[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2008 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          32


          Parts 400 to 629

                         Revised as of July 1, 2008


          National Defense
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2008
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

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                            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........................     563
      Alphabetical List of Agencies Appearing in the CFR......     583
      List of CFR Sections Affected...........................     593

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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 32 CFR 504.1 refers 
                       to title 32, part 504, 
                       section 1.

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

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                               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 
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    To determine whether a Code volume has been amended since its 
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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

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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 
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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 
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INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
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This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
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    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.

[[Page vii]]


REPUBLICATION OF MATERIAL

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    July 1, 2008.







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                               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, 2008.

    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, Cheryl E. Sirofchuck was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.

[[Page 1]]



                       TITLE 32--NATIONAL DEFENSE




                  (This book contains parts 400 to 629)

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

              SUBTITLE A--Department of Defense (Continued)

                                                                    Part

chapter v--Department of the Army...........................         504


Abbreviations 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 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]

504             Obtaining information from financial 
                    institutions............................           7
505             Army Privacy Act Program....................          15
507             Manufacture and sale of decorations, medals, 
                    badges, insignia, commercial use of 
                    heraldic designs and Heraldic Quality 
                    Control Program.........................          47
508             Competition with civilian bands.............          53
510             Chaplains...................................          54
513             Indebtedness of military personnel..........          54
516             Litigation..................................          65
518             The Freedom of Information Act Program......         121
525             Entry authorization regulation for Kwajalein 
                    Missile Range...........................         177
                    SUBCHAPTER B--CLAIMS AND ACCOUNTS
534             Military court fees.........................         184
536             Claims against the United States............         188
537             Claims on behalf of the United States.......         263
538             Military payment certificates...............         274
                    SUBCHAPTER C--MILITARY EDUCATION
542             Schools and colleges........................         277
543-544

[Reserved]

       SUBCHAPTER D--MILITARY RESERVATIONS AND NATIONAL CEMETERIES
552             Regulations affecting military reservations.         280
553             Army national cemeteries....................         341

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555             Corps of Engineers, research and 
                    development, laboratory research and 
                    development and tests, work for others..         353
                    SUBCHAPTER E--ORGANIZED RESERVES
562             Reserve Officers' Training Corps............         359
564             National Guard regulations..................         362
                         SUBCHAPTER F--PERSONNEL
571             Recruiting and enlistments..................         370
575             Admission to the United States Military 
                    Academy.................................         371
578             Decorations, medals, ribbons, and similar 
                    devices.................................         374
581             Personnel review board......................         475
583

Former personnel [Reserved]

584             Family support, child custody, and paternity         484
589             Compliance with court orders by personnel 
                    and command sponsored family members....         503
                        SUBCHAPTER G--PROCUREMENT
619

[Reserved]

                  SUBCHAPTER H--SUPPLIES AND EQUIPMENT
621             Loan and sale of property...................         508
623             Loan of Army materiel.......................         519
625             Surface transportation--administrative 
                    vehicle management......................         559
626-629

[Reserved]

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       SUBCHAPTER A_AID OF CIVIL AUTHORITIES AND PUBLIC RELATIONS



                        PARTS 400	500 [RESERVED]



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: 70 FR 60723, Oct. 19, 2005, unless otherwise noted.



Sec. 504.1  General.

    (a) Purpose. This part provides DA policies, procedures, and 
restrictions governing access to and disclosure of financial records 
maintained by financial institutions during the conduct of Army 
investigations or inquiries.
    (b) Applicability and scope. (1) This part applies to the Active 
Army, the Army National Guard of the United States (ARNGUS)/Army 
National Guard (ARNG), and the United States Army Reserve unless 
otherwise stated.
    (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 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 part also applies to financial records maintained by 
financial institutions as defined in Sec. 504.1(c)(1).
    (c) Explanation of terms. (1) For purposes of this part, the 
following terms apply:
    (i) Financial institution. Any office of a--
    (A) Bank.
    (B) Savings bank.
    (C) Card issuer as defined in section 103 of the Consumers Credit 
Protection Act (15 U.S.C. 1602(n)).
    (D) Industrial loan company.
    (E) Trust company.
    (F) Savings association.
    (G) Building and loan association.
    (H) Homestead association (including cooperative banks).
    (I) Credit union.
    (J) Consumer finance institution.
    (ii) 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.
    (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 which 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 inquiring into a violation of, or failure to comply with, a 
criminal or civil statute or any 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

[[Page 8]]

includes military police, criminal investigation, inspector general, and 
military intelligence activities conducting investigations of suspected 
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. With DA, the Defense Investigative Service conducts 
personnel security investigations.
    (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 means of obtaining the records authorized by 
this part will be used. (See Sec. 504.2 (c) through (g).)
    (2) Access requests. Except as provided in paragraph (d)(3) of this 
section and Sec. Sec. 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 part 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 part, 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) This part will not apply when financial records are sought by 
the Army under the Federal Rules for Civil Procedure, Criminal 
Procedure, Rules for Courts-Martial, or other comparable rules of other 
courts in connection with litigation to which the Government and the 
customer are parties.
    (4) No exceptions or waivers will be granted for those portions of 
this part required by law. Submit requests for exceptions or waivers of 
other aspects

[[Page 9]]

of this part to HQDA OPMG (DAPM-MPD-LE), Washington, DC 20310-2800.



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 section 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 U.S. Attorney or a U.S. District Court, as 
required by this part, will be coordinated with the supporting staff 
judge advocate before dispatch.
    (b) Customer consent. (1) A law enforcement office 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 to this 
part 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'' (12 U.S.C. 3401 et seq.) (app. B).
    (2) Any customer's consent not containing all of the elements listed 
in 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.
    (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 overseas 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, Military 
Justice.
    (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 inadmissible 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.

[[Page 10]]

    (e) Judicial subpoena. Judicial subpoenas--
    (1) Are those subpoenas issued in connection with a pending judicial 
proceeding.
    (2) Include subpoenas issued under Rule for Courts-Martial 703(e)(2) 
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.
    (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 of this part and will--
    (i) State that the request is issued under the Right to Financial 
Privacy Act of 1978 and this part.
    (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.
    (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 of this part.
    (ii) Personally served at least 10 days or mailed at least 14 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 10 days to challenge a notice request 
when personal service is made, and 14 days when service is by mail.
    (6) The head of the law enforcement office initiating the formal 
written request will set up procedures to ensure 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)(v)) 
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. Section 504.2(g)(2)(3) provides for emergency 
access in such cases of imminent danger. (No other procedures in this 
part apply to such 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--

[[Page 11]]

    (i) Physical injury to a person,
    (ii) Serious property damage, or
    (iii) Flight to avoid prosecution.
    (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 as 
soon as practicable--
    (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).

    (ii) Ensure that mailings under this section are by certified or 
registered mail to the last known address of the customer.
    (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 part 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 12333) and is for 
purposes 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 (March 10, 1979) 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 part is incorporated into a report of investigation or other 
correspondence, precautions must be taken to ensure that--

[[Page 12]]

    (i) The report or correspondence 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 only be made by an 
order of an appropriate court. This will be done when not granting a 
delay in serving the notice would result in--
    (i) Endangering the life or physical safety of any person.
    (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)(i) through 
(iv).
    (3) Coordination. When a delay of notice is appropriate, the law 
enforcement office involved will consult with the supporting staff judge 
advocate before attempting to obtain such a delay. Applications for 
delay 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)(2), 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 180-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 authorizing the delay, such 
office shall also serve personally or by mail to the customer the notice 
required in Sec. 504.2(f)(3).
    (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 12333. 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

[[Page 13]]

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 (CG) (or Deputy 
CG), U.S. 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.
    (k) Certification. A certificate of compliance with the Right to 
Financial Privacy Act of 1978 (app. C) will be provided to the financial 
institution as a prerequisite 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)).
    (5) Emergency access (Sec. 504.2(g)).
    (6) Foreign intelligence and foreign counterintelligence activities 
(Sec. 504.2(j)).



   Sec. 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 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.



  Sec. 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)
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. 
Furthermore, 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

[[Page 14]]

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)



Sec. 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.



 Sec. 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 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)_____________________________________________

[[Page 15]]



Sec. 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 Enclosures (see para ----)
 (Signature)____________________________________________________________



PART 505_ARMY PRIVACY ACT PROGRAM--Table of Contents




Sec.
505.1 General information.
505.2 General provisions.
505.3 Privacy Act systems of records.
505.4 Collecting personal information.
505.5 Individual access to personal information.
505.6 Amendment of records.
505.7 Disclosure of personal information to other agencies and third 
          parties.
505.8 Training requirements.
505.9 Reporting requirements.
505.10 Use and establishment of exemptions.
505.11 Federal Register publishing requirements.
505.12 Privacy Act enforcement actions.
505.13 Computer Matching Agreement Program.
505.14 Recordkeeping requirements under the Privacy Act.

Appendix A to Part 505--References
Appendix B to Part 505--Denial Authorities for Records Under Their 
          Authority (Formerly Access and Amendment Refusal Authorities)
Appendix C to Part 505--Privacy Act Statement Format
Appendix D to Part 505--Exemptions; Exceptions; and DoD Blanket Routine 
          Uses
Appendix E to Part 505--Litigation Status Sheet
Appendix F to Part 505--Example of a System of Records Notice
Appendix G to Part 505--Management Control Evaluation Checklist
Appendix H to Part 505--Definitions

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

    Source: 71 FR 46052, Aug. 10, 2006, unless otherwise noted.



Sec. 505.1  General information.

    (a) Purpose. This part sets forth policies and procedures that 
govern personal information maintained by the Department of the Army 
(DA) in Privacy Act systems of records. This part also provides guidance 
on collecting and disseminating personal information in general. The 
purpose of the Army Privacy Act Program is to balance the government's 
need to maintain information about individuals with the right of 
individuals to be protected against unwarranted invasions of their 
privacy stemming from Federal agencies' collection, maintenance,

[[Page 16]]

use and disclosure of personal information about them. Additionally, 
this part promotes uniformity within the Army's Privacy Act Program.
    (b) References: (1) Referenced publications are listed in Appendix A 
of this part.
    (2) DOD Computer Matching Program and other Defense Privacy 
Guidelines may be accessed at the Defense Privacy Office Web site http:/
/www.defenselink.mil/privacy.
    (c) Definitions are provided at Appendix H of this part.
    (d) Responsibilities. (1) The Office of the Administrative Assistant 
to the Secretary of the Army will--
    (i) Act as the senior Army Privacy Official with overall 
responsibility for the execution of the Department of the Army Privacy 
Act Program;
    (ii) Develop and issue policy guidance for the program in 
consultation with the Army General Counsel; and
    (iii) Ensure the DA Privacy Act Program complies with Federal 
statutes, Executive Orders, Office of Management and Budget guidelines, 
and 32 CFR part 310.
    (2) The Chief Attorney, Office of the Administrative Assistant to 
the Secretary of the Army (OAASA) will--
    (i) Provide advice and assistance on legal matters arising out of, 
or incident to, the administration of the DA Privacy Act Program;
    (ii) Serve as the legal advisor to the DA Privacy Act Review Board. 
This duty may be fulfilled by a designee in the Chief Attorney and Legal 
Services Directorate, OAASA;
    (iii) Provide legal advice relating to interpretation and 
application of the Privacy Act of 1974; and
    (iv) Serve as a member on the Defense Privacy Board Legal Committee. 
This duty may be fulfilled by a designee in the Chief Attorney and Legal 
Services Directorate, OAASA.
    (3) The Judge Advocate General will serve as the Denial Authority on 
requests made pursuant to the Privacy Act of 1974 for access to or 
amendment of Army records, regardless of functional category, concerning 
actual or potential litigation in which the United States has an 
interest.
    (4) The Chief, DA Freedom of Information Act and Privacy Office 
(FOIA/P), U.S. Army Records Management and Declassification Agency 
will--
    (i) Develop and recommend policy;
    (ii) Execute duties as the Army's Privacy Act Officer;
    (iii) Promote Privacy Act awareness throughout the DA;
    (iv) Serve as a voting member on the Defense Data Integrity Board 
and the Defense Privacy Board;
    (v) Represent the Department of the Army in DOD policy meetings; and
    (vi) Appoint a Privacy Act Manager who will--
    (A) Administer procedures outlined in this part;
    (B) Review and approve proposed new, altered, or amended Privacy Act 
systems of records notices and subsequently submit them to the Defense 
Privacy Office for coordination;
    (C) Review Department of the Army Forms for compliance with the 
Privacy Act and this part;
    (D) Ensure that reports required by the Privacy Act are provided 
upon request from the Defense Privacy Office;
    (E) Review Computer Matching Agreements and recommend approval or 
denial to the Chief, DA FOIA/P Office;
    (F) Provide Privacy Act training;
    (G) Provide privacy guidance and assistance to DA activities and 
combatant commands where the Army is the Executive Agent;
    (H) Ensure information collections are developed in compliance with 
the Privacy Act provisions;
    (I) Ensure Office of Management and Budget reporting requirements, 
guidance, and policy are accomplished; and
    (J) Immediately review privacy violations of personnel to locate the 
problem and develop a means to prevent recurrence of the problem.
    (5) Heads of Department of the Army activities, field-operating 
agencies, direct reporting units, Major Army commands, subordinate 
commands down to the battalion level, and installations will--
    (i) Supervise and execute the privacy program in functional areas 
and activities under their responsibility; and
    (ii) Appoint a Privacy Act Official who will--
    (A) Serve as the staff advisor on privacy matters;

[[Page 17]]

    (B) Ensure that Privacy Act records collected and maintained within 
the Command or agency are properly described in a Privacy Act system of 
records notice published in the Federal Register;
    (C) Ensure no undeclared systems of records are being maintained;
    (D) Ensure Privacy Act requests are processed promptly and 
responsively;
    (E) Ensure a Privacy Act Statement is provided to individuals when 
information is collected that will be maintained in a Privacy Act system 
of records, regardless of the medium used to collect the personal 
information (i.e., forms, personal interviews, stylized formats, 
telephonic interviews, or other methods);
    (F) Review, biennially, recordkeeping practices to ensure compliance 
with the Act, paying particular attention to the maintenance of 
automated records. In addition, ensure cooperation with records 
management officials on such matters as maintenance and disposal 
procedures, statutory requirements, forms, and reports; and
    (G) Review, biennially Privacy Act training practices. This is to 
ensure all personnel are familiar with the requirements of the Act.
    (6) DA Privacy Act System Managers and Developers will--
    (i) Ensure that appropriate procedures and safeguards are developed, 
implemented, and maintained to protect an individual's personal 
information;
    (ii) Ensure that all personnel are aware of their responsibilities 
for protecting personal information being collected and maintained under 
the Privacy Act Program;
    (iii) Ensure official filing systems that retrieve records by name 
or other personal identifier and are maintained in a Privacy Act system 
of records have been published in the Federal Register as a Privacy Act 
system of records notice. Any official who willfully maintains a system 
of records without meeting the publication requirements, as prescribed 
by 5 U.S.C. 552a, as amended, OMB Circular A-130, 32 CFR part 310 and 
this part, will be subject to possible criminal penalties and/or 
administrative sanctions;
    (iv) Prepare new, amended, or altered Privacy Act system of records 
notices and submit them to the DA Freedom of Information and Privacy 
Office for review. After appropriate coordination, the system of records 
notices will be submitted to the Defense Privacy Office for their review 
and coordination;
    (v) Review, biennially, each Privacy Act system of records notice 
under their purview to ensure that it accurately describes the system of 
records;
    (vi) Review, every four years, the routine use disclosures 
associated with each Privacy Act system of records notice in order to 
determine if such routine use continues to be compatible with the 
purpose for which the activity collected the information;
    (vii) Review, every four years, each Privacy Act system of records 
notice for which the Secretary of the Army has promulgated exemption 
rules pursuant to Sections (j) or (k) of the Act. This is to ensure such 
exemptions are still appropriate;
    (viii) Review, every year, contracts that provide for the 
maintenance of a Privacy Act system of records to accomplish an 
activity's mission. This requirement is to ensure each contract contains 
provisions that bind the contractor, and its employees, to the 
requirements of 5 U.S.C. 552a(m)(1); and
    (ix) Review, if applicable, ongoing Computer Matching Agreements. 
The Defense Data Integrity Board approves Computer Matching Agreements 
for 18 months, with an option to renew for an additional year. This 
additional review will ensure that the requirements of the Privacy Act, 
Office of Management and Budget guidance, local regulations, and the 
requirements contained in the Matching Agreements themselves have been 
met.
    (7) All DA personnel will--
    (i) Take appropriate actions to ensure personal information 
contained in a Privacy Act system of records is protected so that the 
security and confidentiality of the information is preserved;
    (ii) Not disclose any personal information contained in a Privacy 
Act system of records except as authorized by 5 U.S.C. 552a, DOD 
5400.11-R, or other applicable laws. Personnel willfully making a 
prohibited disclosure are subject to possible criminal penalties and/or 
administrative sanctions; and

[[Page 18]]

    (iii) Report any unauthorized disclosures or unauthorized 
maintenance of new Privacy Act systems of records to the applicable 
activity's Privacy Act Official.
    (8) Heads of Joint Service agencies or commands for which the Army 
is the Executive Agent or the Army otherwise provides fiscal, 
logistical, or administrative support, will adhere to the policies and 
procedures in this part.
    (9) Commander, Army and Air Force Exchange Service, will supervise 
and execute the Privacy Program within that command pursuant to this 
part.
    (10) Overall Government-wide responsibility for implementation of 
the Privacy Act is the Office of Management and Budget. The Department 
of Defense is responsible for implementation of the Act within the armed 
services. The Privacy Act also assigns specific Government-wide 
responsibilities to the Office of Personnel Management and the General 
Services Administration.
    (11) Government-wide Privacy Act systems of records notices are 
available at http://www.defenselink.mil/privacy.
    (e) Legal Authority. (1) Title 5, United States Code, Section 552a, 
as amended, The Privacy Act of 1974.
    (2) Title 5, United States Code, Section 552, The Freedom of 
Information Act (FOIA).
    (3) Office of Personnel Management, Federal Personnel Manual (5 CFR 
parts 293, 294, 297, and 7351).
    (4) OMB Circular No. A-130, Management of Federal Information 
Resources, Revised, August 2003.
    (5) DOD Directive 5400.11, Department of Defense Privacy Program, 
November 16, 2004.
    (6) DOD Regulation 5400.11-R, Department of Defense Privacy Program, 
August 1983.
    (7) Title 10, United States Code, Section 3013, Secretary of the 
Army.
    (8) Executive Order No. 9397, Numbering System for Federal Accounts 
Relating to Individual Persons, November 30, 1943.
    (9) Public Law 100-503, the Computer Matching and Privacy Act of 
1974.
    (10) Public Law 107-347, Section 208, Electronic Government (E-Gov) 
Act of 2002.
    (11) DOD Regulation 6025.18-R, DOD Health Information Privacy 
Regulation, January 24, 2003.



Sec. 505.2  General provisions.

    (a) Individual privacy rights policy. Army policy concerning the 
privacy rights of individuals and the Army's responsibilities for 
compliance with the Privacy Act are as follows--
    (1) Protect the privacy of United States living citizens and aliens 
lawfully admitted for permanent residence from unwarranted intrusion.
    (2) Deceased individuals do not have Privacy Act rights, nor do 
executors or next-of-kin in general. However, immediate family members 
may have limited privacy rights in the manner of death details and 
funeral arrangements of the deceased individual. Family members often 
use the deceased individual's Social Security Number (SSN) for federal 
entitlements; appropriate safeguards must be implemented to protect the 
deceased individual's SSN from release. Also, the Health Insurance 
Portability and Accountability Act extends protection to certain medical 
information contained in a deceased individual's medical records.
    (3) Personally identifiable health information of individuals, both 
living and deceased, shall not be used or disclosed except for 
specifically permitted purposes.
    (4) Maintain only such information about an individual that is 
necessary to accomplish the Army's mission.
    (5) Maintain only personal information that is timely, accurate, 
complete, and relevant to the collection purpose.
    (6) Safeguard personal information to prevent unauthorized use, 
access, disclosure, alteration, or destruction.
    (7) Maintain records for the minimum time required in accordance 
with an approved National Archives and Records Administration record 
disposition.
    (8) Let individuals know what Privacy Act records the Army maintains 
by publishing Privacy Act system of records notices in the Federal 
Register. This will enable individuals to review and make copies of 
these

[[Page 19]]

records, subject to the exemptions authorized by law and approved by the 
Secretary of the Army. Department of the Army Privacy Act systems of 
records notices are available at http://www.defenselink.mil/privacy.
    (9) Permit individuals to correct and amend records about themselves 
which they can prove are factually in error, not timely, not complete, 
not accurate, or not relevant.
    (10) Allow individuals to request an administrative review of 
decisions that deny them access to or the right to amend their records.
    (11) Act on all requests promptly, accurately, and fairly.
    (12) Keep paper and electronic records that are retrieved by name or 
personal identifier only in approved Privacy Act systems of records.
    (13) Maintain no records describing how an individual exercises his 
or her rights guaranteed by the First Amendment (freedom of religion, 
freedom of political beliefs, freedom of speech and press, freedom of 
peaceful assemblage, and petition) unless expressly authorized by 
statute, pertinent to and within the scope of an authorized law 
enforcement activity, or otherwise authorized by law or regulation.
    (14) Maintain appropriate administrative technical and physical 
safeguards to ensure records are protected from unauthorized alteration 
or disclosure.
    (b) Safeguard personal information. (1) Privacy Act data will be 
afforded reasonable safeguards to prevent inadvertent or unauthorized 
disclosure of records during processing, storage, transmission, and 
disposal.
    (2) Personal information should never be placed on shared drives 
that are accessed by groups of individuals unless each person has an 
``official need to know'' the information in the performance of official 
duties.
    (3) Safeguarding methods must strike a balance between the 
sensitivity of the data, need for accuracy and reliability for 
operations, general security of the area, and cost of the safeguards. In 
some situations, a password may be enough protection for an automated 
system with a log-on protocol. For additional guidance on safeguarding 
personal information in automated records see AR 380-67, The Department 
of the Army Personnel Security Program.
    (c) Conveying privacy protected data electronically via e-mail and 
the World Wide Web. (1) Unencrypted electronic transmission of privacy 
protected data makes the Army vulnerable to information interception 
which can cause serious harm to the individual and the accomplishment of 
the Army's mission.
    (2) The Privacy Act requires that appropriate technical safeguards 
be established, based on the media (e.g., paper, electronic) involved, 
to ensure the security of the records and to prevent compromise or 
misuse during transfer.
    (3) Privacy Web sites and hosted systems with privacy-protected data 
will employ secure sockets layers (SSL) and Public Key Infrastructure 
(PKI) encryption certificates or other DoD-approved commercially 
available certificates for server authentication and client/server 
authentication. Individuals who transmit data containing personally 
identifiable information over e-mail will employ PKI or other DoD-
approved certificates.
    (4) When sending Privacy Act protected information within the Army 
using encrypted or dedicated lines, ensure that--
    (i) There is an ``official need to know'' for each addressee 
(including ``cc'' addressees); and
    (ii) The Privacy Act protected information is marked For Official 
Use Only (FOUO) to inform the recipient of limitations on further 
dissemination. For example, add FOUO to the beginning of an e-mail 
message, along with the following language: ``This contains FOR OFFICIAL 
USE ONLY (FOUO) information which is protected under the Privacy Act of 
1974 and AR 340-21, The Army Privacy Program. Do not further disseminate 
this information without the permission of the sender.''
    (iii) Do not indiscriminately apply this statement. Use it only in 
situations when actually transmitting protected Privacy Act information.
    (iv) For additional information about marking documents ``FOUO'' 
review AR 25-55, Chapter IV.
    (5) Add appropriate ``Privacy and Security Notices'' at major Web 
site

[[Page 20]]

entry points. Refer to AR 25-1, para 6-4n for requirements for posting 
``Privacy and Security Notices'' on public Web sites. Procedures related 
to the establishing, operating, and maintaining of unclassified DA Web 
sites can be accessed at http://www.defenselink.mil/webmasters/policy/
DOD--web--policy.
    (6) Ensure public Web sites comply with policies regarding 
restrictions on persistent and third party cookies. The Army prohibits 
both persistent and third part cookies. (see AR 25-1, para 6-4n)
    (7) A Privacy Advisory is required on Web sites which host 
information systems soliciting personally identifying information, even 
when not maintained in a Privacy Act system of records. The Privacy 
Advisory informs the individual why the information is solicited and how 
it will be used. Post the Privacy Advisory to the Web site page where 
the information is being solicited, or to a well marked hyperlink 
stating ``Privacy Advisory--Please refer to the Privacy and Security 
Notice that describes why this information is collected and how it will 
be used.''
    (d) Protecting records containing personal identifiers such as names 
and Social Security Numbers. (1) Only those records covered by a Privacy 
Act system of records notice may be arranged to permit retrieval by a 
personal identifier (e.g., an individual's name or Social Security 
Number). AR 25-400-2, paragraph 6-2 requires all records covered by a 
Privacy Act system of records notice to include the system of record 
identification number on the record label to serve as a reminder that 
the information contained within must be safeguarded.
    (2) Use a coversheet or DA Label 87 (For Official Use Only) for 
individual records not contained in properly labeled file folders or 
cabinets.
    (3) When developing a coversheet, the following is an example of a 
statement that you may use: ``The information contained within is FOR 
OFFICIAL USE ONLY (FOUO) and protected by the Privacy Act of 1974.''
    (e) Notification of Individuals when personal information is lost, 
stolen, or compromised. (1) Whenever an Army organization becomes aware 
the protected personal information pertaining to a Service member, 
civilian employee (appropriated or non-appropriated fund), military 
retiree, family member, or another individual affiliated with Army 
organization (e.g., volunteer) has been lost, stolen, or compromised, 
the organization shall inform the affected individuals as soon as 
possible, but not later than ten days after the loss or compromise of 
protected personal information is discovered.
    (2) At a minimum, the organization shall advise individuals of what 
specific data was involved; the circumstances surrounding the loss, 
theft, or compromise; and what protective actions the individual can 
take.
    (3) If Army organizations are unable to comply with policy, they 
will immediately notify their superiors, who will submit a memorandum 
through the chain of command to the Administrative Assistant of the 
Secretary of the Army to explain why the affected individuals or 
population's personal information has been lost, stolen, or compromised.
    (4) This policy is also applicable to Army contractors who collect, 
maintain, use, or disseminate protected personal information on behalf 
of the organization.
    (f) Federal government contractors' compliance. (1) When a DA 
activity contracts for the design, development, or operation of a 
Privacy Act system of records in order to accomplish a DA mission, the 
agency must apply the requirements of the Privacy Act to the contractor 
and its employees working on the contract (See 48 CFR part 24 and other 
applicable supplements to the FAR; 32 CFR part 310).
    (2) System Managers will review annually, contracts contained within 
the system(s) of records under their responsibility, to determine which 
ones contain provisions relating to the design, development, or 
operation of a Privacy Act system of records.
    (3) Contractors are considered employees of the Army for the purpose 
of the sanction provisions of the Privacy Act during the performance of 
the contract requirements.
    (4) Disclosing records to a contractor for use in performing the 
requirements

[[Page 21]]

of an authorized DA contract is considered a disclosure within the 
agency under exception (b)(1), ``Official Need to Know'', of the Act.



Sec. 505.3  Privacy Act systems of records.

    (a) Systems of records. (1) A system of records is a group of 
records under the control of a DA activity that are retrieved by an 
individual's name or by some identifying number, symbol, or other 
identifying particular assigned to an individual.
    (2) Privacy Act systems of records must be--
    (i) Authorized by Federal statute or an Executive Order;
    (ii) Needed to carry out DA's mission; and
    (iii) Published in the Federal Register in a system of records 
notice, which will provide the public an opportunity to comment before 
DA implements or changes the system.
    (3) The mere fact that records are retrievable by a name or personal 
identifier is not enough. Records must actually be retrieved by a name 
or personal identifier. Records in a group of records that may be 
retrieved by a name or personal identifier but are not normally 
retrieved by this method are not covered by this part. However, they are 
covered by AR 25-55, the Department of the Army Freedom of Information 
Act Program.
    (4) The existence of a statute or Executive Order mandating the 
maintenance of a system of records to perform an authorized activity 
does not abolish the responsibility to ensure the information in the 
system of records is relevant and necessary to perform the authorized 
activity.
    (b) Privacy Act system of records notices. (1) DA must publish 
notices in the Federal Register on new, amended, altered, or deleted 
systems of records to inform the public of the Privacy Act systems of 
records that it maintains. The Privacy Act requires submission of new or 
significantly changed systems of records to OMB and both houses of 
Congress before publication in the Federal Register (See Appendix E of 
this part).
    (2) Systems managers must send a proposed notice at least 120 days 
before implementing a new, amended or altered system to the DA Freedom 
of Information and Privacy Office. The proposed or altered notice must 
include a narrative statement and supporting documentation. A narrative 
statement must contain the following items:
    (i) System identifier and name;
    (ii) Responsible Official, title, and phone number;
    (iii) If a new system, the purpose of establishing the system or if 
an altered system, nature of changes proposed;
    (iv) Authority for maintenance of the system;
    (v) Probable or potential effects of the system on the privacy of 
individuals;
    (vi) Whether the system is being maintained, in whole or in part, by 
a contractor;
    (vii) Steps taken to minimize risk of unauthorized access;
    (viii) Routine use compatibility;
    (ix) Office of Management and Budget information collection 
requirements; and
    (x) Supporting documentation as an attachment. Also as an attachment 
should be the proposed new or altered system notice for publication in 
the Federal Register.
    (3) An amended or altered system of records is one that has one or 
more of the following:
    (i) A significant increase in the number, type, or category of 
individuals about whom records are maintained;
    (ii) A change that expands the types of categories of information 
maintained;
    (iii) A change that alters the purpose for which the information is 
used;
    (iv) A change to equipment configuration (either hardware or 
software) that creates substantially greater access to the records in 
the system of records;
    (v) An addition of an exemption pursuant to Section (j) or (k) of 
the Act; or
    (vi) An addition of a routine use pursuant to 5 U.S.C. 552a(b)(3).
    (4) For additional guidance contact the DA FOIA/P Office.
    (5) On behalf of DA, the Defense Privacy Office maintains a list of 
DOD Components' Privacy Act system of records notices at the Defense 
Privacy Office's Web site http://www.defenselink.mil/privacy.

[[Page 22]]

    (6) DA PAM 25-51 sets forth procedures pertaining to Privacy Act 
system of records notices.
    (7) For new systems, system managers must establish appropriate 
administrative, technical, and physical safeguards to ensure the 
security and confidentiality of records. This applies to all new systems 
of records whether maintained manually or automated.
    (i) One safeguard plan is the development and use of a Privacy 
Impact Assessment (PIA) mandated by the E-Gov Act of 2002, Section 208. 
The Office of Management and Budget specifically directs that a PIA be 
conducted, reviewed, and published for all new or significantly altered 
information in identifiable form collected from or about the members of 
the public. The PIA describes the appropriate administrative, technical, 
and physical safeguards for new automated systems. This will assist in 
the protection against any anticipated threats or hazards to the 
security or integrity of data, which could result in substantial harm, 
embarrassment, inconvenience, or unfairness to any individual on whom 
information is maintained. Contact your local Information Officer for 
guidance on conducting a PIA.
    (ii) The development of appropriate safeguards must be tailored to 
the requirements of the system as well as other factors, such as the 
system environment, location, and accessibility.



Sec. 505.4  Collecting personal information.

    (a) General provisions. (1) Employees will collect personal 
information to the greatest extent practicable directly from the subject 
of the record. This is especially critical, if the information may 
result in adverse determinations about an individual's rights, benefits, 
and privileges under federal programs (See 5 U.S.C. 552a(e)(2)).
    (2) It is unlawful for any Federal, State, or local government 
agency to deny anyone a legal right, benefit, or privilege provided by 
law for refusing to give their SSN unless the law requires disclosure, 
or a law or regulation adopted before January 1, 1975, required the SSN 
or if DA uses the SSN to verify a person's identity in a system of 
records established and in use before that date. Executive Order 9397 
(issued prior to January 1, 1975) authorizes the Army to solicit and use 
the SSN as a numerical identifier for individuals in most federal 
records systems. However, the SSN should only be collected as needed to 
perform official duties. Executive Order 9397 does not mandate the 
solicitation of SSNs from Army personnel as a means of identification.
    (3) Upon entrance into military service or civilian employment with 
DA, individuals are asked to provide their SSN. The SSN becomes the 
service or employment number for the individual and is used to establish 
personnel, financial, medical, and other official records. After an 
individual has provided his or her SSN for the purpose of establishing a 
record, the Privacy Act Statement is not required if the individual is 
only requested to furnish or verify the SSN for identification purposes 
in connection with the normal use of his or her records. If the SSN is 
to be used for a purpose other than identification, the individual must 
be informed whether disclosure of the SSN is mandatory or voluntary; by 
what statutory authority the SSN is solicited; and what uses will be 
made of the SSN. This notification is required even if the SSN is not to 
be maintained in a Privacy Act system of records.
    (4) When asking an individual for his or her SSN or other personal 
information that will be maintained in a system of records, the 
individual must be provided with a Privacy Act Statement.
    (b) Privacy Act Statement (PAS). (1) A Privacy Act Statement is 
required whenever personal information is requested from an individual 
and will become part of a Privacy Act system of records. The information 
will be retrieved by the individual's name or other personal identifier 
(See 5 U.S.C. 552a(e)(3)).
    (2) The PAS will ensure that individuals know why the information is 
being collected so they can make an informed decision as to providing 
the personal information.
    (3) In addition, the PAS will include language that is explicit, 
easily understood, and not so lengthy as to deter an individual from 
reading it.

[[Page 23]]

    (4) A sign can be displayed in areas where people routinely furnish 
this kind of information, and a copy of the PAS will be made available 
upon request by the individual.
    (5) Do not ask the person to sign the PAS.
    (6) A Privacy Act Statement must include the following four items--
    (i) Authority: Cite the specific statute or Executive Order, 
including a brief title or subject that authorizes the DA to collect the 
personal information requested.
    (ii) Principal Purpose (s): Cite the principal purposes for which 
the information will be used.
    (iii) Routine Uses: A list of where and why the information will be 
disclosed OUTSIDE of DOD. Applicable routine uses are published in the 
applicable Privacy Act system of records notice(s). If none, the 
language to be used is: ``Routine Use(s): None. However the `Blanket 
Routine Uses' set forth at the beginning of the Army's compilation of 
systems of records notices apply.''
    (iv) Disclosure: Voluntary or Mandatory. Include in the Privacy Act 
Statement specifically whether furnishing the requested personal data is 
mandatory or voluntary. A requirement to furnish personal data is 
mandatory ONLY when a federal statute, Executive Order, regulation, or 
other law specifically imposes a duty on the individual to provide the 
information sought, and when the individual is subject to a penalty if 
he or she fails to provide the requested information. If providing the 
information is only a condition of or prerequisite to granting a benefit 
or privilege and the individual has the option of receiving the benefit 
or privilege, providing the information is always voluntary. However, 
the loss or denial of the privilege, benefit, or entitlement sought must 
be listed as a consequence of not furnishing the requested information.
    (7) Some acceptable means of administering the PAS are as follows, 
in the order of preference--
    (i) Below the title of the media used to collect the personal 
information. The PAS should be positioned so that the individual will be 
advised of the PAS before he or she provides the requested information;
    (ii) Within the body with a notation of its location below the 
title;
    (iii) On the reverse side with a notation of its location below the 
title;
    (iv) Attached as a tear-off sheet; or
    (v) Issued as a separate supplement.
    (8) An example of a PAS is at appendix B of this part.
    (9) Include a PAS on a Web site page if it collects information 
directly from an individual and is retrieved by his or her name or 
personal identifier (See Office of Management and Budget Privacy Act 
Guidelines, 40 FR 28949, 28961 (July 9, 1975)).
    (10) Army policy prohibits the collection of personally identifying 
information on public Web sites without the express permission of the 
user. Requests for exceptions must be forwarded to the Army CIO/G-6. 
(See AR 25-1, para 6-4n.)
    (c) Collecting personal information from third parties. (1) It may 
not be practical to collect personal information directly from the 
individual in all cases. Some examples of when collection from third 
parties may be necessary are when--
    (i) Verifying information;
    (ii) Opinions or evaluations are needed;
    (iii) The subject cannot be contacted; or
    (iv) At the request of the subject individual.
    (2) When asking third parties to provide information about other 
individuals, they will be advised of--
    (i) The purpose of the request; and
    (ii) Their rights to confidentiality as defined by the Privacy Act 
of 1974 (Consult with your servicing Staff Judge Advocate for potential 
limitations to the confidentiality that may be offered pursuant to the 
Privacy Act).
    (d) Confidentiality promises. Promises of confidentiality must be 
prominently annotated in the record to protect from disclosure any 
information provided in confidence pursuant to 5 U.S.C. 552a(k)(2), 
(k)(5), or (k)(7).



Sec. 505.5  Individual access to personal information.

    (a) Individual access. (1) The access provisions of this part are 
intended for use by individuals whose records are maintained in a 
Privacy Act system of

[[Page 24]]

records. If a representative acts on their behalf, a written 
authorization must be provided, with the exception of members of 
Congress acting on behalf of a constituent.
    (2) A Department of the Army ``Blanket Routine Use'' allows the 
release of Privacy Act protected information to members of Congress when 
they are acting on behalf of the constituent and the information is 
filed and retrieved by the constituent's name or personal identifier. 
The said ``Blanket Routine Use'' is listed below.
    ``Congressional Inquiries Disclosure Routine Use: Disclosure from a 
system of records maintained by a DOD Component 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.''
    (3) Upon a written request, an individual will be granted access to 
information pertaining to him or her that is maintained in a Privacy Act 
system of records, unless--
    (i) The information is subject to an exemption, the system manager 
has invoked the exemption, and the exemption is published in the Federal 
Register; or
    (ii) The information was compiled in reasonable anticipation of a 
civil action or proceeding.
    (4) Legal guardians or parents acting on behalf of a minor child 
have the minor child's rights of access under this part, unless the 
records were created or maintained pursuant to circumstances where the 
interests of the minor child were adverse to the interests of the legal 
guardian or parent.
    (5) These provisions should allow for the maximum release of 
information consistent with Army and DOD's statutory responsibilities.
    (b) Individual requests for access. (1) Individuals will address 
requests for access to records in a Privacy Act system of records to the 
system manager or the custodian of the record designated in DA systems 
of records notices (See DA PAM 25-51 or the Defense Privacy Office's Web 
site http://www.defenselink.mil/privacy).
    (2) Individuals do not have to state a reason or justify the need to 
gain access to records under the Act.
    (3) Release of personal information to individuals under this 
section is not considered a ``public release'' of information.
    (c) Verification of identity for first party requesters. (1) Before 
granting access to personal data, an individual will provide reasonable 
verification of identity.
    (2) When requesting records in writing, the preferred method of 
verifying identity is the submission of a notarized signature. An 
alternative method of verifying identity for individuals who do not have 
access to notary services is the submission of an un-sworn declaration 
in accordance with 28 U.S.C. 1746 in the following format:
    (i) If executed within the United States, its territories, 
possessions, or commonwealths: ``I declare (or certify, verify, or 
state) under penalty of perjury that the foregoing is true and correct. 
Executed on (date). (Signature)''.
    (ii) If executed outside of the United States: ``I declare under 
perjury or penalty under the laws of the United States of America that 
the foregoing is true and correct. Executed on (date). (Signature).''
    (3) When an individual seeks access in person, identification can be 
verified by documents normally carried by the individual (such as 
identification card, driver's license, or other license, permit or pass 
normally used for identification purposes). However, level of proof of 
identity is commensurate with the sensitivity of the records sought. For 
example, more proof is required to access medical records than is 
required to access parking records.
    (4) Telephonic requests will not be honored.
    (5) An individual cannot be denied access solely for refusal to 
provide his or her Social Security Number (SSN) unless the SSN was 
required for access by statute or regulation adopted prior to January 1, 
1975.
    (6) If an individual wishes to have his or her records released 
directly to a third party or to be accompanied by a third party when 
seeking access to his or her records, reasonable proof of authorization 
must be obtained. The individual may be required to furnish a

[[Page 25]]

signed access authorization with a notarized signature or other proof of 
authenticity (i.e. telephonic confirmation) before granting the third 
party access.
    (d) Individual access to medical records. (1) An individual must be 
given access to his or her medical and psychological records unless a 
judgment is made that access to such records could have an adverse 
effect on the mental or physical health of the individual. This 
determination normally should be made in consultation with a medical 
doctor. Additional guidance is provided in DOD 5400.11-R, Department of 
Defense Privacy Program. In this instance, the individual will be asked 
to provide the name of a personal health care provider, and the records 
will be provided to that health care provider, along with an explanation 
of why access without medical supervision could be harmful to the 
individual.
    (2) Information that may be harmful to the record subject should not 
be released to a designated individual unless the designee is qualified 
to make psychiatric or medical determinations.
    (3) DA activities may offer the services of a military physician, 
other than the one who provided the treatment.
    (4) Do not require the named health care provider to request the 
records for the individual.
    (5) The agency's decision to furnish the records to a medical 
designee and not directly to the individual is not considered a denial 
for reporting purposes under the Act and cannot be appealed.
    (6) However, no matter what the special procedures are, DA has a 
statutory obligation to ensure that access is provided the individual.
    (7) Regardless of age, all DA military personnel and all married 
persons are considered adults. The parents of these individuals do not 
have access to their medical records without written consent of the 
individual.
    (8) DOD 6025.18-R, DOD Health Information Privacy Regulation, issued 
pursuant to the Health Insurance Portability and Accountability Act 
(HIPAA) of 1996, has placed additional procedural requirements on the 
uses and disclosure of individually identifiable health information 
beyond those found in the Privacy Act of 1974 and this part. In order to 
be in compliance with HIPAA, the additional guidelines and procedures 
will be reviewed before release of an individual's identifiable health 
information.
    (e) Personal notes. (1) The Privacy Act does not apply to personal 
notes of individuals used as memory aids. These documents are not 
Privacy Act records and are not subject to this part.
    (2) The five conditions for documents to be considered personal 
notes are as follows--
    (i) Maintained and discarded solely at the discretion of the author;
    (ii) Created only for the author's personal convenience and the 
notes are restricted to that of memory aids;
    (iii) Not the result of official direction or encouragement, whether 
oral or written;
    (iv) Not shown to others for any reason; and
    (v) Not filed in agency files.
    (3) Any disclosure from personal notes, either intentional or 
through carelessness, removes the information from the category of 
memory aids and the personal notes then become subject to provisions of 
the Act.
    (f) Denial or limitation of individual's right to access. (1) Even 
if the information is filed and retrieved by an individual's name or 
personal identifier, his or her right to access may be denied if--
    (i) The records were compiled in reasonable anticipation of a civil 
action or proceeding including any action where DA expects judicial or 
administrative adjudicatory proceedings. The term ``civil action or 
proceeding'' includes quasi-judicial, pre-trial judicial, and 
administrative proceedings, as well as formal litigation;
    (ii) The information is about a third party and does not pertain to 
the requester. A third party's SSN and home address will be withheld. 
However, information about the relationship between the individual and 
the third party would normally be disclosed as it pertains to the 
individual;
    (iii) The records are in a system of records that has been properly 
exempted by the Secretary of the Army from the access provisions of this 
part and the information is exempt from release

[[Page 26]]

under a provision of the Freedom of Information Act (See appendix C of 
this part for a list of applicable Privacy Act exemptions, exceptions, 
and ``Blanket'' routine uses);
    (iv) The records contain properly classified information that has 
been exempted from the access provision of this part;
    (v) The records are not described well enough to enable them to be 
located with a reasonable amount of effort on the part of an employee 
familiar with the file. Requesters should reasonably describe the 
records they are requesting. They do not have to designate a Privacy Act 
system of records notice identification number, but they should at least 
identify a type of record or functional area. For requests that ask for 
``all records about me,'' DA personnel should ask the requester for more 
information to narrow the scope of his or her request; and
    (vi) Access is sought by an individual who fails or refuses to 
comply with Privacy Act established procedural requirements, included 
refusing to pay fees.
    (2) Requesters will not use government equipment, supplies, 
stationery, postage, telephones, or official mail channels for making 
Privacy Act requests. System managers will process such requests but 
inform requesters that using government resources to make Privacy Act 
requests is not authorized.
    (3) When a request for information contained in a Privacy Act system 
of records is denied in whole or in part, the Denial Authority or 
designee shall inform the requester in writing and explain why the 
request for access has been refused.
    (4) A request for access, notification, or amendment of a record 
shall be acknowledged in writing within 10 working days of receipt by 
the proper system manager or record custodian.
    (g) Relationship between the Privacy Act and the Freedom of 
Information Act. (1) Not all requesters are knowledgeable of the 
appropriate statutory authority to cite when requesting information. In 
some instances, they may cite neither the PA nor the Freedom of 
Information Act in their request. In some instances they may cite one 
Act but not the other. The Freedom of Information Act and the PA works 
together to ensure that requesters receive the greatest amount of 
information possible.
    (2) Do not deny the individual access to his or her records simply 
because he or she failed to cite the appropriate statute or regulation.
    (3) If the records are required to be released under the Freedom of 
Information Act, the PA will never block disclosure to requester. If the 
PA allows the DA activity to deny access to an individual, the Freedom 
of Information Act must still be applied, and the information released 
if required by the Freedom of Information Act.
    (4) Unlike the Freedom of Information Act, the Privacy Act applies 
only to U.S. citizens and aliens lawfully admitted for permanent 
residence.
    (5) Requesters who seek records about themselves contained in a 
Privacy Act system of records (1st party requesters) and who cite or 
imply only the Privacy Act, will have their request processed under the 
provisions of both the PA and the Freedom of Information Act. If the 
information requested is not contained in a Privacy Act system of 
records or is not about the requester, the individual's request will be 
processed under the provisions of the Freedom of Information Act only, 
and the Freedom of Information Act processing requirements/time lines 
will apply.
    (6) Third party information. (i) Third party information contained 
in a Privacy Act system of records that does not pertain to the 
requester, such as SSN, home addresses, and other purely personal 
information that is not about the requester, will be processed under the 
provisions of Freedom of Information Act only. Third party information 
that is not about the requester is not subject to the Privacy Act's 
first party access provision.
    (ii) Information about the relationship between the first party 
requester and a third party is normally disclosed as pertaining to the 
first party requester. Consult your servicing Staff Judge Advocate if 
there is a question about the release of third party information to a 
first party requester.

[[Page 27]]

    (7) If an individual requests information about them contained in a 
Privacy Act system of records, the individual may be denied the 
information only if the information is exempt under both the PA and the 
Freedom of Information Act. Both PA and Freedom of Information Act 
exemptions will be cited in the denial letter and appeals will be 
processed in accordance with both Acts.
    (8) Each time a first party requester cites or implies the PA, 
perform this analysis:
    (i) Is the request from a United States living citizen or an alien 
lawfully admitted for permanent residence?
    (ii) Is the individual requesting an agency record?
    (iii) Are the records within a PA system of records that are filed 
and retrieved by an individual's name or other personal identifier? (If 
the answer is ``yes'' to all of these questions, then the records should 
be processed under the ``Privacy Act'') and
    (iv) Does the information requested pertain exclusively to the 
requester?
    (A) If yes, no further consideration of Freedom of Information Act 
exemptions required. Release all information unless a PA exemption 
authorizes withholding.
    (B) If no, process the information that is not about the requester 
under the Freedom of Information Act and withhold only if a proper 
Freedom of Information Act exemption applies.
    (h) Functional requests. If an individual asks for his or her 
records and does not cite or reasonably imply either the Privacy Act or 
the Freedom of Information Act, and another prescribing directive or 
regulation authorizes the release, the records should be released under 
that other directive or regulation and not the PA or the FOIA. Examples 
of functional requests are military members asking to see their Official 
Military Personnel Records or civilian employees asking to see their 
Official Personnel Folder.
    (i) Procedures for denying or limiting an individual's right to 
access or amendment and the role of the Denial Authority. (1) The only 
officials authorized to deny a request for records or a request to amend 
records in a PA system of records pertaining to the requesting 
individual, are the appropriate Denial Authorities, their designees, or 
the Secretary of the Army who will be acting through the General 
Counsel.
    (2) Denial Authorities are authorized to deny requests, either in 
whole or in part, for notification, access and amendment of Privacy Act 
records contained in their respective areas of responsibility.
    (i) The Denial Authority may delegate all or part of their authority 
to a division chief under his supervision within the Agency in the grade 
of 0-5/GS-14 or higher. All delegations must be in writing.
    (ii) The Denial Authority will send the names, office names, and 
telephones numbers of their delegates to the DA Freedom of Information 
and Privacy Office.
    (iii) If a Denial Authority delegate denies access or amendment, the 
delegate must clearly state that he or she is acting on behalf of the 
Denial Authority, who must be identified by name and position in the 
written response to the requester. Denial Authority designation will not 
delay processing privacy requests/actions.
    (iv) The official Denial Authorities are for records under their 
authority (See appendix B of this part). The individuals designated as 
Denial Authorities under this part are the same individuals designated 
as Initial Denial Authorities under AR 25-55, the Department of the Army 
Freedom of Information Act Program. However, delegation of Denial 
Authority pursuant to this part does not automatically encompass 
delegation of Initial Denial Authority under AR 25-55. Initial Denial 
Authority must be expressly delegated pursuant to AR 25-55 for an 
individual to take action on behalf of an Initial Denial Authority under 
AR 25-55.
    (3) The custodian of the record will acknowledge requests for access 
made under the provisions of the Privacy Act within 10 working days of 
receipt.
    (4) Requests for information recommended for denial will be 
forwarded to the appropriate Denial Authority, along with a copy of the 
records and justification for withholding the record. At the same time, 
notify the requester of the referral to the Denial

[[Page 28]]

Authority for action. All documents or portions thereof determined to be 
releasable to the requester will be released to the requester before 
forwarding the case to the Denial Authority.
    (5) Within 30 working days, the Denial Authority will provide the 
following notification to the requester in writing if the decision is to 
deny the requester access to the information.
    (6) Included in the notification will be:
    (i) Denying Official's name, position title, and business address;
    (ii) Date of the denial;
    (iii) The specific reason for the denial, citing the appropriate 
subsections of the Privacy Act, the Freedom of Information Act, AR 25-
55, The Department of the Army Freedom of Information Act Program and 
this part; and
    (iv) The individual's right to administratively appeal the denial 
within 60 calendar days of the mailing date of the notice, through the 
Denial Authority, to the Office of the General Counsel, Secretary of the 
Army, 104 Army Pentagon, Washington, DC 20310-0104.
    (7) The appeal must be in writing and the requester should provide a 
copy of the denial letter and a statement of their reasons for seeking 
review.
    (8) For denials made by the DA when the record is maintained in a 
Government-wide system of records, an individual's request for further 
review must be addressed to each of the appropriate government Privacy 
Act offices listed in the Privacy Act system of records notices. For a 
current listing of Government-wide Privacy Act system of records notices 
see the Defense Privacy Office's Web site http://www.defenselink.mil/
privacy or DA PAM 25-51.
    (j) No records determinations. (1) Since a no record response may be 
considered an ``adverse'' determination, the Denial Authority must make 
the final determination that no records exist. The originating agency 
shall notify the requester that an initial determination has been made 
that there are no responsive records, however the final determination 
will be made by the Denial Authority. A no records certificate must 
accompany a no records determination that is forwarded to the Denial 
Authority.
    (2) The Denial Authority must provide the requester with appeal 
rights.
    (k) Referral of requests. (1) A request received by a DA activity 
having no records responsive to a request shall be referred to another 
DOD Component or DA activity, if the other Component or activity 
confirms that they have the requested records, or verifies that they are 
the proper custodian for that type of record. The requester will be 
notified of the referral. In cases where the DA activity receiving the 
request has reason to believe that the existence or nonexistence of the 
record may in itself be classified, that activity will consult the 
Component or activity having cognizance over the records in question 
before referring the request. If the Component or activity that is 
consulted determines that the existence or nonexistence of the records 
is in itself classified, the requester shall be so notified by the DA 
activity originally receiving the request that it can neither confirm 
nor deny the existence of the record, and no referral shall take place.
    (2) A DA activity shall refer a Privacy Act request for a classified 
record that it holds to another DOD Component, DA activity, or agency 
outside the Department of Defense, if the record originated in the other 
DOD Component, DA activity, or outside agency, or if the classification 
is derivative. The referring DA activity will provide the records and a 
release recommendation with the referral action.
    (3) Any DA activity receiving a request that has been misaddressed 
will refer the request to the proper address and advise the requester.
    (4) Within DA, referrals will be made directly to offices having 
custody of the requested records (unless the Denial Authority is the 
custodian of the requested records). If the office receiving the Privacy 
Act request does not know where the requested records are located, the 
office will contact the DA FOIA/P Office, to determine the appropriate 
office for referral.
    (5) The requester will be informed of the referral whenever records 
or a portion of records are, after prior consultation, referred to 
another activity for a release determination and direct

[[Page 29]]

response. Additionally, the DA activity referral letter will accomplish 
the following--
    (i) Fully describe the Privacy Act system of records from which the 
document was retrieved; and
    (ii) Indicate whether the referring activity claims any exemptions 
in the Privacy Act system of records notice.
    (6) Within the DA, an activity will refer a Privacy Act request for 
records that it holds but was originated by another activity, to the 
originating activity for direct response. An activity will not, in any 
case, release or deny such records without prior consultation with the 
originating activity. The requester will be notified of such referral.
    (7) A DA activity may refer a Privacy Act request for records that 
originated in an agency outside of DOD, or that is based on information 
obtained from an agency outside the DOD, to that agency for direct 
response to the requester, only if that agency is subject to the Privacy 
Act. Otherwise, the DA activity must respond to the request.
    (8) DA activities will not honor any Privacy Act requests 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 in writing. Such requests will be 
referred to the agency that provided the records.
    (9) A DA activity will 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. DA documents in which the 
NSC or White House have a concurrent reviewing interest will be 
forwarded to the Department of Defense, Office of Freedom of Information 
and Security Review, which will coordinate with the NSC or White House, 
and return the documents to the originating DA activity after NSC or 
White House review. NSC or White House documents discovered in DA 
activity files which are responsive to a Privacy Act request will be 
forwarded to DOD for coordination and return with a release 
determination.
    (10) To the extent referrals are consistent with the policies 
expressed above; referrals between offices of the same DA activity are 
authorized.
    (l) Reproduction fees. (1) Use fees only to recoup direct 
reproduction costs associated with granting access.
    (2) DA activities may use discretion in their decision to charge for 
the first copy of records provided to an individual to whom the records 
pertain. Thereafter, fees will be computed pursuant to the fee schedule 
set forth in AR 25-55, including the fee waiver provisions.
    (3) Checks or money orders for fees should be made payable to the 
Treasurer of the United States and will be deposited in the 
miscellaneous receipts of the treasury account maintained at the 
activity's finance office.
    (4) Reproduction costs shall only include the direct costs of 
reproduction and shall not include costs of--
    (i) Time or effort devoted to searching for or reviewing the records 
by personnel;
    (ii) Fees not associated with the actual cost of reproduction;
    (iii) Producing a copy when it must be provided to the individual 
without cost under another regulation, directive, or law;
    (iv) Normal postage;
    (v) Transportation of records or personnel; or
    (vi) Producing a copy when the individual has requested only to 
review the records and has not requested a copy, and the only means of 
allowing review is to make a copy (e.g., the records are stored in a 
computer and a copy must be printed to provide individual access, or the 
activity does not wish to surrender temporarily the original records for 
the individual to review).
    (m) Privacy Act case files. (1) Whenever an individual submits a 
Privacy Act request, a case file will be established. This Privacy Act 
case file is a specific type of file that is governed by a specific 
Privacy Act system of records notice. In no instance will the 
individual's Privacy Act request and corresponding Army actions be 
included in the individual's military personnel file or other military 
filing systems, such as adverse action files or general legal files, and 
in no instance will the Privacy Act case file be used

[[Page 30]]

to make an adverse determination about the individual.
    (2) The case file will be comprised of the request for access/
amendment, grants, refusals, coordination action(s), and all related 
papers.



Sec. 505.6  Amendment of records.

    (a) Amended records. (1) Individuals are encouraged to periodically 
review the information maintained about them in Privacy Act systems of 
records and to familiarize themselves with the amendment procedures 
established by this part.
    (2) An individual may request to amend records that are retrieved by 
his or her name or personal identifier from a system of records unless 
the system has been exempted from the amendment provisions of the Act. 
The standard for amendment is that the records are inaccurate as a 
matter of fact rather than judgment, irrelevant, untimely, or 
incomplete. The burden of proof is on the requester.
    (3) The system manager or custodian must review Privacy Act records 
for accuracy, relevance, timeliness, and completeness.
    (4) Amendment procedures are not intended to permit individuals to 
challenge events in records that have actually occurred. Amendment 
procedures only allow individuals to amend those items that are 
factually inaccurate and not matters of official judgment (e.g., 
performance ratings, promotion potential, and job performance 
appraisals). In addition, an individual is not permitted to amend 
records for events that have been the subject of judicial or quasi-
judicial actions/proceedings.
    (b) Proper amendment requests. (1) Amendment requests, except for 
routine administrative changes, will be in writing.
    (2) When acting on behalf of a first party requester, an individual 
must provide written documentation of the first party requester's 
consent to allow the individual to view his or her records.
    (3) Amendment is appropriate if it can be shown that--
    (i) Circumstances leading up to the recorded event were found to be 
inaccurately reflected in the document;
    (ii) The record is not identical to the individual's copy; or
    (iii) The document was not constructed in accordance with the 
applicable recordkeeping requirements prescribed in AR 25-400-2, The 
Army Records Information Management System (ARIMS).
    (4) Under the amendment provisions, an individual may not challenge 
the merits of an adverse determination.
    (5) U.S. Army Criminal Investigation Command (USACIDC) reports of 
investigations (PA system of records notice A0195-2a USACIDC, Source 
Register; A0195-2b USACIDC, Criminal Investigation and Crime Laboratory 
Files) have been exempted from the amendment provisions of the Privacy 
Act. Requests to amend these reports will be considered under AR 195-2. 
Actions taken by the Commander of U.S. Army Criminal Investigation 
Command will constitute final action on behalf of the Secretary of the 
Army under that regulation.
    (6) Records placed in the National Archives are exempt 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 that are under the legal control of the originating agency; 
for example, an agency's current operating files or records stored at a 
Federal Records Center.
    (7) Inspector General investigative files and action request/
complaint files (records in system notice A0021-1 SAIG, Inspector 
General Records) have been exempted from the amendment provisions of the 
Privacy Act. Requests to amend these reports will be considered under AR 
20-1 by the Inspector General. Action by the Inspector General will 
constitute final action on behalf of the Secretary of the Army under 
that regulation.
    (8) Other records that are exempt from the amendment provisions of 
the Privacy Act are listed in the applicable PA system of records 
notices.
    (c) Amendment procedures. (1) Requests to amend records should be 
addressed to the custodian or system manager of the records. The request 
must reasonably describe the records to be amended and the changes 
sought

[[Page 31]]

(e.g., deletion, addition, or amendment). The burden of proof is on the 
requester. The system manager or records custodian will provide the 
individual with a written acknowledgment of the request within 10 
working days and will make a final response within 30 working days of 
the date the request was received. The acknowledgment must clearly 
identify the request and inform the individual that final action will be 
forthcoming within 30 working days.
    (2) Records for which amendment is sought must be reviewed by the 
proper system manager or custodian for accuracy, relevance, timeliness, 
and completeness.
    (3) If the amendment is appropriate, the system manager or custodian 
will physically amend the records accordingly. The requester will be 
notified of such action.
    (4) If the amendment is not warranted, the request and all relevant 
documents, including reasons for not amending, will be forwarded to the 
proper Denial Authority within 10 working days to ensure that the 30 day 
time limit for the final response is met. In addition, the requester 
will be notified of the referral.
    (5) Based on the documentation provided, the Denial Authority will 
either amend the records and notify the requester and the custodian of 
the records of all actions taken, or deny the request. If the records 
are amended, those who have received the records in the past will 
receive notice of the amendment.
    (6) If the Denial Authority determines that the amendment is not 
warranted, he or she will provide the requester and the custodian of the 
records reason(s) for not amending. In addition, the Denial Authority 
will send the requester an explanation regarding his or her right to 
seek further review by the DA Privacy Act Review Board, through the 
Denial Authority, and the right to file a concise ``Statement of 
Disagreement'' to append to the individual's records.
    (i) On receipt of a request for further review by the Privacy Act 
Review Board, the Denial Authority will append any additional records or 
background information that substantiates the refusal or renders the 
case complete;
    (ii) Within 5 working days of receipt, forward the appeal to the DA 
Privacy Act Review Board; and
    (iii) Append the servicing Judge Advocate's legal review, including 
a determination that the Privacy Act Review Board packet is complete.
    (d) DA Privacy Act Review Board. (1) The DA Privacy Act Review Board 
acts on behalf of the Secretary of the Army in deciding appeals of the 
appropriate Denial Authority's refusal to amend records.
    (2) The Board will process an appeal within 30 working days of its 
receipt. The General Counsel may authorize an additional 30 days when 
unusual circumstances and good cause so warrant.
    (3) The Board membership consists of the following principal 
members, comprised of three voting and two non-voting members, or their 
delegates.
    (4) Three voting members include--
    (i) Administrative Assistant to the Secretary of the Army (AASA) who 
acts as the Chairman of the Board;
    (ii) The Judge Advocate General; and
    (iii) The Chief, DA Freedom of Information and Privacy Division, 
U.S. Army Records Management and Declassification Agency.
    (5) In addition, two non-voting members include--
    (i) The Chief Attorney, OAASA (or designee) who serves as the legal 
advisor and will be present at all Board sessions to provide legal 
advice as required; and
    (ii) Recording Secretary provided by the Office of the 
Administrative Assistant to the Secretary of the Army.
    (e) DA Privacy Act Review Board meetings. (1) The meeting of the 
Board requires the presence of all five members or their designated 
representatives. Other non-voting members with subject matter expertise 
may participate in a meeting of the Board, at the discretion of the 
Chairman.
    (2) Majority vote of the voting members is required to make a final 
determination on a request before the Board.
    (3) Board members, who have denial authority, may not vote on a 
matter upon which they took Denial Authority action. However, an 
individual who

[[Page 32]]

took Denial Authority action, or his or her representative, may serve as 
a non-voting member when the Board considers matters in the Denial 
Authority's area of functional specialization.
    (4) The Board may seek additional information, including the 
requester's official personnel file, if relevant and necessary to decide 
the appeal.
    (5) If the Board determines that an amendment is warranted (the 
record is inaccurate as a matter of fact rather than judgment, 
irrelevant, untimely, or incomplete) it will amend the record and notify 
the requester, the Denial Authority, the custodian of the record, and 
any prior recipients of the record, of the amendment.
    (6) If the Board determines that amendment is unwarranted, they 
will--
    (i) Obtain the General Counsel's concurrence in writing;
    (ii) Respond to the requester with the reasons for denial; and
    (iii) Inform the requester of the right to file a ``Statement of 
Disagreement'' with the Board's action and to seek judicial review of 
the Army's refusal to amend. A ``Statement of Disagreement'' must be 
received by the system manager within 120 days and it will be made an 
integral part of the pertinent record. Anyone who may have access to, 
use of, or need to disclose information from the record will be aware 
that the record was disputed. The disclosing authority may include a 
brief summary of the Board's reasons for not amending the disputed 
record.
    (7) It is inappropriate for the Privacy Act Review Board to consider 
any record which is exempt from the amendment provision of the Privacy 
Act.



Sec. 505.7  Disclosure of personal information to other agencies and third parties.

    (a) Disclosing records to third parties. (1) DA is prohibited from 
disclosing a record from a Privacy Act system of records to any person 
or agency without the prior written consent of the subject of the 
record, except when--
    (i) Pursuant to the twelve Privacy Act exceptions. The twelve 
exceptions to the ``no disclosure without consent'' rule are those 
exceptions which permit the release of personal information without the 
individual's/subject's consent (See appendix C of this part).
    (ii) The FOIA requires the release of the record. One of the twelve 
exceptions to Privacy Act is the FOIA Exception. If the FOIA requires 
the release of information, the information must be released. The 
Privacy Act can not prevent release to a third party if the FOIA 
requires release. However, information must not be discretionarily 
released under the FOIA if the information is subject to the Privacy 
Act's ``no disclosure without consent'' rule.
    (iii) A routine use applies. Another major exception to the ``no 
disclosure without consent'' rule is the routine use exception. The 
Privacy Act allows federal agencies to publish routine use exceptions to 
the Privacy Act. Some routine uses are Army specific, DOD specific, and 
Governmentwide. Routine uses exceptions are listed in the Privacy Act 
system of records notice(s) applicable to the Privacy Act records in 
question. The Army and other agencies' system of records notices may be 
accessed at the Defense Privacy Office's Web site http://
www.defenselink.mil/privacy.
    (2) The approved twelve exceptions to the Privacy Act ``no 
disclosure without consent'' rule are listed at appendix C of this part.
    (b) Disclosing records to other DOD components and to federal 
agencies outside the DOD. (1) The twelve Privacy Act exceptions referred 
to in appendix C of this part are available to other DOD components and 
to federal agencies outside the DOD as exceptions to the Privacy Act's 
``no disclosure without consent'' rule, with the exception of the FOIA 
exception. The FOIA is not an appropriate mechanism for providing 
information to other DOD components and to federal agencies outside the 
DOD.
    (2) A widely used exception to requests for information from local 
and state government agencies and federal agencies not within the DOD is 
the routine use exception to the Privacy Act.
    (3) The most widely used exception to requests for information from 
other DOD components is the ``intra-agency

[[Page 33]]

need to know'' exception to the Privacy Act. Officers and employees of 
the DOD who have an official need for the records in the performance of 
their official duties are entitled to Privacy Act protected information. 
Rank, position, or title alone does not authorize access to personal 
information about others. An official need for the information must 
exist before disclosure.
    (4) For the purposes of disclosure and disclosure accounting, the 
Department of Defense (DOD) is considered a single agency.
    (c) Disclosures under AR 25-55, the Freedom of Information Act 
(FOIA) Program. (1) Despite Privacy Act protections, all records must be 
disclosed if the Freedom of Information Act (FOIA) requires their 
release. The FOIA requires release unless the information is exempted by 
one or more of the nine FOIA exemptions.
    (2) Required release under the FOIA. The following are examples of 
personal information that is generally not exempt from the FOIA; 
therefore, it must be released to the public, unless covered by 
paragraphs (d)(2) and (d)(3) of this section. The following list is not 
all inclusive:
    (i) Military Personnel--
    (A) Rank, date of rank, active duty entry date, basic pay entry 
date, and gross pay (including base pay, special pay, and all allowances 
except Basic Allowance for Housing);
    (B) Present and past duty assignments, future stateside assignments;
    (C) Office/unit name, duties address and telephone number (DOD 
policy may require withholding of this information in certain 
circumstances);
    (D) Source of commission, promotion sequence number, military awards 
and decorations, and professional military education;
    (E) Duty status, at any given time;
    (F) Separation or retirement dates;
    (G) Military occupational specialty (MOS);
    (H) Active duty official attendance at technical, scientific or 
professional meetings; and
    (I) Biographies and photos of key personnel (DOD policy may require 
withholding of this information in certain circumstances).
    (ii) Federal civilian employees--
    (A) Present and past position titles, occupational series, and 
grade;
    (B) Present and past annual salary rates (including performance 
awards or bonuses, incentive awards, merit pay amount, Meritorious or 
Distinguished Executive Ranks, and allowances and differentials);
    (C) Present and past duty stations;
    (D) Office or duty telephone number (DOD policy may require 
withholding of this information in certain circumstances); and
    (E) Position descriptions, identification of job elements, and 
performance standards (but not actual performance appraisals), the 
release of which would not interfere with law enforcement programs or 
severely inhibit agency effectiveness. Performance elements and 
standards (or work expectations) may also be withheld when they are so 
intertwined with performance appraisals, the disclosure would reveal an 
individual's performance appraisal.
    (d) Personal information that requires protection. (1) The following 
are examples of information that is generally NOT releasable without the 
written consent of the subject. This list is not all inclusive--
    (i) Marital status;
    (ii) Dependents' names, sex and SSN numbers;
    (iii) Civilian educational degrees and major areas of study (unless 
the request for the information relates to the professional 
qualifications for Federal employment);
    (iv) School and year of graduation;
    (v) Home of record;
    (vi) Home address and phone;
    (vii) Age and date of birth;
    (viii) Overseas assignments (present or future);
    (ix) Overseas office or unit mailing address and duty phone of 
routinely deployable or sensitive units;
    (x) Race/ethnic origin;
    (xi) Educational level (unless the request for the information 
relates to professional qualifications for federal employment);
    (xii) Social Security Number (SSN); and
    (xiii) The information that would otherwise be protected from 
mandatory disclosure under a FOIA exemption.

[[Page 34]]

    (2) The Office of the Secretary of Defense issued a policy 
memorandum in 2001 that provided greater protection of DOD personnel in 
the aftermath of 9/11 by requiring information that personally 
identifies DOD personnel be more carefully scrutinized and limited. In 
general, the Department of Defense has specifically advised that DOD 
components are not to release lists of names, duty addresses, present or 
past position titles, grades, salaries, and performance standards of DOD 
military members and civilian employees. At the office director level or 
above, the release of information will be limited to the name, official 
title, organization, and telephone number, provided a determination is 
made that disclosure does not raise security or privacy concerns. No 
other information, including room numbers, will normally be released 
about these officials. Consistent with current policy, information on 
officials below the office director level may continue to be released if 
their positions or duties require frequent interaction with the public.
    (3) Disclosure of records pertaining to personnel of overseas, 
sensitive, or routinely deployed units shall be prohibited to the extent 
authorized by 10 U.S.C. 130b.
    (e) Release of home addresses and home telephone numbers. (1) The 
release of home addresses and home telephone numbers normally is 
prohibited. This release is normally considered a clearly ``unwarranted 
invasion'' of personal privacy and is exempt from mandatory release 
under the FOIA. However, home addresses and home telephone numbers may 
still be released if--
    (i) The individual has indicated previously in writing that he or 
she has no objection to the release;
    (ii) The source of the information to be released is a public 
document such as commercial telephone directory or other public listing;
    (iii) The release is required by Federal statute (for example, 
pursuant to federally funded state programs to locate parents who have 
defaulted on child support payments) (See 42 U.S.C. 653); or
    (iv) The releasing of information is pursuant to the routine use 
exception or the ``intra-agency need to know'' exception to the Privacy 
Act.
    (2) A request for a home address or telephone number may be referred 
to the last known address of the individual for a direct reply by the 
individual to the requester. In such cases, the requester shall be 
notified of the referral.
    (3) Do not sell or rent lists of individual names and addresses 
unless such action is specifically authorized by the appropriate 
authority.
    (f) Emergency recall rosters. (1) The release of emergency recall 
rosters normally is prohibited. Their release is normally considered a 
clearly ``unwarranted invasion'' of personal privacy and is exempt from 
mandatory release under the FOIA. Emergency recall rosters should only 
be shared with those who have an ``official need to know'' the 
information, and they should be marked ``For Official Use Only'' (See AR 
25-55).
    (2) Do not include a person's SSN on an emergency recall roster or 
their spouse's name.
    (3) Commanders and supervisors should give consideration to those 
individuals with unlisted phone numbers. Commanders and supervisors 
should consider limiting access to an unlisted number within the unit.
    (g) Social rosters. (1) Before including personal information such 
as a spouse's name, home addresses, home phone numbers, and similar 
information on social rosters or social directories, which will be 
shared with individuals, always ask for the individual's written 
consent. Without their written consent, do not include this information.
    (2) Collection of this information will require a Privacy Act 
Statement which clearly tells the individual what information is being 
solicited, the purpose, to whom the disclosure of the information is 
made, and whether collection of the information is voluntary or 
mandatory.
    (h) Disclosure of personal information on group orders. (1) Personal 
information will not be posted on group orders so that everyone on the 
orders can view it. Such a disclosure of personal information violates 
the Privacy Act and this part.

[[Page 35]]

    (2) The following are some examples of personal information that 
should not be contained in group orders. The following list is not all-
inclusive--
    (i) Complete SSN;
    (ii) Home addresses and phone numbers; or
    (iii) Date of birth.
    (i) Disclosures for established routine uses. (1) Records may be 
disclosed outside the DOD without the consent of the individual to whom 
they pertain for an established routine use.
    (2) A routine use shall--
    (i) Be compatible with and related to the purpose for which the 
record was compiled;
    (ii) Identify the persons or organizations to which the records may 
be released; and
    (iii) Have been published previously in the Federal Register.
    (3) Establish a routine use for each user of the information outside 
the Department of Defense who needs official access to the records.
    (4) Routine uses may be established, discontinued, or amended 
without the consent of the individuals involved. However, new or changed 
routine uses must be published in the Federal Register at least 30 days 
before actually disclosing any records.
    (5) In addition to the routine uses listed in the applicable systems 
of records notices, ``Blanket Routine Uses'' for all DOD maintained 
systems of records have been established. These ``Blanket Routine Uses'' 
are applicable to every record system maintained within the DOD unless 
specifically stated otherwise within a particular record system. The 
``Blanket Routine Uses'' are listed at appendix C of this part.
    (j) Disclosure accounting. (1) System managers must keep an accurate 
record of all disclosures made from DA Privacy Act system of records, 
including those made with the consent of the individual, except when 
records are--
    (i) Disclosed to DOD officials who have a ``need to know'' the 
information to perform official government duties; or
    (ii) Required to be disclosed under the Freedom of Information Act.
    (2) The purpose for the accounting of disclosure is to--
    (i) Enable an individual to ascertain those persons or agencies that 
have received information about them;
    (ii) Enable the DA to notify past recipients of subsequent 
amendments or ``Statements of Dispute'' concerning the record; and
    (iii) Provide a record of DA compliance with the Privacy Act of 
1974, if necessary.
    (3) Since the characteristics of records maintained within DA vary 
widely, no uniform method for keeping the disclosure accounting is 
prescribed.
    (4) Essential elements to include in each disclosure accounting 
report are--
    (i) The name, position title, and address of the person making the 
disclosure;
    (ii) Description of the record disclosed;
    (iii) The date, method, and purpose of the disclosure; and
    (iv) The name, position title, and address of the person or agency 
to which the disclosure was made.
    (5) The record subject has the right of access to the disclosure 
accounting except when--
    (i) The disclosure was made for law enforcement purposes under 5 
U.S.C. 552a(b)(7); or
    (ii) The disclosure was made from a system of records for which an 
exemption from 5 U.S.C. 552a(c)(3) has been claimed.
    (6) There are no approved filing procedures for the disclosure of 
accounting records; however, system managers must be able to retrieve 
upon request. With this said, keep disclosure accountings for 5 years 
after the disclosure, or for the life of the record, whichever is 
longer.
    (7) When an individual requests such an accounting, the system 
manager or designee will respond within 20 working days.



Sec. 505.8  Training requirements.

    (a) Training. (1) The Privacy Act requires all heads of Army Staff 
agencies, field operating agencies, direct reporting units, Major 
Commands, subordinate commands, and installations to establish rules of 
conduct for all personnel involved in the design, development, 
operation, and maintenance of any Privacy Act system of records and

[[Page 36]]

to train the appropriate personnel with respect to the privacy rules 
including the penalties for non-compliance (See 5 U.S.C. 552a(e)(9)).
    (2) To meet the training requirements, three general levels of 
training must be established. They are--
    (i) Orientation. Training that provides basic understanding of this 
part as it applies to the individual's job performance. This training 
will be provided to personnel, as appropriate, and should be a 
prerequisite to all other levels of training;
    (ii) Specialized training. Training that provides information as to 
the application of specific provisions of this part to specialized areas 
of job performance. Personnel of particular concern include, but are not 
limited to, personnel specialists, finance officers, DOD personnel who 
may be expected to deal with the news media or the public, special 
investigators, paperwork managers, individuals working with medical and 
security records, records managers, computer systems development 
personnel, computer systems operations personnel, statisticians dealing 
with personal data and program evaluations, contractors and anyone 
responsible for implementing or carrying out functions under this part. 
Specialized training should be provided on a periodic basis; and
    (iii) Managerial training. Training designed to identify for 
responsible managers (such as senior system managers, Denial 
Authorities, and functional managers described in this section) issues 
that they should consider when making management decisions affected by 
the Privacy Act Program.
    (b) Training tools. Helpful resources include--
    (1) Privacy Act training slides for Major Commands and Privacy Act 
Officers: Contact the DA FOIA/P Office, or slides can be accessed at the 
Web site https://www.rmda.belvoir.army.mil/rmdaxml/rmda/FPHomePage.asp.
    (2) The ``DOJ Freedom of Information Act Guide and Privacy Act 
Overview'': The U.S. Department of Justice, Executive Office for United 
States Attorneys, Office of Legal Education, 600 E. Street, NW., Room 
7600, Washington, DC 20530, or training programs can be accessed at the 
Web site www.usdoj.gov/usao/eousa/ole.html.



Sec. 505.9  Reporting requirements.

    The Department of the Army will submit reports, consistent with the 
requirements of DOD 5400.11-R, OMB Circular A-130, and as otherwise 
directed by the Defense Privacy Office. Contact the DA FOIA/P Office for 
further guidance regarding reporting requirements.



Sec. 505.10  Use and establishment of exemptions.

    (a) Three types of exemptions. (1) There are three types of 
exemptions applicable to an individual's right to access permitted by 
the Privacy Act. They are the Special, General, and Specific exemptions.
    (2) Special exemption (d)(5)--Relieves systems of records from the 
access provision of the Privacy Act only. This exemption applies to 
information compiled in reasonable anticipation of a civil action or 
proceeding.
    (3) General exemption (j)(2)--Relieves systems of records from most 
requirements of the Act. Only Army activities actually engaged in the 
enforcement of criminal laws as their primary function may claim this 
exemption.
    (4) Specific exemptions (k)(1)-(k)(7)-Relieves systems of records 
from only a few provisions of the Act.
    (5) To find out if an exemption is available for a particular 
record, refer to the applicable system of records notices. System of 
records notices will state which exemptions apply to a particular type 
of record. System of records notices that are applicable to the Army are 
contained in DA Pam 25-51 (available at the Army Publishing Directorate 
Web site http://www.usapa.army.mil/), the Defense Privacy Office's Web 
site http://www.defenselink.mil/privacy/), or in this section). Some of 
the system of records notices apply only to the Army and the DOD and 
some notices are applicable government-wide.
    (6) Descriptions of current exemptions are listed in detail at 
appendix C of this part.
    (b) Exemption procedures. (1) For the General and Specific 
exemptions to be applicable to the Army, the Secretary

[[Page 37]]

of the Army must promulgate exemption rules to implement them. This 
requirement is not applicable to the one Special exemption which is 
self-executing. Once an exemption is made applicable to the Army through 
the exemption rules, it will be listed in the applicable system of 
records notices to give notice of which specific types of records the 
exemption applies to. When a system manager seeks to have an exemption 
applied to a certain Privacy Act system of records that is not currently 
provided for by an existing system of records notice, the following 
information will be furnished to the DA FOIA/P Office--
    (i) Applicable system of records notice;
    (ii) Exemption sought; and
    (iii) Justification.
    (2) After appropriate staffing and approval by the Secretary of the 
Army and the Defense Privacy Office, it will be published in the Federal 
Register as a proposed rule, followed by a final rule 60 days later. No 
exemption may be invoked until these steps have been completed.



Sec. 505.11  Federal Register publishing requirements.

    (a) The Federal Register. There are three types of documents 
relating to the Privacy Act Program that must be published in the 
Federal Register. They are the DA Privacy Program policy and procedures 
(AR 340-21), the DA exemption rules, and Privacy Act system of records 
notices.
    (b) Rulemaking procedures. (1) DA Privacy Program procedures and 
exemption rules are subject to the formal rulemaking process.
    (2) Privacy Act system of records notices are not subject to formal 
rulemaking and are published in the Federal Register as Notices, not 
Rules.
    (3) The Privacy Program procedures and exemption rules are 
incorporated into the Code of Federal Regulations (CFR). Privacy Act 
system of records notices are not published in the CFR.



Sec. 505.12  Privacy Act enforcement actions.

    (a) Judicial sanctions. The Act has both civil remedies and criminal 
penalties for violations of its provisions.
    (1) Civil remedies. The DA is subject to civil remedies for 
violations of the Privacy Act. In addition to specific remedial actions, 
5 U.S.C. 552a(g) may provide for the payment of damages, court costs, 
and attorney's fees.
    (2) Criminal penalties. A DA official or employee may be found 
guilty of a misdemeanor and fined not more than $5,000 for willfully--
    (i) Disclosing individually identifiable personal information to one 
not entitled to the information;
    (ii) Requesting or obtaining information from another's record under 
false pretenses; or
    (iii) Maintaining a system of records without first meeting the 
public notice requirements of the Act.
    (b) Litigation Status Sheet. (1) When a complaint citing the Privacy 
Act is filed in a U.S. District Court against the Department of the 
Army, an Army Component, a DA Official, or any Army employee, the 
responsible system manager will promptly notify the Army Litigation 
Division, 901 North Stuart Street, Arlington, VA 22203-1837.
    (2) The Litigation Status Sheet at appendix E of this part provides 
a standard format for this notification. At a minimum, the initial 
notification will have items (a) through (f) provided.
    (3) A revised Litigation Status Sheet must be provided at each stage 
of the litigation.
    (4) When a court renders a formal opinion or judgment, copies must 
be provided to the Defense Privacy Office by the Army Litigation 
Division.
    (c) Administrative remedies--Privacy Act complaints. (1) The 
installation level Privacy Act Officer is responsible for processing 
Privacy Act complaints or allegations of Privacy Act violations. 
Guidance should be sought from the local Staff Judge Advocate and 
coordination made with the system manager to assist in the resolution of 
Privacy Act complaints. The local Privacy Act officer is responsible 
for--
    (i) Reviewing allegations of Privacy Act violations and the evidence 
provided by the complainants;
    (ii) Making an initial assessment as to the validity of the 
complaint, and taking appropriate corrective action;

[[Page 38]]

    (iii) Coordinating with the local Staff Judge Advocate to determine 
whether a more formal investigation such as a commander's inquiry or an 
AR 15-6 investigation is appropriate; and
    (iv) Ensuring the decision at the local level from either the 
Privacy Act Officer or other individual who directed a more formal 
investigation is provided to the complainant in writing.
    (2) The decision at the local level may be appealed to the next 
higher command level Privacy Act Officer.
    (3) A legal review from the next higher command level Privacy Act 
Officer's servicing Staff Judge Advocate is required prior to action on 
the appeal.



Sec. 505.13  Computer Matching Agreement Program.

    (a) General provisions. (1) Pursuant to the Privacy Act and this 
part, DA records may be subject to computer matching, i.e., the computer 
comparison of automated systems of records.
    (2) There are two specific kinds of Matching Programs covered by the 
Privacy Act--
    (i) Matches using records from Federal personnel or payroll systems 
of records; and
    (ii) Matches involving Federal benefit programs to accomplish one or 
more of the following purposes--
    (A) To determine eligibility for a Federal benefit;
    (B) To comply with benefit program requirements; and
    (C) To effect recovery of improper payments or delinquent debts from 
current or former beneficiaries.
    (3) The comparison of records must be computerized. Manual 
comparisons are not covered.
    (4) Any activity that expects to participate in a Computer Matching 
Program must contact the DA FOIA/P Office immediately.
    (5) In all cases, Computer Matching Agreements are processed by the 
Defense Privacy Office and approved by the Defense Data Integrity Board. 
Agreements will be conducted in accordance with the requirements of 5 
U.S.C. 552a, and OMB Circular A-130.
    (b) Other matching. Several types of computer matching are exempt 
from the restrictions of the Act such as matches used for statistics, 
pilot programs, law enforcement, tax administration, routine 
administration, background checks, and foreign counterintelligence. The 
DA FOIA/P Office should be consulted if there is a question as to 
whether the Act governs a specific type of computer matching.



Sec. 505.14  Recordkeeping requirements under the Privacy Act.

    (a) AR 25-400-2, The Army Records Information Management System 
(ARIMS). To maintain privacy records are required by the Army Records 
Information Management System (ARIMS) to provide adequate and proper 
documentation of the conduct of Army business so that the rights and 
interests of individuals and the Federal Government are protected.
    (b) A full description of the records prescribed by this part and 
their disposition/retention requirements are found on the ARIMS Web site 
at https://www.arims.army.mil.



                 Sec. Appendix A to Part 505--References

    (a) The Privacy Act of 1974 (5 U.S.C. 552a, as amended).
    (b) OMB Circular No. A-130, Management of Federal Information 
Resources.
    (c) AR 25-55, The Department of the Army Freedom of Information 
Program.
    (d) DA PAM 25-51, The Army Privacy Program--System of Records 
Notices and Exemption Rules.
    (e) DOD Directive 5400.11, Department of Defense Privacy Program.
    (f) DOD 5400.11-R, Department of Defense Privacy Program.
    (g) AR 25-2, Information Assurance
    (h) AR 25-400-2, The Army Records Information Management System 
(ARIMS).
    (i) AR 27-10, Military Justice.
    (j) AR 40-66, Medical Record Administration and Health Care 
Documentation.
    (k) AR 60-20 and AFR 147-14, Army and Air Force Exchange Service 
Operating Policies.
    (l) AR 190-45, Law Enforcement Reporting.
    (m) AR 195-2, Criminal Investigation Activities.
    (n) AR 380-5, Department of Army Information Security Program.
    (o) DOD Directive 5400-7, DOD Freedom of Information Act (FOIA) 
Program.
    (q) DOD 5400.7-R, DOD Freedom of Information Program.
    (r) DOD 6025.18-R, DOD Health Information Privacy Regulation 
(HIPAA).
    (s) U.S. Department of Justice, Freedom of Information Act Guide and 
Privacy Act Overview.

[[Page 39]]

    (t) Office of Secretary of Defense memorandum, dated July 15, 2005, 
subject: Notifying Individuals when Personal Information is Lost, 
Stolen, or Compromised located at http://www.army.mil/ciog6/referencs/
policy/dos/OSDprivateinfo.pdf.



Sec. Appendix B to Part 505--Denial Authorities for Records Under Their 

      Authority (Formerly Access and Amendment Refusal Authorities)

    (a) 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, as well as requests requiring the personal 
attention of the Secretary of the Army. This also includes civilian 
Equal Employment Opportunity (EEO) actions. (See DCS, G-1 for Military 
Equal Opportunity (EO) actions.) The Administrative Assistant to the 
Secretary of the Army has delegated this authority to the Chief 
Attorney, OAASA (See DCS, G1 for Military Equal Opportunity (EO) 
actions).
    (b) The Assistant Secretary of the Army (Financial Management and 
Comptroller) is authorized to act on requests for finance and accounting 
records. Requests for CONUS finance and accounting records should be 
referred to the Defense Finance and Accounting Service (DFAS). The Chief 
Attorney, OAASA, acts on requests for non-finance and accounting records 
of the Assistant Secretary of the Army (Financial Management and 
Comptroller).
    (c) The Assistant Secretary of the Army (Acquisition, Logistics, & 
Technology) 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. The Chief Attorney, OAASA, acts 
on requests for non-procurement records of the Assistant Secretary of 
the Army (Acquisition, Logistics and Technology).
    (d) The Deputy Assistant Secretary of the Army (Civilian Personnel 
Policy)/Director of Civilian Personnel, Office of the Assistant 
Secretary of the Army (Manpower and Reserve Affairs) is authorized to 
act on requests for civilian personnel records, personnel administration 
and other civilian personnel matters, except for EEO (civilian) matters 
which will be acted on by the Administrative Assistant to the Secretary 
of the Army. The Deputy Assistant Secretary of the Army (Civilian 
Personnel Policy)/Director of Civilian Personnel has delegated this 
authority to the Chief, Policy and Program Development Division (Note: 
Requests from former civilian employees to amend a record in an Office 
of Personnel Management system of records, such as the Official 
Personnel Folder, should be sent to the Office of Personnel Management, 
Assistant Director for Workforce Information, Compliance, and 
Investigations Group: 1900 E. Street, NW., Washington, DC 20415-0001).
    (e) The Chief Information Officer G-6 is authorized to act on 
requests for records pertaining to Army Information Technology, command, 
control communications and computer systems and the Information 
Resources Management Program (automation, telecommunications, visual 
information, records management, publications and printing).
    (f) The Inspector General is authorized to act on requests for all 
Inspector General Records.
    (g) 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.
    (h) The Director of the Army Staff is authorized to act on requests 
for all records of the Chief of Staff and its Field Operating Agencies. 
The Director of the Army Staff has delegated this authority to the Chief 
Attorney and Legal Services Directorate, U.S. Army Resources & Programs 
Agency (See The Judge Advocate General for the General Officer 
Management Office actions). The Chief Attorney and Legal Services 
Director, U.S. Army Resources & Programs Agency acts on requests for 
records of the Chief of Staff and its Field Operating Agencies (See The 
Judge Advocate General for the General Officer Management Office 
actions).
    (i) The Deputy Chief of Staff, G-3/5/7 is authorized to act on 
requests for records relating to International Affairs policy, planning, 
integration and assessments, strategy formulation, force development, 
individual and unit training policy, strategic and tactical command and 
control systems, nuclear and chemical matters, use of DA forces.
    (j) The Deputy Chief of Staff, G-8 is authorized to act on requests 
for records relating to programming, material integration and externally 
directed reviews.
    (k) The Deputy Chief of Staff, G-1 is authorized to act on the 
following records: Personnel board records, Equal Opportunity (military) 
and sexual harassment, health promotions, physical fitness and well-
being, command and leadership policy records, HIV and suicide policy, 
substance abuse programs except for individual treatment records which 
are the responsibility of the Surgeon General, retiree benefits, 
services, and programs (excluding individual personnel records of 
retired military personnel, which are the responsibility of the U.S. 
Army Human Resources Command-St. Louis), DA dealings with Veterans 
Affairs, U.S. Soldier's and Airmen's Home; all retention, promotion, and 
separation records; all military

[[Page 40]]

education records including records related to the removal or suspension 
from a military school or class; Junior Reserve Officer Training Corps 
(JROTC) and Senior Reserve Officer Training Corps (SROTC) records; SROTC 
instructor records; U.S. Military Academy Cadet Records; recruiting and 
MOS policy issues, personnel travel and transportation entitlements, 
military strength and statistics, The Army Librarian, demographics, and 
Manprint.
    (l) The Deputy Chief of Staff, G-4 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.
    (m) 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.
    (n) The Surgeon General/Commander, U.S. Army Medical Command, 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.
    (o) 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.
    (p) The Judge Advocate General is authorized to act on requests for 
records relating to claims, courts-martial, legal services, 
administrative
    (q) 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 Denial Authority'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.
    (r) The Chief, Army Reserve and Commander, U.S. Army Reserve Command 
are 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 Denial Authority's 
responsibility. Records under the responsibility of the Chief, Army 
Reserve and the Commander, U.S. Army Reserve Command 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; and all other Office of the Chief, Army Reserve 
(OCAR) records and Headquarters, U.S. Army Reserve Command records.
    (s) The Commander, United States Army Materiel Command (AMC) is 
authorized to act on requests for the records of AMC headquarters and to 
subordinate commands, units, and activities that relate to procurement, 
logistics, research and development, and supply and maintenance 
operations.
    (t) The Provost Marshal General is authorized to act on all requests 
for provost marshal activities and law enforcement functions for the 
Army, all matters relating to police intelligence, physical security, 
criminal investigations, corrections and internment (to include 
confinement and correctional programs for U.S. prisoners, criminal 
investigations, provost marshal activities, and military police support. 
The Provost Marshal General is responsible for the Office of Security, 
Force Protection, and Law Enforcement Division and is the functional 
proponent for AR 190-series (Military Police) and 195-series (Criminal 
Investigation), AR 630-10 Absent Without Leave, Desertion, and 
Administration of Personnel Involved in Civilian Court Proceedings, and 
AR 633-30, Military Sentences to Confinement.
    (u) The Commander, U.S. Army Criminal Investigation Command, is 
authorized to act on requests for criminal investigative records of 
USACIDC headquarters, and its subordinate activities, and military 
police reports. This includes criminal investigation records, 
investigation-in-progress records, and all military police records and 
reports that result in criminal investigation reports. This authority 
has been delegated to the Director, U.S. Army Crime Records Center.
    (v) The Commander, U.S. Army Human Resources Command, is authorized 
to act on requests for military personnel files relating to active duty 
personnel including, but not limited to military personnel matters, 
military education records including records related to the removal or 
suspension from a military school or class; 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

[[Page 41]]

identification cards, naturalization and citizenship, commercial 
solicitation, Military Postal Service Agency and Army postal and 
unofficial mail service. The Commander, U.S. Army Human Resources 
Command, is also authorized to act on requests concerning all personnel 
and medical records of retired, separated, discharged, deceased, and 
reserve component military personnel, unless such records clearly fall 
within another Denial Authority's authority.
    (w) The Commander, U.S. Army Resources Command-St. Louis has been 
delegated authority to act on behalf of the U.S. Army Human Resources 
Commander for requests concerning all personnel and medical records of 
retired, separated, discharged, deceased, and reserve component military 
personnel, unless such records clearly fall within another Denial 
Authority's authority. The authority does not 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.
    (x) The Assistant Chief of Staff for Installation Management is 
authorized to act on requests for records relating to planning, 
programming, execution and operation of Army installations. This 
includes base realignment and closure activities, environmental 
activities other than litigation, facilities and housing activities, and 
installation management support activities.
    (y) The Commander, U.S. Army Intelligence and Security Command, is 
authorized to act on requests for intelligence and security records, 
foreign scientific and technological records, intelligence training, 
intelligence threat assessments, and foreign liaison information, 
mapping and geodesy information, ground surveillance records, 
intelligence threat assessment, and missile intelligence data relating 
to tactical land warfare systems.
    (z) The Commander, U.S. Army Combat Readiness Center (formerly U.S. 
Army Safety Center), is authorized to act on requests for Army safety 
records.
    (aa) The Commander, U.S. Army Test and Evaluation Command (ATEC), is 
authorized to act on requests for the records of ATEC headquarters, its 
subordinate commands, units, and activities that relate to test and 
evaluation operations.
    (bb) The General Counsel, Army and Air Force Exchange Service, is 
authorized to act on requests for Army and Air Force Exchange Service 
records, under AR 60-20/AFR 147-14.
    (cc) The Commandant, United States Disciplinary Barracks (USDB) is 
authorized to act on records pertaining to USDB functional area 
responsibilities relating to the administration and confinement of 
individual military prisoners at the USDB. This includes, but is not 
limited to, all records pertaining to the treatment of military 
prisoners; investigation of prisoner misconduct; management, operation, 
and administration of the USDB confinement facility; and related 
programs which fall directly within the scope of the Commandant's 
functional area of command and control.
    (dd) The Commander, U.S. Army Community and Family Support Center 
(USACFSC) is authorized to act on requests for records pertaining to 
morale, welfare, recreation, and entertainment programs; community and 
family action programs; child development centers; non-appropriated 
funds issues, and private organizations on Army installations.
    (ee) The Commander, Military Surface Deployment and Distribution 
Command (formerly Military Traffic Management Command) is authorized to 
act on requests for records pertaining to military and commercial 
transportation and traffic management records.
    (ff) The Director, Installation Management Agency (IMA) is 
authorized to act on requests for all IMA records.
    (gg) Special Denial Authority's authority for time-event related 
records may be designated on a case-by-case basis. These will be 
published in the Federal Register. You may contact the Department of the 
Army, Freedom of Information and Privacy Office to obtain current 
information on special delegations.



        Sec. Appendix C to Part 505--Privacy Act Statement Format

    (a) Authority: The specific federal statute or Executive Order that 
authorizes collection of the requested information.
    (b) Principal Purpose(s): The principal purpose or purposes for 
which the information is to be used.
    (c) Routine Uses(s): Disclosure of the information outside DOD.
    (d) Disclosure: Whether providing the information is voluntary or 
mandatory and the effects on the individual if he or she chooses not to 
provide the requested information.
    (1) Example of a Privacy Act Statement
    (i) Authority: Emergency Supplement Act of 2000; Public Law 106-246; 
5 U.S.C. 3013, Secretary of the Army; 10 U.S.C. 5013, Secretary of the 
Navy; 10 U.S.C. 8013, Secretary of the Air Force; Department of Defense 
Directive 8500.aa, Information Assurance (IA); and E.O. 9397 (SSN).
    (ii) Principal Purpose(s): To control access to DOD information, 
information based systems and facilities by authenticating the identity 
of a person using a measurable physical characteristic(s). This computer 
system uses software programs to create biometrics templates and summary 
statistics, which are used for purposes such as assessing

[[Page 42]]

system performance or identifying problem areas.
    (iii) Routine Use(s): None. The DoD ``Blanket Routine Uses'' set 
forth at the beginning of the Army's Compilations of System of Records 
Notices applies to this system.
    (iv) Disclosure: Voluntary; however, failure to provide the 
requested information may result in denial of access to DOD information 
based systems and/or DOD facilities.
    (2) [Reserved]



  Sec. Appendix D to Part 505--Exemptions; Exceptions; and DoD Blanket 
                              Routine Uses

    (a) Special Exemption. 5 U.S.C. 552a(d)(5)--Denies individual access 
to any information compiled in reasonable anticipation of civil action 
or proceeding.
    (b) General and Specific Exemptions. The Secretary of the Army may 
exempt Army systems of records from certain requirements of the Privacy 
Act. The two kinds of exemptions that require Secretary of the Army 
enactment are General and Specific exemptions. The Army system of 
records notices for a particular type of record will state whether the 
Secretary of the Army has authorized a particular General and Specific 
exemption to a certain type of record. The Army system of records 
notices are published in DA Pam 25-51 and on the Defense Privacy 
Office's Web site http://www.defenselink.mil/privacy/.
    (c) Twelve Exceptions to the ``No Disclosure without Consent'' rule 
of the Privacy Act.
    (1) 5 U.S.C. 552a(b)(1)--To DOD officers and employees who have a 
need for the record in the performance of their official duties. This is 
the ``official need to know concept.
    (2) 5 U.S.C. 552a(b)(2)--FOIA requires release of the information.
    (3) 5 U.S.C. 552a(b)(3)--The Routine Use Exception. The Routine Use 
must be published in the Federal Register and the purpose of the 
disclosure must be compatible with the purpose for the published Routine 
Use. The applicable Routine Uses for a particular record will be listed 
in the applicable Army Systems Notice.
    (4) 5 U.S.C. 552a(b)(4)--To the Bureau of the Census to plan or 
carry out a census or survey, or related activity pursuant to Title 13 
of the U.S. Code.
    (5) 5 U.S.C. 552a(b)(5)--To a recipient who has provided DA or DOD 
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) 5 U.S.C. 552a(b)(6)--To the National Archives and Records 
Administration as a record that has sufficient historical or other value 
to warrant its continued preservation by the U.S. Government, or for 
evaluation by the Archivist of the United States or the designee of the 
Archivist to determine whether the record has such value.
    Note: Records transferred to the Federal Records Centers for storage 
remain under the control of the DA and no accounting for disclosure is 
required under the Privacy Act.
    (7) 5 U.S.C. 552a(b)(7)--To another agency or 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 or the DOD specifying the 
particular portion desired and the law enforcement activity for which 
the record is sought.
    (8) 5 U.S.C. 552a(b)(8)--To a person pursuant to a showing of 
compelling circumstances affecting the health or safety of an individual 
if upon such disclosure, notification is transmitted to the last known 
address of such individual.
    (9) 5 U.S.C. 552a(b)(9)--To either House of Congress, or, to the 
extent the matter is within its jurisdiction, any committee or 
subcommittee thereof, or any joint committee of Congress or subcommittee 
of any such joint committee. Requests from a Congressional member acting 
on behalf of a constituent are not included in this exception, but may 
be covered by a routine use exception to the Privacy Act (See applicable 
Army system of records notice).
    (10) 5 U.S.C. 552a(b)(10)--To the Comptroller General or authorized 
representatives, in the course of the performance of the duties of the 
Government Accountability Office.
    (11) 5 U.S.C. 552a(b)(11)--Pursuant to the order of a court of 
competent jurisdiction. The order must be signed by a judge.
    (12) 5 U.S.C. 552a(b)(12)--To a consumer reporting agency in 
accordance with section 3711(e) of Title 31 of the U.S. Code. The name, 
address, SSN, and 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. However, before doing so, agencies must 
complete a series of steps designed to validate the debt and to offer 
the individual an opportunity to repay it.
    (d) DOD Blanket Routine Uses. In addition to specific routine uses 
which are listed in the applicable Army system of record notices, 
certain ``Blanket Routine Uses'' apply to all DOD maintained systems of 
records. These are listed on the Defense Privacy Office's Web site 
http://www.defenselink.mil/privacy/. These ``Blanket Routine Uses'' are 
not specifically listed in each system of records notice as the specific 
routine uses are. The current DOD ``Blanket Routine Uses'' are as 
follows--

[[Page 43]]

    (1) Law Enforcement Routine Use. If a system of records maintained 
by a DOD component to carry out its functions indicates a violation or 
potential violation of law, whether civil, criminal or regulatory in 
nature, and whether arising by general statute or by regulation, rule, 
or order issued pursuant thereto, the relevant records in the system of 
records may be referred, as a routine use, to the agency concerned, 
whether federal, state, local, or foreign, charged with the 
responsibility of investigating or prosecuting such violation or charged 
with enforcing or implementing the statute, rule, regulation or order 
issued pursuant thereto.
    (2) Disclosure When Requesting Information Routine Use. A record 
from a system of records maintained by a DOD component may be disclosed 
as a routine use to a Federal, State, or local agency maintaining civil, 
criminal, or other relevant enforcement information or other pertinent 
information, such as current licenses, if necessary to obtain 
information relevant to a DOD Component 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 Routine Use. A record from a 
system of records maintained by a DOD component 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 Routine Use. Disclosure from 
a system of records maintained by a DOD component 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 Routine Use. Relevant information 
contained in all systems of records of DOD published on or before August 
22, 1975, may be disclosed to Office of Management and Budget in 
connection with the review of private relief legislation, as set forth 
in OMB Circular A-19, at any stage of the legislative coordination and 
clearance process as set forth in that Circular.
    (6) Disclosures Required by International Agreements Routine Use. A 
record from a system of records maintained by a DOD Component may be 
disclosed to foreign law enforcement, security, investigatory, or 
administrative authorities in order to comply 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 Routine Use. 
Any information normally contained in Internal Revenue Service Form W-2, 
which is maintained in a record from a system of records maintained by a 
DOD component, may be disclosed to state and local taxing authorities 
with which the Secretary of the Treasury has entered into agreements 
pursuant to 5 U.S.C. sections 5516, 5517, and 5520 and 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 is in accordance with Treasury Fiscal 
Requirements Manual Bulletin 76-07.
    (8) Disclosure to the Office of Personnel Management Routine Use. A 
record from a system of records subject to the Privacy Act and 
maintained by a DA activity may be disclosed to the Office of Personnel 
Management concerning information on pay and leave, benefits, retirement 
deductions, and any other information necessary for Office of Personnel 
Management to carry out its legally authorized Government-wide personnel 
management functions and studies.
    (9) Disclosure to the Department of Justice for Litigation Routine 
Use. A record from a system of records maintained by a DOD component may 
be disclosed as a routine use to any component of the Department of 
Justice for the purpose of representing the Department of Defense, or 
any officer, employee, or member of the Department in pending or 
potential litigation to which the record is pertinent.
    (10) Disclosure to Military Banking Facilities Overseas Routine Use. 
Information as to current military addresses and assignments may be 
provided to military banking facilities who provide banking services 
overseas and who are reimbursed by the Government for certain checking 
and loan losses. For personnel separated, discharged, or retired from 
the Armed forces, information as to last known residential or home of 
record address may be provided to the military banking facility upon 
certification by a banking facility officer that the facility has a 
returned or dishonored check negotiated by the individual or the 
individual has defaulted on a loan and that if restitution is not made 
by the individual, the U.S. Government will be liable for the losses the 
facility may incur.
    (11) Disclosure of Information to the General Services 
Administration Routine Use. A record from a system of records maintained 
by a DOD component may be disclosed as a routine use to the General 
Services Administration for the purpose of records management 
inspections conducted under authority of 44 U.S.C. Sections 2904 and 
2906.

[[Page 44]]

    (12) Disclosure of Information to National Archives and Records 
Administration Routine Use. A record from a system of records maintained 
by a DOD component may be disclosed as a routine use to NATIONAL 
ARCHIVES AND RECORDS ADMINISTRATION for the purpose of records 
management inspections conducted under authority of 44 U.S.C. sections 
2904 and 2906.
    (13) Disclosure to the Merit Systems Protection Board Routine Use. A 
record from a system of records maintained by a DOD component may be 
disclosed as a routine use to the Merit Systems Protection Board, 
including the Office of the Special Counsel for the purpose of 
litigation, including administrative procedures, appeals, special 
studies of the civil service and other merit systems, review of Office 
of Personnel Management or component rules and regulations, 
investigation of alleged or possible prohibited personnel practices, 
including administrative proceedings involving any individual subject of 
a DOD investigation, and such other functions, promulgated in 5 U.S.C. 
sections 1205 and 1206, or as may be authorized by law.
    (14) Counterintelligence Purposes Routine Use. A record from a 
system of records maintained by a DOD component may be disclosed as a 
routine use outside the DOD or the U.S. Government for the purpose of 
counterintelligence activities authorized by U.S. Law or Executive Order 
or for the purpose of enforcing laws, which protect the national 
security of the United States.



          Sec. Appendix E to Part 505--Litigation Status Sheet

    (a) Case Number: The number used by a DA activity for reference 
purposes; Requester;
    (b) Document Title or Description: Indicates the nature of the case, 
such as ``Denial of access'', ``Refusal to amend,'' ``Incorrect 
records'', or other violations of the Act (specify);
    (c) Litigation: Date complaint filed, Court, and Case File Number;
    (d) Defendants: DOD component and individual;
    (e) Remarks: Brief explanation of what the case is about;
    (f) Court action: Court's finding and disciplinary action (if 
applicable); and
    (g) Appeal (If applicable): Date complaint filed, court, case File 
Number, court's finding, disciplinary action (if applicable).



   Sec. Appendix F to Part 505--Example of a System of Records Notice

    (a) Additional information and guidance on Privacy Act system of 
records notices are found in DA PAM 25-51. The following elements 
comprise a Privacy Act system of records notice for publication in the 
Federal Register:
    (b) System Identifier: A0025-55 AHRC--DA FOIA/P Office assigns the 
notice number, for example, A0025-55, where ``A'' indicates ``Army,'' 
the next number represents the publication series number related to the 
subject matter, and the final letter group shows the system manager's 
command. In this case, it would be U.S. Army Human Resources Command.
    (c) System Name: Use a short, specific, plain language title that 
identifies the system's general purpose (limited to 55 characters).
    (d) System Location: Specify the address of the primary system and 
any decentralized elements, including automated data systems with a 
central computer facility and input or output terminals at separate 
locations. Use street address, 2-letter state abbreviations and 9-digit 
ZIP Codes. Spell out office names. Do not use office symbols.
    (e) Categories of Individuals: Describe the individuals covered by 
the system. Use non-technical, specific categories of individuals about 
whom the Department of Army keeps records. Do not use categories like 
''all Army personnel'' unless that is truly accurate.
    (f) Categories of Records in the System: Describe in clear, plain 
language, all categories of records in the system. List only documents 
actually kept in the system. Do not identify source documents that are 
used to collect data and then destroyed. Do not list form numbers.
    (g) Authority for Maintenance of the System: Cite the specific law 
or Executive Order that authorizes the maintenance of the system. Cite 
the DOD directive/instruction or Department of the Army Regulation(s) 
that authorizes the Privacy Act system of records. Always include titles 
with the citations. Note: Executive Order 9397 authorizes using the SSN 
as a personal identifier. Include this authority whenever the SSN is 
used to retrieve records.
    (h) Purpose(s): List the specific purposes for maintaining the 
system of records by the activity.
    (i) Routine Use(s): The blanket routine uses that appear at the 
beginning of each Component compilation apply to all systems notice 
unless the individual system notice specifically states that one or more 
of them do not apply to the system. Blanket Routine Uses are located at 
the beginning of the Component listing of systems notices and are not 
contained in individual system of records notices. However, specific 
routine uses are listed in each applicable system of records notice. 
List the specific activity to which the record may be released, for 
example ``To the Veterans Administration'' or ``To state and local 
health agencies''. For each routine user identified, include a statement 
as to the purpose or purposes for which the record is to release to that 
activity. Do not use general

[[Page 45]]

statements, such as ``To other federal agencies as required'' or ``To 
any other appropriate federal agency''.
    (j) Polices and Practices for Storing, Retrieving, Accessing, 
Retaining, and Disposing of Records in the System:
    (k) Storage: State the medium in which DA maintains the records; for 
example, in file folders, card files, microfiche, computer, or a 
combination of those methods. Storage does not refer to the storage 
container.
    (l) Retrievability: State how the Army retrieves the records; for 
example, by name, fingerprints or voiceprints.
    (m) Safeguards: Identify the system safeguards; for example, storage 
in safes, vaults, locked cabinets or rooms, use of guards, visitor 
controls, personnel screening, computer systems software, and so on. 
Describe safeguards fully without compromising system security.
    (n) Retention and Disposal. State how long AR 25-400-2 requires the 
activity to maintain the records. Indicate when or if the records may be 
transferred to a Federal Records Center and how long the record stays 
there. Specify when the Records Center sends the record to the National 
Archives or destroys it. Indicate how the records may be destroyed.
    (o) System Manager(s) and Address: List the position title and duty 
address of the system manager. For decentralized systems, show the 
locations, the position, or duty title of each category of officials 
responsible for any segment of the system.
    (p) Notification Procedures: List the title and duty address of the 
official authorized to tell requesters if their records are in the 
system. Specify the information a requester must submit; for example, 
full name, military status, SSN, date of birth, or proof of identity, 
and so on.
    (q) Record Access Procedures: Explain how individuals may arrange to 
access their records. Include the titles or categories of officials who 
may assist; for example, the system manager.
    (r) Contesting Records Procedures: The standard language to use is 
``The Army's rules for accessing records, and for contesting contents 
and appealing initial agency determinations are contained in Army 
Regulation 25-71; 32 CFR part 505; or may be obtained from the system 
manager.''
    (s) Record Source Categories: Show categories of individuals or 
other information sources for the system. Do not list confidential 
sources protected by 5 U.S.C. 552a(k)(2), (k)(5), or (k)(7).
    (t) Exemptions Claimed for the System: Specifically list any 
approved exemption including the subsection in the Act. When a system 
has no approved exemption, write ``none'' under this heading.



  Sec. Appendix G to Part 505--Management Control Evaluation Checklist

    (a) Function. The function covered by this checklist is DA Privacy 
Act Program.
    (b) Purpose. The purpose of this checklist is to assist Denial 
Authorities and Activity Program Coordinators in evaluating the key 
management controls listed below. This checklist is not intended to 
cover all controls.
    (c) Instructions. Answer should be based on the actual testing of 
key management controls (e.g., document analysis, direct observation, 
sampling, simulation, other). Answers that indicate deficiencies should 
be explained and corrective action indicated in supporting 
documentation. These management controls must be evaluated at least once 
every five years. Certificate of this evaluation has been conducted and 
should be accomplished on DA Form 11-2-R (Management Control Evaluation 
Certification Statement).

                             Test Questions

    a. Is a Privacy Act Program established and implemented in your 
organization?
    b. Is an individual appointed to implement the Privacy Act 
requirements?
    c. Are provisions of AR 25-71 concerning protection of OPSEC 
sensitive information regularly brought to the attention of managers 
responsible for responding to Privacy Act requests and those responsible 
for control of the Army's records?
    d. When more than twenty working days are required to respond, is 
the Privacy Act requester informed, explaining the circumstance 
requiring the delay and provided an appropriate date for completion.
    e. Are Accounting Disclosures Logs being maintained?
    Comments: Assist in making this a better tool for evaluating 
management controls. Submit comments to the Department of Army, Freedom 
of Information and Privacy Division.



                Sec. Appendix H to Part 505--Definitions

                                Function

    (a) Access. Review or copying a record or parts thereof contained in 
a Privacy Act system of records by an individual.
    (b) Agency. For the purposes of disclosing records subject to the 
Privacy Act, Components of the Department of Defense are considered a 
single agency. For other purposes including access, amendment, appeals 
from denials of access or amendment, exempting systems of records, and 
recordkeeping for release to non-DOD agencies, the Department of the 
Army is considered its own agency.
    (c) Amendment. The process of adding, deleting, or changing 
information in a system

[[Page 46]]

of records to make the data accurate, relevant, timely, or complete.
    (d) Computer Matching Agreement. An agreement to conduct a 
computerized comparison of two or more automated systems of records to 
verify eligibility for payments under Federal benefit programs or to 
recover delinquent debts for these programs.
    (e) Confidential Source. A person or organization who has furnished 
information to the Federal Government under an express promise that the 
person's or the organization's identity would be held in confidence or 
under an implied promise of such confidentiality if this implied promise 
was made before September 27, 1975.
    (f) Cookie. A mechanism that allows the server to store its own 
information about a user on the user's own computer. Cookies are 
embedded in the HTML information flowing back and forth between the 
user's computer and the servers. They allow user-side customization of 
Web information. Normally, cookies will expire after a single session.
    (g) Defense Data Integrity Board. The Board oversees and coordinates 
all computer matching programs involving personal records contained in 
systems of records maintained by the DOD Component; reviews and approves 
all computer matching agreements between the Department of Defense (DOD) 
and other Federal, State, and local governmental agencies, as well as 
memoranda of understanding when the match is internal to the DOD.
    (h) Disclosure. The transfer of any personal information from a 
Privacy Act system of records by any means of communication (such as 
oral, written, electronic mechanical, or actual review) to any persons, 
private entity, or government agency, other than the subject of the 
record, the subject's designated agent or the subject's legal guardian. 
Within the context of the Privacy Act and this part, this term applies 
only to personal information that is a part of a Privacy Act system of 
records.
    (i) Deceased Individuals. The Privacy Act confers no rights on 
deceased persons, nor may their next-of-kin exercise any rights for 
them. However, family members of deceased individuals have their own 
privacy right in particularly sensitive, graphic, personal details about 
the circumstances surrounding an individual's death. This information 
may be withheld when necessary to protect the privacy interests of 
surviving family members. Even information that is not particularly 
sensitive in and of itself may be withheld to protect the privacy 
interests of surviving family members if disclosure would rekindle 
grief, anguish, pain, embarrassment, or cause a disruption of their 
peace minds. Because surviving family members use the deceased's Social 
Security Number to obtain benefits, DA personnel should continue to 
protect the SSN of deceased individuals.
    (j) Individual. A living person who is a citizen of the United 
States or an alien lawfully admitted for permanent residence. The parent 
or legal guardian of a minor also may act on behalf of an individual. 
Members of the United States Armed Forces are individuals. Corporations, 
partnerships, sole proprietorships, professional groups, businesses, 
whether incorporated or unincorporated, and other commercial entities 
are not individuals.
    (k) Individual Access. The subject of a Privacy Act file or his or 
her designated agent or legal guardian has access to information about 
them contained in the Privacy Act file. The term individual generally 
does not embrace a person acting on behalf of a commercial entity (for 
example, sole proprietorship or partnership).
    (l) Denial Authority (formerly Access and Amendment Refusal 
Authority). The Army Staff agency head or major Army commander 
designated authority by this part to deny access to, or refuse amendment 
of, records in his or her assigned area or functional specialization.
    (m) Maintain. Includes keep, collect, use or disseminate.
    (n) Members of the Public. Individuals or parties acting in a 
private capacity.
    (o) Minor. An individual under 18 years of age, who is not married 
and who is not a member of the Department of the Army.
    (p) Official Use. Within the context of this part, this term is used 
when Department of the Army officials and employees have demonstrated a 
need for the use of any record or the information contained therein in 
the performance of their official duties.
    (q) Personal Information. Information about an individual that 
identifies, relates, or is unique to, or describes him or her, e.g., a 
social security number, age, military rank, civilian grade, marital 
status, race, salary, home/office phone numbers, etc.
    (r) Persistent cookies. Cookies that can be used to track users over 
time and across different Web sites to collect personal information.
    (s) Personal Identifier. A name, number, or symbol that is unique to 
an individual, usually the person's name or SSN.
    (t) System of Records. A group of records under the control of the 
DA from which information is filed and retrieved by individuals' names 
or other personal identifiers assigned to the individuals. System 
notices for all systems of records must be published in the Federal 
Register. A grouping of records arranged chronologically or subjectively 
that are not retrieved by individuals' names or identifiers is not a 
Privacy Act system of records, even though individual information could 
be retrieved by individuals' names or personal identifiers, such as 
through a paper-by-paper search.

[[Page 47]]

    (u) Privacy Advisory. A statement required when soliciting 
personally identifying information by a Department of the Army Web site 
and the information is not maintained in a system of records. The 
Privacy Advisory informs the individual why the information is being 
solicited and how it will be used.
    (v) Privacy Impact Assessment (PIA). An analysis, which considers 
information sensitivity, vulnerability, and cost to a computer facility 
or word processing center in safeguarding personal information processed 
or stored in the facility.
    (w) Privacy Act (PA) Request. A request from an individual for 
information about the existence of, access to, or amendment of records 
pertaining to that individual located in a Privacy Act system of 
records. The request must cite or implicitly refer to the Privacy Act of 
1974.
    (x) Protected Personal Information. Information about an individual 
that identifies, relates to, is unique to, or describes him or her 
(e.g., home address, date of birth, social security number, credit card, 
or charge card account, etc.).
    (y) Records. Any item, collection, or grouping of information, 
whatever the storage media (e.g., paper, electronic, etc), about an 
individual that is maintained by a DOD Component, including but not 
limited to, his or her education, financial transactions, medical 
history, criminal or employment history and that contains his or her 
name, or the identifying number, symbol, or other identifying particular 
assigned to the individual, such as a finger or voice print or a 
photograph.
    (z) Records Maintenance and Use. Any action involving the storage, 
retrieval, and handling of records kept in offices by or for the agency.
    (aa) Review Authority. An official charged with the responsibility 
to rule on administrative appeals of initial denials of requests for 
notification, access, or amendment of records. Additionally, the Office 
of Personnel Management is the review authority for civilian official 
personnel folders or records contained in any other OMP record.
    (bb) 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. A 
routine use must be included in the notice for the Privacy Act system of 
records published in the Federal Register.
    (cc) Statistical record. A record in a system of records maintained 
for statistical research or reporting purposes and not used in whole or 
in part in making determinations about specific individuals.
    (dd) System Manager. An official who has overall responsibility for 
policies and procedures for operating and safeguarding a Privacy Act 
system of records.
    (ee) Third-party cookies. Cookies placed on a user's hard drive by 
Internet advertising networks. The most common third-party cookies are 
placed by the various companies that serve the banner ads that appear 
across many Web sites.
    (ff) Working Days. Days excluding Saturday, Sunday, and legal 
holidays.



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.

              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.

[[Page 48]]



                         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 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

[[Page 49]]

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.



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.

[[Page 50]]

    (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 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.

[[Page 51]]



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 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

[[Page 52]]

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 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.

[[Page 53]]

    (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 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

[[Page 54]]

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.
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--

[[Page 55]]

    (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.
    (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 Sec. Sec. 513.2(a)(3)(xv) 
and 513.3.)

[[Page 56]]

    (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 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

[[Page 57]]

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. 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.

[[Page 58]]

    (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 
Sec. Sec. 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 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.

[[Page 59]]

    (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 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.

[[Page 60]]

    (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 Sec. Sec. 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.
    (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.

[[Page 61]]

    (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 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,

[[Page 62]]

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.
    (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.

[[Page 63]]

    (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.



                 Sec. 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 Sec. Sec. 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 Sec. Sec. 513.2(a)(3)(viii)(G) 
and 513.4(a)(4)).
    Uniform Code of Military Justice. (Cited in Sec. Sec. 
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.

                                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 
Sec. Sec. 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.

[[Page 64]]

                              PS Form 3811

    Return Receipt, Registered, Insured, and Certified Mail.



           Sec. 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 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 Sec. Sec. 226.3, 226.9 (1978)).



                  Sec. 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

[[Page 65]]

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.
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.

[[Page 66]]

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.
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.

[[Page 67]]

    (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.
    (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.

[[Page 68]]

    (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.
    (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

[[Page 69]]

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.



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.

[[Page 70]]



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 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

[[Page 71]]

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.



              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.

[[Page 72]]

    (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 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

[[Page 73]]

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.



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.

[[Page 74]]

    (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.
    (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).

[[Page 75]]

    (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 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

[[Page 76]]

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.
    (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

[[Page 77]]

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 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

[[Page 78]]

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 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

[[Page 79]]

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.



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,

[[Page 80]]

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 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.

[[Page 81]]

    (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, ``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.

[[Page 82]]

    (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.
    (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,

[[Page 83]]

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 Sec. Sec. 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 (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

[[Page 84]]

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.
    (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

[[Page 85]]

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, 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

[[Page 86]]

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 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 
Sec. Sec. 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.

[[Page 87]]

    (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 Sec. Sec. 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 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

[[Page 88]]

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 (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

[[Page 89]]

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 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.

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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: 
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.

[[Page 91]]



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 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.

[[Page 92]]

    (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 
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

[[Page 93]]

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.
    (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.

[[Page 94]]

    (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 
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.

[[Page 95]]

    (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.
    (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.

[[Page 96]]

    (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 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

[[Page 97]]

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.



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.

[[Page 98]]

    (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-
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

[[Page 99]]

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 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

[[Page 100]]

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.



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.

[[Page 101]]



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.



                 Sec. 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 Sec. Sec. 516.40, 516.72)
AR 27-10, Military Justice. (Cited in Sec. 516.4)
AR 27-20, Claims. (Cited in Sec. Sec. 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.)
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 Sec. Sec. 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 Sec. Sec. 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 
          Sec. Sec. 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 Sec. Sec. 516.4, 516.5, 516.15.)

[[Page 102]]

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.



             Sec. 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
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



  Sec. 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

[[Page 103]]

(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 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

[[Page 104]]

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;
    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.

[[Page 105]]

    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).

                     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.

[[Page 106]]



  Sec. 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 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

[[Page 107]]

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.
    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

[[Page 108]]

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)).
    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.

[[Page 109]]

                            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 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:

[[Page 110]]

    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.



  Sec. 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.



                  Sec. 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 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

[[Page 111]]

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 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.

[[Page 112]]

                               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.

                                 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.

[[Page 113]]

    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.

                  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.



                  Sec. 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.

[[Page 114]]

    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.
    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.

[[Page 115]]

      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 Sec. Sec. 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 Sec. Sec. 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' 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. Sec. Sec. 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,

[[Page 116]]

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 Sec. Sec. 
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.

              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 
Sec. Sec. 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 Sec. Sec. 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).

[[Page 117]]

    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.
    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.

[[Page 118]]

    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.
    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.)

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    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.
    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

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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 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

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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.
    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 FREEDOM OF INFORMATION ACT PROGRAM--Table of Contents




                      Subpart A_General Provisions

Sec.
518.1 Purpose.
518.2 References.
518.3 Explanation of abbreviations and terms.
518.4 Responsibilities.
518.5 Authority.
518.6 Public information.
518.7 FOIA terms defined.
518.8 Freedom of Information requirements.

                      Subpart B_FOIA Reading Rooms

518.9 Reading room.
518.10 ``(a)(2)'' materials.
518.11 Other materials.

                          Subpart C_Exemptions

518.12 General.
518.13 FOIA exemptions.

                     Subpart D_For Official Use Only

518.14 General.

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               Subpart E_Release and Processing Procedures

518.15 General provisions.
518.16 Initial determinations.
518.17 Appeals.
518.18 Judicial actions.

                         Subpart F_Fee Schedule

518.19 General provisions.
518.20 Collection of fees and fee rates.
518.21 Collection of fees and fee rates for technical data.

                            Subpart G_Reports

518.22 Reports control.
518.23 Annual report content.

Appendixes to Part 518
Appendix A to Part 518--References.
Appendix B to Part 518--Addressing FOIA Requests.

    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: 71 FR 9222, Feb. 22, 2006, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 518.1  Purpose.

    This part provides policies and procedures for implementation of the 
Freedom of Information Act (5 U.S.C. 552, as amended) and Department of 
Defense Directive (DoDD) 5400.7 and promotes uniformity in the 
Department of Defense (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 Army Information Management (AR 25-1).



Sec. 518.2  References.

    Required and related publications are listed in Appendix A of this 
part.



Sec. 518.3  Explanation of abbreviations and terms.

    Abbreviations and special terms used in this part are explained in 
the glossary of AR 25-55.



Sec. 518.4  Responsibilities.

    (a) The Administrative Assistant to the Secretary of the Army (AASA) 
is responsible for issuing policy and establishing guidance for the Army 
FOIA Program. AASA has the responsibility to approve exceptions to this 
regulation that are consistent with controlling law and regulations. 
AASA may delegate the approval authority, in writing, to a division 
chief, under its supervision, within that agency in the grade of O6 or 
civilian equivalent.
    (b) The Administrative Assistant to the Secretary of the Army, 
(AASA), The Records and Programs Agency, (RPA), Records Management and 
Declassification Agency (RMDA), is responsible for developing and 
recommending policy to AASA concerning the Army FOIA program and overall 
execution of the program under the policy and guidance of AASA.
    (c) The Chief of Information Officer (CIO), G6 will provide 
oversight of the FOIA program as necessary in compliance with Federal 
Statutes, regulations, Office of Management and Budget (OMB), and the 
Office of Secretary of Defense (OSD).
    (d) Heads of Army Staff agencies, field operating agencies, major 
Army commands (MACOMS), and subordinate commands are responsible for the 
supervision and execution of the FOIA program in functional areas and 
activities under their command.
    (e) 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.
    (f) Commander, Army and Air Force Exchange Service (AAFES), is 
responsible for the supervision of the FOIA program within that command 
pursuant to this part.



Sec. 518.5  Authority.

    (a) This part governs written FOIA requests from members of the 
public. It does not preclude the release of personnel or other records 
to agencies or individuals in the Federal Government for use in official 
work.
    (b) Soldiers and civilian employees of the Department of the Army 
(DA) may, as private citizens, request DA or other agencies' records 
under the FOIA. They

[[Page 123]]

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.
    (c) 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 part. Guidance on the applicability of the FOIA is also found in 
the Federal Acquisition Regulation (FAR).
    (d) 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 activities and procedures);
    (2) AR 27-10 (military justice);
    (3) AR 27-20 (claims);
    (4) AR 27-40 (litigation: release of information and appearance of 
witnesses);
    (5) AR 27-60 (intellectual property);
    (6) AR 36-2 (Government Accounting Office audits);
    (7) AR 40-66, AR 40-68, and AR 40-400 (medical records);
    (8) AR 70-31 (technical reports);
    (9) AR 20-1, AR 385-40 and DA Pam 385-40 (aircraft accident 
investigations);
    (10) AR 195-2 (criminal investigation activities);
    (11) AR 190-45 (Military Police records and reports);
    (12) AR 360-1 (Army public affairs: public information, general 
policies on release of information to the public);
    (13) AR 380-5 and DoD 5200.1-R (national security classified 
information);
    (14) 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);
    (15) AR 380-10 (Technology Transfer for disclosure of information 
and contacts with foreign representatives;
    (16) AR 381-45 (U.S. Army Intelligence and Security Command 
investigation files);
    (17) AR 385-40 (safety reports and records);
    (18) AR 600-8-104 (military personnel information management 
records);
    (19) AR 600-85 (alcohol and drug abuse records);
    (20) AR 608-19 (family advocacy records); and
    (21) AR 690 (series civilian personnel records, FAR, DoD Federal 
Acquisition Regulation Supplement (DFARS) and the Army Federal 
Acquisition Regulation Supplement (AFARS) procurement matters).



Sec. 518.6  Public information.

    (a) Public information. The public has a right to information 
concerning the activities of its Government. Army 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 record requested by a member of the public who 
follows rules established by proper authority in DA shall not be 
withheld in whole or in part unless the record is exempt from mandatory 
partial or total disclosure under the FOIA. As a matter of policy, Army 
activities shall make discretionary disclosures of exempt records or 
information only after full and deliberate consideration of the 
institutional, commercial, and personal privacy interests that could be 
implicated by disclosure of the information. Activities must be prepared 
to present a sound legal basis in support of their determinations. In 
order that the public may have timely information concerning Army 
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. 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 
that would not be withheld under the FOIA should continue to be honored 
through appropriate means without requiring the requester to invoke the 
FOIA.

[[Page 124]]

    (b) FOIA handbook. The Department of the Army Freedom of Information 
Act/Privacy Act (DA FOIA/PA) Office shall prepare, in addition to FOIA 
regulations, a handbook for the use of the public in obtaining 
information from its organizations. This handbook will be a short, 
simple explanation of what the FOIA is designed to do, and how a member 
of the public can use it to access government records. The DA FOIA/PA 
Office handbook will explain the types of records that can be obtained 
through FOIA requests, why some records cannot, by law, be made 
available, and how the Army activity determines whether or not the 
record can be released. The handbook will also explain how to make a 
FOIA request, how long the requester can expect to wait for a reply, and 
appeal rights. The handbook will supplement other information locator 
systems, such as the Government Information Locator Service (GILS), and 
explain how a requester can obtain more information about those systems. 
The handbook will be available on paper and through electronic means and 
contain the following additional information, complete with electronic 
links to the below elements: the location of reading room and the types 
and categories of information available; the location of the World Wide 
Web page; a reference to the Army FOIA regulation and how to obtain a 
copy; a reference to the Army FOIA annual report and how to obtain a 
copy; and the location of the GILS page. The DA FOIA handbook, ``A 
Citizen's Guide to Request Army Records Under the Freedom of Information 
Act (FOIA),'' can be accessed on-line at http://
www.rmda.belvoir.army.mil/. ``The Major Automated Information Systems 
Descriptions'' can be accessed at http://www.defenselink.mil/pubs/foi.
    (c) Control system. A request for records that invokes the FOIA 
shall enter a formal control system designed to ensure accountability 
and compliance with the FOIA. Any request for Army records that either 
explicitly or implicitly cites the FOIA shall be processed under the 
provisions of this part, unless otherwise required.



Sec. 518.7  FOIA terms defined.

    (a) FOIA request. A written request for Army records that reasonably 
describes the record(s) sought, made by any person, including a member 
of the public (U.S. or foreign citizen/entity), 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, DoDD 5400.7, DoD 
5400.7-R, this part, or Army Activity supplementing regulations or 
instructions. All requesters should also indicate a willingness to pay 
fees associated with the processing of their request. Requesters may ask 
for a waiver of fees, but should also express a willingness to pay fees 
in the event of a waiver denial. Written requests may be received by 
postal service or other commercial delivery means, by facsimile, or 
electronically (such as e-mail). Requests received by facsimile or 
electronically must have a postal mailing address included since it may 
not be practical to provide a substantive response electronically. The 
request is considered properly received, or perfected, when the 
conditions in this paragraph have been met and the request arrives at 
the FOIA office of the Activity in possession of the records.
    (b) Agency record. The products of data compilation, such as all 
books, papers, maps, photographs, and machine readable materials, 
inclusive of those in electronic form or format, 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 DA 
possession and control at the time the FOIA request is made.
    (1) The following are not included within the definition of the word 
``record'': Objects or articles, such as structures, furniture, vehicles 
and equipment, whatever their historical value, or value as evidence; 
Anything that is not a tangible or documentary record, such as an 
individual's memory or oral communication; Personal records of an 
individual not subject to

[[Page 125]]

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. Personal papers fall 
into three categories: Those created before entering Government service; 
private materials brought into, created, or received in the office that 
were not created or received in the course of transacting Government 
business; and work-related personal papers that are not used in the 
transaction of Government business in accordance with Public Law 86-36, 
National Security Information Exemption.
    (2) A record must exist and be in the possession and control of DA 
at the time of the request to be considered subject to this part and the 
FOIA. There is no obligation to create or compile a record to satisfy a 
FOIA request.
    (3) Hard copy or electronic records that are subject to FOIA 
requests under 5 U.S.C. 552 (a)(3), and that are available to the public 
through an established distribution system such as the Government 
Printing Office (GPO), Federal Register, National Technical Information 
Service (NTIS), or the Internet, normally need not be processed under 
the provisions of the FOIA. If a request is received for such 
information, Army Activities shall provide the requester with guidance, 
inclusive of any written notice to the public, on how to obtain the 
information. However, if the requester insists that the request be 
processed under the FOIA, then the request shall be processed under the 
FOIA. If there is any doubt as to whether the request must be processed, 
contact DA, FOIA/PA Office.
    (c) Army activity. A specific area of organizational or functional 
responsibility within DA, authorized to receive and act independently on 
FOIA requests.
    (d) Initial denial authority (IDA). An official who has been granted 
authority by the Secretary of the Army to deny records requested under 
the FOIA based on one or more of the nine categories of exemptions from 
mandatory disclosure. An IDA also: Denies a fee category claim by a 
requester; denies a request for expedited processing due to demonstrated 
compelling need; denies a request for a waiver or reduction of fees; 
reviews a fee estimate; and confirms that no records were located in 
response to a request.
    (e) Appellate authority. The Secretary of the Army or designee 
having jurisdiction for this purpose over the record, or any of the 
other adverse determinations. The DA appellate authority is the Office 
of the Army General Counsel (OGC).
    (f) Administrative appeal. A request by a member of the general 
public, made under the FOIA, asking the appellate authority of the Army 
to reverse a decision to: Withhold all or part of a requested record; 
deny a fee category claim by a requester; deny a request for expedited 
processing due to demonstrated compelling need; deny a request for 
waiver or reduction of fees; deny a request to review an initial fee 
estimate; and confirm that no records were located during the initial 
search. Requesters also may appeal the failure to receive a response 
determination within the statutory time limits, a fee estimate, and any 
determination that the requester believes is adverse in nature.
    (g) Public interest. The interest in obtaining official information 
that sheds light on an activity's performance of its statutory duties 
because the information falls within the statutory purpose of the FOIA 
to inform citizens about what their Government is doing. That statutory 
purpose, however, is not fostered by disclosure of information about 
private citizens accumulated in various governmental files that reveals 
nothing about an agency's or official's own conduct.
    (h) Electronic record. Records (including e-mail) that are created, 
stored, and retrievable by electronic means.
    (i) Federal agency. As defined by 5 U.S.C. 552 (f)(1), a Federal 
agency is any executive department, military department, Government 
corporation, Government controlled corporation, or other establishment 
in the executive branch of the Government (including the Executive 
Office of the President), or any independent regulatory agency.
    (j) Law enforcement investigation. An investigation conducted by a 
command

[[Page 126]]

or activity for law enforcement purposes relating to crime, waste, fraud 
or national security. Such investigations may include gathering evidence 
for criminal prosecutions and for civil or regulatory proceedings.



Sec. 518.8  Freedom of Information requirements.

    (a) Compliance with the FOIA. Army personnel are expected to comply 
with the FOIA, this part, and Army FOIA policy in both letter and 
spirit. This strict adherence is necessary to provide uniformity in the 
implementation of the Army FOIA Program and to create conditions that 
will promote public trust.
    (b) Openness with the public. The DA 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.
    (1) Operations Security (OPSEC). DA officials who release records 
under the FOIA must also consider OPSEC. The Army implementing directive 
is AR 530-1.
    (2) 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.
    (c) Avoidance of procedural obstacles. Army Activities shall ensure 
that procedural matters do not unnecessarily impede a requester from 
obtaining DA records promptly. The Army shall provide assistance to 
requesters to help them understand and comply with procedures 
established by this part and any supplemental regulations published by 
the Army Activities. Coordination of referral of requests with DA FOIA/
PA Office should be made telephonically in order to respond to the 
requester in a timelier manner. Requests will not be mailed to the DA 
FOIA/PA Office for disposition or coordination with other IDAs.
    (d) Prompt action on requests and final response determinations. 
Generally, when a member of the public complies with the procedures 
established in this part or instructions for obtaining DA records, and 
after the request is received by the official designated to respond, 
Army Activities shall endeavor to provide a final response determination 
within the statutory 20 working days. If a significant number of 
requests, or the complexity of the requests prevent a final response 
determination within the statutory time period, Army Activities shall 
advise the requester of this fact, and explain how the request will be 
responded to within its multitrack processing system. A final response 
determination is notification to the requester that the records are 
released or partially released, or will be released on a certain date, 
or the records are withheld under an appropriate FOIA exemption, or the 
records cannot be provided for one or more of the other reasons. Interim 
responses acknowledging receipt of the request, negotiations with the 
requester concerning the scope of the request, the response timeframe, 
and fee agreements are encouraged; however, such actions do not 
constitute a final response determination pursuant to the FOIA. If a 
request fails to meet minimum requirements as set forth, Activities 
shall contact the requester and inform the requester what would be 
required to perfect or correct the request, or to limit the scope to 
allow for the most expeditious response. The statutory 20 working day 
time limit applies upon receipt of a perfected or correct FOIA request. 
Before mailing a final response determination and those records or 
portions thereof deemed releasable, records custodians will obtain a 
written legal opinion from their servicing judge advocate concerning the 
releasibility of the requested records. The legal opinion must cite 
specific exemptions, appropriate justification, and identify if the 
records were processed under the FOIA, PA (including the applicable 
systems notice), or both.
    (1) Multi-track processing. When an Army Activity has a significant 
number of pending requests that prevents a response determination being 
made within 20 working days, the requests

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shall be processed in a multitrack processing system, based on the date 
of receipt, the amount of work and time involved in processing the 
requests, and whether the request qualifies for expedited processing. 
Army Activities may establish as many processing queues as they wish; 
however, as a minimum, three processing tracks shall be established, all 
based on a first-in, first-out concept, and rank ordered by the date of 
receipt of the request. One track shall be a processing queue for simple 
requests, one track for complex requests, and one track shall be a 
processing queue for expedited processing. Determinations as to whether 
a request is simple or complex shall be made by each Army Activity. Army 
Activities shall provide a requester whose request does not qualify for 
the fastest queue an opportunity to limit the scope of the request in 
order to qualify for the fastest queue. This multitrack processing 
system does not obviate an Activity's' responsibility to exercise due 
diligence in processing requests in the most expeditious manner 
possible.
    (2) Expedited processing. A separate queue shall be established for 
requests meeting the test for expedited processing. Expedited processing 
shall be granted to a requester after the requester requests such and 
demonstrates a compelling need for the information. Notice of the 
determination as to whether to grant expedited processing in response to 
a requester's compelling need shall be provided to the requester within 
10 calendar days after receipt of the request in the Army Activity's 
office that will determine whether to grant expedited processing. Once 
the Army Activity has determined to grant expedited processing, the 
request shall be processed as soon as practicable. Actions by Army 
Activities to initially deny or affirm the initial denial on appeal of a 
request for expedited processing and a failure to respond in a timely 
manner shall be subject to judicial review. Initial determination of 
denials of expedited processing will be immediately forwarded to the IDA 
for action. If the IDA upholds the denial, the requester will be 
informed of his or her right to appeal.
    (i) Imminent threat. Compelling need means that the failure to 
obtain the records on an expedited basis could reasonably be expected to 
pose an imminent threat to the life or physical safety of an individual.
    (ii) Alleged Federal Government activity. Compelling need also means 
that the information is urgently needed by an individual primarily 
engaged in disseminating information in order to inform the public 
concerning actual or alleged Federal Government activity. An individual 
primarily engaged in disseminating information means a person whose 
primary activity involves publishing or otherwise disseminating 
information to the public. Representatives of the news media would 
normally qualify as individuals primarily engaged in disseminating 
information. Other persons must demonstrate that their primary activity 
involves publishing or otherwise disseminating information to the 
public.
    (iii) General public interest. Urgently needed means that the 
information has a particular value that will be lost if not disseminated 
quickly. Ordinarily this means a breaking news story of general public 
interest. However, information of historical interest only or 
information sought for litigation or commercial activities would not 
qualify, nor would a news media publication or broadcast deadline 
unrelated to the news breaking nature of the information.
    (iv) Certified statement. A demonstration of compelling need by a 
requester shall be made by a statement certified by the requester to be 
true and correct to the best of his or her knowledge. This statement 
must accompany the request in order to be considered and responded to 
within the 10 calendar days required for decisions on expedited access.
    (v) Other reasons for expedited processing. Another reason that 
merits expedited processing by Army FOIA offices is an imminent loss of 
substantial due process rights. A demonstration of imminent loss of 
substantial due process rights shall be made by a statement certified by 
the requester to be true and correct to the best of his or her 
knowledge. The statement mentioned in paragraph (iv) of this section 
must

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accompany the request in order to be considered and responded to within 
the 10 calendar days required for decisions on expedited access. Once 
the decision has been made to expedite the request for this reason, the 
request may be processed in the expedited processing queue behind those 
requests qualifying for compelling need.
    (vi) Administrative appeals. These same procedures also apply to 
requests for expedited processing of administrative appeals.
    (e) Use of exemptions. It is Army policy to make records publicly 
available, unless the record qualifies for exemption under one or more 
of the nine exemptions. Discretionary releases of information protected 
under the FOIA should be made only after full and deliberate 
consideration of the institutional, commercial, and personal privacy 
interests that could be implicated by disclosure of the information. 
When Army activities determine to withhold information using one of the 
nine exemptions, the Department of Justice (DOJ) will defend the 
position unless it is found to be lacking a Sound Legal Basis for 
denial.
    (1) 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 when 
appropriate; he or she must exercise this discretion in a reasonable 
manner, within regulations consistent with current policy 
considerations. The excised copies shall clearly reflect the denied 
information by the use of brackets, indicating the removal of 
information. Bracketed areas must be sufficiently removed so 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.
    (2) If the document is declassified, all classification markings 
shall be lined through with a single black line, which will allow the 
markings to be read. The document shall then be stamped 
``Unclassified.''
    (f) 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 the DA reading room in paper form, as well as 
electronically, to facilitate public access. Exempt records disclosed 
without authorization by the appropriate Army FOIA official 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.
    (g) Creating a record. A record must exist and be in the possession 
and control of DA at the time of the search to be considered subject to 
this part and the FOIA. There is no obligation to create or compile a 
record to satisfy a FOIA request. An Army Activity, 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 that would 
be charged for providing the existing record. Fee assessments shall be 
in accordance with subpart F of this part.
    (1) Concerning 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 a record, programming, or 
particular format are questionable, Army Activities should apply a 
standard of reasonableness.
    (2) 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. As 
used in this sense, a significant expenditure of resources in both time 
and/or manpower that would cause a significant interference with the 
operation of

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the Army Activity's automated information system would not be a business 
as usual approach.
    (h) Description of requested record. Identification of the record 
desired is the responsibility of the requester. The requester must 
provide a description of the desired record that enables the Government 
to locate the record with a reasonable amount of effort. In order to 
assist Army Activities in conducting more timely searches, requesters 
should endeavor to provide as much identifying information as possible. 
When an Army Activity receives a request that does not reasonably 
describe the requested record, it shall contact the requester and afford 
the requester the opportunity to perfect the request. Army Activities 
are not obligated to act on the request until the requester perfects the 
request. When practicable, Army Activities shall contact the requester 
to aid in identifying the records sought and in reformulating the 
request to reduce the burden on the agency in complying with the Act. DA 
FOIA officials will reply to unclear requests by: Describing the defects 
in the requests; explaining the types of information described below, 
and ask the requester for such information; and explaining that no 
action will be taken on the request until the requester replies to the 
letter.
    (1) The following guidelines are provided to deal with generalized 
requests and are based on the principle of reasonable effort. 
Descriptive information about a record may be divided into two broad 
categories: Category I is file-related and includes information such as 
type of record (for example, memorandum), title, index citation, subject 
area, date of record creation, and originator; 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.
    (2) Generally, a record is not reasonably described unless the 
description contains sufficient Category I information to permit an 
organized, non random search based on the Army Activity's filing 
arrangements and existing retrieval systems, or unless the record 
contains sufficient Category II information to permit an inference of 
the Category I elements needed to conduct such a search.
    (3) 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 in a PA system of records that can be retrieved by personal 
identifiers need be searched. However, if an Army Activity has reason to 
believe that records on the requester may exist in a record system other 
than a PA system, the Army Activity shall search that system under the 
provisions of the FOIA. In either case, Army Activities may request a 
reasonable description of the records desired before searching for such 
records under the provisions of the FOIA and the PA. If the record is 
required to be released under the FOIA, the Privacy Act does not bar its 
disclosure.
    (4) The previous guidelines notwithstanding, the decision of the 
Army Activity concerning reasonableness of description must be based on 
knowledge of its files. If the description enables Army Activity 
personnel to locate the record with reasonable effort, the description 
is adequate. The fact that a FOIA request is broad or burdensome in its 
magnitude does not, in and of itself, entitle an Army Activity to deny 
the request on the ground that it does not reasonably describe the 
records sought. The key factor is the ability of the Army Activity's 
staff to reasonably ascertain and locate which records are being 
requested.
    (i) Referrals. The Army FOIA referral policy is based upon the 
concept of the originator of a record making a release determination on 
its information. If an Army Activity receives a request for records 
originated by another Army Activity, it will contact the Army Activity 
to determine if it also received the request, and if not, obtain 
concurrence from the other Army Activity to refer the request. An Army 
Activity shall refer a FOIA request for a classified record that it 
holds to another Army Activity, DoD Component, or agency outside the 
DoD, if the record originated in another Army Activity or DoD Component 
or outside agency, or if the classification is derivative. In

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this situation, provide the record and a release recommendation on the 
record with the referral action. In either situation, the requester 
shall be advised of the action taken, unless exempt information would be 
revealed. While referrals to originators of information result in 
obtaining the best possible decision on release of the information, the 
policy does not relieve Army Activities from the responsibility of 
making a release decision on a record should the requester object to 
referral of the request and the record. Should this situation occur, 
Army Activities shall still coordinate with the originator of the 
information prior to making a release determination. A request received 
by an Army Activity having no records responsive to a request shall be 
referred routinely to another Army Activity, if the other Army Activity 
has reason to believe it has the requested records. Prior to notifying a 
requester of a referral to another Army Activity, the Army Activity 
receiving the initial request shall consult with the other Army Activity 
to determine if that Army Activity's association with the material is 
exempt. If the association is exempt, the Army Activity receiving the 
initial request will protect the association and any exempt information 
without revealing the identity of the protected Army Activity. The 
protected Army Activity should be responsible for submitting the 
justifications required in any litigation. Any Army Activity receiving a 
request that has been misaddressed shall refer the request to the proper 
address and advise the requester. Army Activities making referrals of 
requests for records shall include with the referral, a point of contact 
by name, a telephone number, and an e-mail address. If the office 
receiving the FOIA request does not know where the requested records are 
located, that activity will contact the DA, FOIA/PA Office, to determine 
the office where the request should be referred.
    (1) An Army Activity shall refer for response directly to the 
requester a FOIA request for a record that it holds to another Army 
Activity or agency outside the Army, if the record originated in the 
other Army Activity or outside agency. Whenever a record or a portion of 
a record is referred to another Army Activity or to a Government Agency 
outside of the Army for a release determination and direct response, the 
requester shall be informed of the referral, unless it has been 
determined that notification would reveal exempt information. Referred 
records shall only be identified to the extent consistent with security 
requirements.
    (2) An Army Activity may refer a request for a record that it 
originated to another Army Activity or agency when the other Army 
Activity or agency has a valid interest in the record, or the record was 
created for the use of the other Army Activity or agency. In such 
situations, provide the record and a release recommendation on the 
record with the referral action. Include a point of contact with the 
telephone number. An example of such a situation is a request for audit 
reports prepared by the U.S. Army 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. A FOIA request shall be referred to the appropriate Army 
Activity and the requester shall be notified of the referral, unless 
exempt information would be revealed. Another example is a record 
originated by an Army Activity or agency that involves foreign 
relations, and could affect an Army Activity or organization in a host 
foreign country. Such a request and any responsive records may be 
referred to the affected Army Activity or organization for consultation 
prior to a final release determination within DA.
    (3) Within DA, an Army Activity shall ordinarily refer a FOIA 
request and a copy of the record it holds but that originated with 
another Army Activity or that contains substantial information obtained 
from another Army Activity, to that Activity for direct response, after 
direct coordination and obtaining concurrence from the Activity. The 
requester then shall be notified of such referral. Army Activities shall 
not, in any case, release or deny such records without prior 
consultation with the other Army Activity.
    (4) Army Activities that receive referred requests shall answer them 
in

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accordance with the time limits established by the FOIA, this part, and 
their multitrack processing queues, based upon the date of initial 
receipt of the request at the referring Activity or agency.
    (5) Agencies outside DA that are subject to the FOIA.
    (i) An Army Activity may refer a FOIA request for any record that 
originated in an agency outside DA or that is based on information 
obtained from an outside agency to the agency for direct response to the 
requester after coordination with the outside agency, if that agency is 
subject to FOIA. Otherwise, the Army Activity must respond to the 
request.
    (ii) An Army Activity 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 DA 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, an Army Activity may only respond directly to the requester 
after coordination with the outside agency.
    (6) Army Activities that receive requests for records of the 
National Security Council (NSC), the White House, or the White House 
Military Office (WHMO) shall process the requests. Army records in which 
the NSC or White House has a concurrent reviewing interest, and NSC, 
White House, or WHMO records discovered in Army Activity's files shall 
be forwarded through DA, FOIA/PA Office, to the Washington Headquarters 
Services, Office For Freedom of Information and Security Review 
(OFOISR). The OFOISR shall coordinate with the NSC, White House, or WHMO 
and return the records to the originating agency after coordination.
    (7) To the extent referrals are consistent with the policies 
expressed by this section, referrals between offices of the same Army 
Activity are authorized.
    (8) On occasion, the DA receives FOIA requests for Government 
Accountability Office (GAO) records containing Army information. Even 
though the GAO is outside the Executive Branch, and not subject to the 
FOIA, all FOIA requests for GAO documents containing Army information 
received either from the public or on referral from the GAO shall be 
processed under the provisions of the FOIA.
    (j) 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. Army Activities may charge for the service at a 
rate of $5.20 for each authentication.
    (k) Records management. FOIA records shall be maintained and 
disposed of in accordance with the National Archives and Records 
Administration (NARA) General Records Schedule and DoD Component records 
schedules.
    (l) Record-keeping requirements in accordance with the Army Records 
Information Management System (ARIMS). The records listed below are 
required by ARIMS in the conduct of the daily business of the Army to 
provide adequate and proper documentation to protect the rights and 
interests of individuals and the Federal Government. The full 
description of the records and their disposition is found at https://
www2.arims.army.mil.
    (1) FOIA requests, access, and denials;
    (2) FOIA administrative files;
    (3) FOIA appeals;
    (4) FOIA controls;
    (5) FOIA reports;
    (6) Access to information files;
    (7) Safeguarded nondefense information releases;
    (8) Nonsafeguarded information releases;
    (9) Unauthorized disclosure reports;
    (10) Acknowledgement; and
    (11) Initial Denial Authority designations/appointments.
    (m) Relationship between the FOIA and the Privacy Act (PA). Not all 
requesters are knowledgeable of the appropriate statutory authority to 
cite when requesting records, nor are all of them aware of appeal 
procedures. In some instances, they may cite neither Act, but will imply 
one or both Acts. For these

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reasons, the below guidelines are provided to ensure that requesters 
receive the greatest amount of access rights under both Acts.
    (1) If the record is required to be released under the FOIA, the PA 
does not bar its disclosure. Unlike the FOIA, the PA applies only to 
U.S. citizens and aliens lawfully admitted for permanent residence.
    (2) Requesters who seek records about themselves contained in a PA 
system of records and who cite or imply only the PA, will have their 
requests processed under the provisions of both the PA and the FOIA. If 
the PA system of records is exempt from the provisions of 5 U.S.C. 
552a(d)(1) and if the records, or any portion thereof, are exempt under 
the FOIA, the requester shall be so advised with the appropriate PA and 
FOIA exemption. Appeals shall be processed under both Acts.
    (3) Requesters who seek records about themselves that are not 
contained in a Privacy Act system of records and who cite or imply the 
PA will have their requests processed under the provisions of the FOIA, 
since the PA does not apply to these records. Appeals shall be processed 
under the FOIA.
    (4) Requesters who seek records about themselves that 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 provisions of both the PA 
and the FOIA. If the PA system of records is exempt from the provisions 
of 5 U.S.C. 552a(d)(1) and if the records, or any portion thereof, are 
exempt under the FOIA, the requester shall be so advised with the 
appropriate PA and FOIA exemption. Appeals shall be processed under both 
Acts.
    (5) Requesters who seek access to agency records that are not part 
of a PA system of records, and who cite or imply the PA and FOIA, will 
have their requests processed under the FOIA since the PA does not apply 
to these records. Appeals shall be processed under the FOIA. Requesters 
who seek access to agency records and who cite or imply the FOIA will 
have their requests and appeals processed under the FOIA.
    (6) Requesters shall be advised in the final response letter, which 
Act(s) was (were) used, inclusive of appeal rights as outlined in 
paragraphs (m)(1) through (5) of this section.
    (n) Non-responsive information in responsive records. Army 
Activities shall interpret FOIA requests liberally when determining 
which records are responsive to the requests, and may release non-
responsive information. However, should Army Activities desire to 
withhold non-responsive information, the following steps shall be 
accomplished:
    (1) Consult with the requester, and ask if the requester views the 
information as responsive, and if not, seek the requester's concurrence 
to delete the non-responsive information without a FOIA exemption. 
Reflect this concurrence in the response letter.
    (2) If the responsive record is unclassified, and the requester does 
not agree to deletion of non-responsive information without a FOIA 
exemption, release all non-responsive and responsive information that is 
not exempt. For non-responsive information that is exempt, notify the 
requester that even if the information were determined responsive, it 
would likely be exempt under (state appropriate exemption(s)). Advise 
the requester of the right to request this information under a separate 
FOIA request. The separate request shall be placed in the same location 
within the processing queue as the original request.
    (3) If the responsive record is classified, and the requester does 
not agree to deletion of non-responsive information without a FOIA 
exemption, release all unclassified responsive and non-responsive 
information that is not exempt. The classified, non-responsive 
information need not be reviewed for declassification at this point. 
Advise the requester that even if the classified information were 
determined responsive, it would likely be exempt under 5 U.S.C. 
552(b)(1), and other exemptions if appropriate. Advise the requester of 
the right to request this information under a separate FOIA request. The 
separate request shall be placed in the same location within the 
processing queue as the original request.
    (o) Honoring form or format requests. Army Activities shall provide 
the

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record in any form or format requested by the requester if the record is 
readily reproducible in that form or format. Army Activities shall make 
reasonable efforts to maintain their records in forms or formats that 
are reproducible. In responding to requests for records, Army Activities 
shall make reasonable efforts to search for records in electronic form 
or format, except when such efforts would significantly interfere with 
the operation of the Army Activities' automated information system. Such 
determinations shall be made on a case-by-case basis.



                      Subpart B_FOIA Reading Rooms



Sec. 518.9  Reading room.

    (a) Reading room location. The DA shall provide an appropriate 
facility or facilities where the public may inspect and copy or have 
copied the records described in paragraphs (b)(1) through (4) of this 
section. In addition to the records described, DA may elect to place 
other records in their reading room, and also make them electronically 
available to the public. The Army may share reading room facilities with 
DoD Components if the public is not unduly inconvenienced, and also may 
establish decentralized reading rooms. 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 
Public Reading Room is operated by the DA, FOIA/PA Office.
    (b) Record availability. The FOIA requires that records described in 
5 U.S.C. 552(a)(2)(A), (B), (C), and (D) created on or after November 1, 
1996, shall be made available electronically, as well as in hard copy in 
the FOIA reading room for inspection and copying, unless such records 
are published and copies are offered for sale. All portions determined 
to be exempt in accordance with 5 U.S.C. 552 (reference (a)) shall be 
deleted from all 5 U.S.C. 552(a)(2) records made available to the 
general public. In every case, justification for the deletion must be 
fully explained in writing, and the extent of such deletion shall be 
indicated on the record that is made publicly available, unless such 
indication would harm an interest protected by an exemption under which 
the deletion was made. If technically feasible, the extent of the 
deletion in electronic records or any other form of record shall be 
indicated at the place in the record where the deletion was made. 
However, the Army may publish in the Federal Register a description of 
the basis upon which it will delete identifying details of particular 
types of records to avoid clearly unwarranted invasions of privacy, or 
competitive harm to business submitters. In appropriate cases, the Army 
may refer to this description rather than write a separate justification 
for each deletion. 5 U.S.C. 552(a)(2)(A), (B), (C), and (D) records are:
    (1) (a)(2)(A) records. Final opinions, including concurring and 
dissenting opinions, and orders made in the adjudication of cases, as 
defined in 5 U.S.C. 551, that may be cited, used, or relied upon as 
precedents in future adjudications;
    (2) (a)(2)(B) records. Statements of policy and interpretations that 
have been adopted by the agency that are not published in the Federal 
Register; and
    (3) (a)(2)(C) records. Administrative staff manuals and 
instructions, or portions thereof that establish Army 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 Army. Examples of 
manuals and instructions not normally made available are:
    (i) 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; and
    (ii) Operations and maintenance manuals and technical information 
concerning munitions, equipment, systems, and intelligence activities.
    (4) (a)(2)(D) records. Those 5 U.S.C. 552(a)(3) records, which 
because of the nature of the subject matter, have become or are likely 
to become the subject of subsequent requests for substantially the same 
records. These records

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are referred to as FOIA-processed (a)(2) records.
    (i) Army Activities shall decide on a case by case basis whether 
records fall into this category, based on previous experience of the 
Army Activity with similar records; particular circumstances of the 
records involved, including their nature and the type of information 
contained in them; or the identity and number of requesters and whether 
there is widespread press, historic, or commercial interest in the 
records.
    (ii) This provision is intended for situations where public access 
in a timely manner is important, and it is not intended to apply where 
there may be a limited number of requests over a short period of time 
from a few requesters. Army Activities may remove the records from this 
access medium when the appropriate officials determine that access is no 
longer necessary.
    (iii) Should a requester submit a FOIA request for FOIA-processed 
(a)(2) records, and insist that the request be processed, Army 
Activities shall process the FOIA request. However, Army Activities have 
no obligation to process a FOIA request for 5 U.S.C. 552(a)(2)(A), (B), 
and (C) records because these records are required to be made public and 
not FOIA-processed under paragraph (a)(3) of the FOIA.



Sec. 518.10  ``(a)(2)'' materials.

    (a) The DA FOIA/PA Office shall maintain in the facility an index of 
materials described in paragraphs (b)(1) through (4) of Sec. 518.9, 
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 part.
    (b) The DA FOIA/PA Office 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 of 
this part.
    (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 Army convenience.
    (d) A general index of FOIA-processed (a)(2) records shall be made 
available to the public, both in hard copy and electronically.



Sec. 518.11  Other materials.

    (a) Any available index of Army 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 the Army FOIA Public Reading 
Room, and electronically to the public.
    (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 to the public in FOIA reading 
rooms for inspection and copying, and by electronic means. 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



Sec. 518.12  General.

    Records that meet the exemption criteria of the FOIA 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 a FOIA request.

[[Page 135]]



Sec. 518.13  FOIA exemptions.

    The following types of records may be withheld in whole or in part 
from public disclosure under the FOIA, unless otherwise prescribed by 
law. A discretionary release of a record to one requester shall prevent 
the withholding of the same record under a FOIA exemption if the record 
is subsequently requested by someone else. However, a FOIA exemption may 
be invoked to withhold information that is similar or related to that 
which has been the subject of a discretionary release. 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 interest. However, if the subject of the record is the 
requester for the record and the record is contained in a PA system of 
records, it may only be denied to the requester if withholding is both 
authorized by AR 25-71 and by a FOIA exemption.
    (a) Number 1 (5 U.S.C. 552 (b)(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. 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 DoD 5200.1-R apply. 
If the information qualifies as exemption 1 information, there is no 
discretion regarding its release. 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, Army Activities 
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) Compilations of items of information that are individually 
unclassified may be classified if the compiled information reveals 
additional association or relationship that meets the standard for 
classification under an existing executive order for classification and 
DoD 5200.1-R, and is not otherwise revealed in the individual items of 
information.
    (b) Number 2 (5 U.S.C. 552(b)(2)). Those related solely to the 
internal personnel rules and practices of the DoD or any of its 
Components. This exemption has two profiles, high (b)(2) and low (b)(2). 
Activities are encouraged to consult the DA, FOIA/PA Office, and the 
U.S. DoJ ``Freedom of Information Act Guide & Privacy Act Overview'' for 
a more in depth discussion on the legal history of the use of the low 
(b)(2) exemption. When only a minimal Government interest would be 
affected (administrative burden), Army Activities shall apply the sound 
legal basis standard regarding disclosure of the information. Army 
Activities shall apply the low 2 exemption as applicable.
    (1) Records qualifying under high (b)(2) are those containing or 
constituting statutes, rules, regulations, orders, manuals, directives, 
instructions, security classification guides, and sensitive but 
unclassified information related to America's homeland security and 
critical infrastructure information the release of which would allow 
circumvention of these records thereby substantially hindering the 
effective performance or present an unwarranted risk of adverse impact 
on the ability of other agencies to protect other important records of a 
significant function of the DA. Examples include:
    (i) Those operating rules, guidelines, and manuals for Army 
investigators, inspectors, auditors, or examiners that must remain 
privileged in order for the Army Activity 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 qualifications of candidates for employment, entrance on duty, 
advancement, or promotion; and

[[Page 136]]

    (iii) Computer software, the release of which would allow 
circumvention of a statute, DoD or Army rules, regulations, orders, 
manuals, directives, or instructions. In this situation, the use of the 
software must be closely examined to ensure a circumvention possibility 
exists.
    (2) Records qualifying under the low (b)(2) 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 the records. Examples include rules of personnel's use of 
parking facilities or regulation of lunch hours, statements of policy as 
to sick leave, and administrative data such as file numbers, mail 
routing stamps, initials, data processing notations, brief references to 
previous communications, and other like administrative markings. Army 
Activities shall apply the low 2 exemption as applicable.
    (c) Number 3 (5 U.S.C. 552(b)(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. The DA, FOIA/PA Office, maintains a list of (b)(3) 
statutes used within the DoD, and provides updated lists of these 
statutes to Army Activities on a periodic basis. A few examples of such 
statutes are:
    (1) Personnel in Overseas, Sensitive, or Routinely Deployable Units: 
nondisclosure of personally identifying information, 10 U.S.C. 130(b). 
Additionally, the names and duty addresses (postal and/or e-mail) of 
Army military and civilian personnel who are assigned to units that are 
sensitive, routinely deployable, or stationed in foreign territories can 
constitute a clearly unwarranted invasion of personal privacy and may 
also be withheld in accordance with FOIA Exemption 3. Names and duty 
addresses (postal and/or e-mail) published in 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, in 
accordance with 10 U.S.C. 130 `Personnel in Overseas, Sensitive, or 
Routinely Deployable Units';
    (2) Classification and Declassification of Restricted Data, 42 
U.S.C. 2162;
    (3) Disclosure of Classified Information, 18 U.S.C. 798(a);
    (4) Authority to Withhold from Public Disclosure Certain Technical 
Data, 10 U.S.C. 130 and DoDD 5230.25;
    (5) Confidentiality of Medical Quality Assurance Records: Qualified 
Immunity for Participants, 10 U.S.C. 1102(f);
    (6) Physical Protection of Special Nuclear Material: Limitation on 
Dissemination of Unclassified Information, 10 U.S.C. 128;
    (7) Protection of Intelligence Sources and Methods, 50 U.S.C. 403-
3(c)(6);
    (8) Prohibition on Release of Contractor Submitted Proposals, 10 
U.S.C. 2305(g);
    (9) Restrictions on Disclosing and Obtaining Contractor Bid or 
Proposal Information or Source Selection Information, 41 U.S.C. 423; and
    (10) Secrecy of Certain Inventions and Filing Applications in a 
Foreign Country, 35 U.S.C. 181-188. Any records containing information 
relating to inventions that are the subject of patent applications on 
which Patent Secrecy Orders have been issued.
    (d) Number 4 (5 U.S.C. 552(b)(4)). Those containing trade secrets or 
commercial or financial information that an Army Activity 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. Commercial or financial information submitted on a 
voluntary basis, absent any exercised authority prescribing criteria for 
submission is protected

[[Page 137]]

without any requirement to show competitive harm. If the information 
qualifies as exemption 4 information, there is no discretion in its 
release. Examples include:
    (1) Commercial or financial information received in confidence in 
connection with loans, bids, contracts, or proposals set forth in or 
incorporated by reference in a contract entered into between the Army 
Activity and the offeror that submitted the proposal, as well as other 
information received in confidence or privileged, such as trade secrets, 
inventions, discoveries, or other proprietary data. Additionally, when 
the provisions of 10 U.S.C. 2305(g) and 41 U.S.C. 423 are met, certain 
proprietary and source selection information may be withheld under 
exemption 3;
    (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 DA;
    (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 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. 2320-2311 and DoD Federal Acquisition Regulation Supplement 
(DFARS), subpart 27.4. 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 DoDD 5230.25;
    (7) Computer software, which is copyrighted in accordance with 17 
U.S.C. 106, `Exclusive rights in Copyrighted Works,' the disclosure of 
which would have an adverse impact on the potential market value of a 
copyrighted work; and
    (8) Proprietary information submitted strictly on a voluntary basis, 
absent any exercised authority prescribing criteria for submission. 
Examples of exercised authorities prescribing criteria for submission 
are statutes, Executive Orders, regulations, invitations for bids, 
requests for proposals, and contracts. Submission of information under 
these authorities is not voluntary.
    (e) Number 5 (5 U.S.C. 552(b)(5)). Those containing information 
considered privileged in litigation, primarily under the deliberative 
process privilege. Except as provided in paragraphs (e)(1) through (5) 
of this section, internal advice, recommendations, and subjective 
evaluations, as contrasted with factual matters that are reflected in 
deliberative records pertaining to the decision-making process of an 
agency, whether within or among agencies (as defined in 5 U.S.C. 
552(e)), or within or among Army Activities. In order to meet the test 
of this exemption, the record must be both deliberative in nature, as 
well as part of a decision-making process. Merely being an internal 
record is insufficient basis for withholding under this exemption. Also 
potentially exempted are records pertaining to the attorney-client 
privilege and the attorney work-product privilege. Discretionary 
disclosure decisions should be made only after full and deliberate 
consideration of the institutional, commercial, and personal privacy 
interests that could be implicated by disclosure of the information.
    (1) Examples of the deliberative process include:
    (i) The non-factual portions of staff papers, to include after-
action reports, lessons learned, and situation reports containing staff 
evaluations, advice, opinions, or suggestions;

[[Page 138]]

    (ii) Advice, suggestions, or evaluations prepared on behalf of the 
DA 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 non-factual 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 interest;
    (vi) 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 Army Activities, when these records have 
traditionally been treated by the courts as privileged against 
disclosure in litigation; and
    (vii) Planning, programming, and budgetary information that is 
involved in the defense planning and resource allocation process.
    (2) If any such intra- or inter-agency 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 Army, then it should not be withheld under the FOIA. If, however, 
the information hypothetically would not be released at all, or would 
only be released in a particular case during civil discovery where a 
party's particularized showing of need might override a privilege, then 
the record may be withheld. Discovery is the formal process by which 
litigants obtain information from each other for use in the litigation. 
Consult with legal counsel to determine whether exemption 5 material 
would be routinely made available through the discovery process.
    (3) Intra- or inter-agency 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 incorporated by reference in the record containing 
the decision.
    (f) Number 6 (5 U.S.C. 552(b)(6)). Information in personnel and 
medical files, as well as similar personal information in other files, 
and lists of personally identifying information of Army personnel, that, 
if disclosed to a requester, other than the person about whom the 
information is about, 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. If the information qualifies 
as exemption 6 information, there is no discretion regarding its 
release.
    (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

[[Page 139]]

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; and
    (ii) Files containing reports, records, and other material 
pertaining to personnel matters in which administrative action, 
including disciplinary action, may be taken.
    (2) Army components shall ordinarily withhold lists of names 
(including active duty military, civilian employees, contractors, 
members of the National Guard and Reserves, and military dependents) and 
other personally identifying information, including lists of e-mail 
addresses of personnel currently or recently assigned within a 
particular component, unit, organization, or office within the Army. 
Home addresses, including private e-mail addresses, are normally not 
releasable without the consent of the individuals concerned. This 
includes lists of home addresses and military quarters' addressees 
without the occupant's name.
    (i) Privacy Interest. 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 Federal Government expended funds to 
prepare, index and maintain records on personal information, and the 
fact that a requester invokes FOIA to obtain these records indicates the 
information is not freely available.
    (ii) The right to privacy of deceased persons is not entirely 
settled, but the majority rule is that death extinguishes their privacy 
rights. However, particularly sensitive, graphic, personal details about 
the circumstances surrounding an individual's death may be withheld when 
necessary to protect the privacy interests of surviving family members. 
Even information that is not particularly sensitive in and of itself may 
be withheld to protect the privacy interests of surviving family members 
if disclosure would rekindle grief, anguish, pain, embarrassment, or 
cause a disruption of their peace of minds. Additionally, the deceased's 
social security number should be withheld since it is used by the next 
of kin to receive benefits. Disclosures of the deceased's social 
security number may be made to the immediate next of kin.
    (iii) A clearly unwarranted invasion of the privacy of third parties 
identified in a personnel, medical or similar record constitutes a basis 
for deleting those reasonably segregable portions of that record. When 
withholding third party personal information from the subject of the 
record and the record is contained in a Privacy Act system of records, 
consult with legal counsel.
    (iv) 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, Army 
Activities shall neither confirm nor deny the existence or nonexistence 
of the record being requested. This is a ``Glomar'' response, and 
exemption 6 must be cited in the response. Additionally, in order to 
ensure personal privacy is not violated during referrals, Army 
Activities shall coordinate telephonically or in person with other Army 
Activities or DoD Components or Federal Agencies before referring a 
record that is exempt under the ``Glomar'' concept. See Phillippi v. 
CIA, 546 F.2d 1009 (DC Cir. 1976).
    (v) 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. 
Refusal to confirm or deny should not be used when:
    (A) The person whose personal privacy is in jeopardy has provided 
the requester a waiver of his or her privacy rights;
    (B) The person initiated or directly participated in an 
investigation that lead to the creation of an agency record seeks access 
to that record; or
    (C) The person whose personal privacy is in jeopardy is deceased, 
the

[[Page 140]]

Agency is aware of that fact, and disclosure would not invade the 
privacy of the deceased's family.
    (g) Number 7 (5 U.S.C. 552(b)(7)). Records or information compiled 
for law enforcement purposes, i.e., civil, criminal, or military, 
including the implementation of Executive Orders or regulations issued 
pursuant to law. This exemption may be invoked to prevent disclosure of 
documents not originally created for, but later gathered for law 
enforcement purposes. With the exception of parts (C) and (F), this 
exemption is discretionary. If information qualifies as exemption (7)(C) 
or (7)(F) information, there is no discretion in its release.
    (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 law enforcement 
proceedings (5 U.S.C. 552(b)(7)(A));
    (ii) Would deprive a person of the right to a fair trial or to an 
impartial adjudication (5 U.S.C. 552(b)(7)(B));
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of the personal privacy of a living person, or to surviving 
family members of an individual identified in such a record (5 U.S.C. 
552(b)(7)(C));
    (iv) 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, 
Activities shall neither confirm nor deny the existence or nonexistence 
of the record being requested. This is a ``Glomar'' response, and 
exemption (7)(C) must be cited in the response. Additionally, in order 
to ensure personal privacy is not violated during referrals, Army 
Activities shall coordinate with other Army Activities or DoD Components 
or Federal Agencies before referring a record that is exempt under the 
``Glomar'' concept;
    (v) 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;
    (vi) Refusal to confirm or deny should not be used when the person 
whose personal privacy is in jeopardy has provided the requester with a 
waiver of his or her privacy rights; or the person whose personal 
privacy is in jeopardy is deceased, and the Agency is aware of that fact 
and disclosure would not invade the privacy of the deceased's family;
    (vii) Could reasonably be expected to disclose the identity of a 
confidential source, including a source within DoD, a State, local, or 
foreign agency or authority, or any private institution that furnishes 
the information on a confidential basis; and 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 (5 
U.S.C. 552(b)(7)(D));
    (viii) 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 (5 U.S.C. 
552(b)(7)(E)); or
    (ix) Could reasonably be expected to endanger the life or physical 
safety of any individual (5 U.S.C. 552(b)(7)(F)).
    (2) Some examples of exemption 7 are:
    (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 DoD when no 
indictment has been obtained or any civil action filed against them by 
the United States; and
    (iii) Information obtained in confidence, expressed or implied, in 
the course of a criminal investigation by a criminal law enforcement 
agency or office within an Army Activity or a DoD

[[Page 141]]

Component, or a lawful national security intelligence investigation 
conducted by an authorized agency or office within an Army Activity or 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), is 
not diminished.
    (4) Excluded from exemption 7 are two situations applicable to DoD. 
(Activities considering invoking an exclusion based on the following 
scenarios should first consult through legal counsel, to the DoJ, Office 
of Information and Privacy (DoJ OIP).
    (i) Whenever a request is made that 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, Activities may, during only such times as that circumstance 
continues, treat the records or information as not subject to the FOIA. 
In such a 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 an Army Activity or 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 
Activity 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 5 U.S.C. 552(b)(7), 
the response to the requester will state that no records were found.
    (h) Number 8 (5 U.S.C. 552 (b)(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 (5 U.S.C. 552 (b)(9)). Those containing geological and 
geophysical information and data (including maps) concerning wells.



                     Subpart D_For Official Use Only



Sec. 518.14  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 because disclosure would cause harm to an 
interest protected by one or more FOIA exemptions 2 through 9 (see 
Subpart C of this part) shall be considered as being for official use 
only (FOUO). No other material shall be considered FOUO and FOUO is not 
authorized as an additional form of classification to protect national 
security interests. Additional information on FOUO and other controlled, 
unclassified information may be found in DoD 5200.1-R, ``Information 
Security Program'' or by contacting the DA FOIA/PA Office.



               Subpart E_Release and Processing Procedures



Sec. 518.15  General provisions.

    (a) Since the policy of the DoD is to make the maximum amount of 
information available to the public consistent with its other 
responsibilities, written requests for an Army record made under the 
provisions of 5 U.S.C. 552 (a)(3) of the FOIA may be denied only when:
    (1) The record is subject to one or more of the exemptions of the 
FOIA;
    (2) The record has not been described well enough to enable the Army 
Activity to locate it with a reasonable amount of effort by an employee 
familiar with the files; or
    (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 Army Activity concerned. 
When personally identifiable information in a record is requested by the 
subject of the record or his attorney, notarization of the request, or a 
statement certifying under

[[Page 142]]

the penalty of perjury that their identity is true and correct may be 
required. Additionally, written consent of the subject of the record is 
required for disclosure from a PA system of records, to include the 
subject's attorney.
    (4) 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 
part and with the following considerations:
    (i) 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.
    (ii) 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 its proponent under AR 
380-5, paragraphs 2-204, 2-600, 2-800, and 2-801. In such cases, other 
FOIA exemptions may also apply.
    (iii) 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.
    (iv) 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 
12958 as amended, section 1.6(d), and AR 380-5, paragraph 2-204, and 
with approval of the Army OGC.
    (5) OPSEC/FOIA advisors will; advise persons processing FOIA 
requests on related OPSEC requirements; help custodians of requested 
documents prepare requests for classification evaluations; and help 
custodians of requested documents identify the parts of documents that 
must remain classified under this section and AR 380-5.
    (6) 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.
    (b) The provisions of the FOIA are reserved for persons with private 
interests as opposed to U.S. Federal Agencies seeking official 
information. Requests from private persons will be made in writing, and 
should clearly show all other addressees within the Federal Government 
to which the request was also sent. This procedure will reduce 
processing time requirements, and ensure better inter- and intra-agency 
coordination. However, if the requester does not show all other 
addressees to which the request was also sent, Army Activities shall 
still process the request. Army Activities should encourage requesters 
to send requests by mail, facsimile, or by electronic means. Disclosure 
of records to individuals under the FOIA is considered public release of 
information, except as provided in this paragraph. 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 statutory 20 working day limit applies.
    (1) Medical records. Commanders or chiefs of medical treatment 
facilities will release information:
    (i) On the condition of sick or injured patients to the patient's 
relatives to the extent permitted by law and regulation.
    (ii) 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.

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    (iii) That a diagnosis of psychosis has been made to the nearest 
known relative or to the person named by the patient.
    (iv) On births, deaths, and cases of communicable diseases to local 
officials (if required by local laws).
    (v) 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 or dentist chosen by the 
patient. If the patient is adjudged insane, or dies, the copies will be 
released, on written request, to the patient's next of kin or legal 
representative.
    (vi) 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.
    (vii) 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 substance abuse program.
    (viii) 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 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.
    (2) Military personnel records. Military personnel records will be 
released under these conditions:
    (i) 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;
    (ii) 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;
    (iii) 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; or
    (iv) 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.
    (3) Civilian personnel records. Civilian Personnel Officers (CPO) 
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 
deceased, 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.
    (4) Accused persons. 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:

[[Page 144]]

    (i) The following information concerning persons accused of an 
offense may be released by the convening authority to public news 
agencies or media. The accused's name, grade or rank, unit, regular 
assigned duties, and other information as allowed by AR 25-71, paragraph 
3-3a. The substance or text of the offense of which the person is 
accused. 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. 
The type and place of custody, if any;
    (ii) 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 unless it serves a law enforcement function. The following 
kinds of information will not be released: Observations or comments on 
an accused's character and demeanor, including those at the time of 
apprehension and arrest or during pretrial custody. Statements, 
admissions, confessions, or alibis attributable to an accused, or the 
fact of refusal or failure of the accused to make a statement. 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. 
Statements as to the identity, credibility, or testimony of prospective 
witnesses. Statements concerning evidence or argument in the case, 
whether or not that evidence or argument may be used at the trial. Any 
opinion on the accused's guilt. Any opinion on the possibility of a plea 
of guilty to the offense charged, or of a plea to a lesser offense;
    (iii) Other considerations. 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 360-1;
    (iv) Fugitives from justice. This section does not restrict the 
release of information to enlist public aid in apprehending a fugitive 
from justice; or
    (v) Exceptional cases. Permission to release information from 
military personnel records to public news agencies or media may be 
requested from The Judge Advocate General (TJAG). Requests for 
information from military personnel records will be processed according 
to this part.
    (5) Litigation, tort claims, and contract disputes. Release of 
information or records under this section are subject to the time 
limitations prescribed by the FOIA. The requester must be advised of the 
reasons for nonrelease or referral.
    (i) Litigation. 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, U.S. Army Legal Services Agency 
(USALSA), of the substance of the request and the content of the record 
requested. (Mailing address: U.S. Army Litigation Center, 901 N. Stuart 
Street, Arlington, VA 22203-1837. If information is released for use in 
litigation involving the United States, the Chief, Army Litigation 
Division (AR 27-40, para 1-4d) must be advised of the release. He or she 
will note the release in such investigative reports. 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 Center, USALSA.
    (ii) Tort claims. A claimant or a claimant's attorney may request a

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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. 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. That authority, when subordinate, will promptly 
inform the Chief, U.S. Army Claims Service (USACS), 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. IDA 
officials who receive requests will refer them directly to the Chief, 
USACS. They will also advise the requesters of the referral and the 
basis for it. The Chief, USACS, will process requests according to this 
part and AR 27-20, paragraph 1-10.
    (iii) 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 will 
consider the effect of release on the potential dispute. Those officials 
may consult with the USALSA, Contract Appeals Division. (Mailing 
address: U.S. Army Legal Services Agency, ATTN: JALS-CA, 901 North 
Stuart Street, Arlington, VA 22203. 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: Treated as involving a 
contract dispute; and referred to the USALSA, Contract Appeals Division.
    (6) Special nuclear material. Dissemination of unclassified 
information concerning physical protection of special nuclear material.
    (i) 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.
    (ii) This prohibition shall be applied by the Deputy Chief of Staff, 
G-3 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 illegal production of nuclear weapons, theft, diversion, or sabotage 
of special nuclear materials, equipment, or facilities.
    (iii) In making such a determination, Army 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.
    (iv) Army personnel shall exercise the foregoing authority to 
prohibit the dissemination of any information described so as to apply 
the minimum restrictions needed to protect the health and safety of the 
public or the common defense and security, and 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 illegal production of nuclear weapons, 
theft, diversion, or sabotage of special nuclear materials, equipment, 
or facilities.
    (v) Army employees shall not use this authority to withhold 
information from the appropriate committees of Congress.
    (7) Names and duty addresses. Lists of names, including telephone 
directories, organizational charts, and/or staff directories published 
by installations or activities, and other personally identifying 
information will ordinarily be withheld when requested under the

[[Page 146]]

FOIA. This does not preclude a discretionary release of names and duty 
information of personnel who, by the nature of their position and 
duties, frequently interact with the public, such as general officers, 
public affairs officers, and other personnel designated as official 
command spokespersons. The IDA for telephone directories is delegated to 
the DA, FOIA/PA Office. Public Affairs Offices may, after careful 
analysis, 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 relation's functions.
    (c) Requests from government officials. Requests from officials of 
State or local Governments for Army Activity 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. Requests from 
officials of foreign governments shall be considered the same as any 
other requester; however, Army Intelligence elements are statutorily 
prohibited from releasing records responsive to requests made by any 
foreign government or a representative of a foreign government. 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.
    (d) Privileged release outside of the FOIA to U.S. government 
officials. Records exempt from release to the public under the FOIA may 
be disclosed in accordance with Army regulations to agencies of the 
Federal Government, whether legislative, executive, or administrative, 
as follows:
    (1) In response to a request of a Committee or Subcommittee of 
Congress, or to either House sitting as a whole in accordance with DoDD 
5400.4. 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 Congressional 
Committees, Subcommittees, or Joint Committees may examine official 
personnel folders to the extent that the subject matter falls within 
their established jurisdictions, as permitted by 5 CFR 297.401(i);
    (iii) Information related to disciplinary action. This paragraph 
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 DA has specific instructions on the request, the following 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 ``FOUO'' document. In that case the commander will 
refer the request promptly to the Chief of Legislative Liaison for 
action, including the recommendations of the transmitting agency and 
copies of the requested records with the referral.
    (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, HQDA, 
Washington 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.

[[Page 147]]

    (vi) Other exempt records. Commanders or chiefs will refer requests 
for all other categories of exempt information directly to the Chief of 
Legislative Liaison. 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; to other Federal 
Agencies, both executive and administrative, as determined by the head 
of an Army Activity or designee; or in response to an order of a Federal 
court, Army Activities shall release information along with a 
description of the restrictions on its release to the public;
    (viii) 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.
    (ix) 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 of this part.
    (2) Army Activities shall inform officials receiving records under 
the provisions of this section that those records are exempt from public 
release under the FOIA. Army Activities also shall advise officials of 
any special handling instructions. Classified information is subject to 
the provisions of DoD 5200.1-R, and information contained in Privacy Act 
systems of records is subject to DoD 5400.11-R.
    (e) Consultation with affected DoD component. (1) When an Army 
Activity receives a FOIA request for a record in which an affected Army 
or DoD organization (including a Combatant Command) has a clear and 
substantial interest in the subject matter, consultation with that 
affected Army or DoD organization is required. As an example, where an 
Army Activity receives a request for records related to DoD operations 
in a foreign country, the cognizant Combatant Command for the area 
involved in the request shall be consulted before a release is made. 
Consultations may be telephonic, electronic, or in hard copy.
    (2) The affected Activity shall review the circumstances of the 
request for host-nation relations, and provide, where appropriate, FOIA 
processing assistance to the responding DoD Component regarding release 
of information. Responding Army Activities shall provide copies of 
responsive records to the affected DoD Component when requested. The 
affected DoD Component shall receive a courtesy copy of all releases in 
such circumstances.
    (3) Nothing in Sec. 518.19 shall impede the processing of the FOIA 
request initially received by an Army Activity.



Sec. 518.16  Initial determinations.

    (a) Initial denial authority. The DA officials 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. Included are records created or 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 
NARA when a mandatory declassification review is necessary. Requests 
and/or responsive documents should not be sent to the DA FOIA/PA Office 
for initial denial

[[Page 148]]

authority or to forward to other offices within the DA.
    (b) FOIA requesters may ultimately appeal if they are dissatisfied 
with adverse determinations. It is crucial to forward complete packets 
to the IDAs. Ensure cover letters list all attachments and describe from 
where the records were obtained, i.e., a PA system of records (including 
the applicable systems notice), or other. If a FOIA action is 
complicated, include a chronology of events to assist the IDA in 
understanding what happened in the course of processing the FOIA 
request. If a file does not include documentation described below, 
include the tab, and insert a page marked ``not applicable'' or ``not 
used.'' The order and contents of FOIA file attachments follow: (Tab A 
or 1) The original FOIA request and envelope (if applicable); (Tab B or 
2) The response letter; (Tab C or 3) Copies of all records entirely 
released, single-sided; (Tab D or 4) Copies of administrative processing 
documents, including extension letters and ``no records'' certificates, 
in chronological order; (Tab E or 5) Copies of all records partially 
released or entirely denied, single-sided. For partially released 
records, mark in yellow highlighter (or other readable highlighter) 
those portions withheld; and (Tab F or 6) Legal opinions(s).
    (c) 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 Army Activity in published regulations. The presence 
of the marking ``FOUO'' does not relieve the designated official of the 
responsibility to review the requested record for the purpose of 
determining whether an exemption under this part is applicable and 
should be invoked. IDAs may delegate all or part of their authority to a 
division chief under its supervision within the Agency in the grade of 
05/civilian equivalent. Requests for delegation authority below this 
level must be submitted, after coordination, to the DA FOIA/PA Office, 
with detailed justification, for approval. 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 only the names, offices, and 
telephone numbers of their delegates to the DA, FOIA/PA Office. IDAs 
will keep this information current.
    (d) The officials designated by Army Activities to make initial 
determinations should consult with public affairs officers (PAOs) to 
become familiar with subject matters that are 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 statutory 20 working day FOIA 
response limit. (The point of contact for the Army Chief of Public 
Affairs is HQDA (SAPA-OSR), Washington DC 20310-1500). If the request 
involves actual or potential litigation against the United States, 
release must be coordinated with The Judge Advocate General (TJAG).
    (e) 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 as well as requests requiring the personal attention 
of the Secretary of the Army. This also includes civilian Equal 
Employment Opportunity (EEO) actions. (See DCS, G-1 for military Equal 
Opportunity (EO) actions). The Administrative Assistant to the Secretary 
of the Army has delegated its authority

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to the Chief Attorney and Legal Services Directorate, U.S. Army 
Resources & Programs Agency. (See DCS, G-1 for military Equal 
Opportunity (EO) actions).
    (2) The Assistant Secretary of the Army (Financial Management and 
Comptroller) is authorized to act on requests for finance and accounting 
records. Requests for CONUS finance and accounting records should be 
referred to the Defense Finance and Accounting Service (DFAS). The Chief 
Attorney and Legal Services Directorate, acts on requests for non-
finance and accounting records of the Assistant Secretary of the Army 
(Financial Management and Comptroller).
    (3) The Assistant Secretary of the Army (Acquisition, Logistics, & 
Technology) 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. The Chief Attorney and Legal 
Services Directorate, acts on requests for non-procurement records of 
the Assistant Secretary of the Army (Acquisition, Logistics and 
Technology).
    (4) The Deputy Assistant Secretary of the Army (Civilian Personnel 
Policy)/Director of Civilian Personnel, Office of the Assistant 
Secretary of the Army (Manpower and Reserve Affairs) is authorized to 
act on requests for civilian personnel records, personnel administration 
and other civilian personnel matters, except for EEO (civilian) matters 
which will be acted on by the Administrative Assistant to the Secretary 
of the Army. The Deputy Assistant Secretary of the Army (Civilian 
Personnel Policy)/Director of Civilian Personnel has delegated this 
authority to the Chief, Policy and Program Development Division.
    (5) The Chief Information Officer, G-6 is authorized to act on 
requests for records pertaining to Army Information Technology, command, 
control communications and computer systems and the Information 
Resources Management Program (automation, telecommunications, visual 
information, records management, publications and printing).
    (6) The Inspector General is authorized to act on requests for all 
Inspector General Records.
    (7) 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.
    (8) The Director of the Army Staff is authorized to act on requests 
for all records of the Chief of Staff and its Field Operating Agencies. 
The Director of the Army Staff has delegated its authority to the Chief 
Attorney and Legal Services Directorate, U.S. Army Resources & Programs 
Agency. The Chief Attorney and Legal Services Director, U.S. Army 
Resources & Programs Agency acts on requests for records of the Chief of 
Staff and its Field Operating Agencies. (See TJAG for the (GOMO) 
actions).
    (9) The Deputy Chief of Staff, G-3 is authorized to act on requests 
for records relating to International Affairs policy, planning, 
integration and assessments, strategy formulation, force development, 
individual and unit training policy, strategic and tactical command and 
control systems, nuclear and chemical matters, use of DA forces.
    (10) The Deputy Chief of Staff, G-8 is authorized to act on requests 
for records relating to programming, material integration and externally 
directed reviews.
    (11) The Office of the Deputy Chief of Staff, G-1 is authorized to 
act on the following records: Personnel board actions, Equal Opportunity 
(military) and sexual harassment, health promotions, physical fitness 
and well being, command and leadership policy records, HIV and suicide 
policy, substance abuse programs except for individual treatment records 
which are the responsibility of the Surgeon General, retiree benefits, 
services, and programs, (excluded are individual personnel records of 
retired military personnel, which are the responsibility of the U.S. 
Army Human Resources Command-St. Louis (AHRC-STL), DA dealings with 
Veterans Affairs, U.S. Soldier's and Airmen's Home, retention, 
promotion, and separation; recruiting

[[Page 150]]

and MOS policy issues, personnel travel and transportation entitlements, 
military strength and statistics, The Army Librarian, demographics, and 
Manprint.
    (12) The Deputy Chief of Staff, G-4 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.
    (13) 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.
    (14) The Surgeon General, Commander, U.S. Army Medical Command, 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.
    (15) 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.
    (16) The Judge Advocate General is authorized to act on requests for 
records relating to claims, courts-martial, legal services, 
administrative investigations, and similar legal records. TJAG is also 
authorized to act on requests for the GOMO actions and records described 
elsewhere in this regulation, especially 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, including, but not 
limited to requests for records for Commands, and activities.
    (17) 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.
    (18) 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.
    (19) The Commander, United States Army Materiel Command (AMC) is 
authorized to act on requests for the records of AMC headquarters and to 
subordinate commands, units, and activities that relate to procurement, 
logistics, research and development, and supply and maintenance 
operations.
    (20) The Provost Marshal General (PMG) is authorized to act on all 
requests for provost marshal activities and law enforcement functions 
for the army, all matters relating to police intelligence, physical 
security, criminal investigations, corrections and internment (to 
include confinement and correctional programs for U.S. prisoners, 
criminal investigations, provost marshal activities, and military police 
support. The PMG is responsible for the Office of Security, Force 
Protection, and Law Enforcement Division and is the functional proponent 
for AR 190-series (Military Police) and 195-series

[[Page 151]]

(Criminal Investigation), AR 630-10 Absent Without Leave, Desertion, and 
Administration of Personnel Involved in Civilian Court Proceedings, and 
AR 633-30, Military Sentences to Confinement.
    (21) The Commander, U.S. Army Criminal Investigation Command 
(USACIDC), is authorized to act on requests for criminal investigative 
records of USACIDC headquarters, its subordinate activities, and 
military police reports. This includes criminal investigation records, 
investigation-in-progress records, and all military police records and 
reports.
    (22) The Commander, United States Army Human Resources Command 
(USAHRC), 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.
    (23) The Commander, USARC-StL has been delegated authority to act on 
behalf of the USAHRC for requests concerning all personnel and medical 
records of retired, separated, discharged, deceased, and reserve 
component military personnel, unless such records clearly fall within 
another IDA's authority. The authority does not 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.
    (24) The Assistant Chief of Staff for Installation Management 
(ACSIM) is authorized to act on requests for records relating to 
planning, programming, execution and operation of Army installations. 
This includes base realignment and closure activities, environmental 
activities other than litigation, facilities and housing activities, and 
installation management support activities.
    (25) The Commander, United States Army Intelligence and Security 
Command, is authorized to act on requests for intelligence and security 
records, foreign scientific and technological records, intelligence 
training, intelligence threat assessments, and foreign liaison 
information.
    (26) The Commander, U.S. Army Safety Center, is authorized to act on 
requests for Army safety records.
    (27) The Commander, United States Army Test and Evaluation Command 
(ATEC), is authorized to act on requests for the records of ATEC 
headquarters, its subordinate commands, units, and activities that 
relate to test and evaluation operations.
    (28) 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.
    (29) 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. You may contact the DA, FOIA/PA Office to obtain 
current information on special delegations.
    (f) Reasons for not releasing a record. The following are reasons 
for not complying with a request for a record under 5 U.S.C. 552(a)(3).
    (1) No records. A reasonable search of files failed to identify 
responsive records. The records custodian will prepare a detailed no 
records certificate. This certificate must include, at a minimum, what 
areas or offices were searched and how the search was conducted 
(manually, by computer, etc.). The certificate will be signed by the 
records custodian and will include his or her grade and title. The 
original certificate will be forwarded to the IDA. Preprinted ``check-
the-block'' or ``fill-in-the-blank'' no records certificates are not 
authorized.
    (2) Referrals. The request is transferred to another Army Activity 
or DoD Component, or to another Federal Agency.
    (3) Request withdrawn. The request is withdrawn by the requester.
    (4) Fee-related reason. The requester is unwilling to pay fees 
associated with a

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request; the requester is past due in the payment of fees from a 
previous FOIA request; or the requester disagrees with the fee estimate.
    (5) Records not reasonably described. A record has not been 
described with sufficient particularity to enable the Army or DoD 
Component to locate it by conducting a reasonable search.
    (6) Not a proper FOIA request for some other reason. The requester 
has failed unreasonably to comply with procedural requirements, other 
than fee-related, imposed by this part or Army Activity supplementing 
regulations.
    (7) Not an agency record. The information requested is not a record 
within the meaning of the FOIA and this part.
    (8) Duplicate request. The request is a duplicate request (e.g., a 
requester asks for the same information more than once). This includes 
identical requests received via different means (e.g., electronic mail, 
facsimile, mail, and courier) at the same or different times.
    (9) Other (specify). Any other reason a requester does not comply 
with published rules other than those outlined in paragraphs (f)(1) 
through (8) of this section.
    (10) Partial or total denial. The record is denied in whole or in 
part in accordance with procedures set forth in the FOIA.
    (g) Denial tests. To deny a requested record that is in the 
possession and control of an Army Activity, it must be determined that 
the record is exempt under one or more of the exemptions of the FOIA. An 
outline of the FOIA's exemptions is contained in subpart C of this part.
    (h) 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. Unless indicating the extent of the deletion would harm an 
interest protected by an exemption, the amount of deleted information 
shall be indicated on the released portion of paper records by use of 
brackets or darkened areas indicating removal of information. In no case 
shall the deleted areas be left ``white'' without the use of brackets to 
show the bounds of deleted information. In the case of electronic 
deletion, or deletion in audiovisual or microfiche records, if 
technically feasible, the amount of redacted information shall be 
indicated at the place in the record such deletion was made, unless 
including the indication would harm an interest protected by the 
exemption under which the deletion is made. This may be done by use of 
brackets, shaded areas, or some other identifiable technique that will 
clearly show the limits of the deleted information. When a record is 
denied in whole, the response advising the requester of that 
determination will specifically state that it is not reasonable to 
segregate portions of the record for release.
    (i) Response to requester. Whenever possible, initial determinations 
to release or deny a record normally shall be made and the decision 
reported to the requester within 20 working days after receipt of a 
proper request by the official designated to respond. When an Army 
Activity has a significant number of pending requests which prevent a 
response determination within the 20 working day period, the requester 
shall be so notified in an interim response, and advised whether their 
request qualifies for the fast track or slow track within the Army 
Activity's multitrack processing system. Requesters who do not meet the 
criteria for fast track processing shall be given the opportunity to 
limit the scope of their request in order to qualify for fast track 
processing.
    (1) 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.
    (2) 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, inclusive of a brief 
statement describing what the exemption(s) cover. When

[[Page 153]]

the initial denial is based in whole or in part on a security 
classification, the explanation should include a summary of the 
applicable Executive Order 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 Army Activity. 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: OGC).
    (3) The final response to the requester should contain information 
concerning the fee status of the request, consistent with the provisions 
of subpart F, of this part. When a requester is assessed fees for 
processing a request, the requester's fee category shall be specified in 
the response letter. Activities also shall provide the requester with a 
complete cost breakdown (e.g., 115 pages of office reproduction at $0.15 
per page; 5 minutes of computer search time at $43.50 per minute, 3 
hours of professional level search at $44 per hour, etc.) in the 
response letter.
    (4) The explanation of the substantive basis for a denial shall 
include specific citation of the statutory exemption applied under 
provisions of this part; e.g., 5 U.S.C. 552 (b)(1). Merely referring to 
a classification; to a ``FOUO'' marking on the requested record; or to 
this part or an Army Activity's regulation does not constitute a proper 
citation or explanation of the basis for invoking an exemption.
    (5) When the time for response becomes an issue, the official 
responsible for replying shall acknowledge to the requester the date of 
the receipt of the request.
    (6) When denying a request for records, in whole or in part, an Army 
Activity shall make a reasonable effort to estimate the volume of the 
records denied and provide this estimate to the requester, unless 
providing such an estimate would harm an interest protected by an 
exemption of the FOIA. This estimate should be in number of pages or in 
some other reasonable form of estimation, unless the volume is otherwise 
indicated through deletions on records disclosed in part.
    (7) When denying a request for records in accordance with a statute 
qualifying as a FOIA exemption 3 statute, Army Activities shall, in 
addition to stating the particular statute relied upon to deny the 
information, also state whether a court has upheld the decision to 
withhold the information under the particular statute, and a concise 
description of the scope of the information being withheld.
    (j) Extension of time. In unusual circumstances, when additional 
time is needed to respond to the initial request, the Army Activity 
shall acknowledge the request in writing within 20 working days, 
describe the circumstances requiring the delay, and indicate the 
anticipated date for a substantive response that may not exceed 10 
additional working days, except as provided below:
    (1) With respect to a request for which a written notice has 
extended the time limits by 10 additional working days, and the Activity 
determines that it cannot make a response determination within that 
additional 10 working day period, the requester shall be notified and 
provided an opportunity to limit the scope of the request so that it may 
be processed within the extended time limit, or an opportunity to 
arrange an alternative time frame for processing the request or a 
modified request. Refusal by the requester to reasonably modify the 
request or arrange for an alternative time frame shall be considered a 
factor in determining whether exceptional circumstances exist with 
respect to Army Activity's request backlogs. Exceptional circumstances 
do not include a delay that results from predictable activity backlogs, 
unless the Army Activity demonstrates reasonable progress in reducing 
its backlog.
    (2) Unusual circumstances that may justify delay are: The need to 
search for and collect the requested records from other facilities that 
are separate from the office determined responsible for a release or 
denial decision on the requested information; the need to

[[Page 154]]

search for, collect, and appropriately examine a voluminous amount of 
separate and distinct records which are requested in a single request; 
and the need for consultation, which shall be conducted with all 
practicable speed, with other agencies having a substantial interest in 
the determination of the request, or among two or more Army Activities 
or DoD Components having a substantial subject-matter interest in the 
request.
    (3) Army Activities may aggregate certain requests by the same 
requester, or by a group of requesters acting in concert, if the Army 
Activity reasonably believes that such requests actually constitute a 
single request, which would otherwise satisfy the unusual circumstances 
set forth in paragraph (j)(2) of this section, and the requests involve 
clearly related matters. Multiple requests involving unrelated matters 
shall not be aggregated. If the requests are aggregated under these 
conditions, the requester or requesters shall be so notified.
    (4) In 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 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. Army Activities are reminded that the 
requester still retains the right to treat this delay as a de facto 
denial with full administrative remedies. Only the responsible IDA can 
extend it, and the IDA must first coordinate with the OGC.
    (5) As an alternative to the taking of formal extensions of time the 
negotiation by the cognizant FOIA coordinating office of informal 
extensions in time with requesters is encouraged where appropriate.
    (k) Misdirected requests. Misdirected requests shall be forwarded 
promptly to the Army Activity or other Federal Agency 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 Army Activity that manages the 
records requested.
    (l) Records of non-U.S. Government source. When a request is 
received for a record that falls under exemption 4, 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, FOIA, Exemption (b)(4)] and E.O. 12600], shall be notified 
promptly of that request and afforded reasonable time (14 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) of 5 U.S.C. 552, The FOIA. If, for 
example, the record or information was provided with actual or 
presumptive knowledge of the non-U.S. Government source and established 
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 under 
FOIA. When a substantial issue has been raised, the Army Activity 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 seeks a restraining 
order or 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.
    (1) If the submitted information is a proposal in response to a 
solicitation

[[Page 155]]

for a competitive proposal, and the proposal is in the possession and 
control of DA (see 10 U.S.C. 2305(g)), the proposal shall not be 
disclosed, and no submitter notification and subsequent analysis is 
required. The proposal shall be withheld from public disclosure pursuant 
to 10 U.S.C. 2305(g) and exemption (b)(3) of the FOIA. This statute does 
not apply to bids, unsolicited proposals, or any proposal that is set 
forth or incorporated by reference in a contract between an Army 
Activity and the offeror that submitted the proposal. In such 
situations, normal submitter notice shall be conducted except for sealed 
bids that are opened and read to the public. The term, proposal, means 
information contained in or originating from any proposal, including a 
technical, management, or cost proposal submitted by an offeror in 
response to solicitation for a competitive proposal, but does not 
include an offeror's name or total price or unit prices when set forth 
in a record other than the proposal itself. Submitter notice, and 
analysis as appropriate, are required for exemption (b)(4) matters that 
are not specifically incorporated in 10 U.S.C. 2305(g).
    (2) If the record or information was submitted on a strictly 
voluntary basis, absent any exercised authority that prescribes criteria 
for submission, and after consultation with the submitter, it is 
absolutely clear that the record or information would customarily not be 
released to the public, the submitter need not be notified. Examples of 
exercised authorities prescribing criteria for submission are statutes, 
Executive Orders, regulations, invitations for bids, requests for 
proposals, and contracts. Records or information submitted under these 
authorities are not voluntary in nature. When it is not clear whether 
the information was submitted on a voluntary basis, absent any exercised 
authority, and whether it would customarily be released to the public by 
the submitter, notify the submitter and ask that it describe its 
treatment of the information, and render an objective evaluation. If the 
decision is made to release the information over the objection of the 
submitter, notify the submitter and afford the necessary time to allow 
the submitter to seek a restraining order, or take court action to 
prevent release of the record or information.
    (3) The coordination provisions of this section also apply to any 
non-U.S. Government record in the possession and control of the Army or 
DoD from multi-national organizations, such as the North Atlantic Treaty 
Organization (NATO), United Nations Commands, the North American 
Aerospace Defense Command (NORAD), the Inter-American Defense Board, or 
foreign governments. Coordination with foreign governments under the 
provisions of this section may be made through Department of State, or 
the specific foreign embassy.
    (m) File of initial denials. Copies of all initial withholdings or 
denials shall be maintained by each Army Activity in a form suitable for 
rapid retrieval, periodic statistical compilation, and management 
evaluation. Records denied for any of the reasons contained in Sec. 
518.20 shall be maintained for a period of six years to meet the statute 
of limitations requirement. Records will be maintained in accordance 
with AR 25-400-2.
    (n) Special mail services. Army Activities 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. The requester shall be notified that they are 
responsible for the full costs of special services.
    (o) Receipt accounts. The Treasurer of the United States has 
established two accounts for FOIA receipts, and all money orders or 
checks remitting FOIA fees should be made payable to the U.S. Treasurer. 
These accounts 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 non-appropriated funded activity FOIA receipts shall be 
deposited to the applicable fund.
    (1) Receipt Account 3210 Sale of Publications and Reproductions, 
FOIA.

[[Page 156]]

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.
    (2) Receipt Account 3210 Fees and Other Charges for Services, FOIA. 
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.



Sec. 518.17  Appeals.

    (a) General. If the official designated by the Army Activity to make 
initial determinations on requests for records declines to provide a 
record because the official considers it exempt under one or more of the 
exemptions of the FOIA, 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 fee 
category claim by a requester, disapproval of a request for waiver or 
reduction of fees, disputes regarding fee estimates, review on an 
expedited basis a determination not to grant expedited access to agency 
records, for no record determinations when the requester considers such 
responses adverse in nature, not providing a response determination to a 
FOIA request within the statutory time limits, or any determination 
found to be adverse in nature by the requester. Upon an IDA's receipt of 
a no records determination appeal, the IDA will direct the records 
custodian to conduct another records search and certify, in writing, 
that it has made a good faith effort that reasonably could be expected 
to produce the information requested. If no records are again found, the 
original no records certificate will be forwarded to the IDA for 
inclusion in the appeals packet. When denials have been made under the 
provisions of the FOIA and the PA, and the denied information is 
contained in a PA system of records, appeals shall be processed under 
both the FOIA and the PA. If the denied information is not maintained in 
a PA system of records, the appeal shall be processed under the FOIA. If 
a request is merely misaddressed, and the receiving Army Activity or DoD 
Component simply advises the requester of such and refers the request to 
the appropriate Army or DoD Component, this shall not be considered a no 
record determination.
    (1) Appeals of adverse determinations from denial of records or ``no 
record'' determination, received by Army IDAs must be forwarded through 
the denying IDA to the Secretary of the Army (ATTN: OGC). On receipt of 
an appeal, the IDA will--
    (i) Send the appeal to the Office of the Secretary of the Army, OGC, 
together with a copy of the documents that are the subject of the 
appeal. The cover letter will list all attachments and describe from 
where the records were obtained, i.e., a PA system of records (including 
the applicable systems notice, or other. If a file does not include 
documentation described below, include the tab, and insert a page marked 
``not applicable'' or ``not used.'' The order and contents of FOIA file 
attachments follow: (Tab A or 1) The original FOIA request and envelope 
(if applicable); (Tab B or 2) The IDA denial letter; (Tab C or 3) Copies 
of all records entirely released, single-sided; (Tab D or 4) Copies of 
administrative processing documents, including extension letters and 
``no records'' certificates, in chronological order; (Tab E or 5) Copies 
of all records partially denied or completely denied, single-sided. For 
records partially denied, mark in yellow highlighter (or other readable 
highlighter) those portions withheld; and (Tab F or 6) Legal 
opinions(s); and
    (ii) Assist the OGC as requested during his or her consideration of 
the appeal.
    (2) Appeals of denial of records made by the OGC, AAFES, shall be 
made to the Secretary of the Army when the Commander, AAFES, is an Army 
officer. Appeals of denial of records made by the OGC, AAFES, shall be 
made to

[[Page 157]]

the Secretary of the Air Force when the Commander is an Air Force 
officer.
    (b) Time of receipt. A FOIA appeal has been received by an Army 
Activity when it reaches the office of an appellate authority having 
jurisdiction, the OGC. Misdirected appeals should be referred 
expeditiously to the OGC.
    (c) Time limits. The requester shall be advised to file an appeal so 
that it is postmarked no later than 60 calendar days after the date of 
the initial denial letter. If no appeal is received, or if the appeal is 
postmarked after the conclusion of this 60-day period, the case may be 
considered closed. However, exceptions to the above may be considered on 
a case-by-case basis. In cases where the requester is provided several 
incremental determinations for a single request, the time for the appeal 
shall not begin until the date of the final response. Records that are 
denied shall be retained for a period of six years to meet the statute 
of limitations requirement. Final determinations on appeals normally 
shall be made within 20 working days after receipt. When an Army 
Activity has a significant number of appeals preventing a response 
determination within 20 working days, the appeals shall be processed in 
a multitrack processing system, based at a minimum, on the three 
processing tracks established for initial requests. All of the 
provisions of the FOIA apply also to appeals of initial determinations, 
to include establishing additional processing queues as needed.
    (d) Delay in responding to an appeal. If additional time is needed 
due to the unusual circumstances 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. 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. Requesters shall be advised that, if the delay 
exceeds the statutory extension provision or is for reasons other than 
the unusual circumstances they may consider their administrative 
remedies exhausted. They may, however, without prejudicing their right 
of judicial remedy, await a substantive response. The Army Activity will 
continue to process the case expeditiously.
    (e) Response to the requester. When the appellate authority (OGC) 
makes a final determination to release all or a portion of records 
withheld by an IDA, a written response and 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. 
Final refusal of an appeal must be made in writing by the appellate 
authority 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 exemption or 
exemptions invoked under provisions of the FOIA, and with respect to 
other appeal matters;
    (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;
    (4) In the case of appeals for total denial of records, the response 
shall advise the requester that the information being denied does not 
contain meaningful portions that are reasonably segregable;
    (5) When the denial is based upon an exemption 3 statute, the 
response, in addition to citing the statute relied upon to deny the 
information, shall state whether a court has upheld the decision to 
withhold the information under the statute, and shall contain a concise 
description of the scope of the information withheld; or
    (6) The response shall advise the requester of the right to judicial 
review.
    (f) Consultation. Final refusal involving issues not previously 
resolved or

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that the Army Activity knows to be inconsistent with rulings of other 
DoD Components ordinarily should not be made before consultation with 
the Army OGC. 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 Army OGC.



Sec. 518.18  Judicial actions.

    (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 DA or DoD to 
particular judicial interpretations or procedures. A requester may seek 
an order from a U.S. 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 Army 
Activity has failed to respond within the time limits prescribed by the 
FOIA and in this part.
    (b) The requester may bring suit in the U.S. 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.
    (c) The burden of proof is on the Army Activity 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.
    (d) When an Army Activity has failed to make a determination within 
the statutory time limits but can demonstrate due diligence in 
exceptional circumstances, to include negotiating with the requester to 
modify the scope of their request, the court may retain jurisdiction and 
allow the Activity additional time to complete its review of the 
records.
    (1) If the court determines that the requester's complaint is 
substantially correct, it may require the U. S. to pay reasonable 
attorney fees and other litigation costs.
    (2) 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 Army Activity 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 Army 
Activity is obligated to take the action recommended by the special 
counsel.
    (3) The court may punish the responsible official for contempt when 
an Army Activity fails to comply with the court order to produce records 
that it determines have been withheld improperly.
    (e) Non-U. S. Government source information. A requester may bring 
suit in an U.S. District Court to compel the release of records obtained 
from a non-government source or records based on information obtained 
from a non-government 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 Army Activity 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.
    (f) FOIA litigation. Personnel responsible for processing FOIA 
requests at the 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. Whenever a complaint 
under the FOIA is filed in an U.S. District Court, the Army Activity 
named in the complaint shall forward a copy of the complaint by any 
means to HQDA, OTJAG (DAJA-LT), with an information copy to the Army 
OGC. In the DA, HQDA OTJAG (DAJA-LT), WASH D.C. 20310-2210 is also 
responsible for forwarding this information to the Office of the Army 
OGC and to the DA FOIA/PA Office.
    (1) Bases for FOIA Lawsuits. In general, there are four categories 
of complaints in a FOIA lawsuit: failure to respond to a request within 
time frames

[[Page 159]]

established in the FOIA statute; challenge to the adequacy of search for 
responsive records; challenge to application of a FOIA Exemption; and 
procedural challenges, such as application of waiver of fees. The 
guidance below is intended to cover all categories of complaints. In 
responding to litigation support requests, bear in mind the type of 
complaint that has given rise to the lawsuit and provide information, 
which addresses the specific reason(s) for the complaint.
    (2) Responsibility for FOIA litigation. For the Army, under the 
general oversight of the OGC, FOIA litigation is the responsibility of 
the General Litigation Branch, Army Litigation Division. If you are 
notified of a FOIA lawsuit involving the Army, contact the General 
Litigation Branch immediately at: U.S. Army Litigation Center, General 
Litigation Branch (JALS-LTG), 901 North Stuart Street, Suite 700, 
Arlington, VA 22203-1837. The General Litigation Branch will provide 
guidance on gathering information and assembling a litigation report 
necessary to respond to FOIA litigation.
    (3) Litigation reports for FOIA lawsuits. As with any lawsuit, the 
Army Litigation Division and DOJ will require a litigation report. This 
report should be prepared with the assistance, and under the supervision 
of, the legal advisor. For general guidance on litigation reports, see 
Army Regulation 27-40, paragraph 3-9. Unlike the usual 60-day time 
period to respond to complaints under the Federal Rules of Civil 
Procedure, complaints under the FOIA must be answered within 30 days of 
the service of the complaint. Therefore, it is imperative to contact the 
Litigation Division immediately and to begin preparing the litigation 
report without delay.
    (4) Specific guidance for FOIA litigation reports. The following is 
specific guidance for preparing a litigation report in FOIA Litigation. 
The required material should be indexed and assembled under the 
following categories:
    (i) Statement of facts. (Tab A). Provide a chronological statement 
of all facts related to the FOIA request, beginning with receipt of the 
request, responses to the request, and searches for responsive records. 
The statement of facts should refer to supporting enclosed exhibits 
whenever possible.
    (ii) Responses to pleadings. (Tab B). If you have been provided a 
copy of the complaint, provide a line-by-line answer to the factual 
statements in the pleadings, along with recommendations on whether to 
admit or deny the allegation.
    (iii) Memorandum of law. (Tab C). No memorandum of law is necessary 
in FOIA lawsuits. If records were withheld, provide a written statement 
explaining the FOIA Exemption used to withhold the information and the 
rationale for its application in the particular facts of your case. 
Include here a copy of any legal review regarding the withholding of the 
records.
    (iv) Potential witness information. (Tab D). List the names, 
addresses, telephone number, facsimile number and e-mail addresses of 
all potential witnesses. At a minimum, this must include all of the 
following: the FOIA Officer or Coordinator or other person responsible 
for processing FOIA requests; the individual(s) who actually conducted 
the search for responsive records; the legal advisor(s) who reviewed or 
provided advice on the request; and the point of contact at any office 
or agency to which the FOIA request was referred.
    (v) Exhibits. (Tab E). Provide copies of all correspondence 
regarding the FOIA request. This includes all correspondence between the 
agency and the requester, including any enclosures; any referrals or 
forwarding of the request to other agencies or offices; copies of all 
documents released to the requester pursuant to the request in 
litigation. If any information is withheld or redacted, provide a 
complete copy of all withheld information. Identify withheld information 
by placing brackets around all information withheld and note in the 
margins of the document the specific FOIA exemption applied to deny 
release of the document; all records and correspondence forwarded to the 
IDA, if applicable; all appeals by the requester; if the withheld 
document is classified, provide a summary of each document withheld. The 
Summary of classified documents should include the following:

[[Page 160]]

    (A) The classification of the document;
    (B) The date of the document;
    (C) The number of pages of the document;
    (D) The author or creator of the document;
    (E) The intended or actual recipient of the document;
    (F) The subject of the document and an unclassified description of 
the document sufficient to inform the court of the nature of the 
contents of the document; and
    (G) An explanation of the reason for withholding, including the 
specific provision(s) of Executive Order 12,958 which permit 
classification of the information.
    (vi) Draft declarations. (Tab F). A declaration is a statement for 
use in litigation made under penalty of perjury pursuant to specific 
statutory authority (28 U.S.C. 1746) which need not be notarized. 
Declarations may be used by the Army to support a motion to dismiss or 
to grant summary judgment. Depending on the basis for the lawsuit, with 
the assistance of their legal advisor, witnesses should prepare a draft 
declaration to be included with the litigation report.
    (vii) The following is some general guidance on the content of a 
declaration in FOIA litigation. Identify the declarant and describe his 
or her qualifications and responsibilities as they relate to the FOIA; 
provide a statement indicating that the declarant is familiar with the 
specific request and the general subject matter of the records; include 
a statement of the searcher's understanding of the exact nature of the 
request, including any modification (narrowing or expanding the search 
based on communications with the requester); generally, the factual 
portion of the declaration should be organized as a chronological 
statement beginning with receipt of the request; provide a specific 
description of the system of records searched; and provide a description 
of procedures used to search for the requested records, (manual search 
of records, computer database search, etc.). This portion of the 
declaration is especially important when no records are found. The 
declaration must reflect an adequate and reasonable search for records 
in locations where responsive records are likely to be found.
    (5) Special guidance for initial denial authorities. If any 
information was withheld, the IDA or person with specific knowledge of 
the withholding must provide a specific statement of any Exemptions to 
the FOIA, which were applied to the records.
    (i) Withheld records. For withheld records, describe in reasonably 
specific detail all records or parts of records withheld. If the number 
of records is extensive, use an index of the records and consider 
numbering the documents to facilitate reference. It is also permissible 
(and frequently helpful) to include redacted portions of records 
withheld as attachments or exhibits to the declarations.
    (ii) Exemptions. Include in the declaration a specific statement 
demonstrating that all the elements of each FOIA exemption are met.
    (iii) Segregation. The FOIA requires that all information not 
subject to an exemption to the FOIA, which can be reasonably segregated 
from exempt information, must be released to FOIA requesters. In any 
instance where an entire document is withheld, the individual 
authorizing the withholding must specifically address that segregation 
and release of non-exempt material was not possible without rendering 
the record essentially meaningless. If applicable, this issue must be 
specifically addressed in the declaration.
    (iv) Sound Legal Basis. Army policy promotes careful consideration 
of FOIA requests and discretionary decisions to disclose information 
protected under the FOIA. Discretionary disclosures should be made only 
after full and deliberate consideration of the institutional, 
commercial, and personal privacy interests that could be implicated by 
disclosure of the information. The decision to withhold records, in 
whole or in part, otherwise exempt from disclosure under the FOIA must 
exhibit a sound legal basis or present an unwarranted risk of adverse 
impact on the ability of other agencies to protect other important 
records.

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                         Subpart F_Fee Schedule



Sec. 518.19  General provisions.

    (a) Authorities. The FOIA, as amended; the Paperwork Reduction Act 
(44 U.S.C. 35), as amended; the PA of 1974, as amended; the Budget and 
Accounting Act of 1921 and the Budget and Accounting Procedures Act, as 
amended (see 31 U.S.C.); and 10 U.S.C. 2328).
    (b) Application. 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 7000.14-R, which does not supersede the 
collection of fees under the FOIA. Nothing in this subpart 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 FOIA, (a)(4)(A)(vi)) means any statute 
that enables a Government Agency such as the GPO or the 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 GPO or NTIS, 
they inform requesters of the steps necessary to obtain records from 
those sources.
    (1) The term ``direct costs'' means those expenditures an Activity 
actually makes in searching for, reviewing (in the case of commercial 
requesters), and duplicating documents to respond to a FOIA request. 
Direct costs include, for 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. Not included in direct costs are overhead expenses such as 
costs of space, heating or lighting the facility in which the records 
are stored.
    (2) The term ``search'' includes all time spent looking, both 
manually and electronically, 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 record to determine if 
it, or portions thereof are responsive to the request. Activities should 
ensure that searches are done in the most efficient and least expensive 
manner so as to minimize costs for both the Activity and the requester. 
For example, Activities should not engage in line-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.
    (3) The term ``duplication'' refers to the process of making a copy 
of a document in response to a 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 useable, the requester shall be notified that the copy 
provided is the best available and that the Activity's master copy shall 
be made available for review upon appointment. For duplication of 
computer-stored records, the actual cost, including the operator's time, 
shall be charged. In practice, if an Activity 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 Activity 
personnel with the object of reformulating the request to meet his or 
her needs at a lower cost.
    (4) The term ``review'' refers to the process of examining documents 
located in response to a FOIA request to determine whether one or more 
of the

[[Page 162]]

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. 
Activities 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.
    (c) Fee restrictions. No fees may be charged by any Army Activity 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, Activities 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 fifteen minutes 
of search time, and resulted in one hundred and twenty-five pages of 
documents, an Activity 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 Activity for billing the 
requester and processing the fee collected, no charges would result.
    (1) 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 an Activity, after completing 
its portion of a request, finds it necessary to refer the request to a 
subordinate office, another Army Activity or DoD Component, or another 
Federal Agency for action their portion of the request, the referring 
Activity shall inform the recipient of the referral of the expended 
amount of search time and duplication cost to date.
    (2) The elements to be considered in determining the ``cost of 
collecting a fee'' are the administrative costs to the Activity 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 the Activity's determinations.
    (3) 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.
    (4) 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 $40.00 (two hours of equivalent search at the 
clerical level), amounts of computer costs in excess of that amount are 
chargeable as computer search time. In the event the direct operating 
cost of the hardware configuration cannot be determined, computer search 
shall be based on the salary scale of the operator executing the 
computer search.
    (d) Fee waivers. Documents shall be furnished without charge, or at 
a charge reduced below fees assessed to the categories of requesters 
when the Activity 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 DA and is not primarily in the commercial interest of the 
requester.
    (1) When assessable costs for a FOIA request total $15.00 or less, 
fees shall be waived automatically for all requesters, regardless of 
category.
    (2) Decisions to waive or reduce fees that exceed the automatic 
waiver threshold shall be made on a case-by-

[[Page 163]]

case basis. 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) Activities should analyze whether the subject matter of the 
request involves issues that will significantly contribute to the public 
understanding of the operations or activities of DA or DoD. Requests for 
records in the possession of the Army or DoD, 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 either DA or DoD. 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 an Army or DoD activity. Similarly, disclosures of 
records of considerable age may or may not bear directly on the current 
activities of either DA or DoD; 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 DA or DoD, 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 DA or DoD.
    (ii) The informative value of the information to be disclosed 
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 DA or 
DoD. While the subject of a request may contain information that 
concerns operations or activities of DA or DoD, 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 previously 
released record that has been heavily redacted, 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 DA or DoD 
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 existing in the public domain may 
add no meaningful new information concerning the operations and 
activities of DA or DoD.
    (iii) The contribution to an understanding of the subject by the 
general public is likely to result from disclosure that 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 indigence are insufficient without demonstrating 
the capacity to further disclose the information in a manner that 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) Activities 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. Activities shall

[[Page 164]]

not make value judgments as to whether the information is important 
enough to be made public.
    (3) Disclosure of the information ``is not primarily in the 
commercial interest of the requester.''
    (i) If the request is determined to be of a commercial interest, 
Activities 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, 
Activities may draw inference from the requester's identity and 
circumstances of the request. Activities are reminded that in order to 
apply the commercial standards of the FOIA, the requester's commercial 
benefit must clearly override any personal or non-profit interest.
    (ii) Once a requester's commercial interest has been determined, 
Activities 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 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.
    (4) Activities are reminded that the factors and examples used in 
this section 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, Activities should rule in 
favor of the requester.
    (5) In addition, the following additional circumstances describe 
situations where waiver or reduction of fees are most likely to be 
warranted:
    (i) A record is voluntarily created to prevent an otherwise 
burdensome effort to provide voluminous amounts of available records, 
including additional information not requested; or
    (ii) 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).
    (e) Fee assessment. 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.
    (1) In order to be as responsive as possible to FOIA requests while 
minimizing unwarranted costs to the taxpayer, Activities shall adhere to 
the following procedures:
    (i) Each request must be analyzed to determine the category of the 
requester. If the Activity determination regarding the category of the 
requester is different than that claimed by the requester, the Activity 
should notify the requester to 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 Activity shall render a final category determination, and 
notify the

[[Page 165]]

requester of such determination, to include normal administrative appeal 
rights of the determination. The requester should be advised 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 Activity;
    (ii) Requesters should submit a fee declaration appropriate for the 
below categories. Commercial requesters should indicate a willingness to 
pay all search, review and duplication costs. Educational or 
Noncommercial Scientific Institution or News Media requesters should 
indicate a willingness to pay duplication charges, if applicable, in 
excess of 100 pages if more than 100 pages of records are desired. All 
other requesters should indicate a willingness to pay assessable search 
and duplication costs;
    (iii) Activities 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 Activities, 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 Activities' actual costs exceed the 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;
    (iv) No Army Activity 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 date of billing 
(the fees have been assessed in writing) by the Activity;
    (v) Where an Activity estimates or determines that allowable charges 
that a requester may be required to pay are likely to exceed $250.00, 
the Activity 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;
    (vi) 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 Activity may require the requester to pay the full amount 
owed, plus any applicable interest, or demonstrate that he or she has 
paid the fee, and to make an advance payment of the full amount of the 
estimated fee before the Activity begins to process a new or pending 
request from the requester. Interest will be at the rate prescribed in 
31 U.S.C. 3717, and confirmed with respective Finance and Accounting 
Offices;
    (vii) After all work is completed on a request, and the documents 
are ready for release, Activities may request payment before forwarding 
the documents, particularly for those requesters who have no payment 
history, or for those requesters who have failed previously to pay a fee 
in a timely fashion (i.e., within 30 calendar days from the date of the 
billing;
    (viii) The administrative time limits of the FOIA will begin only 
after the Activity has received a willingness to pay fees and 
satisfaction as to category determination, or fee payments (if 
appropriate); and
    (ix) Activities may charge for time spent searching for records, 
even if that search fails to locate records responsive to the request. 
Activities may also charge search and review (in the case of commercial 
requesters) time if records located are determined to be exempt from 
disclosure. In practice, if the Activity estimates that search charges 
are likely to exceed $25.00, 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 Activity 
personnel with the object of reformulating the request to meet his or 
her needs at a lower cost.
    (2) Commercial requesters. Fees shall be limited to reasonable 
standard charges for document search, review

[[Page 166]]

and duplication when records are requested for commercial use. 
Requesters must reasonably describe the records sought.
    (i) 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, Activities must determine 
the use to which a requester will put the documents requested. Moreover, 
where an Activity 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, Activities should seek additional clarification 
before assigning the request to a specific category.
    (ii) When Activities 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 records 
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 
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.
    (3) 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 records sought. The term ``educational 
institution'' refers to a pre-school, a public or private elementary or 
secondary school, an institution of graduate high 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. Fees shall 
be waived or reduced in the public interest if the criteria above have 
been met.
    (4) 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. The 
term ``non-commercial scientific institution'' refers to an institution 
that is not operated on a ``commercial'' basis and that is operated 
solely for the purpose of conducting scientific research, the results of 
which are not intended to promote any particular product or industry.
    (5) Activities shall provide documents to requesters 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.
    (6) 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.
    (i) 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. Examples 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

[[Page 167]]

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 
Activities may also look to the past publication record of a requester 
in making this determination.
    (ii) To be eligible for inclusion in this category, a requester must 
meet the criteria in paragraph (e) (6) (i) of this section, 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).
    (iii) ``Representative of the news media'' does not include private 
libraries, private repositories of Government records, information 
vendors, data brokers or similar marketers of information whether to 
industries and businesses, or other entities.
    (7) All other requesters. Activities shall charge requesters who do 
not fit into any of the 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. Requests from subjects about themselves will continue to 
be treated under the fee provisions of the Privacy Act of 1974, which 
permit fees only for duplication. Activities 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 in paragraph (6) (ii) in this section.
    (f) Aggregating requests. Except for requests that are for a 
commercial use, an Activity 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 an Activity 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 Activities 
should have a solid basis for determining that aggregation is warranted 
in such cases. Activities 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 Activities 
aggregate multiple requests on unrelated subjects from one requester.
    (g) Debt Collection Act of 1982 (Pub. L. 97-365). The Debt 
Collection Act provides for a minimum annual rate of interest to be 
charged on overdue debts owed the Federal Government. Activities 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. Activities should verify the current interest rate 
with respective Finance and Accounting Offices. After one demand letter 
has been sent, and 30

[[Page 168]]

calendar days have lapsed with no payment, Activities may submit the 
debt to respective Finance and Accounting Offices for collection 
pursuant to the Debt Collection Act.
    (h) Computation of fees. The fee schedule 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. 
The appropriate fee category of the requester shall be applied before 
computing fees. DD Form 2086 (Record of Freedom of Information (FOI) 
Processing Cost) will be used to annotate fees for processing FOIA 
information.
    (i) Refunds. In the event that an Activity discovers that it has 
overcharged a requester or a requester has overpaid, the Activity shall 
promptly refund the charge to the requester by reimbursement methods 
that are agreeable to the requester and the Activity.



Sec. 518.20  Collection of fees and fee rates.

    (a) 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 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 Activity, or the 
Activity has determined that the fee will be in excess of $250.
    (b) Search time-(1) Costs for manual searches.

------------------------------------------------------------------------
                                                             Hourly rate
                Type                          Grade              ($)
------------------------------------------------------------------------
Clerical...........................  E9/GS 8 and below.....           20
Professional.......................  1-06/GS 9-GS 15.......           44
Executive..........................  07/ST/SL/SES-1 and               75
                                      above.
Contractor.........................  ......................           44
------------------------------------------------------------------------

    (2) Computer search. Fee assessments for computer search consists of 
two parts; individual time (hereafter referred to as human time), and 
machine time.
    (i) Human time. Human time is all the time spent by humans 
performing the necessary tasks to prepare the job for a machine to 
execute the run command. If execution of a run requires monitoring by a 
human, that human time may be also assessed as computer search. The 
terms ``programmer/operator'' shall not be limited to the traditional 
programmers or operators. Rather, the terms shall be interpreted in 
their broadest sense to incorporate any human involved in performing the 
computer job (e.g. technician, administrative support, operator, 
programmer, database administrator, or action officer).
    (ii) Machine time. Machine time involves only direct costs of the 
Central Processing Unit (CPU), input/output devices, and memory capacity 
used in the actual computer configuration. Only this CPU rate shall be 
charged. No other machine related costs shall be charged. In situations 
where the capability does not exist to calculate CPU time, no machine 
costs can be passed on to the requester. When CPU calculations are not 
available, only human time costs shall be assessed to requesters. Should 
Army Activities lease computers, the services charged by the lesser 
shall not be passed to the requester under the FOIA.
    (c) Duplication costs.

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

    (d) Review time costs (in the case of commercial requesters).

------------------------------------------------------------------------
                                                             Hourly rate
                Type                          Grade               ($)
------------------------------------------------------------------------
Clerical...........................  E9/GS 8 and below.....           20
Professional.......................  01-06/GS 9-GS 15......           44
Executive..........................  07/ST/SL/SES-1 and               75
                                      above.
Contractor.........................  ......................           44
------------------------------------------------------------------------

    (e) Audiovisual documentary materials. Search costs are computed as 
for any other record. Duplication cost is the

[[Page 169]]

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.''
    (f) Other records. Direct search and duplication cost for any record 
not described above shall be computed in the manner described for 
audiovisual documentary material.
    (g) Costs for special services. Complying with requests for special 
services is at the discretion of the Activities. Neither the FOIA, nor 
its fee structure cover these kinds of services. Therefore, Activities 
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:
    (1) Certifying that records are true copies; and/or
    (2) Sending records by special methods such as express mail, etc.



Sec. 518.21  Collection of fees and fee rates for technical data.

    (a) Fees for technical data. 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. Army Activities 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 
known market value, charges shall be based on recovery of full costs to 
the Federal Government. The full costs 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 for other types of information released under the 
FOIA. DD Form 2086-1 will be used to annotate fees for technical data. 
The form is available through normal publication channels.
    (b) Waiver. Activities shall waive the payment of costs described in 
paragraph (a) of this section, which are greater than the costs that 
would be required for release of this same information if 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, Activities 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;
    (1) The release of technical data is requested in order to comply 
with the terms of an international agreement; or,
    (2) The Activity determines that such a waiver is in the interest of 
the United States.
    (c) Fee rates-(1) Costs for a manual search of technical data.

------------------------------------------------------------------------
                                                             Hourly rate
                Type                          Grade              ($)
------------------------------------------------------------------------
Clerical...........................  E9/GS 8 and below.....        13.25
Minimum Charge.....................  ......................        8.30
------------------------------------------------------------------------
Notes: Professional and Executive (To be established at actual hourly
  rate prior to search. A minimum charge will be established at \1/2\
  hourly rates.

    (2) Computer search is based on the total cost of the cpu, input-
output devices, and memory capacity of the actual computer 
configuration. The wage

[[Page 170]]

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.
    (d) Duplication costs for technical data.

------------------------------------------------------------------------
                                                                   Cost
                              Type                                 ($)
------------------------------------------------------------------------
Aerial photograph, maps, specifications, permits, charts,           2.50
 blueprints, and other technical engineering documents.........
Engineering data (microfilm)...................................
    a. 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
    b. 35 mm roll film, per frame..............................      .50
    c. 16 mm roll film, per frame..............................      .45
    d. Paper prints (engineering drawings), each...............     1.50
    e. Paper reprints of microfilm indices, each...............      .10
------------------------------------------------------------------------

    (e) Review time costs of technical data.

------------------------------------------------------------------------
                                                                  Hourly
                 Type                            Grade             rate
                                                                   ($)
------------------------------------------------------------------------
Clerical.............................  E9/GS 8 and below.......    13.25
Minimum Charge                         ........................    8.30
------------------------------------------------------------------------
Notes: Professional and Executive (To be established at actual hourly
  rate prior to search. A minimum charge will be established at \1/2\
  hourly rates.

    (f) Other technical data records. Charges for any additional 
services not specifically consistent with Volume 11A of DoD 7000.14-R, 
shall be made by Activities at the following rates:

------------------------------------------------------------------------
                                                                   Cost
                              Type                                 ($)
------------------------------------------------------------------------
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
------------------------------------------------------------------------



                            Subpart G_Reports



Sec. 518.22  Reports control.

    (a) General. (1) The Annual FOIA Report is mandated by the statute 
and reported on a fiscal year basis. Due to the magnitude of the 
requested statistics and the need to ensure accuracy of reporting, Army 
Activities shall track this data as requests are processed. This will 
also facilitate a quick and accurate compilation of statistics. Army 
Activities shall forward their report to DA, FOIA/PA Office, no later 
than October 15 following the fiscal year's close. It may be submitted 
electronically and via hard copy accompanied by a computer diskette. In 
turn, DA and DoD will produce a consolidated report for a submission to 
the Attorney General and ensure that a copy of the consolidated report 
is placed on the Internet for public access.
    (2) Existing Army standards and registered data elements are to be 
utilized to the greatest extent possible in accordance with the 
provisions of DoD 8320.1-M, ``Data Administration Procedures.''
    (3) The reporting requirement outlined is assigned Report Control 
Symbol DD-DA&M(A)1365, FOIA Report to Congress.
    (b) Reporting time. Each DA IDA shall prepare statistics and 
accumulate paperwork for the preceding fiscal year on those items 
prescribed for the annual report. The IDAs will follow guidelines below 
and submit the information to the DA, FOIA/PA Office, on or before the 
15th day of each October.
    (1) Each reporting activity will submit the information requested on 
the DD Form 2564, ``Annual Report Freedom of Information Act.'' The form 
is available through normal publication channels.
    (2) Each IDA will submit the information requested on the DD Form 
2564, excluding items 3, 4, and 9c.
    (3) The Judge Advocate General (DAJA) and Chief of Engineers (COE) 
will submit the information requested on the Form DD 2564, item 9c.
    (4) The General Counsel (SAGC) will submit the information requested 
on the DD Form 2564, items 3 and 4.
    (5) The DA, FOIA/PA Office will compile the data submitted in the 
Army's Annual Report. This report will be submitted to the DoD Office 
for Freedom of Information and Security Review on or before the 30th day 
of each November.



Sec. 518.23  Annual report content.

    The current edition of DD Form 2564 shall be used to submit Activity 
input. Instructions for completion follows:
    (a) ITEM 1 Initial Request Determinations. Please note that initial 
PA requests, which are also processed as initial FOIA requests, are 
reported here.

[[Page 171]]

    (1) Total requests processed. Enter the total number of initial FOIA 
requests responded to (completed) during the fiscal year. This should 
include pending cases at the end of the prior fiscal year, Total Actions 
is the sum of Items 1b through 1e, on the DD Form 2564. This total may 
exceed Total Requests Processed.
    (2) Granted in full. Enter the total number of initial FOIA requests 
responded to that were granted in full during the fiscal 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 initial FOIA requests 
responded to and denied in part based on one or more of the FOIA 
exemptions. (Do not report ``Other Reason Responses'' as a partial 
denial here, unless a FOIA exemption is also used).
    (4) Denied in full. Enter the total number of initial FOIA requests 
responded to and denied in full based on one or more of the FOIA 
exemptions. (Do not report ``Other Reason Responses'' as denials here, 
unless a FOIA exemption is also used).
    (5) ``Other Reason'' responses. Enter the total number of initial 
FOIA requests in which you were unable to provide all or part of the 
requested information based on an ``Other Reason'' response.
    (6) Total actions. Enter the total number of FOIA actions taken 
during the fiscal year. This number will be the sum of items 1b, through 
1e. Total Actions must be equal to or greater than the number of Total 
Requests Processed.
    (b) ITEM 2 Initial Request Exemptions and Other Reasons--(1) 
Exemptions invoked on initial request 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 (3) and (4), above. The (b)(7) exemption is reported by 
subcategories (A) through (F): (A) Interfere with Enforcement; (B) Fair 
Trial Right; (C) Invasion of Privacy; (D) Protect Confidential Source; 
(E) Disclose Techniques, and (F) Endanger Life or Safety.
    (2) ``Other Reasons'' cited on initial determinations. Identify the 
``Other Reason'' response cited when responding to a FOIA request and 
enter the number of times each was claimed.
    (i) No records. Enter the number of times a reasonable search of 
files failed to identify records responsive to subject request.
    (ii) Referrals. Enter the number of times a request was referred to 
another DoD Component or Federal Agency for action.
    (iii) Request withdrawn. Enter the number of times a request and/or 
appeal was withdrawn by a requester.
    (iv) Fee-related reason. Requester is unwilling to pay the fees 
associated with a request; the requester is past due in the payment of 
fees from a previous FOIA request; or the requester disagrees with a fee 
estimate.
    (v) Records not reasonably described. Enter the number of times a 
FOIA request could not be acted upon since the record had not been 
described with sufficient particularity to enable the Army Activity to 
locate it by conducting a reasonable search.
    (vi) Not a proper FOIA request for some other reason. Enter the 
number of times the requester has failed unreasonably to comply with 
procedural requirements, other than fee-related imposed by this part or 
an Army Activity's supplementing regulation.
    (vii) Not an agency record. Enter the number of times a requester 
was provided a response indicating the requested information was not a 
record within the meaning of the FOIA and this part.
    (viii) Duplicate request. Record number of duplicate requests closed 
for that reason (e.g., request for the same information by the same 
requester). This includes identical requests received via different 
means (e.g., electronic mail, facsimile, mail, and courier) at the same 
or different times.
    (ix) Other (specify). Any other reason a requester does not comply 
with published rules, other than those reasons outlined in paragraphs 
(b)(2)(i) through (viii) of this section.

[[Page 172]]

    (x) Total. Enter the sum of paragraphs (b)(2)(i) through (ix) of 
this section, in the block provided on the form (total other reasons). 
This number will be equal to or greater than the number in item 1e on 
the report form, since more than one reason may be claimed for each 
``Other Reason'' response.
    (3) (b)(3) Statutes invoked on initial determinations. Identify the 
number of times you have used a specific statute to support each (b)(3) 
exemption. List the statutes used to support each (b)(3) exemption; the 
number of instances in which the statute was cited; note whether or not 
the statute has been upheld in a court hearing; and provide a concise 
description of the material withheld in each individual case by the 
statute's use. Ensure you cite the specific sections of the acts 
invoked. The total number of instances reported will be equal to or 
greater than the total number of (b)(3) exemptions listed in Item 2a on 
the report form.
    (c) ITEM 3 Appeal Determinations. Please note that PA appeals, which 
are also processed as FOIA appeals, are reported here.
    (1) Total appeal responses. Enter the total number of FOIA appeals 
responded to (completed) during the fiscal 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 FOIA exemptions. (Do 
not report ``Other Reason Responses'' as a partial denial here, unless a 
FOIA exemption is used also.)
    (4) Denied in full. Enter the total number of FOIA appeals responded 
to and denied in full based on one or more of the FOIA exemptions. (Do 
not report ``Other Reason Responses'' as denials here, unless a FOIA 
exemption is used also).
    (5) ``Other Reason'' responses. Enter the total number of FOIA 
appeals in which you were unable to provide the requested information 
based on an ``Other Reason'' response.
    (6) Total actions. Enter the total number of FOIA appeal actions 
taken during the fiscal year. This number will be the sum of items 3b, 
through 3e, and should be equal to or greater than the number of Total 
Appeal Responses, item 3a on the report form.
    (d) ITEM 4 Appeal Exemptions and Other Reasons-(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 items 
3c, and 3d on the report form. Note that the (b)(7) exemption is 
reported by subcategory (A) through (F): (A) Interfere with Enforcement; 
(B) Fair Trial Right; (C) Invasion of Privacy; (D) Protect Confidential 
Source; (E) Disclose Techniques, and (F) Endanger Life or Safety.
    (2) ``Other Reasons'' cited on appeal determinations. Identify the 
``Other Reason'' response cited when responding to a FOIA appeal and 
enter the number of times each was claimed. This number may be equal to 
or possibly greater than the number in item 3e on the report form, since 
more than one reason may be claimed for each ``Other Reason'' response.
    (3) (b)(3) Statutes invoked on appeal determinations. Identify the 
number of times a specific statute has been used to support each (b)(3) 
exemption identified in item 4a on the report form DD 2564. List the 
statutes used to support each (b)(3) exemption; the number of instances 
in which the statute was cited; note whether or not the statute has been 
upheld in a court hearing; and provide a concise description of the 
material withheld in each individual case by the statute's use. Ensure 
citation to the specific sections of the statute invoked. The total 
number of instances reported will be equal to or greater than the total 
number of (b)(3) exemptions listed in Item 4a on the report form.
    (e) ITEM 5 Number and Median Age of Initial Cases Pending:
    (1) Total initial cases pending:
    (i) Beginning and ending report period: Midnight, 2400 hours, 
September 30, of the Preceding Year--or--0001 hours, October 1, is the 
beginning of the report period. Midnight, 2400 hours, is the close of 
the reporting period.

[[Page 173]]

    (ii) The number for the beginning report period must be the same 
number reported as of the end of the report period from the previous 
report.
    (2) Median age of initial requests pending: Report the median age in 
days (including holidays and weekends) of initial requests pending.
    (3) Examples of median calculation. (i) If given five cases aged 10, 
25, 35, 65, and 100 days from date of receipt as of the previous 
September 30th, the total requests pending is five (5). The median age 
(days) of open requests is the middle, not average value, in this set of 
numbers (10, 25, 35, 65, and 100), 35 (the middle value in the set).
    (ii) If given six pending cases, aged 10, 20, 30, 50, 120, and 200 
days from date of receipt, as of the previous September 30th, the total 
requests pending is six (6). The median age (days) of open requests 40 
days (the mean [average] of the two middle numbers in the set, in this 
case the average of middle values 30 and 50).
    (4) Accuracy of calculations. Activities must ensure the accuracy of 
calculations. As backup, the raw data used to perform calculations 
should be recorded and preserved. This will enable recalculation of 
median [and mean values] as necessary. Activities may require 
subordinate elements to forward raw data, as deemed necessary and 
appropriate.
    (5) Average. If an Activity believes that ``average'' (mean) 
processing time is a better measure of performance, then report 
``averages'' (means) as well as median values (e.g., with data reflected 
and plainly labeled on plain bond as an attachment to the report). 
However, ``average'' (mean) values will not be included in the 
consolidated Army report unless all Activities report it.
    (f) ITEM 6 Number of Initial Requests Received During the Fiscal 
Year. Enter the total number of initial FOIA requests received during 
the reporting period (fiscal year being reported).
    (g) ITEM 7 Types of Requests Processed and Median Age. Information 
is reported for three types of initial requests completed during the 
reporting period: Simple; Complex; and Expedited Processing. The 
following items of information are reported for these requests:
    (1) Total number of initial requests. Enter the total number of 
initial requests processed [completed] during the reporting period 
(fiscal year) by type (Simple, Complex and Expedited Processing) in the 
appropriate row on the form.
    (2) Median age (days). Enter the median number of days [calendar 
days including holidays and weekends] required to process each type of 
case (Simple, Complex and Expedited Processing) during the period in the 
appropriate row on the form.
    (3) Example. Given seven initial requests, multitrack--simple 
completed during the fiscal year, aged 10, 25, 35, 65, 79, 90 and 400 
days when completed. The total number of requests completed was seven 
(7). The median age (days) of completed requests is 65, the middle value 
in the set.
    (h) ITEM 8 Fees Collected From the Public. Enter the total amount of 
fees collected from the public during the fiscal year. This includes 
search, review and reproduction costs only.
    (i) ITEM 9 FOIA Program Costs-(1) Number of full time staff. Enter 
the number of personnel your agency had dedicated to working FOIA full 
time during the fiscal year. This will be expressed in work-years [man-
years]. For example: ``5.1, 3.2, 1.0, 6.5, et al.''

     Table 7-1--Sample Computation of Work Years for Full Time Staff
------------------------------------------------------------------------
                                Number of
           Employee               months     Work-years        Note
                                  worked
------------------------------------------------------------------------
Smith, Jane..................            6          .50  Hired full time
                                                          at middle of
                                                          fiscal year
Public, John Q...............            4          .34  Dedicated to
                                                          full time FOIA
                                                          processing
                                                          last quarter
                                                          of the fiscal
                                                          year
Brown, Tom...................           12         1.00  Worked FOIA
                                                          full time all
                                                          fiscal year
                              --------------------------
Totals.......................           22         1.84  ...............
------------------------------------------------------------------------

    (2) Number of part time staff. Enter the number of personnel your 
agency had dedicated to working FOIA part time during the fiscal year. 
This will be expressed in work-years [man-years]. For example: ``5.1, 
3.2, 1.0, 6.5, et al.''

[[Page 174]]



        Table 7-2--Computation of Work Years for Part Time Staff
------------------------------------------------------------------------
                                Number of
           Employee               months     Work-years        Note
                                  worked
------------------------------------------------------------------------
Public, John Q...............          200           .1  Amount of time
                                                          devoted to
                                                          part time FOIA
                                                          processing
                                                          before
                                                          becoming full
                                                          time FOIA
                                                          processor in
                                                          previous
                                                          example
White, Sally.................          400           .2  Processed FOIAs
                                                          part time
                                                          while working
                                                          as paralegal
                                                          in General
                                                          Counsel's
                                                          Office
Peters, Ron..................        1,000           .5  Part time
                                                          employee
                                                          dedicated to
                                                          FOIA
                                                          processing
                              -------------
Totals.......................  1,600/2,000
                                    (hours
                               worked in a
                                     year)
                                equals 0.8
                                work-years
------------------------------------------------------------------------

    (3) Estimated litigation cost. Report your best estimate of 
litigation costs for the FY. Include all direct and indirect expenses 
associated with FOIA litigation in U.S. District Courts, U.S. Circuit 
Courts of Appeals, and the U.S. Supreme Court.
    (4) Total program cost. Report the total cost of FOIA program 
operation within your agency. Include your litigation costs in this 
total. While you do not have to report detailed cost information as in 
the past, you should be able to explain the techniques by which you 
derived you agency's total cost figures if the need arises.
    (i) Before the close of each fiscal year, the DoD OFOISR will 
dispatch the latest OSD Composite Rate Chart for military personnel to 
DoD Components. This information may be used in computing military 
personnel costs.
    (ii) Army Activities should compute their civilian personnel costs 
using rates from local Office of Personnel Management (OPM) Salary 
Tables and shall add 16% for benefits.
    (iii) Data captured on DD Form 2086, and DD Form 2086-1, shall be 
summarized and used in computing total costs.
    (iv) An overhead rate of 25% shall be added to all calculated costs 
for supervision, space, and administrative support.
    (j) ITEM 10 Authentication. The official that approves the agency's 
report submission to DA will sign and date; enter typed name and duty 
title; and provide both the agency's name and phone number for questions 
about the report. The consolidated Annual FOIA Report will be made 
available to the public in electronic format by DoD.



                 Sec. Appendix A to Part 518--References

    (a) References.
    (1) AR 1-20 Legislative Liaison;
    (2) AR 20-1 Inspector General Activities and Procedures;
    (3) AR 25-1 The Army Information Management;
    (4) AR 25-11 Record Communications and the Privacy Communications 
System;
    (5) AR 25-400-2 The Army Records Information Management System 
(ARIMS);
    (6) AR 27-20 Claims;
    (7) AR 36-2 Audit Reports and Follow-up;
    (8) AR 40-66 Medical Record Administration and Health Care 
Documentation;
    (9) AR 40-68 Quality Assurance Administration;
    (10) AR 40-400 Patient Administration;
    (11) AR 195-2 Criminal Investigation Activities;
    (12) AR 25-71 The Army Privacy Program;
    (13) AR 360-1 The Army Public Affairs Program;
    (14) AR 380-5 Department of the Army Information Security Program;
    (15) AR 381-10 U.S. Army Intelligence Activities;
    (16) AR 381-12 Subversion and Espionage Directed Against The U.S. 
Army (SAEDA);
    (17) AR 381-20 The Army Counterintelligence Program;
    (18) AR 530-1 Operations Security (OPSEC);
    (19) AR 600-85 Army Substance Abuse Program; and
    (20) AR 608-18 The Army Family Advocacy Program.
    (b) Related publications. A related publication is merely a source 
of additional information. The user does not have to read it to 
understand this part.
    (1) AR 10-5 Headquarters, Department of the Army;
    (2) AR 27-10 Military Justice;
    (3) AR 27-40 Litigation;
    (4) AR 27-60 Intellectual Property;
    (5) AR 60-20 Army and Air Force Exchange Service Operating Policies 
AFR 147-14;
    (6) AR 70-31 Standards for Technical Reporting;
    (7) AR 190-45 Law Enforcement Reporting;
    (8) AR 380-10 Foreign Disclosure and Contacts with Foreign 
Representatives;
    (9) AR 381-45 Investigative Records Repository;

[[Page 175]]

    (10) AR 385-40 Accident Reporting and Records;
    (11) DA Pam 25-30 Consolidated Army Publications and Index Forms;
    (12) DA Pam 25-51 The Army Privacy Program--System of Records 
Notices and Exemption Rules;
    (13) DoD Directive 5100.3 Support of the Headquarters of Combatant 
and Subordinate Joint Commands, November 15, 1999;
    (14) DoD Directive 5230.24 Distribution Statements on Technical 
Documents, March 18, 1987;
    (15) DoD Directive 5230.25 Withholding of Unclassified Technical 
Data From Public Disclosure, November 6, 1984;
    (16) DoD Directive 5230.9 Clearance of DoD Information for Public 
Release, April 9, 1996;
    (17) DoD Directive 5400.4 Provision of Information to Congress, 
January 30, 1978;
    (18) DoD Directive 5400.7 DoD Freedom of Information Act (FOIA) 
Program, September 29, 1997;
    (19) DoD Directive 5400.11 DOD Privacy Program, December 13, 1999;
    (20) DoD Directive 7650.1 Government Accountability Office (GAO) and 
Comptroller General Access to Records, September 11, 1997;
    (21) DoD Directive 7650.2 Government Accountability Office Reviews 
and Reports, July 13, 2000;
    (22) DoD Directive 8910.1 Management and Control of Information 
Requirements, June 11, 1993;
    (23) DoD Federal Acquisition Regulation Supplement (DFARS), Part 227 
Patents, Data, and Copyrights. See also 48 CFR part 227;
    (24) Department of Defense Financial Management Regulation 
(Reimbursable Operations, Policy and Procedures) Volume 11A, April 2003 
authorized by DoD Instruction 7000.14, DoD Financial Management Policy 
and Procedures, November 15, 1992;
    (25) DoD Instruction 5400.10 OSD Implementation of DoD Freedom of 
Information Act Program, January 24, 1991;
    (26) DoD 5200.1-R Information Security Program, January 1997, 
authorized by DoD Directive 5200.1, December 13, 1996, DoD Information 
Security Program;
    (27) DoD 5400.7-R DoD Freedom of Information Act Program, September 
4, 1998;
    (28) DoD 5400.11-R Department of Defense Privacy Program, August 
1983, authorized by DoD Directive 5400.11, December 13, 1999, DoD 
Privacy Program;
    (29) Executive Order 12600 Predisclosure Notification Procedures for 
Confidential Commercial Information, June 23, 1987, 52 FR 23781;
    (30) Public Law 86-36 National Security Information Exemption, 
Codified at 50 U.S.C. 402, as amended;
    (31) Public Law 104-191 Health Insurance Portability and 
Accountability Act of 1996, Codified at 42 U.S.C. 1171-1179, as amended;
    (32) Section 822 of the National Defense Authorization Act for FY 90 
and 91 (Pub. L. 101-189, November 29, 1989: 103 Stat. 1382, 1503);
    (33) 5 U.S.C. 551-559, Administrative Procedures Act;
    (34) 5 U.S.C. 552, as amended: public information; agency rules, 
opinions, orders, records, and proceedings. (FOIA);
    (35) 5 U.S.C. 552a, as amended: records about individuals, (PA of 
1974);
    (36) 10 U.S.C. 128, Physical Protection of Special Nuclear Material: 
Limitation on Dissemination of Unclassified Information;
    (37) 10 U.S.C. 130, Authority to Withhold from Public Disclosure 
Certain Technical Data;
    (38) 10 U.S.C. 130(b), Personnel in Overseas, Sensitive, or 
Routinely Deployable Units: nondisclosure of personally identifying 
information;
    (39) 10 U.S.C. 1102(f), Confidentiality of Medical Quality Assurance 
Records: Qualified Immunity for Participants;
    (40) 10 U.S.C. 2305(g) Prohibition on Release of Contractor 
Proposals;
    (41) 10 U.S.C. 2320-2321, Rights in Technical Data;
    (42) 10 U.S.C. 2328, Release of Technical Data under Freedom of 
Information Act: Recovery of Costs;
    (43) 17 U.S.C. 106, Exclusive Rights in Copyrighted Works;
    (44) 18 U.S.C. 798, Disclosure of Classified Information;
    (45) 18 U.S.C. 3500, The Demands for Production of Statements and 
Reports of Witnesses (The Jencks Act);
    (46) 31 U.S.C. 3717, Interest and Penalty on Claims;
    (47) 32 CFR part 518, The Army FOIA Program;
    (48) 35 U.S.C. 181-188, Secrecy of Certain Inventions and Filing of 
Application in Foreign Country;
    (49) 41 U.S.C. 423, Restrictions on Disclosing and Obtaining 
Contractor Bid or Proposal Information or Source Selection Information;
    (50) 42 U.S.C. 2162, Classification and Declassification of 
Restricted Data;
    (51) 44 U.S.C. 3301-3324, Disposal of Records;
    (52) 45 CFR part 164, Security and Privacy of Individually 
Identifiable Health Information; and
    (53) 50 U.S.C. 403-3, War and National Defense, Protection of 
Intelligence Sources and Methods.



          Sec. Appendix B to Part 518--Addressing FOIA Requests

    (a) General. Army records may be requested from those Army officials 
who are listed in 32 CFR part 518 (see appendix A). Contact the

[[Page 176]]

DA FOIA/PA Office, to coordinate the referral of requests 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. See also: http://books.army.mil/.
    (2) Send the request to the commander of the command, installation, 
or organization, to the attention of the FOIA Official.
    (3) Consult AR 25-400-2 (ARIMS) for more detailed listings of all 
record categories kept in DA offices.
    (4) 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.
    (b) Department of the Army publications. Send requests for current 
administrative, training, technical, and supply publications to the 
National Technical Information Service, U.S. Department of Commerce, 
5285 Port Royal Road, Springfield, VA 22161. NTIS handles general public 
requests for unclassified, uncopyrighted, and nondistribution-restricted 
Army publications not sold through the Superintendent of Documents.
    (c) Military personnel records. Send requests for military personnel 
records of information as follows:
    (1) Army Reserve personnel not on active duty and retired 
personnel--Commander, U.S. Army Human Resources Command, St. Louis, 1 
Reserve Way, St. Louis, MO 63132-5200.
    (2) Army officer personnel discharged or deceased after July 1, 1917 
and Army enlisted personnel discharged or deceased after November 1, 
1912--Director, National Personnel Records Center, 9700 Page Ave., St. 
Louis, MO 63132-5100.
    (3) Army personnel separated before the dates specified in paragraph 
(2), above--Old Military and Civilian Records Unit (Archives 1), 
National Archives and Records Administration, Washington, DC 20408-0001.
    (4) Army National Guard officer personnel--Chief, National Guard 
Bureau. Army National Guard enlisted personnel--Adjutant General of the 
proper State.
    (5) Active duty commissioned and warrant officer personnel--
Commander, U.S. Army Human Resources Command, ATTN: AHRC-FOI, 
Alexandria, VA 22332-0404. Active duty enlisted personnel--Commander, 
U.S. Army Enlisted Records and Evaluation Center, ATTN: PCRE-RP, 8899 
East 56th Street, Indianapolis, IN 46249-5301.
    (d) Medical records.
    (1) Medical records of non-active duty military personnel. Use the 
same addresses as for military personnel records.
    (2) Medical records of military personnel on active duty. Address 
the medical treatment facility where the records are kept. If necessary 
request locator service.
    (3) 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, Civilian Records Facility, 111 Winnebago St., 
St. Louis, MO 63118-4199.
    (e) Legal records.
    (1) Records of general courts-martial and special courts-martial in 
which 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 Services Agency, 
ATTN: JALS-CCO, 901 North Stuart Street, Arlington, VA 22203.
    (2) 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 three 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 Ave., 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.
    (3) 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 years 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 the 
person's permanent records.
    (4) Requests submitted under paragraphs (e) (2) and (3), of this 
appendix. These requests will be processed in accordance with subpart E 
of this part. The IDA is The Judge Advocate General, HQDA (DAJA-CL), 
Washington, DC 20310-2200.
    (5) Administrative settlement of claims. Apply to the Chief, U.S. 
Army Claims Service, ATTN: JACS-TC, Building 4411, Llewellyn Avenue, 
Fort George G. Meade, MD 20755-5360.
    (6) Records involving debarred or suspended contractors. Apply to 
U.S. Army Legal Services Agency (JALS-PF), 901 North Stewart Street, 
Arlington, VA 22203.
    (7) Records of all other legal matters (other than records kept by a 
command, installation, or organization staff judge advocate). Apply to 
HQDA (DAJA-AL), Washington, DC 20310-2200.
    (f) Civil works program records. Civil works records include those 
relating to construction, operation, and maintenance for the improvement 
of rivers, harbors, and waterways

[[Page 177]]

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, 20 
Massachusetts Avenue, ATTN: CECC-K, Washington, DC 20314-1000.
    (g) 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, Civilian Records Facility, 
111 Winnebago St., St. Louis, MO 63118-4199.
    (h) 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:
    (1) Army Materiel Command procurement: Commander, U.S. Army Materiel 
Command, ATTN: AMCID-F, 5001 Eisenhower Ave., Alexandria, VA 22333-0001.
    (2) Corps of Engineers procurement: Commander, U.S. Army Corps of 
Engineers, 20 Massachusetts Avenue, ATTN: CECC-K, Washington, DC 20314-
1000.
    (3) All other procurement: HQDA (DAJA-KL), 2200 Army Pentagon, 
Washington, DC 20310-2200.
    (i) Criminal investigation files. Send requests involving criminal 
investigation files to the Commander, U.S. Army Criminal Investigation 
Command, ATTN: CICR-FP, 6010 6th St., Bldg. 1465, Ft. Belvoir, 
VA 22060-5585. Only the Commanding General, USACIDC, can release any 
USACIDC-originated criminal investigation file.
    (j) 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: IAMG-CIC-FOI/PO, 4552 Pike Road, Fort George 
G. Meade, MD 20755-5995.
    (k) Inspector General records. Send requests involving records 
within the Inspector General system to HQDA (SAIG-ZXL), 1700 Army 
Pentagon, Washington, DC 20310-1700. AR 20-1 governs such records.
    (l) Army records in Government records depositories. Non-current 
Army records are in the National Archives of the United States, 
Washington, DC 20408-0001; in Federal Records Centers of NARA; and in 
other records depositories. Requesters must write directly to the heads 
of these depositories for copies of such records. A list of pertinent 
records depositories is published in AR 25-400-2, table 10-1.



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 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.


[[Page 178]]


    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.
    (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

[[Page 179]]

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, 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.

[[Page 180]]

    (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.
    (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.

[[Page 181]]

    (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.
    (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.

[[Page 182]]

    (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.
    (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.

[[Page 183]]



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 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.

[[Page 184]]



                    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 185]]

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

[[Page 186]]

and returning from the same, and 8 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 187]]

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 188]]

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_The Army Claims System

Sec.
536.1 Purpose of the Army Claims System.
536.2 Claims authorities.
536.3 Command and organizational relationships.
536.4 Designation of claims attorneys.
536.5 The Judge Advocate General.
536.6 The Army claims mission.
536.7 Responsibilities of the Commander USARCS.
536.8 Responsibilities and operations of command claims services.
536.9 Responsibilities and operations of area claims offices.
536.10 Responsibilities and operations of claims processing offices.
536.11 Chief of Engineers.
536.12 Commanding General, U.S. Army Medical Command.
536.13 Chief, National Guard Bureau.
536.14 Commanders of major Army commands.
536.15 Claims policies.
536.16 Release of information policies.
536.17 Single-service claims responsibility (DODD 5515.8 and DODD 
          5515.9).
536.18 Cross-servicing of claims.
536.19 Disaster claims planning.
536.20 Claims assistance visits.
536.21 Annual claims award.

            Subpart B_Investigation and Processing of Claims

536.22 Claims investigative responsibility--General.
536.23 Identifying claims incidents both for and against the government.
536.24 Delegation of investigative responsibility.
536.25 Procedures for accepting claims.
536.26 Identification of a proper claim.
536.27 Identification of a proper claimant.
536.28 Claims acknowledgment.
536.29 Revision of filed claims.
536.30 Action upon receipt of claim.
536.31 Opening claim files.
536.32 Transfer of claims among armed services branches.
536.33 Use of small claims procedures.
536.34 Determination of correct statute.
536.35 Unique issues related to environmental claims.
536.36 Related remedies.
536.37 Importance of the claims investigation.
536.38 Elements of the investigation.
536.39 Use of experts, consultants and appraisers.
536.40 Conducting the investigation.
536.41 Determination of liability--generally.

[[Page 189]]

536.42 Constitutional torts.
536.43 Incident to service.
536.44 FECA and LSHWCA claims exclusions.
536.45 Statutory exceptions.
536.46 Other exclusions.
536.47 Statute of limitations.
536.48 Federal employee requirement.
536.49 Scope of employment requirement.
536.50 Determination of damages--applicable law.
536.51 Collateral source rule.
536.52 Subrogation.
536.53 Evaluation of claims--general rules and guidelines.
536.54 Joint tortfeasors.
536.55 Structured settlements.
536.56 Negotiations--purpose and extent.
536.57 Who should negotiate.
536.58 Settlement negotiations with unrepresented claimants.
536.59 Settlement or approval authority.
536.60 Splitting property damage and personal injury claims.
536.61 Advance payments.
536.62 Action memorandums.
536.63 Settlement agreements.
536.64 Final offers.
536.65 Denial notice.
536.66 The ``Parker'' denial.
536.67 Mailing procedures.
536.68 Appeal or reconsideration.
536.69 Retention of file.
536.70 Preparation and forwarding of payment vouchers.
536.71 Fund sources.
536.72 Finality of settlement.

        Subpart C_Claims Cognizable Under the Military Claims Act

536.73 Statutory authority for the Military Claims Act.
536.74 Scope for claims under the Military Claims Act.
536.75 Claims payable under the Military Claims Act.
536.76 Claims not payable under the Military Claims Act.
536.77 Applicable law for claims under the Military Claims Act.
536.78 Settlement authority for claims under the Military Claims Act.
536.79 Action on appeal under the Military Claims Act.
536.80 Payment of costs, settlements, and judgments related to certain 
          medical malpractice claims.
536.81 Payment of costs, settlements, and judgments related to certain 
          legal malpractice claims.
536.82 Reopening an MCA claim after final action by a settlement 
          authority.

      Subpart D_Claims Cognizable Under the Federal Tort Claims Act

536.83 Statutory authority for the Federal Tort Claims Act.
536.84 Scope for claims under the Federal Tort Claims Act.
536.85 Claims payable under the Federal Tort Claims Act.
536.86 Claims not payable under the Federal Tort Claims Act.
536.87 Applicable law for claims under the Federal Tort Claims Act.
536.88 Settlement authority for claims under the Federal Tort Claims 
          Act.
536.89 Reconsideration of Federal Tort Claims Act claims.

       Subpart E_Claims Cognizable Under the Non-Scope Claims Act

536.90 Statutory authority for the Non-Scope Claims Act.
536.91 Scope for claims under the Non-Scope Claims Act.
536.92 Claims payable under the Non-Scope Claims Act.
536.93 Claims not payable under the Non-Scope Claims Act.
536.94 Settlement authority for claims under the Non-Scope Claims Act.
536.95 Reconsideration of Non-Scope Claims Act claims.

     Subpart F_Claims Cognizable Under the National Guard Claims Act

536.96 Statutory authority for the National Guard Claims Act.
536.97 Scope for claims under the National Guard Claims Act.
536.98 Claims payable under the National Guard Claims Act.
536.99 Claims not payable under the National Guard Claims Act.
536.100 Applicable law for claims under the National Guard Claims Act.
536.101 Settlement authority for claims under the National Guard Claims 
          Act.
536.102 Actions on appeal under the National Guard Claims Act.

       Subpart G_Claims Cognizable Under International Agreements

536.103 Statutory authority for claims cognizable under international 
          claims agreements.
536.104 Current agreements in force.
536.105 Responsibilities generally/international agreements claims.
536.106 Definitions for international agreements claims.
536.107 Scope for international agreements claims arising in the United 
          States.

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536.108 Claims payable under international agreements (for those arising 
          in the United States).
536.109 Claims not payable under international agreements (for those 
          arising in the United States).
536.110 Notification of incidents arising under international agreements 
          (for claims arising in the United States).
536.111 Investigation of claims arising under international agreements 
          (for those claims arising in the United States).
536.112 Settlement Authority for claims arising under international 
          agreements (for those claims arising in the United States).
536.113 Assistance to foreign forces for claims arising under 
          international agreements (as to claims arising in the United 
          States).
536.114 Scope for claims arising overseas under international 
          agreements.
536.115 Claims procedures for claims arising overseas under 
          international agreements.
536.116 Responsibilities as to claims arising overseas under 
          international agreements.

                        Subpart H_Maritime Claims

536.117 Statutory authority for maritime claims.
536.118 Related statutes for maritime claims.
536.119 Scope for maritime claims.
536.120 Claims payable as maritime claims.
536.121 Claims not payable as maritime claims.
536.122 Limitation of settlement of maritime claims.
536.123 Limitation of liability for maritime claims.
536.124 Settlement authority for maritime claims.

Subpart I_Claims Cognizable Under Article 139, Uniform Code of Military 
                                 Justice

536.125 Statutory authority for the Uniform Code of Military Justice 
          (UCMJ) claims.
536.126 Purpose of UCMJ claims.
536.127 Proper claimants; unknown accused--under the UCMJ.
536.128 Effect of disciplinary action, voluntary restitution, or 
          contributory negligence for claims under the UCMJ.
536.129 Claims cognizable as UCMJ claims.
536.130 Claims not cognizable as UCMJ claims.
536.131 Limitations on assessments arising from UCMJ claims.
536.132 Procedure for processing UCMJ claims.
536.133 Reconsideration of UCMJ claims.
536.134 Additional claims judge advocate and claims attorney 
          responsibilities (for UCMJ claims).

        Subpart J_Claims Cognizable Under the Foreign Claims Act

536.135 Statutory authority for the Foreign Claims Act.
536.136 Scope for claims arising under the Foreign Claims Act.
536.137 Claims payable under the Foreign Claims Act.
536.138 Claims not payable under the Foreign Claims Act.
536.139 Applicable law for claims under the Foreign Claims Act.
536.140 Appointment and functions of Foreign Claims Commissions.
536.141 Composition of Foreign Claims Commissions.
536.142 Qualification of members of Foreign Claims Commissions.
536.143 Settlement authority of Foreign Claims Commissions.
536.144 Reopening a claim after final action by a Foreign Claims 
          Commission.
536.145 Solatia payment.

                  Subpart K_Nonappropriated Fund Claims

536.146 Claims against nonappropriated fund employees--generally.
536.147 Claims by NAFI employees for losses incident to employment.
536.148 Claims generated by the acts or omissions of NAFI employees.
536.149 Identification of persons whose actions may generate liability.
536.150 Claims payable from appropriated funds.
536.151 Settlement authority for claims generated by acts or omissions 
          of NAFI employees.
536.152 Payment of claims generated by acts or omissions of NAFI 
          employees.
536.153 Claims involving tortfeasors other than nonappropriated fund 
          employees: NAFI contractors.
536.154 Claims involving tortfeasors other than nonappropriated fund 
          employees: NAFI risk management program (RIMP) claims.
536.155 Claims payable involving tortfeasors other than nonappropriated 
          fund employees.
536.156 Procedures for claims involving tortfeasors other than 
          nonappropriated fund employees.
536.157 Settlement/approval authority for claims involving tortfeasors 
          other than nonappropriated fund employees.

    Authority: 10 U.S.C. 2733; 10 U.S.C. 1089; 10 U.S.C. 1054; 28 U.S.C. 
1291, 2401-2402, 2411-2412, 2671-2680; 10 U.S.C. 2737; 32 U.S.C. 715; 10 
U.S.C. 2734a, 2734b; 10 U.S.C. 2734; 10 U.S.C. 4801, 4802, 4806; 46 
U.S.C. app. 740; 39 U.S.C. 411; 10 U.S.C. 939; 10 U.S.C. 2736; 10 U.S.C. 
2735; 10 U.S.C. 2731.

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    Source: 71 FR 69360, Nov. 30, 2006, unless otherwise noted.



                    Subpart A_The Army Claims System



Sec. 536.1  Purpose of the Army Claims System.

    This part sets forth policies and procedures that govern the 
investigating, processing, and settling of claims against, and in favor 
of, the United States under the authority conferred by statutes, 
regulations, international and interagency agreements, and Department of 
Defense Directives (DODDs). It is intended to ensure that claims are 
investigated properly and adjudicated according to applicable law, and 
valid recoveries and affirmative claims are pursued against carriers, 
third-party insurers, and tortfeasors.



Sec. 536.2  Claims authorities.

    (a) General. Claims cognizable under the following list of statutes 
and authorities are processed and settled under DA Pam 27-162 and this 
part. All of these materials may be viewed on the USARCS Web site, 
https://www.jagcnet.army.mil/85256F33005C2B92/(JAGCNETDocID)/
HOME?OPENDOCUMENT. Select the link ``Claims Resources.''
    (1) Tort claims. (i) The Military Claims Act (MCA), 10 United States 
Code (U.S.C.) 2733 (see subpart C of this part). The ``incident-to-
service'' provision, applicable to both military and civilian personnel 
of the Department of Defense, is contained in the MCA.
    (ii) The Gonzales Act, 10 U.S.C. 1089. This act permits individual 
suits against health care providers for certain torts (see Sec. 
536.80).
    (iii) Certain suits arising out of legal malpractice, 10 U.S.C. 
1054, discussed at Sec. 536.81 and at DA Pam 27-162, paragraph 2-62f.
    (iv) The Federal Tort Claims Act (FTCA), 28 U.S.C. 1291, 1402, 2401-
2402, 2411-2412, and 2671-2680 (see subpart D of this part). The 
Westfall Act, 28 U.S.C. 2679, an integral part of the FTCA, provides 
absolute immunity from individual suit for common law torts for 
employees of the United States acting within the scope of their 
employment.
    (A) The legislative history of the FTCA.
    (B) Regulations of the Attorney General implementing the Federal 
Tort Claims Act, 28 CFR Part 14.
    (C) An appendix to 28 CFR Part 14 sets forth certain delegations of 
settlement authority to the Secretary of Veterans Affairs, the 
Postmaster General, the Secretary of Defense, the Secretary of 
Transportation, and the Secretary of Health and Human Services.
    (v) The Non-Scope Claims Act (NSCA), 10 U.S.C. 2737 (see subpart E 
of this part).
    (vi) The National Guard Claims Act (NGCA), 32 U.S.C. 715 (see 
subpart F of this part).
    (vii) Claims under International Agreements or the Foreign Claims 
Act.
    (A) International Agreements Claims Act (IACA), 10 U.S.C. 2734a and 
2734b.
    (B) Foreign Claims Act (FCA), 10 U.S.C. 2734 (see subpart J of this 
part).
    (viii) The Army Maritime Claims Settlement Act (AMCSA), 10 U.S.C. 
4801, 4802 and 4806. Affirmative claims under the AMCSA are processed 
under 10 U.S.C. 4803 and 4804 (see Sec. 537.16 of this chapter).
    (ix) Admiralty Extension Act (AEA), 46 U.S.C. app. 740 (see subpart 
H of this part).
    (x) Claims against nonappropriated fund (NAF) activities and the 
risk management program (RIMP) (see subpart K of this part), processed 
under Army Regulation (AR) 215-1 and AR 608-10.
    (xi) Claims by the U.S. Postal Service for losses or shortages in 
postal accounts caused by unbonded Army personnel (39 U.S.C. 411 and 
Department of Defense (DOD) Manual 4525.6-M).
    (2) Personnel claims (subpart I of this part and AR 27-20, chapter 
11).
    (i) The Personnel Claims Act (PCA), 31 U.S.C. 3721 (see AR 27-20, 
chapter 11).
    (ii) Redress of injuries to personal property, Uniform Code of 
Military Justice (UCMJ), Article 139, 10 U.S.C. 939 (see subpart I of 
this part).
    (3) Affirmative claims (32 CFR Part 537).
    (i) The Federal Claims Collection Act (FCCA), 31 U.S.C. 3711-3720E.
    (ii) The Federal Medical Care Recovery Act (FMCRA), 42 U.S.C. 2651-
2653.

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    (iii) Collection from third-party payers of reasonable costs of 
healthcare services, 10 U.S.C. 1095.
    (b) Fund source authority for claims under Title 10 statutes. 10 
U.S.C. 2736, advance payments for certain property claims (see Sec. 
536.71).
    (c) Fund source authority for tort claims paid by Financial 
Management Service (FMS). 31 U.S.C. 1304, provides authority for 
judgments, awards and compromise settlements.
    (d) Additional authorities under Title 10. (1) 10 U.S.C. 2735, 
establishes that settlements (or ``actions'') under the Title 10 claims 
processing statutes are final and conclusive.
    (2) 10 U.S.C. 2731, provides a definition of the word ``settle.''
    (e) Related remedies statutes. The Army frequently receives claims 
or inquiries that are not cognizable under the statutory and other 
authorities administered by the U.S. Army under this publication and DA 
Pam 27-162. Every effort should be made to refer the claim or inquiry to 
the proper authority following the guidance in Sec. 536.34 or Sec. 
536.36. (See also the corresponding paragraphs 2-15 and 2-17, 
respectively, in DA Pam 27-162). Some authorities for related remedies 
are used more frequently than others. Where an authority for a related 
remedy is frequently used, it is listed below and is posted on the 
USARCS Web site (for the address see Sec. 536.2(a)).
    (1) Tucker Act, 28 U.S.C. 1346, provides exclusive jurisdiction in 
the Court of Federal Claims over causes of actions alleging property 
loss caused by a Fifth Amendment ``taking.''
    (2) Maritime authority statutes, Public Vessels Act (PVA), 46 U.S.C. 
app. 781-790, Suits in Admiralty Act (SIAA), 46 U.S.C. app. 741-752, and 
the Rivers and Harbors Act, 33 U.S.C. 408 and 412.
    (3) Federal Employees Compensation Act (FECA), two excerpts: 5 
U.S.C. 8116 and 8140, providing guidance on personal injury and death 
claims by civilian employees arising within the scope of their 
employment (see DA Pam 27-162, paragraph 2-15b) and information on 
certain claims by Reserve Officers Training Corps (ROTC) cadets, 
respectively, (see DA Pam 27-162, paragraph 2-17d(2)).
    (4) Longshore and Harbor Workers Compensation Act (LHWCA), 33 U.S.C. 
901-950.
    (5) Claims for consequential property damage by civilian employees 
may only be considered in the Court of Federal Claims pursuant to 28 
U.S.C. 1491.
    (f) Additional materials. There are some additional authoritative 
materials for the processing of claims, mostly of an administrative 
nature. For a complete listing of all of the supplementary materials 
relevant to claims processing under this publication and DA Pam 27-162 
see appendix B of DA Pam 27-162.
    (g) Conflict of authorities. Where a conflict exists between a 
general provision of this publication and a specific provision found in 
one of this publication's subparts implementing a specific statute, the 
specific provision, as set forth in the statute, will control.



Sec. 536.3  Command and organizational relationships.

    (a) The Secretary of the Army. The Secretary of the Army (SA) heads 
the Army Claims System and acts on certain claims appeals directly or 
through a designee.
    (b) The Judge Advocate General. The SA 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 USARCS to carry out the 
responsibilities assigned in Sec. 536.7 and as otherwise lawfully 
delegable.
    (c) U.S. Army Claims Service. USARCS, a command and component of the 
Office of TJAG, is the agency through which the SA and TJAG discharge 
their responsibilities for the administrative settlement of claims 
worldwide (see AR 10-72). USARCS' mailing address is: U.S. Army Claims 
Service, 4411 Llewellyn Ave., Fort George G. Meade, MD 20755-5360, 
Commercial: (301) 677-7009.
    (d) Command claims services. (1) Command claims services exercise 
general supervisory authority over claims matters arising within their 
assigned areas of operation. Command claims services will:

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    (i) Effectively control and supervise the investigation of 
potentially compensable events (PCEs) occurring within the command's 
geographic area of responsibility, in other areas for which the command 
is assigned claims responsibility, and during the course of the 
command's operations.
    (ii) Provide services for the processing and settlement of claims 
for and against the United States.
    (2) The Commander USARCS, may delegate authority to establish a 
command claims service to the commander of a major overseas command or 
other commands that include areas outside the United States, its 
territories and possessions.
    (i) When a large deployment occurs, the Commander USARCS, may 
designate a command claims service for a limited time or purpose, such 
as for the duration of an operation and for the time necessary to 
accomplish the mission. The appropriate major Army command (MACOM) will 
assist the Commander USARCS, in obtaining resources and personnel for 
the mission.
    (ii) In coordination with the Commander USARCS, the MACOM will 
designate the area of responsibility for each new command claims 
service.
    (3) A command claims service may be a separate organization with a 
designated commander or chief. If it is part of the command's Office of 
the Staff Judge Advocate (SJA), the SJA will also be the chief of the 
command claims service, however, the SJA may designate a field grade 
officer as chief of the service.
    (e) Area claims offices. The following may be designated as area 
claims offices (ACOs):
    (1) An office under the supervision of the senior judge advocate 
(JA) of each command or organization so designated by the Commander 
USARCS. The senior JA is the head of the ACO.
    (2) An office under supervision of the senior JA of each command in 
the area of responsibility of a command claims service so designated by 
the chief of that service after coordination with the Commander USARCS. 
The senior JA is the head of the ACO.
    (3) The office of counsel of each U.S. Army Corps of Engineers (COE) 
district within the United States and such other COE commands or 
agencies as designated by the Commander USARCS, with concurrence of the 
Chief Counsel, Office of the Chief of Engineers, for all claims 
generated within such districts, commands or agencies. The district 
counsel or the attorney in charge of the command's or agency's legal 
office is the head of the ACO.
    (f) Claims processing offices. Claims processing offices (CPOs) are 
normally small legal offices or ACO subordinate elements, designated by 
the Commander USARCS, a command claims service or an ACO. These offices 
are established for the investigation of all actual and potential claims 
arising within their jurisdiction, on either an area, command or agency 
basis. There are four types of claims processing offices (see Sec. 
536.10):
    (1) Claims processing offices without approval authority.
    (2) Claims processing offices with approval authority.
    (3) Medical claims processing offices.
    (4) Special claims processing offices.
    (g) Limitations on delegation of authority under any subpart. (1) 
The Commander USARCS, commanders or chiefs of command claims services, 
or the heads of ACOs or CPOs with approval authority may delegate, in 
writing, all or any portion of their monetary approval authority to 
subordinate JAs or claims attorneys in their services or offices.
    (2) The authority to act upon appeals or requests for 
reconsideration, to deny claims (including disapprovals based on 
substantial fraud), to grant waivers of maximum amounts allowable, or to 
make final offers will not be delegated except that the Commander USARCS 
may delegate this authority to USARCS Division Chiefs.
    (3) CPOs will provide copies of all delegations affecting them to 
the ACO and, if so directed, to command claims services.



Sec. 536.4  Designation of claims attorneys.

    (a) Who may designate. The Commander USARCS, the senior JA of a 
command having a command claims service, the chief of a command claims 
service, the head of an ACO, or the Chief Counsel of a COE District, may

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designate a qualified attorney other than a JA as a claims attorney. The 
head of an ACO may designate a claims attorney to act as a CPO with 
approval authority.
    (b) Eligibility. To qualify as a claims attorney, an individual must 
be a civilian employee of the Department of the Army (DA) or DOD, a 
member of the bar of a state, the District of Columbia, or a 
jurisdiction where U.S. federal law applies, serving in the grade of GS-
11 or above, and performing primary duties as a legal adviser.



Sec. 536.5  The Judge Advocate General.

    TJAG has worldwide Army Staff responsibility for administrative 
settlement of claims by and against the U.S. government, generated by 
employees of the U.S. Army and DOD components other than the Departments 
of the Navy and Air Force. Where the Army has single-service 
responsibility, TJAG has responsibility for the Army. See DODD 5515.9. 
Certain claims responsibilities of TJAG are exercised by The Assistant 
Judge Advocate General (TAJAG) as set forth in this part and directed by 
TJAG.



Sec. 536.6  The Army claims mission.

    (a) Promptly investigate potential claims incidents with a view to 
determining the degree of the Army's exposure to liability, the damage 
potential, and when the third party is at fault, whether the Army should 
take action to collect for medical expenses, lost wages and property 
damage.
    (b) Efficiently and expeditiously dispose of claims against the U.S. 
by fairly settling meritorious claims at the lowest level within the 
claims system commensurate with monetary jurisdiction delegated, or by 
denying non-meritorious claims.
    (c) Develop a system that has a high level of proficiency, so that 
litigation and appeals can be avoided or kept to a minimum.



Sec. 536.7  Responsibilities of the Commander USARCS.

    The Commander USARCS shall:
    (a) Supervise and inspect claims activities worldwide.
    (b) Formulate and implement claims policies and uniform standards 
for claims office operations.
    (c) Investigate, process and settle claims beyond field office 
monetary authority and consider appeals and requests for reconsideration 
on claims denied by the field offices.
    (d) Supervise the investigation, processing, and settlement of 
claims against, and in favor of, the United States under the statutes 
and regulations listed in Sec. 536.2 and pursuant to other appropriate 
statutes, regulations, and authorizations.
    (e) Designate ACOs, CPOs, and claims attorneys within DA and DOD 
components other than the Departments of the Navy and Air Force, subject 
to concurrence of the commander concerned.
    (f) Designate continental United States (CONUS) geographic areas of 
claims responsibility.
    (g) Recommend action to be taken by the SA, TJAG or the U.S. 
Attorney General, as appropriate, on claims in excess of $25,000 or the 
threshold amount then current under the FTCA, on claims in excess of 
$100,000 or the threshold amount then current under the FCA, the MCA, 
the NGCA, AMCSA, FCCA and FMRCA and on other claims that have been 
appealed. Direct communication with Department of Justice (DOJ) and the 
SA's designee is authorized.
    (h) Operate the ``receiving State office'' for claims arising in the 
United States, its territories, commonwealths and possessions cognizable 
under Article VIII of the North Atlantic Treaty Organization (NATO) 
Status of Forces Agreement (SOFA), Partnership for Peace (PFP) SOFA, 
Article XVI of the Singapore SOFA, and other SOFAs which have reciprocal 
claims provisions as delegated by TJAG, as implemented by 10 U.S.C. 
2734a and 2734b (subpart G of this part).
    (i) Settle claims of the U.S. Postal Service for reimbursement under 
39 U.S.C. 411 (see DOD Manual 4525.6-M).
    (j) Settle claims against carriers, warehouse firms, insurers, and 
other third parties for loss of, or damage to, personal property of DA 
or DOD soldiers or civilians incurred while the goods are in storage or 
in transit at

[[Page 195]]

government expense (AR 27-20, chapter 11).
    (k) Formulate and recommend legislation for Congressional enactment 
of new statutes and the amendment of existing statutes considered 
essential for the orderly and expeditious administrative settlement of 
noncontractual claims.
    (l) Perform post-settlement review of claims.
    (m) Prepare, justify, and defend estimates of budgetary requirements 
and administer the Army claims budget.
    (n) Maintain permanent records of claims for which TJAG is 
responsible.
    (o) Assist in developing disaster and maneuver claims plans designed 
to implement the responsibilities set forth in Sec. 536.9(a)(12).
    (p) Develop and maintain plans for a disaster or civil disturbance 
in those geographic areas that are not under the jurisdiction of an area 
claims authority and in which the Army has single-service responsibility 
or in which the Army is likely to be the predominant Armed Force.
    (q) Take initial action, as appropriate, on claims arising in 
emergency situations.
    (r) Provide assistance as available or take appropriate action to 
ensure that command claims services and ACOs are carrying out their 
responsibilities as set forth in Sec. Sec. 536.8 and 536.9, including 
claims assistance visits.
    (s) Serve as proponent for the database management systems for 
torts, personnel and affirmative claims and provide standard automated 
claims data management programs for worldwide use.
    (t) Ensure proper training of claims personnel.
    (u) Coordinate claims activities with the Air Force, Navy, Marine 
Corps, and other DOD agencies to ensure a consistent and efficient joint 
service claims program.
    (v) Investigate, process and settle, and supervise the field office 
investigation and processing of, medical malpractice claims arising in 
Army medical centers within the United States; provide medical claims 
judge advocates (MCJAs), medical claims attorneys, and medical claims 
investigators assigned to such medical centers with technical guidance 
and direction on such claims.
    (w) Coordinate support with the U.S. Army Medical Command (MEDCOM) 
on matters relating to medical malpractice claims.
    (x) Issue an accounting classification to all properly designated 
claims settlement and approval authorities.
    (y) Perform the investigation, processing, and settlement of claims 
arising in areas outside command claims service areas of operation.
    (z) Maintain continuous worldwide deployment and operational 
capability to furnish claims advice to any legal office or command 
throughout the world. When authorized by the chain of command or 
competent authority, issue such claims advice or services, including 
establishing a claims system within a foreign country, interpreting 
claims aspects of international agreements, and processing claims 
arising from Army involvement in civil disturbances, chemical accidents 
under the Chemical Energy Stockpile Program, other man-made or natural 
disasters, and other claims designated by competent authority.
    (aa) Upon receiving both the appropriate authority's directive or 
order and full fiscal authorization, disburse the funds necessary to 
administer civilian evacuation, relocation, and similar initial response 
efforts in response to a chemical disaster arising at an Army facility.
    (bb) Respond to all inquiries from the President, members of 
Congress, military officials, and the general public on claims within 
USARCS' responsibility.
    (cc) Serve as the proponent for this publication and DA Pam 27-162, 
both of which set forth guidance on personnel, tort, disaster and 
affirmative claims, as well as claims management and administration.
    (dd) Provide supervision for the Army's affirmative claims and 
carrier recovery programs, as well as other methods for recovering legal 
debts.
    (ee) Provide support for the overseas environmental claims program 
as designated by the DA.
    (ff) Execute other claims missions as designated by DOD, DA, TJAG 
and other competent authority.

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    (gg) Appoint Foreign Claims Commissions outside Command Claims 
Services' geographic areas of responsibility.
    (hh) Budget for and fund claims investigations and activities; such 
as per diem and transportation of claims personnel, claimants and 
witnesses; independent medical examinations; appraisals; independent 
expert opinions; long distance telephone calls; recording and 
photographic equipment; use of express mail or couriers; and other 
necessary expenses.



Sec. 536.8  Responsibilities and operations of command claims services.

    (a) Chiefs of command claims services. Chiefs of command claims 
services shall:
    (1) Exercise claims settlement authority as specified in this part, 
including appellate authority where so delegated.
    (2) Supervise the investigation, processing, and settlement of 
claims against, and in favor of the United States under the statutes and 
regulations listed in Sec. 536.2, and pursuant to other appropriate 
statutes, regulations, and authorizations.
    (3) Designate and grant claims settlement authority to ACOs. A grant 
of such authority will not be effective until coordinated with the 
Commander USARCS, and assigned an office code. However, the chief of a 
command claims service may redesignate a CPO that already has an 
assigned office code as an ACO without coordination with the Commander 
USARCS. The Commander USARCS will be informed of such a designation.
    (4) Designate and grant claims approval authority to CPOs. Only CPOs 
staffed with a claims judge advocate (CJA) or claims attorney may be 
granted approval authority. A grant of such authority will not be 
effective until coordinated with the Commander USARCS, and assigned an 
office code.
    (5) Train claims personnel and monitor their operations and ongoing 
claims administration. Conduct a training course annually.
    (6) Implement pertinent claims policies.
    (7) Prepare and publish command claims directives.
    (8) Administer the command claims expenditure allowance, providing 
necessary data, estimates, and reports to USARCS on a regular basis.
    (9) Perform the responsibilities of an ACO (see Sec. 536.9), as 
applicable, ensure that SOFA claims are investigated properly and timely 
filed with the receiving State and adequately funded.
    (10) Serve as the United States ``sending State office,'' if so 
designated, when operating in an area covered by a SOFA.
    (11) Supervise and provide technical assistance to subordinate ACOs 
within the command claims service's geographic area of responsibility.
    (12) Appoint FCCs.
    (b) Operations of command claims services. The SJA of the command 
shall supervise the command claims service. The command SJA may 
designate a field grade JA as the chief of the service. An adequate 
number of qualified claims personnel shall be assigned to ensure that 
claims are promptly investigated and acted upon. With the concurrence of 
the Commander USARCS, a command claims service may designate ACOs within 
its area of operations to carry out claims responsibilities within 
specified geographic areas subject to agreement by the commander 
concerned.



Sec. 536.9  Responsibilities and operations of area claims offices.

    (a) Heads of ACOs. Heads of ACOs, including COE offices (see Sec. 
536.3(e)(3)) shall:
    (1) Ensure that claims and potential claims incidents in their area 
of responsibility are promptly investigated in accordance with this 
part.
    (2) Ensure that each organization or activity (for example, U.S. 
Army Reserve (USAR) or Army National Guard of the United States (ARNGUS) 
unit, ROTC detachment, recruiting company or station, or DOD agency) 
within the area appoints a claims officer to investigate claims 
incidents not requiring investigation by a JA (see Sec. 536.23) and 
ensure that this officer is adequately trained.
    (3) Supervise the investigation, processing, and settlement of 
claims against, and in favor of, the United

[[Page 197]]

States under the statutes and regulations listed in Sec. 536.2 and 
pursuant to other appropriate statutes, regulations, and authorizations.
    (4) Act as a claims settlement authority on claims that fall within 
the appropriate monetary jurisdictions set forth in this part and 
forward claims exceeding such jurisdictions to the Commander USARCS, or 
to the chief of a command claims service, as appropriate, for action.
    (5) Designate CPOs and request that the Commander USARCS, or the 
chief of a command claims service, as appropriate, grant claims approval 
authority to a CPO for claims that fall within the jurisdiction of that 
office.
    (6) Supervise the operations of CPOs within their area.
    (7) Implement claims policies and guidance furnished by the 
Commander USARCS.
    (8) Ensure that there are adequate numbers of qualified and 
adequately trained CJAs or claims attorneys, RCJAs or attorneys, 
recovery claims clerks, claims examiners, claims adjudicators and claims 
clerks in all claims offices within their areas to act promptly on 
claims.
    (9) Budget for and fund claims investigations and activities, such 
as: per diem and transportation of claims personnel, claimants and 
witnesses; independent medical examinations; appraisals and independent 
expert opinions; long distance telephone calls; recording and 
photographic equipment; use of express mail or couriers; and other 
necessary expenses.
    (10) Within the United States and its territories, commonwealths and 
possessions, procure and disseminate, within their areas of 
jurisdiction, appropriate legal publications on state or territorial law 
and precedent relating to tort claims.
    (11) Notify the Commander USARCS, of all claims and potentially 
compensable events (PCEs) as required by Sec. 536.22(c); notify the 
chief of a command claims service of all claims and PCEs.
    (12) Develop and maintain written plans for a disaster or civil 
disturbance. These plans may be internal SJA office plans or an annex to 
an installation or an agency disaster response plan.
    (13) Implement the Army's Article 139 claims program. (See subpart I 
of this part).
    (14) Notify USARCS of possible deployments and ensure adequate FCCs 
are appointed by USARCS and are trained.
    (b) Operations of area claims offices. (1) The ACO is the principal 
office for the investigation and adjudication or settlement of claims, 
and shall be staffed with qualified legal personnel under the 
supervision of the SJA, command JA, or COE district or command legal 
counsel.
    (2) In addition to the utilization of unit claims officers required 
by Sec. 536.10(a), if indicated, the full-time responsibility for 
investigating and processing claims arising within or related to the 
activities of a unit or organization located within a section of the 
designated area may be delegated to another command, unit, or activity 
by establishing a CPO at the command, unit, or activity (see Sec. 
536.10(b)(4)). Normally, all CPOs will operate under the supervision of 
the ACO in whose area the CPO is located. Where a proposed CPO is not 
under the command of the ACO parent organization, this designation may 
be achieved by a support agreement or memorandum of understanding 
between the affected commands.
    (3) Normally, claims that cannot be settled by a COE ACO will be 
forwarded directly to the Commander USARCS, with notice of referral to 
the Chief Counsel, COE. However, as part of his or her responsibility 
for litigating suits that involve civil works and military construction 
activities, the Chief Counsel, COE, may require that a COE ACO forward 
claims through COE channels, provided that such requirement does not 
preclude the Commander USARCS from taking final action within the time 
limitations set forth in subparts D and H of this part.



Sec. 536.10  Responsibilities and operations of claims processing offices.

    (a) Heads of CPOs. Heads of CPOs will:

[[Page 198]]

    (1) Investigate all potential and actual claims arising within their 
assigned jurisdiction, on either an area, command, or agency basis. Only 
a CPO that has approval authority may adjudicate and pay presented 
claims within its monetary jurisdiction.
    (2) Ensure that units and organizations within their jurisdiction 
have appointed claims officers for the investigation of claims not 
requiring a JA's investigation. (See Sec. 536.22).
    (3) Budget for and fund claims investigations and activities; 
including, per diem and transportation of claims personnel, claimants 
and witnesses; independent medical examinations; appraisals; independent 
expert opinions; long distance telephone calls; recording and 
photographic equipment; use of express mail or couriers; and other 
necessary expenses.
    (4) Within CONUS, procure and maintain legal publications on local 
law relating to tort claims pertaining to their jurisdiction.
    (5) Notify the Commander USARCS of all claims and claims incidents, 
as required by Sec. 536.22 and AR 27-20, paragraph 2-12.
    (6) Implement the Army's Article 139 claims program (see subpart I 
of this part).
    (b) Operations of claims processing offices--(1) Claims processing 
office with approval authority. A CPO that has been granted approval 
authority must provide for the investigation of all potential and actual 
claims arising within its assigned jurisdiction, on an area, command, or 
agency basis, and for the adjudication and payment of all claims 
presented within its monetary jurisdiction. If the estimated value of a 
claim, after investigation, exceeds the CPO's payment authority, or if 
disapproval is the appropriate action, the claim file will be forwarded 
to the ACO unless otherwise specified in this part, or forwarded to 
USARCS or the command claims service, if directed by such service.
    (2) Claims processing offices without approval authority. A CPO that 
has not been granted claims approval authority will provide for the 
investigation of all potential and actual claims arising within its 
assigned jurisdiction on an area, command, or agency basis. Once the 
investigation has been completed, the claim file will be forwarded to 
the appropriate ACO for action. Alternatively, an ACO may direct the 
transfer of a claim investigation from a CPO without approval authority 
to another CPO with approval authority, located within the ACO's 
jurisdiction.
    (3) Medical claims processing offices. The MCJAs or medical claims 
attorneys at Army medical centers, other than Walter Reed Army Medical 
Center, may be designated by the SJA or head of the ACO for the 
installation on which the center is located as CPOs with approval 
authority for medical malpractice claims only. Claims for amounts 
exceeding a medical CPO's approval authority will be investigated and 
forwarded to the Commander USARCS.
    (4) Special claims processing offices-- (i) Designation and 
authority. The Commander USARCS, the chief of a command claims service, 
or the head of an ACO may designate special CPOs within his or her 
command for specific, short-term purposes (for example, maneuvers, civil 
disturbances and emergencies). These special CPOs may be delegated the 
approval authority necessary to effect the purpose of their creation, 
but in no case will this delegation exceed the maximum monetary approval 
authority set forth in other subparts of this part for regular CPOs. All 
claims will be processed under the claims expenditure allowance and 
claims command and office code of the authority that established the 
office or under a code assigned by USARCS. The existence of any special 
CPO must be reported to the Commander USARCS, and the chief of a command 
claims service, as appropriate.
    (ii) Maneuver damage and claims office jurisdiction. A special CPO 
is the proper organization to process and approve maneuver damage 
claims, except when a foreign government is responsible for adjudication 
pursuant to an international agreement (see subpart G of this part). 
Personnel from the maneuvering command should be used to investigate 
claims and, at the ACO's discretion, may be assigned to the special CPO. 
The ACO will process claims filed after the maneuver terminates. The 
special CPO will investigate claims

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arising while units are traveling to or from the maneuver within the 
jurisdiction of other ACOs, and forward such claims for action to the 
ACO in whose area the claims arose. Claims for damage to real or 
personal property arising on private land that the Army has used under a 
permit may be paid from funds specifically budgeted by the maneuver for 
such purposes in accordance with AR 405-15.
    (iii) Disaster claims and civil disturbance. A special CPO provided 
for a disaster or civil disturbance should include a claims approving 
authority with adequate investigatory, administrative, and logistical 
support, including damage assessment and finance and accounting support. 
It will not be dispatched prior to notification of the Commander USARCS, 
whose concurrence must be obtained before the first claim is paid.
    (5) Supervisory requirements. The CPOs discussed in paragraphs 
(b)(2) through (b)(4) of this section must be supervised by an assigned 
CJA or claims attorney in order to exercise delegated approval 
authority.



Sec. 536.11  Chief of Engineers.

    The Chief of Engineers, through the Chief Counsel, shall:
    (a) Provide general supervision of the claims activities of COE 
ACOs.
    (b) Ensure that each COE ACO has a claims attorney designated in 
accordance with Sec. 536.4.
    (c) Ensure that claims personnel are adequately trained, and monitor 
their ongoing claims administration.
    (d) Implement pertinent claims policies.
    (e) Provide for sufficient funding in accordance with existing Army 
regulations and command directives for temporary duty (TDY), long 
distance telephone calls, recording equipment, cameras, and other 
expenses for investigating and processing claims.
    (f) Procure and maintain adequate legal publications on local law 
relating to claims arising within the United States, its territories, 
commonwealths and possessions.
    (g) Assist USARCS in evaluation of claims by furnishing qualified 
expert and technical advice from COE resources, on a non-reimbursable 
basis except for temporary duty (TDY) and specialized lab services 
expenses.



Sec. 536.12  Commanding General, U.S. Army Medical Command.

    (a) After consulting with the Commander USARCS on the selection of 
medical claims attorneys, the Commander of the U.S. Army MEDCOM, the 
European Medical Command, or other regional medical command, through his 
or her SJA/Center Judge Advocate, shall ensure that an adequate number 
of qualified MCJAs or medical claims attorneys and medical claims 
investigators are assigned to investigate and process medical 
malpractice claims arising at Army medical centers under the Commander's 
control. In accordance with an agreement between TJAG and The Surgeon 
General, such personnel shall be used primarily to investigate and 
process medical malpractice claims and affirmative claims and will be 
provided with the necessary funding and research materials to carry out 
this function.
    (b) Upon request of a claims judge advocate or claims officer, shall 
provide a qualified health care provider at a medical treatment facility 
(MTF) to examine a claimant for his injuries even if the claimant is not 
otherwise entitled to care at an MTF (See AR 40-400, Patient 
Administration, paragraph 3-47).



Sec. 536.13  Chief, National Guard Bureau.

    The Chief, National Guard Bureau (NGB), shall:
    (a) Ensure the designation of a point of contact for claims matters 
in each State Adjutant General's office.
    (b) Provide the name, address, and telephone number of these points 
of contact to the Commander USARCS.
    (c) Designate claims officers to investigate claims generated by 
ARNG personnel and forward investigations to the Active Army ACO that 
has jurisdiction over the area in which the claims incident occurred.



Sec. 536.14  Commanders of major Army commands.

    Commanders of MACOMs, through their SJAs, shall:
    (a) Assist USARCS in monitoring ACOs and CPOs under their respective

[[Page 200]]

commands for compliance with the responsibilities assigned in Sec. Sec. 
536.9 and 536.10.
    (b) Assist claims personnel in obtaining qualified expert and 
technical advice from command units and organizations on a 
nonreimbursable basis (although the requesting office may be required to 
provide TDY funding).
    (c) Assist TJAG, through the Commander USARCS, in implementing the 
functions set forth in Sec. 536.7.
    (d) Coordinate with the ACO within whose jurisdiction a maneuver is 
scheduled, to ensure the prompt investigation and settlement of any 
claims arising from it.



Sec. 536.15  Claims policies.

    (a) General. The following policies will be adhered to in processing 
and adjudicating claims falling within this regulation. The Commander 
USARCS is authorized to publish new policies or rescind existing 
policies from time to time as the need arises.
    (1) Notification. The Commander USARCS must be notified as soon as 
possible of both potential and actual claims which are serious incidents 
that cannot be settled within the monetary jurisdiction of a Command 
Claims Service or an ACO, including those which occur in the area of 
responsibility of a CPO. On such claims, the USARCS Area Action Officer 
(AAO) must coordinate with the field office as to all aspects of the 
investigation, evaluation and determination of liability. An offer of 
settlement or the assertion of an affirmative claim must be the result 
of a discussion between the AAO and the field office. Payment of a 
subrogated claim may commit the United States to liability as to larger 
claims. On the other hand, where all claims out of an incident can be 
paid within field authority they should be paid promptly with maximum 
use of small claims procedures.
    (2) Consideration under all subparts. Prior to denial, a claim will 
be considered under all subparts of this part, regardless of the form on 
which the claim is presented. A claim presented as a personnel claim 
will be considered as a tort prior to denial. A claim presented as a 
tort will first be considered as a personnel claim, and if not payable, 
then considered as a tort. If deniable, the claim will be denied both as 
a personnel claim and as a tort.
    (3) Compromise. DA policy seeks to compromise claims in a manner 
that represents a fair and equitable result to both the claimant and the 
United States. This policy does not extend to frivolous claims or claims 
lacking factual or legal merit. A claim should not be settled solely to 
avoid further processing time and expense. All claims, regardless of 
amount, should be evaluated. Congress imposed no minimum limit on 
payable claims nor did it intend that small non-meritous claims be paid. 
Practically any claim, regardless of amount, may be subject to 
compromise through direct negotiation. A CJA or claims attorney should 
develop expertise in assessing liability and damages, including small 
property damage claims. For example, a property damage claim may be 
compromised by deducting the cost of collection, i.e., attorney fees and 
costs, even where liability is certain.
    (4) Expeditious processing at the lowest level. Claims investigation 
and adjudication should be accomplished at the lowest possible level, 
such as the CPO or ACO that has monetary authority over the estimated 
total value of all claims arising from the incident. The expeditious 
investigation and settlement of claims is essential to successfully 
fulfilling the Army's responsibilities under the claims statutes 
implemented by this part.
    (5) Notice to claimants of technical errors in claim. When technical 
errors are found in a claim's filing or contents, claimants should be 
advised of such errors and the need to correct the claim. If the errors 
concern a jurisdictional matter, a record should be maintained and the 
claimant should be immediately warned that the error must be corrected 
before the statute of limitations (SOL) expires.
    (b) Cooperative investigative environment. Any person who indicates 
a desire to file a claim against the United States cognizable under one 
of the subparts of this part will be instructed concerning the procedure 
to follow. The claimant will be furnished claim forms and, when 
necessary, assisted in completing claim forms, and may be

[[Page 201]]

assisted in assembling evidence. Claims personnel may not assist any 
claimant in determining what amount to claim. During claims 
investigation, every effort should be made to create a cooperative 
environment that engenders the free exchange of information and 
evidence. The goal of obtaining sufficient information to make an 
objective and fair analysis should be paramount. Personal contact with 
claimants or their representatives is essential both during 
investigation and before adjudication. When settlement is not feasible, 
issues in dispute should be clearly identified to facilitate resolution 
of any reconsideration, appeal or litigation.
    (c) Claims directives and plans--(1) Directives. Two copies of 
command claims directives will be furnished to the Commander USARCS. ACO 
directives will be distributed to all DA and DOD commands, installations 
and activities within the ACO's area of responsibility, with an 
information copy to the Commander USARCS.
    (2) Disaster and civil preparedness plan. One copy of all ACOs' 
disaster or civil disturbance plans or annexes will be furnished to the 
Commander USARCS.
    (d) Interpretations. The Commander USARCS will publish written 
interpretations of this part. Interpretations will have the same force 
and effect as this part.
    (e) Authority to grant exceptions to and deviations from this part. 
If, in particular instances, it is considered to be in the best 
interests of the government, the Commander USARCS may authorize 
deviations from this part's specific requirements, except as to matters 
based on statutes, treaties and international agreements, executive 
orders, controlling directives of the Attorney General or Comptroller 
General, or other publications that have the force and effect of law.
    (f) Guidance. The Commander USARCS, may publish bulletins, manuals, 
handbooks and notes, and a DA Pamphlet that provides guidance to claims 
authorities on administrative and procedural rules implementing this 
part. These will be binding on all Army claims personnel.
    (g) Communication. All claims personnel are authorized to 
communicate directly with USARCS personnel for guidance on matters of 
policy or on matters relating to the implementation of this part.
    (h) Private relief bills. The issue of a private relief bill is one 
between a claimant and his or her Congressional representative. There is 
no established procedure under which the DA sponsors private relief 
legislation. Claims personnel shall remain neutral in all private relief 
matters and shall not make any statement that purports to reflect the 
DA's position on a private relief bill.



Sec. 536.16  Release of information policies.

    (a) Conflict of interest. Except as part of their official duties, 
government personnel are forbidden from advising or representing 
claimants or from receiving 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 and 205).
    (b) Release of information. (1) Relevant statutes pertinent to the 
release of information include the Privacy Act of 1974, 5 U.S.C. 552a 
and 552b, the Freedom of Information Act (FOIA), 5 U.S.C. 552 and the 
Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. 
1320d through 1320d-8.
    (2) It is the policy of USARCS that unclassified attorney work 
product may be released with or without a request from the claimant or 
attorney, whenever such release may help settle the claim or avoid 
unnecessary litigation.
    (3) A statutory exemption or privilege may not be waived. Similarly, 
documents subject to such statutorily required nondisclosure, exemption, 
or privilege may not be released. Regarding other exemptions and 
privileges, authorities may waive such exemptions or privileges and 
direct release of the protected documents, upon balancing all pertinent 
factors, including finding that release of protected records will not 
harm the government's interest, will promote settlement of a claim and 
will avoid unnecessary litigation, or for other good cause.

[[Page 202]]

    (4) All requests for records and information made pursuant to the 
FOIA, 5 U.S.C. 552, the Privacy Act of 1974, 5 U.S.C. 552a, or HIPAA, 42 
U.S.C. 1320d, will be processed in accordance with the procedures set 
forth in AR 25-55 and AR 340-21, respectively as well as 45 CFR Parts 
160 and 164, DODD 6025.18-R, this part, and DA Pam 27-162.
    (i) Any request for DOD records that either explicitly or implicitly 
cites the FOIA shall be processed under the provisions of AR 25-55. 
Requests for DOD records submitted by a claimant or claimant's attorney 
will be processed under both the FOIA and under the Privacy Act when the 
request is made by the subject of the records requested and those 
records are maintained in a system of records. Such requests will be 
processed under the FOIA time limits and the Privacy Act fee provisions. 
Withheld information must be exempt from disclosure under both Acts.
    (ii) Requests that cite both Acts or neither Act are processed under 
both Acts, using the FOIA time limits and the Privacy Act fee 
provisions. For further guidance, see AR 25-55, paragraphs 1-301 and 1-
503.
    (5) The following records may not be disclosed:
    (i) Medical quality assurance records exempt from disclosure 
pursuant to 10 U.S.C. 1102(a).
    (ii) Records exempt from disclosure pursuant to appropriate 
balancing tests under FOIA exemption (6) (clearly unwarranted invasion 
of personal privacy), exemption (7)(c) (reasonably constitutes 
unwarranted invasion of privacy), and law enforcement records (5 U.S.C. 
Sec. 552(b)) unless requested by the subject of the record.
    (iii) Records protected by the Privacy Act.
    (iv) Records exempt from disclosure pursuant to FOIA exemption (1) 
(National security) (5 U.S.C. 552(b)), unless such records have been 
properly declassified.
    (v) Records exempt from disclosure pursuant to the attorney-client 
privilege under FOIA exemption (5) (5 U.S.C. 552(b)), unless the client 
consents to the disclosure.
    (6) Records within a category for which withholding of the record is 
discretionary (AR 25-55, paragraph 3-101), such as exemptions under the 
deliberative process or attorney work product privileges (exemption (5) 
(5 U.S.C. 552(b)) may be released when there is no foreseeable harm to 
government interests in the judgment of the releasing authority.
    (7) When it is determined that exempt information should not be 
released, or a question as to its releaseability exists, forward the 
request and two copies of the responsive documents to the Commander 
USARCS. The Commander USARCS, acting on behalf of TJAG (the initial 
denial authority), may deny release of records processed under the FOIA 
only. The Commander USARCS, will forward to TJAG all such requests 
processed under both the FOIA and PA. TJAG is the denial authority for 
Privacy Act requests (AR 340-21, paragraph 1-7i).
    (c) Claims assistance. In the vicinity of a field exercise, maneuver 
or disaster, claims personnel may disseminate information on the right 
to present claims, procedures to be followed, and the names and location 
of claims officers and the COE repair teams. When the government of a 
foreign country in which 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 as much pertinent 
information and evidence as security considerations permit.



Sec. 536.17  Single-service claims responsibility (DODD 5515.8 and DODD 5515.9).

    (a) Assignment for DOD claims. The army is responsible for 
processing DOD claims pursuant to DODD 5515.9 (posted on the USARCS Web 
site; for the address see Sec. 536.2(a)).
    (b) Statutes and agreements. DOD has assigned single-service 
responsibility for the settlement of certain claims in certain 
countries, pursuant to DODD 5515.8 (posted on the USARCS Web site; for 
the address see Sec. 536.2(a)) under the following statutes and 
agreements:
    (1) FCA (10 U.S.C. 2734);
    (2) MCA (10 U.S.C. 2733);
    (3) Status of Forces Agreements (10 U.S.C. 2734a and 2734b);
    (4) NATO SOFA (4 U.S.T. 1792, Treaties and International Acts Series

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(T.I.A.S.) 2846) and other similar agreements;
    (5) FCCA (31 U.S.C. 3711-3720E) and FMCRCA (42 U.S.C. 2651-2653);
    (6) Claims not cognizable under any other provision of law, 10 
U.S.C. 2737; and
    (7) Advance payments, 10 U.S.C. 2736.
    (c) Specified foreign countries. Responsibility for the settlement 
of claims cognizable under the laws listed above has been assigned to 
military departments pursuant to DODD 5515.8, as supplemented by 
executive agreement and other competent directives.
    (d) When claims responsibility has not been assigned. When necessary 
to implement contingency plans, the unified or specified commander with 
authority over the geographic area in question may, on an interim basis 
before receiving confirmation and approval from the General Counsel, 
DOD, assign single-service responsibility for processing claims in 
countries where such assignment has not already been made.
    Note to Sec. 536.17: See also Sec. 536.32 for information on 
transferring claims among armed services branches.



Sec. 536.18  Cross-servicing of claims.

    (a) Where claims responsibility has not been assigned. Claims 
cognizable under the FCA or the MCA that are generated by another 
military department within a foreign country for which single-service 
claims responsibility has not been assigned, may be settled by the Army 
upon request of the military department concerned. Conversely, Army 
claims may in appropriate cases be referred to another military 
department for settlement, DODD 5515.8, E1.2 (posted on the USARCS Web 
site; for the address see Sec. 536.2(a)). Tables listing claims offices 
worldwide are posted to the USARCS Web site at that address. U.S. Air 
Force claims offices may be identified by visiting the Web site at 
http://afmove.hq.af.mil/page--afclaims.asp.
    (b) Claims generated by the Coast Guard. Claims resulting from the 
activities of, or generated by, soldiers or civilian employees of the 
Coast Guard while it is operating as a service of the U.S. Department of 
Homeland Security may upon request be settled under this part by a 
foreign claims commission appointed as authorized herein, but they will 
be paid from Coast Guard appropriations, 10 U.S.C. 2734.
    (c) SOFA claims within the United States. Claims cognizable under 
the NATO PFP or Singaporean SOFAs arising out of the activities of 
aircraft within the United States may be investigated and adjudicated by 
the U.S. Air Force under a delegation from the Commander USARCS. Claims 
exceeding the delegated amount will be adjudicated by the USARCS.
    (d) Claims generated by the American Battle Monuments Commission. 
Claims arising out of the activities of or in cemeteries outside the 
United States managed by the American Battle Monuments Commission (36 
U.S.C. 2110) will be investigated and adjudicated by the U.S. Army.
    Note to Sec. 536.18: See also Sec. 536.32 for information on 
transferring claims among armed services branches.



Sec. 536.19  Disaster claims planning.

    All ACOs will prepare a disaster claims plan and furnish a copy to 
USARCS. See DA Pam 27-162, paragraph 1-21 for specific requirements 
related to disaster claims planning.



Sec. 536.20  Claims assistance visits.

    Members of USARCS and command claims services will make claims 
assistance visits to field offices on a periodic basis. See DA Pam 27-
162, paragraph 1-22 for specific requirements related to claims 
assistance visits.



Sec. 536.21  Annual claims award.

    The Commander USARCS will make an annual claims award to outstanding 
field offices. See DA Pam 27-162, para 1-23 for more information on 
annual claims awards.



            Subpart B_Investigation and Processing of Claims



Sec. 536.22  Claims investigative responsibility--General.

    (a) Scope. This subpart addresses the investigation, processing, 
evaluation, and settlement of tort and tort-related claims for and 
against the United States. The provisions of this subpart do not apply 
to personnel claims (AR 27-20, chapter 11), or to claims under

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subpart G of this part, Sec. Sec. 536.114 through 536.116.
    (b) Cooperation. Claims investigation requires team effort between 
the U.S. Army Claims Service (USARCS), command claims services, and area 
claims offices (ACOs) including U.S. Army Corps of Engineers (COE) 
District Offices, claims processing offices (CPOs), and unit claims 
officers. Essential to this effort is the immediate investigation of 
claims incidents. Prompt investigation depends on the timely reporting 
of claims incidents as well as continuous communication between all 
commands or echelons bearing claims responsibility.
    (c) Notification to USARCS. A CPO or an ACO receiving notice of a 
potentially compensable event (PCE) that requires investigation will 
immediately refer it to the appropriate claims office. The Commander 
USARCS will be notified of all major incidents involving serious injury 
or death or those in which property damage exceeds $50,000. A command 
claims service may delegate to an ACO the responsibility for advising 
USARCS of serious incidents and complying with mirror file requirements. 
A copy of the written delegation and any changes made thereafter will be 
forwarded to the Commander USARCS.
    (d) Geographic concept of responsibility. A command claims service 
or an ACO in whose geographic area a claims incident occurs is primarily 
responsible for initiating investigation and processing of any claim 
filed in the absence of a formal transfer of responsibility (see 
Sec. Sec. 536.30 through 536.36). DOD and Army organizations whose 
personnel are involved in the incident will cooperate with and assist 
the ACO, regardless of where the former may be located.
    Note to Sec. 536.22: See the parallel discussion at DA Pam 27-162, 
paragraph 2-1.



Sec. 536.23  Identifying claims incidents both for and against the government.

    (a) Investigation is required when:
    (1) There is property loss or damage.
    (i) Property other than that belonging to the government is damaged, 
lost, or destroyed by an act or omission of a government employee or a 
member of North Atlantic Treaty Association (NATO), Australian or 
Singaporean forces stationed or on temporary duty within the United 
States.
    (ii) Property belonging to the government is damaged or lost by a 
tortious act or omission not covered by the report of survey system or 
by a carrier's bill of lading.
    (2) There is personal injury or death.
    (i) A civilian other than an employee of the U.S. government is 
injured or killed by an act or omission of a government employee or by a 
member of a NATO, Australian or Singaporean force stationed or on 
temporary duty within the United States. (This category includes 
patients injured during treatment by a health care provider).
    (ii) Service members, active or retired, family members of either, 
or U.S. employees, are injured or killed by a third party and receive 
medical care at government expense.
    (3) A claim is filed.
    (4) A competent authority or another armed service or federal agency 
requires investigation.
    (b) Determining who is a government employee is a matter of federal, 
not local, law. Categories of government employees usually accepted as 
tortfeasors under federal law are:
    (1) Military personnel (soldiers of the Army, or members of other 
services where the Army exercises single-service jurisdiction on foreign 
soil; and soldiers or employees within the United States who are members 
of NATO or of other foreign military forces with whom the United States 
has a reciprocal claims agreement and whose sending States have 
certified that they were acting within the scope of their duty) who are 
serving on full-time active duty in a pay status, including soldiers:
    (i) Assigned to units performing active or inactive duty.
    (ii) Serving on active duty as Reserve Officer Training Corps (ROTC) 
instructors.
    (iii) Serving as Army National Guard (ARNG) instructors or advisors.
    (iv) On duty or training with other federal agencies, for example: 
the National Aeronautics and Space Administration, the Department of 
State, the Navy, the Air Force, or DOD (federal agencies other than the 
armed service

[[Page 205]]

to which the Soldier is attached may also provide a remedy).
    (v) Assigned as students or ordered into training at a non-federal 
civilian educational institution, hospital, factory, or other facility 
(excluding soldiers on excess leave or those for whom the training 
institution or organization has assumed liability by written agreement).
    (vi) Serving on full-time duty at nonappropriated fund (NAF) 
activities.
    (vii) Of the United States Army Reserve (USAR) and ARNG on active 
duty under Title 10, U.S.C.
    (2) Military personnel who are United States Army Reserve soldiers 
including ROTC cadets who are Army Reserve soldiers while at annual 
training, during periods of active duty and inactive duty training.
    (3) Military personnel who are soldiers of the ARNG while engaged in 
training or duty under 32 U.S.C. 316, 502, 503, 504, 505, or engaged in 
properly authorized community action projects under the Federal Tort 
Claims Act (FTCA), the Non-Scope Claims Act (NSCA), or the National 
Guard Claims Act (NGCA), unless performing duties in furtherance of a 
mission for a state, commonwealth, territory or possession.
    (4) Civilian officials and employees of both the DOD and DA (there 
is no practical significance to the distinction between the terms 
``official'' and ``employee''), including but not limited to the 
following:
    (i) Civil service and other full-time employees of both the DOD and 
DA who are paid from appropriated funds.
    (ii) Persons providing direct health care services pursuant to 
personal service contracts under 10 U.S.C. 1089 or 1091 or where another 
person exercised control over the health care provider's day-to-day 
practice. When the conduct of a health care provider performing services 
under a personal service contract is implicated in a claim, the CJA, 
Medical Claims Judge Advocate (MCJA), or claims attorney should consult 
with USARCS to determine if that health care provider can be considered 
an employee for purposes of coverage.
    (iii) Employees of a NAF instrumentality (NAFI) if it is an 
instrumentality of the United States and thus a federal agency. To 
determine whether a NAFI is a ``federal agency,'' consider both whether 
it is an integral part of the Army charged with an essential DA 
operational function and also what degree of control and supervision DA 
personnel exercise over it. Members or users, unlike employees of NAFIs, 
are not considered government employees; the same is true of family 
child care providers. However, claims arising out of the use of some 
NAFI property or from the acts or omissions of family child care 
providers may be payable from such funds under subpart K of this part as 
a matter of policy, even when the user is not acting within the scope of 
employment and the claim is not otherwise cognizable under any of the 
other authorities described in this part.
    (5) Prisoners of war and interned enemy aliens.
    (6) Civilian employees of the District of Columbia ARNG, including 
those paid under ``service contracts'' from District of Columbia funds.
    (7) Civilians serving as ROTC instructors paid from federal funds.
    (8) ARNG technicians employed under 32 U.S.C. 709(a) for claims 
accruing on or after January 1, 1969 (Public Law 90-486, August 13, 1968 
(82 Stat. 755)), unless performing duties solely in pursuit of a mission 
for a state, commonwealth, territory or possession.
    (9) Persons acting in an official capacity for the DOD or DA either 
temporarily or permanently with or without compensation, including but 
not limited to the following:
    (i) Dollar-a-year personnel.
    (ii) Members of advisory committees, commissions, or boards.
    (iii) Volunteers serving in an official capacity in furtherance of 
the business of the United States, limited to those categories set forth 
in DA Pam 27-162, paragraph 2-45.
    Note to Sec. 536.23: See the parallel discussion at DA Pam 27-162, 
paragraph 2-2.



Sec. 536.24  Delegation of investigative responsibility.

    (a) Area Claims Office. An ACO is authorized to carry out its 
investigative responsibility as follows:
    (1) At the request of the area claims authority, commanders and 
heads of

[[Page 206]]

Army and DOD units, activities, or components will appoint a 
commissioned, warrant, or noncommissioned officer or a qualified 
civilian employee to investigate a claims incident in the manner set 
forth in DA Pam 27-162 and this part. An ACO will direct such 
investigation to the extent deemed necessary.
    (2) CPOs are responsible for investigating claims incidents arising 
out of the activities and operations of their command or agency. An ACO 
may assign area jurisdiction to a CPO after coordination with the 
appropriate commander to investigate claims incidents arising in the 
ACO's designated geographic area. (See Sec. 536.3(f).)
    (3) Claims incidents involving patients arising from treatment by a 
health care provider in an Army medical treatment facility (MTF), 
including providers defined in 536.23(b)(4)(ii), will be investigated by 
a claims judge advocate (CJA), medical claims judge advocate (MCJA), or 
claims attorney rather than by a unit claims officer.
    (4) An ACO will publish and distribute a claims directive to all DOD 
and Army installations and activities including active, Army Reserve, 
and ARNG units as well as units located on the post at which the ACO is 
located. The directive will outline each installations' and activities' 
claims responsibilities. It will institute a serious claims incident 
reporting system.
    (b) Command claims service responsibility. A command claims service 
is responsible for the investigation and processing of claims incidents 
arising in its geographic area of responsibility or for any incidents 
within the authority of any foreign claims commission (FCC) it appoints. 
This responsibility will be carried out by an ACO or a CPO to the extent 
possible. A command claims service will publish a claims directive 
outlining the geographic areas of claims investigative responsibilities 
of each of its installations and activities, requiring each ACO or CPO 
to report all serious claims incidents directly to the Commander USARCS.
    (c) USARCS responsibility. USARCS exercises technical supervision 
over all claims offices, providing guidance on specific cases throughout 
the claims process, including the method of investigation. Where 
indicated, USARCS may investigate a claims incident that normally falls 
within a command claims services', an ACO's, or a CPO's jurisdiction. 
USARCS typically acts through an area action officer (AAO) who is 
assigned as the primary point of contact with command claims services, 
ACOs or CPOs within a given geographic area. In areas outside the United 
States and its commonwealths, territories and possessions, where there 
is no command claims service or ACO, USARCS is responsible for 
investigation and for appointment of FCCs.

    Note to Sec. 536.24: See the parallel discussion at DA Pam 27-162, 
paragraph 2-3.



Sec. 536.25  Procedures for accepting claims.

    All ACOs and CPOs will institute procedures to ensure that potential 
claimants or attorneys speak to a CJA, claims attorney, investigator, or 
examiner. On initial contact, claims personnel will render assistance, 
discuss all aspects of the potential claim, and determine what statutes 
or procedures apply. Assistance will be furnished to the extent set 
forth in DA Pam 27-162, paragraph 2-4. To advise claimants on the 
correct remedy, claims personnel will familiarize themselves with the 
remedies listed in DA Pam 27-162, paragraphs 2-15 and 2-17.



Sec. 536.26  Identification of a proper claim.

    (a) A claim is a writing that contains a sum certain for each 
claimant and that is signed by each claimant, or by an authorized 
representative, who must furnish written authority to sign on a 
claimant's behalf. The writing must contain enough information to permit 
investigation. The writing must be received not later than two years 
from the date the claim accrues. A claim under the Foreign Claims Act 
(FCA) may be presented orally to either the United States or the 
government of the foreign country in which the incident occurred, within 
two years, provided that it is reduced to writing not later than three 
years from the date of accrual. A claim may be transmitted by facsimile 
or telegram. However, a copy of an original claim must be submitted as 
soon as possible.

[[Page 207]]

    (b) Where a claim is only for property damage and it is filed under 
circumstances where there might be injuries, the CJA should inquire if 
the claimant desires to split the claim as discussed in Sec. 536.60.
    (c) Normally, a claim will be presented on a Standard Form (SF) 95 
(Claim for Damage, Injury, or Death). When the claim is not presented on 
an SF 95, the claimant will be requested to complete an SF 95 to ease 
investigation and processing.
    (d) If a claim names two claimants and states only one sum certain, 
the claimants will be requested to furnish a sum certain for each. A 
separate sum certain must be obtained prior to payment under the Federal 
Tort Claims Act (FTCA), Military Claims Act (MCA), National Guard Claims 
Act (NGCA) or the FCA. The Financial Management Service will only pay an 
amount above the threshold amount of $2,500 for the FTCA, or $100,000 
for the other statutes.
    (e) A properly filed claim meeting the definition of ``claim'' in 
paragraph (a) of this section tolls the two-year statute of limitations 
(SOL) even though the documents required to substantiate the claim are 
not present, such as those listed on the back of an SF 95 or in the 
Attorney General's regulations implementing the FTCA, 28 CFR 14.1--
14.11. However, refusal to provide such documents may lead to dismissal 
of a subsequent suit under the FTCA or denial of a claim under other 
subparts of this part.
    (f) Receipt of a claim by another federal agency does not toll the 
SOL. Receipt of a U.S. Army claim by DOD, Navy, or Air Force does toll 
the SOL.
    (g) The guidelines set forth in federal FTCA case law will apply to 
other subparts of this part in determining whether a proper claim was 
filed.
     Note to Sec. 536.26: See the parallel discussion at DA Pam 27-162, 
paragraph 2-5.



Sec. 536.27  Identification of a proper claimant.

    The following are proper claimants:
    (a) Claims for property loss or damage. A claim may be presented by 
the owner of the property or by a duly authorized agent or legal 
representative in the owner's name. As used in this part, the term 
``owner'' includes the following:
    (1) For real property. The mortgagor, mortgagee, executor, 
administrator, or personal representative, if he or she may maintain a 
cause of action in the local courts involving a tort to the specific 
property, is a proper claimant. When notice of divided interests in real 
property is received, the claim should if feasible be treated as a 
single claim and a release from all interests must be obtained. This 
includes both the owner and tenant where both claim.
    (2) For personal property. A claim may be presented by a bailee, 
lessee, mortgagee, conditional vendor, or others holding title for 
purposes of security only, unless specifically prohibited by the 
applicable subpart. When notice of divided interests in personal 
property is received, the claim should if feasible be treated as a 
single claim; a release from all interests must be obtained. Property 
loss is defined as loss of actual tangible property, not consequential 
damage resulting from such loss.
    (b) Claims for personal injury or wrongful death--(1) For personal 
injury. A claim may be presented by the injured person or by a duly 
authorized agent or legal representative or, where the claimant is a 
minor, by a parent or a person in loco parentis. However, determine 
whether the claimant is a proper claimant under applicable state law or, 
if considered under the MCA, under Sec. 536.77. If not, the claimant 
should be so informed in the acknowledgment letter and requested to 
withdraw the claim. If not withdrawn, deny the claim without delay. An 
example is a claim filed on behalf of a minor for loss of consortium for 
injury to a parent where not permitted by state law. Personal injury 
claims deriving from the principal injury may be presented by other 
parties. A claim may not be presented by a ``volunteer,'' meaning one 
who has no legal or contractual obligation, yet voluntarily pays damages 
on behalf of an injured party and then seeks reimbursement for their 
economic damages by filing a claim. See paragraph (f) (3) of this 
section.
    (2) For wrongful death. A claim may be presented by the executor or 
administrator of the deceased's estate, or by any person determined to 
be legally or

[[Page 208]]

beneficially entitled under applicable local law. The amount allowed 
will be apportioned, to the extent practicable, among the beneficiaries 
in accordance with the law applicable to the incident. Under the MCA 
(subpart C of this part), only one wrongful death claim is authorized 
(see Sec. 536.77(c)(1)(i)). Under subparts D and H of this part, a 
claim by the insured for property damage may be considered as a claim by 
the insurer as the real party in interest provided the insured has been 
reimbursed by the insurer and the insurance information is listed on the 
SF 95. The insurer should be required to file a separate SF 95 for 
payment purposes even though the SOL has expired. Where the insurance 
information is not listed on the SF 95 and the insured is paid by the 
United States, the payment of the insurer is the responsibility of the 
insured even though the insurer subsequently files a timely claim. To 
avoid this situation, always inquire as to the status of any insurance 
prior to payment of a property damage claim.
    (c) By an agent or legal representative. A claimant's agent or legal 
representative who presents a claim will do so in the claimant's name 
and sign the form in such a way that indicates the agent's or legal 
representative's title or capacity. When a claim is presented by an 
agent or legal representative:
    (1) It must contain written evidence of the agent's or legal 
representative's authority to sign, such as a power of attorney, or
    (2) It must refer to or cite the statute granting authority.
    (d) Subrogation. A claim may be presented by the subrogee in his or 
her own name if authorized by the law of the place where the incident 
giving rise to the claim occurred, under subpart D or H of this part 
only. A lienholder is not a proper claimant and should be distinguished 
from a subrogee to avoid violation of the Antiassignment Act. See 
paragraph (f) of this section. However, liens arising under Medicare 
will be processed directly with the Center for Medicare and Medicaid 
Systems. See DA Pam 27-162, paragraphs 2-57g and h and 2-58.
    (e) Contribution or indemnity. A claim may be filed for contribution 
or indemnification by the party who was held liable as a joint 
tortfeasor where authorized by state law. Such a claim is not perfected 
until payment has been made by the claimant/joint tortfeasor. A claim 
filed for contribution prior to payment being made should be considered 
as an opportunity to share a settlement where the United States is 
liable.
    (f) Transfer or assignment. (1) Under the Antiassignment Act (31 
U.S.C. 3727) and Defense Finance and Accounting Service--Indianpolis 
(DFAS-IN) regulation 37-1, a transfer or assignment is null and void 
except where it occurs by operation of law or after a voucher for the 
payment has been issued. The following are null and void:
    (i) Every purported transfer or assignment of a claim against the 
United States, or any interest, in whole or in part, on a claim, whether 
absolute or conditional; and
    (ii) Every power of attorney or other purported authority to receive 
payment for all or part of any such claim.
    (2) The Antiassignment Act was enacted 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 that arise under a statute are not barred by 
the Antiassignment Act. For example, subrogated workers' compensation 
claims are cognizable when presented by the insurer under subpart D or H 
of this part, but not other subparts.
    (4) Subrogated claims that arise pursuant to contractual provisions 
may be paid to the subrogee, if the legal basis for the subrogated claim 
is recognized by state statute or case law, only under subpart D or H of 
this part. For example, an insurer that issues an insurance

[[Page 209]]

policy becomes subrogated to the rights of a claimant who receives 
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 a federal or state statute 
or a subrogation contract held valid by state law.
    (g) Interdepartmental waiver rule. Neither the U.S. government nor 
any of its instrumentalities are proper claimants due to the 
interdepartmental waiver rule. This rule bars claims by any organization 
or activity of the Army, whether or not the organization or activity is 
funded with appropriated or nonappropriated funds. Certain federal 
agencies are authorized by statute to file claims, for example, Medicare 
and the Railroad Retirement Commission. See DA Pam 27-162, paragraph 2-
17f.
    (h) States are excluded. If a state, U.S. commonwealth, territory, 
or the District of Columbia maintains a unit to which ARNG personnel 
causing the injury or damage are assigned, such governmental entity is 
not a proper claimant for loss or damage to its property. A unit of 
local government other than a state, commonwealth, or territory is a 
proper claimant.
     Note to Sec. 536.27: See the parallel discussion at DA Pam 27-162, 
paragraph 2-6.



Sec. 536.28  Claims acknowledgment.

    Claims personnel will acknowledge all claims immediately upon 
receipt, in writing, by telephone, or in person. A defective claim will 
be acknowledged in writing, pointing out its defects. Where the defects 
render the submission jurisdictionally deficient based on the 
requirements discussed in DA Pam 27-162, paragraphs 2-5 and 2-6, the 
claimant or attorney will be informed in writing of the need to present 
a proper claim no later than two years from the date of accrual. Suit 
must be filed in maritime claims not later than two years from the date 
of accrual. See Sec. 536.122. In any claim for personal injury or 
wrongful death, an authorization signed by the patient, natural or legal 
guardian or estate representative will be obtained authorizing the use 
of medical information, including medical records, in order to use 
sources other than claims personnel to evaluate the claim as required by 
the Health Care Portability and Accountability Act (HIPAA), 42 U.S.C. 
1320d-1320d-8. See the parallel discussion at DA Pam 27-162, paragraph 
2-7.



Sec. 536.29  Revision of filed claims.

    (a) General. A revision or change of a previously filed claim may 
constitute an amendment or a new claim. Upon receipt, the CJA must 
determine whether a new claim has been filed. If so, the claim must be 
logged with a new number and acknowledged in accordance with Sec. 
536.27.
    (b) New claim. A new claim is filed whenever the writing alleges a 
new theory of liability, a new tortfeasor, a new party claimant, a 
different date or location for the claims incident, or other basic 
element that constitutes an allegation of a different tort not 
originally alleged. If the allegation is made verbally or by e-mail, the 
claimant will be informed in writing that a new SF 95 must be filed. A 
new claim must be filed not later than two years from the accrual date 
under the FTCA. Filing a new claim creates an additional six month 
period during which suit may not be filed.
    (c) Amendment. An increase or decrease in the amount claimed 
constitutes an amendment, not a new claim. Similarly, the addition of 
required information not on the original claim constitutes an amendment. 
Examples are date of birth, marital status, military status, names of 
witnesses, claimant's address, description, or location of property or 
insurance information. An amendment may be filed before or after the two 
year SOL has run unless final action has been taken. A new number will 
not be assigned to an amended claim; however, a change in the amount 
will be annotated in the database.
     Note to Sec. 536.29: See the parallel discussion at DA Pam 27-162, 
paragraph 2-8.



Sec. 536.30  Action upon receipt of claim.

    (a) A properly filed claim stops the running of the SOL when it is 
received by any organization or activity of the

[[Page 210]]

DOD or the U.S. Armed Services. Placing a claim in the mail does not 
constitute filing. The first Army claims office that receives the claim 
will date, time stamp, and initial the claim as of the date the claim 
was initially received ``on post,'' not by the claims office. If 
initially received close to the SOL's expiration date by an organization 
or activity that does not have a claims office, claims personnel will 
discover and record in the file the date of original receipt.
    (b) The ACO or CPO that first receives the claim will enter the 
claim into the Tort and Special Claims Application (TSCA) database and 
let the system assign a number to the claim. The claim, whether on an SF 
95 or in any other format, shall be scanned into a computer and uploaded 
onto the TSCA database so that it will become a permanent part of the 
electronic record. A joint claim will be given a number for each 
claimant, for example, husband and wife, injured parent and children. If 
only one sum is filed for all claimants, the same sum will be assigned 
for each claimant. However, request the claimant to name a sum for each 
claimant. The claim will bear this number throughout the claims process. 
Upon transfer, a new number will not be assigned by the receiving 
office. If a claim does not meet the definition of a proper claim under 
Sec. Sec. 536.26 and 536.27, it will be date stamped and logged as a 
Potentially Compensable Event (PCE).
    (c) The claim will be transferred if the claim incident arose in 
another ACO's geographic area; the receiving ACO will use the claims 
number originally assigned.
    (d) Non-Appropriated Fund Instrumentality (NAFI) claims that relate 
to claims determined cognizable under subpart K of this part will be 
marked with the symbol ``NAFI'' immediately following the claimant's 
name, to preclude erroneous payment from appropriated funds (APF). This 
symbol will also be included in the subject line of all correspondence.
    (e) Upon receipt, copies of the claims will be furnished as follows 
(when a current e-mail address is available and it is agreeable with the 
receiving party, providing copies by e-mail is acceptable):
    (1) To USARCS, if the amount claimed exceeds $25,000, or $50,000 per 
incident. However, if the claim arises under the FTCA or AMCSA, only 
furnish copies if the amount claimed exceeds $50,000, or $100,000 per 
incident.
    (2) For medical malpractice claims, to the appropriate MTF 
Commander/s through MEDCOM Headquarters, and to the Armed Forces 
Institute of Pathology at the addresses listed below.
    MEDCOM, ATTN: MCHO-CL-Q, 2050 Worth Road, Suite 26, Fort Sam 
Houston, TX 78234-5026.
    Department of Legal Medicine, Armed Forces Institute of Pathology, 
1335 E. West Highway, 6-100, Silver Spring, MD 20910-6254, 
Commercial: 301-295-8115, e-mail: casha@afip.osd.mil.
    (3) If the claim is against AAFES forward a copy to: HQ Army and Air 
Force Exchange Service (AAFES), ATTN: Office of the General Counsel (GC-
Z), P.O. Box 650062, Dallas, TX 75265-0062, e-mail: blanchp@aafes.com.
    (4) If the claim involves a NAFI, including a recreational user or 
family child care provider forward a copy to: Army Central Insurance 
Fund, ATTN: CFSC-FM-I, 4700 King Street, Alexandria, VA 22302-4406, e-
mail: riskmanagement@cfsc.army.mil.
    (f) ACOs or CPOs will furnish a copy of any medical or dental 
malpractice claim to the MTF or dental treatment facility commander and 
advise the commander of all subsequent actions. The commander will be 
assisted in his or her responsibility to complete DD Form 2526 (Case 
Abstract for Malpractice Claims).
     Note to Sec. 536.30: See the parallel discussion at DA Pam 27-162, 
paragraph 2-9.



Sec. 536.31  Opening claim files.

    A claim file will be opened when:
    (a) Information that requires investigation under Sec. 536.23 is 
received.
    (b) Records or other documents are requested by a potential claimant 
or legal representative.
    (c) A claim is filed.
     Note to Sec. 536.31: See the parallel discussion at DA Pam 27-162, 
paragraph 2-10.



Sec. 536.32  Transfer of claims among armed services branches.

    (a) Claims filed with the wrong federal agency, or claims that 
should be

[[Page 211]]

adjudicated by receiving State offices under NATO or other SOFA, will be 
immediately transferred to the proper agency together with notice of 
same to the claimant or legal representative. Where multiple federal 
agencies are involved, other agencies will be contacted and a lead 
agency established to take all actions on the claim. Where the DA is the 
lead agency, any final action will include other agencies. Similarly, 
where another agency is the lead agency, that agency will be requested 
to include DA in any final action. Such inclusion will prevent multiple 
dates for filing suit or appeal.
    (b) If another agency has taken denial action on a claim that 
involves the DA, without informing the DA, and in which the DA desires 
to make a payment, the denial action may be reconsidered by the DA not 
later than six months from the date of mailing and payment made 
thereafter.
     Note to Sec. 536.32: See also Sec. Sec. 536.17 and 536.18; AR 27-
20, paragraph 13-2; and the parallel and related discussion of this 
topic at DA Pam 27-162, paragraphs 1-19, 1-20, 2-13 and 13-2.



Sec. 536.33  Use of small claims procedures.

    Small claims procedures are authorized for use whenever a claim may 
be settled for $5,000 or less. These procedures are designed to save 
processing time and eliminate the need for most of the documentation 
otherwise required. These procedures are described in DA Pam 27-162, 
paragraphs 2-14 and 2-26.



Sec. 536.34  Determination of correct statute.

    (a) Consideration under more than one statute. When Congress enacted 
the various claims statutes, it intended to allow federal agencies to 
settle meritorious claims. A claim must be considered under other 
statutes in this part unless one particular statute precludes the use of 
other statutes, whether the claim is filed on DD Form 1842 (Claim for 
Loss of or Damage to Personal Property Incident to Service) or SF 95. 
Prior to denial of an AR 27-20, chapter 11 claim, consider whether it 
may fall within the scope of subparts C, D, or F of this part, and where 
indicated, question the claimant to determine whether the claim sounds 
in tort.
    (b) Exclusiveness of certain remedies. Certain remedies exclude all 
others. For example, the Court of Federal Claims has exclusive 
jurisdiction over U.S. Constitution Fifth Amendment takings, express or 
implied-in-fact, as well as governmental contract losses, or intangible 
property losses. Claims of this nature for $10,000 or less may be filed 
in a U.S. District Court. There is no administrative remedy. While the 
FTCA is the preemptive tort remedy in the United States, its 
commonwealths, territories and possessions, nevertheless, other remedies 
must be exhausted prior to favorable consideration under the FTCA. The 
FTCA does not preclude use of the MCA or the NGCA for claims arising out 
of noncombat activities or brought by soldiers for incident-to-service 
property losses sustained within the United States. See DA Pam 27-162, 
paragraphs 2-15a and b for a more detailed discussion of determining the 
correct statute for property claims versus personal injury and death 
claims. In addition, it is important to consider the nature of the 
claim, e.g., whether the claim may be medical malpractice in nature, 
related to postal matter, or an automobile accident. Discussions of 
these and many other different types of claims are also provided herein 
as well as in the corresponding paragraph 2-15 of DA Pam 27-162. It is 
also very important to consider when a claim may fall outside the 
jurisdiction of the Army claims system. Some of these instances are 
alluded to immediately above, but for a detailed discussion of related 
remedies see Sec. 536.36 of this part and paragraph 2-17 of DA Pam 27-
162.
    (c) Status of Forces Agreement claims. (1) Claims arising out of the 
performance of official duties in a foreign country where the United 
States is the sending State must be filed and processed under a SOFA, 
provided that the claimant is a proper party claimant under the SOFA. DA 
Pam 27-162, paragraph 2-15c sets forth the rules applicable in 
particular countries. A SOFA provides an exclusive remedy subject to 
waiver as set forth in Sec. 536.76(h) of this part.

[[Page 212]]

    (2) Single-service jurisdiction is established for all foreign 
countries in which a SOFA is in effect and for certain other countries. 
A list of these countries is posted on the USARCS Web site; for the 
address see Sec. 536.2(a). Claims will be processed by the service 
exercising single-service responsibility. In the United States, USARCS 
is the receiving State office and all SOFA claims should be forwarded 
immediately to USARCS for action. Appropriate investigation under 
subpart B of this part procedures is required of an ACO or a CPO under 
USARCS' direction.
    (d) Foreign Claims Act claims. (1) Claims by foreign inhabitants, 
arising in a foreign country, which are not cognizable under a SOFA, 
fall exclusively under the FCA. The determination as to whether a 
claimant is a foreign inhabitant is governed by the rules set out in 
subpart C and subpart J of this part. In case of doubt, this 
determination must be based on information obtained from the claimant 
and others, particularly where the claimant is a former U.S. service 
member or a U.S. citizen residing in a foreign country.
    (2) Tort claims will be processed by the armed service that 
exercises single-service responsibility. When requested, the Commander 
USARCS may furnish a Judge Advocate or civilian attorney to serve as a 
Foreign Claims Commission (FCC) for another service. With the 
concurrence of the Commander USARCS, Army JAs may be appointed as 
members of another department's foreign claims commissions. See subpart 
J of this part. The FCA permits compensation for damages caused by 
``out-of-scope'' tortious conduct of Soldier and civilian employees. 
Many of these claims are also compensable under Article 139, Uniform 
Code of Military Justice. See DA Pam 27-162, chap. 9. To avoid the 
double payment of claims, ACOs and CPOs must promptly notify the Command 
Claims Service of each approved Article 139 claim involving a claimant 
who could also file under an applicable SOFA.
    (e) National Guard Claims Act claims. (1) Claims attributed to the 
acts or omissions of ARNG personnel in the course of employment fall 
into the categories set forth in subpart F of this part.
    (2) An ACO will establish with a state claims office routine 
procedures for the disposition of claims, designed to ensure that the 
United States and state authorities do not issue conflicting 
instructions for processing claims. The procedures will require 
personnel to advise the claimant of any remedy against the state or its 
insurer.
    (i) Where the claim arises out of the act or omission of a member of 
the ARNG or a person employed under 32 U.S.C. 709, it must be determined 
whether the employee is acting on behalf of the state or the United 
States. For example, an ARNG pilot employed under section 709 may be 
flying on a state mission, federal mission, or both, on the same trip. 
This determination will control the disposition of the claim. If 
agreement with the concerned state cannot be reached and the claim is 
otherwise payable, efforts may be made to enter into a sharing agreement 
with the state concerned. The following procedures are required in the 
event there is a remedy against the state and the state refuses to pay 
or the state maintains insurance coverage and the claimant has filed an 
administrative claim against the United States. First, forward the file 
and the tort claim memorandum, including information on the status of 
any judicial or administrative action the claimant has taken against the 
state or its insurer to the Commander USARCS. Upon receipt, the 
Commander USARCS will determine whether to require the claimant to 
exhaust his or her remedy against the state or its insurer or whether 
the claim against the United States can be settled without requiring 
such exhaustion. If the Commander USARCS decides to follow the latter 
course of action, he or she will also determine whether to obtain an 
assignment of the claim against the state or its insurer and whether to 
initiate recovery action to obtain contribution or indemnification. The 
state or its insurer will be given appropriate notification in 
accordance with state law.
    (ii) If an administrative claim remedy exists under state law or the 
state maintains liability insurance, the Commander USARCS or an ACO 
acting

[[Page 213]]

upon the Commander USARCS' approval may enter into a sharing agreement 
covering payment of future claims. The purpose of such an agreement is 
to determine in advance whether the state or the DA is responsible for 
processing a claim (did the claim arise from a federal or state 
mission?), to expedite payment in meritorious claims, and to preclude 
double recovery by a claimant.
    (f) Third-party claims involving an independent contractor--(1) 
Generally. (i) Upon receipt, all claims will be examined to determine 
whether a contractor of the United States is the tortfeasor. If so, the 
claimant or legal representative will be notified of the name and 
address of the contractor and further advised that the United States is 
not responsible for the acts or omissions of an independent contractor. 
This will be done prior to any determination as to the contractor's 
degree of culpability as compared to that of the United States.
    (ii) If, upon investigation, the damage is considered to be 
primarily due to the contractor's fault or negligence, the claim will be 
referred to the contractor or the contractor's insurance carrier for 
settlement and the claimant will be so advised.
    (iii) Health care providers hired under personal services contracts 
under the provisions of 10 U.S.C. 1089 are not considered to be 
independent contractors but employees of the United States for tort 
claims purposes.
    (2) Claims for injury or death of contractor employees. Upon receipt 
of a claim for injury or death of a contractor employee, a copy of the 
portions of the contract applicable to claims and workers' compensation 
will be obtained, either through the contracting office or from the 
contractor. Claims personnel must find out the status of any claim for 
workers' compensation benefits as well as whether the United States paid 
the premiums. The goal is to involve the contractor in any settlement, 
where indicated, in the manner set forth in DA Pam 27-162, paragraphs 2-
15f and 2-61. In claims arising in foreign countries consider whether 
the claim is covered by the Defense Bases Act, 42 U.S.C. 1651-1654.
    (g) Claims by contractors for damage to or loss of their property 
during the performance of their contracts. Claims by contractors for 
property damage or loss should be referred to the contracting officer 
for determination as to whether the claim is payable under the contract. 
Such a claim is not payable under the FTCA where the damage results from 
an in-scope act or omission. Contract appeal procedures must be 
exhausted prior to consideration as a bailment under the MCA or FCA.
    (h) Maritime claims. Maritime torts are excluded from consideration 
under the FTCA. The various maritime statutes are exclusive remedies 
within the United States and its territorial waters. Maritime statutes 
include the Army Maritime Claims Settlement Act (AMCSA), 10 U.S.C. 4801, 
4802 and 4806, the Suits in Admiralty Act (SIAA), 46 U.S.C. app. 781-
790, the Public Vessels Act (PVA), 46 U.S.C. app. 781-790, and the 
Admiralty Extension Act (AEA), 46 U.S.C. app. 740. Within the U.S. and 
its territorial waters, maritime suits may be filed under the SIAA or 
the PVA without first filing an administrative claim, except where 
administrative filing is required by the AEA. Administrative claims may 
also be filed under the AMSCA. In any administrative claim brought under 
the AMCSA, all action must be completed not later than two years from 
its accrual date or the SOL will expire. Outside the United States, a 
maritime tort may be brought under the MCA or FCA as well as the AMCSA. 
The body of water on which it occurs must be navigable and a maritime 
nexus must exist. Once a maritime claim is identified, give the claimant 
written notice of the two-year filing requirement. In case of doubt, the 
ACO or CPO should discuss the matter with the appropriate AAO. Even when 
the claimant does not believe that a maritime claim is involved, provide 
the claimant with precautionary notice. See DA Pam 27-162, paragraphs 2-
7e and 8-6.
    (i) Postal claims. See also DA Pam 27-162, paragraphs 2-15i, 2-30 
and 2-56g discussing postal claims.
    (1) Claims by the U.S. Postal Service for funds and stock are 
adjudicated by USARCS with assistance from the Military Postal Service 
Agency and the

[[Page 214]]

ACO or CPO having jurisdiction over the particular Army post office, 
when directed by USARCS to assist in the investigation of the claim.
    (2) Claims for loss of registered and insured mail are processed 
under subpart C of this part by the ACO or CPO having jurisdiction over 
the particular Army post office.
    (3) Claims for loss of, or damage to, parcels delivered by United 
Parcel Service (UPS) are the responsibility of UPS.
    (j) Blast damage claims. After completing an investigation and prior 
to final action, all blast damage claims resulting from Army firing and 
demolition activities must be forwarded to the Commander USARCS for 
technical review. The sole exception to this rule is when a similar 
claim is filed citing the same time, place and type of damage as one 
which has already received technical review. See also DA Pam 27-162, 
paragraph 2-28.
    (k) Motor vehicle damage claims arising from the use of non-
governmental vehicles. See also Sec. 536.60 (splitting property damage 
and personal injury claims) and DA Pam 27-162, paragraphs 2-15k 
(determining the correct statute), 2-61 (joint tort feasors), and 2-62e 
(indemnity or contribution).
    (1) Government tortfeasors. A Soldier or U.S. government civilian 
employee who negligently damages his or her personal property while 
acting within the scope of employment is not a proper claimant for 
damage to that property.
    (2) Claims by lessors for damage to rental vehicles. Third-party 
claims arising from the use of rental vehicles will be processed in the 
same manner as NAFI commercially insured activities after exhaustion of 
any other remedy under the Government Travel Card Program or the Surface 
Deployment and Distribution Command Car Rental Agreement.
    (3) Third-party damages arising from the use of privately owned 
vehicles. Third-party tort claims arising within the United States from 
a Soldier's use of a privately owned vehicle (POV) while allegedly 
within the scope of employment must be forwarded to the Commander USARCS 
for review and consultation before final action. The claim will be 
investigated and any authorization for use ascertained including payment 
for mileage. A copy of the Soldier's POV insurance policy will be 
obtained prior to forwarding. If the DA is an additional insurer under 
applicable state law, the claim will be forwarded to the Soldier's 
liability carrier for payment. When the tort claim arises in a foreign 
country, follow the provisions of subpart J of this part.
    (l) Claims arising from gratuitous use of DOD or Army vehicles, 
equipment or facilities.
    (1) Before the commencement of any event that involves the use of 
DOD or Army land, vehicles, equipment or Army personnel for community 
activities, the Command involved should be advised to first determine 
and weigh the risk to potential third-party claimants against the 
benefits to the DOD or the Army. Where such risk is excessive, try to 
obtain an agreement from the sponsoring civilian organization holding 
the Army harmless. When feasible, third-party liability insurance may be 
required from the sponsor and the United States added to the policy as a 
third-party insured.
    (2) When Army equipment and personnel are used for debris removal 
relief pursuant to the Federal Disaster Relief Act, 42 U.S.C. 5173, the 
state is required to assume responsibility for third-party claims. The 
senior judge advocate for a task force engaged in such relief should 
obtain an agreement requiring the state to hold the Army harmless and 
establish a procedure for payment by the state. Claims will be received, 
entered into the TSCA database, investigated and forwarded to state 
authorities for action.
    (m) Real estate claims. Claims for rent, damage, or other payments 
involving the acquisition, use, possession or disposition of real 
property or interests therein, are generally payable under AR 405-15. 
These claims are handled by the Real Estate Claims Office in the 
appropriate COE District or a special office created for a deployment. 
Directorate of Real Estate, Office of the Chief of Engineers, has 
supervisory authority. Claims for damage to real property and incidental 
personal property, but not for rent (for example, claims arising during 
a maneuver or

[[Page 215]]

deployment) may be payable under subparts C or J of this part. However, 
priority should be given to the use of AR 405-15 as it is more flexible 
and expeditious. In contingency operations and deployments, there is a 
large potential for overlap between contractual property damage claims 
and noncombat activity/maneuver claims. Investigate carefully to ensure 
the claim is in the proper channel (claims or real estate), that it is 
fairly settled, and that the claimant does not receive a double payment. 
For additional guidance, see subpart J of this part and United States 
Army Claims Service Europe (USACSEUR) Real Estate/Office of the Judge 
Advocate Standard Operating Procedures for Processing Claims Involving 
Real Estate During Contingency Operations (August 20, 2002).
    (n) Claims generated by civil works projects. Civil works projects 
claims arising from tortious activities are defined by whether the 
negligent or wrongful act or omission arising from a project or activity 
is funded by a civil works appropriation. Civil works claims are those 
noncontractual claims which arise from a negligent or wrongful act or 
omission during the performance of a project or activity funded by civil 
works appropriations as distinguished from a project or activity funded 
by Army operation and maintenance funds. Civil works claims are paid out 
of civil works appropriations to the extent set forth in Sec. 
536.71(f). A civil works claim can also arise out of a noncombat 
activity, for example, an inverse condemnation claim in which flooding 
exceeds the high water mark. Maritime claims under subpart H of this 
part are civil works claims when they arise out of the operation of a 
dam, locks or navigational aid.
    Note to Sec. 536.34: See parallel discussion at DA Pam 27-162, 
paragraph 2-1.



Sec. 536.35  Unique issues related to environmental claims.

    Claims for property damage, personal injury, or death arising in the 
United States based on contamination by toxic substances found in the 
air or the ground must be reported by USARCS to the Environmental Law 
Division of the Army Litigation Center and the Environmental Torts 
Branch of DOJ. Such claims arising overseas must be reported to the 
Command Claims Service with geographical jurisdiction over the claim and 
USARCS. Claims for personal injury from contamination frequently arise 
at an area that is the subject of claims for cleanup of the 
contamination site. The cleanup claims involve other Army agencies, use 
of separate funds, and prolonged investigation. Administrative 
settlement is not usually feasible because settlement of property damage 
claims must cover all damages, including personal injury. Payment by 
Defense Environmental Rehabilitation Funds should be considered 
initially and any such payment should be deducted from any settlement 
under AR 27-20.



Sec. 536.36  Related remedies.

    An ACO or a CPO routinely receives claims or inquiries about claims 
that clearly are not cognizable under this part. It is the DA's policy 
that every effort be made to discover another remedy and inform the 
inquirer as to its nature. Claims personnel will familiarize themselves 
with the remedies set forth in DA Pam 27-162, paragraph 2-17, to carry 
out this policy. If no appropriate remedy can be discovered, forward the 
file to the Commander USARCS, with recommendations.



Sec. 536.37  Importance of the claims investigation.

    Prompt and thorough investigation will be conducted on all potential 
and actual claims for and against the government. Evidence developed 
during an investigation provides the basis for every subsequent step in 
the administrative settlement of a claim or in the pursuit of a lawsuit. 
Claims personnel must gather and record adverse as well as favorable 
information. The CJA, claims attorney or unit claims officer must 
preserve their legal and factual findings.



Sec. 536.38  Elements of the investigation.

    (a) The investigation is conducted to ascertain the facts of an 
incident. Which facts are relevant often depends on the law and 
regulations applicable to the conduct of the parties involved but 
generally the investigation should develop definitive answers to such

[[Page 216]]

questions as ``When?'' ``Where?'' ``Who?'' ``What?'' and ``How?''. 
Typically, the time, place, persons, and circumstances involved in an 
incident may be established by a simple report, but its cause and the 
resulting damage may require extensive effort to obtain all the 
pertinent facts.
    (b) The object of the investigation is to gather, with the least 
possible delay, the best available evidence without accumulating 
excessive evidence concerning any particular fact. The claimant is often 
an excellent source of such information and should be contacted early in 
the investigation, particularly when there is a question as to whether 
the claim was timely filed.



Sec. 536.39  Use of experts, consultants and appraisers.

    (a) ACOs or CPOs will budget operation and maintenance (O&M) funds 
for the costs of hiring property appraisers, accident 
reconstructionists, expert consultants to furnish opinions, and medical 
specialists to conduct independent medical examinations (IMEs). Other 
expenses to be provided for from O&M funds include the purchase of 
documents, such as medical records, and the hiring of mediators. See 
Sec. 536.53(b). Where the cost exceeds $750 or local funds are 
exhausted, a request for funding should be directed to the Commander 
USARCS, with appropriate justification. The USARCS AAO must be notified 
as soon as possible when an accident reconstruction is indicated.
    (b) Where the claim arises from treatment at an Army MTF, the MEDDAC 
commander should be requested to fund the cost of an independent 
consultant's opinion or an IME.
    (c) The use of outside consultants and appraisers should be limited 
to claims in which liability or damages cannot be determined otherwise 
and in which the use of such sources is economically feasible, for 
instance, where property damage is high in amount and not determinable 
by a government appraiser or where the extent of personal injury is 
serious and a government IME is neither available nor acceptable to a 
claimant. Prior to such an examination at an MTF, ensure that the 
necessary specialists are available and a prompt written report may be 
obtained.
    (d) Either an IME or an expert opinion is procured by means of a 
personal services contract under the Federal Acquisition Regulation 
(FAR), part 37, 48 CFR 37.000 et seq., through the local contracting 
office. The contract must be in effect prior to commencement of the 
records review. Payment is authorized only upon receipt of a written 
report responsive to the questions asked by the CJA or claims attorney.
    (e) Whenever a source other than claims personnel is used to assist 
in the evaluation of a claim in which medical information protected by 
HIPAA is involved, the source must sign an agreement designed to protect 
the patient's privacy rights.



Sec. 536.40  Conducting the investigation.

    (a) The methods and techniques for investigating specific categories 
of claims are set forth in DA Pam 27-162, paragraphs 2-25 through 2-34. 
The investigation of medical malpractice claims should be conducted by a 
CJA or claims attorney, using a medical claims investigator.
    (b) A properly filed claim must contain enough information to permit 
investigation. For example, if the claim does not specify the date, 
location or details of every incident complained of, the claimant or 
legal representative should be required to furnish the information.
    (c) Request the claimant or legal representative to specify a theory 
of liability. However, the investigation should not be limited to the 
theories specified, particularly where the claimant is unrepresented. 
All logical theories should be investigated.



Sec. 536.41  Determination of liability--generally.

    (a) Under the FTCA, the United States is liable in the same manner 
and to the same extent as a private individual under like circumstances 
in accordance with the law of the place where the act or omission giving 
rise to the tort occurred (28 U.S.C. 2673 and 2674). This means that 
liability must rest on the existence of a tort cognizable under state 
law, hereinafter referred to as a state tort. A finding of

[[Page 217]]

state tort liability requires the litigating attorney to prove the 
elements of duty, breach of duty, causation, and damages as interpreted 
by federal case law.
    (b) The foregoing principles and requirements will be followed in 
regard to tort claims against the United States under other subparts, 
with certain exceptions noted within the individual subparts or 
particular tort statutes.
    (c) Interpretation will be made in accordance with FTCA case law and 
also maritime case law where applicable. Additionally, a noncombat 
activity can furnish the basis for a claim under subparts C, F, and J of 
this part. Noncombat activities include claims arising out of civil 
works, such as inverse condemnation.
    (d) Federal, not state or local, law applies to a determination as 
to who is a federal employee or a member of the armed forces. Under all 
subparts, the designation ``federal employee'' excludes a contractor of 
the United States. See 28 U.S.C. 2671. See however, Sec. 
536.23(b)(4)(ii) concerning personal services contractors. For 
employment identification purposes apply FTCA case law in making a 
determination.
    (e) Federal, not state or local, law applies to an interpretation of 
the SOL under all subparts. Minority or incompetence does not toll the 
SOL. Case law developed under the FTCA will be used in other subparts in 
interpreting SOL questions.
    (f) Under the FTCA state or local law is used to determine scope of 
employment and under other subparts for guidance.



Sec. 536.42  Constitutional torts.

    A claim for violation of the U.S. Constitution does not constitute a 
state tort and is not cognizable under any subpart. A constitutional 
claim will be scrutinized in order to determine whether it is totally or 
partially payable as a state tort. For example, a Fifth Amendment taking 
may be payable in an altered form as a real estate claim. For further 
discussion see DA Pam 27-162, paragraph 2-36.



Sec. 536.43  Incident to service.

    (a) A member of the armed forces' claim for personal injury or 
wrongful death arising incident to service is not payable under any 
subpart except to the extent permitted by the receiving State under 
Sec. Sec. 536.114 through 536.116 (Claims arising overseas); however, a 
claim by a member of the United States Armed Forces for property loss or 
damage may be payable under AR 27-20, chapter 11 or, if not, under 
subparts C, E, F, or G of this part. Derivative claims and claims for 
indemnity are also excluded.
    (b) Claims for personal injury or wrongful death by members of a 
foreign military force participating in a joint military exercise or 
operation arising incident to service are not payable under any subpart. 
Claims for property loss or damage, but not subrogated claims, may be 
payable under subpart C of this part. Derivative claims and claims for 
indemnity or contribution are not payable under any subpart.
     Note to Sec. 536.43: For further discussion see DA Pam 27-162, 
paragraph 2-37.



Sec. 536.44  FECA and LSHWCA claims exclusions.

    A federal or NAFI employee's personal injury or wrongful death claim 
payable under the Federal Employees Compensation Act (FECA) or the 
Longshore and Harbor Workers Compensation Act (LSHWCA) is not payable 
under any subpart. Derivative claims are also excluded but a claim for 
indemnity may be payable under certain circumstances. A federal or NAFI 
employee's claim for an incident-to-service property loss or damage may 
be payable under AR 27-20, chapter 11 or, if not, under subparts C, D, 
F, G, H or J of this part. For further discussion see DA Pam 27-162, 
paragraph 2-38.



Sec. 536.45  Statutory exceptions.

    This topic is more fully discussed in DA Pam 27-162, paragraph 2-39. 
The exclusions listed below are found at 28 U.S.C. 2680 and apply to 
subparts C, D, F, and H and Sec. Sec. 536.107 through 536.113 (Claims 
arising in the United States) of subpart G, except as noted therein, and 
not to subparts E, J or Sec. Sec. 536.107

[[Page 218]]

through 536.113 (Claims arising overseas) of subpart G of this part. A 
claim is not payable if it:
    (a) Is based upon an act or omission of an employee of the U.S. 
government, exercising due care, in the execution of a statute or 
regulation, whether or not such statute or regulation is valid. This 
exclusion does not apply to a noncombat activity claim.
    (b) Is based upon the exercise or performance or the failure to 
exercise or perform a discretionary function or duty on the part of a 
federal agency or an employee of the government, whether or not the 
discretion is abused. This exclusion does not apply to a noncombat 
activity claim.
    (c) Arises out of the loss, miscarriage, or negligent transmission 
of letters or postal matters. This exclusion is not applicable to 
registered or certified mail claims under subpart C of this part. See 
Sec. 536.34(i).
    (d) Arises in respect of the assessment or collection of any tax or 
customs duty, or the detention of any goods or merchandise by any 
customs or other law enforcement officer. See 28 U.S.C. 2680(c).
    (e) Is cognizable under the SIAA (46 U.S.C. app. 741-752), the PVA 
(46 U.S.C. app. 781-790), or the AEA (46 U.S.C. app. 740). This 
exclusion does not apply to subparts C, F, H or J of this part.
    (f) Arises out of an act or omission of any federal employee in 
administering the provisions of the Trading with the Enemy Act, 50 
U.S.C. app. 1-44.
    (g) Is for damage caused by the imposition or establishment of a 
quarantine by the United States.
    (h) Arises out of assault, battery, false imprisonment, false 
arrest, malicious prosecution, abuse of process, libel, slander, 
misrepresentation, deceit, or interference with contract rights, except 
for acts or omissions of investigation of law enforcement officers of 
the U.S. government with regard to assault, battery, false imprisonment, 
false arrest, abuse of process or malicious prosecution. This exclusion 
also does not apply to a health care provider as defined in 10 U.S.C. 
1089 and Sec. 536.80 of this part, under the conditions listed therein.
    (i) Arises from the fiscal operations of the U.S. Department of the 
Treasury or from the regulation of the monetary system.
    (j) Arises out of the combatant activities of U.S. military or naval 
forces, or the Coast Guard during time of war.
    (k) Arises in a foreign country. This exclusion does not apply to 
subparts C, E, F, H, J or Sec. Sec. 536.114 through 536.116 (Claims 
arising overseas) of subpart G of this part.
    (l) Arises from the activities of the Tennessee Valley Authority, 28 
U.S.C. 2680(l).
    (m) Arises from the activities of the Panama Canal Commission, 28 
U.S.C. 2680(m).
    (n) Arises from the activities of a federal land bank, a federal 
intermediate credit bank, or a bank for cooperatives, 28 U.S.C. 2680(n).
     Note to Sec. 536.45: This topic is more fully discussed in DA Pam 
27-162, paragraph 2-39.



Sec. 536.46  Other exclusions.

    (a) Statutory employer. A claim is not payable under any subpart if 
it is for personal injury or death of any contract employee for whom 
benefits are provided under any workers' compensation law, if the 
provisions of the workers' compensation insurance are retrospective and 
charge an allowable expense to a cost-type contract, or if precluded by 
state law. See Federal Tort Claims Handbook (FTCH), section II, D7 
(posted on the Web at https://www.jagcnet.army.mil/laawsxxi/cds.nsf. 
Select the link ``Claims'' under ``JAG Publications.'') The statutory 
employer exclusion also applies to claims that may be covered by the 
Defense Bases Act, 42 U.S.C. 1651-1654.
    (b) Flood exclusion. Within the United States a claim is not payable 
if it arises from damage caused by flood or flood waters associated with 
the construction or operation of a COE flood control project, 33 U.S.C. 
702(c). See DA Pam 27-162, paragraph 2-40.
    (c) ARNG property. A claim is not payable under any subpart if it is 
for damage to, or loss of, property of a state, commonwealth, territory, 
or the District of Columbia caused by ARNG personnel, engaged in 
training or duty under 32 U.S.C. 316, 502, 503, 504, or 505, who are 
assigned to a unit maintained

[[Page 219]]

by that state, commonwealth, territory, or the District of Columbia. See 
DA Pam 27-162, paragraph 2-41.
    (d) Federal Disaster Relief Act. Within the United States a claim is 
not payable if it is for damage to, or loss of, property or for personal 
injury or death arising out of debris removal by a federal agency or 
employee in carrying out the provisions of the Federal Disaster Relief 
Act, 42 U.S.C. 5173. See DA Pam 27-162, paragraph 2-42.
    (e) Non-justiciability doctrine. A claim is not payable under any 
subpart if it arises from activities that present a non-justiciable 
political question. See DA Pam 27-162, paragraph 2-43.
    (f) National Vaccine Act. (42 U.S.C. 300aa-1 through 300aa-7). A 
claim is not payable under any subpart if it arises from the 
administration of a vaccine unless the conditions listed in the National 
Vaccine Injury Compensation Program (42 U.S.C. 300aa-9 through 300aa-19) 
have been met. See DA Pam 27-162, paragraph 2-17c(6)(a).
    (g) Defense Mapping Agency. A claim is not payable under any subpart 
if it arises from inaccurate charting by the Defense Mapping Agency, 10 
U.S.C. 456. See FTCH section II, B4s (Web address at paragraph (a) of 
this section).
    (h) Quiet Title Act. Within the U.S., a claim is not payable if it 
falls under the Quiet Title Act 28 U.S.C. 2409a.
    (i) Defense Bases Act. A claim arising outside the United States is 
not payable if it is covered by the Defense Bases Act, 42 U.S.C. 1651-
1654.
    Note to Sec. 536.46: See parallel discussion at DA Pam 27-162, 
paragraphs 2-40 through 2-43.



Sec. 536.47  Statute of limitations.

    To be payable, a claim against the United States under any subpart, 
except Sec. Sec. 536.114 through 536.116 (Claims arising overseas), 
must be filed no later than two years from the date of accrual as 
determined by federal law. The accrual date is the date on which the 
claimant is aware of the injury and its cause. The claimant is not 
required to know of the negligent or wrongful nature of the act or 
omission giving rise to the claim. The date of filing is the date of 
receipt by the appropriate federal agency, not the date of mailing. See 
also Sec. 536.26(a) and parallel discussion at DA Pam 27-162, paragraph 
2-44.



Sec. 536.48  Federal employee requirement.

    To be payable, a claim under any subpart except subpart K of this 
part, Sec. Sec. 536.153 through 536.157 (Claims involving tortfeasors 
other than nonappropriated fund employees), must be based on the acts or 
omissions of a member of the armed forces, a member of a foreign 
military force within the United States with which the United States has 
a reciprocal claims agreement, or a federal civilian employee. This does 
not include a contractor of the United States. Apply federal case law 
for interpretation. See parallel discussion at DA Pam 27-162, paragraph 
2-46.



Sec. 536.49  Scope of employment requirement.

    To be payable, a claim must be based on acts or omissions of a 
member of the armed forces, a member of a foreign military force within 
the United States with which the United States has a reciprocal claims 
agreement, or a federal employee acting within the scope of employment, 
except for subparts E, J, or subpart K of this part, Sec. Sec. 536.153 
through 536.157 (Claims involving tortfeasors other than nonappropriated 
fund employees). A claim arising from noncombat activities must be based 
on the armed service's official activities. Excluded are claims based on 
vicarious liability or the holder theory in which the owner of the 
vehicle is responsible for any injury or damage regardless of who the 
operator was. See parallel discussion at DA Pam 27-162, paragraph 2-46.



Sec. 536.50  Determination of damages--applicable law.

    (a) The Federal Tort Claims Act. The whole law of the place where 
the incident giving rise to the claim occurred, including choice of law 
rules, is applicable. Therefore, the law of the place of injury or death 
does not necessarily apply. Where there is a conflict between local law 
and an express provision of the FTCA, the latter governs.
    (b) The Military Claims Act or National Guard Claims Act. See 
subparts C and F of this part. The law set forth in Sec. 536.80 applies 
only to claims accruing on or after September 1, 1995. The law of the

[[Page 220]]

place of the incident giving rise to the claim will apply to claims 
arising in the United States, its commonwealths, territories and 
possessions prior to September 1, 1995. The general principles of U.S. 
tort law will apply to property damage or loss claims arising outside 
the United States prior to September 1, 1995. Established principles of 
general maritime law will apply to injury or death claims arising 
outside the United States prior to September 1, 1995. See Moragne v. 
States Marine Lines, Inc., 398 U.S. 375 (1970) and federal case law. 
Where general maritime law provides no guidance, the general principles 
of U.S. tort law will apply.
    (c) The Foreign Claims Act. See subpart J of this part. The law of 
the place of occurrence applies to the resolution of claims. However, 
the law of damages set forth in Sec. 536.139 will serve as a guide.
    (d) The Army Maritime Claims Settlement Act. Maritime law applies.
    (e) Damages not payable. Under all subparts, property loss or damage 
refers to actual tangible property. Accordingly, consequential damages, 
including, but not limited to bail, interest (prejudgment or otherwise), 
or court costs are not payable. Costs of preparing, filing, and pursuing 
a claim, including expert witness fees, are not payable. The payment of 
punitive damages, that is, damages in addition to general and special 
damages that are otherwise payable, is prohibited. See DA Pam 27-162, 
paragraphs 2-56 and 3-4b.
    (f) Source of attorney's fees. Attorney's fees are taken from the 
settlement amount and not added thereto. They may not exceed 20 percent 
of the settlement amount under any subpart.
    Note to Sec. 536.50: For further discussion see DA Pam 27-162, 
paragraph 2-51.



Sec. 536.51  Collateral source rule.

    Where permitted by applicable state or maritime law, damages 
recovered from collateral sources are payable under subparts D and H, 
but not under subparts C, E, F, or J of this part. For further 
discussion see DA Pam 27-162, paragraph 2-57.



Sec. 536.52  Subrogation.

    Subrogation is the substitution of one person in place of another 
with regard to a claim, demand or right. It should not be confused with 
a lien, which is an obligation of the claimant. Applicable state law 
should be researched to determine the distinction between subrogation 
and a lien. Subrogation claims are payable under subparts D and H, but 
not under subparts C, E, F or J of this part. For further discussion see 
DA Pam 27-162, paragraph 2-58.



Sec. 536.53  Evaluation of claims--general rules and guidelines.

    (a) Before claims personnel evaluate a claim:
    (1) A claimant or claimant's legal representative will be furnished 
the opportunity to substantiate the claim by providing essential 
documentary evidence according to the claim's nature including, but not 
instead of, the following: Medical records and reports, witness 
statements, itemized bills and paid receipts, estimates, federal tax 
returns, W-2 forms or similar proof of loss of earnings, photographs, 
and reports of appraisals or investigation. If necessary, request 
permission, through the legal representative, to interview the claimant, 
the claimant's family, proposed witnesses and treating health care 
providers (HCPs). In a professional negligence claim, the claimant will 
submit an expert opinion when requested. State law concerning the 
requirement for an affidavit of merit should be cited.
    (2) When the claimant or the legal representative fails to respond 
in a timely manner to informal demands for documentary evidence, 
interviews, or an independent medical examination (IME), make a written 
request. Such written request provides notice to the claimant that 
failure to provide substantiating evidence will result in an evaluation 
of the claim based only on information currently in the file. When, 
despite the government's request, there is insufficient information in 
the file to permit evaluation, the claim will be denied for failure to 
document it. Failure to submit to an IME or sign an authorization to use 
medical information protected by HIPAA, for

[[Page 221]]

review or evaluation by a source other than claims personnel, are both 
grounds for denial for failure to document, provided such evaluation is 
essential to the determination of liability or damages. State a time 
limit, for example, 30 or 60 days, to furnish the substantiation or 
expert opinion required in a medical malpractice claim.
    (3) If, in exchange for complying with the government's request for 
the foregoing information, the claimant or the legal representative 
requests similar information from the file, the claimant may be provided 
such information and documentation as is releasable under the Federal 
Rules of Civil Procedure (FRCP). Additionally, work product may be 
released if such release will help settle the claim. See Sec. 536.18.
    (b) An evaluation should be viewed from the claimant's perspective. 
In other words, before denying a claim, first determine whether there is 
any reasonable basis for compromise. Certain jurisdictional issues and 
statutory bases may not be open for compromise. The incident to service 
and FECA exclusions are rarely subject to compromise, whereas the SOL is 
more subject to compromise. Factual and legal disputes are 
compromisable, frequently providing a basis for limiting damages, not 
necessarily grounds for denial. Where a precise issue of dispute is 
identified and is otherwise unresolvable, mediation by a disinterested 
qualified person, such as a federal judge, or foreign equivalent for 
claims arising under the FCA, should be obtained upon agreement with the 
claimant or the claimant's legal representative. Contributory negligence 
has given way to comparative negligence in most United States 
jurisdictions. In most foreign countries, comparative negligence is the 
rule of law.
     Note to Sec. 536.53: For further discussion see DA Pam 27-162, 
paragraph 2-59.



Sec. 536.54  Joint tortfeasors.

    When joint tortfeasors are liable, it is DA policy to pay only the 
fair share of a claim attributable to the fault of the United States 
rather than pay the claim in full and then bring suit against the joint 
tortfeasor for contribution. If payment from a joint tortfeasor is not 
forthcoming after the CJA's demand, the United States should settle for 
its fair share, provided the claimant is willing to hold the United 
States harmless. Where a joint tortfeasor's liability greatly outweighs 
that of the United States, the claim should be referred to the joint 
tortfeasor for action.



Sec. 536.55  Structured settlements.

    (a) The use of future periodic payments, including reversionary 
medical trusts, is encouraged to ensure that the injured party is 
adequately compensated and able to meet future needs.
    (1) It is necessary to ensure adequate care and compensation for a 
minor or other incompetent claimant or unemployed survivor over a period 
of years.
    (2) A medical trust is necessary to ensure the long-term 
availability of funds for anticipated future medical care, the cost of 
which is difficult to predict.
    (3) The injured party's life expectancy cannot be reasonably 
determined or is likely to be shortened.
    (b) Under subpart D of this part, structured settlements cannot be 
required but are encouraged in situations listed above or where state 
law permits them. In the case of a minor, every effort should be made to 
insure that the minor, and not the parents, receives the benefit of the 
settlement. Annuity payments at the age of majority should be 
considered. If rejected, a blocked bank account may be used.
    (c) It is the policy of the Department of Justice never to discuss 
the tax-free nature of a structured settlement.
     Note to Sec. 536.55: For further discussion, see DA Pam 27-162, 
paragraph 2-63.



Sec. 536.56  Negotiations--purpose and extent.

    It is DA policy to settle meritorious claims promptly and fairly 
through direct negotiation at the lowest possible level. The Army's 
negotiator should not admit liability as such is not necessary. However, 
the settlement should reflect diminished value where contributory 
negligence or other value-diminishing factors exist. The negotiator 
should be thoroughly familiar with all aspects of the case, including 
the claimant's background, the key witnesses, the anticipated testimony 
and

[[Page 222]]

the appearance of the scene. There is no substitute for the claims 
negotiator's personal study of, and participation in, the case before 
settlement negotiations begin. If settlement is not possible due to the 
divergence in the offers, refine the issues as much as possible in order 
to expedite any subsequent suit. Mediation should be used if the 
divergence is due to an issue of law affecting either liability or 
damages. For further discussion see DA Pam 27-162, paragraph 2-64.



Sec. 536.57  Who should negotiate.

    An AAO or, when delegated additional authority, an ACO or a CPO, has 
authority to settle claims in an amount exceeding the monetary authority 
delegated by regulation. It is DA policy to delegate USARCS authority, 
on a case-by-case basis, to an ACO or a CPO possessing the appropriate 
ability and experience. Only an attorney should negotiate with a 
claimant's attorney. Negotiations with unrepresented claimants may be 
conducted by a non-attorney, under the supervision of an attorney. For 
further discussion see DA Pam 27-162, paragraph 2-65.



Sec. 536.58  Settlement negotiations with unrepresented claimants.

    All aspects of the applicable law and procedure, except the amount 
to be claimed, should be explained to both potential and actual 
claimants. The negotiator will ensure that the claimant is aware of 
whether the negotiator is an attorney or a non-attorney, and that the 
negotiator represents the United States. As to claims within USARCS' 
monetary authority, the chronology and details of negotiations should be 
memorialized with a written record furnished to the claimant. The 
claimant should understand that it is not necessary to hire an attorney, 
but when an attorney is needed, the negotiator should recommend hiring 
one. In a claim where liability is not an issue, the claimant should be 
informed that if an attorney is retained, the claimant should attempt to 
negotiate an hourly fee for determination of damages only. For further 
discussion see DA Pam 27-162, paragraph 2-68.



Sec. 536.59  Settlement or approval authority.

    ``Settlement authority'' is a statutory term (10 U.S.C. 2735) 
meaning that officer authorized to approve, deny or compromise a claim, 
or make final action. ``Approval authority'' means the officer empowered 
to settle, pay or compromise a claim in full or in part, provided the 
claimant agrees. ``Final action authority'' means the officer empowered 
to deny or make a final offer on a claim. Determining the proper officer 
empowered to approve or make final action on a claim depends on the 
claims statute involved and any limitations that apply under that 
statute. DA Pam 27-162, paragraph 2-69, outlines how various authority 
is delegated among offices.



Sec. 536.60  Splitting property damage and personal injury claims.

    Normally, a claim will include all damages that accrue by reason of 
the incident. Where a claimant has a claim for property damage and 
personal injury arising from the same incident, the property damage 
claim may be paid, under certain circumstances, prior to the filing of 
the personal injury claim. The personal injury claim may be filed later 
provided it is filed within the applicable statute of limitations. When 
both property damage and personal injury arise from the same incident, 
the property damage claim may be paid to either the claimant or, under 
subparts D or H of this part, the insurer and the same claimant may 
receive a subsequent payment for personal injury. Only under subparts D 
or H of this part may the insurer receive subsequent payment for 
subrogated medical bills and lost earnings when the personal injury 
claim is settled. The primary purpose of settling an injured claimant's 
property damage claim before settling the personal injury claim is to 
pay the claimant for vehicle damage expeditiously and avoid costs 
associated with delay such as loss of use, loss of business, or storage 
charges. The Commander USARCS' approval must be obtained whenever the 
estimated value of any one claim exceeds $25,000, or the value of all 
claims, actual or potential, arising from the incident exceeds $50,000; 
however, if the

[[Page 223]]

claim arises under the FTCA or AMCSA, only if the amount claimed exceeds 
$50,000, or $100,000 per incident.



Sec. 536.61  Advance payments.

    (a) This section implements 10 U.S.C. 2736 (Act of September 8, 1961 
(75 Stat. 488)) as amended by Public Law 90-521 (82 Stat. 874); Public 
Law 98-564 (90 Stat. 2919); and Public Law 100-465 (102 Stat. 2005)). No 
new liability is created by 10 U.S.C. 2736, which merely permits partial 
advance payments, only under subparts C, F or J of this part, on claims 
not yet filed. See AR 27-20, paragraph 11-18 for information on 
emergency partial payments in personnel claims, which are not governed 
by 10 U.S.C. 2736.
    (b) The Judge Advocate General (TJAG) and the Assistant Judge 
Advocate General (TAJAG) may make advance payments in amounts not 
exceeding $100,000; the Commander USARCS, in amounts not exceeding 
$25,000, and the authorities designated in Sec. Sec. 536.786(4) and (5) 
and 536.101, in amounts not exceeding $10,000, subject to advance 
coordination with USARCS, if the estimated total value of the claim 
exceeds their monetary authority. Requests for advance payments in 
excess of $10,000 will be forwarded to USARCS for processing.
    (c) Under subpart J of this part, three-member foreign claims 
commissions may make advance payments under the FCA in amounts not 
exceeding $10,000, subject to advance coordination with USARCS if the 
estimated total value of the claim exceeds their monetary authority.
    (d) An advance payment, not exceeding $100,000, is authorized in the 
limited category of claims or potential claims considered meritorious 
under subparts C, F or J of this part, that result in immediate 
hardship. An advance payment is authorized only under the following 
circumstances:
    (1) The claim, or potential claim, must be determined to be 
cognizable and meritorious under the provisions of subparts C, F or J of 
this part.
    (2) An immediate need for food, clothing, shelter, medical or burial 
expenses, or other necessities exists.
    (3) The payee, so far as can be determined, would be a proper 
claimant, including an incapacitated claimant's spouse or next-of-kin.
    (4) The total damage sustained must exceed the amount of the advance 
payment.
    (5) A properly executed advance payment acceptance agreement has 
been obtained. This acceptance agreement must state that it does not 
constitute an admission of liability by the United States and that the 
amount paid shall be deducted from any subsequent award.
    (e) There is no statutory authority for making advance payments for 
claims payable under subparts D or H of this part.
     Note to Sec. 536.61: For further discussion see DA Pam 27-162, 
paragraph 2-71.



Sec. 536.62  Action memorandums.

    (a) When required. (1) All claims will be acted on prior to being 
closed except for those that are transferred. For claims on which suit 
is filed before final action, see Sec. 536.66. A settlement authority 
may deny or pay in full or in part any claim in a stated amount within 
his or her delegated authority. An approval authority may pay in full or 
in part, but may not deny, a claim in a stated amount within his or her 
delegated authority. If any one claim arising out of the same incident 
exceeds a settlement or approval authority's monetary jurisdiction, all 
claims from that incident will be forwarded to the authority having 
jurisdiction.
    (2) In any claim which must be supported by an expert opinion as to 
duty, negligence, causation or damages, an expert opinion must be 
submitted upon request. All opinions must meet the standards set forth 
in Federal Rule of Evidence 702.
    (3) An action memorandum is required for all final actions 
regardless of whether payment is made electronically. The memorandum 
will contain a sufficient rendition of the facts, law or damages to 
justify the action being taken. (A model action is posted on the USARCS 
Web site; for the address see Sec. 536.2(a).)
    (b) Memorandum of Opinion. Upon completion of the investigation, the

[[Page 224]]

ACO or CPO will prepare a memorandum of opinion in the format prescribed 
at DA Pam 27-162, when a claim is forwarded to USARCS for action. This 
requirement can be waived by the USARCS AAO.
    (c) Claim brought by a claims authority or superior. A claim filed 
by an approval or settlement authority or his or her superior officer in 
the chain of command or a family member of either will be investigated 
and forwarded for final action, without recommendation, to the next 
higher settlement authority (in an overseas area, this includes a 
command claims service) or to USARCS.
    Note to Sec. 536.62: For further discussion see DA Pam 27-162, 
paragraph 2-72.



Sec. 536.63  Settlement agreements.

    (a) When required. (1) A claimant's acceptance of an award 
constitutes full and final settlement and release of any and all claims 
against the United States and its employees, except as to payments made 
under Sec. Sec. 536.60 and 536.61. A settlement agreement is required 
prior to payment on all tort claims, whether the claim is paid in full 
or in part.
    (2) DA Form 1666 (Claims Settlement Agreement) may be used for 
payment of COE claims of $2,500 or less or all Army Central Insurance 
Fund and Army and Air Force Exchange Service claims.
    (3) DA Form 7500 (Tort Claim Payment Report) will be used for all 
payments from the Defense Finance and Accounting Service (DFAS), for 
example, FTCA claims of $2,500 or less, FCA and MCA claims of $100,000 
or less and all maritime claims regardless of amount.
    (4) Financial Management Service (FMS) Forms 194, 196 and 197 will 
be used for all payments from the Judgment Fund, for example, FTCA 
claims exceeding $2,500, MCA and FCA claims exceeding $100,000.
    (5) An alternative settlement agreement will be used when the 
claimant is represented by an attorney, or when any of the above 
settlement agreement forms are legally insufficient (such as when 
multiple interests are present, a hold harmless agreement is reached, or 
there is a structured settlement). For further discussion, see DA Pam 
27-162, paragraph 2-73c.
    (b) Unconditional settlement. The settlement agreement must be 
unconditional. The settlement agreement represents a meeting of the 
minds. Any changes to the agreement must be agreed upon by all parties. 
The return of a proffered settlement agreement with changes written 
thereon or on an accompanying document represents, in effect, a 
counteroffer and must be resolved. Even if the claimant signs the 
agreement and objects to its terms, either in writing or verbally, the 
settlement is defective and the objection must be resolved. Otherwise a 
final offer should be made.
    (c) Court approval--(1) When required. Court approval is required in 
a wrongful death claim, or where the claimant is a minor or incompetent. 
The claimant is responsible to obtain court approval in a jurisdiction 
that is locus of the act or omission giving rise to the claim or in 
which the claimant resides. The court must be a state or local court, 
including a probate court. If the claimant can show that court approval 
is not required under the law of the jurisdiction where the incident 
occurred or where the claimant resides, the citation of the statute will 
be provided and accompany the payment documents.
    (2) Attorney representation. If the claimant is a minor or 
incompetent, the claimant must be represented by a lawyer. If not 
already represented, the claimant should be informed that the 
requirement is mandatory unless state or local law expressly authorizes 
the parents or a person in loco parentis to settle the claim.
    (3) Costs. The cost of obtaining court approval will be factored 
into the amount of the settlement; however, the amount of the costs and 
other costs will not be written into the settlement, only the 20% 
limitation on attorney fees will be included.
    (4) Claims involving an estate or personal representative of an 
estate. On claims presented on behalf of a decedent's estate, the law of 
the state having jurisdiction should be reviewed to determine who may 
bring a claim on

[[Page 225]]

behalf of the estate, if court appointment of an estate representative 
is required, and if court approval of the settlement is required.
    (d) Signature requirements. (1) Except as noted in paragraphs (d)(2) 
through (d)(6) of this section, all settlement agreements will be signed 
individually by each claimant. A limited power of attorney signed by the 
claimant specifically stating the amount being accepted and authorizing 
an attorney at law or in fact to sign is acceptable when the claimant is 
unavailable to sign. The signatures of the administrator or executor of 
the estate, appointed by a court of competent jurisdiction or authorized 
by local law, are required. The signatures of all adult beneficiaries, 
acknowledging the settlement, should be obtained unless permission is 
given by Commander USARCS. Court approval must be obtained where 
required by state law. If not required by state law, the citation of the 
state statute will accompany the payment document. Additionally, all 
adult heirs will sign as acknowledging the settlement. In lieu thereof, 
where the adult heirs are not available, the estate representative will 
acknowledge that all heirs have been informed of the settlement.
    (2) Generally, only a court-appointed guardian of a minor's estate, 
or a person performing a similar function under court supervision, may 
execute a binding settlement agreement on a minor's claim. In the United 
States, the law of the state where the minor resides or is domiciled 
will determine the age of majority and the nature and type of court 
approval that is needed, if any. The age of majority is determined by 
the age at the time of settlement, not the date of filing.
    (3) For claims arising in foreign countries where the amount agreed 
upon does not exceed $2,500, the requirement to obtain a guardian may be 
eliminated. For settlements over $2,500, whether or not the claim arose 
in the United States, refer to applicable local law, including the law 
of the foreign country where the minor resides.
    (4) In claims where the claimant is an incompetent, and for whom a 
guardian has been appointed by a court of competent jurisdiction, the 
signature of the guardian must be obtained. In cases in which competence 
of the claimant appears doubtful, a written statement by the plaintiff's 
attorney and a member of the immediate family should be obtained.
    (5) Settlement agreements involving subrogated claims must be 
executed by a person authorized by the corporation or company to act in 
its behalf and accompanied by a document signed by a person authorized 
by the corporation or company to delegate execution authority.
    (6) If it is believed that the foregoing requirements are materially 
impeding settlement of the claim, bring the matter to the attention of 
the Commander USARCS for appropriate resolution.
    (e) Attorneys' fees and costs. (1) Attorneys' fees for all subparts 
in this part 536 fall under the American Rule and are payable only out 
of the up front cash in any settlement. Attorneys' fees will be stated 
separately in the settlement agreement as a sum not to exceed 20% of the 
award.
    (2) Costs are a matter to be determined solely between the attorney 
and the claimant and will not be set forth or otherwise enumerated in 
the settlement agreement.
    (f) Claims involving workers' compensation carriers. The settlement 
of a claim involving a claimant who has elected to receive workers' 
compensation benefits under local law may require the consent of the 
workers' compensation insurance carrier, and in certain jurisdictions, 
the state agency that has authority over workers' compensation awards. 
Accordingly, claims approval and settlement authorities should be aware 
of local requirements.
    (g) Claims involving multiple interests. Where two or more parties 
have an interest in the claim, obtain signatures on the settlement 
agreement from all parties. Examples are where both the subrogee and 
subrogor file a single claim for property damage, where both landlord 
and tenant file a claim for damage to real property, or when a POV is 
leased, both the lessor or lessee.
    (h) Claims involving structured settlements. All settlement 
agreements involving structured settlements will be prepared by the Tort 
Claims Division,

[[Page 226]]

USARCS, and approved by the Chief or Deputy Chief, Tort Claims Division.



Sec. 536.64  Final offers.

    (a) When claims personnel believe that a claim should be 
compromised, and after every reasonable effort has been made to settle 
at less than the amount claimed, a settlement authority will make a 
written final offer within his or her monetary jurisdiction or forward 
the claim to the authority having sufficient monetary jurisdiction, 
recommending a final offer under the applicable statute. The final offer 
notice will contain sufficient detail to outline each element of damages 
as well as discuss contributory negligence, the SOL or other reasons 
justifying a compromise offer. The offer letter should include language 
indicating that if the offer is not accepted within a named time period, 
for example, 30 or 60 days the offer is withdrawn and the claim is 
denied.
    (b) A final offer under subpart D of this part will notify the 
claimant of the right to sue, not later than six months from the 
notice's date of mailing, and of the right to request reconsideration. 
The procedures for processing a request for reconsideration are set 
forth in Sec. 536.89.
    (c) Under subparts C or F of this part, the notice will contain an 
appeal paragraph. A similar procedure will be followed in subparts E and 
H of this part. Subpart J of this part sets forth its own procedures for 
FCA final offers. The procedures for processing an appeal are set forth 
in Sec. 536.79 of this part. The letter must inform claimants of the 
following:
    (1) They must accept the offer within 60 days or appeal. The appeal 
should state a counteroffer.
    (2) The identity of the official who will act on the appeal, and the 
requirement that the appeal will be addressed to the settlement 
authority who last acted on the claim.
    (3) No form is prescribed for the appeal, but the notice of appeal 
must fully set forth the grounds for appeal or state that it is based on 
the record as it exists at the time of denial or final offer.
    (4) The appeal must be postmarked not later than 60 days after the 
date of mailing of the final notice of action. If the last day of the 
appeal period falls on a Saturday, Sunday, or legal holiday, as 
specified in Rule 6a of the Federal Rules of Civil Procedure, the 
following day will be considered the final day of the appeal period.
    (d) Where a claim for the same injury falls under both subparts C 
and D of this part (the MCA and the FTCA), and the denial or final offer 
applies equally to each such claim, the letter of notification must 
advise the claimant that any suit brought on any portion of the claim 
filed under the FTCA must be brought not later than six months from the 
date of mailing of the notice of final offer and any appeal under 
subpart C of this part must be made as stated in paragraph (c) of this 
section. Further, the claimant must be advised that if suit is brought, 
action on any appeal under subpart C of this part will be held in 
abeyance pending final determination of such suit.
    (e) Upon request, the settlement authority may extend the six-month 
reconsideration or 60-day appeal period provided good cause is shown. 
The claimant will be notified as to whether the request is granted under 
the FTCA and that the request precludes the filing of suit under the 
FTCA for 6 months. Only one reconsideration is authorized. Accordingly, 
that claimant should be informed of the need to make all submissions 
timely.
     Note to Sec. 536.64: For further discussion see DA Pam 27-162, 
paragraph 2-74.



Sec. 536.65  Denial notice.

    (a) Where there is no reasonable basis for compromise, a settlement 
authority will deny a claim within his or her monetary jurisdiction or 
forward the claim recommending denial to the settlement authority that 
has jurisdiction. The denial notice will contain instructions on the 
right to sue or request reconsideration. The notice will state the basis 
for denial. No admission of liability will be made. A notice to an 
unrepresented claimant should detail the basis for denial in lay 
language sufficient to permit an informed decision as to whether to 
request appeal or reconsideration. In the interest of deterring 
reconsideration, appeal or suit, a denial notice may be releasable under

[[Page 227]]

the Federal Rules of Civil Procedure or by the work product documents 
doctrine.
    (b) Regardless of the claim's nature or the statute under which it 
may be considered, letters denying claims on jurisdictional grounds that 
are valid, certain, and not easily overcome (and for this reason no 
detailed investigation as to the merits of the claim was conducted), 
must state that denial on such grounds is not to be construed as an 
opinion on the merits of the claim or an admission of liability. In 
medical malpractice claims, the denial should state that the file is 
being referred to U.S. Army Medical Command for review. If sufficient 
factual information exists to make a tentative ruling on the merits of 
the claim, liability may be expressly denied.
     Note to Sec. 536.65: See Sec. 536.53, on denying a claim for 
failure to substantiate. In addition, the procedures and rules in DA Pam 
27-162, paragraph 2-69, settlement and approval authority, apply equally 
to the denial of claims. See also DA Pam 27-162, paragraph 2-75.



Sec. 536.66  The ``Parker'' denial.

    (a) When suit is filed before final action is taken on a subpart D 
of this part claim, a denial letter will be issued only upon request of 
DOJ or the trial attorney. If suit is filed prematurely or in error, the 
claimant may be requested to withdraw the suit without prejudice. Such a 
request must be coordinated with the trial attorney.
    (b) Claimants who have filed companion claims should be notified 
that, due to suit being filed, no action can be taken pending the 
outcome of suit and they may file suit if they wish.
     Note to Sec. 536.66: For further discussion see DA Pam 27-162, 
paragraph 2-76.



Sec. 536.67  Mailing procedures.

    Thirty or sixty day letters seeking information from claimants, 
final offers and denial notices are time-sensitive as they require a 
claimant to take additional action within certain time limits. 
Accordingly, follow procedures to ensure that the date of mailing and 
receipt of a request for reconsideration are documented. Use certified 
mail with return receipt requested (or registered mail, if being sent to 
a foreign country other than by the military postal system) to mail such 
notices. Upon receipt, an appeal or request for reconsideration will be 
date-time stamped, logged in, and acknowledged as set forth in Sec. 
536.68.
     Note to Sec. 536.67: See also AR 27-20, paragraph 13-5, and DA Pam 
27-162, paragraph 2-77.



Sec. 536.68  Appeal or reconsideration.

    (a) An appeal or a request for reconsideration will be acknowledged 
in writing. A request for reconsideration under subpart D of this part 
invokes the six-month period during which suit cannot be filed, 28 CFR 
14.9(b). The acknowledgment letter will underscore this restriction.
    (b) Where the contents of the appeal or request for reconsideration 
indicate, additional investigation will be conducted and the original 
action changed if warranted. Except for subpart J of this part, which 
sets forth separate rules for FCCs, if the relief requested is not 
warranted the settlement authority will forward the claim to a higher 
settlement authority with a claims memorandum of opinion (see Sec. 
536.62) stating the reasons why the request is invalid.
     Note to Sec. 536.68: See also DA Pam 27-162, paragraph 2-78.



Sec. 536.69  Retention of file.

    After final action has been taken, the settlement authority will 
retain the file until at least one month after either the period of 
filing suit or the appeal has expired and until all data has been 
entered into the database. A paid claim file will be retained until 
final action has been taken on all other claims arising out of the same 
incident. If any single claim arising out of the same incident must be 
forwarded to higher authority for final action, all claims files for 
that incident will be forwarded at the same time. For further discussion 
see DA Pam 27-162, paragraph 2-79.



Sec. 536.70  Preparation and forwarding of payment vouchers.

    (a) An unrepresented claimant will be listed as the sole payee. 
Joint claimants will not be listed since settlement agreements must 
specify the amount payable to each claimant individually

[[Page 228]]

and each must be issued a separate check.
    (b) When a claimant is represented by an attorney, only one payment 
voucher will be issued with the claimant and the attorney as joint 
payees. The payment will be sent to the office of the claimant's 
attorney. The attorney of record, either an individual or firm 
designated by the claimant, will be the co-payee. If claimant has been 
represented by other attorneys in the same claim, such attorneys will 
not be listed as payees, even if they have a lien. Satisfaction of any 
such fee will be a matter between the claimant and such attorney. If 
payment is made by electronic transfer, the funds will be paid into the 
account of the claimant. However, if requested, the payment may be made 
into the attorney's escrow account provided the claimant has provided 
written authorization.
    (c) In a structured settlement the structured settlement broker will 
be the sole payee, who is authorized to issue checks for the amounts set 
forth in the settlement agreement. The up-front cash payment may be 
deposited into an escrow account established for the benefit of the 
claimant.
    (d) If a claimant is a minor or has been declared incompetent by a 
court or other authority authorized to do so, payment will be made to 
the court-appointed guardian of the minor or incompetent, at a financial 
institution approved by the court approving the settlement.
    (e) If the claimant is representing a deceased's estate on a 
wrongful death claim, or a survival action on behalf of the deceased, 
the payment will be made to the court-appointed representative of the 
estate. No payment will be made directly to the estate.
     Note to Sec. 536.70: See also Sec. 536.63 and DA Pam 27-162, 
paragraphs 2-73 and 2-81.



Sec. 536.71  Fund sources.

    (a) 31 U.S.C. 1304 sets forth the type and limits of claims payable 
out of the Judgment Fund. Only final payments that are not payable out 
of agency funds are allowable, per the Treasury Financial Manual, Volume 
I, Part 6, Chapter 3110, at Section 3115, September 2000. Threshold 
amounts for payment from the judgment fund vary according to the subpart 
and statutes under which a claim is processed. To determine the 
threshold amount for any given payment procedure one must arrive at a 
sum of all awards for all claims arising out of that incident, including 
derivative claims. A joint amount is not acceptable. A claim for injury 
to a spouse or a child is a separate claim from one for loss of 
consortium or services by a spouse or parent. The monetary limits of 
$2,500 set forth in subpart D and $100,000 set forth in subparts C, F or 
J of this part, apply to each separate claim.
    (b) A claim for $2,500 or less arising under subpart D or E, or 
under Sec. Sec. 536.107 through 536.113 of subpart G, is paid from the 
open claims allotment (see AR 27-20 paragraph 13-6 b(1)) or, if arising 
from a project funded by a civil works appropriation, from COE civil 
works funds. The Department of the Treasury pays any settlement 
exceeding $2,500 in its entirety, from the Judgment Fund. However, if a 
subpart G of this part, Sec. Sec. 536.107 through 536.113 claim is 
treated as a noncombat activity claim, payment is made as set forth in 
paragraph (c) of this section.
    (c) The first $100,000 for each claimant on a claim settled under 
subparts C, F or J of this part is paid from the open claims allotment. 
Any amount over $100,000 is paid out of the Judgment Fund.
    (d) If not over $500,000, a claim arising under subpart H of this 
part is paid from the open claims allotment or civil works project funds 
as appropriate. A claim exceeding $500,000 is paid entirely by a 
deficiency appropriation.
    (e) AAFES or NAFI claims are paid from nonappropriated funds, except 
when such claims are subject to apportionment between appropriated and 
nonappropriated funds. See DA Pam 27-162, paragraph 2-80h.
    (f) COE claims arising out of projects not funded out of civil works 
project funds are payable from the open claims allotment not to exceed 
$2,500 for subpart D claims and $100,000 for claims arising from 
subparts C, F or J of this part and from the Judgment Fund, over such 
amounts.
     Note to Sec. 536.71: For further discussion see DA Pam 27-162, 
paragraph 2-80.

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Sec. 536.72  Finality of settlement.

    A claimant's acceptance of an award, except for an advance payment 
or a split payment for property damage only, constitutes a release of 
the United States and its employees from all liability. Where 
applicable, a release should include the ARNG or the sending State. For 
further discussion see DA Pam 27-162, paragraph 2-82.



        Subpart C_Claims Cognizable Under the Military Claims Act



Sec. 536.73  Statutory authority for the Military Claims Act.

    The statutory authority for this subpart is contained in the Act of 
August 10, 1956 (70A Stat. 153, 10 U.S.C. 2733), commonly referred to as 
the Military Claims Act (MCA), as amended by 90-521, September 1968 (82 
Stat. 874); Public Law 90-522, September 1968 (82 Stat. 875); Public Law 
90-525, September 1968 (82 Stat. 877); Public Law 93-336, July 8, 1974 
(88 Stat. 291); Public Law 98-564, October 1984, (98 Stat. 2918); and 
Public Law 103-337, October 1994 (108 Stat. 2664).



Sec. 536.74  Scope for claims under the Military Claims Act.

    (a) The guidance set forth in this subpart applies worldwide and 
prescribes the substantive bases and special procedural requirements for 
the settlement of claims against the United States for death or personal 
injury, or damage to, or loss or destruction of, property:
    (1) Caused by military personnel or civilian employees (enumerated 
in Sec. 536.23(b)) acting within the scope of their employment, except 
for non-federalized Army National Guard soldiers as explained in subpart 
F of this part; or
    (2) Incident to the noncombat activities of the armed services (see 
AR 27-20, Glossary).
    (b) A tort claim arising in the United States, its commonwealths, 
territories, and possessions may be settled under this subpart if the 
Federal Tort Claims Act (FTCA) does not apply to the type of claim under 
consideration or if the claim arose incident to noncombat activities. 
For example, a claim by a service member for property loss or damage 
incident to service may be settled if the loss arises from a tort and is 
not payable under AR 27-20, Chapter 11.
    (c) A tort claim arising outside the United States may be settled 
under this subpart only if the claimant has been determined to be an 
inhabitant (normally a resident) of the United States at the time of the 
incident giving rise to the claim. See Sec. 536.136(b).



Sec. 536.75  Claims payable under the Military Claims Act.

    (a) General. Unless otherwise prescribed, a claim for personal 
injury, death, or damage to, or loss or destruction of, property is 
payable under this subpart when:
    (1) Caused by an act or omission of military personnel or civilian 
employees of the DA or DOD, acting within the scope of their employment, 
that is determined to be negligent or wrongful; or
    (2) Incident to the noncombat activities of the armed services.
    (b) Property. Property that may be the subject of claims for loss or 
damage under this subpart includes:
    (1) Real property used and occupied under lease (express, implied, 
or otherwise). See Sec. 536.34(m) and paragraph 2-15m of DA Pam 27-162.
    (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.
    (3) Registered or insured mail in the DA's possession, even though 
the loss was caused by a criminal act.
    (4) Property of a member of the armed forces that is damaged or lost 
incident to service, if such a claim is not payable as a personnel claim 
under AR 27-20, chapter 11.
    (c) Maritime claims. Claims that arise on the high seas or within 
the territorial waters of a foreign country are payable unless settled 
under subpart H of this part.



Sec. 536.76  Claims not payable under the Military Claims Act.

    (a) Those resulting wholly from the claimant's or agent's negligent 
or wrongful act. (See Sec. 536.77(a)(1)(i) on contributory negligence.)

[[Page 230]]

    (b) Claims arising from private or domestic obligations rather than 
from government transactions.
    (c) Claims based solely on compassionate grounds.
    (d) A claim for any item, the acquisition, possession, or 
transportation of which was in violation of DA directives, such as 
illegal war trophies.
    (e) Claims for rent, damage, or other payments involving the 
acquisition, use, possession or disposition of real property or 
interests therein by and for the Department of the Army (DA) or 
Department of Defense (DOD). See Sec. 536.34(m) and paragraph 2-15m of 
DA Pam 27-162.
    (f) Claims not in the best interests of the United States, contrary 
to public policy, or otherwise contrary to the basic intent of the 
governing statute (10 U.S.C. 2733); for example, claims for property 
damage or loss or personal injury or death of inhabitants of unfriendly 
foreign countries or individuals considered to be unfriendly to the 
United States. When a claim is considered not payable for the reasons 
stated in this section, it will be forwarded for appropriate action to 
the Commander USARCS, with the recommendations of the responsible claims 
office.
    (g) Claims presented by a national, or a corporation controlled by a 
national, of a country at war or engaged in armed conflict with the 
United States, or any country allied with such enemy country unless the 
appropriate settlement authority 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 from bringing an 
otherwise payable claim for damage, loss, or destruction of personal 
property in the custody of the government.
    (h) A claim for damages or injury, which a receiving State should 
adjudicate and pay under an international agreement, unless a consistent 
and widespread alternative process of adjudicating and paying such 
claims has been established within the receiving State. See DA Pam 27-
162, paragraph 3-4a, for further discussion of the conditions of waiver.
    (i) Claims listed in Sec. Sec. 536.42, 536.43, 536.44, 536.45, and 
536.46 of this part, except for the exclusion listed in Sec. 536.45(k). 
Additionally, the exclusions in Sec. 536.45(a), (b), (e) and (k) do not 
apply to a claim arising incident to noncombat activities.
    (j) Claims based on strict or absolute liability and similar 
theories.
    (k) Claims payable under subparts D or J of this part, or under AR 
27-20, chapter 11.
    (l) Claims involving DA vehicles covered by insurance in accordance 
with requirements of a foreign country unless coverage is exceeded or 
the insurer is bankrupt. When an award is otherwise payable and an 
insurance settlement is not reasonably available, a field claims office 
should request permission from the Commander USARCS to pay the award, 
provided that an assignment of benefits is obtained.



Sec. 536.77  Applicable law for claims under the Military Claims Act.

    (a) General principles--(1) Tort claims excluding claims arising out 
of noncombat activities. (i) In determining liability, such claims will 
be evaluated under general principles of law applicable to a private 
individual in the majority of American jurisdictions, except where the 
doctrine of contributory negligence applies. The MCA requires that 
contributory negligence be interpreted and applied according to the law 
of the place of the occurrence, including foreign (local) law for claims 
arising in foreign countries (see 10 U.S.C. 2733(b)(4)).
    (ii) Claims are cognizable when based on those acts or omissions 
recognized as tortious by a majority of jurisdictions that require proof 
of duty, negligence, and proximate cause resulting in compensable injury 
or loss subject to the exclusions set forth at Sec. 536.76. Strict or 
absolute liability and similar theories are not grounds for liability 
under this subpart.
    (2) Tort claims arising out of noncombat activities. Claims arising 
out of noncombat activities under Sec. Sec. 536.75(a)(2) and (b) are 
not tort claims and require only proof of causation. However, the 
doctrine of contributory negligence will apply, to the extent set forth 
in 10 U.S.C. 2733(b)(4) and paragraph (a)(1)(i) of this section.
    (3) Principles applicable to all subpart C claims. (i) 
Interpretation of meanings

[[Page 231]]

and construction of questions of law under the MCA will be determined in 
accordance with federal law. The formulation of binding interpretations 
is delegated to the Commander USARCS, provided that the statutory 
provisions of the MCA are followed.
    (ii) Scope of employment will be determined in accordance with 
federal law. Follow guidance from reported FTCA cases. The formulation 
of a binding interpretation is delegated to the Commander USARCS, 
provided the statutory provisions of the MCA are followed.
    (iii) The collateral source doctrine is not applicable.
    (iv) The United States will only be liable for the portion of loss 
or damage attributable to the fault of the United States or its 
employees. Joint and several liability is inapplicable.
    (v) No allowance will be made for court costs, bail, interest, 
inconvenience or expenses incurred in connection with the preparation 
and presentation of the claim.
    (vi) Punitive or exemplary damages are not payable.
    (vii) Claims for negligent infliction of emotional distress may only 
be entertained when the claimant suffered physical injury arising from 
the same incident as the claim for emotional distress, or the claimant 
is the immediate family member of an injured party/decedent, was in the 
zone of danger and manifests physical injury for the emotional distress. 
Claims for intentional infliction of emotional distress will be 
evaluated under general principles of American law as set forth in 
paragraph (a)(1)(i) of this section and will be considered as an element 
of damages under paragraph (b)(3)(ii) of this section. Claims for either 
negligent or intentional infliction of emotional distress are excluded 
when they arise out of assault, battery, false arrest, false 
imprisonment, malicious prosecution, abuse of process, libel, or 
slander, as defined in Sec. 536.45(h).
    (viii) In a claim for personal injury or wrongful death, the total 
award for non-economic damages to any direct victim and all persons, 
including those derivative to the claim, who claim injury by or through 
that victim will not exceed $500,000. However, separate claims for 
emotional distress considered under paragraph (b)(1) of this section are 
not subject to the $500,000 cap for the wrongful death claim as they are 
not included in the wrongful death claim; rather, each is a separate 
claim with its own $500,000 cap under paragraph (b)(3)(ii) of this 
section. Continuous or repeated exposure to substantially the same or 
similar harmful activity or conditions is treated as one incident for 
the purposes of determining the extent of liability. If the claim 
accrued prior to September 1, 1995, these limitations do not apply. Any 
such limitation in the law of the place of occurrence will apply.
    (b) Personal injury claims--(1) Eligible claimants. Only the 
following may claim:
    (i) Persons who suffer physical injuries or intentional emotional 
distress, but not subrogees (when claiming property loss or damage, 
medical expenses or lost earnings); see paragraph (a)(3)(iii) of this 
section.
    (ii) Spouses for loss of consortium, but not parent-child or child-
parent loss of consortium;
    (iii) Members of the immediate family who were in the zone of danger 
of the injured person as defined in paragraph (a)(3)(vii) of this 
section.
    (2) Economic damages. Elements of economic damage are limited to the 
following:
    (i) Past expenses, including medical, hospital and related expenses 
actually incurred. Nursing and similar services furnished gratuitously 
by a family member are compensable. Itemized bills or other suitable 
proof must be furnished. Expenses paid by, or recoverable from, 
insurance or other sources are not recoverable.
    (ii) Future medical, hospital, and related expenses. When requested, 
a medical examination is required.
    (iii) Past lost earnings as substantiated by documentation from both 
the employer and a physician.
    (iv) Loss of earning capacity and ability to perform services, as 
substantiated by acceptable medical proof. When requested, past federal 
income tax forms must be submitted for the previous five years and the 
injured person must undergo an independent medical examination (IME). 
Estimates of

[[Page 232]]

future losses must be discounted to present value at a discount rate of 
one to three percent after deducting for income taxes. When a medical 
trust providing for all future care is established, personal consumption 
may be deducted from future losses.
    (v) Compensation paid to a person for essential household services 
that the injured person can no longer provide for himself or herself. 
These costs are recoverable only to the extent that they neither have 
been paid by, nor are recoverable from, insurance.
    (3) Non-economic damages. Elements of non-economic damages are 
limited to the following:
    (i) Past and future conscious pain and suffering. This element is 
defined as physical discomfort and distress as well as mental and 
emotional trauma. Loss of enjoyment of life, whether or not it is 
discernible by the injured party, is compensable. The inability to 
perform daily activities that one performed prior to injury, such as 
recreational activities, is included in this element. Supportive medical 
records and statements by health care personnel and acquaintances are 
required. When requested, the claimant must submit to an interview.
    (ii) Emotional distress. Emotional distress under the conditions set 
forth in paragraph (a)(3)(vii) of this section.
    (iii) Physical disfigurement. This element is defined as impairment 
resulting from an injury to a person that causes diminishment of beauty 
or symmetry of appearance rendering the person unsightly, misshapen, 
imperfect, or deformed. A medical statement and photographs, documenting 
claimant's condition, may be required.
    (iv) Loss of consortium. This element is defined as conjugal 
fellowship of husband and wife and the right of each to the company, 
society, cooperation, and affection of the other in every conjugal 
relation.
    (c) Wrongful death claims. The law of the place of the incident 
giving rise to the claim will apply to claims arising in the United 
States, its commonwealths, territories or possessions.
    (1) Claimant. (i) Only one claim may be presented for a wrongful 
death. It shall be presented by the decedent's personal representative 
on behalf of all parties in interest. The personal representative must 
be appointed by a court of competent jurisdiction prior to any 
settlement and must agree to make distribution to the parties in 
interest under court jurisdiction, if required.
    (ii) Parties in interest are the surviving spouse, children, or 
dependent parents to the exclusion of all other parties. If there is no 
surviving spouse, children, or dependent parents, the next of kin will 
be considered a party or parties in interest. A dependent parent is one 
who meets the criteria set forth by the Internal Revenue Service to 
establish eligibility for a DOD identification card.
    (2) Economic loss. Elements of economic damages are limited to the 
following:
    (i) Loss of monetary support of a family member from the date of 
injury causing death until expiration of decedent's worklife expectancy. 
When requested, the previous five years federal income tax forms must be 
submitted. Estimates must be discounted to present value at one to three 
percent after deducting for taxes and personal consumption. Loss of 
retirement benefits is compensable and similarly discounted after 
deductions.
    (ii) Loss of ascertainable contributions, such as money or gifts to 
other than family member claimants as substantiated by documentation or 
statements from those concerned.
    (iii) Loss of services from date of injury to end of life expectancy 
of the decedent or the person reasonably expected to receive such 
services, whichever is shorter.
    (iv) Expenses as set forth in paragraph (b)(2)(i) of this section. 
In addition, burial expenses are allowable. Expenses paid by, or 
recoverable from, insurance or other sources are not recoverable.
    (3) Non-economic loss. Elements of damages are limited to the 
following:
    (i) Pre-death conscious pain and suffering.
    (ii) Loss of companionship, comfort, society, protection, and 
consortium suffered by a spouse for the death of a spouse, a child for 
the death of a parent, or a parent for the death of a child.

[[Page 233]]

    (iii) Loss of training, guidance, education, and nurture suffered by 
a child under the age of 18 for the death of a parent, until the child 
becomes 18 years old.
    (iv) Claims for the survivors' emotional distress, mental anguish, 
grief, bereavement, and anxiety are not payable, in particular claims 
for intentional or negligent infliction of emotional distress to 
survivors arising out of the circumstances of a wrongful death are 
personal injury claims falling under Sec. 536.77(b)(3).
    (d) Property damage claims. The following provisions apply to all 
claims arising in the United States, its commonwealths, territories and 
possessions.
    (1) Such claims are limited to damage to, or loss of, tangible 
property and costs directly related thereto. Consequential damages are 
not included. (See Sec. 536.50(e) and DA Pam 27-162, paragraph 2-56a.)
    (2) Proper claimants are described in Sec. 536.27. Claims for 
subrogation are excluded. (See Sec. 536.27(e)). However, there is no 
requirement that the claimant use personal casualty insurance to 
mitigate the loss.
    (3) Allowable elements of damages and measure of proof (additions to 
these elements are permissible with concurrence of the Commander 
USARCS). These elements are discussed in detail in DA Pam 27-162, 
paragraph 2-54.
    (i) Damages to real property.
    (ii) Damage to or loss of personal property, or personal property 
that is not economically repairable.
    (iii) Loss of use.
    (iv) Towing and storage charges.
    (v) Loss of business or profits.
    (vi) Overhead.



Sec. 536.78  Settlement authority for claims under the Military Claims Act.

    (a) Authority of the Secretary of the Army. The Secretary of the 
Army, the Army General Counsel, as the Secretary's designee, or another 
designee of the Secretary of the Army may approve settlements in excess 
of $100,000.
    (b) Delegations of Authority. (1) Denials and final offers made 
under the delegations set forth herein are subject to appeal to the 
authorities specified in paragraph (d) of this section.
    (2) The Judge Advocate General (TJAG) and the Assistant Judge 
Advocate General (TAJAG) are delegated authority to pay up to $100,000 
in settlement of a claim and to disapprove a claim regardless of the 
amount claimed.
    (3) The Commander USARCS is delegated authority to pay up to $25,000 
in settlement of a claim and to disapprove or make a final offer in a 
claim regardless of the amount claimed.
    (4) The Judge Advocate (JA) or Staff Judge Advocate (SJA), subject 
to limitations that USARCS may impose, and chiefs of a command claims 
service are delegated authority to pay up to $25,000 in settlement, 
regardless of the amount claimed, and to disapprove or make a final 
offer in a claim presented in an amount not exceeding $25,000.
    (5) A head of an area claims office (ACO) is delegated authority to 
pay up to $25,000 in settlement of a claim, regardless of the amount 
claimed, and to disapprove or make a final offer in a claim presented in 
an amount not exceeding $25,000. A head of a claims processing office 
(CPO) with approval authority is delegated authority to approve, in full 
or in part, claims presented for $5,000 or less, and to pay claims 
regardless of the amount claimed, provided an award of $5,000 or less is 
accepted in full satisfaction of the claim.
    (6) Authority to further delegate payment authority is set forth in 
Sec. 536.3(g)(1) of this part. For further discussions also related to 
approval, settlement and payment authority see also paragraph 2-69 of DA 
Pam 27-162.
    (c) Settlement of multiple claims arising from a single incident. 
(1) Where a single act or incident gives rise to multiple claims 
cognizable under this subpart, and where one or more of these claims 
apparently cannot be settled within the monetary jurisdiction of the 
authority initially acting on them, no final offer will be made. All 
claims will be forwarded, along with a recommended disposition, to the 
authority who has monetary jurisdiction over the largest claim for a 
determination

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of liability. However, where each individual claim, including derivative 
claims, can be settled within the monetary authority initially acting on 
them, and none are subject to denial, all such claims may be settled 
even though the total amount exceeds the monetary jurisdiction of the 
approving or settlement authority.
    (2) If such authority determines that federal liability is 
established, he or she may return claims of lesser value to the field 
claims office for settlement within that office's jurisdiction. The 
field claims office must take care to avoid compromising the higher 
authority's discretion by conceding liability in claims of lesser 
amount.
    (d) Appeals. Denials or final offers on claims described as follows 
may be appealed to the official designated:
    (1) For claims presented in an amount over $100,000, final decisions 
on appeals will be made by the Secretary of the Army or designee.
    (2) For claims presented for $100,000 or less, and any denied claim, 
regardless of the amount claimed, in which the denial was based solely 
upon an incident-to-service bar, exclusionary language in a federal 
statute governing compensation of federal employees for job-related 
injuries (see Sec. 536.44), or untimely filing, TJAG or TAJAG will 
render final decisions on appeals, except that claims presented for 
$25,000 or less, and not acted upon by the Commander USARCS, are 
governed by paragraph (d)(3) of this section.
    (3) For claims presented for $25,000 or less, final decisions on 
appeals will be made by the Commander USARCS, his or her designee, or 
the chief of a command claims service when such claims are acted on by 
an ACO under such service's jurisdiction.
    (4) Sections 536.64, 536.65, and 536.66 of this part set forth the 
rules relating to the notification of appeal rights and processing.
    (e) Delegated authority. Authority delegated by this section will 
not be exercised unless the settlement or approval authority has been 
assigned an office code.



Sec. 536.79  Action on appeal under the Military Claims Act.

    (a) The appeal will be examined by the settlement authority who last 
acted on the claim, or his or her successor, to determine if the appeal 
complies with the requirements of this regulation. The settlement 
authority will also examine the claim file and decide whether additional 
investigation is required; ensure that all allegations or evidence 
presented by the claimant, agent, or attorney are documented; and ensure 
that all pertinent evidence is included. If claimants state that they 
appeal, but do not submit supporting materials within the 60-day appeal 
period or an approved extension thereof, these appeals will be 
determined on the record as it existed at the time of denial or final 
offer. Unless action under paragraph (b) of this section is taken, the 
claim and complete investigative file, including any additional 
investigation, and a tort claims memorandum will be forwarded to the 
appropriate appellate authority for necessary action on the appeal.
    (b) If the evidence in the file, including information submitted by 
the claimant with the appeal and that found by any necessary additional 
investigation, indicates that the appeal should be granted in whole or 
in part, the settlement authority who last acted on the claim, or his or 
her successor, will attempt to settle the claim. If a settlement cannot 
be reached, the appeal will be forwarded in accordance with paragraph 
(a) of this section.
    (c) As to an appeal that requires action by TJAG, TAJAG, or the 
Secretary of the Army or designee, the Commander USARCS may take the 
action in paragraph (b) of this section or forward the claim together 
with a recommendation for action. All matters submitted by the claimant 
will be forwarded and considered.
    (d) Since an appeal under this subpart is not an adversarial 
proceeding, no form of hearing is authorized. A request by the claimant 
for access to documentary evidence in the claim file to be used in 
considering the appeal will be granted unless law or regulation does not 
permit access.

[[Page 235]]

    (e) If the appellate authority upholds a final offer or authorizes 
an award on appeal from a denial of a claim, the notice of the appellate 
authority's action will inform the claimant that he or she must accept 
the award within 180 days of the date of mailing of the notice of the 
appellate authority's action or the award will be withdrawn, the claim 
will be deemed denied, and the file will be closed without future 
recourse.



Sec. 536.80  Payment of costs, settlements, and judgments related to certain medical malpractice claims.

    (a) General. Costs, settlements, or judgments cognizable under 10 
U.S.C. 1089(f) for personal injury or death caused by any physician, 
dentist, nurse, pharmacist, paramedic, or other supporting personnel 
(including medical and dental technicians, nurse assistants, therapists, 
and Red Cross volunteers of the Army Medical Department (AMEDD), AMEDD 
personnel detailed for service with other than a federal department, 
agency, or instrumentality and direct contract personnel identified in 
the contract as federal employees), will be paid provided that:
    (1) The alleged negligent or wrongful actions or omissions occurred 
during the performance of medical, dental, or related health care 
functions (including clinical studies and investigations) while the 
medical or health care employee was acting within the scope of 
employment.
    (2) Such personnel furnish prompt notification and delivery of all 
process served or received and other documents, information, and 
assistance as requested.
    (3) Such personnel cooperate in the defense of the action on its 
merits.
    (b) Requests for contribution or indemnification. All requests for 
contribution or indemnification under this section should be forwarded 
to the Commander USARCS for action, following the procedures set forth 
in this subpart.



Sec. 536.81  Payment of costs, settlements, and judgments related to certain legal malpractice claims.

    (a) General. Costs, settlements, and judgments cognizable under 10 
U.S.C. 1054(f) for damages for personal injury or loss of property 
caused by any attorney, paralegal, or other member of a legal staff will 
be paid if:
    (1) The alleged negligent or wrongful actions or omissions occurred 
during the provision or performance of legal services while the attorney 
or legal employee was acting within the scope of duties or employment;
    (2) Such personnel furnish prompt notification and delivery of all 
process served or received and other documents, information, and 
assistance as requested;
    (3) Such personnel cooperate in the defense of the action on the 
merits.
    (b) Requests for contribution or indemnification. All requests for 
contribution or indemnification under this section should be forwarded 
to the Commander USARCS, for action, following the procedures set forth 
in this subpart.



Sec. 536.82  Reopening an MCA claim after final action by a settlement authority.

    (a) Original approval or settlement authority (including TAJAG, 
TJAG, Secretary of the Army, or the Secretary's designees). (1) An 
original settlement authority may reconsider the denial of, or final 
offer on, a claim brought under the MCA upon request of the claimant or 
the claimant's authorized agent. In the absence of such a request, the 
settlement authority may on his or her initiative reconsider a claim.
    (2) An original approval or settlement authority may reopen and 
correct action on an MCA claim previously settled in whole or in part 
(even if a settlement agreement has been executed) when it appears that 
the original action was incorrect in law or fact based on the evidence 
of record at the time of the action or subsequently received. For errors 
in fact, the new evidence must not have been discoverable at the time of 
final action by either the Army or the claimant through the exercise of 
reasonable diligence. Corrective action may also be taken when an error 
contrary to the parties' mutual understanding is discovered in the 
original action. If the settlement or approval authority determines that 
their original action was incorrect, they will modify the action and, if 
appropriate, make a supplemental payment. The basis for a

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change in action will be stated in a memorandum included in the file. 
For example, a claim was settled for $15,000, but the settlement 
agreement was typed to read ``$1,500'' and the error is not discovered 
until the file is being prepared for payment. If appropriate, a 
corrected payment will be made. A settlement authority who has reason to 
believe that a settlement was obtained by fraud on the part of the 
claimant or claimant's legal representative, will reopen action on that 
claim and, if the belief is substantiated, correct the action. The basis 
for correcting an action will be stated in a memorandum and included in 
the file.
    (b) A successor approval or settlement authority (including TAJAG, 
TJAG, Secretary of the Army, or the Secretary's designees)--(1) 
Reconsideration. A successor approval or settlement authority may 
reconsider the denial of, or final offer on, an MCA claim upon request 
of the claimant or the claimant's authorized agent only on the basis of 
fraud, substantial new evidence, errors in calculation, or mistake 
(misinterpretation) of law.
    (2) Settlement correction. A successor approval or settlement 
authority may reopen and correct a predecessor's action on a claim that 
was previously settled in whole or in part for the same reasons that an 
original authority may do so.
    (c) Time requirement for filing request for reconsideration. 
Requests postmarked more than five years from the date of mailing of 
final notice will be denied based on the doctrine of laches.
    (d) Finality of action. Action by the appropriate authority (either 
affirming the prior action or granting full or granting full or partial 
relief) is final under the provisions of 10 U.S.C. 2735. Action upon a 
request for reconsideration constitutes final administrative disposition 
of a claim. No further requests for reconsideration will be allowed 
except on the basis of fraud.



      Subpart D_Claims Cognizable Under the Federal Tort Claims Act



Sec. 536.83  Statutory authority for the Federal Tort Claims Act.

    The statutory authority for this subpart is the Federal Tort Claims 
Act (FTCA) (60 Stat. 842, 28 U.S.C. 2671-2680), as amended by Public Law 
89-506, July 1966 (80 Stat. 306); Public Law 93-253, March 1974 (88 
Stat. 50); Public Law 97-124, December 1981 (93 Stat. 1666); Public Law 
100-694, November 1988 (102 Stat. 4563-67); and Public Law 101-552, 
November 1996 (104 Stat. 734); and as implemented by the Attorney 
General's Regulations (28 CFR 14.1-14.11 and its appendix), all of which 
are posted on the USARCS Web site; for the address see Sec. 536.2(a).



Sec. 536.84  Scope for claims under the Federal Tort Claims Act.

    (a) General. This subpart applies in the United States, its 
commonwealths, territories and possessions (all hereinafter collectively 
referred to as United States or U.S.). It prescribes the substantive 
bases and special procedural requirements under the FTCA and the 
implementing Attorney General's regulations for the administrative 
settlement of claims against the United States based on death, personal 
injury, or damage to, or loss of, property caused by negligent or 
wrongful acts or omissions by the United States or its employees acting 
within the scope of their employment. If a conflict exists between this 
part and the Attorney General's regulations, the latter governs.
    (b) Effect of the Military Claims Act. A tort claim arising in the 
United States, its commonwealths, territories, and possessions may be 
settled under subpart C of this part if the Federal Tort Claims Act 
(FTCA) does not apply to the type of claim under consideration or if the 
claim arose incident to noncombat activities. If a claim is filed under 
both the FTCA and the Military Claims Act (MCA), or when both statutes 
apply equally, final action thereon will follow the procedures set forth 
in DA Pam 27-162, paragraphs 2-74 through 2-76, discussing final offers 
and denial letters.



Sec. 536.85  Claims payable under the Federal Tort Claims Act.

    (a) Unless otherwise prescribed, claims for death, personal injury, 
or damage to, or loss of, property (real or personal) are payable under 
this subpart when the injury or damage is

[[Page 237]]

caused by negligent or wrongful acts or omissions of military personnel 
or civilian employees of the Department of the Army or Department of 
Defense while acting within the scope of their employment under 
circumstances in which the United States, if a private person, would be 
liable to the claimant in accordance with the law of the place where the 
act or omission occurred. The FTCA is a limited waiver of sovereign 
immunity without which the United States may not be sued in tort. 
Similarly, neither the Fifth Amendment nor any other provision of the 
U.S. Constitution creates or permits a federal cause of action allowing 
recovery in tort. Immunity must be expressly waived, as the FTCA waives 
it.
    (b) To be payable, a claim must arise from the acts or omissions of 
an ``employee of the government'' under 28 U.S.C. 2671. Categories of 
such employees are listed in Sec. 536.23(b) of this part.



Sec. 536.86  Claims not payable under the Federal Tort Claims Act.

    A claim is not payable if it is identified as an exclusion in DA Pam 
27-162, paragraphs 2-36 through 2-43.



Sec. 536.87  Applicable law for claims under the Federal Tort Claims Act.

    The applicable law for claims falling under the Federal Tort Claims 
Act is set forth in Sec. Sec. 536.41 through 536.52.



Sec. 536.88  Settlement authority for claims under the Federal Tort Claims Act.

    (a) General. Subject to the Attorney General's approval of payments 
in excess of $200,000 for a single claim, or if the total value of all 
claims and potential claims arising out of a single incident exceeds 
$200,000 (for which USARCS must write an action memorandum for 
submission to the Department of Justice), the following officials are 
delegated authority to settle (including payment in full or in part, or 
denial) and make final offers on claims under this subpart:
    (1) The Judge Advocate General (TJAG);
    (2) The Assistant Judge Advocate General (TAJAG); and
    (3) The Commander USARCS.
    (b) ACO heads. A head of an area claims office (ACO) is delegated 
authority to pay up to $50,000 in settlement of a claim, regardless of 
the amount claimed, and to disapprove or make a final offer in a claim 
presented in an amount not exceeding $50,000, provided the value of all 
claims and potential claims arising out of a single incident does not 
exceed $200,000.
    (c) CPO heads. A head of a claims processing office (CPO) with 
approval authority is delegated authority to approve, in full or in 
part, claims presented for $5,000 or less, and to pay claims regardless 
of amount, provided an award of $5000 or less is accepted in full 
satisfaction of the claim.
    (d) Further guidance. Authority to further delegate payment 
authority is set forth in Sec. 536.3(g)(1) of this part. For further 
discussions related to approval, settlement and payment authority, see 
paragraphs 2-69 and 2-71 of DA Pam 27-162.
    (e) Settlement of multiple claims from a single incident. (1) Where 
a single act or incident gives rise to multiple claims cognizable under 
this subpart, and where one claim cannot be settled within the monetary 
jurisdiction for one claim of the authority acting on the claim or all 
claims cannot be settled within the monetary jurisdiction for a single 
incident, no final offer will be made. All claims will be forwarded, 
along with a recommended disposition, to the Commander USARCS.
    (2) If the Commander USARCS determines that all claims can be 
settled for a total of $200,000 or less, he may return claims to the 
field office for settlement. If the Commander USARCS, determines that 
all claims cannot be settled for a total of $200,000, he must request 
Department of Justice authority prior to settlement of any one claim. 
The field claims office must not concede liability by paying any one 
claim of lesser value.



Sec. 536.89  Reconsideration of Federal Tort Claims Act claims.

    (a) Reconsideration of paid claims. Under the provision of 28 U.S.C. 
2672, neither an original or successor authority may reconsider a claim 
which has been paid except as expressly set forth below. Payment of an 
amount for

[[Page 238]]

property damage will bar payment for personal injury or death except for 
a split claim provided the provisions of Sec. 536.60 are followed. 
Supplemental payments for either property or injury are barred by 10 
U.S.C. 2672. Accordingly, claimants will be informed that only one claim 
or payment is permitted.
    (b) Notice of right to reconsideration. Notice of disapproval or 
final offer issued by an authority listed in Sec. 536.88(b) will advise 
the claimant of a right to reconsideration to be submitted in writing 
not later than six months from the date of mailing the notice. Such a 
request will suspend the requirement to bring suit for a minimum of six 
month or until action is taken on the request. The claimant will be so 
informed. See the Attorney General's Regulations at 28 CFR 14.9(b), 
posted on the USARCS Web site; for the address see Sec. 536.2(a).
    (c) Original approval or settlement authority--(1) Reconsideration. 
An original settlement authority may reconsider the denial of, or final 
offer on, a claim brought under the FTCA upon request of the claimant or 
the legal representative.
    (2) Settlement correction. An original approval or settlement 
authority may reopen and correct action on a claim previously settled in 
whole or in part (even if a settlement agreement has been executed) when 
an error contrary to the parties' mutual understanding is discovered in 
the original action. For example: a claim was settled for $15,000, but 
the settlement agreement was typed to read ``$1,500'' and the error is 
not discovered until the file is being prepared for payment. If 
appropriate, a corrected payment will be made. An approval or settlement 
authority who has reason to believe that a settlement was obtained by 
fraud on the part of the claimant or claimant's legal representative 
will reopen action on that claim, and if the belief is substantiated, 
correct the action. The basis for correcting an action will be stated in 
a memorandum and included in the file.
    (d) A successor approval or settlement authority--(1) 
Reconsideration. A successor approval or settlement authority may 
reconsider the denial of, or final offer on, an FTCA claim upon request 
of the claimant, the claimant's authorized agent, or the claimant's 
legal representative only on the basis of fraud, substantial new 
evidence, errors in calculation, or mistake (misinterpretation) of law.
    (2) Settlement correction. A successor approval or settlement 
authority may reopen and correct a predecessor's action on a claim that 
was previously settled in whole or in part for the same reasons that an 
original authority may do so.
    (e) Requirement to forward a request for reconsideration. When full 
relief is not granted, forward all requests for reconsideration of an 
ACO's denial or final offer to the Commander USARCS for action. Include 
all investigative material and legal analyses generated by the request.
    (f) Action prior to forwarding. A request for reconsideration should 
disclose fully the legal and/or factual bases that the claimant has 
asserted as grounds for relief and provide appropriate supporting 
documents or evidence. Following completion of any investigation or 
other action deemed necessary for an informed disposition of the 
request, the approval or settlement authority will reconsider the claim 
and attempt to settle it, granting relief as warranted. When further 
settlement efforts appear unwarranted, the entire file with a memorandum 
of opinion will be forwarded to the Commander USARCS. The claimant will 
be informed of such transfer.
    (g) Finality of action. Action by the appropriate authority (either 
affirming the prior action or granting full or partial relief) upon a 
request for reconsideration constitutes final administrative disposition 
of a claim. No further requests for reconsideration will be allowed 
except on the basis of fraud. Attempted further requests for 
reconsideration on other grounds will not toll the six-month period set 
forth in 28 U.S.C. 2401(b).



       Subpart E_Claims Cognizable Under the Non-Scope Claims Act



Sec. 536.90  Statutory authority for the Non-Scope Claims Act.

    The statutory authority for this subpart is set forth in the Act of 
October

[[Page 239]]

1962, 10 U.S.C. 2737, 76 Stat. 767, commonly called the ``Non-Scope 
Claims Act (NSCA).''



Sec. 536.91  Scope for claims under the Non-Scope Claims Act.

    (a) This subpart applies worldwide and prescribes the substantive 
bases and special procedural requirements for the administrative 
settlement and payment of not more than $1,000 for any claim against the 
United States for personal injury, death or damage to, or loss of, 
property caused by military personnel or civilian employees, incident to 
the use of a U.S. vehicle at any location, or incident to the use of 
other U.S. property on a government installation, which claim is not 
cognizable under any other provision of law.
    (b) For the purposes of this subpart, a ``government installation'' 
is a facility having fixed boundaries owned or controlled by the 
government, and a ``vehicle'' includes every description of carriage or 
other artificial contrivance used, or capable of being used, as means of 
transportation on land (1 U.S.C. 4).
    (c) Any claim in which there appears to be a dispute about whether 
the employee was acting within the scope of employment will be 
considered under subparts C, D, or F of this part. Only when all 
parties, including an insurer, agree that there is no ``in scope'' issue 
will the claim be considered under this subpart.



Sec. 536.92  Claims payable under the Non-Scope Claims Act.

    (a) General. A claim for personal injury, death, or damage to, or 
loss of, property, real or personal, is payable under this subpart when:
    (1) Caused by negligent or wrongful acts or omissions of Department 
of Defense or Department of the Army (DA) military personnel or civilian 
employees, as listed in Sec. 536.23(b):
    (i) Incident to the use of a vehicle belonging to the United States 
at any place or;
    (ii) Incident to the use of any other property belonging to the 
United States on a government installation.
    (2) The claim is not payable under any other claims statute or 
regulation available to the DA for the administrative settlement of 
claims.
    (b) Personal injury or death. A claim for personal injury or death 
is allowable only for the cost of reasonable medical, hospital, or 
burial expenses actually incurred and not otherwise furnished or paid by 
the United States.
    (c) Property loss or damage. A claim for damage to or loss of 
property is allowable only for the cost of reasonable repairs or value 
at time of loss, whichever is less.



Sec. 536.93  Claims not payable under the Non-Scope Claims Act.

    Under this subpart, a claim is not payable that:
    (a) Results in whole or in part from the negligent or wrongful act 
of the claimant or his or her agent or employee. The doctrine of 
comparative negligence does not apply.
    (b) Is for medical, hospital, or burial expenses furnished or paid 
by the United States.
    (c) Is for any element of damage pertaining to personal injuries or 
death other than as provided in Sec. 536.93(b). All other items of 
damage, for example, compensation for loss of earnings and services, 
diminution of earning capacity, anticipated medical expenses, physical 
disfigurement and pain and suffering are not payable.
    (d) Is for loss of use of property or for the cost of substitute 
property, for example, a rental.
    (e) Is legally recoverable by the claimant under an indemnifying law 
or indemnity contract. If the claim is in part legally recoverable, the 
part recoverable by the claimant is not payable.
    (f) Is a subrogated claim.
    (g) In some circumstances some claims may be partially payable. See 
DA Pam 27-162, paragraph 5-4 for more information on claims that may be 
partially payable.



Sec. 536.94  Settlement authority for claims under the Non-Scope Claims Act.

    (a) Settlement authority. The following are delegated authority to 
pay up to

[[Page 240]]

$1,000 in settlement of each claim arising out of one incident and to 
disapprove a claim presented in any amount under this subpart:
    (1) The Judge Advocate General (TJAG);
    (2) The Assistant Judge Advocate General (TAJAG);
    (3) The Commander USARCS;
    (4) The Judge Advocate (JA) or Staff Judge Advocate (SJA) or chief 
of a command claims service; and
    (5) The head of an area claims office (ACO).
    (b) Approval authority. The head of a claims processing office (CPO) 
with approval authority is delegated authority to approve and pay, in 
full or in part, claims presented for $1,000 or less and to compromise 
and pay, regardless of amount claimed, an agreed award of $1,000 or 
less.
    (c) Further guidance. Authority to further delegate payment 
authority is set forth in Sec. 536.3(g)(1) of this part. For further 
discussions also related to approval, settlement and payment authority, 
see also paragraphs 2-69 and 2-71 of DA Pam 27-162.



Sec. 536.95  Reconsideration of Non-Scope Claims Act claims.

    The provisions of Sec. 536.89 addressing reconsideration apply and 
are incorporated herein by reference. If the claim is not cognizable 
under the Federal Tort Claims Act, appellate procedures under the 
Military Claims Act or NGCA apply.



     Subpart F_Claims Cognizable Under the National Guard Claims Act



Sec. 536.96  Statutory authority for the National Guard Claims Act.

    The statutory authority for this subpart is contained in the Act of 
September 1960 (32 U.S.C. 715, 74 Stat. 878), commonly referred to as 
the ``National Guard Claims Act'' (NGCA), as amended by Public Law 87-
212, (75 Stat. 488), September 1961; Public Law 90-486, (82 Stat. 756), 
August 1968; Public Law 90-521, (82 Stat. 874), September 1968; Public 
Law 90-525, (82 Stat. 877), September 1968; Public Law 91-312, (84 Stat. 
412), July 1970; Public Law 93-336, (88 Stat. 291), July 1974; and 
Public Law 98-564, (98 Stat. 2918), October 1984.



Sec. 536.97  Scope for claims under the National Guard Claims Act.

    This subpart applies worldwide and prescribes the substantive bases 
and special procedural regulations for the settlement of claims against 
the United States for death, personal injury, damage to, or loss or 
destruction of property.
    (a) Soldiers of the Army National Guard (ARNG) can perform military 
duty in an active duty status under the authority of Title 10 of the 
United States Code, in a full-time National Guard duty or inactive-duty 
training status under the authority of Title 32 of the United States 
Code, or in a state active duty status under the authority of a state 
code.
    (1) When ARNG soldiers perform active duty, they are under federal 
command and control and are paid from federal funds. For claims 
purposes, those soldiers are treated as active duty soldiers. The NGCA, 
32 U.S.C. 715, does not apply.
    (2) When ARNG soldiers perform full-time National Guard duty or 
inactive-duty training, they are under state command and control and are 
paid from federal funds. The NGCA does apply, but as explained in 
paragraph (c) of this section it is seldom used.
    (3) When ARNG soldiers perform state active duty, they are under 
state command and control and are paid from state funds. Federal claims 
statutes do not apply, but state claims statutes may apply.
    (b) The ARNG also employs civilians, referred to as technicians and 
employed under 32 U.S.C. 709. Technicians are usually, but not always, 
ARNG soldiers who perform the usual 15 days of annual training (a 
category of full-time duty) and 48 drills (inactive-duty training) per 
year.
    (c) NGCA coverage applies only to ARNG soldiers performing full-time 
National Guard duty or inactive-duty training and to technicians. 
However, since the NGCA's enactment in 1960, Congress has also extended 
Federal Tort Claims Act (FTCA) coverage to these personnel.

[[Page 241]]

    (1) In 1968, technicians, who were state employees formerly, were 
made federal employees. Along with federal employee status came FTCA 
coverage. Technicians no longer have any state status, albeit they are 
hired, fired, and administered by a state official, the Adjutant 
General, acting as the agent of the federal government.
    (2) In 1981, Congress extended FTCA coverage to ARNG soldiers 
performing full-time National Guard duty or inactive-duty training (such 
as any training or other duty under 32 U.S.C. 316, 502-505). Unlike 
making technicians federal employees, this extension of coverage did not 
affect their underlying status as state military personnel.
    (d) Claims arising from the negligent acts or omissions of ARNG 
soldiers performing full-time National Guard duty or inactive-duty 
training, or of technicians, will be processed under the FTCA. 
Therefore, the NGCA is generally relevant only to claims arising from 
noncombat activities or outside the United States. Additionally, claims 
by members of the National Guard may be paid for property loss or damage 
incident to service if the claim is based on activities falling under 
this subpart and is not payable under AR 27-20, chapter 11.



Sec. 536.98  Claims payable under the National Guard Claims Act.

    The provisions of Sec. 536.75 apply to claims arising under this 
subpart.



Sec. 536.99  Claims not payable under the National Guard Claims Act.

    The provisions of Sec. 536.76 apply to claims arising under this 
subpart.



Sec. 536.100  Applicable law for claims under the National Guard Claims Act.

    The provisions of Sec. 536.77 apply to claims arising under this 
subpart.



Sec. 536.101  Settlement authority for claims under the National Guard Claims Act.

    The provisions of Sec. 536.78 apply to claims arising under this 
subpart.



Sec. 536.102  Actions on appeal under the National Guard Claims Act.

    The provisions of Sec. 536.79 apply to claims arising under this 
subpart.



       Subpart G_Claims Cognizable Under International Agreements



Sec. 536.103  Statutory authority for claims cognizable under international claims agreements.

    The authority for claims presented or processed under this subpart 
is set forth in the following federal laws and bi- or multinational 
agreements:
    (a) 10 U.S.C. 2734a and 10 U.S.C. 2734b (the International 
Agreements Claims Act) as amended, for claims arising overseas under 
international agreements.
    (b) Various international agreements, such as the North Atlantic 
Treaty Organization (NATO) Status of Forces Agreement (SOFA) and the 
Partnership for Peace (PFP) SOFA.



Sec. 536.104  Current agreements in force.

    Current listings of known agreements in force are also posted on the 
USARCS Web site; for the address see Sec. 536.2(a).



Sec. 536.105  Responsibilities generally/international agreements claims.

    (a) The Commander USARCS is responsible for:
    (1) Providing policy guidance to command claims services or other 
responsible judge advocate (JA) offices on SOFA or other treaty 
reimbursement programs implementing 10 U.S.C. 2734a and 2734b.
    (2) Monitoring the reimbursement system to ensure that programs for 
the proper verification and certification of reimbursement are in place.
    (3) Monitoring funds reimbursed to or by foreign governments.
    (b) Responsibilities in the continental United States (CONUS). The 
responsibility for implementing these agreements within the United 
States has been delegated to the Secretary of the Army (SA). The SA, in 
turn, has delegated that responsibility to the Commander USARCS, who is 
in charge of the receiving State office for the United States, as 
prescribed in DODD

[[Page 242]]

5515.8. The Commander USARCS is responsible for maintaining direct 
liaison with sending State representatives and establishing procedures 
designed to carry out the provisions of this subpart.



Sec. 536.106  Definitions for international agreements claims.

    (a) Force and civilian component of force. Members of the sending 
State's armed forces on temporary or permanent official duty within the 
receiving State, civilian employees of the sending State's armed forces, 
and those individuals acting in an official capacity for the sending 
State's armed forces. However, under provisions of the applicable SOFAs 
the sending State and the receiving State may agree to exclude from the 
definition of ``force'' certain individuals, units or formations that 
would otherwise be covered by the SOFA. Where such an exclusion has been 
created, this subpart will not apply to claims arising from actions or 
omission by those individuals, units or formations. ``Force and civilian 
component of force'' also includes claims arising out of acts or 
omissions made by military or civilian personnel, regardless of 
nationality, who are assigned or attached to, or employed by, an 
international headquarters established under the provisions of the 
Protocol on the Status of International Military Headquarters Set Up 
Pursuant to the North Atlantic Treaty, dated August 28, 1952, such as 
Supreme Allied Command, Atlantic.
    (b) Types of claims under agreements--(1) Intergovernmental claims. 
Claims of one contracting party against any other contracting party for 
damage to property owned by its armed services, or for injury or death 
suffered by a member of the armed services engaged in the performance of 
official duties, are waived. Claims above a minimal amount for damage to 
property owned by a governmental entity other than the armed services 
may be asserted. NATO SOFA, Article VIII, paragraph 1-4; Singapore SOFA, 
Article XVI, paragraph 2-3.
    (2) Third-party scope claims. Claims arising out of any acts or 
omissions of members of a force or the civilian component of a sending 
State done in the performance of official duty or any other act, 
omission, or occurrence for which the sending State is legally 
responsible shall be filed, considered and settled in accordance with 
the laws and regulations of the receiving State with respect to claims 
arising from the activities of its own armed service; see, for example, 
NATO SOFA, Article VIII, paragraph 5.
    (3) Ex gratia claims. Claims arising out of tortious acts or 
omissions not done in the performance of official duties shall be 
considered by the sending State for an ``ex gratia'' payment that is 
made directly to the injured party; see, for example, NATO SOFA, Article 
VIII, paragraph 6.



Sec. 536.107  Scope for international agreements claims arising in the United States.

    This section sets forth procedures and responsibilities for the 
investigation, processing, and settlement of claims arising out of any 
acts or omissions of members of a foreign military force or civilian 
component present in the United States or a territory, commonwealth, or 
possession thereof under the provisions of cost sharing reciprocal 
international agreements which contain claims settlement provisions 
applicable to claims arising in the United States. Article VIII of the 
NATO SOFA has reciprocal provisions applying to all NATO member 
countries; the Partnership for Peace (PFP) Agreement has similiar 
provisions, as do the Singapore and Australian SOFAs.



Sec. 536.108  Claims payable under international agreements (for those arising in the United States).

    (a) Within the United States, Art. VIII, NATO SOFA applies to claims 
arising within the North Atlantic Treaty Area, which includes CONUS and 
its territories and possessions north of the Tropic of Cancer (23.5 
degrees north latitude). This excludes Puerto Rico, the Virgin Islands, 
and parts of Hawaii. Third-party scope claims are payable under subpart 
D or, if the claim arises incident to noncombat activities, under 
subpart C of this part. Maritime claims are payable under subpart H of

[[Page 243]]

this part. The provisions of these subparts on what claims are payable 
apply equally here. The members of the foreign force or civilian 
component must be acting in pursuance of the applicable treaty's 
objectives.
    (b) Within the United States, third-party ex gratia claims are 
payable only by the sending State and are not payable under subpart E of 
this part.



Sec. 536.109  Claims not payable under international agreements (for those arising in the United States).

    The following claims are not payable:
    (a) Claims arising from a member of a foreign force or civilian 
component's acts or omissions that do not accord with the objectives of 
a treaty authorizing their presence in the United States.
    (b) Claims arising from the acts or omissions of a member of a 
foreign force or civilian component who has been excluded from SOFA 
coverage by agreement between the sending State and the United States.
    (c) Third-party scope claims arising within the United States that 
are not payable under subparts C, D, or H of this part are listed as 
barred under those subparts. As sending State forces are considered 
assimilated into the U.S. Armed Services for purposes of the SOFAs, 
their members are also barred from receiving compensation from the 
United States when they are injured incident to their service, Daberkow 
v. United States, 581 F.2d 785 (9th Cir. 1978).



Sec. 536.110  Notification of incidents arising under international agreements (for claims arising in the United States).

    To enable USARCS to properly discharge its claims responsibilities 
under the applicable SOFAs, it must be notified of all incidents, 
including off-duty incidents, in which members of a foreign military 
force or civilian component are involved. Any member or employee of the 
U.S. armed services who learns of an incident involving a member of a 
foreign military force or civilian component resulting in personal 
injury, death, or property damage will immediately notify the judge 
advocate (JA) or legal officer at the installation or activity to which 
such person is assigned or attached. The JA or legal officer receiving 
such notification will in turn notify the Commander USARCS. If the 
member is neither assigned nor attached to any installation or activity 
within the United States, the Commander USARCS, will be notified.



Sec. 536.111  Investigation of claims arising under international agreements (for those claims arising in the United States).

    Responsibility for investigating an incident rests upon the area 
claims office (ACO) or claims processing office (CPO) responsible for 
the geographic area in which the incident occurred. The Commander 
USARCS, an ACO, and a CPO are authorized to designate the legal office 
of the installation at which the member of the foreign force or civilian 
component is attached, including the legal office of another