[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2000 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

                    32


          Parts 400 to 629

                         Revised as of July 1, 2000

National Defense





          Containing a Codification of documents of general 
          applicability and future effect
          As of July 1, 2000
          With Ancillaries
          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

As a Special Edition of the Federal Register



[[Page ii]]

                                      




                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2000



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 32:
    Subtitle A--Department of Defense (Continued):
          Chapter V--Department of the Army                          5
  Finding Aids:
      Table of CFR Titles and Chapters........................     613
      Alphabetical List of Agencies Appearing in the CFR......     631
      List of CFR Sections Affected...........................     641



[[Page iv]]


      


                     ----------------------------

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  32 CFR 501.1 refers 
                       to title 32, part 501, 
                       section 1.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 2000, consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
info@fedreg.nara.gov.

SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call 202-512-1800, 
M-F 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2233, 24 hours 
a day. For payment by check, write to the Superintendent of Documents, 
Attn: New Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. For GPO 
Customer Service call 202-512-1803.

ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers, Weekly Compilation of Presidential 
Documents and the Privacy Act Compilation are available in electronic 
format at www.access.gpo.gov/nara (``GPO Access''). For more 
information, contact Electronic Information Dissemination Services, U.S. 
Government Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-
free). E-mail, gpoaccess@gpo.gov.

[[Page vii]]

    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.nara.gov/fedreg. The NARA 
site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

July 1, 2000.



[[Page ix]]



                               THIS TITLE

    Title 32--National Defense is composed of six volumes. The parts in 
these volumes are arranged in the following order: parts 1-190, parts 
191-399, parts 400-629, parts 630-699, parts 700-799, and part 800 to 
End. The contents of these volumes represent all current regulations 
codified under this title of the CFR as of July 1, 2000.

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

    For this volume, Melanie L. Marcec was Chief Editor. The Code of 
Federal Regulations is published under the direction of Frances D. 
McDonald, assisted by Alomha S. Morris.

[[Page x]]





[[Page 1]]



                       TITLE 32--NATIONAL DEFENSE




                  (This book contains parts 400 to 629)

  --------------------------------------------------------------------
                                                                    Part

             SUBTITLE A--Department of Defense (Continued):

chapter v--Department of the Army...........................         501


Cross References: American Battle Monuments Commission: See Parks, 
  Forests, and Public Property, 36 CFR, chapter IV.


  Department of Veterans Affairs: See Pensions, Bonuses, and Veterans' 
Relief, 38 CFR, chapter I.


  Federal Acquisition Regulations System, 48 CFR.

[[Page 3]]

                        Subtitle A--Department of

                           Defense (Continued)

  --------------------------------------------------------------------


[[Page 5]]



                    CHAPTER V--DEPARTMENT OF THE ARMY




                           (Parts 400 to 629)

  --------------------------------------------------------------------

       SUBCHAPTER A--AID OF CIVIL AUTHORITIES AND PUBLIC RELATIONS
Part                                                                Page
400-500         [Reserved]
501             Employment of troops in aid of civil 
                    authorities.............................           7
502             Relief assistance...........................           9
503             Apprehension and restraint..................          15
504             Obtaining information from financial 
                    institutions............................          17
505             The Army Privacy program....................          26
507             Manufacture and sale of decorations, medals, 
                    badges, insignia, commercial use of 
                    heraldic designs and Heraldic Quality 
                    Control Program.........................          62
508             Competition with civilian bands.............          69
510             Chaplains...................................          69
513             Indebtedness of military personnel..........          69
516             Litigation..................................          80
518             The Army Freedom of Information Act Program.         137
519             Publication of rules affecting the public...         198
525             Entry authorization regulation for Kwajalein 
                    Missile Range...........................         203
527             Personal check cashing control and abuse 
                    prevention..............................         210
                    SUBCHAPTER B--CLAIMS AND ACCOUNTS
534             Military court fees.........................         229
536             Claims against the United States............         233
537             Claims on behalf of the United States.......         269
538             Military payment certificates...............         277
                    SUBCHAPTER C--MILITARY EDUCATION
542             Schools and colleges........................         281
543-544         [Reserved]

       SUBCHAPTER D--MILITARY RESERVATIONS AND NATIONAL CEMETERIES
552             Regulations affecting military reservations.         284

[[Page 6]]

553             Army national cemeteries....................         345
555             Corps of Engineers, research and 
                    development, laboratory research and 
                    development and tests, work for others..         357
                    SUBCHAPTER E--ORGANIZED RESERVES
562             Reserve Officers' Training Corps............         362
564             National Guard regulations..................         366
                         SUBCHAPTER F--PERSONNEL
571             Recruiting and enlistments..................         374
574             United States Soldiers' and Airmen's Home...         380
575             Admission to the United States Military 
                    Academy.................................         382
578             Decorations, medals, ribbons, and similar 
                    devices.................................         385
581             Personnel review board......................         435
583

Former personnel [Reserved]

584             Family support, child custody, and paternity         444
589             Compliance with court orders by personnel 
                    and command sponsored family members....         463
                        SUBCHAPTER G--PROCUREMENT
619             Program for qualifying DoD freight motor 
                    carriers, exempt surface freight 
                    forwarders, and shipper agents..........         467
                  SUBCHAPTER H--SUPPLIES AND EQUIPMENT
621             Loan and sale of property...................         496
623             Loan of Army materiel.......................         507
625             Surface transportation--administrative 
                    vehicle management......................         549
626             Biological Defense Safety Program...........         550
627             The Biological Defense Safety Program, 
                    technical safety requirements (DA 
                    Pamphlet 385-69)........................         562


  Editorial Note: Other regulations issued by the Department of the Army 
appear in title 33, chapter II; and title 36, chapter III.


Abbreviations:
    The following abbreviations are used in this chapter: AGCT=Army 
  General Classification Test. AGO=Adjutant General's Office. APP=Army 
  Procurement Procedure. AR=Army Regulations. ASPR=Armed Services 
  Procurement Regulations. ATC=Air Transport Command. A. W.=Articles of 
  War. AWOL=Absent Without Leave. Comp. Gen.=Comptroller General. 
  OCF=Office, Chief of Finance. ROTC=Reserve Officer's Training Corps. 
  ZI=Zone of Interior.

[[Page 7]]





       SUBCHAPTER A--AID OF CIVIL AUTHORITIES AND PUBLIC RELATIONS





PARTS 400-500 [RESERVED]






PART 501--EMPLOYMENT OF TROOPS IN AID OF CIVIL AUTHORITIES--Table of Contents




Sec.
501.1  Basic policies.
501.2  Emergency.
501.3  Command authority.
501.4  Martial law.
501.5  Protection of Federal property.
501.6  End of commitment.
501.7  Loan of military resources to civil authorities.

    Authority: Secs. 331, 332, 333, and 3012, 70A Stat. 15, 157; 10 
U.S.C. 331, 332, 333, 3012.

    Source: 34 FR 14126, Sept. 6, 1969, unless otherwise noted.



Sec. 501.1  Basic policies.

    (a) The protection of life and property and the maintenance of law 
and order within the territorial jurisdiction of any State are the 
primary responsibility of State and local civil authorities. Generally, 
Federal Armed Forces are committed after State and local civil 
authorities have utilized all of their own forces and are unable to 
control the situation, or when the situation is beyond the capabilities 
of State or local civil authorities, or when State and local civil 
authorities will not take appropriate action. Commitment of Federal 
Armed Forces will take place only--
    (1) Under the provisions of this part, and
    (2) When the Secretary of the Army, pursuant to the orders and 
policies of the Secretary of Defense and the President, has generally or 
specifically so ordered, except in cases of emergency (Sec. 501.2).
    (b) The Secretary of the Army has been designated as the Executive 
Agent for the Department of Defense in all matters pertaining to the 
planning for, and deployment and employment of military resources in the 
event of civil disturbances. The Department of the Army is responsible 
for coordinating the functions of all the Military Services in this 
activity for the Executive Agent. The Secretaries of the other Military 
Services are responsible for providing such assistance as may be 
requested by the Executive Agent.
    (c) Persons not normally subject to military law taken into custody 
by the military forces incident to the use of Armed Forces, as 
contemplated by this part, will be turned over, as soon as possible, to 
the civil authorities. The Army will not operate temporary confinement/
detention facilities unless local facilities under the control of city, 
county, and State governments and the U.S. Department of Justice cannot 
accommodate the number of persons apprehended or detained. Further, this 
authority may be exercised only in the event Federal Armed Forces have 
been committed under the provisions of this part and only with the prior 
approval of the Department of the Army. When the requirement exists for 
the Army to operate such facilities, the provisions of Army confinement 
regulations will apply to the maximum extent feasible under the 
circumstances.
    (d) Whenever military aid is requested by civil authorities in the 
event of civil disturbances within the States of Alaska, or Hawaii, the 
Commonwealth of Puerto Rico, or U.S. possessions and territories, the 
commander of the unified command concerned coordinates the provision of 
such aid.
    (e) Units and members of the Army Reserve on active duty may be 
employed in civil disturbance operations in the same manner as active 
forces. Units and members of the Army Reserve may be ordered to active 
duty for this purpose by the President as provided by law. Members of 
the Army Reserve, with their consent, may be ordered to active duty for 
civil disturbance operations under the provisions of 10 U.S.C. 672.



Sec. 501.2  Emergency.

    (a) In cases of sudden and unexpected invasion or civil disturbance, 
including

[[Page 8]]

civil disturbances incident to earthquake, fire, flood, or other public 
calamity endangering life or Federal property or disrupting Federal 
functions or the normal processes of Government, or other equivalent 
emergency so imminent as to make it dangerous to await instructions from 
the Department of the Army requested through the speediest means of 
communications available, an officer of the Active Army in command of 
troops may take such action, before the receipt of instructions, as the 
circumstances of the case reasonably justify. However, in view of the 
availability of rapid communications capabilities, it is unlikely that 
action under this authority would be justified without prior Department 
of the Army approval while communications facilities are operating. Such 
action, without prior authorization, of necessity may be prompt and 
vigorous, but should be designed for the preservation of law and order 
and the protection of life and property until such time as instructions 
from higher authority have been received, rather than as an assumption 
of functions normally performed by the civil authorities.
    (b) Emergency firefighting assistance may be provided pursuant to 
agreements with local authorities; emergency explosive ordnance disposal 
service may be provided in accordance with paragraph 18, AR 75-15.



Sec. 501.3  Command authority.

    (a) In the enforcement of the laws, Federal Armed Forces are 
employed as a part of the military power of the United States and act 
under the orders of the President as Commander in Chief. When commitment 
of Federal Armed Forces has taken place, the duly designated military 
commander at the objective area will act to the extent necessary to 
accomplish his mission. In the accomplishment of his mission, reasonable 
necessity is the measure of his authority, subject of course, to 
instructions he may receive from his superiors.
    (b) Federal Armed Forces committed in aid of the civil authorities 
will be under the command of, and directly responsible to, their 
military and civilian superiors through the Department of the Army chain 
of command. They will not be placed under the command of an officer of 
the State Defense Forces or of the National Guard not in the Federal 
service, or of any local or State civil official; any unlawful or 
unauthorized act on the part of such troops would not be excusable on 
the ground that it was the result of an order received from any such 
officer or official. As directed by the Army Chief of Staff, military 
commanders will be responsive to authorized Federal civil officials.



Sec. 501.4  Martial law.

    It is unlikely that situations requiring the commitment of Federal 
Armed Forces will necessitate the declaration of martial law. When 
Federal Armed Forces are committed in the event of civil disturbances, 
their proper role is to support, not supplant, civil authority. Martial 
law depends for its justification upon public necessity. Necessity gives 
rise to its creation; necessity justifies its exercise; and necessity 
limits its duration. The extent of the military force used and the 
actual measures taken, consequently, will depend upon the actual threat 
to order and public safety which exists at the time. In most instances 
the decision to impose martial law is made by the President, who 
normally announces his decision by a proclamation, which usually 
contains his instructions concerning its exercise and any limitations 
thereon. However, the decision to impose martial law may be made by the 
local commander on the spot, if the circumstances demand immediate 
action, and time and available communications facilities do not permit 
obtaining prior approval from higher authority (Sec. 501.2). Whether or 
not a proclamation exists, it is incumbent upon commanders concerned to 
weigh every proposed action against the threat to public order and 
safety it is designed to meet, in order that the necessity therefor may 
be ascertained. When Federal Armed Forces have been committed in an 
objective area in a martial law situation, the population of the 
affected area will be informed of the rules of conduct and other 
restrictive measures the military is authorized to enforce. These will 
normally be announced by

[[Page 9]]

proclamation or order and will be given the widest possible publicity by 
all available media. Federal Armed Forces ordinarily will exercise 
police powers previously inoperative in the affected area, restore and 
maintain order, insure the essential mechanics of distribution, 
transportation, and communication, and initiate necessary relief 
measures.



Sec. 501.5  Protection of Federal property.

    The right of the United States to protect Federal property or 
functions by intervention with Federal Armed Forces is an accepted 
principle of our Government. This form of intervention is warranted only 
where the need for protection exists and the local civil authorities 
cannot or will not give adequate protection. This right is exercised by 
executive authority and extends to all Federal property and functions.



Sec. 501.6  End of commitment.

    The use of Federal Armed Forces for civil disturbance operations 
should end as soon as the necessity therefor ceases and the normal civil 
processes can be restored. Determination of the end of the necessity 
will be made by the Department of the Army.



Sec. 501.7  Loan of military resources to civil authorities.

    (a) The Department of the Army in certain limited situations can 
lend military equipment to civil law enforcement authorities in the 
event of civil disturbances. Such loans of equipment are limited to 
those necessary to meet an urgent need during an actual civil 
disturbance (except as provided in paragraph (b) of this section) and 
the loans are considered to be a temporary emergency action. Civil law 
enforcement authorities are to be encouraged to procure their own 
equipment for police use since, even though requests are handled 
expeditiously, normally some time will elapse before the military 
equipment can be in the hands of the civil law enforcement authorities. 
Law enforcement authorities are to be cautioned not to rely on the loan 
of military equipment in the event of a civil disturbance in their 
locality because the availability of military equipment for civilian use 
is contingent upon military requirements for the Department of the Army 
resources.
    (b) A loan agreement will be executed with the civil authority in 
each case. The agreement will indicate that the property may be retained 
by the civil authorities only for the duration of the civil disturbance, 
but for not more than 15 days; however, should the civil disturbance 
exceed 15 days the approving authority may extend the agreement for 
another 15-day period. It is recognized that there is often a 
substantial leadtime before equipment procured by civil law enforcement 
authorities will be delivered to them. For this reason loans of 
equipment beyond the 15-day limit are authorized when a request is made 
in anticipation of imminent threatened civil disturbance and the civil 
authority requesting the loan has initiated procurement action for 
equipment substantially similar to the military property requested. 
Loans may be approved for terms of up to 90 days pending delivery to the 
civil authority of its own equipment and renewed by the approving 
authority for another 90-day period if necessary.
    (c) Each loan agreement will contain provisions for a cash bond, 
performance bond, or the equivalent equal to the value of the loaned 
equipment, as a condition to making the loan; waiver of the requirement 
to post bond will be approved only by the Department of the Army. With 
the prior concurrence of the Department of the Army, the bond will be 
forfeited in the event the equipment is not returned at the time 
specified. However, the forfeiture of the bond will not constitute a 
sale of the equipment, and the borrower will not be relieved of his 
obligation to return the loaned equipment. Loan agreements will clearly 
state the expenses and obligations assumed by the civil authority.



PART 502--RELIEF ASSISTANCE--Table of Contents




                             Disaster Relief

Sec.
502.1  Purpose and applicability.
502.2  Definitions.
502.3  Provisions of disaster relief legislation and Executive orders 
          and other authorities.

[[Page 10]]

502.4  Department of Defense policies and delegation of authority.
502.5  Department of the Army policies and designation of 
          responsibilities.

                            Relief Shipments

502.11  Commercial freight shipments of supplies by voluntary non-profit 
          relief agencies.

    Authority: Sec. 3012, 70A Stat. 157; 10 U.S.C. 3012.

    Source: 31 FR 7966, June 4, 1966, unless otherwise noted.

                             Disaster Relief



Sec. 502.1  Purpose and applicability.

    (a) Sections 502.1 through 502.5 contain Department of the Army 
policy and responsibilities for operations involving participation in 
natural disaster relief activities.
    (b) Sections 502.1 through 502.5 are applicable in the 48 contiguous 
States and the District of Columbia, and where not in conflict with 
public law or other proper authority, have equal application to Alaska, 
Hawaii, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the 
Trust Territory of the Pacific Islands. Within the latter areas, the 
commander of the unified command concerned is responsible for emergency 
employment of military resources in disaster relief.
    (c) Policy and guidance for related type emergencies involving 
employment of Army resources are contained in AR 600-50 (Civil 
Disturbances), AR 500-70 (Civil Defense), and AR 420-90 (Fire Prevention 
and Protection).
    (d) The provisions of Secs. 502.1 through 502.5 apply generally 
except as otherwise covered in directives of Chief of Engineers 
pertinent to the Civil Works Program.



Sec. 502.2  Definitions.

    For the purpose of Secs. 502.1 through 502.5 the following 
definitions apply:
    (a) Natural disaster. All domestic emergencies except those created 
as a result of enemy attack or civil disturbance.
    (b) Major disaster. Any disaster caused by flood, drought, fire, 
earthquake, storm, hurricane, or other catastrophe, which in the 
determination of the President, is or threatens to be, of such severity 
and magnitude as to warrant disaster assistance by the Federal 
Government under the provisions of Pub. L. 875 (see Sec. 502.3(a)) to 
supplement the efforts and available resources of State and local 
governments in alleviating the damage, hardship or suffering caused 
thereby.
    (c) Imminent seriousness. An emergency condition of immediate 
urgency in which it would be dangerous to delay necessary action by 
waiting for instructions from higher authority despite the fact such 
instructions are requested through command channels by the most 
expeditious means of communication available.
    (d) Military resources. Includes personnel, equipment, and supplies 
of Department of Defense agencies including the Army, Navy, Air Force, 
Marine Corps, and Defense Supply Agency.
    (e) State. Includes any State in the United States, the District of 
Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the 
Trust Territory of the Pacific Islands.
    (f) Local government. Includes any county, city, village, town, 
district, or other political subdivision of any State, or the District 
of Columbia.
    (g) Federal agency. Includes any departmental, independent 
establishment, government corporation, or other agency of the executive 
branch of the Federal Government, excepting, however, the American 
National Red Cross.
    (h) Office of Emergency Planning (OEP). The Federal Executive agency 
in the Executive Office of the President responsible for coordinating 
Federal assistance for major disasters in behalf of the President.
    (i) Office of Civil Defense (OCD). The office under the Secretary of 
the Army responsible for plans and preparations for civil defense.
    (j) American National Red Cross (ANRC). The national organization of 
the Red Cross organized to undertake activities for the relief of 
persons suffering from disaster as stated in section 3 of the Act of 
January 5, 1905, chapter 23, as amended (36 U.S.C. 3), entitled ``An Act 
To Incorporate the American National Red Cross.''
    (k) DOD components. Army, Navy, Air Force, Marine Corps, Defense 
Supply

[[Page 11]]

Agency, and other Department of Defense agencies.



Sec. 502.3  Provisions of disaster relief legislation and Executive orders and other authorities.

    The following guidelines are pertinent to disaster relief action.
    (a) Public Law 875, 81st Congress, as amended, 42 U.S.C. 1855-1855g 
(Federal Disaster Act of 30 September 1950), hereinafter referred to as 
Pub. L. 875, which provides for supplementary Federal assistance to 
State and local governments in major disasters, and for other purposes.
    (b) Executive Order 10427 dated January 16, 1953, as amended, which 
delegates to the Director, OEP the authority to direct and coordinate 
other Federal agencies in rendering assistance to State and local 
governments under provisions of Pub. L. 875.
    (c) Executive Order 10737, dated October 29, 1957, which amends 
Executive Order 10427 to include authority for the reimbursement of any 
Federal agency, subject to the concurrence of the Director of the Bureau 
of the Budget, for authorized expenditures for funds allocated by the 
President for use in assistance to a specific State.
    (d) Executive Order 11051 dated September 27, 1962, which 
specifically prescribes the responsibility of the Director, OEP as set 
forth in Executive Orders 10427 and 10737.
    (e) Federal assistance is authorized under provisions of Pub. L. 875 
only after the President has declared the specific disaster as defined 
in the Act. Such declaration is made after a request for Federal 
assistance by the Governor of the State (or the Board of Commissioners 
of the District of Columbia), through the appropriate OEP Regional 
Office Director.
    (f) Section 5 of the Act of August 18, 1941, ch. 377, as amended, 33 
U.S.C. 701n; is commonly known and hereinafter referred to as Public Law 
99 (Pub. L. 99). It provides basic guidance for the applicable emergency 
activities of the Corps of Engineers. The law provides discretionary 
authority for expenditures for flood emergency preparation; flood 
fighting and rescue operations, and emergency repair or restoration of 
flood control works and Federal shore protection or hurricane flood 
protection works. Administration of Pub. L. 99 is under the direction of 
the Secretary of the Army and the supervision of the Chief of Engineers. 
No declaration of a major disaster is required.
    (g) Existing statutes and Executive orders do not in any way limit 
Federal agencies from taking necessary action in accordance with 
existing policy and statutory authority in the event of a disaster which 
will not brook delay in the commencement of Federal assistance or other 
Federal action and/or pending the designation by the President of a 
major disaster.
    (h) The American National Red Cross is charged in accordance with 
its Charter, with continuing a system of national and international 
relief with voluntary service and financing, which in effect supports 
official disaster relief action.



Sec. 502.4  Department of Defense policies and delegation of authority.

    (a) Responsibility for alleviating disaster conditions rests 
primarily with individuals, families, private industry, local and State 
governments, the American National Red Cross, and those Federal agencies 
having special statutory responsibilities.
    (b) DOD components are authorized to assist civilian authorities as 
necessary or as directed by competent authority.
    (c) Where the disaster is of such imminent seriousness that delay in 
awaiting instructions from higher authority is unwarranted, a military 
commander will take such action as may be required and justified under 
the circumstances to save human life, prevent immediate human suffering, 
or mitigate major property damage or destruction. The commander will 
immediately report to higher authority the action taken and request 
appropriate guidance.
    (d) DOD components have been directed to develop, as appropriate, 
contingency plans for major disaster operations and insure that these 
are coordinated with appropriate civil authorities at State and local 
level.

[[Page 12]]

    (e) DOD components overseas will participate in foreign disaster 
relief operations as directed by unified commanders.
    (f) The Department of the Army has been directed to assume 
responsibility for military support in disasters within the continental 
United States (48 contiguous States and the District of Columbia). This 
includes responsibility for effective utilization, coordination, and 
control of resources made available by the Department of the Navy, the 
Department of the Air Force, and other DOD components as appropriate.
    (g) The Department of the Navy has been directed to coordinate with 
the Department of the Army in planning and supporting civil authorities 
in disaster relief operations.
    (h) The Department of the Air Force has been directed to coordinate 
with the Department of the Army in planning and supporting civil 
authorities in disaster relief operations including activities of the 
Civil Air Patrol.
    (i) The Joint Chiefs of Staff have been directed to issue 
instructions to appropriate unified commanders to insure proper planning 
and use of military resources for disaster relief operations in Alaska, 
Hawaii, Puerto Rico, the Virgin Islands, American Samoa, Guam, and the 
Trust Territory of the Pacific Islands.



Sec. 502.5  Department of the Army policies and designation of responsibilities.

    (a) Military commanders will conduct relief operations in the event 
of emergency as described in Sec. 502.4(c), or when directed by higher 
military authority or by direction of OEP under Pub. L. 875.
    (b) Use of military resources and other military participation in 
disaster relief will be on a minimum essential basis and terminated at 
the earliest practicable time. Military assistance in rehabilitation 
following a disaster is not authorized, except as directed by the OEP, 
or in support of emergency operations conducted by the Corps of 
Engineers as authorized by law.
    (c) Federal troops used in disaster relief activities will be under 
command of, and directly responsible to, their military superiors.
    (d) National Guard forces, if not in active Federal service, will 
remain under control of the State governor and will be considered part 
of the local resources available to civil authorities. Federally owned 
National Guard equipment may accompany a unit when ordered into disaster 
relief operations by a governor.
    (e) The Commanding General, U.S. Continental Army Command (CG 
USCONARC) is delegated responsibility for the conduct of Army support 
activities. Specifically he--
    (1) Is, under the provisions of Secs. 502.1 through 502.5, assigned 
responsibility for the conduct of military disaster relief in the 48 
contiguous States and the District of Columbia.
    (2) Will be prepared to conduct disaster relief operations as 
appropriate in Mexico or Canada upon direction of the Department of the 
Army.
    (3) Will coordinate and insure establishment of joint control of the 
disaster relief efforts of all DOD components. In local disasters not 
warranting a declaration of a major disaster, local civil authorities 
can be expected to make appeals for assistance direct to installations 
or activities other than those operated by the Department of the Army.
    (4) Will report to the Deputy Chief of Staff for Military Operations 
by the fastest electrical means when resources of DOD components are 
committed to disaster relief or when disaster conditions prevail that 
make commitment of DOD resources imminent.
    (5) Will, as appropriate, furnish available personnel and resources 
to District and Division Engineers of the Corps of Engineers prosecuting 
a flood fight under provisions of Pub. L. 99, or acting in response to a 
disaster relief directive from OEP under provisions of Pub. L. 875.
    (6) Will establish and maintain liaison with the Directors of OEP 
and OCD, the American National Red Cross, and such other Federal, State, 
and local governmental agencies as are necessary to discharge 
responsibilities under Secs. 502.1 through 502.5.

[[Page 13]]

    (7) Has full authority to approve or disapprove personal requests 
for military assistance made by a State governor or a member of 
Congress. This authority will not be delegated lower than ZI army 
commanders. Information on such requests and action taken will be 
furnished to Deputy Chief of Staff for Military Operations, Department 
of the Army, Washington, DC, 20310.
    (8) Will insure that ZI army commanders have an effective natural 
disaster information plan for use in the event of military operations. 
The plan should provide for early dispatch of information personnel to 
the scene.
    (f) ZI army commanders are specifically charged, under the overall 
direction of CG USCONARC, with supporting disaster relief operations, 
and they--
    (1) Will establish and maintain, as appropriate, liaison with 
Regional Directors, OEP and OCD, area offices of the American National 
Red Cross and other Federal, State, and local governmental agencies.
    (2) Will establish and maintain, as necessary, working relationships 
with appropriate DOD component headquarters, class II installations and 
Division/District Engineers to insure coordination of the overall 
military disaster relief effort within the Army area and will secure 
necessary information from such installations as required for reports.
    (3) Will assume control of resources made available by class II 
installations and activities for disaster assistance. If class II 
installation or activity resources are required but have not been made 
available by the activity commander, the ZI army commander will forward 
a request with justification through command channels to the Deputy 
Chief of Staff for Military Operations, Department of the Army. In those 
cases where commanders are unable to communicate with Headquarters, 
Department of the Army, and where in the opinion of the ZI army 
commander concerned, the extreme emergency warrants the temporary use of 
such resources, he will direct their use and report this action through 
command channels to the Deputy Chief of Staff for Military Operations.
    (4) Will, upon request, make resources available to District and 
Division Engineers performing a flood fight under provisions of Pub. L. 
99 and/or support the Corps of Engineers response to directive from OEP 
under provisions of Pub. L. 875.
    (5) Will coordinate the military relief effort with assistance 
provided by the Corps of Engineers under statutory authorities of the 
Chief of Engineers or as directed by the OEP under Pub. L. 875.
    (g) Class II installation and activity commanders are responsible 
for supporting disaster relief efforts under the provisions of 
Secs. 502.1 through 502.5, and they--
    (1) Will take action in local disasters of imminent seriousness as 
appropriate. Such action will be reported concurrently to his 
headquarters and to the respective ZI army commander.
    (2) Will, upon the request of the ZI army commander, designate those 
resources under their control which can be made immediately available 
for disaster relief operations. Only such resources will be placed under 
the operational control of the ZI army commander or Division/District 
Engineer conducting relief operations.
    (h) The Chief of Engineers is responsible for the provision of 
disaster assistance by applicable Division and District Engineers when 
required by disaster of imminent seriousness and as authorized by 
statutory authorities or as directed by the OEP under Pub. L. 875. He 
will--
    (1) Insure that Division and District Engineers establish and 
maintain appropriate liaison with ZI army commanders, regional Directors 
of OCD and OEP, the American National Red Cross, and other Federal, 
State and local governmental agencies as necessary to discharge assigned 
responsibilities.
    (2) Furnish the ZI army commanders concerned all pertinent 
information on floods or other natural disas- ters including activities 
undertaken by the Corps of Engineers. Information furnished will be by 
the fastest electrical means and consistent with reporting requirements 
placed on ZI army commanders.
    (3) Insure that Engineers preplanned procedures for disaster 
operations are

[[Page 14]]

coordinated among Division/District Engineers and the ZI army 
commanders, and include provisions covering flood emergencies.

                            Relief Shipments



Sec. 502.11  Commercial freight shipments of supplies by voluntary non-profit relief agencies.

    (a) Scope of section. Provided in this section are the rules under 
which the Department of the Army, in order to further the efficient use 
of United States voluntary contributions for relief in the foreign 
country hereinafter named, will pay ocean freight charges from United 
States ports to designated foreign ports of entry on supplies donated to 
or purchased by United States voluntary nonprofit relief agencies 
registered with and recommended by the Advisory Committee on Voluntary 
Foreign Aid (called ``the Committee'' in this section), for distribution 
in the Ryukyu Islands.
    (b) Agencies within scope of this section. Any United States 
voluntary nonprofit relief agency may make application to the Chief of 
Civil Affairs, Department of the Army, Washington, DC 20310, for 
reimbursement of ocean freight charges on shipments of supplies donated 
to or purchased by it for distribution within the foreign country listed 
in paragraph (a) of this section, Provided:
    (1) The agency is registered with and recommended by the Committee 
to the Department of the Army;
    (2) The supplies are within the general program and projects of the 
agency as previously submitted to and approved by the Committee, and are 
essential in support of such programs and projects;
    (3) The agency's representatives to whom the supplies are consigned 
for distribution abroad are acceptable to the Committee;
    (4) The Committee has notified the Department of the Army that:
    (i) The agency is not engaged in commercial or political activities;
    (ii) Contributions to the agency are eligible for tax exemption 
under income tax laws;
    (iii) The agency is directed by an active and responsible board of 
American citizens who serve without compensation;
    (iv) The accounts of the agency are regularly audited by a certified 
public accountant;
    (v) The agency currently reports its activities and operations to 
the Committee including its budget and reports of income and 
expenditures, its transfer of funds, and its exports of commodities and 
such other information as the Committee may deem necessary, and such 
reports are open for public inspection;
    (vi) The general program and projects by countries of operation of 
the agency have been approved by the Committee to permit the 
coordination of private agency programs with each other and with the 
programs of the Department of the Army in the Ryukyu Islands;
    (vii) The Government of the country in which the supplies are 
distributed affords appropriate facilities for the necessary and 
economic operation of the agency's general program and projects;
    (viii) The supplies are free of customs duties, other duties, tolls, 
and taxes;
    (ix) The agency has assumed responsibility for noncommercial 
distribution of the supplies free of cost to the person or persons 
ultimately receiving them and distribution of the supplies is supervised 
by United States citizens, and such operations are appropriately 
identified as to their American character.
    (c) Manner of payment of ocean freight charges. (1) The Department 
of the Army will reimburse agencies qualified under this section, to the 
extent of ocean freight charges paid by them for shipments made in 
conformity with this section: Provided, That application for such 
reimbursement on shipments must be submitted to the Department within 
thirty days of date of shipment, together with receipted invoices for 
such charges, supported by ocean bills of lading, showing that such 
charges are limited to the actual cost of transportation of the supplies 
from end of ship's tackle at the United States port of loading to end of 
ship's tackle at port of discharge, correctly assessed at the time of 
loading by the carrier for freight on a weight, measurement or

[[Page 15]]

unit basis, and free of any other charges.
    (2) The voluntary non-profit relief agencies which qualify under 
this section may apply to the Office of the Chief of Civil Affairs, 
Department of the Army, Washington, DC 20310, for authorization to make 
shipments via Military Sea Transportation Service vessels, in conformity 
with this section. Upon approval of the request, the Chief of Civil 
Affairs will issue a Department of Army Approved Part Program 
authorizing shipment from a designated Port of Embarkation to end of 
ship's tackle at port of discharge, and including fund citation for 
reimbursement of Chief of Transportation. All costs of inland 
transportation are to be borne by the voluntary agencies.
    (d) Refund by agencies. Any agency reimbursed under this section 
will refund promptly to the Department of the Army upon demand the 
entire amount reimbursed (or such lessor amount as the Department may 
demand) whenever it is determined that the reimbursement was improper as 
being in violation of any of the provisions of the Foreign Assistance 
Act of 1948, any acts amendatory thereof or supplemental thereto, any 
relevant appropriation acts, or any rules, regulations or procedures of 
the Department of the Army.
    (e) Saving clause. The Secretary of the Army may waive, withdraw, or 
amend at any time or from time to time any or all of the provisions of 
this section.


(Interpret or apply Title II, sec. 112, 75 Stat. 719, 22 U.S.C. 2366 
note)

[27 FR 177, Jan 6, 1962]



PART 503--APPREHENSION AND RESTRAINT--Table of Contents




Sec.
503.1  Persons not subject to military law.
503.2  Delivery to civil authorities.



Sec. 503.1  Persons not subject to military law.

    Persons not subject to military law may be apprehended or restrained 
by members of the Department of the Army, other than in foreign 
countries, as follows:
    (a) General. All members of the Department of the Army having the 
ordinary right and duty of citizens to assist in the maintenance of the 
peace. Where, therefore, a felony or a misdemeanor amounting to a breach 
of the peace is being committed in his presence, it is the right and 
duty of every member of the military service, as of every civilian, to 
apprehend the perpetrator.
    (b) Restraint. The restraint imposed under the provisions of 
paragraph (a) of this section will not exceed that reasonably necessary, 
nor extend beyond such time as may be required to dispose of the case by 
orderly transfer of custody to civil authority or otherwise, under the 
law.
    (c) Ejection. Persons not subject to military law who are found 
within the limits of military reservations in the act of committing a 
breach of regulations, not amounting to a felony or a breach of the 
peace, may be removed therefrom upon orders from the commanding officer 
and ordered by him not to reenter. For penalty imposed upon reentrance 
after ejection, see title 18, United States Code, section 1382.

(Sec. 3012, 70A Stat. 157; 10 U.S.C. 3012)

[28 FR 2732, Mar. 20, 1963]



Sec. 503.2  Delivery to civil authorities.

    (a) Authority. Any commanding officer exercising general court-
martial jurisdiction or commanding officer designated by him may, in 
accordance with the Uniform Code of Military Justice, Article 14 (10 
U.S.C. 814), authorize the delivery of a member of the Armed Forces 
under his command, when such member is accused of a crime or offense 
made punishable by the laws of the jurisdiction making the request, to 
the civil authorities of the United States, a State of the United 
States, or a political subdivision thereof under the conditions 
prescribed in this section.
    (b) Policy. The policy of the Department of the Army is that 
commanding officers will cooperate with civil authorities and, unless 
the best interests of the service will be prejudiced thereby, will 
deliver a member of the Armed Forces to such authorities upon 
presentation of a proper request accompanied

[[Page 16]]

by reliable information showing that there is reasonable cause to 
believe that the person requested has committed a crime or offense made 
punishable by the laws of the jurisdiction making the request. A person 
will not be shielded from a just prosecution by the civil authorities 
solely because of his status as a member of the Armed Forces. In 
determining whether a member of the Armed Forces should be delivered to 
the civil authorities, the commanding officer will exercise his sound 
discretion in the light of the facts and circumstances of each 
particular case. Among other pertinent matters, he should consider the 
seriousness of the offense charged, whether court-martial charges are 
pending against the alleged offender, whether he is serving a sentence 
imposed by court-martial, and whether, under the existing military 
situation, the best interest of the service warrant his retention in the 
Armed Forces. With respect to extradition process, military personnel 
may be considered to be in the same status as persons not members of the 
Armed Forces. It is contrary to the general policy of the Department of 
the Army to transfer military personnel from a station within one State 
to a station within another State for the purpose of making such 
individuals amenable to civilian legal proceedings. Accordingly, if the 
delivery of a member of the Army is requested by a State other than the 
State in which he is located, the authorities of the requesting State 
will be required to complete extradition process according to the 
prescribed procedures to obtain custody of an individual from the State 
in which he is located and to make arrangements to take him into custody 
there.
    (c) Requirements for delivery. There ordinarily will be required 
with each application by the civil authorities for the surrender of a 
member of the Armed Forces a copy of an indictment, presentment, 
information, or warrant, together with sufficient information to 
identify the person sought as the person who allegedly committed the 
offense charged and a statement of the maximum sentence which may be 
imposed upon conviction. If the request for delivery is based upon an 
indictment, presentment, or information, it will be assumed that there 
is reasonable cause to believe that the offense charged was committed by 
the person named therein. If the request for delivery is based upon a 
warrant, the commanding officer may cause an inquiry to be made to 
satisfy himself that reasonable cause exists for the issuance of the 
warrant; however, if a warrant is accompanied by the statement of a 
United States attorney or the prosecuting officer of a State of the 
United States or political subdivision thereof that a preliminary 
official investigation of the offense charged shows that there is 
reasonable cause to believe that the offense charged was committed by 
the person named therein, no further inquiry need be made.
    (d) Retaining custody pending request for delivery. If the 
commanding officer specified in paragraph (a) of this section is in 
receipt of a statement of a United States attorney or the prosecuting 
officer of a State of the United States or a political subdivision 
thereof that there is reasonable cause to believe that a member of the 
Armed Forces under his command has committed an offense punishable by 
the laws of the pertinent jurisdiction, the commanding officer may, upon 
the request of such civil official, agree to retain the alleged offender 
in his command for a reasonable period of time, not extending beyond the 
termination of his current enlistment or period of service, pending 
presentation of a request for delivery accompanied by the evidence 
indicated in paragraph (c) of this section.
    (e) Action by commanding officers. Commanding officers, other than 
those specified in paragraph (a) of this section, will refer such 
requests with their recommendation for disposition to the appropriate 
commanding officer, who, after determining the propriety of the request, 
will take the action indicated in this paragraph. If the commanding 
officer having authority to deliver denies a request for delivery of an 
offender to the civil authorities, he will immediately forward the 
request direct to The Judge Advocate General, together with his reasons 
for denying the request. In cases involving special circumstances, the 
commanding officer

[[Page 17]]

having authority to deliver may forward the request with his 
recommendation for disposition direct to The Judge Advocate General for 
advice before taking his action.
    (f) Procedure for executing delivery. When the commanding officer 
specified in paragraph (a) of this section authorizes the delivery of a 
person to the civil authorities, he will inform the appropriate 
requesting agency or official of the time and place of delivery. In 
addition, he will advise the requesting agency or official that delivery 
of the person will be made at no expense to the Department of the Army 
and with the understanding that the civil agency or official will advise 
the delivering commander of the outcome of the trial and, if the Army 
authorities desire to return the person, will deliver him to the place 
of original delivery or to an Army installation nearer the place of 
civil detention, as may be designated by the Army authorities, at no 
expense to the Department of the Army. A written receipt, in 
substantially the following form, should be executed by the official who 
takes delivery of the accused:

In consideration of the delivery of ------------ (Grade and name) ------
------, (Service number) ------------, United States Army, to the civil 
authorities of the: ------------, (United States) ------------, (State 
of) ------------, at ------------, (Place of delivery) for trial upon 
the charge of ------------, hereby agree, pursuant to the authority 
vested in me as ------------ (Official designation) that the commanding 
officer of ------------ (General court-martial jurisdiction) will be 
informed of the outcome of the trial and that ------------ will be 
returned to the Army authorities at the aforesaid place of delivery or 
to an Army installation nearer the place of civil detention, as may be 
designated by the authorities of the Department of the Army, without 
expense to such Department or to the person delivered, immediately upon 
dismissal of the charges or completion of the trial in the event he is 
acquitted, or immediately upon satisfying the sentence of the court in 
the event he is convicted and a sentence imposed, or upon other 
disposition of the case, unless the Army authorities shall have 
indicated that return is not desired.


The above agreement is substantially complied with when the civil agency 
or official advises the delivering commander of the outcome of the trial 
of the alleged offender and of his prospective release to the Army 
authorities, and the individual is furnished transportation and 
necessary cash to cover his incidental expenses en route to an 
installation designated by Army authorities.
    (g) Return to Army control. Upon being advised of the outcome of the 
trial or other disposition of the charges against the alleged offender, 
the commanding officer specified in paragraph (a) of this section will, 
if return is desired, inform the appropriate civil agency or official of 
the name and location of the Army installation to which such person is 
to be delivered. Either the place of original delivery or an 
installation nearer the place of civil detention of the offender may be 
designated in accordance with existing policies governing assignments 
and transfers of personnel.

(Sec. 3012, 70A Stat. 157; 10 U.S.C. 3012)

[28 FR 2732, Mar. 20, 1963]



PART 504--OBTAINING INFORMATION FROM FINANCIAL INSTITUTIONS--Table of Contents




Sec.
504.1  General.
504.2  Procedures.

Appendix A to Part 504--Request for Basic Identifying Account Data--
          Sample Format
Appendix B to Part 504--Customer Consent and Authorization for Access--
          Sample Format
Appendix C to Part 504--Certificate of Compliance With the Right to 
          Financial Privacy Act of 1978--Sample Format
Appendix D to Part 504--Formal Written Request for Access--Sample Format
Appendix E to Part 504--Customer Notice of Formal Written Request--
          Sample Format

    Authority: 12 U.S.C. 3401 et seq., Pub. L. 95-630, unless otherwise 
noted.

    Source: 46 FR 60195, Dec. 9, 1981, unless otherwise noted.



Sec. 504.1  General.

    (a) Purpose. This regulation provides DA policies, procedures, and 
restrictions governing access to and disclosure of financial records 
maintained by

[[Page 18]]

financial institutions during the conduct of Army investigations or 
inquiries.
    (b) Applicability and scope. (1) This regulation applies to all DA 
investigative activities conducted by the Active Army, the Army National 
Guard, and the US Army Reserve.
    (2) The provisions of 12 U.S.C. 3401 et seq. do not govern obtaining 
access to financial records maintained by financial institutions located 
outside of the states or territories of the United States, Puerto Rico, 
the District of Columbia, Guam, American Samoa, or the Virgin Islands. 
The procedures outlined in Sec. 504.2(d)(4) will be followed in seeking 
access to financial information from these facilities.
    (3) This regulation applies only to financial records maintained by 
financial institutions as defined in Sec. 504.1(c)(1).
    (c) Explanation of terms. For purposes of this regulation, the 
following terms apply:
    (1) Financial institution. Any office of a--
    (i) Bank.
    (ii) Savings bank.
    (iii) Credit card issuer as defined in section 103 of the Consumers 
Credit Protection Act (15 U.S.C. 1602(n)).
    (iv) Industrial loan company.
    (v) Trust company.
    (vi) Savings and loan association.
    (vii) Building and loan association.
    (viii) Homestead association (including cooperative banks).
    (ix) Credit union.
    (x) Consumer finance institution.

This includes only those offices located in any State or territory of 
the United States, or in the District of Columbia, Puerto Rico, Guam, 
American Samoa, or the Virgin Islands.
    (xi) Military banking contractors located outside the States or 
territories of the United States or the District of Columbia, Puerto 
Rico, Guam, American Samoa, or the Virgin Islands.
    (2) Financial record. An original record, its copy, or information 
known to have been derived from the original record held by a financial 
institution, pertaining to a customer's relationship with the financial 
institution.
    (3) Person. An individual or partnership of five or fewer 
individuals. (Per DODD 5400.12.)
    (4) Customer. Any person or authorized representative of that 
person--
    (i) Who used or is using any service of a financial institution.
    (ii) For whom a financial institution is acting or has acted as a 
fiduciary for an account maintained in the name of that person.
    (5) Law enforcement inquiry. A lawful investigation or official 
proceeding that inquires into a violation of, or failure to comply with, 
a criminal or civil statute or any enabling regulation, rule, or order 
issued pursuant thereto.
    (6) Army law enforcement office. Any army element, agency, or unit 
authorized to conduct investigations under the Uniform Code of Military 
Justice or Army regulations. This broad definition of, Army law 
enforcement office includes military police, criminal investigation, 
inspector general, and military intelligence activities conducting 
investigations of violations of law or regulation.
    (7) Personnel security investigation. An investigation required to 
determine a person's eligibility for access to classified information, 
assignment or retention in sensitive duties, or other designated duties 
requiring such investigation. Personnel security investigation includes 
investigations of subversive affiliations, suitability information, or 
hostage situations conducted to make personnel security determinations. 
It also includes investigations of allegations that--
    (i) Arise after adjudicative action, and
    (ii) Require resolution to determine a person's current eligibility 
for access to classified information or assignment or retention in a 
sensitive position. Within DA, personnel security investigations are 
conducted by the Defense Investigative Service.
    (d) Policy--(1) Customer consent. It is DA policy to seek customer 
consent to obtain a customer's financial records from a financial 
institution unless doing so would compromise or harmfully delay a 
legitimate law enforcement inquiry. If the person declines to consent to 
disclosure, the alternative

[[Page 19]]

means of obtaining the records authorized by this regulation will be 
used. (See Sec. 504.2 (c) through (g).)
    (2) Access requests. Except as provided in paragraph (d)(3) of this 
section and Secs. 504.1(f)(1), 504.2(g) and 504.2(j), Army investigative 
elements may not have access to or obtain copies of the information in 
the financial records of any customer from a financial institution 
unless the financial records are reasonably described and the--
    (i) Customer has authorized such disclosure (Sec. 504.2(b));
    (ii) Financial records are disclosed in response to a search warrant 
which meets the requirements of Sec. 504.2(d);
    (iii) Financial records are disclosed in response to a judicial 
subpoena which meets the requirements of Sec. 504.2(e); or
    (iv) Financial records are disclosed in response to a formal written 
request which meets the requirements of Sec. 504.2(f).
    (3) Voluntary information. Nothing in this regulation will preclude 
any financial institution, or any officer, employee, or agent of a 
financial institution, from notifying an Army investigative element that 
such institution, or officer, employee or agent has information which 
may be relevant to a possible violation of any statute or regulation.
    (e) Authority. (1) Law enforcement offices are authorized to obtain 
records of financial institutions per this regulation, except as 
provided in Sec. 504.2(e).
    (2) The head of a law enforcement office, of field grade rank or 
higher (or an equivalent grade civilian official), is authorized to 
initiate requests for such records.
    (f) Exceptions and waivers. (1) A law enforcement office may issue a 
formal written request for basic identifying account information to a 
financial institution as part of a legitimate law enforcement inquiry. 
The request may be issued for any or all of the following identifying 
data:
    (i) Name.
    (ii) Address.
    (iii) Account number.
    (iv) Type of account of any customer or ascertainable group of 
customers associated with a financial transaction or class of financial 
transactions.
    (2) A request for disclosure of the above specified basic 
identifying data on a customer's account may be issued without complying 
with the customer notice, challenge, or transfer procedures described in 
Sec. 504.2. However, if access to the financial records themselves is 
required, the procedures in Sec. 504.2 must be followed. (A sample 
format for requesting basic identifying account data is in app. A.)
    (3) No exceptions or waivers will be granted for those portions of 
this regulation required by law. Submit requests for exceptions or 
waivers of other aspects of this regulation to HQDA(DAPE-HRE), WASH, DC 
20310.



Sec. 504.2  Procedures.

    (a) General. A law enforcement official seeking access to a person's 
financial records will, when feasible, obtain the customer's consent. 
This chapter also sets forth other authorized procedures for obtaining 
financial records if it is not feasible to obtain the customer's 
consent. Authorized procedures for obtaining financial records follow. 
All communications with a US Attorney or a US District Court, as 
required by this regulation, will be coordinated with the supporting 
staff judge advocate before dispatch.
    (b) Customer consent. (1) A law enforcement office or personnel 
security element may gain access to or a copy of a customer's financial 
records by obtaining the customer's consent and authorization in 
writing. (See app. B for a sample format.) Any consent obtained under 
the provisions of this paragraph must--
    (i) Be in writing, signed, and dated.
    (ii) Identify the particular financial records being disclosed.
    (iii) State that the customer may revoke the consent at any time 
before disclosure.
    (iv) Specify the purpose of disclosure and to which agency the 
records may be disclosed.
    (v) Authorize the disclosure for a period not over 3 months.
    (vi) Contain a ``Statement of Customer Rights Under the Right to 
Financial Privacy Act of 1978'' (app. B).
    (2) Any customer's consent not containing all of the elements listed 
in

[[Page 20]]

paragraph a of this section will not be valid.
    (3) A copy of the customer's consent will be made a part of the law 
enforcement inquiry file.
    (4) A certification of compliance with 12 U.S.C. 3401 et seq. (app. 
C), along with the customer's consent, will be provided to the financial 
institution as a prerequisite to obtaining access to the financial 
records.
    (5) The annual reporting requirements of Sec. 504.2(m) apply to 
requests made to a financial institution even with the customer's 
consent.
    (c) Administrative summons or subpoena. The Army has no authority to 
issue an administrative summons or subpoena for access to financial 
records.
    (d) Search warrant. (1) A law enforcement office may obtain 
financial records by using a search warrant obtained under Rule 41 of 
the Federal Rules of Criminal Procedure in appropriate cases.
    (2) No later than 90 days after the search warrant is served, unless 
a delay of notice is obtained under Sec. 504.2(i), a copy of the search 
warrant and the following notice must be mailed to the customer's last 
known address:

    Records or information concerning your transactions held by the 
financial institution named in the attached search warrant were obtained 
by this (office/agency/unit) on (date) for the following purpose: (state 
purpose). You may have rights under the Right to Financial Privacy Act 
of 1978.

    (3) Search authorization signed by installation commanders or 
military judges will not be used to gain access to financial records 
from financial institutions in any State or territory of the United 
States.
    (4) Access to financial records maintained by military banking 
contractors in oversea areas or by other financial institutions located 
on DOD installations outside the United States, Puerto Rico, the 
District of Columbia, Guam, American Samoa, or the Virgin Islands is 
preferably obtained by customer consent.
    (i) In cases where it would not be appropriate to obtain this 
consent or such consent is refused and the financial institution is not 
otherwise willing to provide access to its records, the law enforcement 
activity may seek access by use of a search authorization. This 
authorization must be prepared and issued per AR 27-10, Legal Services.
    (ii) Information obtained under this paragraph should be properly 
identified as financial information. It should be transferred only where 
an official need-to-know exists. Failure to do so, however, does not 
render the information inadmissable in courts-martial or other 
proceedings.
    (iii) Law enforcement activities seeking access to financial records 
maintained by all other financial institutions overseas will comply with 
local foreign statutes or procedures governing such access.
    (e) Judicial subpoena. Judicial subpoenas--
    (1) Are those subpoenas issued in connection with a pending judicial 
proceeding.
    (2) Include subpoenas issued under paragraph 115 of the Manual for 
Courts-Martial and Article 46 of the Uniform Code of Military Justice. 
The servicing staff judge advocate will be consulted on the availability 
and use of judicial subpoenas. The notice and challenge provisions of 12 
U.S.C. 3407 and 3410 will be followed.
    (f) Formal written request. (1) A law enforcement office may 
formally request financial records when the records are relevant to a 
legitimate law enforcement inquiry. This request may be issued only if--
    (i) The customer has declined to consent to the disclosure of his or 
her records, or
    (ii) Seeking consent from the customer would compromise or harmfully 
delay a legitimate law enforcement inquiry.
    (2) A formal written request will be in a format set forth in 
appendix D and will--
    (i) State that the request is issued under the Right to Financial 
Privacy Act of 1978 and this regulation.
    (ii) Described the specific records to be examined.
    (iii) State that access is sought in connection with a legitimate 
law enforcement inquiry.
    (iv) Describe the nature of the inquiry.

[[Page 21]]

    (v) Be signed by the head of the law enforcement office or a 
designee (persons specified in Sec. 504.1(e)(2)).
    (3) At the same time or before a formal written request is issued to 
a financial institution, a copy of the request will be personally served 
upon or mailed to the customer's last known address unless a delay of 
customer notice has been obtained under Sec. 504.2(i). The notice to the 
customer will be--
    (i) In a format similar to appendix E.
    (ii) Personally served at least 14 days or mailed at least 18 days 
before the date on which access is sought.
    (4) The official who signs the customer notice is designated to 
receive any challenge from the customer.
    (5) The customer will have 14 days to challenge a notice request 
when personal service is made, and 18 days when service is by mail.
    (6) The head of the law enforcement office initiating the formal 
written request will set up procedures to insure that no access to 
financial records is attempted before expiration of the above time 
periods--
    (i) While awaiting receipt of a potential customer challenge, or
    (ii) While awaiting the filing of an application for an injunction 
by the customer.
    (7) Proper preparation of the formal written request and notice to 
the customer requires preparation of motion papers and a statement 
suitable for court filing by the customer. Accordingly, the law 
enforcement office intending to initiate a formal written request will 
coordinate preparation of the request, the notice, motion papers, and 
sworn statement with the supporting staff judge advocate. These 
documents are required by statute; their preparation cannot be waived.
    (8) The supporting staff judge advocate is responsible for liaison 
with the proper United States Attorney and United States District Court. 
The requesting official will coordinate with the supporting staff judge 
advocate to determine whether the customer has filed a motion to prevent 
disclosure of the financial records within the prescribed time limits.
    (9) The head of the law enforcement office (Sec. 504.2(f)(2)) will 
certify in writing (see app. C) to the financial institution that such 
office has complied with the requirements of 12 U.S.C. 3401 et seq.--
    (i) When a customer fails to file a challenge to access to financial 
records within the above time periods, or
    (ii) When a challenge is adjudicated in favor of the law enforcement 
office.

No access to any financial records will be made before such 
certification is given.
    (g) Emergency access. (1) In some cases, the requesting law 
enforcement office may determine that a delay in obtaining access would 
create an imminent danger of--
    (i) Physical injury to a person,
    (ii) Serious property damage, or
    (iii) Flight to avoid prosecution.

Section 504.2(g)(2)(3) provides for emergency access in such cases of 
imminent danger. (No other procedures in this regulation apply to such 
emergency access.)
    (2) When emergency access is made to financial records, the 
requesting official (Sec. 504.1(e)(2)) will--
    (i) Certify in writing (in a format similar to that in app. C) to 
the financial institution that the provisions of 12 U.S.C. 3401 et seq. 
have been complied with as a prerequisite to obtaining access.
    (ii) File with the proper court a signed, sworn statement setting 
forth the grounds for the emergency access within 5 days of obtaining 
access to financial records.
    (3) After filing of the signed, sworn statement, the official who 
has obtained access to financial records under this paragraph will--
    (i) Personally serve or mail to the customer a copy of the request 
to the financial institution and the following notice, unless a delay of 
notice has been obtained under Sec. 504.2(i):

    Records concerning your transactions held by the financial 
institution named in the attached request were obtained by (office/
agency/unit) under the Right to Financial Privacy Act of 1978 on (date) 
for the following purpose: (state with reasonable detail the nature of 
the law enforcement inquiry). Emergency access to such records was 
obtained on the grounds that (state grounds).


[[Page 22]]


    (ii) Insure that mailings under this section will be by certified or 
registered mail to the last known address of the customer.
    (4) The annual reporting requirements of Sec. 504.2(m) apply to any 
request for access under this section.
    (h) Release of information obtained from financial institutions--(1) 
Records notice. Financial records, to include derived information, 
obtained under 12 U.S.C. 3401 et seq. will be marked as follows:

    This record was obtained pursuant to the Right to Financial Privacy 
Act of 1978, 12 U.S.C. 3401 et seq., and may not be transferred to 
another Federal agency or department outside DOD without prior 
compliance with the transferring requirements of 12 U.S.C. 3412.

    (2) Records transfer. (i) Financial records originally obtained 
under this regulation will not be transferred to another agency or 
department outside the DOD unless the transferring law enforcement 
office certifies their relevance in writing. Certification will state 
that there is reason to believe that the records are relevant to a 
legitimate law enforcement inquiry within the jurisdiction of the 
receiving agency or department. To support this certification, the 
transferring office may require that the requesting agency submit 
adequate justification for its request. File a copy of this 
certification with a copy of the released records.
    (ii) Unless a delay of customer notice has been obtained 
(Sec. 504.2(i)), the transferring law enforcement office will, within 14 
days, personally serve or mail the following to the customer at his or 
her last known address--
    (A) A copy of the certification made according to 
Sec. 504.2(h)(2)(i) and
    (B) The following notice, which will state the nature of the law 
enforcement inquiry with reasonable detail:

    Copies of, or information contained in, your financial records 
lawfully in possession of the Department of the Army have been furnished 
to (state the receiving agency or department) pursuant to the Right to 
Financial Privacy Act of 1978 for (state the purpose). If you believe 
that this transfer has not been made to further a legitimate law 
enforcement inquiry, you may have legal rights under the Financial 
Privacy Act of 1978 or the Privacy Act of 1974.

    (iii) If a request for release of information is from a Federal 
agency authorized to conduct foreign intelligence or foreign 
counterintelligence activities (Executive Order 12036) and is for 
puposes of conducting such activities by these agencies, the information 
will be released without notifying the customer, unless permission to 
provide notification is given in writing by the requesting agency.
    (iv) Financial information obtained before the effective date of the 
Financial Privacy Act of 1978 (10 March 1978) may continue to be 
provided to other agencies according to existing procedures, to include 
applicable Privacy Act System Notices published in AR 340-21 series.
    (3) Precautionary measures. Whenever financial data obtained under 
this regulation is incorporated into a report of investigation or other 
correspondence, precautions must be taken to insure that--
    (i) The report or correspondence is not is not distributed outside 
of DOD except in compliance with paragraph (h)(2)(ii)(B) of this 
section.
    (ii) The report or other correspondence contains the following 
warning restriction on the first page or cover:

    Some of the information contained herein (cite specific paragraphs) 
is financial record information which was obtained pursuant to the Right 
to Financial Privacy Act of 1978, 12 U.S.C. 3401 et seq. This 
information may not be released to another Federal agency or department 
outside the DOD without compliance with the specific requirements of 12 
U.S.C. 3412 and AR 190-6.

    (i) Delay of customer notice procedures--(1) Length of delay. The 
customer notice required by formal written request (Sec. 504.2(f)(3)), 
emergency access (Sec. 504.2(g)(3)), and release of information 
(Sec. 504.2(h)(2)(iii)) may be delayed for successive periods of 90 
days. The notice required for search warrant (Sec. 504.2(d)(2)) may be 
delayed for one period of 180 days and successive periods of 90 days.
    (2) Conditions for delay. A delay of notice may be granted only by a 
court of competent jurisdiction. This will be done only when not 
granting a delay in serving the notice would result in--
    (i) Endangering the life or physical safety of any person.

[[Page 23]]

    (ii) Flight from prosecution.
    (iii) Destruction of or tampering with evidence.
    (iv) Intimidation of potential witnesses.
    (v) Otherwise seriously jeopardizing an investigation or official 
proceeding or unduly delaying a trial or ongoing official proceeding to 
the same degree as the circumstances in Sec. 504.2(i)(2)(ii) through 
(iv).
    (3) Coordination. When a delay of notice is appropriate, the law 
enforcement office involved will consult with the supporting staff judge 
advocate to obtain such a delay. Applications for delays of notice 
should contain reasonable detail.
    (4) After delay expiration. Upon the expiration of a delay of notice 
under above and required by--
    (i) Section 504.2(d)(1), the law enforcement office obtaining 
financial records will mail to the customer a copy of the search warrant 
and the following notice.

    Records or information concerning your transactions held by the 
financial institution named in the attached search warrant were obtained 
by this (agency or office) on (date). Notification was delayed beyond 
the statutory 90-day delay period pursuant to a determination by the 
court that such notice would seriously jeopardize an investigation 
concerning (state with reasonable detail). You may have rights under the 
Right to Financial Privacy Act of 1978.

    (ii) Section 504.2(f)(3), the law enforcement office obtaining 
financial records will serve personally or mail to the customer a copy 
of the process or request and the following notice:

    Records or information concerning your transactions which are held 
by the financial institution named in the attached process or request 
were supplied to or requested by the government authority named in the 
process or request on (date). Notification was withheld pursuant to a 
determination by the (title of the court so ordering) under the Right to 
Financial Privacy Act of 1978 that such notice might (state reason). The 
purpose of the investigation or official proceeding was (state purpose 
with reasonable detail).

    (iii) Section 504.2(g)(3), the law enforcement office obtaining 
financial records will serve personally or mail to the customer a copy 
of the request and the notice required by Sec. 504.2(g)(3).
    (iv) Section 504.2(h)(2), the law enforcement office transferring 
financial records will serve personally or mail to the customer the 
notice required by Sec. 504.2(f)(3). If the law enforcement office was 
responsible for obtaining the court order authoriziang the delay, such 
office shall also serve personally or by mail to the customer the notice 
required in Sec. 504.2(f)(3).
    (5) Annual reports. The annual reporting requirements of 
Sec. 504.2(m) apply to delays of notice sought or granted under this 
paragraph.
    (j) Foreign intelligence and foreign counterintelligence activities. 
(1) Except as indicated below, nothing in this regulation applies to 
requests for financial information in connection with authorized foreign 
intelligence and foreign counterintelligence activities as defined in 
Executive Order 12036. Appropriate foreign intelligence and 
counterintelligence directives should be consulted in these instances.
    (2) However, to comply with the Financial Privacy Act of 1978, the 
following guidance will be followed for such requests. When a request 
for financial records is made--
    (i) A military intelligence group commander, the chief of an 
investigative control office, or the Commanding General (or Deputy CG), 
US Army Intelligence and Security Command, will certify to the financial 
institution that the requesting activity has complied with the 
provisions of 12 U.S.C. 3403(b).
    (ii) The requesting official will notify the financial institution 
from which records are sought that 12 U.S.C. 3414(a)(3) prohibits 
disclosure to any person by the institution, its agents, or employees 
that financial records have been sought or obtained.
    (3) The annual reporting requirements shown in Sec. 504.2(m) apply 
to any request for access under this section.
    (k) Certification. A certificate of compliance with the Right of 
Financial Privacy Act of 1978 (app. C) will be provided to the financial 
institution as a prequisite to obtaining access to financial records 
under the following access procedures:
    (1) Customer consent (Sec. 504.2(b)).
    (2) Search warrant (Sec. 504.2(d)).
    (3) Judicial subpoena (Sec. 504.2(e)).
    (4) Formal written request (Sec. 504.2(f)).

[[Page 24]]

    (5) Emergency access (Sec. 504.2(g)).
    (6) Foreign intelligence and foreign counterintelligence activities 
(Sec. 504.2 (j)).
    (l) Penalties. Obtaining or disclosing financial records or 
financial information on a customer from a financial institution in 
violation of the Act or this regulation may subject the Army to payment 
of civil penalties, actual damages, punitive damages as the court may 
allow, and cost with reasonable attorney fees. Military and civilian 
personnel who willfully or intentionally violate the Act or this 
regulation may be subject to disciplinary action.
    (m) Right to Financial Privacy Act of 1978 Annual Report (RCS DD-
COMP(A)1538). (1) Major Army commanders will submit this report to 
HQDA(DAPE-HRE) concerning requests for financial information from 
financial institutions. Reports are to include all queries requested or 
information obtained under the provisions of this regulation by 
subordinate Army law enforcement offices (as defined in 
Sec. 504.1(c)(6)). Negative reports will be submitted.
    (2) This report is to arrive at HQDA(DAPE-HRE), WASH, DC 20310, not 
later than 1 February following the calendar year reported.
    (3) The annual report will contain the number of--
    (i) Requests for access to financial institutions, specifying the 
types of access and any other information deemed relevant or useful.
    (ii) Customer challenges to access and whether they were successful.
    (iii) Transfers to agencies outside of the DOD of information 
obtained under this regulation.
    (iv) Customer challenges to the transfer of information and whether 
they were successful.
    (v) Applications for delay of notice, the number granted, and the 
names of the officials requesting such delays.
    (vi) Delay of notice extensions sought and the number granted.
    (vii) Refusals by financial institutions to grant access, by 
category of authorization, such as customer consent or formal written 
request.
    (4) A consolidated Army report will be submitted by HQDA(DAPE-HRE) 
to the Defense Privacy Board, Office of the Deputy Assistant Secretary 
of Defense (Administration), by 15 February each year.

  Appendix A to Part 504--Request for Basic Identifying Account Data--
                              Sample Format

                          (Official Letterhead)

(Date)__________________________________________________________________
Mr./Mrs. ____________,
Chief Teller (as appropriate), First National Bank, Little Rock, AR 
          72203.
    Dear Mr./Mrs. ____________: In connection with a legitimate law 
enforcement inquiry and pursuant to section 3414(g) of the Right to 
Financial Privacy Act of 1978, section 3401 et seq., Title 12, United 
States Code, you are requested to provide the following account 
information: (name, address, account number, and type of account of any 
customer or ascertainable group of customers associated with a certain 
financial transaction or class of financial transactions as set forth in 
Sec. 504.1(f)).
    I hereby certify, pursuant to section 3403(b) of the Right to 
Financial Privacy Act of 1978, that the provisions of the Act have been 
complied with as to this request for account information.
(Official Signature Block)______________________________________________
    Under section 3417(c) of the Act, good faith reliance upon this 
certification relieves your institution and its employees and agents of 
any possible liability to the subject in connection with the disclosure 
of the requested financial records.

 Appendix B to Part 504--Customer Consent and Authorization for Access--
                              Sample Format

    Pursuant to section 3404(a) of the Right to Financial Privacy Act of 
1978, I, (name of customer), having read the explanation of my rights on 
the reverse side, hereby authorize the (name and address of financial 
institution) to disclose these financial records: (list of particular 
financial records) to (Army law enforcement office) for the following 
purpose(s): (specify the purpose(s)).
    I understand that this authorization may be revoked by me in writing 
at any time before my records, as described above, are disclosed, and 
that this authorization is valid for no more than 3 months from the date 
of my signature.

Date:___________________________________________________________________
Signature:______________________________________________________________
(Typed name)
(Mailing address of customer)

[[Page 25]]

Statement of Customer Rights Under the Right to Financial Privacy Act of 
                                  1978

    Federal law protects the privacy of your financial records. Before 
banks, savings and loan associations, credit unions, credit card 
issuers, or other financial institutions may give financial information 
about you to a Federal agency, certain procedures must be followed.

                      Consent to Financial Records

    You may be asked to consent to the financial institution making your 
financial records available to the Government. You may withhold your 
consent, and your consent is not required as a condition of doing 
business with any financial institution. If you give your consent, it 
can be revoked in writing at any time before your records are disclosed. 
Futhermore, any consent you give is effective for only 3 months and your 
financial institution must keep a record of the instances in which it 
discloses your financial information.

                          Without Your Consent

    Without your consent, a Federal agency that wants to see your 
financial records may do so ordinarily only by means of a lawful 
subpoena, summons, formal written request, or search warrant for that 
purpose. Generally, the Federal agency must give you advance notice of 
its request for your records explaining why the information is being 
sought and telling you how to object in court. The Federal agency must 
also send you copies of court documents to be prepared by you with 
instructions for filling them out. While these procedures will be kept 
as simple as possible, you may want to consult an attorney before making 
a challenge to a Federal agency's request.

                               Exceptions

    In some circumstances, a Federal agency may obtain financial 
information about you without advance notice or your consent. In most of 
these cases, the Federal agency will be required to go to court for 
permission to obtain your records without giving you notice beforehand. 
In these instances, the court will make the Government show that its 
investigation and request for your records are proper. When the reason 
for the delay of notice no longer exists, you will usually be notified 
that your records were obtained.

                         Transfer of Information

    Generally, a Federal agency that obtains your financial records is 
prohibited from transferring them to another Federal agency unless it 
certifies in writing the transfer is proper and sends a notice to you 
that your records have been sent to another agency.

                                Penalties

    If the Federal agency or financial institution violates the Right to 
Financial Privacy Act, you may sue for damages or seek compliance with 
the law. If you win, you may be repaid your attorney's fee and costs.

                         Additional Information

    If you have any questions about your rights under this law, or about 
how to consent to release your financial records, please call the 
official whose name and telephone number appears below:
_______________________________________________________________________
(Last Name, First Name, Middle Initial) Title (Area Code) (Telephone 
Number)
_______________________________________________________________________
(Component activity, address)

  Appendix C to Part 504--Certificate of Compliance With the Right to 
              Financial Privacy Act of 1978--Sample Format

                          (Official Letterhead)

Mr./Mrs. ____________,
Manager, Army Federal Credit Union, Fort Ord, CA 93941.

    Dear Mr./Mrs. ____________: I certify, pursuant to section 3403(b) 
of the Right to Financial Privacy Act of 1978, section 3401 et seq., 
Title 12, United States Code, that the applicable provisions of that 
statute have been complied with as to the (customer's consent, search 
warrant or judicial subpoena, formal written request, emergency access, 
as applicable) presented on (date), for the following financial records 
of (customer's name):
_______________________________________________________________________
(Describe the specific records)
(Official Signature Block)______________________________________________
    Pursuant to section 3417(c) of the Right to Financial Privacy Act of 
1978, good faith reliance upon this certificate relieves your 
institution and its employees and agents of any possible liability to 
the customer in connection with the disclosure of these financial 
records.

Appendix D to Part 504--Formal Written Request for Access--Sample Format

                          (Official Letterhead)

(Date)__________________________________________________________________
Mr./Mrs. ____________,
President (as appropriate), City National Bank and Trust Company, 
          Altoona, PA 16602.

    Dear Mr./Mrs. ____________: In connection with a legitimate law 
enforcement inquiry and pursuant to section 3402(5) and section 3408 of 
the Right to Financial Privacy Act of 1978, section 3401 et seq., Title 
12, United States Code, and Army Regulation 190-6, you

[[Page 26]]

are requested to provide the following account information pertaining to 
(identify customer);
_______________________________________________________________________
(Describe the specific records to be examined)
    The Army has no authority to issue an administrative summons or 
subpoena for access to these financial records which are required for 
(describe the nature or purpose of the inquiry).
    A copy of this request was (personally served upon or mailed to) the 
subject on (date) who has (10 or 14) days in which to challenge this 
request by filing an application in an appropriate United States 
district court if the subject desires to do so.
    Upon expiration of the above mentioned time period and in the 
absence of any filing or challenge by the subject, you will be furnished 
a certification certifying in writing that the applicable provisions of 
the Act have been complied with prior to obtaining the requested 
records. Upon your receipt of a Certificate of Compliance with the Right 
to Financial Privacy Act of 1978, you will be relieved of any possible 
liability to the subject in connection with the disclosure of the 
requested financial records.
(Official Signature Block)______________________________________________

   Appendix E to Part 504--Customer Notice of Formal Written Request--
                              Sample Format

                          (Official Letterhead)

(Date)__________________________________________________________________
Mr./Ms. ____________,
1500 N. Main Street, Washington, DC 20314.

    Dear Mr./Ms. ____________: Information or records concerning your 
transactions held by the financial institution named in the attached 
request are being sought by the (agency/department) in accordance with 
the Right to Financial Privacy Act of 1978, section 3401 et seq., Title 
12, United States Code, and Army Regulation 190-6, for the following 
purpose(s):
_______________________________________________________________________
(List the purpose(s))
    If you desire that such records or information not be made 
available, you must do the following:
    a. Fill out the accompanying motion paper and sworn statement or 
write one of your own--
    (1) Stating that you are the customer whose records are being 
requested by the Government.
    (2) Giving the reasons you believe that the records are not relevant 
or any other legal basis for objecting to the release of the records.
    b. File the motion and statement by mailing or delivering them to 
the clerk of any one of the following United States District Courts:
_______________________________________________________________________
(List applicable courts)
    c. Mail or deliver a copy of your motion and statement to the 
requesting authority: (give title and address).
    d. Be prepared to come to court and present your position in further 
detail.
    You do not need to have a lawyer, although you may wish to employ 
one to represent you and protect your rights.
    If you do not follow the above procedures, upon the expiration of 
(10 days from the date of personal service) (14 days from the date of 
mailing) of this notice, the records or information requested therein 
may be made available.
    These records may be transferred to other Government authorities for 
legitimate law enforcement inquiries, in which event you will be 
notified after the transfer if such transfer is made.
3 Inclosures (see para------)
(Signature)_____________________________________________________________



PART 505--THE ARMY PRIVACY PROGRAM--Table of Contents




Sec.
505.1  General information.
505.2  Individual rights of access and amendment.
505.3  Disclosure of personal information to other agencies and third 
          parties.
505.4  Record-keeping requirements under the Privacy Act.
505.5  Exemptions.

Appendix A to Part 505--Example of System of Records Notice
Appendix B to Part 505--Example of Report for New System of Records
Appendix C to Part 505--Provisions of the Privacy Act From Which a 
          General or Specific Exemption May Be Claimed
Appendix D to Part 505--Glossary of Terms

    Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).

    Source: 50 FR 42164, Oct. 18, 1985, unless otherwised noted.



Sec. 505.1  General information.

    (a) Purpose. This regulation sets forth policies and procedures that 
govern personal information kept by the Department of the Army in 
systems of records.
    (b) References--(1) Required publications. (i) AR 195-2, Criminal 
Investigation Activities. (Cited in Sec. 505.2(j))

[[Page 27]]

    (ii) AR 340-17, Release of Information and Records from Army Files. 
(Cited in Secs. 505.2(h) and 505.4(d))
    (iii) AR 430-21-8, The Army Privacy Program; System Notices and 
Exemption Rules for Civilian Personnel Functions. (Cited in 
Sec. 505.2(i))
    (iv) AR 380-380, Automated System Security. (Cited in Sec. 505.4(d) 
and (f))
    (2) Related publications. (A related publication is merely a source 
of additional information. The user does not have to read it to 
understand this regulation.)
    (i) DOD Directive 5400.11, DOD Privacy Program.
    (ii) DOD Regulation 5400.11-R, DOD Privacy Program.
    (iii) Treasury Fiscal Requirements Manual. This publication can be 
obtained from The Treasury Department, 15th and Pennsylvania Ave., NW, 
Washington, DC 20220
    (c) Explanation of abbreviations and terms. Abbreviations and 
special terms used in this regulation are explained in the glossary.
    (d) Responsibilities. (1) The Director of Information Systems for 
Command, Control, Communications, and Computers (DISC4) is responsible 
for issuing policy and guidance for the Army Privacy Program in 
consultation with the Army General Counsel.
    (2) The Commander, U.S. Army Information Systems Command is 
responsible for developing policy for and executing the Privacy Act 
Program under the policy and guidance of the DISC4.
    (3) Heads of Joint Service agencies or commands for which the Army 
is the Executive Agent, or otherwise has responsibility for providing 
fiscal, logistical, or administrative support, will adhere to the 
policies and procedures in this regulation.
    (4) Commander, Army and Air Force Exchange Service (AAFES), is 
responsible for the supervision and execution of the privacy program 
within that command pursuant to this regulation.
    (e) Policy. Army Policy concerning the privacy rights of individuals 
and the Army's responsibilities for compliance with operational 
requirements established by the Privacy Act are as follows:
    (1) Protect, as required by the Privacy Act of 1974 (5 U.S.C. 552a), 
as amended, the privacy of individuals from unwarranted intrusion. 
Individuals covered by this protection are living citizens of the United 
States and aliens lawfully admitted for permanent residence.
    (2) Collect only the personal information about an individual that 
is legally authorized and necessary to support Army operations. Disclose 
this information only as authorized by the Privacy Act and this 
regulation.
    (3) Keep only personal information that is timely, accurate, 
complete, and relevant to the purpose for which it was collected.
    (4) Safeguard personal information to prevent unauthorized use, 
access, disclosure, alteration, or destruction.
    (5) Let individuals know what records the Army keeps on them and let 
them review or get copies of these records, subject to exemptions 
authorized by law and approved by the Secretary of the Army. (See 
Sec. 505.5.)
    (6) Permit individuals to amend records about themselves contained 
in Army systems of records, which they can prove are factually in error, 
not up-to-date, not complete, or not relevant.
    (7) Allow individuals to ask for an administrative review or 
decisions that deny them access to or the right to amend their records.
    (8) Maintain only information about an individual that is relevant 
and necessary for Army purposes required to be accomplished by statute 
or Executive Order.
    (9) Act on all requests promptly, accurately, and fairly.
    (f) Authority. The Privacy Act of 1974 (5 U.S.C. 552a), as amended, 
is the statutory basis for the Army Privacy Program. With in the 
Department of Defense, the Act is implemented by DOD Directive 5400.11 
and DOD 5400.11-R. The Act Assigns--
    (1) Overall Government-wide responsibilities for implementation to 
the Office of Management and Budget.
    (2) Specific responsibilities to the Office of Personnel Management 
and the General Services Administration.
    (g) Access and Amendment Refusal Authority (AARA). Each Access and 
Amendment Refusal Authority (AARA) is responsible for action on requests 
for

[[Page 28]]

access to, or amendment of, records referred to them under this part. 
The officials listed below are the only AARA for records in their 
authority. Authority may be delegated to an officer or subordinate 
commander. All delegations must be in writing. If an AARA's delegate 
denies access or amendment, the delegate must clearly state that he or 
she is acting on behalf of the AARA and identify the AARA by name and 
position in the written response to the requester. Denial of access or 
amendment by an AARA's delegate must have appropriate legal review. 
Delegations will not be made below the colonel (06) or GS/GM-15 level. 
Such delegations must not slow Privacy actions. AARAs will send the 
names, offices, telephone numbers of heir delegates to the Director of 
Information Systems for Command, Control, Communications and Computers, 
Headquarters, Department of the Army, ATTN: SAIS-IDP, Washington, DC 
20310-0107; and the Department of the Army Privacy Review Board, Crystal 
Square 1, Suite 201, 1725 Jefferson Davis Highway, Arlington, VA 22202.
    (1) The Administrative Assistant to the Secretary of the Army (AASA) 
for records of the Secretariat and its serviced activities, to include 
the personnel records maintained by the General Officer Management 
Office, personnel records pertaining to Senior Executive Service 
personnel serviced by the Office of the Secretary of the Army (OSA), and 
Equal Employment Opportunity (EEO) records from offices serviced by the 
OSA. The AASA will also serve as AARA for those records requiring the 
personal attention of the Secretary of the Army.
    (2) The Inspector General (TIG) for TIG investigative records.
    (3) The president or executive secretary of boards, councils, and 
similar bodies established by the Department of the Army to consider 
personnel matters, including the Army Board of Correction of Military 
Appeals, for records under their purview.
    (4) The Deputy Chief of Staff for Personnel (DCSPER) for records of 
active and former non-appropriated fund employees (except those in the 
Army and Air Force Exchange Service), alcohol and drug abuse treatment 
records, behavioral science records, recruiting, Armed Services 
Vocational Aptitude Battery (ASVAB), equal opportunity, Junior Reserve 
Officers' Training Corps (ROTC), Senior ROTC Instructor, military 
academy cadet, selection, promotion, and reduction boards; special 
review boards; professional staff informational records; and entrance 
processing records (when records pertain to those not entering active 
duty).
    (5) The Deputy Chief of Staff for Operations and Plans (DCSOPS) for 
military police records and reports and prisoner confinement and 
correctional records.
    (6) Chief of Engineers (COE) for records pertaining to civil work 
(including litigation), military construction, engineer procurement, 
other engineering matters not under the purview of another AARA, 
ecology, and contractor qualifications.
    (7) The Surgeon General (TSG) for medical records, except properly 
part of the Official Personnel Folder (OPM/GOVT-1 system of records).
    (8) Chief of Chaplains (CCH) for ecclesiastical records.
    (9) The Judge Advocate General (TJAG) for legal records under TJAG 
responsibility.
    (10) Chief, National Guard Bureau (NGB) for personnel records of the 
Army National Guard.
    (11) Chief, Army Reserve (CAR) for personnel records of Army 
retired, separated and reserve military personnel members.
    (12) Commander, United States Army Material Command (USAMC) for 
records of Army contractor personnel of the Army Material Command.
    (13) Commander, United States Army Criminal Investigation Command 
(USACIDC) for criminal investigation reports and military police reports 
included therein.
    (14) Commander, United States Total Army Personnel Command (PERSCOM) 
for personnel and personnel related records of Army members on active 
duty and current Federal appropriated fund civilian employees. (Requests 
from former civilian employees to amend a record in any OPM system of 
records such as the Official Personnel Folder should be sent to the 
Office of

[[Page 29]]

Personnel Management, Assistant Director for Workforce Information, 
Compliance and Investigations Group, 1900 E Street, NW., Washington, DC 
20415-0001.
    (15) Commander, U.S. Army Community and Family Support Center 
(USACFSC) for records relating to morale, welfare and recreation 
activities; community life programs; family action programs, retired 
activities, club management, Army emergency relief, consumer protection, 
retiree survival benefits, and records dealing with Department of the 
Army relationships and social security veteran's affairs, United Service 
Organizations, U.S. Soldiers' and Airmen's home and American Red Cross.
    (16) Commander, U.S. Army Intelligence and Security Command (INSCOM) 
for intelligence, investigative and security records; foreign scientific 
and technological information; intelligence training, mapping and 
geodesy information; ground surveillance records; intelligence threat 
assessments; and missile intelligence data relating to tactical land 
warfare systems.
    (17) Commander, Army and Air Force Exchange Service (AAFES) for 
records pertaining to employees, patrons, and other matters which are 
the responsibility of the Exchange Service.
    (18) Commander, Military Traffic Management Command (MTMC) for 
transportation records.
    (19) Director of Army Safety for safety records.
    (20) Commander, U.S. Army Information Systems Command (USAISC) for 
records which do not fall within the functional area of another AARA.
    (h) Department of the Army Privacy Review Board. The Department of 
the Army Privacy Review Board acts on behalf of the Secretary of the 
Army in deciding appeals from refusal of the appropriate AARAs to amend 
records. Board membership is comprised of the AASA, the Commander, 
USAISC, Pentagon, and TJAG, or their representatives. The AARA may serve 
as a nonvoting member when the Board considers matters in the AARA's 
area of functional specialization. The Commander, USAISC, Pentagon, 
chairs the Board and provides the recording secretary.
    (i) Privacy Official. (1) Heads of Army Staff agencies and 
commanders of major Army commands and subordinate commands and 
activities will designate a privacy official who will serve as a staff 
adviser on privacy matters. This function will not be assigned below 
battalion level.
    (2) The privacy official will ensure that (i) requests are processed 
promptly and responsively, (ii) records subject to the Privacy Act in 
his/her command/agency are described properly by a published system 
notice, (iii) privacy statements are included on forms and 
questionnaires that seek personnel information from an individual, and 
(iv) procedures are in place to meet reporting requirements.

[50 FR 42164, Oct. 18, 1985, as amended at 58 FR 51012, Sept. 30, 1993]



Sec. 505.2  Individual rights of access and amendment.

    (a) Access under the Privacy Act. Upon a written or oral request, an 
individual or his/her designated agent or legal guardian will be granted 
access to a record pertaining to that individual, maintained in a system 
of records, unless the record is subject to an exemption and the system 
manager has invoked the exemption (see Sec. 505.5), or the record is 
information compiled in reasonable anticipation of a civil action or 
proceeding. The requester does not have to state a reason or otherwise 
justify the need to gain access. Nor can an individual be denied access 
solely because he/she refused to provide his/her Social Security Number 
unless the Social Security Number was required for access by statute or 
regulation adopted prior to January 1, 1975. The request should be 
submitted to the custodian of the record.
    (b) Notifying the individual. The custodian of the record will 
acknowledge requests for access within 10 work days of receipt. Records 
will be provided within 30 days, excluding Saturdays, Sundays, and legal 
public holidays.
    (c) Relationship between the Privacy Act and the Freedom of 
Information Act. A Privacy Act request for access to records should be 
processed also as a Freedom of Information Act request. If

[[Page 30]]

all or any portion of the requested material is to be denied, it must be 
considered under the substantive provisions of both the Privacy Act and 
the Freedom of Information Act. Any withholding of information must be 
justified by asserting a legally applicable exemption in each Act.
    (d) Functional requests. If an individual asks for his/her record 
and does not cite, or reasonably imply, either the Privacy Act or the 
Freedom of Information Act, and another prescribing directive authorizes 
release, the records should be released under that directive. Examples 
of functional requests are military members asking to see their Military 
Personnel Records Jacket, or civilian employees asking to see their 
Official Personnel Folder.
    (e) Medical records. If it is determined that releasing medical 
information to the data subject could have an adverse affect on the 
mental or physical health of that individual, the requester should be 
asked to name a physician to receive the record. The data subject's 
failure to designate a physician is not a denial under the Privacy Act 
and cannot be appealed.
    (f) Third party information. Third party information pertaining to 
the data subject may not be deleted from a record when the data subject 
requests access to the record unless there is an established exemption 
(see Sec. 505.5(d)). However, personal data such as SSN and home address 
of third parties in the data subject's record normally do not pertain to 
the data subject and therefore may be withheld. Information about the 
relationship between the data subject and the third party would normally 
be disclosed as pertaining to the data subject.
    (g) Referral of records. Requests for access to Army systems of 
records containing records that originated with other DOD Components or 
Federal agencies which claimed exemptions for them will be coordinated 
with or referred to the originator for release determination. The 
requester will be notified of the referral.
    (h) Fees. Requesters will be charged only for the reproduction of 
requested documents. Normally, there will be no charge for the first 
copy of a record provided to the individual whose record it is. 
Thereafter, fees will be computed as set forth in AR 340-17.
    (i) Denial of access. (1) The only officials authorized to deny a 
request from a data subject for records in a system of records 
pertaining to that individual are the appropriate Access and Amendment 
Refusal Authorities (see Sec. 505.1(f)), or the Secretary of the Army, 
acting through the General Counsel. Denial is appropriate only if the 
record:
    (i) Was compiled in reasonable anticipation of a civil action or 
proceeding, or
    (ii) Is properly exempted by the Secretary of the Army from the 
disclosure provisions of the Privacy Act (see Sec. 505.5), there is a 
legitimate governmental purpose for invoking the exemption, and it is 
not required to be disclosed under the Freedom of Information Act.
    (2) Requests for records recommended to be denied will be forwarded 
to the appropriate AARA within 5 work days of receipt, together with the 
request, disputed records, and justification for withholding. The 
requester will be notified of the referral.
    (3) Within the 30 work day period (see Sec. 505.2(b)), the AARA will 
give the following information to the requester in writing if the 
decision is to deny the request for access:
    (i) Official's name, position title, and business address;
    (ii) Date of the denial;
    (iii) Reasons for the denial, including citation of appropriate 
section(s) of the Privacy Act and this regulation;
    (iv) The opportunity for further review of the denial by the General 
Counsel, Office, Secretary of the Army, The Pentagon, Washington, DC 
20310, through the AARA within 60 calendar days. (For denials made by 
the Army when the record is maintained in one of OPM's government-wide 
systems of records, notices for which are described at appendix B, AR 
340-21-8, an individual's request for further review must be addressed 
to the Assistant Director for Agency Compliance and Evaluation, Office 
of Personnel Management, 1900 E Street NW., Washington, DC 20415-0001.)
    (j) Amendment of records. (1) Individuals may request the amendment 
of

[[Page 31]]

their records, in writing, when such records are believed to be 
inaccurate as a matter of fact rather than judgment, irrelevant, 
untimely, or incomplete.
    (2) The amendment procedures are not intended to permit challenge to 
a record that records an event that actually occurred nor are they 
designed to permit collateral attack upon that which has been the 
subject of a judicial or quasi-judicial action. Consideration of request 
for an amendment would be appropriate if it can be shown that 
circumstances leading up to the event that is recorded on the document 
were challenged through administrative procedures and found to be 
inaccurately described, that the document is not identical to the 
individual's copy, or that the document was not constructed in 
accordance with the applicable recordkeeping requirements prescribed. 
For example, the amendment provisions do not allow an individual to 
challenge the merits of an adverse action. However, if the form that 
documents the adverse action contains an error on the fact of the record 
(e.g., the individual's name is misspelled, an improper date of birth or 
SSN was recorded), the amendment procedures may be used to request 
correction of the record.
    (3) US Army Criminal Investigations Command reports of investigation 
(records in system notices AO501.08e Informant Register, AO508.11b 
Criminal Information Reports and Cross Index Card Files, and AO508.25a 
Index to Criminal Investigative Case Files) have been exempted from the 
amendment provisions of the Privacy Act. Requests to amend these reports 
will be considered under AR 195-2 by the Commander, US Army Criminal 
Investigations Command, action by the Commander, US Army Criminal 
Investigation Commander will constitute final action on behalf of the 
Secretary of the Army under that regulation.
    (4) Records accessioned into the National Archives are exempted from 
the Privacy Act provision allowing individuals to request amendment of 
records. Most provisions of the Privacy Act apply only to those systems 
of records which are under the legal control of the originating agency; 
e.g., an agency's current operating files or records stored at a Federal 
records center.
    (k) Procedures. (1) Requests to amend a record should be addressed 
to the custodian or system manager of that record. The request must 
reasonably describe the record to be amended and the changes sought 
(i.e., deletion, addition, amendment). The burden of proof rests with 
the requester; therefore, the alteration of evidence presented to 
courts, boards, and other official proceedings is not permitted. (An 
individual acting for the requester must supply a written consent signed 
by the requester.)
    (2) The custodian or system manager will acknowledge the request 
within 10 work days and make final response within 30 work days.
    (3) The record for which amendment is sought must be reviewed by the 
proper system manager or custodian for accuracy, relevance, timeliness, 
and completeness so as to assure fairness to the individual in any 
determination made about that individual on the basis of that record.
    (4) If the amendment is proper, the custodian or system manager will 
physically amend the record by adding or deleting information, or 
destroying the record or a portion of it, and notify the requester of 
such action.
    (5) If the amendment is not justified, the request and all relevant 
documents, including the reasons for not amending, will be forwarded to 
the appropriate AARA within 5 work days and the requester so notified.
    (6) The AARA, on the basis of the evidence, either will amend the 
record and notify the requester and the custodian of that decision, or 
will deny the request and inform the requester:
    (i) Of reasons for not amending; and
    (ii) Of his/her right to seek further review by the DA Privacy 
Review Board (through the AARA).
    (7) On receipt of an appeal from a denial to amend, the AARA will 
append any additional records or background information that 
substantiates the refusal or renders the case complete and, within 5 
work days of receipt, forward the appeal to the DA Privacy Review Board.
    (8) The DA Privacy Review Board, on behalf of the Secretary of the 
Army,

[[Page 32]]

will complete action on a request for further review within 30 work days 
of its receipt by the AARA. The General Counsel may authorize an 
additional 30 days when unusual circumstances and good cause so warrant. 
The Board may seek additional information, including the appellant's 
official file, if deemed relevant and necessary to deciding the appeal.
    (i) If the Board determines that amendment is justified, it will 
amend the record and notify the requester, the AARA, the custodian of 
the record, and any prior recipients of the record.
    (ii) If the Board denies the request, it will obtain the General 
Counsel's concurrence. Response to the appellant will include reasons 
for denial and the appellant's right to file a statement of disagreement 
with the Board's action and to seek judicial review of the Army's 
refusal to amend.
    (9) Statements of disagreement will be an integral part of the 
record to which it pertains so the fact that the record is disputed is 
apparent to anyone who may have access to, use of, or need to disclose 
from it. The disclosing authority may include a brief summary of the 
Board's reasons for not amending the disputed record. The summary will 
be limited to the reasons stated to the individual by the Board.
    (l) Privacy case files. Whenever an individual submits a Privacy Act 
request, a case file will be established; see system notice 
AO240.01DAAG. In no instance will the individual's request and Army 
actions thereon be included in the individual's personnel file. The case 
file will comprise the request for access/amendment, grants, refusals, 
coordination action, and related papers. This file will not be used to 
make any determinations about the individuals.



Sec. 505.3  Disclosure of personal information to other agencies and third parties.

    (a) Disclosure without consent. The Army is prohibited from 
disclosing a record from a system of records without obtaining the prior 
written consent of the data subject, except when disclosure is:
    (1) To those officers and employees of the Department of Defense who 
have a need for the record in the performance of their duties;
    (2) Required under the Freedom of Information Act (see Sec. 505.3(c) 
for information normally releasable);
    (3) Permitted by a routine use that has been published in the 
Federal Register;
    (4) To the Bureau of the Census for purposes of planning or carrying 
out a census or survey or related activity pursuant to title 13 of the 
United States Code;
    (5) To a recipient who has provided the Army with advance adequate 
written assurance that the record will be used solely as a statistical 
research or reporting record, and the record is to be transferred in a 
form that is not individually identifiable;
    (6) To the National Archives of the United States as a record that 
has sufficient historical or other value to warrant its continued 
preservation by the U.S. Government, or for determination of such value 
by the Administrator of the General Services Administration (GSA), or 
designee. (Records sent to Federal Records Centers for storage remain 
under Army control; these transfers are not disclosures and do not 
therefore need an accounting.)
    (7) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authorized 
by law, and if the head of the agency or instrumentality has made a 
written request to the Army element which maintains the record. The 
request must specify the particular portion desired and the law 
enforcement activity for which the record is sought;
    (8) To a person pursuant to a showing of compelling circumstances 
affecting the health and safety of an individual. Upon such disclosure, 
notification will be transmitted to the last known address of such 
individual;
    (9) To either House of Congress, or to a committee or subcommittee 
to the extent that the subject matter falls within the jurisdiction of 
the committee or subcommittee;
    (10) To the Comptroller General, or any authorized representative in 
the

[[Page 33]]

course of the performance of the duties of the General Accounting 
Office;
    (11) Pursuant to the order signed by a judge of a court of competent 
jurisidiction. (Reasonable efforts must be made to notify the individual 
if the legal process is a matter of public record); or
    (12) To a consumer reporting agency in accordance with section 3(d) 
of the Federal Claims Collection Act of 1966 (originally codified at 31 
U.S.C. 952(d); recodified at 31 U.S.C. 3711(f), the name, address, SSN, 
other information identifying the individual; amount, status, and 
history of the claim, and the agency or program under which the case 
arose may be disclosed in this instance.
    (b) Blanket routine use disclosures. In addition to the routine uses 
in each system notice, the following blanket routine uses apply to all 
records from systems of records maintained by the Army except those 
which state othewise.
    (1) Law enforcement. Relevant records maintained to carry out Army 
functions may be referred to Federal, State, local, or foreign law 
enforcement agencies if the record indicates a violation or potential 
violation of law. The agency to which the records are referred must be 
the appropriate agency charged with the responsibility of investigating 
or prosecuting the violation or charges, with enforcing or implementing 
the statute, rule, regulation, or order issued pursuant thereto.
    (2) Disclosure when requesting information. A record may be 
disclosed to a Federal, State, or local agency maintaining civil, 
criminal, or other relevant enforcement information or other pertinent 
information, such as current licenses, to obtain information relevant to 
an Army decision concerning the hiring or retention of an employee, the 
issuance of a security clearance, the letting of a contract, or the 
issuance of a license, grant, or other benefit.
    (3) Disclosure of requested information. If the information is 
relevant and necessary to the requesting agency's decision, a record may 
be disclosed to a Federal agency, in response to its request, in 
connection with the hiring or retention of an employee, the issuance of 
a security clearance, the reporting of an investigation of an employee, 
the letting of a contract, or the issuance of a license, grant, or other 
benefit by the requesting agency, to the extent that the information is 
relevant and necessary to the requesting agency's decision on the 
matter.
    (4) Congressional inquiries. Disclosure from a system of records 
maintained by the Army may be made to a Congressional office from the 
record of an individual in response to an inquiry from the Congressional 
office made at the request of that individual.
    (5) Private relief legislation. Relevant information in all systems 
of records of the Department of Defense published on or before August 
22, 1975, will be disclosed to the Office of Management and Budget (OMB) 
review of private relief legislation as set forth in OMB Circular A-19 
at any stage of the legislative coordination and clearance process.
    (6) Disclosures required by international agreements. A record may 
be disclosed to foreign law enforcement, security, investigatory, or 
administrative authorities. These disclosures are in compliance with 
requirements imposed by, or to claim rights conferred in, international 
agreements and arrangements including those regulating the stationing 
and status in foreign countries of DOD military and civilian personnel.
    (7) Disclosure to State and local taxing authorities. Any 
information normally contained in Internal Revenue Service Form W-2 
which is maintained in a record from a system of records of the Army may 
be disclosed to State and local taxing authorities with which the 
Secretary of the Treasury has entered into agreements under 5 U.S.C., 
sections 5516, 5517, and 5520 only to those State and local taxing 
authorities for which an employee or military member is or was subject 
to tax regardless of whether tax is or was withheld. This routine use 
complies with Treasury Fiscal Requirements Manual, Sec. 5060.
    (8) Disclosures to the Office of Personnel Management. A record may 
be disclosed to the Office of Personnel Management (OPM) concerning 
information on pay and leave, benefits, retirement deduction, and any 
other information necessary for the OPM to

[[Page 34]]

carry out its legally authorized government-wide personnel management 
functions and studies.
    (9) Disclosure to National Archives and Records Administration. A 
record may be disclosed to the National Archives and Records 
Administration in records management inspections conducted under 
authority of title 44 U.S.C., sections 2904 and 2906.
    (10) Disclosure to the Department of Justice for Litigation. A 
record may be disclosed as a routine use to any component of the 
Department of Justice, when--
    (i) The agency, or any component there of, or
    (ii) Any employee of the agency in his or her official capacity, or
    (iii) Any employee of the agency in his or her individual capacity 
where the Department of Justice has agreed to represent the employee, or
    (iv) The United States, where the agency determines that litigation 
is likely to affect the agency or any of its components, is a party to 
litigation or has an interest in such litigation, and the use of such 
records by the Department of Justice is deemed by the agency to be 
relevant and necessary to the litigation, provided, however, that in 
each case, the agency determines that disclosure of the records to the 
Department of Justice is a use of the information contained in the 
records that is compatible with the purpose for which it is collected.
    (11) Disclosure for Agency use in Litigation. A record may be 
disclosed in a proceeding before a court or adjudicative body before 
which the agency is authorized to appear, when--
    (i) The agency, or any component there of, or
    (ii) Any employee of the agency in his or her official capacity, or
    (iii) Any employee of the agency in his or her official capacity 
where the Department of Justice has agreed to represent the employee, or
    (iv) The United States, where the agency determines that litigation 
is likely to affect the agency or any of its components, is a party to 
litigation or has an interest in such litigation, and the agency 
determines that their use of such records is relevant and necessary to 
the litigation, provided; however, that in each case, the agency 
determines that disclosure of the records to the court or adjudicative 
body is a use of the information contained in the records that is 
compatible with the purpose for which it is collected.
    (c) Disclosure to third parties. Personal information which may be 
disclosed under the Freedom of Information Act:
    (1) On military personnel: Name, rank, date of rank, gross salary, 
present and past duty assignments, future assignments that are 
officially established, office or duty telephone number, source of 
commission, promotion sequence number, awards and decorations, military 
and civilian educational level, duty status at any given time.
    (2) On civilian employees: Name, present and past position titles, 
grades, salaries, duty stations that include office or duty telephone 
numbers. However, disclosure of this information will not be made where 
the information requested is a list of present or past position titles, 
grades, salaries, and/or duty stations and, as such, is:
    (i) Selected to constitute a clearly unwarranted invasion of 
personal privacy. For example, the nature of the request calls for a 
response that would reveal more about the employee than the five 
enumerated items;
    (ii) Would be protected from mandatory disclosure under an exemption 
of the Freedom of Information Act.
    (iii) In addition to the information in Sec. 505.3(c)(2) above, the 
following information may be made available to a prospective employer of 
a current or former Army employee: Tenure of employment, civil service 
status, length of service in the Army and the Government and, date and 
reason for separation shown on the Notification of Personnel Action, SF 
50.
    (d) Accounting of disclosure. (1) An accounting of disclosure is 
required whenever a record from an Army system of records is disclosed 
to someone other than the data subject, except when that record:
    (i) Is disclosed to officials within the Department of Defense who 
have a need for it in the performance of official business;
    (ii) Is required to be disclosed under the Freedom of Information 
Act.

[[Page 35]]

    (2) Since the characteristics of records maintained within the Army 
vary widely, no uniform method for keeping the disclosure of accounting 
is prescribed. For most paper records, the accounting may be affixed to 
the record being disclosed. It must be a written record and consist of:
    (i) Description of the record disclosed;
    (ii) Name, position title, and address of the person to whom 
disclosure was made;
    (iii) Date, method, and purpose of the disclosure; and
    (iv) Name and position title of the person making the disclosure.
    (3) Purpose of the accounting of disclosure is to enable an 
individual:
    (i) To ascertain those persons/agencies that have received 
information about the individual, and
    (ii) To provide a basis for informing recipients of subsequent 
amendments or statements of dispute concerning the record.
    (4) When an individual requests such an accounting, the system 
manager or designee shall respond within 10 work days and inform the 
individual of the items in Sec. 505.3(d)(2) above.
    (5) The only basis for not furnishing the data subject an accounting 
of disclosures are if disclosure was made for law enforcement purposes 
under 5 U.S.C. 552a(b)(7), or the disclosure was from a system of 
records for which an exemption from 5 U.S.C. 552a(c)(3) has been claimed 
(see appendix C to this part).

[50 FR 42164, Oct. 18, 1985, as amended at 58 FR 51013, Sept. 30, 1993]



Sec. 505.4  Record-keeping requirements under the Privacy Act.

    (a) Systems of records. (1) Notices of all Army systems of records 
are required by the Act to be published in the Federal Register. An 
example is at appendix A to this part. When new systems are established, 
or major changes occur in existing systems, which meet the criteria of 
OMB Guidelines summarized at Sec. 505.4(f)(2), advance notice is 
required to be furnished OMB and the Congress before the system or 
proposed changes become operational.
    (2) Uncirculated personal notes, papers and records which are 
retained at the author's discretion and over which the Army exercises no 
control or dominion are not considered Army records within the meaning 
of the Privacy Act. Individuals who maintain such notes must restrict 
their use of memory aids. Disclosure from personal notes, either 
intentional or through carelessness, remove the information from the 
category of memory aids and the notes then become subject to the 
provisions of the Act.
    (3) Only personal information as is relevant and necessary to 
accomplish a purpose or mission of the Army, required by Federal statue 
or Executive Order of the President, will be maintained in Army systems 
of records. Statutory authority, or regulatory authority to establish 
and maintain a system of records does not convey unlimited authority to 
collect and maintain all information which may be useful or convenient. 
The authority is limited to relevant and necessary information.
    (4) Except for statistical records, most records could be used to 
determine an individual's rights, benefits, or privileges. To ensure 
accuracy, personal information to be included in a system of records 
will be collected directly from the individual if possible. Collection 
of information from third parties should be limited to verifying 
information for security or employment suitability or obtaining 
performance data or opinion-type evaluations.
    (b) Privacy Act Statement. Whenever personal information is 
requested from an individual that will become part of system of records 
retreived by reference to the individual's names or other personal 
identifier, the individual will be furnished a Privacy Act Statement. 
This is to ensure that individuals know why the information is collected 
so they can make an informed decision on whether or not to furnish it. 
As a minimum, the Privacy Act Statement will include the following 
information in language that is explicit and easily understood and not 
so lengthy as to deter an individual from reading it:
    (1) Cite the specific statute or Executive Order, including a brief 
title or

[[Page 36]]

subject, that authorizes the Army to collect the personal information 
requested. Inform the individual whether or not a response is mandatory 
or voluntary, and any possible consequences of failing to respond.
    (2) Cite the principal purpose(s) for which the information will be 
used; and
    (3) Cite the probable routine uses for which the information may be 
used.

This may be a summary of information published in the applicable system 
notice. The above information normally should be printed on the form 
used to record the information. In certain instances, it may be printed 
in a public notice in a conspicuous location such as check-cashing 
facilities; however, if the individual requests a copy of its contents, 
it must be provided.
    (c) Social Security Number (SSN). Executive Order 9397 authorizes 
the Department of the Army to use the SSN as a system of identifying 
Army members and employees. Once a military member or civilian employee 
of the Department of the Army has disclosed his/her SSN for purposes of 
establishing personnel, financial, or medical records upon entry into 
Army service or employment, the SSN becomes his/her identification 
number. No other use of this number is authorized. Therefore, whether 
the SSN alone is requested from the individual, or the SSN together with 
other personal information, the Privacy Act Statement must make clear 
that disclosure of the number is voluntary. If the individual refuses to 
disclose his/her SSN, the Army activity must be prepared to identify the 
individual by alternate means.
    (d) Safeguarding personal information. (1) The Privacy Act requires 
establishment of appropriate administrative, technical, and physical 
safeguards to ensure the security and confidentialty of records and to 
protect against any threats or hazards to the subjects security or 
integrity which could result in substantial harm, embarrassment, 
inconvenience, or unfairness.
    (2) At each location, and for each system of records, an official 
will be designated to safeguard the information in that system. 
Consideration must be given to sensitivity of the data, need for 
accuracy and reliability in operations, general security of the area, 
cost of safeguards, etc. See AR 380-380.
    (3) Ordinarily, personal information must be afforded at least the 
protection required for information designated ``For Official Use Only'' 
(see Chapter IV, AR 340-17). Privacy Act data will be afforded 
reasonable safeguards to prevent inadvertent or unauthorized disclosure 
of record content during processing, storage, transmission, and 
disposal.
    (4) No comparisons of Army records systems with systems of other 
Federal or commerical agencies (known as ``matching'' or ``computer 
matching'' programs) will be accomplished without prior approval of the 
Assistant Chief of Staff for Information Managment (DAIM-RMS-S), Alex, 
VA 22331-0301.
    (e) First Amendment rights. No record describing how an individual 
exercises rights guaranteed by the First Amendment will be kept unless 
expressly authorized by Federal statue, by the individual about whom the 
record pertains, or unless pertinent to and within the scope of an 
authorized law enforcement activity. Exercise of these rights includes, 
but is not limited to, religious and political beliefs, freedom of 
speech and the press, and the right of assembly and to petition.
    (f) System notice. (1) The Army publishes in the Federal Register a 
notice describing each system of records for which it is responsible. A 
notice contains:
    (i) Name and location(s) of the records;
    (ii) Categories of individuals on whom records are maintained;
    (iii) Categories of records in the sytem;
    (iv) Authority (statutory or Executive Order) authorizing the 
system;
    (v) Purpose(s) of the system;
    (vi) Routine uses of the records, including the categories of users 
and the purposes of such uses;
    (vii) Policies and practices for storing, retrieving, accessing, 
retaining, and disposing of the records;
    (viii) Position title and business address of the responsible 
official;
    (ix) Procedures an individual must follow to learn if a system of 
records contains a record about the individual;

[[Page 37]]

    (x) Procedures an individual must follow to gain access to a record 
about that individual in a system of records, to contest contents, and 
to appeal initial determinations;
    (xi) Categories of sources of records in the system;
    (xii) Exemptions from the Privacy Act claimed for the system. (See 
example notice at appendix A to this part.)
    (2) New, or altered, systems which meet the requirements below, 
require a report to the Congress and the Office of Management and 
Budget. A new system is one for which no system notice is published in 
the Federal Register. An altered system is one that:
    (i) Increases or changes the number or types of individuals on whom 
records are kept so that it significantly alters the character and 
purpose of the system of records.
    (ii) Expands the types of categories of information maintained.
    (iii) Alters the manner in which records are organized, indexed, or 
retrieved so as to change the nature or scope of those records.
    (iv) Alters the purposes for which the information is used, or adds 
a routine use that is not compatible with the purpose for which the 
system is maintained.
    (v) Changes the equipment configuration on which the system is 
operated so as to create potential for either greater or easier access.
    (3) Report of a new or altered system must be sent to HQDA (DAIM-
RMS-S) at least 120 days before the system or changes become 
operational, and include a narrative statement and supporting 
documentation.
    (i) The narrative statement must contain the following items:
    (A) System identification and name:
    (B) Responsible official;
    (C) Purpose(s) of the system, or nature of changes proposed (if an 
altered system);
    (D) Authority for the system;
    (E) Number (or estimate) of individuals on whom records will be 
kept;
    (F) Information of First Amendment activities;
    (G) Measure to assure information accuracy;
    (H) Other measures to assure system security; (Automated systems 
require risk assessment under AR 380-380.)
    (I) Relations to State/local government activities. (See example at 
appendix B to this part.)
    (4) Supporting documentation consists of system notice for the 
proposed new or altered system, and proposed exemption rule, if 
applicable.
    (g) Reporting requirements. (1) The annual report required by the 
Act, as amended by Pub. L. 97-375, 96 Stat. 1821, focuses on two primary 
areas:
    (i) Information describing the exercise of individuals' rights of 
access to and amendment of records.
    (ii) Changes in, or additions to, systems of records.
    (2) Specific reporting requirements will be disseminated each year 
by The Assistant Chief of Staff for Information Management (DAIM-RMS-S) 
in a letter to reporting elements.
    (h) Rules of conduct. System managers will ensure that all 
personnel, including government contractors or their employees, who are 
involved in the design, development, operation, maintenance, or control 
of any system of records, are informed of all requirements to protect 
the privacy of individuals who are subjects of the records.
    (i) Judicial sanctions. The Privacy Act has both civil remedies and 
criminal penalties for violations of its provisions:
    (1) Civil remedies: An individual may file a civil suit against the 
Army if Army personnel fail to comply with the Privacy Act.
    (2) Criminal penalties: A member or employee of the Army may be 
guilty of a misdemeanor and fined not more than $5,000 for willfully:
    (i) Maintaining a system of records without first meeting the public 
notice requirements of publishing in the Federal Register;
    (ii) Disclosing individually identifiable personal information to 
one not entitled to have it;
    (iii) Asking for or getting another's record under false pretense.



Sec. 505.5  Exemptions.

    (a) Exempting systems of records. The Secretary of the Army may 
exempt Army systems of records from certain

[[Page 38]]

requirements of the Privacy Act. There are two kinds of exemptions: 
General and specific. The general exemption relieves systems of records 
from most requirements of the Act; the specific exemptions from only a 
few. See appendix C to this part.
    (b) General exemptions. Only Army activities actually engaged in the 
enforcement of criminal laws as their primary function may claim the 
general exemption. To qualify for this exemption, a system must consist 
of:
    (1) Information compiled to identify individual criminals and 
alleged criminals, which consists only of identifying data and arrest 
records; type and disposition of charges; sentencing, confinement, and 
release records; and parole and probation status;
    (2) Information compiled for the purpose of criminal investigation 
including efforts to prevent, reduce, or control crime and reports of 
informants and investigators associated with an identifiable individual; 
or
    (3) Reports identifiable to an individual, compile at any stage of 
the process of enforcement of the criminal laws, from arrest or 
indictment through release from supervision.
    (c) Specific exemptions. The Secretary of the Army has exempted all 
properly classified information and a few systems of records that have 
the following kinds of information, from certain parts of the Privacy 
Act. The Privacy Act exemption cite appears in parentheses after each 
category.
    (1) Classified information in every Army system of records. This 
exemption is not limited to the systems listed in Sec. 505.5(d). Before 
denying as individual access to classified information, the Access and 
Amendment Refusal Authority must make sure that it was properly 
classified under the standards of Executive Orders 11652, 12065, or 
12958 and that it must remain so in the interest of national defense of 
foreign policy. (5 U.S.C. 552a(k)(1)).
    (2) Investigatory data for law enforcement purposes (other than that 
claimed under the general exemption). However, if this information has 
been used to deny someone a right, privilege or benefit to which the 
individual is entitled by Federal law, it must be released, unless doing 
so would reveal the identity of a confidential source. (5 U.S.C. 
552a(k)(2)).
    (3) Records maintained in connection with providing protective 
services to the President of the United States or other individuals 
protected pursuant to Title 18 U.S.C., section 3056. (5 U.S.C. 
552a(k)(3)).
    (4) Statistical data required by statute and used only for 
statistical purposes and not to make decisions on the rights, benefits, 
or entitlements of individuals, except for census records which may be 
disclosed under Title 13 U.S.C., section 8. (5 U.S.C. 552a(k)(4)).
    (5) Data compiled to determine suitability, eligibility, or 
qualifications for Federal service, Federal contracts, or access to 
classified information. This information may be withheld only to the 
extent that disclosure would reveal the identify of a confidential 
source. (5 U.S.C. 552a(k)(5)).
    (6) Testing material used to determine if a person is qualified for 
appointment or promotion in the Federal service. This information may be 
withheld only if disclosure would compromise the objectivity or fairness 
of the examination process. (5 U.S.C. 552a(k)(6)).
    (7) Information to determine promotion potential in the Armed 
Forces. Information may be withheld, but only to the extent that 
disclosure would reveal the identity of a confidential source. (5 U.S.C. 
552a(k)(7)).
    (d) Procedures. When a system manager seeks an exemption for a 
system of records, the following information will be furnished to the 
Director of Information Systems for Command, Control, Communications and 
Computers, Washington, DC 20310-0107; applicable system notice, 
exemptions sought, and justification. After appropriate staffing and 
approval by the Secretary of the Army, a proposed rule will be published 
in the Federal Register, followed, by a final rule 60 days later. No 
exemption may be invoked until these steps have been completed.
    (e) Exempt Army records. The following records may be exempt from 
certain parts of the Privacy Act:
    (1) A0020-1aSAIG.
    (i) System name: Inspector General Investigative Files.

[[Page 39]]

    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(k)(2) or (k)(5) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(4)(G), (e)(4)(H), and (f).
    (iii) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
    (iv) Reasons: Selected portions and/or records in this system are 
compiled for the purposes of enforcing civil, criminal, or military law, 
including executive orders or regulations validly adopted pursuant to 
law. Granting individuals access to information collected and maintained 
in these files could interfere with enforcement proceedings; deprive a 
person of a right to fair trial or an impartial adjudication or be 
prejudicial to the conduct of administrative action affecting rights, 
benefits, or privileges of individuals, constitute an unwarranted 
invasion of personal privacy; disclose the identity of a confidential 
source; disclose nonroutine investigative techniques and procedures, or 
endanger the life or physical safety of law enforcement personnel; 
violate statutes which authorize or require certain information to be 
withheld from the public such as: Trade or financial information, 
technical data, National Security Agency information, or information 
relating to inventions. Exemption from access necessarily includes 
exemption from the other requirements.

    (2) A0020-1bSAIG.
    (i) System name: Inspector General Action Request/Assistance Files.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(k)(2) or (k)(5) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (d), (e)(4)(G), (e)(4)(H), and (f).
    (iii) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
    (iv) Reasons: Selected portions and/or records in this system are 
compiled for the purposes of enforcing civil, criminal, or military law, 
including Executive Orders or regulations validly adopted pursuant to 
law. Granting individuals access to information collected and maintained 
in these files could interfere with enforcement proceedings; deprive a 
person of a right to fair trail or an impartial ajudication or be 
prejudicial to the conduct of administrative action affecting rights, 
benefits, or privileges of individuals; constitute an unwarranted 
invasion of personnel privacy; disclose the identity of a confidential 
source; disclose nonroutine investigative techniques and procedures, or 
endanger the life or physical safety of law enforcement personnel; 
violate statutes which authorize or require certain information, to be 
withheld from the public such as: Trade or financial information, 
technical data, National Security Agency information, or information 
relating to inventions. Exemption from access necessarily includes 
exemption from the other requirements.

    (3)A0025-55SAIS.
    (i) System name: Request for Information Files.
    (ii) Exemption: (A) All portions of this system of records which 
fall within the scope of 5 U.S.C. 552a(j)(2) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(5), (e)(8), (f) and (g).
    (B) All portions of the system maintained by offices of Initial 
Denying Authorities which do not have a law enforcement mission and 
which fall within the scope of 5 U.S.C. 552a(k)(1) through (k)(7) may be 
exempt from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), 
(e)(4)(G), (e)(4)(H), and (f).
    (iii) Authority: 5 U.S.C. 552a(j)(2), and (k)(1) through (k)(7).
    (iv) Reasons: This system of records is maintained solely for the 
purpose of administering the Freedom of Information Act and processing 
routine requests for information. To insure an accurate and complete 
file on each case, it is sometimes necessary to include copies of 
records which have been the subject of a Freedom of Information Act 
request. This situation applies principally to cases in which an 
individual has been denied access and/or amendment of personal records 
under an exemption authorized by 5 U.S.C. 552. The same justification 
for the original denial would apply to denial of access to copies 
maintained in the Freedom of Information Act file. It should be 
emphasized that the majority of records in this system are available on 
request to the individual and

[[Page 40]]

that all records are used solely to process requests. This file is not 
used to make any other determinations on the rights, benefits or 
privileges of individuals.

    (4)A0027-1DAJA.
    (i) System name: General Legal Files.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(k)(1), (k)(2), (k)(5), (k)(6), and 
(k)(7) may be exempt from the provisions of 5 U.S.C. 552a(c)(3), (d), 
(e)(1), and (f).
    (iii) Authority: 5 U.S.C. 552a(k)(1), (k)(2), (k)(5), (k)(6), and 
(k)(7).
    (iv) Reasons: Various records from other exempted systems of records 
are sometimes submitted for legal review or other action. A copy of such 
records may be permanently incorporated into the General Legal Files 
system of records as evidence of the facts upon which a legal opinion or 
review was based. Exemption of the General Legal Files system of records 
is necessary in order to ensure that such records continue to receive 
the same protection afforded them by exemptions granted to the systems 
of records in which they were originally filed.

    (5) A0027-10aDAJA.
    (i) System name: Prosecutorial Files.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(j)(2) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(8), (f), and (g).
    (iii) Authority: 5 U.S.C. 552a(j)(2).
    (iv) Reasons: (A) From subsection (c)(4), (d), (e)(4)(G), (e)(4)(H), 
(f) and (g) because granting individuals access to information collected 
and maintained by this component relating to the enforcement of laws 
could interfere with proper investigations and the orderly 
administration of justice. Disclosure of this information could result 
in the concealment, alteration or destruction of evidence, the 
identification of offenders or alleged offenders, nature and disposition 
of charges; and jeopardize the safety and well-being of informants, 
witnesses and their families, and law enforcement personnel and their 
families. Disclosure of this information could also reveal and render 
ineffectual investigative techniques, sources and methods used by this 
component, and could result in the invasion of the privacy of 
individuals only incidentally related to an investigation. Exemption 
from access necessarily includes exemption from other requirements.
    (B) From subsection (c)(3) because the release of accounting of 
disclosure would place the subject of an investigation on notice that he 
is under investigation and provide him with significant information 
concerning the nature of the investigation, thus resulting in a serious 
impediment to law enforcement investigations.
    (C) From subsection (e)(2) because in a criminal or other law 
enforcement investigation, the requirement that information be collected 
to the greatest extent practicable from the subject individual would 
alert the subject as to the nature or existence of the investigation and 
thereby present a serious impediment to effective law enforcement.
    (D) From subsection (e)(3) because compliance would constitute a 
serious impediment to law enforcement in that it could compromise the 
existence of a confidential investigation or reveal the identity of 
witnesses or confidential informants.
    (E) From subsection (e)(8) because compliance with this provision 
would provide an impediment to law enforcement by interfering with the 
ability to issue warrants or subpoenas and by revealing investigative 
techniques, procedures or evidence.

    (6) A0027-10bDAJA.
    (i) System name: Courts-Martial Files.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(j)(2) may be exempt from the 
provisions of 5 U.S.C. 552a(d)(2), (d)(4), (e)(2), (e)(3), (e)(4)(H), 
and (g).
    (iii) Authority: 5 U.S.C. 552a(j)(2).
    (iv) Reasons: Courts-martial files are exempt because a large body 
of existing criminal law governs trials by courts-martial to the 
exclusion of the Privacy Act. The Congress recognized the judicial 
nature of courts-martial proceedings and exempt them from the 
Administrative Procedures Act by specifically excluding them from the 
definition of the term `agency' (Title 5 U.S.C. 551(1)(f)). Substantive 
and procedural law applicable in trials by court-

[[Page 41]]

martial is set forth in the Constitution, the Uniform Code of Military 
Justice (UCMJ) Manual for Courts-Martial, United States, 1969 (Revised 
edition), and the decisions of the U.S. Court of Military Appeals and 
Courts of Military Review. The right of the accused not to be compelled 
to be a witness against himself and the need to obtain accurate and 
reliable information with regard to criminal misconduct necessitate the 
collection of information from sources other than the individual 
accused. Advising the accused or any other witness of the authority for 
collection of the information, the purpose for which it is to be used, 
whether disclosure is voluntary or mandatory, and the effects on the 
individual of not providing the information would unnecesarily disrupt 
and confuse court-martial preceedings. It is the responsibility of the 
investigating officer or military judge to determine what information 
will be considered as evidence. In making the determination, the 
individual's rights are weighed against the accused's right to fair 
trial. The determination is final for the moment and the witness' 
failure to comply with the decision would delay the proceeding and may 
result in prosecution of the witness for wrongful refusal to testify. In 
a trial by court-martial, the accused has a unique opportunity to assure 
that the record is accurate, relevant, timely, and complete as it is 
made. He has the right to be present and the trial, to be represented by 
counsel at general and special courts-martial, and to consult with 
counsel in summary courts-martial, to review and challenge all 
information before it is introduced into evidence, to cross-examine all 
witnesses against him, to present evidence in his behalf and in general 
and special courts-martial, to review and comment upon the record for 
trial before it is authenticated. Procedures for correction of the 
record and controlled by paragraphs 82, 86, and 95, Manual for Courts-
Martial, 1969 (Revised edition). After completion of appellate review, 
the record may not be amended. Article 76 of the Uniform Code of 
Military Justice (10 U.S.C. 876) provides that the proceedings, findings 
and sentences of courts-martial as approved, reviewed or affirmed are 
final and conclusive and binding upon all departments, courts, agencies, 
and of the United States subject only to action upon a petition for new 
trial (Article 73, UCMJ), action by the Secretary concerned (Article 74, 
UCMJ), and the authority of the President.

    (7) A0190-5DAMO.
    (i) System name: Vehicle Registration System (VRS).
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(j)(2) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(8), (f), and (g).
    (iii) Authority: 5 U.S.C. 552a(j)(2).
    (iv) Reasons: (A) From subsections (c)(4), (d), (e)(4)(G), 
(e)(4)(H), (f) and (g) because granting individuals access to 
information collected and maintained by this component relating to the 
enforcement of laws could interfere with proper investigations and the 
orderly administration of justice. Disclosure of this information could 
result in the concealment, alteration or destruction of evidence, the 
identification of offenders or alleged offenders, nature and disposition 
of charges; and jeopardize the safety and well-being of informants, 
witnesses and their families, and law enforcement personnel and their 
families. Disclosure of this information could also reveal and render 
ineffectual investigative techniques, sources and methods used by this 
component, and could result in the invasion of the privacy of 
individuals only incidentally related to an investigation. Exemption 
from access necessarily includes exemption from other requirements.
    (B) From subsection (c)(3) because the release of accounting of 
disclosure would place the subject of an investigation on notice that he 
is under investigation and provide him with significant information 
concerning the nature of the investigation, thus resulting in a serious 
impediment to law enforcement investigations.
    (C) From subsection (e)(2) because in a criminal or other law 
enforcement investigation, the requirement that information be collected 
to the greatest extent practicable from the subject individual would 
alert the subject as to

[[Page 42]]

the nature or existence of the investigation and thereby present a 
serious impediment to effective law enforcement.
    (D) From subsection (e)(3) because compliance would constitute a 
serious impediment to law enforcement in that it could compromise the 
existence of a confidential investigation or reveal the identity of 
witnesses or confidential informants.
    (E) From subsection (e)(8) because compliance with this provision 
would provide an impediment to law enforcement by interfering with the 
ability to issue warrants or subpoenas and by revealing investigative 
techniques, procedures or evidence.

    (8) A0190-9DAMO.
    (i) System name: Absentee Case Files.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(j)(2) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(8), (f), and (g).
    (iii) Authority: 5 U.S.C. 552a(j)(2).
    (iv) Reasons: (A) From subsection (c)(4), (d), (e)(4)(G), (e)(4)(H), 
(f) and (g) because granting individuals access to information collected 
and maintained by this component relating to the enforcement of laws 
could interfere with proper investigations and the orderly 
administration of justice. Disclosure of this information could result 
in the concealment, alteration or destruction of evidence, the 
identification of offenders or alleged offenders, nature and disposition 
of charges; and jeopardize the safety and well-being of informants, 
witnesses and their families, and law enforcement personnel and their 
families. Disclosure of this information could also reveal and render 
ineffectual investigative techniques, sources and methods used by this 
component, and could result in the invasion of the privacy of 
individuals only incidentally related to an investigation. Exemption 
from access necessarily includes exemption from other requirements.
    (B) From subsection (c)(3) because the release of accounting of 
disclosure would place the subject of an investigation on notice that he 
is under investigation and provide him with significant information 
concerning the nature of the investigation, thus resulting in a serious 
impediment to law enforcement investigations.
    (C) From subsection (e)(2) because in a criminal or other law 
enforcement investigation, the requirement that information be collected 
to the greatest extent practicable from the subject individual would 
alert the subject as to the nature or existence of the investigation and 
thereby present a serious impediment to effective law enforcement.
    (D) From subsection (e)(3) because compliance would constitute a 
serious impediment to law enforcement in that it could compromise the 
existence of a confidential investigation or reveal the identity of 
witnesses or confidential informants.
    (E) From subsection (e)(8) because compliance with this provision 
would provide an impediment to law enforcement by interfering with the 
ability to issue warrants or subpoenas and by revealing investigative 
techniques, procedures or evidence.

    (9) A0190-14DAMO.
    (i) System name: Registration and Permit Files.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(k)(2) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3).
    (iii) Authority: 5 U.S.C. 552a(k)(2).
    (iv) Reasons: From subsection (c)(3) because the release of 
accounting of disclosures would place the subject of an investigation on 
notice that he or she is under investigation and provide him or her with 
significant information concerning the nature of the investigation thus 
resulting in a serious impediment to criminal law enforcement 
investigations, activities or the compromise of properly classified 
material.

    (10) A0190-30DAMO.
    (i) System name: Military Police Investigator Certification Files.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(k)(2), (k)(5), and (k)(7) may be 
exempt from the provisions of 5 U.S.C. 552a(d), (e)(4)(G), (e)(4)(H), 
and (f).
    (iii) Authority: 5 U.S.C. 552a(k)(2), (k)(5) and (k)(7).

[[Page 43]]

    (iv) Reasons: From subsections (d), (e)(4)(G), (e)(4)(H), and (f) 
because disclosure of portions of the information in this system of 
records would seriously impair selection and management of these 
uniquely functioning individuals; hamper the inclusion of comments, 
reports and evaluations concerning the performance, qualifications, 
character, actions, and propensities of the agency; and prematurely 
compromise investigations which either concern the conduct of the agent 
himself or herself, or investigations wherein he or she is integrally or 
only peripherally involved. Additionally, the exemption from access 
necessarily includes exemptions from the amendment and the agency 
procedures that would otherwise be required to process these types of 
requests.

    (11) A0190-40DAMO.
    (i) System name: Serious Incident Reporting Files.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(j)(2) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(8), (f), and (g).
    (iii) Authority: 5 U.S.C. 552a(j)(2).
    (iv) Reasons: (A) From subsection (c)(4), (d), (e)(4)(G), (e)(4)(H), 
(f) and (g) because granting individuals access to information collected 
and maintained by this component relating to the enforcement of laws 
could interfere with proper investigations and the orderly 
administration of justice. Disclosure of this information could result 
in the concealment, alteration or destruction of evidence, the 
identification of offenders or alleged offenders, nature and disposition 
of charges, and jeopardize the safety and well-being of informants, 
witnesses and their families, and law enforcement personnel and their 
families. Disclosure of this information could also reveal and render 
ineffectual investigative techniques, sources, and methods used by this 
component, and could result in the invasion of the privacy of 
individuals only incidentally related to an investigation. Exemption 
from access necessarily includes exemption from the other requirements.
    (B) From subsection (c)(3) because of the release of accounting of 
disclosure would place the subject of an investigation on notice that he 
is under investigation and provide him with significant information 
concerning the nature of the investigation, thus resulting in a serious 
impediment to law enforcement investigations.
    (C) From subsection (e)(2) because in a criminal or other law 
enforcement investigation, they require that information be collected to 
the greatest extent practicable from the subject individual would alert 
the subject as to the nature or existence of the investigation and 
thereby present a serious impediment to effective law enforcement.
    (D) From subsection (e)(3) because compliance would constitute a 
serious impediment to law enforcement in that it could compromise the 
existence of a confidential investigation or reveal the identity of 
witnesses or confidential informants.
    (E) From subsection (e)(8) because compliance with this provision 
would provide an impediment to law enforcement by interfering with the 
ability to issue warrants or subpoenas and be revealing investigative 
techniques, procedures or evidence.

    (12) A0190-45DAMO
    (i) System name: Offense Reporting System (ORS).
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(j)(2) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(8), (f), and (g).
    (iii) Authority: 5 U.S.C. 552a(j)(2).
    (iv) Reasons: (A) From subsection (c)(4), (d), (e)(4)(G), (e)(4)(H), 
(f) and (g) because granting individuals access to information collected 
and maintained by this component relating to the enforcement of laws 
could interfere with proper investigations and the orderly 
administration of justice. Disclosure of this information could result 
in the concealment, alteration or destruction of evidence, the 
identification of offenders or alleged offenders, nature and disposition 
of charges, and jeopardize the safety and well-being of informants, 
witnesses and their families, and law enforcement personnel and their 
families. Disclosure of this information could also reveal and render 
ineffectual investigative techniques, sources, and methods used by this 
component, and

[[Page 44]]

could result in the invasion of the privacy of individuals only 
incidentally related to an investigation. Exemption from access 
necessarily includes exemption from the other requirements.
    (B) From subsection (c)(3) because of the release of accounting of 
disclosure would place the subject of an investigation on notice that he 
is under investigation and provide him with significant information 
concerning the nature of the investigation, thus resulting in a serious 
impediment to law enforcement investigations.
    (C) From subsection (e)(2) because in a criminal or other law 
enforcement investigation, they require that information be collected to 
the greatest extent practicable from the subject individual would alert 
the subject as to the nature or existence of the investigation and 
thereby present a serious impediment to effective law enforcement.
    (D) From subsection (e)(3) because compliance would constitute a 
serious impediment to law enforcement in that it could compromise the 
existence of a confidential investigation or reveal the identity of 
witnesses or confidential informants.
    (E) From subsection (e)(8) because compliance with this provision 
would provide an impediment to law enforcement by interfering with the 
ability to issue warrants or subpoenas and be revealing investigative 
techniques, procedures or evidence.

    (13) System identifier:  A0190-47 DAMO.
    (i) System name:  Correctional Reporting System (CRS).
    (ii) Exemption.  Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principle function any 
activity pertaining to the enforcement of criminal laws. All portions of 
this system of records which fall within the scope of 5 U.S.C. 
552a(j)(2) may be exempt from the provisions of 5 U.S.C. 552a(c)(3), 
(c)(4), (d), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), 
(f), and (g).
    Consistent with the legislative purpose of the Privacy Act of 1974, 
the Department of the Army will grant access to nonexempt material in 
the records being maintained. Disclosure will be governed by the 
Department of the Army's Privacy Regulation, but will be limited to the 
extent that the identity of confidential sources will not be 
compromised; subjects of an investigation of an actual or potential 
criminal violation will not be alerted to the investigation; the 
physical safety of witnesses, informants and law enforcement personnel 
will not be endangered, the privacy of third parties will not be 
violated; and that the disclosure would not otherwise impede effective 
law enforcement. Whenever possible, information of the above nature will 
be deleted from the requested documents and the balance made available. 
The controlling principle behind this limited access is to allow 
disclosures except those indicated above. The decisions to release 
information from these systems will be made on a case-by-case basis 
necessary for effective law enforcement.
    (iii) Authority: 5 U.S.C. 552a(j)(2).
    (iv) Reasons:  (A) From subsection (c)(3) because the release of the 
disclosure accounting, or disclosures pursuant to the routine uses 
published for this system, would permit the subject of a criminal 
investigation or matter under investigation to obtain valuable 
information concerning the nature of that investigation which will 
present a serious impediment to law enforcement.
    (B) From subsection (c)(4) because an exemption is being claimed for 
subsection (d), this subsection will not be applicable.
    (C) From subsection (d) because access to the records contained in 
this system would inform the subject of a criminal investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
or apprehension, and would present a serious impediment to law 
enforcement.
    (D) From subsection (e)(3) would constitute a serious impediment to 
law enforcement in that it could compromise the existence of a 
confidential investigation, reveal the identity of confidential sources 
of information and endanger the life and physical safety of confidential 
informants.
    (E) From subsections (e)(4)(G) and (H) because this system of 
records is

[[Page 45]]

exempt from individual access pursuant to subsections (j)(2) of the 
Privacy Act of 1974.
    (F) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (G) From subsection (e)(5) because in the collection of information 
for law enforcement purposes it is impossible to determine in advance 
what information is accurate, relevant, timely, and complete. With the 
passage of time, seemingly irrelevant or untimely information may 
acquire new significance as further investigation brings new details to 
light and the accuracy of such information can only be determined in a 
court of law. The restrictions of subsection (e) (5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment reporting on investigations and impede the development of 
intelligence necessary for effective law enforcement.
    (H) From subsection (e)(8) because the individual notice 
requirements of subsection (e)(8) could present a serious impediment to 
law enforcement as this could interfere with the ability to issue search 
authorizations and could reveal investigative techniques and procedures.
    (I) From subsection (f) because this system of records has been 
exempted from the access provisions of subsection (d).
    (J) From subsection (g) because this system of records compiled for 
lawenforcement purposes and has been exempted from the access provisions 
of subsections (d) and (f).

    (14) A0195-2aUSACIDC.
    (i) System name: Source Register.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(j)(2) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), 
(e)(4)(G), (e)(5), (e)(8), (f), and (g).
    (iii) Authority: 5 U.S.C. 552a(j)(2).
    (iv) Reasons: (A) From subsection (c)(3) because release of 
accounting of disclosures would provide the informant with significant 
information concerning the nature of a particular investigation, the 
internal methods and techniques involved in criminal investigation, and 
the investigative agencies (state, local or foreign) involved in a 
particular case resulting in a serious compromise of the criminal law 
enforcement processes.
    (B) From subsection (c)(4), (d), (e)(4)(G), (e)(4)(H), (f), and (g) 
because disclosure of portions of the information in this system of 
records would seriously impair the prudent and efficient handling of 
these uniquely functioning individuals; hamper the inclusion of comments 
and evaluations concerning the performance qualification, character, 
identity, and propensities of the informant; and prematurely compromise 
criminal investigations which either concern the conduct of the 
informant himself or investigations wherein he/she is intergrally or 
only peripherally involved. Additionally, the exemption from access 
necessarily includes exemption from amendment, certain agency 
requirements relating to access and amendment of records and civil 
liability predicated upon agency compliance with specific provisions of 
the Privacy Act.
    (C) From subsection (d), (e)(4)(G), (e)(4)(H), and (f) are also 
necessary to protect the security of information properly classified in 
the interest of national defense and foreign policy.
    (D) From subsection (e)(1) because the nature of the criminal 
investigative function creates unique problems in prescribing what 
information concerning informants is relevant or necessary. Due to close 
liaison and existing relationships with other Federal, state, local and 
foreign law enforcement agencies, information about informants may be 
received which may relate to a case then under the investigative 
jurisdiction of another Government agency but it is necessary to 
maintain this information in order to provide leads for appropriate law 
enforcement purposes and to establish patterns of activity which may 
relate to the jurisdiction of both the USACIDC and other agencies. 
Additionally, the failure to maintain all known information about 
informants could affect the effective utilization of

[[Page 46]]

the individual and substantially increase the operational hazards 
incumbent in the employment of an informant in very compromising and 
sensitive situations.
    (E) From subsection (e)(2) because collecting information from the 
information would potentially thwart both the crminal investigtive 
process and the required management control over these individuals by 
appraising the informant of investigations or management actions 
concerning his involvement in criminal activity or with USACIDC 
personnel.
    (F) From subsection (e)(3) because supplying an informant with a 
form containing the information specified could result in the compromise 
of an investigation, tend to inhibit the cooperation of the informant, 
and render ineffectual investigative techniques and methods utilized by 
USACIDC in the performance of its criminal law enforcement duties.
    (G) From subsection (e)(5) because this requirement would unduly 
hamper the criminal investigative process due to type of records 
maintained an necessity for rapid information retrieval and 
dissemination. Also, in the collection of information about informants, 
it is impossible to determine what information is then accurate, 
relevant, timely and complete. With the passage of time, seemingly 
irrevelant or untimely information may acquire new significance as 
further investigation or contact brings new details to light. In the 
criminal investigative process, accuracy and relevance of information 
concerning informants can only be determined in a court of law. The 
restrictions imposed by subsection (e)(5) would restrict the ability of 
trained investigators to exercise their judgment in reporting 
information relating to informant's actions and would impede the 
development of criminal intelligence necessary for effective law 
enforcement.
    (H) From subsection (e)(8) because the notice requirements of this 
provision could present a serious impediment to criminal law enforcement 
by revealing investigative techniques, procedures, and the existence of 
confidential investigations.

    (15)A0195-2bUSACIDC.
    (i) System name: Criminal Investigation and Crime Laboratory Files.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(j)(2) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(5), (e)(8), (f), and (g).
    (iii) Authority: 5 U.S.C. 552(j)(2).
    (iv) Reasons: (A) From subsection (c)(3) because the release of 
accounting of disclosures would place the subject of an investigation on 
notice that he is under investigation and provide him with significant 
information concerning coordinated investigative effort and techniques 
and the nature of the investigation, resulting in a serious impediment 
to criminal law enforcement activities or the compromise of properly 
classified material.
    (B) From subsections (c)(4), (d), (e)(4)(G), (e)(4)(H), (f), and (g) 
because access might compromise on-going investigations, reveal 
classified information, investigatory techniques or the identity of 
confidential informants, or invade the privacy of persons who provide 
information in connection with a particular investigation. The exemption 
from access necessarily includes exemption from amendment, certain 
agency requirements relating to access and amendment of records, and 
civil liability predicated upon agency compliance with those specific 
provisions of the Privacy Act. The exemption from access necessarily 
includes exemption from other requirements.
    (C)From subsection (e)(1) because the nature of the investigative 
function creates unique problems in prescribed specific perimeters in a 
particular case as to what information is relevant or necessary. Also, 
due to close liaisons and working relationships with other Federal, 
state, local, and foreign law enforcement agencies, information may be 
received which may relate to a case then under the investigative 
jurisdiction of another Government agency but it is necessary to 
maintain this information in order to provide leads for appropriate law 
enforcement purposes and to establish patterns of activity which may 
relate to the jurisdiction of both the USACIDC and other agencies.

[[Page 47]]

    (D) From subsection (e)(2) because collecting information from the 
subject of criminal investigations would thwart the investigative 
process by placing the subject of the investigation on notice thereof.
    (E) From subsection (e)(3) because supplying an individual with a 
form containing the information specified could result in the compromise 
of an investigation, tend to inhibit the cooperation of the individual 
queried, and render ineffectual investigation techniques and methods 
utilized by USACIDC in the performance of their criminal law enforcement 
duties.
    (F) From subsection (e)(5) because this requirment would unduly 
hamper the criminal investigative process due to the great volume of 
records maintained and the necessity for rapid information retrieval and 
dissemination. Also, in the collection of information for law 
enforcement purposes, it is impossible to determine what information is 
then accurate, relevant, timely, and complete. With the passage of time, 
seemingly irrelevant or untimely information may acquire new 
significance as further investigation brings new details to light. In 
the criminal investigation process, accuracy and relevance of 
information can only be determine in a court of law. The restrictions 
imposed by subsection (e)(5) would restrict the ability of trained 
investigators to exercise their judgment in reporting on investigations 
and impede the development of criminal intelligence necessary for 
effective law enforcement.
    (G) From subsection (e)(8) because the notice requirements of this 
provision could present a serious impediment to criminal law enforcement 
by revealing investigative techniques, procedures, and the existence of 
confidential investigations.

    (16) A0195-6USACIDC.
    (i) System name: Criminal Investigation Accreditation and Polygraph 
Examiner Evaluation Files.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(k)(2), (k)(5), or (k)(7) may be exempt 
from the provisions of 5 U.S.C. 552a(d), (e)(1), (e)(4)(G), (e)(4)(H), 
and (f).
    (iii) Authority: 5 U.S.C. 552a(k)(2), (k)(5), and (k)(7).
    (iv) Reasons: (A) From subsections (d), (e)(4)(G), (e)(4)(H), and 
(f) because disclosure of portions of the information in this system of 
records would seriously impair the selection and management of these 
uniquely functioning individuals; hamper the inclusion of comments, 
reports and evaluations concerning the performance, qualifications, 
character, action and propensities of the agent; and prematurely 
compromise investigations with either concern the conduct of the agent 
himself or investigations wherein he or she is integrally or only 
peripherally involved. Additionally, the exemption from access 
necessarily includes exemptions from the amendment and the agency 
procedures which would otherwise be required to process these types of 
requests.
    (B) From subsection (e)(1) because the failure to maintain all known 
information about agents could affect the effective utilization of the 
individual and substantially increase the operational hazards incumbent 
in the employment of agents in very compromising and sensitive 
situations.

    (17) A0210-7DAMO.
    (i) System name: Expelled or Barred Person Files.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(j)(2) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(8), (f), and (g).
    (iii) Authority: 5 U.S.C. 552a(j)(2).
    (iv) Reasons: (A) From subsection (c)(4), (d), (e)(4)(G), (e)(4)(H), 
(f) and (g) because granting individuals access to information collected 
and maintained by this component relating to the enforcement of laws 
could interfere with proper investigations and the orderly 
administration of justice. Disclosure of this information could result 
in the concealment, alteration or destruction of evidence, the 
identification of offenders or alleged offenders, nature and disposition 
of charges, and jeopardize the safety and well-being of informants, 
witnesses and their families, and law enforcement personnel and their 
families. Disclosure of this information could also reveal and render 
ineffectual

[[Page 48]]

investigative techniques, sources, and methods used by this component, 
and could result in the invasion of the privacy of individuals only 
incidentally related to an investigation. Exemption from access 
necessarily includes exemption from the other requirements.
    (B) From subsection (c)(3) because of the release of accounting of 
disclosure would place the subject of an investigation on notice that he 
is under investigation and provide him with significant information 
concerning the nature of the investigation, thus resulting in a serious 
impediment to law enforcement investigations.
    (C) From subsection (e)(2) because in a criminal or other law 
enforcement investigation, they require that information be collected to 
the greatest extent practicable from the subject individual would alert 
the subject as to the nature or existence of the investigation and 
thereby present a serious impediment to effective law enforcement.
    (D) From subsection (e)(3) because compliance would constitute a 
serious impediment to law enforcement in that it could compromise the 
existence of a confidential investigation or reveal the identity of 
witnesses or confidential informants.
    (E) From subsection (e)(8) because compliance with this provision 
would provide an impediment to law enforcement by interfering with the 
ability to issue warrants or subpoenas and be revealing investigative 
techniques, procedures or evidence.

    (18) System identifier: A0025 JDIM
    (i) System name: HQDA Correspondence and Control/Central Files 
System.
    (ii) Exemptions: Documents within this system of records are 
generated by other elements of the Department of the Army or are 
received from other agencies and individuals. Because of the broad scope 
of the contents of this system of records, and since the introduction of 
documents is largely unregulatable, specific portions or documents that 
may require an exemption can not be predetermined. Therefore, and to the 
extent that such material is received and maintained, selected 
individual documents may be exempt.
    (A) Information specifically authorized to be classified under E.O. 
12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 
U.S.C. 552a(k)(1).
    (B) Investigatory material compiled for law enforcement purposes may 
be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is 
denied any right, privilege, or benefit for which he would otherwise be 
entitled by Federal law or for which he would otherwise be eligible, as 
a result of the maintenance of such information, the individual will be 
provided access to such information except to the extent that disclosure 
would reveal the identity of a confidential source.
    (C) Records maintained in connection with providing protective 
services to the President and other individuals under 18 U.S.C. 3506, 
may be exempt pursuant to 5 U.S.C. 552a(k)(3).
    (D) Records maintained solely for statistical research or program 
evaluation purposes and which are not used to make decisions on the 
rights, benefits, or entitlement of an individual except for census 
records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant 
to 5 U.S.C. 552a(k)(4).
    (E) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (F) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (G) Evaluation material used to determine potential for promotion in 
the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but 
only to the extent that the disclosure of such material would reveal the 
identity of a confidential source.
    (H) Portions of this system of records may be exempt pursuant to 5 
U.S.C. 552a (k)(1) through (k)(7) from subsections (c)(3), (d), (e)(1), 
(e)(4)(G) and (H), and (f).

[[Page 49]]

    (iii) Authority: 5 U.S.C. 552a(k)(1) through (k)(7).
    (iv) Reasons: (A) From subsection (c)(3) because the release of the 
disclosure accounting could alert the subject of an investigation of an 
actual or potential criminal, civil, or regulatory violation to the 
existence of the investigation and the fact that they are subjects of 
the investigation. It could permit the subject of an investigation or 
matter under investigation to obtain valuable information concerning the 
nature of that investigation which will present a serious impediment to 
law enforcement.
    (B) From subsection (d) because access to the records contained in 
this system would inform the subject of an investigation of the 
existence of that investigation, provide the subject of the 
investigation with information that might enable him to avoid detection 
of apprehension, and would present a serious impediment to law 
enforcement.
    (C) From subsection (e)(1) because in the course of criminal 
investigations information is often obtained concerning the violation of 
laws or civil obligations of others not relating to active case or 
matter. In the interest of effective law enforcement, it is necessary 
that this information be retained since it can aid in establishing 
patterns of activity and provide valuable leads for other agencies and 
future cases that may be brought.
    (D) From subsections (e)(4)(G) and (H) because this system of 
records is exempt from individual access pursuant to subsections (k)(2) 
of the Privacy Act of 1974.
    (E) From subsection (f) because this system of records has been 
exempted from the access provisions of subsection (d).

    (19) A0340-21SAIS.
    (i) System name: Privacy Case Files.
    (ii) Exemption: (A) All portions of this system of records which 
fall within the scope of 5 U.S.C. 552a(j)(2) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(5), (e)(8), (f), and (g).
    (B) All portions of this system maintained by the DA Privacy Review 
Board and those Access and Amendment Refusal Authorities which do not 
have a law enforcement mission and which fall within the scope of 5 
U.S.C. 552a(k)(1) through (k)(7) may be exempt from the provisions of 5 
U.S.C. 552a(c)(3)(d), (e)(1), (e)(4)(G), (e)(4)(H), and (f).
    (iii) Authority: 5 U.S.C. 552a(j)(2) and (k)(7).
    (iv) Reasons: This system of records is maintained solely for the 
purpose of administering the Privacy Act of 1974. To insure accurate and 
complete file on each case, it is sometimes necessary to include copies 
of records which have been the subject of a Privacy Act request. This 
situation applies principally to cases in which an individual has been 
denied access and/or amendment of personal records under an exemption 
authorized by 5 U.S.C. 552a. The same justification for the original 
denial would apply to a denial of access and/or amendment of copies 
maintained in the Privacy Act Case File. It should be emphasized that 
the majority of records in this system are available on request to the 
individual and that all records are used solely to administer Privacy 
Act requests. This file is not used to make any other determination on 
the rights, benefits or privileges of individuals.

    (20) [Reserved]

    (21) A0351-12DAPE.
    (i) System name: Applicants/Students, U.S. Military Academy Prep 
School.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(k)(5) and (k)(7) may be exempt from 
the following provision of 5 U.S.C. 552a(d).
    (iii) Authority: 5 U.S.C. 552a(k)(5) and (k)(7).
    (iv) Reasons: It is imperative that the confidential nature of 
evaluation material on individuals, furnished to the US Military Academy 
Preparatory School under an express promise of confidentiality, be 
maintained to ensure the candid presentation of information necessary in 
determinations involving admission to or retention at the United States 
Military Academy and suitability for commissioned military service.

    (22) A0351-17aUSMA.
    (i) System name: U.S. Military Academy Candidate Files.

[[Page 50]]

    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(k)(5), (k)(6), or (k)(7) may be exempt 
from the provisions of 5 U.S.C. 552a(d).
    (iii) Authority: 5 U.S.C. 552a(k)(5), (k)(6) and (k)(7).
    (iv) Reasons: (A) From subsection (d) because access might reveal 
investigatory and testing techniques. The exemption from access 
necessarily includes exemption from amendment, certain agency 
requirements relating to access and amendment of records, and civil 
liability predicated upon agency compliance with those specific 
provisions of the Privacy Act.
    (B) Exemption is necessary to protect the identity of individuals 
who furnished information to the United States Military Academy which is 
used in determining suitability, eligibility, or qualifications for 
military service and which was provided under an express promise of 
confidentiality.
    (C) Exemption is needed for the portion of records compiled within 
the Academy which pertain to testing or examination material used to 
rate individual qualifications, the disclosure of which would compromise 
the objectivity or fairness of the testing or examination process.
    (D) Exemption is required for evaluation material used by the 
Academy in determining potential for promotion in the Armed Services, to 
protect the identity of a source who furnished information to the 
Academy under an express promise of confidentiality.

    (23) A0351-17bUSMA.
    (i) System name: U.S. Military Academy Personnel Cadet Records.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(k)(5) or (k)(7) may be exempt from the 
provisions of 5 U.S.C. 552a(d).
    (iii) Authority: 5 U.S.C. 552a(k)(5) and (k)(7).
    (iv) Reasons: It is imperative that the confidential nature of 
evaluation and investigatory material on candidates, cadets, and 
graduates, furnished to the United States Military Academy under promise 
of confidentiality be maintained to insure the candid presentation of 
information necessary in determinations involving admissions to the 
Military Academy and suitability for commissioned service and future 
promotion.

    (24) A0380-13DAMO.
    (i) System name: Local Criminal Intelligence Files.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(j)(2) may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(8), (f), and (g).
    (iii) Authority: 5 U.S.C. 552a(j)(2).
    (iv) Reasons: (A) From subsections (e)(4)(G), (e)(4)(H), (f), and 
(g) because granting individuals access to information collected and 
maintained by this component relating to the enforcement of laws could 
interfere with proper investigations and the orderly administration of 
justice. Disclosure of this information could result in the concealment, 
alteration or destruction of evidence, the identification of offenders 
or alleged offenders, nature and disposition of charges; and jeopardize 
the safety and well-being of informants, witnesses and their families, 
and law enforcement personnel and their families. Disclosure of this 
information could also reveal and render ineffectual investigative 
techniques, sources and methods used by this component and could result 
in the invasion of the privacy of individuals only incidentally related 
to an investigation. Exemption from access necessarily includes 
exemption from the other requirements.
    (B) From subsection (c)(3) because the release of accounting of 
disclosure would place the subject of an investigation on notice that he 
is under investigation and provide him with significant information 
concerning the nature of the investigation, thus resulting in a serious 
impediment to law enforcement investigations.
    (C) From subsection (e)(2) because, in a criminal or other law 
enforcement investigation, the requirement that information be collected 
to the greatest extent practicable from the subject individual would 
alert the subject as to the nature or existence of the investigation and 
thereby present a serious impediment to effective law enforcement.
    (D) From subsection (e)(3) because compliance would constitute a 
serious

[[Page 51]]

impediment to law enforcement in that it could compromise the existence 
of a confidential investigation or reveal the identity of witnesses or 
confidential informants.
    (E) From subsection (e)(8) because compliance with this provision 
would provide an impediment to law enforcement by interfering with the 
ability to issue warrants or subpoenas and by revealing investigative 
techniques, procedures or evidence.

    (25) A0380-67DAMI.
    (i) System name: Personnel Security Clearance Information Files.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(k)(1), (k)(2), or (k)(5) may be exempt 
from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), 
(e)(4)(H), and (e)(4)(I).
    (iii) Authority: 5 U.S.C. 552a(k)(1), (k)(2), or (k)(5).
    (iv) Reasons: The material contained in this record system contains 
data concerning sensitive sources and operational methods whose 
dissemination must be strictly controlled because of national security 
intelligence considerations. Disclosure of documents or the disclosure 
accounting record may compromise the effectiveness of the operation, and 
negate specialized techniques used to support intelligence or criminal 
investigative programs, or otherwise interfere with the orderly conduct 
of intelligence operations or criminal investigations.

    (26) A0381-20bDAMI.
    (i) System name: Counterintelligence/Security Files.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5) may be 
exempt from the provisions of 5 U.S.C. 552a(c)(3), (d)(1) through 
(d)(5), (e)(1), (e)(4)(G), (e)(4)(H), and (e)(4)(I), and (f).
    (iii) Authority: 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5).
    (iv) Reasons: (A) From subsection (c)(3) because disclosing the 
agencies to which information from this system has been released could 
inform the subject of an investigation of an actual or potential 
criminal violation, or intelligence operation or investigation; or the 
existence of that investigation or operation; of the nature and scope of 
the information and evidence obtained as to his/her activities or of the 
identify of confidential sources, witnesses, and intelligence personnel 
and could provide information to enable the subject to avoid detection 
or apprehension. Granting access to such information could seriously 
impede or compromise an investigation; endanger the physical safety of 
confidential sources, witnesses, intelligence personnel, and their 
families; lead to the improper influencing of witnesses; the destruction 
of evidence or the fabrication of testimony and disclose investigative 
techniques and procedures. In addition, granting access to such 
information could disclose classified and sensitive sources, 
information, and operational methods and could constitute an unwarranted 
invasion of the personal privacy of others.
    (B) From subsection (d)(1) through (d)(5) because granting access to 
records in this system of records could inform the subject of a 
counterintelligence operation or investigation of an actual or potential 
criminal violation or the existence of that operation or investigation; 
of the nature and scope of the information and evidence obtained as to 
his/her activities; or of the identity of confidential sources, 
witnesses and intelligence personnel and could provide information to 
enable the subject to avoid detection or apprehension. Granting access 
to such information could seriously impede or compromise an operation or 
investigation; endanger the physical safety of confidential sources, 
witnesses, intelligence personnel and their families; lead to the 
improper influencing of witnesses; the destruction of evidence or the 
fabrication of testimony and disclose investigative techniques and 
procedures. In addition, the agency is required to protect the 
confidentiality of sources who furnished information to the Government 
under an expressed promise of confidentiality or, prior to September 27, 
1975, under an implied promise that the identity of the source would be 
held in confidence. This confidentiality is needed to maintain the 
Government's continued access to information from persons who otherwise 
might refuse to give it.

[[Page 52]]

    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of specific information in the early 
stages of an investigation or operation. Relevance and necessity are 
often questions of judgement and timing, an it is only after the 
information is evaluated that the relevance and necessity of such 
information can be established. In addition, during the course of the 
investigation or operation, the investigator may obtain information 
which is incidental to the main purpose of the investigative 
jurisdiction of another agency. Such information cannot readily be 
segregated. Furthermore, during the course of the investigation or 
operation, the investigator may obtain information concerning violations 
of laws other than those which are within the scope of his/her 
jurisdiction. In the interest of effective intelligence operations and 
law enforcement, military intelligence agents should retain information, 
since it an aid in establishing patterns of criminal or intelligence 
activity and provide valuable leads for other law enforcement or 
intelligence agencies.
    (D) From subsection (e)(4)(G), (e)(4)(H), and (f) because this 
system or records is being exempt from subsections (d) of the Act, 
concerning access to records. These requirements are inapplicable to the 
extent that this system of records will be exempt from subsections 
(d)(1) through (d)(5) of the Act. Although the system would be exempt 
from these requirements, the Deputy Chief of Staff for Intelligence has 
published information concerning its notification, access, and contest 
procedures because under certain circumstances, the Deputy Chief of 
Staff for Intelligence could decide it is appropriate for an individual 
to have access to all or a portion os his/her records in this system of 
records.
    (E) From subsection (e)(4)(I) because it is necessary to protect the 
confidentiality of the sources of information, to protect the privacy 
and physical safety of confidential sources and witnesses and to avoid 
the disclosure of investigative techniques and procedures. Although the 
system will be exempt from this requirement, the Deputy Chief of Staff 
for Intelligence has published such a notice in broad, generic terms.

    (27) A0381-100aDAMI.
    (i) System name: Intelligence/Counterintelligence Source Files.
    (ii) Exemption: All portions of this system of records that fall 
within the scope of 5 U.S.C. 552a(k)(1), (k)(2), or (k)(5) may be exempt 
from the provisions of 5 U.S.C. 552a(c)(3), (d)(1) through (d)(5), 
(e)(1), (e)(4)(G), (e)(4)(H), and (e)(4)(I), and (f).
    (iii) Authority: 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5).
    (iv) Reasons: (A) From subsection (c)(3)because disclosing the 
agencies to which information from this system has been released could 
reveal the subject's involvement in a sensitive intelligence or 
counterintelligence operation or investigation of an actual or potential 
criminal violation, or intelligence operation or investigation; or the 
existence of that investigation or operation. Granting access to such 
information could seriously impede or compromise an investigation or 
operation; endanger the physical safety of participants and their 
families, confidential sources, witnesses, intelligence personnel, and 
their families; and lead to the improper influencing of witnesses; the 
destruction of evidence or the fabrication of testimony and disclose 
investigative techniques and procedures.
    (B) From subsection (d)(1) through (d)(5) because granting access to 
records could inform the subject of an intelligence or 
counterintelligence operation or investigation of an actual or potential 
criminal violation or the existence of that operation or investigation; 
or the nature and scope of the information and evidence obtained, or of 
the identity of confidential sources, witnesses and intelligence 
personnel. Granting access to such information could seriously impede or 
compromise an operation or investigation; endanger the physical safety 
of confidential sources, witnesses, intelligence personnel and their 
families; lead to the improper influencing of witnesses; the destruction 
of evidence or the fabrication of testimony; disclose investigative 
techniques and procedures; invade the privacy of those individuals 
involved in intelligence programs and

[[Page 53]]

their families; compromise and thus negate specialized techniques used 
to support intelligence programs; and interfere with and negate the 
orderly conduct of intelligence and counterintelligence operations and 
investigations. In addition, the agency is required to protect the 
confidentiality of sources who furnished information to the Government 
under an expressed promise of confidentiality or, prior to September 27, 
1975, under an implied promise that the identity of the source would be 
held in confidence. This confidentiality is needed to maintain the 
Government's continued access to information from persons who otherwise 
might refuse to give it.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of specific information in the early 
stages of an investigation or operation. Relevance and necessity are 
often questions of judgment and timing, and it is only after the 
information is evaluated that the relevance and necessity of such 
information can be established. In addition, during the course of the 
investigation or operation, the investigator or operative may obtain 
information which is incidental to the main purpose of the investigative 
jurisdiction of another agency. Such information cannot readily be 
segregated. Furthermore, during the course of the investigation or 
operation, the investigator may obtain information concerning violations 
of law other than those which are within the scope of his/her 
jurisdiction. In the interest of effective intelligence operations and 
law enforcement, military intelligence agents should retain information, 
since it is an aid in establishing patterns of criminal or intelligence 
activity and provides valuable leads for other law enforcement or 
intelligence agencies.
    (D) From subsection (e)(4)(G), (e)(4)(H), and (f) because this 
system of records is being exempt from subsection (d) of the Act 
concerning access to records. These requirements are inapplicable to the 
extent that this system of records will be exempt from subsections 
(d)(1) through (d)(5) of the Act. Although the system would be exempt 
from these requirements, the Deputy Chief of Staff for Intelligence has 
published information concerning its notification, access, and contest 
procedures because under certain circumstances, the Deputy Chief of 
staff for Intelligence could decide it is appropriate for an individual 
to have access to all or a portion of his/her records in this system of 
records.
    (E) From subsection (e)(4)(I) because it is necessary to protect the 
confidentiality of sources of information, to protect the privacy and 
physical safety of participants and their families, confidential 
sources, and witnesses and to avoid the disclosure of specialized 
techniques and procedures. Although the system will be exempt from this 
requirement, the Deputy Chief of Staff for Intelligence has published 
such a notice in broad generic terms.

    (28) A0381-100bDAMI
    (i) System name: Technical Surveillance Index.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5) may be 
exempt from the provisions of 5 U.S.C. 552a(c)(3), (d)(1) through 
(d)(5), (e)(1), (e)(4)(G), (e)(4)(H), and (e)(4)(I).
    (iii) Authority: 5 U.S.C. 552a(k)(1), (k)(2) or (k)(5).
    (iv) Reasons: (A) From subsection (c)(3) because disclosing the 
identities of agencies to which information from this system has been 
released could inform the subject of an investigation of an actual or 
potential criminal violation or intelligence operation; of the existence 
of that investigation or operation; of the nature and scope of the 
information and evidence obtained as to his/her activities or of the 
identify of confidential sources, witnesses, and intelligence or law 
enforcement personnel and could provide information to enable the 
subject to avoid detection or apprehension. Granting access to such 
information could seriously impede or compromise an investigation; 
endanger the physical safety of confidential sources, witnesses, 
intelligence or law enforcement personnel, and their families; lead to 
the improper influencing of witnesses; the destruction of evidence or 
the fabrication of testimony and disclose investigative techniques and 
procedures. In addition, granting access to such information

[[Page 54]]

could disclose classified and sensitive sources and operational methods 
and could constitute an unwarranted invasion of the personal privacy of 
others.
    (B) From subsection (d)(1) through (d)(5) because granting access to 
records in this system of records could inform the subject of an 
investigation of an actual or potential criminal violation; of the 
existence of that investigation; of the nature and scope of the 
information and evidence obtained as to his/her activities; or of the 
identity of confidential sources, witnesses and intelligence or law 
enforcement personnel and could provide information to enable the 
subject to avoid detection or apprehension. Granting access to such 
information could seriously impede or compromise an investigation; 
endanger the physical safety of confidential sources, witnesses, 
intelligence or law enforcement personnel and their families; lead to 
the improper influencing of witnesses; the destruction of evidence or 
the fabrication of testimony and disclose investigative techniques and 
procedures. In addition, granting access to such information could 
disclose classified, sensitive sources and operational methods and could 
constitute an unwarranted invasion of the personal privacy of others.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of specific information in the early 
stages of an investigation or operation. Relevance and necessity are 
often questions of judgment and timing, and it is only after the 
information is evaluated that the relevance and necessity of such 
information can be established. In addition, during the course of the 
investigation or operation, the investigator may obtain information 
which is incidental to the main purpose of the investigative 
jurisdiction of another agency. Such information cannot readily be 
segregated. Furthermore, during the course of the investigation or 
operation, the investigator may obtain information concerning violation 
of laws other than those which are within the scope of his/her 
jurisdiction. In the interest of effective intelligence operations and 
law enforcement, criminal law enforcement investigators and military 
intelligence agents should retain this information, since it can aid in 
establishing patterns of criminal or intelligence activity and can 
provide valuable leads for other law enforcement or intelligence 
agencies.
    (D) From subsections (e)(4)(G) and (e)(4)(H) because this system of 
records is being exempt from subsections (d) of the Act, concerning 
access to records, these requirements are inapplicable to the extent 
that this system of records will be exempt from subsections (d)(1) 
through (d)(5) of the Act. Although the system would be exempt from 
these requirements, the Deputy Chief of Staff for Intelligence and the 
U.S. Army Criminal Investigations Command have published information 
concerning its notification, access, and contest procedures for their 
respective areas because, under certain circumstances, the Deputy Chief 
of Staff for Intelligence or the U.S. Army Criminal Investigations 
Command could decide it is appropriate for an individual to have access 
to all or a portion of his/her records in this system of records.
    (E) From subsection (e)(4)(I) because it is necessary to protect the 
confidentiality of the sources of information, to protect the privacy 
and physical safety of confidential sources and witnesses and to avoid 
the disclosure of investigative techniques and procedures. Although the 
system will be exempt from this requirement, the Deputy Chief of Staff 
for Intelligence and the U.S. Army Criminal Investigations Command have 
published such a notice in broad, generic terms.

    (29) A0601-141DASG.
    (i) System name: Army Medical Procurement Applicant Files.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(k)(5) may be exempt from the 
provisions of 5 U.S.C. 552a(d).
    (iii) Authority: 5 U.S.C. 552a(k)(5).
    (iv) Reasons: It is imperative that the confidential nature of 
evaluations and investigatory material on applicants applying for 
enlistment furnished to the US Army Recruiting Command under an express 
promise of confidentiality, be maintained to insure the candid 
presentation of information

[[Page 55]]

necessary in determinations of enlistment and suitability for enlistment 
into the United States Army.

    (30) A0601-210aUSAREC.
    (i) System name: Enlisted Eligibility Files.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(k)(5) may be exempt from the 
provisions of 5 U.S.C. 552a(d).
    (iii) Authority: 5 U.S.C. 552a(k)(5).
    (iv) Reasons: It is imperative that the confidential nature of 
evaluations and investigatory material on applicants applying for 
enlistment furnished to the US Army Recruiting Command under an express 
promise of confidentiality, be maintained to insure the candid 
presentation of information necessary in determinations of enlistment 
and suitability for enlistment into the United States Army.

    (31) A0601-222USMEPCOM.
    (i) System name: ASVAB Student Test Scoring and Reporting System.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(k)(6) may be exempt from the 
provisions of 5 U.S.C. 552a(d).
    (iii) Authority: 5 U.S.C. 552a(k)(6).
    (iv) Reasons: An exemption is required for those portions of the 
Skill Qualification Test system pertaining to individual item responses 
and scoring keys to prelude compromise of the test and to insure 
fairness and objectivity of the evaluation system.

    (32) A0608-18DASG.
    (i) System name: Family Advocacy Case Management.
    (ii) Exemption: All portions of this system of records which fall 
within the scope of 5 U.S.C. 552a(k)(2) and (k)(5) may be exempt from 
the provisions of 5 U.S.C. 552a(d).
    (iii) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
    (iv) Reasons: Exemptions are needed in order to encourage persons 
having knowledge of abusive or neglectful acts toward children to report 
such information and to protect such sources from embarrassment or 
recriminations as well as to protect their right to privacy. It is 
essential that the identities of all individuals who furnish information 
under an express promise of confidentiality be protected. In the case of 
spouse abuse, it is important to protect the privacy of spouses seeking 
treatment. Additionally, granting individuals access to information 
relating to criminal and civil law enforcement could interfere with on-
going investigations and the orderly administration of justice in that 
it could result in the concealment, alteration, destruction, or 
fabrication of information, could hamper the identification of offenders 
or alleged offenders, and the disposition of charges, and could 
jeopardize the safety and well-being of parents, children, and abused 
spouses.

    (33) A0614-115DAMI.
    (i) System name: Department of the Army Operational Support 
Activities.
    (ii) Exemption: All portions of this system of records that fall 
within the scope of 5 U.S.C. 552a(k)(1), (k)(2), or (k)(5) may be exempt 
from the provisions of 5 U.S.C. 552a(c)(3), (d)(1) through (d)(5), 
(e)(1), (e)(4)(G), (e)(4)(H), and (e)(4)(I), and (f).
    (iii) Authority: 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5).
    (iv) Reasons: (A) From subsection (c)(3)because disclosing the 
agencies to which information from this system has been released could 
reveal the subject's involvement in a sensitive intelligence or 
counterintelligence operation or investigation of an actual or potential 
criminal violation, or intelligence operation or investigation; or the 
existence of that investigation or operation. Granting access to such 
information could seriously impede or compromise an investigation or 
operation; endanger the physical safety of participants and their 
families, confidential sources, witnesses, intelligence personnel, and 
their families; and lead to the improper influencing of witnesses; the 
destruction of evidence or the fabrication of testimony and disclose 
investigative techniques and procedures.
    (B) From subsection (d)(1) through (d)(5) because granting access to 
records could inform the subject of an intelligence or 
counterintelligence operation or investigation of an actual or potential 
criminal violation or the existence of that operation or investigation; 
of the nature and scope of the information and evidence obtained, or of

[[Page 56]]

the identity of confidential sources, witnesses and intelligence 
personnel. Granting access to such information could seriously impede or 
compromise an operation or investigation; endanger the physical safety 
of confidential sources, witnesses, intelligence personnel and their 
families; lead to the improper influencing of witnesses; the destruction 
of evidence or the fabrication of testimony; disclose investigative 
techniques and procedures; invade the privacy of those individuals 
involved in intelligence programs and their families; compromise and 
thus negate specialized techniques used to support intelligence 
programs; and interfere with and negate the orderly conduct of 
intelligence and counterintelligence operations and investigations. In 
addition, the agency is required to protect the confidentiality of 
sources who furnished information to the Government under an expressed 
promise of confidentiality or, prior to September 27, 1975, under an 
implied promise that the identity of the source would be held in 
confidence. This confidentiality is needed to maintain the Government's 
continued access to information from persons who otherwise might refuse 
to give it.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance of specific information in the early stages of an 
investigation or operation. Relevance and necessity are often questions 
of judgment and timing, and it is only after the information is 
evaluated that the relevance and necessity of such information can be 
established. In addition, during the course of the investigation or 
operation, the investigator or operative may obtain information which is 
incidental to the main purpose of the investigative jurisdiction of 
another agency. Such information cannot readily be segregated. 
Furthermore, during the course of the investigation or operation, the 
investigator may obtain information concerning violations of law other 
than those which are within the scope of his/her jurisdiction. In the 
interest of effective intelligence operations and law enforcement, 
military intelligence agents should retain information, since it is an 
aid in establishing patterns of criminal or intelligence activity and 
provides valuable leads for other law enforcement or intelligence 
agencies.
    (D) From subsection (e)(4)(G), (e)(4)(H), and (f) because this 
system or records is being exempt from subsections (d) of the Act, 
concerning access to records. These requirements are inapplicable to the 
extent that this system of records will be exempt from subsections 
(d)(1) through (d)(5) of the Act. Although the system would be exempt 
from these requirements, the Deputy Chief of Staff for Intelligence has 
published information concerning its notification, access, and contest 
procedures because under certain circumstances, the Deputy Chief of 
Staff for Intelligence could decide it is appropriate for an individual 
to have access to all or a portion os his/her records in this system of 
records.
    (E) From subsection (e)(4)(I) because it is necessary to protect the 
confidentiality of sources of information, to protectthe privacy and 
physical safety of participants and their families, confidential 
sources, and witnesses and to avoid the disclosure of specialized 
techniques and procedures. Although the system will be exempt from this 
requirement, the Deputy Chief of Staff for Intelligence has published 
such a notice in broad, generic terms.

    (f) Exempt OPM records. Three Office of Personnel Management systems 
of records apply to Army employees, except for nonappropriated fund 
employees. These systems, the specific exemptions determined to be 
necessary and proper, the records exempted, provisions of the Privacy 
Act from which exempt, and justification are set forth below:
    (1) Personnel Investigations Records (OPM/CENTRAL-9). All material 
and information in these records that meets the criteria stated in 5 
U.S.C. 552a(k)(1), (k)(2), (k)(3), (k)(5), and (k)(6) is exempt from the 
requirements of 5 U.S.C. 552a(c)(3) and (d). These provisions of the 
Privacy Act relate to making accountings of disclosures available to the 
data subject and access to and amendment of records. The specific 
applicability of the exemptions to this system and the reasons for the 
exemptions are as follows:

[[Page 57]]

    (i) Personnel investigations may obtain from another Federal agency 
properly classified information which pertains to national defense and 
foreign policy. Application of exemption (k)(1) may be necessary to 
preclude the data subject's access to and amendment of such classified 
information under 5 U.S.C. 552a(d).
    (ii) Personnel investigations may contain investigatory material 
compiled for law enforcement purposes other than material within the 
scope of 5 U.S.C. 552a(j)(2), e.g., investigations into the 
administration of the merit system. Application of exemption (k)(2) may 
be necessary to preclude the data subject's access to or amendment of 
such records, under 552a(c)(3) and (d).
    (iii) Personnel investigations may obtain from another Federal 
agency information that relates to providing protective services to the 
President of the United States or other individuals pursuant to section 
3056 of title 18. Application of exemption (k)(3) may be necessary to 
preclude the data subject's access to and amendment of such records 
under 5 U.S.C. 552a(d).
    (iv) All information about individuals in these records that meets 
the criteria stated in 5 U.S.C. 552a(k)(5) is exempt from the 
requirements of 5 U.S.C. 552a(c)(3) and (4). These provisions of the 
Privacy Act relate to making accountings of disclosures available to the 
data subject, and access to and amendment of records. These exemptions 
are claimed because this system contains investigatory material compiled 
solely for the purpose of determining suitability, eligibility, and 
qualifications for Federal civilian employment. To the extent that the 
disclosure of material would reveal the identity of source who furnished 
information to the Government under an express promise that the identity 
of the source would held in confidence, or, prior to September 27, 1975, 
under an implied promise that the identity of the source would be held 
in confidence, the application of exemption (k)(5) will be required to 
honor such a promise should the data subject request access to or 
amendment of the record, or access to the accounting of disclosures of 
the record.
    (v) All material and information in the records that meets the 
criteria stated in 5 U.S.C. 552a(k)(6) is exempt from the requirements 
of 5 U.S.C. 552a(d), relating to access to and amendment of records by 
the data subject. This exemption is claimed because portions of this 
system relate to testing or examination materials used solely to 
determine individual qualifications for appointment or promotion in the 
Federal service. Access to or amendment of this information by the data 
subject would compromise the objectivity and fairness of the testing or 
exemption process.
    (2) Recruiting, Examining, and Placement Records (OPM/GOVT-5).
    (i) All information about individuals in these records that meets 
the criteria stated in 5 U.S.C. 552a(k)(5) is exempt from the 
requirements of 5 U.S.C. 552a(c)(3) and (d). These provisions of the 
Privacy Act relate to making accountings of disclosures available to the 
data subject and access to and amendment of records. These exemptions 
are claimed because this system contains investigative material compiled 
solely for the purpose of determining the appropriateness of a request 
for approval of an objection to an eligible's qualification for 
employment in the Federal service. To the extent that the disclosure of 
such material would reveal the identity of a source who furnished 
information to the Government under an express promise that the identity 
of the source would be held in confidence, the application of exemption 
(k)(5) will be required to honor such a promise should the data subject 
request access to the accounting of disclosures of the record.
    (ii) All material and information in these records that meets the 
criteria stated in 5 U.S.C. 552a(k)(6) are exempt from the requirements 
of 5 U.S.C. 552a(d), relating to access to and amendment of records by 
the subject. The exemption is claimed because portions of this system 
relate to testing or examination materials used solely to determine 
individual qualification for appointment or promotion in the Federal 
service and access to or amendment of this information by the data

[[Page 58]]

subject would compromise the objectivity and fairness of the testing or 
examining process.
    (3) Personnel Research Test Validation Records (OPM/GOVT-6). All 
material and information in these records that meets the criteria stated 
in 5 U.S.C. 552a(k)(6) is exempt from the requirements of 5 U.S.C. 
552a(d), relating to access to and amendment of the records by the data 
subject. This exemption is claimed because portions of this system 
relate to testing or examination materials used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service. Access to or amendment of this information by the data subject 
would compromise the objectivity and fairness of the testing or 
examination process.

[61 FR 43657, Aug. 26, 1996, as amended at 62 FR 48480, Sept. 16, 1997; 
64 FR 45877, Aug. 23, 1999; 65 FR 6895, Feb. 11, 2000]

       Appendix A to Part 505--Example of System of Records Notice

                              A0319.01DACA

                              System name:

    Out-of-Service Accounts Receivables.

                            System location:

    US Army Finance and Accounting Center, Ft Benjamin Harrison, IN 
46249.

            Categories of individuals covered by the system:

    Separated and retired military/civilian personnel and others 
indebted to the US Army.

                  Categories of records in the system:

    Records of current and former military members and civilian 
employees' pay accounts showing entitlements, deductions, payments made, 
and any indebtedness resulting from deductions and payments exceeding 
entitlements. These records include, but are not limited to:
    a. Individual military pay records, substantiating documents such as 
military pay orders, pay adjustment authorizations, military master pay 
account printouts from the Joint Uniform Military Pay System (JUMPS), 
records of travel payments, financial record data folders, miscellaneous 
vouchers, personal financial records, credit reports, promissory notes, 
individual financial statements, and correspondence;
    b. Application for waiver of erroneous payments or for remission of 
indebtedness with supporting documents, including, but not limited to 
statements of financial status (personal income and expenses), 
statements of commanders and/or accounting and finance officers, 
correspondence with members and employees;
    c. Claims of individuals requesting additional payments for service 
rendered with supporting documents including, but not limited to, time 
and attendance reports, leave and earnings statements, travel orders 
and/or vouchers, and correspondence with members and employees;
    d. Delinquent accounts receivable from field accounting and finance 
officers including, but not limited to, returned checks, medical 
services billings, collection records, and summaries of the Army 
Criminal Investigations Command and/or Federal Bureau of Investigation 
reports:
    e. Reports from probate courts regarding estates of deceased 
debtors;
    f. Reports from bankruptcy courts regarding claims of the United 
States against debtors.

                Authority for maintenance of the system:

    31 U.S.C., section 3711; 10 U.S.C., section 2774; and 12 U.S.C., 
section 1715.

                                Purpose:

    To process, monitor, and post-audit accounts receivable, to 
administer the Federal Claims Collection Act, and to answer inquiries 
pertaining thereto.

Routine users of records maintained in the system, including categories 
                 of users and the purposes of such uses:

    Information may be disclosed to:
    US Department of Justice/US Attorneys: For legal action and/or final 
disposition of the debt claims. The litigation briefs (comprehensive, 
written referral recommendations) will restructure the entire scope of 
the collection cases.
    Internal Revenue Service: To obtain locator status for delinquent 
accounts receivables; (Automated controls exist to preclude redisclosure 
of solicited IRS address data); and/or to report write-off amounts as 
taxable income as pertains to amounts compromised and accounts barred 
from litigation due to age.
    Private Collection Agencies: For collection action when the Army has 
exhausted its internal collection efforts.

               Disclosure to Consumer Reporting Agencies:

    Disclosures pursuant to 5 U.S.C. 552a(b)(12) may be made to 
``consumer reporting agencies'' as defined in the Fair Credit Reporting 
Act (15 U.S.C. 1681a(f) or the Federal Claims Collection Act of 1966 (31 
U.S.C. 3701(a)(3)) when an individual is responsible for a debt to the 
US Army, provided the debt has been validated, is overdue, and the 
debtor has

[[Page 59]]

been advised of the disclosure and his rights to dispute, appeal or 
review the claim; and/or whenever a financial status report is requested 
for use in the administration of the Federal Claims Collection Act. 
Claims of the United States may be compromised, terminated or suspended 
when warranted by information collected.

 Policies and practices for storing, retrieving, accessing, retaining, 
                 and disposing of records in the system:

                                Storage:

    Paper records in collection file folders and bulk storage; card 
files, computer magnetic tapes and printouts; microfiche.

                             Retrievability:

    By Social Security Number, name, and substantiating document number; 
conventional indexing is used to retrieve data.

                               Safeguards:

    The US Army Finance and Accounting Center employs security guards. 
An employee badge and visitor registration system is in effect. Hard 
copy records are maintained in areas accessible only to authorized 
personnel who are properly screened, cleared and trained. Computerized 
records are accessed by custodian of the records system and by persons 
responsible for servicing the record system in the performance of their 
official duties. Certifying finance and accounting officers of debts 
have access to debt information to confirm if the debt is valid and 
collection action is to be continued. Computer equipment and files are 
located in a separate secured area.

                         Retention and disposal:

    Individual military pay records and accounts receivables are 
converted to microfiche and retained for 6 years. Destruction is by 
shredding. Retention periods for other records vary according to 
category, but total retention does not exceed 56 years; these records 
are sent to the Federal Records Center, General Services Administration 
at Dayton, Ohio; destruction is by burning or salvage as waste paper.

                     System manager(s) and address:

    Commander, US Army Finance and Accounting Center Indianapolis, IN 
46249.

                         Notification procedure:

    Individuals desiring to know whether this system of records contains 
information about them should contact the System Manager, ATTN: FINCP-F, 
furnishing full name, Social Security Number, and military status or 
other information verifiable from the record itself.

                        Record access procedures:

    Individuals seeking access to records in this system pertaining to 
them should submit a written request as indicated in ``Notification 
procedure'' and furnish information required therein.

                      Contesting record procedures:

    The Army's rules for access to records and for contesting and 
appealing initial determinations are contained in Army Regulation 340-21 
(32 CFR part 505).

                        Record source categories:

    Information is received from Department of Defense staff and field 
installations, Social Security Administration, Treasury Department, 
financial organizations, and automated system interface.

          Systems exempted from certain provisions of the act:

    None.

   Appendix B to Part 505--Example of Report for New System of Records

                           Narrative Statement

    1. System Identification and Name: A0404.02DAJA, Courts-Martial 
Files.
    2. Responsible Official: Mr. James D. Kemper, US Army Legal Services 
Agency, Office of The Judge Advocate General, Room 204B, Nassif 
Building, Falls Church, VA 22041.
    3. Purpose of the System: Records of trial by court-martial are 
necessary for the purpose of legal review and final action in court-
martial cases. After completion of appellate review, they protect each 
accused against a subsequent trial for the same offense(s).
    4. Authority for the System: Title 10 U.S.C., Chapter 47, Section 
865 states that, in the case of a general court-martial or when sentence 
that includes a bad conduct discharge is approved by the convening 
authority in a special court-martial, the record will be sent to The 
Judge Advocate General. All other special and summary court-martial 
records will be reviewed by a Judge Advocate.
    5. Number (or estimate) of individuals on whom records will be 
maintained: Approximately 7,000,000.
    6. Information on First Amendment Activities: The system contains no 
information on First Amendment activities per se; however, the system 
may include records of trial in which the charged misconduct was an 
activity arguably protected by the First Amendment.
    7. Measures to Assure Information Accuracy: In a trial by court-
martial, the accused has a unique opportunity to assure that his record 
is accurate, relevant, timely, and complete as it is made. He has the 
right to be present at trial, to be represented by counsel in general 
and special courts-martial

[[Page 60]]

and to consult with counsel prior to a summary courts-martial to review 
and challenge all information before it is introduced into evidence, to 
cross-examine all witnesses against him, to present evidence in his 
behalf, and in general and special courts-martial, to review and comment 
upon the record of trial before the convening authority's action.
    8. Other Measures to Assure System Security: As courts-martial 
records reflect criminal proceedings ordinarily open to the public, 
copies are normally releasable to the public pursuant to the Freedom of 
Information Act. However, access to the original records is limited to 
authorized individuals. Security measures consist of standard physical 
security devices and civilian and military guards.
    9. Relationship to State/Local Government Activities: None.
    10. Supporting Documentation: Proposed system notice and proposed 
exemption rule are at Encl 1 and 2 respectively.

   Appendix C to Part 505--Provisions of the Privacy Act From Which a 
              General or Specific Exemption May Be Claimed

------------------------------------------------------------------------
                  Exemption
--------------------------------------------- Section of the Privacy Act
       (j)(2)                (k)(l-7)
------------------------------------------------------------------------
No                    No                      (b)(1) Disclosures within
                                               the Department of
                                               Defense.
No                    No                        (2) Disclosures to the
                                                 public.
No                    No                        (3) Disclosures for a
                                                 ``Routine Use.''
No                    No                        (4) Disclosures to the
                                                 Bureau of Census.
No                    No                        (5) Disclosures for
                                                 statistical research
                                                 and reporting.
No                    No                        (6) Disclosures to the
                                                 National Archives.
No                    No                        (7) Disclosures for law
                                                 enforcement purposes.
No                    No                        (8) Disclosures under
                                                 emergency
                                                 circumstances.
No                    No                        (9) Disclosures to the
                                                 Congress.
No                    No                        (10) Disclosures to the
                                                 General Accounting
                                                 Office.
No                    No                        (11) Disclosures
                                                 pursuant to court
                                                 orders.
No                    No                        (12) Disclosure to
                                                 consumer reporting
                                                 agencies.
No                    No                      (c)(1) Making disclosure
                                               accountings.
No                    No                        (2) Retaining disclosure
                                                 accountings.
Yes                   Yes                     (c)(3) Making disclosure
                                               accounting available to
                                               the individual.
Yes                   No                      (c)(4) Informing prior
                                               recipients of
                                               corrections.
Yes                   Yes                     (d)(1) Individual access
                                               to records.
Yes                   Yes                       (2) Amending records.
Yes                   Yes                       (3) Review of the
                                                 Component's refusal to
                                                 amend a record.
Yes                   Yes                       (4) Disclosure of
                                                 disputed information.
Yes                   Yes                       (5) Access to
                                                 information compiled in
                                                 anticipation of civil
                                                 action.
Yes                   Yes                     (e)(1) Restrictions on
                                               collecting information.
Yes                   No                      (e)(2) Collecting directly
                                               from the individual.
Yes                   No                        (3) Informing
                                                 individuals from whom
                                                 information is
                                                 requested.
No                    No                      (e)(4)(A) Describing the
                                               name and location of the
                                               system.
No                    No                        (B) Discribing
                                                 categories of
                                                 individuals.
No                    No                        (C) Describing
                                                 categories of records.
No                    No                        (D) Describing routine
                                                 uses.
No                    No                        (E) Describing records
                                                 management policies and
                                                 practices.
No                    No                        (F) Identifying
                                                 responsible officials.
Yes                   Yes                     (e)(4)(G) Procedures for
                                               determining if a system
                                               contains a record on an
                                               individual.
Yes                   Yes                       (H) Procedures for
                                                 gaining access.
Yes                   Yes                       (I) Describing
                                                 categories of
                                                 information sources.
Yes                   No                      (e)(5) Standards of
                                               accuracy.
No                    No                      (e)(6) Validating records
                                               before disclosure.
No                    No                      (e)(7) Records of First
                                               Amendment activities.
No                    No                      (e)(8) Notification of
                                               disclosure under
                                               compulsory legal process.
No                    No                      (e)(9) Rules of conduct.
No                    No                      (e)(10) Administrative,
                                               technical and physical
                                               safeguards.
No                    No                        (11) Notice for new and
                                                 revised routine uses.
Yes                   Yes                     (f)(1) Rules for
                                               determining if an
                                               individual is subject of
                                               a record.
Yes                   Yes                     (f)(2) Rules for handling
                                               access requests.
Yes                   Yes                     (f)(3) Rules for granting
                                               access.
Yes                   Yes                     (f)(4) Rules for amending
                                               records.
Yes                   Yes                     (f)(5) Rules regarding
                                               fees.
Yes                   No                      (g)(1) Basis for civil
                                               action.
Yes                   No                      (g)(2) Basis for judicial
                                               review and remedies for
                                               refusal to amend.
Yes                   No                      (g)(3) Basis for judicial
                                               review and remedies for
                                               denial of access.
Yes                   No                      (g)(4) Basis for judicial
                                               review and remedies for
                                               other failure to comply.
Yes                   No                      (g)(5) Jurisdiction and
                                               time limits.
Yes                   No                      (h) Rights of legal
                                               guardians.
No                    No                      (i)(1) Criminal penalties
                                               for unauthorized
                                               disclosure.
No                    No                        (2) Criminal penalites
                                                 for failure to publish.
No                    No                        (3) Criminal penalties
                                                 for obtaining records
                                                 under false pretenses.
Yes                   No                      (j) Rulemaking
                                               requirement.
N/A                   No                      (j)(1) General exemption
                                               for the Central
                                               Intelligence Agency.
N/A                   No                      (j)(2) General exemption
                                               for criminal law
                                               enforcement records.
Yes                   N/A                     (k)(1) Exemption for
                                               classified material.
N/A                   N/A                     (k)(2) Exemption for law
                                               enforcement material.
Yes                   N/A                     (k)(3) Exemption for
                                               records pertaining to
                                               Presidential protection.

[[Page 61]]

 
Yes                   N/A                     (k)(4) Exemption for
                                               statistical records.
Yes                   N/A                     (k)(5) Exemption for
                                               investigatory material
                                               compiled for determining
                                               suitability for
                                               employment or service.
Yes                   N/A                     (k)(6) Exemption for
                                               testing or examination
                                               material.
Yes                   N/A                     (k)(7) Exemption for
                                               promotion evaluation
                                               materials used by the
                                               Armed Forces.
Yes                   No                      (l)(1) Records stored in
                                               GSA records centers.
Yes                   No                      (l)(2) Records archived
                                               before September 27,
                                               1975.
Yes                   No                      (l)(3) Records archived on
                                               or after September 27,
                                               1975.
Yes                   No                      (m) Applicability to
                                               government contractors.
Yes                   No                      (n) Mailing lists.
Yes                   No                      (o) Reports on new
                                               systems.
Yes                   No                      (p) Annual report.
------------------------------------------------------------------------

                Appendix D to Part 505--Glossary of Terms

                                Section I

                              Abbreviations

                                  AAFES

Army and Air Force Exchange Service

                                  AARA

Access and Amendment Refusal Authority

                                  ACSIM

Assistant Chief of Staff for Information Management

                                   DA

Department of the Army

                                   DOD

Department of Defense

                                   GAO

General Accounting Office

                                   GSA

General Services Administration

                                  JUMPS

Joint uniform military pay system

                                  MACOM

Major Army command

                                  MPMIS

Military Police management information system

                                  NARS

National Archives and Records Service

                                   NGB

National Guard Bureau

                                   OMB

Office of Management and Budget

                                   OPM

Office of Personnel Management

                                   SSN

Social Security Number

                                   TAG

The Adjutant General

                                   TIG

The Inspector General

                                  TJAG

The Judge Advocate General

                                 USACIDC

U.S. Army Criminal Investigation Command

                               Section II

                                  Terms

                                 Access

The review of a record or obtaining a copy of a record or parts thereof 
in a system of records.

                                 Agency

The DOD is a single agency for the purpose of disclosing records subject 
to The Privacy Act of 1974. For other purposes, including access, 
amendment, appeals from denials of access or amendment, exempting 
systems of records, and record-keeping for release to non-DOD agencies, 
the DA is an agency.

                 Access and Amendment Refusal Authority

The Army Staff agency head or major Army commander designated sole 
authority by this regulation to deny access to, or refuse amendment of, 
records in his or her assigned area or functional specialization.

                           Confidential source

A person or organization that has furnished information to the Federal 
Government under an express promise that its identity would be withheld, 
or under an implied promise of such confidentiality if this implied 
promise was made before September 27, 1975.

[[Page 62]]

                              Data subject

The individual about whom the Army is maintaining information in a 
system of records.

                               Disclosure

The furnishing of information about an individual by any means, to an 
organization, Government agency, or to an individual who is not the 
subject of the record, the subject's designated agent or legal guardian. 
Within the context of the Privacy Act and this regulation, this term 
applies only to personal information that is a part of a system of 
records.

                               Individual

A living citizen of the United States or an alien admitted for permanent 
residence. The Privacy Act rights of an individual may be exercised by 
the parent or legal guardian of a minor or an incompetent. (The Privacy 
Act confers no rights on deceased persons, nor may their next-of-kin 
exercise any rights for them.)

                                Maintain

Collect, use, maintain, or disseminate.

                              Official use

Any action by a member or employee of DOD that is prescribed or 
authorized by law or a regulation and is intended to perform a mission 
or function of the Department.

                          Personal information

Information about an individual that is intimate or private to the 
individual, as distinguished from information related solely to the 
individual's official functions or public life.

                           Privacy Act request

A request from an individual for information about the existence of, or 
for access to or amendment of, a record about him or her that is in a 
system of records. The request must cite or implicitly refer to the 
Privacy Act.

                                 Record

Any item, collection, or grouping of information about an individual 
that--
    a. Is kept by the Government including, but not limited to, an 
individual's home address, home telephone number, SSN, education, 
financial transactions, medical history, and criminal or employment 
history.
    b. Contains an individual's name, identifying number, symbol, or 
other individual identifier such as a finger, voice print, or a 
photograph.

                               Routine use

Disclosure of a record outside DOD without the consent of the subject 
individual for a use that is compatible with the purpose for which the 
information was collected and maintained by DA. The routine use must be 
included in the published system notice for the system of records 
involved.

                           Statistical record

A record maintained only for statistical research or reporting purposes 
and not used in whole or in part in making determinations about specific 
individuals.

                             System manager

The official responsible for policies and procedures for operating and 
safeguarding a system or records. This official is located normally at 
Headquarters, DA.

                            System of records

A group of records under the control of DA from which information is 
retrieved by the individual's name or by some identifying number, 
symbol, or other identifying particular assigned to the individual. 
System notices for all systems of records must be published in the 
Federal Register. (A grouping or files series of records arranged 
chronologically or subjectively that is not retrieved by individual 
identifier is not a system of records, even though individual 
information could be retrieved by such an identifier, such as through a 
paper-by-paper search.)



PART 507--MANUFACTURE AND SALE OF DECORATIONS, MEDALS, BADGES, INSIGNIA, COMMERCIAL USE OF HERALDIC DESIGNS AND HERALDIC QUALITY CONTROL PROGRAM--Table of Contents




                         Subpart A--Introduction

Sec.
507.1  Purpose.
507.2  References.
507.3  Explanation of abbreviations and terms.
507.4  Responsibilities.
507.5  Statutory authority.

  Subpart B--Manufacture and Sale of Decorations, Medals, Badges, and 
                                Insignia

507.6  Authority to manufacture.
507.7  Authority to sell.
507.8  Articles authorized for manufacture and sale.
507.9  Articles not authorized for manufacture or sale.

[[Page 63]]

              Subpart C--Commercial Use of Heraldic Designs

507.10  Incorporation of designs or likenesses of approved designs in 
          commercial articles.
507.11  Reproduction of designs.
507.12  Possession and wearing.

               Subpart D--Heraldic Quality Control Program

507.13  General.
507.14  Controlled heraldic items.
507.15  Certification of heraldic items.
507.16  Violations and penalties.
507.17  Procurement and wear of heraldic items.
507.18  Processing complaints of alleged breach of policies.

    Authority: 10 U.S.C. 3012, 18 U.S.C. 701, 18 U.S.C. 702

    Source: 63 FR 27208, May 18, 1998, unless otherwise noted.



                         Subpart A--Introduction



Sec. 507.1  Purpose.

    This part prescribes the Department of the Army and the Air Force 
policy governing the manufacture, sale, reproduction, possession, and 
wearing of military decorations, medals, badges, and insignia. It also 
establishes the Heraldic Item Quality Control Program to improve the 
appearance of the Army and Air Force by controlling the quality of 
heraldic items purchased from commercial sources.



Sec. 507.2  References.

    Related publications are listed in paragraphs (a) through (f) of 
this section. (A related publication is merely a source of additional 
information. The user does not have to read it to understand this part). 
Copies of referenced publications may be reviewed at Army and Air Force 
Libraries or may be purchased from the National Technical Information 
Services, U.S. Department of Commerce, 5285 Port Royal Road, 
Springfield, VA 22161.
    (a) AFI 36-2903, Dress and Personal Appearance of Air Force 
Personnel.
    (b) AR 360-5, Public Information.
    (c) AR 670-1, Wear and Appearance of Army Uniforms and Insignia.
    (d) AR 840-1, Department of the Army Seal, and Department of the 
Army Emblem and Branch of Service Plaques.
    (e) AR 840-10, Heraldic Activities, Flags, Guidons, Streamers, 
Tabards and Automobile Plates.
    (f) AFR 900-3, Department of the Air Force Seal, Organizational 
Emblems, Use and Display of Flags, Guidons, Streamers, and Automobile 
and Aircraft Plates.



Sec. 507.3  Explanation of abbreviations and terms.

    (a) Abbreviations.
    (1) AFB--Air Force Base.
    (2) DA--Department of the Army.
    (3) DCSPER--Deputy Chief of Staff for Personnel.
    (4) DSCP--Defense Supply Center Philadelphia.
    (5) DUI--distinctive unit insignia.
    (6) ROTC--Reserve Officers' Training Corps.
    (7) SSI--shoulder sleeve insignia.
    (8) TIOH--The Institute of Heraldry.
    (9) USAF--United States Air Force.
    (b) Terms.--(1) Cartoon. A drawing six times actual size, showing 
placement of stitches, color and size of yarn and number of stitches.
    (2) Certificate of authority to manufacture. A certificate assigning 
manufacturers a hallmark and authorizing manufacture of heraldic items.
    (3) Hallmark. A distinguishing mark consisting of a letter and 
numbers assigned to certified manufacturers for use in identifying 
manufacturers of insignia.
    (4) Heraldic items. All items worn on the uniform to indicate unit, 
skill, branch, award or identification and a design has been established 
by TIOH on an official drawing.
    (5) Letter of agreement. A form signed by manufacturers before 
certification, stating that the manufacturer agrees to produce heraldic 
items in accordance with specific requirements
    (6) Letter of authorization. A letter issued by TIOH that authorizes 
the manufacture of a specific heraldic item after quality assurance 
inspection of a preproduction sample.
    (7) Tools. Hubs, dies, cartoons, and drawings used in the 
manufacture of heraldic items.



Sec. 507.4  Responsibilities.

    (a) Deputy Chief of Staff for Personnel (DCSPER), Army. The DCSPER 
has

[[Page 64]]

staff responsibility for heraldic activities in the Army.
    (b) The Director, The Institute of Heraldry (TIOH). The Director, 
TIOH, will--
    (1) Monitor the overall operation of the Heraldic Quality Control 
Program.
    (2) Authorize the use of insignia designs in commercial items.
    (3) Certify insignia manufacturers.
    (4) Inspect the quality of heraldic items.
    (c) The Commander, Air Force Personnel Center, Randolph AFB, TX 
78150-4739. The Commander has staff responsibility for heraldic 
activities in the Air Force.
    (d) The Chief, Air Force Personnel Center Commander's Programs 
Branch (HQ AFPC/DPSFC), 550 C Street West, Suite 37, Randolph AFB, TX 
78150-4739. The Chief, Commander's Programs Branch is responsible for 
granting permission for the incorporation of certain Air Force badges 
and rank insignia designs in commercial items.
    (e) Commander, Air Force Historical Research Agency (AFHRA/RSO), 
Maxwell AFB, AL 36112-6424. The Commander, AFHRA/RSO, is responsible for 
granting permission for use of the Air Force seal, coat of arms, and 
crest.
    (f) Commanders. Commanders are responsible for purchasing heraldic 
items that have been produced by manufacturers certified by TIOH. 
Commanders will ensure that only those heraldic items that are of 
quality and design covered in the specification and that have been 
produced by certified manufacturers are worn by personnel under their 
command.



Sec. 507.5  Statutory authority.

    (a) The wear, manufacture, and sale of military decorations, medals, 
badges, their components and appurtenances, or colorable imitations of 
them, are governed by section 704, title 18, United States Code (18 
U.S.C. 704).
    (b) The manufacture, sale, possession, and reproduction of badges, 
identification cards, insignia, or other designs, prescribed by the head 
of a U.S. department or agency, or colorable imitations of them, are 
governed by Title 18, United States Code, Section 701 (18 U.S.C. 701).
    (c) This part incorporates the statutory provisions.



  Subpart B--Manufacture and Sale of Decorations, Medals, Badges, and 
                                Insignia.



Sec. 507.6  Authority to manufacture.

    (a) A certificate of authority to manufacture heraldic articles may 
be granted by the Institute of Heraldry.
    (1) Certificates of authority will be issued only to companies who 
have manufacturing capability and agree to manufacture heraldic items 
according to applicable specifications or purchase descriptions.
    (2) The certificate of authority is valid only for the individual or 
corporation indicated.
    (3) A hallmark will be assigned to each certified manufacturer. All 
insignia manufactured will bear the manufacturer's hallmark.
    (b) A certificate of authority may be revoked or suspended under the 
procedures prescribed in subpart D of this part.
    (c) Manufacturers will submit a preproduction sample to TIOH of each 
item they manufacture for certification under the Heraldic Quality 
Control Program. A letter of certification authorizing manufacture of 
each specific item will be issued provided the sample meets quality 
assurance standards.
    (d) A copy of the certified manufactures list will be furnished to 
the Army and Air Force Exchange Service and, upon request, to Army and 
Air Force commanders.



Sec. 507.7  Authority to sell.

    No certificate of authority to manufacture is required to sell 
articles listed in Sec. 507.8 of this part; however, sellers are 
responsible for insuring that any article they sell is manufactured in 
accordance with Government specifications using government furnished 
tools, bears a hallmark assigned by TIOH, and that the manufacturer has 
received a certification to manufacture that specific item prior to 
sale.

[[Page 65]]



Sec. 507.8  Articles authorized for manufacture and sale.

    (a) The articles listed in paragraphs (a) (1) through (10) of this 
section are authorized for manufacture and sale when made in accordance 
with approved specifications, purchase descriptions or drawings.
    (1) All authorized insignia (AR 670-1 and AFI 36-2903).
    (2) Appurtenances and devices for decorations, medals, and ribbons 
such as oak leaf clusters, service stars, arrowheads, V-devices, and 
clasps.
    (3) Combat, special skill, occupational and qualification badges and 
bars.
    (4) Identification badges.
    (5) Fourrageres and lanyards.
    (6) Lapel buttons.
    (7) Decorations, service medals, and ribbons, except for the Medal 
of Honor.
    (8) Replicas of decorations and service medals for grave markers. 
Replicas are to be at least twice the size prescribed for decorations 
and service medals.
    (9) Service ribbons for decorations, service medals, and unit 
awards.
    (10) Rosettes.
    (11) Army emblem and branch of service plaques.
    (b) Variations from the prescribed specifications for the items 
listed in paragraph (a) of this section are not permitted without prior 
approval, in writing, by TIOH.



Sec. 507.9  Articles not authorized for manufacture or sale.

    The following articles are not authorized for manufacture and sale, 
except under contract with DSCP:
    (a) The Medal of Honor.
    (b) Service ribbon for the Medal of Honor.
    (c) Rosette for the Medal of Honor.
    (d) Service flags (prescribed in AR 840-10 or AFR 900-3).
    (e) Army seal.
    (f) Commercial articles for public sale that incorporate designs or 
likenesses of decorations, service medals, and service ribbons.
    (g) Commercial articles for public sale that incorporate designs or 
likenesses of designs of insignia listed in Sec. 507.8 of this part, 
except when authorized by the Service concerned.



              Subpart C--Commercial Use of Heraldic Designs



Sec. 507.10  Incorporation of designs or likenesses of approved designs in commercial articles.

    The policy of the Department of the Army and the Department of the 
Air Force is to restrict the use of military designs for the needs or 
the benefit of personnel of their Services.
    (a) Except as authorized in writing by the Department of the Army or 
the Department of the Air Force, as applicable, the manufacture of 
commercial articles incorporating designs or likenesses of official 
Army/Air Force heraldic items is prohibited. However, certain designs or 
likenesses of insignia such as badges or organizational insignia may be 
incorporated in articles manufactured for sale provided that permission 
has been granted as specified in paragraphs (a) (1) and (2) of this 
section.
    (1) Designs approved for use of the Army. The Director, The 
Institute of Heraldry, 9325 Gunston Road, Room S-112, Fort Belvoir, VA 
22060-5579, is responsible for granting permission for the incorporation 
of certain Army insignia designs and the Army emblem in commercial 
articles manufactured for sale. Permission for such use will be in 
writing. Commanders of units authorized a SSI or DUI may authorize the 
reproduction of their SSI or DUI on commercial articles such as shirts, 
tie tacks, cups, or plaques. Permission for use of a SSI or DUI will be 
submitted in writing to the commander concerned. Authorization for 
incorporation of designs or likenesses of designs in commercial items 
will be granted only to those manufacturers who agree to offer these 
items for sale only to Army and Air Force Exchange Service and outlets 
that sell primarily to military personnel and their dependents.
    (2) Designs approved for use of the Air Force. Headquarters, Air 
Force Personnel Center, Chief, Commander's Programs Branch (HQ AFPC/
DPSFC), 550 C Street West, Suite 37, Randolph AFB, TX 78150-4739, is 
responsible for granting permission for the incorporation of certain Air 
Force designs for commercial articles manufactured for

[[Page 66]]

sale. The Commander, Air Force Historical Research Agency, AFHRA/RSO, 
Maxwell AFB, AL 36112-6678, is responsible for granting permission for 
the incorporation of the coat of arms, crest, seal and organizational 
emblems. Such permission will be in writing. Authorization for 
incorporation of designs or likenesses of designs in commercial items 
will be granted only to those manufacturers who agree to offer these 
items for sale only to the Army and Air Force Exchange Service, or to 
those outlets that sell primarily to military personnel and their 
dependents.
    (b) In the case of the Honorable Service lapel button, a general 
exception is made to permit the incorporation of that design in articles 
manufactured for public sale provided that such articles are not 
suitable for wear as lapel buttons or pins.



Sec. 507.11  Reproduction of designs.

    (a) The photographing, printing, or, in any manner making or 
executing any engraving, photograph, print, or impression in the 
likeness of any decoration, service medal, service ribbon, badge, lapel 
button, insignia, or other device, or the colorable imitation thereof, 
of a design prescribed by the Secretary of the Army or the Secretary of 
the Air Force for use by members of the Army or the Air Force is 
authorized provided that such reproduction does not bring discredit upon 
the military service and is not used to defraud or to misrepresent the 
identification or status of an individual, organization, society, or 
other group of persons.
    (b) The use for advertising purposes of any engraving, photograph, 
print, or impression of the likeness of any Department of the Army or 
Department of the Air Force decoration, service medal, service ribbon, 
badge, lapel button, insignia, or other device (except the Honorable 
Service lapel button) is prohibited without prior approval, in writing, 
by the Secretary of the Army or the Secretary of the Air Force except 
when used to illustrate a particular article that is offered for sale. 
Request for use of Army insignia in advertisements or promotional 
materials will be processed through public affairs channels in 
accordance with AR 360-5, paragraph 3-37.
    (c) The reproduction in any manner of the likeness of any 
identification card prescribed by Department of the Army or Department 
of the Air Force is prohibited without prior approval in writing by the 
Secretary of the Army or Secretary of the Air Force.



Sec. 507.12  Possession and wearing.

    (a) The wearing of any decoration, service medal, badge, service 
ribbon, lapel button, or insignia prescribed or authorized by the 
Department of the Army and the Department of the Air Force by any person 
not properly authorized to wear such device, or the use of any 
decoration, service medal, badge, service ribbon, lapel button, or 
insignia to misrepresent the identification or status of the person by 
whom such is worn is prohibited. Any person who violates the provision 
of this section is subject to punishment as prescribed in the statutes 
referred to in Sec. 507.5 of this part.
    (b) Mere possession by a person of any of the articles prescribed in 
Sec. 507.8 of this part is authorized provided that such possession is 
not used to defraud or misrepresent the identification or status of the 
individual concerned.
    (c) Articles specified in Sec. 507.8 of this part, or any 
distinctive parts including suspension ribbons and service ribbons) or 
colorable imitations thereof, will not be used by any organization, 
society, or other group of persons without prior approval in writing by 
the Secretary of the Army or the Secretary of the Air Force.



               Subpart D--Heraldic Quality Control Program



Sec. 507.13  General.

    The heraldic quality control program provides a method of ensuring 
that insignia items are manufactured with tools and specifications 
provided by TIOH.



Sec. 507.14  Controlled heraldic items.

    The articles listed in Sec. 507.8 of this part are controlled 
heraldic items and will be manufactured in accordance with Government 
specifications using

[[Page 67]]

Government furnished tools or cartoons. Tools and cartoons are not 
provided to manufacturers for the items in paragraphs (a) through (e) of 
this section. However, manufacture will be in accordance with the 
Government furnished drawings.
    (a) Shoulder loop insignia, ROTC, U.S. Army.
    (b) Institutional SSI, ROTC, U.S. Army.
    (c) Background trimming/flashes, U.S. Army.
    (d) U.S. Air Force organizational emblems for other than major 
commands.
    (e) Hand embroidered bullion insignia.



Sec. 507.15  Certification of heraldic items.

    A letter of certification to manufacture each heraldic item, except 
those listed in Sec. 507.14 (a) through (e) of this part, will be 
provided to the manufacturer upon submission of a preproduction sample. 
Manufacture and sale of these items is not authorized until the 
manufacturer receives a certification letter from TIOH.



Sec. 507.16  Violations and penalties.

    A certificate of authority to manufacture will be revoked by TIOH 
upon intentional violation by the holder thereof of any of the 
provisions of this part, or as a result of not complying with the 
agreement signed by the manufacturer in order to receive a certificate. 
Such violations are also subject to penalties prescribed in the Acts of 
Congress (Sec. 507.5 of this part). A repetition or continuation of 
violations after official notice thereof will be deemed prima facie 
evidence of intentional violation.



Sec. 507.17  Procurement and wear of heraldic items.

    (a) The provisions of this part do not apply to contracts awarded by 
the Defense Personnel Support Center for manufacture and sale to the 
U.S. Government.
    (b) All Army and Air Force service personnel who wear quality 
controlled heraldic items that were purchased from commercial sources 
will be responsible for ensuring that the items were produced by a 
certified manufacturer. Items manufactured by certified manufacturers 
will be identified by a hallmark and/or a certificate label certifying 
the item was produced in accordance with specifications.
    (c) Commanders will ensure that only those heraldic items that are 
of the quality and design covered in the specifications and that have 
been produced by certified manufacturers are worn by personnel under 
their command. Controlled heraldic items will be procured only from 
manufacturers certified by TIOH. Commanders procuring controlled 
heraldic items, when authorized by local procurement procedures, may 
forward a sample insignia to TIOH for quality assurance inspection if 
the commander feels the quality does not meet standards.



Sec. 507.18  Processing complaints of alleged breach of policies.

    The Institute of Heraldry may revoke or suspend the certificate of 
authority to manufacture if there are breaches of quality control 
policies by the manufacturer. As used in this paragraph, the term 
quality control policies include the obligation of a manufacturer under 
his or her ``Agreement to Manufacture,'' the quality control provisions 
of this part, and other applicable instructions provided by TIOH.
    (a) Initial processing. (1) Complaints and reports of an alleged 
breach of quality control policies will be forwarded to the Director, 
The Institute of Heraldry, 9325 Gunston Road, Room S-112, Fort Belvoir, 
VA 22060-5579 (hereinafter referred to as Director).
    (2) The Director may direct that an informal investigation of the 
complaint or report be conducted.
    (3) If such investigation is initiated, it will be the duty of the 
investigator to ascertain the facts in an impartial manner. Upon 
conclusion of the investigation, the investigator will submit a report 
to the appointing authority containing a summarized record of the 
investigation together with such findings and recommendations as may be 
appropriate and warranted by the facts.
    (4) The report of investigation will be forwarded to the Director 
for review. If it is determined that a possible breach of quality 
control policies has occurred, the Director will follow the

[[Page 68]]

procedures outlined in paragraphs (b) through (g) of this section.
    (b) Voluntary performance. The Director will transmit a registered 
letter to the manufacturer advising of the detailed allegations of 
breach and requesting assurances of voluntary compliance with quality 
control policies. No further action is taken if the manufacturer 
voluntarily complies with the quality control policies; however, any 
further reoccurrence of the same breach will be considered refusal to 
perform.
    (c) Refusal to perform. (1) If the manufacturer fails to reply 
within a reasonable time to the letter authorized by paragraph (b) of 
this section, or refuses to give adequate assurances that future 
performance will conform to quality control policies, or indicates by 
subsequent conduct that the breach is continuous or repetitive, or 
disputes the allegations of breach, the Director will direct that a 
public hearing be conducted on the allegations.
    (2) A hearing examiner will be appointed by appropriate orders. The 
examiner may be either a commissioned officer or a civilian employee 
above the grade of GS-7.
    (3) The specific written allegations, together with other pertinent 
material, will be transmitted to the hearing examiner for introduction 
as evidence at the hearing.
    (4) Manufacturers may be suspended for failure to return a loaned 
tool without referral to a hearing specified in paragraph (c)(1) of this 
section; however, the manufacturer will be advised, in writing, that 
tools are overdue and suspension will take effect if not returned within 
the specified time.
    (d) Notification to the manufacturer by examiner. Within a 7 day 
period following receipt by the examiner of the allegations and other 
pertinent material, the examiner will transmit a registered letter of 
notification to the manufacturer informing him or her of the following:
    (1) Specific allegations.
    (2) Directive of the Director requiring the holding of a public 
hearing on the allegations.
    (3) Examiner's decision to hold the public hearing at a specific 
time, date, and place that will be not earlier than 30 days from the 
date of the letter of notification.
    (4) Ultimate authority of the Director to suspend or revoke the 
certificate of authority should the record developed at the hearing so 
warrant.
    (5) Right to--
    (i) A full and fair public hearing.
    (ii) Be represented by counsel at the hearing.
    (iii) Request a change in the date, time, or place of the hearing 
for purposes of having reasonable time in which to prepare the case.
    (iv) Submit evidence and present witnesses in his or her own behalf.
    (v) Obtain, upon written request filed before the commencement of 
the hearing, at no cost, a verbatim transcript of the proceedings.
    (e) Public hearing by examiner. (1) At the time, date, and place 
designated in accordance with paragraph (d) (3) of this section, the 
examiner will conduct the public hearing.
    (i) A verbatim record of the proceeding will be maintained.
    (ii) All previous material received by the examiner will be 
introduced into evidence and made part of the record.
    (iii) The Government may be represented by counsel at the hearing.
    (2) Subsequent to the conclusion of the hearing, the examiner will 
make specific findings on the record before him or her concerning each 
allegation.
    (3) The complete record of the case will be forwarded to the 
Director.
    (f) Action by the Director. (1) The Director will review the record 
of the hearing and either approve or disapprove the findings.
    (2) Upon arrival of a finding of breach of quality control policies, 
the manufacturer will be so advised.
    (3) After review of the findings, the certificate of authority may 
be revoked or suspended. If the certificate of authority is revoked or 
suspended, the Director will--
    (i) Notify the manufacturer of the revocation or suspension.
    (ii) Remove the manufacturer from the list of certified 
manufacturers.
    (iii) Inform the Army and Air Force Exchange Service of the action.
    (g) Reinstatement of certificate of authority. The Director may, 
upon receipt

[[Page 69]]

of adequate assurance that the manufacturer will comply with quality 
control policies, reinstate a certificate of authority that has been 
suspended or revoked.



PART 508--COMPETITION WITH CIVILIAN BANDS--Table of Contents




    Authority: Secs. 3012, 3634, 70A Stat. 157, 207; 10 U.S.C. 3012, 
3634.



Sec. 508.1  Utilization of Army bands.

    (a) General. Participation of Army bandsmen in performances off 
military reservations will not interfere with the customary employment 
and regular engagement of local civilians in the respective arts, 
trades, or professions. Such participation will not directly or 
indirectly benefit or appear to benefit or favor any private individual, 
commercial venture, sect, or political or fraternal group, except as may 
be specifically authorized by the Secretary of Defense. The authority to 
determine whether the use of an Army band at a public gathering is 
prohibited by this section is delegated to major commanders.
    (b) Suitability. Commanders authorizing participation by Army bands 
(except the U.S. Army Band and the U.S. Army Field Band) in their 
official capacties and in the performance of official duties will be 
guided by the following conditions of suitability:
    (1) When participation is an appropriate part of official occasions 
attended by the senior officers of the Government or the Department of 
Defense in their official capacities and in the performance of official 
duties.
    (2) For parades and ceremonies which are incident to gatherings of 
personnel of the Armed Forces, veterans, and patriotic organizations.
    (3) At public rallies and parades intended to stimulate national 
interest in the Armed Forces and/or to further the community relation 
program.
    (4) For fund drives for officially recognized Armed Forces relief 
agencies or charitable organizations such as the Red Cross when the 
proceeds are donated to such agencies.
    (5) For athletic contests in which one or more Armed Forces teams 
are participating.
    (6) In connection with recruiting activities for the Armed Forces.
    (7) At official occasions and free social and entertainment 
activities held on or off Armed Forces installations, provided that such 
free social entertainment activities are conducted exclusively for the 
benefit of personnel of the Armed Forces and their guests.

[25 FR 10700, Nov. 9, 1960]



PART 510--CHAPLAINS--Table of Contents




    Authority: R.S. 1125; 10 U.S.C. 238.



Sec. 510.1  Private ministrations, sacraments, and ordinances.

    Chaplains will conduct or arrange for appropriate burial services at 
the interment of members of the military service, active and retired, 
and for members of their families upon request. A chaplain may perform 
the marriage rite, provided he complies with the civil law of the place 
where the marriage is to be solemnized and provided all parties 
concerned have complied with the requirements of the denomination the 
chaplain represents and with any directives which may have been issued 
by the military command or higher headquarters. The scope of the 
chaplains' work will include such ministrations as are held by some 
denominations or religious bodies as sacraments and by others as rites 
or ordinances. Chaplains will administer or arrange for rites and 
sacraments for military personnel and civilians under military 
jurisdiction according to the respective beliefs and conscientious 
practices of all concerned.

[16 FR 12931, Dec. 27, 1951]



PART 513--INDEBTEDNESS OF MILITARY PERSONNEL--Table of Contents




Sec.
513.1  General.
513.2  Administrative procedures for processing complaints.
513.3  Administrative and punitive actions.
513.4  Conditions creditors must meet before getting help in debt 
          processing.

[[Page 70]]

513.5  Procedures governing nonactive duty or discharged personnel.

Appendix A to Part 513--References
Appendix B to Part 513--Standards of Fairness
Appendix C to Part 513--Glossary

    Authority: 10 U.S.C. 3012.

    Source: 51 FR 7268, Mar. 3, 1986, unless otherwise noted.



Sec. 513.1  General.

    (a) Purpose. This regulation prescribes Department of the Army (DA) 
policy, responsibilities, and procedures in handling debt claims against 
soldiers.
    (b) References. Required and related publications and prescribed and 
referenced forms are listed in appendix A.
    (c) Explanation of abbreviations and terms. Abbreviations and 
special terms used in this regulation are explained in the glossary.
    (d) Responsibilities. (1) The Deputy Chief of Staff for Personnel 
will set policy on processing debt claims against soldiers.
    (2) The Commanding General, U.S. Army Community and Family Support 
Center (CG, USACFSC) will--
    (i) Set procedures for processing debt claims against soldiers.
    (ii) Process debt claims received at USACFSC regarding soldiers.
    (iii) Carry out the objectives of this regulation to protect the 
rights of the soldier, his or her family members, and the interests of 
the Army.
    (iv) Advise and assist the directors of Headquarters, Department of 
the Army (HQDA) agencies, commanders of the major Army commands, and 
other commanders on matters pertaining to indebtedness of soldiers.
    (3) Officers having general court-martial jurisdiction will--
    (i) Ensure special emphasis on the indebtedness issue is given in 
command information programs. This includes soldiers being informed of 
their responsibility to manage their personal affairs satisfactorily and 
pay their debts promptly. Also, inform soldiers of the possible 
consequences of failure to pay their debts.
    (ii) Take action on requests to file unfavorable information in a 
soldier's official personnel file. (See Sec. 513.3.)
    (4) First level field grade commanders will monitor instances of 
soldiers' repeated failure to pay debts that are brought to their 
attention. These commanders will take action, when proper.
    (5) Immediate commanders will--
    (i) Ensure that soldiers are informed of the following:
    (A) DA policy on indebtedness.
    (B) The possible consequences of failure to pay their debts.
    (ii) Manage the processing of debt claims per the terms of this 
regulation.
    (iii) Answer all correspondence received from CG, USACFSC and other 
DA officials.
    (iv) Answer all correspondence received directly from claimants and 
third parties (for example, Members of Congress). The commander will not 
include unreleasable information without the soldier's written consent. 
This complies with the Privacy Act of 1974. (See AR 340-21.) Commanders 
should ask the Staff Judge Advocate (SJA) for guidance in unusual or 
difficult situations.
    (v) Inform the first level field grade commander of instances of 
soldiers' repeated failure to pay their debts. Also, point out actions 
taken or contemplated to correct the situation.
    (vi) Refer correspondence or queries received from news media 
organizations to the unit, installation, or command public affairs 
officer for response.
    (6) The unit, installation, or command public affairs officer will--
    (i) Answer correspondence and queries received from news media 
organizations.
    (ii) Coordinate with the SJA before making any response.
    (e) Policy. (1) Soldiers are required to manage their personal 
affairs satisfactorily and pay their debts promptly. Failure to do so 
damages their credit reputation and affects the Army's public image. The 
Army, however, has no legal authority to force soldiers to pay their 
debts. Also, the Army cannot divert any part of a soldier's pay even 
though payment of the debt was decreed by a civil court. Only civil 
authorities can enforce payment of private debts.

[[Page 71]]

    (2) Debt claims against corporations and organizations to which a 
soldier belongs, or of which a soldier is an officer, will not be 
processed under this regulation. In this situation, the matter should be 
pursued in civil court. If a judgment is received specifically against 
the soldier, then this regulation will apply.
    (3) Creditors who follow Sec. 513.4 will have their debt complaints 
processed.
    (4) Requests for help that do not follow Sec. 513.4 will be returned 
without action with an explanation as discussed in Sec. 513.4(d).
    (5) The Army will revoke debt processing privileges for creditors 
who--
    (i) Refuse to abide by this regulation.
    (ii) Try to use the Army as a debt collection agency. (See 
Sec. 513.4(e)).
    (6) The Army does not try to judge or settle disputed debts, or 
admit or deny whether claims are valid. The Army will not tell claimants 
whether any adverse action has been taken against a soldier as a result 
of the claim.
    (7) If a soldier is not trying to resolve unpaid debts promptly or 
complaints of repeated failure to pay debts are received, commanders 
will consider the actions shown below. (See Secs. 513.2(a)(3)(xv) and 
513.3.)
    (i) Making the failure a matter of permanent record.
    (ii) Denial of reenlistment (enlisted personnel).
    (iii) Administrative separation from the Service.
    (iv) Punishment under the Uniform Code of Military Justice (UCMJ). 
When proper, such misconduct may be charged under articles 92, 123, 133, 
or 134 of the UCMJ.
    (8) Checks that are dishonored for any reason remain proof of 
indebtedness until--
    (i) Made good.
    (ii) Proven to be the error of the financial institution on which 
drawn, or the error of any other person or institution; such action then 
absolves the soldier of fault. (See Sec. 513.2(c).)
    (9) When necessary, commanders and soldiers are urged to seek help 
from the SJA.
    (f) Banks and credit unions. (1) Banks and credit unions located on 
military bases must apply Department of Defense (DOD) Standards of 
Fairness (app B) before making loans or credit agreements. Banks and 
credit unions that do not meet this requirement will be denied help in 
processing debt complaints.
    (2) If soldiers are referred to off-base branches of an on-post bank 
or credit union, the branches also must comply with the Standards of 
Fairness before making loans or credit agreements.
    (3) Interest rates and service charges for loans made by oversea 
military banking facilities are set by DOD.
    (g) Fair Debt Collection Practices Act (section 1692, title 15, 
United States Code (15 U.S.C. 1692)). (1) A debt collector may not 
contact any person other than the soldier, his or her lawyer or legal 
counsel, or the creditor about any debt collection. The debt collector, 
however, may contact the employer if he or she has a written and signed 
consent from the soldier, or a court order permitting contact. The 
written consent must include the debt collector's name. It is illegal 
for debt collectors to use another name when collecting debts.
    (2) Debt collectors who have obtained the needed written consent or 
court order and who have followed Sec. 513.4 will have their debt 
complaints processed.
    (3) Creditors who collect only on their own behalf are exempt from 
the Act.
    (h) Individual repayment plan of the Bankruptcy Act. Chapter XIII of 
the Bankruptcy Act (11 U.S.C. 1301, et seq.) provides for the protection 
and relief of individuals with a regular income. It also sets rules for 
paying debts under the supervision of U.S. Federal District Courts. Care 
must be taken not to confuse ``bankruptcy'' and ``individual repayment 
plans'' in order not to infringe on the rights of the soldier.
    (i) Locator service. (1) Installations will honor requests for 
central locator service by a banking office (AR 210-135) or credit union 
(AR 210-24) located on a military installation. This service will be 
free when banking offices and credit unions cite AR 37-60. This service 
will be used to locate persons for settling accounts, checks that did 
not clear, and delinquent loans. The U.S. Army Finance and Accounting 
Center (USAFAC), Indianapolis, IN 46249-1016, will assist these banking 
offices and

[[Page 72]]

credit unions to locate soldiers who cannot be located locally.
    (2) Current military addresses for all soldiers may be obtained by 
writing the Commander, U.S. Army Enlisted Records and Evaluation Center, 
Fort Benjamin Harrison, IN 46249-5301. All requests must include the 
soldier's full name, rank, and social security number (SSN). They should 
include the date and place of birth if the SSN is not known. A check or 
money order for $3.50 payable to the Treasurer of the United States must 
be enclosed with each request. (See AR 37-60.)
    (3) A debt collector should not write to the U.S. Army Enlisted 
Records and Evaluation Center (USAEREC) if he or she knows the soldier 
is represented by a civilian lawyer or military legal counsel. However, 
the debt collector may write to USAEREC if he or she--
    (i) Does not know or cannot easily find out the name and address of 
the lawyer or legal counsel.
    (ii) Does not receive a response from the lawyer or legal counsel.
    (4) If a debt collector writes to USAEREC, a postcard cannot be 
used. Also, the request cannot state that the locator service is being 
sought in order to collect a debt. These actions would violate the Fair 
Debt Collection Practices Act (Sec. 513.1(g)).

[51 FR 7269, Mar. 3, 1986; 51 FR 8824, Mar. 14, 1986, as amended at 51 
FR 17961, May 16, 1986]



Sec. 513.2  Administrative procedures for processing complaints.

    (a) Commander's actions. Upon receipt of a debt complaint, the 
commander will--
    (1) Review the case to ensure that the terms of this regulation have 
been met.
    (2) Consult the SJA if needed.
    (3) Take the following actions:
    (i) If any of the terms of Sec. 513.4(c) have not been met by the 
creditor, return the complaint. Tell the writer that no action will be 
taken until those terms are met.
    (ii) Upon receipt of subsequent inquiries from USACFSC, Members of 
Congress, or any other source, inform the writer that--
    (A) The creditor has been told that his or her request lacked data 
or documentation.
    (B) The commander regrets that he or she cannot process the 
complaint until the creditor supplies the necessary data.
    (C) A reply previously has been made to the creditor. Enclose a copy 
of the reply.
    (iii) If the creditor refuses or repeatedly fails to comply with any 
of these requirements, refer the complete case through channels to the 
Commander, USACFSC, ATTN: DACF-IS-PA, ALEX VA 22231-0522. If it is 
believed the creditor's debt processing privileges should be revoked, 
include a recommendation stating the reasons.
    (iv) If the soldier was not given full disclosure information when 
the debt was incurred, refer him or her to the SJA office. The SJA 
office will advise if the soldier has a right to file suit against the 
creditor. The soldier may be entitled to twice the amount of the finance 
charge, for a minimum of $100 up to a maximum of $1,000, plus court 
costs and lawyer fees. This does not apply to debts incurred before 30 
June 1969.
    (v) If in doubt as to the legality of the contract, consult the SJA. 
This action is to ensure that the contract terms do not violate Federal 
and State laws.
    (vi) Accept as valid proof, claims based on court judgments, orders, 
or decrees.
    (vii) If the debt or the amount of the debt is disputed or denied by 
the soldier, reply directly to the creditor. Tell him or her that Army 
policy requires that disputed debts be settled by civil courts. Do not, 
in the reply, try to judge or settle any disputed debts, or admit or 
deny the validity of the claim.
    (viii) If the creditor has met all the requirements discussed in 
Sec. 513.4, interview the soldier.
    (A) Ensure that the soldier is properly advised of his or her rights 
under the Privacy Act of 1974. DA Form 4817-R (Consent/Nonconsent To 
Disclose Personal Information) will be completed.
    (B) Notify the soldier of the debt complaint.
    (C) Explain that the Army requires that soldiers pay their debts 
promptly.

[[Page 73]]

Failure to do so damages credit reputations and affects the Army's 
public image. Also, explain that the willful failure to resolve unpaid 
debts may result in administrative or punitive actions as described in 
Sec. 513.3.
    (D) Tell the soldier of his or her legal rights and duties. If 
appropriate, advise the soldier of his or her rights under article 31, 
UCMJ. Also, inform the soldier that counseling service is available 
under the Legal Assistance Program (AR 27-3).
    (E) Review all available facts including the soldier's defenses, 
rights, and counterclaims.
    (F) Urge the soldier to seek budget counseling and consumer 
protection advice, if proper. These services may be obtained from on-
post credit unions, Army Community Service Program Counselors (AR 608-
1), or through financial management seminars or workshops.
    (G) Help the soldier in settling or in liquidating the debt. Give 
the soldier a copy of DA Pam 360-520 if proper. Answer any questions 
that he or she might have.
    (H) Have the soldier sign a statement allowing or forbidding release 
of information to the claimant (DA Form 4817-R). AR 340-17 and AR 340-
21, paragraph 3-3 govern this.
    (I) Ask the soldier about his or her intentions. Give the soldier 
the chance to furnish a voluntarily signed statement admitting or 
denying the complaint or declining to do either.
    (ix) Advise the claimant promptly that the soldier has been told of 
the complaint.
    (x) Summarize the soldier's intentions if the soldier allows release 
of the information.
    (xi) If proper, advise the claimant that indebtedness disputes must 
be resolved in a civil court of competent jurisdiction.
    (xii) Ask the claimant to write, if necessary, directly to the 
soldier or his or her commander.
    (xiii) Retain the statement allowing or forbidding release of 
information to the claimant with the case file for future reference. 
(See Sec. 513.3)
    (xiv) Monitor actions closely to ensure promises made to claimants 
are being met.
    (xv) Consider administrative or punitive action, if proper (See 
Secs. 513.1(e)(7) and 513.3.)
    (xvi) Inform the first level field grade commander of instances of 
soldiers' repeated failure to pay their debts. Also, point out actions 
taken or contemplated to correct the situation.
    (b) Procedures for routing debt complaints. (1) Send debt complaints 
through proper channels to the soldier's commander for action.
    (2) If the soldier is a patient attached to a medical holding 
detachment (MHD), the complaint will be sent there for action. The 
commander of the MHD will take action per this regulation.
    (3) The command receiving the complaint will acknowledge the letter 
and tell the writer of the referral. DA Form 209 (Delay, Referral, or 
Follow-Up Notice) may be used for this purpose.
    (4) All correspondence to the President, received from outside of 
DOD, will be processed per AR 1-9.
    (5) Send complaints to the soldier's new duty station if the soldier 
has been reassigned. Advise the claimant of the soldier's reporting date 
and the unit address to which correspondence should be sent.
    (6) See Sec. 513.5 for procedures governing processing of claims for 
nonactive duty or discharged personnel.
    (c) Processing debt complaints based on dishonored checks. (1) 
Writing checks against an account with no or not enough funds is a 
serious matter. It may be a misdemeanor or a felony. This depends on the 
amount of the check and the laws or statutes of the jurisdiction where 
the check is presented for payment. The soldier is responsible for 
making sure that money is in his or her bank account to cover checks 
written on that account. Writing bad checks may result in disciplinary 
or administrative action. Whether or not such action is taken, a 
dishonored check for not enough funds remains proof of an indebtedness 
except as provided in Sec. 513.1(e)(8).
    (2) Commanders must answer all check complaints, other than those 
discussed in Sec. 513.2(c)(3), even if such complaints concerns checks 
errors caused by oversight or negligence. (AR 210-60 outlines ways for 
handling dishonored

[[Page 74]]

checks written on Army installations and in Army facilities.)
    (3) Checks made good within 5 days of notice do not require any 
action if the complaint is based on--
    (i) Bank or Government error.
    (ii) Failure to date the check.
    (iii) Inconsistent or not legible amounts shown on the check.
    (iv) Lack of legible signature.
    (4) Bad checks written by family members are not processed under 
this regulation except in the following instance. The SJA finds that 
these checks stand for debts for which the soldier may be held 
personally liable under Federal or State laws (for example, checks 
written for necessities such as rent, utilities, or food).
    (d) Inquiries from USACFSC or DA officials. The commander must--
    (1) Give USACFSC or DA officials complete data on all inquiries.
    (2) Seek the advice of the SJA before replying to a court order if 
necessary.
    (3) State ``not applicable'' to items that do not apply.
    (4) If applicable, advise USACFSC or DA officials--
    (i) Whether the soldier acknowledges the debt.
    (ii) Of the corrective action taken (to include the amounts and 
dates payments will be made).
    (iii) Of the method of payment (for example, personal check).
    (iv) Whether the soldier allowed or forbade release of the 
information given. (See DA Form 4817-R.)
    (v) Whether the soldier is following the terms of a court order.
    (vi) Whether the soldier's actions follow Army policy as stated in 
this regulation.
    (vii) In the reply, include your name, unit address, and your 
automatic voice network (AUTOVON) number. If no AUTOVON Number is 
available, include a commercial or other number where the unit can be 
reached.
    (5) Return to USACFSC or DA officials inquiries received after the 
soldier has been transferred. Include a copy of his or her permanent 
change of station orders.

[51 FR 7270, Mar. 3, 1986; 51 FR 8824, Mar. 14, 1986]



Sec. 513.3  Administrative and punitive actions.

    (a) Considerations. Commanders will not tolerate irresponsibility, 
neglect, dishonesty, or evasiveness. Failure to pay debts promptly and 
honorably may require disciplinary or administrative action. If a 
soldier is not trying to resolve unpaid debts promptly or complaints of 
repeated failure to pay debts are received, commanders will consider--
    (1) Making it a matter of permanent record (Sec. 513.3(b)).
    (2) Denial of reenlistment (enlisted members) (AR 601-280).
    (3) Administrative separation from the Service (AR 635-100 or AR 
635-200).
    (4) Punishment under the UCMJ. (See Sec. 513.1(e)(7).)
    (b) Official personnel files. (1) The Army requires that all-
inclusive information of the qualifications of its soliders be on file. 
This prevents selection of soldiers for positions of leadership, trust, 
and responsibility whose qualifications are questionable.
    (2) Documents/records created or received in connection with debt 
complaints will be filed per AR 600-37 and the Army Functional Files 
System (AR 340-2 and AR 340-18).
    (3) The soldier may show his or her negligence, disregard, or 
unwillingness to resolve the matter by repeatedly failing to pay his or 
her debts. In these cases, the commander will decide whether to place a 
letter of reprimand, admonition, or censure in the soldier's official 
personnel files. AR 600-37, chapter 2, governs action taken to file 
unfavorable information.
    (4) If information does not merit filing in the soldier's official 
personnel files, the commander will--
    (i) Continue to monitor the situation.
    (ii) Furnish further guidance and help.
    (iii) Consider later action (Sec. 513.3(b)(3)) if warranted by 
further evidence.



Sec. 513.4  Conditions creditors must meet before getting help in debt processing.

    (a) Statutory and other regulatory requirements. (1) The Truth-in-
Lending Act, Pub. L. 90-321 (15 U.S.C. 1601), lists the general 
disclosure rules that must

[[Page 75]]

be met by creditors. It does not cover private parties who extend credit 
only rarely to help a person. (See Sec. 513.4(f)(1)).
    (2) Federal Reserve Board Regulation Z (12 CFR part 226) lists 
specific disclosure rules for all credit transactions under the Truth-
in-Lending Act.
    (3) Certain States have rules that may apply to credit transactions 
in lieu of Federal Reserve Board Regulation Z. However, the Federal 
Reserve Board must first decide if the State sets largely the same rules 
and enforcement measures. States currently exempted from Regulation Z 
are Connecticut, Maine, Massachusetts, Oklahoma, and Wyoming.
    (4) DOD Standards of Fairness (app B) define fair and just dealings 
with soldiers. DA Pam 360-520, chapter 4, contains simplified 
explanations of these standards. Note that certain debt complaints are 
exempt (Sec. 513.4(f)).
    (5) Certificate of Compliance certifies the creditor has complied 
with the full disclosure requirements of Federal or State laws and 
regulations, State laws regarding contact with the employer of the 
debtor, and the application of the Standards of Fairness to the consumer 
credit transaction.
    (6) Full disclosure information shows what the soldier should know 
about contract terms.
    (7) The Fair Debt Collection Practices Act contains other conditions 
a creditor must meet. (See Sec. 513.1(g)).
    (b) State laws. Florida, Louisiana, Maryland, Massachusetts, New 
York, North Carolina, and Wisconsin have passed laws that forbid 
creditors from contacting employers. This includes commanders, unless 
certain conditions are met. These conditions are the reduction of a debt 
to court judgment or the written permission of a debtor. The judgment 
must conform to the Soldiers' and Sailors' Civil Relief Act of 1940, as 
amended (50 U.S.C. app, section 501 et seq., (1970)) if applicable. (See 
DA Pam 27-166.) Other States may enact similar laws; if they do, the 
same conditions will apply. Creditors wanting to make use of the debt 
processing privilege must first certify their compliance with the 
relevant State's law about contact with an employer. These laws, 
however, do not apply if the debtor is located in a State that has not 
passed such a law.
    (c) Debt processing. (1) Creditors, other than private parties 
described in 513.4(f)(1), must send--
    (i) A signed copy of the Certificate of Compliance with DOD 
Standards of Fairness (app B) showing compliance with one of the 
following:
    (A) The Truth-in-Lending Act.
    (B) Federal Reserve Board Regulation Z.
    (C) State regulations.
    (ii) A true copy of the signed contract.
    (iii) The general and specific disclosure information given the 
soldier before signing the contract.
    (iv) A copy of a judgment or written permission from the soldier 
allowing the creditor to contact his or her employer about the debt, if 
applicable. (See Sec. 513.4(b)).
    (v) Photocopies of actual correspondence or documentary proof 
showing that every effort has been made to get payment by direct contact 
with the soldier. The creditor must give the soldier a chance to answer 
each inquiry. (Forty-five days for those in the contiguous 48 States and 
the District of Columbia; 60 days for all others.)
    (2) Foreign-owned companies having debt complaints must send--
    (i) A true copy of the terms of the debt.
    (ii) A certification that they have met the DOD Standards of 
Fairness.
    (iii) An English translation of the above (if not already in 
English).
    (iv) Documentation as in Secs. 513.4(c)(1) (iv) and (v).
    (3) Creditors not subject to Regulation Z, such as public utility 
companies, will send a certification with their request. It must state 
that no interest, finance charge, or other fee exceeds that permitted by 
the laws of the State in which the service was requested.
    (4) Creditors not subject to the Truth-in-Lending Act must send--
    (i) Legible copies of actual correspondence. (See 
Sec. 513.4(c)(1)(v)).
    (ii) Documentary proof showing that every effort has been made to 
get the payment by direct contact with the soldier.

[[Page 76]]

    (5) Creditors who have followed these terms may contact the 
soldier's commander for help. If the commander is contacted, the 
creditor must give the commander a chance to answer the inquiry. (Forty-
five days for those in the contiguous 48 States and the District of 
Columbia; 60 days for all others.) If unsuccessful, after reasonable 
efforts to collect the debt, creditors may request help from USACFSC. In 
such cases, the information must be the same as that sent the commander. 
(See Sec. 513.4(c)(6)). The request should be sent to the Commander, 
USACFSC, ATTN: DACF-IS-PA, ALEX VA 22331-0522.
    (6) All requests for help must include--
    (i) The soldier's full name, rank, and SSN.
    (ii) Date and place of birth, if SSN is not known.
    (iii) The amount and date of the original debt.
    (iv) The terms of payment.
    (v) The balance due.
    (vi) Documents described in Sec. 513.4(c) (1) through (4) which 
apply.
    (7) Separate letters should be written on each account for prompt 
and efficient processing.
    (8) Letters lacking data will be returned for added documents.
    (d) Debt complaints returned to creditors without action. Requests 
for help in processing debt complaints will be returned without action 
with an explanation if--
    (1) Creditors did not enclose the following:
    (i) Documents showing compliance with the Truth-in-Lending Act, 
Federal Reserve Board Regulation Z, or State regulation.
    (ii) Signed copies of the Certificate of Compliance with DOD 
Standards of Fairness.
    (iii) A completed copy of form with the Full Disclosure Information. 
(See Sec. 513.4(a)(6).)
    (iv) Signed copies of the contract.
    (v) Legible copies of actual correspondence or documentary proof 
showing that every effort has been made to get the payment by direct 
contact with the soldier. (See Sec. 513.4(c)(1)(v).)
    (2) The soldier is located in a State whose laws forbid creditors 
from contacting employers.
    (3) The claim is obviously false or misleading.
    (4) The finance charge does not conform to the State law where the 
contract is signed.
    (5) A U.S. company operating overseas exceeds the lowest interest 
rate of the State or States where chartered or doing business in the 
United States.
    (6) The contract or loan agreement provides that the debtor must pay 
the creditor's attorney fees, unless the following limitations in 
Sec. 513.4(d)(6) (i) through (iii) are included. No attorney's fee may 
be charged for services done by a salaried employee of the creditor.
    (i) The fees will have to be paid only in the event of a default by 
the soldier.
    (ii) The fees will have to be paid only if a lawsuit is filed.
    (iii) The fees will not exceed 20 percent of the amount found due.
    (7) A penalty for prepayment has been charged.
    (8) A charge has been made for an insurance premium without 
satisfactory proof of--
    (i) A policy or insurance certificate having been issued.
    (ii) Delivery of a policy or certificate to the soldier within 30 
days of issuance.
    (9) The late charge is in excess of 5 percent of the late payment, 
or $5, whichever is the lesser amount. Only one late charge may be made 
for any late installment. Late charges will not be made where an 
allotment has been timely filed, but payment has been delayed.
    (10) The creditor has not given the soldier a chance to answer a 
previous inquiry. (Forty-five days for those in the contiguous 48 States 
and the District of Columbia; 60 days for all others.)
    (11) The claimant is a debt collector without a court order or a 
signed letter of consent by the soldier. (See Sec. 513.1(g).)
    (12) The debt is covered by an order of a bankruptcy court.
    (e) Cancellation of debt processing privilege. (1) Creditors who 
refuse or fail repeatedly to follow these terms will

[[Page 77]]

be referred through channels to the Commander, USACFSC, Attn: DACF-IS-
PA, Alex, Va 22331-0522, by the commander.
    (2) The CG, USACFSC will--
    (i) Cancel debt processing privileges if the queries clearly show 
that the creditor is--
    (A) Not conforming with this regulation.
    (B) Trying to make unreasonable use of the debt processing 
privilege.
    (C) Trying to use the Army as a collection agency.
    (ii) Inform commanders worldwide by electrical message that the debt 
processing privilege of a specific creditor has been revoked.
    (iii) Inform the creditor that his or her debt processing privilege 
has been revoked and state the reasons for this action.
    (f) Exemptions from Full Disclosure and Standards of Fairness. The 
debt complaints discussed below are exempt from the Full Disclosure and 
Standards of Fairness. This does not prevent the debtor from questioning 
service charges and negotiating a fair and reasonable settlement.
    (1) Claims from private parties selling personal items (for example, 
car, furniture, appliances) on a one-time basis.
    (2) Claims from companies or individuals giving services in which 
credit is given only to help the soldier (for example, utilities, milk, 
laundry, medical, and related services).
    (3) Claims by endorsers, comakers, or lenders who intend only to 
help the soldier in getting credit. These claims, however, may not 
benefit the above through receipt of interest or otherwise.
    (4) Contract for the purchase, sale, or rental of real estate.
    (5) Claims in which the total unpaid amount does not exceed $50.
    (6) Claims based on a revolving or open-end credit account. The 
account must show--
    (i) The periodic interest rate and the equivalent annual rate.
    (ii) The balance to which the interest is applied to compute the 
charge.
    (7) Claims as security liens on real property (for example, a 
house). This does not include improvements or repairs.
    (8) Attorneys representing parties under Sec. 513.4(f) (1) through 
(7).



Sec. 513.5  Procedures governing nonactive duty or discharged personnel.

    (a) Procedures governing nonactive duty personnel. (1) Debt 
complaints against former soldiers or others not on active duty will be 
sent to the Commander, U.S. Army Reserve Personnel Center (ARPERCEN), 
ATTN: DARP-PSE-VS, 9700 Page Boulevard, St. Louis, MO 63132-5200.
    (2) After ARPERCEN verifies the status, the following officials will 
act as prescribed below.
    (i) Chief, National Guard Bureau, Wash DC 20310-2500, for soldiers 
of the Army National Guard.
    (ii) The area commander concerned for Ready Reservists assigned to 
troop program units under their control. (See AR 140-1, para 1-6.)
    (iii) ARPERCEN for nonunit soldiers assigned to Control Groups of 
the Ready Reserve, Standby Reserve, and Retired Reserve.
    (3) The officials cited in Sec. 513.5(a)(2) will ensure that debt 
complaints are delivered to the person concerned, using military 
channels. When the complaint cannot be delivered through military 
channels, it will be sent to the last known mailing address of the 
person by certified mail, using PS Form 3811 (Return Receipt, 
Registered, Insured, and Certified Mail). It should be marked Return 
Receipt Requested--Deliver to Addressee Only. This form is available at 
U.S. post offices.
    (4) After delivery of correspondence, the responsible official will 
advise the claimant--
    (i) Of the date and method of delivery.
    (ii) That the military department does not control the personal 
affairs of nonactive duty personnel. These personnel usually are in a 
civilian status and are not subject to military discipline. Therefore, 
the matter has been left to the person's discretion.
    (iii) Of the person's mailing address only if the conditions in 
Sec. 513.5(c) are met.

[[Page 78]]

    (b) Procedures governing discharged personnel. (1) Debt complaints 
against persons who have been discharged from the service (that is, 
those now holding no military status) will be sent to ARPERCEN.
    (2) ARPERCEN will return the correspondence, and all accompanying 
documentation, and advise the claimaint--
    (i) That the person is no longer a member of the Army or the Reserve 
Components.
    (ii) Of the date of discharge.
    (iii) That the Army no longer has control or authority over the 
discharged personnel. Therefore, the Army can take no further action in 
this matter.
    (iv) Of the person's mailing address only if the conditions in 
Sec. 513.5(c) are met.
    (c) Conditions for disclosing mailing address. Nonactive duty and 
discharged personnel's mailing addresses will not be disclosed unless--
    (1) The person consents in writing to the release of his or her 
address.
    (2) The claimant sends a court order directing the release of the 
address.
    (3) Any other reason that does not constitute a violation of the 
Privacy Act of 1974.
    (d) Retired personnel. (1) The claimant may be advised that 
correspondence may be sent to the retired person as follows:
    (i) Place correspondence in a stamped envelope with the retired 
person's name typed or printed on the envelope.
    (ii) Place a stamped envelope in a second envelope and mail to 
Commander, ARPERCEN, Attn: DARP-PSE-VS, 9700 Page Boulevard, St. Louis, 
MO 63131-5200.
    (2) ARPERCEN will forward the correspondence to the retired person, 
but cannot release the address per provisions of the Privacy Act of 
1974.

                   Appendix A to Part 513--References

                                Section I

    Required Publications.

                                AR 340-2

    Maintenance and Dispostion of Records in TOE Units of the Active 
Army, the Army Reserve and the National Guard. (Cited in 
Sec. 513.3(b)(2)).

                                AR 340-17

    Release of Information and Records from Army Files. (Cited in 
Sec. 513.2(a)(3)(viii)(H)).

                                AR 340-18

    The Army Functional Files System. (Cited in Sec. 513.3(b)(2)).

                                AR 340-21

    The Army Privacy Program. (Cited in Secs. 513.1(d)(5)(iv) and 
513.2(a)(3)(viii)(H)).

                                AR 600-37

    Unfavorable Information. (Cited in Sec. 513.3(b) (2) and (3)).

                              DA Pam 27-166

    Soldiers' and Sailors' Civil Relief Act. (Cited in Sec. 513.4(b)).

                             DA Pam 360-520

    Credit: Master or Servant. (Cited in Secs. 513.2(a)(3)(viii)(G) and 
513.4(a)(4)).
    Uniform Code of Military Justice. (Cited in Secs. 513.1(e)(7)(iv), 
513.2(a)(3)(viii)(D) and 513.3(a)(4)).

                               Section II

    Related Publications.
    A related publication is merely a source of additional information. 
The user does not have to read it to understand this regulation.

                                 AR 1-9

    White House Liaison, Communications, and Inspections.

                                 AR 11-2

    Internal Control Systems.

                                 AR 27-3

    Legal Assistance.

                                AR 37-60

    Pricing for Materiel and Services.

                                AR 140-1

    USAR--Mission, Organization, and Training.

                                AR 210-24

    Credit Unions.

                                AR 210-60

    Control and Prevention of Abuse of Check Cashing Privileges.

                               AR 210-135

    Banking Service on Army Installations.

                               AR 601-280

    Army Reenlistment Program.

[[Page 79]]

                                AR 608-1

    Army Community Service Program.

                                AR 608-99

    Family Support, Child Custody, and Paternity.

                               AR 635-100

    Officer Personnel (Separations).

                               AR 635-200

    Enlisted Personnel (Separations).

                               DODD 1344.9

    Indebtedness of Military Personnel.
    Federal Reserve Board Regulation Z Truth in Lending.

                               Section III

    Prescribed Forms.

                             DA Form 4817-R

    Consent/Nonconsent to Disclose Personal Information. (Cited in 
Secs. 513.2(a)(3)(viii) (A) and (H), and 513.2(d)(4)(iv)).

                               Section IV

    Referenced Forms.

                               DA Form 209

    Delay, Referral, or Follow-Up Notice.

                              PS Form 3811

    Return Receipt, Registered, Insured, and Certified Mail.

              Appendix B to Part 513--Standards of Fairness

    B-1. No finance charge contracted for, made, or received under any 
contract shall be in excess of the charge which could be made for such 
contract under the law of the place in which the contract is signed in 
the United States by the military member.
    a. In the event a contract is signed with a U.S. company in a 
foreign country, the lowest interest rate of the State or States in 
which the company is chartered or does business shall apply.
    b. However, interest rates and service charges applicable to 
overseas military banking facilities will be established by the 
Department of Defense.
    B-2. No contract or loan agreement shall provide for an attorney's 
fee in the event of default unless suit is filed, in which event the fee 
provided in the contract shall not exceed 20 percent of the obligation 
found due. No attorney fees shall be authorized if the attorney is a 
salaried employee of the holder.
    B-3. In loan transactions, defenses which the debtor may have 
against the original lender or its agent shall be good against any 
subsequent holder of the obligation. In credit transactions, defenses 
against the seller or its agent shall be good against any subsequent 
holder of the obligation, provided that the holder had actual knowledge 
of the defense or under conditions where reasonable inquiry would have 
apprised the holder of this fact.
    B-4. The military member shall have the right to remove any security 
for the obligation beyond State or national boundaries if the military 
member or family moves beyond such boundaries under military orders and 
notifies the creditor, in advance of the removal, of the new address 
where the security will be located. Removal of the security shall not 
accelerate payment of the obligation.
    B-5. No late charge shall be made in excess of 5 percent of the late 
payment, or $5 whichever is the lesser amount, or as provided by law or 
applicable regulatory agency determination. Only one late charge may be 
made for any tardy installment. Late charges will not be levied where an 
allotment has been timely filed, but payment of the allotment has been 
delayed. Late charges by overseas banking facilities are a matter of 
contract with the Department of Defense. Late charges by Federal credit 
unions are set at 20 percent of the interest due with a minimum of not 
less than 5 cents.
    B-6. The obligation may be paid in full at any time or through 
accelerated payments of any amount. There shall be no penalty for 
prepayment and in the event of prepayment that portion of the finance 
charges which has inured to the benefit of the seller of the creditor 
shall be prorated on the basis of the charges which would have been 
ratably payable had finance charges been calculated and payable as equal 
periodic payments over the terms of the contract and only the prorated 
amount to the date of prepayment shall be due. As an alternative the 
``Rule of 78'' may be applied.
    B-7. If a charge is made for loan insurance protection, it must be 
evidenced by delivery of a policy or certificate of insurance to the 
military member within 30 days.
    B-8. If the loan or contract agreement provides for payments in 
installments, each payment, other than the down payment, shall be in 
equal or substantially equal amounts, and installments shall be 
successive and of equal or substantially equal duration.
    B-9. If the security for the debt is repossessed and sold in order 
to satisfy or reduce the debt, the repossession and resale will be 
governed by the laws of the State in which the security is requested.
    B-10. A contract for personal goods and services may be terminated 
at any time before delivery of the goods or services without charge to 
the purchaser. However, if goods

[[Page 80]]

made to the special order of the purchaser result in preproduction 
costs, or require preparation for delivery, such additional costs will 
be listed in the order form or contract.
    a. No termination charge will be made in excess of this amount. 
Contracts for delivery at future intervals may be terminated as to the 
undelivered portion.
    b. The purchaser shall be chargeable only for that proportion of the 
total cost which the goods or services delivered bear to the total goods 
called for by the contract. (This is in addition to the right to rescind 
certain credit transactions involving a security interest in real estate 
provided by Pub. L. 90-321, ``Truth-in-Lending Act,'' section 125 (15 
U.S.C. 1601 (1976)) and the Federal Reserve Board Regulation Z (12 CFR 
part 226 and Secs. 226.3, 226.9 (1978)).

                    Appendix C to Part 513--Glossary

Section I--Abbreviations

ARNGUS: Army National Guard of the United States
ARPERCEN: U.S. Army Reserve Personnel Center
AUTOVON: automatic voice network
DA: Department of the Army
DOD: Department of Defense
HQDA: Headquarters, Department of the Army
MHD: medical holding detachment
SJA: staff judge advocate
SSN: social security number
UCMJ: Uniform Code of Military Justice
USACFSC: U.S. Army Community and Family Support Center
USAEREC: U.S. Army Enlisted Records and Evaluation Center
USAFAC: U.S. Army Finance and Accounting Center
USAR: U.S. Army Reserve
U.S.C. U.S. Code

Section II--Terms


Check: A written order, usually on a standard printed form, directing a 
bank or credit union to pay money.
Creditor: Any person or business that offers or extends credit, or to 
whom or to which a debt is owed. This term includes lending institutions 
(such as centralized charge systems) which, although not parties to the 
original transactions, seek help in collecting debts.
Debt: Any legal debt acknowledged by the soldier, or in which there is 
no reasonable dispute as to the facts or law, or which has been reduced 
to judgment.
Debt collector: Any person or business that solely collects debts owed 
to another person or business. (A debt collector is not a creditor.)
Disputed debt: Any debt, not reduced to a judgment, in which there is a 
genuine dispute between the parties as to the facts or law relating to 
the debt which would affect the obligation the soldier to pay.
Family member: As used in this regulation, an individual who qualifies 
for dependency benefits under certain conditions as set by Army 
regulations. (For example, spouse or unmarried child, to include 
stepchildren, and adopted or illegitimate children.)
Judgment: Any decision given by a court of justice or other competent 
tribunal as a result of proceedings instituted therein. As defined, a 
judgment includes any administrative enforcement order 
(Vollstreckungsanordnung) issued by the German federal post office 
(Deutsche Bundespost) regarding unpaid telephone bills. Such orders come 
within the coverage of this regulation regardless of where the soldier 
is stationed.
Soldier: Commissioned and warrant officers and enlisted personnel.

[51 FR 7275, Mar. 3, 1986; 51 FR 8824, Mar. 14, 1986]



PART 516--LITIGATION--Table of Contents




                           Subpart A--General

Sec.
516.1  Purpose.
516.2  References.
516.3  Explanation of abbreviations and terms.
516.4  Responsibilities.
516.5  Restriction on contact with DOJ.
516.6  Appearance as counsel.
516.7  Mailing addresses.

                      Subpart B--Service of Process

516.8  General.
516.9  Service of criminal process within the United States.
516.10  Service of civil process within the United States.
516.11  Service of criminal process outside the United States.
516.12  Service of civil process outside the United States.
516.13  Assistance in serving process overseas.
516.14  Service of process on DA or Secretary of Army.

             Subpart C--Reporting Legal Proceedings to HQDA

516.15  General.
516.16  Individual and supervisory procedures upon commencement of legal 
          proceedings.
516.17  SJA or legal adviser procedures.
516.18  Litigation alleging individual liability.
516.19  Injunctive relief.

[[Page 81]]

516.20  Habeas Corpus.
516.21  Litigation against government contractors.
516.22  Miscellaneous reporting requirements.
516.23  Litigation reports.
516.24  Preservation of evidence.
516.25  DA Form 4.
516.26  Unsworn declarations under penalty of perjury.

                     Subpart D--Individual Liability

516.27  Scope.
516.28  Policy.
516.29  Federal statutes and regulations.
516.30  Procedures for obtaining certification and DOJ representation.
516.31  Private counsel at government expense.
516.32  Requests for indemnification.

Subpart E--Legal Proceedings Initiated by the United States Medical Care 
                           and Property Claims

516.33  General.
516.34  Referral of medical care and property claims for litigation.
516.35  Preparation of claims for litigation.

                        Assertion of Other Claims

516.36  Referral to Litigation Division.
516.37  Proceedings to repossess government real property or quarters or 
          to collect delinquent rent.

                   Subpart F--Environmental Litigation

516.38  Scope.
516.39  Duties and procedures.

   Subpart G--Release of Information and Appearance of Witnesses Scope

516.40  General.
516.41  Policy.
516.42  Reference to HQDA.

            Release of Records in Connection With Litigation

516.43  Release of Army and other agency records.
516.44  Determination of release authorization.
516.45  Records determined to be releasable.
516.46  Records determined not to be releasable.

             DA Personnel as Witnesses in Private Litigation

516.47  Response to subpoenas, orders, or requests for witnesses.
516.48  Official information.
516.49  Expert witnesses.
516.50  Interference with mission.

          Litigation in Which the United States Has an Interest

516.51  Response to subpoenas, orders, or requests for witnesses.
516.52  Expert witnesses.
516.53  News media and other inquiries.

                Status, Travel, and Expenses of Witnesses

516.54  Witnesses for the United States.
516.55  Witnesses for a State or private litigant.
516.56  Witnesses before foreign tribunals.

         Subpart H--Remedies in Procurement Fraud and Corruption

516.57  Purpose.
516.58  Policies.
516.59  Duties and procedures.
516.60  Procurement fraud and irregularities programs at MACOMs.
516.61  Reporting requirements.
516.62  PFD and HQ USACIDC coordination.
516.63  Coordination with DOJ.
516.64  Comprehensive remedies plan.
516.65  Litigation reports in civil recovery cases.
516.66  Administrative and contractual actions.
516.67  Overseas cases of fraud or corruption.
516.68  Program Fraud Civil Remedies Act (PFCRA).

        Subpart I--Cooperation With the Office of Special Counsel

516.69  Introduction.
516.70  Policy.
516.71  Duties.
516.72  Procedures.
516.73  Assistance from HQDA.

     Subpart J--Soldiers Summoned to Serve on State and Local Juries

516.74  General.
516.75  Policy.
516.76  Exemption determination authority.
516.77  Procedures for exemption.
516.78  Status, fees, and expenses.

Appendix A to Part 516--References.
Appendix B to Part 516--Mailing Addresses.
Appendix C to Part 516--Department of Defense Directive 5405.2, Release 
          of Official Information in Litigation and Testimony by DOD 
          Personnel as Witnesses.
Appendix D to Part 516--Department of Defense Directive 7050.5, 
          Coordination of Remedies for Fraud and Corruption Related to 
          Procurement Activities.

[[Page 82]]

Appendix E to Part 516--Department of Defense Directive 5505.5, 
          Implementation of the Program Fraud Civil Remedies Act.
Appendix F to Part 516--Glossary.
Appendix G to Part 516--Figures.

    Authority: 5 U.S.C. 552; 10 U.S.C. 218, 1037, 1089, 1552, 1553, 
2036; 18 U.S.C. 219, 3401; 28 U.S.C. 50, 513, 515, 543; 31 U.S.C. 3729 
and 41 U.S.C. 51; 42 U.S.C. 290, 2651; 43 U.S.C. 666

    Source: 59 FR 38236, July 27, 1994, unless otherwise noted.



                           Subpart A--General



Sec. 516.1  Purpose.

    (a) This part prescribes policies and procedures for the following:
    (1) Defensive and affirmative litigation in Federal and state 
civilian courts where the Army or DOD has an interest in the matter.
    (2) Proceedings before Federal or state administrative bodies, such 
as utility rate commissions.
    (3) Release of official information and testimony by DA personnel 
with regard to litigation.
    (4) Remedies for procurement fraud and corruption.
    (5) Environmental civil litigation and administrative proceedings.
    (6) Proceedings before the Office of Special Counsel.
    (b) This regulation does not apply to DA or DOD proceedings such as 
courts-martial or administrative boards.



Sec. 516.2  References.

    Applicable publications and forms are listed in appendix A to this 
part.



Sec. 516.3  Explanation of abbreviations and terms.

    (a) The Glossary contains explanations of abbreviations and terms.
    (b) The masculine gender has been used throughout this regulation 
for simplicity and consistency. Any reference to the masculine gender is 
intended to include women.



Sec. 516.4  Responsibilities.

    (a) United States Department of Justice (DOJ). DOJ will defend 
litigation in domestic and foreign courts, against the United States, 
its agencies and instrumentalities, and employees whose official conduct 
is involved. The various U.S. Attorney Offices, under the oversight of 
the Attorney General, will conduct much of the representation.
    (b) The Judge Advocate General (TJAG). Subject to the ultimate 
control of litigation by DOJ (including the various U.S. Attorney 
Offices), and to the general oversight of litigation by the Army General 
Counsel, TJAG is responsible for litigation in which the Army has an 
interest except with respect to proceedings addressed in paragraph (i) 
of this section, only TJAG (or Chief, Litigation Division) will 
communicate to DOJ the army's position with regard to settlement of a 
case.
    (c) Assistant Judge Advocate General For Civil Law and Litigation 
(AJAG-CL). Responsible to TJAG for litigation issues; supervises Chief, 
Litigation Division.
    (d) Chief, Litigation Division. Reports to AJAG-CL and is 
responsible for the following:
    (1) Supervising litigation in which the Army has an interest.
    (2) Acting for TJAG and Secretary of the Army on litigation issues, 
including the authority to settle or compromise cases, subject to the 
supervision of TJAG and AJAG-CL.
    (3) Delegating cases if appropriate.
    (4) Serving as primary contact with DOJ on litigation.
    (5) Accepting service of process for DA and for the Secretary of the 
Army in his official capacity. See 32 CFR Sec. 257.5).
    (e) Special Assistant U.S. Attorneys (SAUSAs) and DOJ Special 
Attorneys. Army judge advocates and civilian attorneys, when appointed 
as SAUSAs under 28 U.S.C. 543, will represent the Army's interests in 
either criminal or civil matters in Federal court under the following 
circumstances:
    (1) Felony and misdemeanor prosecutions in Federal court. Army 
attorneys, at the installation level, after being duly appointed (See AR 
27-10), will prosecute cases, in which the Army has an interest, in 
Federal court. Army attorneys who prosecute criminal cases will not 
represent the United States in civil litigation without authorization 
from Chief, Litigation Division.

[[Page 83]]

    (2) SAUSAs for civil litigation. By assignment of TJAG and upon the 
approval of the U.S. Attorney, Judge Advocates will serve within a U.S. 
Attorney's office to represent the government in litigation in which the 
Army or DOD has an interest. These Judge Advocates have the same general 
authority and responsibility as an Assistant U.S. Attorney.
    (3) Special Attorneys assigned to DOJ. By assignment of TJAG and 
with the concurrence of the appropriate DOJ official, Judge Advocates 
will work as Special Attorneys for DOJ. Special Attorneys are authorized 
to represent the United States in civil litigation in which the Army or 
DOD has an interest.
    (f) Attorneys at Army activities or commands. SJAs or legal 
advisers, or attorneys assigned to them, will represent the United 
States in litigation only if authorized by this regulation or delegated 
authority in individual cases by the Chief, Litigation Division.
    (g) Commander, U.S. Army Claims Service (USARCS). The Commander, 
USARCS, and USARCS attorneys, subject to AR 27-20, Chapter 4, will 
maintain direct liaison with DOJ in regard to administrative settlement 
of claims under the Federal Tort Claims Act.
    (h) Chief, Contract Law Division, OTJAG. The Chief, Contract Law 
Division, attorneys assigned to the Contract Law Division, and other 
attorneys designated by the Chief, Contract Law Division, in litigation 
involving taxation, will represent DA in negotiation, administrative 
proceedings, and litigation, and maintain liaison with DOJ and other 
governmental authorities.
    (i) Legal Representatives of the Chief of Engineers. The Office of 
Chief Counsel, attorneys assigned thereto, and other attorneys 
designated by the Chief Counsel will maintain direct liaison with DOJ 
and represent DA in litigation and administrative proceedings a rising 
from the navigation, civil works, Clean Water Act 404 permit authority, 
environmental response activities, and real property functions of the 
U.S. Army Corps of Engineers.
    (j) Chief Trial Attorney, Contract Appeals Division, USALSA. The 
Chief Trial Attorney, attorneys assigned to the Contract Appeals 
Division, and attorneys designated by the Chief Trial Attorney will 
represent the government before the Armed Services Board of Contract 
Appeals and the General Services Board of Contract Appeals. They will 
maintain direct liaison with DOJ concerning appeals from ASBCA and GSBCA 
decisions. The Chief Trial Attorney has designated COE attorneys to act 
as trial attorneys in connection with COE contract appeals.
    (k) Chief, Regulatory Law Office, USALSA. The Chief, Regulatory Law 
Office, attorneys assigned to the Regulatory Law Office, and other 
attorneys designated by the Chief, will represent DA consumer interests 
in regulatory matters before state and Federal administrative agencies 
and commissions, including but not limited to proceedings involving 
rates and conditions for the purchase of services for communications 
(except long-distance telephone), transportation, and utilities (gas, 
electric, water and sewer). They will maintain direct liaison with DOJ 
for communications, transportation, and utilities litigation.
    (l) Chief, Intellectual Property Law Division, USALSA. The Chief, 
Intellectual Property Law Division, and the attorneys assigned thereto 
will represent DA in matters pertaining to patents, copyrights, and 
trademarks. They will maintain direct liaison with DOJ concerning 
intellectual property issues.
    (m) Chief, Labor and Employment Law Office, OTJAG. The Chief, Labor 
and Employment Law Office, attorneys assigned thereto, and attorneys 
identified as labor counselors will represent DA in matters pertaining 
to labor relations, civilian personnel, and Federal labor standards 
enforcement before the following: Federal Labor Relations Authority; 
Merit Systems Protection Board; Equal Employment Opportunity Commission; 
Department of Labor; National Labor Relations Board; and, state 
workmen's compensation commissions. In the event any individual 
mentioned in this subparagraph intends to make a recommendation to DOJ 
concerning an appeal of any case to a U.S. Court of Appeals, such 
recommendation will first be coordinated with Litigation Division.

[[Page 84]]

    (n) Chief, Procurement Fraud Division, USALSA. The Chief, 
Procurement Fraud Division, attorneys assigned thereto, and other 
attorneys designated by the Chief will represent DA in all procurement 
fraud and corruption matters before the Army suspension and debarment 
authority and before any civil fraud recovery administrative body. They 
will maintain liaison and coordinate remedies with DOJ and other 
agencies in matters of procurement fraud and corruption.
    (o) Chief, Environmental Law Division, USALSA. The Chief, 
Environmental Law Division, attorneys assigned thereto, and other 
attorneys designated by the Chief, ELD, will maintain direct liaison 
with DOJ and represent DA in all environmental and natural resources 
civil litigation and administrative proceedings involving missions and 
functions of DA, its major and subordinate commands, installations 
presently or previously managed by DA, and other sites or issues in 
which DA has a substantial interest, except as otherwise specifically 
provided in this part.
    (p) Chief, Criminal Law Division, OTJAG. The Chief, Criminal Law 
Division, will have general oversight of felony and magistrate court 
prosecutions conducted by Army lawyers acting as Special Assistant U.S. 
Attorneys. (See subpart G of this part). The Chief will coordinate with 
DOJ and other governmental agencies concerning the overall conduct of 
these prosecutions.

[59 FR 38236, July 27, 1994; 59 FR 45974, Sept. 6, 1994]



Sec. 516.5  Restriction on contact with DOJ.

    (a) General rule. Except as authorized by TJAG, the General Counsel, 
the Chief of Litigation Division, or this regulation, no Army personnel 
will confer or correspond with DOJ concerning legal proceedings in which 
the Army has an interest.
    (b) Exceptions. This prohibition does not preclude contact with DOJ 
required by the Memorandum of Understanding between DOJ and DOD relating 
to the investigation and prosecution of certain crimes. (See AR 27-10, 
para 2-7). In addition, an installation SJA or legal adviser is expected 
to maintain a working relationship with the U.S. Attorney in each 
district within his geographical area. An SJA or legal adviser should 
request the U.S. Attorney to advise him immediately when litigation 
involving DA or its personnel is served on the U.S. Attorney.

[59 FR 38236, July 27, 1994; 59 FR 45974, Sept. 6, 1994]



Sec. 516.6  Appearance as counsel.

    (a) General. Military personnel on active duty and DA civilian 
personnel will not appear as counsel before any civilian court or in any 
preliminary proceeding, for example, deposition, in litigation in which 
the Army has an interest without the prior written approval of TJAG, 
except under the following conditions:
    (1) The appearance is authorized by this regulation.
    (2) The individual is a party to the proceeding.
    (3) The appearance is authorized under an expanded legal assistance 
program (See AR 27-3).
    (4) The individual is a judge advocate assigned or detailed by TJAG 
to DOJ to represent the United States in civil or criminal cases, for 
example, a Special Assistant U.S. Attorney, or an attorney assigned to 
Litigation Division.
    (b) Procedure. All requests for appearance as counsel will be made 
through Litigation Division to the Personnel, Plans and Training Office, 
OTJAG. Requests for DA military or civilian attorneys to appear in any 
civilian court or proceeding on behalf of a soldier who is also facing 
UCMJ action will be delivered to the SJA, legal adviser, or Regional 
Defense Counsel, as appropriate. The SJA or legal adviser will forward 
the request to Litigation Division with an evaluation of the case and 
recommendation. Regional Defense Counsel should send requests for USATDS 
counsel to Chief, USATDS, who will forward the request to Litigation 
Division. Privileged or otherwise sensitive client information should 
only be submitted through USATDS channels.

[[Page 85]]



Sec. 516.7  Mailing addresses.

    Mailing addresses for organizations referenced in this regulation 
are in appendix B to this part.



                      Subpart B--Service of Process



Sec. 516.8  General.

    (a) Defined. Process is a legal document that compels a defendant in 
an action to appear in court or to comply with the court's demands, for 
example, in a civil case a summons or subpoena, or in a criminal case, a 
warrant for arrest, indictment, contempt order, subpoena, or summons. 
Service of process is the delivery of the document to a defendant to 
notify him of a claim or charge against him.
    (b) Policy. DA personnel will follow the guidance of this chapter 
when civil officials attempt to serve civil or criminal process on 
individuals on Federal property.
    (c) Procedures. Provost marshals shall ensure that installation law 
enforcement personnel are adequately trained to respond to situations 
which arise with regard to service of civil and criminal process. SJAs 
or legal advisers shall provide guidance to law enforcement personnel in 
these matters.



Sec. 516.9  Service of criminal process within the United States.

    (a) Surrender of personnel. Guidance for surrender of military 
personnel to civilian law enforcement officials is in Chapter 7 of AR 
630-10 and AR l90-9. Army officials will cooperate with civilian law 
enforcement authorities who seek the surrender of a soldier in 
connection with criminal charges. Special rules apply when a bail 
bondsman or other surety seeks custody of a soldier.
    (b) Requests for witnesses or evidence in criminal proceedings. See 
subpart G to this part.

[59 FR 38236, July 27, 1994; 59 FR 45975, Sept. 6, 1994]



Sec. 516.10  Service of civil process within the United States.

    (a) Policy. DA officials will not prevent or evade the service or 
process in legal actions brought against the United States or against 
themselves in their official capacities. If acceptance of service of 
process would interfere with the performance of military duties, Army 
officials may designate a representative to accept service. DA personnel 
sued in their individual capacity should seek legal counsel concerning 
voluntary acceptance of process.
    (b) Request for witnesses or evidence in civil proceedings. See 
subpart G to this part.
    (c) Process of Federal courts. Subject to reasonable restrictions 
imposed by the commander, civil officials will be permitted to serve 
Federal process. (See Fed. R. Civ. P. 4, 45).
    (d) Process of state courts.
    (1) In areas of exclusive Federal jurisdiction that are not subject 
to the right to serve state process, the commander or supervisor will 
determine whether the individual to be served wishes to accept service 
voluntarily. A JA or other DA attorney will inform the individual of the 
legal effect of voluntary acceptance. If the individual does not desire 
to accept service, the party requesting service will be notified that 
the nature of the exclusive Federal jurisdiction precludes service by 
state authorities on the military installation.
    (2) On Federal property where the right to serve process is reserved 
by or granted to the state, in areas of concurrent jurisdiction, or 
where the United States has only a proprietary interest, Army officials 
asked to facilitate service of process will initially proceed as 
provided in the preceding subparagraph. If the individual declines to 
accept service, the requesting party will be allowed to serve the 
process in accordance with applicable state law, subject to reasonable 
restrictions imposed by the commander.
    (e) Process of foreign courts. A U.S. District Court may order 
service upon a person who resides in the judicial district of any 
document issued in connection with a proceeding in a foreign or 
international tribunal. (28 U.S.C. 1696). In addition, the U.S. State 
Department has the power to receive a letter rogatory issued by a 
foreign or international tribunal, to transmit it to a tribunal, officer 
or agency in the United States, and to return it after execution. (28 
U.S.C. 1781). Absent a

[[Page 86]]

treaty or agreement to the contrary, these provisions will govern.
    (f) Seizure of personal property. State and Federal courts issue 
orders (for example, writ of attachment) authorizing a levy (seizure) of 
property to secure satisfaction of a judgment. DA personnel will comply 
with valid state or Federal court orders commanding or authorizing the 
seizure of private property to the same extent that state or Federal 
process is served.

[59 FR 38236, July 27, 1994; 59 FR 45975, Sept. 6, 1994]



Sec. 516.11  Service of criminal process outside the United States.

    Army Regulation 630-10 and international treaties, such as status of 
forces agreements, govern the service of criminal process of foreign 
courts and the surrender of soldiers to foreign civilian law enforcement 
officials.



Sec. 516.12  Service of civil process outside the United States.

    (a) Process of foreign courts. In foreign countries service of 
process issued by foreign courts will be made under the law of the place 
of service, as modified by status of forces agreements, treaties or 
other agreements. In foreign areas under exclusive U.S. jurisdiction, 
service of process issued by foreign courts will be made under the law 
specified by appropriate U.S. authority.
    (b) Process of Federal courts. Service of process on U.S. citizens 
or residents may be accomplished under the following provisions: The 
Hague Convention, reprinted in 28 USCA Federal Rules of Civil Procedure, 
following Rule 4; Fed. R. Civ. P. 4(i); 28 USC 1781 and 1783; and, the 
rules of the Federal court concerned. If a DA official receives a 
request to serve Federal process on a person overseas, he will determine 
if the individual wishes to accept service voluntarily. Individuals will 
be permitted to seek counsel. If the person will not accept service 
voluntarily, the party requesting service will be notified and advised 
to follow procedures prescribed by the law of the foreign country 
concerned.
    (c) Process of state courts. If a DA official receives a request to 
serve state court process on a person overseas, he will determine if the 
individual wishes to accept service voluntarily. Individuals will be 
permitted to seek counsel. If the person will not accept service 
voluntarily, the party requesting service will be notified and advised 
to follow procedures prescribed by the law of the foreign country 
concerned. (See, for example, The Hague Convention, reprinted in 28 USCA 
Federal Rules of Civil Procedure, following Rule 4).
    (d) Suits against the United States. DA personnel served with 
foreign civil process will notify the appropriate SJA or legal adviser, 
who will return the document to the issuing authority explaining the 
lack of authority to accept service for the United States. Service on 
the United States must be made upon DOJ through established diplomatic 
channels.



Sec. 516.13  Assistance in serving process overseas.

    (a) Europe. For information and assistance concerning service of 
process of persons assigned to or accompanying U.S. Forces in Europe, 
contact the Foreign Law Branch, International Law Division, Office of 
The Judge Advocate, Headquarters U.S. Army, Europe, and Seventh Army, 
Unit 29351, (Heidelberg, Germany) APO AE 09014.
    (b) Korea. For information and assistance concerning service of 
process of persons assigned to or accompanying U.S. Forces in Korea, 
contact Staff Judge Advocate, US Forces Korea (Seoul, Republic of 
Korea), APO AP 96205.
    (c) Panama, Central and South America. For information and 
assistance concerning service of process of persons assigned to or 
accompanying forces in the U.S. Army Southern Command, contact Staff 
Judge Advocate, HQ, US Army South, Fort Clayton, Panama, APO AA 34004-
5000.



Sec. 516.14  Service of process on DA or Secretary of Army.

    The Chief, Litigation Division, shall accept service of process for 
Department of the Army or for the Secretary of the Army in his official 
capacity.

[[Page 87]]



             Subpart C--Reporting Legal Proceedings to HQDA



Sec. 516.15  General.

    (a) Legal proceedings requiring reporting. Actions must be taken 
upon commencement of litigation or administrative proceedings in which 
the United States has an interest. Typically, the Secretary of the Army, 
DA, the United States, or DA personnel are named as defendant in a 
lawsuit or as respondent in an administrative proceeding. A nonexclusive 
listing of cases in which the United States has an interest include the 
following:
    (1) Suits for damages, injunctive relief, or other action filed 
against the government or against DA personnel in their official 
capacity.
    (2) Suits alleging individual liability arising from performance of 
official duties by DA personnel.
    (3) Actions affecting DA operations or activities or which might 
require official action by DA personnel.
    (4) Actions arising out of DA contracts, subcontracts, or purchase 
orders wherein the government might be required to reimburse a 
contractor for litigation expenses.
    (5) Bankruptcy proceedings in which the United States or its 
instrumentalities may have an interest, including bankruptcies involving 
government contractors.
    (b) Command and agency responsibility. Commanders and supervisors of 
Army units, installations, or organizations will ensure reports required 
by this section are promptly submitted.
    (c) Reports to HQDA. Reports required by this regulation will be 
made telephonically or mailed to the responsible organization at DA. 
Appendix B to this part contains mailing addresses for these offices. 
Except in the situations described below, reports required by this 
chapter will be made to Litigation Division:
    (1) Actual or potential litigation (or administrative infringement 
claims) involving patents, copyrights, or trademarks will be made to 
Intellectual Property Law Division.
    (2) Reports of pending or prospective litigation involving taxation 
will be made to Contract Law Division.
    (3) Communications, transportation, and utility services reports 
will be made to Regulatory Law Office.
    (4) Reports involving environmental and natural resource litigation 
and administrative proceedings will be made to Environmental Law 
Division.
    (5) Potential civil recovery reports in cases of procurement fraud 
and corruption will be made to Procurement Fraud Division.
    (6) Reports involving the felony prosecution program and magistrate 
court prosecutions will be made to Criminal Law Division, OTJAG.
    (7) Cases before the Armed Services Board of Contract Appeals and 
the General Services Board of Contract Appeals will be made to Contract 
Appeals Division.
    (d) Classified information. Information required by this regulation 
will be submitted in an unclassified form if possible. If downgrading or 
declassification is not feasible, the classified material should be 
separated from the report and forwarded under separate cover.
    (e) Other reporting requirements. Reports required by this chapter 
are in addition to and do not satisfy any other reporting requirement, 
such as the following: notifying the FBI of offenses pursuant to AR 27-
10; submitting serious incident reports pursuant to AR 190-40; reporting 
procurement fraud or other irregularities per Defense Federal 
Acquisition Regulation Supplement, section 209.406-3 (48 CFR 209.406-3); 
reporting the exercise of criminal jurisdiction by foreign tribunals 
over U.S. personnel pursuant to AR 27-50; or, reporting bankruptcies per 
AR 37-103.
    (f) Reports control exemption. The reports required herein are 
exempt from reports control under AR 335-15, paragraphs 3-3a(5) and 5-
2e(4).



Sec. 516.16  Individual and supervisory procedures upon commencement of legal proceedings.

    (a) Individual procedures. DA personnel served with civil or 
criminal process concerning a proceeding in which the United States has 
an interest (Sec. 516.15) will immediately inform their supervisor and 
furnish copies of

[[Page 88]]

process and pleadings. There is no requirement to notify supervisors of 
purely private litigation.
    (b) Supervisory procedures. When supervisors learn that legal 
proceedings in which the United States has an interest have commenced, 
the supervisor will forward a copy of all process and pleadings, along 
with other readily available information, to the SJA or legal adviser. 
If no legal officer is available locally, the documents will be 
forwarded to the SJA or legal adviser of the next higher headquarters.



Sec. 516.17  SJA or legal adviser procedures.

    (a) Immediate notice to HQDA. When an SJA or legal adviser learns of 
litigation in which the United States has an interest, and it appears 
that HQDA is not aware of the action, the SJA or legal adviser will 
telephonically notify the responsible HQDA office. (See Sec. 516.15(c)). 
Immediate notice is particularly important when litigation involves one 
of the following: a lawsuit against an employee in his individual 
capacity; a motion for a temporary restraining order or preliminary 
injunction; a habeas corpus proceeding; a judicial or administrative 
proceeding involving less than 60 days to file an answer; and, actions 
with possible Congressional, Secretarial, or Army Staff interest. For 
legal proceedings instituted in foreign tribunals, the SJA or legal 
adviser will also notify the major overseas commander concerned and the 
appropriate U.S. Embassy or Legation. A telephonic report to HQDA should 
include the following:
    (1) Title or style of the proceeding.
    (2) Full names and addresses of the parties.
    (3) Tribunal in which the action is filed, date filed, docket 
number, when and on whom service of process was made, and date by which 
pleading or response is required.
    (4) Nature of the action, amount claimed or relief sought.
    (5) Reasons for immediate action.
    (b) Transmission of process, pleadings, and related papers. Unless 
instructed otherwise by HQDA, the SJA or legal adviser will FAX or mail 
HQDA a copy of all process, pleadings, and related papers. Use of 
express mail or overnight delivery service is authorized.
    (c) Notice to U.S. Attorney. If the legal proceeding is instituted 
in the United States, the SJA or legal adviser, unless instructed 
otherwise by HQDA, will notify the appropriate U.S. Attorney and render 
assistance as required.



Sec. 516.18  Litigation alleging individual liability.

    See subpart D for procedures to follow when DA personnel, as a 
result of performance of official duties, are either sued in their 
individual capacities or face criminal charges.



Sec. 516.19  Injunctive relief.

    (a) General. Plaintiffs may attempt to force government action or 
restraint in important operational matters or pending personnel actions 
through motions for temporary restraining orders (TRO) or preliminary 
injunctions (PI). Because these actions can quickly impede military 
functions, immediate and decisive action must be taken.
    (b) Notification to HQDA and U.S. Attorney. The SJA or legal adviser 
will immediately notify Litigation Division or other appropriate office 
at HQDA when a motion for TRO or PI has been, or is about to be, filed. 
The SJA or legal adviser will also notify the responsible U.S. Attorney.
    (c) Actions by SJA or legal adviser. The SJA or legal adviser will 
assist the DOJ or DA attorney responsible for the litigation. 
Installation attorneys or support personnel should begin accumulating 
relevant documentary evidence and identifying witnesses. If requested, 
installation attorneys will prepare a legal memorandum concerning the 
motion, giving particular attention to the following issues relevant to 
a court granting injunctive relief:
    (1) Plaintiff's likelihood of success on the merits.
    (2) Whether plaintiff will be irreparably harmed if injunctive 
relief is not granted.
    (3) Harm to defendant and other parties if injunctive relief is 
granted.
    (4) The public interest.

[[Page 89]]



Sec. 516.20  Habeas Corpus.

    (a) General. A soldier may file a writ of habeas corpus to challenge 
his continued custody (usually in a post court-martial situation) or 
retention in the Army. As is the case with injunctive relief in the 
preceding paragraph, installation SJAs and legal advisers must take 
immediate action.
    (b) Notification to Litigation Division and U.S. Attorney. The SJA 
or legal adviser will notify Litigation Division and the responsible 
U.S. Attorney's Office immediately upon learning that a petition for 
writ of habeas corpus has been filed. All relevant documentary evidence 
supporting the challenged action should be assembled immediately.
    (c) Procedures in habeas corpus. Upon the filing of a petition for a 
writ of habeas corpus, the court will dismiss the petition, issue the 
writ, or order the respondent to show cause why it should not be 
granted. If a writ or order to show cause is issued, the SJA or legal 
adviser should be prepared to assist the responsible Litigation Division 
or DOJ attorney in preparing a return and answer. If so directed, the 
SJA will also prepare a memorandum of points and authorities to 
accompany the return and answer. The government's response should cover 
the following: whether the Army has custody of petitioner; whether 
respondent and petitioner are within the judicial district; and, whether 
appellate or administrative remedies have been exhausted.
    (d) Writs or orders issued by state courts. No state court, after 
being judicially informed that a petitioner is in custody under the 
authority of the United States, should interfere with that custody or 
require that petitioner be brought before the state court. A deserter, 
apprehended by any civil officer having authority to apprehend offenders 
under the laws of the United States or of any state, district, 
territory, or possession of the United States, is in custody by 
authority of the United States. If a writ of habeas corpus is issued by 
a state court, the SJA or legal adviser will seek guidance from 
Litigation Division.
    (e) Foreign court orders. A foreign court should not inquire into 
the legality of restraint of a person held by U.S. military authority. 
If a foreign court issues any process in the nature of a writ of habeas 
corpus, the SJA or legal adviser will immediately report the matter to 
the appropriate U.S. forces commander and to Litigation Division.



Sec. 516.21  Litigation against government contractors.

    (a) General. A contract might require that the government reimburse 
a contractor (or subcontractor) for adverse judgments or litigation 
expenses. Unless a contractor or subcontractor facing a lawsuit requests 
representation by DOJ, the Army presumes the contractor will obtain 
private counsel to defend the case. If the contract so allows, however, 
the contractor may request and HQDA may recommend that DOJ represent the 
contractor if it is in the best interests of the United States.
    (b) Actions by SJA or legal adviser. If a contractor or 
subcontractor faces litigation and the underlying contract with the 
government requires reimbursement for adverse judgments or costs of the 
litigation, the SJA or legal adviser, through the contracting officer, 
should determine if the contractor desires representation by DOJ. If so, 
the contractor or authorized agent will sign a request for 
representation. (See figure D-3, appendix G, of this part.) The SJA or 
legal adviser will determine whether, in his opinion, representation by 
DOJ should be granted. He will prepare a memorandum to support his 
recommendation, especially concerning any issue regarding the 
government's obligation to reimburse the contractor under the contract. 
The SJA or legal adviser will forward his memorandum, along with the 
contractor's request, to Litigation Division.
    (c) Actions by Litigation Division. The Chief, Litigation Division, 
will evaluate the submission and decide if it is in the Army's best 
interest that the request be granted. He will prepare a memorandum 
supporting his decision and send the packet to DOJ. The Chief's decision 
constitutes the final DA position on the matter. If DOJ grants the 
contractor's request, the Chief, Litigation Division, will ensure that 
the contractor is notified through the SJA or legal adviser and the 
contracting officer.

[[Page 90]]

    (d) Private Counsel. A contractor represented by DOJ may ask that 
private counsel assist the DOJ attorney in the litigation. The DOJ 
attorney will remain in control of the litigation, and the fees for 
private counsel will not be reimbursable except under unusual 
circumstances. The contractor must seek both DOJ and DA approval to 
employ private counsel when DOJ representation has been granted. Even if 
DOJ and DA grant authority to employ private counsel, the contracting 
officer will determine whether a contractor will be reimbursed under the 
contract for private counsel.
    (e) Settlement. The contractor, unless the contract specifies 
otherwise, will ultimately decide whether to compromise a suit. 
Reimbursement under the contract is determined by the contracting 
officer, with the advice of his attorney.



Sec. 516.22  Miscellaneous reporting requirements.

    SJAs or legal advisers will comply with the directives cited below 
concerning actual or prospective litigation involving the following 
types of cases:
    (a) Taxation.
    (1) Contractor transactions. (FAR and DFARS, 48 CFR parts 29 and 
229).
    (2) Army and Air Force Exchange Service (AAFES) activities. (AR 60-
20).
    (3) Purchase or sale of alcoholic beverages. (AR 215-2).
    (4) Nonappropriated fund and related activities. (AR 215-1).
    (b) Tort and contract claims, insurance and litigation involving 
nonappropriated fund activities. (AR 215-1).
    (c) Annexation of Army lands. (AR 405-25).
    (d) Communications, transportation, and utility services 
administrative proceedings. Any contracting officer or other Army 
official responsible for the acquisition of communications, 
transportation, utilities (gas, electric, water and sewer), or military 
mail services, who becomes aware of any action or proceeding of interest 
to the Army, will promptly refer the matter to the SJA or legal adviser, 
who will take the actions prescribed in Sec. 516.17 of this part. 
Examples of actions requiring referral follow: new or amended rates, 
regulations, or conditions of service; applications for authority to 
discontinue or initiate service; changes in electromagnetic patterns 
causing adverse communications interference; or, zoning proposals 
affecting historic or aesthetic preservation. In addition, the SJA or 
legal adviser will transmit the following to Regulatory Law Office:
    (1) The names and addresses of any parties intervening and the 
substance of their positions.
    (2) Names of government users affected by any change.
    (3) Copy of any proposed rates, rules, or regulations.
    (4) A recommendation whether the Army should intervene in the action 
or proceeding. If intervention is recommended, provide a memorandum to 
support the recommendation.
    (e) Legal proceedings overseas. Foreign communications, 
transportation, and utility service proceedings need not be reported. In 
other legal proceedings instituted in a foreign country, the SJA or 
legal adviser will take the actions prescribed in Sec. 516.17 of this 
part.
    (f) Maritime claims. Admiralty and maritime claims within the 
purview of Chapter 8, AR 27-20, which have been investigated and 
processed under AR 55-19 or other applicable regulations, will be 
referred to USARCS.
    (g) Army and Air Force Exchange Service litigation. The SJA or legal 
adviser will send a copy of all documents relating to litigation against 
AAFES to General Counsel, AAFES, P.O. Box 660202, Dallas, TX 75266-0202.
    (h) Bankruptcy. Reports of bankruptcy or insolvency proceedings 
shall be made in accordance with this regulation and AR 37-103.



Sec. 516.23  Litigation reports.

    The SJA or legal adviser will prepare a litigation report when 
directed by HQDA. The report will contain the following sections: 
Statement of Facts; Setoff or Counterclaim; Responses to Pleadings; 
Memorandum of Law; Witness List; and, Exhibits.
    (a) Statement of Facts. Include a complete statement of the facts 
upon which the action and any defense thereto are based. Where possible, 
support facts by reference to documents or

[[Page 91]]

witness statements. Include details of previous administrative actions, 
such as the filing and results of an administrative claim. If the action 
is predicated on the Federal Tort Claims Act, include a description of 
the plaintiff's relationship to the United States, its 
instrumentalities, or its contractors. Also include a statement whether 
an insurance company or other third party has an interest in the 
plaintiff's claim by subrogation or otherwise and whether there are 
additional claims related to the same incident.
    (b) Setoff or Counterclaim. Discuss whether setoff or counterclaim 
exists. If so, highlight the supportive facts.
    (c) Responses to Pleadings. Prepare a draft answer or other 
appropriate response to the pleadings. (See figure C-1, to this part). 
Discuss whether allegations of fact are well-founded. Refer to evidence 
that refutes factual allegations.
    (d) Memorandum of Law. Include a brief statement of the applicable 
law with citations to legal authority. Discussions of local law, if 
applicable, should cover relevant issues such as measure of damages, 
scope of employment, effect of contributory negligence, or limitations 
upon death and survival actions. Do not unduly delay submission of a 
litigation report to prepare a comprehensive memorandum of law.
    (e) Potential witness information. List each person having 
information relevant to the case and provide an office address and 
telephone number. If there is no objection, provide the individual's 
social security account number, home address, and telephone number. This 
is ``core information'' required by Executive Order No. 12778 (Civil 
Justice Reform). Finally, summarize the information or potential 
testimony that each person listed could provide.
    (f) Exhibits.
    (1) Attach a copy of all relevant documents. This is ``core 
information'' required by Executive Order No. 12778 (Civil Justice 
Reform). Unless otherwise directed by HQDA, each exhibit should be 
tabbed and internally paginated. References to exhibits in the 
litigation report should be to page numbers of particular exhibits.
    (2) Copies of relevant reports of claims officers, investigating 
officers, boards or similar data should be attached, although such 
reports will not obviate the requirement for preparation of a complete 
litigation report.
    (3) Prepare an index of tabs and exhibits.
    (4) Where a relevant document has been released pursuant to a FOIA 
request, provide a copy of the response, or otherwise identify the 
requestor and the records released.
    (g) Distribution and number of copies. Unless HQDA directs 
otherwise, SJAs or legal advisers will mail (first class) an original 
and one copy of the litigation report to the responsible HQDA office 
(See Sec. 516.15 of this part) and one copy to the U.S. Attorney's 
Office handling the case. If possible, record the litigation report onto 
a magnetic diskette, using either WordPerfect, Enable, or ACSII, and 
send it to Litigation Division.



Sec. 516.24  Preservation of evidence.

    Because documents needed for litigation or administrative 
proceedings are subject to routine destruction, the SJA or legal adviser 
will ensure that all relevant documents are preserved.



Sec. 516.25  DA Form 4.

    (a) General. The DA Form 4 (See figure C-2, appendix G, of this 
part) is used to authenticate Army records or documents. Documents 
attached to a properly prepared and sealed DA Form 4 are self-
authenticating. (See Fed. R. Evid. 902).
    (b) Preparation at the installation level. A DA Form 4 need not be 
prepared until the trial attorney presenting the government's case 
identifies documents maintained at the installation level which he will 
need at trial. Once documents are identified, the custodian of the 
documents will execute his portion of the DA Form 4. (See figure C-2, 
appendix G, of this part). The custodian certifies that the documents 
attached to the DA Form 4 are true copies of official documents. 
Documents attached to each form should be generally identified; each 
document need not be mentioned specifically. Only the upper portion of 
the form should be executed at the local level.

[[Page 92]]

    (c) Actions at HQDA. Upon receipt of the DA Form 4 with documents 
attached thereto, HQDA will affix a ribbon and seal and deliver it to 
the Office of the Administrative Assistant to the Secretary of the Army. 
That office will place the official Army seal on the packet.



Sec. 516.26  Unsworn declarations under penalty of perjury.

    (a) General. Under the provisions of 28 U.S.C. l746, whenever any 
matter is required or permitted to be established or proven by a sworn 
statement, oath or affidavit, such matter may also be established or 
proven by an unsworn written declaration under penalty of perjury. 
Because such declaration does not require a notary or other official to 
administer oaths, individuals preparing statements for use in litigation 
should consider using this format. (See figure C-3, appendix G, of this 
part).
    (b) When executed within the United States. Place the following at 
the end of the witness statement:

    I declare under penalty of perjury that the foregoing is true and 
correct. (28 U.S.C. 1746).
Executed on
_______________________________________________________________________
(Date)        (Signature)

    (c) When executed outside the United States. Place the following at 
the end of the witness statement:
    I declare under penalty of perjury under the laws of the United 
States of America that the foregoing is true and correct. (28 U.S.C. 
1746).
Executed on
_______________________________________________________________________
(Date)        (Signature)



                     Subpart D--Individual Liability



Sec. 516.27  Scope.

    This subpart guidance when DA personnel, as a result of the 
performance of their official duties, are either sued in their personal 
capacity, or are charged in a criminal proceeding. Examples of civil 
actions alleging individual liability include the following: a medical 
malpractice lawsuit against health care providers; suits resulting from 
motor vehicle accidents; constitutional torts; or, common law torts such 
as assault, libel, or intentional infliction of emotional distress. 
Likewise, state or Federal criminal charges can arise from the 
performance of official duties, including environmental crimes or motor 
vehicle accidents.



Sec. 516.28  Policy.

    (a) General. Commanders, supervisors, and SJAs or legal advisers 
will give highest priority to compliance with the requirements of this 
chapter with regard to current or former DA personnel who face criminal 
charges or civil litigation in their individual capacity as a result of 
performance of their official duties.
    (b) DOJ policy on representation. If in the best interest of the 
United States, upon request of the individual concerned, and upon 
certification by his agency that he was acting within the scope of his 
employment, DOJ may represent present and former DA personnel sued 
individually as a result of actions taken within the scope of their 
employment. Representation can be declined for a variety of reasons, 
including but not limited to the following: the employee was not acting 
within the scope of his office; there is a conflict of interest; or, 
actions were not taken in a good faith effort to conform to law.



Sec. 516.29  Federal statutes and regulations.

    (a) Federal Tort Claims Act (FTCA). (28 U.S.C. 1346(b), 2671-2680). 
A waiver of sovereign immunity which, with certain exceptions, makes the 
United States liable for tort claims in the same manner as a private 
individual.
    (b) Federal Employees Liability Reform and Tort Compensation Act of 
l988 (FELRTCA or the Westfall Act, Pub. L. No. 100-694, 102 Stat. 4563 
(1988) (codified at and amending 28 U.S.C. 2671, 2674, 2679). FELRTCA, 
by amending the Federal Tort Claims Act, makes the FTCA the exclusive 
remedy for common law tort claims arising from actions taken by Federal 
employees acting within the scope of employment. The law was passed to 
eliminate problems caused by Westfall v. Erwin, 484 U.S. 292 (1988).
    (c) 10 U.S.C. 1089 (Defense of certain suits arising out of medical 
malpractice). This provision, commonly referred to as the Gonzales Act, 
makes the FTCA the exclusive remedy for

[[Page 93]]

suits alleging medical malpractice against a military health care 
provider.
    (d) 28 CFR 50.15 (Representation of Federal officials and employees 
by Department of Justice attorneys [. . .] in civil, criminal, and 
congressional proceedings in which Federal employees are sued, 
subpoenaed, or charged in their individual capacities). These DOJ 
regulations set out the policy and procedures for requesting 
representation in individual liability cases. See also 28 CFR part 15 
(Defense of Certain Suits Against Federal Employees, etc.).
    (e) 28 CFR 50.16 (Representation of Federal employees by private 
counsel at Federal expense).



Sec. 516.30  Procedures for obtaining certification and DOJ representation.

    (a) SJA or legal adviser procedures. When an SJA or legal adviser 
learns of a criminal charge or of a lawsuit alleging individual 
liability against DA personnel as a result of performance of official 
duties, he will take the following actions:
    (1) Immediately notify Litigation Division and the appropriate U.S. 
Attorney and FAX or express deliver copies of process and pleadings to 
each office. Where time for response is limited, request that the U.S. 
Attorney either petition the court for an extension of time, or provide 
temporary counsel and representation pending formal approval.
    (2) Investigate whether the employee was acting within the scope of 
his office or employment. Obtain, if possible, statements from the 
defendant, supervisors, and witnesses.
    (3) Advise the individual defendant of the rights and conditions set 
out in 28 CFR 50.15, which include the following:
    (i) His right to request representation by a DOJ attorney and, in 
appropriate cases, certification that he was acting within the scope of 
employment. (See 28 U.S.C. 2679; 28 CFR 50.15).
    (ii) The right to request private counsel at government expense, 
subject to the availability of funds. (See 28 CFR 50.16).
    (iii) That the United States is not obligated to pay or indemnify 
defendant for any judgment rendered against him in his individual 
capacity.
    (4) If the defendant desires certification or DOJ representation, 
have him sign a request. (See figure D-1, appendix G, of this part). 
Obtain a signed scope of employment statement from the defendant's 
supervisor. (Figure D-2, appendix G, of this part).
    (5) Prepare a report with, at a minimum, the following information: 
facts surrounding the incident for which defendant is being sued and 
those relating to scope of employment; the SJA's or legal adviser's 
conclusions concerning scope of employment; and, a recommendation 
whether certification by the Attorney General or representation by a DOJ 
attorney should be granted.
    (6) In cases involving National Guard personnel, address also the 
following: whether defendant was acting in a state (Title 32 U.S.C.) or 
Federal (Title 10 U.S.C.) capacity during relevant periods (include 
orders); if defendant was acting under state authority, is it 
nevertheless in the interest of the United States to represent the 
individual; any impact on policies or practices of DA, the National 
Guard Bureau, or DOD; whether the relief requested can be granted only 
by a Federal officer or agency; and, whether Federal law or regulation 
required actions by state officials.
    (7) Send the report, request for representation, and scope of 
employment statements to Chief, Litigation Division.
    (b) Chief, Litigation Division, procedures. The Chief, Litigation 
Division, will review the report and evidence regarding representation 
and scope of employment and will determine whether certification and 
representation are appropriate. He will send his recommendation to the 
appropriate U.S. Attorney or office within DOJ. The Chief, Litigation 
Division, will notify the defendant of DOJ's decision.



Sec. 516.31  Private counsel at government expense.

    (a) General. DA personnel, sued in their individual capacity or 
facing criminal charges as a result of performance of official duties, 
have no right to employ a private sector counsel at government expense 
or to expect

[[Page 94]]

reimbursement for the same. For proceedings in the United States, a 
request for employment of counsel at government expense may be approved 
by DOJ, contingent among other things upon availability of funds and a 
determination that employment of private counsel at government expense 
is in the best interests of the United States. (See 28 CFR 50.16). 
Special rules apply in overseas areas. (See paragraph (e) of this 
section).
    (b) Individual request procedures. The individual will prepare a 
request that private counsel be employed for him at government expense. 
The request must also contain the following statement: ``I understand 
that the United States is not required to employ private counsel on my 
behalf, and that I may be responsible for expenses incurred prior to 
proper authorization by the Department of the Army or the Department of 
Justice.''
    (c) Supervisory and legal adviser procedures. The request will be 
submitted through the individual's supervisors, who will make a 
recommendation and forward the packet to the local SJA or legal adviser. 
The SJA or legal adviser will prepare his own recommendation and forward 
the matter to Litigation Division.
    (d) Chief, Litigation Division, procedures. If the Chief, Litigation 
Division, determines that the request for private counsel is 
meritorious, he will prepare an appropriate recommendation and forward 
the packet to Civil Division, DOJ, for final approval.
    (e) Special actions in foreign countries. Employment of private 
counsel in foreign proceedings is governed by AR 27-50 (Status of Forces 
Policies, Procedures, and Information). Under the authority of 10 U.S.C. 
1037, soldiers, as well as employees or those accompanying the armed 
forces overseas, may be granted individual counsel in civil and criminal 
proceedings, under the criteria of AR 27-50.



Sec. 516.32  Requests for indemnification.

    (a) Policy. An individual liable for a judgment rendered against him 
in his individual capacity has no right to reimbursement from DA. DA 
will consider, however, a request for indemnification from DA personnel 
where conduct within the scope of official duties has resulted in 
personal liability and indemnification is in the best interests of the 
United States. Indemnification is strictly contingent upon an 
appropriation to pay the judgment, as well as availability of such 
funds.
    (b) Individual request procedures. An individual against whom an 
adverse judgment has been rendered may request indemnification. The 
request must include, at a minimum, the following: how the employee was 
acting within the scope of his employment; whether the requestor has 
insurance or any other source of indemnification; and, how reimbursement 
is in the best interests of the United States. The request must also 
contain the following statements: ``I understand that acceptance of this 
request for indemnification for processing by DA does not constitute an 
acceptance of any obligation to make such a payment. I also understand 
that payment is contingent on availability of funds and that it will 
only be made if such is determined to be in the best interests of the 
United States.'' The individual should attach a copy of relevant 
documents, for example, court's opinion, judgment, and other allied 
papers.
    (c) Supervisory and SJA procedures. The request for indemnification 
will be submitted through supervisory channels to the local SJA or legal 
adviser. Each supervisor will make a recommendation on the propriety of 
reimbursement.
    (d) Chief, Litigation Division, procedures. Requests for 
indemnification will be forwarded to Chief, Litigation Division. The 
Chief, Litigation Division, will examine the submission and, after 
consultation with DOJ or other agencies, forward the packet with his 
recommendation to the Army General Counsel. The General Counsel will 
obtain a final decision by the Secretary of the Army or his designee on 
the matter. There is no administrative appeal of the Secretary's (or his 
designee's) decision.

[[Page 95]]



Subpart E--Legal Proceedings Initiated by the United States Medical Care 
                           and Property Claims



Sec. 516.33  General.

    (a) Authorities.
    (1) Federal Medical Care Recovery Act (42 U.S.C. 2651). The act 
provides for the recovery of medical care expenses incurred because of a 
tortfeasor's actions.
    (2) Federal Claims Collection Act (31 U.S.C. 3711). The act provides 
for the collection of claims for money or property arising from the 
activities of Federal agencies.
    (3) Third-party Collection Program (10 U.S.C. 1095). The statute 
provides for collection of reasonable costs of health-care services, 
provided in facilities of the uniformed services to covered 
beneficiaries, from private insurers or third-party payers. In 
accordance with DOD Instruction 6010.15, ``Third Party Collection (TPC) 
Program,'' 7 March 1991, the authority to settle or waive a DOD claim 
under the act is delegated to TJAG or to his designee.
    (4) Executive Order No. 12778, (56 FR 55195; 3 CFR, 1991 Comp. p. 
359), Civil Justice Reform. This order establishes several requirements 
on Federal agencies involved in litigation or contemplating filing an 
action on behalf of the United States.
    (5) AR 27-20, Claims. Chapter l4 (Affirmative Claims) contains 
comprehensive guidance for Recovery Judge Advocates (RJAs) in the 
administrative determination, assertion, collection, settlement, and 
waiver of claims in favor of the U.S. for property damage and for 
medical care claims.
    (b) Duties and Procedures. In accordance with Chapter 14, AR 27-20, 
Commander, USARCS, has supervisory responsibility over the 
administrative processing of property and medical care claims by RJAs. 
The Commander, U.S. Army Health Services Command (HSC), has supervisory 
responsibility over the Third Party Collection Program (TPCP). The HSC 
TPCP Implementation Plan effects DOD Instruction 6010.15 and establishes 
procedures for processing TPC claims. Litigation Division, in 
conjunction with DOJ and U.S. Attorneys, is responsible for pursuing, 
through litigation, claims not resolved administratively. DOJ is 
ultimately responsible for initiating litigation for the United States. 
(28 U.S.C. 515).
    (c) Assertion of claims on behalf of the United States by private 
attorneys. The Army incurs potentially recoverable expenses when it 
provides medical care to soldiers or dependents injured by tortfeasors 
(for example, a soldier is hospitalized after an automobile accident). 
When injured personnel employ a private attorney to sue the tortfeasor, 
it may be in the Government's best interests to enter into an agreement 
with the private attorney to include the Army's medical care claim.
    (d) Statute of limitations. There is a three year statute of 
limitations for actions in favor of the U.S. for money damages founded 
upon tort. (28 U.S.C. 2415(b)). Limitations periods can vary, however, 
depending upon the theory of liability and the jurisdiction involved. 
RJAs must be alert to the applicable period of limitations. A case 
referred for litigation should arrive at Litigation Division at least 6 
months before the expiration of the limitations period.
    (e) Reporting of recoveries. Amounts recovered through litigation 
will be reported to USARCS by Tort Branch, Litigation Division, or, 
where referred directly to a U.S. Attorney or the Nationwide Central 
Intake Facility (NCIF), by the responsible RJA.



Sec. 516.34  Referral of medical care and property claims for litigation.

    (a) Criteria for referral. The RJA will forward the claims file and 
a litigation report (See Sec. 516.35 of this part) through USARCS to 
Litigation Division when the claim has not been resolved 
administratively and any of the following conditions exist:
    (1) The claim exceeds $5,000;
    (2) It involves collection from the injured party or his attorney;
    (3) The claim raises an important question of policy; or,
    (4) There is potential for a significant precedent.
    (b) Alternative methods. When none of the conditions cited in the 
preceding subparagraph are present, the RJA

[[Page 96]]

may refer the claim directly to the U.S. Attorney for the district in 
which the prospective defendant resides. Similar property claims may be 
referred through USARCS to DOJ's Nationwide Central Intake Facility 
(NCIF) rather than directly to the U.S. Attorney. Notice of all such 
referrals shall be provided through USARCS to Tort Branch, Litigation 
Division. The RJA should be ready to provide support to the U.S. 
Attorney if requested.
    (c) Closing Files. A file referred directly to the U.S. Attorney 
will be closed if the U.S. Attorney determines further action is 
unwarranted. If the RJA disagrees, the file should be forwarded with the 
RJA's recommendation through USARCS to Litigation Division.



Sec. 516.35  Preparation of claims for litigation.

    (a) General. In preparing a referral for litigation the RJA will 
ensure the file contains at least the following:
    (1) A litigation report (See Sec. 516.23 of this part) that 
demonstrates a factual basis for the claim and a theory of recovery 
under applicable state law. (See Fed. R. Civ. P. 11)
    (2) Copies of all medical records and bills reflecting the 
reasonable value of the medical care furnished to the injured party, 
including DA Form 2631-R (Medical Care-Third Party Liability 
Notification), and DA Form 3154 (MSA Invoice and Receipt). These 
documents should be authenticated as necessary on a DA Form 4.
    (3) Copies of all documents necessary to establish the value of lost 
or damaged property.
    (b) Transmittal letter. The letter of transmittal referring the 
claim for litigation should briefly summarize the facts giving rise to 
the claim and the collection actions previously taken by the Army and 
the injured party.

                        Assertion of Other Claims



Sec. 516.36  Referral to Litigation Division.

    (a) General. The majority of cases filed on behalf of the United 
States will fall under this subpart E. All other civil cases which 
cannot be resolved administratively or by direct referral to DOJ will be 
forwarded through channels to Litigation Division with a litigation 
report. (See Sec. 516.23 of this part).
    (b) Government contractors. It may be in the Government's best 
interest to authorize a Government contractor, whose contract provides 
for the reimbursement of necessary legal expenses, to employ private 
counsel to initiate legal proceedings against a third party. To obtain 
authorization to employ private counsel in such instances the contractor 
should follow the procedures in Sec. 516.21(c) of this part.



Sec. 516.37  Proceedings to repossess government real property or quarters or to collect delinquent rent.

    (a) General. U.S. Attorneys are authorized to accept a Federal 
agency's request for the following purposes: to initiate an action to 
recover possession of real property from tenants, trespassers, and 
others; to enjoin trespasses on Federal property; and, to collect 
delinquent rentals or damages for use and occupancy of real property for 
amounts less than $200,000.
    (b) Procedures. When eviction or an action to collect delinquent 
rent is necessary, the SJA or legal adviser will notify General 
Litigation Branch, Litigation Division, of the situation. If approved by 
Litigation Division, the SJA or legal adviser may ask the U.S. Attorney 
to file suit. A copy of the complaint will be sent to Litigation 
Division. DOJ can take action to evict the occupants for violation of 
the terms of occupancy and collect delinquent rent or other charges. 
Once the matter has been referred to the U.S. Attorney, payments for 
rent should be sent to the U.S. Attorney. (See AR 210-50, chap 2.)



                   Subpart F--Environmental Litigation



Sec. 516.38  Scope.

    This subpart contains guidance, policies, and procedures applicable 
to all environmental and natural resources civil litigation and 
administrative proceedings involving missions and functions of DA, its 
major and subordinate commands, all installations presently or 
previously managed by DA, and all other sites or issues in which DA has 
a substantial interest. In this chapter,

[[Page 97]]

``litigation'' includes civil administrative proceedings.



Sec. 516.39  Duties and procedures.

    (a) Water rights. Environmental Law Division will conduct direct 
liaison with DOJ and will represent DA in State and Federal litigation 
relating to availability and allocation of surface and ground water and 
the establishment and protection of water rights for Army military 
installations and activities. This will include litigation in State 
general adjudications of water rights under the McCarran Amendment, 43 
U.S.C. 666, for Army military installations and activities. Such 
litigation relating solely to COE civil works projects or activities 
will be handled by attorneys under the technical supervision of the 
Chief Counsel, COE. With respect to any general adjudication which could 
affect the civil works or real property functions of COE, The Judge 
Advocate General, acting through the Chief, Environmental Law Division, 
and Chief Counsel, COE, will jointly determine which office should 
maintain primary direct liaison with DOJ and will scope and execute 
appropriate coordination with each other and with the General Counsel 
with respect to that litigation.
    (b) Navigable waters. The Chief Counsel, COE, will conduct direct 
liaison with DOJ and represent DA in civil litigation involving 
activities in or across navigable waters of the United States or other 
activities regulated under the Rivers and Harbors Act of 1899, 33 U.S.C. 
401 et seq.
    (c) Waters of the United States. The Chief Counsel, COE, will 
conduct direct liaison with DOJ and represent DA in civil litigation 
involving The Clean Water Act section 404 (See 33 U.S.C. 1344) permit 
authority of COE over the discharge of dredged or fill material into 
waters of the United States.
    (d) Enforcement. Environmental Law Division will conduct direct 
liaison with DOJ and represent DA in all civil litigation involving 
citizen or State enforcement of applicable State, Federal and local 
requirements respecting the control or abatement of pollution and 
involving the management of hazardous wastes, with respect to the 
missions and functions of, and Federal facilities owned or controlled 
by, DA, except for civil works facilities.
    (e) Environmental response.
    (1) Except as provided in (a)(2) of this section. Environmental Law 
Division will conduct direct liaison with DOJ and represent DA in all 
civil litigation seeking declaratory or injunctive relief or involving 
claims of Army liability for the costs of response at Federal facilities 
currently owned or controlled by DA and at other sites where the Army is 
a potentially responsible party.
    (2) The Chief Counsel, COE, will conduct direct liaison with DOJ and 
represent DA in all civil litigation seeking declaratory or injunctive 
relief or involving claims of Army liability for the costs of response 
at civil works facilities, at former defense sites or at other sites 
where the Army is a potentially responsible party due to the response 
actions of the COE or its contractors.
    (f) Fish and Wildlife, and Plants. Environmental Law Division will 
conduct direct liaison with DOJ and represent DA in civil litigation 
involving citizen or State enforcement of applicable State, Federal, and 
local laws governing conservation of plant, fish, and wildlife resources 
at Federal facilities owned or controlled by DA, except that such 
litigation relating solely to the real estate, civil works, navigation 
and Clean Water Act section 404 (See 33 U.S.C. 1344) permit functions 
and activities of the COE will be handled by attorneys under the 
technical supervision of the Chief Counsel, COE.
    (g) Toxic torts.
    (1) Except as otherwise provided in this part, Environmental Law 
Division will conduct direct liaison with DOJ and represent DA in all 
civil litigation involving claims of tort liability for exposure to 
environmental contamination emanating from Federal facilities owned or 
controlled by DA.
    (2) Litigation Division will conduct liaison with DOJ and represent 
DA in civil litigation involving claims of tort liability for singular 
and discrete incidents of exposure to environmental contamination 
emanating from any Federal facility owned or controlled by DA.

[[Page 98]]

    (3) The Chief Counsel, COE, will conduct direct liaison with DOJ and 
will represent DA in civil litigation involving claims of tort liability 
for exposure to environmental contamination (including singular and 
discrete incidents) emanating from any civil works activities under the 
jurisdiction of the Secretary of the Army.
    (4) The Chief Counsel, COE, and Chief, Environmental Law Division, 
will confer and jointly determine which office will conduct direct 
liaison with DOJ and represent DA in civil litigation involving all 
other claims of toxic tort liability.



   Subpart G--Release of Information and Appearance of Witnesses Scope



Sec. 516.40  General.

    (a) Introduction. This subpart implements DOD Directive 5405.2 (See 
appendix C to this part and 32 CFR part 97). It governs the release of 
official information and the appearance of present and former DA 
personnel as witnesses in response to requests for interviews, notices 
of depositions, subpoenas, and other requests or orders related to 
judicial or quasi-judicial proceedings. Requests for records, if not in 
the nature of legal process, should be processed under AR 25-55 (The 
Department of the Army Freedom of Information Act Program) or AR 340-21 
(The Army Privacy Program). This subpart pertains to any request for 
witnesses, documents, or information for all types of litigation, 
including requests by private litigants, requests by State or U.S. 
attorneys, requests by foreign officials or tribunals, subpoenas for 
records or testimony, notices of depositions, interview requests, civil 
cases, criminal proceedings, private litigation, or litigation in which 
the United States has an interest.
    (b) Definitions. (See appendix F to this part).



Sec. 516.41  Policy.

    (a) General Rule. Except as authorized by this subpart, present or 
former DA personnel will not disclose official information (See appendix 
F--Glossary) in response to subpoenas, court orders, or requests.
    (b) Exception. Present or former DA personnel may disclose official 
information if they obtain the written approval of the appropriate SJA, 
legal adviser, or Litigation Division.
    (c) Referral to deciding official. If present or former DA personnel 
receive a subpoena, court order, request for attendance at a judicial or 
quasi-judicial proceeding, or request for an interview related to actual 
or potential litigation, and it appears the subpoena, order, or request 
seeks disclosures described in a above, the individual should 
immediately advise the appropriate SJA or legal adviser. If the SJA or 
legal adviser cannot informally satisfy the subpoena, order, or request 
in accordance with Secs. 516.43 through 516.50 of this subpart, he 
should consult with Litigation Division.
    (d) Requesters' responsibilities. Individuals seeking official 
information must submit, at least 14 days before the desired date of 
production, a specific written request setting forth the nature and 
relevance of the official information sought. (Requesters can be 
referred to this subpart G). Subject to Sec. 516.47(a), present and 
former DA personnel may only produce, disclose, release, comment upon, 
or testify concerning those matters specified in writing and properly 
approved by the SJA, legal adviser, or Litigation Division. (See United 
States ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951)).
    (e) Litigation in which the United States has an interest. If a 
subpoena, order, or request relates to litigation in which the United 
States has an interest and for which litigation responsibility has not 
been delegated, the SJA or legal adviser will coordinate with Litigation 
Division under Sec. 516.42.
    (f) Motions to stay or quash subpoenas. A subpoena should never be 
ignored, and an SJA or legal adviser should seek assistance from 
Litigation Division or the U.S. Attorney's office whenever necessary. If 
a response to a subpoena or order is required before a release 
determination can be made or before Litigation Division or the U.S. 
Attorney can be contacted, the SJA or legal adviser will do the 
following:
    (1) Furnish the court or tribunal a copy of this regulation (32 CFR 
part 516, subpart G) and applicable case law

[[Page 99]]

(See United States ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951));
    (2) Inform the court or tribunal that the requesting individual has 
not complied with this Chapter, as set out in 32 CFR 97 & 516, or that 
the subpoena or order is being reviewed;
    (3) Seek to stay the subpoena or order pending the requestor's 
compliance with this chapter or final determination by Litigation 
Division; and,
    (4) If the court or other tribunal declines to quash or stay the 
subpoena or order, inform Litigation Division immediately so a decision 
can be made whether to challenge the subpoena or order. If Litigation 
Division decides not to challenge the subpoena or order, the affected 
personnel will comply with the subpoena or order. If Litigation Division 
decides to challenge the subpoena or order, it will direct the affected 
personnel to respectfully decline to comply with the subpoena or order. 
(See United States ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951)).
    (g) Classified or sensitive information. Only Litigation Division 
may authorize the release of official information or appearance of DA 
personnel as witnesses in litigation involving terrorism, espionage, 
nuclear weapons, or intelligence sources and methods.
    (h) Requests for Inspector General records or testimony. IG records, 
and information obtained through performance of IG duties, are official 
information under the exclusive control of the Secretary of the Army. 
(See AR 20-l, Chapter 3.) IG records frequently contain sensitive 
official information that may be classified or obtained under guarantees 
of confidentiality. When justification exists, DA attorneys will seek 
court protection from disclosure of IG records and information. No DA 
personnel will release IG records or disclose information obtained 
through performance of IG duties without the approval of The Secretary 
of the Army, The Inspector General, TIG Legal Advisor, or Chief, 
Litigation Division. When IG personnel receive a subpoena, court order, 
request for attendance at a judicial or quasi-judicial proceeding, or a 
request for an interview which the IG reasonably believes is related to 
actual or potential litigation concerning IG records or related 
information, they should immediately notify the Inspector General Legal 
Adviser or the Chief, Litigation Division. IG personnel will follow the 
guidance of this subpart concerning actions to be taken regarding 
disclosure and testimony.



Sec. 516.42  Reference to HQDA.

    (a) General. If the SJA or legal adviser is unable to resolve the 
matter, it will be referred for approval or action by Litigation 
Division under this chapter, by the most expeditious means, to General 
Litigation Branch, Litigation Division, with the following exceptions:
    (1) Those involving a case assigned to another branch of Litigation 
Division will be submitted to that branch (appendix B to this part).
    (2) Those involving affirmative litigation (for example, medical 
care recovery or Army property damage or loss cases) under subpart E 
will be submitted to Tort Branch.
    (3) Those involving patents, copyrights, privately developed 
technical information, or trademarks will be submitted to Intellectual 
Property Law Division.
    (4) Those involving taxation will be submitted to Contract Law 
Division.
    (5) Those involving communication, transportation, or utility 
service proceedings will be submitted to the Regulatory Law Office.
    (6) Those involving environmental matters will be submitted to the 
Environmental Law Division.
    (7) Those involving contract appeals cases before the ASBCA will be 
submitted to the Contract Appeals Division.
    (8) Those involving procurement fraud, including Qui Tam cases, will 
be submitted to the Procurement Fraud Division.
    (b) Information to be submitted. When referring matters pursuant to 
paragraph (a) of this section, the following data should be provided:
    (1) Parties (named or prospective) to the proceeding, their 
attorneys, and case number, where appropriate.
    (2) Party making the request (if a subpoena, indicate moving party) 
and his attorney.
    (3) Name of tribunal in which the proceeding is pending.

[[Page 100]]

    (4) Nature of the proceeding.
    (5) Date of receipt of request or date and place of service of 
subpoena.
    (6) Name, grade, position, and organization of person receiving 
request or served with subpoena.
    (7) Date, time, and place designated in request or subpoena for 
production of information or appearance of witness.
    (8) Nature of information sought or document requested, and place 
where document is maintained.
    (9) A copy of each document requested. Contact the appropriate 
office at HQDA if this would be burdensome and unnecessary to a decision 
whether to release, redact, or withhold a particular document.
    (10) Name of requested witness, expected testimony, requested 
appearance time and date, and whether witness is reasonably available.
    (11) Analysis of the problem with recommendations.

            Release of Records in Connection With Litigation



Sec. 516.43  Release of Army and other agency records.

    (a) Preservation of originals. To preserve the integrity of DA 
records, DA personnel will submit properly authenticated copies rather 
than originals of documents or records for use in legal proceedings, 
unless directed otherwise by Litigation Division. (See 28 U.S.C. 1733.)
    (b) Authentication of copies. Copies of DA records approved for 
release can be authenticated for introduction in evidence by use of DA 
Form 4. (See Sec. 516.25 for instructions.)
    (1) Records maintained in U.S. Army Engineer Districts and Divisions 
will be forwarded to HQDA(CECC-K), WASH DC 20314-1000.
    (2) All other records will be forwarded to the appropriate office at 
HQDA (See Sec. 516.42).
    (c) Fees and charges. AR 37-60 prescribes the schedule of fees and 
charges for searching, copying, and certifying Army records for release 
in response to litigation-related requests.
    (d) Release of records of other agencies. Normally an individual 
requesting records originating in agencies outside DA (that is, FBI 
reports, local police reports, civilian hospital records) that are also 
included in Army records should be advised to direct his inquiry to the 
originating agency.



Sec. 516.44  Determination of release authorization.

    (a) Policy. DA policy is to make official information reasonably 
available for use in Federal and state courts and by other governmental 
bodies unless the information is classified, privileged, or otherwise 
protected from public disclosure.
    (b) Releasability factors. In deciding whether to authorize release 
of official information, the deciding official should consider the 
following:
    (1) Has the requester complied with DA policy governing the release 
of official documents in Sec. 516.41(d) of this part.
    (2) Is the request unduly burdensome or otherwise inappropriate 
under the applicable court rules?
    (3) Is the disclosure appropriate under the rules of procedure 
governing the matter in which the request arose?
    (4) Would the disclosure violate a statute, executive order, 
regulation, or directive?
    (5) Is the disclosure appropriate under the relevant substantive law 
concerning privilege?
    (6) Would the disclosure reveal information properly classified 
pursuant to the DOD Information Security Program under AR 380-5, 
unclassified technical data withheld from public release pursuant to 32 
CFR Sec. 250, or other matters exempt from unrestricted disclosure?
    (7) Would disclosure interfere with ongoing enforcement proceedings, 
compromise constitutional rights, reveal the identity of an intelligence 
source or confidential informant, disclose trade secrets or confidential 
commercial or financial information, or, otherwise be inappropriate 
under the circumstances?
    (8) Would the disclosure violate any person's expectation of 
confidentiality or privacy?



Sec. 516.45  Records determined to be releasable.

    If the deciding official, after considering the factors set forth in 
Sec. 536.44,

[[Page 101]]

determines that all or part of requested official records are 
releasable, copies of the records should be furnished to the requester.



Sec. 516.46  Records determined not to be releasable.

    (a) General. If the deciding official, after considering the factors 
in Sec. 516.44, determines that all or part of requested official 
records should not be released, he will promptly communicate directly 
with the attorney or individual who caused the issuance of the subpoena, 
order, or request and seek to resolve the matter informally. If the 
subpoena or order is invalid, he should explain the basis of the 
invalidity. The deciding official should also explain why the records 
requested are privileged from release. The deciding official should 
attempt to obtain the agreement of the requester to withdraw the 
subpoena, order, or request or to modify the subpoena, order, or request 
so that it pertains only to records which may be released. (See figure 
G-1, appendix G, of this part.)
    (b) Information protected by the Privacy Act.
    (1) A subpoena duces tecum or other legal process signed by an 
attorney or clerk of court for records protected by the Privacy Act, 5 
U.S.C. 552a, does not justify the release of the protected records. The 
deciding official should explain to the requester that the Privacy Act 
precludes disclosure of records in a system of records without the 
written consent of the subject of the records or ``pursuant to the order 
of a court of competent jurisdiction.'' (See 5 U.S.C. 552a(b)(11)). An 
``order of the court'' for the purpose of subsection 5 U.S.C. 
552a(b)(11) is an order or writ requiring the production of the records, 
signed by a judge or magistrate.
    (2) Unclassified records otherwise privileged from release under 5 
U.S.C. 552a may be released to the court under either of the following 
conditions:
    (i) The subpoena is accompanied by an order signed by a judge or 
magistrate, or such order is separately served, that orders the person 
to whom the records pertain to release the specific records, or that 
orders copies of the records be delivered to the clerk of court, and 
indicates that the court has determined the materiality of the records 
and the nonavailability of a claim of privilege.
    (ii) The clerk of the court is empowered by local statute or 
practice to receive the records under seal subject to request that they 
be withheld from the parties until the court determines whether the 
records are material to the issues and until any question of privilege 
is resolved.
    (iii) Subpoenas for alcohol abuse or drug abuse treatment records 
must be processed under 42 U.S.C. 290dd-3 and 290ee-3, and Public Health 
Service regulations published at 42 CFR 2.1--2.67.
    (iv) Upon request, SJAs and legal advisers may furnish to the 
attorney for the injured party or the tortfeasor's attorney or insurance 
company a copy of the narrative summary of medical care that relates to 
a claim under subpart E of this part. If additional medical records are 
requested, only those that directly pertain to the pending action will 
be furnished. If furnishing copies of medical records would prejudice 
the cause of action, the matter will be reported to Litigation Division.
    (c) Referral to Litigation Division. If the SJA or legal adviser is 
not able to resolve a request for Army records informally, he should 
contact Litigation Division.
    (1) Litigation Division may respond to subpoenas or orders for 
records privileged from release by informing the local U.S. Attorney 
about the subpoena and requesting that office file a motion to quash the 
subpoena or a motion for a protective order. The records privileged from 
release should be retained by the custodian pending the court's ruling 
upon the government's motion.
    (2) When a motion to quash or for a protective order is not filed, 
or the motion is unsuccessful, and the appropriate DA official has 
determined that no further efforts will be made to protect the records, 
copies of the records (authenticated if necessary) will be submitted to 
the court (or to the clerk of court) in response to the subpoena or 
order.
    (d) Classified and privileged materials. Requests from DOJ, U.S. 
Attorneys, or attorneys for other governmental entities for records 
which are

[[Page 102]]

classified or otherwise privileged from release will be referred to 
Litigation Division. (See Sec. 516.41(g).

             DA Personnel as Witnesses in Private Litigation



Sec. 516.47  Response to subpoenas, orders, or requests for witnesses.

    (a) Policy. The involvement of present or former DA personnel in 
private litigation is solely a personal matter between the witness and 
the requesting party, unless one or more of the following conditions 
apply:
    (1) The testimony involves official information. (See appendix F--
Glossary to this part).
    (2) The witness is to testify as an expert.
    (3) The absence of the witness from duty will seriously interfere 
with the accomplishment of a military mission.
    (b) Former DA personnel. Former DA personnel may freely respond to 
requests for interviews and subpoenas except in instances involving 
official information (paragraph (a)(1) of this section) or concerning 
expert testimony prohibited by Sec. 516.49. In those instances, the 
subject of the request or subpoena should take the action specified in 
Secs. 516.41(c) and 516.42.
    (c) Present DA personnel. Present DA personnel will refer all 
requests for interviews and subpoenas for testimony in private 
litigation through their supervisor to the appropriate SJA or legal 
adviser.
    (d) Discretion to testify. Any individual not wishing to grant an 
interview or to testify concerning private litigation may seek the 
advice of an Army attorney concerning the consequences, if any, of 
refusal. Any individual not authorized to consult with Army counsel 
should consult with private counsel, at no expense to the government.



Sec. 516.48  Official information.

    (a) In instances involving Sec. 516.47(a)(1), the matter will be 
referred to the SJA or legal adviser serving the organization of the 
individual whose testimony is requested, or to HQDA pursuant to 
Sec. 516.47(a). The deciding official will determine whether to release 
the information sought under the principles established in Sec. 516.44. 
If funding by the United States is requested, see Sec. 516.55(d).
    (b) If the deciding official determines that the information may be 
released, the individual will be permitted to be interviewed, deposed, 
or to appear as a witness in court provided such interview or appearance 
is consistent with the requirements of Secs. 516.49 and 516.50. (See, 
for example, figure G-2, appendix G, to this part). A JA or DA civilian 
attorney should be present during any interview or testimony to act as 
legal representative of the Army. If a question seeks information not 
previously authorized for release, the legal representative will advise 
the witness not to answer. If necessary to avoid release of the 
information, the legal representative will advise the witness to 
terminate the interview or deposition, or in the case of testimony in 
court, advise the judge that DOD directives and Army regulations 
preclude the witness from answering without HQDA approval. Every effort 
should be made, however, to substitute releasable information and to 
continue the interview or testimony.



Sec. 516.49  Expert witnesses.

    (a) General rule. Present DA personnel will not provide, with or 
without compensation, opinion or expert testimony either in private 
litigation or in litigation in which the United States has an interest 
for a party other than the United States. Former DA personnel will not 
provide, with or without compensation, opinion or expert testimony 
concerning official information, subjects, or activities either in 
private litigation or in litigation in which the United States has an 
interest for a party other than the United States. (See figure G-3, 
appendix G of this part). An SJA or legal adviser is authorized to deny 
a request for expert testimony, which decision may be appealed to 
Litigation Division.
    (b) Exception to the general prohibition. If a requester can show 
exceptional need or unique circumstances, and the anticipated testimony 
will not be adverse to the interests of the United States, Litigation 
Division may grant special written authorization for present or former 
DA personnel to testify as expert or opinion witnesses at

[[Page 103]]

no expense to the United States. In no event may present or former DA 
personnel furnish expert or opinion testimony in a case in which the 
United States has an interest for a party whose interests are adverse to 
the interests of the United States.
    (c) Exception for AMEDD personnel. Members of the Army medical 
department or other qualified specialists may testify in private 
litigation with the following limitations (See figure G-4, appendix G, 
of this part):
    (1) The litigation involves patients they have treated, 
investigations they have made, laboratory tests they have conducted, or 
other actions taken in the regular course of their duties.
    (2) They limit their testimony to factual matters such as the 
following: their observations of the patient or other operative facts; 
the treatment prescribed or corrective action taken; course of recovery 
or steps required for repair of damage suffered; and, contemplated 
future treatment.
    (3) Their testimony may not extend to expert or opinion testimony, 
to hypothetical questions, or to a prognosis.
    (d) Court-ordered expert or opinion testimony. If a court or other 
appropriate authority orders expert or opinion testimony, the witness 
will immediately notify Litigation Division. If Litigation Division 
determines it will not challenge the subpoena or order, the witness will 
comply with the subpoena or order. If directed by Litigation Division, 
however, the witness will respectfully decline to comply with the 
subpoena or order. (See United States ex. rel. Touhy v. Ragen, 340 U.S. 
462 (1951)).
    (e) Expert witness fees. All fees tendered to present DA personnel 
as an expert or opinion witness, to the extent they exceed actual 
travel, meals, and lodging expenses of the witness, will be remitted to 
the Treasurer of the United States.



Sec. 516.50  Interference with mission.

    If the absence of a witness from duty will seriously interfere with 
the accomplishment of a military mission, the SJA or legal adviser will 
advise the requesting party and attempt to make alternative 
arrangements. If these efforts fail, the SJA or legal adviser will refer 
the matter to Litigation Division.

          Litigation in Which the United States Has an Interest



Sec. 516.51  Response to subpoenas, orders, or requests for witnesses.

    (a) Referral to a deciding official. Requests, subpoenas, or orders 
for official information, interviews or testimony of present or former 
DA personnel in litigation or potential litigation in which the United 
States has an interest, including requests from DOJ, will be resolved by 
the SJA or legal adviser pursuant to the principles of this subpart. 
Litigation Division will be consulted on issues that cannot be resolved 
by the SJA or legal adviser.
    (b) Reassignment of witnesses. When requested by the U.S. Attorney, 
the SJA or legal adviser will ensure that no witnesses are reassigned 
from the judicial district without advising the DOJ attorney. If a 
witness is vital to the government's case and trial is imminent, the SJA 
or legal adviser should make informal arrangements to retain the witness 
in the command until trial. If this is not feasible, or if a 
satisfactory arrangement cannot be reached with the DOJ attorney, the 
SJA or legal adviser should notify Litigation Division.



Sec. 516.52  Expert witnesses.

    Requests for present or former DA personnel as expert or opinion 
witnesses from DOJ or other attorneys representing the United States 
will be referred to Litigation Division unless the request involves a 
matter that has been delegated by Litigation Division to an SJA or legal 
adviser. In no event, may present or former DA personnel furnish expert 
or opinion testimony in a case in which the United States has an 
interest for a party whose interests are adverse to the interests of the 
United States.



Sec. 516.53  News media and other inquiries.

    News media inquiries regarding litigation or potential litigation 
will be referred to the appropriate public affairs office. DA personnel 
will not comment on any matter presently or potentially in litigation 
without proper clearance. Local public affairs officers will refer press 
inquiries to HQDA

[[Page 104]]

(SAPA), WASH DC 20310-1500, with appropriate recommendations for review 
and approval by the Office of the Chief of Public Affairs. All releases 
of information regarding actual or potential litigation will be 
coordinated with Litigation Division prior to release.

                Status, Travel, and Expenses of Witnesses



Sec. 516.54  Witnesses for the United States.

    (a) Status of witness. A military member authorized to appear as a 
witness for the United States, including those authorized to appear 
under Sec. 516.55(d), will be placed on temporary duty. If USAR or NG 
personnel are requested as witnesses for the United States, and if their 
testimony arises from their active duty service, they should be placed 
on active duty to testify. The status of a civilian employee will be 
determined under Federal Personnel Manual 630, subchapter 10. DA 
personnel who appear as necessary witnesses for a party asserting the 
government's claim for medical care expenses are witnesses for the 
United States.
    (b) Travel arrangements. Travel arrangements for witnesses for the 
United States normally are made by DOJ through Litigation Division for 
other than local travel. Litigation Division will issue instructions for 
this travel, including fund citation, to the appropriate commander. A 
U.S. Attorney, or an attorney asserting the government's medical care 
claim under subpart E, may make arrangements for local travel through 
the SJA or legal adviser for attendance of a witness who is stationed at 
an installation within the same judicial district, or not more than 100 
miles from the place where testifying. Other requests, including those 
under Sec. 516.55(d), will be referred to Litigation Division. The 
instructions from Litigation Division, or the request from the U.S. 
Attorney or the attorney asserting the government's claim, will serve as 
a basis for the issuance of appropriate travel orders by the local 
commander.
    (c) Travel and per diem expenses. The witness' commander or 
supervisor should ensure the witness has sufficient funds to defray 
expenses. The SJA or legal adviser will provide assistance.
    (1) Where local travel is performed at the request of a U.S. 
Attorney and the testimony does not involve information acquired in the 
performance of duties, transportation arrangements and any per diem 
expenses are the responsibility of the U.S. Attorney.
    (2) An attorney asserting the government's medical care or property 
claim may be required to advance local travel expense money to the 
witness requested and to include these in recoverable costs where the 
government's claim is not large enough to justify expenditures of 
government travel funds.
    (3) Other local travel and per diem expense for cases involving Army 
activities or claims are proper expenses of the command issuing the 
orders.
    (4) Litigation Division will furnish travel expense and per diem 
funds for other than local travel and will receive reimbursement from 
DOJ or other government agencies as appropriate.



Sec. 516.55  Witnesses for a State or private litigant.

    (a) Status of witness. If authorized to appear as a witness for a 
state or private litigant, and the testimony to be given relates to 
information obtained in the performance of official duties, a military 
member will attend in a permissive TDY status. If authorized to appear 
as a witness, but the testimony does not relate to information obtained 
in the performance of official duties, a military member may be granted 
a pass or permissive TDY under AR 630-5, or be required to take ordinary 
leave. The status of a civilian employee will be determined under 5 CFR 
Chapter I.
    (b) Travel arrangements. The requesting party or state agency will 
make all travel arrangements for attendance of DA personnel authorized 
to appear as witnesses for a state or private litigant. The local 
commander may issue appropriate orders when necessary.
    (c) Travel expenses. The United States may not pay travel, meals, 
and lodging expenses of the witness, other than normal allowances for 
subsistence pursuant to the DOD Military Pay and Allowances Entitlements 
Manual. These expenses are solely a matter between

[[Page 105]]

the witness and the party seeking his appearance. Witnesses ordinarily 
should be advised to require advance payment of such expenses. Military 
personnel authorized to appear in a pass or permissive TDY status are 
not entitled to receive witness attendance fees, but may accept travel, 
meals, and lodging expense money from the requesting litigant. All 
witness fees tendered the military member, to the extent they exceed 
such actual expenses of the member, will be remitted to the Treasurer of 
the United States. A civilian employee authorized to appear in his or 
her official capacity will accept the authorized witness fees, in 
addition to the allowance for travel and subsistence, and make 
disposition of the witness fees as instructed by his or her personnel 
office.
    (d) Funding by the United States. Requests for DA personnel to 
appear at government expense as witnesses in state or local proceedings 
for a party other than the United States, including cases involving 
domestic violence or child abuse, will be referred to Litigation 
Division. Litigation Division may authorize travel and per diem expenses 
under Sec. 516.54 when the case is one in which the United States has a 
significant interest.



Sec. 516.56  Witnesses before foreign tribunals.

    (a) Referral to the SJA. Requests or subpoenas from a foreign 
government or tribunal for present DA personnel stationed or employed 
within that country to be interviewed or to appear as witnesses will be 
forwarded to the SJA of the command exercising general court-martial 
jurisdiction over the unit to which the individual is assigned, 
attached, or employed. The SJA will determine the following:
    (1) Whether a consideration listed in Sec. 516.47(a)(1) through 
(a)(3) applies.
    (2) Whether the information requested is releasable under the 
principles established in Sec. 516.43 through Sec. 516.46.
    (3) Whether the approval of the American Embassy should be obtained 
because the person is attached to the Embassy staff or a question of 
diplomatic immunity may be involved.
    (b) United States has an interest in the litigation. If the SJA 
determines that the United States has an interest in the litigation, the 
commander may authorize the interview or order the individual's 
attendance in a temporary duty status. The United States will be deemed 
to have an interest in the litigation if it is bound by treaty or other 
international agreement to ensure the attendance of such personnel.
    (c) United States has no interest in the litigation. If the SJA 
determines that the United States does not have an interest in the 
litigation, the commander may authorize the interview or the appearance 
of the witness under the principles established in Sec. 516.47 through 
Sec. 516.50.
    (d) Witnesses located outside the requester's country. If the 
requested witness is stationed in a country other than the requester's, 
the matter will be referred to Litigation Division.



         Subpart H--Remedies in Procurement Fraud and Corruption



Sec. 516.57  Purpose.

    This subpart delineates the policies, procedures, and 
responsibilities for reporting and resolving allegations of procurement 
fraud or irregularities (PFI) within DA. It implements DOD Directive 
7050.5. (See appendix D to this part.)



Sec. 516.58  Policies.

    (a) Procurement fraud and irregularities will be promptly and 
thoroughly addressed whenever encountered. Reports will be initiated in 
a timely manner and will be supplemented as appropriate.
    (b) Investigations will be monitored to see that interim corrective 
action is taken and that final action is taken as expeditiously as 
possible.
    (c) This regulation establishes the Procurement Fraud Division 
(PFD), U.S. Army Legal Services Agency, as the single centralized 
organization within the Army to coordinate and monitor criminal, civil, 
contractual, and administrative remedies in significant cases of fraud 
or corruption relating to Army procurement.
    (d) The key elements of the Army's procurement fraud program follow:

[[Page 106]]

centralized policy making and program direction; fraud remedies 
coordination; decentralized responsibility for operational matters, such 
as reporting and remedial action; continuous case monitorship by PFD 
from the initial report until final disposition; and, command-wide fraud 
awareness training.
    (e) Remedies for PFI will be pursued in a timely manner and properly 
coordinated with other agencies. Every effort will be made to support 
criminal investigation and prosecution of fraudulent activity.
    (f) A specific remedies plan will be formulated for each significant 
case of fraud or corruption involving procurement.
    (g) Coordination on the status and disposition of cases will be 
maintained between PFD, OTJAG, PFI Coordinators at MACOMs, and 
Procurement Fraud Advisers at subordinate commands. Coordination of 
procurement and personnel actions will be accomplished with 
investigative agencies as required by those agencies.
    (h) Training which relates to fraud and corruption in the 
procurement process is a significant element of this program.



Sec. 516.59  Duties and procedures.

    (a) TJAG has overall responsibility for the coordination of remedies 
in procurement fraud and corruption within the Army. This responsibility 
has been delegated to PFD. Functions of PFD will include the following:
    (1) Serving as the single centralized organization in the Army to 
monitor the status of, and ensure the coordination of, criminal, civil, 
contractual, and administrative remedies for each significant case of 
fraud or corruption.
    (2) Receiving reports of procurement fraud and corruption from any 
source including, but not limited to the following: DOD criminal 
investigative organizations; audit agencies; contracting officers; 
inspectors general of the executive branch; correspondence from the 
public; and, commanders. This provision does not repeal any other 
reporting requirement but establishes PFD as a recipient of PFI 
information at the earliest possible time.
    (3) Establishing a monitoring system within OTJAG for all cases of 
fraud and corruption that relate to Army procurement.
    (4) Discussing regularly with the U.S. Army Criminal Investigation 
Command (USACIDC) or the assigned DOD criminal investigative 
organization the current status of significant fraud or corruption cases 
and their coordination with prosecutive authorities.
    (5) Ensuring that all criminal, civil, contractual, and 
administrative remedies are considered in each significant fraud or 
corruption case and that timely and applicable remedies are undertaken 
by commanders, contracting officers, and suspension and debarment 
authorities. For example, consideration of suspension or debarment of a 
contractor or individual should normally be initiated within 30 days of 
indictment or conviction.
    (6) Coordinating, as appropriate, with other DOD components affected 
by a significant fraud or corruption case being monitored by the Army.
    (7) Developing, with the responsible DOD investigative organization, 
Procurement Fraud Coordinators and Advisers, and other involved 
agencies, a specific comprehensive remedies plan for each significant 
fraud or corruption case.
    (8) Coordinating remedies with DOJ. In the case of ongoing criminal 
investigations, coordinate remedies through, or with the prior knowledge 
of, the DOD criminal investigative organization responsible for the 
case.
    (9) In significant fraud or corruption cases, identifying and 
documenting any known adverse impact on a DOD mission, and including the 
information in any remedies plan.
    (10) Providing the appropriate DOD criminal investigative 
organization with information concerning final remedies as a result of 
an investigation by that organization.
    (11) Receiving notifications from criminal investigative agencies 
concerning substituted, defective, and counterfeit hardware in which a 
serious hazard to health, safety or operational readiness is indicated; 
ensuring that appropriate safety, procurement and program officials are 
informed in

[[Page 107]]

accordance with enclosure 3 of DOD Directive 7050.5. PFD will 
specifically ensure that contract reviews (DD 350 reports) and adverse 
impact statements (See Sec. 516.64(c)(2) are prepared, and that such 
information is used to determine if further inquiry is warranted to 
prevent reoccurrence and to detect other possible fraud. Impact 
statements will not be released to prosecutive agencies until reviewed 
by PFD. When appropriate, PFD will coordinate with other DOD agencies to 
establish a lead agency for victim impact statements in multi-DOD agency 
cases.
    (b) The Commanding General, USACIDC, will take the following 
actions:
    (1) Notify PFD of any investigations involving fraud or corruption 
related to procurement activities.
    (2) Notify other DOD component criminal investigative organizations 
when investigations involving fraud or corruption affect that component. 
This includes evidence of fraud by a contractor, subcontractor, or 
employee of either, on current or past contracts with, or affecting, 
that component.
    (3) Notify the Defense Investigative Service of any investigations 
that develop evidence which affects DOD cleared industrial facilities or 
personnel.
    (4) Determine the effect on any ongoing investigations or 
prosecutions of any criminal, civil, contractual, or administrative 
actions being considered by a centralized organization and advise of any 
adverse impact.
    (5) Promptly provide commanders, contracting officers, Procurement 
Fraud Advisers, and suspension and debarment authorities, when needed to 
allow consideration of applicable remedies, any court records, 
documents, or other evidence of fraud or corruption from ongoing or 
completed criminal investigations. In cases of indictment or conviction 
of a contractor or individual, the information will be provided in time 
for initiation, if appropriate, of suspension or debarment action within 
30 days of the indictment or conviction.
    (6) Provide prosecutive authorities and centralized organizations 
with timely information on the adverse impact on a DOD mission of fraud 
or corruption that relates to DOD procurement activities. This 
information will be obtained from individuals such as the head of the 
contracting agency, appropriate commanders, and staff agencies. Some 
examples of adverse impact on a DOD mission are endangerment of 
personnel or property, monetary loss, compromise of the procurement 
process, or reduction or loss of mission readiness.
    (7) Discuss regularly with Procurement Fraud Advisers the status of 
significant investigations of fraud or corruption and their coordination 
with prosecutive authorities and provide documents and reports resulting 
from the investigations.
    (c) Commanders of service schools conducting procurement or 
procurement-related training (such as The Judge Advocate General's 
School, the U.S. Military Police School, and the U.S. Army Logistics 
Management Center) will ensure the following:
    (1) All procurement and procurement-related training includes a 
period of instruction on fraud and corruption in the procurement 
process. The length of the period of instruction will be appropriate to 
the duration and nature of the training.
    (2) Training materials are developed to support that training.
    (3) Training materials developed will be sent to MACOM PFI 
Coordinators.
    (d) MACOM commanders and heads of contracting activities will ensure 
the following:
    (1) Substantial indications of fraud or corruption relating to Army 
contracts or Army administered contracts are reported promptly to the 
supporting USACIDC element and the Procurement Fraud Division.
    (2) Information provided includes reports by contracting officers 
under DFARS 209.406-3.



Sec. 516.60  Procurement fraud and irregularities programs at MACOMs.

    (a) Command counsel and SJAs at MACOMs will develop a program and 
appoint an attorney as PFI Coordinator for their command. Chief counsel 
and SJAs at commands with procurement advisory responsibility will 
appoint an attorney as a Procurement Fraud Adviser (PFA) to manage the

[[Page 108]]

PFI program at their installations as well.
    (b) Provision may be made for activities not having sufficient 
attorney assets to obtain assistance from nearby installations that have 
a PFA.
    (c) Reports and recommendations will be transmitted through command 
channels to the PFI coordinator for the affected MACOM.
    (d) Command counsel, chief counsel, and SJAs will exercise 
supervisory authority to ensure effective operation of the fraud program 
and coordination of remedies within their organizations.
    (e) The MACOM PFI Coordinator will have overall responsibility for 
the design and implementation of the MACOM's procurement fraud program.
    (f) PFAs and PFI Coordinators will coordinate with the appropriate 
local CID or Defense Criminal Investigative Service (DCIS) activity to 
assure the prompt notification and coordination of all Procurement Fraud 
cases.



Sec. 516.61  Reporting requirements.

    (a) Typical fraud indicators during the procurement cycle are listed 
in figure D-1, appendix G, to this part. The mere presence of one or 
more of these indicators does not, by itself, require reporting under 
paragraph b of this section. Reports should be submitted if there is a 
reasonable suspicion of procurement fraud or irregularity or the 
procuring agency refers the matter for investigation.
    (b) ``Procurement Flash Reports'' will be transmitted by FAX 
directly to PFD whenever a PFI Coordinator or PFA receives notice of a 
PFI involving the Army. To facilitate filing, a separate sheet should be 
used for each case reported. These reports will provide a succinct 
summary of the following available information:
    (1) Name and address of contractor.
    (2) Known subsidiaries of parent firms.
    (3) Contracts involved in potential fraud.
    (4) Nature of potential fraud.
    (5) Summary of pertinent facts.
    (6) Possible damages.
    (7) Investigative agencies involved.
    (8) Local PFAs (name and phone numbers).

Any of the above categories that cannot be completed will be annotated 
as ``unknown at present.''
    (c) When a report is required by DFARS or is requested by PFD, the 
provisions of DFARS 209.406-3 (48 CFR 209.406-3) will be followed. That 
paragraph provides the basic content and format for PFI reports.
    (d) All personnel will cooperate to ensure that investigations and 
prosecutions of procurement fraud are completed in a timely and thorough 
manner. Requests for assistance from federal prosecutors should be 
processed through the local PFA whenever possible. Requests for federal 
investigators will be processed through the supporting USACIDC and the 
PFA will be notified. When the conduct of criminal investigations and 
prosecutions conflict with the progress of procurements, reasonable 
deference will be given to criminal investigators and prosecutors 
whenever possible. Any serious conflict that cannot be resolved at a 
local level will be immediately reported to the PFI Coordinator or PFD 
for action.
    (e) PFI Coordinators and PFAs may request access to information 
obtained during criminal investigations that is not protected by Fed. R. 
Crim. P. 6(e) and use this information to assist them in taking 
appropriate administrative, contractual, and civil remedies. Requests 
for this information should be made directly to the appropriate federal 
investigative agency. The investigative organization may withhold 
requested information if release would compromise an investigation. 
Difficulties in obtaining information which cannot be resolved locally 
will be referred to PFD for appropriate action.
    (f) USACIDC will notify, in writing, local PFAs as well as PFD 
within 30 days, of initiation of a significant investigation of fraud or 
corruption related to Army procurement activities. Such notification 
will include the following:
    (1) Case title.
    (2) USACIDC Report of Investigation number.
    (3) Responsible investigative agency or agencies.
    (4) Office of primary responsibility.
    (5) Date opened.

[[Page 109]]

    (6) Summary of facts.
    (7) Suspected offense.
    (g) The transmission of the information in f above may be delayed if 
the Commanding General, USACIDC, or the head of another DOD criminal 
investigation organization determines the transmission would compromise 
the success of any case or its prosecution. The prosecutive authorities 
dealing with the case will be consulted, when appropriate, in making 
such determinations.
    (h) USACIDC will obtain the following information at the earliest 
possible point in an investigation of fraud or corruption that relates 
to DOD procurement activities, whenever possible without reliance on 
grand jury subpoenas:
    (1) The individuals suspected to be responsible.
    (2) The suspected firm's organizational structure.
    (3) The firm's financial and contract history.
    (4) The firm's organizational documents and records.
    (5) Statements of witnesses.
    (6) Monetary loss to the government.
    (7) Other relevant information.
    This information will be provided to PFD or other cognizant DOD 
centralized organization.
    (i) PFD will provide written notification to the Defense 
Investigative Service of all suspension or debarment actions taken by 
the Army.



Sec. 516.62  PFD and HQ USACIDC coordination.

    PFD and HQ USACIDC will coordinate as follows:
    (a) Discuss the status of significant procurement fraud or 
corruption investigations being conducted by USACIDC and possible 
remedies. These discussions should take place on a regular basis.
    (b) Discuss the coordination of possible criminal, civil, 
contractual, or administrative remedies with prosecutive authorities.
    (c) PFD will maintain liaison with other DOD centralized 
organizations and will coordinate remedies with those centralized 
organizations affected by a significant investigation of fraud or 
corruption that relates to DOD procurement activities.
    (d) Ascertain the effect on any ongoing investigation of the 
initiation of civil, contractual, or administrative remedies as follows:
    (1) PFD will maintain liaison with USACIDC and other DOD criminal 
investigative organizations in order to determine the advisability of 
initiating any civil, contractual, or administrative actions.
    (2) USACIDC will advise PFD of any adverse effect on an 
investigation or prosecution by the initiation of civil, contractual, or 
administrative actions.



Sec. 516.63  Coordination with DOJ.

    (a) PFD will establish and maintain liaison with DOJ and the Defense 
Procurement Fraud Unit on significant fraud and corruption cases to 
accomplish the following:
    (1) Monitor criminal prosecutions.
    (2) Initiate litigation for civil recovery.
    (3) Coordinate administrative or contractual actions while criminal 
or civil proceedings are pending.
    (4) Coordinate settlement agreements or proposed settlements of 
criminal, civil, and administrative actions.
    (5) Respond to DOJ requests for information and assistance.
    (b) In cases where there is an ongoing criminal investigation, 
coordination with DOJ by any member of the Army normally will be 
accomplished by or through USACIDC or the cognizant DOD criminal 
investigative organization, or with the investigative organization's 
advance knowledge. This does not apply to the routine exchange of 
information between government attorneys in the course of civil 
litigation or the routine referral of cases to DOJ for civil recovery.
    (c) Initial contact by any attorney associated with the U.S. Army 
with a U.S. Attorney's office or DOJ, whether initiated by the Army 
attorney or not, will be reported to PFD. Activity after the initial 
contact will only be reported to PFD when the Army attorney feels there 
has been a significant event in the case. If the Army attorney is not a 
PFI Coordinator or a PFA, the matter should be referred to one of these

[[Page 110]]

two attorneys as soon as possible. Routine exchanges between Army 
attorneys and U.S. Attorney's offices or DOJ do not need to be brought 
to the attention of PFD.



Sec. 516.64  Comprehensive remedies plan.

    (a) A specific, comprehensive remedies plan will be developed in 
each significant investigation involving fraud or corruption that 
relates to Army procurement activities. When possible, these plans 
should be forwarded with the DFARS 209.406-3 reports. In no case, 
however, should the report be delayed an appreciable time pending 
completion of the plan. The format for a remedies plan is at figure H-2, 
appendix G, to this part.
    (b) The plan will be developed initially by the PFA with the 
participation of the appropriate criminal investigators and other 
relevant personnel such as the contracting officer. In significant cases 
the PFA should also coordinate a remedies plan early with PFD. Defective 
product/product substitution remedies plans must comply with the 
requirements of appendix D to this part.
    (c) A comprehensive remedies plan will include at a minimum the 
following information and considerations:
    (1) Summary of allegations and investigative results.
    (2) Statement of any adverse impact on a DOD mission. DOD 
investigative organizations, commanders, or procurement officials will 
also provide this information to prosecutive authorities to enhance 
prosecution of offenses or to prepare a victim impact statement pursuant 
to Fed. R. Crim. P. 32(c)(2).
    (3) The impact upon combat readiness and safety.
    (4) Consideration of each criminal, civil, contractual, and 
administrative remedy available, and documentation of those remedies, 
either planned, in progress, or completed.
    (5) Restrictions on the pursuit of any remedies such as grand jury 
information or possible compromise of the investigation.
    (d) When remedies plans are received by PFD they will be coordinated 
with the headquarters of the appropriate DOD criminal investigative 
organization involved.
    (e) Testing necessary to support the investigation and remedies plan 
should comply with figure H-3, appendix G, to this part.



Sec. 516.65  Litigation reports in civil recovery cases.

    (a) All substantiated PFI cases will be evaluated by PFAs to 
determine whether it is appropriate to recommend civil recovery 
proceedings.
    (b) Recovery should be considered under both statutory and common 
law theories, including but not limited to the following:
    (1) False Claims Act, 31 USC 3729.
    (2) Anti-Kickback Act, 41 USC 51.
    (3) Sherman Act, 15 USC 1-7.
    (4) Racketeer Influenced and Corrupt Organizations Act, 18 USC 1961-
1968.
    (5) Common law fraud.
    (6) Unjust enrichment.
    (7) Constructive trust.
    (8) Cases where contracts have been procured in violation of the 
conflict of interest statute, 18 USC 218. See K&R Engineering Co. v. 
United States, 616 F.2d 469 (Ct. Cl., 1980).
    (c) When civil recovery appears possible, PFD should be consulted to 
determine if a litigation report is necessary. If requested by PFD, the 
report should summarize the available evidence and applicable theories 
of recovery and be prepared under Sec. 516.23 of this part. To avoid 
unnecessary duplication of effort, recovery reports may include and make 
liberal references to other reports previously prepared on a given case 
such as the DFARS 209.406-3 (48 CFR 209.406-3) report.
    (d) The MACOM PFI coordinator and PFA will monitor all civil fraud 
recovery efforts throughout the command and will provide training and 
technical assistance as required. Status reports of all civil fraud 
recovery efforts will be provided through channels as required by PFD.



Sec. 516.66  Administrative and contractual actions.

    (a) The following remedial options should be considered in response 
to confirmed fraudulent activity:
    (1) Contractual.

[[Page 111]]

    (i) Termination of contract for default.
    (ii) Nonaward of contract based upon a finding of contractor 
nonresponsibility. (If this appears to be a valid option, a DFARS 
209.406-3 (48 CFR 209.406-3) report must be prepared where contractor 
nonresponsibility is based on lack of integrity).
    (iii) Rescission of contract.
    (iv) Revocation of acceptance.
    (v) Use of contract warranties.
    (vi) Withholding of payments to contractor. In the case of 
withholding pursuant to DFARS 2032.173, the Chief, PFD, is the Army 
Remedy Coordinating Official.
    (vii) Offset of payments due to contractor from other contracts.
    (viii) Revocation of facility security clearances.
    (ix) Increased level of quality assurance.
    (x) Refusal to accept nonconforming goods.
    (xi) Denial of claims submitted by contractors.
    (xii) Removal of contract from automated solicitation or payment 
system.
    (2) Administrative.
    (i) Change in contracting forms and procedures.
    (ii) Removal or reassignment of government personnel.
    (iii) Review of contract administration and payment controls.
    (iv) Revocation of warrant of contracting officer.
    (v) Suspension of contractor.
    (vi) Debarment of contractor.
    (b) In cases which are pending review or action by DOJ, PFAs should 
coordinate with the DOJ attorney handling the case prior to initiating 
any contractual or administrative remedy. In the case of ongoing 
criminal investigations, this coordination will be accomplished through 
the appropriate DOD criminal investigation organization.



Sec. 516.67  Overseas cases of fraud or corruption.

    (a) Commanders of overseas major commands will establish procedures, 
similar to this regulation and consistent with the DFARS, and 
regulations and directives of their respective unified commands, for 
reporting and coordination of available remedies in overseas procurement 
fraud and corruption cases involving foreign firms and individuals. 
Overseas major commands will also maintain liaison with PFD and provide 
periodic reports of remedies coordination results.
    (b) Overseas suspension and debarment actions are governed by DFARS 
209.403 (48 CFR 209.403). The names of all firms and individuals 
suspended or debarred will be expeditiously forwarded to PFD for 
inclusion on the List of Parties Excluded From Federal Procurement or 
NonProcurement Programs.
    (c) Overseas cases of fraud or corruption related to the procurement 
process that involve U.S. firms or U.S. citizens may be referred to PFD 
for coordination of remedies under this regulation.



Sec. 516.68  Program Fraud Civil Remedies Act (PFCRA).

    (a) PFCRA was enacted on 21 October 1986 (Public Law 99-509) and 
implemented by DOD on 30 August 1988 (DOD Directive 5505.5). (See 
appendix E to this part.)
    (b) PFCRA expands the capability of the government to deter and 
recover losses from false, fictitious or fraudulent claims and 
statements. It is also applicable to program fraud and provides an 
administrative remedy in addition to those otherwise available to the 
Army in procurement fraud or pay and entitlements fraud cases.
    (c) As part of the Army implementation, the Secretary of the Army's 
duties and responsibilities under PFCRA as Authority Head are delegated 
to the Army General Counsel. The Chief, Intellectual Property Law 
Division, is the Army's Reviewing Official within the meaning of PFCRA. 
Army implementation also requires DA to follow the policies and 
procedures prescribed in enclosure 2 of DOD Directive 5505.5. (See 
appendix E to this part.)
    (d) The DOD Inspector General (IG) is the Investigating Official 
within DOD. The duties of this position will be performed by the 
Assistant IG For Investigations. This individual is vested with the 
authority to investigate all allegations of liability under PFCRA. That 
authority includes the power to

[[Page 112]]

task subordinate investigative agencies to review and report on 
allegations that are subject to PFCRA. If the Investigative Official 
concludes that an action under PFCRA is warranted in an Army case, the 
official will submit a report containing the findings and conclusions of 
such investigation through PFD to the Army Reviewing Official.
    (e) Pursuant to DOD IG guidance, USACIDC will forward appropriate 
cases that appear to qualify for resolution under PFCRA to the 
Investigating Official in a timely manner. Additionally, USACIDC will 
forward current information regarding the status of remedies pending or 
concluded. USACIDC may obtain remedies information by coordinating with 
PFD and the cognizant command.
    (f) In pay and entitlement or transportation operation fraud cases, 
USACIDC will coordinate with the Office of the Secretary of the Army, 
Financial Management, Review and Oversight Directorate (SAFM-RO), to 
determine the status of any pending or proposed action under the Debt 
Collection Act. This information, in addition to information obtained 
under Sec. 517.68(e), will be forwarded with appropriate cases to the 
Investigating Official.
    (g) In those cases where the Investigating Official has submitted a 
report to the Army Reviewing Official for action under PFCRA, PFD will, 
at the direction of the Reviewing Official, prepare all legal memoranda 
as necessary to transmit the Reviewing Official's intention to issue a 
complaint. As part of this responsibility PFD will do the following: 
coordinate with the affected command or agency to ensure that all 
appropriate remedies have been considered; evaluate the overall 
potential benefits to the Army; and, ensure that action under PFCRA is 
not duplicative of other remedies already taken. In order to fully 
supplement the Reviewing Official's file, PFD may request a litigation 
report.
    (h) PFD will coordinate all cases involving transportation 
operations emanating from Military Traffic Management Command (MTMC) 
activity, under the military transportation exception to the FAR, and 
all cases involving pay and entitlements fraud with SAFM-RO, for 
comments and recommendations. These matters will be forwarded with the 
case file to the Reviewing Official.
    (i) If the Attorney General approves the issuance of a complaint, 
PFD, at the direction of the Army Reviewing Official, shall prepare the 
complaint and all necessary memoranda as required. PFD shall also 
designate attorneys to represent the Authority in hearings under PFCRA.



        Subpart I--Cooperation With the Office of Special Counsel



Sec. 516.69  Introduction.

    This subpart prescribes procedures for cooperation with the Office 
of Special Counsel (OSC) when OSC is investigating alleged prohibited 
personnel practices or other allegations of improper or illegal conduct 
within DA activities.



Sec. 516.70  Policy.

    (a) DA policy follows:
    (1) Civilian personnel actions taken by management officials, 
civilian and military, will conform to laws and regulations implementing 
established merit system principles and will be free of any prohibited 
personnel practices.
    (2) Management officials will take vigorous corrective action when 
prohibited personnel practices occur. Disciplinary measures under AR 
690-700, Chapter 751, may be initiated after consultation and 
coordination with appropriate civilian personnel office and labor 
counselor.
    (b) DA activities will cooperate with OSC in the following ways:
    (1) Promoting merit system principles in civilian employment 
programs within DA.
    (2) Investigating and reporting allegations of improper or illegal 
conduct forwarded to the activity by HQDA.
    (3) Facilitating orderly investigations by the OSC of alleged 
prohibited personnel practices and other matters assigned for 
investigation to the OSC, such as violations of the Whistleblower 
Protection Act of 1989, the Freedom of Information Act, or the Hatch 
Act.

[[Page 113]]



Sec. 516.71  Duties.

    (a) DA General Counsel. The DA General Counsel is responsible for 
the following:
    (1) Provide overall guidance on all issues concerning cooperation 
with OSC, including the investigation of alleged prohibited personnel 
practices and allegations of improper or illegal conduct.
    (2) Review for adequacy and legal sufficiency each OSC report of 
investigation that must be personally reviewed by the Secretary of the 
Army.
    (3) Ensure compliance with the Civil Service Reform Act of 1978 by 
obtaining a suitable investigation of allegations of improper or illegal 
conduct received from OSC. This includes compliance with time limits for 
reporting results of the investigation and personal review of the report 
by the Secretary of the Army when required.
    (4) Forward to the DOD Inspector General (DODIG) copies of each 
allegation of improper or illegal conduct referred to DA by OSC.
    (5) Delegate to The Judge Advocate General the authority to act on 
behalf of the DA General Counsel in all OSC investigations of prohibited 
personnel practices.
    (6) Act upon requests for counsel from ``accused'' or ``suspected'' 
employees.
    (b) Chief, Labor and Employment Law Office. The Chief, Labor and 
Employment Law Office, OTJAG (DAJA-LE) is responsible for the following:
    (1) Act for TJAG as the Senior Management Official in cooperating 
with OSC. As Senior Management Official, the Chief, DAJA-LE, through 
TJAG, will be responsible to the DA General Counsel for administration 
of the policies and procedures contained in this chapter.
    (2) Promptly inform the DA General Counsel of any OSC investigation 
and consult with the DA General Counsel on any legal or policy issue 
arising from an OSC investigation.
    (3) Serve as the HQDA point of contact in providing assistance to 
OSC.
    (4) Act as DA attorney-of-record in administrative matters initiated 
by OSC before the MSPB which arise from an OSC investigation. As DA 
attorney-of-record, the Chief, DAJA-LE, will file necessary pleadings 
and make necessary appearances before the MSPB to represent DA 
interests.
    (5) Monitor ongoing OSC investigations within DA.
    (6) Ensure that appropriate DA personnel are fully apprised of their 
rights, duties and the nature and basis for an OSC investigation.
    (7) Review and prepare recommendations to the General Counsel 
concerning any OSC recommended corrective action referred to DA. Such 
review and recommendations will address whether disciplinary action 
should be taken against DA civilian employees or military members, and 
whether the information warrants referral to appropriate authorities for 
corrective and disciplinary action.
    (8) Seek OSC approval of DA proposed disciplinary action against an 
employee for an alleged prohibited personnel practice or other 
misconduct which is the subject of or related to any OSC investigation.
    (9) Review and prepare recommendations for DA General Counsel 
concerning requests for counsel, to include identifying available DA 
attorneys to act as individual representatives. Upon approval of DA 
General Counsel, appoint DA civilian and military attorneys, to include 
attorneys from the U.S. Army Materiel Command and the Corps of 
Engineers, to represent individual military members or employees.
    (10) Determine, to the extent practicable, whether an investigation 
is being or has been conducted which duplicates, in whole or in part, a 
proposed or incomplete OSC investigation, and convey that information to 
the OSC whenever it might avoid redundant investigative efforts.
    (11) Provide guidance and assistance to activity Labor Counselors in 
fulfilling their duties as Liaison Officers.
    (c) Activity Labor Counselor. The activity Labor Counselor will do 
the following:
    (1) Act as Liaison Officer for OSC investigations arising within the 
command, activity or installation serviced by the Labor Counselor's 
client Employment Office.
    (2) Promptly inform the MACOM labor counselor and the Chief, DAJA-

[[Page 114]]

LE, of any OSC inquiry or investigation.
    (3) Act as the legal representative of the command, activity, or 
installation.
    (4) Assist the OSC investigator with administrative matters related 
to the investigation, such as requests for witnesses and documents.
    (5) Process all OSC requests for documents.
    (6) Make appropriate arrangements for OSC requests to interview 
civilian employees and military members.
    (7) Ensure that personnel involved are advised of the nature and 
basis for an OSC investigation, the authority of the OSC, and their 
rights and duties.
    (8) Consult with the Chief, DAJA-LE, on policy and legal issues 
arising from the OSC investigation.
    (9) Keep the Chief, DAJA-LE, informed of the status of the OSC 
investigation.
    (l0) Act as agency representative before the MSPB in actions 
initiated by employees (individual right of action appeals).



Sec. 516.72  Procedures.

    (a) Witnesses and counsel for consultation.
    (1) DA military and civilian managers, supervisors, and employees 
who are requested by OSC for an interview will be made available in 
accordance with arrangements the Labor Counselor will establish. 
Requests for the testimony of IGs will be coordinated with the Inspector 
General Legal Office, SAIG-ZXL, DSN 227-9734 or Commercial (703) 697-
9734.
    (2) The Labor Counselor will ensure that witnesses are aware of 
their obligation to answer OSC questions, their potential to be 
considered ``suspects'' in OSC investigations, and their right to the 
assistance of counsel during interviews with OSC representatives. If the 
requested witness is not an ``accused'' or ``suspected'' individual and 
the witness asks for assistance of counsel, a DA attorney will be made 
available for the limited purpose of consultation regarding the witness' 
rights and obligations. An attorney-client relationship will not be 
established. (See appendix F to this part).
    (3) The Labor Counselor will arrange for individual counsel for 
consultation from local assets. If local assets are not sufficient, 
assistance may be requested from other DOD activities in the area or 
from HQDA, DAJA-LE. DA attorneys tasked to consult with one or more 
witnesses individually will not be tasked to represent the DA activity 
concerned.
    (4) The Labor Counselor, as the legal representative of the 
activity, is precluded from assisting or representing individual 
witnesses during OSC interviews.
    (b) ``Accused'' or ``suspected'' DA personnel and counsel for 
representation.
    (1) If the OSC identifies a DA civilian employee or a military 
member as an ``accused'' or ``suspected'' individual, or if the Labor 
Counselor concludes that an individual is a ``suspect,'' the Labor 
Counselor will inform the individual. The Labor Counselor also will 
advise the individual of the availability of counsel for representation 
upon approval by DA General Counsel. (See Glossary, Counsel for 
Representation).
    (2) If the ``suspected'' individual desires legal representation by 
DA, the individual must request counsel by submitting a written request 
through DAJA-LE to DA General Counsel. (See figure I-1, appendix G, to 
this part).
    (3) During the investigation but prior to DA General Counsel 
approval of the request for counsel, an ``accused'' or ``suspected'' 
individual will be provided the assistance of counsel for consultation 
in the same manner as any other OSC requested witness. ``Accused'' or 
``suspected'' individuals who do not request counsel for representation 
will be provided counsel for consultation in the same manner as any 
other OSC requested witness.
    (4) If the DA General Counsel approves the request for counsel, the 
Chief, DAJA-LE, will appoint a DA attorney to represent the individual. 
This appointment may be made telephonically but will be confirmed in 
writing. The Chief, DAJA-LE, will make appropriate coordination with 
MACOM SJAs and command counsel to confirm availability of the attorney.
    (5) An attorney appointed by DA may represent a civilian employee in 
any proceeding initiated by OSC before the MSPB. However, counsel 
provided by

[[Page 115]]

DA may not represent the employee in any proceeding initiated by DA, in 
any appeal from a final decision by the MSPB, or in any collateral 
proceeding before any forum other than the MSPB.
    (6) OSC may not bring a disciplinary action before the MSPB against 
a military member. Accordingly, DA counsel will not be required to 
represent the military member in any MSPB disciplinary proceeding. 
However, counsel may represent the member during the OSC investigation 
with the understanding that the evidence obtained by OSC may be referred 
to the member's command for possible disciplinary action under the UCMJ 
or appropriate regulations. If DA initiates action against the military 
member for misconduct disclosed in the OSC investigation, the member 
will obtain counsel as provided under the UCMJ or relevant regulations.
    (c) Records.
    (1) OSC requests for records must be in writing. The Labor Counselor 
will assist OSC representatives in identifying the custodian of specific 
records sought during the inquiry.
    (2) Generally, requested records should be furnished to OSC 
representatives if such records would be released under AR 25-55 or AR 
340-21 to other government agencies in the normal course of official 
business. Records constituting attorney work product should not be 
released without approval of the Chief, DAJA-LE. IG records will not be 
released without the approval of the Inspector General. (AR 20-1). The 
Labor Counselor should seek guidance from the Chief, DAJA-LE, if there 
is any doubt concerning the release of records.
    (3) If, after completion of the OSC investigation, the OSC files a 
complaint against DA or a DA employee, release of records and other 
information will be accomplished pursuant to MSPB rules of discovery (5 
CFR part 1201, subpart B).
    (d) Funding. The command, activity, or installation within which the 
allegations of misconduct arose will provide funding for travel, per 
diem and other necessary expenses related to the OSC investigation. 
These expenses may include appropriate funding for witnesses, counsel 
for consultation and DA General Counsel approved counsel for 
representation.



Sec. 516.73  Assistance from HQDA.

    Labor Counselors may seek guidance on questions arising from 
implementation of this chapter by calling the Chief, DAJA-LE, DSN 225-
9476/9481 or Commercial (703) 695-9476/9481.



     Subpart J--Soldiers Summoned to Serve on State and Local Juries



Sec. 516.74  General.

    (a) This subpart implements 10 U.S.C. Sec. 982 and DOD Directive 
5525.8. It establishes Army policy concerning soldiers on active duty 
who are summoned to serve on state and local juries.
    (b) This subpart does not apply to Army National Guard soldiers in 
an annual training or full-time AGR (Active Guard Reserve) status under 
Title 32, U.S. Code. Soldiers in a Title 32 status must refer to their 
respective state law for relief from state or local jury duty.



Sec. 516.75  Policy.

    (a) Active duty soldiers should fulfill their civic responsibility 
by serving on state and local juries, so long as it does not interfere 
with military duties.
    (b) The following active duty soldiers are exempt from complying 
with summons to serve on state and local juries:
    (1) General officers.
    (2) Commanders.
    (3) Active duty soldiers stationed outside the United States, Puerto 
Rico, Guam, the Northern Mariana Islands, American Samoa, and the Virgin 
Islands.
    (4) Active duty soldiers in a training status.
    (5) Active duty soldiers assigned to forces engaged in operations.
    (c) Other active duty soldiers may be exempted from serving on local 
juries if compliance with such summons would have either of the 
following effects:
    (1) It would unreasonably interfere with performance of the 
soldier's military duties; or,
    (2) It would adversely affect the readiness of a summoned soldier's 
unit, command, or activity.

[[Page 116]]



Sec. 516.76  Exemption determination authority.

    (a) The commander exercising special court-martial convening 
authority (SPCMCA) over a unit has the authority to determine whether a 
soldier of that unit, who has been served with a summons, is exempt from 
serving on a state or local jury unless that authority has been limited 
or withheld in accordance with paragraph (b) or (c) of this section. 
This authority may not be delegated to a subordinate commander who does 
not exercise SPCMCA.
    (b) A commander superior to the SPCMCA, who also exercises SPCMCA or 
general court-martial convening authority (GCMCA) over a unit, may limit 
or withhold the exemption determination authority of subordinate 
commanders.
    (c) A GCMCA, who orders a unit or soldier assigned to one command to 
be attached or detailed to another command for disciplinary purposes 
(for example, ``for administration'' or ``for administration of military 
justice''), may reserve exemption determination authority to the 
commander exercising SPCMCA in the chain of command to which the unit or 
soldier is assigned rather than the chain of command to which the unit 
or soldier is attached or detailed.



Sec. 516.77  Procedures for exemption.

    (a) Active duty soldiers served with a summons to serve on a state 
or local jury will promptly advise their commander and provide copies of 
pertinent documents.
    (b) Unit commanders will evaluate the summons considering both the 
individual soldier's duties and the unit mission. Coordination with the 
servicing judge advocate or legal adviser and with the appropriate state 
or local official may be necessary to determine any impact on the 
soldier's duties or on unit readiness.
    (1) If the soldier is not exempt under Sec. 516.75 (b) or (c), the 
commander will process the soldier for permissive TDY in accordance with 
AR 630-5, Leaves and Passes.
    (2) If the soldier is exempt under Sec. 516.75 (b) or (c), the 
commander will forward the summons and any related documentation, with 
recommendations, through the chain of command to the commander with 
exemption determination authority over the soldier concerned.
    (c) The commander with exemption determination authority over the 
soldier concerned will determine whether the soldier is exempt. His 
determination is final.
    (d) The exemption determination authority will notify responsible 
state or local officials whenever a soldier summoned for jury duty is 
exempt. The notification will cite 10 U.S.C. 982 as authority.



Sec. 516.78  Status, fees, and expenses.

    (a) Soldiers who are required to comply with summons to serve on 
state or local juries will be placed on permissive TDY under the 
provisions of AR 630-5.
    (b) Jury fees accruing to soldiers for complying with the summons to 
serve on state and local juries must be turned over to the appropriate 
finance office for deposit into the U.S. Treasury. Commands will 
establish procedures with local authorities and their servicing finance 
and accounting activity to ensure that such jury fees are so deposited. 
Soldiers, however, may keep any reimbursement from state or local 
authority for expenses incurred in the performance of jury duty, 
including transportation, meals, and parking.

                   Appendix A to Part 516--References

    Publications referenced in this part can be obtained at the National 
Technical Information Services, U.S. Department of Commerce, 5285 Port 
Royal Road, Springfield, VA 22161.

                          Required Publications

AR 25-55, The Department of the Army Freedom of Information Act Program. 
          (Cited in Secs. 516.40, 516.72)
AR 27-10, Military Justice. (Cited in Sec. 516.4)
AR 27-20, Claims. (Cited in Secs. 516.4, 516.33, 516.22)
AR 27-60, Patents, Inventions, and Copyrights.
AR 37-60, Pricing for Material and Services. (Cited in Sec. 516.43.)
AR 37-103, Finance and Accounting for Installations: Disbursing 
          Operations. (Cited in Sec. 516.22.)
AR 60-20, Operating Policies. (Cited in Sec. 516.22.)

[[Page 117]]

AR 190-9, Absentee Deserter Apprehension Program and Surrender of 
          Military Personnel to Civilian Law Enforcement Agencies. 
          (Cited in Sec. 516.9)
AR 210-47, State and Local Taxation of Lessee's Interest in Wherry Act 
          Housing (Title VIII of the National Housing Act).
AR 215-1, Administration of Army Morale, Welfare, and Recreation 
          Activities and Nonappropriated Fund Instrumentalities. (Cited 
          in Sec. 516.22.)
AR 215-2, The Management and Operation of Army Morale, Welfare, and 
          Recreation Activities and Nonappropriated Fund 
          Instrumentalities. (Cited in Sec. 516.22.)
AR 310-1, Publications, Blank Forms, and Printing Management.
AR 340-21, The Army Privacy Program. (Cited in Secs. 516.40, 516.72.)
AR 380-5, Department of the Army Information Security Program.
AR 405-25, Annexation. (Cited in Sec. 516.22.)
AR 630-5, Leaves and Passes. (Cited in Secs. 516.55, 516.77, 516.78.)
AR 630-10, Absence Without Leave, Desertion, and Administration of 
          Personnel Involved in Civilian Court Proceedings. (Cited in 
          Sec. 516.9)

                          Related Publications

    A related publication is merely a source of additional information. 
The user does not have to read it to understand the regulation.
AR 20-1, Inspector General Activities and Procedures. (Cited in 
          Secs. 516.41, 516.72.)
AR 27-1, Judge Advocate Legal Service.
AR 27-3, Legal Assistance. (Cited in Sec. 516.6.)
AR 27-10, Military Justice. (Cited in Secs. 516.4, 516.5, 516.15.)
AR 27-50, Status of Forces Policies, Procedures, and Information. (Cited 
          in Sec. 516.15.)
AR 37-104-3, Military Pay and Allowances Procedures.
AR 37-105, Finance and Accounting for Installations: Civilian Pay 
          Procedures.
AR 55-19, Marine Casualties. (Cited in Sec. 516.22.)
AR 190-29, Misdemeanors and Uniform Violation Notices Referred to U.S. 
          Magistrates or District Courts.
AR 190-40, Serious Incident Report. (Cited in Sec. 516.15.)
AR 210-50, Family Housing Management. (Cited in Sec. 516.37.)
AR 335-15, Management Information Control System. (Cited in 
          Sec. 516.15.)
AR 600-40, Apprehension, Restraint, and Release to Civil Authorities.
AR 600-50, Standards of Conduct for Department of the Army Personnel.
AR 690-700, Personnel Relations and Services. (Cited in Sec. 516.70.)

                             Prescribed Form

DA Form 4, Department of the Army Certification for Authentication of 
          Records. (Prescribed in Sec. 516.25, 516.35.)

                            Referenced Forms

DA Form 2631-R, Medical Care-Third Party Liability Notification.
DA Form 3154, MSA Invoice and Receipt.

                Appendix B to Part 516--Mailing Addresses

    The following is a list of frequently referred to Department of the 
Army Services/Divisions/Offices and their mailing addresses:

COMMANDER (JACS-Z), U.S. ARMY CLAIMS SERVICE, OTJAG, BUILDING 4411, ROOM 
          206, LLEWELLYN AVENUE, FORT GEORGE G. MEADE, MD 20755-5360
    (1) PERSONNEL CLAIMS AND RECOVERY DIVISION (JACS-PC), U.S. ARMY 
CLAIMS SERVICE, OTJAG, BUILDING 4411, ROOM 206, LLEWELLYN AVENUE, FORT 
GEORGE G. MEADE, MD 20755-5360
    (2) TORT CLAIMS DIVISION (JACS-TC), U.S. ARMY CLAIMS SERVICE, OTJAG, 
BUILDING 4411, ROOM 206, LLEWELLYN AVENUE, FORT GEORGE G. MEADE, MD 
20755-5360
CONTRACT APPEALS DIVISION, HQDA(DAJA-CA), 901 NORTH STUART STREET, 
          ARLINGTON, VA 22203-1837
CONTRACT LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200 ARMY PENTAGON, 
          WASHINGTON, DC 20310-2200
CRIMINAL LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200 ARMY PENTAGON, 
          WASHINGTON, DC 20310-2200
ENVIRONMENTAL LAW DIVISION, HQDA(DAJA-EL), 901 NORTH STUART STREET, 
          ARLINGTON, VA 22203-1837
LABOR AND EMPLOYMENT LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200 ARMY 
          PENTAGON, WASHINGTON, DC 20310-2200,
LITIGATION DIVISION, HQDA(DAJA-LT), 901 NORTH STUART STREET, ARLINGTON, 
          VA 22203-1837
    (1) CIVILIAN PERSONNEL BRANCH, HQDA(DAJA-LTC), 901 NORTH STUART 
STREET, ARLINGTON, VA 22203-1837
    (2) GENERAL LITIGATION BRANCH, HQDA(DAJA-LTG), 901 NORTH STUART 
STREET, ARLINGTON, VA 22203-1837
    (3) MILITARY PERSONNEL BRANCH, HQDA(DAJA-LTM), 901 NORTH STUART 
STREET, ARLINGTON, VA 22203-1837
    (4) TORT BRANCH, HQDA(DAJA-LTT), 901 NORTH STUART STREET, ARLINGTON, 
VA 22203-1837
PERSONNEL, PLANS, AND TRAINING OFFICE, THE JUDGE ADVOCATE GENERAL, 2200 
          ARMY PENTAGON, WASHINGTON, DC 20310-2200

[[Page 118]]

PROCUREMENT FRAUD DIVISION, HQDA(DAJA-PF), 901 NORTH STUART STREET, 
          ARLINGTON, VA 22203-1837
INTELLECTUAL PROPERTY DIVISION, HQDA(JALS-IP), 901 NORTH STUART STREET, 
          ARLINGTON, VA 22203-1837
REGULATORY LAW OFFICE, HQDA(JALS-RL), 901 NORTH STUART STREET, 
          ARLINGTON, VA 22203-1837
THE JUDGE ADVOCATE GENERAL, 2200 ARMY PENTAGON, WASHINGTON, DC 20310-
          2200
THE AJAG FOR CIVIL LAW & LITIGATION, THE JUDGE ADVOCATE GENERAL, 2200 
          ARMY PENTAGON, WASHINGTON, DC 20310-2200
U.S. ARMY TRIAL DEFENSE SERVICE, HQDA(JALS-TD), NASSIF BUILDING, FALLS 
          CHURCH, VA 22041-5013

Appendix C to Part 516--Department of Defense Directive 5405.2, Release 
of Official Information in Litigation and Testimony by DoD Personnel as 
                                Witnesses

                     Department of Defense Directive

                  July 23, 1985, Number 5405.2, GC, DOD

Subject: Release of Official Information in Litigation and Testimony by 
          DoD Personnel as Witnesses
References:
(a) Title 5, United States Code, Sections 301, 552, and 552a
(b) Title 10, United States Code, Section 133
(c) DoD Directive 5220.6, ``Industrial Personnel Security Clearance 
          Program,'' December 20, 1976
(d) DoD Directive 5200.1-R, ``Information Security Program Regulation,'' 
          August 1982, authorized by DoD Directive 5200.1, June 7, 1982
(e) DoD Directive 5230.25, ``Withholding of Unclassified Technical Data 
          from Public Disclosure,'' November 6, 1984
(f) DoD Instruction 7230.7, ``User Charges,'' January 29, 1985
(g) DoD Directive 5400.7-R, ``DoD Freedom of Information Act Program,'' 
          December 1980, authorized by DoD Directive 5400.7, March 24, 
          1980

                               A. Purpose

    Under Section 301 reference (a) and reference (b), this Directive 
establishes policy, assigns responsibilities, and prescribes procedures 
for the release of official DoD information in litigation and for 
testimony by DoD personnel as witnesses during litigation.

                       B. Applicability and Scope

    1. This Directive applies to the Office of the Secretary of Defense 
(OSD), the Military Departments, the Organization of the Joint Chiefs of 
Staff (OJCS), the Unified and Specified Commands, and the Defense 
Agencies (hereafter referred to as ``DoD Components''), and to all 
personnel of such DoD Components.
    2. This Directive does not apply to the release of official 
information or testimony by DoD personnel in the following situations:
    a. Before courts-martial convened by the authority of the Military 
Departments or in administrative proceedings conducted by or on behalf 
of a DoD Component;
    b. Pursuant to administrative proceedings conducted by or on behalf 
of the Equal Employment Opportunity Commission (EEOC) or the Merit 
Systems Protection Board (MSPB), or pursuant to a negotiated grievance 
procedure under a collective bargaining agreement to which the 
Government is a party;
    c. In response to requests by Federal Government counsel in 
litigation conducted on behalf of the United States;
    d. As part of the assistance required in accordance with the Defense 
Industrial Personnel Security Clearance Program under DoD Directive 
5220.6 (reference (c)); or
    e. Pursuant to disclosure of information to Federal, State, and 
local prosecuting and law enforcement authorities, in conjunction with 
an investigation conducted by a DoD criminal investigative organization.
    3. This Directive does not supersede or modify existing laws or DoD 
programs governing the testimony of DoD personnel or the release of 
official DoD information during grand jury proceedings, the release of 
official information not involved in litigation, or the release of 
official information pursuant to the Freedom of Information Act, 5 
U.S.C. Section 552 (reference (a)) or the Privacy Act, 5 U.S.C. Section 
552a (reference (a)), nor does this Directive preclude treating any 
written request for agency records that is not in the nature of legal 
process as a request under the Freedom of Information or Privacy Acts.
    4. This Directive is not intended to infringe upon or displace the 
responsibilities committed to the Department of Justice in conducting 
litigation on behalf of the United States in appropriate cases.
    5. This Directive does not preclude official comment on matters in 
litigation in appropriate cases.
    6. This Directive is intended only to provide guidance for the 
internal operation of the Department of Defense and is not intended to, 
does not, and may not be relied upon to create any right or benefit, 
substantive or procedural, enforceable at law against the United States 
or the Department of Defense.

                             C. Definitions

    1. Demand. Subpoena, order, or other demand of a court of competent 
jurisdiction, or

[[Page 119]]

other specific authority for the production, disclosure, or release of 
official DoD information or for the appearance and testimony of DoD 
personnel as witnesses.
    2. DoD Personnel. Present and former U.S. military personnel; 
Service Academy cadets and midshipmen; and present and former civilian 
employees of any Component of the Department of Defense, including 
nonappropriated fund activity employees; non-U.S. nationals who perform 
services overseas, under the provisions of status of forces agreements, 
for the United States Armed Forces; and other specific individuals hired 
through contractual agreements by or on behalf of the Department of 
Defense.
    3. Litigation. All pretrial, trial, and post-trial stages of all 
existing or reasonably anticipated judicial or administrative actions, 
hearings, investigations, or similar proceedings before civilian courts, 
commissions, boards (including the Armed Services Board of Contract 
Appeals), or other tribunals, foreign and domestic. This term includes 
responses to discovery requests, depositions, and other pretrial 
proceedings, as well as responses to formal or informal requests by 
attorneys or others in situations involving litigation.
    4. Official Information. All information of any kind, however 
stored, that is in the custody and control of the Department of Defense, 
relates to information in the custody and control of the Department, or 
was acquired by DoD personnel as part of their official duties or 
because of their official status within the Department while such 
personnel were employed by or on behalf of the Department or on active 
duty with the United States Armed Forces.

                                D. Policy

    It is DoD policy that official information should generally be made 
reasonably available for use in Federal and state courts and by other 
governmental bodies unless the information is classified, privileged, or 
otherwise protected from public disclosure.

                           E. Responsibilities

    1. The General Counsel, Department of Defense (GC, DoD), shall 
provide general policy and procedural guidance by the issuance of 
supplemental instructions or specific orders concerning the release of 
official DoD information in litigation and the testimony of DoD 
personnel as witnesses during litigation.
    2. The Heads of DoD Components shall issue appropriate regulations 
to implement this Directive and to identify official information that is 
involved in litigation.

                              F. Procedures

                           1. Authority to Act

    a. In response to a litigation request or demand for official DoD 
information or the testimony of DoD personnel as witnesses, the General 
Counsels of DoD, Navy, and the Defense Agencies; the Judge Advocates 
General of the Military Departments; and the Chief Legal Advisors to the 
JCS and the Unified and Specified Commands, with regard to their 
respective Components, are authorized--after consulting and coordinating 
with the appropriate Department of Justice litigation attorneys, as 
required--to determine whether official information originated by the 
Component may be released in litigation; whether DoD personnel assigned 
to or affiliated with the Component may be interviewed, contacted, or 
used as witnesses concerning official DoD information or as expert 
witnesses; and what, if any, conditions will be imposed upon such 
release, interview, contact, or testimony. Delegation of this authority, 
to include the authority to invoke appropriate claims of privilege 
before any tribunal, is permitted.
    b. In the event that a DoD Component receives a litigation request 
or demand for official information originated by another Component, the 
receiving Component shall forward the appropriate portions of the 
request or demand to the originating Component for action in accordance 
with this Directive. The receiving Component shall also notify the 
requestor, court, or other authority of its transfer of the request or 
demand.
    c. Notwithstanding the provisions of paragraphs F.1.a. and b., the 
GC, DoD, in litigation involving terrorism, espionage, nuclear weapons, 
intelligence means or sources, or otherwise as deemed necessary, may 
notify Components that GC, DoD, will assume primary responsibility for 
coordinating all litigation requests and demands for official DoD 
information or the testimony of DoD personnel, or both; consulting with 
the Department of Justice, as required; and taking final action on such 
requests and demands.

                         2. Factors to Consider

    In deciding whether to authorize the release of official DoD 
information or the testimony of DoD personnel concerning official 
information (hereinafter referred to as ``the disclosure'') pursuant to 
paragraph F.1., DoD officials should consider the following types of 
factors:
    a. Whether the request or demand is unduly burdensome or otherwise 
inappropriate under the applicable court rules;
    b. Whether the disclosure, including release in camera, is 
appropriate under the rules of procedure governing the case or matter in 
which the request or demand arose;

[[Page 120]]

    c. Whether the disclosure would violate a statute, executive order, 
regulation, or directive;
    d. Whether the disclosure, including release in camera, is 
appropriate or necessary under the relevant substantive law concerning 
privilege;
    e. Whether the disclosure, except when in camera and necessary to 
assert a claim of privilege, would reveal information properly 
classified pursuant to the DoD Information Security Program under DoD 
5200.1-R (reference (d)), unclassified technical data withheld from 
public release pursuant to DoD Directive 5230.25 (reference (e)), or 
other matters exempt from unrestricted disclosure; and
    f. Whether disclosure would interfere with ongoing enforcement 
proceedings, compromise constitutional rights, reveal the identity of an 
intelligence source or confidential informant, disclose trade secrets or 
similarly confidential commercial or financial information, or otherwise 
be inappropriate under the circumstances.

             3. Decisions on Litigation Requests and Demands

    a. Subject to paragraph F.3.e., DoD personnel shall not, in response 
to a litigation request or demand, produce, disclose, release, comment 
upon, or testify concerning any official DoD information without the 
prior written approval of the appropriate DoD official designated in 
paragraph F.1. Oral approval may be granted, but a record of such 
approval shall be made and retained in accordance with the applicable 
implementing regulations.
    b. If official DoD information is sought, through testimony or 
otherwise, by a litigation request or demand, the individual seeking 
such release or testimony must set forth, in writing and with as much 
specificity as possible, the nature and relevance of the official 
information sought. Subject to paragraph F.3.e., DoD personnel may only 
produce, disclose, release, comment upon, or testify concerning those 
matters that were specified in writing and properly approved by the 
appropriate DoD official designated in paragraph F.1. See United States 
ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    c. Whenever a litigation request or demand is made upon DoD 
personnel for official DoD information or for testimony concerning such 
information, the personnel upon whom the request or demand was made 
shall immediately notify the DoD official designated in paragraph F.1. 
for the Component to which the individual contacted is or, for former 
personnel, was last assigned. In appropriate cases, the responsible DoD 
official shall thereupon notify the Department of Justice of the request 
or demands. After due consultation and coordination with the Department 
of Justice, as required, the DoD official shall determine whether the 
individual is required to comply with the request or demand and shall 
notify the requestor or the court or other authority of the 
determination reached.
    d. If, after DoD personnel have received a litigation request or 
demand and have in turn notified the appropriate DoD official in 
accordance with paragraph F.3.c., a response to the request or demand is 
required before instructions from the responsible official are received, 
the responsible official designated in paragraph F.1. shall furnish the 
requestor or the court or other authority with a copy of this Directive 
and applicable implementing regulations, inform the requestor or the 
court or other authority that the request or demand is being reviewed, 
and seek a stay of the request or demand pending a final determination 
by the Component concerned.
    e. If a court of competent jurisdiction or other appropriate 
authority declines to stay the effect of the request or demand in 
response to action taken pursuant to paragraph F.3.d., or if such court 
or other authority orders that the request or demand must be complied 
with notwithstanding the final decision of the appropriate DoD official, 
the DoD personnel upon whom the request or demand was made shall notify 
the responsible DoD official of such ruling or order. If the DoD 
official determines that no further legal review of or challenge to the 
court's ruling or order will be sought, the affected DoD personnel shall 
comply with the request, demand, or order. If directed by the 
appropriate DoD official, however, the affected DoD personnel shall 
respectfully decline to comply with the demand. See United States ex 
rel. Touhy v. Ragen, 340 U.S. 462 (1951).

                                 4. Fees

    Consistent with the guidelines in DoD Instruction 7230.7 (reference 
(f)), the appropriate officials designated in paragraph F.1. are 
authorized to charge reasonable fees, as established by regulation and 
to the extent not prohibited by law, to parties seeking, by request or 
demand, official DoD information not otherwise available under the DoD 
Freedom of Information Act Program (reference (g)). Such fees, in 
amounts calculated to reimburse the Government for the expense of 
providing such information, may include the costs of time expended by 
DoD employees to process and respond to the request or demand; attorney 
time for reviewing the request or demand and any information located in 
response thereto and for related legal work in connection with the 
request or demand; and expenses generated by materials and equipment 
used to search for, produce, and copy the responsive information. See 
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978).

[[Page 121]]

                     5. Expert or Opinion Testimony

    DoD personnel shall not provide, with or without compensation, 
opinion or expert testimony concerning official DoD information, 
subjects, or activities, except on behalf of the United States or a 
party represented by the Department of Justice. Upon a showing by the 
requestor of exceptional need or unique circumstances and that the 
anticipated testimony will not be adverse to the interests of the 
Department of Defense or the United States, the appropriate DoD official 
designated in paragraph F.1. may, in writing, grant special 
authorization for DoD personnel to appear and testify at no expense to 
the United States. If, despite the final determination of the 
responsible DoD official, a court of competent jurisdiction, or other 
appropriate authority, orders the appearance and expert or opinion 
testimony of DoD personnel, the personnel shall notify the responsible 
DoD official of such order. If the DoD official determines that no 
further legal review of or challenge to the court's order will be 
sought, the affected DoD personnel shall comply with the order. If 
directed by the appropriate DoD official, however, the affected DoD 
personnel shall respectfully decline to comply with the demand. See 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).

                  G. Effective Date and Implementation

    This Directive is effective immediately. Forward two copies of 
implementing documents to the General Counsel, DoD, within 120 days.

Signed by William H. Taft, IV
    Deputy Secretary of Defense.

    Appendix D to Part 516--Department of Defense Directive 7050.5, 
Coordination of Remedies for Fraud and Corruption Related to Procurement 
                               Activities

                     Department of Defense Directive

                  June 7, 1989, Number 7050.5, IG, DOD

Subject: Coordination of Remedies for Fraud and Corruption Related to 
          Procurement Activities
References:
(a) DoD Directive 7050.5, subject as above, June 28, 1985 (hereby 
          canceled)
(b) Public Law 97-291, ``The Victim and Witness Protection Act of 
          1982,'' October 12, 1982
(c) Defense FAR Supplement (DFARS), Subpart 4.6, ``Contract Reporting''
(d) DoD Instruction 4105.61, ``DoD Procurement Coding Manual,'' May 4, 
          1973
(e) DoD 4105.61-M, ``Procurement Coding Manual'' (Volume I), October 
          1988, authorized by DoD Instruction 4105.61 May 4, 1973

                        A. Reissuance and Purpose

    This Directive reissues reference (a) to update policies, 
procedures, and responsibilities for the coordination of criminal, 
civil, administrative, and contractual remedies stemming from 
investigation of fraud or corruption related to procurement activities. 
More effective and timely communication of information developed during 
such investigations will enable the Department of Defense to take the 
most appropriate of the available measures.

                            B. Applicability

    This Directive applies to the Office of the Secretary of Defense 
(OSD); the Inspector General, Department of Defense (IG, DoD); the 
Military Departments; the Defense Agencies; and the DoD Field Activities 
(hereafter referred to collectively as ``DoD Components'').

                             C. Definitions

    1. DoD Criminal Investigative Organizations. Refers to the U.S. Army 
Criminal Investigation Command; the Naval Investigative Service Command; 
the U.S. Air Force Office of Special Investigations; and the Defense 
Criminal Investigative Service, Office of the IG, DoD (OIG, DoD).
    2. Significant. Refers to all fraud cases involving an alleged loss 
of $100,000, or more; all corruption cases related to procurement that 
involved bribery, gratuities, or conflicts of interest; and any 
investigation into defective products or product substitution in which a 
SERIOUS HAZARD to health, safety, or operational readiness is indicated, 
regardless of loss value.

                                D. Policy

    It is DoD policy that:
    1. Each of the DoD Components shall monitor, from its inception, all 
significant investigations of fraud or corruption related to procurement 
activities affecting its organizations, for the purpose of ensuring that 
all possible criminal, civil, administrative, and contractual remedies 
in such cases are identified to cognizant procurement and command 
officials and that appropriate remedies are pursued expeditiously. This 
process shall include appropriate coordination with all other affected 
DoD Components.
    2. All investigations of fraud or corruption related to procurement 
activities shall be reviewed to determine and implement the appropriate 
contractual and administrative actions that are necessary to recover 
funds lost through fraud or corruption and to ensure the integrity of 
DoD programs and operations.
    3. Appropriate civil, contractual, and administrative actions, 
including those set forth in enclosure 1, shall be taken expeditiously. 
During an investigation and before

[[Page 122]]

prosecution or litigation, and when based in whole or in part on 
evidence developed during an investigation, such actions shall be taken 
with the advance knowledge of the responsible DoD criminal investigative 
organization and, when necessary, the appropriate legal counsel in the 
Department of Defense and the Department of Justice (DoJ). When 
appropriate, such actions shall be taken before final resolution of the 
criminal or civil case.

                           E. Responsibilities

    1. The Heads of DoD Components shall:
    a. Establish a centralized organization (hereafter referred to as 
``the centralized organization'') to monitor and ensure the coordination 
of criminal, civil, administrative, and contractual remedies for each 
significant investigation of fraud or corruption related to procurement 
activities affecting the DoD Component.
    b. Establish procedures requiring the centralized organization to 
discuss regularly with the assigned DoD criminal investigative 
organization(s) such issues as the current status of significant 
investigations and their coordination with prosecutive authorities.
    c. Establish procedures requiring that all coordination involving 
the DoJ, during the pendency of a criminal investigation, is 
accomplished by or with the advance knowledge of the appropriate DoD 
criminal investigative organization(s).
    d. Establish procedures to ensure appropriate coordination of 
actions between the centralized organizations of any DoD Components 
affected by a significant investigation of fraud or corruption related 
to procurement activities.
    e. Establish procedures to ensure that all proper and effective 
civil, administrative, and contractual remedies available to the 
Department of Defense are, when found applicable and appropriate, 
considered and undertaken promptly by the necessary DoD officials (e.g., 
commanders, programs officials, and contracting officers). This includes 
initiation of any suspension and debarment action within 30 days of an 
indictment or conviction. The centralized organization shall ensure that 
all proposed actions are coordinated with appropriate investigative 
organization.
    f. Establish procedures to ensure that a specific comprehensive 
remedies plan is developed for each significant investigation involving 
fraud or corruption related to procurement activities. These procedures 
shall include the participation of the appropriate DoD criminal 
investigative organization in the development of the plan.
    g. Establish procedures to ensure that in those significant 
investigations of fraud or corruption related to procurement activities 
when adverse impact on a DoD mission can be determined, such adverse 
impact is identified and documented by the centralized organization. 
This information is to be used by the centralized organization of the 
DoD Component concerned in development of the remedies plan required in 
paragraph E.1.f., above, and shall be furnished to prosecutors as stated 
in paragraph E.2.e., below. The information shall also be used by the 
centralized organizations in development and preparation of ``Victim 
Impact Statements'' for use in sentencing proceedings, as provided for 
P.L. 97-291 (reference (b)). Some examples of adverse impact on a DoD 
mission are as follows:
    (1) Endangerment of personnel or property.
    (2) Monetary loss.
    (3) Denigration of program or personnel integrity.
    (4) Compromise of the procurement process.
    (5) Reduction or loss of mission readiness.
    h. Ensure training materials are developed on fraud and corruption 
in the procurement process, and that all procurement and procurement-
related training includes a period of such instruction appropriate to 
the duration and nature of the training.
    i. Establish procedures enabling the centralized organization to 
ensure that safety and readiness issues are examined and appropriately 
dealt with for all cases in which a notice is required under paragraph 
E.2.i., below. The minimum procedures to be followed by the centralized 
organization are in enclosure 3.
    j. Ensure that appropriate command, procurement, and investigative 
organizations are provided sufficient information to determine if 
further inquiry is warranted on their part to prevent reoccurrence and 
detect other possible fraud within their activity.
    2. The Secretaries of the Military Departments and the Inspector 
General, Department of Defense (IG, DoD), or their designees, shall 
establish procedures that ensure that their respective criminal 
investigative organizations will:
    a. Notify, in writing, the centralized organization for the affected 
DoD Component of the start of all significant investigations involving 
fraud or corruption that are related to procurement activities. Initial 
notification shall include the following elements:
    (1) Case title.
    (2) Case control number.
    (3) Investigative agency and office of primary responsibility.
    (4) Date opened.
    (5) Predication.
    (6) Suspected offense(s).
    b. Notify expeditiously the Defense Investigative Service (DIS) of 
any investigations that develop evidence that would impact on DoD-
cleared industrial facilities or personnel.

[[Page 123]]

    c. Discuss regularly with the centralized organization such issues 
as the current status of significant investigations and their 
coordination with prosecutive authorities. If the DoD criminal 
investigative organization has prepared any documents summarizing the 
current status of the investigation, such documents shall be provided to 
the centralized organization. Completed reports of significant 
investigations also should be provided to the centralized organization.
    d. Provide to the appropriate procurement officials, commanders, and 
suspension and debarment authorities, when needed to allow consideration 
of applicable remedies, any court records, documents, or other evidence 
of fraud or corruption related to procurement activities. Such 
information shall be provided in a timely manner to enable the 
suspension and debarment authority to initiate suspension and debarment 
action within 30 days of an indictment or conviction.
    e. Provide expeditiously to prosecutive authorities the information 
regarding any adverse impact on a DoD mission, that is gathered under 
paragraph E.1.g., above, for the purpose of enhancing the 
prosecutability of a case. Such information also should be used in 
preparing a victim impact statement for use in sentencing proceedings as 
provided for in Public Law 97-291.
    f. Gather, at the earliest practical point in the investigation, 
without reliance on grand jury subpoenas whenever possible, relevant 
information concerning responsible individuals, the organizational 
structure, finances, and contract history of DoD contractors under 
investigation for fraud or corruption related to procurement activities, 
to facilitate the criminal investigation as well as any civil, 
administrative, or contractual actions or remedies that may be taken. 
Some available sources of such information are listed in enclosure 2.
    g. Provide timely notice to other cognizant DoD criminal 
investigative organizations of evidence of fraud by a contractor, 
subcontractor, or employees of either, on current or past contracts 
with, or affecting, other DoD Components.
    h. Ascertain the impact upon any ongoing investigation or 
prosecution of civil, contractual, and administrative actions being 
considered and advise the appropriate centralized organization of any 
adverse impact.
    i. Obtain a DD 350 report in every investigation into defective 
products or product substitution in which a SERIOUS HAZARD to health, 
safety, or operational readiness is indicated. Timely notification shall 
be made to the centralized organization of each DoD Component that is 
identified as having contract actions with the subject of the 
investigation.
    j. Obtain a DD 350 report in all significant fraud investigations, 
as defined in subsection C.2. above, whether or not the case involved 
defective products or product substitution. Timely notification shall be 
made to the centralized organization of each DoD Component that is 
identified as having contract actions with the subject of the 
investigation.
    3. The Inspector General, Department of Defense (IG, DoD), shall:
    a. Develop training materials relating to fraud and corruption in 
procurement related activities which shall be utilized in all 
procurement related training in conjunction with training materials 
developed by the DoD Components. (See paragraph E.1.h., above.)
    b. Establish procedures for providing to the DoD criminal 
investigative organizations, through the Office of the Assistant 
Inspector General for Auditing (OAIG-AUD), reports of data contained in 
the Individual Procurement Action Report (DD Form 350) System.

                              F. Procedures

    Transmissions of information by DoD criminal investigative 
organizations required by subsection E.2., above, shall be made as 
expeditiously as possible, consistent with efforts not to compromise any 
ongoing criminal investigation. The transmission of the information may 
be delayed when, in the judgment of the head of the DoD criminal 
investigative organization, failure to delay would compromise the 
success of any investigation or prosecution. The prosecutive authorities 
dealing with the investigation shall be consulted, when appropriate, in 
making such determinations.

                  G. Effective Date and Implementation

    This Directive is effective immediately. Forward two copies of 
implementing documents to the Inspector General, Department of Defense, 
within 120 days.

Donald J. Atwood,
    Deputy Secretary of Defense.

                              Enclosures--3

    1. Civil Contractual and Administrative Actions That Can Be Taken in 
Response to Evidence of Procurement Fraud
    2. Sources of Information Relating to Government Contractors
    3. Actions to be Taken in Product Substitution Investigations

  Civil, Contractual, and Administrative Actions That Can Be Taken in 
                Response to Evidence of Procurement Fraud

                                A. Civil

                              1. Statutory

    a. False Claims Act (31 USC 3729 et seq.).
    b. Anti-Kickback Act (41 USC 51 et seq.).
    c. Voiding Contracts (18 USC 218).
    d. Truth in Negotiations Act (10 USC 2306(f)).

[[Page 124]]

    e. Fraudulent Claims-Contract Disputes Act (41 USC 604)

                             2. Nonstatutory

    a. Breach of contract.
    b. Breach of warranty.
    c. Money paid under mistake of fact.
    d. Unjust enrichment.
    e. Fraud and/or Deceit.
    f. Conversion.
    g. Recision and/or Cancellation.
    h. Reformation.
    i. Enforcement of performance bond/guarantee agreement.

                             3. Contractual

    a. Termination of contract for default.
    b. Termination of contract for convenience of Government.
    c. Termination for default and exemplary damages under the 
gratuities clause.
    d. Recision of contract.
    e. Contract warranties.
    f. Withholding of payments to contractor.
    g. Offset of payments due to contractor from other contracts.
    h. Price reduction.
    i. Correction of defects (or cost of correction).
    j. Refusal to accept nonconforming goods.
    k. Revocation of acceptance.
    l. Denial of claims submitted by contractors.
    m. Disallowance of contract costs.
    n. Removal of the contractor from automated solicitation or payment 
system.

                            4. Administrative

    a. Change in contracting forms and procedures.
    b. Removal or reassignment of Government personnel.
    c. Review of contract administration and payment controls.
    d. Revocation of warrant contracting officer.
    e. Suspension of contractor and contractor employees.
    f. Debarment of contractor and contractor employees.
    g. Revocation of facility security clearances.
    h. Nonaward of contract based upon a finding of contractor 
nonresponsibility.
    i. Voluntary refunds.

        Sources of Information Relating to Government Contractors
------------------------------------------------------------------------
          Type of information                    Possible source
------------------------------------------------------------------------
Location, dollar value, type, and        a. DD Form 350 Report.\1\
 number of current contracts with the    b. Defense Logistics Agency's
 Department of Defense.                   (DLA) ``Contract
                                          Administration Defense
                                          Logistics Agency's (DLA)
                                          Contract Administration Report
                                          (CAR Report) on contracts DLA
                                          administers.
2. Financial status of corporation,      a. Dunn and Bradstreet Reports.
 history of corporation, owners, and     b. Corporate filings with local
 officers.                                secretaries of the State, or
                                          corporate recorders.
                                         c. Securities and Exchange
                                          Commission (public
                                          corporations).
                                         d. Small Business
                                          Administration (SBA) (small
                                          businesses).
                                         e. General Accounting Office
                                          (bid protests, and contractors
                                          indebted to the Government).
                                         f. Armed Services Board of
                                          Contract Appeals (ASBCA) or
                                          court litigation.
                                         g. List of Contractors Indebted
                                          to the United States
                                          (maintained, published and
                                          distributed by the U.S. Army
                                          Finance and Accounting Center,
                                          Indianapolis, Indiana 46249).
3. Security clearance background         a. Defense Investigative
 information on facility and officers.    Service.
4. Performance history of contractor...  a. Local contracting officers.
                                         b. Defense Contract
                                          Administration Service
                                          preaward surveys.
                                         c. SBA Certificate of
                                          Competency records.
5. Name, location, offense alleged, and  DLA Automated Criminal Case
 previous investigative efforts           Management System. (Available
 involving DLA-awarded or DLA-            through field offices of the
 administered contracts.                  DLA Counsel's office.)
6. Bid protests, litigation, and         Field offices of the DLA
 bankruptcy involving DLA-awarded or      Counsel's office.
 DLA-administered contracts.
------------------------------------------------------------------------
\1\ A determination as to the contract history of any DoD contractor
  with contracts in excess of $25,000 annually can be made through a
  review of the ``Individual Procurement Action Report'' (DD Form 350)
  system, as prescribed by Subpart 4.6 of the DoD FAR Supplement, DoD
  Instruction 4105.61, and DoD 4105.61-M (references (c), (d), and (e)).

       Actions to be Taken in Product Substitution Investigations

    A. The centralized organization, in all cases involving allegations 
of product substitution in which a SERIOUS HAZARD to health, safety, or 
operational readiness is indicated shall:
    1. Review the notice of the case immediately after receiving it from 
the Defense criminal investigative organization. Review the notice to 
determine any potential safety

[[Page 125]]

or readiness issues indicated by the suspected fraud.
    2. Notify all appropriate safety, procurement, and program officials 
of the existence of the case.
    3. Obtain a complete assessment from safety, procurement, and 
program officials of the adverse impact of the fraud on DoD programs and 
operations.
    4. Ensure that the DoD Component provides the Defense criminal 
investigative organization with full testing support to completely 
identify the defective nature of the substituted products. Costs 
associated with the testing shall be assumed by the appropriate 
procurement program.
    5. Prepare a comprehensive impact statement describing the adverse 
impact of the fraud on DoD programs for use in any criminal, civil, or 
contractual action related to the case.
    B. In all cases involving allegations of product substitution that 
affect more than one DoD Component, that centralized organizations of 
the affected DoD Components shall identify a lead Agency. The lead 
centralized organization shall ensure that information on the fraud is 
provided to the centralized organization of all other affected DoD 
Components. The lead centralized organization shall ensure compliance 
with the requirements of section A., above. The lead centralized 
organization shall then be responsible for preparing a comprehensive 
``Victim Impact Statement'' as required by paragraph E.1.g. of this 
Directive.
    C. In all cases involving allegations of product substitution, the 
Defense Criminal Investigative Organization shall:
    1. Immediately notify the appropriate centralized organization of 
the beginning of the case.
    2. Continue to provide to the centralized organization any 
information developed during the course of the investigation that 
indicates substituted products have been, or might be, provided to the 
Department of Defense.
    3. Ensure that any request for testing of substituted products is 
provided to the centralized organization.

    Appendix E to Part 516--Department of Defense Directive 5505.5, 
         Implementation of the Program Fraud Civil Remedies Act

    DOD Directive 5505.5 is contained in 32 CFR part 277.

                    Appendix F to Part 516--Glossary

                              Abbreviations

AAFES: Army and Air Force Exchange Service
AMEDD: Army Medical Department
AFARS: Army Federal Acquisition Regulation Supplement
ASBCA: Armed Services Board of Contract Appeals
AUSA: Assistant United States Attorney
CFR: Code of Federal Regulations
COE: United States Army Corps of Engineers
DA: Department of the Army
DFARS: Defense Federal Acquisition Regulation Supplement
DOD: Department of Defense
DOJ: Department of Justice. In this regulation, reference to DOJ means 
          either United States Attorneys' Offices or The (main) 
          Department of Justice in Washington, DC
DCIS: Defense Criminal Investigative Service
e.g.: An abbreviation for exempli gratia, meaning ``for example''
et seq.: An abbreviation for et sequentes, meaning ``and the following''
FAR: Federal Acquisition Regulation
FAX: Facsimile Transmission
FBI: Federal Bureau of Investigation
Fed. R. Civ. P.: Federal Rules of Civil Procedure
Fed. R. Crim. P.: Federal Rules of Criminal Procedure
FOIA: Freedom of Information Act
GAO: General Accounting Office
HQDA: Headquarters, Department of the Army
i.e.: An abbreviation for id est, meaning ``that is''
IG: Inspector General
JA: Judge Advocate
MACOM: Major Command
MSPB: Merit Systems Protection Board
NAF: Nonappropriated Fund
OTJAG: Office of The Judge Advocate General
OSC: Office of Special Counsel
PFA: Procurement Fraud Advisor
PFCRA: Program Fraud Civil Remedies Act
PFD: Procurement Fraud Division
PFI: Procurement Fraud or Irregularities
RJA: Recovery Judge Advocate
SAUSA: Special Assistant U.S. Attorney
SJA: Staff Judge Advocate
TDY: temporary Duty
TJAG: The Judge Advocate General
UCMJ: Uniform Code of Military Justice
USACIDC: U.S. Army Criminal Investigation Command
USALSA: U.S. Army Legal Services Agency
USARCS: U.S. Army Claims Service
USATDS: U.S. Army Trial Defense Service
USMA: United States Military Academy
U.S.C.: United States Code

                                  Terms

                               Active Duty

    Full-time duty in the active military service of the United States. 
Includes: full-time training duty; annual training duty; active

[[Page 126]]

duty for training; attendance, while in the active military service, at 
a school designated as a Service School by law or by the Secretary of 
the military department concerned; and, attendance, while in the active 
military service, at advanced civil schooling and training with 
industry. It does not include full-time National Guard duty under Title 
32, United States Code.

                             Army Activities

    Activities of or under the control of the Army, one of its 
instrumentalities, or the Army National Guard, including activities for 
which the Army has been designated the administrative agency, and those 
designated activities located in an area in which the Army has been 
assigned single service claims responsibility by DOD directive.

                              Army Property

    Real or personal property of the United States or its 
instrumentalities and, if the United States is responsible therefore, 
real or personal property of a foreign government which is in the 
possession or control of the Army, one of its instrumentalities, or the 
Army National Guard, including property of an activity for which the 
Army has been designated the administrative agency, and property located 
in an area in which the Army has been assigned single service claims 
responsibility.

                        Centralized Organization

    That organization of a DOD component responsible for coordinating 
and monitoring of criminal, civil, contractual, and administrative 
remedies relating to contract fraud. For DOD components other than the 
Army, the Centralized organizations are as follows: the Office of 
General Counsel, Department of the Air Force; the Office of the 
Inspector General, Department of the Navy; and the Office of General 
Counsel, Defense Logistics Agency.

                                  Claim

    The Government's right to recover money or property from any 
individual, partnership, association, corporation, governmental body, or 
other legal entity (foreign and domestic) except an instrumentality of 
the United States. A claim against several joint debtors or tortfeasors 
arising from a single transaction or incident will be considered one 
claim.

                             Claims Officer

    A commissioned officer, warrant officer, or qualified civilian 
employee designated by the responsible commander and trained or 
experienced in the conduct of investigations and the processing of 
claims.

                               Corruption

    Practices that include, but are not limited to, solicitation, offer, 
payment, or acceptance of bribes or gratuities; kickbacks; conflicts of 
interest; or unauthorized disclosure of official information related to 
procurement matters.

                        Counsel for Consultation

    An attorney, provided by DA at no expense to the military member or 
civilian employee, who will provide legal advice to the witness 
concerning the authority of OSC, the nature of an OSC interview and 
their individual rights and obligations. The counsel may accompany the 
witness to the interview and advise the witness during the interview. No 
attorney-client relationship is established in this procedure.

                       Counsel for Representation

    An attorney, provided by DA at no expense to the military member or 
civilian employee, who will act as the individual's lawyer in all 
contacts with the MSPB and the OSC during the pendancy of the OSC 
investigation and any subsequent OSC initiated action before the MSPB. 
An attorney-client relationship will be established between the 
individual and counsel for representation.

                              DA Personnel

    DA personnel includes the following:
    a. Military and civilian personnel of the Active Army and The U.S. 
Army Reserve.
    b. Soldiers of the Army National Guard of the United States (Title 
10, U.S.C.) and, when specified by statute or where a Federal interest 
is involved, soldiers in the Army National Guard (Title 32, U.S.C.). It 
also includes technicians under 32 U.S.C. 709(a)(d).
    c. USMA cadets.
    d. Nonappropriated fund employees.
    e. Foreign nationals who perform services for DA overseas.
    f. Other individuals hired by or for the Army.

                                Debarment

    Administrative action taken by a debarring authority to exclude a 
contractor from Government contracting and Government-approved 
subcontracting for a specified period.

                      Deciding Official (Chapter 7)

    SJA, legal adviser, or Litigation Division attorney who makes the 
final determination concerning release of official information.

                DOD Criminal Investigation Organizations

    Refers to the USACIDC; the Naval Investigative Service; the U.S. Air 
Force Office of Special Investigations; and the Defense

[[Page 127]]

Criminal Investigative Service, Office of the Inspector General, DOD.

                                  Fraud

    Any intentional deception of DOD (including attempts and 
conspiracies to effect such deception) for the purpose of inducing DOD 
action or reliance on that deception. Such practices include, but are 
not limited to, the following: bid-rigging; making or submitting false 
statements; submission of false claims; use of false weights or 
measures; submission of false testing certificates; adulterating or 
substituting materials; or conspiring to use any of these devices.

                       Improper or Illegal Conduct

    a. A violation of any law, rule, or regulation in connection with 
Government misconduct; or
    b. Mismanagement, a gross waste of funds, an abuse of authority, or 
a substantial and specific danger to public health or safety.

              Information Exempt From Release To The Public

    Those categories of information which may be withheld from the 
public under one or more provisions of law.

                             Judge Advocate

    An officer so designated (AR 27-1).

                              Legal Adviser

    A civilian attorney who is the principal legal adviser to the 
commander or operating head of any Army command or agency.

                               Litigation

    Legal action or process involving civil proceedings, i.e., 
noncriminal.

          Litigation in Which The United States Has an Interest

    a. A suit in which the United States or one of its agencies or 
instrumentalities has been, or probably will be, named as a party.
    b. A suit against DA personnel and arises out of the individual's 
performance of official duties.
    c. A suit concerning an Army contract, subcontract, or purchase 
order under the terms of which the United States may be required to 
reimburse the contractor for recoveries, fees, or costs of the 
litigation.
    d. A suit involving administrative proceedings before Federal, 
state, municipal, or foreign tribunals or regulatory bodies that may 
have a financial impact upon the Army.
    e. A suit affecting Army operations or which might require, limit, 
or interfere with official action.
    f. A suit in which the United States has a financial interest in the 
plaintiff's recovery.
    g. Foreign litigation in which the United States is bound by treaty 
or agreement to ensure attendance by military personnel or civilian 
employees.

                              Medical Care

    Includes hospitalization, outpatient treatment, dental care, nursing 
service, drugs, and other adjuncts such as prostheses and medical 
appliances furnished by or at the expense of the United States.

                               Misdemeanor

    An offense for which the maximum penalty does not exceed 
imprisonment for 1 year. Misdemeanors include those offenses categorized 
as petty offenses (18 USC Sec. 3559).

                          Official Information

    All information of any kind, however stored, that is in the custody 
and control of the Department of Defense, relates to information in the 
custody and control of the Department, or was acquired by DoD personnel 
as part of their official duties or because of their official status 
within the Department while such personnel were employed by or on behalf 
of the Department or on active duty with the United States Armed Forces.

                            Operating Forces

    Those forces whose primary missions are to participate in combat and 
the integral supporting elements thereof. Within DA, the operating 
forces consist of tactical units organized to conform to tables of 
organization and equipment (TOE).

                            Personnel Action

    These include--
    a. Appointment.
    b. Promotion.
    c. Adverse action under 5 U.S.C. 7501 et seq. or other disciplinary 
or corrective action.
    d. Detail, transfer, or reassignment.
    e. Reinstatement.
    f. Restoration.
    g. Reemployment.
    h. Performance evaluation under 5 U.S.C. 4301 et seq.
    i. Decision concerning pay, benefits, or awards, or concerning 
education or training if the education or training may reasonably be 
expected to lead to an appointment, promotion, performance evaluation, 
or other personnel action.
    j. Any other significant change in duties or responsibilities that 
is inconsistent with the employee's salary or grade level.

                           Private Litigation

    Litigation other than that in which the United States has an 
interest.

[[Page 128]]

                                 Process

    The legal document that compels a defendant in an action to appear 
in court; e.g., in a civil case a summons or subpoena, or in a criminal 
case, a warrant for arrest, subpoena or summons.

                      Prohibited Personnel Practice

    Action taken, or the failure to take action, by a person who has 
authority to take, direct others to take, recommend, or approve any 
personnel action--
    a. That discriminates for or against any employee or applicant for 
employment on the basis of race, color, religion, sex, national origin, 
age, handicapping condition, marital status, or political affiliation, 
as prohibited by certain specified laws.
    b. To solicit or consider any recommendation or statement, oral or 
written, with respect to any individual who requests, or is under 
consideration for, any personnel action, unless the recommendation or 
statement is based on the personal knowledge or records of the person 
furnishing it, and consists of an evaluation of the work performance, 
ability, aptitude, or general qualifications of the individual, or an 
evaluation of the character, loyalty, or suitability of such individual.
    c. To coerce the political activity of any person (including the 
providing of any political contribution or service), or take any action 
against any employee or applicant for employment as a reprisal for the 
refusal of any person to engage in such political activity.
    d. To deceive or willfully obstruct any person with respect to such 
person's right to compete for employment.
    e. To influence any person to withdraw from competition for any 
position for the purpose of improving or injuring the prospects of any 
other person for employment.
    f. To grant any preference or advantage not authorized by law, rule, 
or regulation to any employee or applicant for employment (including 
defining the scope or manner of competition or the requirements for any 
position) for the purpose of improving or injuring the prospects of any 
particular person for employment.
    g. To appoint, employ, promote, advance, or advocate for 
appointment, employment, promotion, or advancement, in or to a civilian 
position any individual who is a relative (as defined in 5 U.S.C. 3110) 
of the employee, if the position is in the agency in which the employee 
is serving as a public official or over which the employee exercises 
jurisdiction or control as an official.
    h. To take or fail to take a personnel action with respect to any 
employee or applicant for employment as a reprisal for being a 
whistleblower, as defined below.
    i. To take or fail to take a personnel action against an employee or 
applicant for employment as a reprisal for the exercise of any appeal 
right granted by law, rule, or regulation.
    j. To discriminate for or against any employee or applicant for 
employment on the basis of conduct that does not adversely affect the 
performance of the employee or applicant or the performance of others.
    k. To take or fail to take any other personnel action if the taking 
of, or failure to take, such action violates any law, rule, or 
regulation implementing, or directly concerning, the merit system 
principles contained in 5 U.S.C. 2301.

                         Prosecutive Authorities

    These include--
    a. A U.S. Attorney;
    b. A prosecuting attorney of a State or other political subdivision 
when the U.S. Attorney has declined to exercise jurisdiction over a 
particular case or class of cases; and
    c. An SJA of a general court-martial convening authority considering 
taking action against a person subject to the UCMJ.

                               Recovery JA

    A JA or legal adviser responsible for assertion and collection of 
claims in favor of the United States for property claims and medical 
expenses.

                Significant Case of Fraud and Corruption

    A procurement fraud case involving an alleged loss of $100,000 or 
more; all corruption cases related to procurement that involve bribery, 
gratuities, or conflicts of interest; any defective products or product 
substitution in which a serious hazard to health, safety or operational 
readiness is indicated, regardless of loss value; and, any procurement 
fraud case that has received or is expected to receive significant media 
coverage.

                          Staff Judge Advocate

    An officer so designated (AR 27-1). The SJA of an installation, a 
command or agency reporting directly to HQDA, or of a major subordinate 
command of the U.S. Army Materiel Command, and the senior Army JA 
assigned to a joint or unified command.

                                Subpoena

    A process to cause a witness to appear and give testimony, e.g., at 
a trial, hearing, or deposition.

                               Suspension

    Administrative action taken by a suspending authority to temporarily 
exclude a contractor from Government contracting and Government-approved 
subcontracting.

[[Page 129]]

                  Suspension and Debarment Authorities

    Officials designated in DFARS, section 9.403, as the authorized 
representative of the Secretary concerned.

                               Tortfeasor

    A wrongdoer; one who commits a tort.

                     Appendix G to Part 516--Figures

    This appendix contains figures cited or quoted throughout the text 
of this part.

     Figure C-1. Sample Answer to Judicial Complaint, With Attached 
                         Certificate of Service

    In the United States District Court for the Southern District of 
Texas Corpus Christi Division, No. C-90-100

John Doe, Plaintiff v. Togo D. West, Jr., Secretary of the Army, 
          Department of the Army, Defendant.

                        First Affirmative Defense

    The Complaint is barred by laches.
    Figure C-3. Sample Answer to Judicial Complaint, with attached 
Certificate of Service. This is intended to be used as a guide in 
preparing a draft Answer as part of a Litigation Report.

                                 Answer

    For its answer to the complaint, defendant admits, denies and 
alleges as follows:
    1. Admits.
    2. Denies.
    3. Denies.
    4. The allegations contained in paragraph 4 are conclusions of law 
to which no response is required; to the extent they may be deemed 
allegations of fact, they are denied.
    5. Denies the allegations contained in the first sentence of 
paragraph 5; admits the allegations contained in the second sentence of 
paragraph 5; denies the remainder of the allegations in paragraph 5.
    6. Denies the allegations in paragraph 6 for lack of knowledge or 
information sufficient to form a belief as to their truth.
    7. Denies each allegation in the complaint not specifically admitted 
or otherwise qualified.

                            Prayer for Relief

    The remainder of plaintiff's Complaint contains his prayer for 
relief, to which no answer is required. Insofar as an answer is 
required, denies that plaintiff is entitled to any relief whatsoever.
    Defendant respectfully prays that the Court dismiss plaintiff's 
Complaint and award to defendant costs and such further relief as the 
Court deems proper.
    Respectfully submitted,
Ronald M. Ford,
United States Attorney.
Roy A. Andersen,
Assistant United States Attorney, 606 N. Carancua, Corpus Christi, Texas 
          78476, (512) 884-3454.
Captain Christopher N. Jones,
Department of the Army, Office of the Judge, Advocate General, 901 N. 
          Stuart St., Suite 400, Arlington, Virginia 22203-1837, (703) 
          696-1666.

                         Certificate of Service

    I hereby certify that a true and correct copy of Defendant's Answer 
has been placed in the mail, postage prepaid, this ____ day of 
__________, 1991, addressed to plaintiff's counsel as follows: Mr. 
Eugene Henderson, 777 Fourth Street, Corpus Christi, TX 78888.
Roy A. Andersen,
Assistant United States Attorney.

                            Sample DA Form 4

Figure C-3. Unsworn Declaration Under Penalty of Perjury Executed Within 
                            the United States

                  Declaration Under Penalty of Perjury

    I am Private Paul Jones, currently assigned to Company B, 4th 
Battalion, 325th Parachute Infantry Regiment, Fort Bragg, North 
Carolina. I have personal knowledge of the following matters.
    On the evening of 3 June 1970, I was present at the company party at 
Lake Popolopen when the accident occurred. I saw a bright, full moon 
that evening.
    I declare under penalty of perjury that the foregoing is true and 
correct. (28 U.S.C. Sec. 1746).
    Executed on: __________
Paul Jones,
Private, U.S. Army.

 Figure D-1. Format for a Request for a Representation Using an Unsworn 
 Declaration Under Penalty of Perjury Executed Within the United States

                       Request for Representation

    I request that the Attorney General of the United States, or his 
agent, designate counsel to defend me in my official and individual 
capacities in the case of John Doe v. Private Paul Jones, now pending in 
the U.S. District Court for the Eastern District of North Carolina. I 
have read the complaint filed in this case and I declare that all my 
actions were performed in my official capacity, within the scope of my 
official duties, and in a good faith belief that my actions conformed to 
the law. I am not aware of any pending related criminal investigation.

[[Page 130]]

    I understand the following: if my request for representation is 
approved, I will be represented by a U.S. Department of Justice 
attorney; that the United States is not required to pay any final 
adverse money judgment rendered against me personally, although I can 
request indemnification; that I am entitled to retain private counsel at 
my own expense; and, that the Army expresses no opinion whether I should 
or should not retain private counsel.
    I declare under penalty of perjury that the foregoing is true and 
correct. (28 U.S.C. Sec. 1746).
    Executed on: __________
Paul Jones,
Private, U.S. Army.

 Figure D-2. Format for Scope of Employment Statement Using an Unsworn 
 Declaration Under Penalty of Perjury Executed Outside the United States

                               Declaration

    I am currently the Commander of HHC, 6th Armored Division, Bad 
Vilbel, Germany. I have read the allegations concerning Private Paul 
Jones in the complaint of John Doe v. Private Paul Jones, now pending in 
the U.S. District Court for the Eastern District of North Carolina.
    At all times relevant to the complaint, I was Private Jones' company 
commander. His actions relevant to this case were performed within the 
scope of his official duties as Assistant Charge of Quarters, Company B, 
4th Battalion, 325th Parachute Infantry Regiment, Fort Bragg, North 
Carolina.
    I declare under penalty of perjury under the laws of the United 
States of America that the foregoing is true and correct. (28 U.S.C. 
Sec. 1746).
    Executed on: __________
John Smith,
Captain, Infantry.

      Figure D-3. Format for Contractor Request for Representantion

                       Request for Representation

    I am the President of the XYZ Corporation. I request the Attorney 
General of the United States designate counsel to defend me and my 
company in Doe v. XYZ, Inc., now pending in the U.S. District Court for 
the Eastern District of North Carolina.
    I understand that the assumption by the Attorney General of the 
defense of this case does not alter or increase the obligations of the 
United States under United States Contract No. WP-70-660415.
    I further agree that such representation will not be construed as 
waiver or estoppel to assert any rights which any interested party may 
have under said contract.
    Executed on: __________
D.D. Tango,
President, XYZ, Inc.

             Figure G-1. Sample ``Touhy'' Compliance Letter

Department of the Army, Office of the Staff Judge Advocate, Fort Smith, 
                    North Dakota 84165, 15 April 1993

Mr. T. Hudson Taylor,
Attorney At Law, 105 Hay Street, Whynot, ND 84167
    Dear Mr. Taylor: We have learned that you subpoenaed Captain Roberta 
Selby to testify at a deposition in the case Kramer v. Kramer, currently 
filed in state court, and that you directed her to bring her legal 
assistance file concerning her client, SSG Kramer.
    Under 32 CFR Secs. 97.6(c), 516.35, and 516.40, the Army must 
authorize the appearance of its personnel or the production of official 
documents in private litigation. In this case, the Army cannot authorize 
Captain Selby to appear or produce the requested file absent the 
following:
    You must request in writing her appearance and the production of the 
file in accordance with Department of Defense directives, 32 CFR 
Sec. 97.6(c), and Army regulations, 32 CFR Secs. 516-34--516.40. The 
request must include the nature of the proceeding, 32 CFR 
Sec. 516.34(b), and the nature and relevance of the official information 
sought. Id. Sec. 516.35(d). We cannot act on your request until we 
receive the required information. See, for example, United States ex 
rel. Touhy v. Ragen, 340 U.S. 462 (1951); Boron Oil Co. v. Downie, 873 
F.2d 67 (4th Cir. 1989); United States v. Bizzard, 674 F.2d 1382 (11th 
Cir. 1982); United States v. Marino, 658 F.2d 1120 (6th Cir. 1981); 
United States v. Allen, 554 F.2d 398 (10th Cir. 1977).
    To overcome Federal statutory restrictions on the disclosure of the 
requested file imposed by the Privacy Act, 5 U.S.C. Sec. 552a, you must 
provide either a written release authorization signed by the individual 
to whom the file pertains (that is, SSG Kramer) or a court ordered 
release signed by a judge of a court of competent jurisdiction. A 
subpoena signed by a clerk of court, notary, or other official is 
insufficient. See, for example, Doe v. DiGenova, 779 F.2d 74 (DC Cir. 
1985).
    In this case, because of the attorney-client relationship between 
Captain Selby and SSG Kramer, you must produce a written waiver of the 
attorney-client privilege from SSG Kramer. Because the privilege may 
protect both documents and testimony, Captain Selby may not divulge such 
information without SSG Kramer's consent. See, for example, Rule of 
Professional Conduct for Army Lawyers 1.6(a).
    In addition to the above requirements, Captain Selby's supervisor 
must approve her absence from duty. See 32 CFR Sec. 516.43. In this 
regard, we suggest you take the deposition at Fort Smith. In any event, 
however, you or your client must pay all travel expenses, as this is 
purely private litigation and witness'

[[Page 131]]

appearance must be at no expense to the United States. See id. 
Sec. 516.48(c).
    Finally, if Captain Selby does appear as a witness, she may only 
give factual testimony. She may not testify as an opinion or expert 
witness. This limitation is based on Department of Defense and Army 
policy that generally prohibits Government employees from appearing as 
expert witnesses in private litigation. See id. Secs. 97.6(e), 516.42.
    Our sole concern in this matter is to protect the interests of the 
United States Army; the Army will not block access to witnesses or 
documents to which you are lawfully entitled. So that the Army can 
adequately protect its interests in this matter, I request that you 
respond to this letter by 27 April 1993. If you have any questions, 
please call CPT Taylor at 919-882-4500.

        Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law.

             Figure G-2. Sample Fact Witness Approval Letter

Department of the Army, Office of the Staff Judge Advocate, Fort Smith, 
                    North Dakota 84165, 15 April 1993

Mr. T. Hudson Taylor,
Attorney At Law, l05 Hay Street, Whynot, ND 84167
    Dear Mr. Taylor: This letter responds to your request to interview 
and depose Captain Buzz Sawyer as a witness in Morgan v. Jones. Subject 
to the following conditions, your request is approved.
    This grant of authority is limited to factual testimony only. 
Captain Sawyer may not testify as an expert witness. This limitation is 
based on Army policy prohibiting Government employees from appearing as 
expert witnesses in private litigation. See 32 CFR Sec. 516.42. Captain 
Sawyer may not provide official information that is classified, 
privileged, or otherwise protected from public disclosure.
    The decision whether to testify in private litigation is within the 
discretion of the prospective witness. This authorization is also 
subject to the approval of the witness' supervisors to be absent during 
the period involved. Finally, because this is private litigation, the 
witness' participation must be at no expense to the United States. See 
32 CFR Sec. 516.48.
    If you have any questions, please call CPT Taylor at 919-882-4500.
        Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law

             Figure G-3. Sample Expert Witness Denial Letter

Department of the Army, Office of the Staff Judge Advocate, Fort Smith, 
                    North Dakota 84165, 15 April 1993

Mr. T. Hudson Taylor,
Attorney At Law, l05 Hay Street, Whynot, ND 84167
    Dear Mr. Taylor: This responds to your request for Mr. Charles 
Montrose to appear as an expert witness in private litigation: Smithers 
v. ABC Video. For the following reasons, the request is denied.
    Army Regulation 27-40 forbids Army personnel from providing expert 
testimony in private litigation, with or without compensation, except 
under the most extraordinary circumstances. See 32 CFR Secs. 97.6(e), 
516.42. Several reasons support the exercise of strict control over such 
witness appearances.
    The Army policy is one of strict impartiality in litigation in which 
the Army is not a named party, a real party in interest, or in which the 
Army does not have a significant interest. When a witness with an 
official connection with the Army testifies, a natural tendency exists 
to assume that the testimony represents the official view of the Army, 
despite express disclaimers to the contrary.
    The Army is also interested in preventing the unnecessary loss of 
the services of its personnel in connection with matters unrelated to 
their official responsibilities. If Army personnel testify as expert 
witnesses in private litigation, their official duties are invariably 
disrupted, often at the expense of the Army's mission and the Federal 
taxpayer.
    Finally, the Army is concerned about the potential for conflict of 
interest inherent in the unrestricted appearance of its personnel as 
expert witnesses on behalf of parties other than the United States. Even 
the appearance of such conflicts of interest seriously undermines the 
public trust and confidence in the integrity of our Government.
    This case does not present the extraordinary circumstances necessary 
to justify the requested witness' expert testimony. You have 
demonstrated no exceptional need or unique circumstances that would 
warrant (his or her) appearance. The expert testimony desired can be 
secured from non-Army sources. Consequently, we are unable to grant you 
an exception to the Army's policy.
    If you have any questions, please call me or CPT Taylor at 919-882-
4500.

        Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law.

[[Page 132]]

              Figure G-4. Sample of Doctor Approval Letter

Department of the Army, Office of the Staff Judge Advocate, Fort Smith, 
                    North Dakota 84165, 15 April 1993

Mr. T. Hudson Taylor,
Attorney At Law, 105 Hay Street, Whynot, ND 84167
    Dear Mr. Taylor: This responds to your request to depose Dr. (MAJ) 
J. McDonald, Fort Smith Medical Treatment Facility. Pursuant to 32 CFR 
Secs. 516.33-516.49, you may depose him subject to the following 
conditions:
    He may testify as to his treatment of his patient, Sergeant Rock, as 
to related laboratory tests he may have conducted, or other actions he 
took in the regular course of his duties.
    He must limit his testimony to factual matters such as his 
observations of the patient or other operative facts, the treatment 
prescribed or corrective action taken, course of recovery or steps 
required for treatment of injuries suffered, or contemplated future 
treatment.
    His testimony may not extend to hypothetical questions or to a 
prognosis. He may not testify as an ``expert.'' This limitation is based 
on Department of Defense and Army policy prohibiting present or former 
military personnel and Army civilian employees from providing opinion or 
expert testimony concerning official information, subjects, or 
activities in private litigation. See 32 CFR Secs. 97.6(e), 516.42.
    The witnesses may not provide official information that is 
classified, privileged, or otherwise protected from public disclosure. 
To protect the Army's interests, CPT Taylor or another Army attorney 
will be present during the depositions.
    To overcome restrictions imposed by the Privacy Act, 5 U.S.C. 
Sec. 552a, Dr. McDonald may not discuss matters derived from the 
patient's medical records absent the patient's written consent or a 
court order signed by a judge. A subpoena issued by someone other than a 
judge or magistrate is insufficient. See Doe v. DiGenova, 779 F.2d 74 
(D.C. Cir. 1985); Stiles v. Atlanta Gas Light Co., 453 F. Supp. 798 
(N.D. Ga. 1978).
    The decision whether to testify in private litigation is within the 
discretion of the witness, subject to the approval of his supervisors to 
be absent during the period involved.
    Finally, because this is private litigation, the witnesses' 
participation must be at no expense to the United States. See 32 CFR 
Sec. 516.48.
    If you have any questions, please call me or CPT Taylor at 919-882-
4500.

        Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law.

                Figure H-1. Procurement Fraud Indicators

                      Procurement Fraud Indicators

    1. During the identification of the government and services.
    a. Need determinations for items currently scheduled for disposal or 
reprocurement, or which have predetermined reorder levels.
    b. Excessive purchase of ``expendables'' such as drugs or auto 
parts.
    c. Inadequate or vague need assessment.
    d. Frequent changes in the need assessment or determination.
    e. Mandatory stock levels and inventory requirements appear 
excessive.
    f. Items appear to be unnecessarily declared excess or sold as 
surplus, while same items are being reprocured.
    g. It appears that an item or service is being purchased more as a 
result of aggressive marketing efforts rather than in response to a 
valid requirement.
    h. Need determination appears to be unnecessarily tailored in ways 
that can only be met by certain contractors.
    i. Items and services are continually obtained from the same source 
due to an unwarranted lack of effort to develop second sources.
    2. During the development of the statements of work and 
specifications.
    a. Statements of work and specifications appear to be intentionally 
written to fit the products or capabilities of a single contractor.
    b. Statements of work, specifications, or sole source justifications 
developed by or in consultation with a preferred contractor.
    c. Information concerning requirements and pending contracts is 
released only to preferred contractors.
    d. Allowing companies and industry personnel who participated in the 
preparation of bid packages to perform on subsequent contracts in either 
a prime or subcontractor capacity.
    e. Release of information by firms or personnel participating in 
design or engineering to companies competing for prime contract.
    f. Prequalification standards or specifications appear designed to 
exclude otherwise qualified contractors or their productions.
    g. Requirements appear split up to allow for rotating bids, giving 
each contractor his or her ``fair share.''
    h. Requirements appear split up to meet small purchase requirements 
(that is, $25,000) or to avoid higher levels of approval that would be 
otherwise required.
    i. Bid specifications or statement of work appear inconsistent with 
the items described in the general requirements.
    j. Specifications appear so vague that reasonable comparisons of 
estimate would be difficult.

[[Page 133]]

    k. Specifications appear inconsistent with previous procurements of 
similar items of services.
    3. During the presolicitation phase.
    a. Sole source justifications appear unnecessary or poorly 
supported.
    b. Statements justifying sole source or negotiated procurements 
appear inadequate or incredible.
    c. Solicitation documents appear to contain unnecessary requirements 
which tend to restrict competition.
    d. Contractors or their representatives appear to have received 
advanced information related to the proposed procurement on a 
preferential basis.
    4. During the solicitation phase.
    a. Procurement appears to be processed so as to exclude or impede 
certain contractors.
    b. The time for submission of bids appears to be unnecessarily 
limited so that only those with advance information have adequate time 
to prepare bids or proposals.
    c. It appears that information concerning the procurement has been 
revealed only to certain contractors, without being revealed to all 
prospective competitors.
    d. Bidders conferences are conducted in a way that apparently 
invites bid rigging, price fixing, or other improper collusion between 
contractors.
    e. There is an apparent intentional failure to fairly publish notice 
of the solicitation.
    f. Solicitation appears vague as to the details such as time, place 
and manner, of submitting acceptable bids.
    g. There is evidence of improper communications or social contract 
between contractors and government personnel.
    h. Controls over the number and destination of bid packages sent to 
interested bidders appear inadequate.
    i. Indications that government personnel or their families may own 
stock or have some other financial interest in either a contractor or 
subcontractor.
    j. Indications that government personnel are discussing possible 
employment for themselves or a family member with a contractor or 
subcontractor or indications that a proposal for future employment from 
a contractor or subcontractor to a government employee or his or her 
family members has not been firmly rejected.
    k. Indications that any contractor has received special assistance 
in preparation of his or her bid or proposal.
    l. It appears that a contract is given an expressed or implied 
reference to a specific subcontractor.
    m. Failure to amend solicitation to reflect necessary changes or 
modifications.
    5. During the submission of bids and proposals.
    a. Improper acceptance of a late bid.
    b. Documents, such as receipts, appear falsified to obtain 
acceptance of a late bid.
    c. Improperly attempting to change a bid after other bidders prices 
are known.
    d. Indications that mistakes have been deliberately planted in a bid 
to support correction after bid opening.
    e. Withdrawal by a low bidder who may later become a subcontractor 
to a higher bidder who gets the contract.
    f. Apparent collusion or bid rigging among the bidders.
    g. Bidders apparently revealing their prices to each other.
    h. Required contractor certifications appear falsified.
    i. Information concerning contractor's qualifications, finances, and 
capabilities appears falsified.
    6. During the evaluation of bids and proposals.
    a. Deliberately losing or discarding bids of certain contractors.
    b. Improperly disqualifying the bids or proposals of certain 
contractors.
    c. Accepting apparently nonresponsive bids from preferred 
contractors.
    d. Unusual or unnecessary contacts between government personnel and 
contractors during solicitation, evaluation, and negotiation.
    e. Any apparently unauthorized release of procurement information to 
a contractor or to non-government personnel.
    f. Any apparent favoritism in the evaluation of the bid or proposal 
of a particular contractor.
    g. Apparent bias in the evaluation criteria or in the attitude or 
actions of the members of the evaluation panel.
    7. During contract formation and administration.
    a. Defective pricing by the contractor usually associated with 
submitting false cost and pricing data under the Truth in Negotiation 
Act.
    b. Cost/Labor mischarging.
    c. Product substitution.
    d. Progress payment fraud. For more details on these subjects see DA 
PAM 27-153, Contract Law, paragraph 23-5.

              Figure H-2. Guide for Preparing Remedies Plan

                   Guide for Preparing a Remedies Plan

                             (Date of Plan)

                     Section I (Administrative Data)

A. Subject of Allegation.
B. Principal Investigative Agency.
C. Investigative Agency File Number.
D. Subject's Location.
E. Location Where Offense Took Place.
F. Responsible Action Commander.
G. Responsible MACOM.
H. Contract Administrative Data (If Applicable):
    1. Contract Number.

[[Page 134]]

    2. Type of Contract.
    3. Dollar Amount of Contract.
    4. Period of Contract.
I. Principal Case Agent (Name and Telephone Number).
J. Civilian Prosecutor (If Applicable) (Name, Address, and Telephone 
          Number).
K. Is Grand Jury Investigating This Matter? If So, Where is Grand Jury 
          Located?
L. Audit Agency Involved (If Applicable). Name and Telephone Number of 
          Principal Auditor.
M. Suspense Date for Update of This Plan.

  Section II (Summary of Allegations and Investigative Results to Date)

    (Provide sufficient detail for reviewers of the plan to evaluate the 
appropriateness of the planned remedies. If information is ``close-
hold'' or if grand jury secrecy applies, so state.)

                 Section III (Adverse Impact Statement)

    (Describe any adverse impact on the DA/DOD mission. Adverse impact 
is described in DOD Directive 7050.5, paragraph E.1.g. Identify impact 
as actual or potential. Describe the impact in terms of monetary loss, 
endangerment to personnel or property, mission readiness, etc. This 
information should be considered in formulating your remedies as 
described below and provided to prosecutors for their use in prosecution 
of the offenses.)

            Section IV (Remedies Taken and/or Being Pursued)

    A. Criminal Sanctions. (As a minimum, address the following: Are 
criminal sanctions appropriate? If so, which ones? If not, why not? Has 
the local U.S. Attorney or other civilian prosecutor been notified and 
briefed? What actions have been taken or are intended? If and when 
action is complete, describe action and final results of the action. 
Other pertinent comments should be included.)
    B. Civil Remedies. (As a minimum address the following: Which civil 
remedies are appropriate? Has the local U.S. Attorney or other civilian 
prosecutor been notified and briefed? How, when, where and by whom are 
the appropriate civil remedies implemented? If and when action is 
completed, describe action and final results. Other pertinent comments 
should be included.)
    C. Contractual/Administrative Remedies. (As a minimum, address the 
following: Are contractual and administrative remedies appropriate: If 
so, which ones? If not, Why? If contractual or administrative remedies 
are considered appropriate, describe how, when, and by whom the remedies 
are implemented. If and when action is completed, describe action and 
results of the action. Other pertinent comments should be included.)
    D. Restrictions on Remedies Action. (Comment as to why obvious 
remedies are not being pursued. For example, the U.S. Attorney requests 
suspension action held in abeyance pending criminal action.)

             Section V (Miscellaneous Comments/Information)

                 Section VI (Remedies Plan Participants)

(Record the name, grade, organization, and telephone number of all 
Remedies Plan participants.)

                Section VII (MACOM Coordination Comments)

(Record the name, grade, office symbol, and telephone number of all 
MACOM officials providing coordination comments; record the date when 
comments are submitted and append to the Remedies Plan the signed 
comments provided.)

                            MACOM Focal Point

(Record the name, grade, office symbol, and telephone number of the 
MACOM focal point.)

                  Section VIII (Coordination/Comments)

(Record the name, grade, organization, office symbol, and telephone 
number of all officials with whom you have coordinated the Remedies Plan 
or who have provided comments on your plan; append any comments provided 
to the Remedies Plan.)

 Figure H-3. Guide for Testing Defective Items Under Criminal or Civil 
                              Investigation

      Testing Defective Items Under Criminal or Civil Investigation

    1. Under no circumstances is testing to proceed unless the command 
has committed sufficient funding to cover the entire cost of the 
projected testing.
    2. No testing will be initiated unless there has been a written 
request for the testing to the appropriate Procurement Fraud Advisor 
from a criminal investigator or Assistant United States Attorney or 
Department of Justice Attorney (AUSA is used in these procedures to 
indicate either an AUSA or Department of Justice attorney). If they have 
not already done so, criminal investigators should be requested to 
coordinate their testing requests with the AUSA overseeing the 
investigation.
    3. Barring extraordinary circumstances, only one test will be 
conducted to support the criminal and civil recovery efforts of a 
procurement fraud/irregularity matter. Early coordination with the Civil 
Division of Department of Justice or the local United States Attorneys 
Office is necessary to ensure that testing funds are not wasted.

[[Page 135]]

    4. The request for testing should include a clear, concise statement 
of the purpose of the testing to include a statement of the allegations 
made and the contact number(s) involved. Any test plan which requires 
destructive testing must be approved by the AUSA.
    5. No testing will be initiated unless a test plan has been 
developed which states the following:

a. the contract number(s) involved
b. the National Stock Number (NSN) of the item to be tested
c. the purpose of the testing
d. the alleged defect or the contractual requirement violated
e. the CID report of investigation (ROI) number or the DCIS case number
f. cost of the test (a cost proposal should be an attachment to the test 
          plan)
g. where the test will be conducted
h. how the test will be conducted
i. the name and telephone number of the test team leader
j. the names of all test team members
k. the approximate dates of the testing
l. the date that completion of the test is required
m. a clear statement of the desired product (that is test report, raw 
          data, analysis of results, evaluation of test results)
n. the PRON to fund the testing
o. a retention plan.
    6. The test plan shall be coordinated with the concurrence received 
in advance from the appropriate personnel in the Procurement 
Directorate, Product Assurance and Test Directorate, the Procurement 
Fraud Advisor, and the investigator/AUSA requesting the test. No testing 
will be initiated until the criminal investigator/AUSA who requested the 
testing has approved the test plan.
    7. If the items tested are to be retained as evidence, the criminal 
investigator should arrange for retention of the evidence. While the 
Command will support evidence retention, this is primarily the 
responsibility of the criminal investigators. Agents should be advised 
that putting items in Code L or similar non-use status is insufficient 
to protect it from being released to the field. A decision not to retain 
the tested items as evidence must have the approval of the AUSA.
    8. All items to be tested should be from a statistically valid 
random sample. The sample should conform with the inspection 
requirements of the contract or be in conformance with a random sample 
specifically developed for the instant test plan. It is recommended that 
a statistician be consulted to determine the feasibility of a random 
sample specifically created to support the test plan.
    9. Results of testing should be available to Command and DA 
personnel for appropriate contractual and administrative remedies. Any 
request for testing results that indicates that dissemination of the 
testing results will be limited by Rule 6(e) of the Federal Rules of 
Criminal Procedure is to be forwarded through the MACOM or AMC 
Procurement Fraud Coordinator to DA Procurement Fraud Division prior to 
the initiation of any testing.
    10. Resolution of problems associated with testing requests should 
be conducted at the local level. In AMC the authority to refuse a 
testing request resides with the Office of Command Counsel. Any disputes 
which cannot be resolved at the local level will be forwarded to the AMC 
or MACOM Procurement Fraud Coordinator for resolution. This includes 
disputes regarding funding or any time sensitive issues.
    11. Second requests for testing of the same item due to a change in 
the investigative plan require coordination by the PFA with the 
investigator and AUSA overseeing the investigation to determine the 
deficiencies in the earlier test. Disputes which cannot be resolved 
between the AUSA, PFA, and investigator regarding testing are to be 
forwarded simultaneously to the MACOM Procurement Fraud Coordinator and 
PFD for resolution. The procedures established in paragraphs 5 and 6 
apply for second requests for testing with the additional requirement 
that the Assistant United States Attorney must be requested to approve 
the test plan.

  Figure I-1. Guide for Seeking Legal Advice and Representation Before 
                        Office of Special Counsel

   Guide for Seeking Legal Advice and Representation Before Office of 
                             Special Counsel

                               1. Overview

    a. DA employees or military members asked to provide information 
(testimonial or documentary) to OSC may obtain legal advice through the 
Labor Counselor from DA attorneys concerning their rights and 
obligations. This includes assistance at any interviews with OSC 
investigators. However, an attorney-client relationship will not be 
established unless the employee or military member--
    (1) Is suspected or accused by the OSC of committing a prohibited 
personnel practice or other illegal or improper act; and
    (2) Has been assigned counsel by the DA General Counsel.
    b. Any military member or employee who reasonably believes that he 
or she is suspected or has been accused by OSC of committing a 
prohibited personnel practice or other illegal or improper act may 
obtain legal representation from DA. The counsel assigned will be from 
another DOD component whenever a DA attorney is likely to face a 
conflict between the attorney's ethical obligation to the client and DA, 
or when

[[Page 136]]

the suspected or accused individual has requested representation from 
another DOD component. Outside legal counsel may be retained by DA on 
behalf of the member or employee under unusual circumstances and only 
with the personal approval of the DOD General Counsel.
    c. The DA General Counsel will determine whether a conflict is 
likely to occur if a DA attorney is assigned to represent a military 
member or civilian. If the DA General Counsel determines a conflict may 
occur, or if the suspected or accused employee has requested 
representation from another DOD component, the DA General Counsel will 
seek the assistance of another General Counsel in obtaining 
representation outside DA.
    2. Requests for Representation
    a. To obtain legal representation, military members or civilian 
employees must--
    (1) Submit a written request for legal representation through the 
Labor and Employment Law Office, Office of the Judge Advocate General, 
Department of the Army, to DA General Counsel, explaining the 
circumstances that justify legal representation. Copies of all process 
and pleadings served should accompany the request.
    (2) Indicate whether private counsel, at personal expense, has been 
retained.
    (3) Obtain written certification from their supervisor that--
    (a) They were acting within the scope of official duties; and
    (b) DA has not initiated any adverse or disciplinary action against 
them for the conduct being investigated by the OSC.
    b. Requests for DA legal representation must be approved by the DA 
General Counsel.
    c. The conditions of legal representation must be explained and 
accepted in writing by the member or employee.

                    3. Limitations on Representation

    a. DA will not provide legal representation with respect to a DA 
initiated disciplinary action against a civilian employee for committing 
or participating in a prohibited personnel practice or for engaging in 
illegal or improper conduct. This prohibition applies regardless of 
whether the participation or conduct is also the basis for the 
disciplinary action proposed by the OSC.
    b. In certain situations, counsel provided by DA may be limited to 
representing the individual only with respect to some of the pending 
matters, if other specific matters of concern to the OSC or MSPB do not 
satisfy the requirements contained in this regulation.

                     4. Attorney-Client Relationship

    a. An attorney-client relationship will be established and continued 
between the suspected or accused individual and assigned DA counsel.
    b. In representing a DA employee or military member, the DA attorney 
designated as counsel will act as a vigorous advocate of the 
individual's legal interests before the OSC or MSPB. The attorney's 
professional responsibility to DA will be satisfied by fulfilling this 
responsibility to the employee or military member. Legal representation 
may be terminated only with the approval of the DA General Counsel and 
normally only on the basis of information not available at the time the 
attorney was assigned.
    c. The attorney-client relationship may be terminated if the 
assigned DA counsel determines, with the approval of the DA General 
Counsel, that--
    (1) The military member or civilian employee was acting outside the 
scope of his or her official duties when engaging in the conduct that is 
the basis for the OSC investigation or charge; and
    (2) Termination is not in violation of the rules of professional 
conduct applicable to the assigned counsel.
    d. The DA attorney designated as counsel may request relief from the 
duties of representation or counseling without being required to furnish 
explanatory information that might compromise confidential 
communications between the client and the attorney.

                               5. Funding

    This regulation authorizes cognizant DA officials to approve 
requests from military members or civilian employees for travel, per 
diem, witness appearances, or other departmental support necessary to 
ensure effective legal representation by the designated counsel.

                                6. Status

    A military member's or civilian employee's participation in OSC 
investigations, MSPB hearings, and other related proceedings will be 
considered official departmental business for time and attendance 
requirements and similar purposes.

                         7. Advice to Witnesses

    The following advice to military members and civilian employees 
questioned during the course of an OSC investigation may be appropriate 
in response to these frequent inquiries:
    a. A witness may decline to provide a ``yes'' or ``no'' answer in 
favor of a more qualified answer when this is necessary to ensure 
accuracy in responding to an OSC interviewer's question.
    b. Requests for clarification of both questions and answers are 
appropriate to avoid misinterpretation.

[[Page 137]]

    c. Means to ensure verifications of an interview by OSC 
investigators are appropriate, whether or not the military member or 
civilian employee is accompanied by counsel. Tape recorders may only be 
used for this purpose when--
    (1) The recorder is used in full view.
    (2) All attendees are informed.
    (3) The OSC investigator agrees to record the proceeding.
    d. Any errors that appear in a written summary of an interview 
prepared by the investigator should be corrected before the member or 
employee signs the statement. The military member or civilian employee 
is not required to sign any written summary that is not completely 
accurate. A military member or civilian employee may receive a copy of 
the summary as a condition of signing.



PART 518--THE ARMY FREEDOM OF INFORMATION ACT PROGRAM--Table of Contents




                      Subpart A--General Provisions

                               References

Sec.
518.1  References.
518.2  References (Army).

                        Purpose and Applicability

518.3  Purpose.
518.4  Applicability.

                         DoD Public Information

518.5  ODISC4 Authority to approve exceptions.
518.6  Public information.
518.7  Control system.

                               Definitions

518.8  Definitions and terms.
518.9  FOIA request.
518.10  Agency record.
518.11  DoD component.
518.12  Initial denial authority (IDA).
518.13  Appellate authority.
518.14  Administrative appeal.
518.15  Public interest.
518.16  Electronic data.
518.17  Law enforcement investigation.

                                 Policy

518.18  Compliance with the FOIA.
518.19  Openness with the public.
518.20  Avoidance of procedural obstacles.
518.21  Prompt action on requests.
518.22  Use of exemptions.
518.23  Public domain.
518.24  Creating a record.
518.25  Description of requested record.
518.26  Referrals.
518.27  Authentication.
518.28  Unified and specified commands.
518.29  Relationship between the FOIA and the Privacy Act (PA).
518.30  Records management.

                      Subpart B--FOIA Reading Rooms

                              Requirements

518.31  Reading room.
518.32  Material availability.

                                 Indexes

518.33  ``(a)(2)'' materials.
518.34  Other materials.

                          Subpart C--Exemptions

                           General Provisions

518.35  General.
518.36  Jeopardy of government interest.

                               Exemptions

518.37  FOIA exemptions.

                    Subpart D--For Official Use Only

                           General Provisions

518.38  General.
518.39  Prior FOUO application.
518.40  Historical papers.
518.41  Time to mark records.
518.42  Distribution statement.
518.43  Location of markings.

                     Dissemination and Transmission

518.44  Release and transmission procedures.
518.45  Transporting FOUO information.
518.46  Electrically transmitted messages.
518.47  Telephone usage.

                      Safeguarding FOUO Information

518.48  During duty hours.
518.49  During nonduty hours.

           Termination, Disposal and Unauthorized Disclosures

518.50  Termination.
518.51  Disposal.
518.52  Unauthorized disclosure.

              Subpart E--Release and Processing Procedures

                           General Provisions

518.53  Public information.
518.54  Requests from private parties.
518.55  Requests from Government officials.
518.56  Privileged release to officials.
518.57  Required coordination.

                         Initial Determinations

518.58  Initial denial authority.
518.59  Reasons for not releasing a record.
518.60  Denial tests.
518.61  Reasonably segregable portions.

[[Page 138]]

518.62  Response to requester.
518.63  Extension of time.
518.64  Misdirected requests.
518.65  Records of non-U.S. Government source.
518.66  File of initial denials.
518.67  Special mail services.
518.68  Receipt accounts.

                                 Appeals

518.69  General.
518.70  Time of receipt.
518.71  Time limits.
518.72  Delay in responding to an appeal.
518.73  Response to the requester.
518.74  Consultation.

                            Judicial Actions

518.75  General.
518.76  Jurisdiction.
518.77  Burden of proof.
518.78  Action by the court.
518.79  Non-United States Government source information.
518.80  Litigation status sheet.

                         Subpart F--Fee Schedule

                           General Provisions

518.81  Authorities.
518.82  Application.
518.83  Fee restrictions.
518.84  Fee waivers.
518.85  Fee assessment.
518.86  Aggregating requests.
518.87  Effect of the Debt Collection Act of 1982 (Pub. L. 97-365).
518.88  Computation of fees.

                    Collection of Fees and Fee Rates

518.89  Collection of fees.
518.90  Search time.
518.91  Duplication.
518.92  Review time (in the case of commercial requesters).
518.93  Audiovisual documentary materials.
518.94  Other records.
518.95  Costs for special services.

           Collection of Fees and Fee Rates for Technical Data

518.96  Fees for technical data.

                           Subpart G--Reports

                             Reports Control

518.97  General.

                              Annual Report

518.98  Reporting time.
518.99  Annual report content.

                    Subpart H--Education and Training

                       Responsibility and Purpose

518.100  Responsibility.
518.101  Purpose.
518.102  Scope and principles.
518.103  Implementation.
518.104  Uniformity of legal interpretation.

                         Appendices to Part 518

Appendix A to Part 518--Unified Commands--Processing Procedures for FOI 
          Appeals
Appendix B--Addressing FOIA Requests
Appendix C--Litigation Status Sheet
Appendix D--Other Reason Categories
Appendix E--DoD Freedom of Information Act Program Components
Appendix F--DD Form 2564, Annual Report--Freedom of Information Act
Appendix G--Internal Control Review Checklist

    Authority: 5 U.S.C. 551, 552, 552a, 5101-5108, 5110-5113, 5115, 
5332-5334, 5341-42, 5504-5509, 7154; 10 U.S.C. 130, 1102, 2320-2321, 
2328, 18 U.S.C. 798, 3500; 31 U.S.C. 3710; 35 U.S.C. 181-188; 42 U.S.C. 
2162; 44 U.S.C. 33; and Executive Order 12600.

    Source: 56 FR 48932, Sept. 26, 1991, unless otherwise noted.



                      Subpart A--General Provisions

                               References



Sec. 518.1  References.

    (a) Title 5, United States Code, section 552.
    (b) DoD Directive 5400.7, ``DoD Freedom of Information Act 
Program,'' May 13, 1988.
    (c) Public Law 86-36, ``National Security Information Exemption.''
    (d) DoD Directive 5400.11, ``Department of Defense Privacy 
Program,'' June 9, 1982.
    (e) DoD 5400.11-R, ``Department of Defense Privacy Program,'' August 
1983, authorized by DoD Directive 5400.11, June 9, 1982.
    (f) DoD Directive 5100.3, ``Support of the Headquarters of Unified, 
Specified and Subordinate Commands,'' November 1, 1988.
    (g) Title 5, United States Code, section 551, ``Administrative 
Procedures Act.''
    (h) DoD 5200.1-R, ``DoD Information Security Program Regulation,'' 
January 1987, authorized by DoD Directive 5200.1, June 7, 1982.

[[Page 139]]

    (i) Title 35, United States Code, section 181-188, ``Patent 
Secrecy.''
    (j) Title 42, United States Code, section 2162, ``Restricted Data 
and Formerly Restricted Data.''
    (k) Title 18, United States Code, section 98, ``Communication 
Intelligence.''
    (l) Title 18, United States Code, section 3500, ``The Jencks Act.''
    (m) DoD Directive 5230.24, ``Distribution Statements on Technical 
Documents,'' March 18, 1987.
    (n) DoD Directive 5400.4, ``Provision of Information to Congress,'' 
January 30, 1978.
    (o) DoD Directive 7650.1, ``General Accounting Office Access to 
Records,'' August 26, 1982.
    (p) ACP-121 (United States Supplement 1).
    (q) Title 44, United States Code, chapter 33, ``Disposal of 
Records.''
    (r) DoD Instruction 7230.7, ``User Charges,'' January 29, 1985.
    (s) DoD Directive 5000.11, ``Data Elements and Data Codes 
Standardization Program,'' December 7, 1964.
    (t) DoD Directive 7750.5, ``Management and Control of Information 
Requirements,'' August 7, 1986.
    (u) DoD 7220.9-M, ``Department of Defense Accounting Manual,'' 1983, 
authorized by DOD Instruction 7220.9, October 22, 1981.
    (v) DoD Directive 5230.25, ``Withholding of Unclassified Technical 
Data From Public Disclosure,'' November 6, 1984.
    (w) DoD Directive 5230.9, ``Clearance of DoD Information for Public 
Release,'' April 2, 1982.
    (x) DoD Directive 7650.2, ``General Accounting Office Audits and 
Reports,'' July 19, 1985.
    (y) Title 10, United States Code, section 2328, ``Release of 
Technical Data under Freedom of Information Act: Recovery of Costs''.
    (z) Title 10, United States Code, section 130, ``Authority to 
Withhold from Public Disclosure Certain Technical Data.''
    (aa) Title 10, United States Code, section 2320-2321, ``Rights in 
Technical Data.''
    (bb) Title 10, United States Code, section 1102, ``Confidentiality 
of Medical Quality Records: Qualified Immunity Participants.''
    (cc) DoD Federal Acquisition Regulation Supplement (DFARS), subpart 
227.4, ``Technical Data, Other Data, Computer Software and Copyrights,'' 
October 28, 1988.
    (dd) Executive Order 12600, ``Predisclosure Procedures for 
Confidential Commercial Information,'' June 23, 1987.
    (ee) Title 31, United States Code, section 3717, ``Interest and 
Penalty on Claims.''
    (ff) Title 5, United States Code, section 552a, as amended, ``The 
Privacy Act of 1974.''
    (gg) DoD 5000.12-M, ``DoD Manual for Standard Data Elements,'' 
October 1986, authorized by DoD Instruction 5000.12, July 1989.
    (hh) DoD Instruction 5400.10, ``OSD Implementation of DoD Freedom of 
Information Act Program,'' January 24, 1991.
    (ii) Title 32, Code of Federal Regulations, part 518, The Army 
Freedom of Information Act Program.
    (jj) Title 10, United States Code, section 128, ``Physical 
Protection of Special Nuclear Material: Limitation on Dissemination of 
Unclassified Information''.
    (kk) Public Law 101-189, National Defense Authorization Act, 
November 1989, 103 Stat. 1352.



Sec. 518.2  References (Army).

    (a) Required publications.\1\
---------------------------------------------------------------------------

    \1\ All publications and forms referenced in this section are 
available from National Technical Information Services, U.S. Department 
of Commerce, 5285 Port Royal Road, Springfield, Virginia 22161.
---------------------------------------------------------------------------

    (1) AR 1-20 (Legislative Liaison) (cited in Secs. 518.44 and 
518.46).
    (2) AR 20-1 (Inspector General Activities and Procedures) (cited in 
Secs. 518.4, 518.58 and appendix B).
    (3) AR 25-1 (The Army Information Resource Management Program) 
(cited in Secs. 518.3 and 518.29).
    (4) AR 25-9 (Army Data Management and Standards Program) (cited in 
Sec. 518.98).
    (5) AR 25-400-2 (The Modern Army Recordkeeping System (MARKS)) 
(cited in Secs. 518.30, 518.51, 518.66, and appendix B).
    (6) AR 27-20 (Claims) (cited in Sec. 518.4 and 518.51).

[[Page 140]]

    (7) AR 36-2 (Processing Internal and External Audit Reports and 
Follow-up on Findings and Recommendations) (cited in Sec. 518.4).
    (8) AR 40-66 (Medical Record and Quality Assurance Administration) 
(cited in Sec. 518.17).
    (9) AR 40-400 (Patient Administration) (cited in Sec. 518.4).
    (10) AR 25-11 (Record Communications) (cited in Sec. 518.46).
    (11) AR 195-2 (Criminal Investigation Activities) (cited in 
Secs. 519.4-519.56).
    (12) AR 340-21 (The Army Privacy Program) (cited in Secs. 518.22, 
518.37 and 518.56).
    (13) AR 360-5 (Public Information) (cited in Secs. 518.4 and 
518.54).
    (14) AR 380-5 (Department of the Army Information Security Program) 
(cited in Secs. 518.4, 518.37, 518.53 and 518.56).
    (15) AR 530-1 (Operations Security (OPSEC)) (cited in Secs. 518.53 
and 518.54).
    (16) AR 600-85 (Alcohol and Drug Abuse Prevention and Control 
Program) (cited in Sec. 518.4 and 518.54).
    (b) Related publications. A related publication is merely a source 
of additional information. The user does not have to read it to 
understand this regulation.
    (1) AR 5-13 (Installation Management and Organization).
    (2) AR 10-series (Organization and Functions).
    (3) AR 25-3 (Army Life Cycle Management of Information Systems).
    (4) AR 27-10 (Military Justice).
    (5) AR 27-40 (Litigation).
    (6) AR 27-60 (Patents, Inventions, and Copyrights).
    (7) AR 60-20 (Army and Air Force Exchange Service (AAFES) Operating 
Policies) (AFR 147-14).
    (8) AR 70-31 (Standards for Technical Reporting).
    (9) AR 190-45 (Military Police Law Enforcement Reporting).
    (10) AR 380-10 (Department of the Army Policy for Disclosure of 
Information, Visits, and Accreditation of Foreign Nationals (U)).
    (11) AR 381-45 (Investigative Records Repository (IRR)).
    (12) AR 385-40 (Accident Reporting and Records).
    (13) AR 640-10 (Individual Military Personnel Records).
    (14) DA Pam 25-30 (Consolidated Index of Army Publications and Blank 
Forms).
    (15) DA Pam 25-51 (The Army Privacy Program-Systems Notices and 
Exemption Rules).
    (16) DA Pam 385-95 (Aircraft Accident Investigation and Reporting).
    (17) DoD 4500.11-PH (Defense Privacy Board Advisory Opinions).
    (18) Title 10, United States Code, section 128, ``Physical 
Protection of Special Nuclear Material: Limitation on Dissemination of 
Unclassified Information''.
    (c) Prescribed forms.
    (1) DA Form 4948-R (Freedom of Information Act (FOIA/Operations 
Security) (OPSEC) Desktop Guide) (prescribed in Secs. 518.50 and 
518.49).
    (2) DA Label 87 (For Official Use Only Cover Sheet) (prescribed in 
Secs. 518.41 and 518.44).
    (3) DD Form 2086 (Record of Freedom of Information (FOI) Processing 
Cost) (prescribed in Sec. 518.81).
    (4) DD Form 2086-1 (Record of Freedom of Information (FOI) 
Processing Cost for Technical Data) (prescribed in Sec. 518.92a).

                        Purpose and Applicability



Sec. 518.3  Purpose.

    The purpose of this Regulation is to provide policies and procedures 
for the Department of Defense (DoD) implementation of the Freedom of 
Information Act and DoD Directive 5400.7 (references (a) and (b)) and to 
promote uniformity in the DoD Freedom of Information Act (FOIA) Program. 
This Army regulation implements provisions for access and release of 
information from all Army information systems (automated and manual) in 
support of the Information Resources Management Program (AR 25-1).



Sec. 518.4  Applicability.

    (a) This Regulation applies to the Office of the Secretary of 
Defense (OSD), which includes for the purpose of this Regulation the 
Joint Staff, Unified Commands, the Military Departments, the Defense 
Agencies, and the DoD Field Activities (hereafter referred to as ``DoD 
Components''), and takes

[[Page 141]]

precedence over all Component regulations that supplement the DoD FOIA 
Program. A list of DoD Components is at enclosure 1 (appendix G).
    (b) The National Security Agency records are subject to the 
provisions of this Regulation, only to the extent the records are not 
exempt under Public Law 86-36 (reference (c)).
    (c) This part applies to--
    (1) Active Army.
    (2) Army National Guard.
    (3) U.S. Army Reserve.
    (4) Organizations for which the Department of the Army (DA) is the 
Executive Agent.
    (d) This regulation governs written FOIA requests from members of 
the public. It does not preclude release of personnel or other records 
to agencies or individuals in the Federal Government for use in official 
work. Section 518.52(a) gives procedures for release of personnel 
information to Government agencies outside DOD.
    (e) Soldiers and civilian employees of the Department of the Army 
may, as private citizens, request DA or other agencies' records under 
the FOIA. They must prepare requests at their own expense and on their 
own time. They may not use Government equipment, supplies, or postage to 
prepare personal FOIA requests. It is not necessary for soldiers or 
civilian employees to go through the chain of command to request 
information under the FOIA.
    (f) Requests for DA records processed under the FOIA may be denied 
only in accordance with the FOIA (5 U.S.C. 552(b)), as implemented by 
this regulation. Guidance on the applicability of the FOIA is also found 
in the Federal Acquisition Regulation (FAR) and in the Federal Personnel 
Manual (FPM).
    (g) Release of some records may also be affected by the programs 
that created them. They are discussed in the following regulations:
    (1) AR 20-1 (Inspector General reports).
    (2) AR 27-10 (military justice).
    (3) AR 27-20 (claims reports).
    (4) AR 27-60 (patents, inventions, and copyrights).
    (5) AR 27-40 (litigation: release of information and appearance of 
witnesses).
    (6) AR 36-2 (GAO audits).
    (7) AR 40-66 and AR 40-400 (medical records).
    (8) AR 70-31 (technical reports).
    (9) AR 20-1, AR 385-40, and DA Pam 385-95 (aircraft accident 
investigations).
    (10) AR 195-2 (criminal investigation activities).
    (11) AR 190-45 (Military Police records and reports).
    (12) AR 360-5 (Army public affairs: public information, general 
policies on release of information to the public).
    (13) AR 380-10 (release of information on foreign nationals).
    (14) AR 381-45 (U.S. Army Intelligence and Security Command 
investigation files).
    (15) AR 385-40 (safety reports and records).
    (16) AR 600-85 (alcohol and drug abuse records).
    (17) AR 640-10 (military personnel records).
    (18) AR 690 series, FPM Supplement 293-31; FPM chapters 293, 294, 
and 339 (civilian personnel records).
    (19) AR 380-5 and DOD 5200.1-R (national security classified 
information).
    (20) Federal Acquisition Regulation (FAR), DOD Federal Acquisition 
Regulation Supplement (DFARS), and the Army Federal Acquisition 
Regulation Supplement (AFARS) (procurement matters).
    (21) AR 380-5, paragraph 7-101e (policies and procedures for 
allowing persons outside the Executive Branch to do unofficial 
historical research in classified Army records.

                         DoD Public Information



Sec. 518.5  ODISC4 Authority to approve exceptions.

    The ODISC4 has the authority to approve exceptions to this part 
which are consistent with controlling law and regulation. The ODISC4 may 
delegate this authority in writing to a division chief within the 
proponent agency who holds the rank of colonel or the civilian 
equivalent. The approval authority coordinate all questions regarding 
the scope of authority to approve exceptions with Headquarters 
Department of

[[Page 142]]

the Army, Office of The Judge Advocate General, ATTN: DAJA-AL, 
Washington, DC 20310-2200.

[56 FR 48932, Sept. 26, 1991, as amended at 56 FR 56010, Oct. 31, 1991]



Sec. 518.6  Public information.

    The public has a right to information concerning the activities of 
its Government. DoD policy is to conduct its activities in an open 
manner and provide the public with a maximum amount of accurate and 
timely information concerning its activities, consistent always with the 
legitimate public and private interests of the American people. A DoD 
record requested by a member of the public who follows rules established 
by proper authority in the Department of Defense shall be withheld only 
when it is exempt from mandatory public disclosure under the FOIA. In 
the event a requested record is exempt under the FOIA, it may 
nonetheless be released when it is determined that no governmental 
interest will be jeopardized by the release of the record. (See 
Sec. 518.36 for clarification.) In order that the public may have timely 
information concerning DoD activities, records requested through public 
information channels by news media representatives that would not be 
withheld if requested under the FOIA should be released upon request 
unless the requested records are in a Privacy Act system of records; 
such records in a Privacy Act system of records will not be released 
absent a written request under the FOIA, unless otherwise releasable 
under the Privacy Act. Prompt responses to requests for information from 
news media representatives should be encouraged to eliminate the need 
for these requesters to invoke the provisions of the FOIA and thereby 
assist in providing timely information to the public. Similarly, 
requests from other members of the public for information should 
continue to be honored through appropriate means even though the request 
does not qualify under FOIA requirements.



Sec. 518.7  Control system.

    A request for records that invokes the FOIA shall enter a formal 
control system designed to ensure compliance with the FOIA. A release 
determination must be made and the requester informed within the time 
limits specified in this Regulation. Any request for DoD records that 
either explicitly or implicitly cites the FOIA shall be processed under 
the provisions of this Regulation, unless otherwise required by 
Sec. 518.31.

                               Definitions



Sec. 518.8  Definitions and terms.

    As used in this regulation, definitions and terms are listed in 
appendix F to this part.



Sec. 518.9  FOIA request.

    A written request for DoD records, made by any person, including a 
member of the public (U.S. or foreign citizen), an organization, or a 
business, but not including a Federal agency or a fugitive from the law 
that either explicitly or implicitly invokes the FOIA, DoD Directive 
5400.7 (reference b), this part, or DoD Component supplementing 
regulations or instructions. This part is the Department of the Army's 
supplementing regulation.



Sec. 518.10  Agency record.

    (a) The products of data compilation, such as all books, papers, 
maps, and photographs, machine readable materials or other documentary 
materials, regardless of physical form or characteristics, made or 
received by an agency of the United States Government under Federal law 
in connection with the transaction of public business and in DoD's 
possession and control at the time the FOIA request is made.
    (b) The following are not included within the definition of the word 
``record'':
    (1) Objects or articles, such as structures, furniture, vehicles and 
equipment, whatever their historical value, or value as evidence.
    (2) Administrative tools by which records are created, stored, and 
retrieved, if not created or used as sources of information about 
organizations, policies, functions, decisions, or procedures of a DoD 
Component. Normally, computer software, including source code, object 
code, and listings of source and object codes, regardless of

[[Page 143]]

medium are not agency records. (This does not include the underlying 
data which is processed and produced by such software and which may in 
some instances be stored with the software.) Exceptions to this position 
are outlined in paragraph (c) of this section.
    (3) Anything that is not a tangible or documentary record, such as 
an individual's memory or oral communication.
    (4) Personal records of an individual not subject to agency creation 
or retention requirements, created and maintained primarily for the 
convenience of an agency employee, and not distributed to other agency 
employees for their official use.
    (5) Information stored within a computer for which there is no 
existing computer program for retrieval of the requested information.
    (c) In some instances, computer software may have to be treated as 
an agency record and processed under the FOIA. These situations are 
rare, and shall be treated on a case-by-case basis. Examples of when 
computer software may have to be treated as an agency record are:
    (1) When the data is embedded within the software and cannot be 
extracted without the software. In this situation, both the data and the 
software must be reviewed for release or denial under the FOIA.
    (2) Where the software itself reveals information about 
organizations, policies, functions, decisions, or procedures of a DoD 
Component, such as computer models used to forecast budget outlays, 
calculate retirement system costs, or optimization models on travel 
costs.
    (3) See subpart C of this part for guidance on release 
determinations of computer software.
    (d) A record must exist and be in the possession and control of the 
Department of Defense at the time of the request to be considered 
subject to this Regulation and the FOIA. There is no obligation to 
create, compile, or obtain a record to satisfy an FOIA request.
    (e) If unaltered publications and processed documents, such as 
regulations, manuals, maps, charts, and related geophysical materials 
are available to the public through an established distribution system 
with or without charge, the provisions of 5 U.S.C. 552(a)(3) normally do 
not apply and they need not be processed under the FOIA. Normally, 
documents disclosed to the public by publication in the Federal Register 
also require no processing under the FOIA. Components should direct the 
requester to the appropriate source to obtain the record.

[56 FR 48932, Sept. 26, 1991, as amended at 56 FR 56010, Oct. 31, 1991]



Sec. 518.11  DoD component.

    An element of the Department of Defense, as defined in Sec. 518.4, 
authorized to receive and act independently on FOIA requests. A DoD 
Component has its own initial denial authority (IDA) or appellate 
authority, and general counsel. The Department of the Army is a DOD 
Component.



Sec. 518.12  Initial denial authority (IDA).

    An official who has been granted authority by the head of a DoD 
Component to withhold records requested under the FOIA for one or more 
of the nine categories of records exempt from mandatory disclosure. The 
Department of the Army's Initial Denial Authorities are designated in 
Sec. 518.58(d).



Sec. 518.13  Appellate authority.

    The Head of the DoD Component or the Component head's designee 
having jurisdiction of this purpose over the record. The Department of 
the Army's appellate authority is the Office of General Counsel.



Sec. 518.14  Administrative appeal.

    A request by a member of the general public, made under the FOIA, 
asking the appellate authority of a DoD Component to reverse an IDA 
decision to withhold all or part of a requested record or to deny a 
request for waiver or reduction of fees.



Sec. 518.15  Public interest.

    Public interest is official information that sheds light on an 
agency's performance of its statutory duties because the information 
falls within the

[[Page 144]]

statutory purpose of the FOIA in informing citizens about what their 
government is doing. That statutory purpose, however, is not fostered by 
disclosure of information about private citizens that is accumulated in 
various governmental files that reveals little or nothing about an 
agency's or official's own conduct.



Sec. 518.16  Electronic data.

    Electronic data are those records and information which are created, 
stored, and retrievable by electronic means. This does not include 
computer software, which is the tool by which to create, store, or 
retrieve electronic data. See Sec. 518.10 (b)(2) and (c) for a 
discussion of computer software.



Sec. 518.17  Law enforcement investigation.

    An investigation conducted by a command or agency for law 
enforcement purposes relating to crime, waste, or fraud or for national 
security reasons. Such investigations may include gathering evidence for 
criminal prosecutions and for civil or regulatory proceedings.

                                 Policy



Sec. 518.18  Compliance with the FOIA.

    DoD personnel are expected to comply with the provisions of the FOIA 
and this Regulation in both letter and spirit. This strict adherence is 
necessary to provide uniformity in the implementation of the DoD FOIA 
Program and to create conditions that will promote public trust.



Sec. 518.19  Openness with the public.

    The Department of Defense shall conduct its activities in an open 
manner consistent with the need for security and adherence to other 
requirements of law and regulation. Records not specifically exempt from 
disclosure under the Act shall, upon request, be made readily accessible 
to the public in accordance with rules promulgated by competent 
authority, whether or not the Act is invoked.
    (a) Operations Security (OPSEC). DA officials who release records 
under the FOIA must also consider OPSEC. The Army implementing directive 
is AR 530-1. Section 518.53 of this publication gives the procedure for 
FOIA personnel and the IDA to follow when a FOIA request appears to 
involve OPSEC.
    (b) DA Form 4948-R. This form lists references and information 
frequently used for FOIA requests related to OPSEC. Persons who 
routinely deal with the public (by telephone or letter) on such requests 
should keep the form on their desks as a guide. DA Form 4948-R (Freedom 
of Information Act (FOIA)/Operations Security (OPSEC) Desk Top Guide) 
will be locally reproduced on 8\1/2\ x 11-inch paper. A copy for 
reproduction purposes is located at the back of this regulation. The 
name and telephone number of the command FOIA/OPSEC adviser will be 
entered on the form.



Sec. 518.20  Avoidance of procedural obstacles.

    DoD Components shall ensure that procedural matters do not 
unnecessarily impede a requester from obtaining DoD records promptly. 
Components shall provide assistance to requesters to help them 
understand and comply with procedures established by this regulation and 
any supplemental regulations published by the DoD Components.



Sec. 518.21  Prompt action on requests.

    When a member of the public complies with the procedures established 
in this part for obtaining DoD records, the request shall receive prompt 
attention; a reply shall be dispatched within 10 working days, unless a 
delay is authorized. When a Component has a significant number of 
requests, e.g., 10 or more, the requests shall be processed in order of 
receipt. However, this does not preclude a Component from completing 
action on a request which can be easily answered, regardless of its 
ranking within the order of receipt. A DoD Component may expedite action 
on a request regardless of its ranking within the order of receipt upon 
a showing of exceptional need or urgency. Exceptional need or urgency is 
determined at the discretion of the compliment processing the request.
    (a) The 10-day period prescribed for review of initial requests 
under the

[[Page 145]]

FOIA (5 U.S.C. 552(a)(6)) starts only when the request--
    (1) Is in writing.
    (2) Reasonably describes the record requested.
    (3) Is received by the proper official designated to answer the 
request (see appendix B to this part).
    (4) Meets the procedural requirements of this part (see 
Sec. 518.85(b)(9)).
    (b) All requests shall refer explicitly or implicitly to the Freedom 
of Information Act, to ensure their prompt recognition as FOIA actions.
    (c) Members of the public who make FOIA requests should carefully 
follow the guidance in this part. They should send requests to the 
office that has the desired record or to a specific agency FOIA official 
for referral. The Army Freedom of Information and Privacy Act Division, 
Information Systems Command, Attn: ASQNS-OF-F, room 1146, Hoffman 
Building I, Alexandria, VA 22331-0301 can supply correct addresses.
    (d) See Army Regulation 340-21 for Privacy Act procedures.

[56 FR 48932, Sept. 26, 1991, as amended at 56 FR 56010, Oct. 31, 1991]



Sec. 518.22  Use of exemptions.

    (a) It is the DoD policy to make records publicly available, unless 
they qualify for exemption under one or more of the nine exemptions. 
Components (IDA) may elect to make a discretionary release, however, a 
discretionary release is generally not appropriate for records exempt 
under exemptions 1, 3, 4, 6, and 7(c). Exemptions 4, 6, and 7(c) cannot 
be claimed when the requester is the submitter of the information.
    (b) Parts of a requested record may be exempt from disclosure under 
the FOIA. The proper DA official may delete exempt information and 
release the remainder to the requester. The proper official also has the 
discretion under the FOIA to release exempt information; he or she must 
exercise this discretion in a reasonable manner, within regulations. The 
excised copies shall reflect the denied information by means of 
Blackened areas, which are Sufficiently Blackened as to reveal no 
information. The best means to ensure illegibility is to cut out the 
information from a copy of the document and reproduce the appropriate 
pages. If the document is classified, all classification markings shall 
be lined through with a single black line, which still allows the 
marking to be read. The document shall then be stamped ``Unclassified''.

[56 FR 48932, Sept. 26, 1991, as amended at 56 FR 56010, Oct. 31, 1991]



Sec. 518.23  Public domain.

    Nonexempt records released under the authority of this part are 
considered to be in the public domain. Such records may also be made 
available in Components' reading rooms to facilitate public access. 
Exempt records released pursuant to this part or other statutory or 
regulatory authority, however, may be considered to be in the public 
domain only when their release constitutes a waiver of the FOIA 
exemption. When the release does not constitute such a waiver, such as 
when disclosure is made to a properly constituted advisory committee or 
to a Congressional Committee, the released records do not lose their 
exempt status. Also, while authority may exist to disclose records to 
individuals in their official capacity, the provisions of this part 
apply if the same individual seeks the records in a private or personal 
capacity.



Sec. 518.24  Creating a record.

    (a) A record must exist and be in the possession and control of the 
Department of Defense at the time of the search to be considered subject 
to this part and the FOIA. Mere possession of a record does not presume 
departmental control and such records, or identifiable portions thereof, 
would be referred to the originating Agency for direct response to the 
requester. There is no obligation to create not compile a record to 
satisfy an FOIA request. A DoD Component, however, may compile a new 
record when so doing would result in a more useful response to the 
requester, or be less burdensome to the agency than providing existing 
records, and the requester does not object. Cost of creating or 
compiling such a record may not be charged to the requester unless the 
fee for creating the record is equal to or less than the fee which

[[Page 146]]

would be charged for providing the existing record. Fee assessments 
shall be in accordance with subpart F of this part.
    (b) With respect to electronic data, the issue of whether records 
are actually created or merely extracted from an existing database is 
not always readily apparent. Consequently, when responding to FOIA 
requests for electronic data where creation of record, programming, or 
particular format are questionable, components should apply a standard 
of reasonableness. In other words, if the capability exists to respond 
to the request, and the effort would be a business as usual approach, 
then the request should be processed. However, the request need not be 
processed where the capability to respond does not exist without a 
significant expenditure of resources, thus not being a normal business 
as usual approach.
    (c) Requested records, or portions thereof, may be located at 
several Army offices. The official receiving the FOIA request will refer 
it to those other offices for a direct reply if--
    (1) The information must be reviewed for release under the FOIA; and
    (2) Assembling the information would interfere materially with DA 
operations at the site first receiving the request.

[56 FR 48932, Sept. 26, 1991, as amended at 56 FR 56010, Oct. 31, 1991]



Sec. 518.25  Description of requested record.

    (a) Identification of the record desired is the responsibility of 
the member of the public who requests a record. The requester must 
provide a description of the desired record, that enables the Government 
to locate the record with a reasonable amount of effort. The Act does 
not authorize ``fishing expeditions.'' When a DoD Component receives a 
request that does not ``reasonably describe'' the requested record, it 
shall notify the requester of the defect. The defect should be 
highlighted in a specificity letter, asking the requester to provide the 
type of information outlined below in Sec. 518.61(b) of this 
publication. Components are not obligated to act on the request until 
the requester responds to the specificity letter. When practicable, 
Components shall offer assistance to the requester in identifying the 
records sought and in reformulating the request to reduce the burden on 
the agency in complying with the Act. DA officials will reply to unclear 
requests by letter. The letter will--
    (1) Describe the defects in the request.
    (2) Explain the types of information in paragraph (b) of this 
section, and ask the requester for such information.
    (3) Explain that no action will be taken on the request until the 
requester replies to the letter.
    (b) The following guidelines are provided to deal with ``fishing 
expedition'' requests and are based on the principle of reasonable 
effort. Descriptive information about a record may be divided into two 
broad categories.
    (1) Category I is file-related and includes information such as type 
of record (for example, memorandum), title, index citation, subject 
area, date the record was created, and originator.
    (2) Category II is event-related and includes the circumstances that 
resulted in the record being created or the date and circumstances 
surrounding the event the record covers.
    (c) Generally, a record is not reasonably described unless the 
description contains sufficient Category I information to permit the 
conduct of an organized, nonrandom search based on the Component's 
filing arrangements and existing retrieval systems, or unless the record 
contains sufficient Category II information to permit inference of the 
Category I elements needed to conduct such a search.
    (d) The following guidelines deal with requests for personal 
records. Ordinarily, when personal identifiers are provided only in 
connection with a request for records concerning the requester, only 
records retrievable by personal identifiers need be searched. Search for 
such records may be conducted under Privacy Act procedures. No record 
may be denied that is releasable under the FOIA.
    (e) The above guidelines notwithstanding, the decision of the DoD 
Component concerning reasonableness of description must be based on 
knowledge of its files. If the description enables DoD Component 
personnel with

[[Page 147]]

reasonable effort, the description is adequate.



Sec. 518.26  Referrals.

    (a) A request received by a DoD Component having no records 
responsive to a request shall be referred routinely to another DoD 
Component, if the other Component confirms that it has the requested 
record, and this belief can be confirmed by the other DoD Component. In 
cases where the Component receiving the request has reason to believe 
that the existence or nonexistence of the record may in itself be 
classified, that Component will consult the DoD Component having 
cognizance over the record in question before referring the request. If 
the DoD Component that is consulted determines that the existence or 
nonexistence of the record is in itself classified, the requester shall 
be so notified by the DoD Component originally receiving the request, 
and no referral shall take place. Otherwise, the request shall be 
referred to the other DoD Component, and the requester shall be notified 
of any such referral. Any DoD Component receiving a request that has 
been misaddressed shall refer the request to the proper address and 
advise the requester. Within the Army, referrals will be made directly 
to offices that may have custody of requested records. If the office 
receiving the FOIA request does not know where the requested records are 
located, the request and an explanatory cover letter will be forwarded 
to The Army Freedom of Information and Privacy Act Division, Information 
Systems Command, Attn: ASQNS-OP-F, room 1146, Hoffman Building I, 
Alexandria, VA 22331-0301.
    (b) Whenever a record or a portion of a record is, after prior 
consultation, referred to another DoD Component or to a Government 
agency outside of the Department of Defense for a release determination 
and direct response, the requester shall be informed of the referral. 
Referred records shall only be identified to the extent consistent with 
security requirements.
    (c) A DoD Component shall refer an FOIA request for a classified 
record that it holds to another DoD Component or agency outside the 
Department of Defense, if the record originated in the other DoD 
Component or outside agency or if the classification is derivative. In 
this situation, provide the record and a release recommendation on the 
record with the referral action.
    (d) A DoD Component may also refer a request for a record that it 
originated to another DoD Component or agency when the record was 
created for the use of the other DoD Component or agency. The DoD 
Component or agency for which the record was created may have an equally 
valid interest in withholding the record as the DoD Component that 
created the record. In such situations, provide the record and a release 
recommendation on the record with the referral action. An example of 
such a situation is a request for audit reports prepared by the Defense 
Contract Audit Agency. These advisory reports are prepared for the use 
of contracting officers and their release to the audited contractor 
shall be at the discretion of the contracting officer. Any FOIA request 
shall be referred to the appropriate contracting officer and the 
requester shall be notified of the referral.
    (e) Within the Department of Defense, a Component shall ordinarily 
refer an FOIA request for a record that it holds, but that was 
originated by another DoD Component or that contains substantial 
information obtained from another DoD Component, to that Component for 
direct response, after direct coordination and obtaining concurrence 
from the Component. The requester then shall be notified of such 
referral. DoD Components shall not, in any case, release or deny such 
records without prior consultation with the other DoD Component.
    (f) DoD Components that receive referred requests shall answer them 
in accordance with the time limits established by the FOIA and this 
Regulation. Those time limits shall begin to run upon receipt of the 
referral by the official designated to respond.
    (g) Agencies outside the Department of Defense that are subject to 
the FOIA:
    (1) A Component may refer as FOIA request for any record that 
originated in an agency outside the DoD or that is based on information 
obtained from an outside agency to the agency for direct

[[Page 148]]

response to the requester after coordination with the outside agency, if 
that agency is subject to FOIA. Otherwise, the Component must respond to 
the request.
    (2) A DoD Component shall refer to the agency that provided the 
record any FOIA request for investigative, intelligence, or any other 
type of records that are on loan to the Department of Defense for a 
specific purpose, if the records are restricted from further release and 
so marked. However, if for investigative or intelligence purposes, the 
outside agency desires anonymity, a Component may only respond directly 
to the requester after coordination with the outside agency.
    (3) Notwithstanding anything to the contrary in Sec. 518.26, a 
Component shall notify requesters seeking National Security Council 
(NSC) or White House documents that they should write directly to the 
NSC or White House for such documents. DoD documents in which the NSC or 
White House has a concurrent reviewing interest shall be forwarded to 
the Office of the Assistant Secretary of Defense (Public Affairs) 
(OASD(PA)), Attn: Directorate For Freedom of Information and Security 
Review (DFOISR), which shall effect coordination with the NSC or White 
House, and return the documents to the originating agency after NSC 
review and determination. NSC or White House documents discovered in 
Components' files which are responsive to the FOIA request shall be 
forwarded to OASD(PA), Attn: DFOISR, for subsequent coordination with 
the NSC or White House, and returned to the Component with a release 
determination.
    (h) To the extent referrals are consistent with the policies 
expressed by this paragraph, referrals between offices of the same DoD 
Component are authorized.
    (i) On occasion, the Department of Defense receives FOIA requests 
for General Accounting Office (GAO) documents containing DoD 
information. Even though the GAO is outside the Executive Branch, and 
not subject to the FOIA, all FOIA requests for GAO documents containing 
DoD information received either from the public, or on referral from the 
GAO, will be processed under the provisions of the FOIA. In DA, requests 
received for GAO documents that contain classified Army information will 
be handled by the Army Inspector General's Office.



Sec. 518.27  Authentication.

    Records provided under this part shall be authenticated with an 
appropriate seal, whenever necessary, to fulfill an official Government 
or other legal function. This service, however, is in addition to that 
required under the FOIA and is not included in the FOIA fee schedule. 
DoD Components may charge for the service at a rate of $5.20 for each 
authentication.



Sec. 518.28  Unified and specified commands.

    (a) The Unified Commands are placed under the jurisdiction of the 
OSD, instead of the administering Military Department, only for the 
purpose of administering the DoD FOIA Program. This policy represents an 
exception to the policies directed in DoD Directive 5100.3 (reference 
(f)); it authorizes and requires the Unified Commands to process Freedom 
of Information (FOI) requests in accordance with DoD Directive 5400.7 
(reference (b)) and this Regulation. The Unified Commands shall forward 
directly to the OASD(PA), all correspondence associated with the appeal 
of an initial denial for records under the provisions of the FOIA. 
Procedures to effect this administrative requirement are outlined in 
appendix A. For Army components of unified commands, if the requested 
records are joint documents, process the FOIA request through unified 
command channels. If the requested documents are Army-unique, process 
the FOIA request through Army channels.
    (b) The Specified Commands remain under the jurisdiction of the 
administering Military Department. The Commands shall designate IDAs 
within their headquarters; however, the appellate authority shall reside 
with the Military Department.



Sec. 518.29  Relationship between the FOIA and the Privacy Act (PA).

    Not all requesters are knowledgeable of the appropriate statutory 
authority to cite when requesting records. In some instances, they may 
cite neither

[[Page 149]]

Act, but will imply one or both Acts. For these reasons, the following 
guidelines are provided to ensure that requesters receive the greatest 
amount of access rights under both Acts:
    (a) Requesters who seek records about themselves contained in a PA 
system of records and who cite or imply the PA, will have their requests 
processed under the provisions of the PA.
    (b) Requesters who seek records about themselves which are not 
contained in a PA system of records and who cite or imply the PA, will 
have their requests processed under the provisions of the FOIA, since 
they have no access under the PA.
    (c) Requesters who seek records about themselves which are contained 
in a PA system of records and who cite or imply the FOIA or both Acts 
will have their requests processed under the time limits of the FOIA and 
the exemptions and fees of the PA. This is appropriate since greater 
access will be received under the PA.
    (d) Requesters who seek access to agency records and who cite or 
imply the PA and FOIA, will have their requests processed under the 
FOIA.
    (e) Requesters who seek access to agency records and who cite or 
imply the FOIA, will have their requests processed under the FOIA.
    (f) Requesters should be advised in final responses why their 
request was processed under a particular Act.

[56 FR 48932, Sept. 26, 1991, as amended at 56 FR 56010, Oct. 31, 1991]



Sec. 518.30  Records management.

    FOIA records shall be maintained and disposed of in accordance with 
DoD Component Disposition instructions and schedules. See AR 25-400-2. 
AR 25-1 contains Army policy for records management requirements in the 
life cycle management of information. Information access and release, to 
include potential electronic access by the public, will be considered 
during information systems design.



                      Subpart B--FOIA Reading Rooms

                              Requirements



Sec. 518.31  Reading room.

    Each Component shall provide an appropriate facility or facilities 
where the public may inspect and copy or have copied the materials 
described below. In addition to the materials described below, 
Components may elect to place other documents in their reading room as a 
means to provide public access to such documents. DoD Components may 
share reading room facilities if the public is not unduly 
inconvenienced. When appropriate, the cost of copying may be imposed on 
the person requesting the material in accordance with the provisions of 
subpart F of this part. The Army FOIA Reading Room is operated by The 
Freedom of Information and Privacy Act Division, Information Systems 
Command. It is located in room 1146, Hoffman Building I, 2461 Eisenhower 
Avenue, Alexandria, VA 22331-0301. It is open from 0800 to 1530 Monday 
through Friday, except holidays.



Sec. 518.32  Material availability.

    The FOIA requires that so-called ``(a)(2)'' materials shall be made 
available in the FOIA reading room for inspection and copying, unless 
such materials are published and copies are offered for sale. 
Identifying details that, if revealed, would create a clearly 
unwarranted invasion of personal privacy may be deleted from ``(a)(2)'' 
materials made available for inspection and copying. In every case, 
justification for the deletion must be fully explained in writing. 
However, a DoD Component may publish in the Federal Register a 
description of the basis upon which it will delete identifying details 
of particular types of documents to avoid clearly unwarranted invasions 
of privacy. In appropriate cases, the DoD Component may refer to this 
description rather than write a separate justification for each 
deletion. So-called ``(a)(2)'' materials are:

[[Page 150]]

    (a) Final opinions, including concurring and dissenting opinions, 
and orders made in the adjudication of cases, as defined in 5 U.S.C. 551 
(reference (g)), that may be cited, used, or relied upon as precedents 
in future adjudications.
    (b) Statements of policy and interpretations that have been adopted 
by the agency and are not published in the Federal Register.
    (c) Administrative staff manuals and instructions, or portions 
thereof, that establish DoD policy or interpretations of policy that 
affect a member of the public. This provision does not apply to 
instructions for employees on tactics and techniques to be used in 
performing their duties, or to instructions relating only to the 
internal management of the DoD Component. Examples of manuals and 
instructions not normally made available are:
    (1) Those issued for audit, investigation, and inspection purposes, 
or those that prescribe operational tactics, standards of performance, 
or criteria for defense, prosecution, or settlement of cases.
    (2) Operations and maintenance manuals and technical information 
concerning munitions, equipment, systems, and foreign intelligence 
operations.

                                 Indexes



Sec. 518.33  ``(a)(2)'' materials.

    (a) Each DoD Component shall maintain in each facility prescribed in 
Sec. 518.31, an index of materials described in Sec. 518.4, that are 
issued, adopted, or promulgated, after July 4, 1967. No ``(a)(2)'' 
materials issued, promulgated, or adopted after July 4, 1967 that are 
not indexed and either made available or published may be relied upon, 
used or cited as precedent against any individual unless such individual 
has actual and timely notice of the contents of such materials. Such 
materials issued, promulgated, or adopted before July 4, 1967, need not 
be indexed, but must be made available upon request if not exempted 
under this Regulation.
    (b) Each DoD Component shall promptly publish quarterly or more 
frequently, and distribute, by sale or otherwise, copies of each index 
of ``(a)(2)'' materials or supplements thereto unless it publishes in 
the Federal Register an order containing a determination that 
publication is unnecessary and impracticable. A copy of each index or 
supplement not published shall be provided to a requester at a cost not 
to exceed the direct cost of duplication as set forth in subpart F.
    (c) Each index of ``(a)(2)'' materials or supplement thereto shall 
be arranged topically or by descriptive words rather than by case name 
or numbering system so that members of the public can readily locate 
material. Case name and numbering arrangements, however, may also be 
included for DoD Component convenience.



Sec. 518.34  Other materials.

    (a) Any available index of DoD Component material published in the 
Federal Register, such as material required to be published by section 
552(a)(1) of the FOIA, shall be made available in DoD Component FOIA 
reading rooms. Army ``(a)(2)'' materials are published in DA Pam 25-30.
    (b) Although not required to be made available in response to FOIA 
requests or made available in FOIA Reading Rooms, ``(a)(1)'' materials 
shall, when feasible, be made available in FOIA reading rooms for 
inspection and copying. Examples of ``(a)(1)'' materials are: 
descriptions of an agency's central and field organization, and to the 
extent they affect the public, rules of procedures, descriptions of 
forms available, instruction as to the scope and contents of papers, 
reports, or examinations, and any amendment, revision, or report of the 
aforementioned.



                          Subpart C--Exemptions

                           General Provisions



Sec. 518.35  General.

    Records that meet the exemption criteria in the exemption part of 
subpart C may be withheld from public disclosure and need not be 
published in the Federal Register, made available in a library reading 
room, or provided in response to an FOIA request.

[[Page 151]]



Sec. 518.36  Jeopardy of government interest.

    An exempted record, other than those being withheld pursuant to 
Exemptions 1, 3 or 6, shall be made available upon the request of any 
individual when, in the judgment of the releasing DoD Component or 
higher authority, no jeopardy to government interest would be served by 
release. It is appropriate for DoD Components to use their discretionary 
authority on a case-by-case basis in the release of given records. If a 
DoD Component determines that a record requested under the FOIA meets 
the Exemption 4 withholding criteria set forth in this publication, the 
DoD Component shall not ordinarily exercise its discretionary power to 
release, absent circumstances in which a compelling public interest will 
be served by release of that record. Further guidance on this issue may 
be found in Sec. 518.37, Number 4. and Sec. 518.65.

                               Exemptions



Sec. 518.37  FOIA exemptions.

    The following types of records may be withheld by the IDA in whole 
or in part from public disclosure under the FOIA, unless otherwise 
prescribed by law. A discretionary release (also see Sec. 518.23) to one 
requester may preclude the withholding of the same record under a FOIA 
exemption if the record is subsequently requested by someone else. In 
applying exemptions, the identity of the requester and the purpose for 
which the record is sought are irrelevant with the exception that an 
exemption may not be invoked where the particular interest to be 
protected is the requester's privacy interest.
    (a) Number 1. Those properly and currently classified in the 
interest of national defense or foreign policy, as specifically 
authorized under the criteria established by executive order and 
implemented by regulations, such as DoD 5200.1-R (reference h). Although 
material is not classified at the time of the FOIA request, a 
classification review may be undertaken to determine whether the 
information should be classified. The procedures in Sec. 518.53(c)(4) 
apply. In addition, this exemption shall be invoked when the following 
situations are apparent:
    (1) The fact of the existence or nonexistence of a record would 
itself reveal classified information. In this situation, Components 
shall neither confirm nor deny the existence or nonexistence of the 
record being requested. A ``refusal to confirm or deny'' response must 
be used consistently, not only when a record exists, but also when a 
record does not exist. Otherwise, the pattern of using a ``no record'' 
response when a record does not exist, and a ``refusal to confirm or 
deny'' when a record does exist will itself disclose national security 
information.
    (2) Information that concerns one or more of the classification 
categories established by executive order and DoD 5200.1-R (reference 
(h)) shall be classified if its unauthorized disclosure, either by 
itself or in the context of other information, reasonably could be 
expected to cause damage to the national security.
    (b) Number 2. Those related solely to the internal personnel rules 
and practices of DoD or any of its Components. This exemption has two 
profiles, high b2 and low b2.
    (1) Records qualifying under high b2 are those containing or 
constituting statitutes, rules, regulations, orders, manuals, 
directives, and instructions the release of which would allow 
circumvention of these records thereby substantially hindering the 
effective performance of a significant function of the DoD. Examples 
include:
    (i) Those operating rules, guidelines, and manuals for DoD 
investigators, inspectors, auditors, or examiners that must remain 
privileged in order for the DoD Component to fulfill a legal 
requirement.
    (ii) Personnel and other administrative matters, such as examination 
questions and answers used in training courses or in the determination 
of the qualification of candidates for employment, entrance on duty, 
advancement, or promotion.
    (iii) Computer software meeting the standards of Sec. 518.10(c), the 
release of which would allow circumvention of statute or DoD rules, 
regulations, orders, directives, or instructions. In this situation, the 
use of the software must

[[Page 152]]

be closely examined to ensure a circumvention possibility exists.
    (2) Records qualifying under the low b2 profile are those that are 
trivial and housekeeping in nature for which there is no legitimate 
public interest or benefit to be gained by release, and it would 
constitute an administrative burden to process the request in order to 
disclose these records. Examples include: Rules of personnel's use of 
parking facilities or regulation of lunch hours, statements of policy as 
to sick leave, and trivial administrative data such as file numbers, 
mail routing stamps, initials, data processing notations, brief 
references to previous communications, and other like administrative 
markings.
    (3) Negotiation and bargaining techniques, practices, and 
limitations.
    (c) Number 3. Those concerning matters that a statute specifically 
exempts from disclosure by terms that permit no discretion on the issue, 
or in accordance with criteria established by that statute for 
withholding or referring to particular types of matters to be withheld. 
Examples of statutes are:
    (1) National Security Agency Information Exemption, Pub. L. 86-36, 
Section 6 (reference (c)).
    (2) Patent Secrecy, 35 U.S.C. 181-188 (reference (i)). Any records 
containing information relating to inventions that are the subject of 
patent applications on which Patent Secrecy Orders have been issued.
    (3) Restricted Data and Formerly Restricted Data, 42 U.S.C. 2162 
(reference (j)).
    (4) Communication Intelligence, 18 U.S.C. 798 (reference (k)).
    (5) Authority to Withhold From Public Disclosure Certain Technical 
Data, 10 U.S.C. 130 and DoD Directive 5230.25 (reference (w) and (aa)).
    (6) Confidentiality of Medical Quality Records: Qualified Immunity 
Participants, 10 U.S.C. 1102 (reference (cc)).
    (7) Physical Protection of Special Nuclear Material: Limitation on 
Dissemination of Unclassified Information, 10 U.S.C. 128 (reference ii).
    (8) Protection of Intelligence Sources and Methods, 50 U.S.C. 
403(d)(3).
    (d) Number 4. Those containing trade secrets or commercial or 
financial information that a DoD Component receives from a person or 
organization outside the Government with the understanding that the 
information or record will be retained on a privileged or confidential 
basis in accordance with the customary handling of such records. Records 
within the exemption must contain trade secrets, or commercial or 
financial records, the disclosure of which is likely to cause 
substantial harm to the competitive position of the source providing the 
information; impair the Government's ability to obtain necessary 
information in the future; or impair some other legitimate government 
interest. Examples include records that contain:
    (1) Commercial or financial information received in confidence in 
connection with loans, bids, contracts, or proposals, as well as other 
information received in confidence or privileged, such as trade secrets, 
inventions, discoveries, or other proprietary data. See Public Law 101-
189, National Defense Authorization Act, November 1989, 103 Stat. 1352 
(Sec. 518.1(k)).
    (2) Statistical data and commercial or financial information 
concerning contract performance, income, profits, losses, and 
expenditures, if offered and received in confidence from a contractor or 
potential contractor.
    (3) Personal statements given in the course of inspections, 
investigations, or audits, when such statements are received in 
confidence from the individual and retained in confidence because they 
reveal trade secrets or commercial or financial information normally 
considered confidential or privileged.
    (4) Financial data provided in confidence by private employers in 
connection with locality wage surveys that are used to fix and adjust 
pay schedules applicable to the prevailing wage rate of employees within 
the Department of Defense.
    (5) Scientific and manufacturing processes or developments 
concerning technical or scientific data or other information submitted 
with an application for a research grant, or with a report while 
research is in progress.
    (6) Technical or scientific data developed by a contractor or 
subcontractor exclusively at private expense, and technical or 
scientific data developed

[[Page 153]]

in part with Federal funds and in part at private expense, wherein the 
contractor or subcontractor has retained legitimate proprietary 
interests in such data in accordance with 10 U.S.C. 2320-2321 and DoD 
Federal Acquisition Regulation Supplement (DFARS), subpart 227.4 
(references (aa) and (cc)). Technical data developed exclusively with 
Federal funds may be withheld under Exemption Number 3 if it meets the 
criteria of 10 U.S.C. 130 and DoD Directive 5230.25 (reference (v)) (see 
Sec. 518.37(e)).
    (7) Computer software meeting the conditions of section 518.10(c), 
which is copyrighted under the Copyright Act of 1976 (17 U.S.C. 106), 
the disclosure of which would have an adverse impact on the potential 
market value of a copyrighted work.
    (e) Number 5. Except as provided in paragraphs (e)(2) through (5) of 
this section, internal advice, recommendations, and subjective 
evaluations, as contrasted with factual matters, that are reflected in 
records pertaining to the decision-making process of an agency, whether 
within or among agencies (as defined in 5 U.S.C. 552(e) (reference (a)), 
or within or among DoD Components. Also exempted are records pertaining 
to the attorney-client privilege and the attorney work-product 
privilege.
    (1) Examples include:
    (i) The nonfactual portions of staff papers, to include after-action 
reports and situation reports containing staff evaluations, advice, 
opinions or suggestions.
    (ii) Advice, suggestions, or evaluations prepared on behalf of the 
Department of Defense by individual consultants or by boards, 
committees, councils, groups, panels, conferences, commissions, task 
forces, or other similar groups that are formed for the purpose of 
obtaining advice and recommendations.
    (iii) Those nonfactual portions of evaluations by DoD Component 
personnel of contractors and their products.
    (iv) Information of a speculative, tentative, or evaluative nature 
or such matters as proposed plans to procure, lease or otherwise acquire 
and dispose of materials, real estate, facilities or functions, when 
such information would provide undue or unfair competitive advantage to 
private personal interests or would impede legitimate Government 
functions.
    (v) Trade secret or other confidential research development, or 
commercial information owned by the Government, where premature release 
is likely to affect the Government's negotiating position or other 
commercial interests.
    (vi) Records that are exchanged among agency personnel and within 
and among DoD Components or agencies as part of the preparation for 
anticipated administrative proceeding by an agency or litigation before 
any Federal, State, or military court, as well as records that qualify 
for the attorney-client privilege.
    (vii) Those portions of official reports of inspection, reports of 
the Inspector Generals, audits, investigations, or surveys pertaining to 
safety, security, or the internal management, administration, or 
operation of one or more DoD Components, when these records have 
traditionally been treated by the courts as privileged against 
disclosure in litigation.
    (viii) Computer software meeting the standards of Sec. 518.10(c), 
which is deliberative in nature, the disclosure of which would inhibit 
or chill the decision making process. In this situation, the use of 
software must be closely examined to ensure its deliberative nature.
    (ix) Planning, programming, and budgetary information which is 
involved in the defense planning and resource allocation process (see 
reference (kk)).
    (2) If any such intra or interagency record or reasonably segregable 
portion of such record hypothetically would be made available routinely 
through the ``discovery process'' in the course of litigation with the 
agency, i.e., the process by which litigants obtain information from 
each other that is relevant to the issues in a trial or hearing, then it 
should not be withheld from the general public even though discovery has 
not been sought in actual litigation. If, however, the information 
hypothetically would only be made available through the discovery 
process by special order of the court based on

[[Page 154]]

the particular needs of a litigant, balanced against the interest of the 
agency in maintaining its confidentiality, then the record or document 
need not be made available under this Regulation. Consult with legal 
counsel to determine whether exemption 5 material would be routinely 
made available through the discovery process.
    (3) Intra or interagency memoranda or letters that are factual, or 
those reasonably segregable portions that are factual, are routinely 
made available through ``discovery,'' and shall be made available to a 
requester, unless the factual material is otherwise exempt from release, 
inextricably intertwined with the exempt information, so fragmented as 
to be uninformative, or so redundant of information already available to 
the requester as to provide no new substantive information.
    (4) A direction or order from a superior to a subordinate, though 
contained in an internal communication, generally cannot be withheld 
from a requester if it constitutes policy guidance or a decision, as 
distinguished from a discussion of preliminary matters or a request for 
information or advice that would compromise the decision-making process.
    (5) An internal communication concerning a decision that 
subsequently has been made a matter of public record must be made 
available to a requester when the rationale for the decision is 
expressly adopted or referenced in the record containing the decision.
    (f) Number 6. Information in personnel and medical files, as well as 
similar personal information in other files, that, if disclosed to the 
requester would result in a clearly unwarranted invasion of personal 
privacy. Release of information about an individual contained in a 
Privacy Act System of records that would constitute a clearly 
unwarranted invasion of privacy is prohibited, and could subject the 
releaser to civil and criminal penalties.
    (1) Examples of other files containing personal information similar 
to that contained in personnel and medical files include:
    (i) Those compiled to evaluate or adjudicate the suitability of 
candidates for civilian employment or membership in the Armed Forces, 
and the eligibility of individuals (civilian, military, or contractor 
employees) for security clearances, or for access to particularly 
sensitive classified information.
    (ii) Files containing reports, records, and other material 
pertaining to personnel matters in which administratve action, including 
disciplinary action, may be taken.
    (2) Home addresses are normally not releasable without the consent 
of the individuals concerned. In addition, the release of lists of DoD 
military and civilian personnel's names and duty addresses who are 
assigned to units that are sensitive, routinely deployable, or stationed 
in foreign territories can constitute a clearly unwarranted invasion of 
personal privacy.
    (i) A privacy interest may exist in personal information even though 
the information has been disclosed at some place and time. If personal 
information is not freely available from sources other than the Federal 
Government a privacy interest exists in its nondisclosure. The fact that 
the Government expended funds to prepare, index and maintain records on 
personal information, and the fact that a requester invokes FOIA to 
obtain these records indicated the information is not freely available.
    (ii) Published telephone directories, organizational charts, rosters 
and similar materials for personnel assigned to units that are 
sensitive, routinely deployable, or stationed in foreign territories are 
withholdable under this exemption.
    (3) This exemption shall not be used in an attempt to protect the 
privacy of a deceased person, but it may be used to protect the privacy 
of the deceased person's family.
    (4) Individuals' personnel, medical, or similar file may be withheld 
from them or their designated legal representative only to the extent 
consistent with DoD Directive 5400.11 (reference (d)).
    (5) A clearly unwarranted invasion of the privacy of the persons 
indentified in a personnel, medical or similar record may constitute a 
basis for deleting those reasonably segregable portions of that record, 
even when providing it to the subject of the record.

[[Page 155]]

When withholding personal information from the subject record, legal 
counsel should first be consulted.
    (6) Requests for access to or release of records, before appellate 
review, of courts-martial or special courts-martial involving a bad 
conduct discharge should be addressed as in appendix B, paragraph 5. 
This guidance does not preclude furnishing records of a trial to an 
accused.
    (g) Number 7. Records or information compiled for law enforcement 
purposes; i.e., civil, criminal, or military law, including the 
implementation of executive orders or regulations issued pursuant to 
law. This exemption also applies to law enforcement investigations such 
as Inspector General investigations. This exemption may be invoked to 
prevent disclosure of documents not originally created for, but later 
gathered for law enforcement purposes.
    (1) This exemption applies, however, only to the extent that 
production of such law enforcement records or information could result 
in the following:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings.
    (ii) Would deprive a person of the right to a fair trial or to an 
impartial adjudication.
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy of a living person, including surviving 
family members of an individual identified in such a record.
    (A) This exemption also applies when the fact of the existence or 
nonexistence of a responsive record would itself reveal personally 
private information, and the public interest in disclosure is not 
sufficient to outweigh the privacy interest. In this situation, 
Components shall neither confirm nor deny the existence or nonexistence 
of the record being requested.
    (B) A ``refusal to confirm or deny'' response must be used 
consistently, not only when a record exists, but also when a record does 
not exist. Otherwise, the pattern of using a ``no records'' response 
when a record does not exist and a ``refusal to confirm or deny'' when a 
record does exist will itself disclose personally private information.
    (C) Refusal to confirm or deny should not be used when (1) the 
person whose personal privacy is in jeopardy has provided the requester 
with a waiver of his or her privacy rights; or (2) the person whose 
personal privacy is in jeopardy is decreased, and the agency is aware of 
the fact.
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a source within the Department of 
Defense, a State, local, or foreign agency or authority, or any private 
institution which furnishes the information on a confidential basis.
    (v) Could disclose information furnished from a confidential source 
and obtained by a criminal law enforcement authority in a criminal 
investigation or by an agency conducting a lawful national security 
intelligence investigation.
    (vi) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law.
    (vii) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (2) Examples include:
    (i) Statements of witnesses and other material developed during the 
course of the investigation and all materials prepared in connection 
with related government litigation or adjudicative proceedings.
    (ii) The identity of firms or individuals being investigated for 
alleged irregularities involving contracting with the Department of 
Defense (Army) when no indictment has been obtained nor any civil action 
filed against them by the United States.
    (iii) Information obtained in confidence, expressed or implied, in 
the course of a criminal investigation by a criminal law enforcement 
agency or office within a DoD Component, or a lawful national security 
intelligence investigation conducted by an authorized

[[Page 156]]

agency or office within a DoD Component. National security intelligence 
investigations include background security investigations and those 
investigations conducted for the purpose of obtaining affirmative or 
counterintelligence information.
    (3) The right of individual litigants to investigative records 
currently available by law (such as, the Jencks Act, 18 U.S.C. 3500, 
reference (l)) is not diminished.
    (4) When the subject of an investigative record is the requester of 
the record, it may be withheld only as authorized by DoD Directive 
5400.11 (reference (d)). The Army implementing directive is AR 340-21.
    (5) Exclusions. Excluded from the above exemption are the following 
two situations applicable to the Department of Defense:
    (i) Whenever a request is made which involves access to records or 
information compiled for law enforcement purposes, and the investigation 
or proceeding involves a possible violation of criminal law where there 
is reason to believe that the subject of the investigation or proceeding 
is unaware of its pendency, and the disclosure of the existence of the 
records could reasonably be expected to interfere with enforcement 
proceedings, Components may, during only such times as that circumstance 
continues, treat the records or information as not subject to the FOIA. 
In such situation, the response to the requester will state that no 
records were found.
    (ii) Whenever informant records maintained by a criminal law 
enforcement organization within a DoD Component under the informant's 
name or personal identifier are requested by a third party using the 
informant's name or personal identifier, the Component may treat the 
records as not subject to the FOIA, unless the informant's status as an 
informant has been officially confirmed. If it is determined that the 
records are not subject to the FOIA, the response to the requester will 
state that no records were found.
    (h) Number 8. Those contained in or related to examination, 
operation or condition reports prepared by, on behalf of, or for the use 
of any agency responsible for the regulation or supervision of financial 
institutions.
    (i) Number 9. Those containing geological and geophysical 
information and data (including maps) concerning wells.

[56 FR 48932, Sept. 26, 1991, as amended at 56 FR 56010, Oct. 31, 1991]



                    Subpart D--For Official Use Only

                           General Provisions



Sec. 518.38  General.

    Information that has not been given a security classification 
pursuant to the criteria of an Executive Order, but which may be 
withheld from the public for one or more of the reasons cited in FOIA 
exemptions 2 through 9 shall be considered as being for official use 
only. No other material shall be considered or marked ``For Official Use 
Only'' (FOUO), and FOUO is not authorized as an anemic form of 
classification to protect national security interests.



Sec. 518.39  Prior FOUO application.

    The prior application of FOUO markings is not a conclusive basis for 
withholding a record that is requested under the FOIA. When such a 
record is requested, the information in it shall be evaluated to 
determine whether, under current circumstances, FOIA exemptions apply in 
withholding the record or portions of it. If any exemption or exemptions 
apply or applies, it may nonetheless be released when it is determined 
that no governmental interest will be jeopardized by its release.



Sec. 518.40  Historical papers.

    Records such as notes, working papers, and drafts retained as 
historical evidence of DoD Component actions enjoy no special status 
apart from the exemptions under the FOIA (reference (a)).



Sec. 518.41  Time to mark records.

    The marking of records at the time of their creation provides notice 
of FOUO content and facilitates review when a record is requested under 
the FOIA. Records requested under the

[[Page 157]]

FOIA that do not bear such markings, shall not be assumed to be 
releasable without examination for the presence of information that 
requires continued protection and qualifies as exempt from public 
release.



Sec. 518.42  Distribution statement.

    Information in a technical document that requires a distribution 
statement pursuant to DoD Directive 5230.24 (reference (m)), shall bear 
that statement and may be marked FOUO as appropriate.



Sec. 518.43  Location of markings.

    (a) An unclassified document containing FOUO information shall be 
marked ``For Official Use Only'' in bold letters at least \3/16\ of an 
inch high at the bottom on the outside of the front cover (if any), one 
each page containing FOUO information, and on the outside of the back 
cover (if any).
    (b) Within a classified document, an individual page that contains 
both FOUO and classified information shall be marked at the top and 
bottom with the highest security classification of information appearing 
on the page.
    (c) Within a classified document, an individual page that contains 
FOUO information but no classified information shall be marked ``For 
Official Use Only'' at the bottom of the page. The paragraphs containing 
the ``For Official Use Only'' information should also be marked with the 
initials FOUO.
    (d) Other records, such as, photographs, films, tapes, or slides, 
shall be marked ``For Official Use Only'' or ``FOUO'' in a manner that 
ensures that a recipient or viewer is aware of the status of the 
information therein. Markings on microform will conform to the 
requirements of paragraphs (b) and (c) of this section. As a minimum, 
each frame of a microform containing FOUO information will be marked 
``FOR OFFICIAL USE ONLY'' at the bottom center of the appropriate page 
or frame. Classified or protective markings placed by a software program 
at both top and bottom of a page or frame of a computer-generated report 
are acceptable. Storage media (disk packs or magnetic tapes) containing 
personal information subject to the Privacy Act will be labeled ``FOR 
OFFICIAL USE ONLY-Privacy Act Information.''
    (e) FOUO material transmitted outside the Department of Defense 
requires application of an expanded marking to explain the significance 
of the FOUO marking. This may be accomplished by typing or stamping the 
following statement on the record prior to transfer: ``This document 
contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA. 
Exemptions * * * apply.''
    (f) Permanently bound volumes need to be marked only on the outside 
of the front and back covers, title page, and first and last pages. 
Volumes stapled by office-type hand or electric staples are not 
considered permanently bound.

                     Dissemination and Transmission



Sec. 518.44  Release and transmission procedures.

    Until FOUO status is terminated, the release and transmission 
instructions that follow apply:
    (a) FOUO information may be disseminated within DoD Components and 
between officials of DoD Components and DoD contractors, consultants, 
and grantees to conduct official business for the Department of Defense. 
Recipients shall be made aware of the status of such information, and 
transmission shall be by means that preclude unauthorized public 
disclosure. Transmittal documents shall call attention to the presence 
of FOUO attachments.
    (b) DoD holders of FOUO information are authorized to convey such 
information to officials in other departments and agencies of the 
executive and judicial branches to fulfill a government function, except 
to the extent prohibited by the Privacy Act. Records thus transmitted 
shall be marked ``For Official Use Only,'' and the recipient shall be 
advised that the information has been exempted from public disclosure, 
pursuant to the FOIA, and that special handling instructions do or do 
not apply.
    (c) Release of FOUO information to Members of Congress is governed 
by DoD Directive 5400.4 (reference (n)). Army implementing instructions 
are in Sec. 518.52 and in AR 1-20. Release to the GAO is governed by DoD 
Directive

[[Page 158]]

7650.1 (reference (o)). Records released to the Congress or GAO should 
be reviewed to determine whether the information warrants FOUO status. 
If not, prior FOUO markings shall be removed or effaced. If withholding 
criteria are met, the records shall be marked FOUO and the recipient 
provided an explanation for such exemption and marking. Alternatively, 
the recipient may be requested, without marking the record, to protect 
against its public disclosure for reasons that are explained.



Sec. 518.45  Transporting FOUO information.

    Records containing FOUO information shall be transported in a manner 
that precludes disclosure of the contents. When not commingled with 
classified information, FOUO information may be sent via first-class 
mail or parcel post. Bulky shipments, such as distributions of FOUO 
Directives or testing materials, that otherwise qualify under postal 
regulations may be sent by fourth-class mail. When material marked FOUO 
is removed from storage, attach DA Label 87 (For Official Use Only Cover 
Sheet).



Sec. 518.46  Electrically transmitted messages.

    Each part of electrically transmitted messages containing FOUO 
information shall be marked appropriately. Unclassified messages 
containing FOUO information shall contain the abbreviation ``FOUO'' 
before the beginning of the text. Such messages shall be transmitted in 
accordance with communications security procedures in ACP[EN]121 (U.S. 
Supp 1) (reference (p)) for FOUO information. Army follows the 
procedures in AR 25-11.



Sec. 518.47  Telephone usage.

    (a) FOUO information may be discussed over the telephone lines with 
DoD, other Government agencies, and Government support contractors for 
official purposes.
    (b) Facsimile communications marked FOUO may be transmitted by 
nonsecure terminals with the FOUO markings intact between U.S. DoD, 
other U.S. Government agencies, and U.S. Government support contractors 
for official purposes.

                      Safeguarding FOUO Information



Sec. 518.48  During duty hours.

    During normal working hours, records determined to be FOUO shall be 
placed in an out-of-sight location if the work area is accessible to 
non-governmental personnel. When material marked FOUO is removed from 
storage, attach DA Label 87.



Sec. 518.49  During nonduty hours.

    At the close of business, FOUO records shall be stored so as to 
preclude unauthorized access. Filing such material with other 
unclassified records in unlocked files or desks, etc., is adequate when 
normal U.S. Government or government-contractor internal building 
security is provided during nonduty hours. When such internal security 
control is not exercised, locked buildings or rooms normally provide 
adequate after-hours protection. If such protection is not considered 
adequate, FOUO material shall be stored in locked receptacles such as 
file cabinets, desks, or bookcases. FOUO records that are subject to the 
provisions of Public Law 86-36 (reference (c)) shall meet the safeguards 
outlined for that group of records. Army personnel handling National 
Security Agency (NSA) records will follow NSA instructions on storing 
and safeguarding those records.

           Termination, Disposal and Unauthorized Disclosures



Sec. 518.50  Termination.

    The originator or other competent authority, e.g., initial denial 
and appellate authorities, shall terminate ``For Official Use Only'' 
markings or status when circumstances indicate that the information no 
longer requires protection from public disclosure. When FOUO status is 
terminated, all known holders shall be notified, to the extent 
practical. Upon notification, holders shall efface or remove the ``For 
Official Use Only'' markings, but records in file

[[Page 159]]

or storage need not be retrieved solely for that purpose.

[56 FR 48932, Sept. 26, 1991; 56 FR 56010, Oct. 31, 1991]



Sec. 518.51  Disposal.

    (a) Nonrecord copies of FOUO materials may be destroyed by tearing 
each copy into pieces to preclude reconstructing, and placing them in 
regular trash containers. When local circumstances or experience 
indicates that this destruction method is not sufficiently protective of 
FOUO information, local authorities may direct other methods but must 
give due consideration to the additional expense balanced against the 
degree of sensitivity of the type of FOUO information contained in the 
records.
    (b) Record copies of FOUO documents shall be disposed of in 
accordance with the disposal standards established under 44 U.S.C. 
chapter 33 (reference (q)), as implemented by DoD Component instructions 
concerning records disposal. Army implementing disposition instructions 
are in AR 5-400-2.



Sec. 518.52  Unauthorized disclosure.

    The unauthorized disclosure of FOUO records does not constitute an 
unauthorized disclosure of DoD information classified for security 
purposes. Appropriate administrative action shall be taken, however, to 
fix responsibility for unauthorized disclosure whenever feasible, and 
appropriate disciplinary action shall be taken against those 
responsible. Unauthorized disclosure of FOUO information that is 
protected by the Privacy Act (reference (gg)) may also result in civil 
and criminal sanctions against responsible persons. The DoD Component 
that originated the FOUO information shall be informed of its 
unauthorized disclosure.



              Subpart E--Release and Processing Procedures

                           General Provisions



Sec. 518.53  Public information.

    (a) Since the policy of the Department of Defense is to make the 
maximum amount of information available to the public consistent with 
its other responsibilities, written requests for a DoD or Department of 
the Army record made under the FOIA may be denied only when:
    (1) The record is subject to one or more of the exemptions in 
subpart C of this part.
    (2) The record has not been described well enough to enable the DoD 
Component to locate it with a reasonable amount of effort by an employee 
familiar with the files.
    (3) The requester has failed to comply with the procedural 
requirements, including the written agreement to pay or payment of any 
required fee imposed by the instructions of the DoD Component concerned. 
When personally identifiable information in a record is requested by the 
subject of the record or his attorney, notarization of the request may 
be required.
    (b) Individuals seeking DoD information should address their FOIA 
requests to one of the addresses listed in appendix B.
    (c) Release of information under the FOIA can have an adverse impact 
on OPSEC. The Army implementing directive for OPSEC is AR 530-1. It 
requires that OPSEC points of contact be named for all HQDA staff 
agencies and for all commands down to battalion level. The FOIA official 
for the staff agency or command will use DA Form 4948-R to announce the 
OPSEC/FOIA advisor for the command. Persons named as OPSEC points of 
contact will be OPSEC/FOIA advisors. Command OPSEC/FOIA advisors should 
implement the policies and procedures in AR 530-1, consistent with this 
regulation and with the following considerations:
    (1) Documents or parts of documents properly classified in the 
interest of national security must be protected. Classified documents 
may be released in response to a FOIA request only under AR 380-5, 
chapter III. AR 380-5 provides that if parts of a document are not 
classified and can be segregated with reasonable ease, they may be 
released, but parts requiring continued protection must be clearly 
identified.
    (2) The release of unclassified documents could violate national 
security. When this appears possible, OPSEC-FOIA advisors should request 
a classification evaluation of the document by

[[Page 160]]

its proponent under AR 380-5, paragraphs 2-204, 2-600, 2-800, and 2-801. 
In such cases, other FOIA exemptions (para 3-200) may also apply.
    (3) A combination of unclassified documents, or parts of them, could 
combine to supply information that might violate national security if 
released. When this appears possible, OPSEC/FOIA advisors should 
consider classifying the combined information per AR 380-5, paragraph 2-
211.
    (4) A document or information may not be properly or currently 
classified when a FOIA request for it is received. In this case, the 
request may not be denied on the grounds that the document or 
information is classified except in accordance with Executive Order 
12356, Sec. 1.6(d), and AR 380-5, paragraph 2-204, and with approval of 
the Army General Counsel.
    (d) OPSEC/FOIA advisors will--
    (1) Advise persons processing FOIA requests on related OPSEC 
requirements.
    (2) Help custodians of requested documents prepare requests for 
classification evaluations.
    (3) Help custodians of requested documents identify the parts of 
documents that must remain classified under this paragraph and AR 380-5.
    (e) OPSEC/FOIA advisors do not, by their actions, relieve FOIA 
personnel and custodians processing FOIA requests of their 
responsibility to protect classified or exempted information.



Sec. 518.54  Requests from private parties.

    The provisions of the FOIA are reserved for persons with private 
interests as opposed to federal or foreign governments seeking official 
information. Requests from private persons will be made in writing, and 
will clearly show all other addresses within the Federal Government to 
whom the request was sent. This procedure will reduce processing time 
requirements, and ensure better inter and intra-agency coordination. 
Components are under no obligation to establish procedures to receive 
hand delivered requests. Foreign governments seeking information from 
DoD Components should use established official channels for obtaining 
information. Release of records to individuals under the FOIA is 
considered public release of information, except as provided for in 
Secs. 518.24 and 518.32. DA officials will release the following 
records, upon request, to the persons specified below, even though these 
records are exempt from release to the general public. The 10-day limit 
(Sec. 518.22) applies.
    (a) Medical records. Commanders or chiefs of medical treatment 
facilities will release information.
    (1) On the condition of sick or injured patients to the patient's 
relatives.
    (2) That a patient's condition has become critical to the nearest 
known relative or to the person the patient has named to be informed in 
an emergency.
    (3) That a diagnosis of psychosis has been made to the nearest known 
relative or to the person named by the patient.
    (4) On births, deaths, and cases of communicable diseases to local 
officials (if required by local laws).
    (5) Copies of records of present or former soldiers, dependents, 
civilian employees, or patients in DA medical facilities will be 
released to the patient or to the patient's representative on written 
request. The attending physician can withhold records if he or she 
thinks that release may injure the patient's mental or physical health; 
in that case, copies of records will be released to the patient's next 
of kin or legal representative or to the doctor assuming the patient's 
treatment. If the patient is adjudged insane, or is dead, the copies 
will be released, on written request, to the patient's next of kin or 
legal representative.
    (6) Copies of records may be given to a Federal or State hospital or 
penal institution if the person concerned is an inmate or patient there.
    (7) Copies of records or information from them may be given to 
authorized representatives of certain agencies. The National Academy of 
Sciences, the National Research Council, and other accredited agencies 
are eligible to receive such information when they are engaged in 
cooperative studies, with the approval of The Surgeon General of the 
Army. However, certain information on drug and alcohol use cannot be 
released. AR 600-85 covers the Army's alcohol and drug abuse prevention 
and control program.

[[Page 161]]

    (8) Copies of pertinent parts of a patient's records can be 
furnished to the staff judge advocate or legal officer of the command in 
connection with the Government's collection of a claim. If proper, the 
legal officer can release this information to the tortfeasor's insurer 
without the patient's consent.
    Note: Information released to third parties under paragraphs (a) 
(5), (6), and (7) of this section must be accompanied by a statement of 
the conditions of release. The statement will specify that the 
information not be disclosed to other persons except as privileged 
communication between doctor and patient.

    (b) Military personnel records. Military personnel records will be 
released under these conditions:
    (1) DA must provide specific information about a person's military 
service (statement of military service) in response to a request by that 
person or with that person's written consent to his or her legal 
representative.
    (2) Papers relating to applications for, designation of 
beneficiaries under, and allotments to pay premiums for, National 
Service Life Insurance or Serviceman's Group Life Insurance will be 
released to the applicant or to the insured. If the insured is adjudged 
insane (evidence of an insanity judgment must be included) or dies, the 
records will be released, on request, to designated beneficiaries or to 
the next of kin.
    (3) Copies of DA documents that record the death of a soldier, a 
dependent, or a civilian employee will be released, on request, to that 
person's next of kin, life insurance carrier, and legal representative. 
A person acting on behalf of someone else concerned with the death 
(e.g., the executor of a will) may also obtain copies by submitting a 
written request that includes evidence of his or her representative 
capacity. That representative may give written consent for release to 
others.
    (4) Papers relating to the pay and allowances or allotments of a 
present or former soldier will be released to the soldier or his or her 
authorized representative. If the soldier is deceased, these papers will 
be released to the next of kin or legal representatives.
    (c) Civilian personnel records. Civilian Personnel Officers (CPOs) 
with custody of papers relating to the pay and allowances or allotments 
of current or former civilian employees will release them to the 
employee or his or her authorized representative. If the employee is 
dead, these records will be released to the next of kin or legal 
representative. However, a CPO cannot release statements of witnesses, 
medical records, or other reports or documents pertaining to 
compensation for injuries or death of a DA civilian employee (Federal 
Personnel Manual, chap 294). Only officials listed in Sec. 518.58(d) 
(18) can release such information.
    (d) Release of information to the public concerning accused persons 
before determination of the case. Such release may prejudice the 
accused's opportunity for a fair and impartial determination of the 
case. The following procedures apply:
    (1) Information that can be released. Subject to paragraph (d)(2) of 
this section, the following information concerning persons accused of an 
offense may be released by the convening authority to public news 
agencies or media.
    (i) The accused's name, grade or rank, unit, regular assigned 
duties, and other information as allowed by AR 340-21, paragraph 3-3a.
    (ii) The substance or text of the offense of which the person is 
accused.
    (iii) The identity of the apprehending or investigating agency and 
the length or scope of the investigation before apprehension. The 
factual circumstances immediately surrounding the apprehension, 
including the time and place of apprehension, resistance, or pursuit.
    (iv) The type and place of custody, if any.
    (2) Information that will not be released. Before evidence has been 
presented in open court, subjective observations or any information not 
incontrovertibly factual will not be released. Background information or 
information relating to the circumstances of an apprehension may be 
prejudicial to the best interests of the accused, and will not be 
released except under paragraph (d) of this section, unless it serves a 
law enforcement function. The following kinds of information will not be 
released:

[[Page 162]]

    (i) Observations or comments on an accused's character and demeanor, 
including those at the time of apprehension and arrest or during 
pretrial custody.
    (ii) Statements, admissions, confessions, or alibis attributable to 
an accused, or the fact of refusal or failure of the accused to make a 
statement.
    (iii) Reference to confidential sources, investigative techniques 
and procedures, investigator notes, and activity files. This includes 
reference to fingerprint tests, polygraph examinations, blood tests, 
firearms identification tests, or similar laboratory tests or 
examinations.
    (iv) Statements as to the identity, credibility, or testimony of 
prospective witnesses.
    (v) Statements concerning evidence or argument in the case, whether 
or not that evidence or argument may be used at the trial.
    (vi) Any opinion on the accused's guilt.
    (vii) Any opinion on the possibility of a plea of guilty to the 
offense charged, or of a plea to a lesser offense.
    (3) Other considerations.
    (i) Photographing or televising the accused. DA personnel should not 
encourage or volunteer assistance to news media in photographing or 
televising an accused or suspected person being held or transported in 
military custody. DA representatives should not make photographs of an 
accused or suspect available unless a law enforcement function is 
served. Requests from news media to take photographs during courts-
martial are governed by AR 360-5.
    (ii) Fugitives from justice. This paragraph does not restrict the 
release of information to enlist public aid in apprehending a fugitive 
from justice.
    (iii) Exceptional cases. Permission to release information from 
military personnel records other than as outlined in paragraph (b) of 
this section to public news agencies or media may be requested from The 
Judge Advocate General (TJAG). Requests for information from military 
personnel records other than as outlined in paragraph (b) of this 
section above will be processed according to this regulation.
    (e) Litigation, tort claims, and contract disputes. Release of 
information or records under this paragraph is subject to the time 
limitations prescribed in Sec. 518.62. The requester must be advised of 
the reasons for nonrelease or referral.
    (1) Litigation. (i) Each request for a record related to pending 
litigation involving the United States will be referred to the staff 
judge advocate or legal officer of the command. He or she will promptly 
inform the Litigation Division, Office of the Judge Advocate General 
(OTJAG), of the substance of the request and the content of the record 
requested. (Mailing address: HQDA (DAJA-LT), WASH DC 20310-2210; 
telephone, AUTOVON 227-3462 or commercial (202) 697-3462.)
    (ii) If information is released for use in litigation involving the 
United States, the official responsible for investigative reports (AR 
27-40, para 2-4) must be advised of the release. He or she will note the 
release in such investigative reports.
    (iii) Information or records normally exempted from release (i.e., 
personnel and medical records) may be releasable to the judge or court 
concerned, for use in litigation to which the United States is not a 
party. Refer such requests to the local staff judge advocate or legal 
officer, who will coordinate it with the Litigation Division, OTJAG 
paragraph ((a)of this section).
    (2) Tort claims. (i) A claimant or a claimant's attorney may request 
a record that relates to a pending administrative tort claim filed 
against the DA. Refer such requests promptly to the claims approving or 
settlement authority that has monetary jurisdiction over the pending 
claim. These authorities will follow AR 27-20. The request may concern 
an incident in which the pending claim is not as large as a potential 
claim; in such a case, refer the request to the authority that has 
monetary jurisdiction over the potential claim.
    (ii) A potential claimant or his or her attorney may request 
information under circumstances clearly indicating that it will be used 
to file a tort claim, though none has yet been filed. Refer such 
requests to the staff judge advocate or legal officer of the command.

[[Page 163]]

That authority, when subordinate, will promptly inform the Chief, U.S. 
Army Claims Service, of the substance of the request and the content of 
the record. (Mailing address: U.S. Army Claims Service, Attn: JACS-TCC, 
Fort George G. Meade, MD 20755-5360; telephone, AUTOVON 923-7860 or 
commercial (301) 677-7860.)
    (iii) DA officials listed in Sec. 518.54(d) who receive requests 
under (a) or (b) of this section will refer them directly to the Chief, 
U.S. Army Claims Service. They will also advise the requesters of the 
referral and the basis for it.
    (iv) The Chief, U.S. Army Claims Service, will process requests 
according to this regulation and AR 27-20, paragraph 1-10.
    (3) Contract disputes. Each request for a record that relates to a 
potential contract dispute or a dispute that has not reached final 
decision by the contracting officer will be treated as a request for 
procurement records and not as litigation. However, the officials listed 
in Secs. 518.50(a) and 518.54(d) will consider the effect of release on 
the potential dispute. Those officials may consult with the U.S. Army 
Legal Services Agency. (Mailing address: U.S. Army Legal Services 
Agency, Attn: JALS-CA, Nassif Building, 5611 Columbia Pike, Falls 
Church, VA 22041-5013; telephone, AUTOVON 289-2023 or commercial (703) 
756-2023.) If the request is for a record that relates to a pending 
contract appeal to the Armed Services Board of Contract Appeals or to a 
final decision that is still subject to appeal (i.e., 90 days have not 
lapsed after receipt of the final decision by the contractor), then the 
request will be--
    (i) Treated as involving a contract dispute; and
    (ii) Referred to the U.S. Army Legal Services Agency. (For address 
and phone number, see paragraph (e)(3) of this section.)
    (f) Dissemination of unclassified information concerning physical 
protection of special nuclear material. (1) Unauthorized dissemination 
of unclassified information pertaining to security measures, including 
security plans, procedures, and equipment for the physical protection of 
special nuclear material, is prohibited under 10 U.S.C. 128 and para 
3[EN]200, exemption number 3.
    (2) This prohibition shall be applied by the Deputy Chief of Staff 
for Operations and Plans as the IDA, to prohibit the dissemination of 
any such information only if and to the extent that it is determined 
that the unauthorized dissemination of such information could reasonably 
be expected to have a significant adverse effect on the health and 
safety of the public or the common defense and security by significantly 
increasing the likelihood of--
    (i) Illegal production of nuclear weapons; or
    (ii) Theft, diversion, or sabotage of special nuclear materials, 
equipment, or facilities.
    (3) In making such a determination, DOD personnel may consider what 
the likelihood of an illegal production, theft, diversion, or sabotage 
would be if the information proposed to be prohibited from dissemination 
were at no time available for dissemination.
    (4) DOD personnel shall exercise the foregoing authority to prohibit 
the dissemination of any information described:
    (i) So as to apply the minimum restrictions needed to protect the 
health and safety of the public or the common defense and security; and
    (ii) Upon a determination that the unauthorized dissemination of 
such information could reasonably be expected to result in a significant 
adverse effect on the health and safety of the public or the common 
defense and security by significantly increasing the likelihood of--
    (A) Illegal production of nuclear weapons; or
    (B) Theft, diversion, or sabotage of special nuclear materials, 
equipment, or facilities.
    (5) DOD employees shall not use this authority to withhold 
information from the appropriate committees of Congress.
    (g) Release of names and duty addresses. (1) Telephone directories, 
organizational charts, and/or staff directories published by 
installations or activities in CONUS and U.S. Territories will be 
released when requested under FOIA. In all such directories or charts, 
names of personnel assigned to sensitive units, routinely deployable 
units, or

[[Page 164]]

units stationed in foreign territories will be redacted and denied under 
Exemption 6 of the FOIA. By DoD policy, the names of general officers 
(or civilian equivalent) or public affairs officers may be released at 
any time. The sanitized copy will be redacted by cutting out or masking 
the names and reproducing the document. The IDA is the U.S. Army 
Information Systems Command-Pentagon, Freedom of Information and Privacy 
Act Division, Attn: ASQNS-OP-F, room 1146, Hoffman Building I, 
Alexandria, VA 22331-0301.
    (2) Public Affairs Offices may release information determined to 
have legitimate news value, such as notices of personnel reassignments 
to new units or installations within the continental United States, 
results of selection/promotion boards, school graduations/completions, 
and awards and similar personal achievements. They may release the names 
and duty addresses of key officials, if such release is determined to be 
in the interests of advancing official community relations functions.

[56 FR 48932, Sept. 26, 1991, as amended at 56 FR 56010, Oct. 31, 1991]



Sec. 518.55  Requests from Government officials.

    Requests from officials of State, or local Governments for DoD 
Component records shall be considered the same as any other requester. 
Requests from members of Congress not seeking records on behalf of a 
Congressional Committee, Subcommittee, either House sitting as a whole, 
or made on behalf of their constituents shall be considered the same as 
any other requester (see Secs. 518.24 and 518.56). Requests from 
officials of foreign governments shall be considered the same as any 
other requester. Requests from officials of foreign governments that do 
not invoke the FOIA shall be referred to appropriate foreign disclosure 
channels and the requester so notified.



Sec. 518.56  Privileged release to officials.

    (a) Subject to DoD 5200.1-R (reference (h)), and AR 380-5 applicable 
to classified information, DoD Directive 5400.11 (reference (d)), and AR 
340-21 applicable to personal privacy, or other applicable law, records 
exempt from release under subpart C, Exemptions, of this part may be 
authenticated and released, without requiring release to other FOIA 
requesters, in accordance with DoD Component regulations to U.S. 
Government officials requesting them on behalf of Federal government 
bodies, whether legislative, executive, administrative, or judicial, as 
follows:
    (1) To a Committee or Subcommittee of Congress, or to either House 
sitting as a whole in accordance with DoD Directive 5400.4 (reference 
(n)). The Army implementing directive is AR 1-20. Commanders or chiefs 
will notify the Chief of Legislative Liaison of all releases of 
information to members of Congress or staffs of congressional 
committees. Organizations that in the normal course of business are 
required to provide information to Congress may be excepted. Handle 
requests by members of Congress (or staffs of congressional committees) 
for inspection of copies of official records as follows:
    (i) National security classified records. Follow AR 380-5.
    (ii) Civilian personnel records. Members of Congress may examine 
offical personnel folders as permitted by 5 CFR 297.503(i).
    (iii) Information related to disciplinary action. This subparagraph 
refers to records of trial by courts-martial; nonjudicial punishment of 
military personnel under the Uniform Code of Military Justice, Article 
15; nonpunitive measures such as administrative reprimands and 
admonitions; suspensions of civilian employees; and similar documents. 
If the Department of the Army has not issued specific instructions on 
the request, the following instructions will apply. Subordinate 
commanders will not release any information without securing the consent 
of the proper installation commander. The installation commander may 
release the information unless the request is for a classified or ``For 
Official Use Only'' document. In that case the commander will refer the 
request promptly to the Chief of Legislative Liaison (see paragraph (d) 
of this section for action, including the recommendations of the 
transmitting agency and copies of the requested records with the 
referral.

[[Page 165]]

    (iv) Military personnel records. Only HQDA can release information 
from these records. Custodians will refer all requests from Congress 
directly and promptly to the Chief of Legislative Liaison, Department of 
the Army, HQDA (SALL) WASH DC 20310-1600.
    (v) Criminal investigation records. Only the Commanding General, 
U.S. Army Criminal Investigation Command (USACIDC), can release any 
USACIDC-originated criminal investigation file. For further information, 
see AR 195-2, Criminal Investigation Activities.
    (vi) Other exempt records. Commanders or chiefs will refer requests 
for all other categories of exempt information under Sec. 518.33 
directly to the Chief of Legislative Liaison per paragraph (d) of this 
section. They will include a copy of the material requested and, as 
appropriate, recommendations concerning release or denial.
    (vii) All other records. The commander or chief with custody of the 
records will furnish all other information promptly.
    (2) To the Federal courts, whenever ordered by officers of the court 
as necessary for the proper administration of justice.
    (3) To other Federal Agencies, both executive and administrative, as 
determined by the head of a DoD Component or designee.
    (i) Disciplinary actions and criminal investigations. Requests for 
access to, or information from, the records of disciplinary actions or 
criminal investigations will be honored if proper credentials are 
presented. Representatives of the Office of Personnel Management may be 
given information from personnel files of employees actually employed at 
organizations or activities. Each such request will be considered on its 
merits. The information released will be the minimum required in 
connection with the investigation being conducted.
    (ii) Other types of requests. All other official requests received 
by DA elements from agencies of the executive branch (including other 
military departments) will be honored, if there are no compelling 
reasons to the contrary. If there are reasons to withhold the records, 
the requests will be submitted for determination of the propriety of 
release to the appropriate addresses shown in appendix B.
    (4) To State and local officials, as determined by the head of a DoD 
Component or designee.
    (b) DoD Components shall inform officials receiving records under 
the provisions of Sec. 518.56(a), that those records are exempt from 
public release under the FOIA and are privileged. DOD Components shall 
also advise officials of any special handling instructions.



Sec. 518.57  Required coordination.

    Before forwarding a FOIA request to an IDA for action, records 
custodians will obtain an opinion from their servicing judge advocate 
concerning the releasability of the requested records. A copy of that 
legal review, the original FOIA request, two copies of the requested 
information (with one copy clearly indicating which portions are 
recommended for withholding, which FOIA exemptions support such 
withholding, and which portions, if any, have already been released), a 
copy of the interim response acknowledging receipt and notifying the 
requester of the referral to the IDA, and a cover letter containing a 
telephone point of contact will be forwarded to the IDA with the 
command's recommendation to deny a request in whole or in part.

                         Initial Determinations



Sec. 518.58  Initial denial authority.

    (a) Components shall limit the number of IDAs appointed. In 
designating its IDAs, a DoD Component shall balance the goals of 
centralization of authority to promote uniform decisions and 
decentralization to facilitate responding to each request within the 
time limitations of the FOIA. The DA officials in paragraph (d) of this 
section are designated as the Army's only IDAs. Only an IDA, his or her 
delegate, or the Secretary of the Army can deny FOIA requests for DA 
records. Each IDA will act on direct and referred requests for records 
within his or her area of functional responsibility. (See the proper AR 
in the 10-series for full discussions of these areas; they are outlined 
in paragraph (d) of this section.) Included are records created or

[[Page 166]]

kept within the IDA's area of responsibility; records retired by, or 
referred to, the IDA's headquarters or office; and records of 
predecessor organizations. If a request involves the areas of more than 
one IDA, the IDA to whom the request was originally addressed will 
normally respond to it; however, the affected IDAs may consult on such 
requests and agree on responsibility for them. IDAs will complete all 
required coordination at initial denial level. This includes classified 
records retired to the National Archives and Records Administration when 
a mandatory declassification review is necessary.
    (b) The initial determination of whether to make a record available 
or grant a fee waiver upon request may be made by any suitable official 
designated by the DoD Component in published regulations. The presence 
of the marking ``For Official Use Only'' does not relieve the designated 
official of the responsibility to review the requested record for the 
purpose of determining whether an exemption under this Regulation is 
applicable and should be invoked. DAs may delegate all or part of their 
authority to an office chief or subordinate commander. Such delegations 
must not slow FOIA actions. If an IDA's delegate denies a FOIA or fee 
waiver request, the delegate must clearly state that he or she is acting 
for the IDA and identify the IDA by name and position in the written 
response to the requester. IDAs will send the names, offices, and 
telephone numbers of their delegates to the Director of Information 
Systems for Command, Control, Communications, and Computers. IDAs will 
keep this information current. (The mailing address is HQDA (SAIS-PS), 
WASH DC 20310-0107.
    (c) The officials designated by DoD Components to make initial 
determinations should consult with public affairs officers (PAOs) to 
become familiar with subject matter that is considered to be newsworthy, 
and advise PAOs of all requests from news media representatives. In 
addition, the officials should inform PAOs in advance when they intend 
to withhold or partially withhold a record, if it appears that the 
withholding action may be challenged in the media. A FOIA release or 
denial action, appeal, or court review may generate public or press 
interest. In such case, the IDA (or delegate) should consult the Chief 
of Public Affairs or the command or organization PAO. The IDA should 
inform the PAO contacted of the issue and obtain advice and 
recommendations on handling its public affairs aspect. Any advice or 
recommendations requested or obtained should be limited to this aspect. 
Coordination must be completed within the 10-day FOIA response limit. 
(The point of contact for the Army Chief of Public Affairs is HQDA 
(SAPA-OSR), WASH DC 20310-1500; telephone, AUTOVON 227-4122 or 
commercial (202) 697-4122.) If the request involves actual or potential 
litigation against the United States, release must be coordinated with 
The Judge Advocate General. (See Sec. 518.54(e).)
    (d) The following officials are designated IDAs for the areas of 
responsibility outlined below:
    (1) The Administrative Assistant to the Secretary of the Army is 
authorized to act for the Secretary of the Army on requests for all 
records maintained by the Office of the Secretary of the Army and its 
serviced activities, except those specified in paragraphs (d)(2) through 
(d)(6) of this section, as well as requests requiring the personal 
attention of the Secretary of the Army.
    (2) The Assistant Secretary of the Army (Financial Management) is 
authorized to act on requests for finance and accounting records.
    (3) The Assistant Secretary of the Army (Research, Development, and 
Acquisition) is authorized to act on requests for procurement records 
other than those under the purview of the Chief of Engineers and the 
Commander, U.S. Army Materiel Command.
    (4) The Director of Information Systems for Command, Control, 
Communications, and Computers (DISC4) is authorized to act on requests 
for records pertaining to the Army Information Resources Management 
Program (automation, telecommunications, visual information, records 
management, publications and printing, and libraries).

[[Page 167]]

    (5) The Inspector General is authorized to act on requests for all 
Inspector General records under AR 20-1.
    (6) The Auditor General is authorized to act on requests for records 
relating to audits done by the U.S. Army Audit Agency under AR 10-2. 
This includes requests for related records developed by the Audit 
agency.
    (7) The Deputy Chief of Staff for Operations and Plans is authorized 
to act on requests for records relating to strategy formulation; force 
development; individual and unit training policy; strategic and tactical 
command and control systems; nuclear and chemical matters; use of DA 
forces; and military police records and reports, prisoner confinement, 
and correctional records.
    (8) The Deputy Chief of Staff for Personnel is authorized to act on 
requests for case summaries, letters of instruction to boards, 
behavioral science records, general education records, and alcohol and 
drug prevention and control records. Excluded are individual treatment/
test records, which are a responsibility of The Surgeon General.
    (9) The Deputy Chief of Staff for Logistics is authorized to act on 
requests for records relating to DA logistical requirements and 
determinations, policy concerning materiel maintenance and use, 
equipment standards, and logistical readiness.
    (10) The Chief of Engineers is authorized to act on requests for 
records involving civil works, military construction, engineer 
procurement, and ecology; and the records of the U.S. Army Engineer 
divisions, districts, laboratories, and field operating agencies.
    (11) The Surgeon General is authorized to act on requests for 
medical research and development records, and the medical records of 
active duty military personnel, dependents, and persons given physical 
examination or treatment at DA medical facilities, to include alcohol 
and drug treatment/test records.
    (12) The Chief of Chaplains is authorized to act on requests for 
records involving ecclesiastical relationships, rites performed by DA 
chaplains, and nonprivileged communications relating to clergy and 
active duty chaplains' military personnel files.
    (13) The Judge Advocate General (TJAG) is authorized to act on 
requests for records relating to claims, courts-martial, legal services, 
and similar legal records. TJAG is also authorized to act on requests 
for records described elsewhere in this regulation, if those records 
relate to litigation in which the United States has an interest. In 
addition, TJAG is authorized to act on requests for records that are not 
within the functional areas of responsibility of any other IDA.
    (14) The Chief, National Guard Bureau, is authorized to act on 
requests for all personnel and medical records of retired, separated, 
discharged, deceased, and active Army National Guard military personnel, 
including technician personnel, unless such records clearly fall within 
another IDA's responsibility. This authority includes, but is not 
limited to, National Guard organization and training files; plans, 
operations, and readiness files; policy files; historical files; files 
relating to National Guard military support, drug interdiction, and 
civil disturbances; construction, civil works, and ecology records 
dealing with armories, facilities within the States, ranges, etc.; Equal 
Opportunity investigative records; aviation program records and 
financial records dealing with personnel, operation and maintenance, and 
equipment budgets.
    (15) The Chief of Army Reserve is authorized to act on requests for 
all personnel and medical records of retired, separated, discharged, 
deceased, and reserve component military personnel, and all U.S. Army 
Reserve (USAR) records, unless such records clearly fall within another 
IDA's responsibility. Records under the responsibility of the Chief of 
Army Reserve include records relating to USAR plans, policies, and 
operations; changes in the organizational status of USAR units; 
mobilization and demobilization policies; active duty tours; and the 
Individual Mobilization Augmentation program.
    (16) The Commander, United States Army Materiel Command (AMC) is 
authorized to act on requests for the records of AMC headquarters and 
its

[[Page 168]]

subordinate commands, units, and activities that relate to procurement, 
logistics, research and development, and supply and maintenance 
operations.
    (17) The Commander, USACIDC, is authorized to act on requests for 
criminal investigative records of USACIDC headquarters and its 
subordinate activities. This includes criminal investigation records, 
investigation-in-progress records, and military police reports that 
result in criminal investigation reports.
    (18) The Commander, United States Total Army Personnel Command, is 
authorized to act on requests for military personnel files relating to 
active duty (other than those of reserve and retired personnel) military 
personnel matters, personnel locator, physical disability 
determinations, and other military personnel administration records; 
records relating to military casualty and memorialization activities; 
heraldic activities; voting; records relating to identification cards; 
naturalization and citizenship; commercial solicitation; Military Postal 
Service Agency and Army postal and unofficial mail service; civilian 
personnel records and other civilian personnel matters; and personnel 
administration records.
    (19) The Commander, United States Army Community and Family Support 
Center, is authorized to act on requests for records relating to morale, 
welfare, and recreation activities; nonappropriated funds; child 
development centers, community life programs, and family action 
programs; retired activities; club management; Army emergency relief; 
consumer protection; retiree survival benefits; and records dealing with 
DA relationships with Social Security, Veterans' Affairs, United Service 
Organization, U.S. Soldiers' and Airmen's Home, and American Red Cross.
    (20) The Commander, United States Army Intelligence and Security 
Command, is authorized to act on requests for intelligence investigation 
and security records, foreign scientific and technological information, 
intelligence training, mapping and geodesy information, ground 
surveillance records, intelligence threat assessment, and missile 
intelligence data relating to tactical land warfare systems.
    (21) The Commander, U.S. Army Safety Center, is authorized to act on 
requests for Army safety records.
    (22) The General Counsel, Army and Air Force Exchange Service 
(AAFES), is authorized to act on requests for AAFES records, under AR 
60-20/AFR 147-14.
    (23) The Commander, Forces Command (FORSCOM), as a specified 
commander, is authorized to act on requests for specified command 
records that are unique to FORSCOM under Sec. 518.29.
    (24) Special IDA authority for time-event related records may be 
designated on a case-by-case basis. These will be published in the 
Federal Register. Current information on special delegations may be 
obtained from the Office of the Director of Information Systems for 
Command, Control, Communications, and Computers, Attn: SAIS-PSP, WASH DC 
20310-0107.



Sec. 518.59  Reasons for not releasing a record.

    There are seven reasons for not complying with a request for a 
record:
    (a) The request is transferred to another DoD Component, or to 
another federal agency.
    (b) The DoD Component determines through knowledge of its files and 
reasonable search efforts that it neither controls nor otherwise 
possesses the requested record.
    (c) A record has not been described with sufficient particularity to 
enable the DoD Component to locate it by conducting a reasonable search.
    (d) The requester has failed unreasonably to comply with procedural 
requirements, including payment of fees imposed by this part or DoD 
Component supplementing regulations.
    (e) The request is withdrawn by the requester.
    (f) The information requested is not a record within the meaning of 
the FOIA and this Regulation.
    (g) The record is denied in accordance with procedures set forth in 
the FOIA and this part.



Sec. 518.60  Denial tests.

    To deny a requested record that is in the possession and control of 
a DoD Component, it must be determined that

[[Page 169]]

the record is included in one or more of the nine categories of records 
exempt from mandatory disclosure as provided by the FOIA and outlined in 
subpart C of this part.

[56 FR 56010, Oct. 31, 1991]



Sec. 518.61  Reasonably segregable portions.

    Although portions of some records may be denied, the remaining 
reasonably segregable portions must be released to the requester when it 
reasonably can be assumed that a skillful and knowledgeable person could 
not reconstruct the excised information. When a record is denied in 
whole, the response advising the requester of that determination will 
specifically state that it is not too reasonable to segregate portions 
of the records for release. The excised copies shall reflect the denied 
information by means of Blackened areas, which are Sufficiently 
Blackened as to reveal no information. The best means to ensure 
illegibility is to cut out the information from a copy of the document 
and reproduce the appropriate pages. If the document is classified, all 
classification markings shall be lined through with a single black line, 
which still allows the marking to be read. The document shall then be 
stamped ``Unclassified''.

[56 FR 56010, Oct. 31, 1991]



Sec. 518.62  Response to requester.

    (a) Initial determinations to release or deny a record normally 
shall be made and the decision reported to the requester within 10 
working days after receipt of the request by the official designated to 
respond. The action command or office holding the records will date- and 
time-stamp each request on receipt. The 10-day limit will start from the 
date stamped.
    (b) When a decision is made to release a record, a copy should be 
made available promptly to the requester once he has complied with 
preliminary procedural requirements.
    (c) When a request for a record is denied in whole or in part, the 
official designated to respond shall inform the requester in writing of 
the name and title or position of the official who made the 
determination, and shall explain to the requester the basis for the 
determination in sufficient detail to permit the requester to make a 
decision concerning appeal. The requester specifically shall be informed 
of the exemptions on which the denial is based. When the initial denial 
is based in whole or in part on a security classification, the 
explanation should include a summary of the applicable criteria for 
classification, as well as an explanation, to the extent reasonably 
feasible, of how those criteria apply to the particular record in 
question. The requester shall also be advised of the opportunity and 
procedures for appealing an unfavorable determination to a higher final 
authority within the DoD Component. The IDA will inform the requester of 
his or her right to appeal, in whole or part, the denial of the FOIA or 
fee waiver request and that the appeal must be sent through the IDA to 
the Secretary of the Army (Attn: General Counsel). (See Sec. 518.69).
    (d) The response to the requester should contain information 
concerning the fee status of the request, consistent with the provisions 
of subpart F, this regulation. Generally, the information shall reflect 
one or more of the following conditions:
    (1) All fees due have been received.
    (2) Fees have been waived because they fall below the automatic fee 
waiver threshold.
    (3) Fees have been waived or reduced from a specified amount to 
another specified amount because the rationale provided in support of a 
request for waiver was accepted.
    (4) A request for waiver has been denied.
    (5) Fees due in a specified amount have not been received.
    (e) The explanation of the substantive basis for a denial shall 
include specific citation of the statutory exemption applied under 
provisions of this Regulation. Merely referring to a classification or 
to a ``For Official Use Only'' marking on the requested record does not 
constitute a proper citation or explanation of the basis for invoking an 
exemption.
    (f) When the time for response becomes an issue, the official 
responsible for replying shall acknowledge to the

[[Page 170]]

requester the date of the receipt of the request.



Sec. 518.63  Extension of time.

    (a) In unusual circumstances, when additional time is needed to 
respond, the DoD Component shall acknowledge the request in writing 
within the 10-day period, describe the circumstances requiring the 
delay, and indicate the anticipated date for substantive response that 
may not exceed 10 additional working days. Unusual circumstances that 
may justify delay are:
    (1) The requested record is located in whole or in part at places 
other than the office processing the request.
    (2) The request requires the collection and evaluation of a 
substantial number of records.
    (3) Consultation is required with other DoD Components or agencies 
having substantial interest in the subject matter to determine whether 
the records requested are exempt from disclosure in whole or in part 
under provisions of this Regulation or should be released as a matter of 
discretion.
    (b) The statutory extension of time for responding to an initial 
request must be approved on a case-by-case basis by the final appellate 
authority for the DoD Component, or in accordance with regulations of 
the DoD Component, or in accordance with regulations of the DoD 
Component that establish guidance governing the circumstances in which 
such extensions may be granted. The time may be extended only once 
during the initial consideration period. Only the responsible IDA can 
extend it, and the IDA must first coordinate with the Office of the Army 
General Counsel.
    (c) In these unusual cases where the statutory time limits cannot be 
met and no informal extension of time has been agreed to, the inability 
to process any part of the request within the specified time should be 
explained to the requester with notification that he or she may treat 
the delay as an initial denial with a right to appeal, or with a request 
that he agree to await a substantive response by an anticipated date. It 
should be made clear that any such agreement does not prejudice the 
right of the requester to appeal the initial decision after it is made. 
Components are reminded that the requester still retains the right to 
treat this delay as a de facto denial with full administrative remedies.
    (d) As an alternative to the taking of formal extensions of time as 
described in Sec. 518.63 (a), (b), and (c), the negotiation by the 
cognizant FOIA coordinating office of informal extensions in time with 
requesters is encouraged where appropriate.



Sec. 518.64  Misdirected requests.

    Misdirected requests shall be forwarded promptly to the DoD 
Component with the responsibility for the records requested. The period 
allowed for responding to the request misdirected by the requester shall 
not begin until the request is received by the DoD Component that 
manages the records requested.



Sec. 518.65  Records of non-U.S. Government source.

    (a) When a request is received for a record that was obtained from a 
non-U.S. Government source, or for a record containing information 
clearly identified as having been provided by a non-U.S. Government 
source, the source of the record or information (also known as ``the 
submitter'' for matters pertaining to proprietary data under 5 U.S.C. 
552 (reference (a) Exemption (b)(4) subpart C, exemptions, Sec. 518.37, 
paragraph (d) and reference (dd), this part) will be notified promptly 
of that request and afforded reasonable time (e.g., 30 calendar days) to 
present any objections concerning the release, unless it is clear that 
there can be no valid basis for objection. This practice is required for 
those FOIA requests for data not deemed clearly exempt from disclosure 
under Exemption (b)(4). If, for example, the record or information was 
provided with actual or presumptive knowledge of the non-U.S. Government 
source and estalished that it would be made available to the public upon 
request, there is no obligation to notify the source. Any objections 
shall be evaluated. The final decision to disclose information claimed 
to be exempt under Exemption (b)(4) shall be made by an official 
equivalent in rank to the official who would make the decision to 
withhold that information

[[Page 171]]

under the FOIA. When a substantial issue has been raised, the DoD 
Component may seek additional information from the source of the 
information and afford the source and requester reasonable opportunities 
to present their arguments on the legal and substantive issues involved 
prior to making an agency determination. When the source advises it will 
seek a restraining order to take court action to prevent release of the 
record or information, the requester shall be notified, and action on 
the request normally shall not be taken until after the outcome of that 
court action is known. When the requester brings court action to compel 
disclosure, the submitter shall be promptly notified of this action.
    (b) The coordination provisions of this paragraph also apply to any 
non-U.S. Government record in the possession and control of the 
Department of Defense from multi-national organizations, such as the 
North American Treaty Organization (NATO) and North American Aerospace 
Defense Command (NORAD), or foreign governments. Coordination with 
foreign governments under the provisions of this paragraph shall be made 
through Department of State.



Sec. 518.66  File of initial denials.

    Copies of all initial denials shall be maintained by each DoD 
Component in a form suitable for rapid retrieval, periodic statistical 
compilation, and management evaluation. Records will be maintained in 
accordance with AR 25-400-2.



Sec. 518.67  Special mail services.

    DoD Components are authorized to use registered mail, certified 
mail, certificates of mailing and return receipts. However, their use 
should be limited to instances where it appears advisable to establish 
proof of dispatch or receipt of FOIA correspondence.



Sec. 518.68  Receipt accounts.

    The Treasurer of the United States has established two accounts for 
FOIA receipts. These accounts, which are described below, shall be used 
for depositing all FOIA receipts, except receipts for industrially-
funded and non-appropriated funded activities. Components are reminded 
that the below account numbers must be preceded by the appropriate 
disbursing office two digit prefix. Industrially-funded and 
nonappropriated funded activity FOIA receipts shall be deposited to the 
applicable fund.
    (a) Receipt Account 3210 Sale of Publications and Reproductions, 
Freedom of Information Act. This account shall be used when depositing 
funds received from providing existing publications and forms that meet 
the Receipt Account Series description found in Federal Account Symbols 
and Titles. Deliver collections within 30 calendar days to the servicing 
finance and accounting office.
    (b) Receipt Account 3210 Fees and Other Charges for Services, 
Freedom of Information Act. This account is used to deposit search fees, 
fees for duplicating and reviewing (in the case of commercial 
requesters) records to satisfy requests that could not be filled with 
existing publications or forms.

                                 Appeals



Sec. 518.69  General.

    (a) If the official designated by the DoD Component to make initial 
determinations on requests for records (IDA) declines to provide a 
record because the official considers it exempt, that decision may be 
appealed by the requester, in writing, to a designated appellate 
authority. The appeal should be accompanied by a copy of the letter 
denying the initial request. Such appeals should contain the basis for 
disagreement with the initial refusal. Appeal procedures also apply to 
the disapproval of a request for a waiver or reduction of fees, and for 
no record determinations when the requester considers such a response 
adverse in nature. Appeals of denials of Office of the Secretary of 
Defense and Joint Staff documents or fee waivers may be sent to the 
address in appendix B, paragraph 2a to this part.
    (b) Appeals of adverse determinations made by Army IDAs must be made 
through the denying IDA to the Secretary of the Army (Attn: General 
Counsel). On receipt of an appeal, the IDA will--

[[Page 172]]

    (1) Send the appeal to the Office of the Secretary of the Army, 
Office of the General Counsel, together with a copy of the documents 
that are the subject of the appeal, marked to show the portions 
withheld; the initial denial letter; and any other relevant material.
    (2) Assist the General Counsel as requested during his or her 
consideration of the appeal.
    (c) Appeals of denial of records made by the General Counsel, AAFES, 
shall be made to the Secretary of the Army when the Commander, AAFES, is 
an Army officer.



Sec. 518.70  Time of receipt.

    An FOIA appeal has been received by a DoD Component when it reaches 
the office of an appellate authority having jurisdiction. Misdirected 
appeals should be referred expeditiously to the proper appellate 
authority.



Sec. 518.71  Time limits.

    (a) The requester shall be advised to file an appeal so that it 
reaches the appellate authority no later than 60 calendar days after the 
date of the initial denial letter. At the conclusion of this period, the 
case may be considered closed; however, such closure does not preclude 
the requester from filing litigation. In cases where the requester is 
provided several incremental determinations for a single request, the 
time for the appeal shall not begin until the requester receives the 
last such notification. Records which are denied shall be retained for a 
period of six years to meet the statute of limitations of claims 
requirement.
    (b) Final determinations on appeals normally shall be made within 20 
working days after receipt.



Sec. 518.72  Delay in responding to an appeal.

    (a) If additional time is needed due to the unusual circumstances 
described in Sec. 518.63, of this part, the final decision may be 
delayed for the number of working days (not to exceed 10), that were not 
used as additional time for responding to the initial request.
    (b) If a determination cannot be made and the requester notified 
within 20 working days, the appellate authority shall acknowledge to the 
requester, in writing, the date of receipt of the appeal, the 
circumstances surrounding the delay, and the anticipated date for 
substantive response. Requests shall be advised that, if the delay 
exceeds the statutory extension provision or is for reasons other than 
the unusual circumstances identified in Sec. 518.63, they may consider 
their administrative remedies exhausted. They may, however, without 
prejudicing their right of judicial remedy, await a substantive 
response. The DoD Component shall continue to process the case 
expeditiously, whether or not the requester seeks a court order for 
release of the records, but a copy of any response provided subsequent 
to filing of a complaint shall be forwarded to the Department of 
Justice.



Sec. 518.73  Response to the requester.

    (a) When an appellate authority makes a determination to release all 
or a portion of records withheld by an IDA, a copy of the records so 
released should be forwarded promptly to the requester after compliance 
with any preliminary procedural requirements, such as payment of fees.
    (b) Final refusal to provide a requested record or to approve a 
request for waiver or reduction of fees must be made in writing by the 
head of the DoD Component or by a designated representative. The 
response, at a minimum, shall include the following:
    (1) The basis for the refusal shall be explained to the requester, 
in writing, both with regard to the applicable statutory exemptions or 
exemption invoked under provisions of this regulation.
    (2) When the final refusal is based in whole or in part on a 
security classification, the explanation shall include a determination 
that the record meets the cited criteria and rationale of the governing 
Executive Order, and that this determination is based on a 
declassification review, with the explanation of how that review 
confirmed the continuing validity of the security classification.
    (3) The final denial shall include the name and title or position of 
the official responsible for the denial.

[[Page 173]]

    (4) The response shall advise the requester that the material being 
denied does not contain meaningful portions that are reasonably 
segregable.
    (5) The response shall advise the requester of the right to judicial 
review.



Sec. 518.74  Consultation.

    (a) Final refusal, involving issues not previously resolved or that 
the DoD Component knows to be inconsistent with rulings of other DoD 
Components, ordinarily should not be made before consultation with the 
Office of the General Counsel of the Department of Defense.
    (b) Tentative decisions to deny records that raise new or 
significant legal issues of potential significance to other agencies of 
the government shall be provided to the Department of Justice, ATTN: 
Office of Legal Policy, Office of Information and Policy, Washington, DC 
20530.

                            Judicial Actions



Sec. 518.75  General.

    (a) This section states current legal and procedural rules for the 
convenience of the reader. The statements of rules do not create rights 
or remedies not otherwise available, nor do they bind the Department of 
Defense to particular judicial interpretations or procedures.
    (b) A requester may seek an order from a United States District 
Court to compel release of a record after administrative remedies have 
been exhausted; i.e., when refused a record by the head of a Component 
or an appellate designee or when the DoD Component has failed to respond 
within the time limits prescribed by the FOIA and in this Regulation.



Sec. 518.76  Jurisdiction.

    The requester may bring suit in the United States District Court in 
the district in which the requester resides or is the requester's place 
of business, in the district in which the record is located, or in the 
District of Columbia.



Sec. 518.77  Burden of proof.

    The burden of proof is on the DoD Component to justify its refusal 
to provide a record. The court shall evaluate the case de novo (anew) 
and may elect to examine any requested record in camera (in private) to 
determine whether the denial was justified.



Sec. 518.78  Action by the court.

    (a) When a DoD Component has failed to make a determination within 
the statutory time limits but can demonstrate due diligence in 
exceptional circumstances, the court may retain jurisdiction and allow 
the Component additional time to complete its review of the records.
    (b) If the court determines that the requester's complaint is 
substantially correct, it may require the United States to pay 
reasonable attorney fees and other litigation costs.
    (c) When the court orders the release of denied records, it may also 
issue a written finding that the circumstances surrounding the 
withholding raise questions whether DoD Component personnel acted 
arbitrarily and capriciously. In these cases, the special counsel of the 
Merit Systems Protection Board shall conduct an investigation to 
determine whether or not disciplinary action is warranted. The DoD 
Component is obligated to take the action recommended by the special 
counsel.
    (d) The court may punish the responsible official for contempt when 
a DoD Component fails to comply with the court order to produce records 
that it determines have been withheld improperly.



Sec. 518.79  Non-United States Government source information.

    A requester may bring suit in a U.S. District Court to compel the 
release of records obtained from a nongovernment source or records based 
on information obtained from a nongovernment source. Such source shall 
be notified promptly of the court action. When the source advises that 
it is seeking court action to prevent release, the DoD Component shall 
defer answering or otherwise pleading to the complainant as long as 
permitted by the Court or until a decision is rendered in the court 
action of the source, whichever is sooner.

[[Page 174]]



Sec. 518.80  Litigation status sheet.

    FOIA managers at DoD Component level shall be aware of litigation 
under the FOIA. Such information will provide management insights into 
the use of the nine exemptions by Component personnel. The Litigation 
Status Sheet at appendix C provides a standard format for recording 
information concerning FOIA litigation and forwarding that information 
to the Office of the Secretary of Defense. Whenever a complaint under 
the FOIA is filed in a U.S. District Court, the DoD Component named in 
the complaint shall forward a Ligitation Status Sheet, with items 1 
through 6 completed, and a copy of the complaint to the OASD(PA), Attn: 
DFOISR, with an information copy to the General Counsel, Department of 
Defense, Attn: Office of Legal Counsel. A revised Litigation Status 
Sheet shall be provided at each stage of the litigation. In the 
Department of the Army, HQDA TJAG (DAJA-LT), WASH DC 20310-2210 is 
responsible for preparing this report.



                         Subpart F--Fee Schedule

                           General Provisions



Sec. 518.81  Authorities.

    The Freedom of Information Act (5 U.S.C. 552), as amended; by the 
Freedom of Information Reform Act of 1986; the Paperwork Reduction Act 
(44 U.S.C. 35); the Privacy Act of 1974 (5 U.S.C. 552a); the Budget and 
Accounting Act of 1921 (31 U.S.C. 1 et seq.); the Budget and Accounting 
Procedures Act (31 U.S.C. 67 et seq.); the Defense Authorization Act for 
FY 87, Section 954, (Pub. L. 99-661); as amended by the Defense 
Technical Corrections Act of 1987 (Pub. L. 100-26).



Sec. 518.82  Application.

    (a) The fees described in this subpart apply to FOIA requests, and 
conform to the Office of Management and Budget Uniform Freedom of 
Information Act Fee Schedule and Guidelines. They reflect direct costs 
for search, review (in the case of commercial requesters), and 
duplication of documents, collection of which is permitted by the FOIA. 
They are neither intended to imply that fees must be charged in 
connection with providing information to the public in the routine 
course of business, nor are they meant as a substitute for any other 
schedule of fees, such as DoD Instruction 7230.7 (reference (r)) (AR 37-
60), which does not supersede the collection of fees under the FOIA. 
Nothing in this Chapter shall supersede fees chargeable under a statute 
specifically providing for setting the level of fees for particular 
types of records. A ``statute specifically providing for setting the 
level of fees for particular types of records'' (5 U.S.C. 552 
(a)(4)(A)(vi)) means any statute that enables a Government Agency such 
as the Government Printing Office (GPO) or the National Technical 
Information Service (NTIS), to set and collect fees. Components should 
ensure that when documents that would be responsive to a request are 
maintained for distribution by agencies operating statutory-based fee 
schedule programs such as the GPO or NTIS, they inform requesters of the 
steps necessary to obtain records from those sources.
    (b) The term ``direct costs'' means those expenditures a Component 
actually makes in searching for, reviewing (in the case of commercial 
requesters), and duplicating documents to respond to an FOIA request. 
Direct costs include, or example, the salary of the employee performing 
the work (the basic rate of pay for the employee plus 16 percent of that 
rate to cover benefits), and the costs of operating duplicating 
machinery. These factors have been included in the fee rates prescribed 
in the Collection of Fees and Fee Rates portions of this subpart. Not 
included in direct costs are overhead expenses such as costs of space, 
heating or lighting the facility in which the records are stored.
    (c) The term ``search'' includes all time spent looking for material 
that is responsive to a request. Search also includes a page-by-page or 
line-by-line identification (if necessary) of material in the document 
to determine if it, or portions thereof are responsive to the request. 
Components should ensure that searches are done in the most efficient 
and least expensive manner so as to minimize costs for both the 
Component and the requester. For example, Components should not engage 
in line-

[[Page 175]]

by-line searches when duplicating an entire document known to contain 
responsive information would prove to be the less expensive and quicker 
method of complying with the request. Time spent reviewing documents in 
order to determine whether to apply one or more of the statutory 
exemptions is not search time, but review time. See Sec. 518.82(e), for 
the definition of review, and Sec. 518.90(b), for information pertaining 
to computer searches.
    (d) The term ``duplication'' refers to the process of making a copy 
of a document in response to an FOIA request. Such copies can take the 
form of paper copy, microfiche, audiovisual, or machine readable 
documentation (e.g., magnetic tape or disc), among others. Every effort 
will be made to ensure that the copy provided is in a form that is 
reasonably usable by requesters. If it is not possible to provide copies 
which are clearly usable, the requester shall be notified that their 
copy is the best available and that the agency's master copy shall be 
made available for review upon appointment. For duplication of computer 
tapes and audiovisual, the actual cost, including the operator's time, 
shall be charged. In practice, if a Component estimates that assessable 
duplication charges are likely to exceed $25.00, it shall notify the 
requester of the estimate, unless the requester has indicated in advance 
his or her willingness to pay fees as high as those anticipated. Such a 
notice shall offer a requester the opportunity to confer with Component 
personnel with the object of reformulating the request to meet his or 
her needs at a lower cost.
    (e) The term ``review'' refers to the process of examining documents 
located in response to an FOIA request to determine whether one or more 
of the statutory exemptions permit withholding. It also includes 
processing the documents for disclosure, such as excising them for 
release. Review does not include the time spent resolving general legal 
or policy issues regarding the application of exemptions. It should be 
noted that charges for commercial requesters may be assessed only for 
the initial review. Components may not charge for reviews required at 
the administrative appeal level of an exemption already applied. 
However, records or portions of records withheld in full under an 
exemption which is subsequently determined not to apply may be reviewed 
again to determine the applicability of other exemptions not previously 
considered. The costs for such a subsequent review would be properly 
assessable.



Sec. 518.83  Fee restrictions.

    (a) No fees may be charged by any DoD Component if the costs of 
routine collection and processing of the fee are likely to equal or 
exceed the amount of the fee. With the exception of requesters seeking 
documents for a commercial use, Components shall provide the first two 
hours of search time, and the first one hundred pages of duplication 
without charge. For example, for a request (other than one from a 
commercial requester) that involved two hours and ten minutes of search 
time, and resulted in one hundred and five pages of documents, a 
Component would determine the cost of only ten minutes of search time, 
and only five pages of reproduction. If this processing cost was equal 
to, or less than the cost to the Component for billing the requester and 
processing the fee collected, no charges would result.
    (b) Requesters receiving the first two hours of search and the first 
one hundred pages of duplication without charge are entitled to such 
only once per request. Consequently, if a Component, after completing 
its portion of a request, finds it necessary to refer the request to a 
subordinate office, another DoD Component, or another Federal Agency to 
action their portion of the request, the referring Component shall 
inform the recipient of the referral of the expended amount of search 
time and duplication cost to date.
    (c) The elements to be considered in determining the ``cost of 
collecting a fee'' are the administrative costs to the Component of 
receiving and recording a remittance, and processing the fee for deposit 
in the Department of Treasury's special account. The cost to the 
Department of Treasury to handle such remittance is negligible and shall 
not be considered in Components' determinations.

[[Page 176]]

    (d) For the purposes of these restrictions, the word ``pages'' 
refers to paper copies of a standard size, which will normally be ``8\1/
2\  x  11'' or ``11  x  14''. Thus, requesters would not be entitled to 
100 microfiche or 100 computer disks, for example. A microfiche 
containing the equivalent of 100 pages or 100 pages of computer 
printout, however, might meet the terms of the restriction.
    (e) In the case of computer searches, the first two free hours will 
be determined against the salary scale of the individual operating the 
computer for the purposes of the search. As an example, when the direct 
costs of the computer central processing unit, input-output devices, and 
memory capacity equal $24.00 (two hours of equivalent search at the 
clerical level), amounts of computer costs in excess of that amount are 
chargeable as computer search time.



Sec. 518.84  Fee waivers.

    (a) Documents shall be furnished without charge, or at a charge 
reduced below fees assessed to the categories of requesters in 
Sec. 518.81 when the Component determines that waiver or reduction of 
the fees is in the public interest because furnishing the information is 
likely to contribute significantly to public understanding of the 
operations or activities of the Department of Defense and is not 
primarily in the commercial interest of the requester.
    (b) When assessable costs for an FOIA request total $15.00 or less, 
fees shall be waived automatically for all requesters, regardless of 
category.
    (c) Decisions to waive or reduce fees that exceed the automatic 
waiver threshold shall be made on a case-by-case basis, consistent with 
the following factors:
    (1) Disclosure of the information ``is in the public interest 
because it is likely to contribute significantly to public understanding 
of the operations or activities of the government.''
    (i) The subject of the request. Components should analyze whether 
the subject matter of the request involves issues which will 
significantly contribute to the public understanding of the operations 
or activities of the Department of Defense. Requests for records in the 
possession of the Department of Defense which were originated by non-
government organizations and are sought for their intrinsic content, 
rather than informative value will likely not contribute to public 
understanding of the operations or activities of the Department of 
Defense. An example of such records might be press clippings, magazine 
articles, or records forwarding a particular opinion or concern from a 
member of the public regarding a DoD activity. Similarly, disclosures of 
records of considerable age may or may not bear directly on the current 
activities of the Department of Defense; however, the age of a 
particular record shall not be the sole criteria for denying relative 
significance under this factor. It is possible to envisage an 
informative issue concerning the current activities of the Department of 
Defense, based upon historical documentation. Requests of this nature 
must be closely reviewed consistent with the requester's stated purpose 
for desiring the records and the potential for public understanding of 
the operations and activities of the Department of Defense.
    (ii) The informative value of the Information to be disclosed. This 
factor requires a close analysis of the substantive contents of a 
record, or portion of the record, to determine whether disclosure is 
meaningful, and shall inform the public on the operations or activities 
of the Department of Defense. While the subject of a request may contain 
information which concerns operations or activities of the Department of 
Defense, it may not always hold great potential for contributing to a 
meaningful understanding of these operations or activities. An example 
of such would be a heavily redacted record, the balance of which may 
contain only random words, fragmented sentences, or paragraph headings. 
A determination as to whether a record in this situation will contribute 
to the public understanding of the operations or activities of the 
Department of Defense must be approached with caution, and carefully 
weighed against the arguments offered by the requester. Another example 
is information already known to be in the public domain. Disclosure of 
duplicative, or nearly identical information already

[[Page 177]]

existing in the public domain may add no meaningful new information 
concerning the operations and activities of the Department of Defense.
    (iii) The contribution to an understanding of the subject by the 
general public likely to result from disclosure. The key element in 
determining the applicability of this factor is whether disclosure will 
inform, or have the potential to inform the public, rather than simply 
the individual requester or small segment of interested persons.The 
identity of the requester is essential in this situation in order to 
determine whether such requester has the capability and intention to 
disseminate the information to the public. Mere assertions of plans to 
author a book, researching a particular subject, doing doctoral 
dissertation work, or indigency are insufficient without demonstrating 
the capacity to further disclose the information in a manner which will 
be informative to the general public. Requesters should be asked to 
describe their qualifications, the nature of their research, the purpose 
of the requested information, and their intended means of dissemination 
to the public.
    (iv) The significance of the contribution to public understanding. 
In applying this factor, Components must differentiate the relative 
significance or impact of the disclosure against the current level of 
public knowledge, or understanding which exists before the disclosure. 
In other words, will disclosure on a current subject of wide public 
interest be unique in contributing previously unknown facts, thereby 
enhancing public knowledge, or will it basically duplicate what is 
already known by the general public. A decision regarding significance 
requires objective judgment, rather than subjective determination, and 
must be applied carefully to determine whether disclosure will likely 
lead to a significant public understanding of the issue. Components 
shall not make value judgments as to whether the information is 
important enough to be made public.
    (2) Disclosure of the information ``is not primarily in the 
commercial interest of the requester.''
    (i) The existence and magnitude of a commercial interest. If the 
request is determined to be of a commercial interest, Components should 
address the magnitude of that interest to determine if the requester's 
commercial interest is primary, as opposed to any secondary personal or 
non-commercial interest. In addition to profit-making organizations, 
individual persons or other organizations may have a commercial interest 
in obtaining certain records. Where it is difficult to determine whether 
the requester is of a commercial nature, Components may draw inference 
from the requester's identity and circumstances of the request. In such 
situations, the provisions of Sec. 518.85 apply. Components are reminded 
that in order to apply the commercial standards of the FOIA, the 
requester's commercial benefits must clearly override any personal or 
non-profit interest.
    (ii) The primary interest in disclosure. Once a requester's 
commercial interest has been determined, Components should then 
determine if the disclosure would be primarily in that interest. This 
requires a balancing test between the commercial interest of the request 
against any public benefit to be derived as a result of that disclosure. 
Where the public interest is served above and beyond that of the 
requester's commercial interest, a waiver or reduction of fees would be 
appropriate. Conversely, even if a significant public interest exists, 
and the relative commercial interest of the requester is determined to 
be greater than the public interest, then a waiver or reduction of fees 
would be inappropriate. As examples, news media organizations have a 
commercial interest as business organizations; however, their inherent 
role of disseminating news to the general public can ordinarily be 
presumed to be of a primary interest. Therefore, any commercial interest 
becomes secondary to the primary interest in serving the public. 
Similarly, scholars writing books or engaged in other forms of academic 
research, may recognize a commercial benefit, either directly, or 
indirectly (through the institution they represent); however, normally 
such pursuits are primarily undertaken for educational purposes, and the 
application of a fee charge would

[[Page 178]]

be inappropriate. Conversely, data brokers or others who merely compile 
government information for marketing can normally be presumed to have an 
interest primarily of a commercial nature.
    (d) Components are reminded that the above factors and examples are 
not all inclusive. Each fee decision must be considered on a case-by-
case basis and upon the merits of the information provided in each 
request. When the element of doubt as to whether to charge or waive the 
fee cannot be clearly resolved, Components should rule in favor of the 
requester.
    (e) In addition, the following additional circumstances describe 
situations where waiver or reduction of fees are most likely to be 
warranted:
    (1) A record is voluntarily created to preclude an otherwise 
burdensome effort to provide voluminous amounts of available records, 
including additional information not requested.
    (2) A previous denial of records is reversed in total, or in part, 
and the assessable costs are not substantial (e.g. $15.00--$30.00).



Sec. 518.85  Fee assessment.

    (a) Fees may not be used to discourage requesters, and to this end, 
FOIA fees are limited to standard charges for direct document search, 
review (in the case of commercial requesters) and duplication.
    (b) In order to be as responsive as possible to FOIA requests while 
minimizing unwarranted costs to the taxpayer, Components shall adhere to 
the following procedures:
    (1) Analyze each request to determine the category of the requester. 
If the Component determination regarding the category of the requester 
is different than that claimed by the requester, the component will:
    (i) Notify the requester that he should provide additional 
justification to warrant the category claimed, and that a search for 
responsive records will not be initiated until agreement has been 
attained relative to the category of the requester. Absent further 
category justification from the requester, and within a reasonable 
period of time (i.e., 30 calendar days), the Component shall render a 
final category determination, and notify the requester of such 
determination, to include normal administrative appeal rights of the 
determination.
    (ii) Advise the requester that, notwithstanding any appeal, a search 
for responsive records will not be initiated until the requester 
indicates a willingness to pay assessable costs appropriate for the 
category determined by the Component.
    (2) Requesters must submit a fee declaration appropriate for the 
below categories.
    (i) Commercial. Requesters must indicate a willingness to pay all 
search, review and duplication costs.
    (ii) Education or Noncommercial Scientific Institution or News 
Media. Requesters must indicate a willingness to pay duplication charges 
in excess of 100 pages if more than 100 pages of records are desired.
    (iii) All Others. Requesters must indicate a willingness to pay 
assessable search and duplication costs if more than two hours of search 
effort or 100 pages of records are desired.
    (3) If the above conditions are not met, then the request need not 
be processed and the requester shall be so informed.
    (4) In the situation described by Sec. 518.81(b) (1) and (2). 
Components must be prepared to provide an estimate of assessable fees if 
desired by the requester. While it is recognized that search situations 
will vary among Components, and that an estimate is often difficult to 
obtain prior to an actual search, requesters who desire estimates are 
entitled to such before committing to a willingness to pay. Should 
Component estimates exceed the actual amount of the estimate or the 
amount agreed to by the requester, the amount in excess of the estimate 
or the requester's agreed amount shall not be charged without the 
requester's agreement.
    (5) No DoD Component may require advance payment of any fee; i.e., 
payment before work is commenced or continued on a request, unless the 
requester has previously failed to pay fees in a timely fashion, or the 
agency has determined that the fee will exceed $250.00. As used in this 
sense, a timely fashion is 30 calendar days from the

[[Page 179]]

date of billing (the fees have been assessed in writing) by the 
Component.
    (6) Where a Component estimates or determines that allowable charges 
that a requester may be required to pay are likely to exceed $250.00, 
the Component shall notify the requester of the likely cost and obtain 
satisfactory assurance of full payment where the requester has a history 
of prompt payments, or require an advance payment of an amount up to the 
full estimated charges in the case of requesters with no history of 
payment.
    (7) Where a requester has previously failed to pay a fee charged in 
a timely fashion (i.e., within 30 calendar days from the date of the 
billing), the Component may require the requester to pay the full amount 
owed, plus any applicable interest, or demonstrate that he has paid the 
fee, and to make an advance payment of the full amount of the estimated 
fee before the Component begins to process a new or pending request from 
the requester. Interest will be at the rate prescribed in 31 U.S.C. 3717 
(reference (ff)), and confirmed with respective Finance and Accounting 
Offices.
    (8) After all work is completed on a request, and the documents are 
ready for release, Components may request payment prior to forwarding 
the documents if there is no payment history on the requester, or if the 
requester has previously failed to pay a fee in a timely fashion (i.e., 
within 30 calendar days from the date of the billing). In the case of 
the latter, the provisions of Sec. 518.85(b)(7), apply. Components may 
not hold documents ready for release pending payment from requesters 
with a history of prompt payment.
    (9) When Components act under Sec. 518.85, (a)(1) through (a)(7), of 
this part, the administrative time limits of the FOIA (i.e., 10 working 
days from receipt of initial requests, and 20 working days from receipt 
of appeals, plus permissible extensions of these time limits) will begin 
only after the Component has received a willingness to pay fees and 
satisfaction as to category determination, or fee payments (if 
appropriate).
    (10) Components may charge for time spent searching for records, 
even if that search fails to locate records responsive to the request. 
Components may also charge search and review (in the case of commercial 
requesters) time if records located are determined to be search charges 
are likely to exceed $25,000 it shall notify the requester of the 
estimated amount of fees, unless the requester has indicated in advance 
his or her willingness to pay fees as high as those anticipated. Such a 
notice shall offer the requester the opportunity to confer with 
Component personnel with the object of reformulating the request to meet 
his or her needs at a lower cost.
    (c) Commercial Requesters. Fees shall be limited to reasonable 
standard charges for document search, review and duplication when 
records are requested for commercial use. Requesters must reasonably 
describe the records sought (see Sec. 518.26).
    (1) the term ``commercial use'' request refers to a request from, or 
on behalf of one who seeks information for a use or purpose that 
furthers the commercial, trade, or profit interest of the requester or 
the person on whose behalf the request is made. In determining whether a 
requester properly belongs in this category, Component must determine 
the use to which a requester will put the documents requested. Moreover, 
where a Components has reasonable cause to doubt the use to which a 
requester will put the records sought, or where that use is not clear 
from the request itself, Components should seek additional clarification 
before assigning the request to a specific category.
    (2) When Components receive a request for documents for commercial 
use, they should assess charges which recover the full direct costs of 
searching for, reviewing for release, and duplicating the record sought. 
Commercial requesters (unlike other requesters) are not entitled to two 
hours of free search time, nor 100 free pages of reproduction of 
documents. Moreover, commercial requesters are not normally entitled to 
a waiver or reduction of fees based upon an assertion that disclosure 
would be in the public interest. However, because use is the exclusive 
determining criteria, it is possible to envision a commercial enterprise

[[Page 180]]

making a request that is not for commercial use. It is also possible 
that a non-profit organization could make a request that is for 
commercial use. Such situations must be addressed on a case-by-case 
basis.
    (d) Educational Institution Requesters. Fees shall be limited to 
only reasonable standard charges for document duplication (excluding 
charges for the first 100 pages) when the request is made by an 
educational institution whose purpose is scholarly research. Requesters 
must reasonably describe the record sought (see Sec. 518.26). The term 
``educational institution'' refers to a pre-school, a public or private 
elementary or secondary school, an institution of graduate higher 
education, an institution of undergraduate higher education, an 
institution of professional education, and an institution of vocational 
education, which operates a program or programs of scholarly research.
    (e) Non-Commercial Scientific Institution Requesters. Fees shall be 
limited to only reasonable standard charges for document duplication 
(excluding charges for the first 100 pages) when the request is made by 
a non-commercial scientific institution whose purpose is scientific 
research. Requesters must reasonably describe the records sought (see 
Sec. 518.26). The term ``non-commercial scientific institution'' refers 
to an institution that is not operated on a ``commercial'' basis as 
defined in Sec. 518.81(c) and which is operated solely for the purpose 
of conducting scientific research, the results of which are not intended 
to promote any particular product or industry.
    (f) Components shall provide documents to requesters in Sec. 518.85 
(d) and (e), for the cost of duplication alone, excluding charges for 
the first 100 pages. To be eligible for inclusion in these categories, 
requesters must show that the request is being made under the auspices 
of a qualifying institution and that the records are not sought for 
commercial use, but in furtherance of scholarly (from an educational 
institution) or scientific (from a non-commercial scientific 
institution) research.
    (g) Representatives of the news media. Fees shall be limited to only 
reasonable standard charges for document duplication (excluding charges 
for the first 100 pages) when the request is made by a representative of 
the news media. Requesters must reasonably describe the records sought 
(see Sec. 518.26).
    (1) The term ``representative of the news media'' refers to any 
person actively gathering news for an entity that is organized and 
operated to publish or broadcast news to the public. The term ``news'' 
means information that is about current events or that would be of 
current interest to the public. Example of news media entities include 
television or radio stations broadcasting to the public at large, and 
publishers of periodicals (but only in those instances when they can 
qualify as disseminators of ``news'') who make their products available 
for purchase or subscription by the general public. These examples are 
not meant to be all-inclusive. Moreover, as traditional methods of news 
delivery evolve (e.g., electronic dissemination of newspapers through 
telecommunications services), such alternative media would be included 
in this category. In the case of ``freelance'' journalists, they may be 
regarded as working for a news organization if they can demonstrate a 
solid basis for expecting publication through that organization, even 
though not actually employed by it. A publication contract would be the 
clearest proof, but Components may also look to the past publication 
record of a requester in making this determination.
    (2) To be eligible for inclusion in this category, a requester must 
meet the criteria in Sec. 518.85(g)(1) and his or her request must not 
be made for commercial use. A request for records supporting the news 
dissemination function of the requester shall not be considered to be a 
request that is for a commercial use. For example, a document request by 
a newspaper for records relating to the investigation of a defendant in 
a current criminal trial of public interest could be presumed to be a 
request from an entity eligible for inclusion in this category, and 
entitled to records at the cost of reproduction alone (excluding charges 
for the first 100 pages).

[[Page 181]]

    (3) ``Representative of the news media'' does not include private 
libraries, private repositories of Government records, or middlemen, 
such as information vendors or data brokers.
    (h) All Other Requesters. Components shall charge requesters who do 
not fit into any of the above categories, fees which recover the full 
direct cost of searching for and duplicating records, except that the 
first two hours of search time and the first 100 pages of duplication 
shall be furnished without charge. Requesters must reasonably describe 
the records sought (see Sec. 518.26). Requests from subjects about 
themselves will continue to be treated under the fee provisions of the 
Privacy Act of 1974 (reference (ff)), which permit fees only for 
duplication. Components are reminded that this category of requester may 
also be eligible for a waiver or reduction of fees if disclosure of the 
information is in the public interest as defined under Sec. 518.84(a). 
(See also Sec. 518.85(c)(2).DD Form 2086 (Record of Freedom of 
Information (FOI) Processing Cost) will be used to annotate fees for 
processing FOIA information. The form is available through normal 
publications channels.

[56 FR 48932, Sept. 26, 1991, as amended at 56 FR 56010, Oct. 31, 1991]



Sec. 518.86  Aggregating requests.

    Except for requests that are for a commercial use, a Component may 
not charge for the first two hours of search time or for the first 100 
pages of reproduction. However, a requester may not file multiple 
requests at the same time, each seeking portions of a document or 
documents, solely in order to avoid payment of fees. When a Component 
reasonably believes that a requester or, on rare occasions, a group of 
requesters acting in concert, is attempting to break a request down into 
a series of requests for the purpose of avoiding the assessment of fees, 
the agency may aggregate any such requests and charge accordingly. One 
element to be considered in determining whether a belief would be 
reasonable is the time period in which the requests have occurred. For 
example, it would be reasonable to presume that multiple requests of 
this type made within a 30 day period had been made to avoid fees. For 
requests made over a longer period, however, such a presumption becomes 
harder to sustain and Components should have a solid basis for 
determining that aggregation is warranted in such cases. Components are 
cautioned that before aggregating requests from more than one requester, 
they must have a concrete basis on which to conclude that the requesters 
are acting in concert and are acting specifically to avoid payment of 
fees. In no case may Components aggregate multiple requests on unrelated 
subjects from one requester.



Sec. 518.87  Effect of the Debt Collection Act of 1982 (Pub. L. 97-365).

    The Debt Collection Act of 1982 (Pub. L. 97-365) provides for a 
minimum annual rate of interest to be charged on overdue debts owed the 
Federal Government. Components may levy this interest penalty for any 
fees that remain outstanding 30 calendar days from the date of billing 
(the first demand notice) to the requester of the amount owed. The 
interest rate shall be as prescribed in 31 U.S.C. 3717 (reference (ff)). 
Components should verify the current interest rate with respective 
Finance and Accounting Offices. After one demand letter has been sent, 
and 30 calendar days have lapsed with no payment, Components may submit 
the debt to respective Finance and Accounting Offices for collection 
pursuant to the Debt Collection Act of 1982.



Sec. 518.88  Computation of fees.

    The fee schedule in this chapter shall be used to compute the 
search, review (in the case of commercial requesters) and duplication 
costs associated with processing a given FOIA request. Costs shall be 
computed on time actually spent. Neither time-based nor dollar-based 
minimum charges for search, review and duplication are authorized.

                    Collection of Fees and Fee Rates



Sec. 518.89  Collection of fees.

    Collection of fees will be made at the time of providing the 
documents to the requester or recipient when the requester specifically 
states that the costs involved shall be acceptable or

[[Page 182]]

acceptable up to a specified limit that covers the anticipated costs. 
Collection of fees may not be made in advance unless the requester has 
failed to pay previously assessed fees within 30 calendar days from the 
date of the billing by the DoD Component, or the Component has 
determined that the fee will be in excess of $250 (see Sec. 518.81).



Sec. 518.90  Search time.

    (a) Manual search.

------------------------------------------------------------------------
                                                                 Hourly
                 Type                           Grade           rate ($)
------------------------------------------------------------------------
Clerical.............................  E9/GS8 and below.......        12
Professional.........................  01-06/GS9-GS/GM15......        25
Executive............................  07/GS/GM16/ES1 and             45
                                        above.
------------------------------------------------------------------------

    (b) Computer search. Computer search is based on direct cost of the 
central processing unit, input-output devices, and money capacity of the 
actual computer configuration. The salary scale (equating to paragraph a 
above) for the computer operator/programmer determining how to conduct 
and subsequently executing the search will be recorded as part of the 
computer search.



Sec. 518.91  Duplication.

------------------------------------------------------------------------
                   Type                         Cost per page (cents)
------------------------------------------------------------------------
Pre-Printed material......................  02.
Office copy...............................  15.
Microfiche................................  25.
Computer copies (tapes or printouts)......  Actual cost of duplicating
                                             the tape or printout
                                             (includes operator's time
                                             and cost of the tape).
------------------------------------------------------------------------



Sec. 518.92  Review time (in the case of commercial requesters).

------------------------------------------------------------------------
                                                                 Hourly
                 Type                           Grade           rate ($)
------------------------------------------------------------------------
Clerical.............................  E9/GS8 and below.......        12
Professional.........................  01-06/GS9-GS15.........        25
Executive............................  07/GS16/ES1 and above..        45
------------------------------------------------------------------------



Sec. 518.93  Audiovisual documentary materials.

    Search costs are computed as for any other record. Duplication cost 
is the actual direct cost of reproducing the material, including the 
wage of the person doing the work. Audiovisual materials provided to a 
requester need not be in reproducible format or quality. Army 
audiovisual materials are referred to as ``visual information.''



Sec. 518.94  Other records.

    Direct search and duplication cost for any record not described 
above shall be computed in the manner described for audiovisual 
documentary material.



Sec. 518.95  Costs for special services.

    Complying with requests for special services is at the discretion of 
the Components. Neither the FOIA, nor its fee structure cover these 
kinds of services. Therefore, Components may recover the costs of 
special services requested by the requester after agreement has been 
obtained in writing from the requester to pay for one or more of the 
following services:
    (a) Certifying that records are true copies.
    (b) Sending records by special methods such as express mail, etc.

           Collection of Fees and Fee Rates for Technical Data



Sec. 518.96  Fees for technical data.

    (a) Technical data, other than technical data that discloses 
critical technology with military or space application, if required to 
be released under the FOIA, shall be released after the person 
requesting such technical data pays all reasonable costs attributed to 
search, duplication and review of the records to be released. Technical 
data, as used in this Section, means recorded information, regardless of 
the form or method of the recording of a scientific or technical nature 
(including computer software documentation). This term does not include 
computer software, or data incidental to contract administration, such 
as financial and/or management information. DoD Components shall retain 
the amounts received by such a release, and it shall be merged with and 
available for the same purpose and the same time period as the 
appropriation from which the costs were incurred in complying with 
request. All reasonable costs as used in this sense are the full costs 
to the Federal Government of rendering the service, or fair market value 
of the service, whichever is higher. Fair market value shall be 
determined in accordance with commercial rates in the local geographical 
area. In the absence of a

[[Page 183]]

known market value, charges shall be based on recovery of full costs to 
the Federal Government. The full cost shall include all direct and 
indirect costs to conduct the search and to duplicate the records 
responsive to the request. This cost is to be differentiated from the 
direct costs allowable under the Collection of Fees and Fee Rates 
portion of this subpart for other types of information released under 
the FOIA. DD Form 2086-1 (Record of Freedom of Information (FOI) 
Processing Cost for Technical Data) will be used to annotate fees for 
technical data. The form is available through normal publications 
channels.
    (b) Waiver. Components shall waive the payment of costs required in 
Sec. 518.96(a), which are greater than the costs that would be required 
for release of this same information under the Collection of Fees and 
Fee Rates portion of this subpart if:
    (1) The request is made by a citizen of the United States or a 
United States corporation, and such citizen or corporation certifies 
that the technical data requested is required to enable it to submit an 
offer, or determine whether it is capable of submitting an offer to 
provide the product to which the technical data relates to the United 
States or a contractor with the United States. However, Components may 
require the citizen or corporation to pay a deposit in an amount equal 
to not more than the cost of complying with the request, which will be 
refunded upon submission of an offer by the citizen or corporation;
    (2) The release of technical data is requested in order to comply 
with the terms of an international agreement; or,
    (3) The Component determines in accordance with Sec. 518.80(a), that 
such a waiver is in the interest of the United States.
    (c) Fee Rates.
    (1) Search time. (i) Manual Search.

------------------------------------------------------------------------
                                                                 Hourly
                 Type                           Grade           rate ($)
------------------------------------------------------------------------
Clerical.............................  E9/GS8 and below.......     13.25
(Minimum Charge).....................  .......................      8.30
------------------------------------------------------------------------

    Professional and Executive (To be established at actual hourly rate 
prior to search. A minimum charge will be established at \1/2\ hourly 
rates.)
    (ii) Computer search is based on the total cost of the central 
processing unit, input-output devices, and memory capacity of the actual 
computer configuration. The wage (based upon the scale in 
Sec. 518.96(c)(1)(i), for the computer operator and/or programmer 
determining how to conduct, and subsequently executing the search will 
be recorded as part of the computer search.
    (2) Duplication.

------------------------------------------------------------------------
                              Type                                 Cost
------------------------------------------------------------------------
Aerial photographs, specifications, permits, charts,               $2.50
 blueprints, and other technical documents.....................
Engineering data (microfilm):
  Aperture cards:
    Silver duplicate negative, per card........................      .75
    When key punched and verified, per card....................      .85
    Diazo duplicate negative, per card.........................      .65
    When key punched and verified, per card....................      .75
    35mm roll film, per frame..................................      .50
    16mm roll film, per frame..................................      .45
    Paper daprints (engineering drawings), each................     1.50
    Paper reprints of microfilm indices, each..................      .10
------------------------------------------------------------------------

    (3) Review time.

------------------------------------------------------------------------
                                                                 Hourly
                 Type                           Grade           rate ($)
------------------------------------------------------------------------
Clerical.............................  E9/GS8 and below.......     13.25
(Minimum Charge).....................  .......................      8.30
------------------------------------------------------------------------

    Professional and Executive (To be established at actual hourly rate 
prior to review. A minimum charge will be established at \1/21\ hourly 
rates.)
    (d) Other technical data records. Charges for additional services 
not specifically provided in Sec. 518.96(c), consistent with DoD 
Instruction 7230.7 (reference (r)), shall be made by Components at the 
following rates:

1. Minimum charge for office copy (up to six images)...........    $3.50
2. Each additional image.......................................      .10
3. Each typewritten page.......................................     3.50
4. Certification and validation with seal, each................     5.20
5. Hand-drawn plots and sketches, each hour or fraction thereof    12.00
 


[[Page 184]]



                           Subpart G--Reports

                             Reports Control



Sec. 518.97  General.

    The reporting requirement outlined in this subpart is assigned 
Report Control Symbol DD-PA(A) 1365. See appendix F for DD Form 2564, 
Annual Report Freedom of Information Act.

                              Annual Report



Sec. 518.98  Reporting time.

    Each DoD Component shall prepare statistics and accumulate paperwork 
for the preceding calendar year on those times prescribed for the annual 
report and submit them in duplicate to the ASD(PA) on or before each 
February 1. Existing DoD standards and registered data elements are to 
be used for all data requirements to the greatest extent possible in 
accordance with the provisions of DoD Directive 5000.11 (reference(s)) 
AR 25-9. The standard data elements are contained in DoD Directive 
5000.12-M (reference (99)). The Army will follow guidelines below and 
submit the information to the Army Freedom of Information and Privacy 
Act Division, Information Systems Command, Attn: ASQNS-OP-F, Room 1146, 
Hoffman Building I, Alexandria, VA 22331-0301 by the second week of each 
January.
    (a) Each reporting activity will submit the information requested in 
Sec. 518.99, items (a)(1), (a)(2), (a)(5), (a)(6), (b)(3), (i), (j)(l), 
(j)(2) and (j)(2)(i). Data will be collected throughout the year on DD 
Form 2086.
    (b) Each IDA will submit the information requested in Sec. 518.99, 
excluding items (d) through (h).
    (c) The Judge Advocate General, Army, will submit the information 
requested in Sec. 518.99, item (9).
    (d) The Army General Counsel will submit the information requested 
in Sec. 518.99, items (d) through (f).
    (e) The Information Systems Command will compile the data submitted 
in the Department of the Army's annual Reporting of Freedom of 
Information Processing Costs (RCS DD-PA(A) 1365). This report will be 
coordinated through the DISC4 (SAIS-PDC), WASH DC 20310-0107, to the 
Director of Freedom of Information and Security Review by 31 January 
each year.



Sec. 518.99  Annual report content.

    The following instructions shall be used in preparing the annual 
report for submission on DD Form 2564 (see appendix G to this part). DD 
Form 2564 may be ordered through publication channels or reproduced 
locally:
    (a) Item 1.
    (1) Total requests. Enter the total number of FOIA requests 
responded to during the calendar year.
    (2) Granted in full. Enter the total number of FOIA requests 
responded to and granted in full during the calendar year. (This may 
include requests granted by your office, yet still requiring action by 
another office).
    (3) Denied in part. Enter the total number of FOIA requests 
responded to and denied in part based on one or more of the nine FOIA 
exemptions. (Do not report denial of fee waivers).
    (4) Denied in full. Enter the total number of FOIA requests 
responded to and denied in full based on one or more of the nine FOIA 
exceptions. (Do not report denial of fee waivers).
    (5) ``Other Reason'' responses. Enter the total number of FOIA 
requests in which you were unable to provide all or part of the 
requested information based on an ``Other Reason'' response. Item (b)(3) 
of this section explains the six possible ``Other Reasons''.
    (6) Total actions. Enter the total number of FOIA actions taken 
during the calendar year. This number will be the sum of paragraphs 
(a)(2) through (a)(5) of this section.
    (b) Item 2.
    (1) Exemptions invoked on initial determinations. Enter the number 
of times an exemption was claimed for each request that was denied in 
full or in part. Since more than one exemption may be claimed when 
responding to a single request, this number will be equal to or greater 
than the sum of paragraphs (a)(3) and (a)(4) of this section.
    (2) b(3) Status invoked on initial determinations. Identify the 
statutes cited and number of times invoked when you claim a (b)(3) 
exemption. The total number of instances will be equal to

[[Page 185]]

the total in paragraph (b)(1) of this section. Cite the specific 
sections when invoking the Atomic Energy of 1954 or the National 
Security Act of 1947. To qualify as a b(3) exemption, the statute must 
contain clear wording that the information covered will not be 
disclosed. The following examples are not b(3) statutes:
    (i) 5 U.S.C. 552a--Privacy Act.
    (ii) 17 U.S.C. 101 et. seq.--Copyright Act.
    (iii) 18 U.S.C. 793--Gathering, Transmitting or Losing Defense 
Information.
    (iv) 18 U.S.C. 794--Gathering or Delivering Defense Information to 
Aid Foreign Governments.
    (v) 18 U.S.C. 1905--Trade Secrets Act.
    (vi) U.S.C. 1498--Patent and Copyright Cases.
    (3) ``Other Reasons'' cited on initial determinations. Identify the 
``Other Reasons'' response cited when responding to a FOIA request and 
enter the number of times each was claimed.
    (i) Transferred request. Enter the number of times a request was 
transferred to another DoD Component or Federal Agency for action.
    (ii) Lack of records. Enter the number of times a search of files 
failed to identify records responsive to subject request and there was 
no statutory obligations to create a record.
    (iii) Failure of requester to reasonably describe record. Enter the 
number of times a FOIA request could not be acted upon since the 
requester failed to reasonably describe the record(s) being sought.
    (iv) Other failures by requester to comply with published rules and/
or directives. Enter the number of times a requester failed to follow 
published rules concerning time, place, fees, and procedures.
    (v) Request withdrawn by requester. Enter the number of times a 
requester withdrew a request and/or appeal.
    (vi) Not an agency record. Enter the number of times a requester was 
provided a request indicating the requested information was not an 
agency record.
    (vii) Total. Enter the sum of paragraphs (b)(3) (i) through (vi) of 
this section. This number will be equal to or greater than the number in 
paragraph (a)(5) of this section, since more than one reason may be 
claimed for each ``Other Reason'' response.
    (c) Item. 3.
    Initial denial authorities by participation. Enter the name, rank 
(if military), title, and activity of each individual who signed a 
partial or total denial response and give the number of instances of 
participation. The total number of instances will equal the sum of 
paragraphs (a)(3) and (a)(4) of this section. Show the individual's full 
title and complete organization (do not use acronyms or abbreviations, 
other than U.S.) See example below.

Smith, John G. BG Director, Personnel and Administration, 6 U.S. 
          European Command

    (d) Item 4.
    (1) Total requests. Enter the total number of FOIA appeals responded 
to during the calendar year.
    (2) Granted in full. Enter the total number of FOIA appeals 
responded to and granted in full during the year.
    (3) Denied in part. Enter the total number of FOIA appeals responded 
to and denied in part based on one or more of the nine FOIA exemptions.
    (4) Denied in full. Enter the total number of FOIA appeals responded 
to and denied in full based on one or more of the nine FOIA requests.
    (5) ``Other Reason'' responses. Enter the total number of FOIA 
appeals in which you were unable to provide the requested information 
based on ``Other Reason'' response. Item (b)(3) of this section explains 
the six possible ``Other Reasons.''
    (6) Total actions. Enter the total number of FOIA appeal actions 
taken during the calendar year. This number will be the sum of 
paragraphs (d)(2) and (d)(5) of this section.
    (e) Item 5.
    (1) Exemptions invoked on appeal determinations. Enter the number of 
times an exemption was claimed for each appeal that was denied in full 
or in part. Since more than one exemption may be claimed when responding 
to a single request, this number will be equal to or greater than the 
sum of paragraphs (d)(3) and (d)(4) of this section.
    (2) b(3) Statutes invoked on appeal determinations. Identify the 
statutes cited and number of times invoked when you claimed a(b)(3) 
exemption. The total

[[Page 186]]

number of instances will be equal to the total in paragraph (e)(1) of 
this section. Cite the specific sections when invoking the Atomic Energy 
Act of 1954 or the National Security Act of 1947. To qualify as a b(3) 
exemption, the statute must contain clear wording that the information 
covered will not be disclosed. Examples which are not b(3) statues are 
listed in paragraph (b)(2) of this section.
    (3) ``Other Reasons'' cited on appeal determinations. Identify the 
``Other Reasons'' response cited when responding to a FOIA appeal and 
enter the number of times each was claimed. See paragraph (b)(3) of this 
section for description of ``Other Reasons''.
    (f) Item 6.
    Appeal denial authorities by participation. Enter the name, rank (if 
military), title, and activity of each individual who signed a partial 
or total appeal denial response and give the number of instances of 
participation. The total number of instances will equal the sum of 
paragraphs (d)(3) and (d)(4) of this section. Show the full title and 
complete organization (do not use acronyms or abbreviations, other than 
U.S.). See Item 3 of this section for example.
    (g) Item 7.
    Court opinions and actions taken. Briefly describe the results of 
each suit the Judge Advocate General and/or the General Counsel 
participated in during the calendar year. See following example:

Armed Forces Relief and Benefit Association v. Department of Defense, 
          Department of the Army, Department of the Air Force, and 
          Department of the Navy. C.A. 89-0689, U.S.D.C.D.C., March 15, 
          1989. Plaintiff filed suit for defendent's refusal to release 
          serviceman's name and duty address. Information was held 
          pursuant to 5 U.S.C. 552 (b)(2) and (b)(6). Plaintiff 
          voluntarily dismissed suit June 19, 1989.

    (h) Item 8.
    FOIA implementation rules and regulations. List all changes or 
revisions of FOIA rules or regulations affecting the implementation of 
the FOIA program, followed by the Federal Register reference (volume 
number, date, and page) that announces the change of revision to the 
public. Append a copy of each. See following example:

DoD Regulation 5400.7-R ``DoD Freedom of Information Act Program''--32 
          CFR 286, Vol. 54, No. 155, pg. 33190, 14 August 1989.

    (i) Item 9.
    Fee collected from the public. Enter the total amount of fees 
collected from the public during the calendar year. This includes 
search, review, and reproduction costs only.
    (j) Item 10.
    (1) Availability of records. Reports all new categories or 
segregable positions of records now being released upon request.
    (2) FOI Program costs.
    (i) Personnel costs. Items (b) and (c) of this section are used to 
captured manyears and salary costs of personnel primarily involved in 
planning, program management and/or administrative handling of FOIA 
requests. Determine salaries for military personnel by using the 
Composite Standard Pay rates (DoD 7229.9-M, Department of Defense 
Accounting Manual). For civilian personnel use Office of Personnel 
Management salary table and add 16 percent for benefits. A sample 
computation is shown as follows. Table G-1 shows how the cost 
computation is made.

                     Table G-1.--Sample Computation
------------------------------------------------------------------------
                                 No. of             Percentage
            Grade              personnel   Salary     of time     Costs
------------------------------------------------------------------------
O-5..........................         1    $88,463         10     $8,846
O-1..........................         1     37,219         30     11,165
GS-12........................         1     41,557         50     20.799
                                                   ---------------------
    Total....................  .........  ........         90     40,790
------------------------------------------------------------------------
Notes:
1. To determine the manyear computation: Add the total percentages of
  time and divide the percentage by 100.
2. Sample Computation: Manyears=140% divided by 100=1.4 manyears.

    (a) Estimated manyears. Add the total percentages of time for 
personnel involved in administering the FOI program and divide by 100. 
In the example shown above, (10+30+50)/100=.9 manyears.
    (b) Manyear costs. Total costs associated with salaries of 
individuals involved in administering FOIA program. In the example shown 
above, the total cost is $40,790.
    (c) Estimated manhour costs by Category. This section accounts for 
all other personnel not reported in (a) and (b) of this section who are 
involved in processing FOIA requests. Enter the total hourly cost for 
each of the five areas described below.
    (1) Search time. This includes only those direct costs associated 
with the time spent

[[Page 187]]

looking for material that is responsive to a request, including line by 
line identification of material within a document to determine if it is 
responsive to the request. Searches may be done manually or by computer 
using existing programming.
    (2) Review and existing. This includes all direct costs incurred 
during the process of examining documents located in response to a 
request to determine whether any portion of any document located is 
permitted to be withheld. It also includes excising document to prepare 
them for release. It does not include time spent resolving general legal 
or policy issues regarding the applications of exemptions.
    (3) Coordination and approval. This includes all costs involved in 
coordinating the release/denial of documents requested under the FOIA.
    (4) Correspondence/form preparation. This includes all costs 
involved in typing responses, filling out forms, etc., to respond to a 
FOIA request.
    (5) Other activities. This includes all other processing costs not 
covered above, such as processing time by the mail room.
    (6) Total. Enter the sum of (c)(1) through (c)(5) of this section.
    (d) Overhead. This is the cost of supervision, space, and 
administrative support. It is computed as 25% of the sum of (b) and (c) 
of this section.
    (e) Total. (1) Enter the sum of (b), (c), and (d) of this section.
    (2) Other case-related costs. Using the fee schedule, enter the 
total amounts incurred in each of the areas below.
    (i) Computer search time. This includes costs of central processing 
unit, input/output devices, memory, etc., of the computer system used, 
as well as the wage of the machine's operator/programmer.
    (ii) Office copy reproduction. This includes the cost of reproducing 
normal documents with office copying equipment.
    (iii) Microfiche reproduction. This includes the cost of reproducing 
normal documents with office copying equipment.
    (iv) Printed records. This is the cost of providing reproduced 
copies of forms, publications, or reports.
    (v) Computer copy. This is the actual cost of duplicating magnetic 
tapes, floppy diskettes, computer printouts, etc.
    (vi) Audiovisual materials. This is the actual cost of duplicating 
audio or video tapes or like materials, to include the wage of the 
person doing the work.
    (vii) Other. Reports all other costs which are easily identifiable, 
such as per diem, operation of courier vehicles, training courses, 
printing (indexes and forms), long distance telephone calls, special 
mail services, use of indicia, etc.
    (viii) Subtotal. Enter the sum of (e)(2)(i) through (vii) of this 
section.
    (ix) Overhead. This is the cost of supervision, space and 
administrative support. It is computed as 25% of (e)(2)(viii) of this 
section.
    (x) Total. Enter the sum of (e)(2)(viii) and (ix) of this section.
    (3) Cost of routing requests processed. This item optional. Some 
reporting activities may find it economical to develop an average cost 
factor for processing repetitive routine requests rather than tracking 
costs on each request as it is processed. Care should be exercised so 
that costs are comprehensive to include a 25% overhead, yet not 
duplicated elsewhere in the report. Multiply the number of routine 
requests processed items the cost factor to compute this amount.
    (4) Total costs. Enter the sum of (1) through (3) of this section.
    (f) Format time limit extension. Enter the total number of instances 
in which it was necessary to seek a formal 10 working day time extension 
for one of the reasons explained as follows:
    (1) Location. The need to search for and collect the requested 
records from another activity that as separate from the office 
processing the request.
    (2) Volume. the need to search for, collect, and appropriately 
examine a voluminous amount of separate and distinct records in a single 
request.
    (3) Consultation. The need for consultation with another agency 
having a substantial interest in the material requested.
    (4) Court involvement. Where court actions were taken on the basis 
of exhaustion of administrative procedures because the department/
activity was unable to comply with the request within the applicable 
time limits, and in which a court allowed additional time upon a showing 
of exceptional circumstances, provide a copy of each court opinion and 
court order containing such an extension of time.
    (5) Total. Enter the sum of paragraphs (j)(2)(i) through (j)(2)(iv) 
above of this section.

    (ii) [Reserved]

[56 FR 48932, Sept. 26, 1991, as amended at 56 FR 56011, Oct. 31, 1991]



                    Subpart H--Education and Training

                       Responsibility and Purpose



Sec. 518.100  Responsibility.

    The head of each DoD Component is responsible for the establishment 
of educational and training programs on the provisions and requirements 
of this Regulation. The educational programs should be targeted toward 
all members

[[Page 188]]

of the DoD Component, developing a general understanding and 
appreciation of the DoD FOIA Program; whereas, the training programs 
should be focused toward those personnel who are involved in the day-to-
day processing of FOIA requests, and should provide a thorough 
understanding of the procedures outlined in this Regulation.



Sec. 518.101  Purpose.

    The purpose of the educational and training programs is to promote a 
positive attitude among DoD personnel and raise the level of 
understanding and appreciation of the DoD FOIA Program, thereby 
improving the interaction with members of the public and improving the 
public trust in the Department of Defense.



Sec. 518.102  Scope and principles.

    Each Component shall design its FOIA educational and training 
programs to fit the particular requirements of personnel dependent upon 
their degree of involvement in the implementation of this Regulation. 
The Program should be designed to accomplish the following objectives:
    (a) Familiarize personnel with the requirements of the FOIA and its 
implementation by this Regulation.
    (b) Instruct personnel, who act in FOIA matters, concerning the 
provisions of this Regulation, advising them of the legal hazards 
involved and the strict prohibition against arbitrary and capricious 
withholding of information.
    (c) Provide for the procedural and legal guidance and instruction, 
as may be required, in the discharge of the responsibilities of initial 
denial and appellate authorities.
    (d) Advise personnel of the penalties for noncompliance with the 
FOIA.



Sec. 518.103  Implementation.

    To ensure uniformity of interpretation, all major educational and 
training programs concerning the implementation of this Regulation 
should be coordinated with the Director, Freedom of Information and 
Security Review, OASD(PA).



Sec. 518.104  Uniformity of legal interpretation.

    In accordance with DoD Directive 5400.7 (reference (b)), the General 
Counsel of the Department of Defense shall ensure uniformity in the 
legal position and interpretation of the DoD FOIA Program. This 
regulation provides procedures for contacting the DOD General Counsel 
where required.

Appendix A to Part 518--Unified Commands--Processing Procedures for FOI 
                                 Appeals

    1. General.
    a. In accordance with DoD Directive 5400.7 (reference (b)) and this 
Regulation, the Unified Commands are placed under the jurisdiction of 
the Office of the Secretary of Defense, instead of the administering 
Military Department, only for the purpose of administering the Freedom 
of Information (FOI) Programs. This policy represents an exception to 
the policies in DoD Directive 5100.3 (reference (f)).
    b. The policy change above authorizes and requires the Unified 
Commands to process FOI requests in accordance with DoD Directive 5400.7 
(reference (b)) and DoD Instruction 5400.10 (reference (hh)) and to 
forward directly to the OASD(PA) all correspondence associated with the 
appeal of an initial denial for information under the provisions of the 
FOIA.
    2. Responsibilities of Commands.
    Unified Commanders in Chief shall:
    a. Designate the officials authorized to deny initial FOIA requests 
for records.
    b. Designate an office as the point-of-contact for FOIA matters.
    c. Refer FOIA cases to the ASD(PA) for review and evaluation when 
the issues raised are of unusual significance, precedent setting, or 
otherwise require special attention or guidance.
    d. Consult with other OSD and DoD Components that may have a 
significant interest in the requested record prior to a final 
determination. Coordination with agencies outside of the Department of 
Defense, if required, is authorized.
    e. Coordinate proposed denials of records with the appropriate 
Unified Command's Office of the Staff Judge Advocate. Answer any request 
for a record within 10 working days of receipt. The requester shall be 
notified that his request has been granted or denied. In unusual 
circumstances, such notification may state that additional time, not to 
exceed 10 working days, is required to make a determination.
    f. Provide to the ASD(PA) when the request for a record is denied in 
whole or in part, a copy of the response to the requester

[[Page 189]]

or his representative, and any internal memoranda that provide 
background information or rationale for the denial.
    g. State in the response that the decision to deny the release of 
the requested information, in whole or in part, may be appealed to the 
Assistant Secretary of Defense (Public Affairs), the Pentagon, 
Washington, DC 20301-1400.
    h. Upon request, submit to ASD(PA) a copy of the records that were 
denied. ASD(PA) shall make such requests when adjudicating appeals.
    3. Fees for FOI Requests.
    The fees charged for requested records shall be in accordance with 
subpart F.
    4. Communications.
    Excellent communications capabilities currently exist between the 
OASD(PA) and the Public Affairs Offices of the Unified Commands. This 
communication capability shall be used for FOIA cases that are time 
sensitive.
    5. Reporting Requirements.
    a. The Unified Commands shall submit to the ASD(PA) an annual 
report. The instructions for the report are outlined in subpart G.
    b. The annual report shall be submitted in duplicate to the ASD(PA) 
not later than each February 1. This reporting requirement is assigned 
Report Control Symbol DD-PA(A)1365.

            Appendix B to Part 518--Addressing FOIA Requests

    1. General.
    a. The Department of Defense includes the Office of the Secretary of 
Defense and the Joint Staff, the Military Departments, the Unified 
Commands, the Defense Agencies, and the DoD Field Activities.
    b. The Department of Defense does not have a central repository for 
DoD records. FOIA requests, therefore, should be addressed to the DoD 
Component that has custody of the record desired. In answering inquiries 
regarding FOIA requests, DoD personnel shall assist requesters in 
determining the correct DoD Component to address their requests. If 
there is uncertainty as to the ownership of the record desired, the 
requester shall be referred to the DoD Component that is most likely to 
have the record.
    2. Listing of DoD Component Addresses for FOIA Requests.
    a. Office of the Secretary of Defense and the Joint Staff. Send all 
requests for records from the below listed offices to: Office of the 
Assistant Secretary of Defense (Public Affairs), Attn: Directorate for 
Freedom of Information and Security Review, room 2C757, The Pentagon, 
Washington, DC 20301-1400.
    (1) Executive Secretariat.
    (2) Under Secretary of Defense (Policy).
    (a) Assistant Secretary of Defense (International Security Affairs).
    (b) Assistant Secretary of Defense (International Security Policy).
    (c) Assistant Secretary of Defense (Special Operations/Low Intensity 
Conflict).
    (d) Principal Deputy Under Secretary of Defense (Strategy and 
Resources).
    (e) Deputy Under Secretary of Defense (Trade Security Policy).
    (f) Deputy Under Secretary of Defense (Security Policy).
    (g) Director of Net Assessment.
    (h) Director Defense Security Assistance Agency.
    (i) Defense Technology Security Administration.
    (3) Under Secretary of Defense (Acquisition).
    (a) Assistant Secretary of Defense (Production and Logistics).
    (b) Assistant Secretary of Defense (Command, Control, 
Communications, and Intelligence).
    (c) Assistant to the Secretary of Defense (Atomic Energy).
    (d) Director, Defense Research and Engineering.
    (e) Director, Small and Disadvantaged Business Utilization.
    (4) Comptroller of the Department of Defense.
    (5) Assistant Secretary of Defense (Force Management and Personnel).
    (6) Assistant Secretary of Defense (Health Affairs).
    (7) Assistant Secretary of Defense (Legislative Affairs).
    (8) Assistant Secretary of Defense (Public Affairs).
    (9) Assistant Secretary of Defense (Program Analysis and 
Evaluation).
    (10) Assistant Secretary of Defense (Reserve Affairs).
    (11) General Counsel, Department of Defense.
    (12) Director, Operational Test and Evaluation.
    (13) Assistant to the Secretary of Defense (Intelligence Oversight).
    (14) Assistant to the Secretary of Defense (Intelligence Policy).
    (15) Defense Advanced Research Projects Agency.
    (16) Strategic Defense Initiative Organization.
    (17) Defense Systems Management College.
    (18) National Defense University.
    (19) Armed Forces Staff College.
    (20) Department of Defense Dependent Schools.
    (21) Uniformed Services University of the Health Sciences.
    b. Department of the Army. Army records may be requested from those 
Army officials who are listed in 32 CFR part 518 (reference (ii)), 
appendix B. Send requests to the Chief,

[[Page 190]]

Freedom of Information and Privacy Act Division, Information Systems 
Command--Pentagon, Attn: ASQNS-OP-F, room 1146, Hoffman I, 2461 
Eisenhower Avenue, Alexandria, VA 22331-0301 for records of the 
Headquarters, U.S. Army, or if there is uncertainty as to which Army 
activity may have the records. Send requests to particular installations 
or organizations as follows:
    (1) Current publications and records of DA field commands, 
installations, and organizations.
    (a) Send the request to the commander of the command, installation, 
or organization, to the attention of the Freedom of Information Act 
Official.
    (b) Consult AR 25-400-2 for more detailed listings of all record 
categories kept in DA offices.
    (c) Contact the installation or organization public affairs officer 
for help if you cannot determine the official within a specific 
organization to whom your request should be addressed.
    (2) Department of the Army publications.
    (a) Write to the U.S. Government Printing Office, which has many DA 
publications for sale. Address: Superintendent of Documents, U.S. 
Government Printing Office, Washington, DC 20402-0001.
    (b) Use the facilities of about 1,000 Government publication 
depository libraries throughout the United States. These libraries have 
copies of many DA publications. Obtain a list of these libraries from 
the Superintendent of Documents at the above address.
    (c) Send requests for current administrative, training, technical, 
and supply publications to the National Technical Information Service, 
U.S. Department of Commerce, Attn: Order Preprocessing Section, 5285 
Port Royal Road, Springfield, VA 22151-2171; commercial telephone, (703) 
487-4600. The National Technical Information Service handles general 
public requests for unclassified, uncopyrighted, and nondistribution-
restricted Army publications not sold through the Superintendent of 
Documents.
    (3) Military personnel records. Send requests for military personnel 
records of information as follows:
    (a) Army Reserve personnel not on active duty and retired 
personnel--Commander, U.S. Army Reserve Personnel Center, 9700 Page 
Blvd., St. Louis, MO 63132-5200; commercial telephone, (314) 263-7600.
    (b) Army officer personnel discharged or deceased after 1 July 1917 
and Army enlisted personnel discharged or deceased after 1 November 
1912--Director, National Personnel Records Center, 9700 Page Blvd., St. 
Louis, MO 63132-5100.
    (c) Army personnel separated before the dates specified in (ii) 
above--Textual Reference Division, Military Reference Branch, National 
Archives and Records Administration, Washington, DC 20408-0001.
    (d) Army National Guard officer personnel[EM]Chief, National Guard 
Bureau. Army National Guard enlisted personnel[EM]Adjutant General of 
the proper State.
    (e) Active duty commissioned and warrant officer personnel--
Commander, U.S. Total Army Personnel Command, Attn: TAPC-ALS, 
Alexandria, VA 22332-0405; commercial telephone, (703) 325-4053. Active 
duty enlisted personnel--Commander, U.S. Army Enlisted Records and 
Evaluation Center, Attn: PCRE-RF, Fort Benjamin Harrison, IN 46249-4701; 
commercial telephone, (317) 542-3643.
    (4) Medical records.
    (a) Medical records of non-active duty military personnel. Use the 
same addresses as for military personnel records.
    (b) Medical records of military personnel on active duty. Address 
the medical treatment facility where the records are kept. If necessary, 
request locator service per (e) above.
    (c) Medical records of civilian employees and all dependents. 
Address the medical treatment facility where the records are kept. If 
the records have been retired, send requests to the Director, National 
Personnel Records Center, 111 Winnebago St., St. Louis, MO 63118-4199.
    (5) Legal records.
    (a) Records of general courts-martial and special courts-martial in 
which a bad conduct discharge was approved. For cases not yet forwarded 
for appellate review, apply to the staff judge advocate of the command 
having jurisdiction over the case. For cases forwarded for appellate 
review and for old cases, apply to the U.S. Army Legal Service Agency, 
Attn: JALS-CC, Nassif Building, Falls Church, VA 22041-5013; AUTOVON 
289-1888, commercial telephone, (202) 756-1888.
    (b) Records of special courts-martial not involving a bad conduct 
discharge. These records are kept for 10 years after completion of the 
case. If the case was completed within the past 3 years, apply to the 
staff judge advocate of the headquarters where it was reviewed. If the 
case was completed from 3 to 10 years ago, apply to the National 
Personnel Records Center (Military Records), 9700 Page Blvd., St. Louis, 
MO 63132-5100. If the case was completed more than 10 years ago, the 
only evidence of conviction is the special courts-martial order in the 
person's permanent records. Request as in (3) above.
    (c) Records of summary courts-martial. Locally maintained records 
are retired 3 years after action of the supervisory authority. Request 
records of cases less than 3 yeas old from the staff judge advocate of 
the headquarters where the case was reviewed. After 10 years, the only 
evidence of conviction is the summary courts-martial order in

[[Page 191]]

the person's permanent records. Request as in (3) above.
    (d) Requests submitted under (b) and (c) above. These requests will 
be processed in accordance with chapter V. The IDA is The Judge Advocate 
General, HQDA (DAJA-CL), WASH DC 20310-2213; AUTOVON 225-1891, 
commercial telephone, (202) 695-1891.
    (e) Administrative settlement of claims. Apply to the Chief, U.S. 
Army Claims Service, Attn: JACS-TCC, Fort George G. Meade, MD 20755-
5360; AUTOVON 923-7860, commercial telephone, (301) 677-7860.
    (f) Records involving debarred or suspended contractors. Apply to 
HQDA (JALS-PF), WASH DC 20310-2217; AUTOVON 285-4278, commercial 
telephone, (202) 504-4278.
    (g) Records of all other legal matters (other than records kept by a 
command, installation, or organization staff judge advocate). Apply to 
HQDA (DAJA-AL), WASH DC 20310-2212; AUTOVON 224-4316, commercial 
telephone, (202) 694-4316.
    (6) Civil works program records. Civil works records include those 
relating to construction, operation, and maintenance for the improvement 
of rivers, harbors, and waterways for navigation, flood control, and 
related purposes, including shore protection work by the Army. Apply to 
the proper division or district office of the Corps of Engineers. If 
necessary to determine the proper office, contact the Commander, U.S. 
Army Corps of Engineers, Attn: CECC-K, WASH DC 20314-1000; commercial 
telephone, (202) 272-0028.
    (7) Civilian personnel records. Send requests for personnel records 
of current civilian employees to the employing installation. Send 
requests for personnel records of former civilian employees to the 
Director, National Personnel Records Center, 111 Winnebago St., St. 
Louis, MO 63118-4199.
    (8) Procurement records. Send requests for information about 
procurement activities to the contracting officer concerned or, if not 
feasible, to the procuring activity. If the contracting officer or 
procuring activity is not known, send inquiries as follows:
    (a) Army Materiel Command procurement: Commander, U.S. Army Materiel 
Command, Attn: AMCPA, 5001 Eisenhower Ave., Alexandria, VA 22333-0001.
    (b) Corps of Engineers procurement: Commander, U.S. Army Corps of 
Engineers, Attn: CECC-K, WASH DC 20314-1000; commercial telephone, (202) 
272-0028.
    (c) All other procurement: HQDA (DAJA-KL), WASH DC 20310-2208; 
AUTOVON 225-6209, commercial telephone, (202) 695-6209.
    (9) Criminal investigation files. Send requests involving criminal 
investigation files to the Commander, U.S. Army Criminal Investigation 
Command, Attn: CICR-FP, 2301 Chesapeake Ave., Baltimore, MD 21222-4099; 
commercial telephone, (301) 234-9340. Only the Commanding General, 
USACIDC, can release any USACIDC-originated criminal investigation file.
    (10) Personnel security investigation files and general Army 
intelligence records. Send requests for personnel security investigation 
files, intelligence investigation and security records, and records of 
other Army intelligence matters to the Commander, U.S. Army Intelligence 
and Security Command, Attn: IACSF-FI, Fort George G. Meade, MD 20755-
5995.
    (11) Inspector General records. Send requests involving records 
within the Inspector General system to HQDA (SAIG-ZXL), WASH DC 20310-
1714. AR 20-1 governs such records.
    (12) Army records in Government records depositories.
    (a) Noncurrent Army records are in the National Archives of the 
United States, WASH DC 20408-0001; in Federal Records Centers of the 
National Archives and Records Administration; and in other records 
depositories. Requesters must write directly to the heads of these 
depositories for copies of such records.
    (b) A list of pertinent records depositories is published in AR 25-
400-2, table 6-1.
    (c) Department of the Navy. Navy and Marine Corps records may be 
requested from any Navy or Marine Corps activity by addressing a letter 
to the Commanding Officer and clearly indicating that it is an FOIA 
request. Send requests to Chief of Naval Operations, Code OP-09B30, room 
5E521, Pentagon, Washington, DC 20350-2000, for records of the 
Headquarters, Department of the Navy, and to Freedom of Information and 
Privacy Act Office, Code MI-3, HQMC, room 4327, Washington, DC 20308-
0001, for records of the U.S. Marine Corps, or if there is uncertainty 
as to which Navy or Marine activities may have the records.
    (d) Department of the Air Force. Air Force records may be requested 
from the Commander of any Air Force installation, major command, or 
separate operating agency (Attn: FOIA Office). For Air Force records of 
Headquarters, United States Air Force, or if there is uncertainty as to 
which Air Force activity may have the records, send requests to 
Secretary of the Air Force, Attn: SAF/AAIS(FOIA), Pentagon, room 
4A1088C, Washington, DC 20330-1000.
    (e) Defense Contract Audit Agency (DCAA). DCAA records may be 
requested from any of its regional offices or from its headquarters. 
Requesters should send FOIA requests to the Defense Contract Audit 
Agency, Attn: CMR, Cameron Station, Alexandria, VA 22304-6178, for 
records of its headquarters or if there is uncertainty as to which DCAA 
region may have the records sought.
    (f) Defense Communications Agency (DCA). DCA records may be 
requested from any DCA

[[Page 192]]

field activity or from its headquarters. Requesters should send FOIA 
requests to Defense Communications Agency, Code H104, Washington, DC 
20305-2000.
    (g) Defense Intelligence Agency (DIA). FOIA requests for DIA records 
may be addressed to Defense Intelligence Agency, Attn: RTS-1, 
Washington, DC 20340-3299.
    (h) Defense Investigative Service (DIS). All FOIA requests for DIS 
records should be sent to the Defense Investigative Service, Attn: 
V0020, 1900 Half St., SW., Washington, DC 20324-1700.
    (i) Defense Logistics Agency (DLA). DLA records may be requested 
from its headquarters or from any of its field activities. Requestors 
should send FOIA requests to defense Logistics Agency, Attn: DLA-XAM, 
Cameron Station, Alexandria, VA 22304-6100.
    (j) Defense Mapping Agency (DMA). FOIA requests for DMA records may 
be sent to the Defense Mapping Agency, 8613 Lee Highway, Fairfax, VA 
22031-2137.
    (k) Defense Nuclear Agency (DNA). FOIA requests for DNA records may 
be sent to the Defense Nuclear Agency, Public Affairs Office, room 113, 
6801 Telegraph Road, Alexandria, VA 22310-3398.
    (l) National Security Agency (NSA). FOIA requests for NSA records 
may be sent to the National Security Agency/Central Security Service, 
Attn: Q-43, Fort George G. Meade, MD 20755-6000.
    (m) Office of the Inspector General, Department of Defense (IG, 
DoD). FOIA requests for IG, DoD records may be sent to the Department of 
Defense Office of the Inspector General, Assistant Inspector General for 
Investigations, Attn: Deputy Director FOIA/PA Division, 400 Army Navy 
Drive, Arlington, VA 22202-2884.
    (n) Defense Finance and Accounting Service (DFAS). DFAS records may 
be requested from any of its regional offices or from its Headquarters. 
Requesters should send FOIA requests to Defense Finance and Accounting 
Service, Crystal Mall 3, room 416, Washington, DC 20376-5001 for records 
of its headquarters, or if there is uncertainty as to which DFAS region 
may have the records sought.
    3. Other Addressees.
    Although the below organizations are OSD and Joint Staff Components 
for the purposes of the FOIA, requests may be sent directly to the 
addresses indicated.
    (a) Office of Civilian Health and Medical Program of the Uniformed 
Services (OCHAMPUS). Director, OCHAMPUS, Attn: Freedom of Information 
Officer, Aurora, CO 80045-6900.
    (b) Chairman, Armed Services Board of Contract Appeals (ASBCA). 
Chairman, Armed Services Board of Contract Appeals, Skyline Six, 5109 
Leesburg Pike, Falls Church, VA 22041-3208.
    (c) U.S. Central Command. U.S. Central Command/CCJI/AG, MacDill Air 
Force Base, FL 33608-7001.
    (d) U.S. European Command. Headquarters, U.S. European Command/ECJ1-
AR(FOIA), APO New York 09128-4209.
    (e) U.S. Southern Command. U.S. Commander-in-Chief, Southern 
Command, Attn: SCJ1, APO Miami 34003-0007.
    (f) U.S. Pacific Command. U.S. Commander-in-Chief, Pacific Command, 
USPACOM FOIA Coordinator (J18A), Administrative Support Division, Joint 
Secretariat, Box 28, Camp H.M. Smith, HI 96861-5025.
    (g) U.S. Special Operations Command. U.S. Special Operations 
Command, Attn: SOJ6-SI (FOI Officer), MacDill, Air Force Base, FL 33608.
    (h) U.S. Atlantic Command. Commander-in-Chief, Atlantic Command, 
Code J02P6, Norfolk, VA 23511-5100.
    (i) U.S. Space Command. Chief Records Management Division, 
Directorate of Administration, United States Space Command Peterson Air 
Force Base, CO 80914-5001.
    (j) U.S. Transportation Command. U.S. Commander-in-Chief, 
Transportation Command, Attn: TCDA-RM, Scott Air Force Base, IL 62225-
7001.
    4. National Guard Bureau.
    FOIA requests for National Guard Bureau records may be sent to the 
Chief, National Guard Bureau (NGB-DAI), Pentagon, room 2C362, 
Washington, DC 20310-2500.
    5. Miscellaneous.
    If there is uncertainty as to which DoD component may have the DoD 
record sought, the requester may address a Freedom of Information 
request to the Office of the Assistant Secretary of Defense (Public 
Affairs), Attn: Directorate for Freedom of Information and Security 
Review, room 2C757, The Pentagon, Washington, DC 20301-1400.

             Appendix C to Part 518--Litigation Status Sheet

1. Case Number* (Number used by Component for references (for DA, use 
          case name)
2. Requester
3. Document Title or Description
4. Litigation
a. Date Complaint Filed
b. Court
c. Case File Number*
5. Defendants (agency and individual)
6. Remarks: (brief explanation of what the case is about)
7. Court Action
a. Court's Finding
b. Disciplinary Action (as appropriate)
8. Appeal (as appropriate)
a. Date Complaint Filed
b. Court
c. Case File Number*

[[Page 193]]

d. Court's Finding
e. Disciplinary Action (as appropriate)

             Appendix D to Part 518--Other Reason Categories

    1. Transferred Requests. This category applies when responsibility 
for making a determination or a decision on categories 2, 3, or 4 below 
is shifted from one Component to another, or to another Federal Agency.
    2. Lack of Records. This category covers those situations wherein 
the requester is advised the DoD Component has no record or has no 
statutory obligation to create a record.
    3. Failure of Requester to Reasonably Describe Record[EH]. This 
category is specifically based on section 552(a)(3)(a) of the FOIA 
(reference (a)).
    4. Other Failures by Requesters to Comply with Published Rules or 
Directives. This category is based on section 5529a)(3)(b) of the FOIA 
(reference (a)) and includes instances of failure to follow published 
rules concerning time, place, fees, and procedures.
    5. Request Withdrawn by Requester. This category covers those 
situations wherein the requester asks an agency to disregard the request 
(or appeal) or pursues the request outside FOIA channels.
    6. Not an Agency Record. This category covers situations where the 
information requested is not an agency record within the meaning of the 
FOIA and this regulation.

     Appendix E to Part 518--DoD Freedom of Information Act Program 
                               Components

Office of the Secretary of Defense/Joint Staff/Unified Commands,
Defense Agencies, and the DoD Field Activities
Department of the Army
Department of the Navy
Department of the Air Force
Defense Communications Agency
Defense Contract Audit Agency
Defense Finance and Accounting Service
Defense Intelligence Agency
Defense Investigative Service
Defense Logistics Agency
Defense Mapping Agency
Defense Nuclear Agency
National Security Agency
Office of the Inspector General, Department of Defense
Defense Finance and Accounting Service

[56 FR 48932, Sept. 26, 1991, as amended at 56 FR 56011, Oct. 31, 1991]

[[Page 194]]

[GRAPHIC] [TIFF OMITTED] TC24OC91.030


[[Page 195]]


[GRAPHIC] [TIFF OMITTED] TC24OC91.000

        Appendix G to Part 518--Internal Control Review Checklist

    Task: Army Information Management.
    Subtask: Records Management.
    This Checklist: Freedom of Information Act Program.
    Organization:
    Action Officer:
    Reviewer:
    Date Completed:
    Assessable Unit: The specific managers responsible for using this 
checklist (e.g., at applicable FOA, MACOM, SIO, and TOE division 
headquarters) will be designated by the cognizant headquarters' staff 
functional

[[Page 196]]

principal. The responsible principal and mandatory schedule for using 
the checklist will be shown in the annual updated Management Control 
Plan

    Event Cycle 1: Establish and Implement a Freedom of Information Act 
Program.
    Risk: If the prescribed policies, procedures, and responsibilities 
of the Freedom of Information Act Program are not followed the public 
would not have the ability to obtain access to and release of Army 
records.
    Control Objective: To ensure that prescribed policies, procedures, 
and responsibilities contained in 5 U.S.C. 552 are followed to allow 
access and release of Army records to the public.
    Control Technique: The document used to accomplish the control 
objective is AR 25-55, The Department of the Army Freedom of Information 
Act Program.
    1. Ensure that a Freedom of Information Act Program is established 
and implemented.
    2. Appoint an individual with Freedom of Information Act 
responsibilities and ensure designation of appropriate staff to assist 
him/her.
    3. Appoint an individual with Operations Security (OPSEC) 
responsibilities, if required.

                             Test Questions

    1. Is a Freedom of Information Act Program established and 
implemented in your organization?

Response: Yes ____ No ____ NA ____
Remarks: 1
    2. Is an individual appointed Freedom of Information Act 
Responsibilities?

Response: Yes ____ No ____ NA ____
Remarks: 1
    3. Is an individual appointed OPSEC responsibilities, if required?

Response: Yes ____ No ____ NA ____
Remarks: 1
    4. Is DA Form 4948-R, Freedom of Information Act (FOIA)/Operations
Security (OPSEC) Desk Top Guide used?

Response: Yes ____ No ____ NA ____
Remarks: 1
    5. Does DA Form 4948-R contain the current name and office telephone 
number of the FOIA/OPSEC advisor?

Response: Yes ____ No ____ NA ____
Remarks: 1
    6. Are provisions of AR 25-55 concerning the protection of OPSEC 
sensitive information regularly brought to the attention of managers 
responsible for responding to FOIA requests and those responsible for 
control of Army records?

Response: Yes ____ No ____ NA ____
Remarks: 1
    7. Are rules governing ``For Official Use Only'' information 
understood and properly applied by functional proponents?

Response: Yes ____ No ____ NA ____
Remarks: 1
    8. Are names and duty addresses of Army personnel (civilian and 
military) assigned to units that are sensitive, routinely deplorable, or 
stationed in foreign territories being denied or forwarded to the proper 
initial denial authority (IDA) for denial?

Response: Yes ____ No ____ NA ____
Remarks: 1
    9. Is the format contained in AR 25-55, used when preparing the 
annual FOIA report?

Response: Yes ____ No ____ NA ____
Remarks: 1
    10. Is the worksheet contained in AR 25-55 used when preparing the 
annual FOIA report?
Response: Yes ____ No ____ NA ____
Remarks: 1

    11. Is the input for the annual FOIA report forwarded to the Army 
Freedom of Information and Privacy Act Division, Information Systems 
Command by the second week of each January?

Response: Yes ____ No ____ NA ____
Remarks: 1

EVENT___________________________________________________________________
    Cycle 2: Processing FOIA Requests.
    Risk: Failure to process FOIA requests correctly and release non-
exempt Army records to the public could subject the Department of the 
Army or individuals to litigation.
    Control Objective: FOIA requests are processed correctly.

                            Control Technique

    1. Ensure FOIA requests are logged into a formal control system.
    2. Ensure FOIA requests are answered promptly and correctly.
    3. Ensure Army records are withheld only when fall under the purview 
of one or more of the nine FOIA exemptions.
    4. Ensure FOIA requests are denied by properly delegated/designated 
IDAs.
    5. Ensure all appeals are forwarded to the Office of the Army 
General Counsel.

                             Test Questions

    1. Are FOIA requests logged into a formal control system?

Response: Yes ____ No ____ NA ____
Remarks: 1
    2. Are all FOIA requests date and time stamped upon receipt?

Response: Yes ____ No ____ NA ____
Remarks: 1
    3. Is the 10 working day time limit met when replying to FOIA 
requests?

Response: Yes ____ No ____ NA ____
Remarks: 1

[[Page 197]]

    4. When more than 10 working days are required to respond, is the 
FOIA requester informed, explaining the circumstances requiring the 
delay and provided an approximate date for completion?

Response: Yes ____ No ____ NA ____
Remarks: 1
    5. Are Army records withheld only when they fall under one or more 
of the nine FOIA exemptions?

Response: Yes ____ No ____ NA ____
Remarks: 1
    6. Is the FOIA requester informed when a FOIA request is referred to 
another Army activity or organization?

Response: Yes ____ No ____ NA ____
Remarks: 1
    7. Do denial letters contain the name and title or position of the 
official who made the denial determination; explain the basis for the 
denial determination; cite the exemptions on which the denial is based; 
and advise the FOIA requester of his or her right to appeal the denial 
within 60 days to the Secretary of the Army (Office of the Army General 
Counsel)?

Response: Yes ____ No ____ NA ____
Remarks: 1
    8. Is the FOIA requester informed of the appellate procedures when 
an IDA denies a record in whole or in part?

Response: Yes ____ No ____ NA ____
Remarks: 1
    9. Is the Chief of Legislative Liaison notified of all releases of 
information to members of Congress or staffs of congressional 
committees?

Response: Yes ____ No ____ NA ____
Remarks: 1
    10. Are FOIA requests denied only by properly delegated/designated 
IDAs?

Response: Yes ____ No ____ NA ____
Remarks: 1
    11. Is the servicing Judge Advocate consulted prior to forwarding a 
FOIA request to an IDA for action?

Response: Yes ____ No ____ NA ____
Remarks: 1
    12. Are the following items included when forwarding a FOIA request 
to an IDA for a determination of releasability?

    a. A copy of the legal review provided by the local legal advisor?

Response: Yes ____ No ____ NA ____
Remarks: 1
    b. The original copy of the FOIA request?

Response: Yes ____ No ____ NA ____
Remarks: 1
    c. Copies of the requested information indicating portions 
recommended for withholding?

Response: Yes ____ No ____ NA ____
Remarks: 1
    d. A copy of the acknowledgement of receipt to the requester?

Response: Yes ____ No ____ NA ____
Remarks: 1
    e. A telephone point of contact?

Response: Yes ____ No ____ NA ____
Remarks: 1
    f. The recommended FOIA exemption?

Response: Yes ____ No ____ NA ____
Remarks: 1
    g. Any recommendation to deny a request in whole or in part?

Response: Yes ____ No ____ NA ____
Remarks: 1
    13. Are all FOIA appeals forward to the Office of the General 
Counsel for a decision with a copy of denied and released records?

Response: Yes ____ No ____ NA ____
Remarks: 1
    14. Is a copy of the FOIA denial letter included when forwarding 
appeals to the Office of the General Counsel?

Response: Yes ____ No ____ NA ____
Remarks: 1
    15. Is DD Form 2086-R, Record of Freedom of Information (FOI) 
Processing Cost, used to record costs associated with the processing of 
a FOIA request?

Response: Yes ____ No ____ NA ____
Remarks: 1
    16. Is DD Form 2086-1-R, Record of Freedom of Information (FOI) 
Processing Cost for Technical Data, used to record costs associated with 
the processing of a FOIA request for technical data?

    17. Is the FOIA requester notified when charges will exceed $250.00?

Response: Yes ____ No ____ NA ____
Remarks: 1
    18. Are fees collected at the time the requester is provided the 
records?

Response: Yes ____ No ____ NA ____
Remarks: 1
    19. Are commercial requesters charged for all search, review, and 
duplication costs?

Response: Yes ____ No ____ NA ____
Remarks: 1
    20. Are educational institutions, noncommercial scientific 
institutions, or news media charged for duplication only, in excess of 
100 pages, if more than 100 pages of records are requested?

Response: Yes ____ No ____ NA ____
Remarks: 1
    21. Are the first 2 hours of search time, and the first 100 pages of 
duplication provided without charge to all ``other'' category 
requesters?

Response: Yes ____ No ____ NA ____
Remarks: 1
    22. Are FOIA fees collected and delivered to the servicing finance 
and accounting office within 30 calendar days after receipt?

Response: Yes ____ No ____ NA ____

[[Page 198]]

Remarks: 1
    23. Are FOIA fees collected for technical data retained by the 
organization providing the technical data?

Response: Yes ____ No ____ NA ____
Remarks: 1
    Event Cycle 3: Records Management.
    Risk: Valuable records needed for court actions are destroyed or 
cannot be located.
    Control Objective: Records containing ``For Official Use Only'' 
information are correctly marked and FOIA requests are properly 
maintained throughout their life cycle.
    Control Technique: Ensure the prescribed policies and procedures are 
followed during the life cycle of information.

                             Test Questions

    1. Are unclassified documents containing ``For Official Use Only'' 
information marked ``FOR OFFICIAL USE ONLY'' in bold letters at least 
\3/16\ of an inch high at the bottom of the outside of the front cover 
(if any), on the first page, and on the outside of the back cover (if 
any)?

Response: Yes ____ No ____ NA ____
Remarks: 1
    2. Are individual pages containing both ``For Official Use Only'' 
and classified information marked at the top and bottom with the highest 
security classification of information appearing on the page?

Response: Yes ____ No ____ NA ____
Remarks: 1
    3. Are photographs, films, tapes, slides, and microform containing 
``For Official Use Only'' information so marked ``For Official Use 
Only'' to ensure recipient or viewer is aware of the information 
therein?

Response: Yes ____ No ____ NA ____
Remarks: 1
    4. Is ``For Official Use Only'' material transmitted outside the 
Department of the Army properly marked ``This document contains 
information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA. Exemption * 
* * applies''?

Response: Yes ____ No ____ NA ____
Remarks: 1
    5. Are permanently bound volumes of ``For Official Use Only'' 
information so marked on the outside of the front and back covers, title 
page, and first and last page?

Response: Yes ____ No ____ NA ____
Remarks: 1
    6. Is DA Label 87 (For Official Use Only Cover Sheet) affixed to 
``For Official Use Only'' documents when removed from a file cabinet?

Response: Yes ____ No ____ NA ____
Remarks: 1
    7. Do electrically transmitted messages contain the abbreviation 
``FOUO'' before the beginning of the text?

Response: Yes ____ No ____ NA ____
Remarks: 1
    8. Are ``For Official Use Only'' records stored properly during 
nonduty hours?

Response: Yes ____ No ____ NA ____
Remarks: 1
    9. Are FOIA records maintained and disposed of in accordance with AR 
25-400-2, The Modern Army Recordkeeping System (MARKS)?

Response: Yes ____ No ____ NA ____
Remarks: 1
    1. Explain rationale for YES responses or provide cross-reference 
where rationale can be found. For NO responses, cross-reference to where 
corrective action plans can be found. If response is NA, explain 
rationale.

_______________________________________________________________________
I attest that the above-listed internal controls provide reasonable 
assurance that Army resources are adequately safeguarded. I am satisfied 
that if the above controls are fully operational, the international 
controls for this subtask throughout the Army are adequate.

Director of Information for Command, Control, Communications, and 
          Computers

                          Functional Proponent

    I have reviewed this subtask within my organization and have 
supplemented the prescribed internal control review checklist when 
warranted by unique environmental circumstances. The controls prescribed 
in this checklist, as amended, are in place and operational for my 
organization (except for the weaknesses described in the attached plan, 
which includes schedules for correcting the weaknesses).
_______________________________________________________________________
Operating Manager



PART 519--PUBLICATION OF RULES AFFECTING THE PUBLIC--Table of Contents




                                 General

Sec.
519.51  Purpose.
519.52  Explanation of terms.
519.53  Responsibilities.
519.54  Designation of Rulemaking Coordinators.
519.55  Statement of compliance.
519.56  Submission of publications for printing.
519.57  Incorporation by reference.

           Information To Be Published in the Federal Register

519.58  General.
519.59  Information to be published.
519.60  Exceptions.
519.61  Procedures.
519.62  Effect of not publishing.

[[Page 199]]

  Inviting Public Comment on Certain Proposed Rules and Submission of 
                                Petitions

519.63  General.
519.64  Applicability.
519.65  Procedure when proposing rules.
519.66  Consideration of public comment.
519.67  Procedure when publishing adopted rules.
519.68  Submission of petitions.
519.69  Cases in which public comment is impractical.

    Authority: Sec. 3012, 70A Stat. 157, (10 U.S.C. 3012); sec. 3, 60 
Stat. 238, (5 U.S.C. 552).

    Source: 42 FR 26424, May 24, 1977, unless otherwise noted. 
Redesignated at 48 FR 35590, Aug. 16, 1982.

                                 General



Sec. 519.51  Purpose.

    This regulation prescribes procedures and responsibilities for 
publishing certain Department of the Army policies, practices and 
procedures in the Federal Register as required by statute, and for 
inviting public comment thereon, as appropriate. This regulation 
implements a portion of the Freedom of Information Act, 5 U.S.C. 
552(a)(1), and DoD Directive 5400.9, December 23, 1974 (32 CFR part 296, 
40 FR 4911).



Sec. 519.52  Explanation of terms.

    (a) Rule. The whole or a part of any Department of the Army 
Statement (regulation, circular, directive, or other media) of general 
or particular applicability and future effect, which is designed to 
implement, interpret, or prescribe law or policy or which describes the 
organization, procedure, or practice of the Army. See 5 U.S.C. 551(4).
    (b) Federal Register. A document published daily, Monday through 
Friday (except holidays), by the Office of the Federal Register, 
National Archives and Records Service, General Service Administration 
(GSA) to inform the public about the regulations of the executive branch 
and independent administrative agencies of the U.S. Government. The 
Federal Register includes Presidential proclamations, Executive orders, 
Federal agency documents having general applicability and legal effect 
or affecting the public, and documents required to be published by Act 
of Congress.
    (c) Code of Federal Regulations. A document published by GSA which 
contains a codification of the general and permanent rules published in 
the Federal Register by the executive departments and executive agencies 
of the Federal Government. It consists of 120 volumes, divided into 50 
titles. Each title represents a broad area that is subject to Federal 
regulation. Army documents are published in title 32, National Defense, 
and in title 33, Navigation and Navigable Waters. (The Federal Register 
and the Code of Federal Regulations must be used together to determine 
the latest version of any given rule.)



Sec. 519.53  Responsibilities.

    (a) The Adjutant General (TAG) is responsible for policies 
concerning Army rules, and proposed rules published in the Federal 
Register, and for ensuring Army compliance with this regulation. TAG 
will assist the officials listed in table 1 in the performance of their 
responsibilities. TAG will represent the Army in submitting to the 
Office of the Federal Register any matter published in accordance with 
this regulation.
    (b) The officials listed in table 1 (hereinafter referred to as 
proponents) are responsible for determining whether any rule originated 
in their areas of jurisdiction falls within the purview of Sec. 519.64, 
and for taking all actions specified in Secs. 519.65 through 519.69. 
They are also responsible for determining which matters within their 
areas of jurisdiction must be published in accordance with Sec. 519.59 
and for submission actions specified in Sec. 519.61.
    (c) Legal officers and staff judge advocates supporting the 
proponents will provide legal advice and assistance in connection with 
proponent responsibilities contained herein.

                     Table 1--Rulemaking proponents
------------------------------------------------------------------------
             Official                       Area of jurisdiction
------------------------------------------------------------------------
Administrative Assistant to the    Office of the Secretary of the Army.
 Secretary of the Army.
Director of the Army staff.......  Elements, Office of the Chief of
                                    Staff, U.S. Army.
Head of each Army staff agency...  Headquarters of the agency and its
                                    field operating and staff support
                                    agencies.

[[Page 200]]

 
Commander, MA COM................  Headquarters of MA COM and all
                                    subordinate installations,
                                    activities and units.
The Adjutant General.............  All other Army elements.
------------------------------------------------------------------------



Sec. 519.54  Designation of Rulemaking Coordinators.

    The officials listed in table 1 will designate Rulemaking 
Coordinators to perform the duties listed in paragraphs (a) through (d) 
of this section for their areas of functional responsibility. At the 
time of designation, the Adjutant General (DAAG-AMR-R) will be informed 
of the name and telephone number of the designated individual. The 
designee will perform the following duties:
    (a) Editorial review of all rules, notices, and highlight statements 
required to be published in the Federal Register.
    (b) Transmitting material to TAG and providing TAG with the name, 
office symbol, and telephone number of the action officer for each rule 
or general notice for inclusion in the Federal Register.
    (c) Coordinating with Publication Control Officers to ensure 
submission of Statements of Compliance required by Sec. 519.55.
    (d) Notifying HQDA (DAAG-AMR-R), WASH DC 20314, when a regulation 
published in the Federal Register becomes obsolete or is superseded by 
another regulation.



Sec. 519.55  Statement of compliance.

    In order to ensure compliance with the regulation, no rule will be 
issued unless there is on file with The Adjutant General (DAAG-AMR-R) a 
statement to the effect that it has been evaluated in terms of this 
regulation. If the proponent determines that the provisions of this 
regulation are inapplicable, such determination shall be explained in 
the statement.



Sec. 519.56  Submission of publications for printing.

    When Army-wide publications or directives are transmitted to The 
Adjutant General (DAAG-PAP) for publication, the DA Form 260 (Request 
for Printing of Publication) or other transmittal paper will contain a 
statement that the directive has been processed for publication in the 
Federal Register or that it falls within the exempted category. DAAG-PAP 
will not publish any rule unless this statement is on DA Form 260. A 
copy of DA Form 260 may be submitted to DAAG-AMR-R in lieu of the 
statement required by Sec. 519.55.



Sec. 519.57  Incorporation by reference.

    (a) With the approval of the Director of the Federal Register, the 
requirements for publication in the Federal Register may be satisfied by 
reference in it to other publications, provided they are reasonably 
available to the class of persons affected and contain the information 
which must otherwise be published. For example, it can be purchased from 
the Superintendent of Documents, Government Printing Office or GPO 
bookstores at a reasonable cost, or is available for review at Army 
installations, or depository libraries. Therefore, before a document can 
be incorporated by reference, the proponent must determine that it is 
available to the public. See 5 U.S.C. 552(a)(1); 1 CFR part 51; 37 FR 
23614 (4 Nov 1972).
    (b) Incorporation by reference is not acceptable as a complete 
substitute for promulgating in full the material required to be 
published. It may, however, be utilized to avoid unnecessary repetition 
of published information already reasonably available to the class of 
persons affected. Examples include:
    (1) Construction standards issued by a professional association of 
architects, engineers, or builders,
    (2) Codes of ethics issued by professional organizations, and,
    (3) Forms and formats publicly or privately published and readily 
available to the persons required to use them.
    (c) Proposals for incorporation by reference will be submitted to 
HQDA (DAAG-AMR-R), WASH DC 20314 by letter giving an identification and 
subject description of the document, statement of availability, 
indicating document will be reasonably available to the class of persons 
affected, where and

[[Page 201]]

how copies may be purchased or examined, and justification for the 
requirement to incorporate by reference. The request will be submitted 
to TAG at least 20 working days before the proposed date for submission 
of the incorporation by reference notice for the Federal Register.
    (d) TAG will consult with the Director, Office of the Federal 
Register (OFR) concerning each specific request and will notify the 
proponent of the outcome of the consultation.
    (e) If the Director, OFR agrees to the proposal for incorporation by 
reference, a general notice will be submitted to HQDA (DAAG-AMR-R), WASH 
DC 20314.

           Information To Be Published in the Federal Register



Sec. 519.58  General.

    The Administrative Procedure Act, as amended by the Freedom of 
Information Act, 5 U.S.C. 552(a), requires that certain policies, 
practices, procedures, and other information concerning the Department 
of the Army be published in the Federal Register for the guidance of the 
public. In general, this information explains where, how, and by what 
authority the Army performs any of its functions that affect the public. 
The following sections describe that information and the effect of 
failing to publish it.



Sec. 519.59  Information to be published.

    In deciding which information to publish, consideration shall be 
given to the fundamental objective of informing all interested persons 
of how to deal effectively with the Department of the Army. Information 
to be currently published will include:
    (a) Descriptions of the Army's central and field organization and 
the established places at which, the officers from whom, and the methods 
whereby the public may obtain information, make submittals or requests, 
or obtain decisions;
    (b) The procedures by which the Army conducts its business with the 
public, both formally and informally;
    (c) Rules of procedure, descriptions of forms available or the 
places at which forms may be obtained, the instructions as to the scope 
and contents of all papers, reports, or examinations;
    (d) Substantive rules of applicability to the public adopted as 
authorized by law, and statements of general policy or interpretations 
of general applicability formulated and adopted by the Army; and
    (e) Each amendment, revision, or repeal of the foregoing.



Sec. 519.60  Exceptions.

    It is not necessary to publish in the Federal Register any 
information which comes within one or more of the exemptions to the 
Freedom of Information Act, 5 U.S.C. 552(b), as implemented by paragraph 
2-12, AR 340-17.



Sec. 519.61  Procedures.

    All matters to be published in accordance with Sec. 519.59 will be 
submitted to The Adjutant General (DAAG--AMR--R), WASH DC 20314, in the 
proper format prescribed in Sec. 519.65.



Sec. 519.62  Effect of not publishing.

    Except to the extent that a person has actual and timely notice of 
the terms thereof, a person may not in any manner be required to resort 
to, comply with, or be adversely affected by, a matter required to be 
published in the Federal Register and not so published.

  Inviting Public Comment on Certain Proposed Rules and Submission of 
                                Petitions



Sec. 519.63  General.

    Public comment must be sought on certain of those proposed rules 
which are required to be published in accordance with Sec. 519.59. The 
following sections set forth the criteria and procedures for inviting 
public comment before publication.



Sec. 519.64  Applicability.

    (a) These provisions apply only to those Department of the Army 
rules or portions thereof which:
    (1) Are promulgated after the effective date of this regulation; and
    (2) Must be published in the Federal Register in accordance with 
Sec. 519.59; and

[[Page 202]]

    (3) Have a substantial and direct impact on the public or any 
significant portion of the public; and
    (4) Do not merely implement a rule already adopted by a higher 
element within the Department of the Army or by the Department of 
Defense.
    (b) Subject to the policy in paragraph (a) of this section and 
unless otherwise required by law, the requirement to invite advance 
public comment on proposed rules does not apply to those rules or 
portions thereof which:
    (1) Do not come within the purview of paragraph (a) of this section; 
or
    (2) Involve any matter pertaining to a military or foreign affairs 
function of the United States which has been determined under the 
criteria of an Executive Order or statute to require a security 
classification in the interests of national defense or foreign policy; 
or
    (3) Involve any matter relating to Department of the Army 
management, personnel, or public contracts, e.g., Armed Services 
Procurement Regulation, including nonappropriated fund contracts; or
    (4) Constitute interpretative rules, general statements of policy or 
rules of organization, procedure or practice; or
    (5) The proponent of the rule determines for good cause that 
inviting public comment would be impracticable, unnecessary, or contrary 
to the public interest. This provision will not be utilized as a 
convenience to avoid the delays inherent in obtaining and evaluating 
prior public comment. See also Sec. 519.69.



Sec. 519.65  Procedure when proposing rules.

    (a) A proposed rule to which this section applies will be published 
along with a preamble, in the Proposed Rules Section of the Federal 
Register. Public comment will be invited within a designated time, at 
least 30 days prior to the intended adoption of the proposed rule.
    (b) The proposed rule and preamble will be prepared for publication 
by the proponent of the rule. Preparation will be in accordance with 
guidance contained in Federal Register Handbook on Document Drafting.
    (c) Rulemaking proponents will submit the original and three copies 
of the proposed rules and preamble, in the proper format, to HQDA (DAAG-
AMR-R), WASH DC 20314. The Adjutant General will prepare the required 
certification and submit the documents to the Office of the Federal 
Register for publication as a notice of proposed rulemaking.



Sec. 519.66  Consideration of public comment.

    (a) Following publication of a notice of proposed rulemaking, all 
interested persons will be given an opportunity to participate in the 
rulemaking through the submission of written data, views and arguments 
to the proponent of the proposed rulemaking concerned.
    (b) If the proponent of the rule determines that it is in the public 
interest, a hearing or other opportunity for oral presentation of view 
may be allowed as a means of facilitating public comment. Informal 
consultation by telephone or otherwise may also be utilized to 
facilitate presentation of oral comments by interested persons. All 
hearings or other oral presentations will be conducted by the proponent 
of the rule in a manner prescribed by him. A hearing file shall be 
established for each hearing. The hearing file shall include any public 
notices issued, the request for the hearing, any data or material 
submitted in justification thereof, materials submitted in opposition to 
the proposed action, the hearing transcript, and any other material as 
may be relevant or pertinent to the subject matter of the hearing.
    (c) There is no requirement to respond either orally or in writing, 
individually to any person who submits comments with respect to a 
proposed rule. The proponent of the rule, however, may do so as a matter 
within his discretion.



Sec. 519.67  Procedure when publishing adopted rules.

    (a) After careful consideration of all relevant material submitted, 
the proponent of the rule will make such revisions in the proposed rule 
as appear necessary in light of the comments received.
    (b) The proponent will also prepare a preamble for publication with 
the

[[Page 203]]

adopted rule. The proponent shall discuss in the preamble the comments 
received in response to the proposed rule and the decision to accept or 
reject the comments in revisions to the proposed rule. Preparation will 
be in accordance with guidance contained in the Federal Register 
Handbook on Document Drafting.
    (c) The original and three copies of the preamble and revised rule 
will be forwarded to HQDA (DAAG-AMR-R), WASH DC 20314 in the proper 
format. The Adjutant General will then prepare the required 
certification and submit the documents to the Office of the Federal 
Register for publication in the form of an adopted rule.



Sec. 519.68  Submission of petitions.

    Each proponent of a rule will grant to any interested person the 
right to submit a written petition calling for the issuance, amendment, 
or repeal of any rule to which Secs. 519.64 through 519.67 applies or 
would apply if issued, as specified in Sec. 519.64. Any such petition 
will be given full and prompt consideration by the proponent. If 
compatible with the orderly conduct of public business, the appropriate 
official may, at his descretion, allow the petitioner to appear in 
person for the purpose of supporting this petition. After consideration 
of all relevant matters by the proponent, the petitioner will be advised 
in writing by the proponent of the disposition of any petition, together 
with the reasons supporting that disposition. This provision does not 
apply to comments submitted on proposed rules in Sec. 519.66.



Sec. 519.69  Cases in which public comment is impractical.

    (a) Whenever a rulemaking proponent determines for good cause that 
inviting public comment regarding a proposed rule would be impractical, 
unnecessary, or contrary to the public interest, he will prepare a brief 
statement of the reasons supporting this determination for incorporation 
in the preamble to the adopted rule. The preamble and adopted rule will 
then be published in the form outlined in Sec. 519.67 (b) and (c).
    (b) Alternatively, the proponent may request The Adjutant General 
(DAAG-AMR-R) (by letter or disposition form, as appropriate) to adopt 
and publish in the Federal Register a separate rule exempting from the 
prepublication notice provisions of this regulation those specific 
categories of rules which the rulemaking proponent has determined that 
public comment would be unnecessary, impractical, or contrary to the 
public interest. The request to The Adjutant General will contain an 
explanation of the reasons why the proponent believes that a particular 
category of rule or rules should not be published in proposed form for 
public comment. If The Adjutant General agrees that public comment 
should not be invited with respect to the cited category, he will adopt 
and publish a separate rule in the Federal Register exempting such rule 
or rules from the requirements of this regulation. This separate rule 
will include an explanation of the basis for exempting each particular 
category from the provisions of this regulation.



PART 525--ENTRY AUTHORIZATION REGULATION FOR KWAJALEIN MISSILE RANGE--Table of Contents




Sec.
525.1  General.
525.2  Background and authority.
525.3  Criteria.
525.4  Entry authorization (policy).
525.5  Entry authorization (procedure).

    Authority: 44 U.S.C. 1681, 50 U.S.C. 797, 18 U.S.C. 1001, and E.O. 
11021.

    Source: 48 FR 34028, July 27, 1983, unless otherwise noted.



Sec. 525.1  General.

    (a) Purpose. This regulation prescribes policies and procedures 
governing entry of persons, ships, and aircraft into the Kwajalein 
Missile Range (KMR), Kwajalein Atoll, Marshall Islands.
    (b) Scope. (1) This regulation is applicable to all persons, ships 
and aircraft desiring entry into KMR.
    (2) The entry authorizations issued under this authority are limited 
to KMR and do not apply to entry to any other areas of the Marshall 
Islands.
    (3) In addition to the controls covered by this regulation movement 
within the Kwajalein Missile Range, the territorial sea thereof and 
airspace

[[Page 204]]

above, is subject to local control by the Commander, Kwajalein Missile 
Range, and as installation commander.
    (4) This regulation is not applicable to entry authorized by the 
President of the United States pursuant to the United Nations (U.N.) 
Charter and to Article 13 of the Trusteeship Agreement for the Former 
Japanese Mandated Islands.
    (c) Explanation of terms--(1) Department of Defense. A department of 
the executive branch of the U.S. Government which includes the 
Departments of the Army, the Navy, and the Air Force.
    (2) Entry Authorization. Authorization by designated authority for a 
person, a ship, or an aircraft to enter Kwajalein Missile Range, the 
surrounding territorial sea, and the airspace above.
    (3) National Range Commander. The Commander, Ballistic Missile 
Defense Systems Command, is the National Range Commander.

    Address: National Range Commander, Kwajalein Missile Range, 
Ballistic Missile Defense Systems Command, ATTN: BDMSC-R, P.O. Box 1500, 
Huntsville, Alabama 35807.
    Electrical Address: CDRBMDSCOM HUNTSVILLE AL//BMDSC-R//.

    (4) Commander. KMR. The Commander of the Kwajalein Missile Range is 
located at Kwajalein Island, Republic of the Marshall Islands.

    Address: Commander, Kwajalein Missile Range, P.O. Box 26, APO San 
Francisco 96555.
    Electrical Address: CDRKMR MI //BMDSC-RK//

    (5) Excluded person. A person who has been notified by the National 
Range Commander or the Commander, KMR, that authority for said person to 
enter Kwajalein Missile Range or to remain in Kwajalein Missile Range 
has been denied or revoked.
    (6) Unauthorized person. A person who does not hold a currently 
valid entry authorization for the Kwajalein Missile Range and does not 
possess entry rights under authority of paragraph 4-1.a.
    (7) Aliens. Persons who are neither citizens of, nor nationals of, 
nor aliens to the United States of America.
    (8) Permanent resident aliens. Persons who are not citizens of the 
United States of America but who have entered the United States under an 
immigrant quota.
    (9) Military installation. A military (Army, Navy, Air Force, Marine 
Corps, and/or Coast Guard) activity ashore, having a commanding officer, 
and located in an area having fixed boundaries, within which all persons 
are subject to military control and to the immediate authority of a 
commanding officer.
    (10) Public ship or aircraft. A ship, boat, or aircraft owned by or 
belonging to a Government and not engaged in commercial activity.
    (11) Kwajalein Missile Range. Kwajalein Missile Range is defined as 
all those defense sites in the Kwajalein Atoll, Marshall Islands, 
including airspace and adjacent territorial waters, to which the United 
States Government has exclusive rights and entry control by agreement 
with the Trust Territory of the Pacific Islands and the Republic of the 
Marshall Islands.
    (12) Territorial waters. In accordance with title 19, chapter 3, 
section 101 of the Code of the Trust Territory of the Pacific Islands 
territorial waters mean, ``that part of the sea comprehended within the 
envelope of all arcs of circles having a radius of three marine miles 
drawn from all points of the barrier reef, fringing reef, or other reef 
system of the Trust Territory, measured from the low water line, or, in 
the absence of such a reef system, the distance to be measured from the 
low water line of any island, islet, reef, or rocks within the 
jurisdiction of the Trust Territory.''
    (13) Kwajalein Missile Range Airspace. The air lying above the 
Kwajalein Atoll, including that above the territorial waters.
    (14) Trust Territory Republic of the Marshall Islands Registry. 
Registration of a ship or aircraft in accordance with the laws of the 
Trust Territory of the Pacific Islands or the Republic of the Marshall 
Islands.
    (15) U.S. Registry. Registration of a ship or aircraft in accordance 
with the laws and regulations of the United States.
    (16) U.S. Armed Forces. Military personnel of the Department of 
Defense and the United States Coast Guard.

[[Page 205]]

    (17) Principal. A resident of Kwajalein Missile Range who is 
authorized to have his or her dependent(s) reside or visit with him 
(her) on Kwajalein Missile Range.
    (18) Dependent.
    (i) Spouse of principal.
    (ii) Unmarried child of principal less than 21 years of age.
    (iii) Sponsored individual meeting the dependency criteria of 
section 152, Internal Revenue Code (26 U.S.C. 152), and approved by the 
Commander, Kwajalein Missile Range.



Sec. 525.2  Background and authority.

    (a) Background. (1) Certain areas, due to their strategic nature or 
for purposes of defense, have been subjected to restrictions regarding 
the free entry of persons, ships, and aircraft. Free entry into the 
areas listed and defined in this regulation, and military installations 
contiguous to or within the boundaries of defense site areas, is subject 
to control as provided for in the Executive Order 11021 of May 7, 1962 
and Departments of Interior and Defense Agreement effective July 1, 
1963, or other regulations. Such restrictions are imposed for defense 
purposes because of the unique strategic nature of the area and for the 
protection of the United States Government military bases, stations, 
facilities, and other installations, and the personnel, property, and 
equipment assigned to or located therein. Persons, ships, and aircraft 
are excluded from KMR unless and until they are granted permission to 
enter under applicable regulations.
    (2) The control of entry into or movement within KMR by persons, 
ships, or aircraft will be exercised so as to protect fully the physical 
security of, and insure the full effectiveness of, bases, stations, 
facilities, other installations, and individuals within KMR. However, 
unnecessary interference with the free movement of persons, ships, and 
aircraft is to be avoided.
    (3) This regulation will be administered to provide the prompt 
processing of all applications and to insure uniformity of 
interpretation and application insofar as changing conditions permit.
    (4) In cases of doubt, the determination will be made in favor of 
the course of action which will best serve the interests of the United 
States and national defense as distinguished from the private interests 
of an individual or group.
    (b) Authority. (1) The Trust Territory of the Pacific Islands is a 
strategic area administered by the United States under the provisions of 
the Trusteeship Agreement for the Former Japanese Mandated Islands, 
approved by the United Nations April 2, 1947. Congress, by 48 U.S.C. 
Sec. 1681, gave responsibility for this area to the President. By 
Executive Order 11021, the President delegated this authority to the 
Secretary of Interior. By agreement between the Secretary of Interior 
and Secretary of Defense, the Navy became responsible for all entry 
control July 1, 1963. With approval of the Secretary of Defense and 
Director of the Office of Territories, the authority to control entry 
into KMR was transferred to the Army in July of 1964.
    (2) The authority of the Department of the Army to control entry of 
persons, ships, and aircraft into Kwajalein Missile Range is exercised 
through the Commander, Ballistic Missile Defense Systems Command, who is 
the National Range Commander.
    (3) Penalties are provided by law for:
    (i) Violation of regulations imposed for the protection or security 
of military or naval aircraft, airports, air facilities, vessels, 
harbors, ports, piers, waterfront facilities, bases, forts, posts, 
laboratories, stations, vehicles, equipment, explosives, or other 
property or places subject to the jurisdiction of, administration of, or 
in the custody of the Department of Defense (sec. 21 of the Internal 
Security Act of 1950 (50 U.S.C. 797) and Department of Defense Directive 
5200.8 of 29 July 1980.
    (ii) Knowingly and willfully making a false or misleading statement 
or representation in any matter within the jurisdiction of any 
department or agency of the United States (18 U.S.C. 1001).



Sec. 525.3  Criteria.

    (a) General. (1) Entry authorizations may be issued only after the 
National Range Commander, the Commander, KMR, or a duly authorized 
subordinate has determined that the presence of the person, ship, or 
aircraft will not,

[[Page 206]]

under existing or reasonably forseeable future conditions, endanger, 
place an undue burden upon, or otherwise jeopardize the efficiency, 
capability or effectiveness of any military installation located within 
Kwajalein Missile Range or areas contiguous thereto. Factors to be 
considered shall include, but not be limited to, the true purpose of the 
entry, the possible burdens or threats to the defense facilities which 
the presence of the ship, aircraft, or the individual or individuals 
involved impose or might reasonably be expected to impose on those 
islands in the Kwajalein Atoll under U.S. Army jurisdiction.
    (2) Request for entry authorizations will be evaluated and adjudged 
as to whether the entry at the time and for the purpose stated will or 
will not be inimical to the purposes of U.S. national defense.
    (b) Aliens and permanent resident aliens. (1) Entry of aliens for 
employment or residence (except as specified in paragraph 3-2.b.) in an 
area entirely within the borders of Kwajalein Missile Range is not 
authorized except when such entry would serve the interests of the U.S. 
Government, and then only for specified periods and under prescribed 
conditions. Entry application shall include the name and nationality of 
the person desiring entry.
    (2) Alien and immigrant spouses and dependents of U.S. citizen 
sponsors or principals assigned to Kwajalein Missile Range may be 
granted entry authorization by the National Range Commander so long as 
U.S. sponsor or principal remains on duty or resides within Kwajalein 
Missile Range.
    (c) Excluded persons. Excluded persons, as defined in 1-3.e., are 
normally prohibited from entering Kwajalein Missile Range. Excluded 
persons may enter Kwajalein Missile Range only when a bona fide 
emergency exists and the Commander, Kwajalein Missile Range, grants 
permission for them to enter or transit the Kwajalein Missile Range. 
While they are within the jurisdiction of the Commander, Kwajalein 
Missile Range, they will be subject to such restrictions and regulations 
as he may impose.
    (d) Unauthorized persons. Persons not authorized to enter Kwajalein 
will not normally be allowed to debark from authorized ships or aircraft 
at Kwajalein Island or other islands in the Kwajalein Atoll to which the 
U.S. Government has lease rights, except that continuing aircraft 
passengers may be allowed at the discretion of the Commander, Kwajalein 
Missile Range, to debark during aircraft ground time to remain within 
specified portions of the terminal building designated by the Commander, 
Kwajalein Missile Range. In emergency situations, entry of unauthorized 
personnel may be granted by the Commander, Kwajalein Missile Range.
    (e) Entrance to other areas of the Trust Territory. No person, 
unless a citizen, national, or permanent resident alien of the Marshall 
Islands, will be permitted to debark at Kwajalein Missile Range for the 
purpose of transiting to areas under the jurisdiction of the Republic of 
the Marshall Islands without possessing a permit issued by its Chief of 
Immigration.

    Address: Chief of Immigration, Office of the Attorney General, 
Republic of the Marshall Islands, Majuro, MI 96960.

    (f) Unauthorized marine vessels and aircraft. No unauthorized marine 
vessel or aircraft shall enter Kwajalein Missile Range unless a bona 
fide emergency exists and the Commander, Kwajalein Missile Range, has 
granted such permission. The Commander, Kwajalein Missile Range, shall 
use all means at his disposal to prevent unauthorized vessels and 
aircraft from entering Kwajalein Missile Range. Unauthorized marine 
vessels and aircraft will be seized for prosecution along with the crew, 
passengers, and cargo.
    (g) Military areas. Entries authorized under this instruction do not 
restrict the authority of the Commander, Kwajalein Missile Range, to 
impose and enforce proper regulations restricting movement into or 
within portions of Kwajalein Missile Range reserved for military 
operations.
    (h) Waivers. No one except the National Range Commander, or his duly 
authorized representative, has authority to waive the requirements of 
this regulation. Any waiver shall be in writing and signed.

[[Page 207]]

    (i) Security clearances. Organizations, including U.S. Government 
contractors, responsible for the assignment of personnel to KMR on 
either a temporary or permanent basis will comply with security 
clearance requirements for the assignment. A copy of the security 
clearance notification will be forwarded to Cdr, BMDSCOM, ATTN: BMDSC-
AU.



Sec. 525.4  Entry authorization (policy).

    (a) Personnel. (1) Persons in the following categories may enter 
Kwajalein Missile Range without obtaining specific entry authorization 
provided the Commander, Kwajalein Missile Range, is notified of 
impending entry 14 days prior to entry date:
    (i) Personnel being assigned to Kwajalein Missile Range as 
permanent-party and traveling on official orders.
    (ii) Personnel being temporarily assigned to Kwajalein Missile Range 
and who are traveling on official orders.
    (iii) Dependents of permanent-party personnel who are accompanying 
their sponsors and are traveling on official orders.
    (iv) Crew members on ships and aircraft authorized to enter 
Kwajalein Missile Range.
    (2) Persons in the following categories will submit request for 
entry authorization to the Commander, Kwajalein Missile Range, ATTN: 
BMDSC-RKE-S:
    (i) Dependents of KMR-based permanent-party personnel for the 
purpose of joining their sponsors (already stationed at KMR) on either a 
permanent or temporary basis.
    (ii) Citizens, nationals and permanent resident aliens of the 
Republic of the Marshall Islands except those who deplaned for the 
purpose of transiting Kwajalein Defense Site.
    (iii) Citizens of the Trust Territory of the Pacific Islands.
    (iv) U.S. citizen employees and officials of the Trust Territory of 
the Pacific Islands.
    (3) All other personnel, except news media representatives, will 
submit request for entry authorization to the National Range Commander, 
BMDSCOM, ATTN: BMDSC-R (electrical address: CDRBMDSCOM HUNTSVILLE AL //
BMDSC-RA//).
    (4) All requests and notifications will include the following data 
(as applicable):
    (i) Full name(s).
    (ii) Citizenship.
    (iii) Organization.
    (iv) Purpose of entry.
    (v) Point of contact at Kwajalein Missile Range.
    (vi) Inclusive dates of stay.
    (vii) Return address.
    (viii) Proof of security clearance (if access to classified 
information is required).
    (5) News media representatives require authority from the National 
Range Commander to visit Kwajalein Missile Range (news media 
representatives wishing to transit Kwajalein Island to visit any island 
not within the Kwajalein Missile Range must obtain entry authorization 
from the Republic of the Marshall Islands and present same to the air 
carrier at the point of departure to Kwajalein Island). Requests should 
be addressed to the National Range Commander, BMDSCOM, ATTN: BMDSC-S 
(electrical address: CDRBMDSCOM HUNTSVILLE AL//BMDSC-S//) and contain 
the following information:
    (i) Name.
    (ii) Date and place of birth.
    (iii) Citizenship.
    (iv) Organization(s) represented.
    (v) Objective(s) of visit.
    (vi) Desired and alternative arrival and departure dates.
    (vii) Address(es) and telephone number(s) for additional information 
and/or reply.
    (b) Ship. (1) Ships or other marine vessels in the following 
categories, except those which have been denied entry or have had a 
prior entry authorization revoked, may enter the Kwajalein Missile Range 
territorial waters upon request to and approval of the Commander, 
Kwajalein Missile Range:
    (i) U.S. private ships which are:
    (A) Under charter to the Military Sealift Command, or
    (B) Employed exclusively in support of and in connection with a 
Department of Defense construction, maintenance, or repair contract.

[[Page 208]]

    (ii) Trust Territory of the Pacific Islands/RMI ships which have 
been approved by the resident representative on Kwajalein.
    (iii) Any ship in distress.
    (iv) U.S. public ships which are providing a service to the 
Kwajalein Atoll in accordance with their agency responsibilities.
    (2) All other ships or marine vessels must obtain an entry 
authorization from the National Range Commander before entering the 
Kwajalein Atoll territorial sea. The entry authorization application 
should reach the National Range Commander at least 14 days prior to the 
desired entry date and should include the following information:
    (i) Name of ship.
    (ii) Place of registry and registry number.
    (iii) Name, nationality, and address of operator.
    (iv) Name, nationality, and address of owner.
    (v) Gross tonnage of ship.
    (vi) Nationality and numbers of officers and crew (include crew list 
when practicable).
    (vii) Number of passengers (include list when practicable).
    (viii) Last port of call prior to entry into area for which 
clearance is requested.
    (ix) Purpose of visit.
    (x) Proposed date of entry and estimated duration of stay.
    (xi) Whether ship is equipped with firearms or photographic 
equipment.
    (xii) Whether crew or passengers have in their possession firearms 
or cameras.
    (3) Entry authorizations may be granted for either single or 
multiple entries.
    (4) Captains of ships and/or marine vessels planning to enter 
Kwajalein Missile Range shall not knowingly permit excluded persons to 
board their vessels.
    (5) U.S. public ships which are authorized to enter defense areas by 
the controlling Defense Department agency may enter the Kwajalein Atoll 
territorial sea without the specific approval of either the National 
Range Commander or the Commander, KMR, provided that the Commander, KMR, 
is notified as far in advance of the impending entry as is consistent 
with the security requirements pertaining to such movement.
    (c) Aircraft. (1) Aircraft in the following categories, except those 
aircraft which have been denied entry or have had a prior entry 
authorization revoked, may enter Kwajalein Atoll airspace upon request 
to and approval of the Commander, KMR:
    (i) U.S. private aircraft which are under charter to the Military 
Airlift Command.
    (ii) Public aircraft of the Trust Territory of the Pacific Islands/
RMI which have been approved by the resident representative on 
Kwajalein.
    (iii) Private aircraft registered with and approved by the 
Commander, KMR, which are based on Kwajalein Island.
    (iv) Any aircraft in distress.
    (v) Private aircraft operated by a common carrier which is providing 
scheduled air service to or through the Kwajalein Atoll under a current 
license issued by the Department of the Army.
    (vi) U.S. public aircraft which are providing a service to the 
Kwajalein Atoll in accordance with their agency responsibilities.
    (2) All aircraft, except those categorized in paragraph 4-3.a., must 
obtain an entry authorization from the National Range Commander before 
entering Kwajalein Atoll airspace. The entry authorization application 
should reach the National Range Commander at least 14 days prior to the 
desired entry date and should include the following information:
    (i) Type and serial number of aircraft.
    (ii) Nationality and name of registered owner.
    (iii) Name and rank of senior pilot.
    (iv) Nationality and number of crew (include crew list when 
practicable).
    (v) Number of passengers (include list when practicable).
    (vi) Purpose of flight.
    (vii) Plan of flight route, including the point of origin of flight 
and its designation and estimated date and times of arrival and 
departure of airspace covered by this procedure.
    (viii) Radio call signs of aircraft and radio frequencies available.

[[Page 209]]

    (ix) Whether aircraft is equipped with firearms or photographic 
equipment.
    (x) Whether crew or passengers have in their possession firearms or 
cameras.
    (3) Entry authorizations may be granted for either single or 
multiple entries.
    (4) Captains of aircraft planning to enter Kwajalein Missile Range 
airspace shall not knowingly permit excluded persons to board their 
aircraft.
    (5) U.S. public aircraft which are authorized to enter defense areas 
by the controlling Defense Department agency may enter the Kwajalein 
Atoll airspace with the specific approval of either the National Range 
Commander or the Commander, KMR, provided that the Commander, KMR, is 
notified as far in advance of the impending entry as is consistent with 
the security requirement pertaining to such movements.



Sec. 525.5  Entry authorization (procedure).

    (a) Processing. (1) Upon receipt of an application, the appropriate 
officer (either the National Range Commander, the Commander, Kwajalein 
Missile Range or the designated representative) shall take the following 
actions:
    (i) Determine that the entry of the applicant is, or is not, in 
accordance with the criteria set forth in chapter 3. After having made a 
determination, the reviewing authority shall either:
    (A) Issue an entry authorization as requested, or with modifications 
as circumstances require; or
    (B) Deny the request and advise the applicant of his/her right to 
appeal in accordance with the provisions of paragraph 5-2.
    (ii) If the reviewing authority feels that additional information is 
required before reaching a decision, the reviewing authority will 
request that information from the applicant and then proceed as in 
paragraph 5-1.a.(1).
    (iii) If, after having obtained all pertinent information, the 
reviewing authority cannot reach a decision, he/she will forward the 
application to the next higher headquarters. A statement containing the 
following information shall accompany the application:
    (A) A summary of the investigation conducted by the reviewing 
organization.
    (B) The reason the application is being forwarded.
    (C) Appropriate comments and/or recommendations.
    (2) All applicants will be kept fully informed of actions/decisions 
pertaining to his/her application. Normally a response will be forwarded 
to the applicant within ten working days after receipt of an 
application. When the National Range Commander responds to an 
application, he/she will send a copy of that response to the Commander, 
KMR. When the Commander, Kwajalein Missile Range, responds to an 
application, and the National Range Commander has an interest in the 
visit, the Commander, KMR, will concurrently send a copy of that 
response to the National Range Commander.
    (3) Entry authorizations shall state the purpose for which the entry 
is authorized and such other information and conditions as are pertinent 
to the particular authorization.
    (b) Revocations. (1) Entry authorizations may be revoked by the 
National Range Commander or the Commander, Kwajalein Missile Range, for 
misconduct, or termination of status, or upon being advised of the 
discovery of information which would have been grounds for denial of the 
initial request. Such a revocation will be confirmed in writing to the 
holder of an entry authorization. When an entry authorization is 
revoked, a one-way permit will be normally issued as appropriate, to 
permit the ship, aircraft, or person to depart the area.
    (2) When Commander, Kwajalein Missile Range revokes an entry 
authorization, he shall forward a copy of such revocation with 
supporting documentation to the National Range Commander.
    (c) Appeals. (1) Appeals from entry denial or revocation by 
Commander, Kwajalein Missile Range will be filed with the National Range 
Commander. An appeal shall contain a complete statement of the purpose 
of the proposed entry and a statement or reasons why the entry should be 
authorized, or

[[Page 210]]

why revocation of entry authorization should not be enforced.
    (2) Final appeal letters will be forwarded promptly by the National 
Range Commander to the BMD Program Manager with an indorsement setting 
forth in detail the facts and circumstances surrounding the action 
taken.
    (d) Renewals. Entry authorizations having been granted and utilized 
may be extended or renewed upon request at the expiration of the period 
for which the entry was originally authorized or extended provided the 
justification for remaining in the area or for making a reentry meets 
the criteria set forth in this procedure. It shall be the responsibility 
of every applicant to depart Kwajalein Missile Range upon expiration of 
the time prescribed in the entry authorization, unless such 
authorization has been extended or renewed. Failure to comply herewith 
will be considered as evidence or violation of this procedure and may 
result in denial of future authorizations.



PART 527--PERSONAL CHECK CASHING CONTROL AND ABUSE PREVENTION--Table of Contents




                         Subpart A--Introduction

                           Section I--General

Sec.
527.1  Purpose and scope.
527.2  References.
527.3  Explanation of abbreviations and terms.
527.4  Department of the Army (DA) objective.

                      Section II--Responsibilities

527.5  Director, Finance & Accounting, Assistant Secretary of the Army 
          (Financial Management).
527.6  Deputy Chief of Staff for Personnel/U.S. Army Community and 
          Family Support Center.
527.7  Heads of Headquarters, Department of the Army and field operating 
          agencies.
527.8  Commanders of major Army commands (MACOMs).
527.9  Commanding General, U.S. Army Training and Doctrine Command.
527.10  Installation commanders.
527.11  Unit commanders.
527.12  Supervisors of civilians.
527.13  Installation check control officer.
527.14  Finance officer.
527.15  Personnel Administration Center.
527.16  Director of Personnel & Community Activities.
527.17  Heads of check-cashing facilities.
527.18  Persons with check-cashing privileges.

                           Subpart B--Controls

                            Section I--Policy

527.19  Authority.
527.20  General.
527.21  Two party checks.
527.22  Sponsor responsibility.

                   Section II--Offenses and Penalties

527.23  Offense and related offense.
527.24  Bank or other excusable error.
527.25  First offense.
527.26  Second offense.
527.27  Third offense.
527.28  Fourth or greater offense.

                          Subpart C--Procedures

527.29  Check-cashing facility.
527.30  Unit commander.
527.31  Supervisor of civilians.
527.32  Installation check control officer.
527.33  Identification card issuing facility.
527.34  Personnel of other Services.
527.35  Appeals.
527.36  Disposal and transfer of records.

       Subpart D--Monthly Dishonored Check Report, RCS: CSCOA-105

527.37  Purpose.
527.38  Source of data.
527.39  Preparation.
527.40  Frequency, routing, and due dates.
527.41  Relinquishing data.

                           Subpart E--Training

527.42  Ethics and military competence.
527.43  Personal financial readiness/soldier money management (PFR/SMM).
527.44  Initial entry training.
527.45  Remedial training.

Appendix A to Part 527--References

    Authority: 5 U.S.C. 5511-5512; 37 U.S.C. 1007; 18 U.S.C. 1382; 
Articles 123a, 133, and 134, Uniform Code of Military Justice (UCMJ, Art 
123a, 133, and 134).

    Source: 53 FR 19286, May 27, 1988, unless otherwise noted.



                         Subpart A--Introduction

                           Section I--General



Sec. 527.1  Purpose and scope.

    (a) This regulation prescribes policies and procedures to--

[[Page 211]]

    (1) Control and prevent abuse of check-cashing privileges.
    (2) Reduce losses to appropriated fund (AF) and nonappropriated fund 
(NAF) activities.
    (b) Policies and procedures for cashing checks or redeeming 
dishonored checks at check-cashing facilities are not within the scope 
of this regulation. These are prescribed by the proponent agencies of 
the activities providing check-cashing services to patrons for their 
facilities in--
    (1) AR 60-20/AFR 147-14 and Exchange Service Manual 55-21 for Army 
and Air Force Exchange Service (AAFES) facilities.
    (2) AR 30-19 and the Commissary Operating Manual for commissary 
resale activities.
    (3) AR 215-1 and AR 215-2 for U.S. Army Community and Family Support 
activities.
    (4) AR 37-103 for finance and accounting offices.
    (c) Policies and procedures for all suspensions of check-cashing 
privileges and appeal actions on such suspensions, regardless of where 
the dishonored check was returned on the installation, are governed by 
this regulation.



Sec. 527.2  References.

    Required and related publications are listed in appendix A to this 
part.



Sec. 527.3  Explanation of abbreviations and terms.

    Abbreviations and special terms used in this regulation are 
explained in the glossary.



Sec. 527.4  Department of the Army (DA) objective.

    Prevention of abuse of check-cashing privileges includes all 
measures taken to reduce acts of abuse or misuse to the lowest possible 
level. Factors leading to this abuse stem mainly from lack of education 
and experience in managing personal finances. The DA objective is to 
ensure all soldiers acquire and maintain knowledge, skills, and 
motivation needed to practice responsible personal financial management.

                      Section II--Responsibilities



Sec. 527.5  Director, Finance & Accounting, Assistant Secretary of the Army (Financial Management).

    The Director, Finance & Accounting, Assistant Secretary of the Army 
(Financial Management) (OASA (FM)) establishes and administers the 
Department of the Army (DA) program to control and prevent abuse of 
check-cashing privileges on Army installations by Department of Defense 
(DOD) personnel. The Director, Finance & Accounting (OASA(FM)) will--
    (a) Give technical assistance to major Army commands (MACOMs) and 
installations with regard to their dishonored check programs.
    (b) Coordinate with Deputy Chief of Staff, Personnel (DCSPER)/
USACFSC on aspects of the check-cashing abuse prevention program 
pertaining to morale and welfare.
    (c) Maintain liaison with the Deputy Chief of Staff for Operations 
and Plans and the Commanding General, U.S. Army Training and Doctrine 
Command (TRADOC) on Personal Financial Readiness/Soldier Money 
Management (PFR/SMM) in DA service schools and training centers.



Sec. 527.6  Deputy Chief of Staff for Personnel/U.S. Army Community and Family Support Center.

    The Deputy Chief of Staff for Personnel/U.S. Army Community and 
Family Support Center (DCSPER/USACFSC) will--
    (a) Advise the Director, Finance & Accounting (OASA (FM)) on 
personnel aspects of the program affecting the morale and welfare of DA 
members.
    (b) Establish, maintain, and administer PFR/SMM and counseling 
services for DA personnel and their family members within the Army 
Community Service (ACS) Center program.
    (c) Coordinate with the Director, Finance & Accounting (OASA(FM)) on 
the PFR/SMM aspect of the ACS consumer education training and budget 
counseling.
    (d) Include PFR/SMM in the curriculum of the Army Continuing 
Education System and other DA schools administered by DSCPER that serve

[[Page 212]]

DA personnel and their family members.



Sec. 527.7  Heads of Headquarters, Department of the Army and field operating agencies.

    Heads of Headquarters, Department of the Army (HQDA) and field 
operating agencies will--
    (a) Prescribe procedures and conditions for providing check-cashing 
service to patrons of their facilities.
    (b) Coordinate with the Director, Finance & Accounting (OASA(FM)) on 
policies and procedures to control and prevent dishonored checks. (See 
AR 310-3, para 1-9.)



Sec. 527.8  Commanders of major Army commands (MACOMs).

    MACOM commanders will--
    (a) Support and monitor the Dishonored Check Control Program--
    (1) At intermediate or subordinate commands.
    (2) At installations reporting directly to their headquarters.
    (b) Give policy and procedural guidance to subordinate elements 
within their jurisdictions.
    (c) Monitor effectiveness of the command Dishonored Check Control 
Program.
    (d) Evaluate the Dishonored Check Control Program monthly.
    (e) Ensure all subordinate elements within their jurisdiction 
conduct ongoing PFR/SMM training and educational programs. (See Training 
Circular 21-7)
    (f) Establish a monitoring and evaluation system to ensure--
    (1) Training programs are managed effectively.
    (2) Training programs agree with DA goals, objectives, and 
guidelines.



Sec. 527.9  Commanding General, U.S. Army Training and Doctrine Command.

    The Commanding General, U.S. Army Training Doctrine Command (TRADOC) 
will--
    (a) Develop and maintain the course of instruction for the PFR/SMM 
training of all soldiers.
    (b) Ensure time is allotted in basic training, advanced individual 
training, or one station unit training for--
    (1) Training of enlistees.
    (2) Repeat of the course for trainees not achieving the lesson 
standard.
    (c) Ensure programs of instruction (POI) of the Army Finance School 
include courses that equip finance officers and noncommissioned officers 
to assist in providing PFR/SMM to soldiers and units in the field. (See 
Training Circular 21-7).



Sec. 527.10  Installation commanders.

    Installation commanders (or equivalent) or designated 
representatives will--
    (a) Maintain, support, and monitor installation programs to control 
and prevent abuse of check-cashing privileges.
    (b) Set up check control offices under the direct control of active 
duty commissioned or warrant officers, senior noncommissioned officers, 
or DA civilians GS-7 and above. Prior to the appointment of an 
installation check control officer (ICCO), the commander should review 
the provisions of Secs. 527.13 and 527.31, and consider which major 
organizational element has staff supervision over--
    (1) The majority of check-cashing facilities.
    (2) The extension or withdrawal of installation privileges.
    (3) The overstamping of identification (ID) cards.
    (c) Ensure that if responsibility of ICCO is transferred from one 
organizational element to another, that resources are transferred also.
    (d) Approve/disapprove appeals of suspended check-cashing privileges 
when checkwriter has committed four or more offenses.
    (e) Appoint an individual or individuals serving at an installation 
staff directorate level to act on appeals of suspended check-cashing 
privileges when the checkwriter has committed 3 offenses.
    (f) Appoint an individual or individuals serving at an installation 
staff division level to act on appeals of suspended check-cashing 
privileges when the checkwriter has committed 2 offenses.
    (g) Ensure the priority of educational efforts is based on the needs 
of personnel under their command.

[[Page 213]]

    (h) Ensure the POI for suspended personnel will stress--
    (1) Career consequences of abuse of check-cashing privileges.
    (2) Referral to individual and family counseling sources, when 
required.
    (i) During inprocessing at permanent change of station for the 
following:
    (1) Soldiers (E1 through E5). Emphasis will be on--
    (i) Basics of checkbook management.
    (ii) Check to financial organization pay option.
    (iii) Consequences of abuse of check-cashing privileges.
    (iv) Counseling services.
    (2) Leaders (E6 through E9 and officers). Education will stress--
    (i) The command unique elements of the dishonored check problem.
    (ii) Leaders' responsibilities for role setting, training troops, 
and applying discipline.
    (3) DA civilians and Family members. Education and counseling will 
be offered on a voluntary basis in accordance with AR 608-1.



Sec. 527.11  Unit commanders.

    Unit commanders will assist the post/installation commander in the 
control and prevention of check-cashing privilege abuse. Unit commanders 
will--
    (a) Advise all newly arrived personnel during the initial interview 
of their responsibilities for the proper use of personal checking 
accounts and check-cashing privileges and ensuring that their family 
members are aware of the same. Also determine the capabilities of the 
soldier for maintaining their checking account.
    (b) Deliver notices of dishonored check offenses and suspensions to 
unit members and counsel them within 2 days of written notification.
    (c) Take actions to properly settle the personal debts of soldiers 
if soldiers under their command issue dishonored checks. Articles 15, 
121, 123a, and 133 or 134 of the UCMJ may be applied as stated in AR 
600-20, para 5-10.
    (d) Approve/disapprove appeals of suspended check-cashing privileges 
if a soldier or family member has committed a first offense.
    (e) Recommend approval or disapproval of appeal actions to the 
individual appointed by the installation commander for 2 or more 
offenses.
    (f) Determine whether the overstamping of an ID card is necessary if 
this is the checkwriter's first or second offense. As a disciplinary and 
control action this is advised.
    (g) Schedule soldiers for remedial training and encourage family 
members who have written dishonored checks to attend this training.



Sec. 527.12  Supervisors of civilians.

    Where DOD civilians are authorized check-cashing privileges the 
supervisors of these civilians will--
    (a) Deliver notices of dishonored check offenses and suspensions to 
employees and counsel them.
    (b) Approve/disapprove appeals of suspended check-cashing privileges 
if the employee has committed a first offense.
    (c) Recommend approval or disapproval of appeal actions to the 
individual appointed by the installation commander for 2 or more 
offenses.
    (d) Schedule employees for remedial training when the checkwriter 
has committed an offense.



Sec. 527.13  Installation check control officer.

    The ICCO is the primary contact for dishonored check matters The 
ICCO will--
    (a) Serve as liaison between commander and check-cashing facilities.
    (b) Be authorized to suspend check-cashing privileges.
    (c) Maintain and circulate a dishonored check list. (See 
Sec. 527.32(c))
    (d) Maintain a central file of dishonored checkwriters (See 
Sec. 527.32(a))
    (e) Establish a grace period of 10 calendar days. The grace period 
will be 10 calendar days from the date of the written dishonored check 
notification. The ICCO may allow additional time on a case by case basis 
(i.e. checkwriter is TDY or no leave away from the installation.). There 
will be a standard grace period for all check-cashing facilities.
    (f) Establish an installation test on checkbook maintenance. Those 
attending remedial training will have to pass this test prior to being 
removed from the dishonored check list. The test

[[Page 214]]

may be open book. The test criteria should include:
    (1) Posting samples of: checks written, deposits (direct deposits, 
interest, cash, and checks), check charges, printing fees, and bank card 
transactions.
    (2) Maintaining the check register balance.
    (3) Reconciling check register to bank statement.
    (4) Scoring 70 or greater to pass.
    (g) Evaluate the effectiveness of the installation Dishonored Check 
Control Program using the Monthly Dishonored Check Report (RCS: CSCOA-
105). Distribute the report in accordance with Sec. 527.40.
    (h) Set up points of contact with all installation facilities 
providing financial management and consumer awareness training and 
counseling. Make unit commanders aware of these resources.
    (i) Notify installation commander and military police or Army 
criminal investigation office of any pattern of check-cashing abuse 
suggesting fraud, forgery, or improper use of ID cards.
    (j) Set up liaison with installation ID card issuing facility.
    (k) Reinstate check-cashing privileges when an appeal has been 
approved in accordance with Secs. 527.25 through 527.28 or when the 
suspension period is over. The checkwriter must have redeemed the 
dishonored check, paid the administrative/service charges, attended 
remedial training, and passed the installation test on checkbook 
maintenance.
    (l) Maintain and conduct an effective installation PFR/SMM program, 
as required by subpart E. (See Training Circular 21-7).
    (m) Maintain a counseling or counseling referral service to help 
personnel solve personal financial problems, develop budgets, formulate 
debt liquidation plans, get consumer protection, and buy on credit 
wisely. All installation resources will be used to develop this service; 
for example, ACS centers and on post financial institutions. Counseling 
services will be open to personnel and their families on a voluntary 
basis.
    (n) Ensure DA issued articles are published in post media in 
coordination with the public affairs office. Publicize benefits of the 
counseling service, with emphasis on the preventive nature of the 
program.



Sec. 527.14  Finance officer.

    The finance officer will assist the ICCO in the control and 
prevention of check-cashing privilege abuse. The finance officer will--
    (a) Assist the unit commander in conducting training for personnel 
in checkbook maintenance by providing instructional material.
    (b) Provide installation commander with management information 
concerning the level of dishonored checks using the Monthly Dishonored 
Check Report (Fig 4-1).
    (c) Cash a soldier's personal check when the soldier is on the 
dishonored check list, is on SURE-PAY, has a non-local checking account, 
and the soldier has a written request from his/her commander to the 
finance officer requesting this service. If the check is returned due to 
insufficient funds, collection action will occur IAW DODPM and AR 37-103 
for the amount of the check, plus any administrative or service charge.
    (d) Establish procedures in Central Accounting Office for accounting 
for nonappropriated fund dishonored checks.
    (e) Process DD Form 139 (Pay Adjustment Authorization) received from 
the check-cashing facility and return completed copy to the ICCO.
    (f) Distribute amounts collected from soldier's or civilian's pay to 
the appropriate check-cashing facility.
    (g) Analyze the RCS CSCOA-105 received from the ICCO.
    (h) Inform the installation commander of dishonored check analysis.



Sec. 527.15  Personnel Administration Center.

    The Personnel Administration Center (PAC) will assist unit 
commanders by completing some of the paperwork and other administrative 
details. Where PACs do not exist the unit commander will be responsible 
for completing these actions as well as those listed in Sec. 527.11. The 
PAC will--
    (a) Schedule soldiers and family members for remedial training when

[[Page 215]]

the checkwriter has committed an offense.
    (b) Notify the ICCO when timely notification of dishonored check or 
suspension cannot be made because the soldier is absent from duty due to 
TDY, hospitalization, etc.
    (c) Verify ID card overstamping has occurred and notify ICCO in 
writing.



Sec. 527.16  Director of Personnel & Community Activities.

    The Director of Personnel & Community Activities (DPCA) will--
    (a) Overstamp ID cards when requested by the ICCO.
    (b) Ensure the quality of PFR/SMM training taught at the 
installation.



Sec. 527.17  Heads of check-cashing facilities.

    In addition to the requirements of their proponent agencies, heads 
of check-cashing facilities will--
    (a) Coordinate with the ICCO on administrative matters relating to 
the Dishonored Check Control Program.
    (b) Ensure all personnel under their supervision know the 
installation policies and procedures for cashing checks and review the 
ICCO dishonored checklist prior to approving checks for encashment.
    (c) Prominently display the sign cited below at each check-cashing 
point:

NOTICE TO CHECK CASHERS: DISCLOSURE OF SOCIAL SECURITY NUMBER (SSN) AND 
OTHER PERSONAL INFORMATION IS SOLICITED BY AUTHORITY OF SECTION 3012 AND 
8012, TITLE 10, UNITED STATES CODE, AND IS MANDATORY IF YOU WISH TO CASH 
A CHECK.
    ALL INFORMATION FURNISHED, INCLUDING SSN, WILL BE USED TO IDENTIFY 
WRITERS OF CHECKS RETURNED UNPAID.

    (d) Require a consent statement authorizing immediate collection 
from pay for a dishonored check be placed on each check and signed by 
the individual. The consent statement to use is: ``If this check is 
returned as dishonored, I consent to immediate collection from my pay 
for the amount of the dishonored check plus any related service or 
administrative charges.'' A prominently displayed consent sign at check 
cashing points may be used in lieu of the statement placed on each 
check.
    (e) Obtain a stamp for recording additional information on the back 
of all personal checks if the information is not on the face of the 
check. This information is: name, rank, SSN, duty station, home address, 
home/duty phone number, and branch of service.
    (f) Notify checkwriters in writing through their unit commander or 
first line supervisor for civilian employees of a dishonored check that 
has been returned by the financial institution.



Sec. 527.18  Persons with check-cashing privileges.

    All persons with check-cashing privileges will--
    (a) Fill out check properly and legibly. Include all information to 
be recorded on the back. Checks should be completed in black or blue/
black ink, not water soluble. A pencil or any other type of writing 
instrument that can be erased, changed, or modified should not be used.
    (b) Maintain sufficient funds in their checking account to cover the 
full amount of the checks.
    (c) Notify the ICCO, unit commander, military police, and bank upon 
discovery of any lost/stolen personal checks.
    (d) Provide check-cashing facilities with required information when 
attempting to cash a check.
    (e) Have their ID card overstamped when directed to do so.
    (f) Take full responsibility for any check cashed on their checking 
account including those cashed by family members.
    (g) Redeem all checks written against their checking account which 
have been returned for insufficient funds.
    (h) Attend remedial training when directed to do so by the ICCO.
    (i) Distribute copies of disclaimer notices to check-cashing 
facilities.



                           Subpart B--Controls

                            Section I--Policy



Sec. 527.19  Authority.

    (a) Policies in this regulation are based on statutory authority 
including, but not limited to, the following:

[[Page 216]]

    (1) Sections 5511-5512, title 5, United States Code.
    (2) Section 1007, title 37, United States Code.
    (3) Section 1382, title 18, United States Code.
    (4) Articles 123a, 133, 134, Uniform Code of Military Justice (UCMJ, 
Art. 123a, 133, and 134).
    (b) Debts to instrumentalities and agencies of the United States can 
be collected from military personnel by involuntary deductions from 
their pay when such action is authorized by law. (See Department of 
Defense Military Pay and Allowances Entitlements Manual (DODPM), part 
seven, chapter 7, and Department of Defense Retired Pay Manual 
(DODRPM).)



Sec. 527.20  General.

    (a) DA policy is to give maximum service to persons entitled to use 
Army facilities. Installation activities extend check-cashing privileges 
for the convenience of their customers.
    (b) The personal check is more than a simple promise to pay. By 
signing a check, the person makes a binding agreement to the receiver 
(in exchange for goods, services, or cash) that enough money to cover 
the check is in the person's account.
    (c) The number of dishonored checks and the subsequent loss of funds 
to Army facilities call for firm measures to control and prevent 
dishonored checkwriting. Timely administrative action will be taken in 
all cases involving abuse or misuse of check-cashing privileges. Moral 
persuasion and command supervision will be used as primary measures to 
ensure dishonored checks are promptly redeemed and dishonored 
checkwriting ceases. Commanders will not tolerate or make excuses for 
dishonored checks issued by soldiers and their family members. Soldiers, 
their eligible family members, and other authorized patrons of Army 
facilities are expected to pay their just financial debts. Commanders 
will take immediate action to ensure prompt redemption of dishonored 
checks. They will counsel and take disciplinary action where appropriate 
to prevent abuse or fraud by soliders under their command.
    (d) Patrons who have abused check-cashing privileges will be given a 
chance to present evidence in their behalf. (See Secs. 527.24 and 
527.35.)
    (e) Patrons may have their check-cashing privileges suspended 
indefinitely if they show a chronic attitude of personal and financial 
irresponsibility.
    (f) If a person is found using an unstamped ID card during their 
suspension period and when they are required to have their card 
overstamped, the person's check-cashing privileges may be suspended 
indefinitely.
    (g) Suspension procedures in this chapter do not preclude action 
under the UCMJ.
    (h) All persons who abuse check-cashing privileges are subject to 
pertinent civil laws. Reported check-cashing abuses may be referred to 
civil law enforcement authorities or, if applicable under local U.S. 
procedures, to a U.S. magistrate. (See AR 190-29.)



Sec. 527.21  Two party checks.

    When a two party check is returned ``unpaid'', the endorser may be 
subject to the dishonored check provision of this regulation only if the 
endorser fails to redeem the check within the grace period. If the 
original maker of the check is proven to have written a previous 
dishonored check, then an additional offense will be charged to the 
original maker and appropriate suspension imposed. If the endorser is 
currently under suspension, an additional offense will be charged and 
the suspension period will be increased. The endorser will be required 
to execute a consent statement to authorize collection from his/her pay 
if the two party check is returned for insufficient funds. The consent 
statement to be executed by the endorser is stated in Sec. 527.17(d).



Sec. 527.22  Sponsor responsibility.

    (a) Sponsors may be held liable for acts of family members when a 
family member uses their dependent ID card and their sponsor's SSN for 
check cashing. If a family member commits an offense under these 
conditions, the sponsor may then be placed on the dishonored checklist. 
The family member may be placed on the dishonored checklist in their own 
right if they

[[Page 217]]

used a civilian ID card with their own SSN as identification and the 
check becomes dishonored.
    (b) Sponsors who wish to disclaim responsibility for dishonored 
checks written by family members may do so by filing a letter of 
disclaimer with the ICCO. (See fig. 2-1 for a sample letter.) This 
letter announces a sponsor's voluntary withdrawal of responsibility for 
acts of family members. It will be updated annually. Absence of a 
disclaimer does not prove agency relationship between sponsor and family 
members.
    (c) Some facilities may deny check-cashing privileges to family 
members of sponsors who have filed a letter of disclaimer. The sponsor 
will inform family members of this denial.

                   Section II--Offenses and Penalties



Sec. 527.23  Offense and related offense.

    (a) Offense. An offense has been committed when an individual does 
not redeem a dishonored check or redeems 3 or more checks within the 
grace period.
    (b) Related offense. An individual may write several dishonored 
checks which are related. For example one error in the checkbook could 
cause several dishonored checks. All of these dishonored checks are 
considered related to each other and if not redeemed will be considered 
as a single offense. The individual must prove to the ICCO that the 
dishonored checks are related. If proof is not provided, each dishonored 
check will be considered an offense if not redeemed within the grace 
period. Related checks normally occur within a 10 day period.



Sec. 527.24  Bank or other excusable error.

    If an individual can prove bank or other excusable error, dishonored 
checks resulting from these errors will not be considered offenses. The 
checkwriter's name will not be added to any list or central file.



Sec. 527.25  First offense.

    (a) An individual who writes a check which later becomes dishonored 
and does not redeem it within the grace period has committed a first 
offense.
    (b) An individual who writes 3 dishonored checks which are unrelated 
to each other and redeems them all within the grace period has committed 
a first offense.
    (c) The penalty for a first offense is required attendance at 
remedial training and suspension of check-cashing privileges for 6 
months from date of suspension letter. The ID card may be overstamped.
    (d) The individual may be removed from the dishonored checklist 
prior to the end of the suspension period if the check has been 
redeemed, all charges have been paid, remedial training has been 
completed, the individual has passed the installation checkbook 
maintenance test, and the unit commander (for soldiers and family 
members) or first line supervisor (for civilians) approves.



Sec. 527.26  Second offense.

    (a) An individual who writes a second dishonored check, unrelated to 
the first dishonored check, and does not redeem it within the grace 
period has committed a second offense.
    (b) An individual who writes 4 dishonored checks which are unrelated 
to each other and redeems them all within the grace period has committed 
a second offense.
    (c) The penalty for a second offense is required attendance at 
remedial training and suspension of check-cashing privileges for 12 
months from date of suspension letter if checkwriter is not currently on 
the dishonored checklist. If the checkwriter is currently on the 
dishonored checklist, the suspension period will be increased by 12 
months. The ID card may be overstamped.
    (d) The individual may be removed from the dishonored checklist 
prior to the end of the suspension period if the check has been 
redeemed, all charges have been paid, remedial training has been 
completed, the individual passed the installation checkbook maintenance 
test, and the individual appointed by the installation commander 
(Sec. 527.10(f)) so approves.



Sec. 527.27  Third offense.

    (a) An individual who writes a third dishonored check, unrelated to 
the previous dishonored checks, and does not

[[Page 218]]

redeem it within the grace period has committed a third offense.
    (b) An individual who writes 5 dishonored checks which are unrelated 
to each other and redeems them all within the grace period has committed 
a third offense.
    (c) The penalty for a third offense is required attendance at 
remedial training overstamping of the ID card, and suspension of check-
cashing privileges for 18 months from date of suspension letter if the 
checkwriter is not currently on the dishonored checklist. If the 
checkwriter is currently on the dishonored checklist, the suspension 
period will be increased by 18 months.
    (d) The individual may be removed from the dishonored checklist 
prior to the end of the suspension period if the check has been 
redeemed, all charges have been paid, remedial training has been 
completed, the individual passed the installation checkbook maintenance 
test, and the individual appointed by the installation commander 
(Sec. 527.10(c)) so approves.



Sec. 527.28  Fourth or greater offense.

    (a) An individual who writes a fourth dishonored check, unrelated to 
the previous checks, and does not redeem it within the grace period has 
committed a fourth offense.
    (b) An individual who writes 6 dishonored checks which are unrelated 
to each other and redeems them all within the grace period has committed 
a fourth offense.
    (c) The penalty for a fourth offense is required attendance at 
remedial training, overstamping of the ID card, and suspension of check-
cashing privileges indefinitely from the date of suspension letter.
    (d) The individual may be removed from the dishonored checklist if 
the check has been redeemed, all charges have been paid, remedial 
training has been completed, the individual passed the installation 
checkbook maintenance test, and the installation commander 
(Sec. 527.10(d)) so approves.



                          Subpart C--Procedures



Sec. 527.29  Check-cashing facility.

    In addition to the requirements of its proponent agency, the head of 
the facility to which a check is returned unpaid will do the following:
    (a) Notify the checkwriter through the checkwriter's unit commander 
(for soldier or family member) or checkwriter's supervisor (for 
civilian) of the dishonored check. See figure 3-1 for a sample 
notification letter. A copy of the notification will be furnished to the 
ICCO. Sufficient copies will be sent to the commander or supervisor so a 
copy can be returned to the ICCO acknowledging receipt and indicating 
action to be taken. Notices will include, but are not limited to, the 
following:
    (1) Name of checkwriter (or endorser, if a two party check).
    (2) Date and amount of check.
    (3) SSN of checkwriter.
    (4) Status (active duty, retired, Reserve, National Guard, family 
member, civilian employee, etc.) and service (Army, Navy, Air Force, 
Marine Corps, or Coast Guard).
    (5) Name, grade, SSN, and duty station of sponsor, if applicable.
    (6) Home address and telephone number.
    (7) Clear instructions covering--.
    (i) Method of redemption.
    (ii) Time allowed in which redemption must be made.
    (iii) Administrative/service charges.
    (iv) Appeal rights.
    (b) Notify the ICCO as soon as--
    (1) The check is redeemed. Provide date of redemption.
    (2) Written evidence is furnished proving a bank or other error 
clearing the checkwriter of fault.
    (3) The checkwriter fails to redeem the check within the grace 
period.
    (4) The check is written off.
    (c) Begin action for collection from pay when authorized, if all 
efforts at direct collection fail. (See AR 37-108, AR 37-104-3, and AR 
37-104-10.)



Sec. 527.30  Unit commander.

    On receipt of notice that a soldier or a soldier's family member of 
a commander's unit has written a dishonored check or has been placed on 
the dishonored checklist, the unit commander will (Some of these actions 
may be done by the PAC where PACs exist.)--

[[Page 219]]

    (a) Deliver the notice and counsel the checkwriter to comply with 
the requirements of the notice. See figure  3-2 for a sample counseling 
statement.
    (b) Return copy of notification letter to the ICCO within 10 
calendar days stating whether the dishonored check was redeemed within 
the grace period.
    (c) Assist the checkwriter in determining the cause of the 
dishonored check. Make proper referral if budget counseling or financial 
assistance is needed.
    (d) Assist the checkwriter in obtaining proof of bank or other 
excusable error clearing the checkwriter of fault.
    (e) Schedule remedial checkbook maintenance training and ensure the 
checkwriter attends the training.
    (f) Determine if checkwriter should have ID card overstamped if this 
is the first or second offense. If the decision is to overstamp the ID 
card, the unit commander will--
    (1) Ensure the checkwriter receives notification and is counseled to 
comply with the instructions.
    (2) Refer checkwriter to ID card issuing facility for reissuing of 
new ID card with overstamp.
    (3) Ensure that the checkwriter received an overstamped ID card.
    (4) Notify ICCO within 15 days from date of notification letter 
which notified the checkwriter of placement on dishonored checklist that 
ID card was overstamped.
    (g) Work with the finance officer to cash checks for a soldier who 
is on the dishonored check list, is on SURE-PAY, and has a non-local 
bank account.
    (h) Ensure checkwriter redeems the check and pays any 
administrative/service charge.
    (i) Take administrative or disciplinary action, when proper. (See AR 
600-31 and AR 600-37.)
    (j) Approve/disapprove appeal actions on first offense if remedial 
training has been completed, the checkwriter passed the installation 
checkbook maintenance test, the check has been redeemed, and the 
administrative/service charges have been paid. If approval is given, 
send a letter to the ICCO stating that approval is granted to remove the 
soldier or family member from the dishonored checklist. Letter must 
indicate action taken on counseling and training, that the checkwriter 
passed the installation test on checkbook maintenance, that checks have 
been redeemed, and administrative/service charges have been paid.
    (k) Forward appeal actions on second and greater offenses to the 
individual designated by the installation commander to handle such 
appeal actions if the conditions in paragraph (j) of this section.
    (l) Maintain soldier on SURE-PAY if at all possible.



Sec. 527.31  Supervisor of civilians.

    On receipt of notice that a civilian employee under his/her 
supervision has written a dishonored check or has been placed on the 
dishonored checklist, the first line supervisor will--
    (a) Deliver the notice and counsel the checkwriter to comply with 
the requirements of the notice.
    (b) Return a copy of the notification to ICCO within 10 calendar 
days of date of notice indicating receipt and proposed action to be 
taken.
    (c) Schedule remedial checkbook maintenance training and ensure the 
checkwriter attends the training.
    (d) Ensure checkwriter redeems check(s) and pays any administrative 
service charges.
    (e) Approve/disapprove appeal actions on first offense if training 
has been completed, the checkwriter passed the installation checkbook 
maintenance test, the check has been redeemed, and the administrative/
service charges have been paid. If approval is given, send a letter to 
ICCO stating that approval is granted to remove the checkwriter from the 
dishonored checklist. Letter must indicate action taken on counseling 
and training, that the checkwriter passed the installation checkbook 
maintenance test, that the check has been redeemed, and that 
administrative/service charges have been paid.
    (f) Forward appeal actions of second or greater offenses to 
individual designated by the installation commander if the conditions in 
paragraph (e) above have been met.

[[Page 220]]



Sec. 527.32  Installation check control officer.

    (a) On receipt of notice from the check-cashing facility that a 
check was returned as dishonored, the ICCO will update the central file 
on dishonored checkwriters. (See Sec. 527.13(d)). This file will 
contain, as a minimum, the following information:
    (1) Name and SSN.
    (2) Status (active duty, retired, Reserve, National Guard, family 
member, civilian employee, etc.) and Service (Army, Navy, Air Force, 
Marine Corps, or Coast Guard).
    (3) Name, grade, and SSN of sponsor, if applicable.
    (4) Organization address and telephone number.
    (5) Home address and telephone number.
    (6) Amount of dishonored check.
    (7) Date check was returned as dishonored.
    (8) Date check was redeemed.
    (9) Effective date of suspension of check-cashing privileges.
    (10) Date check-cashing privileges are restored.
    (b) The central file on dishonored checkwriters will be maintained 
on all personnel, including those who redeem the dishonored check within 
the grace period. The file will be used for reference to identify repeat 
offenders.
    (c) The dishonored checklist will be updated at least monthly to 
accurately show the current status of suspensions. The list will include 
suspension expiration dates and will be circulated at least monthly to 
installation check-cashing and ID card issuing facilities. On post banks 
and credit unions may also receive a copy of the dishonored checklist. 
The list may not be circulated to any other institution on or off the 
installation.
    (d) The ICCO may be provided terminal access to an electronic check 
verification system. The ICCO may use this system to verify check-
cashing privileges of individual checkwriters at the request of 
installation check-cashing facilities.
    (e) If the checkwriter commits a first offense (see Sec. 527.25), 
the ICCO will--
    (1) Add the checkwriter's name to the dishonored check list.
    (2) Suspend check-cashing privileges for 6 months.
    (3) Inform the commander (supervisor if checkwriter is a civilian) 
and checkwriter by letter that check-cashing privileges are suspended 
for 6 months from the date of letter and that the checkwriter must 
attend remedial training. (See figure 3-3.) The check writing privileges 
will be restored when the suspension period is over or earlier if the 
checkwriter has met the conditions in Sec. 527.25(d) and the unit 
commander for soldiers and their family members or the first line 
supervisor for civilians decides to restore check-cashing privileges 
sooner.
    (f) If the checkwriter commits a second offense (See Sec. 527.26), 
the ICCO will--
    (1) Add the checkwriter's name to the dishonored checklist if 
currently not on the list.
    (2) Suspend check-cashing privileges for 12 months or increase 
suspension by 12 months if checkwriter is currently under suspension.
    (3) Inform the unit commander (supervisor if checkwriter is a 
civilian) and checkwriter by letter that check-cashing privileges are 
suspended for 12 months from date of letter or increased by 12 months 
and that the checkwriter must attend remedial training. (See figure 3-
4.) The check cashing privileges may be restored when the suspension 
period is over or earlier if the checkwriter has met the conditions in 
Sec. 527.26(d) and the individual appointed by the installation 
commander to act on appeals of second offenses approves.
    (g) If the checkwriter commits a third offense (see Sec. 527.27), 
the ICCO will--
    (1) Add the checkwriter's name to the dishonored checklist if 
currently not on the list.
    (2) Suspend check-cashing privileges for 18 months or increase 
suspension by 18 months if checkwriter is currently under suspension.
    (3) Inform the commander (supervisor if checkwriter is a civilian) 
and checkwriter by letter that check-cashing privileges are suspended 
for 18 months from date of letter or increased by 18 months, that the 
checkwriter must attend remedial training, and that the ID card must be 
overstamped. (See figure

[[Page 221]]

3-5.) The check-cashing privileges may be restored when the suspension 
period is over or earlier if the checkwriter has met the conditions in 
Sec. 527.27(d) and the individual appointed by the installation 
commander to act on appeals of third offenses approves.
    (h) If the checkwriter commits a fourth offense (see Sec. 527.28), 
the ICCO will--
    (1) Add checkwriter's name to the dishonored checklist if currently 
not on the list.
    (2) Suspend check-cashing privileges indefinitely.
    (3) Inform the commander (supervisor if checkwriter is a civilian) 
and checkwriter by letter that check-cashing privileges have been 
suspended indefinitely, that the checkwriter must attend remedial 
training, and that the ID card must be overstamped. (See figure 3-6.) 
The installation commander may reinstate check-cashing privileges if the 
checkwriter has met the conditions in Sec. 527.28(d).
    (i) If the checkwriter continues to write dishonored checks after 
the fourth offense, the ICCO will follow guidance in paragraph (h) of 
this section.
    (j) The ICCO will remove an individual from the dishonored checklist 
at the end of the suspension period or at the request of the individual 
having appeal approval authority. The checkwriter must have redeemed the 
dishonored checks, paid the administrative/service charges, attended 
remedial training, and passed the installation checkbook maintenance 
test.
    (k) If proof of bank error or other excusable error is given, the 
ICCO will--
    (1) Clear checkwriter's name from central file of offenders.
    (2) Cancel any suspension imposed because of this error.
    (3) Inform checkwriter by letter of action taken.



Sec. 527.33  Identification card issuing facility.

    (a) When informed by the ICCO or the unit commander that an 
authorized user of the installation check-cashing facilities is 
suspended for issuing a dishonored check and is required to have their 
ID card overstamped, the ID card issuing facility will take action under 
AR 640-3, paragraph 4-10, to overstamp the offender's ID card.
    (b) When reissuing ID cards lost, stolen, etc., the dishonored 
checklist will be examined to determine if the individual applying for a 
new or replacement card is on it. The individual's unit or civilian's 
supervisor should be contacted to determine whether the ID card should 
be overstamped.



Sec. 527.34  Personnel of other Services.

    DA officials may not overstamp ID cards issued by other Services. DA 
officials may suspend check-cashing privileges of members of other 
Services, or their family members, by placing them on the dishonored 
checklist. Repeated abuse of check cashing privileges may result in 
barring from the installation persons not assigned thereto, except for 
needed medical services (See figs 3-7 and 3-8.) This barring may apply 
to family members and retirees of any Service.



Sec. 527.35  Appeals.

    (a) Any person whose check-cashing privileges are suspended may 
submit a written appeal for removal of the suspension. Active duty 
soldiers or their family members will send the appeal to their unit 
commander. Civilian employees will send their appeals to their first 
line supervisor. The appeal will include the following:
    (1) Date check-cashing privileges were suspended.
    (2) Check-cashing facility where check was cashed.
    (3) Date and where full payment, including administrative/service 
charges, was made.
    (4) Date remedial training was completed.
    (5) Grade received on installation checkbook maintenance test.
    (6) Reasons privileges should be restored.
    (b) ICCOs will not restore privileges if the checkwriter has not 
attended required training, has not passed the installation checkbook 
maintenance test, or has not paid in full all dishonored checks and 
administrative/service charges that did not result from bank or other 
excusable error.
    (c) If appeal was approved, the ICCO will--

[[Page 222]]

    (1) Remove checkwriter's name from dishonored checklist.
    (2) Inform checkwriter promptly of action taken.



Sec. 527.36  Disposal and transfer of records.

    ICCOs will--
    (a) Dispose of inactive files as required by AR 25-400-2 for file 
number 210-60a (Check-cashing Privileges).
    (b) Ensure that the ICCO is added to the installation out-processing 
checklist.
    (c) Send active dishonored check files directly to the ICCO of the 
gaining installation when offenders are reassigned before the end of 
their or their family member's suspension period.
    (d) Place incoming individuals on check cashing suspensions, if 
their existing suspensions have not expired. These individuals will 
remain on suspension until the suspension expires or an appeal is 
approved.



       Subpart D--Monthly Dishonored Check Report, RCS: CSCOA-105



Sec. 527.37  Purpose.

    The Monthly Dishonored Check Report, RCS: CSCOA-105, provides data 
needed for control and management purposes.



Sec. 527.38  Source of data.

    Data for preparation of the report will be obtained from records 
kept at each installation.



Sec. 527.39  Preparation.

    (a) The Monthly Dishonored Check Report will be prepared by the ICCO 
in the format at figure 4-1 for ICCOs with automated systems. For ICCOs 
with manual systems, the report need only contain the total number of 
dishonored checks and total dollar value. Figure 4-1 is preferred. 
Negative reports are required. Items, such as corrective actions taken, 
may improve the report as needed.
    (b) Statistics for transferred personnel will be dropped by the 
losing installation and picked up by the gaining installation for 
suspension purposes.



Sec. 527.40  Frequency, routing, and due dates.

    The ICCO will--
    (a) Prepare the report monthly.
    (b) Send the original report to their MACOM.
    (c) Send copy of the report to finance and accounting officer for 
evaluation (see Sec. 527.14(b)) and ultimate routing to installation 
commander.
    (d) Send copy of the report to the Office of the Director of Finance 
and Accounting, ATTN: SAFM-FAP-B, Indianapolis, IN 46249-1016, due no 
later than 15 calendar days (30 days for overseas) after the end of the 
reporting period.
    (e) Provide unit commander with unit dishonored check data.



Sec. 527.41  Relinquishing data.

    Data in the Monthly Dishonored Check Report may be provided to banks 
and credit unions operating on military installations.



                           Subpart E--Training



Sec. 527.42  Ethics and military competence.

    Ethics and military competence are closely related. Poor performance 
in one area contributes to poor performance in another. Therefore, a 
major element in personal financial management is ethics. 
Responsibility, integrity, and high standards of conduct will be 
stressed. This aspect of responsible financial management is considered 
a part of leader development and should be included in leadership 
instruction.



Sec. 527.43  Personal financial readiness/soldier money management (PFR/SMM).

    PFR/SMM training will be conducted throughout the Army training 
system as shown in Secs. 527.44 and 527.45.



Sec. 527.44  Initial entry training.

    Emphasis during initial entry training will be on prevention of 
abuse of check-cashing privileges. Recruits will be--
    (a) Given overview of basic pay entitlements, DA Form 3686 (JUMPS-
Army Leave and Earnings Statement), and maintenance of a checkbook.

[[Page 223]]

    (b) Made aware of counseling resources and procedures.
    (c) Instructed on their financial responsibilities to themselves, 
their family members, and their peers.
    (d) Made aware of the disciplinary and career consequences of the 
abuse of check-cashing privileges.



Sec. 527.45  Remedial training.

    Remedial training is mandatory for checkwriters committing an 
offense. Emphasis will be on checkbook management skills. This training 
is a prerequisite for removal from check-cashing suspensions. (See 
Secs. 527.25 through 527.28.) Remedial training will include budget 
counseling when budget problems exist. After completion of the remedial 
training the individual will be given a test on checkbook maintenance. 
The ICCO will require 70% or greater correct responses for passing the 
test. The individual must be able to demonstrate successful completion 
of the training and that he/she has the ability to properly maintain a 
checking account.

(Office Symbol)        (Date)

MEMORANDUM THRU (Installation Check Control Officer)
FOR (All Installation Check-cashing Facilities)
SUBJECT: Disclaimer of Responsibility
    1. Effective this (date) day of (month and year) I, (name), disclaim 
responsibility for any check issued by the person(s) listed below:

Name____________________________________________________________________
SSN_____________________________________________________________________
Address_________________________________________________________________
Relationship____________________________________________________________
    2. I have advised the individual(s) named above that I have 
disclaimed responsibility for check(s) presented by them to military 
check-cashing facilities. I have also advised the above named person(s) 
that their check-cashing privileges in these facilities may no longer be 
authorized.

        (Signature)
        (SSN)
        (Address)
        (Unit)

    Note. --This memorandum must be notarized by a licensed notary 
public prior to submission.

Figure 2-1. Sample of Notice of Disclaimer of Responsibility By Sponsor

(Office Symbol)        (Date)

MEMORANDUM THRU (unit commander of active duty check writer or sponsor, 
          State adjutant general for members of the Army National Guard, 
          or supervisor for civilians)
FOR (Check writer)
SUBJECT: Notification of Dishonored Check

    1. Reference AR 210-60, Personal Check-cashing Control and Abuse 
Prevention, dated (date of regulation).
    2. Your check(s) in the amount of ($), dated (date), was/were 
returned to (name of check-cashing facility) as dishonored.
    3. You have 10 calendar days from the date of this letter to make 
redemption and pay any administrative/service fee. Failure to make full 
restitution will result in a suspension of your check-cashing 
privileges. Restitution for the above check(s) must be made by cash, 
certified check, or money order to (where redemption should be made).
    4. If you can furnish proof of bank or other excusable error to the 
installation check control officer at (installation), your installation 
check-cashing privileges will be restored immediately. If proof is 
furnished, this would not be considered an offense, and no record of 
this transaction will be kept.

    Note. --MEMORANDUM THRU of address applies when two or more offenses 
occurred.

Figure 3-1. Sample of Notification of Dishonored Check
(Office Symbol)        (Date)

MEMORANDUM FOR (Check writer)
SUBJECT: Counseling Statement for Dishonored Check(s)
    1. A Notification of Dishonored Check, dated (date), has been 
received and is given to you in conjunction with this counseling 
statement. The Notification requires you to perform one of the 
following:
    a. Make restitution.
    b. Furnish proof of bank error or other extenuating circumstances.
    2. I have discussed the reason for the dishonored check with you, 
which is as follows:
    3. Several offices are available to provide budgeting or financial 
assistance. I am/am not scheduling you for this training.
    4. Consequences for abusing check-cashing privileges include the 
following:
    a.  Suspension of check-cashing privileges.
    b.  Letter of reprimand.
    c.  Appropriate comments in evaluation reports.
    d.  Administrative separation.
    e.  Bar to enlistment.
    f.  Denial of promotion.
    g.  Reduction in grade for inefficiency.
    5. These consequences may be avoided by performing the requirements 
in paragraph 1 above. Subsequent offenses may be dealt with more 
severely.

      (Signature of commander)

    Soldier's Comments:

      (Signature of check writer)


[[Page 224]]


Figure 3-2. Sample Counseling Statement for Dishonored Check

(Office Symbol)        (Date)

MEMORANDUM THRU (Unit commander of active duty check writer/sponsor, 
          State adjutant general for members of the Army National Guard, 
          or supervisor for civilians)
FOR (Check writer)
SUBJECT: Suspension of Check-Cashing Privileges--First Offense

    1. Reference AR 210-60, Personal Check-cashing Control and Abuse 
Prevention, (date of regulation).
    2. Your dishonored check(s) in the amount of (dollar amount), dated 
(date), and returned to (name of check-cashing facility) as dishonored 
was/were not redeemed within the grace period. Therefore, your 
installation check-cashing privileges are suspended for 6 months and you 
are required to attend remedial training on checkbook maintenance. The 
suspension period will end 6 months from the date of this letter, 
provided the check(s) has/have been redeemed and all administrative/
service charges have been paid, you have attended remedial training, and 
you have passed the installation checkbook maintenance test. Failure to 
make redemption will result in collection action being taken against 
your pay account. A record of this occurrence will be kept in the check 
control office. Future dishonored check instances may result in more 
severe restrictions and/or disciplinary action against you.
    3. You may appeal the suspension of your installation check-cashing 
privileges to your unit commander (if military or family member) or 
first line supervisor (if civilian). Your unit commander (if military or 
family member) or first line supervisor (if civilian) may approve 
restoring your check-cashing privileges prior to the end of 6 months. 
However, the check(s) must have been redeemed, all administrative/
service charges paid, remedial training completed, and you must have 
passed the installation checkbook maintenance test.

(Installation check control officer)

Figure 3-3. Sample of Suspension Notification--first offense

(Office Symbol)        (Date)

MEMORANDUM THRU (Unit commander of active duty check writer/sponsor, 
          State adjutant general for members of the Army National Guard, 
          or supervisor for civilians)
FOR (Check writer)
SUBJECT: Suspension of Check-Cashing Privileges--Second Offense
    1. Reference AR 210-60, Personal Check-cashing Control and Abuse 
Prevention, (date of regulation).
    2. Your dishonored check(s) in the amount of (dollar amount), dated 
(date), and returned to (name of check-cashing facility) as dishonored 
was/were not redeemed within the grace period. Therefore, your 
installation check-cashing privileges are suspended for 12 months and 
you are required to attend remedial training, since this is your second 
offense. The suspension period will end 12 months from the date of this 
letter, provided the check(s) has/have been redeemed and all 
administrative/service charges have been paid, you have attended 
remedial training, and you have passed the installation checkbook 
maintenance test. Failure to make redemption will result in collection 
action being taken against your pay account. A record of this occurrence 
will be kept in the check control office. Future dishonored check 
instances may result in more severe restrictions and/or disciplinary 
action.
    3. You may appeal the suspension of your installation check-cashing 
privileges to your unit commander (if military or family member) or 
first line supervisor (if civilian). Your unit commander (if military or 
family member) or first line supervisor (if civilian) may approve 
restoring your check-cashing privileges prior to the end of 12 months. 
However, the check(s) must have been redeemed, all administrative/
service charges paid, remedial training completed, and you must have 
passed the installation checkbook maintenance test.

(Installation check control officer)
    Note. --If the check writer is currently on the dishonored check 
list, change paragraph 2 to indicate that current suspension is 
increased by 12 months.

Figure 3-4. Sample of Suspension Notification--second offense
(Office Symbol)        (Date)

MEMORANDUM THRU (Unit commander of active duty check writer/sponsor, 
          State adjutant general for members of the Army National Guard, 
          or supervisor for civilians)
FOR (Check writer)
SUBJECT: Suspension of Check-Cashing Privileges--Third Offense
    1. Reference AR 210-60, Personal Check-cashing Control and Abuse 
Prevention, (date of regulation).
    2. Your dishonored check(s) in the amount of (dollar amount), dated 
(date), and returned to (name of check-cashing facility) as dishonored 
was/were not redeemed within the grace period. Therefore, your 
installation check-cashing privileges are suspended for 18 months, you 
must have your ID card overstamped, and you are required to attend 
remedial training, since this is your third offense. The suspension 
period will end 18 months from the date of this letter, provided the 
check(s) has/have been redeemed and all administrative/service charges 
have been

[[Page 225]]

paid, you have attended remedial training, and you have passed the 
installation checkbook maintenance test. Failure to make redemption will 
result in collection action being taken against your pay account. A 
record of this occurrence will be kept in the check control office. 
Future dishonored check instances may result in more severe restrictions 
and/or disciplinary action against you.
    3. You may appeal the suspension of your installation check-cashing 
privileges to your unit commander (if military or family member) or 
first line supervisor (if civilian). Your unit commander (if military or 
family member) or first line supervisor (if civilian) may approve 
restoring your check-cashing privileges prior to the end of 18 months. 
However, the check(s) must have been redeemed, all administrative/
service charges paid, remedial training completed, and you must have 
passed the installation checkbook maintenance test.

(Installation check control officer)

    Note. --If the check writer is currently on the dishonored check 
list, change paragraph 2 to indicate that current suspension is 
increased by 18 months.

Figure 3-5. Sample of Suspension Notification--third offense

(Office Symbol)        (Date)

MEMORANDUM THRU (Unit commander of active duty check writer/sponsor, 
          State adjutant general for members of the Army National Guard, 
          or supervisor for civilians)
FOR (Check writer)
SUBJECT: Suspension of Check-Cashing Privileges--Fourth Offense
    1. Reference AR 210-60, Personal Check-cashing Control and Abuse 
Prevention, (date of regulation).
    2. Your dishonored check(s) in the amount of (dollar amount), dated 
(date), and returned to (name of check-cashing facility) as dishonored 
was/were not redeemed within the grace period. Therefore, your 
installation check-cashing privileges are suspended indefinitely, and 
you are required to attend remedial training, and you must have your ID 
card overstamped since this is your fourth offense. You must report to 
the ID card issuing facility to receive an overstamped ID card. The 
suspension period will end only at the approval of the installation 
commander, provided the check(s) has/have been redeemed and all 
administrative/service charges have been paid, you have attended 
remedial training, and you have passed the installation checkbook 
maintenance test. Failure to make redemption will result in collection 
action being taken against your pay account. A record of this occurrence 
will be kept in the check control office. Future dishonored check 
instances may result in more severe restrictions and/or disciplinary 
action against you.
    3. You may appeal the suspension of your installation check-cashing 
privileges to your unit commander (if military or family member) or 
first line supervisor (if civilian). The installation commander may 
approve restoring your check-cashing privileges. However, the check(s) 
must have been redeemed, all administrative/service charges paid, 
remedial training completed, and you must have passed the installation 
checkbook maintenance test.

(Installation check control officer)

Figure 3-6. Sample of Suspension Notification--fourth offense

(Office Symbol)        (Date)

MEMORANDUM FOR (Check writer)
SUBJECT: Intent to Debar from United States Military Installation
    1. You are hereby notified of intent to bar you from entering or 
reentering the limits of (name of installation), except to enter and 
exit the installation by the most direct route for needed medical 
treatment at (name of hospital of clinic). This bar to the installation 
is because (reason for debarment). This bar to the installation will be 
removed (date or when certain actions are completed).
    2. Section 1382, title 18, United States Code, states: ``Whoever 
within the jurisdiction of the United States, goes upon any military, 
Naval, or Coast Guard Reservation, Post, Fort, Arsenal, Yard, Station or 
Installation, after having been removed therefrom or ordered not to 
reenter by any officer or person in command or charge thereof shall be 
fined not more than $500 or imprisoned not more than 6 months, or 
both.''
    3. After debarment, if you are found within the limits of (name of 
installation) without having received prior approval to enter the 
installation, except for the purpose of obtaining needed medical care, 
you will be detained by military authorities and turned over to Federal 
authorities for prosecution under the above law.
    4. Prior to final action barring you from entering or reentering the 
limits of (name of installation), you are hereby given an opportunity to 
present evidence on your behalf and to comply with the requirements set 
forth in paragraph 1 above. This information may be presented to (ICCO). 
If a reply is not received within (number of) days of the date you 
receive this letter, a letter of debarment will automatically be sent to 
you.

(Installation commander)

Figure 3-7. Sample Notice of Intent to Debar From Installation
(Office Symbol)        (Date)
MEMORANDUM FOR (Check writer)
SUBJECT: Debarment from United States Military Installation


[[Page 226]]


    1. You are hereby prohibited as of this date from entering or 
reentering the limits of (name of installation), except to enter and 
exist the installation by the most direct route for needed medical 
treatment at (name of hospital of clinic). This bar to the installation 
is because (reason for debarment). This bar to the installation will be 
removed (date or when certain actions are completed).
    2. Section 1382, title 18, United States Code, states: ``Whoever 
within the jurisdiction of the United States, goes upon any Military, 
Naval, or Coast Guard Reservation, Post, Fort, Arsenal, Yard, Station or 
Installation, after having been removed therefrom or ordered not to 
reenter by any officer or person in command or charge thereof shall be 
fined not more than $500 or imprisoned not more than 6 months, or 
both.''
    3. If you are hereafter found within the limits of (name of 
installation) without having received prior approval to enter the 
installation, except for the purpose of obtaining needed medical care, 
you will be detained by military authorities and turned over to Federal 
authorities for prosecution under the above law.
    4. If you wish to appeal this debarment, a written request for a 
hearing on the matter should be sent to (ICCO) within (number of) days 
of the date of this letter. You will be informed by letter of the date, 
time, and place of the hearing for your appeal.

(Installation commander)

CF:
PM
SJA

Figure 3-8. Sample Notice of Debarment From Installation

                                         Monthly Dishonored Check Report
----------------------------------------------------------------------------------------------------------------
                                               AAFES       Commissary      FAO        NAF       Other     Total
----------------------------------------------------------------------------------------------------------------
 1. E1-E4......................  A
                                 B
                                 C
 2. E5-E6......................  A
                                 B
                                 C
 3. E7-E9......................  A
                                 B
                                 C
 4. W01/05.....................  A
                                 B
                                 C
 5. 06/Above...................  A
                                 B
                                 C
 6. Total (Line 1-5)...........  A
                                 B
                                 C
 7. Other Services.............  A
                                 B
                                 C
 8. Retired Military...........  A
                                 B
                                 C
 9. NG/Res.....................  A
                                 B
                                 C
10. Family Member..............  A
                                 B
                                 C
11. All Other (DOD Civ)........  A
                                 B
                                 C
12. Total (Line 7-11)..........  A
                                 B
                                 C
13. Grand Total (Line 6+12)....  A
                                 B
                                 C
----------------------------------------------------------------------------------------------------------------
Row A=Number of dishonored checks by category for the month.
Row B=Total dollar value of dishonored checks by category for the month. (Dollar values will be rounded to the
  nearest dollar.)
Row C=Number of dishonored check writers by category for the month.
 
Figure 4-1. Sample format of Monthly Dishonored Check Report, RCS: CSCOA-105.


[[Page 227]]

                   Appendix A to Part 527--References

    *Army publications referenced in this document are available from 
the National Technical Information Service, U.S. Department of Commerce, 
5285 Port Royal Road, Springfield, VA 22161, Telephone: (703) 487-4684.

                                Section I

                          Required Publications

AR 30-19
    Army Commissary Store Operating Policies. (Cited in Sec. 527.1(b))
AR 37-103
    Finance and Accounting for Installations: Disbursing Operations. 
(Cited in Sec. 527.1(b))
AR 37-104-3
    Military Pay and Allowances Procedures: Joint Uniform Military Pay 
System (JUMPS-Army). (Cited in Sec. 527.29(c))
AR 37-104-10
    Military Pay and Allowances Procedures for Inactive Duty Training: 
Joint Uniform Military Pay System--Reserve Components (JUMPS-(RC)-Army). 
(Cited in Sec. 527.29(c))
AR 37-109
    General Accounting and Reporting for Finance and Accounting Offices. 
(Cited in Sec. 527.29(C))
AR 60-20/AFAR 147-14
    Army and Air Force Exchange Service (AAFES) Operating Policies. 
(Cited in Sec. 527.1(b))
AR 190-29
    Minor Offenses and Uniform Violation Notices Referred to U.S. 
District Courts. (Cited in Sec. 527.19(h))
AR 215-1
    Administration of Morale, Welfare, and Recreation Activities and 
Nonappropriated Fund Instrumentalities. (Cited in Sec. 527.1(b))
AR 215-2
    The Management and Operation of Morale, Welfare, and Recreation 
Activities and Nonappropriated Fund Instrumentalities. (Cited in 
Sec. 527.1(b)) Preparation, Coordination, and Approval of Department of 
the Army Publications. (Cited in Sec. 527.7(b))
AR 600-20
    Army Command Policy and Procedures. (Cited in Sec. 527.11(c))
AR 600-31
    Suspension of Favorable Personnel Actions for Military Personnel in 
National Security Cases and Other Investigations or Proceedings. (Cited 
in Sec. 527.30(i))
AR 600-37
    Unfavorable Information. (Cited in Sec. 527.30(i)) Identification 
Cards, Tags, and Badges. (Cited in Sec. 527.33(a))

                               Section II

                          Related Publications

    A related publication is merely a source of additional information. 
The user does not have to read it to understand this regulation.
    Department of Defense Military Pay and Allowances Entitlements 
Manual (DODPM). Exchange Service Manual 55-21.

                               Section III

                            Referenced Forms

DA Form 3686
    JUMPS-Army Leave and Earnings Statement
DD Form 2A (Act)
    Active Duty Military ID Card
DD Form 2A (Res)
    Armed Forces of the United States ID Card (Reserve).
DD Form 2A (Ret)
    United States Uniformed Services ID Card (Retired)
DD Form 139
    Pay Adjustment Authorization

                                Glossary

                                Section I

                              Abbreviations

AAFES--Army and Air Force Exchange Service
ACS--Army Community Service
AF--appropriated fund
ASA(FM)--Assistant Secretary of the Army (Financial Management)
CG--commanding general
DA--Department of the Army
DCSPER--Deputy Chief of Staff, Personnel
DOD--Department of Defense
DODPM--Department of Defense Military Pay and Allowances Manual
DODRPM--Department of Defense Retired Pay Manual
DPCA--Deputy for Personnel and Community Activities
HQDA--Headquarters, Department of the Army
ICCO--installation check control office(r)
ID--identification
MACOM--major Army command
NAF--nonappropriated fund
OASA(FM)--Office of the Assistant Secretary of the Army (Financial 
          Management)
PAC--Personnel Administration Center
PFR/SMM--personal financial readiness/soldier money management
POI--program of instruction
RCS--requirement control symbol
SSN--social security number
TDY--temporary duty
TRADOC--U.S. Army Training and Doctrine Command

[[Page 228]]

UCMJ--Uniform Code of Military Justice
USACFSC--U.S. Army Community and Family Support Center

                               Section II

                                  Terms

Agency relationship. Relationship that exists when an individual 
          authorizes a person (or persons) to act on the individual's 
          behalf
Check-cashing facility. Appropriated fund or non appropriated fund 
          activity that accepts or cashes checks for merchandise, 
          services, cash, or payment of debts to the Government
Dishonored check. Check returned unpaid by the financial institution on 
          which it was drawn due to insufficient funds, closed account, 
          no account, or other like cause
Central file of offenders. A file maintained by the installation check 
          control officer listing all persons that have written a 
          dishonored check. This file is not published for use by any of 
          the check-cashing facilities
Dishonored check list. Manual list or listing stored in an electronic 
          check verification system of persons whose check-cashing 
          privileges are suspended
Electronic check verification system. Automated system that identifies 
          persons whose check-cashing privileges have been denied; for 
          example, the AAFES' TRW system, or the commissary's National 
          Cash Register electronic point of sales system
Grace period. Time allowed (10 calendar days from date of notification 
          letter) in which redemption of a dishonored check must be made
Offense. An offense occurs when a check writer does not redeem a 
          dishonored check within the grace period. The dishonored check 
          was not the result of a bank or other excusable error
Habitual dishonored check writer. A soldier who writes dishonored checks 
          on a regular basis but redeems the check within the grace 
          period, thus never being placed on the dishonored check list
Overstamped ID card. DD Form 2A (Act) (Active Duty Military ID Card), DD 
          Form 2A (Res) (Armed Forces of the United States ID Card 
          (Reserve)), DD Form 2A (Ret) (United States Uniformed Services 
          ID Card (Retired)), or other form of identification for 
          Active, Reserve Components, retired or civilian personnel 
          stamped on the face to show check-cashing privileges are 
          revoked
Proof of bank or other excusable error. Written admission of error by a 
          financial institution or other responsible party clearing 
          check writer of fault
Related offense. Any group of dishonored checks which resulted from a 
          common error (for example, a subtraction error in the 
          checkbook). The check writer must prove to the ICCO that these 
          dishonored checks are related. If none of the checks are 
          redeemed, they will be called one offense
Two-party check. A written order dated and signed by the maker directing 
          the bank to pay a certain sum of money to the order of a 
          second party.

[[Page 229]]





                    SUBCHAPTER B--CLAIMS AND ACCOUNTS





PART 534--MILITARY COURT FEES--Table of Contents




Sec.
534.1  General.
534.2  Allowable expenses for reporters.
534.3  Allowable expenses for witnesses.
534.4  Other fees.

    Authority: Sec. 3012, 70A Stat. 157; 10 U.S.C. 3012.

    Cross Reference: General Accounting Office, see 4 CFR chapter I.

    Source: 26 FR 9989, Oct. 25, 1961, unless otherwise noted.



Sec. 534.1  General.

    (a) Applicability. This part applies to court reporters and 
interpreters appointed under the Uniform Code of Military Justice, 
Article 28 (10 U.S.C. 828), and witnesses both in Government employ and 
those not in Government employ when subpoenaed to appear before a court.
    (b) Use of term ``court''. The term ``court'' as used in this part 
will be construed to include court-martial, court of inquiry, military 
commission, or retiring board. ``Military commission'' includes any 
United States tribunal, by whatever name described, convened in the 
exercise of military government, martial law, or the laws of war.



Sec. 534.2  Allowable expenses for reporters.

    (a) General. Reporters appointed under the Uniform Code of Military 
Justice, Article 28, are entitled to payment for their services in such 
capacity at the rates specified in paragraphs (b) through (i) of this 
section, or at such lower rates as may be stated in the appointing 
instrument.
    (b) Per diem pay. A reporter is entitled to a per diem payment of 
not to exceed $5 for each day or fraction thereof in attendance at 
court. Only one such payment is authorized for any 1 day even if the 
reporter attends two or more courts. For the purpose of this payment, 
the day ends at midnight and any fraction will be considered a whole 
day.
    (c) Hourly pay. A reporter is entitled to an hourly payment of not 
to exceed 50 cents for each hour, or fractional part equal to or greater 
than one-half hour, actually spent in court during the trial or hearing. 
A fractional part of an hour, less than one-half hour, will be 
disregarded, except that if the total time in attendance in one day or 
at one court in one day is less than 1 hour, such time will be 
considered as 1 hour. Time will be computed separately for each day if 
only one court is attended in such day. If more than one court is 
attended in 1 day, time in attendance at each court will be computed 
separately. The hourly pay is in addition to the per diem prescribed in 
paragraph (b) of this section.
    (d) Piece-work pay--(1) Rates. In addition to per diem and hourly 
pay prescribed in paragraphs (b) and (c) of this section, a reporter 
will be paid on a piece-work basis for transcribing notes and copy work 
based on the following rates:
    (i) Transcribing notes and making that portion of the original 
record which is required to be typewritten--25 cents for each 100 words.
    (ii) Each carbon copy of the record when authorized by the convening 
authority--10 cents for each 100 words.
    (iii) Copying papers material to the inquiry--15 cents for each 100 
words.
    (iv) Each carbon copy of the papers referred to in paragraph 
(d)(1)(iii) of this section when ordered by the court for its use--2 
cents for each 100 words.
    (2) Counting number of words. The certifying officer may determine 
the total number of words by counting the words on a sufficient number 
of pages to arrive at a fair average of words per page and multiplying 
such average by the total number of pages. Abbreviations ``Q'' and ``A'' 
for ``Questions'' and ``Answer'' and all dates such as ``25th'' and 
``1957'' will each be counted as one word. Punctuation marks will not be 
counted as words.
    (e) Mileage. A reporter is entitled to 8 cents a mile for travel 
from his home or usual place of employment to the court and for his 
return journey, computed on the basis of the Rand McNally

[[Page 230]]

Standard Highway Mileage Guide. Mileage is not authorized for return 
trips each night unless the sessions of the court are held on 
nonconsecutive days. The fact that a reporter may serve two or more 
courts in the same day does not warrant a duplication of his mileage 
allowance.
    (f) Allowance in lieu of subsistence--(1) General. When the official 
of the court having control in such matters keeps the reporter at his 
own expense away from his usual place of employment for 24 hours or more 
on public business referred to the court, a per diem allowance of not to 
exceed $4 in lieu of subsistence will be paid to the reporter for 
himself. A like allowance when ordered by the court will be paid to the 
reporter for each necessary assistant. The fact that a reporter returns 
each night to his home does not preclude the view that he is kept away 
from his usual place of employment for 24 hours. Service as reporter 
before two or more courts in the same day does not warrant duplication 
of the per diem allowance in lieu of subsistence.
    (2) Computation. The time for which the per diem allowance for 
expenses is to be paid will be computed in the manner prescribed in 
Sec. 534.3(b)(3) for a civilian witness not in Government employ.
    (g) Allowance for constructive attendance. A reporter duly employed 
but who after arrival at court performs no service because of 
adjournment is entitled to mileage; to a day's pay as prescribed in 
paragraph (c) of this section; and also to the per diem allowance 
prescribed in paragraph (f) of this section if kept away from his usual 
place of employment for 24 hours.
    (h) Detail of enlisted members. Enlisted members may be detailed to 
serve as stenographic reporters for military courts, boards, and 
commissions, but will receive no extra pay for such service.
    (i) Persons receiving pay from Government. Compensation for clerical 
duties performed for a court will not be paid to a person who is in the 
pay of the Government, except retired military members to the extent 
permitted under the dual compensation laws.



Sec. 534.3  Allowable expenses for witnesses.

    (a) Military members--(1) On active duty. Members in the military 
service, on active duty, when required to appear as witnesses before 
courts will receive the appropriate travel and transportation allowances 
prescribed in chapter 4, Joint Travel Regulations.
    (2) Retired members. Retired military members, not on active duty, 
when called as witnesses (other than expert witnesses), are entitled for 
their services as such to the mileage and other fees prescribed in 
paragraph (b)(3) of this section, for civilian witnesses not in 
Government employ.
    (b) Civilians--(1) General. (i) Persons not subject to military law 
when called as witnesses are entitled to the fees and mileage allowed to 
wintesses attending courts of the United States.

(Article 47, Uniform Code of Military Justice (10 U.S.C. 847; 1 Comp. 
Gen. 347))

    (ii) When the court is sitting in a foreign country, the oversea 
commander within whose command the court is convened will fix fees and 
allowances to be paid to witnesses, not in excess of maximum rates 
permitted to witnesses attending the courts of the United States or the 
courts of the foreign country, whichever rates may be higher.
    (2) In Government employ. Any officer or employee of the United 
States or any agency thereof, summoned as a witness on behalf of the 
United States, shall be paid his necessary expenses incident to travel 
by common carrier, or, if travel is made by privately owned automobile, 
mileage at a rate not to exceed 10 cents per mile, together with a per 
diem allowance not to exceed the rate of $12 a day.


(62 Stat. 950, 63 Stat. 103, 704, 69 Stat. 394; 28 U.S.C. 1823(a))

    (3) Not in Government employ--(i) Excluding Alaska and Canal Zone. A 
witness attending in any court of the United States or before a United 
States commissioner or person taking his deposition pursuant to any 
order of the court of the United States, will receive $4 for each day's 
attendance and for the time necessarily occupied in going to and 
returning from the same, and 8

[[Page 231]]

cents per mile for going from and returning to his place of residence. 
Witnesses who are not salaried employees of the Government and who are 
not in custody and who attend at point so far removed from their 
respective residences as to prohibit return thereto from day to day will 
be entitled to an additional allowance of $8 per day for expenses of 
subsistence including the time necessarily occupied in going to and 
returning from the place of attendance. In lieu of the mileage allowance 
provided for herein, witnesses who are required to travel between the 
Territories, possessions, or to and from the continental United States, 
will be entitled to the actual expenses of travel at the lowest first-
class rate available at the time of reservation for passage, by means of 
transportation employed. When a witness is detained in prison for want 
of security for his appearance, he will be entitled, in addition to his 
subsistence, to a compensation of $1 a day.
    (ii) In Alaska and Canal Zone. (a) In Alaska such witnesses are 
entitled to the witness fees and mileage prescribed for witnesses before 
the United States district court in the judicial division in which the 
trial or hearing is held. Fees vary in the different judicial divisions.
    (b) In the Canal Zone such witnesses are entitled to the witness 
fees and mileage as are prescribed for witnesses before the United 
States court in the Canal Zone.
    (c) Responsible officers in Alaska and in the Panama Canal Zone will 
keep informed as to the fees payable in United States courts in those 
places.
    (c) Mileage--(1) General. A civilian witness not in Government 
employ, when furnished transportation in kind by the Government, is 
entitled to 8 cents per mile less the cost of transportation furnished. 
A civilian witness residing within the jurisdiction of the court, who is 
subpoenaed and attends the trial in obedience to such subpoena, is 
entitled to mileage between his residence and the place of trial, 
regardless of whether both are in the same city.
    (2) Computation. Mileage at the rate of 8 cents per mile will be 
computed on the basis of the Rand McNally Standard Highway Mileage Guide 
regardless of the mode of transportation used.
    (d) Subsistence per diem allowance--(1) When payable. The 
subsistence per diem allowance is payable only when the place of trial 
is so far removed from the place of residence as to prohibit return of 
the witness thereto from day to day and such fact is properly certified. 
(See 6 Comp. Gen. 835.)
    (2) Computation. In computing the subsistence per diem allowance 
prescribed in paragraph (b)(3)(i) of this section, the calendar day 
beginning at midnight is the unit, and the subsistence per diem 
allowance accrues from the time it is necessary for the witness to leave 
his home in order to arrive at the place of trial at the appointed time 
until the time he could arrive at his home by first available 
transportation after his discharge from attendance, any fractional part 
of a day under such transportation to be regarded as a day for per diem 
purposes. (See 5 Comp. Gen. 1028, as modified by 6 Comp. Gen. 480 and 6 
id. 835.)
    (e) Attendance fees--(1) Attendance at more than one case on same 
day. A person attending as a witness in more than one case on the same 
day under a general subpoena to appear and testify is entitled to only 
one per diem for each day's attendance. If separate subpoenas are issued 
in each case, the defendants being different, the witness is entitled to 
separate per diem for actual attendance in each case. The duplication of 
fees on account of attendance as witness in more than one case on the 
same day does not apply to the 8-cent mileage allowance and does not 
apply to the per diem on $8 in lieu of subsistence.
    (2) Attendance before officer taking deposition. A witness who is 
required to appear before an officer (civil or military) empowered to 
take depositions and there to give testimony under oath to be used 
before a court is entitled for such service and for the necessary travel 
incident thereto, including return travel, to the allowances prescribed 
in paragraphs (a) and (b) of this section, the same as though his 
appearance were before a court. (See 8 Comp. Gen. 18.)
    (3) Attendance before military courts or boards of limited 
jurisdiction. A subpoena

[[Page 232]]

or other compulsory process addressed to a civilian by a military court 
or board which has not express statutory authority to issue such 
process, such as a board of officers convened to investigate and report 
upon the facts connected with the death of an enlisted member while on 
temporary duty, is void. Civilian witnesses who appear before such a 
board in response to such void process must be regarded as having done 
so voluntarily and are not entitled to witness fees, in the absence of a 
specific appropriation therefor. (See 8 Comp. Gen. 64.)
    (4) Computation. The provisions of paragraph (d)(2) of this section 
are equally applicable for computation of the attendance fee.
    (f) Expert--(1) Fees paid. An expert witness employed in accordance 
with Manual for Courts-Martial, 1951, paragraph 116, may be paid 
compensation at the rate prescribed in advance by the official empowered 
to authorize his employment. (See 11 Comp. Gen. 504.) In the absence of 
such advance authorization no fees, other than ordinary witness fees, 
may be paid for the employment of an individual as an expert witness. 
(See paragraph 116, Manual for Courts-Martial (Executive Order 10214).)
    (2) Limitations. (i) An expert while employed on behalf of the 
Government is an officer or employee of the United States within the 
laws affecting traveling and subsistence expenses of officers and 
employees of the Government generally. His traveling allowances are 
therefore subject to the limitations prescribed in the Travel Expense 
Act of 1949 (63 Stat. 166; 5 U.S.C. 835-842) and the Standardized 
Government Travel Regulations. (See 6 Comp. Gen. 712.)
    (ii) There is no authority for payment by the Government of fees to 
an expert, who was employed by an officer or employee of the Government 
to aid in the performance of his duties, other than an expert witness 
who actually appears as such (paragraph (b)(2) of this section).
    (iii) A retired officer, not on active duty, employed as an expert 
witness is not entitled to any compensation in addition to his retired 
pay for such service. The traveling allowances of such a retired 
officer, so employed, are subject to the limitations prescribed in the 
Travel Expense Act of 1949 and the Standardized Government Travel 
Regulations. (See 6 Comp. Gen 712.)
    (g) Witness not subpoenaed--(1) Compelled to testify. A person who, 
although not subpoenaed, is present at trial or hearing before a court 
or other body authorized to compel the attendance of witnesses by 
compulsory process, and who is compelled or required to testify at such 
hearing, is entitled to fees and mileage allowances payable to 
witnesses.
    (2) Voluntarily testifies. A person who was neither subpoenaed nor 
requested to appear as a witness, but who voluntarily requested and was 
granted permission to testify to certain matters considered pertinent to 
an inquiry being conducted, is not entitled to mileage and witness fees. 
(See 9 Comp. Gen. 255.)



Sec. 534.4  Other fees.

    (a) Service of subpoena. Fees or compensation for the service of a 
subpoena by a civilian are not prescribed by the laws of the United 
States. Fees and mileage allowed by the local law for similar services 
may be paid. If no specific fee or mileage is fixed by local law, 
reasonable allowances may be paid. (See Dig. Op. JAG, 1912-40, sec. 
379.)
    (b) Taking of depositions--(1) Fees of civil officers. A civil 
officer before whom a deposition is taken may be paid the fees allowed 
by law of the place where the deposition is taken (or a reasonable fee 
if no specific fee is fixed by local laws), but no mileage or other 
allowance for travel of the civil officer to the witness is provided for 
or authorized by law. (See 2 Comp. Gen. 65.)
    (2) Travel of witnesses. If the witness and the civil officer before 
whom the deposition is to be taken do not reside at the same place, the 
witness should be required to perform the necessary travel, and he is 
entitled to mileage or other travel allowance therefor as prescribed in 
Sec. 534.3(e)(2).
    (3) Oaths in matters of military administration. Where the service 
of one of the officers designated in the Uniform Code of Military 
Justice, Article 136, is not available, fees may be paid to civil 
officers for administering oaths in matters

[[Page 233]]

relating to military administration, subject to the conditions indicated 
in paragraph (b)(1) of this section.
    (c) Interpreters. An interpreter appointed under the Uniform Code of 
Military Justice, Article 28 (10 U.S.C. 828), is entitled for his 
services as such to the allowances prescribed for witnesses 
(Sec. 534.3).
    (d) Furnishing copies of official records or documents. The fees 
provided by the local laws may be paid to the proper officials for 
furnishing such certified copies of public records or documents and 
expenses in connection with the procurement of photostatic copies, 
photographs, and negatives as are required by the court.
    (e) Attendance upon civil courts--(1) Cases involving performance of 
official duties. A military member on active duty or a civilian in 
Government employ appearing on behalf of the United States in cases 
arising out of the performance of their official duties is entitled to 
transportation and per diem as prescribed in Sec. 534.3(a)(1) and 
(b)(1). Payment may be made by Department of the Army finance and 
accounting officers and will be charged to Department of the Army 
appropriations available for travel expenses of military personnel and 
civilian employees.
    (2) Cases involving other than performance of official duties. A 
military member on active duty or a civilian in Government employ 
appearing on behalf of the United States in cases involving other than 
the performance of their official duties is entitled to transportation 
or transportation allowances and per diem as may be prescribed by The 
Attorney General. The subpoena or letter requesting attendance will 
specify the rates payable and will cite the appropriation chargeable. 
Payment may be made by a Department of the Army finance and accounting 
officer and reimbursement obtained from the Department of Justice.
    (3) Cases in which civilians not in Government employ are called as 
witnesses. Payments to civilians out of Government employ will not be 
made by Department of the Army finance and accounting officers. Such 
payments will be made by the Department of Justice.



PART 536--CLAIMS AGAINST THE UNITED STATES--Table of Contents




                      Subpart A--General Provisions

Sec.
536.1  Purpose and scope.
536.2  Information and assistance.
536.3  Definitions and explanations.
536.4  Treaties and international agreements.
536.5  Claims.
536.6  Determination of liability.
536.7  Incident to service exclusionary rule.
536.8  Use of appraisers and independent medical examinations.
536.9  Effect on award of other payments to claimant.
536.10  Settlement agreement.
536.11  Appeals and notification to claimant as to denial of claims.
536.12  Effect of payment.
536.13  Advance payments.

   Subpart B--Claims Arising From Activities of Military or Civilian 
              Personnel or Incident to Noncombat Activities

536.20  Statutory authority.
536.21  Definitions.
536.22  Scope.
536.23  Claims payable.
536.24  Claims not payable.
536.25  Claims also cognizable under other statutes.
536.26  Presentation of claims.
536.27  Procedures.
536.28  Law applicable.
536.29  Compensation for property damage, personal injury, or death.
536.30  Structured settlements.
536.31  Claims over $100,000.
536.32  Settlement procedures.
536.33  Attorney fees.
536.34  Payment of costs, settlements, and judgments related to certain 
          medical and legal malpractice claims.
536.40  Claims under Article 139, Uniform Code of Military Justice.
536.50  Claims based on negligence of military personnel or civilian 
          employees under the Federal Tort Claims Act.
536.60  Maritime claims.

 Subpart C--Claims Arising From Activities of National Guard Personnel 
                    While Engaged in Duty or Training

536.70  Statutory authority.
536.71  Definitions.
536.72  Scope.
536.73  Claims payable.
536.74  Claims not payable.
536.75  Notification of incident.
536.76  Claims in which there is a State source of recovery.

[[Page 234]]

536.77  Claims against the ARNG tortfeasor individually.
536.78  When claim must be presented.
536.79  Where claim must be presented.
536.80  Procedures.
536.81  Settlement agreement.

   Subpart D--Claims Incident to Use of Government Vehicles and Other 
      Property of the United States Not Cognizable Under Other Law

536.90  Statutory authority.
536.91  Scope.
536.92  Claims payable.
536.93  Claims not payable.
536.94  When claim must be presented.
536.95  Procedures.
536.96  Settlement agreement.
536.97  Reconsideration.

    Authority: 10 U.S.C. 939, 2733, 2734, 2734a, 2736, 2737, 3012, 4801 
through 4804, and 4806; 28 U.S.C. 1346(b), 2401(b), 2402, 2671 through 
2680; and 32 U.S.C. 715.

    Source: 54 FR 43892, Oct. 27, 1989, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 536.1  Purpose and scope.

    (a) Purpose. Part 536 prescribes policies and procedures to be 
followed in the filing, investigation, processing and administrative 
settlement of Department of Army (DA) generated noncontractual claims. 
Sections 536.1 through 536.13 contain general instructions and guidance 
for the investigation and processing of claims and apply to all claims 
unless other laws or regulations specify other procedures. They are 
intended to ensure that incidents that may result in claims are promptly 
and efficiently investigated under supervision adequate to ensure a 
sound basis for official action and that all claims resulting from such 
incidents are expeditiously settled. The Secretary of the Army has 
delegated authority to The Judge Advocate General (TJAG) to assign areas 
of responsibility and designate functional responsibility for claims 
purposes. TJAG has delegated authority to the Commander, U.S. Army 
Claims Service (USARCS) to carry out these responsibilities. USARCS is 
the agency through which the Secretary of the Army and TJAG discharge 
their responsibilities for claims administration. The proper mailing 
address of USARCS is Commander, U.S. Army Claims Service, Office of The 
Judge Advocate General, Fort George G. Meade, Maryland 20755-5360.
    (b) Scope--(1) Applicability. (i) Sections 536.20 through 536.35 
apply in the settlement of claims under the Military Claims Act (MCA) 
(10 U.S.C. 2733) for personal injury, death or property damage that was 
either caused by members or employees of the DA acting within the scope 
of their employment or otherwise incident to noncombat activities of the 
DA.
    (ii) Section 536.40 sets forth the procedures to be followed and the 
standards to be applied in the processing of claims cognizable under 
Article 139, Uniform Code of Military Justice (UCMJ) (10 U.S.C. 939) for 
property willfully damaged or wrongfully taken or withheld by members of 
the DA.
    (iii) Section 536.50 governs the administrative settlement of claims 
under the Federal Tort Claims Act (FTCA) (28 U.S.C. 1346(b), 2671-2680) 
for personal injury, death or property damage caused by the negligent 
act or omissions of members or employees of the DA while acting within 
the scope of their employment.
    (iv) Section 536.60 provides the procedures to be followed in the 
settlement of claims under the Army Maritime Claims Settlement Act (10 
U.S.C. 4801-4804, 4806) for damage caused by a vessel of or in the 
service of the Army.
    (v) Sections 536.70 through 536.81 provide instructions for 
settlement of claims under the National Guard Claims Act (NGCA) (32 
U.S.C. 715) for personal injury, death or property damage that was 
either caused by a member or employee of the Army National Guard (ARNG) 
while in training or duty under Federal law, and acting within the scope 
of their employment; or otherwise incident to noncombat activities of 
the ARNG not in active Federal service.
    (vi) Sections 536.90 through 536.97 provide instructions for 
settlement of claims under 10 U.S.C. 2737 for personal injury, death or 
property damage (not cognizable under any other law) incident to the use 
of Government property by members or employees of the DA.

[[Page 235]]

    (2) Nonappropriated fund activities. Claims arising from acts or 
omissions of employees of nonappropriated fund activities within the 
United States, its Territories, and possessions, are processed in the 
manner prescribed by applicable regulations. In oversea areas, such 
claims will be processed in accordance with treaties or agreements 
between the United States and foreign countries with respect to the 
settlement of claims arising from acts or omissions of military and 
civilian personnel of the United States in such countries, or in 
accordance with applicable regulations as appropriate.
    (3) Nonapplicability. Sections 536.1 through 536.13 do not apply to:
    (i) Contractual claims which are under the provisions of Public Law 
85-804, 28 August 1958 (72 Stat. 972) and AR 37-103, AR 37-103 and other 
Army Regulations referenced herein are available thru: National 
Technical Information Services, U.S. Department of Commerce, 5285 Port 
Royal Road, Springfield, VA 22161, or other regulations including 
acquisition regulations.
    (ii) Maritime claims (Sec. 536.60).



Sec. 536.2  Information and assistance.

    (a) Government personnel may not represent any claimant or receive 
any payment or gratuity for services rendered. They may not accept any 
share or interest in a claim or assist in its presentation, under 
penalty of Federal criminal law (18 U.S.C. 203, 205). They are 
prohibited from disclosing information which may be the basis of a 
claim, or any evidence of record in any claims matter, except as 
prescribed in Secs. 518.1 through 518.4 of this chapter or other 
pertinent regulations. A person lacking authority to approve or 
disapprove a claim may not advise a claimant or his representative as to 
the disposition recommended.
    (b) The prohibitions against furnishing information and assistance 
do not apply to the performance of official duty. Any person who 
indicates a desire to file a claim against the United States will be 
instructed concerning the procedure to follow. He will be furnished 
claim forms, and, when necessary, will be assisted in completing the 
forms and assembling evidence. He will not be assisted in determining 
what amount to claim. In the vicinity of a field exercise, maneuver, or 
disaster, information may be disseminated concerning the right to 
present claims, the procedure to be followed, and the names and 
locations of claims officers, and engineer repair teams. When the 
government of a foreign country in which the U.S. Armed Forces are 
stationed has assumed responsibility for the settlement of certain 
claims against the United States, officials of that country will be 
furnished pertinent information and evidence so far as security 
considerations permit.



Sec. 536.3  Definitions and explanations.

    The following terms as used in Secs. 536.1 through 536.13 and the 
matters referred to in Sec. 536.1(b) will have the meanings here 
indicated:
    (a) Affirmative Claims. The government's statutory right to recover 
money, property, or repayment in kind incurred as a result of property 
loss, damage, or destruction by any individual, partnership, association 
or other legal entity, foreign or domestic, except an instrumentality of 
the United States. Also, the Government's statutory right to recover the 
reasonable medical costs expended for hospital, medical, surgical, or 
dental care and treatment (including prostheses and medical appliances) 
incurred under circumstances creating tort liability upon some third 
person.
    (b) Civilian Employees. Civilian employee means a person whose 
activities the Government has the right to direct and control, not only 
as to the result to be accomplished but also as to the means used; this 
includes, but is not limited to, full-time Federal civilian officers and 
employees. The term should be distinguished from the term ``independent 
contractor'' for whose actions the Government generally is not liable. 
The determination of who is a civilian employee is a Federal question 
determined under Federal law and not under local law.
    (c) Claim. A demand for payment of a specified sum of money (other 
than the ordinary obligations incurred for services, supplies or 
equipment) and, unless otherwise specified in this regulation, in 
writing and signed by the claimant

[[Page 236]]

or a properly designated representative.
    (d) Claim file. The claim, report of the claims officer or other 
report of investigation, supporting documentation, and pertinent 
correspondence.
    (e) Claim approval authority. Except for claims under 10 U.S.C. 939, 
31 U.S.C. 3721, and treaties or international agreements such as the 
North Atlantic Treaty Organization (NATO), Status of Forces Agreement 
(SOFA), and subject to any limitations found in specific provisions of 
these regulations, the authority to approve and pay a claim in the 
amount presented or in a lesser amount upon the execution of a 
settlement agreement by the claimant. A person with approval authority 
may not disapprove a claim in its entirety nor make a final offer, 
subject to any limitations found in specific provisions of this 
regulation.
    (f) Claim settlement authority. The authority to approve a claim, to 
deny a claim in its entirety, or to make a final offer subject to any 
limitations found in specific provisions of this regulation.
    (g) Claims attorney. DA or DOD civilian attorney assigned to a judge 
advocate or legal office, who has been designated by the Commander, 
USARCS.
    (h) Claims judge advocate. An officer of the Judge Advocate 
General's Corps designated by a command or staff judge advocate (SJA) to 
be in immediate charge of claims activities of the command.
    (i) Claims Officer. A commissioned officer, warrant officer, or 
qualified civilian employee detailed by the commander of an installation 
or unit who is trained or experienced in the investigation of claims.
    (j) Claimant. An individual, partnership, association, corporation, 
country, state, territory, or other political subdivision of such 
country; does not include the U.S. Government or any of its 
instrumentalities, except as prescribed by statute. Indian tribes are 
not proper party claimants but individual Indians can be claimants.
    (k) Combat activities. Activities resulting directly or indirectly 
from action by the enemy, or by U.S. Armed Forces engaged in, or in 
immediate preparation for, impending armed conflict.
    (l) Disaster. A sudden and extraordinary calamity occasioned by 
activities of the Army, other than combat, resulting in extensive 
civilian property damage or personal injuries and creating a large 
number of potential claims.
    (m) Federal agency. A federal agency includes the executive 
departments and independent establishments of the United States and 
corporations acting as instrumentalities or agencies of the United 
States but does not include any contractor with the United States.
    (n) Final offer. An offer of payment by a settlement authority in 
full and final settlement of a claim which, if not accepted, constitutes 
a final action for purposes of filing suit under Sec. 536.50 or filing 
an appeal under Secs. 536.20 through 536.35 and 536.70 through 536.81, 
provided such offer is made in writing and meets the other requirements 
of a final action as set forth in this regulation.
    (o) Government vehicle. A vehicle owned or on loan to any agency of 
the Government of the United States or privately owned, and operated by 
members or civilian employees of the DA in the scope of their office or 
employment with the Government of the United States including vehicles 
being operated on joint operations of the U.S. Armed Forces.
    (p) Medical claims judge advocate. A judge advocate (JA) assigned to 
an Army Medical Center, under an agreement between TJAG and The Surgeon 
General, to perform the primary duty of investigating and processing 
medical malpractice claims.
    (q) Medical claims investigator. A senior legal specialist or 
qualified civilian assigned to assist a medical claims JA on a full-time 
basis. A medical claims investigator is authorized to administer oaths 
under the provisions of Article 136(b)(6), UCMJ, 10 U.S.C. 936(b)(6) 
when performing investigative duties.
    (r) Medical malpractice claim. A claim arising out of substandard or 
inadequate care of an Army patient.
    (s) Military personnel. Military personnel means members of the DA 
on active duty for training, or inactive duty training as defined in AR 
310-25 and 10 U.S.C. 101(22), 101(23), and 101(30).

[[Page 237]]

This includes members of the District of Columbia ARNG while performing 
active duty or training under 32 U.S.C. 316, 502, 503, 504 or 505.
    (t) Noncombat activities. A noncombat activity arises from 
authorized activities essentially military in nature, having little 
parallel in civilian pursuits and which historically have been 
considered as furnishing a proper basis for payment of claims, such as 
practice firing of missiles and weapons, training and field exercises, 
and maneuvers, including, in connection therewith, the operation of 
aircraft and vehicles, and use and occupancy of real estate, and 
movement of combat or other vehicles designed especially for military 
use. Activities incident to combat, whether in time of war or not, and 
use of military personnel and civilian employees in connection with 
civil disturbances, are excluded.
    (u) Personal property. Property consisting solely of corporeal 
personal property, that is, tangible things. Personal property does not 
consist of the loss or forfeiture of a security deposit or a contingent 
financial benefit.



Sec. 536.4  Treaties and international agreements.

    (a) The governments of some foreign countries have by treaty or 
agreement waived or assumed, or may hereafter waive or assume, certain 
claims against the United States. In such instances claims will not be 
settled under laws or regulations of the United States.
    (b) The prohibition stated in paragraph (a) of this section is not 
applicable to claims within the purview of Article VIII of the Agreement 
Regarding the Status of Forces of Parties to the North Atlantic Treaty 
or similar type agreements which normally will be investigated and 
settled as therein provided.



Sec. 536.5  Claims.

    (a) Who may present. (1) A claim may be presented by the owner of 
the property, or in his name by a duly authorized agent or legal 
representative. As used in this regulation an owner includes the 
following:
    (i) For real property. The mortgagor, or the mortgagee, if he or she 
can maintain a cause of action in the local courts involving a tort to 
that specific property. When notice of divided interests in real 
property is received, the claim should, if feasible, be treated as a 
single claim or a release from all interests must be obtained.
    (ii) For personal property. A bailee, leasee, mortgagee, and 
conditional vendor, or others having title for purposes of security 
only, are not proper claimants unless specifically authorized by the 
statute and implementing regulations in question. If more than one party 
has a real interest in the property, all must join in the claim or a 
release from all interests must be obtained.
    (2) A claim for personal injury may be presented by the injured 
person or duly authorized agent or legal representative.
    (3) A claim based on death may be presented by the executor or 
administrator of the deceased's estate, or by any person determined to 
be legally or beneficially entitled. The amount allowed will, to the 
extent practicable, be apportioned among the beneficiaries in accordance 
with the law applicable to the incident.
    (4) A claim for medical, hospital, or burial expenses may be 
presented by any person who by reason of family relationship has in fact 
incurred the expenses for which the claim is made. However, for claims 
cognizable under the provisions of the FTCA, see Sec. 536.50, and for 
claims cognizable under the provisions of the Nonscope of Employment 
Claims Act, see Secs. 536.90 through 536.97.
    (5) A claim presented by an agent or legal representative will be 
made in the name of the claimant and signed by the agent or legal 
representative showing the title or capacity. Written evidence of the 
authority of such person to act is mandatory except when controlling law 
does not require such evidence.
    (6) A claim normally will include all damages that accrue by reason 
of the incident. Where the same claimant has a claim for damage to or 
loss of property and a claim for personal injury or a claim based on 
death arising out of

[[Page 238]]

the same incident, each of the foregoing or any combination of them 
ordinarily represent only an integral part or parts of a single claim or 
cause of action. Under Secs. 536.20 through 536.35 and the Foreign 
Claims Act (FCA) (10 U.S.C. 2734), a single claimant is entitled to be 
compensated only one time for all damages or injuries arising out of an 
incident.
    (b) Subrogation. A claim may be presented by a subrogee in his own 
name if authorized by the law of the place where the incident giving 
rise to the claim occurred, provided subrogation is not barred by the 
regulation applicable to the type of claim involved.
    (1) The claims of the subrogor (insured) and subrogee (insurer) for 
damages arising out of the same incident constitute separate claims, and 
it is permissible for the aggregate of such claims to exceed the 
monetary jurisdiction of the approving or settlement authority.
    (2) A subrogor and a subrogee may file a claim jointly or 
individually. A fully subrogated claim will be paid only to the 
subrogee. Whether a claim is fully subrogated is a matter to be 
determined by local law. Some jurisdictions permit the property owner to 
file for property damage even though the owner has been compensated for 
the repairs by an insurer. In such instances a release should be 
obtained from both parties in interest or be released by both of them. 
The approved payment in a joint claim will be by joint check which will 
be sent to the subrogee unless both parties specify otherwise. If 
separate claims are filed, payment will be by check issued to each 
claimant to the extent of his undisputed interest.
    (3) Where a claimant has made an election and accepted workmen's 
compensation benefits, both statutory and case law of the jurisdiction 
should be scrutinized to determine to what extent the claim of the 
injured party against third parties has been extinguished by acceptance 
of compensation benefits. While it is infrequent that the claim is fully 
extinguished, it is true in some jurisdictions, and the only proper 
party claimant is the workmen's compensation carrier. Even where the 
injured party's claim has not been fully extinguished, most 
jurisdictions provide that the compensation insurance carrier has a lien 
on any recovery from the third party, and no settlement should be 
reached without approval by the carrier where required by local law. 
Additionally, claims from the workmen's compensation carrier as subrogee 
or otherwise will not be considered payable where the United States has 
paid the premiums, directly or indirectly, for the workmen's 
compensation insurance. Applicable contract provisions holding the 
United States harmless should be utilized.
    (4) Whether medical payments paid by an insurer to its insured can 
be subrogated depends on local law. Some jurisdictions prohibit these 
claims to be submitted by the insurer notwithstanding a contractual 
provision providing for subrogation. Therefore, local law should be 
researched prior to deciding the issue, and claims forwarded to higher 
headquarters for adjudication should contain the results of said 
research. Such claims, where prohibited by state law, will also be 
barred by the Antiassignment Act.
    (5) Care will be exercised to require insurance disclosure 
consistent with the type of incident generating the claim. Every 
claimant will, as a part of his claim, make a written disclosure 
concerning insurance coverage as to:
    (i) The name and address of every insurer;
    (ii) The kind and amount of insurance;
    (iii) Policy number;
    (iv) Whether a claim has been or will be presented to an insurer, 
and, if so, the amount of such claims; and
    (v) Whether the insurer has paid the claim in whole or in part, or 
has indicated payment will be made.
    (6) Each subrogee must substantiate his interest or right to file a 
claim by appropriate documentary evidence and should support the claim 
as to liability and measure of damages in the same manner as required of 
any other claimant. Documentary evidence of payment to a subrogor does 
not constitute evidence either of liability of the Government or of the 
amount of damages. Approving and settlement authorities will make 
independent determinations upon the evidence of record and the law.

[[Page 239]]

    (7) Subrogated claims are not cognizable under Secs. 536.90 through 
536.97 and the FCA (10 U.S.C. 2734).
    (c) Transfer and assignments. (1) Except as they occur by operation 
of law or after a voucher for the payment has been issued, unless within 
the exceptions set forth by statute (see 31 U.S.C. 3727 and AR 37-107), 
the following are null and void--
    (i) Every purported transfer or assignment of a claim against the 
United States, or of any part of or interest in a claim, whether 
absolute or conditional.
    (ii) Every power of attorney or other purported authority to receive 
payment of all or part of any such claim.
    (2) The purposes of the Antiassignment Act are to eliminate multiple 
payment of claims, to cause the United States to deal only with original 
parties, and to prevent persons of influence from purchasing claims 
against the United States.
    (3) In general, this statute prohibits voluntary assignments of 
claims with the exception of transfers or assignments made by operation 
of law. The operation of law exception has been held to apply to claims 
passing to assignees because of bankruptcy proceedings, assignments for 
the benefit of creditors, corporate liquidations, consolidations or 
reorganizations, and where title passes by operation of law to heirs or 
legatees. Subrogated claims which arise under a statute are not barred 
by the Antiassignment Act. For example, subrogated worker's compensation 
claims are cognizable when presented by the insurer.
    (4) Subrogated claims which arise pursuant to contractual provisions 
may be paid to the subrogee if the subrogated claim is recognized by 
state statute or decision. For example, an insurer under an automobile 
insurance policy becomes subrogated to the rights of a claimant upon 
payment of a property damage claim. Generally, such subrogated claims 
are authorized by state law and are therefore not barred by the 
Antiassignment Act.
    (5) Before claims are paid, it is necessary to determine whether 
there may be a valid subrogated claim under Federal or State statute or 
subrogation contract held valid by State law. If there may be a valid 
subrogated claim forthcoming, payment should be withheld for this 
portion of the claim. If it is determined that claimant is the only 
proper party, full settlement is authorized.
    (d) Action by claimant--(1) Form of claim. The claimant will submit 
his claim using authorized official forms whenever practicable. A claim 
is filed only when the elements indicated in Sec. 536.3(c) have been 
supplied in writing by a person authorized to present a claim, unless 
the claim is cognizable under a regulation that specifies otherwise. A 
claim may be amended by the claimant at any time prior to final agency 
action or prior to the exercise of the claimant's option under 28 U.S.C. 
2675(a).
    (2) Signatures. (i) The claim and all other papers will be signed in 
ink by the claimant or by his duly authorized agent. Such signature will 
include the first name, middle initial, and surname. A married woman 
must sign her claim in her given name, for example, ``Mary A. Doe,'' 
rather than ``Mrs. John Doe.''
    (ii) Where the claimant is represented, the supporting evidence 
required by paragraph (a)(5) of this section will be required only if 
the claim is signed by the agent or legal representative. However, in 
all cases in which a claimant is represented, the name and address of 
the representative will be included in the file together with copies of 
all correspondence and records of conversations and other contacts 
maintained and included in the file. Frequently, these records are 
determinative as to whether the statute of limitations has been tolled.
    (3) Presentation. The claim should be presented to the commanding 
officer of the unit involved, or to the legal office of the nearest Army 
post, camp, or station, or other military establishment convenient to 
the claimant. In a foreign country where no appropriate commander is 
stationed, the claim should be submitted to any attache of the U.S. 
Armed Forces. Claims cognizable under Article VIII of the Agreement 
Regarding the Status of Forces of Parties to the North Atlantic Treaty, 
Article XVIII of the Treaty of Mutual Cooperation and Security between 
the

[[Page 240]]

United States and Japan regarding facilities and areas and the Status of 
United States Armed Forces in Japan (Japan SOFA) or other similar treaty 
or agreement are filed with designated claims officials of the receiving 
State.
    (e) Evidence to be submitted by claimant. The claimant should submit 
the evidence necessary to substantiate his claim. It is essential that 
independent evidence be submitted which will substantiate the 
correctness of the amount claimed.
    (f) Statute of limitations--(1) General. Each statute available to 
the Department of the Army for the administrative settlement of claims, 
except the Maritime Claims Settlement Act (10 U.S.C. 4802), specifies 
the time during which the right to file a claim must be exercised. These 
statutes of limitations, which are jurisdictional in nature, are not 
subject to waiver unless the statute expressly provides for waiver. 
Specific information concerning the period for filing under each statute 
is contained in the appropriate implementing sections of this 
regulation.
    (2) When a claim accrues. A claim accrues on the date on which the 
alleged wrongful act or omission results in an actionable injury or 
damage to the claimant or his decedent. Exceptions to this general rule 
may exist where the claimant does not know the cause of injury or death; 
that is, the claim accrues when the injured party, or someone acting on 
his or her behalf, knows both the existence and the cause of his or her 
injury. However, this exception does not apply when, at a later time, he 
or she discovers that the acts inflicting the injury may constitute 
medical malpractice. (See United States v. Kubrick, 444 U.S. 111, 100 S. 
Ct. 352 (1979).) The discovery rule is not limited to medical 
malpractice claims; it has been applied to diverse situations involving 
violent death, chemical and atomic testing, and erosion and hazardous 
work environment. In claims for indemnity or contribution against the 
United States, the accrual date is the time of the payment for which 
indemnity is sought or on which contribution is based.
    (3) Effect of infancy, incompetency or the filing of suit. The 
statute of limitations for administrative claims is not tolled by 
infancy or incompetency. Likewise, the statute of limitations is not 
tolled for purposes of filing an administrative claim by the filing of a 
suit based upon the same incident in a Federal, State, or local court 
against the United States or other parties.
    (4) Amendment of Claims. A claim may be amended by the claimant at 
any time prior to final agency action or prior to the exercise of the 
claimant's option under 28 U.S.C. 2675(a). A claim may be amended by 
changing the amount, the bases of liability, or elements of damages 
concerning the same incident. Parties may be added only if the 
additional party could have filed a joint claim initially. If the 
additional party had a separate cause of action, his claim may not be 
treated as an amendment but only as a separate claim and is thus barred 
if the statute of limitations has run. For example, if a claim is timely 
filed on behalf of a minor for personal injuries, a subsequent claim by 
a parent for loss of services is considered a separate claim and is 
barred if it is not filed prior to the running of the statute of 
limitations. Another example is where a separate claim is filed for loss 
of services or consortium by a spouse arising out of injuries to the 
husband or wife of the claimant. On the other hand, if a claim is timely 
filed by an insured for the deductible portion of the property damage, a 
subsequent claim by the insurer based on payment of property damage to 
its insured may be filed as an amendment even though the statute of 
limitations has run, unless final action has been taken on the insured's 
claim.
    (5) Date of receipt stops the running of the statute. In computing 
the time to determine whether the period of limitations has expired, 
exclude the first day and include the last day, except when it falls on 
a nonworkday such as Saturday, Sunday, or a legal holiday, in which case 
it is to be extended to the next workday.
    (g) By the command concerned--(1) General. If the claim is of a type 
and amount within the jurisdiction of the claims office of the command 
concerned and the claim is meritorious in the amount claimed, it will be 
approved and paid. If a claim in an

[[Page 241]]

amount in excess of the monetary jurisdiction of the claims office is 
meritorious in a lesser amount within its jurisdiction, the claim may be 
approved for payment provided the amount offered is accepted by the 
claimant in settlement of the claim. If the claim is not of a type 
within the jurisdiction of the claims office, or if the claimant will 
not accept an amount within its jurisdiction, the claim with supporting 
papers and a recommendation for appropriate action will be forwarded to 
the next higher claims authority. If the claim is determined to be not 
meritorious, it will be disapproved provided the claims office has 
settlement authority for claims of the type and amount involved. Prior 
to the disapproval of a claim under a particular statute, a careful 
review should be made to ensure that the claim is not properly payable 
under a different statute or on another basis.
    (2) Claims within settlement authority of USARCS or the Attorney 
General. A copy of each of the following types of claims will be 
forwarded immediately to the Commander, USARCS:
    (i) One that appears to be of a type that must be brought to the 
attention of the Attorney General in accordance with his or her 
regulations;
    (ii) One in which the demand exceeds $15,000; or
    (iii) One which is a claim under the FTCA (Sec. 536.50) where the 
total of all claims, arising from a single incident, actual or 
potential, exceeds $25,000. USARCS is responsible for the monitoring and 
settlement of such claims and will be kept informed on the status of the 
investigation and processing thereof. Direct liaison and correspondence 
between the USARCS and the field claims authority or investigator is 
authorized on all claims matters, and assistance will be furnished as 
required. The field claims office will provide USARCS duplicates of all 
documentation as it is added to the field file. This will include all 
correspondence, memoranda, medical reports, reports, evaluations, and 
any other material relevant to the investigation and processing of the 
claim.
    (3) Claims involving privately owned vehicles. In areas where the 
FTCA (Sec. 536.50) is applicable, any claim except those under 31 U.S.C. 
3721, arising out of an accident involving a privately owned vehicle 
driven by a member of the DA, or by ARNG personnel as defined in 
Sec. 536.71, based on an allegation that the privately owned vehicle 
travel was within the scope of employment, should be forwarded without 
adjudication directly to the Commander, USARCS. Additional information 
is provided in Secs. 536.20 through 536.35, 536.90 through 536.97.
    (4) Claims within the exclusive jurisdiction of USARCS. Authority to 
settle the following claims has been delegated to the Commander, USARCS, 
only:
    (i) Claims of under Article VIII of the Agreement Regarding the 
Status of Forces Parties to the North Atlantic Treaty and other treaties 
or international agreements where the United States is the Receiving 
State;
    (ii) Claims under Sec. 536.60 (Maritime claims not arising out of 
civil works activities) except as delegated to overseas command claims 
services;
    (iii) Industrial security claims, DoD Directive 5220.6, 12 August 
1985; and
    (iv) Claims of the U.S. Postal Service. Files of these claims will 
be forwarded directly to the Commander, USARCS, with the report of 
investigation and supporting papers, including a memorandum of opinion.
    (5) Maritime claims. (i) A copy of a claim arising out of damage, 
loss, injury, or death which originates on navigable waters and is not 
considered cognizable under the Army Maritime Claims Settlement Act (10 
U.S.C. 4802-4804) will be forwarded immediately to the Commander, USARCS 
or appropriate overseas command claims service. A determination will be 
made as to whether the claim must be processed under the Suits in 
Admiralty Act or the Public Vessels Act or may be considered 
administratively.
    (ii) If a maritime claim cannot be settled administratively, the 
claimant will be advised that he must file a suit.
    (iii) If it is determined that both administrative and judicial 
remedies are available, the claim may be processed administratively and 
the claimant advised of the need to file a suit within 2 years of the 
date of occurrence if he chooses his judicial remedy.

[[Page 242]]

    (iv) If the claim is for damage to property, or injury to person, 
consummated on land, a claimant who makes an oral inquiry or demand will 
be advised that no suit can be filed until a period of six months has 
expired after a claim in writing is submitted.
    (v) If it is determined by the Commander, USARCS, that a claim, 
apparently maritime in nature, is not within the maritime jurisdiction, 
the claimant will be so advised, and the claim will be returned for 
processing under the appropriate section of this regulation.
    (h) By district or division engineer. The district or division 
engineer area claims office will take the action of an initial claims 
authority. Files of unpaid claims should be forwarded directly to 
USARCS. An information copy will be sent to the next higher engineer 
authority unless such requirement is waived.
    (i) By higher settlement authority. A higher claims settlement 
authority may take action with respect to a claim in the same manner as 
the initial claims office. However, if it is determined that any further 
attempt to settle the claim would be unwarranted, the claim will be 
forwarded to the Commander, USARCS, with recommendations.



Sec. 536.6  Determination of liability.

    (a) In the adjudication of tort claims, the liability of the United 
States generally is determined in accordance with the law of the State 
or country where the act or omission occurred, except that any conflict 
between local law and the applicable United States statute will be 
resolved in favor of the latter. However, in claims by inhabitants of 
the United States arising in foreign countries, liability is determined 
in accordance with general principles of tort law common to the majority 
of American jurisdictions as evidenced by Federal case law and standard 
legal publications, except as it applies to absolute liability. Where 
liability is not clear or other issues exist, settlements should truly 
reflect the uncertainties in the adjudication of such issues. Compromise 
settlements are encouraged provided agreement can be reached that 
reflects the reduced value of the damages as measured against the full 
value or range of value if such uncertainties or issues did not exist 
and were it possible for the claimant to successfully litigate the 
claim.
    (b) Quantum exclusion. The costs of filing a claim and similar 
costs, for example, court costs, bail, interest, inconvenience expenses, 
or costs of long distance telephone calls or transportation in 
connection with the preparation of a claim, are not proper quantum 
elements and will not be allowed.



Sec. 536.7  Incident to service exclusionary rule.

    (a) General. A claim for personal injury or death of a member of the 
Armed Forces of the United States or a civilian employee of the United 
States that accrued incident to his service is not payable under this 
regulation. A claim for property damage that accrued incident to the 
service of a member of the Armed Forces may be payable under 31 U.S.C. 
3721 or Secs. 536.20 through 536.35 depending on the facts.
    (b) Property damage claims. A claim for damage to or loss of 
personal property of a claimant who is within one of the categories of 
proper party claimants under 31 U.S.C. 3721, which is otherwise 
cognizable under 31 U.S.C. 3721, must first be considered thereunder. If 
a claim is not clearly compensable under 31 U.S.C. 3721, and it arises 
incident to a noncombat activity of the DA or was caused by a negligent 
or wrongful act or omission of military personnel or civilian employees 
of the Department of Defense (DOD), it may be cognizable under either 
Secs. 536.20 through 536.35 or Sec. 536.50. The claim, if meritorious in 
fact, will probably be payable under one authorization or another 
regardless of whether the claim accrued incident to the service of the 
claimant.
    (c) Personal injury and death claims. (1) Only after the death or 
personal injury (which is the subject of the claim) has been determined 
to have not been incurred incident to the member's service should 
Secs. 536.20 through 536.35 and Sec. 536.50 be studied to determine 
which, if either, provides a proper basis for settlement of the claim. 
In any event, the rule in U.S. v. Brooks, 176 F.2d 482 (4th Cir. 1949) 
requiring setoff of

[[Page 243]]

amounts obtained through military or veterans' compensation systems 
against amounts otherwise recoverable will be followed. Other Government 
benefits, funded by general treasury revenues and not by the claimant's 
contributions, may also be used as a setoff against the settlement. 
(See, Overton v. United States, 619 F.2d 1299 (8th Cir. 1980)).
    (2) As the incident to service issue is determinative as to whether 
this type of claim may be processed administratively at all, the 
applicable law and facts should be carefully considered before deciding 
that injury or death was not incident to service. Such claims also are 
often difficult to settle on the issue of quantum and thus more likely 
to end in litigation. Moreover, the United States may well elect to 
defend the lawsuit on the basis of the incident to service exclusion, 
and this defense could be prejudiced by a contrary administrative 
determination that a service member's personal injuries or death were 
not incident to service. Doubtful cases will be forwarded to the 
Commander, USARCS without action along with sufficient factual 
information to permit a determination of the incident to service 
question.



Sec. 536.8  Use of appraisers and independent medical examinations.

    (a) Appraisers. Appraisers should be used in all claims where an 
appraisal is reasonably necessary and useful in effectuating the 
administrative settlement of the claims. The decision to use an 
appraiser is at the discretion of DA.
    (b) Independent medical examinations. In claims involving serious 
personal injuries, for example, normally those cases in which there is 
an allegation of temporary or permanent disability, the claimant should 
be examined by an independent physician, or other medical specialist, 
depending upon the nature and extent of the injuries. The decision to 
conduct an independent medical examination is at the discretion of DA.



Sec. 536.9  Effect on award of other payments to claimant.

    The total award to which the claimant (and subrogee) may be entitled 
normally will be computed as follows:
    (a) Determine the total of the loss or damage suffered.
    (b) Deduct from the total loss or damage suffered any payment, 
compensation, or benefit the claimant has received from the following 
sources:
    (1) The U.S. or ARNG employee/member who caused the damage.
    (2) The U.S. or ARNG employee's/member's insurer.
    (3) Any person or agency in a surety relationship with the U.S. 
employee; or
    (4) Any joint tortfeasor or insurer, to include Government 
contractors under contracts or in jurisdictions where it is permissible 
to obtain contribution or indemnity from the contractor in settlement of 
claims by contractor employees and third parties.
    (5) Any advance payment made pursuant to Sec. 536.13.
    (6) Any benefit or compensation based directly or indirectly on an 
employer-employee relationship with the United States or Government 
contractor and received at the expense of the United States including 
but not limited to medical or hospital services, burial expenses, death 
gratuities, disability payment, or pensions.
    (7) The State (Commonwealth, etc.) whose employee or ARNG member 
caused or generated an incident that was a proximate cause of the 
resulting damages.
    (8) Value of Federal medical care.
    (9) Benefits paid by the Veterans Administration (VA) that are 
intended to compensate the same elements of damage. When the claimant is 
receiving money benefits from the VA under 38 U.S.C. 351 for a non-
service connected disability or death based on the injury that is the 
subject of the claim, acceptance of a settlement or an award under the 
FTCA (Sec. 536.50) will discontinue the VA monetary benefits until the 
amount that would have otherwise been received in VA monetary benefits 
is equal to the total amount of the agreement or award including 
attorney fees. While monetary benefits received under 38 U.S.C. 351 must 
be discontinued as above, medical benefits, that is, VA medical care may 
continue provided the settlement or award expressly provides for such 
continuance and the appropriate VA official is informed of such 
continuance.

[[Page 244]]

    (10) When the claimant is receiving money benefits under 38 U.S.C. 
410(b) for non-service connected death, arising from the injury that is 
the subject of the claim, acceptance of a settlement or award under the 
FTCA (Sec. 536.50) or under any other tort procedure will discontinue 
the VA benefits until the amount that would have otherwise been received 
in VA benefits is equal to the amount of the total settlement or award 
including attorney fees. The discontinuation of monetary benefits under 
38 U.S.C. 410(b) has no effect on the receipt of other VA benefits. The 
claimant should be informed of the foregoing prior to the conclusion of 
any settlement and thus afforded an opportunity to make appropriate 
adjustment in the amount being negotiated.
    (11) Value of other Federal benefits to which the claimant did not 
contribute, or at least to the extent they are funded from general 
revenue appropriation.
    (12) Collateral sources where permitted by State law (for example, 
State or Federal workers' compensation, social security, private health, 
accident, and disability benefits paid as a result of injuries caused by 
a health care provider).
    (c) No deduction will be made for any payment the claimant has 
received by way of voluntary contributions, such as donations of 
charitable organizations.
    (d) Where a payment has been made to the claimant by his insurer or 
other subrogee, or under workmen's compensation insurance coverage, as 
to which subrogated interests are allowable, the award based on total 
damages will be apportioned as their separate interests are indicated 
(see Sec. 536.5(b)).
    (e) After deduction of permissible collateral and non-collateral 
sources, also deduct that portion of the loss or damage believed to have 
been caused by the negligence of the claimant, third parties whose 
negligence can be imputed to the claimant, or joint tortfeasors who are 
liable for their share of the negligence (for example, where some form 
of the Uniform Contribution Among Joint Tortfeasors Act has been 
passed).
    (f) Claims with more than one potential source of recovery. (1) The 
Government seeks to avoid multiple recovery, that is, claimants seeking 
recovery from more than one potential source, and to minimize the award 
it must make. The claims investigation should therefore identify other 
parties potentially liable to the claimant and/or their insurance 
carriers; indicate the status of any claims made or include a statement 
that none has been made so that it can be assured there is only one 
recovery and the Government does not pay a disproportionate share. Where 
no claim has been made by the claimant against others potentially 
liable, if applicable State law grants the Government the right to 
indemnity or contribution, and it is felt the Government may be entitled 
to either under the facts developed by the claims investigation, the 
claims officer or attorney should formally notify the other parties of 
their potential liability, the Government's willingness to share 
information, and its expectation of shared responsibility for any 
settlement. Furthermore, the claimant may be receiving or entitled to 
receive benefits from collateral and non-collateral sources, which can 
be deducted from the total loss or damage. Accordingly, a careful review 
must be made of applicable State laws regarding joint and several 
liability, indemnity, contribution, comparative negligence, and the 
collateral source doctrine.
    (2) If a demand by a claimant or an inquiry by a potential claimant 
is directed solely to the Army, in a situation where it appears that the 
responsible Army employee may have applicable insurance coverage, 
inquiry should be made of the employee as to whether he has liability 
insurance.
    (i) If so, determine if the insurer has made or will make any 
payment to claimant. Under applicable State law, the United States may 
be an additional named insured entitled to coverage under the employee's 
liability policy. (See 16 ALR3d 1411; United States v. State Farm Mutual 
Ins. Co., 245 F. Supp. 58 (D. Ore. 1965.)) Therefore, where there may be 
applicable insurance coverage, there should be a review of the policy 
language together with the rules and regulations of the State insurance

[[Page 245]]

regulatory body to determine whether the United States comes within the 
definition of ``insured,'' and whether the exclusion of the United 
States from policy coverage conforms with state law and policy.
    (ii) If the employee refuses to cooperate in providing this 
information, he or she should be advised to comply with the notice 
requirements of the insurance policy and to request the insurance 
carrier contact the claims officer or attorney. In addition, other 
sources of information, such as vehicle registration records, will be 
checked to ascertain the employee's insurer. The case should be followed 
to ascertain whether the employee's insurer has made or will make any 
payment to the claimant before deciding whether to settle the claim 
against the Government. Normally, the award, if any, to the claimant 
will be reduced by the amount of the payment of the employee's insurance 
carrier.
    (3) If the employee is the sole target of the claim and Army claims 
authorities arrange to have the claim made against the Government, the 
member or employee should be required to notify his or her insurance 
carrier according to the policy and inform DA claims authorities as to 
the details of the insurance coverage, including the name of the 
insurance carrier. Except when the ``Drivers Act'' is applicable, the 
insurance carrier is expected to participate in the negotiation of the 
claims settlement and to pay its fair share of any award to the 
claimant.
    (4) Where the responsible Army employee is ``on loan'' to another 
employer other than the United States, for example, civilian institution 
for ROTC instructor, or performing duties for a foreign government, 
inquiry should be made to determine whether there is applicable 
statutory or insurance coverage concerning the acts of the responsible 
employee and contribution or indemnification sought, as appropriate. In 
the case of foreign governments, applicable treaties or agreements are 
considered controlling.
    (5) A great many claims cognizable under the FTCA (Sec. 536.50) are 
now settled on a compromise basis. A major consideration in many such 
settlements is the identification of other sources of recovery. This is 
true in a variety of factual situations where there is a potential joint 
tortfeasor; for example, multi-vehicle accidents with multiple drivers 
and guest passengers, State or local government involvement, contractors 
performing non-routine tasks for the Government, medical treatment 
rendered to a claimant by non-Government employees, or incidents caused 
by a member or employee of the military department of a State or 
Commonwealth with whom the DA does not have a cost-sharing agreement. 
The law of the jurisdiction regarding joint and several liability, 
indemnity and contribution may permit shared financial responsibility, 
but even in jurisdictions which do not permit contribution, a compromise 
settlement can often be reached with the other tortfeasor's insurance 
company paying a portion of the total amount of the claim against the 
Government. For these reasons, every effort should be made to identify 
the insurance of all potential tortfeasors involved and the status of 
any claims made, and to demand contribution or indemnity where there is 
a substantial reason to believe that liability for the loss or damage 
should be shared.
    (6) Whenever a claim is filed against the Government under a statute 
which does not permit the payment of a subrogated interest, it is 
important to ensure that full information is obtained from the claimant 
regarding insurance coverage, if any, since it is the clear legislative 
intent of such statutes that insurance coverage be fully utilized before 
using appropriated funds to pay the claims.



Sec. 536.10  Settlement agreement.

    (a) General. Except under 31 U.S.C. 3721, if a claim is determined 
to be meritorious in an amount less than claimed, or if a claim 
involving personal injuries or death is approved in full, a settlement 
agreement will be obtained prior to payment. Acceptance by a claimant of 
an award constitutes a full and final settlement and release of any and 
all claims against the United States and against the military or 
civilian personnel whose act or omission gave rise to the claim.

[[Page 246]]

    (b) Claims involving workmen's compensation carriers. The settlement 
of a claim involving a claimant who has elected to receive workmen's 
compensation benefits under local law may require the consent of the 
workmen's compensation carrier and in certain jurisdictions the State 
agency with authority over workmen's compensation awards. Accordingly, 
claims approval and settlement authorities should be aware of local 
requirements.



Sec. 536.11  Appeals and notification to claimant as to denial of claims.

    (a) General. The nature and extent of the written notification to 
the claimant as to the denial of his claim should be based on whether 
the claimant has a judicial remedy following denial or whether he has an 
administrative recourse to appeal.
    (b) Final Actions under the Federal Tort Claims Act (28 U.S.C. 2671-
2680) Sec. 536.50. If the settlement authority has information available 
which could possibly be a persuasive factor in the decision of the 
claimant as to whether to resort to litigation, such information may be 
orally transmitted to the claimant and, in appropriate cases, released 
under normal procedures in accordance with AR 340-17. However, the 
written notification of the denial should be general in nature; for 
example, denial on the weaker ground of contributory negligence should 
be avoided, and the inclination should be to deny on the basis that the 
claimant was solely responsible for the incident. The claimant will be 
informed in writing of his right to bring an action in the appropriate 
United States District Court not later than 6 months after the date of 
mailing of the notification.
    (c) Denials under the MCA (10 U.S.C. 2733) Secs. 536.20 through 
536.35 and the NGCA (32 U.S.C. 715) Secs. 536.70 through 536.81. Claims 
disapproved under these statutes are subject to appeal and the claimant 
will be so informed. Also, the notice of disapproval will be 
sufficiently detailed to provide the claimant with an opportunity to 
know and attempt to overcome the basis for the disapproval. The claimant 
should not be afforded a valid basis for claiming surprise when an issue 
adverse to him is asserted as a basis for denying his appeal.
    (d) Denials on jurisdictional grounds. Regardless of the nature of 
the claim presented or the statute under which it may be considered, 
claims denied on jurisdictional grounds which are valid, certain, and 
not easily overcome and in which for this reason no detailed 
investigation as to the merits of the claim is conducted, should contain 
in the denial letter a general statement to the effect that the denial 
on such grounds is not to be construed as an expression of opinion on 
the merits of the claim or an admission of liability. If sufficient 
factual information is available to make a tentative ruling on the 
merits of the claim, liability may be expressly denied.
    (e) Where claim may be considered under more than one statute. In 
cases in which it is doubtful as to whether the MCA (Secs. 536.20 
through 536.35) or the NGCA (Secs. 536.70 through 536.81) or the FTCA 
(Sec. 536.50) is the appropriate statute under which to consider the 
claim, the claimant will be advised of the alternatives, for example, 
the right to sue or the right to appeal. Similarly, a claimant may be 
advised of his alternative remedies when the claimant is a military 
member and the issue of ``incident to service'' is not clear.



Sec. 536.12  Effect of payment.

    Acceptance of an award by the claimant, except for an advance 
payment, constitutes for the United States, and for the military member 
or civilian employee whose act or omission gave rise to the claim, a 
release from all liability to the claimant based on the act or omission.



Sec. 536.13  Advance payments.

    (a) Purpose. This section implements the Act of 8 September 1961 (75 
Stat. 488, 10 U.S.C. 2736), as amended by Public Law 90-521 (82 Stat. 
874), Public Law 98-564 (98 Stat. 2918) and Public Law 100-456. No new 
liability is created by 10 U.S.C. 2736, which merely permits partial 
advance payments on meritorious claims as specified in this section.
    (b) Conditions for advance payment. An advance payment not in excess 
of $100,000 is authorized in the limited

[[Page 247]]

category of claims resulting in immediate hardship arising from 
incidents that are payable under the provisions of Secs. 536.20 through 
536.35, 536.70 through 536.81, or the FCA (10 U.S.C. 2734). An advance 
payment is authorized only under the following circumstances:
    (1) The claim must be determined to be cognizable and meritorious 
under the provisions of either Secs. 536.20 through 536.35, and 536.70 
through 536.81, or the FCA (10 U.S.C. 2734).
    (2) There exists an immediate need of the person who suffered the 
injury, damage, or loss, or of the family of a person who was killed, 
for food, clothing, shelter, medical or burial expenses, or other 
necessities, and other resources for such expenses are not reasonably 
available.
    (3) The payee, so far as can be determined, would be a proper 
claimant, as is the spouse or next of kin of a claimant who is 
incapacitated.
    (4) The total damage sustained must exceed the amount of the advance 
payment.
    (5) A properly executed advance payment acceptance agreement has 
been obtained.



   Subpart B--Claims Arising From Activities of Military or Civilian 
              Personnel or Incident to Noncombat Activities



Sec. 536.20  Statutory authority.

    The statutory authority for Secs. 536.20 through 536.35 is contained 
in the Act of 10 August 1956 (70A Stat. 153, 10 U.S.C. 2733) commonly 
referred to as the Military Claims Act (MCA), as amended by Public Law 
90-522, 26 September 1968 (82 Stat. 875), Public Law 90-525, 26 
September 1968 (82 Stat. 877), Public Law 91-312, 8 July 1970 (84 Stat. 
412) and Public Law 93-336, 8 July 1974 (88 Stat. 291); and the Act of 8 
September 1961 (75 Stat. 488, 10 U.S.C. 2736), as amended by Public Law 
90-521, 26 September 1968 (82 Stat. 874) and Public Law 98-564, 30 
October 1984 (98 Stat. 2918).



Sec. 536.21  Definitions.

    The definitions of terms set forth in Sec. 536.3 are applicable to 
Secs. 536.20 through 536.35.



Sec. 536.22  Scope.

    Sections 536.20 through 536.35 are applicable in all places and 
prescribe the substantive bases and special procedural requirements for 
the settlement of claims against the United States for death, personal 
injury, or damage to or loss or destruction of property caused by 
military personnel or civilian employees of the DA acting within the 
scope of their employment, or otherwise incident to the noncombat 
activities of the DA, provided such claim is not for personal injury or 
death of a member of the Armed Forces or Coast Guard or a civilian 
officer or employee whose injury or death is incident to service.



Sec. 536.23  Claims payable.

    (a) General. Unless otherwise prescribed, a claim for personal 
injury, death, or damage to or loss of real or personal property is 
payable under Secs. 536.20 through 536.35 when--
    (1) Caused by an act or omission determined to be negligent, 
wrongful, or otherwise involving fault of military personnel or civilian 
officers or employees of the Army acting within the scope of their 
employment, or
    (2) Incident to the noncombat activities of the Army.
    (b) Property. The loss or damage to property which may be the 
subject of claims under Secs. 536.20 through 536.35 includes--
    (1) Real property used and occupied under a lease, express or 
implied, or otherwise (for example, in connection with training, field 
exercises, or maneuvers). An allowance may be made for the use and 
occupancy of real property arising out of trespass or other tort, even 
though claimed as rent.
    (2) Personal property bailed to the Government under an agreement, 
express or implied, unless the owner has expressly assumed the risk of 
damage or loss. Some losses may be payable using Operations and 
Maintenance, Army funds. Clothing damage or loss

[[Page 248]]

claims arising out of the operation of an Army Quartermaster laundry are 
considered to be incident to service and are payable only if claimant is 
not a proper claimant under 31 U.S.C. 3721.
    (3) Registered or insured mail in the possession of the Army, even 
though the loss was caused by a criminal act.
    (c) Effect of FTCA. A claim arising in the United States may be 
settled under Secs. 536.20 through 536.35 only if the FTCA (28 U.S.C. 
2671-2680), Sec. 536.50, has been judicially determined not to be 
applicable to claims of this nature, or if the claim arose incident to 
noncombat activities.
    (d) Advance payments. Advance payments under 10 U.S.C. 2736, as 
amended, in partial payment of meritorious claims to alleviate immediate 
hardship are authorized.



Sec. 536.24  Claims not payable.

    A claim is not payable under Secs. 536.20 through 536.35 which--
    (a) Results wholly from the negligent or wrongful act of the 
claimant or agent.
    (b) Is for reimbursement for medical, hospital, or burial expenses 
furnished at the expense of the United States.
    (c) Is purely contractual in nature.
    (d) Arises from private as distinguished from Government 
transactions.
    (e) Is based solely on compassionate grounds.
    (f) Is for war trophies or articles intended directly or indirectly 
for persons other than the claimant or members of his or her immediate 
family, such as articles acquired to be disposed of as gifts or for sale 
to another, voluntarily bailed to the Army, or is for precious jewels or 
other articles of extraordinary value voluntarily bailed to the Army. 
The preceding sentence is not applicable to claims involving registered 
or insured mail. No allowance will be made for any item when the 
evidence indicates that the acquisition, possession, or transportation 
thereof was in violation of DA directives.
    (g) Is for rent, damage, or other payments involving the 
acquisition, use, possession, or disposition of real property or 
interests therein by and for the DA, except as authorized by 
Sec. 536.23(b)(1). Real estate claims founded upon contract are 
generally processed under AR 405-15.
    (h) Is not in the best interests of the United States, is contrary 
to public policy, or is otherwise contrary to the basic intent of the 
governing statute (10 U.S.C. 2733); for example, claims by inhabitants 
of unfriendly foreign countries or by or based on injury or death of 
individuals considered to be unfriendly to the United States. When a 
claim is considered to be not payable for the reasons stated in this 
paragraph, it will be forwarded for appropriate action to the Commander, 
USARCS, together with the recommendations of the responsible claims 
office.
    (i) If presented by a national, or a corporation controlled by a 
national, or a country at war or engaged in armed conflict with the 
United States, or of any country allied with such enemy country unless 
the settlement authority having jurisdiction over the claim determines 
that the claimant is and, at the time of the incident, was friendly to 
the United States. A prisoner of war or an interned enemy alien is not 
excluded as to a claim for damage, loss, or destruction of personal 
property in the custody of the Government otherwise payable.
    (j) Is for personal injury or death of a member of the Armed Forces 
or Coast Guard or a civilian employee thereof which is incident to his 
or her service (10 U.S.C. 2733(b)(3)).
    (k) The types of claims not payable under the FTCA (see 
Sec. 536.50(j)) are also not payable under Secs. 536.20 through 536.35 
with the fol