(Parts 400 to 629)
12 U.S.C. 3401
70 FR 60723, Oct. 19, 2005, unless otherwise noted.
(a)
(b)
(2) The provisions of 12 U.S.C. 3401
(3) This part also applies to financial records maintained by financial institutions as defined in § 504.1(c)(1).
(c)
(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)
(3)
(4)
(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)
(6)
(7)
(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)
(2)
(i) Customer has authorized such disclosure (§ 504.2(b));
(ii) Financial records are disclosed in response to a search warrant which meets the requirements of § 504.2(d);
(iii) Financial records are disclosed in response to a judicial subpoena which meets the requirements of § 504.2(e); or
(iv) Financial records are disclosed in response to a formal written request which meets the requirements of § 504.2(f).
(3)
(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)
(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 § 504.2. However, if access to the financial records themselves is required, the procedures in § 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
(a)
(b)
(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
(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
(c)
(d)
(2) No later than 90 days after the search warrant is served, unless a delay of notice is obtained under § 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.
(e)
(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)
(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 § 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 § 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 (§ 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
(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)
(1) In some cases, the requesting law enforcement office may determine that a delay in obtaining access would create an imminent danger of—
(i) Physical injury to a person,
(ii) Serious property damage, or
(iii) Flight to avoid prosecution.
(2) When emergency access is made to financial records, the requesting official (§ 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
(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 § 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)
This record was obtained pursuant to the Right to Financial Privacy Act of 1978, 12 U.S.C. 3401
(2)
(ii) Unless a delay of customer notice has been obtained (§ 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 § 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)
(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
(i)
(2)
(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 § 504.2(i)(2)(i) through (iv).
(3)
(4)
(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 § 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 § 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 § 504.2(f)(3).
(j)
(2) However, to comply with the Financial Privacy Act of 1978, the following guidance will be followed for
(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)
(1) Customer consent (§ 504.2(b)).
(2) Search warrant (§ 504.2(d)).
(3) Judicial subpoena (§ 504.2(e)).
(4) Formal written request (§ 504.2(f)).
(5) Emergency access (§ 504.2(g)).
(6) Foreign intelligence and foreign counterintelligence activities (§ 504.2(j)).
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
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.
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.
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.
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.
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, 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
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.
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.
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.
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:
Dear Mr./Mrs. _____: I certify, pursuant to section 3403(b) of the Right to Financial Privacy Act of 1978, section 3401
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.
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
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.
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
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:
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.
Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
71 FR 46052, Aug. 10, 2006, unless otherwise noted.
(a)
(b)
(2) DOD Computer Matching Program and other Defense Privacy Guidelines may be accessed at the Defense Privacy Office Web site
(c) Definitions are provided at Appendix H of this part.
(d)
(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;
(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
(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 (
(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
(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
(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
(e)
(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.
(a)
(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
(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)
(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)
(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
(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)
(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)
(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)
(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
(a)
(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
(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)
(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
(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
(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.
(a)
(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)
(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.
(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)
(ii)
(iii)
(iv)
(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)
(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)
(a)
(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
(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)
(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)
(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
(d)
(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)
(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)
(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
(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)
(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)
(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.
(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)
(i)
(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
(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
(j)
(2) The Denial Authority must provide the requester with appeal rights.
(k)
(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
(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)
(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)
(2) The case file will be comprised of the request for access/amendment, grants, refusals, coordination action(s), and all related papers.
(a)
(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)
(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)
(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)
(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)
(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
(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.
(a)
(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
(2) The approved twelve exceptions to the Privacy Act “no disclosure without consent” rule are listed at appendix C of this part.
(b)
(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
(4) For the purposes of disclosure and disclosure accounting, the Department of Defense (DOD) is considered a single agency.
(c)
(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)
(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.
(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)
(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)
(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)
(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)
(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)
(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
(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
(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)
(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.
(a)
(2) To meet the training requirements, three general levels of training must be established. They are—
(i)
(ii)
(iii)
(b)
(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
(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
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.
(a)
(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
(6) Descriptions of current exemptions are listed in detail at appendix C of this part.
(b)
(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
(a)
(b)
(2) Privacy Act system of records notices are not subject to formal rulemaking and are published in the
(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.
(a)
(1)
(2)
(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)
(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)
(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;
(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.
(a)
(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)
(a)
(b) A full description of the records prescribed by this part and their disposition/retention requirements are found on the ARIMS Web site at
(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.
(t) Office of Secretary of Defense memorandum, dated July 15, 2005, subject: Notifying Individuals when Personal Information is Lost, Stolen, or Compromised located at
(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. (
(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 (
(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
(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
(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
(a)
(b)
(c)
(d)
(1) Example of a Privacy Act Statement
(i)
(ii)
(iii)
(iv)
(2) [Reserved]
(a)
(b)
(c)
(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
(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.
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)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(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).
(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
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(a)
(b)
(c)
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?
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
(w)
(x)
(y)
(z)
(aa)
(bb)
(cc)
(dd)
(ee)
(ff)
10 U.S.C. 3012, 18 U.S.C. 701, 18 U.S.C. 702
63 FR 27208, May 18, 1998, unless otherwise noted.
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.
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.
(a)
(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)
(2)
(3)
(4)
(5)
(6)
(7)
(a)
(b)
(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)
(d)
(e)
(f)
(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.
(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.
No certificate of authority to manufacture is required to sell articles listed in § 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.
(a) The articles listed in paragraphs (a) (1) through (10) of this section are authorized for manufacture and sale when made in accordance with approved specifications, purchase descriptions or drawings.
(1) All authorized insignia (AR 670-1 and AFI 36-2903).
(2) Appurtenances and devices for decorations, medals, and ribbons such as oak leaf clusters, service stars, arrowheads, V-devices, and clasps.
(3) Combat, special skill, occupational and qualification badges and bars.
(4) Identification badges.
(5) Fourrageres and lanyards.
(6) Lapel buttons.
(7) Decorations, service medals, and ribbons, except for the Medal of Honor.
(8) Replicas of decorations and service medals for grave markers. Replicas are to be at least twice the size prescribed for decorations and service medals.
(9) Service ribbons for decorations, service medals, and unit awards.
(10) Rosettes.
(11) Army emblem and branch of service plaques.
(b) Variations from the prescribed specifications for the items listed in paragraph (a) of this section are not permitted without prior approval, in writing, by TIOH.
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 § 507.8 of this part, except when authorized by the Service concerned.
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)
(2)
(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.
(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.
(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 § 507.5 of this part.
(b) Mere possession by a person of any of the articles prescribed in § 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 § 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.
The heraldic quality control program provides a method of ensuring that insignia items are manufactured with tools and specifications provided by TIOH.
The articles listed in § 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.
A letter of certification to manufacture each heraldic item, except those listed in § 507.14 (a) through (e) of this part, will be provided to the manufacturer upon submission of a preproduction sample. Manufacture
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 (§ 507.5 of this part). A repetition or continuation of violations after official notice thereof will be deemed prima facie evidence of intentional violation.
(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.
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)
(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)
(c)
(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)
(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)
(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)
(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)
Secs. 3012, 3634, 70A Stat. 157, 207; 10 U.S.C. 3012, 3634.
(a)
(b)
(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.
R.S. 1125; 10 U.S.C. 238.
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.
10 U.S.C. 3012.
51 FR 7268, Mar. 3, 1986, unless otherwise noted.
(a)
(b)
(c)
(d)
(2) The Commanding General, U.S. Army Community and Family Support Center (CG, USACFSC) will—
(i) Set procedures for processing debt claims against soldiers.
(ii) Process debt claims received at USACFSC regarding soldiers.
(iii) Carry out the objectives of this regulation to protect the rights of the soldier, his or her family members, and the interests of the Army.
(iv) Advise and assist the directors of Headquarters, Department of the Army (HQDA) agencies, commanders of the major Army commands, and other commanders on matters pertaining to indebtedness of soldiers.
(3) Officers having general court-martial jurisdiction will—
(i) Ensure special emphasis on the indebtedness issue is given in command information programs. This includes soldiers being informed of their responsibility to manage their personal affairs satisfactorily and pay their debts promptly. Also, inform soldiers of the possible consequences of failure to pay their debts.
(ii) Take action on requests to file unfavorable information in a soldier's official personnel file. (See § 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)
(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 § 513.4 will have their debt complaints processed.
(4) Requests for help that do not follow § 513.4 will be returned without action with an explanation as discussed in § 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 § 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 §§ 513.2(a)(3)(xv) and 513.3.)
(i) Making the failure a matter of permanent record.
(ii) Denial of reenlistment (enlisted personnel).
(iii) Administrative separation from the Service.
(iv) Punishment under the Uniform Code of Military Justice (UCMJ). When proper, such misconduct may be charged under articles 92, 123, 133, or 134 of the UCMJ.
(8) Checks that are dishonored for any reason remain proof of indebtedness until—
(i) Made good.
(ii) Proven to be the error of the financial institution on which drawn, or the error of any other person or institution; such action then absolves the soldier of fault. (See § 513.2(c).)
(9) When necessary, commanders and soldiers are urged to seek help from the SJA.
(f)
(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)
(2) Debt collectors who have obtained the needed written consent or court order and who have followed § 513.4 will have their debt complaints processed.
(3) Creditors who collect only on their own behalf are exempt from the Act.
(h)
(i)
(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
(a)
(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 § 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 § 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 § 513.3.
(D) Tell the soldier of his or her legal rights and duties. If appropriate, advise the soldier of his or her rights under article 31, UCMJ. Also, inform the soldier that counseling service is available under the Legal Assistance Program (AR 27-3).
(E) Review all available facts including the soldier's defenses, rights, and counterclaims.
(F) Urge the soldier to seek budget counseling and consumer protection advice, if proper. These services may be obtained from on-post credit unions, Army Community Service Program Counselors (AR 608-1), or through financial management seminars or workshops.
(G) Help the soldier in settling or in liquidating the debt. Give the soldier a copy of DA Pam 360-520 if proper. Answer any questions that he or she might have.
(H) Have the soldier sign a statement allowing or forbidding release of information to the claimant (DA Form 4817-R). AR 340-17 and AR 340-21, paragraph 3-3 govern this.
(I) Ask the soldier about his or her intentions. Give the soldier the chance to furnish a voluntarily signed statement admitting or denying the complaint or declining to do either.
(ix) Advise the claimant promptly that the soldier has been told of the complaint.
(x) Summarize the soldier's intentions if the soldier allows release of the information.
(xi) If proper, advise the claimant that indebtedness disputes must be resolved in a civil court of competent jurisdiction.
(xii) Ask the claimant to write, if necessary, directly to the soldier or his or her commander.
(xiii) Retain the statement allowing or forbidding release of information to the claimant with the case file for future reference. (See § 513.3)
(xiv) Monitor actions closely to ensure promises made to claimants are being met.
(xv) Consider administrative or punitive action, if proper (See §§ 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)
(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 § 513.5 for procedures governing processing of claims for nonactive duty or discharged personnel.
(c)
(2) Commanders must answer all check complaints, other than those discussed in § 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)
(1) Give USACFSC or DA officials complete data on all inquiries.
(2) Seek the advice of the SJA before replying to a court order if necessary.
(3) State “not applicable” to items that do not apply.
(4) If applicable, advise USACFSC or DA officials—
(i) Whether the soldier acknowledges the debt.
(ii) Of the corrective action taken (to include the amounts and dates payments will be made).
(iii) Of the method of payment (for example, personal check).
(iv) Whether the soldier allowed or forbade release of the information given. (See DA Form 4817-R.)
(v) Whether the soldier is following the terms of a court order.
(vi) Whether the soldier's actions follow Army policy as stated in this regulation.
(vii) In the reply, include your name, unit address, and your automatic voice network (AUTOVON) number. If no AUTOVON Number is available, include a commercial or other number where the unit can be reached.
(5) Return to USACFSC or DA officials inquiries received after the soldier has been transferred. Include a copy of his or her permanent change of station orders.
(a)
(1) Making it a matter of permanent record (§ 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 § 513.1(e)(7).)
(b)
(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 (§ 513.3(b)(3)) if warranted by further evidence.
(a)
(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 (§ 513.4(f)).
(5) Certificate of Compliance certifies the creditor has complied with the full disclosure requirements of Federal or State laws and regulations, State laws regarding contact with the employer of the debtor, and the application of the Standards of Fairness to the consumer credit transaction.
(6) Full disclosure information shows what the soldier should know about contract terms.
(7) The Fair Debt Collection Practices Act contains other conditions a creditor must meet. (See § 513.1(g)).
(b)
(c)
(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 § 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 §§ 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 § 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 § 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 § 513.4(c) (1) through (4) which apply.
(7) Separate letters should be written on each account for prompt and efficient processing.
(8) Letters lacking data will be returned for added documents.
(d)
(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 § 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 § 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 § 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 § 513.1(g).)
(12) The debt is covered by an order of a bankruptcy court.
(e)
(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)
(1) Claims from private parties selling personal items (for example, car,
(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 § 513.4(f) (1) through (7).
(a)
(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 § 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 § 513.5(c) are met.
(b)
(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 § 513.5(c) are met.
(c)
(1) The person consents in writing to the release of his or her address.
(2) The claimant sends a court order directing the release of the address.
(3) Any other reason that does not constitute a violation of the Privacy Act of 1974.
(d)
(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.
Required Publications.
Maintenance and Dispostion of Records in TOE Units of the Active Army, the Army Reserve and the National Guard. (Cited in § 513.3(b)(2)).
Release of Information and Records from Army Files. (Cited in § 513.2(a)(3)(viii)(H)).
The Army Functional Files System. (Cited in § 513.3(b)(2)).
The Army Privacy Program. (Cited in §§ 513.1(d)(5)(iv) and 513.2(a)(3)(viii)(H)).
Unfavorable Information. (Cited in § 513.3(b) (2) and (3)).
Soldiers' and Sailors' Civil Relief Act. (Cited in § 513.4(b)).
Credit: Master or Servant. (Cited in §§ 513.2(a)(3)(viii)(G) and 513.4(a)(4)).
Uniform Code of Military Justice. (Cited in §§ 513.1(e)(7)(iv), 513.2(a)(3)(viii)(D) and 513.3(a)(4)).
Related Publications.
A related publication is merely a source of additional information. The user does not have to read it to understand this regulation.
White House Liaison, Communications, and Inspections.
Internal Control Systems.
Legal Assistance.
Pricing for Materiel and Services.
USAR—Mission, Organization, and Training.
Credit Unions.
Control and Prevention of Abuse of Check Cashing Privileges.
Banking Service on Army Installations.
Army Reenlistment Program.
Army Community Service Program.
Family Support, Child Custody, and Paternity.
Officer Personnel (Separations).
Enlisted Personnel (Separations).
Indebtedness of Military Personnel.
Federal Reserve Board Regulation Z Truth in Lending.
Prescribed Forms.
Consent/Nonconsent to Disclose Personal Information. (Cited in §§ 513.2(a)(3)(viii) (A) and (H), and 513.2(d)(4)(iv)).
Referenced Forms.
Delay, Referral, or Follow-Up Notice.
Return Receipt, Registered, Insured, and Certified Mail.
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.
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 §§ 226.3, 226.9 (1978)).
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
59 FR 38236, July 27, 1994, unless otherwise noted.
(a) This part prescribes policies and procedures for the following:
(1) Defensive and affirmative litigation in Federal and state civilian courts where the Army or DOD has an interest in the matter.
(2) Proceedings before Federal or state administrative bodies, such as utility rate commissions.
(3) Release of official information and testimony by DA personnel with regard to litigation.
(4) Remedies for procurement fraud and corruption.
(5) Environmental civil litigation and administrative proceedings.
(6) Proceedings before the Office of Special Counsel.
(b) This regulation does not apply to DA or DOD proceedings such as courts-martial or administrative boards.
Applicable publications and forms are listed in appendix A to this part.
(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.
(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 § 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.
(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
(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.
(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.
Mailing addresses for organizations referenced in this regulation are in appendix B to this part.
(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.
(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.
(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.
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.
(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
(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.
(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.
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.
(a) Legal proceedings requiring reporting. Actions must be taken upon commencement of litigation or administrative proceedings in which the United States has an interest. Typically, the Secretary of the Army, DA, the United States, or DA personnel are named as defendant in a lawsuit or as respondent in an administrative proceeding. A nonexclusive listing of cases in which the United States has an interest include the following:
(1) Suits for damages, injunctive relief, or other action filed against the government or against DA personnel in their official capacity.
(2) Suits alleging individual liability arising from performance of official duties by DA personnel.
(3) Actions affecting DA operations or activities or which might require official action by DA personnel.
(4) Actions arising out of DA contracts, subcontracts, or purchase orders wherein the government might be required to reimburse a contractor for litigation expenses.
(5) Bankruptcy proceedings in which the United States or its instrumentalities may have an interest, including bankruptcies involving government contractors.
(b) Command and agency responsibility. Commanders and supervisors of Army units, installations, or organizations will ensure reports required by this section are promptly submitted.
(c) Reports to HQDA. Reports required by this regulation will be made telephonically or mailed to the responsible organization at DA. Appendix B to this part contains mailing addresses for these offices. Except in the situations described below, reports required by this chapter will be made to Litigation Division:
(1) Actual or potential litigation (or administrative infringement claims) involving patents, copyrights, or trademarks will be made to Intellectual Property Law Division.
(2) Reports of pending or prospective litigation involving taxation will be made to Contract Law Division.
(3) Communications, transportation, and utility services reports will be made to Regulatory Law Office.
(4) Reports involving environmental and natural resource litigation and administrative proceedings will be made to Environmental Law Division.
(5) Potential civil recovery reports in cases of procurement fraud and corruption will be made to Procurement Fraud Division.
(6) Reports involving the felony prosecution program and magistrate court prosecutions will be made to Criminal Law Division, OTJAG.
(7) Cases before the Armed Services Board of Contract Appeals and the General Services Board of Contract Appeals will be made to Contract Appeals Division.
(d) Classified information. Information required by this regulation will be submitted in an unclassified form if possible. If downgrading or declassification is not feasible, the classified material should be separated from the report and forwarded under separate cover.
(e) Other reporting requirements. Reports required by this chapter are in addition to and do not satisfy any other reporting requirement, such as the following: notifying the FBI of offenses pursuant to AR 27-10; submitting serious incident reports pursuant to AR 190-40; reporting procurement fraud or other irregularities per Defense Federal Acquisition Regulation Supplement, section 209.406-3 (48 CFR 209.406-3); reporting the exercise of criminal jurisdiction by foreign tribunals over U.S. personnel pursuant to AR 27-50; or, reporting bankruptcies per AR 37-103.
(f) Reports control exemption. The reports required herein are exempt from reports control under AR 335-15, paragraphs 3-3a(5) and 5-2e(4).
(a) Individual procedures. DA personnel served with civil or criminal process concerning a proceeding in which the United States has an interest (§ 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.
(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 § 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
(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.
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.
(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.
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(c)
(d)
(e)
SJAs or legal advisers will comply with the directives cited below concerning actual or prospective litigation involving the following types of cases:
(a) Taxation.
(1) Contractor transactions. (FAR and DFARS, 48 CFR parts 29 and 229).
(2) Army and Air Force Exchange Service (AAFES) activities. (AR 60-20).
(3) Purchase or sale of alcoholic beverages. (AR 215-2).
(4) Nonappropriated fund and related activities. (AR 215-1).
(b) Tort and contract claims, insurance and litigation involving nonappropriated fund activities. (AR 215-1).
(c) Annexation of Army lands. (AR 405-25).
(d) Communications, transportation, and utility services administrative proceedings. Any contracting officer or other Army official responsible for the acquisition of communications, transportation, utilities (gas, electric, water and sewer), or military mail services, who becomes aware of any action or proceeding of interest to the Army, will promptly refer the matter to the SJA or legal adviser, who will take the actions prescribed in § 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 § 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.
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
(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 § 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.
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.
(a)
(b)
(c)
(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).
(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
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.
(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.
(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
(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).
(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
(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.
(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
(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.
(a)
(b)
(c)
(d)
(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,
(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.
(a)
(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)
(c)
(a)
(1) A litigation report (See § 516.23 of this part) that demonstrates a factual basis for the claim and a theory of recovery under applicable state law. (See Fed. R. Civ. P. 11)
(2) Copies of all medical records and bills reflecting the reasonable value of the medical care furnished to the injured party, including DA Form 2631-R (Medical Care-Third Party Liability Notification), and DA Form 3154 (MSA Invoice and Receipt). These documents should be authenticated as necessary on a DA Form 4.
(3) Copies of all documents necessary to establish the value of lost or damaged property.
(b)
(a)
(b)
(a)
(b)
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.
(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
(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.
(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,
(b) Definitions. (See appendix F to this part).
(a)
(b)
(c)
(d)
(e)
(f)
(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)
(h)
(a)
(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)
(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.
(a)
(b)
(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 § 516.42).
(c)
(d)
(a)
(b)
(1) Has the requester complied with DA policy governing the release of official documents in § 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 § 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?
If the deciding official, after considering the factors set forth in § 536.44, determines that all or part of requested official records are releasable, copies of the records should be furnished to the requester.
(a) General. If the deciding official, after considering the factors in § 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
(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 § 516.41(g).
(a)
(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)
(c)
(d)
(a) In instances involving § 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 § 516.47(a). The deciding official will determine whether to release the information sought under the principles established in § 516.44. If funding by the United States is requested, see § 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 §§ 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.
(a)
(b)
(c)
(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)
(e)
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.
(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.
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.
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.
(a) Status of witness. A military member authorized to appear as a witness for the United States, including those authorized to appear under § 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
(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.
(a)
(b)
(c)
(d)
(a)
(1) Whether a consideration listed in § 516.47(a)(1) through (a)(3) applies.
(2) Whether the information requested is releasable under the principles established in § 516.43 through § 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)
(c)
(d)
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.)
(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.
(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 § 516.64(c)(2) are prepared, and that such information is used to determine if further inquiry is warranted to prevent reoccurrence and to detect other possible fraud. Impact statements will not be released to prosecutive agencies until reviewed by PFD. When appropriate, PFD will coordinate with other DOD agencies to establish a lead agency for victim impact statements in multi-DOD agency cases.
(b) The Commanding General, USACIDC, will take the following actions:
(1) Notify PFD of any investigations involving fraud or corruption related to procurement activities.
(2) Notify other DOD component criminal investigative organizations when investigations involving fraud or corruption affect that component. This includes evidence of fraud by a contractor, subcontractor, or employee of either, on current or past contracts with, or affecting, that component.
(3) Notify the Defense Investigative Service of any investigations that develop evidence which affects DOD cleared industrial facilities or personnel.
(4) Determine the effect on any ongoing investigations or prosecutions of any criminal, civil, contractual, or administrative actions being considered by a centralized organization and advise of any adverse impact.
(5) Promptly provide commanders, contracting officers, Procurement Fraud Advisers, and suspension and debarment authorities, when needed to allow consideration of applicable remedies, any court records, documents, or other evidence of fraud or corruption from ongoing or completed criminal investigations. In cases of indictment or conviction of a contractor or individual, the information will be provided in time for initiation, if appropriate, of suspension or debarment action within 30 days of the indictment or conviction.
(6) Provide prosecutive authorities and centralized organizations with timely information on the adverse impact on a DOD mission of fraud or corruption that relates to DOD procurement activities. This information will be obtained from individuals such as the head of the contracting agency, appropriate commanders, and staff agencies. Some examples of adverse impact on a DOD mission are endangerment of personnel or property, monetary loss, compromise of the procurement process, or reduction or loss of mission readiness.
(7) Discuss regularly with Procurement Fraud Advisers the status of significant investigations of fraud or corruption and their coordination with prosecutive authorities and provide documents and reports resulting from the investigations.
(c) Commanders of service schools conducting procurement or procurement-related training (such as The Judge Advocate General's School, the U.S. Military Police School, and the U.S. Army Logistics Management Center) will ensure the following:
(1) All procurement and procurement-related training includes a period of instruction on fraud and corruption in the procurement process. The length of the period of instruction will be appropriate to the duration and nature of the training.
(2) Training materials are developed to support that training.
(3) Training materials developed will be sent to MACOM PFI Coordinators.
(d) MACOM commanders and heads of contracting activities will ensure the following:
(1) Substantial indications of fraud or corruption relating to Army contracts or Army administered contracts are reported promptly to the supporting USACIDC element and the Procurement Fraud Division.
(2) Information provided includes reports by contracting officers under DFARS 209.406-3.
(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.
(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
(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).
(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.
(i) PFD will provide written notification to the Defense Investigative Service of all suspension or debarment actions taken by the Army.
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.
(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.
(a) A specific, comprehensive remedies plan will be developed in each significant investigation involving fraud or corruption that relates to Army procurement activities. When possible, these plans should be forwarded with the DFARS 209.406-3 reports. In no case, however, should the report be delayed an appreciable time pending completion of the plan. The format for a remedies plan is at figure H-2, appendix G, to this part.
(b) The plan will be developed initially by the PFA with the participation of the appropriate criminal investigators and other relevant personnel such as the contracting officer. In significant cases the PFA should also coordinate a remedies plan early with PFD. Defective product/product substitution remedies plans must comply with the requirements of appendix D to this part.
(c) A comprehensive remedies plan will include at a minimum the following information and considerations:
(1) Summary of allegations and investigative results.
(2) Statement of any adverse impact on a DOD mission. DOD investigative organizations, commanders, or procurement officials will also provide this information to prosecutive authorities to enhance prosecution of offenses or to prepare a victim impact statement pursuant to Fed. R. Crim. P. 32(c)(2).
(3) The impact upon combat readiness and safety.
(4) Consideration of each criminal, civil, contractual, and administrative remedy available, and documentation of those remedies, either planned, in progress, or completed.
(5) Restrictions on the pursuit of any remedies such as grand jury information or possible compromise of the investigation.
(d) When remedies plans are received by PFD they will be coordinated with the headquarters of the appropriate DOD criminal investigative organization involved.
(e) Testing necessary to support the investigation and remedies plan should comply with figure H-3, appendix G, to this part.
(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
(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 § 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.
(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.
(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.
(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.
(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 § 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
(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.
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.
(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.
(a)
(1) Provide overall guidance on all issues concerning cooperation with OSC, including the investigation of alleged prohibited personnel practices and allegations of improper or illegal conduct.
(2) Review for adequacy and legal sufficiency each OSC report of investigation that must be personally reviewed by the Secretary of the Army.
(3) Ensure compliance with the Civil Service Reform Act of 1978 by obtaining a suitable investigation of allegations of improper or illegal conduct received from OSC. This includes compliance with time limits for reporting results of the investigation and personal review of the report by the Secretary of the Army when required.
(4) Forward to the DOD Inspector General (DODIG) copies of each allegation of improper or illegal conduct referred to DA by OSC.
(5) Delegate to The Judge Advocate General the authority to act on behalf of the DA General Counsel in all OSC investigations of prohibited personnel practices.
(6) Act upon requests for counsel from “accused” or “suspected” employees.
(b)
(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)
(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).
(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
(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
(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.
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.
(a) This subpart implements 10 U.S.C. § 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.
(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.
(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.
(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 § 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 § 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.
(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.
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.
A related publication is merely a source of additional information. The user does not have to read it to understand the regulation.
The following is a list of frequently referred to Department of the Army Services/Divisions/Offices and their mailing addresses:
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.
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.
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
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.
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.
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.
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.
a. Subject to paragraph F.3.e., DoD personnel shall not, in response to a litigation request or demand, produce, disclose, release, comment upon, or testify concerning any official DoD information without the prior written approval of the appropriate DoD official designated in paragraph F.1. Oral approval may be granted, but a record of such approval shall be made and retained in accordance with the applicable implementing regulations.
b. If official DoD information is sought, through testimony or otherwise, by a litigation request or demand, the individual seeking such release or testimony must set forth, in writing and with as much specificity as possible, the nature and relevance of the official information sought. Subject to paragraph F.3.e., DoD personnel may only produce, disclose, release, comment upon, or testify concerning those matters that were specified in writing and properly approved by the appropriate DoD official designated in paragraph F.1. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
c. Whenever a litigation request or demand is made upon DoD personnel for official DoD information or for testimony concerning such information, the personnel upon whom the request or demand was made shall immediately notify the DoD official designated in paragraph F.1. for the Component to which the individual contacted is or, for former personnel, was last assigned. In appropriate cases, the responsible DoD official shall thereupon notify the Department of Justice of the request or demands. After due consultation and coordination with the Department of Justice, as required, the DoD official shall determine whether the individual is required to comply with the request or demand and shall notify the requestor or the court or other authority of the determination reached.
d. If, after DoD personnel have received a litigation request or demand and have in turn notified the appropriate DoD official in accordance with paragraph F.3.c., a response to the request or demand is required before instructions from the responsible official are received, the responsible official designated in paragraph F.1. shall furnish the requestor or the court or other authority with a copy of this Directive and applicable implementing regulations, inform the requestor or the court or other authority that the request or demand is being reviewed, and seek a stay of the request or demand pending a final determination by the Component concerned.
e. If a court of competent jurisdiction or other appropriate authority declines to stay the effect of the request or demand in response to action taken pursuant to paragraph F.3.d., or if such court or other authority orders that the request or demand must be complied with notwithstanding the final decision of the appropriate DoD official, the DoD personnel upon whom the request or demand was made shall notify the responsible DoD official of such ruling or order. If the DoD official determines that no further legal review of or challenge to the court's ruling or order will be sought, the affected DoD personnel shall comply with the request, demand, or order. If directed by the appropriate DoD official, however, the affected DoD personnel shall respectfully decline to comply with the demand. See United States ex rel.
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).
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).
This Directive is effective immediately. Forward two copies of implementing documents to the General Counsel, DoD, within 120 days.
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.
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”).
1.
2.
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.
1. The
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
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
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
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
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.
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.
This Directive is effective immediately. Forward two copies of implementing documents to the Inspector General, Department of Defense, within 120 days.
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
a. False Claims Act (31 USC 3729
b. Anti-Kickback Act (41 USC 51
c. Voiding Contracts (18 USC 218).
d. Truth in Negotiations Act (10 USC 2306(f)).
e. Fraudulent Claims-Contract Disputes Act (41 USC 604)
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.
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.
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.
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:
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.
DOD Directive 5505.5 is contained in 32 CFR part 277.
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.
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.
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.
That organization of a DOD component responsible for coordinating and monitoring of
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.
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.
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.
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.
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 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.
Administrative action taken by a debarring authority to exclude a contractor from Government contracting and Government-approved subcontracting for a specified period.
SJA, legal adviser, or Litigation Division attorney who makes the final determination concerning release of official information.
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.
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.
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.
Those categories of information which may be withheld from the public under one or more provisions of law.
An officer so designated (AR 27-1).
A civilian attorney who is the principal legal adviser to the commander or operating head of any Army command or agency.
Legal action or process involving civil proceedings,
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.
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.
An offense for which the maximum penalty does not exceed imprisonment for 1 year. Misdemeanors include those offenses categorized as petty offenses (18 USC § 3559).
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.
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).
These include—
a. Appointment.
b. Promotion.
c. Adverse action under 5 U.S.C. 7501
d. Detail, transfer, or reassignment.
e. Reinstatement.
f. Restoration.
g. Reemployment.
h. Performance evaluation under 5 U.S.C. 4301
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.
Litigation other than that in which the United States has an interest.
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.
Action taken, or the failure to take action, by a person who has authority to take, direct others to take, recommend, or approve any personnel action—
a. That discriminates for or against any employee or applicant for employment on the basis of race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation, as prohibited by certain specified laws.
b. To solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests, or is under consideration for, any personnel action, unless the recommendation or statement is based on the personal knowledge or records of the person furnishing it, and consists of an evaluation of the work performance, ability, aptitude, or general qualifications of the individual, or an evaluation of the character, loyalty, or suitability of such individual.
c. To coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity.
d. To deceive or willfully obstruct any person with respect to such person's right to compete for employment.
e. To influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment.
f. To grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment.
g. To appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position any individual who is a relative (as defined in 5 U.S.C. 3110) of the employee, if the position is in the agency in which the employee is serving as a public official or over which the employee exercises jurisdiction or control as an official.
h. To take or fail to take a personnel action with respect to any employee or applicant for employment as a reprisal for being a whistleblower, as defined below.
i. To take or fail to take a personnel action against an employee or applicant for employment as a reprisal for the exercise of any appeal right granted by law, rule, or regulation.
j. To discriminate for or against any employee or applicant for employment on the basis of conduct that does not adversely affect the performance of the employee or applicant or the performance of others.
k. To take or fail to take any other personnel action if the taking of, or failure to take, such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in 5 U.S.C. 2301.
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.
A JA or legal adviser responsible for assertion and collection of claims in favor of the United States for property claims and medical expenses.
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.
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.
A process to cause a witness to appear and give testimony, e.g., at a trial, hearing, or deposition.
Administrative action taken by a suspending authority to temporarily exclude a contractor from Government contracting and Government-approved subcontracting.
Officials designated in DFARS, section 9.403, as the authorized representative of the Secretary concerned.
A wrongdoer; one who commits a tort.
This appendix contains figures cited or quoted throughout the text of this part.
In the United States District Court for the Southern District of Texas Corpus Christi Division, No. C-90-100
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.
For its answer to the complaint, defendant admits, denies and alleges as follows:
1. Admits.
2. Denies.
3. Denies.
4. The allegations contained in paragraph 4 are conclusions of law to which no response is required; to the extent they may be deemed allegations of fact, they are denied.
5. Denies the allegations contained in the first sentence of paragraph 5; admits the allegations contained in the second sentence of paragraph 5; denies the remainder of the allegations in paragraph 5.
6. Denies the allegations in paragraph 6 for lack of knowledge or information sufficient to form a belief as to their truth.
7. Denies each allegation in the complaint not specifically admitted or otherwise qualified.
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,
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.
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. § 1746).
Executed on: _____
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
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. § 1746).
Executed on: _____
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
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. § 1746).
Executed on: _____
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
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: _____
Dear Mr. Taylor: We have learned that you subpoenaed Captain Roberta Selby to testify at a deposition in the case
Under 32 CFR §§ 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 § 97.6(c), and Army regulations, 32 CFR §§ 516.34-516.40. The request must include the nature of the proceeding, 32 CFR § 516.34(b), and the nature and relevance of the official information sought.
To overcome Federal statutory restrictions on the disclosure of the requested file imposed by the Privacy Act, 5 U.S.C. § 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.
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.
In addition to the above requirements, Captain Selby's supervisor must approve her absence from duty.
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.
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,
Dear Mr. Taylor: This letter responds to your request to interview and depose Captain Buzz Sawyer as a witness in
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.
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.
If you have any questions, please call CPT Taylor at 919-882-4500.
Sincerely,
Dear Mr. Taylor: This responds to your request for Mr. Charles Montrose to appear as an expert witness in private litigation:
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 §§ 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,
Dear Mr. Taylor: This responds to your request to depose Dr. (MAJ) J. McDonald, Fort Smith Medical Treatment Facility. Pursuant to 32 CFR §§ 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.
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. § 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.
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.
If you have any questions, please call me or CPT Taylor at 919-882-4500.
Sincerely,
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.
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.
(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.)
(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.)
A. Criminal Sanctions. (As a minimum, address the following: Are criminal sanctions appropriate? If so, which ones? If not, why not? Has the local U.S. Attorney or other civilian prosecutor been notified and briefed? What actions have been taken or are intended? If and when action is complete, describe action and final results of the action. Other pertinent comments should be included.)
B. Civil Remedies. (As a minimum address the following: Which civil remedies are appropriate? Has the local U.S. Attorney or other civilian prosecutor been notified and briefed? How, when, where and by whom are the appropriate civil remedies implemented? If and when action is completed, describe action and final results. Other pertinent comments should be included.)
C. Contractual/Administrative Remedies. (As a minimum, address the following: Are contractual and administrative remedies appropriate: If so, which ones? If not, Why? If contractual or administrative remedies are considered appropriate, describe how, when, and by whom the remedies are implemented. If and when action is completed, describe action and results of the action. Other pertinent comments should be included.)
D. Restrictions on Remedies Action. (Comment as to why obvious remedies are not being pursued. For example, the U.S. Attorney requests suspension action held in abeyance pending criminal action.)
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.
5. No testing will be initiated unless a test plan has been developed which states the following:
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
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
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.
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.
a. DA will not provide legal representation with respect to a DA initiated disciplinary
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.
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.
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.
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.
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.
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.
71 FR 9222, Feb. 22, 2006, unless otherwise noted.
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).
Required and related publications are listed in Appendix A of this part.
Abbreviations and special terms used in this part are explained in the glossary of AR 25-55.
(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.
(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
(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).
(a)
(b)
(c)
(a)
(b)
(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
(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),
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(a)
(b)
(1)
(2)
(c)
(d)
(1)
(2)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(e)
(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)
(g)
(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
(h)
(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)
(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
(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)
(k)
(l)
(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)
(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)
(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)
(a)
(b)
(1)
(2)
(3)
(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)
(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.
(a) The DA FOIA/PA Office shall maintain in the facility an index of materials described in paragraphs (b)(1) through (4) of § 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
(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.
(a) Any available index of Army material published in the
(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.
Records that meet the exemption criteria of the FOIA may be withheld from public disclosure and need not be published in the
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)
(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)
(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
(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)
(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)
(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)
(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;
(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)
(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
(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)
(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.
(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
(g)
(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
(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)
(i)
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.
(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
(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)
(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.
(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.
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)
(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)
(4)
(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)
(iii)
(iv)
(v)
(5)
(i)
(ii)
(iii)
(6)
(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)
(c)
(d)
(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)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(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)
(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 § 518.19 shall impede the processing of the FOIA request initially received by an Army Activity.
(a)
(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,
(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
(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
(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
(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
(f)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(g)
(h)
(i)
(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
(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)
(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
(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)
(l)
(1) If the submitted information is a proposal in response to a solicitation
(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)
(n)
(o)
(1) Receipt Account 3210 Sale of Publications and Reproductions, FOIA.
(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.
(a)
(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
(b)
(c)
(d)
(e)
(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)
(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)
(f)
(1)
(2)
(3)
(4)
(i)
(ii)
(iii)
(iv)
(v)
(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)
(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)
(i)
(ii)
(iii)
(iv)
(a)
(b)
(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
(c)
(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
(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)
(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-
(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
(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)
(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 (
(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;
(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 (
(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 (
(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)
(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)
(4)
(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)
(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
(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)
(f)
(g)
(h)
(i)
(a)
(b)
(2)
(i)
(ii)
(c)
(d)
(e)
(f)
(g)
(1) Certifying that records are true copies; and/or
(2) Sending records by special methods such as express mail, etc.
(a)
(b)
(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)
(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
(d)
(e)
(f)
(a)
(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)
(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.
The current edition of DD Form 2564 shall be used to submit Activity input. Instructions for completion follows:
(a)
(1)
(2)
(3)
(4)
(5)
(6)
(b)
(2)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(3)
(c)
(1)
(2)
(3)
(4)
(5)
(6)
(d)
(2)
(3)
(e)
(1)
(i)
(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)
(3)
(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)
(5)
(f)
(g)
(1)
(2)
(3)
(h)
(i)
(2)
(3)
(4)
(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)
(a)
(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)
(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;
(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.
(a)
(1) Current publications and records of DA field commands, installations, and organizations. See also:
(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)
(c)
(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)
(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)
(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)
(g)
(h)
(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)
(j)
(k)
(l)
44 U.S.C. 1681, 50 U.S.C. 797, 18 U.S.C. 1001, and E.O. 11021.
48 FR 34028, July 27, 1983, unless otherwise noted.
(a)
(b)
(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)
(2)
(3)
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)
Address: Commander, Kwajalein Missile Range, P.O. Box 26, APO San Francisco 96555.
Electrical Address: CDRKMR MI //BMDSC-RK//
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(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.
(a)
(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)
(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).
(a)
(2) Request for entry authorizations will be evaluated and adjudged as to whether the entry at the time and for the purpose stated will or will not be inimical to the purposes of U.S. national defense.
(b)
(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)
(d)
(e)
(f)
(g)
(h)
(i)
(a)
(i) Personnel being assigned to Kwajalein Missile Range as permanent-party and traveling on official orders.
(ii) Personnel being temporarily assigned to Kwajalein Missile Range and who are traveling on official orders.
(iii) Dependents of permanent-party personnel who are
(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
(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)
(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.
(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)
(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.
(a)
(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)
(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)
(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)
Sec. 3012, 70A Stat. 157; 10 U.S.C. 3012.
General Accounting Office, see 4 CFR chapter I.
26 FR 9989, Oct. 25, 1961, unless otherwise noted.
(a)
(b)
(a)
(b)
(c)
(d)
(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)
(e)
(f)
(2)
(g)
(h)
(i)
(a)
(2)
(b)
(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)
(3)
(ii)
(
(
(c)
(2)
(d)
(2)
(e)
(2)
(3)
(4)
(f)
(2)
(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)
(2)
(a)
(b)
(2)
(3)
(c)
(d)
(e)
(2)
(3)
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.
71 FR 69360, Nov. 30, 2006, unless otherwise noted.
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.
(a)
(1)
(ii) The Gonzales Act, 10 U.S.C. 1089. This act permits individual suits against health care providers for certain torts (see § 536.80).
(iii) Certain suits arising out of legal malpractice, 10 U.S.C. 1054, discussed at § 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 § 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)
(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)
(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.
(iii) Collection from third-party payers of reasonable costs of healthcare services, 10 U.S.C. 1095.
(b)
(c)
(d)
(2) 10 U.S.C. 2731, provides a definition of the word “settle.”
(e)
(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)
(g)
(a)
(b)
(c)
(d)
(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)
(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)
(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)
(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.
(a)
(b)
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.
(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.
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 § 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
(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 § 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 §§ 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.
(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.
(a)
(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 § 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 § 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)
(a)
(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 § 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
(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 § 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)
(2) In addition to the utilization of unit claims officers required by § 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 § 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.
(a)
(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 § 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 § 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)
(2)
(3)
(4)
(ii)
(iii)
(5)
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 § 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.
(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).
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.
Commanders of MACOMs, through their SJAs, shall:
(a) Assist USARCS in monitoring ACOs and CPOs under their respective
(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 § 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.
(a)
(1)
(2)
(3)
(4)
(5)
(b)
(c)
(2)
(d)
(e)
(f)
(g)
(h)
(a)
(b)
(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.
(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. § 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)
(a)
(b)
(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
(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)
(d)
See also § 536.32 for information on transferring claims among armed services branches.
(a)
(b)
(c)
(d)
See also § 536.32 for information on transferring claims among armed services branches.
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.
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.
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.
(a)
(b)
(c)
(d)
See the parallel discussion at DA Pam 27-162, paragraph 2-1.
(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
(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.
See the parallel discussion at DA Pam 27-162, paragraph 2-2.
(a)
(1) At the request of the area claims authority, commanders and heads of
(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 § 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)
(c)
See the parallel discussion at DA Pam 27-162, paragraph 2-3.
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.
(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.
(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 § 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.
See the parallel discussion at DA Pam 27-162, paragraph 2-5.
The following are proper claimants:
(a)
(1)
(2)
(b)
(2)
(c)
(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)
(e)
(f)
(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
(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)
(h)
See the parallel discussion at DA Pam 27-162, paragraph 2-6.
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 § 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.
(a)
(b)
(c)
See the parallel discussion at DA Pam 27-162, paragraph 2-8.
(a) A properly filed claim stops the running of the SOL when it is received by any organization or activity of the
(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 §§ 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:
(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:
(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:
(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).
See the parallel discussion at DA Pam 27-162, paragraph 2-9.
A claim file will be opened when:
(a) Information that requires investigation under § 536.23 is received.
(b) Records or other documents are requested by a potential claimant or legal representative.
(c) A claim is filed.
See the parallel discussion at DA Pam 27-162, paragraph 2-10.
(a) Claims filed with the wrong federal agency, or claims that should be
(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.
See also §§ 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.
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.
(a)
(b)
(c)
(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 § 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)
(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)
(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
(f)
(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)
(g)
(h)
(i)
(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
(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)
(k)
(1)
(2)
(3)
(l)
(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)
(n)
See parallel discussion at DA Pam 27-162, paragraph 2-1.
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.
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.
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.
(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
(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.
(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 § 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
(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.
(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.
(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
(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, § 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.
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.
(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 §§ 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.
For further discussion see DA Pam 27-162, paragraph 2-37.
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.
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 §§ 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 §§ 536.107
(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 § 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 § 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 §§ 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).
This topic is more fully discussed in DA Pam 27-162, paragraph 2-39.
(a)
(b)
(c)
(d)
(e)
(f)