to the wit- tendance, the witness will be paid, ness the fees and mileage supported by upon the execution of a certificate, a the public voucher. When the civilian final amount covering unpaid fees and witness testifies outside the United travel, including an amount for return States, its territories and possessions, travel. Payment for return travel will the public voucher must be accom- be made upon the basis of the actual panied by a certified copy of the order fees and mileage allowed for travel to appointing the court-martial, court of the court, or place designated for tak- inquiry, or investigation, and by an ing a deposition. order from the convening authority or (f) Computation. Travel expenses shall appointing authority, subscribed by be determined on the basis of the him and directing the disbursing offi- shortest usually traveled route in ac- cer to pay to the witness the fees and cordance with official schedules. Rea- mileage supported by the public vouch- sonable allowance will be made for un- er. avoidable detention. (b) Obtaining money for advance tender (g) Nontransferability of accounts. Ac- or payment. Upon written request by counts of civilian witnesses may not be one of the officers listed in paragraph transferred or assigned. (a) of this section, the disbursing offi- (h) Signatures. Signatures of wit- cer under the command of the conven- nesses signed by mark must be wit- ing or appointing authority, or the dis- nessed by two persons. bursing officer nearest the place where (i) Rates for civilian witnesses pre- the witness is found, will, at once, pro- scribed by law—(1) Civilian witnesses not vide any of the persons listed in para- in Government employ. A civilian not in graph (a) of this section, or any other Government employ, who is compelled officer or person designated for the or required to testify as a witness be- purpose, the required amount of money fore a Naval tribunal at a specified to be tendered or paid to the witness place or to appear at a place where his for mileage and fees for one day of at- deposition is to be taken for use before tendance. The person so receiving the a court or fact-finding body, will re- money for the purpose named shall fur- ceive fees, subsistence, and mileage as nish the disbursing officer concerned provided in 28 U.S.C. 1821. Witness and with a proper receipt. subsistence fees are not prorated. In- (c) Reimbursement. If an officer stead any fractional part of a calendar charged with serving a subpoena pays day expended in attendance or qualify- from his personal funds the necessary ing for subsistence entitles the witness fees and mileage to a witness, taking a to payment for a full day. Further, receipt therefor, he is entitled to reim- nothing in this paragraph shall be con- bursement upon submitting to the dis- strued as authorizing the payment of bursing officer such receipt, together attendance fees to witnesses for: with a certificate of the appropriate (i) Attendance or travel which is not person named in paragraph (a) of this performed either as a direct result of section, to the effect that the payment being compelled to testify pursuant to was necessary. a subpoena or as a direct result of invi- (d) Certificate of person before whom tational orders; or deposition is taken. The certificate of (ii) For travel which is performed the person named in paragraph (a) of prior to being duly summoned as a wit- this section, before whom the witness ness; or gave his deposition, will be evidence of (iii) For travel returning to their the fact and period of attendance of the places of residence if the travel from witness and the place from which sum- their places of residence does not qual- moned. ify for payment under this paragraph. (e) Payment of accrued fees. The wit- (2) Civilian witnesses in Government ness may be paid accrued fees at his re- employ. When summoned as a witness, a
190
VerDate 25
civilian in the employ of the Govern- certified copy of the authorization of ment shall be paid as authorized by the convening authority. Joint Travel Regulations. (l) Payment of witness fees to foreign (j) Supplemental construction of sec- nationals: Officers exercising general tion. Nothing in this paragraph shall be court-martial jurisdiction in areas construed as permitting or requiring other than a State of the United States the payment of fees to those witnesses shall establish rates of compensation not requested or whose testimony is for payment of foreign nationals who determined not to meet the standards testify as witnesses, including expert of relevancy and materiality set forth witnesses, at courts-martial convened in accordance with MCM, 1984, R.C.M. in such areas. 703. [38 FR 5997, Mar 6, 1973, as amended at 47 FR (k) Expert witnesses (1) The convening 49644, Nov. 2, 1982; 50 FR 23801, June 6, 1985] authority will authorize the employ- ment of an expert witness and will fix §§ 719.139–719.141 [Reserved] the limit of compensation to be paid such expert on the basis of the normal § 719.142 Suspension of counsel. compensation paid by United States at- (a) Report of Allegations of Misconduct torneys for attendance of a witness of or Disability. When information comes such standing in United States courts to the attention of a member of a in the area involved. Information con- court-martial, a military judge, trial cerning such normal compensation or defense counsel, staff judge advo- may be obtained from the nearest offi- cate, member of the Navy-Marine cer exercising general court–martial Corps Court of Military Review or jurisdiction having a judge advocate other directly interested or concerned assigned in other than an additional party that a judge advocate or civilian duty, temporary duty, or temporary who is acting or is about to act as additional duty capacity. Convening counsel before a proceeding conducted authorities at overseas commands will under the UCMJ or MCM is or has been adhere to fees paid such witnesses in unable to discharge properly all the du- the Hawaiian area and may obtain in- ties of his or her position by reason of formation as to the limit of such fees mental or physical disability or has from the Commander, Naval Base, been engaged in professional or per- Pearl Harbor. See paragraph (l) of this sonal misconduct of such a serious na- section for fees payable to foreign na- ture as to demonstrate that he or she is tionals. lacking in integrity or is failing to (2) The provisions of paragraph (i) of meet the ethical standards of the pro- this section are applicable to expert fession or is otherwise unworthy or un- witnesses. However, the expert witness qualified to perform the duties of a fee prescribed by the convening author- judge advocate or attorney, such infor- ity will be paid in lieu of ordinary at- mation should be reported to the com- tendance fees on those days the witness manding officer of that judge advocate is required to attend the court. or, in the case of civilian counsel, to (3) An expert witness employed in the officer exercising general court- strict accordance with MCM, 1984, martial jurisdiction over the command R.C.M. 703(d), may be paid compensa- convening the proceedings or to the tion at the rate prescribed in advance Judge Advocate General. by the official empowered to authorize (b) Form of Report. The report shall: his employment (11 Comp. Gen. 504). In (1) Be in writing, under oath or affir- the absence of such authorization, no mation, and made and signed by the in- fees other than ordinary witness fees dividual reporting the information. may be paid for the employment of an (2) State that the individual report- individual as an expert witness. After ing the information has personal an expert witness has testified pursu- knowledge or belief or has otherwise ant to such employment, the certifi- received reliable information indicat- cate of one of the officers listed in sub- ing that: section a above, when presented to the (i) The counsel is, or has been, unable disbursing officer, shall also enclose a to discharge properly all the duties of
191
VerDate 25
his or her office by reason of mental or the officer exercising general court- physical disability; or martial convening authority: (ii) The counsel is or has been en- (A) May take the action authorized gaged in professional or personal mis- by subsections (c)(1)(i), (ii) or (iii); or conduct of such a serious nature as to (B) Shall, if he or she considers that demonstrate that he or she is lacking evidence of disability or professional or in integrity or is failing to meet the personal misconduct exists and that ethical standards of the profession; or other remedial measures short of sus- (iii) The counsel is unworthy or un- pension or decertification are not ap- qualified to perform his or her duties; propriate or will not be effective, ap- (3) Set forth the grounds of the alle- point a board of officers to investigate gation together with all relevant facts; the matter and to report its findings and and its recommendations. This board (4) Be forwarded to the appropriate authority as set forth in paragraph (a). shall be comprised of at least three of- (c) Consideration of the Report—(1) Ac- ficers, each an Article 27(b), Uniform tion by the Commanding Officer of a Code of Military Justice, certified judge advocate. Upon receipt of the re- judge advocate. If practicable, each of port, the commanding officer: the officers of the board should be sen- (i) Shall dismiss any report relating ior to the judge advocate under inves- to the performance of a judge advocate tigation. If the counsel is a member of more properly appealed under law or the Marine Corps, a majority of the any report that is frivolous, unfounded, members of the board should be Marine or vague and return it to the reporting Corps judge advocates. The senior offi- individual; cer of the board shall cause notice to (ii) May make further inquiry into be given to the counsel, judge advocate the report at his or her discretion to or civilian (respondent), informing him determine the merits of the report. The or her of the misconduct or other dis- commanding officer may appoint an of- qualification alleged and affording him ficer to investigate informally the alle- or her the opportunity to appear before gations of the report to determine the board for a hearing. The respondent whether further action is warranted. shall be permitted at least ten (10) Any officer so appointed should be a days’ notice prior to the hearing. Fail- judge advocate senior in rank to the ure to appear on a set date after notice judge advocate being investigated; shall constitute waiver of appearance, (iii) May take appropriate action to absent good cause shown. The respond- address and dispose of the matter being ent shall be generally afforded the mindful of such measures as warning, rights of a party as set out in section counseling, caution, instruction, pro- 0304 of this Manual, except that, in the ceedings in contempt, therapy, and event the judge advocate respondent other punitive or administrative ac- wishes to have military counsel ap- tion; or pointed, he or she shall not have the (iv) Shall, if the commanding officer right to select or identify a particular is of the opinion that evidence of dis- military counsel. A civilian respondent ability or professional or personal mis- conduct exists, and that remedial may not be represented by military measures short of suspension or decer- counsel, but may be represented by ci- tification are not appropriate or will vilian counsel at no expense to the not be effective, forward the original Government. Upon ascertaining the complaint, a written report of the in- relevant facts after notice and hearing, quiry or investigation, all other rel- a written report of the findings and evant information, and his or her com- recommendations of the board shall be ments and recommendations to the of- made to the officer who convened the ficer in the chain of command exercis- board. In all cases, a written copy of ing general court-martial authority. the board’s findings and recommenda- (2) Action by Officer Exercising General tions shall be provided to the respond- Court-Martial Authority. (i) Upon re- ent. The respondent shall be given an ceipt of a report of an allegation of opportunity to comment on the report misconduct or disability of a counsel, in writing.
192
VerDate 25
(ii) Upon receipt of the report of the fice by reason of mental or physical board of investigation, the officer exer- disability or has been engaged in pro- cising general court-martial authority fessional or personal misconduct of shall: such a serious nature as to dem- (A) Return the report to the board for onstrate that he or she is lacking in in- further investigation, if the investiga- tegrity or is failing to meet the ethical tion is determined to be incomplete; or standards of the profession or is other- (B) Forward the report of the board wise unworthy or unqualified to per- of investigation to the Judge Advocate form the duties of a counsel Action to General together with comments and suspend or decertify should not be ini- recommendations concerning suspen- tiated because of personal prejudice or sion of the counsel involved. hostility toward counsel, nor should (3) Action by the Judge Advocate Gen- such action be initiated because coun- eral. (i) Upon receipt of a report of an sel has initiated an aggressive, zealous allegation of misconduct or disability or novel defense, or the apparent mis- of a counsel, the Judge Advocate Gen- conduct stems from inexperience or eral: lack of instruction. (A) May take the action authorized (2) Specific grounds for suspension or by subsections (c)(1)(i), (ii), or (iii); decertification include, but are not (B) May appoint a board of officers limited to, the following: for investigation and hearing in ac- (i) Demonstrated incompetence while cordance with subsections (c)(2)(i)(B) acting as counsel before, during or or after a court-martial. (C) May request the officer exercising (ii) Preventing or obstructing justice, general court-martial jurisdiction over including the deliberate use of frivo- the command of the respondent (if lous or unwarranted dilatory tactics. judge advocate counsel) or over the (iii) Fabricating papers or other evi- proceedings (if civilian counsel) to take dence. the matter for investigation and hear- (iv) Tampering with a witness. ing in accordance with subsection (v) Abusive conduct toward the (c)(2)(i)(B). court-martial, the Navy-Marine Corps (ii) Upon receipt of the report of the Court of Military Review, the military investigating board, the Judge Advo- judge, or opposing counsel. cate General: (vi) Flagrant or repeated violations (A) May determine whether the re- of any specific rules of conduct pre- spondent is to be suspended or decerti- scribed for counsel in the Manual for fied and, if so, whether for a stated Courts-Martial. term or indefinitely; (vii) Conviction of an offense involv- (B) May determine that the findings ing moral turpitude or conviction for of the board do not warrant further ac- violation of article 48, UCMJ. tion; or (viii) Disbarment by a State Bar, (C) May return the report to the Federal Court, or the United States sending officer with appropriate in- Court of Military Appeals. structions for further inquiry or ac- (ix) Suspension as counsel by the tion. The Judge Advocate General may, Judge Advocate General of the Navy, sua sponte, or upon petition of the re- Army, or Air Force or the General spondent, modify or revoke any prior Counsel of the Department of Trans- order of suspension or dismissal of a re- portation. port. Further, if the Judge Advocate (x) Flagrant or repeated violations of General suspends counsel, the Judge the Uniform Rules of Practice Before Advocates General of the other armed Navy-Marine Corps Courts-Martial as forces will be notified. outlined in appendix A–1-p(1) of the (d) Grounds justifying suspension of Manual of the Judge Advocate General. counsel or suspension or decertification of (xi) Flagrant or repeated violations a Judge Advocate. (1) Suspension or de- of the provisions of section 0134 of this certification is to be employed only Manual of the Judge Advocate General after it has been established that a dealing with the Release of Information counsel has been unable to discharge Pertaining to Accused Persons; Spectators properly all the duties of his or her of- at Judicial Sessions.
193
VerDate 25
(xii) Failure to meet the rules set or affirmation by the accused, by a per- forth in the ABA Code of Professional son possessing the power of attorney of Responsibility and the ABA Standards the accused for that purpose, or by a on Fair Trial and Free Press and The person with the authorization of an ap- Prosecution Function and the Defense propriate court to sign the petition as Function. In view of the unique mission the representative of the accused. The and personal requirements of the mili- petition shall contain the following in- tary, many of the rules and principles formation, or an explanation why such of the ABA Code or Standards are not matters are not included: applicable to the military lawyer. Ac- (1) The name, service number, and cordingly, the rules are to be used as a current address of the accused; guide only, and a failure to comply (2) The date and location of the trial; with the specific wording of a rule is (3) The type of court-martial and the not to be construed as a violation of title or position of the convening au- the rule where common sense would in- thority; dicate to a reasonable person that (4) The request for the new trial; there is a distinction between the civil- (5) The sentence or a description ian context, which the codes were thereof as approved or affirmed, with drafted to embrace, and the unique any later reduction thereof by clem- concerns of the military setting, where the codes serve as a general guide. ency or otherwise, (6) A brief description of any finding [50 FR 23801, June 6, 1985] or sentence believed to be unjust; (7) A full statement of the newly dis- § 719.143 Petition for new trial under 10 U.S.C. 873. covered evidence or fraud on the court- martial which is relied upon for the (a) Statutory provisions. 10 U.S.C. 873, remedy sought; provides, ‘‘At any time within 2 years (8) Affidavits pertinent to the mat- after approval by the convening au- ters in subsection (6)i; and thority of a court-martial sentence, (9) Affidavit of each person whom the the accused may petition the Judge accused expects to present as a witness Advocate General for a new trial on the in the event of a new trial. Each affida- grounds of newly discovered evidence vit should set forth briefly the relevant or fraud on the court. If the accused’s facts within the personal knowledge of case is pending before a Court of Mili- tary Review or before the Court of the witness. Military Appeals, that Judge Advocate (d) Who may act on petition. If the General shall refer the petition to the accused’s case is pending before a appropriate court for action. Otherwise Court of Military Review or the Court the Judge Advocate General shall act of Military Appeals, the Judge Advo- upon the petition.’’ cate General shall refer the petition to (b) Submission Procedures: At any the appropriate court for action. Other- time within 2 years after approval by wise, the Judge Advocate shall act on the convening authority of a court- the petition. martial sentence, the accused may pe- (e) Ground for New Trial. A new trial tition the Judge Advocate General for may be granted only on grounds of a new trial on the ground of newly dis- newly discovered evidence or fraud on covered evidence or fraud on the court- the court-martial. martial. The petition for new trial may (1) A new trial shall not be granted be submitted by the accused person- on the grounds of newly discovered evi- ally, or by accused’s counsel, regard- dence unless the petition shows that; less of whether the accused has been (i) The evidence was discovered after separated from the service. A petition the trial, may not be submitted after the death (ii) The evidence is not such that it of the accused. would have been discovered by the peti- (c) Contents of petitions: The form and tioner at the time of trial in the exer- contents of petitions for new trial are cise of due diligence; and specified in MCM, 1984, R.C.M. 1210(c). (iii) The newly discovered evidence, if The petition for a new trial shall be considered by a court-martial in the written and shall be signed under oath light of all other pertinent evidence,
194
VerDate 25
would probably produce a substantially of the Judge Advocate General by the more favorable result for the accused. accused on or before the last day of the (2) No fraud on the court-martial two-year period beginning on the date warrants a new trial unless it had a the sentence is approved under section substantial contributing effect on a 860(c) of this title (article 60(c)), unless finding of guilty or the sentence ad- the accused establishes good cause for judged. failure to file within that time.’’ (f) Action on the petition. (1) The au- (b) Time Limitations. In order to be thority considering the petition may considered by the Judge Advocate Gen- cause such additional investigation to eral, an application for relief must be be made and such additional informa- placed in military channels if the ap- tion to be secured as that authority be- plicant is on active duty, or be depos- lieves appropriate. Upon written re- ited in the mail if the applicant is no quest, and in his discretion, the au- longer on active duty, on or before the thority considering the petition may last day of the two-year period begin- permit oral argument on the matter. ning on the date the sentence is ap- (2) When a petition is considered by proved by the convening authority. An the Judge Advocate General, any hear- application not filed in compliance ing may be before the Judge Advocate with these time limits may be consid- General or before an officer or officers ered if the Judge Advocate General de- designated by the Judge Advocate Gen- termines, in his or her sole discretion, eral. (3) If the Judge Advocate General be- that ‘‘good cause’’ for failure to file lieves meritorious grounds for relief within the time limits has been estab- under Article 74, Uniform Code of Mili- lished by the applicant. tary Justice have been established but (c) Submission procedures. Applica- that a new trial is not appropriate, the tions for relief may be submitted to the Judge Advocate General may act under Judge Advocate General by letter. If article 74, Uniform Code of Military the accused is on active duty, the ap- Justice, if authorized, or transmit the plication shall be submitted via the ap- petition and related papers to the Sec- plicant’s commanding officer, and the retary concerned with a recommenda- command that convened the court, and tion. the command that reviewed the case (4) The Judge Advocate may also, in under 10 U.S.C. 864(a) or (b). If the cases which have been finally reviewed original record of trail is held by the but have not been reviewed by a Court command that reviewed the case under of Military Review, act under article 10 U.S.C. 864(a) or (b), it shall be for- 69, Uniform Code of Military Justice. warded as a enclosure to the endorse- ment. If the original record of trial has [50 FR 23803, June 6, 1985] been filed in the National Personnel § 719.144 Application for relief under Records Center, the endorsement will 10 U.S.C. 869, in cases which have include all necessary retrieval data been finally reviewed. (accession number, box number, and (a) Statutory provisions. 10 U.S.C. 869 shelf location) obtained from the re- provides in pertinent part, ‘‘The find- ceipt returned from the National Per- ings or sentence, or both, in a court- sonnel Records Center to the sending martial case not reviewed under sub- activity. This endorsement shall also section (a) or under section 866 of this include information and specific com- title (article 66) may be modified or set ment on the grounds for relief asserted aside, in whole or in part, by the Judge in the application, and an opinion on Advocate General on the ground of the merits of the application. If the ap- newly discovered evidence, fraud on the plicant is no longer on active duty, the court, lack of jurisdiction over the ac- application may be submitted directly cused or the offense, error prejudicial to the Judge Advocate General. to the substantial rights of the ac- (d) Contents of applications. All appli- cused, or the appropriateness of the cations for relief shall contain: sentence. If such a case is considered (1) Full name of the applicant; upon application of the accused, the (2) Social Security number and application must be filed in the Office branch of service, if any;
195
VerDate 25
(3) Present grade if on active duty or cant’s spouse, next of kin, executor, retired, or ‘‘civilian’’ or ‘‘deceased’’ as guardian or other person with a proper applicable; interest in the matter. In this regard, (4) Address at time the application is one is considered incapable of making forwarded; application for purposes of this section (5) Date of trial; when unable to sign the application (6) Place of trial; under oath due to physical or mental (7) Command title of the organization incapacity. at which the court-martial was con- vened (convening authority); [50 FR 23804, June 6, 1985] (8) Command title of the officer exer- §§ 719.145–719.150 [Reserved] cising review authority in accordance with 10 U.S.C. 864 over the applicant at § 719.151 Furnishing of advice and the time of trial, if applicable; counsel to accused placed in pre- (9) Type of court-martial which con- trial confinement. victed the applicant, and sentence ad- The Department of the Navy Correc- judged; tions Manual, SECNAVINST 1640.9, re- (10) General grounds for relief which iterates the requirement of Article 10, must be one or more of the following: UCMJ, that, when a person is placed in (i) Newly discovered evidence; pretrial confinement, immediate steps (ii) Fraud on the court; should be taken to inform the confinee (iii) Lack of jurisdiction over the ac- of the specific wrong of which he is ac- cused or the offense; cused and try him or to dismiss the (iv) Error prejudicial to the substan- charges and release him. The Correc- tial rights of the accused; tions Manual requires that this infor- (v) Appropriateness of the sentence; mation normally will be provided with- (11) An elaboration of the specific in 48 hours along with advice as to the prejudice resulting from any error confinee’s right to consult with lawyer cited. (Legal authorities to support the counsel and his right to prepare for applicant’s contentions may be in- trial. Lawyer counsel may be either a cluded, and the format used may take civilian lawyer provided by the the form of a legal brief if the appli- confinee at his own expense or a mili- cant so desires.); tary lawyer provided by the Govern- (12) Any other matter which the ap- ment. If a confinee requests to confer plicant desires to submit; with a military lawyer, such lawyer (13) Relief requested; and should normally be made available for (14) Facts and circumstances to es- consultation within 48 hours after the tablish ‘‘good cause’’ for a failure to request is made. file the application within the time limits prescribed in paragraph (b) of [39 FR 18437, May 28, 1974] this section, if applicable; and (15) If the application is signed by a § 719.155 Application under 10 U.S.C. person other than the applicant pursu- 874(b) for the substitution of an ad- ant to subsection e, an explanation of ministrative form of discharge for a the circumstances rendering the appli- punitive discharge or dismissal. cant incapable of making application. (a) Statutory provisions. 10 U.S.C. The applicant’s copy of the record of 874(b) provides that the ‘‘Secretary trial will not be forwarded with the ap- concerned may, for good cause, sub- plication for relief, unless specifically stitute an administrative form of dis- requested by the Judge Advocate Gen- charge for a discharge or dismissal exe- eral. cuted in accordance with the sentence (e) Signatures on applications. Unless of a court-martial.’’ incapable of making application, the (b) Submission procedures. Applica- applicant shall personally sign the ap- tions for relief will be submitted to the plication under oath before an official Secretary using the following address: authorized to administer oaths. If the Secretary of the Navy (Judge Advocate applicant is incapable of making appli- General, Code 20), 200 Stovall Street, cation, the application may be signed Alexandria, VA 22332–2400. Except in under oath and submitted by the appli- unusual circumstances, applications
196
VerDate 25
will not normally be considered if re- the applicant, and must include the ad- ceived within five (5) years of the exe- dress of the affiant as well as specific cution of the punitive discharge or dis- reasons why the affiant believes the ap- missal, or within five (5) years of dis- plicant to be of good character. The af- approval of a prior request under 10 fidavits should discuss the applicant’s U.S.C. 874(b). character primarily as reflected in the (c) Contents of the application. All ap- civilian community subsequent to the plications shall contain: punitive discharge or dismissal which (1) Full name of the applicant; is the subject of the application); (2) Social Security Number, service (16) Any matters, other than the number (if different), and branch of character affidavits, supporting the service of the applicant; considerations described in subpara- (3) Present age and date of birth of graph (18) below; the applicant; (17) Any other relief sought within (4) Present residence of the applicant; (5) Date and place of the trial, and the Department of the Navy and out- type of court-martial which resulted in side the Department of the Navy in- the punitive discharge or dismissal; cluding dates of application and final (6) Command title of the convening dispositions; authority of the court-martial which (18) A statement by the applicant, resulted in the punitive discharge or setting forth the specific consider- dismissal; ations which the applicant believes (7) Offense(s) of which the applicant constitute ‘‘good cause,’’ so as to war- was convicted, and sentence finally ap- rant the substitution of an administra- proved from the trial which resulted in tive form of discharge for the punitive the punitive discharge or dismissal; discharge or dismissal previously exe- (8) Date the punitive discharge or dis- cuted. (In this connection, 10 U.S.C. missal was executed; 874(b) does not provide another regular (9) Applicant’s present marital sta- or extraordinary procedure for the re- tus, and number and ages of depend- view of a court-martial. Questions of ents, if any; guilt or innocence, or legal issues at- (10) Applicant’s civilian criminal tendant to the court-martial which re- record (arrest(s) with disposition, and sulted in the punitive discharge or dis- conviction(s)), both prior and subse- missal, are neither relevant nor appro- quent to the court-martial which re- priate for consideration under 10 U.S.C. sulted in the punitive discharge or dis- 874(b). As used in the statute, ‘‘good missal; cause’’ was envisioned by Congress to (11) Applicant’s entire court-martial encompass only Secretarial exercise of record (offense(s) of which convicted clemency and ultimate control of sen- and finally approved sentence(s)), and tence uniformity. Accordingly, in de- nonjudicial punishment record (includ- termining what constitutes ‘‘good ing offense(s) and punishment(s) award- cause’’ under 10 U.S.C. 874(b), the pri- ed); mary Secretarial concern will be with (12) Any military administrative dis- charge proceedings (circumstances and the applicant’s record in the civilian disposition) initiated against the appli- community subsequent to his or her cant; punitive separation. Material submit- (13) Applicant’s full employment ted by the 10 U.S.C. 874(b) applicant record since the punitive discharge or should be consistent with the fore- dismissal was executed; going.) (14) The specific type and character (d) Signature on application. Unless in- of administrative discharge requested capable of making application himself pursuant to 10 U.S.C. 874(b) (a more fa- or herself, the applicant shall person- vorable administrative discharge than ally sign the application, under oath, that requested will not be approved); before a notary or other official au- (15) At least three but not more than thorized to administer oaths. If the ap- six character affidavits, (The character plicant is incapable of executing the affidavits must be notarized, must indi- application, the application may be cate the relationship of the affiant to signed under oath and submitted by
197
VerDate 25
the applicant’s spouse, next of kin, ex- Subpart B—Service of Process and ecutor, guardian and other person rec- Subpoenas Upon Personnel ognized as a personal representative by the law of the applicant’s domicile. 720.20 Service of process upon personnel. 720.21 Members or civilian employees sub- One is considered incapable of execut- poenaed as witnesses in State courts. ing an application for purposes of this 720.22 Members or civilian employees sub- paragraph only when the applicant is poenaed as witnesses in federal courts. unable to sign the application under 720.23 Naval prisoners as witnesses or par- oath due to physical or mental inca- ties in civilian courts. pacity. When an application is signed 720.24 Interviews and depositions in connec- by a person other than the applicant, tion with civil litigation in matters per- the circumstances rendering the appli- taining to official duties. cant incapable of making sworn appli- 720.25 Repossession of personal property. cation shall be set forth in the applica- 720.26–720.29 [Reserved] tion, with appropriate documentation. Subpart C—Production of Official Records (e) Privacy Act Statement. Disclosure of personal information requested by 720.30 Production of official records in re- paragraph (c) of this section is vol- sponse to court order. untary; however, failure to accurately 720.31 Production of official records in the provide all requested information may absence of court order. result in the application being denied 720.32 Certificates of full faith and credit. because of inadequate documentation Subpart D—Compliance With Court Orders of good cause. by Department of the Navy Members, [47 FR 49645, Nov. 2, 1982, as amended at 50 Employees, and Family Members Out- FR 23804, June 6, 1985] side the United States 720.40 Purpose. PART 720—DELIVERY OF PERSON- 720.41 Definitions. NEL; SERVICE OF PROCESS AND 720.42 Policy. SUBPOENAS; PRODUCTION OF 720.43 Points of contact. OFFICIAL RECORDS 720.44 Responsible officials. 720.45 Procedures. Subpart A—Delivery of Personnel 720.46 Overseas screening programs. 720.47 Report. Sec. AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031 and 720.1 Delivery of persons requested by state 5148; 32 CFR 700.206 and 700.1202. authorities in criminal cases. 720.2 Delivery when persons are within ter- ritorial limits of the requesting State. Subpart A—Delivery of Personnel 720.3 Delivery when persons are beyond ter- ritorial limits of the requesting State. 720.4 Persons stationed outside the United SOURCE: 57 FR 5228, Feb. 13, 1992, unless States. otherwise noted. 720.5 Authority of the Judge Advocate Gen- eral and the General Counsel. § 720.1 Delivery of persons requested 720.6 Agreement required prior to delivery by State authorities in criminal to State authorities. cases. 720.7 Delivery of persons to federal authori- Subpart A of this part deals with re- ties. quests by State authorities for the sur- 720.8 Delivery of persons to foreign authori- ties. render of members or civilians pursu- 720.9 Circumstances in which delivery is re- ant to arrest warrants or similar proc- fused. ess, generally in connection with a 720.10 Members released by civil authorities criminal prosecution. Responding to on bail or on their own recognizance. such requests by a State for delivery of 720.11 Interviewing servicemembers or civil- members or civilian employees in- ian employees by federal civilian inves- volves balancing the Federal interest tigative agencies. in preserving sovereign immunity and 720.12 Request for delivery of members serv- ing sentence of court-martial. the productivity, peace, good order, 720.13 Request for delivery of members serv- and discipline of the installation ing sentence of a state court. against the right of the State to exer- 720.14–720.19 [Reserved] cise its jurisdiction. Additionally, by
198
VerDate 25
regulation, naval and Marine authori- directed to leave a classified area. All ties are limited in the extent to which should be done with minimum inter- they can directly assist such an act. ference to good order and discipline. Commands should respond to such re- quests as set out below, generally using § 720.3 Delivery when persons are be- the minimum authority necessary to yond territorial limits of the re- preserve the Federal interests without questing State. unduly restricting State jurisdiction. (a) General. When State civil authori- ties request delivery of any member of § 720.2 Delivery when persons are the Navy or Marine Corps for an al- within the territorial limits of the leged crime or offense punishable under requesting State. the law of the jurisdiction making the When the delivery of any member or request, and such member is not at- civilian is requested by local civil au- tached to a Navy or Marine Corps ac- thorities of a State for an offense pun- tivity within the requesting State or a ishable under the laws of that jurisdic- ship within the territorial waters tion, and such person is located at a thereof, the following action will be Navy or Marine Corps installation taken. Any officer exercising general within the requesting jurisdiction, or court-martial jurisdiction, or officer aboard a ship within the territorial wa- designated by him, or any commanding ters of such jurisdiction, commanding officer, after consultation with a judge officers are authorized to and normally advocate of the Navy or Marine Corps, will deliver such person when a proper is authorized (upon compliance with warrant is issued. In the case of a the provisions of this section and member, delivery will only be effected § 720.6, and subject to the exceptions in upon compliance with § 720.6, subject to § 720.9) to deliver such member to make the exceptions in § 720.9. A judge advo- the member amenable to prosecution. cate of the Navy or Marine Corps The member may be delivered upon should be consulted before delivery is formal or informal waiver of extra- effected. The rule discussed above ap- dition in accordance with § 720.3(b), or plies equally to civilian employees and upon presentation of a fugitive war- civilian contractors and their employ- rant, in which case the procedures of ees when located on a Navy or Marine § 720.3(c) apply. The rule discussed Corps installation, except that compli- above applies equally to civilian em- ance with § 720.6 and consideration of ployees and civilian contractors and § 720.9 are not required (for purposes of their employees when located on a De- this part, ‘‘State’’ includes the District partment of the Navy installation not of Columbia, territories, common- within the requesting State, except wealths, and all possessions or protec- that compliance with § 720.6 and consid- torates of the United States). Com- eration of § 720.9 are not required. mands should normally not become ac- (b) Waiver of extradition. (1) Any tively involved in civilian law enforce- member may waive formal extradition. ment. When a command has deter- A waiver must be in writing and be mined that a person is to be delivered witnessed. It must include a statement in response to a valid warrant, the fol- that the member signing it has re- lowing guidance should be considered. ceived counsel of either a military or If the person to be delivered is a mili- civilian attorney prior to executing the tary member, the member may be or- waiver, and it must further set forth dered to report to a location designated the name and address of the attorney by the commanding officer and surren- consulted. dered to civil authorities under Article (2) In every case where there is any 14, UCMJ (10 U.S.C. 814). If the person doubt as to the voluntary nature of a to be delivered is a civilian, the person waiver, such doubt shall be resolved may be invited to report to the des- against its use and all persons con- ignated space for delivery. If the civil- cerned will be advised to comply with ian refuses, the civilian authorities the procedures set forth in § 720.3(c). may be escorted to a place where the (3) Executed copies of all waivers will civilian is located in order that deliv- be mailed to the Judge Advocate Gen- ery may be effected. A civilian may be eral immediately after their execution.
199
VerDate 25
(4) When a member declines to waive (d) Members stationed outside the extradition, the nearest Naval Legal United States. When the member sought Service Office or Marine Corps staff by State authorities is not located judge advocate shall be informed and within the United States, see § 720.4. shall confer with the civil authorities as appropriate. The member concerned § 720.4 Persons stationed outside the shall not be transferred or ordered out United States. of the State in which he is then located (a) Persons desired by local U.S. au- without the permission of the Sec- thorities. When delivery of any member retary of the Navy (Judge Advocate in the Navy or Marine Corps, or any ci- General), unless a fugitive warrant is vilian employee or dependent, is de- obtained as set forth in § 720.3(c). sired for trial by state authorities and (c) Fugitive warrants. (1) A fugitive the individual whose presence is sought warrant, as used in this chapter, is a is stationed outside the United States, warrant issued by a State court of the provisions of subpart D of this part competent jurisdiction for the arrest of will be followed. In all such cases, the a member. Normally, a State request- nearest judge advocate of the Navy or ing delivery of a member from another Marine Corps shall be consulted before State will issue a fugitive warrant to any action is taken. the State where the member is then lo- (b) Members desired by U.S. Federal au- cated. thorities. When delivery of any member (2) Upon issuance of a fugitive war- of the Navy or Marine Corps is desired rant by the requesting State to the State in which the member is located, for trial in a Federal district court, the latter State will normally request upon appropriate representation by the delivery of the member to local State Department of Justice to the Secretary authorities. Delivery to local State au- of the Navy (Judge Advocate General), thorities should be arranged by Navy the member will be returned to the or Marine Corps officers designated in United States at the expense of the De- § 720.3(a), upon compliance with the partment of the Navy and held at a provisions of § 720.6, and subject to the military facility convenient to the De- conditions of §§ 720.9 and 720.3(c) (3) and partment of the Navy and to the De- (4). partment of Justice. Delivery may be (3) Upon receipt of a request for de- accomplished as set forth in § 720.7, sub- livery of a member under fugitive war- ject to the exceptions in § 720.9. rant to State authorities, if the mem- ber voluntarily waives extradition, the § 720.5 Authority of the Judge Advo- cate General and the General Coun- provisions of § 720.3(b) apply. If the sel. member is delivered to local authori- ties but refuses to waive extradition in (a) Authority of the Judge Advocate the courts of the State in which he is General. The Judge Advocate General, located. the Deputy Judge Advocate General, (4) No delivery of a member by Navy and the Assistant Judge Advocates or Marine Corps officers pursuant to a General are authorized to act for the fugitive warrant or waiver of extra- Secretary of the Navy in performance dition shall be effected without com- of functions under this chapter. pletion of the agreement required by (b) Authority of the General Counsel. § 720.6 and execution of such agreement The authority of the General Counsel either: of the Navy is prescribed by Navy Reg- (i) By authorities of both the request- ulation (32 CFR 700.203 (a) and (g)) and ing State and the State in which the by appropriate departmental directives member is located, or and instructions (e.g., SECNAVINST (ii) By authorities of the State in 5430.25D).1 The principal areas of re- which the member is located if such sponsibility of the Office of the General authorities, on behalf of the requesting State, accept the full responsibility for 1 Copies may be obtained if needed, from returning the number to a command the Commanding Officer, Naval Publication designated by the Department of the and Forms Center, 5801 Tabor Avenue, Phila- Navy. delphia, PA 19120.
200
VerDate 25
Counsel (OGC) are commerical law, in- naval or Marine Corps activity as set cluding maritime contract matters; ci- forth in the agreement; vilian employee law; real property law; (2) The member is provided cash to and Freedom of Information Act and cover incidental expenses en route Privacy Act matters as delineated in 32 thereto; and CFR part 701. The Office of the General (3) The Department of the Navy is so Counsel shares responsibility with the informed. Judge Advocate General for environ- As soon as practicable, a copy of the mental law cases. delivery agreement shall be forwarded (c) Points of contact. Commanding of- to the Judge Advocate General. ficers are advised to contact their local (b) Delivery under Interstate Agreement area judge advocates for assistance in on Detainers Act. Special forms are used referring matters to the appropriate of- when delivering prisoners under the fice of the Judge Advocate General or Interstate Agreement on Detainers General Counsel. Act. The Act is infrequently used and (d) Coordination with the Commandant most requests are pursuant to Article of the Marine Corps. Marine Corps com- 14, UCMJ. See § 720.12 for a detailed dis- mands shall inform the Commandant of cussion of the Detainers Act. the Marine Corps (CMC) of all matters § 720.7 Delivery of persons to Federal referred to the Judge Advocate General authorities. or the Office of General Counsel. Copies of all correspondence and documents (a) Authority to deliver. When Federal shall also be provided to CMC. The law enforcement authorities display Staff Judge Advocate to the Com- proper credentials and Federal war- mandant (CMC (JAR)) shall be advised rants for the arrest of members, civil- of all matters referred to the Judge Ad- ian employees, civilian contractors and vocate General. Counsel to the Com- their employees, or dependents resid- mandant shall be advised of matters re- ing at or located on a Department of ferred to the Office of General Counsel. the Navy installation, commanding of- ficers are authorized to and should § 720.6 Agreement required prior to allow the arrest of the individual delivery to State authorities. sought. The exceptions in § 720.9 may be applied to members. A judge advocate (a) Delivery under Article 14, UCMJ. of the Navy or Marine Corps should be When delivery of any member of the consulted before delivery is effected. Navy or Marine Corps to the civilian (b) Agreement not required of Federal authorities of a State is authorized, authorities. The agreement described in the member’s commanding officer § 720.6 is not a condition to the delivery shall, before making such delivery, ob- of members to Federal law enforce- tain from the Governor or other duly ment authorities. Regardless of wheth- authorized officer of such State a writ- er the member is convicted or acquit- ten agreement. The State official com- ted, after final disposition of the case, pleting the agreement must show that the member will be returned to the he is authorized to bind the State to Naval Service (provided that naval au- the terms of the agreement. When indi- thorities desire his return) and the nec- cating in the agreement the naval or essary expenses will be paid from an Marine Corps activity to which the appropriation under the control of the member delivered is to be returned by Department of Justice. the State, care should be taken to des- ignate the closest appropriate activity § 720.8 Delivery of persons to foreign (to the command to which the member authorities. is attached) that possesses special Except when provided by agreement court-martial jurisdiction. The Depart- between the United States and the for- ment of the Navy considers this agree- eign government concerned, command- ment substantially complied with ing officers are not authorized to de- when: liver members or civilian employees of (1) The member is furnished transpor- the Department of the Navy, or their tation (under escort in cases of deliv- dependents residing at or located on a ery in accordance with § 720.12) to a naval or Marine Corps installation, to
201
VerDate 25
foreign authorities. When a request for State authorities and returns to his delivery of these persons is received in ship or station on bail, or on his own a country with which the United States recognizance, the commanding officer, has no agreement or when the com- upon verification of the attesting facts, manding officer is in doubt, advice date of trial, and approximate length of should be sought from the Judge Advo- time that should be covered by the ab- cate General. Detailed information sence, shall grant liberty or leave to concerning the delivery of members, ci- permit appearance for trial, unless this vilian employees, and dependents to would have a serious negative impact foreign authorities when a status of on the command. In the event that lib- forces agreement is in effect is con- erty or leave is not granted, a judge ad- tained in DoD Directive 5525.1 of 9 vocate of the Navy or Marine Corps April 1985 and SECNAVINST 5820.4F.2 should immediately be requested to act as liaison with the court. Nothing in § 720.9 Circumstances in which deliv- this section is to be construed as per- ery is refused. mitting the member arrested and re- (a) Disciplinary proceedings pending. leased to avoid the obligations of bond When disciplinary proceedings involv- or recognizance by reason of the mem- ing military offenses are pending, com- ber’s being in the military service. manding officers should obtain legal guidance from a judge advocate of the § 720.11 Interviewing servicemembers Navy or Marine Corps prior to delivery or civilian employees by federal ci- of members to Federal or State au- vilian investigative agencies. thorities. Requests by the Federal Bureau of (b) When delivery may be refused. De- Investigation, Naval Investigative livery may be refused only in the fol- Service Command, or other Federal ci- lowing limited circumstances: vilian investigative agencies to inter- (1) Where the accused has been re- view members or civilian employees of tained for prosecution; or the Department of the Navy suspected (2) When the commanding officer de- or accused of crimes should be prompt- termines that extraordinary cir- ly honored. Any refusal of such a re- cumstances exist which indicate that quest shall be immediately reported to delivery should be refused. the Judge Advocate General, or the Of- (c) Delivery under Detainers Act. When fice of General Counsel, as appropriate, the accused is undergoing sentence of a by telephone, or by message if tele- court-martial, see § 720.12. phone is impractical. When the em- (d) Reports required. When delivery ployee in question is a member of an will be refused, the commanding officer exclusive bargaining unit, a staff judge shall report the circumstances to the advocate or General Counsel attorney Judge Advocate General by telephone, will be consulted to determine whether or by message if telephone is imprac- the employee has a right to have a bar- tical. The initial report shall be con- gaining unit representative present firmed by letter setting forth a full during the interview. statement of the facts. A copy of the report shall be forwarded to the re- § 720.12 Request for delivery of mem- gional coordinator. bers serving sentence of court-mar- tial. § 720.10 Members released by civil au- (a) General. Article 14, UCMJ (10 thorities on bail or on their own re- U.S.C. 814), provides authority to honor cognizance. requests for delivery of members serv- A member of the Navy or Marine ing a sentence of a court-martial. Al- Corps arrested by Federal or State au- though seldom utilized, additional au- thorities and released on bail or on his thority and mandatory obligation to own recognizance has a duty to return deliver such members are provided by to his parent organization. Accord- the Interstate Agreement on Detainers ingly, when a member of the Navy or Act (18 U.S.C. app. 9, hereinafter ‘‘the Marine Corps is arrested by Federal or Act’’), which applies to the Federal agency holding the prisoner. The De- 2 See footnote 1 of § 720.5(b). partment of the Navy, as an agency of
202
VerDate 25
the Federal Government, shall comply oner of the existence of any detainer with the Act. The Act is designed to and of the prisoner’s right to request avoid speedy-trial issues and to aid in disposition. The prisoner’s request is rehabilitation efforts by securing a directed to the custodial official who greater degree of certainty about a must forward it to the appropriate prisoner’s future. The Act provides a prosecuting official and court, with a way for a prisoner to be tried on certificate of prisoner status as pro- charges pending before State courts, ei- vided by Article III of the Act. ther at the request of the State where (c) Article 14, UCMJ. When a request the charges are pending or the pris- for custody does not invoke the Inter- oner’s request. When refusal of delivery state Agreement on Detainers Act, de- under Article 14, UCMJ, is intended, livery of custody shall be governed by comply with § 720.9(d). Article 14, UCMJ, and §§ 720.2 through (b) Interstate Agreement on Detainers 720.9. The request shall be honored un- Act. Upon request under the Act by ei- less, in the exercise of discretion, there ther State authorities or the prisoner, is an overriding reason for retaining the cognizant Navy or Marine Corps the accused in military custody, e.g., staff judge advocate, as appropriate, additional courts-martial are to be shall communicate with the appro- convened or the delivery would se- priate State officials, and monitor and verely prejudice the prisoner’s appel- ensure that the cognizant commander late rights. Execution of the agreement acts on all such requests. The Act pro- discussed in § 720.6 is a condition prece- vides that court-martial sentences con- dent to delivery to State authorities. It tinue to run during temporary custody. is not required before delivery to Fed- This section does not cover requests eral authorities. See § 720.7. Unlike de- between Federal authorities. The pro- livery under the Act, delivery of cus- cedure set forth in § 720.12(c) shall be tody pursuant to Article 14, UCMJ, applied in such cases. interrupts execution of the court-mar- (1) State request. State officials may request delivery of prisoners in mili- tial sentence. tary custody under section 2, Article § 720.13 Request for delivery of mem- IV, of the Act. Where a detainer has bers serving sentence of a state been lodged against the prisoner, and court. the prisoner is serving a sentence (re- gardless of whether an appeal is in (a) General. Ordinarily, members process), delivery is mandatory unless serving protracted sentences resulting the request is disapproved by the Di- from a State criminal conviction will rector of the Bureau of Prisons, Wash- be processed for administrative dis- ington, DC, 20537 as the designee of the charge by reason of misconduct. It Attorney General for this purpose. 28 may, however, be in the best interest of CFR 0.96(n). There has been no further the Naval Service to retain a member delegation to military authority. The charged with a serious offense, subject prisoner should be informed that he to military jurisdiction, to try the may request the Director of the Bureau member by court-martial. The Navy of Prisons, Washington, DC 20537, with- may obtain temporary custody of in- in 30 days after such request is re- carcerated members for prosecution ceived, to deny the request. Upon the with a request to the State under the expiration of such 30-day period or Interstate Agreement on Detainers upon the Director of the Bureau of Act. 18 U.S.C. app. 9. The Department Prisons’ denial of the prisoner’s re- of the Navy may use the Act in the quest, whichever occurs first, the pris- same manner in which State authori- oner shall be delivered to the request- ties may request members purusant to ing authority. § 720.12. (2) Prisoner request. The obligation to (b) Interstate Agreement on Detainers grant temporary custody under the Act Act. Military authorities may use the also applies to prisoners’ requests to be Act to obtain temporary custody of a delivered to State authority. Section 2, member incarcerated in a State insti- Article III(c) of the Act requires the tution, pursuant to conviction by a custodial official to inform the pris- State court, to resolve criminal
203
VerDate 25
charges against the member before a persons awaiting prosecution, except court-martial. for periods during which the prisoner (1) Detainer. If a command requests attends court or travels to or from any temporary custody under the Act, the place at which his presence may be re- commanding officer of the cognizant quired; naval legal service office or the Marine (iii) Return the prisoner to the send- Corps staff judge advocate, shall file a ing jurisdiction at the earliest prac- detainer with the warden, commis- tical time, but not before the charges sioner of corrections, or other State of- that underlie the request have been re- ficial having custody of the member. solved (prematurely returning the pris- The detainer shall identify the member oner will result in dismissal of the with particularity, enumerate the mili- charges); and tary charges pending, and request the (iv) Pay all costs of transporting, command be notified in advance of any caring for, keeping, and returning the intention to release the member from prisoner to the sending jurisdiction, confinement. unless the command and the State (2) Request for delivery. As soon as agree on some other allocation of the practical after filing the detainer, the costs or responsibilities. commanding officer of the cognizant naval legal service office or the Marine §§ 720.14–720.19 [Reserved] Corps staff judge advocate, shall pre- pare a written request for temporary custody of the member addressed to Subpart B—Service of Process and the State official charged with admin- Subpoenas Upon Personnel istration of the State penal system. The request shall designate the per- SOURCE: 57 FR 5232, Feb. 13, 1992, unless son(s) to whom the member is to be de- otherwise noted. livered and shall be transmitted via the military judge to whom the member’s § 720.20 Service of process upon per- case has been assigned. If the request is sonnel. properly prepared, the military judge (a) General. Commanding officers shall approve, record, and transmit the afloat and ashore may permit service request to the addressee official. The of process of Federal or State courts Act provides the State with a 30-day upon members, civilian employees, de- period after receipt of the request be- pendents, or contractors residing at or fore the request is to be honored. With- located on a naval installation, if lo- in that period of time, the governor of cated within their commands. Service the State may disapprove the request, will not be made within the command either unilaterally or upon the pris- without the commanding officer’s con- oner’s request. If the governor dis- sent. The intent of this provision is to approves the request, the command protect against interference with mis- should coordinate any further action sion accomplishment and to preserve with the Judge Advocate General. good order and discipline, while not un- (3) Responsibilities. The cognizant necessarily impeding the court’s work. command shall ensure that the respon- Where practical, the commanding offi- sibilities of a receiving jurisdiction, de- cer shall require that the process be lineated in section 2, Article IV of the served in his presence, or in the pres- Act, are discharged. In particular, the ence of a designated officer. In all Act requires that the receiving juris- cases, individuals will be advised to diction: seek legal counsel, either from a legal (i) Commence the prisoner’s trial assistance attorney or from personal within 120 days of the prisoner’s arriv- counsel for service in personal matters, al, unless the court, for good cause and from Government counsel for serv- shown during an Article 39(a), UCMJ, ice in official matters. The command- session, grants a continuance nec- ing officer is not required to act as a essary or reasonable to promote the process server. The action required de- ends of justice; pends in part on the status of the indi- (ii) Hold the prisoner in a suitable vidual requested and which State jail or other facility regularly used for issued the process.
204
VerDate 25
(1) In-State process. When a process turned to the sender. Questions should server from a State or Federal court be referred to the staff judge advocate, from the jurisdiction where the naval command counsel, or the local naval station is located requests permission legal service office. to serve process aboard an installation, (b) Service of process arising from offi- the command ordinarily should not cial duties. (1) Whenever a member or prevent service of process so long as de- civilian employee of the Department of livery is made in accordance with rea- the Navy is served with process be- sonable command regulations and is cause of his official position, the Judge consistent with good order and dis- Advocate General or the Associate cipline. Withholding service may be General Counsel (Litigation), as appro- justified only in the rare case when the priate, shall be notified by telephone, individual sought is located in an area or by message if telephone is imprac- under exclusive Federal jurisdiction tical. Notification shall be confirmed not subject to any reservation by the by a letter report by the nearest appro- State of the right to serve process. priate command. The letter report Questions on the extent of jurisdiction shall include the detailed facts which should be referred to the staff judge ad- give rise to the action. vocate, command counsel, or local (2) Any member or civilian employee naval legal service office. If service is served with Federal or State court civil permitted, an appropriate location or criminal process or pleadings (in- should be designated (for example, the cluding traffic tickets) arising from ac- command legal office) where the proc- tions performed in the course of offi- ess server and the member or employee cial duties shall immediately deliver can meet privately in order that proc- all such process and pleadings to the ess may be served away from the work- commanding officer. The commanding place. A member may be directed to re- officer shall ascertain the pertinent port to the designated location. A civil- facts and notify the Judge Advocate ian may be invited to the designated General or Associate General Counsel location. If the civilian does not co- (Litigation), as appropriate, by tele- operate, the process server may be es- phone or by message if telephone is im- corted to the location of the civilian in practical, of the service and imme- order that process may be served. A ci- diately forward the pleadings and proc- vilian may be required to leave a clas- ess to the relevant office. The member sified area in order that the process or civilian employee will be advised of server may have access to the civilian. the right to remove civil or criminal If unusual circumstances require that proceedings from State to Federal the command not permit service, see court under 28 U.S.C. 1442, 1442a, rights § 720.20(e). under the Federal Employees Liability (2) Out-of-State process. In those cases Reform and Tort Compensation Act (28 where the process is to be served by au- U.S.C. 2679b), if applicable, and the thority of a jurisdiction other than right of a Federal employee to request that where the command is located, representation by Department of Jus- the person named is not required to ac- tice attorneys in Federal (civil) or cept process. Accordingly, the process State (civil or criminal) proceedings server from the out-of-State jurisdic- and in congressional proceedings in tion need not be brought face-to-face which that person is sued in an individ- with the person named in the process. ual capacity, as delineated in 28 CFR Rather, the process server should re- 50.15. Requests for representation shall port to the designated command loca- be addressed to the Judge Advocate tion while the person named is con- General or Associate General Counsel tacted, apprised of the situation, and (Litigation), as appropriate, and shall advised that he may accept service, but be endorsed by the commanding offi- also may refuse. In the event that the cer, who shall provide all necessary person named refuses service, the proc- data relating to the questions of ess server should be so notified. If serv- whether the person was acting within ice of process is attempted from out-of- the course of official duty or scope of State by mail and refused, the refusal employment at the time of the inci- should be noted and the documents re- dent out of which the suit arose.
205
VerDate 25
(3) If the service of process involves a graphic limits of the jurisdiction of the potential claim against the Govern- court from which the process issued. In ment, see 32 CFR 750.12(a), 750.12(b), such cases, acceptance of the service is and 750.24. The right to remove to Fed- not compulsory, but service may be eral Court under 28 U.S.C. 1442 and voluntarily accepted in accordance 1442a must be considered where the with § 720.20(b). In exceptional cases outcome of the State court action may when the United States has agreed that influence a claim or potential claim service of process will be accepted by against the United States. Questions such persons when located outside the should be directed to the Judge Advo- geographic limits of the jurisdiction of cate General or the Associate General the court from which the process Counsel (Litigation). issued, the provisions of the agreement (c) Service of process of foreign courts. and of § 720.20(a) will govern. (1) Usually, the amenability of mem- (3) Under the laws of some countries bers, civilian employees, and their de- (such as Sweden), service of process is pendents stationed in a foreign coun- effected by the document, in original try, to the service of process from or certified copy, being handed to the courts of the host country will have person for whom the service is in- been settled by an agreement between tended. Service is considered to have the United States and the foreign coun- taken place even if the person refuses try concerned (for example, in the to accept the legal documents. There- countries of the signatory parties, fore, if a commanding officer or other amenability to service of civil process officer in the military service person- is governed by paragraphs 5(g) and 9 of ally hands, or attempts to hand, that Article VIII of the NATO Status of person the document, service is consid- Forces Agreement, TIAS 2846). When ered to have been effected, permitting service of process on a person described the court to proceed to judgment. Upon above is attempted within the com- receipt of foreign process with a re- mand in a country in which the United quest that it be served upon a person States has no agreement on this sub- described in § 720.20(c)(1), a command- ject, advice should be sought from the ing officer shall notify the person of Judge Advocate General or the Associ- the fact that a particular foreign court ate General Counsel (Litigation), as ap- is attempting to serve process and also propriate. When service of process is inform that person that the process upon the United States Government or may be ignored or received. If the per- one of its agencies or instrumentalities son to be served chooses to ignore the as the named defendant, the doctrine of service, the commanding officer will sovereign immunity may allow the return the document to the embassy or service of process to be returned to the consulate of the foreign country with court through diplomatic channels. the notation that the commanding offi- Service of process directed to an offi- cer had the document, that the person cial of the United States, on the other chose to ignore it, and that no physical hand, must always be processed in ac- offer of service had been made. The cordance with the applicable inter- commanding officer will advise the national agreement or treaty, regard- Judge Advocate General or the Associ- less of whether the suit involves acts ate General Counsel (Litigation), as ap- performed in the course of official du- propriate, of all requests for service of ties. The Judge Advocate General or process from a foreign court and the the Associate General Counsel (Litiga- details thereof. tion), as appropriate, will arrange (d) Leave or liberty to be granted per- through the Department of Justice for sons served with process. When members defense of the suit against the United or civilian employees are either served States or an official acting within the with process, or voluntarily accept scope of official duties, or make other service of process, in cases where the arrangements, and will issue instruc- United States is not a party to the liti- tions. gation, the commanding officer nor- (2) Usually, the persons described in mally will grant leave or liberty to the § 720.20(c)(1) are not required to accept person served to permit compliance service of process outside the geo- with the process, unless to do so would
206
VerDate 25
have an adverse impact on naval oper- criminal case, and such person is un- ations. When a member or civilian em- available because of an overseas as- ployee is a witness for a nongovern- signment, the command should imme- mental party because of performance diately contact the Judge Advocate of official duties, the commanding offi- General, or the Associate General cer may issue the person concerned Counsel (Litigation), as appropriate. permissive orders authorizing attend- ance at the trail at no expense to the § 720.22 Members or civilian employ- Government. The provisions of 32 CFR ees subpoenaed as witnesses in Fed- part 725 must also be considered in eral courts. such cases. Members or civilian em- (a) Witnesses on behalf of Federal Gov- ployees may accept allowances and ernment. When members or civilian em- mileage tendered; however, any fees ployees of the Department of the Navy tendered for testimony must be paid to are required to appear as witnesses in a the Department of the Navy unless the Federal Court to testify on behalf of member or employee is on authorized the Federal Government in cases in- leave while attending the judicial pro- volving Department of the Navy activi- ceeding. When it would be in the best ties, the Chief of Naval Personnel or interests of the United States Govern- the Commandant of the Marine Corps, ment (for example, in State criminal as appropriate, will issue temporary trails), travel funds may be used to additional duty orders to that person. provide members and civilian employ- The charges for such orders will be ees as witnesses as provided in the borne by the activity to which the re- Joint Federal Travel Regulations. Re- quired witness is attached. Payment to sponsibility for the payment of the witnesses will be as provided by the member’s mileage and allowances will Joint Federal Travel Regulations and be determined pursuant to the Joint U.S. Navy travel instructions. If the re- Federal Travel Regulations, Volume 1, quired witness is to appear in a case in paragraph M6300, subsections 1–3.3 which the activities of the Department (e) Report where service not allowed. of the Navy are not involved, the De- Where service of process is not per- partment of the Navy will be reim- mitted, or where the member or civil- bursed in accordance with the proce- ian employee is not given leave, lib- dures outlined in the Navy Comptroller erty, or orders to attend a judicial pro- Manual, section 046268. ceeding, a report of such refusal and (b) Witnesses on behalf of nongovern- the reasons therefor shall be made by mental parties—(1) Criminal actions. telephone, or message if telephone is When members or civilian employees impractical, to the Judge Advocate are served with a subpoena to appear as General or the Associate General Coun- a witness for a defendant in a criminal sel (Litigation), as appropriate. action and the fees and mileage re- quired by rule 17(d) of the Federal § 720.21 Members or civilian employ- Rules of Criminal Procedure are ten- ees subpoenaed as witnesses in dered, the commanding officer may State courts. issue the person subpoenaed permissive Where members or civilian employ- orders authorizing attendance at the ees are subpoenaed to appear as wit- trial at no expense to the Government, nesses in State courts, and are served unless the person’s absence would have as described in §§ 720.20, 720.20(d) ap- an adverse impact on naval operations. plies. If these persons are requested to In such a case, a full report of the cir- appear as witnesses in State courts cumstances will be made to the Judge when the interests of the Federal Gov- Advocate General or, in the case of ci- ernment are involved (e.g., Medical vilian employees, to the Associate Gen- Care Recovery Act cases), follow the eral Counsel (Litigation). In those procedures described in § 720.22. If State cases where fees and mileage are not authorities are attempting to obtain tendered as required by rule 17(d) of the the presence of a member or a civilian Federal Rules of Criminal Procedure, employee as a witness in a civil or but the person subpoenaed still desires to attend, the commanding officer also 3 See footnote 1 of § 720.5(b). may issue permissive orders at no cost
207
VerDate 25
to the Government. Such persons, how- State court, either as a party or as a ever, should be advised that an agree- witness, in private litigation pending ment as to reimbursement for any ex- before such a court. The deposition of a penses incident to travel, lodging, and naval prisoner may be taken in such a subsistence should be effected with the case, subject to reasonable conditions party desiring their attendance and or limitations imposed by the com- that no reimnbursement should be ex- mand concerned. pected from the Government. (2) Civil actions. When members or ci- § 720.24 Interviews and depositions in vilian employees are served with a sub- connection with civil litigation in poena to appear as a witness on the be- matters pertaining to official du- half of a nongovernmental party in a ties. civil action brought in a Federal court, Requests to interview, depose, or call the provisions of § 720.20 apply. as witnesses, current or former mem- § 720.23 Naval prisoners as witnesses bers or civilian employees of the De- or parties in civilian courts. partment of the Navy, regarding infor- (a) Criminal actions. When Federal or mation obtained in the course of their State authorities desire the attendance official duties, including expert testi- of a naval prisoner as a witness in a mony related thereto, shall be proc- criminal case, they should submit a essed in accordance with 32 CFR part written request for such person’s at- 725. tendance to the Judge Advocate Gen- eral. The civilian authority should in- § 720.25 Repossession of personal clude the following averments in its re- property. quest: Repossession of personal property, lo- (1) That the evidence to be derived cated on a Navy or Marine Corps in- from the prisoner’s testimony is un- stallation, belonging to a member or to available from any other source: any dependent residing at or located on (2) That the civilian authority will a Department of the Navy installation, provide adequate security arrange- may be permitted in the discretion of ments for the prisoner and assume re- the commanding officer of the installa- sponsibility for the prisoner while he is tion where the property is located, sub- in its custody; and ject to the following. The documents (3) that the civilian authority will as- purporting to authorize repossession sume all costs of transporting the pris- and the procedures for repossessing the oner from the brig, of maintaining that property must comply with State law. prisoner while in civilian custody, and Prior to permitting physical reposses- of returning the prisoner to the brig from which he was removed. sion of any property, the commanding officer shall cause an informal inquiry The civilian authority should also in- into the circumstances and then deter- clude in its request an estimate of the mine whether to allow the reposses- length of time the prisoner’s services sion. If repossession is to be allowed, will be required, and should specify the the person whose property is to be re- mode of transport by which it intends to return the prisoner. Upon receipt of possessed should be asked if he wishes such a request, authority by the Judge to relinquish the property voluntarily. Advocate General will be given, in a Repossession must be carried out in a proper case, for the production of the manner prescribed by the commanding requested naval prisoner in court with- officer. In the case of property owned out resort to a writ of habeas corpus ad by civilian employees of the Depart- testificandum (a writ which requires ment of the Navy or civilian contrac- the production of a prisoner to testify tors or their employees or dependents, before a court of competent jurisdic- the commanding officer should direct tion). that the disputed property be removed (b) Civil actions. The Department of from the installation until the com- the Navy will not authorize the attend- manding officer is satisfied that the ance of a naval prisoner in a Federal or dispute is resolved.
208
VerDate 25
§§ 720.26–720.29 [Reserved] consent to the production or if the pro- duction is otherwise authorized under Subpart C—Production of Official the Privacy Act and the Secretary of Records the Navy Instruction 5211.5 series. Whenever compliance with a court § 720.30 Production of official records order for production of Department of in response to court order. the Navy records is deemed inappropri- (a) General. Where unclassified naval ate for any reason, such as when they records are desired by or on behalf of contain privileged or classified infor- litigants, the parties will be informed mation, the records and subpoena may that the records desired, or certified be forwarded to the Secretary of the copies thereof, may be obtained by for- Navy (Judge Advocate General) for ap- warding to the Secretary of the Navy, propriate action, and the parties to the Navy Department, Washington, DC, or suit so notified. Any release of classi- other custodian of the records, a court fied information for civil court pro- order calling for the particular records ceedings (whether civil or criminal in desired or copies thereof. Compliance nature) must also be coordinated with- with such court order will be effected in the office of the Chief of Naval Oper- by transmitting certified copies of the ations (OP–009D) in accordance with records to the clerk of the court out of the Chief of Naval Operations Instruc- which the process issues. See the provi- tion 5510.1 series. sions in the Secretary of the Navy In- (b) Records in the custody of National struction 5211.5 series which set forth Personnel Records Center. Court orders, the additional requirement that rea- subpoenas duces tecum, and other legal sonable efforts be made to notify all in- documents demanding information dividuals to whom the record pertains from, or the production of, service or of (1) the disclosure, and (2) the nature medical records in the custody of the of the information provided, when the National Personnel Records Center in- court order has become a matter of volving former (deceased or discharged) public record and the record is con- Navy and Marine Corps personnel shall tained in a system of records as defined be served upon the General Services in the Secretary of the Navy Instruc- Administration, 9700 Page Boulevard; tion 5211.5 series. If an original record St. Louis, MO 63132, rather than the is produced by a naval custodian, it Department of the Navy. In the follow- will not be removed from the custody ing situations, the request shall be for- of the person producing it, but copies warded to the Secretary of the Navy may be placed in evidence. Upon writ- (Judge Advocate General). ten request of one or more parties in (1) When the United States (Depart- interest or their respective attorneys, ment of the Navy) is one of the liti- records which would be produced in re- gants. sponse to a court order as set forth (2) When the case involves a person above may be furnished without court or persons who are or have been senior order when such records are not in a officers or officials within the Depart- ‘system of records’ as defined by the ment of the Navy; and Privacy Act (5 U.S.C. 552a) except as (3) In other cases considered to be of noted in paragraphs (b) and (c) of this special significance to the Judge Advo- section. In determining whether or not cate General or the Secretary of the a record contained in a ‘‘system of Navy. records’’ will be furnished in response (c) Exceptions. Where not in conflict to a written request for that record, with the foregoing restrictions relative consideration shall be given to the pro- to personal information, the release of visions of the Secretary of the Navy In- which would result in a clearly unwar- struction 5720.42 series. If the record is ranted invasion of personal privacy, in a ‘‘system of records,’’ it may be the production in Federal, State, terri- produced upon written request of one torial, or local courts of evidentiary or more parties in interest or their re- material from investigations con- spective attorneys in the absence of a ducted pursuant to this Manual, and court order only if the individuals to the service, employment, pay or medi- whom the record pertains give written cal records (including medical records
209
VerDate 25
of dependents) of persons in the naval vacy) and SECNAVINST 5720.42 series service is authorized upon receipt of a (Freedom of Information). court order, without procuring specific (b) Release of JAG Manual Investiga- authority from the Secretary of the tions, Court-Martial Records, Articles 69 Navy. When the request for production and 73 Petitions, and Article 138 Com- involves material related to claims in plaints of Wrongs. Except as provided in favor of the Government, notification this section, only the Assistant Judge should be made to the affirmative Advocates General (Civil Law) and claims office at the naval legal service (Military Law) shall make determina- office having territorial responsibility tions concerning the release of the in the area. Where travel is involved, it records covered herein if less than a re- must be without expense to the Gov- lease of the complete requested record ernment. will result. In all other instances the (d) Medical and other records of civilian Deputy Assistant Judge Advocates employees. Production of medical cer- General, who have cognizance of the tificates or other medical reports con- record(s) in issue, may release such cerning civilian employees is con- records. Local record holders are re- trolled by the provisions of Executive minded that the authority to release Order 10561, 19 FR 5963, as implemented records does not necessarily include de- by Federal Personnel Manual, chapter nial authority. 294, and chapter 339.1–4 (reprinted in (1) JAG Manual Investigations (includ- MANMED article 23–255(6)). Records of ing enclosures). Any request for release civilian employees other than medical outside the Department of the Navy records may be produced upon receipt shall be forwarded to the Assistant of a court order without procuring spe- Judge Advocate General (Military Law) cific authority from the Secretary of for determination, except that Privacy the Navy, provided there is not in- Act requests for release shall be for- volved any classified or For-Official- warded to the Assistant Judge Advo- Use-Only information, such as loyalty cate General (Civil Law) for determina- or security records. Records relating to tion. compensation benefits administered by (2) Court-martial records and Articles 69 the Bureau of Employees’ Compensa- and 73 petitions. These are matters of tion may not be disclosed except upon public record and may be released by the written approval of that Bureau (20 any local holder. Court-martial records CFR 1.21). In case of doubt, the matter should be released only following prop- should be handled in accordance with er authentication. the provisions of subsection a above. (3) Article 138 Complaints of Wrongs. Where information is furnished here- Forward as in paragraph (b)(1) of this under in response to a court order, it is section. advisable that certified copies rather (c) Affirmative claims files. Affirmative than originals be furnished and that, claims files (including Medical Care where original records are to be pro- Recovery Act files), except to the ex- duced, the assistance of the U.S. Attor- tent that such files contain copies of ney or U.S. Marshal be requested so reports of investigations prepared that custody of the records may be under the Manual of the Judge Advo- maintained. cate General, or classified or privileged [38 FR 6021, Mar. 6, 1973, as amended at 48 FR information, may be released by local 4466, Feb. 1, 1983] holders to insurance companies to sup- port claims; to civilian attorneys rep- § 720.31 Production of official records resenting the injured party’s and the in the absence of court order. Government’s interests; and to other (a) General. Release of official records components of the Department of De- outside the Department of the Navy in fense, without the prior approval of the the absence of a court order is gov- Judge Advocate General, provided that erned by the Privacy Act (5 U.S.C. 552a) the amount of the claim is within the and the Freedom of Information Act (5 monetary settlement authority of the U.S.C. 552). The following sources per- releaser. When the request for produc- tain: SECNAVINST 5211.5 series (Pri- tion involves material related to
210
VerDate 25
claims in favor of the Government, no- § 720.41 Definitions. tification should be made to the af- Court. Any judicial body in the firmative claims office at the naval United States with jurisdiction to im- legal service office having territorial pose criminal sanctions on a Depart- responsibility for the area. ment of the Navy member, employee, (d) Accounting for disclosures of records or family member. from systems of records. When records lo- Employee. A civilian employed by the cated in a ‘‘system of records’’ are re- Department of the Navy or a compo- leased, the official responsible for re- nent service, including an individual leasing the records shall consult paid from non-appropriated funds, who SECNAVINST 5211.5 series regarding is a citizen or national of the United the requirement that accountings of States. the disclosures be maintained. Appen- Family member. A spouse, natural or dix A–3–a of the Manual of the Judge adopted child, or other lawful depend- Advocate General is recommended for ent of a Department of the Navy em- ployee or member accompanying the this purpose. Department of the Navy member or employee assigned to duty outside the (1 CFR 18.14, and part 21, subpart B) United States. [45 FR 8599, Feb. 8, 1980, as amended at 48 FR Felony. A criminal offense that is 4466, Feb. 1, 1983] punishable by incarceration for more than one year, regardless of the sen- § 720.32 Certificates of full faith and tence that is imposed for commission credit. of that offense. The Judge Advocate General, the Member. An individual on active duty Deputy Judge Advocate General, or in the Navy, Naval Reserve, Marine any Assistant Judge Advocate General Corps, or Marine Corps Reserve. is authorized to execute certificates of Request for return. Any request or full faith and credit certifying the sig- order received from a court, or from natures and authority of officers of the federal, state or local authorities con- cerning a court order, for the return to Department of the Navy. the United States of members, employ- [38 FR 6021, Mar. 6, 1973] ees, or family members, for any reason listed in § 720.42. Subpart D—Compliance With Respondent. A member, employee, or family member whose return to the Court Orders by Department United States has been requested, or of the Navy Members, Em- with respect to whom other assistance ployees, and Family Members has been requested under this instruc- Outside the United States tion. Responsible Official. Officials des- ignated in this instruction to act on a AUTHORITY: DoD Directive 5525.9, 54 FR 296, 32 CFR part 146. request to return, or take other action affecting, members, employees or fam- SOURCE: 55 FR 47876, Nov. 16, 1990, unless ily members to the United States otherwise noted. under this instruction. United States. The 50 states, the Dis- § 720.40 Purpose. trict of Columbia, Puerto Rico, Guam, This instruction: the Northern Mariana Islands, Amer- (a) Implements 32 CFR part 146. ican Samoa, and the Virgin Islands. (b) Establishes policy and procedures for requesting the return to the United § 720.42 Policy. States of, or other action affecting, De- (a) It is Department of the Navy pol- partment of the Navy (DON) personnel icy to cooperate, as prescribed in this and employees serving outside the instruction, with courts and federal, United States, and family members ac- state and local officials in enforcing companying them, in compliance with court orders. The Department of the court orders. Navy will cooperate with requests when such action is consistent with
211
VerDate 25
mission requirements (including oper- temptuous removal of a child from the ational readiness), the provisions of ap- jurisdiction of the court or the custody plicable international agreements, and of a parent or other person awarded ongoing Department of Defense (DoD) custody by a court order will normally investigations and courts-martial. have their command sponsorship re- (b) Every reasonable effort will be moved. Failure to comply with other made to resolve the matter without the court orders may also result in re- respondent returning to the United moval of command sponsorship, de- States, or other action being taken pending on the circumstances of the in- against the respondent under this in- dividual case. struction. (g) To facilitate prompt resolution of (c) Requests to return members for requests for return of members, mini- felonies or for contempt involving un- mize the burden on operating units, lawful or contemptuous removal of a and to provide consistency during ini- child from the jurisdiction of a court or tial implementation of this new pro- the custody of a parent or other person gram, a limited number of responsible awarded custody by a court order will officials, designated in § 720.44, will re- normally be granted, but only if the spond to requesting officials. member cannot resolve the issue with the court without return to the United § 720.43 Points of contact. States. When the member’s return is (a) Authorities issuing requests for inconsistent with mission require- return or for other action under this ments, applicable international agree- instruction may contact the following ments, or ongoing DoD investigations activities: or courts-martial, DoD approval of de- (1) Chief of Naval Personnel (Pers–14), nial will be requested. Washington, DC 20370–5000 (For Navy (d) For all other requests involving members and their family members). members, return will be based on the (2) Commandant, U.S. Marine Corps circumstances of the individual case as (Code JAR), Washington, DC 20380–0001 provided in this instruction. (For Marine Corps members and their (e) Members will normally be re- family members). turned on a temporary additional duty (TAD) basis unless there are compel- (3) Director, Office of Civilian Per- ling reasons the return should be a per- sonnel Management (Code OOL), 800 N. manent change of duty station (PCS). Quincy Street, Arlington, VA 22203–1998 (f) The involuntary return of employ- (For civilian personnel, including non- ees or family members in response to a appropriated fund employees and their request for return is not authorized. family members). However, the following action will be (b) Upon receipt of a request for ac- taken: tion under this instruction, the Office (1) Employees will be strongly urged of Civilian Personnel Management will to comply with court orders. Failure to forward the request to the appropriate comply with court orders involving responsible official for action in ac- felonies or contempt involving unlaw- cordance with § 720.44. ful or contemptuous removal of a child from the jurisdiction of the court or § 720.44 Responsible officials. the custody of a parent or other person The following officials are designated awarded custody by a court order will responsible officials for acting on re- normally require processing for adverse quests to return or to take other action action, up to and including removal affecting members, employees or fam- from federal service. Failure to comply ily members to the United States. with other court orders may require (a) The Chief of Naval Personnel adverse action, depending on the cir- (CHNAVPERS) for requests involving cumstances of the individual case. Navy members and their family mem- (2) Family members will be strongly bers who are not employees. The encouraged to comply with court or- CHNAVPERS may delegate this au- ders. Family members who fail to com- thority within his headquarters, not ply with court orders involving felonies below the 0–6 level for routine matters or contempt involving unlawful or con- and not lower than the flag officer
212
VerDate 25
level for decisions to deny the request agreements, or ongoing DoD investiga- for return. tions and courts-martial, the Depart- (b) The Commandant of the Marine ment of the Navy will ask DoD to ap- Corps (CMC) for requests involving Ma- prove denial of the request for the mili- rine Corps members and their family tary members’s return. To initiate this members who are not employees. The action, there must be an affirmative CMC may delegate this authority with- showing of articulable harm to the in his headquarters, not below the 0–6 unit’s mission or violation of an inter- level for routine matters and no lower national agreement. that the general officer level for deci- (d) When a responsible official has de- sions to deny the request for return. termined a request for return is appar- (c) The local commanding officer or officer in charge for requests involving ently based on an order issued by a employees and their family members court of competent jurisdiction, the re- who are not active duty military mem- sponsible official shall complete action bers. on the request for return within 30 days (d) The Assistant Secretary of the of receipt of the request for return by Navy (Manpower and Reserve Affairs) the responsible official, unless a delay (ASN(M&RA)) for requests not covered is authorized by the ASN(M&RA). by §§ 720.44 (a) through (c). (e) When a delay to complete the ac- tion is warranted, the ASN(M&RA) will § 720.45 Procedures. grant a 45 day delay, and provide a (a) If the request pertains to a felony copy of that approval to the Assistant or to contempt involving the unlawful Secretary of Defense (Force Manage- or contemptuous removal of a child ment & Personnel (ASD(FM&P)) and from the jurisdiction of a court or the the General Counsel, DoD. The 45 day custody of a parent or another person period begins upon request by the re- awarded custody by court order, and sponsible official of the request for re- the matter cannot be resolved with the turn. Conditions which, when accom- court without the respondent returning panied by full supporting justification, to the United States: will warrant the granting of the 45 day (1) For members: The responsible of- delay are: ficial shall direct the commanding offi- (1) Efforts are in progress to resolve cer or officer in charge to order the the matter to the satisfaction of the member to return to the United States. Failure to comply will normally be the court without the respondent’s return basis for disciplinary action against to the United States. the member. (2) To provide sufficient time for the (2) For employees, military and civil- respondent to provide evidence to show ian family members: The responsible legal efforts to resist the request or to official shall strongly encourage the show legitimate cause for noncompli- respondent to comply. Failure to com- ance. ply may subject employees to adverse (3) To provide commanding officers action, to include removal from the an opportunity to detail the specific ef- Federal service, and subject military fect on command mission and oper- and civilian family members to with- ational readiness anticipated from the drawal of command sponsorship. loss of the member or Department of (b) For all other requests when the the Navy employee, and to present matter cannot be resolved with the facts relating to any international court without returning the respondent agreement, or ongoing DoD investiga- to the United States, the responsible tion or courts-martial. official shall take the action described (f) A commanding officer or officer in in this instruction when deemed appro- charge who receives a request for the priate with the facts and cir- return of, or other action affecting, a cumstances of each particular case, fol- lowing consultation with legal staff. member, family member, or employee (c) When a member’s return is incon- not of his/her command will forward sistent with mission requirements, the the request to the appropriate com- provisions of applicable international manding officer or officer in charge,
213
VerDate 25
copy to the responsible official, and ad- and a foreign host-nation, or between vise both of them by message that a re- two different foreign nations, the mat- quest for return or other action has ter shall be referred to the been forwarded to them. ASN(M&RA) on the first issue and to (g) A commanding officer or officer the Judge Advocate General (Code 10) in charge who receives a request for on the second and third issues. the return of, or other action affecting, (2) Encourage the respondent to at- a member, family member, or em- tempt to resolve the matter to the sat- ployee of his/her command will: isfaction of the court or other request- (1) Notify the respondent of the right ing authority without return of or to provide evidence to show legal ef- other action affecting the member, em- forts to resist the request, or to show ployee, or family member. legitimate cause for noncompliance for (3) When a delay to complete action inclusion in the submission to the re- under this section is warranted, re- sponsible official. quest the delay from ASN(M&RA) with (2) For members and their family full supporting justification. members who are not employees, for- (4) Examine all information the re- ward the request immediately to the spondent desires to provide to show appropriate responsible official, to- legal efforts to resist the request, or gether with: otherwise to show legitimate cause for (i) Any information the individual noncompliance. desires to provide to show legal efforts (5) Requests for exception from the to resist the request, or otherwise to requirements of this instruction shall show legitimate cause for noncompli- be submitted, with supporting jus- ance. tification, to the ASN(M&RA) for sub- (ii) Facts detailing the specific im- mission to the ASD(FM&P). pacts on command missions and readi- (6) If a member will be ordered to re- ness anticipated from loss of the mem- turn to the United States, determine if ber. the member will be ordered TAD or (iii) Facts relating to any inter- PCS and advise the member’s com- national agreements or ongoing DoD manding officer of the determination. investigations or courts-martial in- (7) If a member will be ordered to re- volving the respondent. turn to an appropriate port of entry to (iv) Information regarding conditions comply with a request, ensure: expected to interfere with a member’s (i) The requesting officer has given return to the command after comple- official notification to the responsible tion of proceedings. If, in the opinion of official that the requesting official or the commanding officer, there are com- other appropriate party will initiate pelling reasons for the member to be action with the receiving jurisdiction returned to the United States PCS, to secure the member’s delivery/extra- provide full justification to support dition, as appropriate, per chapter 6 of that recommendation to the cognizant the Manual of the Judge Advocate Gen- officer. eral, and provide for all costs incident (3) If a delay in processing is war- thereto, including any escort if desired. ranted under § 720.42 or § 720.45(e), make (ii) If applicable, the necessary ac- a recommendation with supporting jus- counting data are provided to the com- tification to the responsible official. manding officer of the member or or- (4) Monitor, and update as necessary, ders are issued. information provided to the respon- (iii) The member has arranged satis- sible official. factory foster care for any lawful (h) The responsible official shall: minor dependents who will be left un- (1) Determine whether the request is accompanied overseas upon the mem- based on an order issued by a court of ber’s return to the United States. apparent competent jurisdiction and if (8) Notify the requesting official at so, complete action on the request no least 10 days before the member’s re- later than 30 days after its receipt by turn to the selected port of entry. the responsible official. If a conflicts of (9) In the case of an employee or of a law issue is presented between compet- family member, the commanding offi- ing state interests, or between a state cer or officer in charge of the activity
214
VerDate 25
to which the family member’s sponsor PARTS 721–722 [RESERVED] is attached, or by which the employee is employed, will carry out the follow- ing steps: PART 723—BOARD FOR (i) An employee shall be strongly en- CORRECTION OF NAVAL RECORDS couraged to comply with the court order or other request for return. Fail- Sec. ure to comply may be the basis for ad- 723.1 General provisions. 723.2 Establishment, function and jurisdic- verse action to include removal from tion of the Board. Federal service. Adverse action should 723.3 Application for correction. only be taken after coordination with 723.4 Appearance before the board; notice; the cognizant civilian personnel office counsel; witnesses; access to records. and legal counsel and in compliance 723.5 Hearing. with Civilian Personnel Instruction 723.6 Action by the Board. 752. 723.7 Action by the Secretary. (ii) If a family member of either a 723.8 Staff action. member or an employee is the subject 723.9 Reconsideration. of a request for return, the family 723.10 Settlement of claims. member shall be strongly encouraged 723.11 Miscellaneous provisions. to comply with the court order. Failure AUTHORITY: 10 U.S.C. 1034, 1552. to respond may be the basis for with- drawal of command sponsorship of the SOURCE: 62 FR 8166, Feb. 24, 1997, unless otherwise noted. family member. (10) Report promptly to the § 723.1 General provisions. ASN(M&RA) any actions taken under § 720.45 (a) or (b). This part sets up procedures for cor- rection of naval and marine records by (i) The ASN(M&RA): the Secretary of the Navy acting (1) May grant delays of up to 45 days through the Board for Correction of from the date of a request for delay in Naval Records (BCNR or the Board) to accordance with § 720.45(e). remedy error or injustice. It describes (2) Will report promptly all delays of how to apply for correction of naval requests for the return of members to and marine records and how the BCNR the ASD(FM&P) and to the General considers applications. It defines the Counsel of the Department of Defense. Board’s authority to act on applica- (3) Will request from the tions. It directs collecting and main- ASD(FM&P), when warranted, excep- taining information subject to the Pri- tion to the policies and procedures of vacy Act of 1974 authorized by 10 U.S.C. DoD Directive 5525.9 of December 27, 1034 and 1552. 1988. (4) Consolidate and forward reports of § 723.2 Establishment, function and ju- action taken under § 720.45 (a) or (b) to risdiction of the Board. the ASD(FM&P) and the General Coun- (a) Establishment and composition. sel, DoD as required by DoD Directive Under 10 U.S.C. 1034 and 1552, the Board 5525.9 of December 27, 1988. for Correction of Naval Records is es- § 720.46 Overseas screening programs. tablished by the Secretary of the Navy. The Board consists of civilians of the The Chief of Naval Operations (CNO) executive part of the Department of and the CMC shall incorporate proce- the Navy in such number, not less than dures requiring members and employ- three, as may be appointed by the Sec- ees to certify they have legal custody retary and who shall serve at the pleas- of all minor dependents accompanying ure of the Secretary. Three members them outside the United States into present shall constitute a quorum of service overseas screening programs. the Board. The Secretary of the Navy will designate one member as Chair. In § 720.47 Report. the absence or incapacity of the Chair, The report requirement in this in- an Acting Chair chosen by the Execu- struction is exempt from reports con- tive Director shall act as Chair for all trol by SECNAVINST 5214.2B. purposes.
215
VerDate 25
(b) Function. The Board is not an in- justice to excuse the failure to file the vestigative body. Its function is to con- application within the time prescribed. sider applications properly before it for (c) Acceptance of applications. An ap- the purpose of determining the exist- plication will be accepted for consider- ence of error or injustice in the naval ation unless: records of current and former members (1) The Board lacks jurisdiction. of the Navy and Marine Corps, to make (2) The Board lacks authority to recommendations to the Secretary or grant effective relief. to take corrective action on the Sec- (3) The applicant has failed to comply retary’s behalf when authorized. with the filing requirements of para- (c) Jurisdiction. The Board shall have graphs (a)(l), (a)(2), or (a)(3) of this sec- jurisdiction to review and determine tion. all matters properly brought before it, (4) The applicant has failed to ex- consistent with existing law. haust all available administrative rem- edies. § 723.3 Application for correction. (5) The applicant has failed to file an (a) General requirements. (1) The appli- application within 3 years after discov- cation for correction must be submit- ery of the alleged error or injustice and ted on DD 149 (Application for Correc- has not provided a reason or reasons tion of Military Record) or exact fac- why the Board should find it in the in- simile thereof, and should be addressed terest of justice to excuse the failure to to: Board for Correction of Naval file the application within the pre- Records, Department of the Navy, 2 scribed 3-year period. Navy Annex, Washington, DC 20370– (d) Other proceedings not stayed. Fil- 5100. Forms and other explanatory ing an application with the Board shall matter may be obtained from the not operate as a stay of any other pro- Board upon request. ceedings being taken with respect to (2) Except as provided in paragraph the person involved. (a)(3) of this section, the application (e) Consideration of application. (1) shall be signed by the person request- Each application accepted for consider- ing corrective action with respect to ation and all pertinent evidence of his/her record and will either be sworn record will be reviewed by a three to or will contain a provision to the ef- member panel sitting in executive ses- fect that the statements submitted in sion, to determine whether to author- the application are made with full ize a hearing, recommend that the knowledge of the penalty provided by records be corrected without a hearing, law for making a false statement or or to deny the application without a claim. (18 U.S.C. 287 and 1001) hearing. This determination will be (3) When the record in question is made by majority vote. that of a person who is incapable of (2) The Board may deny an applica- making application, or whose where- tion in executive session if it deter- abouts is unknown, or when such per- mines that the evidence of record fails son is deceased, the application may be to demonstrate the existence of prob- made by a spouse, parent, heir, or legal able material error or injustice. The representative. Proof of proper interest Board relies on a presumption of regu- shall be submitted with the applica- larity to support the official actions of tion. public officers and, in the absence of (b) Time limit for filing application. Ap- substantial evidence to the contrary, plications for correction of a record will presume that they have properly must be filed within 3 years after dis- discharged their official duties. Appli- covery of the alleged error or injustice. cants have the burden of overcoming Failure to file within the time pre- this presumption but the Board will scribed may be excused by the Board if not deny an application solely because it finds it would be in the interest of the record was made by or at the direc- justice to do so. If the application is tion of the President or the Secretary filed more than 3 years after discovery in connection with proceedings other of the error or injustice, the applica- than proceedings of a board for the cor- tion must set forth the reason why the rection of military or naval records. Board should find it in the interest of Denial of an application on the grounds
216
VerDate 25
of insufficient evidence to demonstrate visions apply to cases processed under the existence of probable material the Military Whistleblower Protection error or injustice is final subject to the Act (10 U.S.C. 1034). provisions for reconsideration con- (b) Notice. (1) In each case in which a tained in § 723.9. hearing is authorized, the Board’s staff (3) When an original application or a will transmit to the applicant a writ- request for further consideration of a ten notice stating the time and place of previously denied application is denied hearing. The notice will be mailed to without a hearing, the Board’s deter- the applicant, at least 30 days prior to mination shall be made in writing and the date of hearing, except that an ear- include a brief statement of the lier date may be set where the appli- grounds for denial. cant waives his/her right to such notice (4) The brief statement of the in writing. grounds for denial shall include the (2) Upon receipt of the notice of hear- reasons for the determination that re- ing, the applicant will notify the Board lief should not be granted, including in writing at least 15 days prior to the the applicant’s claims of constitu- date set for hearing as to whether he/ tional, statutory and/or regulatory vio- she will be present at the hearing and lations that were rejected, together will indicate to the Board the name of with all the essential facts upon which counsel, if represented by counsel, and the denial is based, including, if appli- the names of such witnesses as he/she cable, factors required by regulation to intends to call. Cases in which the ap- be considered for determination of the plicant notifies the Board that he/she character of and reason for discharge. does not desire to be present at the Further the Board shall make a deter- hearing will be considered in accord- mination as to the applicability of the ance with § 723.5(b)(2). provisions of the Military Whistle- (c) Counsel. As used in this part, the blower Protection Act (10 U.S.C. 1034) if term ‘‘counsel’’ will be construed to in- it is invoked by the applicant or rea- clude members in good standing of the sonably raised by the evidence. At- federal bar or the bar of any state, ac- tached to the statement shall be any credited representatives of veterans’ advisory opinion considered by the organizations recognized by the Sec- Board which is not fully set out in the retary of Veterans Affairs under 38 statement. The applicant will also be advised of reconsideration procedures. U.S.C. 3402, or such other persons who, in the opinion of the Board, are consid- (5) The statement of the grounds for denial, together with all attachments, ered to be competent to present equi- shall be furnished promptly to the ap- tably and comprehensively the request plicant and counsel, who shall also be of the applicant for correction, unless informed that the name and final vote barred by law. Representation by coun- of each Board member will be furnished sel will be at no cost to the govern- or made available upon request. Classi- ment. fied or privileged material will not be (d) Witnesses. The applicant will be incorporated or attached to the Board permitted to present witnesses in his/ statement; rather, unclassified or non- her behalf at hearings before the privileged summaries of such material Board. It will be the responsibility of will be so used and written expla- the applicant to notify his/her wit- nations for the substitution will be nesses and to arrange for their appear- provided to the applicant and counsel. ance at the time and place set for hear- ing. Appearance of witnesses will be at § 723.4 Appearance before the board; no cost to the government. notice; counsel; witnesses; access to (e) Access to records. (1) It is the re- records. sponsibility of the applicant to procure (a) General. In each case in which the such evidence not contained in the offi- Board determines a hearing is war- cial records of the Department of the ranted, the applicant will be entitled to Navy as he/she desires to present in appear before the Board either in per- support of his/her case. son or by counsel of his/her selection or (2) Classified or privileged informa- in person with counsel. Additional pro- tion may be released to applicants only
217
VerDate 25
by proper authorities in accordance (c) Continuance. The Board may con- with applicable regulations. tinue a hearing on its own motion. A (3) Nothing in this part authorizes request for continuance by or in behalf the furnishing of copies of official of the applicant may be granted by the records by the Board. Requests for cop- Board if a continuance appears nec- ies of these records should be submit- essary to insure a full and fair hearing. ted in accordance with applicable regu- lations governing the release of infor- § 723.6 Action by the Board. mation. The BCNR can provide a re- (a) Deliberations, findings, conclusions, questor with information regarding and recommendations. (1) Only members procedures for requesting copies of of the Board and its staff shall be these records from the appropriate re- present during the deliberations of the tention agency. Board. (2) Whenever, during the course of its § 723.5 Hearing. review of an application, it appears to (a) Convening of board. The Board will the Board’s satisfaction that the facts convene, recess and adjourn at the call have not been fully and fairly disclosed of the Chair or Acting Chair. by the records or by the testimony and (b) Conduct of hearing. (1) The hearing other evidence before it, the Board may shall be conducted by the Chair or Act- require the applicant or military au- ing Chair, and shall be subject to his/ thorities to provide such further infor- her rulings so as to ensure a full and mation as it may consider essential to fair hearing. The Board shall not be a complete and impartial determina- limited by legal rules of evidence but tion of the facts and issues. shall maintain reasonable bounds of (3) Following a hearing, or where the competency, relevancy, and material- Board determines to recommend that ity. the record be corrected without a hear- (2) If the applicant, after being duly ing, the Board will make written find- notified, indicates to the Board that ings, conclusions and recommenda- he/she does not desire to be present or tions. If denial of relief is rec- to be represented by counsel at the ommended following a hearing, such hearing, the Board will consider the written findings and conclusions will case on the basis of all the material be- include a statement of the grounds for fore it, including, but not limited to, denial as described in § 723.3(e)(4). The the application for correction filed by name and final vote of each Board the applicant, any documentary evi- member will be recorded. A majority dence filed in support of such applica- vote of the members present on any tion, any brief submitted by or in be- matter before the Board will constitute half of the applicant, and all available the action of the Board and shall be so pertinent records. recorded. (3) If the applicant, after being duly (4) Where the Board deems it nec- notified, indicates to the Board that essary to submit comments or rec- he/she will be present or be represented ommendations to the Secretary as to by counsel at the hearing, and without matters arising from but not directly good cause and timely notice to the related to the issues of any case, such Board, the applicant or representative comments and recommendations shall fails to appear at the time and place be the subject of separate communica- set for the hearing or fails to provide tion. Additionally, in Military Whistle- the notice required by § 723.4(b)(2), the blower Protection Act cases, any rec- Board may consider the case in accord- ommendation by the Board to the Sec- ance with the provisions of paragraph retary that disciplinary or administra- (b)(2) of this section, or make such tive action be taken against any Navy other disposition of the case as is ap- official based on the Board’s deter- propriate under the circumstances. mination that the official took reprisal (4) All testimony before the Board action against the applicant will not be shall be given under oath or affirma- made part of the Board’s record of pro- tion. The proceedings of the Board and ceedings or furnished the applicant but the testimony given before it will be will be transmitted to the Secretary as recorded verbatim. a separate communication.
218
VerDate 25
(b) Minority report. In case of a dis- retary or the Executive Director, war- agreement between members of the rant Secretarial review. Board a minority report will be sub- (3) The Executive Director after en- mitted, either as to the findings, con- suring compliance with this section, clusions or recommendation, including will announce final decisions on appli- the reasons therefor. cations decided under this section. (c) Record of proceedings. Following a hearing, or where the Board determines § 723.7 Action by the Secretary. to recommend that the record be cor- (a) General. The record of proceed- rected without a hearing, a record of ings, except in cases finalized by the proceedings will be prepared. Such Board under the authority delegated in record shall indicate whether or not a § 723.6(e), and those denied by the Board quorum was present, and the name and without a hearing, will be forwarded to vote of each member present. The the Secretary who will direct such ac- record shall include the application for tion as he or she determines to be ap- relief, a verbatim transcript of any tes- propriate, which may include the re- timony, affidavits, papers and docu- turn of the record to the Board for fur- ments considered by the Board, briefs ther consideration. Those cases re- and written arguments, advisory opin- turned for further consideration shall ions, if any, minority reports, if any, be accompanied by a brief statement the findings, conclusions and rec- setting out the reasons for such action ommendations of the Board, where ap- along with any specific instructions. If propriate, and all other papers, docu- the Secretary’s decision is to deny re- ments, and reports necessary to reflect lief, such decision shall be in writing a true and complete history of the pro- and, unless he or she expressly adopts ceedings. in whole or in part the findings, con- (d) Withdrawal. The Board may per- clusions and recommendations of the mit an applicant to withdraw his/her Board, or a minority report, shall in- application without prejudice at any clude a brief statement of the grounds time before its record of proceedings is for denial. See § 723.3(e)(4). forwarded to the Secretary. (b) Military Whistleblower Protection (e) Delegation of authority to correct Act. The Secretary will ensure that de- certain naval records. (1) With respect to cisions in cases involving the Military all petitions for relief properly before Whistleblower Protection Act are it, the Board is authorized to take final issued 180 days after receipt of the case corrective action on behalf of the Sec- and will, unless the full relief re- retary, unless: quested is granted, inform applicants (i) Comments by proper naval author- of their right to request review of the ity are inconsistent with the Board’s decision by the Secretary of Defense. recommendation; Applicants will also be informed: (ii) The Board’s recommendation is (1) Of the name and address of the of- not unanimous; or ficial to whom the request for review (iii) It is in the category of petitions must be submitted. reserved for decision by the Secretary (2) That the request for review must of the Navy. be submitted within 90 days after re- (2) The following categories of peti- ceipt of the decision by the Secretary tions for relief are reserved for decision of the Navy. by the Secretary of the Navy: (3) That the request for review must (i) Petitions involving records pre- be in writing and include: viously reviewed or acted upon by the (i) The applicant’s name, address and Secretary wherein the operative facts telephone number; remained substantially the same; (ii) A copy of the application to the (ii) Petitions by former commis- Board and the final decision of the Sec- sioned officers or midshipmen to retary of the Navy; and change the character of, and/or the rea- (iii) A statement of the specific rea- son for, their discharge; or, sons the applicant is not satisfied with (iii) Such other petitions as, in the the decision of the Secretary of the determination of Office of the Sec- Navy.
219
VerDate 25
(4) That the request must be based on (3) Any minority reports; and the Board record; request for review (4) Any material prepared by the Sec- based on factual allegations or evi- retary as required in § 723.7. Moreover, dence not previously presented to the applicant shall also be informed that Board will not be considered under this the name and final vote of each Board paragraph but may be the basis for re- member will be furnished or made consideration by the Board under available upon request and that he/she § 723.9. may submit new and material evidence or other matter for further consider- § 723.8 Staff action. ation. (a) Transmittal of final decisions grant- ing relief. (1) If the final decision of the § 723.9 Reconsideration. Secretary is to grant the applicant’s After final adjudication, further con- request for relief the record of proceed- sideration will be granted only upon ings shall be returned to the Board for presentation by the applicant of new disposition. The Board shall transmit and material evidence or other matter the finalized record of proceedings to not previously considered by the proper naval authority for appropriate Board. New evidence is defined as evi- action. Similarly final decisions of the dence not previously considered by the Board granting the applicant’s request Board and not reasonably available to for relief under the authority delegated the applicant at the time of the pre- in § 723.6(e), shall also be forwarded to vious application. Evidence is material the proper naval authority for appro- if it is likely to have a substantial ef- priate action. fect on the outcome. All requests for (2) The Board shall transmit a copy further consideration will be initially of the record of proceedings to the proper naval authority for filing in the screened by the Executive Director of applicant’s service record except where the Board to determine whether new the effect of such action would be to and material evidence or other matter nullify the relief granted. In such cases (including, but not limited to, any fac- no reference to the Board’s decision tual allegations or arguments why the shall be made in the service record or relief should be granted) has been sub- files of the applicant and all copies of mitted by the applicant. If such evi- the record of proceedings and any re- dence or other matter has been submit- lated papers shall be forwarded to the ted, the request shall be forwarded to Board and retained in a file maintained the Board for a decision. If no such evi- for this purpose. dence or other matter has been submit- (3) The addressees of such decisions ted, the applicant will be informed that shall report compliance therewith to his/her request was not considered by the Executive Director. the Board because it did not contain (4) Upon receipt of the record of pro- new and material evidence or other ceedings after final action by the Sec- matter. retary, or by the Board acting under § 723.10 Settlement of claims. the authority contained in § 723.6(e), the Board shall communicate the deci- (a) Authority. (1) The Department of sion to the applicant. The applicant is the Navy is authorized under 10 U.S.C. entitled, upon request, to receive a 1552 to pay claims for amounts due to copy of the Board’s findings, conclu- applicants as a result of corrections to sions and recommendations. their naval records. (b) Transmittal of final decisions deny- (2) The Department of the Navy is ing relief. If the final decision of the not authorized to pay any claim here- Secretary or the Board is to deny re- tofore compensated by Congress lief, the following materials will be through enactment of a private law, or made available to the applicant: to pay any amount as compensation for (1) A statement of the findings, con- any benefit to which the claimant clusions, and recommendations made might subsequently become entitled by the Board and the reasons therefor; under the laws and regulations admin- (2) Any advisory opinions considered istered by the Secretary of Veterans by the Board; Affairs.
220
VerDate 25
(b) Application for settlement. (1) Set- claimants involved of any claim tlement and payment of claims shall be against the United States on account made only upon a claim of the person of the correction of the record. whose record has been corrected or (d) Report of settlement. In every case legal representative, heirs at law, or where payment is made, the amount of beneficiaries. Such claim for settle- such payment and the names of the ment and payment may be filed as a payee or payees shall be reported to separate part of the application for cor- the Executive Director. rection of the record. (2) When the person whose record has § 723.11 Miscellaneous provisions. been corrected is deceased, and where (a) Expenses. No expenses of any na- no demand is presented by a duly ap- ture whatsoever voluntarily incurred pointed legal representative of the es- by the applicant, counsel, witnesses, or tate, payments otherwise due shall be by any other person in the applicant’s made to the surviving spouse, heir or behalf, will be paid by the Government. beneficiaries, in the order prescribed by the law applicable to that kind of (b) Indexing of decisions. (1) Docu- payment, or if there is no such law cov- ments sent to each applicant and coun- ering order of payment, in the order set sel in accordance with § 723.3(e)(5) and forth in 10 U.S.C. 2771; or as otherwise § 723.8(a)(4), together with the record of prescribed by the law applicable to the votes of Board members and all that kind of payment. other statements of findings, conclu- (3) Upon request, the applicant or ap- sions and recommendations made on plicants shall be required to furnish final determination of an application requisite information to determine by the Board or the Secretary will be their status as proper parties to the indexed and promptly made available claim for purposes of payment under for public inspection and copying at applicable provisions of law. the Armed Forces Discharge Review/ (c) Settlement. (1) Settlement of Correction Boards Reading Room lo- claims shall be upon the basis of the cated on the Concourse of the Penta- decision and recommendation of the gon Building in Room 2E123, Washing- Board, as approved by the Secretary or ton, DC. his designee. Computation of the (2) All documents made available for amounts due shall be made by the ap- public inspection and copying shall be propriate disbursing activity. In no indexed in a usable and concise form so case will the amount found due exceed as to enable the public to identify the amount which would otherwise those cases similar in issue together have been paid or have become due with the circumstances under and/or under applicable laws had no error or reasons for which the Board and/or Sec- injustice occurred. Earnings received retary have granted or denied relief. from civilian employment, self employ- The index shall be published quarterly ment or any income protection plan for and shall be available for public inspec- such employment during any period for tion and distribution by sale at the which active duty pay and allowances Reading Room located on the Con- are payable will be deducted from the course of the Pentagon Building in settlement. To the extent authorized Room 2E123, Washington, DC. Inquiries by law and regulation, amounts found concerning the index or the Reading due may be reduced by the amount of Room may be addressed to the Chief, any existing indebtedness to the Gov- Micromation Branch/Armed Forces ernment arising from military service. Discharge Review/Correction Boards (2) Prior to or at the time of pay- Reading Room, Crystal Mall 4, 1941 Jef- ment, the person or persons to whom ferson Davis Highway, Arlington, Vir- payments are to be made shall be ad- ginia 22202. vised by the disbursing activity of the (3) To the extent necessary to pre- nature and amount of the various bene- vent a clearly unwarranted invasion of fits represented by the total settlement personal privacy, identifying details of and shall be advised further that ac- the applicant and other persons will be ceptance of such settlement shall con- deleted from the documents made stitute a complete release by the available for public inspection and
221
VerDate 25
copying. Names, addresses, social secu- 724.217 Limitation—Reconsiderations. rity numbers and military service 724.218 Limitation—Continuance and Post- numbers must be deleted. Deletions of ponements. other information which is privileged 724.219 Withdrawal of application. 724.220 Review on motion of the NDRB. or classified may be made only if a 724.221 Scheduling of discharge reviews. written statement of the basis for such 724.222 Personal appearance discharge hear- deletion is made available for public ing sites. inspection. 724.223 NDRB support and augmentation by regular and reserve activities. 724.224 Court-martial specifications; pre- PART 724—NAVAL DISCHARGE sumptions concerning. REVIEW BOARD Subpart C—Director, Naval Council of Per- Subpart A—Definitions sonnel Boards and President Naval Discharge Review Board; Responsibil- Sec. 724.101 Naval Service. ities in Support of the Naval Discharge 724.102 Naval Discharge Review Board. Review Board 724.103 NDRB panel. 724.301 Mission. 724.104 NDRB Traveling Panel. 724.302 Functions: Director, Naval Council 724.105 President of the NDRB. 724.106 Presiding Officer, NDRB Panel. of Personnel Boards. 724.107 Discharge. 724.303 Functions: President, Naval Dis- 724.108 Administrative discharge. charge Review Board. 724.109 Types of administrative discharges. 724.304 Responsibility for Department of the 724.110 Reason/basis for administrative dis- Navy Suppport of the Naval Discharge charge. Review Board. 724.111 Punitive discharge. 724.305 Functions of the CMC and CNO. 724.112 Clemency discharge. 724.306 Functions of the Commander, Naval 724.113 Appication. Medical Command. 724.114 Applicant. 724.307 Functions of the Commander, Naval 724.115 Next of kin. Reserve Force. 724.116 Council/representative. 724.117 Discharge review. Subpart D—Principal Elements of the Navy 724.118 Documentary discharge review. Department Discharge Review System 724.119 Personal appearance discharge re- view. 724.401 Applicants. 724.120 National Capital Region (NCR). 724.402 Naval Discharge Review Board. 724.121 Decisional document. 724.403 President, Naval Discharge Review 724.122 Recorder, NDRB Panel. Board. 724.123 Complainant. 724.404 Director, Naval Council of Personnel Boards. Subpart B—Authority/Policy for 724.405 Commandant of the Marine Corps or Departmental Discharge Review the Commander, Naval Military Person- nel Command. 724.201 Authority. 724.406 Commander, Naval Medical Com- 724.202 Statutory/Directive Authority. mand. 724.203 Broad objectives of naval discharge 724.407 Commander, Naval Reserve Force. review. 724.408 Secretary of the Navy. 724.204 Eligibility for naval discharge re- view. Subpart E—Procedural Rights of the Appli- 724.205 Authority for review of naval dis- cant and Administrative Actions Pre- charges; jurisdictional limitations. liminary to Discharge Review 724.206 Jurisdictional determinations. 724.207 Disposition of applications for dis- 724.501 Procedural rights of the applicant. charge review. 724.502 Actions to be taken by the applicant 724.208 Implementation of NDRB decisions. preliminary to discharge review. 724.209 Evidence supporting applications. 724.503 NDRB response to application for 724.210 Review action in instances of un- discharge review. available records. 724.504 NDRB actions preliminary to dis- 724.211 Regularity of government affairs. charge review. 724.212 Availability of records. 724.213 Attendance of witnesses. Subpart F—Naval Discharge Review Board 724.214 Applicant’s expenses. Mission and Functions 724.215 Military representation. 724.216 Failure to appear at a hearing or re- 724.601 General. spond to a scheduling notice. 724.602 Mission.
222
VerDate 25
724.603 Functions. rine Corps, including active and inac- tive reserve components. Subpart G—Organization of the Naval Discharge Review Board § 724.102 Naval Discharge Review Board. 724.701 Composition. 724.702 Executive management. An administrative board, referred to 724.703 Legal counsel. as the ‘‘NDRB’’ established by the Sec- retary of the Navy pursuant to title 10 Subpart H—Procedures of the Naval U.S.C., section 1553, for the review of Discharge Review Board discharges of former members of the Naval Service. 724.801 Matters to be considered in dis- charge review. § 724.103 NDRB panel. 724.802 Applicant’s responsibilities. 724.803 The decisional document. An element of the NDRB, consisting 724.804 Decision process. of five members, authorized to review 724.805 Response to items submitted as discharges. In plenary review session, issues by the applicant. an NDRB panel acts with the authority 724.806 Decisional issues. delegated by the Secretary of the Navy 724.807 Record of NDRB proceedings. to the Naval Discharge Review Board. 724.808 Issuance of decisions following dis- charge review. § 724.104 NDRB Traveling Panel. 724.809 Final disposition of the record of An NDRB Panel that travels for the proceedings. purpose of conducting personal appear- 724.810 Availability of Naval Discharge Re- view Board documents for public inspec- ances discharge review hearings at lo- tion and copying. cations outside of the National Capital 724.811 Privacy Act information. Region (NCR). 724.812 Responsibilities of the Reading Room. § 724.105 President of the NDRB. 724.813 The recommendation of the NDRB A senior officer of the Naval Service president. designated by the Secretary of the 724.814 Secretarial Review Authority (SRA). Navy who is responsible for the direct 724.815 Complaints. supervision of the discharge review Subpart I—Standards for Discharge Review function within the Naval Service. (See subpart E). 724.901 Objective of discharge review. 724.902 Propriety of the discharge. § 724.106 Presiding Officer, NDRB 724.903 Equity of the discharge. Panel. The senior member of an NDRB APPENDICES TO PART 724 Panel shall normally be the Presiding APPENDIX A—POLICY STATEMENT BY THE SEC- Officer. He/she shall convene, recess RETARY OF DEFENSE—ADDRESSING CER- and adjourn the NDRB Panel as appro- TAIN CATEGORIES OF DISCHARGES priate. APPENDIX B—OATH OR AFFIRMATION TO BE ADMINISTERED TO DISCHARGE REVIEW § 724.107 Discharge. BOARD MEMBERS APPENDIX C—SAMPLES OF FORMATS EM- In the context of the review function PLOYED BY THE NAVAL DISCHARGE REVIEW prescribed by 10 U.S.C. 1553, a discharge BOARD or dismissal is a complete separation APPENDIX D—VETERANS’ BENEFITS from the Naval Service, other than one pursuant to the sentence of a general AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 1553. court-martial. By reason of usage, the SOURCE: 50 FR 10943, Mar. 19, 1985, unless term ‘‘discharge’’ is predominantly ap- otherwise noted. plicable to the separation of enlisted personnel for any reason, and the term Subpart A—Definitions ‘‘dismissal’’ to the separation of offi- cers as a result of Secretarial or gen- § 724.101 Naval Service. eral court-martial action. In the con- The Naval Service is comprised of the text of the mission of the NDRB, the uniformed members of the United term ‘‘discharge’’ used here shall, for States Navy and the United States Ma- purpose of ease of expression, include
223
VerDate 25
any complete separation from the authorized and is warranted by the cir- naval service other than that pursuant cumstances of the case; or to the sentence of general court-mar- (b) When characterization of service tial. The term ‘‘discharge’’ also in- as Honorable is clearly warranted by cludes the type of discharge and the the presence of unusual circumstances reason/basis for that discharge, e.g., including personal conduct and per- Other Than Honorable/Misconduct formance of naval duty and is approved (Civil Conviction). on a case-by-case basis by the Sec- retary of the Navy. This characteriza- § 724.108 Administrative discharge. tion will be considered when the mem- A discharge upon expiration of enlist- ber is separated by reason of Selected ment or required period of service, or Changes in Service Obligation, Conven- prior thereto, in a manner prescribed ience of the Government, or Disability. by the Commandant of the Marine (ii) With respect to administrative Corps or the Commander, Naval Mili- matters outside the administrative tary Personnel Command, but specifi- separation system that require a char- cally excluding separation by sentence acterization of service as Honorable or of a court-martial. General, an Entry Level Separation shall be treated as the required charac- § 724.109 Types of administrative dis- terization. In accordance with 1163 of charges. title 10, United States Code (1982), an (a) A determination reflecting a Entry Level Separation for a member member’s military behavior and per- of a Reserve component separated from formance of duty during a specific pe- the Delayed Entry Program is under riod of service. The three characteriza- honorable conditions. tions are: [50 FR 10943, Mar. 19, 1985, as amended at 51 (1) Honorable. A separation from the FR 44909, Dec. 15, 1986] naval service with honor. The issuance of an Honorable Discharge is contin- § 724.110 Reason/basis for administra- gent upon proper military behavior and tive discharge. performance of duty. The terms ‘‘reason for discharge’’ and (2) Under Honorable Conditions (also ‘‘basis for discharge’’ have the same termed General Discharge). A separa- meaning. The first is a Navy term and tion from the naval service under hon- the second is a Marine Corps term. orable conditions. The issuance of a These terms identify why an adminis- discharge under honorable conditions trative discharge was issued, e.g., Con- is contingent upon military behavior venience of the Government, Mis- and performance of duty which is not conduct. Reasons/basis for discharge sufficiently meritorious to warrant an are found in the Naval Military Person- Honorable Discharge. nel Manual and Marine Corps Separa- (3) Under Other Than Honorable Condi- tion and Retirement Manual as well as tions (formerly termed Undesirable Dis- predecessor publications. charge). A separation from the naval service under conditions other than § 724.111 Punitive discharge. honorable. It is issued to terminate the A discharge awarded by sentence of a service of a member of the naval serv- court-martial. There are two types of ice for one or more of the reasons/basis punitive discharges: listed in the Naval Military Personnel (a) Bad conduct. A separation from Manual, Marine Corps Separation and the naval service under conditions Retirement Manual and their prede- other than honorable. It may be ef- cessor publications. fected only as a result of the approved (4) Entry Level Separation. (i) A sepa- sentence of a general or special court- ration initiated while a member is in martial. entry level status will be described as (b) Dishonorable. A separation from an Entry Level Separation except in the naval service under dishonorable the following circumstances: conditions. It may be effected only as a (a) When characterization under result of the approved sentence of a Other Than Honorable Conditions is general court-martial.
224
VerDate 25
§ 724.112 Clemency discharge. (a) Whose case is considered by the NDRB at the request of the former (a) The clemency discharge was cre- member, of, if authorized under ated by the President on September 16, § 724.113, the surviving spouse, next-of- 1974, in his Proclamation 4313, ‘‘An- kin or legal representative, or nouncing a Program for the Return of Vietnam Era Draft Evaders and Mili- (b) Whose case is considered on the tary Deserters.’’ Upon issuance to indi- NDRB’s own motion. viduals who have an undesirable dis- § 724.115 Next of kin. charge or a punitive discharge, a clem- ency discharge serves as a written tes- The person or persons in the highest timonial to the fact that the individual category of priority as determined by has satisfied the requirements of the the following list (categories appear in President’s program, and has fully descending order of priority): Surviv- earned his/her return to the main- ing legal spouse; children (whether by stream of American society in accord- current or prior marriage) age 18 years ance with that program. or older in descending precedence by (b) The clemency discharge is a neu- age; father or mother, unless by court tral discharge, neither honorable nor order custody has been vested in an- less than honorable. It does not effect a other (adoptive parent takes prece- change in the characterization of the dence over natural parent); siblings individual’s military service as havng (whole or half) age 18 years or older in been under other than honorable condi- descending precedence by age; grand- tion, nor does it serves to change, seal, father or grandmother; any other rel- erase or in any way modify the individ- ative (precedence to be determined in ual’s past military record. Therefore, if accordance with the civil law of de- the underlying discharge was issued as scent of the deceased former member’s a result of a general court-martial, the state of domicile at time of death). issuance of a Clemency Discharge does not subject the underlying character- § 724.116 Council/representative. ization to review under 10 U.S.C. 1553. An individual or agency designated Clemency discharges are issued by the by the applicant who agrees to rep- Commander, Naval Military Personnel resent the applicant in a case before Command or the Commandant of the the NDRB. It includes, but is not lim- Marine Corps when an individual has ited to: a lawyer who is a member of met the requirements of the Presi- the bar of a Federal Court or of the dential Proclamation. highest court of a State; an accredited representative designated by an organi- § 724.113 Application. zation recognized by the Administrator In the context of this Manual, a writ- of Veterans Affairs; a representative ten application to the NDRB for the re- from a State agency concerned with view of a discharge submitted by a veterans affairs; or a representative former member of the naval service or, from private organizations or local where a former member is deceased or Government agencies. incompetent, by spouse, next of kin or legal representative. Department of § 724.117 Discharge review. Defense Form 293 must be used for the A nonadversary administrative re- application. appraisal at the level of the Navy De- partment of discharges from the naval § 724.114 Applicant. service. The object of the reappraisal is A former member of the naval serv- to determine whether the discharge ice who has been discharged adminis- should be changed, and if so, the nature tratively in accordance with the direc- of the change. This reappraisal in- tives of the naval service or by sen- cludes the type and reason/basis for tence of a special court-martial under separation, the procedures followed in title 10 U.S.C. 801 et seq. (Uniform Code accomplishing separation, and the of Military Justice) and, in accordance characterization of service. This term with statutory and regulatory provi- includes determinations made under sions: the provisions of 38 U.S.C. 3103(2).
225
VerDate 25
§ 724.118 Documentary discharge re- § 724.123 Complainant. view. A former member of the Armed A formal session of the NDRB con- Forces (or the former member’s coun- vened for the purpose of reviewing, on sel) who submits a complaint under 32 the basis of documentary data, an ap- CFR Part 70 with respect to the plicant’s discharge. The Documentary decisional document issued in the data shall include the application to- former member’s own case; or a former gether with all information accom- member of the Armed Forces (or the panying that application, available former member’s counsel) who submits service and medical records, and any a complaint under reference (b) stating other information considered relevant that correction of the decisional docu- by the NDRB. ment will assist the former member in preparing for an administrative or judi- § 724.119 Personal appearance dis- cial proceeding in which the former charge review. member’s own discharge will be at A formal session of the NDRB con- issue. vened for the purpose of reviewing an applicant’s discharge on the basis of a Subpart B—Authority/Policy for personal appearance, as well as docu- Departmental Discharge Review mentary data. The personal appearance may be by the applicant or by a rep- § 724.201 Authority. resentative of the applicant, or both. The Naval Discharge Review Board, established pursuant to 10 U.S.C. 1553, § 724.120 National Capital Region is a component of the Naval Council of (NCR). Personnel Boards. By SECNAVINST The District of Columbia; Prince 5430.7L, the Assistant Secretary of the Georges and Montgomery Counties in Navy (Manpower and Reserve Affairs) Maryland; Arlington, Fairfax, is authorized and directed to act for Loudoun, and Prince William Counties the Secretary of the Navy within his in Virginia; and all cities and towns in- assigned area of responsibility and ex- cluded within the outer boundaries of ercises oversight over the Naval Coun- the foregoing counties. cil of Personnel Boards. SECNAVINST 5420.135C of July 15, 1983 states the or- § 724.121 Decisional document. ganization, mission, duties and respon- The written recordation of the appli- sibilities of the Naval Council of Per- cant’s summary of service, the issue or sonnel Boards to include the Naval Dis- issues presented together with any evi- charge Review Board. The Chief of dence offered in support of the applica- Naval Operations established the Office tion, the NDRB’s response to the issue of Naval Disability Evaluation and or issues, the votes of the members of Navy Council of Personnel Boards on 1 the panel, and any recommendations or October 1976 (OPNAVNOTE 5450 Ser responses by the President of the 09B26/535376 of 9 Sep 1976 (Canc frp: Apr NDRB or the Secretarial Reviewing 77)). The Chief of Naval Operations ap- Authority (SRA). The decisional docu- proved the change in name of the Of- ment is promulgated by the ‘‘en bloc fice of Naval Disability Evaluation and letter’’. Navy Council of Personnel Boards to Naval Council of Personnel Boards on 1 § 724.122 Recorder, NDRB Panel. February 1977 (OPNAVNOTE 5450 Ser A panel member responsible for brief- 09B26/32648 of 24 Jan 1977 (Canc frp: Jul ing an applicant’s case from the docu- 77)) with the following mission state- mentary evidence available prior to a ment: discharge review, presenting the brief To administer and supervise assigned to the panel considering the applica- boards and councils. tion, performing other designated func- tions during personal appearance dis- § 724.202 Statutory/Directive Author- charge hearings, and drafting the ity. decisional document subsequent to the The NDRB, in its conduct of dis- hearing. charge review, shall be guided by the
226
VerDate 25
applicable statutes, regulations, and session for the purpose of such use for manuals and directives of the Depart- those discharges executed as a result of ment of the Navy, and other written a case completed or in process on or be- public expressions of policy by com- fore July 7, 1971. (See appendix B). petent authority: (e) 32 CFR part 41. This prescribes pol- (a) 10 U.S.C. 1553, Review of discharge icy, standards and procedures which or dismissal: govern the administrative separation (1) ‘‘The Secretary concerned shall, of enlisted persons from the Armed after consulting the Administrator of Forces. Veterans’ Affairs, establish a board of review, consisting of five members, to § 724.203 Broad objectives of naval dis- review the discharge or dismissal charge review. (other than a discharge or dismissal by Naval discharge review shall have as sentence of a general court-martial) of its broad objectives: any former member of an armed force (a) The furtherance of good order and under the jurisdiction of his depart- discipline. ment upon its own motion or upon the (b) The correction of injustice or in- request of the former member or, if he equity in the discharge issued. is dead, his surviving spouse, next of (c) The correction of administrative kin, or legal representative. A motion or clerical errors. or request for review must be made within 15 years after the date of the § 724.204 Eligibility for naval dis- discharge or dismissal.’’ charge review. (2) A board established under this Any former member of the Naval section may, subject to review by the Service, eligible for review under ref- Secretary concerned, change a dis- erence (a) or surviving spouse, next of charge or dismissal, or issue a new dis- kin or legal representative, shall upon charge, to reflect its findings. submission of an application be af- (3) A review by the board established forded a review of the member’s dis- under this section shall be based on the charge from the Naval Service as pro- records of the armed forces concerned vided in §§ 724.205 and 724.206. Discharge and such other evidence as may be pre- review may also be initiated on the sented to the board. A witness may motion of the NDRB (See § 724.220). present evidence to the board in person or by affidavit. A person who requests § 724.205 Authority for review of naval a review under this section may appear discharges; jurisdictional limita- before the board in person or by coun- tions. sel or an accredited representative or an organization recognized by the Ad- (a) The Board shall have no authority ministrator of Veterans’ Affairs under to: title 38 U.S.C. 3401 et seq.’’. (1) Review a discharge or dismissal (b) Pub. L. 95–126. See appendix D. resulting from a general court-martial; (c) 32 CFR part 70. This provides for (2) Alter the judgment of a court- uniform standards and procedures for martial, except the discharge or dis- review of discharges from the military missal awarded may be changed for services of the Department of Defense. purposes of clemency; The provisions of 32 CFR part 70 are in- (3) Revoke any discharge or dismis- corporated in this Manual. sal; (d) The Secretary of Defense memo- (4) Reinstate a person in the naval randa dated August 13, 1971 and April 28, service; 1972 (NOTAL). These directed a review (5) Recall a former member to active for recharacterization of (1) adminis- duty; trative discharges under other than (6) Change a reenlistment code; honorable conditions issued solely on (7) Make recommendations for reen- the basis of personal use of drugs or listment to permit entry in the naval possession of drugs for the purpose of service or any other branch of the such use, and (2) punitive discharges Armed Forces; and dismissals issued solely for convic- (8) Cancel or void enlistment con- tion of personal use of drugs and pos- tracts; or
227
VerDate 25
(9) Change the reason for discharge § 724.209 Evidence supporting applica- from or to a physical disability tions. (b) Review of naval discharges shall In the absence of law, evidence or not be undertaken in instances where policy to the contrary, naval dis- the elapsed time between the date of charges shall be considered just, equi- discharge and the date of receipt of ap- table and proper as issued. When hear- plication for review exceeds fifteen ings are scheduled, applicants must be years. prepared to present their case at the scheduled time. In the absence of any § 724.206 Jurisdictional determina- other evidence, naval discharge review tions. shall be undertaken by examination of The determination as to whether the available service and health records of NDRB has jurisdiction in any case the applicant. Normally, the respon- shall be predicated on the policy stated sibility for presenting evidence from in § 724.205. Decisions shall be made by outside available service and health administrative action without referral records shall rest with the applicant. to the NDRB. Normally, they shall be Applications in which elements of rel- made by the Executive Secretary of the evant information are obviously omit- NDRB, or they may be referred to the ted will be returned for completion and President, NDRB. resubmission.
§ 724.207 Disposition of applications § 724.210 Review action in instances of for discharge review. unavailable records. One of three dispositions will be (a) In the event that Department of made of an application for review of a the Navy personnel or health records discharge: associated with a requested review of (a) The application may be rejected discharge are not located at the custo- for reason of: dial activity, the following action shall be taken by the NDRB prior to consid- (1) Absence of jurisdiction; eration of the request for discharge re- (2) Previous review on the same evi- view. dence; or (1) A certification that the records (b) The application may be with- are unavailable shall be obtained from drawn by the applicant; or the custodial activity. (c) The application may be accepted (2) The applicant shall be notified of and the discharge reviewed by the the situation and requested to provide NDRB, resulting in, such information and documents as (1) Change to the discharge, or may be desired in support of the re- (2) No change. quest for discharge review. A period of not less than 30 days shall be allowed § 724.208 Implementation of NDRB de- for such documents to be submitted. At cisions. the expiration of this time period, the The Commandant of the Marine review may be conducted with informa- Corps and the Chief of Naval Oper- tion available to the NDRB. ations are responsible for implement- (3) The presumption of regularity in ing Naval Discharge Review Board de- the conduct of government affairs may cisions within their respective services. be applicable in instances of unavail- The Commandant of the Marine Corps able records depending on the cir- shall be notified of decisions in each cumstances of the case. (See § 724.211) discharge review case and shall imple- (b) [Reserved] ment the decisions within the Marine Corps. The Commander, Naval Military § 724.211 Regularity of government af- Personnel Command, acting for the fairs. Chief of Naval Operations and Chief of There is a presumption of regularity Naval Personnel, shall be notified of in the conduct of governmental affairs. decisions in each discharge review case This presumption can be applied in any and shall implement the decisions review unless there is substantial cred- within the Navy. ible evidence to rebut the presumption.
228
VerDate 25
§ 724.212 Availability of records. fied and requested to provide such in- (a) Before applying for discharge re- formation and documents as may be view, potential applicants or their des- desired in support of the request for ignated representatives may obtain discharge review. A period of not less copies of their military personnel than 60 days shall be allowed for such records by submitting a General Serv- documents to be submitted. At the ex- ices Administration Standard Form piration of this period, the review may 180, ‘‘Request Pertaining to Military be conducted with information avail- Records,’’ to the National Personnel able to the NDRB. Records Center (NPRC), 9700 Page Bou- (d) The NDRB may take steps to ob- levard, St. Louis, MO 63132. Once the tain additional evidence that is rel- application for discharge review (DD evant to the discharge under consider- Form 293) is submitted, an applicant’s ation beyond that found in the official military records are forwarded to the military records or submitted by the NDRB where they cannot be repro- applicant, if a review of available evi- duced. Submission of a request for an dence suggests that it would be incom- applicant’s military records, including plete without the additional informa- a request under the Freedom of Infor- tion, or when the applicant presents mation Act (5 U.S.C. 552) or Privacy testimony or documents that require Act (5 U.S.C. 552a) after the DD Form additional information to evaluate 293 has been submitted, shall result properly. Such information shall be automatically in the temporary sus- made available to the applicant, upon pension of processing of the application request, with appropriate modifica- for discharge review until the re- tions regarding classified material. quested records are sent to an appro- (1) In any case heard on request of an priate location for copying, are copied, applicant, the NDRB shall provide the and are returned to the headquarters of applicant and counsel or representa- the NDRB. Processing of the applica- tive, if any, at a reasonable time before tion shall then be resumed at whatever initiating the decision process, a notice stage of the discharge review process is of the availability of all regulations practicable. Applicants are encouraged and documents to be considered in the to submit any request for their mili- tary records before applying for dis- discharge review, except for documents charge review rather than after sub- in the official personnel or medical mitting DD Form 293 to avoid delays in records and any documents submitted processing of applications and schedul- by the applicant. The NDRB shall also ing of reviews. Applicants and their notify the applicant or counsel or rep- counsel may also examine their mili- resentative: (a) of the right to examine tary personnel records at the site of such documents or to be provided with their scheduled review before the hear- copies of the documents upon request; ing. The NDRB shall notify applicants (b) of the date by which such requests of the dates the records are available must be received; and (c) of the oppor- for examination in their standard tunity to respond within a reasonable scheduling information. period of time to be set by the NDRB. (b) If the NDRB is not authorized to (2) When necessary to acquaint the provide copies of documents that are applicant with the substance of a clas- under the cognizance of another gov- sified document, the classifying au- ernment department, office, or activ- thority, on the request of the NDRB, ity, applications for such information shall prepare a summary of or an ex- must be made by the applicant to the tract from the document, deleting all cognizant authority. The NDRB shall references to sources of information advise the applicant of the mailing ad- and other matters, the disclosure of dress of the government department, which, in the opinion of the classifying office, or activity to which the request authority, would be detrimental to the should be submitted. national security interests of the (c) If the official records relevant to United States. Should preparation of the discharge review are not available such summary be deemed impractica- at the agency having custody of the ble by the classifying authority, infor- records, the applicant shall be so noti- mation from the classified source shall
229
VerDate 25
not be considered by the NDRB in its prior, timely request for a continu- review of the case. ation, postponement, or withdrawal. (e) Regulations of a military depart- (b) In such cases, the applicant shall ment may be obtained at many instal- be deemed to have waived the right to lations under the jurisdiction of the a hearing, and the NDRB shall com- Military Department concerned or by plete its review of the discharge. Fur- writing to the following address: DA ther request for a hearing shall not be Military Review Boards Agency, Atten- granted unless the applicant can dem- tion: SFBA (Reading Room), Room onstrate that the failure to appear or 1E520, The Pentagon, Washington, DC respond was due to circumstances be- 20310. yond the applicant’s control.
§ 724.213 Attendance of witnesses. § 724.217 Limitation—Reconsider- Arrangement for attendance of wit- ations. nesses testifying in behalf of the appli- A discharge review shall not be sub- cant at discharge review hearings is ject to reconsideration except: the responsibility of the applicant. The (a) When the only previous consider- NDRB is not authorized to subpoena or ation of the case was on the motion of otherwise require their presence. the NDRB; (b) When the original discharge re- § 724.214 Applicant’s expenses. view did not involve a personal hearing Unless otherwise specified by law or and a hearing is now desired, and the regulation, expenses incurred by the provisions of § 724.216 do not apply; applicant, witnesses, or counsel/rep- (c) When changes in discharge policy resentative will not be paid by the De- are announced after an earlier review partment of Defense. The NDRB is not of an applicant’s discharge, and the authorized to issue orders or other new policy is made expressly retro- process to enable the applicant to ap- active; pear in person. (d) When the NDRB determines that policies and procedures under which § 724.215 Military representation. the applicant was discharged differ in Military officers, except those acting material respects from policies and pursuant to specific detailing by appro- procedures currently applicable on a priate authorities desiring to act for or service-wide basis to discharges of the on behalf of an applicant in the presen- type under consideration, provided tation of a case before an NDRB Panel that such changes in policies or proce- are advised to consult legal counsel be- dures represent a substantial enhance- fore undertaking such representation. ment of the rights afforded an appli- Such representation may be prohibited cant in such proceedings; by 18 U.S.C. 205. (e) When an individual is to be rep- resented by counsel or representative, § 724.216 Failure to appear at a hear- and was not so represented in any pre- ing or respond to a scheduling no- vious consideration of the case by the tice. NDRB; (a) Except as otherwise authorized by (f) When the case was not previously the Secretary concerned, further op- considered under uniform standards portunity for a hearing shall not be published pursuant to Pub. L. 95–126 made available in the following cir- and such application is made within 15 cumstances to an applicant who has re- years after the date of discharge; or quested a hearing: (g) On the basis of presentation of (1) When the applicant has been sent new, substantial, relevant evidence not a letter containing the month and loca- available to the applicant at the time tion of a proposed hearing and fails to of the original review. The decision make a timely response; or whether evidence offered by an appli- (2) When the applicant, after being cant in support of a request for recon- notified by letter of the time and place sideration is in fact new, substantial, of the hearing, fails to appear at the relevant, and was not available to the appointed time, either in person or by applicant at the time of the original representative, without having made a review will be based on a comparison of
230
VerDate 25
such evidence with the evidence con- place. This notice shall normally be sidered in the previous discharge re- mailed thirty to sixty days prior to the view. If this comparison shows that the date of the hearing. If the applicant evidence submitted would have had a elects, this time limit may be waived probable effect on matters concerning and an earlier date set. the propriety or equity of the dis- (c) When an applicant requests a doc- charge, the request for reconsideration umentary review, the NDRB shall un- shall be granted. dertake the review as soon as prac- ticable. Normally, documentary re- § 724.218 Limitation—Continuance and views shall be conducted in the order in Postponements. which they are received. (a) A continuance of a discharge re- view hearing may be authorized by the § 724.222 Personal appearance dis- President of the NDRB or presiding of- charge hearing sites. ficer of the panel concerned, provided (a) The NDRB shall be permanently that such continuance is of reasonable located, together with its administra- duration and is essential to achieving a tive staff, in the NCR. The NDRB shall full and fair hearing. When a proposal routinely conduct personal appearance for continuance is indefinite, the pend- discharge reviews and documentary re- ing application shall be returned to the views at this, its permanent office. applicant with the option to resubmit (b) In addition, as permitted by avail- when the case is fully ready for review. (b) Postponements of scheduled re- able resources, NDRB Panels shall views normally shall not be permitted travel to other selected sites within other than for demonstrated good and the contiguous 48 states for the pur- sufficient reason set forth by the appli- pose of conducting reviews. The selec- cant in a timely manner or for the con- tion of sites and frequency of visits venience of the government. shall be predicated on the number of requests pending within a region and § 724.219 Withdrawal of application. the availability of resources. An applicant shall be permitted to § 724.223 NDRB support and aug- withdraw an application without preju- mentation by regular and reserve dice at any time before the scheduled activities. review, except that failure to appear for a scheduled hearing shall not be (a) When an NDRB Panel travels for construed or accepted as a withdrawal. the purpose of conducting hearings, it shall normally select Navy or Marine § 724.220 Review on motion of the Corps installations in the area visited NDRB. as review sites. Reviews of Naval discharges may be (b) The NDRB Traveling Board shall initiated by the NDRB on its own mo- normally consist of members from the tion (10 U.S.C. 1553) which includes re- NCPB and augmentees from regular views requested by the Veterans Ad- and reserve Navy and Marine Corps ministration under 38 U.S.C. 101, 3103 as sources, as required. amended by Pub. L. 95–126 of October 8, (c) Navy and Marine Corps activities 1977 (See Pub. L. 98–209). in the geographical vicinity of selected review sites shall provide administra- § 724.221 Scheduling of discharge re- tive support and augmentation to an views. NDRB Panel during its visit where (a) If an applicant requests a personal such assistance can be undertaken appearance discharge review, or to be without interference with mission ac- represented in absentia, the NDRB complishment. The NDRB shall coordi- shall provide a hearing in the NCR or nate requests for augmentees and ad- at another site within the forty-eight ministrative support through Com- contiguous states. mandant of the Marine Corps or the (b) The NDRB shall subsequently no- Chief of Naval Reserve, as appropriate. tify the applicant and representative (d) The administrative staff of the (if any) in writing of the proposed per- NCPB shall undertake all arrange- sonal appearance hearing time and ments for NDRB Traveling Panel visits
231
VerDate 25
and shall process associated review stated in the charge sheet; or that the documents. applicant/accused admitted guilt of the offense(s), then the presumption is § 724.224 Court-martial specifications, strengthened. In accordance with para- presumption concerning. graph B12f of enclosure (3) to 32 CFR (a) Relevant and material facts stat- part 70 the presumption may be rebut- ed in a court-martial specification, ted by ‘‘substantial credible evidence.’’ shall be presumed by the NDRB Panel as established facts. With respect to a discharge or dismissal adjudged by a Subpart C—Director, Naval Coun- court-martial case tried under the Uni- cil of Personnel Boards and form Code of Military Justice, the ac- President Naval Discharge Re- tion may extend only to change in the view Board; Responsibilities in discharge or dismissal for purposes of Support of the Naval Dis- clemency. This policy only applies to cases filed with the discharge review charge Review Board board after December 6, 1983. § 724.301 Mission. (b) Relevant and material facts stat- ed in a court-martial specification, in To administer and supervise assigned the face of which the applicant re- boards and councils within the Depart- quested a discharge for the good of the ment of the Navy. service to avoid trial by court-martial, shall be considered in accordance with § 724.302 Functions: Director, Naval the following: Council of Personnel Boards. (1) If the applicant/accused was re- (a) Make recommendations to the quired to admit the facts contained in Secretary of the Navy regarding orga- the charge sheet, or if the discharge nization, tasking and resources of the authority was required to find that the NDRB and its associated administra- stated facts were true, then the NDRB tive support. can presume the truth of such facts, unless there is a substantial credible (b) Submit recommendations to the evidence to rebut this presumption; or Secretary of the Navy regarding policy (2) If the discharge in lieu of court- and procedures for discharge review. martial only required a valid preferral, (c) Provide administrative and cleri- the NDRB may presume that the signer cal support for NDRB. either had personal knowledge of, or (d) Inform the Secretary of the Navy had investigated the matters set forth, of matters of interest to him. and that the charges were true in fact (e) Maintain a system of records, in- to the best of the signer’s knowledge cluding as a minimum: and belief.1 The weight to be given this (1) Records specified for the NDRB as presumption in determining whether stipulated in the procedures prescribed the facts stated in the charge sheet are in subpart H of this Manual. true is a matter to be determined by (2) Records required for the adminis- the NDRB. To the extent that the dis- charge proceeding reflects an official tration of military and civilian person- determination that the facts stated in nel. the charge sheet are true; that the ap- (3) Files of correspondence received plicant/accused admitted the facts and issued. (f) Establish billet/position assign- 1 Charges may be preferred by any person ment criteria for the NDRB. subject to the Uniform Code of Military Jus- (g) Propose to the Secretary of the tice. The charges must be signed and sworn Navy, changes to this instruction. to before a commissioned officer authorized (h) Issue requisite precepts and re- to administer oaths, and shall state that the signer has personal knowledge of, or has in- move or add members to the NDRB vestigated the matters set forth therein; and from personnel detailed to serve on the that the charges are true in fact to the best Naval Council of Personnel Boards, or of the signer’s knowledge and belief. 10 from personnel otherwise made avail- U.S.C. 830 (1976) (Art. 30 Uniform Code of able. Military Justice).
232
VerDate 25
§ 724.303 Functions: President, Naval § 724.305 Functions of the CMC and Discharge Review Board. CNO. (a) Exercise primary cognizance In the case of Navy, CNMPC, under within the Department of the Navy for the CNP, shall discharge responsibil- matters relating to discharge review. ities of the CNO. (b) Supervise and direct the activi- (a) Provide and facilitate access by ties of the NDRB. the NDRB to service/health records and (c) Maintain appropriate liaison with other data associated with performance discharge review activities in other of duty of applicants. services (use Army Discharge Review (b) Advise the NDRB of developments Board as focal point for service coordi- in personnel management which may have a bearing on discharge review nation). judgments. (d) Maintain coordination with the (c) Implement the discharge review Commandant of the Marine Corps decisions of the NDRB and those of (Code M) and the Commander, Naval higher authority within respective Military Personnel Command in mat- areas of cognizance. ters associated with discharge review. (d) Include the record of NDRB pro- (e) In conformance with ceedings as a permanent part of the SECNAVINST 5211.5C, protect the pri- service record of the applicant in each vacy of individuals in connection with case. discharge review. (e) Where appropriate, recommend (f) Assure that NDRB functions are cases for the NDRB to review on its administered in accordance with the own motion. appropriate Secretary of the Navy in- (f) Provide qualified personnel as structions dealing with privacy and ac- NDRB members, recorders and admin- cess to information. istrative staff. (g) Convene the NDRB as authorized (g) Establish administrative proce- by the Secretary of the Navy. dures to ensure that if a member is sep- (h) Direct the movement of the arated from the Navy or the Marine NDRB Traveling Panel(s) on the basis Corps under other than fully honorable of regional hearing requests. conditions, the member is advised of: (i) Monitor the performance of the (1) The right to a review of his or her naval discharge review system. Make discharge under provisions of 10 U.S.C. recommendations for changes and im- 1553, and provements. Take action to avoid (2) The procedures for applying for delays in processing of individual dis- such a review. charge review actions. (h) Provide Navy and Marine Corps units and activities with information (j) Provide NDRB inputs for the on the mission of the Naval Discharge maintenance of a public reading file Review Board through entries in appro- and maintain associated NDRB indexes priate personnel administration direc- updated quarterly. tives.
§ 724.304 Responsibility for Depart- § 724.306 Functions of the Commander, ment of the Navy support of the Naval Medical Command. Naval Discharge Review Board. Under the CNO the The Commandant of the Marine COMNAVMEDCOM shall facilitate, as Corps; Commander, Naval Military required, access by the NDRB to health Personnel Command; Commander, records of applicants. Naval Reserve Force; Commander, Naval Medical Command; and chiefs of § 724.307 Functions of the Commander, other bureaus and offices of the De- Naval Reserve Force. partment of the Navy shall provide In the case of Navy, the support, as requested, to the Naval dis- COMNAVRESFOR shall discharge the charge review process. responsibilities of the CNO—
233
VerDate 25
(a) Upon request and within available Subpart E—Procedural Rights of resources, provide qualified inactive the Applicant and Administra- duty reservists to serve as members of tive Actions Preliminary to Dis- the NDRB. (b) Upon request, provide appropriate charge Review accommodations to the NDRB Travel- § 724.501 Procedural rights of the ap- ing Panels for purposes of conducting plicant. reviews at Naval and Marine Corps Re- serve Centers and aviation facilities. Each applicant has the following pro- cedural rights: (a) Within 15 years after the date of Subpart D—Principal Elements of discharge, to make a written request the Navy Department Dis- for review of the applicant’s discharge charge Review System if the discharge was other than the re- sult of a general court-martial. The re- § 724.401 Applicants. quest may include such other state- As defined in § 724.114. ments, affidavits, or documentation as desired. § 724.402 Naval Discharge Review (b) To have that review conducted by Board. the NDRB either in the NCR or other As defined in § 724.102. designated location, when a personal appearance discharge review is desired. § 724.403 President, Naval Discharge (c) To appear before the NDRB in per- Review Board. son, with or without counsel/represent- Supervises the Naval Discharge Re- ative; with counsel/representative con- view Board. (See subpart C). currence, to have counsel/representa- tive present the applicant’s case in the § 724.404 Director, Naval Council of absence of the applicant; or to have the Personnel Boards. review conducted based on records and Exercises adminstrative control and any additional documentation submit- oversight of the Naval discharge review ted by the applicant or counsel/rep- process. (See subpart C). resentative. (d) To request copies of any docu- § 724.405 Commandant of the Marine ments or other evidence to be consid- Corps or the Commander, Naval ered by the NDRB in the review of the Military Personnel Command. applicant’s discharge or dismissal Personnel managers of the Marine other than the documents or evidence Corps and the Navy; responsible for contained in the official record or sub- providing limited support to the Naval mitted by the applicant prior to the Discharge Review Board and for imple- conduct of the formal review and to be mentation of departmental discharge afforded an opportunity to examine review decisions. (See subpart C). such other documents or evidence or to be provided with copies of them. § 724.406 Commander, Naval Medical (e) To withdrawn the request for dis- Command. charge review without prejudice at any Custodian of Navy and Marine Corps time prior to the scheduled review, ex- health records. (See subpart C). cept that failure to appear for a sched- uled hearing shall not be construed or § 724.407 Commander, Naval Reserve accepted as a withdrawal. Force. (f) To request a continuance of the Manages Naval Reserve resources. review when the continuance is of a Responsible for providing limited sup- reasonable duration and essential to port to the Naval Discharge Review achieving a full and fair hearing. The Board. (See subpart C). request must indicate the reason why the continuance is required. § 724.408 Secretary of the Navy. (g) To request postponement of the The final authority within the De- discharge review for good and suffi- partment of the Navy in discharge re- cient reason set forth in a timely man- view. ner.
234
VerDate 25
(h) To request reconsideration of the ized individual as discussed in § 724.113 discharge review under the conditions of this Manual. set forth in § 724.217. (b) The application is to be accom- (i) To have access to the information panied by: to be considered by the NDRB prior to (1) A copy of the certificate of dis- the actual review of the applicant’s charge, if available; case. (2) A copy of the Armed Forces of the (j) To have the applicant’s right to United States Report of Transfer or privacy protected in any review con- Discharge (DD–214), if available; ducted by the NDRB. (3) Certification of death, incom- (k) When appearing personally before petency and evidence of relationship in the NDRB: applicable cases (§ 724.113); (1) To introduce witnesses, docu- (4) Other statements, affidavits, ments, and sworn or unsworn testi- depositions, documents and informa- mony. tion desired by the applicant to be con- (2) To present oral or written argu- sidered by the NDRB. ments personally or through counsel/ (c) Correspondence relating to review representative. of naval discharges should be addressed (l) To submit documents, affidavits, to: briefs or arguments in writing. When Naval Discharge Review Board, Suite 905— the counsel/representative appears in 801 North Randolph Street, Arlington, VA person before the NDRB, arguments 22203 may be presented orally. (d) NDRB telephone number is (202) (m) To state clearly and specifically 696–4881. the issue or issues which the applicant desires the NDRB to answer in writing. § 724.503 NDRB response to applica- These must be presented in writing on tion for discharge review. DD Form 293 by the applicant or coun- (a) The NDRB shall acknowledge re- sel/representative. ceipt of the application. (n) To have the applicant’s discharge (b) In the event a documentary re- reviewed under the standards of equity view is requested, the applicant shall and propriety outlined in subpart I. normally receive no further commu- (o) To be provided with a written de- nication from the NDRB until notified cision on the applicant’s review. of the decision in the case. (p) If the case is to be forwarded for (c) In the event a personal appear- Secretarial review, to present a timely ance discharge review is requested, the statement rebutting any findings, con- applicant shall be notified of the pro- clusions, or reasons of the NDRB or the posed time and place of this review and President, NDRB, which are alleged to shall be advised of the availability of be erroneous on the facts, against the the official documents to be considered substantial weight of the evidence, or by the NDRB. contrary to law or governing regula- (d) A copy of NDRB correspondence tion, prior to that Secretarial review. to an applicant shall be sent to the rep- resentative of record, if any. § 724.502 Actions to be taken by the applicant preliminary to discharge § 724.504 NDRB actions preliminary to review. discharge review. (a) Application for Review of Discharge (a) When each application for dis- or Dismissal from the Armed Forces of the charge review is received by the NDRB, United States, DD Form 293 must be the service record and health record of used in requesting a discharge review. the applicant will be requested from DD Form 293 is available at most mili- the appropriate record custodian. tary installations and regional offices (b) Upon receipt, each record of serv- of the Veterans Administration. This ice will be reviewed to determine form is to be signed personally by the whether or not the applicant appears applicant. In the event the discharged to have been discharged under cir- individual is deceased or incompetent, cumstances which might act as a bar the form must be signed by an author- to Veterans’ Administration benefits
235
VerDate 25
under 38 U.S.C. 3103. These cir- cated on the number of pending appli- cumstances of discharge are: cations accumulated from a given geo- (1) Discharge or dismissal by reason graphical area and the resources avail- of the sentence of a general court-mar- able to support distant personal ap- tial. pearance reviews. The NDRB does not (2) Discharge as a conscientious ob- maintain facilities other than at its jector who refused to perform military NCR offices. The primary sites of NCR duty, to wear the uniform or otherwise are: Chicago, IL; Dallas, TX; and San to comply with lawful orders of com- Francisco, CA. petent military authority. (3) Discharge as a deserter. § 724.602 Mission. (4) Discharge on the basis, or as part To decide, in accordance with stand- of the basis, of an absence without au- ards of naval law and discipline and the thority from active duty for a continu- standards for discharge review set ous period of at least 180 days, if such forth in subpart I, whether a discharge discharge was under conditions other or dismissal from the naval service is than honorable. Additionally, such ab- proper and equitable, or whether it sence is computed without regard to should be changed. the applicant’s normal or adjusted ex- piration of term of service. § 724.603 Functions. (5) Discharge or dismissal of an offi- cer based on acceptance of the officer’s (a) Meet as frequently as necessary resignation for the good of the service. to provide expeditious review of naval (6) Discharge, on his/her own applica- discharges. tion, during a period of hostilities, as (b) Meet at locations within the 48 an alien. contiguous states as determined appro- (c) If it appears that the applicant priate on the basis of the number of was discharged under one or more of discharge review applications received the circumstances outlined in from various geographical areas and of § 724.504b, a written notification will be available resources and facilities. sent which informs the applicant that: (c) Review applications for review of (1) An initial service record review discharges. reveals that the discharge may have (d) In consonance with directives of been awarded under circumstances higher authority and the policies set which make the applicant ineligible for forth in this Manual, grant or deny receipt of VA benefits regardless of any change of discharges. action taken by the NDRB. (e) Promulgate decisions in a timely (2) Separate action by the Board for manner. Correction of Naval Records (BCNR) (f) Maintain a system of records. and/or the VA, in case of 180 days con- (g) Maintain liaison in discharge re- secutive UA disqualification, may con- view matters with: fer eligibility for VA benefits. Instruc- (1) General Counsel of the Navy. tions for making application to the (2) Commandant of the Marine Corps. BCNR and for contacting the VA are (3) Chief of Naval Operations. provided. (i) Commander, Naval Reserve Force. (ii) Commander, Naval Medical Com- Subpart F—Naval Discharge Re- mand. view Board Mission and Func- (iii) Commander, Naval Military Per- tions sonnel Command, under the Chief of Naval Personnel. § 724.601 General. (4) Judge Advocate General of the The NDRB is a component of the Navy. Naval Council of Personnel Boards and (5) Veterans’ service organizations. has its offices located in the NCR. The (6) Discharge review boards of the NDRB conducts documentary reviews other services, using the Army Dis- and personal appearance reviews in the charge Review Board as the focal point NCR and, on a traveling basis, at se- for service coordination. lected sites within the 48 contiguous (h) Protect the privacy of individuals states. Regional site selection is predi- whose records are reviewed.
236
VerDate 25
(i) Maintain for public access a read- NDRB may request advisory opinions ing file and associated index of records from staff offices of the Department of of NDRB proceedings in all reviews un- the Navy, including, but not limited to dertaken subsequent to July 1, 1975. the General Counsel and the Judge Ad- vocate General. Subpart G—Organization of the Naval Discharge Review Board Subpart H—Procedures of Naval Discharge Review Board § 724.701 Composition. The NDRB acting in plenary review § 724.801 Matters to be considered in session shall be composed of five mem- discharge review. bers. Normally the members shall be In the process of its review of dis- career military officers, assigned to charges, the NDRB shall examine the Naval Council of Personnel Boards available records and pertinent regula- or otherwise made available; inactive tions of the Department of the Navy, duty officers of the Navy and Marine together with such information as may Corps Reserve may serve as members be presented by the applicant and/or when designated to do so by the Presi- representative, which will normally in- dent, NDRB. clude: (a) Presiding officers of the NDRB (a) The application for discharge re- shall normally be Navy or Marine view; Corps officers in the grade of Captain/ (b) Statements, affidavits or docu- Colonel or above. mentation, if any, accompanying the (b) The remaining NDRB membership application or presented during hear- shall normally be not less than the ings; grade of Lieutenant Commander/Major (c) Testimony, if any, presented dur- with preference being given to senior ing hearings; grades. (d) Service and health records; (c) At least three of the five members (e) A brief of pertinent facts ex- of the NDRB shall belong to the service tracted from the service and health from which the applicant whose case is records, prepared by the NDRB re- under review was discharged. corder. (d) Individual membership in the NDRB may vary within the limitations § 724.802 Applicant’s responsibilities. of the prescribed composition. (a) Request for change of discharge. An (e) Any member of a panel of the applicant may request a change in the NDRB other than the presiding officer character of or reason for discharge (or may act as recorder for cases assigned. both). The recorder will participate as a vot- (1) Character of discharge. Block 7 of ing member of the panel. DD Form 293 provides an applicant an opportunity to request a specific § 724.702 Executive management. change in character of discharge (for The administrative affairs of the example, General Discharge to Honor- NDRB shall be managed by the Execu- able Discharge; Other than Honorable tive Secretary. This responsibility Discharge to General or Honorable Dis- shall include schedules, records, cor- charge). A person separated on or after respondence and issuance of NDRB de- 1 October 1982 while in an entry level cisions. status may request a change from Other Than Honorable Discharge to § 724.703 Legal counsel. Entry Level Separation. A request for Normally, the NDRB shall function review from an applicant who does not without the immediate attendance of have an Honorable Discharge will be legal counsel. In the event that a legal treated as a request for a change to an advisory opinion is deemed appropriate Honorable Discharge unless the appli- by the NDRB, such opinion shall be ob- cant requests a specific change to an- tained routinely by reference to the other character of discharge. senior Judge Advocate assigned to the (2) Reason for discharge. Block 7 of DD Office of the Director, Naval Council of Form 293 provides an applicant an op- Personnel Boards. In addition, the portunity to request a specific change
237
VerDate 25
in the reason for discharge. If an appli- those matters that, in the option of the cant does not request a specific change applicant, provide a basis for changing in the reason for discharge, the NDRB the discharge; will presume that the request for re- (B) Assists the NDRB in focusing on view does not involve a request for those matters considered to be impor- change in the reason for discharge. tant by an applicant; Under its responsibility to examine the (C) Assists the NDRB in distinguish- propriety and equity of an applicant’s ing between a matter submitted by an discharge, the NDRB will change the applicant in the expectation that it reason for discharge if such a change is will be treated as a decisional issue, warranted. and those matters submitted simply as (3) The applicant must ensure that background or supporting materials; issues submitted to the NDRB are con- (D) Provides the applicant with sistent with the request for change in greater rights in the event that the ap- discharge set forth in block 7 of the DD plicant later submits a complaint con- Form 293. If an ambiguity is created by cerning the decisional document; a difference between and applicant’s (E) Reduces the potential for dis- issue and the request in block 7, the agreement as to the content of an ap- NDRB will respond to the issue in the plicant’s issue. context of the action requested in (iv) Incorporation by reference. If the block 7. In the case of a personal ap- applicant makes an additional written pearance hearing, the NDRB will at- submission, such as a brief, in support tempt to resolve the ambiguity under of the application, the applicant may § 724.802(c). incorporate by reference specific issues (b) Request for consideration of specific set forth in the written submission in issues. An applicant may request the accordance with the guidance on DD Board to consider specific issues which, Form 293. The reference shall be spe- in the opinion of the applicant, form a cific enough for the NDRB to identify basis for changing the character of or clearly the matter being submitted as reason for discharge, or both. In addi- an issue. At a minimum, it shall iden- tion to the guidance set forth in this tify the page, paragraph, and sentence section, applicants should consult the incorporated. Because it is to the appli- other sections in this manual before cant’s benefit to bring such issues to submitting issues for consideration by the NDRB’s attention as early as pos- the Board. sible in the review, applicants who sub- (1) Submission of issues on DD Form mit a brief are strongly urged to set 293. Issues must be provided to the forth all such issues as a separate item NDRB on DD Form 293 (82 Nov) before at the beginning of the brief. If it rea- the NDRB closes the review process for sonably appears that the applicant in- deliberation. advertently failed expressly to incor- (i) Issues must be clear and specific. An porate an issue which the applicant issue must be stated clearly and spe- clearly identifies as an issue to be ad- cifically in order to enable the NDRB dressed by the NDRB, the NDRB shall to understand the nature of the issue respond to such an issue. (See §§ 724.805 and its relationship to the applicant’s and 724.806.) discharge. (v) Effective date of the new Form DD (ii) Separate listing of issues. Each 293. With respect to applications pend- issue submitted by an applicant should ing (before November 1982, the effective be listed separately. Submission of a date of the new DD Form 293), the separate statement for each issue pro- NDRB shall consider issues clearly and vides the best means of ensuring that specifically stated in accordance with the full import of the issue is conveyed the rules in effect at the time of sub- to the NDRB. mission. With respect to applications (iii) Use of DD Form 293. DD Form 293 received after November 1982, if the ap- provides applicants with a standard plicant submits an obsolete DD Form format for submitting issues to the 293, the NDRB shall accept the applica- NDRB, and its use: tion, but shall provide the applicant (A) Provides a means for an applicant with a copy of the new form and advise to set forth clearly and specifically the applicant that it will only respond
238
VerDate 25
to issues submitted on the new form in quately of the basis for the applicant’s accordance with this instruction. position. (2) Relationship of issues to character of (iii) The applicant’s identification of an or reason for discharge. If the applica- issue. The applicant is encouraged, but tion applies to both character of and not required, to specify that each issue reason for discharge, the applicant is pertains to the propriety or the equity encouraged, but not required, to iden- of the discharge. This will assist the tify the issue as applying to either the NDRB in assessing the relationship of character of or the reason for discharge the issue to propriety or equity. (or both). Unless the issue is directed (4) Citation of matter from decisions. at the reason for discharge expressly or The primary function of the NDRB in- by necessary implication, the NDRB volves the exercise of discretion on a will presume that it applies solely to case-by-case basis. Applicants are not the character of discharge. required to cite prior decisions as the (3) Relationship of issues to the stand- basis for a change in discharge. If the ards for discharge review. The NDRB re- views discharges on the basis of issues applicant wishes to bring the NDRB’s of propriety and equity. The standards attention to a prior decision as back- used by the NDRB are set forth in ground or illustrative material, the ci- § 724.804. The applicant is encouraged to tation should be placed in a brief or review those standards before submit- other supporting documents. If, how- ting any issue upon which the appli- ever, it is the applicant’s intention to cant believes a change in discharge submit an issue that sets forth specific should be based. principles and facts from a specific (i) Issues concerning the equity of the cited decision, the following require- discharge. An issue of equity is a mat- ments with respect to applications re- ter that involves a determination ceived on or after November 27, 1982 whether a discharge should be changed apply: under the equity standards of this part. (i) The issue must be set forth or ex- This includes any issue, submitted by pressly incorporated in the ‘‘Appli- the applicant in accordance with cant’s Issue’’ portion of DD Form 293. § 724.802(b)(1), that is addressed to the (ii) If an applicant’s issue cites a discretionary authority of the NDRB. prior decision (of the NDRB, another (ii) Issues concerning the propriety of a Board, an agency, or a court), the ap- discharge. An issue of propriety is a plicant shall describe the specific prin- matter that involves a determination ciples and facts that are contained in whether a discharge should be changed the prior decision and explain the rel- under the propriety standards of this evance of cited matter to the appli- part. This includes an applicant’s issue, cant’s case. submitted in accordance with § 724.802(b)(1), in which the applicant’s (iii) To ensure timely consideration position is that the discharge must be of principles cited from unpublished changed because of an error in the dis- opinions (including decisions main- charge pertaining to a regulation, stat- tained by the Armed Forces Discharge ute, constitutional provision, or other Review Board/Corrective Board Read- source of law (including a matter that ing Room), applicants must provide the requires a determination whether, NDRB with copies of such decisions or under the circumstances of the case, of the relevant portion of the treatise, action by military authorities was ar- manual or similar source in which the bitrary, capricious, or an abuse of dis- principles were discussed. At the appli- cretion). Although a numerical ref- cant’s request, such materials will be erence to the regulation or other returned. sources of law alleged to have been vio- (iv) If the applicant fails to comply lated is not necessarily required, the with requirements in § 724.802(b)(4), the context of the regulation or a descrip- decisional document shall note the de- tion of the procedures alleged to have fect, and shall respond to the issue been violated normally must be set without regard to the citation. forth in order to inform the NDRB ade-
239
VerDate 25
(c) Identification by the NDRB of issues (a) The circumstances and character submitted by an applicant. The appli- of the applicant’s service as extracted cant’s issues shall be identified in ac- from available service records, includ- cordance with this section after a re- ing health records, and information view of the materials noted under provided by other government authori- § 924.803, is made. ties or the applicant, such as, but not (1) Issues on DD Form 293. The NDRB limited to: shall consider all items submitted as (1) Information concerning the dis- issues by an applicant on DD Form 293 charge under review, including: (or incorported therein). (i) Date (YYMMDD) of discharge; (2) Amendment of issues. The NDRB (ii) Character of discharge; shall not request or instruct an appli- (iii) Reason for discharge; cant to amend or withdraw any matter (iv) The specific regulatory authority submitted by the applicant. Any under which the discharge was issued; amendment or withdrawal of an issue (v) Date (YYMMDD) of enlistment; by an applicant shall be confirmed in (vi) Period of enlistment; writing by the applicant. Nothing in (vii) Age at enlistment; this provision: (viii) Length of service; (i) Limits the NDRB’s authority to (ix) Periods of unauthorized absence; question an applicant as to the mean- (x) Conduct and efficiency ratings ing of such matter; (numerical or narrative); (ii) Precludes the NDRB from devel- oping decisional issues based upon such (xi) Highest rank achieved; questions; (xii) Awards and decorations; (iii) Prevents the applicant from (xiii) Educational level; amending or withdrawing such matter (xiv) Aptitude test scores; any time before the NDRB closes the (xv) Incidents of punishment pursu- review process for deliberation; or ant to Article 15, Uniform Code of Mili- (iv) Prevents the NDRB from present- tary Justice (including nature and date ing an applicant with a list of proposed (YYMMDD) of offense or punishment); decisional issues and written informa- (xvi) Convictions by court-martial; tion concerning the right of the appli- (xvii) Prior military service and type cant to add to, amend, or withdraw the of discharge received. applicant’s submission. The written in- (2) Any other matters in the appli- formation will state that the appli- cant’s record which pertains to the dis- cant’s decision to take such action (or charge or the issues, or provide a clear- decline to do so) will not be used er picture of the overall quality of the against the applicant in the consider- applicant’s service. ation of the case. (b) A list of the type of documents (3) Additional issues identified during a submitted by or on behalf of the appli- hearing. The following additional pro- cant (including written briefs, letters cedure shall be used during a hearing of recommendation, affidavits concern- in order to promote the NDRB’s under- ing the circumstances of the discharge, standing of an applicant’s presen- or other documentary evidence), if any. tation. If, before closing the case for (c) A statement whether the appli- deliberation, the NDRB believes that cant testified, and a list of the type of an applicant has presented an issue not witnesses, if any , who testified on be- listed on DD Form 293, the NDRB may half of the applicant. so inform the applicant, and the appli- (d) A notation whether the applica- cant may submit the issue in writing tion pertained to the character of dis- or add additional written issues at that charge, the reason for discharge, or time. This does not preclude the NDRB both. from developing its own decisional (e) A list of the items submitted as issues. issues on DD Form 293 or expressly in- corporated therein and such other § 724.803 The decisional document. items submitted as issues by the appli- A decisional document shall be pre- cant that are identified as inadvert- pared for each review. At a minimum, ently omitted. If the issues are listed this document shall contain: verbatim on DD Form 293, a copy of the
240
VerDate 25
relevant portion of the form may be at- review. The presiding officer shall con- tached. Issues that have been with- vene, recess, and adjourn the NDRB drawn or modified with the written panel as appropriate and shall main- consent of the applicant need not be tain an atmosphere of dignity and de- listed. corum at all times. (f) The response to the items submit- (c) Each NDRB member shall act ted as issues by the applicant. under oath or affirmation requiring (g) A list of decisional issues and a careful, objective consideration of the discussion of such issues. application. NDRB members are re- (h) NDRB’s conclusions on the fol- sponsible for eliciting all facts nec- lowing: essary for a full and fair review. They (1) Whether the character of or rea- shall consider all information pre- son for discharge should be changed. sented to them by the applicant. In ad- (2) The specific changes to be made, dition, they shall consider available if any. military service and health records, to- (i) A record of the voting, including: gether with other records that may be (1) The number of votes for the in the files of the military department NDRB’s decision and the number of concerned and relevant to the issues votes in the minority, if any. before the NDRB, and any other evi- (2) The NDRB members’ names and dence obtained in accordance with this votes. The copy provided to the appli- Manual. cant may substitute a statement that (d) The NDRB shall identify and ad- the names and votes will be made dress issues after a review of the fol- available to the applicant at the appli- cant’s request. lowing material obtained and presented (j) Advisory opinions, including those in accordance with this Manual and containing factual information, when any implementing instructions of the such opinions have been relied upon for NDRB: available official records, docu- final decision or have been accepted as mentary evidence submitted by or on a basis for rejecting any of the appli- behalf of an applicant, presentation of cant’s issues. Such advisory opinions a hearing examination, testimony by or relevant portions that are not fully or on behalf of an applicant, oral or set forth in the discussion of decisional written arguments presented by or on issues or otherwise in response to behalf of an applicant, and any other items submitted as issues by the appli- relevant evidence. cant shall be incorporated by reference. (e) If an applicant who has requested A copy of opinions incorporated by ref- a hearing does not respond to a notifi- erence shall be appended to the deci- cation letter or does not appear for a sion and included in the record of pro- scheduled hearing, the NDRB may ceedings. complete the review on the basis of ma- (k) The recommendation of the terial previously submitted and avail- NDRB president when required. able service records. (l) The addendum of the SRA when (f) Application of standards. (1) When required. the NDRB determines that an appli- (m) Index entries for each decisional cant’s discharge was improper, the issue under appropriate categories list- NDRB will determine which reason for ed in the index of decisions. discharge should have been assigned (n) An authentication of the docu- based upon the facts and circumstances ment by an appropriate official. before the discharge authority, includ- ing the service regulations governing § 724.804 Decision process. reasons for discharge at the time the (a) The NDRB or the NDRB panel, as applicant was discharged. Unless it is appropriate, shall meet in plenary ses- also determined that the discharge was sion to review discharges and exercise inequitable, the provisions as to the its discretion on a case-by-case basis in characterization in the regulation applying the standard set forth in sub- under which the applicant should have part I. been discharged will be considered in (b) The presiding officer is respon- determining whether further relief is sible for the conduct of the discharge warranted.
241
VerDate 25
(2) When the NDRB determines that (1) When the NDRB decides that a an applicant’s discharge was inequi- change in discharge should be granted, table, any change will be based on the and the NDRB bases its decision in evaluation of the applicant’s overall whole or in part on the applicant’s record of service and relevant regula- issue; or tions of the service of which the appli- (2) When the NDRB does not provide cant was a member. the applicant with the full change in (g) Voting shall be conducted in discharge requested, and the decision is closed session, a majority of the votes based in whole or in part on the of the five members constituting the NDRB’s disagreement on the merits NDRB decision. with an issue submitted by the appli- (h) Details of closed session delibera- cant. tions of the NDRB are priviledged in- (c) Response to items not addressed as formation and shall not be divulged. decisional issues. (1) If the applicant re- (i) There is no requirement for a ceives the full change in discharge re- statement of minority views in the quested (or a more favorable change), event of a split vote. that fact shall be noted and the basis shall be addressed as a decisional issue. (j) The NDRB may request advisory No further response is required to opinions from appropriate staff officers other issues submitted by the appli- of the naval service. These opinions are cant. advisory in nature and are not binding (2) If the applicant does not receive on the NDRB in its decision-making the full change in discharge requested process. with respect to either the character of (k) The preliminary determinations or reason for discharge (or both), the required by 38 U.S.C. 3103(e) shall be NDRB shall address the items submit- made upon majority vote of the NDRB ted by the applicant under § 724.806, concerned on an expedited basis. Such (Decisional Issues) unless one of the determination shall be based upon the following responses is applicable: standards set forth in this Manual. (i) Duplicate issues. The NDRB may state that there is a full response to § 724.805 Response to items submitted as issues by the applicant. the issue submitted by the applicant under a specified decisional issue. This (a) General guidance. (1) If any issue response may be used only when one submitted by an applicant contains issue clearly duplicates another or the two or more clearly separate issues, issue clearly requires discussion in con- the NDRB should respond to each issue junction with another issue. under the guidance of this paragraph as (ii) Citations without principles and if it had been set forth separately by facts. The NDRB may state that the ap- the applicant. plicant’s issue, which consists of a cita- (2) If an applicant uses a ‘‘building tion to a decision without setting forth block’’ approach (that is, setting forth any principles and facts from the deci- a series of conclusions on issues that sion that the applicant states are rel- lead to a single conclusion purportedly evant to the applicant’s case, does not warranting a change in the applicant’s comply with the requirements of discharge), normally there should be a § 724.802(b)(4). separate response to each issue. (iii) Unclear issues. The NDRB may (3) Nothing in this paragraph pre- state that it cannot respond to an item cludes the NDRB from making a single submitted by the applicant as an issue response to multiple issues when such because the meaning of the item is un- action would enhance the clarity of the clear. An issue is unclear if it cannot decisional document, but such response be understood by a reasonable person must reflect an adequate response to familiar with the discharge review each separate issue. process after a review of the materials (b) Decisional issues. An item submit- considered. ted as an issue by an applicant in ac- (iv) Nonspecific issues. The NDRB may cordance with this Manual shall be ad- state that it cannot respond to an item dressed as a decisional issue in the fol- submitted by the applicant as an issue lowing circumstances: because it is not specific. A submission
242
VerDate 25
is considered not specific if a reason- as a matter of law), the NDRB shall able person familiar with the discharge consider the issue solely as a matter of review process after a review of the propriety. Except as provided in materials considered cannot determine § 724.806(a)(3)(d), the NDRB is not re- the relationship between the appli- quired to consider such an issue under cant’s submission and the particular the equity standards. circumstances of the case. This re- (iii) If the applicant’s issue contends sponse may be used only if the submis- that the NDRB is required as a matter sion is expressed in such general terms of law to follow a prior decision by set- that no other response is applicable. ting forth an issue of propriety from For example, if the NDRB disagrees the prior decision and describing its re- with the applicant as to the relevance lationship to the applicant’s case, the of matters set forth in the submission, issue shall be considered under the pro- the NDRB normally will set forth the priety standards and addressed under nature of the disagreement with re- § 724.806 (a) or (b). spect to decisional issues, or it will re- (iv) If the applicant’s issue sets forth ject the applicant’s position. If the ap- principles of equity contained in a plicant’s submission is so general that prior NDRB decision, describes the re- none of those provisions is applicable, lationship to the applicant’s case, and then the NDRB may state that it can- contends that the NDRB is required as not respond because the item is not a matter of law to follow the prior specific. case, the decisional document shall § 724.806 Decisional issues. note that the NDRB is not bound by its discretionary decisions in prior cases. (a) General. Under the guidance in However, the principles cited by the this section, the decisional document applicant, and the description of the shall discuss the issues that provide a relationship of the principles to the ap- basis for the decision whether there plicant’s case, shall be considered and should be a change in the character of addressed under the equity standards. or reason for discharge. In order to en- (v) If the applicant’s issue cannot be hance clarity, the NDRB should not ad- identified as a matter of propriety or dress matters other than issues relied equity, the NDRB shall address it as an upon in the decision or raised by the issue of equity. applicant. (1) Partial change. When the decision (b) Change of discharge: issues of pro- changes a discharge, but does not pro- priety. If a change in the discharge is vide the applicant with the full change warranted under the propriety stand- in discharge requested, the decisional ards, the decisional document shall document shall address both the issues state that conclusion and list the er- upon which change is granted and the rors of expressly retroactive changes in issues upon which the NDRB denies the policy or violations of regulations that full change requested. provide a basis for the conclusion. The (2) Relationship of issue of character of decisional document shall cite the or reason for discharge. Generally, the facts in the record that demonstrate decisional document should specify the relevance of the error or change in whether a decisional issue applies to policy to the applicant’s case. If the the character of or reason for discharge change in discharge does not constitute (or both), but it is not required to do the full change requested by the appli- so. cant, the reasons for not granting the (3) Relationship of an issue to propriety full change shall be set forth. or equity. (i) If an applicant identifies (c) Denial of the full change requested: an issue as pertaining to both propri- issues of propriety. (1) If the decision re- ety and equity, the NDRB will consider jects the applicant’s position on an it under both standards. issue of propriety, of if it is otherwise (ii) If an applicant identifies an issue decided on the basis of an issue of pro- as pertaining to the propriety of the priety that the full change in discharge discharge (for example, by citing a pro- requested by the applicant is not war- priety standard or otherwise claiming ranted, the decisional document shall that a change in discharge is required note that conclusion.
243
VerDate 25
(2) The decisional document shall list plies in addition to the guidance in reasons for its conclusion on each issue § 724.806(c)(2) (a) and (b): of propriety under the following guid- (A) The NDRB may reject the appli- ance: cant’s position by explaining why it (i) If a reason is based in whole or in disagrees with the principles set forth part upon a regulation, statute, con- in the applicant’s issue (including prin- stitutional provision, judicial deter- ciples derived from cases cited by the mination, or other source of law, the applicant in accordance with NDRB shall cite the pertinent source of § 724.802(b)(4). law and the facts in the record that (B) The NDRB may reject the appli- demonstrate the relevance of the cant’s position by explaining why the source of law to the particular cir- principles set forth in the applicant’s cumstances in the case. issue (including principles derived from (ii) If a reason is based in whole or in cases cited by the applicant in accord- part on a determination as to the oc- ance with § 724.802(b)(4)) are not rel- currence or nonoccurrence of an event evant to the applicant’s case. or circumstances, including a factor re- (C) The NDRB may reject an appli- quired by applicable service regula- cant’s position by stating that the ap- tions to be considered for determina- plicant’s issue of propriety is not a tion of the character of and reason for matter upon which the NDRB grants a the applicant’s discharge, the NDRB change in discharge, and by providing shall make a finding of fact for each an explanation for this position. When such event or circumstance. the applicant indicates that the issue (A) For each such finding, the is to be considered in conjunction with decisional document shall list the spe- one or more other specified issues, the cific source of the information relied explanation will address all such speci- upon. This may include the presump- fied issues. tion of regularity in appropriate cases. (D) The NDRB may reject the appli- If the information is listed in the serv- cant’s position on the grounds that ice record section of the decisional doc- other specified factors in the case pre- ument, a citation is not required. clude granting relief, regardless of (B) If a finding of fact is made after whether the NDRB agreed with the ap- consideration of contradictory evi- plicant’s position. dence in the record (including informa- (E) If the applicant take the position tion cited by the applicant or other- that the discharge must be changed be- wise identified by members of the cause of an alleged error in a record as- NDRB), the decisional document shall sociated with the discharge, and the set forth the conflicting evidence and record has not been corrected by the explain why the information relied organization with primary responsibil- upon was more persuasive than the in- ity for corrective action, the NDRB formation that was rejected. If the pre- may respond that it will presume the sumption of regularity is cited as the validity of the record in the absence of basis for rejecting such information, such corrective action. If the organiza- the decisional document shall explain tion empowered to correct the record is why the contradictory evidence was in- within the Department of Defense, the sufficient to overcome the presump- NDRB should provide the applicant tion. In an appropriate case, the expla- with a brief description of the proce- nation as to why the contradictory evi- dures for requesting correction of the dence was insufficient to overcome the record. If the NDRB on its own motion presumption of regularity may consist cites this issue as a decisional issue on of a statement that the applicant failed the basis of equity, it shall address the to provide sufficient corroborating evi- issue. dence, or that the NDRB did not find (F) When an applicant’s issue con- the applicant’s testimony to be suffi- tains a general allegation that a cer- ciently credible to overcome the pre- tain course of action violated his or her sumption. constitutional rights, the NDRB may (iii) If the NDRB disagrees with the respond in appropriate cases by noting position of the applicant on an issue of that the action was consistent with propriety, the following guidance ap- statutory or regulatory authority, and
244
VerDate 25
by citing the presumption of constitu- tion on the issue of equity in the appli- tionality that attaches to statutes and cant’s case. regulations. If, on the other hand, the (ii) If a reason is based in whole or in applicant makes a specific challenge to part on a determination as to the oc- the constitutionality of the action by currence or nonoccurrence of an event challenging the application of a stat- or circumstance, including a factor re- ute or regulation in a particular set of quired by applicable service regula- circumstances, it is not sufficient to tions to be considered for determina- respond solely by citing the presump- tion of the character of and reason for tion of constitutionality of the statute the applicant’s discharge, the NDRB or regulation when the applicant is not shall make a finding of fact for each challenging the constitutionality of such event or circumstance. the statute or regulation. Instead, the (A) For each such finding, the response must address the specific cir- decisional document shall list the spe- cumstances of the case. cific source of the information relied (d) Denial of the full change in dis- upon. This may include the presump- charge requested when propriety is not at tion of regularity in appropriate cases. issue. If the applicant has not submit- If the information is listed in the serv- ted an issue of propriety and the NDRB ice record section of the decisional doc- has not otherwise relied upon an issue ument, a citation is not required. of propriety to change the discharge, (B) If a finding of fact is made after the decisional document shall contain consideration of contradictory evi- a statement to that effect. The NDRB dence in the record (including informa- is not required to provide any further tion cited by the applicant or other- discussion as to the propriety of the wise indentified by members of the discharge. NDRB), the decisional document shall (e) Change of discharge: issues of eq- set forth the conflicting evidence and uity. If the NDRB concludes that a explain why the information relied change in the discharge is warranted upon was more persuasive than the in- under the equity standards, the formation that was rejected. If the pre- decisional document shall list each sumption of regularity is cited as the issue of equity upon which this conclu- basis for rejecting such information, sion is based. The NDRB shall cite the the decisional document shall explain facts in the record that demonstrate why the contradictory evidence was in- the relevance of the issue to the appli- sufficient to overcome the presump- cant’s case. If the change in discharge tion. In an appropriate case, the expla- does not constitute the full change re- nation as to why the contradictory evi- quested by the applicant, the reasons dence was insufficient to overcome the for not giving the full change requested presumption of regularity may consist shall be discussed. of a statement that the applicant failed (f) Denial of the full change in dis- to provide sufficient corroborating evi- charge requested: issues of equity. (1) If dence, or that the NDRB did not find the NDRB rejects the applicant’s posi- the applicant’s testimony to be suffi- tion on an issue of equity, or if the de- ciently credible to overcome the pre- cision otherwise provides less than the sumption. full change in discharge requested by (iii) If the NDRB disagrees with the the applicant, the decisional document postion of the applicant on an issue of shall note that conclusion. equity, the following guidance applies (2) The NDRB shall list reasons for in addition to the guidance in para- its conclusion on each issue of equity graphs above: under the following guidance: (A) The NDRB may reject the appli- (i) If a reason is based in whole or in cant’s position by explaining why it part upon a regulation, statute, con- disagrees with the principles set forth stitutional provision, judicial deter- in the applicant’s issue (including prin- mination, or other source of law, the ciples derived from cases cited by the NDRB shall cite the pertinent source of applicant). law and the facts in the record that (B) The NDRB may reject the appli- demonstrate the relevance of the cant’s position by explaining why the source of law to the exercise of discre- principles set forth in the applicant’s
245
VerDate 25
issue (including principles derived from service record portion of the decisional cases cited by the applicant) are not document. relevant to the applicant’s case. (C) The NDRB may reject an appli- § 724.807 Record of NDRB proceedings. cant’s position by explaining why the (a) When the proceedings in any re- applicant’s issue is not a matter upon view have been concluded, a record which the NDRB grants a change in thereof will be prepared. Records may discharge as a matter of equity. When include written records, electro- the applicant indicates that the issue magnetic records, audio and/or video- is to be considered in conjunction with tape recordings, or a combination. other specified issues, the explanation (b) At a minimum, the record will in- will address all such specified issues. clude the following: (D) The NDRB may reject the appli- (1) The application for review; cant’s position on the grounds that (2) A record of the testimony in ei- other specified factors in the case pre- ther verbatim, summarized, or re- clude granting relief, regardless of corded form at the option of the NDRB; whether the NDRB agrees with the ap- (3) Documentary evidence or copies, plicant’s position. other than the military service record (E) If the applicant takes the posi- considered by the NDRB; tion that the discharge should be (4) Briefs and arguments submitted changed as a matter of equity because by or on behalf of the applicant; of an alleged error in a record associ- (5) Advisory opinions considered by the NDRB, if any: ated with the discharge, and the record (6) The findings, conclusions, and rea- has not been corrected by the organiza- sons developed by the NDRB; tion with primary responsibility for (7) Notification of the NDRB’s deci- corrective action, the NDRB may re- sion to the cognizant custodian of the spond that it will presume the validity applicant’s records, or reference to the of the record in the absence of such notification document; corrective action. However, the NDRB (8) A copy of the decisional docu- will consider whether it should exercise ment. its equitable powers to change the dis- charge on the basis of the alleged error. § 724.808 Issuance of decisions follow- If it declines to do so, it shall explain ing discharge review. why the applicant’s position did not The applicant and counsel or rep- provide a sufficient basis for the resentative, if any, shall be provided change in the discharge requested by with a copy of the decisional document the applicant. and of any further action in review. (iv) When NDRB concludes that ag- Final notification of decisions shall be gravating factors outweigh mitigating issued to the applicant with a copy to factors, the NDRB must set forth rea- the counsel or representative, if any, sons such as the seriousness of the of- and to the service manager concerned. fense, specific circumstances surround- (a) Notification to applicants, with ing the offense, number of offenses, copies to counsel or representatives, lack of mitigating circumstances, or shall normally be made through the similar factors. The NDRB is not re- U.S. Postal Service. Such notification quired however, to explain why it re- shall consist of a notification of deci- lied on any such factors unless the ap- sion, together with a copy of the plicability or weight of such a factor is decisional document. expressly raised as an issue by the ap- (b) Notification to the service man- plicant. ager shall be for the purpose of appro- (v) If the applicant has not submitted priate action and inclusion of review any issues and the NDRB has not oth- matter in personnel records. Such noti- erwise relied upon an issue of equity fication shall bear appropriate certifi- for a change in discharge, the cation of completeness and accuracy. decisional document shall contain a (c) Actions on review by superior au- statement to that effect, and shall note thority, when occurring, shall be pro- that the major factors upon which the vided to the applicant and counsel or discharge was based are set forth in the representative in the same manner as
246
VerDate 25
to the notification of the review deci- counsel or representative and made sion. available for public inspection. It is not intended that the statement be so § 724.809 Final disposition of the detailed as to reveal the nature of the record of proceedings. withheld material. The original decisional document and (d) NDRB documents made available all appendices thereto, shall in all for public inspection and copying shall cases be incorporated in the military be located in the Armed Forces Dis- service record of the applicant and the charge Review/Correction Board Read- service record shall be returned to the ing Room. The documents shall be in- custody of the appropriate record hold- dexed in a usable and concise form so ing facility. If a portion of the original as to enable the public, and those who record of proceedings cannot be stored represent applicants before the NDRB, with the service record, the service to isolate from all these decisions that record shall contain a notation as to are indexed, those cases that may be the place where the record is stored. similar to an applicant’s case and that Other copies including any electro- indicate the circumstances under or magnetic records, audio and/or video- reasons for (or both) which the NDRB tape recordings or any combination or the Secretary concerned granted or thereof shall be filed in the NDRB case denied relief. folder and disposed of in accordance (1) The reading file index shall in- with appropriate naval regulations. clude, in addition to any other item de- termined by the NDRB, the case num- § 724.810 Availability of Naval Dis- ber, the date, character of, reason and charge Review Board documents authority for the discharge. It shall for public inspection and copying. also include the decisions of the NDRB (a) A copy of the decisional document and reviewing authority, if any, and prepared in accordance with subpart H the issues addressed in the statement of this enclosure shall be made avail- of findings, conclusions, and reasons. able for public inspection and copying (2) The index shall be maintained at promptly after a notice of final deci- selected permanent locations through- sion is sent to the applicant. out the United States. This ensures (b) To prevent a clearly unwarranted reasonable availability to applicants at invasion of personal privacy, identify- least 30 days before a traveling panel ing details of the applicant and other review. A list of these locations shall persons will be deleted from documents be published in the FEDERAL REGISTER made available for public inspection by the Department of the Army. The and copying. index shall also be made available at (1) Names, addresses, social security sites selected for traveling panels or numbers, and military service numbers hearing examinations for such periods must be deleted. Written justification as the NDRB is present and in oper- shall be made for all other deletions ation. An applicant who has requested and shall be available for public inspec- a traveling panel review shall be ad- tion. vised, in the notice of such review, of (2) The NDRB shall ensure that there the permanent index locations. is a means for relating a decisional (3) The Armed Forces Discharge Re- document number to the name of the view/Corrections Board Reading Room applicant to permit retrieval of the ap- shall publish indexes quarterly for all plicant’s records when required in proc- DRBs. The NDRB shall be responsible essing a complaint. for timely submission to the Reading (c) Any other privileged or classified Room of individual case information material contained in or appended to required for update of the indexes. In any documents required by this Man- addition, the NDRB shall be respon- ual to be furnished the applicant and sible for submission of new index cat- counsel or representative or made egories based upon published changes available for public inspection and in policy, procedures, or standards. copying may be deleted only if a writ- These indexes shall be available for ten statement on the basis for the dele- public inspection or purchase (or both) tions is provided the applicant and at the Reading Room. When the NDRB
247
VerDate 25
has accepted an application, informa- prepared under the guidance in tion concerning the availability of the § 724.813b. index shall be provided in the NDRB’s (b) Format for recommendation. If a response to the application. recommendation is provided, it shall contain the president’s view whether § 724.811 Privacy Act information. there should be a change in the char- Information protected under the Pri- acter of or reason for discharge (or vacy Act is involved in the discharge both). If the president recommends review functions. The provisions of such a change, the particular change to SECNAVINST 5211.5C shall be observed be made shall be specified. The rec- throughout the processing of a request ommendation shall set forth the presi- for review of discharge or dismissal. dent’s position on decisional issues and issues submitted by the applicant § 724.812 Responsibilities of the Read- under the following guidance: ing Room. (1) Adoption of the NDRB’s decisional (a) Copies of decisional documents document. The recommendation may will be provided to individuals or orga- state that the president has adopted nizations outside the NCR in response the decisional document prepared by to written requests for such docu- the majority. The president shall en- ments. Although the Reading Room sure that the decisional document shall try to make timely responses to meets the requirements of this enclo- such requests, certain factors such as sure. the length of a request, the volume of (2) Adoption of the specific statements other pending requests, and the impact from the majority. If the President of other responsibilities of the staff as- adopts the views of the majority only signed to such duties may cause some in part, the recommendation shall cite delays. A fee may be charged for such the specific matter adopted from the documents under appropriate DOD and majority. If the president modifies a Department of the Army directives and statement submitted by the majority, regulations. The manual that accom- the recommendation shall set forth the panies the index of decisions shall no- modification. tify the public that if an applicant in- (3) Response to issues not included in dicates that a review is scheduled for a matter adopted from the majority. The specific date, an effort will be made to recommendation shall set forth the fol- provide requested decisional docu- lowing if not adopted in whole or in ments before that date. The individual part from the majority: or organization will be advised if that (i) The issues on which the presi- cannot be accomplished. dent’s recommendation is based. Each (b) Correspondence relating to mat- such decisional issue shall be addressed ters under the cognizance of the Read- by the president. ing Room (including requests for pur- (ii) The president’s response to items chase of indexes) shall be addressed to: submitted as issues by the applicant. (iii) Reasons for rejecting the conclu- DA Military Review Board Agency, Atten- sion of the majority with respect to the tion: SFBA (Reading Room), Room 1E520, decisional document which, if resolved The Pentagon, Washington, DC 20310. in the applicant’s favor, would have re- sulted in greater relief for the appli- § 724.813 The recommendation of the cant than that afforded by the presi- NDRB president. dent’s recommendation. Such issues (a) General. The president of the shall be addressed under the principles NDRB may forward cases for consider- in § 724.806. ation by the Secretarial Review Au- thority (SRA). There is no requirement § 724.814 Secretarial Review Authority that the president submit a rec- (SRA). ommendation when a case is forwarded (a) Review by the SRA. The Secretar- to the SRA. If the president makes a ial Review Authority (SRA) is the Sec- recommendation with respect to the retary concerned or the official to character of or reason for discharge, whom Secretary’s discharge review au- however, the recommendation shall be thority has been delegated.
248
VerDate 25
(1) The SRA may review the follow- and shall be appended as an addendum ing types of cases before issuance of to the decisional document under the the final notification of a decision: guidance in this subsection. (i) Any specific case in which the (1) The SRA’s decision. The addendum SRA has an interest. shall set forth the SRA’s decision (ii) Any specific case that the presi- whether there will be a change in the dent of the NDRB believes is of signifi- character of or reason for discharge (or cant interest to the SRA. both); if the SRA concludes that a (2) Cases reviewed by the SRA shall change is warranted, the particular be considered under the standards set change to be made shall be specified. If forth in this part. the SRA adopts the decision rec- (b) Processing the decisional document. ommended by the NDRB or the NDRB (1) The decisional document shall be president, the decisional document transmitted by the NDRB president shall contain a reference to the matter under § 724.813. adopted. (2) The following guidance applies to (2) Discussion of issues. In support of cases that have been forwarded to the the SRA’s decision, the addendum shall SRA except for cases reviewed on the set forth the SRA’s position on NDRB’s own motion, without the par- decisional issues, items submitted as ticipation of the applicant or the appli- issues by an applicant and issues raised cant’s counsel: by the NDRB and the NDRB president (i) The applicant and counsel or rep- in accordance with the following guid- resentative, if any, shall be provided ance: with a copy of the proposed decisional (i) Adoption of the NDRB president’s document, including the NDRB presi- recommendation. The addendum may dent’s recommendation to the SRA, if state that the SRA has adopted the any. Classified information shall be NDRB president’s recommendation. summarized. (ii) The applicant shall be provided (ii) Adoption of the NDRB’s proposed with a reasonable period of time, but decisional document. The addendum may not less than 25 days, to submit a re- state that the SRA has adopted the buttal to the SRA. Any issue in rebut- proposed decisional document prepared tal consists of a clear and specific by the NDRB. statement by the applicant in support (iii) Adoption of specific statements of or in opposition to the statements of from the majority or the NDRB president. the NDRB or NDRB president on If the SRA adopts the views of the decisional issues and other clear and NDRB or the NDRB president only in specific issues that were submitted by part, the addendum shall cite the spe- the applicant. The rebuttal shall be cific statements adopted. If the SRA based solely on matters in the record modifies a statement submitted by the before the NDRB closed the case for de- NDRB or the NDRB president, the ad- liberation or in the president’s rec- dendum shall set forth the modifica- ommendation. tion. (c) Review of the decisional document. (iv) Response to issues not included in If corrections in the decisional docu- matter adopted from the NDRB or the ment are required, the decisional docu- NDRB president. The addendum shall ment shall be returned to the NDRB set forth the following if not adopted in for corrective action. The corrected whole or in part from the NDRB or the decisional document shall be sent to NDRB president: the applicant (and counsel, if any), but (A) A list of the issues on which the a further opportunity for rebuttal is SRA’s decision is based. Each such not required unless the correction pro- decisional document issue shall be ad- duces a different result or includes a dressed by the SRA. This includes rea- substantial change in the decision by sons for rejecting the conclusion of the the NDRB (or NDRB president) of the NDRB or the NDRB president with re- issues raised by the majority or the ap- spect to decisional issues which, if re- plicant. solved in the applicant’s favor, would (d) The addendum of the SRA. The de- have resulted in a change to the dis- cision of the SRA shall be in writing charge more favorable to the applicant
249
VerDate 25
than that afforded by the SRA’s deci- which aid in determining whether the sion. Such issues shall be addressed standards are met shall be consistent under the principles in § 724.806(f). with historical criteria for determining (B) The SRA’s response to items sub- honorable service. No factors shall be mitted as issues by the applicant. established that require automatic (3) Response to the rebuttal. (i) If the change or denial of a change in a dis- SRA grants the full change in dis- charge. Neither the NDRB nor the Sec- charge requested by the applicant (or a retary of the Navy shall be bound by more favorable change), that fact shall any methodology of weighting of the be noted, the decisional issues shall be factors in reaching a determination. In addressed and no further response to each case, the NDRB shall give full, the rebuttal is required. fair, and impartial consideration to all (ii) If the SRA does not grant the full applicable factors before reaching a de- change in discharge requested by the cision. An applicant may not receive a applicant (or a more favorable change), less favorable discharge than that the addendum shall list each issue in issued at the time of separation. This rebuttal submitted by an applicant in does not preclude correction of clerical accordance with this section, and shall errors. set forth the response of the SRA under the following guidance: § 724.902 Propriety of the discharge. (A) If the SRA rejects an issue in re- (a) A discharge shall be deemed to be buttal, the SRA may respond in ac- proper unless, in the course of dis- cordance with the principals in charge review, it is determined that: § 724.806. (1) There exists an error of fact, law, (B) If the matter adopted by the SRA procedure, or discretion associated provides a basis for the SRA’s rejection with the discharge at the time of of the rebuttal material, the SRA may issuance; and that the rights of the ap- note that fact and cite the specific plicant were prejudiced thereby (such matter adopted that responds to the error shall constitute prejudicial error issue in rebuttal. if there is substantial doubt that the (C) If the matter submitted by the discharge would have remained the applicant does not meet the require- same if the error had not been made); ments for rebuttal material, that fact or shall be noted. (2) A change in policy by the military (4) Index entries. Appropriate index service of which the applicant was a entries shall be prepared for the SRA’s member, made expressly retroactive to actions for matters that are not adopt- the type of discharge under consider- ed from the NDRB’s proposed ation, requires a change in the dis- decisional document. charge. (b) When a record associated with the § 724.815 Complaints. discharge at the time of issuance in- A complaint is any correspondence in volves a matter in which the primary which it is alleged that a decisional responsibility for corrective action document issued by the NDRB or the rests with another organization (for ex- SRA contains a specifically indentified ample, another Board, agency, or violation of 32 CFR part 70 or any ref- court) the NDRB will recognize an erences thereto. Complaints will be re- error only to the extent that the error viewed pursuant to 32 CFR part 70. has been corrected by the organization with primary responsibility for cor- Subpart I—Standards for recting the record. Discharge Review (c) The primary function of the NDRB is to exercise its discretion on § 724.901 Objective of discharge re- issues of equity by reviewing the indi- view. vidual merits of each application on a The objective of a discharge review is case-by-case basis. Prior decisions in ot examine the propriety and equity of which the NDRB exercised its discre- the applicant’s discharge and to effect tion to change a discharge based on changes, if necessary. The standards of issues of equity (including the factors the review and the underlying factors cited in such decisions or the weight
250
VerDate 25
given to factors in such decisions) do of discipline in the military service of not bind the NDRB in its review of sub- which the applicant was a member. sequent cases because no two cases (c) In the course of a discharge re- present the same issues of equity. view, it is determined that relief is (d) The following applies to appli- warranted based upon consideration of cants who received less than fully hon- the applicant’s service record and other orable administrative discharges be- evidence presented to the NDRB viewed cause of their civilian misconduct in conjunction with the factors listed while in an inactive duty status in a in this paragraph and the regulations reserve component and who were dis- under which the applicant was dis- charged or had their discharge re- charged, even though the discharge was viewed on or after April 20, 1971: the determined to have been otherwise eq- NDRB shall either recharacterize the uitable and proper at the time of discharge to Honorable without any ad- issuance. Areas of consideration in- ditional proceedings or additional pro- clude, but are not limited to: ceedings shall be conducted in accord- (1) Quality of service, as evidenced by ance with the Court’s Order of Decem- factors such as: ber 3, 1981, in Wood v. Secretary of De- (i) Service history, including date of fense to determine whether proper enlistment, period of enlistment, high- grounds exist for the issuance of a less est rank achieved, conduct and pro- than honorable discharge, taking into ficiency ratings (numerical and nar- account that: rative); (1) An other than honorable (for- (ii) Awards and decorations; merly undesirable) discharge for an in- (iii) Letters of commendation or rep- active duty reservist can only be based rimand; upon civilian misconduct found to have (iv) Combat service; affected directly the performance of (v) Wounds received in action; military duties; (vi) Records of promotions and demo- (2) A general discharge for an inac- tions; tive duty reservist can only be based (vii) Level of responsibility at which upon civilian misconduct found to have the applicant served; had an adverse impact on the overall effectiveness of the military, including (viii) Other acts of merit that may military morale and efficiency. not have resulted in formal recognition through an award or commendation; § 724.903 Equity of the discharge. (ix) Length of service during the A discharge shall be deemed to be eq- service period which is the subject of uitable unless: the discharge review; (a) In the course of a discharge re- (x) Prior military service and type of view, it is determined that the policies discharge received or outstanding post and procedures under which the appli- service conduct to the extent that such cant was discharged differ in material matters provide a basis for a more respects from policies and procedures thorough understanding of the per- currently applicable on a service-wide formance of the applicant during the basis to discharges of the type under period of service which is the subject of consideration, provided that: the discharge review; (1) Current policies or procedures rep- (xi) Convictions by court-martial; resent a substantial enhancement of (xii) Records of nonjudicial punish- the rights afforded a respondent in ment; such proceedings; and (xiii) Convictions by civil authorities (2) There is substantial doubt that while a member of the service, re- the applicant would have received the flected in the discharge proceedings or same discharge, if relevant current otherwise noted in the service records; policies and procedures had been avail- (xiv) Records of periods of unauthor- able to the applicant at the time of the ized absence; discharge proceedings under consider- (xv) Records relating to a discharge ation. in lieu of court-martial. (b) At the time of issuance, the dis- (2) Capability to serve, as evidenced charge was inconsistent with standards by factors such as:
251
VerDate 25
(i) Total capabilities. This includes an will be in accordance with 10 United States evaluation of matters such as age, edu- Code 1553. cational level, and aptitude scores. ‘‘This policy shall apply to those service members whose cases are finalized or in Consideration may also be given as to process on or before July 7, 1971’’. whether the individual met normal Secretary of Defense memorandum of April military standards of acceptability for 28, 1972, to Secretaries of the Military De- military service and similar indicators partments, Chairman, Joint Chiefs of Staff; of an individual’s ability to serve satis- Subject: Review of Punitive Discharges factorily, as well as ability to adjust to Issued to Drug Users: military service. ‘‘Reference is made to Secretary Packard’s memorandum of July 7, 1971, concerning re- (ii) Family and personal problems. This habilitation and treatment of drug users, includes matters in extenuation or and my memorandum of August 13, 1971, sub- mitigation of the reason for discharge ject: ‘Review of Discharges Under Other that may have affected the applicant’s Than Honorable Conditions Issued to Drug ability to serve satisfactorily. Users.’ (iii) Arbitrary or capricious actions. ‘‘My August 13, 1971 memorandum estab- lished the current Departmental policy that This includes actions by individuals in administrative discharges under other than authority which constiute a clear honorable conditions issued solely on the abuse of such authority and that, al- basis of personal use of drugs or possession of though not amounting to prejudicial drugs for the purpose of such use will be re- error, may have contributed to the de- viewed for recharacterization to under hon- cision to discharge the individual or orable conditions. unduly influence the characterization ‘‘It is my desire that this policy be ex- panded to include punitive discharges and of service. dismissals resulting from approved sentences (iv) Discrimination. This includes un- of courts-martial issed solely for conviction authorized acts as documented by of personal use of drugs or possession of records or other evidence. drugs for the purpose of such use. ‘‘Review and recharacterization are to be APPENDIX A TO PART 724—POLICY effected, upon the application of former serv- STATEMENT BY THE SECRETARY OF ice members, utilizing the procedures and authority set forth in Title 10, United States DEFENSE—ADDRESSING CERTAIN Code, sections 874(b), 1552 and 1553. CATEGORIES OF DISCHARGES ‘‘This policy is applicable only to dis- charges which have been executed on or be- Secretary of Defense memorandum of Au- fore July 7, 1971, or issued as a result of a gust 13, 1971, to the Secretaries of the Mili- case in process on or before July 7, 1971. tary Departments, The Chairman, Joint ‘‘Former service members requesting a re- Chiefs of Staff; Subject: Review of Dis- view will be notified of the results of the re- charges Under Other Than Honorable Condi- view. The Veterans’ Administration will also tions Issued to Drug Users: be notified of the names of former service ‘‘Consistent with Department of Defense members whose discharges are recharacter- Directive 1300.11, October 23, 1970, and my ized.’’ memorandum of July 7, 1971, concerning re- habilitation and treatment of drug users, ad- APPENDIX B TO PART 724—OATH OR AF- ministrative discharges under other than FIRMATION TO BE ADMINISTERED TO honorable conditions issued solely on the DISCHARGE REVIEW BOARD MEMBERS basis of personal use of drugs or possession of drugs for the purpose of such use will be re- Prior to undertaking duties as a Board viewed for recharacterization. member, each person assigned to such duties ‘‘Accordingly, each Secretary of a Military in the precept of the Board shall execute the Department, acting through his Discharge following oath or affirmation which shall Review Board, will consider applications for continue in effect throughout service with such review from former service members. the Board. Each Secretary is authorized to issue a dis- charge under honorable conditions upon es- Oath/Affirmation tablishment of facts consistent with this pol- I, ——————, do swear or affirm that I icy. Former service members will be notified will faithfully and impartially perform all of the results of the review. The Veterans’ the duties incumbent upon me as a member Administration will also be notified of the of the Naval Discharge Review Board; that I names of former service members whose dis- will fully and objectively inquire into and charges are recharacterized. examine all cases coming before me; that I ‘‘The statute of limitations for review of will, without regard to the status of the indi- discharges within the scope of this policy vidual in any case, render my individual
252
VerDate 25
judgment according to the facts, my con- of title 10’’ before the period at the end of science and the law and regulations applica- such subsection; and ble to review of naval discharges, so help me (2) Adding at the end of such section the God. following new subsection: ‘‘(e)(1) Notwithstanding any other provi- APPENDIX C TO PART 724—SAMPLES OF sion of law, (A) no benefits under laws ad- FORMATS EMPLOYED BY THE NAVAL ministered by the Veterans’ Administration DISCHARGE REVIEW BOARD shall be provided, as a result of a change in or new issuance of a discharge under section Attach- 1553 of title 10, except upon a case-by-case re- ment Form Title view by the board of review concerned, sub- ject to review by the Secretary concerned, 1 Letter ...... En Block Notification of Decision to under such section, of all the evidence and Commander, Naval Military Per- factors in each case under published uniform sonnel Command (No Change). 2 ...... do ...... En Block Notification of Decision to standard (which shall be historically consist- Commander, Naval Military Per- ent with criteria for determining honorable sonnel Command (Change). service and shall not include any criterion 3 ...... do ...... En Block Notification of Decision to for automatically granting or denying such Commandant, Marine Corps (No change or issuance) and procedures generally Change). applicable to all persons administratively 4 ...... do ...... En Block Notification of Decision to discharged or released from active military, Commandant, Marine Corps naval, or air service under other than honor- (Change). able conditons: and (B) any such person shall be afforded an opportunity to apply for such NOTE: The Forms appearing in appendix C review under such section 1553 for a period of are not carried in the Code of Federal Regu- time terminating not less than one year lations. after the date on which such uniform stand- ards and procedures are promulgated and APPENDIX D TO PART 724—VETERANS’ published. BENEFITS ‘‘(2) Notwithstanding any other provision of law— 91 Stat. 1106 ‘‘(A) No person discharged or released from Pub. L. 95–126, Oct. 8, 1977 active military, naval, or air service under 95th Congress other than honorable conditions who has An Act been awarded a general or honorable dis- charge under revised standards for the re- To deny entitlement to veterans’ benefits view of discharges, (i) as implemented by the to certain persons who would otherwise be- President’s directive of January 19, 1977, ini- come so entitled solely by virtue of the ad- tiating further action with respect to the ministrative upgrading under temporarily President’s Proclamation 4313 of September revised standards of other than honorable 16, 1974, (ii) as implemented on or after April discharges from service during the Vietnam 5, 1977, under the Department of Defense’s era; to require case-by-case review under special discharge review program, or (iii) as uniform, historically consistent, generally implemented subsequent to April 5, 1977, and appli cable standards and procedures prior to not made applicable to all persons adminis- the award of veterans’ benefits to persons ad- tratively discharged or released from active ministratively discharged under other than military, naval, or air service under other honorable conditions from active military, than honorable conditions, shall be entitled naval, or air service; and for other purposes. to benefits under laws administered by the Be it enacted by the Senate and the House Veterans’ Administration except upon a de- of Representatives of the United States of termination, based on a case-by-case review, America in Congress assembled, That (a) sec- under standards (meeting the requirements tion 3103 of Title 38, United States Code, is of paragraph (1) of this subsection) applied amended by— by the board of review concerned under sec- (1) Inserting ‘‘or on the basis of an absence tion 1553 of title 10, subject to review by the without authority from active duty for a Secretary concerned, that such person would continuous period of at least one hundred be awarded an upgraded discharged under and eighty days if such person was dis- such standards; charged under conditions other than honor- ‘‘(B) Such determination shall be made by able unless such person demonstrates to the such board, (i) on an expedited basis after no- satisfaction of the Administrator that there tification by the Veterans’ Administration are compelling circumstances to warrant to the Secretary concerned that such person such prolonged unauthorized absence.’’ after has received, is in receipt of, or has applied ‘‘deserter,’’ in subsection (a), and by insert- for such benefits or after a written request is ing a coma and ‘‘notwithstanding any action made by such person or such determination, subsequent to the date of such discharge by (ii) on its own initiative within one year a board established pursuant to section 1553 after the date of enactment of this paragraph
253
VerDate 25
in any case where a general or honorable dis- and related benefits authorized to be pro- charge has been awarded on or prior to the vided under chapter 17 of title 38, United date of enactment of this paragraph under States Code, for any disability incurred or revised standards referred to in clause (A) (i), aggravated during active military, naval, or (ii), or (iii) of this paragraph, or (iii) on its air service in line of duty by a person other own initiative at the time a general or hon- than a person barred from receiving benefits orable discharge is so awarded in any case by section 3103(a) of such title, but shall not where a general or honorable discharge is provide such health care and related benefits awarded after such enactment date. pursuant to this section for any disability ‘‘If such board makes a preliminary deter- incurred or aggravated during a period of mination that such person would not have service from which such person was dis- been awarded an upgraded discharge under charged by reason of a bad conduct dis- standards meeting the requirements of para- charge. graph (1) of this subsection, such personal Section 3. Paragraph (18) of section 101 of shall be entitled to an appearance before the Title 38, United States Code, is amended to board, as provided for in section 1553(c) of read as follows: title 10, prior to a final determination on ‘‘(18) The term ‘discharge or release’ in- such question and shall be given written no- cludes, (A) retirement from the active mili- tice by the board of such preliminary deter- tary, naval, or air service, and (B) the satis- mination and of his or her right to such ap- factory completion of the period of active pearance. The Administrator shall, as soon military, naval, or air service for which a as administratively feasible, notify the ap- person was obligated at the time of entry propriate board of review of the receipt of into such service in the case of a person who, benefits under laws administered by the Vet- due to enlistment or reenlistment, was not erans’ Administration, or the application for awarded a discharge or release from such pe- such benefits, by any person awarded an up- riod of service at the time of such comple- graded discharge under revised standards re- tion thereof and who, at such time, would ferred to in clause (A) (i), (ii), or (iii) of this otherwise have been eligible for the award of paragraph with respect to whom a favorable a discharge or release under conditions other determination has not been made under this than dishonorable.’’ paragraph.’’. Section 4. In promulgating, or making any (b)(1) The Secretary of Defense shall fully revisions of or amendments to, regulations inform each person awarded a general or governing the standards and procedures by honorable discharge under revised standards which the Veterans’ Administration deter- for the review of discharges referred to in mines whether a person was discharged or re- section 3103(e)(2)(A) (i), (ii), or (iii) of title 38, leased from active military, naval, or air United States Code, as added by subsection service under conditions other than dishon- (a)(2) of this section of his or her right to ob- orable, the Administrator of Veterans’ Af- tain an expedited determination under sec- fairs shall, in keeping with the spirit and in- tion 3103(e)(2)(B)(i) of such title and of the tent of this Act, not promulgate any such implications of the provisions of this Act for regulations or revise or amend any such reg- each such person. ulations for the purpose of, or having the ef- (2) Notwithstanding any other provision of fect of, (1) providing any unique or special law, the Secretary of Defense shall inform advantage to veterans awarded general or each person who applies to a board of review honorable discharges under revised standards under section 1553 of title 10, United States for the review of discharges described in sec- Code, and who appears to have been dis- tion 3103(e)(2)(A) (i), (ii), or (iii) of title 38, charged under circumstances which might United States Code, as added by section constitute a bar to benefits under section 1(a)(2) of this Act, or (2) otherwise making 3103(a), of title 38, United States Code, (A) any special distinction between such veter- that such person might possibly be adminis- ans and other veterans. tratively found to be entitled to benefits Section 5. This Act shall become effective under laws administered by the Veterans’ on the date of its enactment, except that— Administration only through the action of a (1) Section 2 shall become effective on Oc- board for the correction of military records tober 1, 1977, or on such enactment date, under section 1552 of such title 10 or the ac- whichever is later; and tion of the Administrator of Veterans’ Af- (2) The amendments made by section 1(a) fairs under section 3103 of such title 38, and shall apply retroactively to deny benefits (B) of the procedures for making application under laws administered by the Veterans’ to such section 1552 board for such purpose Administration, except that, notwithstand- and to the Administrator of Veterans’ Af- ing any other provision of law. fairs for such purpose (including the right to (A) With respect to any person who, on proceed concurrently under such sections such enactment date is receiving benefits 3103, 1552 and 1553). under laws administered by the Veterans’ Section 2. Notwithstanding any other pro- Administration, (i) such benefits shall not be vision of law, the Administrator of Veterans’ terminated under paragraph (2) of section Affairs shall provide the type of health care 3103(e) of title 38, United States Code, as
254
VerDate 25
added by section 1(a)(2) of this Act, until, (I) § 725.1 Purpose. the day on which a final determination not favorable to the person concerned is made on This instruction implements 32 CFR an expedited basis under paragraph (2) of part 97 regarding the release of official such section 3103(e), (II) the day following Department of the Navy (DON) infor- the expiration of ninety days after a prelimi- mation and provision of testimony by nary determination not favorable to such DON personnel for litigation purposes, person is made under such paragraph, or (III) and prescribes conduct of DON person- the day following the expiration of one hun- nel in response to a litigation request dred and eighty days after such enactment or demand. It restates the information date, whichever day is the earliest, and (ii) contained in Secretary of the Navy In- the United States shall not make any claim struction 5820.8A of 27 August 19911, and to recover the value of any benefits provided is intended to conform in all respects to such person prior to such earliest day; with the requirements of that instruc- (B) With respect to any person awarded a general or honorable discharge under revised tion. standards for the review of discharges re- ferred to in clause (A) (i), (ii), or (iii) of such § 725.2 Policy. paragraph who has been provided any such (a) It is DON policy that official fac- benefits prior to such enactment date, the tual information, both testimonial and United States shall not make any claim to documentary, should be made reason- recover the value of any benefits so provided; ably available for use in Federal and courts, state courts, foreign courts, (C) The amendments made by clause (1) of and other governmental proceedings section 1(a) shall apply, (i) retroactively unless that information is classified, only to persons awarded general or honor- privileged, or otherwise protected from able discharges under such revised standards and to persons who, prior to the date of en- public disclosure. actment of this Act, had not attained gen- (b) DON personnel, as defined in eral eligibility to such benefits by virtue of § 725.4(b), however, shall not provide (I) a change in or new issuance of a discharge such official information, testimony, under section 1553 of title 10, United States or documents, submit to interview, or Code, or (II) any other provision of law, and permit a view or visit, without the au- (ii) prospectively (on and after such enact- thorization required by this part. ment date) to all other persons. (c) DON personnel shall not provide, with or without compensation, opinion PART 725—RELEASE OF OFFICIAL or expert testimony concerning official INFORMATION FOR LITIGATION DON or Department of Defense (DOD) PURPOSES AND TESTIMONY BY information, subjects, personnel, or ac- tivities, except on behalf of the United DEPARTMENT OF THE NAVY PER- States or a party represented by the SONNEL Department of Justice, or with the written special authorization required Sec. by this part. 725.1 Purpose. (d) Section 725.2(b) and (c) constitute 725.2 Policy. a regulatory general order, applicable 725.3 Authority to act. to all DON personnel individually, and 725.4 Definitions. need no further implementation. A vio- 725.5 Applicability. lation of those provisions is punishable 725.6 Authority to determine and respond. under the Uniform Code of Military 725.7 Contents of a proper request or de- Justice for military personnel and is mand. the basis for appropriate administra- 725.8 Considerations in determining to grant or deny a request. tive procedures with respect to civilian 725.9 Action to grant or deny a request. employees. Moreover, violations of this 725.10 Response to requests or demands in instruction by DON personnel may, conflict with this instruction. under certain circumstances, be ac- 725.11 Fees. tionable under 18 U.S.C. 207.
AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 113, 5013; 1 31 U.S.C. 9701 and 32 CFR part 97. Copies may be obtained, if needed, from the Naval Publications and Forms Direc- SOURCE: 57 FR 2463, Jan. 22, 1992, unless torate, Attn: Code 301, 5801 Tabor Avenue, otherwise noted. Philadelphia, PA 19120-5099.
255
VerDate 25
(e) Upon a showing by a requester of to grant or deny a litigation request. exceptional need or unique cir- In all cases in which the United States cumstances, and that the anticipated is, or might reasonably become, a testimony will not be adverse to the in- party, or in which expert testimony is terests of the DON, DOD, or the United requested, the Judge Advocate General States, the General Counsel of the or the General Counsel of the Navy, de- Navy, the Judge Advocate General of pending on the subject matter of the the Navy, or their respective delegates request, will act as determining au- may, in their sole discretion, and pur- thority. In all other cases, the respon- suant to the guidance contained in this sibility to act as determining author- instruction, grant such written special ity has been delegated to all officers authorization for DON personnel to ap- exercising general court-martial con- pear and testify as expert or opinion vening authority, or to their subordi- witnesses at no expense to the United nate commands, and to other com- States. mands and activities indicated in § 725.6. § 725.3 Authority to act. (b) DON personnel. Active duty and (a) The General Counsel of the Navy, former military personnel of the naval the Judge Advocate General of the service including retirees; personnel of Navy, and their respective delegates other DOD components serving with a [hereafter ‘‘determining authorities’’ DON component; Naval Academy mid- described in § 725.4(a), shall respond to shipmen; present and former civilian litigation requests or demands for offi- employees of the DON including non- cial DOD information or testimony by appropriated fund activity employees; DON personnel as witnesses. non-U.S. nationals performing services (b) If required by the scope of their overseas for the DON under provisions respective delegations, determining au- of status of forces agreements; and thorities’ responses may include: con- other specific individuals or entities sultation and coordination with the hired through contractual agreements Department of Justice or the appro- by or on behalf of DON, or performing priate United States Attorney as re- services under such agreements for quired; referral of matters proprietary DON (e.g., consultants, contractors and to another DOD component to that their employees and personnel). component; determination whether of- (c) Factual and expert or opinion testi- ficial information originated by the mony. DON policy favors disclosure of Navy may be released in litigation; and factual information if disclosure does determination whether DOD personnel not violate the criteria stated in § 725.8. assigned to or affiliated with the Navy The distinction between factual mat- may be interviewed, contacted, or used ters, and expert or opinion matters as witnesses concerning official DOD (where DON policy favors non-disclo- information or as expert or opinion sure), is not always clear. The consid- witnesses. Following coordination with erations set forth below pertain. the appropriate commander, a response (1) Naval personnel may merely be may further include whether installa- percipient witnesses to an incident, in tions, facilities, ships, or aircraft may which event their testimony would be be visited or inspected; what, if any, purely factual. On the other hand, they conditions will be imposed upon any re- may be involved with the matter only lease, interview, contact, testimony, through an after-the-event investiga- visit, or inspection; what, if any, fees tion (e.g., JAGMAN investigation). De- shall be charged or waived for access scribing the manner in which they con- under the fee assessment consider- ducted their investigation and asking ations set forth in § 725.11; and what, if them to identify factual conclusions in any, claims of privilege, pursuant to their report would likewise constitute this instruction, may be invoked before factual matters to which they might any tribunal. testify. In contrast, asking them to adopt or reaffirm their findings of fact, § 725.4 Definitions. opinions, and recommendations, or (a) Determining authority. The cog- asking them to form or express any nizant DON or DOD official designated other opinion—particularly one based
256
VerDate 25
upon matters submitted by counsel or while such personnel were employed by going to the ultimate issue of causa- or on behalf of the DOD or on active tion or liability—would clearly con- duty with the United States Armed stitute precluded testimony under the Forces (determining whether ‘‘official above policy. information’’ is sought, as opposed to (2) Naval personnel, by virtue of their non-DOD information, rests with the training, often form opinions because determining authority identified in they are required to do so in the course § 725.6, rather than the requester). of their duties. If their opinions are (f) Request or demand (legal process). formed prior to, or contemporaneously Subpoena, order, or other request by a with, the matter in issue, and are rou- federal, state, or foreign court of com- tinely required of them in the course of petent jurisdiction, by any administra- the proper performance of their profes- tive agency thereof, or by any party or sional duties, they constitute essen- other person (subject to the exceptions tially factual matters (i.e., the opinion stated in § 725.5) for production, disclo- they previously held). Opinions formed sure, or release of official DOD infor- after the event in question, including mation or for appearance, deposition, responses to hypothetical questions, or testimony of DON personnel as wit- generally constitute the sort of opinion nesses. or expert testimony which this instruc- tion is intended to severely restrict. § 725.5 Applicability. (3) Characterization of expected tes- timony by a requester as fact, opinion, (a) This instruction applies to all or expert is not binding on the deter- present and former civilian and mili- mining authority. When there is doubt tary personnel of the DON whether em- as to whether or not expert or opinion ployed by, or assigned to, DON tempo- (as opposed to factual) testimony is rarily or permanently. Affected person- being sought, advice may be obtained nel are defined more fully in § 725.4(b). informally from, or the request for- (b) This instruction applies only to warded, to the Deputy Assistant Judge situations involving existing or reason- Advocate General (General Litigation) ably anticipated litigation, as defined or the Associate General Counsel (Liti- in § 725.4(d), when DOD information or gation) for resolution. witnesses are sought, whether or not (d) Litigation. All pretrial, trial, and the United States, the DOD, or its com- post-trial stages of all existing or rea- ponents are parties thereto. It does not sonably anticipated judicial or admin- apply to formal or informal requests istrative actions, hearings, investiga- for information in other situations. tions, or similar proceedings before ci- (c) This instruction provides guid- vilian courts, commissions, boards (in- ance only for DON operation and ac- cluding the Armed Services Board of tivities of its present and former per- Contract Appeals), or other tribunals, sonnel in responding to litigation re- foreign and domestic. This term in- quests. It is not intended to, does not, cludes responses to discovery requests, and may not be relied upon to, create depositions, and other pretrial proceed- any right or benefit, substantive or ings, as well as responses to formal or procedural, enforceable at law or eq- informal requests by attorneys or oth- uity against the United States, DOD, ers in situations involving, or reason- or DON. ably anticipated to involve, civil or (d) This instruction is not intended criminal litigation. to infringe upon or displace the respon- (e) Official information. All informa- sibilities committed to the Department tion of any kind, however stored, in the of Justice in conducting litigation on custody and control of the DOD and its behalf of the United States. components including the DON; relat- (e) This instruction does not super- ing to information in the custody and sede or modify existing laws, DOD or control of DOD or its components; or DON regulations, directives, or instruc- acquired by DOD personnel or its com- tions governing testimony of DON per- ponent personnel as part of their offi- sonnel or release of official DOD or cial duties or because of their official DON information during grand jury status within DOD or its components, proceedings.
257
VerDate 25
(f) This instruction does not control determined to intervene in the litiga- release of official information in re- tion or has declined to intervene; sponse to requests unrelated to litiga- (4) As part of the assistance required tion or under the Freedom of Informa- by the Defense Industrial Personnel Se- tion Act (FOIA), 5 U.S.C. 552, or the curity Clearance Review Program Privacy Act, 5 U.S.C. 552a. This in- under DOD Directive 5220.62; struction does not preclude treating (5) Release of copies of Manual of the any written request for DON records as Judge Advocate General (JAGMAN) in- a request under the FOIA or Privacy vestigations, to the next of kin (or Acts. Activities are encouraged to their representatives) of deceased or treat such requests for documents incompetent naval personnel; under the FOIA or the Privacy Act if (6) Release of information by DON they are invoked by the requestor ei- personnel to counsel retained on their ther explicitly or by fair implication. behalf for purposes of litigation, unless See 32 CFR 701.3(a), 701.10(a). Activities that information is classified, privi- are reminded that such treatment does leged, or otherwise protected from dis- not absolve them of the responsibility closure (in the latter event, compliance to respond in a timely fashion to legal with 32 CFR part 97 and this part is re- process. In any event, if the official in- quired); formation requested pertains to a liti- (7) Cases involving garnishment or- gation matter which the United States ders for child support and/or alimony. is a present or potential party, the re- The release of official information in lease authority should notify the dele- these cases is governed by 5 CFR 581 gate of the General Counsel or the and SECNAVINST 7200.163, or; Judge Advocate General, under § 725.6. (8) Release of information to Federal, (g) This part does not apply to re- state, and local prosecuting and law lease of official information or testi- enforcement authorities, in conjunc- mony by DON personnel in the follow- tion with an investigation conducted ing situations: by a DOD component or DON criminal (1) Before courts-martial convened by investigative organization. any DOD component, or in administra- (h) This part does not preclude offi- tive proceedings conducted by, or on cial comment on matters in litigation behalf of, such component; in appropriate cases. (2) Under administrative proceedings (i) The DOD General Counsel may no- conducted by, or on behalf of, the tify DOD components that DOD will as- Equal Employment Opportunity Com- sume primary responsibility for coordi- mission (EEOC) or the Merit Systems nating all litigation requests for de- Protection Board (MSPB), the Federal mands for official DOD information or Labor Relations Authority, the Federal testimony of DOD personnel in litiga- Services Impasse Panel, or under a ne- tion involving terrorism, espionage, gotiated grievance procedure under a nuclear weapons, and intelligence collective bargaining agreement to sources or means. Accordingly, deter- which the Government is a party; mining officials who receive requests (3) In response to requests by Federal pertaining to such litigation shall no- Government counsel, or counsel rep- tify the Associate General Counsel resenting the interests of the Federal (Litigation) or the Deputy Assistant Government, in litigation conducted, Judge Advocate General (International in whole or in part, on behalf of the Law or General Litigation) who shall United States (e.g., Medical Care Re- consult and coordinate with DOD Gen- covery Act claims, affirmative claims, eral Counsel prior to any response to or subpoenas issued by, or concurred in such requests. by, Government counsel when the (j) Relationship with Federal Rules of United States is a party), but the regu- Procedure. The requirements imposed lation does apply to an action brought by this instruction are intended, under the qui tam provisions of the among other things, to provide ade- False Claims Act in which a private quate notice to DON regarding the party brings an action in the name of the United States but in which the De- 2 See footnote 1 to § 725.1. partment of Justice either has not yet 3 See footnote 1 to § 725.1.
258
VerDate 25
scope of proposed discovery. This will come, a party. Examples of such in- assure that certain DON information, stances include suits under the Federal which properly should be withheld, is Tort Claims Act, Freedom of Informa- not inadvertently released in response tion Act, Medical Care Recovery Act, to a litigation request or demand, in- Tucker Act, and suits against Govern- cluding a subpoena or other request for ment contractors where the contractor discovery issued under Federal rules of may interplead the United States or procedure. When the United States is a seek indemnification from the United party to Federal litigation and the States for any judgment paid, e.g., party opponent uses discovery methods aviation contractors or asbestos mat- (e.g., request for interrogatories and ters. Generally, a suit in which the admissions, depositions) set forth in plaintiff is representing the interests of Federal rules of procedure, the Judge the United States under the Medical Advocate General or General Counsel, Care Recovery Act is not a litigation in consultation with representatives of matter to which the United States is, the Department of Justice or the cog- or might reasonably become, a party. nizant United States Attorney, may Determining authorities, if in doubt determine whether the requirement for whether the United States is likely to a separate written request in accord- become a party to the litigation, ance with § 725.7 should be waived. Even should seek guidance from representa- if this requirement is waived, however, tives of the Offices of the Judge Advo- DON personnel who are subpoenaed to cate General or General Counsel. The testify still will be required to obtain Judge Advocate General and the Gen- the written permission described in eral Counsel have the authority to de- § 725.2. termine whether a litigation request should be forwarded to them, or re- § 725.6 Authority to determine and re- tained by a determining authority, for spond. resolution. (a) Matters proprietary to DON. If a (1) Litigation requests regarding litigation request or demand is made of matters assigned to the Judge Advo- DON personnel for official DON or DOD cate General of the Navy under Navy information or for testimony concern- Regulations, art. 0331 (1990)4, shall be ing such information, the individual to referred to the Deputy Assistant Judge whom the request or demand is made Advocate General (DAJAG) for General will immediately notify the cognizant Litigation, 200 Stovall Street, Alexan- DON official designated in § 725.6(c) and dria, VA 22332-2400, who will respond (d), who will determine availability for the Judge Advocate General or and respond to the request or demand. transmit the request to the appropriate (b) Matters proprietary to another DOD Deputy Assistant Judge Advocate Gen- component. If a DON activity receives a eral for response. litigation request or demand for offi- (2) Litigation requests regarding cial information originated by another matters assigned to the General Coun- DOD component or for non-DON per- sel of the Navy under Navy Regs., art. sonnel presently or formerly assigned 0327 (1990)5, shall be referred to the cog- to another DOD component, the DON nizant Command Counsel under, and activity will forward appropriate por- subject to, limitations set forth in tions of the request or demand to the § 725.6(d)(2). That Command Counsel DOD component originating the infor- may either respond or refer the matter mation, to the components where the for action to another office. Requests personnel are assigned, or to the com- involving asbestos litigation shall be ponents where the personnel were for- referred to the Office of Counsel, Naval merly assigned, for action under 32 Sea Systems Command Headquarters, CFR part 97. The forwarding DON ac- Personnel and Labor Law Section tivity will also notify the requester (Code 00LD), Washington, DC 20362-5101. and court (if appropriate) or other au- Matters not clearly within the purview thority of its transfer of the request or of a particular command counsel shall demand. (c) Litigation matters to which the 4 See footnote 1 to § 725.1. United States is, or might reasonably be- 5 See footnote 1 to § 725.1.
259
VerDate 25
be referred to Associate General Coun- shall be notified of the referral. Fur- sel (Litigation), who may either re- ther, each determining authority speci- spond or refer the matter for action to fied in this paragraph may further del- another office. egate his or her decisional authority to (3) Matters involving the Armed a principal staff member, staff judge Services Board of Contract Appeals advocate, or legal advisor. shall be forwarded to these respective (D) In the alternative, the requester counsel except where the determina- may forward the request to the Deputy tion may involve the assertion of the Assistant Judge Advocate General deliberative process privilege before (General Litigation), who may refer that Board. In such an event, the mat- the matter to another determining au- ter shall be forwarded for determina- thority for response, and so notify the tion to the Associate General Counsel requester. (Litigation). (ii) Visits and views. A request to visit (d) Litigation matters in which the a DON activity, ship, or unit, or to in- United States is not, and is reasonably spect material or spaces located there not expected to become, a party—(1) Mat- will be forwarded to one of the authori- ters within the cognizance of the Judge ties stated in § 725.6(d)(1)(i), who will Advocate General—(i) Fact witnesses. Re- respond on behalf of the Judge Advo- quests to interview, depose, or obtain cate General. Action taken by that au- testimony of any present or former thority will be coordinated with the DON personnel as defined in § 725.4(b) commanding officer of the activity, about purely factual matters shall be ship, or unit at issue, or with his or her forwarded to the Navy or Marine Corps staff judge advocate (if applicable). The officer exercising general court-martial military mission of the unit shall nor- jurisdiction (OEGCMJ) in whose chain mally take precedence over any visit of command the prospective witness or or view. The commanding officer may requested documents lie. That deter- independently prescribe reasonable mining authority will respond for the conditions as to time, place, and cir- Judge Advocate General under criteria cumstances to protect against com- set forth in § 725.8. promise of classified or privileged ma- (A) If the request pertains to person- terial, intrusion into restricted spaces, nel assigned to the Office of the Chief and unauthorized photography. of Naval Operations, the Office of the Vice Chief of Naval Operations, or an (iii) Documents. 10 U.S.C. 7861 pro- Echelon 2 command located in the vides that the Secretary of the Navy Washington, DC, area, it shall be for- has custody and charge of all DON warded to that office which will like- books, records, and property. Under 6 wise respond for the Judge Advocate DOD Directive 5530.1 , the Secretary of General under the criteria set forth in the Navy’s sole delegate for service of § 725.8. process is the General Counsel of the (B) If a request pertains to Marine Navy. See 32 CFR 257.5(c). All process Corps personnel assigned to Head- for such documents shall be served quarters Battalion, Headquarters Ma- upon the General Counsel at the De- rine Corps, or to other Marine Corps partment of the Navy, Washington, DC, commands located in the Washington, 20350-1000, who will refer the matter to DC, area, it shall be forwarded to the the proper delegate for action. Matters Commandant of the Marine Corps referred to the Judge Advocate General (JAR), Headquarters, U.S. Marine will normally be provided to the deter- Corps, Washington, DC 20380-0001, mining authorities described in which will respond for the Judge Advo- § 725.6(c) and (d). That authority will cate General under criteria set forth in respond per criteria in § 725.8. Process § 725.8. not properly served on the General (C) Nothing here shall prevent a de- Counsel is insufficient to constitute a termining authority from referring re- legal demand and shall be processed as quests or demands to another deter- a request by counsel. Requests for doc- mining authority better suited under uments maintained by the National the circumstances to determine the matter and respond, but the requester 6 See footnote 1 to § 725.1.
260
VerDate 25
Personnel Records Center will be deter- § 725.7 Contents of a proper request or mined by the official provided in demand. § 725.8(b)(2)(iii). (a) Routine requests. If official infor- (iv) Expert or opinion requests. Any re- mation is sought, through testimony quest for expert or opinion consulta- or otherwise, a detailed written request tions, interviews, depositions, or testi- must be submitted to the appropriate mony will be referred to the Deputy determining authority far enough in Assistant Judge Advocate General advance to assure an informed and (General Litigation) who will respond timely evaluation of the request, and for the Judge Advocate General, or prevention of adverse effects on the transmit the request to the appropriate mission of the command or activity DAJAG for response. Matters not that must respond. The determining clearly within the purview of a particu- authority shall decide whether suffi- lar Deputy Assistant Judge Advocate cient information has been provided by General will be retained by the Deputy the requester. Absent independent in- Assistant Judge Advocate General formation, the following data is nec- (General Litigation), who may either essary to assess a request. respond or refer the matter to another determining authority for response. (1) Identification of parties, their coun- sel and the nature of the litigation. (i) (2) Matters within the cognizance of the Caption of case, docket number, court. General Counsel of the Navy—(i) Matters not involving issues of Navy policy. Such (ii) Name, address, and telephone matters shall be forwarded for deter- number of all counsel. mination to the respective counsel for (iii) The date and time on which the Naval Sea Systems Command, Naval documents, information, or testimony Air Systems Command, Naval Supply sought must be produced; the requested Systems Command, Naval Facilities location for production; and, if applica- Engineering Command, Space and ble, the estimated length of time that Naval Warfare Command, Office of the attendance of the DON personnel will Navy Comptroller, Commandant of the be required. Marine Corps, Office of the Chief of (2) Identification of information or doc- Naval Research, Military Sealift Com- uments requested. (i) A description, in as mand, Office of Civilian Personnel Pol- much detail as possible, of the docu- icy, or to the Assistant General Coun- ments, information, or testimony sel (Acquisition), depending upon who sought, including the current military has cognizance over the information or service, status (active, separated, re- personnel at issue. tired), social security number, if (ii) Matters involving issues of Navy known, of the subject of the requested policy. Such matters shall be forwarded pay, medical, or service records; for determination to the General Coun- (ii) The location of the records, in- sel of the Navy via the Associate Gen- cluding the name, address, and tele- eral Counsel (Litigation). phone number, if known, of the person (iii) Matters involving asbestos litiga- from whom the documents, informa- tion. Such matters shall be forwarded tion, or testimony is sought; and to the Office of Counsel, Naval Sea Sys- (iii) A statement of whether factual, tems Command Headquarters, Person- opinion, or expert testimony is re- nel and Labor Law Section (Code quested (see §§ 725.4(c) and 00LD), Washington, DC 20362-5101. 725.8(b)(3)(ii)). (3) Matters not clearly within the cog- (3) Description of why the information nizance of either the Judge Advocate Gen- is needed. (i) A brief summary of the eral or the General Counsel. Such mat- facts of the case and the present pos- ters may be sent to the Deputy Assist- ture of the case. ant Judge Advocate General (General (ii) A statement of the relevance of Litigation) or the Associate General the matters sought to the proceedings Counsel (Litigation), who will, in con- at issue. sultation with the other, determine the (iii) If expert or opinion testimony is appropriate authority to respond to the sought, an explanation of why excep- request. tional need or unique circumstances
261
VerDate 25
exist justifying such testimony, includ- (7) An agreement that if the local ing why it is not reasonably available rules of procedure controlling the liti- from any other source. gation so provide, the witness will be (b) Additional considerations. The cir- given an opportunity to read, sign, and cumstances surrounding the underly- correct the deposition at no cost to the ing litigation, including whether the witness or the Government; United States is a party, and the na- (8) A statement of understanding ture and expense of the requests made that the United States reserves the by a party may require additional in- right to have a representative present formation before a determination can at any interview or deposition; and be made. Providing the following infor- (9) A statement that counsel for mation or stipulations in the original other parties to the case will be pro- request may expedite review and elimi- vided with a copy of all correspondence nate the need for additional cor- originated by the determining author- respondence with the determining au- ity so they may have the opportunity thority. to submit any related litigation re- (1) A statement of the requester’s quests and participate in any discov- willingness to pay in advance all rea- ery. sonable expenses and costs of searching (c) Response to deficient requests. A for and producing documents, informa- letter request that is deficient in pro- tion, or personnel, including travel ex- viding necessary information may be penses and accommodations (if applica- returned to the requester by the deter- ble); mining authority with an explanation of the deficiencies and a statement (2) In cases in which deposition testi- that no further action will be taken mony is sought, a statement of wheth- until they are corrected. If a subpoena er attendance at trial or later deposi- has been received for official informa- tion testimony is anticipated and re- tion, counsel should promptly deter- quested. A single deposition normally mine the appropriate action to take in should suffice; response to the subpoena. See § 725.9(g). (3) An agreement to notify the deter- (d) Emergency requests. Written re- mining authority at least 10 working quests are generally required by 32 days in advance of all interviews, depo- CFR part 97. sitions, or testimony. Additional time (1) The determining authority, iden- for notification may be required where tified in § 725.6, has discretion to waive the witness is a DON health care pro- that requirement in the event of a bona vider or where the witness is located fide emergency, under conditions set overseas; forth here, which were not anticipated (4) An agreement to conduct the dep- in the course of proper pretrial plan- osition at the location of the witness, ning and discovery. Oral requests and unless the witness and his or her com- subsequent determinations should be manding officer or cognizant superior, reserved for instances where factual as applicable, stipulate otherwise; matters are sought, and compliance (5) In the case of former DON person- with the requirements of a proper writ- nel, a brief description of the length ten request would result in the effec- and nature of their duties while in DON tive denial of the request and cause an employment, and a statement of injustice in the outcome of the litiga- whether such duties involved, directly tion for which the information is or indirectly, the information or mat- sought. No requester has a right to ters as to which the person will testify; make an oral request and receive a de- (6) An agreement to provide free of termination. Whether to permit such charge to any witness a signed copy of an exceptional procedure is a decision any written statement he or she may within the sole discretion of the deter- make, or, in the case of an oral deposi- mining authority, unless overruled by tion, a copy of that deposition tran- the General Counsel or the Judge Ad- script, if taken by a stenographer, or a vocate General, as appropriate. video tape copy, if taken solely by (2) If the determining authority con- video tape, if not prohibited by applica- cludes that the request, or any portion ble rules of court; of it, meets the emergency test, he or
262
VerDate 25
she will require the requester to agree properly classified under the DOD In- to the conditions set forth in § 725.7(a). formation Security Program under The determining authority will then DOD 5200.1-R7, withholding of unclassi- orally advise the requester of the de- fied technical data from public disclo- termination, and seek a written con- sure following OPNAVINST 5510.161; firmation of the oral request. There- privileged Naval Aviation Safety Pro- after, the determining authority will gram information (OPNAVINST 3750.6Q make a written record of the disposi- (NOTAL))8, or other matters exempt tion of the oral request including the from unrestricted disclosure under 5 grant or denial, circumstances requir- U.S.C. 552, 552a; ing the procedure, and conditions to (8) Whether disclosure would unduly which the requester agreed. interfere with ongoing law enforcement (3) The emergency procedure should proceedings, violate constitutional not be utilized where the requester re- rights, reveal the identity of an intel- fuses to agree to the appropriate condi- ligence source or source of confidential tions set forth in § 725.7(a) or indicates information, conflict with U.S. obliga- unwillingness to abide by the limits of tions under international agreement, the oral grant, partial grant, or denial. or be otherwise inappropriate under the circumstances; § 725.8 Considerations in determining (9) Whether attendance of the re- to grant or deny a request. quested witness at deposition or trial (a) General considerations. In deciding will unduly interfere with the military whether to authorize release of official mission of the command; and information, or the testimony of DON (10) Whether, in a criminal case, re- personnel concerning official informa- quiring disclosure by a defendant of de- tion (hereafter referred to as ‘‘the dis- tailed information about the relevance closure’’ under a request conforming of documents or testimony as a condi- with the requirements of § 725.7, the de- tion for release would conflict with the termining authority shall consider the defendant’s constitutional rights. following factors: (b) Specific considerations—(1) Docu- (1) The DON policy regarding disclo- ments, interviews, depositions, testimony, sure in § 725.2; and views (where the United States is, or (2) Whether the request or demand is may become, a party). All requests per- unduly burdensome or otherwise inap- taining to such matters shall be for- propriate under applicable court rules; warded to the Judge Advocate General (3) Whether disclosure, including re- or the General Counsel, as appropriate lease in camera (i.e., to the judge or under § 725.6(c). court alone), is appropriate under pro- (2) Documents (where the United States cedural rules governing the case or is not, and is reasonably not expected to matter in which the request or demand become a party)—(i) Unclassified Navy arose; and Marine Corps records. Where parties (4) Whether disclosure would violate or potential parties desire unclassified or conflict with a statute, executive naval records in connection with a liti- order, regulation, directive, instruc- gation matter, the subpoena duces tion, or notice; tecum or court order will be served, (5) Whether disclosure, in the absence under 32 CFR 257.5(c), upon the General of a court order or written consent, Counsel of the Navy, along with a writ- would violate 5 U.S.C. 552, 552a; ten request complying with § 725.7. (6) Whether disclosure, including re- (A) If the determining authority to lease in camera, is appropriate or nec- whom the matter is referred deter- essary under the relevant substantive mines to comply with the order or sub- law concerning privilege (e.g., attor- poena, compliance will be effected by ney-client, attorney work-product, or transmitting certified copies of records physician-patient in the case of civil- to the clerk of the court from which ian personnel); process issued. If, because of an un- (7) Whether disclosure, except when usual circumstance, an original record in camera (i.e., before the judge alone) and necessary to assert a claim of 7 See footnote 1 to § 725.1. privilege, would reveal information 8 See footnote 1 to § 725.1.
263
VerDate 25
must be produced by a naval custodian, sonnel Records Center will be served it will not be removed from the cus- upon the Director, National Personnel tody of the person producing it, but Records Center, 9700 Page Boulevard, copies may be placed in evidence. St. Louis, MO 63132. If records respon- (B) Upon written request of one or sive to the request are identified and more parties in interest or their re- maintained at the National Personnel spective attorneys, records which Records Center, that Center shall make would be produced in response to a appropriate certified (authenticated) court order signed by a judge as set copies of the information requested. forth above may be furnished without a These copies will then be forwarded, court order, but only upon a request along with the request, in the case of complying with § 725.7 and only when Navy personnel, to Chief, Bureau of such records are not in a ‘‘system of Naval Personnel (Pers-06), Washington, records’’ as defined by the Privacy Act DC 20370-5000, or his delegate, who will (5 U.S.C. 552a). In determining whether respond. In the case of Marine Corps a record not contained in a ‘‘system of personnel, the copies and request will records’’ will be furnished in response be sent to the Commandant of the Ma- to a Freedom of Information Act rine Corps (MMRB-10), Quantico, VA (FOIA) request, SECNAVINST 5720.42E9 22134-0001, who will respond. Those re- controls. quests that do not constitute legal de- (C) Generally, a record in a Privacy mands will be refused by the Director, Act ‘‘system of records’’ may not be re- National Personnel Records Center, leased under a litigation request except and written guidance provided to the with the written consent of the person requester. to whom the record pertains or in re- (iv) Medical and other records of civil- sponse to a court order signed by a ian employees. Production of medical 10 judge. See SECNAVINST 5211.5C and 5 certificates or other medical reports U.S.C. 552, 552a for further guidance. concerning civilian employees is con- (D) Whenever compliance with a trolled by Federal Personnel Manual, court order or subpoena duces tecum chapter 294 and chapter 339.1-4.12 for production of DON records is denied Records of civilian employees, other for any reason, the subpoena or court than medical records, may be produced order and complete copies of the re- upon receipt of a court order and a re- quested records will be forwarded to quest complying with § 725.7, provided the appropriate Deputy Assistant no classified or for official use only in- Judge Advocate General (General Liti- formation, such as loyalty or security gation) or the Associate General Coun- records, are involved. Disclosure of sel (Litigation) for action, and the par- records relating to compensation bene- ties to the suit notified in accordance fits administered by the Office of with this part. Workers’ Compensation Programs of (ii) Classified Navy and Marine Corps the Department of Labor are governed records. Any consideration of release of by Secretary of the Navy Instruction classified information for litigation 5211.5C (Privacy Act implementation) purposes, within the scope of this in- and Secretary of the Navy Instruction struction, must be coordinated within the Office of the Chief of Naval Oper- 5720.42E (Freedom of Information Act ations (OP-09N) per OPNAVINST implementation), as appropriate. 5510.1H.11 Where information is furnished per this (iii) Records in the custody of the Na- subparagraph in response to a court tional Personnel Records Center. Court order and proper request, certified cop- orders or subpoenas duces tecum de- ies rather than originals should be fur- manding information from, or produc- nished. Where original records must be tion of, service or medical records of produced because of unusual cir- former Navy and Marine Corps person- cumstances, they may not be removed nel in the custody of the National Per- from the custody of the official produc- ing them, but copies may be placed on the record. 9 See footnote 1 to § 725.1. 10 See footnote 1 to § 725.1. 11 See footnote 1 to § 725.1. 12 See footnote 1 to § 725.1.
264
VerDate 25
(v) JAGMAN investigations (other than rines should be requested from Direc- to next of kin). The Deputy Assistant tor, Defense Finance and Accounting Judge Advocate General having cog- Service, Kansas City Center (Code G), nizance over the records at issue for Kansas City, MO 64197-0001. litigation or prospective litigation pur- (3) Interviews, depositions, and testi- poses may release the records if a com- mony (where the United States is not, and plete release will result. The Assistant is reasonably not expected to become, a Judge Advocate General (Civil Law) party)—(i) Factual matters. DON policy will make determinations concerning favors disclosure of factual matters the release of the records specified in when disclosure does not violate the this subparagraph if a release of less criteria stated in this section. Distin- than the complete requested record guishing between factual matters and will result. A release to next of kin of expert or opinion matters (where DON incompetent or deceased DON person- policy favors non-disclosure) requires nel or their representatives is exempt careful analysis. Opinion matters are from these requirements and this part. defined at § 725.4(c). (vi) Affirmative claims files. Affirma- (ii) Expert, opinion, or policy matters. tive claims files (including Medical Such matters are to be determined, Care Recovery Act files), except to the under the delegation in § 725.6, by the extent they contain copies of JAGMAN cognizant Deputy Assistant Judge Ad- investigations prepared under the Man- vocate General or by General Counsel. ual of the Judge Advocate General, or General considerations to identify ex- classified or privileged information, pert or opinion testimony are in may be released by the commanding of- § 725.4(c). DON personnel shall not pro- ficer of the Naval Legal Service Office having cognizance over the claim at vide, with or without compensation, issue, without compliance with this in- opinion or expert testimony concerning struction, to: insurance companies to official information, subjects, or ac- support claims; to civilian attorneys tivities, except on behalf of the United representing injured service persons, States or a party represented by the their dependents, and the Govern- Department of Justice. Upon a showing ment’s interests; and to other DOD by the requester of exceptional need or components. When a request for pro- unique circumstances, and that the an- duction involves material related to ticipated testimony will not be adverse claims in favor of the Government, ei- to the interests of the DOD or the ther the cognizant Command Counsel United States, the appropriate DON of- or the Naval Legal Service Office hav- ficial designated in § 725.6, may grant, ing territorial responsibility for the in writing, special authorization for area should be notified. DON personnel to appear and testify at (vii) Accounting for disclosures from no expense to the United States. In de- ‘‘systems of records.’’ When compliance termining whether exceptional need or with a litigation request or demand for unique circumstances exist, the deter- production of records is appropriate, or mining official should consider wheth- when release of records is otherwise au- er such expert or opinion testimony is thorized, and records contained in a available to the requester from any ‘‘system of records,’’ are released, the other source. The burden of dem- releasing official will consult Sec- onstrating such unavailability, if any, retary of the Navy Instruction 5211.5C is solely upon the requester. regarding disclosure accounting re- (iii) Visits and views (where the United quirements. States is not, and is reasonably not ex- (viii) Pay records. Official pay records pected to become, a party). Such disclo- of active-duty, reserve, retired, or sures are normally factual in nature former Navy members should be re- and should not be accompanied by quested from Director, Defense Finance interviews of personnel unless sepa- and Accounting Service (DFAS), Cleve- rately requested and granted. The au- land Center, Anthony J. Celebrezze thority of the commanding officer of Federal Building, Cleveland, OH 44199- the activity, ship, or unit at issue is 2055. Official pay records of active- not limited by this part. Accordingly, duty, reserve, retired, or former Ma- he or she may prescribe appropriate
265
VerDate 25
conditions as to time, place, and cir- sible to provide the requester and the cumstances (including proper restric- court with the matter at issue or with tions on photography). a statement of the reasons for denial. (iv) Non-DOD information. A request The decisional period should not ex- for disclosure under this part, particu- ceed 10 working days from receipt of a larly through the testimony of a wit- complete request complying with the ness, may involve both official infor- requirements of § 725.7, absent excep- mation and non-DOD information (e.g., tional or particularly difficult cir- in the case of a person who has ac- cumstances. The requester should also quired additional and separate knowl- be informed promptly of the referral of edge or expertise wholly apart from any portion of the request to another Government employment). Determin- authority for determination. ing whether or not official information (d) Except as provided in § 725.7(d), a is at issue is within the purview of the determination to grant or deny shall be determining authority, not the re- in writing. quester. A requester’s contention that only non-DOD information is at issue (e) The determination letter should is not dispositive. The requester must respond solely to the specific disclo- still comply with this instruction to sures requested, stating a specific de- support that contention. If non-DOD termination on each particular re- information is at issue in whole or in quest. When a request is denied in part, the determining authority shall whole or in part, a statement of the so state in the written determination reasons for denial should be provided to described in § 725.9. He or she shall fully inform a court of the reasons un- make no other determination regard- derlying the determination if it is chal- ing that non-DOD information. lenged. (f) A copy of any denial, in whole or § 725.9 Action to grant or deny a re- in part, of a request, should be for- quest. warded to the cognizant Deputy Assist- (a) The process of determining ant Judge Advocate General or the As- whether to grant or deny a request is sociate General Counsel (Litigation), not an adversary proceeding. This part as appropriate. Such notification is provides guidance for the operation of likewise appropriate when the litiga- DON only and is not intended to, does tion request has been treated under 5 not, and may not be relied upon to, cre- U.S.C. 552, 552a and § 725.5(f). Tele- ate any right or benefit, substantive or phonic notification is particularly ap- procedural, enforceable at law against propriate where a judicial challenge or the United States, DOD, or DON. contempt action is anticipated. (b) 32 CFR part 97 and this part apply (g) In cases in which a subpoena has to testimony by former naval person- been received and the requester refuses nel and former civilian employees of to pay fees or otherwise comply with DON. A proper request must be made, the guidance and requirements imposed under § 725.7, to obtain testimony by former personnel regarding official by this part, or if the determining au- DOD information. However, this part is thority declines to make some or all of not intended to place unreasonable re- the subpoenaed information available, straints upon the post-employment or if the determining authority has had conduct of such personnel. Accord- insufficient time to complete its deter- ingly, requests for expert or opinion mination as to how to respond to the testimony by such personnel will nor- request, the determining authority mally be granted unless that testimony must promptly notify the General Liti- would constitute a violation of the U.S. gation Division of the Office of the Code (e.g., 18 U.S.C. 201 et seq.), con- Judge Advocate General or the Navy flict with pertinent regulations (e.g., Litigation Office of the Office of the Secretary of the Navy Instruction General Counsel, which offices will de- 5370.2H), or disclose properly classified termine, in consultation with the De- or privileged information. partment of Justice, the appropriate (c) A determination to grant or deny response to be made to the tribunal should be made as expeditiously as pos- which issued the subpoena. Because the
266
VerDate 25
Federal Rules of Civil Procedure re- appropriate DON official, the DON per- quire that some objections to subpoe- sonnel upon whom the request or de- nas must be made either within 10 days mand was made will, if time permits, of service of the subpoena or on or be- notify the determining authority of fore the time for compliance, which- such ruling or order. That authority ever first occurs, and because this will will notify the Deputy Assistant Judge require consultation with the Depart- Advocate General or the Associate ment of Justice, timely notice is essen- General Counsel (Litigation) having tial. cognizance over the matter. After due consultation and coordination with the § 725.10 Response to requests or de- Department of Justice, as required by mands in conflict with this instruc- the Manual of the Judge Advocate Gen- tion. eral, that official will determine (a) Except as otherwise provided in whether the individual is required to this paragraph, DON personnel, includ- comply with the request or demand and ing former military personnel and ci- will notify the requester, the court, or vilian employees, shall not produce, other authority accordingly. The wit- disclose, release, comment upon, or ness shall, if directed by the appro- testify concerning any official DOD in- priate DON official, respectfully de- formation in response to a litigation cline to comply with the demand. request or demand without prior writ- Legal counsel for the command con- ten approval of the appropriate DON cerned should accompany and advise official designated in § 725.6. If a re- DON personnel during any court pro- quest has been made, and granted, in ceedings involving the foregoing cir- whole or in part, per 32 CFR part 97 and cumstances. this part, DON personnel may only (d) It is expected that all DON ac- produce, disclose, release, comment tions in the foregoing paragraphs will upon, or testify concerning those mat- be taken only after active consultation ters specified in the request and prop- with the appropriate component of the erly approved by the determining au- Department of Justice. Generally, DON thority designated in § 725.6. See United personnel will be instructed to decline States ex rel. Touhy v. Ragen, 340 U.S. to comply with a court order only if 462 (1951). the Department of Justice commits to (b) If, after DON personnel have re- represent the DON personnel in ques- ceived a litigation request or demand tion. and have in turn notified the appro- priate determining authority described § 725.11 Fees. in § 725.6, a response to the request or (a) Generally. Except as provided demand is required before instructions below, determining authorities shall from the responsible official have been charge reasonable fees and expenses to received, the responsible authority des- parties seeking official DON informa- ignated in § 725.6 shall notify the Dep- tion or testimony under this instruc- uty Assistant Judge Advocate General tion. Pursuant to 32 CFR 288.4, 288.10, or Associate General Counsel (Litiga- these fees should include all costs of tion) who has cognizance over the mat- processing a request for information, ter. That official will furnish the re- including time and material expended. quester, the court, or other authority Travel for active duty members sum- that the request or demand is being re- moned as witnesses is governed by viewed in accordance with this part Joint Travel Regulations, Vol. I, Chap. and seek a stay of the request or de- 7, pt. E. and Navy Travel Instructions, mand pending a final determination. Chap. 6, pt. E.13 Travel for civilian per- (c) If a court of competent jurisdic- sonnel summoned as witnesses is gov- tion or other appropriate authority de- erned by the Joint Travel Regulations, clines to stay the effect of the request Vol. II, Chap. 4, pt. E.14 or demand in response to action taken (1) When DON is a party. No fees nor- under § 725.10(b), or if such court or mally shall be charged when the DON other authority orders that the request or demand must be complied with, not- 13 See footnote 1 to § 725.1. withstanding the final decision of the 14 See footnote 1 to § 725.1.
267
VerDate 25
is a party to the proceedings, and the priate legal action before the court activity holding the requested informa- issuing the subpoena. Determining au- tion or employing the witness shall thorities should consult promptly with bear the expense of complying with the the OJAG General Litigation Division request. or the Navy Litigation Office of the (2) When another federal agency is a General Counsel if this course of action party. No fees shall be charged to the appears necessary, because some objec- requesting agency. Travel and per diem tions to subpoenas must be made either expenses may be paid by the requesting within ten days of service of the sub- agency, or by the Navy activity to poena or on or before the time for com- which the requested witness is as- signed, subject to reimbursement from pliance, whichever first occurs, and be- the requesting agency. cause this will require timely consulta- (3) When neither DON nor another fed- tion with the Department of Justice. If eral agency is a party. Fees shall be no subpoena has been issued, the deter- charged to the requester for time taken mining authority must decide whether from official duties by DON personnel to deny the request or, if appropriate, who are authorized to be interviewed, waive the fees. give testimony, or escort persons on (2) Waiver or reduction of fees. The de- views and visits of installations. At the termining authority may waive or re- discretion of the cognizant command, duce fees pursuant to 32 CFR 288.4, DON personnel need not be made avail- 288.9, provided such waiver or reduction able during duty hours unless directed is in the best interest of the DON and by subpoena. Time which DON person- the United States. Fee waivers and re- nel spend in court testifying, or wait- ductions shall not be routinely grant- ing to testify on factual matters shall ed, or granted under circumstances not be charged. Fees should be charged, which might create the appearance however, for expert or opinion testi- that DON favors one party over an- mony based upon the witness’s edu- other. cation, training, or experience. Testi- (3) Witness fees required by the court. mony by a treating physician called to Witness fees required by the rules of testify about his personal knowledge of a specific case is considered fact not the applicable court shall be paid di- expert testimony. Fees are payable to rectly to the witness by the requester. the Treasurer of the United States for Such amounts are to defray the cost of deposit in the Treasury’s miscellaneous travel and per diem. In a case where receipts. Rates for uniformed personnel the Government has paid the cost of are published in NAVCOMPT Notice travel and per diem, the witness shall 7041 series.15 Pursuant to 32 CFR 288.4, turn over to his or her supervisor any charges for civilian personnel should payment received from a private party include the employee’s hourly rate of to defray the cost of travel that, when pay, as well as allowances and benefits. added to amounts paid by the Govern- Except as provided in § 725.11(b)(4), no ment, exceed the actual cost of travel. funds may be expended for travel or per The supervisor shall forward the diem of active duty members when an amount turned over by the witness to agency of the Federal Government is the Office of the Comptroller of the not a party. The requesting party is re- Navy for appropriate action. sponsible for travel arrangements and (4) Exceptional cases. If neither the funding. Government funding of travel DON, nor an agency of the Federal and per diem for civilian employees is Government is a party, appropriated authorized. funds may be used to pay, without re- (b) Special circumstances—(1) Refusal imbursement, travel and per diem of to pay fees. In cases in which a sub- DON personnel who are witnesses in poena has been received and the re- quester refuses to pay appropriate fees, criminal or civil proceedings, provided, it may become necessary to request the the case is directly related to the Department of Justice to take appro- Armed Services, or its members, and the Armed Services have a genuine and compelling interest in the outcome. 15 See footnote 1 to § 725.1.
268
VerDate 25
PART 726—PAYMENTS OF § 726.3 Authority to appoint trustees. AMOUNTS DUE MENTALLY IN- The Judge Advocate General or his COMPETENT MEMBERS OF THE designee is authorized to act for the NAVAL SERVICE Secretary of the Navy to appoint trust- ees to receive and administer Federal Sec. monies for members and to carry out 726.1 Purpose. the provisions of this chapter. 726.2 Scope. 726.3 Authority to appoint trustees. § 726.4 Procedures for convening com- 726.4 Procedures for convening competency petency boards. boards. 726.5 Procedures for designation of a trust- (a) Competency Board. (1) The com- ee. manding officer of the cognizant naval 726.6 Travel orders. medical facility will convene a board of 726.7 Status of pay account. not less than three medical officers or 726.8 Emergency funds. physicians, one of whom will be a psy- 726.9 Reports and supervision of trustees. chiatrist, when there is evidence that a AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031, and member who is a patient in the naval 5148; 37 U.S.C. 601-604, and 1001; 32 CFR 700.206 medical facility may be incapable of and 700.1202. handling his affairs. The board will be SOURCE: 56 FR 55088, Oct. 24, 1991, unless convened in accordance with chapter otherwise noted. 18, Manual of the Medical Department. NOTE: This part 726 is chapter XIV, of the The board may include members of the Manual of the Judge Advocate General of the Reserve components on active or inac- Navy. tive duty. When active duty Navy or Marine corps members are hospitalized § 726.1 Purpose. in nonnaval medical facilities, the re- This part explains the procedures for gional Naval Office of the Medical/Den- convening competency boards and how tal Affairs will ensure compliance with to appoint trustees for members of the chapter 18. Naval service who have been deter- (2) The Judge Advocate General or mined to be mentally incompetent in his designee may direct the command- accordance with title 11 of chapter 37, ing officer of any naval medical facil- United States Code. ity, or request the commanding officer of another service medical facility or § 726.2 Scope. administrator of a Department of Vet- (a) The Secretary of the Navy has au- erans Affairs medical facility, to con- thority to designate a trustee in the vene a board in accordance with this absence of notice that a legal commit- section to determine the mental capa- tee, guardian, or other legal represent- bility of a member to manage his af- ative has been appointed by a State fairs. court of competent jurisdiction. 37 (3) A finding of restoration of com- U.S.C. 601-604. Trustees receive the ac- petency or capability to manage per- tive duty pay and allowances, amounts sonal and financial affairs may be ac- due for accrued or accumulated leave, and retired pay or retainer pay, that complished in the same manner speci- are otherwise payable to a member fied in chapter 18, Manual of the Medi- found by competent medical authority cal Department, except that the board to be mentally incapable of managing may consist of one or two medical offi- his affairs. cers or physicians, one of whom must (b) Member as used in this chapter re- be a psychiatrist. fers to: (4) At least one officer on the board, (1) Members of the Navy or Marine preferably the psychiatrist, will per- Corps on active duty (other than for sonally observe the member and ensure training) or on the retired list of the that the member’s medical record, par- Navy or Marine Corps; and ticularly that portion concerning his (2) Members of the Fleet Reserve or mental health, is accurate and com- Fleet Marine Corps Reserve. plete.
269
VerDate 25
(5) The requirement for the com- (2) Ascertain that the prospective petency board is in addition to and sep- trustee is willing to execute an affida- arate from the medical board proce- vit acknowledging that all monies will dures. Each board member will sign the be applied to the use and benefit of the report of the board and will certify member and his legal dependents and whether the member is or is not men- that no fee, commission, or charge, for tally capable of managing his affairs. any service performed by the trustee, After approval by the convening au- except for payment of the required thority, the original board report is bond, will be paid from Federal monies forwarded to the Judge Advocate Gen- received by the trustee. eral. (3) Forward recommendations to the (b) Records. (1) The convening author- Judge Advocate General for appro- ity will forward the original of each priate action. board report to the Judge Advocate General, Department of the Navy, 200 § 726.6 Travel orders. Stovall Street, Alexandria, VA 22332- The Chief of Naval Personnel or the 2400. Director, Personnel Management Divi- (2) In the case of a finding that a sion, Headquarters, Marine Corps, may member is not mentally capable of issue travel orders to a member to ap- managing his affairs, the forwarding pear before an examining board con- endorsement will set forth the name, vened to determine whether the mem- relationship, address, and telephone ber is mentally capable of managing number(s), of the member’s next of kin his affairs. In the case of permanently and any other data to help identify a retired members, however, travel for prospective trustee. an appearance before a board convened § 726.5 Procedures for designation of a pursuant to section 1404, above, will be trustee. at no cost to the Government unless the Judge Advocate General or his des- (a) Upon receipt of a report of a board ignee determines that unusual hard- convened under section 1404 that a ship exists and requests that appro- member has been found mentally in- priate authority fund the travel ex- capable of managing his affairs, the penses. Judge Advocate General or his designee will initiate action to appoint a trust- § 726.7 Status of pay account. ee, provided no notice of appointment of a committee, guardian, or other (a) Upon notification by the com- legal representative by a State court of manding officer of the medical facility competent jurisdiction has been re- preparing the incapacitation deter- ceived by the Judge Advocate General. mination that a member has been de- The Judge Advocate General or his des- clared mentally incompetent to man- ignee may direct any Navy or Marine age his affairs, the cognizant disburs- Corps activity to appoint an officer to ing officer will take appropriate action interview a prospective trustee and and immediately send the member’s make recommendations concerning personal financial record to the appro- suitability. The Judge Advocate Gen- priate finance center following the eral will provide the interviewing offi- guidelines in the Department of De- cer with complete instructions pertain- fense Military Pay and Allowances En- ing to the interview of the prospective titlements Manual, Part Four, chapter trustee, including the forms required 2. The Judge Advocate General or his to be completed by the prospective designee will then direct the appro- trustee that will be returned by the priate finance center to suspend the interviewing officer to the Judge Advo- member’s pay. Thereafter, the Judge cate General. Advocate General or his designee will (b) The interviewing officer will: (1) direct payment of monies to: Determine whether the prospective (1) The appointed trustee; trustee can obtain an appropriate bond (2) The legal representative ap- as directed by the Judge Advocate Gen- pointed by a State court of competent eral or his designee; jurisdiction; or
270
VerDate 25
(3) Directly to the member following § 726.9 Reports and supervision of a determination that the member is ca- trustees. pable of managing his affairs. (a) Accounting reports. The trustee (b) The Commanding Officer, Navy designated under this chapter will sub- Finance Center, or Commanding Offi- mit accounting reports annually or at cer, Marine Corps Finance Center, will such other times as the Judge Advo- notify the Judge Advocate General of cate General or his designee directs. any fact affecting the pay of a member The Judge Advocate General will pro- mentally incapable of managing his af- vide forms to be used by trustees for fairs. This includes waiver of retired the required accounting report. The re- pay in favor of Veterans Administra- port will account for all funds received tion compensation; death of the mem- from the Navy or Marine Corps on be- ber; death of the trustee; or, notice of half of the member. When payments to appointment of a legal representative a trustee are terminated for any rea- by a State court of competent jurisdic- son, the trustee will submit a final ac- tion. At the request of the Judge Advo- counting report to the Judge Advocate cate General or his designee, the appro- General. Upon approval of the final ac- priate finance center will report all counting report, the trustee and the disbursements from the member’s ac- surety will be discharged from liabil- count. ity. (c) The Navy or Marine Corps Fi- (b) Failure to submit a report and de- nance Center will seek direction from fault. If an accounting report is not re- the Judge Advocate General when in- ceived by the date designated by the formation from other sources indicates Judge Advocate General or his des- a member is not competent to manage ignee, or an accounting is unsatisfac- his affairs. tory, the Judge Advocate General or his designee will notify the trustee in § 726.8 Emergency funds. writing. If a satisfactory accounting is not received by the Judge Advocate (a) Until a trustee is appointed, the General within the time specified, the Judge Advocate General or his designee trustee will be declared in default of may appoint the member’s command- the trustee agreement and will become ing officer or other appropriate official liable for all unaccounted trustee to receive emergency funds up to funds. If a trustee is declared in default $1,000.00 from the pay account of the of the trustee agreement, the appro- member without bond. The money will priate finance center will be directed be used for the benefit of the member to terminate payments to the trustee and his legal dependents. and, if necessary, a successor trustee (b) The commanding officer of any may be appointed. The trustee and sur- naval medical facility may designate ety will be notified in writing by the an officer of the command to receive Judge Advocate General or his designee and account for up to $35.00 per month of the declaration of default. The noti- for the health and comfort of a member fication will state the reasons for de- who is found mentally incapable of fault, the amount of indebtedness to handling his affairs and who is a pa- the Government, and will demand pay- tient at the naval medical facility, if: ment for the full amount of indebted- (1) A trustee has not been designated ness. If payment in full is not received under this chapter and a committee, by the Judge Advocate General within guardian, or other legal representative an appropriate period of time from no- has not been appointed by a State tification of default, the account may court of competent jurisdiction; be forwarded to the Department of Jus- (2) The member has no other funds tice for recovery of funds through ap- available for use in his own behalf; and propriate civil action. (3) The funds are necessary for the purchase of items necessary for the PART 727—LEGAL ASSISTANCE health and comfort of the member. (c) This section will be cited on the Sec. pay voucher as authority for payment 727.1 Purpose. and receipt of such funds. 727.2–727.4 [Reserved]
271
VerDate 25
727.5 Persons eligible for assistance. (1) Shall counsel, advise, and assist 727.6 Functions of legal assistance officers. persons eligible for assistance in con- 727.7 Limitations on service provided. nection with their personal legal prob- 727.8 Confidential and privileged character lems, or refer such persons to a civilian of service provided. 727.9 Referrals to civilian lawyers. lawyer as provided in § 727.9. 727.10 Fees, compensation, solicitation, and (2) Shall serve as advocate and coun- representation in civilian courts. sel for persons eligible for assistance in 727.11 Supervision. connection with their personal legal 727.12 Communications. problems and may prepare and sign 727.13 Reports. correspondence on behalf of a client, 727.14 Files and records. negotiate with another party or his 727.15 Liberal construction of part. lawyer, and prepare all types of legal AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031 and documents, including pleadings. 5148; 32 CFR 700.206 and 700.1202. (3) Shall, in appropriate cases and SOURCE: 38 FR 6026, Mar. 6, 1973, unless oth- under guidelines prescribed in the Man- erwise noted. ual of the Judge Advocate General con- templating agreements or liaison with § 727.1 Purpose. appropriate civilian bar officials, serve A legal assistance program providing as advocate and counsel for, and pro- needed legal advice and assistance to vide full legal representation including military personnel and their depend- representation in court to, persons eli- ents has been in operation in the naval gible for assistance in connection with service since 1943. The program has im- their personal legal problems. proved the morale of personnel and re- (4) Shall, subject to the direction of duced disciplinary problems since its the senior legal assistance officer of inception. The purpose of this part is the command, establish contact and to provide guidelines for the continu- maintain liaison with local bar organi- ation of the program. zations, lawyer referral services, legal aid societies, and other local organiza- §§ 727.2–727.4 [Reserved] tions through which the services of ci- vilian lawyers may be made available § 727.5 Persons eligible for assistance. to military personnel and their depend- Legal assistance shall be available to ents. members of the Armed Forces of the (5) Shall supervise the personnel and United States and their dependents, operation of the legal assistance office and military personnel of allied na- in accordance with good legal practice tions serving in the United States, its and the policies and guidance provided territories or possessions. The service by the Judge Advocate General. is intended primarily for the benefit of (6) Shall advise persons with com- personnel during active service, but is plaints of discrimination on policies to be extended to retired military per- and procedures under the Civil Rights sonnel, their dependents, survivors of Act of 1964 and SECNAV Instruction members of the Armed Forces who 5350.5 series. would be eligible were the service (b) Nature of assistance. Legal assist- member alive, and in overseas areas, to ance officers and administrative and civilians, other than local-hire employ- clerical personnel assigned to legal as- ees, who are in the employ of, serving sistance offices perform legal assist- with, or accompanying the U.S. Armed ance duties as official duties in the ca- Forces, and their dependents, when and pacity of an officer or an employee of if the workload of the office renders the United States. Persons performing such service feasible. legal assistance duties, however, should not mislead those with whom § 727.6 Functions of legal assistance of- they may deal into believing that their ficers. views or opinions are the official views (a) Basic duties. A legal assistance of- or opinions of, approved by, or binding ficer, while performing legal assistance on, the Department of the Navy or the duties, in addition to performing any United States. other duties which may be assigned to (c) Duty to client. A legal assistance him: officer should exercise his independent
272
VerDate 25
professional judgment on behalf of his (b) Domestic-relations cases. In domes- client within the standards promul- tic-relations cases, a legal assistance gated in the Code of Professional Re- officer may, with the knowledge and sponsibility and the specific limita- consent of both parties, and where nei- tions imposed in this part. ther party is represented by counsel, (d) Professional legal advice. Only legal consult both parties without impropri- assistance officers are authorized to ety. render services that call for the profes- (c) Nonlegal advice. The legal assist- sional judgment of a lawyer. The legal ance officer, while giving legal advice, assistance officer may delegate tasks may also determine that the client to clerks, secretaries, and other lay needs or desires advice on related personnel provided the officer main- nonlegal matters. The legal assistance tains a direct relationship with the cli- officer should provide legal advice ent, supervises the delegated work, and only, or defer giving such advice, and has complete professional responsibil- refer the client to an appropriate per- ity for the work product. Services that son or agency for such nonlegal coun- call for the professional judgment of a seling. The legal assistance officer lawyer include, but are not limited to, should establish and maintain a work- the preparation of wills and powers of ing relationship with those individuals attorney, advising personnel with re- who are qualified to provide nonlegal spect to legal rights and relationships, counseling services. negotiating contracts, and other mat- (d) Proceedings involving the United ters requiring an educated ability to States. A legal assistance officer shall relate the general body and philosophy not advise on, assist in, or become in- of law to a specified legal problem of a volved with, individual interests op- client. Guidance in this matter may be posed to or in conflict with the United had from various official sources in- States without the specific approval of cluding the ethical considerations the Judge Advocate General. In this under Canon 3 of the Code of Profes- connection see also 18 U.S.C. 201, and 18 sional Responsibility of the American U.S.C. 205. Bar Association and particularly EC 3– (e) Telephone inquiries. In the absence 2, 3–5, 3–6, and DR 3–101(A). of unusual or compelling cir- cumstances, legal advice should not be [41 FR 26863, June 30, 1976, as amended at 47 given over the telephone. FR 41561, Sept. 21, 1982] [41 FR 26863, June 30, 1976] § 727.7 Limitations on service pro- vided. § 727.8 Confidential and privileged (a) Assistance in official military mat- character of service provided. ters. Legal assistance duties are sepa- All information and files pertaining rate and apart from the responsibilities to the persons served will be treated as of a trial counsel, defense counsel, or confidential and privileged in the legal other officer involved in the processing sense as outlined in Canon 4 of the of courts-martial, nonjudicial punish- Code of Professional Responsibility, as ment, administrative boards or pro- opposed to confidential in the military ceedings, investigations, or other offi- sense of security information. These cial military matters. Frequently, a privileged matters may not be dis- serviceman accused or suspected of an closed to anyone by personnel render- offense or of conduct leading to admin- ing the service, except upon the spe- istrative proceedings will request ad- cific permission of the person con- vice from the legal assistance officer. cerned, and disclosure thereof may not In such a case, he should be advised of be lawfully ordered by superior mili- the proper procedures for obtaining tary authority. This restriction does counsel or advice. This limitation does not prohibit providing the nonprivi- not prevent the assignment of the same leged statistical data required by officer to perform the functions of a § 727.13 of this part. Protection of the legal assistance officer and the func- confidences of a legal assistance client tions of a defense counsel, counsel for a is essential to the proper functioning of respondent, or counsel for a party. the legal assistance program in order
273
VerDate 25
to assure all military personnel, re- understanding between the client and gardless of grade, rank, or position, his civilian lawyer. that they may disclose frankly and completely all material facts of their § 727.10 Fees, compensation, solicita- problem to those rendering the service tion, and representation in civilian without fear that their confidence will courts. be abused or used against them in any (a) General. Active duty military per- way. While case files are not subject to sonnel and civilian employees of the the control of the Department of the Navy and Marine Corps are prohibited Navy and therefore do not constitute a from accepting or receiving, directly or ‘‘system of records’’ within the mean- indirectly, any fee or compensation of ing of the Privacy Act of 1974 (5 U.S.C. any nature, in cash or otherwise, for 552a), no information which identifies legal services rendered to any person an individual legal assistance client by entitled to legal assistance under this name or any other particular, such as part whether or not the service ren- social security number, shall be ex- dered is normally provided or available tracted from the case files and incor- to such person under this part and porated into any file or index system whether or not the service is rendered aside from or in addition to the infor- during duty hours as a part of official mation contained on the legal assist- duties. Reserve judge advocates on in- ance form (NAVJAG 5801/9) or locally active duty are prohibited from accept- used equivalent. Strict adherence to ing or receiving any fee or compensa- the foregoing will ensure compliance tion of any nature, in cash or other- with the Privacy Act. Administrative wise, for legal services rendered to any and clerical personnel assigned to legal person entitled to legal assistance assistance offices shall maintain the under this part with respect to matters confidential nature of matters handled. about which they consulted or advised said person in an official capacity. The [42 FR 35957, July 13, 1977] prohibition may be waived only by the Judge Advocate General of the Navy or § 727.9 Referrals to civilian lawyers. the Director, Naval Legal Service, as (a) General. If it is determined that appropriate, in extraordinary cir- the legal assistance requested is be- cumstances on a case by case basis for yond the scope of this part, or if no inactive duty Reserve judge advocates available legal assistance officer is who consulted with or advised an eligi- qualified to give the assistance re- ble client in an official capacity. Be- quested, the client should be referred fore a waiver may be granted, the fol- to a civilian lawyer. When the client lowing criteria, as well as other rel- does not know of a lawyer whom he evant criteria, shall be considered: wishes to represent him, his case may (1) Whether the waiver is specifically be referred to an appropriate bar orga- requested by the party concerned or an nization, lawyer referral service, legal appropriate representative, aid society, or other local organization (2) Whether there is a likelihood that for assistance in obtaining reliable, undue and substantial prejudice will competent, and sympathetic counsel, otherwise be suffered by the party con- or to a civilian lawyer designated by cerned, such organization. (3) Whether adequate continued rep- (b) Fees charged by civilian lawyers. resentation for compensation is other- Legal assistance clients being referred wise reasonably available, and to a civilian lawyer should be advised (4) Whether the requested representa- that, even when the fee to be charged is tion will violate the Code of Profes- set by statute or subject to court ap- sional Responsibility of the American proval, it should be one of the first Bar Association or other applicable items discussed to avoid later mis- legal or ethical requirements. understandings and eliminate uncer- (b) Solicitation. Active duty military tainty. Legal assistance officers should personnel, civilian employees of the exercise caution in discussing possible Navy and Marine Corps, and inactive fees to be charged by civilian lawyers reservists, acting in an official capac- so as to avoid embarrassment or mis- ity, are prohibited from soliciting, or
274
VerDate 25
advising that any person entitled to § 727.12 Communications. legal assistance under this part retain, (a) Legal assistance officers are au- consult, or seek legal services from themselves in their private capacities, thorized to communicate directly with or from any attorney who is a partner the Judge Advocate General, with each or associate of a law firm of which they other, and with other appropriate orga- are partners or associates, or from any nizations and persons concerning legal attorney with whom they share office assistance matters. spaces; Provided that nothing herein (b) The use of a legal assistance of- shall prevent such person from being fice letterhead within the Department referred to civilian counsel as provided of the Navy is authorized as an excep- in § 727.9. tion to the standard letterhead require- (c) Representation before civilian courts ments contained in Department of De- or agencies. No active duty Navy or Ma- fense Instruction 5330.2 of July 12, 1968. rine Corps judge advocate may appear A sample of the letterhead to be used as counsel on behalf of any person enti- is: tled to legal assistance, except as pro- vided in paragraph (a)(3) of § 727.6 and Legal Assistance Office, Building 200, Wash- ington Navy Yard, Washington, DC 20374, under guidelines prescribed in the Man- Tel: 202–433–4331. ual of the Judge Advocate General be- fore any civil court, civil administra- Naval Legal Service Offices and other tive tribunal, civil regulatory body, or commands having authorized legal as- civil governmental agency, in any pro- sistance officers are authorized to print ceeding, whether or not a fee or other and use letterheads without seal or of- compensation is accepted or received, ficial command designation in those without prior written approval of the matters in which the correspondence Judge Advocate General, or the Direc- pertains solely to legal assistance mat- tor, Naval Legal Service, as appro- ters. Legal assistance officers are di- priate. Requests for such permission rected to ensure that their correspond- may be in the form prescribed in the ence does not imply United States Manual of the Judge Advocate General. Navy or command sponsorship or ap- [47 FR 41561, Sept. 21, 1982] proval of the substance of the cor- respondence. Such correspondence is § 727.11 Supervision. considered a private matter arising The Judge Advocate General will ex- from the attorney-client relationship ercise supervision over all legal assist- as indicated in § 727.8. ance activities in the Department of [42 FR 35958, July 13, 1977] the Navy. Subject to the supervision of the Judge Advocate General, officers in § 727.13 Reports. charge of Naval Legal Service Offices, and all Marine Corps commanders exer- Each legal assistance office shall, by cising general court-martial authority, the 10th day of October of each year, acting through their judge advocates, prepare and submit to the Judge Advo- shall exercise supervision over all legal cate General one copy of the Legal As- assistance activities within their re- sistance Report (NAVJAG 5801/3 Rev. spective areas of responsibility and 12–78)) covering the preceding fiscal shall ensure that legal assistance serv- year. A final report shall be submitted ices are made available to all eligible on the disestablishment of the legal as- personnel within their areas. The sistance office. Special reports shall be Judge Advocate General will collabo- submitted when requested by the Judge rate with the American Bar Associa- Advocate General. Information copies tion, the Federal Bar Association, and of all reports shall be furnished to the other civilian bar organizations as he supervising commander referred to in may deem necessary or advisable in the § 727.11. Reports symbol JAG–5801–1 is accomplishment of the objectives and assigned for this reporting require- purposes of the legal assistance pro- ment. gram. [38 FR 6026, Mar. 6, 1973, as amended at 47 FR [42 FR 35957, July 13, 1977] 41561, Sept. 21, 1982]
275
VerDate 25
§ 727.14 Files and records. Subpart D—Retired Members and Dependents of the Uniformed Services (a) Case files. The material contained in legal assistance case files is nec- 728.31 Eligible beneficiaries and health ben- essarily limited to private unofficial efits authorized. matters and such material is privileged 728.32 Application for care. and protected under the attorney-cli- 728.33 Nonavailability statement (DD 1251). 728.34 Care beyond the capabilities of a ent relationship. Each legal assistance naval MTF. office should therefore maintain only 728.35 Coordination of benefits—third party such files as are necessary for the prop- payers. er operation of the office. 728.36 Pay patients. (b) [Reserved] Subpart E—Members of Foreign Military [38 FR 6026, Mar. 6, 1973, as amended at 43 FR Services and Their Dependents 17355, Apr. 24, 1978] 728.41 General provisions. § 727.15 Liberal construction of part. 728.42 NATO. 728.43 Members of other foreign military The provisions of this part are in- services and their dependents. tended to be liberally construed to aid 728.44 Members of security assistance train- in accomplishing the mission of legal ing programs, foreign military sales, and assistance. their ITO authorized dependents. 728.45 Civilian components (employees of foreign military services) and their de- PART 728—MEDICAL AND DENTAL pendents. CARE FOR ELIGIBLE PERSONS AT 728.46 Charges and collection. NAVY MEDICAL DEPARTMENT Subpart F—Beneficiaries of Other Federal FACILITIES Agencies Subpart A—General 728.51 General provisions—the ‘‘Economy Act’’. Sec. 728.52 Veterans Administration bene- 728.1 Mission of Navy Medical Department ficiaries (VAB). facilities. 728.53 Department of Labor, Office of Work- 728.2 Definitions. ers’ Compensation Programs (OWCP) 728.3 General restrictions and priorities. beneficiaries. 728.4 Policies. 728.54 U.S. Public Health Service (USPHS), other than members of the uniformed Subpart B—Members of the Uniformed services. Services on Active Duty 728.55 Department of Justice beneficiaries. 728.56 Treasury Department beneficiaries. 728.11 Eligible beneficiaries. 728.57 Department of State and associated 728.12 Extent of care. agencies. 728.58 Federal Aviation Agency (FAA) bene- 728.13 Application for care. ficiaries. 728.14 Pay patients. 728.59 Peace Corps beneficiaries. 728.60 Job Corps and Volunteers in Service Subpart C—Members of Reserve Compo- to America (VISTA) beneficiaries. nents, Reserve Officers’ Training Corps, 728.61 Medicare beneficiaries. Navy and Marine Corps Officer Can- didate Programs, and National Guard Subpart G—Other Persons Personnel 728.71 Ex-service maternity care. 728.21 Navy and Marine Corps reservists. 728.72 Applicants for enrollment in the Sen- 728.22 Members of other reserve components ior Reserve Officers’ Training Program. of the uniformed services. 728.73 Applicants for enlistment or reenlist- 728.23 Reserve Officers’ Training Corps ment in the Armed Forces, and appli- (ROTC). cants for enlistment in the reserve com- ponents. 728.24 Navy and Marine Corps Officer Can- 728.74 Applicants for appointment in the didate Programs. regular Navy or Marine Corps and re- 728.25 Army and Air Force National Guard serve components, including members of personnel. the reserve components who apply for ac- tive duty.
276
VerDate 25
728.75 Applicants for cadetship at service vide that Navy Medical Department fa- academies and applicants for the Uni- cilities may be called upon to furnish formed Services University of Health medical and dental care, under laws of Sciences (USUHS). humanity or principles of international 728.76 Naval Home residents. 728.77 Secretarial designees. courtesy, to civilians and to other per- 728.78 American Red Cross representatives sons not otherwise entitled to medical and their dependents. and dental care. 728.79 Employees of Federal contractors and subcontractors. § 728.2 Definitions. 728.80 U.S. Government employees. Unless otherwise qualified in this 728.81 Other civilians. part, the following terms, when used 728.82 Individuals whose military records throughout, are defined as follows: are being considered for correction. 728.83 Persons in military custody and non- (a) Active duty. Full-time duty in the military Federal prisoners. active military service of the United States. This includes full-time training Subpart H—Adjuncts to Medical Care duty; annual training duty; and attend- ance, while in the active military serv- 728.91 General. ice, at a school designated as a service 728.92 Policy. 728.93 Chart of Adjuncts. school by law or by the Secretary of the military department concerned. It Subpart I—Reservists—Continued Treat- does not include full-time National ment, Return to Limited Duty, Separa- Guard duty. tion, or Retirement for Physical Disabil- (b) Active duty for training. A tour of ity active duty for reserves for training under orders that provide for auto- 728.101 General. matic reversion to non-active status 728.102 Care from other than Federal when the specified period of active sources. duty is completed. It includes annual Subpart J—Initiating Collection Action on training, special tours, and the initial Pay Patients tour performed by enlistees without prior military service. 728.111 General. (c) CHAMPUS. Civilian Health and 728.112 Responsibilities. Medical Program of the Uniformed 728.113 Categories of pay patients. Services. AUTHORITY: 5 U.S.C. 301 and 8101; 10 U.S.C. (d) Catchment area. A specified geo- 1071–1095, 1201–1221, 2104, 2107, 2109, 2110, 5031, graphic area surrounding each Uni- 5537, 6011, 6201–6203; 22 U.S.C. 1158, 2357, 2504, formed Services Medical Treatment 2505, 2507, 2522; 24 U.S.C. 15, 34, 35; 31 U.S.C. Facility (USMTF) or designated Uni- 1535; 42 U.S.C. 249, 253; and 32 CFR 700.1202. formed Services Treatment Facility SOURCE: 52 FR 33718, Sept. 4, 1987, unless (USTF). In the United States, otherwise noted. catchment areas are defined by zip codes and are based on an area of ap- Subpart A—General proximately 40 miles in radius for inpa- tient care and 20 miles in radius for § 728.1 Mission of Navy Medical De- ambulatory care. Zip codes designating partment facilities. such areas in the United States are The primary mission of Navy Medical specified in Volumes I and II of the Department facilities is to provide Military Health Services System medical and dental care for members of (MHSS) Catchment Area Directory. the Navy and Marine Corps and for Catchment areas for facilities outside members of the other uniformed serv- the United States are defined in Vol- ices who may be sick, injured, or dis- ume III of the MHSS Catchment Area abled. In addition, Navy Medical De- Directory. These directories exclude partment facilities may provide medi- certain areas because of geographic cal and dental care to dependents of barriers. military personnel, to members not on (e) Chronic condition. Any medical or active duty, and to such other persons surgical condition marked by long du- as authorized by law, U.S. Navy regula- ration or frequent recurrence—or like- tions, and Department of Defense di- ly to be so marked—which, in light of rectives. These authorizations also pro- 277
VerDate 25
medical information available, will or- ignated USTFs’’ for the purpose of ren- dinarily resist efforts to eradicate it dering medical and dental care to ac- completely; a condition which needs tive duty members and to all health benefits to achieve or maintain CHAMPUS-eligible individuals. stability that can be provided safely (1) Sisters of Charity of the Incarnate only by, or under the supervision of, Word Health Care System, 6400 physicians, nurses, or persons author- Lawndale, Houston, TX 77058 (713) 928– ized by physicians. 2931 operates the following facilities: (f) Civilian employee. Under 5 U.S.C. (i) St. John Hospital, 2050 Space Park 2105, a nonmilitary individual (1) ap- Drive, Nassau Bay, TX 77058, telephone pointed in the civil service, (2) engaged (713) 333–5503. Inpatient and outpatient in the performance of a Federal func- services. tion, or (3) engaged in the performance (ii) St. Mary’s Hospital Outpatient of his or her duties while subject to the Clinic, 404 St. Mary’s Boulevard, Gal- supervision of The President, a Member veston, TX 77550, telephone (409) 763– or Members of Congress, or the Con- 5301. Outpatient services only. gress, a member of a uniformed service, (iii) St. Joseph Hospital Ambulatory an individual who is an employee under Care Center, 1919 La Branch, Houston, 5 U.S.C. 2105, the head of a Government TX 77002, telephone (713) 757–1000. Out- controlled corporation, or an adjutant patient services only. general designated by the Secretary (iv) St. Mary’s Hospital Ambulatory concerned under section 709c of title 32. Care Center, 3600 Gates Boulevard, Included are justices and judges of the Port Arthur, TX 77640 (409) 985–7431. United States, appointed and engaging Outpatient services only. in the performance of duties per 5 (2) Inpatient and outpatient services. (i) U.S.C. 2104. Wyman Park Health System, Inc., 3100 (g) Cooperative care. Medical services Wyman Park Drive, Baltimore, MD and supplies for which CHAMPUS will 21211, telephone (301) 338–3693. share in the cost under circumstances (ii) Alston-Brighton Aid and Health specified in § 728.4(z), even though the Group, Inc., Brighton Marine Public patient remains under the primary Health Center, 77 Warren Street, Bos- control of a USMTF. ton, MA 02135, telephone (617) 782–3400. (h) Cooperative care coordinator. Des- (iii) Bayley Seton Hospital, Bay ignated individual in a CHAMPUS con- Street and Vanderbilt Avenue, Staten tractor’s office who serves as the point Island, NY 10304, telephone (718) 390– of contact for health benefits advisors 5547 or 6007. on all matters related to supplemental- (iv) Pacific Medical Center, 1200 12th cooperative care or services provided Avenue South, Seattle, WA 98144, tele- or ordered for CHAMPUS-eligible bene- phone (206) 326–4100. ficiaries by USMTF providers. (3) Outpatient services only. (i) Coastal (i) Dental care. Treatment which will Health Service, 331 Veranda Street, prevent or remedy diseases, disabil- Portland, ME 04103, telephone (207) 774– ities, and injuries to the teeth, jaws, 5805. and related structures and thereby con- (ii) Lutheran Medical Center, Down- tribute to maintenance or restoration town Health Care Services, 1313 Supe- of the dental health of an individual. rior Avenue, Cleveland, OH 44113, tele- (j) Dependent. A spouse, an phone (216) 363–2065. unremarried widow or widower, a child, (l) Disability retirement or separation. or a parent who bears that legal rela- Temporary or permanent retirement or tionship to his or her sponsor. For the separation for physical disability as purpose of rendering care under title provided in title 10, U.S.C., 1201–1221. 10, U.S.C., chapter 55, this category (m) Elective care. Medical, surgical, or may also include an unremarried dental care desired or requested by the former spouse. However, each bene- individual or recommended by the phy- ficiary must also meet the eligibility sician or dentist which, in the opinion criteria in § 728.31(b) and § 728.31(c). of other cognizant professional author- (k) Designated USTFs. The following ity, can be performed at another place former U.S. Public Health Service or time without jeopardizing life, limb, (USPHS) facilities operate as ‘‘des- health, or well-being of the patient,
278
VerDate 25
e.g., surgery for cosmetic purposes and individual. Medical care may include, nonessential dental prosthetic appli- but is not limited to, the furnishing of ances. inpatient treatment, outpatient treat- (n) Emergency care. Medical treat- ment, nursing service, medical exami- ment of patients with severe, life- nations, immunizations, drugs, subsist- threatening, or potentially disabling ence, transportation, and other ad- conditions that require immediate juncts such as prosthetic devices, spec- intervention to prevent undue suffering tacles, hearing aids, orthopedic foot- or loss of life or limb and dental treat- wear, and other medically indicated ment of painful or acute conditions. appliances or services. (o) Health benefits advisors (HBA). (u) Medically inappropriate. A situa- Designated individuals at naval facili- tion arising when denial of a Nonavail- ties who are responsible for advising ability Statement could result in sig- and assisting beneficiaries covered in nificant risk to the health of a patient this part concerning medica1 and den- or significant limitation to the pa- tal benefits in uniformed services fa- tient’s reasonable access to needed cilities and under CHAMPUS. They health care. also provide information regarding (v) Medically necessary. The level of Veterans’ Administration, Medicare, services and supplies (i.e., frequency, MEDICAID, and such other local extent, and kinds) adequate for the di- health programs known to be available agnosis and treatment of illness or in- to beneficiaries (see § 728.4(n)). jury, including maternity care. Medi- (p) Hospitalization. Inpatient care in a cally necessary, includes the concept of medical treatment facility. appropriate medical care. (q) Inactive duty training. Duty pre- (w) Medical treatment facility (MTF). scribed for Reserves by the Secretary Any duly authorized medical depart- concerned under section 206 of title 37, ment center, hospital, clinic, or other U.S.C. or any other provision of law. facility that provides medical, sur- Also includes special additional duties gical, or dental care. authorized for Reserves by an author- (x) Member or former member. Includes: ity designated by the Secretary con- (1) Members of the uniformed serv- cerned and performed on a voluntary ices ordered to active duty for more basis in connection with the prescribed than 30 days. training or maintenance activities of (2) Retired members as defined in the units to which they are assigned. It § 728.2(bb). includes those duties when performed (3) Members of a uniformed service by Reserves in their status as members ordered to active duty for more than 30 of the National Guard. days who died while on that duty. (r) Legitimate care. Those medical and (4) Deceased retired members. dental services under the cooperative/ (y) Military patient. A member of a supplemental care program of United States uniformed service on ac- CHAMPUS that are legally performed tive duty, active duty for training, or and not contrary to governing statutes. inactive duty training, or an active (s) Maximum hospital benefit. That duty member of the armed forces of a point during inpatient treatment when foreign government who is receiving the patient’s progress appears to have inpatient or outpatient care. stabilized and it can be anticipated (z) Occupational health services. In- that additional hospitalization will not cludes medical examinations and tests directly contribute to any further sub- related to preemployment, stantial recovery. A patient who will preplacement, periodic, and continue to improve slowly over a long pretermination; tests required for pro- period without specific therapy or med- tecting the health and safety of naval ical supervision, or with only a mod- personnel; job-related immunizations erate amount of treatment on an out- and chemoprophylaxis; education and patient basis, may be considered as training related to occupational having attained maximum hospital health; and other services provided to benefit. avoid lost time or to improve effective- (t) Medical care. Treatment required ness of employees. The latter will in- to maintain or restore the health of an clude the furnishing of emergency
279
VerDate 25
treatment of illnesses or injuries oc- of an eligible beneficiary in quarters; curring at work. Furnish such health and a signed and dated entry is made in services to both active duty military the patient’s health record. Specifi- personnel and naval civilian employees cally excluded are personnel in an in- per current directives. patient status at the time of such a (aa) Retired member. A member or visit. former member of a uniformed service who is entitled to retired or retainer § 728.3 General restrictions and prior- pay, or equivalent pay, as a result of ities. service in a uniformed service. This in- (a) Restrictions. (1) Naval MTFs pro- cludes a member or former member vide care to all eligible beneficiaries who is: (1) Retired for length of service; subject to the capabilities of the pro- (2) permanently or temporarily retired fessional staff and the availability of for physical disability; (3) on the emer- space and facilities. gency officers’ retired list and is enti- (2) Hospitalization and outpatient tled to retired pay for physical disabil- services may be provided outside the ity; or (4) otherwise in receipt of re- continental limits of the United States tired pay under chapter 67 of title 10. and in Alaska to officers and employ- (bb) Routine care. Medica1 and dental ees of any department or agency of the care necessary to maintain health or Federal Government, to employees of a dental functions other than care of an contractor with the United States or emergency or elective nature. the contractor’s subcontractor, to ac- (cc) Supplemental care or services. companying dependents of such per- When medical or dental management is sons, and in emergencies to such other retained by a naval MTF and required persons as the Secretary of the Navy care is not available at the facility re- may prescribe: Provided, such services taining management, any additional are not otherwise available in reason- material, professional diagnostic or ably accessible and appropriate non- consultative services, or other personal Federal facilities. Hospitalization of services ordered by qualified uniformed such individuals in a naval MTF is lim- service providers, and obtained for the ited to the treatment of acute medical care of that patient are supplemental. and surgical conditions, exclusive of See § 728.12 concerning the management nervous, mental, or contagious dis- of active duty member patients. eases, or those requiring domiciliary (dd) Uniformed services. The Navy, care. Routine dental care, other than Marine Corps, Air Force, Army, Coast dental prosthesis or orthodontia, may Guard, Commissioned Corps of the Pub- be rendered on a space available basis lic Health Service, and the Commis- outside the continental limits of the sioned Corps of the National Oceanic United States and in Alaska, Provided, and Atmospheric Administration. such services are not otherwise avail- (ee) USMTF. Uniformed services med- able in reasonably accessible and ap- ical treatment facility. propriate non-Federal facilities. (ff) Visit, outpatient. Appearance by (b) Priorities. When care cannot be an eligible beneficiary at a separate, rendered to all eligible beneficiaries, organized clinic or specialty service the priorities in the following chart for: Examination, diagnosis, treat- will prevail. Make no distinction as to ment, evaluation, consultation, coun- the sponsoring uniformed service when seling, or medical advice; or treatment providing care or deciding priorities.
PRIORITIES FOR THE VARIOUS CATEGORIES OF PERSONNEL ELIGIBLE FOR CARE IN NAVY MEDICAL DEPARTMENT FACILITIES
Prior- ity Category Degree of entitlement
1 ...... A. Members of the uniformed services on active duty (including active duty See Subpart B. for training and inactive duty training) and comparable personnel of the NATO nations meeting the conditions prescribed in this part. B. Members of a Reserve Component of the Armed Forces and National See Subpart C. Guard personnel under orders.
280
VerDate 25
PRIORITIES FOR THE VARIOUS CATEGORIES OF PERSONNEL ELIGIBLE FOR CARE IN NAVY MEDICAL DEPARTMENT FACILITIESÐContinued
Prior- ity Category Degree of entitlement
2 ...... Dependents of active duty members of the uniformed services, dependents See Subparts D and of persons who died while in such a status, and the dependents of active E. duty members of NATO nations meeting the conditions prescribed in sub- part E of this part. 3 ...... Members ot the Senior Reserve Officers' Training Corps of the Armed See § 728.23. Forces. 4 ...... Retired members of the uniformed services and their dependents and de- See Subpart D. pendents of deceased retired members. 5 ...... Civilian employees of the Federal Government under the limited cir- See § 728.80. cumstances covered by the Federal Employees' Health Service program. 6 ...... All others, including ex-service maternity eligibles ...... See Subparts F and G.
§ 728.4 Policies. ber’s commanding officer (CO) or the hospital’s CO per the following: (a) Admissions to closed psychiatric (1) Unless otherwise indicated, grant wards. Admit patients to closed psy- such leave only when recommended by chiatric wards only when they have a COMNAVMEDCOM through action psychiatric or emotional disorder taken upon a report by a medical which renders them dangerous to board, or the recommended findings of themselves or others, or when a period a physical evaluation board or higher of careful closed psychiatric observa- authority. tion is necessary to determine whether (2) Member’s commanding officer such a condition exists. When a patient (upon advice of attending physician); is admitted to a closed psychiatric commanding officers of Navy, Army, or ward, the reason for admission must be Air Force medical facilities; command- clearly stated in the patient’s clinical ers of regional medical commands for record by the physician admitting the persons hospitalized in designated patient to the ward. These same poli- USTFs or in civilian facilities within cies apply equally in those instances their respective areas of authority; and when it becomes necessary to place a managers of Veterans Administration patient under constant surveillance hospitals within the 50 United States while in an open ward. or in puerto Rico may grant convales- (b) Absence from the sick list. See cent leave to active duty naval pa- § 728.4 (d), (x), and (y). tients, with or without reference to a (c) Charges and collection. Charges for medical board, physical evaluation services rendered vary and are set by board, or higher authority provided the Office of the Assistant Secretary of the: Defense (Comptroller) and published in (i) Convalescent leave is being grant- a yearly NAVMEDCOMNOTE 6320, ed subsequent to a period of hos- (Cost elements of medical, dental, sub- pitalization. sistence rates, and hospitalization (ii) Member is not awaiting discipli- bills). Billing and collection actions nary action or separation from the also vary according to entitlement or service for medical or administrative eligibility and are governed by the pro- reasons. visions of NAVMED P-5020, Resource (iii) Medical officer in charge: Management Handbook. See subpart J (A) Considers the convalescent leave on the initiation of collection action beneficial to the patient’s health. on pay patients. (B) Certifies that the patient is not (d) Convalescent leave. Convalescent fit for duty, will not need hospital leave, a period of authorized absence of treatment during the contemplated active duty members under medical convalescent leave period, and that care when such persons are not yet fit such leave will not delay final disposi- for duty, may be granted by a mem- tion of the patient.
281
VerDate 25
(3) When considered necessary by the tion of skills to meet the requirements attending physician and approved on of certification and recertification. an individual basis by the commander (ii) Insofar as they meet minimum of the respective geographic regional requirements and serve to improve the medical command, convalescent leave skills and techniques needed for recon- in excess of 30 days may be granted. structive surgery, the following cos- The authority to grant convalescent metic procedures may be performed as leave in excess of 30 days may not be low priority surgery on active duty redelegated to hospital commanding members only when time and space are officers. Member’s permanent com- available. mand must be notified of such exten- (A) Cosmetic facial rhytidectomies sions (see MILPERSMAN 3020360). (face lifts) will be a part of all training (4) Exercise care in granting con- programs required by certifying valescent leave to limit the duration of boards. such leave to that which is essential in (B) Cosmetic augmentation relation to diagnosis, prognosis, esti- mammaplasties will be done only by mated duration of treatment, and pa- properly credentialed surgeons and tient’s probable final disposition. residents within surgical training pro- (5) Upon return from convalescent grams to meet requirements of certify- leave; ing boards. (f) Cross-utilization of uniformed serv- (i) Forward one copy of original or- ices facilities. To provide effective cross- ders of officers, bearing all endorse- utilization of medical and dental facili- ments, to the Commander, Naval Mili- ties of the uniformed services, eligible tary Personnel Command persons, regardless of service affili- (COMNAVMILPERSCOM) (NMPC–4) or ation, will be given equal opportunity the Commandant of the Marine Corps for health benefits. Catchment areas (CMC), as appropriate. have been established by the Depart- (ii) Make an entry on the administra- ment of Defense for each USMTF (see tive remarks page (page 13 for Navy § 728.2(d)). Eligible beneficiaries resid- personnel) of the service records of en- ing within such a catchment area are listed personnel indicating that con- expected to use that inpatient facility valescent leave was granted and the for care. Make provisions to assure dates of departure and return. that: (6) lf considered beneficial to the pa- (1) Eligible beneficiaries residing in a tient’s health, commanding officers of catchment area served by a USMTF hospitals may grant convalescent leave not of the sponsor’s own service may as a delay in reporting back to the par- obtain care at that facility or at a fa- ent command. cility of the sponsor’s service located (e) Cosmetic surgery. (1) Defined as in another catchment area. that surgery which is done to revise or (2) If the facility to which an eligible change the texture, configuration, or beneficiary applies cannot furnish relationship of contiguous structures needed care, the other facility or facili- of any feature of the human body ties in overlapping catchment areas are which would be considered by the aver- contacted to determine whether care age prudent observer to be within the can be provided thereat. broad range of ‘‘normal’’ and accept- (g) Disengagement. Discontinuance of able variation for age or ethnic origin, medical management by a naval MTF and in addition, is performed for a con- for only a specific episode of care. dition which is judged by competent (1) General. Disengagement is accom- medical opinion to be without poten- plished only after alternative sources tial for jeopardy to physical or mental of care (i.e., transfer to another health of an individual. USMTF, a USTF, or other Federal (2) Commanding officers will mon- source via the aeromedical evacuation itor, control, and assure compliance system, if appropriate) and attendant with the following cosmetic surgery costs, if applicable, have been fully ex- policy: plained to patient or responsible fam- (i) Certain cosmetic procedures are a ily member. Counselors may arrange necessary part of training and reten- for counseling by other appropriate
282
VerDate 25
sources when the patient is or may be ber, the counselor will file a copy of eligible for VA, Medicare, MEDICAID, the DD 2161 and the original of the etc. benefits. With the individual’s per- NAVMED 6320/30 in the patient’s mission, counselors may also contact Health Record. State programs, local health organiza- (3) Patients other than active duty or tions, or health foundations to deter- CHAMPUS-eligible individuals—(i) Cat- mine if care is available for the condi- egories of patients. The following are tion upon which disengagement is categories of individuals who also may based. After the disengagement deci- be disengaged: sion is made, the patient to be dis- (A) Medicare-eligible individuals. engaged or the responsible family (B) MEDICAID-eligible individuals. member should be advised to return to (C) Civilians (U.S. and foreign) ad- the naval MTF for any care required mitted or treated as civilian humani- subsequent to receiving the care that tarians. necessitated disengagement. (D) Secretarial designees. (2) CHAMPUS-eligible individuals. (i) Issue a Nonavailability Statement (DD (E) All other individuals, with or 1251) per § 728.33, when appropriate, to without private insurance, who are not patients released to civilian sources for eligible for care at the expense of the total care (disengaged) under Government. CHAMPUS. CHAMPUS-eligible pa- (ii) Disengagement decision. Disengage tients disengaged for total care, who do such individuals when: not otherwise require a DD 1251 (re- (A) Required services are beyond the leased for outpatient care or those re- capability of the MTF, and services leased whose residence is outside the necessary for continued treatment in inpatient catchment area of all the MTF cannot be appropriately pro- USMTFs and USTFs) will be given the vided by another USMTF, a USTF, or original of a properly completed DD another Federal source. (Explore alter- 2161, Referral For Civilian Medical native sources, for individuals eligible Care, which clearly indicates that the for care from these sources, before patient is released for total care under making the disengagement decision.) CHAMPUS. CHAMPUS-eligible bene- (B) The MTF cannot, within the fa- ficiaries will be disengaged for services cility’s capability, effectively provide under CHAMPUS when: required care or manage the overall (A) Required services are beyond course of treatment even if augmented your capability and these services can- by services procured from other Gov- not be appropriately provided through ernment sources or through procure- one of the alternatives listed in ment from civilian sources using sup- § 728.4(z), or plemental care funding. (B) You cannot effectively provide re- (iii) Counseling. The initial step in quired services or manage the overall the disengagement process is appro- course of care even if augmented by priate counseling and documentation. services procured from other Govern- In an emergency, or when the individ- ment or civilian sources using naval ual cannot be appropriately counseled MTF operation and maintenance funds prior to leaving the MTF, establish as authorized in subpart § 728.4(z). procedures to ensure counseling and (ii) When a decision is made to dis- documentation are accomplished dur- engage a CHAMPUS-eligible individ- ing the next working day. Such ‘‘fol- ual, commanding officers (CO) or offi- low-up’’ counseling may be in person or cers-in-charge (OIC) are responsible for via a witnessed telephone conversation. assuring that counseling and docu- In either instance, the counselor will mentation of counseling are appro- document counseling on a NAVMED priately accomplished. Complete a 6320/30, Disengagement for Civilian NAVMED 6320/30. Disengagement for Medical Care. The disengagement deci- Civilian Medical Care, to document sion making authority must assure the that all appropriate disengagement accomplishment of counseling by per- procedures have been accomplished. sonally initiating this service or by re- (iii) After obtaining the signature of ferring the patient or responsible fam- the patient or responsible family mem- ily member to the HBA for counseling.
283
VerDate 25
As a minimum, counseling will consist and immediately file the original in of: the patient’s Health Record. (A) Explaining that the patient is (4) Active duty members. When an ac- being disengaged from treatment at tive duty member seeks care at a the facility and the reason therefor. USMTF, that USMTF retains some re- Assure that the individual understands sponsibility (e.g., notification, medical the meaning of ‘‘disengagement’’ by ex- cognizance, supplemental care, etc.) for plaining that the MTF is unable to pro- that member even when the member vide for the patient’s present needs and must be transferred to another facility must therefore relinquish medical for care. Therefore, relinquishment of management of the patient to a health total management of an active duty care provider of the individual’s choice. member (disengagement) cannot be ac- (B) Assuring the individual that the complished. disengagement action is taken to pro- (h) Domiciliary/custodial care. The vide for the patient’s immediate medi- type of care designed essentially to as- cal needs. Also assure that the individ- sist an individual in meeting the nor- ual understands that the disengage- mal activities of daily living, i.e., serv- ment is not indicative of whether care ices which constitute personal care is or will be available in the MTF for such as help in walking and getting in other aspects of past, current, or future or out of bed, help in bathing, dressing, medical conditions. feeding, preparation of special diets, (C) Explaining Medicare, MEDICAID, and supervision over medications or other known programs as they re- which can usually be self-administered late to the particular circumstance of and which does not entail or require the patient, including cost-sharing, the continuing attention of trained deductibles, allowable charges, partici- medical or paramedical personnel. The pating and authorized providers, physi- essential characteristics to be consid- cians accepting assignment, claim fil- ered are the level of care and medical ing procedures, etc. Explain that once supervision that the patient requires, disengagement is accomplished, the rather than such factors as diagnosis, Navy, is not responsible for any costs type of condition, or the degree of func- for care received from a health care tional limitation. Such care will not be provider of the patient’s or responsible provided in naval MTFs except when family member’s choice. required for active duty members of (iv) Documentation. Commanding offi- the uniformed services. cers are responsible for ensuring that proper documentation procedures are (i) Emergency care. Treat patients au- started and that providers and coun- thorized only emergency care and selors under their commands are ap- those admitted as civilian emergencies prised of their individual responsibil- only during the period of the emer- ities for counseling and documenting gency. Initiate action to effect appro- each disengagement. Failure to prop- priate disposition of such patients as erly counsel and document counseling soon as the emergency period ends. may result in the naval MTF having to (j) Evaluation after admission. Evalu- absorb the cost of the entire episode of ate each patient as soon as possible care. Document counseling on a after admission and continue reevalua- NAVMED 6320/30. Disengagement for tion until disposition is made. Antici- Civilian Medical Care. Completion of pate each patient’s probable type and all items on the form assures docu- date of disposition. Necessary process- mentation and written acknowledge- ing by the various medical and admin- ment of appropriate disengagement and istrative entities will take place con- counseling. If the patient or respon- currently with treatment of the pa- sible family member refuses to ac- tient. Make the medical disposition de- knowledge receipt of counseling by cision as early as possible for U.S. mili- signing the form, state this fact on the tary patients inasmuch as immediate bottom of the form and have it wit- transfer to a specialized VA center or nessed by an officer. Give the patient to a VA spinal cord injury center may or responsible family member a copy be in their best interest (see
284
VerDate 25
NAVMEDCOMINST 6320.1.2). Make dis- (see § 728.4(p) for handling enlisted con- position decisions for military person- valescent patients). Make maximum nel of NATO nations in conformance use of administrative versus medical with § 728.42(d). personnel in the supervision of such pa- (k) Extent of care. Subject to the re- tients. strictions and priorities in § 728.3, eligi- (n) Health benefits advising—(1) Gen- ble persons will be provided medical eral. A Health Benefits Advising pro- and dental care to the extent author- gram must be started at all shore com- ized, required, and available. When an mands having one or more medical offi- individual is accepted for care, all care cers. While health benefits advisors are and adjuncts thereto, such as non- not required aboard every ship with a standard supplies, as determined by the medical officer, the medical depart- CO to be necessary, will be provided ment representative can usually pro- from resources available to the CO un- vide services to personnel requiring less specifically prohibited elsewhere help. The number of health benefits ad- in this part. When a patient has been visors (HBAs) of a command will be accepted and required care is beyond the capability of the accepting MTF, commensurate with counseling and as- the CO thereof will arrange for the re- sistance requirements. The program quired care by one of the means shown provides health benefits information below. The method of choice will be and counseling to beneficiaries of the based upon professional considerations Uniformed Services Health Benefits and travel economy. Program (USHBP) and to others who (1) Transfer the patient per may or may not qualify for care in § 728.4(bb). USMTFs. Office location of HBAs, their (2) Procure from civilian sources the names, and telephone numbers will be necessary material or professional per- widely publicized locally. If additional sonal services required for the patient’s help is required, contact MEDCOM–333 proper care and treatment. on AUTOVON 294–1127 or commercial (3) Care authorized in § 728.4(k)(2) will (202) 653–1127. In addition to the duties normally be accomplished in the naval described in § 728.4(n)(2), HBAs will: MTF. However, when such action is not (i) Maintain a depository of up-to- feasible, supplementation may be ob- date officially supplied health benefits tained outside the facility. Patients information for availability to all may be sent to other Federal or civil- beneficiaries. ian facilities for specific treatment or (ii) Provide information and guidance services under § 728.4(k)(3) provided they to beneficiaries and generally support remain under medical management of the medical and dental staff by provid- the CO of the sending facility during ing help to eligible beneficiaries seek- the entire period of care. ing or obtaining services from (l) Family planning services. Provide USMTFs, civilian facilities, VA facili- family planning services following the ties, Medicare, MEDICAID, and other provisions of SECNAVINST 6300.2A. health programs. (m) Grouping of patients. Group hos- (iii) Assure that when a referral or pitalized patients according to their re- quirements for housing, medical, or disengagement is required, patients or dental care. Provide gender identified responsible family members are: quarters, facilities, and professional su- (A) Fully informed that such action pervision on that basis when appro- is taken to provide for their immediate priate. Individuals who must be re- medical or dental requirements and tained under limited medical super- that the disengagement or referral has vision (medical hold) solely for admin- no bearing on whether care may be istrative reasons or for medical condi- available in the naval MTF for other tions which can be treated on a clinic aspects of current or other future med- basis will be provided quarters and ical conditions. messing facilities, where practicable, (B) Provided the services and coun- separately from those hospitalized. seling outlined in § 728.4(n)(2) or Provide medical care for such patients § 728.3(g)(3)(ii), as appropriate, prior to on a periodic clinic appointment basis their departure from the facility when
285
VerDate 25
such beneficiaries are referred or dis- (v) Arrange for counseling from ap- engaged because care required is be- propriate sources when the patient is yond the naval MTF’s capability. In an eligible for VA, Medicare, or MEDIC- emergency, or when the patient or AID benefits. sponsor cannot be seen by the HBA (vi) Serve as liaison between civilian prior to leaving, provide these benefits providers and naval MTF on adminis- as soon thereafter as possible. trative matters related to the referral (2) Counseling and assisting and disengagement process. CHAMPUS-eligible individuals. HBAs, as (vii) Serve as liaison between naval a minimum, will: MTF and cooperative care coordinators (i) Explain alternatives available to on matters relating to care provided or the patient. recommended by naval MTF providers, (ii) If appropriate, explain CHAMPUS as appropriate. as it relates to the particular cir- (viii) Explain why the patient is cumstance, including the cost-sharing being disengaged and, per § 728.4(g)(2), provisions applicable to the patient, al- provide a DD 1251, Nonavailability lowable charges, provider participa- Statement, or DD 2161, Referral For Ci- tion, and claim filing procedures. Fully vilian Medical Care, as appropriate. inform the patient or responsible fam- (o) Immunizations. Administer immu- ily member that when a patient is dis- nizations per BUMED INST 6230.1H. (p) Medical holding companies. Medical engaged for care under CHAMPUS or holding companies (MHC) have been es- when cooperative care is to be consid- tablished at certain activities to facili- ered for payment under the provisions tate handling of enlisted convalescent of § 728.4(z) (5) and (6), the naval MTF is patients whose medical conditions are not responsible for monetary amounts such that, although they cannot be re- above the CHAMPUS-determined al- turned to full duty, they can perform lowable charge or for charges light duty ashore commensurate with CHAMPUS does not allow. their condition while completing their (iii) Explain why the naval MTF is medical care on an outpatient basis. paying for the supplemental care, if ap- Where feasible, process such patients propriate (see § 728.4(z) (3) and (4)), and for transfer. how the bill will be handled. Then: (q) Notifications. The interests of the (A) Complete a DD 2161, Referral For Navy, Marine Corps, and DOD have Civilian Medical Care, marking the ap- been adversely affected by past proce- propriate source of payment with the dures which emphasized making notifi- concurrence of the naval MTF com- cations only when an active duty mem- manding officer or CO’s designee. ber’s condition was classed as either se- (B) If referred for a specified proce- riously ill or injured or classed as very dure with a consultation report to be seriously ill or injured. However, even returned to the naval MTF retaining temporary disabilities which preclude medical management, annotate the DD communication with the next of kin 2161 in the consultation report section have generated understandable concern to state this requirement. Advise pa- and criticism, especially when emer- tient or responsible family member to gency hospitalization has resulted. Ac- arrange for a completed copy of the DD cordingly, naval MTFs will effect pro- 2161 to be returned to the naval MTF cedures to make notifications required for payment, if appropriate, and inclu- in § 728.4(q) (2), (3), and (4) upon admis- sion in patient’s medical record. sion or diagnosis of individuals speci- (iv) Brief patient or responsible fam- fied. The provisions of § 728.4(q) supple- ily member on the use of the DD 2161 in ment articles 1810520 and 4210100 of the USMTF payment procedures and Naval Military Personnel Manual and CHAMPUS claims processing, as appro- chapter 1 of Marine Corps Order priate. Provide sufficient copies of DD P3040.4B, Marine Corps Casualty Proce- 2161 and explain that CHAMPUS con- dures Manual; they do not supersede tractors will return claims submitted them. without a required DD 2161. Obtain sig- (1) Privacy Act. The right to privacy nature of patient or responsible family of individuals for whom hospitalization member on the form. reports and other notifications are
286
VerDate 25
made will be safeguarded as required (A) Direct admissions. Upon direct ad- by the Privacy Act, implemented in mission of an active duty member, the Department of the Navy by with or without orders regardless of ex- SECNAVINST 5211.5C, U.S. Navy Regu- pected length of stay. The patient ad- lations, the Manual of the Judge Advo- ministration department (administra- cate General, the Marine Corps Cas- tive watch officer after hours) is re- ualty Procedures Manual, and the Man- sponsible for preparation, per ual of the Medical Department. § 728.4(q)(4), and release of these mes- (2) Active duty flag or general officers sages. If the patient is attached to a and retired Marine Corps general officers. local command (CO’s determination), Upon admission of subject officers, initial notification may be made tele- make telephonic contact with phonically. Record the name, grade or MEDCOM–33 on AUTOVON 294–1179 or rate, and position of the person receiv- commercial (202) 653–1179 (after duty ing the call at the member’s command hours, contact the command duty offi- on the back of the NAVMED 6300/5, In- cer on AUTOVON 294–1327 or commer- patient Admission/Disposition Record cial (202) 653–1327) to provide the fol- and include the name and telephone lowing information: number of the MTF’s point of contact (i) Initial. Include in the initial re- as given to the patient’s command. port: (B) Change in medical condition. Upon (A) Officer’s name, grade, social secu- becoming aware of any medical condi- rity number, and designator. tion, including pregnancy, which will (B) Duty assignment in ship or sta- now or in the foreseeable future result tion, or other status. in the loss of a member’s full duty (C) Date of admission. services in excess of 72 hours. Transmit (D) Present condition, stating if seri- this information in a message, pre- ous or very serious. pared per § 728.4(q)(4), marked ‘‘Com- (E) Diagnosis, prognosis, and esti- manding Officer’s Eyes Only.’’ mated period of hospitalization. To (ii) Notification of next of kin (NOK)— prevent possible invasion of privacy, (A) Admitted members. As part of the ad- report the diagnosis only in Inter- mission procedure, encourage all pa- national Classification of Diseases—9th tients to communicate expeditiously Edition (ICD–9–CM) code designator. and regularly with their NOK. When an (ii) Progress reports. Call frequency active duty member’s incapacity and content will be at the discretion of makes timely personal communication the commanding officer. However, impractical, i.e., fractures, burns, eye promptly report changes in condition pathology, psychiatric or emotional or status. disorders, etc., MTF personnel will ini- (iii) Termination report. Make a termi- tiate the notification process. Do not nation of hospitalization report to pro- start the process if the patient specifi- vide appropriate details for informa- cally declines such notification or it is tional purposes. clear that the NOK already has knowl- (iv) Additional commands to apprise. edge of the admission (commands The geographic naval medical region should develop a local form for such pa- serving the hospital and, if different, tients to sign attesting their desire or the one serving the officer’s command refusal to have their NOK notified). will also be apprised of such admis- Once notification has been made, the sions. facility will make progress reports, at (3) Active duty members—(i) Notifica- least weekly, until the patient is again tion of member’s command. The com- able to communicate with the NOK. manding officer of naval medical treat- (1) Navy personnel. Upon admission of ment facilities has responsibility for Navy personnel, effect the following notifying each member’s commanding notification procedures. officer under the conditions listed (i) In the contiguous 48 states. Patient below. Make COMNAVMILPERS COM administration department personnel or CMC, as appropriate, information will notify the NOK in person, by tele- addressees on their respective person- phone, telegraph, or by other expedi- nel: tious means. Included are notifications
287
VerDate 25
of the NOK upon arrival of all Navy pa- Marine Corps member communicate tients received in the medical air-evac- with the NOK if able. If unable, the uation system. medical officer should communicate (ii) Outside the contiguous 48 states. If with the NOK after personal notifica- the next of kin has accompanied the tion has been effected. patient on the tour of duty and is in (B) Terminally ill patients. As soon as the immediate area, hospital personnel a diagnosis is made and confirmed (on will notify the next of kin in person, by inpatients or outpatients) that a Navy telephone, telegraph, or by other expe- member is terminally ill, ditious means. If the next of kin is lo- MILPERSMAN 4210100 requires notifi- cated in the 48 contiguous United cation of the primary and secondary States, use telegraphic means to notify next of kin. Accomplish notification COMNAVMILPERSCOM who will pro- the same as for Navy members admit- vide notification to the NOK. ted as seriously or very seriously ill or (2) Marine Corps personnel. When Ma- injured, i.e., by priority message to the rine Corps personnel are admitted, ef- Commander, Naval Military Personnel fect the following notification proce- Command and to the Casualty Assist- dures. ance Calls/Funeral Honors Support (i) In the contiguous 48 states. The Program Coordinator, as appropriate, commander of the unit or activity to who has cognizance over the geographi- which the casualty member is assigned cal area in which the primary and sec- is responsible for initiating notifica- ondary NOK resides (see OPNAVINST tion procedures to the NOK of seriously 1770.1). Submit followup reports when or very seriously ill or injured Marine appropriate. See MILPERSMAN 4210100 Corps personnel. Patient administra- for further amplification and for infor- tion department personnel will assure mation addressees. that liaison is established with the ap- (1) In the contiguous 48 states. Notifi- propriate command or activity when cation responsibility is assigned to the such personnel are admitted. Patient USMTF making the diagnosis and to administration personnel will notify the member’s duty station if diagnosed the Marine’s command by telephone in a civilian facility. and request that cognizance be as- (2) Outside the contiguous 48 states. No- sumed for in-person initial notification tification responsibility is assigned to of the NOK of Marine Corps patients the naval medical facility making the admitted with an incapacity that diagnosis. When diagnosed in nonnaval makes personal and timely commu- facilities or aboard deployed naval ves- nication impractical and for those ar- sels, notification responsibility belongs riving via the medical air-evacuation to the Commander, Naval Military Per- system. If a member’s command is un- sonnel Command. known or cannot be contacted, inform (C) Other uniformed services patients. CMC (MHP–10) on AUTOVON 224–1787 Establish liaison with other uniformed or commercial (202) 694–1787. services to assure proper notification (ii) Outside the contiguous 48 states. upon admission or diagnosis of active Make casualty notification for Marine duty members of other services. Corps personnel hospitalized in naval (D) Nonactive duty patients. At the MTFs outside the contiguous 48 States discretion of individual commanding to the individual’s command. If the officers, the provisions of § 728.4(q)(3)(ii) command is unknown or not located in on providing notification to the NOK close proximity to the MTF, notify may be extended to admissions or diag- CMC (MHP–10). When initial notifica- nosis of nonactive duty patients; e.g., tion to the individual’s command is admission of dependents of members on made via message, make CMC (MHP– duty overseas. 10) an information addressee. (4) Messages—(i) Content. Phrase con- (iii) In and outside the United States. In tents of messages (and telephonic noti- life-threatening situations, the Com- fications) in lay terms and provide suf- mandant of the Marine Corps desires ficient details concerning the patient’s and encourages medical officers to condition, prognosis, and diagnosis. communicate with the next of kin. In Messages will also contain the name other circumstances, request that the and telephone number of the facility’s
288
VerDate 25
point of contact. When appropriate for well as those of the Government. A addressal, psychiatric and other sen- long-term patient roster will be main- sitive diagnoses will be related with tained and updated at least once discretion. When indicated, also in- monthly to enable commanding offi- clude specific comment as to whether cers and other appropriate staff mem- the presence of the next of kin is medi- bers to monitor the progress of all pa- cally warranted. NOTE: In making noti- tients with 30 or more continuous days fication to the NOK of patients diag- of hospitalization. Include on the ros- nosed as having Acquired Immune Defi- ter basic patient identification data ciency Syndrome (AIDS) or Human Im- (name, grade or rate, register number, munodeficiency Virus (HIV), use one of ward or absent status, clinic service, the symptoms of the disease as the di- and whether assigned to a medical agnosis (e.g., pneumonia) rather than holding company), projected disposi- ‘‘HIV’’, ‘‘AIDS’’, or the diagnostic code tion (date, type, and profile), diagnosis, for AIDS. and cumulative hospital days (present (ii) Information addressees. Make the facility and total). commander of the geographic naval (u) Remediable physical defects of ac- medical region servicing the member’s tive duty members—(1) General. When a command and the one servicing the medical evaluation reveals that a Navy hospital, if different, information ad- or Marine Corps patient on active duty dressees on all messages. For Marine has developed a remediable defect Corps personnel, also include CMC while on active duty, the patient will (MHP–10) and the appropriate Marine be offered the opportunity of operative Corps district headquarters as informa- repair or other appropriate remediable tion addressees, COMNAVMEDCOM treatment, if medically indicated. WASHINGTON DC requires informa- (2) Refusal of treatment. Per MANMED tion copies of messages only when a pa- art. 18–15, when a member refuses to tient has been placed on the seriously submit to recommended therapeutic ill or injured or very seriously ill or in- measures for a remediable defect or jured list or diagnosed as terminally condition which has interfered with the ill. member’s performance of duty and fol- (r) Outpatient care. Whenever pos- lowing prescribed therapy, the member sible, perform diagnostic procedures is expected to be fit for full duty, the and provide preoperative and post oper- following procedures will apply: ative care, surgical care, convales- (i) Transfer the member to a naval cence, and followup observations and MTF for further evaluation and appear- treatment on an outpatient basis. ance before a medical board. After (s) Performance of duties while in an counseling per MANMED art. 18–15, inpatient status. U.S. military patients any member of the naval service who may be assigned duties in and around refuses to submit to recommended naval MTFs when such duties will be, medical, surgical, dental, or diagnostic in the judgement of the attending phy- measures, other than routine treat- sician, of a therapeutic value. Physical ment for minor or temporary disabil- condition, past training, and other ac- ities, will be asked to sign a completed quired skills must all be considered be- NAVMED 6100/4, Medical Board Certifi- fore assigning any patient a given task. cate Relative to Counseling on Refusal Do not assign patients duties which are of Surgery and/or Treatment, attesting not within their capabilities or which to the counseling. require more than a very brief period of (ii) The board will study all pertinent orientation. information, inquire into the merits of (t) Prolonged definitive medical care. the individual’s refusal to submit to Prolonged definitive medical care in treatment, and report the facts with naval MTFs will not be provided for appropriate recommendations. U.S. military patients who are unlikely (iii) As a general rule, refusal of to return to duty. The time at which a minor surgery should be considered un- patient should be processed for disabil- reasonable in the absence of substan- ity separation must be determined on tial contraindications. Refusal of an individual basis, taking into consid- major surgical operations may be rea- eration the interests of the patient as sonable or unreasonable, according to
289
VerDate 25
the circumstances, The age of the pa- apy regimen or diagnostic procedure tient, previous unsuccessful operations, may be interpreted as willful neglect. existing physical or mental contra- (B) Benefits from the Veterans Ad- indications, and any special risks ministration will be dependent upon a should all be taken into consideration. finding that the disability was incurred (iv) Where surgical procedures are in- in line of duty and is not due to the volved, the board’s report will contain member’s willful misconduct. answers to the following questions: (ix) The Social Security Act contains (A) Is surgical treatment required to special provisions relating to benefits relieve the incapacity and restore the for ‘‘disabled’’ persons and certain pro- individual to a duty status, and may it visions relating to persons disabled ‘‘in be expected to do so? line of duty’’ during service in the (B) Is the proposed surgery an estab- Armed Forces. In many instances per- lished procedure that qualified and ex- sons deemed to have ‘‘remediable’’ dis- perienced surgeons ordinarily would orders have been held not ‘‘disabled’’ recommend and undertake? within the meaning of that term as (C) Considering the risks ordinarily used in the statute, and Federal courts associated with surgical treatment, the have upheld that interpretation. One patient’s age and general physical con- who is deemed unreasonably to have dition, and the member’s reason for re- refused to undergo available surgical fusing treatment, is the refusal reason- procedures may be deemed both ‘‘not able or unreasonable? (Fear of surgery disabled’’ and to have incurred the con- or religious scruples may be consid- dition ‘‘not in the line of duty.’’ ered, along with all the other evidence, (x) Forward the board’s report di- for whatever weight may appear appro- rectly to the Central Physical Evalua- priate.) tion Board with a copy to MEDCOM–25 (v) If a member needing surgery is except in those instances when the con- mentally competent, do not perform vening authority desires referral of the surgery over the member’s protesta- medical board report for Departmental tion. review. (vi) In medical, dental, or diagnostic (xi) Per MANMED art. 18–15, a mem- situations, the board should show the ber who refuses medical, dental, or sur- need and risk of the recommended pro- gical treatment for a condition that ex- cedure(s). isted prior to entry into the service (vii) If a medical board decides that a (EPTE defect), not aggravated by a pe- diagnostic, medical, dental, or surgical riod of active service but which inter- procedure is indicated, these findings feres with the performance of duties, must be made known to the patient. should be processed for reason of phys- The board’s report will show that the ical disability, convenience to the Gov- patient was afforded an opportunity to ernment, or enlisted in error rather submit a written statement explaining than under the refusal of treatment the grounds for refusal. Forward any provisions. Procedures are delineated statement with the board’s report. Ad- in BUMEDINST 1910.2G and vise the patient that even if the dis- SECNAVINST 1910.4A. ability originally arose in line of duty, (3) Other uniformed services patients. its continuance may be attributable to When a patient of another service is the member’s unreasonable refusal to found to have a remediable physical de- cooperate in its correction; and that fect developed in the military service, the continuance of the disability refer the matter to the nearest head- might, therefore, result in the mem- quarters of the service concerned. ber’s separation without benefits. (v) Responsibilities of the commanding (viii) Also advise the patient that: officer. In connection with the provi- (A) Title 10 U.S.C. 1207 precludes dis- sions of this part, commanding officers position under chapter 61 of 10 U.S.C. if of naval MTFs will: such a member’s disability is due to in- (1) Determine which persons within tentional misconduct, willful neglect, the various categories authorized care or if it was incurred during a period of in a facility will receive treatment in, unauthorized absence. A member’s re- be admitted to, and be discharged from fusal to complete a recommended ther- that specific facility.
290
VerDate 25
(2) Supervise care and treatment, in- sonnel may be authorized to remain in cluding the employment of recognized quarters, not to exceed 72 hours. professional procedures. (x) Sicklist—authorized absence from. (3) Provide each patient with the best Commanding officers of naval MTFs possible care in keeping with accepted may authorize absences of up to 72 professional standards and the assigned hours for dependents and retired per- primary mission of the facility. sonnel without formal discharge from (4) Provide for counseling patients the sicklist. When absences are author- and naval MTF providers when care re- ized in excess of 24 hours, subsistence quired is beyond the naval MTF’s capa- charges or dependent’s rate, as applica- bility. This includes: ble, for that period will not be col- (i) Establishing training programs to lected and the number of reportable oc- acquaint naval MTF providers and cupied bed days will be appropriately HBAs with the uniformed services’ re- reduced. Prior to authorizing such ab- ferral for supplemental/cooperative sences, the attending physician will ad- care or services policy outlined in vise patients of their physical limita- § 728.4(z). tions and of any necessary safety pre- (ii) Implementing control measures cautions, and will annotate the clinical to ensure that: record that patients have been so ad- (A) Providers requesting care under vised. For treatment under the Medical the provisions § 728.4(z) are qualified to Care Recovery Act, make reporting maintain physician case management consistent with § 728.4(aa). when required. (y) Subsisting out. A category in (B) Care requested under the supple- which officer and enlisted patients on mental/cooperative care criteria is the sicklist of a naval MTF may be medically necessary, legitimate, and placed when their daily presence is not otherwise permissible under the terms required for treatment nor examina- of that part of the USHBP under which tion, but who are not yet ready for re- it will be considered for payment. turn to duty. As a general rule, pa- (C) Providers explain to patients the tients placed in this category should reason for a referral and the type of re- reside in the area of the facility and ferral being made. should be examined by the attending (D) Attending physicians properly physician at least weekly. Enlisted per- refer beneficiaries to the HBA for coun- sonnel in a subsisting out status should seling and services per § 728.4(n). be granted commuted rations. (E) Uniform criteria are applied in determining cooperative care situa- (1) Granting of subsisting out privi- tions without consideration of rate, leges is one of many disposition alter- grade, or uniformed service affiliation. natives; however, recommend that (F) All DD 2161’s are properly com- other avenues (medical holding com- pleted and approved by the command- pany, convalescent leave, limited duty, ing officer or designee. etc.) be considered before granting this (G) A copy of the completed DD 2161 privilege. is returned to the naval MTF for inclu- (2) Naval MTF patients in a subsist- sion in the medical record of the pa- ing out status should not be confused tient. with those enlisted personnel in a reha- (w) Sick call. A regularly scheduled bilitation program who are granted lib- assembly of sick and injured military erty and are drawing commuted ra- personnel established to provide rou- tions, but are required to be present at tine medical care. Subsequent to exam- the treating facility during normal ination, personnel medically unfit for working hours. These personnel are not duty will be admitted to an MTF or subsisting out and must have a bed as- placed sick in quarters; personnel not signed at the naval MTF. admitted or placed sick in quarters (3) Naval MTF patients who are re- will be given such treatment as is quired to report for examinations or deemed necessary. When excused from treatment more often than every 48 duty for medical reasons which do not hours should not be placed in a subsist- require hospitalization, military per- ing out status.
291
VerDate 25
(z) Supplemental/cooperative care or erative care or services. When supple- services—(1) General. When such serv- mental care is required under the pro- ices as defined in § 728.2(cc) are ren- visions of § 728.4(z) (3) and (4), the provi- dered to other than CHAMPUS-eligible sions of § 728.4(z)(3)(iii) apply. When co- individuals, the cost thereof is charge- operative care or services are required able to operation and maintenance under the provisions of § 728.4(z) (5) and funds available for operation of the fa- (6), the provisions of § 728.4(z)(5)(iv) cility requesting care or services. Co- apply. operative care applies to CHAMPUS-el- (vi) Clarification of unusual cir- igible patients receiving inpatient or cumstances. Commanding officers of outpatient care in a USMTF who re- naval MTFs will submit requests for quire care or services beyond the capa- clarification of unusual circumstances bility of that USMTF. The following to OCHAMPUS or CHAMPUS contrac- general principles apply to such tors via the Commander, Naval Medi- CHAMPUS-eligible patients: cal Command (MEDCOM–33) for consid- (i) Cooperation of uniformed services eration. physicians. USMTF physicians are re- (2) Care beyond a naval MTF’s capabil- quired to cooperate in providing ity. When, either during initial evalua- CHAMPUS contractors and tion or during the course of treatment OCHAMPUS additional medical infor- of CHAMPUS-eligible beneficiaries, re- mation. SECNAVINST 5211.5C delin- quired services are beyond the capabil- eates policies, conditions, and proce- ity of the naval MTF, the commanding dures that govern safeguarding, using, officer will arrange for the services accessing, and disseminating personal from an alternate source in the follow- information kept in a system of ing order, subject to restrictions speci- records. Providing information to fied. The provisions of § 728.4(z)(2)(i) CHAMPUS contractors and through (iii) must be followed before OCHAMPUS will be governed thereby. either supplemental care, authorized in (ii) Physician case management. Where § 728.4(z)(4), is considered for payment required by NAVMEDCOMINST 6320.18 from Navy Operations and Mainte- (CHAMPUS Regulation; implementa- nance funds, or cooperative care, au- tion of), uniformed services physicians thorized in § 728.4(z)(6), is to be consid- are required to provide case manage- ered for payment under the terms of ment (oversight) as would an attending CHAMPUS. or supervising civilian physician. (i) Obtain from another USMTF or (iii) CHAMPUS-authorized providers. other Federal MTF the authorized care CHAMPUS contractors are responsible necessary for continued treatment of for determining whether a civilian pro- the patient within the naval MTF, vider is CHAMPUS-authorized and for when such action is medically feasible providing such information, upon re- and economically advantageous to the quest, to USMTFs. Government. (iv) Phychiatric or psychotherapeutic (ii) When the patient is a retired services. If psychiatric care is being ren- member or dependent, transfer per dered by a psychiatric or clinical social § 728.4(bb)(3) (i), (ii), (iii), or (iv), in that worker, a psychiatric nurse, or a mar- order. When the patient is a dependent riage and family counselor, and the of a member of a NATO nation, trans- uniformed services facility has made a fer per § 728.4(bb)(4) (i), (ii), or (iii), in determination that it does not have that order. the professional staff competent to pro- (iii) With the patient’s permission, vide required physician case manage- the naval MTF may contact State pro- ment, the patient may be (partially) grams, local health agencies, or health disengaged for the psychiatric or psy- foundations to determine if benefits chotherapeutic service, yet have the are available. remainder of required medical care (iv) Obtain such supplemental care or provided by the naval MTF. services as delineated in § 728.4(z)(4) (v) Forms and documentation. A DD from a civilian source using local oper- 2161, Referral For Civilian Medical ation and maintenance funds, or Care, will be provided to each patient (v) Obtain such cooperative care or who is to receive supplemental or coop- services as delineated in § 728.4(z)(6)
292
VerDate 25
from a civilian source under the terms (iii) Prescription drugs and medical of CHAMPUS. supplies. (3) Operation and maintenance funds. (iv) Civilian ambulance service or- When local operation and maintenance dered by USMTF personnel. funds are to be used to obtain supple- (5) CHAMPUS funds. When payment mental care or services, the following is to be considered under the terms of guidelines are applicable: CHAMPUS for cooperative care, even (i) Care or services must be legiti- though the beneficiary remains under mate, medically necessary, and ordered naval MTF control, the following by a qualified USMTF provider. guidelines are applicable: (ii) The naval MTF must make the (i) Process charges for care under the necessary arrangements for obtaining terms of CHAMPUS. required care or services from a spe- (A) If the charge for a covered service cific source of care. or supply is above the CHAMPUS-de- (iii) Upon approval of the naval MTF termined reasonable charge, the direct commanding officer or designee, pro- care system will not assume any liabil- vide the patient or sponsor with a prop- ity on behalf of the patient where a ci- erly completed DD 2161, Referral For vilian provider is concerned, although Civilian Medical Care. The DD 2161 will a USMTF physician recommended or be marked by the health benefits advi- prescribed the service or supply. sor or other designated individual to (B) Payment consideration for all show the naval MTF as the source of care or services meeting cooperative payment. Forward a copy to the MTF’s care criteria will be under the terms of contracting or supply officer who is the CHAMPUS and payment for such care point of contact for coordinating obli- or services will not be made from naval gations with the comptroller and thus MTF funds. Conversely, any care or is responsible for assuring proper proc- services meeting naval MTF supple- essing for payment. mental care or services payment cri- (iv) Authorize care on an inpatient or teria will not be considered under the outpatient basis for the minimum pe- terms of CHAMPUS. riod necessary for the civilian provider (ii) Care must be legitimate and oth- to perform the specific test, procedure, erwise permissible under the terms of treatment, or consultation requested. CHAMPUS and must be ordered by a Patients receiving inpatient services in qualified USMTF provider. civilian medical facilities will not be (iii) Provide assistance to bene- counted as an occupied bed in the naval ficiaries referred or disengaged under MTF, but will be continued on the CHAMPUS. Although USMTF person- naval MTF’s inpatient census. Con- nel are not authorized to refer bene- tinue to charge pay patients the ficiaries to a specific civilian provider USMTF inpatient rate appropriate for for care under CHAMPUS, health bene- their patient category. fits advisors are authorized to contact (v) Naval MTF physicians will main- the cooperative care coordinator of the tain professional contact with civilian appropriate CHAMPUS contractor for providers. aid in determining authorized provid- (4) Care and services authorized. Use ers with the capability of rendering re- local operation and maintenance funds quired services. Such information may to defray the cost of the following be given to beneficiaries. Also encour- when CHAMPUS-eligible patients are age beneficiaries to obtain required referred to civilian sources for the fol- services only from providers willing to lowing types of care or services; participate in CHAMPUS. Subject to (i) All specialty consultations for the the availability of space, facilities, and purpose of establishing or confirming capabilities of the staff, USMTFs may diagnoses or recommending a course of provide consultative and such other an- treatment. cillary aid as required by the civilian (ii) All diagnostic tests, diagnostic provider selected by the beneficiary. examinations, and diagnostic proce- (iv) Provide a properly completed DD dures (including genetic tests and CAT 2161, Referral For Civilian Medical scans), ordered by qualified USMTF Care, to patients who are referred (ver- providers. sus disengaged) to civilian sources
293
VerDate 25
under the terms of CHAMPUS for coop- speech therapy, radiation therapy, and erative care. (A Nonavailability State- private duty (special) nursing. ment (DD 1251) may also be required. (ii) Preauthorized (by OCHAMPUS) Provide this form when required under adjunctive dental care, including or- § 728.33.) The DD 2161 will be marked by thodontia related to surgical correc- the health benefits advisor, or other tion of cleft palate. designated individual, to show (iii) Durable medical equipment. CHAMPUS as the source of payment (CHAMPUS payment will be considered consideration. All such DD 2161’s must only if the equipment is not available be approved by the commanding officer on a loan basis from the naval MTF.) or designee. Give the patient sufficient (iv) Prosthetic devices (limited bene- copies to ensure a copy of the DD 2161 fit), orthopedic braces and appliances. accompanies each CHAMPUS claim. (v) Optical devices (limited benefit). Advise patients that CHAMPUS con- (vi) Civilian ambulance service to a tractors will return claims received USMTF when service is ordered by without the DD 2161. Also advise pa- other than direct care personnel. tients to arrange for return of a com- (vii) All CHAMPUS Program for the pleted copy of the DD 2161 to the naval Handicapped care. MTF for inclusion in their medical (viii) Psychotherapeutic or psy- record. chiatric care. (v) Such patients receiving inpatient (ix) Except for those types of care or or outpatient care or services will pay services delineated in § 728.4(z)(4), all the patient’s share of the costs as spec- other CHAMPUS authorized medical ified under the terms of CHAMPUS for services not available in the naval their beneficiary category. Patients re- MTF (for example, neonatal intensive ceiving inpatient services will not be care). continued on the naval MTF’s census (aa) Third party liability case. Per and will not be charged the USMTF in- chapter 24, section 2403, JAG Manual, patient rate. use the following guidelines to com- (vi) Certain ancillary services au- plete and submit a NAVJAG 5890/12, thorized under CHAMPUS require phy- Hospital and Medical Care, 3rd Party sician case management during the Liability Case, when a third party may course of treatment. USMTF physi- be liable for the injury or disease being cians will manage the provision of an- treated: cillary services by civilian providers (1) Preparation. All naval MTFs will when such services are obtained under use the front of NAVJAG 5890/12 to re- the terms of CHAMPUS. Examples in- port the value of medical care fur- clude physical therapy, private duty nished to any patient when (i) a third (special) nursing, rental or lease/pur- party may be legally liable for causing chase of durable medical equipment, the injury or disease, or (ii) when a and services under the CHAMPUS Pro- Government claim is possible under gram for the Handicapped. USMTF pro- workmen’s compensation, no-fault in- viders exercising physician case man- surance (see responsibilities for appris- agement responsibility for ancillary ing the insurance carrier in services under CHAMPUS are subject § 728.4(aa)(5)), uninsured motorist insur- to the same benefit limitations and ance, or under medical payments insur- certification of need requirements ap- ance (e.g., in all automobile accident plicable to civilian providers under the cases). Block 4 of this form requires an terms of CHAMPUS for the same types appended statement of the patient or of care. USMTF physicians exercising an accident report, if available. Prior physician case management respon- to requesting such a statement from a sibility will maintain professional con- patient, the person preparing the front tact with civilian providers of care. side of NAVJAG 5890/12 will show the (6) Care and services authorized. Refer patient the Privacy Act statement CHAMPUS-eligible patients to civilian printed at the bottom of the form and sources for the following under the have the patient sign his or her name terms of CHAMPUS: beneath the statement. (i) Authorized nondiagnostic medical (2) Submission—(i) Naval patients. For services such as physical therapy, naval patients, submit the completed
294
VerDate 25
front side of the NAVJAG 5890/12 to the (F) Department of Health and Human appropriate action JAG designee listed Services (DHHS). Regional attorney’s in section 2401 of the JAG Manual at office in the area were the incident oc- the following times: curred. (A) Initial. Make an initial submis- (3) Supplementary documents. An SF sion as soon as practicable after a pa- 502 should accompany the final submis- tient is admitted for any period of in- sion in all cases involving inpatient patient care, or if it appears that more care. Additionally, when Government than 7 outpatient treatments will be care exceeds $1,000, inpatient facilities furnished. This submission should not should complete and submit the back be delayed pending the accumulation side of NAVJAG 5890/12 to the action of all potential charges from the treat- JAG designee. On this side of the form, ing facility. This submission need not the determination of ‘‘patient status’’ be based upon an extensive investiga- may be used on local hospital usage. tion of the cause of the injury or dis- (4) Health record entries. Retain copies ease, but it should include all known of all NAVJAG 5890/12’s in the Health facts. Statements by the patient, po- Record of the patient. Immediately no- lice reports, and similar information (if tify action JAG designees when a pa- available), should be appended to the tient receives additional treatment form. subsequent to the issuance of a final (B) Interim. Make an interim submis- NAVJAG 5890/12 if the subsequent sion every 4 months after the initial treatment is related to the condition submission until the patient is trans- which gave rise to the claim. ferred or released from the facility, or (5) No-fault insurance. When no-fault changed from an inpatient status to an insurance is or may be involved, the outpatient status. naval legal service office at which the (C) Final. Make a final submission JAG designee is located is responsible upon completion of treatment or upon for apprising the insurance carrier that transfer of the patient to another facil- the Federal payment for the benefits of ity. The facility to which the patient is this part is secondary to any no-fault transferred should be noted on the insurance coverage available to the in- form. Report control symbol NAVJAG jured individual. 5890–1 is assigned to this report. (6) Additional guidance. Chapter 24 of (ii) Nonnaval patients. When care is the JAG Manual and BUMEDINST provided to personnel of another Fed- 5890.1A contain supplemental informa- eral agency or department, that agency tion. or department generally will assert (bb) Transfer of patients—(1) General. any claim in behalf of the United Treat all patients at the lowest echelon States. In such instances, submit the equipped and staffed to provide nec- NAVJAG 5890/12’s (initial, interim, and essary care; however, when transfer to final) directly to the appropriate of the another MTF is considered necessary, following: use Government transportation when (A) U.S. Army. Commanding general available. Accomplish medical regulat- of the Army or comparable area com- ing per the provisions of OPNAVINST mander in which the incident occurred. 4630.25B and BUMEDINST 6320.1D. (B) U.S. Air Force. Staff judge advo- (2) U.S. military patients. Do not re- cate of the Air Force installation near- tain U.S. military patients in acute est the location where the initial medi- care MTFs longer than the minimum cal care was provided. time necessary to attain the mental or (C) U.S. Coast Guard. Commandant physical state required for return to (G–K–2). U.S. Coast Guard, Washington, duty or separation from the service. DC 20593–0001. When required care is not available at (D) Department of Labor. The appro- the facility providing area inpatient priate Office of Workers’ Compensation care, transfer patients to the most Programs (OWCP). readily accessible USMTF or des- (E) Veterans Administration. Director ignated USTF possessing the required of the Veterans Administration hos- capability. Transportation of the pa- pital responsible for medical care of tient and a medical attendant or at- the patient being provided treatment. tendants, if required, is authorized at
295
VerDate 25
Government expense. Since the VA is availability Statement (DD 1251) per staffed and equipped to provide care in the provisions of § 728.33, for care under the most expeditious manner, follow CHAMPUS. This step should only be the administrative procedures outlined taken after due consideration is made in NAVMEDCOMINST 6320.12 when: of the supplemental/cooperative care (i) A patient has received the maxi- policy addressed in § 728.4(z). mum benefit of hospitalization in a (4) Dependents of members of NATO na- naval MTF but requires a protracted tions. When a dependent, as defined in period of nursing home type care. The § 728.41, of a member of a NATO nation VA can provide this type care or ar- requires care beyond the capabilities of range for it from a civilian source for a facility and a transfer is necessary, individuals so entitled. the commanding officer of that facility (ii) Determined that there is or may be spinal cord injury necessitating im- may: mediate medical and psychological at- (i) Arrange for transfer to another tention. USMTF or designated USTF with re- (iii) A patient has sustained an ap- quired capability if either is located in parently severe head injury or has been an overlapping inpatient catchment blinded necessitating immediate inter- area of the transferring facility. vention beyond the capabilities of (ii) If the patient or sponsor agrees, naval MTFs. arrange for transfer to the nearest (iv) A determination has been made USMTF or designated USTF with re- by the Secretary concerned that a quired capability, regardless of its lo- member on active duty has an alcohol cation. or drug dependency or drug abuse dis- (iii) Effect disposition per § 728.42(d). ability. (5) Others—(i) Medical care. Section 34 (3) Retired members and dependents. of title 24, United States Code, provides When a retired member of a dependent that hospitalization and outpatient requires care beyond the capabilities of services may be provided outside the a facility and a transfer is necessary, continental limits of the United States the commanding officer of that facility and in Alaska to officers and employ- may: ees of any department or agency of the (i) Arrange for transfer to another USMTF or designated USTF located in Federal Government, to employees of a an overlapping inpatient catchment contractor with the United States or area of the transferring facility if ei- the contractor’s subcontractor, to de- ther has the required capability. pendents of such persons, and in emer- (ii) If the patient or sponsor agrees, gencies to such other persons as the arrange for transfer to the nearest Secretary of the Navy may prescribe: USMTF or designated USTF with re- Provided, such services are not other- quired capability, regardless of its lo- wise available in reasonably accessible cation. and appropriate non-Federal facilities. (iii) Arrange for transfer of retired Hospitalization of such persons in a members to the Veterans Administra- naval MTF is further limited by 24 tion MTF nearest the patient’s resi- U.S.C. 35 to the treatment of acute dence. medical and surgical conditions, exclu- (iv) Provide aid in releasing the pa- sive of nervous, mental, or contagious tient to a civilian provider of the pa- diseases, or those requiring domiciliary tient’s choice under the terms of Medi- care. care, if the patient is entitled. Bene- (ii) Dental care. Section 35 of title 24 ficiaries entitled to Medicare, Part A, provides for space available routine because they are 65 years of age or dental care, other than dental pros- older or because of a disability or thesis and orthodontia, for the cat- chronic renal disease, lose CHAMPUS egories of individuals enumerated in eligibility but remain eligible for care in USMTFs and designated USTFs. § 728.4(bb)(5)(i): Provided, that such (v) If the patient is authorized bene- services are not otherwise available in fits under CHAMPUS, disengage from reasonably accessible and appropriate medical management and issue a Non- non-Federal facilities.
296
VerDate 25
(iii) Transfer. Accomplish transfer (E) AUTOVON and commercial tele- and subsequent treatment of individ- phone numbers. uals in § 728.4(bb)(5)(i) per the provi- (2) DEERS and the identification card. sions of law enumerated in § 728.4(bb)(5) This subpart includes DEERS proce- (i) and (ii). dures for eligibility verification checks (cc) Verification of patient eligibility— to be used in conjunction with the (1) DEERS. (i) The Defense Enrollment identification card system as a basis Eligibility Reporting System (DEERS) for verifying eligibility for medical and was implemented by OPNAVINST dental care in USMTFs and uniformed 1750.2. Where DEERS has been started services dental treatment facilities at naval medical and dental treatment (USDTFs). For other than emergency facilities, commanding officers will ap- care, certain patients are required to point, in writing, a DEERS project offi- have a valid ID card in their possession cer to perform at the base level. The and, under the circumstances described project officer’s responsibilities and in § 728.4(cc)(3), are also required to functions include coordinating, execut- meet DEERS criteria before treatment ing, and maintaining base-level DEERS or services are rendered. Although policies and procedures; providing liai- DEERS and the ID card system are son with line activities, base-level per- interrelated, there will be instances sonnel project officers, and base-level where a beneficiary is in possession of public affairs project officers; meeting an apparently valid ID card and the and helping the contractor field rep- DEERS verification check shows that resentative on site visits to each facil- eligibility has terminated or vice ity under the project officer’s cog- versa. Eligibility verification via an ID nizance; and compiling and submitting card does not override an indication of reports required within the command ineligibility in DEERS without some and by higher authority. other collateral documentation. De- (ii) Commanding officers of afloat pendents (in possession of or without and deployable units are encouraged to ID cards) who undergo DEERS check- appoint a unit DEERS medical project ing will be considered ineligible for the officer as a liaison with the hospital reasons stated in § 728.4(cc)(4)(v) (A) project officer providing services to through (G). For problem resolution, local medical and dental treatment fa- refer dependents of active duty mem- cilities. Distribute notice of such ap- bers to the personnel support detach- pointments to all concerned facilities. ment (PSD) servicing the sponsor’s (iii) When a DEERS project officer command; refer retirees, their depend- has been appointed by a naval MTF or ents, and survivors to the local PSD. DTF, submit a message (report control (3) Identification cards and procedures. symbol MED 6320–42) to All individuals, including members of COMNAVMEDCOM, with information uniformed services in uniform, must copies to appropriate chain of com- provide valid identification when re- mand activities, no later than 10 Octo- questing health benefits. Although the ber annually, and situationally when most widely recognized and acceptable changes occur. As a minimum, the re- forms of identification are DD 1173, DD port will provide: 2, Form PHS–1866–1, and Form PHS– (A) Name of reporting facility. If the 1866–3 (Ret), individuals presenting for project officer is responsible for more care without such identification may than one facility, list all such facili- be rendered care upon presentation of ties. other identification as outlined in this (B) Mailing address including com- part. Under the circumstances indi- plete zip code (zip + 4) and unit identi- cated, the following procedures will be fication code (UIC). Include this infor- followed when individuals present mation for all facilities listed in without the required ID card. § 728.4(cc)(1)(iii)(A). (i) Children under 10. Although a DD (C) Name, grade, and corps of the 1173 (Uniformed Services Identification DEERS project officer designated. and Privilege Card) may be issued to (D) Position title within parent facil- children under 10 years of age, under ity. normal circumstances they are not.
297
VerDate 25
Accordingly, certification and identi- change in the beneficiary’s cir- fication of children under 10 years of cumstances since the previous deter- age are the responsibility of the mem- mination of dependency and issuance of ber, retired member, accompanying the expired card. Place the statement parent, legal guardian, or acting guard- in the beneficiary’s medical record. In- ian. Either the DD 1173 issued the form the patient or sponsor that if eli- spouse of a member or former member gibility is not verified by presentation or the identification card of the mem- of a valid ID card to the patient admin- ber or former member (DD 2, DD 2 istration department within 30 cal- (Ret), Form PHS–1866–1, or Form PHS– endar days, the facility will initiate ac- 1866–3 (Ret)) is acceptable for the pur- tion to recoup the cost of care. If indi- pose of verifying eligibility of a child cated, billing action for the cost of under 10 years of age. treatment will then proceed following (ii) Indefinite expiration. The fact that NAVMED P–5020. the word ‘‘indefinite’’ may appear in (B) When recent accessions, National the space for the expiration date on a Guard, reservists, or Reserve units are member’s card does not lessen its ac- called to active duty for a period great- ceptability for identification of a child. er than 30 days and neither the mem- See § 728.4(cc)(3)(iii) for dependent’s bers nor their dependents are at yet in cards with an indefinite expiration receipt of their identification cards, date. satisfactory collateral identification (iii) Expiration date. To be valid, a de- may be accepted in lieu thereof, i.e., of- pendent’s DD 1173 must have an expira- ficial documents such as orders, along tion date. Do not honor a dependent’s with a marriage license, or birth cer- DD 1173 with an expiration date of ‘‘in- tificate which establish the individ- definite’’. Furthermore, such a card ual’s status as a dependent of a mem- should be confiscated, per ber called to duty for a period which is NAVMILPERSCOMINST 1750.1A, and not specified as 30 days or less. For a forwarded to the local PSD. The PSD child, the collateral documentation may then forward it to the Com- must include satisfactory evidence mander, Naval Military Personnel that the child is within the age limit- Command, (NMPC (641D)/Pers 7312), De- ing criteria outlined in § 728.31(b)(4). An partment of the Navy, Washington, DC eligible dependent’s entitlement, under 20370–5000 for investigation and final the provisions of this subpart, starts on disposition. Render necessary emer- the first day of the sponsor’s active gency treatment to such a person. The service and ends as of midnight on the patient administration department last day of active service. must determine such a patient’s bene- (4) DEERS checking. Unless otherwise ficiary status within 30 calendar days indicated, all DEERS verification pro- and forward such determination to the cedures will be accomplished in con- fiscal department. If indicated, billing junction with possession of a valid ID action for treatment will then proceed card. following NAVMED P–5020. (i) Prospective DEERS processing—(A) (iv) Without cards or with expired Appointments. To minimize difficulties cards. (A) When parents or parents-in- for MTFs, DTFs, and patients, DEERS law (including step-parents and step- checks are necessary for prospective parents-in-law) request care in naval patients with future appointments MTFs or DTFs without a DD 1173 in made through a central or clinic ap- their possession or with expired DD pointment desk. Without advance 1173’s, render care if they or their spon- DEERS checking, patients could arrive sor sign a statement that the individ- at a facility with valid ID cards but ual requiring care has a valid ID card may fail the DEERS check, or may ar- or that an application has been submit- rive without ID cards but be identified ted for a renewal DD 1173. In the latter by the DEERS check as eligible. instance, include in the statement the Records, including full social security allegation that: (1) The beneficiary is numbers, of central and clinic appoint- dependent upon the service member for ment systems will be passed daily to over one-half of his or her support, and the DEERS representative for a pro- (2) that there has been no material spective DEERS check. This enables
298
VerDate 25
appointment clerks to notify individ- (2) Retired members will receive a uals with appointments of any appar- DEERS vertification check at the ini- ent problem with the DEERS or ID tial visit to any DTF and annually card system and refer those with prob- thereafter at time of treatment at the lems to appropriate authorities prior same facility. To qualify for care as a to the appointment. result of the annually performed ver- (B) Prescriptions. Minimum checking ification check, the individual perform- requirements of the program require ing the eligibility check will make a prospective DEERS checks on all indi- notation to this effect on an SF 603, viduals presenting prescriptions of ci- Health Record—Dental. Include in the vilian providers (see notation the date and result of the § 728.4(cc)(4)(iv)(D)). check. (ii) Retrospective DEERS processing. (3) Dependents will have a DEERS Pass daily logs (for walk-in patients, eligibility verification check upon ini- patients presenting in emergencies, or tial presentation for evaluation or patients replacing last minute appoint- treatment. This check will be valid for ment cancellations) to the DEERS rep- up to 30 days if, when the check is con- resentative for retrospective batch ducted, the period of eligibility re- processing if necessary for the facility quested is 30 days. A 30-day eligibility to meet the minimum checking re- check may be accomplished online or quirements in § 728.4(cc)(4)(iv). For via telephone by filling in or request- DEERS processing, the last four digits ing the operator to fill in a 30 day pe- of a social security number are insuffi- riod in the requested treatment dates cient. Accordingly, when retrospective on the DEERS eligibility inquiry processing is necessary, the full social screen. Each service or clinic is ex- security number of each patient must pected to establish auditable proce- be included on daily logs. dures to trace the date of the last eligi- (iii) Priorities. With the following ini- bility verification on a particular de- tial priorities, conduct DEERS eligi- pendent. bility checks using a CRT terminal, (D) One hundred percent of pharmacy single-number dialer telephone, or 800 outpatients presenting new prescrip- number access provided for the specific tions written by a civilian provider. purpose of DEERS checking to: Prospective DEERS checks are re- (A) Determine whether a beneficiary quired for all patients presenting pre- is enrolled. scriptions of civilian providers. A (B) Verify beneficiary eligibility. DEERS check is not required upon Eastablishment of eligibility is under presentation of a request for refill of a the cognizance of personnel support ac- prescription of a civilian provider if tivities and detachments. the original prescription was filled by a (C) Identify any errors on the data USMTF within the past 120 days. base. (E) One hundred percent of all indi- (iv) Minimum checking requirements. viduals requesting treatment without a Process patients presenting at valid ID card if they represent them- USMTFs and DTFs in the 50 States for selves as individuals who are eligible to DEERS eligibility verification per the be included in the DEERS data base. following minimum checking require- (v) Ineligibility determinations. When a ments. DEERS verification check is performed (A) Twenty five percent of all out- and eligibility cannot be verified for patient visits. any of the following reasons, deny rou- (B) One hundred percent of all admis- tine nonemergency care unless the ben- sions. eficiary meets the criteria for a (C) One hundred percent of all dental DEERS eligibility override as noted in visits at all DTFs for other than active § 728.4(cc)(4)(viii). duty members, retired members, and (A) Sponsor not enrolled in DEERS. dependent. (B) Dependent not enrolled in (1) Active duty members are exempt DEERS. from DEERS eligibility verification (C) ‘‘End eligibility date’’ has passed. checking at DTFs. Each individual in the DEERS data
299
VerDate 25
base has a date assigned on which eligi- on the form NAVMED 6320/9 now re- bility is scheduled to end. quiring presentation of a valid ID card (D) Sponsor has separated from ac- within 30 calendar days. Deny treat- tive duty and is no longer entitled to ment or admission in physician deter- benefits. mined nonemergency situations of per- (E) Spouse has a final divorce decree sons refusing to sign the certification from sponsor and is not entitled to con- on the NAVMED 6320/9. For persons tinued eligibility as a former spouse. rendered treatment, patient adminis- (F) Dependent child is married. tration department personnel must de- (G) Dependent becomes an active termine their eligibility status within duty member of a uniformed service. 30 calendar days and forward such de- (Applies only to CHAMPUS benefits termination to the fiscal department. since the former dependent becomes If indicated, billing action for treat- entitled to direct care benefits in his or ment will then proceed following her own right as an active duty mem- NAVMED P–5020. ber and must enroll in DEERS.) (viii) DEERS overrides. Possession of (vi) Emergency situations. When a phy- an ID card alone does not constitute sician determines that emergency care sufficient proof of eligibility when the is necessary, initiate treatment. If ad- DEERS check does not verify eligi- mitted after emergency treatment has bility. What constitutes sufficient been provided, a retrospective DEERS proof will be determined by the reason check is required. If an emergency ad- the patient failed the DEERS check. mission or emergency outpatient treat- For example, groups most expected to ment is accomplished for an individual fail DEERS eligibility checks are re- whose proof of eligibility is in ques- cent accession members and their de- tion, the patient administration de- pendents, Guard or Reserve members partment must determine the individ- recently activated for training periods ual’s beneficiary status within 30 cal- of greater than 30 days and their de- endar days of treatment and forward pendents, and parents and parents-in- such determination to the fiscal de- law with expired ID cards. Upon pres- partment. Eligibility verifications will entation of a valid ID card, the follow- normally consist of presentation of a ing are reasons to ‘‘override’’ a DEERS valid ID card along with either a posi- check either showing the individual as tive DEERS check or a DEERS over- ineligible or when an individual does ride as noted in § 728.4(cc)(4)(viii). If in- not appear in the DEERS data base. dicated, billing action for treatment (A) DD 1172. Patient presents an will then proceed per NAVMED P–5020. original of a copy of a DD 1172, Applica- (vii) Eligibility verification for non- tion for Uniformed Services Identifica- emergency care. When a prospective pa- tion and Privilege Card, which is also tient presents without a valid ID card used to enroll beneficiaries in DEERS. and: If the original is used, the personnel (A) DEERS does not verify eligi- support detachment (PSD) furnishing bility, deny nonemergency care. Care the original will list the telephone denial will only be accomplished by su- number of the verifying officer to aid pervisory personnel designated by the in verification. Any copy presented commanding officer. must have an original signature in sec- (B) The individual is on the DEERS tion III; printed name of verifying offi- data base, do not provide non- cer, his or her grade, title, and tele- emergency care until a NAVMED 6320/ phone number; and the date the copy 9, Dependent’s Eligibility for Medical was issued. For treatment purposes, Care, is signed by the member, patient, this override expires 120 days from the patient’s parent, or patient’s legal or date issued. acting guardian. This form attests the (B) Recently issued identification fact that eligibility has been estab- cards—(1) DD 1173. Patient presents a lished per appropriate directives and recently issued DD 1173, Uniformed includes the reason a valid ID card is Services Identification and Privilege not in the prospective patient’s posses- Card. Examples are spouses recently sion. Apprise the aforementioned re- married to sponsor, newly eligible step- sponsible individual of the provisions children, family members of sponsors
300
VerDate 25
recently entering on active duty for a the survivor’s name appears as the period greater than 30 days, parents or sponsor but the survivor is not listed parents-in-law, and unremarried separately as a dependent. In any of spouses recently determined eligible. these situations, if the survivor has a For treatment purposes, this override valid ID card, treat the individual on expires 120 days from the date issued. the first visit and refer him or her to (2) Other ID cards. Patient presents the local personnel support detachment any of the following ID cards with a for correction of the DEERS data base. date of issue within the previous 120 For second and subsequent visits prior days: DD 2, DD 2 (Ret), Form PHS 1866– to appearance on the DEERS data base, 1, or Form PHs 1866–3 (Ret). When these require survivors to present a DD 1172 ID cards are used for the purpose of issued per § 728.4(cc)(4)(viii)(A). verifying eligibility for a child, collat- (H) Patients not eligible for DEERS en- eral documentation is necessary to en- rollment. (1) Secretarial designees are sure the child is actually the alleged not eligible for enrollment in DEERS. sponsor’s dependent and in determining Their eligibility determination is veri- whether the child is within the age fied by the letter, on one of the service limiting criteria outlined in Secretaries’ letterhead, of authoriza- § 728.31(b)(4). tion issued. (C) Active duty orders. Patient or (2) When it becomes necessary to sponsor presents recently issued orders make a determination of eligibility on to active duty for a period greater than other individuals not eligible for entry 30 days. Copies of such orders may be on the DEERS data base, patient ad- accepted up to 120 days of their issue ministration department personnel date. will obtain a determination from the (D) Newborn infants. Newborn infants purported sponsoring agency, if appro- for a period of 1 year after birth pro- priate. When necessary to treat or vided the sponsor presents a valid ID admit a person who cannot otherwise card. present proof of eligibility for care at (E) Recently expired ID cards. If the the expense of the Government, do not DEERS data base shows an individual deny care based only on the fact that as ineligible due to an ID card that has the individual is not on the DEERS expired within the previous 120 days data base. In such instances, follow the (shown on the screen as ‘‘Elig with procedures in NAVMED P–5020 to mini- valid ID card’’), care may be rendered mize, to the fullest extent possible, the when the patient has a new ID card write-off of uncollectible accounts. issued within the previous 120 days. (F) Sponsor’s duty station has an FPO Subpart B—Members of the Uni- or APO number or sponsor is stationed formed Services on Active outside the 50 United States. Do not deny Duty care to bona fide dependents of spon- sors assigned to a duty station outside § 728.11 Eligible beneficiaries. the 50 United States or assigned to a (a) A member of a uniformed service, duty station with an FPO or APO ad- as defined in subpart A, who is on ac- dress as long as the sponsor appears on tive duty is entitled to and will be pro- the DEERS data base. Before initiating vided medical and dental care and ad- nonemergency care, request collateral juncts thereto. For the purpose of this documentation showing relationship to part, the following are also considered sponsor when the relationship is or on active duty: may be in doubt. (1) Members of the National Guard in (G) Survivors. Dependents of deceased active Federal service pursuant to a sponsors when the deceased sponsor ‘‘call’’ under 10 U.S.C. 3500 or 8500. failed to enroll in or have his or her de- (2) Midshipmen of the U.S. Naval pendents enrolled in DEERS. This situ- Academy. ation will be evidenced when an eligi- (3) Cadets of the U.S. Military Acad- bility check on the surviving widow or emy. widower (or other dependent) finds that (4) Cadets of the Air Force Academy. the sponsor does not appear (screen (5) Cadets of the Coast Guard Acad- shows ‘‘Sponsor SSN Not Found’’) or emy.
301
VerDate 25
(b) The following categories of per- and other orthopedic appliances (see sonnel who are on active duty are enti- subpart H). When these items need re- tled to and will be provided medical pair or replacement and the items were and dental care and adjuncts thereto to not damaged or lost through neg- the same extent as is provided for ac- ligence, repair or replacement is au- tive duty members of the Regular serv- thorized at Goverment expense. ice (except reservists when on active (iv) Routine dental care. duty for training as delineated in (2) When a USMTF, with a mission of § 728.21). providing the care required, releases (1) Members of the Reserve compo- the medical management of an active nents. duty member of the Navy, Marine (2) Members of the Fleet Reserve. Corps, Army, Air Force, or a commis- (3) Members of the Fleet Marine sioned corps member of USPHS or Corps Reserve. NOAA, the resulting civilian health (4) Members of the Reserve Officers’ care costs will be paid by the referring Training Corps. facility. (5) Members of all officer candidate (3) The member’s uniformed service programs. will be billed for care provided by the (6) Retired members of the uniformed civilian facility only when the refer- services. ring MTF is not organized nor author- ized to provide needed health care (see § 728.12 Extent of care. part 732 of this chapter for naval mem- Members who are away from their bers). Saturation of service or facilities duty stations or are on duty where does not fall within this exception. there is no MTF of their own service When a naval MTF retains medical may receive care at the nearest avail- management, the costs of supplemental able Federal MTF (including des- care obtained from civilian sources is ignated USTFs) with the capability to paid from funds available to operate provide required care. Care will be pro- the MTF which manages care of the pa- vided without regard to whether the tient. When it becomes necessary to condition for which treatment is re- refer a USPHS or NOAA commissioned quired was incurred or contracted in corps member to a non-Federal source line of duty. of care, place a call to the Department (a) All uniformed services active duty of Health and Human Services (DHHS), members. (1) All eligible beneficiaries Chief, Patient Care Services on (301) covered in this subpart are entitled to 443–1943 or FTS 443–1943 if DHHS is to and will be rendered the following assume financial responsibility. Pa- treatment and services upon applica- tient Care Services is the sole source tion to a naval MTF whose mission in- for providing authorization for non- cludes the rendering of the care re- Federal care at DHHS expense. quired. This entitlement provides that (b) Maternity episode for active duty fe- when required care and services are be- male members. A pregnant active duty yond the capabilities of the facility to member who lives outside the MHSS which the member applies, the com- inpatient catchment area of all manding officer of that facility will ar- USMTFs is permitted to choose wheth- range for care from another USMTF, er she wishes to deliver in a closer ci- designated USTF, or other Federal vilian hospital or travel to the USMTF source or will authorize and arrange for delivery. If such a member chooses for direct use of supplemental services to deliver in a naval MTF, makes ap- and supplies from civilian non-Federal plication, and presents at that facility sources out of operation and mainte- at the time for delivery, the provisions nance funds. of paragraph (a) of this section apply (i) Necessary hospitalization and with respect to the furnishing of need- other medical care. ed care, including routine newborn care (ii) Occupational health services as (i.e., nursery, newborn examination, defined in § 728.2(z). PKU test, etc.); arrangements for care (iii) Necessary prosthetic devices, beyond the facility’s capabilities; or prosthetic dental appliances, hearing the expenditure of funds for supple- aids, spectacles, orthopedic footwear, mental care or services. Pay expenses
302
VerDate 25
incurred for the infant in USMTFs or ored DD 2 Res (Reservists on active civilian facilities (once the mother has duty for training)) alone does not con- been admitted to the USMTF) from stitute sufficient proof of eligibility. funds available for care of active duty Accordingly, make a DEERS check, per members, unless the infant becomes a § 728.4(cc), before other than emergency patient in his or her own right either care is rendered to the extent that may through an extension of the birthing be authorized. hospital stay because of complications, subsequent transfer to another facility, § 728.14 Pay patients. or subsequent admission. If the Gov- Care is provided on a reimbursable ernment is to assume financial respon- basis to: Coast Guard active duty offi- sibility for: cers, enlisted personnel, and academy (1) Care of pregnant members resid- cadets; Public Health Service Commis- ing within the MHSS inpatient sioned Corps active duty officers; and catchment area of a uniformed services Commissioned Corps active duty offi- hospital or in the inpatient catchment cers of the National Oceanic and At- area of a designated USTF, such mem- mospheric Administration. Accord- bers are required to: ingly, patient administration personnel (i) Make application to that facility will initiate the collection action proc- for care, or ess in subpart J in each instance of in- (ii) Obtain authorization, per part 732 patient or outpatient care provided to of this chapter, for delivery in a civil- these categories of patients. ian facility. (2) Non-Federal care of pregnant Subpart C—Members of Reserve members residing outside inpatient catchment areas of USMTFs and Components, Reserve Offi- USTFs, the member must request and cers’ Training Corps, Navy receive authorization per part 732 of and Marine Corps Officer this chapter. Part 732 of this chapter Candidate Programs, and Na- also provides for cases of precipitious tional Guard Personnel labor necessitating emergency care. OPNAVINST 6000.1, Management of § 728.21 Navy and Marine Corps re- Pregnant Servicewomen, contains med- servists. ical-administrative guidelines on man- (a) Scope. This section applies to re- agement prior to admission and after servists, as those terms are defined in discharge from admission for delivery. § 728.2, ordered to active duty for train- (c) Reserve and National Guard person- ing or inactive duty training for 30 nel. In addition to those services cov- days or less. Reservists serving under ered in paragraphs (a) and (b) of this orders specifying duty in excess of 30 section, Reserve and National Guard days, such as Sea and Air Mariners personnel are authorized the following (SAMS) while on initial active duty for under conditions set forth. (See § 728.25 training, will be provided care as mem- for additional benefits for National bers of the Regular service per subpart Guard personnel.) B. (1) Personnel whose units have an ac- (b) Entitlement. Per 10 U.S.C. 1074a(a), tive Army mission of manning missile reservists who incur or aggravate an sites are authorized spectacle inserts injury, illness, or disease in line of for protective field masks. duty while on active duty for training (2) Personnel assigned to units des- or inactive duty training for a period of ignated for control of civil disturb- 30 days or less, including travel to and ances are authorized spectacle inserts from that duty, are entitled to medical for protective field masks M17. and dental care appropriate for the treatment of that injury, disease, or § 728.13 Application for care. illness until the resulting disability Possession of an ID card (a green col- cannot be materially improved by fur- ored DD 2 (with letter suffix denoting ther hospitalization or treatment. Care branch of service), Armed Forces Iden- is authorized for such an injury, ill- tification Card; a green colored PHS ness, or disease beyond the period of 1866–1, Identification Card; or a red col- training to the same extent as care is
303
VerDate 25
authorized for members of the Regular the patient can reasonably return to service (see subpart B) subject to the control of the member’s private physi- provisions of § 728.21(e). cian or dentist. (c) Questionable circumstances. If the (A) Remediable physical defects and circumstances are questionable, refer- remediable treatment for other condi- ral to the OMA or ODA is appropriate. tions. If necessary, make referral to the (B) Elective surgery. Naval Medical Command (MEDCOM–33 (ii) All dental care other than emer- for medical and MEDCOM–06 for den- gency treatment and that necessary to tal) on determinations of entitlements. correct an injury incurred in the line of (d) Line of duty. For the purpose of duty. providing treatment under laws enti- (f) Authorization for care. (1) Reserv- tling reservists to care, an injury, ill- ists covered by this subpart may be ness, or disease which is incurred, ag- provided inpatient or outpatient care gravated, or becomes manifest while a during a period of training duty with- reservist is employed in the perform- out written authorization. ance of active duty for training or in- (2) Except in emergencies or when in- active duty training (including author- patient care initiated during a period ized leave, liberty and travel to and of training duty extends beyond such from either duty) will be considered to period, reservists will be required to have been incurred in line of duty furnish written official authorization (LOD) unless the condition was in- from their unit commanding officer, or curred as a result of the reservist’s own higher authority, incident to receiving misconduct or under other cir- inpatient or outpatient care beyond cumstances enumerated in JAG Man- the period of training duty. The letter ual, chapter VIII. While the LOD inves- of authorization will include name, tigation is being conducted, such re- grade or rate, social security number, servists remain entitled to care. If the and organization of the reservist; type investigation determines that the in- of training duty being performed or jury or illness was not incurred in line that was being performed when the of duty, the civilian humanitarian non- condition manifested; diagnosis (if indigent rate is applicable if further known); and a statement that the con- care is required in naval MTFs. (See dition was incurred in line of duty and DOD Military Pay and Allowances En- that the reservist is entitled to care. If titlement Manual for allowable con- the reservist has been issued a notice structive travel times.) of eligibility (NOE) (subpart I), the (e) Treatment and services authorized. NOE may then be accepted in lieu of In addition to those services delineated the letter of authorization. When au- above, the following may be rendered thorization has not been obtained be- under circumstances outlined: forehand, care may be provided on a ci- (1) Prosthetic devices, including den- vilian humanitarian basis (see subpart tal appliances, hearing aids, spectacles, G) pending final determination of eligi- and orthopedic appliances that are lost bility. or have become damaged during train- ing duty, not through negligence of the § 728.22 Members of other reserve individual, may be repaired or replaced components of the uniformed serv- at Government expense. ices. (2) Reservists covered by this subpart (a) Members of reserve components of may be provided the following only if the Coast Guard may be provided care approved by the appropriate OMA or the same as Navy and Marine Corps re- ODA, or by the Commander, Naval servists. Medical Command (MEDCOM–33 for (b) Members of reserve components of medical and MEDCOM–06 for dental) the Army and Air Force may be pro- prior to initiation of services. vided care in naval MTFs to the same (i) Treatment for acute exacerbations extent that they are eligible for such of conditions that existed prior to a re- care in MTFs of their respective serv- servist’s period of training duty. Limit ices. Consult current Army Regulation care to that necessary for the preven- 40–3, Medical, Dental, and Veterinary tion of pain or undue suffering until Care, or Air Force Regulation 168–6,
304
VerDate 25
Persons Authorized Medical Care, as are not authorized without approval appropriate, for particular eligibility from the appropriate OMA or ODA, or requirements or contact the nearest from the Commander, Naval Medical appropriate service facility. Command (MEDCOM–33 for medical (c) When the service directive re- and MEDCOM–06 for dental). quires written authorization, obtain (v) Medical examinations and immu- such authorization from the reservist’s nizations. unit commanding officer or other ap- (vi) ROTC members are authorized propriate higher authority. continued medical care, including hos- (d) Naval MTFs in the United States pitalization, upon expiration of their are authorized to conduct physical ex- field training or practice cruise period, aminations of and administer immuni- the same as reservists in § 728.21(b) and zations to inactive reserve Public § 728.22. Health Service commissioned officers (2) While attending a civilian edu- upon presentation of a written request cational institution: from the Commissioned Personnel Op- (i) Medical care in naval MTFs, in- erations Division, OPM/OAM, 5600 Fish- cluding hospitalization, for a condition ers Lane, Rockville, MD 20852. incurred in line of duty while at or traveling to or from a military instal- § 728.23 Reserve Officers’ Training lation for the purpose of undergoing Corps (ROTC). medical or other examinations or for (a) Eligible beneficiaries. (1) Members purposes of making visits of observa- of the Senior Reserve Officers’ Train- tion, including participation in service- ing Corps of the Armed Forces includ- sponsored sports, recreational, and ing students enrolled in the 4-year Sen- training activities. ior ROTC Program or the 2-year Ad- (ii) Medical examinations, including vanced Training Senior ROTC Pro- hospitalization necessary for the prop- gram. er conduct thereof. (2) Designated applicants for mem- (iii) Required immunizations, includ- bership in the Navy, Army, and Air ing hospitalization for severe reactions Force Senior ROTC Programs during therefrom. their initial 6-weeks training period (c) Authorization. The individual’s (practice cruises or field training). commanding officer will prepare a let- (3) Medical, dental, pharmacy, veteri- ter of authorization addressed to the nary or science allied to medicine stu- commanding officer of the MTF con- dents who are commissioned officers of cerned. a reserve component of an Armed (d) ROTC members as beneficiaries of Force who have been admitted to and the Office of Workers’ Compensation Pro- training in a unit of a Senior Reserve grams (OWCP). Under circumstances Officers’ Training Corps. described therein, render care as out- (b) Extent of care. (1) While attending lined in § 728.53 to members of the or en route to or from field training or ROTC as beneficiaries of OWCP. practice cruises: (i) Medical care for a condition in- § 728.24 Navy and Marine Corps Offi- curred without reference to line of cer Candidate Programs. duty. Members of the Reserve Officers Can- (ii) Routine dental care. didate Program and Platoon Leaders (iii) Prosthetic devices, including Class are entitled to the same medical dental appliances, hearing aids, spec- and dental benefits as are provided tacles, and orthopedic appliances that members of the Navy and Marine Corps have become damaged or lost during Reserve Components. Accordingly, the training duty, not through negligence provisions of § 728.21 are applicable for of the individual, may be repaired or such members. Additionally, can- replaced as necessary at government didates for, or persons enrolled in such expense. programs are authorized access to (iv) Care of remediable physical de- naval MTFs for the purpose of conduct- fects, elective surgery or other remedi- ing special physical examination proce- able treatment for conditions that ex- dures which have been requested by the isted prior to a period of training duty Commander, Naval Medical Command
305
VerDate 25
to determine their physical fitness for Subpart D—Retired Members and appointment to, or continuation in Dependents of the Uniformed such a program. Upon a request from Services the individual’s commanding officer, the officer in charge of cognizant Navy § 728.31 Eligible beneficiaries and and Marine Corps recruiting stations, health benefits authorized. or officer selection officer, naval MTFs (a) Retired members of the uniformed are authorized to admit such persons services. Retired members, as defined in when, in the opinion of the cognizant § 728.2(aa), are authorized the same officer, hospitalization is necessary for medical and dental benefits as active the proper conduct of the special phys- duty members subject to the availabil- ical examinations. Hospitalization ity of space and facilities, capabilities should be kept to a minimum and of the professional staff, and the prior- treatment other than for humanitarian ities in § 728.3, except that: reasons, except as provided in this (1) Periodic medical examinations for part, is not authorized. members on the Temporary Disability Retired List, including hospitalization § 728.25 Army and Air Force National in connection with the conduct thereof, Guard personnel. will be furnished on the same priority basis as care to active duty members. (a) Medical and dental care. Upon (2) When vision correction is re- presentation of a letter of authoriza- quired, one pair of standard issue spec- tion, render care as set forth in AR 40– tacles, or one pair of nonstandard spec- 3 (Medical, Dental, and Veterinary tacles, are authorized when required to Care) and AFR 168–6 (Persons Author- satisfy patient needs. Two pairs of ized Medical Care) to members of the spectacles may be furnished only when Army and Air Force National Guard professionally determined to be essen- who contract a disease or become ill in tial by the examining officer. Military line of duty while on full-time National ophthalmic laboratories will not fur- Guard duty, (including leave and lib- nish occupational type spectacles, such erty therefrom) or while traveling to or as aviation, industrial safety, double from that duty. The authorizing letter segment, and mask insert, to retired will include name, social security num- military personnel ber, grade, and organization of the (NAVMEDCOMINST 6810.1 refers). member; type and period of duty in (b) Dependents of members of former which engaged (or in which engaged members. Include: (1) The spouse. when the injury or illness occurred); di- (2) The unremarried widow. agnosis (if known); and will indicate (3) The unremarried widower. that the injury suffered or disease con- (4) An unmarried legitimate child, in- tracted was in line of duty and that the cluding an adopted child or a stepchild, individual is entitled to medical or who either— dental care. Limit care to that appro- (i) Has not passed his or her 21st priate for the injury. disease, or illness birthday; until the resulting disability cannot be (ii) Is incapable of self-support be- materially improved by further hos- cause of a mental or physical incapac- pitalization or treatment. ity that existed before the 21st birth- (b) Physical examinations. AR 40–3 and day and is, or was at the time of the AFR 168–6 also authorize physical ex- member’s or former member’s death, in aminations for National Guard person- fact dependent on the member for over nel. Accordingly, when requested by an one-half of his or her support; or Army or Air Force National Guard (iii) Has not passed the 23rd birthday, unit’s commanding officer, naval MTFs is enrolled in a full-time course of may perform the requested physical ex- study in an institution of higher learn- amination per the appropriate service ing approved by the administering Sec- directive, subject to the availability of retary and is, or was at the time of the member’s or former member’s death, in space, facilities, and the capabilities of fact dependent on the member for over the staff. one-half of his or her support. (If such
306
VerDate 25
a child suffers a disabling illness or in- the final decree of divorce, dissolution, jury and is unable to return to school, or annulment occurred before 1 April the child remains eligible for benefits 1985. until 6 months after the disability is (B) Eligibility terminates the later removed, or until the 23rd birthday is of: Either 2 years from the date of the reached, whichever comes first.) final decree of divorce, dissolution, or (5) An unmarried illegitimate child annulment; or 1 April 1988 for such or illegitimate step-child who is, or former spouses whose final decree was at the time of sponsor’s death, de- occured on or after 1 April 1985. pendent on the sponsor for more than (iii) An unremarried former spouse of one-half of his or her support; residing a deceased member of former member with or in a home provided by the who meets the requirements of sponsor or the sponsor’s spouse, as ap- § 728.31(b)(7)(i) or (ii) may be provided plicable, and is— medical and dental care as a dependent (i) Under 21 years of age; or when the sponsor: (ii) Twenty-one years of age or older (A) Died before attaining age 60. but incapable of self-support because of (B) At the time of death would have a mental or physical incapacity that been eligible for retired pay under 10 existed prior to the individual’s 21st U.S.C. 1331–1337 except that the sponsor birthday; or was under 60 years of age; but the (iii) Twenty-one or 22 years of age former spouse is not eligible for care and pursuing a full-time course of edu- until the date the sponsor would have cation that is approved per attained age 60; § 728.31(b)(4)(iii). (6) A parent or parent-in-law, who is, (C) Whether or not the sponsor elect- or was at the time of the member’s or ed participation in the Survivor Bene- former member’s death, in fact depend- fit Plan of 10 U.S.C. 1447–1455. ent on the member for over one-half of (c) Eligibility factors. Care that may such parent’s support and residing in be rendered to all dependents in this the sponsor’s household. subpart D is subject to the availability (7) An unremarried former spouse of of space and facilities, capabilities of a member or former member who does the professional staff, and priorities in not have medical coverage under an § 728.3. Additionally: employer-sponsored health plan, and (1) Members of the uniformed serv- who: ices must be serving under orders (i) On the date of the final decree of specifying active duty for more than 30 divorce, dissolution, or annulment, had days before their dependents are au- been married to the member or former thorized benefits delineated in member at least 20 years during which § 728.31(d). period the member of former member (2) A dependent’s eligibility begins on performed at least 20 years of service the date the member enters on active creditable in determining that mem- duty and ends as of midnight of the ber’s or former member’s eligibility for date the sponsor’s period of active duty retired or retainer pay, or equivalent ends for any reason other than retire- pay. ment or death. Dependents lose eligi- (ii) Had been married to the member bility as of midnight of the date a of former member at least 20 years, at member is officially place in a deserter least 15 of which were during the period status. Eligibility is restored on the the member of former member per- date a deserter is returned to military formed service creditable in determin- control. ing the member’s eligibility for retired (3) A dependent (other than a former or retainer pay, or equivalent pay. The spouse) of a member or former member former spouse’s sponsor must have per- who died before attaining age 60 and at formed at least 20 years of service cred- the time of death— itable in determining the sponsor’s eli- (i) Would have been eligible for re- gibility for retired or retainer pay, or tired pay under chapter 67 of title 10 equivalent pay. U.S.C. but for the fact that the member (A) Eligibility for such former of former member was under 60 years of spouses continue until remarriage if age, and
307
VerDate 25
(ii) Had elected to participate in the (2) Outpatient care and services. Survivor Benefit Plan, may not be ren- (3) Drugs (see chapter 21, MANMED). dered medical or dental care under the (i) Prescriptions written by officers sponsor’s entitlement until the date on of the Medical and Dental Corps, civil- which such member of former member ian physicians and dentists employed would have attained age 60. by the Navy, designated officers of the (4) A spouse, not qualifying as a Medical Service Corps and Nurse Corps, former spouse, who is divorced from a independent duty hospital corpsmen, member loses eligibility for benefits as and others designated to write pre- of midnight of the date the divorce be- scriptions will be filled subject to the comes final. This includes loss of ma- availability of pharmaceuticals, and ternity care benefits for wives who are consistent with control procedures and pregnant at the time a divorce becomes applicable laws. final. A spouse does not lose eligibility (ii) Prescriptions written by civilian through issuance of an interlocutory physicians and dentists (non-Navy em- decree of divorce even when a property ployed) for eligible beneficiaries may settlement has been approved which re- be filled if: leases the member from responsibility (A) The commanding officer or CO’s for the spouse’s support. A spouse’s eli- designee determines that pharmacy gibility depends upon the relationship personnel and funds are available. of the spouse to the member; so long as (B) The items requested are routinely the relationship of husband and wife is stocked. not terminated by a final divorce or (C) The prescribed quantity is within annulment decree, eligibility contin- limitations established by the com- ues. mand. (5) Eligibility of children is not af- (D) The prescriber is in the local area fected by the divorce of parents except (limits designated by the commanding that a stepchild relationship ceases officer). upon divorce or annulment of natural (E) The provisions of chapter 21, parent and step-parent. A child’s eligi- MANMED are followed when such serv- bility for health benefits is not affected ices include the dispensing of con- by the remarriage of the divorced trolled substances. spouse maintaining custody unless the (4) Treatment on an inpatient or out- marriage is to an eligible service mem- patient basis of: ber. (i) Medical and surgical conditions. (6) A stepchild relationship does not (ii) Contagious diseases. cease upon death of the member step- (iii) Nervous, mental, and chronic parent but does cease if the natural conditions. parent subsequently remarries. (5) Physical examinations, including (7) A child of an active duty or re- eye examinations and hearing evalua- tired member, adopted after that mem- tions, and all other tests and proce- ber’s death, retains eligibility for dures necessary for a complete physical health benefits. However, the adoption examination. of a child of a living member (other (6) Immunizations. than by a person whose dependents are (7) Maternity (obstetrical) and infant eligible for health benefits at USMTFs) care, routine care and examination of terminates the child’s eligibility. the newborn infant, and well-baby care (8) If a member’s child is married be- for mothers and infants meeting the fore reaching age 21 to a person whose eligibility requirements of § 728.31(b). If dependents are not eligible for health a newborn infant of an unmarried de- benefits in USMTFs, eligibility ceases pendent minor daughter becomes a pa- as of midnight on the date of marriage. tient in his or her own right after dis- Should the marriage be terminated, charge of the mother, classify the in- the child again becomes eligible for fant as civilian humanitarian non- benefits as a dependent child if other- indigent inasmuch as § 728.31(b) does wise eligible. not define the infant as a dependent of (d) Health benefits authorized. (1) Inpa- the active duty or retired service mem- tient care including services and sup- ber. Therefore, the minor daughter’s plies normally furnished by the MTF. sponsor (parent) should be counseled
308
VerDate 25
concerning the possibility of Secretar- where adequate civilian facilities are ial designee status for the infant (see unavailable. § 728.77). (17) Special lenses (including intra- (8) Diagnostic tests and services, in- ocular lenses) or contact lenses for cluding laboratory and x-ray examina- those eye conditions which require tions. Physical therapy, laboratory, x- these items for complete medical or ray, and other ambulatory diagnostic surgical management of the condition. or therapeutic measures requeted by (18) One wig if the individual has alo- non-Navy employed physicians may be pecia resulting from treatment of a provided upon approval of the com- malignant disease: Provided the indi- manding officer or designated depart- vidual has not previously received a ment heads. Rendering of such srvices wig at the expense of the United is subordinate to and will not unduly States. interfere with providing inpatient and (e) Dependents of reserves. (1) A de- outpatient care to active duty person- pendent, as defined in § 728.31(b), of a nel and others whose priority to re- deceased member of the Naval Reserve, ceive care is equal to or greater than the Fleet Reserve, the Marine Corps such dependents. Ensure that the re- Reserve, or the Fleet Marine Corps Re- lease of any information to non-Navy serve, who— employed physicians is in consonance (i) Was ordered to active duty or to with applicable provisions of perform inactive-duty training for any SECNAVINST 5211.5C. period of time. (9) Family planning services as delin- (ii) Was disabled in the line of duty eated in SECNAVINST 6300.2A. Abor- from an injury while so employed, and tions, at the expense of the Govern- (iii) Dies from such a specific injury, ment, may not be performed except illness, or disease is entitled to the where the life of the mother would be same care as provided for dependents in endangered if the fetus were carried to § 728.31(c). term. (2) The provisions of this subpart D (10) Dental care worldwide on a space are not intended to authorize medical available basis. and dental care precluded for depend- (11) Government ambulance services, ents of members of Reserve compo- surface or air, to transport dependents nents who receive involuntary orders to, from, or between medical facilities to active duty under 10 U.S.C. 270b. when determined by the medical officer (f) Unauthorized care. In addition to in charge to be medically necessary. the devices listed in § 728.31(d)(16) as (12) Home calls when determined by unauthorized, dependents are not au- the medical officer in charge to be thorized care for elective correction of medically necessary. minor dermatological blemishes and (13) Artificial limbs and artificial marks or minor anatomical anomalies. eyes, including initial issue, fitting, re- pair, replacement, and adjustment. § 728.32 Application for care. (14) Durable equipment such as Possession of an ID card alone (DD 2 wheelchairs, hospital beds, and resus- (Retired), PHS–1866–3 (Retired), or DD citators may be issued on a loan basis. 1173 (Uniformed Services Identification (15) Orthopedic aids, braces, crutches, and Privilege Card)) does not con- elastic stockings, walking irons, and stitute sufficient proof of eligibility. similar aids. Accordingly, a DEERS check will be (16) Prosthetic devices (other than instituted per § 728.4 (cc) before medical artificial limbs and eyes), hearing aids, and dental care may be rendered except orthopedic footwear, and spectacles or in emergencies. When required inpa- contact lenses for the correction of or- tient or outpatient care is beyond the dinary refractive error may not be pro- capabilities of the naval MTF, the pro- vided dependents. These items, how- visions of § 728.34 apply. When required ever, may be sold to dependents at cost inpatient care cannot be rendered and to the Government at facilities outside a decision is made to disengage a the United States and at specific in- CHAMPUS-eligible beneficiary, the stallations within the United States provisions of § 728.33 apply.
309
VerDate 25
§ 728.33 Nonavailability statement (DD ficiary’s home catchment area or the 1251). catchment area where hospital care (a) General. Per DODINST 6015.19 of 26 was obtained, has this discretionary Nov. 1984, the following guidelines are authority. Travel in this instance effective as of 1 Jan. 1985. All pre- means the beneficiary is temporarily viously issued Nonavailability State- on a trip away from his or her perma- ment guidelines and reporting require- nent residence. The reason the patient ments are superseded. is traveling, the distance involved in (b) Applicability. The following provi- the travel, and the time away from the sions are applicable to nonemergency permanent residence is not critical to inpatient care only. A DD 1251 is not the principle inherent in the policy. required: The issuing officer to whom the re- (1) For emergency care (see para- quest for a Nonavailability Statement graph (d)(1)) of this section. is made should reasonably determine (2) When the beneficiary has other in- that the trip was not made, and the ci- surance (including Medicare) that pro- vilian care is not (was not) obtained, vides primary coverage for a covered with the primary intent of avoiding use service. of a USMTF or USTF serving the bene- (3) For medical services that ficiary’s home area. CHAMPUS clearly does not cover. (d) Guidelines for issuing—(1) Emer- (c) Reasons for issuance. DD 1251’s gency care. Emergency care claims do may be issued for only the following not require an NAS; however, the na- reasons: ture of the service or care must be cer- (1) Proper facilities are not available. tified as an emergency by the attend- (2) Professional capability is not ing physician, either on the claim form available. or in a separate signed and dated state- (3) It would be medically inappropri- ment. Otherwise, a DD 1251 is required ate (as defined in § 728.2(u)) to require by CHAMPUS-eligible beneficiaries the beneficiary to use the USMTF and who are subject to the provisions of the attending physician has specific this section. prior approval from the facility’s com- (2) Emergency maternity care. Unless manding officer or higher authority to substantiated by medical documenta- make such determination. tion and review, a maternity admission (i) Issuance for this reason should be would not be deemed as an emergency restricted to those instances when de- since the fact of the pregnancy would nial of the DD 1251 could result in a have been established well in advance significant risk to the health of any pa- of the admission. In such an instance, tient requiring any clinical specialty. the beneficiary would have had suffi- (ii) Issuing authorities have discre- cient opportunity to obtain a DD 1251 if tionary authority to evaluate each sit- required in her residence catchment uation and issue a DD 1251 under the area. ‘‘medically inappropriate’’ reason if: (3) Newborn infant(s) remaining in hos- (A) In consideration of individual pital after discharge of mother. A new- medical needs, personal constraints on born infant remaining in the hospital an individual’s ability to get to the continuously after discharge of the USMTF results in an unreasonable lim- mother does not require a separate DD itation on that individual’s ability to 1251 for the first 15 days after the get required medical care, and mother is discharged. Claims for care (B) The issuing authority determines beyond this 15-day limitation must be that obtaining care from a civilian accompanied by a valid DD 1251 issued source selected by the individual would in the infant’s name. This is due to the result in significantly less limitations fact that the infant becomes a patient on that individual’s ability to get re- in his or her own right (the episode of quired medical care than would result care for the infant after discharge of if the individual was required to obtain the mother is not considered part of care from a USMTF. the initial reason for admission of the (C) A beneficiary is in a travel status. mother (delivery), and is therefore con- The commanding officer of the first fa- sidered a separate admission under a cility contacted, in either the bene- different diagnosis).
310
VerDate 25
(4) Cooperative care program. When a When other than written communica- DD 2161, Referral for Civilian Medical tion is made to ascertain capability, Care, is issued for inpatient care in make a record in the log required in connection with the Cooperative Care paragraph (h) of this section that ‘‘Tel- Program (§ 728.4(z)(5)(iv)) for care under ephonic (or other) determination was CHAMPUS, a DD 1251 must also be made on (date) that required care was issued. not available at (name of other (5) Beneficiary responsibilities. Bene- USMTF(s) or USTF(s) contacted)’’. The ficiaries are responsible for determin- individual ascertaining this informa- ing whether an NAS is necessary in the tion will sign this notation. area of their residence and for obtain- (3) Once established that a DD 1251 is ing one, if required, by first seeking authorized and will be issued, the fol- nonemergency inpatient care in the lowing will apply: USMTF or USTF serving the (i) Do not refer patients to a specific catchment area. Beneficiaries cannot source of care. avoid this requirement by arranging to (ii) Nonavailability Statements be away from their residence when issued at commands outside the United nonemergency inpatient care is ob- States are not valid for care received in tained, e.g., staying with a relative or facilities located within the United traveling. Individuals requiring an States. Statements issued within the NAS because they reside in the inpa- United States are not valid for care re- tient catchment area of a USMTF or ceived outside the United States. USTF also require an NAS for non- (iii) The issuing authority will: emergency care received while away (A) If capability permits, prepare a from their inpatient catchment area. DD 1251 via the automated application (e) Issuing authority. Under the direc- of DEERS. Where this system is oper- tion of the Commander, Naval Medical ational, it provides for transmitting Command, exercised through com- quarterly reports to the Office of the manders of naval geographic medical Assistant Secretary of Defense for commands, naval MTFs will issue Non- Health Affairs (OASD(HA)) by elec- availability Statements only when care tronic means. System users should required is not available from the refer to their DEERS/NAS Users Man- naval MTF and the beneficiary’s place ual for specific guidance on the use of of residence is within the catchment the automated system. At activities area (as defined in § 728.2(d)) of the where the DEER/NAS automated sys- issuing facility or as otherwise directed tem is not operational, prepare each by the Secretary of Defense. When the DD 1251 per instructions on the reverse facility’s inpatient catchment area of the form. After completion, if au- overlaps the inpatient catchment area thorized by the facility CO, the issuing of one or more other USMTFs or authority will sign the DD 1251. Give a USTFs with inpatient capability and copy to the patient for presentation to the residence of the beneficiary is a participating civilian provider, or for within the same catchment area of one submission with the claim of a non- or more other USMTFs or USTFs with participating provider. Retain a copy inpatient capability, the issuing au- for the issuing activity’s records. Re- thority will: tain the original for subsequent trans- (1) Determine whether required care mittal to the Naval Medical Data Serv- is available at any other USMTFs or ices Center per paragraph (j) of this USTFs whose inpatient catchment area section. overlaps the beneficiary’s residence. If (B) Explain to the patient or other care is available, refer the beneficiary responsible family member the validity to that facility and do not issue a DD period of the DD 1251 (see paragraph (f) 1251. of this section). (2) Implement measures ensuring (C) Ensure that beneficiaries are that an audit trail related to each clearly advised of the cost-sharing pro- check and referral is maintained, in- visions of CHAMPUS and of the fact cluding the check required before ret- that the issuance of a Nonavailability roactive issuance of a DD 1251 as delin- Statement does not imply that eated in paragraph (g) of this section. CHAMPUS will allow any and all costs
311
VerDate 25
incurred through the use of the DD Data Services Center along with others 1251. The issuance of a DD 1251 indi- issued during the week of issuance cates only that care requested is not (paragraph (j) of this section refers). available at a USMTF or USTF serving (h) Annotating DD 1251’s. Before the beneficiary’s residence inpatient issuance, annotate each DD 1251 per catchment area. the instructions for completion on the (D) Review, with the patient or re- reverse of the form. DD 1251’s issued sponsible family member, instructions under the CO’s discretionary authority 1 through 6 on the face of the DD 1251 for the ‘‘medically inappropriate rea- and have the patient or responsible son (paragraph (c)(3)(ii) of this section) family member sign acknowledgement will be annotated in the remarks sec- that such review has been made and is tion documenting the special cir- understood. cumstances necessitating issuance, the (E) Advise recipients that CHAMPUS name and location of the source of care fiscal intermediaries may deny claims selected by the beneficiary, and ap- of individuals who are not enrolled in proximate distance from the source se- the Defense Enrollment Eligibility Re- lected to the nearest USMTF or USTF porting System (DEERS). with capability (see instruction num- (f) Validity period. DD 1251’s issued ber 2 on the reverse of the DD 1251). Es- for: tablish and maintain a consecutively (1) Other than maternity care are numbered log to include for each indi- valid for a hospital admission occur- vidual to whom a DD 1251 is issued: ring within 30 days of issuance and re- (1) Patient’s name and identifying main valid from the date of admission data. until 15 days after discharge from the (2) The facility unique NAS number facility rendering inpatient care. This (block number 1 on the DD 1251). allows for any follow-on treatment re- lated directly to the original admis- (i) Appeal procedures. Beneficiaries sion. may appeal the denial of their request (2) Maternity episodes are valid if for a DD 1251. This procedure consists outpatient of inpatient treatment re- of four levels within Navy, any one of lated to the pregnancy is initiated which may terminate action and order within 30 days of its issuance. They re- issuance of a Nonavailability State- main valid for care of the mother ment if deemed warranted: through termination of the pregnancy (1) The first level is the chief of serv- and for 42 days thereafter to allow for ice, or director of clinical services if postnatal care to be included in the the chief of service is the cognizant au- maternity episode. (See paragraph thority denying the beneficiary’s origi- (d)(3) of this section for the validity pe- nal request. riod of DD 1251’s for infants remaining (2) The second level is the command- after discharge of the mother.) ing officer of the naval MTF denying (g) Retroactive issuance. Issue Non- the issuance. Where the appeal is de- availability Statements retroactively nied and denial is upheld at the com- only if required care could not have manding officer’s level, inform bene- been rendered in a USMTF or USTF as ficiaries that their appeal may be for- specified in paragraph (e) of this sec- warded to the geographic commander tion at the time services were rendered having jurisdictional authority. in the civilian sector. At the time a (3) The third level is the appropriate retroactive issuance is requested, the geographic commander, if the appeal is facility receiving the request will de- denied at this level, inform bene- termine whether capability existed at ficiaries that their appeal may be for- the USMTF or USTF serving the inpa- warded to the Commander, Naval Medi- tient catchment area wherein the bene- cal Command, Washington, DC 20372– ficiary resides (resided) or at any of the 5120. facilities in the overlapping area de- (4) The Commander, Naval Medical scribed in paragraph (e) of this section. Command, the fourth level of appeal, While the date of service will be re- will evaluate all documentation sub- corded on the DD 1251, send the re- mitted and arrive at a decision. The tained original to the Naval Medical beneficiary will be notified in writing
312
VerDate 25
of this decision and the reasons there- Subpart E—Members of Foreign for. Military Services and Their De- (j) Data collection and reporting. Do pendents not issue the original of each DD 1251 prepared at activities where the DEER/ § 728.41 General provisions. NAS automated system is not oper- (a) Dependent. As used in this sub- ational. Send the retained originals to part, the term ‘‘dependent’’ denotes a the Commanding Officer, Naval Medi- person who bears one of the following cal Data Services Center (Code–03), Be- relationships to his or her sponsor: thesda, MD 20814–5066 for reporting (1) A wife. under report control symbol DD-HA (Q) (2) A husband if dependent on his 1463(6320). sponsor for more than one-half of his support. § 728.34 Care beyond the capabilities (3) An unmarried legitimate child, in- of a naval MTF. cluding an adopted or stepchild who is When either during initial evaluation dependent on the sponsor for over one- or during the course of treatment of an half of his or her support and who ei- individual authorized care in this sub- ther: part, a determination is made that re- (i) Has not passed the 21st birthday; quired care or services are beyond the or capability of the naval MTF, the provi- (ii) Is incapable of self-support due to sions of § 728.4(z)(2) apply. a physical or mental incapacity that existed prior to reaching the age of 21; § 728.35 Coordination of benefits— or third party payers. (iii) Has not passed the 23rd birthday Title 10 U.S.C. 1095 directs the serv- and is enrolled in a full-time course of ices to collect from third-party payers study in an accredited institution of the reasonable costs of inpatient hos- higher learning. pital care incurred by the United (b) Transfer to naval MTFs in the States on behalf of retirees and depend- United States. Do not transfer personnel ents. Naval hospital collection agents covered in this subpart to the United have been provided instructions rel- States solely for the purpose of obtain- ative to this issue and are responsible ing medical care at naval MTFs. Con- for initiating claims to third-party sideration may be given however, in payers for the cost of such care. Admis- special circumstances following laws of sion office personnel must obtain in- humanity or principles of international surance, medical service, or health courtesy. Transfer to naval MTFs in plan (third-party payer) information the United States of such persons lo- from retirees and dependents upon ad- cated outside the United States re- mission and forward this information quires approval of the Secretary of the Navy. Naval commands, therefore, to the collection agent. should not commit the Navy by a § 728.36 Pay patients. promise of treatment in the United States. Approval generally will not be Care is provided on a reimbursable granted for treatment of those who suf- basis to retired Coast Guard officers fer from incurable afflictions, who re- and enlisted personnel, retired Public quire excessive nursing or custodial Health Service Commissioned Corps of- care, or those who have adequate facili- ficers, retired Commissioned Corps offi- ties in their own country. When a re- cers of the National Oceanic and At- quest is received concerning transfer mospheric Administration, and to the for treatment at a naval MTF in the dependents of such personnel. Accord- United States, the following procedures ingly, patient administration personnel apply: will follow the provisions of subpart J (1) Forward the request to the Chief to initiate the collection action proc- of Naval Operations (OP–61), with a ess when inpatient or outpatient care copy to the Commander, Naval Medical is provided to these categories of bene- Command, Washington, DC 20372–5120 ficiaries. for administrative processing. Include:
313
VerDate 25
(i) Patient’s full name and grade or of § 728.12 are applicable to military rate (if dependent, the sponsor’s name personnel and § 728.31(d) through § 728.34 and grade or rate also). to accompanying dependents. (ii) Country of which a citizen. (2) Military ships and aircraft person- (iii) Results of coordination with the nel. Crew and passengers of visiting chief of the diplomatic mission of the military aircraft and crews of ships of country involved. NATO nations which land or come into (iv) Medical report giving the his- port at NATO or U.S. military airfields tory, diagnosis, clinical findings, re- or ports within NATO countries. sults of diagnostic tests and proce- (3) NATO liaison officers. In overseas dures, and all other pertinent medical areas, liaison officers from NATO information. Army Forces or members of a liaison (v) Availability or lack thereof of detachment from such a Force. professional skills and adequacy of fa- (c) Application for care. Military per- cilities for treatment in the member’s sonnel of NATO nations stationed in own country. the United States and their dependents (vi) Who will assume financial re- will present valid Uniformed Services sponsibility for costs of hospitalization Identification and Privilege Cards (DD and travel. 1173) when applying for care. For other (2) The Chief of Naval Operations eligible persons passing through the (OP–61) will, if appropriate, obtain United States on official business and State Department clearance and guid- those enumerated in paragraph (b) (2) ance and advise the Secretary of the and (3) of this section, orders or other Navy accordingly. The Commander, Naval Medical Command will furnish official identification may be accepted the Chief of Naval Operations informa- in lieu of the DD 1173. tion and recommendations relative to (d) Disposition. When it becomes nec- the medical aspects and the name of essary to return individuals to their the naval MTF with the capability to home country for medical reasons, provide required care. If approved, the make immediate notification to the Chief of Naval Operations will furnish, NATO unit sponsoring the member or through the chain of command, the dependent’s sponsor. Include all perti- commanding officer of the designated nent information regarding the phys- naval MTF authorization for admission ical and mental condition of the indi- of the beneficiary for treatment. vidual concerned. Following are details of agreements among the Armed § 728.42 NATO. Forces of NATO, CENTO, and SEATO (a) NATO SOFA nations. Belgium, Nations on procedures for disposition Canada, Denmark, Federal Republic of of allied country patients by DOD med- Germany, France, Greece, Iceland, ical installations. Italy, Luxembourg, the Netherlands, (1) Transfer of patients. (i) The pa- Norway, Portugal, Spain, Turkey, the tient’s medical welfare must be the United Kingdom, and the United paramount consideration. When decid- States. ing upon transfer of a patient, give due (b) Beneficiaries. The following per- consideration to any increased medical sonnel are beneficiaries under the con- hazard which the transfer might in- ditions set forth. volve. (1) Members of NATO military services (ii) Arrangements for disposition of and their dependents. Military personnel patients should be capable of being im- of NATO nations, who, in connection plemented by existing organizations. with their official duties, are stationed Consequently, no new establishment in or passing through the United should be required specially for dealing States, and their dependents residing with the transferring of allied casual- in the United States with the sponsor ties. may be provided care in naval MTFs to (iii) Transfer patients to their own the same extent and under the same national organization at the earliest conditions as comparable U.S. uni- practicable opportunity consistent formed services personnel and their de- with the observance of principles estab- pendents. Accordingly, the provisions lished in paragraph (d)(1) (i) and (ii) of
314
VerDate 25
this section and under any of the fol- situations only, Provided, the required lowing conditions: care cannot reasonably be obtained in (A) When a medical facility of their medical facilities of the host country own nation is within reasonable prox- or in facilities of the patient’s own imity of the facility of the holding na- country, or if such facilities are inad- tion. equate. Provide hospitalization only (B) When the patient is determined for acute medical and surgical condi- to require hospitalization in excess of tions, exclusive of nervous, mental, or 30 days. contagious diseases or those requiring (C) Where there is any question as to domiciliary care. Administer dental the ability of the patient to perform treatment only as an adjunct to au- duty upon release from the MTF. thorized inpatient care. Do not include (iv) The decision as to whether a pa- dental prostheses or orthodontia. tient, other than one requiring transfer under paragraph (d)(1)(iii) of this sec- § 728.43 Members of other foreign mili- tion, is fit for release from the MTF is tary services and their dependents. the responsibility of the facility’s com- (a) Foreign military service members. manding officer. For the purpose of § 728.43, members of (v) All clinical documents, to include foreign military services include only: x-rays, relating to the patient will ac- (1) Military personnel carried on the company such patients on transfer to current Diplomatic List (Blue) or on their own national organization. the List of Employees of Diplomatic (vi) The decision of suitability for Missions (White) published by the De- transfer and the arrangements for partment of State. transfer will be the responsibility of (2) Military personnel assigned or at- the holding nation. tached to United States military units (vii) Final transfer channels should for duty; military personnel on foreign be arranged by local liaison before ac- military supply missions accredited to tual movement. and recognized by one of the military (viii) Patients not suitable for trans- departments; and military personnel fer to their own national organization on duty in the United States at the in- must be dealt with for treatment and vitation of the Secretary of Defense or disposition purposes as patients of the one of the military departments. For holding nation until they are trans- the purpose of § 728.43, members of for- ferred, i.e., they will be dealth with in eign Security Assistance Training Pro- military hospitals, military medical grams (SATP) and Foreign Military installations, or in civilian hospitals Sales (FMS) are not included (see that are part of the military medical § 728.44). evacuation system of the holding na- (3) Foreign military personnel ac- tion. credited to joint United States defense (2) Classification of patients. Different boards or commissions when stationed channels for disposition will be re- in the United States. quired for the following two types of (4) Foreign military personnel cov- patients: ered in agreements entered into by the (i) Patients not requiring admission. Secretary of State, Secretary of De- Patients not requiring admission to an fense, or one of the military depart- MTF will be returned to their nearest ments to include, but not limited to, national unit under arrangements to be United Nations forces personnel of for- made locally. eign governments exclusive of NATO (ii) Patients admitted to medical instal- nations. lations. All such patients will be dealth (b) Care authorized in the United with per paragraph (d)(1) of this sec- States. Military personnel of foreign na- tion. tions not covered in § 728.42 and their (e) Care authorized outside the 48 con- dependents residing in the United tiguous United States. Major overseas States with the sponsor may be rou- commanders may authorize care in tinely provided only outpatient medi- naval MTFs subject to the availability cal care in naval MTFs on a reimburs- of space, facilities, and the capabilities able basis. Provided, the sponsor is in of the professional staff in emergency the United States in a status officially
315
VerDate 25
recognized by an agency of the Depart- example, unless orders state dif- ment of Defense. Dental care and hos- ferently, Kuwait has a civilian health pitalization for such members and plan to cover medical expenses of their their dependents are limited to emer- trainees; trainees from the Federal Re- gencies. All outpatient care and hos- public of Germany are personally re- pitalization in emergencies are subject sponsible for reimbursing for inpatient to reimbursement as outlined in care provided to their dependents; and § 728.46. all inpatient medical services for train- (c) Application for care. All personnel ees from France and their dependents covered by § 728.43 will present orders are to be borne by the individual train- or other official U.S. identification ee. verifying their status when applying (2) Elective and definitive surgery. The for care. overall policy with respect to elective (d) Disposition. When it becomes nec- and definitive surgery for Security As- essary to return individuals covered by sistance Training Program (SATP), § 728.43 to their home country for medi- Foreign Military Sales (FMS) person- cal reasons, make immediate notifica- nel and their dependents is that con- tion to the sponsoring unit of the pa- servatism will at all times prevail, ex- tient or patient’s sponsor with a copy cept bona fide emergency situations to the Chief of Naval Operations (OP– which might threaten the life or health 61). Include all pertinent information of an individual. Generally, elective regarding the physical and mental con- care is not authorized nor should be dition of the individual concerned and started. However, when a commanding full identification, diagnosis, progno- officer of a naval MTF considers such sis, estimated period of hospitalization, care necessary to the early resumption and recommended disposition. Addi- and completion of training, submit the tionally, the provisions of § 728.42(d) (1) complete facts to the Chief of Naval and (2) apply. Operations (OP–63) for approval. In- (e) Care authorized outside the 48 con- clude the patient’s name (sponsor’s tiguous United States. Major overseas also if patient is an ITO authorized de- commanders may authorize care in pendent), grade or rate, country of ori- naval MTFs subject to the availability gin, diagnosis, type of elective care of space, facilities, and the capabilities being sought, and prognosis. of the professional staff in emergency (3) Prior to entering training. Upon ar- situations only. Provided, the required rival of an SATP or FMS trainee in the care cannot reasonably be obtained in United States or at an overseas train- medical facilities of the host country ing site, it is discovered that the train- or in facilities of the patient’s own ee cannot qualify for training by rea- country, or if such facilities are inad- son of a physical or mental condition equate. Provide hospitalization only which will require a significant amount for acute medical and surgical condi- of treatment before entering or com- tions, exclusive of nervous, mental, or pleting training, return such trainees contagious diseases or those requiring to their home country immediately or domiciliary care. Administer dental as soon thereafter as travel permits. treatment only as an adjunct to au- (4) After entering training. When train- thorized inpatient care. Do not include ees require hospitalization or are dis- dental prostheses or orthodontia. abled after entering a course of train- ing, return them to their home country § 728.44 Members of security assist- as soon as practicable when, in the ance training programs, foreign opinion of the commanding officer of military sales, and their ITO au- the medical facility, hospitalization or thorized dependents. disability will prevent training for a (a) Policies—(1) Invitational travel or- period in excess of 30 days. Forward a ders screening. Prior to determining the copy of the patient’s clinical records levels of care authorized or the govern- with the patient. When a trainee is ac- ment or person responsible for pay- cepted for treatment that is not ex- ment for care rendered, carefully pected to exceed 30 days, notify the screen ITOs to detect variations appli- commanding officer of the training cable to certain foreign countries. For acvitity. Further, when a trainee is
316
VerDate 25
scheduled for consecutive training ses- care on a space available basis when fa- sions convening prior to the expected cilities and staffing permit except that: data of release from a naval MTF, (A) Prosthetic devices, hearing aids, make the next scheduled training ac- orthopedic footwear, and similar ad- tivity an information addressee. Upon juncts are not authorized. release from the MTF, direct such (B) Spectacles may be furnished when trainees to resume training. required to enable trainees to perform (b) Care authorized. Generally, all their assigned duties, Provided the re- SATP and FMS personnel and their quired spectacles are not available ITO authorized dependents are entitled through civilian sources. to care to the same extent. However, (C) Dental care is limited to emer- certain agreements require that they gency situations for the military mem- be charged differently and that certain ber and is not authorized for depend- exclusions apply. ents. (1) NATO members and their ITO au- (D) Dependents are not authorized thorized dependents—(i) Foreign military cooperative care under CHAMPUS. sales (FMS). Subject to reimbursement (ii) International military education per § 728.46, FMS personnel of NATO na- and training. Subject to reimbursement tions who are in the United States or for both inpatient and outpatient care at U.S. Armed Forces installations out- at the appropriate rates for members side the United States and their ac- and dependents, IMET personnel of companying ITO authorized dependents non-NATO nations may be provided will be provided medical and dental medical and dental care on a space care in naval MTFs to the same extent available basis when facilities and and under the same conditions as com- staffing permit except that: parable United States military person- (A) Prosthetic devices, hearing aids, nel and their dependents except that: orthopedic footwear, and similar ad- (A) Dependent dental care is not au- juncts are not authorized. thorized. (B) Dependents are not authorized co- (B) spectacles may be furnished when operative care under CHAMPUS. required to enable trainees to perform (ii) International military education their assigned duties, Provided the re- and training (IMET). Subject to reim- quired spectacles are not available bursement for inpatient care at the ap- through civilian sources. propriate IMET rate for members or at (C) Dental care is limited to emer- the full reimbursement rate for de- gency situations for military members pendents, IMET personnel of NATO na- and is not authorized for dependents. tions who are in the United States or (D) Dependents are not authorized at U.S. Armed Forces installations out- cooperative care under CHAMPUS. side the United States and accompany- (c) Application for care. Trainees and ing dependents will be provided medi- accompanying dependents will present cal and dental care in naval MTFs to official U.S. identification or orders the same extent and under the same verifying their status when applying conditions as comparable United for care. If any doubt exists as to the States military personnel and their de- extent of care authorized, ITOs should pendents except that: be screened (see paragraph (a)(1) of this (A) Dependent dental care is not au- section). thorized. (d) Notification. When trainees require (B) Dependents are not authorized co- hospitalization as a result of illness or operative care under CHAMPUS. injury prior to or after entering train- (2) Other foreign members and ITO au- ing, the training activity (the hospital thorized dependents—(i) Foreign military if patient has been admitted) will make sales. Subject to reimbursement by the a message report through the normal trainee or the trainee’s government for chain of command to the Chief of Naval both inpatient and outpatient care at Operations (OP–63) with information the full reimbursement rate, FMS per- copies to MAAG, COMNAV MEDCOM, sonnel of non-NATO nations and ITO Navy International Logistics Control authorized accompanying dependents Office (NAVIL CO), Unified Com- may be provided medical and dental mander, the affected office, and the
317
VerDate 25
foreign naval attache concerned. In- that inpatient medical care may be clude details of the incident, estimated provided in the United States without period of hospitalization, physical or cost to military personnel and their de- mental condition of the patient, and di- pendents from a foreign country if agnosis. For further amplification, see comparable care is made available to a OPNAVINST 4950.1H and comparable number of United States NAVCOMPTMAN 032103. military personnel in that foreign country.’’ § 728.45 Civilian components (employ- (b) Canadian agreement. On 3 Novem- ees of foreign military services) and ber 1986, the Department of National their dependents. Defence of Canada and DOD concluded (a) Care authorized. Beneficiaries cov- a comparable care agreement that cov- ered in this section are only authorized ers certain military personnel. The care in naval MTFs in the United agreement stipulates that: States and then only civilian humani- (1) DOD will, upon request, provide tarian emergency care on a reimburs- Canadian Forces members the same able basis (subpart J) rendered at in- range of medical and dental services stallations which have been designated under the same conditions and to the as remote by the Secretary of the same extent as such services are pro- Navy. Make arrangements to transfer vided comparable United States mili- such beneficiaries to a civilian facility tary personnel. Inasmuch as the agree- as soon as their condition permits. ment covers only certain military per- (b) Potential beneficiaries—(1) NATO. sonnel, the reimbursement provisions Civilian employee personnel (and their of Pub. L. 99–591 remain in effect for in- dependents residing with them) accom- patient care provided to Canadian dip- panying military personnel in lomatic personnel, Canadian depend- § 728.42(b)(1), Provided, the beneficiaries ents, and Canadian foreign military are not stateless persons nor nationals sales trainees who receive care in the of any state which is not a party to the United States. Further: North Atlantic Treaty, nor nationals (2) Permanently stationed Canadian of, nor ordinarily residents in the units with established strengths of United States. more than 150 personnel are expected (2) Others. Civilian personnel not cov- to have integral health care capability. ered in § 728.45(b)(1) (and their depend- Any health care services which mem- ents residing with them) accompanying bers of such units receive from the host personnel of foreign nations on duty in nation will be provided on a full reim- the United States at the invitation of bursement basis. Groups of larger than the Department of Defense or one of 150 personnel, which conduct collective the military departments. training in the United States, are ex- (c) Application for care. Personnel cov- pected to deploy with an organic unit ered by the provisions of § 728.45 will medical capability. Naval MTFs may present orders or other official U.S. be requested to provide services, be- identification verifying their status yond the capability of the organic unit, when applying for care. at full reimbursement rates. (c) Procedures. (1) Until otherwise di- § 728.46 Charges and collection. rected, naval MTFs in the 50 United (a) Policy. Pub. L. 99–591, section 9029, States will collect the full reimburse- contains provisions prohibiting the ex- ment rate (FRR) for inpatient care pro- penditure of appropriated funds vided to all foreign military personnel ‘‘. . . to provide medical care in the (except Canadians covered by the com- United States on an inpatient basis to parable care agreement in § 728.46(b), foreign military and diplomatic per- and military personnel connected with sonnel or their dependents unless the a Foreign Military Sales (FMS) case Department of Defense is reimbursed number), foreign diplomatic personnel, for the costs of providing such care: and to the dependents of both whether Provided, That reimbursements they are in the United States on offi- . . . shall be credited to the appropria- cial duty or for other reasons. tions against which charges have been (2) Subpart J contains procedures for made for providing such care, except the initiation of collection action when
318
VerDate 25
inpatient care is rendered to bene- denies medical benefits when such indi- ficiaries from NATO nations and when viduals do not complete the shorter of: either inpatient or outpatient care is (i) Twenty-four months of continuous rendered to all others enumerated in active duty, or this part. Chapter II, part 4 of (ii) The full period for which that NAVMED P–5020 is applicable to the person was called or ordered to active collection of and accounting for such duty. charges. (b) Inpatient control— Each VAB ad- mitted will be required to conform to Subpart F—Beneficiaries of Other regulations governing the internal ad- Federal Agencies ministration of the naval facility. Re- § 728.51 General provisions—the strictive or punitive measures, includ- ‘‘Economy Act.’’ ing disciplinary action or denial of privileges, will conform as nearly as The Economy Act, 31 U.S.C. 1535, gen- erally permits agency heads, or heads possible to VA instructions. of major organizational units of agen- (c) Resolution of problems— All prob- cies, to procure goods and services lems pertaining to VABs, including ad- from other agencies or within their mission, medical or other records, and own agency so long as funds for pro- all correspondence will be matters of curement are available, the order is in resolution between the commanding of- the best interest of the Government, ficer of the naval facility and the VA the source from which the goods or office of jurisdiction authorizing ad- services are ordered can produce them mission. Questions of policy and ad- or obtain them by contract, and the in- ministration which cannot be so re- ternal or inter-agency procurement is solved will be forwarded, through the more convenient, or less expensive, normal chain of command, to the Ad- than commercial procurement. Provi- ministrator of Veterans Affairs via sions of the Economy Act apply to re- COMNAVMEDCOM for resolution. quests from other Federal agencies for (d) Care in the United States—(1) Inpa- medical and dental care for bene- tient care. An eligible VAB may be ad- ficiaries for whom they are responsible. mitted to a naval MTF on presentation Consult specific provisions of the Act of a written authorization for admis- respecting financial and acounting lim- sion signed by an official of the VA of- itations and requirements. fice of jurisdiction. Neurological and § 728.52 Veterans Administration bene- certain neuropsychiatric patients with- ficiaries (VAB). out obvious evidence of psychosis and (a) Eligible beneficiaries— Those who not requiring restraints, and instances have served in the Armed Forces, have of suspected tuberculosis, may be ad- been separated under conditions other mitted for diagnosis. When diagnosed, than dishonorable, and have been de- promptly report instances of psychosis, termined by the Veterans Administra- psychoneurosis, and tuberculosis of tion (VA) to be eligible for care at VA present clinical significance to the VA expense. Prior to 7 September 1980, vet- office of jurisdiction with a request for erans status could be obtained by vir- transfer to a VA facility. tue of 1 day’s honorable service. The (i) Extent of care. Provide eligible following restrictions do not apply to VABs medical and surgical care, in- individuals who are discharged from cluding prostheses such as eyes and active duty because of a disability or limbs and appliances such as hearing who were discharged for reasons of aids, spectacles, or orthopedic appli- ‘‘early out’’ or hardship program under ances when required for the proper 10 U.S.C. 1171 and 1173. treatment of the condition upon which (1) For individuals with an original eligibility is based. enlistment in the military service after 7 September 1980, the law generally de- (ii) Disposition of emergency admission. nies benefits, including medical care. Notify the appropriate VA office of ju- (2) For individuals entering service risdiction by message or other expedi- after 16 October 1981, the law generally tious means within 72 hours after the
319
VerDate 25
date and hour of an emergency admis- ment and instructions for disposition sion of a potential VAB. Include a re- of the patient. quest for an authorization for admis- (3) Offices of jurisdiction. The follow- sion and emergency treatment. If VA ing activities are vested with respon- denies VAB status to such a person ad- sibility for issuing authorizations for mitted in an emergency, the provisions care and furnishing dispisition instruc- of § 728.81(a) are applicable. Once ad- tions for VABs in overseas naval MTFs: mitted in an emergency situation, (i) In the Trust Territory of the Pa- discharage a VAB promptly upon ter- cific (Micronesia), VA Office, Honolulu, mination of the emergency unless ar- Hawaii. rangements have been made with the (ii) In the Philippines, VA Regional VA office of jurisdiction: Office, Manila, Philippines. (A) For transfer to a VA treatment (iii) In Canada, Canadian Department facility if further treatment is re- of Veterans Affairs, Ottawa, Canada. quired. (iv) In all other foreign countries, (B) To retain the patient as a VAB in consular offices of U.S. embassies. the naval MTF. (f) Forms required. (1) Complete a VA (2) Outpatient care. Outpatient care, 10–10 (Application for Medical Benefits) including post hospitalization out- when potential VABs are admitted for patient care, may be provided upon au- emergency care without prior author- thorization by the VA office of jurisdic- ization. tion. When outpatient followup care is (2) Prepare a VA 10–10m (Medical Cer- requested, commanding officers are re- tificate and History) when care is ren- sponsible for determining whether ca- dered. All information required in the pabilities and workload permit provid- medical certificate thereon will be fur- ing such care. In an emergency, provide nished whether the admission is subse- necessary care. quently approved or disapproved by the (3) Physical examinations. Upon a de- VA office of jurisdiction. termination by a naval MTF command- (3) Since the completion of VA 10– ing officer that space, facilities, and 10m requires an examination of pa- capabilities exist, naval MTFs may tients, admissions which are dis- provide physical examinations when re- approved will be reported as medical quested by the VA for the purpose of examinations on DD 7A, Report of adjudicating claims for VA physical Treatment Furnished Pay Patients, disability compensation. If authorized Outpatient Treatment Furnished (part by the VA, patients may be admitted B) (See subpart J). when the examination requires more (4) Prepare and submit a DD 7 (Re- than 1 day. port of Treatment Furnished Pay Pa- (4) Dental care. Limit dental treat- tients, Hospitalization Furnished (part ment to inpatients who require serv- A)) on all VABs and potential VABs ad- ices adjunctive to medical or surgical mitted (see subpart J). conditions for which hospitalized. (5) Complete an SF 502 (Narrative (e) Care outside the United States—(1) Summary) or SF 539 (Abbreviated Clin- Eligible beneficiaries. Beneficiaries de- ical Record), as appropriate, when a scribed in paragraph (a) of this section VAB or potential VAB is discharged or who are citizens of the United States otherwise released. When an interim and residing or sojourning abroad may, report of hospitalization is requested within the capabilities of the facility by the VA office of jurisdiction, it may as determined by the commanding offi- be prepared on an SF 502. cer, be provided inpatient and out- patient care upon presentation of an § 728.53 Department of Labor, Office of authorization from the appropriate VA Workers’ Compensation Programs office of jurisdiction listed in para- (OWCP) beneficiaries. graph (e)(3) of this section. (a) Potential beneficiaries. The follow- (2) Emergency care. Overseas naval ing may be beneficiaries of one of the MTFs furnishing emergency care to po- programs sponsored by the Office of tential VABs will promptly notify the Workers’ Compensation Programs appropriate VA office of jurisdiction (OWC) under the conditions set forth. and request authorization for treat- They are not beneficiaries of OWCP
320
VerDate 25
until authorized as such by the appro- the direction and written authority of priate district officer of OWCP. How- the Air Force. ever, they may be carried as potential (4) Former Peace Corps enrollees for beneficiaries pending OWCP determina- injury or disease which is the proxi- tion of eligibility. DOD civilian em- mate result of their former employ- ployees provided medical services ment with the Peace Corps or which under a Defense or service health pro- was sustained or contracted while lo- gram are not included under this au- cated with the Peace Corps outside the thority (see subpart G). United States and its territories. (1) Members and applicants for mem- (5) Former Job Crops enrollees for in- bership in the Reserve Officers’ Train- jury or disease which is the proximate ing Corps of the Navy, Army, and Air result of employment with the Job Force, provided the condition neces- Corps. sitating treatment was incurred in line (6) Former VISTA (Volunteers in of duty during an off-campus training Service to America) enrollees for in- regimen. Such care is authorized for in- jury or disease which is the proximate jury (a disease or illness which is the result of employment with VISTA. proximate result of performance of (7) Military Sealift Command (MSC) training is considered an injury) in- civilian marine personnel curred while engaged in: (CIVMARPERS or CIVMARS) (includ- (i) Training. ing temporary employees, intermittent (ii) Flight instructions. employees, and employees with less (iii) Travel to or from training or flight instructions. than 1 year’s service) are entitled to (2) The following employees of the occupationally related care at the ex- Government of the United States, re- pense of OWCP. CIVMARS are in a gardless of nationality or place of crew status only after reporting to work, are entitled to receive care as their assigned ship. They are in a trav- outlined in paragraph (e) of this sec- el status from crewing point to ship tion for work incurred traumatic inju- and return. While in a travel status, ries at the expense of OWCP. (In addi- they are entitled to the same health tion to injury by accident, a disease or care benefits as other Federal civil illness which is the proximate result of service employees in a travel status (5 performance of employment duties is U.S.C. 8101). CIVMARS presenting for considered an injury.) This category in- treatment with a properly completed cludes but is not limited to: CA–16, Request for Examination and/or (i) Civilian student employees in Treatment, will: training at Navy and Marine Corps fa- (i) Enter the naval MTF’s system cilities. through the occupational medicine (ii) Civilian seamen in the service of service. vessels operated by the Department of (ii) Be treated for any injury or dis- the Army (see paragraph (a)(7) of this ease proximately caused by their em- section and § 728.80(c)(2) for civilian ployment. Although the actual deter- Military Sealift Command (MSC) per- mination of whether an illness or in- sonnel). jury is occupationally related is a func- (iii) All civilian employees of the tion of OWCP, determinations are Government except nonappropriated- based on the required injury report fund-activity employees. Nonappro- along with the treatment record from priate fund employees may be covered the attending physician. Therefore, under the Longshore and Harbor Work- when doubt exists as to the relation- ers’ Compensation Act (contact cog- ship of the condition to the potential nizant district office of OWCP). patient’s employment, the physician (3) Civilian members of the Civil Air should report an unbiased medical con- Patrol (except Civil Air Patrol Cadets) clusion and the medical rationale for injury or disease which is the proxi- therefor, indicating the conditions mate result of active service or travel which are responsible for the claim- to and from such service, rendered in ant’s disability. As a general rule, the performance or support of operational following may be initially considered missions of the Civil Air Patrol under as occupationally related, however, it
321
VerDate 25
should be emphasized that OWCP is the tion, unless otherwise stipulated in final approval authority: this section, upon presentation of a (A) Any injury or illness occurring as properly prepared and signed author- a direct result of employment. May ization from CA–16 (Request for Exam- occur on a ship, at a Government in- ination and/or Treatment). District of- stallation ashore, or in an aircraft fices of OWCP will honor these author- while performing a requirement of em- izations for 60 days unless written no- ployment. tice of termination of authorization is (B) Any injury or illness which be- given earlier. Whereas the CA–16 is comes manifest while away from work used primarily for traumatic injuries, (on leave or liberty) while in a crew it may also be used to authorize exam- status or travel status as long as the ination and treatment for disease or condition may be directly related to illness provided the affected agency job activities or to exposures incident has obtained prior permission from the to travel to ship assignment. cognizant district office of OWCP. If (C) Required immunizations. the condition for which treatment is (D) Required physical examinations. requested appears related to employ- (E) Periodic medical surveillance ment, treatment of beneficiaries in screening examinations for DOD occu- paragraph (a) (1) through (7) of this sec- pational and industrial health pro- tion may be initiated without presen- grams, i.e., asbestos medical surveil- tation of a CA–16. Patients provided lance, hearing conservation, etc. treatment without a CA–16 may be car- (iii) Be referred to a non-Federal ried as OWCP beneficiaries from the source of care where back-to-work care time of initial treatment, provided the may be provided at the CIVMAR’s ex- appropriate district office of OWCP is pense after, if necessary, the imme- notified and requested to submit a CA– diate emergency is alleviated when a 16 within 48 hours giving authorization reasonable determination can be made as of the date of actual treatment. that the injury or illness is not occupa- OWCP will not be liable for payment of tionally related. bills for unauthorized treatment. Post (A) Per 5 U.S.C. 7901(c)(3), the health hospitalization care following author- service program for Federal civilian ized inpatient care does not require an employees is limited to referral of em- additional authorization. First aid ployees, upon their request, to private treatment rendered civilian employees sources of care. does not require an authorization form (B) Long term extended care of (c) Disallowance by OWCP. When chronic illnesses such as hypertension, OWCP determines that any claim diabetes, etc., is not authorized in should be disallowed, OWCP will advise naval MTFs at the expense of OWCP the naval facility rendering care that nor at the CIVMAR’s personal expense. no further treatment should be ren- (C) Patients who cannot be referred, dered at OWCP expense. The patient because of medical reasons or because ceases to be an OWCP beneficiary as of non-Federal sources are not available the date of receipt of the notice of dis- or available but inadequate, may be re- allowance by the naval MTF and the tained in naval MTFs at the expense of patient will be so notified. Any treat- the CIVMAR or of his or her private in- ment subsequent to the date of receipt surance until transfer becomes pos- of the notice of disallowance will be at sible. Although the means of access to the personal expense of the patient (see the naval MTF may have been through § 728.81(a)). the occupational medicine service, re- (d) Authorization for transfer. Prior tention in the naval MTF is on a civil- approval of OWCP is required before a ian humanitarian basis. This is also ap- transfer can be effected, except in an plicable when OWCP disallows a emergency or when immediate treat- CIVMAR’s claim (see paragraph (c) of ment is deemed more appropriate in this section). another Federal facility. When transfer (b) Authorization required. Personnel is effected without approval, the trans- in paragraph (a) (1) through (6) may be ferring facility will immediately re- rendered inpatient and outpatient care quest such authorization from the ap- as outlined in paragraph (e) of this sec- propriate district office of OWCP.
322
VerDate 25
When authorized by OWCP, evacuation mat in lieu of CA–20. When submitted to the United States can be effected per to OWCP, the physician’s report will OPNAVINST 4630.25B. Medical records include: and a CA–16 will accompany such pa- (i) History. tients. (ii) Physical findings. (e) Care authorized—(1) Inpatient care. (iii) Laboratory findings. Medical and surgical care necessary for (iv) Abstract of hospital records. the proper treatment of the condition (v) Diagnosis for conditions due to in- upon which eligibility is based. Spe- jury and not due to injury. cific OWCP authorization is required (vi) Rationalized medical opinion for before major surgical procedures can the physician’s belief that the illness be performed unless the urgency of the or disease treated was causally related situation is such that time does not to a specific condition or set of condi- permit obtaining said authorization. tions to which the claimant was sub- All necessary prostheses, hearing aids, jected. spectacles, and orthopedic appliances (vii) Condition on discharge with will be furnished when required for opinion as to degree of impairment due proper treatment of the condition upon to injury, if any. which eligibility is based. Upon specific (3) Complete and submit, per subpart authorization, damaged or destroyed J, a DD 7 (Report of Treatment Fur- medical braces, artificial limbs, and nished Pay Patients, Hospitalization other orthopedic and prosthetic devices Furnished, part A) or DD 7A (Report of will be replaced or repaired, except Treatment Furnished Pay Patients, that eyeglasses and hearing aids will Outpatient Treatment, part B) when not be replaced or repaired unless their outpatient or inpatient care is ren- damage or destruction is incidental to dered to any OWCP beneficiary. a personal injury requiring medical services. § 728.54 U.S. Public Health Service (2) Outpatient care. Complete medical (USPHS), other than members of and surgical care not requiring hos- the uniformed services. pitalization, and posthospitalization (a) Potential beneficiaries. The follow- services following authorized inpatient ing may be beneficiaries of the USPHS care in a naval MTF for the proper for care in naval MTFs upon submis- treatment of the condition upon which sion of the necessary form from appro- eligibility is based. priate officials as outlined in para- (3) Dental care. Limit dental treat- graph (b) of this section. ment to emergencies and that care nec- (1) Within and outside the United essary as an adjunct to inpatient hos- States. Any individuals the USPHS may pital care authorized in advance. Such determine to be eligible for care on an care will not include dental prostheses, interagency reimbursable basis. unless specifically authorized, nor or- (2) Within the 48 Contiguous United thodontic treatment. States and the District of Columbia. (f) Reports and records. (1) Copies of American Indians, Alaska Natives, Es- medical records will accompany OWCP kimos, and Aleuts. patients being transferred from one (3) In Alaska. American Indians, Eski- medical treatment facility to another. mos, and Aleuts. Records accompanying OWCP patients (b) Authorization required—(1) Normal to a debarkation hospital will be the circumstances. An American Indian or same as for military personnel and will Alaska Native may be rendered inpa- clearly identify the patient as an tient care upon presentation of form OWCP beneficiary. HRSA 43 (Contract Health Service Pur- (2) Forward a CA–20 (Attending Phy- chase Order for Hospital Services Ren- sician’s Report) to the appropriate dis- dered) or HRSA form 64 (Purchase/De- trict office of OWCP on discharge of livery Order for Contract Health Serv- the patient unless hospitalization ex- ices Other Than Hospital Inpatient or ceeds 1 month. In such instances, a re- Dental). Either form must be signed by port will be submitted every 30 days. an appropriate Indian Health Service When extensive hospitalization is re- or Alaska Native Health Service area/ quired, use an SF 502 or a narrative for- program official.
323
VerDate 25
(2) Emergencies. In an emergency, care for central collection of the cost of may be rendered upon written request care provided. of patient’s commanding officer or su- (a) Federal Bureau of Investigation. In- perior officer, or the patient if neither vestigative employees of the Federal of the above is available. When emer- Bureau of Investigation (FBI) and ap- gency care is rendered without prior plicants for employment as special authorization, the facility rendering agents with the FBI may be provided: care must notify the service unit direc- (1) Immunizations. tor of the patient’s home reservation (2) Physical examinations and hos- within 72 hours from the time such pitalization when required to deter- care is rendered unless extenuating cir- mine physical fitness. Use this period cumstances preclude prompt notifica- of hospitalization for diagnostic pur- tion. poses only. Do not correct disqualify- (c) Care authorized. Unless limited by ing defects. the provisions stipulated in paragraph (b) U.S. Marshals. U.S. Marshals may (a) of this section and subject to the receive physical examinations and hos- provisions of § 728.3, the following care pitalizations when required to deter- may be rendered, when requested, to mine physical fitness. Use this period all beneficiaries enumerated in para- of hospitalization for diagnostic pur- graph (a) of this section. poses only. Do not correct disqualify- (1) Inpatient care. Necessary medical ing defects. and surgical care. (c) Claimants against the United States. (2) Outpatient care. Necessary medical Claimants whose suits or claims and surgical care. against the United States are being de- (3) Dental care. (i) Limit dental care fended by the Department of Justice in the United States, its territories, may be furnished physical examina- possessions, and the Commonwealth of tions to determine the extent and na- Puerto Rico to emergencies for the re- ture of the injuries or disabilities being lief of pain or acute conditions and claimed. Hospitalization is authorized that necessary as an adjunct to inpa- for proper conduct of the examination. tient hospital care. Prosthetic dental Upon completion, forward the report of appliances and permanent restorations the examination promptly to the U.S. are not authorized. Attorney involved. (ii) In overseas areas, dental care is authorized to the extent necessary § 728.56 Treasury Department bene- pending the patient’s return to the ficiaries. United States, its territories, posses- (a) Potential beneficiaries. The follow- sions, or the Commonwealth of Puerto ing may be beneficiaries of the Treas- Rico. ury Department and may be rendered (d) Report. Complete and submit, per care as set forth below. subpart J, a DD 7 (Report of Treatment (1) Secret Service Special Agents and Furnished Pay Patients, Hospitaliza- support personnel. tion Furnished, part A) or a DD 7A (Re- (2) Secret Service Agents providing port of Treatment Furnished Pay Pa- protection to certain individuals. tients, Outpatient Treatment, part B) (3) Persons being provided protection when outpatient or inpatient care is by the Secret Service. rendered. (4) Agents of the U.S. Customs Serv- ice. § 728.55 Department of Justice bene- (5) Prisoners (detainees) of the U.S. ficiaries. Customs Service. Upon presentation of a letter of au- (b) Care authorized. (1) Secret Service thorization that includes disposition of Special Agents may be provided rou- SF 88 (Report of Medical Examination), tine annual physical examinations SF 93 (Report of Medical History), and upon request and presentation of a let- address for submission of claim, the ter of authorization. Conduct and following personnel may be furnished record examinations in the same man- requested care as beneficiaries of the ner as routine examinations rendered Department of Justice. See subpart J naval officers except that they may be on completing and submitting forms conducted only on an outpatient basis.
324
VerDate 25
If hospitalization is considered desir- § 728.57 Department of State and asso- able in connection with an examina- ciated agencies. tion, patient administration depart- Eligibility for care under the provi- ment personnel will contact the United sions of this section will be determined States Secret Service at (202) 535–5641 by the Department of State, Office of at the address in paragraph (c) of this Medical Services. section. Enter a statement, attesting to the fact that hospitalization is de- (a) Beneficiaries. Officers and employ- sirable, in item 73 or 75 of the SF 88, as ees of the following agencies, their de- appropriate, before forwarding to the pendents, and applicants for appoint- United States Secret Service as di- ment to such agencies are authorized rected by the letter of authorization. inpatient and outpatient medical care (2) Secret Service Agents providing as set forth below in addition to that protection to certain individuals and care that may be authorized elsewhere those persons being provided such pro- within this part (i.e., §728.53, § 728.55, tection may be rendered all required § 728.56, and § 728.58). Limit dental care medical services including hospitaliza- to that delineated in paragraph (b)(6) of tion subject to the provisions of § 728.3. this section. (3) Agents of the U.S. Customs Serv- (1) Department of State-U.S.Arms ice and their prisoners (detainees) may Control and Disarmament Agency and be provided emergency medical treat- the Office of International Conferences. ment and evacuation services to the (2) U.S. Agency for International De- nearest medical facility (military or ci- velopment. vilian) in those remote areas of the (3) International Communications United States where no other such Agency. services are available. Limit evacu- (4) ACTION—Peace Corps Staff. ation to the continental United States (5) Department of Agriculture—For- and do not cross borders. The Navy’s responsibility for medical care of such eign Agriculture Service. prisoners terminates once the medical (6) Department of Commerce—Bureau emergency has been resolved. Guarding of Public Roads. of prisoners, while they or their cap- (7) Department of Interior—Bureau of tors are receiving treatment at naval Reclamation and the U.S. Geological MTFs, remains the responsibility of Survey. the U.S. Customs Service or other ap- (8) Department of Transportation— propriate Federal (nonmilitary) law en- Federal Aviation Administration and forcement agencies. the Federal Highway Administration. (c) Reports and records. (1) When ex- (9) Department of Justice—Drug En- aminations are rendered to Secret forcement Agency. Service Special Agents and support (10) Department of Treasury—U.S. personnel, forward one copy of the SF Customs, U.S. Secret Service, Office of 88, one copy of the SF 93, and one copy International Affairs (OIA), U.S.— of any forms provided with the letter of Saudi Arabian Joint Commission for authorization to United States Secret Economic Cooperation (JECOR), and Service, Administrative Operations Di- the Internal Revenue Service. vision, Safety and Health Branch, 1800 (11) National Aeronautics and Space G Street, NW., Room 845, Washington, Administration. DC 20223 or as otherwise directed by the letter of authorization. Provide an (12) Library of Congress. information copy to the Deputy Comp- (13) Beneficiaries of such other agen- troller of the Navy. cies as may be included in the Depart- (2) Complete and submit, per subpart ment of State Medical Program. J, a DD 7 (Report of Treatment Fur- (b) Care authorized—(1) General. The nished Pay Patients, Hospitalization Foreign Service Act of 1946, as amend- Furnished, part A) or DD 7A (Report of ed, authorizes care delineated in this Treatment Furnished Pay Patients, section. Subject to the restrictions and Outpatient Treatment, part B) when priorities of § 728.3 and the restrictions outpatient or inpatient care is ren- of this section, care may be rendered at dered. the expense of the Department of State
325
VerDate 25
or one of the agencies listed in para- ness or injury incurred while outside graph (a) of this section. The law al- the United States. lows for payment when care is fur- (4) Physical examinations. The Sec- nished for an illness or injury which re- retary of State is authorized to provide sults in hospitalization or equal treat- for comprehensive physical examina- ment. Outpatient care is only author- tions, including dental examinations ized as an adjunct to hospitalization. and other specific testing, of applicants (2) Overseas. (i) When, in the opinion for employment and for officers and of the principal or administrative offi- employees of the Foreign Service who cer of an overseas post of the Depart- are U.S. citizens and for their depend- ment of State, an individual meets the ents, including examinations necessary conditions of eligibility, the post will to establish disability or incapacity for furnish authorization to the naval retirement purposes. An authorization MTF for care at the expense of the De- will be executed by an appropriate De- partment of State or one of the agen- partment of State official and fur- cies listed in paragraph (a) of this sec- nished in duplicate to the naval MTF, tion. listing the type of examination re- (ii) Should the Department of State quired and stating that the individual official determine that the illness or is entitled to services at the expense of injury does not meet the conditions of the Department of State. Furnish re- eligibility for care at the expense of ports per the letter of authorization. one of the agencies, all care provided (5) Immunizations. Inoculations and will be at the expense of the patient or vaccinations are authorized for offi- patient’s sponsor and charged at the cers, employees, and their dependents full reimbursement rate. upon written authorization from an ap- (3) In the United States. (i) Care is not propriate Department of State official. authorized for an injury or illness in- This authorization, in duplicate, will curred in the United States. Authoriza- include the type of inoculation or vac- tions and other arrangements for care cination required and will state that in the United States for individuals in- the individual is entitled to services at curring injury or illness outside the the expense of the Department of United States will be provided by the State. Furnish reports per the letter of Deputy Assistant Secretary for Medi- authorization. cal Services, Department of State, using appropriate authorization (6) Dental care. Limit dental care to form(s). When personnel are admitted emergencies for the relief of pain or in an emergency without prior author- acute conditions, or dental conditions ization, the commanding officer of the as an adjunct to inpatient care. Do not admitting naval MTF will immediately provide prosthetic dental appliances. request authorization from the Deputy (c) Evacuation to the United States. Assistant Secretary for Medical Serv- Should a beneficiary in an overseas ices. naval MTF require prolonged hos- (ii) The extent of care furnished in pitalization, the commanding officer of the United States, to individuals in the overseas facility will report the re- paragraph (a) of this section who are quirement to the nearest Department evacuated to the United States for of State principal or administrative of- medical reasons, will be comparable in ficer and request authority to return all respects to that which is authorized the patient to the United States. Re- or prescribed for these individuals out- lease dependents who decline evacu- side the United States. When deter- ation to the custody of their sponsor. mined appropriate by the Deputy As- Aeromedical evacuation may be used sistant Secretary for Medical Services, per OPNAVINST 4630.25B. Travel of an officers and employees and their ac- attendant or attendants is authorized companying dependents who have re- at Department of State expense when turned to the United States for non- the patient is too ill or too young to medical reasons may be furnished med- travel unattended. ical care at the expense of one of the (d) Report. Complete and submit, per above agencies for treatment of an ill- subpart J, a DD 7 (Report of Treatment
326
VerDate 25
Furnished Pay Patients, Hospitaliza- quests, report such examinations of tion Furnished, part A) or DD 7A (Re- Peace Corps volunteers on SF–88 and port of Treatment Furnished Pay Pa- SF–93. Include: tients, Outpatient Treatment, part B) (A) Medical history and systemic re- when outpatient or inpatient care is view. rendered. (B) Chest x-ray with interpretation. (C) Complete urinalysis, serology, § 728.58 Federal Aviation Agency and blood type. (FAA) beneficiaries. (D) Pelvic examination and Pap (a) Beneficiaries. Air Traffic Control smear for all female volunteers. Specialists (ATCS) of the FAA when (E) Hematocrit or hemoglobin for all appropriate authorization has been fur- females and for all males over 40 years nished by the FAA regional representa- of age. tive. (F) Electrocardiogram for all volun- (b) Authorization. Written authoriza- teers over 40 years of age. tion from an FAA Regional Flight Sur- (2) Immunizations. Immunizations, as geon is required and will include in- requested, may be provided all bene- structions for forwarding the results of ficiaries listed in paragraph (a) of this services rendered. section. (c) Care authorized. Subject to the (3) Medical care. Both inpatient and provisions of § 728.3, authorized person- outpatient care may be provided volun- nel may be rendered chest x-rays, elec- teers for illnesses or injuries occurring trocardiograms, basic blood chem- during their period of service which in- istries, and audiograms, without inter- cludes all periods of training. Depend- pretation in support of the medical sur- ents of volunteers specified in para- veillance program for ATCS personnel graph (a)(3) of this section are author- established by the FAA. ized care to the same extent as their (d) Report. Complete and submit, per sponsor. subpart J, a DD 7A (Report of Treat- (4) Dental care. Limit dental care to ment Furnished Pay Patients, Out- emergencies. Render only that care es- patient Treatment, part B) outpatient sential to relieve pain or prevent immi- care is rendered. nent loss of teeth. All beneficiaries seeking dental care will be requested, § 728.59 Peace Corps beneficiaries. whenever possible, to furnish advanced (a) Potential beneficiaries. (1) Appli- authorization. cants for the Peace Corps. (c) Care authorized outside the United (2) Peace Corps Volunteers. States—(1) Physical examinations. Ter- (3) Minor children of a Peace Corps mination physical examinations may volunteer living with the volunteer. be provided volunteers and eligible de- (b) Care authorized in the United pendents of volunteers. In most in- States. Upon written request of a Peace stances, Peace Corps staff physicians Corps official, stating care to be pro- will provide these examinations; how- vided and disposition of reports, the ever, help may be required of naval following may be provided subject to MTFs for ancillary services. the provisions of § 728.3. (2) Immunizations. When requested, (1) Physical examinations. Physical ex- immunizations may be provided all aminations are authorized on an out- beneficiaries listed in paragraph (a) of patient basis only. Except for interpre- this section. tation of x-rays, make no assessment (3) Medical care. When requested in of the physical qualifications of writing by a representative or physi- examinees. cian of a Peace Corps foreign service (i) Preselection physical examination post, volunteers, eligible dependents of may be provided applicants (volun- volunteers, and trainees of the Peace teers) for the Peace Corps. Corps may be provided necessary medi- (ii) Separation or other special phys- cal care at Peace Corps expense. When ical examinations may be provided vol- emergency treatment is rendered with- unteers and their dependents as listed out prior approval, forward a request in paragraph (a)(3) of this section. Un- to the Peace Corps foreign service post less otherwise prescribed in written re- as soon as possible.
327
VerDate 25
(4) Dental care. Limit dental care to providing needed services. However, emergencies. Render only that care es- upon presentation of an appropriate sential to relieve pain or prevent immi- authorization, the following services nent loss of teeth. All beneficiaries may be rendered subject to the provi- seeking dental care will be requested, sions of § 728.3. whenever possible, to furnish advanced (1) Job Corps enrollees are authorized authorization. emergency medical care upon presen- (5) Evacuation to the United States. tation of their Job Corps Identification When a beneficiary in an overseas Card; however, the corpsmember’s Job naval MTF requires prolonged hos- Corps center should be notified imme- pitalization, the commanding officer of diately. the overseas facility will report the re- (2) Job Corps applicants may be pro- quirement to the nearest Peace Corps vided preenrollment physical examina- foreign service post and request au- tions and immunizations on an out- thorization to return the patient to the patient basis only. United States. Releases custody of de- (3) Job Corps enrollees, VISTA train- pendents to their sponsor when evacu- ees, and VISTA volunteers are author- ation is declined. Aeromedical evacu- ized: ation may be used per OPNAVINST (i) Outpatient medical examinations, 4630.25B. Travel of attendant(s) is au- outpatient treatment, and immuniza- thorized when the patient is too ill or tions. too young to travel unattended. (ii) Inpatient care for medical and (d) Report. Complete and submit, per surgical conditions which, in the opin- subpart J, a DD 7 (Report of Treatment ion of the attending physician, will Furnished Pay Patients, Hospitaliza- benefit from definitive care within a tion Furnished, part A) or DD 7A (Re- reasonable period of time. When found port of Treatment Furnished Pay Pa- probable that a patient will require tients, Outpatient Treatment, part B) hospitalization in excess of 45 days, no- when outpatient or inpatient care is tify the Commander, Naval Medical rendered. Command (MEDCOM–33) by the most § 728.60 Job Corps and Volunteers in expeditious means. Service to America (VISTA) bene- (iii) Limit dental care to emer- ficiaries. gencies. Render only that care essen- (a) Beneficiaries. Job Corps and tial to relieve pain or prevent immi- VISTA enrollees and Job Corps appli- nent loss of teeth. Beneficiaries seek- cants may be provided services as set ing dental care will be requested to fur- forth. For former members, see § 728.53. nish, whenever possible, advanced au- (b) Authorization required—(1) Job thorization. Corps enrollees. Presentation of a Job (d) Report. Complete and submit, per Corps Identification Card after ap- subpart J, a DD 7 (Report of Treatment pointment has been made by the corps- Furnished Pay Patients, Hospitaliza- member’s Job Corps center. tion Furnished, part A) or DD 7A (Re- (2) Job Corps applicants. Presentation port of Treatment Furnished Pay Pa- of a letter from a screening agency tients, Outpatient Treatment, part B) (e.g., State Employment Service) after when outpatient or inpatient care is an appointment has been made by that rendered. agency. (3) VISTA Volunteers and VISTA § 728.61 Medicare beneficiaries. Trainees. A ‘‘Blue-Cross and Blue (a) Care authorized. Emergency hos- Shield Identification Card’’ is issued to pitalization and other emergency serv- such personnel as identification. Each ices are authorized for beneficiaries of card has a VISTA identification num- the Social Security Health Insurance ber which will be used on all records Program for the Aged and Disabled and correspondence. (Medicare) who reside in the 50 United (c) Care authorized. Normally, medi- States and the District of Columbia, cal services are provided only when ci- Guam, Puerto Rico, the Virgin Islands, vilian of VA facilities are not avail- American Samoa, and the Northern able. or if available, are incapable of Mariana Islands. Such care in naval
328
VerDate 25
MTFs may be rendered when emer- (1) Former women members of the gency services, as defined in § 728.61(b), Army, Air Force, Navy, and Marine are necessary. Corps. (b) Emergency services. Services pro- (2) On or after 12 August 1985, former vided in a hospital emergency room women members of the Commissioned after the sudden onset of a medical Corps of the United States Public condition manifesting itself by acute Health Service (USPHS) and the Na- symptoms of sufficient severity (in- tional Oceanic and Atmospheric Ad- cluding severe pain) such that the ab- ministration (NOAA). sence of immediate medical attention (b) Care authorized. (1) Former women could reasonably be expected to result members may be rendered medical and in: surgical care in naval MTFs incident to (1) Placing the patient’s health in se- that pregnancy, prenatal care, hos- rious jeopardy. pitalization, postnatal care, and, when requirements of SECNAVINST 6300.2A (2) Serious impairment to bodily are met, abortions. Limit postnatal functions of serious dysfunction of any care to 6 weeks following delivery. Do bodily organ or part. not promise civilian sources under any (c) General provisions—(1) Limitations. circumstances for either the mother or Benefit payments for emergency serv- the infant as such care is not author- ices under Medicare can be made for ized. only that period of time during which (2) Treatment of the newborn infant the emergency exists. Therefore, when in USMTFs includes care, both inpa- the emergency is terminated and it is tient and outpatient, only during the permissible from a medical standpoint, first 6 weeks (42 days) following deliv- discharge or transfer the patient to a ery. If the newborn infant requires care facility that participates in Medicare. beyond the 6-weeks postnatal period, (2) Notification. Notify the nearest of- the mother or other responsible family fice of the Social Security Administra- member must make arrangements for tion as soon as possible when a Medi- disposition to private, State, welfare, care beneficiary is rendered treatment. or another Federal facility. (d) Report. Complete and submit, per (c) Application for care. In making ap- subpart J, a DD 7 (Report of Treatment plication for care authorized by this Furnished Pay Patients, Hospitaliza- section, former women members should tion Furnished, part A) or DD 7A (Re- apply either in person or in writing to port of Treatment Furnished Pay Pa- the Armed Forces inpatient MTF near- tients, Outpatient Treatment, part B) est their home and present either their when outpatient or inpatient care is DD 214 (Armed Forces of the United rendered. States Report of Transfer or Discharge) or DD 256A (Honorable Discharge Cer- tificate) as proof of eligibility for re- Subpart G—Other Persons quested care. In areas with more than one Armed Forces MTF available and § 728.71 Ex-service maternity care. capable of providing required care, ap- (a) Eligible beneficiaries. After separa- plication should be made to the MTF of tion from the service under honorable the service from which separated, as conditions because of pregnancy, or applicable. Disengagement in such separated from the service under hon- areas to MTFs of other services may be orable conditions and found to have made only when space is not available been pregnant at the time of separa- or capability does not exist in the MTF tion, the following former members of the services from which the individ- and their newborn infant(s) may be ual was separated. provided care as set forth below. The (d) Charges and collection. Charges rendering of this care is subject to the and reimbursement procedures for care provisions of § 728.3. When certified by rendered to beneficiaries in paragraph medical authorities that the pregnancy (a)(2) of this section are the same as existed prior to entry into service prescribed by current regulations for (EPTE), maternity benefits are not au- active Coast Guard, USPHS, and NOAA thorized. members.
329
VerDate 25
§ 728.72 Applicants for enrollment in § 728.75 Applicants for cadetship at the Senior Reserve Officers’ Train- service academies and applicants ing Program. for the Uniformed Services Univer- When properly authorized, designated sity of Health Sciences (USUHS). applicants (including applicants for en- (a) Upon presentation of a letter of rollment in the 2-year program and authorization from the Department of Military Science II enrollees applying Defense Medical Examination Review for Military Science III) may be fur- Board (DODMERB), applicants for ca- nished medical examinations at naval detship at Service Academies (Navy, MTFs including hospitalization nec- Army, Air Force, Coast Guard, and essary for the proper conduct thereof. Merchant Marine) and applicants for Medical care, including hospitaliza- the Uniformed Services University of tion, is authorized for diseases con- Health Sciences (USUHS) will be fur- tracted or injuries incurred in line of nished medical examinations at facili- duty while at or traveling to or from a ties designated by the DODMERB. Hos- military installation for the purpose of pitalization is authorized when quali- undergoing medical or other examina- fications for service cannot otherwise tions or for visits of observation. be determined. Use the hospitalization period for diagnostic purposes only, § 728.73 Applicants for enlistment or and not to correct disqualifying or reenlistment in the Armed Forces, other defects. Perform examinations and applicants for enlistment in the and make disposition of completed reserve components. forms per BUMEDINST 6120.3M. (a) Upon referral by a commander of (b) Applicants who suffer injury or a Military Enlistment Processing Sta- acute illness while awaiting or under- tion (MEPS), applicants will be fur- going processing at Navy and Marine nished necessary medical examina- Corps facilities or at MEPS may be fur- tions, including hospitalization when nished emergency medical and dental qualifications for service cannot other- care, including emergency hospitaliza- wise be determined. Use the hos- tion, for that injury or illness. pitalization period only for diagnostic purposes. Do not correct disqualifying § 728.76 Naval Home residents. defects. Provide necessary medical and dental (b) Applicants who suffer injury or care, both inpatient and outpatient, to acute illness while awaiting or under- residents of the Naval Home when re- going processing at Navy and Marine quested by the Governor of the Home. Corps facilities or MEPS may be fur- In an emergency, care may be rendered nished emergency medical and dental without prior approval of the Gov- care, including emergency hospitaliza- ernor; however, the Governor of the tion, for that injury or illness. Home should be contacted immediately § 728.74 Applicants for appointment in and requested to furnish authorization. the regular Navy or Marine Corps and reserve components, including § 728.77 Secretarial designees. members of the reserve components Subject to the capabilities of the pro- who apply for active duty. fessional staff and the availability of (a) Necessary medical examinations space and facilities, naval MTFs and may be furnished, including hos- DTFs will provide treatment to indi- pitalization when qualifications for viduals that have been granted Sec- service cannot otherwise be deter- retarial designee status by any of the mined. Use such a period of hospitaliza- three service Secretaries (Navy, Army, tion only for diagnostic purposes. Do or Air Force), the Secretary of Com- not correct disqualifying defects. merce for NOAA personnel, the Sec- (b) Applicants who suffer injury or retary of Health and Human Services acute illness while awaiting or under- for USPHS personnel, or the Secretary going processing at Navy and Marine of Transportation for Coast Guard per- Corps facilities or MEPS may be fur- sonnel. nished emergency medical and dental (a) Potential designees. Upon a show- care, including emergency hospitaliza- ing of sufficient cause, the Secretary of tion, for that injury or illness. the Navy may authorize individuals,
330
VerDate 25
not otherwise authorized by law, to re- (7) In other instances wherein the cir- ceive such care as is available in naval cumstances clearly merit the providing MTFs in the United States. Designa- of treatment in naval MTFs, and in tion may be extended on a worldwide which the best interest of the patient, basis for preadoptive children and the Navy, and the Government will be wards of active duty members, and for served, favorable Secretarial action abused dependents delineated in para- may result. The mere need of medical graph (a)(6) of this section. Temporary care by a former beneficiary or other in loco parents or foster parent status person, alone, will not support ap- of the member with regard to a minor proval of such a request. is insufficient for approval. Also, civil- (b) Requests for consideration. Re- ian health care under the CHAMPUS quests for consideration will be submit- program cannot be authorized for other ted to the Commander, Naval Medical than abused dependents. The Sec- Command (MEDCOM–33) by applicants retary’s discretionary authority is ex- via their command, when applicable, or ercised most conservatively, however, by the Medical Department command favorable action is usually taken on re- concerned. Requests should include any quests involving the following situa- pertinent information which will sup- tions: port resolution and a return address. (1) Preadoption proceedings wherein Requests involving: an active duty member or a retired (1) Preadoption must include a leg- member has taken affirmative legal ac- ible reproducible copy of an interim tion to adopt a child. court order or adoption agency place- (2) Custodianships and guardianships ment agreement which names the spon- authorized by a court order wherein sor and identifies the other participat- the member is designated by the court ing parties. A petition for a court order as the custodian or guardian and the is insufficient to support a rec- ommendation for approval. child is fully dependent upon the active (2) Custodianships and guardianships duty or retired member sponsor. must include a legible reproducible (3) Evaluation and selection of non- copy of the court order, identification beneficiaries who are donor candidates of the parties, and also identify any for an organ or tissue transplant proce- amounts of income to which the ward dure in behalf of a military service is entitled. beneficiary. (3) Participants in clinical research (4) Nonbeneficiary participants in of- studies must include: ficially approved clinical research (i) Sufficient clinical information studies. concerning the nature of the study. (5) Unremarried former spouses who: (ii) Benefits which may accrue to the Require care for a condition incurred individual. during or caused/aggravated by condi- (iii) The extent, if any, to which ac- tions associated with the member’s or cess by other authorized beneficiaries former member’s creditable service; do will be impaired. not qualify under the former spouses (iv) Benefits which will accrue to the act; and do not have medical coverage command, e.g., enhancement of train- under an employer-sponsored health ing, maximum use of specialized facili- plan which will provide for the care re- ties, etc. quired. (v) Recommended duration of des- (6) Abused dependents of discharged ignation. or dismissed former uniformed services (vi) Whether the consenting individ- members in need of medical or dental ual has been informed concerning the care resulting from knowledge of the nature of the study, its personal impli- abuse or for an injury or illness result- cations, and freely consents. ing from abuse by the former member. (4) Unremarried former spouses must Eligibility will terminate the earliest include: of 1 year after the date on which the (i) A notarized copy of the marriage member is discharged or dismissed license. from a uniformed service, or when care (ii) A statement attesting to the fact is no longer needed. that the sponsoring former spouse
331
VerDate 25
achieved 20 or more years of creditable (viii) The Under Secretary of Defense military service. for Policy. (iii) Copy of divorce decree with offi- (ix) The Under Secretary of Defense cial date. for Research and Engineering. (5) Abused depdendents must include: (x) The Secretaries, Under Secretar- (i) Full name, social security num- ies, and the Assistant Secretaries of ber, grade or rate, branch or service, the Military Departments. and date and type of discharge or dis- (d) Authorization. Designees will missal of the former member. Such a present a signed letter bearing the let- member must have received a dishon- terhead of the designating service. Sec- orable or bad-conduct discharge or dis- retarial designees are not included in missal from a uniformed service as a the DEERS data base and may not pos- result of court-martial conviction for sess Government identification cards. an offense involving abuse of a depend- Therefore, the only proof of their eligi- ent of the member. bility for treatment may be the letter (ii) Full names, social security num- of authorization. When a Secretarial bers (if assigned), and relationship to designee presents for treatment: the former member of any dependent in (1) Ask for identification of the indi- need of medical or dental care to treat vidual presenting the letter of author- adverse health conditions resulting ization to assure that the person seek- from such dependent’s knowledge of ing care is the individual to whom the the abuse or any injury or illness suf- letter was issued. fered by the abused person as a result (2) Check the expiration date on the of such abuse. letter of authorization. Many author- (c) Blanket designation. (1) The Sec- izations are issued for only a specified retary of Defense has granted Secretar- period of time, e.g., abused depend- ial designee status to full-time Sched- ents—no longer than 1 year. ule ‘‘A’’ faculty members of the Uni- (3) Check to assure that the individ- formed Services University of Health ual is applying for care authorized by Sciences (USUHS). They have been pro- the letter of authorization. Designa- vided documentation substantiating tion is often granted for a specific diag- their eligibility and, where necessary, nosis or specific mode of treatment. an eligibility termination date. These (4) Check to assure that the individ- personnel are authorized routine care ual has not been designated for care at the Naval Hospital, Bethesda, MD. only as specific facility. Many author- At other naval MTFs, only emergency izations are granted for conditions or treatment is authorized while they are for care that can be rendered only by a traveling on official university busi- specified physician or under a specific ness. The letter of authorization ex- program. cludes routine dental care, prosthetic (5) Place a copy of the letter of au- appliances, and spectacles. thorization in the individual’s Health Record or outpatient treatment record (2) The following officials within the on the left side at the first visit or ad- Government, the Department of De- mission. fense, and military departments have (e) Charges and collection. (1) Inter- been granted blanket Secretarial des- agency rates are applicable for inpa- ignation for medical and emergency tient and outpatient care provided out- dental care in naval MTFs in the side the National Capital Region to all United States: individuals listed in paragraph (c)(2) of (i) The President. this section with the exception of (ii) The Vice President. Members of Congress. Charges are at (iii) Members of the Cabinet. full reimbursement rates for Members (iv) Article III Federal Judges. of Congress provided inpatient or out- (v) U.S. Court of Military Appeals patient care outside the National Cap- Judges. ital Region. (vi) Members of Congress. (2) In the National Capital Region: (vii) The Secretary, Deputy Sec- (i) Charges are waived for outpatient retary, and the Assistant Secretaries of care provided to all categories listed in Defense. paragraph (c)(2) of this section.
332
VerDate 25
(ii) Charge interagency rates for in- requiring domiciliary care. Routine patient care of all individual in para- dental care, other than dental pros- graph (c)(2) of this section except Mem- thesis and orthodontia, is authorized bers of Congress. Charge Members of on a space available basis provided fa- Congress at full reimbursement rates. cilities are not otherwise available in (3) Complete and submit, per subpart reasonably accessible non-Federal fa- J, a DD 7 (Report of Treatment Fur- cilities. nished Pay Patients, Hospitalization (c) Records disposal. Upon completion Furnished, part A) or DD 7A (Report of of treatment of accredited representa- Treatment Furnished Pay Patients, tives of the American Red Cross or Outpatient Treatment, part B) when their dependents, forward medical outpatient or inpatient care is ren- records, including all clinical records dered to Secretarial designees whose and x-ray films, to the Medical Direc- charges for care have not been waived. tor, National Headquarters, American Red Cross, 20th and D Street NW., § 728.78 American Red Cross rep- Washington, DC 20006. resentatives and their dependents. (d) Charges and collection. Charge (a) Potential beneficiaries. beneficiaries in paragraph (a) (1) and (1) Volunteer workers. (2) of this section the rate applicable to (2) Full-time, paid employees. officer personnel and dependents in (3) Dependents of personnel enumer- paragraph (a)(3) of this section the de- ated in paragraph (a) (1) and (2) of this pendent rate. Complete and submit, per section when accompanying their spon- subpart J, a DD 7 (Report of Treatment sor outside the continental United Furnished Pay Patients, Hospitaliza- States, including Alaska, Hawaii, and tion Furnished, part A) or DD 7A (Re- Puerto Rico. port of Treatment Furnished Pay Pa- (b) Care authorized. (1) When services tients, Outpatient Treatment, part B) of the American Red Cross (ARC) have when outpatient or inpatient care is been accepted in behalf of the Federal rendered to ARC personnel or to their Government under applicable DOD reg- dependents. ulations, beneficiaries in paragraph (a)(1) of this section are considered § 728.79 Employees of Federal contrac- ‘‘employees’’ of the Government for the tors and subcontractors. purpose of this part and are authorized (a) Beneficiaries. (1) U.S. citizen con- health care in USMTFs, both in and tractor, engineering, and technical outside the United States for work-re- service personnel designated as U.S. lated conditions. See § 728.53(a)(2) re- Navy Technicians. garding the specific application of this (2) Civilian employees of contractors authorization. and subcontractors operating under (2) Beneficiaries enumerated in para- U.S. Government contracts. graph (a) (1) and (2) of this section are (3) Dependents of personnel enumer- authorized health care in USMTFs lo- ated in paragraph (a) (1) and (2) of this cated outside the United States for section when accompanying their spon- both work and nonwork-related condi- sor outside the continental United tions. See § 728.53(a)(2) for treatment of States or in Alaska. work-related conditions of those in (b) Care authorized. (1) Beneficiaries paragraph (a)(1) of this section. identified in paragraph (a) (1) and (2) of (3) Beneficiaries identified in para- this section may be provided emer- graph (a) (1), (2), and (3) of this section gency care in naval MTFs for illnesses are authorized emergency care in and injuries occurring at work in or USMTFs outside the continental outside the United States. United States, including Alaska, Ha- (2) While serving outside the con- waii, and Puerto Rico where facilities tinental United States or in Alaska, are not otherwise available in reason- where facilities are not otherwise ably accessible and appropriate non- available in reasonably accessible and Federal hospitals. Provide hospitaliza- appropriate non-Federal facilities, tion only for acute medical and sur- beneficiaries identified in paragraph (a) gical conditions, exclusive of nervous, (1), (2), and (3) of this section may re- mental, or contagious diseases or those ceive hospitalization and necessary
333
VerDate 25
outpatient services in naval MTFs on a (c) The major objective of the follow- reimbursable basis. Except for bene- ing programs for civil service employ- ficiaries in paragraph (a)(1) of this sec- ees, regardless of location, is emer- tion who are serving aboard naval ves- gency treatment for relief of minor ail- sels, all others enumerated may only ments or injuries to keep the employee be hospitalized for acute medical and on the job: surgical conditions, exclusive of nerv- (1) The Department of Labor, Office ous, mental, or contagious diseases or of Workers’ Compensation Programs those requiring domiciliary care. Rou- (OWCP), governs the overall medical tine dental care, other than dental care program for employees of the Gov- prosthesis and orthodontia, is author- ernment who sustain injuries while in ized on a space available basis provided the performance of duty, including dis- facilities are not otherwise available in eases proximately caused by conditions reasonably accessible and appropriate of employment (see § 728.53). non-Federal facilities. (c) Charges and collection. Care is au- (2) Federal civil service employees thorized on a reimbursable basis. Com- and applicants for such employment plete and submit, per subpart J, a DD 7 are authorized services as outlined in (Report of Treatment Furnished Pay chapter 22, section XIII, of the Manual Patients, Hospitalization Furnished, of the Medical Department part A) or DD 7A (Report of Treatment (MANMED). When appropriated fund Furnished Pay Patients, Outpatient and nonappropriated fund employees, Treatment, part B) when outpatient or including unpaid volunteer employees, inpatient care is rendered. require emergency and nonemergency occupational health services due to an § 728.80 U.S. Government employees. illness or an injury on the job, provide (a) Civil service employees of all Fed- this limited care through your occupa- eral agencies, including teachers em- tional health service, emergency room, ployed by Department of Defense De- or evening primary care clinic, as ap- pendent’s Schools (DODDS) and their propriate. This care is rendered free of dependents, may be provided hos- charge to the employee, the employee’s pitalization and necessary outpatient command, or insurance carrier. In- services, (other than occupational cluded with this group are Military health services), on a reimbursable Sealift Command (MSC) civilian ma- basis, outside the continental limits of rine personnel (authorized additional the United States and in Alaska, where care and services as outlined in facilities are not otherwise available in BUMINST 6320.52 and care under reasonably accessible and appropriate § 728.53(a)(7)) and members of the Na- non-Federal hospitals. Except for em- tional Oceanic and Atmospheric Ad- ployees who are serving aboard naval ministration (NOAA) serving with the vessels, hospitalization may be fur- Navy. nished only for acute medical and sur- (3) Under the technical control of the gical conditions, exclusive of nervous, Surgeon General of the Army, the DOD mental, or contagious diseases or those Civilian Employees’ Health Service is requiring domiciliary care. Routine dental care, other than dental pros- responsible for administering the thesis and orthodontia, is authorized health program for all Federal civil on a space available basis provided fa- service employees in the District of Co- cilities are not otherwise available in lumbia area. reasonably accessible and appropriate (d) Care, other than occupational non-Federal facilities. health services, is provided on a reim- (b) Such civilian employees and their bursable basis. Complete and submit, dependents may be provided medical, per subpart J, a DD 7 (Report of Treat- surgical, dental treatment, hospitaliza- ment Furnished Pay Patients, Hos- tion, and optometric care at installa- pitalization Furnished, part A) or DD tions in the United States which have 7A (Report of Treatment Furnished been designated remote by the Sec- Pay Patients, Outpatient Treatment, retary of the Navy for the purpose of part B) when outpatient or inpatient providing medical care. care is rendered.
334
VerDate 25
§ 728.81 Other civilians. (iv) Civilians competing in Navy or Marine Corps sponsored competitive (a) General. In an emergency, any meets. person may be rendered care in naval (v) Members of Little League teams MTFs to prevent undue suffering or and Youth Conservation groups. loss of life or limb. Limit care to that (vi) Boy Scouts and Girl Scouts of necessary only during the period of the America. emergency, and if further treatment is (4) Other civilian personnel included indicated, initiate action to transfer below are not normally eligible for the patient to a private physician or ci- care in naval MTFs; however, under vilian facility as soon as possible. Fur- the conditions set forth, care may be ther, subject to the provisions of §728.3, rendered. the following personnel are authorized (i) Potential beneficiaries. care as set forth. (A) Civilian representatives of reli- (b) Beneficiaries and extent of care. (1) gious groups. Provide all occupational health serv- (B) Educational institutions rep- ices to civilian employees paid from resentatives. nonappropriated funds, including Navy (C) Athletic clinic instructors. exchange employees and service club employees, free of charge (see (D) USO representatives. § 728.80(c)(2)). Provide treatment of oc- (E) Celebrities and entertainers. cupational illnesses and injuries other (F) Social agencies representatives. than in emergencies per rules and regu- (G) Others in a similar status to lations of the Office of Workers’ Com- those in § 728.81(b)(4)(i) (A) through (F). pensation Programs (see § 728.53). (H) News correspondents. (2) Civilians attending the Federal (I) Commercial airline pilots and em- Bureau of Investigation (FBI) Acad- ployees. emy, Marine Corps Development and (J) Volunteer workers. This category Education Command, Quantico, VA, includes officially recognized welfare may be rendered care at the Naval workers, other than Red Cross. Medical Clinic, Quantico, VA, for emer- (ii) Care authorized. (A) Persons enu- gencies. Such persons who are in need merated in paragraph (b)(4)(i) (A) of hospitalization for injuries or dis- through (G) of this section, who are ease may be hospitalized and classed as contracted to provide direct services to civilian humanitarian nonindigents the Armed Forces and who are acting under orders issued by the Department with the approval of the cognizant hos- of Defense or one of the military de- pital’s commanding officer. EXCEPTION: partments to visit military commands Certain individuals, such as employees overseas, and their accompanying de- of the Federal Bureau of Investigation pendents, may be provided medical who are injured in the line of duty, care in naval MTFs outside the 48 con- may be entitled to care at the expense tiguous United States and the District of the Office of Workers’ Compensation of Columbia provided local civilian fa- Programs (OWCP) (see § 728.53). cilities are not reasonably available or (3) The following civilians who are in- are inadequate. Limit inpatient care to jured or become ill while participating acute medical and surgical conditions in Navy or Marine Corps sponsored exclusive of nervous, mental, or con- sports, recreational or training activi- tagious diseases, or those requiring ties may be rendered care on a tem- domiciliary care. Routine dental care, porary (emergency) basis until such other than dental prostheses and or- time as disposition can be effected to thodontia, is authorized on a space another source of care. available basis outside the United (i) Members of the Naval Sea Cadet States, provided such care is not other- Corps. wise available in reasonably accessible (ii) Junior ROTC/NDCC (National De- and appropriate non-Federal facilities. fense Cadet Corps) cadets. (B) Persons enumerated in paragraph (iii) Civilian athletes training or (b)(4)(i) (H) and (I) of this section are competing as part of the U.S. Olympic authorized emergency medical and den- effort. tal care in naval MTFs outside the 48
335
VerDate 25
contiguous United States and the Dis- pitalization beyond expiration of sen- trict of Columbia provided local civil- tences are not eligible for care but may ian facilities are not reasonably avail- be hospitalized as civilian humani- able or are inadequate. tarian nonindigents until final disposi- (C) Persons enumerated in paragraph tion can be made to some other appro- (b)(4)(i)(J) of this section, both within priate facility. and outside the 48 contiguous United (iii) On parole pending completion of States and the District of Columbia, appellate review or whose parole may receive care in naval MTFs for in- changes to an excess leave status fol- juries or diseases incurred in the per- lowing completion of sentence to con- formance of duty as beneficiaries of finement while on parole are members OWCP (see § 728.53). Additionally, if of the military service and as such are such volunteers are sponsored by an authorized care as outlined in subpart international organization (e.g., the B. United Nations) or by a voluntary non- (iv) On parole whose punitive dis- profit-relief agency registered with and charge has been executed are not mem- approved by the Advisory Committee bers of the military service and are on Voluntary Aid (e.g., CARE), they therefore not entitled to care at Gov- may receive other necessary non- ernment expense. If the circumstances emergency medical care and occupa- are exceptional, individuals herein who tional health services while serving are not authorized care may request outside the 48 contiguous United Secretarial designee status under the States and the District of Columbia. provisions of § 728.77. (c) Charges and collection. Care is pro- (2) Nonmilitary Federal prisoners. vided on a reimbursable basis. Com- Under the provisions of this section, plete and submit, per subpart J, a DD 7 nonmilitary Federal prisoners are au- (Report of Treatment Furnished Pay thorized only emergency medical care. Patients, Hospitalization Furnished, When such care is being rendered, the part A) or DD 7A (Report of Treatment institution to which prisoners are sen- Furnished Pay Patients, Outpatient tenced must furnish necessary guards Treatment, part B) when outpatient or to effectively maintain custody of pris- inpatient care is rendered. oners and assure the safety of other pa- § 728.82 Individuals whose military tients, staff members, and residents of records are being considered for the local area. Under no circumstances correction. will military personnel be voluntarily Individuals who require medical eval- used to guard or control such pris- uation in connection with consider- oners. Upon completion of emergency ation of their individual circumstances care, make arrangements for imme- by the Navy, Army, and Air Force diate transfer of the prisoners to a non- Board for Correction of Military military MTF or for return to the facil- Records are authorized evaluation, in- ity to which sentenced. cluding hospitalization when necessary (3) Enemy prisoners of war and other for the proper conduct thereof. detained personnel. Subject to the provi- sions of § 728.3, enemy prisoners of war § 728.83 Persons in military custody and other detained personnel are enti- and nonmilitary Federal prisoners. tled to and may be rendered all nec- (a) Potential beneficiaries. essary medical and dental care. (1) Military prisoners. (c) Charges and collection. Care pro- (2) Nonmilitary Federal prisoners. vided individuals enumerated in (3) Enemy prisoners of war and other § 728.83(b)(1) (ii), (iv), and (2) is on a re- detained personnel. imbursable basis. Complete and sub- (b) Care authorized—(1) Military pris- mit, per subpart J, a DD 7 (Report of oners. (i) Whose punitive discharges Treatment Furnished Pay Patients, have been executed but whose sen- Hospitalization Furnished, part A) or tences have not expired are authorized DD 7A (Report of Treatment Furnished all necessary medical and dental care. Pay Patients, Outpatient Treatment, (ii) Whose punitive discharges have part B) when outpatient or inpatient been executed and who require hos- care is rendered.
336
VerDate 25
Subpart H—Adjuncts to Medical service and when such members will be Care separated from the service because of these defects. § 728.91 General. (c) For active duty members, make Adjuncts to medical care include but the initial allowance of orthopedic are not limited to prosthetic devices footwear and orthopedic alterations to such as artificial limbs, artificial eyes, standard footwear the same quantity hearing aids, orthopedic footwear, as provided in the initial clothing al- spectacles, wheel chairs, hospital beds, lowance. and similar medical support items or (d) Base the number of orthopedic aids which are required for the proper and prosthetic appliances issued or re- care and management of the condition placed for other authorized recipients being treated. Generally, expenses in- upon the individual’s requirements as curred for procurement of such items, determined by the attending physician either from civilian sources as supple- to be consistent with the highest mental care or from stocks maintained standards of modern medicine. by the facility, are payable from oper- (e) Former members of the uniformed ation and maintenance funds available service should be advised that they for support of naval MTFs. However, may obtain durable medical equip- certain adjuncts may be cost-shared ment, medical care, and adjuncts from under CHAMPUS for CHAMPUS-eligi- Veterans Administration facilities. ble individuals under circumstances (f) Dependents are authorized certain enumerated in the cooperative care or adjuncts per §§ 728.31 (c) and (d) and in services criteria of § 728.4(z). instances where items are not nor- mally authorized at the expense of the § 728.92 Policy. Government, they may be provided at (a) Provide adjuncts to medical care cost to the United States if available to eligible beneficiaries receiving inpa- from Government stocks under the fol- tient or outpatient care when, in the lowing conditions: opinion of the attending physician, (1) Outside the United States. such adjuncts will offer substantial as- (2) At specific stations within the sistance in overcoming the handicap or United States which have been author- condition and thereby contribute to ized by the Secretary of the Navy to the well-being of the beneficiary. sell these items. (b) Unless necessary for humani- tarian reasons, do not furnish ortho- § 728.93 Chart of adjuncts. pedic and prosthetic appliances on an The following chart and footnotes elective basis to members of the naval provide information relative to ad- service with short periods of service re- juncts which may be furnished the sev- maining when the defect requiring the eral categories of beneficiaries eligible appliance existed prior to entry into for medical care at naval MTFs.
Others authorized the Dependents author- Active duty and re- same benefits as active Other bene- Adjuncts ized the same bene- 8 tired members duty or retired mem- fits ficiaries( ) bers(8)
Ambulance service ...... Yes ...... Yes ...... Yes(1) ...... No Artificial eyes ...... Yes ...... Yes ...... Yes ...... Maybe(3) Artificial limbs ...... Yes ...... Yes ...... Yes ...... Maybe(3) Contact or special lenses(11) ...... Yes(4) ...... Yes(4) ...... Maybe(2)(4)(6) ...... No Crutches(7) ...... Yes ...... Yes ...... Yes ...... Yes Dental prostheses ...... Yes ...... Yes ...... Maybe(9) ...... Maybe(9) Elastic stockings ...... Yes ...... Yes ...... Yes ...... Yes Hearing aids(10) ...... Yes(5) ...... Yes(5) ...... Maybe(2) ...... Maybe(3) Hearing aid parts and batteries .. Yes(10) ...... Yes(10) ...... Maybe(2)(10) ...... No Hospital beds (7) ...... Yes ...... Yes ...... Yes ...... Yes Joint braces ...... Yes ...... Yes ...... Yes ...... Yes Orthopedic footware ...... Yes ...... Yes ...... Maybe(2) ...... Maybe(3) Prosthetic devices, other(7) ...... Yes ...... Yes ...... Maybe(2) ...... No Respirators and inhalators(7) ...... Yes ...... Yes ...... Yes ...... Yes(1) Resuscitators (7) ...... Yes ...... Yes ...... Yes ...... Yes(1) Spectacles ...... Yes ...... Yes ...... Maybe(2)(6) ...... No Walking irons(7) ...... Yes ...... Yes ...... Yes ...... Yes
337
VerDate 25
Others authorized the Active duty and re- same benefits as active Dependents author- Other bene- Adjuncts ized the same bene- 8 tired members duty or retired mem- fits ficiaries( ) bers(8)
Wheel chairs(7) ...... Yes ...... Yes ...... Yes ...... Yes 1 When considered medically appropriate by the attending physician. 2 See § 728.92(f). 3 Outside the United States and at designated remote stations when considered medically appropriate by the attending physi- cian. 4 Contact or special lenses are not to be issued solely for cosmetic reasons. Further guidelines are contained in NAVMEDCOMINST 6810.1. 5 In addition to the hearing aid, include in initial issue one spare receiver cord, approximately 1 month's supply of batteries, and a statement indicating make, model, type of receiver, serial number, code, part numbers, ``B'' battery voltage, and type of ``A'' and ``B'' batteries, as appropriate. Provide replacement of hearing aids upon the same basis as initial issue and, except in unusual circumstances, will not be replaced within 2 years of the initial furnishing or the last replacement of the appliance. 6 Spectacles, contact lenses, or intraocular lenses may be provided dependents with eye conditions which require these items for complete medical or surgical management of a condition other than ordinary refractive error. For further information, consult NAVMEDCOMINST 6810.1. 7 May be loaned on a custody basis at the discretion of the attending physician. 8 See subpart of this part relating to specific beneficiary. 9 When considered by the attending physician and dentist to be an adjunct to a medical or surgical condition other than dental and when in consonance with existing legislation and directives. 10 For further guidelines, consult BUMEDINST 6320.41B. 11 Includes intraocular lenses required for implantation upon removal of cataracts.
Subpart I—Reservists—Continued (2) There is no limited duty status, Treatment, Return to Limited per se, for inactive reservists. However, Duty, Separation, or Retire- if the attending physician determines that a reservist is temporarily unfit for ment for Physical Disability full duty, but will be fit for full duty following a period of convalescence or § 728.101 General. following duty with physical limita- (a) Notice of eligibility (NOE). While tions, not to exceed 6 months, the phy- the NOE is basically a document that sician may return the reservist to duty substantiates entitlement to a disabil- with a summary of the hospitalization ity benefit equal to pay and allow- or treatment. The summary will set ances, it may be accepted when re- forth the limitations posed by the quired to substantiate eligibility for member’s disability and the period of benefits other than pay and allow- such limitations. Followup hospitaliza- ances, i.e., treatment in USMTFs under tion, treatment, and evaluation for the the provisions of title 10, United States same condition may be provided at Code. USMTFs during the period of restricted (b) Physical disability benefits. The fol- duty, if required. If, during the period lowing, excerpted and paraphrased of the restricted duty, it appears that from SECNAVINST 1770.3, paragraph the reservist will be permanently unfit 10, is applicable when a reservist may for full duty, promptly authorize the be entitled to physical disability bene- reservist to report for evaluation, fits. treatment if required, and appearance (1) When a notice of eligibility (NOE) before a medical board at the nearest has been issued to a member hospital- naval MTF capable of accomplishing ized in a naval MTF and the attending same. Admission to the sicklist is au- physician is of the opinion that recov- thorized, when required. Should the ery is not anticipated or that the re- medical board recommend appearance servist is not expected to be fit for re- before a physical evaluation board, dis- turn to full duty within a reasonable ability benefits equal to pay and allow- period, a medical board will be con- ances should continue until final dis- vened and the case managed the same position is effected. as that of a Regular member. Assure that a copy of the NOE accompanies § 728.102 Care from other than Federal the medical board report forwarded to sources. the Central Physical Evaluation Board. The provisions of this subpart do not Disability benefits, equal to pay and al- authorize care for reservists at other lowances, will continue in such in- than Federal facilities nor out of funds stances until final disposition. available for operation of USMTFs
338
VerDate 25
(supplemental care) after a period of (a) Coast Guard. (1) Active Officers; active duty or a period of training duty (2) Retired Officers; (3) Active Enlisted; ends, including travel to and from such (4) Retired Enlisted; (5) Dependents; (6) training. Such care may be rendered Cadets. under the provisions of part 732 of this (b) Public Health Service. (1) Active Of- chapter. ficers; (2) Retired Officers; (3) Depend- ents of Officers. Subpart J—Initiating Collection (c) National Oceanic and Atmospheric Action on Pay Patients Administration (NOAA). (1) Active Offi- cers; (2) Retired Officers; (3) Depend- § 728.111 General. ents of Officers. The Comptroller of the Navy has ap- (d) Foreign. (1) NATO Officers (Except proved a system of transactions that Canadians provided care under the generates reports to COMNAV comparable care agreement.); (2) NATO MEDCOM on unfunded reimbursable Enlisted (Except Canadians provided transactions. The purpose of the final care under the comparable care agree- report is to provide data on services furnished by naval health care facili- ment.); (3) NATO Dependents; (4) Civil- ties for which central collection from ians Accompanying NATO Members; (5) other Government agencies and private Foreign Military Sales (FMS) Officers; parties is required. (6) FMS Enlisted; (7) FMS Dependents; (8) FMS Civilians; (9) Military Grant § 728.112 Responsibilities. Aid Officers; (10) Military Grant Aid (a) Patient administration departments. Enlisted; (11) Military Grant Aid De- The initiation of the collection process pendents; (12) Military Grant Aid Civil- begins with patient administration de- ians; (13) Military Officers From Other partments. Collection action cannot be Than NATO Nations; (14) Military En- accomplished unless patient adminis- listed From Other Than NATO Nations; tration departments take the initial (15) Dependents of Officers and Enlisted step to complete: From Other Than NATO Nations; (16) (1) DD 7, Report of Treatment Fur- Civilians Accompanying Military Mem- nished Pay Patients, Hospitalization Fur- bers of Other Than NATO Nations; (17) nished (part A). Prepare a separate sub- Nationals and Their Dependents. stantiating DD 7, in triplicate, for each (e) Secretarial designees not exempted category of pay patient receiving inpa- from paying. tient care. At the end of each day that (f) Others. (1) Merchant Marines; (2) any pay patient is admitted, submit Military Sealift Command (MSC) Per- DD 7’s to the collection agent. sonnel; (3) Public Health Service bene- (2) DD 7A, Report of Treatment Fur- ficiaries (Other than Commissioned nished Pay Patients, Outpatient Treat- Corps); (4) Veterans Administration ment Furnished (part B). Prepare a sepa- beneficiaries; (5) Peace Corps bene- rate substantiating DD 7A, in trip- licate, for each category of pay patient ficiaries; (6) Job Corps beneficiaries; (7) receiving outpatient care. At the end of Volunteers In Service to America each day that any pay patient is treat- (VISTA) beneficiaries; (8) Office of ed on an outpatient basis, submit DD Workers Compensation Program 7A’s to the collection agent. (OWCP) beneficiaries; (9) Bureau of (b) Collection agents. Upon receipt of a Employees Compensation (BEC) bene- completed DD 7 or DD 7A, collection ficiaries; (10) Department of State and agents will take the action indicated in Other Federal Agencies beneficiaries paragraph 24304 of the Resource Man- (prepare a separate form for each Fed- agement Handbook, NAVMED P–5020, eral agency); (11) Civilian Humani- to effect central collection action. tarian Nonindigents (CHNI); (12) Trust Territory beneficiaries; (13) Others not § 728.113 Categories of pay patients. specified above who are not entitled to The categories of patients for whom health benefits at the expense of the collection action must be initiated are: Government.
339
VerDate 25
PART 732—NONNAVAL MEDICAL 6320.18 contain guidelines concerning AND DENTAL CARE care for other eligible beneficiaries, not authorized care by this part.
Subpart A—General § 732.2 Action. Sec. Ensure that personnel under your 732.1 Background. cognizance are made aware of the con- 732.2 Action. tents of this part. Failure to comply Subpart B—Medical and Dental Care from with contents may result in delayed Nonnaval Sources adjudication and payment or may re- sult in denial of Navy financial respon- 732.11 Definitions. sibility for expenses of maternity, med- 732.12 Eligibility. ical, or dental care obtained. 732.13 Sources of care. 732.14 Authorized care. 732.15 Unauthorized care. Subpart B—Medical and Dental 732.16 Emergency care requirements. Care From Nonnaval Sources 732.17 Nonemergency care requirements. 732.18 Notification of illness or injury. § 732.11 Definitions. 732.19 Claims. Unless otherwise qualified in this 732.20 Adjudication authorities. 732.21 Medical board. part the following terms when used 732.22 Recovery of medical care payments. throughout are defined as follows: 732.23 Collection for subsistence. (a) Active duty. Full-time duty in the 732.24 Appeal procedures. active military service of the United States. Includes full-time training Subpart C—Accounting Classifications for duty; annual training duty; and attend- Nonnaval Medical and Dental Care ance, while in the active military serv- Expenses and Standard Document ice, at a school designated as a service Numbers school by law or by the Secretary of the military department concerned. 732.25 Accounting classifications for nonnaval medical and dental care ex- (b) Active duty for training. A specified penses. tour of active duty for Reserves for 732.26 Standard document numbers. training under orders that provides for automatic reversion to non-active duty AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 1071–1088, status when the specified period of ac- 5031, 6148, 6201–6203, and 8140; and 32 CFR 700.1202. tive duty is completed. It includes an- nual training, special tours, and the SOURCE: 52 FR 32297, Aug. 27, 1987, unless initial tour performed by enlistees otherwise noted. without prior military service. The pe- riod of duty includes travel to and from Subpart A—General training duty, not in excess of the al- lowable constructive travel time pre- § 732.1 Background. scribed by SECNAVINST 1770.3 and When a U.S. Navy or Marine Corps paragraphs 10242 and 10243 of DOD Mili- member or a Canadian Navy or Marine tary Pay and Allowances Entitlements Corps member receives authorized care Manual. from other than a Navy treatment fa- (c) Constructive return. For purposes cility, care is under the cognizance of of medical and dental care, an the uniformed service medical treat- unathorized absentee’s return to mili- ment facility (USMTF) providing care, tary control may be accomplished the USMTF referring the member to through notification of appropriate another treatment source, or under the military authorities as outlined below. provisions of this part. If such a mem- (1) For members in an unauthorized ber is not receiving care at or under absentee (UA) status, constructive re- the auspices of a Federal source, re- turn to military control for the pur- sponsibility for health and welfare, and pose of providing medical or dental the adjudication of claims in connec- care at Navy expense is effected when tion with their care, remains within one of the following has occurred: the Navy Medical Department. Part 728 (i) A naval activity informs a civilian of this chapter and NAVMEDCOMINST provider of medical or dental care that
340
VerDate 25
the Navy accepts responsibility for a (ii) Alston-Brighton Aid and Health naval member’s care. The naval activ- Group, Inc., Brighton Marine Public ity providing this information must Health Center, 77 Warren Street, Bos- also provide documentation of such no- ton, MA 02135, telephone (617) 782–3400. tification to the appropriate adjudica- (iii) Bayley Seton Hospital, Bay tion authority in § 732.20. Street and Vanderbilt Avenue, Staten (ii) A member has been apprehended Island, NY 10304, telephone (718) 390– by civil authorities at the specific re- 5547 or 6007. quest of naval authorities and naval (iv) Pacific Medical Center, 1200 12th authorities have been notified that the Avenue South, Seattle, WA 98144, tele- member can be released to military phone (206) 326–4100. custody. (3) Outpatient services only. (i) Coastal (iii) A naval member has been ar- Health Service, 331 Veranda Street, rested, while in a UA status, by civil Portland, ME 04103 (207) 774–5805. authorities for a civil offense and a (ii) Lutheran Medical Center, Down- naval authority has been notified that town Health Care Services, 1313 Supe- the member can be released to military rior Avenue, Cleveland, OH 44113, tele- control. phone (216) 363–2065. (2) When a naval member has been ar- rested by civil authorities for a civil (e) Duty status. The situation of the offense while in a UA status and the of- claimant when maternity, medical, or fense does not allow release to military dental care is received. Members, in- control, constructive return is not ac- cluding reservists, on leave or liberty complished. The individual is respon- are considered in a duty status. Reserv- sible for medical and dental care re- ists, performing active duty for train- ceived prior to arrest and the incarcer- ing or inactive duty training, are also ating jurisdiction is responsible for considered in a duty status during care required after arrest. their allowable constructive travel (d) Designated Uniformed Services time to and from training. Treatment Facilities (Designated USTFs). (f) Emergency care. Medical treatment Under Pub. L. 97–99, the following fa- of severe life threatening or poten- cilities are ‘‘designated USTFs’’ for the tially disabling conditions which result purpose of rendering medical and den- from accident or illness of sudden onset tal care to all categories of individuals and necessitates immediate interven- entitled to care under this part. tion to prevent undue pain and suffer- (1) Sisters of Charity of the Incarnate ing or loss of life, limb, or eyesight and Word Health Care System, 6400 dental treatment of painful or acute Lawndale, Houston, TX 77058 (713) 928– conditions. 2931 operates the following facilities: (g) Federal facilities. Navy, Army, Air (i) St. John Hospital, 2050 Space Park Force, Coast Guard, Veterans Adminis- Drive, Nassau Bay, TX 77058, telephone tration, and USTFs (former U.S. Public (713) 333–5503. Inpatient and outpatient Health Service facilities listed in services. § 732.11(d). (ii) St. Mary’s Hospital Outpatient (h) Inactive duty training. Duty pre- Clinic, 404 St Mary’s Boulevard, Gal- scribed for Reserves by the Secretary veston, TX 77550, telephone (409) 763– of the Navy under Section 206 of Title 5301. Outpatient services only. 37, United States Code, or any other (iii) St. Joseph Hospital Ambulatory provision of law. Also includes special Care Center, 1919 La Branch, Houston, additional duties authorized for Re- TX 77002, telephone (713) 757–1000. Out- serves by an authority designated by patient services only. the Secretary of the Navy and per- (iv) St Mary’s Hospital Ambulatory formed by Reserves on a voluntary Care Center, 3600 Gates Boulevard, basis in connection with the prescribed Port Arthur, TX 77640 (409) 985–7431. training or maintenance activities of Outpatient services only. units to which they are assigned. (2) Inpatient and outpatient services. (i) (i) Maternity emergency. A condition Wyman Park Health System, Inc., 3100 commencing or exacerbating during Wyman Park Drive, Baltimore, MD pregnancy when delay caused by refer- 21211, telephone (301) 338–3693. ral to a uniformed services medical
341
VerDate 25
treatment facility (USMTF) or des- (2) Nonnaval medical and dental care ignated USTF would jeopardize the program funds. Adjudication authorities welfare of the mother or unborn child. will pay claims, under this part, for (j) Member. United States Navy and care received as a result of a referral Marine Corps personnel, Department of when: National Defence of Canada Navy and (i) A United States Navy or Marine Marine Corps personnel, and Navy and Corps member or a Canadian Navy or Marine Corps personnel of other NATO Marine Corps member requires care be- Nations meeting the requirements for yond the capability of the referring care under this part. USMTF and care is obtained for such a (k) Non-federal care. Maternity, medi- member not admitted to or not being cal, or dental care furnished by civilian treated on an outpatient basis by a sources (includes State, local, and for- USMTF, and eign MTFs). (ii) The referring USMTF is not orga- (l) Nonnaval care. Maternity, medical, nized nor authorized to provide the or dental care provided by other than needed health care. Navy MTFs. Includes care in other USMTFs, designated USTFs, VA facili- (3) Other uniformed services supple- ties, as well as from civilian sources. mental care programs. In addition to (m) Office of Medical Affairs (OMA) or services that augment other USMTF’s Office of Dental Affairs (ODA). Des- capabilities, supplemental care pro- ignated offices, under program man- grams of the other uniformed services agement control of COMNAVMEDCOM include care and services comparable and direct control of regional medical to those authorized by this part, e.g., commands, responsible for administra- emergency care and pre-approved non- tive requirements delineated in this emergency care. part. Responsibilities and functional (q) Unauthorized absence. Absence or tasks of OMAs and ODAs are outlined departure without authority from a in NAVMEDCOMINST 6010.3. member’s command or assigned place (n) Prior approval. Permission granted of duty. for a specific episode of necessary but (r) Uniformed Services Medical Treat- nonemergent maternity, medical, or ment Facilities (USMTF). Health care fa- dental care. cilities of the Navy, Army, Air Force, (o) Reservist. A member of the Naval Coast Guard, and the former U.S. Pub- or Marine Corps Reserve. lic Health Service facilities listed in (p) Supplemental care—(1) Operation paragraph (d) of this section designated and maintenance funds, Navy. Supple- as USTFs per DOD and Department of mental care of all uniformed services Health and Human Services directives. members, at Navy expense, encom- passes only inpatient or outpatient § 732.12 Eligibility. care augmenting the capability of a (a) Regular members. To be eligible for naval MTF treating a member. Such non-Federal medical, dental, or emer- care is usually obtained from civilian gency maternity care at Government sources through referral by the treat- expense, Regular active duty United ing naval MTF. If a member, author- ized care under this part, is admitted States naval members and Canadian to or is being treated on an outpatient Navy and Marine Corps members must basis at any USMTF, all supplemental be in a duty status when care is pro- care is the financial responsibility of vided. that facility regardless of whether the (b) Reservists. (1) Reservists on active facility is organized or authorized to duty for training and inactive duty provide needed health care. The cost of training, including leave and liberty such care is chargeable to operation therefrom, are considered to be in a and maintenance funds (OM&N) avail- duty status while participating in able for operation of the USMTF re- training. Accordingly, they are enti- questing the care regardless of service tled to care for illnesses and injuries affiliation of the member (see part 728 occurring while in that status. of this chapter for such care under (2) Reservists are entitled to care for Navy Medical Department facilities). injuries and illnesses occurring during
342
VerDate 25
direct travel enroute to and from ac- necessarily the day and hour care was tive duty training (ACDUTRA) and to initiated. and from inactive duty training. (c) NATO naval members. Naval mem- § 732.13 Sources of care. bers of the NATO Status of Forces (a) Initial application. If a member re- Agreement (SOFA) nations of Belgium, quires maternity, medical, or dental Denmark, Federal Republic of Ger- care and naval facilities are unavail- many, France, Greece, Iceland, Italy, able, make initial application to other Luxembourg, the Netherlands, Norway, available Federal medical or dental fa- Portugal, Spain, Turkey, and the cilities or USTFs. When members are United Kingdom, are authorized out- stationed in or passing through a patient care only under the provisions of NATO SOFA nation and U.S. facilities this part when stationed in or passing are unavailable, ensure that members through the United States in connec- make initial application for emergency tion with official duties. Public Law and nonemergency care to military fa- 99–591 prohibits inpatient care of these cilities of the host country, or if appli- foreign military members in the cable, to civilian sources under the United States at the expense of the NATO SOFA nation’s health care pro- United States Government. The other gram. When hospitalized in Hawaii, NATO SOFA Nation, Canada, entered Alaska, or in a foreign medical facility, into a comparable care agreement with members and responsible commands the United States requiring the United will comply with OPNAVINST 6320.6. States to provide inpatient and out- (b) Secondary sources. When either patient care under the provisions of emergency or nonemergency care is re- this part to members of the Depart- quired and there are no Federal or ment of National Defence of Canada re- NATO SOFA facilities available, care ceiving care in the United States. may be obtained from non-Federal (d) Absent without authority. Naval sources under this part. members absent without authority during an entire episode of treatment § 732.14 Authorized care. are not eligible for non-Federal medi- (a) Medical. (1) Consultation and cal, dental, or emergency maternity treatment provided by physicians or at care at Government expense. The only medical facilities, and procedures not exception occurs when a member’s ill- involving treatment when directed by ness or injury is determined to have COMNAVMEDCOM, are authorized. been the direct cause of the unauthor- Such care includes, but is not limited ized absentee status. In such an in- to: treatment by physicians, hospital stance, eligibility will be: inpatient and outpatient care, surgery, (1) Determined to have existed from nursing, medicine, laboratory and x- the day and hour of such injury or ill- ray services, physical therapy, eye ex- ness provided the member was not in aminations, etc. See § 732.17 for prior an unauthorized absentee status prior approval of these services in non- to the onset of the illness or injury and emergency situations. initiation of treatment. (2) When transplant (including bone- (2) Retained when the member is re- marrow) is the treatment of choice, turned directly to military control. COMNAVMEDCOM approval is re- (3) Terminated should the member quired. If time permits, telephone (A) return to an unauthorized absentee 294–1102, (C) (202) 653–1102 during regu- status immediately after completion of lar hours or (A) 294–1327, (C) 653–1327 treatment. Departmental level after regular duty hours, and followup (MEDCOM–333 for medical and with a message. Request approval via MEDCOM–06 for dental) review is re- message in nonemergency situations. quired before benefits may be extended. (b) Maternity episode. If a member au- (e) Constructive return. When con- thorized care under this part qualifies structive return, defined in § 732.11(c), for care under the provisions of is effected, entitlement will be deter- § 732.17(c) and delivers in a civilian hos- mined to have existed from 0001 hours pital, routine newborn care (i.e., nurs- of the day of constructive return, not ery, newborn examination, PKU test,
343
VerDate 25
etc.) is a part of the mother’s admis- request per § 732.17. Otherwise, the pre- sion expenses. Regardless of cir- scription from the refractionist, with cumstances necessitating delivery in a proper facial measurements, must be civilian facility or how charges are sep- sent for fabrication to the appropriate arated on the bill, charges will be paid dispensing activity set forth in from funds available for care of the NAVMED COMINST 6810.1. See mother. If the infant becomes a patient § 732.15(g) concerning contact lenses. in his or her own right—through an ex- tension of the birthing hospital stay § 732.15 Unauthorized care. because of complications, transfer to The following are not authorized by another facility, or subsequent admis- this part: sion—the provisions of part 728 of this (a) Chiropractic services. chapter and NAVMEDCOMINST 6320.18 (b) Vasectomies. are applicable, and the sponsor be- (c) Tubal ligations. comes responsible for a part of the (d) Breast augmentations or reduc- medical expenses incurred. tions. (c) Dental. (1) With prior approval, (e) Psychiatric care, beyond the ini- the following may be provided: tial evaluation. (i) All types of treatment (including (f) Court ordered care. operative, restorative, and oral sur- (g) Contact lenses. gical) to relieve pain and abort infec- (h) Other elective procedures. tion. (ii) Prosthetic treatment to restore § 732.16 Emergency care requirements. extensive loss of masticatory function Only in a bona fide emergency will or the replacement of anterior teeth medical, maternity, or dental services for esthetic reasons. be obtained under this part by or on be- (iii) Repair of existing dental pros- half of eligible personnel without prior theses when neglect of the repair would authority as outlined below. result in unserviceability of the appli- (a) Medical or dental care. A situation ance. where the need or apparent need for (iv) Any type of treatment adjunctive medical or dental attention does not to medical or surgical care. permit obtaining approval in advance. (v) All x-rays, drugs, etc., required (b) Maternity care. When a condition for treatment or care in paragraphs commences or exacerbates during preg- (c)(1) (i) through (iv) of this section. nancy in a manner that a delay, caused (2) In emergencies (no prior ap- by referral to a USMTF or USTF, proval), only measures appropriate to would jeopardize the welfare of the relieve pain or abort infection are au- mother or unborn child, the following thorized. constitutes indications for admission (d) Eye refractions and spectacles. In- to or treatment at a non-Federal facil- cludes refractions of eyes by physicians ity: and optometrists and furnishing and (1) Medical or surgical conditions repairing spectacles. which would constitute an emergency (1) Refractions. A refraction may be in the nonpregnant state. obtained from a civilian source at Gov- (2) Spontaneous abortion, with first ernment expense only when Federal fa- trimester hemorrhage. cilities are not available, no suitable (3) Premature or term labor with de- prescription is in the member’s Health livery. Record, and the cognizant OMA or re- (4) Severe pre-eclampsia. ferring USMTF has given prior ap- (5) Hemorrhage, second and third tri- proval. mester. (2) Spectacles. When a member has no (6) Ectopic pregnancy with cardio- suitable spectacles and the lack there- vascular instability. of, combined with the delay in obtain- (7) Premature rupture of membrames ing suitable ones from a Federal source with prolapse of the umbilical cord. would prevent performance of duty; re- (8) Obstetric sepsis. pair, replacement, or procurement (9) Any other obstetrical condition from a civilian source may be author- that, by definition, constitutes an ized upon initiation of an after-the-fact emergency circumstance.
344
VerDate 25
§ 732.17 Nonemergency care require- vidual prior approval, adjudication au- ments. thorities will ensure that: Members are cautioned not to obtain (i) Each blanket approval letter nonemergency care from civilian specifies a maximum dollar amount al- lowable in each instance of care. sources without prior approval from (ii) The location of the activity re- the cognizant adjudication authority ceiving blanket approval authority is in § 732.20. Obtaining nonemergency clearly delineated. care, other than as specified herein, (iii) Travel distance and time re- without documented prior approval quired to reach the nearest USMTF, may result in denial by the Govern- USDTF, designated USTF, or VA facil- ment of responsibility for claims aris- ity have been considered. ing from such care. (iv) Certain conditions are specifi- (a) Individual prior approval. (1) Sub- cally excluded, e.g., psychiatric care mit requests for prior approval of non- and elective surgical procedures. These emergency care (medical, dental, or conditions will continue to require in- maternity) from non-Federal sources dividual prior approval. to the adjudication authority (§ 732.20) (v) COMNAVMEDCOM (MEDCOM- serving the geographic area where care 333) is made an information addressee is to be obtained. When the require- on each letter of authorization. ments of § 732.14(d)(2) are met and spec- (c) Maternity care. (1) Pregnant active tacles have been obtained, request duty members residing outside Mili- after-the-fact approval per this para- tary Health Services System (MHSS) graph. inpatent catchment areas of uniformed (2) Submit requests on a NAVMED services facilities (including USTFs), 6320/10. Statement of Civilian Medical/ designated in Volumes I, II, and III of Dental Care, with blocks 1 through 7 MHSS Catchment Area Directories, are and 19 through 25 completed. Assist- permitted to choose whether to deliver ance in completing the NAVMED 6320/ in a closer civilian hospital or travel to 10 can be obtained from the health ben- a USMTF or USTF for delivery. If the efits advisor (HBA) at the nearest Government is to assume financial re- USMTF. sponsibility for non-Federal maternity (3) Upon receipt, the adjudication au- care of any member regardless of where thority will review the request and, if she resides, the member must obtain necessary, forward it to the appro- individual prior approval as outlined in priate chief of service with an expla- paragraph (a) of this section. Adjudica- nation of non-Federal care regulations tion authorities should not approve re- pertaining to the request. The chief of quests from members residing within service will respond to the request an inpatient MHSS catchment area un- within 24 hours. The adjudication au- less: thority will then complete blocks 26 (i) Capability does not (did not) exist and 27, and return the original of the at the USMTF or other Federal MTF approved/disapproved NAVMED 6320/10 serving her catchment area. to the member. (ii) An emergency situation neces- (b) Blanket prior approval. (1) Recruit- sitated delivery or other treatment in ing offices and other activities far re- a non-Federal facility (§ 732.16(b)). moved from USMTFs, uniformed serv- (2) Normal delivery at or near the ex- ices dental treatment facilities pected delivery date should not be con- (USDTFs), designated USTFs, and VA sidered an emergency for members re- facilities may request blanket approval siding within an MHSS inpatient for civilian medical and dental care of catchment area where delivery was ex- assigned active duty personnel. Letter pected to occur and, unless provided for requests should be submitted to the ad- in this part, will not be reason for de- judication authority (§ 732.20) assigned livery in a civilian facility at Govern- responsibility for the geographic area ment expense. of the requestor. (3) When granted leave that spans the (2) With full realization that such period of an imminent delivery, the blanket approval is an authorization to pregnant member should request a obligate the Government without indi- copy of her complete prenatal care
345
VerDate 25
records from the prenatal care physi- use of the Nonnaval Medical and Den- cian. The physician should note in the tal Care Program, the member must be record whether the member is clear to counseled by, or in the presence of, a travel. If receiving prenatel care from Medical Department officer. Request a USMTF, the HBA will assist the that the member sign a statement on member in obtaining a statement bear- an SF 600, Chronological Record of ing the name of the MTF (may be an Medical Care, or an SF 603 or 603A, OMA) with administrative responsibil- Health Record, Dental as appropriate, ity for the geographic area of her leave for inclusion in the member’s Health address, including the telephone num- Record. The statement must specify ber of the head of the patient adminis- that counseling has been accomplished, tration department or HBA, if avail- and that the member understands the able. If a member is receiving prenatal significance of receiving unauthorized care from other than a USMTF, she civilian care. This must be accom- should avail herself of the services of plished when either personal funds or the nearest HBA to effect the third party payor (insurance) funds are aforestated services. This statement intended to be used to defray the cost should be attached to the approved of care. Counseling will include: leave request. In normal deliveries, re- (i) Availability of care from a Fed- quests for after-the-fact approval eral source. should be denied when members have (ii) The requirement for prior ap- not attempted to adhere to the provi- proval if the Government may be ex- sions of this part. pected to defray any of the cost of such (4) Upon arrival at the designated care. leave address, members should contact (iii) Information regarding possible the MTF indicated on the statement compromise of disability benefits attached to their leave request. The should a therapeutic misadventure MTF will make a determination wheth- occur. er the member’s leave address falls (iv) Notification that should hos- within the inpatient catchment area of pitalization become necessary, or other a USMTF or USTF with the capability time is lost from the member’s place of of providing needed care. If no such duty, such lost time may be chargeable USMTF or USTF exists, the member as ‘‘ordinary leave.’’ will be given the opportunity to choose (v) Notification that the Government to deliver in a civilian hospital closer cannot be responsible for out-of-pocket to her leave address or travel to the expenses which may be required by the most accessible USMTF or USTF with insurance carrier or when the member capability for maternity care. does not have insurance which covers (5) Upon determination that civilian the cost of contemplated care. sources will be used for maternity care, (vi) Direction to report to a uni- the MTF listed on the attachment to formed services medical officer (pref- the leave papers will inform the mem- erably Navy) upon completion of treat- ber that she (or someone acting in her ment for determination of member’s behalf) must notify that MTF of the fitness for continued service. member’s admission for delivery or (2) If it becomes known that a mem- other inpatient care so that medical ber has already received non-Federal cognizance can be initiated. medical care without prior authoriza- (6) Automatically grant prior or ret- tion, refer the member to a uniformed roactive approval, as the situation war- services medical officer (preferably rants, to members requiring maternity Navy) to determine fitness for contin- care while in a travel status in the exe- ued service. At this time, counseling cution of permanent change of station measures delineated in paragraph (PCS) orders. (d)(1)(iii), (iv), and (v) of this section (d) Nonemergency care without prior must be taken. approval. (1) If it becomes known that a member intends to seek medical or § 732.18 Notification of illness or in- dental care (inpatient or outpatient) jury. from a non-Federal source and prior (a) Member’s responsibility. (1) If able, approval has not been granted for the members must notify or cause their
346
VerDate 25
parent command, the nearest naval ac- being treated in a nonnaval facility, tivity, or per OPNAVINST 6320.6, the adjudication authorities must make nearest U.S. Embassy or consulate the notifications required in when hospitalized in a foreign medical MILPERSMAN, article 4210100.11. See facility to be notified as soon as pos- part 728 of this chapter on message sible of the circumstances requiring drafting and information addressees. medical or dental attention in a non- (1) Article 4210100.11 of the Federal facility. The member will also MILPERSMAN requires submission of assure (request the facility to make no- a personnel casualty report, by priority tification if unable to do so personally) message, to the primary and secondary that the following information is next of kin (PNOK/SNOK) of Navy passed to the adjudication authority members seriously or very seriously ill serving the area of the source of care or injured, and on those terminally ill (§ 732.20). This notification is in addi- (diagnosed and confirmed). While sub- tion to the requirements of article mission of the personnel casualty re- 4210100 of the Military Personnel Com- port to the PNOK and SNOK is a re- mand Manual (MILPERSMAN) or Ma- rine Corps Order 6320.3B, as appro- sponsibility of the member’s command, priate. The adjudication authority will adjudication authorities must advise then arrange for transfer of the mem- the member’s command when such a ber and, if appropriate, newborn in- member is being treated or diagnosed fant(s), to a Federal facility or for such by non-Federal sources. The message other action as is appropriate. will also request forwarding of the (i) Name, grade or rate, and social se- member’s service and medical records curity number of patient. to the personnel support detachment (ii) Name of non-Federal medical or (PSD) supporting the activity in which dental facility rendering treatment. the OMA is located. Additionally, the (iii) Date(s) of such treatment. notification should contain a request (iv) Nature and extent of treatment for appropriate orders, either tem- or care already furnished. porary additional duty (TEMADD) or (v) Need or apparent need for further temporary duty (TEMPDU). treatment (for maternity patients, (i) Request TEMADD orders if care is need or apparent need for further care expected to terminate within the time of infant(s) also). constraints imposed for these orders. (vi) Earliest date on which transfer (ii) Request TEMDU Under Treat- to a Federal facility can be effected. ment orders for members hospitalized (vii) Telephone number of attending in a NMTF within the adjudication physician and patient. authority’s area of responsibility. (2) Should movement be delayed due (2) Make prompt message notifica- to actions of the member or the mem- tion to the member’s commanding offi- ber’s family, payment may be denied cer when apprised of any medical con- for all care received after provision of dition, including pregnancy, which will written notification by the adjudica- now or in the foreseeable future result tion authority. in loss of a member’s full duty services (3) The denial is § 732.18(a)(2) will be in excess of 72 hours. Mark the message for care received after the member’s ‘‘Commanding Officer’s Eyes Only.’’ condition has stabilized and after the cognizant adjudication authority has § 732.19 Claims. made a request to the attending physi- cian and hospital administration for (a) Member’s responsibility. Members the member’s release from the civilian receiving care are responsible for prep- facility. This notification must specify: aration and submission of claims to the (i) Date and time the Navy will ter- cognizant adjudication authority iden- minate its responsibility for payment. tified in § 732.20. A complete claim in- (ii) That care rendered subsequent to cludes: receipt of the written notification is at (1) NAVMED 6320/10, Statement of Ci- the expense of the member. vilian Medical/Dental Care. In addition (b) Adjudication authority. As soon as to its use as an authorization docu- it is ascertained that a member is ment, the original and three copies of a
347
VerDate 25
NAVMED 6320/10 are required to adju- (4) Notice of eligibility (NOE) and line dicate claims in each instance of sick- of duty (LOD) determination. When a re- ness, injury, or maternity care when servist claims benefits for care re- treatment is received from a non-Fed- ceived totally after the completion of eral source under the provisions of this either an active duty or active duty for part. The form should be prepared by a training period, the claim should also naval medical or dental officer, when include: practicable, by the senior officer (i) An NOE issued per SECNAVINST present where a naval medical or den- 1770.3. tal officer is not on duty, or by the (ii) An LOD determination from the member receiving care when on de- member’s commanding officer. tached duty where a senior officer is (b) Adjudicating authority’s responsibil- not present. ity. Reviewing and processing properly (i) For nonemergency care with prior completed claims and forwarding ap- approval, submit the NAVMED 6320/10 proved claims to the appropriate dis- containing the prior approval, after bursing office should be completed completing blocks 8 through 18. within 30 days of receipt. Advice may (ii) For emergency care (or non- be requested from COMNAVMEDCOM emergency care without prior ap- (MEDCOM–333 (A/V 294–1127)) for medi- proval), submit a NAVMED 6320/10 cal or MEDCOM–06 (A/V 294–1250)) for after completing blocks 1 through 18. dental on unusual or questionable in- Assure that the diagnosis is listed in stances of care. Advise claimants of block 10. If prior approval was not ob- any delay experienced in processing tained, state in block 11 circumstances claims. necessitating use of non-Federal facili- (1) Review. The receiving adjudication ties. authority will carefully review each (iii) Signature by the member in claim submitted for payment or reim- block 17 implies agreement for release bursement to verify whether: of information to the responsible adju- (i) Claimant was entitled to benefits dication authority receiving the claim (i.e., was on active duty, active duty for processing. Signature by the cer- for training, inactive duty training, tifying officer in block 18 will be con- was not an unauthorized absentee, sidered certification that documenta- etc.). As required by part 728 of this tion has been entered in the member’s chapter, a Defense Enrollment Eligi- Health Record as directed in article 16– bility Reporting System (DEERS) eli- 24 of MANMED. gibility check must be performed on (2) Itemized bills. The original and claims to all claimants required to be three copies of itemized bills to show: enrolled in DEERS. (i) Dates on or between which serv- (ii) Care rendered was due to a bona ices were rendered or supplies fur- fide emergency. (NOTE: When questions nished. arise as to the emergency nature of (ii) Nature of and charges for each care, forward the claim and all sup- item. porting documentation to the appro- (iii) Diagnosis. priate clinical specialist at the nearest (iv) Acknowledgment of receipt of naval hospital for review.) the services or supplies on the face of (iii) Prior approval was granted if a the bill or by separate certificate. The bona fide emergency did not exist. acknowledgment must include the (NOTE: If prior approval was not ob- statement. ‘‘Services were received and tained and the condition treated is de- were satisfactory.’’ termined to have been nonemergent, (3) Claims for reimbursement. To effect the claim may be denied.) Consider- reimbursement, also submit the origi- ation should always be given to cases nal and three copies of paid receipts that would have received prior ap- and an SF 1164. Claim for Reimburse- proval but, due to lack of knowledge of ment for Expenditures on Official Busi- the program, the member did not sub- ness, completed per paragraphs 046377– mit a request. 2 a and b of the Naval Comptroller (iv) Care rendered was authorized Manual (NAVCOMPT MAN). under the provisions of this part.
348
VerDate 25
(v) Care rendered was appropriate for specially established by the Veterans the specific condition treated. (NOTE: Administration, CHAMPUS, or those When questions arise regarding appro- used in Medicare are not controlling, priateness of care, forward all docu- they should be considered along with mentation to a clinical specialist at other facts. the nearest naval hospital for review. If (1) Excessive charges. If any charge is care is determined to have been inap- excessive, the adjudication authority propriate, the claim may be denied to will advise the provider of care of the the extent the member was negligent.) conclusion reached and afford the pro- (vi) Claimed benefits did not result vider an opportunity to voluntarily re- from a referral by a USMTF. If the duce the amount of the claim. If this member was an inpatient or an out- does not result in a proper reduction patient in a USMTF immediately prior and the claim is that of a physician or to being referred to a civilian source of dentist, refer the difference in opinions care, the civilian care is supplemental to the grievance committee of the pro- and may be the responsibility of the re- vider’s professional group for an opin- ferring USMTF. See § 732.11(p) for the ion of the reasonableness of the charge. definition of supplemental care. If satisfactory settlement of any claim (2) Dispproval. If a determination is cannot thus be made, forward all docu- made to disapprove a claim, provide mentation to COMNAVMEDCOM the member (and provider of care, when (MEDCOM–333) for decision. Charges applicable) a prompt and courteous let- determined to be above the allowed ter stating the reason for the dis- amount or charges for unauthorized approval and the appropriate avenues services are the responsibility of the of appeal as outlined in § 732.24. service member. (3) Processing. Subpart C contains the (2) Third party payment. Do not with- chargeable accounting classifications hold payment while seeking funds from and Standard Document Numbers health benefit plans or from insurance (SDN) to be cited on the NAVCOMPT policies for which premiums are paid 2277, Voucher for Disbursement and/or privately by service members (see Collection, on an SF 1164 submitted per § 732.22 for possible recovery of pay- paragraph (a)(3) of this section, and on ments action). supporting documents of approved claims before submission to disbursing (3) No-fault insurance. In States with offices. no-fault automobile insurance require- (i) For payment to providers of care, ments, adjudication authorities will a NAV COMPT 2277 will be prepared notify the insurance carrier identified and certified approved for payment by in item 16 of the NAVMED 6320/10 that the adjudicating authority. This form Federal payment of the benefits in this must accompany the NAVMED 6320/10 part is secondary to any no-fault insur- and supporting documentation per ance coverage available to the poten- paragraph 046393–1 of the tially covered member. NAVCOMPTMAN. (d) Duplicate payments. Adjudication (ii) Where reimbursement is re- authorities and disbursing activities quested, the SF 1164 submitted per should take precautions against dupli- § 732.19(a)(3) will be completed, per cate payments per paragraph 046073 of paragraph 046377 of the the NAVCOMPTMAN. NAVCOMPTMAN, and certified ap- proved for payment by the adjudicating § 732.20 Adjudication authorities. authority. This form must accompany (a) General. Controlling activities for the NAVMED 6320/10 and supporting medical care in the United States are documentation. designated as ‘‘offices of medical af- (c) Amount payable. Amounts payable fairs’’ (OMA) and for dental care, ‘‘of- are those considered reasonable after fices of dental affairs’’ (ODA). taking into consideration all facts. NAVMEDCOMINST 6010.3 delineates Normally, payment should be approved responsibilities and functional tasks of at rates generally prevailing within the OMAs and ODAs, including monthly re- geographic area where services or sup- porting of receipt of claims and claims plies were furnished. Although rates payment. Commanders of geographic
349
VerDate 25
naval medical commands must commu- (4) Southeast Region. For the States of nicate with all activities in their re- Alabama, Arkansas, Florida, Georgia, gions to ensure that messages and med- Louisiana, Mississippi, Oklahoma, Ten- ical cognizance reports are properly nessee, and Texas, medical and dental furnished per higher authority direc- responsibilities are vested in: Com- tives. manding Officer, Naval Medical Clinic, (b) Within the United States (less Ha- Code O1A, New Orleans, LA 70146, Tele: waii). For the 48 contiguous United (A/V) 485–2406/7/8 or (C) (504) 361–2406 States, the District of Columbia, and 2407 or 2408. Alaska, the following six regions are (5) Southwest Region. For the States responsible for care rendered or to be of Arizona and New Mexico; the coun- rendered within their areas of respon- ties of Kern, San Bernadino, San Luis sibility. Obispo, Santa Barbara, and all other (1) Northeast Region. The States of California counties south thereof; the Connecticut, Delaware, Illinois, Indi- community of Bridgeport, California ana, Iowa, Kentucky, Maine, Massa- (Marine Corps cold-weather training chusetts, Michigan, Minnesota, Mis- site); and Nevada, except for NAS souri, New Hampshire, New Jersey, Fallon and its immediate area; medical New York, Ohio, Pennsylvania, Rhode and dental responsibilities are vested Island, Vermont, and Wisconsin are in: Commander, Naval Medical Com- served by 1 ODA and 1 OMA: mand, Southwest Region, Office of Medical Affairs, San Diego, CA 92134– (i) Responsibility for dental matters 7000, Tele: (A/V) 987–2611 or (C) 233–2611. for States in the Northeast Region is (6) Northwest Region. The States of vested in: Commander, Naval Medical Alaska, Colorado, Idaho, Kansas, Mon- Command, Northeast Region, Office of tana, Nebraska, North Dakota, Oregon, Dental Affairs, Great Lakes, IL 60088, South Dakota, Utah, Washington, and Tele: (A/V) 792–3940 or (C) (312) 688–3940. Wyoming; the counties of Inyo, Kings, (ii) Responsibility for medical mat- Tulare, and all other counties of Cali- ters for States in the Northeast Region fornia north thereof; and NAS Fallon, is vested in: Commander, Naval Medi- Nevada and its immediate area are cal Command, Northeast Region, Office served by 2 OMAs and 1 ODA: of Medical Affairs, Great Lakes, IL (i) Responsibility for dental matters 60088, Tele: (A/V) 792–3950 or (C) (312) for the area of responsibility of the 688–3950. Northwest Region is vested in: Com- (2) National Capital Region. For the mander, Naval Medical Command, States of Maryland and West Virginia; Northwest Region, Office of Dental Af- the Virginia counties of Arlington, fairs, Oakland, CA 94267–5025, Tele: (A/ Fairfax, Loudoun, and Prince William; V) 855–6200 or (C) (415) 633–6200. the Virginia cities of Alexandria, Falls (ii) Responsibility for medical mat- Church, and Fairfax; and the District ters for the States of Colorado, Kansas, of Columbia, responsibility for medical and Utah; the California counties of and dental matters is vested in: Com- Inyo, Kings, Tulare, and all other coun- mander, Naval Medical Command, Na- ties of California north thereof; and tional Capital Region, Office of Medical NAS Fallon, Nevada and its immediate Affairs, Bethesda, MD 20814, Tele: (A/V) area is vested in: Commander, Naval 295–5322 or (C) (301) 295–5322. Medical Command, Northwest Region, (3) Mid-Atlantic Region. For the Oakland, CA 94627–5025, Attn: Office of States of North Carolina, South Caro- Medical Affairs, Tele: (A/V) 855–5705 or lina, and all areas of Virginia south (C) (415) 633–5705. and west of Prince William and (iii) Responsibility for medical mat- Loudoun counties, responsibility for ters for the States of Alaska, Idaho, medical and dental matters is vested Montana, Nebraska, North Dakota, Or- in: Commander, Naval Medical Com- egon, South Dakota, Washington, and mand, Mid-Atlantic Region, 6500 Hamp- Wyoming is vested in: Commanding Of- ton Boulevard, Norfolk, VA 23502, Attn: ficer, Naval Medical Clinic, Naval Sta- Office of Medical/Dental Affairs, Tele: tion, Seattle, WA 98115, Attn: Office of (A/V) 565–1074/1075 or (C) (804) 445–1074 Medical Affairs, Tele: (A/V) 941–3823 or or 1075. (C) (206) 526–3823.
350
VerDate 25
(c) Outside the United States (plus Ha- (9) The OMA for either the Southeast waii). For all areas outside the United Region or the Southwest Region for States plus Hawaii, the following ac- care rendered in Mexico to members tivities are vested with responsibility stationed within the respective areas of for approval or disapproval of requests responsibility of these OMAs. Forward and claims for maternity, medical, and claims for care rendered in Mexico to dental care: all other personnel to Commander, (1) Executive Director, Naval Medical Command, Washington, OCHAMPUSEUR, U.S. Army Medical DC 20372–5120 (MEDCOM–333). Command, APO New York 09102, for (10) Commander, Naval Medical Com- care rendered within the U.S. European mand, Washington, DC 20372–5120 Command, Africa, the Malagasy Repub- (MEDCOM–333) for inpatient and out- lic, and the Middle East. patient emergency and nonemergency (2) Commanding Officer, U.S. Naval care of active duty Navy and Marine Hospital, FPO San Francisco 96652–1600 Corps members in Canada and under (U.S. Naval Hospital, Subic Bay, the circumstances outlined in para- Luzon, Republic of the Philippines), for graph (d) of this section. care rendered in Afghanistan, Ban- (11) Outside the 50 United States, gladesh, Hong Kong, India, Nepal Paki- commanding officers of operational stan, the Philippines, Southeast Asia, units may either approve claims and Sri Lanka and Taiwan. direct payment by the disbursing offi- (3) Commanding Officer, U.S. Naval cer serving the command or forward Hospital, FPO Seattle 98765–1600 (U.S. claims to the appropriate naval medi- Naval Hospital, Yokosuka, Japan), for cal command in paragraphs (b)(1) care rendered in Japan, Korea, and through (c)(9) of this section. This is a Okinawa. local policy decision to enhance the (4) Commanding Officer, U.S. Naval maintenance of good public relations. Hospital, FPO San Francisco 96630–1600 (12) The appropriate command in (U.S. Naval Hospital, Guam, Mariana paragraphs (b)(1) through (c)(9) of this Islands), for care rendered in New Zea- section for care rendered aboard com- land and Guam. mercial vessels en route to a location (5) Commanding Officer, U.S. Naval within the geographic areas listed. Communications Station, FPO San (13) The commanding officer author- Francisco 96680–1800 (U.S. Naval Com- izing care in geographical areas not munications Station, Harold E. Holt, specifically delineated elsewhere in Exmouth, Western Australia), for care this section. rendered in Australia. (d) The Commander, Naval Medical (6) Commanding Officer, U.S. Naval Command (MEDCOM–333), Navy Depart- Air Station, FPO New York 09560 (U.S. ment, Washington, DC 20372–5120. Under Naval Air Station, Bermuda), for care the following circumstances, respon- rendered in Bermuda. sibility is vested in COMNAVMEDCOM (7) Commanding Officer, U.S. Naval for adjudication of claims: Hospital, FPO Miami 34051 (U.S. Naval (1) For reservists who receive treat- Hospital, Roosevelt Roads, Puerto ment after completion of their active Rico), for maternity and medical care, duty or inactive duty training as pre- and Commanding Officer, U.S. Naval scribed in § 732.12(b). Dental Clinic, FPO Miami 34051 (U.S. (2) For care rendered in Mexico to Naval Dental Clinic, Roosevelt Roads, personnel stationed outside the areas PR), for dental care rendered in Puerto of responsibility of the Southeast and Rico, the Virgin Islands, and other Car- Southwest Regions. ibbean Islands. (3) For care rendered to members sta- (8) Commanding Officer, Naval Medi- tioned in or passing through countries cal Clinic, Box 121, Pearl Harbor, HI in Central and South America. 96860, for maternity and medical care, (4) For outpatient care rendered and Commanding Officer, Naval Dental NATO active duty members. Clinic, Box 111, Pearl Harbor, HI 96860, (5) When Departmental level review for dental care rendered in the State of is required prior to approval, adjudica- Hawaii, Midway Island, and the Central tion, or payment. These claims: Pacific basin. (i) Will be considered on appeal.
351
VerDate 25
(ii) Must be forwarded by the member medical payments insurance (all auto- through the adjudication authority mobile accident cases). chain of command (In instances of un- (a) To assist in identifying possible usual or controversial denial of claims, third party liability cases, item 16 of the adjudication authority may for- each NAVMED 6320/10 must be com- ward claims to COMNAVMEDCOM on pleted whenever benefits are received appeal, via the chain of command, with in connection with a vehicle accident. notification to the member.). Adjudication authorities should return (6) For all inpatient and outpatient for completion, as applicable, any care of active duty Navy and Marine claim received without item 16 com- Corps members stationed in the United pleted. States who receive care in Canada. (b) The front of a NAVJAG Form 5890/12 (Hospital and Medical Care, 3rd § 732.21 Medical board. Party Liability Case) must be com- When adjudication authorities un- pleted and submitted by adjudication cover conditions which may be chronic authorities with evidence of payment. or otherwise potentially disabling, Block 4 of this form requires an ap- they should make a determination pended statement of the patient or an (with help from appropriate clinical accident report, if available. To ensure specialists) as to the need for a medical that Privacy Act procedures are ac- board. Chapter 18 of MANMED and complished and documented, the per- Medical Disposition and Physical son securing such a statement from a Standards Notes, available from recipient of care must show the recipi- COMNAVMEDCOM (MEDCOM–25), pro- ent the Privacy Act statement printed vide guidance. at the bottom of the form prior to se- curing such a statement. The member (a) Chronic conditions requiring a should be asked to sign his or her name medical board include (but are not lim- beneath the statement. ited to): (c) For care rendered in States with (1) Arthritis, no-fault insurance laws, comply with (2) Asthma, procedures outlined in § 732.19(c)(3). (3) Diabetes, (4) Gout, § 732.23 Collection for subsistence. (5) Heart disease, The Navy Pay and Personnel Proce- (6) Hypertension, dures Manual provides guidance re- (7) Peptic ulcer disease, garding pay account checkage proce- (8) Psychiatric conditions, and dures to liquidate subsistence charges (9) Allergic conditions requiring de- incurred by members entitled to care sensitization. under the provisions of this part. Such (b) Other potentially disabling or members must also be entitled to basic chronic conditions may be referred to a allowance for subsistence (BAS) while medical board by the adjudication au- hospitalized at Government expense. thority with the concurrence of an ap- The responsible activity (the adjudica- propriate naval clinical specialist and tion authority or the naval MTF to the commander of the regional medical which such a member is transferred) command. should follow procedures outlined in the Navy Pay and Personnel Proce- § 732.22 Recovery of medical care pay- dures Manual when an eligible officer ments. or enlisted member of the naval service Adjudication authorities must sub- is subsisted at Department of the Navy mit evidence of payment to the action expense while hospitalized in a JAG designee per chapter 24 of the nonnaval treatment facility. Subpart C Manual of the Judge Advocate General contains the creditable accounting (JAGMAN), in each instance of pay- classification for inpatient subsistence ment where a third party may be le- collections. gally liable for causing the injury or disease treated, or when a Government § 732.24 Appeal procedures. claim is possible under workers com- When a claim for care or a request pensation, no-fault insurance, or under for prior approval for nonemergency
352
VerDate 25
care is initially denied by an adjudica- adjudication authority which upheld tion authority, the member may appeal the initial denial on reconsideration. the denial as outlined below. Any level (c) Level III—Consideration by in the appeal process may over-rule the COMNAVMEDCOM (MEDCOM–333). previous decision and order payment of the claim in whole or in part or grant the request for prior approval of care. Subpart C—Accounting Classi- (a) Level I—Reconsideration by the fications for Nonnaval Medi- adjudication authority making the ini- cal and Dental Care Ex- tial denial. The member should submit penses and Standard Docu- any additional information that may ment Numbers mitigate the initial denial. (b) Level II—Consideration by the § 732.25 Accounting classifications for commander of the regional medical nonnaval medical and dental care command having cognizance over the expenses.
Sub- OBJ.** Approp. Head Class BCN SA AAA TT PAA Cost Code Purpose
17*1804 188M 000 00018 M 000179 2D MDQ000 990010000MDQ Outpatient Care Service Expenses.1 2 17*1804 188M 000 00018 M 000179 2D MDT000 990010000MDT Outpatient Care Supply Expenses.1 3 17*1804 188M 000 00018 M 000179 2D MDE000 990010000MDE Ambulance Ex- penses.1 17*1804 188M 000 00018 M 000179 2D MDQI00 990020000MDQ Inpatient Care Service Ex- pense.1 2 17*1804 188M 000 00018 M 000179 2D MDTI00 990020000MDT Inpatient Care Supply Ex- penses.1 3 17*1804 188M 006 00018 M 000179 3C MDZI00 990020000MDZ Inpatient Sub- sistence Col- lections.1 Notes: *For the third digit of the appropriation, enter the last digit of the fiscal year current at the time claim is ap- proved for payment. **Refer to NAVCOMPT Manual par. 027003 for appropriate Expenditure Category Codes when disburse- ment or collection involves a foreign or U.S. Contractor abroad. 1 Not applicable when care is procured from non-DOD sources for a patient receiving either inpatient or out- patient care at a naval medical facility. In such instances, the expenses incurred are payable from operations and maintenance funds available for support of the naval medical facility. 2 Service expenses include: hospital, emergency room clinic, office fees; physician and dentist professional fees; laboratory, radiology, operating room, anesthesia, physical therapy, and other services provided. 3 Supply expenses include: medications and pharmacy charges; IV solutions; whole blood and blood prod- ucts; bandages; crutches; prosthetic devices; needles and syringes; and other supplies provided.
§ 732.26 Standard document numbers. Collection), NAVCOMPT 1164 (Claim Adjudication authorities will assign for Reimbursement for Expenditures on to each claim approved for payment, a Official Business) and on all other doc- unique 15 position alpha/numeric umentation accompanying claims. standard document number (SDN). Compose SNDs per the following exam- Prominently display this number on ple: N0016887MD00001 or the NAVMED 6320/10, the NAVCOMPT N0016887RV00001. 2277 (Voucher for Disbursement and/or
353
VerDate 25
1 2 thru 6 7 & 8 9 & 10 11 thru 15 Position Entry MD or N 00168 87 RV 00001
Position Data entry
1 ...... ``N'' identifies Navy. 2 thru 6 ...... Unit Identification Code of document issuing activity. 7 and 8 ...... Last two digits of the fiscal year in which the claim is approved for payment. 9 and 10, ...... For NAVCOMPT 2277s, ``MD'' identifies the document as Miscellaneous Finan- cial Document. or, 9 and 10 ...... For SF 1164s, ``RV'' identifies the document as a Reimbursement Voucher. 11 thru 15 ...... Consecutively assigned five digit serial number beginning with ``00001'' each fis- cal year. Each subsequent claim will then be serially numbered ``00002'', ``00003'', etc.
PART 733—ASSISTANCE TO AND of the child or judicially ordered to SUPPORT OF DEPENDENTS; PA- contribute to the child’s support, or TERNITY COMPLAINTS whose parentage has been admitted in writing by the member) who either: Sec. (i) Is under 21 years of age; or 733.1 Rates of basic allowance for quarters. (ii) Is incapable of self-support be- 733.2 Delegations. cause of a mental or physical incapac- 733.3 Information and policy on support of ity, and in fact dependent on the mem- dependents. ber for over one-half of his or her sup- 733.4 Complaints of nonsupport and insuffi- port; and cient support of dependents. 733.5 Determination of paternity and sup- (3) His or her parent (including a port of illegitimate children. stepparent or parent by adoption, and any person, including a former step- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031; 37 parent, who has stood in loco parentis U.S.C. 101, 401, 403; 50 U.S.C. App. 2210; E.O. 11157, 29 FR 7973, 3 CFR 1964 Supp. p. 139, as to the member at any time for a con- amended. tinuous period of at least 5 years before he or she became 21 years of age) who SOURCE: 44 FR 42190, July 19, 1979, unless is in fact dependent on the member for otherwise noted. over one-half of his or her support; § 733.1 Rates of basic allowance for however, the dependency of such a par- quarters. ent is determined on the basis of an af- fidavit submitted by the parent and (a) Except as otherwise provided by any other evidence required under reg- law, a member of the naval service en- ulations prescribed by the Secretary of titled to basic pay is entitled to a basic the Navy, and he or she is not consid- allowance for quarters at the monthly ered a dependent of the member claim- rates according to the pay grade to ing the dependency unless: which he or she is assigned, in accord- ance with 37 U.S.C. 403. (i) The member has provided over (b) The term ‘‘dependent’’ with re- one-half of his or her support for the spect to a member of the naval service, period prescribed by the Secretary; or as used in this part, means: (ii) Due to changed circumstances (1) His or her spouse; arising after the member enters on ac- (2) His or her unmarried child (in- tive duty, the parent becomes in fact cluding any of the following categories dependent on the member for over one- of children if such child is in fact de- half of is or her support. pendent on the member: A stepchild; The relationship between a stepparent an adopted child; or an illegitimate and his or her stepchild is terminated child whose alleged member-parent has by the stepparent’s divorce from the been judicially decreed to be the parent parent by blood.
354
VerDate 25
§ 733.2 Delegations. other financial obligations of the mem- The Director, Navy Family Allow- ber in relation to his or her income. ance Activity, Anthony J. Celebrezze The Department of the Navy does not Federal Building, Cleveland, OH 44199, and cannot act as a court in these mat- with respect to personnel of the Navy, ters. It is desired that the amount of and the Head, Personal Affairs Branch, support to be provided for dependents Manpower Department, Headquarters either be established by mutual under- United States Marine Corps, Washing- standing between the parties concerned ton, DC 20380, with respect to personnel or adjudicated in the civil courts. The of the Marine Corps, have been granted support scales set forth below are not the authority by the Secretary of the intended as a fixed rule. They are in- Navy to make determinations includ- tended as guidelines and the actual ing determinations of dependency and support may be increased or decreased relationship when required by legisla- as the facts and circumstances warrant tion or policy for eligibility for basic until the amount of support to be fur- allowance for quarters, transportation nished is settled by agreement of the and medical care in behalf of depend- parties or adjudicated by the civil ents of Navy and Marine personnel and courts. Because of the inherent arbi- to administer matters involving ade- trary and temporary nature of the sup- quacy of support for dependents and port scales set forth below, it is not in- waivers of support of a spouse, and on tended that they be used as bases for the basis of new evidence or for other any judicial proceedings, for to do so good cause to reconsider or modify any would lend excessive credence to ad- such determination. ministrative tools which have been de- signed for use only within the Navy § 733.3 Information and policy on sup- and the Marine Corps. port of dependents. (i) Number of dependents and amount (a) Policy—(1) General. The naval of support to be provided in the ab- service will not be a haven or refuge for sence of a mutual agreement or court personnel who disregard or evade their order: obligations to their families. All mem- (A) Navy members: bers of the naval service are expected Support to be to conduct their personal affairs satis- Relationship and number of dependents provided factorily. This includes the require- (gross pay) ment that they provide adequate and Spouse only ...... 1¤3 continuous support for their lawful de- Spouse and one minor child ...... 1¤2 pendents and comply with the terms of Spouse and two or more children ...... 3¤5 separation agreements and court or- One minor child ...... 1¤6 1 ders. Failure to do so which tends to Two minor children ...... ¤4 Three minor children ...... 1¤3 bring discredit on the naval service is a proper subject of command consider- For purposes of this support guide, ation for initiation of court-martial gross pay will include basic pay and proceedings or other administrative or basic allowance for quarters, but does disciplinary action. not include hazardous duty pay, sea or (2) Adequacy of support. Every mem- foreign duty pay, incentive pay, or ber has an inherent natural and moral basic allowance for subsistence. obligation to support his or her spouse (B) Marine Corps members. If the ques- and family. What is adequate and rea- tion of support is in dispute, the fol- sonably sufficient support is a highly lowing will be used as a guide for sup- complex and individual matter depend- port: ent on numerous factors, and may be resolved permanently only in the civil For spouse only—BAQ plus 20% of basic pay. courts. Salient factors that should be For spouse and one minor child—BAQ plus considered are the pay of the member, 25% of basic pay. any other private income or resources For spouse and two or more minor children— BAQ plus 30% of basic pay. of the member and the dependents, the For one child—1⁄6 of basic pay. cost of necessities and every day living For two minor children—1⁄4 of basic pay. expenses and financial obligations of For three or more minor children—1⁄3 of basic the dependents, and the expenses and pay.
355
VerDate 25
(1) The amount of support to a de- vorce, unless the judicial decree or pendent for whom basic allowance for order specifically negates the obliga- quarters is claimed should not be less tions of the member to support a child than the applicable rate of basic allow- or children of the marriage. The fact ance for quarters to which the member that a divorce decree is silent relative is entitled. to support of minor children or does (2) A Marine’s obligation to provide not mention a child or children will for the support of children by a former not be considered as relieving the serv- marriage has as high a priority as an ice member of the inherent obligation obligation to provide for a present wife to provide support for the child or chil- and family. In those cases of a legiti- dren of the marriage. In many cases, mate financial inability to provide sup- the courts may not be cognizant of the port for all dependents, commanders existence of a child or children, or may shall attempt to assist the Marine in the equitable distribution of income not have jurisdiction over the child or for the assistance of all dependents, children. A commanding officer has utilizing the guidelines set forth above. discretion to withhold action for al- (3) It is to be emphasized that the leged failure to support a child under guidelines set forth are to be used only the following conditions: as an interim measure, and that the (i) Where the member cannot ascer- commander’s decision as to the quan- tain the whereabouts and welfare of tum of support to be provided will be, the child concerned. prima facie, the appropriate conclusion (ii) Where it is apparent that the per- of the Marine Corps, pending civil son requesting support for a child does court or extrajudicial resolution not have physical custody of the child. among the involved parties. (iii) Where the member has been (3) Support of a lawful wife. The laws granted custody of the child by court of jurisdictions in the United States order but does not have physical con- impose a legal obligation upon a hus- trol of the child and the member is band to support his wife. Exemptions ready, willing, and able to care for and from support of a lawful wife may be in support the child if physical control is the form of an order of a civil court of obtained. competent jurisdiction, relinquishment (6) The natural par- by the wife or mutual agreement of the Adopted children. parties, or a waiver of the naval sup- ents of an adopted child are relieved of port requirement granted by the Direc- the obligation to support the child as tor, Navy Family Allowance Activity such duty is imposed on the adoptive or the Commandant of the Marine parents. A Navy or Marine Corps mem- Corps, as appropriate. ber who contemplates the adoption of a (4) Payments of alimony. Dependents child should be aware of the legal obli- for whom basic allowance for quarters gation to provide continuous support or other allowances are payable are de- for such child during minority. fined by law. For purposes of qualifying (7) Entitlement to basic allowance for for basic allowance for quarters, medi- quarters. Entitlement of members to cal care or other benefits, a former basic allowance for quarters on behalf spouse is not a dependent even though of dependents is provided by statute. alimony has been decreed. Members are No member should be denied the right expected to comply with the terms of to submit a claim or application for court orders or divorce decrees which basic allowance for quarters, nor adjudge payments of alimony even should any command refuse or fail to though basic allowance for quarters is forward any such claim or application. not payable. In cases involving parents, the member (5) Support of children. The duty of a should furnish an estimate of the de- member to support his or her minor pendency situation to the best of his or children is not affected by desertion or her knowledge. Commanding officers other misconduct on the part of the spouse. The obligation to support a should not contact parents for depend- child or children is not affected by dis- ency information to include in the solution of the marriage through di- member’s application. This delays the
356
VerDate 25
application and serves no useful pur- spouse (but not children) on the basis pose, as such cases are thoroughly in- of evidence of desertion without cause vestigated by the Navy Family Allow- or infidelity on the part of the spouse. ance Activity or Headquarters Marine The evidence may consist of— Corps, which obtains necessary depend- (i) An affidavit of the service mem- ency affidavits directly from the par- ber, relative, disinterested person, pub- ents. Any person, including a service lic official, or law enforcement officer. member or dependent who obtains an However, affidavits of the service mem- allowance by fraudulent means is sub- ber and relatives should be supported ject to criminal prosecution. by other corroborative evidence. All af- (8) Application of the rule based on fidavits must be based upon the per- Robey v. United States 71 Ct. Cl. 561. De- sonal knowledge of the facts set forth; terminations that no dependency exists statements of heresay, opinion, and may be made in disputed cases—if a conclusion are not acceptable as evi- member does not contribute to the sup- dence. port of spouse and child at least to the (ii) Written admissions by the spouse extent of: contained in letters written by that (i) The full amount of his/her basic spouse to the service member or other allowance for quarters, or persons. (ii) An amount specified in a court order or legal separation agreement, or The request for waiver of support of a (iii) An amount agreed to by the par- spouse should be submitted to the Di- ties as acceptable, adequate support, rector, Navy Family Allowance Activ- whichever is lesser. Pertinent decisions ity or the Commandant of the Marine of the Court of Claims or Comptroller Corps (Code MSPA) with a complete General will be followed in determina- statement of the facts and substantiat- tions of dependency. ing evidence, and comments or rec- ommendations of the commanding offi- § 733.4 Complaints of nonsupport and cer. insufficient support of dependents. (2) Action. After a written complaint (a) Upon receipt of a complaint alleg- that a member has failed or refused to ing that a member is not adequately furnish support for his or her spouse or supporting his or her lawful dependents children has been received, and the (spouse or children), the member will member has been counseled with re- be interviewed and informed of the pol- gard to his/her rights and obligations icy of the Department of the Navy con- in the support matter, continued fail- cerning support of dependents. In the ure or refusal, without justification, to absence of a determination by a civil furnish support for dependents in ac- court or a mutual agreement of the cordance with the provisions of a valid parties, the applicable guide in § 733.3 court order, written agreement, or, in will apply. The member will be in- the absence of a court order or agree- formed that his/her Navy or Marine ment, the appropriate support guide Corps career may be in jeopardy if he/ set forth above, will be a basis for con- she does not take satisfactory action. sideration of disciplinary or adminis- The member may become ineligible to trative action which may result in the reenlist or extend enlistment (in the member’s separation from active serv- case of enlisted members), and may be ice. subject to administrative or discipli- nary action that may result in separa- § 733.5 Determination of paternity and tion from the Navy or Marine Corps. support of illegitimate children. (1) Waiver of support of spouse. If the (a) Illegitimate children. If the service member feels that he or she has legiti- member desires marriage, leave for mate grounds for a waiver of support this purpose is recommended whenever for the spouse, the Director, Navy consistent with the needs or exigencies Family Allowance Activity, acting of the service. When the blood parents under the policy guidance of the Chief of an illegitimate child marry, the of Naval Personnel or the Commandant child is considered to be legitimized by of the Marine Corps (Code MSPA), may the marriage unless a court finds the grant such a waiver for support of a child to be illegitimate.
357
VerDate 25
(b) Judicial order or decree of paternity court may have acquired jurisdiction or support. Normally any order or de- over the member by any mode of serv- cree which specifies the obligation to ice or notice recognized as sufficient by render support of illegitimate children the laws of that country. It should be will include within it a determination noted, however, that an order or decree of paternity of such children; however, against a citizen or permanent resident some jurisdictions provide for deter- of another country, without personal minations of the legal obligation to service or personal notice of the action support illegitimate children without a to him or her, is null and void unless determination of paternity. Either the member voluntarily submitted to type of order or decree falls within the the jurisdiction by appearing and con- scope of this paragraph. If a judicial testing the action. In the event there is order or decree of paternity or support doubt as to the competency of the is rendered by a United States or for- court to enter the order or decree, the eign court of competent jurisdiction question shall be referred to the Judge against a member of the Navy or Ma- Advocate General. rine Corps on active duty, the member (2) [Reserved] concerned will be informed of his moral (c) Nonjudicial determination. In the and legal obligations as well as his absence of an adjudication of paternity legal rights in the matter. The member or of a court-ordered obligation to fur- will be advised that he is expected to nish support, the member shall be pri- render financial assistance to the child vately consulted and asked, where ap- regardless of any doubts of paternity propriate, whether he or she admits ei- that the member may have. If the ther paternity of, or the legal obliga- court order or decree specifies an tion to support, the child or expected amount of support to be provided the child. If the answer is affirmative, the member will be expected to comply member shall be informed that he or with the terms of such decree or order. she is expected to furnish support as If no amount is specified, support set forth in paragraph (b) of this sec- should be rendered in accordance with tion. Where paternity or the legal obli- such reasonable agreement as may be gation to support is admitted by a made with the mother or legal guard- male member, such member should be ian of the child or, in the absence of informed of his moral obligation to as- such agreement, in accordance with sist in the payment of prenatal ex- the applicable guide set forth above. penses. However, no basic allowance for quar- (d) Members not on active duty. Allega- ters will be included in using the guide tions of paternity against members of unless basic allowance for quarters is the naval service who are not on active payable in behalf of illegitimate chil- duty will be forwarded to the individ- dren. If the member refuses to comply ual concerned in such a manner as to with the terms of the court order, ad- insure that the charges are delivered to ministrative action will be taken as in- the addressee only. The correspondence dicated in § 733.4. should be forwarded via the com- (1) Court of competent jurisdiction. A mandant of the naval district in which court of competent jurisdiction is gen- the member resides. erally a court that has jurisdiction (e) Former members. (1) If a certified over the subject matter and the parties copy of a judicial order or decree of pa- involved. As a general rule, the com- ternity or support duly rendered by a petency of the court to render the judi- United States or foreign court of com- cial order or decree may be tested by petent jurisdiction against a former the enforceability of the order or de- member of the Navy or Marine Corps is cree. Normally, although not always, submitted, his or her last-known ad- personal service of the court’s process dress will be furnished to the complain- on the member is considered essential. ant with return of the correspondence With respect to a foreign judicial order and court order. The complainant will or decree, the general rule is that be informed of the date of discharge where the defendant was a citizen or and advised that the individual con- subject of the foreign country in which cerned is no longer a member of the the order or decree was issued, the Navy or Marine Corps in any capacity.
358
VerDate 25
(2) Where there has been no court ad- Security Act, section 459 added by Pub. judication, the correspondence will be L. 93–647, part B, sec. 101(a), 88 Stat. returned to the complainant with an 2357, as amended by the Tax Reform appropriate letter stating that the in- and Simplification Act of 1977, Pub. L. dividual is no longer a member of the 95–30, title V, sec. 502, 91 Stat. 157). Navy or the Marine Corps in any capac- ity and giving the date of his or her § 734.2 Scope. discharge or final separation except The provisions of this part shall that the last-known address of the apply to legal process affecting any former member shall be furnished to Federal pay administered by the De- the claimant if the complaint against partment of the Navy and due and pay- the former member is supported by a document which establishes that the able to all categories of naval military former member has made an admission or civilian personnel including person- or statement acknowledging paternity nel of Navy or Marine Corps non- or responsibility for support of a child appropriated-fund activities. This part before a court of competent jurisdic- is not applicable to legal process af- tion, administrative or executive agen- fecting entitlements administered by cy, or official authorized to receive it. other agencies, such as civilian em- In cases where the complaint, along ployees’ retirement benefits adminis- with the corroboration of a physician’s tered by the Office of Personnel Man- affidavit, alleges and explains an un- agement or compensation administered usual medical situation which makes it by the Veterans Administration. essential to obtain information from [44 FR 42193, July 19, 1979, as amended at 47 the alleged father in order to protect FR 28371, June 30, 1982] the physical health of either the pro- spective mother or the unborn child, § 734.3 Service of process. the last-known address of the former (a) It is the policy of the Department member shall likewise be furnished to of the Navy to respond promptly to the claimant. legal process addressed to naval offi- cials. Service of legal process affecting PART 734—GARNISHMENT OF PAY the pay of Department of the Navy per- OF NAVAL MILITARY AND CIVIL- sonnel shall be made on the following IAN PERSONNEL FOR COLLEC- designated officials in the manner and TION OF CHILD SUPPORT AND in the circumstances specified below: ALIMONY (1) Navy members. Process affecting the military pay of active duty, Re- Sec. serve, Fleet Reserve, or retired Navy 734.1 Purpose. members, wherever serving or residing, 734.2 Scope. may be served personnally or by reg- 734.3 Service of process. 734.4 Responsibilities. istered or certified mail, return receipt 734.5 Administrative procedures. requested, on the Director, Navy Fam- ily Allowance Activity, Anthony J. AUTHORITY: 42 U.S.C. 659 (Social Security Act, sec. 459 added by Pub. L. 93–647, part B, Celebrezze Federal Building, Room 967, sec. 101(a), 88 Stat. 2357, as amended by the Cleveland, Ohio 44199. Tax Reform and Simplification Act of 1977, (2) Marine Corps members. Process af- Pub. L. 95–30, title V, sec. 502, 91 Stat. 157). fecting the military pay of active-duty, SOURCE: 44 FR 42193, July 19, 1979, unless Reserve, Fleet Marine Corps Reserve, otherwise noted. or retired Marine Corps members, wherever serving or residing, may be § 734.1 Purpose. served personally or by registered or This part prescribes responsibilities certified mail, return receipt re- and procedures applicable in the De- quested, on the Commanding Officer, partment of the Navy when processsing Marine Corps Finance Center (AA), and honoring legal process brought for Kansas City, Missouri 64197. the enforcement of legal obligations to (3) Civilian Employees. Process affect- provide child support or make alimony ing the pay of active civilian employ- payments under 42 U.S.C. 659 (Social ees of the Department of the Navy:
359
VerDate 25
(i) If currently employed at Navy or (b) The Department of the Navy offi- Marine Corps activities (including non- cials designated above are authorized appropriated-fund instrumentalities) to accept service of process within the or installations situated within the purview of 42 U.S.C. 659 (Social Secu- territorial jurisdiction of the issuing rity Act, sec. 459 added by Pub. L. 93– court, such process may be served per- 647, part B, sec. 101(a), 88 Stat. 2357, as sonally, or by registered or certified amended by the Tax Reform and Sim- mail, return receipt requested, on the plification Act of 1977, Pub. L. 95–30, commanding officer or head of such ac- title V, sec. 502, 91 Stat. 157). Where tivity or installation, or principal as- service of process is offered to an offi- sistant specifically designated in writ- cial not authorized to accept it under ing by such official. paragraph (a) of this section, the per- (ii) In other cases involving civilian son offering such service shall be re- employees, such process may be served ferred to the appropriate official des- personally or by registered or certified ignated in paragraph (a) of this section. mail, return receipt requested, in the manner indicated below: § 734.4 Responsibilities. (A) If pertaining to civil service per- (a) Designated officials. Within their sonnel of the Navy or Marine Corps, respective areas of cognizance as set such process may be served on the Di- forth in § 734.3, the designated officials rector of Civilian Personnel Law, Of- are responsible for the following func- fice of the General Counsel, Navy De- tions with regard to legal process: partment, Washington, DC 20390. (1) Sending such notifications and di- (B) If pertaining to non-civil service rections to the member concerned and civilian personnel of Navy Exchanges his or her commanding officer as may or related nonappropriated-fund instru- be required. mentalities administered by the Navy (2) Obtaining or providing an appro- Resale System Office, such process priate review by qualified legal coun- may be served on the Commanding Of- sel. ficer, Navy Resale System Office, At- (3) Taking or directing actions, tem- tention: Industrial Relations Officer, porary and final, as are necessary to 29th Street and Third Avenue, Brook- comply with 42 U.S.C. 659, as amended lyn, New York 11232. (see § 734.3(b)), the Marine Corps Man- (C) If pertaining to non-civil service ual, Navy Comptroller Manual, and the civilian personnel of Navy clubs, court’s order in the case, and messes, or recreational facilities (non- (4) Apprising the cognizant United appropriated funds), such process may States Attorney of the Department of be served on the Chief of Naval Person- the Navy’s disposition, as required, nel, Director, Recreational Services Di- and, in coordination with the Judge vision (Pers/NMPC–72), Washington, DC Advocate General, effecting liaison 20370. with the Department of Justice or (D) If pertaining to non-civil service United States Attorneys in instances civilian personnel of other non- of noncompliance with process or other appropriated-fund instrumentalities circumstances requiring such action. which fall outside the purview of the (b) Command responsibility. (1) The Chief of Naval Personnel or the Com- Commanding officer of the member or manding Officer, Navy Resale Systems employee concerned shall, upon receipt Office, such as locally established mo- of notification from the appropriate rale, welfare, and other social and designated official, ensure that the hobby clubs, such process may be member or employee has received writ- served on the commanding officer of ten notification of the pendency of the the activity concerned. action and that the member or em- (E) If pertaining to non-civil service ployee is afforded counseling concern- civilian personnel of any Marine Corps ing his or her obligations in the mat- nonappropriated-fund instrumental- ter, and legal assistance if applicable, ities, such process may be served on in dealing with the legal action to af- the commanding officer of the activity fect his or her Federal pay. The com- concerned. manding officer shall comply with the
360
VerDate 25
directions of the designated official in births to which part 138 of this title is responding to the legal process. applicable. (2) For the purposes of this part, the Director, Navy Family Allowance Ac- § 735.2 Background. tivity, Cleveland, Ohio, will function as For Armed Forces members and their the commanding officer with regard to dependents on duty overseas, registra- retired Navy military personnel and tion of vital statistics with an appro- members of the Fleet Reserve. priate foreign government may be a (c) Legal services. The Judge Advocate distinct advantage should documentary General is responsible for the following evidence, acceptable in all courts, be functions pertaining to legal process required at any future time. Depart- within the purview of this part: ment of Defense (DOD) policy is that (1) Providing overall technical direc- military services will require their tion and guidance, as required, for all members to make official record of Department of the Navy military and births, deaths, marriages, etc., with civilian attorneys engaged in reviewing local civil authorities in whose juris- such process or advising on its disposi- diction such events occur. tion. (2) Ensuring, as Director, Naval § 735.3 Action. Legal Sevice, the availability of attor- When a medical officer has knowl- neys in Naval Legal Service Offices edge of a birth or death occurring who are qualified to advise and assist under the following conditions, he or the designated officials concerning the she shall refer the matter to the com- disposition of legal process, and manding officer for assurance of com- (3) Where required, ensuring effective pliance with DOD policy. liaison with the Department of Justice (a) Births. (1) In accordance with or United States Attorneys. local health laws and regulations, the § 734.5 Administrative procedures. commanding officer of a naval hospital in the United States (U.S.) shall report The designated officials specified in to proper civil authorities all births, § 734.3, shall, in consultation with the including stillbirths, occurring at the Judge Advocate General and Com- hospital. Medical officers on ships and mander, Navy Accounting and Finance aircraft operating within U.S. political Center or the Commandant of the Ma- boundaries, or at stations other than rine Corps (FD), as appropriate, estab- naval hospitals in the U.S., shall report lish procedures for effectively execut- all births occurring within their profes- ing their assigned responsibilities. Im- sional cognizance. It shall be the duty plementing procedures shall conform of the medical officer to determine the with 42 U.S.C., 659, as amended, the requirements of local civil authorities Marine Corps manual, the Navy Comp- for these reports. troller Manual, and the Federal Per- (2) When births occur on aircraft or sonnel Manual. ships operating beyond U.S. political boundaries, the medical officer respon- PART 735—REPORTING BIRTHS AND sible for delivery shall make a report DEATHS IN COOPERATION WITH to the commanding officer, master of OTHER AGENCIES the ship, or to the officer in command of any aircraft, in every case to be re- Sec. corded in the ship or aircraft log. A re- 735.1 Purpose. port shall also be made to local civil 735.2 Background. authorities in the first port of entry if 735.3 Action. required by law and regulation of such AUTHORITY: 70A Stat. 278; 80 Stat. 379, 383; authorities when births occur on a 5 U.S.C. 301, 552; and 10 U.S.C. 5031. course inbound to the U.S. Addition- SOURCE: 51 FR 15321, Apr. 23, 1986, unless ally, the medical officer shall: otherwise noted. (i) Furnish the parents with appro- priate certificates and shall, if the re- § 735.1 Purpose. port is not accepted by the local reg- To promulgate latest guidance on re- istrar of vital statistics or other civil porting births and deaths, including authority, or in any case in which local
361
VerDate 25
authority has indicated in writing that diction as well as for those births such a report will not be accepted, which are otherwise accepted by civil (ii) Advise the parents to seek the ad- authorities for Hawaii. vice of the nearest office of the U.S. (4) Part 138 of this title prescribes Immigration and Naturalization Serv- policy, responsibilities, and procedures ice (USINS), at the earliest practicable on birth registration of infants born to time. USINS offices are located in U.S. citizens, in military medical fa- ports of entry and in major cities of cilities outside the United States and the United States. its possessions. (iii) For births occurring on courses (b) Deaths. When a death occurs at a out-bound and beyond the continental naval activity in any State, Territory, limits of the U.S., report to the U.S. or insular possession of the United consular representative at the next ap- States, the commanding officer or des- propriate foreign port. When the air- ignated representative shall report the craft or ship does not enter a foreign death promptly to proper civil authori- port, procedures described in ties in accordance with Naval Medical § 735.3(a)(2)(ii) shall be followed. Command directives. If requested by (3) Attention is invited to the fact these civil authorities, the civil death that reports of birth may be forwarded certificate may be prepared and signed to the Bureau of Health Statistics, De- by the cognizant naval medical officer. partment of Health, Honolulu, Hawaii Local agreements concerning reporting for any births occurring on courses des- and preparation of death certificates tined for islands in the Pacific Ocean should be made between the naval fa- over which the United States has juris- cility and local civil authorities.
362
VerDate 25
CROSS REFERENCE: For joint procurement responsibility for the disposition of ex- regulations of the Armed Forces, see chapter cess and surplus property located in I of this title. the United States, Puerto Rico, the Virgin Islands, American Samoa, PART 736—DISPOSITION OF Guam, and the Trust Territory of the PROPERTY Pacific Islands with the Administrator of General Services, and for disposition Sec. of such property located in foreign 736.1 General. areas, with the head of each executive 736.2 Dispositions under contracts. agency. The Act of August 10, 1956 (70A 736.3 Sale of personal property. Stat. 451; 10 U.S.C. 7304, 7305, 7307) and 736.4 Disposition of real property. 736.5 Disposition of real and personal prop- Executive Order 11765 of January 21, erty under special statutory authority. 1974, (39 FR 2577) provide authority for 736.6 Certification prior to disposition. the disposal of warships as well as 736.7 Approval by the Attorney General. other vessels stricken from the Naval Vessel Register. The United States AUTHORITY: Secs. 5031, 6011, 70A Stat. 278, as amended; 10 U.S.C. 5031, 6011. Interpret or Maritime Commission, however, is au- apply R.S. 3618, 3678, 3709, 38 Stat. 1084, 44 thorized to dispose of surplus vessels, Stat. 605, 49 Stat. 885, 53 Stat. 811, 54 Stat. other than warships, or 1,500 gross tons 396, 57 Stat. 380, 59 Stat. 260, sec. 27, 60 Stat. or more which the Commission deter- 856, sec. 5, 60 Stat. 998, sec. 4, 62 Stat. 286, mines to be merchant vessels or capa- secs. 7(c), 8(a–b), 62 Stat. 452, 63 Stat. 377, 64 ble of conversion to merchant use (40 Stat. 1109, 65 Stat. 645, 68 Stat. 832, sec. U.S.C. 484(i)). Accordingly, in disposing 501(c)(3), 68A Stat. 163, secs. 2481, 2541, 2542, 2571–2574, 2662, 2667, 6155, 6156, 6901, 7227, 7228, of its property, the Department of the 7230, 7304–7308, 7541–7547, 7601–7604, 70A Stat. Navy is subject to applicable regula- 141, sec. 5003, 72 Stat. 1252, 72 Stat. 1793, sec. tions of the Administrator of General 616, 73 Stat. 381, as amended; 31 U.S.C. 487, Services and the Secretary of Defense, 628, 41 U.S.C. 5, 31 U.S.C. 686, 686a, 40 U.S.C. and, in regard to potential merchant 304a, 50 U.S.C. 98–98h, 22 U.S.C. 521, 44 U.S.C. vessels other than warships, to deter- 366–380, 42 U.S.C. 1572, 24 U.S.C. 37, 20 U.S.C. minations of the United States Mari- 77d, 15 U.S.C. 328, 49 U.S.C. 1156(c), 1157(a–b), time Commission. In general, property 40 U.S.C. 471 et seq., 42 U.S.C. 1855–1855g, 22 U.S.C. 1611–1613c, 1750 et seq., 26 U.S.C. of the Department of the Navy, which 501(c)(3), 10 U.S.C. 2481, 2541, 2542, 2571–2574, becomes excess to its needs, may not 2662, 2667, 6155, 6156, 6901, 7227, 7228, 7230, 7304– be disposed of to the general public 7308, 7541–7547, 7601–7604, 38 U.S.C. 5003, 42 until it has been determined to be sur- U.S.C. 1891–1893, 40 U.S.C. 483a. E.O. 10885, 25 plus after screening such property with FR 8471. the other military departments of the SOURCE: 25 FR 4674, May 27, 1960, unless Department of Defense and all other otherwise noted. agencies of the Government, and after it has been offered for donation to the § 736.1 General. educational institutions. Real and personal property under the (a) Within the limitations indicated jurisdiction of the Department of the in the introductory paragraph of this Navy, exclusive of battleships, aircraft section, the Department of the Navy is carriers, cruisers, destroyers, and sub- authorized to sell its surplus personal marines (referred to as warships in this property under the authority of the part) and certain public domain lands Federal Property Act and the Act of and mineral interests, may be disposed August 10, 1956 (70A Stat. 451; 10 U.S.C. of under the authority contained in the 7305), and to report its real property, Federal Property and Administrative when excess to the needs of the Depart- Services Act of 1949 (63 Stat. 377), as ment of Defense, to the General Serv- amended (40 U.S.C. 471), in this part re- ices Administration for ultimate dis- ferred to as the Federal Property Act. position by that agency or the Depart- The Federal Property Act places the ment of the Navy. The Department of
363
VerDate 25
the Navy is also authorized to transfer § 736.2 Dispositions under contracts. real and personal property to other de- (a) Contractor inventory (that is, partments or agencies of the Govern- personal property acquired by a con- ment, and to sell, transfer and other- tractor under terms vesting title in the wise dispose of certain vessels and Government but in excess of the other personal property under special amount required for performance of a statutory authority. Ships other than contract) may be sold to the contractor warships are sold pursuant to the Fed- or otherwise disposed of in accordance eral Property Act (40 U.S.C. 484(i)) by with the terms and conditions set forth the U.S. Maritime Commission if over in the contract and applicable Navy in- 1500 gross tons and determined by the structions. See also parts 8 and 13 and Maritime Commission to be merchant §§ 30.2 and 30.3 of this title. vessels or capable of conversion to (b) Industrial and plant equipment merchant use. In certain cases, Navy provided by the Government to a con- vessels and other property may be tractor for the performance of a con- transferred or otherwise made avail- tract may, subject to applicable statu- able to other agencies without reim- tory authority and Navy instructions bursement (sec. 616, 73 Stat. 381; 40 be disposed of in accordance with the U.S.C. 483a). applicable contract terms and condi- (b) This part sets forth the general tions. procedures and authority with respect (c) Transfer to nonprofit education or to the disposition of property under the research institutions of title to equip- control of the Department of the Navy ment purchased with funds available except disposition of property to for- for grants or contracts for the conduct eign governments under the authority of basic or applied research is author- ized by the act of September 6, 1958 of such statutes as the Aid to Amer- (sec. 2, 72 Stat. 1793; 42 U.S.C. 1892) and ican Republics Act (54 Stat. 396; 22 implementing regulations (§§ 13.800 to U.S.C. 521) and the Mutual Defense As- 13.803 of this title). sistance Control Act of 1951 (65 Stat. 644; 22 U.S.C. 1611–1613c). § 736.3 Sale of personal property. (c) The Department of Defense Dis- (a) The sale of personal property de- posal Manual and directives issued by termined to be surplus or foreign ex- the Department of the Navy cover the cess or for exchange purposes is au- disposition of all property of the De- thorized by the Federal Property Act partment including disposition under and regulations of the Administrator of the Federal Property Act. The Navy General Services (see § 736.1(a)). Certain Personnel Property Disposal Manual vessels stricken from the Naval Vessel and the Marine Corps Supply Manual Register may be sold under the act of contain information and operating in- August 19, 1956, (70A Stat. 451, 10 U.S.C. structions for the guidance of field per- 7305). sonnel in disposing of personal prop- (b) Sales are by sealed bid, auction, erty at Navy and Marine Corps instal- spot bid or, under limited conditions lations, respectively. Section XXIV of prescribed by law, negotiated method. Navy Procurement Directives contains A deposit, generally 20 percent of the similar information applicable to the amount bid, is normally required of disposition of contractor inventory. each bidder. Awards are usually made These publications are available for in- to the highest acceptable bidder. Nor- spection at the Naval Material Com- mally property may not be removed mand Headquarters, Washington, DC; from Government control until full at the offices of the Commandants of payment is made. Arrangements must the several Naval Districts; and at var- be made by the successful bidder to re- ious Navy and Marine Corps installa- move the property within the time tions. limit prescribed in the invitation to bid or sales contract. The Government [25 FR 4674, May 27, 1960, as amended at 39 reserves the right to withdraw any FR 18442, May 28, 1974; 41 FR 26008, June 24, property from sale when in the best in- 1976] terest of the Government.
364
VerDate 25
(1) The Department of Defense has a gations from the Administrator of Gen- contact point for any person interested eral Services. in purchasing surplus Department of (b) Outside the States of the United Defense personal property within the States, the District of Columbia, the United States. The contact point is the Commonwealth of Puerto Rico, the Defense Surplus Bidders Control Office, Virgin Islands, American Samoa, Defense Logistics Service Center, Fed- Guam, and the Trust Territory of the eral Center Building, Battle Creek, Pacific Islands, Department of the Michigan. This office maintains a sin- Navy real property determined to be gle bidders list for all military depart- excess to the Department of Defense is ments. The list is arranged to show disposed of directly by the Commander, each person’s buying interests, both Naval Facilities Engineering Com- geographically and with respect to cat- mand, Field Division Directors, and egories of property. The categories of District or Area Public Works Officers. property (together with an application (5 U.S.C. 301, 40 U.S.C. 471–514) blank) are listed in a pamplet ‘‘How to [35 FR 10008, June 18, 1970, as amended at 41 Buy Surplus Personal Property From FR 26008, June 24, 1976] The Department of Defense,’’ prepared by the Defense Logistics Services Cen- § 736.5 Disposition of real and per- ter, Defense Supply Agency, Battle sonal property under special statu- Creek, Michigan. tory authority. (2) Retail sales at fixed prices based In addition to the authority to sell on the current market value are con- personal property to the general public ducted by certain Defense property dis- and to transfer real property to the posal offices. General Services Administration under the provisions of §§ 736.3 and 736.4, the [39 FR 18442, May 28, 1974] Department of the Navy has further § 736.4 Disposition of real property. authority to dispose of personal and real property as described in para- (a) Real property, including related graphs (a) through (h) of this section. personal property, determined to be ex- (a) Disposition to other Government cess to the needs of the Department of agencies. The Department of the Navy Defense is subject to disposition under is authorized to transfer real and per- the Federal Property Act. In the States sonal property to other governmental of the United States, the District of departments or agencies under statutes Columbia, the Commonwealth of Puer- applicable to particular agencies, the to Rico, the Virgin Islands, American act of March 4, 1915 (38 Stat. 1084) as Samoa, Guam, and the Trust Territory amended (31 U.S.C. 686) and, as to cer- of the Pacific Islands, Department of tain personal property, under direc- the Navy real property determined to tives of the General Services Adminis- be excess to the Department of Defense tration. and not required for the needs and the (b) Leases. Real and personal property discharge of the responsibilities of all under the control of the Department of Federal agencies, is generally disposed the Navy not excess to its needs and of by the General Services Administra- not for the time being required for pub- tion as surplus property. Exceptions, lic use may be leased, when the Sec- however, are property worth less than retary of the Navy shall deem it to be $1,000; certain leases, permits, licenses, advantageous to the Government, to easements or similar interests; certain such lessee or lessees and upon such fixtures, structures, and improve- terms and conditions as in his judg- ments; and other special classes of ment will promote the national defense property which, when determined to be or will be in the public interest. Such surplus, are disposed of by the Com- leases shall be for a period of not ex- mander, Naval Facilities Engineering ceeding five years unless the Secretary Command, Field Division Directors, determines that a longer period will and District or Area Public Works Offi- promote the national defense or will be cers under authority delegated in Title in the public interest. Such leases are II, Regulations of the General Services authorized by the act of August 10, 1956 Administration, or under special dele- (70A Stat. 150; 10 U.S.C. 2667). Leases of
365
VerDate 25
Government-owned real property where equipment, to exchange or sell similar the estimated annual rental is more items which are not excess to its needs, than 50,000 must be deferred for 30 days and apply the exchange allowance or after reporting the proposed trans- proceeds of sale in whole or part pay- action to the Armed Services Commit- ment for the items procured. tees of Congress in accordance with the (f) Donations and loans of personal act of August 10, 1956 70A Stat. 147), as property. (1) Certain personal property amended (10 U.S.C. 2662). of the Department of the Navy, includ- (c) Disposition of strategic materials. ing vessels, which become surplus, may Strategic materials may be disposed of be donated or loaned under the author- by the Department of the Navy under ity contained in the Federal Property the authority described in § 736.3 only Act and the act of August 10, 1956 (70A when such property is excess to the Stat. 453; 10 U.S.C. 2572, 7308, 7545) to: needs of the Department of Defense and (i) Schools such as maritime acad- when the Director of the Office of Civil emies or military, naval, Air Force or and Defense Mobilization (acting Coast Guard preparatory schools, des- through the Defense Materials Service ignated by the Secretary of Defense as of the General Services Administra- educational activities of special inter- tion) determines that the amounts of est to the armed services. such materials to be disposed of are so (ii) Accredited schools, colleges and small as to make transfer thereof universities and educational institu- under the act of June 7, 1939 (53 Stat. tions which have been exempted from 811) as amended (50 U.S.C. 98–98h) eco- taxation under section 501(c)(3) of the nomically impractical, or such mate- Internal Revenue Code of 1954 and rials are not necessary for stockpile re- State Departments of Education for quirements determined in accordance use by tax exempt educational institu- with section 2 of said act. tions. Applications for donation shall (d) Disposition of vessels. Vessels be approved by the Department of stricken from the Naval Vessel Reg- Health and Human Services and the ister may be sold by the Department of Administrator of General Services and the Navy under the authority and sub- may be filed with the field representa- ject to the limitations of the Federal tive of the Department of Health and Property Act (sections 203(i), 63 Stat. Human Services located nearest the ap- 386, 40 U.S.C. 484(i)) and the act of Au- plicant. gust 10, 1956, (70A Stat. 451; 10 U.S.C. (iii) States, Territories, Common- 7304, 7305, 7307) and Executive Order wealths, or possessions of the United 11765 (39 FR 2577). However, pursuant to States and political subdivisions, mu- section 203(i) of the Federal Property nicipal corporations, veterans associa- Act (40 U.S.C. 484(i)), the United States tions, soldiers’ monument associations, Maritime Commission disposes of ves- State museums, and non-profit edu- sels, other than warships, if over 1,500 cational museums, subject in certain gross tons and determined by the Mari- cases to the approval of the Curator for time Commission to be merchant ves- the Navy and to objection by a concur- sels or capable of conversion to mer- rent resolution of the Congress. chant use. Vessels may be sold for (2) Applications other than those to scrapping or for use under such author- be filed with the field representative of ity or, if such sale is not feasible, the the Department of Health and Human Naval Ship Systems Command may ar- Services shall be filed with the Depart- range for the demolition of a vessel and ment of the Navy and referred to the sale of the resulting materials by an cognizant Command or Headquarters authorized selling activity as set forth for action except that applications for in § 736.3. vessels and district craft shall be re- (e) Exchange of sale of property for re- ferred to the Chief of Naval Operations, placement purposes. Under the authority applications for boats to the Naval of section 201(c) of the Federal Prop- Ship Systems Command, and applica- erty Act (40 U.S.C. 481(c)) and of the tions for barges, floating drydocks, and Armed Services Procurement Regula- other floating construction equipment tion, the Department of the Navy is au- to the Naval Facilities Engineering thorized in the procurement of new Command. Detailed instructions with
366
VerDate 25
respect to such applications are set eral of the proposed disposal and the forth in the Defense Disposal Manual. probable terms and conditions thereof. (g) Disposition of equipment for re- Within a reasonable time, in no event search. Under the act of September 6, to exceed sixty days after receiving 1958 (72 Stat. 1793; 42 U.S.C. 1891–1893), such notification, the Attorney Gen- equipment purchased with research eral will advise the Department of the grant or contract funds may be trans- Navy, whether, insofar as he can deter- ferred for the conduct of basic or ap- mine, the proposed disposition would plied scientific research to (1) non-prof- tend to create or maintain a situation it institutions of higher education or inconsistent with the antitrust laws. In (2) non-profit organizations whose pri- such cases, the Department of the mary purpose is the conduct of sci- Navy must obtain from the proposed entific research. An annual report of purchaser information regarding its fi- such transfers must be made to the ap- nancial status, the anticipated use to propriate Committees of Congress. be made of the property and any other (h) Assistance in major disaster relief. information as may be required by the Under the act of December 31, 1970, (42 Attorney General; the award or final U.S.C. 4401–4485) and subject to direc- tions of the Director of the Office of sale must be delayed until the Attor- Emergency Preparedness, certain ex- ney General advises of his determina- cess personal property may be utilized tion. for or donated to States and local gov- ernments for relief of suffering and PART 744—POLICIES AND PROCE- damage resulting from major disasters. DURES FOR THE PROTECTION OF Surplus property may also be disposed PROPRIETARY RIGHTS IN TECH- of to States for sale to small business NICAL INFORMATION PROPOSED concerns affected by specific disasters such as hurricanes. FOR RELEASE TO FOREIGN GOV- ERNMENTS [25 FR 4674, May 27, 1960, as amended at 25 FR 11066, Nov. 22, 1960, 26 FR 12158, Dec. 20, 1961; 35 FR 10008, June 18, 1970; 39 FR 18442, AUTHORITY: Sec. 301, 80 Stat. 379, secs. 5031, May 28, 1974; 41 FR 26008, June 24, 1976; 47 FR 6011, 70A Stat. 278, 375 as amended; 5 U.S.C. 28371, June 30, 1982] 301, 10 U.S.C. 5031, 6011. Interpret or apply the Mutual Security Act of 1954 (68 Stat. 832) § 736.6 Certification prior to disposi- as amended, 22 U.S.C. 1750 et seq., and Act of tion. Sept. 4, 1961 (Pub. L. 87–195, 75 Stat. 424), 22 The transfer, sale, or other disposi- U.S.C. 2151–2406 (2351, 2356). tion of a battleship, aircraft carrier, cruiser, destroyer, or submarine shall § 744.1 Purpose. not be made unless and until the Chief This part implements part 264 of this of Naval Operations, in accordance title and the Technical Property Inter- with the act of August 10, 1956 (70A change Agreements between the United Stat. 452; 10 U.S.C. 7307), has certified States and foreign governments which that such material is not essential to agreements are designed to facilitate the defense of the United States. the interchange of patent rights and technical information for defense pur- § 736.7 Approval by the Attorney Gen- poses. eral. Prior to the disposition, either com- [26 FR 12217, Dec. 21, 1961] petitively or by negotiation, to private interests of a plant or plants, or other § 744.6 Authorization for release with- out consent of the owner. property, which cost the Government $1,000,000 or more if real property, or (a) Military equipment including the $3,000,000 or more if personal property information essential for its operation, (other than a patent, process, tech- maintenance and repair and technical nique or invention), or of patents, proc- information, known or claimed to be esses, techniques or inventions, irre- proprietary, which is being considered spective of cost, the Department of the for release in accordance with Navy must notify the Attorney Gen- § 264.4(d)(3), may be released when the
367
VerDate 25
Chief of Naval Operations or his des- § 746.1 Purpose. ignee or a bureau chief or deputy bu- This part implements Department of reau chief determines under the au- Defense Directive 5535.3 of November 2, thority of the Act that such action 1973 and 41 CFR subpart 101–4.1, and clearly warrants the assumption of fi- sets forth the policy, terms, conditions, nancial liability that may be incurred and procedures for the licensing of and there is no acceptable substitute rights in domestic patents and patent equipment or information for which applications vested in the United consent to release is obtainable or States of America and in the custody which is not proprietary. of the Department of the Navy. (b) Where any technical information is released in accordance with this sec- § 746.2 Policy. tion, such release shall be subject to (a) A major premise of the Presi- the conditions of release set forth in dential Statement fo Government Pat- § 264.4(f). ent Policy, August 23, 1971 (36 FR 16887, (c) Military equipment, including the August 26, 1971), is that government in- information essential for its operation, ventions normally will best serve the maintenance, and repair, known or public interest when they are devel- claimed to be privately owned and for oped to the point of practical applica- which consent for release cannot be ob- tion and made available to the public tained may be furnished to foreign gov- in the shortest possible time. The ernments in accord with § 264.4(d)(3) granting of express nonexclusive or ex- without further legal authorization, clusive licenses for the practice of provided such release is made pursuant these inventions may assist in the ac- to the grant aid provisions of the Mu- complishment of the national objective tual Security Act of 1954, as amended, to achieve a dynamic and efficient and provided further, there is no ac- economy. ceptable substitute equipment or infor- (b) The granting of nonexclusive li- mation for which consent for release is censes generally is preferable, since the obtainable or which is not proprietary. invention is thereby laid open to all in- terested parties and serves to promote [24 FR 10715, Dec. 25, 1959, as amended at 44 FR 30686, May 29, 1979] competition in industry, if the inven- tion is in fact promoted commercially. However, to obtain commercial utiliza- PART 746—LICENSING OF GOV- tion of the invention, it may be nec- ERNMENT INVENTIONS IN THE essary to grant an exclusive license for CUSTODY OF THE DEPARTMENT a limited period of time as an incentive OF THE NAVY for the investment of risk capital to achieve practical application of an in- Sec. vention. 746.1 Purpose. (c) Whenever the grant of an exclu- 746.2 Policy. sive license is deemed appropriate, it 746.3 Delegation of authority. shall be negotiated on terms and condi- 746.4 Definitions. tions most favorable to the public in- 746.5 Government inventions available for terest. In selecting an exclusive li- licensing. censee, consideration shall be given to 746.6 Nonexclusive license. the capabilities of the prospective li- 746.7 Limited exclusive license. censee to further the technical and 746.8 Additional licenses. market development of the invention, 746.9 Royalties. his plan to undertake the development, 746.10 Reports. the projected impact on competition, 746.11 Procedures. and the benefit to the Government and 746.12 Litigation. the public. Consideration shall be given 746.13 Transfer of custody of Government also to assisting small business and mi- inventions. nority business enterprises, as well as AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031; 40 economically depressed, low income, U.S.C. 486(c); and 41 CFR 101–4.1. and labor surplus areas, and whether SOURCE: 41 FR 55712, Dec. 22, 1976, unless each or any applicant is a United otherwise noted. States citizen or corporation. Where
368
VerDate 25
there is more than one applicant for an § 746.5 Government inventions avail- exclusive license, that applicant shall able for licensing. be selected who is determined to be Government inventions normally will most capable of satisfying the criteria be made available for the granting of and achieving the goals set forth in express nonexclusive or limited exclu- this part. sive licenses to responsible applicants (d) Subject to the following: (1) Any according to the factors and conditions existing or future treaty or agreement set forth in §§ 746.6 and 746.7, subject to between the United States and any for- the applicable procedures of § 746.11. eign government or inter-govern- The Chief of Naval Research may re- mental organization, or move a prior designation of availabil- (2) Licenses under or other rights to ity for licensing of any patent(s) or inventions made or conceived in the patent application(s), provided that no course of or under Department of the outstanding licenses to that invention Navy research and development con- are in effect. tracts where such licenses or other rights to such inventions are provided § 746.6 Nonexclusive license. for in the contract and retained by the (a) Availability of licenses. Each gov- party contracting with the Department ernment invention normally shall be of the Navy, no license shall be granted made available for the granting of non- or implied in a government invention, exclusive revocable licenses, subject to except as provided for in this part. the provisions of any other licenses, in- (e) No grant of a license under this cluding those under § 746.8. part shall be construed to confer upon (b) Terms of grant. (1) The duration of any licensee any immunity from the the license shall be for a period as spec- antitrust laws or from a charge of pat- ified in the license agreement, provided ent misuse, and the acquisiton and use that the licensee complies with all the of rights pursuant to this part shall not terms of the license. be immunized from the operation of (2) The license shall require the li- state or federal law by reason of the censees to bring the invention to the source of the grant. point of practical application within a period specified in the license, or such § 746.3 Delegation of authority. extended period as may be agreed upon, The Chief of Naval Research is dele- and to contine to make the benefits of gated the authority to administer the the invention reasonably accessible to patent licensing program, with the au- the public. thority to redelegate such authority. (3) The license may be granted for all or less than all fields of use of the in- § 746.4 Definitions. vention, and throughout the United States of America, its territories and (a) Government invention means an in- possessions, the Commonwealth of vention covered by a domestic patent Puerto Rico, and the District of Colum- or patent application that is vested in bia, or in any lesser geographic portion the United States and in the custody of thereof. the Department of the Navy, and is (4) After termination of a period designated by the Chief of Naval Re- specified in the license agreement, the search as appropriate for the grant of Chief of Naval Research may restrict an express non-exclusive or exclusive the license to the fields of use and/or license. geographic areas in which the licensee (b) To the point of practical application has brought the invention to the point means to manufacture in the case of a of practical application and continues composition or product, to practice in to make the benefits of the invention the case of a process, or to operate in reasonably accessible to the public. the case of a machine, under such con- (5) The license may extend to subsidi- ditions as to establish that the inven- aries and affiliates of the licensee but tion is being worked and that its bene- shall be nonassignable without ap- fits are reasonably accessible to the proval of the Chief of Naval Research, public. except to the successor of that part of
369
VerDate 25
the licensee’s business to which the in- (c) Terms of grant. (1) The license may vention pertains. be granted for all or less than all fields (6) The Government shall make no of use of the government invention, representation or warranty as to the and throughout the United States of validity of any licensed application(s) America, its territories and posses- or patent(s), or of the scope of any of sions, the Commonwealth of Puerto the claims contained therein, or that Rico, and the District of Columbia, or the exercise of the license will not re- in any lesser geographic portion there- sult in the infringement of any other of. patent(s), nor shall the Government as- (2) Subject to the rights reserved to sume any liability whatsoever result- the Government in paragraphs (c)(6) ing from the exercise of the license. and (c)(7) of § 746.7, the licensee shall be granted the exclusive right to practice § 746.7 Limited exclusive license. the invention in accordance with the (a) Availability of licenses. Each gov- terms and conditions specified in the ernment invention may be made avail- license. able for the granting of a limited ex- (3) The duration of the license shall clusive license, provided that: be negotiated but shall be for a period (1) The invention has been published less than the terminal portion of the as available for licensing pursuant to patent, the period remaining being suf- paragraph (a) of § 746.11 for a period of ficient to make the invention reason- at least six months; ably available for the grant of a non- (2) The Chief of Naval Research has exclusive license; and such period of determined that: exclusivity shall not exceed 5 years un- (i) The invention may be brought to less the Chief of Naval Research deter- the point of practical application in mines, on the basis of a written sub- certain fields of use and/or in certain mission supported by a factual show- geographical locations by exclusive li- ing, that a longer period is reasonably censing; necessary to permit the licensee to (ii) The desired practical application enter the market and recoup his rea- has not been achieved under any non- sonable costs in so doing. exclusive license granted on the inven- (4) The license shall require the li- tion; and censee to bring the invention to the (iii) The desired practical application point of practical application within a is not likely to be achieved expedi- period specified in the license, or with- tiously in the public interest under a in a longer period as approved by the nonexclusive license or as a result of Chief of Naval Research, and to con- further government-funded research or tinue to make the benefits of the in- development; vention reasonably accessible to the (3) The notice of the prospective li- public. censee has been published, pursuant to (5) The license shall require the li- paragraph (d) of § 746.11 for at least 60 censee to expend a specified minimum days; and amount of money and/or take other (4) After termination of the period specified actions, within a specified pe- set forth in paragraph (a)(3) of § 746.7 riod of time after the effective date of the Chief of Naval Research has deter- the license, in an effort to bring the in- mined that no applicant for a non- vention to the point of practical appli- exclusive license has brought or will cation. bring, within a reasonable period, the (6) The license shall be subject to the invention to the point of practical ap- irrevocable, royalty-free right of the plication, as specified in the exclusive Government of the United States to license, and that to grant the exclusive practice and have practiced the inven- license would be in the public interest. tion throughout the world, by or on be- (b) Selection of exclusive licensee. An half of the Government of the United exclusive licensee will be selected on States, and by or on behalf of any for- bases consistent with the policy set eign government or intergovernmental forth in § 746.2 and in accordance with organization pursuant to any existing the procedures set forth in § 746.11. or future treaty or agreement with the
370
VerDate 25
United states. If the Chief of Naval Re- exemplify circumstances wherein such search finds it to be in the public inter- licenses may be granted: est, this license may also be expressly (a) In consideration of the settlement subject to this same royalty-free right of an interference; by or on behalf of state and municipal (b) In consideration of a release of a governments. claim of infringement; or (7) The license shall reserve to the (c) In exchange for, or as part of, the Chief of Naval Research the right to re- consideration for a license under ad- quire the licensee to grant sublicenses versely held patents. to responsible applicants on terms that are reasonable in the circumstances: § 746.9 Royalties. (i) The extent that the invention is (a) Nonexclusive license. Normally, required for public use by government royalties shall not be changed under regulations, or nonexclusive licenses granted to (ii) As may be necessary to fulfill United States citizens and United health or safety needs, or States corporations on government in- (iii) For other public purposes stipu- ventions; however, the Chief of Naval lated in the license. Research may require other consider- (8) The license may extend to subsidi- ation. aries and affiliates of the licensee but (b) Limited exclusive license. A limited shall be nonassignable without ap- exclusive license on a government in- proval of the Chief of Naval Research, vention shall contain a royalty provi- except to successors of that part of the sion and/or other consideration flowing licensee’s business to which the inven- to the Government. tion pertains. (9) An exclusive licensee may grant § 746.10 Reports. sublicenses under his license, subject A license shall require the licensee to to the approval of the Chief of Naval submit periodic reports on his efforts Research. Each sublicense granted by to achieve practical application of the an exclusive licensee shall make ref- invention. The reports shall contain in- erence to the exclusive license, includ- formation within his knowledge, or ing the rights retained by the Govern- which he may acquire under normal ment under the exclusive license, and a business practices, pertaining to the copy of such sublicense shall be fur- commercial use being made of the in- nished to the Chief of Naval Research. vention, and other information which (10) The license may be subject to the Chief of Naval Research may deter- such other terms as may be in the pub- mine is pertinent to its licensing ac- lic interest. tivities and is specified in the license. (11) The Government shall make no representation or warranty as to valid- § 746.11 Procedures. ity of any licensed application(s) or (a) Publication requirements. The Chief patent(s), or of the scope of any of the of Naval Research shall cause to be claims contained therein, or that the published in the FEDERAL REGISTER, exercise of the license will not result in the Official Gazette of the United the infringement of any other pat- States Patent and Trademark Office, ent(s), nor shall the Government as- and at least one other publication that sume any liability whatsoever result- the Chief of Naval Research deems ing from the exercise of the license. would best serve the public interest, a list of the government inventions § 746.8 Additional licenses. available for licensing under the condi- Subject to any outstanding licenses, tions specified in this part. The list nothing in this part shall preclude the shall be revised periodically to include Chief of Naval Research from granting directly, or by reference to a pre- additional nonexclusive or limited ex- viously published list, all inventions clusive licenses for government inven- currently available for licensing. Other tions when he determines that to do so publications on inventions available would provide for an equitable ex- for licensing are encouraged, and may change of patent rights. The following include abstracts, when appropriate, as
371
VerDate 25
well as information on the design, con- (3) A statement describing the time, struction, use, and potential market expenditure, and other acts which the for the inventions. applicant considers necessary to (b) Contents of a nonexclusive license achieve practical application of the in- application. An application for a non- vention and the applicant’s offer to in- exclusive license under a government vest that sum to perform such acts if invention should be addressed to the the license is granted; Chief of Naval Research (Code 300), Ar- (4) A statement that contains the ap- lington, VA 22217, and shall include: plicant’s best knowledge of the extent (1) Identification of the invention for to which the government invention is which the license is desired, including being practiced by private industry and the patent application serial number or the Government; patent number, title, and date, if (5) Identification of other exclusive known, and any other identification of licenses granted to applicant under in- the invention; ventions in the custody of other gov- (2) Name and address of the person, ernment agencies; and company, or organization applying for (6) Any other facts which the appli- the license, and whether the applicant cant believes are evidence that it is in is a United States citizen or a United the public interest for the Chief of States corporation; Naval Research to grant an exclusive (3) Name and address of the rep- license rather than a nonexclusive li- resentative of applicant to whom cor- cense, and that such exclusive license respondence should be sent; should be granted to the applicant. (4) Nature and type of applicant’s (d) Published notices. (1) A notice that business; a prospective exclusive licensee has (5) Source of information concerning been selected shall be published in the the availability of a license on this in- FEDERAL REGISTER, and a copy of the vention; notice shall be sent to the Attorney (6) Purpose for which the license is General. The notice shall include: desired and a brief description of appli- (i) Identification of the invention; cant’s plan to achieve that purpose; (ii) Identification of the selected li- (7) A statement of the fields of use censee; for which applicant intends to practice (iii) Duration and scope of the con- the invention; and templated license; and (8) A statement as to the geographic (iv) A statement to the effect that areas in which the applicant would the license will be granted unless: practice the invention. (A) An application for a nonexclusive (c) Contents of an exclusive license ap- license, submitted by a responsible ap- plication. An application for an exclu- plicant pursuant to paragraph (b) of sive license should be addressed to the § 746.11, is received by the Chief of Chief of Naval Research (Code 300), Ar- Naval Research within 60 days from the lington, VA 22217, and, in addition to publication of the notice in the FED- the information indicated in paragraph ERAL REGISTER, and the Chief of Naval (b) of § 746.11, an application for an ex- Research determines in accordance clusive license shall include: with his prescribed procedures, under (1) Applicant’s status, if any, in any which procedures the Chief of Naval one or more of the following categor- Research shall record and make avail- ies: able for public inspection all decisions (i) Small business firm; made pursuant thereto and the basis (ii) Minority business enterprise; therefore, that the applicant has estab- (iii) Location in a surplus labor area; lished that he has already achieved or (iv) Location in a low-income area; is likely to bring the invention to the and point of practical application withing a (v) Location in an economically de- reasonable period under a nonexclusive pressed area; license; or (2) A statement of applicant’s capa- (B) The Chief of Naval Research de- bility to undertake the development termines that third party has pre- and marketing required to achieve the sented evidence and argument which practical application of the invention; has established that it would not be in
372
VerDate 25
the public interest to grant the exclu- tice of intention to modify or revoke sive license. the license, and the licensee and any (2) If an exclusive license has been sublicensee shall be allowed 30 days granted pursuant to this part, notice after such notice to remedy any breach thereof shall be published in the FED- of any covenant or agreement as re- ERAL REGISTER. Such notice shall in- ferred to in paragraph (e)(1) of § 746.11, clude: or to show cause why the license (i) Identification of the invention; should not be modified or revoked. (ii) Identification of the licensee; and (f) Appeals. An applicant for a license, (iii) Duration and scope of the li- a licensee, or such other third party cense. who has participated under paragraph (3) If an exclusive license has been (d)(1)(iv)(B) of § 746.11 shall have the modified or revoked pursuant to para- right to appeal, in accordance with pro- graph (e) § 746.11, notice thereof shall be cedures prescribed by the Chief of published in the FEDERAL REGISTER. Naval Research, any decision concern- Such notice shall include: ing the granting, denial, interpreta- (i) Identification of the invention; tion, modification, or revocation of a (ii) Identification of the licensee; and license. (iii) Effective date of the modifica- tion or revocation. § 746.12 Litigation. (e) Modification or revocation. (1) Any license granted pursuant to this part The property interest in a patent is may be modified or revoked by the the right to exclude. It is not the in- Chief of Naval Research if the licensee tent of the Government to transfer the at any time defaults in making any re- property right in a patent when a li- port required by the license or commits cense is issued pursuant to this part. any breach of covenant or agreement Accordingly, the right to sue for in- therein contained. fringement shall be retained with re- (2) A license may also be revoked by spect to all licenses so issued by the the Chief of Naval Research if the li- Government. censee willfully makes a false state- ment of material fact or willfully § 746.13 Transfer of custody of Govern- omits a material fact in the license ap- ment inventions. plication or any report required in the The Chief of Naval Research may license agreement. enter into an agreement to transfer (3) Before modifying or revoking any custody of a Government invention to license granted pursuant to this part another government agency for pur- for any cause, the Chief of Naval Re- poses of administration, including the search shall furnish the licensee and granting of licenses pursuant to this any sublicensee of record a written no- part.
373
VerDate 25
PART 750—GENERAL CLAIMS 750.54 Payment of costs, settlements, and judgments related to certain medical or REGULATIONS legal malpractice claims. 750.55 Attorney’s fees. Subpart A—General Provisions for Claims 750.56–750.60 [Reserved]
Sec. Subpart D—Claims Not Cognizable Under 750.1 Scope of subpart A. Any Other Provision of Law 750.2 Investigations: In general. 750.3 Investigations: The report. 750.61 Scope of subpart D. 750.4 Claims: In general. 750.62 Statutory authority. 750.5 Claims: Proper claimants. 750.63 Definitions. 750.6 Claims: Presentment. 750.64 Claim procedures. 750.7 Claims: Action by receiving command. 750.65 Statute of limitations. 750.8 Claims: Responsibility of the adju- 750.66 Officials with authority to settle. dicating authority. 750.67 Scope of liability. 750.9 Claims: Payments. 750.68 Claims not payable. 750.10 Claims: Settlement and release. 750.69 Measure of damages. 750.11 Claims: Denial. 750.12 Claims: Action when suit filed. AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 939, 5013, 750.13 Claims: Single service responsibility. and 5148; E.O. 11476, 3 CFR, 1969 Comp., p. 132; 32 CFR 700.206 and 700.1202. 750.14–750.20 [Reserved] SOURCE: 57 FR 4722, Feb. 7, 1992, unless oth- Subpart B—Federal Tort Claims Act erwise noted. 750.21 Scope of subpart B. 750.22 Exclusiveness of remedy. Subpart A—General Provisions for 750.23 Definitions. Claims 750.24 Statutory/regulatory authority. 750.25 Scope of liability. § 750.1 Scope of subpart A. 750.26 The administrative claim. (a) General. (1) The Judge Advocate 750.27 Information and supporting docu- mentation. General is responsible for the adminis- 750.28 Amendment of the claim. tration and supervision of the resolu- 750.29 Investigation and examination. tion of claims arising under the Fed- 750.30 Denial of the claim. eral Tort Claims Act (subpart B of this 750.31 Reconsideration. part), the Military Claims Act (subpart 750.32 Suits under the Federal Tort Claims C of this part), the Nonscope Claims Act (FTCA). Act (subpart D of this part), the Per- 750.33 Damages. sonnel Claims Act (part 751 of this 750.34 Settlement and payment. chapter), the Foreign Claims Act, the 750.35 Attorney’s fees. 750.36 Time limitations. International Agreements Claims Act 750.37–750.40 [Reserved] pertaining to cost sharing of claims pursuant to international agreements, Subpart C—Military Claims Act the Federal Claims Collection Act of 1966 (subpart A of part 757 of this chap- 750.41 Scope of subpart C. ter), the Medical Care Recovery Act 750.42 Statutory authority. (subpart B of part 757 of this chapter), 750.43 Claims payable. 750.44 Claims not payable. and postal claims. 750.45 Filing claim. (2) The Deputy Assistant Judge Ad- 750.46 Applicable law. vocate General (Claims and Tort Liti- 750.47 Measure of damages for property gation) is the functional manager of claims. the Navy claims system established to 750.48 Measure of damages in injury or evaluate, adjudicate, and provide liti- death cases. gation support for claims arising under 750.49 Delegations of adjudicating author- the acts listed above and is responsible ity. 750.50 Advance payments. to the Judge Advocate General for the 750.51 Final disposition. management of that system. The 750.52 Appeal. claims system consists of field activi- 750.53 Cross-servicing. ties delegated claims processing and
374
VerDate 25
adjudicating authority and the attor- against the United States. When an in- neys and support personnel assigned to cident involves an actual or potential the Claims and Tort Litigation Divi- claim against the United States for sion of the Office of the Judge Advo- property damage only and the total cate General. For economy of lan- amount likely to be paid does not ex- guage, Naval Legal Service Offices and ceed $5,000.00, an abbreviated investiga- Naval Legal Service Office Detach- tive report may be submitted. Where ments are referred to as Naval Legal this monetary figure may be exceeded, Service Command Activities. but the circumstances indicate an ab- (3) Commanding officers of com- breviated report may be adequate to mands receiving claims are responsible preserve the facts and protect the Gov- for complying with the guidance on in- ernment’s claims interests, approval to vestigations in §§ 750.2 and 750.3 and the submit a limited investigative report guidance on handling and forwarding may be sought from the nearest Naval claims found in § 750.5. Legal Service Command activity. (b) This subpart A delineates general (d) Developing the facts. Any inves- investigative and claims-processing re- tigation convened for claims purposes quirements to be followed in the han- must focus on developing the facts of dling of all incidents and claims within the incident, i.e., the who, what, where, the provisions of this part. Where the when, why, and how of the matter. general provisions of this subpart A Opinions on the possible liability of the conflict with the specific provisions of United States under any of the claims any subsequent subpart of this part, statutes listed above shall not be ex- the specific provisions govern. pressed. Early and continuous con- sultation with claims attorneys at § 750.2 Investigations: In general. Naval Legal Service Command activi- (a) Conducting the investigation. The ties is essential to ensure the timely command where the incident giving development of all necessary facts, the rise to the claim is alleged to have hap- identification and preservation of rel- pened is responsible for conducting an evant evidence, and to void the need investigation in accordance with this for supplemental inquiries. part. (e) Attorney work product. (1) The con- (b) Thorough investigation. Every inci- vening order and the preliminary state- dent that may result in a claim against ment of an investigative report pre- or in favor of the United States shall pared to inquire into the facts of an in- be promptly and thoroughly inves- cident giving or likely to give rise to a tigated under this part. Investigations claim against the United States shall convened for claims purposes are suffi- include the following: ciently complex that they should be This investigation has been convened and performed with the assistance and conducted, and this report prepared, in con- under the supervision of a judge advo- templation of claims adjudication and litiga- cate or other attorney. Where the com- tion and for the express purpose of assisting mand has an attorney assigned, he attorneys representing the interests of the shall be involved in every aspect of the United States. proceedings. When an attorney is not (2) When an investigation is prepared assigned to the investigating com- by or at the direction of an attorney mand, consultation shall be sought representing the Department of the from the appropriate Naval Legal Serv- Navy and is prepared in reasonable an- ice Command activity. ticipation of litigation, it is exempt (c) Recovery barred. Even when recov- from mandatory disclosure under the ery may be barred by statute or case Freedom of Information Act exemption law, all deaths, serious injuries, and (b)(5) and is normally privileged from substantial losses to property that are discovery in litigation under the attor- likely to give rise to claims must be in- ney work product privilege. 5 U.S.C. vestigated while the evidence is avail- 552(b)(5). Unless an attorney prepares able. Claims against persons in the the report or personally directs its naval service arising from the perform- preparation, the investigation may not ance of their official duties shall be in- be privileged, even if it was prepared in vestigated as though they were claims reasonable anticipation of litigation.
375
VerDate 25
(f) Advance copy. An advance copy of claim and to advise such personnel any investigation conducted because a where they should file their claim. claim has been, or is likely to be, sub- (c) Content of the report. The written mitted shall be forwarded to the Naval report of investigation shall contain Legal Service Command activity information answering the questions claims office responsible for the area mentioned in § 750.3(a) and, depending where the incident giving rise to the on the nature of the incident, will in- claim occurred. clude the following: (1) Date, time, and exact place the § 750.3 Investigations: The report. accident or incident occurred, specify- (a) Purpose. The purpose of investiga- ing the highway, street, or road; tions into claims incidents is to gather (2) A concise but complete statement all relevant information about the in- of the incident with reference to phys- cident so adjudicating officers can ei- ical facts observed and any statements ther pay or deny the claim. The essen- by the personnel involved; tial task of the investigating officer is (3) Names, grades, organizations, and to answer the questions of who, what, addresses of military personnel and ci- where, when, why and how? The Navy’s vilian witnesses; best interests are served when the in- (4) Opinions as to whether military vestigation is thorough and is per- or civilian employees involved in the formed in a timely manner so the incident were acting within the scope claimant can be advised promptly of of their duties at the time; the action on the claim. (5) Description of the Government property involved in the incident and (b) Duties of the investigating officer. It the nature of any damage it sustained; is the investigating officer’s respon- and, sibility: (6) Descriptions of all private prop- (1) To interview all witnesses to the erty involved. incident and prepare summaries of (d) Immediate report of certain events. their comments. Obtaining signed The Navy or Marine Corps activity statements of Government witnesses is most directly involved in the incident not necessary. Summaries of the wit- shall notify the Judge Advocate Gen- nesses’ remarks prepared by the inves- eral and the appropriate adjudicating tigating officer are quite sufficient and authority immediately by message, generally expedite the gathering of in- electronic mail, or telephone in any of formation. On the other hand, written the following circumstances: signed statements should be obtained (1) Claims or possible claims arising from the claimant, wherever possible; out of a major disaster or out of an in- (2) To inspect the property alleged to cident giving rise to five or more pos- have been damaged by the action of sible death or serious injury claims. Government personnel; (2) Upon filing of a claim that could (3) To determine the nature, extent, result in litigation that would involve and amount of any damage, and to ob- a new precedent or point of law. tain pertinent repair bills or estimates (3) Claims or possible claims that in- and medical, hospital, and associated volve or are likely to involve an agency bills necessary to permit an evaluation other than the Department of the of the claimant’s loss; Navy. (4) To obtain maintenance records of (e) Request for assistance. When an in- the Navy motor vehicle, plane, or other cident occurs at a place where the piece of equipment involved in the naval service does not have an installa- claim; tion or a unit conveniently located for (5) To reduce to writing and incor- conducting an investigation, the com- porate into an appropriate investiga- manding officer or officer in charge tive report all pertinent statements, with responsibility for performing the summaries, exhibits, and other evi- investigation may request assistance dence considered by the investigator in from the commanding officer or officer arriving at his conclusions; and, in charge of any other organization of (6) To furnish claim forms to any per- the Department of Defense. Likewise, son expressing an interest in filing a if a commanding officer or officer in
376
VerDate 25
charge of any other organization of the prognosis, and the period of hos- Department of Defense requests such pitalization or incapacity. assistance from a naval commanding (2) A Privacy Act statement for each officer or officer in charge, the latter person who was asked to furnish per- should normally comply. If a complete sonal information shall be provided. investigation is requested it will be Social Security numbers of military performed in compliance with the regu- personnel and civilian employees of the lations of the requested service. These U.S. Government should be included in investigations are normally conducted the report but should be obtained from without reimbursement for per diem, available records, not from the individ- mileage, or other expenses incurred by ual. the investigating unit or installation. (3) Names, addresses, and ages of all (f) Report of Motor Vehicle Accident, civilians or military personnel injured Standard Form 91. RCS OPNAV 5100–6. or killed; names of insurance compa- The operator of any Government motor nies; information on the nature and ex- vehicle involved in an accident of any tent of injuries, degree of permanent sort shall be responsible for making an disability, prognosis, period of hos- immediate report on the Operator’s Re- pitalization, name and address of at- port of Motor Vehicle Accident, Stand- tending physician and hospital, and ard Form 91. This operator’s report amount of medical, hospital, and burial shall be made even though the operator expenses actually incurred; occupation of the other vehicle, or any other per- and wage or salary of civilians injured son involved, states that no claim will or killed; and names, addresses, ages, be filed, or the only vehicles involved relationship, and extent of dependency are Government owned. An accident of survivors of any such person fatally shall be reported by the operator re- injured should be included. gardless of who was injured, what prop- (4) If straying animals are involved, a erty was damaged, or who was respon- statement as to whether the jurisdic- sible. The operator’s report shall be re- tion has an ‘‘open range law’’ and, if so, reference to such statute. ferred to the investigating officer, who (5) A statement as to whether any shall be responsible for examining it person involved violated any State or for completeness and accuracy and who Federal statute, local ordinance, or in- shall file it for future reference or for stallation regulation and, if so, in what attachment to any subsequent inves- respect. The statute, ordinance, or reg- tigative report of the accident. ulation should be set out in full. (g) Priority of the investigation. To en- (6) A statement on whether a police sure prompt investigation of every in- investigation was made. A copy of the cident while witnesses are available police report of investigation should be and before damage has been repaired, included if available. the duties of an investigating officer (7) A statement on whether arrests shall ordinarily have priority over any were made or charges preferred, and other assignments he may have. the result of any trial or hearing in (h) Contents of the report of investiga- civil or military courts. tion. The report should include the fol- (i) Expert opinions. In appropriate lowing items in addition to the require- cases the opinion of an expert may be ments in § 750.3(c): required to evaluate the extent of dam- (1) If pertinent to the investigation, age to a potential claimant’s property. the investigating officer should obtain In such cases the investigating officer a statement from claimant’s employer should consult Navy-employed experts, showing claimant’s occupation, wage experts employed by other departments or salary, and time lost from work as a of the U.S. Government, or civilian ex- result of the incident. In case of per- perts to obtain a competent assessment sonal injury, the investigating officer of claimant’s damages or otherwise to should ask claimant to submit a writ- protect the Government’s interest. Any ten statement from the attending phy- cost involved with obtaining the opin- sician setting forth the nature and ex- ion of an expert not employed by the tent of injury and treatment, the dura- Navy shall be borne by the command tion and extent of any disability, the conducting the investigation. Any cost
377
VerDate 25
involved in obtaining the opinion of a § 750.34(c)(2)(ii) has the responsibility to Navy-employed expert shall be borne ensure that remedial action is taken to by the command to which the expert is rectify noncompliance indicated in the attached. Medical experts shall be em- investigative report prior to forward- ployed only after consultation with the ing the report to the Judge Advocate Chief, Bureau of Medicine and Surgery. General. (j) Action by command initiating the in- vestigation and subsequent reviewing au- § 750.4 Claims: In general. thorities. (1) The command initiating (a) Claims against the United States. the investigation in accordance with Claims against the United States shall § 750.3 or § 750.5 shall review the report receive prompt and professional dis- of investigation. If additional inves- position. Every effort will be made to tigation is required or omissions or ensure an investigation is thoroughly other deficiencies are noted, the inves- and accurately completed, the claim- tigation should be promptly returned ant’s allegations evaluated promptly, with an endorsement indicating that a and where liability is established, a supplemental investigative report will check issued as quickly as possible to be submitted. If the original or supple- prevent further harm to a meritorious mental report is in order, it shall be claimant. Similarly, claims not payble forwarded by endorsement, with any will be processed promptly and the pertinent comments and recommenda- claimant advised of the reasons for the tions. An advance copy of the inves- denial. tigation shall be forwarded to the Naval Legal Service Command activity (b) Claims in favor of the United States. having territorial responsibility for the Potential claims in favor of the United area where the incident giving rise to States will be critically evaluated and, the claim occurred as indicated in where appropriate, promptly asserted § 750.34(c)(2)(ii). and aggressively pursued. (2) A reviewing authority may direct (c) Assistance to Claimants. Claimants that additional investigation be con- or potential claimants who inquire ducted, if considered necessary. The about their rights or the procedures to initial investigation should not be re- be followed in the resolution of their turned for such additional investiga- claims will be referred to a claims offi- tion, but should be forwarded by an en- cer. The officer will provide claim dorsement indicating that the supple- forms, advise where the forms should mental material will be submitted. The be filed, and inform the requester of report shall be endorsed and forwarded the type of subtantiating information to the next-level authority with appro- required. Claims officers may provide priate recommendations including an advice on the claims process but shall assessment of the responsibility for the not provide advice or opinions about incident and a recommendation as to the merits or the wisdom of filing a the disposition of any claim that may particular claim. While claims officers subsequently be filed. If a reviewing have a responsiblity to provide general authority may be an adjudicating au- information about claims, they must thority for a claim subsequently filed, consider 18 U.S.C. 205 which makes it a one copy of the report shall be retained crime for an officer or employee of the by such authority for at least 2 years United States to act as an agent or an after the incident. attorney in the prosecution of any (3) It is essential that each investiga- claim against the United States. tive report reflect that a good faith ef- fort was made to comply with the Pri- § 750.5 Claims: Proper claimants. vacy Act of 1974 (5 U.S.C. 552a) as im- (a) Damage to property cases. A claim plemented by 32 CFR part 701, subpart for damage to, or destruction or loss of, F. Any indication of noncompliance property shall be presented by the shall be explained either in the pre- owner of the property or a duly author- liminary statement or the forwarding ized agent or legal representative. endorsements and, when required, cor- ‘‘Owner’’ includes a bailee, lessee, or rected. The adjudicating Naval Legal mortgagor, but does not include a Service Command activity listed in mortgagee, conditional vendor, or
378
VerDate 25
other person having title for security Personnel Claims Act shall be submit- purposes only. ted on DD Form 1842. The claim and all (b) Personal injury and death cases. A other papers requiring the signature of claim for personal injury shall be pre- the claimant shall be signed by the sented by the person injured or a duly claimant personally or by a duly au- authorized agent or legal representa- thorized agent. If signed by an agent or tive, or, in the case of death, by the legal representative, the claim shall in- properly appointed legal representative dicate the title or capacity of the per- of the deceased’s estate or survivor son signing and be accompanied by evi- where authorized by State law. dence of appointment. When more than (c) Subrogation. A subrogor and a one person has a claim arising from the subrogee may file claims jointly or sep- same incident, each person shall file a arately. When separate claims are filed claim separately. A subrogor and a and each claim individually is within subrogee may file a claim jointly or local adjudicating authority limits, separately. they may be processed locally, even if the aggregate of such claims exceeds (b) To whom submitted. Claims under local monetary jurisdiction, if they do the Federal Tort and Military Claims not exceed the sum for which approval Acts shall be submitted to the com- of the Department of Justice is re- manding officer of the Navy or Marine quired (currently, $100,000.00) under the Corps activity involved, if known. Oth- Federal Tort Claims Act. Where they erwise, they shall be submitted to the exceed this amount, they shall be re- commanding officer of any Navy or ferred to the Claims and Tort Litiga- Marine Corps activity, preferably the tion Division. one nearest to where the accident oc- (d) Limitation on transfers and assign- curred, the local Naval Legal Service ment. All transfers and assignments Command activity, or to the Judge Ad- made of any claim upon the United vocate General, 200 Stovall Street, Al- States, and all powers of attorney, or- exandria, VA 22332–2400. ders, or other authorities for receiving payment of any such claim, are abso- § 750.7 Claims: Action by receiving lutely null and void unless they are command. made after the allowance of such a (a) Record date of receipt. The first claim, the ascertainment of the command receiving a claim shall amount due, and the issuing of a war- stamp or mark the date of recipt on rant for the payment thereof. 31 U.S.C. the letter or claim form. The envelope 203. This statutory provision does not in which the claim was received shall apply to the assignment of a claim by be preserved. operation of law, as in the case of a re- (b) Determine the military activity in- ceiver or trustee in bankruptcy ap- volved. The receiving command shall pointed for an individual, firm, or cor- determine the Navy or Marine Corps poration, or the case of an adminis- trator or executor of the estate of a activity most directly involved with person deceased, or an insurer sub- the claim—usually the command where rogated to the rights of the insured. the incident is alleged to have oc- curred—and forward a copy of the § 750.6 Claims: Presentment. claim to that activity. The original (a) Written demand and Standard Form claim (and the transmittal letter, if a 95. A claim shall be submitted by pre- copy is forwarded to a more appro- senting a written statement with the priate activity) should immediately be amount of the claim expressed in a sum sent to the servicing Naval Legal Serv- certain, and, as far as possible, describ- ice Command activity claims office. ing the detailed facts and cir- (c) Initiate an investigation. An inves- cumstances surrounding the incident tigation under this part shall be com- from which the claim arose. The Claim menced immediately by the command for Damage or Injury, Standard Form most directly involved with the claim. 95, shall be used whenever practical for Once the investigation has been com- claims under the Federal Tort and pleted, an advance copy shall be for- Military Claims Acts. Claims under the warded by the convening authority to
379
VerDate 25
the Naval Legal Service Command ac- the adjudicating authority limits es- tivity providing claims support. Wait- tablished in this instruction, the claim ing until endorsements have been ob- shall be referred promptly to the Judge tained before providing a copy of the Advocate General. The following mate- investigation to the cognizant claims rials shall be forwarded with the claim: adjudicating authority is neither re- (i) An official endorsement or letter quired nor desirable. The facts of the of transmittal containing a rec- incident must be made known to cog- ommendation on resolution of the nizant claims personnel as soon as pos- claim. sible. (ii) A memorandum of law containing a review of applicable law, an evalua- § 750.8 Claims: Responsibility of the tion of liability, and recommendation adjudicating authority. on the settlement value of the case. (a) Reviewing prior actions. The adju- This memorandum should concentrate dicating authority determines whether on the unusual aspects of applicable an adequate investigation has been law, chronicle the attempts to resolve conducted, whether the initial receipt the claim at the local level, provide in- date is recorded on the face of the formation about the availability of claim, and whether all holders of the witnesses, and outline any other infor- investigation, if completed, are advised mation material to a resolution of the of the receipt of the claim. claim, i.e. prior dealings with the (b) Determining sufficiency of the claim. claimant’s attorney, local procedural The claim should be reviewed and a de- rules, or peculiarities that may make termination of its sufficiency made. If trial difficult. The memorandum the claim is not sufficient as received, should not repeat information readily it shall be returned to the party who obtained from the investigative report submitted it along with an explanation and should be tailored to the complex- of the insufficiency. This does not con- ity of the issues presented. An abbre- stitute denial of the claim. The claim viated memorandum should be submit- shall not be considered ‘‘presented’’ ted if the claim is statutorily barred until it is received in proper form. because of the statute of limitations or (c) Adjudicating the claim. (1) The ad- Federal Employees’ Compensation Act judicating authority shall evaluate and or otherwise barred because of the either approve or disapprove all claims Feres doctrine. within its authority, except where the (iii) The original investigative report payment of multiple Federal Torts and all allied papers. Claims Act claims arising from the (iv) The original claim filed by the same incident will exceed $100,000.00 in claimant (and the envelope in which it the aggregate and thereby require ap- arrived, if preserved). The adjudicating proval of the Department of Justice. In authority shall retain at least one copy this latter instance, the claims and the of all papers forwarded to the Judge investigative report shall be forwarded Advocate General under this section. to the Judge Advocate General for ac- (d) Preparing litigation reports. A liti- tion. gation report is prepared when a law- (2) The adjudicating authority shall suit is filed and a complaint received. evaluate and, where liability is estab- The report is addressed to the Depart- lished, attempt to settle claims for ment of Justice official or the U.S. At- amounts within its adjudicating au- torney having cognizance of the mat- thority. Permission of higher authority ter. The report is a narrative summary to conduct settlement negotiations to of the facts upon which the suit is effect such settlements is not nec- based and has as enclosures the claims essary. Negotiation at settlement fig- file and a memorandum of law on the ures above the adjudicating authority’s issues presented. payment limits may be attempted if (1) When the claim has been for- the claimant is informed that the final warded to the Judge Advocate General decision on the claim will be made at a prior to the initiation of a suit, litiga- higher level. tion reports originate in the Claims (3) If a claim cannot be approved, set- and Tort Litigation Division of the Of- tled, compromised, or denied within fice of the Judge Advocate General.
380
VerDate 25
(2) When, however, the claim has not or the civil action provisions of 28 been forwarded and is still under the U.S.C. 1346(b) also constitutes a com- cognizance of the Naval Legal Service plete release of any claim against any Command claims office, that command employee of the Government whose act will ordinarily be required to prepare or omission gave rise to the claim. and forward the litigation report to the requesting organization. In this in- § 750.11 Claims: Denial. stance, the litigation report should be A final denial of any claim within sent directly to the cognizant Depart- this chapter shall be in writing and ment of Justice official or U.S. Attor- sent to the claimant, his attorney, or ney with a copy of the report and all legal representative by certified or reg- enclosures to the Judge Advocate Gen- istered mail with return receipt re- eral. quested. The denial notification shall § 750.9 Claims: Payments. include a statement of the reason or reasons for the denial. The notification Claims approved for payment shall be shall include a statement that the expeditiously forwarded to the disburs- claimant may: ing office or the General Accounting (a) If the claim is cognizable under Office depending on the claims act in- the Federal Tort Claims Act, file suit volved and the amount of the requested in the appropriate United States Dis- payment. Generally, payment of a Fed- trict Court within 6 months of the date eral tort claim above $2,500.00 requires of the denial notification. submission of the payment voucher to the General Accounting Office. All (b) If the claim is cognizable under other field authorized payment vouch- the Military Claims Act, appeal in ers are submitted directly to the serv- writing to the Secretary of the Navy icing disbursing office for payment. within 30 days of the receipt of the de- nial notification. The notice of denial § 750.10 Claims: Settlement and re- shall inform the claimant or his rep- lease. resentative that suit is not possible (a) Fully and partially approved claims. under the Act. When a claim is approved for payment § 750.12 Claims: Action when suit filed. in the amount claimed, no settlement agreement is necessary. When a federal (a) Action required of any Navy official tort, military, or non-scope claim is receiving notice of suit. The commence- approved for payment in a lesser ment, under the civil action provisions amount than that claimed, the claim- of the Federal Tort Claims Act (28 ant must indicate in writing a willing- U.S.C. 1346(b)), of any action against ness to accept the offered amount in the United States and involving the full settlement and final satisfaction of Navy, that comes to the attention of the claim. In the latter instance, no any official in connection with his offi- payment will be made until a signed cial duties, shall be reported imme- settlement agreement has been re- diately to the commanding officer of ceived. the servicing Naval Legal Service Com- (b) Release. (1) Acceptance by the mand activity who shall take any nec- claimant of an award or settlement essary action and provide prompt noti- made by the Secretary of the Navy or fication to the Judge Advocate Gen- designees, or the Attorney General or eral. The commencement of a civil ac- designees, is final upon acceptance by tion against an employee of the Navy the claimant. Acceptance is a complete for actions arising from the perform- release by claimant of any claim ance of official duties shall be reported against the United States by reason of in the same manner. the same subject manner. Claimant’s (b) Steps upon commencement of civil acceptance of an advance payment does action. Upon receipt by the Judge Ad- not have the same effect. vocate General of notice from the De- (2) The claimant’s acceptance of an partment of Justice or other source award or settlement made under the that a civil action involving the Navy provisions governing the administra- has been initiated under the civil ac- tive settlement of Federal tort claims tion provisions of the Federal Tort
381
VerDate 25
Claims Act, and there being no inves- (1) Department of the Army: Austria, tigative report available at the head- Belgium, El Salvador, France, the Fed- quarters, a request shall be made to eral Republic of Germany, Grenada, the commanding officer of the appro- Honduras, Korea, the Marshall Islands, priate Naval Legal Service Command and Switzerland and as the Receiving activity for an investigative report State Office in the United States under into the incident. If there is not a com- 10 U.S.C. 2734a and 2734b and the NATO pleted investigation, the request shall Status of Forces Agreement, and other be forwarded to the appropriate naval Status of Forces Agreements with activity to convene and complete such countries not covered by the NATO a report. The commanding officer of agreement. the Naval Legal Service Command ac- (2) Department of the Navy: Bahrain, tivity shall determine whether an ad- Iceland, Israel, Italy, Portugal, and Tu- ministrative claim had been filed and, nisia. if available information indicates none (3) Department of the Air Force: Aus- had, advise the Office of the Judge Ad- tralia, Azores, Canada, Cyprus, Den- vocate General (Claims and Tort Liti- mark, Greece, India, Japan, Luxem- gation Division) immediately. bourg, Morocco, Nepal, Netherlands, Norway, Pakistan, Saudi Arabia, § 750.13 Claims: Single service respon- Spain, Turkey, the United Kingdom, sibility. Egypt, Oman, and claims involving, or (a) The Department of Defense has generated by, the U.S. Central Com- assigned single-service responsibility mand (CENTCOM) and the U.S. Special for processing claims in foreign coun- Operations Command (USSOC), that tries under the following acts. The arise in countries not specifically as- service and country assignments are in signed to the Departments of the Army DODDIR 5515.8 of 9 June 1990.1 and the Navy. (1) Foreign Claims Act (10 U.S.C. (c) U.S. forces afloat cases under 2734); $2,500.00. Notwithstanding the single (2) Military Claims Act (10 U.S.C. service assignments above, the Navy 2733); may settle claims under $2,500.00 (3) International Agreements Claims caused by personnel not acting within Act (10 U.S.C. 2734a and b), on the pro- the scope of employment and arising in rata cost sharing of claims pursuant to foreign ports visited by U.S. forces international agreement; afloat and may, subject to the concur- (4) NATO Status of Forces Agree- rence of the authorities of the receiv- ment (4 UST 1792, TIAS 2846) and other ing state concerned, process such similar agreements; claims. (5) Medical Care Recovery Act (42 U.S.C. 2651–2653) claims for reimburse- §§ 750.14–750.20 [Reserved] ment for medical care furnished by the United States; Subpart B—Federal Tort Claims (6) Nonscope Claims Act (10 U.S.C. Act 2737), claims not cognizable under any other provision of law; § 750.21 Scope of subpart B. (7) Federal Claims Collection Act of This subpart provides information re- 1966 (31 U.S.C. 3701); the Act of June garding the administrative processing 1921 (31 U.S.C. 3702), claims and de- and consideration of claims against the mands by the U.S. Government; and United States under the FTCA. The (8) Public Law 87–212 (10 U.S.C. 2736), FTCA is a limited waiver of sovereign advance or emergency payments. immunity. Under the FTCA, an indi- (b) Single service assignments for vidual can seek money damages for processing claims mentioned above are personal injury, death, or property as follows: damage caused by the negligent or wrongful act or omission of a Federal 1 Copies may be obtained if needed, from employee acting within the scope of Commanding Officer, U.S. Naval Publica- employment. The FTCA also provides tions and Forms Center, 5801 Tabor Avenue, for compensation for injuries caused by Philadelphia, PA 19120. certain intentional, wrongful conduct.
382
VerDate 25
The liability of the United States is de- searches, to seize evidence, or to make termined in accordance with the law of arrests for violations of Federal law. 28 the State where the act or omission U.S.C. 2680(h). occured. (c) Government employees—(1) General . ‘‘Employee of the Government,’’ de- § 750.22 Exclusiveness of remedy. fined at 28 U.S.C. 2671, includes officers (a) The Federal Employees Liability or employees of any Federal agency, Reform and Tort Compensation Act of members of the U.S. military or naval 1988, Public Law 100–694 (amending 28 forces, and persons acting on behalf of U.S.C. 2679(b) and 2679(d)), provides a Federal agency in an official capac- that the exclusive remedy for damage ity. or loss of property, or personal injury (2) Government contractors Govern- or death arising from the negligent or ment (also referred to as independent) wrongful acts or omissions of all Fed- contractors, are those individuals or eral employees, acting within the scope businesses who enter into contracts of their employment, will be against with the United States to provide the United States. This immunity from goods or services. Because the defini- personal liability does not extend to al- tion of ‘‘Federal agency,’’ found at 28 legations of constitutional torts, nor to U.S.C. 2671, specifically excludes ‘‘any allegations of violations of statutes contractor with the United States,’’ specifically authorizing suits against the United States is generally not lia- individuals. ble for the negligence of Government (b) Other statutory provisions create contractors. There are, however, three immunity from personal liability for limited exceptions to the general rule, specific categories of Federal employ- under which a cause of action against ees whose conduct, within the scope of the United States has been found to their employment, gives rise to claims exist in some jurisdictions. They are: against the Government. Department (i) Where the thing or service con- of Defense health care providers are tracted for is deemed to be an ‘‘inher- specifically protected by 10 U.S.C. 1089, ently dangerous activity’’; the Gonzalez Act. DOD attorneys are (ii) where a nondelegable duty in the specifically protected by 10 U.S.C. 1054. employer has been created by law; or, (iii) where the employer retains con- § 750.23 Definitions. trol over certain aspects of the con- (a) Negligent conduct. Generally, neg- tract and fails to discharge that con- ligence is the failure to exercise that trol in a reasonable manner. degree of care, skill, or diligence a rea- (3) Employees of nonappropriated-fund sonable person would exercise under activities. Nonappropriated-fund activi- similar circumstances. Negligent con- ties are entities established and oper- duct can result from either an act or a ated for the benefit of military mem- failure to act. The law of the place bers and their dependents, and have where the conduct occurred will deter- been judicially determined to be mine whether a cause of action lies ‘‘arms’’ of the Federal government. against the Government. 28 U.S.C. These entities operate from self-gen- 1346(b) and 2674. erated funds, rather than from funds (b) Intentional torts. Although any appropriated by Congress. Examples in- employee who commits an intentional clude Navy and Marine Corps Ex- tort is normally considered to be act- changes, officer or enlisted clubs, and ing outside the scope of employment, recreational services activities. A the FTCA does allow claimants to seek claim arising out of the act or omission compensation for injuries arising out of an employee of a nonappropriated- of the intentional torts of assault, bat- fund activity not located in a foreign tery, false imprisonment, false arrest, country, acting within the scope of em- abuse of process, and malicious pros- ployment, is an act or omission com- ecution, if committed by a Federal in- mitted by a Federal employee and will vestigative or law enforcement officer. be handled in accordance with the An ‘‘investigative or law enforcement FTCA. officer’’ is any officer of the United (d) Scope of employment. ‘‘Scope of States empowered by law to execute employment’’ is defined by the law of
383
VerDate 25
respondeat superior (master and serv- forces, or the Coast Guard, during time ant) of the place where the act or omis- of war. sion occurred. Although 28 U.S.C. 2671 (2) Additional claims not payable. Al- states that acting within the scope of though not expressly statutorily ex- employment means acting in the line cepted, the following types of claims of duty, the converse is not always shall not be paid under the FTCA: true. For administrative purposes, a (i) A claim for personal injury or Government employee may be found death of a member of the armed forces ‘‘in the line of duty,’’ yet not meet the of the United States incurred incident criteria for a finding of ‘‘within the to military service or duty. Compare scope of employment’’ under the law of United States v. Johnson, 481 U.S. 681 the place where the act or omission oc- (1987); Feres v. United States, 340 U.S. 135 curred. (1950) with Brooks v. United States, 337 U.S. 49 (1949); § 750.24 Statutory/regulatory author- (ii) Any claim by military personnel ity. or civilian employees of the Navy, paid The statutory provisions of the Fed- from appropriated funds, for personal eral Tort Claims Act (FTCA) are at 28 property damage occurring incident to U.S.C. 1346(b), 2671–2672, and 2674–2680. service or Federal employment, cog- The Attorney General of the United nizable under 31 U.S.C. 3721 and the ap- States has issued regulations on ad- plicable Personnel Claims Regulations, ministrative claims filed under the 32 CFR part 751; FTCA at 28 CFR part 14. If the provi- (iii) Any claim by employees of non- sions of this section and the Attorney appropriated-fund activities for per- General’s regulations conflict, the At- sonal property damage occurring inci- torney General’s regulations prevail. dent to Federal employment. These claims will be processed as indicated in § 750.25 Scope of liability. 32 CFR part 756; (a) Territorial limitations. The FTCA (iv) Any claim for personal injury or does not apply to any claim arising in death covered by the Federal Employ- a foreign country. 28 U.S.C. 2680(k) and ees’ Compensation Act (5 U.S.C. 8116c); Beattie v. United States, 756 F.2d 91 (D.C. (v) Any claim for personal injury or Cir. 1984). death covered by the Longshore and (b) Exclusions from liability. Statutes Harbor Workers’ Compensation Act (33 and case law have established cat- U.S.C. 905 and 5 U.S.C. 8171); egories of exclusions from FTCA liabil- (vi) That portion of any claim for ity. personal injury or property damage, (1) Statutory exclusions. Section 2680 caused by the negligence or fault of a of Title 28 lists claims not cognizable Government contractor, to the extent under the FTCA. They include: such contractor may have assumed li- (i) Claims based on the exercise or ability under the terms of the contract performance of, or the failure to exer- (see United States v. Seckinger, 397 U.S. cise or perform, a discretionary Gov- 203 (1969) and § 750.23(c)(2); ernment function; (vii) Any claim against the Depart- (ii) Admiralty claims under 46 U.S.C. ment of the Navy by another Federal 741–752 or 781–790. Claims under the agency. Property belonging to the Gov- Death on the High Seas Act (46 U.S.C. ernment is not owned by any one de- 761), however, are cognizable under the partment of the Government. The Gov- FTCA. All admiralty claims will be re- ernment does not reimburse itself for ferred to the Judge Advocate General the loss of its own property except for adjudication. Admiralty claims where specifically provided for by law; against the Navy shall be processed and under part 752 of this Chapter; (viii) Any claim for damage to a vehi- (iii) Claims arising from intentional cle rented pursuant to travel orders. torts, except those referred to in § 750.23(b); § 750.26 The administrative claim. (iv) Claims arising from the combat (a) Proper claimant. See § 750.5 of this activities of the military or naval part.
384
VerDate 25
(b) Claim presented by agent or legal monthly or yearly earnings and the du- representative. A claim filed by an agent ration of last employment; or legal representative will be filed in (iii) Full names, addresses, birth the name of the claimant; be signed by dates, relationship, and marital status the agent or legal representative; show of the decedent’s survivors, including the title or legal capacity of the person identification of survivors dependent signing; and be accompanied by evi- for support upon decedent at the time dence of the individual’s authority to of death; file a claim on behalf of the claimant. (iv) Degree of support provided by de- (c) Proper claim. A claim is a notice in cedent to each survivor at time of writing to the appropriate Federal death; agency of an incident giving rise to (v) Decedent’s general physical and Government liability under the FTCA. mental condition before death; It must include a demand for money (vi) Itemized bills for medical and damages in a definite sum for property burial expenses; damage, personal injury, or death al- (vii) If damages for pain and suffering leged to have occurred by reason of the are claimed, a physician’s detailed incident. The Attorney General’s regu- statement specifying the injuries suf- lations specify that the claim be filed fered, duration of pain and suffering, on a Standard Form 95 or other written any drugs administered for pain, and notification of the incident. If a letter the decedent’s physical condition dur- or other written notification is used, it ing the interval between injury and is essential that it set forth the same death; and, basic information required by Standard (viii) Any other evidence or informa- Form 95. Failure to do so may result in tion which may affect the liability of a determination that the administra- the United States. tive claim is incomplete. A suit may be (2) Personal injury. (i) A written re- dismissed on the ground of lack of sub- port by attending physician or dentist ject matter jurisdiction based on on the nature and extent of the injury, claimant’s failure to present a proper nature and extent of treatment, any claim as required by 28 U.S.C. 2675(a). degree of temporary or permanent dis- (d) Presentment. A claim is deemed ability, the prognosis, period of hos- presented when received by the Navy in pitalization, any any diminished earn- proper form. A claim against another ing capacity. In addition, the claimant agency, mistakenly addressed to or may be required to submit to a phys- filed with the Navy shall be transferred ical or mental examination by a physi- to the appropriate agency, if ascertain- cian employed by any Federal agency. able, or returned to the claimant. A Upon written request, a copy of the re- claimant presenting identical claims port of the examining physician shall with more than one agency should be provided; identify every agency to which the (ii) Itemized bills for medical, dental, claim is submitted on every claim form and hospital expenses incurred, or presented. Claims officers shall coordi- itemized receipts of payments of such nate with all other affected agencies expenses; and ensure a lead agency is designated. (iii) A statement of expected ex- 28 CFR 14.2. penses for future treatment; (iv) If a claim is made for lost wages, § 750.27 Information and supporting a written statement from the employer documentation. itemizing actual time and wages lost; (a) Proper documentation. Depending (v) If a claim is made for lost self-em- on the type of claim, claimants may be ployed income, documentary evidence required to submit information, as fol- showing the amount of earnings actu- lows: ally lost; and (1) Death. (i) An authenticated death (vi) Any other evidence or informa- certificate or other competent evidence tion which may affect the liability of showing cause of death, date of death, the United States for the personal in- and age of the decedent; jury or the damages claimed. (ii) Decedent’s employment or occu- (3) Property damage. (i) Proof of own- pation at time of death, including ership;
385
VerDate 25
(ii) A detailed statement of the turn receipt requested. The notifica- amount claimed for each item of prop- tion of final denial shall include the erty; reasons for the denial. The notification (iii) An itemized receipt of payment shall include a statement informing for necessary repairs or itemized writ- the claimant of his right to file suit in ten estimates of the cost of repairs; the appropriate Federal district court (iv) A statement listing date of pur- not later than 6 months after the date chase, purchase price, and salvage of the mailing of the notification. 28 value where repair is not economical; CFR 14.9(a). and (v) Any other evidence or informa- § 750.31 Reconsideration. tion which may affect the liability of the United States for the property (a) Request. Prior to the commence- damage claimed. ment of suit and prior to the expiration (b) Failure to submit necessary docu- of the 6-month period for filing suit, a mentation. If claimant fails to provide claimant or his duly authorized agent sufficient supporting documentation, or legal representative may present a claimant should be notified of the defi- request for reconsideration to the au- ciency. If after notice of the deficiency, thority who denied the claim. The re- including reference to 28 CFR 14.4, the quest shall be in writing and shall information is still not supplied, two state the reasons for the requested re- follow-up requests should be sent by consideration. A request for reconsider- certified mail, return receipt re- ation is presented on the date it is re- quested. If after a reasonable period of ceived by the DON. 28 CFR 14.9(b). time the information is still not pro- (b) Proper basis. A request for recon- vided, the appropriate adjudicating au- sideration shall set forth claimant’s thority should deny the claim. reasons for the request, and shall in- clude any supplemental supporting evi- § 750.28 Amendment of the claim. dence or information. Any writing A proper claim may be amended at communicating a desire for reconsider- any time prior to settlement, denial, or ation that reasonably appears to have the filing of suit. An amendment must been presented solely for the purpose of be submitted in writing and must be extending the statutory period for fil- signed by the claimant or duly author- ing suit, shall not be treated as a re- ized agent or legal representative. No quest for reconsideration. Claimant or finally denied claim for which recon- claimant’s authorized representative sideration has not been requested shall be notified promptly that the under § 750.31 may be amended. writing is not considered a proper re- § 750.29 Investigation and examina- quest for reconsideration. tion. (c) Effect of presentment of request. The Subpart A of this part requires an in- presentment of a proper request for re- vestigation for every incident that may consideration starts a new 6-month pe- result in a claim against or in favor of riod for the DON to act on the request the United States. Where a previously to reconsider. The claimant may not unanticipated claim is filed against the file suit until the expiration of the new Government and an investigation has 6-month period, or until after the date not already been conducted, the appro- of mailing of the final denial of the re- priate claims officer shall immediately quest. Final denial of a request for re- request an investigation. See subpart A consideration shall be accomplished in of this part for specific action required the manner prescribed in § 750.30. 28 by an adjudicating authority. CFR 14.9(b).
§ 750.30 Denial of the claim. § 750.32 Suits under the Federal Tort Final denial of an administrative Claims Act (FTCA). claim shall be in writing and shall be (a) Venue. Venue is proper only in the sent to the claimant, his duly author- judicial district where the plaintiff re- ized agent or legal representative by sides or where the act or omission com- certified or registered mail, with re- plained of occurred. 28 U.S.C. 1402.
386
VerDate 25
(b) Jury trial. There is no right to (c) Setoff. The United States is not trial by jury in suits brought under the obligated to pay twice for the same in- FTCA. 28 U.S.C. 2402. jury. Claimants under the FTCA may (c) Settlement. The Attorney General have received Government benefits or of the United States, or designee, may services as the result of the alleged arbitrate, compromise, or settle any tort. The cost of these services or bene- action filed under the FTCA. 28 U.S.C. fits shall be considered in arriving at 2677. any award of damages. For example, (d) Litigation support—(1) Who pro- the cost of medical or hospital services vides. The adjudicating authority hold- furnished at Government expense, in- ing a claim at the time suit is filed cluding CHAMPUS payments, shall be shall be responsible for providing nec- considered. Additionally, benefits or essary assistance to the Department of services received under the Veterans Justice official or U.S. Attorney re- Act (38 U.S.C. 101–800) must be consid- sponsible for defending the Govern- ered. Brooks v. United States, 337 U.S. 49 ment’s interests. (1949). (2) Litigation report. A litigation re- (d) Suit. Any damage award in a suit port, including a legal memorandum brought under the FTCA is limited to emphasizing anticipated issues during the amount claimed administratively litigation, shall be furnished to the ap- unless based on newly discovered evi- propriate Department of Justice offi- dence. 28 U.S.C. 2675(b). Plaintiff must cial or U.S. Attorney. prove the increased demand is based on (3) Pretrial discovery. Complete and facts not reasonably discoverable at timely responses to discovery requests the time of the presentment of the are vital to the effective defense of tort claim or on intervening facts relating litigation. Subject to existing person- to the amount of the claim. nel and resources available, appro- priate assistance shall be provided. The § 750.34 Settlement and payment. Judge Advocate General should be no- (a) Settlement agreement—(1) When re- tified promptly when special problems quired. A settlement agreement, signed are encountered in providing the re- by the claimant, must be received prior quested assistance. to payment in every case in which the (4) Preservation of evidence. Tort liti- claim is either: gation is often accomplished over an (i) Settled for less than the full extended period of time. Every effort amount claimed, or shall be made to preserve files, docu- (ii) The claim was not presented on a ments, and other tangible evidence Standard Form 95. that may bear on litigation. Destruc- (2) Contents. Every settlement agree- tion of such evidence, even in accord- ment must contain language indicating ance with routine operating proce- payment is in full and final settlement dures, undermines defense of a case. of the applicable claim. Each settle- ment agreement shall contain lan- § 750.33 Damages. guage indicating acceptance of the set- (a) Generally. The measure of dam- tlement amount by the claimant, or ages is determined by the law of the his agent or legal representative, shall place where the act or omission oc- be final and conclusive on the claim- curred. When there is a conflict be- ant, or his agent or legal representa- tween local and applicable Federal law, tive, and any other person on whose be- the latter governs. 28 U.S.C. 1346(b). half or for whose benefit the claim has (b) Limitations on liability. The United been presented, and shall constitute a States is not liable for interest prior to complete release of any claim against judgment or for punitive damages. In a the United States and against any em- death case, if the place where the act ployee of the Government whose con- or omission complained of occurred duct gave rise to the claim, by reason provides for only punitive damages, the of the same subject matter. 28 CFR United States will be liable in lieu 14.10(b). In cases where partial payment thereof, for actual or compensatory will benefit both claimant and the Gov- damages. 28 U.S.C. 2674. ernment, such as payment for property
387
VerDate 25
damage to an automobile, the settle- from a third party and the agency is ment agreement shall be tailored to re- unable to adjust the third party claim; flect the terms of the partial settle- (iv) The compromise of a particular ment. All settlement agreements shall claim, as a practical matter, will or contain a recitation of the applicable may control the disposition of a relat- statutory limitation of attorneys fees. ed claim in which the amount to be 28 U.S.C. 2678. paid may exceed $100,000.00; or (b) DON role in settlement negotiations (v) The DON is informed or is other- involving the U.S. Attorney or DOJ. wise aware that the United States or Agency concurrence is generally an employee, agent, or cost-plus con- sought by the Department of Justice or tractor of the United States is involved U.S. Attorney’s office prior to settle- in litigation based on a claim arising ment of suits involving the DON. Re- out of the same incident or trans- quests for concurrence in settlement action. proposals shall be referred to the ap- (2) Specific delegation and designa- propriate DON adjudicating authority tion—(i) Payment authority. with primary responsibility for mon- Federal Tort itoring the claim. Adjudicating au- Delegated and designated authority Claims Act thorities shall consult with the Judge Judge Advocate General ...... Unlimited. Advocate General concerning proposed Deputy Judge Advocate General ...... Unlimited. settlements beyond their adjudicating Assistant Judge Advocate General (Gen- Unlimited. authority. eral Law). Deputy Assistant Judge Advocate Gen- $100,000.00. (c) Payment of the claim—(1) Statutory eral (Claims and Tort Litigation) and authority. Pursuant to 28 U.S.C. 2672 Deputy Division Director. and in accordance with 28 CFR 14.6(a), Head, Federal Tort Claims Branch, $50,000.00. the Secretary of the Navy or designee, Claims and Tort Division, OJAG. Commanding Officers of Naval Legal $25,000.00. acting on behalf of the United States, Service Offices; Officers in Charge of may compromise or settle any claim Naval Legal Service Office Detach- filed against the Navy under the FTCA, ments when Specifically Designated by Cognizant Commanding Officers of provided any award, compromise, or Naval Legal Service Offices. settlement by the Navy in excess of $100,000.00 may be effected only with Any payment of over $100,000.00 must the prior written approval of the Attor- be approved by the Department of Jus- ney General or designee. Title 28 CFR tice. In addition, the authority to deny 14.6 requires consultation with the De- Federal Tort Claims is double the Fed- partment of Justice prior to com- eral Tort Claims Act approval author- promise or settlement of a claim in any ity shown above. The Judge Advocate amount when: General, the Deputy Judge Advocate (i) A new precedent or a new point of General, the Assistant Judge Advocate law is involved; General (General Law), and the Deputy (ii) A question of policy is or may be Assistant Judge Advocate General involved; (Claims and Tort Litigation) may deny (iii) The United States is or may be Federal Tort Claims in any amount. entitled to indemnity or contribution (ii) Territorial responsibility.
Responsible command Territory
NAVLEGSVCOFF Newport ...... Maine, Vermont, New Hampshire, Massachusetts, Rhode Island, and Connecticut. NAVLEGSVCOFF Philadelphia ...... Pennsylvania, New Jersey, Ohio, and New York. NAVLEGSVCOFF Washington, DC .. Maryland, the District of Columbia, and Northern Virginia area (zip 220±223). NAVLEGSVCOFF Norfolk ...... Virginia (less Northern Virginia areaÐzip 220±223), and West Virginia, North Carolina (counties of Currituck, Camden, Pasquotonk, Gates, Perquimans, Chowan, Dare, Tyrrell, Washington, Hyde, Beaufort, Pamlico, Craven, Jones, Carteret, and Onslow only), Bermuda, Iceland, Greenland, Azores, The Caribbean, The Republics of Guate- mala, El Salvador, Honduras, Nicaragua, Costa Rica, and Panama, Belize, Colombia, Venezuela, Guyana, French Guiana, Surinam, Brazil, Bolivia, Paraguay, Uruguay, Ar- gentina, and all Atlantic and Arctic Ocean areas and islands not otherwise assigned. NAVLEGSVCOFF Charleston ...... North Carolina (less counties of Currituck, Camden, Pasquotonk, Gates, Perquimans, Chowan, Dare, Tyrrell, Washington, Hyde, Beaufort, Pamlico, Craven, Jones, Carteret, Onslow), and Georgia (less Counties of Charlton, Camden, and Glynn). NAVLEGSVCOFF Jacksonville ...... That portion of Florida east of the western boundaries of Gadsen, Liberty, and Franklin Counties and Georgia (counties of Charlton, Camden, and Glynn).
388
VerDate 25
Responsible command Territory
NAVLEGSVCOFF Pensacola ...... Florida [Pensacola/Panama City area (zip 324±325)], Alabama, Louisiana and Mis- sissippi (that portion south of Washington, Humphreys, Holmes, Attala, Winston, and Noxubee Counties, and that portion of the Gulf of Mexico East of longitude 90 W). NAVLEGSVCOFF Memphis ...... Missouri, Tennessee, Kentucky, Arkansas, and that portion of Mississippi north of the southern boundaries of Washington, Humphreys, Holmes, Attala, Winston, and Noxubee Counties. NAVLEGSVCOFF Great Lakes ...... North Dakota, South Dakota, Nebraska, Minnesota, Michigan, Iowa, Wisconsin, Illinois, and Indiana. NAVLEGSVCOFF Corpus Christi ...... Texas. NAVLEGSVCOFF San Diego ...... California (Imperial County, San Diego County, and that area included in Marine Corps Base, Camp Pendleton extending into Orange County, only), that portion of Mexico in- cluding and West of the States of Chihuahua, Durango, Nayarit, Jalisoc, and Colima, Pacific Ocean areas and islands South of Latitude 45N and East of Longitude 135W, Ecuador, Peru, Chile, Arizona, New Mexico, Oklahoma, and Nevada (Clark County only). NAVLEGSVCOFF Long Beach ...... That portion of California in Kern, Santa Barbara, Ventura, Los Angeles and Orange Counties (excluding Marine Corps Base, Camp Pendleton), Riverside, San Bernadino, and the China Lake Naval Weapons Station Center. NAVLEGSVCOFF San Francisco ..... Northern California (Counties of San Luis Obispo, Kings, Tulare, Inyo, and all counties North thereof), Colorado, Nevada (less Clark County), Utah, and Kansas. NAVLEGSVCOFF Puget Sound ...... Washington, Oregon, Idaho, Montanta, Wyoming, and Alaska. NAVLEGSVCOFF Pearl Harbor ...... Hawaii, including Midway and Pacific Island possessions serviced from Hawaii. NAVLEGSVCOFF Mayport ...... Claims involving commands located at Naval Station, Mayport, Florida. NAVLEGSVCOFF Guam ...... Guam, The Trust Territory of The Pacific Islands, The Republic of The Marshall Island, The Federated States of Micronesia and The Commonwealth of The Northern Mari- anas. NAVLEGSVCOFF Yokosuka ...... Japan, Okinawa, Korea, that portion of the Eurasian Continent North of latitude 30N and East of longitude 60E, and those Pacific and Arctic Ocean areas and islands North of latitude 30N that are East of longitude 60E and West of longitude 170w. NAVLEGSVCOFF Naples ...... Europe, the African Continent (excluding that portion thereof assigned to NLSO Subic Bay), the Eurasian Continent (excluding that portion thereof assigned to NLSO Yokosuka and NLSO Subic Bay), and the Mediterranean. NAVLEGSVCOFF Subic Bay ...... Philippines, Hong Kong, Singapore, Diego Garcia, and unless otherwise specified, all Pacific and Indian Ocean areas and islands located between longitude 135E and lon- gitude 15E; Ethiopia, Somalia, Kenya, Tanzania, Mozambique, Swaziland, Lesotho, and South Africa; that portion of the Eurasian Continent South of latitude 30N and East of longitude 60E.
(3) Funding. Claims approved for § 750.36 Time limitations. $2,500.00 or less are paid from DON ap- (a) Administrative claim. Every claim propriations. Claims approved in excess filed against the United States under of $2,500.00 are paid from the judgment the FTCA must be presented in writing fund and must be forwarded to the within 2 years after the claim accrues. United States General Accounting Of- 28 U.S.C. 2401(b). Federal law deter- fice (GAO) for payment. 28 CFR mines the date of accrual. A claim ac- 14.10(a). Claims arising out of the oper- crues when the claimant discovers or ation of nonappropriated-fund activi- reasonably should have discovered the ties and approved for payment shall be existence of the act giving rise to the forwarded to the appropriate non- claim. In computing the statutory time appropriated-fund activity for pay- period, the day of the incident is ex- ment. cluded and the day the claim was pre- sented included. § 750.35 Attorney’s fees. (b) Amendments. Upon timely filing of Attorney’s fees are limited to 20 per- an amendment to a pending claim, the cent of any compromise or settlement DON shall have 6 months to make a of an administrative claim, and are final disposition of the claim as amend- limited to 25 percent of any judgment ed, and the claimant’s option to file rendered in favor of a plaintiff, or of suit under 28 U.S.C. 2675(a) shall not any settlement accomplished after suit accrue until 6 months after the pre- is filed. These amounts are to be paid sentment of an amendment. 28 CFR out of the amount awarded and not in 14.2(c). addition to the award. 28 U.S.C. 2678. (c) Suits. A civil action is barred un- less suit is filed against the United
389
VerDate 25
States not later than 6 months after § 750.43 Claims payable. the date of mailing of notice of final (a) General. Unless otherwise pre- denial of the claim. 28 U.S.C. 2401(b). scribed, a claim for personal injury, The failure of the DON to make final death, or damage or loss of real or per- disposition of a claim within 6 months sonal property is payable under this after it is presented shall, at the option provision when: of the claimant any time thereafter, be (1) Caused by an act or omission de- deemed a final denial of the claim. 28 termined to be negligent, wrongful, or U.S.C. 2675(a). otherwise involving fault of DON per- sonnel acting within the scope of their §§ 750.37–750.40 [Reserved] employment; or (2) Incident to noncombat activities Subpart C—Military Claims Act of the DON. A claim may be settled under this provision if it arises from § 750.41 Scope of subpart C. authorized activities essentially mili- This section prescribes the sub- tary in nature, having little parallel in stantive bases and special procedural civilian pursuits, and in which the U.S. requirements for the settlement of Government has historically assumed a claims against the United States for broad liability, even if not shown to death, personal injury, or damage, loss, have been caused by any particular act or destruction of property: or omission by DON personnel while (a) Caused by military personnel or ci- acting within the scope of their em- vilian employees of the Department of the ployment. Examples include practice Navy (DON) (hereinafter DON personnel). firing of missiles and weapons, sonic For the purposes of this section, DON booms, training and field exercises, and personnel include all military person- maneuvers that include operation of nel of the Navy and Marine Corps, vol- aircraft and vehicles, use and occu- unteer workers, and others serving as pancy of real estate, and movement of employees of the DON with or without combat or other vehicles designed espe- compensation, and members of the Na- cially for military use. Activities inci- tional Oceanic and Atmospheric Ad- dent to combat, whether or not in time ministration or of the Public Health of war, and use of DON personnel dur- Service when serving with the DON. ing civil disturbances are excluded. DON personnel does not include DON (b) Specific claims payable. Claims contractors or their employees. payable by the DON under § 750.43(a) (1) (b) Incident to noncombat activities of and (2) shall include, but not be limited the DON. Claims for personal injury or to: death of a member of the Armed Forces (1) Registered or insured mail. Claims or Coast Guard, or civilian officer or for damage to, loss, or destruction, employee of the U.S. Government even if by criminal acts, of registered whose injury or death is incident to or insured mail while in the possession service, however, are not payable. of DON authorities are payable under (c) Territorial limitation. There is no the MCA. This provision is an excep- geographical limitation on the applica- tion to the general requirement that tion of the MCA, but if a claim arising compensable damage, loss, or destruc- in a foreign country is cognizable tion of personal property be caused by under the Foreign Claims Act (10 DON personnel while acting within the U.S.C. 2734), the claim shall be proc- scope of their employment or otherwise essed under that statute. See 10 U.S.C. incident to noncombat activities of the 2733(b)(2). DON. The maximum award to a claim- (d) Suit. The MCA authorizes the ad- ant under this section is limited to ministrative settlement and payment that to which the claimant would be of certain claims. The United States entitled from the Postal Service under has not consented to be sued. the registry or insurance fee paid. The award shall not exceed the cost of the § 750.42 Statutory authority. item to the claimant regardless of the 10 U.S.C. 2733, as amended, commonly fees paid. Claimant may be reimbursed referred to as the Military Claims Act for the postage and registry or insur- (MCA). ance fees.
390
VerDate 25
(2) Property bailed to the DON. Claims indirectly from any act by armed for damage to or loss of personal prop- forces engaged in combat. erty bailed to the DON, under an ex- (c) Any claim for reimbursement of press or implied agreement are payable medical, hospital, or burial expenses to under the MCA, even though legally the extent already paid by the U.S. enforceable against the U.S. Govern- Government. ment as contract claims, unless by ex- (d) Any claim cognizable under: press agreement the bailor has as- (1) Military Personnel and Civilian sumed the risk of damage, loss, or de- Employees’ Claims Act, as amended. 31 struction. Claims filed under this para- U.S.C. 3721. graph may, if in the best interest of the (2) Foreign Claims Act. 10 U.S.C. 2734. U.S. Government, be referred to and (3) 10 U.S.C. 7622, relating to admi- processed by the Office of the General ralty claims. See part 752 of this Chap- Counsel, DON, as contract claims. ter. (3) Real property. Claims for damage to real property incident to the use and (4) Federal Tort Claims Act. 28 U.S.C. occupancy by the DON, whether under 2671, 2672, and 2674–2680. an express or implied lease or other- (5) International Agreements Claims wise, are payable under the MCA even Act. 10 U.S.C. 2734a and 2734b. though legally enforceable against the (6) Federal Employees’ Compensation DON as contract claims. Claims filed Act. 5 U.S.C. 8101–8150. under this paragraph may, if in the (7) Longshore and Harbor Workers’ best interest of the U.S. Government, Compensation Act. 33 U.S.C. 901–950. be referred to and processed by the Of- (e) Any claim for damage to or loss fice of the General Counsel, DON, as or destruction of real or personal prop- contract claims. erty founded in written contract [ex- (4) Property of U.S. military personnel. cept as provided in § 750.43(b) (2) and Claims of U.S. military personnel for (3)]. property lost, damaged, or destroyed (f) Any claim for rent of real or per- under conditions in § 750.43(a) (1) and (2) sonal property [except as provided in occurring on a military installation, § 750.43(b) (2) and (3)]. not payable under the Military Person- (g) Any claim involving infringement nel and Civilian Employees’ Claims of patents. Act, are payable under the MCA. (h) Any claim for damage, loss, or de- (5) Health care and Legal Assistance struction of mail prior to delivery by Providers. Claims arising from the per- the Postal Service to authorized DON sonal liability of DON health care and personnel or occurring due to the fault legal assistance personnel for costs, of, or while in the hands of, bonded per- settlements, or judgments for neg- sonnel. ligent acts or omissions while acting within the scope of assigned duties or (i) Any claim by a national, or cor- employment are payable under the poration controlled by a national, of a MCA. See § 750.54. country in armed conflict with the United States, or an ally of such coun- § 750.44 Claims not payable. try, unless the claimant is determined (a) Any claim for damage, loss, de- to be friendly to the United States. struction, injury, or death which was (j) Any claim for personal injury or proximately caused, in whole or in death of a member of the Armed Forces part, by any negligence or wrongful act or civilian employee incident to his on the part of the claimant, or his service. 10 U.S.C. 2733(b)(3). agent or employee, unless the law of (k) Any claim for damage to or loss the place where the act or omission of bailed property when bailor specifi- complained of occurred would permit cally assumes such risk. recovery from a private individual (l) Any claim for taking private real under like circumstances, and then property by a continuing trespass or by only to the extent permitted by the technical trespass such as overflights law. of aircraft. (b) Any claim resulting from action (m) Any claim based solely on com- by the enemy or resulting directly or passionate grounds.
391
VerDate 25
§ 750.45 Filing claim. section 750.27 of this part. A claim (a) Who may file. Under the MCA, spe- must be substantiated as required by cifically, the following are proper this Part in order to be paid. See 10 claimants: U.S.C. 2733(b)(5). (1) U.S. citizens and inhabitants. (f) Amendment of claim. A proper (2) U.S. military personnel and civil- claim may be amended by the claimant ian employees, except not for personal at any time prior to final denial or injury or death incident to service. payment of the claim. An amendment (3) Persons in foreign countries who shall be submitted in writing and are not inhabitants. signed by the claimant or a duly au- (4) States and their political subdivi- thorized agent or legal representative. sions (including agencies). (g) Payment. Claims approved for pay- (5) Prisoners of war for personal prop- ment shall be forwarded to such dis- erty, but not personal injury. bursing officer as may be designated by (6) Subrogees, to the extent they paid the Comptroller of the Navy for pay- the claim. ment from appropriations designated (b) Who may not file. (1) Inhabitants for that purpose. If the Secretary of of foreign nations for loss or injury oc- the Navy considers that a claim in ex- curring in the country they inhabit. (2) U.S. Government agencies and de- cess of $100,000.00 is meritorious and partments. would otherwise be covered by 10 (c) When to file/statute of limitations. U.S.C. 2733 and § 750.43, he may make a Claims against the DON must be pre- partial payment of $100,000.00 and refer sented in writing within 2 years after the excess to the General Accounting they accrue. In computing the 2 year Office for payment from appropriations period, the day the claim accrues is ex- provided therefore. cluded and the day the claim is pre- sented is included. If the incident oc- § 750.46 Applicable law. curs in time of war or armed conflict, (a) Claims arising within the United however, or if war or armed conflict in- States, Territories, Commonwealth, and tervenes within 2 years after its occur- Possessions. The law of the place where rence, an MCA claim, on good cause the act or omission occurred will be ap- shown, may be presented within 2 years plied in determining liability and the after the war or armed conflict is ter- effect of contributory or comparative minated. For the purposes of the MCA, negligence on claimant’s right of re- the date of termination of the war or covery. armed conflict is the date established (b) Claims within foreign countries. (1) by concurrent resolution of Congress or Where the claim is for personal injury, by the President. See 10 U.S.C. death, or damage to or loss or destruc- 2733(b)(1). tion of real or personal property caused (d) Where to file. The claim shall be by an act or omission determined to be submitted by the claimant to the com- negligent, wrongful, or otherwise in- manding officer of the naval activity involved, if it is known. Otherwise, it volving fault of DON personnel acting shall be submitted to the commanding within the scope of their employment, officer of any naval activity, preferably liability of the United States will be the one within which, or nearest to assessed under general principles of which, the incident occurred, or to the tort law common to the majority of Judge Advocate General of the Navy, American jurisdictions. 200 Stovall Street, Alexandria, VA (2) Apply the law of the foreign coun- 22332–2400. try governing the legal effect of con- (e) Claim form. A claim is correct in tributory or comparative negligence by form if it constitutes written notifica- the claimant to determine the relative tion of an incident, signed by the merits of the claim. If there is no for- claimant or a duly authorized agent or eign law on contributory or compara- legal representative, with a claim for tive negligence, apply traditional rules money damages in a sum certain. A of contributory negligence. Apply for- Standard Form 95 is preferred. A claim eign rules and regulations on operation should be substantiated as discussed in of motor vehicles (rules of the road) to
392
VerDate 25
the extent those rules are not specifi- miliar with the type of property dam- cally superseded or preempted by U.S. aged, lost, or destroyed. Armed Forces traffic regulations. (c) Loss of use of damaged property (c) Clarification of terms. The prin- which is economically repairable may, ciples of absolute liability and punitive if claimed, be included as an additional damages do not apply to claims under element of damage to the extent of the the MCA. Federal law determines the reasonable expense actually incurred meaning and construction of the MCA. for appropriate substitute property, for such period reasonably necessary for § 750.47 Measure of damages for prop- repairs, as long as idle property of the erty claims. claimant was not employed as a sub- Determine the measure of damages in stitute. When substitute property is property claims arising in the United not obtainable, other competent evi- States or its territories, common- dence such as rental value, if not spec- wealth, or possessions under the law of ulative or remote, may be considered. the place where the incident occurred. When substitute property is reasonably Determine the measure of damages in available but not obtained and used by property claims arising overseas under the claimant, loss of use is normally general principles of American tort not payable. law, stated as follows: (a) If the property has been or can be § 750.48 Measure of damages in injury economically repaired, the measure of or death cases. damages shall be the actual or esti- (a) Where an injury or death arises mated net cost of the repairs necessary within the United States or its terri- to substantially restore the property to tories, commonwealth, or possessions, the condition that existed immediately determine the measure of damages prior to the incident. Damages shall under the law of the location where the not exceed the value of the property injury arises. immediately prior to the incident less (b) Where an injury or death arises in the value thereof immediately after a foreign country and is otherwise cog- the incident. To determine the actual nizable and meritorious under this pro- or estimated net cost of repairs, the vision, damages will be determined in value of any salvaged parts or mate- accordance with general principles of rials and the amount of any net appre- American tort law. The following is ciation in value effected through the provided as guidance. repair shall be deducted from the ac- (1) Measure of Damages for Overseas tual or estimated gross cost of repairs. Personal Injury Claims. Allowable com- The amount of any net depreciation in pensation includes reasonable medical the value of the property shall be added and hospital expenses necessarily in- to such gross cost of repairs, if such ad- curred, compensation for lost earnings justments are sufficiently substantial and services, diminution of earning ca- in amount to warrant consideration. pacity, anticipated medical expenses, Estimates of the cost of repairs shall physical disfigurement, and pain and be based upon the lower or lowest of suffering. two or more competitive bids, or upon (2) Wrongful Death Claims Arising in statements or estimates by one or Foreign Countries. (i) Allowable com- more competent and disinterested per- pensation includes that in paragraph sons, preferably reputable dealers or of- (b)(1) of this section, burial expenses, ficials familiar with the type of prop- loss of support and services, loss of erty damaged, lost, or destroyed. companionship, comfort, society, pro- (b) If the property cannot be eco- tection, and consortium, and loss of nomically repaired, the measure of training, guidance, education, and nur- damages shall be the value of the prop- turing, as applicable. erty immediately prior to the incident (ii) The claim may be presented by or less the value immediately after the on behalf of the decedent’s spouse, par- incident. Estimates of value shall be ent, child, or dependent relative. made, if possible, by one or more com- Claims may be consolidated for joint petent and disinterested persons, pref- presentation by a representative of erably reputable dealers or officials fa- some or all of the beneficiaries or may
393
VerDate 25
be filed by a proper beneficiary individ- deny an appeal of a claim it had pre- ually. viously denied.
§ 750.49 Delegations of adjudicating § 750.50 Advance payments. authority. (a) Scope. This paragraph applies ex- (a) Settlement Authority. (1) The Sec- clusively to the payment of amounts retary of the Navy may settle claims in not to exceed $100,000.00 under 10 U.S.C. any amount. The Secretary may pay 2736 in advance of submission of a the first $100,000.00 and report the ex- claim. cess to the Comptroller General for (b) Statutory authority. Title 10 U.S.C. payment under 31 U.S.C. 1304. See 10 2736 authorizes the Secretary of the U.S.C. 2733(d). Navy or designee to pay an amount not (2) The Judge Advocate General has in excess of $100,000.00 in advance of the delegated authority to settle claims for submission of a claim to or for any per- $100,000.00 or less. son, or the legal representative of any (3) The Deputy Judge Advocate Gen- person, who was injured or killed, or eral, the Assistant Judge Advocate whose property was damaged or lost, as General (General Law), and the Deputy the result of an accident for which al- Assistant Judge Advocate General lowance of a claim is authorized by (Claims and Tort Litigation) have dele- law. Payment under this law is limited gated authority to settle claims for to that which would be payable under $25,000.00 or less. the MCA (10 U.S.C. 2733). Payment of (4) Naval Legal Service Office com- an amount under this law is not an ad- manding officers and the Officer in mission by the United States of liabil- Charge, U.S. Sending State Office for ity for the accident concerned. Any Italy have delegated authority to set- amount so paid shall be deducted from tle claims for $15,000.00 or less. any amount that may be allowed under (5) Officers in charge of Naval Legal any other provision of law to the per- Service Office Detachments, when spe- son or his legal representative for in- cifically designated by cognizant com- jury, death, damage, or loss attrib- manding officers of Naval Legal Serv- utable to the accident concerned. ice Offices; and the Claims Officer at the U.S. Naval Station, Panama Canal (c) Officials with Authority to make Ad- have delegated authority to settle vance Payments. (1) The Secretary of claims for $10,000.00 or less. the Navy has authority to make ad- (6) Overseas commands with a Judge vance payments up to $100,000.00 Advocate General’s Corps officer or a (2) The Judge Advocate General has judge advocate of the Marine Corps at- delegated authority to make advance tached, have delegated authority to payments up to $100,000.00. settle claims for $5,000.00 or less. (3) The Deputy Assistant Judge Ad- (b) Denial Authority. (1) The Sec- vocate General (Claims and Tort Liti- retary of the Navy may deny a claim in gation) has delegated authority to any amount. make advance payments up to (2) The Judge Advocate General, the $25,000.00. Deputy Judge Advocate General, the (4) Naval Legal Service Office com- Assistant Judge Advocate General manding officers and the Officer in (General Law), and the Deputy Assist- Charge, U.S. Sending State Office for ant Judge Advocate General (Claims Italy have delegated authority to make and Tort Litigation) have delegated au- advance payments up to $5,000.00. thority to deny claims in any amount. (5) Officers in Charge of Naval Legal (3) All other adjudicating authorities Service Office Detachments, when spe- have delegated authority to deny cifically designated by cognizant Com- claims only to the amount of their set- manding Officers of Naval Legal Serv- tlement authority. ice Offices; and the Staff Judge Advo- (c) Appellate Authority. Adjudicating cate at the U.S. Naval Station, Pan- authorities have the same authority as ama Canal have delegated authority to delegated in paragraph b above to act make advance payments up to $3,000.00. upon appeals. No appellate authority (6) Overseas commands with a Judge below the Secretary of the Navy may Advocate General’s Corps officer or a
394
VerDate 25
judge advocate of the Marine Corps at- claimant, or his attorney or legal rep- tached, have delegated authority to resentative, by certified or registered make advance payments up to $3,000.00. mail, return receipt requested. The no- (d) Conditions for Advance Payments. tification of denial shall include a Prior to making an advance payment statement of the reason or reasons for under 10 U.S.C. 2736, the adjudicating denial and that the claimant may ap- authority shall ascertain that: peal. The notification shall also inform (1) The injury, death, damage, or loss the claimant: would be payable under the MCA (10 (1) The title of the appellate author- U.S.C. 2733); ity who will act on the appeal and that (2) The payee, insofar as can be deter- the appeal will be addressed to the ad- mined, would be a proper claimant, or judicating authority who last acted on is the spouse or next of kin of a proper the claim. claimant who is incapacitated; (3) The provable damages are esti- (2) No form is prescribed for the ap- mated to exceed the amount to be paid; peal, but the grounds for appeal should (4) There exists an immediate need of be set forth fully. the person who suffered the injury, (3) The appeal must be submitted damage, or loss, or of his family, or of within 30 days of receipt by the claim- the family of a person who was killed, ant of notice of action on the claim. for food, clothing, shelter, medical, or burial expenses, or other necessities, § 750.52 Appeal. and other resources for such expenses (a) A claim which is disapproved in are not reasonably available; whole or in part may be appealed by (5) The prospective payee has signed the claimant at any time within 30 a statement that it is understood that days after receipt of notification of dis- payment is not an admission by the approval. An appeal shall be in writing Navy or the United States of liability and state the grounds relied upon. An for the accident concerned, and that appeal is not an adversary proceeding the amount paid is not a gratuity but and a hearing is not authorized; how- shall constitute an advance against ever, the claimant may obtain and sub- and shall be deducted from any amount mit any additional evidence or written that may be allowed under any other argument for consideration by the ap- provision of law to the person or his pellate authority. legal representative for injury, death, (b) Upon receipt, the adjudicating au- damage, or loss attributable to the ac- thority examines the appeal, deter- cident concerned; and mines whether the appeal complies (6) No payment under 10 U.S.C. 2736 may be made if the accident occurred with this regulation, and reviews the in a foreign country in which the claims investigative file to ensure it is NATO Status of Forces Agreement (4 complete. The claim, with the com- U.S.T. 1792, TIAS 2846) or other similar plete investigative file and a memoran- agreement is in effect and the injury, dum of law, will be forwarded to the death, damage, or loss appellate authority for action. If the (i) Was caused by a member or em- evidence in the file, including informa- ployee of the DON acting within the tion submitted by the claimant with scope of employment or the appeal, indicates the appeal should (ii) Occurred ‘‘incident to noncombat be approved, the adjudicating author- activities’’ of the DON as defined in ity may treat the appeal as a request § 750.43. for reconsideration. (c) Processing of the appeal may be § 750.51 Final disposition. delayed pending further efforts by the (a) Claimant to be notified. The adju- adjudicating authority to settle the dicating authority shall notify the claim. Where the adjudicating author- claimant, in writing, of the action ity does not reach a final agreement on taken on the claim. an appealed claim, it shall send the en- (b) Final denial. A final denial, in tire claim file to the next higher set- whole or in part, of any MCA claim tlement authority, who is the appellate shall be in writing and sent to the authority for that claim.
395
VerDate 25
(d) The appellate authority shall no- § 750.55 Attorney’s fees. tify the claimant in writing of the de- Attorney’s fees not in excess of 20 termination on appeal; that such deter- percent of any settlement may be al- mination constitutes the final adminis- lowed. Attorney’s fees so determined trative action on the claim; and there are to be paid out of the amount is no right to sue under the MCA. awarded and not in addition to the award. These fee limitations shall be § 750.53 Cross-servicing. incorporated in any settlement agree- (a) See § 750.13 or information about ment secured from a claimant. single-service claims responsibility under DODDIR 5515.8 of 9 June 1990. §§ 750.56–750.60 [Reserved] (b) Claims Settlement Procedures. Where a single service has been as- Subpart D—Claims Not Cog- signed a country or area claims respon- nizable Under Any Other Pro- sibility, that service will settle claims vision of Law cognizable under the MCA under the regulations of that service. The for- § 750.61 Scope of subpart D. warding command shall afford any as- This section provides information on sistance necessary to the appropriate payment of claims against the United service in the investigation and adju- States, not payable under any other dication of such claims. statute, caused by the act or omission, negligent, wrongful, or otherwise in- § 750.54 Payment of costs, settlements, volving fault, of Department of the and judgments related to certain Navy (DON) military and civilian per- medical or legal malpractice claims. sonnel (hereinafter DON personnel) (a) General. Requests for reimburse- acting outside the scope of their em- ment/indemnification of costs, settle- ployment. ments, and judgments cognizable under 10 U.S.C. 1089(f) [for personal injury or § 750.62 Statutory authority. death caused by any physician, dentist, Section 2737 of title 10, United States nurse, pharmacist, paramedic, or other Code, provides authority for the admin- supporting personnel (including medi- istrative settlement in an amount not cal and dental technicians, nurse as- to exceed $1,000.00 of any claim against sistants, and therapists)] or 10 U.S.C. the United States not cognizable under 1054(f) (for damages for injury or loss of any other provision of law for damage, property caused by any attorney, para- loss, or destruction of property or for legal, or other member of a legal staff) personal injury or death caused by while acting as DON personnel will be military personnel or a civilian official paid if: or employee of a military department (1) The alleged negligent or wrongful incident to the use of a vehicle of the actions or omissions arose in connec- United States at any place, or any tion with either providing health care other property of the United States on functions or legal services and within a Government installation. There is no right to sue. There are no territorial the scope of employment; and limitations and the Act has worldwide (2) Such personnel furnish prompt no- application. tification and delivery of all process served or received, and other docu- § 750.63 Definitions. ments, information, and assistance as requested; and cooperate in defending (a) Civilian official or employee. Any civilian employee of the DON paid from the action on the merits. appropriated funds at the time of the (b) Requests for Indemnification. All incident. requests for indemnification for per- (b) Vehicle. Includes every description sonal liability of DON personnel for of carriage or other artificial contriv- acts or omissions arising out of as- ance used, or capable of being used, as signed duties shall be forwarded to the a means of transportation on land. See Judge Advocate General for action. 1 U.S.C. 4.
396
VerDate 25
(c) Government installation. Any Fed- (i) Claims submitted solely under 10 eral facility having fixed boundaries U.S.C. 2737 shall be promptly consid- and owned or controlled by the U.S. ered. If a nonscope claim is denied, the Government. It includes both military claimant shall be informed of reasons bases and nonmilitary installations. in writing and advised he may appeal in writing to the Secretary of the Navy § 750.64 Claim procedures. (Judge Advocate General) provided the (a) The general provisions of subpart appeal is received within 30 days of the A of this part shall apply in determin- notice of denial. The provisions of ing what is a proper claim, who is a § 750.51(b) of subpart C also apply to de- proper claimant, and how a claim is to nials of nonscope claims. be investigated and processed under 10 U.S.C. 2737 and this section. § 750.65 Statute of limitations. (b) A claim is presented when the (a) A claim must be presented in DON receives from a claimant or the writing within 2 years after it accrues. claimant’s duly authorized agent, writ- It accrues at the time the claimant dis- ten notification of a nonscope claim in- covers, or in the exercise of reasonable cident accompanied by a demand for care should have discovered, the exist- money damages in a sum certain. ence of the act or omission for which (c) A claimant may amend a claim at the claim is filed. any time prior to final action. Amend- (b) In computing time to determine ments will be submitted in writing and whether the period of limitation has signed by the claimant or the claim- expired, exclude the incident date and ant’s duly authorized agent. include the date the claim was pre- (d) Claims submitted under the provi- sented. sions of the Federal Tort Claims Act (FTCA) or Military Claims Act (MCA) § 750.66 Officials with authority to set- shall be considered automatically for tle. an award under this section when pay- ment would otherwise be barred be- Judge Advocate General; Deputy cause the DON personnel were not in Judge Advocate General; Assistant the scope of their employment at the Judge Advocate General (General Law); time of the incident. If a tender of pay- Deputy Assistant Judge Advocate Gen- ment under this section is not accepted eral (Claims and Tort Litigation Divi- by the claimant in full satisfaction of sion); Head, Federal Tort Claims the claim, no award will be made, and Branch (Claims and Tort Litigation Di- the claim will be denied pursuant to vision); Head, Military Claims Branch the rules applicable to the statute (Claims and Tort Litigation Division), under which it was submitted. and commanding officers of Naval (e) Damages caused by latent defects Legal Service Offices may settle a of ordinary, commercial type, Govern- nonscope claim. ment equipment that were not payable § 750.67 Scope of liability. under the MCA, Foreign Claims Act, or FTCA are payable under this section. (a) Subject to the exceptions in (f) Nonscope claims for damages § 750.68 of specific claims not payable, caused by local national DON employ- the United States shall not pay more ees overseas are also payable under than $1,000.00 for a claim against the this section if the injury was caused by United States, not cognizable under the use of Government equipment. any other provision of law, except Arti- (g) Payment may not be made on a cle 139, UCMJ. nonscope claim unless the claimant ac- (b) Article 139, UCMJ, 10 U.S.C. 939, is cepts the amount offered in full satis- not preemptive. The prohibition in 10 faction of the claim and signs a settle- U.S.C. 2737 on paying claims ‘‘not cog- ment agreement. nizable under any other provisions of (h) Payment for nonscope claims ad- law’’ applies only to law authorizing judicated by field commands will be af- claims against the United States. Arti- fected through their local disbursing cle 139 authorizes claims against office by use of funds obtained from the servicemembers. See part 755 of this Judge Advocate General. chapter.
397
VerDate 25
§ 750.68 Claims not payable. 751.27 Preparation and dispatch of demand packets. (a) A claim for damage, loss, or de- 751.28 Assignment of claimants rights to struction of property or the personal the government. injury or death caused wholly or partly 751.29 Recoveries from carrier, contractor, by a negligent or wrongful act of the or insurer. claimant or his agent or employee. 751.30 Settlement procedures and third (b) A claim, or any part thereof, that party responses. is legally recoverable by the claimant 751.31 Common reasons for denial by carrier under an indemnifying law or indem- or contractor. nity contract. 751.32 Forwarding claims files for offset ac- (c) A subrogated claim. tion. 751.33 Unearned freight packet. § 750.69 Measure of damages. 751.34 GAO appeals. 751.35 Forms and instructions. Generally, the measure-of-damage provisions under the MCA are used to AUTHORITY: 5 U.S.C 301; 10 U.S.C. 939, 5013, determine the extent of recovery for and 5148; E.O. 11476, 3 CFR, 1969 Comp., p. 132; 32 CFR 700.206 and 700.1202. nonscope claims. Compensation is com- puted in accordance with §§ 750.47 and SOURCE: 57 FR 5055, Feb. 12, 1992, unless 750.48 of subpart C, except damages for otherwise noted. personal injury or death under this sec- tion shall not be for more than the cost Subpart A—Claims Against the of reasonable medical, hospital, and United States burial expenses actually incurred and not otherwise furnished or paid for by § 751.1 Scope of subpart A. the United States. Subpart A of this part prescribes pro- cedures and substantive bases for ad- PART 751—PERSONNEL CLAIMS ministrative settlement of claims REGULATIONS against the United States submitted by Department of the Navy (DON) person- Subpart A—Claims Against the United nel and civilian employees of the naval States establishment.
Sec. § 751.2 Claims against the United 751.1 Scope of subpart A. States: In general. 751.2 Claims against the United States: In general. (a) Maximum amount payable. The 751.3 Authority. Military and Civilian Employees’ Per- 751.4 Construction. sonnel Claims Act (Personnel Claims 751.5 Definitions. Act), 31 U.S.C. 3701, 3702, and 3721, pro- 751.6 Claims payable. vides that the maximum amount pay- 751.7 Claims not payable. able for any loss or damage arising 751.8 Adjudicating authorities. 751.9 Presentment of claim. from a single incident is limited to 751.10 Form of claim. $40,000.00. Claims for losses occurring 751.11 Investigation of claim. prior to 31 October 1988 are limited to 751.12 Computation of award. $25,000.00. 751.13 Payments and collections. (b) Additional instructions. The Judge 751.14 Partial payments. Advocate General of the Navy may 751.15 Reconsideration and appeal. issue additional instructions or guid- 751.16–751.20 [Reserved] ance as necessary to give full force and Subpart B—Demand on Carrier, effect to this section. Contractor, or Insurer (c) Preemption. The provisions of this section and the Personnel Claims Act 751.21 Scope of Subpart B. are preemptive of other claims regula- 751.22 Carrier recovery: In general. tions. Claims not allowable under the 751.23 Responsibilities. Personnel Claims Act may, however, be 751.24 Notice of loss or damage. 751.25 Types of shipments and liability in- allowable under another claims act. volved. (d) Other claims. Claims arising from 751.26 Demand on carrier, contractor, or in- the operation of a ship’s store, laundry, surer. dry cleaning facility, tailor shop, or
398
VerDate 25
cobbler shop should be processed in ac- and Marine Corps nonappropriated- cordance with NAVSUP P487. fund activities for loss, damage, or de- struction of personal property incident § 751.3 Authority. to their employment will be processed The Personnel Claims Act provides and adjudicated in accordance with the authority for maximum payment this enclosure and forwarded to the ap- up to $40,000.00 for loss, damage, or de- propriate local nonappropriated-fund struction of personal property of mili- activity which employs the claimant tary personnel or civilian employees for payment from nonappropriated- incident to their service. The Act pro- funds. vides for the recovery from carriers, (4) Separation from service. Separation warehouse firms, and other third par- from the service or termination of em- ties responsible for such loss, damage, ployment shall not bar former military or destruction. No claim may be paid personnel or civilian employees from unless it is presented in writing within filing claims or bar designated officers 2 years of the incident giving rise to from considering, ascertaining, adjust- the claim. ing, determining, and authorizing pay- ment of claims otherwise falling within § 751.4 Construction. the provision of these regulations when The provisions of this section and the such claim accrued prior to separation Personnel Claims Act provide limited or termination. compensation to service members and (b) Improper claimants. Insurers, as- civilian employees of the DON for loss signees, subrogees, vendors, and damage to personal property in- lienholders, contractors, subcontrac- curred incident to service. This limited tors and their employees, and other compensation is not a substitute for persons not specifically mentioned as private insurance. Although not every proper claimants. loss may be compensated under the (c) Unusual occurrence. Serious events Personnel Claims Act, its provisions and natural disasters not expected to shall be broadly construed to provide take place in the normal course of reasonable compensation on meritori- events. Two different types of incidents ous claims. Adjudications must be may be considered unusual occur- based on common sense and the rea- rences: those of an unusual nature and soned judgment of the claims examiner those of a common nature that occur giving the benefit of realistic doubt to to an unexpected degree of severity. the claimant. Examples of unusual occurrences in- clude structural defects in quarters, § 751.5 Definitions. faulty plumbing maintenance, termite (a) Proper claimants—(1) Members of or rodent damage, unusually large size the DON. All Navy and Marine Corps hail, and hazardous health conditions active duty members and reservists on due to Government use of toxic chemi- active duty for training under Federal cals. Examples of occurrences that are law whether commissioned, enrolled, not unusual include potholes or foreign appointed, or enlisted. A retired mem- objects in the road, ice and snow slid- ber may only claim under this Act if ing off a roof onto a vehicle, and tears, loss or damage occurred while the rips, snags, or stains on clothing. claimant was on active duty or in con- Claims that electrical or electronic de- nection with the claimant’s last move- vices were damaged by a power surge ment of personal property incident to may be paid when lightning has actu- service. ally struck the claimant’s residence or (2) Civilian employees of the Navy. Fed- objects outside the residence, such as a eral employees of the naval establish- transformer box, or when power com- ment paid from appropriated funds. pany records or similar evidence shows This term does not include Red Cross that a particular residence or group of employees, USO personnel, and em- residences was subjected to a power ployees of Government contractors (in- surge of unusual intensity. In areas cluding technical representatives). subject to frequent thunderstorms or (3) Claims by nonappropriated-fund em- power fluctuations, claimants are ex- ployees. Claims by employees of Navy pected to use surge suppressors, if
399
VerDate 25
available, to protect delicate items ant can substantiate that he was free such as computers or videocassette re- from negligence, he can file a claim for corders. damages to his household goods. (d) Personal property. Property includ- (5) Shipment or storage at the claim- ing but not limited to household goods, ant’s expense. The shipment or storage unaccompanied baggage, privately is considered Government-sponsored if owned vehicles (POV’s), mobile homes, the Government later reimburses the and boats. claimant for it. The Government, how- (e) Intangible property. Property that ever, will not compensate a claimant has no intrinsic marketable value such for loss or damage that occurs while as bankbooks, checks, promissory property is being shipped or stored at notes, non-negotiable stock certifi- the claimant’s expense, even if the cates, bonds, baggage checks, insur- Government reimburses the claimant ance policies, money orders, and trav- for the shipment or storage fees. The elers checks. reason for this is that there is no con- (f) Vehicles. Includes automobiles, tract, called a Government Bill of Lad- motorcycles, mopeds, utility trailers, ing (GBL), between Government and camping trailers, trucks, mounted the carrier. In such cases the claimant camper bodies, motor homes, boats, must claim against the carrier. boat trailers, bicycles, and aircraft. (b) Losses at assigned quarters or other Mobile homes and other property used authorized places. Damage or loss as dwelling places are not considered caused by fire, explosion, theft, vandal- vehicles. ism, lightning, flood, earthquake, and unusual occurrences. Losses due to § 751.6 Claims payable. theft may only be paid if the claimant Claims for loss, damage, or destruc- took reasonable measures to safeguard tion of property may be considered as the property and the theft occurred as set out below if possession of the prop- a result of a forced entry. Claimants erty was reasonable and useful under are expected to secure windows and the circumstances and the loss did not doors of their barracks, quarters, wall result from the negligence of the lockers, and other storage areas. claimant. Claimants are expected to store (a) Transportation and storage losses. valuables in a secure area within their (1) Incurred during transportation barracks, quarters, and storage areas. under orders, whether in possession of Claimants are also expected to take the Government, carrier, storage ware- extra measures to protect cash, valu- house, or other Government contrac- able jewelry, and similar small, easily tor. pilferable items. Normally, such items (2) Incurred during travel under or- should be kept in a locked container ders, including temporary duty. within a secured room. It is also advis- (3) Incurred during travel on a space able that the locked container be large available basis on a military aircraft, enough that it is not convenient for a vessel, or vehicle. thief to carry off. Bicycles located at (4) Do-it-yourself (DITY) moves. In cer- quarters or on base must be secured to tain circumstances, loss of or damage a fixed object. Overseas housing is con- to property during a DITY move is sidered assigned quarters for claimants compensable. Claimants, however, are who are not local inhabitants. required to substantiate the fact of loss (c) Vehicle losses. (1) Incurred while a or damage in shipment. Claimants who vehicle is used in the performance of do not prepare inventories have dif- military duty, if such use was author- ficulty substantiating thefts. In addi- ized or directed for the convenience of tion, unless evidence shows that some- the Government, provided the travel thing outside the claimant’s control did not include commuting to or from caused the damage, breakage is pre- the permanent place of duty, and did sumed to be the result of improper not arise from mechanical or struc- packing by the claimant. For example, tural defect of the vehicle. There is no if a claimant’s truck is rear-ended by a requirement that the loss be due to drunk driver during a DITY move, it is fire, flood, hurricane, or other unusual out of claimant’s control. If the claim- occurrence, or to theft or vandalism.
400
VerDate 25
As a general rule, however, travel is or the Department of Defense (DOD). A not considered to be for the conven- vehicle properly on the installation ience of the Government unless it was should be presumed to be used incident pursuant to written orders authorizing to the claimant’s service. A vehicle use for which the claimant is entitled that is not properly insured or reg- to reimbursement. The claimant must istered in accordance with local regula- be free from negligence in order to be tions is not properly on the installa- paid for a collision loss. Travel by the tion. A vehicle left in a remote area of claimant to other buildings on the in- the installation that is not a des- stallation is not considered to be under ignated long-term parking area for an orders for the convenience of the Gov- undue length of time is presumed not ernment. Travel off the installation to be on the installation incident to without written orders may only be service. deemed to be for the convenience of the (5) Theft of property stored inside a ve- Government if the claimant was ex- hicle. Claimants are expected to lock pressly directed by his superior to use doors and windows. Neither the pas- POV to accomplish the mission. The senger compartment nor the trunk of a issuance of written orders after the vehicle is a proper place for the long- fact raises the presumption that travel term storage of property unconnected was not for the convenience of the Gov- with the use of the vehicle. The pas- ernment. The maximum payment of senger compartment of a vehicle does $2,000.00 authorized by the Allowance not provide adequate security, except List-Depreciation Guide still applies to for very short periods of time for arti- loss of or damage to vehicles and con- cles that are not of high value or easily tents. This maximum does not apply to pilferable. Car covers and bras are pay- DITY moves. able if bolted or secured to the vehicle (2) Incurred while a vehicle is shipped with a wire locking device. at Government expense, provided the (6) Rental vehicles. Damage to rental loss or damage did not arise from me- vehicles is considered under paragraphs chanical or structural defect of the ve- of the Joint Federal Travel Regula- hicle during such shipment. Damage tions (JFTR), rather than as a loss in- caused during shipment at the claim- cident to service. ant’s expense or while the vehicle is (d) Mobile homes and contents in ship- being moved to or from the port by an ment. Claims for damage to mobile agent of the claimant is not compen- homes and contents in shipment are sable. payable unless the damage was caused (3) Incurred while a vehicle is located by structural or mechanical defects at quarters or other authorized place of (see § 751.12(g) below on mobile homes). lodging, including garages, carports, (e) Borrowed property (including vehi- driveways, assigned parking spaces, if cles). Loss or damage to borrowed prop- the loss or damage is caused by fire, erty is compensable if it was borrowed flood, hurricane, theft, or vandalism, for claimant’s or dependent’s own use. or other unusual occurrence. Vandal- A statement will be provided by the ism is damage intentionally caused. owner of the property attesting to the Stray marks caused by children play- use of the property by the claimant. ing, falling branches, gravel thrown by (f) Clothing and articles being worn. other vehicles, or similar occurrences Repairs/replacement of clothing and are not vandalism. The amount pay- articles being worn while on a military able on vandalism claims is limited to installation or in the performance of $2,000.00. official duty may be paid if loss is (4) Incurred while a vehicle is located caused by fire, flood, hurricane, theft, at places other than quarters but on a or vandalism, or other unusual occur- military installation, if the loss or rence. This paragraph shall be broadly damage is caused by fire, flood, hurri- construed in favor of compensation, cane, theft, or vandalism, or other un- but see § 751.5(c) for the definition of usual occurrence. ‘‘Military installa- unusual occurrence. Articles being tion’’ is used broadly to describe any worn include hearing aids, eyeglasses, fixed land area, wherever situated, con- and items the claimant is carrying, trolled, and used by military activities such as a briefcase.
401
VerDate 25
(g) Personal property held as evidence tificates, marriage certificates, college or confiscated property. If property be- diplomas, passports, or similar docu- longing to the victim of a crime is to ments may be allowed if the original or be held as evidence for an extended pe- a certified copy is lost or destroyed in- riod of time (in excess of 2 months) and cident to service. In general, com- the temporary loss of the property will pensation will only be allowed for re- work a grave hardship on the claimant, placing documents with a raised seal a claim for the loss may be considered that are official in nature. No com- for payment. This provision will not be pensation will be allowed for docu- used unless every effort has been made ments that are representative of value, to determine whether secondary evi- such as stock certificates, or for per- dence, such as photographs, may be sonal letters or records. substituted for the item. No compensa- (2) Estimate fees. An estimate fee is a tion is allowed to a person suspected of fixed cost charged by a person in the an offense for property seized from that business of repairing property to pro- same person in the investigation of vide an estimate of what it would cost that offense. This also applies to prop- to repair property. An estimate fee in erty a foreign government unjustly excess of $50.00 should be examined confiscates or an unjust change in a with great care to determine whether foreign law that forces surrender or it is reasonable. A person becomes obli- abandonment of property. gated to pay an estimate fee when the (h) Theft from possession of claimant. estimate is prepared. An estimate fee Theft from the person of the claimant should not be confused with an ap- is reimbursable if the theft occurred by praisal fee, which is not compensable use of force, violence, or threat to do (see § 751.7). A reasonable estimate fee bodily harm, or by snatching or is compensable if it is not going to be pickpocketing, and at the time of theft credited toward the cost of repair. If it the claimant was either on a military is to be credited toward the cost of re- installation, utilizing a recreation fa- pair, it is not compensable regardless cility operated or sponsored by the De- of whether the claimant chooses to partment of Defense or any agency have the work done. When an estimate thereof, or in the performance of offi- fee is claimed, the file must reflect cial duty. The theft must have been re- whether the fee is to be credited. ported to appropriate police authori- ties as soon as practicable, and it must § 751.7 Claims not payable. have been reasonable for the claimant to have had on his person the quality (a) Losses in unassigned quarters in the and the quantity of the property alleg- United States. Claims for property dam- edly stolen. aged or lost at quarters occupied by (i) Property used for the benefit of the the claimant within the United States Government. Compensation is author- that are not assigned or otherwise pro- ized where property is damaged or lost vided by the Government. while being used in the performance of (b) Currency or jewelry shipped or Government business at the direction stored in baggage. Claims for lost or request of superior authority or by money, currency, or jewelry shipped or reason of military necessity. stored in baggage are not payable. Coin (j) Money deposited for safekeeping, or paper money included in collections transmittal, or other authorized disposi- is payable only if listed on an inven- tion. Compensation is authorized for tory prepared at origin. personal funds delivered to and accept- (c) Enemy property or war trophies. ed by military and civilian personnel This includes only property that was authorized by the commanding officer originally enemy property or a war tro- to receive these funds for safekeeping, phy that passed into the hands of a col- deposit, transmittal, or other author- lector and was then purchased by a ized disposition, if the funds were nei- claimant. ther applied as directed by the owner (d) Unserviceable or Worn-Out Prop- nor returned to the owner. erty. (k) Fees—(1) For obtaining certain doc- (e) Loss or Damage to Property to uments. The fees for replacing birth cer- the Extent of any Available Insurance
402
VerDate 25
Coverage as Set Forth in § 751.26 of this property shipped to accommodate an- part. other person, as well as property used (f) Inconvenience or loss of use. Ex- to transport contraband. penses arising from late delivery of (1) Sales tax. Sales taxes associated personal property, including but not with repair or replacement costs will limited to the expenses for food, lodg- not be considered unless the claimant ing, and furniture rental, loss of use, provides proof that the sales tax was interest, carrying charges, attorney’s actually paid. fees, telephone calls, additional costs (m) Appraisal fees. An appraisal, as of transporting claimant or family distinguished from an estimate of re- members, time spent in preparation of placement or repair, is defined as a claim, or cost of insurance are not compensable. While such claims do not valuation of an item provided by a per- lie against the Government, members son who is not in the business of selling should be referred to the Personal or repairing that type of property. Nor- Property Office for assistance in filing mally, claimants are expected to ob- their inconvenience claims against the tain appraisals on expensive items at commercial carriers (NAVSUP Publi- their own expense. cation 490, Transportation of Personal (n) Quantities of property not reason- Property). able or useful under the circumstances are (g) Items of speculative value. Theses, not compensable. Factors to be consid- manuscripts, unsold paintings, or a ered are claimant’s living conditions, similar creative or artistic work done family size, social obligations, and any by the claimant, friend, or a relative is particular need to have more than av- limited to the cost of materials only. erage quantities, as well as the actual The value of such items is speculative. circumstances surrounding the acquisi- Compensation for a utilitarian object tion and loss. made by the claimant, such as a quilt (o) Intangible Property, such as or bookcase, is limited to the value of Bankbooks, Checks, Promissory Notes, an item of similar quality. Stock Certificates, Bonds, Bills of Lad- (h) Loss or damage to property due to ing, Warehouse Receipts, Baggage negligence of the claimant. Negligence is Checks, Insurance Policies, Money Or- a failure to exercise the degree of care ders, and Traveler’s Checks are not expected under the circumstances that is the proximate cause of the loss. Compensable. Losses due, in whole or in part, to the (p) Property Owned by the United negligence of the claimant, the claim- States, Except where the Claimant is ant’s spouse, child, houseguest, em- Responsible to an Agency of the Gov- ployee, or agent are not compensable. ernment other than the DON. (i) Business property. Losses of items (q) Contractual coverage. Losses, or acquired for resale or use in a private any portion thereof, that have been re- business are not compensable. If prop- covered or are recoverable pursuant to erty is acquired for both business and contract are not compensable. personal use, compensation will not be allowed if business use is substantial, § 751.8 Adjudicating authorities. or is the primary purpose for which the (a) Claims by Navy personnel. (1) The item was purchased, or if the item is following are authorized to adjudicate designed for professional use and is not and authorize payment of personnel normally intended for personal use. claims up to $40,000.00: (j) Motor vehicles. Collision damage is (1) The Judge Advocate General; not payable unless it meets the criteria for payment as property used for the (ii) Deputy Judge Advocate General; benefit of the Government as estab- (iii) Any Assistant Judge Advocate lished in § 751.6(c)(1). General; (k) Violation of law or directives. Prop- (iv) The Deputy Assistant Judge Ad- erty acquired, possessed, or trans- vocate General (Claims and Tort Liti- ported unlawfully or in violation of gation); and competent regulations or directives. (v) Commanding officers of Naval This includes vehicles, weapons, or Legal Service Offices.
403
VerDate 25
(2) The Staff Judge Advocate at- sonal property office serving the instal- tached to Naval Supply Center, Oak- lation where the claimant is stationed, land is authorized to adjudicate and or nearest to the point where the loss pay claims up to $25,000.00. or damage occurred. If submission in (3) The Staff Judge Advocate at- accordance with the foregoing is im- tached to Naval Station, Panama practical under the circumstances, the Canal is authorized to adjudicate and claim may be submitted in writing to pay claims up to $10,000.00. any installation or establishment of (4) The following are authorized to the Armed Forces which will forward adjudicate and authorize payment of the claim to the appropriate Navy or personnel claims up to $5,000.00: Marine Corps claims office for process- (i) Officers in charge of Naval Legal ing. To constitute a filing under this Service Office Detachments; regulation, a claim must be presented (ii) The Staff Judge Advocate at- in writing to one of the military de- tached to Naval Station, Keflavik; and partments. Claims that are incomplete (iii) Any personnel attached to a will not be refused and shall be logged Naval Legal Service Office when spe- in as received. Claimants submitting cifically designated by the command- such claims, however, shall be in- ing officer of that Naval Legal Service formed in writing that properly com- Office. pleted forms or necessary substan- (5) Any individual, when personally tiation must be received within a fixed designated by the Judge Advocate Gen- period of time (normally 30 days), oth- eral, may be authorized to adjudicate erwise the claim will be denied or paid and authorize payment of personnel only in the amount substantiated. claims up to any delegated amount, (b) Statute of limitations. A claim must not to exceed $40,000.00. be presented in writing to a military (b) Claims by Marine Corps personnel. installation within 2 years after it ac- (1) The following individuals are au- crues. This requirement is statutory thorized to adjudicate and authorize and may only be waived if a claim ac- payment of personnel claims up to crues during armed conflict, or armed $40,000.00: conflict intervenes before the 2 years (i) Commandant of the Marine Corps; have run, and good cause is shown. In (ii) Deputy Chief of Staff, Manpower this situation, a claim may be pre- and Reserve Affairs Department; sented not later than 2 years after the (iii) Director, Human Resources Divi- end of the armed conflict. A claim ac- sion; crues on the day the claimant knows or (iv) Head, Personal Affairs Branch; should know of the loss. For losses that (v) Deputy Head, Personal Affairs occur in shipment of personal property, Branch; normally the day of delivery or the day (vi) Head, Personnel Claims Section; the claimant loses entitlement to stor- and age at Government expense (whichever (vii) Any individual, when personally occurs first) is the day the claim ac- designated by the Commandant of the crues. If a claimant’s entitlement to Marine Corps, may be authorized to ad- Government storage terminates, but judicate and authorize payment of per- the property is later delivered at Gov- sonnel claims up to any delegated ernment expense, the claim accrues on amount, and not to exceed $40,000.00. delivery. In computing the 2 years, ex- (2) The following individuals are au- clude the first day (day of delivery or thorized to adjudicate and authorize incident) and include the last day. If payment of personnel claims up to the last day falls on a non-workday, ex- $25,000.00: tend the 2 years to the next workday. (i) Head, Adjudication Unit; (c) Substantiation. The claimant is re- (ii) Head, Carrier Recovery Unit; and sponsible for substantiating ownership (iii) Head, Administration Unit. or possession, the fact of loss or dam- age, and the value of property. Claim- § 751.9 Presentment of claim. ants are expected to report losses (a) General. A claim shall be submit- promptly. The greater the delay in re- ted in writing and, if practicable, be porting a loss, the more substantiation presented to the claims office or per- the claimant is expected to provide.
404
VerDate 25
(1) Obviously damaged or missing inven- ined to determine whether the material tory items that are not reported at deliv- is solid hardwood, fine quality veneer ery. Claimants are expected to list over hardwood, veneer over pressed missing inventory items and obvious wood, or other types of material. If the damage at time of delivery. Claimants inspection is conducted at the claim- who do not should be questioned. Obvi- ant’s quarters, the general quality of ously some claimants will simply not property should be determined. Claim- notice readily apparent damage. If, ants should routinely be directed to however, the claimant cannot provide bring in vehicles and small broken an explanation or lacks credibility, items of value such as figurines for in- payment should be denied based on spection, and inspections should be lack of evidence that the item was lost conducted on all large claims. Observa- or damaged in shipment. tions by repairmen and transportation (2) Later-discovered shipment loss or inspectors are very valuable, but on oc- damage. A claimant has 70 days to un- casion, claims personnel must go out of pack, discover, and report loss and the office and inspect items them- damage that is not obvious at delivery. selves. Such inspections are necessary In most cases, loss and damage that is to reduce the number of reconsider- discovered later and reported in a ations and fraudulent claims and are timely manner should be deemed to invaluable in enabling claims person- have been incurred in shipment. nel to understand the facts in many (3) Damage to POV’s in shipment. Per- situations. sons shipping POV’s are expected to list damage on DD Form 788 (Private § 751.10 Form of claim. Vehicle Shipping Document for Auto- mobile) when they pick up the vehicle. The claim should be submitted on DD Obvious external damage that is not Form 1842 (Claim for Personal Prop- listed is not payable. Damage the erty) accompanied by DD Form 1844 claimant could reasonably be expected (List of Property). If DD Forms 1842 not to notice at the pickup point and 1844 1 are not available, any writing should be considered if the claimant re- will be accepted and considered if it as- ports the damage to claims personnel serts a demand for a specific sum and within a short time, normally a few substantially describes the facts nec- days, after arriving at the installation. essary to support a claim cognizable (4) Credibility. Most claimants are under these regulations. The claim honest. Most claimants objectively at- must be signed by a proper claimant tempt to claim only what is due them. (see § 751.5) or by a person with a power These persons are entitled to the pre- of attorney for a proper claimant. A sumption that what they list is honest, copy of the power of attorney must be although it may not be correct. Some included with the claim. claimants lack credibility and their claims require careful scrutiny. Fac- § 751.11 Investigation of claim. tors that indicate a claimant’s credi- Upon receipt of a claim filed under bility is questionable include amounts the Personnel Claims Act, the claim claimed that are exaggerated in com- shall be stamped with the date and re- parison with the cost of similar items, ceiving office, and be referred to a insignificant or almost undetectable claims investigating officer. The inves- damage, very recent purchase dates for tigating officer shall consider all infor- most items claimed, and statements mation and evidence submitted with that appear incredible. Such claimants the claim and shall conduct such fur- should be required to provide more evi- ther investigation as may be necessary dence than is normally expected. and appropriate. (5) Inspections. Whenever a question arises about damage to property, the 1 best way to determine a proper award Copies of these forms may be obtained by contacting the claims office or personal is to examine the item closely to deter- property office serving the installation mine that nature of the damage. For where the claimant is stationed, or nearest furniture, undersurfaces and the edges to the point where the loss or damage oc- of drawers and doors should be exam- curred.
405
VerDate 25
§ 751.12 Computation of award. item, and the nature of the damage, The Judge Advocate General will pe- and claims personnel should exercise riodically publish an Allowance List- sound judgment to avoid being too le- Depreciation Guide specifying rates of nient or too harsh. depreciation and maximum payments (iii) Cosmetic damage to nondecorative applicable to categories of property. items. LOV should also be awarded to The Allowance List-Depreciation Guide compensate claimants for cosmetic will be binding on all DON claims per- damage to items that were not pur- sonnel. The value of the loss is deter- chased for purposes of display or deco- mined and adjusted to reflect pay- ration. For example, the casing of a ments, repairs, or replacement by car- washing machine is dented. The wash- riers or insurers, or lost potential in- ing machine is not decorative in nature surance or carrier recoveries. and still functions perfectly. An LOV, (a) Repair of items. For items that can rather than replacement of the wash- be economically repaired, the cost of ing machine or the casing, is the appro- repair or an appropriate loss in value is priate measure of the claimant’s loss. the measure of the loss. The cost of re- (2) PED to repairable items. PED is pair may be the actual cost, as dem- damage to an item that predates the onstrated by a paid bill, or reasonable incident giving rise to a claim. PED is estimated costs, as demonstrated by an most commonly identified by the use estimate of repair prepared by a person of symbols on household goods ship- in the business of repairing that type ment inventories. Whenever PED is of property. listed on an inventory, claims person- (1) Loss of value (LOV)—(i) Minor dam- nel must determine whether the PED age not worth repairing. An LOV, rather did in fact exist and whether the cost than replacement cost, should be of repairing the item includes repairing awarded when an item suffers minor PED. The fact that a claimant signed damage that is not economical to re- the inventory that listed PED is con- pair but the item remains useful for its clusive evidence that PED did exist un- intended purpose. An LOV is particu- less the member has taken written ex- larly appropriate when the item is not ceptions on the inventory to the car- of great value and has preexisting dam- rier’s description of PED. These find- age (PED). An LOV is also appropriate ings are essential for recovery pur- to compensate claimants for minor poses. Often inspecting the item or damage, such as a chip or surface crack calling the repairman who prepared the to a figure or knickknack. For exam- estimate is the only way to make an ple, if an inexpensive, fiberboard coffee effective determination. table with extensive PED is scratched, repair of the scratch would exceed the (i) Estimates that do not include repair value of the table. Under the cir- of PED. If the estimate does not in- cumstances, LOV is appropriate. clude repair of PED, even if PED is (ii) Damage to upholstered furniture. If listed on the inventory, no deduction damage can be repaired imperceptibly should be made. This fact should be re- by cleaning or reweaving, the claimant corded on the chronology sheet and on is only entitled to repair cost. If re- carrier recovery documents. pairs would be somewhat noticeable (ii) Estimates that include repair of but the damage is to an area not nor- PED. If repair of PED is included in the mally seen, repair costs plus an LOV estimate, the percentage attributable would be appropriate. Alternatively, if to repair of PED is deducted. repairs would be somewhat noticeable (3) Mechanical defects. The Personnel but the item is of no great value and Claims Act only provides compensation has already suffered PED, repair costs for losses incurred incident to service. and LOV would be appropriate even if Damage resulting from a manufactur- the damage is in an obvious area. If, er’s defect or from normal wear and however, repairs would be so noticeable tear is not compensable. Damage to the as to destroy the usefulness of the engine or transmission of an old vehi- item, the item should be reupholstered cle during shipment is probably due to or replaced. What is noticeable will de- a mechanical defect. Internal damage pend on the nature and value of the to appliances, such as old televisions,
406
VerDate 25
is also often due to a mechanical de- (1) Similar used items. If there is a reg- fect, particularly when their is no ex- ular market for used items of that par- ternal damage to the item. Claims for ticular type, the loss may be measured internal damage to small appliances by the cost of a similar item of similar that are not normally repaired, such as age. Prices obtained from industry toasters or hair dryers, should be as- guides or estimates from dealers in this sessed based on damage to other items type of property are acceptable to es- in the carton and the shipment, the age tablish value. There is a regular mar- of the item, the honesty of the claim- ket on used cars and the value of a ant, and whether there are loose parts used automobile is always measured inside. If the evidence suggests rough according to the N.A.D.A. Official Car handling caused the damage, a claim Guide rather than the depreciated re- for the item should be paid. Internal placement cost. Similarly, the Mobile damage to larger items such as tele- Home Manufactured Housing Replace- visions or stereos should be evaluated ment Guide may be used to value a de- by a repairman. Evidence that suggests stroyed mobile home. Where there is no rough handling, such as smashed regular market in a particular type of boards, provides a basis for payment. used item, however, estimates from Evidence that suggests a fault in the dealers in ‘‘collector’s items’’ should be item, such as burned-out circuits, does avoided. not. Deterioration because an item in (2) Depreciated replacement cost. This storage was not used for a long time, is the normal measure of a claimant’s rather than because the item was mis- loss. A catalog or store price for a new handled or the conditions of storage item similar in size and quality is de- were improper, is also considered due preciated using the Allowance List-De- to a mechanical defect. preciation Guide to reflect wear and (4) Wrinkled clothing. Clothing wrin- tear on the missing or destroyed item. kled in shipment presents special prob- The replacement cost for identical lems. Normally, unless the wrinkling is items—particularly decorative items— so severe as to amount to actual dam- should be used whenever the item is age, the cost to press wrinkles out of readily available in the local area, but clothing after a move is not compen- a claimant who is eligible to use the sable. The mere fact that clothing was Navy Exchange (NEX) and the NEX ‘‘wadded up’’ or ‘‘used as packing mate- Mail Order Catalog should not be al- rial’’ is not in itself sufficient. The lowed a higher replacement cost of an wrinkling must be such that profes- item, such as a television, from a spe- sional pressing is necessary to make cialty store when the NEX carries an the clothing usable. This determina- item comparable in size, quality, and tion will depend on the wrinkling and features from another manufacturer. the nature of the material. (3) ‘‘Fair and reasonable’’ (F&R) (5) Wet and mildewed items. A claim- awards. A fair and reasonable award ant has a duty to mitigate damages by should be used sparingly when other drying wet items to prevent further de- measures would compensate the claim- terioration. Items that have been wet ant appropriately. Overuse of such are not necessarily damaged and claim- awards impedes carrier recovery and ants who throw them away have dif- ‘‘F&R’’ should never be used when a ficulty substantiating that a loss has more precise measure of damages is occurred. Although a deeply seated available. An F&R award for a missing mildew infestation is almost impos- or destroyed item should reflect the sible to remove completely, items value of an item similar in quality, de- lightly infested can often be cleaned. scription, age, condition, and function (b) Replacement of items. A claimant is to the greatest extent possible. An entitled to the value of missing and de- F&R award for a damaged item should stroyed items. An item that has sus- reflect either the amount a firm would tained damage is considered destroyed charge for repair or the reduced value if it is no longer useful for its intended to the greatest extent possible. When- purpose and the cost of repairing it ex- ever such an award is made, the basis ceeds its value. Value is measured in for the award should be explained on the following ways: the chronology sheet, in the comments
407
VerDate 25
block of DD Form 1844 (List of Prop- useful life of upholstered furniture. erty), or in a separate memorandum. A When upholstered furniture is reuphol- fair and reasonable award may be con- stered because the damage is too severe sidered in the following instances: to be repaired and an LOV is not appro- (i) The item is obsolete and a simple priate, the cost of new fabric is depre- deduction of a percentage for obsoles- ciated at a rate of 5 percent per year. If cence is not appropriate. the item has been reupholstered since (ii) The claimant cannot replace the it was purchased, depreciation is meas- item in the local area. ured from the date the item was last (iii) The claimant cannot replace the reupholstered, rather than from the item at any cost. date the item was originally purchased. (iv) Repair costs or replacement costs Labor costs are allowed as claimed. If are excessive for the item and an LOV the estimate does not list separate is not appropriate. costs for fabric and labor, the labor (v) The claimant has substantiated a costs may be assumed to be 50 percent loss in some amount but has failed to of the total bill. substantiate a loss in the amount (3) Rapidly depreciating items. Tires, claimed. most clothing items, and most toys (c) Depreciation. The Personnel rapidly lose their value, as the high de- Claims Act is only intended to com- preciation rate for these items reflects. pensate claimants for the fair market Depreciation should be taken on such value of their loss. Except in unusual items even when they are less than 6 cases, a used item that has been lost or months old. As a rule of thumb, half of destroyed is worth less than a new the normal yearly or flat rate deprecia- item of the same type. The price of a tion should be taken on such items new replacement item must be depre- when they are between 3 and 6 months ciated to award the claimant the value old at the time of loss. of the lost or destroyed item. Average (4) Obsolescence. Even though depre- yearly and flat rates of depreciation ciation is not taken during periods of have been established to determine the storage, obsolescence should be fair value of used property in various claimed on those items that have lost categories. These rates are listed in the value because of changes in style or Allowance-List Depreciation Guide. technological innovations. The listed depreciation rate should be (5) Military uniforms. Normally, no de- adjusted if an item has been subjected preciation should be taken on military to greater or lesser wear and tear than uniforms. Depreciation, however, normal or if the replacement cost the should be taken on military uniform claimant provides is for a used item items that are being phased out or that rather than a new one. Yearly depre- belong to persons separating from the ciation is not taken during periods of service. Socks and underwear are not storage and normally no depreciation considered military uniform items. is taken on repair costs or on replace- (d) Salvage value. Whenever a claim- ment cost for items less than 6 months ant has been fully compensated for a old, excluding the month of purchase destroyed item that still has some and the month the claim accrued (but value, the claimant has the option of see § 751.12(c)(3)). either retaining the item and having (1) Depreciating replacement parts. No the claims office deduct an amount for depreciation should be taken on re- the salvage value, or turning the item placement parts for damaged items un- over to the Government or to the car- less these are parts separately pur- rier if the carrier will fully reimburse chased or normally replaced during the the Government. useful life of these items. The replace- (1) Turn-in to the Government. On all ment cost for these latter items should claims, except CONUS domestic ship- be depreciated. For example, the glass ments, if the claimant does not choose top to a table is not normally replaced to retain the items and accepts a re- during the useful life of the table and duction in the amount paid on the should not be depreciated. claim for salvage value, the claims of- (2) Depreciating fabric for reupholstery. fice will require the claimant to turn Fabric is normally replaced during the them into a disposal unit designated by
408
VerDate 25
the Personal Property Office. Nor- end of the period allotted for carrier mally, the amount that the Govern- pick-up. ment may obtain from selling such (3) Maximum allowances. If the claim- items is very low. If the claims office ant will not be fully compensated for determines that the salvage value is an item because a maximum allowance less than $25.00, the claimant may be is applied, he will not be required to advised to dispose of the items by other turn in the item. means, either by throwing the item (e) Standard abbreviations. The claims away or by turning it over to a chari- examiner’s intent should be clear and table organization. Claimants may also unmistakable to anyone reviewing the be directed to make alternative dis- remarks section of DD Form 1844. The position of items that have been re- following standardized abbreviations fused by the designated disposal unit. are used in completing the remarks This alternate disposition must be section. Other abbreviations should not noted on the chronology sheet that is be used. Whenever one or more of these kept as part of the claims file. Claims abbreviations will not adequately ex- personnel will not divert such items to plain how the claimant has been com- personal use or use them to furnish pensated, a brief explanation should be Government offices. In determining inserted in the remarks section, in the whether an item has salvage value, the comments section on the bottom of DD size of the item and the distance the Form 1844, or on the chronology sheet claimant must travel to turn it in that is kept in each claims file. should be considered. A claimant must (1) AC: Amount claimed. The amount make his own arrangements to trans- claimed was awarded to the claimant. port salvageable items prior to pay- This abbreviation is not used if the ment. Claims personnel should ask the claimant has presented an estimate of claimant’s command to make transpor- repair. tation available to assist the claimant in appropriate cases, particularly when (2) AGC: Agreed cost of repairs. The the item is large or bulky. Sound dis- claimant did not present an estimate cretion prohibits requiring a claimant but instead, after discussing the mat- living far from a designated disposal ter with claims personnel, entered an unit to turn in an item of relatively amount that represents the claimant’s slight value. guess as to how much it would cost to (2) Turn-in to the carrier. On CONUS repair the damaged item. The claims domestic shipments, the carrier may office may accept this amount as a fair choose to pick up items for which it estimation of the cost of repair based will fully reimburse the Government. on the amount of damage, the value of Pursuant to a Joint Military-Industry the item, and the cost of similar re- Memorandum on Salvage, items that pairs in the area. A claimant may be are hazardous to keep around, such as allowed up to $50.00 as an AGC without mildewed items or broken glass (except an inspection and between $50.00 and items such as figurines and crystal $100.00 if claims personnel have in- with a per item value of more than spected the item. The use of AGC is an $50.00), may be disposed of as the claim- integral part of small claims proce- ant chooses. Claimants must retain dures. other items for a maximum of 120 days (3) CR: Carrier recovery. The claimant from the date of delivery to allow the was paid this amount by the carrier for carrier to pick them up. Pursuant to the item. The payment is recorded in this memorandum of understanding, the remarks column, and the total car- the carrier has until the end of the in- rier payment is deducted at the bottom spection period or 30 days after receipt of DD Form 1844 in the same manner as of the demand, whichever is greater, to insurance recovery. identify such items. Claims offices (4) D: Depreciation. Yearly deprecia- must identify files in which the carrier tion was taken on the destroyed or is entitled to salvage and must process missing item in accordance with the these claims for recovery action within appropriate depreciation guide in effect 30 days so that the claimant does not at the time of the loss. Deviations from dispose of salvageable items before the standard rates must be explained.
409
VerDate 25
(5) DV: Depreciated value. A claim- (17) NEX: Navy Exchange replacement ant’s repair costs exceeded the value of cost. A replacement from the NEX was the item, so the depreciated value was used. awarded instead. Whenever a claimant (18) RC: Replacement cost. A replace- claims a repair cost that is very high, ment cost was used. The store or cata- relative to the age and probable re- log from which the replacement cost placement cost, the replacement cost was taken should be listed. should be obtained and the depreciated (19) SV/N: Item has no salvage value. A value determined. destroyed item was determined to have (6) ER: Estimate of repair. The claim- no salvage value. ant provided an estimate of repair that (20) SV/R: Salvage value, item retained. was used to value the loss. If multiple A destroyed item was determined to estimates were provided, they should have salvage value and the claimant be numbered and referred to as exhib- chose to keep the item. Accordingly, a its. deduction was made for the salvage (7) EX: Exhibit. When numerous docu- value. ments have been provided to substan- (21) SV/T: Salvage value, item turned in. tiate a claim, they should be numbered A destroyed item was determined to and referred to as exhibits. have salvage value and the claimant (8) FR: Flat rate depreciation. Flat chose not to keep the item. If the item rate depreciation was taken on an item is part of a CONUS domestic shipment, in accordance with the Depreciation the claimant must keep it for the car- Guide in effect at the time of the loss. rier to pick up. Otherwise, the claim- Deviations from the normal rate must ant must turn the item in prior to pay- be explained. ment on the claim. (9) F&R: Fair and reasonable. A fair (f) Sets. Normally, when component and reasonable award was made (see parts of a set are missing or destroyed, § 751.12(b)(3)). the claimant is only entitled to the re- placement cost of the missing or de- (10) LOV: Loss of value. An LOV was stroyed components. In some in- awarded (see § 751.5(a)(1)). stances, however, a claimant would be (11) The ad- MA: Maximum allowance. entitled to replacement of the entire judicated value, listed in the ‘‘Amount set or to an additional LOV. Some Allowed’’ column, exceeds a maximum claimants will assert that all of the allowance. The amount in excess of the items in a room are part of a set. maximum allowance is subtracted at Pieces sold separately, however, are or- the bottom of the DD Form 1844. dinarily not considered parts of a set, (12) N/P: Not payable. The item is not and pieces that merely complement payable. The reason for this comment other items, such as a loveseat pur- should be noted (i.e., ‘‘not substan- chased to complement a particular tiated’’). hutch, are never considered part of a (13) OBS: Obsolescence. A percentage set. When a component part of a set is was deducted for obsolescence. missing or destroyed and cannot be re- (14) PCR: Lost potential carrier recov- placed with a matching item, or has to ery. A deduction was made for lost be repaired so that it no longer PCR. matches other component parts of the (15) PED: Preexisting damage. A deduc- set, the following rules apply: tion was made for PED. (1) The set is no longer useful for its in- (16) PP: Purchase price. The purchase tended purpose. When a set is no longer price was used to value the loss. Nor- useful for its intended purpose because mally, the purchase price is not an ade- component parts are missing or de- quate measure of the claimant’s loss. stroyed the entire set may be replaced. If, however, the claimant used the re- Note that several firms will match dis- placement cost of a dissimilar item or continued sets of china and crystal and otherwise failed to substantiate the re- that replacement of the set is not au- placement cost, a recent purchase price thorized if replacement items can be may be used at the discretion of claims thus obtained. Generally, with china personnel, if a true replacement cost is and crystal the value of the set as a not available. whole is not destroyed unless more
410
VerDate 25
than 25 percent of the place settings ize shipment of a mobile home that has are unusable. Exceptions may be made not been placed in a fit condition to be if the claimant can demonstrate a par- shipped. ticular need for a certain number of (1) Transportation counseling prior to place settings because of family size or shipment. Servicemembers should be social obligations. In those rare in- advised of the following: stances when an entire set is replaced, (i) They are responsible for placing the claimant will be required to turn in the mobile home and its tires, tubes, undamaged pieces. frames, and other parts in fit condition (2) The set is still useful for its intended to ship and for loading the mobile purpose. When missing pieces cannot be home to withstand the stresses of nor- matched and there is measurable de- mal transportation. They will not be crease in the value of the set, but the compensated for any damage that re- set is still useful for its intended pur- sults either from a latent defect in the pose, the claimant is awarded the value construction of the mobile home (ex- of the missing pieces plus an amount cept when the carrier is aware of the for the diminution in value of the set defect and the servicemember is not) or as a whole. The amount awarded as an from their failure to place the mobile LOV will vary depending on the exact home in fit condition to ship. circumstances. (ii) They are responsible for paying (3) Mattresses and upholstered furniture for necessary repairs en route. Such re- are recovered. A mattress and box pairs can amount to several hundred or spring set is covered during normal even several thousand dollars, and use. Such sets are still useful for their some mobile homes have been left in intended purpose if one piece of the set storage at the servicemember’s expense has to be recovered in a different fab- hundreds of miles from destination be- ric. No award will be made for the cause the owner could not pay for nec- undamaged piece. When one piece of a essary repairs. set of upholstered furniture suffers damage that cannot be repaired or re- (iii) They are responsible for reseal- covered in matching fabric, recovering ing the roof and weatherproofing the the entire set or recovering the dam- mobile home after delivery. The cost of aged piece plus LOV should be consid- this is not compensable, nor is any ered. Factors to take into account in- damage caused by the servicemember’s clude the value of the set, PED to the failure to have it done. set, the nature of the current damage, (iv) They are responsible for remov- and the extent to which the claimant’s ing obstructions, grading the roadway, furniture is already mismatched. or otherwise preparing the site to (g) Mobile homes. Mobile homes make it accessible for the carrier’s present special problems. Most mobile equipment at both origin and destina- homes, particularly larger ones, are tion. not built to withstand the stress of (v) Because of the risk that damage multiple long moves. While the Mobile will result for which they cannot be Home One-Time Only rate solicitation compensated, servicemembers should program, effective 1 November 1987, strongly consider purchasing private may have reduced the incidence of loss insurance coverage. A claimant usually and damage by encouraging carriers to must purchase separate insurance for use extra axles when necessary, mobile property shipped inside the mobile home shipments can result in enor- home and most mobile home carriers mous, uncompensated losses for will sell some sort of insurance cov- servicemembers and present unusual erage for damage to the mobile home difficulties for claims adjudicators. Be- itself. Often, when a mobile home has cause the risk is so great, claims of- been moved repeatedly, the risk of un- fices must coordinate with their servic- compensated loss is so high that the ing transportation offices to ensure servicemember should consider selling both that servicemembers shipping mo- the home rather than attempting to bile homes are advised of the risk and ship it. of their responsibilities, and that the (2) Inspection Prior to Shipment. Trans- transportation office does not author- portation personnel should inspect the
411
VerDate 25
home prior to shipment in all in- home should be inspected and the fol- stances. All defects should be recorded. lowing evidence obtained, if possible: In particular: (i) DD Form 1800 (Mobile Home Ship- (i) A mobile home should not be ment Inspection at Destination). This shipped with a servicemember’s fur- document shows the condition of the niture and other household goods in- home at origin prior to shipment. This side. The maximum safe weight of ap- document is prepared by the Transpor- pliances and additional property is tation Office (TO) and is signed by the very low. An overweight mobile home servicemember, the carrier’s represent- tends to blow tires and break apart ative, and the Government inspector. during shipment. Servicemembers It is vital and a claim should not be should be advised long before shipment paid without it. At destination, dam- that they will have to make other ar- ages noted at delivery should be anno- rangements for shipping such items at tated and the form dated and signed by their own expense. the driver and the servicemember. (ii) A mobile home should never be Damages may be listed on this form or shipped with defects in the steel frame on the DD Form 1840 (Joint Statement or tow hitch. of Loss or Damage at Delivery). (iii) The condition of all tires should (ii) DD Form 1863 (Accessorial Services- be checked and recorded. Some carriers Mobile Home). For shipments after 1 No- submit huge bills for ‘‘blown’’ tires vember 1987, DD Form 1863 lists all during shipment. services the carrier is required to pro- (iv) Structural changes to the inte- vide, including line-haul, payment of rior of the home, particularly those tolls, overdimension charges, permits that involve cutting through beams, and licenses, provision of anti-sway de- should be examined closely and a civil vices, axles with wheels and tires, tem- engineer should be called in to render porary lights, and escort services. All an opinion. Frequently, it is not safe to costs and services may not appear on ship mobile homes in which the claim- the GBL. For shipments prior to 1 No- ant has altered the interior framing. vember 1987, damages may also be list- (3) Latent Defects. Many carriers will ed on this form. attempt to escape liability by attrib- (iii) DD Form 1840/1840R. Beginning 1 uting all damage to latent manufactur- November 1987, later-discovered dam- ing defects. A loss due to such a defect, ages must be listed on DD Form 1840R like a loss due to any other mechanical and dispatched to the carrier within 75 defect, is not considered incident to days of delivery. Timely notice on mo- service. When an engineer’s report or bile home shipments differs slightly other evidence shows that damage was from such notice on other shipments. indeed caused by a defect rather than Item 306 of the carrier’s rate solicita- by the carrier’s failure to take the nec- tion provides that ‘‘upon delivery by essary care, the following rules apply: the carrier, all loss of or damage to the (i) If both the carrier and the claim- mobile home shall be noted on the de- ant knew or should have known of the livery document, the inventory form, defect, and if the claimant took no cor- the DD Form 1800, and/or the DD Form rective action and had the mobile 1840. Late discovered loss or damage, home shipped anyway, the claim is not including personal property within the payable. mobile home, will be noted on the DD (ii) If the carrier knew or should have Form 1840R not later than 75 days fol- known of the defect, and the claimant lowing delivery and shall be accepted could not reasonably have been ex- by the carrier as overcoming the pre- pected to know of it, the claim is pay- sumption of correctness of delivery re- able and liability should be pursued ceipt.’’ against the carrier. (iv) DD Form 1412 (Inventory of Items (iii) If neither the claimant nor the Shipped in Housetrailer). Prior to 1 No- carrier could reasonably be expected to vember 1987, the servicemember pre- know of the defect, the claim is not pared DD Form 1412. After 1 November payable. 1987, the carrier is required to prepare (4) Substantiation of a claim. Prior to this in coordination with the adjudication of such claims, the mobile servicemember.
412
VerDate 25
(v) DD Form 1841. If a Government pensated for services the carrier failed representative does not inspect the mo- to perform or performed improperly or bile home at delivery, an inspection for other incidental expenses. The should be requested. claimant should be referred to the (vi) Driver’s statement. The mobile transportation office for these. Such home carrier should be requested to services (listed on DD Form 1843 and provide (within 14 days) a statement the GBL correction notice) include: from the driver of the towing vehicle (i) Escort or pilot services, ferry fees, explaining the circumstances surround- tolls, permits, overdimension charges, ing the damage as well as detailed or taxes. travel particulars. If the mobile home (ii) Storage costs or parking fees en carrier does not respond, the file route. should be so annotated. Such state- (iii) Expand charges and charges for ments are often self-serving and should anti-sway devices, brakes and brake re- be reviewed critically to determine pairs, or adding or replacing axles, whether the carrier is attributing dam- tubes, or tires. age to a latent defect. (iv) Wrecker service. (vii) Owner’s statement. The claimant (v)Connecting or disconnecting utili- should provide a statement concerning ties. the age of the mobile home, the date (vi) Blocking, unblocking, or remov- and place purchased, any prior damage ing or installing skirting. or repairs, all prior moves, and prior claims. (vii) The cost of separating or re- (viii) Estimates of repair. When pos- assembling and resealing a double-wide sible, the claimant should obtain two mobile home. estimates of repair from firms in the (6) Carrier liability and attempted waiv- business of repairing, rather than sell- ers. In the absence of additional cov- ing, mobile homes. Such estimates erage, the carrier’s maximum liability should list the approximate value of for personal property shipped with the the home before and after damage, a mobile home is $250.00. The carrier is detailed breakdown of the repairs need- fully liable for damages to the mobile ed and their cost, and the cause of home itself. Carriers are also liable for damage. damage caused by third parties with (ix) Engineer’s statement. Where the whom they contract, such as wrecker facts indicate the possibility of a la- services. Some carriers may still try to tent defect, the claimant should be as- obtain waivers, from the sisted in obtaining a statement from a servicemember. A waiver signed by the qualified engineer or vehicle mainte- servicemember, however, is not binding nance professional with expertise in on the United States. The Navy is the mobile homes explaining the cause of contracting party and the owner has damage. The claims office should co- not authority to sign a waiver agree- ordinate in advance with facilities en- ment or any other document purport- gineers or with local reserve units with ing to exempt the carrier from the li- engineering expertise to provide such ability imposed under the GBL. inspection where possible. (5) Compensable damage. In adjudicat- § 751.13 Payments and collections. ing the claim, the claimant may be Payment of approved personnel paid for loss of or damage to the mobile claims and deposit of checks received home except when the damage is due to from carriers, contractors, insurers, or a latent defect, to the servicemember’s members will be made by the Navy or failure to place the home in fit condi- Marine Corps disbursing officer serving tion to ship, or to the servicemember’s the adjudicating authority. Payments failure to have the roof resealed. The will be charged to funds made available servicemember may also be com- to the adjudicating authority for this pensated for the reasonable cost of re- purpose. Credit for collections will be pair estimates provided by firms in the to the accounting data specified in business of mobile home repair and of Navy Comptroller Manual section opinions prepared by qualified engi- 046370, paragraph 2 or in superseding neers. The claimant may not be com- messages, if applicable.
413
VerDate 25
§ 751.14 Partial payments. tion. The claimant shall be notified of (a) Partial payments when hardship ex- this action either by letter or by copy ists. When claimants need funds to feed, of the letter forwarding the file to clothe, or house themselves and/or higher adjudicating authority. The for- their families as a result of sustaining warding letter shall include a synopsis a compensable loss, the adjudicating of action taken on the file and reasons authority may authorize a partial pay- for the action or denial, as well as a ment of an appropriate amount, nor- recommendation of further action or mally one-half of the estimated total denial. payment. When a partial payment is (b) Files forwarded to JAG. For files made, a copy of the payment voucher forwarded to JAG in accordance with and all other information related to § 751.15(a), the forwarding endorsement the partial payment shall be placed in shall include the specific reasons why the claim file. Action shall be taken to the requested relief was not granted ensure the amount of the partial pay- and shall address the specific points or ment is deducted from the adjudicated complaints raised by the clamant’s re- value of the claim when final payment quest for reconsideration. is made. (c) Appeals procedure for claims submit- (b) Marine hardship payments. The ted by Marine Corps personnel. Where Marine claimant’s Transportation any of the Marine Corps adjudication Management Office (TMO) shall ensure authorities listed in § 751.8(b) fail to compliance with all requirements of grant the relief requested, or otherwise § 751.14(a), and may request authority resolve the claim the satisfaction of for payment by message from the Com- the claimant, the request for reconsid- mandant of the Marine Corps (MHP– eration shall be forwarded together 40). with the entire original file and the ad- (c) Effect of partial payment. Partial judicating authority’s recommenda- payments are to be subtracted from the tion, to the Judge Advocate General. adjudicated value of the claim before payment of the balance due. Overpay- §§ 751.16–751.20 [Reserved] ments are to be promptly recouped. Subpart B—Demand On Carrier, § 751.15 Reconsideration and appeal. Contractor, or Insurer (a) General. When a claim is denied either in whole or in part, the claimant § 751.21 Scope of subpart B. shall be given written notification of a the initial adjudication and of the Subpart B addresses the recovery right to submit a written request for process for loss or damage occurring reconsideration to the original adju- during the storage or transport of dicating authority within 6 months household goods and other personal from the date the claimant receives no- property for which military personnel tice of the initial adjudication of the and civilian employees were paid under claim. If a claimant requests reconsid- the provisions of 31 U.S.C. 3721. The au- eration and if it is determined that the thority for pursuing recovery action is original action was erroneous or incor- found at 31 U.S.C. 3711. rect, it shall be modified and, when ap- propriate, a supplemental payment § 751.22 Carrier recovery: In general. shall be approved. If full additional (a) Responsibility. Recovery of payment is not granted, the file shall amounts due for personal property lost be forwarded for reconsideration to the or damaged while in transit or in stor- next higher adjudicating authority. age at Government expense is a joint The next higher adjudicating authority Personal Property Office/Naval Legal may be the commanding officer of the Service Office responsibility. In order Naval Legal Service Office if a properly to establish liability and to effectively delegated subordinate has acted ini- pursue a recovery claim against a car- tially on the claim. For claims origi- rier, warehouseman, or other third nally adjudicated by the commanding party, it is essential that all required offer, the files will be forwarded to the action be accomplished in an expedi- Judge Advocate General for final ac- tious manner. Failure of the property
414
VerDate 25
owner or any Government agent to ex- (7) When necessary, DD Form 619–1, ercise diligence in the performance of Statement of Accessorial Services Per- duties may render collection of the formed, from the transportation office. claim impossible and thereby deprive (d) Carrier inspection. Claims office the Government of rightful revenue. personnel should inform claimants that Claims approving and settlement au- the carrier has the right to inspect thorities will ensure that all actions damaged goods within 75 days of deliv- required of the property owner and ery, or 45 days of dispatch of DD Form naval personnel are accomplished 1840R, whichever is later, and that promptly. damaged items must be held out for (b) Elements of collection. There are carrier inspection during that period. four elements in the successful asser- Essential items such as washer, dryer, tion and collection of a recovery claim. television etc., may be repaired prior They are: to that time if necessary. (1) Proving that a transit loss oc- (e) Repair estimates. Claims personnel curred; must ensure that repair estimates de- (2) Determining who had responsibil- scribe the specific location and damage ity for the goods at the time of the claimed and that the same damage is transit loss; claimed on DD Form 1844, Schedule of (3) Calculating the amount of dam- Property and Claims Analysis Chart. ages; and Repair estimates that merely note ‘‘re- (4) Pursuing the responsible party or finished’’ or ‘‘repaired’’ are not accept- parties vigorously. able. (f) DD Form 1844. Claims personnel § 751.23 Responsibilities. must ensure that DD Form 1844 is prop- (a) Notice of loss. Claims office person- erly completed with the nature and ex- nel must ensure that Notice of Loss or tent of the loss or damage to each item Damage, DD Form 1840R, is properly fully described, the correct inventory completed and dispatched to the liable numbers supplied, and correct item third party or parties within 75 days of weights utilized from the Military-In- delivery of the property. dustry Table of Weights (when these (b) Counseling of claimant. Claims of- weights are required for the code of fice personnel should coordinate with service involved). the local personal property office to (g) Demands on third parties. Claims ensure proper counseling regarding po- personnel must ensure that written de- tential claim procedures. mands against appropriate third par- (c) Documents. Claims office person- ties are prepared as described in § 751.26 nel must obtain from the claimant or and § 751.27. No demand will be made from the transportation office the fol- where it conclusively appears that the lowing documents needed to process re- loss or damage was caused solely by covery actions: Government employees or where a de- (1) A copy of the GBL or other docu- mand would otherwise be clearly im- ment used for shipment or storage. proper under the circumstances. If it is (2) A copy of the inventory. determined that a demand is not re- (3) A copy of the DD Form 1840 and quired, a brief written statement set- DD Form 1840R. ting forth the basis for this determina- (4) Where storage in transit was ex- tion will be included on the chronology tended from 180 days to 270 days, a copy sheet. Pursuant to the Joint Military- of the authorization from the transpor- Industry Agreement on Claims of $25.00 tation office allowing this extension at or Less, claims of $25.00 or less will not Government expense. be pursued because administrative (5) Where storage converted from costs outweigh recovery proceeds. Government paid storage to storage at owner’s expense, a copy of the claim- § 751.24 Notice of loss or damage. ant’s contract with the warehouse. (a) Exceptions. The claimant is re- (6) When necessary, a copy of DD quired to take exceptions and note any Form 1164, Service Order for Personal loss of damage at the time of delivery Property, from the transportation of- on the DD Form 1840 (Joint Statement fice. of Loss or Damage at Delivery). Later
415
VerDate 25
discovered damage must be noted on damage) increased from $.60 per pound the DD Form 1840R (Notice of Loss or per article to $1.25 multiplied by the Damage) and delivered to the claims net weight of the shipment ($2.50 for office or Personal Property Office with- shipments to and from Alaska). For in 70 days of delivery. Failure to take Codes 1 and 2 shipments picked up exceptions at delivery and note and re- prior to these dates, carrier liability port later discovered damage will re- remains at $.60 per pound per article sult in deduction on any lost potential and is calculated the same as for Code carrier recovery from payment of the 4 shipments. There are also two higher claim. Failure to note on the DD Form levels of coverage available in which 1840 items missing at the time of deliv- the owner pays the difference between ery may result in denial of claims for the basic coverage and the higher level those items. requested: High or higher increased re- (b) DD Form 1840/1840R. The DD Form leased valuation (Option 1) and full re- 1840/1840R is printed in carbon sets of placement protection (Option 2). These five with DD Form 1840 on the front higher carrier released valuation rates side and DD Form 1840R on the reverse only apply to Codes 1 and 2 shipments side. DD Form 1840/1840R is provided by and they do not affect the liability of a the carrier to the member at delivery. non-temporary storage (NTS) ware- Carriers were required to use this re- house which remains at $50.00 per line vised DD Form 1840/1840R beginning 15 item. August 1988 for international ship- (1) Increased Released Valuation (IRV). ments and 15 September 1988 for domes- IRV is the basic valuation for service tic shipments. This is the only docu- Codes 1 and 2 and is fully paid by the ment the carriers will accept for re- Government. If the claimant is due ad- porting loss and damage to household ditional recovery money, the words goods. The requirement to list all know ‘‘claimant due carrier recovery’’ must loss and damage at the time of delivery be added on the claims file to ensure on the DD Form 1840 is a joint respon- the recovered amount is provided to sibility of the claimant and the carrier. the claimant if eligible. IRV is not re- If the carrier fails to give the claimant flected on the GBL by an special lan- a DD Form 1840 at the time of the de- guage. For Codes 1 and 2 shipments livery, the carrier is liable for all dam- picked up after the effective dates age and does not have to be notified in mentioned above, the carrier’s released the 75-day timeframe valuation is $1.25 multiplied by the new (c) Military-Industry Memorandum of weight of the shipment ($2.50 multi- Understanding on Loss and Damage plied times the net weight of the ship- Rules. The Military-Industry Memoran- ment for shipments to and from Alas- dum of Understanding on Loss and ka). For example, if the weight of an Damage Rules became effective in 1985 IRV shipment moved from Kansas to with the implementation of the new New York is 10,000 pounds, the most DD Form 1840/1840R. This document the carrier could be held liable for should be thoroughly studied and com- would be $12,500 (10,000 pounds times pletely understood. $1.25=$12,500). If the same shipment was moved from Alaska to New York, the § 751.25 Types of shipments and liabil- maximum carrier liability would in- ity involved. stead be $25,000 (10,000 pounds times (a) Codes 1 and 2 (domestic including $2.50=$25,000). Alaska). Increased released valuation, (2) Higher Increased Released Valuation also referred to as ‘‘Basic Coverage,’’ (Option 1). This type of coverage may became effective within CONUS and be purchased by an owner who desires Alaska on 1 April 1987 for intrastate protection for items whose value ex- shipments (shipments within a single ceeds a maximum allowance or for a State), and on 1 May 1987 for interstate shipment whose value exceeds the stat- shipments (shipments from one State utory maximum. If the claimant is due to another). For Codes 1 and 2 ship- additional recovery money, the words ments picked up after these dates, the ‘‘claimant due carrier recovery’’ must carrier’s released valuation (the car- be added in the claims file. Option 1 rier’s maximum liability for loss and must be annotated on the original
416
VerDate 25
GBL. A GBL correction notice is ac- amount will be forwarded after recov- ceptable only if the carrier or his agent ery action is effected against the car- has notice of the correction before rier. Option 2 must be annotated on the pick-up. Option 1 may be listed in original GBL. A GBL correction notice block 27 or block 30 either as a lump is acceptable only if the carrier or his sum, such as ‘‘Option 1—$30,000,’’ or as agent receives notice of the correction a multiple, such as ‘‘Option 1—$3.00 before pick-up. Option 2 may be listed times the net weight.’’ The carrier’s in block 27 or block 30 either as a lump maximum liability is whatever higher sum, such as ‘‘Full Replacement Pro- valuation the claimant places on the tection—$50,000.00,’’ or as a multiple, shipment. For example: The owner of a such as ‘‘Full Replacement Protec- 10,000 pound shipment requests Option tion—$3.50 times the net weight.’’ The 1 coverage of $30,000.00 and has this carrier’s maximum liability is the listed on the GBL. The carrier’s maxi- higher valuation the claimant places mum liability is $30,000.00. Under basic on the shipment. For example: The coverage, the carrier’s maximum li- owner of a 10,000 pound shipment re- ability for this shipment would only be quests full replacement protection of $12,500.00. The claimant must initially $3.50 times the net weight of the ship- file a claim with the carrier. The Gov- ment and has this listed on the GBL. ernment will only accept a claim if the The carrier’s maximum liability is carrier denies the claim, if delay would $35,000.00 (10,000 pounds times cause hardship, or if the carrier fails to $3.50=$35,000.00). Under basic coverage, satisfactorily settle the claim within 30 the carrier’s maximum liability for days. The claim is adjudicated in the this shipment would only be $12,500.00. normal fashion, applying depreciation and maximum allowances. Demand is (4) Calculating liability on IRV, Option then made on the carrier for the full 1, and Option 2 shipments. (i) Under IRV value of the item lost or damaged. and Option 1, the carrier’s maximum li- When recovery is effected, the Govern- ability for loss or damage to a single ment keeps an amount equal to that item is limited to the repair cost or de- paid to the claimant and disperses the preciated replacement cost of the item. remaining recovery to the claimant. Under Option 2, the carrier’s maximum (3) Full Replacement Protection (Option liability for a single item is the repair 2). This type of coverage may be pur- cost or the undepreciated replacement chased by an owner who desires protec- cost of the item. The carrier’s maxi- tion for items whose value exceeds a mum liability for the entire claim is maximum allowance, for a shipment limited to the released valuation, whose value exceeds the statutory which is either the lump sum declared maximum, or because the claimant by the owner or the net weight of the does not wish to have the replacement shipment times the applicable multi- cost of destroyed or missing items de- plier. The net weight of the shipment is preciated to their fair market value. normally listed in block 4 of DD Form The minimum coverage available under 1840 (block 3 of DD Form 1840 dated Full Replacement Protection is September 84). If the net weight is $21,000.00 or $3.50 times the net weight missing, it should be obtained from the of the shipment, whichever is greater. transportation office. A member who chooses this coverage (ii) In completing the carrier liabil- must initially file a claim with the car- ity section of DD Form 1844, ignore the rier, allowing the carrier the right to Joint Military-Industry Table of repair or replace items. The Govern- Weights. Assert the amount adju- ment will only accept a claim if the dicated on each item for which the car- carrier denies the claim, if delay would rier is liable in the carrier liability col- cause hardship, or if the carrier fails to umn. Where the Government payment satisfactorily settle the claim within 30 was limited by application of a maxi- days. If a claim is submitted to the mum allowance (or by depreciation on Government, the claim is adjudicated full replacement cost claims), assert normally, applying depreciation and the full, substantiated value. Total the maximum allowances. The claimant amounts for which the carrier is liable should be informed that any additional in the carrier liability column. If this
417
VerDate 25
total exceeds the maximum carrier li- where a carrier provides line-haul serv- ability for the entire claim, the maxi- ice from origin residence to a military mum carrier liability should be entered ocean terminal. The Government, on DD Form 1843 as the amount de- through the Military Sealift Command manded. Do not, however, change the (MSC), provides ocean transportation total of the amounts for which the car- to the designated port of discharge, and rier is liable on the DD Form 1844. the carrier provides line-haul service (iii) If the amount the claimant re- to the destination residence. ceives from the Government is limited (2) A Code T shipment is the move- by application of a maximum allow- ment of household goods where the car- ance (or by depreciation on full re- rier provides containerization at origin placement protection claims) leaving and transportation to the designated the claimant with an uncompensated Military Airlift Command (MAC) ter- loss, the claimant may be due reim- minal. MAC provides terminal services bursement from recovery money after at both origin and destination, and air recovery is effected on the claim. transportation to a designated MAC Claimants with uncompensated losses terminal. The carrier provides trans- who have basic coverage are only enti- portation to the destination residence. tled to reimbursement from recovery (3) On Code 5 and T shipments, it is money if the amount recovered exceeds often difficult to decide whether the the amount paid by the Government Government or the carrier was in ac- (unless the loss was in excess of the tual custody of the shipment at the statutory maximum). Claimants with time of loss or damage. In order to re- uncompensated losses who purchased duce liability disputes in such situa- Option 1 or Option 2 are entitled to re- tions, a 50-percent compromise agree- imbursement up to the value of their ment between industry and the mili- additional coverage. Such files should tary has been reached. be marked: ‘‘claimant due carrier re- (4) When the 50-percent compromise covery.’’ The claimant should be in- is appropriate or applicable, the DD formed that recovery from the carrier Form 1844 is prepared in the normal is dependent on the amount and qual- fashion utilizing weights indicated in ity of the substantiation the claimant the Military-Industry Table of Weights provided, and that the actual recovery multiplied by $.60 per pound. Two dif- may be less than anticipated. The ferent sums should be listed for carrier claimant should further be informed liability at the bottom of the DD Form that considerable time will elapse be- 1844, the amount of liability due under fore recovery is effected and reimburse- the 50-percent compromise and the full ment made. Such claims should be amount that will be offset if carrier processed for recovery action as expe- fails to pay, e.g., ‘‘$100.00 Code T, ditiously as possible. $200.00 Full Liability.’’ This same com- (b) Codes 4 and 6 (International and putation should be reflected in the Hawaii). On Codes 4 and 6, inter- ‘‘amount of claim’’ box on DD Form national GBL shipments, carrier liabil- 1843 (Demand on Carrier/Contractor). If ity is computed at $.60 per pound mul- a carrier refuses to make a satisfactory tiplied by the weight of the article or settlement or fails to make a timely carton as prescribed by the Joint Mili- response to the demand, the carrier’s tary-Industry Table of Weights. In full liability will be collected. cases where the entire shipment is lost (d) Codes 7, 8, and J (Unaccompanied or damaged, liability will be computed Baggage Shipments). Gross Weight Rules. on the net weight of the shipment Government payment to the carrier for times $.60 per pound. The net weight of transportation of unaccompanied bag- the shipment may be obtained from the gage (Codes 7, 8, and J) is based upon origin transportation office. gross weight of the shipment. Unless (c) Codes 5 and T (International and the inventory is prepared as a ‘‘Proper Hawaii). (1) A Code 5 shipment is the Household Goods Descriptive Inven- movement of household goods in Mili- tory,’’ computation of carrier liability tary Traffic Management Command for loss or damage incurred in a Code 7, (MTMC) approved door-to-door ship- 8, or J shipment will also be based upon ping containers (wooden boxes) and gross weight. Gross weight is defined as
418
VerDate 25
the total weight of all articles, includ- tation office which lists the services ing necessary packing materials and required of the carrier in accordance packing containers. The shipping con- with the provisions of the Federal Ac- tainer is the external crate (tri-wall or quisition Regulation (FAR). The pur- other Government approved container) chase order usually includes packing into which individual articles and/or and picking up the goods at origin resi- packing cartons are placed. For the dence or from storage, transporting the majority of claims, liability will be as- goods within a designated distance, and serted on gross weight of the container. delivering and unpacking the goods at (2) Baggage shipments prepared using a destination. All these services are per- ‘‘Proper Household Goods Descriptive In- formed under the authority of one pur- ventory.’’ The Joint Military/Industry chase order and will usually be accom- Table of Weights will apply to Code 7, plished the same day or within a few 8, or J unaccompanied baggage ship- days of pickup. Timely notice must ments if the inventory has been pre- exist in order to pursue carrier recov- pared as a ‘‘Proper Household Goods ery and liability is usually based on a Descriptive Inventory,’’ in accordance released valuation of $.60 per pound per with Paragraph 54 of the Tender of article. The Joint Military/Industry Service for Personal Property House- Table of Weights is used to calculate li- hold Goods and Unaccompanied Bag- ability. There is no insurance coverage gage (DOD 4500.34–R, appendix A). A required on local contractors; if the properly prepared inventory should re- local contractor is no longer in busi- flect the size of each individual carton, ness or bankrupt, the file may be give a general description of carton closed. contents, and note preexisting damage. (2) Direct delivery from NTS. In cir- The complete inventory, not just a por- cumstances where one contractor is re- tion, must have been prepared as a sponsible for pick-up, NTS, and deliv- proper household goods inventory. If an ery of the shipment, liability for loss inventory is only partially prepared as or damage is assessed against that car- a proper household goods descriptive rier. Nontemporary storage of house- inventory, gross weight will be used. hold goods requires completion of DD (e) Local moves and NTS. There are Form 1164 (Service Order for Personal basically two types of NTS shipments: Property) in accordance with the provi- A direct delivery from NTS by the sions of the Basic Ordering Agreement same company that stored the property (BOA). The ‘‘handling-in’’ portion of and a delivery from NTS which was the shipment is accomplished by picked up at the warehouse by a GBL issuance of the Initial Service Order, carrier. Direct deliveries of household DD Form 1164. The goods are usually goods from NTS are often erroneously stored for a period of 6 months to 4 construed as local moves. It is some- years. The ‘‘handling-out’’ and post- times difficult to tell the difference be- storage services are accomplished by a tween the two since a shipment deliv- supplemental service order. These are ered from NTS by the warehouseman is usually long term storage, short dis- usually also a short distance (local) tance moves processed under the au- move. The type of contract involved thority of at least two documents: the determines whether or not the ship- initial service order and the supple- ment is considered a local move, a di- mental service order. The BOA states rect delivery from NTS, or a carrier de- that the contractor shall be liable ‘‘in livery picked up from NTS. These dis- an amount not exceeding fifty dollars tinctions are important since different ($50.00) per article or package listed on liability is involved. the warehouse receipt or inventory (1) Local move. A local move is a ship- form’’ (i.e., $50.00 per inventory line ment performed under a local contract item). that authorizes property to be moved (3) Carrier delivery picked up from NTS. from one residence to another within a The NTS portion of the shipment re- specified area (usually a move from off quires completion of an Initial Service base to on base, or the reverse). The Order, DD Form 1164, to accomplish the contract for a local move is the pur- ‘‘handling-in’’ of the goods into the chase order prepared by the transpor- warehouse for storage, as prescribed by
419
VerDate 25
the provisions of the BOA. When stor- letter codes identify the GBL as a DPM age is terminated, the ‘‘handling-out’’ contract. and post-storage services are accom- (ii) Block 18, ‘‘consignee,’’ and Block plished by issuance of a GBL in accord- 19, ‘‘from,’’ on the GBL contain the ance with the tender of service. The name and address of another carrier or GBL may be issued to a different com- transportation office rather than the pany or in some cases to the same com- name and address of the claimant. pany that stored the goods. These are (iii) Block 27, ‘‘description of ship- long-term storage, long-distance moves ment,’’ on most GBL’s contains the processed under the authority of two statement, ‘‘household goods released documents: the initial service order at a value of 10 cents per pound per ar- and the GBL. Liability is assessed en- ticle.’’ This refers to the motor freight tirely against the delivering carrier at carrier’s liability only. The origin and whatever rate is appropriate for the destination contractors’ liability is code of service involved, unless the car- rier prepares an exception sheet (rider) still $.60 per pound times the weight of noting damage or loss at the time the the article or carton, as indicated in goods are picked up from the ware- the Joint Military/Industry Table of house. The exception sheet must be Weights. signed by a warehouse representative. (iv) If liability lies against the motor If a valid exception sheet exists, liabil- freight carrier, the term ‘‘article’’ is ity for items noted on the exception defined as the weight of each packed sheet is assessed against the NTS ware- item, such as the weight of a broken house at $50.00 per inventory line item. dish within a carton rather than the An exception sheet should be prepared net weight of a carton, as used against by the GBL carrier who picks up the the origin and destination contractors. goods from NTS even if that carrier is Liability is computed against the the same company that stored the motor freight carrier at a rate of $.10 goods. This is necessary in order to re- per pound times the weight of the arti- lieve the carrier from liability as a car- cle. rier. If either the carrier alone, or both (3) Since 1 January 1981 the destina- the carrier and the NTS facility, fail to tion contractor has been held liable for pay their proper liability, the file is loss and damage unless it can prove forwarded to the Naval Material Trans- that it is not at fault, i.e., took excep- portation Office, (NAVMTO), Norfolk, tions prior to receipt of goods. The Virginia for offset action. motor freight carrier is liable for any (f) Direct Procurement Method (DPM). damage or loss noted against it during (1) A DPM move is a method in which its portion of the move. If the motor the Government manages the shipment freight carrier has noted specific dam- from origin to destination. Contracts age when it received the shipment, li- are issued to commercial firms for ability is charged against the origin packing, containerization, local contractor at $.60 per pound times the drayage, and storage services, or Gov- ernment facilities and employees pro- weight of the article or carton. Damage vide these services. Separate arrange- noted against the origin contractor or ments are made with carriers and sepa- motor freight carrier should be indi- rate documents are issued for each seg- cated on a valid shipping document and ment throughout. DPM contractors are generally involves distinct damage to also known as packing and crating or missing containers. These docu- (P&C) contractors, as local drayage ments must be signed by all parties in- contractors, or just as local contrac- volved in the transfer of the goods. tors. (4) The destination contractor must (2) GBL’s for DPM shipments are usu- receive timely notice of loss or damage ally only issued to motor freight car- via DD Form 1840/1840R and a demand riers. packet. If exceptions were taken (i) Block 3 on the GBL entitled ‘‘serv- against the origin contractor or motor ice code’’ will contain the letters A, B, freight carrier on a transfer document, H, or V, followed by a second letter A, they should receive only demand pack- H, K, N, P, R, W, X, or Y. These two ets.
420
VerDate 25
(5) In determining destination or ori- other mobile home carrier for trans- gin contractor’s liability, the term ‘‘ar- port, the first carrier will continue to ticle’’ has been defined as each ship- be shown on the GBL and is responsible ping carton or container and the con- for the mobile home from pickup to de- tents thereof, less any exterior crate or livery. The carrier is also responsible shipping carton. The net weight of each for damage caused by third parties it article (carton or box) packed within engages to perform services such as the exterior crate or carton may be auxiliary towing and wrecking. used to determine the contractor’s li- (iv) Water damage. Water damage to a ability for a damaged or missing item double-wide or expando-type mobile originating out of that carton. home is usually due to the carrier’s (6) Claims offices should obtain a failure to provide sufficient protection copy of the DPM contract from the against an unexpected rainstorm. Car- local contracting office or transpor- riers will often assert that this damage tation office in order to identify which is due to an ‘‘act of God’’ and attempt company has the DPM contract and to avoid liability. It is, however, the verify the limits of the liability clause. carrier’s responsibility to ensure safe Contracts are awarded on a calendar- transit of the mobile home from origin year basis. to destination. Not only should car- (g) Mobile homes. Mobile home claims riers be aware of the risk of flash floods represent such a small percentage of and storms in certain locales during claims received that claims personnel certain seasons, but a carrier is sup- are often unfamiliar with the require- posed to provide protective covering ments and documentation necessary to over areas of the mobile home exposed process such claims. For an expla- to the elements. Carrier recovery nation of the adjudication of such should be pursued for water damage to claims and the forms used to effect these types of mobile homes. shipment, see § 751.12(g) above. (v) Waivers signed by the claimant. The (1) Carrier liability—(i) For damage to carrier may attempt to escape liability the mobile home. Carrier liability for by having the owner execute a waiver damage to a mobile home is generally of liability. Such waivers are not bind- the full cost of repairs for damage in- curred during transit. A mobile home ing upon the United States. carrier is excused from liability when (vi) Extensions of storage in transit the carrier can introduce substantial (SIT). The extension of SIT past 180 proof that a latent structural defect days is only applicable to household (one not detectable during the carrier’s goods and holdbaggage shipments. It is preliminary inspection) caused the loss not applicable to the shipment of mo- or damage. bile homes. If a mobile home remains (ii) For damage to contents. The car- in SIT past 180 days, storage is at the rier’s liability for loss or damage to owner’s expense. household or personal effects inside the (2) Notice. Item 306 of the carrier’s mobile home (such as clothing and fur- rate solicitation states that: ‘‘Upon de- niture. or furnishings which were not livery by the carrier, all loss of or dam- part of the mobile home at the time it age to the mobile home shall be noted was manufactured) is limited to $250.00 on the delivery document, the inven- unless a greater value is declared in tory form, the DD Form 1800, and/or writing on the GBL. Under the Mobile the DD Form 1840. Late(r) discovered Home One-Time-Only (MOTO) rate sys- loss or damage, including personal tem, effective for shipments after 1 No- property within the mobile home, will vember 1987 the owner no longer pre- be noted on DD Form 1840R not later pares his own inventory. Under the than 75 days following delivery and MOTO system, the carrier in coordina- shall be accepted by the carrier as tion with the owner is required to pre- overcoming the presumption of cor- pare a legible descriptive inventory on rectness of delivery receipt.’’ Notifica- DD Form 1412, Inventory of Articles tion to the carrier may be made on any Shipped in House Trailer. of the documents. Claims personnel (iii) Agents of the mobile home carrier. will dispatch the DD Form 1840R in ac- If the shipment is transferred to an- cordance with § 751.14.
421
VerDate 25
(3) Preparation of demands. The car- storing or handling while in the cus- rier is liable for the full amount of sub- tody of the Government, no demand stantiated damage to the mobile home shall be made against the carrier. itself (less estimate fees), plus up to (b) Marine Corps claimants. For Ma- $250.00 for loss or damage to contents rine Corps claimants, the claims inves- (unless the claimant purchased in- tigating officer will prepare the claim creased released valuation on the con- against the carrier, contractor, and/or tents). Prepare a demand for this insurer and will mail it (together with amount. In addition to the DD Form the DD Form 1842 claim package) to 1843 and DD Form 1844, the demand the Commandant of the Marine Corps packet should include the following (MHP–40), who will submit and assume documents: the responsibility of monitoring the (i) DD Form 1800, Mobile Home In- claim against the carrier. spection Record; (c) NTS warehousemen. Whenever (ii) DD Form 1863, Assessorial Serv- property is lost, damaged, or destroyed ices, Mobile Home; while being stored under a basic agree- (iii) DD Form 1840/1840R, Joint State- ment between the Government and the ment of Loss or Damage at Delivery/ warehouseman, the claims investigat- Notice of Loss; ing officer, or appropriate Naval Legal (iv) DD Form 1412, Inventory of Items Service Command (NLSC) activity, Shipped in House Trailer; shall file a written claim for reim- (v) DD Form 1841, Government In- bursement with the warehouseman spection Report; under the terms of the storage agree- (vi) Driver’s statement, from the ment. driver of the towing vehicle; (d) Insurer. When the property lost, (vii) Claimant’s statement concern- damaged, or destroyed is insured, the ing previous moves; claimant must make a demand against (viii) Estimates of repair, preferably the insurer for payment under the two, from firms in the business of re- terms of the insurance coverage within pairing mobile homes; and the time provided in the policy. If the (ix) Engineer’s statement, or state- amount claimed is clearly less than the ment by other qualified professionals. policy deductible, no demand need be (4) References. Chapter 3 and Appen- made. Failure to pursue a claim dix E of DOD 4500.34–R, pertain to mo- against available insurance will result bile home shipment and contain much in reducing the amount paid on the valuable information. Another source claim by the amount which could have is NAVSUP 490, Chapter 10 ‘‘Mobile been recovered from the insurer. When Homes of Military Personnel.’’ an insurer makes a payment on a claim in which the Government has made a § 751.26 Demand on carrier, contrac- recovery against the carrier or con- tor, or insurer. tractor, the insurer shall be reimbursed (a) Carrier. When property is lost, a pro rated share of any money recov- damaged, or destroyed during shipment ered. under a GBL pursuant to authorized travel orders, the claims investigating § 751.27 Preparation and dispatch of officer or adjudicating authority demand packets. (whichever can more efficiently per- Demand on a carrier or contractor form the task) shall file a written shall be made in writing on DD Form claim for reimbursement with the car- 1843 (Demand on Carrier) with a copy of rier according to the terms of the bill the adjudicated DD Form 1844 (Sched- of lading or contract. This demand ule of Property) attached. shall be made against the last carrier (a) Demand packets. A demand is a known to have handled the goods, un- monetary claim against a carrier, con- less the carrier in possession of the tractor, or insurer, to compensate for goods when the damage or loss oc- loss or damage incurred to personal curred is known. In this event, the de- property during shipment or storage. mand shall be made against the respon- DD Form 1843 represents the actual de- sible carrier. If it is apparent the dam- mand. The demand packet is a group of age or loss is attributable to packing, documents, stapled together and sent
422
VerDate 25
to the liable third party. More than § 751.28 Assignment of claimants one demand packet should be prepared rights to the government. when more than one party is deemed to The claimant shall assign to the Gov- be liable. Do not use original docu- ernment, to the extent of any payment ments. Demand packets should be made on the claim, all rights and inter- mailed in official DON envelopes. No est the claimant may have against any demand packet should be prepared for contractor, carrier, or insurer or other claim files that have been closed or party arising out of the incident on when potential recovery is $25.00 or which the claim is based. The claimant less. In those cases the outside of file shall also furnish such evidence as may folders in the upper left-hand corner be required to enable the Government should be marked ‘‘CLOSED.’’ A de- to enforce its claim. If the claimant re- mand packet will include the follow- fuses to cooperate, steps may be taken ing: to ensure return of monies paid on the item which the Government is trying (1) DD Form 1843, Demand on Carrier/ to collect. Contractor; (2) DD Form 1844, Schedule of Prop- § 751.29 Recoveries from carrier, con- erty and Claim Analysis Chart; tractor, or insurer. (3) DD Form 1841, Government In- (a) Recoveries. If a claimant receives spection Report (if available); payment from the Government under (4) DD Form 1164, Service Order for this instruction and also receives com- Personal Property (when applicable); pensation from a carrier, contractor, or (5) Copies of all repair estimates insurer for the same loss, the Govern- (translated from foreign languages); ment shall collect from the claimant and the amount necessary to prevent the (6) Copies of all other supporting doc- claimant from being compensated uments deemed appropriate. twice for the same loss. If the amount (b) Dispatch of demand packets. (1) The payable on a claim is less than the ad- judicated value of the claim, excess re- demand packets are directly dis- coveries from carriers, and other third patched by the appropriate personal parties shall be paid to the member as property office or the Naval Legal long as the total amount paid does not Service Office to the third party. exceed the value of the claim as adju- (2) Privately Owned Vehicles (POV’s). dicated. Demands for loss or damage to POV’s (b) Recovered property. When lost will not be made directly against ocean property is found, the claimant may, at carriers operating under contract with his option, accept all or part of the the MSC. After payment is made to the property and return the full payment claimant, one copy of the complete or a pro-rated share of the payment re- claim file will be forwarded directly to ceived from the Government on the Commander, MSC. Each file shall in- claim for the recovered property. Sur- clude the following: rendered property shall be disposed of (i) The payment voucher; under applicable salvage and disposal (ii) The completed personnel claim procedures. forms; § 751.30 Settlement procedures and (iii) The estimated or actual cost of third party responses. repair; (a) Settlement procedures. In the inter- (iv) A document indicating the condi- est of expeditious office administra- tions of the items upon delivery to the tion, correspondence to carriers and carrier; and contractors should be kept to a mini- (v) a document indicating the for- mum. Normally, one rebuttal to a third warding condition of the POV upon its party’s denial of liability is sufficient, return to Government control. unless the carrier or contractor raises The letter of transmittal should iden- new arguments or provides new infor- tify the vessel by name, number, and if mation. available, the sailing date. (1) Checks from third parties. Accept checks for the amount demanded from
423
VerDate 25
carriers and contractors. If a carrier or tractor’s basis for denying liability in contractor forwards a check for less the light of all the evidence. than the amount demanded, review the (i) Acceptable third party reasons for carrier’s arguments for reducing liabil- denial. Mark the front upper left-hand ity to determine if they are acceptable. corner of such files as ‘‘CLOSED.’’ If the third party’s basis for reducing (ii) Partially acceptable and unaccept- liability is acceptable in the light of all able third party reasons for denial. If the evidence, deposit the check and dis- carrier or contractor’s basis for deny- patch the unearned freight letter, if ap- ing liability is acceptable only in part plicable. Mark the front upper left- or is completely unacceptable, follow hand corner of the file as ‘‘CLOSED.’’ the procedures in subparagraph (3) (2) Third party offers of settlement. If a above, requesting the amount that is carrier or contractor offers to settle justified under the circumstances in the claim, review the carrier’s argu- the light of all the evidence. If a re- ments for reducing liability to deter- sponse is not received within 45 days, mine if they are acceptable. If the third or if the third party’s reply is not re- party’s basis for reducing liability is sponsive, request NAVMTO, Norfolk acceptable in light of all evidence, in- (or appropriate contract officer) take form the carrier that the offer is ac- offset action as described above. cepted, but that offset action will be (b) Depreciation. In determining pay- initiated if a check for that amount is ments to claimants, the depreciation not received within 45 days. If a check rates from the Allowance List—Depre- ciation Guide are used. In determining in the amount acceptable to the Gov- third party liability, however, a dif- ernment is received, deposit it and dis- ferent depreciation guide, the Joint patch the unearned freight letter, if ap- Military/Industry Depreciation Guide plicable. Mark the front upper left- is used instead. In most instances, the hand corner of the file as ‘‘CLOSED.’’ depreciation rates are the same in both If a check in the proper amount is not guides, and claims personnel are not received within 45 days, send the re- required to consult the Joint Military/ quest to NAVMTO, Norfolk (or appro- Industry Depreciation Guide or alter priate contract officer) for offset ac- the depreciation taken on items prior tion (see § 751.32 of this part). to dispatching demands. If, however, a (3) Unacceptable third party checks and carrier or contractor objects to the de- offers of settlement. If a third party’s preciation rate utilized for certain basis for denying liability is not valid, items, consult the Joint Military/In- respond to that carrier or contractor. dustry Depreciation Guide and use the Return unacceptable checks. Explain depreciation rate found in that guide if the reasons for not accepting the check it differs from the rate in the Allow- or offer, and request the amount that ance List-Depreciation Guide. is justified under the circumstances in the light of all the evidence. If a re- § 751.31 Common reasons for denial by lease was included, amend the release carrier or contractor. to the revised amount and sign, date, The following are common reasons witness, and return it. Warn the carrier given for denial of an entire claim, or or contractor that the claim will be for individual items on a claim. Each forwarded for offset action if a check reason for denial is followed by a short for the amount justified under the cir- discussion of the validity of such a de- cumstances is not received within 45 nial. days. Suspend the file for 45 days and if (a) The carrier alleges that valid excep- a check in the proper amount is re- tions were made at the time of pickup ceived, deposit it and dispatch the un- from the NTS facility. When a carrier earned freight letter, if applicable. If a provides an exception sheet it contends check in the proper amount is not re- was made at time of transfer, this ex- ceived within 45 days, request ception sheet must bear the signature NAVMTO, Norfolk (or appropriate con- of a representative of the NTS facility. tract officer) to take offset action. Without a signed exception sheet there (4) Third party denials of liability. is no evidence that the NTS facility Upon receipt, review the carrier or con- was made aware of these exceptions
424
VerDate 25
and given the opportunity to confirm does not relieve the carrier of liability or deny the alleged condition of the and is insufficient to rebut a well-es- items in question. The burden of proof tablished prima facie case of liability. is on the carrier to provide the valid (f) The carrier denies liability on miss- exception sheet and establish its free- ing items because the items do not appear dom from liability. on the new inventory made at pickup (b) The carrier denies liability for miss- from the NTS facility. When a carrier ing or damaged item packed in cartons be- picks up a shipment from NTS and cause it did not pack the shipment and chooses to prepare a new inventory, it the cartons did not show outside damage. must use identical or cross-referenced When a carrier accepts a shipment in numbers. If an article such as a chair apparent good order, it is responsible or a lawnmower is missing, it must be for damage to packed items, unless it indicated as ‘‘missing’’ on the new in- can prove that the packing was im- ventory. Whether or not a new inven- proper and was the sole cause of the tory is made, an exception sheet must damage. be prepared and the missing articles (c) The carrier contends that the mildew must be noted thereon. To relieve the damage occurred in NTS and not during carrier of liability, both the new inven- its transport of the shipment. Mildew for- tory and the exception sheet must be mation is more likely to occur in NTS signed by representatives of the NTS than in transport. Unsupported by evi- facility and the carrier. dence, however, an allegation that mil- (g) The carrier denies liability due to dew formation occurred during NTS ‘‘act of God.’’ An act of God is an event does not rebut the established prima that could not have been prevented by facie case of a carrier liability. A car- rier must prepare an exception sheet human prudence. It is generally seen as and note any mold or mildew damage an occurrence in which human skill or when the items were picked up from watchfulness could not have foreseen the NTS facility. The burden of proof is the disaster. The burden of proof is on on the carrier to show that it was free the carrier to establish that an ‘‘act of from negligence and that the damage God’’ existed and that it was the sole was due solely to the formation of mil- cause of the damage claimed. Since the dew or mold during the NTS storage. carrier can rarely establish this burden (d) The carrier claims that damage is of proof, denial due to an ‘‘act of God’’ due to ‘‘inherent vice.’’ Although the is generally not acceptable. The carrier carrier may allege that damage was cannot avoid liability if it has been due to ‘‘inherent vice,’’ the mere alle- negligent in exposing the goods to po- gation of ‘‘inherent vice’’ is insuffi- tential danger or if it failed to take cient to relieve the carrier of liability. reasonable steps to reduce the extent The burden of proof is on the carrier to of the injury once the danger was dis- establish that an ‘‘inherent vice’’ ex- covered. isted and that it was the sole cause of (h) The carrier contends that the claim- the damage claimed. Since the carrier ant’s repair estimate is excessive and that can rarely establish this burden of its own repair firm can do the job cheaper. proof, denial due to ‘‘inherent vice’’ is A claimant has the right to select a re- seldom acceptable. pair firm provided the cost is reason- (e) The carrier contends that it was de- able and not in excess of the item’s nied the right to inspect. Often a carrier value. The carrier is liable for the rea- will state that it made several at- sonable cost of repairing damaged mer- tempts to make an inspection, but the chandise that includes labor, material, shipper failed to keep the appointment. overhead, and other incidental ex- If such a case exists, the proper proce- penses incurred in reconditioning or dure for the carrier to follow is to con- putting the goods in salable condition. tact the claims office for assistance in If the carrier did not provide the accomplishing the inspection within a claims office with an acceptable, lower timely manner. A carrier’s efforts to estimate to use in adjudicating the obtain the inspection should be docu- claim, and if the claimant’s estimate is mented in the file by claims personnel. reasonable, then the carrier is liable Lack of an inspection alone, however, for the amount paid the claimant.
425
VerDate 25
(i) The carrier contends that liability DPM shipments in which the origin should have been predicated on the and/or destination contractor is deter- agreed weight of a sofa and not a hide-a- mined to be liable. When the contrac- bed. This argument only applies when tor fails to reply to a demand within carrier liability is based on weight. At 120 days or fails to make an acceptable the time the inventory is prepared, the offer, the file should be forwarded to carrier’s driver must establish whether the local contracting office with a re- a sofa is merely a sofa, or one that con- quest for offset action. verts into a bed. Failure to properly (c) Unjustified denials and inadequate identify the item on the inventory does settlement offers by carrier or contractor— not relieve the carrier of liability for (1) GBL carriers. If a GBL carrier or in- the greater weight of a sofa bed. surer has refused to acknowledge or re- (j) The carrier argues that it is not re- spond to a demand within a reasonable sponsible for warpage, rust, etc., due to time (usually 30 days), if the claims in- climatic changes. This argument does vestigating officer considers a valid not relieve a carrier of liability unless claim to have been denied or not ade- the carrier offers substantial evidence quate settlement offered, or if settle- to show that the damages resulted ment has been delayed beyond 120 days solely from unusual circumstances be- (see § 751.32(a)), the claim shall be for- yond its control, as with an ‘‘act of warded to the NLSC activity serving God,’’ or that it occurred while the the geographical location recommend- property was in the hands of another ing that set-off action be taken against contractor, as reflected upon a valid the carrier or contractor. The 120-day NTS exception sheet. The burden of period begins to run on the date initial proof is on the carrier to establish that demand is made on the carrier. The the damage was not due to its neg- NLSC activity shall review the file and ligence and that circumstances beyond if the carrier liability is correctly com- its control were the sole cause of the puted, forward a copy of the GBL, cop- loss. Because the carrier can rarely es- ies of the DD Forms 1843 and 1844, tablish this, denial due to ‘‘climatic SCAC code, and final demand on car- changes’’ is rarely acceptable. rier to the Commanding Officer, Naval § 751.32 Forwarding claims files for Material Transportation Office, Code offset action. 023, Bldg. Z–133–5, Naval Station, Nor- folk, VA 23511 directing set-off action (a) General. Claim files are forwarded against the carrier or contractor. with a recommendation for offset ac- (2) Nontemporary warehousemen. If a tion when 120 days have passed since a demand and a response has not been re- warehouseman or insurer has refused ceived from the carrier or contractor. to acknowledge or respond to a claim Files are also forwarded for offset ac- within a reasonable time, if the claims tion when an impasse is reached. An investigating officer considers a valid impasse occurs when legitimate efforts claim to have been denied or no ade- to collect the fully justified amount quate settlement offered, or if settle- demanded have reached a standstill ment has been delayed beyond 120 days, and the carrier has no valid basis for the claim shall be referred to the NLSC denial. Prior to forwarding files for off- activity serving the geographic loca- set action, claims personnel must en- tion recommending set-off action be sure that timely notice has been given, taken against the contractor. The 120- that all necessary documents are in- day time period begins to run on the cluded, and that the demand and any date the initial demand was made. The correspondence were mailed to the NLSC activity shall review the file and proper carrier or contractor at its cor- if the warehouseman’s liability is cor- rect address. When applicable, claims rectly computed, forward the file to personnel must also ensure that an un- the appropriate MTMC Regional Stor- earned freight packet is included. age Management Office for set-off. (b) Claim files forward to local contract- ing offices. Claims forwarded to local § 751.33 Unearned freight packet. contracting offices for offset action in- (a) Preparation. An unearned freight clude claims involving local moves and packet should be prepared when the
426
VerDate 25
loss or destruction of an item in ship- Household Goods Loss and Damage ment is attributable to a GBL carrier. Claims. Other commands dealing with Unearned freight packets should be ad- carrier recoveries should get a copy of dressed to the carrier, and not to the the manual from the NLSC activity agents of GBL carriers, NTS contrac- servicing the local area. tors, or other contract movers. An un- earned freight packet is required when § 751.35 Forms and instructions. a mobile home is lost or completely de- Copies of all of the forms and instruc- stroyed. An unearned freight packet in- tions discussed in this part may be ob- cludes: tained if needed, from the Commanding (1) A Request For Deduction of Un- Officer, Naval Publications and Forms earned Freight Charges; Center, 5801 Tabor Avenue, Philadel- (2) A copy of DD Form 1843; phia, PA 19120. (3) A copy of DD Form 1844; and (4) A copy of the GBL. PART 752—ADMIRALTY CLAIMS (b) Dispatch. The unearned freight packet is not dispatched to the Sec. NAVMTO, Norfolk until the carrier has 752.1 Scope. paid its agreed liability or when offset 752.2 Organization. has been accomplished. 752.3 Claims against the Navy. 752.4 Affirmative claims. § 751.34 GAO appeals. 752.5 Salvage. (a) General. Sections 1 through 12 and AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5013, 5148, 52 through 65 of Title 4, GAO Manual, and 7621–7623; 32 CFR 700.206 and 700–1202. Policy and Procedures Manual for § 752.1 Scope. Guidance of Federal Agencies, and 4 CFR parts 30–32 set forth procedures for This part applies to admiralty-tort carriers to appeal setoff action. Before claims. These include claims against a carrier can appeal a setoff action to the United States for damage caused GAO, the command requesting setoff by a vessel in the naval service or by action must make an administrative other property under the jurisdiction report to GAO. of the Navy, or damage caused by a (b) Procedures for appeals. (1) The car- maritime tort committed by an agent rier must request appeal from the com- or employee of the Navy, and affirma- mand requesting setoff action and re- tive claims by the United States for quest a GAO review. damage caused by a vessel or floating (2) The command requesting setoff object to Navy property. action will review the appeal and if it [39 FR 9962, Mar. 15, 1974 is determined the setoff action was ap- propriate, will do an administrative re- § 752.2 Organization. port and notify the carrier when this (a) Administrative authority of the Sec- has been accomplished. retary of the Navy. The Secretary of the (3) The administrative report and Navy has administrative authority for complete claims file will be forwarded settlement and direct payment where to the NLSC activity serving the geo- the amount paid does not exceed graphic location for review prior to for- $1,000,000 and where the matter is not warding to GAO. in litigation, of claims for damage (4) The complete claims package, in- caused by naval vessels or by other cluding all correspondence with the property under the jurisdiction of the carrier, will then be forwarded to GAO. Navy, or damage caused by a maritime (c) The administrative report and en- tort committed by an agent or em- closures must support the setoff ac- ployee of the Navy, and for towage or tion. salvage services rendered to naval ves- (d) GAO Manual. All NLSC activities sels (10 U.S.C. 7622 (1982)). The Sec- have been provided a copy of a manual retary also has authority to settle af- published by the Claims Group General firmative admiralty claims for damage Government Division, U.S. General Ac- caused by a vessel or floating object to counting Office entitled Procedures of property under the jurisdiction of the the U.S. General Accounting Office for Navy (10 U.S.C. 7623 (1982)).
427
VerDate 25
(b) Admiralty Division of the Office of nature which arise out of these oper- the Judge Advocate General. The Navy’s ations. These include claims for cargo admiralty-tort claims are processed damage, charter hire, redelivery, gen- and adjudicated in the Admiralty Divi- eral average, and claims arising under sion of the Office of the Judge Advo- MSC ship-repair contracts. cate General. All correspondence with (f) Damage caused by Navy contract the Admiralty Division should be ad- stevedores. Office of Counsel, Naval dressed to the Office of the Judge Ad- Supply Systems Command, has cog- vocate General (Code 31), Navy Depart- nizance of admiralty claims for damage ment, 200 Stovall Street, Alexandria, caused by Navy contract stevedores. VA 22332–2400. Under these stevedore contracts, the (c) Mission and policy. The primary stevedoring companies are responsible mission of the Admiralty Division is to for negligent acts of their employees effect prompt and equitable settle- which result in vessel damage. It is im- ments of admiralty claims, both portant that the extent of any such against and in favor of the United damage be accurately determined and States. The settlement procedure has promptly reported to the contracting evolved to eliminate the expenses and officer having cognizance of the par- delays arising out of litigation and to ticular stevedore contract involved. obtain results advantageous to the fi- (g) Resolving conflicts. Admiralty-tort nancial interests of the United States. claims, such as collision, personal-in- Where settlements cannot be made, jury, and death claims, are dealt with litigation ensues in the Federal Courts. by the Admiralty Division, irrespective The final test of whether a settlement of whether an MSC vessel or other is justified is the probable result of naval vessel is involved. Whether any litigation. Settlements are therefore particular claim is to be handled by considered and determined by the prob- JAG or by MSC, therefore, is deter- able results of litigation. The policy of mined by the nature of the claim. the Navy is to effect fair and prompt Cases may arise which could be han- settlements of admiralty claims wher- dled by either office. If doubt exists, ever legal liability exists. such matters should be reported both (d) Admiralty-tort claims. As indicated to JAG and to MSC. An agreement will above, the Admiralty Division pri- then be reached between the Admiralty marily handles admiralty-tort claims. Division and the Office of Counsel, These are claims for damage caused by MSC, as to how the incident should be vessels in the naval service or by other handled. property under the jurisdiction of the Navy, or damage caused by a maritime [39 FR 9962, Mar. 15, 1974, as amended at 55 tort committed by an agent or em- FR 12173, Apr. 2, 1990] ployee of the Navy, and claims for damage caused by a privately owned § 752.3 Claims against the Navy. vessel to a vessel or property of the (a) Settlement authority. 10 U.S.C. 7622 Navy (affirmative claims). The Admi- (1982) provides settlement authority for ralty Division also handles claims for ‘‘(1) Damage caused by a vessel in the towage and salvage services rendered naval service or by other property to a vessel in the naval service. under the jurisdiction of the Depart- (e) Admiralty-contract claims. Admi- ment of the Navy; (2) compensation for ralty-contract claims arising out of the towage or salvage service, including operations of the Military Sealift Com- contract salvage, rendered to a vessel mand (MSC) are handled by its Office in the naval service or to other prop- of Counsel. MSC is responsible for the erty of the Navy; or (3) damage caused procurement of vessels and space for by a maritime tort committed by any the commercial ocean transportation agent or employee of the Department of Department of Defense cargo, mail, of the Navy or by property under the and personnel. It is also responsible for jurisdiction of the Department of the the maintenance, repair, and alteration Navy.’’ The limit on the Secretary’s of Government-owned vessels assigned settlement authority is payment of to it. The Office of Counsel, MSC, deals $1,000,000. A claim which is settled for with the various claims of a contract an amount over $1,000,000 is certified to
428
VerDate 25
Congress for payment. Section 7622 pro- ceive the approval of the Secretary of vides that the Secretary may delegate the Navy or his designee, depending on his settlement authority in matters the amount involved, prior to the expi- where the amount to be paid is not ration of the two-year period. over $100,000. Under the Secretary’s (e) Matters in litigation. When suit is delegation, settlements not exceeding filed, the matter comes within the cog- $100,000 may be effected by the Judge nizance of the Department of Justice, Advocate General, Deputy Judge Advo- and the Secretary of the Navy is no cate General, Assistant Judge Advo- longer able to entertain a claim or to cate General (General Law), and the make administrative settlement. Deputy Assistant Judge Advocate Gen- [39 FR 9962, Mar. 15, 1974, as amended at 55 eral (Admiralty). Authority has also FR 12173, Apr. 2, 1990] been delegated to Deputy Commander in Chief, U.S. Naval Forces, Europe, § 752.4 Affirmative claims. and to Commander Sixth Fleet, to pay admiralty claims against the Navy not (a) Settlement authority. The Navy has exceeding $10,000, and to Commander the same authority to settle affirma- Fleet Air, Caribbean, for damage to tive admiralty claims as it does claims fishing equipment arising in Culebra- against the Navy. The statute confer- Vieques waters, not to exceed $3,000. ring this authorization is codified in 10 (b) Settlement is final. The legislation U.S.C. 7623 (1982), and is the reciprocal specifically authorizes the Secretary to of 10 U.S.C. 7622 (1982) referred to in settle, compromise, and pay claims. § 752.3. The settlement, upon acceptance of (b) Scope. 10 U.S.C. 7623 is a tort payment by the claimant, is final and claims-settlement statute. It is not conclusive for all purposes. limited to affirmative claims arising (c) Settlement procedures. Where the out of collision, but embraces all in- amount paid is over $100,000, after stances of damage caused by a vessel or agreement is reached with counsel or floating object to property of the claimants, the procedure is to prepare United States under the jurisdiction of a settlement recommendation for the the Department of the Navy. Perhaps approval of the Secretary of the Navy. the most frequent instance is where a When settlement has been approved, privately owned vessel damages a Navy the voucher required for effecting pay- pier or shore structure. To eliminate ment is prepared. The settlement any issue of whether the damaging in- check is then exchanged, in keeping strumentality was a vessel, the words with the commercial practice, for an ‘‘or floating object’’ were included. executed release. In some situations, (c) Statute of limitation. The United where the exchange of documents is States is subject to a three-year stat- impracticable, a claimant is requested ute of limitation when it asserts an af- to forward the executed release by firmative claim for money damages mail, on the understanding that the re- grounded in tort. This limitation is lease does not become effective until subject to the usual exclusions, such as the check is received in payment. inability to prosecute due to war, un- Claims settled under 10 U.S.C. 7622 are availability of the ‘‘res’’ or defendant, paid out of annual Department of De- and certain exemptions from legal fense appropriations. process (28 U.S.C. 2415, 2416 (1982)). (d) Limitation period. The Secretary’s (d) Litigation. 10 U.S.C. 7623 does not settlement authorization is subject to apply to any claim where suit is filed. a two-year limitation. This limitation If the Admiralty Division is unable to is not extended by the filing of claim effect settlement, the matter is re- nor by negotiations or correspondence. ferred to the Department of Justice for A settlement agreement must be the filing of a complaint against the of- reached before the end of the two-year fending party. Thereafter, as in the period. If settlement is not accom- case of adverse litigated claims, the plished, then the claimant must file Navy has no further authority to effect suit under the appropriate statute to settlement. avoid the limitation bar. The agree- [39 FR 9962, Mar. 15, 1974, as amended at 55 ment reached in negotiations must re- FR 12174, Apr. 2, 1990]
429
VerDate 25
§ 752.5 Salvage. 755.7 Action where offenders are members of different commands. (a) Scope. This section relates to sal- 755.8 Reconsideration and appeal. vage claims against or by the Navy for 755.9 Effect of court-martial proceedings. compensation for towage and salvage services, including contract salvage, AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 939, 5013, rendered to a vessel in the naval serv- and5148; E.O. 11476, as reported in 3 CFR, 1969 Comp., p. 132; 32 CFR 700.206 and 700.1202. ice or to other property under the ju- risdiction of the Department of the SOURCE: 56 FR 42232, Aug. 27, 1991, unless Navy, or for salvage services rendered otherwise noted. by the Department of the Navy. Suits NOTE 1: This part 755 is chapter IV of the for salvage may be maintained under Manual of the Judge Advocate General of the the Public Vessels Act, and salvage Navy. claims are within the Secretary of the Navy’s administrative-settlement au- NOTE 2: The Uniform Code of Military Jus- thority under 10 U.S.C. 7622. Salvage tice (10 U.S.C. 801-940) is referred to in this claims against the Navy are reported part 755 as the ‘‘UCMJ’’. The Manual for to and processed by the Judge Advo- Courts-Martial, United States, 1984 (E.O. cate General (Admiralty Division). 12473 of August 1, 1984) is referred to in this part 755 as ‘‘MCM 1984’’. Both claims and suits for salvage against the United States are subject to the two-year limitation of the Pub- § 755.1 Statutory authority. lic Vessels Act and the Navy’s settle- Article 139, UCMJ, redress of injuries ment authority. to property, is the basis for this chap- (b) Affirmative claims. Authorization ter. for the settlement of affirmative sal- vage claims is contained in 10 U.S.C. § 755.2 Scope. 7365 (1982). Assertion of such claims is This chapter provides for assess- handled in the first instance by the As- ments against the pay of members of sistant Supervisor of Salvage (Admi- the naval service in satisfaction of ralty), USN, Naval Sea Systems Com- claims for property damage caused mand (SEA OOCL), Washington, DC 20362–5101. Salvage claims are referred under certain circumstances. Claims to the Admiralty Division only if the for damage, loss, or destruction of pri- Assistant Supervisor of Salvage (Admi- vately owned property caused by a per- ralty) is unsuccessful in making collec- son or persons in the naval service, are tion. Any money received in settle- payable under Article 139, UCMJ, only ment of affirmative salvage claims is if such damage, loss, or destruction is credited to appropriations for main- caused by riotous conduct, willful con- taining salvage facilities by the Navy, duct, or acts showing such reckless or pursuant to 10 U.S.C. 7367 (1982). wanton disregard of the property rights of others that willful damage or de- [39 FR 9962, Mar. 15, 1974, as amended at 41 struction is implied. Acts of the type FR 26866, June 30, 1976; 55 FR 12174, Apr. 2, punishable under Article 109, UCMJ, 1990] are cognizable under Article 139, UCMJ. Charges against pay under PART 755—CLAIMS FOR INJURIES these regulations shall be made only TO PROPERTY UNDER ARTICLE against the pay of persons shown to 139 OF THE UNIFORM CODE OF have been principal offenders or acces- MILITARY JUSTICE sories.
Sec. § 755.3 Claims not cognizable. 755.1 Statutory authority. The following claims are not cog- 755.2 Scope. nizable under this chapter. 755.3 Claims not cognizable. (a) Claims resulting from simple neg- 755.4 Limitation on claims. ligence. 755.5 Complaint by the injured party and in- vestigation. (b) Claims of subrogees. 755.6 Action where offenders are members of (c) Claims for personal injury or one command. death.
430
VerDate 25
(d) Claims arising from acts or omis- supporting materials shall be for- sions within the scope of employment warded to the Chief of Naval Personnel of the offender. or the Commandant of the Marine (e) Claims for reimbursement for Corps, as appropriate, for action. damage, loss, or destruction of Govern- (c) The investigation shall inquire ment property. into the circumstances surrounding the claim, gather all relevant information § 755.4 Limitation on claims. about the matter (answering the who, (a) Time limitations. A claim must be what, where, when, why, and how ques- submitted within 90 days of the inci- tions) and make findings and opinions, dent giving rise to it. as appropriate, about the validity of (b) Acts of property owner. When the the claim under Article 139, UCMJ, and acts or omissions of the property these regulations. The investigation owner, his lessee, or agent were a prox- shall determine the amount of damage imate contributing factor to the loss or suffered by the property owner. damage of the property, assessments (d) The investigation shall make rec- will not be made against members of ommendations about the amount to be the naval service in excess of the assessed against the pay of the respon- amount for which they are found to be sible parties. If more than one person is directly responsible, i.e., comparative found responsible, recommendations responsibility for the loss will be the shall be made about the assessments standard for determining financial re- against all individuals. sponsibility. (c) Only direct damages considered. As- § 755.6 Action where offenders are sessment will be made only for direct members of one command. physical damages to the property. Indi- (a) Action by commanding officer. The rect, remote, or inconsequential dam- age will not be considered. commanding officer shall ensure the alleged offenders are shown the inves- § 755.5 Complaint by the injured party tigative report and are advised they and investigation. have 20 days within which to submit a (a) A claim shall contain a statement statement or additional information on setting forth the amount of the claim, the incident. If the member declines to the facts and circumstances surround- submit information, he shall so state ing the claim and any other informa- in writing within the 20 day period. tion that will assist in the investiga- The commanding officer shall review tion and resolution of the matter. the investigation and determine wheth- When there is more than one complaint er the claim is properly within the pro- resulting from a single incident, each visions of Article 139, UCMJ, and these claimant must file a claim separately regulations, and whether the facts indi- and individually. The claim shall be cate responsibility for the damage on personally signed by the claimant or members of the command. If the com- his duly authorized representative or manding officer finds the claim pay- agent. able under these regulations, he shall (b) Where the claim alleges mis- fix the amount to be assessed against conduct by members of the command, a the offenders. commanding officer to whom the claim (b) Review. If the commanding officer is submitted shall convene an inves- has authority to convene a general tigation under this Manual to inquire court-martial, no further review of the into the matter. Where a complaint is investigation is required as to the re- received by a commanding officer to dress of injuries to property. If the whose command the alleged offenders commanding officer does not have gen- do not report, he shall forward the eral court-martial convening author- claim and other pertinent information ity, the investigation and the com- about the matter to the member’s com- manding officer’s action thereon shall manding officer who will convene an be forwarded to the officer exercising investigation into the incident. Where general court-martial jurisdiction the command of the alleged offenders (OEGCM) over the command for review cannot be determined, the claim and and action on the claim. That officer’s
431
VerDate 25
action on the claim shall be commu- retary of the Navy (Judge Advocate nicated to the commanding officer who General) who will take action in the will take action consistent with the de- matter. Commanding officers, in such a termination. situation, are not to make charges (c) Charge against pay. Where the against the pay of their members until amount does not exceed $5,000.00, the directed by the Secretary of the Navy amount ordered by the commanding of- (Judge Advocate General). ficer shall, as provided in the Navy Comptroller Manual, be charged § 755.8 Reconsideration and appeal. against the pay of the offenders and (a) . The OEGCM may, the amounts so collected will be paid Reconsideration to the claimant. Where the amount ex- upon a receipt of a request for recon- ceeds $5,000.00, the claim, the investiga- sideration by either the claimant or a tion, and the commanding officer’s rec- member who has been assessed pecu- ommendation shall be forwarded for re- niary liability, reopen the investiga- view prior to checkage to Head- tion or take any other action he be- quarters, U.S. Marine Corps (Code lieves is necessary in the interests of JAR) or the Judge Advocate General, justice. If the OEGCM contemplates as appropriate. The amount charged in acting favorably on the request, he will any single month against the pay of of- provide all individuals interested in fenders shall not exceed one-half of the claim with notice and an oppor- basic pay, as defined in paragraph tunity to respond. The basis for any 126h(2), Manual for Courts-Martial. The change will be noted in the OEGCM’s action of the commanding officer in or- decision. dering the assessment shall be conclu- (b) Appeal. In claims involving sive on any disbursing officer for pay- $5,000.00 or less, a claimant or member ment to the claimant of the damages who has been assessed pecuniary liabil- assessed, approved, charged, and col- ity may appeal the decision to the lected. OEGCM. An appeal must be submitted § 755.7 Action where offenders are within 5 days of the receipt of the members of different commands. OEGCM’s decision. Appeals will be for- warded, via the OEGCM, to the Judge (a) Action by common superior. The in- vestigative report shall be forwarded to Advocate General for review and final the common superior exercising gen- action. In the event of an appeal, the eral court-martial jurisdiction over the imposition of the OEGCM’s decision commands to which the alleged offend- will be held in abeyance pending the ers are assigned. That officer shall en- final action by JAG. If it appears that sure the alleged offenders are shown good cause exists that would make it the investigative report and permitted impracticable for an appeal to be sub- to comment on it, should they desire, mitted within 5 days, the OEGCM may, before action is taken on the claim. in his discretion, grant an extension of That officer shall review the investiga- time, as appropriate. His decision on tion and determine whether the claim extensions is final and nonappealable. is properly within the provisions of Ar- ticle 139, UCMJ, and these regulations, § 755.9 Effect of court-martial proceed- and whether the facts indicate respon- ings. sibility for the damage on members of Administrative action under these his command. If the claim is found pay- regulations is separate and distinct able under these regulations, he shall from and is not affected by any dis- fix the amount to be assessed against ciplinary action against the offender. the offenders and direct the appro- The two proceedings are independent. priate commanding officers to take ac- Acquittal or conviction of the alleged tion accordingly. offender by court-martial is evidence (b) Forwarding to SECNAV (JAG). for the administrative action, but is Where it is not practical or possible to carry out the procedure in § 755.7(a) of not determinative on the issue of re- this section, the investigation or inves- sponsibility for damages under these tigations shall be forwarded to the Sec- regulations.
432
VerDate 25
Part 756—NONAPPROPRIATED- mander, Naval Supply Systems Com- FUND CLAIMS REGULATIONS mand determine whether NAFI’s with- in their cognizance shall carry liability Sec. insurance or become self-insurers, in 756.1 Scope. whole or in part. 756.2 Definitions. (b) The Marine Corps requires manda- 756.3 Notification. tory participation in the Morale, Wel- 756.4 Responsibility. 756.5 Investigation. fare and Recreation (MWR) Composite 756.6 Negotiation. Insurance Program by the following 756.7 Payment. operations: MWR operations and retail 756.8 Denial. services, food and hospitality, recre- 756.9 Claims by employees. ation; and special NAFI activities in- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 939, 5013, cluding flying clubs, rod and gun clubs, and 5148; E.O. 11476 (3 CFR, 1969 Comp., p. Interservice Rifle Fund, Marine Corps 132); 32 CFR 700.206 and 700.1202. Marathon and Dependent Cafeteria SOURCE: 57 FR 4736, Feb. 7, 1992, unless oth- Fund. The following organizations may erwise noted. also participate in the MWR Composite § 756.1 Scope. Insurance Program, if desired: Child welfare centers, billeting funds, chapel This part explains how to settle funds, and civilian welfare funds. claims for and against the United States for property damage, personal (c) When the operations of NAFI’s re- injury, or death arising out of the oper- sult in property damage or personal in- ation of nonappropriated-fund instru- jury, the insurance carrier, if any, mentalities. should be given immediate written no- tification. Notification should not be § 756.2 Definitions. postponed until a claim is filed. When (a) Nonappropriated-fund instrumental- the activity is self-insured, the self-in- ity (NAFI). An instrumentality of the surance fund shall be notified of the po- Federal Government established to tential liability by the activity. generate and administer non- appropriated-funds for programs and § 756.4 Responsibility. services contributing to the mental The primary responsibility for the and physical well-being of Department negotiation and settlement of claims of Defense personnel and their depend- resulting from nonappropriated-fund ents. A NAFI is not incorporated under activities is normally with the NAFI the laws of any State and enjoys the and its insurer. NAFI’s, however, are privileges and immunities of the Fed- Federal agencies within the meaning of eral Government. the Federal Tort Claims Act if charged (b) Nonappropriated-funds. Funds gen- erated through the use and patronage with an essential function of the De- of NAFI’s, not including funds appro- partment of the Navy and if the degree priated by Congress. of control and supervision by the Navy (c) Employees of NAFI. Civilian per- is more than casual or perfunctory. sonnel employed by NAFI’s whose sala- Compare United States v. Holcombe, 277 ries are paid from nonappropriated- F.2d 143 (4th Cir. 1960) and Scott v. funds. Also, military personnel work- United States, 226 F. Supp. 846, (D. Ga. ing part-time at NAFI’s when com- 1963). Consequently, to the extent sov- pensated from nonappropriated-funds. ereign immunity is waived by the Fed- eral Tort Claims Act, 28 U.S.C. 1346(b), § 756.3 Notification. 2671–2672, 2674–2680, the United States (a) Some NAFI’s, such as flying remains ultimately liable for payment clubs, carry private commercial insur- of NAFI claims. ance to protect them from claims for property damage and personal injury § 756.5 Investigation. attributable to their operations. The Claims arising out of the operation of Commandant of the Marine Corps, the NAFI’s, in and outside the United Chief of Naval Personnel, and the Com-
433
VerDate 25
States, shall be investigated in accord- that can be settled for $1000.00 or less, ance with the procedures for inves- may be adjudicated by the command- tigating similar claims against appro- ing officer of the activity concerned or priated fund activities in order to pro- designee. The claim shall be paid out of tect the residual liability of the United funds available to the commanding of- States. All claims should be submitted ficer. to the command having cognizance (b) Claims that cannot be settled for less over the NAFI involved. than $1000.00. A claim negotiated by the § 756.6 Negotiation. Navy, not covered by insurance, that cannot be settled for less than $1000.00, (a) General. Claims from NAFI’s shall be forwarded to the appropriate should be processed primarily through nonappropriated-fund headquarters NAFI claims procedures, using as command for payment from its non- guidelines the regulations and statutes appropriated-funds. applicable to similar appropriated fund activity claims. (c) When payment is possible under an- (b) When the NAFI is insured. When a other statute. In some cases neither the NAFI is insured, the insurer or the con- NAFI nor its insurer may be legally re- tracted third-party claims adminis- sponsible. In those instances, when trator (TPA) will normally conduct ne- there is no negligence, and payment is gotiations with claimants. The appro- authorized under some other statute, priate naval adjudicating authority as such as the Foreign Claims Act, 10 shown in 32 CFR 750.34(c)(2)(ii) has the U.S.C. 2734–2736, the claim may be con- responsibility of monitoring the nego- sidered for payment from appropriated tiations conducted by the insurer or funds or may be referred to the Judge TPA. Monitoring is normally limited Advocate General for appropriate ac- to ascertaining someone has been as- tion. signed to negotiate, to obtain periodic (d) Other claims. A NAFI’s private in- status reports, and to close files on set- surance policy is usually not available tled claims. Any dissatisfaction with to cover losses which result from some the insurer’s or TPA’s handling of the act or omission of a mere participant negotiations should be referred di- in a nonappropriated-fund activity. In rectly to the Judge Advocate General the event the NAFI declines to pay the for appropriate action. Under special claim, the file shall be forwarded to the circumstances, even when there is an Judge Advocate General for determina- insurer or TPA, the appropriate naval tion. adjudicating authority may conduct negotiations, provided the command § 756.8 Denial. involved and the insurer agree to it. When an appropriate settlement is ne- Claims resulting from non- gotiated by the Navy, the rec- appropriated-fund activities may be de- ommended award will be forwarded to nied only by the appropriate naval ad- the insurer or TPA for payment. judicating authority. Such a denial is (c) When the NAFI is not insured. necessary to begin the 6-month limita- When there is no private, commercial tion on filing suit against the United insurer and the NAFI has made no States for claims filed under the Fed- independent arrangements for negotia- eral Tort Claims Act. Denial of a claim tions, the appropriate Navy adjudicat- shall be in writing and in accordance ing authority is responsible for con- with subparts A or B of part 750 of this ducting negotiations. When an appro- chapter, as appropriate. The appro- priate settlement is negotiated by the priate naval adjudicating authority Navy, the recommended award will be should not deny claims which have ini- forwarded to the NAFI for payment tially been processed and negotiated by from nonappropriated-funds. a nonappropriated-fund activity, its in- surer or TPA until the activity or its § 756.7 Payment. insurer has clearly stated in writing (a) Claims that can be settled for less that it does not intend to pay the than $1000.00. A claim not covered by claim and has elected to defend in insurance (or not paid by the insurer), court.
434
VerDate 25
§ 756.9 Claims by employees. 757.17 Statute of limitations. 757.18 Asserting the claim. (a) Personal injury or death of citizens 757.19 Waiver and compromise. or permanent residents of the United 757.20 Receipt and release. States employed anywhere, or foreign na- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 939, 5013, tionals employed within the United and 5148; E.O. 11476, 3 CFR, 1969 Comp., p. 132; States. Compensation is provided by the 32 CFR 700.206 and 700.1202. Longshore and Harbor Workers’ Com- SOURCE: 57 FR 5072, Feb. 12, 1992, unless pensation Act (33 U.S.C. 901–950) for otherwise noted. employees of NAFI’s who have suffered injury or death arising out of and in the course of their employment (5 Subpart A—Property Damage U.S.C. 8171). That Act is the exclusive Claims basis for Government liability for inju- § 757.1 Scope of subpart A. ries or deaths that are covered (5 U.S.C. 8173). A claim should first be Subpart A describes how to assert, made under that Act if there is a sub- administer, and collect claims for dam- stantial possibility the injury or death age to or loss or destruction of Govern- is covered. ment property through negligence or (b) Personal injury or death of foreign wrongful acts. nationals employed outside of the con- § 757.2 Statutory authority. tinental United States. Employees who are not citizens or permanent resi- (a) General. With the exception of dents, and who are employed outside MCRA claims, all affirmative claims the continental United States, are pro- for money or property in favor of the tected by private insurance of the United States shall be processed in ac- NAFI or by other arrangements (5 cordance with the Federal Claims Col- U.S.C. 8172). When a nonappropriated- lection Act (31 U.S.C. 3711). Depart- 1 fund activity has neglected to obtain ment of Defense Directive 5515.11 of 10 insurance coverage or to make other December 1966 delegates to the Sec- arrangements, the matter shall be retary of the Navy, and designees, the processed as a Foreign Claims Act or a authority granted to the Secretary of Military Claims Act claim if appro- Defense under the Federal Claims Col- priate, and any award will be paid from lection Act. nonappropriated-funds. (b) Statute of limitations. There is a 3- year statute of limitations on affirma- tive Government tort claims pursuant PART 757—AFFIRMATIVE CLAIMS to 28 U.S.C. 2415(b). REGULATIONS § 757.3 Regulatory authority. Subpart A—Property Damage Claims The regulations published in 4 CFR Sec. chapter II control the collection and 757.1 Scope of subpart A. settlement of affirmative claims. This 757.2 Statutory authority. section supplements the material con- 757.3 Regulatory authority. tained in those regulations. Where this 757.4 Claims that may be collected. section conflicts with the materials 757.5 Assertion of claims and collection pro- and procedure published in 4 CFR chap- cedures. ter II, the latter controls. 757.6 Waiver, compromise, and referral of claims. § 757.4 Claims that may be collected. 757.7–757.10 [Reserved] (a) Against responsible third parties for Subpart B—Medical Care Recovery Act damage to government property, or the (MCRA) Claims property of nonappropriated-fund activi- ties. It should be noted, however, that 757.11 Scope of subpart B. 757.12 Statutory authority. as a general rule, the Government does 757.13 Responsibility for MCRA action. 757.14 Claims asserted. 1 Copies may be obtained if needed, from 757.15 Claims not asserted. the Commanding Officer, U.S. Naval Publica- 757.16 Claims asserted only with JAG ap- tions and Forms Center, 5801 Tabor Avenue, proval. Philadelphia, PA 19120.
435
VerDate 25
not seek payment from action on affirmative claims of servicemembers and Government em- $20,000.00 or less. ployees for damages caused by their (d) Determining liability. Liability simple negligence. Exceptions to this must be determined in accordance with general policy will be made when the the law of the place in which the dam- incident involves aggravating cir- age occurred, including the applicable cumstances. traffic laws, elements of tort, and pos- (b) For medical costs from third party sible defenses. payers in accordance with 10 U.S.C. 1095. (e) Assertion of a claim. (1) Assertion These claims are asserted and collected of the claim is accomplished by mail- by the medical treatment facilities ing to the tortfeasor a ‘‘Notice of under the coordination of benefits pro- Claim.’’ The notice is to be mailed cer- gram. tified mail, return receipt requested, (c) For money paid or reimbursed by the and should include the following infor- government for damage to a rental car in mation: accordance with the Joint Federal Travel (i) Reference to the statutory right Regulations (volume 1, paragraph U 3415– to collect; C and volume 2, paragraph C 2101–2). (ii) A demand for payment or restora- Collection action shall be taken tion; against third parties liable in tort. Col- (iii) A description of damage; lection action shall not be taken (iv) The date and place of the inci- against Government personnel who dent; and rented the vehicle. (v) The name, phone number, and of- (d) Other claims. Any other claim for fice address of the claims personnel to money or property in favor of the contact. United States cognizable under the Federal Claims Collection Act not spe- (2) See also 4 CFR part 102. cifically listed above. (f) Full payment. When a responsible party or insurer tenders full payment § 757.5 Assertion of claims and collec- or a compromise settlement on a tion procedures. claim, the payment should be in the form of a check or money order made (a) General. The controlling proce- payable to the collection activity, such dures for administrative collection of as the ‘‘Commanding Officer, Naval claims are established in 4 CFR part Legal Service Office, (Name).’’ The 102. check or money order shall then be for- (b) Officials authorized to pursue warded to the disbursing officer serving The following officers are au- claims. the collecting activity for deposit in thorized to pursue and collect all af- accordance with the provisions of the firmative claims in favor of the United Navy Comptroller Manual. States: (g) Installment payments. See 4 CFR (1) The Judge Advocate General; the 102.11 for specific procedures. In gen- Deputy Judge Advocate General; any eral, if the debtor is financially unable Assistant Judge Advocate General; and to pay the debt in one lump sum, an in- the Deputy Assistant Judge Advocate stallment payment plan may be ar- General (Claims and Tort Litigation); ranged. Installment payments will be and required on a monthly basis and the (2) Commanding officers of Naval size of payment must bear a reasonable Legal Service Offices and applicable relation to the size of the debt and the Detachments, except Naval Legal Serv- debtor’s ability to pay. The install- ice Offices in countries where another ment agreements should specify pay- service has single service responsibility ments of such size and frequency to liq- in accordance with DOD Directive uidate the Government’s claim in not 2 5515.8. more than 3 years. Installment pay- (c) Dollar limitations. All of the offi- ments of less than $50.00 per month cers listed in § 757.5(b) are authorized to should be accepted only if justified on compromise and terminate collection the grounds of financial hardship or for some other reasonable cause. In all in- 2 See footnote 1 to § 757.2. stallment arrangements, a confession
436
VerDate 25
of judgment note setting out a repay- tion action on all claims of $20,000.00 or ment schedule should be executed. less. Collection action may be termi- (h) Damage to nonappropriated-fund nated for the convenience of the Gov- instrumentality (NAFI) property. Any ernment if the tortfeasor cannot be lo- amount collected for loss or damage to cated, is found to be judgment-proof, property of a NAFI shall be forwarded has denied liability, or has refused to to the headquarters of the non- respond to repeated correspondence appropriated-fund activity for deposit concerning legal liability involving a with that activity. In those situations small claim. A termination for the con- where the recovery involves damage to venience of the Government is made both NAFI-owned property and other after it is determined that the case Government property, e.g., destruction does not warrant litigation or that it is of an exchange building resulting in not cost-effective to pursue recovery damage to both the building and the exchange-owned property inside, recov- efforts. ery for the exchange-owned property (b) Claims over $100,000.00. Claims in shall be forwarded to the NAFI. Recov- excess of $100,000.00 may not be com- ery for building damage shall be depos- promised for less than the full amount ited in accordance with § 757.5(f) above. or collection action terminated with- (i) Damage to industrial-commercial out approval from the Department of property. When a loss or cost of repair Justice (DOJ). has been borne by an industrial-com- (c) Notification. The Judge Advocate mercial activity, payment shall be de- General shall be notified prior to all re- posited in the Navy Industrial Fund of quests made to the DOJ to com- the activity in accordance with the promise, terminate collection, or refer- provisions of the Navy Comptroller ral for further collection action or liti- Manual. When a claim is based on a gation. loss or damage sustained by such an (d) Litigation Reports. Litigation re- activity, a notation to this effect shall ports prepared in accordance with 4 be included in any claim file forwarded CFR part 103 shall be forwarded to the to the Judge Advocate General. DOJ along with any case file forwarded (j) Replacement in kind or repair. The for further collection action or litiga- responsible party, or insurer, may want tion as required by the Federal Claims to repair or replace in kind damaged Collections Standards. property. The commanding officer or officer in charge of the activity sus- §§ 757.7–757.10 [Reserved] taining the loss is authorized to accept repair or replacement if, in his discre- tion, it is considered to be in the best Subpart B—Medical Care interests of the United States. Recovery Act (MRCA) Claims (k) Release. The commanding officer or officer in charge is authorized to § 757.11 Scope of subpart B. execute a release of the claim when all Subpart B describes the assertion and repairs have been completed to the collection of claims for medical care Government’s satisfaction, and when under the Medical Care Recovery Act all repair bills have been paid. No prior (MCRA). The MCRA states that when approval from the Judge Advocate Gen- the Federal Government provides eral is required for this procedure. If treatment or pays for treatment of an repair or replacement is made, a nota- individual who is injured or suffers a tion shall be made in any investigation disease, the Government is authorized or claims file. to recover the reasonable value of that § 757.6 Waiver, compromise, and refer- treatment from any third party legally ral of claims. liable for the injury or disease. (a) Officials authorized to compromise § 757.12 Statutory authority. claims. The officers identified in § 757.5(b) may collect the full amount Medical Care Recovery Act, 42 U.S.C. on all claims, and may compromise, 2651–2653 (1982). execute releases or terminate collec-
437
VerDate 25
§ 757.13 Responsibility for MCRA ac- patient’s care is transferred to another tion. facility. A narrative summary should (a) JAG designees. (1) Primary respon- accompany the final report in all cases sibility for investigating, asserting, involving inpatient care. In addition, and collecting Department of the Navy the back side of NAVJAG Form 5890/12 (DON) MCRA claims and properly for- is completed as part of the final report warding MCRA claims to other Federal when the value of Federal Government departments or agencies rests with the care exceeds $1,000.00. following officers: (c) The Office of Medical and Dental (i) Commanding officers and officers Affairs (OMA). The office pays emer- in charge, Naval Legal Service Com- gency civilian medical expenses in- mand (NLSC) activities, in their areas curred by active duty members. This of geographic responsibility; office furnishes MCRA claims informa- (ii) Officer in charge, U.S. Sending tion to the NLSC activity or USSSO. State Office, Rome in his area of geo- The address is Bldg. 38H, U.S. Naval graphic responsibility. Training Center, Great Lakes, IL 60088– (2) JAG designees may assert and re- 5200. ceive full payment on any MCRA (d) Civilian Health and Medical Pro- claim. They may, however, agree to gram of the Uniformed Services compromise or waive only claims for (CHAMPUS) contractors. CHAMPUS $40,000.00 or less. Claims in excess of contractors forward reports of pay- $40,000.00 may be compromised or ments in injury cases to the appro- waived only with DOJ approval. Such priate NLSC activity. Responsible JAG claims will be forwarded to the Judge designees should, however, initiate reg- Advocate General in accordance with ular contact with contractors within § 757.6. See § 757.7 for further discussion their geographic area to ensure all rel- of waiver and compromise. evant cases have been reported. (b) Navy Medical Treatment Facilities (e) Department of Justice (DOJ). Only (MTF). (1) Naval MTF’s are responsible the DOJ may authorize compromise or for ensuring potential MCRA claims waiver of an MCRA claim in excess of are brought to the attention of the ap- $40,000.00; settle an MCRA claim which propriate NLSC activity or U.S. Send- was previously forwarded by the DON ing State Office (USSSO). to DOJ for action; or settle an MCRA (2) The MTF reports all potential claim in which the third party has filed MCRA cases by forwarding a copy of a suit against the United States or the the daily injury log entries and admis- injured person as a result of the inci- sions records to the cognizant NLSC dent which caused the injury. activity or USSSO within 7 days of treatment for which a third party may § 757.14 Claims asserted. be liable. The NLSC activity or USSSO makes the determination of liability. (a) General. The DON asserts MCRA (i) MTF computes the value of the claims when medical care is furnished care it provided on NAVJAG Form 5890/ to Navy and Marine Corps active duty 12. Rates used to compute this value personnel, retirees, or their depend- are published annually in the FEDERAL ents, and third-party tort liability for REGISTER by the Office of Management the injury or disease exists. Claims are and Budget. asserted when the injured party is (ii) Block 4 of NAVJAG Form 5890/12 treated in a military MTF or when the requires a statement from the patient DON is responsible for reimbursing a describing the circumstances of the in- non-Federal care provider. Claims for jury or disease. medical care furnished are also as- (iii) An ‘‘interim’’ report is prepared serted using alternate theories of re- for inpatients only. An interim report covery if the MCRA does not apply. See is prepared every 4 months until the § 757.14(e). patient is released, transferred or (b) Independent cause of action. The changed to an outpatient status. MCRA creates an independent cause of (iv) A ‘‘final’’ report is prepared for action for the United States. The Gov- all patients when inpatient and out- ernment can administratively assert patient treatment is completed or the and litigate MCRA claims in its own
438
VerDate 25
name and for its own benefit. Proce- policy. The ability of the Federal Gov- dural defenses, such as a failure of the ernment to recover as a third-party injured person to properly file and/or beneficiary has been upheld in some serve a complaint on the third party, states, while other states have taken that may prevent the injured person the contrary position. from recovering, do not prevent the (2) Recovery may also be possible United States from pursuing its own under State workers’ compensation action to recover the value of medical laws. Case law in this area is still treatment provided to the injured per- emerging, but in most jurisdictions, son. The right arises directly from the the United States stands in the posi- statute; the statutory reference to sub- tion of a lien claimant for services ren- rogation pertain only to one mode of dered. enforcement. In creating an independ- ent right in the Government, the Act § 757.15 Claims not asserted. prevents a release given by the injured In some cases, the MCRA or public person to a third party from affecting policy considerations limit the DON’s the Government’s claim. assertion of claims against apparent (c) Liable parties. MCRA claims may third-party tortfeasors. MCRA claims be asserted against individuals, cor- are not asserted against: porations, associations and non-Fed- (a) Federal Government agencies. eral Government agencies subject to Claims are not asserted against any de- the limitations described in § 757.15. partment, agency or instrumentality of (d) Reasonable value of medical care. the United States. ‘‘Agency or instru- The reasonable value of medical care mentality’’ includes self-insured, non- provided to an injured person is deter- appropriated-fund activities but does mined: not include private associations. (1) By using the rates set by the Of- (b) Injured servicemembers, dependents fice of Management and Budget and and employers of the United States. published in the FEDERAL REGISTER for Claims are not asserted directly care provided in Federal medical care against a servicemember, the depend- facilities; or ent of a servicemember, or an em- (2) By the actual amount paid by the ployee of the United States who is in- Federal Government to non-Federal jured as a result of his willful or neg- medical care providers. ligent acts. The United States does as- (e) Alternate Theories of Recovery. sert, however, against medical care and Often, recovery under the MCRA is not treatment insurance coverage the possible because no third-party tort li- member, employee, or dependent might ability exists. For example, if a mem- have. ber, retiree, or dependent is driving a (c) Employers of merchant seamen. vehicle and is injured in a single-car Claims are not asserted against the accident, there is no tortfeasor. State employer of a merchant seaman who law, including insurance, workers’ receives Federal medical care under 42 compensation, and uninsured motorist U.S.C. 249. coverage provisions, determines the (d) Department of Veterans Affairs care DON’s right to recover in situations for service-connected disability. Claims not covered by the MCRA. If, under the are not asserted for care provided to a law where the injury occurred, the in- veteran by the Department of Veterans jured party is entitled to compensation Affairs when the care is for a service- for medical care received, usually the connected disability. The United Federal Government may recover. The States will, however, claim for the rea- two most common alternate theories sonable value of care provided an indi- are described below. vidual before he is transferred to a De- (1) Recovery may be possible under partment of Veterans Affairs hospital. the injured party’s automobile insur- ance policy. In most cases, the Federal § 757.16 Claims asserted only with JAG Government should seek recovery as a approval. third-party beneficiary under the medi- The responsible NLSC activity or cal payments or the underinsured/unin- USSSO will investigate potential sured portion of the injured party’s MCRA claims against the following
439
VerDate 25
third parties and forward a copy of which will assert a resulting MCRA their claims file, along with rec- claim. ommendations on assertion, to the (i) Where Navy or Marine Corps mem- Judge Advocate General: bers, retirees, or their dependents re- (a) Certain Government contractors. ceive medical treatment from another JAG approval is required before assert- Federal agency or department, the ing an MCRA claim against a Federal DON will usually assert any MCRA Government contractor when the con- claim on behalf of the United States tract provides that the contractor will based on information provided by the be indemnified or held harmless by the treating agency or department. Federal Government for tort liability. (ii) Similarly, where a Navy MTF (b) Foreign Governments. JAG ap- provides care to personnel of another proval is required before asserting Federal agency or department, that MCRA claims against foreign govern- other agency or department will usu- ments, their political subdivisions, ally assert any claim on behalf of the Armed Forces members, or civilian em- United States. ployees. (3) If the claim is not one which the (c) U.S. personnel. JAG approval is re- DON should assert, the JAG designee quired before asserting MCRA claims will forward all available information against U.S. servicemembers, their de- to the appropriate department or agen- pendents and employees of the United cy. States, or their dependents for injury (4) If the claim is one which the DON to another person. should assert, the JAG designee will ensure an appropriate investigation § 757.17 Statute of limitations. into the circumstances underlying the (a) Federal. The United States, or the claim is initiated and will provide no- injured party on behalf of the United tice to the injured party and all third States, must file suit within 3 years parties who may be liable to the in- after an MCRA action accrues. 28 jured person and the United States U.S.C. 2415. Generally this is 3 years under the MCRA. from the date of initial Federal treat- (b) Investigating the claim. While there ment or Federal Government payment is no prescribed form or content for in- to a private care provider, whichever is vestigating these claims, the claims first. file will contain sufficient information (b) State. Some State statutes of lim- on which to base valuation, assertion, itations may also apply where recovery settlement, waiver, and/or compromise is based on authority such as workers’ decisions. Usually the file will contain: compensation statutes, no-fault insur- (1) Identification of each person in- ance statutes, no-fault medical pay- volved in the incident including name, ments, or uninsured motorist provi- address, occupation, and nature of in- sions of insurance contracts. volvement; (2) Police, social service, and other § 757.18 Asserting the claim. Federal, State and local agency reports (a) Initial action by JAG designee. on the incident; When advised of a potential MCRA (3) Completed copies of NAVJAG 3 claim, the JAG designee will determine Form 5890/12 or equivalent forms from the Federal agency or department re- other agencies and departments; sponsible for investigating and assert- (4) Inpatient summaries and out- ing the claim. patients records of treatment of the in- (1) When the DON has reimbursed a volved injury in non-Federal facilities; non-Federal provider for health care or (5) Documents reflecting Federal when CHAMPUS has made payment for payment for non-Federal treatment of a Navy health care beneficiary, the the injured person; DON will assert any resulting MCRA (6) Calculations of the reasonable claim. value of the Government’s MCRA (2) When care is provided in a Federal claim; treatment facility, the status of the in- jured person will determine the agency 3 See footnote 3 to § 757.2.
440
VerDate 25
(7) Itemized repair bills or estimates activity or USSSO receives a similar of repair of damaged Federal Govern- request from another command, unit or ment property; activity within the DOD, every effort (8) Where an identified third-party should be made to honor the request. tortfeasor is a uniformed Assistance will normally be provided servicemember or a U.S. employee, in- without reimbursement from the re- formation and findings concerning that questing service. person’s duty or scope of employment (e) Notice of claim. (1) The JAG des- status at the time of the incident giv- ignee will assert appropriate MCRA ing rise to the injury; claims by mailing, certified mail, re- (9) Where an identified third-party turn receipt requested, a notice of tortfeasor is a uniformed claim (SF 96) to identified third-party servicemember or a U.S. employee or the dependent of a uniformed service tortfeasors and their insurers, if member or U.S. employee, information known. Many insured tortfeasors fail and findings concerning whether that to notify their insurance companies of individual was grossly negligent or incidents. This failure may be a breach willfully culpable and whether that in- of the cooperation clause in the policy dividual had insurance coverage at the and may be grounds for the insurer to time of the incident giving rise to the refuse to defend the insured or be re- injury; sponsible for any liability. The United (10) Financial information on identi- States, as a claimant, may preclude fied third-party tortfeasors including such an invocation by giving the req- names and addresses of insurance car- uisite notification itself. The purpose riers, insurance policy numbers, and of the insurance clause is satisified if extent of coverage; and the insurer receives actual notice of (11) A statement whether the injured the incident, regardless of the inform- person or his attorney will protect the ant. This notice should be mailed as interests of the United States. soon as it reasonably appears an identi- (c) Claims forwarded to JAG or DOJ. In fied third party may be liable for the those cases where the file must be for- injuries to the injured person. It is not warded to JAG or DOJ, the file will necessary or desirable to delay mailing also include: this notice until the completion of the (1) A summary of the case which in- investigation convened to inquire into cludes the circumstances of the inci- the circumstances underlying the inci- dent which caused the injury, the dent causing the injury. The prompt source, extent and value of medical care provided and a brief of the appli- assertion of the claim will ensure that cable law on the liability of the third the Government is named on the set- party; tlement draft. If the United States is (2) Copies of all correspondence; and not so named, and the claim has been (3) Recommended disposition. asserted, the insurer settles at its own (d) Request for assistance in conducting risk. investigation. When an injury for which (2) The JAG designee will also notify the DON may assert an MCRA claim the injured person or his legal rep- occurs at a place where the DON does resentative of the Government’s inter- not have a command, unit, or activity est in the value of the medical care conveniently located for conducting an provided by the United States. This no- inquiry into the circumstances under- tice will advise that: lying the injury, the NLSC activity or (i) The United States may be entitled USSSO having responsibility for ad- to recover the reasonable value of med- ministering any resulting MCRA claim ical care furnished or paid for by the may request assistance from any other Federal Government; command, unit, or activity within the (ii) The injured person is required to DOD. Such assistance may take the cooperate in the efforts of the United form of a complete inquiry into the cir- States to recover the reasonable value cumstances underlying the incident or it may only cover part of the necessary of medical care furnished or paid for by inquiry and fact gathering. If a NLSC the Federal Government;
441
VerDate 25
(iii) The injured person is required to JAG to refer the claim to the DOJ for furnish a statement regarding the cir- possible suit. In such cases, the JAG cumstances surrounding the care and designee will forward the complete file treatment; to JAG in accordance with §§ 757.18 (b) (iv) The injured person may seek and (c). legal guidance concerning any possible (g) Access to DON records and informa- claim for personal injury; tion. (1) The medical records of the in- (v) The injured person is required to jured person will be released to the in- furnish information concerning legal jured person or his legal representative action brought against any individual upon request. This release will be with- involved in the incident and provide out cost except in unusual cir- the name of counsel representing the cumstances. These records may not be parties to such an action; and released to anyone else outside the (vi) The injured person should not DON except in accordance with the execute a release or settle a claim aris- provisions of the Privacy Act, 5 U.S.C. ing from the incident causing the in- 552a. Usually such a release will re- jury without first notifying the JAG quire authorization from the injured designee. individual or legal representative or an (f) Administering the claim. (1) After order from a court of competent juris- investigating and asserting the claim, diction. A clerk or attorney signed sub- the JAG designee will maintain con- poena is not ‘‘an order from a court of tact with all parties, their legal rep- competent jurisdiction.’’ resentatives, and insurers. (2) In appropriate cases, military (2) An effort should be made to co- health care providers who have exam- ordinate collection of the Federal Gov- ined or treated the injured person may ernment’s MCRA interest with the in- be made available by their commands jured person’s action to collect his own to testify regarding the medical care claim for damages. provided to the injured person. Re- (i) Attorneys representing an injured quests for such testimony will be proc- person may be authorized to include essed in accordance with DOD Direc- the Federal Government’s MCRA claim tive 5405.2, 28 CFR part 725, and 32 CFR as an item of special damages with the part 725, except when the injured party injured person’s claim or suit. is asserting the Federal Government’s (ii) An agreement that the Govern- MCRA claim as part of his action for ment’s claim will be made a party of damages. In that situation, the injured the injured person’s action should be in person or legal representative is con- writing and state that counsel fees will sidered also to be a representative of not be paid by the Government or com- the United States and the foregoing puted on the basis of the Government’s regulations are not applicable. In such portion of recovery. a case, the JAG designee may, if appro- (3) If the injured person is not bring- priate, request the command of an in- ing an action for damages or is refusing volved military health care provider to to include the Federal Government’s make the provider available for testi- MCRA interest, the JAG designee will mony on behalf of the injured person. pursue independent collection. The United States is specifically allowed to § 757.19 Waiver and compromise. intervene or join in any action at law (a) General. A JAG designee may au- brought by or through the injured per- thorize waiver or compromise of any son against the liable third person or MCRA claim under his authority which bring an original suit in its own name does not exceed $40,000.00. A third par- or in the name of the injured person. ty’s liability for medical costs to the The JAG designee will ensure all par- United States arising from a particular ties are aware that the United States incident will be considered as a single must be a party to all subsequent col- claim in determining whether the lection negotiation. claim is more than $40,000.00 for the (4) When the MCRA interests are not purpose of waiver and compromise. being represented by the injured person When the JAG designee considers waiv- and independent collection efforts have er or compromise appropriate in a failed, the JAG designee will request claim which exceeds $40,000.00, the
442
VerDate 25
claim file will be forwarded to JAG in (7) Any other factors which objec- accordance with §§ 757.18 (b) and (c). tively indicate fairness requires waiv- (b) Waiver. The JAG designee may er. waive the Federal Government’s MCRA (c) Compromise. The JAG designee interest when a responsible third-party may, upon written request of the in- tortfeasor cannot be located, is judg- jured person or legal representative, ment proof, or has refused to pay and compromise the Federal Government’s litigation is not feasible. Waiver is also MCRA interest using the criteria listed appropriate when, upon written request above. by the injured person or legal rep- resentative, it is determined that col- § 757.20 Receipt and release. lection would cause undue hardship to the injured person. In assessing undue (a) Payment. The JAG designee may hardship, the following circumstances receive payment in part or in full for of the injured person should be consid- any claim for which he is responsible. ered: Written acknowledgment of this re- (1) Permanent disability or disfigure- ceipt will be mailed to the party mak- ment; ing payment and a copy of the ac- (2) Lost earning capacity; knowledgement kept in the claim file. (3) Out-of-pocket expenses; (b) Release. The JAG designee will (4) Financial status; execute and deliver a release to third (5) Disability, pension and similar parties making full or compromised benefits available; payment on the Federal Government’s (6) Amount of settlement or award MCRA interest. A copy of the release from third-party tortfeasor; and will be kept in the claims file.
443
VerDate 25
PART 761—NAVAL DEFENSIVE SEA (2) Areas placed under the Secretary AREAS; NAVAL AIRSPACE RES- of the Navy for administrative pur- ERVATIONS, AREAS UNDER NAVY poses by Executive order of the Presi- dent (see § 761.3(b)). ADMINISTRATION, AND THE (3) The Trust Territory of the Pacific TRUST TERRITORY OF THE PACIFIC Islands (see § 761.3(c)). ISLANDS (b) The entry authorizations issued under the authority of this part do not Subpart A—Introduction supersede or eliminate the need for Sec. visas or other clearances or permits re- 761.1 Scope. quired by other law or regulation. 761.2 Background and general policy. [28 FR 13778, Dec. 18, 1963, as amended at 35 761.3 Authority. FR 10008, June 18, 1970] 761.4 Special provisions. 761.5 Definitions. § 761.2 Background and general policy. Subpart B—Criteria and Basic Controls (a) Certain areas, due to their strate- gic nature or for purposes of defense, 761.6 Criteria. have been subjected to restrictions re- 761.7 Basic controls. garding the free entry of persons, ships, and aircraft. Free entry into the areas Subpart C—Entry Authorization listed and defined in this part, and 761.8 General. military installations contiguous to or 761.9 Entry Control Commanders. within the boundaries of defense areas, 761.10 Persons: Group authorizations. is subject to control as provided for by 761.11 Persons: Individual authorizations. Executive order or other regulation. 761.12 Ships: Group authorizations. The object of controls over entry into 761.13 Ships: Individual authorizations. naval defensive sea areas, naval air- 761.14 Aircraft: Group authorizations. space reservations, administrative 761.15 Aircraft: Individual authorizations. areas, and the Trust Territory of the 761.16 Notice of action. 761.17 Revocation. Pacific Islands, is to provide for the 761.18 Appeals. protection of military installations as 761.19 Forms. well as other facilities, including the personnel, property, and equipment as- Subpart D—Additional Instructions signed to or located therein. Persons, ships, and aircraft are excluded unless 761.20 Additional regulations governing per- and until they qualify for admission sons and vessels in Naval Defensive Sea Areas. under the applicable Executive order or regulation. AUTHORITY: 5 U.S.C. 301, 10 U.S.C. 5031, 6011, (b) The control of entry into or move- 18 U.S.C. 2152. The text of part 761 contains ment within defense areas by persons, additional references, including Executive Orders. ships, or aircraft will be exercised so as to fully protect the physical security SOURCE: 28 FR 13778, Dec. 18, 1963, unless of, and insure the full effectiveness of, otherwise noted. bases, stations, facilities and other in- stallations within or contiguous to de- Subpart A—Introduction fense areas. However, unnecessary in- terference with the free movement of § 761.1 Scope. persons, ships, and aircraft is to be (a) This part provides regulations avoided. governing the entry of persons, ships, (c) This part will be administered so and aircraft into: as to provide for the prompt processing (1) Naval Defensive Sea Areas and of all applications and to insure uni- Naval Airspace Reservations estab- formity of interpretation and applica- lished by Executive order of the Presi- tion, insofar as changing conditions dent (see § 761.3(a)). permit.
444
VerDate 25
(d) In cases of doubt, the determina- 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., tion will be made in favor of the course p. 919) and Executive Order 9881 of Au- of action which will best serve the in- gust 4, 1947 (12 FR 5325; 3 CFR, 1943–1948 terests of the United States and na- Comp., p. 662). tional defense as distinguished from (vi) Midway Island Naval Defensive the private interests of an individual or Sea Area; Midway Island Naval Air- group. space Reservation: Executive Order [28 FR 13778, Dec. 18, 1963, as amended at 35 8682 of February 14, 1941 (6 FR 1015; 3 FR 10008, June 18, 1970] CFR, 1943 Cum. Supp., p. 894) as amend- ed by Executive Order 8729 of April 2, § 761.3 Authority. 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., (a) Naval Defensive Sea Areas and p. 919) and Executive Order 9881 of Au- Naval Airspace Reservations. By Execu- gust 4, 1947 (12 FR 5325; 3 CFR, 1943–1948 tive orders, as amended, the President Comp., p. 662). has reserved, set aside, and established (vii) Wake Island Naval Defensive the following Naval Defensive Sea Sea Area; Wake Island Naval Airspace Areas and Naval Airspace Reservations Reservation: Executive Order 8682 of under the control of the Secretary of February 14, 1941 (6 FR 1015; 3 CFR, 1943 the Navy. Incorporated therein are pro- Cum. Supp., p. 894) as amended by Ex- visions for the exercise of control by ecutive Order 8729 of April 2, 1941 (6 FR the Secretary over the entry of per- 1791; 3 CFR, 1943 Cum. Supp., p. 919) and sons, ships, and aircraft into the areas Executive Order 9881 of August 4, 1917 so described. (See § 761.4(b) for delinea- (12 FR 5325; 3 CFR, 1943–1948 Comp., p. tion of areas where entry controls are 662). suspended.) (viii) Kiska Island Naval Defensive (1) Atlantic areas. Guantanamo Bay Sea Area; Kiska Island Naval Airspace Naval Defensive Sea Area; Guanta- Reservation: Executive Order 8680 of namo Bay Naval Airspace Reservation: February 14, 1941 (6 FR 1014; 3 CFR 1943 Executive Order 8749 of May 1, 1941 (6 Cum. Supp., p. 892) as amended by Ex- FR 2252; 3 CFR, 1943 Cum. Supp., p. 931). ecutive Order 8729 of April 2, 1941 (6 FR (2) Pacific areas. (i) Honolulu Defen- 1791; 3 CFR, 1943 Cum. Supp., p. 919). sive Sea Area: Executive Order 8987 of December 20, 1941 (6 FR 6675; 3 CFR, (ix) Kodiak Naval Defensive Sea 1943 Cum. Supp., p. 1048). Area: Executive Order 8717 of March 22, (ii) Kaneohe Bay Naval Defensive Sea 1941 (6 FR 1621; 3 CFR, 1943 Cum. Supp., Area; Kaneohe Bay Naval Airspace p. 915). Kodiak Naval Airspace Reserva- Reservation: Executive Order 8681 of tion: Executive Order 8597 of November February 14, 1941 (6 FR 1014; 3 CFR, 1943 18, 1940 (5 FR 4559; 3 CFR, 1943 Cum. Cum. Supp., p. 893). Supp., p. 837) as amended by Executive (iii) Pearl Harbor Defensive Sea Order 9720 of May 8, 1946 (11 FR 5105; 3 Area: Executive Order 8143 of May 26, CFR, 1943–1948 Comp., p. 527). 1939 (4 FR 2179; 3 CFR, 1943 Cum. Supp., (x) Unalaska Island Naval Defensive p. 504). Sea Area, Unalaska Island Naval Air- (iv) Johnston Island Naval Defensive space Reservation: Executive Order Sea Area; Johnston Island Naval Air- 8680 of February 14, 1941 (6 FR 1014; 3 space Reservation: Executive Order CFR, 1943 Cum. Supp., p. 892) as amend- 8682 of February 14, 1941 (6 FR 1015; 3 ed by Executive Order 8729 of April 2, CFR, 1943 Cum. Supp., p. 894) as amend- 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., ed by Executive Order 8729 of April 2, p. 919). See § 761.4(d) for delineation of 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., areas where entry controls are sus- p. 919) and Executive Order 9881 of Au- pended. gust 4, 1947 (12 FR 5325; 3 CFR, 1943–1948 (b) Administrative areas. By Executive Comp., p. 662). orders, as amended, the President has (v) Kingman Reef Naval Defensive reserved, set aside, and placed under Sea Area; Kingman Reef Naval Air- the control and jurisdiction of the Sec- space Reservation: Executive Order retary of the Navy for administrative 8682 of February 14, 1941 (6 FR 1015; 3 purposes the following named areas in- CFR, 1943 Cum. Supp., p. 894) as amend- cluding their appurtenant reefs and ed by Executive Order 8729 of April 2, territorial waters:
445
VerDate 25
(1) Johnston Island—Executive Order tory, shall be made to the High Com- 6935 of December 29, 1934 as amended by missioner for processing in accordance Executive Order 11048 of September 4, with the laws and regulations of the 1962 (27 FR 8851; 3 CFR, 1962 Supp., p. Trust Territory: Provided, That prior to 241). the issuance of an authorization to (2) Kingman Reef—Executive Order enter the Trust Territory, the High 6935 of December 29, 1934 as amended by Commissioner shall provide the De- Executive Order 11048 of September 4, partment of the Navy in all cases (with 1962 (27 FR 8851; 3 CFR, 1962 Supp., p. the exception of alien individuals who 241). possess a valid U.S. visa and seek ad- (3) Midway Island—Executive Order mission to the Trust Territory for a pe- 11048 of September 4, 1962 (27 FR 8851; 3 riod of 30 days or less for the purpose of CFR, 1962 Supp., p. 241). tourism) information on the applicants (4) Sand Island—Executive Order 6935 for its consideration and comment, of December 29, 1934 as amended by Ex- granting thereby the Department of ecutive Order 11048 of September 4, 1962 the Navy the right to object to the (27 FR 8851; 3 CFR, 1962 Supp., p. 241). issuance of an authorization. (c) Trust Territory of the Pacific Is- (3) Ships and aircraft: (i) The entry of lands. The Trust Territory of the Pa- ships and aircraft, other than U.S. pub- cific Islands is a strategic area admin- lic ships and aircraft, documented istered by the United States under the under either the laws of the United provisions of a trusteeship agreement States or the laws of the Trust Terri- with the United Nations. Under Execu- tory into areas of the Trust Territory, tive Order 11021 of May 7, 1962 (27 FR excepting those areas where entry is 4409; 3 CFR, 1959–1963 Comp., p. 600), the controlled by the Department of the Secretary of the Interior is charged Army (Kwajalein Atoll) and the De- with responsibility for administration fense Nuclear Agency (Eniwetok Atoll), of the civil government of the Trust shall be controlled solely by the High Territory of the Pacific Islands. Under Commissioner. July 1, 1963 amendment two agree- (ii) Applications for entry into the ments effective July 1, 1951 and July 1, Trust Territory, except for those areas 1962 between the Department of the under military control, of ships and Navy and the Department of the Inte- aircraft not documented under the laws rior concerning responsibility for ad- of the United States or the laws of the ministration of the Government of the Trust Territory, shall be made to the Trust Territory, the entry of individ- High Commissioner for processing in uals, ships and aircraft into the Trust accordance with the laws and regula- Territory (other than areas under the tions of the Trust Territory: Provided, control of the Department of the Army That prior to the issuance of an au- (Kwajalein Atoll) and of the Defense thorization to enter the Trust Terri- Nuclear Agency (Eniwetok Atoll) see tory, the High Commissioner shall pro- § 761.4) is controlled by the High Com- vide the Department of the Navy in all missioner of the Trust Territory and cases with information on the appli- the Department of the Navy as follows: cants for its consideration and com- (1) Entry of U.S. citizens and nation- ment, granting thereby the right of the als and citizens of the Trust Territory, Department of the Navy to object to into areas of the Trust Territory other the issuance of an authorization. than those areas under control of the (d) [Reserved] Department of the Army and the De- (e) Exercise of authority. The author- fense Nuclear Agency as outlined ity of the Secretary of the Navy to con- above, shall be controlled by the High trol entry of ships, planes, and persons Commissioner. into the areas listed is exercised (2) All other persons: Applications for through the Chief of Naval Operations entry into the Trust Territory except and certain of his subordinates as pre- for those areas under control of the De- scribed in this part. partment of the Army or of the Defense (f) Penalties. Penalties are provided Nuclear Agency, of all persons who are by law: (1) For violations of orders or not U.S. citizens, U.S. nationals, or regulations governing persons or ships who are not citizens of the Trust Terri- within the limits of defensive sea areas
446
VerDate 25
(62 Stat. 799; 18 U.S.C. 2152); (2) for en- entry into the following Naval Defen- tering military, naval or Coast Guard sive Sea Areas and Naval Airspace Res- property for prohibited purposes or ervations and Administrative Areas after removal or exclusion therefrom have been suspended subject to rein- by proper authority (62 Stat. 765; 18 statement without notice at any time U.S.C. 1382); (3) for violation of regula- when the purposes of national defense tions imposed for the protection or se- may require. curity of military or naval aircraft, (1) All Naval Airspace Reservations, airports, air facilities, vessels, harbors, except the Guantanamo Bay Naval Air- ports, piers, waterfront facilities, space Reservation bases, forts, posts, laboratories, sta- (2) Honolulu Defensive Sea Area. tions, vehicles, equipment, explosives, (3) Kiska Island Naval Defensive Sea or other property or places subject to Area. the jurisdiction, administration, or in (4) Kodiak Island Naval Defensive the custody of the Department of De- Sea Area. fense, any department or agency of (5) Unalaska Island Naval Defensive which said department or agency con- Sea Area. sists, or any officer of employee of said (6) Wake Island Naval Defensive Sea department or agency (sec. 21 of the In- Area except for entry of foreign flag ternal Security Act of 1950 (50 U.S.C. ships and foreign nationals. 797) and Department of Defense Direc- (7) The portion of Kaneohe Defensive tive 5200.8 of 20 August 1954 (19 FR Sea Area lying beyond a 500 yard buffer 5446)); and (4) for knowingly and will- zone around the perimeter of the fully making a false or misleading Kaneohe Marine Corps Air Station statement or representation in any (Mokapu Peninsula) and eastward matter within the jurisdiction of any therefrom to Kapoho Point, Oahu. department or agency of the United (e) Suspension of restrictions on States (18 U.S.C. 1001). entry into a naval airspace reservation, naval defensive sea area, or naval ad- [28 FR 13778, Dec. 18, 1963, as amended at 35 ministrative area, does not affect the FR 10008, June 18, 1970; 36 FR 21889, Nov. 17, 1971; 41 FR 28957, July 14, 1976] authority of a commanding officer or other appropriate commander to con- § 761.4 Special provisions. trol entry into or passage through any base, station, or other installation or (a) Entry into islands in the Kwaja- area, including port or harbor facilities lein Atoll under military jurisdiction under Navy control. is controlled by the Department of the Army. Inquiries concerning entries [41 FR 28957, July 14, 1976] into islands under military control in the Kwajalein Atoll should be directed § 761.5 Definitions. to: National Range Commander, U.S. (a) Defense area. A naval defensive Army Safeguard System Command, sea area, naval airspace reservation, or ATTN: SSC–R, P.O. Box 1500, Hunts- naval administrative area established ville, AL 35807. by Executive order of the President. (b) Entry into Eniwetok Atoll is con- (b) Department of Defense. The De- trolled by the Defense Nuclear Agency. partment of Defense, including the De- Inquiries concerning entries into Eni- partments of the Army, Navy, and Air wetok Atoll should be directed to: Force. Commander, Field Command, Defense (c) Entry authorization. A document Nuclear Agency, Kirtland Air Force which authorizes a ship, aircraft, or Base, NM 87115. person to enter a defense area. (c) Entry into Johnston Atoll is con- (d) Entry Control Commander. A com- trolled by the Defense Nuclear Agency. mander empowered to issue entry au- Inquiries concerning entries into John- thorizations for one or more defense ston Atoll should be directed to: Com- areas (see § 761.9). mander, Johnston Atoll (FCDNA), APO (e) Excluded person. A person who San Francisco, CA 96305. does not hold a currently valid entry (d) Suspension of restrictions. Restric- authorization for the area concerned tions imposed under the authority of and who has been notified by an Entry the above cited Executive Orders on Control Commander that authority for
447
VerDate 25
him to enter any defense area has been Subpart B—Criteria and Basic denied, suspended or revoked. Controls (f) Foreign nationals. Persons who are not citizens or nationals of the United § 761.6 Criteria. States. (a) General. (1) Entry authorizations (g) Military installation. A military may be issued only after an Entry Con- (Army, Navy, Air Force, Marine Corps, trol Commander, or a duly authorized and/or Coast Guard) activity ashore, subordinate acting in his behalf, has having a commanding officer, and lo- determined that the presence of the cated in an area having fixed bound- person, ship, or aircraft will not, under aries, within which all persons are sub- existing or reasonably foreseeable fu- ject to military control and to the im- ture conditions, endanger, place an mediate authority of a commanding of- undue burden upon, or otherwise jeop- ficer. ardize the efficiency, capability, or ef- (h) Public vessel or aircraft. A ship or fectiveness of any military installation aircraft owned by or belonging to a located within or contiguous to a de- government and not engaged in com- fense area. Factors to be considered mercial activity. shall include, but not be limited to, the (i) Territorial sea—(1) Trust Territory. true purpose of the entry, the personal In accordance with title 19, section history, character and present or past 101(3), of the Trust Territory Code associates of the individuals involved, ‘‘* * * that part of the sea com- the possible burdens or threats to the prehended within the envelope of all defense facilities which the presence of arcs of circles having a radius of three the ship, aircraft or the individual or marine miles drawn from all points of individuals involved impose or might the barrier reef, fringing reef, or other reasonably be expected to impose on reef system of the Trust Territory, the related base complex. measured from the low water line, or, (2) Requests for entry authorizations in the absence of such reef system, the will be evaluated and adjudged as to distance to be measured from the low whether the entry at the time and for water line of any island, islet, atoll, the purpose stated will or will not be reef, or rocks within the jurisdiction of inimical to the purposes of national de- the Trust Territory.’’ fense. (2) Other areas. That part of the sea (b) Adverse. Substantial evidence of included within the envelope of all arcs any of the following shall preclude the of circles having a radius of three ma- granting of entry authorization except rine miles with centers on the low with the specific approval of the Chief water line of the coast. For the purpose of Naval Operations in each case: of this definition, the term ‘‘coast’’ in- (1) Prior noncompliance with entry cludes the coasts of islands, islets, control regulations or failure to ob- rocks, atolls, reefs and other areas of serve terms under which any entry au- land permanently above the high water thorization may have been granted; 1 mark. (2) Willfully furnishing false, incom- (j) Trust Territory Registry. Registra- plete, or misleading information in an tion of a ship or aircraft in accordance application for an entry authorization;1 with the laws of the Trust Territory. (3) Advocacy of the overthrow or al- (k) U.S. Registry. Registration of a teration of the Government of the ship or aircraft in accordance with the United States by unconstitutional laws and regulations of the United means; States. (4) Commission of, or attempt or (l) U.S. Armed Forces. Military person- preparation to commit, an act of espio- nel of the Department of Defense, the nage, sabotage, sedition, or treason, or Departments of the Army, Navy, Air conspiring with or aiding or abetting Force, and the United States Coast another to commit such an act; Guard.
[28 FR 13778, Dec. 18, 1963, as amended at 35 1 The criteria so marked are applicable FR 10009, June 18, 1970; 41 FR 28958, July 14, only to those applications concerning entry 1976] into areas under military cognizance.
448
VerDate 25
(5) Performing, or attempting to per- (13) Conviction of larceny of property form, duties, or otherwise acting so as of the United States, willful injury to to serve the interest of another govern- or destruction of property of the ment to the detriment of the United United States, fraudulent enlistment, States; impersonation of a commissioned offi- (6) Deliberate unauthorized disclo- cer of the United States or any state or sure of classified defense information; territory thereof, or any offense involv- (7) Knowing membership with the ing moral turpitude, except offenses, specific intent of furthering the aims which, in the jurisdiction within which of, or adherence to and active partici- the conviction was obtained, are pun- pation in, any foreign or domestic or- ishable by imprisonment for not more ganization, association, movement, than one year or a fine of not more group, or combination of persons (here- than one thousand dollars. 1 inafter referred to as organizations) which unlawfully advocates or prac- (c) Aliens. (1) Entry of aliens for em- tices the commission of acts of force or ployment or residence in an area en- violence to prevent others from exer- tirely within the borders of a defense cising their rights under the Constitu- area is not authorized except when tion or laws of the United States or of such entry would serve the interests of any State, or which seeks to overthrow National Defense, and then only for the Government of the United States specified periods and under prescribed or any State or subdivision thereof by conditions. unlawful means; (2) Entry of aliens for any purpose (8) Serious mental irresponsibility into areas over which the United evidenced by having been adjudged in- States exercises sovereignty is further sane, or mentally irresponsible, or an subject to requirements imposed by incompetent, or a chronic alcoholic, or law for the obtaining of a United treated for serious mental or neuro- States visa. Naval authorization for logical disorders or for chronic alcohol- entry into areas covered by this part ism, without evidence of cure;1 will not be issued to foreign nationals (9) Conviction of any of the following for purposes, places, or periods of time offenses under circumstances indic- in excess of those stipulated in the ative of a criminal tendency poten- visa. tially dangerous to the security of a (3) Alien spouses and bona fide de- strategic area containing military es- pendents of U.S. citizen employees of tablishments; arson, unlawful traffick- the United States may, if otherwise ing in drugs, murder, kidnaping, black- mail, or sex offenses involving minors qualified, be granted entry authoriza- or perversion. tion so long as the U.S. citizen sponsor (10) Chronic alcoholism or addiction or principal remains on duty or resi- to the use of narcotic drugs without dent within the defense area. adequate evidence of rehabilitation; 1 (d) Renewals. Entry authorizations (11) Illegal presence in the United having been granted and utilized may States, its territories or possessions, be extended or renewed upon request at having been finally subject to deporta- the expiration of the period for which tion order, or voluntary departure in the entry was originally authorized or lieu of deportation order, by the United extended, provided the justification for States Immigration and Naturalization remaining in the area or for making a Service; 1 reentry meets the criteria set forth in (12) Being the subject of proceedings this part. It shall be the responsibility for deportation or voluntary departure of every applicant to depart the defense in lieu of deportation for any reasons area for which entry was authorized which have not been determined in the upon expiration of the time prescribed applicant’s favor; 1 in the authorization, unless such au- thorization has been extended or re- 1 The criteria so marked are applicable newed. Failure to comply herewith will only to those applications concerning entry be considered as evidence of violation into areas under military cognizance.
449
VerDate 25
of this part and may result in denial of tion instructions from the appropriate future authorizations. Entry Control Commander. [28 FR 13778, Dec. 18, 1963, as amended at 36 (d) Trust Territory. An authorization FR 21890, Nov. 17, 1971; 41 FR 28958, July 14, from the High Commissioner is re- 1976] quired for all persons desiring to enter the Trust Territory, except for those § 761.7 Basic controls. areas under military jurisdiction where (a) General. Except for such persons, entry is controlled by the Department ship, or aircraft as are issued an au- of the Army (Kwajalein Atoll) and the thorization to enter by an Entry Con- Defense Nuclear Agency (Eniwetok trol Commander: Atoll). (1) No person, except persons aboard (e) Military areas. Entries authorized public vessels or aircraft of the United under this Instruction do not affect the States, shall enter any defense area. authority of a commanding officer or (2) No vessel or other craft, except other appropriate commander to im- public vessels of the United States pose and enforce proper regulations shall enter any naval defensive sea pertaining to movement into or within area or other defense area. naval stations or other military instal- (3) No aircraft, except public aircraft lations. of the United States, shall be navigated (f) Waiver prohibited. No officer of the within any naval airspace reservation U.S. Armed Forces, except as author- of the airspace over other defense ized in writing by the Chief of Naval areas. Operations, has authority to waive the (b) Excluded persons—(1) Entry prohib- requirements of this part, and any ited. Excluded persons, as defined in waiver must be in writing and signed § 761.5(e), are prohibited from entering by an authorized person. any defense area. In a bona fide emer- gency which requires an excluded per- [28 FR 13778, Dec. 18, 1963, as amended at 36 FR 21890, Nov. 17, 1971; 41 FR 28958, July 14, son’s presence in or transit through a 1976] military installation which is also a defense area, the commanding officer of the installation may grant permis- Subpart C—Entry Authorization sion to enter or transit subject to such § 761.8 General. restrictions as may be imposed by reg- ulation or which may, in his discretion, (a) As indicated in § 761.7(a), certain be required. persons, ships, and aircraft must be (2) Carrying prohibited. Except in a specifically authorized under the provi- bona fide emergency and after being sions of this part to enter defense authorized by the appropriate local au- areas. thority, no vessel or aircraft, except (b) When entering or transiting a de- public vessels and aircraft of the fense area each person, ship, or aircraft United States, shall enter into or be must have a valid authorization or sat- navigated within any defense area isfactory evidence thereof. while carrying any excluded person, as defined in this part, as passenger, offi- § 761.9 Entry Control Commanders. cer or crew member. The following commanders are des- (c) Control of violators. No command- ignated Entry Control Commanders ing officer of a military installation with authority to approve or dis- shall permit any ship or aircraft which approve individual entry authoriza- has entered the limits of his command tions for persons, ships, or aircraft as by passing through a defense area with- indicated (Commander Seventeenth out authorization to land, except in Coast Guard District has been des- emergency, or, if permitted to land, to ignated an Entry Control Commander disembark passengers or cargo except by the authority of the Commandant, as authorized by the appropriate Entry U.S. Coast Guard and Commander, Control Commander. Commanding offi- Western Area, U.S. Coast Guard); cers will take appropriate action to ap- (a) Chief of Naval Operations. Author- prehend violators who come within ization for all persons, ships, or air- their jurisdiction and request disposi- craft to enter all defense areas.
450
VerDate 25
(b) Commander in Chief, U.S. Atlantic Naval District, as representative of the Fleet. Authorization for all persons, Secretary of the Navy, retains respon- ships, or aircraft to enter defense areas sibility for security of the Honolulu in the Atlantic. Defensive Sea Area, as required by (c) Commander in Chief, U.S. Pacific naval interest, and, as such, issues am- Fleet. Authorization for all persons, plifying instructions relating to the ships, or aircraft to enter defense areas Honolulu Defensive Sea Area. in the Pacific. [41 FR 28958, July 14, 1976] (d) Commander U.S. Naval Forces Car- ibbean. Authorization for all persons, § 761.10 Persons: Group authoriza- ships, and aircraft to enter the Guanta- tions. namo Bay Naval Defensive Sea Area Persons in the following categories, and the Guantanamo Naval Airspace except those persons who have been de- Reservation. (This authority delegated nied individual authorization or have to Commander U.S. Naval Base, Guan- had a prior authorization revoked, may tanamo Bay.) enter the defense areas indicated with- (e) Commander U.S. Naval Base, Guan- out individual authorization: tanamo Bay. Authorization for all per- (a) Persons aboard U.S. public vessels sons, ships, and aircraft to enter the or aircraft entering a Naval Defensive Guantanamo Bay Naval Defensive Sea Sea Area or a Naval Airspace Reserva- Area and the Guantanamo Naval Air- tion. space Reservation. (b) Military members of the U.S. (f) Commander Third Fleet. Authoriza- Armed Forces or U.S. civil service em- tion for U.S. citizens and U.S. reg- ployees of the Department of Defense istered private vessels to enter Midway when traveling on official orders. Island, Kingman Reef, Kaneohe Bay (c) U.S. ambassadors, cabinet mem- Naval Defensive Sea Area, Pearl Har- bers, elected U.S. Government officers bor Defensive Sea Area and Filipino and U.S. citizen civil service employees workers employed by U.S. contractors of the U.S. Government traveling on to enter Wake Island. official orders on U.S. Government (g) Commander U.S. Naval Forces, Mar- business may enter defense areas as re- ianas. Authorization in conjunction quired by their orders. with the High Commissioner, for non- (d) Dependents of military members U.S. citizens, ships, or aircraft docu- of the U.S. Armed Forces and U.S. citi- mented under laws other than those of zen dependents of U.S. civil service em- the United States or the Trust Terri- ployees traveling on official orders and tory to enter those portions of the entering for purposes of joining a prin- Trust Territory where entry is not con- cipal permanently stationed in an area trolled by the Department of the Army covered by this part. or the Defense Nuclear Agency. (e) U.S. Navy Technicians, U.S. Army (h) Senior naval commander in defense Contract Technicians, or U.S. Air area. Emergency authorization for per- Force Contract Technicians, who are sons, ships, or aircraft in cases of emer- traveling on official (does not include gency or distress. In all cases the Chief invitational) travel orders on U.S. Gov- of Naval Operations, and as appro- ernment business, may enter defense priate, the Commander in Chief, U.S. areas as specifically required by such Atlantic Fleet or the Commander in orders. Chief, U.S. Pacific Fleet, and other in- (f) [Reserved] terested commands, shall be informed (g) Individuals on board any foreign immediately of the nature of the emer- public vessel or aircraft which has been gency, and action taken. granted diplomatic or other official (i) U.S. Coast Guard. The U.S. Coast U.S. Government authorization to Guard regulates the movement of ship- enter an area covered by this part. ping within the Honolulu Harbor under (h) Through passengers and bona fide the authority of Executive Orders 10173 regularly employed crew members, un- and 10289; such shipping is considered less otherwise excluded, on nonpublic to be under U.S. authorized supervision vessels authorized to enter areas cov- within the meaning of Executive Order ered by this part. This does not include 8987. The Commandant, Fourteenth an authorization to disembark at a
451
VerDate 25
port contiguous to or within the areas activity has information regarding the covered in this part. Application for applicant or his employer, appropriate authorization to disembark may be comment and/or recommendation for submitted to an Entry Control Com- disposition will be included in the for- mander having jurisdiction over the warding letter. particular port. (b) Form. (1) Applications for entry (i) Through passengers and bona fide authorizations will be made on the regularly employed crew members, un- standard form Statement of Personal less otherwise excluded, on nonpublic History, DD 398, which is available at aircraft authorized to enter areas cov- most military installations. In addi- ered by this part. Such persons are sub- tion to the information required by the ject to local regulations governing form, an entry application shall in- entry into or movement within mili- clude the following additional informa- tary air stations or facilities. Applica- tion under Item 20, ‘‘Remarks’’: tion for authorization to disembark may be submitted to an Entry Control 21. Purpose of proposed visit: (Detailed statement including names of principal per- Commander having jurisdiction over sons, firms, or establishments to be visited) the air facility. 22. Proposed duration of visit: (j) U.S. citizen news correspondents 23. Estimated date of arrival: and photographers when properly ac- 24. Address to which authorization should credited by the Department of Defense be mailed: to enter areas covered by this part ex- cept that special authorization is re- In the event that a DD 398 form is not quired to enter the restricted areas available, a locally produced form con- listed in § 761.4(a). taining identical information including the certification and signature of ap- [28 FR 13778, Dec. 18, 1963, as amended at 36 plicant and witness may be utilized. FR 21890, Nov. 17, 1971] (2) Incomplete forms will be returned § 761.11 Persons: Individual authoriza- for completion. tions. (3) When time is of the essence, emer- gency applications may be forwarded (a) Application; filing. Applications for authorization to enter defense areas by message to the appropriate Entry shall be filed with one of the following: Control Commander. Such messages (1) Chief of Naval Operations. shall include the following: (2) Commander in Chief, U.S. Atlan- (i) Name of applicant. tic Fleet. (ii) Date and place of birth. (3) Commander in Chief, U.S. Pacific (iii) Citizenship. Fleet. (iv) Residence for last ten (10) years. (4) Any Naval Sea Frontier Com- (v) Employers and their addresses for mander. last ten (10) years. (5) Any Naval Fleet or Force Com- (vi) Results of Local Agency Check, if mander. pertinent. (6) Any Naval District Commandant. (vii) Place to be entered and date of (7) Any Naval Attache. The Com- entry. mander or Attache with whom the ap- (viii) Purpose of entry and duration plication is filed is responsible for tak- of stay. ing such action on the application as (ix) Comments and/or recommenda- he may be empowered to do or for for- tions of forwarding officer as appro- warding the application to the nearest priate. Entry Control Commander authorized (x) A statement that a completed DD by this part to take action thereon. 398 or appropriate substitute has been Applications received in the United mailed prior to the sending of the mes- States and those received indicating sage. that the applicant has resided in the (c) Processing. The Entry Control United States for the major portion of Commander empowered to issue entry ten years immediately prior to date of authorizations shall upon receipt of an request will normally be forwarded to application take the following action: the Chief of Naval Operations for ac- (1) Initiate or conduct such investiga- tion. In all cases where the forwarding tion as may be required to establish
452
VerDate 25
facts upon which to make a determina- ances, to enter defense areas as author- tion that the entry of the applicant at ized by controlling Defense Depart- the time and for the purpose indicated ment agency. is or is not in accordance with the cri- (c) [Reserved] teria set forth in § 761.6. (d) Privately owned local craft, reg- (2) Request additional information istered with and licensed by appro- from the applicant if required, or priate local U.S. Government authori- (3) Issue an entry authorization as re- ties, and owned and operated by local quested or modified as circumstances inhabitants who have been granted an require, or authorization to enter the local defense (4) Deny the request and advise the area at the discretion of the local com- applicant of his right to appeal, or, manders. (5) Forward the application to the (e) Foreign flag ships traveling on next superior in command together diplomatic or other special clearance with a statement of the investigation or for which special arrangements have conducted and the reason for forward- been made under international agree- ing and comments or recommendations ments or treaties. as appropriate. (f) Ships operating under a group au- (d) Authorizations. Entry authoriza- thorization issued by the Chief of tions will state the purpose for which Naval Operations. the entry is authorized and such other (g) Ships in distress, subject to local information and conditions as are per- clearances and control by senior officer tinent to the particular authorization. present. Authorizations to enter and re-enter may be issued to resident U.S. citizens [28 FR 13778, Dec. 18, 1963, as amended at 36 and be valid for a specified time not to FR 21890, Nov. 17, 1971] exceed two years. Authorizations may § 761.13 Ships: Individual authoriza- be issued to U.S. citizens residing tions. abroad and to aliens to enter and re- (a) Applications; form; filing. Applica- enter for a specified period of time re- tions for authorization to navigate quired to accomplish the purpose for ships within the limits of defense areas which the authorization was issued not shall be filed with the cognizant Entry to exceed one year. Control Commander by letter or tele- [28 FR 13778, Dec. 18, 1963, as amended at 41 gram including the following informa- FR 28958, July 14, 1976] tion and any additional information that may be relative to the proposed § 761.12 Ships: Group authorizations. operation: Ships or other craft in the following (1) Name of ship. categories, except those ships which (2) Place of registry and registry have been denied individual authoriza- number. tion or have had a prior authorization (3) Name, nationality and address of revoked, may enter the defense areas operator. indicated without individual authoriza- (4) Name, nationality and address of tions: owner. (a) U.S. Public vessels, to enter all (5) Gross tonnage of ship. defense areas. (6) Nationality and numbers of offi- (b) U.S. private vessels which are: (1) cers and crew (include crewlist when Under charter to the Department of practicable). Defense (including the Military Sealift (7) Number of passengers (include list Command), or (2) operating under a when practicable). contract or charter with the Depart- (8) Last port of call prior to entry ment of Defense providing for the em- into area for which clearance is re- ployment of such vessels, or (3) routed quested. by a Naval Control of Shipping Office, (9) Purpose of visit. or (4) employed exclusively in support (10) Proposed date of entry and esti- of and in connection with a Depart- mated duration of stay. ment of Defense construction, mainte- (b) Processing. Authorization for sin- nance, or repair contract and whose gle entries or for multiple entries for a crews carry individual entry clear- period not to exceed one year may be
453
VerDate 25
granted or denied by an Entry Control (2) If landing at U.S. Air Force avia- Commander. Authorizations for mul- tion facilities, a Civil Aircraft Landing tiple entries for a period to exceed one Permit must be obtained, in accord- year or for special group entries must ance with Department of the Airforce be forwarded to the Chief of Naval Op- Regulation 55–20, Use of United States erations with appropriate comments Air Force installations by other than and recommendations. United States Department of Defense aircraft. § 761.14 Aircraft: Group authoriza- (3) Foreign public aircraft must ob- tions. tain diplomatic clearance or clearance Aircraft in the following categories, under applicable special agreements or except those aircraft which have been treaties. denied individual authorization or have (b) Application; Form; Filing. Applica- had a prior authorization revoked, may tions for authorization to navigate air- enter the defense areas indicated with- craft within the limits of defense areas out individual authorization: shall be made by letter or telegram ad- (a) U.S. public aircraft to enter all dressed to the appropriate entry con- defense areas. trol commander as indicated in § 761.9 (b) U.S. private aircraft which are with information copies to the Chief of under charter to the Department of De- Naval Operations, Commander in Chief, fense (including the Military Airlift U.S. Atlantic (or Pacific) Fleet, as ap- Command), or operating under a con- propriate, and other local commanders tract with the Department of Defense who are known to be concerned. Appli- providing for the employment of such cations shall include the following: aircraft to overfly U.S. island positions (1) Type and serial number of aircraft to enter defense areas as authorized by (the number of aircraft in flight if a controlling Defense Department agen- mass movement is involved), national- cy. If landing at U.S. military facilities ity and name of registered owner. is required, see § 761.15(a). (2) Name and rank of senior pilot. (c) Foreign flag aircraft for which *(3) Number in crew. special arrangements have been made *(4) Number of passengers and wheth- under international agreements or er military or civilian; include name treaties. (and rank) of distinguished passengers. (d) Aircraft operated by companies (5) Purpose of flight. authorized to utilize naval facilities in (6) Plan of flight route, including: defense areas for regular commercial (i) Point of origin of flight and its activity, to enter defense areas associ- destination. ated therewith. For landing clearance (ii) Estimated date and times of ar- at U.S. military facilities, see rival and departure at all airspaces § 761.15(a). covered by this part 761 including stops (e) Any aircraft in distress, subject to within the Trust Territory, when perti- local clearance and control by senior nent. officer present. (7) Radio call signs of aircraft and [41 FR 28958, July 14, 1976] radio frequencies available. (8) Whether cameras are to be carried § 761.15 Aircraft: Individual authoriza- and whether they will be used. tions. *(9) Whether arms are to be carried. (a) Special procedures. In addition to *(10) Whether authorization to land the entry authorization to enter or as indicated in § 761.15(a) has been ob- navigate within the defense area con- tained. cerned, certain special procedures must NOTE: Information on those items marked be followed by aircraft: with an asterisk (*) need not be reported when the aircraft will only overfly the areas (1) If landing at U.S. naval aviation covered by this part. facilities, an Aviation Facility License must be obtained, in accordance with (c) Processing. Authorization for indi- Secretary of the Navy Instruction vidual entries or for multiple entries 3770.1B, Use of Department of the Navy for a period not to exceed three months aviation facilities by other than United States Department of Defense aircraft. *See ‘‘Note’’ to this paragraph.
454
VerDate 25
may be granted by an Entry Control (b) Appeal letters shall be forwarded Commander. Authorizations for mul- promptly to the next superior Entry tiple entries over a period to exceed Control Commander with an endorse- three months and applications for ment setting forth the reasons for the group authorizations must be for- denial or revocation and a rec- warded to the Chief of Naval Oper- ommendation as to the action to be ations with appropriate comments and taken by the superior. recommendations. (c) The superior may act on the ap- peal and notify the applicant of the de- [41 FR 28958, July 14, 1976] cision, or he may forward the appeal to the next superior and notify the appli- § 761.16 Notice of action. cant of this referral. All applicants will be kept advised of action being taken relative to the proc- [28 FR 13778, Dec. 18, 1963, as amended at 41 FR 28959, July 14, 1976] essing of applications. Individuals whose applications cannot be processed § 761.19 Forms. promptly (usually within ten working days) or whose applications must be The following forms shall be used in forwarded to another office for process- connection with the processing of ap- plications for authorization to enter ing will be notified of the anticipated defense areas and for revocation of au- delay and advised of the approximate thorizations as indicated: time when action may be expected to (a) Application. Statement of Per- be taken. Under no circumstances will sonal History (Form DD 398, Stock a notice of disapproval include a state- Number 0102–004–220) may be obtained ment of the reason therefor. Copies of from NAVPUBFORMCEN, Building 26, all notices will be distributed to com- 5801 Tabor Ave., Philadelphia, PA 19120. mands and Entry Control Commanders (b) Entry authorization. (1) Defense concerned. Copies of all notices of dis- Area Entry Authorization approval will be mailed to the Chief of (OPNAVForm 4600–2 (Rev. 5–59) may be Naval Operations concurrently with obtained from Office of the Chief of the mailing to the applicant. Naval Operations (OP–09B33), Navy De- partment, Washington, DC 20350. § 761.17 Revocation. (2) Letter or message authorization. Entry authorizations will be revoked (c) Disapproval of request for entry au- only by an Entry Control Commander thorization. upon being advised of the discovery of information which would have been MY DEAR ——————: Your application of ——— has been reviewed and we regret to ad- ground for denial of the initial request. vise you that the requested authorization for Such a revocation will be confirmed in ———————— to enter ———————— is writing to the holder of an entry au- not granted as the entry at this time for the thorization. No reason for revocation purpose stated is not considered to be in the of the entry authorization will be interest of national defense. given. When an entry authorization is The application may be resubmitted again revoked, a one-way permit will be in six months at which time it will be recon- sidered in the light of then existing cir- issued as appropriate, to permit the cumstances. ship, aircraft, or person to transit the If you desire to appeal this decision, you defense area in order to depart from a may do so by submitting a letter to this of- contiguous area. fice setting forth in full why you consider that the granting of the application would be § 761.18 Appeals. in the interest of national defense and any other information that you believe will be of (a) Appeals may be filed with the value of this person considering the appeal. Entry Control Commander who issued Your letter will be forwarded to the appro- the denial or revocation. It shall con- priate authority for review and you will be tain a complete statement of the pur- advised in due course of his determination. pose of the proposed entry and a state- Sincerely yours, ment of reasons why the entry should be authorized, including a showing that (d) Revocation of entry authorization. the entry will be consistent with the MY DEAR ——————: This is to notify you purposes of national defense. that entry authorization to enter
455
VerDate 25
———————— granted by (issuing activity) regulations prescribed in Executive on ———— is hereby revoked effective this Order 9275. date. (4) Any person violating section 1 of Sincerely yours, Executive Order 9275 (restated in para- [41 FR 28959, July 14, 1976] graph (a)(1) of this section) shall be lia- ble to prosecution as provided in sec- tion 44 of the Criminal Code as amend- Subpart D—Additional Instructions ed and reenacted in 18 U.S.C. 2152. § 761.20 Additional regulations govern- (b) The regulations stated in para- ing persons and vessels in Naval graph (a) of this section are not a limi- Defensive Sea Areas. tation on prosecution under any other (a) By virtue of the authority vested statute that may have been violated by in the President by section 44 of the acts or omissions prohibited by Execu- United States Criminal Code, as tive Order 9275. amended and reenacted in 18 U.S.C. 2152, the President has prescribed the PART 762—MIDWAY ISLANDS following additional regulations in Ex- CODE ecutive Order 9275 of November 23, 1942 (7 FR 9767; 1943 Cum. Supp. p. 1227) to Subpart A—General govern persons and vessels within the limits of defensive sea areas thereto- Sec. 762.1 Applicability. fore or thereafter established. 762.3 Purpose. (1) No person shall have in his posses- 762.4 Scope. sion within the limits of any defensive sea area, any camera or other device Subpart B—Executive Authority; Authorized for taking pictures, or any film, plate Powers; Emergency Authority or other device upon or out of which a photographic imprint, negative or posi- 762.6 Executive authority; duration. 762.8 Authorized functions, powers, and du- tive, can be made, except in the per- ties. formance of official duty or employ- 762.10 Emergency authority. ment in connection with the national defense, or when authorized pursuant Subpart C—Criminal Law; Petty Offenses; to the provisions of the Act approved Penalties June 25, 1942 (Pub. L. 627, 77th Con- 762.15 General. gress), as amended (50 U.S.C. App. 781– 762.16 Adoption of certain criminal provi- 785), and the regulations promulgated sions of the Hawaii Revised Statutes. thereunder (7 FR 7307; 32 CFR 765.19(b)). 762.17 Conflicts of laws. (2) It shall be the duty of the master 762.18 Time limitations. or officer in charge of any vessel to 762.19 Petty offenses; general. take custody of and safeguard all cam- 762.20 Breach of the peace offenses. eras or other devices for taking pic- 762.22 Offenses against property. 762.24 Moral offenses. tures, or film, plate or other device 762.26 Alcoholic beverages offenses. upon or out of which a photographic 762.28 Vehicle offenses. imprint, positive or negative, can be 762.30 Weapons offenses. made, the possession of which is pro- 762.32 Offenses against the environment. hibited by Executive Order 9275, from 762.34 Miscellaneous offenses. any person, prior to the time any ves- 762.35 Attempt. sel enters any defensive sea area or 762.40 Penalties for petty offenses. 762.42 Penalties for motor vehicle viola- upon the boarding by any person of any tions. vessel while within a defensive sea 762.44 Contempt. area, and to retain custody thereof until such vessel is outside the defen- Subpart D—Midway Islands Court; Rules of sive sea area or the person is about to Criminal Procedure disembark. (3) There shall be prominently dis- 762.50 Establishment; members; sessions. 762.52 Attorney for the United States. played on board all vessels, except pub- 762.54 Criminal jurisdiction. lic war vessels of the United States 762.55 Venue. manned by personnel in the naval serv- 762.56 Rules of criminal procedure. ice, a printed notice containing the 762.58 Release prior to trial and bail.
456
VerDate 25
762.62 Information. States, and those laws made applicable 762.64 Motions and pleas. under the special maritime jurisdiction 762.66 Trial. 762.68 Sentence. contained in the Act of June 15, 1950 762.70 Subpoenas. (ch. 253, 64 Stat. 217). 762.72 Appeals. (b) For the purposes of this part, the 762.74 New trial. Midway Islands include all public lands on, and all territorial waters and the Subpart E—Warrants; Arrests; Special contiguous zone adjacent to or sur- Procedures rounding, the Midway Islands, Hawai- 762.80 Warrants. ian Group, between the parallels of 762.82 Arrests. 28°5′ and 28°25′ North Latitude, and be- 762.84 Citation in place of arrest. tween the meridians of 177°10′ and 762.86 Abatement of nuisance. 177°30′ West Longitude, as were placed Subpart F—Registration and Permit under the jurisdiction and control of Regulations the Navy Department by the provisions of Executive Order No. 199–A of Janu- 762.90 Registration of certain property. 762.92 Permits. ary 20, 1903, as superseded by Executive 762.94 Expiration of permits. Order No. 11048 of September 5, 1962. 762.96 Revocation or suspension of permits. § 762.3 Purpose. Subpart G—Civil Small Claims Law The purpose of this part 762 is to pro- 762.100 Applicable law and jurisdiction over vide: small claims. (a) For the civil administration of 762.102 Small claims procedure; complaint the Midway Islands; and service. 762.104 Time limitations. (b) For vesting powers and duties in 762.106 Costs and fees; waiver. appropriate officers of the United 762.108 Set-off or counterclaim; pleading; States for the civil administration of retention of jurisdiction. the Midway Islands, including judicial 762.109 Jury trial; demand. and executive functions; 762.110 Pre-trial settlement. 762.112 Trial. (c) Certain criminal provisions appli- 762.114 Judgments. cable to the Midway Islands not other- 762.116 Award of costs. wise provided for, and penalties for 762.118 No appeal. their violations; 762.120 Judgment creditors and remedies. 762.126 Parties. (d) A judicial system for the Midway 762.128 Forms and public information. Islands not otherwise provided for; and (e) Certain civil laws for the Midway Subpart H—Savings Clause Islands not otherwise provided for. 762.130 Severability of subparts, sections, paragraphs, or provisions. § 762.4 Scope.
AUTHORITY: Sec. 48, Pub. L. 86–624, 74 Stat. (a) This part is applicable to all civil- 424; 3 U.S.C. 301: E.O. 11048, 3 CFR 1959—1963 ian and nonmilitary persons, and to all Comp., p. 632 (1962). military personnel for matters involv- SOURCE: 41 FR 29672, July 19, 1976, unless ing civil administration, civil law, or otherwise noted. criminal offenses not otherwise cov-
EDITORIAL NOTE: Nomenclature changes to ered by the Uniform Code of Military part 762 appear at 51 FR 22283, June 19, 1986. Justice, while such persons are on the Midway Islands. Subpart A—General (b) In no event shall the provisions of this part supersede federal law, or the § 762.1 Applicability. Uniform Code of Military Justice, nor (a) The local criminal and civil laws shall the provisions of this part dero- of the Midway Islands consist of this gate the inherent or delegated author- part, the provisions of the laws of the ity, responsibility, and powers of the State of Hawaii adopted pursuant to Officer–in–Charge, U.S. Naval Air Fa- § 762.16(a) and § 762.112(a), applicable cility, Midway Island, under U.S. Navy provisions of the laws of the United Regulations, 1973, the Uniform Code of
457
VerDate 25
Military Justice, other pertinent Navy (i) Take possession of lost or aban- directives, and federal law. doned property and dispose of it under the provisions of 10 U.S.C. 2575 and ap- [41 FR 29672, July 19, 1976, as amended at 51 FR 22283, June 19, 1986] plicable Navy directives; (j) Delay or restrict the departure of any aircraft for reasonable cause; Subpart B—Executive Authority; (k) Impose quarantines; Authorized Powers; Emer- (l) Impound and destroy unsanitary gency Authority food, fish, or beverages; (m) Evacuate any person from a haz- § 762.6 Executive authority; duration. ardous area; The executive authority at the Mid- (n) Establish and maintain a facility way Islands is vested in the Secretary for the lawful restraint or confinement of the Navy. The Officer–in–Charge, of persons and provide for their care; U.S. Naval Air Facility, Midway Is- (o) Remove any person from the Mid- land, is the agent of the Secretary or way Islands for cause; his disignee in carrying out any func- (p) Issue traffic regulations that are tion, power, or duty under this part 762. not inconsistent with this part, and The Officer–in–Charge’s authority com- post traffic signs; mences upon his assumption of com- (q) Perform any other acts, not in- mand of U.S. Naval Air Facility, Mid- consistent with this part or other ap- way Island, and continues until he is plicable laws or regulations, that he relieved of that command by replace- considers necessary for protecting the ment. In the event of the absence, dis- health and safety of persons and prop- ability, or death of the Officer–in– erty on the Midway Islands: and Charge, the Acting Commanding Offi- (r) Issue any order or notice nec- cer of U.S. Naval Air Facility, Midway essary to implement this section. Island, is vested with the authority [41 FR 29672, July 19, 1976, as amended at 51 prescribed in this part for the Officer– FR 22283, June 19, 1986] in–Charge and shall remain so vested until the return, recovery, or replace- § 762.10 Emergency authority. ment of the Officer–in–Charge. During the imminence and duration [41 FR 29672, July 19, 1976, as amended at 51 of any emergency, the Officer–in– FR 22283, June 19, 1986] Charge may perform any acts nec- essary to protect life and property. § 762.8 Authorized functions, powers, [41 FR 29672, July 19, 1976, as amended at 51 and duties. FR 22283, June 19, 1986] The Officer–in–Charge may, person- ally or through his staff: Subpart C—Criminal Law; Petty (a) Issue citations for violations of Offenses; Penalties subpart C of this part; (b) Abate any public nuisance upon § 762.15 General. the failure of the person concerned to In addition to any act made criminal comply with a removal notice; in this part, any act committed on (c) Make sanitation and fire-preven- Midway Islands which would be a viola- tion inspections; tion of the laws of the United States; (d) Perform marriages, and maintain or of the provisions of title 37, ‘‘Hawaii records of vital statistics, including Revised Statutes,’’ as they now appear birth, marriage, and death certificates; or as they may be amended or recodi- (e) Inspect vehicles, including bicy- fied; or any act committed on the Mid- cles, for roadworthiness, and boats for way Islands that would be criminal if seaworthiness; committed on board a merchant vessel (f) Confiscate property used in com- or other vessel belonging to the United mitting a crime; States, is a criminal offense and shall (g) Investigate accidents and sus- be punished, respectively, according to pected crimes; this part; the laws of the United (h) Move unlawfully parked vehicles, States; title 37, ‘‘Hawaii Revised Stat- boats, or aircraft; utes,’’ as it now appears or as it may be
458
VerDate 25
amended or recodified; or according to when an arrest warrant or other proc- the laws applicable on board United ess is issued, provided that such war- States vessels on the high seas. [The rant or process is executed without un- Act of June 15, 1950 (ch. 253, 64 Stat. reasonable delay. 217).] (d) The period of limitation does not run: § 762.16 Adoption of certain criminal provisions of the Hawaii Revised (1) During any time when the accused Statutes. is absent from the Midway Islands or has no reasonably ascertainable place (a) Offenses adopted. Whoever on the of abode or work within the Midway Is- Midway Islands is guilty of any act or lands, but in no case shall this provi- omission, which, although not made sion extend the period of limitation punishable by an enactment of Con- otherwise applicable by more than gress or under §§ 762.20 through 762.39, would be punishable if committed three years; or within the State of Hawaii by the laws (2) During any time when a prosecu- thereof at the time of such act or omis- tion against the accused for the same sion, shall be guilty of a like offense conduct is pending in the Midway Is- and subject to a like punishment. lands Court. (b) Jurisdiction over such offenses. The (e) Except those offenses which are United States District Court for the subject, under title 37 of the ‘‘Hawaii District of Hawaii shall have jurisdic- Revised Statutes,’’ as they now appear tion to try all such offenses except or as they may be amended or recodi- those which are subject, under title 37, fied, to a penalty of imprisonment for ‘‘Hawaii Revised Statutes,’’ as it now six months or less or a fine of not more appears or as it may be amended or re- than $500, or both, offenses charged and codified, to a penalty of imprisonment treated under § 762.16 (a) and (b), shall for six months or less or a fine of not be subject to the appropriate time-lim- more than $500 or both. Those offenses itation rules set forth in section 108, falling within the above-stated excep- title 37, ‘‘Hawaii Revised Statutes,’’ as tion shall be tried in the Midway Is- it now appears or as it may be amended lands Court. or recodified.
§ 762.17 Conflicts of laws. § 762.19 Petty offenses; general. In no event shall the provisions of All offenses contained in §§ 762.20 this part supersede the Uniform Code through 762.39 and those offenses of Military Justice when the latter is adopted under § 762.16(a), as they now applicable. Any adopted provisions of appear or as they may be amended or title 37, ‘‘Hawaii Revised Statutes,’’ as recodified, which are subject, under they now appear or as they may be title 37, ‘‘Hawaii Revised Statutes,’’ to amended or recodified, which duplicate a penalty of imprisonment for six or conflict with any other provisions of months or less or a fine of not more this part shall be of no effect. than $500, or both, shall be termed § 762.18 Time limitations. ‘‘Petty Offenses’’ and subject to the penalties set forth in §§ 762.40 through (a) A prosecution for any petty of- 762.49. fense under this part must be com- menced within two years after it is § 762.20 Breach of the peace offenses. committed. (b) An offense is committed either It shall be unlawful for any person, when every element occurs, or, if a leg- while on the Midway Islands: islative purpose to prohibit a continu- (a) With intent to cause public incon- ing course of conduct plainly appears, venience, annoyance, or alarm, or reck- at the time when the course of conduct lessly creating a risk thereof, to en- or the defendant’s complicity therein is gage in fighting, threatening, or other terminated. Time starts to run on the violent or tumultuous behavior; or to day after the offense is committed. make unreasonable noise or offensively (c) A prosecution is commenced ei- coarse utterances, gestures, or dis- ther when an information is filed, or plays, or address abusive language to
459
VerDate 25
any person present; or to create a haz- any parent, guardian, or other person ardous or physically offensive condi- having the legal care, custody, or con- tion by any act which is not performed trol of any minor under the age of 18 under any authorized license or permit; years, except a person in the military, (b) Having no legal privilege to do so, to allow or permit such minor to vio- knowingly or recklessly to obstruct late this ordinance. any roadway, alley, runway, private driveway, or public passage, or inter- § 762.22 Offenses against property. fere with or unreasonably delay any It shall be unlawful for any person, emergency vehicle or equipment or au- while on the Midway Islands: thorized vehicle, boat, vessel, or plane, (a) To loiter, prowl, or wander upon or any peace officer, fireman, or other or near the assigned living quarters public official engaged in or attempt- ing to discharge any lawful duty or of- and adjacent property of another with- fice, whether alone or with others. out lawful purpose, or, while being ‘‘Obstruction’’ as used in this para- upon or near the assigned living quar- graph means rendering impassable ters and adjacent property of another, without unreasonable inconvenience or to peek in any door or window of any hazard; inhabited building or structure located (c) When in a gathering, to refuse to thereon without lawful purpose; obey a reasonable request or order by a (b) To enter upon any assigned resi- peace officer, fireman, or other public dential quarter or areas immediately official to move; adjacent thereto, without permission (1) To prevent an obstruction of any of the assigned occupant; public road or passage; (c) Who is a male to enter any area, (2) To maintain public safety by dis- building, or quarter reserved for persing those gathered in dangerous women, except in accordance with es- proximity to a public hazard. An order tablished visiting procedures; to move under this paragraph ad- (d) Who is a female to enter any area, dressed to a person whose speech or building, or quarter reserved for men, other lawful behavior attracts an ob- except in accordance with established structing audience, is not reasonable if visiting procedures; the obstruction can be readily rem- (e) To enter or remain in, without edied by police control; lawful purpose, any office building, (d) To be substantially intoxicated on warehouse, plant, theater, club, school, any street, road, beach, theater, club, or other building after normal operat- or other public place from the vol- ing hours for that building; untary use of intoxicating liquor, (f) To enter or remain in any area or drugs, or other substance. As used in building designated and posted as ‘‘re- this paragraph, ‘‘substantially intoxi- stricted’’ unless authorized by proper cated’’ is defined as an actual and con- authority to be there; or siderable disturbance of mental or (g) To steal any services or property physical capacities; of a value of less than $50 belonging to (e) With intent to arouse or gratify or property of another. sexual desire of any other person, to expose one’s genitals to a person to § 762.24 Moral offenses. whom one is not married under cir- cumstances in which one’s conduct is It shall be unlawful for any person, likely to cause affront or alarm; or while on the Midway Islands: (f) Who is a minor under the age of 18 (a) To engage in prostitution. ‘‘Pros- years, except a person in the military, titution’’ means the giving or receiving to loiter about or otherwise be on any of the body for sexual intercourse for street, road, beach or other public hire or for indiscriminate sexual inter- place or in any theater, club, or other course with or without hire; or facility between the hours of 12:00 mid- (b) To do any lewd act in a public night and 5:30 a.m. unless accompanied place which is likely to be observed by by an adult over the age of 21 years and others who would be affronted or with the express permission of such mi- alarmed. ‘‘Lewd Act’’ includes any in- nor’s parent or legal guardian; and for decent or obscene act.
460
VerDate 25
§ 762.26 Alcoholic beverages offenses. (g) To operate any automobile, truck, bicycle, motorcycle, or other vehicle, It shall be unlawful for any person, aircraft, or boat or other vessel, or while on the Midway Islands: other means of conveyance while under (a) To sell any alcoholic beverages to the influence of alcoholic beverages, any person who, because of age, would narcotic drugs, central nervous system be prohibited from purchasing that stimulants, hallucinogenic drugs or beverage in a civilian establishment in barbiturates; or Hawaii. It shall not be unlawful, how- (h) To exceed the speed limit for ever, for persons authorized to sell al- automobiles, trucks, bicycles, motor- coholic beverages to sell beer with an cycles, or other vehicles. Unless other- alcoholic content of not more than 3.2 wise posted, the speed limit throughout percent by weight to military person- the Midway Islands is 15 miles per nel regardless of age; or hour. (b) To present or have in his posses- sion any fraudulent evidence of age for § 762.30 Weapons offenses. the purpose of obtaining alcoholic bev- erages in violation of § 762.26(a). It shall be unlawful for any person, while on the Midway Islands: § 762.28 Vehicle offenses. (a) Other than a security patrolman It shall be unlawful for any person, or shore patrolman or other duly ap- while on the Midway Islands: pointed official in the performance of (a) To operate or use intentionally an official duty, to carry a concealed any automobile, truck, bicycle, motor- pistol or other concealed firearm, or a cycle or other vehicle, aircraft, or boat concealed knife with a blade more than or other vessel, for any purpose, with- four inches long or with a blade capa- out consent of the owner thereof or his ble of being opened by a mechanical de- authorized agent; vice, commonly known as a switch- blade knife; or (b) To operate any bicycle that has not been properly registered with the (b) Without proper authority, to keep Security Department, U.S. Naval Air or use in any place any dangerous Facility, Midway Island, within one weapons including rifles, shotguns, pis- week after entering U.S. Naval Air Fa- tols, airguns, CO 2 guns, pellet guns, cility, Midway Island, with such bicy- and BB guns. cle, or within 72 hours after ownership § 762.32 Offenses against the environ- or possession thereof has been obtained ment. on the Midway Islands. (c) To operate any automobile, truck, It shall be unlawful for any person, bicycle, motorcycle or other vehicle, while on the Midway Islands: aircraft, or boat or other vessel, with- (a) Knowingly to place, throw, drop, out due regard for safety of others; or allow to drop any litter on any prop- (d) To operate any automobile, truck, erty or in any waters or beach. ‘‘Lit- bicycle, motorcycle, or other vehicle ter’’ means rubbish, refuse, and debris and disregard or disobey any traffic of whatever kind or description, wheth- regulation, sign, or marking erected, er or not it is of value; inscribed, or placed by competent au- (b) To grossly waste potable water; or thority on the Midway Islands, includ- (c) To remove, injure, or destroy any ing, but not limited to, ‘‘Stop,’’ wild bird, egg, or seal, or for any owner ‘‘Yield,’’ ‘‘Speed,’’ and ‘‘No Parking’’ of a dog or other pet to allow know- signs; ingly such dog or other pet to remove, (e) To operate a United States Gov- injure, or destroy any wild bird, egg, or ernment vehicle without holding a cur- seal, or for the parent or legal guardian rent United States Government opera- of any minor child to allow knowingly tor’s license for that type of vehicle; such minor child to remove, injure, or (f) To operate a privately owned destroy any wild bird, egg, or seal. automobile, truck, motorcycle, or like motor vehicle without holding a valid § 762.34 Miscellaneous offenses. operator’s license from some State or It shall be unlawful for any person, territory of the United States; while on the Midway Islands:
461
VerDate 25
(a) To engage in a trade, business, or fense shall be subject to the same ap- other commercial activity on Midway propriate penalties authorized under Islands without first obtaining written §§ 762.40 through 762.49 for the commis- permission from the Officer–in–Charge, sion of the offense attempted, except U.S. Naval Air Facility, Midway Is- that attempts of all offenses adopted land; under § 762.16, except those which are (b) To smoke or ignite any fire in any subject, under title 37, ‘‘Hawaii Revised designated and posted ‘‘No Smoking’’ Statutes,’’ as it now appears or as it area, or in the immediate proximity of may be amended or recodified, to a any aircraft, fueling pit, or ordnance or penalty of imprisonment of six months pyrotechnic storage areas; or less or a fine of not more than $500, (c) Knowingly to report or cause to shall be punished as directed by appro- be reported to the Security Depart- priate sections of title 37, ‘‘Hawaii Re- ment, Fire Department, or any official vised Statutes,’’ as they now appear or thereof, or to any other public official, as they may be amended or recodified. or willfully to activate, or cause to be activated, any alarm, that an emer- § 762.40 Penalties for petty offenses. gency exists, knowing that such report Whoever is found guilty of a viola- or alarm is false. ‘‘Emergency,’’ as used tion of any petty offense under this herein, includes any condition which subpart, other than § 762.28 (b) through results, or could result, in the response (h), is subject to a fine of not more of a public official in an emergency ve- than $500 or imprisonment for not more hicle, or any condition which jeopard- than six months, or both. izes, or could jeopardize, public lives or safety, or results or could result in the § 762.42 Penalties for motor vehicle evacuation of an area, building, struc- violations. ture, vehicle, aircraft, or boat or other Whoever is found guilty of a viola- vessel, or any other place by its occu- tion of any one of § 762.28 (b) through pants; or (h), is subject to a fine of not more (d) Intentionally to report to any than $100, imprisonment of not more shore patrolman, security patrolman, than 30 days, or suspension or revoca- fireman, officer of the day, junior offi- tion of his privilege to drive a motor cer of the day, or other public official vehicle aboard U.S. Naval Air Facility, authorized to issue a warrant of arrest Midway Island, or any combination of, or make an arrest, that a crime has or all of, these punishments. been committed, or make any oral or written statement to any of the above § 762.44 Contempt. officials concerning a crime or alleged Judges of the Midway Islands Court crime or other matter, knowing such may, in any criminal case or proceed- report or statement to be false. ing, punish any person for disobedience [41 FR 29672, July 19, 1976, as amended at 51 of any order of the court, or for any FR 22283, June 19, 1986] contempt committed in the presence of the court, by a fine of not more than § 762.35 Attempt. $100, or imprisonment of not more than (a) A person is guilty of attempt to 30 days, or both. commit a crime if he commits an act, done with the specific intent to com- Subpart D—Midway Islands Court; mit an offense, amounting to more Rules of Criminal Procedure than mere preparation and tending, even though failing, to effect its com- § 762.50 Establishment; members; ses- mission. sions. (b) It shall be unlawful for any per- (a) There is created a ‘‘Midway Is- son, while on the Midway Islands to at- lands Court’’ which is vested with the tempt to violate any section of subpart judicial authority provided in this part C, including all offenses adopted from 762. The court shall consist of such title 37, ‘‘Hawaii Revised Statutes,’’ as Navy judge advocates as are designated they now appear or as they may be by the Officer–in–Charge, U.S. Naval amended or recodified. Any person con- Air Facility, Midway Island, or such victed of an attempt to commit an of- other command as may be designated
462
VerDate 25
by the Commander in Chief, U.S. Pa- shall be construed to ensure simplicity cific Fleet. In the absence of an ap- in procedure and fairness in adminis- pointment to the contrary, the most tration, and to eliminate unjustifiable senior in date of rank of those ap- expenses and delay. pointed shall act as senior judge. (b) The judge of the court who pre- (b) The Senior Judge shall appoint sides at any trial or other criminal pro- someone under his authority to act as ceeding is responsible for the making Clerk of the Court who will be respon- of an appropriate record of the proceed- sible for maintaining a public docket ing. containing such information as the Senior Judge may prescribe. § 762.58 Release prior to trial and bail. (c) Sessions of the court are held on (a) The release of any person arrested the Midway Islands at times and places on the Midway Islands for a violation designated by the Senior Judge. of this part shall be in accordance with (d) Normally, not more than one 18 U.S.C. 3146 as it now appears or as it judge shall be required to hear any in- may be amended or recodified. dividual case. (b) When an offense has been charged [41 FR 29672, July 19, 1986, as amended at 51 by a citation issued by a security pa- FR 22283, June 19, 1986] trolman, shore patrolman, or other duly designated peace officer or the Of- § 762.52 Attorney for the United States. ficer–in–Charge, U.S. Naval Air Facil- The Senior Judge may appoint any ity, Midway Island, bail shall be set in judge advocate or attorney to rep- the amount prescribed by the Senior resent the United States in any crimi- Judge for the violation. The bail shall nal case in the Midway Islands Court be paid in cash to the Clerk of the or on appeal to the Commander, U.S. Court. The bail may be forfeited by the Naval Base, Pearl Harbor or such other accused and the proceedings thereby command as may be designated by the terminated in the case of a violation of Commander in Chief, U.S. Pacific § 762.28 that does not involve a moving Fleet. vehicle collision or intoxication while driving, or with permission of the court § 762.54 Criminal jurisdiction. in the case of any other offense charged The Midway Islands Court has juris- by citation pursuant to § 762.84. diction over all petty offenses and [41 FR 29672, July 19, 1976, as amended at 51 other minor violations of this part. The FR 22283, June 19, 1986] United States District Court for the District of Hawaii shall have jurisdic- § 762.62 Information. tion over all other offenses adopted (a) Any petty offense may be pros- under § 762.16, over offenses against the ecuted by a written information signed laws of the United States, and over by the attorney charged with prosecut- those offenses committed within the ing the case. If, however, the offense is special maritime jurisdiction con- one for which issue of a citation is au- tained in the Act of June 15, 1950 (chap- thorized by this part and a citation for ter 253, 64 Stat. 217). the offense has been issued, the cita- tion serves as the information. Offenses § 762.55 Venue. against the laws of the United States, Trial of all offenses under the juris- offenses committed against the laws diction of the Midway Islands Court made applicable by the Act of June 15, shall be had at the U.S. Naval Air Fa- 1950 (chapter 253, 64 Stat. 217), and of- cility, Midway Island; trial of all other fenses adopted under § 762.16, except offenses shall be in the United States those which are subject, under title 37, District Court for the District of Ha- ‘‘Hawaii Revised Statutes,’’ as it now waii. appears or as it may be amended or re- codified, to a penalty of imprisonment § 762.56 Rules of criminal procedure. for six months or less or a fine of not (a) Sections 762.56 through 762.79 gov- more than $500, or both, shall be re- ern the procedure in criminal proceed- ferred to the United States Attorney, ings in the Midway Islands Court. They Hawaii, for appropriate disposition.
463
VerDate 25
(b) A copy of the information shall be the record of the case the plea made to delivered to the accused or his counsel each charge. as soon as practicable after it is filed. (d) The accused may plead ‘‘guilty’’ (c) Each count of an information may to any or all of the charges against charge one offense only and must be him, except that the court may at its particularized sufficiently to identify discretion refuse to accept a plea of the place, the time, and the subject guilty, and may not accept a plea with- matter of the alleged offense. It shall out first determining that the plea is refer to the provision of law under made voluntarily and with understand- which the offense is charged, but any ing of the nature of the charge. error in this reference or its omission (e) The accused may plead ‘‘not may be corrected by leave of court at guilty’’ to any or all of the charges any time before sentence and is not against him. The court shall enter a grounds for reversal of a conviction if plea of not guilty if the answer of the the error or omission did not mislead accused to any charge is such that it the accused to his prejudice. does not clearly amount to a plea of guilty or not guilty. § 762.64 Motions and pleas. (f) The accused may, at any stage of the trial, with the consent of the court, (a) Upon motion of the accused at change a plea of not guilty to one of any time after filing of the information guilty. The court shall then proceed as or copy of citation, the court may if the accused had originally pleaded order the prosecutor to allow the ac- guilty. cused to inspect and copy or photo- (g) Nothing contained in this subpart graph designated books, papers, docu- shall be construed to diminish any ad- ments, or tangible objects obtained ditional rights afforded military per- from or belonging to the accused, or sonnel under the Uniform Code of Mili- obtained from others by seizure or tary Justice. process, upon a showing that the items sought may be material to the prepara- § 762.66 Trial. tion of his defense and that the request (a) If the accused pleads not guilty or is reasonable. if a plea of guilty is not accepted by (b) When the court is satisfied that it the court and a consequent plea of not has jurisdiction to try the accused as guilty entered, the accused is entitled charged, it shall require the accused to to a trial on the charges in accordance identify himself and state whether or with the procedures prescribed in the not he has counsel. If he has no coun- Rules of Criminal Procedure for the sel, but desires counsel, the court shall United States District Courts, 18 give him a reasonable opportunity to U.S.C., except as otherwise provided in procure counsel. If he cannot afford this part. There is no trial by jury for counsel or is unable to procure counsel petty offenses. after reasonable efforts have been ex- (b) All persons shall give their testi- pended, the court shall advise him of mony under oath or affirmation. The his right to have counsel appointed, Senior Judge shall prescribe the oath and shall appoint a judge advocate or and affirmation that may be adminis- other lawyer counsel for the accused tered by any judge or the Clerk of the unless the accused shall have made a Court. voluntary and intelligent waiver of his (c) Upon completion of the trial, the right to counsel. court shall enter a judgment consisting (c) When both sides are ready for ar- of a finding or findings and sentence or raignment, or when the court deter- sentences, or discharge of the accused. mines that both sides have had ade- quate opportunity to prepare for ar- § 762.68 Sentence. raignment, the court shall read the (a) If the court accepts a plea of charges to the accused, explain them guilty to any charge or charges, it (if necessary), and, after the reading or shall make a finding of guilty on that stating of each charge in court, ask the charge. accused whether he pleads ‘‘guilty’’ or (b) After a finding of guilty is made, ‘‘not guilty.’’ The court shall enter in either by virtue of an accepted plea of
464
VerDate 25
guilty or as the verdict of the court thereof to be inspected by the parties after trial, the court: and their representatives. (1) May delay sentencing pending re- (c) Any peace officer or any other ceipt of any presentencing report or- person who is not a party and who is at dered by it; least 18 years of age may serve a sub- (2) Shall, before imposing sentence, poena. Service of a subpoena shall be hear such statements, whether written made by delivering a copy thereof to or oral, by the prosecution and defense, the person named. if any, in regards to mitigation, ex- (d) This section shall in no way be tenuation, previous good character of construed to limit federal subpoena the accused, matters in aggravation, powers, laws, or rules. and permissible evidence of bad char- § 762.72 Appeals. acter of the accused. In this regard, the accused or his counsel may introduce (a) The defendant in any criminal any reasonable statement he wishes in case may appeal from any judgment of mitigation or extenuation or any evi- the Midway Islands Court to the Com- dence of previous good character. The mander, U.S. Naval Base, Pearl Harbor, prosecution may introduce evidence in or such other command as may be des- aggravation including prior federal, ignated by the Commander in Chief, state, or Midway Islands convictions. U.S. Pacific Fleet, by filing a notice of The prosecution may introduce evi- appeal with the Senior Judge, and serv- dence of previous bad character only if ing a copy on the attorney or judge ad- the accused has introduced evidence of vocate who represented the United previous good character; and States at trial. (b) The notice must be served and (3) Shall thereafter impose any law- filed within 15 days after the judgment ful sentence, including, a suspended or of the Midway Islands Court. partially suspended sentence; revoca- (c) Upon receiving a notice of appeal, tion or suspension of any Midway Is- with proof of service on the attorney or lands automobile, truck, motorcycle, judge advocate who represented the or other motor vehicle, or boat or United States at trial, the Senior other vessel permit in cases involving Judge shall forward the record of the violations of § 762 28; or placement of case to the Commander, U.S. Naval accused on probation. Base, Pearl Harbor. (d) The appellant must serve and file § 762.70 Subpoenas. a memorandum with the Commander, (a) The Clerk of the Court shall issue U.S. Naval Base, Pearl Harbor, within subpoenas for the attendance of wit- 10 days after filing notice of appeal set- nesses. The subpoena must include the ting forth the grounds for appeal. The name of the court and the title, if any, attorney or judge advocate who rep- of the proceeding, and shall command resented the United States at trial may each person to whom it is directed to file a reply memorandum within 10 attend and give testimony at the time days thereafter. and place specified therein. The clerk (e) The Commander, U.S. Naval Base, shall issue a subpoena to a party re- Pearl Harbor, may affirm, dismiss, or questing it, setting forth the name of modify the order of the court, or exer- the witness subpoenaed. cise any of the other powers of the (b) The clerk may also issue a sub- court. The judgment of the Com- poena commanding the person to whom mander, U.S. Naval Base, Pearl Harbor, it is directed to produce the books, pa- is final. pers, documents, or other objects des- (f) Cases tried in the United States ignated therein. The court may direct District Court for the District of Ha- that books, papers, and documents des- waii shall be subject to federal laws ignated in the subpoena be produced and rules applicable to appeals. before the court at a time before the trial or before the time when they are § 762.74 New trial. to be offered in evidence. It may, upon A judge of the court may order a new their production, allow the books, pa- trial as required in the interest of jus- pers, documents, or objects or portions tice, or vacate any judgment and enter
465
VerDate 25
a new one, on motion made within a fore answering any questions; that he reasonable time after discovery by the may employ civilian counsel of his own moving party of matters constituting choice and at his own expense; that if the grounds upon which the motion for he cannot afford a lawyer, or is a serv- a new trial or vacation of judgment is ice member, the court will appoint one made. for him if he so desires; and that, if he decides to answer questions, he has the Subpart E—Warrants; Arrests; right to stop answering at any time Special Procedures and terminate the interrogation. Be- fore any security patrolman, shore pa- § 762.80 Warrants. trolman, or other duly designated (a) Arrest warrants. (1) Any judge of peace officer questions any person ar- the Midway Islands Court may issue a rested, he must advise the arrested per- warrant for arrest if, upon complaint, son of his rights, as set forth above, it appears that there is probable cause whether such questioning occurs before to believe an offense has been commit- or after the arrested person is brought ted and that the person named in the before the appropriate official as des- warrant has committed it. Probable ignated above in this section. No warn- cause, as used herein, means that there ings need be given, however, prior to exist facts which are sufficient to lead general on-the-scene questioning or a reasonably prudent and cautious man identification inquiries. to a natural conclusion that the person (b) Search warrants. (1) Any judge of to be arrested committed the offense the Midway Islands Court may issue a for which he is to be arrested. The warrant for search and seizure, if, after issuing officer shall: dispassionate and impartial consider- (i) Place the name of the person ation of all evidence, information, and charged with the offense in the war- circumstances involved, probable cause rant, or, if his name is not known, any is deemed to exist. Probable cause, as name or description by which he can be used herein, means reliable informa- identified with reasonable certainty; tion that would lead a reasonably pru- (ii) Sign the warrant; dent and cautious man to a natural be- (iii) Describe in the warrant the of- lief that: fense charged; (i) An offense probably is about to be, (iv) Issue the warrant to a security is being, or has been committed; patrolman, shore patrolman, or other (ii) Specific fruits or instrumental- duly designated peace officer for execu- ities of the crime, contraband, or evi- tion; and dence exist; and (v) Place in the warrant a command (iii) Such fruits, instrumentalities, that the person charged with the of- contraband, or evidence are probably in fense be arrested and brought before a certain place. him. (2) If, after considering all informa- (2) Each person making an arrest on tion, the judge shall decide to issue a the Midway Islands shall take the ar- search warrant, such warrant shall spe- rested person, without unnecessary cifically include the following informa- delay, before the Officer–in–Charge, tion: U.S. Naval Air Facility, Midway Is- land, or a judge of the Midway Islands (i) The time and date the warrant Court, as appropriate. was requested; (3) The official before whom an ar- (ii) The name and capacity of the per- rested person is brought shall inform son, official, security patrolman, shore him of the complaint against him. The patrolman, or other duly designated official shall also advise the arrested peace officer requesting the warrant; person that he has the right to remain (iii) The name and address of the per- silent and make no statement; that son(s) suspected and the specific of- any statement made, whether oral or fense(s) of which he is suspected; written, may be used against him, that (iv) The address, place, or structure he has the right to consult with a law- which is to be searched; yer and to have a lawyer with him dur- (v) The general nature of the items ing questioning and to seek advice be- intended to be seized;
466
VerDate 25
(vi) The information presented or (i) The time and date the warrant reasons for suspecting the suspected was requested; person(s) in general; and (ii) The name and capacity of the per- (vii) An authorization to search the son requesting the warrant; described place for the property speci- (iii) Property description or address fied and, if the property is found there, of place or structure to be inspected; to seize it, followed by the date, time, (iv) General purpose of inspection; capacity, and signature of the judge (v) Date and time inspection intended issuing such warrant. to be made; and (3) A search warrant must be exe- (vi) An authorization to inspect the cuted and returned to the issuing au- described place for the purpose speci- thority within five days after date of fied, followed by the date, time, capac- issuance. A search warrant executed ity, and signature of judge issuing the within the five-day period shall be warrant. deemed to have been timely executed [41 FR 29672, July 19, 1976, as amended at 51 and no further showing of timeliness FR 22283, June 19, 1986] need be made. (4) Security patrolmen, shore patrol- § 762.82 Arrests. men, and other duly designated peace (a) Any person may make an arrest officers or other designated personnel on the Midway Islands, without a war- conducting searches shall do so in ac- rant, for any crime (including a petty cordance with the issued warrant. offense) that is committed in his pres- (5) Any property seized as a result of ence. a search or in connection with an al- (b) Any security patrolman, shore pa- leged offense (unless property is highly trolman, or other duly designated perishable) is to be retained in a secure peace officer may, without a warrant, place pending trial in accordance with arrest any person on the Midway Is- the orders of the court. All seized prop- lands who violates any provision of erty shall be securely tagged with the this part 762 or commits a crime that is following information: a violation of the laws of the United (i) Date seized; States or the laws made applicable to the Midway Islands under the Act of (ii) Property searched and location of June 15, 1950 (chapter 253, 64 Stat. 217), seized article(s) when so seized; in his presence, or that he has probable (iii) Person ordering search and war- cause to believe that person to have rant number; committed. (iv) Signatures of person searching (c) In making an arrest, a security and witness; and patrolman, shore patrolman, or other (v) Place where property is now lo- duly designated peace officer must dis- cated and names and addresses of any play a warrant, if he has one, or other- persons who have had custody thereof wise clearly advise the person arrested prior to deposit in the secure place re- of the violation alleged, and thereafter quired by this paragraph. A complete require him to submit and be taken be- chain of custody record is to be kept. fore the appropriate official on the (6) The property must be produced in Midway Islands. court, if practicable. At the termi- (d) In making an arrest, a security nation of the trial, the court shall re- patrolman, shore patrolman, or other store the property or the funds result- duly designated peace officer may use ing from the sale of the property to the only the degree of force needed to ef- owner, or make such other proper order fect submission, and may remove any as may be required and incorporate its weapon in the possession of the person order in the record of the case. arrested. (c) Sanitation and fire prevention in- (e) A security patrolman, shore pa- spection. (1) Any judge of the Midway trolman, or other duly designated Islands Court may issue a warrant to peace officer may, whenever necessary inspect property on the Midway Islands to enter any building, vehicle, aircraft, for purposes of maintaining sanitation or vessel to execute a warrant of ar- and fire prevention. rest, force an entry after verbal warn- (2) Such warrant shall indicate: ing.
467
VerDate 25
(f) A security patrolman, shore pa- Subpart F—Registration and Permit trolman, or other duly designated Regulations peace officer may force an entry into any building, vehicle, aircraft, or ves- § 762.90 Registration of certain prop- sel whenever: erty. (1) It appears necessary to prevent se- (a) Each person who has custody of rious injury to persons or damage to any of the following on the Midway Is- property, and time does not permit the lands shall register it with the Officer– obtaining of a warrant; in–Charge: (2) To effect an arrest when in hot (1) A privately owned motor vehicle; pursuit; or (2) A privately owned boat; (3) To prevent the commission of a (3) An animal; crime which he reasonably believes is (4) Any device, weapon, or instru- being committed or is about to be com- ment designed for inflicting bodily in- mitted. jury, including a gun, pistol, or other firearm operated by air, gas, spring, or § 762.84 Citation in place of arrest. otherwise; In any case in which a security pa- (5) Any narcotic or dangerous drug trolman, shore patrolman, or other not obtained on prescription, and all duly designated peace officer may poisons other than commonly used make an arrest without a warrant, he household poisons or toxic substances; may, under such limitations as the Of- or ficer–in–Charge may impose, issue and (6) Any known explosive. serve a citation, or serve a citation (b) Each person who obtains custody issued by the Officer–in–Charge, on a of an article described in paragraphs person in place of arresting him if the (a)(4), (5), or (6) of this section shall officer considers that the public inter- register it immediately upon obtaining est does not require an arrest. The ci- custody. Each person who obtains cus- tation must briefly describe the offense tody of any other article described in charged and direct the accused to ap- paragraph (a) of this section shall reg- pear before the Midway Islands Court ister it within 10 days after obtaining at a designated time and place. custody. [41 FR 29672, July 19, 1976, as amended at 51 [41 FR 29672, July 19, 1976, as amended at 51 FR 22283, June 19, 1986] FR 22283, June 19, 1986]
§ 762.86 Abatement of nuisance. § 762.92 Permits. Whenever the Officer–in–Charge de- Subject to reasonable restrictions termines that, on any premises on the and conditions that he considers appro- Midway Islands, a condition exists that priate, the Officer–in–Charge, U.S. is unsanitary or hazardous, that may Naval Air Facility, Midway Island, may require a Midway Islands permit be injurious to the public, or is other- for the following: wise a nuisance, he may order the con- dition abated. If the legal custodian of (a) Any business, commercial, or rec- reational activity conducted for profit, the premises concerned does not take including a trade, profession, calling, action to abate the nuisance within 30 or occupation, or an establishment days after the order is issued, the Offi- where food or beverage is prepared, of- cer–in–Charge may enter on the prem- fered, or sold for human consumption ises and abate the nuisance for, and at (except for personal or family use); the expense of, the custodian. (b) The practice of any medical pro- [41 FR 29672, July 19, 1976, as amended at 51 fession, including dentistry, surgery, FR 22283, June 19, 1986] osteopathy, and chiropractic;
468
VerDate 25
(c) The erection of any structure or § 762.96 Revocation or suspension of sign, including a major alteration or permits. enlargement of an existing structure; (a) The Officer–in–Charge may, after (d) The discharge of explosives or notifying the holder of a Midway Is- fireworks or of firearms, guns, or pistol lands permit and giving him an oppor- operated by air, gas, spring, or other- tunity to be heard, order the permit wise, or any other weapon; suspended or revoked for cause, includ- (e) The burial of any human or ani- ing: mal remains, except that fish and bait (1) Lack of physical fitness required scrap may be buried at beaches where to hold the permit; fishing is permitted without obtaining (2) Lack of roadworthiness of a vehi- a permit; cle, or of seaworthiness of a boat or (f) Keeping or maintaining any ani- other vessel; mal, including dogs; (3) Lack of need for the permit; (g) All vehicles (including bicycles), (4) Breach of any term or condition of and operators thereof, except aircraft. the permit; or The operator of a vehicle shall display (5) Conviction for violation of any his permit or permit number on the ve- regulation of this part where the viola- hicle in a place and manner prescribed tion is related to activities conducted by the Officer–in–Charge; under the permit. (h) Boats and boat operators. The op- (b) In any case in which he deter- erator of a boat or other vessel shall mines that an emergency exists requir- display his permit or permit number on ing immediate action, the Officer–in– or in the vessel in a place and manner Charge may issue an order of suspen- prescribed by the Officer–in–Charge; sion or revocation, effective imme- (i) Food handlers; diately, without notice. However, the (j) Drugs and narcotics not obtained permit holder may, within 10 days after on prescription, and poisons other than the suspension or revocation, request a commonly used household poisons or hearing. If he so requests a hearing, he toxic substances; or is entitled to it. The emergency order (k) Building construction. is not stayed pending hearing. [41 FR 29672, July 19, 1976, as amended at 51 [41 FR 29672, July 19, 1976, as amended at 51 FR 22283, June 19, 1986] FR 22283, June 19, 1986] § 762.94 Expiration of permits. Subpart G—Civil Small Claims Law (a) Each Midway Islands permit ex- pires on the earliest of the following § 762.100 Applicable law and jurisdic- dates: tion over small claims. (1) Two years after the date it is (a) The Midway Islands Court shall issued; have jurisdiction over civil cases for (2) The date specified on the permit; the recovery of money only where the (3) In the case of a motor vehicle, amount claimed does not exceed $500 boat, or other vessel, or firearm, the exclusive of the interest and costs ex- date its custody is transferred to any cept as provided by § 762.108. person other than the holder of the per- (b) The court’s jurisdiction is further mit therefor; or limited in that no such claim cog- (4) The date it is revoked by the Offi- nizable under paragraph (a) of this sec- cer–in–Charge. tion shall be within the court’s juris- (b) Notwithstanding paragraph (a)(1) diction unless: of this section, the Officer–in–Charge (1) The claim arises or has arisen on may issue a permit for a period longer the Midway Islands; than two years to coincide with the (2) All plaintiffs and all defendants terms of any agreement between the reside, at the time of trial, on the Mid- Department of the Navy and the per- way Islands; and mit holder, applicable to the Midway (3) The claim does not fall within the Islands. special maritime jurisdiction under the [41 FR 29672, July 19, 1976, as amended at 51 Act of June 15, 1950 (Chapter 253, 64 FR 22283, June 19, 1986] Stat. 217).
469
VerDate 25
(c) Actions shall be commenced and (e) The statement of claim, verifica- maintained in the Midway Islands tion, and notice shall be in the follow- Court under the procedures set out ing or equivalent form: below and conducted in such a manner as to do substantial justice and equity IN THE MIDWAY ISLANDS SMALL CLAIMS COURT between the parties. When acting on ———————————————————————— such actions, the court shall be termed (Plaintiff) the Small Claims Court. ———————————————————————— (Address)
§ 762.102 Small claims procedure; com- vs. plaint and service. —————————— (a) Actions shall be commenced in ———————————————————————— the court by the filing of a statement (Defendant) of claim, in concise form and free of technicalities. All claims shall be veri- STATEMENT OF CLAIMS fied by the claimant, whether as a (Here the claimant, whether as party party plaintiff or counterclaimant, or plaintiff or counterclaimant, or at his re- by his agent, by oath or affirmation in quest the clerk, will insert a concise state- the form herein provided, or its equiva- ment of the plaintiff’s claim, and the origi- lent. The Clerk of the Court shall, at nal, to be filed with the clerk, may, if action is on a contract, express or implied, be veri- the request of an individual, prepare fied by the plaintiff or his agent, as follows: the statement of claim and other pa- pers required to be filed in an action in THE MIDWAY ISLANDS SS the court, but his services shall not be ———————— being first duly sworn on available to a corporation, partnership, oath says the foregoing is a just and true or association, or to any individual statement of the amount owing by defendant proprietorship in the preparation of the to claimant, whether as party plaintiff or statements or other papers. A copy of counterclaimant, exclusive of all set-offs and the statement of claim and verification just grounds of defense.) ———————————————————————— shall be made a part of the notice to be [Plaintiff (or agent)] served upon the defendant named therein. The mode of service shall be Subscribed and sworn to before me this by personal service, by registered mail, —— day of ———————, 19——. or by certified mail with return re- ———————————————————————— ceipt. ———————————————————————— (b) When notice is to be served by ———————————————————————— registered mail or by certified mail, Clerk (or notary public) the clerk shall enclose a copy of the NOTICE statement of claim, verification, and To: ————————————————————— notice in an envelope addressed to the Defendant defendant, prepay the postage with ———————————————————————— funds obtained from plaintiff, and mail Home address the papers forthwith, noting on the ———————————————————————— records the day and hour of mailing. Business address When the receipt is returned with the You are hereby notified that ———— signature thereon of the party to whom —————————— has made a claim and is addressed, the clerk shall attach it to requesting judgment against you in the sum the original statement of claim, and it of ———————————— dollars ($———), as shown by the foregoing statement. The court shall constitute prima facie evidence of will hold a hearing upon this claim on personal service upon the defendant. —————————— at ——— m. in the Small (c) When notice is served personally, Claims Court at ——————————. the server shall make proof of service ———————————————————————— by affidavit sworn to before the Clerk (Address of court) of the Court or before any notary pub- You are required to be present at the hear- lic, showing the time and place of the ing in order to avoid judgment by default. If you have witnesses, books, receipts, or service. other writings bearing on this claim, you (d) The actual cost of service shall be should bring them with you at the time of taxable as costs. the hearing.
470
VerDate 25
If you wish to have witnesses summoned, the right to proceed further in any case see clerk at once for assistance. pending in the court. If you admit the claim, but desire addi- tional time to pay, you must come to the § 762.108 Set-off or counterclaim; hearing in person and state the cir- pleading; retention of jurisdiction. cumstances to the court. You may come with or without an attor- If the defendant, in an action in the ney. Small Claims Court, asserts a set-off or (Seal) counterclaim, the judge may require a ——————————————————————— formal and concise plea of set-off to be Clerk of the Court filed, or may waive the requirement. If Midway Islands Courts the plaintiff requires time to prepare (f) The foregoing verification entitles his defense against the counterclaim or the plaintiff to a judgment by default, set-off, the judge may continue the without further proof, upon failure of case for that purpose. When the set-off defendant to appear, if the claim of the or counterclaim is for more than the plaintiff is for a liquidated amount. If jurisdictional limit of the Small the amount is unliquidated, the plain- Claims Court, as provided by § 762.100, tiff shall be required to present proof of but is for less than $1000, the action his claim. shall remain in the Small Claims Court (g) The clerk shall furnish the plain- and be tried therein in its entirety. No tiff with a notice of the day and hour set-off or counterclaim for an amount set for the hearing. The hearing shall greater than $1000 may be asserted in not be less than 15 days nor more than the Small Claims Court. 30 days from the date of the filing of the action unless a continuance is § 762.109 Jury trial; demand. granted by the judge for good cause In a case filed or pending in the Mid- shown. All actions filed in the court way Islands Court under § 762.100 in shall be made returnable therein. which a party entitled to a trial by jury under amendment VII, United § 762.104 Time limitations. States Constitution, files a demand All claims must be commenced as set therefor, the case shall be assigned to out in § 762.102, within two years after and tried in the United States District the claim arises. A claim for money Court for the District of Hawaii under arises when it is due, owing, and un- the procedure provided for jury trials paid. in that court.
§ 762.106 Costs and fees; waiver. § 762.110 Pre-trial settlement. The fee for issuing summons and cop- On the return day specified by ies, trial, judgment, and satisfaction in § 762.102(g), or at such later time as the an action in the Small Claims Court judge sets, the trial shall be had. Im- shall be not more than $5. Other fees mediately prior to the trial of a case, shall be as the court prescribes. The the judge shall make an earnest effort judge may waive the prepayment of to settle the controversy by concilia- costs or the payment of costs accruing tion. If no settlement is effected, the during the action upon the sworn judge shall proceed with the hearing on statement of the plaintiff or upon the merits pursuant to § 762.112. other satisfactory evidence of his in- ability to pay the costs. When costs are § 762.112 Trial. so waived the notation to be made on the records of the court shall be ‘‘Pre- (a) The parties and witnesses shall be payment of costs waived’’ or ‘‘Costs sworn. In any case in which the civil waived.’’ The terms ‘‘pauper’’ or ‘‘in rights, powers, and duties of any person forma pauperis’’ may not be employed on the Midway Islands are not other- in the court. If a party fails to pay ac- wise prescribed by the laws of the crued costs, though able to do so, the United States or the laws made appli- judge may deny him the right to file a cable under the Act of June 1950 (chap- new case in the court while the costs ter 253, 64 Stat. 217), the judge shall remain unpaid, and likewise deny him conduct the trial in such manner as to
471
VerDate 25
do substantial justice between the par- therein the reasonable cost of bonds ties according to the rules of sub- and undertakings, and other reasonable stantive law, as contained in the ‘‘Ha- expenses incident to the action, in- waii Revised Statutes,’’ as they now curred by either party. No attorneys’ appear or as they may be amended or fees or commissions shall be allowed or recodified, and Hawaii case law. In this awarded by any judgment of the Small regard, the judge is not bound by statu- Claims Court. tory provisions or rules of practice, procedure, pleading, or evidence, ex- § 762.118 No appeal. cept provisions related to privileged communications. There shall be no appeal from a judg- (b) If the defendant fails to appear, ment of the court, but the court may judgment shall be entered for the alter or set aside any judgment upon plaintiff by default as provided by application of either party after review § 762.102(f), or under rules of court, or of the record. on ex parte proof. If the plaintiff fails to appear, the action may be dismissed § 762.120 Judgment creditors and rem- for want of prosecution, or a nonsuit edies. may be ordered, or defendant may pro- (a) After any final judgment is ren- ceed to trial on the merits, or have de- dered by the court, the judgment debt- fault judgment entered in his favor on or concerned may deposit the sum ad- any counterclaim filed in the manner judged owed with the court for pay- provided herein for a plaintiff, or the ment of the claim, pay the judgment case may be continued or returned to creditor directly, or make such other the files for further proceedings on a fair and reasonable agreement for pay- later date, as the judge directs. If both ment or settlement of the claim with parties fail to appear, the judge may the judgment creditor. Payment, in return the case to the files, or order full or by agreement or settlement be- the action dismissed for want of pros- tween the parties after final judgment ecution or make any other disposition has been rendered, shall satisfy the thereof as justice requires. (c) Notwithstanding any provision of judgment and extinguish the claim. law requiring the licensing of practi- (b) If voluntary payment is not made tioners, any person may, with the ap- by the judgment debtor after final proval of the court, appear on behalf of judgment is rendered, in an action pur- himself or another in the Small Claims suant to §§ 762.100 through 762.113, the Court. The services of an unlicensed judge shall, upon motion of the party person appearing under this paragraph obtaining judgment, order the appear- shall be without compensation, either ance of the party against whom the by way of direct fee, contingent fee, or judgment has been entered, but not otherwise. more often than once each week for (d) The judge of the court who pre- four consecutive weeks, for oral exam- sides at any trial is responsible for the ination under oath as to his financial making of an appropriate record of the status and his ability to pay the judg- proceeding. ment, and the judge shall make such supplementary orders as seems just § 762.114 Judgments. and proper to effectuate the payment After trial, the judge may imme- of the judgment upon reasonable diately render his decision and enter terms. judgment or take the case under sub- (c) Any final judgment of the Small mission. In all cases, the judge should Claims Court shall upon order of the render a decision and enter appropriate court become a statutory lien upon any judgment within 20 days after the close of the trial. and all personal property owned by the judgment debtor concerned and located § 762.116 Award of costs. on the Midway Islands. Such lien may In any action pursuant to this sub- be enforced by attachment, levy, judi- part the award of costs is in the discre- cial sale, or as the court may otherwise tion of the court, which may include direct.
472
VerDate 25
§ 762.126 Parties. SOURCE: 47 FR 27553, June 25, 1982, unless otherwise noted. Wherever the term party or parties appears herein, or any reference is made to individuals desiring to present Subpart A—Entry Regulations for a claim, then such term or terms of ref- Kaho’olawe Island, Hawaii erence shall mean and include a party defendant having a counterclaim, off- § 763.1 Purpose. set, or crossclaim to present in the ac- The purpose of this subpart is to pro- tion. mulgate regulations for entry to Kaho’olawe Island, Hawaii, and its ad- § 762.128 Forms and public informa- jacent waters. tion. The Midway Islands Court shall § 763.2 Definition. cause to be published an information For the purpose of this subpart, booklet or sheet describing, in lan- Kaho’olawe Island includes that por- guage readily understandable by a lay- tion reserved for naval purposes by Ex- man, the procedures of the Small ecutive Order No. 10436 of February 20, Claims Court, the remedies available 1953. upon judgment in the Small Claims Court, and such other information as § 763.3 Background. will facilitate the utilization of the (a) Kaho’olawe Island is used by the small claims procedure; and shall also armed forces of the United States as a cause to be made and printed such training area including bombing and standardized forms as may be utilized gunnery training ranges under author- throughout the small claims procedure prior to, upon, and after judgment. ity granted by Executive Order No. 10436. Training operations frequently involve the use of live ordnance, creat- Subpart H—Savings Clause ing an obvious danger to persons on or near the island. Moreover, a large § 762.130 Severability of subparts, sec- amount of unexploded ordnance is tions, paragraphs, or provisions. present on Kaho’olawe Island and in In the event that any subpart, sec- adjacent waters. tion, paragraph, or provision of this (b) Individuals who enter the island part shall be declared unconstitutional of Kaho’olawe without authority ex- or superseded by applicable federal leg- pose themselves to extremely hazard- islation, the remainder shall neverthe- ous conditions. In addition, the pres- less remain valid and shall be applied ence of unauthorized persons on so as to be consistent with such con- Kaho’olawe Island or in adjacent wa- stitutional provisions or overriding ters is likely to interfere with the use legislation. of the island for military training. Ac- cordingly, it is necessary to prohibit PART 763—RULES GOVERNING entry to Kaho’olawe Island except PUBLIC ACCESS under the controlled circumstances set forth in this subpart. Subpart A—Entry Regulations for Kaho’olawe Island, Hawaii § 763.4 Entry restrictions.
Sec. (a) Entry by any person upon 763.1 Purpose. Kaho’olawe Island for any purpose is 763.2 Definition. prohibited without advance authoriza- 763.3 Background. tion from Commander Naval Base. This 763.4 Entry restrictions. prohibition applies to all areas of 763.5 Entry procedures. Kaho’olawe Island reserved for naval 763.6 Violations. purposes by Executive Order 10436. (b) Entry by any person into the re- AUTHORITY: 50 U.S.C. 797; DOD Dir. 5200.8 of August 20, 1954; 5 U.S.C. 301; 10 U.S.C. 6011, 32 stricted waters adjacent to Kaho’olawe CFR 700.702; 32 CFR 700.714; E.O. No. 10436, 3 Island for any purpose is prohibited CFR 1949–1953 Comp. p. 930, (1958). without advance authorization from
473
VerDate 25
Commander Naval Base. This prohibi- authorizes one visit only, and shall not tion applies to all waters described in be construed as authorization for more 33 CFR 204.223(4). than one entry unless the authoriza- [47 FR 27553, June 25, 1982, as amended at 52 tion itself specifically states otherwise. FR 20074, May 29, 1987] Moreover, entry pursuant to advance consent, which is not in accordance § 763.5 Entry procedures. with the terms and conditions per- (a) It is the policy of the Commander mitted by Commander Naval Base, Naval Base to authorize, in accordance shall be deemed a violation of this sub- with the spirit of the American Indian part. Religious Freedom Act (1978), reason- (c) For safety reasons, it is not Com- able access to Kaho’olawe Island dur- mander Naval Base policy to permit ing periods when it is not used for mili- children below the age of 15 access to tary training. However, because there Kaho’olawe Island. are bombs and other explosives on and (d) The following safety regulations under the surface and in the waters of are applicable to visitors to the island, and because there are sig- Kaho’olawe Island: nificant archaeological resources (1) All visitors to the island are re- thereon (in 1981, the island was placed quired to execute and submit a waiver on the National Register of Historical of government liability form to a des- Places as an Archaeological District), ignated Navy representative prior to Navy representatives accompany each arrival at the island. island visitation to safeguard both the (2) Visitors to the island will be es- vistitor(s) and the island’s archaeologi- corted by Navy designated Explosive cal resources. In this regard, in order Ordnance Disposal (EOD) technicians to ensure the safety of visitors to the to ensure that they stay on cleared island and its archaeological resources, paths, avoid impact areas, and do not persons and organizations wishing ac- touch high explosives. For visitor safe- cess to Kaho’olawe Island must comply ty, the directions of the military es- with the following appropriate proce- corts must be followed. dures: Civilians (except authorized U.S. (3) No person will interfere with any and State representatives) must: EOD escort in the performance of his (1) Request, in writing, access au- duties. thorization from Commander Naval (4) Any actual or suspected ordnance Base (Code 01K), Pearl Harbor, Hawaii found by a visitor shall be reported to 96860, at least 15 days prior to the ac- the Special Assistant for Kaho’olawe as cess requested, providing therein con- soon as possible. If he is not in the vi- firmed access plans (including the cinity, a description and location of exact number of visitors, time, and lo- the ordnance should be provided to the cation of access, designation of person nearest EOD technician. Everyone, in charge, and any other pertinent in- other than EOD personnel, shall re- formation); and main clear of any ordnance found. (2) Submit to Commander Naval Base (5) Only the qualified EOD techni- (at the aforementioned address) prop- cians shall touch, examine, remove, at- erly endorsed Standard Liability Re- tempt to remove, handle either di- lease Form (obtainable from Com- rectly or indirectly, or detonate any mander Naval Base), for each access ordnance, whether found on the sur- participant, at least five (5) days prior face, beneath the surface or in the wa- to the requested access. ters surrounding Kaho’olawe. (b) In evaluating each request, the (6) Any proposed hike and procession factors just enumerated will be route shall be provided to the Special weighed against training commit- Assistant for Kaho’olawe (or his des- ments, safety requirements, specical ignated representative) for approval projects, and the amount and cost of and escort coordination at least twen- military supervision necessitated by a ty-four hours in advance of the planned granting of the request. Requests for event. Deviation from approved routes entry will be considered on an individ- will not be allowed. Proposed camp- ual basis. If a request is granted, the sites for overnight hikes shall be simi- permission to enter Kaho’olawe Island larly provided to, and approved by, the
474
VerDate 25
Special Assistant for Kaho’olawe or his (12) Individuals failing to abide by designated representative. these safety guidelines will be pre- (7) No person shall move about the is- cluded from future visitations. land after sunset unless a bonafide emergency situation arises. The senior [47 FR 27553, June 25, 1982, as amended at 52 Naval officer present shall be imme- FR 20074, May 29, 1987; 52 FR 45455, Nov. 30, diately notified in case of such emer- 1987] gency. § 763.6 Violations. (8) No person shall commit any of- fense proscribed by either Federal law (a) Any person who violates this sub- or the State of Hawaii Penal Code, as part is subject to prosecution under 18 incorporated under the Federal Assimi- U.S.C. 1382, which provides in relevant lative Crimes Act, while on the island part: of Kaho’olawe. Any individual who vio- lates any provisions of these penal Whoever * * * goes upon any * * * naval codes may be prosecuted by the Fed- * * * reservation * * * for any purpose pro- hibited by law or lawful regulation * * * eral Government and/or barred from shall be fined not more than $500 or impris- any future access to Kaho’olawe. oned not more than six months, or both. (9) No person shall deface, alter, re- move, spoil, or destroy any archeologi- (b) Additionally, persons who violate cal object, feature, or site on the is- this Subpart are subject to prosecution land. under the Internal Security Act of 1950 (10) Children shall remain with their (50 U.S.C. 797), violations of which may parents at all times while on the is- result in a maximum penalty of impris- land. onment for one year, or a fine of $5,000 (11) Visitors are responsible for re- or both. moving their own trash from the is- land.
475
VerDate 25
PART 765—RULES APPLICABLE TO thorities. The receipt of Absentee THE PUBLIC Wanted by the Armed Forces (DD Form 553) or oral or written notification Sec. from military officials or Federal law 765.1–765.5 [Reserved] enforcement officials that the person is 765.6 Regulations for Pearl Harbor, Hawaii. absent and that his return to military 765.9–765.11 [Reserved] control is desired is authority for ap- 765.12 Navy and Marine Corps absentees; re- prehension and will be considered as an wards. offer of a reward. When such a reward 765.13 Insignia to be worn on uniform by has been offered, persons or agency rep- persons not in the service. resentatives (except salaried officers or 765.14 Unofficial use of the seal, emblem, employees of the Federal Government, names, or initials of the Marine Corps. or service members) apprehending or AUTHORITY: Secs. 5031, 6011, 70A Stat. 278, delivering absentees or deserters to 375, as amended, sec. 133, 76 Stat. 517, sec. 301, military control will be entitled to a 80 Stat. 379; 5 U.S.C. 301, 10 U.S.C. 133, 5031, payment of 6011, 7881. (i) $50 for the apprehension and de- tention until military authorities as- §§ 765.1–765.5 [Reserved] sume control, or § 765.6 Regulations for Pearl Harbor, (ii) $75 for the apprehension and de- Hawaii. livery to military control. The Commander, U.S. Naval Base, Payment of reward will be made to the Pearl Harbor, Hawaii, is responsible for person or agency representative actu- prescribing and enforcing such rules ally making the arrest and the turn- and regulations as may be necessary over or delivery to military control. If for insuring security and for governing two or more persons or agencies join in the navigation, movements, and an- performing these services, payment chorage of vessels in the waters of may be made jointly or severally but Pearl Harbor and in the entrance chan- the total payment or payments will nel thereto. not exceed $50 or $75 as applicable. Pay- ment of a reward is authorized whether (Sec. 1, 37 Stat. 341, 62 Stat. 799; 18 U.S.C. the absentee or deserter voluntarily 2152, 33 U.S.C. 475; E.O. 8143, 4 FR 2179, 3 CFR surrenders to civil authorities or is ap- 1943 Cum. Supp. 504) prehended. Payment is not authorized [31 FR 16620, Dec. 29, 1966] for information merely leading to the apprehension of an absentee or de- §§ 765.9–765.11 [Reserved] serter. (2) Payment procedure. The disbursing § 765.12 Navy and Marine Corps absen- officer, special disbursing agent or tees; rewards. agent officer of the military activity to The following is set forth as it ap- which an absentee or deserter is first plies to Navy and Marine Corps absen- delivered will be responsible for pay- tees. The term ‘‘absentee,’’ as used in ment of the reward. Payment of re- this section, refers to a service member wards will be made on NAVCOMPT who commits the offense of absence Form 2277 supported by a copy of DD without leave. Cf. article 86 of the Uni- Form 553 or other form or notification form Code of Military Justice (10 that an individual is absent and that U.S.C. 886). his return to military control is de- (a) Payment of rewards—(1) Authority. sired, and a statement signed by the When authorized by military officials claimant specifying that he appre- of the Armed Forces, any civil officer hended (or accepted voluntary surren- having authority to arrest offenders der) and detained the absentee or de- may apprehend an individual absent serter until military authorities as- without leave from the military serv- sumed control, or that he apprehended ice of the United States and deliver (or accepted voluntary surrender) and him into custody of the military au- delivered the absentee or deserter to
476
VerDate 11
military control. If oral notification (2) Payment procedure. The disbursing was made in lieu of written notifica- officer or special disbursing agent of tion, the claimant will so certify and the military activity to which an ab- provide the date of notification and the sentee or deserter is first delivered will name, rank or rate, title, and organiza- be responsible for making reimburse- tion of the person who made the au- ment for actual expenses. Reimburse- thorized notice of reward for apprehen- ment will be effected on NAVCOMPT sion of the absentee or deserter. Form 2277 supported by an itemized (b) Reimbursement for actual expenses— statement in triplicate signed by the (1) Authority. When a reward has not claimant and approved by the com- been offered or when conditions for manding officer. payment of a reward otherwise cannot (c) Reimbursement for subsistence fur- be met, reimbursement, not to exceed $75, may be made to any person or nished—(1) Authority. Civil authorities agency for actual expenses incurred in may be reimbursed for the cost of sub- the apprehension and detention or de- sistence furnished absentees or desert- livery to military control of an absen- ers placed in their custody for safe- tee or deserter. If two or more persons keeping at the request of military au- or agencies join in performing these thorities. Such reimbursement will be services, payment may be made jointly in addition to rewards and reimburse- or severally, but the total payment or ment for actual expenses authorized in payments may not exceed $25. Reim- paragraphs (a) and (b) of this section. bursement may not be made for the (2) Payment procedure. The disbursing same apprehension and detention or de- officer or special disbursing agent of livery for which a reward has been the military activity requesting the paid. Actual expenses for which reim- safekeeping confinement will be re- bursement may be made include: sponsible for making reimbursement (i) Transportation costs, including for subsistence furnished by civil au- mileage at the rate of 20.05 cents per thorities. Reimbursement will be ef- mile for travel by privately owned ve- fected on NAVCOMPT Form 2277 sup- hicle, for a round trip from either the ported by an itemized statement signed place of apprehension or civil police by the claimant and approved by the headquarters to place of return to mili- officer who requested the confinement. tary control; (d) Nothing said in this section shall (ii) Meals furnished the service mem- ber for which the cost was assumed by be construed to restrict or exclude au- the apprehending person or agency rep- thority to apprehend an offender in ac- resentative; cordance with law. (iii) Telephone or telegraph commu- (Sec. 807, 70A Stat. 39; 10 U.S.C. 807. Interpret nication costs; or apply secs. 808, 7214, 70A Stat. 40, 445; 10 (iv) Damages to property of the ap- U.S.C. 808, 7214) prehending person or agency if caused [25 FR 1075, Feb. 6, 1960, as amended at 51 FR directly by the service member during 22283, June 19, 1986] the apprehension, detention, or deliv- ery; § 765.13 Insignia to be worn on uni- (v) Such other reasonable and nec- form by persons not in the service. essary expenses incurred in the actual apprehension, detention, or delivery as (a) Under title 10 U.S.C., section 773, may be considered justifiable and reim- members of military societies com- bursable by the commanding officer. posed of persons discharged honorably Reimbursement will not be made for: or under honorable conditions from the (a) Lodging at nonmilitary confine- United States Army, Navy, Air Force ment facilities; or Marine Corps, regular or reserve, (b) Transportation performed by the may, when authorized by regulations use of official Federal, State, county, prescribed by the President, wear the or municipal vehicles; uniform duly prescribed by such soci- (c) Personal services of the appre- eties to be worn by the members there- hending, detaining, or delivering per- of. son or agency.
477
VerDate 25
(b) The law cited in paragraph (a) of (f) Marine Corps Uniform Regulations this section further provides that in- may be examined and individual copies structors and members of duly orga- of pertinent provisions thereof may be nized cadet corps at certain institu- purchased in accordance with § 701.1 of tions of learning may wear the uniform this chapter. duly prescribed by the authorities of (Sec. 773, 70A Stat. 35; 10 U.S.C. 773) such institutions. [13 FR 8971, Dec. 28, 1948, as amended at 26 (c) The law cited in paragraph (a) of FR 11794, Dec. 12, 1961; 37 FR 6472, Mar. 30, this section further provides that the 1972; 44 FR 37610, June 28, 1979] uniform worn by members of the mili- tary societies or by members and in- § 765.14 Unofficial use of the seal, em- structors of the cadet corps referred to blem, names, or initials of the Ma- in paragraph (a) of this section shall rine Corps. include some distinctive mark or insig- (a) Purpose. To establish procedures nia prescribed by the Secretary of the to determine whether to grant permis- military department concerned to dis- sion to use or imitate the seal, em- tinguish such uniforms from the uni- blem, names, or initials of the Marine forms of the Army, Navy, Air Force, or Corps in connection with commercial Marine Corps. and certain noncommercial activities (d) Accordingly, except as otherwise pursuant to 10 U.S.C. 7881. The Sec- provided in this paragraph, the follow- retary of the Navy, in Secretary of the ing mark is hereby designated to be Navy Instruction 5030.7, has provided worn by all persons wearing the Navy the policy and delegated to the Com- or Marine Corps uniform as provided in mandant of the Marine Corps (CMC), paragraphs (a), (b), and (c) of this sec- power to subdelegate to certain subor- dinate officers in writing, the author- tion: A diamond, 31⁄2 inches long in the ity to grant permission required by vertical axis, and 2 inches wide in the section 7881(b) of 10 U.S.C. for such use horizontal axis, of any cloth material, or imitation. white on blue clothing, forestry green (b) Scope. The provisions of this Order on khaki clothing, and blue on white requiring prior approval of the Sec- clothing. The figure shall be worn on retary of the Navy, CMC, or the des- all outer clothing on the right sleeve, ignee apply only to the use or imita- at the point of the shoulder, the upper tion of the seal, emblem, names, or ini- tip of the diamond to be one-fourth tials of the Marine Corps that suggest inch below the shoulder seam. For per- official approval, endorsement, or au- sons who are participating in United thorization is in connection with a pro- States Marine Corps Junior ROTC pro- motion, goods, services, or commercial grams, the following mark is des- activity. ignated to be worn: A round patch, (c) Standards—(1) No unofficial use or three inches in diameter, which con- imitation of the Marine Corps seal. Re- tains a gold Marine Corps emblem cen- production and use of the Marine Corps tered on a scarlet field. The scarlet seal, as designated in Executive Order field is surrounded with a blue border No. 10538 of June 22, 1954, is restricted containing the words ‘‘United States to materials emanating from Head- Marine Corps Junior ROTC’’ in white quarters Marine Corps. Except for man- lettering. Surrounding the blue field ufacture of official letterhead station- will be a gold border. Unless otherwise ery and related items of official Marine directed, the patch will be worn in the Corps use, reproduction and use of the manner described above in connection Marine Corps seal is prohibited. with the ‘‘diamond’’ insignia. (2) Unofficial use or imitation of the (e) Within the meaning of paragraph Marine Corps emblem, names, or initials. (a) of this section, the occasions when Requests from civilian enterprises to members of the military societies may use or imitate the Marine Corps em- wear the uniform of their respective so- blem, names, or initials will ordinarily ciety are official functions which such be approved where use or imitation a member attends in his capacity as a merely provides a Marine Corps accent war veteran or as a member of such or flavor to otherwise fungible goods. military society. Disapproval, however, usually may be
478
VerDate 25
expected where such use or imitation Marine Corps emblem, names, or ini- reasonably would: tials to the Director of Headquarters (i) Imply any official or unofficial Support (CMC (HQSP)). Prior to grant- connection between the Marine Corps ing approval for commercial usage of and the user; the Marine Corps insignia, the CMC (ii) Tend to create the impression (HQSP) shall forward such requests to that the Marine Corps or the United the Head, Marine Corps Exchange Serv- States is in any way responsible for ice Branch, Facilities and Services Di- any financial or legal obligation of the vision, Installations and Logistics De- user; partment (CMC) (LFE)) and to the (iii) Give the impression that the Ma- Counsel for the Commandant (CMC rine Corps selectively benefits the par- (CL)) for comment and concurrence. ticular manufacturer, commercial en- All other requests shall be routed to tity, or other user, as in displaying the the Director, Judge Advocate Division Marine Corps emblem, names, or ini- (CMC (JAR)) for comment and concur- tials on musical instruments, weapons, rence. or the like, and in using the emblem, (3) Procedures for obtaining written per- names, or initials in connection with mission. Requests for written permis- advertising, naming, or describing sion to use or imitate the Marine Corps products and services such as insur- emblem, names, or initials shall be in ance, real estate, or financial services; writing and shall be directed to the or CMC (HQSP). The request should, at a (iv) Tend to subject the Marine Corps minimum, contain the following infor- to discredit or would be inimical to the mation: health, safety, welfare, or morale of (i) Name and address of the re- the members of the Marine Corps. quester. (3) Acceptable use of imitation of the (ii) A description of the type of activ- Marine Corps insignia. No request for ity in which the requester is engaged permission is required when a use or or proposes to engage. imitation of the Marine Corps emblem, (iii) A statement of whether the re- names, or initials includes prominent quester considers the proposed use or display of the disclaimer, ‘‘Neither the imitation to be commercial or non- United States Marine Corps nor any commercial, and why. other component of the Department of (iv) A brief description and illustra- Defense has approved, endorsed, or au- tion or sample of the proposed use or thorized this product (or promotion, or imitation, as well as a description of service, or activity)’’ as an integral the product or service in connection part of the use of imitation. A ‘‘promi- with which it will be used. This de- nent display’’ is one located on the scription will provide sufficient detail same page as the first use of the insig- to enable the Marine Corps to deter- nia, prominent in that use, and printed mine whether there is a reasonable in letters at least one half the size and tendency to suggest such use or imita- density of the insignia. tion is approved, endorsed, or author- (d) Action—(1) When permission re- ized by the Marine Corps or any other quired. Commercial or noncommercial component of the Department of De- use or imitation of the Marine Corps fense. emblem, names, or initials is prohib- (v) In the case of a noncommercial ited unless permission is first obtained use of imitation, a copy of the charter, in writing from the CMC, except when constitution, bylaws, and similar orga- such use does not suggest that the use nizational documents of the requester, or imitation is approved, endorsed, or together with a detailed description of authorized by the Marine Corps or any its function or purpose. Insufficiently other component of the Department of specific requests will be returned for Defense. additional information. (2) Redelegation of authority. The CMC (e) Reserve applicability. This Order is hereby redelegates, pursuant to the au- applicable to the Marine Corps Re- thorization in paragraph 4 of the Sec- serve. retary of the Navy 5030.7, authority to grant written permission to use the [51 FR 45467, Dec. 19, 1986]
479
VerDate 25
PART 766—USE OF DEPARTMENT OF (2) Leased aircraft. U.S. Government- THE NAVY AVIATION FACILITIES owned aircraft delivered by the Gov- BY CIVIL AIRCRAFT ernment to a lessee subject to terms prescribed in an agreement which does Sec. not limit the lessee’s use of the aircraft 766.1 Purpose. to Government business. 766.2 Definition of terms. (c) Civil aviation. All flying activity 766.3 Authority. by civil aircraft including: 766.4 Policy. 766.5 Conditions governing use of aviation (1) Commercial aviation. Transpor- facilities by civil aircraft. tation by aircraft of passengers or 766.6 Approving authority for landings at cargo for hire and the ferrying of air- Navy/Marine Corps aviation facilities. craft as a commercial venture. 766.7 How to request use of naval aviation (2) General aviation. All types of civil facilities. 766.8 Procedure for review, approval, execu- aviation other than commercial avia- tion and distribution of aviation facility tion as defined above. licenses. (d) Facility. A separately located and 766.9 Insurance requirements. officially defined area of real property 766.10 Cancellation or suspension of the in which the Navy exercises a real aviation facility license (OPNAV Form property interest and which has been 3770/1). 766.11 Fees for landing, parking and storage. designated as a Navy or Marine Corps 766.12 Unauthorized landings. aviation facility by cognizant author- 766.13 Sale of aviation fuel, oil, services and ity; or where the Department of the supplies. Navy has jurisdiction over real prop- AUTHORITY: 49 U.S.C. 1507. erty agreements, expressed or implied, with foreign governments, or by rights SOURCE: 35 FR 14451, Sept. 15, 1970, unless otherwise noted. of occupation. (This definition does not include aircraft carriers nor any other NOTE: The provisions of this part 766 are SECNAV Instruction 3770.1B of 30 June 1970. type of naval vessel with a landing area for aircraft.) (e) Government aircraft. Aircraft § 766.1 Purpose. owned or operated by any department This part establishes the policy and or agency of either the United States procedures for the use of Navy and Ma- or a foreign government (except a for- rine Corps aviation facilities by air- eign government-owned aircraft oper- craft other than U.S. Department of ated for commercial purposes). Also Defense aircraft. aircraft owned by any department, agency, or political subdivision of a § 766.2 Definition of terms. State, territory, or possession of the For the purpose of this part certain United States when such local govern- terms are defined as follows: ment has sole responsibility for operat- (a) Alternate use. Use of the aviation ing the aircraft. Government aircraft facility, specified in the flight plan, to includes: which an aircraft may divert when a (1) Military aircraft. Aircraft used in landing at the point of first intended the military services of any govern- landing becomes impractical because of ment. weather. (Aircraft may not be dis- patched, prior to takeoff from the air- (2) Bailed aircraft. U.S. Government- port of origin, to a facility licensed for owned aircraft delivered by the Gov- alternate use.) ernment to a Government contractor (b) Civil aircraft. Domestic or foreign for a specific purpose directly related aircraft operated by private individuals to a Government contract. or corporations, or foreign govern- (3) Loaned aircraft. U.S. Government- ment-owned aircraft operated for com- owned aircraft delivered gratuitously mercial purposes. This includes: by any Department of Defense agency (1) Contract aircraft. Civil aircraft op- to another Government agency, to a erated under charter or other contract U.S. Navy or Marine Corps Flying to any U.S. Government department or Club, or to a U.S. Army or Air Force agency. Aero Club.
480
VerDate 25
(f) Joint-use facility. A Navy or Marine § 766.3 Authority. Corps facility where a specific agree- Section 1107(a) of the Federal Avia- ment between the Department of the tion Act of 1958 (49 U.S.C. 1507, 1508) Navy and a civilian community, or be- states that ‘‘Air navigation facilities tween the U.S. Government and a for- owned or operated by the United States eign government, provides for civil air- may be made available for public use craft use of the runways and taxiways. under such conditions and to such ex- Civil aircraft terminal, parking, and tent as the head of the department or servicing facilities are established and other agency having jurisdiction there- controlled by civil authorities in an of deems advisable and may by regula- area separate from those of the Navy tion prescribe.’’ (See § 766.13 for restric- or Marine Corps. tions imposed by the Federal Aviation (g) Official business. Business, in the Act of 1958.) interest of the U.S. Government, which personnel aboard an aircraft must § 766.4 Policy. transact with U.S. Government organi- Navy and Marine Corps aviation fa- zations or personnel at or near the cilities are established to support the naval aviation facility concerned. Use operation of Navy and Marine Corps of a facility to solicit U.S. Government aircraft. Equipment, personnel and ma- business is not ‘‘official business.’’ terial are maintained only at a level (h) Provisional use. Use of a naval necessitated by these requirements and aviation facility for the purpose of pro- shall not be used to support the oper- viding adequate service to a commu- ation or maintenance of civil aircraft nity where, because of repair, construc- or non U.S. Government aircraft, ex- tion or the performance of other work, cept as noted below. (Nothing in this the regular civil airport servicing the part, however, should be interpreted to community is not available for an ex- prohibit any aircraft from landing at tended period. (An aircraft may be dis- any suitable Navy or Marine Corps patched prior to takeoff from the air- aviation facility in case of a bona fide port of origin to a naval aviation facil- emergency.) (See § 766.5(i).) ity authorized for provisional use.) (a) General. Subject to the procedures (i) Scheduled use. Use of a facility on established elsewhere in this part, civil aircraft and government aircraft, other a scheduled or regularly recurring than those belonging to the U.S. Gov- basis by an air carrier certified by the ernment may use Navy or Marine Civil Aeronautics Board to provide pas- Corps facilities, if necessary, Provided, senger and cargo service to a commu- That: nity or area. (1) They do not interfere with mili- (j) Services in connection with Govern- tary requirements, and the security of ment contracts. This type of operation, military operations, facilities, or cited on the Aviation Facility License, equipment is not compromised. indicates the use of a facility for trans- (2) No adequate civil airport is avail- porting the contractor’s supplies and able. (Exception to this provision may personnel for the performance of work be made when the aircraft is operated at the facility under the terms of a spe- in connection with official business as cific U.S. Government contract. defined in this part.) (k) Technical stop. An en route land- (3) Pilots comply with regulations ing for the purpose of obtaining fuel, promulgated by the cognizant military oil, minor repairs, or crew rest. This agency and the commanding officer of does not include passenger accom- the facility. modations nor passenger/cargo enplan- (4) Civil aircraft users assume the ing or deplaning privileges unless spe- risk in accordance with the provisions cifically authorized by the Chief of of the Aviation Facility License. Naval Operations. (5) Each aircraft is equipped with (l) User. An individual, corporation, two-way radio which provides a capa- or company named in the Aviation Fa- bility for voice communications with cility License and the Certificate of In- the control tower on standard Navy/ surance. Marine Corps frequencies.
481
VerDate 25
(6) The user, or requesting govern- mental purposes, if the contract so pro- ment, has obtained permission through vides, or if it is determined to be in the diplomatic channels from the host best interests of the U.S. Government country wherein the facility of in- to do so. Unless otherwise provided in tended landing is located, if applicable. the contract, an Aviation Facility Li- (b) Civil Aircraft owned and operated cense is required, and the user shall by—(1) Military personnel. Private air- furnish a Certificate of Insurance as craft owned and operated by active provided in this part. duty U.S. military personnel or by (e) Aircraft demonstrations. Manufac- Navy/Marine Corps Reservists on inac- turers of aircraft or installed equip- tive duty may be authorized to land at ment may be authorized to use Navy/ a facility, provided such aircraft is not Marine Corps facilities in demonstrat- engaging in air commerce, and such ing and/or showing aircraft or installed landing is for official business required equipment to officials of the U.S. Gov- by written orders. Under no conditions ernment when: shall such aircraft be allowed to base (1) It is determined to be in the best or operate from a facility for personal interest of the U.S. Government. convenience nor base at a facility (2) The aircraft was produced in ac- under the guise of official business. cordance with U.S. Government speci- (2) Civil employees of the U.S. Govern- fications either with or without the aid ment. Private aircraft owned and oper- of Federal funds. ated by civil employees of the U.S. (3) There is an expressed interest on Government may be authorized to land the part of the U.S. Government offi- at a facility, provided such aircraft is cials responsible for procurement, ap- not engaging in air commerce, and proval, or certification of the aircraft. such landing is for official business re- (f) Joint use. When a specific agree- quired by written orders. Such aircraft ment is entered into by the Depart- shall not be allowed to base or operate ment of the Navy pertaining to joint from a facility for personal conven- civil/military use of a Navy or Marine ience. (Employees of U.S. Government Corps facility, the terms of that agree- contractors are not considered civil ment shall take precedence over the employees of the U.S. Government.) provisions of this part. (3) Non-U.S. Government personnel. An (g) Diplomatic agreements. For diplo- individual or corporation owned and/or matic agreements and clearances to operated aircraft may be authorized to use U.S. Navy and Marine Corps avia- land at a facility for: tion facilities in foreign countries, the (i) Sales or service representation to provisions of this part are subject to authorized military agents (e.g. the ex- the provisions of status of forces agree- change, commissary, or contracting of- ments, treaties of mutual cooperation ficer). or other international agreements. (ii) Services in connection with U.S. This part shall be used as a guide in ne- Government contracts. Contracting gotiating agreements at the local level agency and contract number(s) must be with representatives of a foreign mili- cited in the application for an Aviation tary service, the U.S. Embassy, and the Facility License. host government concerning the use of (c) Department of defense charter or naval facilities by other than U.S. contract. Aircraft operating under a military aircraft. Approval shall be ob- Military Traffic Management and Ter- tained from the Chief of Naval Oper- minal Service (MTMTS), Military Air- ations for proposed terms which are in lift Command (MAC), or Navy charter conflict with this part. or contract for the movement of DOD passengers or cargo may be authorized § 766.5 Conditions governing use of to use Navy or Marine Corps aviation aviation facilities by civil aircraft. facilities when required for loading, en (a) Risk. The use of Navy or Marine route or terminal stops. Corps aviation facilities by civil air- (d) Test and experimental use. Aircraft craft shall be at the risk of the opera- being produced for a military agency tor. Except as hereinafter provided for under contract may use Navy/Marine U.S. Government contractors, the De- Corps facilities for testing and experi- partment of the Navy shall assume no
482
VerDate 25
liability or responsibility by reason of tion (en Route) Instrument Flight the condition of the landing area, Rules—Supplement, then the ceiling taxiways, radio and navigational aids, and visibility must be at or above these or other equipment or for notification minimums in the applicable control of such condition; or by the acts of its zone. agents in connection with the granting (2) Instrument flight operations shall of the right to use such naval facility. be conducted in accordance with FAR, No responsibility is assumed for the se- § 91.116 of this title. curity of or damage to aircraft while (f) Inspection. The commanding offi- on property owned or controlled by the cer may conduct such inspection of a U.S. Government. transiting civil aircraft and its crew, (b) Military rules. Operators of civil passengers and cargo as he may con- aircraft utilizing a Navy or Marine sider appropriate or necessary to the Corps aviation facility shall be re- carrying out of his duties and respon- quired to comply with the air and sibilities. ground rules promulgated by the De- (g) Customs, immigration, agriculture, partment of the Navy and the com- and public health inspection. (1) The manding officer of the aviation facil- civil aircraft commander shall be re- ity. Such compliance shall pertain spe- sponsible for compliance with all appli- cifically to clearance authorization for cable customs, immigration, agri- the entry, departure, or movement of culture, and public health laws and aircraft within the confines of the ter- regulations. He shall also be respon- minal area normally controlled by the sible for paying fees, charges for over- commanding officer of the aviation fa- time services, and for all other costs cility. connected with the administration of (c) Federal aviation regulations. Opera- such laws and regulations. tors of civil aircraft shall be required (2) The commanding officer of the to comply with all Federal Aviation Navy/Marine Corps aviation facility Administration (FAA) rules and regu- will inform the appropriate public offi- lations including filing of flight plans. cials of the arrival of civil aircraft sub- When such flight plans are required, ject to such laws and regulations. He they shall be filed with the command- will not issue clearances for a civil air- ing officer or his authorized represent- craft to takeoff until such laws and ative prior to the departure of the air- regulations have been complied with. craft. When such a flight plan is not re- Procedures for insuring compliance quired, a list of passengers and crew with such laws and regulations shall be members, the airport of first intended as mutually agreed to by the com- landing, the alternate airport, and fuel manding officer of the aviation facility supply in hours shall be placed on file and the local public officials. prior to takeoff, with the commanding (h) Weather alternate. If a Navy/Ma- officer or with the local company rep- rine Corps aviation facility has been resentative as appropriate. approved for use as an alternate air- (d) Hours of operation. The use of a port, radio clearance must be obtained Navy/Marine Corps aviation facility by from such facility as soon as the deci- civil aircraft shall be limited to the sion is made en route for such use. hours when the facility is normally in (i) Emergency landings. Any aircraft operation. may land at a Navy/Marine Corps avia- (e) Weather minimums. Civil aircraft tion facility when necessary as a result shall comply with weather minimums of a bona fide emergency. However, as follows: whenever the nature of the emergency (1) Visual Flight Operations shall be permits the pilot to select the time and conducted in accordance with Federal place of landing, it is preferred that the Aviation Regulations (FAR), § 91.105 of pilot land his aircraft at a civil field. this title. If more stringent visual (1) The commanding officer of the flight rules minimums have been estab- aviation facility will require that the lished for the point of departure or des- pilot of the aircraft pay all fees and tination, as noted in the aerodrome re- charges and execute the Aviation Fa- marks section of the Department of cility License. A statement explaining Defense Flight Information Publica- the circumstances of the emergency
483
VerDate 25
landing must be noted in § 766.5 of the Government as a direct result of the license application. If a narrative re- emergency landing. Such costs will in- port from the pilot is available, it may clude those associated with labor, ma- be attached to the application. terial, rental of equipment, vehicles or (2) Clearance of runway. The Depart- tools, etc., for: ment of the Navy reserves the right to (a) Spreading foam on runway before use any method to clear a runway of the aircraft attempts emergency land- aircraft or wreckage consistent with ing. operational requirements. Care will be (b) Fire and crash control and rescue. exercised to preclude unnecessary dam- (c) Movement and storage of aircraft age in removing wrecked aircraft; how- or wreckage. ever, the Navy assumes no liability as (d) Damage to runway, lights, navi- a result of such removal. gation aids, etc. (3) Repairs. (i) Aircraft requiring major repairs may be stored tempo- (ii) There will be no charge for naval rarily in damaged condition. If repairs meteorological services and naval com- cannot be completed within a reason- munications facilities for the handling able time, the aircraft must be re- of arrival and departure reports, air moved from the facility by the owner traffic control messages, position re- or operator of the aircraft without ports and safety messages. delay. (iii) The determination as to whether (ii) No aircraft will be given a major landing fees shall be charged pursuant or minor overhaul. to an emergency landing for mainte- (iii) Engine or air frame minor com- nance or repair shall be the prerogative ponents may be furnished, when not of the commanding officer of the facil- available through commercial sources, ity. provided such supplies can be spared [35 FR 14451, Sept. 15, 1970, as amended at 51 and are not known to be in short sup- FR 22804, June 23, 1986] ply. The issuance of such supplies must be approved by the commanding offi- § 766.6 Approving authority for land- cer. ings at Navy/Marine Corps aviation (iv) Minor components in short sup- facilities. ply or major components for which (a) Except as indicated in paragraphs there is a repeated demand can be fur- (b) and (c) of this section, the com- nished only on message authority ob- manding officer of an active Navy/Ma- tained from the Aviation Supply Of- rine Corps aviation facility may ap- fice, Philadelphia, PA (for continental prove or disapprove landings of civil facilities) or local fleet air command or aircraft at his facility when such land- major aviation supply depot (for ing is: extracontinental facilities). Complete (1) Directly connected with or in sup- engines, airplane wings, or other major port of U.S. Government business (ex- items of equipment shall not be fur- cept those listed in paragraph (c) of nished under this authority. this section). (v) If the commanding officer be- lieves it is desirable to furnish re- (2) In connection with U.S. Govern- quested material or services in excess ment or community interests on an in- of the restrictions stated herein, he frequent basis when no adequate civil shall request instructions from the airport is reasonably available. Chief of Naval Operations, giving a (3) By aircraft owned and operated by brief description of the material or Navy/Marine Corps Flying Clubs or services requested together with his U.S. Army or Air Force Aero Clubs recommendations. which are operated as instrumental- (4) Reimbursement for costs. (i) The ities of the U.S. Government. civil user making an emergency land- (4) By aircraft owned and operated by ing will be billed in accordance with U.S. Government personnel when such paragraphs 032500–032503 of the use is in accordance with § 766.4(b) (1) NAVCOMPT Manual and paragraphs and (2). 25345–25363 of the NAVSUP Manual for (5) By civil aircraft either owned or payment of all costs incurred by the personally chartered by:
484
VerDate 25
(i) The President or Vice President of ment and the government of the air- the United States or a past President craft’s registry, or of the United States. (ii) The facility is located in a coun- (ii) The head of any Federal depart- try other than that in which the for- ment or agency. eign aircraft is registered. (iii) A Member of Congress. (6) By a bailed, leased, or loaned air- § 766.7 How to request use of naval craft (as defined in § 766.2) when oper- aviation facilities. ated in connection with official busi- (a) Forms required. Each applicant de- ness only. siring use of a Navy/Marine Corps avia- (7) By aircraft owned and operated by tion facility will be required to: States, counties, or municipalities of (1) Execute an application for an the United States when used for offi- Aviation Facility License (OPNAV cial business of the owner. Form 3770/1 (Rev. 7–70)). (b) Except as limited by paragraph (c) (2) Submit a Certificate of Insurance of this section, the Commander in (NAVFAC 7–11011/36) showing coverage Chief, U.S. Naval Forces, Europe; Chief as provided by § 766.9 of this part. of Naval Material; Commander in (b) Exceptions. Exceptions to the fore- Chief, U.S. Atlantic Fleet; Commander going requirements are: in Chief, U.S. Pacific Fleet; Chief of (1) Aircraft owned and operated by Naval Air Training; Commander, Pa- departments or agencies of the U.S. cific Missile Range; Commander, Ma- Government for official business. rine Corps Air Bases, Eastern Area; (2) Aircraft owned and operated or Commander, Marine Corps Air Bases, noncommercial purposes by agencies of Western Area; and Commanding Gen- a foreign government, except in cases eral, Fleet Marine Force, Pacific may where the foreign government charges approve civil aircraft use of any active fees for U.S. Government aircraft. aviation facility under their control. (3) Aircraft owned and operated by (At overseas locations, aircraft landing States, possessions, and territories of authorizations must be in consonance the United States and political subdivi- with the provisions of applicable inter- sions, thereof, when used for official national agreements.) business of the owner. (c) The Chief of Naval Operations (4) Aircraft owned and operated by ei- may approve any of the above requests, ther Navy/Marine Corps Flying Clubs and is the only agency empowered to or Aero Clubs of other military serv- approve all other requests for use of ices which are operated as instrumen- naval facilities by civil and govern- talities of the U.S. Government. ment aircraft, for example: (5) Bailed aircraft, provided the bail- (1) Applications for use of more than ment contract specifies that the U.S. one facility when the facilities are not Government is the insurer for liability. under the control of one major com- (c) Obtaining forms. The applicant mand. may obtain the required forms listed in (2) Application for use of naval avia- paragraph (a) of this section, from the tion facilities when participating in commanding officer of any Navy or U.S. Government or Department of De- Marine Corps aviation facility or from fense single-manager contract and the Chief of Naval Operations (OP–53C). charter airlift operations; i.e., Military Navy units may obtain the forms Airlift Command (MAC) or Military through regular supply channels as a Traffic Management and Terminal Cog ‘‘I’’ item. Service (MTMTS). (d) Preparation of forms. (1) The li- (3) Application for a facility to be cense application will be completed in used as a regular civil airfield for a quadruplicate by the applicant in ac- community, by either commercial or cordance with detailed instructions set general aviation. forth in Aviation Facility License (4) Requests for use of a facility by (OPNAV Form 3770/1 (REV. 7–70)). foreign civil or government aircraft (2) The Certificate of Insurance will when: be completed by the insurer. Only the (i) Such use is not covered by an signed original certificate and one copy agreement between the U.S. Govern- are required to be submitted.
485
VerDate 25
(e) Submission of forms. (1) The forms nish a security deposit as stipulated in executed by the applicant shall be sub- § 766.7(f). mitted to the commanding officer of (b) Processing application. The com- the aviation facility concerned, except manding officer will approve/dis- that applications requiring approval by approve the application or forward it higher authority shall be submitted to to higher authority for approval as re- the appropriate approving authority, quired by § 766.6(b) or (c). If the applica- as indicated in paragraph (b) or (c) of tion is approved, the approving author- this section at least 30 days prior to ity will then forward all copies of the the first intended landing. license and Certificate of Insurance to (2) Once the NAVFAC 7–11011/36, Cer- the Commander, Naval Facilities Engi- tificate of Insurance, is on file with an neering Command or his designated executing authority, it is valid until representative for review and execu- insurance expiration date and may be tion of the license. used by that executing authority as a (c) Action by the Commander, Naval basis for his action on any subsequent Facilities Engineering Command or his OPNAV Forms 3770/1 submitted for ap- designated representative. (1) Upon re- proval. ceipt, the Commander, Naval Facilities (f) Security deposit. All applications, Engineering Command, or his des- other than those listed in § 766.11(a) ignated representative, will review the contemplating more than one landing license and Certificate of Insurance. He per month, will be accompanied by a shall determine whether the insurance security deposit in the form of a cer- coverage conforms to the requirements tified check payable to the ‘‘Treasurer prescribed by § 766.9 of this part or to of the United States’’ in payment of such requirements as may be promul- the estimated costs of landing, hangar gated from time to time by the Chief of and outside parking fees, for 3 months Naval Material. in advance, calculated as provided in (2) Upon approval, he will then exe- § 766.11 (c) and (d). Security deposits cute the license in triplicate, conform will be handled as set forth in para- all additional copies, and make dis- graph 032102 of the NAVCOMPT Man- tribution as provided in paragraph (d) ual. of this section. Applications which are not approved will be returned to the (g) Nonexclusive use airports. When ei- applicant with an explanation of defi- ther the Chief of Naval Operations or ciencies which must be corrected prior Commandant of the U.S. Marine Corps to execution. does not have exclusive operational (d) Distribution. (1) After execution of control over a landing area, the air- a license, distribution will be made as craft operator will obtain permission follows: to land from the appropriate civil or military authority. Original—To the licensee. Executed copy—To the commanding offi- § 766.8 Procedure for review, approval, cer. execution and distribution of avia- Executed copy—To the Commander, Naval tion facility licenses. Facilities Engineering Command or his des- ignated representative. (a) Review of application by the com- Conformed copy—To the Chief of Naval Op- manding officer. The commanding offi- erations (OP–53). cer will review each application for Conformed copy—To the cognizant com- Aviation Facility License and Certifi- mander under § 766.6(b). cate of Insurance received and deter- Conformed copy—To the disbursing officer mine whether such forms have been serving the performing activity in the case completed by the applicant in accord- of local deposits, and to the Office of the ance with the instructions for their Navy Comptroller (NAFC3) in the case of preparation as indicated in the Avia- central deposits held at the Washington, DC level. tion Facility License (OPNAV Form Conformed copy—To the Military Airlift 3770/1 (REV. 7–70)) and the Certificate Command (MAC) for DOD contract or char- of Insurance (NAVFAC 7–11011/36(7–70)). ter airlift operations. As appropriate, the commanding offi- Conformed copy—To the Military Traffic cer will require each applicant to fur- Management and Terminal Service (MTMTS)
486
VerDate 25
for DOD contract or charter airlift oper- person in any one accident with at ations. least $1 million for each accident. (2) Licenses issued under this author- (ii) Property damage liability. At least ity are to be disposed of under provi- $1 million for each accident. sions of paragraph 4280 of (iii) Passenger liability. At least SECNAVINST 5212.5B, Disposal of $100,000 for each passenger, with a min- Navy and Marine Corps Records. In ac- imum for each accident determined as cordance therewith, official executed follows: multiply the minimum for copies of licenses are to be retained for each passenger, $100,000 by the next a period of 6 years after completion or highest whole number resulting from termination of the agreement. They taking 75 percent of the total number may be transferred to the nearest Fed- of passenger seats (exclusive of crew eral records center when superseded, seats). For example: The minimum pas- revoked, canceled, or expired for reten- senger coverage for each accident for tion by the center until expiration of an aircraft with 94 passenger seats is the 6-year retention period. computed: 94×0.75=70.5—next highest whole number resulting in 71. There- § 766.9 Insurance requirements. fore, 71×$100,000=$7,100,000. (3) Privately owned noncommer- (a) Control of insurance. The Com- cially-operated aircraft of less than mander, Naval Facilities Engineering 12,500 pounds will be insured for: Command, or his designee, shall be re- (i) Bodily injury liability (excluding sponsible for requiring aircraft owners passengers). At least $100,000 for each or operators to procure and maintain person in any one accident with at liability insurance conforming to the least $500,000 for each accident. standards prescribed by the Chief of (ii) Property damage liability. At least Naval Material. The insurance policy $500,000 for each accident. must be obtained at the expense of the (iii) Passenger liability. At least civil aircraft owner or operator and $100,000 for each passenger, with a min- with a company acceptable to the U.S. imum for each accident determined by Navy. multiplying the minimum for each pas- (b) Insurance coverage. Except for senger, $100,000 by the total number of those aircraft exempted by paragraph passenger seats (exclusive of crew (c) below, each civil aircraft is required seats). to be covered by insurance of the types (4) Aircraft insured for a single limit and minimum limits established by the of liability must have coverage equal Chief of Naval Material. The Certifi- to or greater than the combined re- cate of Insurance, must state all cov- quired minimums for bodily injury, erages in U.S. dollars. Current mini- property damage, and passenger liabil- mums are: ity for the type of use requested and (1) Privately owned commercially-op- for the passenger capacity and gross erated aircraft used for cargo carrying takeoff weight of the aircraft being op- only and aircraft being flight-tested or erated. For example: the minimum sin- ferried without passengers will be in- gle limit of liability acceptable for an sured for: aircraft operating as described in para- (i) Bodily injury liability. At least graph (b)(2) of this section is $1,000,000 $100,000 for each person in any one acci- + $1,000,000 + $7,100,000 = $9,100,000. dent with at least $1 million for each (5) Aircraft insured by a combination accident. of primary and excess policies must (ii) Property damage liability. At least have combined coverage equal to or $1 million for each accident. greater than the required minimums (2) Privately owned commercially-op- for bodily injury, property damage, and erated aircraft used for passenger car- passenger liability, for the type of use, rying and privately owned noncommer- and for the passenger capacity and cially-operated aircraft of 12,500 pounds gross takeoff weight of the aircraft. or more certified maximum gross take- (6) Each policy must specifically pro- off weight will be insured for: vide that: (i) Bodily injury liability (excluding (i) The insurer waives any right to passengers). At least $100,000 for each subrogation the insurer may have
487
VerDate 25
against the United States by reason of and citing the circumstances of the any payment under the policy for dam- misuse. age or injury which might arise out of (b) Suspension. The approving author- or in connection with the insured’s use ity, or the commanding officer of the of any Navy installation or facility. facility, may suspend an approved (ii) The insurance afforded by the Aviation Facility License when such li- policy applies to the liability assumed censed use would be inconsistent with by the insured under OPNAV Form Navy/Marine Corps or national defense 3770/1, Aviation Facility License. interests. Whenever possible, the De- (iii) If the insurer cancels or reduces partment of the Navy will avoid sus- the amount of insurance afforded under pension of licenses which have been the listed policy, the insurer shall send issued for official business or scheduled written notice of the cancellation or air carrier use. In all cases, suspensions reduction to Commander, Naval Facili- will be lifted as quickly as possible. A ties Engineering Command, Depart- suspension will not have the effect of ment of the Navy, Washington, DC extending the expiration date of an ap- 20390 by registered mail at least 30 days proved Aviation Facility License. in advance of the effective date of the § 766.11 Fees for landing, parking and cancellation; the policy must state storage. that any cancellation or reduction will not be effective until at least 30 days (a) The commanding officer of a facil- after such notice is sent, regardless of ity will collect landing, parking, and the effective date specified therein. storage fees, as applicable, from all users required to have an Aviation Fa- (iv) If the insured requests cancella- cility License by § 766.7 except for the tion or reduction, the insurer shall no- following: tify the Commander, Naval Facilities (1) Government aircraft (see defini- Engineering Command, Department of tion § 766.2(g)) except that foreign gov- the Navy, Washington, DC 20390 imme- ernment aircraft will be charged fees if diately upon receipt of such request. their government charges similar fees (c) Exemption. Government aircraft, for U.S. Government aircraft. as defined in § 766.2(e) are exempt from (2) Aircraft being produced under a the insurance requirements specified contract of the U.S. Government. above. However, this exemption applies (3) Any contract aircraft (see defini- to bailed aircraft only if the contract tion § 766.2(b)(1)) or other civil aircraft under which the aircraft is bailed which is authorized to use the facility specifies that insurance is not required. on official business. (4) Aircraft employed to train opera- § 766.10 Cancellation or suspension of tors in the use of precision approach the aviation facility license (OPNAV Form 3770/1). systems (GCA, ILS, et al.) provided full-stop or touch-and-go landings are (a) Cancellation. (1) If the user fails to not performed. comply with the terms of the Aviation (5) Aircraft owned and operated by ei- Facility License (OPNAV Form 3770/1) ther Navy/Marine Corps Flying Clubs or of any applicable regulations, all or Aero Clubs or other military serv- current Aviation Facility Licenses for ices which are operated as instrumen- that user will be canceled. A canceled talities of the U.S. Government. Aviation Facility License cannot be re- (6) Aircraft owned and operated by instated; a new application must be military personnel on active duty (Reg- submitted for approval as explained in ular and Reserve) or retired, provided § 766.7. the aircraft is not used for commercial (2) If the commanding officer of a purposes. naval aviation facility has reason to (7) Landing fees incident to emer- believe that the use of an Aviation Fa- gency landings for which the landing cility License is not in accordance with fee has been waived by the command- the terms of the license he should im- ing officer in accordance with mediately notify the Chief of Naval Op- § 766.5(i)(5)(i). erations, giving the name of the user, (b) Fee for unauthorized landing. If an the Aviation Facility License number, aircraft lands at a Navy/Marine Corps
488
VerDate 25
aviation facility without obtaining paragraphs 032500–032503 of the prior permission (except for a bona fide NAVCOMPT Manual. emergency landing), a landing fee in excess of the normal landing fee will be § 766.12 Unauthorized landings. charged to cover the additional ex- An aircraft that lands at a Navy/Ma- penses incurred due to special handling rine Corps aviation facility without ob- and processing. The fee for an unau- taining prior permission from an ap- thorized landing will be as follows: proving authority, except in a bona (1) For aircraft weighing less than fide emergency, is in violation of this 12,500 pounds: $100. part. Civil aircraft landing in violation (2) For aircraft weighing 12,500 of this regulation will have to pay the pounds but less than 40,000 pounds: fee prescribed in § 766.11(b). In those $250. cases where an unauthorized landing is (3) For aircraft weighing 40,000 made at a facility within a Naval De- pounds but less than 100,000 pounds: fense Area, proclaimed as such by Ex- $500. ecutive order of the President, civil (4) For aircraft weighing above aircraft may be impounded and the op- 100,000 pounds: $600. erator prosecuted as indicated in (c) Normal landing fee. The normal OPNAVINST 5500.11C of November 12, landing fee is based on the aircraft 1963. In any event, before the aircraft is maximum authorized gross takeoff authorized to depart, the commanding weight, to the nearest 1,000 pounds. The officer of the facility will: maximum gross takeoff weight may be (a) Inform the aircraft operator of determined either from item 7F of the provisions of this part and the OP OPNAV Form 3770/1 or from the ‘‘Air- NAVINST 5500.11C of November 12, 1963, plane Flight Manual’’ carried aboard if applicable. each aircraft. If the weight cannot be (b) Require the aircraft operator (or determined, it should be estimated. owner), before takeoff, to pay all fees and charges and to comply with the CHARGE PER LANDING following procedure: Inside CONUS—0.20/1,000 pounds or any por- (1) Execute OPNAV Form 3770/1, ex- tion thereof with a minimum of $5. plaining in item 6 of that form the rea- Outside CONUS—0.30/1,000 pounds or any por- son for the landing. tion thereof with a minimum of $7.50. (2) In lieu of submitting a Certificate (d) Parking and storage fees. Fixed and of Insurance (NAVFAC 7–11011/36), the rotary wing aircraft parking and stor- insurer must furnish evidence of suffi- age fees are based upon the gross take- cient insurance to include waiver of off weight of the aircraft as follows: any right of subrogation against the (1) Outside a hangar. Charges begin 6 United States, and that such insurance hours after the aircraft lands. The rate applies to the liability assumed by the is 10 cents per thousand pounds for insured under OPNAV Form 3770/1. each 24-hour period or fraction thereof, (3) When it appears that the violation with a minimum charge of $1.50 per air- may have been deliberate, or is a re- craft. peated violation, departure authoriza- (2) Inside a hangar. Charges begin as tion must be obtained from the Chief of soon as the aircraft is placed inside the Naval Operations. hangar. The rate is 20 cents per 1,000 (4) Waiver of the requirements in pounds for each 24-hour period or frac- paragraphs (b)(1) and (2) of this section tion thereof, with a minimum charge of may be obtained from the Chief of $5 per aircraft. Naval Operations to expedite removal (e) Reimbursement. Collections inci- of these aircraft when such waiver is dent to direct (out of pocket) costs will considered appropriate. be credited to local operating and [35 FR 14451, Sept. 15, 1970, as amended at 51 maintenance funds. All other collec- FR 22804, June 23, 1986] tions, such as for landing, parking, and storage fees will be credited to Navy § 766.13 Sale of aviation fuel, oil, serv- General Fund Receipt Account 172426. ices and supplies. Accumulation of costs and preparation (a) General policy. In accordance with of billing documents are prescribed in sections 1107 and 1108 of the Federal
489
VerDate 25
Aviation Act of 1958 (72 Stat. 798 as Subpart C—Base Entry Regulations for amended, 49 U.S.C. 1507, 1508), Navy/ Naval Installations in the State of Hawaii Marine Corps Aviation fuel, oil, serv- ices, and supplies are not sold to civil 770.25 Purpose. aircraft in competition with private 770.26 Definitions. enterprise. Sections 1107 and 1108 of 770.27 Background. Federal Aviation Act of 1958 (72 Stat. 770.28 Entry restrictions. 798 as amended, 49 U.S.C. 1507, 1508), 770.29 Entry procedures. however, does authorize the sales of 770.30 Violations. 770.31 List of major naval installations in fuel, oil, equipment, supplies, mechani- the State of Hawaii and cognizant com- cal service, and other assistance by manders authorized to grant access reason of an emergency. Such sales will under these regulations. be made only where there is no com- mercial source and only in the amount Subpart D—Entry Regulations for Naval necessary for the aircraft to continue Installations and Property in Puerto Rico on its course to the nearest airport op- erated by private enterprise. 770.35 Purpose. (b) Contract aircraft. The sale of avia- 770.36 Definitions. tion fuel, oil, supplies, etc. to aircraft 770.37 Background. under U.S. Government contract or 770.38 Entry restrictions. charter is permitted at, and limited to, 770.39 Entry procedures. points where passengers or cargo are 770.40 Violations. loaded into or discharged from the air- craft under terms of the contract or Subpart E—Base Entry Regulations for charter. Sales are not authorized at Naval Submarine Base New London, naval aviation facilities where com- Groton, Connecticut mercial supplies and service are avail- 770.41 Purpose. able. 770.42 Background. 770.43 Responsibility. PARTS 767–769 [RESERVED] 770.44 Entry restrictions. 770.45 Entry procedures. PART 770—RULES LIMITING PUBLIC 770.46 Violations. ACCESS TO PARTICULAR INSTAL- Subpart F—Base Entry Regulations for LATIONS Puget Sound Naval Shipyard, Bremer- ton, Washington Subpart A—Hunting and Fishing at Marine Corps Base, Quantico, Virginia 770.47 Purpose. 770.48 Definition. Sec. 770.49 Background. 770.1 Purpose. 770.2 Licenses. 770.50 Entry restrictions. 770.3 Fishing regulations. 770.51 Entry procedures. 770.4 Hunting regulations. 770.52 Violations. 770.5 Safety regulations. 770.6 Restrictions. Subpart G—Entry Regulations for Ports- 770.7 Violations. mouth Naval Shipyard, Portsmouth, 770.8 Reports. New Hampshire 770.9 Miscellaneous. 770.53 Purpose. Subpart B—Base Entry Regulations for 770.54 Background. Naval Submarine Base, Bangor, Brem- 770.55 Responsibility. erton, Washington 770.56 Entry restrictions. 770.57 Entry procedures. 770.15 Purpose. 770.58 Violations. 770.16 Definition. 770.17 Background. AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 6011; 32 770.18 Entry restrictions. CFR 700.702; 32 CFR 700.714, unless otherwise 770.19 Entry procedures. noted. 770.20 Violations.
490
VerDate 25
Subpart A—Hunting and Fishing at The lectures commence an hour before Marine Corps Base, Quantico, sunrise, 0800, and 1200; (3) Understanding of Federal, State Virginia and Base hunting regulations; (4) And, if civilian, an executed re- SOURCE: 41 FR 22345, June 3, 1976, unless lease of U.S. Government responsibil- otherwise noted. ity in case of accident or injury. § 770.1 Purpose. [41 FR 22345, June 3, 1976, as amended at 48 FR 23205, May 24, 1983] This subpart provides regulations and related information governing § 770.3 Fishing regulations. hunting and fishing on the Marine (a) All persons possessing the proper Corps Base Reservation, Quantico, VA. state license and Base permit are per- mitted to fish in the areas designated § 770.2 Licenses. by the Base Game Warden on Marine (a) Every person who hunts or fishes Corps Base, Quantico, VA, on any au- on Marine Corps Base, Quantico, VA, thorized fishing day. A Base Fishing must possess appropriate valid licenses Privilege Card is required for all per- in compliance with the Laws of the sons aged 16 to 65. United States and the State of Vir- (b) Fishing is permitted on all waters ginia. within the boundaries of Marine Corps (b) In addition, hunting and fishing Base, Quantico, VA, unless otherwise privilege cards, issued by the authori- posted, during the periods provided and ties at Marine Corps Base, Quantico, under the conditions and restrictions, VA, are required for all persons be- by the Marine Corps Base, Quantico, tween the ages sixteen and sixty-four, VA, Game Warden. Information regard- inclusive. ing specific regulations for each fishing (1) The privilege card may be pur- area must be procured from the Game chased from the Game Warden at the Warden located in Natural Resources Natural Resources Management Divi- Management Division Headquarters sion Headquarters, Building 5–9, Ma- Building 5–9 prior to utilization of Base rine Corps Base, Quantico, VA. fishing facilities. (c) In addition to the requirements of (2) The privilege cards are effective the Laws of Virginia, the following ad- for the same period as the Virginia ditional prohibitions and requirements hunting and fishing licenses. are in effect at Marine Corps Base, (c) All hunters must obtain a Base Quantico, VA. hunting permit, and a parking permit, (1) Live minnows will not be used as if applicable, from the Game Warden bait in any impounded waters on the for each day of hunting. The hunting Marine Corps Base, Quantico, VA; permit must be carried by the hunter (2) No trot lines are permitted in Ma- and the parking permit must be dis- rine Corps Base waters; played on the left dashboard of parked (3) No Large Mouth Bass will be vehicles. The hunting and parking per- taken, creeled or possessed under the mits must be returned within one hour size of twelve (12) inches in length. All after either sunset or the hour hunting Large Mouth Bass under this size will is secured on holidays or during special be immediately returned to the water; season. (4) No Striped Bass will be taken, (d) Eligibility for a Base hunting per- creeled or possessed under the size of mit is predicated on: twenty (20) inches in length. All (1) Possession of required Federal and Striped Bass under this size will be im- State licenses for the game to be hunt- mediately returned to the water; ed including Marine Corps Base hunt- (5) All persons fishing in the waters ing privilege card; of Marine Corps Base, Quantico, VA, (2) Attendance at a safety lecture will possess and utilize a creel card. given daily except Sunday during the The card may be obtained from the re- hunting season given at the Game port boxes located in the vicinity of all Checking Station located at the inter- fishing areas. The creel report must be section of Russell Road and MCB–1. completed at the conclusion of the
491
VerDate 25
day’s fishing and returned to any fish- § 770.6 Restrictions. ing report box. (a) There will be no hunting on [41 FR 22345, June 3, 1976, as amended at 48 Christmas Day; New Year’s Day, or FR 23205, May 24, 1983] after 1200 on Thanksgiving Day and Christmas Eve. § 770.4 Hunting regulations. (b) Hunters under 16 years of age All persons possessing the proper must be accompanied by an adult (18 State, Federal and Base licenses and years of age or older) while hunting or permits are permitted to hunt in the in a hunting area. The adult is limited areas designated daily by the Game to a maximum of two underage hunt- Warden on Marine Corps Base, ers, and must stay within sight and Quantico, VA, on any authorized hunt- voice contact and no more than 100 ing day. In addition, a minimum of ten yards away from the underage hunters. percent of the daily hunting spaces will (c) The following practices or actions be reserved to civilians on a first come, are expressly forbidden: Use of rifles, except muzzleloaders of .40 caliber or first served basis until 0600 on each larger as specified below, revolvers or hunting day, at which time, the Game pistols; use of shotguns larger than 10 Warden may fill vacancies from any gauge or crossbows (this prohibition authorized persons waiting to hunt. extends to carrying such weapons on § 770.5 Safety regulations. the person or in a vehicle while hunt- ing), use of buckshot to hunt any (a) Hunting is not permitted within game; use of a light, attached to a ve- 200 yards of the following: Ammunition hicle or otherwise, for the purpose of dumps, built-up areas, rifle or pistol spotting game; use of dogs for hunting ranges, dwelling or other occupied or tracking deer; training deer dogs on structures, and areas designated by the the Reservation; training or running Game Warden as recreation areas. dogs in hunting areas between 1 March (b) From the end of the special arch- and 1 September; driving deer; baiting ery season until the end of the regular or salting traps or blinds; hunting on winter hunting season, except for duck Sunday; molesting beaver or bald ea- hunters in approved blinds, hunters gles. Those personnel who are author- will wear an outer garment with at ized to hunt on Base, desiring to train least one square foot of blaze orange or exercise dogs other than deer dogs visible both front and back above the between 2 September and 28 February, waist and a blaze orange cap while may do so by obtaining clearance to hunting, or while in the woods for any enter training areas at the Range Con- reason, during the hours that hunting trol Office. This clearance is not per- is authorized. Any person traveling on mission to hunt, and carrying weapons foot in or adjacent to an area open for under these conditions is prohibited. hunting will comply with the above re- (d) Hunting will not commence be- quirement. fore one half hour before sunrise, and (c) Weapons will be unloaded while will end not later than sunset. The being transported in vehicles, and will hours of sunrise and sunset are posted be left in vehicles by personnel check- daily at the Game Checking Station. ing in or out at the Game Warden’s Of- (e) Weapons will not be loaded out- fice. Weapons will not be discharged side of hunting hours. from vehicles, or within 200 yards of [41 FR 22345, June 3, 1976, as amended at 48 hard surfaced roads. FR 23205, May 24, 1983] (d) Certain hunting areas contain nu- merous unexploded munitions (duds) § 770.7 Violations. which are dangerous and must not be Violations of hunting regulations, removed or disturbed. Hunters should fishing regulations, safety regulations, mark such duds with stakes or other or principles of good sportsmanship are means and report their location to the subject to administrative restriction of Game Warden. hunting or fishing privileges and pos- (e) Hunters must stay in their as- sible judicial proceedings in State or signed areas when hunting. Federal courts.
492
VerDate 25
(a) The Marine Corps Base Game blinds may be placed on waters within Warden and Wildlife Manager are com- the bounds of the Reservation when missioned as Virginia and Federal specifically authorized by the Wildlife game wardens and they can issue sum- Manager. Muzzleloading rifles .40 cali- mons to appear in civil court for viola- ber and larger will be permitted for tions of Federal and State game laws. deer hunting during the established (b) Offenders in violation of a Federal seasons in those numbered hunting or State hunting or fishing law will be areas located entirely in Fauquier and referred to a civil court. Stafford Counties within the bound- (c) Offenders in violation of a Fed- aries of the Marine Corps Base. Deer eral, State or Base hunting or fishing will only be hunted with the bow and law or regulation will receive the fol- arrow, and shotguns loaded with slugs, lowing administrative actions. with exception of the preceding sen- (1) The Base Game Warden or the tence. Wildlife manager shall have the au- thority to temporarily suspend hunting [41 FR 22345, June 3, 1976, as amended at 48 and fishing privileges. FR 23206, May 24, 1983] (2) And for the first minor offense a letter of warning will be issued. Subpart B—Base Entry Regulations (3) For the second minor offense for Naval Submarine Base, hunting or fishing privileges will be re- Bangor, Bremerton, Washing- voked for one year. ton (4) For the first serious offense hunt- ing or fishing privileges will be revoked for a minimum of one year. AUTHORITY: 50 U.S.C. 797; DoD Dir. 5200.8 of (5) For the second serious offense August 20, 1954; 5 U.S.C. 301; 10 U.S.C. 6011, 32 CFR 700.702; 32 CFR 700.714. hunting or fishing privileges will be permanently revoked. SOURCE: 44 FR 32368, June 6, 1979, unless (d) Civilians found in violation of a otherwise noted. hunting or fishing regulation or law may be permanently restricted from § 770.15 Purpose. entering the base. The purpose of this subpart is to pro- (e) Serious hunting and fishing of- mulgate regulations governing entry fenses include, but are not limited to: upon Naval Submarine Base (SUBASE), spotlighting, false statement on a li- Bangor. cense, hunting under the influence, em- ployment of a light in an area that § 770.16 Definition. deer frequent, and taking game or fish For the purpose of this subpart, during closed seasons. SUBASE Bangor shall include that area of land in Kitsap and Jefferson § 770.8 Reports. Counties, State of Washington which Upon killing a deer or turkey, a has been set aside for use of the Fed- hunter must attach the appropriate tab eral Government by an Act of the legis- from his big game license to the car- lature of the State of Washington, ap- cass before moving the game from the proved March 15, 1939 (Session laws of place of kill. The game will then be 1939, chapter 126). taken to the Game Checking Station where the tab will be exchanged for an § 770.17 Background. official game tag. All other game, not (a) SUBASE Bangor has been des- requiring a tag, killed on the Reserva- ignated as the West Coast home port of tion will be reported to the Game War- the Trident Submarine. Facilities for den when checking out at the end of a the repair or overhaul of naval vessels hunt. are located at SUBASE Bangor. It is [41 FR 22345, June 3, 1976, as amended at 48 vital to national defense that the oper- FR 23206, May 24, 1983] ation and use of SUBASE Bangor be continued without undue and unneces- § 770.9 Miscellaneous. sary interruption. Many areas of Hunters are encouraged to build and SUBASE Bangor are of an industrial use tree blinds for hunting deer. Duck nature, including construction sites,
493
VerDate 25
where inherently dangerous conditions Whoever, within the jurisdiction of the exist. United States, goes upon any military, naval (b) For prevention of the interruption * * * reservation, post, fort, arsenal, yard, of the stated use of the base by the station, or installation, for any purpose pro- hibited by law or lawful regulation * * * presence of any unauthorized person shall be fined not more than $500 or impris- within the boundaries of SUBASE Ban- oned not more than six months or both. gor, and prevention of injury to any such person as a consequence of the (b) Moreover, any person who will- dangerous conditions which exist, as fully violates this subpart is subject to well as for other reasons, it is essential a fine not to exceed $500 or imprison- to restrict entry upon SUBASE Bangor ment for not more than one (1) year or to authorized persons only. both as provided in 50 U.S.C. 797. § 770.18 Entry restrictions. Subpart C—Base Entry Regulations Except for military personnel and ci- for Naval Installations in the vilian employees of the United States State of Hawaii in the performance of their official du- ties, entry upon Naval Submarine AUTHORITY: 50 U.S.C. 797; DoD Dir. 5200.8 of Base, Bangor, or remaining thereon by Aug. 20, 1954; 5 U.S.C 301; 10 U.S.C. 6011; 32 any person whatsoever for any purpose CFR 700.702, 770.714. without the advance consent of the SOURCE: 44 FR 76279, Dec. 26, 1979, unless Commanding Officer, SUBASE Bangor otherwise noted. or his authorized representative is pro- hibited. See 18 U.S.C. 1382; the Internal § 770.25 Purpose. Security Act of 1950, Section 21 (50 The purpose of this subpart is to pro- U.S.C. 797); Department of Defense Di- mulgate regulations governing entry to rective 5200.8 of 20 August 1954; Chief of naval installations in the State of Ha- Naval Operations Instruction 5510.45B waii. of 19 April 1971; Chief of Naval Oper- ations Instruction 5511.9A of 1 October § 770.26 Definitions. 1954. For the purpose of this subpart the following definitions apply: § 770.19 Entry procedures. (a) Naval installations. A naval instal- (a) Any person or group of persons lation is a shore activity and is any desiring the advance consent of the area of land, whether or not fenced or Commanding Officer, SUBASE Bangor covered by water, that is administered or his authorized representative shall, by the Department of the Navy or by in writing, submit a request to the any subordinate naval command. The Commanding Officer, SUBASE Bangor, term ‘‘naval installation’’ applies to all at the following address: Commanding such areas regardless of whether the Officer, Naval Submarine Base, Bangor, areas are being used for purely mili- Bremerton, WA 98315. tary purposes, for housing, for support (b) Each request for entry will be purposes, or for any other purpose by a considered on an individual basis naval command. Section 770.31 con- weighing the operational, security, and tains a list of the major naval installa- safety requirements of SUBASE Ban- tions in Hawaii. This list is not consid- gor with the purpose, size of party, du- ered to be all inclusive and is included ration of visit, destination, and mili- only as a representative guide. For the tary resources which would be required purposes of this subpart the area of by the granting of the request. water within Pearl Harbor is consid- ered to be within a naval installation. § 770.20 Violations. (b) Outleased areas. Certain portions (a) Any person entering or remaining of naval installations in Hawaii which on SUBASE Bangor, without the con- are not for the time needed for public sent of the Commanding Officer, use or for which a dual use is feasible SUBASE Bangor or his authorized rep- have been outleased to private inter- resentative, shall be subject to the pen- ests. Examples of such outleased areas alties prescribed by 18 U.S.C. 1382, are the Moanalua Shopping Center and which provides in pertinent part: lands such as Waipio Peninsula, which
494
VerDate 25
has been outleased for agricultural pur- Therefore, entry onto a command or poses. For the purpose of this Subpart, into part of a command may be con- outleased areas which are not within trolled by the commander through the fenced portions of naval installations imposition of such restrictions as may are not considered to be a part of naval be required by attendant cir- installations. Rules for entry onto the cumstances. Within the State of Ha- outleased areas are made by the les- waii, entry into a naval installation is sees, except in the case of Waipio Pe- not permitted without the permission ninsula where the lessee (Oahu Sugar of the responsible commander. Company) is not authorized to allow anyone to enter Waipio Peninsula for § 770.29 Entry procedures. any purpose not connected with sugar cane production. (a) Operational, security, and safety considerations take priority over re- § 770.27 Background. quests by individuals to visit a naval (a) Naval installations in Hawaii con- installation. Consistent with such con- stitute a significant element of the na- siderations, visits by members of the tional defense establishment. It is vital general public may be authorized at to the national defense that the use of the discretion of the commander. The such areas be at all times under the commitment of resources which would positive control of the Department of be required to safeguard the persons the Navy. Strict control must be exer- and property of visitors as well as mili- cised over access to naval installations tary property and personnel must of in order to preclude damage accidental necessity preclude or severely restrict and intentional to Government prop- such visiting. The purpose and dura- erty, injury to military personnel, and tion of the visit and the size of the interference in the orderly accomplish- party and areas to be visited are other ment of the mission of command. considerations which may affect the (b) There are several industrial areas commander’s decision whether to per- within naval installations in Hawaii mit visiting by members of the public. wherein construction activities and the (b) Any person or group desiring to use of heavy machinery pose grave risk enter a particular naval installation or of danger to visitors. portion thereof, shall submit a written (c) Various types of flammable or in- request to the commander of the in- cendiary materials and ordnance are stallation well enough in advance to stored at a number of locations within allow a reasonable time for reply by naval installations in Hawaii. mail. Mailing addresses for command- (d) Classified documents and equip- ers of major installations covered by ment requiring protection from unau- this subpart are listed in § 770.31. Full thorized disclosure by Executive order compliance with a naval installation’s 12065 for reasons of national security local visitor registration and entry are located at various locations within control procedures shall be deemed the naval installations in Hawaii. equivalent of obtaining the advance (e) In order to effect the positive con- consent of the commander for entrance trol of the Navy over its installations upon the installation for the purpose of in Hawaii, it is essential that entry this subpart. Authorization to enter onto those installations be restricted to authorized persons only. one naval installation or a portion of (f) These entry regulations are being one installation does not necessarily promulgated under the authority of include the authorization to enter any Commander, Naval Base, Pearl Harbor, other naval installation or all portions who has been assigned as immediate of an installation. area coordinator for all naval installa- tions in the State of Hawaii by Com- § 770.30 Violations. mander-in-Chief, U.S. Pacific Fleet. (a) Any person entering or remaining on a naval installation in the State of § 770.28 Entry restrictions. Hawaii, without consent of the com- Each commander is responsible for mander or his authorized representa- the security of his/her command. tive, shall be subject to the penalties of
495
VerDate 25
a fine of not more than $500 or impris- (7) Naval and Marine Corps Reserve onment for not more than six months, Training Center, Honolulu. Contact: or both. See 18 U.S.C. 1382. Commanding Officer, Naval and Marine (b) Moreover, any person who will- Corps Reserve Training Center, Honolulu, fully violates this regulation is subject 530 Peltier Avenue, Honolulu, HI 96818. to a fine not to exceed $5,000 or impris- (8) Military Sealift Command Office. onment for one year, or both. See 50 Contact: U.S.C. 797. Commander, Naval Base, Pearl Harbor, HI § 770.31 List of major naval installa- 96860. tions in the State of Hawaii and cognizant commanders authorized (9) Mauna Kapu (Pacific Missile to grant access under these regula- Range Facility). Contact: tions. Commanding Officer, Pacific Missile Range (a) On Oahu. (1) Naval Base, Pearl Facility, Hawaiian Area, Barking Sands, Harbor (including the Naval Station, Kekaha, Kauai, HI 96752. Naval Submarine Base, Naval Ship- (10) Kunia Facility; FORACS III yard, Naval Supply Center, Naval Pub- Sites; Degaussing Station, Waipio Pe- lic Works Center, Marine Barracks, ninsula; Damon Tract (Remanant) Ford Island, Bishop Point Dock Area, Opana Communciations Site. Contact: Commander-in-Chief Pacific Fleet and Commander Naval Logistics Command Commander, Naval Base, Pearl Harbor, HI 96860. Headquarters Areas, Johnson Circle Navy Exchange/Commissary Store (11) Outlying areas of the Naval Sup- Area, Navy-Marine Golf Course, mis- ply Center, Pearl Harbor (including the cellaneous other commands, and areas Ewa Junction Storage Area, Ewa Drum within the Naval Base, Pearl Harbor Storage Area, Manana Supply Area, complex, and the waters of Pearl Har- Pearl City Supply Area, and the Red bor). Contact: Hill Fuel Storage Area). Contact: Commander, Naval Base, Pearl Harbor, HI Commander, Naval Base, Pearl Harbor, HI 96860. 96860. (2) Naval Western Oceanography Cen- (12) Pump Stations (Halawa, Waiawa, ter, Pearl Harbor. Contact: Red Hill, and Barbers Point). Contact: Commander, Naval Base, Pearl Harbor, HI Commanding Officer, Naval Western Ocean- 96860. ography Center, Box 113, Pearl Harbor, HI 96860. (13) Halawa Water Storage Area; Bar- (3) Naval Air Station, Barbers Point. bers Point, Independent Water Supply Contact: Reservoir Site; Sewage Treatment Plant; Fort Kam (tri-service); Utility Commanding Officer, Naval Air Station, Bar- Corridors, Lynch Park (Ohana Nui). bers Point, HI 96862. Contact: (4) Naval Communication Area Mas- Commander, Naval Base, Pearl Harbor, HI ter Station, Eastern Pacific, Wahiawa. 96860. Contact: (14) Navy housing areas (including Commanding Officer, Naval Communication Moanalua Terrace, Radford Terrace, Area Master Station, Eastern Pacific, Makalapa, Maloelap, Halsey Terrace, Wahiawa, HI 96786. Catlin Park, Hale Moku, Pearl Harbor, (5) Naval Magazine (Lualualei, Naval Shipyard, McGrew Point, Waikele, and West Loch). Contact: Halawa, Hokulani, Manana, Pearl City Peninsula, Red Hill, Iroquois Point, Commanding Officer, Naval Magazine, Puuloa, and Camp Stover). Contact: Lualualei, HI 96792. Commander, Naval Base, Pearl Harbor, HI (6) Naval Radio Transmitting Facil- 96860. ity, Lualualei. Contact: (b) On Kauai. Commanding Officer, Naval Base, Pearl Har- (1) Pacific Missile Range Facility, bor, HI 96860. Barking Sands, Kekaha.
496
VerDate 25
Contact: Commanding Officer, Pacific Mis- U.S. Navy installation or property in sile Range Facility, Hawaiian Area, Bark- Puerto Rico at anytime, by any person ing Sands, Kekaha, HI 96752. for any purpose whatsoever without (c) Other areas. the advance consent of the Command- (1) Kaho’olawe Island. Contact: ing Officer of the installation or prop- erty concerned, or an authorized rep- Commander Naval Base, Pearl Harbor, HI resentative of that Commanding Offi- 96860. Also see 32 CFR Part 763. cer, is prohibited. (2) Kaula. Contact: § 770.39 Entry procedures. Commander Naval Base, Pearl Harbor, HI 96860. (a) Any person or group of persons desiring to obtain advance consent for [44 FR 76279, Dec. 26, 1979, as amended at 52 entry upon any U.S. Naval installation FR 20074, May 29, 1987] or property in Puerto Rico from the Commanding Officer of the Naval in- Subpart D—Entry Regulations for stallation or property, or an authorized Naval Installations and Prop- representative of that Commanding Of- erty in Puerto Rico ficer, shall present themselves at an authorized entry gate at the installa- SOURCE: 46 FR 22756, Apr. 21, 1981, unless tion or property concerned or, in the otherwise noted. alternative, submit a request in writ- ing to the following respective address- § 770.35 Purpose. es: The purpose of this subpart is to pro- (1) Commanding Officer, U.S. Naval mulgate standard regulations and pro- Station, Roosevelt Roads, Box 3001, cedures governing entry upon U.S. Ceiba, PR 00635. Naval installations and properties in (2) Officer in Charge, Naval Ammuni- Puerto Rico. tion Facility, Box 3027, Ceiba, PR 00635. (3) Commanding Officer, U.S. Naval § 770.36 Definitions. Security Group Activity, Sabana Seca, For purposes of these regulations, PR 00749. U.S. Naval installations and properties (b) The above Commanding Officers in Puerto Rico include, but are not are authorized to provide advance con- limited to, the U.S. Naval Station, sent only for installations and prop- Roosevelt Roads (including the Vieques erties under their command. Requests Island Eastern Annexes, consisting of for entry authorization to any other fa- Camp Garcia, the Eastern Maneuver cility or property shall be addressed to Area, and the Inner Range); the Naval the following: Ammunition Facility, Vieques Island; Commander, U.S. Naval Forces, Carib- and the Naval Security Group Activity, bean, Box 3037, Ceiba, PR 00635. Sabana Seca. (c) Each request for entry will be considered on an individual basis and § 770.37 Background. consent will be determined by applica- In accordance with 32 CFR 765.4, ble installation entry instructions. Naval installations and properties in Factors that will be considered include Puerto Rico are not open to the gen- the purpose of visit, the size of party, eral public, i.e., they are ‘‘closed’’ mili- duration of visit, destination, security tary bases. Therefore admission to the safeguards, safety aspects, and the general public is only by the permis- military resources necessary if the re- sion of the respective Commanding Of- quest is granted. ficers in accordance with their respec- tive installation instructions. § 770.40 Violations. Any person entering or remaining on § 770.38 Entry restrictions. U.S. Naval installations and properties Except for duly authorized military in Puerto Rico, without the advance personnel and civilian employees, in- consent of those officials hereinabove cluding contract employees, of the enumerated, or their authorized rep- United States in the performance of resentatives, shall be considered to be their official duties, entry upon any in violation of these regulations and
497
VerDate 25
therefore subject to the penalties pre- § 770.44 Entry restrictions. scribed by 18 U.S.C. 1382, which pro- Except for military personnel, their vides in pertinent part: ‘‘Whoever, authorized dependents, or guests, and within the jurisdiction of the United employees of the United States in the States, goes upon any military, naval performance of their official duties, * * * reservation, post, fort, arsenal, entry upon Naval Submarine Base New yard, station, or installation, for any London, or remaining thereon by any purpose prohibited by law or lawful person for any purpose without the ad- regulation * * * shall be fined not more vance consent of the Commanding Offi- than $500.00 or imprisoned not more cer, Naval Submarine Base New Lon- than six months, or both,’’ or any other don, or his authorized representative is applicable laws or regulations. prohibited. See 18 U.S.C. 1382j, the In- ternal Security Act of 1950 (50 U.S.C. Subpart E—Base Entry Regulations 797); Chief of Naval Operations Instruc- for Naval Submarine Base tion 5510.45B of April 19, 1971; and Sec- New London, Groton, Con- retary of the Navy Instruction 5511.36 necticut of December 20, 1980. § 770.45 Entry procedures. AUTHORITY: 50 U.S.C. 797; DoD Directive 5200.8 of July 29, 1980; SECNAVINST 5511.36 (a) Any individual person or group of of December 20, 1980; OPNAVINST 5510.45 of persons desiring the advance consent of April 19, 1971; 5 U.S.C. 301; 10 U.S.C. 6011; 32 the Commanding Officer, Naval Sub- CFR 700.702; 32 CFR 700.714. marine Base New London, or his au- SOURCE: 48 FR 5555, Feb. 7, 1983, unless oth- thorized representative shall, in writ- erwise noted. ing, submit a request to the Command- ing Officer, Naval Submarine Base New § 770.41 Purpose. London, at the following address: Com- The purpose of this subpart is to pro- manding Officer (Attn: Security Offi- mulgate regulations and procedures cer), Box 38, Naval Submarine Base governing entry upon Naval Submarine New London, Groton, CT 06349. Base New London, and to prevent the (b) Each request for entry will be interruption of the stated functions considered on an individual basis and operations of Naval Submarine weighing the operational, security, and Base New London, by the presence of safety requirements of Naval Sub- any unauthorized person within the marine Base New London with the pur- boundaries of Naval Submarine Base pose, size of party, duration of visit, New London. destination, and military resources which would be required by the grant- § 770.42 Background. ing of the request. Naval Submarine Base New London maintains and operates facilities to § 770.46 Violations. support training and experimental op- (a) Any person entering or remaining erations of the submarine force includ- on Naval Submarine Base New London, ing providing support to submarines, without the consent of the Command- submarine rescue vessels, and assigned ing Officer, Naval Submarine Base New service and small craft; within capa- London or his authorized representa- bilities, to provide support to other ac- tive, shall be subject to the penalties tivities of the Navy and other govern- prescribed in 18 U.S.C. 1382, which pro- mental activities in the area; and to vides in pertinent part: perform such other functions as may be Whoever, within the jurisdiction of the directed by competent authority. United States, goes upon any military, naval . . . reservation, post, fort, arsenal, yard, § 770.43 Responsibility. station, or installation, for any purpose pro- The responsibility for proper identi- hibited by law or lawful regulation . . . shall fication and control of personnel and be fined not more than $500 or imprisoned vehicle movement on the Naval Sub- not more than six months or both. marine Base New London is vested (b) Moreover, any person who will- with the Security Officer. fully violates this subpart is subject to
498
VerDate 25
a fine not to exceed $5000 or imprison- the Southerly margin of Burwell Ave- ment for not more than one (1) year or nue; thence Easterly approximately both as provided in 50 U.S.C. 797. 1315 feet to a point approximately 90 feet West of the West margin of Pacific Subpart F—Base Entry Regulations Avenue, to the line common to Lots 22 for Puget Sound Naval Ship- and 23, Block 13, said Original Town of yard, Bremerton, Washington Bremerton; thence Southerly to the Northerly margin of the East-West
AUTHORITY: 50 U.S.C. 797; DoD Directive alley in said Block 13; thence Easterly 5200.8 of July 29, 1980; SECNAVINST 5511.36 to the Northerly extension of the West- of December 20, 1980; OPNAVINST 5510.45B of erly margin of the North-South alley April 19, 1971; 5 U.S.C. 301; 10 U.S.C. 6011; 32 in Block 12, said Original Town of CFR 700.702; 32 CFR 700.714. Bremerton; thence Southerly to the SOURCE: 48 FR 9858, Mar. 9, 1983, unless oth- Southerly margin of First Street; erwise noted. thence Easterly to the Westerly mar- gin of First Street; thence Easterly to § 770.47 Purpose. the Westerly margin of the North- The purpose of this subpart is to pro- South alley in Block 10, said Original mulgate policy governing entry upon Town of Bremerton; thence Southerly Puget Sound Naval Shipyard. to the Northwesterly margin of Wash- ington Avenue; thence Southeasterly § 770.48 Definition. to the Northwesterly corner of Lot 9, For the purpose of this subpart, Block 1, said Original Town of Bremer- Puget Sound Naval Shipyard is defined ton; thence Southeasterly on the line as follows: common to Lots 8 and 9, Block 1, and (a) Beginning at a point, latitude its Southeasterly extension to a point 122°39′37″W, longitude 47°33′05″N, a point near the Washington State Ferry Ter- on the MHHW line of Sinclair Inlet on an East-West line approximately 100 minal at the MHHW line of Sinclair ° ′ ″ yards clear off the Southerly end of the Inlet located at Latitude 122 37 27 W, ° ′ ″ Naval Shipyard shoreline, piers or dry- longitude 47 33 44 N. dock facilities; thence Northeasterly to the South margin of Primary State § 770.49 Background. Highway No. 21, thence Northeasterly (a) Puget Sound Naval Shipyard is a on the Southeasterly margin of Pri- major naval ship repair facility, with mary State Highway No. 21 to the Eas- operational requirements to complete terly margin of Cambrian Avenue; repairs and overhaul of conventionally thence Northerly to the Southerly powered and nuclear powered naval margin of Farragut Street; thence Eas- vessels. It is vital to national defense terly to the line common to Sections 22 that the operation and use of the ship- and 23, Township 24 North, Range 1 yard be continued without undue or East, W.M. which is approximately 100 unnecessary interruptions. Addition- feet East of the East margin of Mont- ally, most of Puget Sound Naval Ship- gomery Street; thence Northerly to the yard is dedicated to heavy industrial corner common to Sections 14, 15, 22, activity where potentially hazardous and 23, Township 24 North, Range 1 conditions exist. East, W.M., which is the South margin of First Street; thence Easterly on the (b) For prevention of the interruption line common to Sections 14 and 23 to of the stated use of Puget Sound Naval the Easterly margin of Chester Avenue; Shipyard by the presence of any unau- thence Northerly approximately 335 thorized person within the boundaries feet on the Easterly margin of Chester of Puget Sound Naval Shipyard and Avenue to the Southerly margin of the prevention of injury to any such unsu- East-West alley in Block 21, Original pervised person as a consequence to the Town of Bremerton as recorded in Vol- hazardous conditions which exist, as ume 2 of Plats, page 30, Records of well as for other reasons, it is essential Kitsap County, Washington; thence to restrict entry upon Puget Sound Easterly to the Easterly margin of Naval Shipyard to authorized persons Warren Avenue; thence Northerly to only.
499
VerDate 25
§ 770.50 Entry restrictions. onment for not more than one (1) year or both as provided in 50 U.S.C. 797. Except for military personnel and ci- vilian employees of the United States in the performance of their official du- Subpart G—Entry Regulations for ties, entry upon Puget Sound Naval Portsmouth Naval Shipyard, Shipyard, or remaining thereon by any Portsmouth, New Hampshire person whoever for any purpose with- out the advance consent of the Com- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 6011, 18 mander, Puget Sound Naval Shipyard, U.S.C. 1382; 50 U.S.C. 797; DOD Directive or his authorized representative, is pro- 5200.8 of July 29, 1980; 32 CFR 700.702; 32 CFR hibited. See 18 U.S.C. 1382; the Internal 700.714; SECNAVINST 5511.36 of December 20, Security Act of 1950, section 21 (50 1980; OPNAVINST 5530.14 of June 10, 1983; COMNAVSEASYSCOMINST 5510.2A of June U.S.C. 797); Chief of Naval Operations 19, 1981. Instruction 5510.45B of April 19, 1971; Secretary of the Navy Instruction SOURCE: 49 FR 34003, Aug. 28, 1984, unless 551.36 of December 20, 1980; and Depart- otherwise noted. ment of Defense Directive 5200.8 of July § 770.53 Purpose. 29, 1980. To promulgate regulations and proce- § 770.51 Entry procedures. dures governing entry upon Ports- mouth Naval Shipyard, and to prevent (a) Any person or group of persons the interruption of the functions and desiring the advance consent of the operations of Portsmouth Naval Ship- Commander, Puget Sound Naval Ship- yard by the presence of any unauthor- yard, or his authorized representative, ized person within the boundaries of shall, in writing, submit a request to Portsmouth Naval Shipyard. the Commander, Puget Sound Naval Shipyard, at the following address: § 770.54 Background. Commander, Puget Sound Naval Ship- (a) Portsmouth Naval Shipyard yard, Bremerton, WA 98314. maintains and operates facilities ‘‘to (b) Each request for entry will be provide logistic support for assigned considered on an individual basis ships and service craft; to perform au- weighing the operational, security and thorized work in connection with con- safety requirements of Puget Sound struction, conversion, overhaul, repair, Naval Shipyard with the purpose, size alteration, drydocking, and outfitting of party, duration of visit, destination, of ships and craft, as assigned; to per- and military resources which would be form manufacturing, research, develop- required by the granting of this re- ment, and test work, as assigned; and quest. to provide services and material to § 770.52 Violations. other activities and units, as directed by competent authority.’’ (a) Any person entering or remaining (b) Portsmouth Naval Shipyard is a on Puget Sound Naval Shipyard, with- major naval ship repair facility, with out the consent of the Commander, operational requirements to complete Puget Sound Naval Shipyard, or his au- repairs and overhaul of conventionally thorized representative, shall be sub- powered and nuclear-powered naval ject to the penalties prescribed by 18 vessels. It is vital to national defense U.S.C. 1382, which provides in pertinent that the operation and use of the ship- part: yard be continued without undue or Whoever, within the jurisdiction of the unnecessary interruptions. Addition- United States, goes upon any military, naval ally, most of Portsmouth Naval Ship- * * * reservation, post, fort, arsenal, yard, yard is dedicated to heavy industrial station or installation, for any purpose pro- activity where potentially hazardous hibited by law or lawful regulation * * * conditions exist. shall be fined not more than $500.00 or im- (c) For prevention of interruption of prisoned not more than six months or both. the stated use of the base by the pres- (b) Moreover, any person who will- ence of any unauthorized person within fully violates this subpart is subject to the boundaries of Portsmouth Naval a fine not to exceed $5000.00 or impris- Shipyard, and prevention of injury to
500
VerDate 25
any such unsupervised person as a con- ject to the penalties prescribed in 18 sequence of the dangerous conditions U.S.C. 1382, which provides in pertinent which exist, as well as for other rea- part: sons, it is essential to restrict entry Whoever, within the jurisdiction of the upon Portsmouth Naval Shipyard to United States, goes upon any military, naval authorized persons only. . . . reservation, post, fort, arsenal, yard, station, or installation, for any purpose pro- § 770.55 Responsibility. hibited by law or lawful regulation . . . Shall The responsibility for proper identi- be fined not more than $500 or imprisoned fication and control of personnel and not more than six months, or both. vehicle movement on the Portsmouth (b) Moreover, any person who will- Naval Shipyard is vested with the fully violates this instruction is sub- Shipyard Security Manager (Code 830). ject to a fine not to exceed $5000 or im- prisonment for not more than one (1) § 770.56 Entry restrictions. year, or both, as provided by 50 U.S.C. Except for military personnel, their 797. authorized dependents, or guests, and civilian employees of the United States PARTS 771–774 [RESERVED] in the performance of their official du- ties, entry upon Portsmouth Naval Shipyard, or remaining thereon by any PART 775—PROCEDURES FOR IM- person for any purpose without the ad- PLEMENTING THE NATIONAL EN- vance consent of the Commander, VIRONMENTAL POLICY ACT Portsmouth Naval Shipyard, or his au- thorized representative, is prohibited. Sec. In many instances, Commander, Naval 775.1 Purpose. Sea Systems Command, approval is re- 775.2 Scope. quired. 775.3 Policy. 775.4 Responsibilities. § 770.57 Entry procedures. 775.5 Classified actions. 775.6 Planning considerations. (a) Any person or group desiring the 775.7 Time limits for environmental docu- advance consent of the Commander, ments. Portsmouth Naval Shipyard, or his au- 775.8 Scoping. thorized representative, shall, in writ- 775.9 Documentation and analysis. ing, submit a request to the Com- 775.10 Relations with state, local and re- mander, Portsmouth Naval Shipyard, gional agencies. 775.11 Public participation. at the following address: Commander, 775.12 Action. Portsmouth Naval Shipyard, Ports- mouth, NH 03801, Attention: Security AUTHORITY: 5 U.S.C. 301; 42 U.S.C. 4321–4361; Manager (Code 830). For groups, foreign 40 CFR parts 1500–1508. citizens, and news media, the request SOURCE: 55 FR 33899, Aug. 20, 1990, unless must be forwarded to the Commander, otherwise noted. Naval Sea Systems Command, for ap- proval. § 775.1 Purpose. (b) Each request for entry will be To supplement Department of De- considered on an individual basis, fense (DOD) regulations (32 CFR part weighing the operational, security, and 214) by providing policy and assigning safety requirements of Portsmouth responsibilities to the Navy and Marine Naval Shipyard, with the purpose, size Corps for implementing the Council on of party, duration of visit, destination, Environmental Quality (CEQ) regula- and military resources which would be tions (40 CFR parts 1500–1508) imple- required by the granting of the request. menting procedural provisions of the National Environmental Policy Act § 770.58 Violations. (NEPA). (a) Any person entering or remaining on Portsmouth Naval Shipyard with- § 775.2 Scope. out the consent of the Commander, The policies and responsibility as- Portsmouth Naval Shipyard, or his au- signments of this part apply to the Of- thorized representative, shall be sub- fice of the Secretary of the Navy, the
501
VerDate 25
Department of the Navy (DON), and territories, and possessions in accord- the Navy and Marine Corps operating ance with DOD and CEQ regulations; forces and shore establishments. This (2) Use a systematic, interdiscipli- part is limited to the actions of these nary approach that will ensure the in- elements with environmental effects in tegrated use of the natural and social the United States, its territories, and sciences and environmental consider- possessions. ations in planning and decisionmaking where there may be an impact on § 775.3 Policy. man’s environment; (a) The Department of the Navy will (3) Ensure that presently unmeasured act with care to ensure that, in con- environmental amenities are consid- ducting its mission of providing for the ered in the decisionmaking process; national defense, it does so in a manner (4) Consider the reasonable alter- consistent with national environ- natives to recommended actions in any mental policies. In so doing, the Navy proposal that would involve unresolved recognizes that the NEPA process in- conflicts concerning alternative uses of cludes the systematic examination of available resources; the likely environmental consequences (5) Make available to states, coun- of implementing a proposed action. To ties, municipalities, institutions, and be an effective decisionmaking tool individuals advice and information use- this process will be integrated with ful in restoring, maintaining, and en- other Navy-Marine Corps project plan- hancing the quality of the environ- ning at the earliest possible time. This ment; and ensures that planning and decision- (6) Use ecological information in making reflect environmental values, planning and developing resource-ori- avoid delays, and avoid potential con- ented projects. flicts. Care will be taken to ensure that, consistent with other national § 775.4 Responsibilities. policies and national security require- ments, practical means and measures (a) The Assistant Secretary of the are used to protect, restore, and en- Navy for Installations and Environ- hance the quality of the environment, ment (ASN(I&E)) shall: to avoid or minimize adverse environ- (1) Advise the Secretary of the Navy mental consequences, and to attain the on DON policy regarding NEPA compli- objectives of: ance. (1) Achieving the widest range of ben- (2) Be the principal point-of-contact eficial uses of the environment without with the CEQ, Environmental Protec- degradation, risk to health and safety, tion Agency (EPA), the Deputy Assist- or other consequences that are undesir- ant Secretary of Defense for Environ- able and unintended; ment (DASD(E)), other DOD compo- (2) Preserving important historic, nents and federal agencies concerned cultural, and natural aspects of our na- with NEPA matters, and with private tional heritage, and maintaining, environmental groups as applicable. where possible, an environment that (3) Direct and/or, upon recommenda- supports diversity and variety of indi- tion, approve the preparation of Envi- vidual choice; ronmental Impact Statements (EIS); (3) Achieving a balance between re- and, after preparation, approve and for- source use and development within the ward said statements to the EPA and sustained carrying capacity of the eco- DASD(E) for review and comment. system involved; and (4) Approve and forward to the Navy (4) Enhancing the quality of renew- Judge Advocate General (JAG) Find- able resources and working toward the ings of No Significant Impact (FONSI) maximum attainable recycling of de- for publication in the FEDERAL REG- pletable resources. ISTER for those actions of national con- (b) The DON shall: cern that the Navy/Marine Corps has (1) Assess environmental con- determined will not have a significant sequences of proposed actions that effect on the quality of the human en- could affect the quality of the human vironment and for which an EIS will environment in the United States, its not be prepared.
502
VerDate 25
(5) Approve and forward to the Navy entities for which DON involvement JAG, for publishing in the FEDERAL may be reasonably foreseen. REGISTER, a Record of Decision (ROD) (8) Ensuring that relevant environ- which will summarize for the public mental documentation accompanies all record the decision made by the Navy/ proposals for action through the appro- Marine Corps among the alternatives priate review process so that such in- presented in a Final EIS. formation is available to the decision (6) Maintain liaison with the Chief of maker. Information who will coordinate with (c) The Chief of Naval Operations and the Assistant Secretary of Defense the Commandant of the Marine Corps (Public Affairs) those environmental are to comply with these procedures by matters which have significant public subsequently directing subordinates to: affairs implications. (1) Ensure all appropriate instruc- (7) Maintain liaison with the Office of tions, directives, and orders include the Legislative Affairs who will coordinate requirement for funding and planning with the Assistant Secretary of De- for environmental documentation, as fense (Legislative Affairs) and the Con- required. gress those environmental matters (2) Conduct analyses of the environ- which have significant legislative im- mental effects of current and proposed plications. actions in accordance with DOD regu- (b) The Chief of Naval Operations, or lations, CEQ regulations (40 CFR parts his designee(s), and the Commandant of 1500–1508), and other applicable regula- the Marine Corps, or his designee(s), tions. (3) Encourage, to the extent prac- are responsible, within their respective ticable, citizen participation in envi- services, for NEPA compliance, which ronmental evaluations of projects or includes: programs. (1) Implementing DON policy regard- (4) Evaluate environmental impacts ing protection of the environment to at initial planning stages and at each include NEPA compliance. following significant step or decision (2) Advising commands of the re- milestone in the development of a quirement for submitting environ- project or program, as warranted. mental assessments or impact state- ments and identifying major decision § 775.5 Classified actions. points in the chain of command where (a) The fact that a proposed action is environmental effects shall be consid- of a classified nature does not relieve ered. the proponent of the action from com- (3) Making decisions on environ- plying with NEPA and the CEQ regula- mental assessments as to whether a tions. Therefore, environmental docu- Finding of No Significant Impact is ap- ments shall be prepared, safeguarded propriate or preparation of an environ- and disseminated in accordance with mental impact statement is required. the requirements applicable to classi- (4) Coordinating, as appropriate, with fied information. When feasible, these CEQ, EPA, DASD(E), ASN(I&E), other documents shall be organized in such a DOD components and federal agencies manner that classified portions are in- concerned with environmental matters. cluded as appendices so that unclassi- (5) Serving as the point of contact for fied portions can be made available to DON environmental matters. the public. Review of classified NEPA (6) Coordinating, as appropriate, with documentation will be coordinated the Chief of Information for the release with the Environmental Protection to the public of environmental assess- Agency (EPA) to fulfill requirements of ments, impact statements, Findings of section 309 of the Clean Air Act (42 No Significant Impact, and other envi- U.S.C. 7609 et seq.). ronmental documents, according to the (b) It should be noted that a classi- Freedom of Information Act and other fied EA/EIS serves the same ‘‘informed applicable federal laws. decisionmaking’’ purpose as does a (7) Providing assistance for actions published unclassified EA/EIS. Even initiated by private persons, state or though the classified EA/EIS does not local agencies and other non-DON/DOD undergo general public review and
503
VerDate 25
comment, it must still be part of the Department of Navy to include activi- information package to be considered ties which are presently being carried by the decisionmaker for the proposed out in fulfillment of the Navy mission action. The content of a classified EA/ and function, including existing train- EIS (or the classified portion of a pub- ing functions, where: lic EA/EIS) will therefore meet the (1) The currently occurring environ- same content requirements applicable mental effects of which have not been to a published unclassified EA/EIS. previously evaluated in a NEPA docu- ment, and there is a discovery that § 775.6 Planning considerations. substantial environmental degradation (a) When integrating the NEPA proc- is occurring, or is likely to occur, as a ess into early stages of proposed ac- result of ongoing operations (e.g., a dis- tions, action proponents will determine covery that significant beach erosion is as early as possible the appropriate occurring as a result of continuing am- level of documentation required under phibious exercises, new designation of NEPA, i.e., is the action a major fed- wetland habitat, or discovery of an en- eral action significantly affecting the dangered species residing in the area of human environment requiring an envi- the activity), or ronmental impact statement (EIS), is (2) There is a discovery that the envi- the action one for which the impacts ronmental effects of an ongoing activ- are not known or which may not be sig- ity are significantly and qualitatively nificant and, therefore, an environ- different or more severe than predicted mental assessment (EA), is appro- in a NEPA document prepared in con- priate, or is the action one that has no nection with the commencement of the potential for significant impacts and activity. can be categorically excluded from fur- ther NEPA documentation. In addition, A substantial change in a continuing CEQ regulations (40 CFR 1501.5 and activity (such as a substantial change 1501.6) require early identification of in operational tempo, area of use, or in lead and cooperative agencies for prep- methodology/equipment) which has the aration of an EIS for which more than potential for significant environmental one agency is involved or has special impacts should be considered a pro- expertise in environmental issues to be posal for a new action and be docu- addressed in the EIS. mented accordingly. Preparation of a (b) The command responsible for NEPA document is not a necessary pre- preparation of the appropriate docu- requisite, nor a substitute, for compli- mentation may prepare an EA on any ance with other environmental laws. action at any time in order to assist in (d) Where emergency circumstances planning and decisionmaking, includ- require immediate action, for the pro- ing the decision whether or not to pre- tection of lives and for public health pare an EIS. If a determination is made and safety, which could result in sig- based on information presented in an nificant harm to the environment, the environmental assessment that an EIS activity Commanding Officer or his is not required, a Finding of No Signifi- designee shall report the emergency cant Impact (FONSI) will be prepared action to CNO (OP–44E)/CMC (LFL) and made available to the public in ac- who will facilitate the appropriate con- cordance with CEQ regulations (40 CFR sultation with CEQ as soon as prac- 1506.6). ticable. (c) CEQ regulations (40 CFR (e) CEQ regulations provide for the 1508.18(a)) define major federal actions establishment of categorical exclusions subject to evaluation under NEPA to (40 CFR 1508.4) for those actions which, include, among other things, ‘‘new and after consideration by the Department continuing activities’’. The term new of the Navy, have been found not to activities is intended to encompass fu- have a significant effect on the human ture actions, i.e., those which are not environment, individually or cumula- ongoing at the time of the proposal. tively, under normal circumstances, The term continuing activities which and for which, therefore, neither an EA may necessitate the preparation of a nor an EIS is required. Categorical ex- NEPA document will be applied by the clusions are applicable to those kinds
504
VerDate 25
of Navy actions which do not signifi- form as operational groups, and/or re- cantly affect the quality of the human pair and overhaul. environment, which do not result in (4) Relocation of personnel into exist- any significant change from existing ing federally-owned or commercially- conditions at the site of the proposed leased space which does not involve a action, and whose effect is primarily substantial change in the supporting economic or social. ‘‘Normal cir- infrastructure (e.g., an increase in ve- cumstances’’ means that the proposal, hicular traffic beyond the capacity of when analyzed with respect to context the supporting road network to accom- and intensity, can reasonably be ex- modate such an increase). pected to not cause significant im- (5) Studies, data and information- pacts. Even though a proposal gen- gathering that involve no physical erally fits the description set out below change to the environment, e.g., topo- for categorical exclusions, the categor- graphic surveys, bird counts, wetland ical exclusion should not be used if the mapping, forest inventories, and tim- proposed action: ber cruising. (1) Would affect public health or safe- (6) Routine repair and maintenance ty; of facilities and equipment in order to (2) Involves a site that includes wet- maintain existing operations and ac- lands, endangered or threatened spe- tivities, including maintenance of im- cies, historical or archaeological re- proved and semi-improved grounds sources, or hazardous wastes; such as landscaping, lawn care, and minor erosion control measures. (3) Involves effects on the human en- (7) Alteration of and additions to ex- vironment that are highly uncertain, isting structures to conform or provide involve unique or unknown risks, or conforming use specifically required by which are scientifically controversial; new or existing applicable legislation (4) Establishes precedents or makes or regulations, e.g., hush houses for decisions in principle for future actions aircraft engines and scrubbers for air with significant effects, or; emissions. (5) Threatens a violation of federal, (8) Routine actions normally con- state or local law or requirements im- ducted to operate, protect, and main- posed for protection of the environ- tain Navy-owned and/or controlled ment. properties, e.g., maintaining law and (f) A decision to forego preparation of order, physical plant protection by an EA or EIS on the basis of one or military police and security personnel, more categorical exclusions shall be and localized pest management activi- documented, including the exclusions ties on improved and semi-improved found applicable, the facts supporting lands conducted in accordance with ap- their use and specific consideration of plicable federal and state directives. whether the exceptions to the use of (9) New construction that is consist- categorical exclusions, set out above, ent with existing land use and, when were applicable. The following are ac- completed, the use or operation of tions which, under normal conditions, which complies with existing regu- are categorically excluded from further latory requirements and constraints, documentation requirements under e.g., a building on a parking lot with NEPA: associated discharges/runoff within ex- (1) Routine personnel, fiscal, and ad- isting handling capacities, a bus stop ministrative activities involving mili- along a roadway, and a foundation pad tary and civilian personnel, e.g., re- for portable buildings within a building cruiting, processing, paying, and complex. records keeping. (10) Procurement activities that pro- (2) Reductions in force wherein im- vide goods and support for routine op- pacts are limited to socioeconomic fac- erations. tors. (11) Day-to-day manpower resource (3) Routine movement of mobile as- management and research activities sets, such as ships and aircraft, in that are in accordance with approved home port reassignments (when no new plans and inter-agency agreements and support facilities are required) to per- which are designed to improve and/or
505
VerDate 25
upgrade Navy ability to manage those stormwater, and irrigation pipelines, resources. pumping stations, and facilities; and (12) Decisions to close facilities, de- for similar utility and transportation commission equipment, and/or tempo- uses. rarily discontinue use of facilities or (19) Transfer of real property from equipment (where such equipment is the Navy to another military depart- not used to prevent/control environ- ment or to another federal agency, and mental impacts). This paragraph (f)(12) the granting of leases (including leases does not apply to permanent closure of granted pursuant to the agricultural public roads. outleasing program where soil con- (13) Contracts for activities con- servation plans are incorporated), per- ducted at established laboratories and mits and easements where there is no plants, to include contractor-operated substantial change in land use or where laboratories and plants, within facili- subsequent land use would otherwise be ties where all airborne emissions, wa- categorically excluded. terborne effluents, external radiation (20) Disposal of excess easement in- levels, outdoor noise, and solid and terests to the underlying fee owner. bulk waste disposal practices are in (21) Renewals and minor amendments compliance with existing applicable of existing real estate grants for use of federal, state, and local laws and regu- government-owned real property where lations. no significant change in land use is an- (14) Routine movement, handling and ticipated. distribution of materials, including (22) Pre-lease exploration activities hazardous materials/wastes that when for oil, gas or geothermal reserves, e.g., moved, handled, or distributed are in geophysical surveys. accordance with applicable regula- (23) Return of public domain lands to tions. the Department of the Interior. (15) Demolition, disposal, or improve- (24) Land withdrawal continuances or ments involving buildings or structures extensions which merely establish time not on or eligible for listing on the Na- periods and where there is no signifi- tional Register of Historic Places and cant change in land use. when in accordance with applicable regulations, including those regula- (25) Temporary closure of public ac- tions applying to removal of asbestos, cess to Navy property in order to pro- PCBs, and other hazardous materials. tect human or animal life. (16) Acquisition, installation, and op- (26) Engineering effort undertaken to eration of utility and communication define the elements of a proposal or al- systems, data processing cable, and ternatives sufficiently so that the envi- similar electronic equipment which use ronmental effects may be assessed. existing rights of way, easements, dis- (27) Actions which require the con- tribution systems, and/or facilities. currence or approval of another federal (17) Renewals and/or initial real es- agency where the action is a categor- tate ingrants and outgrants involving ical exclusion of the other federal existing facilities and land wherein use agency. does not change significantly. This in- (28) Maintenance dredging and debris cludes, but is not limited to, existing disposal where no new depths are re- federally-owned or privately-owned quired, applicable permits are secured, housing, office, storage, warehouse, and disposal will be at an approved dis- laboratory, and other special purpose posal site. space. (29) Installation of devices to protect (18) Grants of license, easement, or human or animal life, e.g., raptor elec- similar arrangements for the use of ex- trocution prevention devices, fencing isting rights-of-way or incidental ease- to restrict wildlife movement onto air- ments complementing the use of exist- fields, and fencing and grating to pre- ing rights-of-way for use by vehicles vent accidental entry to hazardous (not to include significant increases in areas. vehicle loading); electrical, telephone, (30) Natural resources management and other transmission and commu- actions undertaken or permitted pursu- nication lines; water, wastewater, ant to agreement with or subject to
506
VerDate 25
regulation by federal, state, or local or- lic hearing on the DEIS (40 CFR ganizations having management re- 1506.6(c)(2)). sponsibility and authority over the (2) Thirty days after publication of natural resources in question, includ- the notice of availability for a final en- ing hunting or fishing during hunting vironmental impact statement (FEIS). or fishing seasons established by state If the FEIS is available to the public authorities pursuant to their state fish within ninety days from the availabil- and game management laws. With re- ity of the DEIS, the minimum thirty gard to natural resources regulated by day period and the minimum nintey another federal agency, the responsible day period may run concurrently. How- command may cooperate in any envi- ever, not less than 45 days from publi- ronmental analysis that may be re- cation of notice of filing shall be al- quired by the other agency’s regula- lowed for public comment on draft tions. statements prior to filing of the FEIS (31) Approval of recreational activi- (40 CFR 1506.10(c)). ties which do not involve significant physical alteration of the environment § 775.8 Scoping. or increase human disturbance in sen- As soon as practicable after the deci- sitive natural habitats and which do sion to prepare an EIS is made, an not occur in or adjacent to areas inhab- early and open process called ited by endangered or threatened spe- ‘‘scoping’’ shall be used to determine cies. the scope of issues to be addressed and (32) Routine maintenance of timber to identify the significant issues to be stands, including issuance of down- analyzed in depth related to the pro- wood firewood permits, hazardous tree posed action (40 CFR 1501.7). This proc- removal, and sanitation salvage. ess also serves to deemphasize insig- (33) Reintroduction of endemic or na- nificant issues, narrowing the scope of tive species (other than endangered or the EIS process accordingly (40 CFR threatened species) into their historic 1500.4(g)). Scoping results in the identi- habitat when no substantial site prepa- fication by the proponent of the range ration is involved. of actions, alternatives, and impacts to [55 FR 33899, Aug. 20, 1990, as amended at 55 be considered in the EIS (40 CFR FR 39960, Oct. 1, 1990] 1508.25). For any action, this scope may depend on the relationship of the pro- § 775.7 Time limits for environmental posed action to other existing environ- documents. mental documentation. (a) The timing of the preparation, circulation, submission and public § 775.9 Documentation and analysis. availability of environmental docu- (a) Environmental documentation ments is important in achieving the and analyses required by this rule purposes of NEPA. Therefore, the should be integrated as much as prac- NEPA process shall begin as early as ticable with any environmental stud- possible in the decisionmaking process. ies, surveys and impact analyses re- (b) The EPA publishes a weekly no- quired by other environmental review tice in the FEDERAL REGISTER of envi- laws and executive orders (40 CFR ronmental impact statements filed 1502.25). When a cost-benefit analysis during the preceding week. The mini- has been prepared in conjunction with mum time periods set forth below shall an action which also requires a NEPA be calculated from the date of publica- analysis, the cost-benefit analysis shall tion of notices in the FEDERAL REG- be integrated into the environmental ISTER. No decision on the proposed ac- documentation. tion may take place until the later of (b) CEQ regulations encourage the the following dates: use of tiering whenever appropriate to (1) Ninety days after publication of eliminate repetitive discussions of the the notice of availability for a draft en- same issues and to focus on the actual vironmental impact statement (DEIS). issues ripe for discussion at each level Draft statements shall be available to of environmental review (40 CFR the public for 15 days prior to any pub- 1502.20). Tiering is accomplished
507
VerDate 25
through the preparation of a broad pro- when the subsequent tier itself may grammatic environmental impact have a significant impact on the qual- statement discussing the impacts of a ity of the human environment or when wide ranging or long term stepped pro- an impact statement is otherwise re- gram followed by narrower statements quired. Otherwise, it is appropriate to or environmental assessments con- document the tiered analysis with an centrating solely on issues specific to environmental assessment to fully as- the analysis subsequently prepared (40 sess the need for further documenta- CFR 1508.28). tion or whether a FONSI would be ap- (1) Appropriate use of tiering: Tiering propriate. is appropriate when it helps the lead agency to focus on issues which are § 775.10 Relations with state, local and ripe for decision and exclude from con- regional agencies. sideration issues already decided or not Close and harmonious planning rela- yet ripe. (40 CFR 1508.28(b).) The se- tions with local and regional agencies quence of statements or analyses is: and planning commissions of adjacent (i) From a broad program, plan, or cities, counties, and states, for co- policy environmental impact state- operation and resolution of mutual ment (not necessarily site specific) to a land use and environment-related prob- subordinate/smaller scope program, lems should be established. Additional plan, or policy statement or analysis coordination may be obtained from (usually site specific) (40 CFR 1508.28 state and area-wide planning and devel- (a)). opment ‘‘clearinghouses’’. These are (ii) From an environmental impact agencies which have been established statement on a specific action at an pursuant to Executive Order 12372 of early stage (such as need and site selec- July 14, 1982 (3 CFR, 1982 Comp., p. 197). tion) to a supplement (which is pre- The clearinghouses serve a review and ferred) or a subsequent statement or coordination function for Federal ac- analysis at a later stage (such as envi- tivities and the proponent may gain in- ronmental mitigation) (40 CFR sights on other agencies’ approaches to 1508.28(b)). environmental assessments, surveys, (iii) In addition to the discussion re- and studies in relation to any current quired by these regulations for inclu- proposal. The clearinghouses would sion in environmental impact state- also be able to assist in identifying pos- ments, the programmatic environ- sible participants in scoping proce- mental impact statement shall also dures for projects requiring an EIS. discuss: (A) A description of the subsequent § 775.11 Public participation. stages or sites that may ultimately be The importance of public participa- proposed in as much detail as presently tion (40 CFR 1501.4(b)) in preparing en- possible; vironmental assessments is clearly rec- (B) All of the implementing factors ognized and it is recommended that of the program that can be ascertained commands proposing an action develop at the time of impact statement prepa- a plan to ensure appropriate commu- ration; nication with affected and interested (C) All of the environmental impacts parties. The command Public Affairs that will result from establishment of Office can provide assistance with de- the overall program itself that will be veloping and implementing this plan. similar for subsequent stages or sites In determining the extent to which as further implementation plans are public participation is practicable, the proposed; and following are among the factors to be (D) All of the appropriate mitigation weighed by the command: measures that will be similarly pro- (a) The magnitude of the environ- posed for subsequent stages or sites. mental considerations associated with (iv) The analytical document used for the proposed action; stage or site specific analysis subse- (b) The extent of anticipated public quent to the programmatic environ- interest; and mental impact statement shall also be (c) Any relevant questions of na- an environmental impact statement tional security and classification.
508
VerDate 25
§ 775.12 Action. 776.38 Evaluation for use by third persons. 776.39 Meritorious claims and contentions. The Chief of Naval Operations and 776.40 Expediting litigation. the Commandant of the Marine Corps 776.41 Candor and obligations toward the shall, each, as appropriate: tribunal. (a) Provide guidelines and procedures 776.42 Fairness to opposing party and coun- for administrative direction and imple- sel. mentation of this part and CEQ regula- 776.43 Impartiality and decorum of tribunal. tions; and 776.44 Extra-tribunal statements. (b) Maintain a focal point for the co- 776.45 Judge advocate as witness. ordination of the preparation of envi- 776.46 Special responsibilities of a trial counsel. ronmental assessments and impact 776.47 Advocate in nonadjudicative proceed- statements. ings. 776.48 Truthfulness in statements to others. PART 776—PROFESSIONAL CON- 776.49 Communication with person rep- DUCT OF ATTORNEYS PRACTIC- resented by counsel. 776.50 Dealing with an unrepresented per- ING UNDER THE SUPERVISION OF son. THE JUDGE ADVOCATE GENERAL 776.51 Respect for rights of third persons. 776.52 Responsibilities of the judge advocate Subpart A—General, Preamble and general and supervisory judge advocates. Premises 776.53 Responsibilities of a subordinate judge advocate. Sec. 776.54 Responsibilities regarding nonlawyer 776.1 Purpose. assistants. 776.2 Applicability. 776.55 Professional independence of a judge 776.3 Policy. advocate. 776.4 Attorney-client relationships. 776.56 Unauthorized practice of law. 776.5 Judicial conduct. 776.6 Conflict. 776.57–776.65 [Reserved] 776.7 Reporting requirements. 776.66 Bar admission and disciplinary mat- 776.8 Professional Responsibility Commit- ters. tee. 776.67 Judicial and legal officials. 776.9 Rules Counsel. 776.68 Reporting professional misconduct. 776.10 Informal ethics advice. 776.69 Misconduct. 776.11 Outside part-time practice of law. 776.70 Jurisdiction. 776.12 Maintenance of files. 776.71–776.75 [Reserved] 776.13 Preamble. 776.14 Premises. Subpart C—Complaint Processing Procedures Subpart B—Rules 776.76 Policy. 776.20 Competence. 776.77 Related investigations and actions. 776.21 Establishment and scope of represen- 776.78 Informal complaints. tation. 776.79 The complaint. 776.22 Diligence. 776.80 Initial screening and Rules Counsel. 776.23 Communication. 776.81 Charges. 776.24 Fees. 776.82 Preliminary inquiry. 776.25 Confidentiality of information. 776.26 Conflict of interests: General rule. 776.83 Ethics investigation. 776.27 Conflict of interests: Prohibited 776.84 Action by JAG. transactions. 776.85 Finality. 776.28 Conflict of interests: Former client. 776.86 Report to bar. 776.29 Imputed disqualification: General 776.87–776.89 [Reserved] rule. 776.30 Successive government and private Subpart D—Outside Part-Time Law Practice employment. of Naval Service Attorneys 776.31 Former judge or arbitrator. 776.32 Department of the Navy as client. 776.90 Background. 776.33 Client under a disability. 776.91 Definition. 776.34 Safekeeping property. 776.92 Policy. 776.35 Declining or terminating representa- 776.93 Action. tion. 776.94 Revalidation. 776.36 Advisor. 776.95 Relations with non-DON civilian 776.37 Mediation. counsel.
509
VerDate 25
AUTHORITY: 10 U.S.C. 826, 827; Manual for Counsel of another armed force, or Courts-Martial, United States, 1984; Sec- both; and retary of the Navy Instruction 5430.27A, Re- (2) Who are not certified in accord- sponsibility of the Judge Advocate General for Supervision of Certain Legal Services; ance with article 27(b), UCMJ, 10 U.S.C. U.S. Navy Regulations, 1990. 827(b), or designated as a legal assist- ance attorney, but who practice under SOURCE: 59 FR 45214, Sept. 1, 1994, unless otherwise noted. the supervision of JAG. (3) Military trial and appellate judges Subpart A—General, Preamble who practice or perform legal services and Premises under the cognizance of JAG. (4) Reserve judge advocates of the § 776.1 Purpose. Navy or Marine Corps on active duty, In furtherance of the authority cita- extended active duty, active duty for tions [which, if not found in local li- training, inactive duty for training, or braries, are available from the Office of when performing duties subject to the the Judge Advocate General (Adminis- supervision of JAG. Subpart D of this trative Law Division), 200 Stovall part, however, does not apply to Re- Street, Alexandria, VA 22332–2400], serve judge advocates unless they serve which require the Judge Advocate Gen- on active duty for more than 30 con- eral (JAG) to supervise the perform- secutive days. ance of legal services under his cog- (5) DON civilian counsel practicing nizance throughout the Department of under the supervision of JAG. the Navy (DON), this part is promul- (6) Civilian counsel representing indi- gated— vidual members of the naval service in (a) To establish Rules of Professional any matter for which JAG is charged Conduct for DON civilian and military with supervising the provision of legal attorneys practicing under the super- services including, but not limited to, vision of JAG; courts-martial, administrative boards, (b) To promulgate procedures for re- and disability evaluation proceedings. ceiving, processing, and taking action Subpart D of this part, however, does on complaints of professional mis- not apply to such counsel. conduct made against attorneys prac- (b) Although subpart B of this part ticing under the supervision of JAG, or does not apply to nonlawyers, the rules certified by JAG under articles 26(b) or in that subpart do define the type of 27(b) of the Uniform Code of Military ethical conduct that the public and the Justice (UCMJ) (10 U.S.C. 826(b), military community have a right to ex- 827(b)); and pect not only of lawyers but also of (c) To prescribe limitations on, and their nonlawyer employees and associ- procedures for, processing requests to ates in all matters pertaining to pro- engage in the part-time outside prac- fessional conduct. Accordingly, subpart tice of law by DON judge advocates or B shall serve as models of ethical con- civilian attorneys under the super- duct for the following personnel when vision of JAG. involved with the delivery of legal § 776.2 Applicability. services under the purview of JAG— (1) Navy legalmen and Marine Corps (a) This part defines the professional legal administrative officers and legal ethical obligations of, and applies to: (1) Attorneys: service specialists; (i) Certified by JAG under the provi- (2) Limited duty officers (law); sions of article 27(b), UCMJ, 10 U.S.C. (3) Legal interns; and 827(b); (4) Civilian support personnel includ- (ii) Designated by JAG as legal as- ing paralegals, legal secretaries, legal sistance attorneys; technicians, secretaries, court-report- (iii) Who practice within DON and ers, and others holding similar posi- who are certified under article 27(b), tions. Attorneys who supervise nonlaw- UCMJ, 10 U.S.C. 827(b), or who are des- yer employees are responsible for their ignated as a legal assistance attorney ethical conduct to the extent provided by the Judge Advocate General/Chief for in § 776.54.
510
VerDate 25
§ 776.3 Policy. judge advocate or civilian attorney to (a) DON judge advocates and civilian that client. Specific guidance is set attorneys to whom this part applies forth in § 776.95. shall maintain the highest standards of § 776.5 Judicial conduct. professional ethical conduct. Loyalty and fidelity to the United States, to To the extent that it does not con- the law, to clients both institutional flict with statutes, subpart B of this and individual, and to the rules and part, or regulations of the sort men- principles of professional ethical con- tioned in § 776.3(b), the American Bar duct set forth in subpart B of this part Association’s Code of Judicial Conduct must come before private gain or per- applies to all military and appellate sonal interest. judges and to all judge advocates and (b) Subpart B and related procedures other attorneys performing judicial set forth herein concern matters solely functions under JAG supervision with- under the purview of JAG. Whether in the Department of the Navy. conduct or failure to act constitutes a § 776.6 Conflict. violation of the duties imposed by this part is a matter within the sole discre- To the extent that a conflict exists tion of JAG or officials authorized to between subpart B of this part and the act for JAG. The subpart B rules are rules of other jurisdictions that regu- not substitutes for, and do not take the late the professional conduct of attor- place of, other rules and standards gov- neys, subpart B of this part will govern erning DON personnel such as the Gov- the conduct of attorneys engaged in ernment rules of ethical conduct, the legal functions under JAG supervision. Code of Conduct, the Uniform Code of Military Justice, and the general pre- § 776.7 Reporting requirements. cepts of ethical conduct to which all of- Individuals subject to this part shall ficers of the Navy and Marine Corps are promptly report to the Rules Counsel expected to adhere. Similarly, action (see § 776.9) discipline by another juris- taken pursuant to this part is not sup- diction upon himself, herself, or an- planted or barred by, and does not sup- other individual subject to this part. plant or bar, the following action from being taken by authorized officials, § 776.8 Professional Responsibility even if the underlying misconduct is Committee. the same— (a) Composition. This standing com- (1) Punitive or disciplinary action mittee will consist of the Assistant under the UCMJ; or Judge Advocate General (AJAG) for (2) Administrative action under the Military Justice; the Principal Deputy Manual For Courts-Martial or U.S. Assistant Judge Advocate General Navy Regulations, 1990, or under other (PDAJAG) (Operations & Manage- applicable authority. ment); the Chief Judge, Navy-Marine Corps Trial Judiciary; and in cases in- § 776.4 Attorney-client relationships. volving Marine Corps judge advocates, (a) The executive agency to which as- the Deputy Director, Judge Advocate signed (DON in most cases) is the cli- Division, HQMC; and such other per- ent served by each DON civilian attor- sonnel as JAG from time-to-time may ney or judge advocate unless detailed appoint. A majority of the members to represent another client by com- constitutes a quorum. The Chairman of petent authority. Specific guidelines the Committee shall be PDAJAG (Op- are contained in § 776.32. erations & Management). The Chair- (b) DON judge advocates and civilian man may excuse members disqualified attorneys will not establish attorney- for cause, illness, or exigencies of mili- client relationships with any individ- tary service, and may request JAG to ual unless detailed, assigned, or other- appoint additional or alternative mem- wise authorized to do so by competent bers on a temporary or permanent authority. basis. (c) Employment of non-DON civilian (b) Purpose. (1) When requested by counsel by an individual client does JAG or by the Rules Counsel, the Com- not alter the responsibilities of a DON mittee will provide formal advisory
511
VerDate 25
opinions to JAG regarding application (1) Head, Military Affairs/Personnel of subpart B of this part to individual Law Branch, Administrative Law Divi- or hypothetical cases. sion: administrative boards and related (2) On its own motion, the Committee matters; may also issue formal advisory opin- (2) Deputy Director, Criminal Law ions on ethical issues of importance to Division: military justice matters; the DON legal community. (3) Deputy Director, Legal Assistance (3) Upon written request, the Com- Division: legal assistance matters; and mittee will also provide formal advi- (4) Head, Standards of Conduct/Gov- sory opinions to individuals subject to ernment Ethics Branch, Administra- this part about the propriety of pro- tive Law Division: all others. posed courses of action under subpart B (b) Informal advice. Informal ethics of this part. If such requests are predi- advice will not be provided by OJAG cated upon full disclosure of all rel- advisors concerning matters currently evant facts, and if the Committee ad- in litigation. vises that the proposed course of con- (c) Written advice. A request for infor- duct is not violative of subpart B of mal advice does not relieve the reques- this part, then no adverse action under tor of the obligation to comply with this part may be taken against an indi- subpart B of this part. Although DON vidual who acts consistent with the judge advocates and civilian attorneys Committee’s advice. are encouraged to seek advice when in (4) The Committee Chairman will for- doubt as to their responsibilities, they ward copies of all opinions issued by remain personally responsible for their the Committee to the Rules Counsel. professional conduct. If, however, a subordinate judge advocate acts in ac- § 776.9 Rules Counsel. cordance with a supervisory judge ad- vocate’s written and reasonable resolu- Appointed by JAG to act as a special tion of an arguable question, then no assistant for the administration of sub- adverse action under this part may be part B of this part, the Rules Counsel taken against the subordinate judge derives authority from JAG and, with advocate. JAG is not bound by unwrit- respect to administrative matters ten advice or by advice provided by under this part, has ‘‘by direction’’ au- nonsupervisors. thority. The Rules Counsel shall cause opinions issued by the Professional Re- § 776.11 Outside part-time practice of sponsibility Committee of general in- law. terest to the DON legal community to A DON attorney’s primary profes- be published in summarized, non-per- sional responsibility is to the executive sonal form in suitable publications. agency to which assigned, and he or Unless another officer is appointed by she is expected to devote the required JAG to act in individual cases, the fol- amount of effort and time to satisfac- lowing officers shall act as Rules Coun- torily accomplish assigned duties. The sel— outside practice of law, therefore, must (a) In cases involving Marine Corps be carefully monitored. Attorneys to judge advocates, Director, Judge Advo- whom this section applies who wish to cate Division; and engage in the part-time, outside prac- (b) In all other cases, Assistant Judge tice of law must first obtain permission Advocate General (Civil Law). from JAG. Details are contained in Subpart D of this part. § 776.10 Informal ethics advice. (a) Advisors. Judge advocates may § 776.12 Maintenance of files. seek informal ethics advice either from Ethics complaint records and out- the OJAG officers named below or from side, part-time law practice request their supervisory judge advocates in files shall be maintained by the Admin- the field. Within the Office of the JAG, istrative Law Division, Office of the the following officials are designated Judge Advocate General. to respond to informal, oral inquiries (a) Files shall be labeled with the concerning this part in the areas of name of the individual against whom practice indicated— complaints are made, or who request
512
VerDate 25
permission to engage in the part-time (1) Judge advocates must obey the outside practice of law, and will con- law and military regulations, and tain the request, complaint, reports of counsel clients to do so. investigation, related correspondence, (2) Ethical rules must be followed. and allied papers. (3) Ethical rules should be consistent (b) Requests for access to such with law. If law and ethics conflict, the records should be referred to DAJAG law prevails unless an ethical rule is (Administrative Law Division), Office constitutionally based. of the Judge Advocate General, 200 Sto- (4) A judge advocate must protect the vall Street, Alexandria, Virginia 22332– legal rights and interests of clients, or- 2400. ganizational and individual. (c) Local command files regarding (5) The military criminal justice sys- complaints will not be maintained. tem is a truth-finding process consist- Commanding officers and other super- ent with constitutional law. visory personnel may, however, main- (6) A judge advocate must be honest tain their own personal files but must and truthful in all dealings. not share their contents with others. (7) A judge advocate shall not derive personal gain, other than from the U.S. § 776.13 Preamble. Government, from the performance of (a) Rules of Professional Conduct. (1) A official duties. judge advocate in the naval service is a (8) A judge advocate shall maintain representative of clients, an officer of the integrity of the legal and military the legal system, a commissioned offi- professions. cer, and a public citizen who has a spe- (b) [Reserved] cial responsibility for the quality of justice and legal services provided to the Department of the Navy and to in- Subpart B—Rules dividual clients. The Rules of Profes- § 776.20 Competence. sional Conduct set out in subpart B of this part govern the ethical conduct of (a) Competence. A judge advocate naval judge advocates practicing under shall provide competent, diligent, and the Uniform Code of Military Justice, prompt representation to a client. the Manual for Courts-Martial, 10 Competent representation requires the U.S.C. 1044 (Legal Assistance), other legal knowledge, skill, thoroughness, laws of the United States, and regula- and expeditious preparation reasonably tions of the Department of the Navy. necessary for representation. Initial (2) The rules in subpart B of this part determinations as to competence of a are specifically addressed to the con- judge advocate for a particular assign- duct of judge advocates but apply to all ment shall be made by a supervising other lawyers who practice under the judge advocate before case or issue as- supervision of the Judge Advocate Gen- signments; however, assigned judge ad- eral of the Navy. (Use of the term vocates may consult with supervisors ‘‘judge advocate’’ in subpart B applies concerning competence in a particular to all lawyers unless otherwise indi- case. cated.) (b) [Reserved] (b) [Reserved] § 776.21 Establishment and scope of § 776.14 Premises. representation. (a) The rules in subpart B of this part (a) Establishment and scope of represen- are based on the premises that follow. tation. (1) Formation of attorney-client The interpretation of subpart B of this relationships by judge advocates with, part should flow from their common and representation of, clients is per- meaning and the comments. To the ex- missible only when the judge advocate tent that any ambiguity or conflict ex- is authorized to do so by competent au- ists, subpart B of this part should be thority. interpreted consistent with this hier- (2) The subject matter scope of a archy of premises. judge advocate’s representation will be
513
VerDate 25
consistent with the terms of the as- ‘‘lawyer’’ refers to all other lawyers signment to perform specific represen- subject to this subpart B. tational or advisory duties. A judge ad- (a) Fees. (1) A judge advocate shall vocate shall inform clients at the earli- not accept any salary, fee, compensa- est opportunity of any limitations of tion, or other payments or benefits, di- representation and professional respon- rectly or indirectly, other than govern- sibilities of the judge advocate towards ment compensation, for services pro- the client. vided in the course of the judge advo- (3) A judge advocate shall follow the cate’s government duties or employ- client’s well-informed and lawful deci- ment. sions concerning case objectives, (2) A judge advocate shall not accept choice of counsel, forum, pleas, wheth- any salary or other payments as com- er to testify, and settlements. pensation for legal services rendered, (4) A judge advocate’s representation by that judge advocate in a private ca- of a client does not constitute an en- pacity, to a client who is eligible for dorsement of the client’s political, eco- assistance under the Department of the nomic, social, or moral views or activi- Navy Legal Assistance Program, unless ties. so authorized by the Judge Advocate (5) A judge advocate shall not counsel General. This paragraph (a)(2) does not or assist a client to engage in conduct apply to Reserve judge advocates not that the judge advocate knows is serving on extended active duty. criminal or fraudulent, but a judge ad- (3) A Reserve judge advocate, wheth- vocate may discuss the legal and moral er or not serving on extended active consequences of any proposed course of duty, who has initially represented or conduct with a client, and may counsel interviewed a client or prospective cli- or assist a client in making a good ent concerning a matter as part of the faith effort to determine the validity, judge advocate’s official Navy or Ma- scope, meaning, or application of the rine Corps duties, shall not accept any law. salary or other payments as compensa- (b) [Reserved] tion for services rendered to that client § 776.22 Diligence. in a private capacity concerning the same general matter for which the cli- (a) A judge advocate shall Diligence. ent was seen in an official capacity, un- act with reasonable diligence and less authorized by the Judge Advocate promptness in representing a client, General to do so. and in every case shall consult with a (4) A judge advocate shall not accept client as soon as practicable and as any payments or benefits, actual or often as necessary upon being assigned constructive, directly or indirectly, for to the case or issue. (b) [Reserved] making a referral of a client. (5) Lawyers not employed by the Fed- § 776.23 Communication. eral Government may charge fees. Fees (a) Communication. (1) A judge advo- shall be reasonable. Factors considered cate shall keep a client reasonably in- in determining the reasonableness of a formed about the status of a matter fee include the following: and promptly comply with reasonable (i) The time and labor required, the requests for information. novelty and difficulty of the questions (2) A judge advocate shall explain a involved, and the skill requisite to per- matter to the extent reasonably nec- form the legal service properly; essary to permit the client to make in- (ii) The likelihood, if apparent to the formed decisions regarding the rep- client, that the acceptance of the par- resentation. ticular employment will preclude other (b) [Reserved] employment by the lawyer; (iii) The fee customarily charged in § 776.24 Fees. the locality for similar legal services; In this section, the term ‘‘judge advo- (iv) The amount involved and the re- cate’’ refers only to judge advocates sults obtained; and other attorneys employed by the (v) The time limitations imposed by Department of the Navy. The term the client or by the circumstances;
514
VerDate 25
(vi) The nature and length of the pro- § 776.25 Confidentiality of information. fessional relationship with the client; (a) Confidentiality of information. (1) A (vii) The experience, reputation, and judge advocate shall not reveal infor- ability of the lawyer or lawyers per- mation relating to representation of a forming the services; and client unless the client consents after (viii) Whether the fee is fixed or con- consultation, except for disclosures tingent. that are impliedly authorized in order (6) When the lawyer has not regularly to carry out the representation, and represented the client, the basis or rate except as stated in paragraphs (a)(2) of the fee shall be communicated to the and (a)(3) of this section. client, preferably in writing, before or (2) A judge advocate shall reveal such within a reasonable time after com- information to the extent the judge ad- mencing in representation. vocate reasonably believes necessary (7) A fee may be contingent on the to prevent the client from committing outcome of the matter for which the a criminal act that the judge advocate service is rendered, except in a matter believes is likely to result in imminent in which a contingent fee is prohibited death or substantial bodily harm, or by paragraph (a)(8) of this section or significant impairment of national se- other law. A contingent fee agreement curity or the readiness or capability of shall be in writing and shall state the a military unit, vessel, aircraft, or method by which the fee is to be deter- weapon system. mined, including the percentage or per- (3) A judge advocate may reveal such centages that shall accrue to the law- information to the extent the judge ad- yer in the event of settlement, trial or vocate reasonably believes necessary appeal, litigation and other expenses to to establish a claim or defense on be- be deducted from the recovery, and half of the judge advocate in a con- whether such expenses are to be de- troversy between the judge advocate ducted before or after the contingent and the client, to establish a defense to fee is calculated. Upon conclusion of a a criminal charge or civil claim contingent fee matter, the lawyer shall against the judge advocate based upon provide the client with a written state- conduct in which the client was in- ment stating the outcome of the mat- volved, or to respond to allegations in ter and, if there is a recovery, showing any proceeding concerning the judge the remittance to the client and the advocate’s representation of the client. method of its determination. (b) [Reserved] (8) A lawyer shall not enter into an § 776.26 Conflict of interests: General arrangement for, charge, or collect: rule. (i) Any fee in a domestic relations (a) matter, the payment or amount of Conflict of Interests: General rule. (1) A judge advocate shall not represent which is contingent upon the securing a client if the representation of that of a divorce or upon the amount of ali- client will be directly adverse to an- mony or support, or property settle- other client, unless: ment in lieu thereof, or (i) The judge advocate reasonably be- (ii) A contingent fee for representing lieves the representation will not ad- an accused in a criminal case. versely affect the relationship with the (9) A division of fee between lawyers other client; and who are not in the same firm may be (ii) Each client consents after con- made only if: sultation. (i) The division is in proportion to (2) A judge advocate shall not rep- the services performed by each lawyer resent a client if the representation of or, by written agreement with the cli- that client may be materially limited ent, each lawyer assumes joint respon- by the judge advocate’s responsibilities sibility for the representation; to another client or to a third person, (ii) The client is advised of and does or by the judge advocate’s own inter- not object to the participation of all ests, unless: the lawyers involved; and (i) The judge advocate reasonably be- (iii) The total fee is reasonable. lieves the representation will not be (b) [Reserved] adversely affected; and,
515
VerDate 25
(ii) The client consents after con- judge advocates or other government sultation. When representation of mul- attorneys in their private capacities; tiple clients in a single matter is un- (vii) Make or negotiate an agreement dertaken, the consultation shall in- giving the judge advocate literary or clude explanation of the implications media rights for a portrayal or account of the common representation and the based in substantial part on informa- advantages and risks involved. tion relating to representation of a cli- (b) [Reserved] ent; or, (viii) Represent a client in a matter § 776.27 Conflict of interests: Prohib- directly adverse to a person who the ited transactions. judge advocate knows is represented by (a) Conflict of interests: Prohibited another lawyer who is related as par- transactions. (1) Judge advocates shall ent, child, sibling or spouse to the strictly adhere to current Department judge advocate, except upon consent by of the Navy Standards of Conduct Reg- the client after consultation regarding ulations and shall not: the relationship. (i) Knowingly enter into any business (2) [Reserved] transactions on behalf of, or adverse (b) [Reserved] to, a client’s interest which directly or indirectly relate to or result from the § 776.28 Conflict of interests: Former attorney-client relationship, or other- client. wise profit, directly or indirectly, (a) Conflict of interests: Former client. through knowledge acquired during the (1) A judge advocate who has rep- course of the judge advocate’s official resented a client in a matter shall not duties; thereafter: (ii) Accept compensation or gifts in (i) Represent another person in the any form from a client or other person same or a substantially related matter or entity, other than the U.S. Govern- in which the person’s interests are ma- ment, for the performance of official terially adverse to the interests of the duties; former client, unless the former client (iii) Provide any financial assistance consents after consultation; or, to a client or otherwise serve in a fi- (ii) Use information relating to the nancial or proprietorial fiduciary or representation to the disadvantage of bailment relationship, unless otherwise the former client or to the judge advo- specifically authorized by competent cate’s own advantage, except as § 776.25 authority; would permit with respect to a client (iv) Negotiate any settlement on be- or when the information has become half of multiple clients in a single mat- generally known. ter unless each client provides his or (2) [Reserved] her fully informed consent; (b) [Reserved] (v) Represent a client whose interests are materially adverse to the interests § 776.29 Imputed disqualification: Gen- of a former client, unless the former eral rule. client consents, or use information Judge advocates working in the same from the former representation to the military law office are not automati- disadvantage of that former client, ex- cally disqualified from representing a cept as permitted or required under client because any of them practicing § 776.26 or when the information has be- alone would be prohibited from doing come otherwise generally known; so by § 776.26, § 776.27, 776.28, or § 776.37. (vi) make any referrals of legal or other business to any non-govern- § 776.30 Successive government and mental lawyer or enterprise with whom private employment. the judge advocate has any present or (a) Successive government and private expected direct or indirect personal in- employment. (1) Except as the law or terest; any referrals must be made regulations may otherwise expressly strictly without regard to personal in- permit, a former judge advocate shall terests of the judge advocate, and spe- not represent a private client in con- cial care shall be taken not to give nection with a matter in which the preferential treatment to Reserve judge advocate participated personally
516
VerDate 25
and substantially as a public officer or other determination, contract, claim, employee, unless the appropriate gov- controversy, investigation, charge, ac- ernment agency consents after con- cusation, arrest or other particular sultation. If a former judge advocate in matter involving a specific party or a firm with which that judge advocate parties; and, is associated knows that the firm or (ii) Any other matter covered by the anyone associated with the firm is un- conflict of interest rules of the appro- dertaking or continuing representation priate government agency. in such a matter: (5) As used in this section, the term (i) The disqualified former judge ad- ‘‘confidential governmental informa- vocate must ensure that he or she is tion’’ means information which has screened from any participation in the been obtained under governmental au- matter and is apportioned no part of thority and which, at the time this sec- the fee or any other benefit therefrom; tion is applied, the government is pro- and, hibited by law or regulations from dis- (ii) Must provide written notice closing to the public or has a legal promptly to the appropriate govern- privilege not to disclose, and which is ment agency to enable it to ascertain not otherwise available to the public. compliance with the provisions of this (b) [Reserved] section. (2) Except as the law or regulations § 776.31 Former judge or arbitrator. may otherwise expressly permit, a (a) Former judge or arbitrator. (1) Ex- former judge advocate who has infor- cept as stated in paragraph (a)(3) of mation known to be confidential gov- this section, a judge advocate shall not ernment information about a person represent anyone in connection with a which was acquired when the former matter in which the judge advocate judge advocate was a public officer participated personally and substan- may not represent a private client tially as a judge or other adjudicative whose interests are adverse to that per- officer, arbitrator, or law clerk to such son in a matter in which the informa- a person, unless all parties to the pro- tion could be used to the material dis- ceeding consent after disclosure. advantage of that person. The former (2) A judge advocate shall not nego- judge advocate may continue associa- tiate for employment with any person tion with the firm only if the disquali- who is involved as a party or as attor- fied judge advocate is screened from ney for a party in a matter in which any participation in the matter and is the judge advocate is participating per- apportioned no part of the fee or any sonally and substantially as a judge or other benefit therefrom. other adjudicative officer. A judge ad- (3) Except as the law or regulations vocate serving as law clerk to a judge, may otherwise expressly permit, a other adjudicative officer, or arbitrator judge advocate shall not: may negotiate for employment with a (i) Participate in a matter in which party or attorney involved in a matter the judge advocate participated person- in which the clerk is participating per- ally and substantially while in private sonally and substantially, but only practice or nongovernmental employ- after the judge advocate has notified ment, unless under applicable law no the judge, other adjudicative officer, or one is, or by lawful delegation may be, arbitrator. authorized to act in the judge advo- (3) An arbitrator selected as a par- cate’s stead in the matter; or, tisan of a party in a multi-member ar- (ii) Negotiate for private employ- bitration panel is not prohibited from ment with any person who is involved subsequently representing that party. as a party or as attorney for a party in (b) [Reserved] a matter in which the judge advocate is participating personally and substan- § 776.32 Department of the Navy as cli- tially. ent. (4) As used in this section, the term (a) Department of the Navy as client. ‘‘matter’’ includes: (1) Except when representing an indi- (i) Any judicial or other proceeding, vidual client pursuant to paragraph application, request for a ruling or (a)(6) of this section, a judge advocate
517
VerDate 25
for the naval service represents the De- (i) Advising the head of the organiza- partment of the Navy (or the Executive tion that his or her personal legal in- agency to which assigned) acting terests are at risk and that he or she through its authorized officials. These should consult counsel as there may officials include the heads of organiza- exist a conflict of interests for the tional elements within the naval serv- judge advocate, and the judge advo- ice, such as the commanders of fleets, cate’s responsibility is to the organiza- divisions, ships and other heads of ac- tion; tivities. When a judge advocate for the (ii) Asking for reconsideration of the naval service is assigned to such an or- matter by the acting official; ganizational element and designated to (iii) Advising that a separate legal provide legal services to the head of opinion on the matter be sought for the organization, a lawyer-client rela- presentation to appropriate authority tionship exists between the judge advo- in the naval service; or, cate and the Department of the Navy (iv) Referring the matter to, or seek- as represented by the head of the orga- ing guidance from, higher authority in nization as to matters within the scope the technical chain-of-command in- of the official business of the organiza- cluding, if warranted by the serious- tion. The head of the organization may ness of the matter, referral to the staff not invoke the lawyer-client privilege judge advocate assigned to the staff of or the rule of confidentiality for the the acting official’s next superior in head of the organization’s own benefit the technical chain-of-command. but may invoke either for the benefit (3) If, despite the judge advocate’s ef- of the Department of the Navy. In in- forts pursuant to paragraph (a)(2) of voking either the lawyer-client privi- this section, the highest authority that lege or lawyer-client confidentiality on can act concerning the matter insists behalf of the Department of the Navy, upon action or refuses to act, in clear the head of the organization is subject violation of law, the judge advocate to being overruled by higher authority. may terminate representation with re- (2) If a judge advocate knows that an spect to the matter in question. In no officer, employee, or other member as- event shall the lawyer participate or sociated with the organizational client assist in the illegal activity. is engaged in action, intends to act or (4) In dealing with the officers, em- refuses to act in a matter related to ployees, or members of the naval serv- the representation that is either ad- ice a judge advocate shall explain the verse to the legal interests or obliga- identity of the client when it is appar- tions of the Department of the Navy or ent that the naval service’s interests a violation of law which reasonably are adverse to those of the officer’s, might be imputed to the Department, employee’s, or member’s. the judge advocate shall proceed as is (5) A judge advocate representing the reasonably necessary in the best inter- naval service may also represent any of est of the naval service. In determining its officers, employees, or members, how to proceed, the judge advocate subject to the provisions of § 776.26 and shall give due consideration to the seri- other applicable authority. If the De- ousness of the violation and its con- partment of the Navy’s consent to dual sequences, the scope and nature of the representation is required by § 776.26, judge advocate’s representation, the re- the consent shall be given by an appro- sponsibility in the naval service and priate official of the Department of the the apparent motivation of the person Navy other than the individual who is involved, the policies of the naval serv- to be represented. ice concerning such matters, and any (6) A judge advocate who has been other relevant considerations. Any duly assigned to represent an individ- measures taken shall be designed to ual who is subject to disciplinary ac- minimize prejudice to the interests of tion or administrative proceedings, or the naval service and the risk of re- to provide legal assistance to an indi- vealing information relating to the vidual, has, for those purposes, an at- representation to persons outside the torney-client relationship with that in- service. Such measures shall include dividual. among others: (b) [Reserved]
518
VerDate 25
§ 776.33 Client under a disability. (ii) The client has used the judge ad- vocate’s services to perpetrate a crime (a) Client under a disability. (1) When a or fraud; client’s ability to make adequately (iii) The client insists upon pursuing considered decisions in connection an objective that the judge advocate with the representation is impaired, considers repugnant or imprudent; or, whether because of minority, mental (iv) Other good cause for withdrawal disability, or for some other reason, exists. the judge advocate shall, as far as rea- (3) When ordered to do so by a tribu- sonably possible, maintain a normal nal or other competent authority, a attorney-client relationship with the judge advocate shall continue represen- client. tation notwithstanding good cause for (2) A judge advocate may seek the ap- terminating the representation. pointment of a guardian or take other (4) Upon termination of representa- protective action with respect to a cli- tion, a judge advocate shall take steps ent only when the judge advocate rea- to the extent reasonably practicable to sonably believes that the client cannot protect a client’s interests, such as giv- adequately act in the client’s own in- ing reasonable notice to the client, al- terest. lowing time for assignment or employ- (b) [Reserved] ment of other counsel and surrendering papers and property to which the client § 776.34 Safekeeping property. is entitled and, if a civilian lawyer is Judge advocates shall not normally involved, refunding any advance pay- hold or safeguard property of a client ment of fee that has not been earned. or third persons in connection with The judge advocate may retain papers representational duties under relating to the client to the extent per- § 776.27(a)(1)(iii). mitted by law. (b) [Reserved] § 776.35 Declining or terminating rep- resentation. § 776.36 Advisor. In representing a client, a judge ad- (a) Declining or terminating representa- vocate shall exercise independent pro- tion. (1) Except as stated in paragraph fessional judgment and render candid (a)(3) of this section, a judge advocate advice. In rendering advice, a judge ad- shall not represent a client or, when vocate should refer not only to law but representation has commenced, shall to other considerations such as moral, seek to withdraw from the representa- economic, social, and political factors tion of a client, if: that may be relevant to the client’s (i) The representation will result in situation. violation of this subpart B or other law or regulation; § 776.37 Mediation. (ii) The judge advocate’s physical or (a) Mediation. (1) A judge advocate mental condition materially impairs may act as a mediator between individ- his or her ability to represent the cli- uals or clients if: ent; or (i) The judge advocate consults with (iii) The judge advocate is dismissed each individual concerning the impli- by the client. cations of the mediation, including the (2) Except as stated in paragraph advantages and risks involved, and the (a)(3) of this section, a judge advocate effect on the attorney-client confiden- may seek to withdraw from represent- tiality, and obtains each individual’s ing a client if withdrawal can be ac- consent to the mediation; complished without material adverse (ii) The judge advocate reasonably effect on the interests of the client, or believes that the matter can be re- if: solved on terms compatible with each (i) The client persists in a course of individual’s best interests, that each action involving the judge advocate’s individual will be able to make ade- services that the judge advocate rea- quately informed decisions in the mat- sonably believes is criminal or fraudu- ter, and that there is little risk of ma- lent; terial prejudice to the interests of any
519
VerDate 25
of the individuals if the contemplated in an administrative proceeding that resolution is unsuccessful; and, could result in incarceration, discharge (iii) The judge advocate reasonably from the naval service, or other ad- believes that the mediation can be un- verse personnel action, may neverthe- dertaken impartially and without im- less defend the client at the proceeding proper effect on other responsibilities to ensure that every element of the the judge advocate has to any of the in- case is established. dividuals. (2) While acting as a mediator, the § 776.40 Expediting litigation. judge advocate shall consult with each A judge advocate shall make reason- individual concerning the decisions to able efforts to expedite litigation or be made and the considerations rel- other proceedings consistent with the evant in making them, so that each in- interests of the client and the judge ad- dividual can make adequately informed vocate’s responsibilities to tribunals. decisions. (3) A judge advocate shall withdraw § 776.41 Candor and obligations to- as a mediator if any of the individuals ward the tribunal. so requests, or if any of the conditions (a) Candor and obligations toward the stated in paragraph (a) of this section tribunal. (1) A judge advocate shall not is no longer satisfied. Upon with- knowingly: drawal, the judge advocate shall not (i) Make a false statement of mate- continue to mediate among any of the rial fact or law to a tribunal; individuals in the matter that was the (ii) Fail to disclose a material fact to subject of the mediation unless each a tribunal when disclosure is necessary individual consents. to avoid assisting a criminal or fraudu- (b) [Reserved] lent act by the client; (iii) Fail to disclose to the tribunal § 776.38 Evaluation for use by third legal authority in the controlling juris- persons. diction known to the judge advocate to (a) Evaluation for use by third persons. be directly adverse to the position of (1) A judge advocate may undertake an the client and not disclosed by oppos- evaluation of a matter affecting a cli- ing counsel; ent for the use of someone other than (iv) Offer evidence that the judge ad- the client if: vocate knows to be false (if a judge ad- (i) The judge advocate reasonably be- vocate has offered material evidence lieves that making the evaluation is and comes to know of its falsity, the compatible with other aspects of the judge advocate shall take reasonable judge advocate’s relationship with the remedial measures); or client; and (v) Disobey an order imposed by a tri- (ii) The client consents after con- bunal unless done openly before the tri- sultation. bunal in a good-faith assertion that no (2) Except as disclosure is required in valid order should exist. connection with a report of an evalua- (2) The duties stated in paragraph (a) tion, information relating to the eval- of this section continue to the conclu- uation is otherwise protected by sion of the proceedings, and apply even § 776.25. if compliance requires disclosure of in- (b) [Reserved] formation otherwise protected by § 776.25. § 776.39 Meritorious claims and con- (3) A judge advocate may refuse to tentions. offer evidence that the judge advocate A judge advocate shall not bring or reasonably believes is false. defend a proceeding, or assert or con- (4) In an ex parte proceeding, a judge trovert an issue therein, unless there is advocate shall inform the tribunal of a basis for doing so that is not frivo- all material facts known to the judge lous, or which includes a good-faith ar- advocate which are necessary to enable gument for an extension, modification, the tribunal to make an informed deci- or reversal of existing law. A judge ad- sion, whether or not the facts are ad- vocate representing an accused in a verse. criminal proceeding or the respondent (b) [Reserved]
520
VerDate 25
§ 776.42 Fairness to opposing party (b) [Reserved] and counsel. (a) Fairness to opposing party and § 776.44 Extra-tribunal statements. counsel. (1) A judge advocate shall not: (a) Extra-tribunal statements. (1) A (i) Unlawfully obstruct another par- judge advocate shall not make an ty’s access to evidence or unlawfully extrajudicial statement about any per- alter, destroy, or conceal a document son or case pending investigation or or other material having potential evi- adverse administrative or disciplinary dentiary value; a judge advocate shall proceedings that a reasonable person not counsel or assist another person to would expect to be disseminated by do any such act; means of public communication if the (ii) Falsify evidence, counsel or assist judge advocate knows or reasonably a witness to testify falsely, or offer an should know that it will have a sub- inducement to a witness that is prohib- stantial likelihood of materially ited by law; prejudicing an adjudicative proceeding (iii) In pretrial procedure, make a or an official review process thereof. frivolous discovery request or fail to (2) A statement referred to in para- make reasonably diligent effort to graph (a) of this section ordinarily is comply with a legally proper discovery likely to have such an effect when it request by an opposing party; refers to a civil matter triable to a (iv) In trial, allude to any matter jury, a criminal matter or any other that the judge advocate does not rea- proceeding that could result in incar- sonably believe is relevant or that will ceration, discharge from the naval not be supported by admissible evi- service, or other adverse personnel ac- dence, assert personal knowledge of tion, and the statement relates to: facts in issue except when testifying as (i) The character, credibility, reputa- a witness, or state a personal opinion tion, or criminal record of a party, sus- as to the justness of a cause, the credi- pect in a criminal investigation, or bility of a witness, the culpability of a witness, or the identity of a witness, or civil litigant, or the guilt or innocence the expected testimony of a party or of an accused; or witness; (v) Request a person other than a cli- (ii) The possibility of a plea of guilty ent to refrain from voluntarily giving to the offense or the existence or con- relevant information to another party tents of any confession, admission, or unless: statement given by an accused or sus- (A) The person is a relative, an em- pect or that person’s refusal or failure ployee, or other agent of a client; and to make a statement; (B) The judge advocate reasonably believes that the person’s interests will (iii) The performance or results of not be adversely affected by refraining any examination or test or the refusal from giving such information. or failure of a person to submit to an (2) [Reserved] examination or test, or the identity or (b) [Reserved] nature of physical evidence expected to be presented; § 776.43 Impartiality and decorum of (iv) Any opinion as to the guilt or in- the tribunal. nocence of an accused or suspect in a (a) Impartiality and decorum the tribu- criminal case or other proceeding that nal. (1) A judge advocate shall not: could result in incarceration, discharge (i) Seek to influence a judge, court from the naval service, or other ad- member, member of a tribunal, pro- verse personnel action; spective court member or member of a (v) Information the judge advocate tribunal, or other official by means knows or reasonably should know is prohibited by law or regulation; likely to be inadmissible as evidence (ii) Communicate ex parte with such before a tribunal and would, if dis- a person except as permitted by law or closed, create a substantial risk of ma- regulation; or terially prejudicing an impartial pro- (iii) Engage in conduct intended to ceeding; disrupt a tribunal. (vi) The fact that an accused has (2) [Reserved] been charged with a crime, unless there
521
VerDate 25
is included therein a statement ex- § 776.45 Judge advocate as witness. plaining that the charge is merely an (a) Judge advocate as witness. (1) A accusation and that the accused is pre- judge advocate shall not act as advo- sumed innocent until and unless prov- cate at a trial in which the judge advo- en guilty; or cate is likely to be a necessary witness (vii) The credibility, reputation, mo- except when: tives, or character of civilian or mili- (i) The testimony relates to an tary officials of the Department of De- uncontested issue; fense. (ii) The testimony relates to the na- (3) Notwithstanding paragraphs (a)(1) ture and quality of legal services ren- and (a)(2) (i) through (v) of this section, dered in the case; or a judge advocate involved in the inves- (iii) Disqualification of the judge ad- tigation or litigation of a matter may vocate would work substantial hard- state without elaboration: ship on the client. (i) The general nature of the claim or (2) A judge advocate may act as advo- defense; cate in a trial in which another judge (ii) The information contained in a advocate or lawyer in the judge advo- public record; cate’s office is likely to be called as a (iii) That an investigation of the witness, unless precluded from doing so matter is in progress, including the by § 776.26 or § 776.28. general scope of the investigation, the (b) [Reserved] offense or claim or defense involved and, except when prohibited by law, § 776.46 Special responsibilities of a the identity of the persons involved; trial counsel. (iv) The scheduling or result of any (a) Special responsibilities of a trial step in litigation; counsel. (1) A trial counsel shall: (v) A request for assistance in obtain- (i) Recommend to the convening au- ing evidence and information necessary thority that any charge or specifica- thereto; tion not warranted by the evidence be (vi) A warning of danger concerning withdrawn; the behavior of the person involved, (ii) Make reasonable efforts to assure when there is reason to believe that that the accused has been advised of there exists the likelihood of substan- the right to, and the procedure for ob- tial harm to an individual or to the taining, counsel and has been given public interest; and reasonable opportunity to obtain coun- (vii) In a criminal case: sel; (A) The identity, duty station, occu- (iii) Not seek to obtain from an un- pation, and family status of the ac- represented accused a waiver of impor- cused; tant pretrial rights; (B) If the accused has not been appre- (iv) Make timely disclosure to the de- hended, information necessary to aid in fense of all evidence or information apprehension of that person; known to the judge advocate that (C) The fact, time, and place of ap- tends to negate the guilt of the accused prehension; and or mitigates the offense, and, in con- (D) The identity of investigating and nection with sentencing, disclose to apprehending officers or agencies and the defense all unprivileged mitigating the length of the investigation. information known to the judge advo- (4) The protection and release of in- cate, except when the judge advocate is formation in matters pertaining to the relieved of this responsibility by a pro- Department of the Navy is governed by tective order or regulation; and such statutes as the Freedom of Infor- (v) Exercise reasonable care to pre- mation Act and the Privacy Act, in ad- vent investigators, law enforcement dition to those governing protection of personnel, employees, or other persons national defense information. In addi- assisting or associated with the judge tion, other laws and regulations may advocate in a criminal case from mak- further restrict the information that ing an extrajudicial statement that the can be released or the source from trial counsel would be prohibited from which it is to be released. making under § 776.44. (b) [Reserved] (2) [Reserved]
522
VerDate 25
(b) [Reserved] evidence that violate the legal rights of such a person. § 776.47 Advocate in nonadjudicative proceedings. § 776.52 Responsibilities of the Judge A judge advocate representing a cli- Advocate General and supervisory ent before a legislative or administra- judge advocates. tive tribunal in a nonadjudicative pro- (a) Responsibilities of the Judge Advo- ceeding shall disclose that the appear- cate General and supervisory judge advo- ance is in a representative capacity cates. (1) The Judge Advocate General and shall conform to the provisions of and supervisory judge advocates shall § 776.41, § 776.42, and § 776.43. make reasonable efforts to ensure that all judge advocates conform to this § 776.48 Truthfulness in statements to subpart. others. (2) A judge advocate having direct su- (a) Truthfulness in statements to others. pervisory authority over another judge In the course of representing a client a advocate shall make reasonable efforts judge advocate shall not knowingly: to ensure that the other judge advocate (1) Make a false statement of mate- conforms to this subpart. rial fact or law to a third person; or (3) A supervisory judge advocate (2) Fail to disclose a material fact to shall be responsible for another subor- a third person when disclosure is nec- dinate judge advocate’s violation of essary to avoid assisting a criminal or this subpart if: fraudulent act by a client, unless dis- (i) The supervisory judge advocate closure is prohibited by § 776.25. orders or, with knowledge of the spe- (b) [Reserved] cific conduct, ratifies the conduct in- § 776.49 Communication with person volved; or represented by counsel. (ii) The supervisory judge advocate In representing a client, a judge ad- has direct supervisory authority over vocate shall not communicate about the other judge advocate and knows of the subject of the representation with the conduct at a time when its con- a party the judge advocate knows to be sequences can be avoided or mitigated represented by another judge advocate but fails to take reasonable remedial in the matter, unless the judge advo- action. cate has the consent of the other judge (4) A supervisory judge advocate is advocate or is authorized by law to do responsible for ensuring that the subor- so. dinate judge advocate is properly trained and is competent to perform § 776.50 Dealing with an unrepre- the duties to which the subordinate sented person. judge advocate is assigned. When dealing on behalf of a client (b) [Reserved] with a person who is not represented by counsel, a judge advocate shall not § 776.53 Responsibilities of a subordi- nate judge advocate. state or imply that the judge advocate is disinterested. When the judge advo- (a) Responsibilities of a subordinate cate knows or reasonably should know judge advocate. (1) A judge advocate is that the unrepresented person mis- bound by this subpart notwithstanding understands the judge advocate’s role that the judge advocate acted at the di- in the matter, the judge advocate shall rection of another person. make reasonable efforts to correct the (2) In recognition of a judge advo- misunderstanding. cate’s unique dual role as a commis- sioned officer and lawyer, subordinate § 776.51 Respect for rights of third per- judge advocates shall obey lawful di- sons. rectives and regulations of supervisory In representing a client, a judge ad- judge advocates when not inconsistent vocate shall not use means that have with this subpart or the duty of a judge no substantial purpose other than to advocate to exercise independent pro- embarrass, delay, or burden a third fessional judgment as to the best inter- person, or use methods of obtaining est of an individual client.
523
VerDate 25
(3) A subordinate judge advocate does (2) The exercise of professional judg- not violate this subpart if that judge ment in accordance with paragraph advocate acts in accordance with a su- (a)(1) of this section shall not, standing pervisory judge advocate’s written and alone, be a basis for an adverse evalua- reasonable resolution of an arguable tion or other prejudicial action. question of professional duty. (b) [Reserved] (b) [Reserved] § 776.56 Unauthorized practice of law. § 776.54 Responsibilities regarding nonlawyer assistants. (a) Unauthorized practice of law. (1) A judge advocate shall not: (a) Responsibilities regarding nonlawyer (i) Except as authorized by an appro- assistants priate military department, practice (1) With respect to a nonlawyer under law in a jurisdiction where doing so is the authority, supervision, or direction prohibited by the regulations of the of a judge advocate: legal profession in that jurisdiction; or (i) The senior supervisory judge advo- (ii) Assist a person who is not a mem- cate in an office shall make reasonable ber of the bar in the performance of ac- efforts to ensure that the person’s con- tivity that constitutes the unauthor- duct is compatible with the profes- ized practice of law. sional obligations of the judge advo- (2) [Reserved] cate; (ii) A judge advocate having direct (b) [Reserved] supervisory authority over the nonlaw- §§ 776.57–776.65 [Reserved] yer shall make reasonable efforts to ensure that the person’s conduct is § 776.66 Bar admission and discipli- compatible with the professional obli- nary matters. gations of the judge advocate; and (iii) A judge advocate shall be respon- (a) Bar admission and disciplinary mat- sible for conduct of such a person that ters. (1) A judge advocate in connection would be a violation of this subpart B with a bar admission application, ap- if engaged in by a judge advocate if: plication for appointment or for active (A) The judge advocate orders or, duty as a judge advocate, certification with the knowledge of the specific con- by the Judge Advocate General, or a duct, ratifies the conduct involved; or disciplinary matter, shall not: (B) The judge advocate has direct su- (i) Knowingly make a false statement pervisory authority over the person, of fact; or and knows of the conduct at a time (ii) Fail to disclose a fact necessary when its consequences can be avoided to correct a misapprehension known by or mitigated but fails to take reason- the person to have arisen in the mat- able remedial action. ter, or knowingly fail to respond to a (2) [Reserved] lawful demand for information from an (b) [Reserved] admissions or disciplinary authority, except that this section does not re- § 776.55 Professional independence of quire disclosure of information other- a judge advocate. wise protected by § 776.25. (a) Professional independence of a (2) [Reserved] judge advocate. (1) Notwithstanding a (b) [Reserved] judge advocate’s status as a commis- sioned officer subject, generally, to the § 776.67 Judicial and legal officials. authority of superiors, a judge advo- A judge advocate shall not make a cate detailed or assigned to represent statement that the judge advocate an individual member or employee of knows to be false or with reckless dis- the Department of the Navy is ex- regard as to its truth or falsity con- pected to exercise unfettered loyalty cerning the qualifications or integrity and professional independence during of a judge, investigating officer, hear- the representation consistent with this ing officer, adjudicatory officer, or subpart and remains ultimately re- public legal officer, or of a candidate sponsible for acting in the best interest for election or appointment to judicial of the individual client. or legal office.
524
VerDate 25
§ 776.68 Reporting professional mis- §§ 776.71–776.75 [Reserved] conduct. (a) Reporting professional misconduct. Subpart C—Complaint Processing (1) A judge advocate having knowledge Procedures that another judge advocate has com- mitted a violation of this subpart that § 776.76 Policy. raises a substantial question as to that (a) It is JAG’s policy to expeditiously judge advocate’s honesty, trust- and fairly investigate and resolve all worthiness, or fitness as a judge advo- allegations of professional impropriety cate in other respects, shall report lodged against attorneys under JAG such a violation pursuant to regula- supervision. (As used hereinafter, the tions promulgated by the Judge Advo- term ‘‘judge advocates’’ refers to all at- torneys under JAG supervision.) cate General. (b) JAG approval will be obtained (2) A judge advocate having knowl- through the Rules Counsel before con- edge that a judge has committed a vio- ducting any formal investigation or lation of applicable rules of judicial preliminary inquiry into an alleged conduct that raises a substantial ques- violation of subpart B or the Code of tion as to the judge’s fitness for office Judicial Conduct. The preliminary in- shall report such a violation pursuant quiry and subsequent investigation will to regulations promulgated by the be conducted according to the proce- Judge Advocate General. dures set forth in this part. (3) This section does not require dis- closure of information otherwise pro- § 776.77 Related investigations and ac- tions. tected by § 776.25. (b) [Reserved] Acts or omissions may constitute professional misconduct, criminal mis- § 776.69 Misconduct. conduct, or poor performance of duty. Care must be taken to distinguish (a) Misconduct. (1) It is professional among the different aspects of a judge misconduct for a judge advocate to: advocate’s conduct to determine who (i) Violate or attempt to violate this may take official action. subpart, knowingly assist or induce an- (a) Legal ethics and questions involv- other to do so, or do so through the ing the professional misconduct of acts of another; judge advocates are within the exclu- (ii) Commit a criminal act that re- sive province of JAG. Ethical or profes- flects adversely on the judge advocate’s sional misconduct will not be attrib- honesty, trustworthiness, or fitness as uted to any judge advocate in any offi- a judge advocate in other respects; cial record without a final JAG deter- (iii) Engage in conduct involving dis- mination, made under this part, that honesty, fraud, deceit, or misrepresen- such misconduct has occurred. (b) Poor performance is properly ad- tation; dressed by the judge advocate’s report- (iv) Engage in conduct that is preju- ing senior through a variety of admin- dicial to the administration of justice; istrative actions, including fitness re- (v) State or imply an ability to influ- ports. Criminal misconduct is properly ence improperly a government agency addressed by the judge advocate’s com- or official; or mander through disciplinary action (vi) Knowingly assist a judge or judi- under the UCMJ or through referral to cial officer in conduct that is a viola- appropriate civil authority. tion of applicable rules of judicial con- (c) Prior JAG approval is not re- duct or other law. quired to investigate allegations of (2) [Reserved] criminal conduct or poor performance (b) [Reserved] of duty involving judge advocates. (d) When, however, investigations § 776.70 Jurisdiction. into criminal conduct or poor perform- ance reveal conduct that constitutes a Judge advocates shall be governed by violation of this part, or of the Code of this part. Judicial Conduct in the case of judges,
525
VerDate 25
such conduct shall be reported to the (2) In all other cases, the Assistant Rules Counsel immediately. Judge Advocate General (Civil Law) (e) Inquiries into professional mis- shall act as Rules Counsel. conduct allegations will normally be (b) The Rules Counsel shall review held in abeyance until related criminal the complaint to determine whether, if investigations are completed. true,— (1) It alleges ineffective assistance of § 776.78 Informal complaints. counsel, or other violations of subpart Informal, anonymous, or ‘‘hot line’’ B of this part, as a matter of defense in type complaints alleging professional a court-martial, administrative board, misconduct must be referred to appro- or nonjudicial punishment proceeding priate authority (such as the JAG In- and, if so, the Rules Counsel shall for- spector General or the concerned com- ward it to the proper appellate author- mander) for appropriate inquiry. Such ity for appropriate action and return; complaints are not, by themselves, cog- (2) In other cases, it establishes prob- nizable under this part but may, if rea- able cause to believe that a violation of sonably confirmed upon appropriate in- subpart B of this part or of the Code of quiry, be the basis of a formal com- Judicial Conduct has occurred. plaint described in § 776.79. (c) The Rules Counsel shall close the file without further action if the com- § 776.79 The complaint. plaint does not establish probable The complaint shall— cause to believe that a violation has (a) Be in writing and signed by the occurred. The Rules Counsel shall no- complainant; tify the judge advocate concerned that (b) State that the complainant has the file has been closed. personal knowledge, or has otherwise received reliable information indicat- § 776.81 Charges. ing, that: (a) If the Rules Counsel determines (1) The judge advocate concerned is, that probable cause is established, he or has been, engaged in misconduct or she shall draft charges alleging vio- that demonstrates a lack of integrity lations of subpart B of this part or of or a failure to meet the ethical stand- the Code of Judicial Conduct and for- ards of the profession, or both; or ward the charges, together with the (2) The judge advocate concerned is original complaint and any allied pa- ethically, professionally, or morally pers— unqualified to perform his or her du- (1) In cases involving Marine Corps ties; and judge advocates not serving as defense (c) Contain a complete, factual state- counsel or attached to Navy units, to ment of the acts or omissions con- the officer exercising general court- stituting the substance of the com- martial jurisdiction (OEGCMJ) over plaint, as well as a description of any the concerned judge advocate, and re- attempted resolution with the attorney quest, on behalf of JAG, that the concerned. Supporting statements, if OEGCMJ appoint a judge advocate any, should be attached to the com- (normally the concerned officer’s su- plaint. pervisor) to conduct a preliminary in- quiry into the matter; § 776.80 Initial screening and Rules (2) In all other cases, to the super- Counsel. visory judge advocate in the charged (a) The complaint shall be forwarded judge advocate’s chain of command (or to the Judge Advocate General (Admin- such other officer as JAG may des- istrative Law Division) with a copy to ignate), and direct, on behalf of JAG, the judge advocate concerned. The the supervisory judge advocate to con- complaint shall be logged and then for- duct a preliminary inquiry into the warded to the Rules Counsel. matter. (1) In cases involving Marine Corps (b) The Rules Counsel shall provide a judge advocates, the Director, Judge copy of the charges, complaint, and Advocate Division shall act as Rules any allied papers to the judge advocate Counsel. against whom the complaint is made
526
VerDate 25
and notify him or her that a prelimi- and material witnesses to the extent nary inquiry will be conducted. practicable; (c) The Rules Counsel shall also pro- (2) Identify, gather, and preserve all vide a copy of the charges to the com- other relevant and material evidence; manding officer, or equivalent, of the (3) Provide the judge advocate con- judge advocate concerned if the com- cerned an opportunity to review all plaint involves a judge advocate on ac- evidence, affidavits, and statements tive duty and the commanding officer collected and a reasonable period of is not the officer appointed to conduct time (normally not exceeding 7 days) the preliminary inquiry. to submit a written statement or any (d) The Rules Counsel shall also for- other written material that the judge ward a copy of the charges: advocate wishes considered. (1) In cases involving Navy or Marine (c) The PIO may appoint and use Corps judge advocates serving in Naval such assistants as may be necessary to Legal Service Command units, to Com- conduct the preliminary inquiry. mander, Naval Legal Service Command (d) The PIO shall personally review (COMNAVLEGSVCCOM); the results of the preliminary inquiry (2) In cases involving Navy judge ad- to determine whether, by a preponder- vocates serving in Marine Corps units, ance of the evidence, a violation of sub- or involving Marine Corps judge advo- part B of this part or of the Code of Ju- cates serving in Navy units to the dicial Conduct, has occurred, and shall Commandant of the Marine Corps take one of the following actions: (Attn: JA); (1) If the PIO determines that no vio- (3) In cases involving members of the lation has occurred or that the viola- Navy-Marine Corps trial judiciary, to tion is minor or technical in nature the Trial Judiciary Chief Judge; and and warrants only corrective counsel- ing, then he or she shall forward (via (4) To the appropriate attorney dis- the OEGCMJ in appropriate Marine cipline section if the complaint in- Corps cases) the results of the prelimi- volves judge advocates certified by the nary inquiry to the Rules Counsel to- Judge Advocates General/Chief Counsel gether with his or her recommendation of the other uniformed services. that the file be closed, providing copies to all parties to whom the charges were § 776.82 Preliminary inquiry. previously sent. (a) The purpose of the preliminary in- (2) If the PIO determines by a prepon- quiry is to determine whether ques- derance of the evidence that a viola- tioned conduct may constitute a viola- tion did occur, and that corrective ac- tion of subpart B of this part or the tion other than counseling may be war- Code of Judicial Conduct. The prelimi- ranted, he or she shall forward (via the nary inquiry is not an ‘‘ethical inves- OEGCMJ in appropriate Marine Corps tigation’’ that State licensing authori- cases) the results of the preliminary in- ties might require lawyers to report. quiry to the Rules Counsel together (b) Upon receipt of the complaint and with all related materials and his or charges, the officer appointed to con- her recommendations. The PIO will duct the preliminary inquiry (PIO) provide copies of the materials for- shall promptly investigate the charges warded to all parties to whom the following generally the procedures set charges were sent. forth in the Manual of the Judge Advo- (e) The Rules Counsel shall review all cate General [available from Office of reports of preliminary inquiries for- the Judge Advocate General, Adminis- warded pursuant to paragraph (d) of trative Law Division, 200 Stovall this section. Street, Alexandria, VA 22332–2400] for (1) If the Rules Counsel determines the conduct of fact-finding bodies not that no further action is warranted, he required to conduct a hearing. Reports or she shall close the file and notify of investigation by other authorities the judge advocate concerned, his or such as state bar associations may be her commanding officer, and all offi- used. The PIO should also— cials previously provided copies of the (1) Identify and obtain sworn affida- complaint. This action does not pre- vits or statements from all relevant vent command authority from taking
527
VerDate 25
appropriate disciplinary or administra- service support section, law center, or tive action. to a Navy or Marine Corps activity lo- (2) If the Rules Counsel determines cated within 100 miles of the hearing that further action is warranted, he or site at the time of the scheduled hear- she shall— ing, and if such counsel is reasonably (i) In cases involving Marine Corps available as determined by the re- judge advocates not serving as defense quested counsel’s reporting senior in counsel or attached to Navy units, re- his or her sole discretion. There is no quest, on behalf of JAG, that the right to detailed counsel if requested OEGCMJ appoint a disinterested judge counsel is unavailable. advocate (normally senior to the con- (d) If a hearing is requested, the in- cerned judge advocate and not pre- vestigating officer will conduct it after viously involved in the case) to initiate reasonable notice to the judge advocate an ethics investigation into the mat- concerned. The hearing will not be un- ter; reasonably delayed. The hearing is not (ii) In all other cases, appoint, on be- adversarial in nature and there is no half of JAG, a disinterested judge advo- right to subpoena witnesses. Rules of cate (normally senior to the individual evidence do not apply. The concerned whose conduct is being investigated judge advocate or his or her counsel and not previously involved in the may question witnesses that may ap- case) to initiate an ethics investiga- pear. The proceedings shall be recorded tion; and but no transcript of the hearing need (iii) Notify all interested command be made. Evidence gathered during, or officials. subsequent to, the preliminary inquiry § 776.83 Ethics investigation. and such additional evidence as may be offered by the concerned judge advo- (a) Whenever an ethics investigation cate shall be considered. is initiated, the concerned judge advo- (e) After completing the hearing, the cate will be so notified in writing by investigating officer shall prepare a the Rules Counsel. summary of the evidence and forward (b) The concerned judge advocate will it together with his or her rec- also be provided written notice of his ommendations to the Rules Counsel or her right to request a hearing before via— the investigating officer; to inspect all (1) In cases involving Navy or Marine evidence gathered; to present written Corps judge advocates serving with or oral statements or materials for Naval Legal Service Command units, consideration; to call witnesses at his Commander, Naval Legal Service Com- or her own expense (local military wit- mand; nesses should be made available at no cost); to be assisted by counsel (para- (2) In cases involving Navy judge ad- graph (c) of this section); to challenge vocates serving with Marine Corps the investigating officer for cause units, the Commandant of the Marine (such challenges must be made in writ- Corps (Attn: JA); ing and sent to the Rules Counsel via (3) In cases involving Navy or Marine the challenged officer); and to waive Corps judge advocates serving in subor- any or all of these rights. dinate Navy fleet or staff billets, the (c) The respondent may be rep- fleet or staff judge advocate attached resented by counsel at the hearing. to the appropriate second-echelon com- Such counsel may be— mander; (1) A civilian attorney retained at no (4) In cases involving members of the expense to the government; or, Navy-Marine Corps Trial Judiciary, the (2) In the case of a military respond- Trial Judiciary Chief Judge; ent, military counsel— (5) In cases involving Marine Corps (i) Detailed by the cognizant naval judge advocates serving in defense bil- legal service office, law center, or legal lets, via the Marine Corps defense serv- service support section; or ice chain of command; (ii) Requested by the respondent, if (6) In cases involving Marine Corps such counsel is attached to the cog- judge advocates not serving in defense nizant naval legal service office, legal counsel billets or in Navy units, via the
528
VerDate 25
OEGCMJ over the concerned judge ad- (iv) If JAG finds that the misconduct vocate; and so adversely affects the judge advo- (7) The appropriate attorney dis- cate’s continuing ability to practice cipline section if the complaint in- law in the naval service that certifi- volves judge advocates certified by the cation under article 27(b), UCMJ, 10 Judge Advocates General/Chief Counsel U.S.C. 827(b), should be suspended, JAG of the other uniformed services. may direct such certification to be sus- (f) A copy of the report shall be pro- pended for a prescribed period; vided to the concerned judge advocate (v) If JAG finds that the misconduct and to all authorities previously pro- so prejudices the reputation of the vided copies of the charges who are not judge advocate community, the admin- via addressees. istration of military justice, the prac- (g) The Rules Counsel shall review tice of law under the cognizance of the report and either forward it to JAG JAG, or the armed services as a whole, together with his or her recommenda- that certification under article 27(b), tions or return it, via the appropriate UCMJ, 10 U.S.C. 827(b), is no longer ap- chain, to the investigating officer for propriate, JAG may direct such certifi- further inquiry into specified areas. cation to be removed; or (vi) In the case of a judge, if JAG § 776.84 Action by JAG. finds that the misconduct so prejudices the reputation of military trial and ap- (a) JAG is not bound by the Rules pellate judges that certification under Counsel’s or investigating officer’s rec- article 26(b), UCMJ, 10 U.S.C. 826(b), is ommendations, but will base his action no longer appropriate, direct such cer- on the record as a whole. tification to be removed; and (b) JAG may, but is not required to, (vii) Direct the Rules Counsel to con- refer any case to the Professional Re- tact appropriate authorities such as sponsibility Committee for an advisory the Chief of Naval Personnel or the opinion on interpretation of the rules Commandant of the Marine Corps so in subpart B of this part or their appli- that pertinent entries in appropriate cation to the facts of a particular case. DON records may be made; to make en- (c) Upon receipt of the investigation, tries in and to close the file; to notify and any requested advisory opinion, the individual concerned as well as any JAG will take such action, as JAG con- officials previously provided copies of siders appropriate in JAG’s sole discre- the complaint; and notify appropriate tion. JAG may, for example— tribunals and authorities of any action (1) Return the report for further in- taken to suspend, decertify, or limit quiry into specified areas; the practice of an attorney as counsel (2) If JAG considers the allegations before courts-martial or the Navy-Ma- to be unfounded, or that no further ac- rine Corps Court of Military Review, tion is warranted, JAG will direct the administrative boards, or as a legal as- Rules Counsel to make the appropriate sistance attorney. file entries and to notify all interested parties accordingly; § 776.85 Finality. (3) If JAG considers the allegations Any action taken by JAG is final to be supported by clear and convinc- subject to any remedies afforded by ing evidence, JAG may take appro- Navy Regulations to the concerned priate corrective action including, but counsel. not limited to: (i) Limiting the concerned judge ad- § 776.86 Report to bar. vocate to practice under direct super- Upon determination by JAG that a vision of a superior judge advocate; violation of subpart B of this part or (ii) Limiting the concerned judge ad- the Code of Judicial Conduct has oc- vocate to practicing in certain areas or curred, JAG may cause the Rules forbidding him or her from practicing Counsel to report that fact to the li- in certain areas; censing authorities of the attorney (iii) Suspending or revoking the con- concerned. If so reported, notice to the cerned judge advocate’s authority to concerned attorney shall be provided provide legal assistance; by the Rules Counsel.
529
VerDate 25
§§ 776.87–776.89 [Reserved] rently in a civilian law practice. In such a situation, the potential is high Subpart D—Outside Part-Time Law for actual or apparent conflict arising Practice of Naval Service At- from the mere opportunity to obtain clients through contacts in the course torneys of official business. Unique conflicts or § 776.90 Background. adverse appearances may also develop because of a DON attorney’s special (a) A DON attorney’s primary profes- ethical responsibilities and loyalties. sional responsibility is to DON, and he or she is expected to devote the re- § 776.91 Definition. quired level of time and effort to satis- Outside part-time law practice is de- factorily accomplish assigned duties. fined as any regular provision of legal In addition to the obligations of an at- advice, counsel, assistance or represen- torney engaged in the outside practice tation, with or without compensation, of law to comply with local bar rules that is not performed pursuant or inci- governing professional responsibility dent to duties as a naval service attor- and conduct, DON attorneys remain ney. Occasional uncompensated assist- bound by subpart B of this part. ance rendered to relatives or friends is (b) Outside employment of DON per- excluded from this definition. Teaching sonnel, both military and civilian, is a law course as part of a program of limited by Executive Order 12731, 55 FR education or training offered by an in- 42547, 3 CFR, 1990 Comp., p. 306, and stitution of higher education is not Secretary of the Navy Instruction practicing law for purposes of this part. 5370.2J, Standards of Conduct [avail- able on request from the Office of the § 776.92 Policy. Judge Advocate General, Administra- tive Law Division, 200 Stovall Street, (a) As a general rule, JAG will not Alexandria, VA 22332–2400]. Addition- approve requests to practice law part- ally, section 0710 of the Manual of the time in association with lawyers or Judge Advocate General prohibits ac- firms which represent clients with in- tive duty judge advocates and civilian terests adverse to DON. attorneys under the supervision of JAG (b) JAG’s approval of a particular re- from accepting or receiving, directly or quest does not constitute DON certifi- indirectly, any fee or compensation of cation of the requesting attorney’s any nature for legal services rendered qualifications to engage in the pro- to those persons eligible for legal as- posed practice or DON endorsement of sistance under article 0706 of the Man- activities undertaken after such prac- ual of the Judge Advocate General, tice begins. Furthermore, because any whether or not the service is rendered outside law practice is necessarily be- during duty hours, or is part of official yond the scope of a DON attorney’s of- duties. ficial duties, the requesting attorney (c) Additionally, DON officers and should consider obtaining personal employees are prohibited by 18 U.S.C. malpractice insurance coverage. 209 from receiving pay or allowances from any source other than the United § 776.93 Action. States for the performance of any offi- (a) DON attorneys to whom this en- cial service or duty unless specifically closure applies who contemplate en- authorized by law. Furthermore, 18 gaging in an outside part-time law U.S.C. 203 and 205 prohibit Federal offi- practice must first obtain approval cers and employees from personally from JAG. Requests should be for- representing or receiving, directly or warded in the form provided in Judge indirectly, compensation for represent- Advocate General Instruction 5803.1A ing any other person before any Fed- [the form is available on request from eral agency or court on matters in the Administrative Law Division] to which the United States is a party or the Administrative Law Division, via has an interest. the attorney’s chain of command. Ma- (d) These limitations are particularly rine Corps attorneys will also include significant when applied to DON attor- Commandant of the Marine Corps neys who intend to engage concur- (JAR) as a via addressee.
530
VerDate 11
(b) The requesting attorney’s com- (a) When civilian counsel is retained manding officer may— by an individual client, the DON attor- (1) Disapprove and return the request ney assigned to that client shall inform if he or she perceives actual or appar- civilian counsel— ent conflicts of interests; or (1) Of the contents of this part; (2) Forward the request recommend- (2) That subpart B of this part applies ing approval and providing such other to civilian counsel practicing before information as may be relevant. military tribunals, courts, or boards as (c) JAG will review the request and a condition of such practice; and advise applicants in writing of the de- cision, and of any conditions and limi- (3) That subpart B of this part takes tations under which a particular prac- precedence over other rules of profes- tice may be undertaken. Until permis- sional conduct that might otherwise sion is granted, applicants will not apply. commence any outside law practice. (b) If an individual client designates civilian counsel as chief counsel, the § 776.94 Revalidation. detailed DON attorney must defer to (a) Attorneys to whom permission is civilian counsel in any conflict over given to engage in the outside part- trial tactics. If, however, counsel have time practice of law will notify JAG in ‘‘co-counsel’’ status, then conflict in writing, via their chain of command, proposed trial tactics requires the cli- within 30 days of any material change ent to be consulted to resolve the con- in: flict. (1) The nature or scope of the outside (c) If civilian counsel has, in the practice described in their requests, in- opinion of the DON attorney, acted cluding termination; or contrary to the requirements of sub- (2) Their DON assignment or respon- part B of this part, the matter should sibilities. first be discussed with civilian counsel. (b) Attorneys to whom permission is If not resolved between counsel, the given to engage in the outside practice client must be informed of the matter of law will annually resubmit an appli- by the DON attorney. If, after being ap- cation to continue the practice with prised of possible misconduct, the cli- current information by 1 October each ent approves of the questioned conduct, year. the judge advocate shall attempt to § 776.95 Relations with non-DON civil- withdraw from the case in accordance ian counsel. with § 776.35. The client shall be in- Employment of non-DON civilian formed of such intent to withdraw counsel by an individual client alters prior to action by the judge advocate. no responsibilities of a DON attorney to that client. PARTS 777–799 [RESERVED]
531
VerDate 25
A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabet- ical list of agencies publishing in the CFR are included in the CFR Index and Finding Aids volume to the Code of Federal Regulations which is published sepa- rately and revised annually. Table of CFR Titles and Chapters Alphabetical List of Agencies Appearing in the CFR List of CFR Sections Affected
533
VerDate 25
Title 1—General Provisions
I Administrative Committee of the Federal Register (Parts 1—49) II Office of the Federal Register (Parts 50—299) IV Miscellaneous Agencies (Parts 400—500)
Title 2—[Reserved]
Title 3—The President
I Executive Office of the President (Parts 100—199)
Title 4—Accounts
I General Accounting Office (Parts 1—99) II Federal Claims Collection Standards (General Accounting Of- fice—Department of Justice) (Parts 100—299)
Title 5—Administrative Personnel
I Office of Personnel Management (Parts 1—1199) II Merit Systems Protection Board (Parts 1200—1299) III Office of Management and Budget (Parts 1300—1399) IV Advisory Committee on Federal Pay (Parts 1400—1499) V The International Organizations Employees Loyalty Board (Parts 1500—1599) VI Federal Retirement Thrift Investment Board (Parts 1600—1699) VII Advisory Commission on Intergovernmental Relations (Parts 1700—1799) VIII Office of Special Counsel (Parts 1800—1899) IX Appalachian Regional Commission (Parts 1900—1999) XI Armed Forces Retirement Home (Part 2100) XIV Federal Labor Relations Authority, General Counsel of the Fed- eral Labor Relations Authority and Federal Service Impasses Panel (Parts 2400—2499) XV Office of Administration, Executive Office of the President (Parts 2500—2599) XVI Office of Government Ethics (Parts 2600—2699) XXI Department of the Treasury (Parts 3100—3199)
535
VerDate 25
XXII Federal Deposit Insurance Corporation (Part 3201) XXIII Department of Energy (Part 3301) XXIV Federal Energy Regulatory Commission (Part 3401) XXV Department of the Interior (Part 3501) XXVI Department of Defense (Part 3601) XXVIII Department of Justice (Part 3801) XXIX Federal Communications Commission (Parts 3900—3999) XXX Farm Credit System Insurance Corporation (Parts 4000—4099) XXXI Farm Credit Administration (Parts 4100—4199) XXXIII Overseas Private Investment Corporation (Part 4301) XXXV Office of Personnel Management (Part 4501) XL Interstate Commerce Commission (Part 5001) XLI Commodity Futures Trading Commission (Part 5101) XLII Department of Labor (Part 5201) XLIII National Science Foundation (Part 5301) XLV Department of Health and Human Services (Part 5501) XLVI Postal Rate Commission (Part 5601) XLVII Federal Trade Commission (Part 5701) XLVIII Nuclear Regulatory Commission (Part 5801) L Department of Transportation (Part 6001) LII Export-Import Bank of the United States (Part 6201) LIII Department of Education (Parts 6300—6399) LIV Environmental Protection Agency (Part 6401) LVII General Services Administration (Part 6701) LVIII Board of Governors of the Federal Reserve System (Part 6801) LIX National Aeronautics and Space Administration (Part 6901) LX United States Postal Service (Part 7001) LXI National Labor Relations Board (Part 7101) LXII Equal Employment Opportunity Commission (Part 7201) LXIII Inter-American Foundation (Part 7301) LXV Department of Housing and Urban Development (Part 7501) LXVI National Archives and Records Administration (Part 7601) LXIX Tennessee Valley Authority (Part 7901) LXXI Consumer Product Safety Commission (Part 8101) LXXIV Federal Mine Safety and Health Review Commission (Part 8401) LXXVI Federal Retirement Thrift Investment Board (Part 8601) LXXVII Office of Management and Budget (Part 8701)
Title 6—[Reserved]
Title 7—Agriculture
SUBTITLE A—Office of the Secretary of Agriculture (Parts 0—26) SUBTITLE B—Regulations of the Department of Agriculture
536
VerDate 25
I Agricultural Marketing Service (Standards, Inspections, Mar- keting Practices), Department of Agriculture (Parts 27—209) II Food and Nutrition Service, Department of Agriculture (Parts 210—299) III Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 300—399) IV Federal Crop Insurance Corporation, Department of Agriculture (Parts 400—499) V Agricultural Research Service, Department of Agriculture (Parts 500—599) VI Natural Resources Conservation Service, Department of Agri- culture (Parts 600—699) VII Farm Service Agency, Department of Agriculture (Parts 700— 799) VIII Grain Inspection, Packers and Stockyards Administration (Fed- eral Grain Inspection Service), Department of Agriculture (Parts 800—899) IX Agricultural Marketing Service (Marketing Agreements and Or- ders; Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900—999) X Agricultural Marketing Service (Marketing Agreements and Or- ders; Milk), Department of Agriculture (Parts 1000—1199) XI Agricultural Marketing Service (Marketing Agreements and Or- ders; Miscellaneous Commodities), Department of Agriculture (Parts 1200—1299) XIII Northeast Dairy Compact Commission (Parts 1300—1399) XIV Commodity Credit Corporation, Department of Agriculture (Parts 1400—1499) XV Foreign Agricultural Service, Department of Agriculture (Parts 1500—1599) XVI Rural Telephone Bank, Department of Agriculture (Parts 1600— 1699) XVII Rural Utilities Service, Department of Agriculture (Parts 1700— 1799) XVIII Rural Housing Service, Rural Business-Cooperative Service, Rural Utilities Service, and Farm Service Agency, Depart- ment of Agriculture (Parts 1800—2099) XXVI Office of Inspector General, Department of Agriculture (Parts 2600—2699) XXVII Office of Information Resources Management, Department of Agriculture (Parts 2700—2799) XXVIII Office of Operations, Department of Agriculture (Parts 2800— 2899) XXIX Office of Energy, Department of Agriculture (Parts 2900—2999) XXX Office of the Chief Financial Officer, Department of Agriculture (Parts 3000—3099) XXXI Office of Environmental Quality, Department of Agriculture (Parts 3100—3199) XXXII [Reserved]
537
VerDate 25
XXXIII Office of Transportation, Department of Agriculture (Parts 3300—3399) XXXIV Cooperative State Research, Education, and Extension Service, Department of Agriculture (Parts 3400—3499) XXXV Rural Housing Service, Department of Agriculture (Parts 3500— 3599) XXXVI National Agricultural Statistics Service, Department of Agri- culture (Parts 3600—3699) XXXVII Economic Research Service, Department of Agriculture (Parts 3700—3799) XXXVIII World Agricultural Outlook Board, Department of Agriculture (Parts 3800—3899) XLI [Reserved] XLII Rural Business-Cooperative Service and Rural Utilities Service, Department of Agriculture (Parts 4200—4299)
Title 8—Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice (Parts 1—499)
Title 9—Animals and Animal Products
I Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 1—199) II Grain Inspection, Packers and Stockyards Administration (Packers and Stockyards Programs), Department of Agri- culture (Parts 200—299) III Food Safety and Inspection Service, Meat and Poultry Inspec- tion, Department of Agriculture (Parts 300—599)
Title 10—Energy
I Nuclear Regulatory Commission (Parts 0—199) II Department of Energy (Parts 200—699) III Department of Energy (Parts 700—999) X Department of Energy (General Provisions) (Parts 1000—1099) XI United States Enrichment Corporation (Parts 1100—1199) XVII Defense Nuclear Facilities Safety Board (Parts 1700—1799)
Title 11—Federal Elections
I Federal Election Commission (Parts 1—9099)
Title 12—Banks and Banking
I Comptroller of the Currency, Department of the Treasury (Parts 1—199) II Federal Reserve System (Parts 200—299)
538
VerDate 25
III Federal Deposit Insurance Corporation (Parts 300—399) IV Export-Import Bank of the United States (Parts 400—499) V Office of Thrift Supervision, Department of the Treasury (Parts 500—599) VI Farm Credit Administration (Parts 600—699) VII National Credit Union Administration (Parts 700—799) VIII Federal Financing Bank (Parts 800—899) IX Federal Housing Finance Board (Parts 900—999) XI Federal Financial Institutions Examination Council (Parts 1100—1199) XIV Farm Credit System Insurance Corporation (Parts 1400—1499) XV Thrift Depositor Protection Oversight Board (Parts 1500—1599) XVII Office of Federal Housing Enterprise Oversight, Department of Housing and Urban Development (Parts 1700-1799) XVIII Community Development Financial Institutions Fund, Depart- ment of the Treasury (Parts 1800—1899)
Title 13—Business Credit and Assistance
I Small Business Administration (Parts 1—199) III Economic Development Administration, Department of Com- merce (Parts 300—399)
Title 14—Aeronautics and Space
I Federal Aviation Administration, Department of Transportation (Parts 1—199) II Office of the Secretary, Department of Transportation (Aviation Proceedings) (Parts 200—399) III Commercial Space Transportation, Federal Aviation Adminis- tration, Department of Transportation (Parts 400—499) V National Aeronautics and Space Administration (Parts 1200— 1299)
Title 15—Commerce and Foreign Trade
SUBTITLE A—Office of the Secretary of Commerce (Parts 0—29) SUBTITLE B—Regulations Relating to Commerce and Foreign Trade I Bureau of the Census, Department of Commerce (Parts 30—199) II National Institute of Standards and Technology, Department of Commerce (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399) IV Foreign-Trade Zones Board, Department of Commerce (Parts 400—499) VII Bureau of Export Administration, Department of Commerce (Parts 700—799)
539
VerDate 25
VIII Bureau of Economic Analysis, Department of Commerce (Parts 800—899) IX National Oceanic and Atmospheric Administration, Department of Commerce (Parts 900—999) XI Technology Administration, Department of Commerce (Parts 1100—1199) XIII East-West Foreign Trade Board (Parts 1300—1399) XIV Minority Business Development Agency (Parts 1400—1499) SUBTITLE C—Regulations Relating to Foreign Trade Agreements XX Office of the United States Trade Representative (Parts 2000— 2099) SUBTITLE D—Regulations Relating to Telecommunications and Information XXIII National Telecommunications and Information Administration, Department of Commerce (Parts 2300—2399)
Title 16—Commercial Practices
I Federal Trade Commission (Parts 0—999) II Consumer Product Safety Commission (Parts 1000—1799)
Title 17—Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1—199) II Securities and Exchange Commission (Parts 200—399) IV Department of the Treasury (Parts 400—499)
Title 18—Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of Energy (Parts 1—399) III Delaware River Basin Commission (Parts 400—499) VI Water Resources Council (Parts 700—799) VIII Susquehanna River Basin Commission (Parts 800—899) XIII Tennessee Valley Authority (Parts 1300—1399)
Title 19—Customs Duties
I United States Customs Service, Department of the Treasury (Parts 1—199) II United States International Trade Commission (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399)
Title 20—Employees’ Benefits
I Office of Workers’ Compensation Programs, Department of Labor (Parts 1—199)
540
VerDate 25
II Railroad Retirement Board (Parts 200—399) III Social Security Administration (Parts 400—499) IV Employees’ Compensation Appeals Board, Department of Labor (Parts 500—599) V Employment and Training Administration, Department of Labor (Parts 600—699) VI Employment Standards Administration, Department of Labor (Parts 700—799) VII Benefits Review Board, Department of Labor (Parts 800—899) VIII Joint Board for the Enrollment of Actuaries (Parts 900—999) IX Office of the Assistant Secretary for Veterans’ Employment and Training, Department of Labor (Parts 1000—1099)
Title 21—Food and Drugs
I Food and Drug Administration, Department of Health and Human Services (Parts 1—1299) II Drug Enforcement Administration, Department of Justice (Parts 1300—1399) III Office of National Drug Control Policy (Parts 1400—1499)
Title 22—Foreign Relations
I Department of State (Parts 1—199) II Agency for International Development, International Develop- ment Cooperation Agency (Parts 200—299) III Peace Corps (Parts 300—399) IV International Joint Commission, United States and Canada (Parts 400—499) V United States Information Agency (Parts 500—599) VI United States Arms Control and Disarmament Agency (Parts 600—699) VII Overseas Private Investment Corporation, International Devel- opment Cooperation Agency (Parts 700—799) IX Foreign Service Grievance Board Regulations (Parts 900—999) X Inter-American Foundation (Parts 1000—1099) XI International Boundary and Water Commission, United States and Mexico, United States Section (Parts 1100—1199) XII United States International Development Cooperation Agency (Parts 1200—1299) XIII Board for International Broadcasting (Parts 1300—1399) XIV Foreign Service Labor Relations Board; Federal Labor Relations Authority; General Counsel of the Federal Labor Relations Authority; and the Foreign Service Impasse Disputes Panel (Parts 1400—1499) XV African Development Foundation (Parts 1500—1599) XVI Japan-United States Friendship Commission (Parts 1600—1699) XVII United States Institute of Peace (Parts 1700—1799)
541
VerDate 25
I Federal Highway Administration, Department of Transportation (Parts 1—999) II National Highway Traffic Safety Administration and Federal Highway Administration, Department of Transportation (Parts 1200—1299) III National Highway Traffic Safety Administration, Department of Transportation (Parts 1300—1399)
Title 24—Housing and Urban Development
SUBTITLE A—Office of the Secretary, Department of Housing and Urban Development (Parts 0—99) SUBTITLE B—Regulations Relating to Housing and Urban Devel- opment I Office of Assistant Secretary for Equal Opportunity, Department of Housing and Urban Development (Parts 100—199) II Office of Assistant Secretary for Housing-Federal Housing Com- missioner, Department of Housing and Urban Development (Parts 200—299) III Government National Mortgage Association, Department of Housing and Urban Development (Parts 300—399) V Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 500—599) VI Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 600—699) [Reserved] VII Office of the Secretary, Department of Housing and Urban Devel- opment (Housing Assistance Programs and Public and Indian Housing Programs) (Parts 700—799) VIII Office of the Assistant Secretary for Housing—deral Housing Commissioner, Department of Housing and Urban Develop- ment (Section 8 Housing Assistance Programs and Section 202 Direct Loan Program) (Parts 800—899) IX Office of Assistant Secretary for Public and Indian Housing, De- partment of Housing and Urban Development (Parts 900—999) X Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Interstate Land Sales Registration Program) (Parts 1700—1799) XII Office of Inspector General, Department of Housing and Urban Development (Parts 2000—2099) XX Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Parts 3200—3899) XXV Neighborhood Reinvestment Corporation (Parts 4100—4199)
Title 25—Indians
I Bureau of Indian Affairs, Department of the Interior (Parts 1— 299)
542
VerDate 25
II Indian Arts and Crafts Board, Department of the Interior (Parts 300—399) III National Indian Gaming Commission, Department of the Inte- rior (Parts 500—599) IV Office of Navajo and Hopi Indian Relocation (Parts 700—799) V Bureau of Indian Affairs, Department of the Interior, and Indian Health Service, Department of Health and Human Services (Part 900) VI Office of the Assistant Secretary-Indian Affairs, Department of the Interior (Part 1001) VII Office of the Special Trustee for American Indians, Department of the Interior (Part 1200)
Title 26—Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1— 799)
Title 27—Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury (Parts 1—299)
Title 28—Judicial Administration
I Department of Justice (Parts 0—199) III Federal Prison Industries, Inc., Department of Justice (Parts 300—399) V Bureau of Prisons, Department of Justice (Parts 500—599) VI Offices of Independent Counsel, Department of Justice (Parts 600—699) VII Office of Independent Counsel (Parts 700—799)
Title 29—Labor
SUBTITLE A—Office of the Secretary of Labor (Parts 0—99) SUBTITLE B—Regulations Relating to Labor I National Labor Relations Board (Parts 100—199) II Office of Labor-Management Standards, Department of Labor (Parts 200—299) III National Railroad Adjustment Board (Parts 300—399) IV Office of Labor-Management Standards, Department of Labor (Parts 400—499) V Wage and Hour Division, Department of Labor (Parts 500—899) IX Construction Industry Collective Bargaining Commission (Parts 900—999) X National Mediation Board (Parts 1200—1299) XII Federal Mediation and Conciliation Service (Parts 1400—1499) XIV Equal Employment Opportunity Commission (Parts 1600—1699)
543
VerDate 25
XVII Occupational Safety and Health Administration, Department of Labor (Parts 1900—1999) XX Occupational Safety and Health Review Commission (Parts 2200—2499) XXV Pension and Welfare Benefits Administration, Department of Labor (Parts 2500—2599) XXVII Federal Mine Safety and Health Review Commission (Parts 2700—2799) XL Pension Benefit Guaranty Corporation (Parts 4000—4999)
Title 30—Mineral Resources
I Mine Safety and Health Administration, Department of Labor (Parts 1—199) II Minerals Management Service, Department of the Interior (Parts 200—299) III Board of Surface Mining and Reclamation Appeals, Department of the Interior (Parts 300—399) IV Geological Survey, Department of the Interior (Parts 400—499) VI Bureau of Mines, Department of the Interior (Parts 600—699) VII Office of Surface Mining Reclamation and Enforcement, Depart- ment of the Interior (Parts 700—999)
Title 31—Money and Finance: Treasury
SUBTITLE A—Office of the Secretary of the Treasury (Parts 0— 50) SUBTITLE B—Regulations Relating to Money and Finance I Monetary Offices, Department of the Treasury (Parts 51—199) II Fiscal Service, Department of the Treasury (Parts 200—399) IV Secret Service, Department of the Treasury (Parts 400—499) V Office of Foreign Assets Control, Department of the Treasury (Parts 500—599) VI Bureau of Engraving and Printing, Department of the Treasury (Parts 600—699) VII Federal Law Enforcement Training Center, Department of the Treasury (Parts 700—799) VIII Office of International Investment, Department of the Treasury (Parts 800—899)
Title 32—National Defense
SUBTITLE A—Department of Defense I Office of the Secretary of Defense (Parts 1—399) V Department of the Army (Parts 400—699) VI Department of the Navy (Parts 700—799) VII Department of the Air Force (Parts 800—1099) SUBTITLE B—Other Regulations Relating to National Defense
544
VerDate 25
XII Defense Logistics Agency (Parts 1200—1299) XVI Selective Service System (Parts 1600—1699) XIX Central Intelligence Agency (Parts 1900—1999) XX Information Security Oversight Office, National Archives and Records Administration (Parts 2000—2099) XXI National Security Council (Parts 2100—2199) XXIV Office of Science and Technology Policy (Parts 2400—2499) XXVII Office for Micronesian Status Negotiations (Parts 2700—2799) XXVIII Office of the Vice President of the United States (Parts 2800— 2899) XXIX Presidential Commission on the Assignment of Women in the Armed Forces (Part 2900)
Title 33—Navigation and Navigable Waters
I Coast Guard, Department of Transportation (Parts 1—199) II Corps of Engineers, Department of the Army (Parts 200—399) IV Saint Lawrence Seaway Development Corporation, Department of Transportation (Parts 400—499)
Title 34—Education
SUBTITLE A—Office of the Secretary, Department of Education (Parts 1—99) SUBTITLE B—Regulations of the Offices of the Department of Education I Office for Civil Rights, Department of Education (Parts 100—199) II Office of Elementary and Secondary Education, Department of Education (Parts 200—299) III Office of Special Education and Rehabilitative Services, Depart- ment of Education (Parts 300—399) IV Office of Vocational and Adult Education, Department of Edu- cation (Parts 400—499) V Office of Bilingual Education and Minority Languages Affairs, Department of Education (Parts 500—599) VI Office of Postsecondary Education, Department of Education (Parts 600—699) VII Office of Educational Research and Improvement, Department of Education (Parts 700—799) XI National Institute for Literacy (Parts 1100-1199) SUBTITLE C—Regulations Relating to Education XII National Council on Disability (Parts 1200—1299)
Title 35—Panama Canal
I Panama Canal Regulations (Parts 1—299)
545
VerDate 25
I National Park Service, Department of the Interior (Parts 1—199) II Forest Service, Department of Agriculture (Parts 200—299) III Corps of Engineers, Department of the Army (Parts 300—399) IV American Battle Monuments Commission (Parts 400—499) V Smithsonian Institution (Parts 500—599) VII Library of Congress (Parts 700—799) VIII Advisory Council on Historic Preservation (Parts 800—899) IX Pennsylvania Avenue Development Corporation (Parts 900—999) XI Architectural and Transportation Barriers Compliance Board (Parts 1100—1199) XII National Archives and Records Administration (Parts 1200—1299) XIV Assassination Records Review Board (Parts 1400-1499)
Title 37—Patents, Trademarks, and Copyrights
I Patent and Trademark Office, Department of Commerce (Parts 1—199) II Copyright Office, Library of Congress (Parts 200—299) IV Assistant Secretary for Technology Policy, Department of Com- merce (Parts 400—499) V Under Secretary for Technology, Department of Commerce (Parts 500—599)
Title 38—Pensions, Bonuses, and Veterans’ Relief
I Department of Veterans Affairs (Parts 0—99)
Title 39—Postal Service
I United States Postal Service (Parts 1—999) III Postal Rate Commission (Parts 3000—3099)
Title 40—Protection of Environment
I Environmental Protection Agency (Parts 1—799) V Council on Environmental Quality (Parts 1500—1599)
Title 41—Public Contracts and Property Management
SUBTITLE B—Other Provisions Relating to Public Contracts 50 Public Contracts, Department of Labor (Parts 50–1—50–999) 51 Committee for Purchase From People Who Are Blind or Severely Disabled (Parts 51–1—51–99) 60 Office of Federal Contract Compliance Programs, Equal Employ- ment Opportunity, Department of Labor (Parts 60–1—60–999) 61 Office of the Assistant Secretary for Veterans Employment and Training, Department of Labor (Parts 61–1—61–999)
546
VerDate 25
SUBTITLE C—Federal Property Management Regulations System 101 Federal Property Management Regulations (Parts 101–1—101–99) 105 General Services Administration (Parts 105–1—105–999) 109 Department of Energy Property Management Regulations (Parts 109–1—109–99) 114 Department of the Interior (Parts 114–1—114–99) 115 Environmental Protection Agency (Parts 115–1—115–99) 128 Department of Justice (Parts 128–1—128–99) SUBTITLE D—Other Provisions Relating to Property Manage- ment [Reserved] SUBTITLE E—Federal Information Resources Management Regu- lations System 201 Federal Information Resources Management Regulation (Parts 201–1—201–99) [Reserved] SUBTITLE F—Federal Travel Regulation System 300 General 301 Temporary Duty (TDY) Travel Allowances (Parts 301–1—301–99) 302 Relocation Allowances (Parts 302–1—302–99) 303 Payment of Expenses Connected with the Death of Certain Em- ployees (Parts 303–1—303–2) 304 Payment from a Non-Federal Source for Travel Expenses (Parts 304–1—304–99)
Title 42—Public Health
I Public Health Service, Department of Health and Human Serv- ices (Parts 1—199) IV Health Care Financing Administration, Department of Health and Human Services (Parts 400—499) V Office of Inspector General-Health Care, Department of Health and Human Services (Parts 1000—1999)
Title 43—Public Lands: Interior
SUBTITLE A—Office of the Secretary of the Interior (Parts 1—199) SUBTITLE B—Regulations Relating to Public Lands I Bureau of Reclamation, Department of the Interior (Parts 200— 499) II Bureau of Land Management, Department of the Interior (Parts 1000—9999) III Utah Reclamation Mitigation and Conservation Commission (Parts 10000—10005)
Title 44—Emergency Management and Assistance
I Federal Emergency Management Agency (Parts 0—399) IV Department of Commerce and Department of Transportation (Parts 400—499)
547
VerDate 25
SUBTITLE A—Department of Health and Human Services (Parts 1—199) SUBTITLE B—Regulations Relating to Public Welfare II Office of Family Assistance (Assistance Programs), Administra- tion for Children and Families, Department of Health and Human Services (Parts 200—299) III Office of Child Support Enforcement (Child Support Enforce- ment Program), Administration for Children and Families, Department of Health and Human Services (Parts 300—399) IV Office of Refugee Resettlement, Administration for Children and Families, Department of Health and Human Services (Parts 400—499) V Foreign Claims Settlement Commission of the United States, Department of Justice (Parts 500—599) VI National Science Foundation (Parts 600—699) VII Commission on Civil Rights (Parts 700—799) VIII Office of Personnel Management (Parts 800—899) X Office of Community Services, Administration for Children and Families, Department of Health and Human Services (Parts 1000—1099) XI National Foundation on the Arts and the Humanities (Parts 1100—1199) XII Corporation for National and Community Service (Parts 1200— 1299) XIII Office of Human Development Services, Department of Health and Human Services (Parts 1300—1399) XVI Legal Services Corporation (Parts 1600—1699) XVII National Commission on Libraries and Information Science (Parts 1700—1799) XVIII Harry S. Truman Scholarship Foundation (Parts 1800—1899) XXI Commission on Fine Arts (Parts 2100—2199) XXII Christopher Columbus Quincentenary Jubilee Commission (Parts 2200—2299) XXIII Arctic Research Commission (Part 2301) XXIV James Madison Memorial Fellowship Foundation (Parts 2400— 2499) XXV Corporation for National and Community Service (Parts 2500— 2599)
Title 46—Shipping
I Coast Guard, Department of Transportation (Parts 1—199) II Maritime Administration, Department of Transportation (Parts 200—399) III Coast Guard (Great Lakes Pilotage), Department of Transpor- tation (Parts 400—499) IV Federal Maritime Commission (Parts 500—599)
548
VerDate 25
I Federal Communications Commission (Parts 0—199) II Office of Science and Technology Policy and National Security Council (Parts 200—299) III National Telecommunications and Information Administration, Department of Commerce (Parts 300—399)
Title 48—Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1—99) 2 Department of Defense (Parts 200—299) 3 Department of Health and Human Services (Parts 300—399) 4 Department of Agriculture (Parts 400—499) 5 General Services Administration (Parts 500—599) 6 Department of State (Parts 600—699) 7 United States Agency for International Development (Parts 700—799) 8 Department of Veterans Affairs (Parts 800—899) 9 Department of Energy (Parts 900—999) 10 Department of the Treasury (Parts 1000—1099) 12 Department of Transportation (Parts 1200—1299) 13 Department of Commerce (Parts 1300—1399) 14 Department of the Interior (Parts 1400—1499) 15 Environmental Protection Agency (Parts 1500—1599) 16 Office of Personnel Management Federal Employees Health Ben- efits Acquisition Regulation (Parts 1600—1699) 17 Office of Personnel Management (Parts 1700—1799) 18 National Aeronautics and Space Administration (Parts 1800— 1899) 19 United States Information Agency (Parts 1900—1999) 20 Nuclear Regulatory Commission (Parts 2000—2099) 21 Office of Personnel Management, Federal Employees Group Life Insurance Federal Acquisition Regulation (Parts 2100—2199) 23 Social Security Administration (Parts 2300—2399) 24 Department of Housing and Urban Development (Parts 2400— 2499) 25 National Science Foundation (Parts 2500—2599) 28 Department of Justice (Parts 2800—2899) 29 Department of Labor (Parts 2900—2999) 34 Department of Education Acquisition Regulation (Parts 3400— 3499) 35 Panama Canal Commission (Parts 3500—3599) 44 Federal Emergency Management Agency (Parts 4400—4499) 51 Department of the Army Acquisition Regulations (Parts 5100— 5199) 52 Department of the Navy Acquisition Regulations (Parts 5200— 5299)
549
VerDate 25
53 Department of the Air Force Federal Acquisition Regulation Supplement (Parts 5300—5399) 54 Defense Logistics Agency, Department of Defense (Part 5452) 57 African Development Foundation (Parts 5700—5799) 61 General Services Administration Board of Contract Appeals (Parts 6100—6199) 63 Department of Transportation Board of Contract Appeals (Parts 6300—6399) 99 Cost Accounting Standards Board, Office of Federal Procure- ment Policy, Office of Management and Budget (Parts 9900— 9999)
Title 49—Transportation
SUBTITLE A—Office of the Secretary of Transportation (Parts 1— 99) SUBTITLE B—Other Regulations Relating to Transportation I Research and Special Programs Administration, Department of Transportation (Parts 100—199) II Federal Railroad Administration, Department of Transportation (Parts 200—299) III Federal Highway Administration, Department of Transportation (Parts 300—399) IV Coast Guard, Department of Transportation (Parts 400—499) V National Highway Traffic Safety Administration, Department of Transportation (Parts 500—599) VI Federal Transit Administration, Department of Transportation (Parts 600—699) VII National Railroad Passenger Corporation (AMTRAK) (Parts 700—799) VIII National Transportation Safety Board (Parts 800—999) X Surface Transportation Board, Department of Transportation (Parts 1000—1399)
Title 50—Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of the Inte- rior (Parts 1—199) II National Marine Fisheries Service, National Oceanic and Atmos- pheric Administration, Department of Commerce (Parts 200— 299) III International Fishing and Related Activities (Parts 300—399) IV Joint Regulations (United States Fish and Wildlife Service, De- partment of the Interior and National Marine Fisheries Serv- ice, National Oceanic and Atmospheric Administration, De- partment of Commerce); Endangered Species Committee Reg- ulations (Parts 400—499) V Marine Mammal Commission (Parts 500—599)
550
VerDate 25
VI Fishery Conservation and Management, National Oceanic and Atmospheric Administration, Department of Commerce (Parts 600—699)
CFR Index and Finding Aids
Subject/Agency Index List of Agency Prepared Indexes Parallel Tables of Statutory Authorities and Rules List of CFR Titles, Chapters, Subchapters, and Parts Alphabetical List of Agencies Appearing in the CFR
551
VerDate 25
CFR Title, Subtitle or Agency Chapter Administrative Committee of the Federal Register 1, I Advanced Research Projects Agency 32, I Advisory Commission on Intergovernmental Relations 5, VII Advisory Committee on Federal Pay 5, IV Advisory Council on Historic Preservation 36, VIII African Development Foundation 22, XV Federal Acquisition Regulation 48, 57 Agency for International Development, United States 22, II Federal Acquisition Regulation 48, 7 Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Agriculture Department Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Animal and Plant Health Inspection Service 7, III; 9, I Chief Financial Officer, Office of 7, XXX Commodity Credit Corporation 7, XIV Cooperative State Research, Education, and Extension 7, XXXIV Service Economic Research Service 7, XXXVII Energy, Office of 7, XXIX Environmental Quality, Office of 7, XXXI Farm Service Agency 7, VII, XVIII Federal Acquisition Regulation 48, 4 Federal Crop Insurance Corporation 7, IV Food and Nutrition Service 7, II Food Safety and Inspection Service 9, III Foreign Agricultural Service 7, XV Forest Service 36, II Grain Inspection, Packers and Stockyards Administration 7, VIII; 9, II Information Resources Management, Office of 7, XXVII Inspector General, Office of 7, XXVI National Agricultural Library 7, XLI National Agricultural Statistics Service 7, XXXVI Natural Resources Conservation Service 7, VI Operations, Office of 7, XXVIII Rural Business-Cooperative Service 7, XVIII, XLII Rural Development Administration 7, XLII Rural Housing Service 7, XVIII, XXXV Rural Telephone Bank 7, XVI Rural Utilities Service 7, XVII, XVIII, XLII Secretary of Agriculture, Office of 7, Subtitle A Transportation, Office of 7, XXXIII World Agricultural Outlook Board 7, XXXVIII Air Force Department 32, VII Federal Acquisition Regulation Supplement 48, 53 Alcohol, Tobacco and Firearms, Bureau of 27, I AMTRAK 49, VII American Battle Monuments Commission 36, IV American Indians, Office of the Special Trustee 25, VII Animal and Plant Health Inspection Service 7, III; 9, I Appalachian Regional Commission 5, IX Architectural and Transportation Barriers Compliance Board 36, XI
553
VerDate 25
554
VerDate 25
555
VerDate 25
556
VerDate 25
557
VerDate 25
558
VerDate 25
559
VerDate 25
560
VerDate 25
561
VerDate 25
1986 32 CFR—Continued 51 FR Page 32 CFR 51 FR Chapter VI—Continued Page 762.34 (b) amended...... 22283 Chapter VI 762.50 (a) amended...... 22283 701.31—701.32 (Subpart C) 762.58 (b) amended...... 22283 Added ...... 42836 762.80 (a)(2) amended...... 22283 701.117 (n) added...... 11019 762.84 Amended...... 22283 706 Authority citation re- 762.86 Amended...... 22283 vised ...... 24 762.90 (a) amended...... 22283 706.2 Table One amended...... 24–25, 762.92 Introductory text, (g), and 5518, 28935, 28937, 28938, 29465, (h) amended...... 22283 29467, 30214, 32313, 35634 762.94 (a)(4) and (b) amended...... 22283 Table Two amended...... 29468, 33745, 762.96 (a) and (b) amended...... 22283 41478 765 Authority citation re- Table Three amended...... 5518, vised...... 22283, 35634 45467 Table Four amended...... 24–25, 765.3 Removed ...... 22936 17183, 28938, 28940, 32314 765.4 Removed ...... 22804 Table Five amended ...... 24, 3952, 765.5 Removed ...... 22804 9652, 11304, 11305, 12143, 12144, 765.12 Nomenclature change, 12516, 12850, 12851, 13217, 13218, (a)(1)(i), (ii), and flush text, and 16175, 16680–16682, 17182, 17183, (b)(1)(i) amended...... 22283 27536, 28934–28937, 28939, 28940, 765.14 Added ...... 45467 28941, 29465, 29466, 29468, 30493, 766 Authority citation re- 30494, 31103–31112, 32314, 32315, vised...... 22804 32316, 33746, 36401, 41478 766.5 (i)(1) removed; (i) (2) through 724.109 (a)(4) revised...... 44909 (5) redesignated as (i) (1) 728 Revised ...... 23972 through (4)...... 22804 732 Revised ...... 18779 766.12 (b)(4) removed; (b)(5) redes- 735 Added ...... 15321 ignated as (b)(4) ...... 22804 737 Removed...... 22282 742 Removed ...... 7013 754 Removed...... 19830 1987 762 Authority citation re- 32 CFR 52 FR vised...... 22283 Page 762.4 (b) amended ...... 22283 Chapter VI 762.6 Amended ...... 22283 701.100—701.116 (Subpart F) Re- 762.8 Amended ...... 22283 vised...... 11052 762.10 Amended...... 22283 701.116 (j) correctly added ...... 17295
563
VerDate 25
32 CFR—Continued 52 FR 32 CFR—Continued 52 FR Page Page Chapter VI—Continued Chapter VI—Continued 701.117—701.120 (Subpart G) Re- 751.24 (a)(1) introductory text, vised...... 11068 (v), (vi), (2), (3)(i), (5) and (6), 701.117 (o) added ...... 5535 (b) and (d) revised; (e) amend- 701.119 (g)(2) correctly added ...... 17295 ed ...... 25599 706.1 (a) and (b) revised ...... 4770 751.25 (b) revised ...... 25600 706.2 Table One amended...... 4771, 5102, 751.28 Revised ...... 25600 5104, 6547, 7136, 21001, 21681, 35237, 751.30 (a) through (d) and (e)(4) 42103, 47923 revised; (e) introductory text Table Two amended ...... 4770 amended...... 25600 Table Three amended...... 5282, 757 Authority citation re- 10748, 10749, 21002, 21681, 42104, vised...... 25600 47923 Footnotes removed...... 25601 Table Four amended ...... 5282, 757.2 (b)(2) and (c) revised ...... 25601 6547, 10748, 10749 757.3 (a) amended; (b), (c), (d), and Table Five amended ...... 4287, (f)(3) revised ...... 25601 4288, 4771, 5103, 5765, 8584, 10375, 757.8 Amended ...... 25601 13238, 13665, 21002, 21680, 21681, 757.13 Introductory text and (d) 23174, 23545, 23546, 35237, 38755, revised; (f) removed ...... 25601 42102, 42103, 46080, 47922 706.3 Table One amended ...... 4771, 35237 757.15 (a) (1) through (4) re- 728 Revised ...... 33718 vised...... 25601 732 Revised ...... 32297 757.16 (c) amended; (d) added ...... 25601 750 Authority citation revised; 763.4 (a) and (b) amended ...... 20074 footnotes removed...... 25595 763.5 (a) introductory text, (1), 750.3 (d) redesignated as (e); new and (2), (b), and (c) amend- (d) added ...... 25595 ed ...... 20074 750.4 (c) heading revised ...... 25596 (d) added ...... 45455 750.7 (a) (5) through (16) and (b) 770.31 (c) (1) and (2) amend- revised; (a) (17) and (18) ed ...... 20074 added...... 25596 750.8 (a) and (b) amended ...... 25596 1988 750.9 Revised ...... 25597 750.12 (b) amended ...... 25597 32 CFR 53 FR 750.13 (b) and (c) redesignated as Page (c) and (d); new (b) added; (c)(2) Chapter VI amended...... 25597 701 Authority citation re- 750.16 (c)(2) amended; (e) re- vised...... 52139 vised...... 25597 701.1—701.11 (Subpart A) Re- 750.21 (a) through (c) amend- vised...... 52139 ed ...... 25598 701.21—701.24 (Subpart B) Re- 750.23 Revised ...... 25598 vised...... 52149 750.24 (b) (2) and (3) revised ...... 25598 701.31—701.32 (Subpart C) Re- 750.32 (e)(2) amended...... 25598 vised...... 52152 750.52 (b) revised ...... 25598 701.40—701.48 (Subpart D) Re- 750.53 (c) amended...... 25598 vised...... 52154 751 Authority citation revised; 706.2 Table One amended...... 12515 footnotes removed...... 25598 Table Two amended...... 49319 751.2 Revised ...... 25598 Table Three amended ...... 12515, 25488, 751.3 (i)(3)(iii) amended...... 25599 49319, 51098 751.4 (u) added...... 25599 Table Four amended...... 12516, 51098 751.21 (f)(1)(ii) amended...... 25599 Table Five amended ...... 12516, 16874 751.22 (b) and (d) amended...... 25599 751.23 Introductory text amend- 25488, 30427, 40880, 45270, 49320 ed ...... 25599 706.3 Table One amended...... 12516
564
VerDate 11
565
VerDate 25
32 CFR—Continued 57 FR 32 CFR—Continued 59 FR Page Page Chapter VI—Continued Chapter VI—Continued 725 Revised; interim...... 2463 701.119 (f) introductory text re- 750 Revised ...... 4722 vised ...... 9928 751 Revised ...... 5055 706.2 Tables Four and Five 756 Revised ...... 4736 amended ...... 7217, 35033, 35850, 52910, 757 Revised ...... 5072 59162, 59163 Table Three amended ...... 22756, 27240 1993 Table Five amended ...... 27239, 32334, 32335 32 CFR 58 FR Tables Two and Five amended Page ...... 38366 Chapter VI Table Two amended...... 52909, 59162 706.2 Table One amended...... 25945, Tables One and Three amended 44133, 61808, 61810 ...... 52911 Table Two amended ...... 4335 Tables Three and Four amended Table Three amended...... 8694, ...... 53098 25945, 44133, 44134, 44456, 60383, 776 Added ...... 45214 60384, 61808, 61810 Table Four amended ...... 4334, 1995 8695, 25946, 50259, 50260, 51241 Table Five amended ...... 4334, 32 CFR 60 FR 4335, 11192, 25946, 28503, 28504, Page 36868, 50260, 51241, 58102, 58103, Chapter VI 61809, 64678 706.2 Tables Four and Five 725 Regulation at 57 FR 2463 con- amended ...... 3346, 22509, 22511, 27027, firmed ...... 53883 50101, 57933, 58236 Tables One and Two amended 1994 ...... 22505 Tables Two, Three, Four and 32 CFR 59 FR Five amended ...... 22506 Page Table Four amended ...... 22507, 22508, Chapter VI 27025, 54198, 56121, 57932, 65569 701 Nomenclature change ...... 29721 Tables Two and Five amended 701.3 (i) removed ...... 29721 ...... 22510, 27026, 52860 701.5 (b), (e)(2)(i) and (iii)(B) Tables One and Three amended amended...... 29721 ...... 22512, 53273 701.8 (k) removed; (l) through (p) Table Four corrected...... 31351 redesignated as (k) through (o); Table Three and Four amended (b) and new (k) revised...... 29721 ...... 50102 701.9 (j)(2) amended...... 29722 Table Five amended ...... 54199, 56237, 701.10 (c)(1), (2)(ii)(H) and (d)(2) 57934, 65570, 67059 amended; (c)(2)(ii)(I) added ...... 29722 706.3 Table One amended...... 22506 701.25 (b) through (j) revised; (k) through (s) added ...... 29722 1996 701.31 (d)(2), (f), (h)(1), (i)(5), (j)(1), (k)(1), (2) and (3) amended; 32 CFR 61 FR (g)(1), (3) and (m)(5) re- Page vised...... 29722 Chapter VI (k)(4), (l), (m)(1), (3), (4), (n) and 701.113 (d) and (g)(1) amend- (q) amended ...... 29723 ed...... 2917 701.51 (b) and (c) amended...... 29723 701.117 Amended...... 2917 701.61—701.67 (Subpart E) Re- 701.118 (a), (m) and (p) amend- vised...... 46760 ed...... 2917 701.100—701.115 (Subpart F) Re- 701.119 (b) amended ...... 2917 vised...... 55348 706.2 Tables One and Three 701.116—701.119 (Subpart G) Re- amended...... 9105, 9106 vised...... 55363 Table Two amended ...... 9107, 52880
566
VerDate 11
32 CFR—Continued 61 FR 32 CFR—Continued 62 FR Page Page Chapter VI—Continued Chapter VI—Continued Table Four amended ...... 9108, 14966, Tables Four and Five amended 36292, 48070, 52882, 60027 ...... 18274, 47945 Table Five amended ...9905, 14969, 67727 Table Four amended...... 23659 Tables One and Five amended 723 Revised ...... 8166 ...... 14967 Tables Three and Five amended ...... 14968 1998 Tables Four and Five amended (Regulations published from January 1, ...... 14970, 46378, 58009 1998, through July 1, 1998) Table Three amended ...... 35959 Table Five corrected ...... 36497 32 CFR 63 FR Page 1997 Chapter VI 701.118 (m) heading revised...... 25773 32 CFR 62 FR Page 706.2 Tables Two and Five amend- Chapter VI ed...... 9743, 31357 Tables One and Four amended 701.118 (h) removed; (i), (n) head- ...... 9744 ing and introductory text re- vised...... 15615 Table Five amended ...9745, 19656, 29613 (r) introductory text revised Tables Four and Five amended ...... 61914 ...... 13341, 24748 706.2 Table Five amended....11325, 19673, Table Four amended...... 24747 19935, 26743, 26744, 33359, 37719, 40450 Table Two amended...... 34811 Tables Two and Five amended 721 Removed ...... 3860 ...... 11326 Technical correction...... 4694 Tables One, Four and Five 722 Removed ...... 3860 amended ...... 18273 Technical correction...... 4694
Æ
567
VerDate 11