Under 18 U.S.C. 208(b) categories of financial interests may be made non-disqualifying for purposes of 18 U.S.C. 208(a) by a general regulation published in the Federal Register. Shares of a widely held, diversified mutual fund or regulated investment company have been exempted by a general regulation as being too remote or inconsequential to affect the integrity of Government personnel.

DoD employees should refer to the Office of Government Ethics (OGE) regulation, Standards of Ethical Conduct for Employees of the Executive Branch, 5 CFR part 2635, and the Department of Defense (DoD) regulation that supplements the OGE regulation, 5 CFR 3601.101, for standards of conduct provisions, including standards for gifts from outside sources, gifts between employees, conflicting financial interests, impartiality in performing official duties, seeking other employment, misuse of position, and outside activities.

DoD employees should refer to the OGE regulation, Financial Disclosure, Qualified Trusts, and Certificates of Divestiture for Executive Branch Employees, 5 CFR part 2634, for financial disclosure provisions.

DoD employees should refer to the OGE regulation, Limitations on Outside Employment and Prohibition of Honoraria; Confidential Reporting of Payments to Charities in Lieu of Honoraria, 5 CFR part 2636, for provisions on outside employment and honoraria.

DoD employees and former DoD employees should refer to the OGE regulation, Regulations Concerning Post-Employment Conflict of Interest, 5 CFR part 2637, for provisions on post-employment applicable to those who left DoD employment prior to January 1, 1991.

DoD employees should refer to the OGE regulation, Office of Government Ethics and Executive Agency Ethics Program Responsibilities, 5 CFR part 2638, for provisions establishing executive branch ethics programs, including ethics training programs.

This part reissues part 42 to update established policies, procedures, and restrictions governing interception of wire and oral communications and the use of pen registers and related devices for law enforcement purposes, both in the United States and abroad, in accordance with 47 U.S.C. 605 and 18 U.S.C. 2510-2520.

(a) The provisions of this part apply to the Office of the Secretary of Defense, the military departments, the Organization of the Joint Chiefs of Staff, the defense agencies, and the unified and specified commands (hereafter referred to collectively as “DoD components”).

(b) This part does not affect status of forces or other specific agreements that may otherwise limit implementation of its provisions in any particular geographical area abroad.

(a) The interception of wire and oral communications for law enforcement purposes is prohibited unless conducted in accordance with this part and applicable law.

(b) The only DoD components authorized to intercept wire and oral communications and conducts pen register operations under this part are the Departments of the Army, Navy, and Air Force. Within these components, authority to use this technique shall be limited to those offices specifically designated in writing by the head of the component.

(c) Interception of wire and oral communications is a special technique which shall not be considered as a substitute for normal investigative procedures and shall be authorized only in those circumstances where it is demonstrated that the information is necessary for a criminal investigation and cannot reasonably be obtained in some other, less intrusive manner.

(d) Nonconsensual interception of wire and oral communications is prohibited unless there exists probable cause to believe that:

(1) In the case of interceptions within the United States, a criminal offense listed in 18 U.S.C. 2516(1) has been, is being, or is about to be committed;

(2) In the case of interceptions abroad conducted pursuant to an order issued by a military judge under § 42.7(a)(1)(ii)(A), one of the following violations of the Uniform Code of Military Justice has been, is being, or is about to be committed by a person subject to the Uniform code of Military Justice under article 2, 10 U.S.C. 802:

(i) The offense of murder, kidnapping, gambling, robbery, bribery, extortion, espionage, sabotage, treason, fraud against the Government, or dealing in narcotic drugs, marihuana, or other dangerous drugs; or

(ii) Any other offense dangerous to life, limb, or property, and punishable by death or confinement for 1 year or more; or

(iii) Any conspiracy to commit any of the foregoing offenses.

(3) In the case of other interceptions abroad, one of the following offenses has been, is being, or is about to be committed:

(i) An offense listed in 18 U.S.C. 2516(1); or

(ii) Fraud against the Government or any other offense dangerous to life, limb, or property and punishable under title 18 of the U.S. Code by death or confinement for more than 1 year; or

(iii) Any conspiracy to commit any of the foregoing offenses.

(e) Consensual interceptions of wire and oral communications shall be undertaken only when at least one of the parties to the conversation has consented to the interception and when the investigation involves:

(1) A criminal offense punishable, under the United States Code or Uniform Code of Military Justice, by death or confinement for 1 year or more; or

(2) A telephone call involving obscenity, harassment, extortion, bribery, bomb threat, or threat of bodily harm that has been made to a person authorized to use the telephone of a subscriber-user on an installation, building, or portion thereof, under Department of Defense jurisdiction or control, and when the subscriber-user has also consented to the interception.

(f) The prohibitions and restrictions of this part apply regardless of the official use or dissemination of the intercepted information. Any questions as to whether the use of a particular device may involve prohibited wire or oral interception shall be submitted with supporting facts through channels to the general counsel of the Department of Defense for resolution.

(g) No otherwise privileged wire or oral communication intercepted in accordance with this part shall lose its privileged character.

Waivers of the requirements enunciated in this part will be authorized on a case-by-case basis only when directed in writing by the Secretary of Defense. Waivers will be authorized only under the most limited circumstances and when consistent with applicable law.

(a) The Department of Defense General counsel or a single designee, shall:

(1) Determine whether to approve or deny requests for authorization to conduct nonconsensual interceptions under this part (§ 42.7(a)(1) (i) and (ii)).

(2) Determine whether to seek Attorney General authorization for emergency nonconsensual interceptions (§ 42.7(a)(1)(iii)).

(3) In the absence of the Secretary of the military department concerned, or a designee, determine whether to approve or deny requests to conduct consensual interceptions (§ 42.7(a)(2)(i)).

(4) Provide overall policy guidance for the implementation of this part.

(b) The Assistant Secretary of Defense (Comptroller) (ASD(C)), or a designee, shall:

(1) In consultation with the DoD General Counsel, act for the Secretary of Defense to insure compliance with the provisions of this part.

(2) Receive, process, and transmit to the DoD General Counsel all requests from the heads of the DoD components, or their designees, for authority to conduct nonconsensual interception of wire and oral communications.

(3) Furnish to the Attorney General those reports required by § 42.7(f)(1) and provide a copy of such reports to the DoD General Counsel.

(4) Receive those reports required by § 42.7(f)(1) and provide a copy of such reports to the DoD General Counsel.

(c) The head of each DoD component or a designee shall insure compliance with the policies and procedures set forth or referenced in this part.

(d) The secretary of each military department, or a designee, shall:

(1) Determine whether to approve or deny requests to conduct consensual interceptions (§ 42.7(a)(2)(i)). This approval authority shall not be delegated to an official below the level of assistant secretary or assistant to the secretary of the military department.

(2) Review requests for nonconsensual interception of wire or oral communications (§ 42.7(a)(1)).

(3) Designate a control point of contact and so advise the DoD General Counsel and the ASD(C) for:

(i) Interception activities and related applications covered by this part.

(ii) Compilation of reports and forwarding other submissions to the ASD(C) as required by the provisions of this part.

(iii) Maintaining a file of information regarding all interceptions of wire and oral communications by any element of the Department.

(4) Furnish to the ASD(C) the reports required by § 42.7(f)(2).

(e) The judge advocate general of each military department shall assign military judges, certified in accordance with the provisions of article 26(b) of the Uniform Code of Military Justice, 10 U.S.C. 826(b):

(1) To receive applications for intercept authorization orders and to determine whether to issue such orders in accordance with § 42.7(a)(1)(ii)(A). The authorization of such military judges to issue intercept authorization orders shall be limited to interceptions occurring abroad and targeted against persons subject to the Uniform Code of Military Justice.

(2) To receive applications to conduct pen register operations and to issue orders authorizing such operations in accordance with § 42.7(b)(1). The authority of such military judges to issue orders authorizing pen register operations shall be limited to operations conducted on a military installation and targeted against persons subject to the Uniform Code of Military Justice.

(a) Abroad. Outside the United States. An interception takes place abroad when the interception device is located and operated outside the United States and the target of the interception is located outside the United States.

(b) Application for court order. A document containing specified information prepared for and forwarded to a judge of the U.S. district court or the U.S. court of appeals, or a military judge.

(c) Consensual interception. An interception of a wire or oral communication after verbal or written consent for the interception is given by one or more of the parties to the communication.

(d) Court order. An order issued by a judge of a U.S. district court or a U.S. court of appeals or by a military judge authorizing a wire or oral interception or a pen register operation.

(e) Electronic, mechanical, or other device. Any device or apparatus that can be used to intercept a wire or oral communication other than any telephone equipment furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and used by the subscriber or user in the ordinary course of its business or used by an investigative or law enforcement officer in the ordinary course of duty (18 U.S.C. 2510(5)).

(f) Interception. The aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device (18 U.S.C. 2510(4)). The term “contents” includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication (18 U.S.C. 2510(8)).

(g) Oral communication. Any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception, under circumstances justifying such expectation (18 U.S.C. 2510(2)).

(h) Pen register. A device connected to a telephone instrument or line that permits the recording of telephone numbers dialed from a particular telephone instrument. “Pen register” also includes decoder devices used to record the numbers dialed from a touch-tone telephone. “Pen register” does not include equipment used to record the numbers dialed for and duration of long-distance telephone calls when the equipment is used to make such records for an entire telephone system and for billing or communications management purposes.

(i) Telephone tracing. A technique or procedure to determine the origin, by telephone number and location, of a telephone call made to a known telephone instrument. The terms “lock-out” and “trapping” may also be used to describe this technique.

(j) United States. For the purposes of this part, the term “United States” includes the 50 States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

(k) United States person. For purposes of this part the term “U.S. person” means a United States citizen, an alien admitted to the United States for permanent residence, a corporation incorporated in the United States, an unincorporated association organized in the United States and substantially composed of United States citizens or aliens admitted to the United States for permanent residence.

(l) Wire communication. Any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications. 18 U.S.C. 2510(1).

(a) Procedures governing interception of wire and oral communications—(1) Nonconsensual interception—(i) Nonconsensual interception in the United States. When an interception is deemed necessary for a criminal investigation, the following procedures are applicable:

(A) The requesting component shall prepare and forward through channels a “request for authorization” to the Assistant Secretary of Defense (Comptroller), or an official designated by the ASD(C). This application shall be transmitted by expeditious means and protected to preclude unauthorized access or any danger to the officials or other persons cooperating in the case. Each request for authorization will contain the following information:

(1) The identity of the DoD investigative or law enforcement official making the application;

(2) A complete description of the facts and circumstances relied upon by the applicant to justify the intended interception, including:

(i) The particular offense that has been, is being, or is about to be committed;

(ii) A description of the nature and location of the facilities from which or the place where the communication is to be intercepted;

(iii) A description of the type of communication sought to be intercepted with a statement of the relevance of that communication to the investigation; and

(iv) The identity of the person, if known, committing the offense and whose communications are to be intercepted;

(3) A statement as to whether other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;

(4) An identification of the type of equipment to be used to make the interception;

(5) A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the interception will not terminate automatically when the described type of communication has been first obtained, a description of the facts establishing probable cause to believe that additional communications of the same type will occur thereafter;

(6) The procedures to minimize the acquisition, retention, and dissemination of information unrelated to the purpose of the interception;

(7) A complete statement of the facts concerning each previous application for approval of interceptions of wire or oral communications known to the applicant and involving any of the same persons, facilities or places specified in the application and the action taken thereon; and

(8) When the application is for an extension of an order, a statement setting forth the results thus far obtained from the interception, or an explanation of the failure to obtain such results.

(B) The ASD(C), or an official designated by the ASD(C), will recommend to the DoD General Counsel that the request be approved or disapproved. Approval or disapproval of all requests for authorization will be made in writing by the DoD General Counsel, or a single designee.

(C) If the request is approved by the DoD General Counsel, the official making the request will coordinate directly with an attorney from the Department of Justice or from a U.S. Attorney's office for preparation of documents necessary to obtain a court order in accordance with 18 U.S.C. 2518. These documents will be forwarded by the Department of Justice attorney to the Attorney General, or to the designated Assistant Attorney General, for approval in accordance with 18 U.S.C. 2516.

(D) Upon approval by the Attorney General, or the designated Assistant Attorney General, formal application for a court order will be made by the appropriate attorney from the Department of Justice, assisted by the appropriate military lawyer.

(ii) Nonconsensual interceptions abroad. Unless otherwise authorized by direction of the President or the Attorney General, the following procedures are applicable to interceptions for law enforement purposes when the interception takes place abroad and when a DoD component, or members thereof, conduct or participate in the interception; or when the interception takes place abroad, is targeted against a U.S. person, and is conducted pursuant to a request by a DoD component:

(A) When the target of the interception is a person subject to the Uniform Code of Military Justice under Article 2, U.S.C. 802.

(1) The request for authorization shall include the information required by paragraph (a)(1)(i)(A) of this section, and shall be forwarded through channels to the Assistant Secretary of Defense (Comptroller), or the ASD(C)'s, designee. The ASD(C), or a designee, shall recommend to the DoD General Counsel that the request be approved or disapproved. Approval or disapproval of all Requests for Authorization shall be made in writing by the DoD General Counsel, or a single designee.

(2) Upon written approval of the DoD General Counsel, the DoD investigative or law enforcement officer shall prepare a formal application for a court order in accordance with the procedures of 18 U.S.C. 2518(1). The application shall be submitted to a military judge assigned to consider such applications pursuant to § 42.5(e).

(3) Only military judges assigned by the Judge Advocate General of their service to receive applications for intercept authorization orders shall have the authority to issue such orders. The authority of military judges to issue intercept authorization orders shall be limited to interceptions conducted abroad and targeted against persons subject to the Uniform Code of Military Justice.

(i) A military judge shall be ineligible to issue an order authorizing an interception if, at the time of application, the judge (A) is involved in any investigation under Article 32 of the Uniform Code of Military Justice, 10 U.S.C. 832; or (B) is engaged in any other investigative or prosecutorial function in connection with any case; or if the judge has previously been involved in any investigative or prosecutorial activities in connection with the case for which the intercept authorization order is sought.

(ii) No military judge who has issued an order authorizing interceptions may act as the accuser, be a witness for the prosecution, or participate in any investigative or prosecutorial activities in the case for which the order was issued. A military judge who has issued an order authorizing interceptions is not disqualified from presiding over the trial in the same case.

(iii) A military judge otherwise qualified under § 42.7(a)(1)(ii)(C)(i) and (ii) enclosure shall not be disqualified from issuing orders authorizing interceptions because the judge is a member for a service different from that of the target of the interception or from that of the investigative or law enforcement officers applying for the order.

(4) The military judge may enter an ex parte order, as requested or as modified, authorizing or approving an interception of wire or oral communications if the judge determines on the basis of the facts submitted by the applicant that:

(i) There is probable cause to believe that a person subject to the Uniform Code of Military Justice is committing, has committed, or is about to commit a particular offense enumerated in § 42.3(d)(2);

(ii) There is probable cause to believe that particular communications concerning that offense will be obtained through such interception;

(iii) Normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;

(iv) There is probable cause to believe that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person; and

(v) The interception will not violate the relevant status of forces agreement or the applicable domestic law of the host nation.

(5) Each order authorizing an interception shall specify:

(i) The identity of the person, if known, whose communications are to be intercepted;

(ii) The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;

(iii) A particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;

(iv) The identity of the agency authorized to intercept the communications, and of the person authorizing the application; and

(v) The period of time during which such interception is authorized, including a statement as to whether the interception shall terminate automatically when the described communication has been first obtained.

(6) Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this part, and shall be terminated upon attainment of the authorized objective.

(7) No order entered by a military judge may authorize an interception for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than 60 days. Extensions of an order may be granted, but only upon application for an extension made in accordance with the procedures of 18 U.S.C. 2518(1), and after the military judge makes the findings required by paragraph (a)(1)(ii)(A)(4) of this section. The period of extension shall be no longer than is necessary to achieve the purpose for which it was granted and in no event for longer than 60 days.

(8) The contents of communications intercepted pursuant to an order issued by a military judge shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of such communications shall be done in such a way as will protect the recording from editing or other alterations. Custody of the recording shall be wherever required by the regulations promulgated under paragraph (e)(1) of this section and it shall not be destroyed except pursuant to paragraph (e)(4) of this section.

(9) The contents of a communication intercepted abroad, or evidence derived therefrom, shall be inadmissible in any court-martial proceeding, in any proceeding under Article 15 of the Uniform Code of Military Justice, 10 U.S.C. 815, or in any other proceeding if the:

(i) Communication was intercepted in violation of this part or applicable law;

(ii) Order of authorization under which it was intercepted is insufficient on its face; or

(iii) Interception was not made in conformity with the order of authorization.

(B) When the target of an interception conducted abroad is a person who is not subject to the Uniform Code of Military Justice:

(1) The request for authorization shall be prepared and forwarded for approval in accordance with the procedures in paragraph (a)(1)(i) (A) and (B) of this section.

(2) The DoD General Counsel shall determine whether to approve the request and what further approval is required by law to conduct the interception.

(iii) Emergency nonconsensual interceptions in the United States and abroad. If, in the judgment of the head of the DoD component concerned, or a designee, the emergency need for a nonconsensual interception precludes obtaining the advance written approval and court order required by paragraph (a)(1) (i) and (ii) of this section, the component head or designee shall notify the DoD General Counsel who shall determine whether to seek the authorization of the Attorney General for an emergency nonconsensual interception in accordance with the procedures of 18 U.S.C. 2518(7).

(iv) Time limits. Nonconsensual interceptions within the United States may be approved for a period not to exceed 30 days. Nonconsensual interceptions outside the United States may be approved for a period not to exceed 60 days. Renewal requests for specified periods of not more than 30 days each (60 days for interceptions outside the United States), may be submitted to the approving authority for consideration. The interception in all instances shall be terminated as soon as the desired information is obtained, or when the interception proves to be nonproductive.

(2) Consensual interceptions. (i) The following procedures are applicable to all consensual interceptions of oral or wire communications:

(A) When one of the parties to the conversation consents to an intended interception of a communication, the DoD investigative or law enforcement official shall prepare a request containing the following information:

(1) A description of the facts and circumstances requiring the intended interception, the means by which it would be conducted, the place in which it would be conducted, and its expected duration;

(2) The names of all the persons whose conversations are expected to be intercepted and their roles in the crime being investigated. When the name of the nonconsenting party or parties is not known at the time the request is made, the official making the request shall supply such information within 30 days after termination of the interception. If such information is not known at the end of this period, it shall be supplied whenever it is later discovered;

(3) A statement that in the judgment of the person making the request the interception is warranted in the interest of effective law enforcement.

(B) An application for a court interception order is not necessary in this situation. Written approval of the request shall be made by the Secretary of a military department, or a designee, or, in their absence, the DoD General Counsel. This approval authority shall not be delegated to an official below the level of Assistant Secretary or Assistant to the Secretary of a military department.

(C) The Secretaries of the military departments shall designate an official to act upon telephonic requests when emergency needs preclude advance written approval. A written record of such requests shall be made.

(ii) The following restrictions are applicable to all consensual interceptions of oral or wire communications:

(A) Within the United States, approval shall be granted for a period of no more than 30 days. Abroad, approval may be granted for 60 days. Renewal requests for specified periods of not more than 30 days each (60 days for interception outside the United States) may be submitted to the approving authority for consideration. The interception in all instances shall be terminated as soon as the desired information is obtained, or when the interception proves to be nonproductive.

(B) The authorization for consensual interception of communications shall define clearly the manner in which the interception is to be accomplished. A “consensual interception” shall not involve the installation of equipment in violation of the constitutionally protected rights of any nonconsenting person whose communications will be intercepted.

(b) Procedures governing the use of pen registers and similar devices or techniques. The procedures of this section apply to the use of pen registers, touch-tone telephone decoders, and similar devices. Unless otherwise authorized by direction of the President or the Attorney General, pen register and similar operations shall be conducted only upon probable cause and pursuant to a court order.

(1) Operations conducted on a military installation and targeted against persons subject to the Uniform Code of Military Justice. Except as provided in § 42.7(b)(3), when a pen register operation is conducted on a military installation, in the United States or abroad, and when the target of the operation is a person subject to the Uniform Code of Military Justice, the following procedures apply:

(i) The application for a court order authorizing the operation shall be made in writing upon oath or affirmation and shall be submitted to a military judge assigned by the Judge Advocates General, pursuant to paragraph (f)(5) of this section, to receive such applications. An application shall include the following information:

(A) The identity of the DoD investigative or law enforcement officer making the application;

(B) A complete statement of the facts and circumstances relied upon by the application to justify the applicant's belief that there exists probable cause to believe that the operation will produce evidence of a crime, including a description of the particular offense involved, a description of the nature and location of the facilities from which the intercepted information originates, and the identity of the person, if known, who has committed, is about to commit, or is committing the offense and who is the target of the operation;

(C) A statement of the period of time for which the operation is required to be maintained.

(ii) Subject to the limitations of paragraph (a)(1)(ii)(C) (i), (ii), and (iii) of this section, a military judge assigned to receive applications for orders authorizing operations covered by this subsection may enter an order authorizing the operation upon finding that the target of the operation is a person subject to the Uniform Code of Military Justice, that the operation will be conducted on a military installation, and that there exists probable cause to believe that the operation will produce evidence of a crime. Each order shall specify the:

(A) Identity of the person, if known, who is the target of the operation;

(B) Location of the facilities from which the intercepted information originates and of the facilities on which the operation will take place;

(C) Period of time during which such operation is authorized.

(iii) When the application is for an operation conducted abroad, the military judge may not authorize the operation if it would violate the relevant Status of Forces Agreement or the applicable domestic law of the host nation.

(2) Other pen register operations. (i) When the target of a pen register operation abroad is a person who is not subject to the Uniform Code of Military Justice:

(A) The application for authority to conduct a pen register operation shall include the information in paragraph (b)(1)(i) of this section and shall be forwarded to the DoD General Counsel.

(B) The DoD General Counsel shall determine whether to approve the request and what further approval is required by law to conduct the pen register operation.

(ii) Except as provided in paragraph (b)(3) of this section, all other pen register and similar operations in the United States shall be conducted pursuant to a search warrant (or other judicial order authorizing the operation) issued by a judge of competent jurisdiction.

(3) Pen register operations which include nonconsensual interceptions of wire communications. When an operation under this section is to be conducted in conjunction with a nonconsensual interception of a wire communication under § 42.7(a)(1), procedures of § 42.7(a)(1) shall apply to the entire operation.

(c) Procedures governing telephone tracing. When prior consent of one or more parties to a telephone tracing operation has been obtained, the use of telephone tracing equipment and techniques shall be authorized only after coordination with appropriate judge advocate personnel or other component legal counsel. The local military facility commander may approve consensual telephone tracing operations on military facilities. For use outside military jurisdiction, the local military commanders, in coordination with judge advocate personnel, shall coordinate with local civilian or host country authorities when appropriate. In all cases, use of this technique must comply with the provisions of DoD directive 5200.27.1

(d) Interception equipment—(1) Control of interception equipment. (i) DoD Components other than the military departments are not authorized to procure or maintain equipment primarily useful for the interception of wire and oral communications described in this part. The heads of military departments shall establish controls to insure that only the minimum quantity of interception equipment required to accomplish assigned missions is procured and retained in inventories.

(ii) Interception equipment shall be safeguarded to prevent unauthorized access or use, with appropriate inventory records to account for all equipment at all times. Storage shall be centralized to the maximum extent possible consistent with operational requirements. When equipment is withdrawn from storage a record shall be made as to the times of withdrawal and of its return to storage. Equipment should be returned to storage when not in actual use, except to the extent that returning the equipment would interfere with its proper utilization. The individual to whom the equipment is assigned shall account fully, in a written report, for the use made of the equipment during the time it was removed from storage. Copies of the completed inventories of equipment, the times of withdrawal and return and the written reports of the agents specifying the uses made of the equipment shall be retained for at least 10 years.

(2) Disposal of interception equipment. (i) Federal law prohibits the sale or possession of any device by any person who knows or has reason to know that “the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire or oral communications * * *.” Accordingly, disposal outside the Government of such interception equipment is prohibited.

(ii) If there is any question as to what purpose an item of equipment is primarily useful for, then the officials involved should, in the exercise of due caution, prohibit its sale pending referral to the DoD General Counsel for a determination as to the proper classification of such devices under the law.

(e) Records administration—(1) General. All recordings and records of information obtained through interception activities conducted under the provisions of this part shall be safeguarded to preclude unauthorized access, theft, or use. Both the interest of the Government and the rights of private individuals involved shall be considered in the development of safeguarding procedures. The Secretaries of the military departments shall promulgate regulations specifying storage and access requirements for applications, orders, recordings, and other rec-ords of information obtained through interception activities. These regulations shall include provisions for storage and access while the case is active and after the case has become inactive and the records have been transferred to a centralized facility. Copies of all issuances and revisions shall be provided to the DoD General Counsel and the ASD(C) as promulgated.

(2) Indexing—(i) Interceptions. The records of consensual and nonconsensual interceptions shall be prepared and maintained to provide for centralized, readily accessible records or indices that include the following:

(A) Names, citizenship, and other available identifying data for each reasonably identifiable person intercepted (intentionally or otherwise), whether a case subject or not. If available, the social security account number and the date and place of birth of the individuals intercepted and identified;

(B) The telephone numbers of radio telephone call signs involved in the interception;

(C) The case number or other identifier for the interception;

(D) The address of the location of the interception;

(E) The inclusive dates of the interception.

(ii) Denied interception applications. Records of all applications submitted to and disapproved by a Federal or military judge for authorization to conduct a nonconsensual interception of a wire or oral communication shall be prepared and maintained in a separate, centralized index which shall include the following information:

(A) Names and other available identifying data for each reasonably identifiable target of the interception applied for;

(B) The telephone numbers or radio telephone call signs involved in the application;

(C) The address of the location of the interception applied for;

(D) The case number or other identifier for the application; and

(E) A statement of the other facts concerning the application and the reason that the application was refused.

(3) Dissemination controls. (i) The index and records maintained pursuant to paragraph (e)(2)(ii) of this section, shall be used only as required to satisfy the requirements of 18 U.S.C. 2518(1)(e), paragraph (a)(1)(i)(A)(7), (a)(1)(ii) (A) and (B) (statement of prior applications) and (f) (1) and (2) of this section.

(ii) In all cases, access to information obtained by interception activities conducted under the provisions of this part shall be restricted to those individuals having a defined need-to-know clearly related to the performance of their duties.

(iii) The information may be disseminated outside the Department of Defense only when:

(A) Required for the purposes described in 18 U.S.C. 2517;

(B) Required by law (including the Privacy Act of 1974, as amended, and the Freedom of Information Act of 1967, as amended, or order of a Federal court;

(C) Requested by a committee of the Congress and approved for release by the DoD General Counsel; or

(D) Required by the provisions of Status of Forces or other international agreements.

(iv) Secretaries of the military departments shall promulgate regulations, policies and procedural controls and designate responsible officials for both internal and external dissemination of the information described above. Procedures shall include sufficient records reflecting dissemination of this information. Copies of all issuances and revisions for these purposes shall be provided the DoD General Counsel and the ASD(C) as promulgated.

(4) Retention and disposition of rec-ords. Records and recordings of interception shall be retained for 10 years after termination of the interception and then disposed of in accordance with component records retirement procedures. If the interception was conducted in the United States under the provisions of 18 U.S.C. 2516, the records may be destroyed only pursuant to order of the court involved.

(f) Reports—(1) By the Assistant Secretary of Defense (Comptroller). The ASD(C), or a designee, shall submit the following reports to the Attorney General:

(i) Quarterly. For the quarters ending in March, June, September, and December, to be submitted by the end of each following month, a report of all consensual interceptions of oral communications by DoD components in the United States and abroad. This report shall specify for each interception the means by which the interception was conducted, the place in which it was conducted, its duration, and the use made of the information acquired. This report shall also contain the names and positions of persons authorized to approve consensual interceptions of oral communications, including those persons authorized to approve emergency, telephonic requests.

(ii) Annually. (A) By January 31, a report of all nonconsensual interceptions of wire or oral communications conducted for investigative or law enforcement purposes abroad by DoD components during the preceding year and of all unsuccessful applications for orders to conduct such interceptions during the preceding year. This report shall contain the information required in 18 U.S.C. 2519(2).

(B) By July 31, an inventory of all DoD electronic or mechanical equipment primarily useful for interception of wire or oral communications.

(2) By the Secretaries of the military departments. The Secretaries of the military departments, or their designees, shall submit the following reports to the ASD(C):

(i) Quarterly. For the quarters ending in March, June, September, and December, to be received by the 15th day of each following month, a report of all interceptions of wire and oral communications, pen register operations, and unsuccessful applications for nonconsensual interceptions conducted by the military departments in the United States and abroad. This report shall include the information listed in § 42.8.

(ii) Annually. By July 15, a complete inventory of all devices in the DoD component that are primarily useful for interception of wire or oral communications or for operations covered by paragraph (b) of this section. This report shall include a statement that the amount of equipment is being maintained at the lowest level consistent with operational requirements.

(a) Consensual interceptions. (1) Identity of DoD component making this report.

(2) Indicate whether the report is a wire or oral interception operation and whether the interception included the use of a pen register. (If more than one operation is authorized, a separate entry should be made for each.)

(3) Purpose or objective of operation. Specify offense being investigated and included a brief synopsis of the case.

(4) Investigative case number or identifier for the operation.

(5) Location of the operation.

(6) Type of equipment used and method of installation.

(7) Identity of the performing organizational unit. (Indicate if the interception was conducted for a DoD component other than the component making the report or for a non-DoD activity.)

(8) Identity of DoD investigative or law enforcement officer who requested or applied for the interception.

(9) Approval authority and date of approval.

(10) Length and dates for which operation was approved.

(11) Actual date operation was initiated, and date terminated.

(12) If operation was extended, state name of authority approving extension and dates to which extended.

(13) State where tapes, transcripts, and notes are stored.

(14) Evaluation of results of operations, including the use made of the information in subsequent investigation or prosecution.

(15) The names and positions of persons authorized to approve consensual interceptions, including those persons authorized to approve emergency, telephonic requests.

(16) Indicate whether the interception took place in the United States or abroad.

(b) Nonconsensual interceptions in the United States. In addition to items in § 42.8(a) (1)-(14), include the following:

(1) Identity of court and judge who issued the intercept authorization order and date of order.

(2) Nature and frequency of incriminating communications intercepted (specify dates and approximate duration of each communication).

(3) Nature and frequency of other communications intercepted.

(4) Number of persons whose communications were intercepted. Indicate number of U.S. persons known to have been intercepted and whether such persons were targets or incidentals.

(c) Nonconsensual interceptions abroad. In addition to items in paragraphs (a) (1)-(14) and (b) (1)-(4) of this section, include the following:

(1) Number of persons located in the United States whose communications were intercepted.

(2) In the report for the last quarter of each calendar year, include:

(i) The number of arrests and trials resulting from each interception conducted during the year. Indicate the offense for each interception.

(ii) The number of convictions resulting from the interceptions conducted during the year and the offenses for which convictions were obtained.

(d) Pen register operations. Pen register operations conducted in conjunction with nonconsensual interceptions should be included in § 42.8 (a) and (b). For all other pen register operations include items (1)-(15) from § 42.8(a), items (1)-(4) from § 42.8(b), and indicate whether the operation was conducted in the United States or abroad.

(e) Unsuccessful applications for nonconsensual interception authorization orders. (1) Identity of applying organizational unit. (Indicate if the application was on behalf of a DoD component other than the component making the report or on behalf of a non-DoD activity.)

(2) Investigative case number or identifier for the application.

(3) Identity of applying DoD investigative or law enforcement officer.

(4) Approval authority and date of approval of DoD request.

(5) Identity of judge who denied the application and date of denial.

(6) Offense specified in the application.

(7) Whether the application was for a wire or oral interception order, and whether the application was for an interception in the United States or abroad.

(8) Purpose or object of the interception applied for. Include a brief synopsis of the case.

(9) If the application was for an extension, indicate the dates, duration, and results of the previous interception.

(10) Specific location of the interception applied for.

(11) Number of U.S. persons named as targets in the application.

(12) Reason why the application was denied.

This part:

(a) Consolidates into a single document parts 43 and 276 of this title and update DoD policies and procedures governing personal commercial solicitation and insurance sales on DoD installations.

(b) Continues the established annual DoD accreditation requirements for life insurance companies operating in overseas areas where neither Federal nor State consumer protection regulations apply.

(a) This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Organization of the Joint Chiefs of Staff (OJCS), the Unified Commands, and the Defense Agencies (hereafter referred to collectively as “DoD Components”). The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, Marine Corps, and Coast Guard.

(b) The provisions of this part do not apply to services furnished by commercial companies, such as deliveries of milk, laundry, and related residence services when such services are authorized by the DoD installation commander.

(c) Nothing in this part should be construed to preclude private, non-profit, tax-exempt organizations composed of active and retired members of the Military Services from holding membership meetings which do not involve commercial solicitation on DoD installations. Attendance at these meetings shall be voluntary and the time and place of such meetings are subject to the discretion of the installation commander or his or her designee.

Agent. An individual who receives remuneration as a salesperson or whose remuneration is dependent on volume of sales of a product or products.

Association. Any organization, whether or not the word “Association” appears in its title, composed of and serving exclusively members of the Military Services on active duty, in a Reserve status, in a retired status, and their dependents, which officers its members life insurance coverage, either as part of the membership dues, or as a separately purchased plan made available through an insurance carrier or the association as a self-insurer, or a combination of both.

DoD installation. Any Federally owned, leased, or operated base, reservation, post, camp, building, or other facility to which DoD personnel are assigned for duty, including barracks, transient housing, and family quarters.

DoD personnel. All active duty officers (commissioned and warrant) and enlisted members of the Military Services and all civilian employees, including nonappropriated fund employees and special Government employees of all offices, agencies, and departments carrying on functions on a Defense installation.

General agent. A person who has a legal contract to represent a company solely and exclusively.

Insurance carrier. An insurance company issuing insurance through an association or reinsuring or coinsuring such insurance.

Insurance product. A policy, annuity, or certificate of insurance issued by an insurer or evidence of insurance coverage issued by a self-insured association.

Insurer. Any company or association engaged in the business of selling insurance policies to DoD personnel.

Normal home enterprises. Sales or services which are customarily conducted in a domestic setting and do not compete with an installation's officially sanctioned commerce.

Securities. Mutual funds, stocks, bonds, or any product registered with the Securities and Exchange Commission except for any insurance or annuity product issued by a corporation subject to supervision by State insurance authorities.

Solicitation. The conduct of any private business, including the offering and sale of insurance on a military installation. Solicitation on installations is a privilege as distinguished from a right, and its control is a responsibility vested in the DoD installation commander.

It is the policy of the Department of Defense to safeguard and promote the welfare of DoD personnel as consumers by setting forth a uniform approach to the conduct of all personal commercial solicitation and sales to them by dealers and their agents.

(a) The Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)) shall be responsible for developing policies and procedures governing personal commercial solicitation activities conducted on DoD installations.

(b) The Heads of DoD Components, or their designees, shall assure implementation of this Directive and compliance with its provisions.

(a) General. (1) No person has authority to enter upon a DoD installation and transact personal commercial solicitation as a matter of rights. Personal commercial solicitation will be permitted only if the following requirements are met:

(i) The solicitor is duly licensed under applicable Federal, State, or municipal laws and has complied with installation regulations in accordance with paragraph (c) of this section.

(ii) Personal commercial solicitation is permitted by the local installation commander.

(iii) A specific appointment has been made with the individual concerned and conducted in family quarters or in other areas designated by the installation commander.

(2) Those seeking to transact personal commercial solicitation on overseas installations shall be required to observe, in addition to the above, the applicable laws of the host country and, upon demand, present documentary evidence to the installation commander, or designee, that the company they represent, and its agents, meet the licensing requirements of the host country.

(3) Organizations involved in sales are permitted to display literature on DoD installations in locations selected by the commander.

(b) Life insurance products and securities. (1) Life insurance products and securities offered and sold to DoD personnel must meet the prerequisites described in Appendix A.

(2) Insurers and their agents are authorized to solicit on DoD installations provided they are licensed under the insurance laws of the State in which the installation is located. In overseas areas, DoD Components shall limit this authorization to those insurers accredited under the provisions of Appendix B.

(3) The conduct of all insurance business on DoD installations shall be by specific appointment. When establishing the appointment, insurance agents must identify themselves to the prospective purchaser as an agent for a specific company.

(4) Installation commanders shall designate areas where interviews by appointment may be conducted. Invitations to conduct interviews shall be extended to all agents on an equitable basis. Where space and other considerations limit the number of agents using the interviewing area, the installation commander may develop and publish local policy consistent with this concept.

(5) Installation commanders shall make disinterested third-party counseling available to DoD personnel desiring counseling.

(6) In addition to the solicitation prohibitions contained in paragraph (d) of this section, DoD Components shall prohibit:

(i) DoD personnel from representing any insurer, or dealing directly or indirectly with any insurer or any recognized representative of any insurer on the installation, as an agent or in any official or business capacity with or without compensation.

(ii) The use of an agent as a participant in any Military Services-sponsored insurance education or orientation program.

(iii) The designation of any agent or the use by any agent of titles such as “Battalion Insurance Counselor,” “Unit Insurance Advisor,” “Servicemen's Group Life Insurance Conversion Consultant,” etc.

(iv) The assignment of desk space for interviews for other than a specific prearranged appointment. During such appointment, the agent shall not be permitted to display desk or other signs announcing his or her name or company affiliation.

(v) The use of the “Daily Bulletin” or any other notice, official or unofficial, announcing the presence of an agent and his or her availability.

(c) Supervision of on-base commercial activities. (1) All pertinent installation regulations shall be posted in a place easily accessible to those conducting personal commercial solicitation activities on the installation.

(2) When practicable, as determined by the installation commander, a copy of the applicable installation regulations shall be given to those conducting on-base commercial activities with the warning that any infractions of the regulations will result in the withdrawal of solicitation privileges.

(d) Prohibited practices. The following commercial solicitation practices shall be prohibited on all DoD installations:

(1) Solicitation of recruits, trainees, and transient personnel in a “mass” or “captive” audience.

(2) Making appointments with or soliciting military personnel who are in an “on-duty” status.

(3) Soliciting without appointment in areas utilized for the housing or processing of transient personnel, in barracks areas used as quarters, in unit areas, in family quarters areas, and in areas provided by installation commanders for interviews by appointment.

(4) Use of official identification cards by retired or reserve members of the Military Services to gain access to DoD installations for the purpose of soliciting.

(5) Procuring, or attempting to procure, or supplying roster listings of DoD personnel for purposes of commercial solicitation, except for releases granted in accordance with DoD Directive 5400.7.

(6) Offering unfair, improper, and deceptive inducements to purchase or trade.

(7) Using rebates to facilitate transactions or to eliminate competition.

(8) Using manipulative, deceptive, or fraudulent devices, schemes, or artifices, including misleading advertising and sales literature.

(9) Using oral or written representations to suggest or give the appearance that the Department of Defense sponsors or endorses any particular company, its agents, or the goods, services, and commodities it sells.

(10) Full-time DoD personnel making personal commercial solicitations or sales to DoD personnel who are junior in rank or grade as provided in DoD Directive 5500.7 1 .

(11) Entering into any unauthorized or restricted area.

(12) Using any portion of installation facilities, including quarters, as a showroom or store for the sale of goods or services, except as specifically authorized by DoD Directives 1330.9 2 and 1330.17 3 and DoD Instructions 1330.18 4 and 1000.15 5. This is not intended to preclude normal home enterprises, providing applicable State and local laws are complied with.

(13) Soliciting door to door.

(14) Advertising addresses or telephone numbers of commercial sales activities conducted on the installation, except for authorized activities conducted by members of military families residing in family housing.

(e) Denial and revocation of on-base solicitation. (1) The installation commander shall deny or revoke permission to a company and its agents to conduct commercial activities on the base if such action is in the best interests of the command. The grounds for taking this action shall include, but not be limited to, the following:

(i) Failure to meet the licensing and other regulatory requirements prescribed in paragraphs (a) and (b) of this section.

(ii) Commission of any of the practices prohibited in paragraphs (b)(6) and (d) of this section.

(iii) Substantiated complaints or adverse reports regarding quality of goods, services, and commodities and the manner in which they are offered for sale.

(iv) Knowing and willful violations of Pub. L. 90-321.

(v) Personal misconduct by a company's agent or representative while on the installation.

(vi) The possession of or any attempt to obtain supplies of allotment forms used by the Military Departments, or possession or use of facsimiles thereof.

(vii) Failure to incorporate and abide by the Standards of Fairness policies contained in DoD Directive 1344.9.6

(2) In withdrawing solicitation privileges, the commander shall determine whether to limit it to the agent alone or extend it to the company the agent represents. This decision shall be communicated to the agent and to the company the agent represents and shall be based on the circumstances of the particular case, including, among others, the nature of the violations, frequency of violations, the extent to which other agents of the company have engaged in such practices, and any other matters tending to show the company's culpability.

(i) Upon withdrawing solicitation privileges, the commander shall promptly inform the agent and the company the agent represents orally or in writing.

(ii) If the grounds for the action involve the eligibility of the agent or company to hold a State license or to meet other regulatory requirements, the appropriate authorities will be notified.

(iii) The commander shall afford the individual or company an opportunity to show cause why the action should not be taken. To “show cause” means an opportunity must be given for the grieved party to present facts on his or her behalf on an informal basis for the consideration of the installation commander.

(iv) If warranted, the commander shall recommend to the Military Department concerned that the action taken be extended to other DoD installations. If so approved, and when appropriate, the Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)), following consultation with the Military Department concerned, shall order the action extended to other Military Departments.

(v) All denials or withdrawals of privileges will be for a set period of time, at the end of which the individual may reapply for permission to solicit through the Military Department originally imposing the restriction. Denial or withdrawal of soliciting privileges may or may not be continued, as warranted.

(vi) When such denials or withdrawals are lifted, the Office of the ASD(FM&P) shall be notified for parallel action if the same denial or withdrawal has been extended to other Military Departments.

(vii) The commanding officer may, if circumstances dictate, make immediate suspensions of solicitation privileges for a period of 30 days while an investigation is conducted. Exceptions to this amount of time must be approved by the Military Department concerned.

(3) Upon receipt of the information outlined above, the Secretaries of the Military Departments may direct the Armed Forces Disciplinary Control Boards in all geographical areas in which the grounds for action have occurred to consider the charges and take appropriate action.

(f) Advertising policies. (1) The Department of Defense expects voluntary observance of the highest business ethics both by commercial enterprises soliciting DoD personnel through advertisements in unofficial military publications, and by the publishers of those publications in describing goods, services, and commodities, and the terms of the sale (including guarantees, warranties, and the like).

(2) The advertising of credit terms shall conform to the provisions of Pub. L. 90-321 as implemented by Regulation Z.

(g) Educational programs. (1) The Military Departments shall develop and disseminate information and education programs for members of the Military Services on how to conduct their personal commercial affairs, including such subjects as the Truth-in-Lending Act, insurance, Government benefits, savings, and budgeting. The services of representatives of credit unions, banks, and those nonprofit military associations (provided such associations are not underwritten by a commercial insurance company) approved by the Military Departments may be used for this purpose. Under no circumstances shall commercial agents, including representatives of loan, finance, insurance or investment companies, be used for this purpose. Educational materials prepared or presented by outside organizations expert in this field may, with appropriate disclaimers and permission, be adapted or used if approved by the Military Department concerned. Presentations by approved organizations shall only be conducted at the express request of the installation commander.

(2) The Military Departments shall also make qualified personnel and facilities available for individual counseling on loans and consumer credit transactions in order to encourage thrift and financial responsibility and promote a better understanding of the wise use of credit, as prescribed in DoD Directive 1344.9.7

(3) Military members shall be encouraged to seek advice from a legal assistance officer or their own lawyer before making a substantial loan or credit commitment.

(4) Each Military Department shall provide advice and guidance to military personnel who have a complaint under Pub. L. 90-321 or who allege a criminal violation of its provisions, including referral to the appropriate regulatory agency for processing of the complaint.

This part updates and clarifies DoD policy, procedures, and responsibilities governing the screening of Ready Reservists, consistent with title 10 U.S.C. 269, 271, 272, 652, 672, 673, 674, 685, and 1005 and E.O. 11190.

This part applies to the Office of the Secretary of Defense and the Military Departments (including their reserve components). The term “Military Services,” as used herein, refers to the Army, the Navy, the Air Force, the Marine Corps, and the Coast Guard (by agreement with the Department of Transportation). Reserve components include the Army National Guard, the Army Reserve, the Naval Reserve, the Marine Corps Reserve, the Air National Guard, the Air Force Reserve, and the Coast Guard Reserve.

(a) Defense support industry. Any business or corporation so determined by FEMA.

(b) Extreme community hardship. A situation that, because a reservist is mobilized, may have a substantially adverse effect on the health, safety, or welfare of the community. Any request for a determination of such hardship shall be made by the reservist and must be supported by documentation as required by the Secretary of the Military Department concerned.

(c) Extreme personal hardship. An adverse impact upon a reservist's dependents resulting from his or her mobilization. Any request for a determination of such hardship shall be made by the reservist and must be supported by documentation as required by the Secretary of the Military Department concerned.

(d) Key employee. Any Federal employee occupying a key position.

(e) Key position. A Federal position that cannot be vacated during a national emergency or mobilization without seriously impairing the capability of the parent Federal agency or office to function effectively. There are three categories of Federal key positions. The first two categories are, by definition, key positions. Only the final category requires a case-by-case determination and designation:

(1) The Vice President of the United States or any official specified in the order of presidential succession as set forth in 3 U.S.C. 19.

(2) Members of Congress, heads of Federal agencies appointed by the President with the consent of the Senate, and the Federal judiciary (District, Circuit, and Supreme Court judges and justices only; all other positions within the Federal judiciary shall be considered under the provisions of paragraph (e)(3) of this section). For the purposes of the definition contained in this paragraph, the terms “heads of Federal agencies” does not include any person appointed by the President with the consent of the Senate to a Federal agency as a member of a multimember board or commission. Positions occupied by such persons may be designated as key positions only by the application of the criteria set forth in § 44.5(b)(2) of this part.

(3) Other Federal positions determined by Federal agency heads, or their designees, to be key positions in accordance with the guidelines specified in § 44.5(b)(2) of this part.

(f) Ready Reserve. Units and individual reservists liable for active duty as outlined in 10 U.S.C. 672 and 673.

(g) Selected Reserve. Part of the Ready Reserve of each reserve component consisting of units and individuals who participate actively in paid training periods and serve on paid active duty for training each year.

(h) Standby Reserve. Units or members of the reserve components, other than those in the Ready Reserve or Retired Reserve, who are liable for active duty as provided in sections 672 and 674 of title 10, U.S.C.

It is DoD policy that members of the Selected Reserve and other Ready Reservists who are not on active duty shall be screened at least annually to provide a Ready Reserve force composed of members who:

(a) Meet Military Service wartime standards of mental, moral, professional, and physical fitness.

(b) Possess the military qualifications required in the various ranks, grades, ratings, and specialties.

(c) Are available immediately for active duty during a mobilization (or during a war or national emergency or in response to a presidential order to augment the active forces for an operational mission).

(a) Reserve component screening activities. The following general procedures shall be followed to ensure the immediate availability of a Ready Reserve force:

(1) Annual screening. All Ready Reservists shall be screened at least annually to ensure their availability. Upon mobilization, all screening activity ceases, and all those remaining in the Ready Reserve shall be considered immediately available for active duty service.

(2) Maintaining current data. The development and maintenance of current information pertaining to the mobilization availability of Ready Reservists shall be the responsibility of the Secretary of the Military Department concerned.

(3) Civilian employment. After a mobilization is ordered, no deferment, delay, or exemption from mobilization will be granted to Ready Reservists because of their civilian employment.

(4) Retention in the Ready Reserve. All Ready Reservists shall be retained in the Ready reserve for the entire period of their statutory obligation or voluntary contract. Exceptions to this policy are made in this part or may be made by the Secretaries of the Military Departments (10 U.S.C. 269).

(5) Transfer of National Guard members to the Standby Reserve. In accordance with section 269(g) of title 10, U.S.C., a member of the Army National Guard or the Air National Guard may be transferred to the Standby Reserve only with the consent of the governor or other appropriate authority of the State, commonwealth, or territory concerned (including the District of Columbia).

(6) Transfer from the Standby Reserve to the Ready Reserve. Under section 272 of title 10, U.S.C., any eligible member of the Standby Reserve may be transferred back to the Ready Reserve when the reason for the member's transfer to the Standby Reserve no longer exists (32 CFR part 100).

(7) Extreme hardship. The Secretaries of the Military Departments shall screen extreme hardship cases (section 271a(5) of title 10, U.S.C.). Ready Reservists whose immediate recall to active duty during an emergency would create an extreme personal or community hardship shall be transferred to the Standby Reserve or the Retired Reserve or shall be discharged, as appropriate.

(8) Miscellaneous screening requirements. Ready Reservists identified in the following categories shall be processed as follows:

(i) Civilian employment restrictions. Ready Reservists who are also DoD civilian employees may not hold a mobilization assignment to the same positions that they fill as civilian employees. These Ready Reservists shall be reassigned or transferred, as appropriate. Reserve component unit civilian technicians, as members of reserve units, are excluded from this provision.

(ii) Theological students. Ready Reservists who are preparing for the ministry in an accredited theological or divinity school cannot be involuntarily called to active duty or required to participate in inactive duty training (10 U.S.C. 685). Accordingly, such Ready Reservists (other than those participating in a military Chaplain Candidate or Theological Student Program) shall be transferred to the Standby Reserve (active status) for the duration of their ministerial studies at accredited theological or divinity schools. Ready Reservists participating in a military Chaplain Candidate or Theological Student Program may continue their Ready Reserve affiliation and engage in active duty and inactive duty training.

(iii) Health care professionals. Ready Reservists may not be transferred from the Ready Reserve solely because they are students, interns, residents, or fellows in the health care professions. Upon mobilization, they either shall be deferred or shall be mobilized in a student, intern, resident, or fellow status until qualified in the appropriate military specialty as prescribed by the Military Department Secretaries (DoD Directive 1215.4).

(9) Availability determinations. The Secretaries of the Military Departments shall make determinations for mobilization availability on a case-by-case basis, consistent with this part, and not by class or group determinations.

(10) Removal determinations. Under this part, the Secretaries of the Military Departments shall review recommendations for removal of employees from the Ready Reserve submitted by employers and shall take appropriate action.

(b) Screening activities by employers of Ready Reservists. In addition to the Ready Reserve screening activities prescribed in this part to be conducted by the Military Departments, employers of Ready Reservists also have certain screening responsibilities under the law.

(1) Nonfederal employers. Under 44 CFR part 333, nonfederal employers of Ready Reservists, particularly in the fields of public health and safety and defense support industries, are encouraged to adopt personnel management procedures designed to preclude conflicts between the emergency manpower needs of civilian activities and the military during a mobilization. Employers also are encouraged to use the Federal key position guidelines contained herein for making their own key position designations and, when applicable, for recommending key employees for removal from the Ready Reserve.

(2) Federal employers. Federal Preparedness Circular (FPC) 9 promulgated policy for Ready Reserve screening activities that shall be accomplished by Federal sector employers. To ensure that Federal employees essential to the continuity of the Federal government are not retained as members of the Ready Reserve, the following procedures shall apply:

(i) Key positions. Some Federal employees occupy positions that cannot be vacated during a national emergency or mobilization without seriously impairing the capability of their agency to function effectively. Because of the essential nature of these positions, the Federal agency head, or designee, concerned shall designate such positions as key positions and shall require that they not be filled by Ready Reservists to preclude such positions from being vacated during a mobilization. The Military Department Secretaries shall transfer Ready Reservists occupying key positions to the Standby Reserve or the Retired Reserve or shall discharge them, as appropriate, under 10 U.S.C. 271(b). However, reserve officers with a remaining military service obligation at the time of their removal from the Ready Reserve may be transferred only to the Standby Reserve, Active Status (section 1005 of title 10, U.S.C.).

(ii) Key position designation guidelines. In determining whether or not a position should be designated as a key position, the following questions should be considered by the Federal agency concerned:

(A) Can the position be filled in a reasonable time after mobilization?

(B) Does the position require technical or managerial skills that are possessed uniquely by the incumbent imployee?

(C) Is the position associated directly with defense mobilization?

(D) Does the position include a mobilization or relocation assignment in an agency having emergency functions as designated by E.O. 11490?

(E) Is the position directly associated with industrial or manpower mobilization as designated in E.O. 11490 and E.O. 10480?

(F) Are there other factors related to national defense, health, or safety that would make the incumbent of the position unavailable for mobilization?

(c) Removal Recommendations. All employers who determine that a Ready Reservist is a key employee, in accordance with the guidelines contained in this part, promptly should report that determination to the cognizant reserve. The letter format shown in Appendix A should be used for such recommendations and should be mailed to the cognizant reserve personnel center listed in Appendix B. All the information shown in the letter format should be provided so the reserve personnel center can assess properly the matter and take appropriate action.

(d) Resolution of conflicting manpower needs. In accordance with 44 CFR part 333, the Federal Emergency Management Agency (FEMA) has the authority to adjudicate, before mobilization, conflicts between the mobilization manpower needs of the civilian sector and the military that the Ready Reserve screening process has identified but has not resolved.

(e) Individual responsibilities of Ready Reservists. (1) Each Ready Reservist who is not a member of the Selected Reserve is obligated to notify the Secretary of the Military Department concerned of any change of address, marital status, number of dependents, or civilian employment and any other change that would prevent the member from meeting mobilization standards prescribed by the Military Service concerned (10 U.S.C. 652).

(2) All Ready Reservists shall inform their employers of their Reserve military obligation.

(a) The Assistant Secretary of Defense (Reserve Affairs) (ASD(RA)) shall manage and control the overall Ready Reserve screening program in accordance with section 271 of title 10, U.S.C., E.O. 11190, and House Appropriations Committee Report 95-451.

(b) The Secretaries of the Military Departments shall:

(1) Screen, at least annually, all Ready Reservists under their jurisdiction to ensure their immediate availability for active duty.

(2) Ensure that personnel records systems incorporate information on any factors that limit the mobilization availability of a Ready Reservist.

(3) Ensure that all Ready Reservists have a favorably completed National Agency Check (NAC) or Entrance National Agency Check (ENTNAC) on file.

(4) Ensure that Ready Reservists not on active duty are examined as to physical fitness in accordance with DoD Directive 1205.9.

(5) Process members of the Ready Reserve who do not participate satisfactorily in accordance with parts 100, 101, and 115 of this title.

(6) Transfer Ready Reservists identified as occupying key positions to the Standby Reserve or the Retired Reserve or discharge them, as appropriate.

(7) After making a removal determination in response to a petition for such action, promptly transmit the results of that determination to the Ready Reservist concerned and his or her employer.

(a) The provisions of this part apply to the Office of the Secretary of Defense, the Military Services, the Joint Staff, and the Defense Agencies (hereafter referred to as “DoD Components”). The term “Military Services,” as used here, refers to the Army, Navy, the Air Force, the Marine Corps and, by agreement with the Department of Transportation, to the Coast Guard.

(b) Its provisions include procedures on the preparation and distribution of DD Forms 214, 214WS, 215 (Appendices A, B, and C) which record and report the transfer or separation of military personnel from a period of active duty. (NOTE: Computer-generated formats are acceptable substitutes provided Assistant Secretary of Defense (Force Management and Personnel) approval is obtained.) DD Forms 214 and 215 (or their substitutes) will provide:

(1) The Military Services with a source of information relating to military personnel for administrative purposes, and for making determinations of eligibility for enlistment or reenlistment.

(2) The Service member with a brief, clear-cut record of the member's active service with the Armed Forces at the time of transfer, release, or discharge, or when the member changes status or component while on active duty.

(3) Appropriate governmental agencies with an authoritative source of information which they require in the administration of Federal and State laws applying to personnel who have been discharged, otherwise released, or transferred to a Reserve component while on active duty.

(c) Its provisions include procedures on the control and distribution of all lists of SPDs.

(a) Administrative issuance or reissuance of DD Forms 214 and 215.

(1) The DD Form 214 will normally be issued by the command from which the member was separated. In those instances where a DD Form 214 was not issued, the Services concerned may establish procedures for administrative issuance.

(2) The DD Form 214, once issued, will not be reissued except:

(i) When directed by appropriate appellate authority, Executive Order, or by the Secretary concerned.

(ii) When it is determined by the Service concerned that the original DD Form 214 cannot be properly corrected by issuance of a DD Form 215 or if the correction would require issuance of more than two DD Forms 215.

(iii) When two DD Forms 215 have been issued and an additional correction is required.

(3) Whenever a DD Form 214 is administratively issued or reissued, an appropriate entry stating that fact and the date of such action will be made in Block 18, Remarks, of the DD Form 214 unless the appellate authority, Executive Order, or Secretarial directive specifies otherwise.

(b) The Military Services will ensure that every member (except as limited in paragraph (b)(2) of this section and excluding those listed in paragraph (c) of this section being separated from the Military Services is given a completed DD Form 214 describing relevant data regarding the member's service, and the circumstances of termination. DD Form 214 may also be issued under other circumstances prescribed by the Military Service concerned. A continuation sheet, if required, will be bond paper, and will reference: The DD Form 214 being continued; information from blocks 1 through 4; the appropriate block(s) being continued; the member's signature, date; and the authorizing official's signature. DD Forms 214 are not intended to have any legal effect on termination of the member's service.

(1) Release or discharge from active service. (i) The original of DD Form 214 showing separation from a period of active service with a Military Service, including release from a status that is legally determined to be void, will be physically delivered to the separate prior to departure from the separation activity on the effective date of separation; or on the date authorized travel time commences.

(A) Copy No. 4, containing the statutory or regulatory authority, reentry code, SPD code, and narrative reason for separation also will be physically delivered to the separatee prior to departure, if he/she so requested by initiating Block 30, Member Requests Copy 4.

(B) Remaining copies of DD Form 214 will be distributed on the day following the effective date of separation.

(ii) When separation is effected under emergency conditions which preclude physical delivery, or when the recipient departs in advance of normal departure time (e.g., on leave in conjunction with retirement; or at home awaiting separation for disability), the original DD Form 214 will be mailed to the recipient on the effective date of separation.

(iii) If the separation activity is unable to complete all items on the DD Form 214, the form will be prepared as completely as possible and delivered to the separatee. The separatee will be advised that a DD Form 215 will be issued by the Military Service concerned when the missing information becomes available; and that it will not be necessary for the separatee to request a DD Form 215 for such information.

(iv) If an optical character recognition format is utilized by a Military Service, the first carbon copy of the document will be physically delivered or mailed to the separatee as prescribed in paragraphs (b) (i) through (iii) of this section.

(2) Release from active duty for training, full-time training duty, or active duty for special work. Personnel being separated from a period of active duty for training, full-time training duty, or active duty for special work will be furnished a DD Form 214 when they have served 90 days or more, or when required by the Secretary concerned for shorter periods. Personnel shall be furnished a DD Form 214 upon separation for cause or for physical disability regardless of the length of time served on active duty.

(3) Continuing on active duty. Members who change their status or component, as outlined below, while they are serving on active duty will be provided a completed DD form 214 upon:

(i) Discharge for immediate enlistment or reenlistment (optional—at the discretion of the Military Services). However, Military Services not providing the DD Form 214 will furnish the member a DD Form 256, “Honorable Discharge Certificate,” and will issue instructions requiring those military offices which maintain a member's records to provide necessary Service data to the member for application to appropriate civilian individuals, groups, and governmental agencies. Such data will include Service component, entry data and grades.

(ii) Termination of enlisted status to accept an appointment to warrant or commissioned officer grade.

(iii) Termination of a temporary appointment to accept a permanent warrant or commission in the Regular or Reserve components of the Armed Forces.

(iv) Termination of an officer appointment in one of the Military Services to accept appointment in another Service.

(c) DD Form 214 need not be prepared for: (1) Personnel found disqualified upon reporting for active duty and who do not enter actively upon duties in accordance with orders.

(2) Personnel whose active duty, active duty for training, full-time training duty or active duty for special work is terminated by death.

(3) Personnel being removed from the Temporary Disability Retired List.

(4) Enlisted personnel receiving temporary appointments to warrant or commissioned officer grades.

(5) Personnel whose temporary warrant or commissioned officer status is terminated and who remain on active duty to complete an enlistment.

(6) Personnel who terminate their Reserve component status to integrate into a Regular component.

(7) Personnel separated or discharged who have been furnished a prior edition of this form, unless that form is in need of reissuance for some other reason.

(d) Preparation. The Military Departments will issue instructions governing the preparation of DD Form 214, consistent with the following:

(1) DD Form 214 is an important record of service which must be prepared accurately and completely. Any unavoidable corrections and changes made in the unshaded areas of the form during preparation shall be neat, legible and initialed on all copies by the authenticating official. The recipient will be informed that making any unauthorized change or alteration of the form will render it void.

(2) Since DD Form 214 is often used by civilian personnel, abbreviations should be avoided.

(3) Copies of DD Form 214 transmitted to various governmental agencies shall be legible, especially those provided to the Veterans Administration (Department of Veterans Affairs, effective March 15, 1989, in accordance with section 18(a), Public Law 100-527 and the Department of Labor).

(4) The authority for a member's transfer or discharge will be cited by reference to the appropriate Military Service regulation, instruction, or manual, followed by the appropriate separation program designator on copies 2, 4, 7, and 8 only. A narrative description to identify the reason for transfer or separation will not be used on copy 1.

(5) To assist the former Service member in employment placement and job counseling, formal inservice training courses successfully completed during the period covered by the form will be listed in Block 14, Military Education; e.g., medical, dental, electronics, supply, administration, personnel or heavy equipment operations. Training courses for combat skills will not be listed. See 1978 Guide to the Evaluation of Educational Experiences in the Armed Services for commonly accepted course titles and abbreviations.

(6) For the purpose of reemployment rights (DoD Directive 1205.12) 1 ) all extensions of service, except those under 10 U.S.C. 972, are considered to be at the request and for the convenience of the Government. In these cases, Block 18 of DD Form 214 will be annotated to indicate “Extension of service was at the request and for the convenience of the Government.”

(7) When one or more of the data items on the DD Form 214 are not available and the document is issued to the separatee, the applicable block(s) will be annotated “See Remarks.” In such cases, Block 18 will contain the entry “DD Form 215 will be issued to provide missing information.” When appropriate, Block 18 will also reflect the amount of disability pay, and the inclusive dates of any nonpay/excess leave days.

(8) The authorizing official (E-7, GS-7 or above) will sign the original in ink ensuring that the signature is legible on all carbon copies. If not, a second signature may be necessary on a subsequent carbon copy. The authorized official shall be an E-7, GS-7, or higher grade, except that the Service concerned may authorize chiefs of installation separation activities (E-5, GS-5, or above) to serve in this capacity if designated in writing by the responsible commander and/or director (0-4, or above).

(9) The following are the only authorized entries in Block 24, Character of Service, as appropriate: “Honorable,” “Under Honorable Conditions (General),” “Under Other Than Honorable Conditions,” “Bad Conduct,” “Dishonorable,” or “Uncharacterized.” When a discharge has been upgraded, the DD Form 214 will be annotated on copies 2 through 8 in Block 18 to indicate the character of service has been upgraded; the date the application for upgrade was made; and the effective date of the corrective action.

(10) The date entered in Block 12.a. shall be the date of enlistment for the earliest period of continuous active service for which a DD Form 214 was not previously issued. For members who have previously reenlisted without being issued a DD Form 214, and who are being separated with any discharge characterization except “Honorable,” the following statement shall appear as the first entry in Block 18., “Remarks,” on the DD Form 214: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM (applicable date) UNTIL (applicable date).” The “from” date shall be the date of initial entry into active duty, or the first day of service for which a DD Form 214 was not previously issued, as applicable; the “until” date shall be the date before commencement of the current enlistment.

(11) For Service members retiring from active duty enter in Block 18., “Subject to active duty recall by Service Secretary.”

(12) For Service members being transferred to the Individual Ready Reserve, enter in Block 18., “Subject to active duty recall and/or annual screening.”

(e) Distribution. The Military Services will prescribe procedures governing the distribution of copies of the DD Forms 214 and 215, consistent with their internal requirements, and the following:

(1) DD Form 214—(i) Copy No. 1 (original). To the member.

(ii) Copy No. 2. To be used as the Military Services’ record copy.

(iii) Copy No. 3. To the Veterans Administration (Department of Veterans Affairs, effective March 15, 1989, in accordance with section 18(a), Data Processing Center (214), 1614 E. Woodword Street, Austin, Texas 78772. A reproduced copy will also be provided to the hospital with the medical records if the individual is transferred to a VA hospital. If the individual completes VA Form 21-5267, “Veterans Application for Compensation or Pension,” include a copy of the DD Form 214 with medical records forwarded to the VA regional office having jurisdiction over the member's permanent address. When an individual is in Service and enlisting or reenlisting in an active duty status or otherwise continuing on active duty in another status, copy No. 3 will not be forwarded to the VA.

(iv) Copy No. 4. To the member, if the member so requested by having initialed Block 30. If the member does not request this copy, it may be retained in the master military personnel record, to be available in case the member requests a copy later.

(v) Copy No. 5. To Louisiana UCX/UCFE, Claims Control Center, Louisiana Department of Labor, P.O. Box 94246, Capitol Station, Baton Rouge, Louisiana 70804-9246.

(vi) Copy No. 6. To the appropriate State Director of Veterans Affairs (see enclosure 4), if the member so requested by having checked “Yes” in Block 20, “Member Requests Copy Be Sent to Director of Veterans Affairs.” The member must specify the State. If the member does not request the copy be mailed, it may be utilized as prescribed by the Military Service concerned.

(vii) Copies No. 7 and 8. To be distributed in accordance with regulations issued by the Military Service concerned.

(viii) Additional Copy Requirements. Discharged Alien Deserters. Provide one reproduced copy of Copy No. 1 to the U.S. Department of State, Visa Office—SCA/VO, State Annex No. 2, Washington, DC 20520, to assist the Visa Office in precluding the unwarranted issuance of visas to discharged and alien deserters in accordance with DoD Directive 1325.2 2 . Place of birth will be entered in Block 18.

(2) DD Form 214-ws. Utilized to facilitate the preparation of DD Form 214. The document will be used and disposed of in accordance with regulations issued by the Military Service concerned.

(3) DD Form 215. Utilized to correct errors in DD Form 214 discovered after the original has been delivered and/or distribution of copies of the form has been made, and to furnish to separatee information not available when the DD Form 214 was prepared. The distribution of DD Form 215 will be identical to the distribution of DD Form 214.

(4) Requests for Copies of DD Form 214 Subsequent to Separation. Agencies maintaining a separatee's DD Form 214 will provide a copy only upon written request by the member. Agencies will provide the member with 1 copy with the Special Additional Information section, and 1 copy with that information deleted. In the case of DD Form 214 issued prior to July 1, 1979, agencies will provide the member with 1 copy containing all items of information completed, and 1 copy with the following items deleted from the form: Specific authority and narrative reason for separation, reenlistment eligibility code, and separation program designator/number.

(i) In those cases where the member has supplied an authorization to provide a copy of the DD Form 214 to another individual or group, the copy furnished will not contain the Special Additional Information section or, in the case of DD forms issued prior to July 1, 1979, those items listed in paragraph (e)(4) of this section.

(ii) A copy will be provided to authorized personnel for official purposes only.

(f) Procurement. Arrangements for procurement of DD Forms 214, 214-ws, and 215 will be made by the Military Services.

(g) Modification of Forms. The modification of the content or format of DD Forms 214, 214-ws, and 215 may not be accomplished without prior authorization of the Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)). Requests to add or delete information will be coordinated with the other Military Services in writing, prior to submission to the ASD(FM&P). If a Military Service uses computer capability to generate forms, the items of information may be arranged, the size of the information blocks may be increased or decreased, and copies 7 and/or 8 may be deleted at the discretion of the Service.

(a) The DD Forms 214 and 215 are a source of significant and authoritative information used by civilian and governmental agencies to validate veteran eligibility for benefits. As such, they are valuable forms and, therefore, vulnerable to fraudulent use. Since they are sensitive, the forms must be safeguarded at all times. They will be transmitted, stored, and destroyed in a manner which will prevent unauthorized use. The Military Services will issue instructions consistent with the following:

(1) All DD Forms 214 will be surprinted with a reproducible screen tint using appropriate security ink on Blocks 1, 3, 4.a, 4.b, 12, and 18 through 30. In addition Blocks 1, 3, 5, and 7 of the DD Form 215 will be similarly surprinted to make alterations readily discernible. No corrections will be permitted in the screened areas.

(2) All forms will be secured after duty hours.

(3) All obsolete forms will be destroyed.

(4) All forms to be discarded, including those which are blank or partially completed, and reproduced copies of DD Form 214, will be destroyed. No forms will be discarded intact.

(5) Blank forms given to personnel for educational or instructional purposes, and forms maintained for such use, are to be clearly voided in an unalterable manner.

(6) The commander or commanding officer of each unit or activity authorized to issue DD Form 214 will appoint, in writing, a commissioned officer, warrant officer, enlisted member (grade E-7 or above), or DoD civilian (GS-7 or above) who will requisition, control, and issue blank DD Forms 214 and 215. The Service concerned may authorize an E-5 or GS-5 to serve in this capacity.

(7) The Military Services will monitor the use of DD Form 214 and review periodically its issuance to insure compliance with procedures for safeguarding.

(b) The DD Form 214-ws will contain the word “WORKSHEET” on the body of the form (see Appendix B). This DD Form 214-ws will be treated in the same manner as the DD Form 214.

(c) The Military Services will issue appropriate instructions to separation activities stressing the importance of the DD Forms 214 and 215 in obtaining veterans benefits, reemployment rights, and unemployment insurance.

(d) Standard separation program designator (SPD) codes for officer and enlisted personnel developed under the provisions of DoD Instruction 5000.12 3 are published in DoD 5000.12-M.

(1) Requests to add, change, or delete an SPD code shall be forwarded by the DoD Component concerned with appropriate justification to the Assigned Responsible Agency accountable for evaluating, recommending approval of, and maintaining such codes: Department of the Navy, Office of The Chief of Naval Operations, (Attention: OP-161), room 1514, Arlington Annex, Washington, DC 20350-2000.

(2) Requests to add, change, or delete an SPD code will be submitted in accordance with section V., DoD Instruction 5000.12 with prior written approval by the ASD (FM&P), or his/her designee.

(e) All lists of SPD codes, including supplemental lists, published by the DoD Components will be stamped “For Official Use Only” and will not be furnished to any agency or individual outside the Department of Defense.

(1) Appropriate provisions of the Freedom of Information Act will be used to deny the release of the lists to the public. An individual being separated or discharged is entitled access only to his/her SPD code. It is not intended that these codes stigmatize an individual in any manner. They are intended for internal use by the Department of Defense in collecting data to analyze statistical reporting trends that may, in turn, influence changes in separation policy.

(2) Agencies or individuals who come into the possession of these lists are cautioned on their use because a particular list may be outdated and not reveal correctly the full circumstances relating to an individual's separation or discharge.

This rule reissues this part dated September 25, 1963, and implements the Provisions of Executive Order 10646, November 23, 1955, wherein the Secretary of Defense was designated the Federal Coordinator for assigning responsibility and prescribing procedures to implement the absentee voting program authorized by the Federal Voting Assistance Act of 1955 (FVAA) and the Overseas Citizens Voting Rights Act of 1975 (OCVRA). This part assigns responsibility and delegates authority to the Deputy Assistant Secretary of Defense (Administration) to carry out this program on behalf of the Secretary of Defense.

(a) The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, and the Defense Agencies (hereafter referred to as the “DoD Components”).

(b) Other executive departments and agencies shall provide assistance to this program, upon request, as provided by sections 1973cc-11 and 1973cc-13 of FVAA and 1973dd-2b of OCVRA. (Participating departments and agencies shall adopt regulations and procedures that conform to this part to the extent practicable, consistent with their organization missions.)

For the purpose of administering the Federal Voting Assistance Program, the following definitions apply:

(a) Federal Election. Any general, special, or primary election held solely or in part for the purpose of selecting, nominating, or electing any candidate for the office of President, Vice President, Presidential Elector, Member of the United States Senate, Member of the United States House of Representatives, Delegate from the District of Columbia, Resident Commissioner from the Commonwealth of Puerto Rico, Delegate from Guam, or Delegate from the Virgin Islands.

(b) State election. Any general, special, or primary election held solely or in part for the purpose of selecting, nominating, or electing any candidate for any State office, such as, governor, lieutenant governor, or attorney general.

(c) Local election. An election which is less than a State election, such as a municipal, county, or township election.

(d) Military Services. Refers to the Army, Navy, Air Force, Marine Corps, and the Coast Guard.

(e) Uniformed Services. Refers to the Army, Navy, Air Force, Marine Corps, Coast Guard, the Commissioned Corps of the U.S. Public Health Service, and the Commissioned Corps of the National Oceanic and Atmospheric Administration.

(f) Voter. A person in any of the following categories who is authorized by law and who is registered to vote in any primary, special, or general election.

(1) Members of the Uniformed Services or Merchant Marine in active service and their spouses and dependents, wherever stationed.

(2) U.S. citizens temporarily residing outside the United States.

(3) Other U.S. citizens residing outside the United States not covered by any other category mentioned above and whose intent to return to their State of last residence may be uncertain.

(g) Voting residence. The legal residence or domicile in which the voter is registered to vote.

(a) To implement and administer the FVAA and OCVRA, as amended/DoD Components and other participating Federal departments and agencies concerned with the voting program shall encourage their eligible voters to participate in the voting process of the Federal, State, and local governments.

(b) The voting program shall be administered in such a manner as to ensure that voters are provided all necessary voting information, including voting age requirements, election dates, officers to be elected, constitutional amendments, other ballot proposals, and absentee registration and voting procedures.

(c) When practicable and compatible with operational conditions, every voter shall be afforded an opportunity to register and vote in any election for which the State of his or her voting residence has established enabling laws and procedures.

(d) Voting in person or by absentee process shall be offered when local conditions allow voters to prepare, send, and receive personal material. However, a determination by those administering the voting program that voting assistance cannot be rendered because it is impractical and incompatible with military or Federal operations shall be conclusive, if this determination is made in good faith. (See section 1973cc-24, FVAA.)

(e) Absentee voting procedures shall be prescribed in such a manner as to safeguard the integrity and secrecy of the ballot. In addition, all necessary steps shall be taken to prevent fraud and to protect voters against coercion of any sort.

(1) No member of the Uniformed Services shall attempt to influence any other member to vote or not to vote for any particular candidate, or to require any member to march to any polling place or place of voting. (See section 1973cc-25 of FVAA.)

(2) However, nothing in § 46.4(e), above, shall be considered to prohibit free discussion regarding political issues or candidates for public office. (See enclosure 2 of DoD Directive 1344.10,1 Political Activities by Members of the Armed Forces, September 23, 1969.)

(3) No person in the Uniformed Services of the United States shall poll any other member to attempt to influence his or her vote before or after he or she votes. (See enclosure 2 of DoD Directive 1344.10.)

(4) The provision in § 46.4(c) above, shall not preclude making surveys for statistical compilations to measure the extent of voting participation of persons covered by the FVAA and OCVRA, as amended.

In accordance with E.O. 10646, authority and responsibility are hereby delegated to the Deputy Assistant Secretary of Defense (Administration) to carry out this program on behalf of the presidential designee, the Secretary of Defense. The Deputy Assistant Secretary of Defense (Administration) is authorized to act for the presidential designee and to coordinate and facilitate such actions as may be required to discharge Federal responsibilities assigned in E.O. 10646, FVAA, and OCVRA.

(a) The Deputy Assistant Secretary of Defense (Administration) shall: (1) Manage, coordinate, or perform the tasks assigned to the presidential designee in E.O. 10646, the FVAA, and OCVRA.

(2) Establish and maintain liaison with officials of the State legislatures, and with State and local election law officials.

(3) Be the sole DoD representative for obtaining from each State current voting information and disseminating it to other executive departments, agencies, and DoD Components. In this regard, DoD Components and participating departments and agencies may not contact State voting officials about voting matters.

(4) Encourage and assist States and other U.S. jurisdictions to adopt the mandatory and recommendatory provisions of the FVAA and OCVRA, and advise them on the applicability of Federal laws and regulations to their individual electoral systems.

(5) Establish a DoD Voting Assistance Program to cover all eligible voters of the Department of Defense (military and civilian) and their eligible spouses and dependents, to assist these personnel to vote either in person or by absentee process.

(6) Publicize the right of citizens to register and vote absentee under the FVAA and OCVRA.

(7) Review and coordinate the informational and educational effort directed toward all persons covered by the FVAA and OCVRA.

(8) Provide an ombudsman-type service for all persons covered by the FVAA and OCVRA and for State and local election officials.

(9) Designate a week or day in September of each even-numbered year for the purpose of encouraging military personnel and their dependents to exercise their right to vote.

(10) Conduct a survey of U.S. citizens (military and civilian) covered by the FVAA and OCVRA to gather necessary statistical information to prepare the biennial report to the President and Congress required by FVAA.

(b) Heads of DoD Components shall: (1) Facilitate the dissemination of voting information and provide assistance to their own personnel, including the services of an official authorized to administer oaths.

(i) In overseas areas, arrangements shall be made to provide absentee voting information and assistance to voters described in § 46.5(f)(1) and (2).

(ii) To the extent practical, information and assistance shall also be made available to voters described in § 46.5(f)(3).

(2) Ensure command support at all levels for the Voting Assistance Program.

(3) Designate a senior officer of general or flag rank in each Military Service as the Senior Military Voting Representative to manage Military Service voting programs.

(4) Designate voting officers or counselors at every level of command who are trained to carry out their assigned responsibilities. Voting officers or counselers should be readily available and equipped to give personal assistance to voters for Federal, State and local elections. In addition, any person who appears to need assistance in reading or understanding any English language material relating to voting or voter registration should receive immediate assistance in the appropriate language.

(5) Ensure that voting information and related materials, such as the Voting Assistance Guide, and the Federal Post Card Application form (FPCA—SF 76 Current Edition), are obtained and disseminated in a timely manner. FPCAs are to be purchased in sufficient quantities to furnish registration and ballot request support for all primary and general elections.

(6) Ensure the in-hand delivery of FPCAs by August 15 to Uniformed Services personnel, their spouses and eligible dependents, and civilian employees of the Uniformed Services, their spouses and eligible dependents, who are serving outside the territorial limits of the United States.

(7) Ensure in-hand delivery of FPCAs by September 15 to Uniformed Services personnel and their spouses and eligible dependents within the United States, in accordance with FVAA.

(8) Require Inspectors General to include the Federal Voting Program as an item for specific review at every level of command to ensure that persons are informed and provided an opportunity to exercise their right to vote, and that the command has adequately provided for voting officers or counselers.

(9) Provide for continuing evaluation of command voting programs.

(10) Establish and publicize the availability of a special telephone service, the “Voting Action Line,” to link unit voting officers or counselors with their respective Uniformed Service Senior Military Voting Representative or Voting Action Officer at the departmental level. Emphasis shall be placed on providing rapid, accurate responses and solutions to voting-oriented problems.

(11) During Federal election years, ensure that all Armed Forces personnel receive at least one briefing, training period, or information period of instruction devoted to absentee registration and voting. Emphasis should be placed on the availability of voting information, supporting materials, personal assistance, and the importance of why every vote counts.

(12) Ensure that telephone operators at every military installation are provided with the names and office telephone numbers of unit or installation voting officers or counselors.

(13) File an After-Action Report in the form specified by the Director, Federal Voting Assistance Program.

(14) Conduct a Ballot Transmission Survey in the manner specified by the Director, Federal Voting Assistance Program.

This document:

(a) Revises 32 CFR part 47 and implements Public Law 95-202.

(b) Directs the Secretary of the Air Force to determine if an established group of civilian employees or contract workers provided service to the U.S. Armed Forces in a manner considered active military service for Department of Veterans Affairs (VA) benefits.

(c) Establishes the DoD Civilian/Military Service Review Board and the Advisory Panel.

(d) Establishes policy, assigns responsibilities, prescribes application procedures for groups and individuals, and clarifies the factors used to determine active duty (AD) service.

This part:

(a) Applies to the Office of the Secretary of Defense (OSD), the Military Departments, and by agreement with the Department of Transportation (DoT), the U.S. Coast Guard.

(b) Applies to any group application considered under Public Law 95-202 after September 11, 1989 and to any individual who applies for discharge documents as a member of a group recognized by the Secretary of the Air Force.

Armed conflict. A prolonged period of sustained combat involving members of the U.S. Armed Forces against a foreign belligerent. The term connotes more than a military engagement of limited duration or for limited objectives, and involves a significant use of military and civilian forces.

(a) Examples of armed conflict are World Wars I and II, and the Korean and Vietnam Conflicts.

(b) Examples of military actions that are not armed conflicts are as follows:

(1) The incursion into Lebanon in 1958, and the peacekeeping force there in 1983 and 1984.

(2) The incursions into the Dominican Republic in 1965 and into Libya in 1986.

(3) The intervention into Grenada in 1983.

Civilian or contractual group. An organization similarly situated to the Women's Air Forces Service Pilots (a group of Federal civilian employees attached to the U.S. Army Air Force in World War II). Those organization members rendered service to the U.S. Armed Forces during a period of armed conflict in a capacity that was then considered civilian employment with the Armed Forces, or the result of a contract with the U.S. Government, to provide direct support to the Armed Forces.

Recognized group. A group whose service the Secretary of the Air Force administratively has determined to have been “active duty for the purposes of all laws administered by the Department of Veterans Affairs”; i.e., VA benefits under 38 U.S.C. 101.

Similarly situated. A civilian or contractual group is similarly situated to the Women's Air Forces Service Pilots when it existed as an identifiable group at the time the service was being rendered to the U.S. Armed Forces during a period of armed conflict. Persons who individually provided support through civilian employment or contract, but who were not members of an identifiable group at the time the services were rendered, are not “similarly situated” to the Women's Air Forces Service Pilots of World War II.

(a) Eligibility for consideration. To be eligible to apply for consideration under Public Law 95-202 and this part, a group must:

(1) Have been similarly situated to the Women's Air Forces Service Pilots of World War II.

(2) Have rendered service to the United States in what was considered civilian employment with the U.S. Armed Forces either through formal Civil Service hiring or less formal hiring if the engagement was created under the exigencies of war, or as the result of a contract with the U.S. Government to provide direct support to the U.S. Armed Forces.

(3) Have rendered that service during a period of armed conflict.

(4) Consist of living persons to whom VA benefits can accrue.

(5) Not have already received benefits from the Federal Government for the service in question.

(b) A determination of AD service that is considered to be equivalent to active military service is made on the extent to which the group was under the control of the U.S. Armed Forces in support of a military operation or mission during an armed conflict. The extent of control exerted over the group must be similar to that exerted over military personnel and shall be determined by, but not necessarily limited to, the following:

(1) Incidents favoring equivalency—(i) Uniqueness of service. Civilian service (civilian employment or contractual service) is a vital element of the war-fighting capability of the Armed Forces. Civilian service during a period of armed conflict is not necessarily equivalent to active military service, even when performed in a combat zone. Service must be beyond that generally performed by civilian employees and must be occasioned by unique circumstances. For civilian service to be recognized under this part, the following factors must be present:

(A) The group was created or organized by U.S. Government authorities to fill a wartime need or, if a group was not created specifically for a wartime need, but existed before that time, then its wartime mission was of a nature to substantially alter the organization's prewar character.

(B) If the application is based on service in a combat zone, the mission of the group in a combat zone must have been substantially different from the mission of similar groups not in a combat zone.

(ii) Organizational authority over the group. The concept of military control is reinforced if the military command authority determines such things as the structure of the civilian organization, the location of the group, the mission and activities of the group, and the staffing requirements to include the length of employment and pay grades of the members of the group.

(iii) Integration into the military organization. Integrated civilian groups are subject to the regulations, standards, and control of the military command authority.

(A) Examples include the following:

(1) Exchanging military courtesies.

(2) Wearing military clothing, insignia, and devices.

(3) Assimilating the group into the military organizational structure.

(4) Emoluments associated with military personnel; i.e., the use of commissaries and exchanges, and membership in military clubs.

(B) A group fully integrated into the military would give the impression that the members of the group were military, except that they were paid and accounted for as civilians.

(C) Integration into the military may lead to an expectation by members of the group that the service of the group imminently would be recognized as active military service. Such integration acts in favor of recognition.

(iv) Subjection to military discipline. During past armed conflicts, U.S. military commanders sometimes restricted the rights or liberties of civilian members as if they were military members.

(A) Examples include the following:

(1) Placing members under a curfew.

(2) Requiring members to work extended hours or unusual shifts.

(3) Changing duty assignments and responsibilities.

(4) Restricting proximity travel to and from the military installation.

(5) Imposing dress and grooming standards.

(B) Consequences for noncompliance might include a loss of some privilege, dismissal from the group, or trial under military law. Such military discipline acts in favor of recognition.

(v) Subjection to military justice. Military members are subject to the military criminal justice system. During times of war, “persons serving with or accompanying an Armed Force in the field” are subject to the military criminal justice code. Those who were serving with the U.S. Armed Forces may have been treated as if they were military and subjected to court-martial jurisdiction to maintain discipline. Such treatment is a factor in favor of recognition.

(vi) Prohibition against members of the group joining the armed forces. Some organizations may have been formed to serve in a military capacity to overcome the operation of existing laws or treaty or because of a governmentally established policy to retain individuals in the group as part of a civilian force. These factors act in favor of recognition.

(vii) Receipt of military training and/or achievement of military capability. If a group employed skills or resources that were enhanced as the result of military training or equipment designed or issued for that purpose, this acts toward recognition.

(2) Incidents not favoring equivalency—(i) Submission to the U.S. Armed Forces for protection. A group that seeks protection and assistance from the U.S. Armed Forces and submits to military control for its own well-being is not deemed to have provided service to the Armed Forces equivalent to AD military service, even though the group may have been as follows:

(A) Armed by the U.S. military for defensive purposes.

(B) Routed by the U.S. military to avoid the enemy.

(C) Instructed by the U.S. military for the defense of the group when attacked by, or in danger of attack by, the enemy.

(D) Otherwise submitted themselves to the U.S. military for sustenance and protection.

(ii) Permitted to resign. The ability of members to resign at will and without penalty acts against military control. Penalty may be direct and severe, such as confinement, or indirect and moderate, such as difficult and costly transportation from an overseas location.

(iii) Prior recognition of group service. Recognition of a group's service by agencies of State or local government does not provide support in favor of recognition under this part.

(3) Status of group in international law. In addition to other factors, consideration will be given to whether members of the group were regarded and treated as civilians, or assimilated to the Armed Forces as reflected in treaties, customary international law, judicial decisions, and U.S. diplomatic practice.

(c) Reconsideration. Applications by groups previously denied a favorable determination by the Secretary of the Air Force shall be reconsidered under this part if the group submits evidence that is new, relevant, and substantive. Any request that the DoD Civilian/Military Service Review Board established hereunder (see § 47.5(b)) determines does not provide new, relevant, and substantive evidence shall be returned to the applicant with the reasons for nonacceptance.

(d) Counsel Representation. Neither the Department of Defense nor Department of Transportation shall provide representation by counsel or defray the cost of such representation with respect to any matter covered by this part.

(a) Submitting group applications. Applications on behalf of a civilian or contractual group shall be submitted to the Secretary of the Air Force using the instructions in appendix A to this part.

(b) Processing group applications. (1) When received, the recorder shall review the application for sufficiency and either return it for more information or accept it for consideration and announce acceptance in the Federal Register.

(2) The recorder shall send the application to the appropriate advisory panel for historical review and analysis.

(3) When received, the recorder shall send the advisory panel's report to the applicant for comment. The applicant's comments shall be referred to the advisory panel if significant disagreement requires resolution. Additional comments from the historians also shall be referred to the applicant for comment.

(4) The DoD Civilian/Military Service Board shall consider the group application, as established, in paragraph (a) and paragraphs (b) (1) through (3) of this section.

(5) After the Secretary of the Air Force makes a decision, the recorder shall notify the applicant of the decision and announce it in the “Federal Register.”

(c) Submitting individual applications. When a group is recognized, individual members may apply to the appropriate Military Department or to the Coast Guard for discharge documents. Submit applications on DD Form 2168, “Application for Discharge of Member or Survivor of Member of Group Certified to Have Performed Active Duty with the Armed Forces of the United States.” An application on behalf of a deceased or incompetent member submitted by the next of kin must be accompanied by proof of death or incompetence.

This part:

(a) Regulates the Department of Defense Military Equal Opportunity (EO) Program and assigns responsibilities for ensuring DoD-wide compliance with the broad program objectives outlined in DoD Human Goals Charter, March 21, 1988.

(b) Provides for education and training in EO and human relations.

(c) Prescribes the functions of the Defense Equal Opportunity Council (DEOC), the Defense Equal Opportunity Management Institute (DEOMI), and the Board of Visitors (BOV) to DEOMI.

This part:

(a) Applies to all military members of the Office of the Secretary of Defense (OSD), the Military Departments (including their National Guard and Reserve components), the Joint Staff, the Unified and Specified Commands, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “DoD Components”). The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.

(b) Applies to DoD contracted organizations that provide services to military personnel and their families.

(c) Does not apply to civilian personnel, except as noted in paragraph (b) of this section.

Affirmative Action. Methods used to achieve the objectives of the EO program. Processes, activities, and systems designed to identify, eliminate, prevent, and work to overcome the effects of discriminatory treatment as it affects the upward mobility and quality of life for DoD personnel.

Discrimination. Illegal treatment of a person or group based on handicap, race, color, national origin, age, religion, or gender.

DoD Military Equal Opportunity (EO) Program. The DoD-wide military program of equal opportunity that is accomplished through efforts by DoD Components. It provides an environment in which every member of the total force is ensured an opportunity to rise to as high a level of responsibility as possible in the military profession, dependent only on merit, fitness, and capability.

Equal Opportunity (EO). The right of all persons to participate in and benefit from programs and activities for which they are qualified. These programs and activities shall be free from social, personal, or institutional barriers that prevent people from rising to as high a level of responsibility as possible. Persons shall be evaluated only on individual merit, fitness, and capability, regardless of race, color, gender, national origin, age, or handicap except as prescribed by statute, or DoD/Service policy.

Ethnic Group. A segment of the population that possesses common characteristics and a cultural heritage based to some degree on the following:

(a) Common geographic origin;

(b) Race;

(c) Language or dialect;

(d) Religious faith or faiths;

(e) Shared traditions, values, or symbols;

(f) Literature, folklore, or music;

(g) An internal sense of distinctiveness; and/or

(h) An external perception of distinctiveness.

Ethnic and Racial Categories. The basic racial and ethnic categories for DoD reporting are defined as follows:

(a) American Indian or Alaskan Native. A person having origins in the original peoples of North America.

(b) Asian or Pacific Islander. A person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent, or the Pacific Islands. This area includes China, India, Japan, Korea, the Philippine Islands, and Samoa.

(c) Black (Not of Hispanic Origin). A person having origins in any of the original peoples of Africa.

(d) Hispanic. A person having origins in any of the original peoples of Mexico, Puerto Rico, Cuba, or Central or South America, or of other Spanish cultures, regardless of race.

(e) White (Not of Hispanic Origin). A person having origins in any of the original peoples of Europe, North Africa, or the Middle East.

National origin. An individual's or ancestor's place of origin. Also applies to a person who has the physical, cultural, or linguistic characteristics of a national group.

Race. A division of humans identified by the possession of traits that are transmissible by descent and that are sufficient to characterize as a distinctive human type.

Religion. A personal set or institutionalized system of attitudes, moral or ethical beliefs, and practices that are held with the strength of traditional religious views, characterized by ardor and faith, and generally evidenced through specific religious observances.

Sexual Harassment. A form of sex discrimination that involves unwelcomed sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

(a) Submission to or rejection of such conduct is made either explicitly or implicitly a term or condition of a person's job, pay, or career, or

(b) Submission to or rejection of such conduct by a person is used as a basis for career or employment decisions affecting that person, or

(c) Such conduct interferes with an individual's performance or creates an intimidating, hostile, or offensive environment.

Any person in a supervisory or command position who uses or condones implicit or explicit sexual behavior to control, influence, or affect the career, pay, or job of a military member or civilian employee is engaging in sexual harassment. Similarly, any military member or civilian employee who makes deliberate or repeated unwelcomed verbal comments, gestures, or physical contact of a sexual nature is also engaging in sexual harassment.

It is DoD policy to:

(a) Support the military EO program as an integral element in total force readiness, as defined in the Secretary of Defense Memorandum and enforce at all levels of activity the EO provisions of this part in developing operating EO policies and programs.

(b) Use the chain of command to promote, support, and enforce the military EO program. The chain of command is the primary and preferred channel for correcting discriminatory practices and for ensuring that human relations and EO matters are enacted.

(c) Ensure the Military Services (to include the Reserve components) maintain military EO and affirmative action programs. Discrimination that adversely affects persons or groups based on race, color, religion, gender, age, or national origin, and that is not supported legally, is contrary to good order and discipline, and is counterproductive to combat readiness and mission accomplishment. Discrimination of this nature shall not be condoned or tolerated.

(d) Provide education and training in EO and human relations at installation and fleet unit commands, Military Service accession points, and throughout the professional military education (PME) system, as part of the overall effort to achieve equal opportunity.

(e) Provide for an environment that is free from sexual harassment by eliminating this form of discrimination in the Department of Defense.

(f) Ensure that all on-base activities and, to the extent of the ability of DoD, any off-base activities available to military personnel are open to all military personnel and their authorized family members regardless of race, color, religion, age, physical or mental handicap, gender, or national origin, as called for by the DoD Human Goals Charter.

(1) Organizations or activities that do not meet this requirement shall be denied the use of military facilities and resources in accordance with 32 CFR part 237. This policy applies equally to those organizations that may discriminate based on the content of their constitutions, bylaws, rules or regulations, as well as to those which, in the judgment of the responsible commander(s), are engaging in de facto discrimination regardless of the content of their constitutions, bylaws, rules or regulations.

(2) Organizations that use on-base facilities, whether on a reimbursable basis or otherwise, must satisfy the responsible area or activity commander that they do not discriminate through their actual membership practices or in any of their activities.

(g) Oppose discrimination in off-base housing directed against military personnel and their authorized family members. Each commander shall take actions to overcome such discrimination and to impose off-limits sanctions in housing cases, as required by 32 CFR part 301.

(h) Impose, as required, the off-limits sanction according to the Armed Forces Disciplinary Control Board as stated in the Joint Regulation, in cases of discrimination involving places of public accommodations outside military installations.

(a) The Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)) shall:

(1) Represent and advise the Secretary of Defense in military EO matters consistent with 32 CFR part 384.

(2) Chair the Defense Equal Opportunity Council.

(3) Provide guidance on developing all DoD programs to ensure equal opportunity for military personnel in the total force.

(4) Develop, execute, and monitor the effectiveness of military EO policies in support of national security objectives.

(5) Ensure that DoD Components fulfill the requirements of this part.

(6) Provide policy direction to DEOMI and select the Commandant of DEOMI from Military Service nominations.

(7) Establish categories and monitor specific goals to be included in the affirmative action programs and annual military EO assessments of each DoD Component.

(8) Review and act on (or refer to appropriate Military Service) all complaints of discrimination arising under this part (to include sexual harassment) referred to the Secretary of Defense.

(9) Ensure fair, impartial and timely investigation, resolution, and follow-up of all complaints of discrimination arising under this part.

(10) Establish a program to recognize individuals and organizations for outstanding achievement in one or more of the major EO areas covered by this part.

(b) The Heads of DoD Components shall be responsible for equal opportunity within their respective jurisdictions (to include their Reserve components) and shall:

(1) Ensure that all DoD EO policies and programs are understood and executed at all levels of military command.

(2) Establish affirmative action programs that identify and resolve EO problems through formulating, maintaining, and reviewing affirmative action plans (AAPs) with established objectives and milestones and including accountability in personnel management consistent with DoD Instruction 1350.3.1

(3) Forward a fiscal year report to the ASD(FM&P) outlining the progress being made to achieve the established military EO objectives of the AAP. This report shall be due each year on February 1, and is described further in DoD Instruction 1350.2.

(4) Establish policies that include specific actions to be taken against any individual who commits an act of discrimination, as defined in § 51.3.

(5) Rewrite documents and change practices that discriminate against military personnel based on race, religion, color, gender, or national origin. This requirement does not apply to those Military Service documents that implement statutes or DoD/Service policy requiring different treatment of military personnel based on age or gender.

(6) Establish policies and procedures to prevent sexual harassment and to ensure that appropriate action is taken against individuals who commit sexual harassment offenses, in accordance with the Secretary of Defense Memorandums.

(7) Ensure that all military personnel, including command-selectees and flag and general officers, receive training in equal opportunity, human relations, and prevention of sexual harassment on a recurring basis, and at all levels of PME.

(8) Establish and fill sufficient full-time staff positions and allocate sufficient resources to conduct all EO programs. Equal opportunity staff personnel shall be placed at a level that enables them to communicate effectively the goals and objectives of the program and obtain the understanding, support, and commitment of the organization's leaders.

(9) Ensure that all discrimination complaints are investigated in a fair, impartial, and prompt manner.

(10) Ensure that consideration of EO program support is included in the instructions that guide rating officials in preparing efficiency reports and/or evaluations on their subordinates.

(11) Develop management information and reporting systems to determine the progress for each AAP goal consistent with DoD Instruction 1350.3.

(12) Establish EO awards programs to recognize individuals and organizational units for outstanding achievement in any of the EO areas covered by this part or Military Service-unique programs.

An annual report is required and is assigned Report Control Symbol DD-FM&P(A)1760. Reporting requirements are contained in appendix A to this part and further amplified in DoD Instruction 1350.3.

This part prescribes limitations on wearing of the uniform by members of the Armed Forces, and establishes policy with respect to wearing of the uniform by former members of the Armed Forces.

(a) Members of the Armed Forces (including retired members and members of reserve components). The wearing of the uniform is prohibited under any of the following circumstances:

(1) At any meeting or demonstration which is a function of, or sponsored by an organization, association, movement, group, or combination of persons which the Attorney General of the United States has designated, pursuant to E.O. 10450 as amended, as totalitarian, fascist, communist, or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny others their rights under The Constitution of the United States, or as seeking to alter the form of Government of the United States by unconstitutional means.

(2) During or in connection with the furtherance of political activities, private employment or commercial interests, when an inference of official sponsorship for the activity or interest could be drawn.

(3) Except when authorized by competent Service authority, when participating in activities such as public speeches, interviews, picket lines, marches, rallies or any public demonstrations (including those pertaining to civil rights), which may imply Service Sanction of the cause for which the demonstration or activity is conducted.

(4) When wearing of the uniform would tend to bring discredit upon the Armed Forces.

(5) When specifically prohibited by regulations of the department concerned.

(b) Former members of the Armed Forces. (1) Unless qualified under another provision of this part or under the provisions of 10 U.S.C. 772, former members who served honorably during a declared or undeclared war and whose most recent service was terminated under honorable conditions may wear the uniform in the highest grade held during such war service only upon the following occasions and in the course of travel incidents thereto:

(i) Military funerals, memorial services, weddings, and inaugurals.

(ii) Parades on national or State holidays; or other parades or ceremonies of a patriotic character in which any active or reserve U.S. military unit is taking part.

(2) Wearing of the uniform or any part thereof at any other time or for any other purpose is prohibited.

(c) Medal of Honor holders. Persons who have been awarded the Medal of Honor may wear the uniform at their pleasure except under the circumstances set forth in paragraph (a) of this section.

Under section 65 of title 42, United States Code, this part provides policy on statutorily required child or child and spousal support allotments, assigns responsibilities, and prescribes procedures.

(a) This part applies to the Office of the Secretary of Defense (OSD) and the Military Departments. The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.

(b) Its provisions cover members of the Military Services on extended active duty. This does not include a member under a call or order to active duty for a period of less than 30 days.

(a) Authorized person. Any agent or attorney of any State having in effect a plan approved under part D of title IV of the Social Security Act (42 U.S.C. 651-664), who has the duty or authority to seek recovery of any amounts owed as child or child and spousal support (including, when authorized under the State plan, any official of a political subdivision); and the court that has authority to issue an order against a member for the support and maintenance of a child or any agent of such court.

(b) Child support. Periodic payments for the support and maintenance of a child or children, subject to and in accordance with State or local law. This includes, but is not limited to, payments to provide for health care, education, recreation, and clothing or to meet other specific needs of such a child or children.

(c) Designated official. The representative of the Military Service concerned who is authorized to receive and to process notices under this part. See § 54.6(f) for a listing of designed officials.

(d) Notice. A court order, letter, or similar documentation issued by an authorized person providing notification that a member has failed to make periodic support payments under a support order.

(e) Spousal support. Periodic payments for the support and maintenance of a spouse or former spouse, in accordance with State and local law. It includes, but is not limited to, separate maintenance, alimony while litigation continues, and maintenance. Spousal support does not include any payment for tranfer of property or its value by an individual to his or her spouse or former spouse in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses.

(f) Support order. Any order providing for child or child and spousal support issued by a Court of competent jurisdiction within any State, territory, or possession of the United States, including Indian tribal courts, or in accordance with administrative procedures established under State law that affords substantial due process and is subject to judicial review.

The Department of Defense is obligated by 42 U.S.C. 665 to require child, or child and spousal, support allotments from the pay and allowances of a member who has failed to make periodic payments under a support order in a total amount equal to the support payable for 2 months or longer. The member's allotment shall be established by the Secretary of the Military Department concerned, or the Secretary's designee, provided all requirements of this part have been met.

(a) The Assistant Secretary of Defense (Comptroller) (ASD(C)) shall provide guidance, monitor compliance with this part, and have the authority to change or modify the procedures in § 54.6.

(b) The Secretaries of the Military Departments shall comply with this part.

(a) Notice to designated official. (1) An authorized person shall send to the designated official of the member's Military Service a signed notice that includes:

(i) A statement that delinquent support payments equal or exceed the amount of support payable for 2 months under a support order, and a request that an allotment be initiated pursuant to 42 U.S.C. 665.

(ii) A certified copy of the support order.

(iii) The amount of the monthly support payment. Such amount may include arrearages, if a support order specifies the payment of such arrearages. The notice shall indicate how much of the amount payable shall be applied toward liquidation of the arrearages.

(iv) A statement that delinquent support payments are more than 12 weeks in arrears, if appropriate.

(v) Sufficient information identifying the member to enable processing by the designated official. The following information is requested:

(A) Full name;

(B) Social Security Number;

(C) Military Service (Army, Navy, Air Force, or Marine Corps).

(vi) The full name and address of the allottee. The allottee shall be an authorized person, the authorized person's designee, or the recipient named in the support order.

(vii) Any limitations on the duration of the support allotment.

(viii) A certificate that the official sending the notice is an authorized person.

(2) The notice shall be sent by mail or delivered in person to the appropriate designated official of the Military Service. The designated official shall note the date and time of receipt on the notice.

(3) The notice is effective when it is received in the office of the designated official.

(4) When the notice does not sufficiently identify the member, it shall be returned directly to the authorized person with an explanation of the deficiency. However, before the notice is returned, if there is sufficient time, an attempt shall be made to inform the authorized person who sent the notice that it will not be honored unless adequate information is supplied.

(5) Upon receipt of effective notice of delinquent support payments, together with all required supplementary documents and information, the designated official shall identify the member from whom moneys are due and payable. Under § 54.6(d), the allotment shall be established in the amount necessary to comply with the support order and to liquidate arrearages if provided by a support order when the maximum amount to be allotted under this provision, together with any other moneys withheld for support from the member, does not exceed:

(i) Fifty percent of the member's disposable earnings for any month in which the member asserts by affidavit or other acceptable evidence that he or she is supporting a spouse, dependent child, or both, other than a party in the support order. When the member submits evidence, copies shall be sent to the authorized person, together with notification that the member's support claim shall be honored. If the support claim is contested by the authorized person, that authorized person may refer this matter to the appropriate court or other authority for resolution.

(ii) Sixty percent of the member's disposable earnings for any month in which the member fails to assert by affidavit or other acceptable evidence that he or she is supporting a spouse, dependent child, or both.

(iii) Regardless of the limitations above, an additional 5 percent of the member's disposable earnings shall be withheld when the notice states that the total amount of the member's support payments is 12 or more weeks in arrears.

(b) Disposable Earnings. (1) In determining disposable earnings for a member assigned within the contiguous United States, include the following payments. For definitions of these items, see DoD 5000.12-M.

(i) Basic pay (including Military Service academy cadet and midshipman pay).

(ii) Basic allowance for quarters for members with dependents, and for members without dependents in grade E-7 or higher.

(iii) Basic allowance for subsistence for commissioned and warrant officers.

(iv) Special pay for physicians, dentists, optometrists, and veterinarians.

(v) Submarine pay.

(vi) Flying pay (all crew members).

(vii) Diving pay.

(viii) Proficiency pay or special duty assignment pay.

(ix) Career sea pay.

(2) To determine disposable earnings for a member assigned outside of the contiguous United States, the following shall supplement the payments listed in paragraph (b)(1) of this section:

(i) Foreign duty pay.

(ii) Special pay for duty subject to hostile fire (applies only to members permanently assigned in a designated area).

(iii) Family separation allowances (only under certain type-II conditions).

(iv) Special pay for overseas extensions

(c) Calculations of disposable earnings shall exclude:

(1) Amounts owed by the member to the United States.

(2) Amounts mandatorily withheld for the U.S. Soldiers’ and Airmen's Home.

(3) Fines and forfeitures ordered by a court-martial or by a commanding officer.

(4) Federal and State employment and income taxes withheld to the extent that the amount deducted is consistent with the member's tax liability.

(5) Deductions for the Servicemen's Group Life Insurance coverage.

(6) Advances of pay received by the member before receipt of notice (see paragraph (c)(1) of this section) that may be due and payable by the member at some future date. Requests for advances received after notice for a statutorily required support allotment shall be reduced by the amount of the statutorily required support allotment.

(7) Other amounts required by law to be deducted.

(d) Notice to member and member's Commanding Officer.

(1) As soon as possible, but not later than 15 calendar days after the date of receipt of notice, the designated official shall send to the member, at his or her duty station, written notice:

(i) That notice has been received from an authorized person, including a copy of the documents submitted.

(ii) Of the maximum limitations provided in 15 U.S.C. 1673, with a request that the member submit supporting affidavits or other documentation necessary for determining the applicable percentage limitation.

(iii) That the member may submit supporting affidavits or other documentation as evidence that the information contained in the notice is in error.

(iv) That by submitting supporting affidavits or other necessary documentation, the member consents to the disclosure of such information to the party requesting the support allotment.

(v) Of the amount or percentage that will be deducted if the member fails to submit the documentation necessary to enable the designated official to respond to the notice within the prescribed time limits.

(vi) That a consultation with a judge advocate or legal officer will be provided by the Military Service, if possible, and that the member should immediately contact the nearest legal services office.

(vii) Of the date that the allotment is scheduled to begin.

(2) The designated official shall notify the member's commanding officer, or designee, of the need for consultation between the member and a judge advocate or legal officer. The designated official shall provide the member's commanding officer, or designee, with a copy of the notice and other legal documentation served on the designated official.

(3) The Military Services shall provide the member with the following:

(i) When possible, an in-person consultation with a judge advocate or legal officer of the Military Service concerned, to discuss the legal and other factors, involved in the member's support obligation and failure to make payment.

(ii) Copies any other documents submitted with the notice.

(4) The member's commanding officer, or designee, shall confirm in writing to the designated official within 30 days of notice that the member received a consultation concerning the member's support obligation and the consequences of failure to make payments, or when appropriate, of the inability to arrange such consultation and the status of continuing efforts to fulfill the consultation requirement.

(5) If, within 30 days of the date of the notice, the member has furnished the designated official affidavits or other documentation showing the information in the notice to be in error, the designated official shall consider the member's response. The designated official may return to the authorized person, without action, the notice for a statutorily required support allotment together with the member's affidavit and other documentation, if the member submits substantial proof of error, such as:

(i) The support payments are not delinquent.

(ii) The underlying support order in the notice has been amended, superseded, or set aside.

(e) Payments. (1) Except as provided in paragraph (e)(3) the Secretary of the Military Department concerned, or designee, shall make the support allotment by the first end-of-month payday after the designated official is notified that the member has had a consultation with a judge advocate or legal officer, or that a consultation was not possible, but not later than the first end-of-month payday after 30 days have elapsed from the date of the notice to the member. The Military Services will not be required to vary their normal military allotment payment cycle to comply with the notice.

(2) If several notices are sent with respect to the same member, payments shall be satisfied on a first-come, first-served basis within the amount limitations in paragraph (a)(5) of this section.

(3) When the member identified in the notice is found not to be entitled to money due from or payable by the Military Service, the designated official shall return the notice to the authorized person and shall advise him or her that no money is due from or payable by the Military Service to the named individual. When it appears that amounts are exhausted temporarily or otherwise unavailable, the authorized person shall be told why, and for how long, any money is unavailable, if known. If the member separates from active duty, the authorized person shall be informed that the allotment is discontinued.

(4) Payment of statutorily required allotments shall be enforced over other voluntary deductions and allotments when the gross amount of pay and allowances is not sufficient to permit all authorized deductions and collections.

(5) The authorized person or allottee shall notify the designated official promptly if the operative court order upon which the allotment is based is vacated, modified, or set aside. The designated official shall also be notified of any events affecting the allottee's eligibility to receive the allotment, such as the former spouse's remarriage, if a part of the payment is for spousal support, and notice of a change in eligibility for child support payments under circumstances of death, emancipation, adoption, or attainment of majority of a child whose support is provided through the allotment.

(6) An allotment established under this Directive shall be adjusted or discontinued upon notice from the authorized person.

(7) Neither the Department of Defense, nor any officer or employee thereof, shall be liable for any payment made from moneys due from, or payable by, the Department of Defense to any individual pursuant to notice regular on its face, if such payment is made in accordance with this part. If a designated official receives notices based on a support order which, on its face, appears to conform to the laws of the jurisdiction from which it was issued, the designated official shall not be required to ascertain whether the authority that issued the order had obtained personal jurisdiction over the member.

(f) List of designated officials.

To establish a uniform policy relating to physical examinations and certificates of physical condition for reservists (other than retired reservists) when not on active duty.

This part applies to all Military Departments in the administration of members of reserve components.

(a) Each member of the Ready Reserve who is not on active duty shall be examined as to his physical fitness at least once every four years, or more often as the Secretary concerned considers necessary, and shall execute and submit annually a certificate of physical condition.

(b) Each member of the Standby Reserve in an active status, or on an inactive status list, shall execute and submit annually a certificate of physical condition.

(c) Members of the Standby Reserve may be examined as to their physical condition if the Secretary concerned considers such action necessary.

(d) Physical examinations will be reported on Standard Form 88, “Report of Physical Examination” and Standard Form 89, “Report of Medical History.” To accomplish physical examinations, the Military Departments are authorized to use jointly all available medical facilities and to award points creditable toward retirement to medical reservists not on active duty for administering physical examinations or to use civilian physicians on a reimbursable basis where governmental medical facilities are not available.

(e) The following action may be taken in regard to those reservists failing to submit such information as may be requested by the appropriate Secretary after every reasonable effort has been made to obtain such information:

(1) Reservists having obligation under the Universal Military Training and Service Act, as amended, may be ordered to active duty or active duty for training, as deemed appropriate under the provisions of section 672(b), title 10, U.S. Code, for the purpose of securing the necessary information.

(2) All other reservists may be considered for discharge pursuant to section 1162(a) of title 10 U.S. Code.

This part implements section 504 of Public Law 93-112, “Rehabilitation Act of 1973,” September 26, 1973 (29 U.S.C. 794) (1976); section 111 of Pub. L. 93-516, “Rehabilitation Act Amendments of 1974,” December 7, 1974 (29 U.S.C. 706, 780, 790) (1976); section 119 of Pub. L. 95-602, “Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978,” November 6, 1978 (29 U.S.C. 794) (supp. III 1979); and Department of Justice Regulation, “Implementation of Executive Order 12250, Nondiscrimination on the Basis of Handicap in Federally Assisted Programs,” August 11, 1981 (28 CFR part 41) to prohibit discrimination based on handicap in programs and activities receiving Federal financial assistance disbursed by the Department of Defense and in programs and activities conducted by the Department of Defense.

(a) This part applies to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the National Guard Bureau, and the Defense Agencies (hereafter referred to as “DoD Components”) insofar as they:

(1) Extend Federal financial assistance to programs and activities that affect handicapped persons in the United States and that are covered by this part (see § 56.7(b)).

(2) Conduct programs and activities that affect handicapped persons in the United States and that are covered by this part (see § 56.7(c)).

(b) This part also applies to each recipient of Federal financial assistance disbursed by the Department of Defense and to each program and activity that receives or benefits from such assistance, insofar as such recipient, program, or activity affects a handicapped person in the United States.

It is DoD policy that no qualified handicapped person shall be subjected to discrimination on the basis of handicap under any program or activity that receives or benefits from Federal financial assistance disbursed by a DoD Component or under any Federal program or activity that is conducted by a DoD Component. Guidelines for determining actions that discriminate against handicapped persons are prescribed in § 56.8.

(a) The Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) (ASD(MRA&L)), or designee, shall monitor compliance with this part. In discharging this responsibility, the ASD(MRA&L), or designee, shall:

(1) Coordinate efforts of DoD Components to enforce this part.

(2) Assist in the development of standards and procedures promulgated pursuant to § 56.9.

(3) Perform the responsibilities assigned to the ASD(MRA&L) in § 56.8, 9, and 10.

(4) Otherwise assist DoD Components in implementing this part.

(b) The Heads of DoD Components shall comply with this part. In discharging this responsibility, they shall:

(1) Designate a policy-level official to ensure compliance with this part receive and investigate complaints filed under this part and otherwise manage DoD Component responsibilities under this part.

(2) Notify the ASD(MRA&L), or designee, of the name, position, location, and telephone number of persons selected by them to be policy-level officials within 15 calendar days of such a selection.

(3) Issue guidelines pursuant to § 56.9.

(4) Cooperate fully with the ASD(MRA&L), or designee, in that official's performance of the responsibilities assigned herein, including furnishing to the ASD(MRA&L), or designee, in a timely fashion any requested reports and information.

(5) Assign sufficient personnel to implement and to ensure effective enforcement of this part.

(a) Each DoD Component shall maintain a log of all complaints that are filed with it or its recipients under this part. The log shall contain the complainant's name (last name, first, and middle initial) and address (street address, city, State, and zip code), the recipient's name (if this refers to a person, last name, first, and middle initial) and address (street address, city, State, and zip code), the nature of the complaint, and the current status of the complaint investigation or resolution. Each DoD Component shall submit a narrative summary report on complaints by memorandum to the ASD(MRA&L), or designee, before July 15 and January 15 of each year. This reporting requirement has been assigned Report Control Symbol DD-M(SA)1596.

(b) Each DoD Component shall submit a narrative report by memorandum to the ASD(MRA&L), or designee, whenever, pursuant to enclosure 4 of this directive, the DoD Component notifies an applicant or recipient that noncompliance with this part is indicated. The report shall include the recipient's name (if this refers to a person, last name, first, and middle initial) and address (street address, city, State, and zip code), the date (YYMMDD) and nature of the finding, and the name of the applicable federally assisted program or activity. This reporting requirement has been assigned Report Control Symbol DD-M(AR)1597.

(c) The recordkeeping requirements contained in § 56.9(c)(2), have been approved by the Office of Management and Budget (OMB) under 44 U.S.C. chapter 35 and have been assigned OMB No. 0704-0102.

(a) General prohibitions against discrimination. (1) No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefit of, or otherwise be subjected to discrimination under any program or activity that is conducted by the Department of Defense or that receives or benefits from Federal financial assistance disbursed by the Department of Defense.

(2) A recipient or DoD Component may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap:

(i) Provide different or separate aid, benefits, or services to handicapped persons than is provided to others unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are equal to those provided to others;

(ii) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;

(iii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

(iv) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective as that afforded to others; or

(v) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity granted to others receiving the aid, benefit, or service.

(3) A recipient or DoD Component may not deny a qualified handicapped person the opportunity to participate in programs or activities that are not separate or different from regular programs or activities, even if such separate or different programs and activities are permissible under paragraph (a)(2)(i) of this section.

(4) A recipient or DoD Component may not provide assistance to an agency, organization, or person that discriminates on the basis of handicap in providing any aid, benefit, or service to beneficiaries of the recipient's program or activity.

(5) A recipient of DoD Component may not deny, on the basis of handicap, a qualified handicapped person the opportunity to participate as a member of planning or advisory boards.

(6) A recipient or DoD Component may not use, directly or through contractual or other arrangements, criteria or methods of administration that:

(i) Subject qualified handicapped persons to discrimination on the basis of handicap;

(ii) Defeat or substantially impair accomplishment of the objectives of the recipient's or DoD Component's program or activity with respect to handicapped persons; or

(iii) Perpetuate discrimination by another recipient if both recipients are subject to common administrative control or are agencies of the same State.

(7) In determining the site or location of a facility, a recipient or DoD Component may not make selections that:

(i) Exclude handicapped persons from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity that receives or benefits from Federal financial assistance; or

(ii) Defeat or substantially impair, with respect to handicapped persons, the accomplishment of the objectives of the program or activity.

(8) Recipients and DoD Components shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.

(9) Recipients and DoD Components shall take appropriate steps to make communications with their applicants, employees, and beneficiaries available to persons with impaired vision and hearing.

(10) This section may not be interpreted to prohibit the exclusion of:

(i) Persons who are not handicapped from benefits, programs, and activities limited by Federal statute or Executive order to handicapped persons; or

(ii) One class of handicapped persons from a program or activity limited by Federal statute or Executive order to a different class of handicapped persons.

(11) Recipients and DoD Components shall take appropriate steps to ensure that no handicapped individual is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination under any program or activity receiving or benefiting from Federal financial assistance disbursed by the Department of Defense or under any program or activity conducted by the Department of Defense because of the absence of auxiliary aids, such as certified sign-language interpreters, telecommunication devises (TDDs), or other telephonic devices for individuals with impaired sensory, manual, or speaking skills.

(b) Prohibitions against employment discrimination by recipients. (1) No qualified handicapped person shall, on the basis of handicap, be subjected to discrimination in employment under any program or activity that receives or benefits from Federal financial assistance disbursed by the Department of Defense.

(2) The prohibition against discrimination in employment applies to the following:

(i) Recruitment, advertising, and processing of applications for employment.

(ii) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring.

(iii) Rates of pay or any other form of compensation and changes in compensation.

(iv) Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists.

(v) Leaves of absence, sick leave, or any other leave.

(vi) Fringe benefits available by virtue of employment, whether or not administered by the recipient.

(vii) Selection and financial support for training, including apprenticeship, professional meetings, conferences and other related activities, and selection for leaves of absence for training.

(viii) Programs and activities sponsored by the employer, including social and recreational programs.

(ix) Any other term, condition, or privilege of employment.

(3) A recipient may not participate in a contractual or other relationship that subjects qualified handicapped applicants or employees to discrimination prohibited by this section, including relationships with employment and referral agencies, labor unions, organizations providing or administering fringe benefits to employees of the recipient, and organizations providing training and apprenticeship programs.

(4) A recipient shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program. Reasonable accommodation includes providing ramps, accessible restrooms, drinking fountains, interpreters for deaf employees, readers for blind employees, amplified telephones, TDDs such as Teletypewriters or Telephone Writers (TTYs), and tactile signs on elevators.

(5) A recipient may not use employment tests or criteria that discriminate against handicapped persons, and shall ensure that employment tests are adapted for use by persons who have handicaps that impair sensory, manual, or speaking skills.

(6) A recipient may not conduct a preemployment medical examination or make a preemployment inquiry about whether an applicant is a handicapped person or about the nature or severity of a handicap. A recipient may make, however, a preemployment inquiry into an applicant's ability to perform job-related functions.

(7) When a recipient is taking remedial action to correct the effects of past discrimination or is taking voluntary action to overcome the effects of conditions that have resulted in limited participation by handicapped persons in its federally assisted program or activity, the recipient may invite applicants for employment to indicate whether and to what extent they are handicapped if:

(i) The recipient makes clear to the applicants that the information is intended for use solely in connection with its remedial action obligations or its voluntary affirmative action efforts.

(ii) The recipient makes clear to the applicants that the information is being requested on a voluntary basis, that it will be kept confidential as provided in paragraph (b)(9) in this section, that refusal to provide it will not subject the applicants to any adverse treatment, and that it will be used only in accordance with this part.

(8) Nothing in this section shall prohibit a recipient from conditioning an offer of employment on the results of a medical examination conducted prior to the employee's entrance on duty if:

(i) All entering employees are subjected to such an examination, regardless of handicap.

(ii) The results of such an examination are used only in accordance with this part which prohibits discrimination against a qualified handicapped person on the basis of handicap.

(9) Information obtained under this section concerning the medical condition or history of applicants shall be collected and maintained on separate forms that shall be accorded confidentiality as medical records, except that:

(i) Supervisors and managers may be informed about restrictions on the work or duties of handicapped persons and about necessary accommodations.

(ii) First aid and safety personnel may be informed, when appropriate, if a handicapping condition might require emergency treatment.

(iii) Government officials investigating compliance with section 504, Pub. L. 93-112, and this part shall be provided relevant information upon request.

(c) Program accessibility—(1) General requirements. No qualified handicapped person shall, because a recipient's or DoD Component's facilities are inaccessible to or not usable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity that receives or benefits from Federal financial assistance disbursed by the Department of Defense or under any program or activity conducted by the Department of Defense.

(2) Existing facilities. (i) A recipient or DoD Component shall operate each program or activity so that the program or activity, when viewed in its entirety, is readily accessible to and usable by handicapped persons. This does not necessarily require a recipient or DoD Component to make each of its existing facilities or every part of an existing facility accessible to and usable by handicapped persons. For guidance in determining the accessibility of facilities, see chapter 18 of DoD 4270.1-M, “Department of Defense Construction Criteria Manual,” June 1, 1978, and Department of the Army, Office of the Chief of Engineers, Manual EM 1110-1-103, “Design for the Physically Handicapped,” October 15, 1976. Inquiries on specific accessibility design problems may be addressed to the ASD (MRA&L), or designee.

(ii) When structural changes are necessary to make programs or activities in existing facilities accessible to the exent required by paragraph (c)(1) of this section.

(A) Such changes shall be made as soon as practicable, but not later than 3 years after the effective date of this part however, if the program or activity is a particular mode of transportation (such as a subway station) that can be made accessible only through extraordinarily expensive structural changes to, or replacement of, existing facilities and if other accessible modes of transportation are available, the DoD Component concerned may extend this period of time. This extension shall be for a reasonable and definite period, which shall be determined after consultation with the ASD(MRA&L), or designee.

(B) The recipient or DoD Component shall develop, with the assistance of interested persons or organizations and within a period to be established in each DoD Component's guidelines, a transition plan setting forth the steps necessary to complete such changes.

(C) The recipient or DoD Component shall make a copy of the transition plan available for public inspection. At a minimum, the plan shall:

(1) Identify physical obstacles in the recipient's or DoD Component's facilities that limit the accessibility of its program or activity to handicapped persons.

(2) Describe in detail the methods that will be used to make the facilities accessible.

(3) Specify the schedule for taking the steps necessary to achieve full program accessibility and, if the time period of the transition plan is longer than 1 year, identify steps that will be taken during each year of the transition period.

(4) Indicate the person (last name, first, and middle initial) responsible for implementation of the transition plan.

(iii) A recipient or DoD Component may comply with paragraphs (c)(2)(i) and (c)(2)(ii) of this section, through such means as the acquisition or redesign of equipment, such as telecommunication or other telephonic devices; relocation of classes or other services to accessible buildings; assignment of aides to beneficiaries, such as readers or certified sign-language interpreters; home visits; delivery of health, welfare, or other services at accessible alternate sites; alteration of existing facilities and construction of new facilities in conformance with paragraph (c)(3) in this section; or any other method that results in making the program or activity of the recipient or DoD Component accessible to handicapped persons.

(iv) A recipient or DoD Component is not required to make structural changes in existing facilities when other methods are effective in achieving compliance with this section.

(v) In choosing among available methods for meeting the requirements of this section, a recipient or DoD Component shall give priority to those methods that offer programs and activities to handicapped persons in the most integrated setting appropriate with nonhandicapped persons.

(3) New Construction. New facilities shall be designed and constructed to be readily accessible to and usable by handicapped persons. Alterations to existing facilities shall be designed and constructed, to the maximum extent feasible, to be readily accessible to and usable by handicapped persons. For guidance in determining the accessibility of facilities, see chapter 18 of DoD 4270.1-M and Department of the Army, Office of the Chief of Engineers, Manual EM 1110-1-103. Inquiries about specific accessibility design problems may be addressed to the ASD(MRA&L), or designee.

(4) Historic properties. (i) In the case of historic properties, program accessibility shall mean that, when viewed in their entirety, programs are readily accessible to and usable by handicapped persons. Because the primary benefit of historic properties is the experience of the property itself, DoD Components and recipients shall give priority to those methods of achieving program accessibility that make the historic property, or portions thereof, physically accessible to handicapped persons.

(ii) Methods of achieving program accessibility include:

(A) Making physical alterations that give handicapped persons access to otherwise inaccessible areas or features of historic properties.

(B) Using audiovisual materials and devices to depict otherwise inaccessible areas or features of historic properties.

(C) Assigning individuals to guide handicapped persons into or through otherwise inaccessible portions of historic properties.

(D) Adopting other innovative methods.

(iii) When program accessibility cannot be achieved without causing a substantial impairment of significant historic features, the DoD Component or recipient may seek a modification or waiver of access standards from the ASD (MRA&L), or designee.

(A) A decision to grant a modification or waiver shall be based on consideration of the following:

(1) Scale of the property, reflecting its ability to absorb alterations.

(2) Use of the property, whether primarily for public or private purposes.

(3) Importance of the historic features of the property to the conduct of the program.

(4) Costs of alterations in comparison to the increase in accessibility.

(B) The ASD(MRA&L), or designee, shall review periodically any waiver granted under this paragraph and may withdraw it if technological advances or other changes warrant.

(iv) The decision by the ASD(MRA&L), or designee, to grant a modification or waiver of access standards is subject to section 106 of the National Historic Preservation Act, as amended, and shall be made in accordance with the Advisory Council on Historic Preservation regulation on “Protection of Historic and Cultural Properties” (36 CFR part 800). When the property is federally owned or when Federal funds may be used for alterations, the ASD(MRA&L), or designee, shall obtain the comments of the Advisory Council on Historic Preservation when required by section 106 of the National Historic Preservation Act and the Advisory Council on Historic Preservation regulation on “Protection of Historic and Cultural Properties” (36 CFR part 800) prior to effectuation of structural alterations.

(v) DoD Component guidelines prepared in accordance with § 56.10 shall include a listing of all historic properties, including historic ships, subject to this part and a plan for compliance with paragraph (c)(4) of this section.

(5) Military museums. (i) In the case of military museums, program accessibility shall mean that exhibits, displays, tours, lectures, circulating or traveling exhibits, and other programs of military museums are accessible to and usable by handicapped persons. Methods of meeting this requirement include the following:

(A) Museum programs may be made accessible to deaf and hearing-impaired persons by means such as training museum staff, such as docents, in sign language; providing qualified sign-language interpreters to accompany deaf or hearing-impaired visitors; ensuring that clear, concise language is used on all museum signs and display labels; providing amplification devices; or providing printed scripts for films, videotapes, lectures, or tours. DoD Components are encouraged to use “Museums and Handicapped Students: Guidelines for Educators,” published by the National Air and Space Museum, Smithsonian Institution, Washington, DC 20560.

(B) Museum programs may be made accessible to blind and visually-impaired persons by means such as providing museum catalogues in a large-print edition printed over braille; providing cassette tapes, records, or discs for museum tours or exhibits; providing readers to accompany blind or vis-ually impaired visitors; using large-print and braille display cards at exhibits; providing raised-line maps of the museum building; using raised-line drawings, reproductions, or models of large exhibits to facilitate tactile experiences when touching exhibits is prohibited; placing large-print and braille signs to identify galleries, elevators, restrooms, and other service areas; and permitting guide dogs in all museum facilities.

(C) Museum programs may be made accessible to other physically impaired persons by means such as lowering display cases; spacing exhibits to facilitate movement; using ramps in galleries; increasing lighting in exhibit areas to facilitate viewing from a distance; providing places to sit in exhibit areas; making restrooms accessible; using large-print exhibit display cards to facilitate reading from a distance; and sensitizing museum staff to consider the needs of handicapped visitors when organizing exhibits.

(ii) DoD Component guidelines developed in accordance with paragraph (c)(5) of this section shall identify military museums subject to paragraph (c) of this section and shall contain a plan for making museum programs accessible to handicapped persons. Technical assistance in the preparation and content of these plans may be obtained from the National Access Center, 1419 27th Street, NW., Washington, DC 20007 ((202) 333-1712 or TTY (202) 333-1339). In addition, community organizations that serve handicapped persons and handicapped persons themselves shall be consulted in the preparation of these plans.

(d) Reasonable accommodation. (1) A recipient or DoD Component shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient or DoD Component demonstrates to the ASD(MRA&L), or designee, that the accommodation would impose an undue hardship on the operation of its program.

(2) Reasonable accommodation includes the following:

(i) Making facilities used by employees readily accessible to and usable by handicapped persons.

(ii) Job restructuring; part-time or modified work schedules; acquisition or modification of equipment or devices, such as telecommunication or other telephonic instruments; the provision of readers or certified sign-language interpreters; and similar actions.

(3) In determining whether an accommodation would impose an undue hardship on the operation of a recipient's or DoD Component's program, the ASD(MRA&L), or designee, shall consider the following factors, at a minimum:

(i) The overall size of the recipient's or DoD Component's program or activity, such as the number of employees, number and type of facilities, and size of budget.

(ii) The size of the recipient's or DoD Component's operations, including the composition and structure of the recipient's or DoD Component's workforce.

(iii) The nature and cost of the accommodation needed.

(4) A recipient or DoD Component may not deny any employment opportunity to a qualified handicapped employee or applicant for employment if the basis for the denial is the need to make reasonable accommodation to the physical or mental limitations of the employee or applicant.

(a) Supplementary guidelines issued by DoD Components. (1) Whenever necessary, DoD Components shall publish supplementary guidelines for each type of program or activity to which they disburse Federal financial assistance within 120 days of the effective date of this part or of the effective date of any subsequent statute authorizing Federal financial assistance to a new type of program or activity. DoD Components shall obtain approval of these supplementary guidelines from the ASD(MRA&L), or designee, before issuing them. Prior to their issuance, the ASD(MRA&L), or designee, shall submit supplementary guidelines prepared pursuant to paragraph (a)(1) of this section to the Coordination and Review Section, Civil Rights Division, Department of Justice, for review and approval. To the extent that supplementary guidelines issued by DoD Components deal with the employment of civilians in programs and activities subject to this part the ASD(MRA&L), or designee, shall also obtain the approval of the Equal Employment Opportunity Commission (EEOC) in accordance with Executive Order 12067.

(2) The ASD(MRA&L), or designee, and DoD Components shall ensure that their supplementary guidelines conform to the requirements of this part and that they provide:

(i) A description of the types of programs and activities covered.

(ii) Examples of prohibited practices likely to arise with respect to those types of programs and activities.

(iii) A list of the data collection and reporting requirements of the recipients.

(iv) Procedures for processing and investigating complaints.

(v) Procedures for hearings to determine compliance by recipients with this part.

(vi) Requirements or suggestions for affirmative action on behalf of qualified handicapped persons.

(vii) Requirements for the dissemination of program and complaint information to the public.

(viii) A description of the form of the assurances that must be executed pursuant to paragraph (b) of this section, and sample assurances.

(ix) Requirements concerning the frequency and nature of postapproval reviews conducted pursuant to paragraph (h) of this section.

(x) A period of time, provided for by § 56.8(c)(2)(ii)(B), for the development of a transition plan that sets out the steps necessary to complete structural changes that might be required by § 56.8(c).

(xi) The maximum period of time that may be allowed for extensions that might be granted pursuant to § 56.8(c)(2)(ii).

(xii) An appendix that contains a list of identified programs and activities of the type covered by the supplementary guidelines, including the names of the programs and activities and the authorizing statute, regulation, or directive for each program and activity.

(xiii) Requirements for the recipient to designate a responsible official to coordinate the implementation of supplementary guidelines.

(xiv) Requirements for any other actions or procedures necessary to implement this part.

(3) When the head of a DoD Component determines that it would not be appropriate to include on or more of the provisions described in paragraph (a)(2) of this section, in the supplementary guidelines of that DoD Component or that it is not necessary to issue such guidelines at all, the reasons for such determination shall be stated in writing and submitted to the ASD(MRA&L), or designee, for review and approval. Once that determination is approved, the DoD Component shall make it available to the public upon request.

(4) The heads of DoD Components, or designees, shall be responsible for keeping the supplementary guidelines current and accurate. When a DoD Component determines that a program or activity should be added to or deleted from the guidelines, the DoD Component shall notify the ASD(MRA&L), or designee, in writing.

(b) Required assurances. (1) DoD Components shall require all recipients to file written assurances that their programs or activities will be conducted in accordance with this part and supplementary guidelines promulgated by DoD Components. If a recipient fails to provide an assurance that conforms to the requirements of this section, the DoD Component shall attempt to effect compliance pursuant to paragraphs (f) through (h) of this section, provided that if assistance is due and payable to the recipient based on an application approved prior to the effective date of this part the DoD Component shall continue the assistance while any proceedings required by paragraphs (n) through (v) of this section, are pending.

(2) DoD Components shall advise each recipient of the required elements of the assurance and, with respect to each program or activity, of the extent to which those receiving assistance from recipients shall be required to execute similar assurances.

(3) DoD Component shall ensure that each assurance:

(i) Obligates the recipient to advise the DoD Component of any complaints received that allege discrimination against handicapped persons.

(ii) Obligates the recipient to collect and provide the items of information that the DoD Component lists in its supplementary guidelines pursuant to paragraph (a)(2)(iii) of this section.

(iii) Is made applicable to any Federal financial assistance that might be disbursed by a DoD Component without the submission of a new application.

(iv) Obligates the recipient, when the financial assistance is in the form of proprerty, for the period during which the property is used under a financial assistance agreement or is possessed by the recipient.

(v) Includes a provision recognizing that the U.S. Government has the right to seek judicial enforcement of section 504 and this part.

(c) Self-evaluation and consultation with interested persons and organizations. (1) DoD Components shall require recipients to conduct, within 6 months of the effective date of this part or of first receiving Federal financial assistance disbursed by the Department of Defense, a self-evaluation with the assistance of interested persons, including handicapped persons or organizations that represent them. When appropriate, DoD Components also shall require recipients to consult at least annually with such persons. The “Department of Health, Education, and Welfare Section 504 Technical Assistance Reserve Directory,” April 1980, shall be consulted to identify likely sources for consultation. In conducting its self-evaluation, each recipient shall:

(i) Evaluate the effects of its policies and practices with respect to its compliance with this part and the applicable DoD Component's supplementary guidelines.

(ii) Modify any policies that do not meet such requirements.

(iii) Take appropriate remedial steps to eliminate the discriminatory effects of any such policies or practices.

(2) For at least 3 years following the completion of a self-evaluation required under paragraph (c)(1) of this section, a recipient shall maintain on file, make available for public inspection, and provide to the ASD(MRA&L), or designee, upon request:

(i) A list of the interested persons (last names, first names, and middle initials) consulted.

(ii) A description of areas examined and problems identified, if any, with respect to those areas.

(iii) A description of any modification made and remedial steps taken.

(d) Dissemination of information. (1) Within 90 days of the effective date of this part or of first receiving assistance from the Department of Defense and on a continuing basis thereafter, each recipient shall notify beneficiaries and employees of their rights under this part and shall take appropriate steps to notify participants, beneficiaries, applicants for employment and employees, including those with impaired vision or hearing, and unions or professional organizations involved in collective bargaining or professional agreements with the recipient that the recipient does not discriminate on the basis of handicap in violation of this part. The notification shall state, when appropriate, that the recipient does not discriminate in admitting or providing access to or treating or employing persons in its programs and activities. Such notification may be accomplished by posting notices, publishing announcements in newspapers and magazines, placing notices in its publications, or distributing memoranda or other written communications.

(2) If a recipient publishes or uses and makes available to participants, beneficiaries, applicants for employment, or employees recruitment materials or publications containing general information about the recipient's programs and activities, it shall include in those materials or publications a statement of the policy described in paragraph (d)(1) of this section. This may be accomplished by including appropriate inserts in existing materials and publications or by revising and reprinting the materials and publications.

(3) Understandable materials developed in accordance with this section shall be provided to ensure that all beneficiaries and employees of the recipient understand the information. In addition, recipients shall disseminate appropriate and comprehensive information about formal and informal complaint and appeal procedures, including directions on how and where to file complaints and to appeal DoD Component decisions.

(e) Intimidation and interference. Recipients and DoD Components shall take reasonable steps to ensure that no person intimidates, threatens, coerces, or discriminates against any individual for the purpose of retaliating against, interfering with, or discouraging the filing of a complaint, furnishing of information, or assisting or participating in an investigation, compliance review, hearing, or other activity related to the administration of this part.

(f) Staff responsibilities. All DoD Component determinations of recipient compliance with this part shall be subject to reviews by the ASD(MRA&L), or designee. When responsibility for approving applications for Federal financial assistance disbursed by a DoD Component is assigned to regional or area offices of the DoD Component, personnel in such offices shall be designated to perform the functions described in paragraphs (h) and (o) through (w) of this section.

(g) Access to records and facilities. Each recipient shall permit access to its premises by DoD officials during normal business hours when such access is necessary for conducting onsite compliance reviews or complaint investigations, and shall allow such officials to photograph facilities and to inspect and copy any books, rec-ords, accounts, and other material relevant to determining the recipient's compliance with this part. Information so obtained shall be used only in connection with the administration of this part. If the recipient does not have the information requested, it shall submit to the DoD Component a written report that contains a certification that the information is not available and describes the good-faith efforts made to obtain the information.

(h) Compliance review. DoD Components shall determine the compliance of each recipient with this part as follows: (1) General. Whenever possible, DoD Components shall perform compliance reviews in conjunction with their review and audit efforts implementing title VI of the Civil Rights Act of 1964.

(2) Desk audit application review. Before approving an application for Federal financial assistance, the DoD Component concerned shall make a written determination as to whether the recipient is in compliance with this part, based on a review of the assurance of compliance executed by a recipient pursuant to paragraph (b) of this section, and other data submitted by the recipient. When a determination cannot be made from the assurance and other data submitted by the recipient, the DoD Component concerned shall require the recipient to submit additional information and shall take other steps as necessary to determine the recipient's compliance with this part. If this additional information demonstrates that the recipient is in compliance with this part, the DoD Component shall notify the recipient promptly that it is in compliance.

(3) Preapproval onsite review. (i) When a desk audit application review conducted pursuant to paragraph (h)(2) of this section indicates that the recipient might not be in compliance with this part, the DoD Component concerned may conduct a preapproval onsite review at the recipient's facilities before approving the disbursement of Federal financial assistance to the recipient. The DoD Component shall conduct such a review:

(A) When appropriate, if a desk audit application review reveals that the recipient's compliance posture is questionable because of a history of discrimination complaints, current discrimination complaints, a noncompliance determination by another government agency or DoD Component, or other indications of possible noncompliance; or

(B) If Federal financial assistance is requested for construction, except under extraordinary circumstances, to determine whether the location and design of the project would provide service on a nondiscriminatory basis, in conformity with § 56.8(c).

(ii) Preapproval onsite reviews shall be conducted under DoD Component supplementary guidelines and in accordance with the provisions of paragraph (h)(4) of this section, concerning postapproval reviews.

(4) Postapproval reviews. DoD Components shall: (i) Establish and maintain effective programs of postapproval reviews.

(ii) Conduct such reviews of each recipient, the frequency and the nature of which shall be prescribed in the DoD Component supplemetary guidelines implementing this part.

(iii) Require recipients periodically to submit compliance reports to them.

(iv) Record the results of the reviews, including findings of fact and recommendations.

(5) A DoD Component shall complete a review within 180 calendar days of initiating it unless an extension of time is granted by the ASD(MRA&L), or designee, for good cause shown, and shall either:

(i) Find the recipient to be in compliance and notify the recipient of that finding; or

(ii) Notify the recipient and the ASD(MRA&L), or designee, of a finding of probable noncompliance, pursuant to paragraph (o) of this section.

(i) Filing of complaints against recipients. (1) DoD Components shall establish and publish in their supplementary guidelines procedures for the prompt processing and disposition of complaints against recipients, consistent with this section.

(2) A DoD Component shall consider all complaints that: (i) Are filed with it within 180 days of the alleged discrimination or within a longer period of time if an extension is granted for good cause by the DoD Component with the approval of the ASD(MRA&L), or designee.

(ii) Include the name, address, and telephone number, if any, of the complainant; the name and address of the recipient committing the alleged discrimination; a description of the acts or omissions considered to be discriminatory; and other pertinent information.

(iii) Are signed by the complainant or the complainant's authorized representative (legal counsel or a person with power of attorney granted by the complainant).

(3) DoD Components shall transmit a copy of each complaint filed with them to the ASD(MRA&L), or designee, within 10 calendar days after its receipt.

(4) If the information in a complaint is incomplete, the DoD Component shall request the complainant to provide the additional information required. If the DoD Component does not receive this requested information within 30 calendar days of the date of the request, the case may be closed and the complainant so notified in writing.

(5) If a complaint concerning a program or activity is filed with a DoD Component that does not have jurisdiction over it, the DoD Component shall refer the complaint to the ASD(MRA&L), or designee, and advise the complainant in writing of such referral. The ASD(MRA&L), or designee, then shall refer the complaint to the appropriate DoD Component and so notify the complainant in writing.

(j) Investigation by DoD components. (1) DoD Components shall investigate complaints that involve recipients and that meet the standards described in paragraph (i) of this section, unless good cause for not investigating is stated in a written notification of the disposition of the complaint provided to the complainant.

(2) If an investigation of a complaint is conducted, the DoD Component concerned shall maintain a case record that contains:

(i) The name (last name, first, and middle initial), address (street address, city, State, and zip code), and telephone number of each person interviewed.

(ii) Copies, transcripts, or summaries of pertinent documents.

(iii) A reference to at least one program or activity conducted by the recipient and receiving Federal financial assistance disbursed by a DoD Component, and a description of the amount and nature of the assistance.

(iv) A narrative report of the results of the investigation that contains references to relevant exhibits and other evidence that relates to the alleged violations.

(k) Investigations by recipients. (1) A DoD Component may require or permit recipients to investigate complaints alleging violation of this part. In such cases, the DoD Component shall:

(i) Ensure that the recipient investigates the complaints in accordance with the standards, procedures, and requirements prescribed in paragraph (j) of this section.

(ii) Require the recipient to submit a written report of each complaint and investigation to the DoD Component.

(iii) Retain a review responsibility over the investigation and disposition of each complaint.

(iv) Ensure that each complaint investigation is completed within 180 calendar days of the receipt of the complaint by the proper DoD Component, unless an extension of time is granted for good cause by the ASD(MRA&L), or designee.

(v) Require the recipient to maintain a log of all complaints filed against it, as described in § 56.6(a)(1).

(2) DoD Components that require or permit complaint investigations to be conducted by recipients shall review recipient complaint investigations pursuant to paragraphs (k) and (l) of this section.

(l) Results of investigations. (1) Within 180 days of the receipt of a complaint, the DoD Component, recipient, or the ASD(MRA&L), or designee, shall give written notification:

(i) Of the disposition of the complaint to the complainant and, as the case may be, to the recipient or DoD Component.

(ii) To the complainant that within 30 calendar days of receipt of the written notification, the complainant may request that the ASD(MRA&L), or designee, review the findings in the notification pursuant to paragraph (m) of this section.

(2) If the complaint investigation results in a determination by the DoD Component that a recipient is not complying with this part the DoD Component shall proceed as prescribed in paragraph (n) through (v) of this section. If the DoD Component determines that the recipient is in compliance, the DoD Component shall submit the complete case file to the ASD(MRA&L), or designee, within 15 calendar days after the notification of the disposition of the investigation to the complainant.

(m) Reviewing completed investigations. (1) The ASD(MRA&L), or designee, may review all completed investigations.

(2) The ASD(MRA&L), or designee, shall review the results of any investigation of a complaint if the complainant requests such a review pursuant to paragraph (l)(1)(ii) of this section.

(3) After reviewing the results of an investigation, the ASD(MRA&L), or designee, may:

(i) Find that no further investigation is necessary and approve the results of the investigation;

(ii) Request further investigation by the DoD Component; or

(iii) Require the DoD Component to take appropriate corrective action.

(n) Effecting compliance. (1) When a compliance review or complaint investigation indicates that a recipient has violated this part, the applicable DoD Component's supplementary guidelines, or the assurances executed pursuant to paragraph (b) of this section, the responsible DoD Component or the ASD(MRA&L), or designee, shall attempt to effect compliance in accordance with paragraphs (o) and (p) of this section. The inability of a DoD Component to comply with any time frame prescribed by this part does not relieve a recipient of the responsibility for compliance with this part.

(2) The DoD Component may require, when necessary to overcome the effects of discrimination in violation of this part, a recipient to take remedial action:

(i) With respect to handicapped persons who are no longer participants in the recipient's program or activity but who were participants in the program or activity when such discrimination occurred.

(ii) With respect to handicapped persons who would have been participants in the recipient's program or activity had the discrimination not occurred.

(iii) With respect to handicapped persons presently in the recipient's program or activity, but not receiving full benefits or equal and integrated treatment within the program or activity.

(o) Written notice. After evaluating the investigative report, the DoD Component shall issue to the recipient and, pursuant to paragraph (n)(2) of this section to the ASD(MRA&L), or designee, a written notice that:

(1) Describes the apparent violation and the corrective actions necessary to achieve compliance.

(2) Extends an offer to meet informally with the recipient.

(3) Informs the recipient that failure to respond to the notice within 15 calendar days of its receipt shall result in the initiation of enforcement procedures described in paragraphs (r) through (v), of this section.

(p) Attempting to achieve voluntary compliance by recipients. (1) If a DoD Component issues a notice pursuant to paragraph (o) of this section, the DoD Component shall attempt to meet with the recipient and shall attempt to persuade it to take the steps necessary to achieve compliance with this part.

(2) If a recipient agrees to take remedial steps to achieve compliance, the DoD Component shall require that the agreement be in writing and:

(i) Be signed by the head of the DoD Component concerned, or designee, and by the principal official of the recipient.

(ii) Specify the action necessary to achieve compliance.

(iii) Be made available to the public upon request.

(iv) Be subject to the approval of the ASD(MRA&L), or designee.

(3) If satisfactory adjustment or a written agreement has not been achieved within 60 calendar days of the recipient's receipt of the notice issued pursuant to paragraph (o) of this section, the DoD Component shall notify the ASD(MRA&L), or designee, and state the reasons therefor.

(4) The DoD Component shall initiate the enforcement actions prescribed in paragraphs (r) through (v) of this section if:

(i) The recipient does not respond to a notice pursuant to paragraph (o) of this section, within 15 calendar days of its receipt and satisfactory adjustments are not made within 45 calendar days of the date of the recipient's response; or

(ii) The DoD Component or the ASD (MRA&L) determines at any time within 90 days after the recipient receives a notice pursuant to paragraph (o) of this section, that, despite reasonable efforts, it is not likely that the recipient will comply promptly and voluntarily.

(5) If, pursuant to paragraph (p)(4) of this section, the DoD Component initiates enforcement action, it also shall continue its attempts to persuade the recipient to comply voluntarily.

(q) Imposing sanctions—(1) Sanctions available. If a DoD Component has taken action pursuant to paragraphs (o) and (p) of this section, the DoD Component may, by order, subject to paragraph (q)(2) and (q)(3) of this section:

(i) Terminate, suspend, or refuse to grant or continue assistance to such recipient.

(ii) Refer the case to the Department of Justice for the initation of enforcement proceedings at a Federal, State, or local level.

(iii) Pursue any remedies under State or local law.

(iv) Impose other sanctions upon consultation with the ASD (MRASL), or designee.

(2) Terminating, suspending, or refusing to grant or continue assistance. A DoD Component may not terminate or refuse to grant or continue Federal financial assistance unless:

(i) Such action has been approved by the Secretary of Defense.

(ii) The DoD Component has given the recipient an opportunity for a hearing pursuant to the procedures set out in paragraph (r) of this section, and a finding of noncompliance has resulted.

(iii) Thirty calendar days have elapsed since the Secretary of Defense has filed a written report describing the violation and action to be taken with the committees of the House of Representatives and Senate that have jurisdiction over the program or activity in which the violation of this part exists.

(iv) Such action is limited to affect only the particular activity or program, or portion thereof, of the recipient where the violation exists.

(3) Other sanctions. A DoD Component may not impose the sanctions set out in paragraphs (q)(1) (iii) and (iv) of this section, unless:

(i) The DoD Component has given the recipient an opportunity for a hearing pursuant to paragraph (r) of this section, and a finding of noncompliance has resulted.

(ii) The action has been approved by the Secretary of Defense.

(iii) Ten calendar days have elapsed since the mailing of a notice informing the recipient of its continuing failure to comply with this part the action necessary to achieve compliance, and the sanction to be imposed.

(iv) During those 10 calendar days the DoD Component has made additional efforts to persuade the recipient to comply.

(r) Hearings for recipients—(1) General. When, pursuant to paragraph (q)(2)(ii) of this section, an opportunity for a hearing is given to a recipient, the DoD Component involved shall follow the procedures prescribed in paragraphs (r)(2) through (r)(6) of this section.

(2) Notice. The DoD Component concerned shall notify the recipient of the opportunity for a hearing by registered or certified mail, return receipt requested, when the recipient denies a tentative finding of noncompliance with this part.

(i) The DoD Component shall ensure that the notice:

(A) Describes the proposed sanctions to be imposed.

(B) Cites the section of this part under which the proposed action is to be taken.

(C) States the name and office of the DoD Component official who is responsible for conducting the hearing (hereafter referred to as the “responsible DoD official”).

(D) Outlines the issues to be decided at the hearing.

(E) Advises the recipient either of a date, not less than 20 calendar days after the date that the notice is received, by which the recipient may request that the matter be scheduled for a hearing, or of a reasonable time and place of a hearing that is subject to change for good cause shown.

(ii) When a time and place for a hearing are set, the DoD Component shall give the recipient and the complainant, if any, reasonable notice of such time and place.

(3) Waiver of a hearing. A recipient may waive a hearing and submit to the responsible DoD official, in writing, information or arguments on or before the date stated pursuant to paragraph (r)(2)(i)(E) of this section.

(i) A recipient waives its right to a hearing if it fails to request a hearing on or before a date stated pursuant to paragraph (r)(2)(i)(E) of this section, or fails to appear at a hearing that has been scheduled pursuant to that paragraph.

(ii) If a recipient waives its right to a hearing under this section, the responsible DoD official shall decide the issues and render a final decision that is based on the information available and that conforms to the requirements of paragraph (s)(4) of this section.

(4) Hearing examiner. Hearings shall be conducted by the responsible DoD official or by a hearing examiner designated by the official, provided that the hearing examiner shall be a field grade officer or civilian employee above the grade of GS-12 (or the equivalent) who is admitted to practice law before a Federal court or the highest court of a State, territory, commonwealth, or the District of Columbia.

(5) Right to counsel. In all proceedings under this section, the recipient and the DoD Component may be represented by counsel. The representation of the recipient will not be at U.S. Government expense.

(6) Procedures. Hearings authorized under this section shall be subject to the following: (i) Hearings shall be open to the public.

(ii) Formal rules of evidence will not apply. The DoD Component concerned and the recipient shall be entitled to introduce all relevant evidence on the issues stated in the notice of hearing issued pursuant to paragraph (r)(2) of this section, and those designated by the responsible DoD official or the hearing examiner at the outset of or during the hearing. The responsible DoD official or hearing examiner, however, may exclude irrelevant, immaterial, or repetitious evidence.

(iii) All witnesses may be examined or cross-examined, as the case may be, by each party.

(iv) All parties shall have the opportunity to examine all evidence offered or admitted for the record.

(v) A transcript of the proceedings shall be maintained in either electronic or typewritten form and made available to all parties.

(s) Decisions—(1) Initial or proposed decisions by a hearing examiner. If a hearing is conducted by a hearing examiner who is designated by the responsible DoD official pursuant to paragraph (r)(4) of this section, the hearing examiner shall either:

(i) Make an initial decision, if so authorized, that conforms to the requirements of paragraph (s)(4) of this section; or

(ii) Certify the entire record and submit to the responsible DoD official recommended findings and a proposed decision.

(2) Review of initial decisions. Initial decisions made by a hearing examiner pursuant to paragraph (s)(1)(i) of this section, shall be reviewed as follows:

(i) A recipient may file exceptions to an initial decision within 30 calendar days of receiving notice of such initial decision. Reasons shall be stated for each exception.

(ii) If the recipient does not file exceptions pursuant to paragraph (s)(2)(i) of this section, the responsible DoD official may notify the recipient within 45 calendar days of the initial decision that the responsible DoD official will review the decisions.

(iii) If exceptions are filed pursuant to paragraph (s)(2)(i) of this section, or a notice of review is issued pursuant to paragraph (s)(2)(ii) of this section, the responsible DoD official shall review the initial decision and, after giving the recipient reasonable opportunity to file a brief or other written statement of its contentions, issue a final decision that addresses each finding and conclusion in the initial decision and each exception, if any.

(iv) If the exceptions described in paragraph (s)(2)(i) of this section are not filed and the responsible DoD official does not issue the notice of review described in paragraph (s)(2)(ii) of this section, the initial decision of the hearing examiner shall constitute the final decision of the responsible DoD official.

(3) Decisions by the responsible DoD official who conducts a hearing or receives a certified record. If a hearing examiner who is designated by the responsible DoD official certifies the entire record and submits recommended findings and a proposed decision to the responsible DoD official pursuant to paragraph (s)(1)(ii) of this section, or if the responsible DoD official conducts the hearing, after giving the recipient a reasonable opportunity to file a brief or other written statement of its contentions, the responsible DoD official shall render a final decision that conforms to paragraph (s)(4) of this section.

(4) Contents of decisions. Each decision of a hearing examiner or responsible DoD official shall state all findings and conclusions and identify each violation of this part. The final decision may contain an order pursuant to paragraph (q) of this section, providing for the suspension or termination of or refusal to grant or continue all or some of the Federal financial assistance under the program or activity involved and contain terms, conditions, and other provisions that are consistent with and intended to achieve compliance with this Directive.

(5) Notice of decisions and certifications. The responsible DoD official shall provide a copy of any certified record of a hearing and any initial or final decision to the recipient and the complainant, if any.

(6) Review by the Secretary of Defense. The responsible DoD official shall transmit promptly any final decision that orders a suspension, termination, or denial of Federal financial assistance through the ASD(MRA&L) to the Secretary of Defense. The Secretary may;

(i) Approve the decision;

(ii) Vacate the decision; or

(iii) Remit or mitigate any sanction imposed.

(t) Restoring eligibility for financial assistance. (1) A recipient that is affected adversely by a final decision issued under paragraph (s) of this section, may at any time request the responsible DoD official to restore fully its eligibility to receive Federal financial assistance.

(2) If the responsible DoD official determines that the information supplied by the recipient demonstrates that it has satisfied the terms and conditions of the order entered pursuant to paragraph (s) of this section, and that is complying with and has provided reasonable assurance that it will continue to comply with this part the responsible DoD official shall restore such eligibility immediately.

(3) If the responsible DoD official denies a request for restoration of eligibility, the recipient may submit a written request for a hearing that states why it believes the responsible DoD official erred in denying the request. Following such a written request, the recipient shall be given an expeditious hearing under rules of procedure issued by the responsible DoD official to determine whether the requirements described in paragraph (t)(2) of this section, have been met. While any such proceedings are pending, the sanctions imposed by the order issued under paragraph (s) of this section, shall remain in effect.

(u) Interagency cooperation and delegation. (1) When several recipients are receiving assistance for the same or similar purposes from a DoD Component and another Federal agency, the DoD Component shall notify the ASD (MRA&L), or designee. Such notification shall be in writing and shall contain:

(i) A description of the programs and activities involved.

(ii) A statement of the amount of money expended on the programs and activities in the previous and current fiscal year by the DoD Component and the agency.

(iii) A list of the known primary recipients.

(2) The ASD(MRA&L), or designee, shall attempt to negotiate with the Federal agency a written delegation agreement that designates the agency or the DoD Component as the primary agency for purposes of ensuring compliance with section 504 of Public Law 93-112, as amended, and this part depending upon which of them administers a larger financial assistance program with the common recipients and other relevant factors. If necessary, the agreement shall establish procedures to ensure the enforcement of section 504 of Public Law 93-112, as amended, and this part. The ASD(MRA&L), or designee, shall provide written notification to recipients of an agreement reached under this subsection.

(3) When several recipients are receiving assistance for the same or similar purposes from two or more DoD Components, the DoD Components may negotiate a proposed written delegation agreement that:

(i) Assigns responsibility for ensuring that the recipient complies with this part to one of the DoD Components.

(ii) Provides for the notification to recipients and the responsible program officials of the DoD Components involved of the assignment of enforcement responsibility.

(4) No delegation agreement reached in accordance with paragraph (u)(3) to this section shall be effective until it is approved by the ASD(MRA&L), or designee.

(5) When possible, existing delegation agreements relating to title VI of the Civil Rights Act of 1964 shall be amended to provide for the enforcement of this part.

(6) Any DoD Component conducting a compliance review or investigating a complaint of an alleged violation by a recipient shall notify any other affected agency or DoD Component through the ASD(MRA&L), or designee, upon discovery that the agency or DoD Component has jurisdiction over the program or activity in question and shall subsequently inform it of the finding made. Such reviews or investigations may be conducted on a joint basis.

(7) When a compliance review or complaint investigation under this part reveals a possible violation of Executive Order 11246, titles VI or VII of the Civil Rights Act of 1964, or any other Federal law, the DoD Component shall notify the appropriate agency, through the ASD(MRA&L), or designee.

(v) Coordination with sections 502 and 503. (1) DoD Components shall use DoD 4270.1-M and Department of the Army, Office of the Chief of Engineers, Manual EM 1110-1-103, in developing requirements for the accessibility of facilities. If DoD Components encounter issues with respect to section 502 of the Rehabilitation Act of 1973, as amended, that are not covered by these publications, the ASD(MRA&L), or designee, may be consulted. If necessary, the ASD(MRA&L), or designee, shall consult with the Architectural and Transportation Barriers Compliance Board in resolving such problems.

(2) DoD Components may advise recipients to consult directly with the Architectural and Transportation Barriers Compliance Board in developing accessibility criteria.

(3) DoD Components shall coordinate enforcement actions relating to the accessibility of facilities with the Architectural and Transportation Barriers Compliance Board and shall notify the ASD(MRA&L), or designee, of such coordination.

(4) If a recipient is also a Federal contractor subject to section 503 of the Rehabilitation Act of 1973, as amended, and the regulations thereunder (41 CFR part 60-741) and if a DoD Component has reason to believe that the recipient is in violation thereof, the DoD Component shall coordinate enforcement actions with the Department of Labor, Office of Federal Contract Compliance Programs. The DoD Component shall notify the ASD(MRA&L), or designee, of such coordination.

(a) Supplementary guidelines. (1) Whenever necessary, the ASD(MRA&L), or designee, shall publish supplementary guidelines for programs and activities that are conducted by DoD Components and that are subject to this Directive. Prior to their issuance, the ASD(MRA&L), or designee, shall submit supplementary guidelines prepared pursuant to this subsection to the Coordination and Review Section, Civil Rights Division, Department of Justice, for review.

(2) The heads of DoD Components, or designees, shall be responsible for keeping the supplementary guidelines described in this section current and accurate. When a DoD Component head determines that a program or activity should be added to or deleted from the guidelines, that official shall notify the ASD(MRA&L), or designee, in writing.

(b) Staff responsibilities. The ASD(MRA&L), or designee, shall determine DoD Component compliance with this part as it pertains to programs and activities that are conducted by DoD Components and are subject to this part.

(c) Filing of complaints. (1) Complaints of discrimination in a program or activity conducted by a DoD Component may be filed directly with the ASD(MRA&L), or designee.

(2) DoD Components shall develop procedures, such as posters or other devices, to notify participants in the programs and activities listed in § 56.7(c) of their right to be free of discrimination because of handicap in those programs and activities and of their right to file complaints of discrimination with the ASD(MRA&L), or designee.

(d) Investigations of complaints. (1) The ASD(MRA&L), or designee, shall investigate complaints of discrimination in programs and activities that are conducted by DoD Components and are subject to this part.

(2) A case record of each investigation shall be compiled in accordance with § 56.9(j)(2).

(e) Results of investigations. If the complaint investigation results in a determination by the ASD(MRA&L), or designee, that a DoD Component's program or activity is not complying with § 56.9, the ASD(MRA&L), or designee, shall proceed as prescribed in § 56.9 (n) through (v). Hearings prescribed under § 56.9(r) however, need not be conducted. If the ASD(MRA&L), or designee, determines that the DoD Component is in compliance, the ASD(MRA&L), or designee, shall notify the complainant within 15 calendar days of such determination.

(f) Written notice. If an investigative report concludes that there has been a violation of this part in a program or activity conducted by a DoD Component and the ASD(MRA&L), or designee, accepts that conclusion, that official shall issue to the head of the DoD Component a written notice describing the apparent violation, the corrective actions necessary to achieve compliance, and a suspense date for completion of the corrective actions.

(g) Effecting compliance. When necessary to overcome the effects of discrimination in violation of this part the ASD(MRA&L), or designee, may require a DoD Component to take remedial action similar to that in § 56.9(n)(2).

(h) Employment. DoD Components that conduct Federal programs or activities covered by this part that involve employment of civilian persons to conduct such a program or activity must comply with section 501 of the Rehabilitation Act of 1973, as amended, and the implementing rules and regulations of the EEOC.

This part:

(a) Implement policy and update responsibilities and procedures under 20 U.S.C. 921-932, 20 U.S.C. 1400 et seq., DoD Directive 1342.6 1 , and DoD Directive 1342.13 2 for providing the following:

(1) A free appropriate public education (FAPE) for children with disabilities who are eligible to enroll in the Department of Defense Dependent Schools (DoDDS).

(2) Early intervention services for infants and toddlers birth through age 2 years who, but for their age, would be eligible to enroll in the DoDDS under DoD Directive 1342.13.

(3) A comprehensive and multidisciplinary program for early intervention services for infants and toddlers with disabilities and their families.

(b) Establishes a National Advisory Panel (NAP) on Education for Children with Disabilities, ages 3 to 21, inclusive, and a DoD Inter-Component Council (ICC) on Early Intervention, in accordance with DoD Directive 5105.4 3 .

(c) Establishes a DoD Coordinating Committee (DoD-CC) on Early Intervention, Special Education, and Medically Related Services (MRS).

(d) Authorizes implementing instructions consistent with DoD 5025.1-M 4 , and DoD forms consistent with DoD 83201-M 5 , DoD 8910.1-M 6 , and DoD Instruction 7750.7 7 .

This part:

(a) Applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Unified Combatant Commands, the Inspector General of the Department of Defense, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”).

(b) Does not apply to schools operated by the Department of defense in the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Marianna Islands, and the possessions of the United States (excluding the Trust Territory of the Pacific Islands and Midway Islands).

(c) Applies to infants, toddlers, and children receiving or entitled to receive early intervention services or special educational instruction and related services from the Department of Defense, and their parents.

Area superintendent. The Superintendent of a DoDDS area, or designee.

Assessment. Techniques, procedures, and/or instruments used to measure the individual components of an evaluation.

Assistive technology device. Any item, piece of equipment, or product system that is used to increase, maintain, or improve functional capabilities of children with disabilities.

Assistive technology service. Any service that directly assists an individual with a disability in the selection, acquisition, or use of an assistive technology device. That term includes the following:

(1) The evaluation of the needs of an individual with a disability, including a functional evaluation in the individual's customary environment.

(2) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by individuals with disabilities.

(3) Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices.

(4) Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing educational and rehabilitative plans and programs.

(5) Training or technical assistance for an individual with disabilities, or, the family of an individual with disabilities.

(6) Training or technical assistance for professionals (including individuals providing educational rehabilitative services), employers, or other individuals who provide services to employ, or are otherwise substantially involved in the major life functions of an individual with a disability.

Audiology. A service that includes the following:

(1) Identification of children with auditory impairments.

(2) Determination of the range, nature, and degree of hearing loss, and communication functions including referral for medical or other professional attention for the habilitation of hearing.

(3) Provision of habilitative activities, such as language habilitation, auditory training, speech-reading (lip-reading), hearing evaluation, and speech conservation.

(4) Creation and administration of programs for the prevention of hearing loss.

(5) Counseling and guidance of pupils for the prevention of hearing loss.

(6) Determination of the child's need for group and individual amplification, selecting and fitting an aid, and evaluating the effectiveness of amplification.

Autism. A development disability significantly affecting verbal and nonverbal communication and social interaction generally evident before age 3 that adversely affects educational performance. That term does not include a child with characteristics of the disability termed “serious emotional disturbance.”

Case study committee (CSC). (1) A school-level team comprised of, among others, the principal, other educators, parents, and MRS providers who do the following:

(i) Oversee screening and referral of children who may require special education.

(ii) Oversee the multidisciplinary evaluation of such children.

(iii) Determine the eligibility of the student for special education and related services.

(iv) Formulate an individualized education curriculum reflected in an Individualized Education Program (IEP), in accordance with this part.

(v) Monitor the development, review, and revision of IEPs.

(2) In addition to the required members of the CSC, other membership will vary depending on the purpose of the meeting. An area CSC, appointed by the DoDDS Area Superintendent, acts in the absence of a school CSC. Members of an area CSC may be assigned to augment a school CSC. The area CSC must have at least two members besides the parent. One of the DoDDS members must have the authority to commit DoDDS resources; one shall be qualified to provide, or supervise the provision of special education. Other members may be selected from the following groups:

(i) DoDDS regular education personnel.

(ii) DoDDS special education personnel.

(iii) MRS personnel.

Child-find. The ongoing process used by the DoDDS, the Military Departments, and the other DoD Components to seek and identify children from birth to age 21, inclusive, who may require early intervention services or special education and related services. Child-find activities include the dissemination of information to the public, the identification and screening of children, and the use of referral procedures.

Children with disabilities (ages 3 To 21, inclusive). Children, before graduation from high school or completion of the General Education Degree, who have one or more impairments, as determined by a CSC and who need special education and related services.

Consent. That term means the following:

(1) The parent is fully informed of all information about the activity for which consent is sought in the native language or in another mode of communication, if necessary.

(2) The parent understands and agrees in writing to the implementation of the activity for which permission is sought. That consent describes the activity, lists the child's records (if any) to be released outside the Department of Defense, and specifies to whom the records shall be sent. The signed consent acknowledges the parent's understanding that the parental consent is voluntary and may be revoked at any time.

Counseling service. A service provided by a qualified social worker, psychologist, guidance counselor, or other qualified personnel.

Deaf-blindness. Concomitant hearing and visual impairments. That disability causes such severe communication, developmental, and educational problems that it cannot be accommodated in special education programs solely for children with deafness or blindness.

Deafness. A severe hearing loss or deficit that impairs a child's ability to process linguistic information through hearing, with or without amplification, and affects the educational performance adversely.

Developmental delay. That term means the following:

(1) A significant discrepancy in the actual functioning of an infant, toddler, or child, birth through age 5, when compared with the functioning of a nondisabled infant, toddler, or child of the same chronological age in any of the following areas: physical, cognitive, communication, social or emotional, and adaptive developmental as measured using standardized evaluation instruments and confirmed by clinical observation and judgment.

(2) High probability for developmental delay. An infant or toddler, birth through age 2, with a diagnosed physical or mental condition, such as chromosomal disorders and genetic syndromes, that places the infant or toddler at substantial risk of evidencing a developmental delay without the benefit of early intervention services.

Early identification. The implementation of a formal plan for identifying a disability as early as possible in a child's life.

Early intervention services. (1) Developmental services that meet the following criteria:

(i) Are provided under the supervision of a Military medical Department.

(ii) Are provided using Military Health Services System resources at no cost to the parents. Parents may be charged in those instances where Federal law provides for a system of payments by families including a schedule of sliding fees, if any, (and incidental fees identified in Service guidance) that are normally charged to infants, toddlers, and children without disabilities or to their parents.

(iii) Are designed to meet the developmental needs of an infant or toddler with a disability in any one or more of the following areas:

(A) Physical.

(B) Cognitive.

(C) Communication.

(D) Social or emotional.

(E) Adaptive development.

(iv) Meet the standards developed or adopted by the Department of Defense.

(v) Are provided by qualified personnel including early childhood special educators, speech and language pathologists and audiologists, occupational therapists, physical therapists, psychologists, social workers, nurses, nutritionists, family therapists, orientation and mobility specialists, and pediatricians and other physicians.

(vi) Maximally, are provided in natural environments including the home and community settings where infants and toddlers without disabilities participate.

(vii) Are provided in conformity with an Individualized Family Service Plan (IFSP).

(2) Developmental services include, but are not limited to, the following services: family training, counseling, and home visits; special instruction; speech pathology and audiology; occupational therapy; physical therapy; psychological services; service coordination services; medical services only for diagnostic or evaluation purposes; early identification, screening and assessment services; vision services; and social work services. Also included are assistive technology devices and assistive technology services; health services necessary to enable the infant or toddler to benefit from the above early intervention services; and transportation and related costs necessary to enable an infant or toddler and the family to receive early intervention services.

Eligible. The term refers to children who meet the age, command sponsorship, and dependency requirements established by the DDEA, as amended, 20 U.S.C. 921 et seq. and DoD Directive 1342.13. When those conditions are met, children without disabilities, ages 5 to 21, and children with disabilities, ages 3 to 21, inclusive, are authorized to receive educational instruction from the DoDDS. Additionally, an eligible infant or toddler with disabilities is a child from birth through age 2 years who meets all of the DoDDS eligibility requirements except for the age requirement. In school year 1994 through 1995, multidisciplinary assessments, IFSPs, and case management services shall be required and beginning in school year 1995 through 1996, an eligible infant or toddler is entitled to receive early intervention services, in accordance with 20 U.S.C. 1400 et seq.

Evaluation. The synthesis of assessment information by a multidisciplinary team used to determine whether a particular child has a disability, the type and extent of the disability, and the child's eligibility to receive early intervention or special education and/or related services.

Family training, counseling, and home visits. Services provided by social workers, psychologists, and other qualified personnel to assist the family of an infant or toddler eligible for early intervention services. Those services assist a family in understanding the special needs of the child and enhancing the child's development.

Free appropriate public education (FAPE). Special education and related services that do the following:

(1) Are provided at no cost to parents of a child with a disability, and are under the general supervision and direction of the DoDDS.

(2) Are provided in the least restrictive environment at a preschool, elementary, or secondary school.

(3) Are provided in conformity with an IEP.

(4) Meet the requirements of this part.

Functional vocational evaluation. A student-centered appraisal process for vocational development and career decision making. It allows students, educators, and others to gather information about such development and decision making. Functional vocational evaluation activities for transitional, vocational, and career planning; instructional goals; objectives; and implementation.

Health services. Services necessary to enable an infant or toddler to benefit from the other early intervention services being received under this part. That term includes the following:

(1) Services such as clean intermittent catheterization, tracheotomy care, tube feeding, changing of dressings or colostomy collection bags, and other health services.

(2) Consultation by physicians with other service providers about the special healthcare needs of infants and toddlers with disabilities that shall need to be addressed in the course of providing other early intervention services.

(3) That term does not include the following:

(i) Services that are surgical or solely medical.

(ii) Devices necessary to control or treat a medical condition.

(iii) Medical or health services routinely recommended for all infants or toddlers.

Hearing impairment. An impairment in hearing, whether permanent or fluctuating, which adversely affects a child's educational performance, but is not included under deafness.

Independent evaluation. An evaluation conducted by a qualified examiner who is not employed by the DoDDS.

Individualized education program (IEP). A written document defining specially designed instruction for a student with a disability, ages 3 to 21, inclusive. That document is developed and implemented, in accordance with this part.

Individualized family service plan (IFSP). A written document for an infant or toddler, age birth through 2, with a disability and the family of such infant or toddler that is based on a multidisciplinary assessment of the unique needs of the child and concerns and priorities of the family, and identifies the early intervention and other services appropriate to meet such needs, concerns, and priorities.

Infants and toddlers with disabilities. Children, ages birth through 2, who need early intervention services because they:

(1) Are experiencing a developmental delay; or,

(2) Have a diagnosed physical or mental condition that has high probability of resulting in a developmental delay.

Inter-component. Cooperation among DoD organizations and programs, ensuring coordination and integration of services to infants, toddlers, children with disabilities and to their families.

Medical services. Those evaluative, diagnostic, therapeutic, and supervisory services provided by a licensed and /or credentialed physician to assist CSCs and to implement IEPs. Medical services include diagnosis, evaluation, and medical supervision of related services that, by statute, regulation, or professional tradition, are the responsibility of a licensed and credentialed physician.

Medically related services. (1) Medical services (as defined in definition “Medical services”) are those services provided under professional medical supervision, which are required by a CSC to determine a student's eligibility for special education and, if the student is eligible, the special education and related services required by the student under this part.

(2) Direct or indirect services under the development or implementation of an IEP necessary for the student to benefit from the educational curriculum. Those services may include medical services for diagnostic or evaluative purpose, social work, community health nursing, dietary, occupational therapy, physical therapy, audiology, ophthalmology, and psychological testing and therapy.

Meetings. All parties attending a meeting to determine eligibility or placement of a child shall appear personally at the meeting site on issuance of written notice and establishment of a date convenient to the concerned parties. When a necessary participant is unable to attend, electronic communication suitable to the occasion may be used to involve the unavailable party. Parents generally shall be responsible for the cost of travel to personally attend meetings about the eligibility or placement of their child.

Mental retardation. Significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior. That disability is manifested during the developmental period and adversely affects a child's educational performance.

Multidisciplinary. The involvement of two or more disciplines or professions in the integration and coordination of services, including evaluation and assessment activities, and development of an IFSP or an IEP.

Native language. When used with reference to an individual of limited English proficiency, the home language normally used by such individuals, or in the case of a child, the language normally used by the parent of the child.

Natural environments. Settings that are natural or normal (e.g., home or day care setting) for the infant, toddler, or child's same-age peers who have no disability.

Non-DoDDS placement. An assignment by the DoDDS of a child with a disability to a non-DoDDS school or facility.

Non-DoDDS school or facility. A public or private school or other institution not operated by the DoDDS.

Nutrition services. Those services to infants and toddlers include the following:

(1) Conducting individual assessments in nutritional history and dietary intake; anthropometric, biochemical, and clinical variables; feeding skills and feeding problems; and food habits and food preferences.

(2) Developing and monitoring plans to address the nutritional needs of infants and toddlers eligible for early intervention services.

(3) Making referrals to community resources to carry out nutrition goals.

Occupational therapy. That term includes services to address the functional needs of children (birth to age 21, inclusive) related to adaptive development; adaptive behavior and play; and sensory, motor, and postural development. Those services are designed to improve the child's functional ability to perform tasks in home, school, and community settings, and include the following:

(1) Identification, assessment, and intervention.

(2) Adaption of the environment and selection, design, and fabrication of assistive and orthotic devices to help development and promote the acquisition of functional skills.

(3) Prevention or minimization of the impact of initial or future impairment, delay in development, or loss of functional ability.

Orthopedic impairment. A severe physical impairment that adversely affects a child's educational performance. That term includes congenital impairments such as club foot or absence of some member; impairments caused by disease, such as poliomyelitis and bone tuberculosis, and impairments from other causes such as cerebra palsy, amputations, and fractures or burns causing contractures.

Other health impairment. Limited strength, vitality, or alterness due to chronic or acute health problems that adversely affect a child's educational performance. Such impairments include heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, seizure disorder, lead poisoning, leukemia, diabetes, or attention deficit disorder.

Parent. The biological father or mother of a child; a person who, by order of a court of competent jurisdiction, has been declared the father or mother of a child by adoption; the legal guardian of a child; or a person in whose household a child resides, if such person stands in loco parentis to that child and contributes at least one-half of the child's support.

Parent counseling and training. A service to assist parents in understanding the special needs of their child's development and by providing them with information on child development and special education.

Personally identifiable information. Information that would make it possible to identify the infant, toddler, or child with reasonable certainty. Examples include name, parent's name, address, social security number, or a list of personal characteristics.

Physical therapy. That term includes services to children (birth to age 21, inclusive) to address the promotion of sensorimotor function through enhancement of musculoskeletal status, neurobehavioral organization, perceptual and motor development, cardiopulmonary status, and effective environmental adaption. Those services include the following:

(1) Screening, evaluation, and assessment to identify movement dysfunction.

(2) Obtaining, interpreting, and integrating information to appropriate program planning to prevent, alleviate, or compensate for movement dysfunction and related functional problems.

(3) Providing individual and group services or treatment to prevent, alleviate, or compensate for movement dysfunction and related functional problems.

Primary referral source. Parents and the DoD Components, including child development centers, pediatric clinics, and newborn nurseries, that suspect an infant or toddler has a disability and brings the child to the attention of the EIP.

Psychological services. A service that includes the following:

(1) Administering psychological and educational tests and other assessment procedures.

(2) Interpreting test and assessment results.

(3) Obtaining, integrating, and interpreting information about a child's behavior and conditions to learning.

(4) Consulting with other staff members, including service providers, to plan programs to meet the special needs of children, as indicated by psychological tests, interviews, and behavioral evaluations.

(5) Planning and managing a program of psychological services, including psychological counseling for children and parents, family counseling, consultation on child development, parent training, and education programs.

Public awareness program. Activities or print materials focusing on early identification of infants and toddlers with disabilities. Materials may include information prepared and disseminated by a military medical department to all primary referral sources and information for parents on the availability of early intervention services. Procedures to determine the availability of information on early intervention services to parents are also included in that program.

Qualified. A person who meets the DoD-approved or recognized certification, licensing, or registration requirements or other comparable requirements in the area in which the person provides special education or related services or early intervention services to an infant, toddler, or child with a disability.

Recreation. A related service that includes the following.

(1) Assessment of leisure activities.

(2) Therapeutic recreational activities.

(3) Recreational programs in schools and community agencies.

(4) Leisure education.

Rehabilitation counseling. Services provided by a rehabilitation counselor or other qualified personnel in individual or group sessions that focus specifically on career development, employment preparation, achieving independence, and integration in the workplace and community of the student with a disability.

Related services. Transportation and such developmental, corrective, and other supportive services as required to assist a child, age 3 to 21, inclusive, with a disability to benefit from special education under the child's IEP. The term includes speech therapy and audiology, psychological services, physical and occupational therapy, recreation, early identification and assessment of disabilities in children, counseling services, and medical services for diagnostic or evaluative purposes. That term also includes rehabilitation counseling services, school health services, social work services in schools, and parent counseling. The sources for those services are school, community, and medical treatment facilities (MTFs).

School health services. Services provided by a qualified school nurse or other qualified person.

Separate facility. A school or a portion of a school, regardless of whether it is operated by the DoDDS, attended exclusively by children with disabilities.

Serious emotional disturbance. A condition confirmed by clinical evaluation and diagnosis and that, over a long period of time and to a marked degree, adversely affect educational performance, and exhibits one or more of the following characteristics:

(1) Inability to learn that cannot be explained by intellectual, sensory, or health factors.

(2) Inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

(3) Inappropriate types of behavior under normal circumstances.

(4) A tendency to develop physical symptoms or fears associated with personal or school problems.

(5) A general pervasive mood of unhappiness or depression. Includes children who are schizophrenic, but does not include children who are socially maladjusted unless it is determined they are seriously emotionally disturbed.

Service coordination. Activities of a service coordinator to assist and enable an infant or toddler and the family to receive the rights, procedural safeguards, and services that are authorized to be provided under the DoD EIP. Those activities include the following:

(1) Coordinating the performance of evaluation and assessments.

(2) Assisting families to identify their resources, concerns, and priorities.

(3) Facilitating and participating in the development, review, and evaluation of IFSPs.

(4) Assisting in identifying available service providers.

(5) Coordinating and monitoring the delivery of available services.

(6) Informing the family of support or advocacy services.

(7) Coordinating with medical and health providers.

(8) Facilitating the development of a transition plan to preschool services.

Service provider. Any individual who provides services listed in an IEP or an IFSP.

Social work services in schools. A service that includes the following:

(1) Preparing a social or developmental history on a child with a disability.

(2) Counseling a child and the family on a group or individual basis.

(3) Working with those problems in a child's home, school, or community that adversely affect adjustment in school.

(4) Using school and community resources to enable a child to receive maximum benefit from the educational program.

Special education. Instruction and related services for which a child, age 3 to 21, inclusive, becomes entitled when a CSC determines a child's educational performance is adversely affected by one or more disabling conditions.

(1) Special education is specially designed instruction, including physical education, which is provided at no cost to the parent or guardians to meet the unique needs of a child with a disability, including instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings.

(2) That term includes speech therapy or any other related service if the service consists of specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability.

(3) That term also includes vocational education if it consists of specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability.

(4) At no cost. For a child eligible to attend the DoDDS without paying tuition, specially designed instruction and related services are provided without charge. Incidental fees normally charged to nondisabled students or their parents as a part of the regular educational program may be imposed.

(5) Physical education. The development of the following:

(i) Physical and motor fitness.

(ii) Fundamental motor skills and patterns.

(iii) Skills in aquatics, dance, and individual and group games and sports, including intramural and lifetime sports.

(iv) A program that includes special physical education, adapted physical education, movement education, and motor development.

(6) Vocational education. Organized educational programs for the preparation of individuals for paid or unpaid employment or for additional preparation for a career requiring other than a baccalaureate or advanced degree.

Special instruction. That term includes the following:

(1) The design of learning environments and activities to promote acquisition of skills in a variety of developmental areas, including cognitive processes and social interaction.

(2) Curriculum planning, including the planned interaction of personnel, materials, time, and space, that leads to achieving the outcomes in an IEP or an IFSP.

(3) Providing families with information, skills, and support to enhance skill development.

(4) Working with a child to enhance development and cognitive processes.

Specific learning impairment. A disorder in one or more of the basic psychological processes involved in understanding or in using spoken or written language that may manifest itself as an imperfect ability to listen, think, speak, read, write, spell, remember, or do mathematical calculations. That term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. The term, commonly called, “specific learning disability,” does not include learning problems that are primarily the result of visual, hearing, or motor disabilities; mental retardation; emotional disturbance; or environmental, cultural, or economic differences.

Speech and language impairments. A communication disorder, such as stuttering, impaired articulation, voice impairment, or a disorder in the receptive or expressive areas of language that adversely affects a child's educational performance.

Speech therapy. That related service includes the following:

(1) Identification of children with communicative or oropharyngeal disorders and delays in development of communication skills.

(2) Diagnosis and appraisal of specific speech or language impairments.

(3) Referral for medical or other professional attention to correct or habilitate speech or language impairments.

(4) Provision of speech and language services for the correction, habilitation, and prevention of communicative impairments.

(5) Counseling and guidance of children, parents, and teachers for speech and language impairments.

Transition services. That term means the following:

(1) A coordinated set of activities for a student that may be required to promote movement from early intervention, preschool, and other educational programs into different educational settings or programs.

(2) For students 14 years of age and older, transition services are designed in an outcome-oriented process which promotes movement from school to postschool activities; including, post-secondary education, vocational training, integrated employment; and including supported employment, continuing and adult education, adult services, independent living, or community participation. The coordinated set of activities shall be based on the individual student's needs, considering the student's preferences and interests, and shall include instruction, community experiences, the development of employment and other postschool adult living objectives, and acquisition of daily living skills and functional vocational evaluation.

Transportation. A service that includes the following:

(1) Services rendered under the IEP of a child with a disability:

(i) Travel to and from school and between schools, including travel necessary to permit participation in educational and recreational activities and related services.

(ii) Travel in and around school buildings.

(iii) Specialized equipment, including special or adapted buses, lifts, and ramps, if required to provide transportation for a child with a disability.

(2) Transportation and related costs for early intervention services include the cost of travel (e.g., mileage or travel by taxi, common carrier, or other means) and other costs (e.g., tolls and parking expenses) that are necessary to enable an eligible child and the family to receive early intervention services.

Traumatic brain injury. An acquired injury to the brain caused by an external physical force resulting in total or partial functional disability or psychosocial impairment that adversely affects educational performance. That term includes open or closed head injuries resulting in mild, moderate, or severe impairments in one or more areas including cognition, language, memory, attention, reasoning, abstract thinking, judgment, problem solving, sensory, perceptual and motor abilities, psychosocial behavior, physical function, information processing, and speech. That term does not include brain injuries that are congenital or degenerative, or brain injuries that are induced by birth trauma.

Vision services. Services necessary to habilitate or rehabilitate the effects of sensory impairment resulting from a loss of vision.

Visual impairment. An impairment of vision that, even with correction, adversely affects a child's educational performance. That term includes both partially seeing and blind children.

It is DoD policy that:

(a) Eligible infants and toddlers with disabilities and their families shall be entitled to receive early intervention services consistent with Appendix A to this part.

(b) Eligible children with disabilities, ages 3 to 21, inclusive, shall be provided a FAPE in the least restrictive environment, consistent with Appendix B to this part.

(c) Parents of eligible infants, toddlers, and children with disabilities from birth to age 21, inclusive, shall be full participants in early intervention and special education services.

(a) The Under Secretary of Defense for Personnel and Readiness shall:

(1) Establish a NAP consistent with Appendix C to this part.

(2) Establish and chair, or designate a “Chair,” of the DoD-CC on Early Intervention, Special Education, and MRS consistent with Appendix D to this part.

(3) Establish and chair, or designate a “Chair,” of the DoD Inter-Component Coordinating Council (ICC) on Early Intervention consistent with Appendix E to this part.

(4) Ensure compliance with this part in the provision of early intervention services, special education, and related services through the DoD-CC, in accordance with DoD Instruction 1342.14 8 and other appropriate guidances.

(5) In consultation with the General Counsel of the Department of Defense (GC, DoD) and the Secretaries of the Military Departments, do the following:

(i) Ensure that eligible infants and toddlers with disabilities and their families are provided early intervention services under 20 U.S.C. 921 et seq. and 1400 et seq.

(ii) Ensure the coordination of early intervention, special education, and related services.

(iii) Ensure the development of a DoD-wide comprehensive child-find system to identify eligible infants, toddlers, and children ages birth to age 21, inclusive, under 20 U.S.C 921 et seq. and 1400 et seq. who may require early intervention or special education services.

(iv) Ensure that DoD personnel are trained to provide the mediation services specified in Appendix F to this part.

(v) Ensure that transition services are available to promote movement from early intervention, preschool, and other educational programs into different educational settings and postsecondary environments.

(vi) Ensure that DoD personnel who provide services (e.g., child care, medical care, and recreation) to infants and toddlers and their families are participants in a comprehensive inter-Component system for early intervention services.

(vii) Assign functions and geographic regions of responsibility to the Military Departments for providing MRS and early intervention services.

(viii) Ensure that the Military Departments deliver the following:

(a) The procedures for early intervention services for infants and toddlers with disabilities and their families are prescribed in Appendix A to this part.

(b) The procedures for educational programs and services for children with disabilities, ages 3 to 21, inclusive, are prescribed in Appendix B to this part.

(c) The procedures for conducting hearings are prescribed in Appendix F to this part.

This part supersedes Deputy Secretary of Defense Memorandum, “Policy on Identification, Surveillance, and Administration of Personnel Infected with Human Immunodeficiency Virus (HIV),” August 4, 1988, Deputy Secretary of Defense Memorandum, “Recommendations for Revision of DoD Human Immunodeficiency Virus (HIV) Policies,” March 8, 1988, Assistant Secretary of Defense (Health Affairs) Memorandum, “Policy on Clinical Evaluation, Staging and Disease Coding of Military Personnel Infected with Human Immunodeficiency Virus (HIV),” September 11, 1987, Assistant Secretary of Defense (Health Affairs) Memorandum, “The DoD HTLV-III Testing Program,” December 5, 1985, Assistant Secretary of Defense (Health Affairs) Memorandum, “Military Implementation of Public Health Service Provisional Recommendations Concerning Testing Blood and Plasma for Antibodies to HTLV-III,” July 17, 1985, to update policy, responsibilities, and procedures on identification, surveillance, and administration of civilian and military personnel infected with HIV-1.

This part applies to the Office of the Secretary of Defense, the Military Departments (including their Reserve components), the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Unified and Specified Commands, and the Defense Agencies (hereafter referred to collectively as “the DoD Components”). The term “Military Services,” as used herein, refers to the Army, the Navy, the Air Force, and the Marine Corps.

(a) Human Immunodeficiency Virus-1 (HIV-1). The virus most commonly associated with the Acquired Immune Deficiency Syndrome (AIDS) in the United States.

(b) HIV-1 and/or AIDS Education Program. Any combination of information, education, and behavior-change strategies designed to facilitate behavioral alteration that will improve or protect health. Included are those activities intended to support or influence individuals in managing their own health through lifestyle decisions and self-care. Operationally, such programs include community, worksite, and clinical aspects using appropriate public health education methodologies.

(c) Serologic Evidence of HIV-1 Infection. A reactive result given by a Food and Drug Administration (FDA)-approved enzyme-linked immunosorbent assay (ELISA) serologic test that is confirmed by a reactive and diagnostic immunoelectrophoresis test (Western blot (WB)) test on two separate samples.

(d) Host Nation. A foreign nation to which DoD U.S. civilian employees are assigned to perform their official duties.

(e) DoD Civilian Employees. Current and prospective DoD U.S. civilian employees, including appropriated and nonappropriated fund personnel. This does not include members of the family of DoD civilian employees, employees of, or applicants for, positions with contractors performing work for the Department of Defense, or their families.

(f) Epidemiological Assessment. The process by which personal and confidential information on the possible modes of transmission of HIV-1 are obtained from an HIV-1 infected person. This information is used to determine if previous, present, or future contacts of the infected individual are at risk for infection with HIV-1 and to prevent further transmission of HIV-1.

It is DoD policy to:

(a) Deny eligibility for appointment or enlistment for Military Service to individuals with serologic evidence of HIV-1 infection.

(b) Screen active duty (AD) and Reserve component military personnel periodically for serologic evidence of HIV-1 infection.

(c) Refer AD personnel with serologic evidence of HIV-1 infection for a medical evaluation of fitness for continued service in the same manner as personnel with other progressive illnesses, as specified in DoD Directive 1332.18.1 Medical evaluation shall be conducted in accordance with the standard clinical protocol, as described in the Standard Clinical Protocol.2 Individuals with serologic evidence of HIV-1 infection who are fit for duty shall not be retired or separated solely on the basis of serologic evidence of HIV-1 infection. AD personnel with serological evidence of HIV-1 infection or who are ELISA repeatedly reactive, but WB negative or indeterminate, shall be advised to refrain from donating blood.

(d) Deny eligibility for extended AD (duty for a period of more than 30 days) to those Reserve component members with serologic evidence of HIV-1 infection (except under conditions of mobilization and on the decision of the Secretary of the Military Department concerned). Reserve component members who are not on extended AD or who are not on extended full-time National Guard duty, and who show serologic evidence of HIV-1 infection, shall be transferred involuntarily to the Standby Reserve only if they cannot be utilized in the Selected Reserve.

(e) Retire or separate AD or Reserve Service members infected with HIV-1 who are determined to be unfit for further duty, as implemented in DoD Directive 1332.18.

(f) Ensure the safety of the blood supply through policies of the Head of the Armed Services Blood Program Office, the FDA guidelines, and the accreditation requirements of the Head of the American Association of Blood Banks.

(g) Comply with applicable statutory limitations on the use of the information obtained from a Service member during, or as a result of, an epidemiologic assessment interview and the results obtained from laboratory tests for HIV-1, as provided in this part.

(h) Control transmission of HIV-1 through an aggressive disease surveillance and health education program.

(i) Provide education and voluntary HIV-1 serologic screening for DoD healthcare beneficiaries (other than Service members).

(j) Comply with host-nation requirements for HIV-1 screening of DoD civilian employees, as described in appendix B to this part.

(a) The Assistant Secretary of Defense (Health Affairs), in coordination with the Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)), the General Counsel of the Department of Defense (GC, DoD), and the Assistant Secretary of Defense (Reserve Affairs), is responsible for establishing policies, procedures, and standards for the identification, surveillance, and administration of personnel infected with HIV-1. The Assistant Secretary of Defense (Health Affairs) (ASD(HA)) shall provide overall policy guidance and approval for the HIV-1 and/or AIDS education and information efforts and shall establish the HIV-1 and/or AIDS Information and Education Coordinating Committee.

(b) The Secretaries of the Military Departments shall establish Service policies, procedures, and standards for the identification, surveillance, education, and administration of personnel infected with HIV-1, based on and consistent with all sections of this part.

(c) The Assistant Secretary of Defense (Force Management and Personnel) shall establish and revise policies governing HIV-1 screening of DoD civilian employees assigned to, performing official travel in, or deployed on ships with ports of call at host nations, in coordination with the ASD(HA), the Assistant Secretary of Defense (International Security Affairs), and the GC, DoD.

(d) The Assistant Secretary of Defense (International Security Affairs) shall identify or confirm host-nation HIV-1 screening requirements for DoD civilians, transmit this information to the ASD(FM&P), and coordinate requests for screening with the Secretary of State.

(e) The Heads of the DoD Components shall implement HIV-1 screening policies and procedures for DoD civilian employees identified in § 58.5(c) and shall take the following actions:

(1) Report newly established host-nation HIV-1 screening requirements to the ASD(FM&P) and provide sufficient background information to support a decision. This reporting requirement is exempt from licensing, in accordance with DoD 7750.5-M,3 paragraph E.4.b.

(2) Develop and distribute policy implementing instructions.

(3) Establish procedures to notify individuals who are evaluated as HIV-1 seropositive and provide initial counseling to them.

(a) Applicants for Military Service and, periodically, AD and Reserve component military personnel shall be screened for serologic evidence of HIV-1 infection. Testing and interpretation of results shall be in accordance with the procedures in HIV-1 Testing and Interpretation of Results.4 Test results shall be reported to the Reportable Disease Data Base, as described in the ASD(HA) Memorandum.

(b) Applicants for enlisted service shall be screened at the Military Entrance Processing Stations or the initial point of entry to Military Service. Applicants who enlist under a delayed enlistment program, but before entry on AD and who exhibit serologic evidence of HIV-1 infection, may be discharged due to erroneous enlistment.

(c) Officer candidates shall be screened during their preappointment and/or precontracting physical examination. The disposition of officer applicants who are ineligible for appointment due to serologic evidence of HIV-1 infection shall be in accordance with the procedures in appendix A of this part.

(d) Applicants for Reserve components shall be screened during the normal entry physical examinations or in the preappointment programs established for officers. Those individuals with serologic evidence of HIV-1 infection who are required to meet accession medical fitness standards to enlist, or be appointed, are not eligible for Military Service with the Reserve components.

(e) Initial testing and periodic retesting of AD and Reserve component personnel shall be accomplished in the priority listed in Disease Surveillance and Health Education.5

(f) AD personnel (including Active Guard and/or Reserve) who exhibit serologic evidence of HIV-1 infection shall receive a medical evaluation. Guard and Reserve personnel, not on extended AD, must obtain a medical evaluation from a civilian physician.

(g) The Head of each Military Service shall appoint an HIV-1 and/or AIDS education program coordinator to serve as the focal point for all HIV-1 and/or AIDS education program issues and to integrate the educational activities of the medical and personnel departments.

(h) An HIV-1 and/or AIDS Information and Education Coordinating Committee shall be established to enhance communication among the Heads of the Military Services, recommend joint education policy and program actions, review education program implementation, and recommend methodologies and procedures for program evaluation. That committee shall be chaired by a representative of the ASD(HA). Members shall include two representatives from the Office of the ASD(FM&P) (OASD(FM&P)), and the HIV-1 and/or AIDS education program coordinator from each Military Service. Additional members shall represent the Armed Services Blood Program Office and, on an ad hoc basis, the Office of the ASD(HA). Policy and program proposals shall be coordinated with the Secretaries of the Military Departments.

(i) The Head of each Military Service shall prepare a plan for the implementation of a comprehensive HIV-1 and/or AIDS education program that includes specific objectives with measurable action steps. The plan shall address information, education, and behavior-change strategies, as described in Disease Surveillance and Health Education.

(j) Civilians may not be mandatorily tested for serologic evidence of HIV-1 infection except as necessary to comply with valid host-nation requirements for screening of DoD employees. Procedures for mandatory screening of DoD civilians shall be in accordance with appendix B of this part.

(k) The medical assessment of each exposure to, and/or case of, HIV-1 infection seen at a military medical treatment facility (MTF) shall include an epidemiological assessment of the potential transmission of HIV-1 to other persons at risk of infection, including sexual and other intimate contacts and family of the patient, and transfusion history. The occurrence of HIV-1 infection or serologic evidence of HIV-1 infection may not be used as a basis for any disciplinary action against an individual, except as described in Limitations on the Use of Information.6

(l) Each Head of a military medical service shall ensure conduction of an ongoing clinical evaluation of each AD Service member with serological evidence of HIV-1 infection at least annually. CD4 lymphocyte percentages or counts shall be monitored at least every 6 months. Appropriate preventive medicine counseling shall also be provided to all individual patients, and public health education materials shall be made available to that medical services’ beneficiary population. Each Head of a military medical service shall ensure conduction of longitudinal clinical evaluations of AD Service members with serologic evidence of HIV-1 infection and shall ensure preparation of internal reports to facilitate timely review and reassessment of current policy guidelines.

(m) All Heads of the military MTFs shall notify promptly the cognizant military health authority, when there is clinical or laboratory evidence indicative of infection with HIV-1, in accordance with appendix C of this part.

(n) The Secretary of each Military Department shall ensure that a mechanism is established to gather data on the epidemiology of HIV-1 infection of its members. Such epidemiological research shall be accomplished to ensure appropriate protection of information given by the Service member on the means of transmission.

(o) The Secretary of the Army, as the Head of the lead Agency for infectious disease research within the Department of Defense, shall budget for and fund tri-Military Department DoD HIV-1 research efforts, in accordance with guidance provided by the ASD(HA). The research program shall focus on the epidemiology and natural history of HIV-1 infections in military and military associated populations; on improving the methods for rapid diagnosis and patient evaluation; and on studies of the immune response to HIV-1 infection, including the potential for increased risk in the military operational environment.

(p) Service members with serologic evidence of HIV-1 infection shall be assigned within the United States, including Alaska, Hawaii, and Puerto Rico, due to the high priority assigned to the continued medical evaluation of military personnel. The Secretaries of the Military Departments may restrict such individuals to nondeployable units or positions for purposes of force readiness. To protect the health and safety of Service members with serologic evidence of HIV-1 infection and of other Service members (and for no other reason), the Secretaries of the Military Departments may, on a case-by-case basis, limit assignment of HIV-1-infected individuals on the nature and location of the duties performed in accordance with operational requirements.

(q) AD and Reserve component personnel with serologic evidence of HIV-1 infection shall be retained or separated in accordance with Retention and Separation.7

(r) The ASD(HA), in coordination with the Heads of the Military Services, shall revise Standard Clinical Protocol, HIV-1 Testing and Interpretation of Results, Disease Surveillance and Health Education, Procedure for Evaluating T-Helper Cell Count, as appropriate. The ASD(FM&P) shall revise appendix B to this part, as appropriate, through publication in the Federal Register. Revisions under this paragraph shall be in coordination with the GC, DoD.

This part updates the policies that implement title 37 U.S. Code, chapter 13 and govern voluntary allotments of pay and allowances for active and retired members.

This part applies to the Office of the Secretary of Defense and the Military Departments. The term “Military Service,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.

(a) General. (1) The voluntary allotment system is provided primarily as a means to assist military members in accommodating their personal and family financial responsibilities to the exigencies of military service. It is a convenience and privilege not to be exploited or abused. To avoid unjustifiable expense to the government, its use shall be limited to the purposes outlined in the following paragraphs.

(2) All existing approved registered allotments of military pay and allowances for active duty and retired members that were authorized previously by this part at the time registered may be continued as approved allotments. However, if any such allotments are discontinued, they may not be reestablished except as a new allotment in accordance with the requirements of this part. Any change in the allotment that is initiated by the service member is considered a discontinuance, except those that are beyond the control of the service member.

(3) Changes beyond the control of the service member are changes that are of an administrative nature dictated by events incidental to the purpose of the allotment. Examples of administrative changes that are beyond the control of the service member are: name and address changes by the payee or amount changes due to contractual obligation existing at the time the allotment was executed, such as a mortgage payment change because of a variable rate mortgage or changing escrow requirements. Although the changes given above do not constitute a discontinuance, such administrative changes that adjust the amount of the allotment shall be accepted only when communicated by the service member on a new allotment request. Discontinuance occurs with any mortgage refinancing action.

(4) A change in allotment initiated by an organizational allottee may be accepted when the change is documented properly, is of an administrative nature, and does not increase the amount allotted.

(b) Active Military Service. Voluntary allotments of military pay and allowances of service members in active military service shall be limited to the following:

(1) The purchase of U.S. savings bonds.

(2) The payment of premiums for insurance on the life of the allotter, including U.S. Government Life Insurance, National Service Life Insurance, Veterans Group Life Insurance, Navy Mutual Aid Insurance, Army Mutual Aid Insurance, and commercial life insurance.

(i) Allotments for insurance on the lives of a spouse or children.

(ii) Allotments for health, accident, or hospitalization insurance or other contracts that, as a secondary or incidental feature, include insurance on the life of the service member are not authorized.

(iii) Requests to initiate commercial life insurance allotments shall be processed only after compliance with requirements of 32 CFR part 276.

(3) The repayment of loans to the Navy Relief Society, Army Emergency Relief, Air Force Aid Society, and American Red Cross.

(4) Allotments to a spouse, former spouses, other dependents, and relatives who are not designated legally as dependents. The payment of such an allotment to a financial institution or association shall not deprive a service member of the use of the allotments authorized by paragraph (b)(6) of this section.

(5) The voluntary liquidation of indebtedness to the United States.

(i) This includes indebtedness incurred by reason of defaulted notes insured by the Federal Housing Administration or guaranteed by the Veterans Administration (VA); payment of amounts due under the Retired Serviceman's Family Protection Plan, in the case of retired service members serving on active duty; payment of delinquent Federal income taxes; and other indebtedness to any department or agency of the U.S. Government, except to the department paying the service member.

(ii) This includes repayment of debts owed to an organization for funds administered on behalf of the U.S. Government and any such debts assigned to a collection agency.

(6) The payment to a financial organization for credit to an account of the service member. A financial organization is any bank, savings bank, savings and loan association or similar institution, or Federal or State chartered credit union. Monies thus credited to the service member's account may then be used for any purpose in accordance with the desires and direction of the service member. No more than two such allotments under this paragraph shall be allowed any service member at any one time.

(7) Repayment of loans obtained for the purchase of a home, including a mobile home or house trailer used as a residence by the service member. This does not authorize repayment of loans for business purposes or for additions or improvements to homes, mobile homes, or house trailers. Allotments authorized herein are in addition to those authorized under paragraph (b)(6) of this section. Only one such allotment shall be allowed any service member at any one time.

(8) Charitable contributions to the following:

(i) A Combined Federal Campaign, in accordance with DOD Directive 5035.1, “Fund-Raising Within the Department of Defense,” April 7, 1978, and DOD Instruction 5035.5, “DoD Combined Federal Campaign-Overseas Areas (CFC-OA),” August 23, 1978.

(ii) Army Emergency Relief, Navy Relief Society, or affiliates of the Air Force Assistance Fund.

(9) Deposits to the account of a service member participating in the Uniformed Services Savings Deposit Program under 10 U.S.C. 1035. This program is limited to service members in a missing status as a result of the Vietnam conflict.

(10) Allotments to the VA for deposit to the Post-Vietnam Era Veterans Education Account within the periodic and cumulative depository limitations specified in DOD Directive 1322.8, “Voluntary Educational Programs for Military Personnel,” July 23, 1987. Once authorized by the service member, the allotments must run a minimum of 12 consecutive months, unless the service member suspends participation or disenrolls from the program because of personal hardship

(11) Payment of delinquent State or local income or employment taxes.

(12) Dental and health insurance allotments for the benefit of the families of service members.

(c) Retired military personnel. (1) Voluntary allotments be service members receiving retired or retainer pay shall be limited to the following:

(i) Purchase of U.S. savings bonds.

(ii) Payment of premiums for insurance on the life of the service member including U.S. Government Life Insurance, National Service Life Insurance, Veterans Group Life Insurance, Navy Mutual Aid Insurance, Army Mutual Aid Insurance, and commercial life insurance, subject to the limitations prescribed in paragraph (b)(2) (i) and (ii) of this section.

(iii) Voluntary liquidation of indebtedness to the United States, subject to the limitations prescribed in paragraph (b)(5) of this section—

(iv) Allotments to a spouse, former spouse, and/or children of the retired service member having a permanent residence other than that of the retired service member.

(v) Charitable contributions to the Army Emergency Relief, Navy Relief Society, or affiliates of the Air Force Assistance Fund.

(vi) The repayment of loans to the Army Emergency Relief, Navy Relief Society, Air Force Aid Society, or American Red Cross.

(2) To assist personnel in the transition from active duty to retired status, all allotments authorized for active duty service members may be continued, except those allotments in paragraph (b) (8)(i), (9) and (10) of this section. However, if an allotment continued from active duty, but not authorized by paragraph (c)(1) of this section is discontinued by the retiree, such an allotment may not be reestablished.

(d) Exclusions and Restrictions. (1) The amount of pay and allowances that may be allotted shall exclude amounts required to be withheld for taxes, liquidations of indebtedness determined under applicable provisions of law to be chargeable against the service member's pay account, or required premiums on Servicemen's Group Life Insurance.

(2) The total amount that may be allotted shall comply with the restrictions in the DOD Military Pay and Allowances Entitlements Manual and DOD 1340.12-M, “DOD Military Retired Pay Manual.”

(e) Control and use of forms. (1) Allotment requests shall be accepted only on authorized allotment forms, unless otherwise provided in this part. Supplies of allotment forms shall not be made available to non-Federal organizations, except that each Military Department may authorize issuance of forms to the Army Emergency Relief, Navy Relief Society, the Air Force Aid Society, and American Red Cross.

(2) Active duty enlisted service members shall sign the allotment authorization form in the presence of the service member's commanding officer, personnel or disbursing officer, or one of their representative who shall witness the signature. The Military Departments may waive this requirement for senior enlisted service members and loan repayment allotments payable to the Army Emergency Relief, Navy Relief Society, the Air Force Aid Society, and American Red Cross.

(3) Charitable contribution allotment requests by enlisted members may be accepted without a witnessing official, when submitted on contribution forms in accordance with DOD Directive 5035.1 and DOD Instruction 5035.5.

(4) Retired military personnel need not submit allotment requests on the prescribed forms. A signed personal letter may be used to support an allotment request, change, or cancellation by retired military members as long as all required information is provided.

This Directive: (a) Delegates authority, with the power to redelegate, to the Secretaries of the Military Departments to provide relief to health care personnel of the Department of Defense from personal tort liability in connection with their authorized activities, and (b) establishes procedures to be followed in providing such relief.

The provisions of this Directive apply to the Office of the Secretary of Defense, the Military Departments, and all other Department of Defense Components.

(a) The authority vested in the Secretary of Defense by title 10 U.S.C. section 1089(f) hold harmless or provide liability insurance for Department of Defense health care personnel is hereby delegated to:

(1) The Secretary of each Military Department for military members and civilian employees of his Department, and

(2) The Secretary of the Army for civilian employees of the Office of the Secretary of Defense and Department of Defense Components other than the Military Departments (see DoD Directive 5515.9).1

(b) The authority delegated above may be redelegated as appropriate and necessary to carry out the provisions of title 10, U.S.C., section 1089(f).

(a) In all cases under title 10 U.S.C. section 1089, medical personnel shall be required to:

(1) Promptly forward all process served upon them or attested true copies thereof to the appropriate official designated by the Secretary of the Military Department concerned;

(2) Furnish such other information and documents as the Attorney General may request; and

(3) Comply with the directions of the Attorney General relative to the final disposition of a claim for damages.

(b) The procedures set forth in title 10 U.S.C. section 2733 and regulations issued pursuant thereto shall be utilized in determining costs, settlements, or judgments under title 10 U.S.C. section 1089(f).

(a) This part states the DoD alcohol and drug abuse prevention policy, and implements the standards contained in Pub. L. 92-255 (86 Stat 65), as amended, 91-616 (84 Stat 1848), as amended, and 92-129 (85 Stat 361), as amended, and the Federal Personnel Manual (FPM) Supplement 792-2, February 1980.

(b) In addition, this part establishes policy concerning drug abuse paraphernalia.

The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified Commands, and the Defense Agencies. The term “Military Services” includes the Army, Navy, Air Force, and Marine Corps.

The following definitions are for operational use within the Department of Defense. They do not change definitions in statutory provisions and those regulations and directives that are concerned with determination of misconduct and criminal or civil responsibilities for persons’ acts or omissions.

(a) Alcohol and drug abuse. The use of alcohol and/or other drugs to an extent that it has an adverse effect on the user's health or behavior, family, community, or the Department of Defense and/or the illegal use of such substances.

(b) Drug trafficking. The illegal or wrongful introduction of drugs into a military installation, with the intent of selling or transferring the drugs; or the illegal or wrongful sale, transfer, or distribution of drugs as they are listed in current schedules of the Controlled Substances Act, title II, Comprehensive Drug Abuse and Control Act of 1970 (Pub. L. 91-513) (21 CFR parts 1300-1316).

(c) Alcohol and drug dependence. The reliance on alcohol and/or other drugs following administration on a periodic or continuing basis. Dependence may be psychological or physical, or both.

(1) Psychological dependence. The craving for the mental or emotional effects of a drug that manifests itself in repeated use and leads to a state of impaired capability to perform normal functions.

(2) Physical dependence. An alteration or state of adaptation to a drug after repeated use that results in withdrawal symptoms when the drug is discontinued abruptly and/or the development of tolerance.

(d) Drug abuse paraphernalia. All equipment, products, and materials of any kind that are used, intended for use, or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of the Controlled Substances Act.

(a) It is the goal of the Department of Defense to be free of the effects of alcohol and drug abuse; of the possession of and trafficking in illicit drugs by military and civilian members of the Department of Defense; and of the possession, use, sale, or promotion of drug abuse paraphernalia. Alcohol and drug abuse is incompatible with the maintenance of high standards of performance, military discipline, and readiness. Therefore, it is the policy of the Department of Defense to:

(1) Assess the alcohol and drug abuse and drug trafficking situation in or influencing the Department of Defense.

(2) Not induct persons into the Military Services who are alcohol or drug dependent and not hire persons who are alcohol or drug dependent if that dependency impairs job performance.

(3) Deter and detect alcohol and drug abuse within the Armed Forces and defense community and drug trafficking on installations and facilities under the control of the Department of Defense.

(4) Provide continuing education and training to commanders, supervisors, program personnel, and other military members and civilian employees and their families concerning this policy and effective measures to alleviate problems associated with alcohol and drug abuse.

(5) Treat or counsel alcohol and drug abusers and rehabilitate the maximum feasible number of them.

(6) Discipline and/or discharge drug traffickers and those alcohol and drug abusers who cannot or will not be rehabilitated, in accordance with appropriate laws, regulations, and instructions.

(7) Work in concert with national alcohol and drug abuse prevention programs, maintaining appropriate relationships with governmental and nongovernmental agencies.

(8) Prohibit members of the Armed Forces, and DoD civilians while on the job, to possess, sell, or use drug abuse paraphernalia.

(9) Prohibit the possession or sale of drug abuse paraphernalia by DoD resale outlets to include military exchanges, open messes, and commissaries, and by private organizations and concessions located on DoD installations.

(b) The Department of Defense encourages DoD Components to use, as guidance and as a legal background in addressing paraphernalia issues, the Model Drug Paraphernalia Act prepared by the Drug Enforcement Administration, at the request of the President (Model Drug Paraphernalia Act, Drug Enforcement, March 1980, Volume 7, No. 1).

(c) Programs and standards of care promulgated in execution of this policy for military personnel shall be in compliance with Pub. L. 92-129.

(d) Programs and standards of care promulgated in execution of this policy for civilian employees shall be in compliance with Pub. L. 92-255, Pub. L. 91-616, and FPM Supplement 792-2.

(a) The Assistant Secretary of Defense (Health Affairs) (ASD(HA)), or designated representative, is responsible for the development, coordination, and supervision of the DoD alcohol and drug abuse prevention program, in accordance with this part and shall:

(1) In coordination with the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) (ASD(MRA&L)), develop and promulgate policies designed to ensure that the DoD alcohol and drug abuse prevention programs reach military members, their families, DoD civilian employees and, to the extent feasible, their families. Programs and standards of care for family members shall be consistent with those for the military and civilian components, with accepted practice in the alcohol and drug abuse area, and with applicable laws and jurisdictional limitations.

(2) In coordination with the ASD(MRA&L), issue DoD instructions to implement the DoD alcohol and drug abuse prevention program, with specific attention to the functional areas of assessment, deterrence and detection, treatment and rehabilitation, and education and training.

(3) Act as focal point for the Department of Defense for interagency and nongovernmental coordination of national alcohol and drug abuse prevention programs.

(4) Evaluate and report upon the effectiveness and efficiency of the DoD alcohol and drug abuse prevention program.

(5) Establish a DoD Alcohol and Drug Abuse Advisory Committee to advise on policy and program matters. The Committee shall include representatives of each Military Service, designated by the Military Department concerned, and such other advisors as the ASD(HA), or designated representative, considers appropriate. The Committee charter shall be approved by the ASD(HA).

(b) The Secretaries of the Military Departments and Directors of Defense Agencies shall establish and operate programs prescribed by this part and supporting DoD instructions. They may make exceptions to the policy contained in this part only for legitimate medical, educational, and operational purposes. This authority shall not be delegated.

(c) In addition, the Secretaries of the Military Departments shall require appropriate commanders to assess the availability of drug abuse paraphernalia in the vicinity of DoD installations through their Armed Forces Disciplinary Control Boards and in conformity with the Armed Forces Disciplinary Control Boards and Off-Installation Military Enforcement Guidance, and take appropriate action, when the availability of drug abuse paraphernalia reveals a threat to the discipline, health, welfare, or morals of the Armed Forces.

Under 10 U.S.C. 1408, this part establishes policy and authorizes direct payments to a former spouse of a member from retired pay in response to court-ordered alimony, child support, or division of property.

(a) This part applies to the Office of the Secretary of Defense, the Military Departments, the Coast Guard (under agreement with the Department of Transportation), the Public Health Service (PHS) (under agreement with the Department of Health and Human Services); and the National Oceanic and Atmospheric Administration (NOAA) (under agreement with the Department of Commerce). The term “Uniformed Services,” as used herein, refers to the Army, Navy, Air Force, Marine Corps, Coast Guard, commissioned corps of the PHS, and the commissioned corps of the NOAA.

(b) This part covers members retired from the active and reserve components of the Uniformed Services who are subject to court orders awarding alimony, child support, or division of property.

(a) Alimony. Periodic payments for the support and maintenance of a spouse or former spouse in accordance with State law under 42 U.S.C. 662(c). It includes, but is not limited to, spousal support, separate maintenance, and maintenance. Alimony does not include any payment for the division of property.

(b) Annuitant. A person receiving a monthly payment under a survivor benefit plan related to retired pay.

(c) Child support. Periodic payments for the support and maintenance of a child or children, subject to and in accordance with State law under 42 U.S.C. 662(b). It includes, but is not limited to, payments to provide for health care, education, recreation, and clothing or to meet other specific needs of such a child or children.

(d) Court. Any court of competent jurisdiction of any State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Northern Mariana Islands, and the Trust Territory of the Pacific Islands and any court of the United States as defined in 28 U.S.C. 451 having competent jurisdiction; or any court of competent jurisdiction of a foreign country with which the United States has an agreement requiring the United States to honor any court order of such country.

(e) Court Order. As defined under 10 U.S.C. 1408(a)(2), a final decree of divorce, dissolution, annulment, or legal separation issued by a court, or a court ordered, ratified, or approved property settlement incident to such a decree. It includes a final decree modifying the terms of a previously issued decree of divorce, dissolution, annulment, or legal separation, or a court ordered, ratified, or approved property settlement incident to such previously issued decree. The court order must provide for the payment to a member's former spouse of alimony, child support, or a division of property. In the case of a division of property, the court order must specify that the payment is to be made from the member's disposable retired pay.

(f) Creditable service. Service counted towards the establishment of any entitlement for retired pay. See paragraphs 10102 through 10108 of DoD 1340.12-M, 42 U.S.C. 212 for the PHS, and 33 U.S.C. 864 and 10 U.S.C. 6323 for NOAA.

(g) Designated agent. A representative of a Uniformed Service who will receive and process court orders under this part.

(h) Division of property. Any transfer of property or its value by an individual to his or her former spouse in compliance with any community property settlement, equitable distribution of property, or other distribution of property between spouses or former spouses.

(i) Entitlement. The legal right of a member to receive retired pay.

(j) Final decree. As defined under 10 U.S.C. 1408(a)(3), a decree from which no appeal may be taken or from which no appeal has been taken within the time allowed for taking such appeals under the laws applicable to such appeals or a decree from which timely appeal has been taken and such appeal has been finally decided under the laws applicable to such appeals.

(k) Former spouse. The former husband or former wife, or the husband or wife, of a member.

(l) Garnishment. The legal procedure through which payment is made from an individual's pay that is due or payable to another party in order to satisfy a legal obligation to provide child support, to make alimony payments, or both, under 5 CFR part 581 and 42 U.S.C. 659 or to enforce a division of property other than a division of retired pay as property under 10 U.S.C. 1408(d)(5).

(m) Member. A person originally appointed or enlisted in, or conscripted into, a Uniformed Service who has retired from the regular or reserve component of the Uniformed Service concerned.

(n) Renounced pay. Retired pay to which a member has an entitlement, but for which receipt of payment has been waived by the member.

(o) Retired pay. The gross entitlement due a member based on conditions of the retirement law, pay grade, years of service for basic pay, years of service for percentage multiplier, if applicable, and date of retirement (transfer to the Fleet Reserve or Fleet Marine Corps Reserve); also known as retainer pay.

It is the policy of the Uniformed Services to honor a former spouse's request for direct payment from a given member's retired pay in enforcement of a court order that provides for a alimony, child support, or division of property, when the terms, conditions, and requirements in this part are satisfied.

(a) Eligibility of former spouse. (1) A former spouse of a member is eligible to receive direct payment from the retired pay of that member only pursuant to a court order that satisfies the requirements and conditions specified in this part. In the case of a division of property, the court order must specifically provide that payment is to be made from disposable retired pay.

(2) For establishing eligibility for direct payment under a court order that provides for a division of retired pay as property, a former spouse must have been married to the member for 10 years or more, during which the member performed 10 years or more of creditable service. There is no 10-year marriage requirement for payment of child support, alimony, or both.

(b) Application by former spouse. (1) A former spouse shall deliver to the designated agent of the member's Uniformed Service a signed DD Form 2293, Request for Former Spouse Payments from Retired Pay, or a signed statement that includes:

(i) Notice to make direct payment to the former spouse from the member's retired pay.

(ii) A copy of the court order and other accompanying documents certified by an official of the issuing court that provides for payment of child support, alimony, or division of property.

(iii) A statement that the court order has not been amended, superseded, or set aside.

(iv) Sufficient identifying information about the member to enable processing of the application. The identification should give the member's full name, social security number, and Uniformed Service.

(v) The full name, address, and social security number of the former spouse.

(vi) Before payment, the former spouse shall agree personally that any future overpayments are recoverable and subject to involuntary collection from the former spouse or his or her estate.

(vii) As a condition precedent to payment, the former spouse shall agree personally to notify the designated agent promptly if the operative court order upon which payment is based is vacated, modified, or set aside. This shall include notice of the former spouse's remarriage if all or a part of the payment is for alimony or notice of a change in eligibility for child support payments under circumstances of the death, emancipation, adoption, or attainment of majority of a child whose support is provided through direct payment to a former spouse from retired pay.

(2) If the court order is for a division of retired pay as property and it does not state that the former spouse satisfied the eligibility criteria found in paragraph (a)(2) of this section, the former spouse shall furnish sufficient evidence for the designated agent to verify that the requirement was met.

(3) The notification of the designated agent shall be accomplished by certified or registered mail, return receipt requested, or by personal service. Effective service is not accomplished until a complete application providing all information required by this part is received in the office of the designated agent, who shall note the date and time of receipt on the notification document.

(4) Not later than 90 days after effective service, the designated agent shall respond to the former spouse as follows: (i) If the court order will be honored, the former spouse shall be informed of the date that payments tentatively begin; the amount of each payment; the amount of gross retired pay, total deductions, and disposable retired pay (except in cases where full payment of a court-ordered fixed amount will be made); and other relevant information if applicable: or (ii) If the court order will not be honored, the designated agent shall explain in writing to the former spouse why the court order was not honored.

(5) The designated agent for each Uniformed Service is:

(i) Army: Commander, Army Finance and Accounting Center, Attn: FINCL-G, Indianapolis, IN 46249-0160, (317) 542-2155.

(ii) Navy: Director, Navy Family Allowance Activity, Anthony J. Celebrezze Federal Building, Cleveland, OH 44199-2087, (216) 522-5301.

(iii) Air Force: Commander, Air Force Accounting and Finance Center, ATTN: JAL, Denver, CO 80279-5000, (303) 370-7524.

(iv) Marine Corps: Commanding Officer, Marine Corps Finance Center (Code AA), Kansas City, MO 64197-0001, (816) 926-7103.

(v) U.S. Coast Guard, Commanding Officer (L), Pay and Personnel Center, 444 Quincy Street, Topeka, Kansas 66683-3591; (913) 295-2516.

(vi) Office of General Counsel, Department of Health and Human Services, room 5362, 330 Independence Avenue SW., Washington, DC 20201, (202) 475-0153.

(vii) U.S. Coast Guard, Commanding Officer (L), Pay and Personnel Center, 444 Quincy Street, Topeka, Kansas 66683-3591; (913) 295-2516.

(6) U.S. Attorneys are not designated agents authorized to receive court orders or garnishments under this part.

(c) Review of Court Orders. (1) The court order must be regular on its face, meaning that it is issued by a court of competent jurisdiction in accordance with the laws of the jurisdiction.

(2) The court order must be legal in form and must include nothing on its face that provides reasonable notice that it is issued without authority of law. It is required that the court order be authenticated or certified within 90 days immediately preceding its service on the designated agent.

(3) The court order must be a final decree.

(4) If the court order was issued while the member was on active duty and the member was not represented in court, the court order or other court documents must certify that the rights of the member under the “Soldiers’ and Sailors’ Civil Relief Act of 1940” (50 U.S.C. Appendix 501-591) were complied with.

(5) Sufficient information must be contained in the court order to identify the member.

(6) For court orders that provide for the division of retired pay as property, the following conditions apply:

(i) The court must have jurisdiction over the member by reason of (A) the member's residence, other than because of military assignment in the territorial jurisdiction of the court; (B) the member's domicle in the territorial jurisdiction of the court; or (C) the member's consent to the jurisdiction of the court.

(ii) The treatment of retired pay as property solely of the member or as property of the member and the former spouse of that member must be in accordance with the law of the jurisdiction of such court.

(iii) The court order or other accompanying documents served with the court order must show the former spouse was married to the member 10 years or more, during which the member performed at least 10 years of creditable service.

(7) Court orders awarding a division of retired pay as property that were issued before June 26, 1981, shall be honored if they otherwise satisfy the requirements and conditions specified in this part. A modification on or after June 26, 1981, of a court order that originally awarded a division of retired pay as property before June 26, 1981, may be honored for subsequent court-ordered changes made for clarification, such as the interpretation of a computation formula in the original court order. For court orders issued before June 26, 1981, subsequent amendments after that date to provide for a division of retired pay as property are unenforceable under this part. If the court order awarding a division of retired pay as property is issued on or after June 26, 1981, subsequent modifications of that court order shall be honored if they otherwise satisfy the requirements and conditions specified in this part.

(8) In the case of a division of property, the court order must provide specifically for payment of a fixed amount expressed in U.S. dollars or payment as a percentage or fraction of disposable retired pay. Court orders specifying a percentage or fraction of retired pay shall be construed as a percentage or fraction of disposable retired pay. A court order that provides for a division of retired pay by means of a formula wherein the elements of the formula are not specifically set forth or readily apparent on the face of the court order will not be honored unless clarified by the court.

(d) Garnishment Orders. (1) If a court order provides for the division of property other than retired pay in addition to an amount of disposable retired pay to be paid to the member's former spouse, the former spouse may garnish that member's retired pay in order to enforce the division of property. The limitations of 15 U.S.C. 1673(a) and the limitations of § 63.6(e) of this part apply in determining the amount payable to a former spouse.

(2) The designated agents authorized to receive service of process of garnishment orders under this part shall be those listed in § 63.6(b)(5) of this part.

(3) Garnishment orders under this part for enforcement of a division of property other than retired pay shall be processed in accordance with 5 CFR part 581 to the extent that the procedures are consistent with this part.

(e) Limitations. (1) Upon proper service, a member's retired pay may be paid directly to a former spouse in the amount necessary to comply with the court order, provided the total amount paid does not exceed:

(i) 50 percent of the disposable retired pay for all court orders and garnishment actions paid under this part.

(ii) 65 percent of the disposable retired pay for all court orders and garnishments paid under this part and garnishments under 42 U.S.C. 659.

(2) Disposable retired pay is the gross pay entitlement, including renounced pay, less authorized deductions. Disposable retired pay does not include annuitant payments under 10 U.S.C. chapter 73. For court orders issued on or before November 14, 1986 (or amendments thereto), disposable retired does not include retired pay of a member retired for disability under 10 U.S.C. chapter 61. The authorized deductions are:

(i) Amounts owed to the United States.

(ii) Fines and forfeitures ordered by a court-martial.

(iii) Amounts waived in order to receive compensation under title 5 or 38 of the U.S. Code.

(iv) Federal employment taxes and income taxes withheld to the extent that the amount deducted is consistent with the member's tax liability, including amounts for supplemental withholding under 26 U.S.C. 3402(i), when the member presents evidence to the satisfaction of the designated agent that supports such withholding. State employment taxes and income taxes when the member makes a voluntary request for such withholding from retired pay and the Uniformed Services have entered into an agreement with the State concerned for withholding from retired pay.

(v) Premiums paid as a result of a election under 10 U.S.C. chapter 73 to provide an annuity to a spouse or former spouse to whom payment of a portion of such member's retired pay is being made pursuant to a court order under this part.

(vi) The amount of retired pay of the member under 10 U.S.C. chapter 61 computed using the percentage of the member's disability on the date, when the member was retired (or the date on which the member's name was placed on the temporary disability retirement list), for court orders issued after November 14, 1986.

(vii) Other amounts required by law to be deducted.

(f) Notification of Member. (1) As soon as possible, but not later than 30 calendar days after effective service of a court order or garnishment action under this part, the designated agent shall send written notice to the affected member at his or her last known address.

(2) This notice shall include:

(i) A copy of the court order and accompanying documentation.

(ii) An explanation of the limitations placed on the direct payment to a former spouse from a member's retired pay.

(iii) A request that the member submit notification to the designated agent if the court order has been amended, superseded, or set aside. The member is obligated to provide an authenticated or certified copy of the operative court documents when there are conflicting court orders.

(iv) The amount or percentage that will be deducted if the member fails to respond to the notification as prescribed by this part.

(v) The effective date that direct payments to the former spouse tentatively will begin.

(vi) Notice that the member's failure to respond within 30 days from the date that the notice is mailed may result in the payment of retired pay as provided in the notification.

(vii) That if the member submits information in response to this notification, the member thereby consents to the disclosure of such information to the former spouse or the former spouse's agent.

(3) If the member responds to the notification, the designated agent shall consider the response and will not honor the court order whenever it is shown that the court order is defective, or the court order is modified, superseded, or set aside.

(g) Designated agent liability. (1) The United States and any officer or employee of the United States will not be liable with respect to any payment made from retired pay to any member or former spouse pursuant to a court order that is regular on its face if such payment is made in accordance with this part.

(2) An officer or employee of the United States, who under this part has the duty to respond to interrogatories, will not be subject under any law to any disciplinary action or civil or criminal liability or penalty for, or because of, any disclosure of information made by him or her in carrying out any of the duties that directly or indirectly pertain to answering such interrogatories.

(3) If a court order on its face appears to conform to the laws of the jurisdiction from which it was issued, the designated agent will not be required to ascertain whether the court has obtained personal jurisdiction over the member.

(4) Whenever a designated agent is effectively served with interrogatories concerning implementation of this part, the designated agent shall respond to such interrogatories within 30 calendar days of receipt or within such longer period as may be prescribed by applicable State law.

(h) Payments. (1) Subject to a member's eligibility for retired pay, effective service of a court order, and the limitations and requirements of this part, the Uniformed Service concerned shall begin payments to the former spouse not later than 90 days after the date of effective service.

(2) Payments shall conform with the normal pay and disbursement cycle for retired pay. Payments may be expressed as fixed in amount or as a percentage or fraction of disposable retired pay. With regard to payments based on a percentage or fraction of disposable retired pay, the amount will change in direct proportion and at the effective date of future cost-of-living adjustments that are authorized, unless the court order directs otherwise.

(3) Payments terminate on the date of the death of the member, death of the former spouse, or as stated in the applicable court order, whichever occurs first. Payments shall be terminated or shall be reduced upon the occurrence of a condition that requires termination or reduction under applicable State law.

(4) When several court orders are served with regard to a member's retired pay, payment shall be satisfied on a first-come, first-served basis within the amount limitations prescribed in paragraph (e) of this section.

(5) If conflicting court orders are served on the designated agent that direct that different amounts be paid during a month to the same former spouse from a given member's retired pay, the designated agent shall authorize payment on the court order directing payment of the least amount. The difference in amounts on conflicting court orders shall be retained by the designated agent pending resolution by the court that has jurisdiction or by agreement of the parties. The amount retained shall be paid as provided in a subsequent court order or agreement. The total of all payments plus all moneys retained under this paragraph shall be within the limitation prescribed in paragraph (e) of this section.

(6) The designated agent shall comply with a stay of execution issued by a court of competent jurisdiction and shall suspend payment of disputed amounts pending resolution of the issue.

(7) When service is made and the identified member is found not to be currently entitled to payments the designated agent shall advise the former spouse that no payments are due from or payable by the Uniformed Service to the named individual. If the member is on active duty when service is accomplished, the designated agent shall retain the application until the member's retirement. In such case, payments to the former spouse, if otherwise proper, shall begin not later than 90 days from the date the member first becomes entitled to receive retired pay. If the member becomes entitled to receive retired pay more than 90 days after first being notified under paragraph (f) of this section, the notification procedures prescribed by that section shall be repeated by the designated agent.

(8) In moneys are only temporarily exhausted or otherwise unavailable, the former spouse shall be fully advised of the reason or reasons why and for how long the moneys will be unavailable. Service shall be retained by the designated agent and payments to the former spouse, if otherwise proper, shall begin not later than 90 days from the date the member becomes entitled to receive retired pay. If the member becomes entitled to receive retired pay more than 90 days after first being notified under paragraph (f) of this section, the notification procedures prescribed by that section shall be repeated by the designated agent.

(9) The order of precedence for disbursement of retired pay when the gross amount is not sufficient to permit all authorized deductions and collections shall follow volume I, part 3, section 7040, “Order of Payment,” in the Treasury Fiscal Requirements Manual for Guidance of Departments and Agencies. Court-ordered payments to a former spouse from retired pay shall be enforced over voluntary deductions and allotments.

(10) Payments made shall be prospective in terms of the amount stated in the court order. Arrearages will not be considered in determining the amount payable from retired pay.

(11) No right, title, or interest that can be sold, assigned, transferred, or otherwise disposed of, including by inheritance, is created under this part.

(12) At the request of the designated agent, the former spouse may be required to provide a certification of eligibility that attests in writing to the former spouse's continued eligibility and that includes a notice of change in status or circumstances that affect eligibility. After notice to the former spouse, payments to the former spouse may be suspended, or terminated, when the former spouse fails to comply, or refuses to comply, with the certification requirement.

(i) Reconsideration. A former spouse or member may request that the designated agent reconsider the designated agent's determination in response to service of an application for payments under this part or the member's answer to the designated agent with respect to notice of such service. For reconsideration, the request must express the issues the former spouse or the member believes were incorrectly resolved by the designated agent. The designated agent shall respond to the request for reconsideration, giving an explanation of the determination reached.

This part implements sections 672(a), 675, 688, and 973 of title 10, United States Code, by prescribing uniform policy and procedures governing the peacetime management of retired military personnel, both Regular and Reserve, in preparation for their use during a mobilization.

This part:

(a) Applies to the Office of the Secretary of Defense (OSD); the Military Departments (including their National Guard and Reserve components); the Chairman, Joint Chiefs of Staff (Joint Staff); the Coast Guard and its Reserve component (by agreement with the Department of Transportation (DoT)); and the Defense Agencies (hereafter referred to collectively as “DoD Components”). The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, Marine Corps, and Coast Guard (by agreement with the DoT).

(b) By agreement with non-DoD organizations that have DoD-related missions, includes organizations with Defense-related missions, such as the Federal Emergency Management Agency (FEMA), the Selective Service System (SSS), and the organizations with North Atlantic Treaty Organization (NATO)-related missions.

(a) Key employee. Any Reservist, or any military retiree (Regular or Reserve) identified by his or her employer, private or public, as filling a key position.

(b) Key position. A civilian position, public or private (designated by the employers and approved by the Secretary concerned), that cannot be vacated during war or national emergency.

(c) Military retiree categories—(1) Category I. Nondisability military retirees under age 60 who have been retired less than 5 years.

(2) Category II. Nondisability military retirees under age 60 who have retired 5 years or more.

(3) Category III. Military retirees, including those retired for disability, other than categories I or II retirees (includes warrant officers and health-care professionals who retire from active duty after age 60).

(d) Military retirees or retired military members. (1) Regular and Reserve officers and enlisted members who retire from the Military Services under 10 U.S.C. chapters 61, 63, 65, 67, 367, 571, 573, or 867 and 14 U.S.C. chapters 11 and 21.

(2) Reserve officers and enlisted members eligible for retirement under one of the provisions of law in definition (d)(1) who have not reached age 60 and who have not elected discharge or are not members of the Ready Reserve or Standby Reserve (including members of the Inactive Standby Reserve).

(3) Members of the Fleet Reserve and Fleet Marine Corps Reserve under 10 U.S.C. 6330.

It is DoD policy that military retirees shall be ordered to active duty (as needed) to fill personnel shortfalls due to mobilization or other emergencies, as described in 10 U.S.C. 672 and 688. DoD Components and the Coast Guard shall plan to use as many retirees, as necessary, to meet national security needs. Military retirees may be used as follows:

(a) To fill shortages in, or to augment, deployed or deploying units.

(b) To fill shortages in, or to augment, supporting units and activities in the Continental United States (CONUS), Alaska, and Hawaii.

(c) To release other military members for deployment overseas.

(d) Subject to the limitations of 10 U.S.C. 973, to fill Federal civilian workforce shortages within the Department of Defense, the Coast Guard, or other Government entities.

(e) To meet national security needs in organizations outside the Department of Defense with Defense-related missions.

(a) The Assistant Secretary of Defense (Reserve Affairs) (ASD(RA)) and the Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)) shall provide overall policy guidance for the management and mobilization of DoD military retirees. In addition, the Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)) shall:

(1) Validate positions identified by Defense and non-Defense Agencies as suitable for fill by military retirees.

(2) Establish priorities for fill once all requirements are identified.

(3) Provide redistribution guidance.

(b) The Secretaries of the Military Departments and the Commandant of the Coast Guard shall ensure that plans for the management and mobilization of military retirees are consistent with this part.

(c) The Directors of the Defense Agencies, the Director of the Federal Emergency Management Agency (FEMA) and the Director of the Selective Service System (SSS) and other Federal Organizations, as appropriate, shall, by agreement, assist in identifying military and Federal civilian wartime positions that are suitable for fill by military retirees, and provide a list of requirements to the Office of the Assistant Secretary of Defense (Force Management and Personnel) (OASD(FM&P)) for validation and prioritization before fill by the Military Services. The Services retain the right to disapprove the request if no military retiree is available. At least annually, the requesting Agency shall verify to the OASD(FM&P) the accuracy of their validated requirements and identify any new requirements.

(d) The Secretaries of the Military Departments, or designees, shall:

(1) Prepare plans and establish procedures for mobilization of military retirees in conformance with this part.

(2) Determine the extent of military retiree mobilization requirements based on existing inventories and inventory projections for mobilization of qualified Reservists in an active status in the Ready Reserve, the Inactive National Guard, or the Standby Reserve.

(3) Develop procedures for identifying categories I and II retirees and conduct screening of retirees using this part for guidance.

(4) Maintain personnel records and other necessary records for military retirees, including date of birth, date of retirement, current address, and documentation of military qualifications. Maintain records for categories I and II military retirees, including retirees who are key employees and their availability for mobilization, civilian employment, and physical condition. Data shall be maintained on retired Reserve members in accordance with 32 CFR part 114.

(5) Advise military retirees of their duty to provide the Military Services with accurate mailing addresses and any changes in civilian employment, military qualifications, availability for service, and physical condition.

(6) Preassign retired members, when determined appropriate and as necessary.

(7) Determine refresher training requirements in accordance with the criteria established in § 64.6(a)(8).

(a) Premobilization—(1) Management of military retirees. Military retiree management systems should provide for rapid identification of retiree location and military skills to expedite reporting of retirees to a wide range of assignments and geographic locations in mobilization or crisis. As part of the criteria for assignment of individuals to specific mobilization billets, the Military Services should consider the criticality of the mobilization billet, the skills of the individual, and his or her geographic proximity to the place of assignment. To the extent possible, military retirees should be given the opportunity to volunteer for specific assignments. The Military Departments shall develop plans and procedures to identify military retirees excess to their needs. The Military Departments, other DoD Components, FEMA, SSS, and other Federal Agencies, as appropriate, shall provide a list of requirements to the Department of Defense. The Department of Defense shall establish priorities for fill once all requirements and excess personnel are identified and provide redistribution guidance.

(2) Requirement validation. The OASD(FM&P) shall review and validate each mobilization requirement for a military retiree. The criteria considered shall be the structure of the organization, the expanded workload requirements in a mobilization environment, current manpower authorizations, and existing manpower infrastructures supporting the organizations.

(3) Assignment priority. The priority for use of military retirees shall be:

(i) Use by their own Service.

(ii) Use by another Service or a Defense Agency.

(iii) Use by a civilian Federal Department or Agency.

(iv) Any other approved use.

(4) Preassignment of categories I and II military retirees. When determined appropriate by the Military Service concerned, military retirees who physically are qualified maximally should be preassigned in peacetime, either voluntarily or involuntarily, to installations or to mobilization positions that must be filled within 30 days after mobilization. Key employees and category III retirees shall not be preassigned involuntarily. Severe hostilities may prevent the transmittal of mobilization orders to military retirees. All military retirees preassigned to mobilization positions or installations, either voluntarily or involuntarily, shall be issued preassignment or contingent preassignment orders.

(5) Category III military retirees. The nature and extent of the mobilization of category III retirees shall be determined by each Military Service, based on the retiree's military skill and, if applicable, the nature and degree of the retiree's disability. Category III retirees generally should be assigned to civilian jobs, unless they have critical skills or volunteer for specific military jobs. Age or disability alone may not be the sole basis for excluding a retiree from active Military Service during mobilization.

(6) Military retirees living overseas. Military retirees who live overseas maximally shall be preassigned in peacetime, as determined by the Military Service concerned, to meet mobilization augmentation requirements at overseas, U.S., or allied military installations or activities that are near their places of residence.

(7) Military retiree information. The development and maintenance of current information on the mobilization availability of military retirees shall be the responsibility of the Military Services. Such information shall include, but not be limited to, date of retirement, date of birth, current address, and military qualifications. Additionally, the Military Services shall maintain information on the availability for mobilization and the physical condition of categories I and II military retirees. Indication of physical condition may be from certification by the individual military retiree.

(8) Refresher training. Each Military Service shall determine the necessity for, and the frequency of, refresher training of military retirees, based on the needs of the Military Service and the specific military skill of the military retiree. Emphasis should be on voluntary refresher training. Civilian-acquired skills may eliminate the need for refresher training.

(9) Screening of military retirees—(i) Each Military Service shall develop procedures for identifying categories I and II retirees, and shall conduct screening of retirees using this part and 32 CFR part 44 as guidance in formulating screening criteria.

(ii) All military retirees shall be advised to inform their employers concerning their liability for recall to active duty in a mobilization or national emergency, and, when applicable, the procedures for designating their position as a key position.

(iii) Federal employers annually shall review their employment rolls to determine if they employ any military retirees who are filling key positions, as defined in § 64.3.

(iv) Non-Federal employers also are encouraged to use the key position guidelines for making their own key position designations and, when applicable, for recommending certain military retirees for key employees status.

(v) Key position designation guidelines. In determining whether or not a position should be designated as a key position, employers should consider the following criteria:

(A) Can the position be filled in a reasonable time after mobilization?

(B) Does the position require technical or managerial skills that are possessed uniquely by the incumbent employee?

(C) Is the position associated directly with Defense mobilization?

(D) Does the position include a mobilization or relocation assignment in an Agency having emergency functions, as designated by E.O. 12656?

(E) Is the position directly associated with industrial or manpower mobilization, as designated in E.O. 10480?

(F) Are there other factors related to national defense, health, or safety that would make the incumbent of the position unavailable for mobilization?

(vi) Employers who determine that a military retiree is filling a key position and should not be recalled to active duty in an emergency should report that determination to the cognizant military personnel center, using the letter format shown in Appendix A to this part. The list of Reserve personnel centers to which retiree-recall screening-determination recommendations shall be forwarded is at Appendix B to this part.

(b) Mobilization—(1) General. The Military Services shall establish plans and procedures to use those military retirees who meet specific skill and experience requirements to fill mobilization billets, when there is not enough active or qualified Reserve manpower available.

(2) Involuntary order to active duty—(i) Twenty-year active military service retirees. The Secretary of a Military Department may order any retired Regular member, retired Reserve member who has completed at least 20 years of Active Service, or a member of the Fleet Reserve or Fleet Marine Corps Reserve to active duty at any time to perform duties deemed necessary in the interests of national defense in accordance with 10 U.S.C. 675 and 688. Retired Regular members of the Coast Guard may be ordered to active duty by the Secretary concerned only in time of war or national emergency in accordance with 14 U.S.C. 331 and 359.

(ii) Reserve. The Secretary of a Military Department may order any other retired member of a Reserve component of a Military Service to active duty for the duration of a war or emergency and for 6 months thereafter on the basis of required skills, provided:

(A) War or national emergency has been declared by Congress.

(B) The Secretary of the Military Department concerned, with the approval of the Secretary of Defense, determines there are not enough qualified Reserves in an Active status or in the Inactive National Guard, under 10 U.S.C. 672(a).

(3) Graduated Mobilization Response. The Military Services shall develop plans and procedures for ordering military retirees to active duty in accordance with a schedule that includes pre-, partial, and full mobilization requirements.

(c) Peacetime—(1) General. The Military Departments shall establish procedures to order military retirees to active duty during peacetime.

(2) Voluntary order to active duty—(i) Twenty-year active military service retirees. The Secretary of a Military Department may order retired Regular members, retired Reserve members who have completed at least 20 years of active Military Service, or members of the Fleet Reserve or Fleet Marine Corps Reserve to active duty with their consent at any time in accordance with 10 U.S.C. 688.

(ii) Other Reserve retirees. The Secretary of a Military Department may order other retired members of a Reserve component to active duty with their consent in accordance with 10 U.S.C. 672(d).

(3) Involuntary order to active duty. The Secretary of a Military Department may order any retired Regular member, retired Reserve member who has completed at least 20 years of active Military Service, or a member of the Fleet Reserve or Fleet Marine Corps Reserve to active duty without the member's consent at any time to perform duties deemed necessary in the interests of national defense in accordance with 10 U.S.C. 688. This includes the authority to order a retired member who is subject to the Uniform Code of Military Justice (UCMJ) to active duty to facilitate the exercise of court-martial jurisdiction under 10 U.S.C. 802(a). A retired member may not be involuntarily ordered to active duty solely for obtaining court-martial jurisdiction over the member.

This part: (a) Revises 32 CFR part 65 to update policy, procedures, and responsibilities.

(b) Establishes the educational and ecclesiastical requirements for appointment of military chaplains.

(c) Establishes criteria and procedures under which faith groups may become ecclesiastical endorsing agents.

This part applies to the Office of the Secretary of Defense (OSD), the Military Departments (including their National Guard and Reserve components), and the Joint Staff (hereafter referred to collectively as “DOD Components”). The term“Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.

It is DOD policy that professionally qualified chaplains shall be appointed to provide for the free exercise of religion for all members of the Military Services, their dependents, and other authorized persons. Persons appointed to the chaplaincy shall be able to perform a ministry for their own specific faith groups, and provide for ministries appropriate to the rights and needs of persons of other faith groups. Persons appointed to the chaplaincy shall be capable of providing professional staff support to the Military Department concerned.

(a) The Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)) may issue additions implementing guidance consistent with DOD 5025.1-M, as appropriate.

(b) The Secretaries of the Military Departments shall follow the policy and procedures in this part to ensure that persons appointed to the chaplaincy shall meet the minimum professional and educational qualifications prescribed herein and any additional requirements established by law and regulation for appointment as an officer and a chaplain.

(a) Ecclesiastical Certification of Clergy

(1) To be considered for appointment and to serve as a chaplain, clergy shall be certified by a DOD-recognized ecclesiastical endorsing agent. The ecclesiastical certification shall attest that the applicant:

(i) Is a fully qualified member of the clergy of a religious faith group represented by the certifying Agency.

(ii) Is qualified to provide directly or indirectly for the free exercise of religion by all members of the Military Services, their dependents, and other authorized persons.

(2) The required ecclesiastical certification shall be made on DD Form 2088, “Ecclesiastical Endorsing Agent Certification.” If the applicant has completed a number of years of active professional experience after the completion of educational requirements for the chaplaincy, the certifying agent shall so state on DD Form 2088.

(3) Chaplains who fail to maintain their ecclesiastical certification shall be processed in accordance with DOD Directive 1332.31.1

(b) Criteria for Ecclesiastical Endorsing Agencies. (1) Religious faith groups that seek to become ecclesiastical endorsing agents for the purpose of certifying the professional qualifications of clergy for appointment as chaplains in the Military Services shall obtain DOD recognition through the action of the Armed Forces Chaplains Board (AFCB). To be considered for DOD recognition, each religious faith group shall:

(i) Be organized exclusively or substantially to provide religious services to a lay constituency.

(ii) Be able to exercise ecclesiastical authority to grant or withdraw ecclesiastical certification.

(iii) Be able to provide continuing validation of ecclesiastical certification.

(iv) Be able to certify clergy who are qualified to provide directly or indirectly for the free exercise of religion by all members of the Military Services, their dependents, and other authorized persons.

(v) Abide by the applicable DOD regulations and policies.

(2) Through the action of the AFCB, the Department of Defense may revoke its recognition of an ecclesiastical endorsing agent that fails to continue to meet the criteria of paragraphs (b)(1) (i) through (v) of this section. The AFCB, before revoking the recognition of an ecclesiastical endorsing agent, shall provide written notice to the Agency concerned stating the reasons for the proposed revocation and providing a reasonable opportunity for the Agency to reply in writing to the AFCB.

(3) Religious faith groups recognized by the Department of Defense as ecclesiastical endorsing agents may authorize third parties to act on their behalf for accomplishing the administrative procedures in accession of chaplains for the Military Services, and of maintaining liaison with chaplains of the recognized faith group. Each such authorization shall be made in writing by an official authorized by the faith group to grant such authorization, and a copy of the authorization shall be filed with the AFCB.

(c) Educational Requirements. (1) To be considered for appointment as a chaplain in the Military Services, an applicant shall:

(i) Possess a baccalaureate degree of not less than 120 semester hours from a college that is listed in the “Education Directory, Colleges and Universities” 2 or from a school whose credits are accepted by a college listed in the Directory Education.

(ii) Have completed 3 resident years of graduate professional study in theology or related subjects (normally validated by the possession of a Master of Divinity degree, an equivalent degree, or 90 semester hours) that lead to ecclesiastical certification as a member of the clergy fully qualified to perform the ministering functions of a chaplain.

(2) The applicant shall complete the graduate professional study referred to in § 65.5(c)(1)(ii), at a graduate school listed in the Education Directory, Colleges and Universities; an accredited school listed in the “Directory, ATS Bulletin, Part 4”; 3 or from a school whose credits are accepted by a school listed in the Directory or listed as accredited in the “Directory, ATS Bulletin, part 4.”

(d) Other Requirements. Applicants for the chaplaincy also shall meet the requirements established by the Military Departments for appointment as an officer and a chaplain.

This part prescribes policies and procedures for the establishment and operation of elected School Boards for schools operated by the Department of Defense (DoD) under 10 U.S.C. 2164, 32 CFR part 345, and Public Law 92-463.

This part applies to:

(a) The Office of the Secretary of Defense (OSD), the Military Departments, the Coast Guard when operating as a service of the Department of the Navy or by agreement between DoD and the Department of Transportation, the Chairman of the Joint Chiefs of Staff, the Unified and Specified Combatant Commands, the Inspector General of the Department of Defense, the Uniformed Services University of the Health Sciences, the Defense Agencies, and the DoD Field Activities.

(b) The schools (prekindergarten through grade 12) operated by the DoD under 10 U.S.C. 2164 and 32 CFR part 345 within the continental United States, Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American Samoa, the Northern Mariana Islands, and the Virgin Islands, known as DoD DDESS Arrangements.

(c) This part does not apply to elected school boards established under state or local law for DoD DDESS special arrangements.

(a) Arrangements. Actions taken by the Secretary of Defense to provide a free public education to dependent children under 10 U.S.C. 2164 through DoD DDESS arrangements or DoD DDESS special arrangements:

(1) DDESS arrangement. A school operated by the Department of Defense under 10 U.S.C. 2164 and 32 CFR 345 to provide a free public education for eligible children.

(2) DDESS special arrangement. An agreement, under 10 U.S.C. 2164, between the Secretary of Defense, or designee, and a local public education agency whereby a school or a school system operated by the local public education agency provides educational services to eligible dependent children of U.S. military personnel and federally employed civilian personnel. Arrangements result in partial or total Federal funding to the local public education agency for the educational services provided.

(b) Parent. The biological father or mother of a child when parental rights have not been legally terminated; a person who, by order of a court of competent jurisdiction, has been declared the father or mother of a child by adoption; the legal guardian of a child; or a person in whose household a child resides, provided that such person stands in loco parentis to that child and contributes at least one-half of the child's support.

The Assistant Secretary of Defense for Force Management Policy (ASD (FMP)), under the Under Secretary of Defense for Personnel and Readiness, shall:

(a) Make the final decision on all formal appeals to directives and other guidance submitted by the school board or Superintendent.

(b) Ensure the Director, DoD DDESS shall:

(1) Ensure the establishment of elected school boards in DoD DDESS arrangements.

(2) Monitor compliance by the Superintendent and school boards with applicable statutory and regulatory requirements, and this part. In the event of suspected noncompliance, the Director, DoD DDESS, shall take appropriate action, which will include notification of the Superintendent and the school board president of the affected DoD DDESS arrangement.

(3) Determine when the actions of a school board conflict with an applicable statute, regulation, or other guidance or when there is a conflict in the views of the school board and the Superintendent. When such conflicts occur, the Director, DoD DDESS, shall assist the Superintendent and the school board in resolving them or direct that such actions be discontinued. Such disapprovals must be in writing to the school board and the Superintendent concerned and shall state the specific supporting reason or reasons.

(c) Ensure the school board for DoD DDESS arrangements shall:

(1) Participate in the development and oversight of fiscal, personnel, and educational policies, procedures, and programs for the DoD DDESS arrangement concerned, consistent with this part.

(2) Approve agendas and prepare minutes for school board meetings. A copy of the approved minutes of school board meetings shall be forwarded to the Director, DoD DDESS, within 10 working days after the date the minutes are approved.

(3) Provide to the Director, DoD DDESS, names of applicants for a vacancy in the Superintendent's position after a recruitment has been accomplished. The school board shall submit to the Director, DoD DDESS, a list of all applicants based on its review of the applications and interviews (either in person or telephonically) of the applicants. The list of applicants will be accompanied by the recommended choice of the school board. The Director will select the Superintendent and will submit written notice with justification to the school board if the recommendation of the school board is not followed.

(4) Prepare an annual written on-site review of the Superintendent's performance for consideration by the Director, DoD DDESS. The written review shall be based on critical elements recommended by the school board and Superintendent and approved by the Director, DoD DDESS. The school board's review will be an official attachment to the Superintendent's appraisal.

(5) Participate in the development of the school system's budget for submission to the Director, DoD DDESS, for his or her approval as endorsed by the school board; and participate in the oversight of the approved budget, in conjunction with the Superintendent, as appropriate for operation of the school arrangement.

(6) Invite the Superintendent or designee to attend all school board meetings.

(7) Provide counsel to the Superintendent on the operation of the school and the implementation of the approved budget.

(8) Channel communications with school employees to the DoD DDESS Superintendent. Refer all applications, complaints, and other communications, oral or written, to the DoD DDESS Arrangement Superintendents.

(9) Participate in the development of school policies, rules, and regulations, in conjunction with the Superintendent, and recommend which policies shall be reflected in the School Policy Manual. At a minimum, the Policy Manual, which shall be issued by the Superintendent, shall include following:

(i) A statement of the school philosophy.

(ii) The role and responsibilities of school administrative and educational personnel.

(iii) Provisions for promulgation of an annual school calendar.

(iv) Provisions on instructional services, including policies for development and adoption of curriculum and textbooks.

(v) Regulations affecting students, including attendance, grading, promotion, retention, and graduation criteria, and the student code of rights, responsibilities, and conduct.

(vi) School policy on community relations and noninstructional services, including maintenance and custodial services, food services, and student transportation.

(vii) School policy and legal limits on financial operations, including accounting, disbursing, contracting, and procurement; personnel operations, including conditions of employment, and labor management regulations; and the processing of, and response to, complaints.

(viii) Procedures providing for new school board member orientation.

(ix) Any other matters determined by the school board and the superintendent to be necessary.

(10) Under 10 U.S.C. 2164(b)(4)(B), prepare and submit formal appeals to directives and other guidance that in the view of the school board adversely impact the operation of the school system either through the operation and management of DoD DDESS or a specific DoD DDESS arrangement. Written formal appeals with justification and supporting documentation shall be submitted by the school board or Superintendent to ASD(FMP). The ASD(FMP) shall make the final decision on all formal appeals. The Director, Dod DDESS, will provide the appealing body written review of the findings relating to the merits of the appeal. Formal appeals will be handled expeditiously by all parties to minimize any adverse impact on the operation of the DoD DDESS system.

(d) Ensure school board operating procedures are as follows:

(1) The school board shall operate from a written agenda at all meetings. Matters not placed on the agenda before the start of the meeting, but approved by a majority of the school board present, may be considered at the ongoing meeting and added to the agenda at that time.

(2) A majority of the total number of school board members authorized shall constitute a quorum.

(3) School board meetings shall be conducted a minimum of 9 times a year. The school board President or designee will provide school board members timely notice of all meetings. All regularly scheduled school board meetings will be open to the public. Executive session meetings may be closed under 10 U.S.C. 2164(d)(6).

(4) The school board shall not be bound in any way by any action or statement of an individual member or group of members of the board except when such action or statement is approved by a majority of the school board members during a school board meeting.

(5) School board members are eligible for reimbursement for official travel in accordance with the DoD Joint Travel Regulations and guidance issued by the Director, DoD DDESS.

(6) School board members may be removed by the ASD (FMP) for dereliction of duty, malfeasance, or other grounds for cause shown. The school board concerned may recommend such removal with a two-thirds majority vote. Before a member may be removed, the member shall be afforded due process, to include written notification of the basis for the action, review of the evidence or documentation considered by the school board, and an opportunity to respond to the allegations.

(a) Composition of school board. (1) The school board shall recommend to the Director, DoD DDESS, the number of elected school board voting members, which shall be not fewer than 3 and no more than 9, depending upon local needs. The members of the school board shall select by majority vote of the total number of school board members authorized at the beginning of each official school board term, one member to act as President and another to act as Vice President. The President and Vice President shall each serve for 1 year. The President shall preside over school board meetings and provide leadership for related activities and functions. The Vice President shall serve in the absence of the President. If the position of President is vacated for any reason, the Vice President shall be the President until the next regularly scheduled school board election. The resulting vacancy in the position of the Vice President shall be filled by the majority vote of all members of the incumbent board.

(2) The DoD DDESS Arrangement Superintendent, or designee, shall serve as a non-voting observer to all school board meetings. The Installation Commander, or designee, shall convey command concerns to the school board and the Superintendent and keep the school board and the Superintendent informed of changes and other matters within the host installation that affect school expenditures or operations.

(3) School board members may not receive compensation for their service on the school board.

(4) Members of the school board may not have any financial interest in any company or organization doing business with the school system. Waivers to this restriction may be granted on a case-by-case basis by the Director, DoD DDESS, in coordination with the Office of General Counsel of the Department of Defense.

(b) Electorate of the school board. The electorate for each school board seat shall be composed of parents of the students attending the school. Each member of the electorate shall have one vote.

(c) Election of school board members. (1) To be elected as a member of the school board, an individual must be a resident of the military installation in which the DoD DDESS arrangement is located, or in the case of candidates for the Antilles Consolidated School System School Board, be the parent of an eligible child currently enrolled in the school system. Personnel employed by a DoD DDESS arrangement may not serve as school board members.

(2) The board shall determine the term of office for elected members, not to exceed 3 years, and the limit on the number of terms, if any. If the board fails to set these terms by the first day of the first full month of the school year, the terms will be set at 3 years, with a maximum of 2 consecutive terms.

(3) When there is a sufficient number of school board vacancies that result in not having a quorum, which is defined as a majority of seats authorized, a special election shall be called by the DoD DDESS Arrangement Superintendent or designee. A special election is an election that is held between the regularly scheduled annual school board election. The nomination and election procedures for a special election shall be the same as those of regularly scheduled school board elections. Individuals elected by special election shall serve until the next regularly scheduled school board election. Vacancies may occur due to the resignation, death, removal for cause, transfer, or disenrollment of a school board member's child(ren) from the DoD DDESS arrangement.

(4) The board shall determine a schedule for regular elections. Parents shall have adequate notice of the time and place of the election. The election shall be by secret ballot. All votes must be cast in person at the time and place of the election. The candidate(s) receiving the greatest number of votes shall be elected as school board member(s).

(5) Each candidate for school board membership must be nominated in writing by at least one member of the electorate to be represented by the candidate. Votes may be cast at the time of election for write-in candidates who have not filed a nomination petition if the write-in candidates otherwise are qualified to serve in the positions sought.

(6) The election process shall provide staggered terms for board members; e.g., on the last day of the last month of each year, the term for some board members will expire.

(7) The DoD DDESS Superintendent, in consultation with the school board, shall be responsible for developing the plans for nominating school board members and conducting the school board election and the special election process. The DoD DDESS Superintendent shall announce election results within 7 working days of the election.

This part is reissued and:

(a) Establishes uniform policies, procedures, and standards for the review of discharges or dismissals under 10 U.S.C. 1553.

(b) Provides guidelines for discharge review by application or on motion of a DRB, and the conduct of discharge reviews and standards to be applied in such reviews which are designed to ensure historically consistent uniformity in execution of this function, as required under Pub. L. 95-126.

(c) Assigns responsibility for administering the program.

(d) Makes provisions for public inspection, copying, and distribution of DRB documents through the Armed Forces Discharge Review/Correction Board Reading Room.

(e) Establishes procedures for the preparation of decisional documents and index entries.

(f) Provides guidance for processing complaints concerning decisional documents and index entries.

The provisions of this part 70 apply to the Office of the Secretary of Defense (OSD) and the Military Departments. The terms, “Military Services,” and “Armed Forces,” as used herein, refer to the Army, Navy, Air Force and Marine Corps.

(a) Applicant. A former member of the Armed Forces who has been discharged or dismissed administratively in accordance with Military Department regulations or by sentence of a court-martial (other than a general court-martial) and under statutory regulatory provisions whose application is accepted by the DRB concerned or whose case is heard on the DRB's own motion. If the former member is deceased or incompetent, the term “applicant” includes the surviving spouse, next-of-kin, or legal representative who is acting on behalf of the former member. When the term “applicant” is used in §§ 70.8 through 70.10, it includes the applicant's counsel or representative, except that the counsel or representative may not submit an application for review, waive the applicant's right to be present at a hearing, or terminate a review without providing the DRB an appropriate power of attorney or other written consent of the applicant.

(b) Complainant. A former member of the Armed Forces (or the former member's counsel) who submits a complaint under § 70.10 with respect to the decisional document issued in the former member's own case; or a former member of the Armed Forces (or the former member's counsel) who submits a complaint under § 70.10 stating that correction of the decisional document will assist the former member in preparing for an administrative or judicial proceeding in which the former member's own discharge will be at issue.

(c) Counsel or Representative. An individual or agency designated by the applicant who agrees to represent the applicant in a case before the DRB. It includes, but is not limited to: a lawyer who is a member of the bar of a Federal court or of the highest court of a State; an accredited representative designated by an organization recognized by the Administrator of Veterans Affairs; a representative from a State agency concerned with veterans affairs; and representatives from private organizations or local government agencies.

(d) Discharge. A general term used in this Directive that includes dismissal and separation or release from active or inactive military status, and actions that accomplish a complete severance of all military status. This term also includes the assignment of a reason for such discharge and characterization of service (32 CFR part 41).

(e) Discharge Review. The process by which the reason for separation, the procedures followed in accomplishing separation, and the characterization of service are evaluated. This includes determinations made under the provisions of 38 U.S.C. 3103(e)(2).

(f) Discharge Review Board (DRB). An administrative board constituted by the Secretary of the Military Department concerned and vested with discretionary authority to review discharges and dismissals under the provisions of 10 U.S.C. 1553. It may be configured as one main element or two or more elements as designated by the Secretary concerned.

(g) DRB Panel. An element of a DRB, consisting of five members, authorized by the Secretary concerned to review discharges and dismissals.

(h) DRB Traveling or Regional Panel. A DRB panel that conducts discharge reviews in a location outside the National Capital Region (NCR).

(i) Hearing. A review involving an appearance before the DRB by the applicant or on the applicant's behalf by a counsel or representative.

(j) Hearing Examination. The process by which a designated officer of a DRB prepares a presentation for consideration by a DRB in accordance with regulations prescribed by the Secretary concerned.

(k) National Capital Region (NCR). The District of Columbia; Prince Georges and Montgomery Counties in Maryland; Arlington, Fairfax, Loudoun, and Prince William Counties in Virginia; and all cities and towns included within the outer boundaries of the foregoing counties.

(l) President, DRB. A person designated by the Secretary concerned and responsible for the supervision of the discharge review function and other duties as assigned.

(a) The Secretaries of the Military Departments have the authority for final decision and the responsibility for the operation for their respective discharge review programs under 10 U.S.C. 1553.

(b) The Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) (ASD(MRA&L)) shall:

(1) Resolve all issues concerning DRBs that cannot be resolved among the Military Departments.

(2) Ensure uniformity among the Military Departments in the rights afforded applicants in discharge reviews.

(3) Modify or supplement the enclosures to this part.

(4) Maintain the index of decisions and provide for timely modification of index categories to reflect changes in discharge review policies, procedures, and standards issued by the OSD and the Military Departments.

(c) The Secretary of the Army, as the designated administrative focal point for DRB matters, shall:

(1) Effect necessary coordination with other governmental agencies regarding continuing applicability of this part and resolve administrative procedures relating thereto.

(2) Review suggested modifications to this part, including implementing documents; monitor the implementing documents of the Military Departments; resolve differences, when practicable; recommend specific changes; provide supporting rationale to the ASD(MRA&L) for decision; and include appropriate documentation through the Office of the ASD(MRA&L) and the OSD Federal Register liaison officer to effect publication in the Federal Register.

(3) Maintain the DD Form 293, “Application for Review of Discharge or Separation from the Armed Forces of the United States,” and republish as necessary with appropriate coordination of the other Military Departments and the Office of Management and Budget.

(4) Respond to all inquiries from private individuals, organizations, or public officials with regard to DRB matters. When the specific Military Service can be identified, refer such correspondence to the appropriate DRB for response or designate an appropriate activity to perform this task.

(5) Provide overall guidance and supervision to the Armed Forces Discharge Review/Correction Board Reading Room with staff augmentation, as required, by the Departments of the Navy and Air Force.

(6) Ensure that notice of the location, hours of operation, and similar types of information regarding the Reading Room is published in the Federal Register.

(a) Discharge review procedures are prescribed in § 70.8.

(b) Discharge Review Standards are prescribed in § 70.9 and constitute the basic guidelines for the determination whether to grant or deny relief in a discharge review.

(c) Complaint Procedures about decisional documents are prescribed in § 70.10.

(a) Reporting requirements. (1) The reporting requirement prescribed in § 70.8(n) is assigned Report Control Symbol DD-M(SA)1489.

(2) All reports must be consistent with DoD Directive 5000.11, “Data Elements and Data Codes Standardization Program,” December 7, 1964.

(b) Use of standard data elements. The data requirements prescribed by this part shall be consistent with DoD 5000.12-M, “DoD Manual for Standard Data Elements,” December 1981. Any reference to a date should appear as (YYMMDD), while any name entry should appear as (Last name, first name, middle initial).

This part is effective immediately for the purpose of preparing implementing documents. DoD Directive 1332.28, March 29, 1978, is officially canceled, effective November 27, 1982. This part applies to all discharge review proceedings conducted on or after November 27, 1982. § 70.10 applies to all complaint proceedings conducted on or after September 28, 1982. Final action on complaints shall not be taken until September 28, 1982, unless earlier corrective action is requested expressly by the applicant (or the applicant's counsel) whose case is the subject of the decisional document. If earlier corrective action is requested, it shall be taken in accordance with § 70.10.

(a) Application for review—(1) General. Applications shall be submitted to the appropriate DRB on DD Form 293, “Application for Review of Discharge or Separation from the Armed Forces of the United States,” with such other statements, affidavits, or documentation as desired. It is to the applicant's advantage to submit such documents with the application or within 60 days thereafter in order to permit a thorough screening of the case. The DD Form 293 is available at most DoD installations and regional offices of the Veterans Administration, or by writing to: DA Military Review Boards Agency, Attention: SFBA (Reading Room), Room 1E520, The Pentagon, Washington, DC 20310.

(2) Timing. A motion or request for review must be made within 15 years after the date of discharge or dismissal.

(3) Applicant's responsibilities. An applicant may request a change in the character of or reason for discharge (or both).

(i) Character of discharge. Block 7 of DD Form 293 provides an applicant an opportunity to request a specific change in character of discharge (for example, General Discharge to Honorable Discharge; Other than Honorable Discharge to General or Honorable Discharge). Only a person separated on or after 1 October 1982 while in an entry level status may request a change from Other than Honorable Discharge to Entry Level Separation. A request for review from an applicant who does not have an Honorable Discharge shall be treated as a request for a change to an Honorable Discharge unless the applicant requests a specific change to another character of discharge.

(ii) Reason for discharge. Block 7 of DD Form 293 provides an applicant an opportunity to request a specific change in the reason for discharge. If an applicant does not request a specific change in the reason for discharge, the DRB shall presume that the request for review does not involve a request for change in the reason for discharge. Under its responsibility to examine the propriety and equity of an applicant's discharge, the DRB shall change the reason for discharge if such a change is warranted.

(iii) The applicant must ensure that issues submitted to the DRB are consistent with the request for change in discharge set forth in block 7 of the DD Form 293. If an ambiguity is created by a difference between an applicant's issue and the request in block 7, the DRB shall respond to the issue in the context of the action requested in block 7. In the case of a hearing, the DRB shall attempt to resolve the ambiguity under paragraph (a)(5) of this section.

(4) Request for consideration of specific issues. An applicant may request the DRB to consider specific issues which, in the opinion of the applicant, form a basis for changing the character of or reason for discharge, or both. In addition to the guidance set forth in this section, applicants should consult the other sections in this part (particularly paragraphs (c), (d), and (e) of this section and §§ 70.9 and 70.10 before submitting issues for consideration by the DRB.

(i) Submission of issues on DD Form 293. Issues must be provided to the DRB on DD Form 293 before the DRB closes the review process for deliberation.

(A) Issues must be clear and specific. An issue must be stated clearly and specifically in order to enable the DRB to understand the nature of the issue and its relationship to the applicant's discharge.

(B) Separate listing of issues. Each issue submitted by an applicant should be listed separately. Submission of a separate statement for each issue provides the best means of ensuring that the full import of the issue is conveyed to the DRB.

(C) Use of DD Form 293. DD Form 293 provides applicants with a standard format for submitting issues to the DRB, and its use:

(1) Provides a means for an applicant to set forth clearly and specifically those matters that, in the opinion of the applicant, provide a basis for changing the discharge;

(2) Assists the DRB in focusing on those matters considered to be important by an applicant;

(3) Assists the DRB in distinguishing between a matter submitted by an applicant in the expectation that it will be treated as a decisional issue under paragraph (e) of this section, and those matters submitted simply as background or supporting materials;

(4) Provides the applicant with greater rights in the event that the applicant later submits a complaint under § 70.10(d)(1)(iii) concerning the decisional document;

(5) Reduces the potential for disagreement as to the content of an applicant's issue.

(D) Incorporation by reference. If the applicant makes an additional written submission, such as a brief, in support of the application, the applicant may incorporate by reference specific issues set forth in the written submission in accordance with the guidance on DD Form 293. The reference shall be specific enough for the DRB to identify clearly the matter being submitted as an issue. At a minimum, it shall identify the page, paragraph, and sentence incorporated. Because it is to the applicant's benefit to bring such issues to the DRB's attention as early as possible in the review, applicants who submit a brief are strongly urged to set forth all such issues as a separate item at the beginning of the brief. If it reasonably appears that the applicant inadvertently has failed expressly to incorporate an issue which the applicant clearly identifies as an issue to be addressed by the DRB, the DRB shall respond to such an issue under paragraphs (d) and (e) of this section.

(E) Effective date of the new Form DD 293. With respect to applications received before November 27, 1982, the DRB shall consider issues clearly and specifically stated in accordance with the rules in effect at the time of submission. With respect to applications received on or after November 27, 1982, if the applicant submits an obsolete DD Form 293, the DRB shall accept the application, but shall provide the applicant with a copy of the new form and advise the applicant that it will only respond to issues submitted on the new form in accordance with this part.

(ii) Relationship of issues to character of or reason for discharge. If the application applies to both character of and reason for discharge, the applicant is encouraged, but not required, to identify the issue as applying to the character of or reason for discharge (or both). Unless the issue is directed at the reason for discharge expressly or by necessary implication, the DRB will presume that it applies solely to the character of discharge.

(iii) Relationship of issues to the standards for discharge review. The DRB reviews discharges on the basis of issues of propriety and equity. The standards used by the DRB are set forth in § 70.9. The applicant is encouraged to review those standards before submitting any issue upon which the applicant believes a change in discharge should be based.

(A) Issues concerning the equity of the discharge. An issue of equity is a matter that involves a determination whether a discharge should by changed under the equity standards of § 70.9. This includes any issue, submitted by the applicant in accordance with paragraph (a)(4)(i) of this section, that is addressed to the discretionary authority of the DRB.

(B) Issues concerning the propriety of a discharge. An issue of propriety is a matter that involves a determination whether a discharge should be changed under the propriety standards of § 70.9. This includes an applicant's issue, submitted in accordance with paragraph (a)(4)(i) of this section, in which the applicant's position is that the discharge must be changed because of an error in the discharge pertaining to a regulation, statute, constitutional provision, or other source of law (including a matter that requires a determination whether, under the circumstances of the case, action by military authorities was arbitrary, capricious, or an abuse of discretion). Although a numerical reference to the regulation or other sources of law alleged to have been violated is not necessarily required, the context of the regulation or a description of the procedures alleged to have been violated normally must be set forth in order to inform the DRB adequately of the basis for the applicant's position.

(C) The applicant's identification of an issue. The applicant is encouraged, but not required, to identify an issue as pertaining to the propriety or the equity to the discharge. This will assist the DRB in assessing the relationship of the issue to propriety or equity under paragraph (e)(1)(iii) of this section.

(iv) Citation of matter from decisions. The primary function of the DRB involves the exercise of dicretion on a case-by-case basis. See § 70.9(b)(3). Applicants are not required to cite prior decisions as the basis for a change in discharge. If the applicant wishes to bring the DRB's attention to a prior decision as background or illustrative material, the citation should be placed in a brief or other supporting documents. If, however, it is the applicant's intention to submit an issue that sets forth specific principles and facts from a specific cited decision, the following requirements apply with respect to applications received on or after November 27, 1982.

(A) The issue must be set forth or expressly incorporated in the “Applicant's Issue” portion of DD Form 293.

(B) If an applicant's issue cites a prior decision (of the DRB, another Board, an agency, or a court), the applicant shall describe the specific principles and facts that are contained in the prior decision and explain the relevance of cited matter to the applicant's case.

(C) To ensure timely consideration of principles cited from unpublished opinions (including decisions maintained by the Armed Forces Discharge Review Board/Corrective Board Reading Room), applicants must provide the DRB with copies of such decisions or of the relevant portion of the treatise, manual, or similar source in which the principles were discussed. At the applicant's request, such materials will be returned.

(D) If the applicant fails to comply with the requirements in paragraphs (a)(4)(iv) (A), (B), and (C), the decisional document shall note the defect, and shall respond to the issue without regard to the citation.

(5) Identification by the DRB of issues submitted by an applicant. The applicant's issues shall be identified in accordance with this section after a review of the materials noted under paragraph (c)(4), is made.

(i) Issues on DD Form 293. The DRB shall consider all items submitted as issues by an applicant on DD Form 293 (or incorporated therein) in accordance with paragraph (a)(4)(i). With respect to applications submitted before November 27, 1982, the DRB shall consider all issues clearly and specifically stated in accordance with the rules in effect at the time of the submission.

(ii) Amendment of issues. The DRB shall not request or instruct an applicant to amend or withdraw any matter submitted by the applicant. Any amendment or withdrawal of an issue by an applicant shall be confirmed in writing by the applicant. Nothing in this provision:

(A) Limits the DRB's authority to question an applicant as to the meaning of such matter;

(B) Precludes the DRB from developing decisional issues based upon such questions;

(C) Prevents the applicant from amending or withdrawing such matter any time before the DRB closes the review process for deliberation; or

(D) Prevents the DRB from presenting an applicant with a list of proposed decisional issues and written information concerning the right of the applicant to add to, amend, or withdraw the applicant's submission. The written information will state that the applicant's decision to take such action (or decline to do so) will not be used against the applicant in the consideration of the case.

(iii) Additional issues identified during a hearing. The following additional procedure shall be used during a hearing in order to promote the DRB's understanding of an applicant's presentation. If, before closing the case for deliberation, the DRB believes that an applicant has presented an issue not listed on DD Form 293, the DRB may so inform the applicant, and the applicant may submit the issue in writing or add additional written issues at that time. This does not preclude the DRB from developing its own decisional issues.

(6) Notification of possible bar to benefits. Written notification shall be made to each applicant whose record indicates a reason for discharge that bars receipt of benefits under 38 U.S.C. 3103(a). This notification will advise the applicant that separate action by the Board for Correction of Military or Naval Records or the Veterans Administration may confer eligibility for VA benefits. Regarding the bar to benefits based upon the 180 days consecutive unauthorized absence, the following applies:

(i) Such absence must have been included as part of the basis for the applicant's discharge under other than honorable conditions.

(ii) Such absence is computed without regard to the applicant's normal or adjusted expiration of term of service.

(b) Conduct of reviews. (1) Members. As designated by the Secretary concerned, the DRB and its panels, if any, shall consist of five members. One member of the DRB shall be designated as the president and may serve as a presiding officer. Other officers may be designated to serve as presiding officers for DRB panels under regulations prescribed by the Secretary concerned.

(2) Locations. Reviews by a DRB will be conducted in the NCR and such other locations as designated by the Secretary concerned.

(3) Types of review. An applicant, upon request, is entitled to:

(i) Record review. A review of the application, available service records, and additional documents (if any) submitted by the applicant.

(ii) Hearing. A review involving an appearance before the DRB by the applicant or counsel or representative (or both).

(4) Applicant's expenses. Unless otherwise specified by law or regulation, expenses incurred by the applicant, witnesses, counsel or representative will not be paid by the Department of Defense.

(5) Withdrawal of application. An applicant shall be permitted to withdraw an application without prejudice at any time before the scheduled review.

(6) Failure to appear at a hearing or respond to a scheduling notice. (i) Except as otherwise authorized by the Secretary concerned, further opportunity for a hearing shall not be made available in the following circumstances to an applicant who has requested a hearing:

(A) When the applicant has been sent a letter containing the month and location of a proposed hearing and fails to make a timely response; or

(B) When the applicant, after being notified by letter of the time and place of the hearing, fails to appear at the appointed time, either in person or by representative, without having made a prior, timely request for a continuation, postponement, or withdrawal.

(ii) In such cases, the applicant shall be deemed to have waived the right to a hearing, and the DRB shall complete its review of the discharge. Further request for a hearing shall not be granted unless the applicant can demonstrate that the failure to appear or respond was due to circumstances beyond the applicant's control.

(7) Continuance and postponements. (i) A continuance of a discharge review hearing may be authorized by the president of the DRB or presiding officer of the panel concerned, provided that such continuance is of reasonable duration and is essential to achieving a full and fair hearing. When a proposal for continuance is indefinite, the pending application shall be returned to the applicant with the option to resubmit when the case is fully ready for review.

(ii) Postponements of scheduled reviews normally shall not be permitted other than for demonstrated good and sufficient reason set forth by the applicant in a timely manner, or for the convenience of the government.

(8) Reconsideration. A discharge review shall not be subject to reconsideration except:

(i) When the only previous consideration of the case was on the motion of the DRB;

(ii) When the original discharge review did not involve a hearing and a hearing is now desired, and the provisions of paragraph (b)(6) of this section do not apply;

(iii) When changes in discharge policy are announced after an earlier review of an applicant's discharge, and the new policy is made expressly retroactive;

(iv) When the DRB determines that policies and procedures under which the applicant was discharged differ in material respects from policies and procedures currently applicable on a Service-wide basis to discharges of the type under consideration, provided that such changes in policies or procedures represent a substantial enhancement of the rights afforded a respondent in such proceedings;

(v) When an individual is to be represented by a counsel or representative, and was not so represented in any previous consideration of the case by the DRB;

(vi) When the case was not previously considered under uniform standards published pursuant to Pub. L. 95-126 and such application is made within 15 years after the date of discharge; or

(vii) On the basis of presentation of new, substantial, relevant evidence not available to the applicant at the time of the original review. The decision whether evidence offered by an applicant in support of a request for reconsideration is in fact new, substantial, relevant, and was not available to the applicant at the time of the original review will be based on a comparison of such evidence with the evidence considered in the previous discharge review. If this comparison shows that the evidence submitted would have had a probable effect on matters concerning the propriety or equity of the discharge, the request for reconsideration shall be granted.

(9) Availability of records and documents. (i) Before applying for discharge review, potential applicants or their designated representatives may obtain copies of their military personnel records by submitting a General Services Administration Standard Form 180, “Request Pertaining to Military Records,” to the National Personnel Records Center (NPRC), 9700 Page Boulevard, St. Louis, MO 62132. Once the application for discharge review (DD Form 293) is submitted, an applicant's military records are forwarded to the DRBs where they cannot be reproduced. Submission of a request for an applicant's military records, including a request under the Freedom of Information Act (32 CFR part 286) or Privacy Act (32 CFR part 286a) after the DD Form 293 has been submitted, shall result automatically in the temporary suspension of processing of the application for discharge review until the requested records are sent to an appropriate location for copying, are copied, and are returned to the headquarters of the DRB. Processing of the application shall then be resumed at whatever stage of the discharge review process is practicable. Applicants are encouraged to submit any request for their military records before applying for discharge review rather than after submitting DD Form 293, to avoid delays in processing of applications and scheduling of reviews. Applicants and their counsel also may examine their military personnel records at the site of their scheduled review before the hearing. DRBs shall notify applicants of the dates the records are available for examination in their standard scheduling information.

(ii) If the DRB is not authorized to provide copies of documents that are under the cognizance of another government department, office, or activity, applications for such information must be made by the applicant to the cognizant authority. The DRB shall advise the applicant of the mailing address of the government department, office, or activity to which the request should be submitted.

(iii) If the official records relevant to the discharge review are not available at the agency having custody of the records, the applicant shall be so notified and requested to provide such information and documents as may be desired in support of the request for discharge review. A period of not less than 30 days shall be allowed for such documents to be submitted. At the expiration of this period, the review may be conducted with information available to the DRB.

(iv) A DRB may take steps to obtain additional evidence that is relevant to the discharge under consideration beyond that found in the official military records or submitted by the applicant, if a review of available evidence suggests that it would be incomplete without the additional information, or when the applicant presents testimony or documents that require additional information to evaluate properly. Such information shall be made available to the applicant, upon request, with appropriate modifications regarding classified material.

(A) In any case heard on request of an applicant, the DRB shall provide the applicant and counsel or representative, if any, at a reasonable time before initiating the decision process, a notice of the availability of all regulations and documents to be considered in the discharge review, except for documents in the official personnel or medical records and any documents submitted by the applicant. The DRB shall also notify the applicant or counsel or representative:

(1) Of the right to examine such documents or to be provided with copies of the documents upon request;

(2) Of the date by which such requests must be received; and

(3) Of the opportunity to respond within a reasonable period of time to be set by the DRB.

(B) When necessary to acquaint the applicant with the substance of a classified document, the classifying authority, on the request of the DRB, shall prepare a summary of or an extract from the document, deleting all references to sources of information and other matters, the disclosure of which, in the opinion of the classifying authority, would be detrimental to the national security interests of the United States. Should preparation of such summary be deemed impracticable by the classifying authority, information from the classified sources shall not be considered by the DRB in its review of the case.

(v) Regulations of a Military Department may be obtained at many installations under the jurisdiction of the Military Department concerned or by writing to the following address: DA Military Review Boards Agency, Attention: SFBA (Reading Room), room 1E520, Washington, DC 20310.

(10) Recorder/Secretary or Assistant. Such a person shall be designated to assist in the functioning of each DRB in accordance with the procedures prescribed by the Secretary of the Military Department concerned.

(11) Hearings. Hearings (including hearing examinations) that are conducted shall recognize the rights of the individual to privacy. Accordingly, presence at hearings of individuals other than those required shall be limited to persons authorized by the Secretary concerned or expressly requested by the applicant, subject to reasonable limitations based upon available space. If, in the opinion of the presiding officer, the presence of other individuals could be prejudicial to the interests of the applicant or the government, hearings may be held in closed session.

(12) Evidence and testimony. (i) The DRB may consider any evidence obtained in accordance with this part.

(ii) Formal rules of evidence shall not be applied in DRB proceedings. The presiding officer shall rule on matters of procedure and shall ensure that reasonable bounds of relevancy and materiality are maintained in the taking of evidence and presentation of witnesses.

(iii) Applicants undergoing hearings shall be permitted to make sworn or unsworn statements, if they so desire, or to introduce witnesses, documents, or other information on their behalf, at no expense to the Department of Defense.

(iv) Applicants may also make oral or written arguments personally or through counsel or representatives.

(v) Applicants who present sworn or unsworn statements and witnesses may be questioned by the DRB. All testimony shall be taken under oath or affirmation unless the applicant specifically requests to make an unsworn statement.

(vi) There is a presumption of regularity in the conduct of governmental affairs. This presumption can be applied in any review unless there is substantial credible evidence to rebut the presumption.

(c) Decision process. (1) The DRB or the DRB panel, as appropriate, shall meet in plenary session to review discharges and exercise its discretion on a case-by-case basis in applying the standards set forth in § 70.9.

(2) The presiding officer is responsible for the conduct of the discharge review. The presiding officer shall convene, recess, and adjourn the DRB panel as appropriate and shall maintain an atmosphere of dignity and decorum at all times.

(3) Each DRB member shall act under oath or affirmation requiring careful, objective consideration of the application. DRB members are responsible for eliciting all facts necessary for a full and fair hearing. They shall consider all information presented to them by the applicant. In addition, they shall consider available Military Service and health records, together with other records that may be in the files of the Military Department concerned and relevant to the issues before the DRB, and any other evidence obtained in accordance with this part.

(4) The DRB shall identify and address issues after a review of the following material obtained and presented in accordance with this part and the implementing instructions of the DRB: Available official records, documentary evidence submitted by or on behalf of an applicant, presentation of a hearing examination, testimony by or on behalf of an applicant, oral or written arguments presented by or on behalf of an applicant, and any other relevant evidence.

(5) If an applicant who has requested a hearing does not respond to a notification letter or does not appear for a scheduled hearing, the DRB may complete the review on the basis of material previously submitted.

(6) Application of standards. (i) When a DRB determines that an applicant's discharge was improper (§ 70.9(b)), the DRB will determine which reason for discharge should have been assigned based upon the facts and circumstances before the discharge authority, including the Service regulations governing reasons for discharge at the time the applicant was discharged. Unless it is also determined that the discharge was inequitable (§ 70.9(c)), the provisions as to characterization in the regulation under which the applicant should have been discharged will be considered in determining whether further relief is warranted.

(ii) When the DRB determines that an applicant's discharge was inequitable (see § 70.9(c)), any change will be based on the evaluation of the applicant's overall record of service and relevant regulations of the Military Service of which the applicant was a member.

(7) Voting shall be conducted in closed session, a majority of the five members’ votes constituting the DRB decision. Voting procedures shall be prescribed by the Secretary of the Military Department concerned.

(8) Details of closed session deliberations of a DRB are privileged information and shall not be divulged.

(9) There is no requirement for a statement of minority views in the event of a split vote. The minority, however, may submit a brief statement of its views under procedures established by the Secretary concerned.

(10) DRBs may request advisory opinions from staff officers of their Military Departments. These opinions are advisory in nature and are not binding on the DRB in its decision-making process.

(11) The preliminary determinations required by 38 U.S.C. 3103(e) shall be made upon majority vote of the DRB concerned on an expedited basis. Such determination shall be based upon the standards set forth in § 70.9 of this part.

(12) The DRB shall: (i) Address items submitted as issues by the applicant under paragraph (d) of this section;

(ii) Address decisional issues under paragraph (e) of this section; and

(iii) Prepare a decisional document in accordance with paragraph (h) of this section.

(d) Response to items submitted as issues by the applicant—(1) General guidance. (i) If an issue submitted by an applicant contains two or more clearly separate issues, the DRB should respond to each issue under the guidance of this paragraph as if it had been set forth separately by the applicant.

(ii) If an applicant uses a “building block” approach (that is, setting forth a series of conclusions on issues that lead to a single conclusion purportedly warranting a change in the applicant's discharge), normally there should be a separate response to each issue.

(iii) Nothing in this paragraph precludes the DRB from making a single response to multiple issues when such action would enhance the clarity of the decisional document, but such response must reflect an adequate response to each separate issue.

(2) Decisional issues. An item submitted as an issue by an applicant in accordance with this part shall be addressed as a decisional issue under paragraph (e), in the following circumstances:

(i) When the DRB decides that a change in discharge should be granted, and the DRB bases its decision in whole or in part on the applicant's issue; or

(ii) When the DRB does not provide the applicant with the full change in discharge requested, and the decision is based in whole or in part on the DRB's disagreement on the merits with an issue submitted by the applicant.

(3) Response to items not addressed as decisional issues. (i) If the applicant receives the full change in discharge requested (or a more favorable change), that fact shall be noted and the basis shall be addressed as a decisional issue. No further response is required to other issues submitted by the applicant.

(ii) If the applicant does not receive the full change in discharge requested with respect to either the character of or reason for discharge (or both), the DRB shall address the items submitted by the applicant under paragraph (e) of this section (decisional issues) unless one of the following responses is applicable:

(A) Duplicate issues. The DRB may state that there is a full response to the issue submitted by the applicant under a specified decisional issue. This response may be used only when one issue clearly duplicates another or the issue clearly requires discussion in conjunction with another issue.

(B) Citations without principles and facts. The DRB may state that the applicant's issue, which consists of a citation to a decision without setting forth any principles and facts from the decision that the applicant states are relevant to the applicant's case, does not comply with the requirements of paragraph (a)(4)(iv)(A).

(C) Unclear issues. The DRB may state that it cannot respond to an item submitted by the applicant as an issue because the meaning of the item is unclear. An issue is unclear if it cannot be understood by a reasonable person familiar with the discharge review process after a review of the materials considered under paragraph (c)(4) of this section.

(D) Nonspecific issues. The DRB may state that it cannot respond to an item submitted by the applicant as an issue because it is not specific. A submission is considered not specific if a reasonable person familiar with the discharge review process after a review of the materials considered under paragraph (c)(4) of this section, cannot determine the relationship between the applicant's submission and the particular circumstances of the case. This response may be used only if the submission is expressed in such general terms that no other response is applicable. For example, if the DRB disagrees with the applicant as to the relevance of matters set forth in the submission, the DRB normally will set forth the nature of the disagreement under the guidance in paragraph (e) of this section, with respect to decisional issues, or it will reject the applicant's position on the basis of paragraphs (d)(3)(ii)(A) or (d)(3)(ii)(B) of this section. If the applicant's submission is so general that none of those provisions is applicable, then the DRB may state that it cannot respond because the item is not specific.

(e) Decisional issues. (1) General. Under the guidance in this section, the decisional document shall discuss the issues that provide a basis for the decision whether there should be a change in the character of or reason for discharge. In order to enhance clarity, the DRB should not address matters other than issues relied upon in the decision or raised by the applicant.

(i) Partial change. When the decision changes a discharge, but does not provide the applicant with the full change in discharge requested, the decisional document shall address both the issues upon which change is granted and the issues upon which the DRB denies the full change requested.

(ii) Relationship of issue to character of or reason for discharge. Generally, the decisional document should specify whether a decisional issue applies to the character of or reason for discharge (or both), but it is not required to do so.

(iii) Relationship of an issue to propriety or equity. (A) If an applicant identifies an issue as pertaining to both propriety and equity, the DRB will consider it under both standards.

(B) If an applicant identifies an issue as pertaining to the propriety of the discharge (for example, by citing a propriety standard or otherwise claiming that a change in discharge is required as a matter of law), the DRB shall consider the issue solely as a matter of propriety. Except as provided in paragraph (e)(1)(iii)(D) of this section, the DRB is not required to consider such an issue under the equity standards.

(C) If the applicant's issue contends that the DRB is required as a matter of law to follow a prior decision by setting forth an issue of propriety from the prior decision and describing its relationship to the applicant's case, the issue shall be considered under the propriety standards and addressed under paragraph (e)(2) or (e)(3) of this section.

(D) If the applicant's issue sets forth principles of equity contained in a prior DRB decision, describes the relationship to the applicant's case, and contends that the DRB is required as a matter of law to follow the prior case, the decisional document shall note that the DRB is not bound by its discretionary decisions in prior cases under the standards in § 70.9. However, the principles cited by the applicant, and the description of the relationship of the principles to the applicant's case, shall be considered under the equity standards and addressed under paragraph (e)(5) or (e)(6) of this section.

(E) If the applicant's issue cannot be identified as a matter of propriety or equity, the DRB shall address it as an issue of equity.

(2) Change of discharge: issues of propriety. If a change in the discharge is warranted under the propriety standards in § 70.9 the decisional document shall state that conclusion and list the errors of expressly retroactive changes in policy that provide a basis for the conclusion. The decisional document shall cite the facts in the record that demonstrate the relevance of the error or change in policy to the applicant's case. If the change in discharge does not constitute the full change requested by the applicant, the reasons for not granting the full change shall be addressed under the guidance in paragraph (e)((3) or (e)(6) of this section.

(3) Denial of the full change requested: issues of propriety. (i) If the decision rejects the applicant's position on an issue of propriety, or if it is otherwise decided on the basis of an issue of propriety that the full change in discharge requested by the applicant is not warranted, the decisional document shall note that conclusion.

(ii) The decisional document shall list reasons for its conclusion on each issue of propriety under the following guidance:

(A) If a reason is based in whole or in part upon a regulation, statute, constitutional provision, judicial determination, or other source of law, the DRB shall cite the pertinent source of law and the facts in the record that demonstrate the relevance of the source of law to the particular circumstances in the case.

(B) If a reason is based in whole or in part on a determination as to the occurrence or nonoccurrence of an event or circumstance, including a factor required by applicable Service regulations to be considered for determination of the character of and reason for the applicant's discharge, the DRB shall make a finding of fact for each such event or circumstance.

(1) For each such finding, the decisional document shall list the specific source of the information relied upon. This may include the presumption of regularity in appropriate cases. If the information is listed in the service record section of the decisional document, a citation is not required.

(2) If a finding of fact is made after consideration of contradictory evidence in the record (including information cited by the applicant or otherwise identified by members of the DRB), the decisional document shall set forth the conflicting evidence and explain why the information relied upon was more persuasive than the information that was rejected. If the presumption of regularity is cited as the basis for rejecting such information, the decisional document shall set forth the basis for relying on the presumption of regularity and explain why the contradictory evidence was insufficient to overcome the presumption. In an appropriate case, the explanation as to why the contradictory evidence was insufficient to overcome the presumption of regularity may consist of a statement that the applicant failed to provide sufficient corroborating evidence, or that the DRB did not find the applicant's testimony to be sufficiently credible to overcome the presumption.

(C) If the DRB disagrees with the position of the applicant on an issue of propriety, the following guidance applies in addition to the guidance in paragraphs (e)(3)(ii) (A) and (B) of this section:

(1) The DRB may reject the applicant's position by explaining why it disagrees with the principles set forth in the applicant's issue (including principles derived from cases cited by the applicant in accordance with paragraph (e)(4)(iv) of this section).

(2) The DRB may reject the applicant's position by explaining why the principles set forth in the applicant's issue (including principles derived from cases cited by the applicant in accordance with paragraph (a)(4)(iv) of this section) are not relevant to the applicant's case.

(3) The DRB may reject an applicant's position by stating that the applicant's issue of propriety is not a matter upon which the DRB grants a change in discharge, and by providing an explanation for this position. When the applicant indicates that the issue is to be considered in conjunction with one or more other specified issues, the explanation will address all such specified issues.

(4) The DRB may reject the applicant's position on the grounds that other specified factors in the case preclude granting relief, regardless of whether the DRB agreed with the applicant's position.

(5) If the applicant takes the position that the discharge must be changed because of an alleged error in a record associated with the discharge, and the record has not been corrected by the organization with primary responsibility for corrective action, the DRB may respond that it will presume the validity of the record in the absence of such corrective action. If the organization empowered to correct the record is within the Department of Defense, the DRB should provide the applicant with a brief description of the procedures for requesting correction of the record. If the DRB on its own motion cites this issue as a decisional issue on the basis of equity, it shall address the issue under paragraph (d)(5) or (d)(6) of this section.

(6) When an applicant's issue contains a general allegation that a certain course of action violated his or her constitutional rights, the DRB may respond in appropriate cases by noting that the action was consistent with statutory or regulatory authority, and by citing the presumption of constitutionality that attaches to statutes and regulations. If, on the other hand, the applicant makes a specific challenge to the constitutionality of the action by challenging the application of a statute or regulation in a particular set of circumstances, it is not sufficient to respond solely by citing the presumption of constitutionality of the statute or regulation when the applicant is not challenging the constitutionality of the statute or regulation. Instead, the response must address the specific circumstances of the case.

(4) Denial of the full change in discharge requested when propriety is not at issue. If the applicant has not submitted an issue of propriety and the DRB has not otherwise relied upon an issue of propriety to change the discharge, the decisional document shall contain a statement to that effect. The DRB is not required to provide any further discussion as to the propriety of the discharge.

(5) Change of discharge: issues of equity. If the DRB concludes that a change in the discharge is warranted under the equity standards in § 70.9 the decisional document shall list each issue of equity upon which this conclusion is based. The DRB shall cite the facts in the record that demonstrate the relevance of the issue to the applicant's case. If the change in discharge does not constitute the full change requested by the applicant, the reasons for not giving the full change requested shall be discussed under the guidance in paragraph (e)(6) of this section.

(6) Denial of the full change in discharge requested: issues of equity. (i) If the DRB rejects the applicant's position on an issue of equity, or if the decision otherwise provides less than the full change in discharge requested by the applicant, the decisional document shall note that conclusion.

(ii) The DRB shall list reasons for its conclusion on each issue of equity under the following guidance:

(A) If a reason is based in whole or in part upon a regulation, statute, constitutional provision, judicial determination, or other source of law, the DRB shall cite the pertinent source of law and the facts in the record that demonstrate the relevance of the source of law to the exercise of discretion on the issue of equity in the applicant's case.

(B) If a reason is based in whole or in part on a determination as to the occurrence or nonoccurrence of an event or circumstance, including a factor required by applicable Service regulations to be considered for determination of the character of and reason for the applicant's discharge, the DRB shall make a finding of fact for each such event or circumstance.

(1) For each such finding, the decisional document shall list the specific source of the information relied upon. This may include the presumption of regularity in appropriate cases. If the information is listed in the service record section of the decisional document, a citation is not required.

(2) If a finding of fact is made after consideration of contradictory evidence in the record (including information cited by the applicant or otherwise identified by members of the DRB), the decisional document shall set forth the conflicting evidence and explain why the information relied upon was more persuasive than the information that was rejected. If the presumption of regularity is cited as the basis for rejecting such information, the decisional document shall set forth the basis for relying on the presumption of regularity and explain why the contradictory evidence was insufficient to overcome the presumption. In an appropriate case, the explanation as to why the contradictory evidence was insufficient to overcome the presumption of regularity may consist of a statement that the applicant failed to provide sufficient corroborating evidence, or that the DRB did not find the applicant's testimony to be sufficiently credible to overcome the presumption.

(C) If the DRB disagrees with the position of the applicant on an issue of equity, the following guidance applies in addition to the guidance in paragraphs (e)(6)(ii) (A) and (B) of this section:

(1) The DRB may reject the applicant's position by explaining why it disagrees with the principles set forth in the applicant's issue (including principles derived from cases cited by the applicant in accordance with paragraph (a)(4)(iv) of this section).

(2) The DRB may reject the applicant's position by explaining why the principles set forth in the applicant's issue (including principles derived from cases cited by the applicant) are not relevant to the applicant's case.

(3) The DRB may reject an applicant's position by explaining why the applicant's issue is not a matter upon which the DRB grants a change in discharge as a matter of equity. When the applicant indicates that the issue is to be considered in conjunction with other specified issues, the explanation will address all such specified issues.

(4) The DRB may reject the applicant's position on the grounds that other specified factors in the case preclude granting relief, regardless of whether the DRB agreed with the applicant's position.

(5) If the applicant takes the position that the discharge should be changed as a matter of equity because of an alleged error in a record associated with the discharge, and the record has not been corrected by the organization with primary responsibility for corrective action, the DRB may respond that it will presume the validity of the record in the absence of such corrective action. However, the DRB will consider whether it should exercise its equitable powers to change the discharge on the basis of the alleged error. If it declines to do so, it shall explain why the applicant's position did not provide a sufficient basis for the change in the discharge requested by the applicant.

(D) When the DRB concludes that aggravating factors outweigh mitigating factors, the DRB must set forth reasons such as the seriousness of the offense, specific circumstances surrounding the offense, number of offenses, lack of mitigating circumstances, or similar factors. The DRB is not required, however, to explain why it relied on any such factors unless the applicability or weight of such a factor is expressly raised as an issue by the applicant.

(E) If the applicant has not submitted any issues and the DRB has not otherwise relied upon an issue of equity for a change in discharge, the decisional document shall contain a statement to that effect, and shall note that the major factors upon which the discharge was based are set forth in the service record portion of the decisional document.

(f) The recommendation of the DRB President—(1) General. The president of the DRB may forward cases for consideration by the Secretarial Reviewing Authority (SRA) under rules established by the Secretary concerned. There is no requirement that the President submit a recommendation when a case is forwarded to the SRA. If the president makes a recommendation with respect to the character of or reason for discharge, however, the recommendation shall be prepared under the guidance in paragraph (f)(2) of this section.

(2) Format for recommendation. If a recommendation is provided, it shall contain the president's views whether there should be a change in the character of or reason for discharge (or both). If the president recommends such a change, the particular change to be made shall be specified. The recommendation shall set forth the president's position on decisional issues and issues submitted by the applicant under the following guidance:

(i) Adoption of the DRB's decisional document. The recommendation may state that the president has adopted the decisional document prepared by the majority. The president shall ensure that the decisional document meets the requirements of this section.

(ii) Adoption of the specific statements from the majority. If the President adopts the views of the majority only in part, the recommendation shall cite the specific matter adopted from the majority. If the president modifies a statement submitted by the majority, the recommendation shall set forth the modification.

(iii) Response to issues not included in matter adopted from the majority. The recommendation shall set forth the following if not adopted in whole or in part from the majority:

(A) The issues on which the president's recommendation is based. Each such decisional issue shall be addressed by the president under paragraph (e) of this section,

(B) The president's response to items submitted as issues by the applicant under paragraph (d) of this section.

(C) Reasons for rejecting the conclusions of the majority with respect to decisional issues which, if resolved in the applicant's favor, would have resulted in greater relief for the applicant than that afforded by the president's recommendation. Suh issues shall be addressed under the principles in paragraph (e) of this section.

(g) Secretarial reviewing authority (SRA)—(1) Review by the SRA. The Secretarial Reviewing Authority (SRA) is the Secretary concerned or the official to whom Secretary's discharge review authority has been delegated.

(i) The SRA may review the following types of cases before issuance of the final notification of a decision:

(A) Any specific case in which the SRA has an interest.

(B) Any specific case that the president of the DRB believes is of significant interest to the SRA.

(ii) Cases reviewed by the SRA shall be considered under the standards set forth in § 70.9.

(2) Processing the decisional document. (i) The decisional document shall be transmitted by the DRB president under paragraph (e) of this section.

(ii) The following guidance applies to cases that have been forwarded to the SRA except for cases reviewed on the DRB's own motion without the participation of the applicant or the applicant's counsel:

(A) The applicant and counsel or representative, if any, shall be provided with a copy of the proposed decisional document, including the DRB president's recommendation to the SRA, if any. Classified information shall be summarized.

(B) The applicant shall be provided with a reasonable period of time, but not less than 25 days, to submit to the SRA a rebuttal. An issue in rebuttal consists of a clear and specific statement by the applicant in support of or in opposition to the statements of the DRB or DRB president on decisional issues and other clear and specific issues that were submitted by the applicant in accordance with paragraph (a)(4)(i) of this section. The rebuttal shall be based solely on matters in the record before when the DRB closed the case for deliberation or in the president's recommendation.

(3) Review of the decisional document. If corrections in the decisional document are required, the decisional document shall be returned to the DRB for corrective action. The corrected decisional document shall be sent to the applicant (and counsel, if any), but a further opportunity for rebuttal is not required unless the correction produces a different result or includes a substantial change in the discussion by the DRB (or DRB president) of the issues raised by the majority or the applicant.

(4) The Addendum of the SRA. The decision of the SRA shall be in writing and shall be appended as an addendum to the decisional document under the guidance in this subsection.

(i) The SRA's decision. The addendum shall set forth the SRA's decision whether there will be a change in the character of or reason for discharge (or both); if the SRA concludes that a change is warranted, the particular change to be made shall be specified. If the SRA adopts the decision recommended by the DRB or the DRB president, the decisional document shall contain a reference to the matter adopted.

(ii) Discussion of issues. In support of the SRA's decision, the addendum shall set forth the SRA's position on decisional issues, items submitted as issues by an applicant in accordance with paragraph (a)(4)(i) of this section, and issues raised by the DRB and the DRB president in accordance with the following guidance:

(A) Adoption of the DRB president's recommendation. The addendum may state that the SRA has adopted the DRB president's recommendation.

(B) Adoption of the DRB's proposed decisional document. The addendum may state that the SRA has adopted the proposed decisional document prepared by the DRB.

(C) Adoption of specific statements from the majority or the DRB president. If the SRA adopts the views of the DRB or the DRB president only in part, the addendum shall cite the specific statements adopted. If the SRA modifies a statement submitted by the DRB or the DRB president, the addendum shall set forth the modification.

(D) Response to issues not included in matter adopted from the DRB or the DRB president. The addendum shall set forth the following if not adopted in whole or in part from the DRB or the DRB president:

(1) A list of the issues on which the SRA's decision is based. Each such decisional issue shall be addressed by the SRA under paragraph (e) of this section. This includes reasons for rejecting the conclusion of the DRB or the DRB president with respect to decisional issues which, if resolved in the applicant's favor, would have resulted in change to the discharge more favorable to the applicant than that afforded by the SRA's decision. Such issues shall be addressed under the principles in paragraph (e) of this section.

(2) The SRA's response to items submitted as issues by the applicant under paragraph (d) of this section.

(iii) Response to the rebuttal. (A) If the SRA grants the full change in discharge requested by the applicant (or a more favorable change), that fact shall be noted, the decisional issues shall be addressed under paragraph (e) of this section, and no further response to the rebuttal is required.

(B) If the SRA does not grant the full change in discharge requested by the applicant (or a more favorable change), the addendum shall list each issue in rebuttal submitted by an applicant in accordance with this section, and shall set forth the response of the SRA under the following guidance:

(1) If the SRA rejects an issue in rebuttal, the SRA may respond in accordance with the principles in paragraph (e) of this section.

(2) If the matter adopted by the SRA provides a basis for the SRA's rejection of the rebuttal material, the SRA may note that fact and cite the specific matter adopted that responds to the issue in rebuttal.

(3) If the matter submitted by the applicant does not meet the requirements for rebuttal material in paragraph (b)(2)(ii)(B) of this section.

(iv) Index entries. Appropriate index entries shall be prepared for the SRA's actions for matters that are not adopted from the DRB's proposed decisional document.

(h) The decisional document. A decisional document shall be prepared for each review. At a minimum, this document shall contain:

(1) The circumstances and character of the applicant's service as extracted from available service records, including health records, and information provided by other Government authorities or the applicant, such as, but not limited to:

(i) Information concerning the discharge at issue in the review, including:

(A) Date (YYMMDD) of discharge.

(B) Character of discharge.

(C) Reason for discharge.

(D) The specific regulatory authority under which the discharge was issued.

(ii) Date (YYMMDD) of enlistment.

(iii) Period of enlistment.

(iv) Age at enlistment.

(v) Length of service.

(vi) Periods of unauthorized absence.

(vii) Conduct and efficiency ratings (numerical or narrative).

(viii) Highest rank received.

(ix) Awards and decorations.

(x) Educational level.

(xi) Aptitude test scores.

(xii) Incidents of punishment pursuant to Article 15, Uniform Code of Military Justice (including nature and date (YYMMDD) of offense or punishment).

(xiii) Convictions by court-martial.

(xiv) Prior military service and type of discharge received.

(2) A list of the type of documents submitted by or on behalf of the applicant (including a written brief, letters of recommendation, affidavits concerning the circumstances of the discharge, or other documentary evidence), if any.

(3) A statement whether the applicant testified, and a list of the type of witnesses, if any, who testified on behalf of the applicant.

(4) A notation whether the application pertained to the character of discharge, the reason for discharge, or both.

(5) The DRB's conclusions on the following:

(i) Whether the character of or reason for discharge should be changed.

(ii) The specific changes to be made, if any.

(6) A list of the items submitted as issues on DD Form 293 or expressly incorporated therein and such other items submitted as issues by the applicant that are identified as inadvertently omitted under paragraph (a)(4)(i)(D) of this section. If the issues are listed verbatim on DD Form 293, a copy of the relevant portion of the Form may be attached. Issues that have been withdrawn or modified with the consent of the applicant need not be listed.

(7) The response to the items submitted as issues by the applicant under the guidance in paragraph (d) of this section.

(8) A list of decisional issues and a discussion of such issues under the guidance in paragraph (e) of this section.

(9) Minority views, if any, when authorized under rules of the Military Department concerned.

(10) The recommendation of the DRB president when required by paragraph (f) of this section.

(11) The addendum of the SRA when required by paragraph (g) of this section.

(12) Advisory opinions, including those containing factual information, when such opinions have been relied upon for final decision or have been accepted as a basis for rejecting any of the applicant's issues. Such advisory opinions or relevant portions thereof that are not fully set forth in the discussion of decisional issues or otherwise in response to items submitted as issues by the application shall be incorporated by reference. A copy of opinions incorporated by reference shall be appended to the decision and included in the record of proceedings.

(13) A record of the voting, including:

(i) The number of votes for the DRB's decision and the number of votes in the minority, if any.

(ii) The DRB member's names (last name, first name, M.I.) and votes. The copy provided to the applicant may substitute a statement that the names and votes will be made available to the applicant at the applicant's request.

(14) Index entries for each decisional issue under appropriate categories listed in the index of decisions.

(15) An authentication of the document by an appropriate official.

(i) Issuance of decisions following discharge review. The applicant and counsel or representative, if any, shall be provided with a copy of the decisional document and of any further action in review. The applicant (and counsel, if any) shall be notified of the availability of the complaint process under § 70.10. Final notification of decisions shall be issued to the applicant with a copy to the counsel or representative, if any, and to the Military Service concerned.

(1) Notification to applicants, with copies to counsel or representatives, shall normally be made through the U.S. Postal Service. Such notification shall consist of a notification of decision, together with a copy of the decisional document.

(2) Notification to the Military Services shall be for the purpose of appropriate action and inclusion of review matter in personnel records. Such notification shall bear appropriate certification of completeness and accuracy.

(3) Actions on review by superior authority, when occurring, shall be provided to the applicant and counsel or representative in the same manner as the notification of the review decision.

(j) Record of DRB proceedings. (1) When the proceedings in any review have been concluded, a record thereof will be prepared. Records may include written records, electromagnetic records, videotape recordings, or a combination thereof.

(2) At a minimum, the record will include the following:

(i) The application for review;

(ii) A record of the testimony in verbatim, summarized, or recorded form at the option of the DRB concerned;

(iii) Documentary evidence or copies thereof, considered by the DRB other than the Military Service record;

(iv) Briefs and arguments submitted by or on behalf of the applicant;

(v) Advisory opinions considered by the DRB, if any;

(vi) The findings, conclusions, and reasons developed by the DRB;

(vii) Notification of the DRB's decision to the cognizant custodian of the applicant's records, or reference to the notification document;

(viii) Minority reports, if any;

(ix) A copy of the decisional document.

(k) Final disposition of the Record of Proceedings. The original record of proceedings and all appendices thereto shall in all cases be incorporated in the Military Service record of the applicant and the Military Service record shall be returned to the custody of the appropriate records holding facility. If a portion of the original record of the proceedings cannot be stored with the Military Service record, the Military Service record shall contain a notation as to the place where the record is stored. Other copies shall be filed and disposed of in accordance with appropriate Military Service regulations.

(l) Availability of Discharge Review Board documents for inspection and copying. (1) A copy of the decisional document prepared in accordance with paragraph (d) of this section shall be made available for public inspection and copying promptly after a notice of final decision is sent to the applicant.

(2) To prevent a clearly unwarranted invasion of personal privacy, identifying details of the applicant and other persons will be deleted from documents made available for public inspection and copying.

(i) Names, addresses, social security numbers, and Military Service numbers must be deleted. Written justification shall be made for all other deletions and shall be available for public inspection.

(ii) Each DRB shall ensure that there is a means for relating a decisional document number to the name of the applicant to permit retrieval of the applicant's records when required in processing a complaint under § 70.10.

(3) Any other privileged or classified material contained in or appended to any documents required by this part to be furnished the applicant and counsel or representative or made available for public inspection and copying may be deleted therefrom only if a written statement of the basis for the deletions is provided the applicant and counsel or representative and made available for public inspection. It is not intended that the statement be so detailed as to reveal the nature of the withheld material.

(4) DRB documents made available for public inspection and copying shall be located in the Armed Forces Discharge Review/Correction Board Reading Room. The documents shall be indexed in a usable and concise form so as to enable the public, and those who represent applicants before the DRBs, to isolate from all these decisions that are indexed, those cases that may be similar to an applicant's case and that indicate the circumstances under or reasons for (or both) which the DRB or the Secretary concerned granted or denied relief.

(i) The reading file index shall include, in addition to any other items determined by the DRB, the case number, the date, character of, reason and authority for the discharge. It shall also include the decisions of the DRB and reviewing authority, if any, and the issues addressed in the statement of findings, conclusions, and reasons.

(ii) The index shall be maintained at selected permanent locations throughout the United States. This ensures reasonable availability to applicants at least 30 days before a traveling panel review. A list of these locations shall be published in the Federal Register by the Department of the Army. The index shall also be made available at sites selected for traveling panels or hearing examinations for such periods as the DRB or a hearing examiner is present and in operation. An applicant who has requested a traveling panel review or a hearing examination shall be advised in the notice of such review of the permanent index locations.

(iii) The Armed Forces Discharge Review/Correction Board Reading Room shall publish indexes quarterly for all DRBs. All DRBs shall be responsible for timely submission to the Reading Room of individual case information required for update of the indexes. In addition, all DRBs shall be responsible for submission of new index categories based upon published changes in policy, procedures, or standards. These indexes shall be available for public inspection or purchase (or both) at the Reading Room. When the DRB has accepted an application, information concerning the availability of the index shall be provided in the DRB's response to the application.

(iv) Copies of decisional documents will be provided to individuals or organizations outside the NCR in response to written requests for such documents. Although the Reading Room shall try to make timely responses to such requests, certain factors such as the length of a request, the volume of other pending requests, and the impact of other responsibilities of the staff assigned to such duties may cause some delays. A fee may be charged for such documents under appropriate DoD and Department of the Army directives and regulations. The manual that accompanies the index of decisions shall notify the public that if an applicant indicates that a review is scheduled for a specific date, an effort will be made to provide requested decisional documents before that date. The individual or organization will be advised if that cannot be accomplished.

(v) Correspondence relating to matters under the cognizance of the Reading Room (including requests for purchase of indexes) shall be addressed to: DA Military Review Boards Agency, Attention: SFBA (Reading Room), Room 1E520, The Pentagon, Washington, DC 20310.

(m) Privacy Act information. Information protected under the Privacy Act is involved in the discharge review functions. The provisions of part 286a of this title shall be observed throughout the processing of a request for review of discharge or dismissal.

(n) Information requirement. Each Military Department shall provide the Deputy Assistant Secretary of Defense (Military Personnel and Force Management) DASD (MP&FM), Office of the ASD (MRA&L), with a semiannual report of discharge review actions in accordance with § 70.11.

(a) Objective of review. The objective of a discharge review is to examine the propriety and equity of the applicant's discharge and to effect changes, if necessary. The standards of review and the underlying factors that aid in determining whether the standards are met shall be historically consistent with criteria for determining honorable service. No factors shall be established that require automatic change or denial of a change in discharge. Neither a DRB nor the Secretary of the Military Department concerned shall be bound by any methodology of weighting of the factors in reaching a determination. In each case, the DRB or the Secretary of the Military Department concerned shall give full, fair, and impartial considerations to all applicable factors before reaching a decision. An applicant may not rceive a less favorable discharge than that issued at the time of separation. This does not preclude correction of clerical errors.

(b) Propriety. (1) A discharge shall be deemed proper unless, in the course of discharge review, it is determined that:

(i) There exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made); or

(ii) A change in policy by the Military Service of which the applicant was a member, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.

(2) When a record associated with the discharge at the time of issuance involves a matter in which the primary responsibility for corrective action rests with another organization (for example, another Board, agency, or court), the DRB will recognize an error only to the extent that the error has been corrected by the organization with primary responsibility for correcting the record.

(3) The primary function of the DRB is to exercise its discretion on issues of equity by reviewing the individual merits of each application on a case-by-case basis. Prior decisions in which the DRB exercised its discretion to change a discharge based on issues of equity (including the factors cited in such decisions or the weight given to factors in such decisions) do not bind the DRB in its review of subsequent cases because no two cases present the same issues of equity.

(4) The following applies to applicants who received less than fully Honorable administrative discharges because of their civilian misconduct while in an inactive reserve component and who were discharged or had their discharge reviewed on or after April 20, 1971: the DRB shall either recharacterize the discharge to Honorable without any additional proceedings or additional proceedings shall be conducted in accordance with the Court's Order of December 3, 1981, in Wood v. Secretary of Defense to determine whether proper grounds exist for the issuance of a less than Honorable discharge, taking into account that;

(i) An Other than Honorable (formerly undesirable) Discharge for an inactive reservist can only be based upon civilian misconduct found to have affected directly the performance of military duties;

(ii) A General Discharge for an inactive reservist can only be based upon civilian misconduct found to have had an adverse impact on the overall effectiveness of the military, including military morale and efficiency.

(c) Equity. A discharge shall be deemed to be equitable unless:

(1) In the course of a discharge review, it is determined that the policies and procedures under which the applicant was discharged differ in material respects from policies and procedures currently applicable on a Service-wide basis to discharges of the type under consideration provided that:

(i) Current policies or procedures represent a substantial enhancement of the rights afforded a respondent in such proceedings; and

(ii) There is substantial doubt that the applicant would have received the same discharge if relevant current policies and procedures had been available to the applicant at the time of the discharge proceedings under consideration.

(2) At the time of issuance, the discharge was inconsistent with standards of discipline in the Military Service of which the applicant was a member.

(3) In the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the DRB viewed in conjunction with the factors listed in this section and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance. Areas of consideration include, but are not limited to:

(i) Quality of service, as evidenced by factors such as:

(A) Service history, including date of enlistment, period of enlistment, highest rank achieved, conduct or efficiency ratings (numerical or narrative);

(B) Awards and decorations;

(C) Letters of commendation or reprimand;

(D) Combat service;

(E) Wounds received in action;

(F) Records of promotions and demotions;

(G) Level of responsibility at which the applicant served;

(H) Other acts of merit that may not have resulted in a formal recognition through an award or commendation;

(I) Length of service during the service period which is the subject of the discharge review;

(J) Prior military service and type of discharge received or outstanding postservice conduct to the extent that such matters provide a basis for a more thorough understanding of the performance of the applicant during the period of service which is the subject of the discharge review;

(K) Convictions by court-martial;

(L) Records of nonjudicial punishment;

(M) Convictions by civil authorities while a member of the Service, reflected in the discharge proceedings or otherwise noted in military service records;

(N) Records of periods of unauthorized absence;

(O) Records relating to a discharge instead of court-martial.

(ii) Capability to serve, as evidenced by factors such as:

(A) Total capabilities. This includes an evaluation of matters, such as age, educational level, and aptitude scores. Consideration may also be given whether the individual met normal military standards of acceptability for military service and similar indicators of an individual's ability to serve satisfactorily, as well as ability to adjust to military service.

(B) Family and Personal Problems. This includes matters in extenuation or mitigation of the reason for discharge that may have affected the applicant's ability to serve satisfactorily.

(C) Arbitrary or capricious action. This includes actions by individuals in authority that constitute a clear abuse of such authority and that, although not amounting to prejudicial error, may have contributed to the decision to discharge or to the characterization of service.

(D) Discrimination. This includes unauthorized acts as documented by records or other evidence.

(a) General. (1) The procedures in this section—are established for the sole purpose of ensuring that decisional documents and index entries issued by the DRBs of the Military Departments comply with the decisional document and index entry principles of this part.

(2) This section may be modified or supplemented by the DASD(MP&FM).

(3) The following persons may submit complaints:

(i) A former member of the Armed Forces (or the former member's counsel) with respect to the decisional document issued in the former member's own case; and

(ii) A former member of the Armed Forces (or the former member's counsel) who states that correction of the decisional document will assist the former member in preparing for an administrative or judicial proceeding in which the former member's own discharge will be at issue.

(4) The Department of Defense is committed to processing of complaints within the priorities and processing goals set forth in paragraph (d)(1)(iii) of this section. This commitment, however, is conditioned upon reasonable use of the complaint process under the following considerations. The DRBs were established for the benefit of former members of the Armed Forces. The complaint process can aid such persons most effectively if it is used by former members of the Armed Forces when necessary to obtain correction of their own decisional documents or to prepare for discharge reviews. If a substantial number of complaints submitted by others interferes with the ability of the DRBs to process applications for discharge review in a timely fashion, the Department of Defense will adjust the processing goals to ensure that the system operates to the primary advantage of applicants.

(5) The DASD(MP&FM) is the final authority with respect to action on such correspondence.

(b) The Joint Service Review Activity (JSRA). A three member JSRA consisting of one judge advocate from each Military Department shall advise the DASD(MP&FM). The operations of the JSRA shall be coordinated by a full-time administrative director, who shall serve as recorder during meetings of the JSRA. The members and the administrative director shall serve at the direction of the DASD(MP&FM).

(c) Classification and control of correspondence—(1) Address of the JSRA. Correspondence with the OSD concerning decisional documents or index entries issued by the DRBs shall be addressed as follows: Joint Service Review Activity, OASD(MRA&L) (MP&FM), Washington, DC 20301.

(2) Docketing. All such correspondence shall be controlled by the administrative director through the use of a uniform docketing procedure.

(3) Classification. Correspondence shall be reviewed by the administrative director and categorized either as a complaint or an inquiry in accordance with the following:

(i) Complaints. A complaint is any correspondence in which it is alleged that a decisional document issued by a DRB or SRA contains a specifically identified violation of the Stipulation of Dismissal, Settlement Agreement, or related Orders in the Urban Law case or the decisional document or index entry principles of this Directive. A complainant who alleges error with respect to a decisional document issued to another person is encouraged to set forth specifically the grounds for determining that a reasonable person familiar with the discharge review process cannot understand the basis for the decision. See paragraph (d)(1)(i)(B) of this section.

(ii) Inquiries. An inquiry is any correspondence other than a complaint.

(d) Review of complaints. (1) Guidance. The following guidance applies to review of complaints:

(i) Standards. Complaints shall be considered under the following standards:

(A) The applicant's case. A complaint by an applicant with respect to the decisional document issued in the applicant's own discharge review shall be considered under the Stipulation of Dismissal in the Urban Law case and other decisional document requirements applicable at the time the document was issued, including those contained in the Settlement Agreement and related Orders, subject to any limitations set forth therein with respect to dates of applicability. If the authority empowered to take corrective action has a reasonable doubt whether a decisional document meets applicable requirements of the Urban Law case or other applicable rules, the complaint shall be resolved in the applicant's favor.

(B) Other cases. With respect to all other complaints, the standard shall be whether a reasonable person familiar with the discharge review process can understand the basis for the decision, including the disposition of issues raised by the applicant. This standard is designed to ensure that the complaint process is not burdened with the need to correct minor errors in the preparation of decisional documents.

(ii) Use of DD Form 293. With respect to any decisional document issued on or after November 27, 1982, a complaint alleging failure of the DRB to address adequately matter not submitted on DD Form 293 or expressly incorporated therein will be resolved in the complainant's favor only if the failure to address the issue was arbitrary, capricious, or an abuse of discretion.

(iii) Scope of review. When a complaint concerns a specific issue in the applicant's own discharge review, the complaint review process shall involve a review of all the evidence that was before the DRB or SRA, including the testimony and written submissions of the applicant, to determine whether the issue was submitted, and if so, whether it was addressed adequately with respect to the Stipulation of Dismissal, Settlement Agreement, or related Orders in the Urban Law case and other applicable provisions of this Directive. With respect to all other complaints about specific issues, the complaint review process may be based solely on the decisional document, except when the complainant demonstrates that facts present in the review in question raise a reasonable likelihood of a violation of applicable provisions of the Stipulation of Dismissal and a reasonable person, familiar with the discharge review process, could resolve the complaint only after a review of the evidence that was before the DRB.

(iv) Allegations pertaining to an applicant's submission. The following additional requirements apply to complaints about modification of an applicant's issue or the failure to list or address an applicant's issue:

(A) When the complaint is submitted by the applicant, and the record of the hearing is ambiguous on the question whether there was a meeting of minds between the applicant and the DRB as to modification or omission of the issue, the ambiguity will be resolved in favor of the applicant.

(B) When the complaint is submitted by a person other than the applicant, it must set forth facts (other than the mere omission or modification of an issue) demonstrating a reasonable likelihood that the issue was omitted or modified without the applicant's consent.

(C) When the complaint is rejected on the basis of the presumption of regularity, the response to the complaint must be set forth the reasons why the evidence submitted by the complainant was not sufficient to overcome the presumption.

(D) With respect to decisional documents issued on or after the effective date of the amendments to § 70.8, any change in wording of an applicant's issue which is effected in violation of the principles set forth in § 70.8(a)(5)(iii) constitutes an error requiring corrective action. With respect to a decisional document issued before that date, corrective action will be taken only when there has been a complaint by the applicant or counsel with respect to the applicant's own decisional document and it is determined that the wording was changed or the issue was omitted without the applicant's consent.

(E) If there are references in the decisional document to matters not raised by the applicant and not otherwise relied upon in the decision, there is no requirement under the Urban Law case that such matters be accompanied by a statement of findings, conclusions, or reasons. For example, when the DRB discusses an aspect of the service record not raised as an issue by the applicant, and the issue is not a basis for the DRB's decision, the DRB is not required to discuss the reasons for declining to list that aspect of the service record as an issue.

(v) Guidance as to other types of complaints. The following guidance governs other specified types of complaints:

(A) The Stipulation of Dismissal requires only that those facts that are essential to the decision be listed in the decisional document. The requirement for listing specified facts from the military record was not established until March 29, 1978, in 32 CFR part 70 Decisional documents issued prior to that date are sufficient if they meet the requirements of the Stipulation.

(B) When an applicant submits a brief that contains material in support of a proposed conclusion on an issue, the DRB is not required to address each aspect of the supporting material in the brief. However, the decisional document should permit the applicant to understand the DRB's position on the issue and provide reviewing authorities with an explanation that is sufficient to permit review of the DRB's decision. When an applicant submits specific issues and later makes a statement before the DRB that contains matter in support of that issue, it is not necessary to list such supporting matter as a separate issue.

(C) For all decisional documents issued before November 27, 1982, failure to respond to an issue raised by an applicant constitutes error unless it reasonably may be inferred from the record that the DRB response relied on one of the exceptions listed in § 70.8(d)(3)(ii); (e)(3)(ii)(C) (3) through (4) and (e)(6)(ii)(C) (3) through (4). If the decisional document supports a basis for not addressing an issue raised by the applicant (for example, if it is apparent that resolving the issue in the applicant's favor would not warrant an upgrade), there is no requirement in the Stipulation of Dismissal that the decisional document explain why the DRB did not address the issue. With respect to decisional documents issued on or after November 27, 1982, a response shall be prepared in accordance with the decisional document principles set forth in § 70.8.

(D) When a case is reviewed upon request of an applicant, and the DRB upgrades the discharge to “General,” the DRB must provide reasons why it did not upgrade to “Honorable” unless the applicant expressly requests lesser relief. This requirement applies to all requests for corrective action submitted by an applicant with respect to his or her decisional document. In all other cases, this requirement applies to decisional documents issued on or after November 9, 1978. When the DRB upgrades to General, its explanation for not upgrading to Honorable may consist of reference to adverse matter from the applicant's military record. When a discharge is upgraded to General in a review on the DRB's own motion, there is no requirement to explain why the discharge was not upgraded to Honorable.

(E) There is no requirement under the Stipulation of Dismissal to provide reasons for uncontested findings. The foregoing applies to decisional documents issued before November 27, 1982. With respect to decisional documents issued on or after that date, the following guidance applies with respect to an uncontested issue of fact that forms the basis for a grant or denial of a change in discharge: the decisional document shall list the specific source of information relied upon in reaching the conclusion, except when the information is listed in the portion of the decisional document that summarizes the service record.

(F) The requirements of § 70.8(e)(3) (ii)(B)(2) and (e)(6) (ii)(B)(2) with respect to explaining use of the presumption of regularity apply only to decisional documents issued on or after November 27, 1982. When a complaint concerning a decisional document issued before that date addresses the adequacy of the DRB's use of the presumption of regularity, or words having a similar import, corrective action will be required only if a reasonable person familiar with the discharge review process can not understand the basis for relying on the presumption.

(G) When the DRB balances mitigrating factors against aggravating factors as the reason for a conclusion, the Stipulation of Dismissal does not require the statement of reasons to set forth the specific factors that were balanced if such factors are otherwise apparent on the fact of the decisional document. The foregoing applies to decisional documents prepared before November 27, 1982. With respect to decisional documents prepared after that date, the statements addressing decisional issues in such a case will list or refer to the factors supporting the conclusion in accordance with § 70.8(e)(6)(ii).

(vi) Documents that were the subject of a prior complaint. The following applies to a complaint concerning a decisional document that has been the subject of prior complaints:

(A) If the complaint concerns a decisional document that was the subject of a prior complaint in which action was completed, the complainant will be informed of the substance and disposition of the prior complaint, and will be further informed that no additional action will be taken unless the complainant within 30 days demonstrates that the prior disposition did not produce a decisional document that comports with the requirements of paragraph (d)(1)(i)(A) of this section.

(B) If the complaint concerns a decisional document that is the subject of a pending complaint, the complainant will be informed that he or she will be provided with the results of the pending complaint.

(C) These limitations do not apply to the initial complaint submitted on or after the effective date of the amendments to this section by an applicant with respect to his or her own decisional document.

(2) Duties of the administrative director. The administrative director shall take the following actions:

(i) Acknowledge receipt of the complaint;

(ii) Assign a docket number and note the date of receipt; and

(iii) Forward the complaint to the Military Department concerned, except that the case may be forwarded directly to the DASD (MP&FM) when the administrative director makes an initial determination that corrective action is not required.

(3) Administrative processing. The following guidance applies to administrative processing of complaints:

(i) Complaints normally shall be processed on a first-in/first-out basis, subject to the availability of records, pending discharge review actions, and the following priorities:

(A) The first priority category consists of cases in which (1) there is a pending discharge review and the complainant is the applicant; and (2) the complainant sets forth the relevance of the complaint to the complainant's pending discharge review application.

(B) The second priority category consists of requests for correction of the decisional document in the complainant's own discharge review case.

(C) The third priority category consists of complaints submitted by former members of the Armed Forces (or their counsel) who state that the complaint is submitted to assist the former member's submission of an application for review.

(D) The fourth priority category consists of other complaints in which the complainant demonstrates that correction of the decisional document will substantially enhance the ability of applicants to present a significant issue to the DRBs.

(E) The fifth priority category consists of all other cases.

(ii) Complainants who request consideration in a priority category shall set forth in the complaint the facts that give rise to the claim of placement in the requested category. If the complaint is relevent to a pending discharge review in which the complainant is applicant or counsel, the scheduled date of the review should be specified.

(iii) The administrative director is responsible for monitoring compliance with the following processing goals:

(A) The administrative director normally shall forward correspondence to the Military Department concerned within 3 days after the date of receipt specified in the docket number. Correspondence forwarded directly to the DASD(MP&FM) under paragraph (d)(2)(iii) of this section, normally shall be transmitted within 7 days after the date of receipt.

(B) The Military Department normally shall request the necessary records within 5 working days after the date of receipt from the administrative director. The Military Department normally shall complete action under paragraph (d)(4) of this section within 45 days after receipt of all necessary records. If action by the Military Department is required under paragraph (d)(9) of this section, normally it shall be completed within 45 days after action is taken by the DASD(MP&FM).

(C) The JSRA normally shall complete action under paragraph (d)(7) of this section at the first monthly meeting held during any period commencing 10 days after the administrative director receives the action of the Military Department under paragraph (d)(5) of this section.

(D) The DASD(MP&FM) normally shall complete action under paragraph (d)(8) of this section within 30 days after action is taken by the JSRA under paragraph (d)(7) of this section or by the administrative director under paragraph (d)(2)(iii) of this section.

(E) If action is not completed within the overall processing goals specified in this paragraph, the complainant shall be notified of the reason for the delay by the administrative director and shall be provided with an approximate date for completion of the action.

(iv) If the complaints are submitted in any 30 day period with respect to more than 50 decisional documents, the administrative director shall adjust the processing goals in light of the number of complaints and discharge review applications pending before the DRBs.

(v) At the end of each month, the administrative director shall send each Military Department a list of complaints, if any, in which action has not been completed within 60 days of the docket date. The Military Department shall inform the administrative director of the status of each case.

(4) Review of complaints by the Military Departments. The Military Department shall review the complaint under the following guidance:

(i) Rejection of complaint. If the Military Department determines that all the allegations contained in the complaint are not specific or have no merit, it shall address the allegations using the format at attachment 1 (Review of Complaint).

(ii) Partial agreement. If the Military Department determines that some of the allegations contained in the complaint are not specific or have no merit and that some of the allegations contained in the complaint have merit, it shall address the allegations using the format at attachment 1 and its DRB shall take appropriate corrective action in accordance with paragraph (d)(4)(v) of this section.

(iii) Full agreement. If the Military Department determines that all of the allegations contained in the complaint have merit, its DRB shall take appropriate corrective action in accordance with paragraph (d)(4)(v) of this section.

(iv) Other defects. If, during the course of its review, the Military Department notes any other defects in the decisional document or index entries (under the applicable requirements of the Urban Law case or under this part) the DRB shall take appropriate corrective action under paragraph (d)(4)(v) of this section. This does not establish a requirement for the Military Department to review a complaint for any purpose other than to determine whether the allegations contained in the complaint are specific and have merit; rather, it simply provides a format for the Military Department to address other defects noted during the course of processing the complaint.

(v) Appropriate corrective action. The following procedures govern appropriate corrective action:

(A) If a complaint concerns the decisional document in the complainant's own discharge review case, appropriate corrective action consists of amending the decisional document or providing the complainant with an opportunity for a new discharge review. An amended decisional document will be provided if the applicant requests that form of corrective action.

(B) If a complaint concerns a decisional document involving an initial record review under the Special Discharge Review Program or the Pub. L. 95-126 rereview program, appropriate corrective action consists of (1) amending the decisional document; or (2) notifying the applicant and counsel, if any, of the opportunity to obtain a priority review using the letter providing at attachment 6. When the DRB takes corrective action under this provision by amending a decisional document, it shall notify the applicant and counsel, if any, of the opportunity to request a de novo review under the Special Discharge Review Program or under Pub. L. 95-126 rereview program, as appropriate.

(C) When corrective action is taken with respect to a decisional document in cases prepared under Pub. L. 95-126 the DRB must address issues previously raised by the DRB or the applicant during review of the same case during the SDRP only insofar as required by the following guidance:

(1) When the DRB bases its decision upon issues previously considered during the SDRP, the new decisional document under Pub. L. 95-126 must address those issues;

(2) If, during consideration of the case under Pub. L. 95-126 the applicant presents issues previously considered during the SDRP, the new decisional document must address those issues; and

(3) If a decisional document concerning an initial record review under Pub. L. 95-126 is otherwise defective and corrective action is taken after a request by the applicant for a priority review in response to the letter at attachment 6, the new decisional document shall address all issues previously raised by the applicant during the SDRP.

(D) Except for cases falling under paragraph (d)(4)(v)(B) of this section, if a complaint concerns a decisional document in which the applicant received an Honorable Discharge and the full relief requested, if any, with respect to the reason for discharge, appropriate corrective action consists of amending the decisional document.

(E) In all other cases, appropriate corrective action consists of amending the decisional document or providing the applicant with the opportunity for a new review, except that an amended decisional document will be provided when the complainant expressly requests that form of corrective action.

(vi) Amended decisional documents. One that reflects a determination by a DRB panel (or the SRA) as to what the DRB panel (or SRA) that prepared the defective decisional document would have entered on the decisional document to support its decision in this case.

(A) The action of the amending authority does not necessarily reflect substantive agreement with the decision of the original DRB panel (or SRA) on the merits of the case.

(B) A corrected decisional document created by amending a decisional document in response to a complaint will be based upon the complete record before the DRB (or the SRA) at the time of the original defective statement was issued, including, if available, a transcript, tape recording, videotape or other record of a hearing, if any. The new decisional document will be indexed under categories relevant to the new statements.

(C) When an amended decisional document is required under paragraphs (d)(4)(v)(A) and (d)(4)(v)(D) of this section and the necessary records cannot be located, a notation to that effect will be made on the decisional document, and the applicant and counsel, if any, will be afforded an opportunity for a new review, and the complainant will be informed of the action.

(D) When an amended decisional document is requested under paragraph (d)(4)(v)(C) and the necessary records cannot be located, a notation to that effect will be made on the decisional document, and the complainant will be informed that the situation precludes further action.

(vii) Time limit for requesting a new review. An applicant who is afforded an opportunity to request a new review may do so within 45 days.

(viii) Interim notification. When the Military Department determines that some or all of the allegations contained in the complaint are not specific or have no merit but its DRB takes corrective action under paragraph (d)(4)(ii) or (d)(4)(iv) of this section, the DRB's notification to the applicant and counsel, if any, and to the complainant, if other than the applicant or counsel, should include the following or similar wording: “This is in partial response to (your)/(a) complaint to the Office of the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) dated ____ concerning ____ Discharge Review Board decisional document ____. A final response to (your)/(the) complaint, which has been returned to the Office of the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) for further review, will be provided to you in the near future.”

(ix) Final notification. When the Discharge Review Board takes corrective action under paragraphs (d)(4)(iii) and (d)(9) of this section ____ its notification to the applicant and counsel, if any, and to the complainant, if other than the applicant or counsel, should include the following or similar wording: “This is in response to (your)/(a) complaint to the Office of the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) dated ____ concerning ____ Discharge Review Board decisional document ____.

(5) Transmittal to the administrative director. The Military Department shall return the complaint to the administrative Director with a copy of the decisional document and, when applicable, any of the following documents:

(i) The “Review of Complaint.”

(ii) A copy of the amendment to the decisional document and the accompanying transmittal letter or letters to the applicant and counsel, if any, and to the complainant, if other than the applicant or counsel.

(iii) A copy of the notification to the applicant and counsel, if any, of the opportunity to request a new review, and a copy of the notification to the complainant, if other than the applicant or counsel, that the applicant has been authorized a new review.

(6) Review by the administrative director. The administrative director shall review the complaint and accompanying documents to ensure the following:

(i) If the Military Department determined that any of the allegations contained in the complaint are not specific or have no merit, the JSRA shall review the complaint and accompanying documents. The JSRA shall address the allegations using the format at attachment 2 (Review of and Recommended Action on Complaint) and shall note any other defects in the decisional document or index entries not previously noted by the Military Department. This does not establish a requirement for the JSRA to review such complaints for any purpose other than to address the allegations contained in the complaint; rather, it simply provides a format for the JSRA to address other defects noted in the course of processing the complaint.

(ii) If the Military Department determined that all of the allegations contained in the complaint have merit and its DRB amended the decisional document, the amended decisional document shall be subject to review by the JSRA on a sample basis each quarter using the format at attachment 3 (Review of any Recommendation on Amended Decisional Document).

(iii) If the Military Department determined that all of the allegations contained in the complaint have merit and its DRB notified the applicant and counsel, if any, of the opportunity to request a new review, review of such corrective action is not required.

(7) Review by the JSRA. The JSRA shall meet for the purpose of conducting the reviews required in paragraphs (d)(6)(i), (d)(6)(ii), and (d)(9)(iii)(A) of this section. The Administrative director shall call meetings once a month, if necessary, or more frequently depending upon the number of matters before the JSRA. Matters before the JSRA shall be presented to the members by the recorder. Each member shall have one vote in determining matters before the JSRA, a majority vote of the members determining all matters. Determinations of the JSRA shall be reported to the DASD(MP&FM) as JSRA recommendations using the prescribed format. If a JSRA recommendation is not unanimous, the minority member may prepare a separate recommendation for consideration by the DASD(MP&FM) using the same format. Alternatively, the minority member may indicate “dissent” next to his signature on the JSRA recommendation.

(8) Review by the DASD(MP&FM). The DASD(MP&FM) shall review all recommendations of the JSRA and the administrative director as follows:

(i) The DASD(MP&FM) shall review complaints using the format at Attachment 4 (Review of and Action on Complaint). The DASD(MP&FM) is the final authority in determining whether the allegations contained in a complaint are specific and have merit. If the DASD(MP&FM) determines that no further action by the Military Department is warranted, the complainant and the Military Department shall be so informed. If the DASD(MP&FM) determines that further action by the Military Department is required, the Military Department shall be directed to ensure that appropriate corrective action is taken by its DRB and the complainant shall be provided an appropriate interim response.

(ii) The DASD(MP&FM) shall review amended decisional documents using the format at attachment 5 (Review of and Action on Amended Decisional Document). The DASD(MP&FM) is the final authority in determining whether an amended decisional document complies with applicable requirements of the Urban Law case and, when applicable, this Directive. If the DASD(MP&FM) determines that no further corrective action by the Military Department is warranted, the Military Department shall be so informed. If the DASD(MP&FM) determines that further corrective action by the Military Department is required, the Military Department shall be directed to ensure that appropriate corrective action is taken by its DRB.

(iii) It is noted that any violation of applicable requirements of the Urban Law case is also a violation of this part. However, certain requirements under this part are not requirements under the Urban Law case. If the allegations contained in a complaint are determined to have merit or if an amended decisional document is determined to be defective on the basis of one of these additional requirements under this part the DASD(MP&FM) determination shall reflect this fact.

(9) Further action by the Military Department. (i) With respect to a determination by the DASD (MP&FM) that further action by the Military Department is required, its DRB shall take appropriate corrective action in accordance with paragraph (d)(4) of this section.

(ii) The Military Department shall provide the administrative director with the following documents when relevant to corrective action taken in accordance with paragraph (d)(4) of this section:

(A) A copy of the amendment to the decisional document and the accompanying transmittal letter or letters to the applicant and counsel, if any, and to the complainant, if other than the applicant or counsel.

(B) A copy of the notification to the applicant and counsel, if any, of the opportunity to request a new review, and a copy of the notification to the complainant, if other than the applicant or counsel, that the applicant has been authorized a new review.

(iii) The administrative director shall review the documents relevant to corrective action taken in accordance with paragraph (d)(4) of this section, and ensure the following:

(A) If the DRB amended the decisional document, the amended decisional document shall be subject to review by the JSRA on a sample basis each quarter using the format at attachment 3 (Review of and Recommended Action on Amended Decisional Document).

(B) If the DRB notified the applicant and counsel, if any, of the opportunity to request a new review, review of such corrective action is not required.

(10) Documents required by the JSRA or DASD (MP&FM). Upon request, the Military Department shall provide the administrative director with other documents required by the JSRA or the DASD (MP&FM) in the conduct of their reviews.

(e) Responses to inquiries. The following procedures shall be used in processing inquiries:

(1) The administrative director shall assign a docket number to the inquiry.

(2) The administrative director shall forward the inquiry to the Military Department concerned.

(3) The Military Department shall prepare a response to the inquiry and provide the administrative director with a copy of the response.

(4) The Military Department's response shall include the following or similar wording: “This is in response to your inquiry to the Office of the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) dated ____ concerning ____.

(f) Indexing. The DRB concerned shall reindex all amended decisional documents and shall provide copies of the amendments to the decisional documents to the Armed Forces Discharge Review/Correction Board Reading Room.

(g) Disposition of documents. The administrative director is responsible for the disposition of all Military Department, DRB, JSRA, and DASD (MP&FM) documents relevant to processing complaints and inquiries.

(h) Referral by the General Counsel, Department of Defense. The Stipulation of Dismissal permits Urban Law plaintiffs to submit complaints to the General Counsel, DoD, for comment. The General Counsel, DoD, may refer such complaints to the Military Department concerned or to the JSRA for initial comment.

(i) Decisional document and index entry principles. The DASD (MP&FM) shall identify significant principles concerning the preparation of decisional documents and index entries as derived from decisions under this section and other opinions of the Office of General Counsel, DoD. This review shall be completed not later than October 1 and April 1 of each year, or more frequently if deemed appropriate by the DASD (MP&FM). The significant principles identified in the review shall be coordinated as proposed as amendments to the sections of this part.

(j) Implementation of amendments. The following governs the processing of any correspondence that is docketed prior to the effective date of amendments to this section except as otherwise provided in such amendments:

(1) Any further action on the correspondence shall be taken in accordance with the amendments; and

(2) No revision of any action taken prior to the effective date of such amendments is required.

(a) Semiannual reports will be submitted by the 20th of April and October for the preceding 6-month reporting period (October 1 through March 31 and April 1 through September 30).

(b) The reporting period will be inclusive from the first through the last days of each reporting period.

(c) The report will contain four parts:

(1) Part 1. Regular Cases.

(2) Part 2. Reconsideration of President Ford's Memorandum of January 19, 1977, and Special Discharge Review Program Cases.

(3) Part 3. Cases Heard under Pub. L. 95-126 by waiver of 10 U.S.C. 1553, with regard to the statute of limitations.

(4) Part 4. Total Cases Heard.

This part:

(a) Prescribes uniform procedures and assigns responsibilities for the Military Services to avoid the unnecessary duplication of postsecondary education offerings in overseas areas under Pub. L. 99-145, section 1212 and DoD Directive 1322.8.1

(b) Under Pub. L. 145, section 1212:

(1) Reflects the statutory requirement, subject to the exceptions in § 72.1(b)(2) that no solicitation, contract, or agreement for off-duty postsecondary education services for military members, DoD civilian employees, or the dependents of such military members or employees, other than for services at the graduate or postgraduate level, may limit the offering of such services or any group, category, or level of courses to a single academic institution.

(2) Prescribes criteria for avoiding the unnecessary duplication of educational services by exercising the authority in Pub. L. 99-145 to grant exceptions, when required, to § 72.1(b)(1).

This part:

(a) Applies to the Office of the Secretary of Defense (OSD) and the Military Departments.

(b) Shall be extended to all persons seeking or receiving off-duty postsecondary education services, as described in § 72.1(b)(1).

(a) Each Overseas Theater Commander shall implement this part and may:

(1) When necessary to avoid unnecessary duplication of offerings of postsecondary education services, authorize the issuance of solicitations and the execution of contracts and agreements that limit the provision of such offerings at one or more installations to one institution or a prescribed maximum number of institutions.

(2) Delegate the authority in § 72.3(a)(1) but not below the level of a general or flag officer, or a civilian equivalent.

(a) Under this part, “unnecessary duplication” means the provision of education services by two or more potential offerers which, because of such duplication, is determined to have an adverse effect on the provision of the education services provided in the theater concerned, consistent with ensuring the maximum availability of alternative offerers of such services.

(b) One or more of the following criteria must be satisfied to limit the number of providers of postsecondary education services:

(1) The demographic distribution of the potential student population prevents the effective delivery of postsecondary education services by multiple offerers.

(2) Adequate classroom and administrative space to meet education program needs is not available to multiple providers.

(3) DoD educational staff needed to manage education programs at the installation level are not available.

(4) The theater commander cannot provide reasonable logistic support to installations and persons employed in providing education programs if there are multiple providers. Logistic support includes supplies, services, facilities, transportation, privileges and other benefits provided to nongovernmental entities or individuals.

(c) Where necessary, the enrollments generated at large installations may be used to balance the enrollments at small or remote locations to provide for economies of scale and to ensure availability of the widest range of education services possible at reasonable tuition rates, consistent with § 72.4(a) of this part.

This part is effective May 9, 1988. Forward one copy of implementing documents to the Assistant Secretary of Defense (Force Management and Personnel) within 120 days.